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Exhibit 10.7
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CLUB TRUST REDUCING REVOLVING CREDIT AGREEMENT
(the "Club Trust Credit Agreement")
among
MAJOR LEAGUE BASEBALL TRUST
and
FLEET NATIONAL BANK
and
CLUB TRUSTS DEEMED TO BE PARTIES HERETO
Dated as of June 28, 1996
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TABLE OF CONTENTS
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Page
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ARTICLE I - Definitions and Accounting Terms.................................................................... 1
SECTION 1.01. Certain Defined Terms................................................................... 1
SECTION 1.02. Computation of Time Periods............................................................. 1
SECTION 1.03. Accounting Terms........................................................................ 1
ARTICLE II - Amounts and Terms of the Loans..................................................................... 2
SECTION 2.01. The Club Trust Loans.................................................................... 2
SECTION 2.02. Making the Loans........................................................................ 3
SECTION 2.03. Fees.................................................................................... 4
SECTION 2.04. Reduction of Maximum Available Amount................................................... 4
SECTION 2.05. Principal Repayment..................................................................... 7
SECTION 2.06. Interest................................................................................ 7
SECTION 2.07. Additional Interest..................................................................... 11
SECTION 2.08. Interest Rate Determination and Protection.............................................. 11
SECTION 2.09. Prepayments............................................................................. 12
SECTION 2.10. Increased Costs......................................................................... 14
SECTION 2.11. Illegality.............................................................................. 14
SECTION 2.12. Payments; Limited Recourse; No Cross Collateralization
and Computations........................................................................ 15
SECTION 2.13. Taxes................................................................................... 20
SECTION 2.14. Additional Club Trusts; Creation of Additional Sub-Facilities........................... 26
ARTICLE III - Conditions of Lending............................................................................. 29
SECTION 3.01. Condition Precedent to Initial Loans.................................................... 29
SECTION 3.02. Conditions Precedent to Each Loan....................................................... 31
ARTICLE IV - Representations and Warranties..................................................................... 33
SECTION 4.01. Representations and Warranties of each Club Trust....................................... 33
ARTICLE V - Covenants of the Club Trusts........................................................................ 35
SECTION 5.01. Affirmative Covenants................................................................... 35
SECTION 5.02. Negative Covenants...................................................................... 38
ARTICLE VI - Default............................................................................................ 41
SECTION 6.01. Club Trust Events of Default............................................................ 41
SECTION 6.02. Remedies................................................................................ 46
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ARTICLE VII - The Facilitating Agent............................................................................ 46
SECTION 7.01. Authorization and Action................................................................ 46
SECTION 7.02. Facilitating Agent's Reliance, etc...................................................... 47
SECTION 7.03. Indemnification......................................................................... 48
SECTION 7.04. Successor Facilitating Agent............................................................ 49
ARTICLE VIII - Miscellaneous.................................................................................... 50
SECTION 8.01. Amendments, etc......................................................................... 50
SECTION 8.02. Notices, etc............................................................................ 51
SECTION 8.03. No Waiver, Remedies..................................................................... 53
SECTION 8.04. Costs and Expenses...................................................................... 53
SECTION 8.05. Binding Effect.......................................................................... 55
SECTION 8.06. The Register............................................................................ 55
SECTION 8.07. Limitation of Liability................................................................. 55
SECTION 8.08. Governing Law; Consent to Jurisdiction; Other Matters................................... 56
SECTION 8.09. Execution in Counterparts............................................................... 57
ANNEX A Definitions
EXHIBIT A Club Trust Promissory Note
EXHIBIT B Form of Notice of Borrowing
EXHIBIT C Form of Club Trust Pledge and Security Agreement
EXHIBIT D Form of Ratification Agreement
EXHIBIT E Form of Administration Agreement
SCHEDULE I Schedule of Club Trusts, Participating Clubs and Maximum Available
Amounts
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CLUB TRUST REDUCING REVOLVING CREDIT AGREEMENT
Dated as of June 28, 1996
MAJOR LEAGUE BASEBALL TRUST. a Delaware business trust (the
"MLB Trust"), FLEET NATIONAL BANK , a national banking
association ("Fleet"), as facilitating agent (the
"Facilitating Agent") for the MLB Trust and the Club Trusts
deemed to be parties hereto as a result of the execution of a
Ratification Agreement.
ARTICLE I
Definitions and Accounting Terms
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SECTION 1.01. CERTAIN DEFINED TERMS. Unless otherwise defined herein,
capitalized terms shall have the meanings set forth in Annex A hereto. In
addition, the interpretive guidelines set forth in such Annex A shall be
applicable to this Agreement.
SECTION 1.02. COMPUTATION OF TIME PERIODS. In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles.
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ARTICLE II
Amounts and Terms of the Loans
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SECTION 2.01. THE CLUB TRUST LOANS. The MLB Trust agrees, on the terms
and subject to the conditions hereinafter set forth, to make Loans to the Club
Trusts pursuant to this Agreement from time to time on any Monthly Transaction
Date during the period from the date hereof until the Termination Date in an
amount with respect to each Club Trust up to the Maximum Available Amount for
such Club Trust and in an ag(ire(,ate amount not to exceed at any time the sum
of all the outstanding Maximum Available Amounts corresponding to the Club Trust
Sub-Facilities (initially, $290,000,000), as such amount shall be reduced
pursuant to Section 2.04 and increased pursuant to Section 2.14 and 8.01 (the
"Total Commitment"); PROVIDED, HOWEVER, that the aggregate amount of all Loans
made to any particular Club Trust shall not at any time exceed such Club Trust's
Maximum Available Amount under its Club Trust Sub-Facility (initially, either
$25,000,000 under Option A or $40,000,000 under Option B, as reduced by the
amount of the Labor Contingency Interest Reserve, if applicable). Each Loan with
respect to a Club Trust shall be in a minimum of 1,000,000 and an integral
multiple of $500,000, PROVIDED, HOWEVER, that at any time any Loan(s) shall be
outstanding hereunder with respect to such Club Trust, such Loan(s) shall
aggregate at least $5,000,000. The Loans with respect to each Club Trust shall
be evidenced by a Club Trust Note. Each Club Trust Note shall be payable on the
Final Payment Date. Within the limits of the Commitment and its Maximum
Available Amount, and provided that all conditions set forth in Section 3.01 or
3.02, as the case may be, have been satisfied. each Club Trust may borrow,
prepay pursuant to Section 2.09 and reborrow under this Section 2.01.
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SECTION 2.02. MAKING THE LOANS.
(a) Each Loan to a Club Trust shall be made on notice, given not later
than 12:00 noon (Boston time) on the third Business Day prior to the Monthly
Transaction Date of the proposed Loan, by the related Club Trust to the MLB
Trust and the Facilitating Agent. Any such notice of a Borrowing (a "Notice of
Borrowing") shall be by telecopier, telex or cable, confirmed immediately in
writing, in substantially the form of Exhibit B hereto, specifying therein (i)
the Club Trust with respect to which the Loan is requested, (ii) the related
Monthly Transaction Date Of such Loan, (ill) the amount of such Loan and (iv)
any amount of such Loan which is to be subject to a LIBO Rate Option (which
amount shall be a minimum of $1,000,000 and an integral multiple of $500,000)
and the initial Interest Period (consistent with the provisions of Section
2.06(b)) for any such amount which is to be subject to a LIBO Rate Option. On
the date of each Loan and upon fulfillment of the applicable conditions set
forth in Article III, the MLB Trust shall make available such Loan proceeds to
the Club Trusts in their respective Distribution Accounts.
(b) Each Notice of Borrowing shall be irrevocable and binding on the
related Club Trust. Subject to the provisions of Section 2.12, each Club Trust
shall indemnify the MLB Trust against any loss, cost or expense incurred by the
MLB Trust as a result of any failure to fulfill, on or before the date specified
in such Notice of Borrowing for any related Loan, the applicable conditions
related to its Loan set forth in Article 111, including any loss payable by the
MLB Trust to any Bank pursuant to MLB Credit Agreement because such related Loan
is not made on such date.
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SECTION 2.03. FEES.
(a) Each Club Trust agrees to pay to the MLB Trust a commitment fee on
the average daily unused portion of the MLB Trust's Total Commitment
attributable to such Club Trust from the date hereof until the Termination Date
at the rate of 1/4 of 1% per annum, payable in arrears on the last day of each
March, June, September and December during the term of the MLB Trust's Total
Commitment, commencing September 30, 1996, and ending on the Termination Date
(or, if any such day is not a Business Day, the immediately following Business
Day).
(b) All fees payable pursuant to this Section 2.03 shall be paid on the
date due in immediately available funds or fees shall be withheld by the MLB
Trust from any Loan if the Administrative Agent, in accordance with the terms of
the MLB Credit Agreement, shall have withheld such fees from the Club Trust
Related Advances made to the MLB Trust corresponding to such Loan. Once paid,
all fees shall be nonrefundable under all circumstances.
SECTION 2.04. REDUCTION OF MAXIMUM AVAILABLE AMOUNT.
(a) VOLUNTARY REDUCTIONS. Prior to the Termination Date, each Club
Trust shall have the right, upon at least one Business Day's prior notice to the
MLB Trust and the Facilitating Agent, to terminate in whole or reduce in part
the unused portion of the Maximum Available Amount under its Club Trust
Sub-Facility; PROVIDED that each partial reduction shall be in the aggregate
amount of $250,000 and integral multiples thereof, and PROVIDED FURTHER that
such Club Trust shall not be permitted prior to the Termination Date to reduce
its Maximum Available Amount below $5,000,000, unless the Maximum
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Available Amount with respect to such Club Trust shall be reduced to zero. Any
Club Trust which shall have (1) reduced its Maximum Available Amount under its
Sub-Facility to zero, (ii) paid in full all other amounts owed by it hereunder
and under its Club Trust Pledge and Security Agreement and (iii) caused the
agreement with respect to tile continuation of certain of its and its related
Participating Club's obligations to be delivered as contemplated in Section II
of the related Club Trust Pledge and Security Agreement shall be deemed no
longer to be a party to this Agreement.
(b) REQUIRED REDUCTIONS.
(i) The Maximum Available Amount under each Club Trust's Sub-Facility
shall be reduced, on or prior to each of the dates set forth below, to the
corresponding amounts set forth below for a Club Trust that has elected Option A
or Option B, as the case may be:
Maximum Available
Amount Per Club Trust
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Date Option A Option B
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December 15, 1996 $25,000,000 $38,500,000
December 15, 1997 $25,000,000 $32,000,000
December 15, 1998 $25,000,000 $25,250,000
December 15, 1999 $19,000,000 $19,000,000
December 15, 2000 $12,500,000 $12,500,000
December 31, 2000 Balance Due Balance Due
PROVIDED, that if a National Media Contract with a joint venture between Fox
Broadcasting Company and Liberty providing for annual payments of at least
$46,000,000, a term of at least four years and fee reduction and termination
provisions which are no more materially
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detrimental to the Lenders than those set fourth in the National Media Contract
with Fox Broadcasting Company (as determined in the reasonable judgment of the
Required Banks. which determination shall be deemed made if the Required Banks
have not objected to such provisions within 10 days of delivery of the
substantially final agreement is not fully executed on or before the first
scheduled telecast by such venture of the 1997 Major League Baseball Season (and
in any event on or before July 15, 1997) the Maximum Available Amount per Club
Trust under Option B in 1997 and under Option A and Option B in 1998, 1999 and
2000 shall be reduced by an additional $1,650,000 per Club Trust per year.
(ii) In addition to the foregoing, prior to any Collective Bargaining
Agreement Effective Date, and on and after any Collective Bargaining Agreement
Expiration Date but prior to a subsequent Collective Bargaining Agreement
Effective Date, the Maximum Available Amount under each Club Trust's
Sub-Facility shall be reduced, pursuant to a temporary reduction of the unused
portion of the MLB Trust's Total Commitment attributable to such Club Trust, by
an amount equal to the Labor Contingency Interest Reserve for such Club Trust,
PROVIDED, HOWEVER, that such Labor Contingency Interest Reserve shall be
eliminated and such Club Trust's Maximum Available Amount shall be restored to
the amount otherwise in effect under this Agreement without giving effect to
this Section 2.04(b)(ii) on and after any Collective Bargaining Agreement
Effective Date until the next Collective Bargaining Agreement Expiration Date;
and PROVIDED, FURTHER, that with respect to such a reduction occurring on and
after any Collective Bargaining Agreement Expiration Date, the Labor Contingency
Interest Reserve shall be reestablished by each Club Trust either (i) reducing
its Maximum Available
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Amount pursuant to a temporary reduction of the unused portion of the MLB
Trust's Total Commitment attributable to such Club Trust or, (ii) if it does not
have a Sufficient unused portion repaying (and not reborrowing) a corresponding
amount of unpaid principal of all outstanding Loans from the MLB Trust to such
Club Trust under its Club Trust Sub-Facility (in accordance with and subject to
the provisions of Section 2.12) ratably during the three-month period prior to
the applicable Collective Bargaining Agreement Expiration Date if projected
revenues from the National Media Contracts during such three-month period are
sufficient in the reasonable judgment of the Facilitating Agent to effect such a
reduction and if not, a period comprising a sufficient number of months in the
reasonable judgment of the Facilitating Agent to effect such a reduction.
(iii) In addition to the foregoing, if at any time the aggregate
outstanding amount of all Loans from the MLB Trust to a Club Trust exceeds the
Maximum Available Amount under such Club Trust's Sub-Facility, such Club Trust
shall immediately repay the Loans in the amount of such excess.
SECTION 2.05. PRINCIPAL REPAYMENT. Each Club Trust shall repay the
outstanding principal amount of all Loans from the MLB Trust to such Club Trust
under its Club Trust Sub-Facility in full on the Final Payment Date (subject to
the provisions of Section 2.12).
SECTION 2.06. INTEREST.
(a) ORDINARY INTEREST. Each Club Trust shall pay interest on the unpaid
principal amount of each Loan made to it by the MLB Trust from the date of such
Loan until such principal amount shall be paid in full at the interest rate or
rates determined pursuant to
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Section 2.08(a). Interest on each Loan (or portion thereof) which is not then
subject to the LIBO Rate Option shall be payable quarterly in arrears on the
last day of each March, June. September and December, commencing September 30,
1996, and interest on each LIBO Rate Portion of any Loan shall be payable on the
last day of each Interest Period and. if such Interest Period has a duration of
six months, on the day which is three months after the first day of such
Interest Period and on the last day of such Interest Period.
(b) INTEREST PERIODS. Subject to Section 2.02(a), Section 2.08(c) and
Section 2.10, any Administrator on behalf of the related Club Trust may (i)
request in any Notice of Borrowing delivered pursuant to Section 2.02(a) that
interest on the Loan requested in such Notice of Borrowing (or on a specified
principal amount thereof) be based on the LIBO Rate or (ii) request in any
Notice of Borrowing delivered pursuant to Section 2.02(a) that interest on any
then outstanding Loan (or on a specified principal amount thereof) be based on
the LIBO Rate. in each case for a period (an "Interest Period") for such Loan
(or portion thereof) of one. two, three or six months; PROVIDED, HOWEVER, that:
(i) any Notice of Borrowing given on the Closing Date shall
satisfy the prior notice requirements set forth in Section 2.02(a);
(ii) if any Club Trust fails so to select the duration of any
Interest Period, the duration of such Interest Period shall be one
month;
(iii) no more than five Interest Periods shall be outstanding
with respect to any Club Trust;
(iv) no Interest Period may extend beyond the Final Payment
Date;
(v) a Club Trust may not select any Interest Period which ends
after any principal repayment or reduction date unless, after giving
effect to such selection, the
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aggregate unpaid principal amount of Loans (or portions thereof) with
respect to such Club Trust which are not then subject to a LIBO Rate
Option, together with the appropriate unpaid principal amount of LIBO
Rate Portions of Loans having Interest Periods which end on or prior to
such principal repayment or reduction date shall be at least equal to
the principal amount of Loans with respect to such Club Trust due and
payable on and prior to such date;
(vi) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day; PROVIDED that, if such extension would cause the last day
of such Interest Period to occur in the next following calendar month,
the last day of such Interest Period shall occur on the next preceding
Business Day;
(vii) if any Club Trust (through its Administrator on behalf
of the Club Trust) shall not have delivered to the MLB Trust and the
Facilitating Agent, not later than 12:00 noon (Boston time) on the
third Business Day prior to the termination of any Interest Period, a
Notice of Borrowing requesting that interest on the LIBO Rate Portion
(or any portion thereof) corresponding to such Interest Period be based
on the LIBO Rate for a new Interest Period, then the interest on the
amount of such LIBO Rate Portion (or any portion thereof as to which
such Club Trust has not requested that interest be based on a LIBO
Rate) shall be calculated pursuant to Section 2.06(a)(i) of the MLB
Credit Agreement following termination of the applicable Interest
Period; and
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PROVIDED, FURTHER, that in the case of a Business Interruption Event,
the selection of new Interest Periods for outstanding Loans shall
Continue to be permitted.
(c) DEFAULT INTEREST. Each Club Trust shall pay interest on the unpaid
principal amount of each Loan made to such Club Trust that is not paid when due
and on the unpaid amount of all interest, fees and other amounts payable
hereunder that is not paid when due, payable on demand, at a rate per annum
equal at all times to (i) in the case of any amount of principal, 2.5% per annum
above the rate per annum required to be paid on such Loan immediately prior to
the date on which such amount became due and (ii) in the case of all other
amounts, 2.5% per annum above the Base Rate in effect from time to time;
PROVIDED, however, that in no event shall the amount contracted for and agreed
to be paid by any Club Trust under any provision of this Agreement or its Club
Trust Note exceed the highest lawful rate permissible under any law applicable
thereto.
(d) BUSINESS INTERRUPTION EVENT INTEREST. Upon the occurrence of a
Business Interruption Event, each Club Trust shall pay interest on the unpaid
principal amount of each Loan at a rate per annum equal at all times to 2% per
annum above the rate per annum that would otherwise be required to be paid on
such Loan under this Agreement without giving effect to this Section 2.06(d);
PROVIDED, that following the earlier of the termination of the strike or dispute
which gave rise to a Business Interruption Event or the resumption of games
involving players of Major League Baseball and not replacement players, the
interest rate shall be restored to the rate that would otherwise be required
under this Agreement without giving effect to this Section 2.06(d).
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SECTION 2.07. ADDITIONAL INTEREST. Each Club Trust shall pay to the MLB
Trust the amount of any additional interest required to be paid by the MLB Trust
to any Bank pursuant to Section 2.07 of the MLB Credit Agreement with respect to
the Club Trust Related Advances corresponding to the Loan(s) made by the MLB
Trust to such Club Trust under its Club Trust Sub-Facility. Such amounts shall
be paid to the MLB Trust at or prior to the time that the MLB Trust shall be
required to pay such amount to any Bank.
SECTION 2.08. INTEREST RATE DETERMINATION AND PROTECTION.
(a) The interest rate for each Club Trust's Loan under its Sub-
Facility shall be the interest rate or rates on the Club Trust Related Advances
corresponding to such Loan as determined pursuant to Section 2.06 of the MLB
Credit Agreement.
(b) The Facilitating Agent shall give prompt notice to the related Club
Trust of the applicable interest rate or rates determined by the Administrative
Agent under the MLB credit Agreement for purposes of Section 2.06.
(c) If, pursuant to Section 2.08(c) of the MLB Credit Agreement, each
of the Agent Banks determines that the LIBO Rate for any Interest Period for the
Club Trust Related Advances which correspond to the Loans made to the Club
Trusts hereunder is not available, or if the Required Banks notify the MLB Trust
that the LIBO Rate for any Interest Period for the Club Trust Related Advances
which correspond to the Loans made to the Club Trusts hereunder will not
adequately reflect,the cost to such Required Banks of making, funding or
maintaining their respective Club Trust Related Advances for such Interest
Period:
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(i) the MLB Trust (or the Facilitating Agent on its behalf)
shall forthwith notify the Club Trusts of such event:
(ii) consistent with this Section 2.08 and Section 2.08(c) of
the MLB Credit Agreement, the Banks shall Continue to make Club Trust
Related Advances in accordance with the other terms and conditions of
this Agreement, but the Base Rate shall be the applicable interest rate
for each such Loan hereunder from and after the last day of the then
existing Interest Period therefor; and
(iii) the LIBO Rate Option shall be suspended until reinstated
pursuant to paragraph (d) below.
(d) The LIBO Rate Option shall be reinstated upon notification by the
MLB Trust (or the Facilitating Agent on its behalf) to the Club Trusts that the
circumstances giving rise to the suspension of the LIBO Rate Option pursuant to
paragraph (c) above are no longer applicable.
SECTION 2.09. PREPAYMENTS.
(a) In addition to the required repayment of principal specified in
Section 2.05, with respect to each Club Trust, on any day on which the Maximum
Available Amount under such Club Trust's Sub-Facility is reduced pursuant to
Section 2.04, principal in the amount equal to the excess, if any, of (i) all
outstanding Loans to such Club Trust under its Sub-Facility over (ii) the
Maximum Available Amount as so reduced shall be immediately payable hereunder
and a "Club Trust Prepayment Event" with respect to such excess shall be deemed
to have occurred.
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(b) Other than with respect to any prepayment pursuant to the
provisions of paragraph (c) below, each Club Trust may, upon at least three
Business Days' notice in the case of any LIBO Rate Loan and one Business Day's
notice in the case of any Base Rate Loan to the MLB Trust and the Facilitating
Agent stating the Club Trust with respect to which any such prepayment relates,
the proposed date and aggregate principal amount of each such prepayment, prepay
the Loan(s) under its Club Trust Sub-Facility in whole or ratably in part, and,
if such notice is given, the related Club Trust shall prepay the Loan(s) under
its Club Trust Sub-Facility in whole or ratably in part in the aggregate
principal amount designated in such notice, together with accrued interest to
the date of such prepayment on the principal amount prepaid; PROVIDED, HOWEVER,
that with respect to each Club Trust (i) each partial prepayment shall be in an
aggregate principal amount not less than $250,000, (ii) any prepayment of any
LIBO Rate Portion of any Club Trust's Loan(s) under its Club Trust Sub-Facility
shall be made on, and only on, the last day of an Interest Period for such LIBO
Rate Portion (PROVIDED, THAT prepayments may be made at other times as long as
all costs payable pursuant to Section 8.04(b) are paid) and (iii) no prepayment
shall be permitted pursuant to this Section 2.09 if, after giving effect to such
prepayment, the aggregate principal amount of Loans outstanding under such Club
Trust's Sub-Facility shall be less than $5,000,000, unless the amount of Loans
outstanding under such Club Trust Sub-Facility shall be reduced by such
prepayment to zero.
(c) In accordance with the provisions of Section 2.07 of each Club
Trust Agreement, each Club Trust may, upon at least three Business Days' notice
to the MLB Trust and the Facilitating Agent stating the Club Trust with respect
to which any such prepayment relates and the proposed date and aggregate
principal amount of such
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prepayment, prepay all of its Loans under its Club Trust Sub-Facility in whole,
and, if such notice is given the related Club Trust shall prepay any, and all
Loans under its Sub-Facility in whole, together with accrued interest to the
date of such prepayment on the principal amount prepaid. Any Club Trust which
shall have (i) made such a prepayment pursuant to this paragraph (c), (ii) paid
in full all other amounts owed by it hereunder and under its Club Trust Pledge
and Security Agreement and (iii) caused the agreement with respect to the
continuation of certain of its and its related Participating Club's obligations
to be delivered as contemplated in Section II of the related Club Trust Pledge
and Security Agreement shall be deemed no longer to be a party to this
Agreement.
SECTION 2.10. INCREASED COSTS. Each Club Trust shall pay to the MLB
Trust the amount of any increased costs required to be paid by the MLB Trust to
any Bank pursuant to Section 2.10 of the MLB Credit Agreement with respect to
the Club Trust Related Advances corresponding to the Loan(s) made by the MLB
Trust to such Club Trust under its Club Trust Sub-Facility. Such amounts shall
be paid to the MLB Trust at or prior to the time that the MLB Trust shall be
required to pay such amount to any Bank.
SECTION 2.11. ILLEGALITY.
(a) Notwithstanding any other provision of this Agreement but subject
to the provisions of this Section, if, pursuant to Section 2.11, of the MLB
Credit Agreement, any Bank shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Bank or its Lending Office to
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perform its obligations thereunder to make, fund or maintain Club Trust Related
Advances subject to a LIBO Rate Option thereunder, (i) the obligation of the MLB
Trust to make Loans (or portions thereof) subject to a LIBO Rate Option under
any Club Trust Sub-Facility, shall be suspended until the Administrative Agent
under the MLB Credit Agreement shall notify the MLB Trust and the Banks that the
circumstances causing such suspension no longer exist (prompt notice of which
will be given to the Club Trusts by the MLB Trust (or the Facilitating Agent on
its behalf) and (ii) the Base Rate shall be the applicable interest for all
Loans unless such Club Trust, within five Business Days of notice from the MLB
Trust (or the Facilitating Agent on its behalf) of the above described events,
elects to prepay in full all Loans (or portions thereof) subject to a LIBO Rate
Option under its Club Trust Sub-Facility then outstanding, together with
interest accrued thereon.
(b) Upon the occurrence of the events specified in Section 2.11 (a),
the MLB Trust shall continue to make Loans in accordance with the other terms
and conditions of this Agreement, but the Base Rate shall be the applicable
interest rate for each such Loan until the MLB Trust and the Club Trusts receive
the notice described in 2.11 (a)(i) above.
SECTION 2.12. PAYMENTS; LIMITED RECOURSE; NO CROSS COLLATERALIZATION
AND COMPUTATIONS.
(a) Subject to the provisions of this Section, on any day on which any
amount is due hereunder or under the related Club Trust Pledge and Security
Agreement with respect to any Club Trust Sub-Facility or on which any Club Trust
in accordance with Section 2.09 elects to make a principal payment, subject to
the provisions of the MLB Pledge and Security Agreement, amounts on deposit in
the Debt Service Account attributable to the related Club Trust shall be
withdrawn from the Debt Service Account and such amounts
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shall be applied to make actual or deemed distributions with respect thereto.
Deemed distributions consist of payments to the Banks under MLB Credit Agreement
with respect to Club Trust Related Advances and related obligations (including
Secured Obligations) corresponding to the such Club Trust's outstanding Loans,
payment with respect to which will satisfy such Club's payment obligation to the
MLB Trust hereunder or under the MLB Trust Agreement.
(b) [Reserved].
(c) Each Club Trust's obligations hereunder shall (subject to Section
2.12(d)) be satisfied solely by recourse to the assets of such Club Trust and
its related Club Trust Collateral and none of the Major League Clubs (except as
provided in any Transfer Agreement), the Commissioner, the National League or
the American League or any of their Affiliates shall be obligated with respect
thereto.
(d) (i) The assets of a particular Club Trust and its related Club
Trust Collateral shall be used solely to pay obligations attributable
to such Club Trust and in no event, except as provided in (iii) below,
shall the Club Trust Collateral of one Club Trust be used to pay any
obligations attributable to another Club Trust. Obligations hereunder
or under the MLB Pledge and Security Agreement not specifically
attributable to a Club Trust shall be allocated equally among the Club
Trusts.
(ii) As further provided in paragraphs (e), (f) and (g) below,
the MLB Trust and the Facilitating Agent agree to account for all Loans
under the Club Trust Sub-Facilities, payments and the Club Trust
Collateral so as to prevent cross-collateralization between the assets
and obligations attributable to each of the Club
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Trusts. Except as permitted in (iii) below, any amounts received by the
MLB Trusts in satisfaction of any obligations attributable to any Club
Trust from the assets of, or assets attributable to, another Club Trust
shall be deposited by the MLB Trust into the Debt Service Account and
the obligation previously satisfied by such deposited amounts shall be
reinstated effective as of the date on which such amount was
incorrectly applied.
(iii) The assets attributable to a particular Club Trust or
Club Trusts and any other portion of the Club Trust Collateral
attributable to such Club Trust or Club Trusts may be used to the
extent provided in this clause (iii) to satisfy the obligations of any
other Club Trust (A) if for any reason any such other Club Trust
receives less than its Pro Rata share of Revenues or (B) if (x) such
other Club Trust's related Participating Club is expelled or withdraws
from its respective League or Major League Baseball, as a whole, and
such other Club Trust's share of Revenues is reduced or eliminated and
(y) the American League or the National League, as appropriate, elects
to allow a new Major League Club to become a member of Major League
Baseball. The amount permitted to be paid with respect to the
obligations of any such adversely affected Club Trust (x) in the case
of subclause (A), shall equal the incremental dollar increase in
Revenues allocated to the nonadversely affected Club Trusts as a result
of such nonadversely affected Club Trusts' Pro Rata share of Revenues
being increased by such reduction in or elimination of the adversely
affected Club Trust's Pro Rata share of Revenues and (y) in the case of
subclause (B), shall equal any amounts paid to the remaining
Participating Clubs and included the Club Trusts' Rights in connection
with the
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addition of the next Major League Club following the expulsion or
withdrawal of such Club, PROVIDED, HOWEVER, that in the case of each of
the immediately preceding clause (x) and clause (y), in no event shall
the aggregate amounts paid by all nonadversely affected Club Trusts
exceed the amount of the obligations of the adversely affected Club
Trust under the Transaction Documents. The obligation of any
nonadversely affected Club Trust or Club Trusts to pay any amount on
behalf of an adversely affected Club Trust or Club Trusts shall be
allocated Pro Rata based upon Maximum Available Amount among the
nonadversely affected Club Trusts.
(e) The MLB Trust shall maintain an account or accounts evidencing the
indebtedness of each Club Trust resulting from each Loan under such Club Trust's
Sub-Facility made by the MLB Trust to such Club Trust from time to time,
including the amounts of principal and interest payable and paid to the MLB
Trust from time to time under this Agreement, the Club Trust Pledge and Security
Agreement or the MLB Pledge and Security Agreement with respect to such Club
Trust.
(f) The Facilitating Agent shall maintain the Register pursuant to
Section 8.07 hereof in which Register shall be reported with respect to each
Club Trust and its Sub-Facility (i) each Loan hereunder made with respect to
such Club Trust and the amount of each such Loan, (ii) the Interest Period and
principal amount of each LIBO Rate Portion of each such Loan, (iii) the amount
of any principal or interest due and payable or to become due and payable with
respect to each such Loan and (.iv) the amount of any sum received by the MLB
Trust hereunder, under the Club Trust Pledge and Security Agreement or under the
MLB Pledge and Security Agreement from such Club Trust.
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(g) The entries made in the accounts or the Register maintained
pursuant to paragraphs (e) and (f) of this Section 2.12 shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and the
amounts of the obligations of each Club Trust with respect to each Loan therein
recorded; PROVIDED, HOWEVER, that the failure of the Facilitating Agent to
maintain any such accounts or such Register, as applicable, or any error therein
shall not in any manner affect the obligation of any Club Trust in accordance
with the terms hereof.
(h) It is the intent of the parties hereto that all computations of
interest on the Loans hereunder correspond to the calculation of interest on the
corresponding Club Trust Related Advances and that the calculation of fees
hereunder correspond to the calculation of fees under the MLB Credit Agreement.
Consistent with such intent, all computations of interest based on the LIBO Rate
shall be made by the Facilitating Agent on the basis of a year of 360 days, and
all computations of interest based on the Base Rate and of fees shall be made by
the Facilitating Agent on the basis of a year of 365 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest, fees or additional interest are
payable. Each determination by the Facilitating Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(i) Whenever any payment hereunder or under the Club Trust Notes shall
be stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or any fee, as
the case may be; PROVIDED, HOWEVER,
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that if such extension would cause payment to be made in the next following
calendar month, such payment shall be made on the next preceding Business Day.
SECTION 2.13. TAXES.
(a) Any and all payments by each Club Trust hereunder or under the Club
Trust Notes shall be made, in accordance with Section 2.12, free and clear of
and without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
EXCLUDING, in the case of each of the MLB Trust and the Facilitating Agent,
taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which the MLB Trust or the Facilitating Agent (as
the case may be) is organized or any political subdivision thereof (all such
nonexcluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If any Club Trust shall
be required by law to deduct any Taxes from or in respect of, any sum payable
hereunder or under the Club Trust Notes to the MLB Trust or the Facilitating
Agent, (i) the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under Section 2.13(a), (b) or (c)) the MLB Trust or the
Facilitating Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) such Club Trust shall
make such deductions and (iii) such Club Trust shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, each Club Trust agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which
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arise from any payment made hereunder or under the Club Trust Notes or from the
execution. delivery or registration of, or otherwise with respect to, this
Agreement, the Notes or any other Transaction Document (hereinafter referred to
as "Other Taxes").
(c) Each Club Trust will indemnify the MLB Trust and the Facilitating
Agent for the full amount of Taxes or Other Taxes which are attributable to such
Club Trust (including, without limitation, any Taxes or Other Taxes imposed by
any jurisdiction on amounts payable under Section 2.13(a), (b) or (c)) paid by
the MLB Trust or the Facilitating Agent (as the case may be) and any liability
(including penalties. interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted. Such indemnification shall be made within 30 days from the date the
MLB Trust or the Facilitating Agent (as the case may be) makes written demand
therefor. If the MLB Trust or the Facilitating Agent shall become aware or shall
be notified by an), Club Trust that it is entitled to receive a refund in
respect of Taxes or Other Taxes as to which it has been indemnified by such Club
Trust pursuant to Section 2.13(a), (b) or (c), it shall promptly notify such
Club Trust of the availability of such refund and shall, within 30 days after
receipt of a written request by any such Club Trust, apply for such refund at
the such Club Trust's expense. If the MLB Trust or the Facilitating Agent
receives a refund in respect of any Taxes or Other Taxes as to which it has been
indemnified by any Club Trust pursuant to Section 2.13(a), (b) or (c), it shall
promptly notify the appropriate Club Trust of such refund and shall, within 30
days after receipt of a written request by such Club Trust (or promptly upon
receipt, if such Club Trust has requested application for such refund pursuant
hereto), repay such refund to such Club Trust (to the extent of amounts that
have been paid by such Club Trust under
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Section 2.13(a),(b) or (c) with respect to such refund), net of all
out-of-pocket expenses (including the net amount of taxes, if any, imposed on
such MLB Trust or Facilitating Agent with respect to such refund) of the MLB
Trust or the Facilitating Agent, PROVIDED that each Club Trust, upon the request
of the MLB Trust or Facilitating Agent, agrees to return such refund (plus
penalties, interest or other charges) to the MLB Trust or Facilitating Agent in
the event the MLB Trust or the Facilitating Agent is required to repay such
refund to any person, including the relevant taxing authority.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes withheld by a Club Trust in respect of any payment to the MLB Trust or the
Facilitating Agent, each Club Trust Will furnish to the Facilitating Agent, at
its address referred to in Section 8.02, the original or a certified copy of a
receipt evidencing payment thereof.
(e) (i) Each Club Trust, without duplication of any amounts paid or
indemnified pursuant to Section 2.13(a), (b) or (c), shall indemnify
the MLB Trust and the Facilitating Agent for any MLB Taxes required to
be paid by the MLB Trust or Facilitating Agent (as the case may be) to
any Bank, Bank Transferee, Agent Bank and the Administrative Agent
pursuant to Section 2.13 of the MLB Credit Agreement in an amount equal
to the sum of (x) the amount of MLB Taxes that are specifically
attributable to such Club Trust and (y) an amount equal to the product
of (I) the amount of MLB Taxes not specifically attributable to any
Club Trust and (II) the quotient of (A) the sum of the amount of the
Loans made to such Club Trust that is outstanding on each day in the
period to which such MLB Taxes relate divided by the number of days in
such period divided by (B) the sum of the amount of the Loans made to
all the Club Trusts that is outstanding on each day in the
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period to which such MLB Taxes relate divided by the number of days in
such period; PROVIDED, HOWEVER, that with respect to MLB Taxes
described in clause (y)(I) if (C) there are no Loans outstanding during
any period to which such MLB Taxes relate or (D) such MLB Taxes would
have been imposed if none of the Loans to any Club Trust were
outstanding, then each such Club Trust shall indemnify the MLB Trust
and the Facilitating Agent in an amount equal to the amount of such MLB
Taxes divided by the number of Club Trusts parties to this Agreement;
PROVIDED FURTHER, HOWEVER, that if for any reason after the application
of the foregoing formulas to determine the amount that a Club Trust
must indemnify the MLB Trust and the Facilitating Agent with respect to
MLB Taxes, an amount of MLB Taxes has not been indemnified, then each
such Club Trust shall indemnify the MLB Trust and Facilitating Agent in
an amount equal to the amount of such MLB Taxes that has not been
indemnified divided by the number of Club Trusts parties to this
Agreement; and PROVIDED FURTHER that no Club Trust shall be responsible
for the payment of any such amounts payable by any other Club Trust.
Any such MLB Taxes that are required to be indemnified by a Club Trust
shall be paid by such Club Trust at or prior to the time that the MLB
Trust or Facilitating Agent shall be required to pay such MLB Taxes.
The Facilitating Agent shall have the exclusive authority to apply and
interpret the provisions of this Section 2.13(e) to determine the
amounts each Club Trust is required to indemnify the MLB Trust or
Facilitating Agent pursuant to this Section 2.13(e).
(ii) If the MLB Trust or the Facilitating Agent shall become
aware that it is entitled to receive a refund in respect of MLB Taxes
as to which it has been
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indemnified by any Club Trust pursuant to this Section 2.13(e), it
shall promptly notify the Club Trust(s) that made the related indemnity
payment(s) of the availability of such refund and shall, within 30 days
after receipt of a written request by any such Club Trust, apply or
cause any Bank, Bank Transferee, Agent Bank or Administrative Agent to
apply for such refund at the expense of such Club Trust(s). If the MLB
Trust or the Facilitating Agent receives a refund in respect of any MLB
Taxes as to which it has been indemnified by any Club Trust pursuant(s)
to this Section 2.13(e), it shall promptly notify the appropriate Club
Trust(s) of such refund and shall, within 30 days after receipt of a
written request by such Club Trust(s) (or promptly upon receipt, if
such Club Trust has requested application for such refund pursuant
hereto), repay to such Club Trust an amount equal to the product of (x)
such refund, including any interest thereon, net of all out-of-pocket
expenses (including expenses incurred to apply for such refund and the
net amount of taxes, if any, imposed on the MLB Trust or the
Facilitating Agent in respect of such refund) of the MLB Trust or the
Facilitating Agent, and (y) the quotient of (1) the amount paid by such
Club Trust and (II) the total amounts paid by all the Club Trusts, each
pursuant to this Section 2.13(e) with respect to the MLB Taxes giving
rise to such refund (excluding any expense reimbursements paid to the
MLB Trust or Facilitating Agent with respect to such refund), plus an
amount equal to any expense reimbursed by such Club Trust to the MLB
Trust or Facilitating Agent pursuant to this Section 2.13(e) to apply
for such refund which was deducted by the MLB Trust from the amount of
such refund as an out-of-pocket expense, PROVIDED that each Club Trust,
upon request of the MLB Trust or Facilitating Agent, agrees to return
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such refund (plus penalties, interest or other charges) to the MLB
Trust or Facilitating Agent in the event the MLB Trust or the
Facilitating Agent is required to repay such refund to any person,
including the relevant taxing authority.
(iii) This Section 2.13(e) is intended to equitably apportion
the burden of MLB Taxes among the Club Trusts and equitably apportion
the benefit of any refund received in respect of MLB Taxes. Each Club
Trust, the MLB Trust and the Facilitating Agent agree to negotiate in
good faith to amend this Section 2.13(e) to achieve the intent of this
Section 2.13(e) if, as a result of any unusual circumstances, pursuant
to Section 2.13(e) the burden of MLB Taxes is not equitably apportioned
among the Club Trusts or the benefit of refunds of MLB Taxes are not
equitably apportioned among the Club Trusts; PROVIDED, HOWEVER, each
Club Trust shall comply with this Section 2.13(e) until any such
amendment.
(f) Without prejudice to the survival of any other agreement of each
Club Trust hereunder, the agreements and obligations of each Club Trust
contained in this Section 2.13) shall survive the payment in full of principal
and interest hereunder and under the related Club Trust Note.
(g) If any Club Trust is required to pay any amount pursuant to this
Section 2.13 to any Bank, Bank Transferee, Administrative Agent, Facilitating
Agent, taxing jurisdiction, or other third party, the Administrative Agent shall
have the power and authority (but not the duty) to pay such amounts as specified
in the MLB Pledge and Security Agreement.
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SECTION 2.14. ADDITIONAL CLUB TRUSTS; CREATION OF ADDITIONAL SUB-
FACILITIES.
(a) Subsequent to the Closing Date, but prior to the Termination Date,
at any time during, the first year following the Closing Date, and thereafter
once a calendar quarter, additional Club Trusts may be added as parties to this
Agreement and, in connection with any such addition, a Club Trust Sub-Facility
with respect to each such additional Club Trust shall be created hereunder. The
consent of the Club Trusts party hereto at the time of any such proposed
addition shall not be required in connection with such proposed addition;
PROVIDED, HOWEVER, that such proposed addition shall be subject to the
satisfaction of any conditions thereto established by the Administrative Agent
on behalf of the MLB Trust; and PROVIDED FURTHER, HOWEVER, that any, proposed
addition shall be at a minimum subject to the satisfaction of the conditions
that:
(i) the Maximum Available Amount under such proposed Club
Trust's Club Trust Sub-Facility shall not exceed $25,000,000 for a Club
Trust desiring to elect Option A or $40,000,000 for a Club Trust
desiring to elect Option B, subject to all required reductions in any
Club Trust's Maximum Available Amount pursuant to Section 2.04(b));
(ii) the Total Commitment shall have been increased under and
in accordance with the provisions of the MLB Credit Agreement to make
Club Trust Related Advances to the Borrower in an amount equal to such
proposed Club Trust's Maximum Available Amount under its Sub-Facility;
(iii) no Club Trust Event of Default or event which would
constitute a Club Trust Event of Default but for the requirement that
notice be given or time elapse or both will result from the proposed
addition of such Club Trust and such Club
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Trust's related Participating Club must be entitled to, and must have
transferred to such Club Trust, a full Pro Rata Share of the Rights and
Revenues;
(iv) the representations and warranties contained in Section 3
of the MLB Pledge and Security Agreement and the representations and
warranties contained in Section 4.01 of this Agreement and Section 3 of
the Club Trust Pledge and Security Agreement with respect to such Club
Trust will be true and correct in all material respects as of the date
of such proposed addition.
(v) subject to provisions of paragraph (c) below, such
proposed Club Trust shall have delivered to the MLB Trust and the
Facilitating Agent those items required to be delivered to them by a
Club Trust and such Club Trust shall have taken such actions as are
required to be taken by a Club Trust pursuant to Section 3.01;
(vi) the conditions under the MLB Credit Agreement to the
proposed addition of any Club Trust and the corresponding increase in
the Total Commitment thereunder to make Club Trust Related Advances
shall have been satisfied;
(vii) such proposed Club Trust shall have entered into a
Ratification Agreement;
(viii) the MLB Trust and the Facilitating Agent shall have
received such other approvals, opinions or documents as the MLB Trust
and Facilitating Agent shall have reasonably requested; and
(ix) such proposed Club Trust shall be responsible for the
payment of its allocable share of all amounts payable by the MLB Trust
to the Banks pursuant to Section 8.04(b) of the MLB Credit Agreement as
a result of any reallocation of the
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Club Trust Related Advances among the Banks in connection with the
increase in the aggregate Club Trust Related Advances of the Banks
related to the addition of such propose Club Trust.
(b) Following the addition of any such proposed Club Trust, (i) all
references herein or any Transaction Document to Club Trust, Participating Club,
Administrator, Maximum Available Amount and Club Trust Sub-Facility shall be
deemed to include such proposed Club Trust, its related Participating Club and
Administrator and, as appropriate, such proposed Club Trust's Maximum Available
Amount and Club Trust Sub-Facility and (ii) for all purposes such proposed Club
Trust shall be deemed to be a party to this Agreement.
(c) In connection with the addition of any proposed Club Trust whose
related Participating Club is located outside of the United States, the
Administrative Agent may, in addition to or in lieu of any Uniform Commercial
Code financing statements (and any related requests for information) required to
be delivered in connection with (i) the perfection of the ownership interest of
such proposed Club Trust in the Rights and Revenues contributed to it by such
proposed Club Trust's related Participating Club and (ii) the perfection of the
security interest created by such proposed Club Trust in the Club Trust
Collateral pursuant to its Club Trust Pledge and Security Agreement, require
such proposed Club Trust to deliver such other documents and/or any Opinion of
Counsel as the Administrative Agent may deem appropriate or necessary to assure
itself of such proposed Club Trust's perfected ownership interest in the Rights
and Revenues under the laws of such other jurisdiction. In addition, with
respect to any proposed Club Trust whose related Participating Club is located
outside of the United States, the Administrative Agent may
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require such proposed Club Trust to deliver such other documents and/or any
Opinion of Counsel necessary to assure itself of the absence of any withholding
tax imposed by such other jurisdiction with respect to such proposed Club
Trust's Rights and Revenues.
(d) As contemplated in and subject to the provisions of Section
8.01(b), this Agreement, the MLB Credit Agreement and the MLB Pledge and
Security Agreement may be amended to the extent necessary or desirable in the
sole judgment of the Administrative Agent in connection with the addition of a
proposed Club Trust.
ARTICLE III
Conditions of Lending
---------------------
SECTION 3.01. CONDITION PRECEDENT TO INITIAL LOANS. The obligation of
the MLB Trust to make its initial Loan to any Club Trust under its Sub-Facility
hereunder is subject to the condition precedent that the MLB Trust and the
Facilitating Agent shall have received on or before the day of the initial Loan
thereunder the following, each dated such day, in form and substance
satisfactory to the MLB Trust and the Facilitating Agent (except for the Club
Trust Note):
(a) A pledge and security agreement, duly executed by such Club Trust
and the MLB Trust in substantially the form of Exhibit C hereto (the "Club Trust
Pledge and Security Agreement"), together with (i) executed copies of proper
financing statements to be filed under the Uniform Commercial Code of all
jurisdictions that the MLB Trust may deem necessary or desirable in order to
perfect the ownership interest in the Rights and Revenues contributed by such
Club Trust's related Participating Club to such Club Trust and (ii) executed
copies of proper financing statements to be filed under the Uniform
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Commercial Code of all jurisdictions that the MLB Trust may deem necessary or
desirable in order to perfect the security interests by such Club Trust in the
Club Trust Collateral pursuant to the Club Trust Pledge and Security Agreement.
(b) A certificate of the Club Trustee certifying the names and true
signatures of their officers authorized to sign each Transaction Document to
which such Club Trust is a party and the other documents to be delivered
hereunder or thereunder.
(c) The list of Authorized officers for each Administrator.
(d) Certified copies of all corporate or partnership action taken by
such Club Trust's related Participating Club, including appropriate resolutions
authorizing the execution, delivery and performance of the Transaction Documents
to which it is a party and each other document delivered pursuant to such
documents.
(e) Copies of the Ratification Agreement executed by such Club Trust.
(f) A Certificate of such Club Trust's Administrator certifying that
(a) as of the date of such Club Trust's Ratification Agreement no event has
occurred and is continuing, or would result from any Loan under such Club
Trust's Sub-Facility or from the application of the proceeds therefrom on such
date, which constitutes a Club Trust Event of Default or would constitute a Club
Trust Event of Default but for the requirement that notice be given or time
elapse or both and (b) as of the date of the initial Loan, with respect to each
Club Trust in existence prior to the date of this Agreement, such Club Trust's
related Participating Club is Solvent, and with respect to each Club Trust
organized after the date of this Agreement, such Club Trust's related
Participating Club is Solvent prior to, and will be Solvent after giving effect
to, the transfer of the Rights and Revenues to such Club Trust
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and that such Participating Club is receiving fair and reasonably equivalent
value for the transfer of the Rights and Revenues to its related Club Trust.
(g) The Club Trust Note with respect to the related Club Trust to the
order of the MLB Trust.
(h) Copies of the Transfer Agreement executed by such Club Trust.
(i) The delivery of all collateral with respect to such Club Trust
under the Club Trust Pledge and Security Agreement (including the related Club
Trust Note) to the Administrative Agent for the benefit of all the Banks under
the MLB Credit Agreement.
(j) A favorable opinion of counsel to such Club Trust, substantially in
the form of Exhibit B to its Transfer Agreement and as to such other matters as
the MLB Trust and the Facilitating Agent may reasonably request.
(k) Copies of the Administration Agreement executed by such Club Trust.
(l) Copies of all documents, certificates and opinions delivered by
such Club Trust or its related Participating Club pursuant to the Transaction
Documents.
(m) An election by such Club Trust's Administrator with respect to
Option A or Option B.
(n) Such other documents as the MLB Trust or the Facilitating Agent
shall reasonably request.
SECTION 3.02. CONDITIONS PRECEDENT TO EACH LOAN. The obligation of the
MLB Trust to make a Loan (including the initial Loan) under any Club Trust's
Sub-Facility shall be subject to the receipt by the MLB Trust of the Club Trust
Related Advances with respect to the related Club Trust necessary to make such
Loans and to the further conditions
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precedent that on the date of such Loan (i) the following statements shall be
true (and each of the giving of the applicable Notice of Borrowing with respect
to such Club Trust and the acceptance of the Loan proceeds by such Club Trust
shall constitute a representation and warranty by such Club Trust that on the
date of such Loan such statements are true):
(a) the representations and warranties contained in Section 3 of the
MLB Pledge and Security Agreement and the representations and warranties with
respect to such Club Trust contained in Section 4.01 of this Agreement and
Section 3 of the Club Trust Pledge and Security Agreement are correct in all
material respects on and as of the date of such Loan, before and after giving
effect to such Loan and to the application of the proceeds therefrom, as though
made on and as of such date;
(b) no event has occurred and is continuing, or would result from such
Loan or from the application of the proceeds therefrom, which constitutes a Club
Trust Event of Default or would constitute a Club Trust Event of Default but for
the requirement that notice be given or time elapse or both;
(c) no Business Interruption Event has occurred and is continuing as
evidenced by a notice from the Facilitating Agent to the Club Trusts;
(d) except as provided in the Transaction Documents, none of the
Central Fund Custody Account, the MLB Properties Royalty Account, the Collection
Account or the Debt Service Account or Eligible Investments otherwise to the
credit of, the Central Fund Custody Account, the MLB Properties Royalty Account,
the Collection Account or the Debt Service Account shall be subject to any Lien,
writ, judgment, warrant of attachment, execution or other similar process;
PROVIDED, that with respect to the Central Fund Custody Account and the MLB
Properties Royalty Account, this restriction shall not apply to any
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Lien, writ, judgment, warrant of attachment, execution or other similar process
which (i) attaches or relates solely to the interests of the non-Participating
Clubs in such accounts or (ii) relates only to the interests of a specific Club
Trust in such accounts and not the interests of the Club Trust requesting the
Loan, all of the Club Trusts or the MLB Trust in such accounts;
(e) the MLB Trust shall have received such evidence and instruments
(including stamped receipt Uniform Commercial Code release statements) as it or
the Facilitating Agent may request with respect to the release of any Lien
(other than any Lien created pursuant to the Transaction Documents) on the Club
Trust Collateral existing on the Closing Data as described in Schedule
3.02(b)(v) of the related Transfer Agreement; and
(f) the MLB Trust and the Facilitating Agent shall have received from
such Club Trust such other approvals, opinions or documents as the MLB Trust and
the Facilitating Agent may reasonably request.
ARTICLE IV
Representations and Warranties
------------------------------
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF EACH CLUB TRUST. Each
Club Trust represents and warrants to the MLB Trust as follows:
(a) Such Club Trust is a Delaware business trust duly organized,
validly existing and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by such Club Trust of each
Transaction Document to which it is or will be a party are within such Club
Trust's trust powers, have been duly authorized by all necessary trust action,
and do not contravene
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(i) such Club Trust's certificate of trust or the related Club Trust Agreement
or (ii) any law or any contractual restriction binding on or affecting such Club
Trust, and do not result in or require the creation of any lien, security
interest or other charge or encumbrance (other than pursuant hereto or the
related Club Trust Pledge and Security, Agreement) upon or with respect to any
of its properties.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by such Club Trust of any
Transaction Document to which it is or will be a party.
(d) This Agreement is, and each other Transaction Document to which
such Club Trust will be a party when delivered hereunder will be, legal, valid
and binding obligations of such Club Trust enforceable against such Club Trust
in accordance with their respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be limited by
general principles of equity (whether considered in a suit at law or in equity).
(e) There is no pending or, to the knowledge of such Club Trust,
threatened action or proceeding affecting such Club Trust or the related Club
Trust Collateral before any court, governmental agency or arbitrator, which may
materially adversely affect the financial condition or operations of such Club
Trust or the related Club Trust Collateral or which purports to affect the
legality, validity or enforceability of this Agreement or any Transaction
Document to which such Club Trust will be a party.
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(f) Such Club Trust is not engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System),
and no proceeds of any Loan will be used to purchase or carry any margin stock
or to extend credit to others for the purpose of purchasing or carrying any
margin stock.
(g) The proceeds of each Loan are being used solely for the purpose of
refinancing existing indebtedness, (ii) paying Transaction Costs and (iii)
making distributions for general corporate purposes of such Participating Club
including, without limitation, refinancing such Participating Club's existing
indebtedness (including indebtedness to Affiliates).
ARTICLE V
Covenants of the Club Trusts
----------------------------
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as any Club Trust's Club
Trust Note shall remain unpaid or any Club Trust Secured Obligation of such Club
Trust hereunder shall be outstanding or the MLB Trust shall have any Commitment
under such Club Trust's Club Trust Sub-Facility, such Club Trust will, unless
the MLB Trust shall otherwise consent in writing:
(a) COMPLIANCE WITH LAWS, ETC. Comply in all material respects with all
applicable laws, rules, regulations and orders, such compliance to include,
without limitation, paying before the same become delinquent all taxes,
assessments and governmental charges imposed upon it or upon its property except
to the extent contested in good faith.
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(b) EXISTENCE. Keep in full effect its existence, rights and franchises
as a business trust under the laws of the State of Delaware and obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, any other Transaction Document and each other
instrument or agreement included in the Collateral.
(c) REPORTING REQUIREMENTS. Furnish to the MLB Trust and the
Facilitating Agent:
(i) as soon as possible and in any event within five days
after the occurrence of each Club Trust Event of Default and each event
which, with the giving of notice or lapse of time, or both, would
constitute a Club Trust Event of Default, which is continuing on the
date of such statement, a statement of such Club Trust setting forth
details of such Club Trust Event of Default or other event and the
action which such Club Trust has taken and proposes to take with
respect thereto;
(ii) promptly after the filing or receiving thereof, copies of
all reports and notices which such Club Trust files under ERISA with
the Internal Revenue Service or the Pension Benefit Guaranty
Corporation or the U.S. Department of Labor or which such Club Trust
receives from such corporation; and
(iii) such other information respecting the condition or
operations, financial or otherwise, of such Club Trust as the MLB Trust
or Facilitating Agent may from time to time reasonably request.
(d) FINANCIAL STATEMENTS AND ANNUAL STATEMENT AS TO COMPLIANCE. Cause
to be delivered to the Facilitating Agent, within 120 days after the end of each
fiscal year of such Club Trust (commencing with the fiscal year 1996), a balance
sheet of such Club Trust and
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the related statement of income and cash flows audited upon by the Accountants,
together with a certificate of such accounting firm stating that:
(i) a review of the activities of such Club Trust during such
year and of performance under this Agreement and each other Transaction
Document has been made; and
(ii) based on such review, such Club Trust has fulfilled all
its obligations under this Agreement and each other Transaction
Document throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known
to the Accountants and the nature and status thereof.
(e) ADMINISTRATOR'S CERTIFICATE. Cause to be delivered to the
Facilitating Agent, within 120 days after the end of each fiscal year of such
Club Trust (commencing with the fiscal year 1996), a certificate of an
Authorized Officer of the such Club Trust's Administrator stating that:
(i) a review of the activities of such Club Trust during such
year and of performance under this Agreement and each other Transaction
Document has been made; and
(ii) based on such review, such Club Trust has fulfilled all
its obligations under this Agreement and each other Transaction
Document throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known
to such Administrator and the nature and status thereof.
(f) PROTECTION OF COLLATERAL. In addition to any obligation under the
Club Trust Pledge and Security Agreement, from time to time execute and deliver
all such supplements and amendments to the Club Trust Pledge and Security
Agreement and all such financing
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statements, continuation statements, instruments of further assurance and other
instruments, and take such other action reasonably requested by, the MLB Trust
and the Facilitating Agent necessary or advisable to:
(i) maintain or preserve the lien and security interest (and
the priority thereof) of the Club Trust Pledge and Security Agreement
and the MLB Pledge and Security Agreement or carry out more effectively
the purposes of this Agreement and any other Transaction Document and
the transactions contemplated hereby or thereby;
(ii) perfect, publish notice of or protect the validity of any
Grant made or to be made by the Club Trust Pledge and Security
Agreement;
(iii) enforce any agreements included in the Club Trust
Collateral; or
(iv) preserve and defend title to and the rights of the MLB
Trust in the Club Trust Collateral against the claims of all persons
and parties.
Pursuant to the Transfer Agreement, the Club Trust Pledge and Security
Agreements and the MLB Pledge and Security Agreement, each Participating Club,
each Club Trust and the MLB Trust have designated the Administrative Agent as
its agent and attorney-in-fact to execute any financing statement, continuation
statement or other instrument required by such party pursuant to the Transfer
Agreement, the Club Trust Pledge and Security Agreement, the MLB Pledge and
Security Agreement or this Agreement, as appropriate.
SECTION 5.02. NEGATIVE COVENANTS. So long as any Club Trust's Club
Trust Note shall remain unpaid or any obligation of such Club Trust shall be
outstanding or the MLB
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Trust shall have any Commitment under such Club Trust's Club Trust Sub-Facility,
such Club Trust will not, without the written consent of the MLB Trust:
(a) DISPOSE OF COLLATERAL.. Except as expressly permitted by this
Agreement or the Club Trust Pledge and Security Agreement, sell, transfer,
exchange or otherwise dispose of any of the properties or assets of such Club
Trust or the related Club Trust Collateral unless directed to do so by the
Administrative Agent (acting at the direction of or with the consent of all the
Banks):
(b) SECURITY INTEREST. (i) Permit the validity or effectiveness of the
Club Trust Pledge and Security Agreement to be impaired, or permit the lien of
the Club Trust Pledge and Security Agreement to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be released from
any covenants or obligations with respect to the obligations under this
Agreement or the Club Trust Pledge and Security Agreement except as may be
expressly permitted hereby or thereby, (ii) permit any lien, charge, excise,
claim, security interest, mortgage or other encumbrance (other than any Lien
under any Transaction Document) to be created on or extend to or otherwise arise
upon or burden the related Club Trust Collateral or any part thereof or any
interest therein or the proceeds thereof (other than tax liens and other liens
that arise by operation of law) or (iii) permit the lien of the Club Trust
Pledge and Security Agreement not to constitute a valid first priority (other
than with respect to any such tax or other lien or the lien of the MLB Pledge
and Security Agreement) security interest in the related Club Trust Collateral.
(c) NO OTHER ACTIVITY. Engage in any activity other than borrowing
amounts with respect to Loans in the manner contemplated by this Agreement, the
Club Trust
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Agreement or any other Transaction Document and activities reasonably incidental
thereto or otherwise contemplated by the Transaction Documents.
(d) NO BORROWING. Issue, incur, assume, guarantee or otherwise become
liable, directly or indirectly, for any Debt (including, without limitation,
interest rate swap agreements, interest rate collar agreements, interest rate
futures contracts and interest rate option contracts) except for the Club Trust
Secured Obligations or any other obligation hereunder or under the Club Trust
Pledge and Security Agreement.
(e) GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES. Except as
contemplated by this Agreement or any other Transaction Document, make any loan
or advance or credit to, or guarantee (directly or indirectly or by an
instrument having the effect of assuring another's payment or performance on any
obligation or capability of so doing or otherwise), endorse or otherwise become
contingently liable, directly or indirectly, in connection with the obligations,
stocks or dividends of, or own, purchase, repurchase or acquire (or agree
contingently to do so) any stock, obligations, assets or securities of, or any
other interest in, or make any capital contribution to, any other Person.
(f) CAPITAL EXPENDITURES. Make any expenditure (by long-term or
operating lease or otherwise) for capital assets (either realty or personalty).
(g) REMOVAL OF ADMINISTRATOR. Remove its Administrator without cause
and the written consent of the MLB Trust and the Facilitating Agent, which
consent shall not be unreasonably withheld.
(h) RESTRICTED PAYMENTS. Directly or indirectly, (i) pay any dividend
or make any distribution (by reduction of capital or otherwise), whether in
cash, property, securities or a combination thereof, to the Club Trustee or any
owner of a beneficial interest in such Club
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Trust or ownership or equity interest or security in or of such Club Trust, (ii)
redeem, purchase, retire or otherwise acquire for value any such ownership
interest or security or (iii) otherwise segregate any amounts for any such
purpose; PROVIDED, HOWEVER, that the Club Trust may pay, or cause to be paid,
amounts to the Commissioner, the Club Trust Trustee and such Club Trust's
Administrator and such Club Trust may make, or cause to be made, distributions
as permitted by, and to the extent funds are available for such purpose under,
the MLB Pledge and Security Agreement and the related Club Trust Agreement.
(i) MERGERS, ETC. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) any or all of its assets (whether now owned or hereafter
acquired) to any Person except as permitted by the Club Trust Pledge and
Security Agreement.
(j) FEDERAL INCOME TAX. Take any action which might cause it to be
classified for Federal income tax purposes as an association taxable as a
corporation.
ARTICLE VI
Default
-------
SECTION 6.01. CLUB TRUST EVENTS OF DEFAULT. The occurrence of any one
or more of the following events shall constitute a "Club Trust Event of Default"
with respect to the Sub-Facility of any Club Trust and any Loans made to such
Club Trust hereunder:
(a) default shall be made by such Club Trust in the payment of any
principal of any Loan outstanding under such Club Trust's Sub-Facility when and
as the same shall
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become due and payable, whether at the due date thereof or by acceleration
thereof or otherwise;
(b) default shall be made by such Club Trust in the payment of any
interest on any Loan outstanding under such Club Trust's Sub-Facility or any fee
or any other amount allocable to such Club Trust (other than an amount referred
to in paragraph (a) above) due hereunder, under any other Transaction Document
or under any other agreement with the MLB Trust with respect to such
Sub-Facility when and as the same shall become due and payable, and such default
shall continue unremedied for a period of three days;
(c) any representation or warranty made (or deemed made pursuant to
Section 3.02) by such Club Trust in or in connection with the execution and
delivery of this Agreement or any Transaction Document to which such Club Trust
is a party or the Loans hereunder or in any document, certificate, written
statement or report delivered to the MLB Trust, the Facilitating Agent, the
Administrative Agent, the Agent Banks or any Bank pursuant to this Agreement or
any Transaction Document executed by such Club Trust, shall prove to have been
false or misleading in any material respect when so made, deemed made or
furnished;
(d) default shall be made by such Club Trust in the due observance or
performance of any covenant or agreement of such Club Trust contained herein
(other than those specified in (a), (b) or (c) above or specified elsewhere in
this Section) or in any Transaction Document executed by such Club Trust, and
such default shall continue unremedied for a period of ten days after the giving
of written notice of such default to such Club Trust by the MLB Trust, which
notice shall be given by the MLB Trust at the request of the Facilitating Agent
(itself acting at the request, or with the consent of the
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Required Banks) or may be given by the MLB Trust with the consent of the
Facilitating Agent (itself acting at the request, or with the consent of the
Required Banks);
(e) default shall be made by such Club Trust's related Participating
Club in the due observance or performance of any covenant or agreement of such
Participating Club under its Transfer Agreement or any Transaction Document
executed by such Participating Club, and such default shall continue unremedied
for a period of ten days after the giving of written notice of such default to
such Participating Club by the MLB Trust, which notice shall be given by the MLB
Trust at the request of the Facilitating Agent (itself acting at the request, or
with the consent of the Required Banks) or may be given by the MLB Trust with
the consent of the Facilitating Agent (itself acting at the request, or with the
consent of the Required Banks);
(f) the occurrence of any Bankruptcy Event with respect to such Club
Trust or its related Participating Club;
(g) any judgment, writ, warrant of attachment or execution or similar
process involving an amount in excess of $125,000 shall be issued or levied
against any of the properties of such Club Trust and such judgment, writ,
warrant of attachment or execution or similar process shall not be released,
vacated or fully bonded within 30 days of its issue or levy;
(h) the occurrence of any event of default under any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest
rate futures contract, interest rate option contract or other similar agreement
or arrangement acceptable to the Administrative Agent entered into by or
obtained for the benefit of such Club Trust with an Agent Bank with respect to
the Loans under such Club Trust's Sub-Facility;
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(i) any representation or warranty made by such Club Trust's related
Participating Club in or in connection with the execution and delivery of its
Transfer Agreement or any other Transaction Document executed by such
Participating Club or in any document, certificates written statement or written
report delivered to such Club Trust, the MLB Trust, the Facilitating Agent, the
Administrative Agent, an Agent Bank or any Bank pursuant to such Transfer
Agreement or any Transaction Document shall prove to have been false or
misleading in any material respect when so made or furnished;
(j) the failure of such Club Trust at any time, to have a valid
unencumbered ownership interest (other than any Lien under the Transaction
Documents and other than tax liens and other liens that arise by the operation
of law) in the Club Trust Collateral (including the Rights and Revenues
contributed by the such Club Trust's related Participating Club to such Club
Trust pursuant to the related Transfer Agreement);
(k) the failure of the MLB Trust at any time, to have a first priority
unencumbered security interest (other than any Lien under the Transaction
Documents and other than tax liens and other liens that arise by the operation
or law) in the Club Trust Collateral (including the Rights and Revenues) pledged
to the MLB Trust by such Club Trust pursuant to its Club Trust Pledge and
Security Agreement except as permitted by Section 5.02(b);
(l) the occurrence of any material adverse event with respect to such
Club Trust's related Participating Club, which event has or may have the effect
of reducing or delaying the receipt of Revenues by such Club Trust or otherwise
materially impairing the assets of such Club Trust or delaying payment of any
obligation of such Club Trust under its Club Trust Sub-Facility or Club Trust
Note or any obligation under such Club Trust's
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Club Trust Pledge and Security Agreement, PROVIDED, HOWEVER, that a Business
Interruption Event shall not constitute a Club Trust Event of Default under this
Section 6.01(1) so long as such Club Trust makes all payments required to be
made by it hereunder or under any Transaction Document on a timely basis during
such period;
(m) any accumulated funding deficiency, prohibited transaction,
reportable event, penalty, withdrawal liability, disqualification or termination
under (and as such words and phrases are defined in) ERISA or the Code, as
applicable, in respect of any Plan shall occur, or any action, suit or
proceeding involving or affecting any Plan or any assets of properties of any
Plan shall be adversely determined, that would have or has had (in the
reasonable judgment of the MLB Trust) a material and adverse effect on the
related Participating Club and its ERISA affiliates;
(n) the occurrence of (i) any Club Trust Event of Default under
Sections 6.01(b) or (c) of the MLB Credit Agreement with respect to such Club
Trust or (ii) any Event of Default under Section 6.02 of the MLB Credit
Agreement; or
(o) if as a result of an arbitration between a National Media Contract
Obligor and the Commissioner under any National Media Contract, an award is made
in favor of such National Media Contract Obligor and such award remains
outstanding under any material National Media Contract at the time such National
Media Contract is renewed or extended or a replacement contract is executed, and
such renewal, extension or replacement contract contains a provision which
offsets future fees payable under such renewal, extension or replacement
contract in order to cause the National Media Contract Obligor in whose favor
the award was entered to be paid the remaining balance of the award.
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SECTION 6.02. REMEDIES. In the event that any Club Trust Event of
Default has occurred and is continuing, the MLB Trust shall at the request, or
with the consent of the Facilitating Agent (itself acting at the request, or
with the consent of the Required Banks) (a) declare its obligation to make Loans
under the Sub-Facility to any Club Trust that is the subject of the Club Trust
Event of Default to be terminated and (b) declare the Club Trust Note for the
Club Trust which is the subject of the Club Trust Event of Default, all interest
thereon and all other amounts payable hereunder to be forthwith due and payable,
whereupon such Club Trust Note, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are waived by such Club Trust
hereunder; PROVIDED, HOWEVER, that, in the event of an actual or deemed entry of
an order for relief with respect to any Club Trust under the Federal Bankruptcy
Code, (A) the obligation of the MLB Trust to make Loans to such Club Trust under
its Club Trust Sub-Facility shall automatically be terminated and (B) the
related Club Trust Note, all such interest and all such amounts shall
automatically become due and payable, without presentment, demand, protest or
any notice of any kind, all of which are hereby expressly waived by such Club
Trust.
ARTICLE VII
The Facilitating Agent
----------------------
SECTION 7.01. AUTHORIZATION AND ACTION. The MLB Trust hereby appoints
and authorizes the Facilitating Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement and the Transaction Documents
as are delegated to the
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Facilitating Agent by the terms hereof or thereof, as the case may be, together
with such powers as are reasonably incidental thereto.
SECTION 7.02. FACILITATING AGENT'S RELIANCE, ETC. Neither the
Facilitating Agent, nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement or any other Transaction Document, except
for its or their own gross negligence, willful misconduct or unlawful conduct
hereunder. Without limitation of the generality of the foregoing, the
Facilitating Agent: (a) may consult with legal counsel (including counsel for
the MLB Trust), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts; (b) makes no warranty or representation to MLB Trust and shall not be
responsible to the MLB Trust for any statements, warranties or representations
(whether written or oral) made in or in connection with this Agreement or any
other Transaction Document; (c) shall not have any duty to ascertain or to
inquire as to the performance or observance of any of the terms. covenants or
conditions of this Agreement or the Transaction Documents on the part of any
Club Trust or to inspect the property (including the books and records) of the
Club Trusts; (d) shall not be responsible to the MLB Trust for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement, any Transaction Document or any other instrument or document
furnished pursuant hereto; and (e) shall incur no liability under or in respect
of this Agreement or any Transaction Document by acting upon any notice,
consent, certificate
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or other instrument or writing (which may be by telecopier, telegram, cable or
telex) believed by it to be genuine and signed or sent by the proper party or
parties.
SECTION 7.03. INDEMNIFICATION. Subject to the provisions of Section
2.12, the MLB Trust agrees to indemnify the Facilitating Agent (to the extent
not reimbursed by the Club Trusts), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Facilitating Agent in any way relating
to or arising out of this Agreement, any Transaction Document or any action
taken or omitted by the Facilitating Agent under this agreement or any
Transaction Document, PROVIDED that the MLB Trust shall not be liable for any
portion of such liabilities,obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Facilitating Agent's gross negligence, willful misconduct or unlawful conduct
hereunder. Without limitation of the foregoing, the MLB Trust agrees to
reimburse the Facilitating Agent (from equal and several assessments to each
Club Trust) promptly upon demand for any out-of-pocket expenses (including
counsel fees) incurred by the Facilitating Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
to the extent that the Facilitating Agent is not reimbursed for such expenses
directly or indirectly by the Club Trusts.
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SECTION 7.04. SUCCESSOR FACILITATING AGENT. The Facilitation Agent may
resign at any time by giving notice thereof to the MLB Trust and the Club Trusts
and the Facilitating Agent may be removed at any time with or without cause by
the MLB Trust. Upon any such resignation or removal, the MLB Trust shall have
the right to appoint a successor or Facilitating Agent. If no such successor
shall have been so appointed by the MLB Trust and shall have accepted such
appointment, within 30 days after the retiring Facilitating Agent, then the
retiring Facilitating Agent may, on behalf of the MLB Trust, appoint a successor
Facilitating Agent, which shall be a commercial bank organized under the laws of
the United States of America or of any State thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Facilitating Agent hereunder by a successor Facilitating Agent,
such successor Facilitating Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Facilitating
Agent, and the retiring Facilitating Agent shall be discharged from its duties
and obligations under this Agreement. After any retiring Facilitating Agent's
resignation or removal hereunder as Facilitating Agent, the provisions of this
Article VII shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Facilitating Agent under this Agreement.
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ARTICLE VIII
Miscellaneous
-------------
SECTION 8.01. AMENDMENTS, ETC.
(a) GENERAL AMENDMENTS, ETC. Subject to paragraph (b) with respect to
certain amendments, no amendment or waiver of any provision of this Agreement or
the Club Trust Notes, nor consent to any departure by any Club Trust therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the MLB Trust and the Facilitating Agent (at the request or with the consent
of the Required Banks), and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given; PROVIDED,
HOWEVER, that no amendment, waiver or consent shall, unless in writing and
signed by the Facilitating Agent (at the request or with the consent of all of
the Banks), in addition to the MLB Trust, affect Section 2.04 of this Agreement
or the rights or duties of the Facilitating Agent under this Agreement or any
Club Trust Note.
(b) CLUB TRUST CONSENT, ADDITIONAL CLUB TRUST RELATED AMENDMENTS. No
amendment of this Agreement shall be effective unless the same shall be in
writing and signed by a majority in number of the Club Trusts; PROVIDED,
HOWEVER, that no such amendment shall be effective to reduce the number of Club
Trusts required to consent to any such amendment, without the consent of all the
Club Trusts; PROVIDED, FURTHER, that no amendment to this Agreement to change
the Final Payment Date shall be effective without the consent of (i) all the
Club Trusts deemed to be parties hereto at the time of such proposed amendment
and (ii) all Clubs which are no longer Participating Clubs but which have (or
their related Club Trusts have) continuing obligations pursuant to Section
2.12(d)(iii) of this Agreement as contemplated by Section 11 of the related Club
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Trust Pledge Agreements. Notwithstanding the foregoing, this Agreement, the MLB
Credit Agreement and the MLB Pledge and Security Agreement, to the extent
necessary or appropriate in the sole judgment of the Administrative Agent, may
be amended (i) in case of this Agreement, by action of only the Facilitating
Agent acting at the direction of the Administrative Agent, which direction shall
be given by the Administrative Agent with the consent of the Required Banks, or
(ii) in the case of the MLB Credit Agreement or the MLB Pledge and Security
Agreement, by action of only the Administrative Agent with the consent of the
Required Banks in connection with any amendment (i) to give effect to the
addition of any additional Club Trust and the creation of an additional
Sub-Facility hereunder with respect to such addition pursuant to Section 2.14
and to give effect to the corresponding increase in the Commitment hereunder and
(ii) to give effect to any increase in the Commitment hereunder as a result of
any increase in the Maximum Available Amount of any Club Trust under its Club
Trust Sub-Facility (which increase shall be subject to the conditions determined
by the Administrative Agent); PROVIDED, HOWEVER, that any such amendment shall
be subject to the condition that such amendment not have a material adverse
effect on the Club Trusts party hereto immediately prior to the time of such
amendment. Promptly following any amendment as provided in the immediately
preceding sentence, the Administrative Agent shall provide duplicate copies of
such amendments to the MLB Trust and the Club Trusts.
SECTION 8.02. NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic,
telex or cable communication) and mailed, telecopied, telegraphed, telexed,
cabled or delivered, if to the
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MLB Trust, at its address at Wilmington Trust Company, 1100 North Market Street,
Wilmington, Delaware 19890, Attention: Corporate Trust Administration (facsimile
number (302) 651-8882), with copies to (a) the Commissioner at The Baseball
Office of the Commissioner, 350 Park Avenue, New York, N.Y. 10022, Attention:
Jeffrey White (facsimile number (212) 888-8632), (b) Paul, Weiss, Rifkind,
Wharton & Garrison, 1285 Avenue of the Americas, New York, N.Y. 10019 Attention:
Matthew Nimetz, Esq. (facsimile number (212) 757-3990), (c) the Facilitating
Agent, at its address at Fleet National Bank, One Federal Street, Boston, MA
02211, Attention: Keith J. Collar (facsimile number (617) 346-0590) and (d)
Choate, Hall & Stewart, Exchange Place, 53 State Street, Boston, MA 02109,
Attention: Lyman G. Bullard, Jr., Esq. (facsimile number (617) 248-4000); if to
the Facilitating Agent, at its address at Fleet National Bank, One Federal
Street, Boston, MA 02211, Attention: Keith J. Collar (facsimile number (617)
346-0590), with copies to (a) the Administrative Agent, at its address at Fleet
National Bank, One Federal Street, Boston, MA 02211, Attention: Keith J. Collar
(facsimile number (617) 346-0590), and (b) Choate, Hall & Stewart, Exchange
Place, 53 State Street, Boston, MA 02109, Attention: Lyman G. Bullard, Jr., Esq.
(facsimile number (617) 248-4000); if to any Club Trust, at its address at
Wilmington Trust Company, 1100 North Market Street, Wilmington, Delaware 19890,
Attention: Corporate Trust Administration (facsimile number (302) 651-1576),
with copies to (a) its Administrator at the address set forth in the related
Administration Agreement, (b) the Commissioner at The Baseball Office of the
Commissioner, 350 Park Avenue, New York, N.Y. 10022, Attention: Jeffrey White
(facsimile number (212) 888-8632), and (c) Paul, Weiss, Rifkind, Wharton &
Garrison, 1285 Avenue of the Americas, New York, N.Y. 10019 Attention: Matthew
Nimetz, Esq.
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(facsimile number (212) 757-3990); or, as to each party, at such other address
as shall be designated by such party in a written notice to the other parties.
All such notices and communications shall; when mailed, telecopied, telegraphed,
telexed or cabled, be effective either three days after being deposited in the
mails or when received, or when telecopied, delivered to the telegraph company,
confirmed by telex answerback or delivered to the cable company, respectively,
except that notices and communications to the Facilitating Agent pursuant to
Article II or VII shall not be effective until received by the Facilitating
Agent.
SECTION 8.03. NO WAIVER, REMEDIES. No failure on the part of the MLB
Trust or the Facilitating Agent to exercise, and no delay in exercising, any
right under any Transaction Document shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. COSTS AND EXPENSES.
(a) Subject to the conditions that each Club Trust shall be responsible
for the payment of (x) all amounts specifically attributable solely to it and
(y) an equal portion of all amounts not attributable solely to any other Club
Trust, the Club Trusts are to equally pay on demand all costs and expenses of
the Facilitating Agent and the MLB Trust in connection with the preparation,
execution, delivery, administration, modification and amendment of the
Transaction Documents and the other documents to be delivered under
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the Transaction Documents, including, without limitation, the reasonable fees
and out-of-pocket expenses of counsel for the Facilitating Agent with respect
thereto. Subject to the same conditions set forth in the immediately preceding
sentence, each Club Trust further agrees to pay on demand all costs and expenses
of the MLB Trust and the Facilitating Agent, if any (including, without
limitation, reasonable counsel fees and expenses), in connection with the
enforcement against such Club Trust (whether through negotiations, legal
proceedings or otherwise) of the Transaction Documents and the other documents
to be delivered under the Transaction Documents, including, without limitation,
reasonable counsel fees and expenses in correction with the enforcement of
rights under this Section 8.04(a); PROVIDED, HOWEVER, that the costs and
expenses incurred solely with respect to any amendment contemplated in Section
8.01(b) shall be borne equally by the Club Trust(s) with respect to which such
amendment relates.
(b) If any payment of principal of the LIBO Rate Portion of any Loan
under a Club Trust Sub-Facility is made other than on the last day of an
Interest Period relating to such LIBO Rate Portion, as a result of a payment
pursuant to Section 2.09 or 2.11 or acceleration of the maturity of the Club
Trust Notes pursuant to Section 6.02 or for any other reason, the related Club
Trust shall, upon demand by the MLB Trust (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of the
MLB Trust any amounts required to compensate the MLB Trust for any additional
losses, costs or expenses which it may reasonably incur as a result of such
payment, including without limitation, any loss (including loss of anticipated
profits), cost or expense incurred by reason of the liquidation or redeployment
of deposits or other funds acquired to fund or maintain such Loan.
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SECTION 8.05. BINDING EFFECT. This Agreement shall become effective (a)
with respect to the MLB Trust and the Facilitating Agent, when it shall have
been executed by the MLB Trust and the Facilitating Agent and (b) with respect
to each Club Trust, when such Club Trust shall have signed and the
Administrative Agent shall have accepted its Ratification Agreement and,
thereafter, this Agreement shall be binding upon and inure to the benefit of the
MLB Trust, the Facilitating Agent and each Club Trust party hereto and their
respective successors and assigns, except that none of the MLB Trust or the Club
Trusts party hereto shall have the right to assign its rights hereunder or any
interest herein without the prior written consent of the other.
SECTION 8.06. THE REGISTER. The Facilitating Agent shall maintain at
one of its offices in The City of Boston a register (the "Register") in which it
shall record the identity of each Club Trust, the Maximum Available Amount for
each Club Trust under its Sub-Facility, the principal amount of each Loan and
the Interest Period and principal amount of each LIBO Rate Portion of each
outstanding Loan under the related Club Trust Sub-Facility for each Club Trust.
The Facilitating Agent will make reasonable efforts to maintain the accuracy of
the Register and to promptly update the Register from time to time, as
necessary. The Register shall be available for inspection by the MLB Trust, each
Club Trust and its related Participating Club, at any reasonable time and from
time to time upon reasonable prior notice.
SECTION 8.07. LIMITATION OF LIABILITY. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed and delivered
by Wilmington Trust
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Company, not individually or personally but solely as trustee of the MLB Trust
under the MLB Trust Agreement, in the exercise of the powers and authority
conferred and vested in it, (b) each of the representations, undertakings and
agreements herein made on the part of the MLB Trust is made and intended not as
personal representations, undertakings and agreements by Wilmington Trust
Company but is made and intended for the purpose for binding only the MLB Trust,
(c) except as Wilmington Trust Company shall otherwise expressly agree, nothing
herein contained shall be construed as creating any liability on Wilmington
Trust Company, individually or personally, to perform any covenant either
expressly or implied contained herein, all such liability, if any, being
expressly waived by the Facilitating Agent, the Agent Banks, the Administrative
Agent and the Banks and by any Person claiming by, through or under any of them
and (d) under no circumstances shall Wilmington Trust company be personally
liable for the payment of any indebtedness or expense of the MLB Trust or be
liable for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the MLB Trust under this Agreement or the other
Transaction Documents.
SECTION 8.08. GOVERNING LAW; CONSENT TO JURISDICTION; OTHER MATTERS.
This Agreement and the Club Trust Notes shall be governed by, and construed in
accordance with, the laws of the State of New York without reference to its
choice of law provisions. Each Club Trust hereby submits to the extent effective
under applicable law to the jurisdiction and venue of the state and Federal
courts of New York and agrees that the MLB Trust may, at its option, enforce its
rights hereunder in such courts. To the extent permitted by applicable law, each
Club Trust hereby irrevocably waives the defense of an
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inconvenient forum to maintenance of any action or proceeding by the MLB Trust
in such courts. Each Club Trust hereby irrevocably waives all right to trial by
jury in any action, proceeding or counterclaim arising out of or relating to
this Agreement or any other Transaction Document or any of the transactions
contemplated hereby or thereby.
SECTION 8.09. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as a sealed instrument by their respective officers thereunto duly
authorized, as of the date first above written.
MAJOR LEAGUE BASEBALL TRUST,
as Lender,
By: WILMINGTON TRUST COMPANY, not in
its individual capacity but solely as MLB
Trustee
By: /s/ David A. Vanaskey Jr.
-----------------------------
Name: David A. Vanaskey Jr.
Title: Senior Financial Services Officer
FLEET NATIONAL BANK, as Facilitating Agent
By: /s/ Keith J. Collar
-----------------------------
Keith J. Collar
Vice President
Acknowledged and Accepted:
FLEET NATIONAL BANK, as Administrative
Agent
By: /s/ Keith J. Collar
-----------------------------
Name: Keith J. Collar
Title: Vice President
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ANNEX A
DEFINITIONS
Except as otherwise specified in the Transaction Document of which this
Annex A is a part, all references in such agreement (i) to any Person shall be
deemed to include such Person's successors and assigns and (ii) to any law,
agreement, statute or contract specifically defined or referred to in such
agreements shall be deemed to be references to such law, agreement, statute or
contract as the same may be supplemented, amended, waived, consolidated,
replaced or modified from time to time, but only to the extent permitted by, and
effected in accordance with, the terms thereof. The words "herein", "hereof" and
"hereunder" and words of similar import, when used in any Transaction Document
shall refer to such agreement as a whole and not to any provision of such
agreement, and "Article", "Section", "paragraph", "Exhibit", "Schedule" and
similar references are to such agreement unless otherwise specified. Whenever
the context so requires, words importing any gender include the other gender.
Any of the terms defined in this Annex A may, unless the context otherwise
requires, be used in the singular or the plural depending on the reference; the
singular includes the plural and the plural includes the singular.
All terms defined in this Annex A shall have the defined meanings when
used in any Transaction Document or, except as otherwise expressly stated
therein, any certificate, opinion or other document delivered pursuant to such
agreements.
For purposes of any Transaction Document, all terms used in Article 9
of the UCC and not specifically defined in this Annex A or in such agreements
shall be defined herein and in such agreement as such terms are defined in the
UCC as in effect on the Closing Date.
References to "writing" include printing, typing, lithography and other
means of reproducing words in a tangible visible form. References to "written"
include "printed", "typed", "lithographed" and other adjectives relating to
words reproduced in a tangible visible form consistent with the preceding
sentence. The words "including", "includes" and "include" shall be deemed to be
followed by the words "without limitation".
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"ACCOUNTANTS" has the meaning specified in Section 5.01(d) of the MLB
Credit Agreement.
"ADMINISTRATION AGREEMENT" means, with respect to each Club Trust, the
Administration Agreement dated as of June 28, 1996, among the related
Administrator and the related Club Trust and which is substantially in the form
of Exhibit E to the Club Trust Credit Agreement.
"ADMINISTRATIVE AGENT" means Fleet National Bank in its capacity as
Administrative Agent under the MLB Credit Agreement and any successor thereto.
"ADMINISTRATOR" means, with respect to any Club Trust, the party
retained pursuant to such Club Trust's Administration Agreement to perform
certain obligations on behalf of such Club Trust with respect to or related to
the Transaction Documents, and any successor administrator under the
Administration Agreement.
"AFFILIATE" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"AGENT BANKS" has the meaning specified in the recitals to the MLB
Credit Agreement.
"AGREEMENT" shall refer to the Transaction Document in which such term
appears as the same may be amended and supplemented from time to time.
"ALL STAR GAME" shall mean the official baseball game or games played
by the stars of the National League and the stars of the American League.
"AMERICAN LEAGUE" means The American League of Professional Baseball
Clubs, a not-for-profit association having its chief executive office at 350
Park Avenue, New York, New York 10022.
"AMERICAN LEAGUE AGREEMENT" means the Constitution of The American
League of Professional Baseball Clubs as adopted by the American League on
January 1, 1966, as the
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same may be supplemented, modified, amended or restated from time to time in the
manner provided therein and all successor agreements that may in the future be
entered into.
"ASSIGNED DOCUMENTS" means, collectively, all the Club Trust Pledge and
Security Agreements, all the Club Trust Assigned Documents, the Club Trust
Credit Agreement and all the Ratification Agreements.
"ASSIGNMENT" means the documents of assignment executed by the
Participating Clubs on various dates, as confirmed on June 28, 1996, attached to
the Transfer Agreements as Exhibit A.
"AUTHORIZED OFFICER" means any officer of the MLB Trustee who is
authorized to act for the MLB Trustee in matters relating to the MLB Trust and
who is identified on the list of Authorized Officers delivered by the MLB
Trustee to the Administrative Agent pursuant to Section 3.01 of the MLB Credit
Agreement (as such list may be modified or supplemented from time to time
thereafter) and, so long as any Administration Agreement is in effect, any Vice
President or more senior officer of the Administrator who is authorized to act
for the Administrator in matters relating to the related Club Trust and to be
acted upon by the Administrator pursuant to the Administration Agreement and who
is identified on the list of Authorized Officers delivered by the Administrator
to the MLB Trust pursuant to Section 3.01 of the Club Trust Credit Agreement (as
such list may be modified or supplemented from time to time thereafter).
"B OF A" means Bank of America.
"BANKRUPTCY EVENT" shall mean, with respect to any Person, the
occurrence of any of the following with respect to such Person: (i) a court or
governmental agency having jurisdiction in the premises shall enter a decree or
order for relief in respect of such Person in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial part of
its property or ordering the winding up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or (ii) such Person shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect or consent to the entry or an order for relief in an involuntary case
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under any such law or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) or such Person or for any substantial part of its property or make any
general assignment for the benefit of creditors, or (iii) such Person shall
admit in writing its inability to pay its debts generally as they become due
(otherwise than on a purely temporary basis), or any action shall be taken by
such Person in furtherance of any of the aforesaid purposes.
"BANKS" means, collectively, the Banks listed on the signature pages to
the MLB Credit Agreement, any assignee of any Bank pursuant to Section 8.06 of
the MLB Credit Agreement; PROVIDED, HOWEVER, that for purposes of Section 2.10
and Section 2.13 of the MLB Credit Agreement Banks shall not include the
assignee of any Bank pursuant to Section 8.06 of the MLB Credit Agreement.
"BANK TRANSFEREE" has the meaning specified in Section 2.10(a) of the
MLB Credit Agreement.
"BASE RATE" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate per annum shall at all
times be equal to the higher of:
(a) the rate of interest announced publicly by Fleet in
Boston, Massachusetts, from time to time, as Fleet's commercial base
rate; or
(b) 1/2 of 1% per annum above the latest three-week moving
average of secondary market morning offering rates in the United States
for three-month certificates of deposit of major United States money
market banks, such three-week moving average being determined weekly on
each Monday (or, if any such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the
previous Friday by Fleet on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by Fleet
from three New York certificate of deposit dealers of recognized
standing selected by Fleet, in either case adjusted to the nearest 1/4
of 1% or, if there is no nearest 1/4 of 1%, to the next higher 1/4 of
1%. "BORROWER" means MLB Trust as Borrower under the MLB Credit
Agreement.
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"BORROWING" means the aggregate of the Club Trust Related Advances made
on any given day by the Banks to the Borrower with respect to a specific Club
Trust.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or any
other day on which commercial banking institutions in Boston, Massachusetts, New
York, New York, or Wilmington, Delaware, are authorized or obligated by law or
executive order to be closed and on which dealings are carried on in the London
interbank market and banks are open for business in London.
"BUSINESS INTERRUPTION EVENT" has the meaning specified in Section
2.06(d) of the MLB Credit Agreement.
"BUSINESS TRUST STATUTE" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code ss. 3801 ET SEQ., as the same may be amended from time to
time.
"CENTRAL FUND AGREEMENT" means the Major League Agreement in re Major
Leagues Central Fund among the Major League Clubs dated as of December 8, 1983,
as the same may be supplemented, modified, amended or restated from time to time
in the manner provided therein and all successor or replacement agreements that
may in the future be entered into.
"CENTRAL FUND CUSTODY ACCOUNT" means the account known as the "Major
Leagues Central Fund" or the "Major League Central Fund Custody Account"
established by the Major League Clubs pursuant to the Central Fund Agreement and
any successor fund which serves as a receipt and disbursement account for
revenues that are shared by the various Major League Clubs and located at the
Administrative Agent.
"CHEMICAL" means Chemical Bank.
"CHIEF OPERATING OFFICER OF MLB PROPERTIES" means Don E. N. Gibson, and
any successor to his responsibilities.
"CLASS A INTERESTS" means the 90 Ownership Interests in a Club Trust
representing certain rights to distributions as set forth in Section 5.02 of any
Club Trust Agreement.
"CLASS A OWNER CERTIFICATES" means the Owner Certificates representing
ownership of the Class A Interests.
"CLASS B INTERESTS" means the 10 Ownership Interests in a Club Trust
representing certain rights to distributions as set forth in Section 5.02 of any
Club Trust Agreement.
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"CLASS B OWNER CERTIFICATES" means the Owner Certificates representing
ownership of the Class B Interests.
"CLOSING" means the simultaneous closings under each of the Transaction
Documents to take place at the offices of Choate, Hall & Stewart, Exchange
Place, 53 State Street, Boston, Massachusetts 02109 on the Closing Date.
"CLOSING DATE" means June 28, 1996.
"CLUB" or "MAJOR LEAGUE CLUB" means any Major League Baseball Club that
is a member of the National League or the American League and that is a
signatory to the Major League Agreement.
"CLUB TRUST" or "CLUB TRUSTS" means, as to any Participating Club, the
Delaware business trust established pursuant to the Business Trust Statute (a)
in which its related Participating Club holds the Class A Interests and (b)
which, collectively with all the other Participating Clubs' Club Trusts, will
constitute the Club Trusts. The names of the Club Trusts deemed to be party to
the Club Trust Credit Agreement and their respective Participating Clubs, and
Maximum Available Amounts, as of the Closing Date are set forth on Schedule I to
the Club Trust Credit Agreement and Schedule II to the MLB Credit Agreement.
"CLUB TRUST ADMINISTRATION FEE LETTER" means, with respect to any Club
Trust, the letter agreement dated as of June 28, 1996, between such Club Trust
and the MLB Trust.
"CLUB TRUST AGREEMENTS" means the trust agreements pursuant to which
each of the Club Trusts was established, as amended and restated, each
substantially in the form attached as Exhibit E to the MLB Credit Agreement.
"CLUB TRUST ASSIGNED DOCUMENTS" means, with respect to each Club Trust,
its Administration Agreement, its Transfer Agreement, its Club Trust Agreement
and any financial hedge entered into by or on behalf of such Club Trust.
"CLUB TRUST COLLATERAL" has the meaning specified in Section 2(a) of
each of the Club Trust Pledge and Security Agreements.
"CLUB TRUST CREDIT AGREEMENT" means the credit agreement in
substantially the form attached as Exhibit D to the MLB Credit Agreement
pursuant to which the MLB Trust will make loans to the Club Trusts from the
proceeds of the Club Trust Related Advances.
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"CLUB TRUST ESTATE" means all the right, title and interest of the Club
Trust in and to the property and rights transferred to the Club Trust pursuant
to the Transfer Agreement, all funds on deposit from time to time in its
Distribution Account and all other property of the Club Trust from time to time,
including any rights of the Club Trustee and the Club Trust pursuant to the
Transfer Agreement.
"CLUB TRUST EVENT OF DEFAULT" has the meaning specified in Section 6.01
of the Club Trust Credit Agreement.
"CLUB TRUST NOTE" means a promissory note of the Club Trust payable to
the order of the MLB Trust, in substantially the form of Exhibit A to the Club
Trust Credit Agreement, evidencing the aggregate indebtedness of the Club Trust
to the MLB Trust.
"CLUB TRUST PLEDGE AND SECURITY AGREEMENT" has, with respect to each
Club Trust, the meaning specified in Section 3.01(a) of the Club Trust Credit
Agreement, and which is substantially in the form of Exhibit C to the Club Trust
Credit Agreement.
"CLUB TRUST PREPAYMENT EVENT" means any Prepayment Event (as defined in
the Club Trust Credit Agreement) with respect to any Club Trust under its Club
Trust Sub-Facility.
"CLUB TRUST RELATED ADVANCE" means an advance by a Bank to the Borrower
pursuant to Article II of the MLB Credit Agreement in anticipation of a related
loan by the Borrower to a specific Club Trust.
"CLUB TRUST SECURED OBLIGATIONS" means, with respect to any Club Trust,
(a) all indebtedness, obligations and liabilities of such Club Trust under or in
connection with (i) the Club Trust Credit Agreement, (ii) its Club Trust Note or
other evidence of indebtedness of such Club Trust now or hereafter issued in
connection with the Club Trust Credit Agreement, (iii) its Club Trust Pledge and
Security Agreement, any other Transaction Document to which it is a party or the
loans and extensions or credit thereunder to it or its Club Trust Administration
Fee Letter or (iv) any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate futures contract,
interest rate option contract or other similar agreement or arrangement entered
into by or on behalf of such Club Trust with an Agent Bank designed to protect
such Club Trust against fluctuations in interest rates applicable to loans and
advances made available to it under its Club Trust Sub-Facility, in each case
whether now existing or hereafter arising, due or to become due,
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direct or indirect, absolute or contingent, and howsoever evidenced, held or
acquired and (b) all expenses and charges, legal and otherwise, reasonably
incurred by the MLB Trust, the Facilitating Agent, the Administrative Agent, the
Agent Banks and/or any Bank collecting or enforcing any of such indebtedness,
obligations and liabilities of such Club Trust or in realizing on or protecting
any security therefor, together with any and all modifications, extensions,
renewals and/or substitutions thereof.
"CLUB TRUST SUB-FACILITY" means, with respect to each Club Trust, the
sub-facility under the Club Trust Credit Agreement established for the purpose
of permitting such Club Trust to request Loans from the MLB Trust in an
aggregate amount not to exceed at any time such Club Trust's Maximum Available
Amount.
"CLUB TRUSTEE" means, with respect to each Club Trust, Wilmington Trust
Company, a Delaware banking corporation, not in its individual capacity but
solely as trustee under the Club Trust Agreements, and any successor trustee
thereunder.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLATERAL" has the meaning specified in Section 2 of the MLB Pledge
and Security Agreement.
"COLLECTION ACCOUNT" has the meaning specified in Section 7 of the MLB
Pledge and Security Agreement.
"COLLECTIVE BARGAINING AGREEMENT" means a fully executed, valid and
binding collective bargaining agreement between each of the American League and
National League, on its own behalf and as agent on behalf of each of its member
Clubs, and the Major League Baseball Players Association.
"COLLECTIVE BARGAINING AGREEMENT EFFECTIVE DATE" means the date upon
which a Collective Bargaining Agreement becomes legally effective.
"COLLECTIVE BARGAINING AGREEMENT EXPIRATION DATE" means the date upon
which a Collective Bargaining Agreement legally expires and no other Collective
Bargaining Agreement is legally effective.
"COMMISSIONER" means the Office of the Commissioner of Major League
Baseball created and governed by Article I of the Major League Agreement.
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"COMMISSIONER DISTRIBUTION DATE" means each date (or if such date is
not a Business Day, the next succeeding Business Day) on which the Commissioner
(i) distributes to the nonParticipating Clubs amounts on deposit in the Central
Fund Custody Account attributable to the non-Participating Clubs and (ii)
transfers into the Collection Account amounts on deposit in the Central Fund
Custody Account attributable to the Club Trusts, on a schedule submitted in
advance each year by the Commissioner and reasonably approved by the
Administrative Agent.
"COMMISSIONER EXPENSES" means the expenses of the Commissioner and the
office of the Commissioner paid pursuant to Sections 5(b) and (c) of the Central
Fund Agreement by the Major League Clubs as in effect on the Closing Date;
PROVIDED, however, that with respect to each Participating Club, aggregate
annual payments of such Participating Club's Pro Rata share of Commissioner
Expenses made by the Commissioner on behalf of such Participating Club out of
the Central Fund Custody Account shall be limited to (i) $1,600,000 in 1996, and
(ii) an aggregate annual amount in each succeeding year equal to the sum of (x)
the prior year's maximum amount, plus (y) the product of the amount of any
increase in the Consumer Price Index (expressed as a percentage) multiplied
times the prior year's maximum amount, plus (z) the product of five percent (5%)
multiplied times the prior year's maximum amount; and provided, further, that
each Participating Club will remain tertiarily liable for its share of any
Commissioner Expenses in any year which exceed such permitted payments.
"COMMISSIONER LETTER" means the letter of the Commissioner
substantially in the form attached as Exhibit H to the MLB Credit Agreement.
"COMMITMENT" has the meaning specified in Section 2.01 of the MLB
Credit Agreement.
"CONSUMER PRICE INDEX" means the consumer price index as measured in
the City of New York.
"COPYRIGHT ROYALTY TRIBUNAL" means a Copyright Arbitration Royalty
Panel created pursuant to 17 U.S.C. ss. 801, ET. SEQ.
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"DEBT" means (a) indebtedness for borrowed money, (b) obligations
evidenced by bonds, debentures, notes or other similar instruments, (c)
obligations to pay the deferred purchase price of property or services, (d)
obligations as lessee under leases which shall have been or should be, in
accordance with generally accepted accounting principles, recorded as capital
leases and (e) obligations under direct or indirect guarantees in respect of,
and obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clauses (a) through (d) above.
"DEBT SERVICE ACCOUNT" has the meaning specified in Section 7 of the
MLB Pledge and Security Agreement.
"DEFAULT RATE" has the meaning specified in Section 3(i) of the MLB
Pledge and Security Agreement or Section 3(i) of the Club Trust Pledge and
Security Agreements, as the context shall indicate is appropriate.
"DISTRIBUTION ACCOUNT" means, with respect to each Club Trust, the
account specified in Section 5.01 of the related Club Trust Agreement.
"DISTRIBUTION DATE" means a Commissioner Distribution Date, each date
on which amounts in the MLB Properties Royalty Account are distributed to the
non-Participating Clubs pursuant to the terms of the MLB Properties Agreement
and deposited to the Collection Account pursuant to the MLB Properties Payment
Directives, and each date on which Expansion Fees are distributed to the
non-Participating Clubs and deposited to the Collection Account pursuant to the
Commissioner Letter.
"DOCUMENTATION AGENT" means Morgan Guaranty Trust Company of New York
in its capacity as Documentation Agent under the MLB Credit Agreement and any
successor thereto.
"DOLLARS" or "$" means the lawful money of the United States of
America.
"ELIGIBLE INVESTMENTS" shall mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form which evidence:
(a) direct obligations of, and obligations fully guaranteed as
to timely payment by, the United States of America;
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(b) demand deposits, time deposits or certificates of deposit
of any depository institution or trust company incorporated under the
laws of the United States of America or any state thereof (or any
domestic branch of a foreign bank) and subject to supervision and
examination by Federal or state banking or depository institution
authorities; PROVIDED, HOWEVER, that at the time of any investment or
contractual commitment to invest therein, the commercial paper or other
short-term unsecured debt obligations (other than such obligations the
rating of which is based on the credit of a person or entity other than
such depository institution or trust company) thereof shall have a
credit rating from each of Standard & Poor's and Moody's in the highest
investment category granted thereby;
(c) commercial paper having, at the time of any investment or
contractual commitment to invest therein, a rating of A-1 and P-1 from
each of Standard & Poor's and Moody's, respectively;
(d) investments in money market funds having a rating of A-1
and P-1 from each of Standard & Poor's and Moody's, respectively;
(e) demand deposits, time deposits and certificates of deposit
with a rating of A-1 and P-1 from each of Standard & Poor's and
Moody's, respectively, and which are fully insured by the FDIC;
(f) bankers' acceptances issued by any depository institution
or trust company referred to in clause (b) above; and
(g) repurchase obligations with respect to any security that
is a direct obligation of, or fully guaranteed by, the United States of
America or any agency or instrumentality thereof the obligations of
which are backed by the full faith and credit of the United States of
America, in either case entered into with (i) a depository institution
or trust company (acting as principal) described in clause (b) or (ii)
a depository institution or trust company the deposits of which are
insured by FDIC.
"ENTITY" has the meaning specified in Section 3.02(c)(iv) of each
Transfer Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
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"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.02 of the
MLB Credit Agreement.
"EXECUTIVE COUNCIL" means the Executive Council of Major League
Baseball, which is created and governed by Article II of the Major League
Agreement or any other body serving similar functions in the future.
"EXPANSION FEES" means any payments received by the Clubs upon
expansion of Major League Baseball beyond twenty-eight Clubs or upon the
addition of a new Club following the expulsion of a Club.
"EXPENSES" has, with respect to any Club Trust Agreement or the MLB
Trust Agreement, the meaning specified in Section 8.02 thereof.
"FACILITATING AGENT" means Fleet National Bank in its capacity as
Facilitating Agent under the Club Trust Credit Agreement and any successor
thereto.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor entity thereto.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"FINAL PAYMENT DATE" means December 31, 2000, which corresponds to the
date on which the final principal payment with respect to the Club Trust Related
Advances shall be due to the Banks; PROVIDED, HOWEVER, that the Final Payment
Date may be changed with the consent of all of the Banks (or, if the Final
Payment Date is to be extended beyond December 31, 2001, with the consent of all
the Banks and all of the Club Trusts) as contemplated in Section 8.01 of the MLB
Credit Agreement.
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"FLEET" means Fleet National Bank.
"GOVERNMENTAL AUTHORITY" means any governmental department, commission,
board, bureau, agency, court or other instrumentality of any nation, state,
province, territory, commonwealth, municipality or other political subdivision
thereof.
"GRANT" means mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, create and grant a Lien upon and a
security interest in and right of setoff against, deposit, set over and confirm;
and "Granting" shall have a meaning corresponding to the foregoing. A Grant of
the Collateral, in the case of the MLB Pledge and Security Agreement, or a Grant
of the Club Trust Collateral, in the case of a Club Trust Pledge and Security
Agreement, or of any other agreement or instrument shall include all rights,
powers and options (but none of the obligations) of the Granting party
thereunder, including the immediate and continuing right to claim for, collect,
receive and give receipt for principal and interest payments in respect of the
Collateral or the Club Trust Collateral, as the case may be, and all other
moneys payable thereunder, to give and receive notices and other communications,
to make waivers or other agreements, to exercise all rights and options, to
bring Proceedings in the name of the Granting party or otherwise and generally
to do and receive anything that the Granting party is or may be entitled to do
or receive thereunder or with respect thereto.
"INFORMATION" has the meaning specified in Section 8.10 of the MLB
Credit Agreement.
"INTEREST PERIOD" has the meaning specified in Section 2.06(b) of the
MLB Credit Agreement.
"INTERNATIONAL BROADCAST CONTRACTS" means radio or television or other
media agreements now existing or entered into in the future respecting the
broadcast of any baseball games of Major League Baseball to audiences outside
the United States and Canada, whether such games are regular season games or
otherwise, and whether transmission of such broadcast is over-the-air, over
cable, by pay per view, by Internet or like means, by satellite transmission or
by any other means of transmission (except for those that are the subject of a
Superstation Agreement).
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"LABOR CONTINGENCY INTEREST RESERVE" means, with respect to each Club
Trust, an amount equal to nine months of interest on such Club Trust's Maximum
Available Amount (before giving effect to any reductions, including the Labor
Contingency Interest Reserve, under Section 2.04 of the Club Trust Credit
Agreement) computed at a rate equal to the sum of (i) such Club Trust's rate per
annum under Section 2.06(a)(ii) or (iii), as the case may be, of the MLB Credit
Agreement (assuming in all cases a LIBO Rate based on a 90 day Interest Period),
either as of the date of its initial Loan thereunder or as of any Collective
Bargaining Agreement Expiration Date, plus (ii) 2%; PROVIDED, that if such Club
Trust has entered into an interest cap agreement with an Agent Bank (or in the
case of the Rangers Club Trust, with a Bank) which extends through the Final
Payment Date, interest shall be computed solely at the maximum interest rate
provided for in such agreement.
"LEAGUE" means, with respect to any Club, The American League of
Professional Baseball Clubs or The National League of Professional Baseball
Clubs, as appropriate.
"LEAGUE AGREEMENT" means, with respect to any Club, the American League
Agreement or the National League Agreement, as appropriate.
"LENDING OFFICE" means, with respect to any Bank, the office of such
Bank specified as its "Lending Office" opposite its name on Schedule I to the
MLB Credit Agreement or such other office of such Bank as such Bank may from
time to time specify to the Borrower and the Agent Bank.
"LIBO RATE" means, for any Interest Period, for any Club Trust Related
Advance, the interest rate per annum equal to the rate per annum at which
deposits in dollars are offered to the Reference Bank in the London interbank
market at 11:00 a.m. (London time) two Business Days before the first day of
such Interest Period in an amount substantially equal to the amount of the
Borrowing with respect to which such Club Trust Related Advance relates and for
a period equal to such Interest Period.
"LIBO RATE OPTION" means the option granted to the Borrower under
Section 2.02(a) of the MLB Credit Agreement to have the interest on all or a
portion of any Borrowing based on the LIBO Rate or the option granted to each
Club Trust under Section 2.02(a) of the Club Trust Credit Agreement to have the
interest on all or a portion of any Loan based on the LIBO Rate, as applicable.
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"LIBO RATE PORTION" means any portion of any Borrowing, or of the
corresponding Club Trust Related Advances, or of any Loan, which is subject to a
LIBO Rate Option.
"LIBO RATE RESERVE PERCENTAGE" of any Bank for any Interest Period for
any Club Trust Related Advance means the reserve percentage applicable during
such Interest Period (or, if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such
Interest Period during which any such percentage shall be so applicable) under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal reserve
requirement) for such Bank with respect to liabilities or assets consisting of
or including Eurocurrency Liabilities having a term equal to such Interest
Period.
"LIEN" means any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, participation interest, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever, including any
conditional sale or other title retention agreement and any financing lease
having substantially the same economic effect as any of the foregoing.
"LOAN" means any loan made to a Club Trust under such Club Trust's
Sub-Facility pursuant to the Club Trust Credit Agreement.
"MAJOR LEAGUE AGREEMENT" means the Major League Agreement dated January
1, 1975 (which amended and restated the Major League Agreement dated January 12,
1921), between the National League, the American League and each of their
respective member Clubs, as the same may be supplemented, modified, amended or
restated from time to time in the manner provided therein and all replacement or
successor agreements that may in the future be entered into.
"MAJOR LEAGUE AGREEMENTS" means, collectively, the Major League
Agreement, the National League Agreement, the American League Agreement and the
Central Fund Agreement.
"MAJOR LEAGUE BASEBALL" means collectively, the National League and the
American League and each of their respective members.
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"MAJOR LEAGUE BASEBALL PENSION PLAN" means the Agreement re Major
League Baseball Players' Benefit Plan dated as of March 18, 1990 as the same may
be supplemented, modified, amended or restated from time to time in the manner
provided therein.
"MANAGING AGENT" means Bank of America in its capacity as Managing
Agent under the MLB Credit Agreement and any successor thereto.
"MAXIMUM AVAILABLE AMOUNT" means, with respect to each Club Trust's
Club Trust Sub-Facility, the amount initially set forth on Schedule I to the
Club Trust Credit Agreement as such amount may be reduced pursuant to the terms
of the Club Trust Credit Agreement; PROVIDED, HOWEVER, that no Club Trust's
Maximum Available Amount (before giving effect to any voluntary or involuntary
reductions therein, including the Labor Contingency Interest Reserve, as
contemplated in Section 2.04 of the Club Trust Credit Agreement) shall exceed
$25,000,000 in the case of Option A or $40,000,000 in the case of Option B.
"MLB CREDIT AGREEMENT" means the Reducing Revolving Credit Agreement
dated as of June 28, 1996, among the Borrower, Fleet, as Administrative Agent
and an Agent Bank, B of A, as Managing Agent and an Agent Bank, Chemical, as
Syndication Agent and an Agent Bank and Morgan, as Documentation Agent and an
Agent Bank, and the Banks.
"MLB PLEDGE AND SECURITY AGREEMENT" has the meaning specified in
Section 3.01(a) of the MLB Credit Agreement.
"MLB PROPERTIES" means Major League Baseball Properties, Inc., a New
York corporation.
"MLB PROPERTIES AGREEMENT" means the agency agreement dated as of
January 1, 1991, by and between MLB Properties and the member Clubs of Major
League Baseball, as the same may be supplemented, modified, amended or restated
from time to time in the manner provided therein and all replacement or
successor contracts that may in the future be entered into.
"MLB PROPERTIES LETTER" means the letter of the Chief Operating Officer
of MLB Properties substantially in the form attached as Exhibit I to the MLB
Credit Agreement.
"MLB PROPERTIES PAYMENT DIRECTIVE" means the irrevocable instructions
of each Participating Club and the Chief Operating Officer of MLB Properties
pursuant to which
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such Chief Operating Officer will cause all amounts in the MLB Properties
Royalty Account (after giving effect to all reductions therefrom with respect to
expenses, commissions or fees that otherwise would have been permitted to be
taken therefrom pursuant to the MLB Properties Agreement) to be deposited to the
Collection Account on the dates on which amounts are distributed to the
non-Participating Clubs pursuant to the terms of the MLB Properties Agreement,
which directive is substantially in the form attached as Exhibit J to the MLB
Credit Agreement.
"MLB PROPERTIES ROYALTY ACCOUNT" means the account established by MLB
Properties under the MLB Properties Agreement or any successor account which
serves as a receipt account for MLB Properties in connection with the MLB
Properties licensing agreements, the proceeds of which are shared by the various
Major League Clubs, including all accounts (other than the Central Fund Custody
Account) into which payment with respect to the Rights and Revenues flow for the
benefit of the Major League Clubs.
"MLB TAXES" means Taxes and Other Taxes as defined in Sections 2.13(a)
and 2.13(b), respectively, of the MLB Credit Agreement and any other amounts
required to be paid by the Borrower pursuant to Section 2.13(f) of the MLB
Credit Agreement.
"MLB TRUST" means the Major League Baseball Trust, a Delaware business
trust formed pursuant to the MLB Trust Agreement dated May 22, 1992, as amended
and restated on December 20, 1993 and amended and restated again pursuant to the
Second Amended and Restated MLB Trust Agreement dated June 28, 1996, among the
Participating Clubs and Wilmington Trust Company, as MLB Trustee.
"MLB TRUST ACCOUNT" has the meaning specified in Section 5.01 of the
MLB Trust Agreement.
"MLB TRUST ADMINISTRATION FEE LETTER" means the letter agreement dated
as of June 28, 1996, between the MLB Trust and the Administrative Agent solely
for the benefit of the Administrative Agent.
"MLB TRUST AGREEMENT" means the second amended and restated agreement
dated June 28, 1996 between the Participating Clubs and the MLB Trustee pursuant
to which the MLB Trust was established pursuant to the Business Trust Statute
substantially in the form attached as Exhibit F to the MLB Credit Agreement.
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"MLB TRUST ESTATE" means all the right, title and interest of the MLB
Trust in and to the property and rights transferred to the MLB Trust pursuant to
the MLB Trust Agreement, all funds on deposit from time to time in its MLB Trust
Account and all other property of the MLB Trust from time to time, including any
rights of the MLB Trust pursuant to the Transaction Documents.
"MLB TRUSTEE" means Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as trustee under the MLB
Trust Agreement, and any successor trustee thereunder.
"MLBP AGREEMENTS" means the MLB Properties Agreement, the Major League
Agreement in Re: Major League Promotions Corporation dated as of January 1,
1984, by and between MLB Properties and the member Clubs of the American League
and the National League and the constitutive documents of MLB Properties as the
same may be supplemented, modified, amended or restated from time to time in the
manner provided therein and all replacement or successor contracts that may in
the future be entered into.
"MONTHLY TRANSACTION DATE" means the second Business Day immediately
following the Closing Date and, thereafter, the 15th day (or, if such date is
not a Business Day, the next succeeding Business Day) of each calendar month
occurring after the Closing Date and prior to the Termination Date.
"MOODY'S" means Moody's Investors Service Inc., or its successor.
"MORGAN" means Morgan Guaranty Trust Company of New York.
"NATIONAL LEAGUE" means The National League of Professional Baseball
Clubs, a not-for-profit association having its chief executive office at 350
Park Avenue, New York, New York 10022.
"NATIONAL LEAGUE AGREEMENT" means The Constitution and Rules of the
National League of Professional Baseball Clubs, as the same may be supplemented,
modified, amended or restated from time to time in the manner provided therein
and all successor agreements that may in the future be entered into.
"NATIONAL MEDIA CONTRACTS" means radio or television or other media
agreements now existing or entered into in the future respecting the broadcast
of any baseball games of Major League Baseball to audiences outside of the home
territories of the home and visiting Clubs
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playing such games, whether such games are regular season games or otherwise,
and whether transmission of such broadcast is over-the-air, over cable, by pay
per view, by Internet or like means, by satellite transmission or by any other
means of transmission (except for those contracts that are the subject of a
Superstation Agreement), including the Agreement dated as of May 31, 1996
between the Commissioner, as agent for each of the Clubs, and Fox Broadcasting
Company, the Agreement dated as of June 20, 1996 between the Commissioner, as
agent for each of the Clubs, and National Broadcasting Company, Inc., the
Agreement dated as of March 30, 1996 between the Commissioner as agent for each
of the Clubs, and ESPN, Inc., the Post-Season Cable Agreement dated as of June
20, 1996 between the Commissioner, as agent for each of the Clubs, and ESPN,
Inc., the Agreement dated as of June 20, 1996 among the Commissioner, as agent
for each of the Clubs, MLBP and National Broadcasting Company, Inc., and the
Agreement of Assignment, Assumption, Release and Indemnity dated as of June 20,
1996 among National Broadcasting Company, Inc., ESPN, Inc. and the Commissioner,
as agent for each of the Clubs, as each may be supplemented, modified, amended
or restated from time to time in the manner provided therein and all successor
contracts that may in the future be entered into.
"NOTE" means the promissory note of the Borrower payable to the order
of the Administrative Agent, on behalf of the Banks, in substantially the form
of Exhibit A to the MLB Credit Agreement, evidencing the aggregate indebtedness
of the Borrower to the Banks resulting from the Club Trust Related Advances made
by the Banks with respect to the Club Trusts.
"NOTICE OF BORROWING" has the meaning specified in Section 2.02 of the
MLB Credit Agreement or Section 2.02 of the Club Trust Credit Agreement, as the
context shall indicate is appropriate.
"OBLIGOR PAYMENT DIRECTIVES" means the irrevocable instructions to each
Obligor under the National Media Contracts to deposit payments thereunder into
the Central Fund Custody Account substantially in the form attached as Exhibit J
to the MLB Credit Agreement.
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"OBLIGORS" means any one or more of the contract obligors under the
National Media Contracts or International Broadcast Contracts, including Fox
Broadcasting, Company, National Broadcasting Company, Inc. and ESPN, Inc.
"OPINION OF COUNSEL" means a written opinion of counsel reasonably
acceptable, as to form, substance and counsel, to the addressee thereof.
"OPTION A" means the option, exercisable in writing by a Club Trust's
Administrator as a condition precedent to the initial Loan to such Club Trust,
to have the Maximum Available Amount of such Club Trust's Sub-Facility set
initially at $25,000,000 before giving effect to any voluntary or involuntary
reductions thereof, including the Labor Contingency Interest Reserve, as
contemplated in Section 2.04 of the Club Trust Credit Agreement.
"OPTION B" means the option, exercisable in writing by a Club Trust's
Administrator as a condition precedent to the initial Loan to such Club Trust,
to have the Maximum Available Amount of such Club Trust's Sub-Facility set
initially at $40,000,000 before giving effect to any voluntary or involuntary
reductions thereof, including the Labor Contingency Interest Reserve, as
contemplated in Section 2.04 of the Club Trust Credit Agreement.
"OTHER TAXES" has the meaning specified in Section 2.13(b) of the MLB
Credit Agreement or Section 2.13(b) of the Club Trust Credit Agreement, as
applicable.
"OWNERS" has, with respect to any of the Club Trust Agreements or the
MLB Trust Agreement, the meaning specified in Section 3.01 thereof.
"OWNERSHIP INTERESTS" shall have the meaning assigned to such term in
Section 3.02 of the Club Trust Agreements.
"PARTICIPATING CLUB" means any Club that (a) is the Owner of the Class
A Owner Certificate of a Club Trust, (b) is an Owner of the MLB Trust and (c) is
a party to, or has assumed all the obligations under, the Transfer Agreement
with the Club Trust referred to in clause (a). The names of the Clubs that are
Participating Clubs as of the Closing Date are set forth on Schedule I to the
Club Trust Credit Agreement and Schedule II to the MLB Credit Agreement.
"PENSION CONTRIBUTIONS" means such amounts as the Major League Clubs
are or may become obligated to contribute to the Major League Baseball Players
Pension Plan by
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agreement with the Major League Baseball Players Association or by joint action
of the Major League Clubs.
"PERMITTED LIENS" has the meaning specified in Section 3(c) of the MLB
Pledge and Security Agreement.
"PERMITTED LOCATIONS" has the meaning specified in Section 3(c) of the
MLB Pledge and Security Agreement.
"PERMITTED TRANSFER" has, with respect to any Club Trust Agreement, the
meaning specified in Section 3.05 thereof, and as to the MLB Trust Agreement,
the meaning specified in section 3.04 thereof.
"PERSON" means an individual, partnership, corporation, business trust,
joint stock company, limited liability company, trust, unincorporated
association, joint venture or other entity or a government or any political
subdivision or agency thereof.
"PLAN" means with respect to any Club Trust, (a) any employee pension
and other plans subject to ERISA or the Code maintained by its related
Participating Club or any of such Participating Club's affiliates or (b) any
employee pension and other plans subject to ERISA or the Code in which its
related Participating Club or any of such Participating Club's affiliates
participates, including the Major League Baseball Players Pension Plan as
currently in effect or as hereafter modified or amended.
"PLEDGED COLLATERAL" means, collectively, the Club Trust Notes and the
certificates of the MLB Trust representing a 10% ownership interest in each of
the Club Trusts party to the Club Trust Credit Agreement.
"PREPAYMENT EVENT" has the meaning specified in Section 2.09(a) of the
MLB Credit Agreement.
"PROCEEDINGS" means any suit in equity, action at law or other judicial
or administrative proceeding.
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"PRO RATA" means a share of any amount allocated to a Participating
Club based on a fraction the numerator of which is one and the denominator of
which is the number of Major League Clubs (excluding any Club not entitled to
share in Central Fund revenues in accordance with any agreement with the Major
League Clubs in connection with the expansion of Major League Baseball).
"RATIFICATION AGREEMENT" means, with respect to each Club Trust, the
Ratification Agreement substantially in the form of Exhibit D to the Club Trust
Credit Agreement.
"REFERENCE BANK" means Fleet.
"REGISTER" has the meaning set forth in Section 8.07 of the MLB Credit
Agreement and Section 8.06 of the Club Trust Credit Agreement, as the context
shall indicate is appropriate.
"REQUIRED BANKS" means at any time Banks holding interests in at least
66-2/3% of the then aggregate unpaid principal amount of the Note held by the
Administrative Agent for the benefit of the Banks or, if no such principal
amount is then outstanding, Banks having at least 66-2/3% of the Commitments.
"REVENUES" shall mean all payments of any kind made or to be made on
account of any of the Rights.
"RIGHTS" means (i) the rights of the Transferor to receive revenues
under the Central Fund Agreement, (ii) the rights of the Transferor to receive
revenues under the MLB Properties Agreement and from MLB Properties (including
rights to royalties and dividends), (iii) the rights of the Transferor to
receive any revenues under the Major League Agreement and the League Agreements
which are shared among all the Clubs or all of the Clubs in either League, (iv)
the rights of the Transferor to receive funds deposited in the Central Fund
Custody Account (subject solely to the rights of the Commissioner to make
payments of the Transferor's Pro Rata share of Pension Contributions and
Commissioner Expenses (subject to the annual limitations contained in the
definition thereof) on behalf of the Transferor therefrom), (v) the rights of
the Transferor to receive funds deposited in the MLB Properties Royalty Account,
(vi) the rights of the Transferor to receive payments from the Copyright Royalty
Tribunal, (vii) the rights of the Transferor to receive Expansion Fees, (viii)
the rights of the Transferor to receive payments on account of any Superstation
Agreement, (ix)
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the rights of the Transferor to receive revenues under the National Media
Contracts, subject at all times to the Commissioner's exclusive right to enforce
the obligations of any Obligor under any National Media Contract, and (x) the
rights of the Transferor to receive revenues under the International Broadcast
Contracts, subject at all times to the Commissioner's exclusive right to enforce
the obligations of any Obligor under any International Broadcast Contract.
"SECRETARY OF STATE" means the Secretary of State of the State of
Delaware.
"SECURED OBLIGATIONS" means (a) all indebtedness, obligations and
liabilities of the MLB Trust under or in connection with (i) the MLB Credit
Agreement, (ii) the Note or other evidence of indebtedness of the MLB Trust now
or hereafter issued in connection with the MLB Credit Agreement, (iii) the MLB
Pledge and Security Agreement, any other Transaction Document, the MLB Trust
Administration Fee Letter or the loans and extensions or credit thereunder or
(iv) any interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement, interest rate futures contract, interest rate option
contract or other similar agreement or arrangement entered into by or on behalf
of a Club Trust with an Agent Bank designed to protect a Club Trust against
fluctuations in interest rates applicable with regard to loans and advances made
available to it under the Club Trust Credit Agreement, in each case whether now
existing or hereafter arising, due or to become due, direct or indirect,
absolute or contingent, and howsoever evidenced, held or acquired and (b) all
expenses and charges, legal and otherwise, reasonably incurred by the
Administrative Agent, the Agent Banks and/or any Bank collecting or enforcing
any of such indebtedness, obligations and liabilities or in realizing on or
protecting any security therefor, including the security afforded under the MLB
Credit Agreement and the MLB Pledge and Security Agreement, together with any
and all modifications, extensions, renewals and/or substitutions thereof.
"SOLVENT" means, with respect to any Person, that such Person is not
"insolvent" as that term is defined in 11 U.S.C. ss. 101(32) or under the
fraudulent conveyance laws of the state of incorporation, formation or legal
residence of such Person.
"STANDARD & POOR'S" means Standard & Poor's Corporation, or its
successor.
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"SUB-ACCOUNTS" has the meaning specified in Section 5.01 of the MLB
Trust Agreement.
"SUB-ACCOUNT BALANCE" has the meaning specified in Section 5.01 of the
MLB Trust Agreement.
"SUPERSTATION AGREEMENTS" means all agreements now existence or entered
into in the future between the Commissioner and individual Clubs regarding the
sharing with the other Major League Clubs of revenues received by the individual
Clubs with respect to agreements to broadcast baseball games outside of the
local areas of such Clubs or the local areas of the visiting teams entered into
by such Clubs with individual broadcasters, as each may be supplemented,
modified, amended or restated from time to time in the manner provided therein
and all successor contracts that may in the future be entered into.
"SYNDICATION AGENT" means Chemical Bank in its capacity as Syndication
Agent under the MLB Credit Agreement and any successor thereto.
"TAXES" has the meaning specified in Section 2.13 of each of the MLB
Trust Agreement and the Club Trust Credit Agreement, as applicable.
"TERMINATION DATE" means the earliest to occur of (a) December 31, 2000
or (b) the termination in whole of the Commitments pursuant to Section 2.04 or
6.02 of the MLB Credit Agreement.
"TOTAL COMMITMENT" has the meaning specified in Section 2.01 of the MLB
Credit Agreement or Section 2.01 of the Club Trust Credit Agreement, as
applicable.
"TRANSACTION COSTS" means all fees and actual out-of-pocket costs and
expenses incurred by the Borrower and the Club Trusts in connection with the
Borrowings and the Loans, including, without limitation, Borrower's obligation
to pay all reasonable legal fees and out-of-pocket expenses of counsel to the
Administrative Agent and the Agent Banks.
"TRANSACTION DOCUMENTS" means the MLB Credit Agreement, the MLB Pledge
and Security Agreement, the Club Trust Credit Agreement, the Club Trust Pledge
and Security Agreements, the MLB Trust Agreement, the Club Trust Agreements, the
Transfer Agreements, the Assignments, the Administration Agreements and any
other documents and certificates delivered in connection therewith.
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"TRANSFER AGREEMENTS" means the transfer agreements dated May 22, 1992,
as amended on December 20, 1993 (or the transfer agreement dated April 12, 1994
in the case of the New York Yankees or the transfer agreement dated July 15,
1994 in the case of the Montreal Expos), each as amended and confirmed pursuant
to amendment and confirmation agreements dated June 28, 1996, between each
Participating Club and its related Club Trust pursuant to which each such
Participating Club contributed to its related Club Trust its Rights and Revenues
substantially in the form attached as Exhibit G to the MLB Credit Agreement.
"TRANSFER AUTHORIZATIONS" means the irrevocable authorizations of each
Participating Club pursuant to which each Participating Club will authorize and
direct the Commissioner to cause all Revenues deposited in the Central Fund
Custody Account allocable to such Participating Club's Club Trust to be
immediately separated from amounts allocable to the non-Participating Clubs and,
after payment by the Commissioner of such Participating Club's Pro Rata share of
Pension Contributions and Commissioner Expenses (subject to the annual
limitations contained in the definition thereof) on behalf of such Participating
Club therefrom, to deposit the balance into the Collection Account on each
Commissioner Distribution Date substantially in the form attached as Exhibit L
to the MLB Credit Agreement.
"TRANSFEREE" means each Club Trust in its capacity as Transferee under
its Transfer Agreement.
"TRANSFEROR" means each Participating Club in its capacity as
Transferor under its Transfer Agreement.
"TREASURY REGULATIONS" shall mean regulations, proposed or temporary
regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"UCC" shall mean the Uniform Commercial Code as enacted in the State of
New York (and any successor statute thereto).
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