EXHIBIT 10.1
*************************************************************
JOURNAL REGISTER COMPANY
---------
CREDIT AGREEMENT
Dated as of August 12, 2004
---------
JPMORGAN CHASE BANK,
as Administrative Agent and Co-Documentation Agent
---------
J.P. MORGAN SECURITIES INC.,
as Sole Lead Arranger and Sole Bookrunner
THE BANK OF NEW YORK
KEYBANK NATIONAL ASSOCIATION
SUNTRUST BANK
WACHOVIA BANK, N. A.,
as Co-Syndication Agents
THE ROYAL BANK OF SCOTLAND PLC,
as Co-Documentation Agent
************************************************************
<PAGE>
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which
it is attached but is inserted for
convenience only.
PAGE
RECITALS.......................................................................1
Section 1. Definitions and Accounting
Matters.................................1
1.01 Certain Defined
Terms...........................................1
1.02 Accounting Terms
and Determinations; Fiscal Periods............25
1.03 Classes and Types
of Loans.....................................26
1.04 Terms
Generally................................................26
Section 2.
Commitments.......................................................27
2.01
Loans..........................................................27
2.02
Borrowings.....................................................29
2.03 Changes of
Commitments.........................................29
2.04 Commitment
Fees................................................30
2.05 Lending
Offices................................................31
2.06 Several
Obligations; Remedies Independent......................31
2.07 Evidence of
Debt...............................................32
2.08 Conversion or
Continuation of Loans; Optional Prepayments......32
2.09 Mandatory
Prepayments..........................................33
2.10 Letters of
Credit..............................................34
2.11 Swingline
Loans................................................39
Section 3. Payments of Principal and
Interest................................41
3.01 Repayment of
Loans.............................................41
3.02
Interest.......................................................43
Section 4. Payments; Pro Rata Treatment;
Computations; Etc. .................43
4.01
Payments.......................................................44
4.02 Pro Rata
Treatment.............................................45
4.03
Computations...................................................45
4.04 Minimum
Amounts................................................45
4.05 Certain
Notices................................................46
4.06 Non-Receipt of
Funds by the Administrative Agent...............46
4.07 Sharing of
Payments, Etc. .....................................47
Section 5. Yield Protection and
Illegality...................................49
5.01 Additional
Costs...............................................49
5.02 Limitation on
Types of Loans...................................50
5.03
Illegality.....................................................50
(i)
<PAGE>
5.04 Treatment of
Affected Loans....................................51
5.05
Compensation...................................................51
5.06 Additional Costs
in Respect of Letters of Credit...............52
5.07
Taxes..........................................................53
5.08 Mitigation
Obligations; Replacement of Lenders.................54
Section 6. Conditions
Precedent..............................................55
6.01
Effectiveness..................................................55
6.02 Initial and
Subsequent Extensions of Credit....................58
Section 7. Representations and
Warranties....................................58
7.01 Corporate
Existence............................................58
7.02 Financial
Condition............................................59
7.03
Litigation.....................................................59
7.04 No
Breach......................................................60
7.05 Corporate
Action...............................................60
7.06
Approvals......................................................60
7.07 Margin
Stock...................................................60
7.08
ERISA..........................................................61
7.09
Taxes..........................................................61
7.10 Investment
Company Act.........................................61
7.11 Public Utility
Holding Company Act.............................61
7.12 Compliance with
Laws...........................................61
7.13
Disclosure.....................................................61
7.14 Security
Documents.............................................62
7.15 Assets of the
Borrower.........................................62
7.16 Material
Agreements............................................62
7.17
Solvency.......................................................62
7.18 Labor
Matters..................................................63
7.19 Environmental
Matters..........................................63
7.20 Subsidiaries,
Etc. ............................................65
7.21 Intellectual
Property..........................................66
Section 8. Covenants of the
Borrower.........................................66
8.01 Financial
Statements, Etc. ....................................66
8.02
Litigation.....................................................69
8.03 Corporate
Existence, Etc. .....................................69
8.04
Insurance......................................................70
8.05 Prohibition of
Fundamental Changes.............................70
8.06 Limitation on
Liens............................................74
8.07
Indebtedness...................................................76
8.08
Investments....................................................78
8.09 Restricted
Payments............................................78
8.10 Capital
Expenditures...........................................79
8.11 Financial
Ratios...............................................79
8.12 Lines of
Business..............................................81
(ii)
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8.13 Transactions with
Affiliates...................................81
8.14 Sale and
Leaseback.............................................81
8.15 Amendment of
Certain Documents.................................82
8.16 Use of
Proceeds................................................82
8.17 Sales of
Accounts..............................................82
8.18 Interest
Protection Arrangements...............................82
8.19 Environmental
Matters..........................................83
8.20 Certain
Obligations Respecting Subsidiaries....................83
8.21 Restrictive
Agreements.........................................85
8.22 Payments of
Indebtedness.......................................85
Section 9. Events of
Default.................................................86
Section 10. The Administrative
Agent.........................................89
10.01 Appointment,
Powers and Immunities............................89
10.02 Reliance by
Agent.............................................89
10.03
Defaults......................................................89
10.04 Rights as a
Lender............................................90
10.05
Indemnification...............................................90
10.06 Non-Reliance on
Agent and Other Lenders.......................90
10.07 Failure to
Act................................................91
10.08 Resignation of
Agent..........................................91
10.09 Other Agents,
Etc. ...........................................91
Section 11.
Miscellaneous....................................................92
11.01
Waiver........................................................92
11.02
Notices.......................................................92
11.03 Expenses, Etc.
...............................................93
11.04 Amendments, Etc.
.............................................94
11.05 Successors and
Assigns........................................95
11.06 Assignments and
Participations................................95
11.07
Survival......................................................98
11.08
Captions......................................................98
11.09
Counterparts..................................................98
11.10 Governing Law;
Submission to Jurisdiction.....................98
11.11 Waiver of Jury
Trial..........................................98
11.12
Confidentiality...............................................99
11.13 USA PATRIOT
Act...............................................99
(iii)
<PAGE>
Annex 1
-
Commitments
SCHEDULE 1.01
-
Immaterial Subsidiaries
SCHEDULE 2.10(m)
-
Existing Letters of Credit
SCHEDULE 7.01
-
Corporate Existence
SCHEDULE 7.03
-
Litigation
SCHEDULE 7.06
-
Consents and Approvals
SCHEDULE 7.19
-
Environmental Matters
SCHEDULE 7.20
-
Subsidiaries
SCHEDULE 8.06
-
Liens
SCHEDULE 8.07
-
Indebtedness
SCHEDULE 8.08
-
Investments
SCHEDULE 8.21
-
Restrictive Agreements
EXHIBIT A
-
Form of Security Agreement
EXHIBIT B
-
Form of Subsidiary Guarantee
EXHIBIT C
-
Form of Compliance Certificate
EXHIBIT D
-
Form of Assignment and Assumption
EXHIBIT E-1
-
Form of Tranche A Term Note
EXHIBIT E-2
-
Form of Tranche B Term Note
EXHIBIT E-3
-
Form of Revolving Credit Note
EXHIBIT E-4
-
Form of Incremental Term Note
EXHIBIT E-5
-
Form of Incremental Revolving Credit Note
<PAGE>
CREDIT AGREEMENT dated as of August 12, 2004 between JOURNAL
REGISTER COMPANY, the LENDERS party hereto,
and JPMORGAN CHASE BANK, as
Administrative Agent.
The Borrower (as hereinafter defined) has requested that the
Lenders (as so defined) extend credit to
the Borrower, under the guarantee of
the Subsidiary Guarantors (as so defined),
in an aggregate principal or face
amount not exceeding $1,050,000,000 at any
one time outstanding, and the Lenders
are prepared to extend such credit upon the
terms and conditions hereof.
Accordingly, the parties hereto agree as
follows:
Section 1. DEFINITIONS AND ACCOUNTING MATTERS.
1.01 CERTAIN DEFINED TERMS. As used herein, the following
terms shall have the following meanings
(all terms defined in this Section 1.01
or in other provisions of this Agreement in
the singular to have the same
meanings when used in the plural and VICE
VERSA):
"ACQUISITION" shall mean any transaction, or any series of
related transactions, consummated after the
date of this Agreement, by which the
Borrower and/or any of its Subsidiaries (a)
acquires any going business or all
or substantially all of the assets of any
corporation, partnership, joint
venture or other firm or any division of
any corporation, partnership, joint
venture or other firm or the right to use
or manage or otherwise exploit any
such business or assets, whether through
purchase or lease of assets, merger or
otherwise, (b) directly or indirectly
acquires control of at least a majority
(in number of votes) of the securities of a
corporation which have ordinary
voting power for the election of directors
or (c) directly or indirectly
acquires control of a majority ownership
interest in any partnership, joint
venture or other firm. The terms "ACQUIRE"
and "ACQUIRED" used as a verb shall
have a correlative meaning.
"ADMINISTRATIVE AGENT" shall mean JPMCB, in its capacity as
administrative agent for the Lenders
hereunder.
"ADMINISTRATIVE QUESTIONNAIRE" shall mean an Administrative
Questionnaire in a form supplied
by the Administrative Agent.
"AFFILIATE" shall mean, with respect to any specified Person,
any other Person which directly or
indirectly controls, or is under common
control with, or is controlled by, such
specified Person and, if such other
Person is an individual, any member of the
immediate family (i.e., parents,
spouse and children) of such individual and
any trust whose principal
beneficiary is such individual or one or
more members of such immediate family
and any Person who is controlled by any
such member or trust. As used in this
definition, "CONTROL" (including, with its
correlative meanings, "CONTROLLED BY"
and "UNDER COMMON CONTROL WITH") shall mean
possession, directly or indirectly,
of power to direct or cause the direction
of management or policies (whether
through ownership of securities or
partnership or other ownership interests, by
contract or otherwise), PROVIDED that, in
any event, any Person which owns
directly or indirectly 10% or more of the
securities having ordinary voting
power for the election of directors or
other governing body of a corporation or
10% or more of the partnership or other
ownership interests
CREDIT AGREEMENT
<PAGE>
2
of any other Person(other than as a limited
partner of such other Person) will
be deemed to control such corporation or
other Person. Notwithstanding the
foregoing, (a) no individual shall be an
Affiliate of the Borrower or any of its
Subsidiaries solely by reason of his or her
being a director, officer, employee
or consultant of the Borrower or any of its
Subsidiaries, (b) none of the
Borrower or any of its Subsidiaries shall
be Affiliates of each other and (c) no
institutional investor or other Person
filing on Form 13G shall be an Affiliate
of the Borrower or any of its Subsidiaries
solely by reason of owning, directly
or indirectly, up to 15% of the Capital
Stock of the Borrower having ordinary
voting power for the election of directors
of the Borrower.
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and
for each Type of Loan, the "Lending Office"
of such Lender (or of an Affiliate
of such Lender) designated for such Type of
Loan in the Administrative
Questionnaire submitted by such Lender or
such other office of such Lender (or
of an Affiliate of such Lender) as such
Lender may from time to time specify to
the Administrative Agent and the Borrower
as the office by which its Loans of
such Type are to be made and
maintained.
"APPLICABLE MARGIN" shall mean, for any day (a) with respect
to Tranche B Term Loans, (i) in the case
where the Total Leverage Ratio is
greater than or equal to 4.50 to 1, 0.25%
for Base Rate Loans and 1.50% for
Eurodollar Loans and (ii) otherwise, 0% for
Base Rate Loans and 1.25% for
Eurodollar Loans and (b) with respect to
Revolving Credit Loans and Tranche A
Term Loans, the applicable rate per annum
for Base Rate Loans or Eurodollar
Loans set forth below under the caption
"Base Rate Margin (for Revolving Credit
Loans and Tranche A Term Loans)" and
"Eurodollar Margin (for Revolving Credit
Loans and Tranche A Term Loans",
respectively, based upon the Total Leverage
Ratio as of the most recent determination
date:
============================
======================== ========================
BASE RATE MARGIN
EURODOLLAR MARGIN
TOTAL LEVERAGE
RATIO (FOR
REVOLVING CREDIT (FOR REVOLVING
CREDIT
LOANS AND TRANCHE A
LOANS AND TRANCHE A
TERM LOANS)
TERM LOANS)
----------------------------
------------------------ ------------------------
----------------------------
------------------------ ------------------------
CATEGORY 1:
Greater than or equal
0.25%
1.50%
to 5.50 to 1
----------------------------
------------------------ ------------------------
CATEGORY 2:
Greater than or equal
0%
1.25%
to 5.00 to 1 but
less than 5.50 to 1
----------------------------
------------------------- -----------------------
CATEGORY 3:
Greater than or equal
0%
1.00%
to 4.50 to 1 but
less than 5.00 to 1
----------------------------
-------------------------- ----------------------
CATEGORY 4:
Greater than or equal
0%
0.875%
to 4.00 to 1 but
less than 4.50 to 1
----------------------------
-------------------------- ----------------------
CATEGORY 5:
Greater than or equal
0%
0.75%
to 3.50 to 1 but
less than 4.00 to 1
----------------------------
-------------------------- ----------------------
CATEGORY 6:
0%
0.625%
Less than 3.50 to 1
============================
========================== ======================
CREDIT AGREEMENT
<PAGE>
3
For purposes of this definition, the Total
Leverage Ratio (i) for any day during
the period commencing on the Effective Date
and ending on the next Business Day
after the date the Borrower delivers to the
Administrative Agent the
consolidated financial statements of the
Borrower for the fiscal quarter ending
September 30, 2004 pursuant to Section
8.01(a) hereof shall be determined based
upon the certificate delivered pursuant to
Section 6.01(i) hereof and (ii) for
any day thereafter shall be determined on
the basis of the then most recent
consolidated financial statements of the
Borrower delivered to the
Administrative Agent pursuant to Section
8.01(a) or 8.01(b) hereof. Any change
in the Applicable Margins as a result of a
change in the Total Leverage Ratio
shall be effective as of the next Business
Day following the date the relevant
consolidated financial statements of the
Borrower are so delivered to the
Administrative Agent, PROVIDED that (A) in
the event that the Borrower shall
fail to deliver to the Administrative Agent
any consolidated financial
statements by the respective date required
pursuant to said Section 8.01(a) or
8.01(b), the Applicable Margins shall be
deemed to be in Category 1 above for
each day during the period commencing on
the date said financial statements were
so required to be delivered and ending on
the next Business Day following the
date such financial statements are in fact
delivered to the Administrative
Agent; (B) at the option of the Borrower,
the Applicable Margins shall be
subject to adjustment based on the
foregoing table prior to the delivery of any
consolidated financial statements pursuant
to Section 8.01(a) or 8.01(b) hereof
effective as of the next Business Day
following the date (the "ADJUSTMENT
EFFECTIVE DATE") on which the
Administrative Agent shall have received a
certificate of a Senior Officer (in form
and detail satisfactory to the
Administrative Agent) setting forth the
Total Leverage Ratio as at the last day
of the fiscal period in respect of which
such consolidated financial statements
are required to be delivered and annexing
thereto calculations of the Total
Leverage Ratio, except that in the event
that the Total Leverage Ratio
determined on the basis of such
consolidated financial statements when delivered
pursuant to Section 8.01(a) or 8.01(b)
shall be in a lower numbered Category in
the foregoing table than the Total Leverage
Ratio set forth in such certificate,
the Applicable Margin shall automatically
be adjusted retroactively to the
Adjustment Effective Date based upon the
foregoing table; and (C) the Applicable
Margins shall be subject to adjustment
based on the foregoing table on and as of
any Borrowing Date or the date of any
prepayment described in the following
clause (y) if (i) either (x) a borrowing of
Revolving Credit Loans occurs on
such Borrowing Date or (y) the Revolving
Credit Loans are prepaid at any time,
in each case in excess of $20,000,000 in
aggregate principal amount (unless, in
the case of clause (x) only, the proceeds
of such borrowing are to be, and are
in fact, used to make repayments of Term
Loans or Incremental Term Loans, in
which case no such adjustment to the
Applicable Margins shall be so required to
be made on such Borrowing Date or the date
of such prepayment) and (ii) such
borrowing or prepayment, as the case may
be, results in a change in the Total
Leverage Ratio as of such Borrowing Date or
the date of such prepayment that
would in turn result in a change in the
Applicable Margins as reflected in the
certificate of a Senior Officer (in form
and detail satisfactory to the
Administrative Agent) setting forth the
Total Leverage Ratio after giving effect
to such borrowing or prepayment, as the
case may be, and annexing thereto
calculations of the Total Leverage Ratio
and delivered to the Administrative
Agent, together with the relevant notice of
prepayment as required by Section
4.05 hereof.
"APPROVED FUND" shall mean any Person (other than a natural
person) that is engaged in making,
purchasing, holding or investing in bank
loans and similar extensions of credit in
the ordinary course of its business
and that is administered or managed by (a)
a Lender, (b) an Affiliate of a
Lender or (c) an entity or an Affiliate of
an entity that administers or
CREDIT AGREEMENT
<PAGE>
4
manages a Lender.
"APPROVED SUBORDINATED DEBT" shall mean Subordinated Debt
that satisfies the requirements of clause
(v) of Section 8.07(c) hereof.
"ASSIGNMENT AND ASSUMPTION" shall mean an assignment and
assumption entered into by a Lender and an
assignee (with the consent of any
party whose consent is required by Section
11.06), and accepted by the
Administrative Agent, in the form of
Exhibit D hereto or any other form approved
by the Administrative Agent.
"AVERAGE LIFE TO MATURITY" shall mean, as at any day with
respect to any Indebtedness, the quotient
obtained by dividing (a) the sum of
the products of (i) the number of years
from such day to the date or dates of
each successive scheduled principal payment
of such Indebtedness multiplied by
(ii) the amount of each such principal
payment by (b) the sum of all such
principal payments. The Average Life to
Maturity of commitment reductions shall
be determined in like manner as if the
relevant commitments were at all times
fully drawn.
"BANKRUPTCY CODE" shall mean the United States Federal
Bankruptcy Code of 1978, as amended from
time to time.
"BASE RATE" shall mean, with respect to any Base Rate Loan,
for any day, the higher of (a) the Federal
Funds Effective Rate for such day
PLUS 0.50% and (b) the Prime Rate for such
day. Each change in any interest rate
provided for herein based upon the Base
Rate resulting from a change in the Base
Rate shall take effect at the time of such
change in the Base Rate.
"BASE RATE LOANS" shall mean Loans which bear interest at
rates based upon the Base Rate.
"BOARD" shall mean the Board of Governors of the Federal
Reserve System of the United States of
America.
"BORROWER" shall mean Journal Register Company, a Delaware
corporation.
"BORROWING DATE" shall mean each date on which Loans are made
hereunder.
"BUSINESS DAY" shall mean any day on which commercial banks
are not authorized or required to close in
New York City and, if such day
relates to a borrowing of, a payment or
prepayment of principal of or interest
on, or a Conversion of or into, or a
Continuation of, or an Interest Period for,
a Eurodollar Loan or a notice by the
Borrower with respect to any such
borrowing, payment, prepayment, Conversion,
Continuation or Interest Period,
which is also a day on which dealings in
Dollar deposits are carried out in the
London interbank market.
"CAPITAL EXPENDITURES" shall mean, for any period,
expenditures made by the Borrower or any of
its Subsidiaries to acquire or
construct fixed assets, plant and equipment
(including renewals, improvements
and replacements, but excluding repairs)
during such period
CREDIT AGREEMENT
<PAGE>
5
computed in accordance with GAAP (including
the aggregate amount of Capital
Lease Obligations incurred during such
period); PROVIDED that "Capital
Expenditures" shall not include (a)
capitalized interest to the extent otherwise
included in "Capital Expenditures" as
required by GAAP, (b) such expenditures
made with the proceeds arising from or in
connection with any Disposition or
Casualty Event or (c) at the option of the
Borrower (which option shall be
exercised by written notice to the
Administrative Agent), any such expenditures
up to but not exceeding $10,000,000 in the
aggregate in any fiscal year and up
to but not exceeding $25,000,000 in the
aggregate.
"CAPITAL LEASE OBLIGATIONS" shall mean, for any Person, all
obligations of such Person to pay rent or
other amounts under a lease of (or
other agreement conveying the right to use)
Property to the extent such
obligations are required to be classified
and accounted for as a capital lease
on a balance sheet of such Person under
GAAP and, for purposes of this
Agreement, the amount of such obligations
shall be the capitalized amount
thereof, determined in accordance with
GAAP.
"CAPITAL STOCK" shall mean (a) in the case of a corporation,
capital stock, (b) in the case of an
association or business entity, any and all
shares, interests, participations, rights
or other equivalents (however
designated) of corporate stock, (c) in the
case of a limited liability company,
membership units (whether common or
preferred), (d) in the case of a
partnership, partnership interests (whether
general or limited) and (e) any
other equivalent ownership interest or
participation that confers on a Person
the right to receive a share of the profits
and losses of, or distributions of
assets of, the issuing Person.
"CASH EQUIVALENTS" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United
States
of America (or by any agency thereof to the extent such obligations
are
backed by the full faith and credit of the United States of
America),
in each case maturing within one year from the date of
acquisition
thereof;
(b) investments in commercial paper maturing within one year
from the date of acquisition thereof and having, at such date
of
acquisition, a rating of at least A-1 or better or P-1 or better
from
S&P or Moody's, respectively;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the
date of
acquisition thereof issued or guaranteed by or placed with, and
money
market deposit accounts issued or offered by, any domestic office
of
any commercial bank organized under the laws of the United States
of
America or any State thereof which has a combined capital and
surplus
and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of
not more than 180 days for securities described in clause (a) above
and
entered into with a financial institution satisfying the
criteria
described in clause (c) above;
(e) operating deposit accounts with financial institutions
(including financial
CREDIT AGREEMENT
<PAGE>
6
institutions not satisfying the criteria described in clause
(c)
above); and
(f) money market funds that (i) comply with the criteria set
forth in Securities and Exchange Commission Rule 2a-7 under the
Investment Company Act of 1940, (ii) are rated AAA by S&P and
Aaa by
Moody's and (iii) have portfolio assets of at least
$5,000,000,000.
"CASH FLOW" shall mean, for any period, the sum, for the
Borrower and its Subsidiaries for such
period determined on a consolidated basis
without duplication in accordance with
GAAP, of operating income before
amortization and depreciation and
extraordinary or non-recurring gains and
losses, and excluding (i) all other
non-cash or non-recurring subtractions from
such operating income not otherwise
excluded (including any expense recorded in
connection with or as a result of any
equity, equity-like or equity-linked
grants or awards by the Borrower or any of
its Subsidiaries to directors,
officers, employees or consultants), (ii)
all other non-cash items of income,
(iii) for any period ending on or prior to
the last day of the fiscal year
ending on or nearest to December 31, 2006,
expenses of the Borrower and its
Subsidiaries in respect of the
implementation of on-line services for any
Acquisition (including the 21st Century
Newspapers Acquisition) consummated
during such period up to $500,000 in the
aggregate, (iv) for any fiscal year,
other expenses of the Borrower and its
Subsidiaries in respect of on-line
services up to $1,000,000 in the aggregate,
(v) all costs associated with
compliance with Section 404 of the Sarbanes
Oxley Act of 2002, as amended, and
the rules and regulations promulgated
thereunder, up to $2,500,000 in the
aggregate during the term of this Agreement
and (vi) all payments under, and
accrued expenses relating to, the
discontinuance of the StarShare Plan of
Journal Register Newspapers, Inc. up to
$1,000,000 in the aggregate during the
term of this Agreement.
"CASUALTY EVENT" shall mean, with respect to any Property of
any Person, any loss of, damage to or
destruction of, or any condemnation or
taking of, such Property for which such
Person or any of its Subsidiaries
receives insurance proceeds, or proceeds of
a condemnation award or other
compensation.
"CLASS" shall have the meaning assigned to such term in
Section 1.03 hereof.
"CODE" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"COMMITMENT PERCENTAGE" shall mean (a) with respect to any
Revolving Credit Lender, such Lender's
Revolving Credit Commitment Percentage;
(b) with respect to any Tranche A Term Loan
Lender, the ratio of (i) the
outstanding principal amount of the Tranche
A Term Loan held by such Lender to
(ii) the aggregate outstanding principal
amount of the Tranche A Term Loans held
by all of the Tranche A Term Loan Lenders;
(c) with respect to any Tranche B
Term Loan Lender, the ratio of (i) the
outstanding principal amount of the
Tranche B Term Loan held by such Lender to
(ii) the aggregate outstanding
principal amount of the Tranche B Term
Loans held by all of the Tranche B Term
Loan Lenders; and (d) with respect to each
Series and Class of Incremental Loans
and each Incremental Loan Lender holding
Incremental Loans of such Series and
Class, the ratio of (i) the amount of the
Incremental Loan of such Series and
Class of such Lender to (ii) the aggregate
amount of the Incremental Loan
CREDIT AGREEMENT
<PAGE>
7
Commitments of such Series and Class of all
of the Incremental Loan Lenders
holding Incremental Loans of such Series
and Class (or, if such Series of
Incremental Loan Commitments have expired
or terminated, the ratio of (i) the
aggregate outstanding principal amount of
the Incremental Loan(s) of such Series
and Class held by such Lender to (ii) the
aggregate outstanding principal amount
of the Incremental Loans of such Series and
Class held by all of the Incremental
Loan Lenders).
"COMMITMENTS" shall mean, collectively, the Revolving Credit
Commitments, the Tranche A Term Loan
Commitments, the Tranche B Term Loan
Commitments and (if any) the Incremental
Loan Commitments.
"COMPLIANCE CERTIFICATE" shall mean a certificate of the chief
financial officer or controller of the
Borrower, substantially in the form of
Exhibit C hereto (with such changes thereto
as may be agreed from time to time
by the Borrower and the Administrative
Agent consistent with the terms of this
Agreement).
"CONTINUE", "CONTINUATION" and "CONTINUED" shall refer to the
continuation pursuant to Section 2.08
hereof of a Eurodollar Loan from one
Interest Period to the next Interest
Period.
"CONVERT", "CONVERSION" and "CONVERTED" shall refer to a
conversion pursuant to Section 2.08 hereof
of Base Rate Loans into Eurodollar
Loans or Eurodollar Loans into Base Rate
Loans which may be accompanied by the
transfer by a Lender (at its sole
discretion) of a Loan from one Applicable
Lending Office to another.
"CONVERTIBLE DEBT" shall mean Indebtedness (whether senior or
subordinated) of the Borrower that may be
converted into Capital Stock of the
Borrower.
"CREDIT DOCUMENTS" shall mean, collectively, this Agreement,
the Notes, the Letter of Credit Documents,
the Subsidiary Guarantee, and the
Security Documents.
"DEFAULT"
shall mean an Event of Default or an event which
with notice or lapse of time or both would
become an Event of Default.
"DISPOSITION" shall mean (a) any sale, assignment, transfer or
other disposition of any Property (whether
now owned or hereafter acquired) by
the Borrower or any of its Subsidiaries to
any other Person, excluding any such
sale, assignment, transfer or other
disposition in the ordinary course of
business and on ordinary business terms, or
(b) the entering into of any
agreement by the Borrower or any of its
Subsidiaries with any other Person
pursuant to which such other Person has the
right to use or manage or otherwise
exploit any Property (whether now owned or
hereafter acquired) of the Borrower
or such Subsidiary and pursuant to which
such other Person is entitled, directly
or indirectly, to retain all or a
substantial part of the revenues derived from
the use or management or other exploitation
of such Property. The terms
"DISPOSE" and "DISPOSED" used as a verb
shall have a correlative meaning.
"DISQUALIFIED CAPITAL STOCK" shall mean any Capital Stock
which, by its terms (or by the terms of any
security into which it is
convertible or for which it is exchangeable
at the
CREDIT AGREEMENT
<PAGE>
8
option of the holder thereof), or upon the
happening of any event, matures into
a cash payment (excluding any maturity as
the result of an optional redemption
by the issuer thereof) or is mandatorily
redeemable for cash, pursuant to a
sinking fund obligation or otherwise, or
redeemable for cash at the sole option
of the holder thereof (except, in each
case, upon the occurrence of a change of
control), on or prior to the date that is
91 days after the final maturity of
the Tranche B Term Loans.
"DOLLARS" and "$" shall mean lawful money of the United States
of America.
"DOMESTIC SUBSIDIARY" shall mean any Subsidiary other than a
Foreign Subsidiary.
"ECF PERCENTAGE" shall mean 50%.
"EFFECTIVE DATE" shall mean the date upon which the conditions
to effectiveness of this Agreement
specified in Section 6.01 hereof shall have
been satisfied or waived.
"ENVIRONMENTAL CLAIM" shall mean, with respect to any Person,
any written or oral notice, claim, demand
or other communication (each, a
"CLAIM") by any other Person alleging or
asserting such Person's liability for
investigatory costs, cleanup costs,
governmental response costs, damages to
natural resources or other Property or
health, personal injuries, fines or
penalties arising out of, based on or
resulting from (i) the presence, or
Release, of any Hazardous Material at or
from any location, whether or not owned
by such Person, or (ii) circumstances
forming the basis of any violation, or
alleged violation, of any Environmental
Law. The term "Environmental Claim"
shall include, without limitation, any
claim by any Governmental Authority for
enforcement, cleanup, removal, response,
remedial or other actions or damages
pursuant to any applicable Environmental
Law, and any claim by any third party
seeking damages, contribution,
indemnification, cost recovery, compensation or
injunctive relief resulting from the
presence or Release of Hazardous Materials
or arising from alleged injury or threat of
injury to health, safety or the
environment.
"ENVIRONMENTAL LAWS" shall mean any and all present and future
Federal, state, local and foreign laws,
rules or regulations, and any orders or
decrees, in each case as now or hereafter
in effect, relating to the regulation
or protection of the environment (including
the environment as it affects human
health or safety) or to emissions,
discharges, Releases or threatened Releases
of pollutants, contaminants, chemicals or
toxic or hazardous substances or
wastes into the indoor or outdoor
environment, including, without limitation,
ambient air, soil, surface water, ground
water, wetlands, land or subsurface
strata, or otherwise relating to the
manufacture, processing, distribution,
generation, recycling, use, treatment,
storage, disposal, transport or handling
of pollutants, contaminants, chemicals or
toxic or hazardous substances or
wastes (or the effect of the same on human
health or safety).
"EQUITY RIGHTS" shall mean, with respect to any Person, any
subscriptions, options, warrants,
commitments, preemptive rights or agreements
of any kind (including, without limitation,
any stockholders' or voting trust
agreements) for the issuance, sale,
registration or voting of, or securities
convertible into, any additional Capital
Stock of any class or type of, such
Person.
CREDIT AGREEMENT
<PAGE>
9
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"ERISA AFFILIATE" shall mean any corporation or trade or
business that is a member of any group of
organizations (i) described in Section
414(b) or (c) of the Code of which the
Borrower is a member and (ii) solely for
purposes of potential liability under
Section 302(c)(11) of ERISA and Section
412(c)(11) of the Code and the lien created
under Section 302(f) of ERISA and
Section 412(n) of the Code, described in
Section 414(m) or (o) of the Code of
which the Borrower is a member.
"EURODOLLAR BASE RATE" shall mean, with respect to any
Eurodollar Loan for any Interest Period
therefor, the rate appearing on Page
3750 of the Telerate Service (or on any
successor or substitute page of such
Service, or any successor to or substitute
for such Service, providing rate
quotations comparable to those currently
provided on such page of such Service,
as determined by the Administrative Agent
from time to time for purposes of
providing quotations of interest rates
applicable to dollar deposits in the
London interbank market) at approximately
11:00 a.m., London time, two Business
Days prior to the commencement of such
Interest Period, as the rate for dollar
deposits with a maturity comparable to such
Interest Period. In the event that
such rate is not available at such time for
any reason, then the Eurodollar Base
Rate with respect to such Eurodollar Loan
for such Interest Period shall be the
rate at which dollar deposits of $5,000,000
and for a maturity comparable to
such Interest Period are offered by the
principal London office of the Person
serving as the Administrative Agent in
immediately available funds to leading
banks in the London interbank market at
approximately 11:00 a.m., London time,
two Business Days prior to the commencement
of such Interest Period.
"EURODOLLAR LOANS" shall mean Loans the interest rates on
which are determined on the basis of rates
referred to in the definition of
"Eurodollar Base Rate" in this Section
1.01.
"EURODOLLAR RATE" shall mean, for any Eurodollar Loan for any
Interest Period therefor, a rate per annum
(rounded, if necessary, to the
nearest 1/100 of 1%) determined by the
Administrative Agent to be equal to the
quotient of the Eurodollar Base Rate for
such Loan for such Interest Period
DIVIDED BY 1 MINUS the Statutory Reserve
Rate for such Loan for such Interest
Period.
"EVENT OF DEFAULT" shall have the meaning given to such term
in Section 9 hereof.
"EXCESS CASH FLOW" shall mean, for any period the sum, for the
Borrower and its Subsidiaries for such
period determined on a consolidated basis
without duplication in accordance with
GAAP, of (a) operating income before
amortization and depreciation and
extraordinary or non-recurring gains and
losses (unless received or payable in cash)
for such period, MINUS (b) the sum
of the following for such period (without
duplication): (i) Total Debt Service
PLUS (ii) the aggregate amount of optional
prepayments of principal of the Loans
made pursuant to Section 2.08 hereof (but,
in the case of any such prepayments
of Revolving Credit Loans, only to the
extent of an accompanying permanent
reduction in the Revolving Credit
Commitments) divided by the ECF Percentage
PLUS (iii) (subject to the proviso below)
Capital Expenditures made as permitted
by Section 8.10 hereof PLUS (iv) (subject
to the proviso below)
CREDIT AGREEMENT
<PAGE>
10
amounts paid, or to be paid in the
immediately succeeding fiscal year, in cash
in respect of Permitted Acquisitions made
during such period PLUS (v) Restricted
Payments made as permitted by Section
8.09(c) hereof PLUS (vi) any net increase
in Working Capital (or MINUS any net
decrease in Working Capital, other than any
such decrease reasonably determined by the
Borrower to be temporary) PLUS (vii)
costs paid in cash in connection with
obtaining any Swap Agreements PLUS (viii)
taxes (other than deferred taxes) paid
during such period or paid or expected to
be paid in cash thereafter in respect of
such period or any prior period, in
each case in respect of income or
activities earned or conducted during such
period, to the extent included in arriving
at such operating income PLUS (ix)
the aggregate net amount of gain on any
Disposition or Casualty Event with
respect to any Property of the Borrower and
its Subsidiaries to the extent
included in arriving at such operating
income PLUS (x) amounts paid, or to be
paid in the immediately succeeding fiscal
year, in cash pursuant to any pension,
post-retirement or other benefit plan;
PROVIDED that there shall be added to the
amounts under clauses (iii) and (iv) above
for any period any amounts reasonably
determined by the Borrower (but without
duplication to the extent such amounts
have been deducted in arriving at Excess
Cash Flow for any prior period) in
respect of (x) projected Capital
Expenditures with respect to any project or
undertaking that has been commenced during
such period (including the
undertaking of any feasibility or other
initial study or work in respect
thereof) and/or (y) any Acquisition that
was under consideration at the end of
such period and is continuing at the time
of the determination of Excess Cash
Flow for such period; PROVIDED that the
aggregate amount of such amounts under
the foregoing proviso (excluding any such
amounts with respect to any such
Acquisition for which a binding letter of
intent or definitive agreement has
been executed by the Borrower or any of its
Subsidiaries prior to the time of
the determination of Excess Cash Flow for
such period) shall not exceed
$50,000,000 for such period.
"EXCLUDED TAXES" shall mean, with respect to the
Administrative Agent, any Lender, any
Issuing Lender or any other recipient of
any payment to be made by or on account of
any obligation of the Borrower
hereunder, (a) income or franchise taxes
imposed on (or measured by) its net
income by the United States of America, or
by the jurisdiction under the laws of
which such recipient is organized or in
which its principal office is located
or, in the case of any Lender, in which its
Applicable Lending Office is
located, (b) any branch profits taxes
imposed by the United States of America or
any similar tax imposed by any other
jurisdiction in which the Borrower is
located and (c) in the case of a Foreign
Lender, any withholding tax that is
imposed on amounts payable to such Foreign
Lender at the time such Foreign
Lender becomes a party to this Agreement or
is attributable to such Foreign
Lender's failure or inability (including as
a result of such Foreign Lender's
lack of entitlement to an exemption or
reduction of the type referred to
therein) to comply with Section 5.07(e)
hereof.
"EXISTING CREDIT AGREEMENT" shall mean the Credit Agreement
dated as of July 15, 1998 between the
Borrower, the lenders party thereto and
JPMCB as administrative agent thereunder
for such lenders, as amended and in
effect immediately prior to the Effective
Date.
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the
weighted average (rounded, if necessary, to
the nearest 1/100 of 1%) of the
rates on overnight Federal funds
transactions with members of the Federal
Reserve System arranged by Federal funds
brokers, as published on the next
succeeding Business Day by the Federal
Reserve Bank of New York, or, if such
rate is not so published for any day that
is a Business Day, the average
(rounded, if
CREDIT AGREEMENT
<PAGE>
11
necessary, to the nearest 1/100 of 1%) of
the quotations for such
day for such transactions received by the
Administrative Agent from three
Federal funds brokers of recognized
standing selected by it.
"FOREIGN LENDER" shall mean any Lender that is organized under
the laws of a jurisdiction other than that
in which the Borrower is located. For
purposes of this definition, the United
States of America, each State thereof
and the District of Columbia shall be
deemed to constitute a single
jurisdiction.
"FOREIGN SUBSIDIARY" shall mean any Subsidiary which is
organized under the laws of any
jurisdiction outside the United States of
America, any State thereof and the District
of Columbia.
"GAAP" shall mean United States generally accepted accounting
principles applied on a basis consistent
with those which, in accordance with
the last sentence of Section 1.02(a)
hereof, are to be used in making the
calculations for purposes of determining
compliance with this Agreement.
"GOVERNMENTAL AUTHORITY" shall mean the government of the
United States of America, or of any other
nation, or any political subdivision
thereof, whether state or local, and any
agency, authority, instrumentality,
regulatory body, court, central bank or
other entity exercising executive,
legislative, judicial, taxing, regulatory
or administrative powers or functions
of or pertaining to government.
"GUARANTEE" shall mean a guarantee, an endorsement, a
contingent agreement to purchase or to
furnish funds for the payment or
maintenance of, or otherwise to be or
become contingently liable under or with
respect to, the Indebtedness, other
obligations, net worth, working capital or
earnings of any Person, or a guarantee of
the payment of dividends or other
distributions upon the stock or equity
interests of any Person, or an agreement
to purchase, sell or lease (as lessee or
lessor) Property, products, materials,
supplies or services primarily for the
purpose of enabling a debtor to make
payment of his, her or its obligations or
an agreement to assure a creditor
against loss, and including, without
limitation, causing a bank to issue a
letter of credit or other similar
instrument for the benefit of another Person,
but excluding endorsements for collection
or deposit in the ordinary course of
business. The terms "GUARANTEE" and
"GUARANTEED" used as a verb shall have a
correlative meaning.
"HAZARDOUS MATERIAL" shall mean, collectively, (a) any
petroleum or petroleum products, flammable
materials, explosives, radiologically
contaminated or enhanced materials,
asbestos, urea formaldehyde foam insulation,
and transformers or other equipment that
contain polychlorinated biphenyls, (b)
any chemicals or other materials or
substances that are now or hereafter become
defined as or included in the definition of
"hazardous substances", "hazardous
wastes", "hazardous materials", "extremely
hazardous wastes", "restricted
hazardous wastes", "toxic substances",
"toxic pollutants", "contaminants",
"pollutants" or words of similar import
under any Environmental Law and (c) any
other chemical or other material or
substance, exposure to which is now or
hereafter prohibited, limited or regulated
under any Environmental Law.
CREDIT AGREEMENT
<PAGE>
12
"IMMATERIAL SUBSIDIARY" shall mean (a) as of the Effective
Date, any Subsidiary listed in Schedule
1.01 hereto and (b) at any time
thereafter, any Subsidiary designated as
such by the Borrower in a certificate
delivered by the Borrower to the
Administrative Agent (and which designation has
not been rescinded in a subsequent
certificate of the Borrower delivered to the
Administrative Agent), PROVIDED that (i) no
Subsidiary shall be (or may be
designated as) an Immaterial Subsidiary if
it has aggregate assets or Cash Flow
of more than $5,000,000 and (ii) neither
the assets of, nor the aggregate Cash
Flow of, all Immaterial Subsidiaries may
exceed $20,000,000, in each case
determined as of the end of the fiscal
quarter or fiscal year most recently
ended (and, with respect to any such
determination of Cash Flow, for the period
of four fiscal quarters then ended).
"INCREMENTAL LENDER" shall mean a Lender with an Incremental
Loan Commitment or an outstanding
Incremental Loan.
"INCREMENTAL LOAN" shall mean an Incremental Revolving Credit
Loan or an Incremental Term Loan.
"INCREMENTAL LOAN AMENDMENT" shall mean any amendment to this
Agreement pursuant to which Incremental
Loan Commitments of any Series are
established pursuant to Section
2.01(d).
"INCREMENTAL LOAN COMMITMENT" shall mean an Incremental
Revolving Credit Commitment or an
Incremental Term Loan Commitment. The
aggregate amount of the Incremental Loan
Commitments on the Effective Date is
zero and at any time thereafter shall not
exceed $500,000,000.
"INCREMENTAL REVOLVING CREDIT COMMITMENT" shall mean, with
respect to each Incremental Lender of any
Series, the commitment, if any, of
such Lender to make Incremental Revolving
Credit Loans of such Series hereunder.
The initial amount of each Lender's
Incremental Revolving Credit Commitment of
any Series will be specified in the
Incremental Loan Amendment for such Series,
or will be set forth in the Assignment and
Assumption pursuant to which such
Lender shall have assumed its Incremental
Revolving Credit Commitment of such
Series.
"INCREMENTAL REVOLVING CREDIT LOAN" has the meaning assigned
to such term in Section 2.01(d).
"INCREMENTAL REVOLVING CREDIT COMMITMENT TERMINATION DATE"
shall mean, with respect to the Incremental
Revolving Credit Loans of any
Series, the maturity date for such
Incremental Revolving Credit Loans of such
Series as specified in the Incremental Loan
Amendment for such Series.
"INCREMENTAL TERM LOAN" has the meaning assigned to such term
in Section 2.01(d).
"INCREMENTAL TERM LOAN COMMITMENT" shall mean, with respect to
each Incremental Lender of any Series, the
commitment, if any, of such Lender to
make Incremental
CREDIT AGREEMENT
<PAGE>
13
Term Loans of such Series hereunder. The
initial amount of each Lender's
Incremental Term Loan Commitment of any
Series will be specified in the
Incremental Loan Amendment for such Series,
or will be set forth in the
Assignment and Assumption pursuant to which
such Lender shall have assumed its
Incremental Term Loan Commitment of such
Series.
"INCREMENTAL TERM LOAN MATURITY DATE" shall mean, with respect
to the Incremental Term Loans of any
Series, the maturity date for such
Incremental Term Loans of such Series as
specified in the Incremental Loan
Amendment for such Series.
"INCREMENTAL TERM LOAN PRINCIPAL PAYMENT DATE" shall mean, for
each Series of Incremental Term Loans, the
date or dates for repayment of such
Incremental Term Loans as specified in the
Incremental Loan Amendment for such
Series.
"INDEBTEDNESS" shall mean, as to any Person: (a) indebtedness
created, issued or incurred by such Person
for borrowed money (whether by loan
or the issuance and sale of debt
securities); (b) obligations of such Person to
pay the deferred purchase or acquisition
price of property or services
(excluding all current trade payables
(other than for borrowed money) arising,
and all current accrued expenses and
liabilities for unearned income incurred,
in the ordinary course of business); (c)
such indebtedness or other obligations
of others secured by a Lien on Property of
such Person, whether or not the
respective indebtedness or other obligation
so secured has been assumed by such
Person; (d) obligations of such Person in
respect of letters of credit or
similar instruments issued or accepted by
banks and other financial institutions
for the account of such Person; (e) Capital
Lease Obligations of such Person;
and (f) Indebtedness of others Guaranteed
by such Person; PROVIDED that there
shall be excluded from Indebtedness of the
Borrower and its Subsidiaries any of
the foregoing obligations of the Borrower
or any of its Subsidiaries described
in clauses (a) through (f) above owing to
the Borrower or any other such
Subsidiary, as the case may be.
"INDEMNIFIED TAXES" shall mean Taxes other than Excluded
Taxes.
"INTEREST COVERAGE RATIO" shall mean, at any date, the ratio
of (a) Cash Flow (calculated on a Pro Forma
Basis) for the period of four
complete consecutive fiscal quarters ended
on, or most recently ended prior to,
such date to (b) Interest Expense
(calculated on a Pro Forma Basis) for such
period.
"INTEREST EXPENSE" shall mean, for any period, all interest
expense of the Borrower and its
Subsidiaries for such period (determined on a
consolidated basis without duplication in
accordance with GAAP), including
imputed interest expense in respect of
Capital Lease Obligations, paid, accrued
or capitalized during such period, but
excluding, to the extent included in such
interest expense for such period, (i)
amortization of Swap Agreements, (ii)
amortization of debt issuance costs and
(iii) other non-cash interest items.
"INTEREST PERIOD" shall mean, with respect to any Eurodollar
Loan, each period commencing on the date
such Eurodollar Loan is made or
Converted from a Base Rate Loan or the last
day of the immediately preceding
Interest Period for such Loan and ending on
the numerically corresponding day in
the first, second, third, sixth or (to the
extent available from all of the
Lenders, as determined by the
Administrative Agent) ninth or twelfth month
thereafter (or
CREDIT AGREEMENT
<PAGE>
14
any other period with the consent of the
Lenders (which consent shall not be
unreasonably withheld), as determined by
the Administrative Agent), as the
Borrower may select as provided in Section
4.05 hereof, except that each
Interest Period which commences on the last
Business Day of a calendar month (or
on any day for which there is no
numerically corresponding day in the
appropriate subsequent calendar month)
shall end on the last Business Day of the
appropriate subsequent calendar month.
Notwithstanding the foregoing: (a) if any
Interest Period for any Revolving Credit
Loan would otherwise commence before
and end after the Revolving Credit
Commitment Termination Date, such Interest
Period shall end on the Revolving Credit
Commitment Termination Date; (b) no
Interest Period for any Term Loan of any
Class may commence before and end after
any Principal Payment Date unless, after
giving effect thereto, the aggregate
principal amount of the Term Loans of such
Class having Interest Periods which
end after such Principal Payment Date shall
be equal to or less than the
aggregate principal amount of the Term
Loans of such Class scheduled to be
outstanding after giving effect to the
payments of principal required to be made
on such Principal Payment Date; (c) no
Interest Period for any Incremental Loan
of any Series may commence before and end
after any Principal Payment Date for
Incremental Loans of such Series unless,
after giving effect thereto, the
aggregate principal amount of the
Incremental Loans of such Series having
Interest Periods which end after such
Principal Payment Date shall be equal to
or less than the aggregate principal amount
of the Incremental Loans of such
Series scheduled to be outstanding after
giving effect to the payment of
principal required to be made on such
Principal Payment Date; and (d) each
Interest Period which would otherwise end
on a day which is not a Business Day
shall end on the next succeeding Business
Day (or, if such next succeeding
Business Day falls in the next succeeding
calendar month, on the immediately
preceding Business Day).
"INVESTMENT" shall mean, for any Person: (a) the acquisition
(whether for cash, Property, services or
securities or otherwise) of Capital
Stock, bonds, notes, debentures,
partnership or other ownership interests or
other securities of any other Person; (b)
the making of any deposit with, or
advance, loan or other extension of credit
to, any other Person (including the
purchase of Property from another Person
subject to an understanding or
agreement, contingent or otherwise, to
resell such Property to such Person, but
excluding any such advance, loan or
extension of credit having a term not
exceeding 90 days representing the purchase
price of inventory or supplies sold
by such Person in the ordinary course of
business); (c) the entering into of any
Guarantee of, or other contingent
obligation with respect to, Indebtedness or
other liability of any other Person and
(without duplication) any amount
committed to be advanced, lent or extended
to such Person; or (d) the entering
into of any Swap Agreement.
"ISSUING LENDER" shall mean each of JPMCB and/or such other
Lender designated by the Borrower as an
"Issuing Lender" hereunder that has
agreed to such designation (and is
reasonably acceptable to the Administrative
Agent), each in its capacity as an issuer
of Letters of Credit hereunder, and
its successors in such capacity as provided
in Section 2.10(j). Any Issuing
Lender may, in its discretion, arrange for
one or more Letters of Credit to be
issued by Affiliates of such Issuing
Lender, in which case the term "Issuing
Lender" shall include any such Affiliate
with respect to Letters of Credit
issued by such Affiliate.
"JPMCB" shall mean JPMorgan Chase Bank.
CREDIT AGREEMENT
<PAGE>
15
"LC DISBURSEMENT" shall mean a payment made by any Issuing
Lender pursuant to a Letter of Credit.
"LC EXPOSURE" shall mean, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding
Letters of Credit at such time PLUS
(b) the aggregate amount of all LC
Disbursements that have not yet been
reimbursed by or on behalf of the Borrower
at such time. The LC Exposure of any
Revolving Credit Lender at any time shall
be its Revolving Credit Commitment
Percentage of the total LC Exposure at such
time.
"LENDERS" shall mean the Persons listed on Annex 1 and any
other Person that shall have become a party
hereto pursuant to an Assignment and
Assumption or an Incremental Loan
Amendment, other than any such Person that
ceases to be a party hereto pursuant to an
Assignment and Assumption. Unless the
context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"LETTER OF CREDIT" shall mean any letter of credit issued
pursuant to this Agreement.
"LETTER OF CREDIT DOCUMENTS" shall mean, with respect to any
Letter of Credit, collectively, any
application therefor and any other
agreements, instruments, guarantees or
other documents (whether general in
application or applicable only to such
Letter of Credit) governing or providing
for (a) the rights and obligations of the
parties concerned or at risk with
respect to such Letter of Credit or (b) any
collateral security for any of such
obligations.
"LIEN" shall mean, with respect to any Property, any mortgage,
lien, pledge, charge, security interest or
encumbrance of any kind in respect of
such Property. For purposes of this
Agreement and the other Credit Documents, a
Person shall be deemed to own subject to a
Lien any Property which it has
acquired or holds subject to the interest
of a vendor or lessor under any
conditional sale agreement, capital lease
or other title retention agreement
other than an operating lease relating to
such Property.
"LOANS" shall mean the Revolving Credit Loans, Tranche A Term
Loans, Tranche B Term Loans, Incremental
Loans and Swingline Loans.
"MARGIN STOCk" shall mean margin stock within the meaning of
Regulation U and Regulation X.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect
on (a) the business, cash flows, results of
operations, assets, liabilities or
financial condition of the Borrower and its
Subsidiaries taken as a whole or (b)
the validity or enforceability of any of
the Credit Documents or the rights and
remedies of the Lenders and the
Administrative Agent thereunder.
"MATERIAL INDEBTEDNESS" shall mean Indebtedness (other than
the Loans and Letters of Credit), or
obligations in respect of one or more Swap
Agreements, of any one or more of the
Borrower and its Subsidiaries in an
aggregate principal amount exceeding
$20,000,000. For purposes of determining
Material Indebtedness, the "principal
amount" of the obligations of
CREDIT AGREEMENT
<PAGE>
16
the Borrower or any Subsidiary in respect
of any Swap Agreement at any time
shall be the maximum aggregate amount
(giving effect to any netting agreements)
that the Borrower or such Subsidiary would
be required to pay if such Swap
Agreement were terminated at such time.
"MOODY'S" shall mean Moody's Investors Service, Inc. and its
successors.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan defined
as such in Section 3(37) of ERISA to which
contributions have been made by the
Company or any ERISA Affiliate and which is
covered by Title IV of ERISA.
"NET PROCEEDS" shall mean, with respect to any receipt of cash
proceeds of any Disposition referred to in
Section 2.09(b)(i) hereof (including
any cash received in respect of any
non-cash proceeds, but only as and when
received) or any insurance payment, or any
condemnation award or other
compensation in respect of any Casualty
Event referred to in Section 2.09(b)(ii)
hereof (but only if, individually, in
excess of $1,000,000), the excess, if any
of (a) the aggregate amount of such
proceeds OVER (b) the sum of (i) the
reasonable fees and out-of-pocket expenses
incurred by the Borrower or any of
its Subsidiaries, in the case of any such
Disposition, in effecting such
Disposition (including underwriting
discounts and commissions, brokerage or
other selling commissions, legal, advisory
and other fees and expenses,
including title and recording fees and
expenses and appraisal and environmental
fees and expenses) or, in the case of any
such Casualty Event, in collecting
such payment or compensation PLUS (ii) the
taxes paid (or reasonably estimated
to be payable) by the Borrower or any of
its Subsidiaries in connection with any
such Disposition or Casualty Event PLUS
(iii) in the case of any such
Disposition or Casualty Event, the amount
of any liabilities (contingent or
otherwise) reasonably estimated to be
payable by the Borrower or any of its
Subsidiaries and directly attributable to
such Disposition or Casualty Event (as
determined reasonably and in good faith by
the chief financial officer of the
Borrower) PLUS (iv) in the case of any such
Disposition or Casualty Event, any
contractually required repayments of
Indebtedness of the Borrower or any of its
Subsidiaries secured by a Lien on the
related Property.
"NEWSPAPER" shall mean each newspaper or other publication
including magazines, guides and directories
(whether in print or electronic
form) and proprietary information databases
in connection therewith (whether in
print or electronic form) owned or operated
by, or to be Acquired by, the
Borrower or any Subsidiary (or, if the
context so requires, a Subsidiary of the
Borrower that owns or operates, or proposes
to Acquire, such a business) and may
include, without limitation, tangible or
intangible assets used or usable in the
operation of such business, real property
used in connection with such business,
contracts, leases and agreements relating
to such business, all licenses
required for the operation of such business
in accordance with applicable laws
and regulations and copyrights, trademarks,
trade names, logos, jingles, service
marks, slogans and promotional materials
used in connection with such business.
"NOTES" shall mean the promissory notes (if any) issued by the
Borrower pursuant to Section 2.07(d)
hereof.
"OBLIGORS" shall mean, collectively, the Borrower and the
Subsidiary Guarantors.
CREDIT AGREEMENT
<PAGE>
17
"OTHER TAXES" shall mean any and all present or future stamp
or documentary taxes or any other excise or
property taxes, charges or similar
levies arising from any payment made under
any Credit Document or from the
execution, delivery or enforcement of, or
otherwise with respect to, any Credit
Document.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its
functions under ERISA.
"PERMITTED ACQUISITION" shall mean an Acquisition permitted by
clause (v) or (vi) of Section 8.05(b)
hereof.
"PERMITTED LIENS" shall mean, with respect to Liens on the
Property of the Borrower and/or any of its
Subsidiaries, collectively, Liens
permitted by Section 8.06 hereof.
"PERMITTED USAGE" shall mean (a) a Permitted Acquisition, (b)
a Capital Expenditure permitted to be made
under Section 8.10 hereof, (c) any
purchase of assets used or useful in the
business of the Borrower and its
Subsidiaries and (d) any other Investment
permitted under Section 8.08(g)
hereof.
"PERSON" shall mean any individual, corporation, limited
liability company, company, voluntary
association, partnership, joint venture,
trust, joint stock company, unincorporated
organization or Governmental
Authority or other entity of whatever
nature.
"PLAN" shall mean an employee benefit or other plan
established or maintained by the Borrower
or any ERISA Affiliate and which is
covered by Title IV of ERISA, other than a
Multiemployer Plan.
"POST-DEFAULT RATE" shall mean, in respect of any principal of
any Loan or any other amount owing to any
of the Lenders or the Administrative
Agent under or pursuant to this Agreement
or any other Credit Document, a rate
per annum equal to 2% PLUS the Base Rate as
in effect from time to time plus the
Applicable Margin (PROVIDED that, if any
amount in respect of which interest is
payable at the Post-Default Rate is
principal of a Eurodollar Loan and the day
interest thereon commences to be payable at
the Post-Default Rate is a day other
than the last day of an Interest Period
therefor, the "Post-Default Rate" for
such principal shall be, for the period
from and including such day to but
excluding the last day of such Interest
Period, 2% PLUS the interest rate for
such Loan for such Interest Period as
provided in Section 3.02(b) hereof and,
thereafter, the rate provided for above in
this definition).
"PRIME RATE" shall mean the rate of interest per annum
publicly announced from time to time by
JPMCB as its prime rate in effect at its
principal office in New York City; each
change in the Prime Rate shall be
effective from and including the date such
change is publicly announced as being
effective.
"PRINCIPAL PAYMENT DATES" shall mean (a) with respect to
Tranche A Term Loans, (i) each of the
Quarterly Dates occurring in March, June,
September and December of each year,
commencing with the Quarterly Date
occurring in December, 2006 through and
including the Quarterly Date occurring
in September, 2011 and (ii) November 12,
2011, (b) with respect to
CREDIT AGREEMENT
<PAGE>
18
Tranche B Term Loans, (i) each of the
Quarterly Dates occurring in March, June,
September and December of each year,
commencing with the Quarterly Date
occurring in December, 2006 through and
including the Quarterly Date occurring
in June, 2012 and (ii) August 12, 2012 and
(c) with respect to each Series of
Incremental Term Loans, the dates on which
the Borrower is required to pay each
scheduled installment of such Loans as may
be hereafter agreed between the
Borrower and the Lenders providing such
Loans in the relevant Incremental Loan
Amendment, provided that the requirements
of Section 3.01(e) hereof are
satisfied.
"PRO FORMA BASIS" shall mean, as to any Person, for any of the
following events which occur subsequent to
the commencement of a period for
which the financial effect of such event is
being calculated, and giving effect
to the event for which such calculation is
being made, such calculation as will
give PRO FORMA effect to such event as if
same had occurred at the beginning of
such period of calculation, and
(a) for purposes of the foregoing calculation, the transaction
giving rise to the need to calculate the PRO FORMA effect of any of
the
following events shall be assumed to have occurred on the first day
of
the
relevant measurement period for which such PRO FORMA effect is
being determined (the "REFERENCE PERIOD"), and in calculating
compliance with any ratio, such compliance will be determined on
the
basis of the Reference Period (notwithstanding anything to the
contrary
contained in the definition of the relevant ratio in this
Section
1.01);
(b) in making any determination in connection with the
incurrence or assumption of any Indebtedness under Section
8.07(c)
hereof or in connection with any Permitted Acquisition, (i)
such
Indebtedness shall be deemed to have been incurred or repaid at
the
beginning of the Reference Period, (ii) if such Indebtedness is
floating rate debt, Interest Expense for such Indebtedness for
such
period shall be computed on a PRO FORMA basis utilizing the
average
Eurodollar Base Rate (assuming 3-month interest periods) for
the
Reference Period PLUS the Applicable Margin for the relevant type
of
such floating rate debt, (iii) if such Indebtedness is fixed rate
debt,
Interest Expense for such Indebtedness for the Reference Period
shall
be computed on a PRO FORMA basis utilizing such fixed rate and (iv)
any
other Indebtedness repaid with the proceeds of such Indebtedness
shall
be deemed to have been repaid at the beginning of the Reference
Period
and the Interest Expense relating thereto shall be eliminated from
the
calculation; and
(c) in making any determination of Cash Flow, PRO FORMA effect
shall be given to the 21st Century Newspapers Acquisition or
any
Permitted Acquisition or Disposition, in each case for which there
is a
PRO FORMA effect during the Reference Period, as if the 21st
Century
Newspapers Acquisition or such Permitted Acquisition or
Disposition, as
the case may be, occurred on the first day of the Reference Period
and
the Cash Flow of the 21st Century Newspapers Acquisition or
such
Permitted Acquisition or Disposition, as applicable, shall be
adjusted
to include (i) any expense and cost reductions for which PRO
FORMA
effect would be permitted under Article 11 of Regulation S-X under
the
Securities Act of 1933, as amended, (ii) any other cost savings
directly attributable to the 21st Century Newspapers Acquisition
or
such Permitted Acquisition or Disposition, as the case may be,
within
one year of the date thereof that are projected by the Borrower in
good
faith to result therefrom and supportable or quantifiable by
appropriate records, but
CREDIT AGREEMENT
<PAGE>
19
not exceeding $10,000,000 individually for the 21st Century
Newspapers
Acquisition or any such Permitted Acquisition or Disposition and
(iii)
any other amount of cost savings approved by the Administrative
Agent
(such approval not to be unreasonably withheld) (and the Borrower
shall
furnish to the Administrative Agent reasonable detail regarding
any
such reductions and/or savings).
For purposes of this definition, whenever
PRO FORMA effect is to be given to any
occurrence or event, the PRO FORMA
calculations shall be determined in good
faith by a Senior Officer of the
Borrower.
"PROPERTY" shall mean all property of any kind whatsoever,
whether real, personal or mixed and whether
tangible or intangible, and any
right or interest in or to any such
property of any kind whatsoever.
"QUARTERLY DATES" shall mean the last Business Day of March,
June, September and December in each year,
the first of which shall be the first
such day after the date of this
Agreement.
"REGISTER" shall have the meaning assigned to such term in
Section 11.06 hereof.
"REGULATION D", "REGULATION U" and "REGULATION X" shall mean,
respectively, Regulation D, Regulation U
and Regulation X of the Board.
"REGULATORY CHANGE" shall mean, with respect to any Lender,
any change after the date of this Agreement
in United States Federal, state or
foreign law or regulations (including,
without limitation, Regulation D) or the
adoption or making after such date of any
interpretation, directive or request
applying to a class of banks including such
Lender of or under any United States
Federal, state or foreign law or
regulations (whether or not having the force of
law and whether or not failure to comply
therewith would be unlawful) by any
court or Governmental Authority charged
with the interpretation or
administration thereof.
"RELEASE"
shall mean any release, spill, emission, leaking,
pumping, injection, deposit, disposal,
discharge, dispersal, leaching or
migration into the indoor or outdoor
environment, including, without limitation,
the movement of Hazardous Materials through
ambient air, soil, surface water,
ground water, wetlands, land or subsurface
strata.
"REQUIRED LENDERS" shall mean, at any time, Lenders having
more than 50% of the sum of (a) the
aggregate Revolving Credit Exposures at such
time PLUS (b) the aggregate outstanding
principal amount of the Term Loans and
Incremental Loans at such time PLUS (c) the
aggregate unused amount of the
Commitments at such time. The "Required
Lenders" of a particular Class of Loans
means Lenders having outstanding Loans and
unused Commitments of such Class
representing more than 50% of the total
outstanding Loans (or, in the case of
Revolving Credit Lenders, Revolving Credit
Exposures) and (if any) unused
Commitments of such Class at such time.
"RESTRICTED
PAYMENT" shall mean any dividend or other
distribution (whether in cash, securities
or other property but excluding
dividends payable solely in additional
shares, or
CREDIT AGREEMENT
<PAGE>
20
in rights to acquire shares, of Capital
Stock (other than Disqualified Capital
Stock) of the Borrower) with respect to any
shares of any class of Capital Stock
of the Borrower or any of its Subsidiaries,
or any payment (whether in cash,
securities or other property), including
any sinking fund or similar deposit, on
account of the purchase, redemption,
retirement, acquisition, cancellation or
termination of any such shares of Capital
Stock of the Borrower or any option,
warrant or other right to acquire any such
shares of Capital Stock of the
Borrower.
"REVOLVING CREDIT AVAILABILITY PERIOD" shall mean the period
from and including the Effective Date to
but excluding the earlier of the
Revolving Credit Commitment Termination
Date and the date of termination of the
Revolving Credit Commitments.
"REVOLVING CREDIT COMMITMENT" shall mean, with respect to each
Lender, the commitment, if any, of such
Lender to make Revolving Credit Loans
and to acquire participations in Letters of
Credit and Swingline Loans
hereunder, expressed as an amount
representing the maximum aggregate amount of
such Lender's Revolving Credit Exposure
hereunder, as such commitment may be (a)
reduced from time to time pursuant to
Section 2.03 hereof and (b) reduced or
increased from time to time pursuant to
assignments by or to such Lender
pursuant to Section 11.06 hereof. The
initial amount of each Lender's Revolving
Credit Commitment is set forth on Annex 1,
or in the Assignment and Assumption
pursuant to which such Lender shall have
assumed its Revolving Credit
Commitment, as applicable. The aggregate
amount of the Lenders' Revolving Credit
Commitments is $425,000,000 as of the
Effective Date.
"REVOLVING CREDIT COMMITMENT PERCENTAGE" shall mean, with
respect to any Revolving Credit Lender, the
ratio of (a) the amount of the
Revolving Credit Commitment of such Lender
to (b) the aggregate amount of the
Revolving Credit Commitments of all of the
Revolving Credit Lenders (or, if the
Revolving Credit Commitments have expired
or terminated, the ratio of (a) the
Revolving Credit Exposure of such Lender to
(b) the aggregate Revolving Credit
Exposures of the Revolving Credit
Lenders).
"REVOLVING CREDIT COMMITMENT REDUCTION DATES" shall mean (i)
each of the Quarterly Dates occurring in
March, June, September and December of
each year, commencing with the Quarterly
Date occurring in December, 2009
through and including the Quarterly Date
occurring in September, 2011 and (ii)
the Revolving Credit Commitment Termination
Date.
"REVOLVING CREDIT COMMITMENT TERMINATION DATE" shall mean
November 12, 2011.
"REVOLVING CREDIT EXPOSURE" shall mean, with respect to any
Lender at any time, the sum of the
outstanding principal amount of such Lender's
Revolving Credit Loans and its LC Exposure
and Swingline Exposure at such time.
"REVOLVING CREDIT LENDERS" shall mean (a) on the Effective
Date, the Lenders having Revolving Credit
Commitments as set forth on Annex 1
hereto and (b) thereafter, the Lenders from
time to time having Revolving Credit
Exposure and holding Revolving Credit
Commitments after giving effect to any
assignments thereof permitted by Section
11.06 hereof.
CREDIT AGREEMENT
<PAGE>
21
"REVOLVING CREDIT LOANS" shall mean the loans provided for by
Section 2.01(c) hereof, which may be Base
Rate Loans and/or Eurodollar Loans.
"SCHEDULED PAYMENT" shall mean each repayment of the principal
of the Tranche A Term Loans required to be
made on a Principal Payment Date
pursuant to Section 3.01(a) hereof, each
repayment of the principal of the
Tranche B Term Loans required to be made on
a Principal Payment Date pursuant to
Section 3.01(b) hereof, each repayment of
the principal of the Incremental Loans
required to be made on a Principal Payment
Date pursuant to Section 3.01(e)
hereof and the reduction in the Revolving
Credit Commitments required by Section
2.03(b)(ii) hereof. For purposes of
computing Total Debt Service for any period,
the amount of each Scheduled Payment shall
be the aggregate principal amount of
the Tranche A Term Loans, Tranche B Term
Loans and Incremental Loans actually
repaid during such period pursuant to
Section 3.01(a), Section 3.01(b) or
Section 3.01(e) hereof, respectively, on a
Principal Payment Date after giving
effect to any reductions in the amount
required to be repaid on such Principal
Payment Date pursuant to Section 2.08 or
2.09 hereof PLUS (b) the aggregate
principal amount of the Revolving Credit
Loans actually repaid during such
period pursuant to Section 2.09(a) hereof
after giving effect to the reduction
in the Revolving Credit Commitments
pursuant to Section 2.03(b)(ii) hereof PLUS
(c) the aggregate principal amount of Loans
prepaid during such period pursuant
to Section 2.08(c) hereof to the extent
such prepaid amount would otherwise have
been required to be paid during such period
pursuant to Section 3.01(a), Section
3.01(b) or Section 3.01(e) hereof.
"SECURITY AGREEMENT" shall mean a Security Agreement
substantially in the form of Exhibit A
hereto between the Obligors and the
Administrative Agent.
"SECURITY DOCUMENTS" shall mean, collectively, the Security
Agreement, all other security agreements,
pledge agreement, mortgages, deeds of
trust and other similar agreements or
instruments creating a security interest
in or lien upon any Property and required
to be entered into by any Obligor
pursuant to this Agreement, and all Uniform
Commercial Code financing statements
required thereby to be filed with respect
to the security interests created
pursuant thereto.
"SENIOR DEBT" shall mean, at any date, Total Debt outstanding
as at such date MINUS the sum of (a)
Approved Subordinated Debt and (b)
Convertible Debt outstanding as at such
date.
"SENIOR LEVERAGE RATIO" shall mean, at any date, the ratio of
(a) the aggregate principal amount of
Senior Debt (calculated on a Pro Forma
Basis) of the Borrower and its Subsidiaries
outstanding as at such date to (b)
Cash Flow (calculated on a Pro Forma Basis)
for the period of four complete
consecutive fiscal quarters ended on, or
most recently ended prior to, such
date.
"SENIOR OFFICER" shall mean the President, Executive Vice
President, Chief Financial Officer,
Controller or Vice President-Finance of the
Borrower, as the context requires.
"SERIES" shall have the meaning assigned to such term in
Section 1.03 hereof.
CREDIT AGREEMENT
<PAGE>
22
"SIGNIFICANT ACQUISITION" shall mean any Acquisition the
purchase price of which equals or exceeds
5% of the assets of the Borrower and
its Subsidiaries taken as a whole.
"SIGNIFICANT DISPOSITION" shall mean any Disposition the gross
proceeds of which equals or exceeds 5% of
the assets of the Borrower and its
Subsidiaries taken as a whole.
"S&P" shall mean Standard & Poor's Ratings Services and
its
successors.
"STATUTORY RESERVE RATE" shall mean a fraction (expressed as a
decimal), the numerator of which is the
number one and the denominator of which
is the number one MINUS the aggregate of
the maximum reserve percentages
(including any marginal, special, emergency
or supplemental reserves) expressed
as a decimal established by the Board to
which the Administrative Agent is
subject for eurocurrency funding (currently
referred to as "Eurocurrency
Liabilities" in Regulation D of the Board).
Such reserve percentages shall
include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be
deemed to constitute eurocurrency funding
and to be subject to such reserve
requirements without benefit of or credit
for proration, exemptions or offsets
that may be available from time to time to
any Lender under such Regulation D or
any comparable regulation. The Statutory
Reserve Rate shall be adjusted
automatically on and as of the effective
date of any change in any reserve
percentage.
"SUBORDINATED DEBT" shall mean any unsecured Indebtedness for
which the Borrower is directly and
primarily liable that is expressly
subordinated in right of payment to the
payment of any other Indebtedness of the
Borrower.
"SUBSIDIARY" shall mean, with respect to any Person (the
"PARENT") at any date, any corporation,
limited liability company, partnership,
association or other entity the accounts of
which would be consolidated with
those of the parent in the parent's
consolidated financial statements if such
financial statements were prepared in
accordance with GAAP as of such date, as
well as any other corporation, limited
liability company, partnership,
association or other entity of which
securities or other ownership interests
representing more than 50% of the ordinary
voting power or, in the case of a
partnership, more than 50% of the general
partnership interests are, as of such
date, owned, controlled or held, by the
parent or one or more subsidiaries of
the parent. "WHOLLY OWNED SUBSIDIARY" shall
mean any such corporation,
partnership or other entity of which all
such securities or other ownership
interests, other than directors' qualifying
shares, are so owned or controlled.
Unless otherwise specified, a "Subsidiary"
shall mean a Subsidiary of the
Borrower.
"SUBSIDIARY GUARANTEE" shall mean a Guarantee Agreement
substantially in the form of Exhibit B
hereto between the Subsidiary Guarantors
and the Administrative Agent.
"SUBSIDIARY GUARANTORS" shall mean each of the Subsidiaries of
the Borrower which are, from time to time,
parties to the Subsidiary Guarantee.
"SWAP AGREEMENT" shall mean any agreement with respect to any
swap, forward, future or derivative
transaction or option or similar agreement
involving, or settled by reference to, one
or more rates, currencies,
commodities or other raw materials, equity
or debt instruments or securities, or
economic, financial or pricing indices or
measures of economic, financial or
CREDIT AGREEMENT
<PAGE>
23
pricing risk or value or any similar
transaction
or any combination of these
transactions; PROVIDED that no phantom stock or similar plan providing for
payments only on account of services
provided by current or
former directors,
officers, employees or consultants of the
Borrower or the Subsidiaries shall be
a Swap Agreement.
"SWINGLINE EXPOSURE" shall mean, at any time, the aggregate
principal amount of all Swingline Loans
outstanding at such time. The Swingline
Exposure of any Revolving Credit Lender at
any time shall be its Revolving
Credit Commitment Percentage of the total
Swingline Exposure at such time.
"SWINGLINE LOANS" shall mean the loans provided for by Section
2.11 hereof, which shall be Base Rate
Loans.
"SWINGLINE LENDER" shall mean JPMCB, in its capacity as lender
of Swingline Loans hereunder.
"TAXES" shall mean any and all present or future taxes,
levies, imposts, duties, deductions,
charges or withholdings imposed by any
Governmental Authority.
"TERM LOAN LENDERS" shall mean the Tranche A Term Loan Lenders
and the Tranche B Term Loan Lenders.
"TERM LOANS" shall mean the Tranche A Term Loans and the
Tranche B Term Loans.
"TOTAL DEBT" shall mean, at any date, all Indebtedness of the
Borrower and its Subsidiaries that would be
shown on a consolidated balance
sheet of the Borrower and its Subsidiaries
as at such date prepared in
accordance with GAAP, but excluding in any
event (i) income taxes payable or
deferred, (ii) liabilities under Plans and
liabilities of the type described in
Statement of Financial Accounting Standards
Nos. 87, 95, 106, 107, 109, 123, 125
and 133, and Interpretation No. 46 (FIN
46), of the Financial Accounting
Standards Board (or any accounting
pronouncements made by the Financial
Accounting Standards Board after the date
hereof that are similar in nature) to
the extent such liabilities may be treated
as an accrued expense or other
liability under GAAP and (iii) the face
amount of all outstanding letters of
credit (except to the extent of any
unreimbursed drawings thereunder).
"TOTAL DEBT SERVICE" shall mean, for any period, the sum of
the following for the Borrower and its
Subsidiaries for such period, determined
on a consolidated basis without duplication
in accordance with GAAP: (a)
Scheduled Payments and other regularly
scheduled payments for such period in
respect of principal of Indebtedness which
Indebtedness is included in Total
Debt; and (b) cash Interest Expense for
such period.
"TOTAL LEVERAGE RATIO" shall mean, at any date, the ratio of
(a) the aggregate principal amount of Total
Debt (calculated on a Pro Forma
Basis) of the Borrower and its Subsidiaries
outstanding as at such date to (b)
Cash Flow (calculated on a Pro Forma Basis)
for the period of four consecutive
complete fiscal quarters ended on, or most
recently ended prior to, such date.
CREIDT AGREEMENT
<PAGE>
24
"TRANCHE A TERM LOAN COMMITMENT" shall mean, with respect to
each Lender, the commitment, if any, of
such Lender to make a Tranche A Term
Loan hereunder on the Effective Date,
expressed as an amount representing the
maximum principal amount of the Tranche A
Term Loan to be made by such Lender
hereunder, as such commitment may be
reduced from time to time pursuant to
Section 2.03 hereof. The amount of each
Lender's Tranche A Term Loan Commitment
is set forth on Annex 1. The aggregate
amount of the Lenders' Tranche A Term
Loan Commitments is $275,000,000 as of the
Effective Date.
"TRANCHE A TERM LOAN LENDERS" shall mean (a) on the Effective
Date, the Lenders having Tranche A Term
Loan Commitments as set forth on Annex 1
hereto and (b) thereafter, the Lenders from
time to time holding Tranche A Term
Loans after giving effect to any
assignments thereof permitted by Section 11.06
hereof.
"TRANCHE A TERM LOANS" shall mean the loans provided for by
Section 2.01(a) hereof in respect of the
Tranche A Term Loan Commitments, which
may be Base Rate Loans and/or Eurodollar
Loans.
"TRANCHE B TERM LOAN COMMITMENT" shall mean, with respect to
each Lender, the commitment, if any, of
such Lender to make a Tranche B Term
Loan hereunder on the Effective Date,
expressed as an amount representing the
maximum principal amount of the Tranche B
Term Loan to be made by such Lender
hereunder, as such commitment may be
reduced from time to time pursuant to
Section 2.03 hereof. The amount of each
Lender's Tranche B Term Loan Commitment
is set forth on Annex 1. The aggregate
amount of the Lenders' Tranche B Term
Loan Commitments is $350,000,000 as of the
Effective Date.
"TRANCHE B TERM LOAN LENDERS" shall mean (a) on the Effective
Date, the Lenders having Tranche B Term
Loan Commitments as set forth on Annex 1
hereto and (b) thereafter, the Lenders from
time to time holding Tranche B Term
Loans after giving effect to any
assignments thereof permitted by Section 11.06
hereof.
"TRANCHE B TERM LOANS" shall mean the loans provided for by
Section 2.01(b) hereof in respect of the
Tranche B Term Loan Commitments, which
may be Base Rate Loans and/or Eurodollar
Loans.
"21ST CENTURY NEWSPAPERS" shall mean the business of 21st
Century Newspapers, Inc.
"21ST CENTURY NEWSPAPERS ACQUISITION" shall mean the
transactions contemplated by the 21st
Century Newspapers Acquisition Agreement
that are to take place either prior to or
substantially simultaneously with the
Effective Date.
"21ST CENTURY NEWSPAPERS ACQUISITION AGREEMENT" shall mean the
Agreement and Plan of Merger dated as of
July 2, 2004 by and among 21st Century
Newspapers, the Borrower and Wolverine
Acquisition Corp.
"TYPE" shall have the meaning assigned to such term in Section
1.03 hereof.
CREDIT AGREEMENT
<PAGE>
25
"WORKING CAPITAL" shall mean, at any time, the excess, if any,
of the current assets (net of cash and Cash
Equivalents and excluding accrued
interest thereon) of the Borrower and its
Subsidiaries over their current
liabilities (excluding (i) any such
liabilities in respect of the current
portion of long-term debt, (ii) liabilities
under Plans and liabilities of the
type described in Statement of Financial
Accounting Standards Nos. 87, 95, 106,
107, 109, 123, 125 and 133, and
Interpretation No. 46 (FIN 46), of the Financial
Accounting Standards Board (or any
accounting pronouncements made by the
Financial Accounting Standards Board after
the date hereof that are similar in
nature) to the extent such liabilities may
be treated as an accrued expense or
other liability under GAAP, (iii) accrued
Interest Expense and (iv) accrued
income taxes payable or deferred, each
determined on a consolidated basis
without duplication in accordance with
GAAP).
1.02 ACCOUNTING TERMS
AND DETERMINATIONS; FISCAL PERIODS.
(a) Except as otherwise expressly provided herein, all
accounting terms used herein shall be
interpreted, and all financial statements
and certificates and reports as to
financial matters required to be delivered to
the Administrative Agent and the Lenders
hereunder shall (unless otherwise
disclosed to the Lenders in writing at the
time of delivery thereof in the
manner described in subsection (b) below)
be prepared, in accordance with GAAP
applied on a basis consistent with those
used in the preparation of the latest
financial statements furnished to the
Lenders hereunder (which, prior to the
delivery of the first consolidated
financial statements under Section 8.01
hereof, shall mean the consolidated
financial statements of the Borrower and its
Subsidiaries as at December 31, 2003
referred to in Section 7.02(a) hereof). All
calculations made for the purposes of
determining compliance with this Agreement
shall (except as otherwise expressly
provided herein) be made by application of
GAAP applied on a basis consistent with
those used in the preparation of the
latest annual or quarterly consolidated
financial statements furnished to the
Lenders pursuant to Section 8.01(a) or (b)
hereof (or prior to the delivery of
the first financial statements under
Section 8.01 hereof, used in the
preparation of the consolidated financial
statements of the Borrower and its
Subsidiaries as at December 31, 2003
referred to in Section 7.02(a) hereof)
unless (i) the Borrower shall have objected
to determining such compliance on
such basis at the time of delivery of such
consolidated financial statements or
(ii) the Required Lenders shall have
objected to so determining such compliance
within 30 days after delivery to the
Lenders of such consolidated financial
statements, in either of which events such
calculations shall be made on a basis
consistent with those used in the
preparation of the latest consolidated
financial statements as to which such
objection shall not have been made (which,
if objection is made in respect of the
first consolidated financial statements
delivered under Section 8.01 hereof, shall
mean the consolidated financial
statements of the Borrower and its
Subsidiaries as at December 31, 2003 referred
to in Section 7.02(a) hereof).
(b) The Borrower shall deliver to the Lenders at the same time
as the delivery of any annual or quarterly
financial statement under Section
8.01(a) or (b) hereof, as the case may be,
(i) a description in reasonable
detail of any material variation between
the application of accounting
principles employed in the preparation of
such statement and the application of
accounting principles employed in the
preparation of the immediately preceding
annual or quarterly financial statements as
to which no objection has been made
in accordance with the last
CREDIT AGREEMENT
<PAGE>
26
sentence of paragraph (a) above and (ii)
reasonable estimates of the difference
between such statements arising as a
consequence thereof.
(c) The Borrower will not, nor will the Borrower permit any of
its Subsidiaries to, change its fiscal year
from a 52/53 week fiscal year,
except that the Borrower and its
Subsidiaries may utilize a calendar fiscal year
and calendar fiscal quarters by notifying
the Administrative Agent.
(d) If the rating system of Moody's or S&P shall change, or
if
either such rating agency shall cease to be
in the business of rating corporate
debt obligations, the Borrower and the
Administrative Agent shall agree in good
faith to reflect such changed rating system
or the non-availability of ratings
from such rating agency and, pending the
effectiveness of any such amendment,
determinations made by reference to such
rating shall be made by reference to
the rating most recently in effect prior to
such change or cessation.
1.03 CLASSES AND TYPES OF LOANS. Loans hereunder are
distinguished by "Class" and by "Type". The
Class of a Loan (or of a Commitment
to make a Loan) refers to whether such Loan
is a Revolving Credit Loan, a
Tranche A Term Loan, a Tranche B Term Loan,
an Incremental Revolving Credit
Loan, an Incremental Term Loan or a
Swingline Loan, each of which constitutes a
Class. The "Type" of a Loan refers to
whether such Loan is a Base Rate Loan or a
Eurodollar Loan, each of which constitutes
a Type. In addition, Incremental
Loans of any Class (and Incremental Loan
Commitments of any Class) are
distinguished by "Series". Loans may be
identified by Class and Type and, in the
case of Incremental Loans, Series.
1.04 TERMS GENERALLY. The definitions of terms herein shall
apply equally to the singular and plural
forms of the terms defined. Whenever
the context may require, any pronoun shall
include the corresponding masculine,
feminine and neuter forms. The words
"include", "includes" and "including" shall
be deemed to be followed by the phrase
"without limitation". The word "will"
shall be construed to have the same meaning
and effect as the word "shall".
Unless the context requires otherwise (a)
any definition of or reference to any
agreement, instrument or other document
herein shall be construed as referring
to such agreement, instrument or other
document as from time to time amended,
supplemented or otherwise modified (subject
to any restrictions on such
amendments, supplements or modifications
set forth herein), (b) any reference
herein to any Person shall be construed to
include such Person's successors and
assigns, (c) the words "herein", "hereof"
and "hereunder", and words of similar
import, shall be construed to refer to this
Agreement in its entirety and not to
any particular provision hereof, (d) all
references herein to Sections, Annexes,
Exhibits and Schedules shall be construed
to refer to Sections of, and Annexes,
Exhibits and Schedules to, this Agreement
and (e) the words "asset" and
"property" shall be construed to have the
same meaning and effect and to refer
to any and all tangible and intangible
assets and properties, including cash,
securities, accounts and contract
rights.
CREDIT AGREEMENT
<PAGE>
27
Section 2.
COMMITMENTS.
2.01 LOANS.
(a) TRANCHE A TERM LOANS. Subject to the terms and conditions
set forth herein, each Tranche A Term Loan
Lender agrees to make a Tranche A
Term Loan to the Borrower on the Effective
Date in a principal amount equal to
its Tranche A Term Loan Commitment. Amounts
prepaid or repaid in respect of any
Tranche A Term Loans may not be
reborrowed.
(b) TRANCHE B TERM LOANS. Subject to the terms and conditions
set forth herein, each Tranche B Term Loan
Lender agrees to make a Tranche B
Term Loan to the Borrower on the Effective
Date in a principal amount equal to
its Tranche B Term Loan Commitment. Amounts
prepaid or repaid in respect of any
Tranche B Term Loans may not be
reborrowed.
(c) REVOLVING CREDIT LOANS. Subject to the terms and
conditions set forth herein, each Revolving
Credit Lender agrees to make
Revolving Credit Loans to the Borrower from
time to time during the Revolving
Credit Availability Period in an aggregate
principal amount that will not result
in (i) such Lender's Revolving Credit
Exposure exceeding such Lender's Revolving
Credit Commitment or (ii) the total
Revolving Credit Exposures, together with
the aggregate amount of Swingline Exposure,
exceeding the total Revolving Credit
Commitments. Within the foregoing limits
and subject to the terms and conditions
set forth herein, the Borrower may borrow,
prepay and reborrow Revolving Credit
Loans.
(d) INCREMENTAL LOANS. The Borrower and one or more of the
Lenders (or any other Person which shall
become a Lender with the consent of the
Administrative Agent (such consent not to
be unreasonably withheld) for the
purpose of providing an Incremental Loan
Commitment) may, at any time and from
time to time during the term of this
Agreement, agree that such Lender shall
become an Incremental Lender with an
Incremental Loan Commitment by executing
and delivering to the Administrative Agent
an Incremental Loan Amendment (in
form reasonably satisfactory to the
Administrative Agent), specifying (i)
whether such Incremental Loan Commitment
shall be comprised of a commitment to
make revolving loans (each an "INCREMENTAL
REVOLVING CREDIT LOAN") or term loans
(each an "INCREMENTAL TERM LOAN"), (ii) the
Type and amount of such Incremental
Loan Commitment of such Lender, (iii) with
respect to an Incremental Revolving
Credit Commitment, the period of
availability thereof and the Incremental
Revolving Credit Commitment Termination
Date therefor, (iv) with respect to an
Incremental Term Loan Commitment, the
date(s) on which such Incremental Term
Loans shall be available to be made, the
Incremental Term Loan Maturity Date
therefor and the Incremental Term Loan
Principal Payment Dates thereof (if any),
(v) the applicable interest rate margin
that will apply to Incremental Loans
made under such Incremental Loan
Commitment, and (vi) the rate of the commitment
fee, if any, payable by the Borrower in
respect of such Incremental Loan
Commitment, and otherwise duly completed.
Nothing in this Agreement shall be
construed to obligate any Lender to provide
any Incremental Loan Commitment. The
Incremental Loans to be made pursuant to
any such agreement between the Borrower
and one or more Persons in response to any
such request by the Borrower shall
each be deemed to be a separate "SERIES" of
Incremental Loans for all purposes
of this Agreement, and in any case an
Incremental Revolving Credit Commitment
and an Incremental Term Loan Commitment
provided pursuant to the same
CREDIT AGREEMENT
<PAGE>
28
Incremental Loan Amendment shall be deemed
to be separate Series of Incremental
Loan Commitments.
Anything herein to the contrary notwithstanding, the following
additional provisions shall be applicable
to the Incremental Loan Commitments
and Incremental Loans:
(i) the Incremental Revolving Credit Commitment Termination
Date of Incremental Revolving Credit Commitments of any Series and
the
Incremental Term Loan Maturity Date of Incremental Term Loans of
any
Series shall not be earlier than the Tranche B Term Loan Maturity
Date,
and
(ii) the Average Life to Maturity of the Incremental Term
Loans of any Series shall not be shorter than the remaining
Average
Life to Maturity of the Tranche A Term Loans.
Following execution and delivery by the Borrower, one or more
Incremental Lenders and the Administrative
Agent as provided above of an
Incremental Loan Amendment then, subject to
the terms and conditions set forth
herein:
(x) if such Incremental Loans are to be Incremental Revolving
Credit Loans, each Incremental Lender of such Series agrees to
make
Incremental Revolving Credit Loans of such Series to the Borrower
from
time to time during the availability period for such Loans set
forth in
such Incremental Loan Amendment, in an aggregate principal amount
that
will not result in such Lender's Incremental Revolving Credit Loans
of
such Series exceeding such Lender's Incremental Revolving
Credit
Commitment of such Series; within the foregoing limits and subject
to
the terms and conditions set forth herein and in such Incremental
Loan
Amendment, the Borrower may borrow, repay and reborrow
Incremental
Revolving Credit Loans of such Series; and
(y) if such Incremental Loans are to be Incremental Term
Loans, each Incremental Lender of such Series agrees to make
Incremental Term Loans of such Series to the Borrower from time to
time
during the availability period for such Loans set forth in such
Incremental Loan Amendment, in a principal amount up to but not
exceeding such Lender's Incremental Term Loan Commitment of
such
Series; amounts prepaid in respect of Incremental Term Loans may
not be
reborrowed.
Proceeds of Incremental Loans shall be
available only for any use permitted
under the applicable provisions of Section
8.16.
(e) LIMIT ON EURODOLLAR LOANS. Unless otherwise agreed by the
Administrative Agent, any Loans made on the
Effective Date shall be Base Rate
Loans. No more than sixteen separate
Interest Periods in respect of Eurodollar
Loans of any Class may be outstanding at
any one time.
(f) CONVERSION AND CONTINUATIONS. From and after the Effective
Date, (i) the Borrower (as provided in
Section 2.08(a) hereof) may Convert Loans
of any Class of one Type into Loans of the
same Class of another Type (as
provided in Section 2.08(a) hereof) or
Continue Loans of any Class of one Type
as Loans of the same Class and Type (as
provided in Section 2.08(a) hereof).
CREDIT AGREEMENT
<PAGE>
29
2.02 BORROWINGS. The Borrower shall give the Administrative
Agent (which shall promptly notify the
Lenders) notice of each borrowing
hereunder as provided in Section 4.05
hereof. Not later than 12:00 noon New York
time on the date specified for each
borrowing hereunder, each Lender shall make
available the amount of the Loan to be made
by it on such date to the
Administrative Agent, at an account
designated by the Administrative Agent, in
immediately available funds, for account of
the Borrower. The amount so received
by the Administrative Agent shall, subject
to the terms and conditions of this
Agreement, be made available to the
Borrower by depositing the same, in
immediately available funds, in an account
of the Borrower (designated by the
Borrower) maintained with JPMCB, PROVIDED
that any Revolving Credit Loan that is
a Base Rate Loan and is made to finance the
reimbursement of an LC Disbursement
as provided in Section 2.10(f) hereof shall
be remitted by the Administrative
Agent to the relevant Issuing Lender. This
Section 2.02 shall not apply to
Swingline Loans made by the Swingline
Lender, as to which Section 2.11(b) hereof
shall apply.
2.03 CHANGES OF
COMMITMENTS.
(a) VOLUNTARY. The Borrower shall have the right to terminate
or reduce the aggregate amount of the Revolving Credit Commitments
at
any time or from time to time prior to the Revolving Credit
Commitment
Termination Date and shall have the right to terminate or reduce
the
aggregate amount of the Incremental Loan Commitments of any Series
at
any time or from time to time prior to the date such Incremental
Loan
Commitment is scheduled to terminate as set forth in the
applicable
Incremental Loan Amendment for such Series; PROVIDED that (i)
the
Borrower shall give notice of each such termination or reduction
as
provided in Section 4.05 hereof and (ii) each partial reduction
shall
be in an aggregate amount at least equal to $1,000,000.
(b) REDUCTION OF REVOLVING CREDIT COMMITMENTS.
(i) Unless previously terminated, the Revolving Credit
Commitments shall automatically terminate at the opening of
business on
the Revolving Credit Commitment Termination Date.
(ii) The Revolving Credit Commitments shall automatically
reduce on each Revolving Credit Commitment Reduction Date set forth
in
column (A) below to the amount set forth in column (B) below
opposite
such Revolving Credit Commitment Reduction Date:
(A)
(B)
Revolving Credit
Revolving Credit
Commitment Reduction
Commitments Reduced
Date Falling on or
to the Following
NEAREST TO:
AMOUNTS:
December 31, 2009
$419,687,500
March 31, 2010
$414,375,000
June 30, 2010
$409,062,500
CREDIT AGREEMENT
<PAGE>
30
September 30, 2010
$403,750,000
December 31, 2010
$387,812,500
March 31, 2011
$371,875,000
June 30, 2011
$355,937,500
September 30, 2011
$340,000,000
November 12, 2011
0
PROVIDED that, if at the opening of
business on any such Revolving Credit
Commitment Reduction Date the amount of the
Revolving Credit Commitments then in
effect is equal to or less than the
respective amount set forth in column (B)
above opposite such Revolving Credit
Commitment Reduction Date, no further
reductions in the Revolving Credit
Commitments as of such date shall be required
pursuant to this Section 2.03(b)(ii).
(c) TERMINATION OF TERM LOAN COMMITMENTS AND INCREMENTAL LOAN
COMMITMENTS. The Term Loan Commitments of
each Class shall terminate after the
borrowing of Loans of such Class on the
Effective Date. The Incremental Loan
Commitments of each Series shall terminate
on the date specified for such
termination in the applicable Incremental
Loan Amendment.
(d) TERMINATION AND REDUCTIONS PERMANENT. Commitments once
terminated or reduced may not be
reinstated.
2.04 COMMITMENT
FEES.
(a) The Borrower shall pay to the Administrative Agent for
account of each Revolving Credit Lender a
commitment fee on the daily average
unused amount of such Lender's Revolving
Credit Commitment, for the period from
and including the Effective Date to but
excluding the earlier of the date such
Commitment is terminated or expires, at a
rate per annum equal to (i) for any
day during the period commencing on the
Effective Date and ending on the next
Business Day after the date the Borrower
delivers to the Administrative Agent
the consolidated financial statements of
the Borrower for the fiscal quarter
ending September 30, 2004 pursuant to
Section 8.01(a) hereof and thereafter for
any day on which the Total Leverage Ratio
is equal to or greater than 4.50 to 1,
0.375% and (ii) otherwise, 0.25%. For
purposes of computing commitment fees
under this paragraph (a), (1) the Revolving
Credit Commitment of a Lender (other
than a Lender that is also the Swingline
Lender) shall be deemed to be used to
the extent of the outstanding Revolving
Credit Loans and LC Exposure of such
Lender (and the Swingline Exposure of such
Lender shall be disregarded for such
purpose), (2) the Revolving Credit
Commitment of a Lender that is also the
Swingline Lender shall be deemed to be used
to the extent of the outstanding
Revolving Credit Loans, LC Exposure and
Swingline Exposure of such Lender and
(3) any change in the commitment fee rate
as a result of a change in the Total
Leverage Ratio shall be effective as of the
next Business Day following the date
the relevant consolidated financial
statements of the Borrower are delivered to
the Administrative Agent pursuant to said
Section 8.01(a) or 8.01(b) hereof,
PROVIDED that in the event that the
Borrower shall fail to deliver to the
Administrative Agent any consolidated
financial statements by the respective
date required pursuant to said Section
8.01(a) or 8.01(b), the commitment fee
rate
CREDIT AGREEMENT
<PAGE>
31
shall be 0.375% per annum for each day
during the period commencing on the date
said financial statements were so required
to be delivered and ending on the
next Business Day following the date such
financial statements are in fact
delivered to the Administrative Agent;
PROVIDED FURTHER that, at the option of
the Borrower, the commitment fee shall be
subject to adjustment prior to the
delivery of any consolidated financial
statements pursuant to Section 8.01(a) or
8.01(b) hereof effective as of the next
Business Day following the date (the
"COMMITMENT FEE ADJUSTMENT EFFECTIVE DATE")
on which the Administrative Agent
shall have received a certificate of a
Senior Officer (in form and detail
satisfactory to the Administrative Agent)
setting forth the Total Leverage Ratio
as at the last day of the fiscal period in
respect of which such consolidated
financial statements are required to be
delivered and annexing thereto
calculations of the Total Leverage Ratio,
except that in the event that the
Total Leverage Ratio determined on the
basis of such consolidated financial
statements when delivered pursuant to
Section 8.01(a) or 8.01(b) hereof shall
indicate a higher commitment fee rate than
set forth in such certificate, the
commitment fee shall automatically be
adjusted retroactively to the Commitment
Fee Adjustment Effective Date to such
higher rate.
(b) The Borrower shall pay to the Administrative Agent for
account of each Lender having an
Incremental Revolving Credit Commitment a
commitment fee at a rate per annum agreed
to between the Borrower and the
relevant Incremental Lender or Lenders in
the applicable Incremental Loan
Amendment.
(c) Commitment fees accrued through and including the last day
of each calendar quarter shall be payable
in arrears on the third Business Day
following such last day, commencing with
the first such day after the Effective
Date, and on the date the applicable
Commitments are terminated or expire.
2.05 LENDING OFFICES. The Loans of each Type made by each
Lender shall be made and maintained at such
Lender's Applicable Lending Office
for Loans of such Type.
2.06 SEVERAL OBLIGATIONS; REMEDIES INDEPENDENT. Immediately
following the effectiveness of this
Agreement, the failure of any Lender to make
any Loan to be made by it on the date
specified therefor shall not relieve any
other Lender of its obligation to make its
Loan on such date, but neither any
Lender nor the Administrative Agent shall
be responsible for the failure of any
other Lender to make a Loan to be made by
such other Lender. The amounts payable
by the Borrower at any time hereunder and
under the Notes to each Lender shall
be, as between the Borrower on the one hand
and such Lender on the other hand, a
separate and independent debt and each
Lender shall be entitled to protect and
enforce its rights arising out of this
Agreement and the Notes, and it shall not
be necessary for any other Lender or the
Administrative Agent to consent to, or
be joined as an additional party in, any
proceedings for such purposes; provided
that this Section 2.06 shall not be
construed to permit acceleration of the
Loans or cancellation of the Commitments by
any Lender except in accordance with
Section 9 hereof or as otherwise expressly
permitted by the terms hereof.
2.07 EVIDENCE OF
DEBT.
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing
the indebtedness of the Borrower to
such Lender resulting from each Loan
CREDIT AGREEMENT
<PAGE>
32
made or continued hereunder by such Lender,
including the amounts of principal
and interest payable and paid to such
Lender from time to time hereunder.
(b) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan
made or continued hereunder, the
Class and Type thereof and the Interest
Period applicable thereto, (ii) the
amount of any principal or interest due and
payable or to become due and payable
from the Borrower to each Lender hereunder
and (iii) the amount of any sum
received by the Administrative Agent
hereunder for the account of the Lenders
and each Lender's share thereof.
(c) The entries made in the accounts maintained pursuant to
paragraph (a) or (b) of this Section 2.07
shall be PRIMA FACIE evidence of the
existence and amounts of the obligations
recorded therein; PROVIDED that the
failure of any Lender or the Administrative
Agent to maintain such accounts or
any error therein shall not in any manner
affect the obligation of the Borrower
to repay the Loans in accordance with the
terms of this Agreement.
(d) Any Lender may request that Loans made or continued by it
hereunder be evidenced by a promissory
note(s). In such event, the Borrower, at
its own expense, shall prepare, execute and
deliver to such Lender a promissory
note(s) payable to the order of such Lender
(or, if requested by such Lender, to
such Lender and its registered assigns) and
substantially in the form of Exhibit
E-1, E-2, E-3, E-4 or E-5 hereto, as
appropriate, and such note(s) shall be
evidence of such Loans (and all amounts
payable in respect thereof).
2.08 CONVERSION OR
CONTINUATION OF LOANS; OPTIONAL
PREPAYMENTS.
(a) CONVERSION OR CONTINUATION. Subject to Section 4.04
hereof, the Borrower shall have the right
to Convert Loans of one Type into
Loans of the other Type or to Continue
Loans of one Type as Loans of the same
Type, at any time or from time to time;
PROVIDED that: (i) the Borrower shall
give the Administrative Agent notice of
each such Conversion or Continuation as
provided in Section 4.05 hereof; (ii)
Eurodollar Loans may be Converted only on
the last day of an Interest Period for such
Loans and (iii) Swingline Loans may
not be Converted or Continued.
(b) OPTIONAL PREPAYMENTS. Subject to Section 4.04 hereof, the
Borrower shall have the right to prepay
Loans of one or more Classes or Series
in whole or in part without premium or
penalty at any time or from time to time;
PROVIDED that: (i) the Borrower shall give
the Administrative Agent notice of
each such prepayment as provided in Section
4.05 hereof (and, upon the date
specified in any such notice of prepayment,
the amount to be prepaid shall
become due and payable hereunder); (ii)
Eurodollar Loans may be prepaid at any
time and from time to time, PROVIDED that
the Borrower pays any amounts owing
under Section 5.05 hereof in the event of
any such prepayment on a date other
than the last day of an Interest Period for
such Loans; (iii) at the option of
the Borrower, each such prepayment of any
Tranche A Term Loans, Tranche B Term
Loans or Incremental Term Loans shall be
applied first to up to the next four
installments of principal of such Loans in
direct order of maturity; and (iv) to
the extent of any amounts remaining after
the prior application (if any) in
accordance with clause (iii) above, each
such prepayment of any Tranche A Term
Loans, Tranche B Term Loans or Incremental
Term
CREDIT AGREEMENT
<PAGE>
33
Loans shall be applied ratably to the
remaining installments of principal of
such Loans then outstanding.
2.09 MANDATORY
PREPAYMENTS.
(a) REVOLVING CREDIT COMMITMENT REDUCTIONS. If, after giving
effect to any termination or reduction of the Revolving Credit
Commitments pursuant to Section 2.03 hereof, the aggregate
Revolving
Credit Exposures exceeds the aggregate amount of the Revolving
Credit
Commitments as then in effect, the Borrower shall, on the date of
such
termination or reduction, apply the aggregate amount of such
excess,
first, to prepay Swingline Loans, second, to prepay Revolving
Credit
Loans and third, to provide cover for LC Exposure as specified
in
Section 2.10(k).
(b) DISPOSITIONS AND CASUALTY EVENTS.
(i) If, at any time or from time to time, the Borrower or any
of its Subsidiaries shall receive Net Proceeds from any
Disposition
(other than any Disposition permitted under clauses (i), (ii),
(iv),
(v), (vii) or (viii) of Section 8.05(c) hereof), the Borrower
shall,
within 365 days after receipt of such Net Proceeds (subject to
the
proviso below, if such proceeds have not been applied by such
365th
day, then on such 365th day) unless the Borrower shall have used
all or
a portion of such proceeds for a Permitted Usage, apply or cause to
be
applied to the prepayment of principal of the Term Loans and
Incremental Term Loans in an amount equal to the lesser of (i)
the
amount of such Net Proceeds or (ii) the amount thereof remaining
after
application to such Permitted Usage, in each case in the manner and
to
the extent specified in paragraph (d) of this Section 2.09;
PROVIDED
that if on
such 365th day such proceeds have not been so used but the
Borrower or any of its Subsidiaries shall have entered into an
agreement with respect to any Permitted Usage, then unless within
180
days thereafter the Borrower or such Subsidiary shall use, or
be
obligated by such agreement to use, all or a portion of such
Net
Proceeds for such Permitted Usage (but not in excess of the
aggregate
amount of all cash consideration and all cash costs and expenses
in
respect of such Permitted Usage), any portion of such Net Proceeds
not
so used (or obligated to be so used) shall be applied to prepay
the
Term Loans and the Incremental Term Loans in the manner and to
the
extent specified
in paragraph (d) of this Section 2.09.
(ii) Within ten Business Days after receipt of any proceeds by
the Borrower or any of its Subsidiaries in respect of any
Casualty
Event affecting any Property of the Borrower or any of its
Subsidiaries
(except to the extent such proceeds have been or are to be applied
(or
are committed to be applied) within 365 days after the date of
receipt
of such proceeds towards the repair, reconstruction or replacement
of
such Property or for any other Permitted Usage, and if such
proceeds
have not been so utilized by such 365th day, then on such 365th
day)
the Borrower shall apply, or cause to be applied, an amount equal
to
the Net Proceeds of such Casualty Event or such unutilized
portion
thereof to prepay principal of the Term Loans and the Incremental
Term
Loans, in each case in the manner and to the extent specified
in
paragraph (d) of this Section 2.09; PROVIDED that if on such 365th
day
such proceeds have not been so used but the Borrower or any of
its
Subsidiaries shall have entered into an agreement with respect to
any
Permitted Usage,
CREDIT AGREEMENT
<PAGE>
34
then unless within 180 days thereafter the Borrower or such
Subsidiary
shall use, or be obligated by such agreement to use, all or a
portion
of such Net Proceeds for such Permitted Usage (but not in excess
of
the aggregate amount of all cash consideration and all cash costs
and
expenses in respect of such Permitted Usage), any portion of such
Net
Proceeds not so used (or obligated to be so used) shall be applied
to
prepay the Term Loans and the Incremental Term Loans in the manner
and
to the extent specified in paragraph (d) of this Section 2.09.
Notwithstanding the foregoing clauses (i)
and (ii), the Borrower shall have no
obligation to make any such application
under this Section 2.09(b) in respect of
the Net Proceeds received in respect of any
Disposition or Casualty Event unless
and until the aggregate amount of Net
Proceeds received in respect of all
Dispositions and Casualty Events exceeds
$75,000,000 for any fiscal year, in
which case only an amount equal to such
excess shall be so applied.
(c) EXCESS CASH FLOW. Not later than the date 120 days after
the end of each fiscal year of the Borrower
(commencing with the fiscal year
ending on December 31, 2007) as at the end
of which the Total Leverage Ratio is
greater than 5.00 to 1, the Borrower shall
prepay the Term Loans and the
Incremental Term Loans in an aggregate
amount equal to the excess (if any) of
(i) the ECF Percentage of Excess Cash Flow
for such fiscal year over (ii)
$50,000,000, such prepayment to be effected
in each case in the manner and to
the extent specified in paragraph (d) of
this Section 2.09.
(d)
APPLICATION OF PAYMENTS. Prepayments of Loans made
pursuant to paragraphs (b)(i), (b)(ii) and
(c) of this Section 2.09 shall be
applied ratably to the Term Loans and
Incremental Term Loans in accordance with
the respective aggregate principal amounts
of such Loans and, with respect to
such Incremental Term Loans, ratably in
accordance with the aggregate principal
amounts of such Incremental Loans of each
Series, and with respect to the Loans
of each such Class and Series so prepaid,
the amounts shall be applied, first,
to the next four quarterly installments of
such Loans in direct order of
maturity and, thereafter, ratably to the
remaining principal installments
thereof.
(e) NOTICE; DELIVERY OF CERTIFICATE. The Borrower shall give
notice to the Administrative Agent of each
prepayment pursuant to this Section
2.09 in the same manner and at the same
time as is required for any optional
prepayment pursuant to Section 2.08 hereof.
At the time it makes any prepayment
of the Loans as required by paragraph (b)
above, the Borrower will deliver to
the Administrative Agent a certificate of a
Senior Officer, in form and detail
satisfactory to the Administrative Agent,
containing calculations of Net
Proceeds or in respect of the related
Disposition or Casualty Event, as the case
may be, and any deductions therefrom in
respect of amounts that are not required
to be prepaid pursuant to this Section
2.09, and specifying the amount of each
such prepayment.
2.10 LETTERS OF
CREDIT.
(a) GENERAL. Subject to the terms and conditions set forth
herein, in addition to the Loans provided
for in Section 2.01 hereof, the
Borrower may request any Issuing Lender to
issue, at any time and from time to
time during the Revolving Credit
Availability Period, Letters of Credit for its
own account in such form as is acceptable
to such Issuing Lender in its
CREDIT AGREEMENT
<PAGE>
35
reasonable determination. Letters of Credit
issued hereunder shall constitute
utilization of the Revolving Credit
Commitments.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL OR EXTENSION. To
request the issuance of a Letter of Credit
(or the amendment, renewal or
extension of an outstanding Letter of
Credit), the Borrower shall hand deliver
or telecopy (or transmit by electronic
communication, if arrangements for doing
so have been approved by the relevant
Issuing Lender) to the relevant Issuing
Lender and the Administrative Agent
(reasonably in advance of the requested date
of issuance, amendment, renewal or
extension) a notice requesting the issuance
of a Letter of Credit, or identifying the
Letter of Credit to be amended,
renewed or extended, and specifying the
date of issuance, amendment, renewal or
extension (which shall be a Business Day),
the date on which such Letter of
Credit is to expire (which shall comply
with paragraph (d) of this Section
2.10), the amount of such Letter of Credit,
the name and address of the
beneficiary thereof and such other
information as shall be necessary to prepare,
amend, renew or extend such Letter of
Credit. If requested by an Issuing Lender,
the Borrower also shall submit a letter of
credit application on such Issuing
Lender's standard form in connection with
any request for a Letter of Credit. In
the event of any inconsistency between the
terms and conditions of this
Agreement and the terms and conditions of
any form of letter of credit
application or other agreement submitted by
the Borrower to, or entered into by
the Borrower with, any Issuing Lender
relating to any Letter of Credit, the
terms and conditions of this Agreement
shall control.
(c) LIMITATIONS ON AMOUNTS. A Letter of Credit shall be
issued, amended, renewed or extended only
if (and upon issuance, amendment,
renewal or extension of each Letter of
Credit the Borrower shall be deemed to
represent and warrant that), after giving
effect to such issuance, amendment,
renewal or extension (i) the aggregate LC
Exposure of the Issuing Lenders
(determined for these purposes without
giving effect to the participations
therein of the Revolving Credit Lenders
pursuant to paragraph (e) of this
Section 2.10) shall not exceed $40,000,000
(MINUS the aggregate outstanding
principal or face amount of the obligations
in respect of letters of credit or
similar instruments issued under Section
8.07(e) hereof) and (ii) the aggregate
Revolving Credit Exposures of the Revolving
Credit Lenders shall not exceed the
aggregate amount of the Revolving Credit
Commitments of the Revolving Credit
Lenders.
(d) EXPIRATION DATE. Each Letter of Credit shall expire at or
prior to the close of business on the
earlier of (i) the date 12 months after
the date of the issuance of such Letter of
Credit (or, in the case of any
renewal or extension thereof including any
"evergreen" Letter of Credit that
provides for such renewal or extension, 12
months after the then-current
expiration date of such Letter of Credit,
so long as such renewal or extension
occurs within three months of such
then-current expiration date) and (ii) the
date that is five Business Days prior to
the Revolving Credit Commitment
Termination Date.
(e) PARTICIPATIONS. By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit
increasing the amount thereof) by any Issuing
Lender, and without any further action on
the part of such Issuing Lender or the
Lenders, such Issuing Lender hereby grants
to each Revolving Credit Lender, and
each Revolving Credit Lender hereby
acquires from such Issuing Lender, a
participation in such Letter of Credit
equal to such Revolving Credit Lender's
Revolving Credit Commitment Percentage of
the aggregate amount available to be
drawn under such Letter of Credit. Each
Revolving Credit Lender acknowledges and
agrees that its obligation
CREDIT AGREEMENT
<PAGE>
36
to acquire participations pursuant to this
paragraph in respect of Letters of
Credit is absolute and unconditional and
shall not be affected by any
circumstance whatsoever, including any
amendment, renewal or extension of any
Letter of Credit or the occurrence and
continuance of a Default or reduction or
termination of the Commitments, and that
each such payment shall be made without
any offset, abatement, withholding or
reduction whatsoever.
In consideration and in furtherance of the foregoing, each
Revolving Credit Lender hereby absolutely
and unconditionally agrees to pay to
the Administrative Agent, for the account
of each Issuing Lender, such Revolving
Credit Lender's Revolving Credit Commitment
Percentage of each LC Disbursement
made by such Issuing Lender promptly upon
the request of such Issuing Lender at
any time from the time of such LC
Disbursement until such LC Disbursement is
reimbursed by the Borrower or at any time
after any reimbursement payment is
required to be refunded to the Borrower for
any reason. Each such payment shall
be made in the same manner as provided in
Section 2.02 hereof with respect to
Loans made by such Revolving Credit Lender,
and the Administrative Agent shall
promptly pay to such Issuing Lender the
amounts so received by it from the
Revolving Credit Lenders. Promptly
following receipt by the Administrative Agent
of any payment from the Borrower pursuant
to the next following paragraph, the
Administrative Agent shall distribute such
payment to the relevant Issuing
Lender or, to the extent that the Revolving
Credit Lenders have made payments
pursuant to this paragraph to reimburse
such Issuing Lender, then to such
Revolving Credit Lenders and such Issuing
Lender as their interests may appear.
Any payment made by a Revolving Credit
Lender pursuant to this paragraph to
reimburse an Issuing Lender for any LC
Disbursement shall not constitute a Loan
and shall not relieve the Borrower of its
obligation to reimburse such LC
Disbursement.
(f) REIMBURSEMENT. If an Issuing Lender shall make any LC
Disbursement in respect of a Letter of
Credit, the Borrower shall reimburse such
Issuing Lender in respect of such LC
Disbursement by paying to the
Administrative Agent an amount equal to
such LC Disbursement not later than
10:00 a.m. New York time on (i) the
Business Day immediately following the
Business Day that the Borrower receives
notice of such LC Disbursement, if such
notice is received prior to 10:00 a.m. New
York time or (ii) the second Business
Day immediately following the day that the
Borrower receives such notice, if
such notice is not received prior to such
time, PROVIDED that the Borrower may,
subject to the conditions to borrowing set
forth herein, request in accordance
herewith that such payment be financed with
the proceeds of a Revolving Credit
Loan or Swingline Loan in an equivalent
amount and, to the extent so financed,
the Borrower's obligation to make such
payment shall be discharged and replaced
by the resulting Revolving Credit Loan or
Swingline Loan; provided that any such
Revolving Credit Loan shall be a Base Rate
Loan. If the Borrower fails to make
such payment when due, the Administrative
Agent shall notify each Revolving
Credit Lender of the applicable LC
Disbursement, the payment then due from the
Borrower in respect thereof and such
Revolving Credit Lender's Revolving Credit
Commitment Percentage thereof.
(g) OBLIGATIONS ABSOLUTE. The Borrower's obligation to
reimburse LC Disbursements as provided in
paragraph (e) of this Section 2.10
shall be absolute, unconditional and
irrevocable, and shall be performed
strictly in accordance with the terms of
this Agreement under any and all
circumstances whatsoever and irrespective
of (i) any lack of validity or
enforceability of any Letter of Credit, or
any term or provision therein, (ii)
any draft
CREDIT AGREEMENT
<PAGE>
37
or other document presented under a Letter
of Credit proving to be forged,
fraudulent or invalid in any respect or any
statement therein being untrue or
inaccurate in any respect, (iii) payment by
an Issuing Lender under a Letter of
Credit against presentation of a draft or
other document that does not comply
strictly with the terms of such Letter of
Credit, and (iv) any other event or
circumstance whatsoever, whether or not
similar to any of the foregoing, that
might, but for the provisions of this
Section 2.10, constitute a legal or
equitable discharge of the Borrower's
obligations hereunder.
Neither the Administrative Agent, the Lenders nor any Issuing
Lender, nor any of their respective
directors, officers, employees, attorneys or
agents, shall have any liability or
responsibility by reason of or in connection
with the issuance or transfer of any Letter
of Credit by such Issuing Lender or
any payment or failure to make any payment
thereunder (irrespective of any of
the circumstances referred to in the
preceding sentence), or any error,
omission, interruption, loss or delay in
transmission or delivery of any draft,
notice or other communication under or
relating to any Letter of Credit
(including any document required to make a
drawing thereunder), any error in
interpretation of technical terms or any
consequence arising from causes beyond
the control of such Issuing Lender;
PROVIDED that the foregoing shall not be
construed to excuse any Issuing Lender from
liability to the Borrower to the
extent of any direct damages (as opposed to
consequential damages, claims in
respect of which are hereby waived by the
Borrower to the extent permitted by
applicable law) suffered by the Borrower
that are caused by such Issuing
Lender's gross negligence or willful
misconduct when determining whether drafts
and other documents presented under a
Letter of Credit comply with the terms
thereof. The parties hereto expressly agree
that:
(i) each Issuing Lender may accept documents that
appear on their face to be in substantial compliance with the terms
of
a Letter of Credit without responsibility for further
investigation,
regardless of any notice or information to the contrary, and may
make
payment upon presentation of documents that appear on their face to
be
in substantial compliance with the terms of such Letter of
Credit;
(ii) each Issuing Lender shall have the right, in its
sole discretion, to decline to accept such documents and to make
such
payment if such documents are not in strict compliance with the
terms
of such Letter of Credit; and
(iii) this sentence shall establish the standard of
care to be exercised by each Issuing Lender when determining
whether
drafts and other documents presented under a Letter of Credit
comply
with the terms thereof
(and the parties hereto hereby waive, to the
extent permitted by applicable law, any standard of care
inconsistent
with the foregoing).
(h) DISBURSEMENT PROCEDURES. Each Issuing Lender shall, within
a reasonable time following its receipt
thereof, examine all documents
purporting to represent a demand for
payment under a Letter of Credit. Such
Issuing Lender shall promptly after such
examination notify the Administrative
Agent and the Borrower by telephone
(confirmed by telecopy) of such demand for
payment and whether such Issuing Lender has
made or will make an LC Disbursement
thereunder; PROVIDED that any failure to
give or delay in giving such notice
CREDIT AGREEMENT
<PAGE>
38
shall not relieve the Borrower of its
obligation to reimburse such Issuing
Lender and the Revolving Credit Lenders
with respect to any such LC
Disbursement.
(i) INTERIM INTEREST. If any Issuing Lender shall make any LC
Disbursement, then, unless the Borrower
shall reimburse such LC Disbursement in
full on the date such LC Disbursement is
made, the unpaid amount thereof shall
bear interest, for each day from and
including the date such LC Disbursement is
made to but excluding the date that the
Borrower reimburses such LC
Disbursement, at the rate per annum then
applicable to Base Rate Loans; PROVIDED
that, if the Borrower fails to reimburse
such LC Disbursement when due pursuant
to paragraph (e) of this Section 2.10, then
clause (x) of the second sentence of
Section 3.02 hereof shall apply. Interest
accrued pursuant to this paragraph
shall be for the account of such Issuing
Lender, except that interest accrued on
and after the date of payment by any
Revolving Credit Lender pursuant to
paragraph (f) of this Section 2.10 to
reimburse such Issuing Lender shall be for
the account of such Revolving Credit Lender
to the extent of such payment.
(j) REPLACEMENT OF AN ISSUING LENDER. Any Issuing Lender may
be replaced at any time by written
agreement between the Borrower, the
Administrative Agent, the replaced Issuing
Lender and the successor Issuing
Lender (which shall be selected from among
the Lenders) (such agreement not to
be unreasonably withheld by the
Administrative Agent). The Administrative Agent
shall notify the Lenders of any such
replacement of an Issuing Lender. At the
time any such replacement shall become
effective, the Borrower shall pay all
unpaid fees accrued for the account of the
replaced Issuing Lender pursuant to
paragraph (l) of this Section 2.10. From
and after the effective date of any
such replacement, (i) the successor Issuing
Lender shall have all the rights and
obligations of the replaced Issuing Lender
under this Agreement with respect to
Letters of Credit to be issued thereafter
and (ii) references herein to the term
"Issuing Lender" shall be deemed to refer
to such successor or to any previous
Issuing Lender, or to such successor and
all previous Issuing Lenders, as the
context shall require. After the
replacement of an Issuing Lender hereunder, the
replaced Issuing Lender shall remain a
party hereto and shall continue to have
all the rights and obligations of an
Issuing Lender under this Agreement with
respect to Letters of Credit issued by it
prior to such replacement, but shall
not be required to issue additional Letters
of Credit.
(k) CASH COLLATERALIZATION. If either (i) an Event of Default
shall occur and be continuing and the
Borrower receives notice from the
Administrative Agent or the Required
Lenders (or, if the maturity of the Loans
has been accelerated, Lenders with LC
Exposure representing more than 50% of the
total LC Exposure) demanding the deposit of
cash collateral pursuant to this
paragraph (k), or (ii) the Borrower shall
be required to provide cover for LC
Exposure pursuant to Section 2.09(a)
hereof, the Borrower shall immediately
deposit into the Collateral Account under
and as defined in the Security
Agreement an amount in cash equal to, in
the case of an Event of Default, the LC
Exposure as of such date PLUS any accrued
and unpaid interest thereon and, in
the case of cover pursuant to Section
2.09(a) hereof the amount required
thereunder; PROVIDED that the obligation to
deposit such cash collateral shall
become effective immediately, and such
deposit shall become immediately due and
payable, without presentment, demand, or
protest or other notice of any kind
(all of which are expressly waived by the
Borrower), upon the occurrence of any
Event of Default with respect to the
Borrower described in Section 9(f) or (g)
hereof. Such deposit shall be held by the
Administrative Agent in the Collateral
Account (as so defined) as collateral in
the first instance for the LC Exposure
under
CREDIT AGREEMENT
<PAGE>
39
this Agreement and thereafter for the
payment of the Secured Obligations under
and as defined in the Security Agreement,
and for these purposes the Borrower
hereby grants a security interest to the
Administrative Agent for the benefit of
the Lenders in the Collateral Account (as
so defined) and in any financial
assets (as defined in the Uniform
Commercial Code as in effect from time to time
in the State of New York) or other property
held therein.
(l) LETTER OF CREDIT FEES. The Borrower agrees to pay (i) to
the Administrative Agent for the account of
each Revolving Credit Lender a
participation fee with respect to its
participations in Letters of Credit, which
shall accrue at a rate per annum equal to
the Applicable Margin for Revolving
Credit Loans that are Eurodollar Loans on
the average daily amount of such
Revolving Credit Lender's LC Exposure
(excluding any portion thereof
attributable to unreimbursed LC
Disbursements) during the period from and
including the Effective Date to but
excluding the later of the date on which
such Revolving Credit Lender's Revolving
Credit Commitment terminates and the
date on which such Revolving Credit Lender
ceases to have any LC Exposure, and
(ii) to each Issuing Lender a fronting fee,
if any, to be agreed between the
Borrower and such Issuing Lender, at a rate
(not to exceed 0.125%) per annum on
the average daily amount of the LC Exposure
(excluding any portion thereof
attributable to unreimbursed LC
Disbursements and, with respect to any Letter of
Credit, excluding the LC Exposure of any
Issuing Lender with respect thereto
(determined for this purposes after giving
effect to the participations therein
of the othe
