$600,000,000
AMENDED AND RESTATED CREDIT AGREEMENT AMONG
CLEAR CHANNEL COMMUNICATIONS, INC. CERTAIN
LENDERS
AND
NATIONSBANK OF TEXAS, N.A., AS ADMINISTRATIVE LENDER
October 19, 1995
Schedules and Exhibits
Schedule 1: LIBOR Lending Offices
Schedule 2: Existing Liens
Schedule 3: Existing Litigation Schedule 4: Licenses,
Permits and Other
Authorizations Schedule 5: Rights Relating to Pledged Stock
Schedule 6: Existing Guaranties Schedule 7: Subsidiaries
Schedule 8: Existing Investments
Schedule 9: Existing Indebtedness
Schedule 10: Guaranties
Schedule 11: Material Adverse Changes
Exhibit A: Revolving Credit Note
Exhibit B: Bid Rate Note
Exhibit C: Borrower Pledge Agreement Exhibit D: Subsidiary
Pledge Agreement (Third Tier) Exhibit E: Subsidiary Pledge
Agreement (Holdings) Exhibit F: Intentionally Omitted
Exhibit G: Subsidiary Guaranty
Exhibit H: Compliance Certificate
Exhibit I: Assignment and Acceptance
Exhibit J: Subsidiary Pledge Agreement (Second Tier)
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT is dated as
of October 19, 1995, among CLEAR CHANNEL
COMMUNICATIONS, INC., a Texas corporation ("Borrower"), the
Lenders from time to time party hereto, and NATIONSBANK OF
TEXAS, N.A., a national banking association, as
administrative agent for the Lenders.
BACKGROUND
The Borrower and lenders entered into that certain Credit
Agreement dated as of September 30, 1994 in the maximum
principal amount of $350,000,000 (said Credit Agreement, as
amended, the "Existing Credit Agreement"). The Borrower
has requested that the Lenders amend and restate the
Existing Credit Agreement by making a credit facility
available to the Borrower up to the maximum
principal amount of $600,000,000.
The Lenders have agreed to do so, subject to the terms and
conditions set forth below.
In consideration of the mutual covenants and
agreements contained herein, and other good and
valuable consideration hereby acknowledged, the parties
hereto agree that the Existing Credit Agreement is being
amended and restated as follows:
ARTICLE 1
Definitions
Section 1.1 Defined Terms. For purposes of
this Agreement:
"ARN" shall mean the Australian Radio Network
Limited, PTY, an Australian propriety company, 50% of whose
Capital Stock is owned by the Borrower.
"ARN Investment" shall mean the investment by the
Borrower in at least 50% of the Capital Stock of ARN.
"Additional Costs" shall have the meaning set forth in
Section 9.5 hereof.
"Administrative Lender" shall mean NationsBank of
Texas, N.A., a national banking association, as
administrative agent for Lenders, or such successor
administrative agent appointed pursuant to Section 10.1(b)
hereof.
"Advance" shall mean a Revolving Credit Advance or
a Bid Rate Advance and "Advances" means Revolving Credit
Advances and Bid Rate Advances.
"Affiliate" shall mean any Person that
directly or indirectly through one or more Subsidiaries
Controls, or is Controlled By or Under Common Control with,
the Borrower.
"Affiliation Agreements" shall mean all
affiliation agreements of the Borrower and each Subsidiary
with Fox Broadcasting.
"Agreement" shall mean this Credit Agreement, as
amended or renewed from time to time.
"Agreement Date" shall mean the date of this Agreement.
"Amortization Date" shall mean the last Business Day of
December 1998.
"Applicable Environmental Laws" shall mean applicable
laws pertaining to health or the environment, including
without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986 (as amended from time to time,
"CERCLA"), the Resource Conservation and Recovery Act of
1976, as amended by the Used Oil Recycling Act of 1980, the
Solid Waste Disposal Act amendments of 1980, and the
Hazardous and Solid Waste Amendments of 1984 (as amended
from time to time, "RCRA"), the Texas Water Code, and the
Texas Solid Waste Disposal Act.
"Applicable Law" shall mean (a) in respect of any
Person, all provisions of constitutions, statutes, rules,
regulations, courts and orders of governmental bodies or
regulatory agencies applicable to such Person and its
properties, including, without limiting the foregoing,
all orders and decrees of all courts and arbitrators in
proceedings or actions to which the Person in question
is a party, and (b) in respect of contracts relating to
interest or finance charges that are made or performed in
the State of Texas, "Applicable Law" shall mean the laws of
the United States of America, including without limitation
12 USC 85 and 86, as amended from time to time, and any
other statute of the United States of America now or at any
time hereafter prescribing the maximum rates of interest on
loans and extensions of credit, and the laws of the State
of Texas, including, without limitation, Article 5069-
1.04, Title 79, Revised Civil Statutes of Texas, 1925,
as amended ("Art. 1.04"), and any other statute of the
State of Texas now or at any time hereafter prescribing
maximum rates of interest on loans and extensions of
credit; provided that the parties hereto agree that the
provisions of Chapter 15, Title 79, Revised Civil Statutes
of Texas, 1925, as amended, shall not apply to
Advances, this Agreement, the Notes or any other
Loan Documents.
"Applicable Margin" shall mean the following per annum
percentages, applicable in the following situations:
Applicability Base Rate LIBOR
Basis
Basis (i) If the Leverage Ratio is
not less than 5.0 to 1 0.25 1.2500
(ii) If the Leverage Ratio is
less than 5.0 to 1 but is not
less than 4.5 to 1
0.00 1.0000
(iii) If the Leverage Ratio
is less than 4.5 to 1 but is
not less than 4.0 to 1 0.00 0.7500
(iv) If the Leverage Ratio
is less than 4.0 to 1 but is
not less than 3.5 to 1 0.00 0.6250
(v) If the Leverage Ratio is
less than 3.5 to 1 but is not
less than 3.0 to 1 0.00 0.5000
(vi) If the Leverage Ratio is
less than 3.0 to 1 but is not
less than 2.0 to 1 0.00 0.4375
(vii) If the Leverage Ratio
is less than 2.0 to 1 0.00 0.3750
The Applicable Margin payable by the Borrower on the
Revolving Credit Advances outstanding hereunder
shall be subject to reduction
or increase, as applicable and as set forth in the
table above, on
a quarterly basis according to the performance of the
Borrower as tested by the Leverage Ratio. Except as
set forth in the last sentence hereof, any such
increase or reduction in the Applicable Margin
provided for herein shall be effective three Business
Days after receipt by Administrative Lender of
the applicable financial statements. If financial
statements of the Borrower setting forth the
Leverage Ratio are not received by the Administrative
Lender by the date required pursuant to Section 6.1
hereof, the Applicable Margin shall be determined as
if the Leverage Ratio is not less than 5.0 to 1 until
such time as such financial statements are received.
For the final quarter of any fiscal year of the
Borrower, the Borrower may provide its unaudited
financial statements, subject only to year-end
adjustments, for the purpose of adjusting the
Applicable Margin. Notwithstanding anything above to
the contrary, if the compliance certificate required
to be delivered pursuant to Section 7.5(b) hereof
prior to any proposed acquisition indicates that the
Leverage Ratio after giving effect to the proposed
acquisition would result in an adjustment of the
Applicable Margin, the Applicable Margin shall be
increased or decreased, as the case may be, as
of the date of such acquisition.
"Art. 1.04" shall have the meaning ascribed
thereto in the definition of "Applicable Law."
"Assignees" shall mean any assignee of a Lender
pursuant to an
Assignment Agreement and shall have the meaning
ascribed thereto in
Section 11.6 hereof.
"Assignment Agreement" shall have the
meaning ascribed thereto
in Section 11.6 hereof.
"Authorized Signatory" shall mean such senior
personnel of the Borrower as may be duly authorized
and designated in writing by the Borrower to
execute documents, agreements and instruments on
behalf of the Borrower, and to request Advances and
Letters of Credit hereunder.
"Base Rate Advance" shall mean any Revolving
Credit Advance bearing interest at the Base Rate
Basis.
"Base Rate Basis" shall mean, for any day, a per
annum interest rate equal to the lesser of (a) the
Highest Lawful Rate on such day, or (b) the higher
of (i) the sum of (A) 0.50% plus (B) the Federal
Funds Rate plus (C) the Applicable Margin, or (ii)
the sum of (A) the Prime Rate on such day plus (B)
the Applicable Margin. The Base Rate Basis shall be
adjusted automatically as of the opening of
business on the effective date of each change in the
Prime Rate or Federal Funds Rate, as the case may be,
to account for such change.
"Bid Rate Advance" shall mean an Advance the
interest rate on which is determined by agreement
between the Borrower and the Lender making such
Advance pursuant to Section 2.1(b) hereof.
"Bid Rate Note" shall mean each promissory note
of the Borrower evidencing Bid Rate Advances,
substantially in the form of Exhibit B hereto,
together with any extension, renewal or
amendment thereof or substitution therefor.
"Borrower" shall mean Clear Channel
Communications, Inc., a Texas corporation.
"Borrower Pledge Agreement" shall mean one or
more pledge agreements, executed by the Borrower,
granting a Lien on (i) the Pledged Stock owned
directly by the Borrower and (ii) the Holdings
Note as security for the Obligations, substantially
in the form of Exhibit C hereto, as such agreement
may be amended, modified, renewed or extended from
time to time.
"Business Day" shall mean a day on which banks
are open for the transaction of business as required
by this Agreement in Dallas, Texas and New York,
New York and, with respect to any LIBOR Advance, in
London, England, and as otherwise relevant to the
determination to be made or the action to be taken.
"Capital Expenditures" shall mean expenditures
for the purchase of tangible assets of long-
term use which are capitalized in accordance with
GAAP; provided, however, Capital Expenditures shall
not include assets acquired through trade without any
expenditure of cash, such trade capital
expenditures not to exceed $3,000,000 in aggregate
value per year, such valuation to be determined using
the lesser of the fair market value of assets
received or the value of air-time run in exchange for
the assets received.
"Capital Stock" shall mean, as to any Person,
the equity interests in such Person, including,
without limitation, the shares of each class of
capital stock of any Person that is a
corporation and each class of partnership interests
(including, without limitation, general, limited and
preference units) in any Person that is a
partnership.
"Capitalized Lease Obligations" shall mean that
portion of any obligation of the Borrower or any
Restricted Subsidiary as lessee under a lease
which at the time would be required to be
capitalized on a balance sheet prepared in accordance
with GAAP.
"CCC-Houston" shall mean CCC-Houston AM,
Ltd., a Texas limited partnership and a Subsidiary
of Borrower.
"CCRE" shall mean Clear Channel Real Estate,
Inc., a Nevada corporation, and a wholly-owned
Subsidiary of Holdings.
"CCRE Note" shall mean that certain promissory
note of CCRE payable to the order of Holdings in the
original principal amount not to exceed $600,000,000
evidencing loans and advances made or to be made by
the Holdings to CCRE, together with any extension,
renewal, increase or amendment thereof, or
substitution therefor.
"CCR Houston-Nevada" shall mean CCR Houston
Nevada, Inc., a Nevada corporation, and a wholly-
owned Subsidiary of Radio.
"CCR Houston-Nevada Note" shall mean that
certain promissory note of CCR Houston-Nevada payable
to the order of Radio in the original principal
amount not to exceed $600,000,000 evidencing loans
and advances made or to be made by the Radio to
CCR Houston- Nevada, together with any
extension, renewal, increase or amendment thereof,
or substitution therefor.
"Code" shall mean the Internal Revenue Code of 1986,
as amended.
"Collateral" shall mean the Pledged Stock, the
Intercompany Notes and any other collateral hereafter
granted by any Person to the Administrative Lender
for the benefit of the Lenders to secure the
Obligations and all proceeds thereof.
"Commitment" shall mean $600,000,000, as
reduced from time to time pursuant to Section 2.6
hereof.
"Communications Act" shall mean, collectively,
the Communications Act of 1934, as amended and the
rules and regulations promulgated thereunder, as
from time to time in effect.
"Control" or "Controlled By" or "Under Common
Control" shall mean possession, directly or
indirectly, of power to direct or cause the direction
of management or policies (whether through ownership
of voting securities, by contract or otherwise);
provided, however, that (a) in the event that no one
Person owns more than 50% of the outstanding
Capital Stock of a corporation or entity, any Person
which beneficially owns, directly or, by contract or
law, indirectly, 10% or more (in number of votes) of
the securities having ordinary voting power for the
election of directors of such corporation shall be
conclusively presumed to control such corporation or
(b) in the event that one Person owns greater than
50% of the outstanding Capital Stock of a
corporation, any Person which beneficially owns,
directly or, by contract or law, indirectly, greater
than 20% or more (in number of votes) of the
securities having ordinary voting power for the
election of directors of such corporation shall be
conclusively presumed to control such corporation.
"Controlled Group" shall mean, as to any Person,
all members ofa controlled group of corporations
and all trades or businesses (whether or not
incorporated) which are under common control with
such Person and which, together with such Person, are
treated as a single employer under Section 414(b),
(c), (m) or (o) of the Code; provided, however,
that the Subsidiaries of the Borrower shall be deemed
to be members of the Borrower's Controlled Group, and
the Borrower and any other entities (whether
incorporated or not incorporated) which are under
common Control with the Borrower and which,
together with the Borrower, are treated as a
single employer under Section 414(b), (c), (m) or
(o) of the Code, shall be deemed to be members of
the Borrower's Controlled Group on and after the
Agreement Date.
"Default" shall mean an Event of Default and/or
any of the events specified in Section 8.1,
regardless of whether there shall have occurred
any passage of time or giving of notice that would
be necessary in order to constitute such event an
Event of Default.
"Default Rate" shall mean a simple per annum
interest rate equal to the lesser of (a) the Highest
Lawful Rate, or (b) the sum of the Base Rate Basis
plus two percent.
"Determining Lenders" shall mean, on any date
of determination, any combination of the Lenders
having at least 51% of the aggregate amount of the
Revolving Credit Advances then outstanding; provided,
however, that if there are no Revolving Credit
Advances outstanding hereunder,
"Determining Lenders" shall mean any
combination of Lenders whose Specified Percentages
aggregate at least 51%.
"Dividend" shall mean, as to any Person, (a) any
declaration or payment of any dividend (other than a
dividend paid solely in shares of the common stock
of such Person) on, or the making of any
distribution, loan, advance or investment to or in
any holder of, any shares of Capital Stock of such
Person (other than salaries and bonuses paid in the
ordinary course of business), or (b) any purchase,
redemption, or other acquisition or retirement
for value of any shares of Capital Stock of such
Person; provided, however, that the acquisition of
shares of Capital Stock of such Person for the
purpose of acquiring a Subsidiary (whether by merger,
consolidation, asset acquisition, stock
acquisition, or otherwise) shall not be deemed a
Dividend if (a) such shares are used as a portion or
all of the purchase price for the acquisition of a
Subsidiary within a period of ninety days from
the date the initial shares of such Capital Stock
were acquired and (b) such Person shall have given
the Administrative Lender prior written notice of
its intention to acquire such Capital Stock for the
purpose of acquiring a Subsidiary.
"Equity" shall mean shares of Capital Stock, or
options, warrants or any other right to subscribe for
or otherwise acquire Capital Stock, of the Borrower
or any Subsidiary.
"ERISA" shall mean the Employee Retirement
Income Security Act of 1974, as amended from time to
time, and any regulation promulgated thereunder.
"ERISA Event" shall mean, with respect to the
Borrower and its Subsidiaries, (a) a Reportable
Event (other than a Reportable Event not subject to
the provision for 30-day notice to the PBGC under
regulations issued under Section 4043 of ERISA),
(b) the withdrawal of any such Person or any member
of its Controlled Group from a Plan during a plan
year in which it was a "substantial employer" as
defined in Section 4001(a)(2) of ERISA, (c) the
filing of a notice of intent to terminate under
Section 4041 of ERISA, (d) the institution of
proceedings to terminate a Plan by the PBGC, (e)
the failure to make required contributions which
could result in the imposition of a lien under
Section 412 of the Code or Section 302 of ERISA, or
(f) any other event or condition which might
reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan or
the imposition of any liability under Title IV of
ERISA other than PBGC premiums due but not delinquent
under Section 4007 of ERISA.
"Event of Default" shall mean any of the events
specified in Section 8.1, provided that any
requirement for notice or lapse of time has been
satisfied.
"Excess Cash Flow" shall mean, for any year,
calculated for the Borrower and its Restricted
Subsidiaries on a consolidated basis, an amount
equal to the remainder of (a) Operating Cash Flow
for said year, minus (b) the sum of (i) Capital
Expenditures for said year, plus (ii) cash
expenditures for the payment of taxes for said
year, plus (iii) principal, interest and fees
scheduled to be paid and paid for said year with
respect to Indebtedness.
"Existing Credit Agreement" shall mean that
certain Credit Agreement dated as of September 30,
1994, by and among the Borrower, NationsBank of
Texas, N.A., as Administrative Lender, and the
lenders party thereto, as the same may have been
amended, modified, renewed or extended from time to
time.
"FCC" shall mean the Federal
communications Commission, or any governmental
agency succeeding to the functions thereof.
"Federal Funds Rate" shall mean, for any day,
the rate per annum (rounded upwards if necessary, to
the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds
transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New
York on the Business Day next succeeding such day,
provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such
rate on such transactions on the next preceding
Business Day as so published on the next succeeding
Business Day, and (b) if no such rate is so published
on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate
quoted to the Administrative Lender on such day on
such transactions as determined by Administrative
Lender.
"Fixed Charges" shall mean, for the Borrower and
its Restricted Subsidiaries on a consolidated basis
determined in accordance with GAAP, for the four most
recently ended fiscal quarters preceding any date of
determination, an amount equal to the sum of (a)
all payments of principal, interest, fees and
other amounts paid on all Indebtedness, plus (b) all
payments under Capitalized Lease Obligations, plus
(c) all Capital Expenditures, plus (d) cash
expenditures for the payment of taxes, plus (e) all
Dividends paid.
"GAAP" shall mean generally accepted accounting
principles applied on a consistent basis, set forth
in the Opinions of the Accounting Principles Board
of the American Institute of Certified Public
Accountants, or their successors which are applicable
in the circumstances as of the date in question.
The requisite that such principles be applied on a
consistent basis shall mean that the accounting
principles observed in a current period are
comparable in all material respects to those applied
in a preceding period.
"Guaranty" or "Guaranteed", as applied to an
obligation, shall mean and include (a) a guaranty,
direct or indirect, in any manner, of any part
or all of such obligation, and (b) an agreement,
direct or indirect, contingent or otherwise, the
practical effect of which is to assure in any way
the payment or performance (or payment of damages in
the event of nonperformance) of any part or all of
such obligation, including, without limiting the
foregoing, any reimbursement obligations with respect
to amounts which may be drawn by beneficiaries of
outstanding letters of credit.
"Highest Lawful Rate" shall mean at the
particular time in question the maximum rate of
interest which, under Applicable Law, the Lenders
are then permitted to charge on the Obligations. If
the maximum rate of interest which, under Applicable
Law, the Lenders are permitted to charge on the
Obligations shall change after the date hereof, the
Highest Lawful Rate shall be automatically increased
or decreased, as the case may be, from time to time
as of the effective time of each change in the
Highest Lawful Rate without notice to the Borrower.
For purposes of determining the Highest Lawful Rate
under the Applicable Law of the State of Texas
(including any amendment to such Applicable Law), the
applicable rate ceiling shall be (a) the indicated
rate ceiling described in and computed in accordance
with the provisions of Section (a)(1) of Art. 1.04,
or (b) if the parties subsequently contract as
allowed by Applicable Law, the quarterly ceiling or
the annualized ceiling computed pursuant to Section
(d) of Art. 1.04; provided, however, that at any
time the indicated rate ceiling, the quarterly
ceiling or the annualized ceiling shall be less
than 18% per annum or more than 24% per annum, the
provisions of Sections (b)(1) and (2) of said Art.
1.04 shall control for purposes of such
determination, as applicable.
"Holdings" shall mean Clear Channel Holdings,
Inc., a Nevada corporation, and a wholly-owned
Subsidiary of the Borrower.
"Holdings Note" shall mean that certain
promissory note of Holdings payable to the order
of Borrower in the original principal amount not
to exceed $600,000,000 evidencing loans and advances
made or to be made by the Borrower to Holdings,
together with any extension, renewal, increase
or amendment thereof, or substitution therefor.
"Increased Letter of Credit Costs" shall have
the meaning set forth in Section 2.16(d) hereof.
"Increased Letter of Credit Costs
Retroactive Effective Date" shall have the meaning
set forth in Section 2.16(d) hereof.
"Increased Letter of Credit Costs Set Date"
shall have the meaning set forth in Section 2.16(d)
hereof.
"Indebtedness" shall mean, with respect to any
Person, (a) all items, except items of partners'
equity or of Capital Stock or of surplus or of
general contingency or deferred tax reserves, which
in accordance with GAAP would be included in
determining total liabilities as shown on the
liability side of a balance sheet of such Person, (b)
all obligations secured by any Lien on any property
or asset owned by such Person, whether or not the
obligation secured thereby shall have been assumed,
(c) to the extent not otherwise included, all
Capitalized Lease Obligations of such Person, all
obligations of such Person with respect to leases
constituting part of a sale and leaseback
arrangement, all Guaranties, all obligations under
interest rate swap agreements or similar hedge
agreements, all indebtedness for borrowed money
(excluding, for purposes of calculation of financial
covenants only, indebtedness evidenced by
Intercompany Notes), and all reimbursement
obligations with respect to outstanding letters of
credit, and (d) any "withdrawal liability" of the
Borrower or any Subsidiary, as such term is defined
under Part I of Subtitle E of Title IV of ERISA.
"Indemnified Matters" shall have the meaning
ascribed to it in Section 5.10(a) hereof.
"Indemnitees" shall have the meaning ascribed
to it in Section 5.10(a) hereof.
"Index Debt Rating" shall mean the rating
available to the Borrower's senior,
unsecured, noncredit-enhanced long term
indebtedness for borrowed money ("Index
Debt") or the implied rating established by
▇▇▇▇▇'▇ or S&P as if the Borrower had
outstanding Index Debt.
"Institutional Debt" shall mean Indebtedness
for borrowed money which may be
raised by the Borrower in the private
placement or public debt markets.
"Intercompany Notes" shall mean,
collectively, the Management Note, the
Television Note, the Radio Note, the Metroplex
Note, the Radio Licenses Note, the Television
Licenses Note, the Metroplex Licenses Note, the
Memphis Note, the Productions Note, the CCR Houston -
Nevada Note, the CCRE Note and the Holdings Note.
"Interest Period" shall mean (a) for any Base
Rate Advance, the period beginning on the day the
Advance was made and ending on the first Quarterly
Date thereafter, (b) for any LIBOR Advance, the
period beginning on the day the Advance is made and
ending one, two, three, six or, subject to each
Lender's good faith determination of availability,
twelve months thereafter (as the Borrower shall
select), and (c) any Bid Rate Advance, the period
beginning on the day the Advance was made and ending
the date the Borrower and the Lender making the
Bid Rate Advance agree pursuant to Section 2.1(b).
"Investment" shall mean any acquisition of all
or substantially all assets of any Person, or any
direct or indirect purchase or other acquisition of,
or beneficial interest in, Capital Stock or other
securities of any other Person, or any direct or
indirect loan, advance (other than advances to
employees for moving and travel expenses, drawing
accounts and similar expenditures in the ordinary
course of business) or capital contribution to, or
investment in any other Person, including without
limitation the incurrence or sufferance of
Indebtedness or accounts receivable of any other
Person that are not current assets or do not arise
in the ordinary course of business.
"Issuing Bank" shall mean NationsBank of Texas,
N.A., in its capacity as issuer of the Letters of
Credit.
"L/C Cash Collateral Account" shall have
the meaning specified in Section 2.16(g) hereof.
"L/C Related Documents" shall have the meaning
specified in Section 2.16(d) hereof.
"Lender" shall mean each financial institution
shown on the signature pages hereof so long as such
financial institution maintains a Commitment or is
owed any part of the Obligations (including the
Administrative Lender in its individual capacity),
and each Assignee that hereafter becomes party hereto
pursuant to Section 11.6 hereof.
"Letter of Credit" shall have the meaning specified
in Section 2.16(a) hereof.
"Letter of Credit Agreement" shall have
the meaning specified in Section 2.16(b) hereof.
"Letter of Credit Facility" shall mean the amount of
the
Letters of Credit the Issuing Bank may issue pursuant
to Section 2.16(a) hereof.
"Leverage Ratio" shall mean, for any date of
determination, the ratio of Total Debt as of the date
of determination to Operating Cash Flow for the four
most recently ended fiscal quarters preceding such
date of determination.
"LIBOR Advance" shall mean a Revolving Credit
Advance which the Borrower requests to be made as a
LIBOR Advance or which is reborrowed as a LIBOR
Advance, in accordance with the provisions of Section
2.2 hereof.
"LIBOR Basis" shall mean a simple per annum
interest rate equal to the lesser of (a) the
Highest Lawful Rate, or (b) the sum of the LIBOR
Rate plus the Applicable Margin. The LIBOR Basis
shall, with respect to LIBOR Advances with Interest
Periods in excess of six months, be subject to
premiums assessed by each Lender, which are payable
directly to each Lender. Once determined, the LIBOR
Basis shall remain unchanged during the applicable
Interest Period.
"LIBOR Lending Office" shall mean, with respect
to a Lender, the office designated as its LIBOR
Lending Office on Schedule 1 attached hereto, and
such other office of the Lender or any of its
affiliates hereafter designated by notice to the
Borrower and the Administrative Lender.
"LIBOR Rate" shall mean, for any Interest
Period, the interest
rate per annum (rounded upward to the nearest one
sixteenth (1/16th) of one percent) at which
deposits in United States Dollars are offered to
the Administrative Lender by leading banks reasonably
selected by the Administrative Lender in the London
interbank market at approximately 11:00 a.m. (London
time), two Business Days before the first day of such
Interest Period, in an amount approximately equal to
the principal amount of, and for a length of time
approximately equal to the Interest Period for,
the LIBOR Advance sought by the Borrower.
"Lien" shall mean, with respect to any
property, any mortgage,
lien, pledge, collateral assignment, hypothecation,
charge, security interest, title retention
agreement, levy, execution, seizure, attachment,
garnishment or other encumbrance of any kind in
respect of such
property, whether or not ▇▇▇▇▇▇, vested or perfected.
"Loan Documents" shall mean this Agreement, the
notes, the pledge agreements, the Subsidiary
Guaranty, fee letters, and any other document or
agreement executed or delivered from time to time
by the Borrower, any Subsidiary or any other Person
in connection herewith or as security for the
Obligations.
"Local Marketing Agreement" shall mean any time
brokerage agreements, local market affiliation
agreements or related or similar agreements entered
into between the Borrower or any Subsidiary and any
other Person, as any of the above may be amended,
substituted, replaced or modified.
"Management" shall mean Clear Channel
Management, Inc., a Delaware corporation, and a
wholly-owned Subsidiary of Holdings.
"Management Note" shall mean that certain
promissory note of Management payable to the order of
Holdings in the original principal amount not to
exceed $600,000,000 evidencing loans and advances
made or to be made by Holdings to Management,
together with any extension, renewal, increase or
amendment thereof, or substitution therefor.
"Material Adverse Effect" shall mean any act or
circumstance or event that (a) causes a Default, or
(b) otherwise could reasonably be expected to be
material and adverse to the business,
consolidated assets, liabilities, financial
condition, results of operations or prospects of the
Borrower and its Restricted Subsidiaries, together
taken as a whole.
"Maturity Date" shall mean the last
Business Day of September
2003.
"Maximum Amount" shall mean the maximum amount
of interest which, under Applicable Law, the Lenders
are permitted to charge on the Obligations.
"Memphis" shall mean Clear Channel
Communications of Memphis,
Inc., a Texas corporation, and a wholly-owned
Subsidiary of Holdings.
"Memphis Note" shall mean that certain
promissory note of Memphis payable to the order
of Holdings in the original principal
amount not to exceed $600,000,000 evidencing loans
and advances made or to be made by Holdings to
Memphis, together with any extension, renewal,
increase or amendment thereof or substitutions
therefor.
"Metroplex" shall mean Clear Channel
Metroplex, Inc., a Nevada
corporation, and a wholly-owned Subsidiary of
Metroplex Licenses.
"Metroplex Licenses" shall mean Clear Channel
Metroplex Licenses, Inc., a Nevada corporation,
and a wholly-owned Subsidiary
of the Borrower.
"Metroplex Licenses Note" shall mean that
certain promissory note of Metroplex Licenses
payable to the order of the Borrower in the original
principal amount not to exceed $600,000,000
evidencing loans or advances made or to be made by
Borrower to Metroplex Licenses, together with any
extension, renewal, increase or amendment thereof, or
substitution therefor.
"Metroplex Note" shall mean that certain
promissory note of Metroplex payable to the order of
Metroplex Licenses in the original principal amount
not to exceed $600,000,000 evidencing loans or
advances made or to be made by Metroplex Licenses to
Metroplex, together with any extension, renewal,
increase or amendment thereof, or substitution
therefor.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Services, Inc.
"Multiemployer Plan" shall mean, as to any
Person, at any time, a "multiemployer plan" within
the meaning of Section 4001(a)(3) of ERISA and to
which such Person or any member of its Controlled
Group is making, or is obligated to make
contributions or has made, or been obligated to make,
contributions.
"NationsBank Guaranties" shall mean the Guaranty
in favor of NationsBank of Texas, N.A. on behalf of
RDS Broadcasting, Inc. and
Mercury Broadcasting, Inc. in the amounts of
$9,575,000 and $2,000,000 respectively.
"Necessary Authorization" shall mean any
license, permit, consent, approval or authorization
from, or any filing or registration with, any
governmental or other regulatory authority (including
without limitation the FCC) necessary or appropriate
to enable the Borrower or any Subsidiary to maintain
and operate its business and properties.
"Net Cash Proceeds" shall mean, with respect to
any sale, lease, transfer or disposition of any asset
by any Person or the issuance of Institutional Debt
or Equity by any Person, the aggregate amount of
cash received by such Person in connection with
such transaction minus reasonable fees, costs and
expenses and related taxes.
"Notice of Issuance" shall have the meaning
ascribed to it in
Section 2.16(b) hereof.
"Obligations" shall mean (a) all obligations of
any nature (whether matured or unmatured, fixed or
contingent, including the Reimbursement Obligations)
of the Borrower or any Subsidiary to the Lenders
under the Loan Documents, as they may be amended from
time to time, and (b) all obligations of the Borrower
or any Subsidiary for losses, damages, expenses or
any other liabilities of any kind that any Lender
may suffer by reason of a breach by the Borrower or
any Subsidiary of any obligation, covenant or
undertaking with respect to any Loan Document.
"Operating Cash Flow" shall mean, for any
period,
determined in accordance with GAAP on a consolidated
basis for the Borrower and its Restricted
Subsidiaries, the sum of (a) pre-tax net income
(excluding therefrom (i) any items of
extraordinary gain, including net gains on the sale
of assets other than asset sales in the ordinary
course of business, and (ii) any items of
extraordinary loss, including net losses on the sale
of assets other than asset sales in the ordinary
course of business), plus (b) interest expense,
depreciation and amortization (including amortization
of film contracts), and other non-cash expenses, and
minus (c) payments made or scheduled to be made with
respect to film contracts. Operating Cash Flow shall
be adjusted to exclude (i) any extraordinary non-cash
items deducted from or included in the calculation
of pre-tax net income and (ii) without duplication,
any accrued but not paid income from Investments.
For purpose of calculation of Operating Cash Flow
with respect to assets not owned at all times
during the four fiscal quarters preceding the date
of determination of Operating Cash Flow there shall
be (i) included in Operating Cash Flow the
Operating Cash Flow of any assets acquired during
any of such four fiscal quarters for the twelve
month period preceding the date of determination and
(ii) excluded from Operating Cash Flow the
Operating Cash Flow of any assets disposed of
during any of such four fiscal quarters for the
twelve month period preceding the date of
determination.
"Operating Lease" shall mean any operating
lease, as defined in the Financial Accounting
Standard Board Statement of Financial Accounting
Standards No. 13, dated November, 1976 or otherwise
in accordance with GAAP, with an initial or remaining
noncancellable lease term in excess of one year.
"Participant" shall have the meaning ascribed
to it in Section
11.6(c) hereof.
"Participation" shall have the meaning ascribed to it
in Section 11.6(c) hereof.
"Payment Date" shall mean the last day of
the Interest Period
for any Advance.
"PBGC" means the Pension Benefit Guaranty
Corporation or any entity succeeding to any or all of
its functions under ERISA.
"Permitted Liens" shall mean, as applied to any
Person:
(a) any Lien in favor of the Lenders to secure the
Obligations hereunder;
(b) (i) Liens on real estate for real estate
taxes not yet delinquent, (ii) Liens created by lease
agreements to secure the payments of rental amounts
and other sums not yet due thereunder, (iii) Liens on
leasehold interests created by the lessor in favor of
any mortgagee of the leased premises, and (iv)
Liens for taxes, assessments, governmental charges,
levies or claims that are being diligently
contested in good faith by appropriate proceedings
and
for which adequate reserves shall have been set aside
on such Person's books, but only so long as no
foreclosure, restraint, sale or similar proceedings
have been commenced with respect thereto;
(c) Liens of carriers, warehousemen,
mechanics, laborers and materialmen and other
similar Liens incurred in the ordinary course of
business for sums not yet due or being contested
in good faith, if such reserve or appropriate
provision, if any, as shall be required by GAAP shall
have been made therefor;
(d) Liens incurred in the ordinary course of
business in connection with worker's compensation,
unemployment insurance or similar legislation;
(e) Easements, right-of-way, restrictions and
other similar encumbrances on the use of real
property which do not interfere with the ordinary
conduct of the business of such Person;
(f) Liens created to secure the purchase price of
tangible personal property acquired by such Person or
created to secure Indebtedness permitted by Section
7.1(d) hereof in an amount not to exceed $7,500,000
in the aggregate, which is incurred solely for the
purpose of financing the acquisition of such assets
and incurred at the time of acquisition, so long as
each such Lien shall at all times be confined solely
to the asset or assets so acquired (and proceeds
thereof), and refinancings thereof so long as any
such Lien remains solely on the asset or assets
acquired and the amount of Indebtedness related
thereto is not increased;
(g) Liens in respect of judgments or awards
for which appeals or proceedings for review are
being prosecuted and in respect of which a stay of
execution upon any such appeal or proceeding for
review shall have been secured, provided that (i)
such Person shall have established adequate reserves
for such judgments or awards, (ii) such judgments or
awards shall be fully insured and the insurer shall
not have denied coverage, or (iii) such judgments or
awards shall have been bonded to the satisfaction of
the Determining Lenders; and
(h) Any Liens existing on the Agreement Date which
are described on Schedule 2 hereto, and Liens
resulting from the refinancing of the related
Indebtedness, provided that the Indebtedness secured
thereby shall not be increased and the Liens shall
not cover additional assets of the Borrower.
"Person" shall mean an individual, corporation,
partnership, trust or unincorporated organization,
limited liability company, or a government or any
agency or political subdivision thereof.
"Plan" shall mean an employee pension
benefit plan as defined in Section 3(2) of ERISA
(including a Multiemployer Plan) that is covered by
Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and is
maintained for the employees of the Borrower, its
Subsidiaries or any member of their Controlled
Group.
"Pledged Stock" shall mean all Capital
Stock of the Restricted Subsidiaries.
"Prime Rate" shall mean, at any time, the
prime interest rate announced or published by the
Administrative Lender from time to time as its
reference rate for the determination of interest
rates for loans of varying maturities in United
States dollars to United States residents of
varying degrees of creditworthiness and being quoted
at such time by the Administrative Lender as its
"prime rate;" it being understood that such rate may
not be the lowest rate of interest charged by the
Administrative Lender.
"Productions" shall mean Clear Channel
Productions, Inc., a Nevada corporation, and a wholly
owned Subsidiary of Holdings.
"Productions Note" shall mean that certain
promissory note of Productions payable to the order
of Holdings in the original principal amount not to
exceed $600,000,000 evidencing loans and advances
made or to be made by Holdings to Productions,
together with any extension, renewal, increase or
amendment thereof, or substitution therefor.
"Pro-Forma Debt Service" shall mean, as of any
date of determination, determined in accordance
with GAAP for the Borrower and its Restricted
Subsidiaries on a consolidated basis, the sum
(without duplication) of (a) all payments of
principal, interest, fees and other amounts scheduled
to be paid on all Indebtedness during the succeeding
four fiscal quarters (assuming for any Indebtedness
subject to a floating interest rate, an interest
rate equal to the applicable rate in effect on the
date of determination), plus (b) without
duplication, all rentals and other amounts
(excluding insurance premiums and property
taxes) scheduled to be paid under all Capitalized
Lease Obligations during the succeeding four fiscal
quarters, plus (c) all debt discount and expense
scheduled to be amortized during the succeeding
four fiscal quarters..
"Quarterly Date" shall mean the last Business
Day of each September, December, March and June,
beginning December 31, 1995.
"Radio" shall mean Clear Channel Radio, Inc., a
Nevada corporation, and a wholly-owned Subsidiary of
Radio Licenses.
"Radio Licenses" shall mean Clear Channel Radio
Licenses, Inc., a Nevada corporation, and a wholly-
owned Subsidiary of Holdings.
"Radio Licenses Note" shall mean that certain
promissory note of Radio Licenses payable to the
order of Holdings in the original principal amount
not to exceed $600,000,000 evidencing loans and
advances made or to be made by Holdings to Radio
Licenses, together with any extension, renewal,
increase or amendment thereto, or substitution
therefor.
"Radio Note" shall mean that certain
promissory note of Radio payable to the order of
Radio Licenses in the original principal amount not
to exceed $600,000,000 evidencing loans and advances
made or to be made by Radio Licenses to Radio,
together with any extension, renewal, increase or
amendment thereof, or substitution therefor.
"Refinancing Advance" shall mean any
Revolving Credit Advance which is used to pay
the principal amount (or any portion thereof) of a
Revolving Credit Advance or Bid Rate Advance at the
end of its Interest Period and which, after
giving effect to such application, does not
result in an increase in the aggregate amount of
outstanding Revolving Credit Advances or Bid Rate
Advances at the time of the Refinancing Advance.
"Regulatory Modification" shall have the
meaning set forth in Section 9.5 hereof.
"Regulatory Modification Retroactive Effective
Date" shall have the meaning set forth in Section
9.5 hereof.
"Regulatory Modification Set Date" shall have
the meaning set forth in Section 9.5 hereof.
"Reimbursement Obligation" shall mean, in
respect of any Letter of Credit as at any date of
determination, the maximum aggregate amount which is
then available to be drawn under such Letter of
Credit (whether the conditions to drawing
thereunder have been met) plus any unreimbursed
amounts under outstanding Letters of Credit.
"Release Date" shall mean the date on which the
Notes have been paid, all other Obligations due and
owing have been paid and performed in full, and the
Commitment has been terminated.
"Reportable Event" shall have the meaning set
forth in Title IV of ERISA.
"Restricted Subsidiary" shall mean (i) any
Subsidiary which is not an Unrestricted Subsidiary
and (ii) ARN.
"Revolving Credit Advance" shall mean an
Advance made pursuant to Section 2.1(a) hereof.
"Revolving Credit Note" shall mean any
promissory
note of the
Borrower evidencing Revolving Credit Advances
hereunder, substantially in the form of Exhibit A
hereto, together with any extension, renewal or
amendment thereof or substitution therefor.
"S&P" shall mean Standard & Poor's Ratings
Group, a Division of ▇▇▇▇▇▇-▇▇▇▇, Inc., a New York
Corporation.
"▇▇▇▇▇▇▇ Broadcasting" shall mean ▇▇▇▇▇▇▇
Broadcasting, L.C.,
a Texas limited liability company.
"▇▇▇▇▇▇▇ Broadcasting of Louisville" shall mean
▇▇▇▇▇▇▇ Broadcasting of Louisville, Inc., a Texas
corporation.
"Special Counsel" shall mean the law firm
of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., or such
other legal counsel as the Administrative Lender
may select.
"Specified Percentage" shall mean, as to any
Lender, the percentage indicated beside its name
on the signature pages hereof, or if applicable,
specified in its most recent Assignment Agreement.
"Subordinated Debt" shall mean any Institutional
Debt of the Borrower or any of its Subsidiaries which
shall have been and continues to be validly and
effectively subordinated to the prior payment in full
of the Obligations on terms and documentation
approved in writing by the Determining Lenders.
"Subsidiary" shall mean (a) any corporation of
which 50% or more of the outstanding stock (other
than directors' qualifying shares) having ordinary
voting power to elect a majority of its board of
directors, regardless of the existence at the time of
a right
of the holders of any class of securities of
such corporation to exercise such voting power by
reason of the happening of any contingency, is at the
time owned by the Borrower, directly or through one
or more intermediaries, and (b) any other entity
which is Controlled or then capable of being
Controlled by the Borrower, directly or through one
or more intermediaries, whether a Restricted
Subsidiary or Unrestricted Subsidiary.
"Subsidiary Guaranty" shall mean any Guaranty
executed by one
or more Restricted Subsidiaries, guarantying payment
and performance of the Obligations, substantially in
the form of Exhibit G hereto, as such agreement may
be amended, modified, renewed or extended from time
to time.
"Subsidiary Pledge Agreement" shall mean,
collectively, any pledge agreement executed by one or
more Restricted Subsidiaries, granting a Lien on (i)
the Pledged Stock owned by such Restricted Subsidiary
and (ii) each Intercompany Note evidencing
intercompany advances made by such Restricted
Subsidiary, as security for the Obligations,
substantially in the forms of Exhibit D, E, G and J
hereto, as appropriate, as such agreement may
be amended, modified, renewed or extended from time
to time.
"Television" shall mean Clear Channel
Television, Inc., a Nevada corporation, and a wholly-
owned Subsidiary of Television Licenses.
"Television Licenses" shall mean Clear Channel
Television Licenses, Inc., a Nevada corporation,
and a wholly-owned Subsidiary of Holdings.
"Television Licenses Note" shall mean
that certain promissory note of Television Licenses
payable to the order of Holdings in the original
principal amount not to exceed $600,000,000
evidencing loans and advances made or to be made by
Holdings to Television Licenses, together with any
extension, renewal, increase or amendment thereof, or
substitution therefor. "Television Note" shall
mean that certain promissory note of Television
payable to the order of Television Licenses in the
original principal amount not to exceed $600,000,000
evidencing loans and advances made or to be made by
Television Licenses to Television, together with any
extension, renewal, increase or amendment thereof, or
substitution therefor.
"Termination Event" shall mean, with
respect to the Borrower, any of its Subsidiaries or
any Plan, (a) a Reportable Event, (b) the withdrawal
from a Plan during a Plan year in which it was a
"substantial employer" as defined in Section
4001(a)(2) of ERISA, (c) the filing of a notice of
intent to terminate a Plan or the treatment of a Plan
amendment as a termination under Section 4041 of
ERISA, (d) the institution of proceedings by the
Pension Benefit Guaranty Corporation to terminate a
Plan or appoint a trustee to administer a Plan, (e)
the failure to comply with the minimum funding
requirements of ERISA with respect to any Plan, or
(f) any other event or condition which might
constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee
to administer, any Plan.
"Total Debt" shall mean, as of any date of
determination, determined for the Borrower and its
Restricted Subsidiaries on a consolidated basis, the
sum (without duplication) of (a) all principal and
interest owing under the Loan Documents, (b) all
Indebtedness evidenced by a promissory note or
otherwise representing borrowed money, (c) all
Capitalized Lease Obligations and (d) all
Guaranties.
"Unrestricted Subsidiary" shall mean any entity
acquired by an
Investment to the extent permitted pursuant to
Section 7.3(h) hereof. An Unrestricted Subsidiary
may become a Restricted Subsidiary and subject to
the provisions hereof by becoming a party to the
Subsidiary Guaranty and any security documents
delivered pursuant to Section 5.12 hereof.
"Weighted Average Life to Maturity" shall mean,
as of the date
of determination, with respect to any debt
instrument, the quotient
obtained by dividing (i) the sum of the products of
the number of years from the date of determination to
the dates of each successive scheduled principal
payment of such debt instrument by the amount of such
principal payment by (ii) the sum of all such
principal payments.
Section 1.2 Amendments and Renewals. Each
definition of an
agreement in this Article 1 shall include such
agreement as amended
to date, and as amended or renewed from time
to time in accordance
with its terms, but only with the prior written
consent of the Determining Lenders.
Section 1.3 Construction. The terms defined in
this Article 1 (except as otherwise expressly
provided in this Agreement) for all purposes shall
have the meanings set forth in Section 1.1 hereof,
and the singular shall include the plural, and vice
versa, unless otherwise specifically required by
the context. All accounting terms used in this
Agreement which are not otherwise defined herein
shall be construed in accordance with GAAP on a
consolidated basis for the Borrower and its
Subsidiaries, unless otherwise expressly stated
herein. To the extent that a material change in GAAP
occurs after the Agreement Date, Borrower and Lenders
agree to negotiate in good faith to affect conforming
changes to
the financial covenants set
forth in Article 7 hereof.
ARTICLE 2
Advances
Section 2.1 The Advances.
(a) Revolving Credit Advances. Each
Lender severally agrees,
upon the terms and subject to the conditions of
this Agreement, to
make Revolving Credit Advances to the Borrower from
time to time up
to and including the Maturity Date in an aggregate
amount not to exceed its Specified Percentage of the
Commitment less its Specified Percentage of the
Reimbursement Obligations then outstanding (assuming
compliance with all conditions to drawing) for the
purposes set forth in Section 5.9 hereof. Subject to
Section 2.9 hereof, Advances may be repaid and then
reborrowed. Any Revolving Credit Advance shall, at
the option of the Borrower as provided in Section 2.2
hereof (and, in the case of LIBOR Advances, subject
to availability and to the provisions of Article 9
hereof), be made as a Base Rate Advance or a LIBOR
Advance; provided that there shall not be outstanding
to any Lender, at any one time, more than seven
LIBOR Advances. Notwithstanding any provision in
any Loan Document to the contrary,
in no event shall the principal amount of all
outstanding Revolving
Credit Advances, Bid Rate Advances and Reimbursement
Obligations plus the principal amount of Indebtedness
guaranteed by the Borrower pursuant to the
NationsBank Guaranties exceed the Commitment. On the
Maturity Date
unless sooner paid as provided herein, the
outstanding Revolving Credit Advances shall be repaid
in full.
(b) Bid Rate Advances. Each Lender may, in its
sole discretion and on the terms and conditions set
forth in this Agreement, make Bid Rate Advances to
the Borrower from time to time
in an aggregate amount not in excess of the
difference between (i)
the Commitment minus (ii) the sum of (A) the
aggregate
outstanding principal amount for all Revolving Credit
Advances, plus (B) the aggregate outstanding
principal amount of all Bid Rate Advances, plus (C)
the amount of all Reimbursement Obligations, plus
(D)
the principal amount of Indebtedness guaranteed by
the Borrower pursuant to the NationsBank Guaranties.
Notwithstanding anything in the preceding sentence to
the contrary, Bid Rate Advances may not exceed
$300,000,000 at any time. Each Bid Rate Advance
shall be for a period for not less than 7 days and
not more than 90 days. The Borrower may not
request any Bid Rate Advances unless the Index Debt
Rating is the following or better: BBB- from S&P or
Baa3
from Moody's. Bid Rate Advances may not be prepaid
without the prior written consent of the Lender
making such Bid Rate Advances.
Section 2.2 Manner of Borrowing and Disbursement.
(a) In the case of Base Rate Advances,
the Borrower, through an Authorized Signatory, shall
give the Administrative Lender at least one
Business Days' irrevocable written notice, or
irrevocable telephonic notice followed immediately
by written notice (provided, however, that the
Borrower's failure to confirm any telephonic notice
in writing shall not invalidate any notice so given),
of its intention to borrow or reborrow a Base Rate
Advance hereunder. Notice shall be given to the
Administrative Lender prior to 11:00 a.m., Dallas,
Texas time, in order for such Business Day to count
toward the minimum number of Business Days required.
Such notice of borrowing shall specify the
requested funding date, which shall be a Business
Day, and the amount of the proposed aggregate Base
Rate Advances to be made by Lenders. Each Base
Rate Advance shall have an Interest Period
beginning on the date such Advance is made and
ending on the Quarterly Date next following the date
the Advance is made; provided that no such
Interest Period shall extend past the Maturity Date.
(b) In the case of LIBOR Advances, the
Borrower, through an Authorized Signatory, shall
give the Administrative Lender at least three
Business Days' irrevocable written notice, or
irrevocable telephonic notice followed immediately
by written notice (provided, however, that the
Borrower's failure to confirm any telephonic notice
in writing shall not invalidate any notice so given),
of its intention to borrow or reborrow a LIBOR
Advance hereunder. Notice shall be given to the
Administrative Lender prior to 11:00 a.m., Dallas,
Texas time, in order for such Business Day to
count toward the minimum number of Business Days
required. LIBOR Advances
shall in all cases be subject to availability and to
Article 9 hereof. For LIBOR Advances, the notice of
borrowing shall specify the requested funding date,
which shall be a Business Day, the amount of the
proposed aggregate LIBOR Advances to be made by
Lenders and the Interest Period selected by the
Borrower, provided that no such Interest Period
shall extend past the Maturity Date or prohibit
or impair the Borrower's ability to comply with
Section 2.8 hereof.
(c) Subject to Sections 2.1 and 2.9 hereof, at
least three Business Days prior to each Payment Date
for a LIBOR Advance, the Borrower, through an
Authorized Signatory, shall give the Administrative
Lender irrevocable written notice, or irrevocable
telephonic notice followed immediately by
written notice (provided, however, that the
Borrower's failure to confirm any telephonic notice
in writing shall not invalidate any notice so given),
specifying whether all or a portion of such LIBOR
Advance outstanding on the Payment Date (i) is to be
repaid and then reborrowed in whole or in part as a
LIBOR Advance, (ii) is to be repaid and then
reborrowed in whole or in part as a Base Rate
Advance, or (iii) is to be repaid and not reborrowed;
provided, however, notwithstanding anything in this
Agreement to the contrary, if on any Payment Date
a Default shall exist, such LIBOR Advance may only
be reborrowed as a Base Rate Advance. Upon such
Payment Date, such LIBOR Advance shall, subject to
the provisions hereof, be so repaid and, as
applicable, reborrowed.
(d) Subject to Sections 2.1 and 2.9 hereof,
upon at least three Business Days' irrevocable prior
written notice (or three Business Days if the
Borrower wishes to reborrow a LIBOR Advance),
through an Authorized Signatory, or irrevocable
telephonic notice followed immediately by written
notice (provided, however, that the Borrower's
failure to confirm any telephonic notice in writing
shall not invalidate any notice so given), the
Borrower may repay a Base Rate Advance on its Payment
Date, or prepay a Base Rate Advance without regard to
its Payment Date, and (i) reborrow all or a portion
of the principal amount thereof as a Base Rate
Advance, (ii) reborrow all or a portion of the
principal amount thereof as one or more LIBOR
Advances, or (iii) not reborrow all or any portion
of such Base Rate Advance. Upon such Payment Date
or date of repayment, such Base Rate Advance shall,
subject to the provisions hereof, be so repaid and,
as applicable, reborrowed.
(e) The aggregate amount of Base Rate
Advances to be made by
the Lenders on any day shall be in a principal amount
which is at least $1,000,000 and which is an integral
multiple of $100,000; provided, however, that such
amount may equal the unused amount of the
Commitment. The aggregate amount of LIBOR Advances
having the same Interest Period and to be made by the
Lenders on any day shall be in a principal amount
which is at least $2,500,000 and which is an integral
multiple of $100,000.
(f) The Administrative Lender shall promptly notify
the Lenders of each notice (other than with respect
to a Bid Rate Advance) received from the Borrower
pursuant to this Section. Failure of the Borrower to
give any notice in accordance with Sections 2.2(c)
and (d) hereof shall result in a repayment of any
such existing Advance on the applicable Payment Date
by a Refinancing Advance which is a Base Rate
Advance. Each Lender shall, not later than noon,
Dallas, Texas time, on the date of any Revolving
Credit Advance that is not a Refinancing Advance,
deliver to the Administrative Lender, at its
address set forth herein, such Lender's Specified
Percentage of such Revolving Credit Advance in
immediately available funds in accordance with the
Administrative Lender's instructions. Prior to 2:00
p.m., Dallas, Texas time, on the date of any
Revolving Credit Advance hereunder, the
Administrative Lender shall, subject to satisfaction
of the conditions set forth in Article 3, disburse
the amounts made available to the Administrative
Lender by the Lenders by (i) transferring such
amounts by wire transfer pursuant to the Borrower's
instructions, or (ii) in the absence of such
instructions, crediting such amounts to the
account of the Borrower maintained with the
Administrative Lender. All Revolving Credit Advances
shall be made by each Lender according to its
Specified Percentage. No Lender shall be relieved
of its obligation to fund its Specified Percentage
of any Revolving Credit Advance notwithstanding the
fact that at any time the aggregate
outstanding principal amount of all Bid Rate Advances
made by such Lender exceed its Specified Percentage
of the Commitment.
(g) Bid Rate Advances
(i) In the case of Bid Rate Advances, the
Borrower, through an Authorized Signatory,
shall give the Administrative Lender (which
shall promptly notify the Lenders) prior to
12:00 noon, Dallas, Texas time, at least one
Business Day prior to the proposed borrowing,
irrevocable written notice of its intention to
borrow a Bid Rate Advance. Each Bid Rate
Advance request shall be subject to a non-
refundable $500.00 processing fee payable to the
Administrative Lender by the Borrower regardless
of whether such Bid Rate Advance is funded.
Such notice of borrowing shall specify (i) the
requested funding date, which shall be a
Business Day, (ii) the aggregate amount of the
proposed Bid Rate Advances, (ii) the Interest
Period selected by the Borrower, provided that
no Interest Period shall extend past the
Maturity Date and (iv) any other terms
applicable thereto.
(ii) Each Lender may, if, in its sole
discretion, it elects to do so, irrevocably
offer to make one or more Bid Rate Advances to
the Borrower as part of such proposed borrowing
at a rate or rates of interest specified by such
Lender in its sole discretion, by making a
written quote to the Administrative Lender
(which shall give prompt notice thereof to
the Borrower) before 9:30 a.m., Dallas, Texas
time, on the date of such proposed borrowing,
setting forth the minimum amount and maximum
amount of each Bid Rate Advance which such
Lender would be willing to make as part
of the proposed borrowing (which amounts may
exceed such Lender's Specified Percentage of
the Commitment) and the rate or rates of
interest therefor and the Interest Period
therefor. If NationsBank of Texas, N.A. elects
to offer to make one or more Bid Rate Advances,
it shall deliver its written quote with respect
to the proposed borrowing to the Borrower prior
to the Administrative Lender's receipt of
any other Lender's written quote for such
proposed borrowing. The Administrative Lender
shall notify the Borrower of each written quote
provided by each Lender with respect to the
proposed borrowing before 10:00 a.m., Dallas,
Texas, on the date of such proposed borrowing.
If any Lender shall elect not to make such an
offer, such Lender shall so notify the
Administrative Lender before 9:30 a.m., Dallas,
Texas time, on the date of such proposed
borrowing, and such Lender shall not make any
Bid Rate Advance as part of such borrowing. If
any Lender shall fail to respond to the
Administrative Lender by such time, such Lender
shall be deemed to have elected not to make an
offer.
(iii) The Borrower shall, in turn,
before 10:30 a.m., Dallas, Texas time, on the date
of such proposed borrowing either
(A) cancel such proposed borrowing by
giving the Administrative Lender notice to
that effect, or
(B) accept one or more of the offers
made by any Lender or Lenders pursuant to
clause (ii) above, in its sole discretion,
by giving notice to the Administrative
Lender of the amount of each Bid Rate
Advance (which amount shall be equal to or
greater than the minimum amount, and
equal to or less than the maximum amount,
for which notification was given to the
Borrower by the Administrative Lender on
behalf of such Lender for such Bid Rate
Advance pursuant to clause (ii) above) to
be made by each Lender as part of
such borrowing, and reject any remaining
offers made by the Lenders pursuant to
clause (ii) above by giving the
Administrative Lender notice to that
effect.
(iv) If the Borrower notifies the
Administrative Lender that such proposed borrowing is
cancelled pursuant to clause (iii)(A) above, the
Administrative Lender shall give prompt notice
thereof to the Lenders and such borrowing shall not
be made.
(v) If the Borrower accepts one or more of
the offers made by any Lender or Lenders pursuant to
clause(iii)(B) above, the Administrative
Lender shall in turn promptly notify each Lender of the date, rate of
interest, and amount of each Bid Rate Advance and the Lender making such
Advance.
Section 2.3 Interest.
(a) On Base Rate Advances.
(i) The Borrower shall pay interest on the
outstanding unpaid principal amount of each Base Rate
Advance, from the date such Advance is made until
it is due (whether at maturity, by reason of
acceleration, by scheduled reduction, or otherwise)
or repaid, at a simple interest rate per annum
equal to the Base Rate Basis as in effect from
time to time, provided that interest on Base Rate
Advances shall not exceed the Maximum Amount. If at
any time the Base Rate Basis would exceed the Highest
Lawful Rate, interest payable on Base Rate Advances
shall be limited to the Highest Lawful Rate, but the
Base Rate Basis shall not thereafter be reduced below
the Highest Lawful Rate until the total amount
of interest accrued On such Advances equals the
amount of interest that would have accrued if the
Base Rate Basis had been in effect at all times.
(ii) Interest on each Base Rate
Advance shall be computed on the basis of a year
of 365 or 366 days, as applicable, for the number
of days actually elapsed, and shall be payable in
arrears on each Quarterly Date and on the
Maturity Date.
(b) On LIBOR Advances.
(i) The Borrower shall pay interest on the
unpaid principal amount of each LIBOR Advance,
from the date such Advance is made until it is
due (whether at maturity, by reason of
acceleration, by scheduled reduction, or
otherwise) or repaid, at a rate per annum equal
to the LIBOR Basis for such Advance. The
Administrative Lender, whose determination shall
be conclusive, shall determine the LIBOR Basis on
the second Business Day prior to the applicable
funding date and shall notify the Borrower and
the Lenders of such LIBOR Basis.
(ii) Subject to Section 11.10 hereof,
interest on each LIBOR Advance shall be
computed on the basis of a 360-day year for
the actual number of days elapsed, and shall be
payable in arrears on the applicable Payment Date and
on the Maturity Date; provided, however, that if the
Interest Period for such Advance exceeds three
months, interest shall also be due and payable in
arrears on each Quarterly Date during such
Interest Period.
(c) On Bid Rate Advances. The Borrower shall
pay interest on the outstanding unpaid principal
amount of each Bid Rate Advance at a per annum rate
equal to the interest rate agreed to by the Borrower
and the Lender making such Bid Rate Advance pursuant
to Section 2.2(g) hereof. Interest on each Bid Rate
Advance shall be computed and shall be payable at
such times as agreed upon between the Borrower
and the Lender making such Advance pursuant to
Section 2.2(g) hereof.
(d) Interest if No Notice of Selection of LIBOR
Basis or Interest Period. If the Borrower
fails to give the Administrative Lender timely
notice of its selection of a LIBOR Basis for a
LIBOR Advance, or if for any reason a determination
of a LIBOR Basis for any Advance is not timely
concluded due to the fault of the Borrower, the Base
Rate Basis shall apply to the applicable Advance. If
the Borrower fails to give the Administrative Lender
timely notice of its selection of an Interest Period
for a LIBOR Advance, a one-month Interest Period
shall apply to the applicable Advance.
(e) Interest After an Event of Default. (i) After
an Event of Default (other than an Event of
Default specified in Section 8.1(f) or (g) hereof)
and during any continuance thereof, at the option
of Determining Lenders, and (ii) after an Event of
Default specified in Section 8.1(f) or (g) hereof
and during any continuance thereof, automatically
and without any action by the Administrative Lender
or any Lender, the Obligations shall bear interest at
a rate per annum equal to the Default Rate. Such
interest shall be payable on the earlier of demand,
the Maturity Date or upon the occurrence of an Event
of Default specified in Section 8.1(f) or 8.1(g)
hereof, immediately, and shall accrue until the
earlier of (i) waiver or cure (to the satisfaction of
the Determining Lenders) of the applicable Event of
Default, (ii) agreement by the Lenders to rescind the
charging of interest at the Default Rate, or (iii)
payment in full of the Obligations. The Lenders
shall not be required to accelerate the maturity of
the Advances, to exercise any other rights or
remedies under the Loan Documents, or to give notice
to the Borrower of the decision to charge interest at
the Default Rate. The Lenders will undertake to
notify the Borrower, after the effective date, of
the decision to charge interest at the Default Rate,
but any failure to do so will not affect the
application of such rate.
Section 2.4 Fees.
(a) Commitment Fee. Subject to Section 11.10
hereof, the Borrower agrees to pay to the
Administrative Lender, for the ratable account of the
Lenders, a commitment fee on the daily average
unborrowed balance of the Commitment based on
the following schedule:
Applicability Per Annum Percentage
(i) If the Leverage Ratio is
not less than 5.0 to 1 0.3750
(ii) If the Leverage Ratio is
less than 5.0 to 1 but is not
less than 3.0 to 1 0.2500
(iii) If the Leverage Ratio is
less than 3.0 to 1 but is not
less than 2.0 to 1 0.1875
(iv) If the Leverage Ratio is
less than 2.0 to 1 0.1250
The commitment fee shall be subject to reduction
or increase, as applicable and as set forth in the table
above, on a quarterly basis according to the
performance of the Borrower as tested by the
Leverage Ratio. Except as set forth in the last
sentence hereof, any such increase or reduction in
such fee shall be effective on the third Business Day
following the date of receipt of the applicable
financial statements. If financial statements of the
Borrower setting forth the Leverage Ratio are not
received by the Administrative Lender by the date
required pursuant to Section 6.1 hereof, the
commitment fee shall be determined as if the Leverage
Ratio is not less than 5.0 to 1 until such time as
such financial statements are received. For the
last fiscal quarter of any fiscal year of the
Borrower, the Borrower may provide its unaudited
financial statements, subject only to year-end
adjustments, for the purpose of adjusting the
commitment fee. Notwithstanding anything above to
the contrary, if the compliance certificate required
to be delivered pursuant to Section 7.5(b)
hereof, prior to any proposed acquisition,
indicates that the Leverage Ratio after giving effect to the proposed
acquisition would result in an adjustment of the
commitment fee, such fee shall be increased or
decreased, as the case may be, as of the date of such
acquisition.
Such fees shall be (i) payable in arrears on each
Quarterly Date and the Maturity Date, fully earned
when due and, subject to Section 11.10 hereof,
nonrefundable when paid and (ii) subject to Section
11.10 hereof, computed on the basis of a year of 365
or 366
days, as applicable, for the actual number of days
elapsed. For purposes of calculating the commitment
fee only, (i) undrawn portions of Letters of Credit
outstanding from time to time will reduce the unused
portion of the Commitment and (ii) outstanding Bid
Rate Advances shall not reduce the unused portion of
the Commitment.
(b) Facility Fee. Subject to Section 11.10
hereof, the Borrower agrees to pay directly to each
Lender a facility fee in the amount provided for in a
facility fee letter between the Borrower and each
Lender. Such fee shall be payable on the Agreement
Date, fully earned when due and, subject to
Section 11.10 hereof, nonrefundable when paid.
(c) Administrative Fee. Subject to Section
11.10 hereof, the Borrower agrees to pay to the
Administrative Lender, for its account and not the
account of the Lenders, a quarterly administrative
fee as provided in a fee letter between the
Borrower and the Administrative Lender.
Section 2.5 Prepayment.
(a) Voluntary Prepayments. The principal amount
of any Base Rate Advance may be prepaid in full or
in part at any time, without penalty and without
regard to the Payment Date for such Advance, upon two
Business Days', and any LIBOR Advance may be prepaid,
subject to the last sentence of this Section upon
three Business Days prior telephonic notice (to be
promptly followed by written notice) by an Authorized
Signatory to the Administrative Lender.
LIBOR Advances may be voluntarily prepaid only so
long as the Borrower concurrently reimburses the
Lenders in accordance with Section 2.9 hereof. Any
notice of prepayment shall be irrevocable.
(b) Mandatory Prepayment. On or before the date
of any reduction of the Commitment, the Borrower
shall prepay applicable outstanding Advances in an
amount necessary to reduce the sum of outstanding Advances
and Reimbursement Obligations to an amount less than
or equal to the Commitment as so reduced. The
Borrower shall first prepay all Base Rate
Advances, shall thereafter prepay LIBOR Advances,
and finally prepay Bid Rate Advances. To the extent
that any prepayment requires that a LIBOR Advance
be repaid on a date other than the last day of its
Interest Period, the Borrower shall reimburse each
Lender in accordance with Section 2.9 hereof.
(c) Prepayments from Sales of Assets
and Equity. Concurrently with the receipt of Net
Cash Proceeds from the sale or disposition by
the Borrower or any Restricted Subsidiary of (i) any
(A) asset in which the Net Cash Proceeds from the
sale or disposition thereof exceeds $100,000 and (B)
assets sold or disposed of during any fiscal year in
which the aggregate Net Cash Proceeds previously
received during such fiscal year from sales or
dispositions of all assets exceeds $1,000,000, the Borrower shall
first prepay all Base Rate Advances, shall
thereafter prepay LIBOR Advances, and
finally prepay Bid Rate Advances in a principal
amount equal to (y) in the case of clause (A)
above, all Net Cash Proceeds from such sale or
disposition and (z) in the case of clause (B) above,
the amount that the aggregate Net Cash Proceeds
received during any such fiscal year exceeds
$1,000,000, or (ii) any Equity, the Borrower shall
prepay Advances in a principal amount by which 50% of
the aggregate Net Cash Proceeds received by the
Borrower and its Restricted Subsidiaries after the
Agreement Date from the sale or disposition of Equity
exceed $100,000,000.
(d) Prepayments from Issuance of Institutional
Debt. Concurrently with the receipt of Net Cash
Proceeds from the issuance of Institutional Debt by
the Borrower, the Borrower shall prepay first
all Base Rate Advances, shall thereafter prepay
LIBOR Advances, and finally prepay Bid Rate Advances
in a principal amount equal to such Net Cash
Proceeds.
(e) Prepayments, Generally. Any prepayment of
an Advance shall be accompanied by interest accrued
on the principal amount being prepaid. Any voluntary
partial prepayment of a Base Rate Advance shall be
in a principal amount which is at least
$1,000,000 and which is an integral multiple of
$100,000. Any voluntary partial prepayment of a
LIBOR Advance shall be in a principal amount which is
at least $1,000,000 and which is an integral multiple
of $100,000, and to the extent that any prepayment of
a LIBOR Advance is made on a date other than the last
day of its Interest Period, the Borrower shall
reimburse each Lender in accordance with Section 2.9
hereof. Following the Amortization Date, prepayments
shall be applied to the mandatory reductions of the
Commitment pursuant to Section 2.6(c) hereof in
inverse order.
Section 2.6 Reduction and Change of Commitment.
(a) Voluntary Reduction. The Borrower shall
have the right, upon not less than 3 Business Days'
notice (provided no notice shall be required for a
termination in whole of the Commitment) by an
Authorized Signatory to the Administrative Lender (if
telephonic, to be confirmed by telex or in writing on
or before the date of reduction or termination),
which shall promptly notify the Lenders, to
terminate or reduce the Commitment, in whole or in
part. Each partial termination shall be in an
aggregate amount which is at least $5,000,000 and
which is an integral multiple of $100,000, and no
voluntary reduction in the Commitment shall cause
any LIBOR Advance to be repaid prior to the last day
of its Interest Period. Notwithstanding anything
herein to the contrary, in no event shall the
Borrower have the right to reduce the Commitment to
an amount less than the aggregate outstanding
Reimbursement Obligations.
(b) Mandatory Reduction. The Commitment shall
be automatically reduced (i) by the amount of any
amount prepaid or required to be prepaid pursuant to
Section 2.5(b) hereof, (ii) if a Default or Event of
Default exists or would exist as a result of the
sale or disposition of assets, by the amount of
aggregate Net Cash Proceeds received by the Borrower
and its Subsidiaries after the Agreement Date from
the sale and disposition of assets referred to in
Section 2.5(c) hereof and which are required to be
used to prepay Advances as provided therein, (iii) if
a Default or Event of Default exists, by the amount
of aggregate Net Cash Proceeds received by the
Borrower and its Subsidiaries after the Agreement
Date from the sale or disposition of Equity referred
to in Section 2.5(c) hereof, and (iv) if a Default or
Event or Default exists or would exist as a
result of the issuance of Institutional Debt, by
the amount of any amount prepaid or required to
be prepaid pursuant to Section 2.5(d) hereof.
Notwithstanding anything herein to the contrary, in
no event shall the Borrower reduce the Commitment to
an amount less than the aggregate outstanding
Reimbursement Obligations.
(c) Amortization. On each Quarterly Date,
commencing on the Amortization Date, through the
last Business Day of September 2003, the
Commitment outstanding on the Amortization Date shall
automatically reduce by an amount equal to one-fourth
(or, in the case of calendar year 1998, the full
reduction percentage, and in the case of calendar
year 2003, one-third) of the percentage reduction
that the Commitment is to reduce in the calendar
year in which such Quarterly Date falls pursuant to
the table below. Notwithstanding the foregoing, on
the Maturity Date, the Commitment shall
automatically reduce to zero.
Calendar Year % Reduction
1998 2.5%
1999 11.25%
2000 17.50%
2001 25.00%
2002 25.00%
2003 18.75%
(d) General Requirements. Upon any reduction of
the Commitment pursuant to Section 2.6(b), the
Borrower shall immediately make a repayment of
applicable Advances in accordance with Section 2.5(b)
hereof. The Borrower shall reimburse each Lender for
any loss or out-of-pocket expense incurred by each
Lender in connection with any such payment, as set
forth in Section 2.9 hereof. The Borrower shall not
have any right to rescind any termination or
reduction. Once reduced, the Commitment may not be
increased or reinstated.
Section 2.7 Non-Receipt of Funds by the
Administrative Lender. Unless the Administrative
Lender shall have been notified by a Lender prior
to the date of any proposed Revolving Credit Advance
(which notice shall be effective upon receipt) that
such Lender does not intend to make the proceeds of
such Revolving Credit Advance available to the
Administrative Lender, the Administrative Lender may
assume that such Lender has made such proceeds
available to the Administrative Lender on such date,
and the Administrative Lender may in reliance upon
such assumption (but shall not be required to) make
available to the Borrower a corresponding amount.
If such corresponding amount is not in fact made
available to the Administrative Lender by such
Lender, the Administrative Lender shall be entitled
to recover such amount on demand from such Lender
(or, if such Lender fails to pay such amount
forthwith upon such demand, from the Borrower)
together with interest thereon in respect of each day
during the period commencing on the date such amount
was available to the Borrower and ending on (but
excluding) the date the Administrative Lender
receives such amount from the Lender, with interest
thereon if paid by such Lender,at a per annum rate
equal to the Federal Funds Rate, and if paid by
Borrower, at the applicable Base Rate. No Lender
shall be liable for any other Lender's failure
to fund a Revolving Credit Advance hereunder.
Section 2.8 Payment of Principal of Advances.
The Borrower agrees to pay the principal amount of the Advances to
the Administrative Lender for the account of the
Lenders as follows:
(a) End of Interest Period. The principal
amount of each Advance hereunder shall be due and
payable on its Payment Date, which principal payment
may be made by means of a Refinancing Advance.
(b) Commitment Reduction. On the date of
reduction of the Commitment pursuant to Section 2.6
hereof, including the Maturity Date, the aggregate
amount of the Advances outstanding on such date of
reduction in excess of the Commitment as reduced
minus all outstanding Reimbursement Obligations shall
be due and payable, which principal payment may not
be made by means of Refinancing Advances.
(c) Maturity Date. The principal amount of the
Advances, all accrued interest and fees thereon, and
all other Obligations, shall be due and payable in
full on the Maturity Date.
Section 2.9 Reimbursement. Whenever any Lender
shall sustain or incur any losses or reasonable out-
ofpocket expenses in connection with (a) failure by
the Borrower to borrow any LIBOR Advance or Bid Rate
Advance which is at a fixed rate after having given
notice of its intention to borrow in accordance with
Section 2.2 hereof (whether by reason of the
Borrower's election not to proceed or the non-
fulfillment of any of the conditions set forth in
Article 3 hereof), or (b) any prepayment for any
reason of any LIBOR Advance in whole or in part
(including a prepayment pursuant to Sections 2.5(c),
2.5(d) and 9.3(b) hereof), the Borrower agrees to pay
to any such Lender, upon its demand, an amount
sufficient to compensate such Lender for all such
losses and out-of-pocket expenses. Such Lender's
good faith determination of the amount of such
losses or out-of-pocket expenses, calculated
in its usual fashion, absent manifest error, shall be
binding and conclusive. Such losses shall include,
without limiting the generality of the foregoing,
lost profits and reasonable expenses incurred by such
Lender in connection with the re-employment of funds
prepaid, repaid, converted or not borrowed, converted
or paid, as the case may be. Upon request of the
Borrower, such Lender shall provide a certificate
setting forth the amount to be paid to it by the
Borrower hereunder and calculations therefor.
Section 2.10 Manner of Payment.
Each payment (including prepayments) by the
Borrower of the principal of or interest on the
Advances, fees, and any other amount owed under this
Agreement or any other Loan Document shall be made
not later than 1:00 p.m. (Dallas, Texas time) on the
date specified for payment under this Agreement to
the Administrative Lender at the Administrative
Lender's office, in lawful money of the United States
of America constituting immediately available funds.
(b) If any payment under this Agreement or any
other Loan Document shall be specified to be made
upon a day which is not a Business Day, it shall be
made on the next succeeding day which is a Business
Day, unless such Business Day falls in another
calendar month, in which case payment shall be made
on the preceding Business Day. Any extension of
time shall in such case be included in computing
interest and fees, if any, in connection with such
payment.
(c) The Borrower agrees to pay principal,
interest, fees and all other amounts due under the
Loan Documents without deduction for set-off or
counterclaim or any deduction whatsoever.
(d) Each payment by the Borrower in respect of
obligations relating to the Revolving Credit
Advance and the Letters of Credit (whether for
principal, interest, fees or otherwise) shall be
made to the Administrative Lender for the account of the Lenders
pro rata in accordance with their respective
Specified Percentages. Each payment by the Borrower
in respect of obligations related to Bid Rate
Advances (whether for principal, interest, fees or
otherwise) shall be made to the Administrative Lender
for the account of each Lender holding such Bid Rate
Advance. Notwithstanding anything in this Section
2.10(d) or any other provision of this Agreement or
any other Loan Document to the contrary, any payment
by the Borrower in respect of any Advances after
acceleration of the Advances pursuant to Section 8.2
or any monies received by the Administrative Lender
as a result of the exercise of remedies under any
Loan Documents after acceleration of the Advances
pursuant to Section 8.2 shall be distributed pro
rata to each Lender based on the percentage that the
outstanding Advances and Reimbursement Obligations
owed to such Lender bears to the aggregate Advances
and Reimbursement Obligations owed to all Lenders
after the payment of the Administrative Lender's
expenses incurred on behalf of the Lenders then due
and payable.
Section 2.11 LIBOR Lending Offices. Each Lender's
initial LIBOR Lending Office is set forth opposite
its name in Schedule 1 attached hereto. Each Lender
shall have the right at any time and from time to
time to designate a different office of itself or of
any Affiliate as such Lender's LIBOR Lending Office,
and to transfer any outstanding LIBOR Advance to such
LIBOR Lending Office. No such designation or
transfer shall result in any liability on the part of
the Borrower for increased costs or expenses
resulting solely from such designation or
transfer (except any such transfer which is made by
a Lender pursuant to Section 9.2 or 9.3 hereof,
or otherwise for the purpose of complying with
Applicable Law). Increased costs for expenses
resulting from a change in law occurring subsequent
to any such designation or transfer shall be deemed
not to result solely from such designation or
transfer.
Section 2.12 Sharing of Payments. Any Lender
obtaining a payment (whether voluntary or
involuntary, due to the exercise of any right of set-
off, or otherwise) on account of its Revolving Credit
Advances in excess of its Specified Percentage of all
payments made by the Borrower with respect to
Revolving Credit Advances shall purchase from each
other Lender such participation in the Revolving
Credit Advances made by such other Lender as shall
be necessary to cause such purchasing Lender to share
the excess payment pro rata according to Specified
Percentages with each other Lender which is not in
default of its obligations hereunder with respect to
such Revolving Credit Advance; provided, however,
that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, the
purchase shall be rescinded and the purchase price
restored to the extent of such recovery, but without
interest, provided, further that after an Event of
Default, such payments will be shared pro rata among
all Lenders based on the total amount of all
Advances outstanding. The Borrower agrees that any
Lender so purchasing a participation
from another Lender pursuant to this Section, to the
fullest extent permitted by law, may exercise
all
its rights of payment (including the right of set
off) with respect to such participation as fully as
if such Lender were the direct creditor of the
Borrower in the amount of such participation.
Section 2.13 Calculation of LIBOR Rate. The
provisions of this Agreement relating to calculation
of the LIBOR Rate are included only for the purpose
of determining the rate of interest or other amounts
to be paid hereunder that are based upon such rate,
it being understood that each Lender shall be
entitled to fund and maintain its funding of all or
any part of a LIBOR Advance as it sees fit.
Section 2.14 Booking Loans. Any Lender may
make, carry or transfer Advances at, to or for the
account of any of its branch offices or the office of
any Affiliate.
Section 2.15 Taxes.
(a) Any and all payments by the Borrower
hereunder shall be made, in accordance with Section
2.10, free and clear of and without deduction for
any and all present or future taxes, levies,
imposts, deductions, charges and withholdings,
and all liabilities with respect thereto,
excluding, in the case of each Lender and the
Administrative Lender, taxes imposed on its overall
net income, and franchise taxes imposed on it (including interest
and penalties imposed thereon), by the jurisdiction
under the laws of which such Lender or the
Administrative Lender (as the case may be) is
organized or any political subdivision thereof (all
such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower
shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder to any
Lender or the Administrative Lender, (x) the sum
payable shall be increased as may be necessary so
that after making all required deductions (including
deductions applicable to additional sums payable
under this Section 2.15) such Lender or
the Administrative Lender (as the
case may be) receives an amount equal to the sum
it would have received had no such deductions been
made, (y) the Borrower shall make such deductions
and (z) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other
authority in accordance with Applicable Law.
(b) In addition, the Borrower agrees to pay
any and all stamp and documentary taxes and any and
all other excise and property taxes, charges and
similar levies that arise from any payment made
hereunder or from the execution, delivery or
registration of,
or otherwise with respect to, this Agreement or any
other Loan Document (hereinafter referred to as
"Other Taxes").
(c) The Borrower will indemnify each Lender
and the Administrative Lender for the full amount
of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section
2.15) paid by such Lender or the Administrative
Lender (as the case
may be) and all liabilities (including penalties,
additions to tax, interest and reasonable
expenses) arising therefrom or with respect
thereto whether or not such Taxes or Other Taxes
were correctly
or legally asserted, other than penalties,
additions to tax, interest and expenses arising
as a result of gross negligence on the part of such
Lender or the Administrative Lender, provided,
however, that the Borrower shall have no obligation
to indemnify such Lender or the Administrative
Lender (i) unless notice has been given by such
Lender or the Administrative Lender, as applicable,
in a time sufficient to afford the Borrower, in good
faith, a reasonable opportunity to contest such
payment by such Lender or the Administrative Lender,
provided such opportunity to contest exists under
Applicable Law, and (ii) until such Lender or the
Administrative Lender shall have delivered to the
Borrower a certificate setting forth in reasonable
detail the basis of the Borrower's obligation to
indemnify such Lender or the Administrative Lender
pursuant to this Section 2.15. This indemnification
shall be made within 30 days from the date such
Lender or the Administrative Lender (as the case may
be) makes written demand therefor.
(d) Within 30 days after the date of any
payment of Taxes, the Borrower will furnish to the
Administrative Lender the original or a certified
copy of a receipt evidencing payment thereof. If no
Taxes are payable in respect of any payment
hereunder, the Borrower will furnish to the
Administrative Lender a certificate from each
appropriate taxing authority, or an opinion of
counsel acceptable to the Administrative Lender, in
either case stating that such payment is exempt
from or not subject to Taxes, provided, however,
that such certificate or opinion need only be given
if: (i) the Borrower makes any payment from any
account located outside the United States, or (ii)
the payment is made by a payor that is not a United
States Person. For purposes of this Section 2.15 the
terms "United States" and "United
States Person" shall have the meanings set forth in
Section 7701 of the Code.
(e) Each Lender which is not a United States Person
hereby agrees that:
(i) it shall, no later than the Agreement
Date (or, in the case of a Lender which becomes a
party hereto pursuant to Section 11.06 after the
Agreement Date, the date upon which such Lender
becomes a party hereto) deliver to the Borrower
through the Administrative Lender, with a copy to
the Administrative Lender:
(A) if any lending office is located in the
United States of America, two (2)
accurate and complete signed originals
of Internal Revenue Service Form 4224
or any successor thereto ("Form 4224"),
(B) if any lending office is located
outside the United States of America,
two (2) accurate and complete signed
originals of Internal Revenue Service
Form 1001 or any successor thereto
("Form 1001").
in each case indicating that such Lender is on the
date of delivery thereof entitled to receive payments
of
principal, interest and fees for the account of such
lending office or lending offices under this
Agreement free from withholding of United States
Federal income tax; (ii) if at any time such
Lender changes its lending office or lending offices
or selects an additional lending office it shall, at
the same time or reasonably promptly thereafter but
only to the extent the forms previously delivered by
it hereunder are no longer effective, deliver to the
Borrower through the Administrative Lender, with a
copy to the Administrative Lender, in replacement
for the forms previously delivered by it
hereunder:
(A) if such changed or additional
lending office is located in the United
States of America, two (2) accurate
and complete signed originals of Form
4224; or
(B) otherwise, two (2) accurate and
complete signed originals of Form 1001,
in each case indicating that such Lender
is on the date of delivery thereof
entitled to receive payments of
principal, interest and fees for
the account of such changed or
additional lending office under this
Agreement free from withholding of
United States Federal income tax;
(iii) it shall, before or promptly
after the occurrence of any event
(including the passing of time but
excluding any event mentioned in clause
(ii) above) requiring a change in the
most recent Form 4224 or Form 1001
previously delivered by such Lender
and if the delivery of the same be
lawful, deliver to the Borrower through
the Administrative Lender with a copy to
the Administrative Lender, two (2)
accurate and complete original signed
copies of Form 4224 or Form 1001
in replacement for the forms previously
delivered by such Lender; and
(iv) it shall, promptly upon the request of
the Borrower to that effect, deliver to the
Borrower such other forms or similar
documentation as may be required from time to
time by any applicable law, treaty, rule or
regulation in order to establish such Lender's
tax status for withholding purposes.
(f) Without prejudice to the survival of any
other agreement of the Borrower hereunder, the
agreements and obligations of the Borrower contained
in this Section 2.15 shall survive the payment in
full of principal and interest hereunder.
(g) Any Lender claiming any additional amounts
payable pursuant to this Section 2.15 shall use
its reasonable best efforts (consistent with its
internal policy and legal and regulatory
restrictions) to change the jurisdiction of its
lending office, if the making of such a change would
avoid the need for, or reduce the amount of, any
such additional amounts which may thereafter
accrue and would not, in the sole judgment of such
Lender, be otherwise disadvantageous to such Lender.
(h) Each Lender (and the Administrative Lender
with respect to payments to the Administrative Lender
for its own account) agrees that (i) it will take
all reasonable actions by all usual means to
maintain all exemptions, if any, available to it
from United States withholding taxes (whether
available by treaty, existing administrative waiver,
by virtue of the location of any Lender's lending
office) and (ii) otherwise cooperate with the
Borrower to minimize amounts payable by the Borrower
under this Section 2.15; provided, however, the
Lenders and the Administrative Lender shall not be
obligated by reason of this Section 2.15(h) to
contest the payment of any Taxes or Other Taxes
or to disclose any information regarding its tax
affairs or tax computations
or reorder its tax or other affairs or tax or other planning.
Section 2.16 Letters of Credit.
(a) The Letter of Credit Facility. The
Borrower may request
the Issuing Bank, on the terms and conditions
hereinafter set forth, to issue, and the Issuing Bank
shall, if so requested, issue, letters of credit
(the "Letters of Credit") for the account of the
Borrower from time to time on any Business Day from
the date of the initial Advance until the Maturity
Date in an aggregate maximum amount (assuming
compliance with all conditions to drawing) not to
exceed at any time outstanding the lesser of (i)
$100,000,000 (the "Letter of Credit Facility"), and
(ii) the difference of (A) the Commitment minus
(B) the aggregate principal amount of Advances
then outstanding. No Letter of Credit shall have an
expiration date (including all rights of renewal)
later than the earlier of (i) the Maturity Date or
(ii) one year after the date of issuance thereof.
Immediately upon the issuance of each Letter of
Credit, the Issuing Bank shall be deemed to have sold
and transferred to each Lender, and each Lender shall
be deemed to have purchased and received from the
Issuing Bank, in each case irrevocably and without
any further action by any party, an undivided
interest and participation in such Letter of Credit,
each drawing thereunder and the obligations of the
Borrower under this Agreement in respect thereof in
an amount equal to the product of (i) such
Lender's Specified Percentage of the Commitment times
(ii) the maximum amount available to be drawn under
such Letter of Credit (assuming compliance with all
conditions to drawing). Within the limits of the
Letter of Credit Facility, and subject to the
limits referred to above, the Borrower may
request the issuance of Letters of Credit under
this Section 2.16(a), repay any Advances resulting
from drawings thereunder pursuant to Section
2.16(c) and request the issuance of additional
Letters of Credit under this Section 2.16(a).
During the term of this Agreement, provided that no
Default or Event of Default then exists and subject
to the same conditions for the issuance of a Letter
of Credit set forth in Section 3.2 hereof, the
Issuing Bank may at Borrowerns option, automatically
renew any expiring Letters of Credit for a period
of time not to exceed the earlier of (x)five (5) days
prior to the Maturity Date or (y) one year after the
date of issuance thereof.
(b) Request for Issuance. Each Letter of Credit
shall be issued upon notice, given not later than
11:00 A.M. (Dallas time) on the third Business Day
prior to the date of the proposed issuance of such
Letter of Credit, by the Borrower to the Issuing
Bank, which shall give to the Administrative Lender
and each Lender prompt notice thereof by telex,
telecopier or cable. Each Letter of Credit shall
be issued upon notice given in accordance with the
terms of any separate agreement between the Borrower
and the Issuing Bank in form and substance reasonably
satisfactory to the Borrower and the Issuing Bank
providing for the issuance of Letters of Credit
pursuant to this Agreement and containing terms and
conditions not inconsistent with this Agreement (a
"Letter of Credit Agreement"), provided that if
any such terms and conditions are inconsistent
with this Agreement, this Agreement shall
control.
Each such notice of issuance of a Letter of Credit (a
"Notice of Issuance") shall be by telex, telecopier
or cable, specifying therein, the requested (A) date
of such issuance (which shall be a Business Day),
(B) maximum amount of such Letter of Credit, (C)
expiration date of such Letter of Credit, (D) name
and address of the beneficiary of such Letter of
Credit, (E) form of such Letter of Credit and (F)
such other information as shall be required pursuant
to the relevant Letter of Credit Agreement. If the
requested terms of such Letter of Credit are
acceptable to the Issuing Bank in its reasonable
discretion, the Issuing Bank shall, subject to
this Section 2.16(b), upon fulfillment of the
applicable conditions set forth in Article 3 hereof,
make such Letter of Credit available to the Borrower
at its office referred to in Section 11.1 or as
otherwise agreed with the Borrower in connection
with such issuance.
(c) Drawing and Reimbursement. The payment by
the Issuing Bank of a draft drawn under any Letter of
Credit shall constitute for all purposes of this
Agreement the making by the Issuing Bank of a
Revolving Credit Advance, which shall bear interest
at the applicable Base Rate Basis, in the amount of
such draft (but without any requirement for
compliance with the conditions set forth in Article
3 hereof). In the event that a drawing under any
Letter of Credit is not reimbursed by the Borrower by
11:00 A.M. (Dallas time) on the first Business Day
after such drawing, the Issuing Bank shall promptly
notify Administrative Lender and each other Lender.
Each such Lender shall, on the first Business Day
following such notification, make an Revolving Credit
Advance, which shall bear interest at the applicable
Base Rate Basis, and shall be used to repay the
applicable portion of the Issuing Bank's Revolving
Credit Advance with respect to such Letter of
Credit, in an amount equal to the amount of its
participation in such drawing for application to
reimburse the Issuing Bank (but without any
requirement for compliance with the applicable
conditions set forth in Article 3 hereof) and
shall make available to the Administrative
Lender for the account of the Issuing Bank, by
deposit at the Administrative Lender's office, in
same day funds, the amount of such Revolving Credit
Advance. In the event that any Lender fails to
make available to the Administrative Lender for the
account of the Issuing Bank the amount of such
Revolving Credit Advance, the Issuing Bank shall be
entitled to recover such amount on demand from such
Lender together with interest thereon at a rate per
annum equal to the lesser of (i) the Highest Lawful
Rate or (ii) the Federal Funds Rate.
(d) Increased Costs. If any change in any law
or regulation or in the interpretation thereof by
any court or administrative or governmental authority
charged with the administration thereof shall either
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against
letters of credit or guarantees issued by, or assets
held by, or deposits in or for the account of, the
Issuing Bank or any Lender or (ii) impose on the
Issuing Bank or any Lender any other condition
regarding this Agreement or such Lender or any Letter
of Credit, and the result of any event referred to
in the preceding clause (i) or (ii) shall be, in the
reasonable opinion of the Issuing Bank or any Lender,
to increase the cost to the Issuing Bank of issuing
or maintaining any Letter of Credit or to any Lender
of purchasing any participation therein or making any
Advance pursuant to Section 2.16(c) ("Increased
Letter of Credit Costs"), then, upon demand by the
Issuing Bank or such Lender, the Borrower shall,
subject to Section 11.10 hereof, pay to the Issuing
Bank or such Lender, from time to time as specified
by the Issuing Bank or such Lender, additional
amounts that shall be sufficient to compensate the
Issuing Bank or such Lender for such Increased Letter
of Credit Costs. Notwithstanding the foregoing, any
demand for Increased Letter of Credit Costs shall
not include any Letter of Credit costs with respect
to any period more than 180 days prior to the date
that the Issuing Bank or any Lender gives notice to
the Borrower of such Increased Letter of Credit
Costs unless the effective date of the condition
which results in the right to received Increased
Letter of Credit Costs is retroactive (the "Increased
Letter of Credit Costs Retroactive Effective
Date"). If any Increased Letter of Credit Costs
has an Increased Costs Letter of Credit
Retroactive Effective Date and the Issuing Bank or
any Lender demands compensation within 180 days after
the date setting the Increased Letter of Credit Costs
Effective Date (the "Increased Letter of Credit Costs
Set Date"), the Issuing Bank or such Lender, as
appropriate, shall have the right to receive
such Increased Letter of Credit Costs from the
Increased Letter of Credit Retroactive Effective
Date. If the Issuing Bank or a Lender does not
demand such Increased Letter of Credit Costs within
180 days after the Increased Letter of Credit Costs
Set Date, the Issuing Bank or such Lender, as
appropriate, may not receive payment of Increased
Letter of Credit Costs with respect to any period
more than 180 days prior to such demand. A
certificate as to the amount of such increased cost,
submitted to the Borrower by the Issuing Bank or
such Lender, shall include in reasonable detail the
basis for the demand for additional compensation and
shall be conclusive and binding for all purposes,
absent demonstrable error. The obligations of the
Borrower under this Section 2.16(d) shall survive
termination of this Agreement. The Issuing Bank or
any Lender claiming any additional compensation under
this Section 2.16(d) shall use reasonable efforts
(consistent with legal and regulatory restrictions)
to reduce or eliminate any such additional
compensation which may thereafter accrue and which
efforts would not, in the sole discretion of the
Issuing Bank or such Lender, be otherwise
disadvantageous.
(e) Obligations Absolute. The obligations of the
Borrower under this Agreement with respect to any
Letter of Credit, any Letter of Credit Agreement and
any other agreement or instrument relating to any
Letter of Credit or any Advance pursuant to Section
2.16(c) shall be unconditional and irrevocable, and
shall be paid strictly in accordance with the terms
of this Agreement, such Letter of Credit Agreement
and such other agreement or instrument under all
circumstances, including, without limitation,
the following circumstances:
(i) any lack of validity or enforceability
of this Agreement, any other Loan Document, any
Letter of Credit Agreement, any Letter of Credit
or any other agreement or instrument relating
thereto (collectively, the "L/C Related
Documents");
(ii) any change in the time, manner or
place of payment of, or in any other term of,
all or any of the Obligations of the Borrower in
respect of the Letters of Credit or any
Revolving Credit Advance pursuant to Section
2.16(c) or any other amendment or waiver of or
any consent to departure from all or any of the
L/C Related Documents;
(iii) the existence of any claim, set- off,
defense or other right that the Borrower may have
at any time against any
beneficiary or any transferee of a Letter of
Credit (or any Persons for whom any such
beneficiary or any such transferee may be
acting), the Issuing Bank, any Lender or any
other Person, whether in connection with this
Agreement, the transactions contemplated hereby
or by the L/C Related Documents or any unrelated
transaction;
(iv) any statement or any other document
presented under a Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or
inaccurate in any respect, except to the extent that
any payment by the Issuing Bank against any such
statement or other document shall be as a result of
the Issuing Bank's gross negligence or willful
misconduct;
(v) payment by the Issuing
Bank under a Letter of Credit against
presentation of a draft or certificate that does
not comply with the terms of the Letter of
Credit, except for any payment made upon the
Issuing Bank's gross negligence or willful
misconduct;
(vi) any exchange, release or non-perfection of any
Collateral, or any release or amendment or waiver
of or consent to departure from any Subsidiary
Guaranty or any other guarantee, for all or any of
the Obligations of the Borrower in respect of the
Letters of Credit or any Revolving Credit Advance
pursuant to Section 2.16(c); or
(vii) any other circumstance or
happening whatsoever, whether or not similar to any
of the foregoing, including, without limitation, any
other circumstance that might otherwise constitute
a defense available to, or a discharge of, the
Borrower or a guarantor, other than the Issuing's
Bank gross negligence or wilful misconduct.
(f) Compensation for Letters of Credit.
(i) Credit Fees. Subject to Section 11.9
hereof, the Borrower shall pay to the
Administrative Lender for the account of each
Lender a credit fee (which shall be payable quarterly
in arrears on each Quarterly Date and on the
Maturity Date) on the average daily amount available
for drawing under all outstanding Letters of Credit
(computed, subject to Section 11.10 hereof, on the
basis of a 365-day year for the actual number of
days elapsed) at the following per annum
percentages, applicable in the following situations:
Applicability Percentage
(i) If the Leverage Ratio is not
less than 5.0 to 1 1.2500
(ii) If the Leverage Ratio is
less than 5.0 to 1 but is not
less than 4.5 to 1 1.2500
(iii) If the Leverage Ratio is
less than 4.5 to 1 but is not
less than 4.0 to 1 0.7500
(iv) If the Leverage Ratio is
less than 4.0 to 1 but is not
less than 3.5 to 1 0.6250
(v) If the Leverage Ratio is
less than 3.5 to 1 but is not
less than 3.0 to 1 0.5000
(vi) If the Leverage Ratio is
less than 3.0 to 1 but is not
less than 2.0 to 1 0.4375
(vii) If the Leverage Ratio is
less than 2.0 to 1 0.3750
(ii) Adjustment of Credit Fee. The credit fee
payable in respect of the Letters of Credit shall be
subject to reduction or increase, as applicable and
as set forth in the table in (i) above, on a
quarterly basis according to the performance of the
Borrower as tested by the Leverage Ratio. Except as
set forth in the last sentence hereof, any such
increase or reduction in such fee shall be effective
on the third Business Day following the date of
receipt of the applicable financial statements. If
financial statements of the Borrower setting forth
the Leverage Ratio are not received by the
Administrative Lender by the date required
pursuant to Section 6.1 hereof, the fee payable in
respect of the Letters of Credit shall be determined as if the Leverage
Ratio is not less than 5.0 to 1 until such time as such
financial statements are received. For the last
fiscal quarter of any fiscal year of the Borrower,
the Borrower may provide its unaudited financial
statements, subject only to year-end adjustments, for
the purpose of adjusting the Letter of Credit fee.
Notwithstanding anything above to the contrary, if
the compliance certificate required to be delivered
pursuant to Section 7.5(b) hereof, prior to
any proposed acquisition, indicates that the
Leverage Ratio after giving effect to the proposed
acquisition would result in an adjustment of the
Letter of Credit fee, such fee shall be increased
or decreased, as the case may be, as of the date of
such acquisition.
(iii) Issuance Fee. Subject to
Section 11.10 hereof, the Borrower shall pay to
the Administrative Lender, for the sole account
of the Issuing Bank, an issuance fee of $500 on
the date of issuance of each Letter of Credit.
(g) L/C Cash Collateral Account.
(i) Upon the occurrence of an Event
of Default and demand by the
Administrative Lender pursuant to Section
8.2(c), other than an Event of Default pursuant
to Section 8.1(f) or 8.1(g) hereof upon such
event the referenced sums will become immediately
due and payable without further action by the
Administrative Lender, the Borrower will promptly
pay to the Administrative Lender in
immediately available funds an amount
equal to 100% of the maximum amount then
available to be drawn under the Letters of
Credit then outstanding. Any amounts so received
by the Administrative Lender shall be deposited
by the Administrative Lender in a deposit account
maintained by the Issuing Bank (the "L/C Cash
Collateral Account").
(ii) As security for the payment of all
Reimbursement Obligations and for any other
Obligations, the Borrower hereby grants,
conveys, assigns, pledges, sets over and
transfers to the Administrative Lender (for the
benefit of the Issuing Bank and
Lenders), and creates in the Administrative
Lender's favor (for the benefit of the Issuing
Bank and Lenders) a Lien in, all money,
instruments and securities at any time held in
or acquired in connection with the L/C Cash
Collateral Account, together with all proceeds
thereof. The L/C Cash Collateral Account shall
be under the sole dominion and control of the
Administrative Lender and the Borrower shall
have no right to withdraw or to cause the
Administrative Lender to withdraw any funds
deposited in the L/C Cash Collateral Account
except as otherwise provided in Section
2.16(g)(iii). At any time and from time to
time, upon the Administrative Lender's request,
the Borrower promptly shall execute and deliver
any and all such further instruments and
documents, including UCC financing statements,
as may be necessary, appropriate or desirable in
the Administrative Lender's judgment to obtain
the full benefits (including perfection and
priority) of the security interest created or
intended to be created by this paragraph
(ii) and of the rights and powers herein granted.
The Borrower shall not create or suffer to exist any
Lien on any amounts or investments held in the L/C
Cash Collateral Account other than the Lien granted
under this paragraph (ii) and Liens arising by
operation of Law and not by contract which secure
amounts not yet due and payable.
(iii) The Administrative Lender shall (A)
apply any funds in the L/C Cash Collateral
Account on account of Reimbursement Obligations
when the same become due and payable if and to the
extent that the Borrower shall fail directly to pay
such Reimbursement Obligations, (B) after the
Maturity Date, apply any proceeds remaining in the
L/C Cash Collateral Account first to pay any unpaid
Obligations then outstanding hereunder and then to
refund any remaining amount to the Borrower, and (C)
provided no Default or Event of Default shall be in
existence, return any funds in the L/C Cash
Collateral Account to the Borrower.
(iv) The Borrower, no more than once in any
calendar month, may direct the Administrative
Lender to invest the funds held in the L/C Cash
Collateral Account (so long as the aggregate
amount of such funds exceeds any relevant minimum
investment requirement) in (A) direct
obligations of the United States or any
agency thereof, or obligations guaranteed by
the United States or any agency thereof and (B)
one or more other types of investments permitted
by the Determining Lenders, in each case with
such maturities as the Borrower, with the consent
of the Determining Lenders, may specify, pending
application of such funds on account of
Reimbursement Obligations or on account of other
Obligations, as the case may be. In the absence
of any such direction from the Borrower, the
Administrative Lender shall invest the funds held
in the L/C Cash Collateral Account (so long as
the aggregate amount of such funds
exceeds any relevant minimum investment
requirement) in one or more types of investments
with the consent of the Determining Lenders with
such maturities as the Borrower, with the
consent of the Determining Lenders, may specify,
pending application of such funds on account of
Reimbursement Obligations or on account of other
Obligations, as the case may be. All such
investments shall be made in the Administrative
Lender's name for the account of the Lenders.
The Borrower recognizes that any losses or taxes
with respect to such investments shall be borne
solely by the Borrower, and the Borrower agrees
to hold the Administrative Lender and the Lenders
harmless from any and all such losses and taxes.
Administrative Lender may liquidate any
investment held in the L/C Cash Collateral Account in order
to apply the proceeds of such investment on
account of the Reimbursement Obligations (or
on account of any other Obligation then due and
payable, as the case may be) without regard to
whether such investment has matured and without
liability for any penalty or other fee incurred
(with respect to which the Borrower hereby agrees
to reimburse the Administrative Lender) as a
result of such application.
(v) The Borrower shall pay to the
Administrative Lender the fees customarily
charged by the Issuing Bank with respect to the
maintenance of accounts similar to the L/C Cash
Collateral Account in an amount not to exceed
$1,000 in aggregate per calendar year.
ARTICLE 3
Conditions Precedent
Section 3.1 Conditions Precedent to
Closing and the Initial Advance and the Letter of Credit. The
obligation of each Lender to sign this Agreement and
to make the initial Advance and the obligation of the
Issuing Bank to issue the initial Letter of Credit is
subject to receipt by the Administrative Lender of
each of the following, in form and substance
satisfactory to the Administrative Lender, with a
copy (except for the notes) for each Lender:
(a) a loan certificate of the Borrower
certifying as to the accuracy of its representations
and warranties in the Loan Documents, certifying that
no Default or Material Adverse Effect, except as
listed in Schedule 11 hereto, has occurred since the
last financial statements delivered to the Lenders
prior to the Agreement Date, certifying Borrower is
in compliance with all covenants in the Agreement,
and including a certificate of incumbency with
respect to each Authorized Signatory, and
including (i) a copy of the Articles of Incorporation
of the Borrower, certified to be true, complete and
correct by the secretary of state of its state of
incorporation, (ii) a copy of the By-Laws of the
Borrower, as in effect on the Agreement Date, (iii) a
copy of the resolutions of the Borrower
authorizing it to execute, deliver and perform
this Agreement, the Revolving Credit Notes, the Bid
Rate Notes, and the other Loan Documents to which it
is a party, and (iv) a copy of a certificate of
good standing and a certificate of existence for
its state of incorporation and each state in which
it is or should be qualified to do business;
(b) a certificate of an officer acceptable to
the Lenders of each Restricted Subsidiary,
certifying as to the incumbency of the officers
signing the Loan Documents to which it is a party,
and including (i) a copy of its Articles of
Incorporation, certified as true, complete and
correct by the secretary of state of its state of
incorporation, (ii) a copy of its By-Laws, as in
effect on the Agreement Date, (iii) a copy of the
resolutions authorizing it to execute, deliver and
perform the Loan Documents to which it is a party,
and (iv) a copy of a certificate of good standing and
a certificate of existence for its state of
incorporation and each state in which it is or
should be qualified to do business;
(c) duly executed Revolving Credit Notes,
payable to the order of each Lender and in an amount for
each Lender equal to its Specified Percentage of the Commitment;
(d) duly executed Bid Rate Notes, payable to
the order of each Lender in the principal amount of $300,000,000;
(e) a duly executed and completed Borrower
Pledge Agreement, dated as of the Agreement Date,
granting the Lenders a lien and security interest in
(i) the Pledged Stock owned directly by the Borrower
and (ii) the Holdings Note;
(f) duly executed and completed
Subsidiary Pledge Agreements, dated as of the
Agreement Date, granting the Lenders a lien and
security interest in the (i) Pledged Stock owned
directly by Holdings, Radio Licenses, Television
Licenses, Metroplex Licenses and CCR Houston-
Nevada, and (ii) the Intercompany Notes (other than
the Holdings Note);
(g) the Pledged Stock, together with stock powers
duly executed in blank;
(h) the Intercompany Notes, duly endorsed;
(i) a duly executed and completed Subsidiary
Guaranty, dated as of the Agreement Date
executed by Holdings, Management, Memphis,
Radio Licenses, Television Licenses, Metroplex
Licenses, Radio, Television, Metroplex, CCRE, CCR
Houston-Nevada and Productions;
(j) an opinion of counsel and of FCC counsel to
the Borrower and its Restricted Subsidiaries
addressed to the Lenders and in form and substance
satisfactory to the Lenders, dated the Agreement
Date;
(k) copies of insurance binders or certificates
covering the assets of the Borrower and its
Subsidiaries, and meeting the requirements of Section
5.5 hereof;
(l) reimbursement for Administrative Lender for
Special Counsel's reasonable fees and expenses
rendered through the date hereof;
(m) evidence that all corporate proceedings of
the Borrower and its Restricted Subsidiaries taken in
connection with the transactions contemplated by this
Agreement and the other Loan Documents shall be
reasonably satisfactory in form and substance to the
Lenders and Special Counsel; and the Lenders shall
have received copies of all documents or other
evidence which the Administrative Lender, Special
Counsel or any Lender may reasonably request in
connection with such transactions;
(n) copies of the following consolidated and
consolidating financial statements for the Borrower
and its Subsidiaries, as of and for the period ended
June 30, 1995: (i) consolidated and consolidating
balance sheets as of the end of such period, and (ii)
consolidated and consolidating statements of income
and changes in cash for such period; which financial
statements shall set forth in comparative form
figures for the corresponding periods in the
previous fiscal year, all in reasonable detail
and certified by an Authorized Signatory to the best
of his knowledge to be complete and correct and
prepared in accordance with GAAP (other than
footnotes thereto), subject to year-end adjustment;
(o) the facility fee for the account of each Lender
as required pursuant to Section 2.4(b) hereof;
(p) all Indebtedness owing by the Borrower
under the Existing Credit Agreement shall have been
refinanced in full; and
(q) in form and substance satisfactory to the
Lenders and Special Counsel, such other
documents, instruments and certificates
as the Administrative Lender or any Lender may
reasonably require in connection with the
transactions contemplated hereby, including
without limitation the status, organization or
authority of the Borrower or any Restricted
Subsidiary, and the enforceability of and security
for the Obligation.
Section 3.2 Conditions Precedent to
All Advances and Letters of Credit. The obligation
of each Lender to make each Advance (including the
initial Advance) and the obligation of the Issuing
Bank to issue each Letter of Credit (including the
initial Letter of Credit) hereunder is subject to
fulfillment of the following conditions immediately
prior to or contemporaneously with each such
Advance or issuance:
(a) With respect to Advances (other than
Refinancing Advances that are Refinancing Advances
of Revolving Credit Advances) and each issuance of
a Letter of Credit, all of the representations
and warranties of the Borrower under this Agreement,
which, pursuant to Section 4.2 hereof, are made
at and as of the time of such Advance or
issuance, shall be true and correct at such time
in all material respects, both before and after
giving effect to the application of the proceeds of
the Advance or issuance;
(b) The incumbency of the Authorized Signatories
shall be as stated in the certificate of
incumbency delivered in the Borrower's loan
certificate pursuant to Section 3.1(a) or as
subsequently modified and reflected in a certificate
of incumbency delivered to the Administrative
Lender. The Lenders may, without waiving this
condition, consider it fulfilled and a representation
by the Borrower made to such effect if no
written notice to the contrary, dated on or before
the date of such Advance or issuance, is received by
the Administrative Lender from the Borrower prior to
the making of such Advance or issuance;
(c) There shall not exist a Default hereunder,
with respect to Advances (other than Refinancing
Advances that are Refinancing Advances of Revolving
Credit Advances) and with respect to issuance of each
Letter of Credit, or an Event of Default, with
respect to any Refinancing Advance, and, with respect
to each Advance (other than a Refinancing Advance
that is a Refinancing Advances of a Revolving Credit
Advance) and with respect to issuance of each
Letter of Credit, the Administrative Lender shall
have received written or telephonic certification
thereof by an Authorized Signatory (which
certification, if telephonic, shall be followed
promptly by written certification);
(d) The aggregate Advances and amount available for
draws under Letters of Credit, after giving effect to
such proposed Advance or Letter of Credit, shall
not exceed the maximum principal amount then
permitted to be outstanding hereunder; and
(e) The Administrative Lender shall have
received all such other certificates, reports,
statements or other documents as the Administrative
Lender or any Lender may reasonably request.
Each request by the Borrower to the
Administrative Lender or the Issuing Bank, as
appropriate, for an Advance or the issuance of a
Letter of Credit shall constitute a representation
and warranty by the Borrower as of the date of the
making of such Advance or the issuance of such
Letter of Credit that all the conditions
contained in this Section 3.2 have been satisfied.
ARTICLE 4
Representations and Warranties
Section 4.1 Representations and Warranties.
The Borrower hereby represents and warrants to each
Lender as follows:
(a) Organization; Power; Qualification. As of
the Agreement Date, (i) the respective jurisdictions
of incorporation and percentage ownership by the
Borrower or another Subsidiary of the Subsidiaries
listed on Schedule 7 are true and correct and (ii)
all Subsidiaries are Restricted Subsidiaries. Each
of the Borrower and its Restricted Subsidiaries is a
corporation or partnership duly organized, validly
existing and in good standing under the laws of its
state of organization. Each of the Borrower
and its Restricted Subsidiaries has the corporate or
organizational power and authority to own its
properties and to carry on its business as now being
and hereafter proposed to be conducted. Each of
the Borrower and its Restricted Subsidiaries is
duly qualified, in good standing and authorized to
do business in each jurisdiction in which the
character of its properties or the nature of
its business requires such qualification or
authorization.
(b) Authorization. The Borrower has corporate
power and has taken all necessary corporate action to
authorize it to borrow hereunder. Each of the
Borrower and its Restricted Subsidiaries has
corporate power and has taken all necessary corporate
action to execute, deliver and perform the Loan Documents to
which it is party in accordance with the terms
thereof, and to consummate the transactions
contemplated thereby. Each Loan Document has been
duly executed and delivered by the Borrower or the
Restricted Subsidiary executing it. Each of the Loan
Documents to which the Borrower and its Restricted
Subsidiaries are party is a legal, valid and binding
respective obligation of the Borrower or the
Restricted Subsidiary, as applicable, enforceable in
accordance with its terms, subject, to enforcement of
remedies, to the following qualifications: (i)
equitable principles generally, and (ii)
bankruptcy, insolvency, liquidation, reorganization,
reconstruction and other similar laws affecting
enforcement of creditors' rights generally (insofar
as any such law relates to the bankruptcy,
insolvency or similar event of the Borrower or any
Restricted Subsidiary).
(c) Compliance with Other Loan Documents and
Contemplated Transactions. The execution, delivery
and performance by the Borrower and its Restricted
Subsidiaries of the other Loan Documents to which
they are respectively a party, and the consummation
of the transactions contemplated thereby, do not and
will not (i) require any consent or approval
not already obtained, (ii) violate any Applicable
Law, (iii) conflict with, result in a breach of, or
constitute a default under the articles of
incorporation or by-laws of the Borrower or any
Restricted Subsidiary, or under any Necessary
Authorization, indenture, agreement or other
instrument, to which the Borrower or any Restricted
Subsidiary is a party or by which they or their
respective properties may be bound, or (iv) result in
or require the creation or imposition of any Lien
upon or with respect to any property now owned or
hereafter acquired by the Borrower or any Restricted
Subsidiary, except Permitted Liens.
(d) Business. The Borrower and its Restricted
Subsidiaries are engaged solely in the communications
and media broadcasting business and activities
related thereto (including, without limitation,
radio and television broadcasting, print,
productions, billboards, power transmission
rentals and sales and real property rentals and
sales, but only to the extent that such real property
rentals and sales arise from the lease or sale of
properties previously used by the Borrower or its
Restricted Subsidiaries in the communications and
media broadcasting business).
(e) Licenses, etc. All Necessary Authorizations
have been duly authorized and obtained, and are in
full force and effect. The Borrower and its
Restricted Subsidiaries are and will continue to
be in compliance in all material respects with all
provisions thereof. No Necessary Authorization is
the subject of any pending or, to the best of the
Borrower's knowledge, threatened challenge or
revocation.
(f) Compliance with Law. The Borrower and its
Restricted Subsidiaries are in compliance with all
Applicable Laws, the violation of which could
reasonably be expected to have a Material
Adverse Effect. The Borrower and its Restricted
Subsidiaries have duly and timely filed all
reports, statements and filings that are required to
be filed by any of them under the Communications Act,
and are in all material respects in compliance
therewith, including without limitation the rules
and regulations of the FCC relating to the operation
of television and radio stations. The Borrower and
its Restricted Subsidiaries have obtained all
appropriate approvals and consents of, and have made
all filings with, the FCC in connection with the
acquisition and ownership of each of their television
and radio stations. No Person has filed or submitted
any document or instrument to the FCC challenging or
contesting the FCC order approving any assignment
of a FCC license to the Borrower or any of its
Restricted Subsidiaries.
(g) Title to Properties. The Borrower and its
Restricted Subsidiaries have good and indefeasible title to, or
a valid leasehold interest in, all of their material
assets. None of their assets are subject to any
Liens, except Permitted Liens. No financing
statement or other Lien filing (except relating to
Permitted Liens) is on file in any state or
jurisdiction that names the Borrower or any of its
Restricted Subsidiaries as debtor or covers (or
purports to cover) any assets of the Borrower or any
of its Restricted Subsidiaries. The Borrower and its
Restricted Subsidiaries have not signed any such
financing statement or filing, nor any security
agreement authorizing any Person to file any such
financing statement or filing.
(h) Litigation. Except as reflected on Schedule 3
hereto, there is no action, suit, investigation or
proceeding pending against, or, to the best of the
Borrower's knowledge, threatened against the Borrower
or any of its Restricted Subsidiaries, or in any
other manner relating directly and materially
adversely to the Borrower, any of its Restricted
Subsidiaries, or any of their material properties, in
any court or before any arbitrator of any kind or
before or by any governmental body the result of
which could reasonably be expected to require the
payment of money by the Borrower or any Restricted Subsidiary in an
amount of $500,000 or more in any one such action,
suit or proceeding or $2,500,000 or more in the
aggregate for all such actions, suits or proceedings.
(i) Taxes. All federal, state and other tax
returns of the Borrower and its Restricted
Subsidiaries required by law to be filed have been
duly filed and all federal, state and other taxes,
assessments and other governmental charges or levies
upon the Borrower, its Restricted Subsidiaries or any
of their properties, income, profits and assets,
which are due and payable, have been paid, unless
the same are being diligently contested in good
faith by appropriate proceedings, with adequate
reserves established therefor, and no Lien (other
than a Permitted Lien) has attached and no
foreclosure, distraint, sale or similar proceedings
have been commenced. The charges, accruals and
reserves on the books of the Borrower and its
Restricted Subsidiaries in respect of their taxes
are, in the judgment of the Borrower, adequate.
(j) Financial Statements; Material
Liabilities. The Borrower has furnished or caused to
be furnished to the Lenders copies of its December
31, 1994, financial statements, which are prepared
in good faith and complete in all material respects
and present fairly in accordance with GAAP the
financial position of the Borrower and its
Restricted Subsidiaries as at such dates and the
results of operations for the periods then ended,
subject to normal year-end adjustments. The
Borrower and its Restricted Subsidiaries have no
material liabilities, contingent or otherwise,
nor material losses, except as disclosed in writing to the Lenders
prior to the Agreement Date.
(k) No Adverse Change. Since December 31, 1994,
no event or circumstances has occurred or arisen that
could reasonably be expected to have a Material
Adverse Effect except as listed on Schedule 11
hereto.
(l) ERISA. None of the Borrower or its
Controlled Group maintains or contributes to any
Plan other than those disclosed to the
Administrative Lender in writing. Each such Plan is
in compliance in all material respects with
the applicable provisions of ERISA, the Code, and any other
applicable Federal or state law, rule or
regulation. With respect to each Plan of the
Borrower and each member of its Controlled Group
(other than a Multiemployer Plan), all reports
required under ERISA or any other Applicable Law to
be filed with any governmental authority, the failure
of which to file could reasonably result in
liability of the Borrower or any member of its
Controlled Group in excess of $100,000, have been
duly filed. All such reports are true and
correct in all material respects as of the date
given. No such Plan of the Borrower or any member
of its Controlled Group has been terminated nor has
any accumulated funding deficiency (as defined in
Section 412(a) of the Code) been incurred (without
regard to any waiver granted under Section 412 of the
Code), nor has any funding waiver from the Internal
Revenue Service been received or requested. None of
the Borrower or any member of its Controlled Group
has failed to make any contribution or pay any amount
due or owing as required by Section 412 of the Code
or Section 302 of ERISA or the terms of any such
Plan prior to the due date under Section 412 of the
Code and Section 302 of ERISA. There has been no
ERISA Event or any event requiring disclosure
under Section 4041(c)(3)(C), 4068(f), 4063(a) or
4043(b) of ERISA with respect to any Plan or trust of
the Borrower or any member of its Controlled
Group since the effective date of ERISA. The
value of the assets of each Plan (other than a
Multiemployer Plan) of the Borrower and each member
of its Controlled Group equaled or exceeded the
present value of the benefit liabilities, as defined
in Title IV of ERISA, of each such Plan as of the
most recent valuation date using Plan actuarial
assumptions at such date. There are no pending or,
to the best of the Borrower's knowledge, threatened
claims, lawsuits or actions (other than routine
claims for benefits in the ordinary course) asserted
or instituted against, and neither the Borrower nor
any member of its Controlled Group has
knowledge of any threatened litigation or claims
against, (i) the assets of any Plan or trust or
against any fiduciary of a Plan with respect to the
operation of such Plan, or (ii) the assets of any
employee welfare benefit plan within the meaning of
Section 3(1) or ERISA, or against any fiduciary
thereof with respect to the operation of any such
plan. None of the Borrower or any member of its
Controlled Group has engaged in any prohibited
transactions, within the meaning of Section 406 of
ERISA or Section 4975 of the Code, in connection with
any Plan. None of the Borrower or any member of its
Controlled Group has withdrawn from any Multiemployer
Plan, nor has incurred or reasonably expects to incur (A) any
liability under Title IV of ERISA (other than
premiums due under Section 4007 of ERISA to the
PBGC), (B) any withdrawal liability (and no event
has occurred which with the giving of notice under
Section 4219 of ERISA would result in such liability)
under Section 4201 of ERISA as a result of a
complete or partial withdrawal (within the meaning
of Section 4203 or 4205 of ERISA) from a
Multiemployer Plan, or (C) any liability under
Section 4062 of ERISA to the PBGC or to a trustee
appointed under Section 4042 of ERISA. None of the
Borrower, any member of its Controlled Group, or any
organization to which the Borrower or any member of
its Controlled Group is a successor or parent
corporation within the meaning of ERISA
Section 4069(b), has engaged in a transaction within
the meaning of ERISA Section 4069. None of the
Borrower or any member of its Controlled Group
maintains or has established any welfare benefit
plan within the meaning of Section 3(1) of
ERISA which provides for continuing benefits or
coverage for any participant or any beneficiary of
any participant after such participant's termination
of employment except as may be required by the
Consolidated Omnibus Budget Reconciliation Act of
1985, as amended ("COBRA") and the regulations
thereunder, and at the expense of the participant or
the beneficiary of the participant, or retiree
medical liabilities.
Each of Borrower and its Controlled Group which
maintains a welfare benefit plan within the meaning
of Section 3(1) of ERISA has complied in all material
respects with any applicable notice and continuation
requirements of COBRA and the regulations
thereunder.
(m) Compliance with Regulations G, T, U and X.
The Borrower is not engaged principally or as one of
its important activities in the business of extending
credit for the purpose of purchasing or carrying any
margin stock within the meaning of Regulations G, T,
U and X of the Board of Governors of the Federal
Reserve System, and no part of the proceeds of the
Advances or the Letters of Credit will be used to
purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or
carrying any margin stock. No assets of the Borrower
and its Restricted Subsidiaries are margin stock,
and none of the Pledged Stock is margin stock. None
of the Borrower and its Restricted Subsidiaries, nor
any agent acting on their behalf, have taken or will
knowingly take any action which might cause this
Agreement or any Loan Documents to
violate any regulation of the Board of Governors of
the Federal Reserve System or to violate the
Securities Exchange Act of 1934, in each case as in
effect now or as the same may hereafter be in effect.
(n) Governmental Regulation. The
Borrower and its Restricted Subsidiaries are
not required to obtain any Necessary
Authorization that has not already been obtained
from, or effect any material filing or registration
that has not already been effected with, the FCC or
any other federal, state or local regulatory
authority in connection with the execution and delivery of
this Agreement or any other Loan Document, or the
performance thereof (other than any enforcement of
remedies by the Administrative Lender on behalf of
the Lenders), in accordance with their
respective terms, including any borrowings hereunder.
(o) Absence of Default. The Borrower and its
Restricted Subsidiaries are in compliance in all
material respects with all of the provisions of
their articles of incorporation and by-laws, and no
event has occurred or failed to occur, which has not
been remedied or waived, the occurrence or non-
occurrence of which constitutes, or which with the
passage of time or giving of notice or both
would constitute, (i) an Event of Default or (ii)
a default by the Borrower or any of its Restricted
Subsidiaries under any material indenture,
agreement or other instrument, or any judgment,
decree or order to which the Borrower or any of its
Restricted Subsidiaries is a party or by which they
or any of their material properties is bound.
(p) Investment Company Act. The Borrower is not
required to register under the provisions of the
Investment Company Act of 1940, as amended.
Neither the entering into or performance by the
Borrower of this Agreement nor the issuance of the
Notes violates any provision of such act or requires
any consent, approval, or authorization of, or
registration with, the Securities and Exchange
Commission or any other governmental or public body
or authority pursuant to any provisions of such act.
(q) Environmental Matters. Neither the Borrower
nor any Subsidiary has any actual knowledge or reason
to believe that any substance deemed hazardous by
any Applicable Environmental Law, has been installed
on any real property now owned by the Borrower or any
of its Subsidiaries. The Borrower and its
Subsidiaries are not in violation of or subject to
any existing, pending or, to the best of the
Borrower's knowledge, threatened investigation or
inquiry by any governmental authority or to any
material remedial obligations under any Applicable
Environmental Laws, and this representation and
warranty would continue to be true and correct
following disclosure to the applicable governmental
authorities of all relevant facts, conditions and
circumstances, if any, pertaining to any real
property of the Borrower and its Subsidiaries. The
Borrower and its Subsidiaries have not obtained and
are not required to obtain any permits,
licenses or similar authorizations to construct,
occupy, operate or use any buildings,
improvements, fixtures, and equipment forming a part
of any real property of the Borrower or any
Subsidiary by reason of any Applicable Environmental
Laws. The Borrower and its Subsidiaries undertook,
at the time of acquisition of any real property,
reasonable inquiry into the previous ownership and
uses of such real property consistent with good
commercial or customary practice. The Borrower and
its Subsidiaries have taken all reasonable steps to
determine, and the Borrower and its Subsidiaries have
no actual knowledge or reason to believe, after
reasonable investigation, that any hazardous
substances or solid wastes have been disposed of or
otherwise released on or to the real property of the
Borrower or any of its Subsidiaries in any manner or
quantities which would be deemed a violation of the
Applicable Environmental Laws.
(r) Certain Agreements. The Capitalized Lease
Obligations and the Affiliation Agreements have
been duly authorized, executed and delivered by the
Borrower or its Restricted Subsidiaries, as
applicable, and (to the best of the Borrower's
knowledge) the other parties thereto. Except as
disclosed to each Lender, there is no litigation, or,
to the best of the Borrower's knowledge, claim of
breach or default, pending or threatened with respect
to any Capitalized Lease Obligations or Affiliation
Agreement that could reasonably be expected to
adversely effect any such lease or contract. The
Borrower has no knowledge of any default by any
seller of any of the Borrower's or its Restricted
Subsidiaries' television or radio stations under any
obligations of such seller to the Borrower or any
Restricted Subsidiary. The Borrower has no notice of
or belief that any party to any Capitalized Lease
Obligation or Affiliation Agreement is contemplating
a breach, default or termination for any reason of
such contract or lease, other than as disclosed in
writing and reasonably acceptable to the Lenders.
The Borrower has provided, or caused to be provided,
to the Administrative Lender complete and correct
copies of or access to the Capitalized Lease
Obligations and Affiliation Agreements, all as
amended, together with all exhibits and schedules
thereto.
(s) Valid Issuance of Securities. All Pledged
Stock has been duly authorized and validly issued,
and is fully paid and nonassessable. The Capital
Stock described on Exhibit A to the Pledge Agreements
constitutes all the issued and outstanding Capital
Stock of the Subsidiaries of the Borrower or the
Subsidiaries of another Subsidiary. No Person has
conversion rights with respect to, or any
subscription rights, calls, commitments or claims of
any character for, or any repurchase or redemption
options relating to, the Pledged Stock, except for
those listed on Schedule 5 hereto. The Pledged
Stock, when issued or sold, was either (i) registered
or qualified under applicable federal or state
securities laws, or (ii) exempt therefrom.
(t) Certain Fees. No broker's, finder's or other
fee or commission will be payable by the Borrower
(other than to the Lenders hereunder) with respect
to the making of the Commitments or the Advances hereunder
or the issuance of any Letters of Credit. The
Borrower agrees to indemnify and hold harmless the
Administrative Lender and each Lender from and
against any claims, demand, liability, proceedings,
costs or expenses asserted with respect to or arising
in connection with any such fees or commissions.
(u) Compliance. Attached as Schedule 4 hereto
is a complete list of all material licenses,
consents, authorizations, permits and Necessary
Authorizations as of the Agreement Date. Such
licenses, consents, permits and authorizations
constitute all that are necessary, appropriate or
advisable for each of the Borrower and its
Restricted Subsidiaries to operate its business and
own its properties, and are in full force and effect.
No event has occurred which permits (or with the
passage of time would permit) the revocation or
termination of any such license, consents, permits
and authorizations, or which could result in
the imposition of any restriction thereon of such a
nature that could reasonably be expected to have a
Material Adverse Effect.
(v) Patents, Etc. The Borrower and its
Restricted Subsidiaries have obtained all
patents, trademarks, service-marks, trade names,
copyrights, licenses and other rights, free from
burdensome restrictions, that are necessary for the
operation of their business as presently conducted
and as proposed to be conducted, the loss of which
could reasonably be expected to have a Material
Adverse Effect. Nothing has come to the attention of
the Borrower or any of its Restricted Subsidiaries to
the effect that (i) any process, method, part or
other material presently contemplated to be employed
by the Borrower or any Restricted Subsidiary may
infringe any patent, trademark, service-▇▇▇▇, trade
name, copyright, license or other right owned by
any other Person, or (ii) there is pending or
overtly threatened any claim or litigation against or
affecting the Borrower or any Restricted Subsidiary
contesting its right to sell or use any such process,
method, part or other material.
(w) Disclosure. Neither this Agreement nor any
other document, certificate or statement which has
been furnished to any Lender by or on behalf
of the Borrower or any Restricted Subsidiary in
connection herewith contained any untrue
statement of a material fact or omitted to state a
material fact necessary in order to make the
statement contained herein and therein not misleading
at the time it was furnished. There is no fact
known to the Borrower and not known to the public
generally that could reasonably be expected to
materially adversely affect the assets or business of
the Borrower and its Restricted Subsidiaries, or in
the future could reasonably be expected (so far as
the Borrower can now foresee) to have a Material
Adverse Effect, which has not been set forth in this
Agreement or in the documents, certificates and
statements furnished to the Lenders by or on behalf
of the Borrower prior to the date hereof in
connection with the transaction contemplated hereby.
Section 4.2 Survival of Representations and
Warranties, etc.
All representations and warranties made under this
Agreement and the other Loan Documents shall be
deemed to be made at and as of the Agreement Date and
at and as of the date of each Advance and each Letter
of Credit, and each shall be true and correct when
made, except to the extent (a) previously fulfilled
in accordance with the terms hereof, (b) applicable
to a specific date or otherwise subsequently
inapplicable, or (c) previously waived in writing by
the Determining Lenders with respect to any
particular factual circumstance. All such
representations and warranties shall survive, and not
be waived by, the execution hereof by any Lender, any
investigation or inquiry by any Lender, or by the
making of any Advance under this Agreement.
ARTICLE 5
General Covenants
So long as any of the Obligations are
outstanding and unpaid or
any Commitment is outstanding (whether or not the
conditions to borrowing have been or can be
fulfilled):
Section 5.1 Preservation of Existence and
Similar Matters. The Borrower shall, and shall
cause each Restricted Subsidiary to:
(a) preserve and maintain, or timely obtain and
thereafter preserve and maintain, its existence,
rights, franchises, licenses, authorizations,
consents, privileges and all other Necessary
Authorizations from federal, state and local
governmental bodies and any tribunal (regulatory or
otherwise), the loss of which could have a Material
Adverse Effect; and
(b) qualify and remain qualified and
authorized to do business in each jurisdiction in
which the character of its properties or the nature
of its business requires such qualification or
authorization, unless the failure to do so could not
have a Material Adverse Effect.
Section 5.2 Business; Compliance with
Applicable
Law. The Borrower and its Restricted Subsidiaries
shall (a) engage substantially in the media or
communication related business and activities
related thereto, and (b) comply in all material
respects with the requirements of all Applicable Law,
the failure of which could reasonably be expected to
have a Material Adverse Effect.
Section 5.3 Maintenance of Properties.
The Borrower shall, and shall cause each Restricted
Subsidiary to, maintain or cause to be maintained all
its properties (whether owned or held under lease) in
reasonably good repair, working order and condition,
taken as a whole, and from time to time make or cause
to be made all appropriate repairs, renewals,
replacements, additions, betterments and improvements
thereto.
Section 5.4 Accounting Methods and Financial
Records. The Borrower shall, and shall cause each
Restricted Subsidiary to, maintain a system of
accounting established and administered in accordance
with GAAP, keep adequate records and books of
account in which complete entries will be made
and all transactions reflected in accordance with
GAAP, and keep accurate and complete records of its
respective assets. The Borrower and each of its
Restricted Subsidiaries shall maintain a fiscal year
ending on December 31.
Section 5.5 Insurance. The Borrower shall,
and shall cause each Restricted Subsidiary to,
maintain insurance from responsible companies in
such amounts and against such risks as shall be
customary and usual in the industry for companies of
similar size and capability, but in no event less
than the amount and types insured as of the Agreement
Date. Each insurance policy shall provide for at
least 30 days' prior notice to the Administrative
Lender of any proposed termination or
cancellation of such
policy, whether on account of default or otherwise,
the loss of which could, individually or in the
aggregate, reasonably be expected to have Material
Adverse Effect.
Section 5.6 Payment of Taxes and Claims. The
Borrower shall, and shall cause each Restricted
Subsidiary to, pay and discharge all taxes,
assessments and governmental charges or
levies imposed upon it or its income or properties
prior to the date on which penalties attach
thereto, and all lawful material claims for labor,
materials and supplies which, if unpaid, might
become a
Lien upon any of its properties; except that no such
tax, assessment, charge, levy or claim need be paid
which is being diligently contested in good faith by
appropriate proceedings and for which adequate
reserves shall have been set aside on the appropriate
books, but only so long as no Lien (other than a
Permitted Lien) shall attach with respect thereto and
no foreclosure, distraint, sale or similar
proceedings shall have been commenced. The Borrower
shall, and shall cause each Restricted Subsidiary to,
timely file all information returns required by
federal, state or local tax authorities.
Section 5.7 Visits and Inspections. The
Borrower shall, and shall cause each Restricted
Subsidiary to, promptly permit representatives of the
Administrative Lender or any Lender from time to time
to (a) visit and inspect the properties of the
Borrower and Restricted Subsidiary as often as the
Administrative Lender or any Lender shall deem
advisable, (b) inspect and make extracts from and
copies of the Borrower's and each Restricted
Subsidiary's books and records, and (c) discuss
with the Borrower's and each Restricted
Subsidiary's directors, officers, employees
and auditors its business, assets, liabilities,
financial positions, results of operations and
business prospects.
Section 5.8 Payment of Indebtedness. Subject
to Section 5.6 hereof, the Borrower shall, and shall
cause each Restricted Subsidiary to, pay its
Indebtedness when and as the same becomes due, other
than amounts (other than the Obligations) duly and
diligently disputed in good faith.
Section 5.9 Use of Proceeds. The Borrower
shall use the proceeds of Advances and Letters of
Credit to make acquisitions permitted under Section
7.5 hereof, to make Capital Expenditures, to
make Investments (including advances to
Subsidiaries) permitted pursuant to Section 7.3
hereof, to refinance all outstanding Indebtedness
under the Existing Credit Agreement, for working
capital and for other general corporate purposes.
Section 5.10 Indemnity.
(a) The Borrower agrees to defend, protect,
indemnify and hold
harmless the Administrative Lender, the Issuing
Bank, each Lender, each of their respective
affiliates, and each of their respective (including
such affiliates') officers, directors, employees,
agents, attorneys, shareholders and consultants
(including, without limitation, those retained in
connection with the satisfaction or attempted
satisfaction of any of the conditions set forth
herein) of each of the foregoing (collectively,
"Indemnitees") from and against any and all
liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses
and disbursements of any kind or nature
whatsoever (including, without limitation, the
reasonable fees and disbursements of counsel for such
Indemnitees in connection with any investigative,
administrative or judicial proceeding, whether or not
such Indemnitees shall be designated a party
thereto), imposed on, incurred by, or asserted
against such Indemnitees (whether direct, indirect
or consequential and whether based on any
federal, state, or local laws and regulations, under
common law or at equitable cause, or on contract,
tort or otherwise, arising from or connected with
the past, present or future operations of the
Borrower or its predecessors in interest, or the
past, present or future environmental condition of
property of the Borrower), in any manner relating
to or arising out of this Agreement, the Loan
Documents, or any act, event or transaction or
alleged act, event or transaction relating or
attendant thereto, the making of or any
participations in the Advances or the Letters of
Credit and the management of the Advances and the
Letters of Credit, including in connection with, or
as a result, in whole or in part, of any ordinary or
mere negligence of Administrative Lender, the Issuing
Bank or any Lender (other than those matters raised
exclusively by a participant against the
Administrative Lender, the Issuing Bank or any
Lender and not the Borrower), or the use or intended
use of the proceeds of the Advances and the Letters
of Credit hereunder, or in connection with any
investigation of any potential matter covered hereby,
but excluding any claim or liability that arises as
the result of the gross negligence or willful
misconduct of any Indemnitee, as finally judicially
determined by a court of competent jurisdiction, but
excluding matters raised by one Lender against
another Lender or by any shareholders of a Lender
against a Lender or its management (collectively,
"Indemnified Matters"); provided however, that so
long as no Event of Default shall have occurred and
be continuing, there shall be no settlement by the
Indemnitees or any of them with respect to any
Indemnified Matter without prior consultation with
the Borrower.
(b) In addition, the Borrower shall
periodically, upon request, reimburse each Indemnitee
for its reasonable legal and other actual expenses
(including the cost of any investigation and
preparation) incurred in connection with any
Indemnified Matter; provided, however, that the
Indemnitees agree that they shall endeavor to use
legal counsel common to all Indemnitees in connection
with any Indemnified Matter unless any such
Indemnitee shall reasonably determine, in its sole
discretion, that the use of such common legal
counsel would conflict with its interests in such
Indemnified Matter. If for any reason the foregoing
indemnification is unavailable to any Indemnitee or
insufficient to hold any Indemnitee harmless with
respect to Indemnified Matters, then the Borrower
shall contribute to the amount paid or payable by
such Indemnitee as a result of such loss, claim,
damage or liability in such proportion as is
appropriate to reflect not only the relative
benefits received by the Borrower and the Borrower's
stockholders on the one hand and such Indemnitee on
the other hand but also the relative fault of the
Borrower and such Indemnitee, as well as any other
relevant equitable considerations. The
reimbursement, indemnity and contribution obligations
under this Section shall be in addition to any
liability which the Borrower may otherwise have,
shall extend upon the same terms and conditions
to each Indemnitee, and shall be binding upon and
inure to the benefit of any successors, assigns,
heirs and personal representatives of the Borrower,
the Administrative Lender, the Issuing Bank, the
Lenders and all other Indemnitees. This Section
shall survive any termination of this Agreement and
payment of the Obligations.
Section 5.11 Environmental Law Compliance.
The use which the Borrower or any Subsidiary intends
to make of any real property owned by it will not
result in the disposal or other release of any
hazardous substance or solid waste on or to such real
property in any manner or quantities which would be
deemed a violation of the Applicable Environmental
Laws. Borrower further agrees to exercise
reasonable due diligence in the acquisition of real
property in connection with compliance with
Applicable Environmental Laws. As used herein, the
terms "hazardous substance" and "release" as used
in this Section shall have the meanings specified in
CERCLA (as defined in the definition of Applicable
Environmental Laws), and the terms "solid waste" and
"disposal" shall have the meanings specified in RCRA
(as defined in the definition of Applicable
Environmental Laws); provided, however, that if
CERCLA or RCRA is amended so as to broaden the
meaning of any term defined thereby, such broader
meaning shall apply subsequent to the effective date
of such amendment; and provided further, to the
extent that any other law applicable to the Borrower,
any Subsidiary or any of their properties establishes
a meaning for "hazardous substance," "release,"
"solid waste," or "disposal" which is broader
than that specified in either CERCLA or RCRA, such
broader meaning shall apply. The Borrower agrees to
indemnify and hold the Administrative Lender, the
Issuing Bank and each Lender harmless from and
against, and to reimburse them with respect to, any
and all claims, demands, causes of action, loss,
damage, liabilities, costs and expenses (including
attorneys' fees and courts costs) of any kind or
character, known or unknown, fixed or contingent,
asserted against or incurred by any of them at any
time and from time to time by reason of or arising
out of (a) the failure of the Borrower or any
Subsidiary to perform any obligation hereunder
regarding asbestos or Applicable Environmental Laws,
(b) any violation on or before the Release Date of
any Applicable Environmental Law in effect on or
before the Release Date, and (c) any act, omission,
event or circumstance existing or occurring on or
prior to the Release Date (including without
limitation the presence on such real property or
release from such real property of hazardous
substances or solid wastes disposed of or otherwise
released on or prior to the Release Date), resulting
from or in connection with the ownership of the real
property, regardless of whether the act, omission,
event or circumstance constituted a violation of any
Applicable Environmental Law at the time of its
existence or occurrence, or whether the act,
omission, event or circumstance is caused by or
relates to the negligence of any Indemnified Person;
provided that, the Borrower shall not be under any
obligation to indemnify the Administrative
Lender, the Issuing Bank or any Lender to the
extent that any such liability arises as the result
of the gross negligence or willful misconduct of such
Person, as finally judicially determined by a court
of competent jurisdiction. The provisions of this
paragraph shall survive the Release Date and shall
continue thereafter in full force and effect.
ARTICLE 6
Information Covenants
So long as any of the Obligations are
outstanding and unpaid or
any Commitment is outstanding (whether or not the
conditions to borrowing have been or can be
fulfilled), the Borrower shall furnish or cause to be
furnished to the Administrative Lender:
Section 6.1 Quarterly Financial
Statements and Information.
Within 45 days after the end of each fiscal quarter,
consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as at the end of such
quarter and the related consolidated and
consolidating statements of income and consolidated
statements of changes in cash flow for such quarter
and for the elapsed portion of the year ended with
the last day of such quarter, all of which shall be
certified by the president or chief financial officer
of the Borrower,
to be, in his or her opinion, complete and correct in
all material respects and to present fairly, in
accordance with GAAP, the financial position
and results of operations of the Borrower and its
Subsidiaries as at the end of and for such period,
and for the elapsed portion of the year
ended with the last day of such period,
subject only
to normal year-end adjustments. In addition, the
Borrower shall furnish within such time period a
reconciliation of such financial statements setting
forth the difference in financial position and
results of operations between its Subsidiaries and
its Restricted Subsidiaries for such period and for
the elapsed portion of the year ended with
the last day on such period, subject to sound year-
end adjustments.
Section 6.2 Annual Financial Statements and
Information;
Certificate of No Default.
(a) Within 90 days after the end of each fiscal
year, a copy of (i) the consolidated balance sheet of
the Borrower and its Subsidiaries, as of the end of
the current and prior fiscal years and (ii)
consolidated statements of earnings, statements of
changes in shareholders' equity, and statements of
changes in cash flow as of and through the end of
such fiscal year, all of which are prepared in
accordance with GAAP, and certified by independent
certified public accountants acceptable to the
Lenders, whose opinion shall be in scope and
substance in accordance with generally accepted
auditing standards and shall be unqualified. In
addition, the Borrower shall furnish within such time
period an unaudited reconciliation of such
financial statements setting forth the difference
in financial position and results of operations
between its Subsidiaries and its Restricted
Subsidiaries as of and through the end of such
fiscal year. (b) Simultaneously with the delivery of
the statements required by this Section 6.2, a letter
from the Borrower's public accountants certifying
that no Default was detected during the examination
of the Borrower and its Restricted Subsidiaries, and
authorizing the Borrower to deliver such financial
statements and opinion thereon to the Administrative
Lender and Lenders pursuant to this Agreement.
(c) As soon as available, but in any event within 60
days following the end of each fiscal year, a copy of
the annual consolidated operating budget of the
Borrower and its Subsidiaries for the succeeding
fiscal year.
Section 6.3 Compliance Certificates. At
the time financial
statements are furnished pursuant to Sections 6.1 and
6.2 hereof, a certificate of an Authorized Signatory:
(a) setting forth at the end of such period, a
calculation of the Leverage Ratio, as well as
certifications and arithmetical calculations required
to establish whether the Borrower and its Restricted
Subsidiaries were in compliance with the requirements
of Sections 7.1(d), (e), (f), (g) and (h), 7.3(h),
7.6, 7.7, 7.10, 7.11, 7.12, 7.13 and 7.14 hereof,
which
shall be substantially in the form of Exhibit H
hereto;
(b) setting forth the aggregate amount of
outstanding Advances and Reimbursement Obligations
and certifying as to compliance herewith; and
(c) stating that, to the best of his or her
knowledge after due inquiry, no Default has
occurred as at the end of such period, or if a
Default has occurred, disclosing each such Default
and its nature, when it occurred, whether it is
continuing and the steps being taken with respect to
such Default.
Section 6.4 Copies of Other Reports and
Notices.
(a) Promptly upon their becoming available, a
copy of (i) all material reports or letters
submitted to the Borrower or any Restricted
Subsidiary by accountants in connection with any
annual, interim or special audit, including without
limitation any report prepared in connection with
the annual audit referred to in Section 6.2
hereof, and any other comment letter submitted to
management in connection with any such audit, (ii)
each financial statement, report, notice or proxy
statement sent by the Borrower or any Restricted
Subsidiary to stockholders generally, (iii) each
regular or periodic report and any registration
statement (other than statements on Form S-8) or
prospectus (or material written communication in
respect of any thereof) filed by the Borrower or any
subsidiary with any securities exchange, with the
Securities and Exchange Commission or any successor
agency, and (iv) all press releases concerning
material financial aspects of the Borrower or any
Restricted Subsidiary;
(b) Promptly upon becoming aware that (i) the
holder(s) of any note(s) or other evidence of
indebtedness or other security of the Borrower or
any Restricted Subsidiary in excess of $750,000 in
the aggregate has given notice or taken any action
with respect to a breach, failure to perform, claimed
default or event of default thereunder, (ii) any
party to any Capitalized Lease Obligations or any
Local Marketing Agreement has given notice or
taken any action with respect to a breach, failure
to perform, claimed default or event of default
thereunder,
(iii) any occurrence
or non-occurrence of any event which constitutes or
which with the passage of time or giving of notice
or both could constitute a material breach by the
Borrower or any Restricted Subsidiary under any
material agreement or instrument which could
reasonably be expected to result in a liability in
excess of $750,000, other than this Agreement to
which the Borrower or any Restricted Subsidiary is a
party or by which any of their properties may be
bound, or (iv) any event, circumstance or condition
which could reasonably be expected to have a Material
Adverse Effect, a written notice specifying the
details thereof (or the nature of any claimed default
or event of default) and what action is being taken
or is proposed to be taken with respect thereto;
provided, however, no notice shall be required to be
delivered hereunder with respect to any event,
circumstance or condition set forth in clause (i),
(ii) or (iii) immediately preceding if, in the
opinion of counsel to the Borrower or such
Restricted Subsidiary, there is no reasonable
possibility of an adverse determination with respect
to such event, circumstance or condition;
(c) Promptly upon receipt thereof, information
with respect to and copies of any notices received
from
the FCC or any other federal, state or local
regulatory agencies or any tribunal relating to any
order, ruling, law, information or policy that
relates to a breach of or noncompliance with the
Communications Act, or could reasonably be expected
to result in the payment of money by the Borrower or
any Restricted Subsidiary in an amount of $750,000
or more in the aggregate, or otherwise have a
Material Adverse Effect, or result in the loss or
suspension of any Necessary Authorization; provided,
however, no information shall be required to be
delivered hereunder if, in the opinion of counsel to
the Borrower or such Restricted Subsidiary,
there is no reasonable possibility of an adverse
determination with respect to such notice;
(d) Promptly upon receipt from any governmental
agency, or any government, political subdivision or
other entity, any material notice, correspondence,
hearing, proceeding or order regarding or affecting
the Borrower, any Subsidiary, or any of
their properties or businesses; and
(e) From time to time and promptly upon each
request, such data, certificates, reports,
statements, opinions of counsel, documents or further
information regarding the assets, business,
liabilities, financial position, projections,
results of operations or business prospects of the
Borrower and its Subsidiaries, as the Administrative
Lender or any Lender may reasonably request. Section
6.5 Notice of Litigation, Default and Other
Matters.
Prompt notice of the following events after the
Borrower has knowledge or notice thereof:
(a) The commencement of all proceedings and
investigations by or before the FCC or any other
governmental body, and all actions and proceedings in
any court or before any arbitrator involving claims
for damages, fines or penalties (including
punitive damages) in excess of $750,000 in the
aggregate (after deducting the amount with respect
to the Borrower or any Restricted Subsidiary such
Person is insured, provided such claim has not been
denied), against or in any other way relating
directly to the Borrower, any Restricted Subsidiary,
or any of their properties or businesses; provided,
however, no notice shall be required to be delivered
hereunder if, in the opinion of counsel to the
Borrower or such Restricted Subsidiary, there is no
reasonable possibility of an adverse determination in
such action
or proceeding;
(b) Promptly upon the happening of any condition or
event which constitutes a Default, a written
notice specifying the nature and period of
existence thereof and what action is being taken or
is proposed to be taken with respect thereto; and
(c) Any material adverse change with
respect to the business, assets, liabilities,
financial position, results of operations or
prospective business of the Borrower or any
Subsidiary, other than changes in the ordinary
course of business which have not had and are not
likely to have a Material Adverse Effect.
Section 6.6 ERISA Reporting Requirements.
(a) Promptly and in any event (i) within 30 days
after the Borrower or any member of its Controlled
Group knows or has reason
to know that any ERISA Event described in clause (a)
of the definition of ERISA Event or any event
described in Section 4063(a) of ERISA with respect
to any Plan of the Borrower or any member of its
Controlled Group has occurred, and (ii) within 10
days after the Borrower or any member of its
Controlled Group knows or has reason to know that
any other ERISA Event with respect to any Plan of
the Borrower or any member of its Controlled
Group has occurred or a request for a minimum
funding waiver under Section 412 of the Code with
respect to any Plan of the Borrower or any member of
its Controlled Group, a written notice describing
such event and describing what action is being taken
or is proposed to be taken with respect thereto,
together with a copy of any notice of event that is
given to the PBGC;
(b) Promptly and in any event within two
Business Days after receipt thereof by the Borrower
or any member of its Controlled Group from the
PBGC, copies of each notice received by the
Borrower or any member of its Controlled Group of the
PBGC's intention to terminate any Plan or to have a
trustee appointed to administer any Plan;
(c) Promptly and in any event within 30 days
after the filing thereof by the Borrower or any
member of its Controlled Group with the United
States Department of Labor, the Internal Revenue
Service or the PBGC, copies of each annual and other
report (including Schedule B thereto) with respect to
each Plan;
(d) Promptly and in any event within 30 days after
receipt thereof, a copy of any notice, determination
letter, ruling or opinion the Borrower or any
member of its Controlled Group receives from the
PBGC, the United States Department of Labor or the
Internal Revenue Service with respect to any Plan;
(e) Promptly, and in any event within 10
Business Days after receipt thereof, a copy of any
correspondence the Borrower or any member of its
Controlled Group receives from the Plan Sponsor (as
defined by Section 4001(a)(10) of ERISA) of any Plan
concerning potential withdrawal liability pursuant to
Section 4219 or 4202 of ERISA, and a statement from
the chief financial officer of the Borrower or such
member of its Controlled Group setting forth details
as to the events giving rise to such potential
withdrawal liability and the action which the
Borrower or such member of its Controlled Group is
taking or proposes to take with respect thereto;
(f) Notification within 30 days of any material
increases in the benefits of any existing Plan which
is not a Multiemployer Plan, or the establishment of
any new Plans, or the commencement of contributions
to any Plan to which the Borrower or any member of
its Controlled Group was not previously contributing;
(g) Notification within three Business Days
after the Borrower or any member of its Controlled
Group knows or has reason to know that the Borrower
or any such member of its Controlled Group has or
intends to file a notice of intent to terminate any
Plan under a distress termination within the meaning
of Section 4041(c) of ERISA and a copy of such
notice; and
(h) Promptly after receipt of written notice of
commencement thereof, notice of all actions, suits
and proceedings before any court or governmental
department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting the
Borrower or any member of its Controlled Group with
respect to any Plan, except those which, in the
aggregate, if adversely determined could not have a
Material Adverse Effect.
ARTICLE 7
Negative Covenants
So long as any of the Obligations are
outstanding and unpaid or any Commitment is
outstanding (whether or not the conditions to
borrowing have been or can be fulfilled):
Section 7.1 Indebtedness. The Borrower
shall not, and shall not permit any Restricted
Subsidiary to, create, assume, incur or otherwise
become or remain obligated in respect of, or permit
to be outstanding, or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Accounts payable (including film right
payables), accrued expenses, deferred revenue
items, pension liabilities and customer advance
payments incurred in the ordinary course of business;
(c) Guaranties to the extent permitted under Section 7.6 hereof;
(d) Capitalized Lease Obligations and Indebtedness incurred to
purchase tangible personal property, in an aggregate
amount not to exceed $7,500,000 at any time;
(e) Indebtedness evidenced by the Intercompany
Notes; and
(f) Institutional Debt in an aggregate amount not to
exceed $300,000,000 at any time outstanding;
provided, that, (i) such debt is unsecured, (ii)
such debt is at all times on terms and conditions to
the reasonable satisfaction of the Determining
Lenders, (iii) such debt has a final maturity
and Weighted Average Life to Maturity (computed from
the date of incurrence of such debt) at least one day
longer than the Maturity Date and the Weighted
Average Life to Maturity of the Obligations, and
(iv) the Net Cash Proceeds of such issuance are
applied in accordance with Section 2.5(d) hereof;
(g) Indebtedness set forth on Schedule 9
hereto, and all renewals and extensions (but not
increases) thereof;
(h) Indebtedness not to exceed $60,000,000
United States dollars in the aggregate principal
amount outstanding at any time, provided that the
terms of such Indebtedness are reasonably acceptable
to the Administrative Lender;
(i) Indebtedness (in addition to Indebtedness
otherwise permitted pursuant to this Section 7.1) of
its Restricted Subsidiaries not to exceed $10,000,000
in aggregate principal amount outstanding at any
time; and
(j) Indebtedness (in addition to the
Indebtedness otherwise permitted pursuant to this
Section 7.1) of the Borrower and its Restricted
Subsidiaries not to exceed in aggregate principal
amount outstanding at any time 100% of Operating Cash
Flow for the immediately preceding four fiscal
quarters, provided, however, the incurrence of
Indebtedness otherwise permitted pursuant to clauses
(c), (d), (e), (f), (h), (i) and (j) immediately
preceding shall be permitted only if there shall
exist no Default prior to or after giving effect to
any such proposed Indebtedness.
Section 7.2 Liens. The Borrower shall not,
and shall not permit any Restricted Subsidiary to,
create, assume, incur, permit
or suffer to exist, directly or indirectly, any Lien
on any of its assets, whether now owned or
hereafter acquired, except Permitted Liens.
The Borrower shall not, and shall not permit
any Restricted Subsidiary to, agree with any other
Person that it shall not create, assume, incur,
permit or suffer to exist or to be created,
assumed, incurred or permitted to exist, directly or
indirectly, any Lien on any of its assets.
Section 7.3 Investments. The Borrower
shall not, and shall not permit any Subsidiary to,
make, own or maintain any Investment, except
that the Borrower may purchase or otherwise acquire
and own and maintain:
(a) Marketable, direct obligations of, or
guaranteed by, the United States of America and
maturing within 365 days of the date of purchase;
(b) Commercial paper issued by U.S. corporations
that have a rating of A-1/P-1 or better by ▇▇▇▇▇'▇
Investors Service, Inc. or Standard & Poor's
Corporation;
(c) Certificates of deposit of domestic
banks maturing within 365 days of the date of
purchase, which banks' debt obligations have one of
the two highest ratings obtainable from ▇▇▇▇▇'▇
Investors Service, Inc. or Standard & Poor's
Corporation;
(d) Securities issued by U.S. corporations that
have one of the two highest ratings obtainable from
Moody's or S&P;
(e) Investments in newly-formed or existing
Restricted Subsidiaries (i) that are subject to the
provisions hereof, (ii) that are or immediately
become party to the Subsidiary Guaranty (iii) whose
Capital Stock is pledged to the Lenders to secure the
Obligations, and (iv) whose Intercompany Notes are
pledged to the Lenders to secure the Obligations;
(f) Accounts receivable that arise in the
ordinary course of business and are payable on
standard terms;
(g) Investments which are described on
Schedule 8 hereto; and
(h) Provided there shall exist no Default prior
to or after giving effect to any such proposed
Investments (which may include, without limitation,
Investments in Unrestricted Subsidiaries), other
Investments in communication or media related
businesses not to exceed, at any time
outstanding, an aggregate amount (determined using
the purchase price or cost of such Investments
without any adjustment for depreciation or
amortization) equal to the sum of
(i) 150% of Operating Cash Flow for the
immediately preceding four fiscal quarters, plus
(ii) 100% of the first $50,000,000 of Net Cash
Proceeds received by the Borrower and its
Subsidiaries from the issuance of Equity after the
Agreement Date, plus (iii) 50% of Net Cash Proceeds
in excess of $50,000,000 received by the Borrower
and its Subsidiaries from the issuance of Equity
(including any conversion of subordinated convertible
debentures, which constitutes Subordinated Debt, into
Equity) after the Agreement Date, plus (iv) 50% of
the Net Cash Proceeds received by the Borrower and
its Subsidiaries from the issuance of any
subordinated convertible debentures after the
Agreement Date.
Section 7.4 Amendment and Waiver. The
Borrower shall not, and shall not permit any
Restricted Subsidiary to, enter into any amendment
of any material term or provision of its articles of
incorporation or by-laws. In addition, the Borrower
shall not, and shall not permit any Restricted
Subsidiary to, enter into any amendment of, or agree
to or accept any waiver of any of the provisions of,
any Necessary Authorization, unless (a) the
Determining Lenders consent to such amendment and (b)
the Lenders are provided with 10 days' written
notice prior to the execution or effectiveness of the
proposed amendment or waiver.
Section 7.5 Liquidation, Disposition or
Acquisition of Assets, Merger, New Subsidiaries. The
Borrower shall not, and shall not permit any
Restricted Subsidiary to, at any time:
(a) liquidate or dissolve itself (or suffer any
liquidation or dissolution) or otherwise wind up; or
sell, lease, abandon, transfer or otherwise dispose
of all or any part of its assets, properties or
business, other than immaterial assets sold in the
ordinary course of business, or dispositions whose
proceeds are applied in accordance with Section
2.5(c) hereof;
(b) acquire (i) all or any substantial part of
the assets, property or business of any other Person,
or (ii) any assets that constitute a division or
operating unit of the business of any other Person;
provided, however, that, so long as there shall
exist no Default prior to or after giving effect to a
proposed transaction, the Borrower or any
Restricted Subsidiary may, subject to the
limitations set forth in Section 7.3(h) hereof and in
this Section 7.5(b), purchase assets, property or
business of another Person, so long as (i) the
Lenders shall have received prior written notice at
least 20 Business Days prior to the date of such
purchase, (ii) the Administrative Lender shall have
received at least 10 Business Days prior to the date
of such purchase a compliance certificate in the
form required by Section 6.3 hereof, but setting
forth the covenant calculations described in Section
6.3(a) hereof both prior to and after giving effect
to the proposed purchase, (iii) such acquisition
shall be pursuant to documentation acceptable to the
Administrative Lender, (iv) such assets, property or
business shall be in or relate to the communications
or media related business, and (v) the Administrative
Lender shall have received copies of all
documents, instruments, opinions and other
information relating to the seller and assets to
be acquired as it may reasonably request;
(c) subject to the limitations set forth in
Section 7.3(h) hereof, enter into any merger or
consolidation; provided, however, that, so long as
there shall exist no Default prior to or after giving
effect to a proposed transaction, the Borrower or any
Restricted Subsidiary may merge or consolidate
with another Person, so long as (i) the Lenders
shall have received prior written notice at least
20 Business Days prior to the date of such
transaction, (ii) the Administrative Lender shall
have received at least 10 Business Days prior to the
date of such transaction a compliance certificate in
the form required by Section 6.3 hereof, but
setting forth the covenant calculations described
in Section 6.3(a) hereof both prior to and after
giving effect to the proposed merger or
consolidation, (iii) such merger or consolidation
shall be pursuant to documentation acceptable to
the Administrative Lender, (iv) the Person with
whom such merger or consolidation is being
consummated with shall be engaged in a
communication or media related business, (v) the
Borrower or such Restricted Subsidiary shall be the
surviving entity, provided, that if the Borrower
merges or consolidates with a Restricted Subsidiary,
the Borrower shall be the surviving entity, and (vi)
the Administrative Lender shall have received
copies of all documents, instruments, opinions and
other information relating to the seller and assets
to be acquired as it may reasonably request; or
(d) create or acquire any Subsidiary, except as
permitted by Sections 7.3(e) and (h) hereof.
Section 7.6 Guaranties. Other than those
guaranties referenced on Schedule 10 hereto, the
Borrower shall not, and shall not permit any
Restricted Subsidiary to, at any time make or
issue any Guaranty, or assume, be obligated with
respect to, or permit to be outstanding any
Guaranty, of any obligation of any other
Person except Guaranties in an aggregate amount
not to exceed $10,000,000 at
any time; provided, however, such Guaranties
shall be permitted only if prior to such proposed
Guaranty or after giving effect thereto there shall
exist no Default.
Section 7.7 Dividends. The Borrower shall
not, and shall not permit any Subsidiary to, directly or
indirectly declare or pay any Dividend; provided,
however, (a) any Subsidiary may declare and pay
Dividends to the Borrower or any Restricted
Subsidiary and (b) the Borrower may declare and
pay Dividends (including amounts which become
Dividends as a result of the proviso in the
definition of Dividends) on any date in an amount not
to exceed the sum of (y) 25% of Excess Cash Flow for
the immediately preceding twenty four month period
ending on the date of such proposed Dividend minus
(z) the aggregate amount of Dividends previously
declared and paid during such twenty-fourth month
period; provided, further, however, notwithstanding
clause (b) immediately preceding to the contrary, the
Borrower shall pay no such Dividends unless there
shall exist no Default prior to or after giving
effect to any such proposed Dividend.
Section 7.8 Affiliate Transactions. The
Borrower shall not, and shall not permit any
Subsidiary to, at any time engage in any transaction
with an Affiliate, nor make an assignment or other
transfer of any of its assets or properties to any
Affiliate, on terms materially less advantageous to
the Borrower or Subsidiary than would be the case if
such transaction had been effected with a non-
Affiliate (other than advances to employees in the
ordinary course of business). The Borrower shall
not, and shall not permit any Subsidiary to, in any
event incur or suffer to exist any Indebtedness or
Guaranty in favor of any Affiliate, unless such
Affiliate shall subordinate the payment and
performance thereof on terms satisfactory to the
Lenders in their sole discretion, and otherwise upon
terms, conditions and documentation, and in a
manner satisfactory to Determining Lenders.
Notwithstanding the foregoing, the Borrower may loan
the proceeds of Advances to Subsidiaries that are
Restricted Subsidiaries, so long as (a) there shall
exist no Default prior to or after giving effect to
such proposed loan and (b) such advances are
evidenced by Intercompany Notes that have been
pledged pursuant to the Pledge Agreements and for
which entries in the financial records of the
Borrower and its Restricted Subsidiaries are made
evidencing such loans and repayments thereof.
Section 7.9 Compliance with ERISA. The
Borrower shall not, and shall not permit any
Subsidiary to, directly or indirectly, or permit any
member of its Controlled Group to directly or
indirectly, (a) terminate any Plan so as to
result in any material (in the opinion of the
Determining Lenders) liability to the Borrower or
any member of its Controlled Group, (b) permit to
exist any ERISA Event, or any other event or
condition which presents the risk of a material (in
the opinion of the Determining Lenders) liability of
the Borrower or any member of its Controlled Group,
(c) make a complete or partial withdrawal (within the
meaning of Section 4201 of ERISA) from any
Multiemployer Plan so as to result in any material
(in the opinion of the Determining Lenders) liability
to the Borrower or any member of its Controlled
Group, (d) enter into any new Plan or modify any
existing Plan so as to increase its obligations
thereunder except in the ordinary course of business
consistent with past practice which could result in
any material (in the opinion of the Determining
Lenders) liability to the Borrower or any member of
its Controlled Group, or (e) permit the present value
of all benefit liabilities, as defined in Title IV of
ERISA, under each Plan of the Borrower or any member
of its Controlled Group (using the actuarial
assumptions utilized by the PBGC upon termination of
a plan) to materially (in the opinion of the
Determining Lenders) exceed the fair market value of
Plan assets allocable to such benefits all determined
as of the most recent valuation date for each such
Plan.
Section 7.10 Leverage Ratio. At the end of each fiscal
quarter occurring during the periods indicated below, the
Borrower shall not permit the Leverage Ratio to be greater than:
Period Ratio
From date hereof through December 31, 1996 5.25 to 1
Thereafter through December 31, 1997 5.00 to 1
Thereafter through December 31, 1998 4.75 to 1
Thereafter 4.50 to 1
Provided, that in the event the Collateral is
released at any time during the period from the
Agreement Date through December 31, 1996, the
Leverage Ratio during such period shall not be
greater than 5.00 to 1.
Section 7.11 Fixed Charges Coverage Ratio. The
Borrower shall not permit the ratio of (a)
Operating Cash Flow for the four consecutive fiscal
quarters then ending to (b) Fixed Charges for such
fiscal quarters as of the last day of any fiscal
quarter during the term of this Agreement, to be less
than 1.10 to 1.
Section 7.12 Interest Coverage Ratio. At the
end of each fiscal quarter, the Borrower shall not
permit the ratio of (a) Operating Cash Flow for the
four consecutive fiscal quarters then ending, to (b)
interest expense of the Borrower and its Subsidiaries
for such quarters, to be less than 2.0 to 1.
Section 7.13 Debt Service Coverage
Ratio. The Borrower shall not permit the ratio of
(a) Operating Cash Flow for the four consecutive
fiscal quarters then ending, to (b) Pro-Forma Debt
Service for the four succeeding fiscal quarters, to
be less than 1.25 to 1 at the end of each fiscal
quarter during the term of this Agreement.
Section 7.14 Capital Stock of the Borrower.
The Borrower shall not, and shall not permit any
Restricted Subsidiary to, make or permit any
issuance, transfer, assignment, distribution,
mortgage, pledge or gift of any shares of Pledged
Stock, except in connection with issuances permitted
by Schedule 5 hereto and then only if such
shares are pledged and delivered to the
Administrative Lender pursuant to the pledge
agreements.
Section 7.15 Sale and Leaseback. The Borrower
shall not, and shall not permit any Restricted
Subsidiary to, enter into any arrangement whereby it
sells or transfers any of its assets, and thereafter
rents or leases such assets.
Section 7.16 Sale or Discount of Receivables.
The Borrower shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly
sell, with or without recourse, for discount or
otherwise, any notes or accounts receivable.
Section 7.17 Business of Television Licenses
and Radio Licenses and Metroplex Licenses.
Notwithstanding anything in this Agreement to the
contrary, Borrower shall not permit Television
Licenses, Radio Licenses, or Metroplex Licenses to
engage in any business other than the ownership of
(i) FCC licenses and Necessary Authorizations for
the operation of Television, Radio and Metroplex,
respectively, and (ii) at least 95% of the Capital
Stock of Television and 100% of the Capital
Stock of Radio and Metroplex, respectively.
Section 7.18 Subordinated Debt. The Borrower
shall not, and shall not permit any Subsidiary to,
(a) make any payment of principal, interest, premium,
fee or otherwise with respect to Subordinated Debt
except in strict accordance with the terms of
the Subordinated Debt documentation, (b) prepay,
redeem, repurchase or defease, or set aside funds
for the prepayment, redemption, repurchase or
defeasance of all or any portion of the
Subordinated Debt or (c) amend or change (or take any
action or fail to take any action the result of
which is an effective amendment or change) or accept
any waiver or consent with respect to, any document
or instrument in connection with any Subordinated
Debt that would result in (i) an increase in the
outstanding principal amount of the Subordinated
Debt, (ii) a change in any principal, interest, fees,
or other amounts payable under the Subordinated Debt
(including without limitation a waiver or action that
results in the waiver of any payment default under
the Subordinated Debt), (iii) a change in any date
fixed for any payment of principal, interest, fees,
or other amounts payable under the Subordinated Debt
(including, without limitation, as a result of
any redemption, defeasance or otherwise), (iv) a
change in any percentage of holders of the
Subordinated Debt required to take (or refrain from
taking) any action, (v) a change in any financial
covenant, (vi) a change in any remedy or right of
the holders of the Subordinated Debt, (vii) a
change in any covenant, term or provision which
would result in such term or provision being more
restrictive than the terms of this Agreement and the
other Loan Documents, (viii) a change that
grants or permits the granting of any security
interest or Lien on any asset or property of
the Borrower or any Subsidiary to secure any
Subordinated Debt, or (ix) a change in any term or
provision of any document or instrument in connection
with any Subordinated Debt that could have, in any
material respect, an adverse effect on the interests
of Lenders.
Section 7.19 Other Agreements. Except
as otherwise provided in this Agreement, neither
Borrower nor any Restricted Subsidiary shall enter
into any agreement pursuant to which the ability of
the Borrower or a Restricted Subsidiary to pay any
money, dividend or other type of advance to, or
otherwise make any other Investment in, the Borrower
or any Restricted Subsidiary shall be limited or in
which such payment would be a default or event of
default.
ARTICLE 8
Default
Section 8.1 Events of Default. Each of
the following shall constitute an Event of Default,
whatever the reason for such event, and whether
voluntary, involuntary, or effected by operation of
law or pursuant to any judgment or order of any court
or any order, rule or regulation of any governmental
or non-governmental body:
(a) Any representation or warranty made under
any Loan Document shall prove to have been incorrect
or misleading in any material respect when made;
(b) The Borrower shall default in the payment of
(i) any interest under any Note or any fees payable
hereunder or any other costs, fees, expenses or
other amounts payable hereunder or under the Loan
Documents, when due, which Default is not cured
within three days from the date such payment became
due by payment of such late amount, or (ii) any
principal under any of the Notes;
(c) The Borrower or any Restricted Subsidiary
shall default in the performance or observance of any
agreement or covenant contained in Section 5.1 or
Article 7 hereof;
(d) The Borrower or any Restricted Subsidiary
shall default in the performance or observance of any
other agreement or covenant contained in this
Agreement not specifically referred to
elsewhere in this Section 8.1, and such default
shall not be cured within a period of 30 days after
the earlier of written notice from the
Administrative Lender thereof or actual notice
thereof;
(e) There shall occur any default or
breach in the performance or observance of any
agreement or covenant (after the expiration of any
applicable grace period) or breach of any
representation or warranty contained in any of the
Loan Documents (other than this Agreement);
(f) There shall be entered a decree or order
by a court having jurisdiction in the premises
constituting an order for relief in respect of the
Borrower or any Subsidiary under Title 11 of the
United States Code, as now constituted or hereafter
amended, or any other applicable Federal or state
bankruptcy law or other similar law, or appointing a
receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official of the Borrower or
any Subsidiary, or of any substantial part of their
respective properties, or ordering the winding-up or
liquidation of the affairs of the Borrower or any
Subsidiary, and any such decree or order shall
continue unstayed and in effect for a period of 60
consecutive days;
(g) The Borrower or any Subsidiary shall file a
petition, answer or consent seeking relief under
Title 11 of the United States Code, as now
constituted or hereafter amended, or any other
applicable Federal or state bankruptcy law or other
similar law, or the Borrower or any Subsidiary shall
consent to the institution of proceedings thereunder
or to the filing of any such petition or to the
appointment or taking of possession of a
receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the
Borrower or any Subsidiary or of any substantial part
of their respective properties, or the Borrower or
any Subsidiary shall fail generally to pay its debts
as they become due, or the Borrower or any Subsidiary
shall take any action in furtherance of any such
action;
(h) A final judgment or judgments shall be
entered by any court against the Borrower or any
Subsidiary for the payment of money which exceeds
$500,000 in the aggregate, or a warrant of attachment
or execution or similar process shall be issued or
levied against property of the Borrower or any
Subsidiary which, together with all other such
property of the Borrower and its Subsidiaries subject
to other such process, exceeds in value $500,000 in
the aggregate, and if such judgment or award is not
insured or, within 30 days after the entry,
issue or levy thereof, such judgment, warrant or
process shall not have been paid or discharged or
stayed pending appeal, or if, after the expiration of
any such stay, such judgment, warrant or process
shall not have been paid or discharged;
(i) With respect to any Plan of the
Borrower or any member of its Controlled Group: (i)
the Borrower, any such member, or any other party-in
interest or disqualified person shall engage in
transactions which in the aggregate would reasonably
result in a direct or indirect liability to the
Borrower or any member of its Controlled Group in
excess of $750,000 under Section 409 or 502 of
ERISA or Section 4975 of the Code; (ii) the
Borrower or any member of its Controlled Group shall
incur any accumulated funding deficiency, as defined in
Section 412 of the Code, in the aggregate in
excess of $750,000, or request a funding waiver from
the Internal Revenue Service for contributions in
the aggregate in excess of $750,000; (iii) the
Borrower or any member of its Controlled Group shall
incur any withdrawal liability in the aggregate in
excess of $250,000 as a result of a complete or
partial withdrawal within the meaning of Section
4203 or 4205 of ERISA; (iv) the Borrower or any
member of its Controlled Group shall fail to make a
required contribution by the due date under Section
412 of the Code or Section 302 of ERISA which
would
result in the imposition of a lien under Section 412
of the Code or Section 302 of ERISA; (v) the
Borrower, any member of its Controlled Group or any
Plan sponsor shall notify the PBGC of an intent to
terminate, or the PBGC shall institute proceedings
to terminate, or the PBGC shall institute
proceedings to terminate, any Plan; (vi) a
Reportable Event shall occur with respect to a Plan,
and within 15 days after the reporting of such
Reportable Event to the Administrative Lender,
the Administrative Lender shall have notified the
Borrower in writing that the Determining
Lenders have made a determination that, on the basis
of such Reportable Event, there are reasonable
grounds for the termination of such Plan by the PBGC
or for the appointment by the appropriate United
States District Court of a trustee to administer
such Plan and as a result thereof an Event of
Default shall have occurred hereunder; (vii) a
trustee shall be appointed by a court of competent
jurisdiction to administer any Plan or the assets
thereof; (viii) the benefits of any Plan shall be
increased, or the Borrower or any member of its
Controlled Group shall begin to maintain, or begin
to contribute to, any Plan, without the prior
written consent of the Determining Lenders; or (ix)
any ERISA Event with respect to a Plan shall have
occurred, and 30 days thereafter (A) such ERISA
Event, other than such event described in clause
(vi) of the definition of ERISA Event herein, (if
correctable) shall not have been corrected and
(B) the then present value of such Plan's
benefit liabilities, as defined in Title IV of
ERISA, shall exceed the then current value of assets
accumulated in such Plan; provided, however, that
the events listed in subsections (v) through
(ix) shall constitute Events of Default only
if, as of the date thereof or any subsequent
date, the maximum amount of liability that the
Borrower or any member of its Controlled Group could
incur in the aggregate under Section 4062, 4063,
4064, 4219 or 4023 of ERISA or any other provision
of law with respect to all such Plans, computed by
the actuary of the Plan taking into account any
applicable rules and regulations of the PBGC at such
time, and based on the actuarial assumptions used by
the Plan, resulting from or otherwise associated
with such event exceeds $750,000;
(j) All or any material portion of the
Collateral or the Loan Documents shall be the
subject of any proceeding instituted by any Person
other than a Lender (except in connection with
any Lender's exercise of any remedies under the
Loan Documents), or there shall exist any
litigation or threatened litigation with respect to
all or any material portion of the Collateral or
the Loan Documents, or any Person shall challenge
in any manner whatsoever the validity or
enforceability of all or any portion of the Loan
Documents or the Collateral; provided, however, that
during any such time any such circumstance shall be
bonded or stayed in accordance with Applicable Law
and to the satisfaction of the Determining
Lenders, such circumstance shall not be an Event of
Default;
(k) The Borrower or any Restricted Subsidiary
shall default in the payment of any Indebtedness
in an aggregate amount of $750,000 or more beyond
any grace period provided with respect thereto, or
shall default in the performance of any agreement or
instrument under which such Indebtedness is created
or evidenced beyond any applicable grace period,
if the effect of such default is to permit or
cause the holder of such Indebtedness (or a trustee
on behalf of any such holder) to cause such
Indebtedness to become due prior to its date of
maturity;
(l) Less than 90% of the issued and
outstanding Capital Stock of the Restricted
Subsidiaries of the Borrower shall be owned,
directly or indirectly, by the Borrower and by
management of the Borrower; except that, with
respect to the Australian subsidiaries, Borrower
shall own less than 50% of the Capital Stock of such
subsidiaries, and with respect to CCC-Houston,
Borrower shall own less than 79% of such subsidiary;
(m) The Borrower or any Subsidiary shall fail
to comply in any material respect with the
Communications Act, or any rule or regulation
promulgated by the FCC;
(n) Any material Necessary Authorization
shall be revoked; or there shall occur a material
default under any material Necessary Authorization
by the Borrower or any Subsidiary beyond any
applicable grace period; or any proceedings shall in
any way be brought by any Person to challenge the
validity or enforceability of any material
Necessary Authorization and the FCC shall
designate the Necessary Authorization for a
revocation hearing; or proceedings for the
renewal of any material Necessary Authorization
shall not be commenced at least 90 days prior to the
expiration thereof; or any material Necessary
Authorization shall expire due to termination,
nonrenewal or for any other reason, or shall be
designated for a revocation hearing;
(o) Any lease of the Borrower or any Restricted
Subsidiary shall terminate or cease to be effective,
and termination or cessation thereof could
reasonably be expected to have a Material Adverse
Effect; provided, however, that termination or
cessation of a lease shall not constitute an Event
of Default if another lease reasonably satisfactory
to the Determining Lenders is contemporaneously
substituted therefor;
(p) Any material provision of any Loan
Document shall for any reason cease to be valid
and binding on or enforceable against any party to
it (other than the Administrative Lender or any
Lender) in all material respects, or any such
party shall so state in writing; or
(q) There shall exist any breach or
default of any management agreement or contract
of the Borrower or any Restricted Subsidiary,
or any such management agreement or contract shall
terminate in accordance with its terms and shall not
be renewed among the parties upon substantially
similar terms, and such breach, default or
termination could reasonably be expected to have a
Material Adverse Effect.
Section 8.2 Remedies. If an Event of Default
shall have occurred and shall be continuing:
(a) With the exception of an Event of Default
specified in Section 8.1(f) or (g) hereof, the
Administrative Lender shall, upon the direction
of the Determining Lenders, terminate the
Commitments and/or declare the principal of and
interest on the Advances and all Obligations and
other amounts owed under the Loan Documents to be
forthwith due and payable without presentment,
demand, protest or notice of any kind, all of which
are hereby expressly waived, anything in the Loan
Documents to the contrary notwithstanding.
(b) Upon the occurrence of an Event of Default
specified in Section 8.1(f) or (g) hereof,
such principal, interest and other amounts shall
thereupon and concurrently therewith become due and
payable and the Commitments shall forthwith
terminate, all without any action by the
Administrative Lender, any Lender or any holders
of the Notes and without presentment, demand,
protest or other notice of any kind, all of which
are expressly waived, anything in the Loan
Documents to the contrary notwithstanding.
(c) If any Letter of Credit shall be then
outstanding, the Administrative Lender may (or, upon
the direction of the Determining Lenders, shall)
demand upon the Borrower to, and forthwith upon such
demand, the Borrower shall, pay to the
Administrative Lender in same day funds at the
office of the Administrative Lender on such demand
for deposit in the L/C Cash Collateral Account, an
amount equal to the maximum amount available to
be drawn under the Letters of Credit then
outstanding; provided, however, that upon the occurrence of an
Event of Default pursuant to Section 8.1(f) or 8.1
(g) hereof, such amount shall become immediately due
and payable without the requirement of any action on
the part of Administrative Lender.
(d) The Administrative Lender, and the Lenders
may exercise all of the post-default rights granted
to them under the Loan Documents or under Applicable
Law.
(e) The rights and remedies of the
Administrative Lender and the Lenders hereunder
shall be cumulative, and not exclusive.
ARTICLE 9
Changes in Circumstances
Section 9.1 LIBOR Basis Determination
Inadequate. If with respect to any proposed LIBOR
Advance for any Interest Period, any Lender
determines that (i) deposits in dollars (in the
applicable amount) are not being offered to that
Lender in the relevant market for such Interest
Period or (ii) the LIBOR Basis for such
proposed LIBOR Advance does not adequately cover
the cost to such Lender of making and maintaining
such proposed LIBOR Advance for such Interest
Period, such Lender shall forthwith give notice
thereof to the Borrower, whereupon until such Lender
notifies the Borrower that the circumstances giving
rise to such situation no longer exist, the
obligation of such Lender to make LIBOR Advances
shall be suspended.
Section 9.2 Illegality. If any applicable law,
rule or regulation, or any change therein or
adoption thereof, or interpretation or
administration thereof by any governmental
authority, central bank or comparable agency charged
with the interpretation or administration thereof,
or compliance by any Lender (or its LIBOR Lending
Office) with any request or directive (whether or
not having the force of law) of any such authority,
central bank or comparable agency, shall make it
unlawful or impossible for such Lender (or its LIBOR
Lending Office) to make, maintain or fund its LIBOR
Advances, such Lender shall so notify the Borrower
and the Administrative Lender. Before giving any
notice to the Borrower pursuant to this Section, the
notifying Lender shall designate a different LIBOR
Lending Office or other lending office if such
designation will avoid the need for giving such
notice and will not, in the sole judgment of the
Lender, be materially disadvantageous to the Lender.
Upon receipt of such notice, notwithstanding
anything contained in Article 2 hereof, the
Borrower shall repay in full the then
outstanding principal amount of each LIBOR
Advance owing to the notifying Lender, together
with accrued interest thereon, on either (a) the
last day of the Interest Period applicable to such
Advance, if the Lender may lawfully continue to
maintain and fund such Advance to such day, or (b)
immediately, if the Lender may not lawfully continue
to fund and maintain such Advance to such day.
Concurrently with repaying each affected LIBOR
Advance owing to such Lender, notwithstanding
anything contained in Article 2 hereof, the Borrower
shall borrow a Base Rate Advance from such Lender,
and such Lender shall make such Base Rate Advance,
in an amount such that the outstanding principal
amount of the Advances owing to such Lender shall
equal the outstanding principal amount of the
Advances owing immediately prior to such repayment.
Section 9.3 Increased Costs.
(a) If any applicable law, rule or regulation,
or any change in or adoption of any law, rule or
regulation, or any interpretation or administration
thereof by any governmental authority, central bank
or comparable agency charged with the interpretation
or administration thereof or compliance by any
Lender (or its LIBOR Lending Office) with any
request or directive (whether or not having the
force of law) of any such authority, central bank or
compatible agency:
(i) shall subject a Lender (or its
LIBOR Lending Office) to any tax, duty or other
charge (net of any tax benefit engendered thereby)
with respect to its LIBOR Advances or its
obligation to make such Advances, or shall change
the basis of taxation of payments to a Lender (or to
its LIBOR Lending Office) of the principal of or
interest on its LIBOR Advances or in respect of any
other amounts due under this Agreement, as the case
may be, or its obligation to make such Advances
(except for changes in the rate of tax on the
overall net income of the Lender or its LIBOR
Lending Office and franchise taxes imposed upon such Lender); or
(ii) shall impose, modify or deem
applicable any reserve (including, without
limitation, any imposed by the Board of
Governors of the Federal Reserve System),
special deposit or similar requirement against
assets of, deposits with or for the account of,
or credit extended by, a Lender's LIBOR Lending
Office or shall impose on the Lender (or its
LIBOR Lending Office) or on the
United States market for certificates of deposit or
the London interbank market any other condition
affecting its LIBOR Advances or its obligation to
make such Advances;
and the result of any of the foregoing is to
increase the cost to a Lender (or its LIBOR
Lending Office) of making or maintaining any LIBOR
Advances, or to reduce the amount of any sum
received or receivable by a Lender (or its LIBOR
Lending Office) with respect thereto, by an amount
deemed by a Lender to be material, then, within 15
days after demand by a Lender, the Borrower agrees
to pay to such Lender such additional amount as will
compensate such Lender for such increased costs or
reduced amounts. The affected Lender will as soon
as practicable notify the Borrower of any event of
which it has knowledge, occurring after the date
hereof, which will entitle such Lender to
compensation pursuant to this Section and will
designate a different LIBOR Lending Office or other
lending office if such designation will avoid the
need for, or reduce the amount of, such compensation
and will not, in the sole judgment of the affected
Lender made in good faith, be disadvantageous to
such Lender.
(b) A certificate of any Lender claiming
compensation under this Section and setting forth
the additional amounts to be paid to it hereunder
and calculations therefor shall be conclusive in the
absence of manifest error. In determining such
amount, a Lender may use any reasonable averaging
and attribution methods. If a Lender demands
compensation under this Section, the Borrower may
at any time, upon at least five Business Days' prior
notice to the Lender, after reimbursement to the
Lender by the Borrower in accordance with this
Section of all costs incurred, prepay in full the
then outstanding LIBOR Advances of the Lender,
together with accrued interest thereon to the date
of prepayment, along with any reimbursement
required under Section 2.9 hereof. Concurrently
with prepaying such LIBOR Advances, the Borrower
shall borrow a Base Rate Advance from the Lender,
and the Lender shall make such Base Rate Advance, in
an amount such that the outstanding principal amount
of the Advances owing to such Lender shall equal the
outstanding principal amount of the Advances owing
immediately prior to such prepayment.
Section 9.4 Effect On Base Rate Advances. If
notice has been given pursuant to Section 9.1, 9.2
or 9.3 hereof suspending the obligation of a Lender
to make LIBOR Advances, or requiring LIBOR Advances
of a Lender to be repaid or prepaid, then, unless
and until the Lender notifies the Borrower that the
circumstances giving rise to such repayment no
longer apply, all Advances which would otherwise be
made by such Lender as LIBOR Advances shall be made
instead as Base Rate Advances.
Section 9.5 Capital Adequacy. If either (a)
the introduction of or any change in or in the
interpretation of any law, rule or regulation or
(b) compliance by a Lender with any law, rule or
regulation or any guideline or request from any
central bank or other governmental authority
(whether or not having the force of law) affects or
would affect the amount of capital required or
expected to be maintained by a Lender or any
corporation controlling such Lender (any event or
occurrence in clauses (a) or (b) above being a
"Regulatory Modification"), and such Lender
reasonably determines that the amount of such
capital is increased by or based upon the existence
of such Lender's commitment or Advances hereunder
and other commitments or advances of such Lender
of this type, then, upon demand by such Lender,
subject to Section 11.10, the Borrower
shall immediately pay to such Lender, from time to
time as specified by such Lender, additional amounts
sufficient to compensate such Lender with respect to
such circumstances (collectively, "Additional
Costs"), to the extent that such Lender reasonably
determines in good faith such increase in capital
to be allocable to the existence of such Lender's
Commitment hereunder. Notwithstanding the
foregoing, any Lender's demand for Additional Costs
shall not include any Additional Costs with respect
to any period more than 180 days prior to the date
that such Lender gives notice to the Borrower of
such Additional Costs unless the effective date of
the Regulatory Modification which results in the
right to receive Additional Costs is retroactive
(the "Regulatory Modification Retroactive
Effective Date"). If any Regulatory Modification
has a Regulatory Modification Retroactive Effective
Date and any Lender demands compensation within 180
days after the date setting the Regulatory
Modification Retroactive Effective Date (the
"Regulatory Modification Set Date"), such Lender
shall have the right to receive such Additional
Costs from the Regulatory Modification Retroactive
Effective Date. If a Lender does not demand such
Additional Costs within 180 days after
the Regulatory Modification Set Date, such lender
may not receive payment of Additional Costs with
respect to any period more than 180 days prior to
such demand.
A certificate as to such amounts submitted to the
Borrower by a Lender hereunder, shall, in the
absence
of demonstrable error, be conclusive and binding for
all purposes.
ARTICLE 10
AGREEMENT AMONG LENDERS
Section 10.1 Agreement Among Lenders. The Lenders
agree among themselves that:
(a) Administrative Lender. Each Lender hereby
appoints the Administrative Lender as its nominee
in its name and on its behalf, to receive all
documents and items to be furnished hereunder; to
act as nominee for and on behalf of all Lenders
under the Loan Documents; to take such action as may
be requested by Determining Lenders, provided
that, unless and until the Administrative Lender
shall have received such requests, the
Administrative Lender may take such administrative
action, or refrain from taking such administrative
action, as it may deem advisable and in the best
interests of the Lenders; to arrange the means
whereby the proceeds of the Advances of the Lenders
are to be made available to the Borrower; to
distribute promptly to each Lender information,
requests and documents received from the
Borrower, and each payment (in like funds received)
with respect to any of such Lender's Advances, fee
or other amount; and to deliver to the Borrower
requests, demands, approvals and consents received
from the Lenders. Administrative Lender agrees to
promptly distribute to each Lender, at such
Lender's address set forth below information,
requests, documents and payments received from the
Borrower.
(b) Replacement of Administrative Lender.
Should the Administrative Lender or any successor
Administrative Lender ever cease to be a Lender
hereunder, or should the Administrative Lender or
any successor Administrative Lender ever resign as
Administrative Lender, or should the Administrative
Lender or any successor Administrative Lender ever
be removed with or without cause by the
Determining Lenders, then the Lender appointed by
the other Lenders shall forthwith become the
Administrative Lender, and the Borrower and the
Lenders shall execute such documents as any Lender
may reasonably request to reflect such change. Any
resignation or removal of the Administrative Lender
or any successor Administrative Lender shall become
effective upon the appointment by the Lenders of a
successor Administrative Lender; provided, however,
that if the Lenders fail for any reason to appoint a
successor within 60 days after such removal or
resignation, the Administrative Lender or any
successor Administrative Lender (as the case may be)
shall thereafter have no obligation to act as
Administrative Lender hereunder.
(c) Expenses. Each Lender shall pay its pro
rata share, based on its Specified Percentage, of
any reasonable expenses paid by the Administrative
Lender directly and solely in connection with any
of the Loan Documents if Administrative Lender does
not receive reimbursement therefor from other
sources within 60 days after the date incurred,
unless payment of such fees is being diligently disputed
by such Lender or the Borrower in good faith. Any amount so
paid by the Lenders to the Administrative Lender
shall be returned by the Administrative Lender pro
rata to each paying Lender to the extent later
paid by the Borrower or any other Person on the
Borrower's behalf to the Administrative Lender.
(d) Delegation of Duties. The Administrative
Lender may execute any of its duties hereunder by or
through officers, directors, employees, attorneys or
agents, and shall be entitled to (and shall be
protected in relying upon) advice of counsel
concerning all matters pertaining to its duties
hereunder.
(e) Reliance by Administrative Lender. The
Administrative Lender and its officers,
directors, employees, attorneys and agents shall
be entitled to rely and shall be fully protected in
relying on any writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram,
telegram, telex or teletype message, statement,
order, or other document or conversation reasonably
believed by it or them in good faith to be genuine
and correct and to have been signed or
made by the proper Person and, with
respect to legal matters, upon opinions of counsel
selected by the Administrative Lender. The
Administrative Lender may, in its reasonable
judgment, deem and treat the payee of any Note as
the owner thereof for all purposes hereof.
(f) Limitation of Administrative
Lender's Liability. Neither the Administrative
Lender nor any of its officers, directors,
employees, attorneys or agents shall be liable for
any action taken or omitted to be taken by it or
them hereunder in good faith and believed by it or
them to be within the discretion or power conferred
to it or them by the Loan Documents or be
responsible for the consequences of any error of
judgment, except for its or their own gross
negligence or wilful misconduct. Except as
aforesaid, the Administrative Lender shall be under
no duty to enforce any rights with respect to any of
the Advances, or any security therefor. The
Administrative Lender shall not be compelled to do
any act hereunder or to take any action towards the
execution or enforcement of the powers hereby
created or to prosecute or defend any suit in
respect hereof, unless indemnified to its
satisfaction against loss, cost, liability and
expense. The Administrative Lender shall not be
responsible in any manner to any Lender for the
effectiveness, enforceability, genuineness, validity
or due execution of any of the Loan
Documents, or for any representation,
warranty, document, certificate, report or statement
made herein or furnished in connection with any
Loan Documents, or be under any obligation to any
Lender to ascertain or to inquire as to the
performance or observation of any of the terms,
covenants or conditions of any Loan Documents on the
part of the Borrower. To the extent not reimbursed
by the Borrower, each Lender hereby severally, but
not jointly, indemnifies and holds harmless the
Administrative Lender, pro rata according to its
Specified Percentage, from and against any
and all liabilities, obligations,
losses, damages, penalties, actions, judgments,
suits, costs, expenses and/or disbursements of any
kind or nature whatsoever which may be imposed on,
asserted against, or incurred by the Administrative
Lender in any way with respect to any Loan
Documents or any action taken or omitted by the
Administrative Lender under the Loan Documents
(including any negligent action of the
Administrative Lender), except to the extent the
same result from gross negligence or wilful
misconduct by the Administrative Lender.
(g) Liability Among Lenders. No Lender shall
incur any liability (other than the sharing of
expenses and other matters specifically set forth
herein and in the other Loan Documents) to any other
Lender, except for acts or omissions in bad faith.
(h) Rights as Lender. With respect to its
commitment hereunder, the Advances made by it and
Note issued to it, the Administrative Lender shall
have the same rights as a Lender and may exercise
the same as though it were not the Administrative
Lender, and the term "Lender" or "Lenders" shall,
unless the context otherwise indicates, include the
Administrative Lender in its individual capacity.
The Administrative Lender or any Lender may accept
deposits from, act as trustee under indentures of,
and generally engage in any kind of business with,
the Borrower and any of its Affiliates, and any
Person who may do business with or own securities of
the Borrower or any of its Affiliates, all as if
the Administrative Lender were not the
Administrative Lender hereunder and without any
duty to account therefor to the Lenders.
Section 10.2 Lender Credit Decision. Each
Lender acknowledges that it has, independently and
without reliance upon the Administrative Lender or
any other Lender and based upon the financial
statements referred to in Sections 4.1(j), 6.1 and
6.2 hereof, and such other documents and information
as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement.
Each Lender also acknowledges that it will,
independently and without reliance upon the
Administrative Lender or any other Lender and based
upon such documents and information as it shall
deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action
under this Agreement and the other Loan Documents.
Section 10.3 Benefits of Article. None of
the provisions of this Article shall inure to the
benefit of any Person other than Lenders or the
Borrower, as applicable; consequently, no Person
other than Lenders or the Borrower shall be
entitled to rely upon, or to raise as a defense,
in any manner whatsoever, the failure of the
Administrative Lender or any Lender to comply with
such provisions.
ARTICLE 11
Miscellaneous
Section 11.1 Notices.
(a) All notices and other communications
under this Agreement shall be in writing and shall
be deemed to have been given on the date personally
delivered or sent by telecopy (answerback received),
or three days after deposit in the mail, designated
as registered mail, return receipt requested,
postage-prepaid, or one day after being entrusted
to a reputable commercial overnight delivery
service, or one day after being delivered to
the telegraph office or sent out by telex addressed
to the party to which such notice is directed at its
address determined as provided in this Section. All
notices and other communications under this
Agreement shall be given to the parties hereto at
the following addresses:
(i) If to the Borrower, at:
Clear Channel Communications, Inc.
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Vice
President-Treasurer
(ii) If to the Administrative Lender, at:
NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice
President
(iii) If to a Lender, at its address shown
below its name on the signature pages hereof, or
if applicable, set forth in its Assignment
Agreement.
(b) Any party hereto may change the address to
which notices shall be directed by giving 10
days' written notice of such change
to the other parties.
Section 11.2 Expenses. The Borrower shall
promptly pay:
(a) all reasonable out-of-pocket expenses of the
Administrative Lender in connection with the
preparation, negotiation, execution and delivery of
this Agreement and the other Loan Documents, the
transactions contemplated hereunder and thereunder,
and the making of Advances and the issuance of
Letters of Credit hereunder, including without
limitation the reasonable fees and disbursements of
Special Counsel;
(b) all reasonable out-of-pocket expenses of the
Administrative Lender in connection with the
administration of the transactions contemplated in
this Agreement and the other Loan Documents, the
preparation, negotiation, execution and delivery
of any waiver, amendment or consent by the Lenders
relating to this Agreement or the other Loan
Documents; and
(c) all reasonable costs, out-of-pocket expenses
and attorneys' fees of the Administrative Lender and
each Lender incurred for enforcement, collection,
restructuring, refinancing and "work-out", or
otherwise incurred in obtaining performance under the
Loan Documents, and all reasonable costs and out-of-
pocket expenses of collection if default is made in
the payment of the Notes, which in each case shall
include without limitation reasonable fees and expenses of
consultants, counsel for the Administrative Lender
and any Lender, and administrative fees for the
Administrative Lender.
Section 11.3 Waivers. The rights and
remedies of the Lenders under this Agreement and
the other Loan Documents shall be cumulative and not
exclusive of any rights or remedies which they would
otherwise have. No failure or delay by the
Administrative Lender or any Lender in exercising any
right shall operate as a waiver of such right. The
Lenders expressly reserve the right to require strict
compliance with the terms of this Agreement in
connection with any funding of a request for an
Advance and the Issuing Bank expressly reserves the
right to require strict compliance with the terms
of this Agreement in connection with any issuance of
a Letter of Credit. In the event that any Lender
decides to fund an Advance or the Issuing Bank
decides to issue a Letter of Credit at a time when
the Borrower is not in strict compliance with the
terms of this Agreement, such decision by such
Lender shall not be deemed to constitute an
undertaking by the Lender to fund any further
requests for Advances or by the Issuing Bank to
issue any additional Letter of Credit or preclude the
Lenders from exercising any rights available under
the Loan Documents or at law or equity. Any waiver
or indulgence granted by the Lenders shall not
constitute a modification of this
Agreement, except to the extent expressly provided in
such waiver or indulgence, or constitute a course of
dealing by the Lenders at variance with the terms
of the Agreement such as to require further notice
by the Lenders of the Lenders' intent to require
strict adherence to the terms of this Agreement in
the future. Any such actions shall not in any way
affect the ability of the Administrative Lender or
the Lenders, in their discretion, to exercise any
rights available to them under this Agreement or
under any other agreement, whether or not the
Administrative Lender or any of the Lenders are a
party thereto, relating to the Borrower.
Section 11.4 Determination by the Lenders
Conclusive and Binding. Any material determination
required or expressly permitted to be made by the
Administrative Lender or any Lender under this
Agreement shall be made in its reasonable judgment
and in good faith, and shall when made, absent
manifest error, be conclusive and binding on all
parties.
Section 11.5 Set-Off. In addition to any
rights now or hereafter granted under Applicable
Law and not by way of limitation of any such
rights, upon the occurrence of an Event of Default,
each Lender and any subsequent holder of any
Note, and any assignee or participant in any Note
is hereby authorized by the Borrower at any time or
from time to time, without notice to the Borrower or
any other Person, any such notice being hereby
expressly waived, to set-off, appropriate and apply
any deposits (general or special (except trust and
escrow accounts), time or demand, including without
limitation Indebtedness evidenced by certificates of
deposit, in each case whether matured or unmatured)
and any other Indebtedness at any time held or owing by such Lender
or holder to or for the credit or the account of the
Borrower, against and on account of the Obligations
and other liabilities of the Borrower to such Lender
or holder, irrespective of whether or not (a) the
Lender or holder shall have made any demand
hereunder, or (b) the Lender or holder shall have
declared the principal of and interest on the
Advances and other amounts due hereunder to be due
and payable as permitted by Section 8.2 and although
such obligations and liabilities, or any of
them, shall be contingent or unmatured. Any sums
obtained by any Lender or by participant or subsequent
holder of any Note shall be subject to pro rata treatment
of all Obligations and other liabilities hereunder.
Section 11.6 Assignment.
(a) The Borrower may not assign or transfer
any of its rights or obligations hereunder or under the other
Loan Documents without the prior written consent of the Lenders.
(b) No Lender shall be entitled to assign its
interest in this Agreement, its Notes or its Advances, except as
hereinafter set forth.
(c) A Lender may at any time sell participations in all
or any part of its Advances (collectively, "Participations")
to any banks or other financial institutions ("Participants")
provided that such Participation shall not confer on
any Person (other than the parties hereto) any right
to vote on, approve or sign amendments or waivers,
or any other independent benefit or any legal
or equitable right, remedy or other claim under this
Agreement or any other Loan Documents, other than the right to vote on,
approve, or sign amendments or waivers or consents
with respect to items that would result in (i)
any increase in the commitment of any Participant; or
(ii)(A) the extension of the date of maturity of, or
(B) the extension of the due date for any payment of
principal, interest or fees respecting, or (C) the
reduction of the amount of any installment of
principal or interest on or the change or
reduction of any mandatory reduction required
hereunder, or (D) a reduction of the rate of
interest on, the Advances, the Letters of Credit, or
the Reimbursement Obligations, or change in
Applicable Margin; or (iii) the release of security
for the Obligations, including without limitation any
guarantee or Pledged Stock; or (iv) the reduction of
any fees payable hereunder. Notwithstanding the
foregoing, the Borrower agrees that the Participants
shall be entitled to the benefits of Article 9 and
Section 11.5 hereof as though they were Lenders and
the Lenders may provide copies of all financial
information received from the Borrower to such
Participants. To the fullest extent it may
effectively do so under Applicable Law, the
Borrower agrees that any Participant may exercise any
and all rights of banker's lien, set-off and
counterclaim with respect to this Participation as
fully as if such Participant were the holder of the
Advances in the amount of its Participation.
(d) Each Lender may assign to one or more
financial institutions or funds organized under the
laws of the United States, or any state thereof, or
under the laws of any other country that is a member
of the Organization for Economic Cooperation and
Development, or a political subdivision of any
such country, which is engaged in making, purchasing
or otherwise investing in commercial loans in the
ordinary course of its business (each, an "Assignee")
its rights and obligations under this Agreement and
the other Loan Documents up to a total of 49% of its
Specified Percentage of the Commitment; provided, however,
that (i) each such assignment shall be subject to the
prior written consent of the Administrative Lender
and Borrower, which approval shall not be
unreasonably withheld (provided that without the
consent of the Borrower or the Administrative Lender,
any Lender may make assignments to its Affiliates or
another Lender),
(ii) each such assignment shall be of a constant, and
not a varying, percentage of the Lender's rights and
obligations under this Agreement, (iii) the amount of
the Commitment, Advances and Reimbursement
Obligations being assigned pursuant to each such
assignment (determined as of the date of the
assignment with respect to such assignment) shall in
no event be less than $5,000,000 and which is an
integral multiple of $1,000,000,
(iv) the applicable Lender, Administrative Lender and
applicable Assignee shall execute and deliver to the
Administrative Lender an Assignment and Acceptance
Agreement (an "Assignment Agreement") in
substantially the form of Exhibit I hereto, together
with the Notes subject to such assignment, (v) the
Assignee or the Lender executing the Assignment as
the case may be, shall deliver to the Administrative
Lender a processing fee of $2,500 and (vi)
notwithstanding anything herein to the contrary, any
Lender may assign up to a total of 100% of its
Specified Percentage of the Commitment with the prior
written consent of the Borrower and the
Administrative Lender, which consent may be
withheld for any reason or for no reason. Upon such
execution, delivery and acceptance from and after the
effective date specified in each Assignment, which
effective date shall be at least three Business Days
after the execution thereof, (A) the Assignee
thereunder shall be party hereto and, to the extent
that rights and obligations hereunder have been
assigned to it pursuant to such Assignment, have the
rights and obligations of a Lender hereunder
and (B) the assigning Lender shall, to the extent
that rights and obligations hereunder have been
assigned by it pursuant to such Assignment,
relinquish such rights and be released from such
obligations under this Agreement. The Borrower shall
not be liable for any fees or expenses of the
Administrative Lender, any Lender, or any
Assignee, incurred in connection with such an
Assignment.
(e) Notwithstanding anything in clause (d) above
to the contrary, any Lender may assign and pledge all
or any portion of its Advances and Note to any
Federal Reserve Bank as collateral security pursuant
to Regulation A of F.R.S. Board and
any Operating Circular issued by such Federal Reserve
Bank; provided, however, that no such assignment
under this clause (e) shall release the assignor
Lender from its obligations hereunder. (f)
Upon its receipt of an Assignment Agreement executed
by a Lender and an Assignee, and any note or notes
subject to such assignment, the Borrower shall,
within three Business Days after its receipt of such
Assignment Agreement, at its own expense, execute and
deliver to the Administrative Lender in exchange for
the surrendered Notes new Notes to the order of such
Assignee in an amount equal to the portion of the
Advances, Reimbursement Obligations and Commitment
assigned to it pursuant to such Assignment Agreement
and new Notes to the order of the Administrative
Lender in an amount equal to the portion of the
Advances and Commitment retained by it hereunder.
Such new notes shall be in an aggregate principal
amount equal to the aggregate principal amount of
such surrendered Notes, shall be dated the effective
date of such Assignment Agreement and shall
otherwise be in substantially the form of Exhibit A
hereto.
(g) No Lender may, without the prior
consent of the Borrower, which shall not be
unreasonably withheld, in connection with any
assignment or Participation or proposed
assignment or Participation pursuant to this
Section 11.6, disclose to the Assignee or Participant
or proposed Assignee or Participant, any information
(which is not otherwise publicly available) relating
to the Borrower furnished to such Lender by or
on behalf of the Borrower, unless such proposed
assignee or participant agrees to keep such
information confidential and signs a confidentiality
agreement in a form substantially similar to the
confidentiality agreement signed by the Persons
who were Lenders on the Agreement Date. The Borrower
may not prohibit any Participation by withholding its
consent pursuant to this Section 11.6(g).
(h) Except as specifically set forth in this
Section 11.6, nothing in this Agreement or any other
Loan Documents, expressed or implied, is intended to
or shall confer on any Person other than the
respective parties hereto and thereto and their
successors and assignees permitted hereunder and
thereunder any benefit or any legal or equitable
right, remedy or other claim under this Agreement or
any other Loan Documents.
Section 11.7 Release of Collateral. At the
Borrower's option, Borrower may request that the
lien on the Capital Stock of Borrower's
Subsidiaries be released in the event that (i)
Borrower obtains a senior unsecured debt rating of at
least BBB- from S&P or Baa3 from ▇▇▇▇▇'▇ and (ii)
no Default or Event of Default has occurred and is
continuing. Upon receipt of such request, the
Administrative Lender shall release such Collateral.
Section 11.8 Counterparts. This Agreement may
be executed in any number of counterparts, each of
which shall be deemed to be an original, but all
such separate counterparts shall together constitute
but one and the same instrument.
Section 11.9 Severability. Any provision of
this Agreement which is for any reason prohibited or
found or held invalid or unenforceable by any court
or governmental agency shall be ineffective to the
extent of such prohibition or invalidity or
unenforceability without invalidating the remaining
provisions hereof in such jurisdiction or affecting
the validity or enforceability of such provision in
any other jurisdiction.
Section 11.10 Interest and Charges. It is not
the intention of any parties to this Agreement
to make an agreement in violation of the laws of
any applicable jurisdiction relating to usury.
Regardless of any provision in any Loan Documents,
no Lender shall ever be entitled to receive, collect
or apply, as interest on the Obligations, any amount
in excess of the Maximum Amount. If any Lender or
participant ever receives, collects or applies, as
interest, any such excess, such amount which would be
excessive interest shall be deemed a partial
repayment of principal and treated hereunder as such;
and if principal is paid in full, any remaining
excess shall be paid to the Borrower. In determining
whether or not the interest paid or payable, under
any specific contingency, exceeds the Maximum Amount,
the Borrower and the Lenders shall, to the maximum
extent permitted under Applicable Law, (a)
characterize any nonprincipal payment as an expense,
fee or premium rather than as interest, (b) exclude
voluntary prepayments and the effect thereof, and (c)
amortize, prorate, allocate and spread in equal
parts, the total amount of interest throughout the
entire contemplated term of the Obligations so that
the interest rate is uniform throughout the entire
term of the Obligations; provided, however, that if
the Obligations are paid and performed in full prior
to the end of the full contemplated term thereof,
and if the interest received for the actual period of
existence thereof exceeds the Maximum Amount, the
Lenders shall refund to the Borrower the amount of
such excess or credit the amount of such excess
against the total principal amount of the Obligations
owing, and, in such event, the Lenders shall not be
subject to any penalties provided by any laws for
contracting for, charging or receiving interest in
excess of the Maximum Amount. This Section shall
control every other provision of all agreements
pertaining to the transactions contemplated by or
contained in the Loan Documents.
Section 11.11 Headings. Headings used in this
Agreement are for convenience only and shall not be
used in connection with the interpretation of any
provision hereof.
Section 11.12 Amendment and
Waiver. The provisions of this
Agreement may not be amended,
modified or waived except by the
written agreement of the Borrower
and the Determining Lenders;
provided, however, that no such
amendment, modification or waiver
shall be made (a) without the
consent of all Lenders, if it
would (i) increase the
Specified Percentage or
commitment of any Lender, or
(ii) extend or postpone any
Commitment Reduction, extend or
postpone the date of payment or
maturity of, extend the due date
for any payment of principal or
interest on, reduce the amount of
any installment of principal or
interest on, or reduce the rate
of interest on, any Advance, the
Reimbursement Obligations, fees or
other amounts owing under any
Loan Documents, or (iii)
release any security for or
guaranty of the Obligations
(except pursuant to this
Agreement), or (iv) reduce the
fees payable hereunder, or (v)
revise this Section 11.12, or (v)
waive the date for payment of any
of the Obligations, or (vi)
amend the definition of
Determining Lenders, (vii) revise
Sections 2.5(b), (c) or (d) hereof
or (vii) revise Sections 2.6(b) or
(c) hereof; or (b) without the
consent of the Administrative
Lender, if it would alter the
rights, duties or obligations
of the Administrative Lender.
Neither this Agreement nor any
term hereof may be amended orally,
nor may any provision hereof be
waived orally but only by an
instrument in writing signed by
the Administrative Lender and, in
the case of an amendment, by the
Borrower.
Section 11.13 Exception to Covenants. Neither
the Borrower nor any Restricted Subsidiary shall be
deemed to be permitted to take any action or fail to
take any action which is permitted as an exception
to any of the covenants contained herein or which is
within the permissible limits of any of the covenants
contained herein if such action or omission would
result in the breach of any other covenant contained
herein.
Section 11.14 No Liability of Issuing Bank. The
Borrower assumes all risks of the acts or omissions
of any beneficiary or transferee of any Letter of
Credit with respect to its use of such Letter of
Credit. Neither the Issuing Bank nor any Lender nor
any of their respective officers or directors shall
be liable or responsible for: (a) the use that may
be made of any Letter of Credit or any acts or
omissions of any beneficiary or transferee in
connection therewith; (b) the validity,
sufficiency or genuineness of documents, or of any
endorsement thereon, even if such documents should
prove to be in any or all respects invalid,
insufficient, fraudulent or forged; (c) payment by
the Issuing Bank against presentation of documents
that do not comply with the terms of a Letter of
Credit, including failure of any documents to bear
any reference or adequate reference to the Letter of
Credit, except for any payment made upon the Issuing
Bank's gross negligence or willful misconduct; or (d)
any other circumstances whatsoever in making or
failing to make payment under any Letter of Credit,
except that the Borrower shall have a claim against
the Issuing Bank, and the Issuing Bank shall be
liable to the Borrower, to the extent of any direct,
but not consequential, damages suffered by the
Borrower that the Borrower proves were caused by (i)
the Issuing Bank's willful misconduct or gross
negligence in determining whether documents
presented under any Letter of Credit comply with
the terms of the Letter of Credit or (ii) the Issuing
Bank's willful failure to make lawful payment under a
Letter of Credit after the presentation to it of a
draft and certificates strictly complying with the
terms and conditions of the Letter of Credit other
than pursuant to the Uniform Commercial Code Section
5-114. In furtherance and not in limitation of the
foregoing, the Issuing Bank may accept documents that
appear on their face to be in order, without
responsibility for further investigation, regardless
of any notice or information to the contrary.
Section 11.15 Credit Agreement Governs. In the
event of any conflict between the terms of this
Agreement and any terms of any other Loan Document,
the terms of this Agreement shall control.
SECTION 11.16 GOVERNING LAW. THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF TEXAS; PROVIDED, HOWEVER, THAT PURSUANT
TO ARTICLE 5069-15.10(b), TITLE 79, REVISED CIVIL STATUTES OF
TEXAS, 1925, AS AMENDED, IT IS AGREED THAT THE PROVISIONS OF
CHAPTER 15, TITLE 79, REVISED CIVIL STATUTES OF TEXAS, 1925, AS
AMENDED, SHALL NOT APPLY TO THE ADVANCES, THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS. WITHOUT EXCLUDING ANY OTHER
JURISDICTION, THE BORROWER AGREES THAT THE STATE AND FEDERAL
COURTS OF TEXAS LOCATED IN DALLAS, TEXAS SHALL HAVE
JURISDICTION OVER PROCEEDINGS IN CONNECTION WITH THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS.
SECTION 11.17 WAIVER OF JURY TRIAL. EACH OF THE
BORROWER, THE ADMINISTRATIVE LENDER AND THE LENDERS
HEREBY KNOWINGLY VOLUNTARILY, IRREVOCABLY AND INTENTIONALLY
WAIVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM ARISING OUT OF
OR RELATED TO ANY OF THE LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREBY. THIS PROVISION IS A MATERIAL
INDUCEMENT TO EACH LENDER ENTERING INTO THIS AGREEMENT AND
MAKING ANY ADVANCES HEREUNDER.
SECTION 11.18 ENTIRE AGREEMENT. THIS WRITTEN AGREEMENT,
TOGETHER WITH THE OTHER LOAN DOCUMENTS, REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, this Amended and
Restated Credit Agreement is executed as of the date first set
forth above.
BORROWER: CLEAR CHANNEL
COMMUNICATIONS, INC.
By
title:
ADMINISTRATIVE LENDER: NATIONSBANK OF TEXAS,
N.A.,
as Administrative Lender
By
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice
President