EXHIBIT 10.2
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CREDIT AGREEMENT
Dated as of June 24, 1999
among
▇▇▇▇▇▇ COMPANIES INC.,
as Company
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent,
CREDIT SUISSE FIRST BOSTON,
as Syndication Agent
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO,
Arranged By
BANC OF AMERICA SECURITIES LLC
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TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS.................. 1
1.01 Certain Defined Terms............................... 1
1.02 Other Interpretive Provisions....................... 21
1.03 Accounting Principles............................... 22
ARTICLE II
THE CREDITS................... 22
2.01 Amounts and Terms of Commitments.................... 22
(a) The Term Credit..................... 22
(b) The Revolving Credit................ 22
2.02 Loan Accounts....................................... 22
2.03 Procedure for Borrowing............................. 23
2.04 Conversion and Continuation Elections............... 23
2.05 Voluntary Termination or Reduction of Revolving
Commitments........................................ 25
2.06 Optional Prepayments................................ 25
2.07 Mandatory Prepayments of Term Loans................. 25
(a) Asset Dispositions.............................. 25
(b) Excess Cash..................................... 26
(c) Debt Issuance................................... 26
(d) Equity Issuance................................. 26
(e) General......................................... 27
2.08 Repayment........................................... 27
(a) The Term Credit................................. 27
(b) The Revolving Credit............................ 27
2.09 Interest............................................ 28
2.10 Fees................................................ 28
(a) Arrangement and Agency Fees..................... 28
(b) Revolving Commitment Fees....................... 28
(c) Term Loan Commitment Fee........................ 29
2.11 Computation of Fees and Interest.................... 29
2.12 Payments by the Company............................. 30
2.13 Payments by the Lenders to the Agent................ 30
2.14 Sharing of Payments, Etc............................ 31
2.15 Security and Guaranties............................. 31
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY...... 32
3.01 Taxes............................................... 32
3.02 Illegality.......................................... 33
3.03 Increased Costs and Reduction of Return............. 33
3.04 Funding Losses...................................... 34
3.05 Inability to Determine Rates........................ 34
3.06 Reserves on Offshore Rate Loans..................... 35
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Section Page
3.07 Certificates of Lenders............................. 35
3.08 Substitution of Lenders............................. 35
3.09 Survival............................................ 35
ARTICLE IV
CONDITIONS PRECEDENT............... 35
4.01 Conditions of Initial Loans......................... 35
(a) Credit Agreement and Notes...................... 35
(b) Resolutions; Incumbency......................... 35
(c) Organization Documents; Good Standing........... 36
(d) Legal Opinion................................... 36
(e) Payment of Fees................................. 36
(f) Ownership of Collateral......................... 36
(g) Collateral Documents............................ 36
(h) Guaranties...................................... 37
(i) Insurance Policies.............................. 37
(j) Certificate..................................... 37
(k) Retlaw Transactions............................. 37
(l) Other Documents................................. 38
4.02 Conditions to All Borrowings........................ 38
(a) Notice of Borrowing or Conversion/Continuation.. 38
(b) Continuation of Representations and Warranties.. 38
(c) Representations and Warranties for
New Subsidiaries.............................. 38
(d) No Existing Default............................. 38
(e) No Future Advance Notice........................ 38
(f) Guaranties...................................... 38
(g) Corporate Documents for New Guarantors.......... 38
ARTICLE V
REPRESENTATIONS AND WARRANTIES.......... 39
5.01 Company Existence and Power......................... 39
5.02 Company Authorization; No Contravention............. 39
5.03 Company Governmental Authorization.................. 40
5.04 Company Binding Effect.............................. 40
5.05 Guarantor Existence and Power....................... 40
5.06 Guarantor Authorization; No Contravention........... 40
5.07 Guarantor Governmental Authorization................ 41
5.08 Guarantor Binding Effect............................ 41
5.09 Litigation.......................................... 41
5.10 No Default.......................................... 41
5.11 ERISA Compliance.................................... 41
5.12 Use of Proceeds; Margin Regulations................. 42
5.13 Title to Properties................................. 42
5.14 Taxes............................................... 42
5.15 Financial Condition................................. 42
5.16 Environmental Matters............................... 43
5.17 Collateral Documents................................ 43
5.18 Regulated Entities.................................. 43
5.19 No Burdensome Restrictions.......................... 44
5.20 Copyrights, Patents, Trademarks and Licenses, etc... 44
5.21 Subsidiaries........................................ 44
5.22 Insurance........................................... 44
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Section Page
5.23 Solvency............................................ 44
5.24 Intercompany Loans.................................. 44
5.25 Swap Obligations.................................... 44
5.26 Year 2000 Compliance................................ 45
5.27 Retlaw Transaction.................................. 45
5.28 Full Disclosure..................................... 45
ARTICLE VI
AFFIRMATIVE COVENANTS............... 46
6.01 Financial Statements................................ 46
6.02 Certificates; Other Information..................... 46
6.03 Notices............................................. 47
6.04 Preservation of Corporate Existence, Etc............ 48
6.05 Maintenance of Property............................. 49
6.06 Insurance........................................... 49
6.07 Payment of Obligations.............................. 49
6.08 Guaranties.......................................... 49
6.09 Compliance with Laws................................ 49
6.10 Compliance with ERISA............................... 49
6.11 Inspection of Property and Books and Records........ 49
6.12 Environmental Laws.................................. 50
6.13 Use of Proceeds..................................... 50
6.14 Further Assurances.................................. 50
6.15 Financial Covenants................................. 50
(a) Adjusted Leverage Ratio......................... 51
(b) Interest Coverage Ratio......................... 51
(c) Fixed Charge Coverage Ratio..................... 52
6.16 Swap Contracts...................................... 52
ARTICLE VII
NEGATIVE COVENANTS................ 52
7.01 Limitation on Liens................................. 52
7.02 Disposition of Assets............................... 54
7.03 Consolidations and Mergers.......................... 56
7.04 Loans and Investments............................... 56
7.05 Limitation on Indebtedness.......................... 58
7.06 Transactions with Affiliates........................ 59
7.07 Use of Proceeds..................................... 59
7.08 Contingent Obligations.............................. 59
7.09 Joint Ventures...................................... 60
7.10 Lease Obligations................................... 60
7.11 Restricted Payments................................. 60
(a) ▇▇▇▇▇▇ Broadcasting............................. 60
(b) Company and Restricted Subsidiaries............. 61
7.12 Capital Expenditures................................ 61
7.13 ERISA............................................... 62
7.14 Change in Business.................................. 62
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Section Page
7.15 Accounting Changes.................................. 62
ARTICLE VIII
EVENTS OF DEFAULT................. 62
8.01 Event of Default.................................... 62
(a) Non-Payment..................................... 62
(b) Representation or Warranty...................... 62
(c) Specific Defaults............................... 62
(d) Other Defaults.................................. 63
(e) Cross-Default................................... 63
(f) Insolvency; Voluntary Proceedings............... 63
(g) Involuntary Proceedings......................... 63
(h) ERISA........................................... 64
(i) Monetary Judgments.............................. 64
(j) Non-Monetary Judgments.......................... 64
(k) Change of Control............................... 64
(l) Loss of Licenses................................ 64
(m) Adverse Change.................................. 64
(n) Guaranties...................................... 64
(o) Year 2000 Concerns.............................. 64
(p) Collateral...................................... 65
8.02 Remedies............................................ 65
8.03 Specified Swap Contract Remedies.................... 65
8.04 Rights Not Exclusive................................ 66
8.05 Certain Financial Covenant Defaults................. 66
ARTICLE IX
THE AGENT..................... 66
9.01 Appointment and Authorization; "Agent".............. 66
9.02 Delegation of Duties................................ 66
9.03 Liability of Agent.................................. 66
9.04 Reliance by Agent................................... 67
9.05 Notice of Default................................... 67
9.06 Credit Decision..................................... 67
9.07 Indemnification of Agent............................ 68
9.08 Agent in Individual Capacity........................ 68
9.09 Successor Agent..................................... 68
9.10 Withholding Tax..................................... 69
9.11 Collateral Matters.................................. 70
9.12 Syndication Agent; Lead Arranger.................... 71
ARTICLE X
MISCELLANEOUS................... 71
10.01 Amendments and Waivers............................. 71
10.02 Notices............................................ 72
10.03 No Waiver; Cumulative Remedies..................... 72
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Section Page
10.04 Costs and Expenses................................. 72
10.05 Company Indemnification............................ 73
10.06 Marshalling; Payments Set Aside.................... 73
10.07 Successors and Assigns............................. 74
10.08 Assignments, Participations, etc................... 74
10.09 Confidentiality.................................... 76
10.10 Set-off............................................ 77
10.11 Automatic Debits of Fees........................... 77
10.12 Notification of Addresses, Lending Offices, Etc.... 77
10.13 Counterparts....................................... 78
10.14 Severability....................................... 78
10.15 No Third Parties Benefited......................... 78
10.16 Governing Law and Jurisdiction..................... 78
10.17 Waiver of Jury Trial............................... 78
10.18 Entire Agreement................................... 79
10.19 Oral Agreements Not Enforceable.................... 79
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SCHEDULES
Schedule 1.01 Property Descriptions
Schedule 2.01 Commitments
Schedule 5.03 Governmental Authorizations
Schedule 5.09 Litigation
Schedule 5.11 ERISA
Schedule 5.15 Permitted Liabilities
Schedule 5.16 Environmental Matters
Schedule 5.21 Subsidiaries and Minority Interests
Schedule 5.22 Insurance Matters
Schedule 5.24 Intercompany Loans
Schedule 7.01 Permitted Liens
Schedule 7.05 Permitted Indebtedness
Schedule 7.08 Contingent Obligations
Schedule 7.10 Lease Obligations
Schedule 10.02 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Legal Opinion of Company's Counsel
Exhibit E Form of Assignment and Acceptance
Exhibit F Form of Term Note
Exhibit G Form of Revolving Note
Exhibit H Form of Guaranty
Exhibit I Form of Pledge and Security Agreement
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CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of June 24, 1999, among ▇▇▇▇▇▇
Companies Inc., a Washington corporation (the "Company"), the several financial
institutions from time to time party to this Agreement (collectively, the
"Lenders"; individually, a "Lender"), Bank of America National Trust and Savings
Association, as administrative agent for the Lenders, and Credit Suisse First
Boston, as syndication agent.
WHEREAS, the Lenders have agreed to make available to the Company a secured
term loan and a secured reducing revolving credit facility upon the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms. The following terms have the following
meanings:
"Acquisition" means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the
acquisition of all or substantially all of the assets of a Person, or of
any business or division of a Person, (b) the acquisition of in excess of
fifty percent (50%) of the capital stock, partnership interests, membership
interests or equity of any Person, or otherwise causing any Person to
become a Subsidiary, or (c) a merger or consolidation or any other
combination with another Person (other than a Person that is a Subsidiary)
provided that the Company or the Subsidiary is the surviving entity.
"Adjusted Cash Flow" means, for any period, Adjusted Operating Cash
Flow for such period minus dividend payments made on account of any shares
of any class of capital stock of the Company during such period.
"Adjusted Leverage Ratio" means, for any period, the ratio of (a)
Funded Debt of the Company and its Subsidiaries on a consolidated basis as
of the end of such period to (b) Adjusted Operating Cash Flow for such
period.
"Adjusted Operating Cash Flow" means, for any period, Operating Cash
Flow for such period plus the lesser of (a) gains resulting from the sale
or condemnation of real property and related improvements owned by ▇▇▇▇▇▇
Properties Inc. during such period or (b) Five Million Dollars
($5,000,000).
"Affiliate" means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common
control with, such Person. A Person shall be deemed to control another
Person if the controlling Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of
the other Person, whether through the ownership of voting securities,
membership
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interests, by contract, or otherwise.
"Agent" means BofA in its capacity as agent for the Lenders hereunder,
and any successor agent arising under Section 9.09.
"Agent-Related Persons" means BofA and any successor agent arising
under Section 9.09, together with their respective Affiliates (including,
in the case of BofA, the Lead Arranger and Sole Book Manager), and the
officers, directors, employees, agents and attorneys-in-fact of such
Persons and Affiliates.
"Agent's Payment Office" means the address for payments set forth on
Schedule 10.02 or such other address as the Agent may from time to time
specify in writing to the Company.
"Aggregate Specified Swap Amount" means, at any time, the sum of all
Specified Swap Amounts owing to all Swap Providers.
"Agreement" means this Credit Agreement.
"Applicable Margin" means on any date, a per annum interest rate
determined in accordance with the following table:
Applicable Applicable
Company's Margin For Margin For
Leverage Rating Offshore Rate Base Rate
--------------- ------------- ----------
▇▇▇▇▇ ▇ 1.00% 0.00%
▇▇▇▇▇ ▇ 1.25% 0.00%
▇▇▇▇▇ ▇ 1.50% 0.25%
▇▇▇▇▇ ▇ 1.75% 0.50%
▇▇▇▇▇ ▇ 2.00% 0.75%
▇▇▇▇▇ ▇ 2.25% 1.00%
"Assignee" has the meaning specified in subsection 10.08(a).
"Attorney Costs" means and includes all fees and disbursements of any
law firm or other external counsel, the allocated cost of internal legal
services and all disbursements of internal counsel.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. (S)101, et seq.).
"Base Rate" means, for any day, the higher of: (a) one half of one
percent (0.50%) per annum above the latest Federal Funds Rate; and (b) the
rate of interest in effect for such day as publicly announced from time to
time by BofA in San Francisco, California, as its "reference rate." (The
"reference rate" is a rate set by BofA based upon various factors including
BofA's costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may
be priced at, above, or below such announced rate.) Any change in the
reference rate announced by BofA shall take effect at the opening of
business on the day specified in
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the public announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"BofA" means Bank of America National Trust and Savings Association, a
national banking association.
"Borrowing" means a borrowing hereunder consisting of Loans of the
same Type made to the Company on the same day by the Lenders under Article
II, and, other than in the case of Base Rate Loans, having the same
Interest Period.
"Borrowing Date" means any date on which a Borrowing occurs under
Section 2.03.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks in New York, New York or Seattle, Washington
are authorized or required by law to close and, if the applicable Business
Day relates to any Offshore Rate Loan, means such a day on which dealings
are carried on in the applicable offshore dollar interbank market.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any other
law, rule or regulation, whether or not having the force of law, in each
case, regarding capital adequacy of any bank or of any corporation
controlling a bank.
"Capital Expenditures" means all expenditures for assets, plus all
expenses incurred by the Company and its Subsidiaries, that shall have
been, or in accordance with GAAP, should be recorded as a capitalized
asset.
"CERCLA" has the meaning specified in the definition of "Environmental
Laws."
"Change of Control" means that any "person" or "group" (as such terms
are used in Sections 13(d) and 14(d) of the Exchange Act), other than the
Current Stockholders, is or becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such Person
has the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of forty-five
percent (45%) or more of the then outstanding capital stock of the Company
with voting rights. As used in this definition, "Current Stockholders"
means all Persons that, as of the date of this Agreement, are "beneficial
owners", directly or indirectly, of the outstanding capital stock of the
Company with voting rights.
"Closing Date" means the date on which all conditions precedent set
forth in Section 4.01 are satisfied or waived by all Lenders (or, in the
case of subsection 4.01(e), waived by the Person entitled to receive such
payment).
"Code" means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
"Collateral" means collectively (a) all of the common stock of ▇▇▇▇▇▇
Broadcasting
3
Inc., (b) all of the preferred stock of ▇▇▇▇▇▇ Broadcasting Inc. owned by
the Company and (c) the other collateral described in the Pledge Agreement.
"Collateral Documents" means the Pledge Agreement, all financing
statements (or comparable documents now or hereafter filed in accordance
with the Uniform Commercial Code or comparable law) against the Company as
debtor in favor of the Lenders or the Agent for the benefit of the Lenders
as secured party, all certificates and instruments representing the
Collateral, all stock transfer powers executed in blank and all control or
comparable agreements relating to such securities and any amendments,
supplements, modifications, renewals, replacements, consolidations,
substitutions and extensions of any of the foregoing.
"Commitment" means, as to any Lender, such Lender's Term Commitment
and Revolving Commitment.
"Commitment Fees" has the meaning specified in Section 2.10(b).
"Comparable Amount" means, when used in connection with any specified
dollar amount, as of any date of determination, the dollar figure that
bears the same proportion to the Adjusted Net Worth as of such date as such
specified dollar amount bears to One Hundred Eighty-one Million Three
Hundred Twelve Thousand ($181,312,000). As used in this definition,
"Adjusted Net Worth" means the excess of the consolidated total assets over
total liabilities of the Company and its Subsidiaries, less the unrealized
gain, if any, on the marketable securities, if any, owned by the Company
and its Subsidiaries.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit C.
"Contingent Obligation" means, as to any Person, any direct or
indirect liability of that Person, whether or not contingent, with or
without recourse, (a) with respect to any Indebtedness, lease, dividend,
letter of credit or other obligation (the "primary obligations") of another
Person (the "primary obligor"), including any obligation of that Person (i)
to purchase, repurchase or otherwise acquire such primary obligations or
any security therefor, (ii) to advance or provide funds for the payment or
discharge of any such primary obligation, or to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net
worth or solvency or any balance sheet item, level of income or financial
condition of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of
such primary obligation, or (iv) otherwise to assure or hold harmless the
holder of any such primary obligation against loss in respect thereof
(each, a "Guaranty Obligation"); (b) with respect to any Surety Instrument
issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments; (c) to purchase
any materials, supplies or other property from, or to obtain the services
of, another Person if the relevant contract or other related document or
obligation requires that payment for such materials, supplies or other
property, or for such services, shall be made regardless of whether
delivery of such materials, supplies or other property is ever made or
tendered, or such services are ever performed or tendered, or (d) in
respect of any Swap Contract. The amount of any Contingent Obligation
shall, in the case of Guaranty Obligations, be deemed equal to the stated
or determinable amount of the primary
4
obligation in respect of which such Guaranty Obligation is made or, if not
stated or if indeterminable, the maximum reasonably anticipated liability
in respect thereof, and in the case of other Contingent Obligations other
than in respect of Swap Contracts, shall be equal to the maximum reasonably
anticipated liability in respect thereof and, in the case of Contingent
Obligations in respect of Swap Contracts, shall be equal to the Swap
Termination Value.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or
agreement to which such Person is a party or by which it or any of its
property is bound.
"Conversion/Continuation Date" means any date on which, under Section
2.04, the Company (a) converts Loans of one Type to another Type, or (b)
continues Loans having Interest Periods expiring on such date as Loans of
the same Type but with a new Interest Period.
"Default" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise
remedied during such time) constitute an Event of Default.
"Demand Loans" means unsecured revolving demand loans payable by the
Company to its officers and shareholders.
"Disposition" means (i) the sale, lease, conveyance or other
disposition of property, other than sales or other dispositions expressly
permitted under subsection 7.02(a), and (ii) the sale or transfer by the
Company or any Subsidiary of the Company of any equity securities issued by
any Subsidiary of the Company.
"Dollars", "dollars" and "$" each mean lawful money of the United
States.
"EBITDA" means, for any period, the net income (or net loss), plus the
sum of (i) interest expense (including capitalized interest and the
interest component of rentals paid or accrued under capital leases), (ii)
income tax expense, (iii) depreciation expense, (iv) amortization expense
(including, without limitation, film amortization), (v) non-cash
extraordinary, unusual or nonrecurring losses, (vi) losses resulting from
the sale of capital assets and (vii) barter expenses, minus the sum of (i)
non-cash extraordinary, unusual or nonrecurring gains, (ii) gains resulting
from the sale or condemnation of capital assets and (iii) barter revenues,
in each case determined on a consolidated basis in accordance with GAAP for
such period.
"Eligible Assignee" means (a) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined
capital and surplus of at least One Hundred Million Dollars ($100,000,000);
(b) a commercial bank organized under the laws of any other country which
is a member of the Organization for Economic Cooperation and Development
(the "OECD"), or a political subdivision of any such country, and having a
combined capital and surplus of at least One Hundred Million Dollars
($100,000,000), provided that such bank is acting through a branch or
agency located in the United States; (c) a Person that is primarily engaged
in the business of commercial banking and that is (i) a Subsidiary of a
Lender, (ii) a Subsidiary of a Person of
5
which a Lender is a Subsidiary, or (iii) a Person of which a Lender is a
Subsidiary; and (d) any other entity which is an "accredited investor" (as
defined in Regulation D under the Securities Act) which extends credit or
buys loans as one of its businesses, including insurance companies, mutual
funds and lease financing companies provided that the Company, the
Subsidiaries and the Affiliates of the Company are not "Eligible
Assignees".
"Eligible Investments" means (a) marketable direct obligations issued
or unconditionally guaranteed by the United States government or issued by
any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one year from the date of acquisition
thereof; (b) commercial paper maturing no more than one year from the date
issued and, at the time of acquisition, having a rate of at least A-1 from
Standard & Poor's Corporation or at least P-1 from ▇▇▇▇▇'▇ Investors
Service, Inc.; and (c) certificates of deposit or bankers' acceptances
maturing within one year from the date of issuance thereof issued by, or
overnight reverse repurchase agreements from any commercial bank organized
under the laws of the United States of America or any state thereof or the
District of Columbia having combined capital and surplus of not less than
$100,000,000; (d) time deposits maturing no more than thirty (30) days from
the date of creation thereof and demand deposits with commercial banks
having membership in the Federal Deposit Insurance Corporation in amounts
not exceeding the lesser of $100,000 or the maximum amount of insurance
applicable to the aggregate amount of the Company's deposits at such
institution; and (e) deposits or investments in mutual or similar funds
offered or sponsored by brokerage or other companies having membership in
the Securities Investor Protector Corporation investing only in obligations
described in clauses (a) through (d) above.
"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or
injury to the environment or threat to public health, personal injury
(including sickness, disease or death), property damage, natural resources
damage, or otherwise alleging liability or responsibility for damages
(punitive or otherwise), cleanup, removal, remedial or response costs,
restitution, civil or criminal penalties, injunctive relief, or other type
of relief, resulting from or based upon the presence, placement, discharge,
emission or release (including intentional and unintentional, negligent and
non-negligent, sudden or non-sudden, accidental or non-accidental,
placement, spills, leaks, discharges, emissions or releases) of any
Hazardous Material at, in, or from property, whether or not owned by the
Company or its Subsidiaries.
"Environmental Laws" means all federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes, together with
all administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental
Authorities, in each case relating to environmental, health, safety and
land use matters; including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), the Clean Air Act, the
Federal Water Pollution Control Act of 1972, the Solid Waste Disposal Act,
the Federal Resource Conservation and Recovery Act, the Toxic Substances
Control Act, the Emergency Planning and Community Right-to-Know Act, the
Washington Model Toxics Control Act and the Washington Underground
Petroleum Storage Tanks Act.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
6
regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Company within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code
for purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Company or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations which is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the Company or
any ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of
intent to terminate, the treatment of a Plan amendment as a termination
under Section 4041 or 4041A of ERISA, or the commencement of proceedings by
the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or
condition which 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 Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the
Company or any ERISA Affiliate.
"Eurodollar Reserve Percentage" has the meaning specified in the
definition of "Offshore Rate".
"Event of Default" means any of the events or circumstances specified
in Section 8.01.
"Event of Loss" means, with respect to any property, any of the
following: (a) any loss, destruction or damage of such property; (b) any
pending or threatened institution of any proceedings for the condemnation
or seizure of such property or for the exercise of any right of eminent
domain in respect of such property; or (c) any actual condemnation, seizure
or taking, by exercise of the power of eminent domain or otherwise, of such
property, or confiscation of such property or the requisition of the use of
such property.
"Excess Cash" means, for any period, EBITDA, minus the sum of (i) Film
Payments made by the Company or any of its Subsidiaries during such period,
(ii) all scheduled payments of principal in respect of the Term Loans
required to be made by the Company during such period pursuant to
subsection 2.08(a), (iii) all payments of principal in respect of the
Revolving Loans required to be made by the Company during such period
pursuant to the first sentence of subsection 2.08(b), (iv) all scheduled
payments of principal in respect of Indebtedness (other than the Loans)
required to be made by the Company and its Subsidiaries during such period,
(v) all voluntary prepayments of principal in respect of Indebtedness
during such period to the extent such prepayments result in a permanent
reduction of such Indebtedness, (vi) interest expense (including
capitalized interest and the interest component of rentals paid or accrued
under capital leases) of the Company and its Subsidiaries for such period,
(vii) income tax expense for such period, (viii) Capital Expenditures that
are made by the Company or any Subsidiary during such period and are
permitted under Section 7.12, (ix) dividend payments and
7
other distributions of cash permitted by Section 7.11, (x) payments of
principal in respect of the Revolving Loans made in connection with a
termination or reduction of the Revolving Commitments pursuant to Section
2.05 and (xi) non-cash extraordinary, unusual or nonrecurring gains, plus
non-cash extraordinary, unusual or nonrecurring losses.
"Exchange Act" means the Securities Exchange Act of 1934, and
regulations promulgated thereunder.
"FCC" means the Federal Communications Commission, and any
Governmental Authority succeeding to any of its principal functions.
"FDIC" means the Federal Deposit Insurance Corporation, and any
Governmental Authority succeeding to any of its principal functions.
"Federal Funds Rate" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including
any such successor, "H.15(519)") on the preceding Business Day opposite the
caption "Federal Funds (Effective)"; or, if for any relevant day such rate
is not so published on any such preceding Business Day, the rate for such
day will be the arithmetic mean as determined by the Agent of the rates for
the last transaction in overnight Federal funds arranged prior to 9:00 a.m.
(New York City time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the Agent.
"Fee Letter" has the meaning specified in subsection 2.10(a).
"Film Payments" means, for any period, payments made to obtain
broadcast programming.
"▇▇▇▇▇▇ Plaza" means the real property, improvements and equipment
located or to be located on the real property legally described on Schedule
1.01.
"▇▇▇▇▇▇ Plaza Refinancing Loan" means a loan satisfying the following
conditions: (a) the proceeds of such loan repay in full the existing loan
used to develop the ▇▇▇▇▇▇ Plaza, (b) such loan is secured solely by the
▇▇▇▇▇▇ Plaza, and (c) not more than ten percent (10%) of the principal
amount of such loan is required to be paid prior to the Maturity Date.
"Fixed Charge Coverage Ratio" has the meaning specified in subsection
6.15(c).
"FPI Indebtedness" means Indebtedness of ▇▇▇▇▇▇ Properties Inc. that
(a) is incurred by ▇▇▇▇▇▇ Properties Inc. in the ordinary course of its
Line of Business, (b) is not guaranteed by the Company or any other
Subsidiary, and (c) is not secured by any assets of the Company or any
other Subsidiary.
"FRB" means the Board of Governors of the Federal Reserve System, and
any Governmental Authority succeeding to any of its principal functions.
"Funded Debt" of any Person means, without duplication, an amount
equal to (a) all Indebtedness for borrowed money, (b) all obligations with
respect to capital leases
8
and (c) all Contingent Obligations of such Person minus Five Hundred
Thousand Dollars ($500,000).
"Further Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges (including, without limitation, net income taxes and franchise
taxes), and all liabilities with respect thereto, imposed by any
jurisdiction on account of amounts payable or paid pursuant to Section
3.01.
"GAAP" means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants
and statements and pronouncements of the Financial Accounting Standards
Board (or agencies with similar functions of comparable stature and
authority within the U.S. accounting profession), which are applicable to
the circumstances as of the date of determination.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary
or regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"Guaranty" means each guaranty agreement executed by a Guarantor
substantially in the form attached hereto as Exhibit H.
"Guarantors" mean ▇▇▇▇▇▇ Broadcasting Inc., a Washington corporation,
▇▇▇▇▇▇ ▇▇▇▇▇ Inc., a Washington corporation, ▇▇▇▇▇▇ Properties Inc., a
Washington corporation, and any other Material Subsidiary that is a Wholly-
Owned Subsidiary now or hereafter existing that has executed a Guaranty.
"Guaranty Obligation" has the meaning specified in the definition of
"Contingent Obligation."
"Hazardous Materials" means all those substances that are regulated
by, or which may form the basis of liability under, any Environmental Law,
including any substance identified under any Environmental Law as a
pollutant, contaminant, hazardous waste, hazardous constituent, special
waste, hazardous substance, hazardous material, or toxic substance, or
petroleum or petroleum derived substance or waste.
"Income Tax Rate" means, for any period, the positive percentage
equivalent (expressed as a decimal, rounded upward to the next 1/100th of
1%) of the Company's income tax expense divided by the sum of (i) the
Company's net income (or net loss) plus (ii) income tax expense, in each
case determined on a consolidated basis in accordance with GAAP for such
period.
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than
trade payables entered into in the ordinary course of business on ordinary
terms); (c) all non-contingent reimbursement or payment obligations with
respect to Surety Instruments; (d) all obligations evidenced by
9
notes, bonds, debentures or similar instruments, including obligations so
evidenced incurred in connection with the acquisition of property, assets
or businesses; (e) all indebtedness created or arising under any
conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to property acquired by the Person
(even though the rights and remedies of the seller or bank under such
agreement in the event of default are limited to repossession or sale of
such property); (f) all obligations with respect to capital leases; (g) all
indebtedness referred to in clauses (a) through (f) above secured by (or
for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien upon or in property (including
accounts and contracts rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such
Indebtedness; and (h) all Guaranty Obligations in respect of indebtedness
or obligations of others of the kinds referred to in clauses (a) through
(g) above. For all purposes of this Agreement, the Indebtedness of any
Person shall include all recourse Indebtedness of any partnership or joint
venture in which such Person is a general partner or a joint venturer.
"Indemnified Liabilities" has the meaning specified in Section 10.05.
"Indemnified Person" has the meaning specified in Section 10.05.
"Independent Auditor" has the meaning specified in subsection 6.01(a).
"Ineligible Securities" means securities which may not be underwritten
or dealt in by member banks of the Federal Reserve System under Section 16
of the Banking Act of 1933 (12 U.S.C. (S) 24, Seventh), as amended.
"Insolvency Proceeding" means, with respect to any Person, (a) any
case, action or proceeding with respect to such Person before any court or
other Governmental Authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief of
debtors, or (b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial
portion of its creditors; undertaken under U.S. Federal, state or foreign
law, including the Bankruptcy Code.
"Interest Coverage Ratio" has the meaning specified in subsection
6.15(b).
"Interest Payment Date" means, as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and, as
to any Base Rate Loan, the last Business Day of each calendar quarter and
each date such Loan is converted into another Type of Loan.
"Interest Period" means, as to any Offshore Rate Loan, the period
commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted into or
continued as an Offshore Rate Loan, and, (x) in the case of a Term Loan,
ending on the date three months thereafter, and (y) in the case of a
Revolving Loan ending on the date one, two or three months thereafter as
selected by the Company in its Notice of Borrowing or Notice of
Conversion/Continuation;
provided that:
10
(i) if any Interest Period would otherwise end on a day that is
not a Business Day, that Interest Period shall be extended to the
following Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period;
(iii) no Interest Period for any Loan shall extend beyond the
Maturity Date;
(iv) no Interest Period applicable to a Term Loan or portion
thereof shall extend beyond any date upon which is due any scheduled
principal payment in respect of the Term Loans unless the aggregate
principal amount of Term Loans represented by Base Rate Loans or
Offshore Rate Loans having Interest Periods that will expire on or
before such date, equals or exceeds the amount of such principal
payment;
(v) no Interest Period applicable to a Revolving Loan or portion
thereof shall extend beyond any date upon which the Revolving
Commitments are to be reduced as set forth on Schedule 2.01 unless the
aggregate principal amount of Revolving Loans represented by Base Rate
Loans or Offshore Rate Loans having Interest Periods that will expire
on or before the date of such reduction, equals or exceeds the
aggregate amount by which the Revolving Commitments are to be reduced
on such date; and
(vi) the initial Interest Period for the Term Loans which are
Offshore Rate Loans on the Closing Date shall commence on the Closing
Date and continue to September 30, 1999.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
"Joint Venture" means a single-purpose corporation, partnership,
limited liability company, joint venture or other legal arrangement
(whether created by contract or conducted through a separate legal entity)
now or hereafter formed by the Company or any of its Subsidiaries with
another Person in order to conduct a common venture or enterprise with such
Person.
"Lead Arranger and Sole Book Manager" means Banc of America
Securities LLC, a Delaware limited liability company that is a registered
broker-dealer and permitted to underwrite and deal in certain Ineligible
Securities.
"Lender" means the institutions specified in the introductory clause
hereto. Unless the context otherwise clearly requires, "Lender" includes
any such institution in its capacity as Swap Provider. Unless the context
otherwise clearly requires, references to any such institution as a
"Lender" shall also include any of such institution's Affiliates that may
at any
11
time of determination be Swap Providers.
"Lending Office" means, as to any Lender, the office or offices of
such Lender specified as its "Lending Office" or "Domestic Lending Office"
or "Offshore Lending Office", as the case may be, on Schedule 10.02, or
such other office or offices as the Lender may from time to time specify in
writing to the Company and the Agent.
"Leverage Ratio" means, for any period, the ratio of (a) Funded Debt
of the Company and its Subsidiaries on a consolidated basis as of the end
of such period to (b) Operating Cash Flow for such period.
"Leverage Rating" means a rating determined in accordance with the
following table:
Leverage Ratio Leverage Rating
-------------- ---------------
equal to or less than 3.5 to 1.0 Level 1
greater than 3.5 to 1.0, Level 2
but equal to or less than 4.0 to 1.0
greater than 4.0 to 1.0, Level 3
but equal to or less than 4.5 to 1.0
greater than 4.5 to 1.0, Level 4
but equal to or less than 5.0 to 1.0
greater than 5.0 to 1.0, Level 5
but equal to or less than 5.5 to 1.0
greater than 5.5 to 1.0 ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇▇▇▇ Rating shall be determined in accordance with the following
procedures on the basis of the Leverage Ratio as of the end of the
Company's most recently completed fiscal quarter (the "Prior Quarter"), and
shall be effective as of the first day of the month following the Agent's
receipt of the financial reports in respect of each such Prior Quarter
pursuant to Section 6.01. All resulting adjustments in the Applicable
Margins and the Commitment Fees shall likewise be effective as of the first
day of the month following the Agent's receipt of such financial reports.
If the Company shall fail to provide the financial reports due in respect
of the Prior Quarter for a period of five (5) days after the date required
pursuant to Section 6.01, from and after the date on which such financial
statements are due and until the first day of the month following Agent's
receipt of such financial statements, any payments of fees or interest due
hereunder shall be calculated and paid as if the Leverage Rating was one
level higher than the Leverage Rating applicable as of the date such
financial statements were due pursuant to Section 6.01. Notwithstanding the
foregoing to the contrary, the Leverage Rating shall not be less than
"Level 5" for the period commencing on the Closing Date and ending on the
first day of the month following the Agent's receipt of the financial
reports in respect of the Company's fiscal quarter ended December 31, 1999.
"Lien" means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance, lien
(statutory or other) or preferential arrangement of any kind or nature
whatsoever in respect of any property (including those created by, arising
under or evidenced by any
12
conditional sale or other title retention agreement, the interest of a
lessor under a capital lease, any financing lease having substantially the
same economic effect as any of the foregoing, or the filing of any
financing statement naming the owner of the asset to which such lien
relates as debtor, under the Uniform Commercial Code or any comparable law)
and any contingent or other agreement to provide any of the foregoing, but
not including the interest of a lessor under an operating lease.
"Line of Business" means: (a) for the Company, the business of owning
entities engaged in the lines of business described in clauses (b) through
(d) and (f) below; (b) for ▇▇▇▇▇▇ Broadcasting Inc., the business of
television, radio, cable, and internet broadcasting, the operation of
satellite teleports and tower sites, and related programming, acquisition,
production and syndication; (c) for ▇▇▇▇▇▇ ▇▇▇▇▇ Inc., the business of
flour milling and bakery products distribution; (d) for ▇▇▇▇▇▇ Properties
Inc., the business of real estate investment, sale, development, operation
and management; (e) for any entity that after the date of this Agreement
becomes a Subsidiary, one (and only one) of the lines of business described
in clauses (b) through (d) above; and as applicable (f) the exploitation of
technologies, products, properties and services that facilitate or
otherwise enhance, or may reasonably be expected to facilitate or otherwise
enhance, the lines of business described in clauses (b) through (d) above.
"Loan" means an extension of credit by a Lender to the Company under
Article II, and may be a Base Rate Loan or an Offshore Rate Loan (each, a
"Type" of Loan), and includes any Revolving Loan or Term Loan.
"Loan Documents" means this Agreement, any Notes, the Collateral
Documents, the Fee Letter, any documents evidencing or relating to
Specified Swap Contracts, the Guaranties and all other documents delivered
to the Agent or any Lender in connection with the transactions contemplated
by this Agreement.
"Majority Lenders" means at any time Lenders then holding in excess of
fifty percent (50%) of the then aggregate unpaid principal amount of the
Loans, or, if no such principal amount is then outstanding, Lenders then
having in excess of fifty percent (50%) of the Commitments, or, if the
Commitments have been terminated and no Loans are then outstanding, Lenders
then owed a Specified Swap Amount in excess of fifty percent (50%) of the
Aggregate Specified Swap Amount.
"Margin Stock" means "margin stock" as such term is defined in
Regulation G, T, U or X of the FRB.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties,
condition (financial or otherwise) of the Company, any Material Subsidiary,
or the Company and its Subsidiaries taken as a whole; (b) a material
impairment of the ability of the Company or any Guarantor to perform under
any Loan Document and to avoid any Event of Default; or (c) a material
adverse effect upon (i) the legality, validity, binding effect or
enforceability against the Company or any Guarantor of any Loan Document,
or (ii) the perfection or priority of any Lien granted under any of the
Collateral Documents.
"Material Subsidiary" means, at any time, (a) ▇▇▇▇▇▇ Properties Inc.,
▇▇▇▇▇▇ Broadcasting Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇ Inc., and (b) any other
Subsidiary that (i) had, as of the
13
last day of the most recent fiscal quarter for which financial reports have
been prepared and provided to the Agent hereunder, Subsidiary Net Worth in
excess of Ten Million Dollars ($10,000,000) or (ii) was acquired or formed
since the last day of the most recent fiscal quarter for which financial
reports have been prepared and provided to the Agent and at the time of
formation or acquisition had Subsidiary Net Worth in excess of Ten Million
Dollars ($10,000,000). As used in this definition, "Subsidiary Net Worth"
means, with respect to any Subsidiary, the excess of the total consolidated
assets over total liabilities of such Subsidiary.
"Maturity Date" means June 30, 2007.
"Multiemployer Plan" means a "multiemployer plan", within the meaning
of Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate
makes, is making, or is obligated to make contributions or, during the
preceding three calendar years, has made, or been obligated to make,
contributions.
"Net Issuance Proceeds" means, as to any issuance of debt or equity by
any Person, cash proceeds received or receivable by such Person in
connection therewith, net of reasonable out-of-pocket costs and expenses
paid or incurred in connection therewith in favor of any Person not an
Affiliate of such Person, such costs and expenses not to exceed five
percent (5%) of the gross proceeds of such issuance.
"Net Proceeds" means, as to any Disposition by a Person, proceeds in
cash, checks or other cash equivalent financial instruments as and when
received by such Person, net of: (a) the direct costs relating to such
Disposition (excluding amounts payable to such Person or any Affiliate of
such Person), (b) income, sale, use or other transaction taxes actually
paid by such Person as a direct result thereof, and (c) amounts required to
be applied to repay principal, interest and prepayment premiums and
penalties on Indebtedness secured by a Permitted Lien on the asset which is
the subject of such Disposition. "Net Proceeds" shall also include proceeds
paid on account of any Event of Loss, net of (i) all money actually applied
to repair or reconstruct the damaged property or property affected by the
condemnation or taking, (ii) all of the costs and expenses reasonably
incurred in connection with the collection of such proceeds, award or other
payments, and (iii) any amounts retained by or paid to parties having
superior rights to such proceeds, awards or other payments.
"Note" means a promissory note executed by the Company in favor of a
Lender pursuant to subsection 2.02(b), in the case of Term Loans, in
substantially the form of Exhibit F, and in the case of Revolving Loans, in
substantially the form of Exhibit G.
"Notice of Borrowing" means a notice in substantially the form of
Exhibit A.
"Notice of Conversion/Continuation" means a notice in substantially
the form of Exhibit B.
"Obligations" means all advances, debts, liabilities, obligations,
covenants and duties arising under any Loan Document owing by the Company
to any Lender, the Agent, or any Indemnified Person, whether direct or
indirect (including those acquired by assignment), absolute or contingent,
due or to become due, now existing or hereafter arising.
14
"Offshore Rate" means, for any Interest Period, with respect to
Offshore Rate Loans comprising part of the same Borrowing, the rate of
interest per annum (rounded upward to the next 1/16th of 1%) determined by
the Agent as follows:
Offshore Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for any
Interest Period the maximum reserve percentage (expressed as a
decimal, rounded upward to the next 1/100th of 1%) in effect on such
day (whether or not applicable to any Lender) under regulations issued
from time to time by the FRB for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"); and
"LIBOR" means, for any Interest Period, the rate of interest per
annum determined by the Agent by reference to that rate (rounded
upward to the next 1/16th of 1%) which appears on the display
designated as "Page 3750" on the Telerate Service (or on such other
page on that service or such other service designated by the British
Banker's Association for the display of that Association's Interest
Settlement Rates for U.S. Dollar deposits) for a period approximately
equal to such Interest Period as of 11:00 o'clock a.m. (London time)
on the day that is two (2) Business Days prior to the first date of
the proposed Interest Period. If there are no applicable quotes
available through Telerate Service, the LIBOR Rate will be determined
by the Agent by reference to that rate (rounded upward to the next
1/16th of 1%) which appears on the Reuters Screen LIBO Page for a
period approximately equal to such Interest Period as of 11:00 a.m.
(London time) on the day that is two (2) Business Days prior to the
first date of the proposed Interest Period. If more than one such rate
appears on the Reuters Screen LIBO Page, the rate will be the
arithmetic mean (rounded upward to the next 1/16th of 1%) of such
rates. If there are no applicable quotes through Telerate Service or
available on the Reuters Screen LIBO Page, then the Offshore Rate
shall be deemed unavailable as provided in Section 3.05 hereof.
The Offshore Rate shall be adjusted automatically as to all Offshore
Rate Loans then outstanding as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Offshore Rate Loan" means a Loan that bears interest based on the
Offshore Rate.
"Operating Cash Flow" means, for any period, the EBITDA of the Company
and its Subsidiaries for such period minus Film Payments made by the
Company or any of its Subsidiaries during such period. For purposes of this
definition, EBITDA and Film Payments shall for any period of four
consecutive fiscal quarters ending September 30, 1999, December 31, 1999
and March 31, 2000, mean and include for that portion of such period that
precedes the Closing Date, the EBITDA derived from and the Film Payments
15
made by Retlaw and its Subsidiaries during such period in connection with
the operation of the assets acquired by the Company as part of the Retlaw
Transaction.
"Organization Documents" means, (a) for any corporation, the
certificate or articles of incorporation, the bylaws, any certificate of
determination or instrument relating to the rights of preferred
shareholders of such corporation, any shareholder rights agreement, and all
applicable resolutions of the board of directors (or any committee thereof)
of such corporation, and (b) for any other entity, comparable organization
and governance documents.
"Other Taxes" means any present or future stamp, court or documentary
taxes or any other excise or property taxes, charges or similar levies
which arise from any payment made hereunder or from the execution,
delivery, performance, enforcement or registration of, or otherwise with
respect to, this Agreement or any other Loan Documents.
"Participant" has the meaning specified in subsection 10.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions under
ERISA.
"Pension Plan" means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA which the Company sponsors, maintains,
or to which it makes, is making, or is obligated to make contributions, or
in the case of a multiple employer plan (as described in Section 4064(a) of
ERISA) has made contributions at any time during the immediately preceding
five (5) plan years.
"Permitted Acquisition" means an Acquisition that complies with all of
the following (to the extent applicable): (a) all required FCC approvals
in connection with such Acquisition have been finally obtained and are not
subject to appeal or further contest, and such Acquisition is otherwise in
compliance in all material respects with all applicable Requirements of
Law, (b) in the case of an Acquisition of equity securities or other equity
interests in a Person, (i) such Acquisition must be for 100% of the
outstanding equity interests of such Person and (ii) the board of directors
or other applicable governing body of such Person has adopted an effective
resolution approving such Acquisition, (c) if such Acquisition results in a
new Material Subsidiary that is a Wholly-Owned Subsidiary, such Subsidiary
shall have executed and delivered a Guaranty to the Agent (for the benefit
of the Agent and the Lenders), (d) no material environmental liabilities or
Contingent Obligations are assumed in connection with such Acquisition
unless they would not reasonably be expected to have a Material Adverse
Effect, (e) based on the financial statements and Compliance Certificate
for the most recent fiscal quarter for which financial statements are
available and have been delivered to the Agent hereunder, as adjusted on a
pro forma basis to fairly present the effect of such Acquisition, the
Company shall after giving effect to such Acquisition be in compliance with
the provisions of this Agreement, (f) receipt by the Agent of a certificate
of a Responsible Officer of the Company (i) stating that no Default exists
or would occur as a result of the Acquisition, (ii) demonstrating pro forma
financial covenant compliance based on the most recent fiscal quarter for
which financial statements are available and have been delivered to the
Agent hereunder, after giving effect to the Acquisition, and (iii)
certifying that the Acquisition is in compliance with all provisions of
this Agreement
16
and that all representations and warranties of the Loan Documents are true
and correct in all material respects after giving effect to such
Acquisition, (g) assets acquired are free and clear of any Liens except
Permitted Liens, and (h) such Acquisition is of a Person in or assets used
or that may reasonably be used in the Line of Business of the Company or
the Subsidiary making such Acquisition.
"Permitted Liens" has the meaning specified in Section 7.01.
"Permitted Swap Obligations" means all obligations (contingent or
otherwise) of the Company or any Subsidiary existing or arising under Swap
Contracts, provided that each of the following criteria is satisfied: (a)
such obligations are (or were) entered into by such Person in the ordinary
course of business for the purpose of directly mitigating risks associated
with liabilities, commitments or assets held by such Person, or changes in
the value of securities issued by such Person in conjunction with a
securities repurchase program not otherwise prohibited hereunder, and not
for purposes of speculation or taking a "market view;" and (b) such Swap
Contracts do not contain (i) any "walk away" provision exonerating the non-
defaulting party from its obligation to make payments on outstanding
transactions to the defaulting party, or (ii) any provision creating or
permitting the declaration of an event of default, termination event or
similar event upon the occurrence of an Event of Default hereunder (other
than an Event of Default under subsection 8.01(a).
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which the Company sponsors or maintains or to which the Company
makes, is making, or is obligated to make contributions and includes any
Pension Plan.
"Pledge Agreement" means a pledge and security agreement executed by
the Company in favor of the Agent, in substantially the form of Exhibit I.
"Pro Rata Share" means, as to any Lender at any time, (i) with respect
to Revolving Loans, the percentage equivalent (expressed as a decimal,
rounded to the ninth decimal place) at such time of such Lender's Revolving
Commitment divided by the combined Revolving Commitments of all Lenders;
and (ii) with respect to Term Loans, the percentage equivalent (expressed
as a decimal, rounded to the ninth decimal place) at such time of such
Lender's Term Commitment divided by the combined Term Commitments of all
Lenders.
"Reportable Event" means, any of the events set forth in Section
4043(c) of ERISA or the regulations thereunder, other than any such event
for which the 30-day notice requirement under ERISA has been waived in
regulations issued by the PBGC.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of
a Governmental Authority, in each case applicable to or binding upon the
Person or any of its property or to which the Person or any of its property
is subject.
17
"Restricted Subsidiary" means, (a) any Subsidiary where more than
sixty percent (60%) of the voting stock, membership interests or other
equity interests (in the case of Persons other than corporations), is owned
or controlled directly or indirectly by the Company, or one or more of the
Subsidiaries of the Company, or a combination thereof, and (b) any Material
Subsidiary.
"Responsible Officer" means the chief executive officer or the
president of the Company, or any other officer having substantially the
same authority and responsibility; or, with respect to financial statement
matters and compliance with financial covenants, the chief financial
officer or the treasurer of the Company, or any other officer having
substantially the same authority and responsibility.
"Retlaw" means Retlaw Enterprises, Inc., a California corporation.
"Retlaw Transaction" has the meaning specified in subsection 4.01(k).
"Retlaw Transaction Documents" has the meaning specified in subsection
4.01(k).
"Revolving Commitment", as to each Lender, has the meaning specified
in Section 2.01(b), and in the aggregate for all Lenders, means the
applicable amount determined based upon the following table:
Period Amount
------ ------
From the date hereof through and $50,000,000
including June 29, 2002
From June 30, 2002 through and $45,000,000
including June 29, 2003
From June 30, 2003 through and $40,000,000
including June 29, 2004
From June 30, 2004 through and $35,000,000
including June 29, 2005
From June 30, 2005 through and $30,000,000
including June 29, 2006
From June 30, 2006 through and $25,000,000
including June 29, 2007
"Revolving Loan" has the meaning specified in Section 2.01(b).
"Revolving Termination Date" means the earlier to occur of:
(a) the Maturity Date; and
(b) the date on which the Revolving Commitments terminate in
accordance with the provisions of this Agreement.
18
"Securities Act" means the Securities Act of 1933, and regulations
promulgated thereunder.
"Solvent" means, as to any Person at any time, (a) that the fair value
of the property of such Person is greater than the amount of such Person's
liabilities (including disputed, contingent and unliquidated liabilities)
as such value is established and liabilities evaluated for purposes of
Section 101(31) of the Bankruptcy Code; and (b) that (i) the present fair
saleable value of the property of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured; (ii) such Person is able to
realize upon its property and pay its debts and other liabilities
(including disputed, contingent and unliquidated liabilities) as they
mature in the normal course of business; (iii) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond
such Person's ability to pay as such debts and liabilities mature; and (iv)
such Person is not engaged in business or a transaction, and is not about
to engage in business or a transaction, for which such Person's property
would constitute unreasonably small capital.
"Specified Swap Amount" means, at any time, in respect of Specified
Swap Contracts to which any Swap Provider is party, the Swap Termination
Value relating thereto; provided that for purposes of this definition, any
Swap Termination Value that is negative as to (i.e., owing by) any Swap
Provider shall be deemed equal to zero (0).
"Specified Swap Contract" means any Swap Contract made or entered into
at any time, or in effect at any time (whether heretofore or hereafter),
whether directly or indirectly, and whether as a result of assignment or
transfer or otherwise, between the Company and any Swap Provider which Swap
Contract is or was intended by the Company to have been entered into, in
part or entirely, for purposes of mitigating interest rate or currency
exchange risk relating to any Term Loan (which intent shall conclusively be
deemed to exist if the Company so represents to the Swap Provider in
writing), and as to which the final scheduled payment by the Company is not
later than the Maturity Date.
"Subsidiary" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business
entity of which more than fifty percent (50%) of the voting stock,
membership interests or other equity interests (in the case of Persons
other than corporations), is owned or controlled directly or indirectly by
the Person, or one or more of the Subsidiaries of the Person, or a
combination thereof. Unless the context otherwise clearly requires,
references herein to a "Subsidiary" refer to a Subsidiary of the Company.
"Surety Instruments" means all letters of credit (including standby
and commercial), banker's acceptances, bank guaranties, shipside bonds,
surety bonds and similar instruments.
"Swap Contract" means any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap
or option, bond, note or ▇▇▇▇ option, interest rate option, forward foreign
exchange transaction, cap, collar or floor transaction, currency swap,
cross-currency rate swap, swaption, currency option or any
19
other, similar transaction (including any option to enter into any of the
foregoing) or any combination of the foregoing, and, unless the context
otherwise clearly requires, any master agreement relating to or governing
any or all of the foregoing.
"Swap Provider" means any Lender, or any Affiliate of any Lender, that
is at the time of determination party to a Swap Contract with the Company.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or
after the date such Swap Contracts have been closed out and termination
value(s) determined in accordance therewith, such termination value(s), and
(b) for any date prior to the date referenced in clause (a) the amount(s)
determined as the ▇▇▇▇-to-market value(s) for such Swap Contracts, as
determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Contracts (which
may include any Lender.)
"Tangible Net Worth" means the excess of the consolidated total assets
over total liabilities of the Company and its Subsidiaries, excluding,
however, from the determination of total assets (a) all assets which should
be classified as intangible assets (such as goodwill, patents, trademarks,
copyrights, franchises, unamortized debt discount, capitalized research and
development costs, capitalized software costs and organization costs) (b)
cash held in a sinking or other similar fund established for the purpose of
redemption or other retirement of capital stock, (c) to the extent not
already deducted from total assets, reserves for depreciation, depletion,
obsolescence or amortization of properties and other reserves or
appropriations of retained earnings which have been or should be
established in connection with the business conducted by the relevant
corporation, and (d) any revaluation or other write-up in book value of
assets subsequent to the fiscal year of the Company last ended at the date
of this Agreement.
"Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case
of each Lender and the Agent, respectively, the State of Washington
business and occupation tax and taxes imposed on or measured by its net
income by the jurisdiction (or any political subdivision thereof) under the
laws of which such Lender or the Agent, as the case may be, is organized or
maintains a lending office.
"Term Commitment" as to each Lender, has the meaning specified in
Section 2.01(a), and in the aggregate for all Lenders, means One Hundred
Eighty Million Dollars ($180,000,000).
"Term Loan" has the meaning specified in Section 2.01(a).
"Type" has the meaning specified in the definition of "Loan."
"UCC" means the Uniform Commercial Code as in effect in Washington.
"Unfunded Pension Liability" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of
that Plan's assets, determined in
20
accordance with the assumptions used for funding the Pension Plan pursuant
to Section 412 of the Code for the applicable plan year.
"United States" and "U.S." each means the United States of America.
"Wholly-Owned Subsidiary" means ▇▇▇▇▇▇ ▇▇▇▇▇ Inc., ▇▇▇▇▇▇ Properties
Inc. and any other Subsidiary in which (other than directors' qualifying
ownership interests required by law) one hundred percent (100%) of the
capital stock or other ownership interests of each class having ordinary
voting power, and one hundred percent (100%) of the ownership interests of
every other class, in each case, at the time as of which any determination
is being made, is owned, beneficially and of record, by the Company, or by
one or more of the other Wholly-Owned Subsidiaries, or both.
1.02 Other Interpretive Provisions. (a) The meanings of defined terms are
equally applicable to the singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar words refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation."
(iii) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and including";
the words "to" and "until" each mean "to but excluding", and the word
"through" means "to and including."
(iv) The term "property" includes any kind of property or asset,
real, personal or mixed, tangible or intangible.
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document, and (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute or
regulation.
(e) The captions and headings of this Agreement are for convenience
of reference only and shall not affect the interpretation of this Agreement.
(f) This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters. All
such limitations, tests and measurements are cumulative and shall each be
performed in accordance with their terms. Unless otherwise expressly provided,
any reference to any action of the Agent or the Lenders by way of consent,
approval or waiver shall be deemed modified by the phrase "in its/their sole
discretion."
21
(g) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Agent, the Company
and the other parties, and are the products of all parties. Accordingly, they
shall not be construed against the Lenders or the Agent merely because of the
Agent's or Lenders' involvement in their preparation.
1.03 Accounting Principles. (a) Unless the context otherwise clearly
requires, all accounting terms not expressly defined herein shall be construed,
and all financial computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of the Company.
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments.
(a) The Term Credit. Each Lender severally agrees, on the terms and
conditions set forth herein, to make a single loan to the Company (each such
loan, a "Term Loan") on the Closing Date in an amount equal to the applicable
amount set forth on Schedule 2.01 (such Lender's "Term Commitment"). Amounts
borrowed as Term Loans which are repaid or prepaid by the Company may not be
reborrowed.
(b) The Revolving Credit. Each Lender severally agrees, on the terms
and conditions set forth herein, to make loans to the Company (each such loan, a
"Revolving Loan") from time to time on any Business Day during the period from
the Closing Date to the Revolving Termination Date, in an aggregate amount not
to exceed at any time outstanding the applicable amount set forth on Schedule
2.01 (such amount as the same may be reduced under Section 2.05 or as a result
of one or more assignments under Section 10.08, such Lender's "Revolving
Commitment"); provided, however, that, after giving effect to any Borrowing of
Revolving Loans, the aggregate principal amount of all outstanding Revolving
Loans shall not at any time exceed the combined Revolving Commitments. Within
the limits of each Lender's Revolving Commitment, and subject to the other terms
and conditions hereof, the Company may borrow under this subsection 2.01(b),
prepay under Section 2.06 and reborrow under this subsection 2.01(b).
2.02 Loan Accounts. (a) The Loans made by each Lender shall be evidenced
by one or more loan accounts or records maintained by such Lender in the
ordinary course of business. The loan accounts or records maintained by the
Agent and each Lender shall be presumptive evidence of the accuracy of the
amount of the Loans made by the Lenders to the Company and the interest and
payments thereon. Any failure so to record or any error in doing so shall not,
however, limit or otherwise affect the obligation of the Company hereunder to
pay any amount owing with respect to the Loans.
(b) Upon the request of any Lender made through the Agent, the Loans
made by such Lender may be evidenced by one or more Notes, instead of or in
addition to loan
22
accounts. Each such Lender shall endorse on the schedules annexed to its Note(s)
the date, amount and maturity of each Loan made by it and the amount of each
payment of principal made by the Company with respect thereto. Each such Lender
is irrevocably authorized by the Company to endorse its Note(s) and each
Lender's record shall be presumptive evidence of the accuracy of the information
so recorded; provided, however, that the failure of a Lender to make, or an
error in making, a notation thereon with respect to any Loan shall not limit or
otherwise affect the obligations of the Company hereunder or under any such Note
to such Lender.
2.03 Procedure for Borrowing. (a) Each Borrowing of a Revolving Loan
shall be made upon the Company's irrevocable written notice delivered to the
Agent in the form of a Notice of Borrowing (which notice must be received by the
Agent prior to 9:00 a.m. (Seattle time) (i) three (3) Business Days prior to the
requested Borrowing Date, in the case of Offshore Rate Loans; or (ii) two (2)
Business Days prior to the requested Borrowing Date, in the case of Base Rate
Loans, specifying:
(A) the amount of the Borrowing, which shall be in an
aggregate amount of Five Million Dollars ($5,000,000) or any multiple
of One Million Dollars ($1,000,000) in excess thereof;
(B) the requested Borrowing Date, which shall be a Business
Day;
(C) the Type of Loans comprising the Borrowing; and
(D) the duration of the Interest Period applicable to such
Loans included in such notice. If the Notice of Borrowing fails to
specify the duration of the Interest Period for any Borrowing
comprised of Offshore Rate Loans, such Interest Period shall be one
month.
(b) With respect to the Borrowing of the Term Loans on the Closing
Date, the Company shall have provided irrevocable written notice delivered to
the Agent in the form of a Notice of Borrowing not later than 9:00 a.m. (Seattle
time) three Business Days prior to the Closing Date. Unless the Company shall
specify to the contrary in such Notice of Borrowing, the Term Loans shall be
initially made as Offshore Rate Loans.
(c) The Agent will promptly notify each Lender of its receipt of any
Notice of Borrowing and of the amount of such Lender's Pro Rata Share of that
Borrowing.
(d) Each Lender will make the amount of its Pro Rata Share of each
Borrowing available to the Agent for the account of the Company at the Agent's
Payment Office by 11:00 a.m. (Seattle time) on the Borrowing Date requested by
the Company in funds immediately available to the Agent. The proceeds of all
such Loans will then be made available to the Company by the Agent at such
office by crediting the account of the Company on the books of BofA with the
aggregate of the amounts made available to the Agent by the Lenders and in like
funds as received by the Agent.
(e) After giving effect to any Borrowing, unless the Agent shall
otherwise consent, there may not be more than six different Interest Periods in
effect.
2.04 Conversion and Continuation Elections. (a) The Company may, upon
irrevocable
23
written notice to the Agent in accordance with subsection 2.04(b):
(i) elect, as of any Business Day, in the case of Base
Rate Loans, or as of the last day of the applicable Interest Period, in the
case of any other Type of Loans, to convert any such Loans (or any part
thereof in an amount equal to Five Million Dollars ($5,000,000), or an
integral multiple of One Million Dollars ($1,000,000) in excess thereof)
into Loans of any other Type; or
(ii) elect, as of the last day of the applicable Interest
Period, to continue any Loans having Interest Periods expiring on such day
(or any part thereof in an amount not less than Five Million Dollars
($5,000,000), or that is in an integral multiple of One Million Dollars
($1,000,000) in excess thereof);
provided, that if at any time the aggregate amount of Offshore Rate Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to be less than Five Million Dollars ($5,000,000), such Offshore
Rate Loans shall automatically convert into Base Rate Loans, and on and after
such date the right of the Company to continue such Loans as, and convert such
Loans into, Offshore Rate Loans shall terminate.
(b) The Company shall deliver a Notice of Conversion/Continuation to
be received by the Agent not later than 9:00 a.m. (Seattle time) at least (i)
three (3) Business Days in advance of the Conversion/Continuation Date, if the
Loans are to be converted into or continued as Offshore Rate Loans; and (ii) one
Business Day in advance of the Conversion/ Continuation Date, if the Loans are
to be converted into Base Rate Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Loans to be converted or
continued;
(C) the Type of Loans resulting from the proposed
conversion or continuation; and
(D) other than in the case of conversions into Base Rate
Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to
Offshore Rate Loans, the Company has failed to timely select a new Interest
Period to be applicable to such Offshore Rate Loans, or if any Default or Event
of Default then exists, the Company shall be deemed to have elected to convert
such Offshore Rate Loans into Base Rate Loans effective as of the expiration
date of such Interest Period.
(d) The Agent will promptly notify each Lender of its receipt of a
Notice of Conversion/Continuation, or, if no timely notice is provided by the
Company, the Agent will promptly notify each Lender of the details of any
automatic conversion. All conversions and continuations shall be made ratably
according to the respective outstanding principal amounts of the Loans with
respect to which the notice was given held by each Lender.
(e) Unless the Majority Lenders otherwise consent, during the
existence of a Default or Event of Default, the Company may not elect to have a
Loan converted into or
24
continued as an Offshore Rate Loan.
(f) After giving effect to any conversion or continuation of Loans,
unless the Agent shall otherwise consent, there may not be more than six
different Interest Periods in effect.
2.05 Voluntary Termination or Reduction of Revolving Commitments. The
Company may, upon not less than five (5) Business Days' prior notice to the
Agent, terminate the Revolving Commitments, or permanently reduce the Revolving
Commitments by an aggregate amount of Five Million Dollars ($5,000,000) or any
multiple of One Million Dollars ($1,000,000) in excess thereof; unless, after
giving effect thereto and to any prepayments of Loans made on the effective date
thereof, the then-outstanding principal amount of the Loans would exceed the
amount of the combined Revolving Commitments then in effect. Each reduction of
the combined Revolving Commitments under this Section 2.05 shall reduce the
Revolving Commitment then in effect and shall reduce each future maximum
aggregate Revolving Commitment amount as set forth on Schedule 2.01 by a like
amount. Once reduced in accordance with this Section, the Revolving Commitments
may not be increased. Any reduction of the Revolving Commitments shall be
applied to each Lender according to its Pro Rata Share. All accrued Commitment
Fees to, but not including the effective date of any reduction or termination of
Revolving Commitments, shall be paid on the effective date of such reduction or
termination.
2.06 Optional Prepayments. Subject to Section 3.04, the Company may, at
any time or from time to time ratably prepay Loans in whole or in part, in
amounts of Five Million Dollars ($5,000,000) or any multiple of One Million
Dollars ($1,000,000) in excess thereof provided that with respect to the
prepayment of Term Loans under this Section 2.06 the Company shall have provided
not less than five (5) Business Days prior written irrevocable notice to the
Agent of such prepayment. Such notice of prepayment shall specify the date and
amount of such prepayment and the Type(s) of Loans to be prepaid. The Agent will
promptly notify each Lender of its receipt of any such notice, and of such
Lender's Pro Rata Share of such prepayment. If such notice is given by the
Company, the Company shall make such prepayment and the payment amount specified
in such notice shall be due and payable on the date specified therein, together
with accrued interest to each such date on the amount prepaid and any amounts
required pursuant to Section 3.04. Optional prepayments of Term Loans shall be
applied in inverse order of maturity.
2.07 Mandatory Prepayments of Term Loans.
(a) Asset Dispositions. If the Company or any Subsidiary shall at
any time or from time to time make or agree to make a Disposition of any asset,
or shall suffer an Event of Loss in respect of any asset, then the Company shall
promptly notify the Agent of such proposed Disposition or Event of Loss
(including the amount of the estimated Net Proceeds to be received by the
Company or such Subsidiary in respect thereof). The Company shall, on the last
Business Day of each calendar quarter, prepay the Term Loans (each, an "Asset
Disposition Prepayment") in an aggregate amount equal to the positive sum of:
(i) the sum of (A) the aggregate amount of Net Proceeds received by ▇▇▇▇▇▇
Properties Inc. or ▇▇▇▇▇▇ ▇▇▇▇▇ Inc. in respect of all Dispositions and Events
of Loss that occurred during the Applicable Asset Disposition Period (each, a
"Category A Asset Disposition") plus (B) the aggregate amount of Net Proceeds
received by the Company or any Subsidiary (other than ▇▇▇▇▇▇ Properties Inc. or
▇▇▇▇▇▇ ▇▇▇▇▇ Inc.) in respect of all Dispositions and Events of Loss that
occurred during the Applicable Asset Disposition Period (each, a "Category B
Asset Disposition" and together with any Category A Asset Disposition, an
25
"Applicable Asset Disposition"); less (ii) the sum of (A) in the case of a
Category A Asset Disposition, the aggregate amount of the Net Proceeds received
in respect of such Applicable Asset Dispositions that ▇▇▇▇▇▇ Properties Inc. or
▇▇▇▇▇▇ ▇▇▇▇▇ Inc., as applicable, (1) committed to reinvest in Eligible
Reinvestment Assets under the terms of a binding contract entered into within
twelve (12) months after the date of such Category A Asset Disposition and (2)
actually reinvested in Eligible Reinvestment Assets within twenty-four (24)
months after the date of each such Category A Asset Disposition plus (B) in the
case of a Category B Asset Disposition, the aggregate amount of the Net Proceeds
received in respect of such Applicable Asset Dispositions that the Company or
any Subsidiary (other than ▇▇▇▇▇▇ Properties Inc. or ▇▇▇▇▇▇ ▇▇▇▇▇ Inc.) actually
reinvested in Eligible Reinvestment Assets within twelve (12) months after the
date of each such Category B Asset Disposition; less (iii) the aggregate amount
of Asset Disposition Prepayments previously made by the Company in respect of
Applicable Asset Dispositions; less (iv) the greater of Three Million Dollars
($3,000,000) or the Comparable Amount. As used herein, "Eligible Reinvestment
Assets" means, in respect of any Applicable Asset Disposition, assets used or
that may reasonably be used in the Line of Business of the Company or the
Subsidiary entitled to receive the Net Proceeds from such Applicable Asset
Disposition. As used herein, "Applicable Asset Disposition Period" means, as of
any date of determination, the period commencing on the first day of the month
following the month that is thirty-six (36) months prior to such date of
determination and ending on the last day of the month that is twenty-four (24)
months prior to such date of determination. Notwithstanding anything herein to
the contrary, this Section 2.07(a) shall not apply to the disposition of or
Event of Loss to the real property described in Sections 7.02(d), (e) and (f)
hereof.
(b) Excess Cash. If the Leverage Ratio is greater than or equal to
4.0 to 1.0 as of the end of any fiscal year, as soon as the necessary financial
information is available to determine the amount, if any, of Excess Cash
generated by the Company and its Subsidiaries during such fiscal year, but not
later than each April 15, beginning April 15, 2000, the Company shall prepay the
Term Loans in an amount equal to fifty percent (50%) of the Excess Cash, if any,
for such fiscal year.
(c) Debt Issuance. If the Company or any Subsidiary shall in any
single or related series of transactions issue any new Indebtedness for borrowed
money, the Company shall promptly notify the Agent of the estimated Net Issuance
Proceeds to be received in respect thereof by the Company or Subsidiary.
Promptly upon receipt thereof, but in no event later than seven (7) days after
receipt of such Net Issuance Proceeds, the Company shall prepay the Term Loans
in an aggregate amount equal to (i) the amount of such Net Issuance Proceeds
less (ii) the greater of Three Million Dollars ($3,000,000) or the Comparable
Amount. Notwithstanding anything in this Agreement to the contrary, however, as
used in this Section 2.07(a), "Net Issuance Proceeds" shall not include proceeds
received with respect to (i) the Borrowings, (ii) the FPI Indebtedness, (iii)
the ▇▇▇▇▇▇ Plaza Refinancing Loan, and (iv) Indebtedness incurred for the
purpose of consummating a Permitted Acquisition.
(d) Equity Issuance. If (i) the Company shall issue new common or
preferred equity, or (ii) any Restricted Subsidiary shall issue new common or
preferred equity to any Person other than the Company, ▇▇▇▇▇▇ Broadcasting Inc.
or a Wholly-Owned Subsidiary, in each case other than the issuance of new common
or preferred equity upon the exercise of options under an employee compensation
plan now or hereafter in existence, the Company shall promptly notify the Agent
of the estimated Net Issuance Proceeds of such issuance to be received by the
Company or Subsidiary in respect thereof. Promptly upon receipt thereof, but in
no event later than seven (7) days after receipt of such Net Issuance Proceeds,
the Company shall prepay the
26
Term Loans in an aggregate amount equal to the Specified Percentage of such Net
Issuance Proceeds. As used herein "Specified Percentage" shall mean 0% if the
Leverage Ratio determined for the immediately preceding fiscal quarter is less
than 4.0 to 1.0; twenty-five percent (25%) if the Leverage Ratio determined for
the immediately preceding fiscal quarter is greater than or equal to 4.0 to 1.0
but less than 5.0 to 1.0; and fifty percent (50%) if the Leverage Ratio
determined as of the immediately preceding fiscal quarter is greater than or
equal to 5.0 to 1.0.
(e) General. All payments due under this Section 2.07 shall be
cumulative of any other payments required to be made under this Section 2.07 or
under any other Section of this Agreement. Any prepayments pursuant to this
Section 2.07 shall be applied first to any Base Rate Loans then outstanding and
then to Offshore Rate Loans with the shortest Interest Periods remaining;
provided, however, that if the amount of Base Rate Loans then outstanding is not
sufficient to satisfy the entire prepayment requirement, the Company may, at its
option, place any amounts which it would otherwise be required to use to prepay
Offshore Rate Loans on a day other than the last day of the Interest Period
therefor in an account (the "Prepayment Account") pledged to the Agent for the
benefit of the Lenders until the end of such Interest Period at which time such
pledged amounts will be applied to prepay such Offshore Rate Loans. Unless a
Default or Event of Default shall occur, the Agent shall, acting upon written
instructions of the Company, invest amounts placed in the Prepayment Account in
Eligible Investments; provided, however, the Agent shall not be liable for any
action taken or omitted to be taken in connection with such investment
activities (except for its own gross negligence or willful misconduct). Subject
to the foregoing described pledge, all interest and earnings on amounts placed
in the Prepayment Account shall be for the account of the Company. Prepayments
of Term Loans under this Section 2.07 shall be applied pro rata to each
remaining installment of term loan principal payable under Section 2.08(a)
hereof.
2.08 Repayment.
(a) The Term Credit. The Company shall repay the Term Loans in
quarterly installments payable on the last day of each calendar quarter in
accordance with the following table:
Principal Payment Dates Payment Amount
----------------------- --------------
Quarters ending June 30, 1999 through $ 0
March 31, 2000
Quarters ending June 30, 2000 through $2,812,500
March 31, 2001
Quarters ending June 30, 2001 through $3,750,000
March 31, 2002
Quarters ending June 30, 2002 through $5,625,000
March 31, 2004
Quarters ending June 30, 2004 through $8,437,500
March 31, 2005
Quarters ending June 30, 2005 through $8,333,333
June 30, 2007
(b) The Revolving Credit. On any day when the aggregate outstanding
principal amount of Revolving Loans exceeds the Lenders' aggregate Revolving
Commitments,
27
the Company shall immediately repay the amount of such excess to the Agent for
the account of the Lenders. In addition, on the Revolving Termination Date, the
Company shall repay to the Agent for the account of the Lenders the aggregate
principal amount of Revolving Loans outstanding on such date.
2.09 Interest.
(a) Each Loan shall bear interest on the outstanding principal amount
thereof from the applicable Borrowing Date at a rate per annum equal to the
Offshore Rate or the Base Rate, as the case may be (and subject to the Company's
right to convert to other Types of Loans under Section 2.04), plus the
Applicable Margin changing as such Applicable Margin changes.
(b) Interest on each Loan shall be paid in arrears on each Interest
Payment Date. Interest shall also be paid on the date of any prepayment of
Loans under Section 2.06 or 2.07 for the portion of the Loans so prepaid and
upon payment (including prepayment) in full thereof and, during the existence of
any Event of Default, interest shall be paid on demand of the Agent at the
request or with the consent of the Majority Lenders.
(c) Notwithstanding subsection (a) of this Section, while any Event
of Default exists or after acceleration, the Company shall pay interest (after
as well as before entry of judgment thereon to the extent permitted by law) on
the principal amount of all outstanding Loans and other Obligations, at a rate
per annum which is determined by adding two percent (2%) per annum to the
Applicable Margin then in effect for such Loans and, in the case of Obligations
not subject to an Applicable Margin, at a rate per annum equal to the Base Rate
plus two percent (2%); provided, however, that, on and after the expiration of
any Interest Period applicable to any Offshore Rate Loan outstanding on the date
of occurrence of such Event of Default or acceleration, the principal amount of
such Loan shall, during the continuation of such Event of Default or after
acceleration, bear interest at a rate per annum equal to the Base Rate plus the
Applicable Margin plus two percent (2%).
(d) Anything herein to the contrary notwithstanding, the obligations
of the Company to any Lender hereunder shall be subject to the limitation that
payments of interest shall not be required for any period for which interest is
computed hereunder, to the extent (but only to the extent) that contracting for
or receiving such payment by such Lender would be contrary to the provisions of
any law applicable to such Lender limiting the highest rate of interest that may
be lawfully contracted for, charged or received by such Lender, and in such
event the Company shall pay such Lender interest at the highest rate permitted
by applicable law.
2.10 Fees.
(a) Arrangement and Agency Fees. The Company shall pay an arrangement
fee to the Lead Arranger and Sole Book Manager for the Lead Arranger and Sole
Book Manager's own account, and shall pay an agency fee to the Agent for the
Agent's own account, as required by the letter agreement ("Fee Letter") between
the Company, the Lead Arranger and Sole Book Manager and the Agent dated
November 19, 1998. Such arrangement and agency fees shall be due and payable on
the date of this Agreement and as otherwise specified in the Fee Letter.
(b) Revolving Commitment Fees. The Company shall pay to the Agent for
the
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account of each Lender a commitment fee (the "Revolving Commitment Fee") on the
average daily unused portion of such Lender's Revolving Commitment, computed on
a quarterly basis in arrears on the last Business Day of each calendar quarter
based upon the daily utilization for that quarter as calculated by the Agent and
determined in accordance with the following table:
Commitment Fee Percentage
Company's to be Applied to Unused
Leverage Rating Portion of Commitment
--------------- -------------------------
▇▇▇▇▇ ▇ 0.250%
Levels 2-4 0.375%
Levels 5-6 0.500%
Such Revolving Commitment Fee shall accrue from the date of this Agreement to
the Revolving Termination Date and shall be due and payable quarterly in arrears
on the last Business Day of each calendar quarter commencing on June 30, 1999
and continuing through the Revolving Termination Date, with the final payment to
be made on the Revolving Termination Date; provided that, in connection with any
reduction or termination of Revolving Commitments under Section 2.05, the
accrued Revolving Commitment Fee calculated for the period ending on such date
shall also be paid on the date of such reduction or termination, with the
following quarterly payment being calculated on the basis of the period from
such reduction or termination date to such quarterly payment date. The
Revolving Commitment Fees shall accrue at all times after the date of this
Agreement including at any time after the Closing Date during which one or more
conditions in Article IV are not met.
(c) Term Loan Commitment Fee. The Company shall pay to the Agent for
the account of each Lender a commitment fee (the "Term Commitment Fee") on the
amount of such Lender's Term Commitment, computed on a quarterly basis in
arrears on the last Business Day of each calendar quarter, equal to one-quarter
of one percent (.250%) per annum. The Term Commitment Fee shall accrue from the
date of this Agreement to the Closing Date and shall be due and payable
quarterly in arrears on the last Business Day of each calendar quarter
commencing on June 30, 1999 and continuing through the Closing Date, with the
final payment to be made on the Closing Date.
2.11 Computation of Fees and Interest.
(a) All computations of interest for Base Rate Loans when the Base
Rate is determined by BofA's "reference rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more interest being paid than if
computed on the basis of a 365-day year). Interest and fees shall accrue during
each period during which interest or such fees are computed from the first day
thereof to the last day thereof.
(b) Each determination of an interest rate by the Agent shall be
conclusive and binding on the Company and the Lenders in the absence of manifest
error. The Agent will, at the request of the Company or any Lender, deliver to
the Company or the Lender, as the case may be, a statement showing the
quotations used by the Agent in determining any interest rate and the resulting
interest rate.
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2.12 Payments by the Company.
(a) All payments to be made by the Company shall be made without set-
off, recoupment or counterclaim. Except as otherwise expressly provided herein,
all payments by the Company shall be made to the Agent for the account of the
Lenders at the Agent's Payment Office, and shall be made in dollars and in
immediately available funds, no later than 10:00 a.m. (Seattle time) on the date
specified herein. The Agent will promptly distribute to each Lender its Pro
Rata Share (or other applicable share as expressly provided herein) of such
payment in like funds as received. Any payment received by the Agent later than
10:00 a.m. (Seattle time) shall be deemed to have been received on the following
Business Day and any applicable interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of interest
or fees, as the case may be.
(c) Unless the Agent receives notice from the Company prior to the
date on which any payment is due to the Lenders that the Company will not make
such payment in full as and when required, the Agent may assume that the Company
has made such payment in full to the Agent on such date in immediately available
funds and the Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent the Company has not made such
payment in full to the Agent, each Lender shall repay to the Agent on demand
such amount distributed to such Lender, together with interest thereon at the
Federal Funds Rate for each day from the date such amount is distributed to such
Lender until the date repaid.
(d) Any payments received from the Company or for the Company's
account shall be applied first to fees, expenses and indemnities then due
hereunder or under any other Loan Document, second to interest then due
hereunder or under any other Loan Document, third to ratably repay the principal
amount of any Loans and any Specified Swap Amount, the repayment of which in
each case is then due, according to the respective amounts of principal due to
the Lenders and the Specified Swap Amount due to the Swap Providers, and fourth
to prepay the Loans as provided in Section 2.06.
2.13 Payments by the Lenders to the Agent.
(a) Unless the Agent receives notice from a Lender on or prior to the
Closing Date or, with respect to any Borrowing after the Closing Date, at least
one Business Day prior to the date of such Borrowing, that such Lender will not
make available as and when required hereunder to the Agent for the account of
the Company the amount of that Lender's Pro Rata Share of the Borrowing, the
Agent may assume that each Lender has made such amount available to the Agent in
immediately available funds on the Borrowing Date and the Agent may (but shall
not be so required), in reliance upon such assumption, make available to the
Company on such date a corresponding amount. If and to the extent any Lender
shall not have made its full amount available to the Agent in immediately
available funds and the Agent in such circumstances has made available to the
Company such amount, that Lender shall on the Business Day following such
Borrowing Date make such amount available to the Agent, together with interest
at the Federal Funds Rate for each day during such period. A notice of the
Agent submitted to any Lender with respect to amounts owing under this
subsection (a) shall be
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conclusive, absent manifest error. If such amount is so made available, such
payment to the Agent shall constitute such Lender's Loan on the date of
Borrowing for all purposes of this Agreement. If such amount is not made
available to the Agent on the Business Day following the Borrowing Date, the
Agent will notify the Company of such failure to fund and, upon demand by the
Agent, the Company shall pay such amount to the Agent for the Agent's account,
together with interest thereon for each day elapsed since the date of such
Borrowing, at a rate per annum equal to the interest rate applicable at the time
to the Loans comprising such Borrowing.
(b) The failure of any Lender to make any Loan on any Borrowing Date
shall not relieve any other Lender of any obligation hereunder to make a Loan on
such Borrowing Date, but no Lender shall be responsible for the failure of any
other Lender to make the Loan to be made by such other Lender on any Borrowing
Date.
2.14 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder), such Lender shall immediately (a) notify the Agent of
such fact, and (b) purchase from the other Lenders such participations in the
Loans made by them as shall be necessary to cause such purchasing Lender to
share the excess payment pro rata with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from the
purchasing Lender, such purchase shall to that extent be rescinded and each
other Lender shall repay to the purchasing Lender the purchase price paid
therefor, together with an amount equal to such paying Lender's ratable share
(according to the proportion of (i) the amount of such paying Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Company agrees that any Lender so
purchasing a participation from another Lender may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off, but subject to Section 10.10) with respect to such participation as
fully as if such Lender were the direct creditor of the Company in the amount of
such participation. The Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations purchased under
this Section and will in each case notify the Lenders following any such
purchases or repayments.
2.15 Security and Guaranties.
(a) All Obligations of the Company under this Agreement, the Notes
and all other Loan Documents shall be secured in accordance with the Collateral
Documents.
(b) All Obligations of the Company under this Agreement, the Notes
and all other Loan Documents shall be unconditionally guaranteed by the
Guarantors pursuant to the Guaranties.
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ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Any and all payments by the Company to each Lender or the Agent
under this Agreement and any other Loan Document shall be made free and clear
of, and without deduction or withholding for, any Taxes. In addition, the
Company shall pay all Other Taxes.
(b) If the Company shall be required by law to deduct or withhold any
Taxes, Other Taxes or Further Taxes from or in respect of any sum payable
hereunder to any Lender or the Agent, then:
(i) the sum payable shall be increased as necessary so that,
after making all required deductions and withholdings (including deductions
and withholdings applicable to additional sums payable under this Section),
such Lender or the Agent, as the case may be, receives and retains an
amount equal to the sum it would have received and retained had no such
deductions or withholdings been made;
(ii) the Company shall make such deductions and withholdings;
(iii) the Company shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in accordance
with applicable law; and
(iv) the Company shall also pay to each Lender or the Agent for
the account of such Lender, at the time interest is paid, Further Taxes in
the amount that the respective Lender specifies as necessary to preserve
the after-tax yield the Lender would have received if such Taxes, Other
Taxes or Further Taxes had not been imposed.
(c) The Company agrees to indemnify and hold harmless each Lender and
the Agent for the full amount of (i) Taxes, (ii) Other Taxes, and (iii) Further
Taxes in the amount that the respective Lender specifies as necessary to
preserve the after-tax yield the Lender would have received in respect of its
Loans if such Taxes, Other Taxes or Further Taxes had not been imposed, and any
liability (including penalties, interest, additions to tax and expenses) arising
therefrom or with respect thereto, whether or not such Taxes, Other Taxes or
Further Taxes were correctly or legally asserted. Payment under this
indemnification shall be made within thirty (30) days after the date the Lender
or the Agent makes written demand therefor.
(d) Within thirty (30) days after the date of any payment by the
Company of Taxes, Other Taxes or Further Taxes, the Company shall furnish to
each Lender or the Agent the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment satisfactory to such
Lender or the Agent.
(e) If the Company is required to pay any amount to any Lender or the
Agent pursuant to subsection (b) or (c) of this Section, then such Lender shall
use reasonable efforts
32
(consistent with legal and regulatory restrictions) to change the jurisdiction
of its Lending Office so as to eliminate any such additional payment by the
Company which may thereafter accrue, if such change in the sole judgment of such
Lender is not otherwise disadvantageous to such Lender.
(f) Nothing contained in this Section 3.01 shall override any term or
provision of any Specified Swap Contract regarding withholding taxes relating to
Swap Contracts.
3.02 Illegality.
(a) If any Lender determines that the introduction of any Requirement
of Law, or any change in any Requirement of Law, or in the interpretation or
administration of any Requirement of Law, has made it unlawful, or that any
central bank or other Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make Offshore Rate Loans,
then, on notice thereof by the Lender to the Company through the Agent, any
obligation of the Lenders to make Offshore Rate Loans shall be suspended until
the affected Lender notifies the Agent and the Company that the circumstances
giving rise to such determination no longer exist.
(b) If any Lender determines that it is unlawful to maintain any
Offshore Rate Loan, the Company shall, upon its receipt of notice of such fact
and demand from such Lender (with a copy to the Agent), prepay in full all
Offshore Rate Loans then outstanding, together with interest accrued thereon and
amounts required under Section 3.04, either on the last day of the Interest
Period thereof, if the Lender may lawfully continue to maintain its Offshore
Rate Loans to such day, or immediately, if the Lender may not lawfully continue
to maintain its Offshore Rate Loan. If the Company is required to so prepay the
Offshore Rate Loans, then concurrently with such prepayment, the Company shall
borrow from the Lenders, in the amount of such repayment, a Base Rate Loan.
(c) Before giving any notice to the Agent under this Section, the
affected Lender shall designate a different Lending Office with respect to its
Offshore Rate Loans if such designation will avoid the need for giving such
notice or making such demand and will not, in the judgment of the Lender, be
illegal or otherwise disadvantageous to the Lender.
3.03 Increased Costs and Reduction of Return.
(a) If any Lender determines that, due to either (i) the introduction
of or any change in or change in the interpretation of any law or regulation or
(ii) the compliance by that Lender with any guideline or request from any
central bank or other Governmental Authority (whether or not having the force of
law), there shall be any increase in the cost to such Lender of agreeing to make
or making, funding or maintaining any Offshore Rate Loans, then the Company
shall be liable for, and shall from time to time, upon demand (with a copy of
such demand to be sent to the Agent), pay to the Agent for the account of such
Lender, such additional amounts as are sufficient to compensate such Lender for
such increased costs.
(b) If any Lender shall have determined that (i) the introduction of
any Capital Adequacy Regulation, (ii) any change in any Capital Adequacy
Regulation, (iii) any change in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other Governmental Authority
charged with the interpretation or administration thereof, or (iv) compliance by
the Lender (or its Lending Office) or any corporation controlling
33
the Lender with any Capital Adequacy Regulation, affects or would affect the
amount of capital required or expected to be maintained by the Lender or any
corporation controlling the Lender and (taking into consideration such Lender's
or such corporation's policies with respect to capital adequacy and such
Lender's desired return on capital) determines that the amount of such capital
is increased as a consequence of its Commitments, loans, credits or obligations
under this Agreement, then, upon demand of such Lender to the Company through
the Agent, the Company shall pay to the Lender, from time to time as specified
by the Lender, such additional amounts sufficient to compensate the Lender for
such increase.
3.04 Funding Losses. The Company shall reimburse each Lender and hold
each Lender harmless from any loss or expense which the Lender may sustain or
incur as a consequence of:
(a) the failure of the Company to make on a timely basis any payment
of principal of any Offshore Rate Loan;
(b) the failure of the Company to borrow, continue or convert a Loan
after the Company has given (or is deemed to have given) a Notice of Borrowing
or a Notice of Conversion/ Continuation;
(c) the failure of the Company to make any prepayment in accordance
with any notice delivered under Section 2.06;
(d) the prepayment (including pursuant to Section 2.07) or other
payment (including after acceleration thereof) of an Offshore Rate Loan on a day
that is not the last day of the relevant Interest Period; or
(e) the automatic conversion under Section 2.04 of any Offshore Rate
Loan to a Base Rate Loan on a day that is not the last day of the relevant
Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or from fees payable
to terminate the deposits from which such funds were obtained. For purposes of
calculating amounts payable by the Company to the Lenders under this Section and
under subsection 3.03(a), each Offshore Rate Loan made by a Lender (and each
related reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at the LIBOR used in determining the Offshore Rate
for such Offshore Rate Loan by a matching deposit or other borrowing in the
interbank eurodollar market for a comparable amount and for a comparable period,
whether or not such Offshore Rate Loan is in fact so funded.
3.05 Inability to Determine Rates. If any Lender determines that for any
reason adequate and reasonable means do not exist for determining the Offshore
Rate for any requested Interest Period with respect to a proposed Offshore Rate
Loan, or that the Offshore Rate applicable pursuant to subsection 2.09(a) for
any requested Interest Period with respect to a proposed Offshore Rate Loan does
not adequately and fairly reflect the cost to such Lender of funding such Loan,
the Agent will promptly so notify the Company and each other Lender. Thereafter,
the obligation of the Lenders to make or maintain Offshore Rate Loans hereunder
shall be suspended until the Agent upon the instruction of the Majority Lenders
revokes such notice in writing. Upon receipt of such notice, the Company may
revoke any Notice of Borrowing or Notice of Conversion/Continuation then
submitted by it. If the Company does not revoke such Notice, the Lenders shall
make, convert or continue the Loans, as proposed by the Company, in
34
the amount specified in the applicable notice submitted by the Company, but such
Loans shall be made, converted or continued as Base Rate Loans instead of
Offshore Rate Loans.
3.06 Reserves on Offshore Rate Loans. The Company shall pay to each
Lender, as long as such Lender shall be required under regulations of the FRB to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as "Eurocurrency
liabilities"), additional costs on the unpaid principal amount of each Offshore
Rate Loan equal to the actual costs of such reserves allocated to such Loan by
the Lender if, and to the extent that, such costs were not included in the
calculation of the Offshore Rate (as determined by the Lender in good faith,
which determination shall be conclusive) or otherwise payable by the Company to
the Lenders under subsection 3.03(a), payable on each date on which interest is
payable on such Loan, provided the Company shall have received at least fifteen
(15) days' prior written notice (with a copy to the Agent) of such additional
interest from the Lender. If a Lender fails to give notice fifteen (15) days
prior to the relevant Interest Payment Date, such additional interest shall be
payable fifteen (15) days from receipt of such notice.
3.07 Certificates of Lenders. Any Lender claiming reimbursement or
compensation under this Article III shall deliver to the Company (with a copy to
the Agent) a certificate setting forth in reasonable detail the amount payable
to the Lender hereunder and such certificate shall be conclusive and binding on
the Company in the absence of manifest error.
3.08 Substitution of Lenders. Upon the receipt by the Company from any
Lender (an "Affected Lender") of a claim for compensation under Section 3.03,
the Company may: (i) request the Affected Lender to use its best efforts to
obtain a replacement bank or financial institution satisfactory to the Company
(a "Replacement Lender") to acquire and assume all or a ratable part of all of
such Affected Lender's Loans and Revolving Commitment, and if such Affected
Lender or any Affiliate thereof is a Swap Provider, all Specified Swap Contracts
of such Affected Lender and Affiliate; (ii) request one more of the other
Lenders to acquire and assume all or part of such Affected Lender's Loans and
Revolving Commitment; or (iii) designate a Replacement Lender. Any such
designation of a Replacement Lender under clause (i) or (iii) shall be subject
to the prior written consent of the Agent (which consent shall not be
unreasonably withheld).
3.09 Survival. The agreements and obligations of the Company in this
Article III shall survive the payment of all other Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
4.01 Conditions of Initial Loans. The obligation of each Lender to make
its initial Loan hereunder is subject to the condition that the Agent shall have
received on or before June 30, 1999 all of the following, in form and substance
satisfactory to the Agent and each Lender, and in sufficient copies for the
Agent and each Lender:
(a) Credit Agreement and Notes. This Agreement and the Notes
executed by each party thereto;
(b) Resolutions; Incumbency. (i) Copies of the resolutions of the
board of
35
directors of the Company and each Guarantor authorizing the transactions
contemplated hereby, certified as of the Closing Date by the Secretary or
an Assistant Secretary of such Person; and
(ii) A certificate of the Secretary or Assistant Secretary of
the Company and each Guarantor certifying the names and true signatures of
the officers of the Company or such Guarantor authorized to execute,
deliver and perform, as applicable, this Agreement, and all other Loan
Documents to be delivered by it hereunder;
(c) Organization Documents; Good Standing. Each of the following
documents:
(i) the articles of incorporation and the bylaws of the Company
and each Guarantor as in effect on the Closing Date, certified by the
Secretary or Assistant Secretary of the Company or such Guarantor as of the
Closing Date; and
(ii) a certificate of existence or good standing, as applicable,
for the Company and each Guarantor from the Secretary of State (or similar,
applicable Governmental Authority) of its state of incorporation and each
state where the Company or such Guarantor is qualified to do business as a
foreign corporation as of a recent date, together with a bring-down
certificate by facsimile, dated the Closing Date;
(d) Legal Opinion. An opinion of ▇▇▇▇▇▇ & ▇▇▇▇ P.C., counsel to the
Company and the Guarantors and addressed to the Agent and the Lenders,
substantially in the form of Exhibit D;
(e) Payment of Fees. Evidence of payment by the Company of all
accrued and unpaid fees (including ticking fees, arrangement fees and agency
fees), costs and expenses to the extent then due and payable on the Closing
Date, and, subject to the letter agreement between the Company and the Agent
dated June 24, 1999, the Attorney Costs of BofA to the extent invoiced prior to
or on the Closing Date, together with such additional amounts of Attorney Costs
as shall constitute BofA's reasonable estimate of Attorney Costs incurred or to
be incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude final settling of accounts between the Company and
BofA); including any such costs, fees and expenses arising under or referenced
in Sections 2.10 and 10.04;
(f) Ownership of Collateral. Evidence satisfactory to the Agent and
the Lenders that the Company owns the Collateral free and clear of any Liens;
(g) Collateral Documents. The Collateral Documents, executed by the
Company, in appropriate form for recording, where necessary, together with:
(i) acknowledgment copies of all UCC-l financing statements
filed, registered or recorded to perfect the security interests of the
Agent for the benefit of the Lenders, or other evidence satisfactory to the
Agent that there has been filed, registered or recorded all financing
statements and other filings, registrations and recordings necessary and
advisable to perfect the Liens of the Agent for the benefit of the Lenders
in accordance with applicable law;
36
(ii) written advice relating to such Lien and judgment searches
as the Agent shall have requested, and such termination statements or other
documents as may be necessary to confirm that the Collateral is subject to
no other Liens in favor of any Persons (other than Permitted Liens);
(iii) all certificates and instruments representing the
Collateral, stock transfer powers executed in blank with signatures
guaranteed as the Agent or the Lenders may specify and if requested by any
Lender, a completed Federal Reserve Form U-1 for such Lender;
(iv) evidence that all other actions necessary or, in the
opinion of the Agent or the Lenders, desirable to perfect and protect the
first priority Lien created by the Collateral Documents, and to enhance the
Agent's ability to preserve and protect its interests in and access to the
Collateral, have been taken;
(h) Guaranties. The Guaranties executed by each Guarantor;
(i) Insurance Policies. Standard lenders' payable endorsements with
respect to the insurance policies or other instruments or documents evidencing
insurance coverage on the properties of the Company in accordance with Section
6.06;
(j) Certificate. A certificate signed by a Responsible Officer,
dated as of the Closing Date, stating that:
(i) the representations and warranties contained in Article V
are true and correct on and as of such date, as though made on and as of
such date;
(ii) no Default or Event of Default exists or would result from
the initial Borrowing, and setting forth calculations demonstrating
compliance as of the Closing Date with the financial covenant set forth in
Section 6.15(a); and
(iii) there has occurred since December 31, 1998, no event or
circumstance that has resulted or could reasonably be expected to result in
a Material Adverse Effect;
(k) Retlaw Transaction. (i) Evidence satisfactory to the Agent and
the Lenders that the Company has consummated or will, simultaneously with the
making of the Loans on the Closing Date, consummate the acquisition of eleven
(11) television stations from Retlaw and its Subsidiaries (the "Retlaw
Transaction");(ii) receipt by the Agent and review by each Lender of all
agreements, documents, instruments relating to the Retlaw Transaction (the
"Retlaw Transaction Documents") reasonably requested by the Agent or such Lender
and confirmation that all such Retlaw Transaction Documents are in form and
content satisfactory to the Agent and the Lenders, (iii) evidence satisfactory
to the Agent and the Lenders that all of the conditions precedent contained in
the Retlaw Transaction Documents have been satisfied or waived by the applicable
party or simultaneously with the making of the Loans on the Closing Date, will
be waived or satisfied; and (iv) evidence satisfactory to the Agent and the
Lenders that the Company has obtained or will obtain simultaneously with the
making of the Loans on the Closing Date, all material licenses, permits and
franchises necessary or advisable for the Company to consummate the Retlaw
Transaction and to own and operate the properties and assets
37
acquired by the Company pursuant to or in connection with the Retlaw
Transaction; and
(l) Other Documents. Such other approvals, opinions, documents or
materials as the Agent or any Lender may request.
4.02 Conditions to All Borrowings. The obligation of each Lender to make
any Loan to be made by it (including its initial Loan) or to continue or convert
any Loan under Section 2.04 is subject to the satisfaction of the following
conditions precedent on the relevant Borrowing Date or Conversion/Continuation
Date:
(a) Notice of Borrowing or Conversion/Continuation. The Agent shall
have received (with, in the case of the initial Loan only, a copy for each
Lender) a Notice of Borrowing or a Notice of Conversion/Continuation, as
applicable;
(b) Continuation of Representations and Warranties. The
representations and warranties in Article V shall be true and correct on and as
of such Borrowing Date or Conversion/ Continuation Date with the same effect as
if made on and as of such Borrowing Date or Conversion/Continuation Date (except
to the extent such representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct as of such earlier date);
(c) Representations and Warranties for New Subsidiaries. Each
representation and warranty in Article V made with respect to a Subsidiary shall
be true and correct on and as of such Borrowing Date or Conversion/Continuation
Date with the same effect as if made on and as of such Borrowing Date or
Conversion/Continuation Date (except to the extent such representations and
warranties expressly refer to an earlier date, in which case they shall be true
and correct as of such earlier date) with respect to any new Subsidiary to be
acquired or formed in connection with or immediately following any Borrowing
hereunder;
(d) No Existing Default. No Default or Event of Default shall exist
or shall result from such Borrowing or continuation or conversion; and
(e) No Future Advance Notice. Neither the Agent nor any Lender shall
have received from the Company any notice that any Collateral Document will no
longer secure on a first priority basis future advances or future Loans to be
made or extended under this Agreement;
(f) Guaranties. ▇▇▇▇▇▇ Broadcasting Inc. and each Material
Subsidiary that is a Wholly-Owned Subsidiary shall have executed and delivered a
Guaranty to the Agent (for the benefit of the Agent and the Lenders) and neither
the Agent nor any Lender shall have received from the Company or any Guarantor
any notice terminating or purporting to terminate any Guaranty (as to existing
or future Obligations) or claiming that any Guaranty is not or will in the
future not be fully enforceable against the Guarantor in accordance with its
terms; and
(g) Corporate Documents for New Guarantors. For each Guarantor which
was not a Guarantor on the Closing Date, the Agent shall have received (with a
copy for each Lender) each of the following documents in form and substance
reasonably satisfactory to the Agent and the Lenders: (i) copies of the
resolutions of the board of directors (or comparable governing body if such
Guarantor is not a corporation) of such Guarantor authorizing the transactions
contemplated by its Guaranty certified as of a recent date by the Secretary or
an
38
Assistant Secretary of such Guarantor; (ii) a certificate of the Secretary or
Assistant Secretary of such Guarantor certifying the names and true signatures
of the officers of such Guarantor executing and delivering such Guarantor's
Guaranty; (iii) the Organization Documents of such Guarantor as in effect on the
date such Guarantor's Guaranty is executed and delivered hereunder certified by
the Secretary or Assistant Secretary of such Guarantor; (iv) a certificate of
existence or good standing, as applicable, for such Guarantor from the Secretary
of State (or similar applicable Governmental Authority) of the state of its
incorporation or formation and each state where such Guarantor is qualified to
do business as a foreign corporation as of a recent date; and (v) upon the
request of Majority Lenders, an opinion of ▇▇▇▇▇▇ and ▇▇▇▇ P.C. (or such other
legal counsel as may be selected by such Guarantor and be satisfactory to the
Agent and Majority Lenders) addressed to the Agent and the Lenders, covering
such subjects and in such form and content as may be reasonably requested by the
Agent and Majority Lenders.
Each Notice of Borrowing and Notice of Conversion/Continuation submitted by the
Company hereunder shall constitute a representation and warranty by the Company
hereunder, as of the date of each such notice and as of each Borrowing Date or
Conversion/Continuation Date, as applicable, that the conditions in this Section
4.02 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Lender that:
5.01 Company Existence and Power. Each of the Company and its
Subsidiaries:
(a) is a corporation or a limited liability company duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or formation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its business
and to execute, deliver, and perform its obligations under the Loan Documents to
which it is a party;
(c) is duly qualified as a foreign corporation and is licensed and in
good standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification
or license; and
(d) is in compliance with all Requirements of Law; except, in each
case referred to in clause (c) or clause (d), to the extent that the failure to
do so could not reasonably be expected to have a Material Adverse Effect.
5.02 Company Authorization; No Contravention. The execution, delivery and
performance by the Company of this Agreement and each other Loan Document to
which the Company is party, have been duly authorized by all necessary corporate
action, and do not and will not:
(a) contravene the terms of any of the Company's Organization
Documents;
39
(b) conflict with or result in any breach or contravention of, or the
creation of any Lien under, any document evidencing any material Contractual
Obligation to which the Company is a party or any order, injunction, writ or
decree of any Governmental Authority to which the Company or its property is
subject; or
(c) violate any Requirement of Law.
5.03 Company Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority (except for recordings or filings in connection with the
Liens granted to the Agent under the Collateral Documents) is necessary or
required in connection with the execution, delivery or performance by, or
enforcement against, the Company or any of its Subsidiaries of the Agreement or
any other Loan Document, except those that have been obtained or made prior to
the Closing Date, certified copies of which having been furnished to the Agent
and each Lender or except as otherwise referred to in the Pledge Agreement.
5.04 Company Binding Effect. This Agreement and each other Loan Document
to which the Company is a party constitute the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
5.05 Guarantor Existence and Power. Each Guarantor:
(a) is a corporation or limited liability company duly organized or
formed, validly existing and in good standing under the laws of the jurisdiction
of its incorporation or formation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its business
and to execute, deliver, and perform its obligations under the Guaranty to which
it is a party;
(c) is duly qualified as a foreign corporation or foreign limited
liability company and is licensed and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification or license; and
(d) is in compliance with all Requirements of Law; except, in each
case referred to in clause (c) or clause (d), to the extent that the failure to
do so could not reasonably be expected to have a Material Adverse Effect.
5.06 Guarantor Authorization; No Contravention. The execution, delivery
and performance by each Guarantor of the Guaranty to which it is party, have
been duly authorized by all necessary corporate, partnership, membership, or
other comparable action, and do not and will not:
(a) contravene the terms of any of such Guarantor's Organization
Documents;
(b) conflict with or result in any breach or contravention of, or the
creation of
40
any Lien under, any document evidencing any material Contractual Obligation to
which such Guarantor is a party or any order, injunction, writ or decree of any
Governmental Authority to which such Guarantor or its property is subject; or
(c) violate any Requirement of Law.
5.07 Guarantor Governmental Authorization. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, any Guarantor of
the Guaranty to which such Guarantor is a party.
5.08 Guarantor Binding Effect. The Guaranty to which each Guarantor is a
party constitutes the legal, valid and binding obligations of such Guarantor,
enforceable against such Guarantor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
5.09 Litigation. Except as specifically disclosed in Schedule 5.09, there
are no actions, suits, proceedings, claims or disputes pending, or to the best
knowledge of the Company, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against the Company, any
Subsidiary or any of their respective properties which:
(a) purport to affect or pertain to this Agreement or any other Loan
Document, or any of the transactions contemplated hereby or thereby; or
(b) if determined adversely to the Company or any of its
Subsidiaries, would reasonably be expected (i) to have a Material Adverse
Effect, or (ii) to impair or defeat the Lien of the Agent on any of the
Collateral or any rights of the Company therein. No injunction, writ, temporary
restraining order or any order of any nature has been issued by any court or
other Governmental Authority purporting to enjoin or restrain the execution,
delivery or performance of this Agreement or any other Loan Document, or
directing that the transactions provided for herein or therein not be
consummated as herein or therein provided.
5.10 No Default. No Default or Event of Default exists or would result
from the incurring of any Obligations by the Company or from the grant or
perfection of the Liens of the Agent and the Lenders on the Collateral. As of
the Closing Date, neither the Company nor any Subsidiary is in default under or
with respect to any Contractual Obligation in any respect which, individually or
together with all such defaults, could reasonably be expected to have a Material
Adverse Effect, or that would, if such default had occurred after the Closing
Date, create an Event of Default under subsection 8.01(e).
5.11 ERISA Compliance. Except as specifically disclosed in Schedule 5.11:
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law. Each
Plan which is intended to qualify under Section 401(a) of the Code has received
a favorable determination letter from the IRS and to the best knowledge of the
Company, nothing has occurred which would cause the loss of such qualification.
The Company and each ERISA Affiliate has made all required contributions to any
Plan subject to Section 412 of the Code, and no application for a funding waiver
or an extension of any amortization period pursuant to Section 412 of the Code
has been
41
made with respect to any Plan.
(b) There are no pending or, to the best knowledge of Company,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan which has resulted or could reasonably be expected to
result in a Material Adverse Effect. There has been no prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Plan
which has resulted or could reasonably be expected to result in a Material
Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither
the Company nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA); (iv)
neither the Company nor any ERISA Affiliate has incurred, or reasonably expects
to incur, any liability (and no event has occurred which, with the giving of
notice under Section 4219 of ERISA, would result in such liability) under
Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v)
neither the Company nor any ERISA Affiliate has engaged in a transaction that
could be subject to Section 4069 or 4212(c) of ERISA.
5.12 Use of Proceeds; Margin Regulations. The proceeds of the Loans are
to be used solely for the purposes set forth in and permitted by Section 6.13
and Section 7.07. Neither the Company nor any Subsidiary is generally engaged
in the business of purchasing or selling Margin Stock or extending credit for
the purpose of purchasing or carrying Margin Stock.
5.13 Title to Properties. The Company and each Subsidiary have good
record and marketable title in fee simple to, or valid leasehold interests in,
all real property necessary or used in the ordinary conduct of their respective
businesses, except for such defects in title which if determined adversely to
the Company or such Subsidiary could not have, individually or in the aggregate,
a Material Adverse Effect. As of the Closing Date, the property of the Company
and its Subsidiaries is subject to no Liens, other than Permitted Liens.
5.14 Taxes. The Company and its Subsidiaries have filed all Federal and
other material tax returns and reports required to be filed, and have paid all
Federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or assets
otherwise due and payable, except those which are being contested in good faith
by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the Company or
any Subsidiary that would, if made, have a Material Adverse Effect.
5.15 Financial Condition. (a) The audited consolidated financial
statements of the Company and its Subsidiaries dated December 31, 1998, and the
related consolidated statements of income or operations, shareholders' equity
and cash flows for the fiscal year ended on that date:
(i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein, subject to ordinary, good faith year end audit adjustments;
(ii) fairly present the financial condition of the Company and
its Subsidiaries as of the date thereof and results of operations for the
period covered
42
thereby; and
(iii) except as specifically disclosed in Schedule 5.15, show
all material Indebtedness and other liabilities, direct or contingent, of
the Company and its consolidated Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Contingent
Obligations.
(b) Since December 31, 1998 there has been no Material Adverse
Effect.
5.16 Environmental Matters. (a) Except as specifically disclosed in
Schedule 5.16, the on-going operations of the Company and each of its
Subsidiaries comply in all respects with all Environmental Laws, except such
non-compliance which (if enforced in accordance with applicable law and
determined adversely to the Company or such Subsidiary) could not, individually
or in the aggregate, have a Material Adverse Effect.
(b) Except as specifically disclosed in Schedule 5.16, the Company
and each of its Subsidiaries have obtained all licenses, permits, authorizations
and registrations required under any Environmental Law ("Environmental Permits")
and necessary for their respective ordinary course operations, all such
Environmental Permits are in good standing, and the Company and each of its
Subsidiaries are in compliance with all material terms and conditions of such
Environmental Permits.
(c) Except as specifically disclosed in Schedule 5.16, none of the
Company, any of its Subsidiaries or any of their respective present property or
operations, is subject to any outstanding written order from or agreement with
any Governmental Authority, nor subject to any judicial or docketed
administrative proceeding, respecting any Environmental Law, Environmental Claim
or Hazardous Material.
(d) Except as specifically disclosed in Schedule 5.16, there are no
Hazardous Materials or other conditions or circumstances existing with respect
to any property of the Company or any Subsidiary, or arising from operations
prior to the Closing Date, of the Company or any of its Subsidiaries that would
reasonably be expected to give rise to Environmental Claims that, individually
or in the aggregate, could have a Material Adverse Effect. In addition, (i)
neither the Company nor any Subsidiary has any underground storage tanks (x)
that are not properly registered or permitted under applicable Environmental
Laws, or (y) that are leaking or disposing of Hazardous Materials off-site, and
(ii) the Company and its Subsidiaries have notified all of their employees of
the existence, if any, of any health hazard arising from the conditions of their
employment and have met all notification requirements under Title III of CERCLA
(42 U.S.C. (S)11001-11050), as amended, and all other Environmental Laws.
5.17 Collateral Documents.
(a) The provisions of each of the Collateral Documents are effective
to create in favor of the Agent for the benefit of the Lenders, a legal, valid
and enforceable first priority security interest in all right, title and
interest of the Company in the collateral described therein.
(b) All representations and warranties of the Company contained in
the Collateral Documents are true and correct.
5.18 Regulated Entities. None of the Company, any Person controlling the
Company, or
43
any Subsidiary, is an "Investment Company" within the meaning of the
Investment Company Act of 1940. The Company is not subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any other Federal
or state statute or regulation limiting its ability to incur Indebtedness.
5.19 No Burdensome Restrictions. Neither the Company nor any Subsidiary
is a party to or bound by any Contractual Obligation, or subject to any
restriction in any Organization Document, or any Requirement of Law, which could
reasonably be expected to have a Material Adverse Effect.
5.20 Copyrights, Patents, Trademarks and Licenses, etc. The Company or
its Subsidiaries own or are licensed or otherwise have the right to use all of
the patents, trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without conflict with the rights
of any other Person. To the best knowledge of the Company, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by the Company or any
Subsidiary infringes upon any rights held by any other Person. Except as
specifically disclosed in Schedule 5.09, no claim or litigation regarding any of
the foregoing is pending or threatened, and no patent, invention, device,
application, principle or any statute, law, rule, regulation, standard or code
is pending or, to the knowledge of the Company, proposed, which, in either case,
could reasonably be expected to have a Material Adverse Effect.
5.21 Subsidiaries. As of the Closing Date, the Company has no
Subsidiaries other than those specifically disclosed in part (a) of Schedule
5.21 hereto and has no equity investments in any other corporation or entity
other than those specifically disclosed in part (b) of Schedule 5.21.
5.22 Insurance. Except as specifically disclosed in Schedule 5.22, the
properties of the Company and its Subsidiaries are insured with financially
sound and reputable insurance companies not Affiliates of the Company, in such
amounts, with such deductibles and covering such risks as are customarily
carried by companies of similar size engaged in similar businesses and owning
similar properties in localities where the Company or such Subsidiary operates.
5.23 Solvency. The Company and each of its Subsidiaries is Solvent.
5.24 Intercompany Loans. The aggregate outstanding principal balance of
all extensions of credit by the Company to ▇▇▇▇▇▇ Properties Inc. and ▇▇▇▇▇▇
▇▇▇▇▇ Inc. as of March 31, 1999 is accurately set forth in Schedule 5.24 hereto.
The outstanding principal balance of all extensions of credit made by all
Subsidiaries to all other Subsidiaries or Affiliates does not exceed the net
aggregate amount of Two Million Five Hundred Thousand Dollars ($2,500,000).
5.25 Swap Obligations.
(a) Neither the Company nor any of its Subsidiaries has incurred any
outstanding obligations under any Swap Contracts other than Permitted Swap
Obligations. The Company has undertaken its own independent assessment of its
consolidated assets, liabilities and commitments and has considered appropriate
means of mitigating and managing risks associated with such matters and has not
relied on any swap counterparty or any Affiliate of any swap counterparty in
determining whether to enter into any Swap Contract.
44
(b) Neither the Company nor any of its Subsidiaries has entered into
any master agreement relating to Swap Contracts and under which termination
values resulting from Swap Contracts that are Specified Swap Contracts are
nettable against termination values resulting from Swap Contracts that are not
Specified Swap Contracts, unless only Specified Swap Contracts are outstanding
under such master agreement.
5.26 Year 2000 Compliance. The Company and its Subsidiaries have
developed a comprehensive program to address the "Year 2000 problem" (that is,
the inability of computers, as well as embedded microchips in non-computing
devices, to perform properly date-sensitive functions with respect to certain
dates prior to and after December 31, 1999). The Company and its Subsidiaries
have implemented that program substantially in accordance with its timetable and
budget and, to the best of their knowledge, they will substantially avoid the
Year 2000 problem as to all computers, as well as embedded microchips in non-
computing devices, that are material to the Company's and its Subsidiaries
business, properties or operations. The Company and its Subsidiaries have
developed and are continuing to reassess feasible contingency plans adequate to
ensure materially uninterrupted and unimpaired business operation in the event
of failure of their own or a third party's systems or equipment due to the Year
2000 problem, including those of vendors, customers, and suppliers, as well as a
general failure of or interruption in its communications and delivery
infrastructure.
5.27 Retlaw Transaction. As of the Closing Date:
(a) The Company has provided to the Agent and each Lender true and
complete copies of all of the Retlaw Transaction Documents reasonably requested
by the Agent or such Lender.
(b) To the best of its knowledge, the Company has disclosed to the
Agent and each Lender all material facts related to the Retlaw Transaction.
(c) The representations or warranties made in the Retlaw Transaction
Documents by the Company or any Person that was a Subsidiary of the Company at
the time of the execution and delivery of the Retlaw Transaction Documents
contain no untrue statements of a material fact or omit any material fact
required to be stated therein or necessary to make the statements made therein,
in light of the circumstances under which they are made, misleading as of the
time when made.
(d) To the Company's knowledge, the representations or warranties
made in the Retlaw Transaction Documents by the other parties thereto contain no
untrue statements of a material fact or omit any material fact required to be
stated therein or necessary to make the statements made therein, in light of the
circumstances under which they are made, misleading as of the time when made.
(e) The Company has obtained all material licenses, permits and
franchises necessary or advisable for the Company to consummate the Retlaw
Transaction and to own and operate the properties and assets acquired by the
Company pursuant to or in connection with the Retlaw Transaction.
5.28 Full Disclosure. None of the representations or warranties made by
the Company or any Subsidiary in the Loan Documents as of the date such
representations and warranties are
45
made or deemed made, and none of the statements contained in any exhibit,
report, statement or certificate furnished by or on behalf of the Company or any
Subsidiary in connection with the Loan Documents (including the offering and
disclosure materials delivered by or on behalf of the Company to the Lenders
prior to the Closing Date), contains any untrue statement of a material fact or
omits any material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they are
made, not misleading as of the time when made or delivered.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, unless the Majority Lenders
waive compliance in writing:
6.01 Financial Statements. The Company shall deliver to the Agent, in
form and detail satisfactory to the Agent and the Majority Lenders, with
sufficient copies for the Agent and each Lender:
(a) as soon as available, but not later than ninety (90) days after
the end of each fiscal year (commencing with the fiscal year ended December 31,
1999), a copy of the audited consolidated balance sheet of the Company and its
Subsidiaries as at the end of such year and the related consolidated statements
of income or operations, shareholders' equity and cash flows for such year,
setting forth in each case in comparative form the figures for the previous
fiscal year, and accompanied by the opinion of a nationally-recognized
independent public accounting firm ("Independent Auditor") which report shall
state that such consolidated financial statements present fairly the financial
position for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years. Such opinion shall not be qualified or limited
because of a restricted or limited examination by the Independent Auditor of any
material portion of the Company's or any Subsidiary's records or possible errors
generated by financial reporting and related systems due to the Year 2000
problem and shall be delivered to the Agent pursuant to a reliance agreement
between the Agent and Lenders and such Independent Auditor in form and substance
satisfactory to the Agent; and
(b) as soon as available, but not later than forty-five (45) days
after the end of each of the first three fiscal quarters of the Company
(commencing with the fiscal quarter ending June 30, 1999) and not later than
sixty (60) days after the end of each fourth fiscal quarter of the Company, a
copy of the unaudited consolidated and consolidating balance sheets of the
Company and each of its Subsidiaries as of the end of such quarter and the
related consolidated and consolidating statements of income, shareholders'
equity and cash flows for the period commencing on the first day and ending on
the last day of such quarter, and certified by a Responsible Officer as fairly
presenting, in accordance with GAAP (subject to ordinary, good faith year-end
audit adjustments), the financial position and the results of operations of the
Company and the Subsidiaries.
6.02 Certificates; Other Information. The Company shall furnish to the
Agent, with sufficient copies for the Agent and each Lender:
46
(a) concurrently with the delivery of the financial statements
referred to in subsections 6.01(a) and (b), a Compliance Certificate executed by
a Responsible Officer;
(b) promptly, copies of all financial statements and reports that the
Company sends to its shareholders, and copies of all financial statements and
regular, periodical or special reports (including Forms 10K, 10Q and 8K) that
the Company or any Subsidiary may make to, or file with, the SEC; and
(c) promptly, such additional information regarding the business,
financial or corporate affairs of the Company or any Subsidiary as the Agent, at
the request of any Lender, may from time to time reasonably request.
6.03 Notices. The Company shall promptly notify the Agent:
(a) of the occurrence of any Default or Event of Default;
(b) of (i) any breach or non-performance of, or any default under,
any Contractual Obligation of the Company or any of its Subsidiaries which could
result in a Material Adverse Effect; and (ii) any dispute, litigation,
investigation, proceeding or suspension which may exist at any time between the
Company or any of its Subsidiaries and any Governmental Authority which if
determined adversely to the Company or such Subsidiary could, individually or in
the aggregate, have a Material Adverse Effect;
(c) of the commencement of, or any material development in, any
litigation or proceeding affecting the Company or any Subsidiary (i) in which
the amount of damages claimed is Five Million Dollars ($5,000,000) (or its
equivalent in another currency or currencies) or more, (ii) in which injunctive
or similar relief is sought and which, if adversely determined, would reasonably
be expected to have a Material Adverse Effect, or (iii) in which the relief
sought is an injunction or other stay of the performance of this Agreement or
any Loan Document;
(d) upon, but in no event later than ten (10) days after, becoming
aware of (i) any and all enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened against the Company or
any Subsidiary or any of their respective properties pursuant to any applicable
Environmental Laws, (ii) all other Environmental Claims, and (iii) any
environmental or similar condition on any real property adjoin ing or in the
vicinity of the property of the Company or any Subsidiary that could reasonably
be anticipated to cause such property or any part thereof to be subject to any
restrictions on the ownership, occupancy, transferability or use of such
property under any Environmental Laws;
(e) of any other litigation or proceeding affecting the Company or
any of its Subsidiaries which the Company would be required to report to the SEC
within four days after reporting the same to the SEC;
(f) of the occurrence of any of the following events affecting the
Company or any ERISA Affiliate (but in no event more than ten (10) days after
such event), and deliver to the Agent with sufficient copies for the Agent and
each Lender a copy of any notice with respect to such event that is filed with a
Governmental Authority and any notice delivered by a Governmental Authority to
the Company or any ERISA Affiliate with respect to such event:
(i) an ERISA Event;
47
(ii) a material increase in the Unfunded Pension Liability of
any Pension Plan;
(iii) the adoption of, or the commencement of contributions to,
any Plan subject to Section 412 of the Code by the Company or any ERISA
Affiliate; or
(iv) the adoption of any amendment to a Plan subject to Section
412 of the Code, if such amendment results in a material increase in
contributions or Unfunded Pension Liability.
(g) of any material change in accounting policies or financial
reporting practices by the Company or any of its consolidated Subsidiaries;
(h) of the entry by the Company into any Specified Swap Contract,
together with the details thereof;
(i) of the occurrence of any default, event of default, termination
event or other event under any Specified Swap Contract that after the giving of
notice, passage of time or both, would permit either counterparty to such
Specified Swap Contract to terminate early any or all trades relating to such
contract; and
(j) upon the request from time to time of the Agent, the Swap
Termination Values, together with a description of the method by which such
amounts were determined, relating to any then-outstanding Swap Contracts to
which the Company or any of its Subsidiaries is party.
Each notice under this Section shall be accompanied by a written
statement by a Responsible Officer setting forth details of the occurrence
referred to therein, and stating what action the Company or any affected
Subsidiary proposes to take with respect thereto and at what time. Each notice
under subsection 6.03(a) shall describe with particularity any and all clauses
or provisions of this Agreement or other Loan Document that have been (or would
reasonably be expected to be) breached or violated.
6.04 Preservation of Corporate Existence, Etc. The Company shall, and
shall cause each Material Subsidiary to:
(a) preserve and maintain in full force and effect its corporate
existence and good standing under the laws of its state or jurisdiction of
incorporation, except as permitted by Section 7.03;
(b) preserve and maintain in full force and effect all governmental
rights, privileges, qualifications, permits, licenses and franchises necessary
or desirable in the normal conduct of its business except in connection with
transactions permitted by Section 7.03 and sales of assets permitted by Section
7.02;
(c) use reasonable efforts, in the ordinary course of business, to
preserve its business organization and goodwill; and
(d) preserve or renew all of its registered patents, trademarks,
trade names
48
and service marks, the non-preservation of which could reasonably be expected to
have a Material Adverse Effect.
6.05 Maintenance of Property. The Company shall maintain, and shall cause
each Subsidiary to maintain, and preserve all its property which is used or
useful in its business in good working order and condition, ordinary wear and
tear excepted and make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect, except as permitted by Section 7.02.
The Company and each Subsidiary shall use the standard of care typical in the
industry in the operation and maintenance of its facilities.
6.06 Insurance. The Company shall maintain, and shall cause each of its
Subsidiaries to maintain, with financially sound and reputable independent
insurers, insurance with respect to its properties and business against loss or
damage of the kinds customarily insured against by Persons engaged in the same
or similar business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons.
6.07 Payment of Obligations. The Company shall, and shall cause each
Subsidiary to, pay and discharge as the same shall become due and payable, all
their respective obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are being contested
in good faith by appropriate proceedings and adequate reserves in accordance
with GAAP are being maintained by the Company or such Subsidiary;
(b) all lawful claims which, if unpaid, would by law become a Lien
upon its property; and
(c) all Indebtedness, as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement evidencing
such Indebtedness.
6.08 Guaranties. The Company shall cause each Material Subsidiary that is
a Wholly-Owned Subsidiary to execute and deliver a Guaranty to the Agent (for
the benefit of the Agent and the Lenders).
6.09 Compliance with Laws. The Company shall comply, and shall cause each
Subsidiary to comply, in all material respects with all Requirements of Law of
any Governmental Authority having jurisdiction over it or its business
(including the Federal Fair Labor Standards Act), except such as may be
contested in good faith or as to which a bona fide dispute may exist.
6.10 Compliance with ERISA. The Company shall, and shall cause each of
its ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law; (b) cause each Plan which is qualified under Section 401(a) of the
Code to maintain such qualification; and (c) make all required contributions to
any Plan subject to Section 412 of the Code.
6.11 Inspection of Property and Books and Records. The Company shall
maintain and shall cause each Subsidiary to maintain proper books of record and
account, in which full, true
49
and correct entries in conformity with GAAP consistently applied shall be made
of all financial transactions and matters involving the assets and business of
the Company and such Subsidiary. The Company shall permit, and shall cause each
Subsidiary to permit, representatives and independent contractors of the Agent
or any Lender to visit and inspect any of their respective properties, to
examine their respective corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective directors, officers, and independent
public accountants, all at the expense of the Company and at such reasonable
times during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Company; provided, however, when a Default
or Event of Default exists the Agent or any Lender may do any of the foregoing
at the expense of the Company at any time during normal business hours but
without advance notice.
6.12 Environmental Laws. The Company shall, and shall cause each
Subsidiary to, conduct its operations and keep and maintain its property in
compliance with all Environmental Laws, except where non-compliance (if enforced
in accordance with applicable law and determined adversely to the Company or
such Subsidiary) could not, individually or in the aggregate, have a Material
Adverse Effect.
6.13 Use of Proceeds. The Company shall use the proceeds of the Loans:
(a) to finance the Retlaw Transaction including fees and expenses incurred in
connection therewith; and (b) for working capital and other general corporate
purposes not in contravention of any Requirement of Law or of any Loan Document.
6.14 Further Assurances. (a) The Company shall ensure that all written
information, exhibits and reports furnished to the Agent or the Lenders
hereunder or in connection with the transactions contemplated hereby do not and
will not contain any untrue statement of a material fact and do not and will not
omit to state any material fact or any fact necessary to make the statements
contained therein not misleading in light of the circumstances in which made,
and will promptly disclose to the Agent and the Lenders and correct any defect
or error that may be discovered therein or in any Loan Document or in the
execution, acknowledgement or recordation thereof.
(b) Promptly upon request by the Agent or the Majority Lenders, the
Company shall (and shall cause any of its Subsidiaries to) execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-register, any and all
deeds, conveyances, security agreements, mortgages, assignments, estoppel
certificates, financing statements and continuations thereof, termination
statements, notices of assignment, transfers, certificates, assurances and other
instruments, and take such further acts, as the Agent or such Lenders, as the
case may be, may reasonably require from time to time in order (i) to
carry out more effectively the purposes of this Agreement or any other Loan
Document, (ii) to subject to the Liens created by any of the Collateral
Documents any of the properties, rights or interests covered by any of the
Collateral Documents, (iii) to perfect and maintain the validity, effectiveness
and priority of any of the Collateral Documents and the Liens intended to be
created thereby, and (iv) to better assure, convey, grant, assign, transfer,
preserve, protect and confirm to the Agent and Lenders the rights granted or now
or hereafter intended by the Company and the Lenders to be granted to the
Lenders under any Loan Document or under any other document executed in
connection therewith.
6.15 Financial Covenants.
50
(a) Adjusted Leverage Ratio. The Company shall maintain on a
consolidated basis for each period of four consecutive fiscal quarters
ending during the periods set forth below an Adjusted Leverage Ratio of not
more than the amount set forth below opposite such period:
Period Ratio
------ -----
From the date hereof through and 5.75 to 1
including the four consecutive fiscal
quarters ending June 30, 2000
From September 30, 2000 through and 5.50 to 1
including the four consecutive fiscal
quarters ending December 31, 2000
For the four consecutive fiscal
quarters ending March 31, 2001 5.25 to 1
From June 30, 2001 through and 5.00 to 1
including the four consecutive fiscal
quarters ending September 30, 2001
From December 31, 2001 through and 4.50 to 1
including the four consecutive fiscal
quarters ending September 30, 2002
From December 31, 2002 through and 4.00 to 1
including the four consecutive fiscal
quarters ending September 30, 2003
For the four consecutive fiscal 3.50 to 1
quarters ending December 31, 2003 and
thereafter
(b) Interest Coverage Ratio. The Company shall maintain on a
consolidated basis for each period of four consecutive fiscal quarters, an
Interest Coverage Ratio of not less than 2.25 to 1. As used herein,
"Interest Coverage Ratio" means, for any period, the ratio of (a) Adjusted
Cash Flow of the Company and its Subsidiaries for such period to (b)
interest expense (including capitalized interest and the interest component
of rentals paid or accrued under capital leases) of the Company and its
Subsidiaries for such period provided, however, that for purposes of this
subsection and subsection 6.15(c), "interest expense" for the four
consecutive fiscal quarters ending on September 30, 1999, December 31, 1999
and March 31, 2000 shall be calculated in accordance with the following
formula: (i) interest expense for the four quarter period ending on
September 30, 1999, shall be four times the Company's consolidated interest
expense for the quarter ending on September 30, 1999; (ii) interest expense
for the four quarter period ending on December 31, 1999, shall be two times
the Company's consolidated interest expense for the two quarter period
ending on December 31, 1999; and (iii) interest expense for the four
quarter period ending on March 31, 2000, shall be four-thirds (4/3) of the
Company's
51
consolidated interest expense for the three quarter period ending
on March 31, 2000.
(c) Fixed Charge Coverage Ratio. The Company shall maintain on a
consolidated basis for each period of four consecutive fiscal quarters, a
Fixed Charge Coverage Ratio of not less than 1.20 to 1. As used herein,
"Fixed Charge Coverage Ratio" means, for any period, the ratio of (a)
Adjusted Cash Flow of the Company and its Subsidiaries for such period
minus expenditures made by the Company or any Subsidiary during such period
to repair, renew or replace its property where the failure to do so could
reasonably be expected to have a Material Adverse Effect to (b) cash
interest expense (including the interest component of rentals paid under
capital leases) of the Company and its Subsidiaries for such period plus
all scheduled payments of principal in respect of Indebtedness for borrowed
money (other than the Revolving Loans and Demand Loans) required to be made
by the Company and its Subsidiaries during such period. For purposes of
this subsection, "expenditures made by the Company or any Subsidiary during
such period to repair, renew or replace its property" shall for any period
of four consecutive fiscal quarters ending September 30, 1999, December 31,
1999 or March 31, 2000, mean and include for that portion of such four
quarter period that precedes the Closing Date, all such expenditures made
by Retlaw and its Subsidiaries in respect of the assets acquired by the
Company as part of the Retlaw Transaction.
6.16 Swap Contracts. On or before a date sixty (60) days after the
Closing Date, the Company shall enter into one or more Swap Contracts each with
the Maturity Date as the final scheduled payment date. At all times thereafter,
the Company shall maintain Swap Contracts that, in the aggregate, cover not less
than fifty percent (50%) of the then outstanding aggregate Term Loans.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, unless the Majority Lenders
waive compliance in writing:
7.01 Limitation on Liens. The Company shall not, and shall not suffer or
permit any Restricted Subsidiary to, directly or indirectly, make, create,
incur, assume or suffer to exist any Lien upon or with respect to any part of
its property, whether now owned or hereafter acquired, other than the following
("Permitted Liens"):
(a) any Lien (other than a Lien on the Collateral) existing on
property of the Company or any Restricted Subsidiary on the Closing Date and set
forth in Schedule 7.01 securing Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental charges
which are not delinquent or remain payable without penalty, or to the extent
that non-payment thereof is permitted by Section 6.07, provided, however, that
if a notice of lien has been filed or recorded under the Code, the Company
deposits with the Agent for the benefit of the Lenders a bond or other security
satisfactory to the Agent in the amount reasonably required by the
52
Majority Lenders;
(d) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the ordinary course of business
which are not delinquent or remain payable without penalty or which are being
contested in good faith and by appropriate proceedings, which proceedings have
the effect of preventing the forfeiture or sale of the property subject thereto;
(e) Liens (other than any Lien imposed by ERISA and other than on the
Collateral) consisting of pledges or deposits required in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other social security legislation;
(f) Liens (other than Liens on the Collateral) on the property of the
Company or any Restricted Subsidiary securing (i) the non-delinquent performance
of bids, trade contracts (other than for borrowed money), operating leases,
statutory obligations, (ii) contingent obligations on surety and appeal bonds,
and (iii) other non-delinquent obligations of a like nature; in each case,
incurred in the ordinary course of business, provided all such Liens in the
aggregate would not (even if enforced) cause a Material Adverse Effect;
(g) Liens (other than Liens on the Collateral) consisting of judgment
or judicial attachment liens, provided that the enforcement of such Liens is
effectively stayed and all such liens in the aggregate at any time outstanding
for the Company and its Subsidiaries do not exceed Ten Million Dollars
($10,000,000);
(h) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the businesses of the Company and its Subsidiaries;
(i) Liens on assets of corporations which become Restricted
Subsidiaries after the date of this Agreement, provided, however, that such
Liens existed at the time the respective corporations became Restricted
Subsidiaries and were not created in anticipation thereof and any subsequent
Lien replacing any such Lien provided that (i) such replacement Lien shall not
be extended to any other property of the Company or any Subsidiary other than
the property covered by the original Lien, (ii) the amount of the Indebtedness
secured by such replacement Lien is not increased, and (iii) the Indebtedness
secured by such replacement Lien shall not exceed 100% of the fair market value
of the related property;
(j) purchase money security interests on any property acquired or
held by the Company or any Restricted Subsidiary in the ordinary course of
business, securing Indebtedness incurred or assumed for the purpose of financing
all or any part of the cost of acquiring such property; provided that (i) any
such Lien attaches to such property concurrently with or within forty-five (45)
days after the acquisition thereof, (ii) such Lien attaches solely to the
property so acquired in such transaction and (iii) the principal amount of the
debt secured thereby does not exceed 100% of the cost of such property;
(k) Liens securing obligations in respect of capital leases on assets
subject to such leases, provided that such capital leases are otherwise
permitted hereunder;
53
(l) Liens on the real property of ▇▇▇▇▇▇ Properties Inc. that secure
FPI Indebtedness and Liens on the ▇▇▇▇▇▇ Plaza which secure the repayment of the
▇▇▇▇▇▇ Plaza Refinancing Loan;
(m) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution; provided that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Company in excess of those set forth by regulations promulgated by
the FRB, and (ii) such deposit account is not intended by the Company or any
Subsidiary to provide collateral to the depository institution;
(n) Liens consisting of pledges of cash collateral or government
securities not constituting Collateral to secure on a ▇▇▇▇-to-market basis
Permitted Swap Obligations only, provided that (i) the counterparty to any Swap
Contract relating to any such Permitted Swap Obligation is under a similar
requirement to deliver similar collateral from time to time to the Company or
the Subsidiary party thereto on a ▇▇▇▇-to-market basis; and (ii) the aggregate
value of such collateral so pledged by the Company and the Subsidiaries together
in favor of any counterparty does not at any time exceed the greater of Three
Million Dollars ($3,000,000) or the Comparable Amount;
(o) Liens securing Indebtedness that constitutes an extension,
renewal or replacement, in whole or in part, of any Indebtedness secured by
Liens otherwise permitted by this Section 7.01, provided that (i) any such Lien
shall be limited to all or part of the property securing the Indebtedness
extended, renewed or replaced (plus related improvements) and (ii) the amount of
Indebtedness secured by such Lien is not increased;
(p) Liens on assets of any Restricted Subsidiary securing only
Indebtedness owing by such Restricted Subsidiary to the Company; and
(q) Liens not otherwise permitted by this Section 7.01 that secure
Indebtedness in an aggregate amount not exceeding the greater of Ten Million
Dollars ($10,000,000) or the Comparable Amount (determined at the time such Lien
is created), provided, however, that not more than Three Million Dollars
($3,000,000) of the Liens permitted by this subsection (q) may, at any one time
outstanding, be Liens encumbering assets of ▇▇▇▇▇▇ Broadcasting
Inc. or assets used by ▇▇▇▇▇▇ Broadcasting Inc. in the normal course of its
business.
7.02 Disposition of Assets. The Company shall not, and shall not suffer
or permit any Restricted Subsidiary to, directly or indirectly, sell, assign,
lease, convey, transfer or otherwise dispose of (whether in one or a series of
transactions) any property (including accounts and notes receivable, with or
without recourse) or enter into any agreement to do any of the foregoing, except
that the Company and any Restricted Subsidiary may sell, assign, lease, convey,
transfer or otherwise dispose of, or enter into an agreement to sell, assign,
lease, convey, transfer or otherwise dispose of:
(a) inventory, or used, worn-out or surplus equipment, all in the
ordinary course of business;
(b) equipment to the extent that such equipment is exchanged for
credit
54
against the purchase price of similar replacement equipment, or the proceeds of
such sale are reasonably promptly applied to the purchase price of such
replacement equipment;
(c) inventory, equipment or other assets to the Company or any
Subsidiary pursuant to reasonable business requirements, provided that the
aggregate fair market value of all assets disposed of by ▇▇▇▇▇▇ Broadcasting
Inc. under this subsection (c) shall not exceed, in any fiscal year, the greater
of Twenty-five Million Dollars ($25,000,000) or the Comparable Amount;
(d) dispositions consisting of the exchange of assets for assets of
any equivalent value, provided that (i) in each such exchange, the Company or
the Restricted Subsidiary that disposes of assets shall also receive the
exchanged assets; (ii) the assets received in exchange will be used in the Line
of Business of the Company or the Restricted Subsidiary involved in such
exchange; (iii) the assets used in the operation of the television station KOMO
in Seattle, Washington, or the television station KATU in Portland, Oregon may
not be exchanged for any other assets; and (iv) the aggregate fair market value
of all assets disposed of by ▇▇▇▇▇▇ Broadcasting Inc. under this subsection (d)
shall not exceed, in any fiscal year, the greater of Twenty-five Million Dollars
($25,000,000) or the Comparable Amount;
(e) property owned by ▇▇▇▇▇▇ Properties Inc. and located in the
vicinity of Fourth Avenue South and South Atlantic Street in Seattle,
Washington;
(f) property owned by ▇▇▇▇▇▇ Properties Inc. and located at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇;
(g) property owned by ▇▇▇▇▇▇ Properties Inc. and ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇
through a joint venture (commonly known as Tulalip Estates) located in the
vicinity of Marysville, Washington;
(h) a portion of the property owned by ▇▇▇▇▇▇ ▇▇▇▇▇ Inc. and/or
▇▇▇▇▇▇ Properties Inc. and located on Harbor Island in Seattle, Washington,
which is exchanged for other real property in the vicinity to improve railroad
access to the flour milling facilities located on the remainder of such
property;
(i) assets (or any Person whose sole assets are such assets) acquired
by the Company from Retlaw Broadcasting of Fresno L.L.C., Retlaw Broadcasting of
Columbus, L.L.C., and Retlaw Broadcasting of Augusta, L.L.C. as a part of the
Retlaw Transaction;
(j) assets of ▇▇▇▇▇▇ Properties Inc. the disposition of which is not
otherwise permitted by this Section 7.02, provided that the aggregate fair
market value of all such assets so disposed by ▇▇▇▇▇▇ Properties Inc. shall not
exceed, in any fiscal year, the greater of Fifteen Million Dollars ($15,000,000)
or the Comparable Amount; and
(k) assets of the Company and any Restricted Subsidiary the
disposition of which is not otherwise permitted by this Section 7.02 which are
made for fair market value, provided that (i) at the time of any disposition, no
Default or Event of Default shall exist or shall result from such disposition,
(ii) not less than eighty percent (80%) of the aggregate value received from
such disposition shall be paid in cash, and (iii) the aggregate value of all
assets so disposed by the Company and its Subsidiaries, together, shall not
exceed in any fiscal year the greater of Twenty Million Dollars ($20,000,000) or
the Comparable Amount.
55
Nothing in this Section 7.02 is intended to limit or modify in any way the
application of Section 2.07 hereof.
7.03 Consolidations and Mergers. The Company shall not, and shall not
suffer or permit any Restricted Subsidiary to, merge, consolidate with or into,
or convey, transfer, lease or otherwise dispose of (whether in one transaction
or in a series of transactions) all or substantially all of its assets (whether
now owned or hereafter acquired) to or in favor of any Person, except:
(a) any Subsidiary may merge with the Company, provided that the
Company shall be the continuing or surviving corporation, or with any Restricted
Subsidiary, provided that if any transaction shall be between a Subsidiary and
▇▇▇▇▇▇ Broadcasting Inc. or a Wholly-Owned Subsidiary, ▇▇▇▇▇▇ Broadcasting Inc.
or the Wholly-Owned Subsidiary shall be the continuing or surviving corporation
and provided, further, that neither ▇▇▇▇▇▇ Broadcasting Inc., ▇▇▇▇▇▇ ▇▇▇▇▇ Inc.
nor ▇▇▇▇▇▇ Properties Inc. may merge or consolidate with the Company, each other
or any other Material Subsidiary;
(b) any Restricted Subsidiary that is a Wholly-Owned Subsidiary
formed for the express purpose of facilitating a Permitted Acquisition may merge
or consolidate with any one or more Persons to facilitate the consummation of a
Permitted Acquisition; and
(c) any Restricted Subsidiary (other than ▇▇▇▇▇▇ Broadcasting Inc.)
may sell all or substantially all of its assets (upon voluntary liquidation or
otherwise) to the Company or a Wholly-Owned Subsidiary.
7.04 Loans and Investments. The Company shall not purchase or acquire, or
suffer or permit any Restricted Subsidiary to purchase or acquire, or make any
commitment for any such purchase or acquisition of, any capital stock, equity
interest, or any obligations or other securities of, or any interest in, any
Person, or make or commit to make any Acquisitions, or make or commit to make
any extension of credit or capital contribution to or any other investment in,
any Person including any Affiliate of the Company (together, "Investments"),
except for:
(a) Investments held by the Company or any Restricted Subsidiary in
the form of Eligible Investments;
(b) extensions of credit in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods or services in the
ordinary course of business;
(c) extensions of credit by any Subsidiary to any other Subsidiary or
Affiliate, provided that the aggregate net aggregate amount of all such
extensions of credit shall not exceed at any one time outstanding Two Million
Five Hundred Thousand Dollars ($2,500,000);
(d) extensions of credit by any Restricted Subsidiary to the Company;
(e) extensions of credit by the Company to ▇▇▇▇▇▇ Broadcasting Inc.;
(f) extensions of credit by the Company to ▇▇▇▇▇▇ Properties Inc. in
an aggregate principal amount not to exceed at any one time outstanding (i) in
the case of extensions of credit for the purpose of financing construction of
the ▇▇▇▇▇▇ Plaza, an amount equal to the sum of the applicable amount set forth
on Schedule 5.24 plus Eight Million Five
56
Hundred Thirty-five Thousand Seven Hundred Six Dollars ($8,535,706), and (ii) in
the case of extensions of credit not for the purpose of financing construction
of the ▇▇▇▇▇▇ Plaza, an amount equal to the sum of the applicable amount set
forth on Schedule 5.24 plus Five Million Dollars ($5,000,000);
(g) extensions of credit by the Company to ▇▇▇▇▇▇ ▇▇▇▇▇ Inc. in an
aggregate principal amount not to exceed at any one time outstanding the sum of
the applicable amount set forth on Schedule 5.24 plus Twenty Million Dollars
($20,000,000), provided, however, that no extensions of credit shall be
permitted to be made under this Section 7.04(f) during any fiscal quarter of the
Company ending after the Closing Date if during the immediately preceding fiscal
quarter of the Company the EBITDA of ▇▇▇▇▇▇ ▇▇▇▇▇ Inc. was less than a negative
Two Million Dollars (-$2,000,000), provided, further, that no extensions of
credit shall be permitted to be made under this Section 7.04(f) at any time
after the end of any fiscal quarter ending after the Closing Date (including the
immediately preceding or an earlier fiscal quarter) during which the EBITDA of
▇▇▇▇▇▇ ▇▇▇▇▇ Inc. was less than a negative Seven Million Five Hundred Thousand
Dollars (-$7,500,000);
(h) extensions of credit by the Company to Subsidiaries other than
▇▇▇▇▇▇ Broadcasting Inc., ▇▇▇▇▇▇ Properties Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇ Inc. in an
aggregate principal amount for all such Subsidiaries not to exceed at any one
time outstanding (A) Two Million Five Hundred Thousand Dollars ($2,500,000)
during the period commencing on the Closing Date and ending on June 30, 2000,
and (B) Five Million Dollars ($5,000,000) at any time thereafter;
(i) purchase of fifty percent (50%) of the capital stock of Southwest
Oregon Television Broadcasting Corporation in connection with the Retlaw
Transaction;
(j) Investments incurred in order to consummate Permitted
Acquisitions, provided that (i) for Permitted Acquisitions paid for by means
other than equity interests of the Company (A) the book value (as to the
purchaser) of any such Permitted Acquisition shall not exceed the greater of
Fifteen Million Dollars ($15,000,000) or the Comparable Amount for any single
Acquisition or series of related Acquisitions, and (B) the aggregate amounts
paid to consummate one or more Permitted Acquisitions in any fiscal year, shall
not exceed the greater of Twenty-five Million Dollars ($25,000,000) or the
Comparable Amount and (ii) for Permitted Acquisitions paid for with equity
interests of the Company during the period commencing on the Closing Date and
ending two (2) years thereafter, the aggregate amounts paid to consummate one or
more Permitted Acquisitions in any fiscal year, shall not exceed the greater of
Twenty-five Million Dollars ($25,000,000) or the Comparable Amount;
(k) a capital contribution to ▇▇▇▇▇▇ ▇▇▇▇▇ Inc. in the amount of
Nineteen Million Dollars ($19,000,000) to facilitate the acquisition by ▇▇▇▇▇▇
▇▇▇▇▇ Inc. of the fifty percent (50%) membership interest in ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
L.L.C. currently owned by ▇▇▇▇ Agriculture Inc.;
(l) purchases of equity interests in and the making of capital
contributions to, Subsidiaries (other than ▇▇▇▇▇▇ ▇▇▇▇▇ Inc. during the period
commencing on the Closing Date and ending two (2) years thereafter) and Joint
Ventures (where such purchases and capital contributions do not result in a
Permitted Acquisition), provided that the purchase price paid or required to be
paid and the capital contribution made or required to be made for all
Investments under this Section 7.04(l) does not exceed the greater of Five
Million Dollars ($5,000,000) or the Comparable Amount during any one fiscal
year;
57
(m) Subject to Sections 2.07(c) and 2.07(d), Investments acquired in
exchange for or out of the cash proceeds of the substantially concurrent sale of
new common or preferred equity of the Company or any Subsidiary;
(n) Investments constituting Permitted Swap Obligations or payments
or advances under Swap Contracts relating to Permitted Swap Obligations; and
(o) Investments in any Person not otherwise permitted by this Section
7.04 provided that (i) the aggregate amount of all such Investments shall not
exceed at any one time outstanding the greater of Fifteen Million Dollars
($15,000,000) or the Comparable Amount and (ii) during the period commencing on
the Closing Date and ending two (2) years thereafter, the Company may not make
Investments in or to any Subsidiary except as expressly permitted pursuant to
Sections 7.04(e), (f), (g), (h), (k) and (l) above.
7.05 Limitation on Indebtedness. The Company shall not, and shall not
suffer or permit any Restricted Subsidiary to, create, incur, assume, suffer to
exist, or otherwise become or remain directly or indirectly liable with respect
to, any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness consisting of Contingent Obligations permitted
pursuant to Section 7.08;
(c) Indebtedness existing on or after the Closing Date to the extent
incurred under the credit facilities set forth in Schedule 7.05, and extensions,
renewals and refinancings of such Indebtedness (without increase in the
principal amount);
(d) the Demand Loans, provided that the aggregate amount of all
Demand Loans shall not exceed Six Million Two Hundred Thousand Dollars
($6,200,000) at any one time outstanding;
(e) Indebtedness secured by Liens permitted by subsections 7.01(i),
(j) or (n) not to exceed at any one time outstanding the greater of Ten Million
Dollars ($10,000,000) or the Comparable Amount;
(f) the FPI Indebtedness;
(g) the ▇▇▇▇▇▇ Plaza Refinancing Loan;
(h) intercompany Indebtedness expressly permitted by the terms of
Section 7.04;
(i) Indebtedness incurred in connection with leases permitted
pursuant to Section 7.10;
(j) Indebtedness of the Company or any Restricted Subsidiary (other
than ▇▇▇▇▇▇ Broadcasting Inc.) with respect to which the Company or such
Restricted Subsidiary and the party to whom the Indebtedness is owed have
executed and delivered a subordination agreement in favor of the Agent and the
Lenders in form and substance satisfactory to the Majority Lenders; and
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(k) Indebtedness not otherwise permitted by this Section 7.05
provided that the aggregate amount of all such Indebtedness shall not exceed at
any one time outstanding the greater of Five Million Dollars ($5,000,000) or the
Comparable Amount.
7.06 Transactions with Affiliates. The Company shall not, and shall not
suffer or permit any Subsidiary to, enter into any transaction with any
Affiliate of the Company, except upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than it would obtain in a comparable
arm's-length transaction with a Person not an Affiliate of the Company or such
Subsidiary, provided, however, that the Company or any Subsidiary may provide
reasonable services to any other Affiliate in exchange for smaller compensation
(including no compensation) to the Company or such Subsidiary than the Company
or such Subsidiary would receive were it to perform comparable services in an
arm's-length transaction for a Person not an Affiliate of the Company, provided,
further, that the Company may enter into any transaction with ▇▇▇▇▇▇
Broadcasting Inc. under terms that the Company deems reasonable under the
circumstances provided that the aggregate difference between (i) the actual
compensation to the Company in such transactions and (ii) the compensation that
it would obtain in comparable arm's-length transactions with a Person not an
Affiliate of the Company shall not exceed, in any fiscal year, Twenty-five
Million Dollars ($25,000,000), provided, further, that ▇▇▇▇▇▇ ▇▇▇▇▇ Inc. may
sell flour to ▇▇▇ ▇▇▇▇▇ Flour Company, Inc. at prices that are less favorable to
▇▇▇▇▇▇ ▇▇▇▇▇ Inc. than it would obtain in a comparable arm's-length transaction.
7.07 Use of Proceeds. (a) The Company shall not, and shall not suffer or
permit any Subsidiary to, use any portion of the Loan proceeds, directly or
indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or otherwise
refinance indebtedness of the Company or others incurred to purchase or carry
Margin Stock, (iii) to extend credit for the purpose of purchasing or carrying
any Margin Stock, or (iv) to acquire any security in any transaction that is
subject to Section 13 or 14 of the Exchange Act.
(b) The Company shall not, and shall not suffer or permit any
Restricted Subsidiary to, use any portion of the Loan proceeds, directly or
indirectly to enter into or consummate any Acquisition other than Permitted
Acquisitions and the Acquisitions contemplated by the Retlaw Transaction.
(c) The Company shall not, directly or indirectly, use any portion of
the Loan proceeds (i) knowingly to purchase Ineligible Securities from the Lead
Arranger and Sole Book Manager during any period in which the Lead Arranger and
Sole Book Manager makes a market in such Ineligible Securities, (ii) knowingly
to purchase during the underwriting or placement period Ineligible Securities
being underwritten or privately placed by the Lead Arranger and Sole Book
Manager, or (iii) to make payments of principal or interest on Ineligible
Securities underwritten or privately placed by the Lead Arranger and Sole Book
Manager and issued by or for the benefit of the Company or any Affiliate of the
Company.
7.08 Contingent Obligations. The Company shall not, and shall not suffer
or permit any Restricted Subsidiary to, create, incur, assume or suffer to exist
any Contingent Obligations except:
(a) endorsements for collection or deposit in the ordinary course of
business;
(b) Permitted Swap Obligations;
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(c) Contingent Obligations of the Company and the Restricted
Subsidiaries existing as of the Closing Date and listed in Schedule 7.08;
(d) Contingent Obligations with respect to Surety Instruments
incurred in the ordinary course of business not to exceed at any one time
outstanding the greater of One Million Dollars ($1,000,000) or the Comparable
Amount; and
(e) Contingent Obligations not otherwise permitted by this Section
7.08 provided that the aggregate amount of all such Contingent Obligations shall
not exceed at any one time outstanding the greater of Five Million Dollars
($5,000,000) or the Comparable Amount.
7.09 Joint Ventures. The Company shall not, and shall not suffer or
permit any Subsidiary to enter into any Joint Venture, other than in the Line of
Business of the Company or the Subsidiary entering into such Joint Venture,
provided, however, that neither the Company or any Subsidiary may enter into any
Joint Venture if such entry would violate any other term or condition of this
Agreement.
7.10 Lease Obligations. The Company shall not, and shall not suffer or
permit any Restricted Subsidiary to, create or suffer to exist any obligations
for the payment of rent for any property under lease or agreement to lease,
except for:
(a) leases of the Company and of Restricted Subsidiaries in existence
on the Closing Date where the aggregate annual lease payments are less than One
Hundred Thousand Dollars ($100,000) and any renewal, extension or refinancing
thereof;
(b) leases of the Company and of Restricted Subsidiaries in existence
on the Closing Date where the aggregate annual lease payments are equal to or
greater than One Hundred Thousand Dollars ($100,000) and where such leases are
identified in Schedule 7.10, and any renewal, extension of refinancing thereof;
(c) operating leases entered into by the Company or any Restricted
Subsidiary after the Closing Date in the ordinary course of business;
(d) capital leases other than those permitted under clauses (a) and
(c) of this Section, entered into by the Company or any Restricted Subsidiary
after the Closing Date to finance the acquisition of equipment; provided that
the aggregate annual rental payments for all such capital leases shall not
exceed in any fiscal year the greater of Three Million Dollars ($3,000,000) or
the Comparable Amount.
7.11 Restricted Payments.
(a) ▇▇▇▇▇▇ Broadcasting. The Company shall not suffer or permit
▇▇▇▇▇▇ Broadcasting Inc. to, declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations or securities on
account of any shares of any class of its capital stock, or purchase, redeem or
otherwise acquire for value any shares of its capital stock or any warrants,
rights or options to acquire such shares, now or hereafter outstanding; except
that the Company may suffer or permit ▇▇▇▇▇▇ Broadcasting Inc. to:
(i) declare and make dividend payments payable solely in cash;
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(ii) distribute the capital stock of any Subsidiary that is not
a Material Subsidiary solely to the Company; and
(iii) purchase, redeem or otherwise acquire for value any shares
of any class of its capital stock not owned by the Company.
(b) Company and Restricted Subsidiaries. The Company shall not, and
shall not suffer or permit any Restricted Subsidiary (other than ▇▇▇▇▇▇
Broadcasting Inc. or a Wholly-Owned Subsidiary) to, declare or make any dividend
payment or other distribution of assets, properties, cash, rights, obligations
or securities on account of any shares of any class of its capital stock, or
purchase, redeem or otherwise acquire for value any shares of its capital stock
or any warrants, rights or options to acquire such shares, now or hereafter
outstanding; except that the Company may:
(i) declare and make dividend payments or other distributions
payable solely in its common stock;
(ii) purchase, redeem or otherwise acquire shares of its capital
stock or warrants or options to acquire any such shares with the proceeds
received from the substantially concurrent issue of new shares of its
common stock; and
(iii) declare or pay cash dividends to its stockholders during
any fiscal year solely out of fifty percent (50%) of the sum of (A) the net
income of the Company for such fiscal year plus (B) for the fiscal years
ending December 31, 2000 and December 31, 2001 only, an additional amount
equal to the product of (1) the lesser of (x) the actual amount of the
goodwill acquired by the Company as part of the Retlaw Transaction that was
amortized and deducted from the Company's revenue in computing net income
for such fiscal year and (y) the maximum amount of the goodwill acquired by
the Company as part of the Retlaw Transaction that, in accordance with
GAAP, could be amortized and deducted from the Company's revenue in
computing net income for such fiscal year, and (2) one (1.00) minus the
Income Tax Rate of the Company for such fiscal year, provided, that,
immediately after paying such cash dividends, no Default or Event of
Default would exist.
7.12 Capital Expenditures. The Company shall not, and shall not permit
any Restricted Subsidiary to make or commit to make during any fiscal year shown
in the following table any Net Capital Expenditures if such Net Capital
Expenditures when taken together with all prior Net Capital Expenditures made by
the Company and the Restricted Subsidiaries during such fiscal year would exceed
in the aggregate the amounts set forth in the following table:
Fiscal Year Ending Amount
------------------ ------
December 31, 1999 $20,000,000
December 31, 2000 $30,000,000
December 31, 2001 $25,000,000
and each fiscal year
ending thereafter
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As used herein, "Net Capital Expenditures" means all Capital Expenditures other
than (i) expenditures made by the Company as part of the Retlaw Transaction and
(ii) expenditures for Permitted Acquisitions. Notwithstanding the foregoing to
the contrary, the Company and its Subsidiaries shall be permitted to make
additional expenditures solely for the construction of the ▇▇▇▇▇▇ Plaza in the
aggregate amount of Eighty-five Million Dollars ($85,000,000) during the fiscal
years ending December 31, 1999 and December 31, 2000.
7.13 ERISA. The Company shall not, and shall not suffer or permit any of
its ERISA Affiliates to: (a) engage in a prohibited transaction or violation of
the fiduciary responsibility rules with respect to any Plan which has resulted
or could reasonably expected to result in liability of the Company in an
aggregate amount in excess of the greater of Three Million Dollars ($3,000,000)
or the Comparable Amount; or (b) engage in a transaction that could be subject
to Section 4069 or 4212(c) of ERISA.
7.14 Change in Business. The Company shall not, and shall not suffer or
permit any Restricted Subsidiary to, engage in any material line of business
substantially different from the Line of Business of the Company or such
Restricted Subsidiary. The Company shall not, and shall not suffer or permit
any Subsidiary to change its Line of Business.
7.15 Accounting Changes. The Company shall not, and shall not suffer or
permit any Subsidiary to, make any significant change in accounting treatment or
reporting practices, except as required by GAAP, or change the fiscal year of
the Company or of any Subsidiary.
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Event of Default. Any of the following shall constitute an "Event of
Default":
(a) Non-Payment. The Company fails to make, (i) when and as required
to be made herein, payments of any amount of principal of any Loan, or (ii) when
and as required to be paid under any Specified Swap Contract, any payment or
transfer under such Specified Swap Contract, or (iii) within three (3) days
after the same becomes due, payment of any interest, fee or any other amount
payable hereunder or under any other Loan Document (other than a Specified Swap
Contract); or
(b) Representation or Warranty. Any representation or warranty by the
Company or any Subsidiary made or deemed made herein, in any other Loan Document
other than a Specified Swap Contract, or which is contained in any certificate,
document or financial or other statement by the Company, any Subsidiary, or any
Responsible Officer, furnished at any time under this Agreement, or in or under
any other Loan Document other than a Specified Swap Contract, is incorrect in
any material respect on or as of the date made or deemed made; or
(c) Specific Defaults. The Company fails to perform or observe any
term, covenant or agreement contained in any of Sections 6.01, 6.02, 6.03, 6.08,
6.10, 6.15 or 6.16 or in Article VII other than Sections 7.03, 7.06, 7.11 and
7.12 thereof; or
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(d) Other Defaults. The Company fails to perform or observe any
other term or covenant contained in this Agreement or any other Loan Document
other than a Specified Swap Contract, and such default shall continue unremedied
for a period of twenty (20) days after the earlier of (i) the date upon which a
Responsible Officer knew or reasonably should have known of such failure or (ii)
the date upon which written notice thereof is given to the Company by the Agent
or any Lender; or
(e) Cross-Default. (i) The Company or any Subsidiary (A) fails to
make any payment in respect of any Indebtedness or Contingent Obligation (other
than in respect of Swap Contracts), having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing to
all creditors under any combined or syndicated credit arrangement) of more than
Three Million Dollars ($3,000,000) when due (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise) and such failure
continues after the applicable grace or notice period, if any, specified in the
relevant document on the date of such failure; or (B) fails to perform or
observe any other condition or covenant, or any other event shall occur or
condition exist, under any agreement or instrument relating to any such
Indebtedness or Contingent Obligation, and such failure continues after the
applicable grace or notice period, if any, specified in the relevant document on
the date of such failure if the effect of such failure, event or condition is to
cause, or to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause such Indebtedness to
be declared to be due and payable prior to its stated maturity, or such
Contingent Obligation to become payable or cash collateral in respect thereof to
be demanded; or (ii) there occurs under any Swap Contract an Early Termination
Date (as defined in such Swap Contract) resulting from (1) any event of default
under such Swap Contract as to which the Company or any Subsidiary is the
Defaulting Party (as defined in such Swap Contract) or (2) any Termination Event
(as so defined) as to which the Company or any Subsidiary is an Affected Party
(as so defined), and, in either event, the Swap Termination Value owed by the
Company or such Subsidiary as a result thereof is greater than Three Million
Dollars ($3,000,000).
(f) Insolvency; Voluntary Proceedings. The Company or any Material
Subsidiary (i) ceases or fails to be solvent, or generally fails to pay, or
admits in writing its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or otherwise; (ii)
voluntarily ceases to conduct its business in the ordinary course; (iii)
commences any Insolvency Proceeding with respect to itself; or (iv) takes any
action to effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Company or any Material Subsidiary,
or any writ, judgment, warrant of attachment, execution or similar process, is
issued or levied against a substantial part of the Company's or any Material
Subsidiary's properties, and any such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded within sixty (60) days
after commencement, filing or levy; (ii) the Company or any Material Subsidiary
admits the material allegations of a petition against it in any Insolvency
Proceeding, or an order for relief (or similar order under non-U.S. law) is
ordered in any Insolvency Proceeding; or (iii) the Company or any Material
Subsidiary acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its property or business;
or
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(h) ERISA. (i) An ERISA Event shall occur with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be expected to
result in liability of the Company under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of $3,000,000;
or (ii) the aggregate amount of Unfunded Pension Liability among all Pension
Plans at any time exceeds $3,000,000; or (iii) the Company or any ERISA
Affiliate shall fail to pay when due, after the expiration of any applicable
grace period, any installment payment with respect to its withdrawal liability
under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in
excess of $3,000,000; or
(i) Monetary Judgments. One or more non-interlocutory judgments,
non-interlocutory orders, decrees or arbitration awards is entered against the
Company or any Subsidiary involving in the aggregate a liability (to the extent
not covered by independent third-party insurance as to which the insurer does
not dispute coverage) as to any single or related series of transactions,
incidents or conditions, of $3,000,000 or more, and the same shall remain
unsatisfied, unvacated and unstayed pending appeal for a period of thirty (30)
days after the entry thereof; or
(j) Non-Monetary Judgments. Any non-monetary judgment, order or
decree is entered against the Company or any Subsidiary which does or would
reasonably be expected to have a Material Adverse Effect, and there shall be any
period of thirty (30) consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall not be
in effect; or
(k) Change of Control. There occurs any Change of Control; or
(l) Loss of Licenses. The FCC or any other Governmental Authority
revokes or fails to renew any material license, permit or franchise of the
Company or any Subsidiary, or the Company or any Subsidiary for any reason loses
any material license, permit or franchise, or the Company or any Subsidiary
suffers the imposition of any restraining order, escrow, suspension or impound
of funds in connection with any proceeding (judicial or administrative) with
respect to any material license, permit or franchise, except where the
occurrence or non-occurrence of such event could not reasonably be expected to
have a Material Adverse Effect; or
(m) Adverse Change. There occurs a Material Adverse Effect; or
(n) Guaranties. Any Guarantor fails in any material respect to
perform or observe any term, covenant or agreement in the Guaranty to which it
is a party; or any Guaranty is for any reason partially (including with respect
to future advances) or wholly revoked or invalidated, or otherwise ceases to be
in full force and effect, or any Guarantor or any other Person contests in any
manner the validity or enforceability of any Guaranty or any Guarantor denies
that it has any further liability or obligation under the Guaranty to which it
is a party; or any event described at subsections (f) or (g) of this Section
occurs with respect to the Guarantor; or
(o) Year 2000 Concerns. The matters represented and warranted in
Section 5.25 shall cease to be true at any time, (whether or not such
representation was true at all times when made or deemed made hereunder), and as
a result thereof, the Majority Lenders conclude that a Material Adverse Effect
has occurred or that it is reasonably possible that a Material Adverse Effect
will occur as a result of a "Year 2000 problem;" or
64
(p) Collateral.
(i) any material provision of any Collateral Document shall for
any reason cease to be valid and binding on or enforceable against the
Company or any Subsidiary party thereto; or
(ii) the Company or any Subsidiary shall state in writing that
any provision of any Collateral Document is not valid, binding or
enforceable against the party thereto or bring an action to limit its
obligations or liabilities under any provision of any Collateral Document;
or
(iii) any Collateral Document shall for any reason (other than
pursuant to the terms thereof) cease to create a valid security interest in
the Collateral purported to be covered thereby or such security interest
shall for any reason cease to be a perfected and first priority security
interest on the Collateral.
8.02 Remedies. If any Event of Default occurs, the Agent shall, at the
request of, or may, with the consent of, the Majority Lenders,
(a) declare the Commitments of each Lender to be terminated,
whereupon such Commitments shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or applicable
law;
provided, however, that upon the occurrence of any event specified in subsection
(f) or (g) of Section 8.01 (in the case of clause (i) of subsection (g) upon the
expiration of the 60-day period mentioned therein), the Commitments of each
Lender shall automatically terminate and the unpaid principal amount of all
outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable without further act of the Agent or any
Lender.
8.03 Specified Swap Contract Remedies. No provision of this Article VIII
shall impair or otherwise affect any right that a Swap Provider may have under
any Specified Swap Contract, with prior notice to the Agent, but without the
approval or consent of the Agent or the other Lenders, to (a) declare an event
of default, termination event or other similar event thereunder and to create an
Early Termination Date (as defined in such Specified Swap Contract), (b)
determine net termination amounts in accordance with the terms of such Specified
Swap Contracts and to set-off amounts between Specified Swap Contracts, and (c)
prosecute any legal action against the Company to enforce net amounts owing to
such Swap Provider. NOTWITHSTANDING THE FOREGOING, NO SWAP PROVIDER SHALL BE
ENTITLED TO AUTHORIZE OR DIRECT THE AGENT TO TAKE ANY ACTION WITH RESPECT TO THE
COLLATERAL WITHOUT THE PRIOR WRITTEN CONSENT OF ALL LENDERS.
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8.04 Rights Not Exclusive. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
8.05 Certain Financial Covenant Defaults. In the event that, after taking
into account any extraordinary charge to earnings taken or to be taken as of the
end of any fiscal period of the Company (a "Charge"), and if solely by virtue of
such Charge, there would exist an Event of Default due to the breach of any of
Section 6.15 as of such fiscal period end date, such Event of Default shall be
deemed to arise upon the earlier of (a) the date after such fiscal period end
date on which the Company announces publicly it will take, is taking or has
taken such Charge (including an announcement in the form of a statement in a
report filed with the SEC) or, if such announcement is made prior to such fiscal
period end date, the date that is such fiscal period end date, and (b) the date
the Company delivers to the Agent its audited annual or unaudited quarterly
financial statements in respect of such fiscal period reflecting such Charge as
taken.
ARTICLE IX
THE AGENT
9.01 Appointment and Authorization; "Agent". Each Lender hereby
irrevocably (subject to Section 9.09) appoints, designates and authorizes the
Agent to take such action on its behalf under the provisions of this Agreement
and each other Loan Document other than documents evidencing Specified Swap
Contracts and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary contained elsewhere in this Agreement or in any
other Loan Document, the Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall the Agent have or be deemed
to have any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Agent. Without limiting the generality of the foregoing sentence, the use of
the term "agent" in this Agreement with reference to the Agent is not intended
to connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable law. Instead, such term is used merely as a
matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties.
9.02 Delegation of Duties. The Agent may execute any of its duties under
this Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
9.03 Liability of Agent. None of the Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct),
or (ii) be responsible in any manner to any of the Lenders for any recital,
statement, representation or warranty made by the Company or any Subsidiary or
Affiliate of the Company, or any officer thereof, contained in this Agreement or
in any other
66
Loan Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agent under or in connection
with, this Agreement or any other Loan Document, or for the value of or title to
any Collateral, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
the Company or any other party to any Loan Document to perform its obligations
hereunder or thereunder. No Agent-Related Person shall be under any obligation
to any Lender to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of the
Company or any of the Company's Subsidiaries or Affiliates.
9.04 Reliance by Agent. (a) The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to the Company), independent accountants and other experts selected by the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
The Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Loan Document in accordance with a
request or consent of the Majority Lenders and such request and any action taken
or failure to act pursuant thereto shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Lender that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Agent to such Lender for consent,
approval, acceptance or satisfaction, or required thereunder to be consented to
or approved by or acceptable or satisfactory to the Lender.
9.05 Notice of Default. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to the Agent for the account of the Lenders, unless the Agent shall have
received written notice from a Lender or the Company referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default." The Agent will notify the Lenders of its
receipt of any such notice. The Agent shall take such action with respect to
such Default or Event of Default as may be requested by the Majority Lenders in
accordance with Article VIII; provided, however, that unless and until the Agent
has received any such request, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable or in the best interest
of the Lenders.
9.06 Credit Decision. Each Lender acknowledges that none of the Agent-
Related Persons has made any representation or warranty to it, and that no act
by the Agent hereinafter taken, including any review of the affairs of the
Company and its Subsidiaries, shall be deemed to constitute any representation
or warranty by any Agent-Related Person to any Lender. Each Lender represents
to the Agent that it has, independently and without reliance upon any Agent-
Related Person and based on such documents and information as it has deemed
appropriate,
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made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Company and its Subsidiaries, the value of and title to any Collateral, and all
applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend
credit to the Company hereunder. Each Lender also represents that it will,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Company. Except for notices, reports and other documents
expressly herein required to be furnished to the Lenders by the Agent, the Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of the Company which may come
into the possession of any of the Agent-Related Persons.
9.07 Indemnification of Agent. Whether or not the transactions
contemplated hereby are consummated, the Lenders shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Company and without limiting the obligation of the Company to do so), pro rata,
from and against any and all Indemnified Liabilities; provided, however, that no
Lender shall be liable for the payment to the Agent-Related Persons of any
portion of such Indemnified Liabilities resulting solely from such Person's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Lender shall reimburse the Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs) incurred by the Agent
in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Agent is not
reimbursed for such expenses by or on behalf of the Company. The undertaking in
this Section shall survive the payment of all Obligations hereunder and the
resignation or replacement of the Agent.
9.08 Agent in Individual Capacity. BofA and its Affiliates may make loans
to, issue letters of credit for the account of, accept deposits from, acquire
equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the Company and its
Subsidiaries and Affiliates as though BofA were not the Agent hereunder and
without notice to or consent of the Lenders. The Lenders acknowledge that,
pursuant to such activities, BofA or its Affiliates may receive information
regarding the Company or its Affiliates (including information that may be
subject to confidentiality obligations in favor of the Company or such
Subsidiary) and acknowledge that the Agent shall be under no obligation to
provide such information to them. With respect to its Loans, BofA shall have the
same rights and powers under this Agreement as any other Lender and may exercise
the same as though it were not the Agent, and the terms "Lender" and "Lenders"
include BofA in its individual capacity.
9.09 Successor Agent. The Agent may, and at the request of the Majority
Lenders shall, resign as Agent upon thirty (30) days' notice to the Lenders. If
the Agent resigns under this Agreement, the Majority Lenders shall appoint from
among the Lenders a successor agent for the Lenders. If no successor agent is
appointed prior to the effective date of the resignation of the Agent, the Agent
may appoint, after consulting with the Lenders and the Company, a
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successor agent from among the Lenders. Upon the acceptance of its appointment
as successor agent hereunder, such successor agent shall succeed to all the
rights, powers and duties of the retiring Agent and the term "Agent" shall mean
such successor agent and the retiring Agent's appointment, powers and duties as
Agent shall be terminated. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article IX and Sections 10.04 and 10.05 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement. If no successor agent has accepted
appointment as Agent by the date which is thirty (30) days following a retiring
Agent's notice of resignation, the retiring Agent's resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of the
duties of the Agent hereunder until such time, if any, as the Majority Lenders
appoint a successor agent as provided for above. Any Person into which Agent may
be merged or converted or with which it may be consolidated or any Person
resulting from any merger, conversion or consolidation to which it shall be a
party or any Person to which Agent may sell or transfer all or substantially all
of its agency relationships shall be the successor to Agent without the
execution or filing of any paper or further act, anything herein to the contrary
notwithstanding.
9.10 Withholding Tax. (a) If any Lender is a "foreign corporation,
partnership or trust" within the meaning of the Code and such Lender claims
exemption from, or a reduction of, U.S. withholding tax under Sections 1441 or
1442 of the Code, such Lender agrees with and in favor of the Agent, to deliver
to the Agent:
(i) if such Lender claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, two properly completed
and executed copies of IRS Form 1001 before the payment of any interest in
the first calendar year and before the payment of any interest in each
third succeeding calendar year during which interest may be paid under this
Agreement;
(ii) if such Lender claims that interest paid under this
Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such
Lender, two properly completed and executed copies of IRS Form 4224 before
the payment of any interest is due in the first taxable year of such Lender
and in each succeeding taxable year of such Lender during which interest
may be paid under this Agreement; and
(iii) such other form or forms as may be required under the Code
or other laws of the United States as a condition to exemption from, or
reduction of, United States withholding tax.
Such Lender agrees to promptly notify the Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction.
(b) If any Lender claims exemption from, or reduction of, withholding
tax under a United States tax treaty by providing IRS Form 1001 and such Lender
sells, assigns, grants a participation in, or otherwise transfers all or part of
the Obligations of the Company to such Lender, such Lender agrees to notify the
Agent of the percentage amount in which it is no longer the beneficial owner of
Obligations of the Company to such Lender. To the extent of such percentage
amount, the Agent will treat such Lender's IRS Form 1001 as no longer valid.
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(c) If any Lender claiming exemption from United States withholding
tax by filing IRS Form 4224 with the Agent sells, assigns, grants a
participation in, or otherwise transfers all or part of the Obligations of the
Company to such Lender, such Lender agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed by Sections 1441 and
1442 of the Code.
(d) If any Lender is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest payment to such Lender
an amount equivalent to the applicable withholding tax after taking into account
such reduction. However, if the forms or other documentation required by
subsection (a) of this Section are not delivered to the Agent, then the Agent
may withhold from any interest payment to such Lender not providing such forms
or other documentation an amount equivalent to the applicable withholding tax
imposed by Sections 1441 and 1442 of the Code, without reduction.
(e) If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the
Agent did not properly withhold tax from amounts paid to or for the account of
any Lender (because the appropriate form was not delivered or was not properly
executed, or because such Lender failed to notify the Agent of a change in
circumstances which rendered the exemption from, or reduction of, withholding
tax ineffective, or for any other reason) such Lender shall indemnify the Agent
fully for all amounts paid, directly or indirectly, by the Agent as tax or
otherwise, including penalties and interest, and including any taxes imposed by
any jurisdiction on the amounts payable to the Agent under this Section,
together with all costs and expenses (including Attorney Costs). The obligation
of the Lenders under this subsection shall survive the payment of all
Obligations and the resignation or replacement of the Agent.
9.11 Collateral Matters. (a) The Agent is authorized on behalf of all
the Lenders, without the necessity of any notice to or further consent from the
Lenders, from time to time to take any action with respect to any Collateral or
the Collateral Documents which may be necessary to perfect and maintain
perfected the security interest in and Liens upon the Collateral granted
pursuant to the Collateral Documents.
(b) The Lenders irrevocably authorize the Agent, at its option and in
its discretion, to release any Lien granted to or held by the Agent upon any
Collateral (i) upon termination of the Revolving Commitments and payment in full
of all Loans and all other Obligations known to the Agent and payable under this
Agreement or any other Loan Document; (ii) constituting property sold or to be
sold or disposed of as part of or in connection with any disposition permitted
hereunder; (iii) constituting property in which the Company or any Subsidiary
owned no interest at the time the Lien was granted or at any time thereafter;
(iv) constituting property leased to the Company or any Subsidiary under a lease
which has expired or been terminated in a transaction permitted under this
Agreement or is about to expire and which has not been, and is not intended by
the Company or such Subsidiary to be, renewed or extended; (v) consisting of an
instrument evidencing Indebtedness or other debt instrument, if the indebtedness
evidenced thereby has been paid in full; or (vi) if approved, authorized or
ratified in writing by the Majority Lenders or all the Lenders, as the case may
be, as provided in subsection 10.01(f). Upon request by the Agent at any time,
the Lenders will confirm in writing the Agent's authority to release particular
types or items of Collateral pursuant to this subsection 9.11(b), provided that
the absence of any such confirmation for whatever reason shall not affect the
Agent's rights under this Section 9.11.
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(c) Each Lender agrees with and in favor of each other (which
agreement shall not be for the benefit of the Company or any Subsidiary) that
the Company's obligation to such Lender under this Agreement and the other Loan
Documents is not and shall not be secured by any real property collateral now or
hereafter acquired by such Lender.
9.12 Syndication Agent; Lead Arranger. None of the institutions
identified on the facing page or signature pages of this Agreement as a
"syndication agent" or "lead arranger" shall have any right, power, obligation,
liability, responsibility or duty under this Agreement. Without limiting the
foregoing, none of the institutions so identified as a "syndication agent" or
"lead arranger" shall have or be deemed to have any fiduciary relationship with
any Lender. Each Lender acknowledges that it has not relied, and will not rely,
on any of the institutions so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
ARTICLE X
MISCELLANEOUS
10.01 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by the Company therefrom, shall be effective unless the same shall be
in writing and signed by the Majority Lenders (or by the Agent at the written
request of the Majority Lenders) and the Company and acknowledged by the Agent,
and then any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that
no such waiver, amendment, or consent shall, unless in writing and signed by all
the Lenders and the Company and acknowledged by the Agent, do any of the
following:
(a) increase or extend the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02);
(b) postpone or delay any date fixed by this Agreement or any other
Loan Document for any payment of principal, interest, fees or other amounts due
to the Lenders (or any of them) hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate of interest specified herein
on any Loan, or (subject to clause (ii) below) any fees or other amounts payable
hereunder or under any other Loan Document;
(d) change the percentage of the Revolving Commitments or of the
aggregate unpaid principal amount of the Loans which is required for the Lenders
or any of them to take any action hereunder; or
(e) amend this Section, or Section 2.14, or any provision herein
providing for consent or other action by all Lenders; or
(f) discharge any Guarantor, or release all or substantially all of
the Collateral except as otherwise may be provided in the Collateral Document or
except where the consent of the Majority Lenders only is specifically provided
for;
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and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Majority Lenders or all the
Lenders, as the case may be, affect the rights or duties of the Agent under this
Agreement or any other Loan Document, and (ii) the Fee Letters and documents
evidencing Specified Swap Contracts may be amended, or rights or privileges
thereunder waived, in a writing executed by the parties thereto.
10.02 Notices. (a) All notices, requests, consents, approvals, waivers
and other communications shall be in writing (including, unless the context
expressly otherwise provides, by facsimile transmission, provided that any
matter transmitted by the Company by facsimile (i) shall be immediately
confirmed by a telephone call to the recipient at the number specified on
Schedule 10.02, and (ii) shall be followed promptly by delivery of a hard copy
original thereof) and mailed, faxed or delivered, to the address or facsimile
number specified for notices on Schedule 10.02; or, as directed to the Company
or the Agent, to such other address as shall be designated by such party in a
written notice to the other parties, and as directed to any other party, at such
other address as shall be designated by such party in a written notice to the
Company and the Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if delivered, upon delivery; except that
notices pursuant to Article II or IX to the Agent shall not be effective until
actually received by the Agent.
(c) Any agreement of the Agent and the Lenders herein to receive
certain notices by telephone or facsimile is solely for the convenience and at
the request of the Company. The Agent
and the Lenders shall be entitled to rely on the authority of any Person
purporting to be a Person authorized by the Company to give such notice and the
Agent and the Lenders shall not have any liability to the Company or other
Person on account of any action taken or not taken by the Agent or the Lenders
in reliance upon such telephonic or facsimile notice. The obligation of the
Company to repay the Loans shall not be affected in any way or to any extent by
any failure by the Agent and the Lenders to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Agent and the Lenders of a
confirmation which is at variance with the terms understood by the Agent and the
Lenders to be contained in the telephonic or facsimile notice.
10.03 No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of the Agent or any Lender, any right, remedy, power
or privilege hereunder, shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege.
10.04 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, but subject to the letter agreement between the Company and the
Agent dated June 24, 1999, pay or reimburse BofA (including in its capacity as
Agent) within five (5) Business Days after demand (subject to subsection
4.01(e)) for all costs and expenses incurred by BofA (including in
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its capacity as Agent) in connection with the development, preparation,
delivery, administration and execution of, and any amendment, supplement, waiver
or modification to (in each case, whether or not consummated), this Agreement,
any Loan Document and any other documents prepared in connection herewith or
therewith, and the consummation of the transactions contemplated hereby and
thereby, including reasonable Attorney Costs incurred by BofA (including in its
capacity as Agent) and any Lender with respect thereto; and
(b) pay or reimburse the Agent, the Lead Arranger and Sole Book
Manager and each Lender within five (5) Business Days after demand (subject to
subsection 4.01(e)) for all costs and expenses (including Attorney Costs)
incurred by them in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or any other Loan
Document during the existence of an Event of Default or after acceleration of
the Loans (including in connection with any "workout" or restructuring regarding
the Loans, and including in any Insolvency Proceeding or appellate proceeding);
and
(c) pay or reimburse BofA (including in its capacity as Agent) within
five (5) Business Days after demand (subject to subsection 4.01(e)) for all
appraisal (including the allocated cost of internal appraisal services), audit,
environmental inspection and review (including the allocated cost of such
internal services), search and filing costs, reasonable fees and expenses,
incurred or sustained by BofA (including in its capacity as Agent) in connection
with the matters referred to under subsections (a) and (b) of this Section.
10.05 Company Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Company shall indemnify, defend and
hold the Agent-Related Persons, and each Lender and each of its respective
officers, directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including Attorney Costs) of any kind or
nature whatsoever which may at any time (including at any time following
repayment of the Loans and termination of all Specified Swap Contracts and the
termination, resignation or replacement of the Agent or replacement of any
Lender) be imposed on, incurred by or asserted against any such Person in any
way relating to or arising out of this Agreement or any document contemplated by
or referred to herein, or the transactions contemplated hereby, or any action
taken or omitted by any such Person under or in connection with any of the
foregoing, including with respect to any investigation, litigation or proceeding
(including any Insolvency Proceeding or appellate proceeding) related to or
arising out of this Agreement or the Specified Swap Contracts or the Loans or
the use of the proceeds thereof, whether or not any Indemnified Person is a
party thereto (all the foregoing, collectively, the "Indemnified Liabilities");
provided, that the Company shall have no obligation hereunder to any Indemnified
Person with respect to Indemnified Liabilities resulting solely from the gross
negligence or willful misconduct of such Indemnified Person. The agreements in
this Section shall survive payment of all other Obligations. The obligations in
this Section shall survive payment of all other Obligations. At the election of
any Indemnified Person, the Company shall defend such Indemnified Person using
legal counsel satisfactory to such Indemnified Person in such Person's sole
discretion, at the sole cost and expense of the Company. All amounts owing
under this Section shall be paid within thirty (30) days after demand.
10.06 Marshalling; Payments Set Aside. Neither the Agent nor the Lenders
shall be under any obligation to ▇▇▇▇▇▇▇▇ any assets in favor of the Company or
any other Person or against or
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in payment of any or all of the Obligations. To the extent that the Company
makes a payment to the Agent or the Lenders, or the Agent or the Lenders
exercise their right of set-off, and such payment or the proceeds of such set-
off or any part thereof are subsequently invalidated, declared to be fraudulent
or preferential, set aside or required (including pursuant to any settlement
entered into by the Agent or such Lender in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any Insolvency
Proceeding or otherwise, then (a) to the extent of such recovery the obligation
or part thereof originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not been made or such
set-off had not occurred, and (b) each Lender severally agrees to pay to the
Agent upon demand its pro rata share of any amount so recovered from or repaid
by the Agent.
10.07 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Agent and each Lender.
10.08 Assignments, Participations, etc. (a) Any Lender may, with the
written consent of the Agent, and unless an Event of Default shall have occurred
and be continuing, with the written consent of the Company, at any time assign
and delegate to one or more Eligible Assignees (provided that no written consent
of the Company or the Agent shall be required in connection with any assignment
and delegation by a Lender to an Eligible Assignee that is an Affiliate of such
Lender) (each an "Assignee") all, or any ratable part of all, of the Loans, the
Revolving Commitments and the other rights and obligations of such Lender
hereunder, in a minimum amount of Five Million Dollars ($5,000,000); provided,
however, that no Lender that is a party as of the Date of this Agreement, may
assign or delegate any ratable part of its Loans, Revolving Commitments or other
rights and obligations hereunder if, after giving effect to any such assignment
or delegation, the sum of (i) the then outstanding principal balance of such
Lender's Term Loan plus (ii) such Lender's Revolving Commitment is an amount
greater than zero but less than Ten Million Dollars ($10,000,000); and provided,
further, that the Company and the Agent may continue to deal solely and directly
with such Lender in connection with the interest so assigned to an Assignee
until (i) written notice of such assignment, together with payment instructions,
addresses and related information with respect to the Assignee, shall have been
given to the Company and the Agent by such Lender and the Assignee; (ii) the
assignor Lender and its Assignee shall have delivered to the Company and the
Agent an Assignment and Acceptance in the form of Exhibit E ("Assignment and
Acceptance") together with any Note or Notes subject to such assignment and
(iii) the assignor Lender or Assignee has paid to the Agent a processing fee in
the amount of Three Thousand Five Hundred Dollars ($3,500), and unless an Event
of Default shall have occurred and be continuing, with the written consent of
the Company; and provided, further, that if (i) the assignor Lender or any of
its Affiliates is a Swap Provider with respect to any Specified Swap Contract
and (ii) the assignor Lender shall have assigned all of its interest in the
Loans and the Revolving Commitments to an Assignee, then such assignor Lender
and all of its Affiliates shall cease to be a Swap Provider and all Swap
Contracts entered into by such assignor Lender or any of its Affiliates shall
cease to be Specified Swap Contracts for purposes of this Agreement and the
other Loan Documents; and provided, further, that notwithstanding anything in
this Section 10.08(a) to the contrary, so long as no Event of Default shall have
occurred and be continuing, no Lender may assign all or any portion of its
interests hereunder to any Assignee if, on the date the assignment is to become
effective, a payment made by Agent to such Assignee would be subject to any U.S.
withholding tax. Any consent to assignment required of the Agent or of the
Company pursuant to this Section 10.08
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shall not be unreasonably withheld.
(b) From and after the date that the Agent notifies the assignor
Lender that it has received (and provided its consent with respect to) an
executed Assignment and Acceptance and payment of the above-referenced
processing fee, (i) the Assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, shall have the rights and obligations of a
Lender under the Loan Documents, and (ii) the assignor Lender shall, to the
extent that rights and obligations hereunder and under the other Loan Documents
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations under the Loan Documents.
(c) Within five (5) Business Days after its receipt of notice by the
Agent that it has received an executed Assignment and Acceptance and payment of
the processing fee, (and provided that it consents to such assignment in
accordance with subsection 10.08(a)), the Company shall execute and deliver to
the Agent, new Notes evidencing such Assignee's assigned Loans and Revolving
Commitment and, if the assignor Lender has retained a portion of its Loans and
its Revolving Commitment, replacement Notes in the principal amount of the Loans
retained by the assignor Lender (such Notes to be in exchange for, but not in
payment of, the Notes held by such Lender). Immediately upon each Assignee's
making its processing fee payment under the Assignment and
Acceptance, this Agreement shall be deemed to be amended to the extent, but only
to the extent, necessary to reflect the addition of the Assignee and the
resulting adjustment of the Revolving Commitments arising therefrom. The
Revolving Commitment allocated to each Assignee shall reduce such Revolving
Commitments of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks
or other Persons not Affiliates of the Company (a "Participant") participating
interests in any Loans, the Revolving Commitment of that Lender and the other
interests of that Lender (the "originating Lender") hereunder and under the
other Loan Documents; provided, however, that (i) the originating Lender's
obligations under this Agreement shall remain unchanged, (ii) the originating
Lender shall remain solely responsible for the performance of such obligations,
(iii) the Company and the Agent shall continue to deal solely and directly with
the originating Lender in connection with the originating Lender's rights and
obligations under this Agreement and the other Loan Documents, and (iv) no
Lender shall transfer or grant any participating interest under which the
Participant has rights to approve any amendment to, or any consent or waiver
with respect to, this Agreement or any other Loan Document, except to the extent
such amendment, consent or waiver would require unanimous consent of the Lenders
as described in the first proviso to Section 10.01. In the case of any such
participation, the Participant shall be entitled to the benefit of Sections
3.01, 3.03 and 10.05 as though it were also a Lender hereunder, and if amounts
outstanding under this Agreement are due and unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event of Default,
each Participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Lender
may at any time create a security interest in, or pledge, all or any portion of
its rights under and interest in this Agreement and the Note held by it in favor
of any Federal Reserve Bank in accordance
75
with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and
such Federal Reserve Bank may enforce such pledge or security interest in any
manner permitted under applicable law.
(f) Notwithstanding any provision to the contrary contained elsewhere
in this Agreement, any Lender (a "granting Lender") may from time to time
designate a special purpose funding vehicle (an "SPFV") identified as such in
writing by the granting Lender to the Agent and the Company, the option to fund
all or any part of any Loan that such granting Lender would otherwise be
obligated to fund hereunder; provided, however, that notwithstanding any such
designation, (i) the granting Lender's obligations under this Agreement shall
remain unchanged, and the granting Lender shall remain solely responsible for
the performance of such obligations, including any failure by an SPFV to fund
any Loan, (ii) the Company and the Agent shall continue to deal solely and
directly with the granting Lender and shall deliver all notices, including
borrowing notices, and make all payments, including with respect to any Loan or
part thereof funded by an SPFV, directly and solely to the granting Lender,
(iii) other than the right to receive payment in respect of any Loan or part
thereof funded by an SPFV, no SPFV shall have any rights under the Loan
Documents, including with respect to increased costs, funding losses in excess
of what the granting Lender would have been entitled to if it had funded such
Loan, and (iv) the granting Lender shall not grant an SPFV any rights to approve
any amendment to, or any consent or waiver with respect to, this Agreement or
any other Loan Document. Nothing herein shall constitute a commitment by any
SPFV to make all or any part of any Loan. The making of a Loan or part thereof
by an SPFV hereunder shall utilize the Commitment of the granting Lender to the
same extent, and as if, such Loan or part thereof were made by such granting
Lender. Each party hereto agrees that no SPFV shall be liable for any indemnity
or similar payment obligation under this Agreement or any other Loan Document
(all liability for which shall remain with the granting Lender). In furtherance
of the foregoing, each party hereto agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPFV, it will not institute against, or join any
other person in instituting against, such SPFV any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any State thereof. In addition, notwithstanding anything in this
Section 10.08(f) to the contrary, any SPFV may (i) with notice to, but without
the prior written consent of, the Company and the Agent and without paying any
processing fee therefor, assign all or any portion of its interests in any Loans
to the granting Lender or assign all or any portion of its interests in any Loan
for security purposes to any financial institutions (consented to by the Company
and the Agent) providing liquidity and/or credit support to or for the account
of such SPFV to support the funding or maintenance of Loans and (ii) disclose on
a confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPFV. As this Section 10.08(f) applies
to any particular SPFV, this Section may not be amended without the written
consent of such SPFV.
10.09 Confidentiality. Each Lender agrees to take and to cause its
Affiliates to take normal and reasonable precautions and exercise due care to
maintain the confidentiality of all information identified as "confidential" or
"secret" by the Company and provided to it by the Company or any Subsidiary, or
by the Agent on the Company's or such Subsidiary's behalf, under this Agreement
or any other Loan Document, and neither it nor any of its Affiliates shall use
any such information other than in connection with or in enforcement of this
Agreement and the other Loan Documents or in connection with other business now
or hereafter existing or
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contemplated with the Company or any Subsidiary; except to the extent such
information (i) was or becomes generally available to the public other than as a
result of disclosure by the Lender, or (ii) was or becomes available on a non-
confidential basis from a source other than the Company, provided that such
source is not bound by a confidentiality agreement with the Company known to the
Lender; provided, however, that any Lender may disclose such information (A) at
the request or pursuant to any requirement of any Governmental Authority to
which the Lender is subject or in connection with an examination of such Lender
by any such authority; (B) pursuant to subpoena or other court process; (C) when
required to do so in accordance with the provisions of any applicable
Requirement of Law; (D) to the extent reasonably required in connection with any
litigation or proceeding to which the Agent, any Lender or their respective
Affiliates may be party; (E) to the extent reasonably required in connection
with the exercise of any remedy hereunder or under any other Loan Document; (F)
to such Lender's independent auditors and other professional advisors; (G) to
any Participant or Assignee, actual or potential, provided that such Person
agrees in writing to keep such information confidential to the same extent
required of the Lenders hereunder; (H) as to any Lender or its Affiliate, as
expressly permitted under the terms of any other document or agreement regarding
confidentiality to which the Company or any Subsidiary is party or is deemed
party with such Lender or such Affiliate; and (I) to its Affiliates.
10.10 Set-off. In addition to any rights and remedies of the Lenders
provided by law, if an Event of Default exists or the Loans have been
accelerated, each Lender is authorized at any time and from time to time,
without prior notice to the Company, any such notice being waived by the Company
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held by, and other indebtedness at any time owing by, such Lender to or for the
credit or the account of the Company against any and all Obligations owing to
such Lender, now or hereafter existing, irrespective of whether or not the Agent
or such Lender shall have made demand under this Agreement or any Loan Document
and although such Obligations may be contingent or unmatured. Each Lender agrees
promptly to notify the Company and the Agent after any such set-off and
application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.
10.11 Automatic Debits of Fees. With respect to any commitment fee,
arrangement fee, or other fee, or any other cost or expense (including Attorney
Costs) due and payable to the Agent, BofA or the Lead Arranger and Sole Book
Manager under the Loan Documents, the Company hereby irrevocably authorizes BofA
to debit any deposit account of the Company with BofA in an amount such that the
aggregate amount debited from all such deposit accounts does not exceed such fee
or other cost or expense. If there are insufficient funds in such deposit
accounts to cover the amount of the fee or other cost or expense then due, such
debits will be reversed (in whole or in part, in BofA's sole discretion) and
such amount not debited shall be deemed to be unpaid. No such debit under this
Section shall be deemed a set-off.
10.12 Notification of Addresses, Lending Offices, Etc. Each Lender shall
notify the Agent in writing of any changes in the address to which notices to
the Lender should be directed, of addresses of any Lending Office, of payment
instructions in respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably request.
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10.13 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
10.14 Severability. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
10.15 No Third Parties Benefited. This Agreement is made and entered into
for the sole protection and legal benefit of the Company, the Lenders, the Agent
and the Agent-Related Persons, and their permitted successors and assigns, and
no other Person shall be a direct or indirect legal beneficiary of, or have any
direct or indirect cause of action or claim in connection with, this Agreement
or any of the other Loan Documents.
10.16 Governing Law and Jurisdiction. (a) THIS AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
WASHINGTON; PROVIDED THAT THE COMPANY, THE AGENT AND THE LENDERS SHALL RETAIN
ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ FOR THE WESTERN DISTRICT OF WASHINGTON, AND BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE AGENT AND THE LENDERS
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY, THE AGENT AND THE LENDERS
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT
OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE COMPANY, THE AGENT AND
THE LENDERS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY WASHINGTON LAW.
(c) Nothing contained in this Section shall override any contrary
provision contained in any Specified Swap Contract.
10.17 Waiver of Jury Trial. THE COMPANY, THE LENDERS AND THE AGENT EACH
WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST
ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER
WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY, THE
LENDERS AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF.
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
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RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.18 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the Company,
the Lenders and the Agent, and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof.
10.19 Oral Agreements Not Enforceable.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO
FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER
WASHINGTON LAW.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in Seattle, Washington by their proper and duly
authorized officers as of the day and year first above written.
▇▇▇▇▇▇ COMPANIES INC.
By: /s/
_____________________________
Title: __________________________
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Agent
By: /s/
_____________________________
Title: __________________________
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as a Lender
By: /s/
_____________________________
Title: __________________________
U.S. BANK NATIONAL ASSOCIATION, as a Lender
By: /s/
_____________________________
Title: __________________________
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CREDIT SUISSE FIRST BOSTON, as a Lender
By: /s/
_____________________________
Title: __________________________
By: /s/
_____________________________
Title: __________________________
BANKBOSTON, N.A., as a Lender
By: /s/
_____________________________
Title: __________________________
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/
_____________________________
Title: __________________________
BANK OF MONTREAL, as a Lender
By: /s/
_____________________________
Title: __________________________
KEY CORPORATE CAPITAL INC., as a Lender
By: /s/
_____________________________
Title: __________________________
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THE BANK OF NEW YORK, as a Lender
By: /s/
_____________________________
Title: __________________________
UNION BANK OF CALIFORNIA, N.A., as a Lender
By: /s/
_____________________________
Title: __________________________
THE FUJI BANK, LIMITED,
LOS ANGELES AGENCY, as a Lender
By: /s/
_____________________________
Title: __________________________
CITY NATIONAL BANK, as a Lender
By: /s/
_____________________________
Title: __________________________
CREDIT SUISSE FIRST BOSTON,as Syndication Agent
By: /s/
_____________________________
Title: __________________________
By: /s/
_____________________________
Title: __________________________
81