Exhibit 10.1
FOURTH AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
Dated as of December 29, 2000
among
EMMIS COMMUNICATIONS CORPORATION,
as Borrower
THE LENDERS LISTED ON SCHEDULE I HERETO
-------- -
and
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent,
FLEET NATIONAL BANK
(f/k/a BankBoston, N.A.),
as Documentation Agent,
FIRST UNION NATIONAL BANK,
as Syndication Agent, and
CREDIT SUISSE FIRST BOSTON,
as Co-Documentation Agent
-vii-
TABLE OF CONTENTS
1. DEFINITIONS AND RULES OF INTERPRETATION................1
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1.1. Definitions....................................1
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1.2. Rules of Interpretation........................35
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2. THE REVOLVING CREDIT FACILITY..........................36
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2.1. Commitment to Lend.............................36
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2.2. Commitment Fee.................................36
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2.3. Reduction of Revolving Credit Commitment.......37
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2.4. The Revolving Credit Notes.....................37
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2.5. Interest on Revolving Credit Loans.............37
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2.6. Requests for Revolving Credit Loans............38
-----------------------------------
2.7. Conversion Options.............................38
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2.7.1. Conversion to Different Type of Revolving
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Credit Loan......................................38
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2.7.2. Continuation of Type of Revolving Credit Loan.
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39
2.7.3. Eurodollar Rate Loans...................39
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2.8. Funds for Revolving Credit Loans...............39
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2.8.1. Funding Procedures......................39
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2.8.2. Advances by Administrative Agent........40
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2.9. Settlements....................................40
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2.9.1. General.................................40
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2.9.2. Failure to Make Funds Available.........41
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2.9.3. No Effect on Other Revolving Credit Lenders.
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42
2.10. Repayment Of The Revolving Credit Loans......42
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2.10.1. Maturity...............................42
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2.10.2. Mandatory Repayments of Revolving Credit
-----------------------------------------
Loans............................................42
2.10.3. Optional Repayments of Revolving Credit
----------------------------------------
Loans.42
3. THE TRANCHE A TERM LOAN................................43
-----------------------
3.1. Commitment to Lend.............................43
------------------
3.2. The Tranche A Term Notes.......................43
------------------------
3.3. Mandatory Prepayment of Tranche A Term Loan;
---------------------------------------------
Scheduled Amortization................................44
----------------------
3.4. Optional Prepayment of Tranche A Term Loan.....44
------------------------------------------
3.5. Interest on Tranche A Term Loan................45
-------------------------------
3.5.1. Interest Rates..........................45
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3.5.2. Notification by Borrower................45
------------------------
3.5.3. Amounts, etc............................45
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4. THE TRANCHE B TERM LOAN................................46
-----------------------
4.1. Commitment to Lend.............................46
------------------
4.2. The Tranche B Term Notes.......................46
------------------------
4.3. Mandatory Prepayment of Tranche B Term Loan;
---------------------------------------------
Scheduled Amortization................................46
----------------------
4.4. Optional Prepayment of Tranche B Term Loan.....47
------------------------------------------
4.5. Interest on Tranche B Term Loan................47
-------------------------------
4.5.1. Interest Rates..........................47
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4.5.2. Notification by Borrower................48
------------------------
4.5.3. Amounts, etc............................48
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5. MANDATORY REPAYMENT OF THE LOANS.......................48
--------------------------------
5.1. Excess Cash Flow Recapture.....................49
--------------------------
5.2. Proceeds of Asset Sales and Asset Swaps........49
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5.3. Proceeds of Equity Issuances...................49
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5.4. Proceeds of Subordinated Debt Issuances........50
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5.5. Application of Payments........................50
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5.6. Delivery of Proceeds...........................50
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6. LETTERS OF CREDIT......................................51
-----------------
6.1. Letter of Credit Commitments...................51
----------------------------
6.1.1. Commitment to Issue Letters of Credit...51
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6.1.2. Letter of Credit Applications...........51
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6.1.3. Terms of Letters of Credit..............51
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6.1.4. Reimbursement Obligations of Revolving Credit
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Lenders..........................................52
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6.1.5. Participations of Revolving Credit Lenders.
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52
6.2. Reimbursement Obligation of the Borrower.......52
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6.3. Letter of Credit Payments......................53
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6.4. Obligations Absolute...........................54
--------------------
6.5. Reliance by Issuer.............................54
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6.6. Letter of Credit Fee...........................55
--------------------
7. CERTAIN GENERAL PROVISIONS.............................55
--------------------------
7.1. Closing Fees...................................55
------------
7.2. Administrative Agent's Fee.....................55
--------------------------
7.3. Funds for Payments.............................55
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7.3.1. Payments to Administrative Agent........55
--------------------------------
7.3.2. No Offset, etc..........................55
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7.3.3. Non-U.S. Lenders........................56
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7.4. Computations...................................57
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7.5. Inability to Determine Eurodollar Rate.........58
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7.6. Illegality.....................................58
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7.7. Additional Costs, etc..........................58
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7.8. Capital Adequacy...............................60
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7.9. Certificate....................................60
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7.10. Indemnity.....................................60
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7.11. Interest After Default........................61
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8. COLLATERAL SECURITY AND GUARANTIES.....................62
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8.1. Security of Borrower...........................62
--------------------
8.2. Guaranties and Security of Subsidiaries........62
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8.3. Release of Collateral and Guaranties...........62
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9. REPRESENTATIONS AND WARRANTIES.........................62
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9.1. Corporate Authority............................62
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9.1.1. Incorporation; Good Standing............63
----------------------------
9.1.2. Authorization...........................63
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9.1.3. Enforceability..........................63
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9.2. Governmental Approvals.........................63
----------------------
9.3. Title to Properties............................63
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9.4. Financial Statements and Projections...........64
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9.4.1. Fiscal Year.............................64
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9.4.2. Financial Statements....................64
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9.4.3. Projections.............................64
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9.5. No Material Adverse Changes, etc...............65
--------------------------------
9.6. Franchises, Patents, Copyrights, etc...........65
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9.7. Litigation.....................................65
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9.8. No Materially Adverse Contracts, etc...........65
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9.9. Compliance with Other Instruments, Laws, Status as
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Senior Debt, etc......................................65
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9.10. Tax Status....................................66
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9.11. No Event of Default...........................66
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9.12. Investment Company Acts and Communications Act.66
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9.13. Absence of Financing Statements, etc..........66
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9.14. Perfection of Security Interest...............66
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9.15. Certain Transactions..........................67
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9.16. Employee Benefit Plans........................67
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9.16.1. In General.............................67
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9.16.2. Terminability of Welfare Plans.........67
------------------------------
9.16.3. Guaranteed Pension Plans...............67
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9.16.4. Multiemployer Plans....................68
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9.17. Use of Proceeds...............................68
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9.17.1. General................................68
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9.17.2. Regulations U and X....................68
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9.17.3. Ineligible Securities..................68
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9.18. Environmental Compliance......................69
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9.19. Subsidiaries, etc.............................70
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9.20. Disclosure....................................70
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9.21. Licenses and Approvals........................71
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9.22. Material Agreements...........................72
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9.23. Solvency......................................72
--------
9.24. Excluded Subsidiaries.........................72
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10. AFFIRMATIVE COVENANTS.................................72
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10.1. Punctual Payment..............................72
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10.2. Maintenance of Office. ......................73
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10.3. Records and Accounts..........................73
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10.4. Financial Statements, Certificates and Information.
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73
10.5. Notices.......................................75
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10.5.1. Defaults...............................75
--------
10.5.2. Environmental Events...................75
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10.5.3. Notification of Claim against Collateral.75
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10.5.4. Notice of Litigation and Judgments.....75
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10.6. Legal Existence; Maintenance of Properties....76
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10.7. Insurance.....................................76
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10.8. Taxes.........................................77
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10.9. Inspection of Properties and Books, etc.......77
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10.9.1. General................................77
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10.9.2. Appraisals.............................77
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10.9.3. Communications with Accountants........78
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10.10. Compliance with Laws, Contracts, Licenses, and
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Permits...............................................78
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10.11. Employee Benefit Plans.......................79
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10.12. Use of Proceeds..............................79
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10.13. Additional Collateral........................79
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10.14. Interest Rate Protection.....................79
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10.15. Additional Subsidiaries......................80
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10.16. FCC Licenses.................................80
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10.17. Dissolution of Certain Excluded Subsidiaries.80
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10.18. Delivery of Environmental Reports............81
---------------------------------
10.19. Further Assurances...........................81
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11. CERTAIN NEGATIVE COVENANTS............................81
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11.1. Restrictions on Indebtedness..................81
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11.2. Restrictions on Liens.........................83
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11.3. Restrictions on Investments...................85
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11.4. Restricted Payments...........................86
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11.5. Merger, Consolidation, Acquisition and Disposition
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of Assets.............................................86
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11.5.1. Mergers and Acquisitions...............87
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11.5.2. Disposition of Assets..................89
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11.6. Sale and Leaseback............................90
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11.7. Compliance with Environmental Laws............90
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11.8. Subordinated Debt.............................90
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11.9. Employee Benefit Plans........................90
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11.10. Fiscal Year..................................91
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11.11. Transactions with Affiliates.................91
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11.12. Certain Intercompany Matters.................91
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12. FINANCIAL COVENANTS...................................92
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12.1. Total Leverage Ratio..........................92
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12.2. Senior Leverage Ratio.........................93
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12.3. Interest Coverage Ratio.......................93
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12.4. Pro Forma Fixed Charge Coverage Ratio.........94
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13. CLOSING CONDITIONS....................................94
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13.1. Loan Documents................................94
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13.2. Certified Copies of Governing Documents.......94
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13.3. Corporate or Other Action.....................94
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13.4. Officer's Certificates........................94
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13.5. Validity of Liens.............................94
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13.6. Perfection Certificates, UCC Search Results and
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Survey................................................95
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13.7. Title Insurance...............................95
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13.8. Financial Statements..........................95
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13.9. FCC Licenses; Third Party Consents............95
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13.10. Certificates of Insurance....................96
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13.11. Opinion of Counsel...........................96
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13.12. Compliance Certificate.......................96
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13.13. Senior Debt Certificate......................96
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13.14. Financial Condition..........................96
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13.15. Payment of Fees..............................97
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13.16. Disbursement Instructions....................97
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13.17. Sources and Uses of Cash; Refinancing of Loans.97
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13.18. Administrative Agent Fee Letter..............97
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13.19. Accountant's Letter..........................97
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13.20. Payoff and Termination.......................97
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13.21. Evidence of Merger...........................97
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13.22. Environmental Reports........................97
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14. CONDITIONS TO ALL BORROWINGS..........................98
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14.1. Representations True; No Event of Default.....98
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14.2. No Legal Impediment...........................98
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14.3. Proceedings and Documents.....................98
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15. EVENTS OF DEFAULT; ACCELERATION; ETC..................99
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15.1. Events of Default and Acceleration............99
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15.2. Termination of Commitments....................103
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15.3. Remedies......................................103
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15.4. Distribution of Collateral Proceeds...........104
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16. ADDITIONAL FINANCING..................................104
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16.1.
................................................Commitment
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Amount................................................104
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16.2. ................................................Notes.
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106
17. THE AGENTS............................................106
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17.1. Authorization.................................106
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17.2. Employees and Agents..........................107
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17.3. No Liability..................................107
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17.4. No Representations............................107
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17.4.1. General................................107
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17.4.2. Closing Documentation, etc.............108
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17.5. Payments......................................108
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17.5.1. Payments to Administrative Agent.......108
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17.5.2. Distribution by Administrative Agent...108
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17.5.3. Delinquent Lenders.....................109
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17.6. Holders of Notes..............................109
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17.7. Indemnity.....................................109
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17.8. Agents as Lenders.............................110
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17.9. Resignation...................................110
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17.10. Notification of Defaults and Events of Default.110
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17.11. Duties in the Case of Enforcement............110
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17.12. Syndication Agent, Documentation Agent and
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Co-Documentation Agent................................111
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18. ASSIGNMENT AND PARTICIPATION..........................111
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18.1. Conditions to Assignment by Lenders...........111
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18.2. Certain Representations and Warranties; Limitations;
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Covenants.............................................112
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18.3. Register......................................113
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18.4. New Notes.....................................113
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18.5. Participations................................114
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18.6. Assignee or Participant Affiliated with the
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Borrower.114
18.7. Miscellaneous Assignment Provisions...........115
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18.8. Assignment by Borrower........................115
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19. PROVISIONS OF GENERAL APPLICATIONS....................115
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19.1. Setoff........................................115
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19.2. Expenses......................................116
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19.3. Indemnification...............................117
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19.4. Treatment of Certain Confidential Information.117
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19.4.1. Confidentiality........................118
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19.4.2. Prior Notification.....................118
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19.4.3. Other..................................118
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19.5. Survival of Covenants, Etc....................119
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19.6. Notices.......................................119
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19.7. Governing Law...............................120
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19.8. Headings......................................120
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19.9. Counterparts..................................120
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19.10. Entire Agreement, Etc........................121
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19.11. WAIVER OF JURY TRIAL.........................121
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19.12. Consents, Amendments, Waivers, Etc...........121
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19.13. Severability.................................123
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20. TRANSITIONAL ARRANGEMENTS.............................123
20.1. Existing Credit Agreement Superseded..........123
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20.2. Fees Under Existing Credit Agreement..........123
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21. FCC APPROVAL..........................................124
22. CONSENT TO REORGANIZATION.............................124
Exhibits
Exhibit A Form of Revolving Credit Note
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Exhibit B Form of Loan Request
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Exhibit C Form of Tranche A Term Note
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Exhibit D Form of Tranche B Term Note
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Exhibit E Projections
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Exhibit F Form of Compliance Certificate
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Exhibit G Form of Officer's Certificate
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Exhibit H Form of Instrument of Accession
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Exhibit I Form of Assignment and Acceptance
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Schedules
Schedule 1 Lenders and Commitments
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Schedule 2 Scheduled Transactions
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Schedule 9.3(a) Title to Properties
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Schedule 9.3(b) Stations
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Schedule 9.5 Restricted Payments
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Schedule 9.7 Litigation
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Schedule 9.18 Environmental Compliance
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Schedule 9.19 Subsidiaries Etc.
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Schedule 9.21 FCC Licenses
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Schedule 11.1 Existing Indebtedness
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Schedule 11.2 Existing Liens
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Schedule 11.3 Existing Investments
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Schedule 22 Reorganization Capital Structure
-126-
BUSDOCS:922749.15
BUSDOCS:922749.15
FOURTH AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This FOURTH AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT
is made as of December 29, 2000 by and among (a) EMMIS COMMUNICATIONS
CORPORATION (the "Borrower"), an Indiana corporation having its principal place
of business at One Emmis Plaza, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, (b) the lending institutions listed on Schedule 1 (collectively
together with any institution that becomes a lender pursuant to ss.16 or ss.18,
the "Lenders"), (c) TORONTO DOMINION (TEXAS), INC. as administrative agent for
the Lenders (in such capacity the "Administrative Agent"), (d) First Union
National Bank, as syndication agent for the Lenders (in such capacity, the
"Syndication Agent"), (e) Fleet National Bank (f/k/a BankBoston, N.A.), as
documentation agent for the Lenders (in such capacity, the "Documentation
Agent"), and (f) Credit Suisse First Boston, as co-documentation agent for the
Lenders (in such capacity the "Co-Documentation Agent").
WITNESSETH:
......WHEREAS, pursuant to that certain Third Amended and Restated Revolving
Credit and Term Loan Agreement, dated as of October 2, 2000 (as amended and in
effect from time to time, the "Existing Credit Agreement"), by and among the
Borrower, the lending institutions party thereto (the "Existing Lenders"), the
Administrative Agent, the Documentation Agent and the Syndication Agent, the
Existing Lenders have made available certain financing to the Borrower upon the
terms and conditions contained therein; and
......WHEREAS, the Borrower has requested, among other things, additional
financing and the Lenders are willing to provide such financing on the terms and
conditions set forth herein to replace the Existing Credit Agreement;
NOW THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained herein, the Borrower, the Lenders, the Administrative Agent,
the Documentation Agent, the Syndication Agent and the Co-Documentation Agent
agree that as of the Funding Date (as defined below), the Existing Credit
Agreement shall be amended and restated in its entirety as set forth herein:
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. Definitions. The following terms shall have the meanings set forth in
this ss.1.1 or elsewhere in the provisions of this Credit Agreement referred to
below:
Additional Subordinated Debt. As defined in the definition of
------------------------------
"Subordinated Debt".
------------- ----
Adjustment Date. The second Business Day following the Business
----------------
Day on which a Compliance Certificate is delivered by the Borrower
pursuant toss.10.4(c).
Administrative Agent's Office. The Administrative Agent's head office
located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or at such other
location as the Administrative Agent may designate from time to time.
Administrative Agent. Toronto Dominion (Texas), Inc., acting as
---------------------
administrative agent for the Lenders, or any other Person which has
been appointed as the successor Administrative Agent in accordance with
ss.17.9.
Administrative Agent Fee Letter. The fee letter, dated as of
----------------------------------
December 29, 2000, by and between the Borrower and the Administrative
Agent.
Administrative Agent's Fee. Seess.7.2.
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Administrative Agent's Special Counsel. ▇▇▇▇▇▇▇ ▇▇▇▇ LLP or such
---------------------------------------
other counsel as may be approved by the Administrative Agent.
Affiliate. With respect to the Borrower or any Lender, any Person (other
than a Subsidiary) that would be considered to be an affiliate of the Borrower
or such Lender under Rule 144(a) of the Rules and Regulations of the Securities
and Exchange Commission, as in effect on the date hereof, if the Borrower or
such Lender, as applicable, were issuing securities.
Agents. Collectively, the Administrative Agent, the Syndication
------
Agent, the Documentation Agent and the Co-Documentation Agent.
Applicable Margin. For each period commencing on an Adjustment Date
through the date immediately preceding the next Adjustment Date (each a "Rate
Adjustment Period"), the Applicable Margin for each Type of Loan of each Tranche
shall be the applicable margin set forth below for such Type and Tranche with
respect to the Total Leverage Ratio, as determined for the Reference Period
ending on the fiscal quarter ended immediately prior to the applicable Rate
Adjustment Period.
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Revolving Credit Tranche B Term Loans
Loans & Tranche A
Term Loan
---------------------------------------------------------------
------------------ ----------------------
Total
Leverage Base Eurodollar Base Rate Eurodollar
Level Ratio Rate Rate Loans Loans Rate
Loans Loans
---------------------------------------------------------------
---------------------------------------------------------------
I Greater
than or
equal to 1.375% 2.375% 1.875% 2.875%
7.00:1.00
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---------------------------------------------------------------
II Less than
7.00:1.00
but 1.125% 2.125% 1.875% 2.875%
greater
than or
equal to
6.50:1.00
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---------------------------------------------------------------
III Less than
6.50:1.00
but 0.875% 1.875% 1.875% 2.875%
greater
than or
equal to
6.00:1.00
---------------------------------------------------------------
---------------------------------------------------------------
IV Less than
6.00:1.00
but 0.625% 1.625% 1.875% 2.875%
greater
than or
equal to
5.50:1.00
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---------------------------------------------------------------
V Less than
5.50:1.00
but 0.375% 1.375% 1.875% 2.875%
greater
than or
equal to
5.00:1.00
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---------------------------------------------------------------
VI Less than
5.00:1.00
but 0.125% 1.125% 1.625% 2.625%
greater
than or
equal to
4.50:1.00
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---------------------------------------------------------------
VII Less than
4.50:1.00
0.000% 0.875% 1.625% 2.625%
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Notwithstanding the foregoing, during the period commencing on the Funding
Date through the date which is one hundred eighty (180) days thereafter, the
Applicable Margin for the Revolving Credit Loans and the Tranche A Term Loan
shall be the higher of (i) the Applicable Margin determined as set forth above
by reference to the Total Leverage Ratio or (ii) for Base Rate Loans, 1.125%,
and for Eurodollar Rate Loans, 2.125%. Notwithstanding the foregoing, until the
first anniversary of the Funding Date, the Applicable Margin for the Tranche B
Term Loans which are Base Rate Loans shall be 1.875% and which are Eurodollar
Rate Loans shall be 2.875%. If the Borrower fails to deliver any Compliance
Certificate pursuant to ss.10.4(c), then for the period commencing on the second
Business Day following the date on which the Compliance Certificate was to be
delivered pursuant to ss.10.4(c) through the earlier to occur of (i) the date
immediately following the date on which such Compliance Certificate is delivered
or (ii) the 10th Business Day following such Adjustment Date, the Applicable
Margin shall be the Applicable Margin then in effect, provided that if upon
delivery, such Compliance Certificate shows the Applicable Margin should have
increased during such period, the Applicable Margin will be increased
retroactively to such Adjustment Date. If the Borrower fails to deliver a
Compliance Certificate pursuant to ss.10.4(c) and such Compliance Certificate
has not been delivered on or prior to the 10th Business Day following the day on
which such Compliance Certificate was required to be delivered, then commencing
on the 11th Business Day following the day on which such Compliance Certificate
was required to be delivered, and continuing through the date on which
Compliance Certificate is delivered, then the Applicable Margin shall be the
highest Applicable Margin set forth above.
Applicable Pension Legislation. At any time, any pension or retirement
benefits legislation (be it national, federal, provincial, territorial or
otherwise) then applicable to the Borrower or any of its Subsidiaries.
Asset Sale. Any one or a series of related transactions (other than an
Asset Swap) pursuant to which the Borrower or any of its Subsidiaries conveys,
sells, leases, licenses or otherwise disposes of, directly or indirectly
(including by means of a simultaneous exchange of Stations), any of its
properties, businesses or assets (other than to the Borrower or any wholly-owned
Subsidiary of the Borrower) (including the sale or issuance of Capital Stock of
any Subsidiary other than to the Borrower or any wholly-owned Subsidiary of the
Borrower) whether owned on the date hereof or thereafter acquired.
Asset Swap. Any transfer of assets of the Borrower or any of its
Subsidiaries to any Person other than the Borrower or a wholly-owned Subsidiary
of the Borrower in exchange for assets of such Person if such exchange would
qualify, whether in part or in full, as a like-kind exchange pursuant to ss.1031
of the Code. Nothing in this definition shall require the Borrower or any of its
Subsidiaries to elect that ss.1031 of the Code be applicable to any Asset Swap.
Assignment and Acceptance. Seess.18.1.
-------------------------
Balance Sheet Date. February 29, 2000.
------------------
Base Rate. The higher of (a) the variable annual rate of interest so
designated from time to time by Toronto Dominion in the United States as its
"prime rate" for Dollars, such rate being a reference rate and not necessarily
representing the lowest or best rate being charged to any customer, and (b)
one-half of one percent (0.50%) above the Federal Funds Effective Rate. For the
purposes of this definition, "Federal Funds Effective Rate" shall mean for any
day, the rate per annum equal to the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a Business
Day, the average of the quotations for such day on such transactions received by
the Administrative Agent from three funds brokers of recognized standing
selected by the Administrative Agent. Changes in the Base Rate resulting from
any changes in Toronto Dominion's "prime rate" shall take place immediately
without notice or demand of any kind.
Base Rate Loans. All or any portion of the Revolving Credit Loans, Tranche
A Term Loan and Tranche B Term Loan bearing interest calculated by reference to
the Base Rate.
Borrower. As defined in the preamble hereto.
--------
Borrower Pledge Agreement. The Fourth Amended and Restated Borrower Stock
Pledge Agreement, dated or to be dated as of the date hereof, as the same may be
amended from time to time hereafter, between the Borrower and the Administrative
Agent, in form and substance satisfactory to the Administrative Agent.
Borrower Security Agreement. The Fourth Amended and Restated Borrower
Security Agreement, dated or to be dated as of the date hereof, as the same may
be amended from time to time hereafter, between the Borrower and the
Administrative Agent, in form and substance satisfactory to the Administrative
Agent.
Borrower Trademark Agreement. The Fourth Amended and Restated Borrower
Trademark Collateral Security and Pledge Agreement, dated or to be dated as of
the date hereof, as the same may be amended from time to time hereafter, between
the Borrower and the Administrative Agent, in form and substance satisfactory to
the Administrative Agent.
Business Day. Any day on which banking institutions in Houston, Texas and
New York, New York, are open for the transaction of banking business and, in the
case of Eurodollar Rate Loans, also a day which is a Eurodollar Business Day.
Capital Assets. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises and good will); provided that Capital Assets shall not
include any item customarily charged directly to expense or depreciated over a
useful life of twelve (12) months or less in accordance with GAAP.
Capital Expenditures. Amounts paid or Indebtedness incurred by the
Borrower or any of its Subsidiaries in connection with (i) the purchase or lease
by the Borrower or any of its Subsidiaries of Capital Assets that would be
required to be capitalized and shown on the balance sheet of such Person in
accordance with GAAP or (ii) the lease of any assets by the Borrower or any of
its Subsidiaries as lessee under any Synthetic Lease to the extent that such
assets would have been Capital Assets had the Synthetic Lease been treated for
accounting purposes as a Capitalized Lease.
Capitalized Leases. Leases under which the Borrower or any of its
Subsidiaries is the lessee or obligor, the discounted future rental payment
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with GAAP.
Capital Stock. Any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants, rights or options to purchase any of the foregoing.
CERCLA. Seess.9.18(a).
------
Change of Control. An event or series of events as a consequence of which
(a) the Permitted Holders shall cease to own Capital Stock of the Borrower
having at least thirty-five percent (35%) of the general voting power of the
outstanding Capital Stock of the Borrower, (b) any "person" or "group" (as such
terms are used in Section 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")), excluding any Permitted Holder, shall
become, or obtain rights (whether by means of warrants, options or otherwise) to
become, the "beneficial owner" (as defined in Rule 13(d)-3 and 13(d)-5 under the
Exchange Act), directly or indirectly, of Capital Stock of the Borrower having a
greater percentage of the general voting power of the outstanding voting Capital
Stock than that held by Permitted Holders, (c) the board of directors of the
Borrower shall cease to consist of a majority of Continuing Directors; (d) ▇▇▇▇
▇▇▇▇▇▇▇ shall cease to be the Chairman of the board of directors of the Borrower
and the chief executive officer of the Borrower; provided that no Change of
Control shall be deemed to have occurred if ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ceases to hold such
positions as a consequence of his death or disability and within one hundred
twenty (120) days of such cessation either (i) successor(s) are named to such
positions who have expertise and experience in the broadcasting business and are
otherwise reasonably acceptable to the Initial Agents or (ii) the board of
directors of the Borrower has provided to the Lenders a plan for replacing
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ which is reasonably acceptable to the Initial Agents; or (e) the
Borrower shall (i) cease to own Capital Stock of the Subsidiaries representing
the same percentage of outstanding Capital Stock held by it on the date hereof
unless the disposition of such Capital Stock was permitted hereunder or (ii)
cease to own Capital Stock of the Subsidiaries having the right at all times to
elect a majority of the board of directors of such Subsidiaries unless the
disposition of such Capital Stock was permitted hereunder.
Closing Fee. Seess.7.1.
-----------
Code. The Internal Revenue Code of 1986.
----
Co-Documentation Agent. As defined in the preamble hereto.
----------------------
Collateral. All of the property, rights and interests (other than Excluded
Assets) of the Borrower and its Subsidiaries that are or are intended to be
subject to the Liens created by the Security Documents.
Collateral Assignments of Contracts. Collectively, each collateral
assignment of contracts entered into by the Borrower and/or certain of its
Subsidiaries pursuant to ss.11.5.1.
Commitment. With respect to each Lender, the amount set forth on Schedule
1 hereto as the amount of such Lender's commitment to make Loans in respect of a
particular Tranche to, and to participate in the issuance, extension and renewal
of Letters of Credit for the account of, the Borrower, as the same may be
reduced or increased from time to time in accordance with the terms hereof; or
if such commitment is terminated pursuant to the provisions hereof, zero.
Commitment Fee. Seess.2.2.
--------------
Commitment Percentage. With respect to each Lender and each Tranche, the
respective percentages set forth on Schedule 1 hereto as such Lender's
percentage of such Loans in respect of such Tranche made or to be made by such
Lender as such percentage may be adjusted pursuant to ss.16 or ss.18.
Common Stock. The common stock of the Borrower, par value $.01
-------------
per share.
Communications Act. The Communications Act of 1934, as amended,
-------------------
and the rules and regulations of the FCC thereunder as now or hereafter
in effect.
Compliance Certificate. Seess.10.4(c).
----------------------
Consolidated or consolidated. With reference to any term defined herein,
shall mean that term as applied to the accounts of the Borrower and its
Subsidiaries, consolidated in accordance with GAAP.
Consolidated Current Assets. As of any date, all assets of the Borrower
and its Subsidiaries on a consolidated basis that, in accordance with GAAP, are
properly classified as current assets as of such date, but excluding cash or
cash equivalents.
Consolidated Current Liabilities. As of any date, all liabilities and
other Indebtedness of the Borrower and its Subsidiaries on a consolidated basis
as may be properly classified as current liabilities in accordance with GAAP.
Consolidated Excess Cash Flow. With respect to the Borrower and its
Subsidiaries and any particular fiscal period, an amount equal to (a) the sum of
(i) Consolidated Operating Cash Flow for such fiscal period plus (ii) the change
in Consolidated Working Capital between the first day of such fiscal period and
the last day of such fiscal period, if negative, minus (b) the sum of (i)
Consolidated Total Interest Expense for such fiscal period, (ii) any voluntary
and scheduled repayments of principal on any Indebtedness of the Borrower or any
of its Subsidiaries (other than Revolving Credit Loans which shall be subject to
clause (iii) below) paid or due and payable during such fiscal period, (iii) any
voluntary repayments of principal of the Revolving Credit Loans to the extent
that such repayments were accompanied by permanent reductions in the Total
Revolving Credit Commitment in like amount, (iv) cash payments paid or payable
during such fiscal period on account of Capital Expenditures (other than Capital
Expenditures financed by the incurrence of Indebtedness), (v) cash taxes paid or
payable during such fiscal period, (vi) the change in Consolidated Working
Capital between the first day of such fiscal period and the last day of such
fiscal period, if positive, and (vii) $5,000,000.
Consolidated Net Income (or Deficit). For any period, the consolidated net
income (or deficit) of the Borrower and its Subsidiaries for such period, after
deduction of all expenses, taxes, and other proper charges for such period,
determined in accordance with GAAP, after eliminating therefrom (a) all
extraordinary and/or nonrecurring gains or losses, including, without
limitation, any gains (or losses) from any Asset Sale, (b) non-cash dividends or
non-cash Distributions received from Investments and (c) income and expenses
arising from or in connection with Trades and other non-cash credits to
Consolidated Net Income (or Deficit).
Consolidated Operating Cash Flow. For any period, an amount equal to (a)
the sum of (i) Consolidated Net Income (or Deficit) for such period, plus (ii)
depreciation, amortization (including Programming Amortization Expense) and all
other non-cash charges for such period deducted from Consolidated Net Income (or
Deficit), plus (iii) to the extent deducted in the calculation of Consolidated
Net Income (or Deficit), Consolidated Total Interest Expense and cash taxes paid
or payable for such period by the Borrower and its Subsidiaries on a
consolidated basis, plus (iv) losses actually incurred during such period by the
Borrower and its Subsidiaries in connection with Development Properties in an
aggregate amount not to exceed $5,000,000, less (b) (i) Corporate Overhead for
such period to the extent not deducted in the calculation of Consolidated Net
Income (or Deficit), (ii) all Programming Cash Payments and (iii) cash payments
made with respect to non-cash charges added back in prior periods and otherwise
excluded. For purposes of calculating Consolidated Operating Cash Flow for any
period, any Permitted Acquisition, Asset Sale or Asset Swap (including the
transactions set forth on Schedule 2 hereto (collectively, the "Scheduled
Transactions")) of the Borrower or any of its Subsidiaries which occurred during
such period shall be deemed to have occurred immediately prior to the beginning
of such period and the calculation of Consolidated Operating Cash Flow shall be
adjusted on a Pro Forma Basis in connection therewith.
Consolidated Total Funded Debt. At any time of determination, the sum,
without duplication, of (a) the outstanding principal amount of the Loans and
other Obligations due and payable, plus (b) the outstanding principal amount of
any other Indebtedness for borrowed money owed by the Borrower or any of its
Subsidiaries on a consolidated basis (including, without limitation,
Subordinated Debt), plus (c) to the extent not otherwise included, all
obligations (contingent or otherwise) relating to letters of credit issued for
the account of the Borrower and/or its Subsidiaries, plus (d) to the extent not
otherwise included, all liabilities in respect of Capitalized Leases of the
Borrower and/or its Subsidiaries, on a consolidated basis, plus (e) to the
extent not otherwise included, all purchase money Indebtedness.
Consolidated Total Interest Expense. For any period, the sum, without
duplication, of (a) the aggregate amount of interest required to be paid or
accrued by the Borrower or any of its Subsidiaries during such period on all
Indebtedness of the Borrower or any of its Subsidiaries outstanding during all
or any part of such period, whether such interest was or is required to be
reflected as an item of expense or capitalized (provided that, if such interest
is capitalized, only the portion amortized for such period shall be included as
interest for such period), including, without limitation, payments consisting of
interest in respect of Capitalized Leases, Letter of Credit Fees, commitment
fees payable pursuant to this Credit Agreement and similar fees payable in
connection with other Indebtedness, plus (b) all scheduled monthly fees payable
in connection with LMA Agreements. For purposes of determining the Consolidated
Total Interest Expense for any period, a portion of which falls prior to and
includes the Funding Date, the Consolidated Total Interest Expense for the
portion of such period prior to and including the Funding Date (the "Pro-Forma
Period") shall be determined as if (a) the Consolidated Total Funded Debt
outstanding as of the Funding Date and after giving effect to the funding of the
Loans, the issuance of the Letters of Credit and the application of the proceeds
of the Loans advanced on the Funding Date occurred immediately prior to the
commencement of the Pro-Forma Period, (b) the interest rate payable with respect
to any particular item of Consolidated Total Funded Debt during the Pro-Forma
Period was at all times during the Pro-Forma Period equal to the interest rate
payable on such item of Consolidated Total Funded Debt on and as of the Funding
Date, and any commitment fees and Letter of Credit Fees applicable on the
Funding Date were applicable at all times during the Pro-Forma Period, and (c)
all such interest was payable on a periodic basis throughout the Pro-Forma
Period in a manner consistent with the terms of the instruments governing such
Consolidated Total Funded Debt as of the Funding Date. For purposes of
determining the Consolidated Total Interest Expense for any period, any
Permitted Acquisition or Asset Sale of the Borrower or its Subsidiaries which
occurred during such period as permitted pursuant to ss.11.5 shall be deemed to
have occurred immediately prior to such period, and Consolidated Total Interest
Expense shall be determined as if (i) any Indebtedness incurred in connection
with such Permitted Acquisition or repaid in connection with such Asset Sale was
incurred or repaid, as the case may be, immediately prior to such period and
(ii) the interest rate payable with respect to any increase in Indebtedness in
connection with such Permitted acquisition which was outstanding during all or
any part of such period was at all times equal to the rate of interest payable
with respect to such Indebtedness on the last day of the period for which
Consolidated Total Interest Expense is to be determined or if earlier, the last
day on which such Indebtedness was outstanding.
Consolidated Working Capital. The excess of Consolidated Current
-----------------------------
Assets over Consolidated Current Liabilities.
Continuing Directors. The directors of the Borrower on the Funding Date,
after giving effect to the transactions contemplated hereby, and each other
director of the Borrower, if, in each case, such other director's nomination for
election to the board of directors of the Borrowers is recommended by at least
662/3% of the then Continuing Directors in his or her election by the
shareholders of the Borrower.
Conversion Request. A notice given by the Borrower to the Administrative
Agent of the Borrower's election to convert or continue a Loan in accordance
with ss.2.7, ss.3.5.2 or ss.4.5.2.
Copyright Mortgage. The Third Amended and Restated Memorandum of Grant of
Security Interest in Copyrights, dated or to be dated as of the date hereof, as
the same may be amended from time to time hereafter, made by the Borrower and
each of its Subsidiaries in favor of the Administrative Agent, in form and
substance satisfactory to the Administrative Agent.
Corporate Overhead. For any period, that portion of the cash overhead
expenses of the Borrower and its Subsidiaries on a consolidated basis, for such
period which are not directly allocable to the operations of any of the Stations
and other operating assets of the Borrower and its Subsidiaries, calculated on a
basis consistent with past financial statements of the Borrower, including,
without duplication, the amount of salaries and bonuses paid to the management
of the Borrower.
CPF Letter of Credit. That certain Letter of Credit issued by The Toronto
Dominion Bank for the account of the Borrower and the benefit of the New York
City District Council of Carpenters Pension Fund in the face amount of
$1,086,925.
Credit Agreement. This Fourth Amended and Restated Revolving
-----------------
Credit and Term Loan Agreement, including the Schedules and Exhibits
hereto.
Current Note. Seess.16.2.
------------
Default. Seess.15.1.
-------
Delinquent Lender. Seess.17.5.3.
-----------------
Denver Acquisition Documents. Collectively, (a) the Asset Purchase
Agreement, dated as of September 14, 2000, by and between Salem Communications
Acquisition Corporation and any of its Subsidiaries and the Borrower, (b) the
Local Programming and Marketing Agreement, dated as of September 14, 2000, by
and between Salem Communications Acquisition Corporation and the Borrower, and
(c) all other agreements and documents entered into or delivered pursuant to or
in connection with the Denver Transaction.
Denver Transaction. The acquisition by the Borrower or one or more of its
Subsidiaries from Salem Communications of all or substantially all of the assets
(including all FCC Licenses) used in connection with radio Station KALC-FM in
Denver, Colorado, pursuant to the terms of the Denver Acquisition Documents.
Development Property. Any radio Station which the Borrower designates as a
Development Property in a written notice delivered to the Administrative Agent
and which either (a) is making or has made within the six (6) months preceding
such designation substantial changes in its programming format or (b) has been
acquired within the twelve (12) months preceding such designation; provided that
radio Stations WMLL-FM, Jerseyville, Illinois, KXPK-FM, Evergreen, Colorado,
KMVP-AM, Phoenix, Arizona and WNOU-FM, Indianapolis, Indiana shall be considered
Development Properties as of the date hereof; provided, further, that a radio
Station which has been designated a Development Property shall remain a
Development Property until the earlier to occur of (i) the date the Borrower
notifies the Administrative Agent in writing that such Station is no longer a
Development Property and (ii) the date which is twelve (12) consecutive months
following the date of designation; and provided further that no radio Station
may be re-designated as a Development Property unless twelve (12) consecutive
months have passed since such Station ceased to be a Development Property.
Distribution. The declaration or payment of any dividend on or in respect
of any shares of any class of Capital Stock of the Borrower or any of its
Subsidiaries, other than dividends payable solely in shares of Common Stock of
the Borrower; the purchase, redemption, defeasance, retirement or other
acquisition of any shares of any class of Capital Stock of the Borrower or any
of its Subsidiaries, directly or indirectly through a Subsidiary or otherwise
(including the setting apart of assets for a sinking or other analogous fund to
be used for such purpose); the return of capital by the Borrower or its
Subsidiaries to its shareholders as such; or any other distribution on or in
respect of any shares of any class of Capital Stock of the Borrower or its
Subsidiaries.
Documentation Agent. As defined in the preamble hereto.
-------------------
Dollars or $. Dollars in lawful currency of the United States of America.
Domestic Lending Office. Initially, the office of each Lender designated
as such in Schedule 1 hereto; thereafter, such other office of such Lender, if
any, located within the United States that will be making or maintaining Base
Rate Loans.
Drawdown Date. The date on which any Revolving Credit Loan or
--------------
any Term Loan is made or is to be made.
EIBC Subsidiaries. Emmis Latin America Broadcasting Corporation and Emmis
South America Broadcasting Corporation, each of which are California
corporations and wholly owned subsidiaries of Emmis International Broadcasting
Corporation.
Employee Benefit Plan. Any employee benefit plan within the meaning of
ss.3(3) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate, other than a Guaranteed Pension Plan or a Multiemployer Plan.
Environmental Laws. Seess.9.18(a).
------------------
EPA. Seess.9.18(b).
---
Equity Issuance. The sale or issuance by the Borrower or any of
----------------
its Subsidiaries of any of its Capital Stock other than to the Borrower
or any Subsidiary.
ERISA. The Employee Retirement Income Security Act of 1974.
-----
ERISA Affiliate. Any Person which is treated as a single employer with the
Borrower under ss.414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of ss.4043 of ERISA and the regulations
promulgated thereunder.
Eurocurrency Reserve Rate. For any day with respect to a Eurodollar Rate
Loan, the maximum rate (expressed as a decimal) at which any bank subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurocurrency Reserve Rate.
Eurodollar Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London,
Houston, Texas and New York, New York or such other eurodollar interbank market
as may be selected by the Administrative Agent in its sole discretion acting in
good faith.
Eurodollar Lending Office. Initially, the office of each Lender designated
as such in Schedule 1 hereto; thereafter, such other office of such Lender, if
any, that shall be making or maintaining Eurodollar Rate Loans.
Eurodollar Rate. For any Interest Period with regard to a Eurodollar Rate,
the rate of interest equal to (i) the rate determined by the Administrative
Agent at which Dollar deposits for such Interest Period are offered based on
information presented on Telerate Page 3750 as of 11:00 a.m. London time on the
second Eurodollar Business Day prior to the first day of such Interest Period
for the number of days comprised therein and in an amount comparable to the
amount of the Eurodollar Rate Loan of the Administrative Agent to which such
Interest Period applies, divided by (ii) a number equal to 1.00 minus the
Eurocurrency Reserve Rate; provided, however, if the rate described above does
not appear on the Telerate System on any applicable interest determination date,
the Eurodollar Rate shall be the rate (rounded upward, if necessary, to the
nearest one hundred-thousandth of a percentage point), determined on the basis
of the offered rates for deposits in Dollars in an amount equal to the
Eurodollar Rate Loan to be advanced by the Administrative Agent for a period of
time comparable to such Interest Period which are offered by four major banks in
the London interbank market at approximately 11:00 a.m. London time, on the
second Eurodollar Business Day prior to the first day of such Interest Period as
selected by the Administrative Agent. The principal London office of each of the
four major London banks will be requested to provide a quotation of its Dollar
deposit offered rate. If at least two such quotations are provided, the rate for
that date will be the arithmetic mean of the quotations. If fewer than two
quotations are provided as requested, the rate for that date will be determined
on the basis of the rates quoted for loans in Dollars to leading European banks
for a period of time comparable to such Interest Period offered by major banks
in New York City at approximately 11:00 a.m. New York City time, on the second
Eurodollar Business Day prior to the first day of such Interest Period. In the
event that the Administrative Agent is unable to obtain any such quotation as
provided above, it will be deemed that Eurodollar Rate pursuant to a Eurodollar
Rate Loan cannot be determined.
Eurodollar Rate Loans. Revolving Credit Loans and all or any portion of
the Tranche A Term Loan or Tranche B Term Loan bearing interest calculated by
reference to the Eurodollar Rate.
Event of Default. Seess.15.1.
----------------
Excluded Assets. (a) Real Estate other than (i) Real Estate located at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, (ii) Real Estate
of KHON-TV and KGMB-TV located at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
respectively, in Honolulu, Hawaii and (iii) owned Real Estate acquired after the
date hereof having a value in excess of $5,000,000 over which the Administrative
Agent requests a Lien, (b) LMA Agreements not required to be assigned pursuant
to ss.11.5.1(e)(ii)(B) hereof, (c) (i) membership interests in ▇▇▇▇▇▇ American
Radio, LLC held by Emmis DAR, Inc., (ii) limited partnership interests in
Waterloo II, Limited Partnership held by Mediatex Development Corporation and
(iii) interests in Baby Ree Entertainment, LLC, held by KPWR, Inc., and (d)
property subject to Capitalized Leases and purchase money liens permitted
hereunder provided that such Capitalized Lease and any purchase money agreement
would prohibit assignment or liens in favor of the Administrative Agent and the
Lenders to secure the Obligations on the assets subject thereto (but solely to
the extent that any such restriction shall be enforceable under applicable law)
without the consent of the lessor thereof or other applicable party thereto.
Excluded Subsidiaries. Collectively, (a) Emmis International Corporation,
an Indiana corporation, and Emmis Pledge Corporation, a Delaware corporation,
and each of their respective subsidiaries provided that if such Persons have not
been dissolved or merged into the Borrower by March 15, 2001, they shall be
Subsidiaries and shall join onto the Security Documents in the same manner as
would be required if they were newly formed Subsidiaries pursuant to ss.10.15
hereof, (b) each subsidiary of Emmis International Broadcasting Corporation, (c)
Game Warden Wildlife Magazine Journal, LLC, an Indiana limited liability
company, Country Sampler Stores LLC, an Illinois limited liability company, (d)
any other subsidiary formed or acquired by Emmis International Broadcasting
Corporation following the date hereof which is not organized under the laws of
the United States or any state or political subdivision of the United States
provided that no such subsidiary shall be an Excluded Subsidiary if it is a
"Guarantor" under and as defined in the Subordinated Note Indenture and (e) any
other subsidiary formed or acquired by the Borrower or any of its subsidiaries
following the date hereof and designated as an Excluded Subsidiary by the
Borrower upon prior written notice to the Administrative Agent provided that (i)
after giving effect to such designation no Default of Event of Default is then
continuing or is projected to occur under ss.12 and (ii) such subsidiary shall
be an "Unrestricted Subsidiary" under and as defined in the Subordinated Note
Indenture and provided further that no such subsidiary shall be an Excluded
Subsidiary if it is a "Guarantor" under and as defined in the Subordinated Note
Indenture.
Excluded Taxes. Seess.7.3.2.
--------------
Existing Credit Agreement. As defined in the recitals hereto.
-------------------------
Existing Lenders. As defined in the recitals hereto.
----------------
FCC. The Federal Communications Commission (or any successor
---
agency, commission, bureau, department or other political subdivision
of the United States of America).
FCC License. Any license, permit, certificate of compliance, franchise,
approval or authorization granted or issued by the FCC.
Fee Letter. The fee letter, dated as of November 17, 2000, by
----------
and among the Borrower, the Administrative Agent and the Initial
Agents.
Fees. Collectively, the Commitment Fee, the Letter of Credit Fees, the
Closing Fee and any other fees that the Borrower may, after the date hereof,
agree in writing to pay to the Lenders or the Agents in connection with this
Credit Agreement.
Financial Affiliate. A Subsidiary of the bank holding company
--------------------
controlling any Lender that is engaging in any of the activities
permitted byss.4(e) of the Bank Holding Company Act of 1956 (12 U.S.C.
ss.1843).
Funding Date. The first date on which the conditions set forth in ss.13
have been satisfied and any Revolving Credit Loans and the Term Loans are to be
made or any Letter of Credit is to be issued hereunder.
GAAP. (a) When used in ss.12, whether directly or indirectly through
reference to a capitalized term used therein, means (i) principles that are
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, in effect for the fiscal year
ended on the Balance Sheet Date, and (ii) to the extent consistent with such
principles, the accounting practice of the Borrower reflected in its financial
statements for the year ended on the Balance Sheet Date, and (b) when used in
general, other than as provided above, means principles that are (i) consistent
with the principles promulgated or adopted by the Financial Accounting Standards
Board and its predecessors, as in effect from time to time, and (ii)
consistently applied with past financial statements of the Borrower adopting the
same principles, provided that in each case referred to in this definition of
"GAAP" a certified public accountant would, insofar as the use of such
accounting principles is pertinent, be in a position to deliver an unqualified
opinion (other than a qualification regarding changes in GAAP) as to financial
statements in which such principles have been properly applied.
Governing Documents. With respect to any Person, its certificate or
articles of incorporation, membership agreement, partnership agreement or
similar charter document, any by-laws and all shareholder agreements, voting
trusts and similar arrangements applicable to any of its Capital Stock.
Governmental Authority. Any foreign, federal, state, regional, local,
municipal or other government, or any department, commission, board, bureau,
agency, public authority or instrumentality thereof, or any court or arbitrator,
including, without limitation, the FCC.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of ss.3(2) of ERISA maintained or contributed to by the Borrower or any
ERISA Affiliate the benefits of which are guaranteed on termination in full or
in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
Guaranty. The Fifth Amended and Restated Subsidiary Guaranty, dated or to
be dated as of the date hereof, made by each of the Subsidiaries of the Borrower
and the EIBC Subsidiaries in favor of the Lenders and the Administrative Agent
pursuant to which each such Subsidiary of the Borrower guaranties to the Lenders
and the Administrative Agent the payment and performance of the Obligations and
in form and substance satisfactory to the Lenders and the Administrative Agent.
Hazardous Substances. Seess.9.18(b).
--------------------
Hearst-Argyle. Collectively, Hearst-Argyle Properties, Inc. and
-------------
any of its Subsidiaries.
Hearst-Argyle Acquisition Documents. Collectively, (a) the Option
Agreement, dated June 5, 2000, between Hearst-Argyle and the Borrower, (b) the
Program Service and Time Brokerage Agreement, dated June 5, 2000, between
Hearst-Argyle and the Borrower, and (c) all other agreements and documents
entered into or delivered pursuant to or in connection with the Hearst-Argyle
Transaction.
Hearst-Argyle Transaction. The acquisition by the Borrower or one or more
of its Subsidiaries from Hearst-Argyle of substantially all of the assets
(including all FCC licenses) used in connection with radio Stations KTAR-AM,
KMVP-AM and KKLT-FM, each in Phoenix, Arizona, either in exchange for
substantially all of the assets used in connection with a television Station to
be selected by Hearst-Argyle, which will be acquired by the Borrower or a
Subsidiary of the Borrower immediately prior to such exchange, pursuant to the
terms of the Hearst-Argyle Acquisition Documents or for cash in an amount not to
exceed $160,000,000 subject to adjustments and prorations provided for in the
Hearst-Argyle Acquisition Documents.
Indebtedness. As to any Person and whether recourse is secured by or is
otherwise available against all or only a portion of the assets of such Person
and whether or not contingent, but without duplication:
(a) every obligation of such Person for money borrowed,
(b) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in
connection with the acquisition of property, assets or businesses,
(c) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities issued for
the account of such Person,
(d) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (including securities repurchase
agreements but excluding trade accounts payable or accrued liabilities
arising in the ordinary course of business which are not overdue or which
are being contested in good faith),
(e) every obligation of such Person under any Capitalized
Lease,
(f) every obligation of such Person under any Synthetic
Lease,
(g) all sales by such Person of (i) accounts or general intangibles
for money due or to become due, (ii) chattel paper, instruments or
documents creating or evidencing a right to payment of money or (iii)
other receivables (collectively "receivables"), whether pursuant to a
purchase facility or otherwise, other than in connection with the
disposition of the business operations of such Person relating thereto or
a disposition of defaulted receivables for collection and not as a
financing arrangement, and together with any obligation of such Person to
pay any discount, interest, fees, indemnities, penalties, recourse,
expenses or other amounts in connection therewith,
(h) every obligation of such Person (an "equity related purchase
obligation") to purchase, redeem, retire or otherwise acquire for value
any shares of Capital Stock issued by such Person or any rights measured
by the value of such Capital Stock,
(i) every obligation of such Person under any forward contract,
futures contract, swap, option or other financing agreement or arrangement
(including, without limitation, caps, floors, collars and similar
agreements), the value of which is dependent upon interest rates, currency
exchange rates, commodities or other indices (a "derivative contract"),
(j) every obligation in respect of Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to
the extent that such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity,
except to the extent that the terms of such Indebtedness provide that such
Person is not liable therefor and such terms are enforceable under
applicable law,
(k) every obligation, contingent or otherwise, of such Person
guaranteeing, or having the economic effect of guarantying or otherwise
acting as surety for, any obligation of a type described in any of clauses
(a) through (j) (the "primary obligation") of another Person (the "primary
obligor"), in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person (i) to purchase or pay
(or advance or supply funds for the purchase of) any security for the
payment of such primary obligation, (ii) to purchase property, securities
or services for the purpose of assuring the payment of such primary
obligation, or (iii) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such primary obligation.
The "amount" or "principal amount" of any Indebtedness at any time of
determination represented by (u) any Indebtedness, issued at a price that is
less than the principal amount at maturity thereof, shall be the amount of the
liability in respect thereof determined in accordance with GAAP, (v) any
Capitalized Lease shall be the principal component of the aggregate of the
rentals obligation under such Capitalized Lease payable over the term thereof
that is not subject to termination by the lessee, (w) any sale of receivables
shall be the amount of unrecovered capital or principal investment of the
purchaser (other than the Borrower or any of its wholly-owned Subsidiaries)
thereof, excluding amounts representative of yield or interest earned on such
investment, (x) any Synthetic Lease shall be the stipulated loss value,
termination value or other equivalent amount, (y) any derivative contract shall
be the maximum amount of any termination or loss payment required to be paid by
such Person if such derivative contract were, at the time of determination, to
be terminated by reason of any event of default or early termination event
thereunder, whether or not such event of default or early termination event has
in fact occurred and (z) any equity related purchase obligation shall be the
maximum fixed redemption or purchase price thereof inclusive of any accrued and
unpaid dividends to be comprised in such redemption or purchase price.
Ineligible Securities. 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.ss.24, Seventh), as amended.
Initial Agents. Collectively, the Administrative Agent, the
------- ------
Syndication Agent and the Documentation Agent.
Instrument of Accession. Seess.16.1.
-----------------------
Interest Coverage Ratio. At any date of determination, the ratio of (a)
Consolidated Operating Cash Flow for the Reference Period most recently ended to
(b) Consolidated Total Interest Expense for such Reference Period.
Interest Payment Date. (a) As to any Base Rate Loan, the last day of the
calendar quarter with respect to interest accrued during such calendar quarter,
including, without limitation, the calendar quarter which includes the Drawdown
Date of such Base Rate Loan; and (b) as to any Eurodollar Rate Loan in respect
of which the Interest Period is (i) three (3) months or less, the last day of
such Interest Period and (ii) more than three (3) months, the date that is three
(3) months from the first day of such Interest Period and, in addition, the last
day of such Interest Period.
Interest Period. With respect to each Revolving Credit Loan or all or any
relevant portion of the Tranche A Term Loan or the Tranche B Term Loan (a) that
is a Eurodollar Rate Loan, initially, the period commencing on the Drawdown Date
of such Loan and ending on the last day of a period consisting of one (1), two
(2), three (3) or six (6) months, and if acceptable to all Lenders within the
relevant Tranche, nine (9) or twelve (12) months, as selected by the Borrower in
a Loan Request or as otherwise required by the terms of this Credit Agreement,
and (b) thereafter, each period commencing on the last day of the next preceding
Interest Period applicable to such Revolving Credit Loan or all or such portion
of the Tranche A Term Loan or the Tranche B Term Loan and ending on the last day
of one of the periods set forth above, as selected by the Borrower in a
Conversion Request; provided that all of the foregoing provisions relating to
Interest Periods are subject to the following:
(A) if any Interest Period with respect to a Eurodollar Rate Loan
would otherwise end on a day that is not a Eurodollar Business Day, that
Interest Period shall be extended to the next succeeding Eurodollar
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 immediately preceding Eurodollar Business Day;
(B) if the Borrower shall fail to give notice as provided in ss.2.7,
ss.3.5.2 or ss.4.5.2, the Borrower shall be deemed to have requested a
conversion of the affected Eurodollar Rate Loan to a Base Rate Loan and
the continuance of all Base Rate Loans as Base Rate Loans on the last day
of the then current Interest Period with respect thereto;
(C) any Interest Period relating to any Eurodollar Rate Loan that
begins on the last Eurodollar 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 Eurodollar
Business Day of a calendar month; and
(D) any Interest Period that would otherwise extend beyond the
Revolving Credit Loan Maturity Date (if comprising a Revolving Credit
Loan), the Tranche A Maturity Date (if comprising the Tranche A Term Loan
or a portion thereof) or the Tranche B Maturity Date (if comprising the
Tranche B Term Loan or a portion thereof) shall end on the Revolving
Credit Loan Maturity Date, the Tranche A Maturity Date or the Tranche B
Maturity Date, as the case may be.
Interest Rate Agreement. Any interest rate swap agreement, interest rate
cap agreement, interest rate collar agreement, interest rate futures contract,
interest rate option agreement or other similar agreement or arrangement to
which the Borrower and any Lender is a party, designed to protect the Borrower
against fluctuations in interest rates.
Investments. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of Capital Stock or Indebtedness
of, or for loans, advances, capital contributions or transfers of property to,
or in respect of any guaranties (or other commitments as described under
Indebtedness), or obligations of, any Person, but excluding accrued interest or
earnings thereon. In determining the aggregate amount of Investments outstanding
at any particular time: (a) the amount of any Investment represented by a
guaranty shall be taken at not less than the principal amount of the obligations
guaranteed and still outstanding; (b) there shall be deducted in respect of each
such Investment any amount received as a return of capital (but only by
repurchase, redemption, retirement, repayment, liquidating dividend or
liquidating distribution); (c) there shall not be deducted in respect of any
Investment any amounts received as earnings on such Investment, whether as
dividends, interest or otherwise, and (d) there shall not be deducted from the
aggregate amount of Investments any decrease in the value thereof.
Lender Affiliate. (a) With respect to any Lender, (i) an Affiliate of such
Lender or (ii) any entity (whether a corporation, partnership, limited liability
company, trust or legal entity) that is engaged in making, purchasing, holding
or otherwise investing in bank loans and similar extensions of credit in the
ordinary course of its business and is administered or managed by such Lender or
an Affiliate of such Lender and (b) with respect to any Lender that is a fund
which invests in bank loans and similar extensions of credit, any other entity
(whether a corporation, partnership, limited liability company, trust or other
legal entity) that is a fund that invests in bank loans and similar extensions
of credit and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
Lenders. Collectively, the Revolving Credit Lenders, the Tranche A Lenders
and the Tranche B Lenders and any institution that becomes a Lender pursuant to
ss.16 or ss.18.
Letter of Credit. Seess.6.1.1.
----------------
Letter of Credit Application. Seess.6.1.1.
----------------------------
Letter of Credit Fee. Seess.6.6.
--------------------
Letter of Credit Participation. Seess.6.1.4.
------------------------------
License Subsidiaries. Collectively, (a) Emmis License Corporation, Emmis
License Corporation of New York, Emmis FM License Corporation of St. Louis,
Emmis FM License Corporation of Chicago, KPWR License, Inc., Emmis FM License
Corporation of Indianapolis, Emmis FM Radio License Corporation of Indianapolis,
Emmis AM Radio License Corporation of Indianapolis, Emmis Radio License
Corporation of New York, Emmis 104.1 FM Radio License Corporation of St. Louis,
Emmis 106.5 FM License Corporation of St. Louis, Emmis 105.7 FM Radio License
Corporation of Indianapolis, Emmis 1310 AM Radio License Corporation of
Indianapolis, Emmis Television License Corporation of Honolulu, Emmis Television
License Corporation of Green Bay, Emmis Television License Corporation of
Mobile, Emmis Television License Corporation of New Orleans, Emmis Television
License Corporation of Orlando, Emmis Television License Corporation of Terre
Haute, Emmis 105.5 FM Radio License Corporation of Terre Haute, Emmis Television
License Corporation of Cape Coral, Emmis 99.9 FM Radio License Corporation of
Terre Haute, Emmis License Corporation of Phoenix, Emmis License Corporation of
Denver, Emmis Television License Corporation of West Virginia, Emmis Television
License Corporation of Tucson, Emmis Television License Corporation of Omaha,
Emmis Television License Corporation of Albuquerque, each a California
corporation, (b) Wichita License Subsidiary Corp., Topeka License Subsidiary
Corp., each a Delaware corporation, and their successors, and (c) any new
License Subsidiaries formed or acquired in connection with any Permitted
Acquisition, the Reorganization permitted pursuant to ss.22 hereof or any
internal reorganization permitted pursuant to ss.11.5.1(a).
Lien. Any mortgage, deed of trust, security interest, pledge,
hypothecation, assignment, attachment, deposit arrangement, encumbrance, lien
(statutory, judgment or otherwise), or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement, any Capitalized Lease, any Synthetic Lease, any
financing lease involving substantially the same economic effect as any of the
foregoing and the filing of any financing statement under the UCC or comparable
law of any jurisdiction).
LMA Agreement. Any time brokerage agreement, local marketing agreement or
related or similar agreements pursuant to which a Person acquires the right to
program substantially all of the time and to sell all of the advertising spots
of a Station owned by another non-affiliated person in exchange for cash
payment, entered into, directly or indirectly, between the Borrower or any of
its Subsidiaries and any Person other than the Borrower or any of its
Subsidiaries.
Loan Documents. Collectively, this Credit Agreement, the Notes, the Letter
of Credit Applications, the Security Documents and any other documents,
agreements or instruments contemplated thereby or executed by the Borrower or a
Subsidiary in connection therewith.
Loan Request. Seess.2.6.
------------
Loans. Collectively, the Revolving Credit Loans and the Term Loans and for
purposes of ss.16 only, any new loan provided to the Borrower in accordance with
the terms and conditions set forth in such ss.16.
Material Adverse Effect. With respect to any event or occurrence
------------------------
of whatever nature (including any adverse determination in any
litigation, arbitration or governmental investigation or proceeding):
(a) a material adverse effect on the business, properties, condition
(financial or otherwise), assets, operations or income of the Borrower and
its Subsidiaries, taken as a whole;
(b) a material adverse effect on the ability of the Borrower
individually or the Borrower and its Subsidiaries, taken as a whole, to
perform any of their respective Obligations under any of the Loan
Documents to which it is a party; or
(c) any impairment of the validity, binding effect or enforceability
of this Credit Agreement or any of the other Loan Documents, any material
impairment of the rights, remedies or benefits available to the
Administrative Agent or any Lender under any Loan Document or any
impairment of the attachment, perfection or priority of any Lien of the
Administrative Agent under the Security Documents.
Maximum Drawing Amount. The maximum aggregate amount that the
beneficiaries may at any time draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to the terms of the
Letters of Credit.
Moody's. ▇▇▇▇▇'▇ Investors Services, Inc.
-------
Mortgaged Property. Any Real Estate which is subject to any
-------------------
Mortgage.
Mortgages. The mortgages and deeds of trust from the Borrower and/or its
Subsidiaries to the Administrative Agent with respect to the fee and leasehold
interests of the Borrower and its Subsidiaries in certain Real Estate and in
form and substance satisfactory to the Administrative Agent.
Multiemployer Plan. Any multiemployer plan within the meaning of
-------------------
ss.3(37) of ERISA maintained or contributed to by the Borrower or any
ERISA Affiliate.
Necessary Authorization. Any license, permit, consent, franchise, order,
approval or authorization from, or any filing, recording or registration with,
any Governmental Authority (including without limitation the FCC) necessary to
the conduct of any business of the Borrower or any of its Subsidiaries or for
the ownership, maintenance and operation by such Person of its Stations and
other properties or to the performance by such Person of its obligations under
any LMA Agreement.
Net Cash Equity Issuance Proceeds. With respect to any Equity Issuance,
the excess of the gross cash proceeds received by the Borrower or any of its
Subsidiaries for such Equity Issuance after deduction of all reasonable and
customary transaction expenses (including, without limitation, underwriting
discounts and commissions) actually incurred in connection with such a sale or
other issuance.
Net Cash Sale Proceeds. The gross cash proceeds received by the Borrower
or any of its Subsidiaries in respect of any Asset Sale or Asset Swap, minus the
sum of (a) all reasonable out-of-pocket fees, commissions and other reasonable
and customary direct expenses actually incurred in connection with such Asset
Sale or Asset Swap, including the amount of any transfer or documentary taxes
required to be paid by such Person in connection with such Asset Sale or Asset
Swap, plus (b) the aggregate amount of cash so received by such Person which is
required to be used to retire (in whole or in part) any Indebtedness (other than
under the Loan Documents) of such Person permitted by this Credit Agreement that
was secured by a lien or security interest permitted by this Credit Agreement
having priority over the liens and security interests (if any) of the
Administrative Agent (for the benefit of the Administrative Agent and the
Lenders) with respect to such assets transferred and which is required to be
repaid in whole or in part (which repayment, in the case of any other revolving
credit arrangement or multiple advance arrangement, reduces any commitment
thereunder) in connection with such Asset Sale or Asset Swap, plus (c) any cash
reserve in an amount reasonably determined by the Borrower to be necessary in
connection with indemnification obligations or potential post-closing purchase
price adjustments relating to such Asset Sale or Asset Swap so long as the
Administrative Agent holds such cash reserve amount as cash collateral pursuant
to ss.5.6 hereof and the Borrower provides to the Administrative Agent an
accounting of such proceeds reasonably satisfactory to the Administrative Agent.
If the Borrower or any of its Subsidiaries receives any promissory notes or
other instruments as part of the consideration for such Asset Sale or Asset Swap
or if payment in cash of any portion of the consideration for such Asset Sale or
Asset Swap is otherwise deferred or if the amount previously held as a cash
reserve for indemnification obligations or purchase price adjustments is
reduced, Net Cash Sale Proceeds shall be deemed to include any cash payments in
respect of such notes or instruments or otherwise deferred portion of such
consideration when and to the extent received by such Person.
Notes. Collectively, the Revolving Credit Notes, the Tranche A Term Notes,
the Tranche B Term Notes and any promissory notes of the Borrower evidencing a
new Loan to the Borrower advanced in accordance with the terms and conditions
set forth in such ss.16.
Obligations. All indebtedness, obligations and liabilities of any of the
Borrower and its Subsidiaries to any of the Lenders or the Administrative Agent,
individually or collectively, existing on the date of this Credit Agreement or
arising thereafter, direct or indirect, joint or several, absolute or
contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, arising or
incurred under or in connection with this Credit Agreement or any of the other
Loan Documents or any Interest Rate Agreement required to be maintained pursuant
to the terms of this Credit Agreement or in respect of any of the Loans made or
Reimbursement Obligations incurred or any of the Notes, Letter of Credit
Applications, Letters of Credit or other instruments at any time evidencing any
thereof.
Operating Subsidiaries. Collectively, (a) Emmis 105.7 FM Radio Corporation
of Indianapolis, Emmis 1310 AM Radio Corporation of Indianapolis, Emmis FM
Broadcasting Corporation of Indianapolis, Emmis FM Radio Corporation of
Indianapolis, Emmis AM Radio Corporation of Indianapolis, Emmis Broadcasting
Corporation of New York, Emmis Meadowlands Corporation, Emmis FM Broadcasting
Corporation of Chicago, Emmis FM Broadcasting Corporation of St. Louis, KPWR,
Inc., Emmis DAR, Inc., Emmis Publishing Corporation, Emmis 104.1 FM Radio
Corporation of St. Louis, Emmis 1380 AM Radio Corporation of St. Louis, Emmis
106.5 FM Broadcasting Corporation of St. Louis, Emmis Broadcasting Corporation
of Phoenix, and Emmis Broadcasting Corporation of Denver, each an Indiana
corporation; (b) Mediatex Communications Corporation, Texas Monthly, Inc., and
Mediatex Development Corporation, each a Texas corporation, (c) Emmis 101.9 FM
Radio Corporation of New York, a Michigan corporation, (d) Emmis FM Holding
Corporation of New York, Emmis Radio Corporation of New York, Los Angeles
Magazine, Inc., Los Angeles Magazine Holding Company, Inc., and KOIN-TV, Inc.,
each a Delaware corporation, (e) Big Hit Marketing, Inc. an Illinois
corporation, (f) SJL of Kansas Corporation, a Kansas corporation, (g) Topeka
Television Corporation, a Missouri corporation, (h) the Partnership Subsidiaries
and their successors and (i) any new Operating Subsidiaries acquired in
connection with any Permitted Acquisitions, the Reorganization permitted
pursuant to ss.22 hereof or any internal reorganization permitted pursuant to
ss.11.5.1(a).
outstanding. With respect to the Loans, the aggregate unpaid
-----------
principal thereof as of any date of determination.
Partnership Pledge Agreement. The Third Amended and Restated Collateral
Assignment of Partnership Interests, dated or to be dated as of the date hereof,
as the same may be amended from time to time hereafter, among the partners of
the Partnership Subsidiaries, on the one hand, and the Administrative Agent, on
the other hand, in form and substance satisfactory to the Administrative Agent.
Partnership Subsidiaries. Collectively, Emmis Indiana
---------------------------
Broadcasting, L.P., Emmis Publishing, L.P. and Emmis Television
Broadcasting, L.P., each an Indiana limited partnership.
PBGC. The Pension Benefit Guaranty Corporation created byss.4002
----
of ERISA and any successor entity or entities having similar
responsibilities.
Perfection Certificates. The Perfection Certificates as defined
------------------------
in the Security Agreements.
Permitted Acquisition. Any acquisition permitted underss.11.5.1.
---------------------
Permitted Holders. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, his spouse, his children,
------------------
his grandchildren and trusts created for the benefit of any of the
foregoing.
Permitted Liens. Liens permitted byss.11.2.
---------------
Person. Any individual, corporation, limited liability company,
partnership, limited liability partnership, trust, other unincorporated
association, business, or other legal entity, and any Governmental Authority.
Pledge Agreements. Collectively, the Borrower Pledge Agreement,
------------------
the Subsidiary Pledge Agreement and the Partnership Pledge Agreements.
Pro Forma Basis. In connection with any proposed Permitted Acquisition,
(including acquisitions contemplated in connection with an LMA Agreement), Asset
Sale or Asset Swap, the calculation of compliance with the financial covenants
set forth in ss.12 by the Borrower and its Subsidiaries (after including the
business, business division or Person to be acquired in connection with any
Permitted Acquisition or Asset Swap as if such business, business division or
Person were a Subsidiary and after excluding any business, business division or
Person to be sold or otherwise disposed of in connection with any Asset Sale or
Asset Swap). The calculation of such compliance shall be determined as of the
most recently ended Test Period by reference to the financial results of the
Borrower and its Subsidiaries for such Test Period after adjusting the same to
(i) exclude the financial results attributable to any business, business
division or Person to be sold or otherwise disposed of in connection with any
such Asset Sale or Asset Swap as if such transaction occurred immediately prior
to such Test Period, and (ii) include the audited financial results of any
business, business division or Person to be acquired in connection with such
Permitted Acquisition or Asset Swap, if available for such Test Period, or if
such audited financial results are not available for such Test Period, any
unaudited financial results or any management reports as are approved by the
Administrative Agent in respect of such business, business division or Person,
as if such Permitted Acquisition or Asset Swap had occurred immediately prior to
such Test Period and including the adjustments described in clauses (a), (b),
(c) and (d) below; and, following a Permitted Acquisition, Asset Sale or Asset
Swap, the calculation of compliance with the covenants set forth in ss.12 for
the fiscal quarter in which such Permitted Acquisition, Asset Sale or Asset Swap
occurred and each of the three (3) fiscal quarters immediately following such
transaction shall be calculated in the manner set forth above for any portion of
the then applicable Reference Period which occurred prior to the date of such
transaction including the adjustments described in clauses (a), (b), (c) and (d)
below:
(a) all Indebtedness (whether under this Credit Agreement or
otherwise) and any other balance sheet adjustments incurred, made or
assumed in connection with a Permitted Acquisition, Asset Sale or Asset
Swap shall be deemed to have been incurred, made or assumed on the first
day of the Test Period, and all Indebtedness of the Person acquired or to
be acquired in such Permitted Acquisition, Asset Sale or Asset Swap or
which is attributable to the business or business division acquired or to
be acquired which was or will have been repaid in connection with the
consummation of the Permitted Acquisition, Asset Sale or Asset Swap shall
be deemed to have been repaid on the first day of the Test Period;
(b) all Indebtedness assumed to have been incurred pursuant to the
preceding clause (a) shall be deemed to have borne interest at (i) the
arithmetic mean of (A) the Eurodollar Rate for Eurodollar Rate Loans
having an Interest Period of one (1) month in effect on the first day of
the Test Period and (B) the Eurodollar Rate for Eurodollar Rate Loans
having an Interest Period of one (1) month in effect on the last day of
the Test Period plus (ii) the Applicable Margin with respect to Revolving
Credit Loans which are Eurodollar Rate Loans then in effect (after giving
effect to the Permitted Acquisition on a pro forma basis);
(c) for purposes of calculating Consolidated Operating Cash Flow for
the Test Period, other reasonable cost savings, expenses and other income
statement, or operating statement adjustments as may be approved by the
Initial Agents in writing which are attributable to the change in
ownership and/or management resulting from such Permitted Acquisition
(including the amount of any pre-acquisition management fees paid during
such period in connection with the operation of any Station subject to
such Permitted Acquisition or Asset Swap to the extent such fees are not
payable after such transaction) shall be deemed to have been realized on
the first day of the Test Period, provided that the Initial Agents shall
be under no obligation to approve such cost savings, expenses or other
adjustments and provided further that in respect of the Scheduled
Transactions, the amount of any pro forma expense reductions reasonably
anticipated by the Borrower to be realized after the Scheduled
Transactions, to the extent such expenses were otherwise deducted from
Consolidated Operating Cash Flow, shall not exceed the amount set forth
below for any period of four (4) consecutive fiscal quarters ending on the
dates set forth below:
------------------------------------------------------
Period Ending Maximum Pro
Forma Expense Reduction
------------------------------------------------------
------------------------------------------------------
November 30, 2000 $4,500,000
------------------------------------------------------
------------------------------------------------------
February 28, 2001 $3,000,000
------------------------------------------------------
------------------------------------------------------
May 31, 2001 $1,500,000
------------------------------------------------------
(d) for purposes of calculating Consolidated Operating Cash Flow for
the Test Period, with respect to any Permitted Acquisition or Asset Swap,
Consolidated Net Income (or Deficit) shall be increased by (i) the amount
of any bad debt reserve adjustment associated with any accounts receivable
on the books of such acquired Station on the date of acquisition thereof
to the extent that such accounts receivable are not acquired by the
Borrower or any of such Subsidiaries, and (ii) the amount of any bad debt
reserve adjustment associated with any accounts receivable on the books of
such acquired Station on the date of acquisition thereof and which are
acquired by the Borrower or any of such Subsidiaries to the extent such
bad debt reserve adjustment exceeds the amount the Borrower would have
reserved with respect to such accounts receivable in accordance with its
customary reserve practices.
Pro Forma Fixed Charge Coverage Ratio. At any date of determination, the
ratio of (a) Consolidated Operating Cash Flow for the Reference Period ending on
such date to (b) Pro Forma Fixed Charges for the Reference Period commencing on
the date following such date of determination.
Pro Forma Fixed Charges. With respect to any date of determination, the
sum of (a) Consolidated Total Interest Expense required to be paid or accrued by
the Borrower or any of its Subsidiaries during the period of four (4)
consecutive fiscal quarters commencing on the date following such date of
determination, plus (b) the sum of all principal scheduled to be paid by each
such Person with respect to Consolidated Total Funded Debt during such four (4)
quarter period, plus (c) all Capital Expenditures scheduled to be made by the
Borrower and/or its Subsidiaries during such four (4) quarter period, plus (d)
the aggregate amount of cash taxes projected to be paid by the Borrower and/or
its Subsidiaries during such four (4) quarter period, plus (e) the aggregate
amount of all Distributions that the Borrower projects will be paid during such
four (4) quarter period on its preferred stock. For purposes of the foregoing
calculation, (A) the amount of Capital Expenditures scheduled to be made by the
Borrower and its Subsidiaries shall be deemed to equal the amount of Capital
Expenditures projected to be made during such prospective four (4) quarter
period pursuant to the Projections or any updated budget delivered pursuant to
ss.10.4(e) (or updated projections delivered in connection with a proposed
Permitted Acquisition (including acquisitions contemplated in connection with an
LMA Agreement), Asset Sale or Asset Swap for purposes of calculating covenant
compliance on a Pro Forma Basis under ss.11.5.1(b)(ii)) unless the Lenders
disapprove the use of such updated projections for use in this definition, (B)
the amount of cash taxes projected to be paid by the Borrower and its
Subsidiaries during such prospective four (4) quarter period shall be deemed to
be the amount projected in the most recent budget to be paid for such period by
the Borrower, (c) interest payable hereunder for such prospective four (4)
quarter period shall be determined based upon the Type of Loans outstanding as
of the date of determination and using the interest rate in effect for each Type
of Loan on such date, (D) the principal amount of and the interest rate on any
other Indebtedness for borrowed money during such prospective four (4) quarter
period shall be the principal amount of and the interest rate on such
Indebtedness on the date of determination which, for purposes of calculating
covenant compliance on a Pro Forma Basis pursuant to ss.11.5.1(b), shall be
inclusive of any Indebtedness (other than the Loans) to be assumed or incurred
in connection with any proposed Permitted Acquisition or Asset Swap, and (E) the
aggregate principal amount of Loans outstanding during each day of such
prospective four (4) quarter period shall be deemed, for purposes of calculating
interest payable hereunder, to be equal to the sum of (i) the lesser of (x) the
average daily principal amount of the Revolving Credit Loans outstanding during
the fiscal quarter ending on such date of determination and (y) the Total
Revolving Credit Commitment in effect on the date of determination plus (ii) the
aggregate principal amount of the Term Loans outstanding on the date of
determination as adjusted to reflect principal payments scheduled to be made
during such period plus for purposes of calculating covenant compliance on a Pro
Forma Basis pursuant to ss.11.5.1(b), the aggregate principal amount of any
Loans to be advanced in connection with any proposed Permitted Acquisition or
Asset Swap.
Program. Any television series or other program produced or distributed
for television, or film or video release (including any syndicated series or
other program regardless of its medium of initial exploitation), in each case
whether recorded on film, videotape, audio tape, cassette, cartridge, disc or by
any other means, method, process or device, whether now known or hereafter
developed.
Program Contracts. All contracts for television and film.
-------------------
Programs, music and related audio rights and syndicated series
exhibition rights acquired under license agreements.
Program Rights. Any right whether arising under Program Contracts or
otherwise, to sell, distribute, subdistribute, exhibit, lease, sublease,
license, sublicense or otherwise exploit Programs.
Program Rights Costs. The maximum amount which the Borrower and/or any of
its Subsidiaries or its or their co-venturers have furnished or have
contractually committed to furnish (whether or not such commitments shall be
reflected as an asset or liability on the Consolidated balance sheet of the
Borrower) toward the production or acquisition by the Borrower and/or any of its
Subsidiaries or its or their co-venturers of any Program Rights with respect to
any Program.
Programming Amortization Expense. For any period, total amortization
expense of the Borrower and its Subsidiaries for such period which is directly
attributable to Programs, Program Rights or Program Contracts, determined on a
consolidated basis in accordance with GAAP.
Programming Cash Payments. For any period, the aggregate cash payments
actually made by Borrower and its Subsidiaries during such period in respect of
Programming Obligations, determined on a consolidated basis in conformity with
GAAP.
Programming Obligations. For any period, all direct or indirect
liabilities (including, but without duplication, any guaranties and other
contingent obligations relating to or arising in connection with a Programming
Obligation), contingent or otherwise, with respect to Program Contracts,
Programs or Program Rights, (including, without limitation, all Program Rights
Costs) of the Borrower and/or its Subsidiaries whether or not reflected on the
consolidated balance sheet of the Borrower and its subsidiaries prepared in
conformity with GAAP.
Projections. Seess.9.4.3.
-----------
Real Estate. All real property at any time owned or leased (as
------------
lessee or sublessee) by the Borrower or any of its Subsidiaries.
Record. The grid attached to a Note, or the continuation of such grid, or
any other similar record, including computer records, maintained by any Lender
with respect to any Loan referred to in such Note.
Reference Lender. Toronto Dominion.
----------------
Reference Period. As of any date of determination, the period of four (4)
consecutive fiscal quarters of the Borrower and its Subsidiaries ending on such
date, or if such date is not a fiscal quarter end date, the period of four (4)
consecutive fiscal quarters most recently ended (in each case treated as a
single accounting period).
Register. Seess.18.3.
--------
Reimbursement Obligation. The Borrower's obligation to reimburse the
Administrative Agent and the Revolving Credit Lenders on account of any drawing
under any Letter of Credit as provided in ss.6.2.
Reorganization. Seess.22.
--------------
Reorganization Subsidiaries. Seess.22.
---------------------------
Required Lenders. As of any date, the Lenders holding greater than fifty
percent (50%) of the sum of (i) the outstanding principal amount of the Tranche
A Term Notes and the Tranche B Term Notes on such date and (ii) the Revolving
Credit Commitment; and if no such principal is outstanding, the Lenders whose
aggregate Revolving Credit Commitments, the undrawn portion of any Tranche A
Commitments and the undrawn portion of any Tranche B Commitments constitutes
more than fifty percent (50%) of the Total Commitment.
Restricted Payment. In relation to the Borrower and its Subsidiaries, any
(a) Distribution, (b) payment in respect of Subordinated Debt, (c) payment of
management, consulting or similar fees to Affiliates of the Borrower or such
Subsidiary, or (d) derivatives or other transactions with any financial
institution, commodities or stock exchange or clearinghouse (a "Derivatives
Counterparty") obligating the Borrower or such Subsidiary to make payments to
such Derivatives Counterparty as a result of any change in market value of any
Capital Stock of the Borrower or such Subsidiary.
Revolving Credit Commitment. With respect to each Revolving Credit Lender,
the amount set forth on Schedule 1 hereto (as adjusted from time to time
pursuant to ss.ss.16 and/or 18) as the amount of such Revolving Credit Lender's
commitment to make Revolving Credit Loans to, and to participate in the
issuance, extension and renewal of Letters of Credit for the account of, the
Borrower, as the same may be reduced or increased from time to time pursuant to
ss.16 or ss.18 hereof; or if such commitment is terminated pursuant to the
provisions hereof, zero.
Revolving Credit Lenders. Each Lender which has a Revolving Credit
Commitment set forth opposite its name on Schedule 1 hereto and any other Person
who becomes an assignee of any rights and obligations of a Revolving Credit
Lender pursuant to ss.18 or who agrees to advance additional Revolving Credit
Loans pursuant to ss.16.
Revolving Credit Loan Maturity Date. February 28, 2009; provided that if
on March 15, 2008, the Subordinated Notes remain outstanding and the maturity
date of such Subordinated Notes shall not have been extended until March 15,
2010 or later, the Revolving Credit Loan Maturity Date shall be September 15,
2008.
Revolving Credit Loans. Revolving credit loans made or to be
------------------------
made by the Revolving Credit Lenders to the Borrower pursuant toss.2.
Revolving Credit Note Record. A Record with respect to a
--------------------------------
Revolving Credit Note.
Revolving Credit Notes. Seess.2.4.
----------------------
Scheduled Transaction. As defined in the definition of
-----------------------
"Consolidated Operating Cash Flow".
------------- --------- ---- ----
Security Agreements. Collectively, the Borrower Security
---------------------
Agreement and the Subsidiary Security Agreement.
Security Documents. The Guaranty, the Security Agreements, the Mortgages,
the Trademark Agreements, the Copyright Mortgage, the Pledge Agreements, the
Collateral Assignments of Contracts and all other instruments and documents,
including without limitation UCC financing statements, required to be executed
or delivered pursuant to any Security Document.
Senior Funded Debt. At any time of determination, Consolidated
-------------------
Total Funded Debt minus Subordinated Debt.
-----
Senior Leverage Ratio. At any time of determination, the ratio of (a)
Senior Funded Debt as at such date to (b) Consolidated Operating Cash Flow for
the Reference Period ending on such date.
Settlement. The making or receiving of payments, in immediately available
funds, by the Revolving Credit Lenders, to the extent necessary to cause each
Revolving Credit Lender's actual share of the outstanding amount of Revolving
Credit Loans (after giving effect to any Loan Request) to be equal to such
Revolving Credit Lender's Commitment Percentage of the outstanding amount of
such Revolving Credit Loans (after giving effect to any Loan Request), in any
case where, prior to such event or action, the actual share is not so equal.
Settlement Amount. Seess.2.9.1.
-----------------
Settlement Date. (a) The Drawdown Date relating to any Loan Request, (b)
Friday of each week, or if a Friday is not a Business Day, the Business Day
immediately following such Friday, (c) at the option of the Administrative
Agent, on any Business Day following a day on which the account officers of the
Administrative Agent active upon the Borrower's account become aware of the
existence of an Event of Default, (d) any Business Day on which the amount of
Revolving Credit Loans outstanding from Toronto Dominion plus Toronto Dominion's
Commitment Percentage of the sum of the Maximum Drawing Amount and any Unpaid
Reimbursement Obligations is equal to or greater than Toronto Dominion's
Commitment Percentage of the Total Revolving Credit Commitment, (e) the Business
Day immediately following any Business Day on which the amount of Revolving
Credit Loans outstanding increases or decreases by more than $2,000,000 as
compared to the previous Settlement Date, (f) any day on which any conversion of
a Base Rate Loan to a Eurodollar Rate Loan occurs, or (g) any Business Day on
which the amount of outstanding Revolving Credit Loans decreases.
Settling Lender. Seess.2.9.1.
---------------
Solvent. With respect to any Person as of any date of determination, (a)
the fair value of the property of such Person (both at fair valuation and at
present fair saleable value) is greater than the total amount of liabilities,
including contingent liabilities, of such Person, (b) the present fair saleable
value of the assets of such Person is not less than the amount that will be
required to pay the probable liquidity of such Person on its debts as they
become absolute and matured, (c) such Person is able to realize upon its assets
and pay its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (d) 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 (e) 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 after giving due
consideration to current and anticipated future capital requirements and current
and anticipated future business conduct and the prevailing practice in the
industry in which such Person is engaged. In computing the amount of contingent
liabilities at any time, such liabilities shall be computed in an amount which,
in light of the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability.
S&P. Standard & Poor's Ratings Group.
---
Station. All of the properties, assets and operating rights constituting a
system for transmitting radio or television signals from a transmitter licensed
by the FCC, together with any subsystem which is ancillary to such system and
including all the Stations set forth on Schedule 9.3(b) hereto..
Subordinated Debt. Collectively, (a) the Subordinated Notes and
Subordinated Guaranties and (b) any other unsecured Indebtedness (including
guaranties by Subsidiaries of the unsecured Indebtedness issued by the Borrower
or Subsidiaries of the Borrower) of the Borrower or any of its Subsidiaries
issued after the Funding Date that is expressly subordinated and made junior to
the payment and performance in full in cash of the Obligations, and evidenced as
such by a written instrument containing subordination provisions in form and
substance reasonably satisfactory to the Initial Agents and approved by the
Initial Agents in writing ("Additional Subordinated Debt"); provided that the
material terms and conditions of such Additional Subordinated Debt are less
restrictive than the terms and conditions set forth in this Credit Agreement
with respect to the Obligations but no more restrictive than the terms and
conditions of the Subordinated Notes as reasonably determined by the Initial
Agents. For the purposes of clarification, if any Additional Subordinated Debt
has an interest rate higher than the interest rate applicable to the
Subordinated Notes, such Additional Subordinated Debt shall not be deemed more
restrictive than the Subordinated Notes solely because of such higher interest
rate.
Subordinated Guaranties. The Guaranties of certain subsidiaries of the
Borrower of the obligations of the Borrower under the Subordinated Notes
pursuant to the Subordinated Note Indenture which are subordinated to the
repayment of the Obligations in accordance with the terms of the Subordinated
Note Indenture.
Subordinated Note Documents. Each of the documents, instruments (including
the Subordinated Notes) and other agreements entered into or delivered by the
Borrower (including, without limitation, the Subordinated Note Indenture) and/or
any Subsidiary of the Borrower relating to the issuance by the Borrower of the
Subordinated Notes and any guaranties or other documents related thereto, as in
effect on February 12, 1999, and as the same may be supplemented, amended or
modified from time to time in accordance with the terms hereof (including,
without limitation, ss.11.8) and thereof.
Subordinated Note Indenture. The Indenture, dated as of February 12, 1999,
by and between the Borrower and Bank of New York (as successor to IBJ Whitehall
Bank & Trust Company), as trustee thereunder, with respect to the Subordinated
Notes, as in effect on February 12, 1999 and as the same may be supplemented,
amended or modified from time to time in accordance with the terms hereof
(including, without limitation, ss.11.8) and thereof.
Subordinated Notes. The 8.125% Subordinated Notes due 2009 in the
--------------------
aggregate principal amount of $300,000,000 issued by the Borrower under
the Subordinated Note Indenture.
Subsidiary. Any corporation, association, trust, partnership, limited
liability company or other business entity of which the designated parent shall
at any time own directly or indirectly through a Subsidiary or Subsidiaries at
least a majority (by number of votes) of the outstanding Voting Stock. For
purposes of this Credit Agreement, with respect to the Borrower or any of its
Subsidiaries, "Subsidiary" shall include all Subsidiaries of the Borrower other
than Excluded Subsidiaries, except as otherwise expressly provided.
Subsidiary Pledge Agreement. The Fifth Amended and Restated Pledge
Agreement, dated or to be dated as of the date hereof, as the same may be
amended from time to time hereafter, among the Subsidiaries of the Borrower and
the Administrative Agent, in form and substance satisfactory to the
Administrative Agent.
Subsidiary Security Agreement. The Fifth Amended and Restated Subsidiary
Security Agreement, dated or to be dated as of the date hereof, as the same may
be amended from time to time hereafter, among the Subsidiaries of the Borrower,
the EIBC Subsidiaries and the Administrative Agent, in form and substance
satisfactory to the Administrative Agent.
Subsidiary Trademark Agreement. The Fourth Amended and Restated Subsidiary
Trademark Collateral Security and Pledge Agreement, dated or to be dated as of
the date hereof, as the same may be amended from time to time hereafter, among
the Subsidiaries of the Borrower, the EIBC Subsidiaries and the Administrative
Agent, in form and substance satisfactory to the Administrative Agent.
Syndication Agent. As defined in the preamble hereto.
-----------------
Synthetic Lease. Any lease of goods or other property, whether
----------------
real or personal, which is treated as an operating lease under GAAP and
as a loan or financing for U.S. income tax purposes.
Term Loans. Collectively, the Tranche A Term Loan and the
-----------
Tranche B Term Loan.
Term Note Records. Collectively, the Tranche A Note Records and
------------------
the Tranche B Note Records.
Test Period. In connection with the calculation of financial covenant
compliance on a Pro Forma Basis, the period of four (4) consecutive fiscal
quarters most recently ended prior to the relevant determination date for which
financial information is available for the Borrower and its Subsidiaries.
Title Insurance Company. With respect to each Mortgaged Property, as
applicable, Chicago Title Insurance Company; Continental Lawyers Title Insurance
Corporation; First American Title Insurance Company, Commonwealth Land Title
Insurance Company, and Illinois Commonwealth Property or any other title
insurance company reasonably acceptable to the Administrative Agent, and
collectively if the context requires all such companies.
Title Policy. In relation to each Mortgaged Property, an ALTA standard
form title insurance policy issued by the Title Insurance Company (with such
reinsurance or co-insurance as the Administrative Agent may require, any such
reinsurance to be with direct access endorsements) in such amount as may be
reasonably determined by the Administrative Agent insuring the priority of the
Mortgage of such Mortgaged Property and that the Borrower or one of its
Subsidiaries holds marketable fee simple or leasehold title (as applicable) to
such Mortgaged Property, subject only to the encumbrances permitted by such
Mortgage and which shall not contain exceptions for mechanics liens, persons in
occupancy or matters which would be shown by a survey (except as may be
permitted by such Mortgage), shall not insure over any matter except to the
extent that any such affirmative insurance is acceptable to the Administrative
Agent in its sole discretion, and shall contain such endorsements and
affirmative insurance as the Administrative Agent in its discretion may require,
including but not limited to (a) comprehensive endorsement, (b) variable rate of
interest endorsement, (c) usury endorsement, (d) revolving credit endorsement,
(e) tie-in endorsement, (f) doing business endorsement and (g) ALTA form 3.1
zoning endorsement.
Toronto Dominion. Toronto Dominion (Texas), Inc., a Delaware
-----------------
corporation, in its individual capacity.
Total Commitment. The sum of (a) the Total Revolving Credit Commitment,
plus (b) sum of the Tranche A Commitments of the Tranche A Lenders, plus (c) the
sum of the Tranche B Commitments of the Tranche B Lenders.
Total Leverage Ratio. As at any date of determination, the ratio of (a)
Consolidated Total Funded Debt outstanding on such date to (b) Consolidated
Operating Cash Flow for the Reference Period ending on such date.
Total Percentage. With respect to each Lender without duplication, the
Term Loans and Revolving Credit Commitments (or, if the Revolving Credit
Commitments are terminated, Revolving Credit Loans, Letter of Credit
Participations in Unpaid Reimbursement Obligations, and participating interests
in the risk relating to outstanding Letters of Credit) held by such Lender as a
percentage of the sum of (a) the outstanding principal amount of the Term Loans
plus (b) the greater of (i) the Total Revolving Credit Commitment and (ii) the
outstanding principal amount of the Revolving Credit Loans, Unpaid Reimbursement
Obligations and the Maximum Drawing Amount of Letters of Credit.
Total Revolving Credit Commitment. The sum of the Revolving Credit
Commitments of the Revolving Credit Lenders, as in effect from time to time,
which as of the Funding Date shall be equal to the aggregate principal amount of
$320,000,000, as such amount may be decreased from time to time pursuant to the
terms hereof or increased thereafter pursuant to the terms and conditions set
forth in ss.16.
Trademark Agreements. Collectively, the Borrower Trademark
----------------------
Agreement and the Subsidiary Trademark Agreement.
Trades. Those assets and liabilities of the Borrower and any of its
Subsidiaries which do not represent the right to receive payment in cash or the
obligation to make payment in cash and which arise pursuant to so-called trade
or barter transactions.
Tranche. Collectively, or individually as the context indicates, the
Revolving Credit Loans if any are outstanding, and/or the Tranche A Term Loan
and/or the Tranche B Term Loan, and for purposes of ss.16 only, any new Loan
provided to the Borrower in accordance with the terms and conditions set forth
in such ss.16.
Tranche A Commitment. With respect to each Tranche A Lender, the agreement
of such Person to make a Tranche A Term Loan on the Funding Date in the amount
set forth on Schedule 1 and, if applicable, any additional commitment to make a
Tranche A Term Loan as provided in ss.16 or as such amount may be adjusted
pursuant to ss.18.
Tranche A Lenders. Each Lender which has a Tranche A Commitment set forth
opposite its name on Schedule 1 hereto and any other Person who becomes an
assignee of any rights and obligations of a Tranche A Lender pursuant to ss.18
or who agrees to advance additional Tranche A Term Loans pursuant to ss.16.
Tranche A Maturity Date. February 28, 2009; provided that if on March 15,
2008, the Subordinated Notes remain outstanding and the maturity date of such
Subordinated Notes shall not have been extended until March 15, 2010 or later,
the Tranche A Maturity Date shall be September 15, 2008.
Tranche A Note Record. A Record with respect to a Tranche A Term
----------------------
Note.
Tranche A Reduction Date. Seess.3.3.
------------------------
Tranche A Reduction Percentage. Seess.3.3.
------------------------------
Tranche A Term Loan. The term loan made or to be made by the Tranche A
Lenders to the Borrower on the Funding Date in the aggregate principal amount of
$480,000,000 pursuant to ss.3.1, as such amount may be increased thereafter
pursuant to the terms and conditions set forth in ss.16.
Tranche A Term Notes. Seess.3.2.
--------------------
Tranche B Commitment. With respect to each Tranche B Lender, the agreement
of such Person to make a Tranche B Term Loan on the Funding Date in the amount
set forth on Schedule 1 or any additional commitment to make a Tranche B Term
Loan as provided in ss.16 or as such amount may be adjusted pursuant to ss.18
hereof.
Tranche B Lenders. Each Lender which has a Tranche B Commitment set forth
opposite its name on Schedule 1 and any other Person who becomes an assignee of
any rights and obligations of a Tranche B Lender pursuant to ss.18 or who agrees
to advance additional Tranche B Term Loans pursuant to ss.16.
Tranche B Maturity Date. August 31, 2009; provided that if on March 15,
2008, the Subordinated Notes remain outstanding and the maturity date of such
Subordinated Notes shall not have been extended until March 15, 2010 or later,
the Tranche B Maturity Date shall be December 15, 2008.
Tranche B Note Record. A Record with respect to a Tranche B Term
----------------------
Note.
Tranche B Reduction Date. Seess.4.3.
------------------------
Tranche B Reduction Percentage. Seess.4.3.
------------------------------
Tranche B Term Loan. The term loan made or to be made by the Tranche B
Lenders to the Borrower on the Funding Date in the aggregate principal amount of
$600,000,000 pursuant to ss.4.1, as such amount may be increased thereafter
pursuant to the terms and conditions set forth in ss.16.
Tranche B Term Notes. Seess.4.2.
--------------------
Type. As to any Revolving Credit Loan or all or any portion of the Tranche
A Term Loan or Tranche B Term Loan, its nature as a Base Rate Loan or a
Eurodollar Rate Loan.
UCC. The Uniform Commercial Code as in effect in the State of
---
New York.
Unpaid Reimbursement Obligation. Any Reimbursement Obligation for which
the Borrower does not reimburse the Administrative Agent and the Revolving
Credit Lenders on the date specified in, and in accordance with, ss.6.2.
Voting Stock. Capital Stock or similar interests, of any class or classes
(however designated), the holders of which are at the time entitled, as such
holders, to vote for the election of a majority of the directors (or persons
performing similar functions) of the Person involved, whether or not the right
so to vote exists by reason of the happening of a contingency.
1.2. Rules of Interpretation.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural
includes the singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by GAAP applied on a consistent basis by the accounting
entity to which they refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by GAAP, which terms
are defined in the UCC have the meanings assigned to them therein, with
the term "instrument" being that defined under Article 9 of the UCC.
(h) Reference to a particular "ss." refers to that section of this
Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like
import shall refer to this Credit Agreement as a whole and not to any
particular section or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, 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."
(k) This Credit Agreement and the 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,
however, cumulative and are to be performed in accordance with the terms
thereof.
(l) This Credit Agreement and the other Loan Documents are the result
of negotiation among, and have been reviewed by counsel to, among others,
the Administrative Agent and the Borrower and are the product of
discussions and negotiations among all parties. Accordingly, this Credit
Agreement and the other Loan Documents are not intended to be construed
against the Administrative Agent or any of the Lenders merely on account
of the Administrative Agent's or any Lender's involvement in the
preparation of such documents.
2. THE REVOLVING CREDIT FACILITY.
2.1. Commitment to Lend. Subject to the terms and conditions set forth in
this Credit Agreement, each of the Revolving Credit Lenders severally agrees to
lend to the Borrower and the Borrower may borrow, repay, and reborrow from time
to time from the Funding Date up to but not including the Revolving Credit Loan
Maturity Date upon notice by the Borrower to the Administrative Agent given in
accordance with ss.2.6, such sums as are requested by the Borrower up to a
maximum aggregate amount outstanding (after giving effect to all amounts
requested) at any one time equal to such Revolving Credit Lender's Revolving
Credit Commitment minus such Revolving Credit Lender's Commitment Percentage of
the sum of the Maximum Drawing Amount and all Unpaid Reimbursement Obligations,
provided that the sum of the outstanding aggregate amount of all Revolving
Credit Loans (after giving effect to all amounts requested) plus the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations shall not at any time
exceed the Total Revolving Credit Commitment at such time. The Revolving Credit
Loans shall be made pro rata in accordance with each Revolving Credit Lender's
Commitment Percentage of the Total Revolving Credit Commitment. Each request for
a Revolving Credit Loan hereunder shall constitute a representation and warranty
by the Borrower that the conditions set forth in ss.13 and ss.14, in the case of
the initial Revolving Credit Loans to be made on the Funding Date, and ss.14, in
the case of all other Revolving Credit Loans, have been satisfied on the date of
such request.
2.2. Commitment Fee. The Borrower agrees to pay to the Administrative
Agent for the accounts of the Revolving Credit Lenders in accordance with their
respective Commitment Percentages of the Total Revolving Credit Commitment a
commitment fee (the "Commitment Fee") calculated at the rate (a) at any time
when the Total Leverage Ratio, determined as at the last day of the Reference
Period most recently ended, equals or exceeds 6.00:1.00, 0.500% per annum, (b)
at any time when the Total Leverage Ratio, determined as at the last day of the
Reference Period most recently ended, equals or exceeds 5.00:1.00, but is less
than 6.00:1.00, 0.375% per annum, and (c) at any time when the Total Leverage
Ratio, determined as at the last day of the Reference Period most recently
ended, is less than 5.00:1.00, 0.250% per annum on the average daily amount
during each calendar quarter or portion thereof from the Funding Date to the
Revolving Credit Loan Maturity Date by which the Total Revolving Credit
Commitment minus the sum of the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations exceeds the outstanding amount of Revolving Credit
Loans during such calendar quarter. The Commitment Fee shall be payable
quarterly in arrears on each Interest Payment Date with respect to Base Rate
Loans, with a final payment on the Revolving Credit Loan Maturity Date or any
earlier date on which the Revolving Credit Commitments shall terminate.
2.3. Reduction of Revolving Credit Commitment. The Borrower shall have the
right at any time and from time to time upon five (5) Business Days prior
written notice to the Administrative Agent to reduce by $5,000,000 or an
integral multiple thereof or to terminate entirely the Total Revolving Credit
Commitment, whereupon the Revolving Credit Commitments of the Revolving Credit
Lenders shall be reduced pro rata in accordance with their respective Commitment
Percentages of the Total Revolving Credit Commitment of the amount specified in
such notice or, as the case may be, terminated. Promptly after receiving any
notice of the Borrower delivered pursuant to this ss.2.3, the Administrative
Agent will notify the Revolving Credit Lenders of the substance thereof. Upon
the effective date of any such reduction or termination, the Borrower shall pay
to the Administrative Agent for the respective accounts of the Revolving Credit
Lenders the full amount of any Commitment Fee then accrued on the amount of the
reduction. No reduction or termination of the Revolving Credit Commitments may
be reinstated. In addition, the Total Revolving Credit Commitment shall be
reduced in accordance with ss.5.
2.4. The Revolving Credit Notes. The Revolving Credit Loans shall be
evidenced by separate promissory notes of the Borrower in substantially the form
of Exhibit A hereto (each a "Revolving Credit Note"), and completed with
appropriate insertions. One Revolving Credit Note shall be payable to the order
of each Revolving Credit Lender in a principal amount equal to such Revolving
Credit Lender's Revolving Credit Commitment or, if less, the outstanding amount
of all Revolving Credit Loans made by such Revolving Credit Lender, plus
interest accrued thereon, as set forth below. The Borrower irrevocably
authorizes each Revolving Credit Lender to make or cause to be made, at or about
the time of the Drawdown Date of any Revolving Credit Loan or at the time of
receipt of any payment of principal on such Revolving Credit Lender's Revolving
Credit Note, an appropriate notation on such Revolving Credit Lender's Revolving
Credit Note Record reflecting the making of such Revolving Credit Loan or (as
the case may be) the receipt of such payment. The outstanding amount of the
Revolving Credit Loans set forth on such Revolving Credit Lender's Revolving
Credit Note Record shall be prima facie evidence of the principal amount thereof
owing and unpaid to such Revolving Credit Lender, but the failure to record, or
any error in so recording, any such amount on such Revolving Credit Lender's
Revolving Credit Note Record shall not limit or otherwise affect the obligations
of the Borrower hereunder or under any Revolving Credit Note to make payments of
principal of or interest on any Revolving Credit Note when due.
2.5. Interest on Revolving Credit Loans. Except as otherwise
-------------------------------------
provided inss.7.11,
(a) Each Revolving Credit Loan which is a Base Rate Loan shall bear
interest for each day on which such Base Rate Loan is outstanding at the
rate per annum equal to the Base Rate plus the Applicable Margin in effect
from time to time with respect to Revolving Credit Loans which are Base
Rate Loans.
(b) Each Revolving Credit Loan which is a Eurodollar Rate Loan shall
bear interest for each Interest Period applicable thereto at the rate per
annum equal to the Eurodollar Rate determined for each Interest Period
plus the Applicable Margin in effect from time to time with respect to
Revolving Credit Loans which are Eurodollar Rate Loans.
The Borrower promises to pay interest on each Revolving Credit Loan in arrears
on each Interest Payment Date with respect thereto.
2.6. Requests for Revolving Credit Loans.
The Borrower shall give to the Administrative Agent written notice in the
form of Exhibit B hereto (or telephonic notice confirmed in a writing in the
form of Exhibit B hereto) of each Revolving Credit Loan requested hereunder (a
"Loan Request") no less than (a) one (1) Business Day prior to the proposed
Drawdown Date of any Base Rate Loan and (b) three (3) Eurodollar Business Days
prior to the proposed Drawdown Date of any Eurodollar Rate Loan. Each such
notice shall specify (i) the principal amount of the Revolving Credit Loan
requested, (ii) the proposed Drawdown Date of such Revolving Credit Loan, (iii)
the Type of such Revolving Credit Loan and (iv) the Interest Period for such
Revolving Credit Loan. Promptly upon receipt of any such notice, the
Administrative Agent shall notify each of the Revolving Credit Lenders thereof.
Each Loan Request shall be irrevocable and binding on the Borrower and shall
obligate the Borrower to accept the Revolving Credit Loan requested from the
Revolving Credit Lenders on the proposed Drawdown Date. Each Loan Request shall
be in a minimum aggregate amount of (a) in the case of Base Rate Loans, $500,000
or in integral multiples of $100,000 in excess thereof and (b) in the case of
Eurodollar Rate Loans, $1,000,000 or in integral multiples of $100,000 in excess
thereof; provided, that no more than twelve (12) Eurodollar Rate Loans having
different Interest Periods may be outstanding at any time.
2.7. Conversion Options.
2.7.1. Conversion to Different Type of Revolving Credit Loan. The
Borrower may elect from time to time to convert any outstanding Revolving
Credit Loan to a Revolving Credit Loan of another Type, provided that with
respect to any such conversion of a Base Rate Loan to a Eurodollar Rate
Loan, the Borrower shall give the Administrative Agent at least three (3)
Eurodollar Business Days prior written notice of such election; and no
Revolving Credit Loan may be converted into a Eurodollar Rate Loan when
any Event of Default has occurred and is continuing. On the date on which
such conversion is being made each Revolving Credit Lender shall take such
action as is necessary to transfer its Commitment Percentage of such
Revolving Credit Loans to its Domestic Lending Office or its Eurodollar
Lending Office, as the case may be. All or any part of outstanding
Revolving Credit Loans of any Type may be converted into a Revolving
Credit Loan of another Type as provided herein; provided that if a
Eurodollar Rate Loan is converted to a Base Rate Loan on a day which is
not the last day of the Interest Period relating thereto, the Borrower
shall indemnify the Lenders for any additional costs relating thereto
pursuant to ss.7.10. Each Conversion Request relating to the conversion of
a Revolving Credit Loan to a Eurodollar Rate Loan shall be irrevocable by
the Borrower.
2.7.2. Continuation of Type of Revolving Credit Loan. Any Revolving
Credit Loan of any Type may be continued as a Revolving Credit Loan of the
same Type upon the expiration of an Interest Period with respect thereto
by compliance by the Borrower with the notice provisions contained in
ss.2.7.1; provided that no Eurodollar Rate Loan may be continued as such
when any Event of Default has occurred and is continuing, but shall be
automatically converted to a Base Rate Loan on the last day of the first
Interest Period relating thereto ending during the continuance of any
Event of Default of which officers of the Administrative Agent active upon
the Borrower's account have actual knowledge. In the event that the
Borrower fails to provide any such notice with respect to the continuation
of any Eurodollar Rate Loan as such, then such Eurodollar Rate Loan shall
be automatically converted to a Base Rate Loan on the last day of the
Interest Period relating thereto. The Administrative Agent shall notify
the Revolving Credit Lenders promptly when any such automatic conversion
contemplated by this ss.2.7 is scheduled to occur.
2.7.3. Eurodollar Rate Loans. Any conversion to or from Eurodollar
Rate Loans shall be in such amounts and be made pursuant to such elections
so that, after giving effect thereto, the aggregate principal amount of
all Eurodollar Rate Loans having the same Interest Period shall not be
less than $1,000,000 or an integral multiple of $100,000 in excess
thereof. No more than twelve (12) Eurodollar Rate Loans having different
Interest Periods may be outstanding at any time.
2.8. Funds for Revolving Credit Loans.
2.8.1. Funding Procedures. Not later than 12:00 noon (Houston, Texas
time) on the proposed Drawdown Date of any Revolving Credit Loans, each of
the Revolving Credit Lenders will make available to the Administrative
Agent, at the Administrative Agent's Office, in immediately available
funds, the amount of such Revolving Credit Lender's Commitment Percentage
of the amount of the requested Revolving Credit Loans. Upon receipt from
each Revolving Credit Lender of such amount, and upon receipt of the
documents required by ss.ss.13 and 14 and the satisfaction of the other
conditions set forth therein, to the extent applicable, the Administrative
Agent will make available to the Borrower the aggregate amount of such
Revolving Credit Loans made available to the Administrative Agent by the
Revolving Credit Lenders. The failure or refusal of any Revolving Credit
Lender to make available to the Administrative Agent at the aforesaid time
and place on any Drawdown Date the amount of its Commitment Percentage of
the requested Revolving Credit Loans shall not relieve any other Revolving
Credit Lender from its several obligation hereunder to make available to
the Administrative Agent the amount of such other Revolving Credit
Lender's Commitment Percentage of any requested Revolving Credit Loans.
2.8.2. Advances by Administrative Agent. The Administrative Agent
may, unless notified to the contrary by any Revolving Credit Lender prior
to a Drawdown Date, assume that such Revolving Credit Lender has made
available to the Administrative Agent on such Drawdown Date the amount of
such Revolving Credit Lender's Commitment Percentage of the Revolving
Credit Loans to be made on such Drawdown Date, and the Administrative
Agent may (but it shall not be required to), in reliance upon such
assumption, make available to the Borrower a corresponding amount. If any
Revolving Credit Lender makes available to the Administrative Agent such
amount on a date after such Drawdown Date, such Revolving Credit Lender
shall pay to the Administrative Agent on demand an amount equal to the
product of (a) the average computed for the period referred to in clause
(c) below, of the weighted average interest rate paid by the
Administrative Agent for federal funds acquired by the Administrative
Agent during each day included in such period, times (b) the amount of
such Revolving Credit Lender's Commitment Percentage of such Revolving
Credit Loans, times (c) a fraction, the numerator of which is the number
of days that elapse from and including such Drawdown Date to the date on
which the amount of such Revolving Credit Lender's Commitment Percentage
of such Revolving Credit Loans shall become immediately available to the
Administrative Agent, and the denominator of which is 360. A statement of
the Administrative Agent submitted to such Revolving Credit Lender with
respect to any amounts owing under this paragraph shall be prima facie
evidence of the amount due and owing to the Administrative Agent by such
Revolving Credit Lender. If the amount of such Revolving Credit Lender's
Commitment Percentage of such Revolving Credit Loans is not made available
to the Administrative Agent by such Revolving Credit Lender within three
(3) Business Days following such Drawdown Date, the Administrative Agent
shall be entitled to recover such amount from the Borrower on demand, with
interest thereon at the rate per annum applicable to the Revolving Credit
Loans made on such Drawdown Date.
2.9. Settlements.
2.9.1. General. On each Settlement Date, the Administrative Agent
shall, not later than 12:00 noon (Houston, Texas time), give telephonic or
facsimile notice (a) to the Revolving Credit Lenders and the Borrower of
the respective outstanding amount of Revolving Credit Loans made by the
Administrative Agent on behalf of the Revolving Credit Lenders from the
immediately preceding Settlement Date through the close of business on the
prior day and the amount of any Eurodollar Rate Loans to be made
(following the giving of notice pursuant to ss.2.6) on such date pursuant
to a Loan Request and (b) to the Revolving Credit Lenders of the amount (a
"Settlement Amount") that each Revolving Credit Lender (a "Settling
Lender") shall pay to effect a Settlement of any Revolving Credit Loan. A
statement of the Administrative Agent submitted to the Revolving Credit
Lenders and the Borrower or to the Revolving Credit Lenders with respect
to any amounts owing under this ss.2.9 shall be prima facie evidence of
the amount due and owing. Each Settling Lender shall, not later than 4:00
p.m. (Houston, Texas time) on such Settlement Date, effect a wire transfer
of immediately available funds to the Administrative Agent in the amount
of the Settlement Amount for such Settling Lender. All funds advanced by
any Revolving Credit Lender as a Settling Lender pursuant to this ss.2.9
shall for all purposes be treated as a Revolving Credit Loan made by such
Settling Lender to the Borrower and all funds received by any Revolving
Credit Lender pursuant to this ss.2.9 shall for all purposes be treated as
repayment of amounts owed with respect to Revolving Credit Loans made by
such Revolving Credit Lender. In the event that any bankruptcy,
reorganization, liquidation, receivership or similar cases or proceedings
in which the Borrower is a debtor prevent a Settling Lender from making
any Revolving Credit Loan to effect a Settlement as contemplated hereby,
such Settling Lender will make such dispositions and arrangements with the
other Revolving Credit Lenders with respect to such Revolving Credit
Loans, either by way of purchase of participations, distribution, pro
tanto assignment of claims, subrogation or otherwise as shall result in
each Revolving Credit Lender's share of the outstanding Revolving Credit
Loans being equal, as nearly as may be, to such Revolving Credit Lender's
Commitment Percentage of the outstanding amount of the Revolving Credit
Loans.
2.9.2. Failure to Make Funds Available. The Administrative Agent may,
unless notified to the contrary by any Settling Lender prior to a
Settlement Date, assume that such Settling Lender has made or will make
available to the Administrative Agent on such Settlement Date the amount
of such Settling Lender's Settlement Amount, and the Administrative Agent
may (but it shall not be required to), in reliance upon such assumption,
make available to the Borrower a corresponding amount. If any Settling
Lender makes available to the Administrative Agent such amount on a date
after such Settlement Date, such Settling Lender shall pay to the
Administrative Agent on demand an amount equal to the product of (a) the
average computed for the period referred to in clause (c) below, of the
weighted average interest rate paid by the Administrative Agent for
federal funds acquired by the Administrative Agent during each day
included in such period, times (b) the amount of such Settlement Amount,
times (c) a fraction, the numerator of which is the number of days that
elapse from and including such Settlement Date to the date on which the
amount of such Settlement Amount shall become immediately available to the
Administrative Agent, and the denominator of which is 360. A statement of
the Administrative Agent submitted to such Settling Lender with respect to
any amounts owing under this ss.2.9.2 shall be prima facie evidence of the
amount due and owing to the Administrative Agent by such Settling Lender.
If such Settling Lender's Settlement Amount is not made available to the
Administrative Agent by such Settling Lender within three (3) Business
Days following such Settlement Date, the Administrative Agent shall be
entitled to recover such amount from the Borrower on demand, with interest
thereon at the rate per annum applicable to the Revolving Credit Loans as
of such Settlement Date.
2.9.3. No Effect on Other Revolving Credit Lenders. The failure or
refusal of any Settling Lender to make available to the Administrative
Agent at the aforesaid time and place on any Settlement Date the amount of
such Settling Lender's Settlement Amount shall not (a) relieve any other
Settling Lender from its several obligations hereunder to make available
to the Administrative Agent the amount of such other Settling Lender's
Settlement Amount or (b) impose upon any Revolving Credit Lender, other
than the Settling Lender so failing or refusing, any liability with
respect to such failure or refusal or otherwise increase the Revolving
Credit Commitment of such other Revolving Credit Lender.
2.10. Repayment Of The Revolving Credit Loans.
2.10.1. Maturity. The Borrower promises to pay on the Revolving
Credit Loan Maturity Date, and there shall become absolutely due and
payable on the Revolving Credit Loan Maturity Date, all of the Revolving
Credit Loans outstanding on such date, together with any and all accrued
and unpaid interest thereon.
2.10.2. Mandatory Repayments of Revolving Credit Loans. If at any
time the sum of the outstanding amount of the Revolving Credit Loans, the
Maximum Drawing Amount and all Unpaid Reimbursement Obligations exceeds
the Total Revolving Credit Commitment at such time, then the Borrower
shall immediately pay the amount of such excess to the Administrative
Agent for the respective accounts of the Revolving Credit Lenders for
application: first, to any Unpaid Reimbursement Obligations; second, to
the Revolving Credit Loans; and third, to provide to the Administrative
Agent cash collateral for Reimbursement Obligations as contemplated by
ss.6.2(b) and (c). Each payment of any Unpaid Reimbursement Obligations or
prepayment of Revolving Credit Loans shall be allocated among the
Revolving Credit Lenders, in proportion, as nearly as practicable, to each
Reimbursement Obligation or (as the case may be) the respective unpaid
principal amount of each Revolving Credit Lender's Revolving Credit Note,
with adjustments to the extent practicable to equalize any prior payments
or repayments not exactly in proportion. In addition, the Borrower shall
repay the Revolving Credit Loans in accordance with ss.5.
2.10.3. Optional Repayments of Revolving Credit Loans. The Borrower
shall have the right, at its election, to repay the outstanding amount of
the Revolving Credit Loans, as a whole or in part, at any time without
penalty or premium, provided that no Eurodollar Rate Loans may be prepaid
pursuant to this ss.2.10.3 except on the last day of the Interest Period
relating thereto unless breakage costs incurred by the Revolving Credit
Lenders in connection therewith are paid by the Borrower in accordance
with ss.7.10. The Borrower shall give the Administrative Agent, no later
than 11:00 a.m. (Houston, Texas time) at least one (1) Business Day prior
written notice of any proposed prepayment pursuant to this ss.2.10.3 of
Base Rate Loans, and three (3) Eurodollar Business Days notice of any
proposed prepayment pursuant to this ss.2.10.3 of Eurodollar Rate Loans,
in each case specifying the proposed date of prepayment of Revolving
Credit Loans and the principal amount to be prepaid. Each such partial
prepayment of the Revolving Credit Loans shall be in an integral multiple
of $5,000,000, shall be accompanied by the payment of accrued interest on
the principal prepaid to the date of prepayment and shall be applied, in
the absence of instruction by the Borrower, first to the principal of Base
Rate Loans and then to the principal of Eurodollar Rate Loans. Each
partial prepayment shall be allocated among the Revolving Credit Lenders,
in proportion, as nearly as practicable, to the respective unpaid
principal amount of each Revolving Credit Lender's Revolving Credit Note,
with adjustments to the extent practicable to equalize any prior
repayments not exactly in proportion.
3. THE TRANCHE A TERM LOAN.
3.1. Commitment to Lend. Subject to the terms and conditions set forth in
this Credit Agreement, each Tranche A Lender agrees to lend to the Borrower on
the Funding Date the amount of its Commitment Percentage of the Tranche A Term
Loan.
3.2. The Tranche A Term Notes. The Tranche A Term Loan shall be evidenced
by separate promissory notes of the Borrower in substantially the form of
Exhibit C hereto (each a "Tranche A Term Note"), and completed with appropriate
insertions. One Tranche A Term Note shall be payable to the order of each
Tranche A Lender in a principal amount equal to such Tranche A Lender's
Commitment Percentage of the Tranche A Term Loan and representing the obligation
of the Borrower to pay to such Tranche A Lender such principal amount or, if
less, the outstanding amount of such Tranche A Lender's Commitment Percentage of
the Tranche A Term Loan, plus interest accrued thereon, as set forth below. The
Borrower irrevocably authorizes each Tranche A Lender to make or cause to be
made a notation on such Tranche A Lender's Tranche A Note Record reflecting the
original principal amount of such Tranche A Lender's Commitment Percentage of
the Tranche A Term Loan and, at or about the time of such Tranche A Lender's
receipt of any principal payment on such Tranche A Lender's Tranche A Term Note,
an appropriate notation on such Tranche A Lender's Tranche A Note Record
reflecting such payment. The aggregate unpaid amount set forth on such Tranche A
Lender's Tranche A Note Record shall be prima facie evidence of the principal
amount thereof owing and unpaid to such Tranche A Lender, but the failure to
record, or any error in so recording, any such amount on such Tranche A Lender's
Tranche A Note Record shall not affect the obligations of the Borrower hereunder
or under any Trance A Term Note to make payments of principal of and interest on
any Tranche A Term Note when due.
3.3. Mandatory Prepayment of Tranche A Term Loan; Scheduled Amortization.
On each date referenced in the table below (each a "Tranche A Reduction Date"),
the Borrower promises to pay to the Administrative Agent for the account of the
Tranche A Lenders an amount equal to the product of (a) the Tranche A Reduction
Percentage set forth below opposite such Tranche A Reduction Date multiplied by
(b) the principal amount of the Tranche A Term Loan outstanding on December 1,
2003; provided that the final payment shall be on the Tranche A Maturity Date
regardless of whether it occurs on September 15, 2008 or thereafter and such
final payment shall be adjusted to equal the entire then unpaid balance of
(including principal of, interest on and other amounts payable in respect of)
the Tranche A Term Loan and any scheduled amortization dates set forth in the
table below which occur after such Tranche A Maturity Date shall be disregarded:
-------------------------------------------------
Tranche A Reduction Tranche A Reduction
Date Percentage
-------------------------------------------------
-------------------------------------------------
12/1/03 4.250%
-------------------------------------------------
-------------------------------------------------
3/1/04, 6/1/04, 9/1/04 4.375%
and 12/1/04
-------------------------------------------------
-------------------------------------------------
3/1/05, 6/1/05, 9/1/05 4.625%
and 12/1/05
-------------------------------------------------
-------------------------------------------------
3/1/06, 6/1/06, 9/1/06 4.750%
and 12/1/06
-------------------------------------------------
-------------------------------------------------
3/1/07, 6/1/07, 9/1/07 5.000%
and 12/1/07
-------------------------------------------------
-------------------------------------------------
3/1/08, 6/1/08, 9/1/08 5.125%
and 12/1/08
-------------------------------------------------
-------------------------------------------------
2/28/09 0.250%
-------------------------------------------------
In addition, the Borrower shall repay the Tranche A Term Loan in
accordance with ss.5.
3.4. Optional Prepayment of Tranche A Term Loan. The Borrower shall have
the right at any time to prepay the Tranche A Term Notes on or before the
Tranche A Maturity Date, as a whole, or in part, upon not less than three (3)
Business Days prior written notice to the Administrative Agent, without premium
or penalty, provided that (a) each partial prepayment shall be in the principal
amount of $5,000,000 or an integral multiple thereof, (b) no portion of the
Tranche A Term Loan which is a Eurodollar Rate Loan may be prepaid pursuant to
this ss.3.4 except on the last day of the Interest Period relating thereto
unless breakage costs incurred by the Tranche A Lenders in connection therewith
are paid by the Borrower in accordance with ss.7.10, and (c) each partial
prepayment shall be allocated among the Tranche A Lenders, in proportion, as
nearly as practicable, to the respective outstanding amount of each Tranche A
Lender's Tranche A Term Note, with adjustments to the extent practicable to
equalize any prior prepayments not exactly in proportion. Any prepayment of
principal of the Tranche A Term Loan shall include all interest accrued to the
date of prepayment and shall be applied to reduce each remaining scheduled
installments of principal due on the Tranche A Term Loan ratably. No amount
repaid with respect to the Tranche A Term Loan may be reborrowed.
3.5. Interest on Tranche A Term Loan.
3.5.1. Interest Rates. Except as otherwise provided in ss.7.11, the
Tranche A Term Loan shall bear interest at the following rates:
(a) To the extent that all or any portion of the Tranche A Term
Loan bears interest at the Base Rate, the Tranche A Term Loan or such
portion shall bear interest at the rate per annum equal to the Base
Rate plus the Applicable Margin in effect from time to time with
respect to that portion of the Tranche A Term Loan comprised of Base
Rate Loans.
(b) To the extent that all or any portion of the Tranche A Term
Loan bears interest during any Interest Period at the Eurodollar
Rate, the Tranche A Term Loan or such portion shall bear interest
during such Interest Period at the rate per annum equal to the
Eurodollar Rate determined for such Interest Period plus the
Applicable Margin in effect from time to time with respect to that
portion of the Tranche A Term Loan comprised of Eurodollar Rate
Loans.
The Borrower promises to pay interest on the Tranche A Term Loan or any
portion thereof outstanding in arrears on each Interest Payment Date.
3.5.2. Notification by Borrower. The Borrower shall notify the
Administrative Agent, such notice to be irrevocable, at least three (3)
Eurodollar Business Days prior to the Drawdown Date of the Tranche A Term
Loan if all or any portion of the Tranche A Term Loan is to bear interest
at the Eurodollar Rate. After the Tranche A Term Loan has been made, the
provisions of ss.2.7 shall apply mutatis mutandis with respect to all or
any portion of the Tranche A Term Loan so that the Borrower may have the
same interest rate options with respect to all or any portion of the
Tranche A Term Loan as it would be entitled to with respect to the
Revolving Credit Loans.
3.5.3. Amounts, etc. Any portion of the Tranche A Term Loan bearing
interest at the Eurodollar Rate relating to any Interest Period shall be
in the amount of $1,000,000 or in integral multiples of $100,000 in excess
thereof. The number of Eurodollar Rate Loans having different Interest
Periods outstanding at any time shall not exceed ten (10). No Interest
Period relating to the Tranche A Term Loan or any portion thereof bearing
interest at the Eurodollar Rate shall extend beyond the date on which a
regularly scheduled installment payment of the principal of the Tranche A
Term Loan is to be made unless a portion of the Tranche A Term Loan at
least equal to such installment payment has an Interest Period ending on
such date or is then bearing interest at the Base Rate.
4. THE TRANCHE B TERM LOAN.
4.1. Commitment to Lend. Subject to the terms and conditions set forth in
this Credit Agreement, each Tranche B Lender agrees to lend to the Borrower on
the Funding Date the amount of its Commitment Percentage of the Tranche B Term
Loan.
4.2. The Tranche B Term Notes. The Tranche B Term Loan shall be evidenced
by separate promissory notes of the Borrower in substantially the form of
Exhibit D hereto (each a "Tranche B Term Note"), and completed with appropriate
insertions. One Tranche B Term Note shall be payable to the order of each
Tranche B Lender in a principal amount equal to such Tranche B Lender's
Commitment Percentage of the Tranche B Term Loan and representing the obligation
of the Borrower to pay to such Tranche B Lender such principal amount or, if
less, the outstanding amount of such Tranche B Lender's Commitment Percentage of
the Tranche B Term Loan, plus interest accrued thereon, as set forth below. The
Borrower irrevocably authorizes each Tranche B Lender to make or cause to be
made a notation on such Tranche B Lender's Tranche B Note Record reflecting the
original principal amount of such Tranche B Lender's Commitment Percentage of
the Tranche B Term Loan and, at or about the time of such Tranche B Lender's
receipt of any principal payment on such Tranche B Lender's Tranche B Term Note,
an appropriate notation on such Tranche B Lender's Tranche B Note Record
reflecting such payment. The aggregate unpaid amount set forth on such Tranche B
Lender's Tranche B Note Record shall be prima facie evidence of the principal
amount thereof owing and unpaid to such Tranche B Lender, but the failure to
record, or any error in so recording, any such amount on such Tranche B Lender's
Tranche B Note Record shall not affect the obligations of the Borrower hereunder
or under any Tranche B Term Note to make payments of principal of and interest
on any Tranche B Term Note when due.
4.3. Mandatory Prepayment of Tranche B Term Loan; Scheduled
Amortization.
On each date referenced in the table below (each a "Tranche B Reduction
Date"), the Borrower promises to pay to the Administrative Agent for the account
of the Tranche B Lenders an amount equal to the product of (a) the Tranche B
Reduction Percentage set forth below opposite such Tranche B Reduction Date
multiplied by (b) the principal amount of the Tranche B Term Loan outstanding on
December 1, 2003; provided that the final payment shall be on the Tranche B
Maturity Date regardless of whether such date occurs on December 15, 2008 or
thereafter and such final payment shall be adjusted to equal the entire then
unpaid balance of (including principal of, interest on and other amounts payable
in respect of) the Tranche B Term Loan and any scheduled amortization dates set
forth in the table below which occur after such Tranche B Maturity Date shall be
disregarded:
-------------------------------------------------
Tranche B Reduction Tranche B Reduction
Date Percentage
-------------------------------------------------
-------------------------------------------------
12/01/03, 3/01/04, 0.250%
6/01/04, 9/01/04,
12/01/04, 3/01/05,
6/01/05, 9/01/05,
12/01/05, 3/01/06,
6/01/06, 9/01/06,
12/01/06, 3/01/07,
6/01/07, 9/01/07,
12/01/07, 3/01/08,
6/01/08, 9/01/08,
12/01/08 and 3/1/09
-------------------------------------------------
-------------------------------------------------
6/01/09 and 8/31/09 47.25%
-------------------------------------------------
In addition, the Borrower shall repay the Tranche B Loan in
accordance with ss.5.
4.4. Optional Prepayment of Tranche B Term Loan. The Borrower shall have
the right at any time to prepay the Tranche B Term Notes on or before the
Tranche B Maturity Date, as a whole, or in part, upon not less than three (3)
Business Days prior written notice to the Administrative Agent, without premium
or penalty, provided that (a) each partial prepayment shall be in the principal
amount of $5,000,000 or an integral multiple thereof, (b) no portion of the
Tranche B Term Loan bearing interest at the Eurodollar Rate may be prepaid
pursuant to this ss.4.4 except on the last day of the Interest Period relating
thereto unless breakage costs incurred by the Tranche B Lenders in connection
therewith are paid by the Borrower in accordance with ss.7.10, and (c) each
partial prepayment shall be allocated among the Tranche B Lenders, in
proportion, as nearly as practicable, to the respective outstanding amount of
each Tranche B Lender's Tranche B Term Note, with adjustments to the extent
practicable to equalize any prior prepayments not exactly in proportion. Any
prepayment of principal of the Tranche B Term Loan shall include all interest
accrued to the date of prepayment and shall be applied to reduce remaining
scheduled installments of principal due on the Tranche B Term Loan ratably. No
amount repaid with respect to the Tranche B Term Loan may be reborrowed.
4.5. Interest on Tranche B Term Loan.
4.5.1. Interest Rates. Except as otherwise provided in ss.7.11, the
Tranche B Term Loan shall bear interest at the following rates:
(a) To the extent that all or any portion of the Tranche B Term
Loan bears interest at the Base Rate, the Tranche B Term Loan or such
portion shall bear interest at the rate per annum equal to the Base
Rate plus the Applicable Margin in effect from time to time with
respect to that portion of the Tranche B Term Loans comprised of Base
Rate Loans.
(b) To the extent that all or any portion of the Tranche B Term
Loan bears interest during any Interest Period at the Eurodollar
Rate, the Tranche B Term Loan or such portion shall bear interest
during such Interest Period at the rate per annum equal to the
Eurodollar Rate determined for such Interest Period plus the
Applicable Margin in effect from time to time with respect to that
portion of the Tranche B Term Loans comprised of Eurodollar Rate
Loans.
The Borrower promises to pay interest on the Tranche B Term Loan or any
portion thereof outstanding in arrears on each Interest Payment Date.
4.5.2. Notification by Borrower. The Borrower shall notify the
Administrative Agent, such notice to be irrevocable, at least three (3)
Eurodollar Business Days prior to the Drawdown Date of the Tranche B Term
Loan if all or any portion of the Tranche B Term Loan is to bear interest
at the Eurodollar Rate. After the Tranche B Term Loan has been made, the
provisions of ss.2.7 shall apply mutatis mutandis with respect to all or
any portion of the Tranche B Term Loan so that the Borrower may have the
same interest rate options with respect to all or any portion of the
Tranche B Term Loan as it would be entitled to with respect to the
Revolving Credit Loans.
4.5.3. Amounts, etc. Any portion of the Tranche B Term Loan bearing
interest at the Eurodollar Rate relating to any Interest Period shall be
in the amount of $1,000,000 or in integral multiples of $100,000 in excess
thereof. The number of Eurodollar Rate Loans having different Interest
Periods outstanding at any time shall not exceed ten (10). No Interest
Period relating to the Tranche B Term Loan or any portion thereof bearing
interest at the Eurodollar Rate shall extend beyond the date on which a
regularly scheduled installment payment of the principal of the Tranche B
Term Loan is to be made unless a portion of the Tranche B Term Loan at
least equal to such installment payment has an Interest Period ending on
such date or is then bearing interest at the Base Rate.
5. MANDATORY REPAYMENT OF THE LOANS.
In addition to payments in respect of Revolving Credit Loans pursuant to
ss.2.10 and scheduled amortization payments pursuant to ss.ss.3.3 and 4.3, as
the case may be, the Loans shall be repaid as follows:
5.1. Excess Cash Flow Recapture. If for each fiscal year ending on or
after February 29, 2004, there shall be Consolidated Excess Cash Flow and if the
Total Leverage Ratio as at the last day of such fiscal year is equal to or
greater than 6.00:1.00, the Borrower shall pay to the Administrative Agent, for
the respective accounts of the Lenders as provided in ss.5.5, an amount equal to
fifty percent (50%) of Consolidated Excess Cash Flow for such fiscal year, such
prepayment to be due five (5) days after receipt of the audited financial
statements delivered pursuant to ss.10.4(a) but in any event no later than one
hundred and twenty five (125) days after the end of each applicable fiscal year
and to be applied to prepay the Loans in the manner set forth in ss.5.5.
5.2. Proceeds of Asset Sales and Asset Swaps. If the Borrower or any of
its Subsidiaries receives Net Cash Sale Proceeds in excess of $25,000,000 from
any Asset Sale or Asset Swap (other than the sale, lease, license or other
disposition of assets in the ordinary course of business consistent with past
practices) and as of the last day of the fiscal quarter ended immediately prior
to the date of such Asset Sale or Asset Swap, the Total Leverage Ratio is equal
to or greater than 6.00:1.00, the Borrower shall pay to the Administrative
Agent, for the respective accounts of the Lenders as provided in ss.5.5, an
amount equal to one hundred percent (100%) of such Net Cash Sale Proceeds, to
be applied to prepay the Loans in the manner set forth in ss.5.5; provided,
however, that if (i) within three hundred sixty-five (365) days of receipt of
such Net Cash Sale Proceeds, the Borrower identifies to the Administrative
Agent in writing an investment or acquisition otherwise permitted under ss.11.3
or ss.11.5.1, respectively, and (ii) within five hundred forty-five (545) days
of receipt of such Net Cash Sale Proceeds, the Borrower consummates such
Permitted Acquisition or investments permitted under ss.11.3 with all or a
portion of such Net Cash Sale Proceeds, the Borrower shall not be required to
prepay the Loans under this ss.5.2 with that portion of the Net Cash Sale
Proceeds applied to finance such Permitted Acquisition or permitted investments
but shall in any event comply with the terms of ss.5.6.
5.3. Proceeds of Equity Issuances. If the Borrower or any of its
Subsidiaries receives Net Cash Equity Issuance Proceeds from any Equity Issuance
and as of the last day of the fiscal quarter ended immediately prior to the date
of such Equity Issuance, the Total Leverage Ratio is equal to or greater than
6:00 to 1:00, the Borrower shall pay to the Administrative Agent for the
respective accounts of the Lenders as provided in ss.5.5 an amount equal to the
lesser of (a) fifty percent (50%) of such Net Cash Equity Issuance Proceeds or
(b) that amount necessary reduce the Total Leverage Ratio to 6.00:1.00 after
giving effect to such prepayment, such amount to be applied to prepay the Loans
in the manner set forth in ss.5.5; provided, however, that if (i) within ninety
(90) days of receipt of such Net Cash Equity Issuance Proceeds, the Borrower
identifies to the Administrative Agent in writing an acquisition permitted under
ss.11.5.1, and (ii) within three hundred sixty-five (365) days of receipt of
such Net Cash Equity Issuance Proceeds, the Borrower consummates such Permitted
Acquisition with all or a portion of such Net Cash Equity Issuance Proceeds, the
Borrower shall not be required to apply up to $100,000,000 of such Net Cash
Equity Issuance Proceeds to prepay the Loans under this ss.5.3 to the extent
such amounts were applied to finance such Permitted Acquisition but shall in any
event comply with the terms of ss.5.6.
5.4. Proceeds of Subordinated Debt Issuances. If the Borrower or any of
its Subsidiaries receives net cash proceeds from any issuance of Additional
Subordinated Debt (other than Additional Subordinated Debt issued to refinance
Subordinated Debt evidenced by the Subordinated Notes outstanding on the date
hereof) and the Senior Leverage Ratio as of the end of the fiscal quarter ended
immediately prior to the date of such Additional Subordinated Debt issuance is
greater than 5.00:1.00, the Borrower shall pay to the Administrative Agent for
the respective accounts of the Lenders an amount equal to the lesser of (a) one
hundred percent (100%) of such net cash proceeds or (b) that amount necessary to
reduce the Senior Leverage Ratio for such Reference Period to 5.00:1.00 after
giving effect to such prepayment, to be applied to prepay the Loans in the
manner set forth in ss.5.5.
5.5. Application of Payments. All payments made pursuant to ss.ss.5.1
through 5.4 shall be applied: first, to repay the Tranche A Term Loan and the
Tranche B Term Loan pro rata with payments applied ratably against the remaining
scheduled installments thereon; and second, if there are no outstanding amounts
owed under either the Tranche A Term Loan or the Tranche B Term Loan, then to
reduce the outstanding amount of the Revolving Credit Loans and to permanently
reduce the Total Revolving Credit Commitment by such amount; provided, however,
that until the Tranche A Term Loan has been repaid in full, any Tranche B Lender
may elect by written notice to the Administrative Agent prior to the date of
such mandatory repayment to decline all or any portion of such mandatory
repayment of its Tranche B Term Loan, in which case the aggregate amount that
would have been applied to prepay the Tranche B Term Loan but was so declined
shall be applied first ratably against the remaining scheduled installments of
principal on the Tranche A Term Loan until the Tranche A Term Loan is repaid in
full, second, ratably against the remaining scheduled installments of principal
on the Tranche B Term Loan until the Tranche B Term Loan is repaid in full, and
third, if there are no outstanding amounts owed under the Tranche A Term Loan or
Tranche B Term Loan, then to reduce the outstanding amount of the Revolving
Credit Loans and to permanently reduce the Total Revolving Credit Commitment by
such amount. Such mandatory prepayments shall be allocated among the Lenders in
proportion, as nearly as practicable, to the respective outstanding amounts of
each Lender's Notes, with adjustments to the extent practicable to equalize any
prior prepayments not exactly in proportion. No amounts repaid with respect to
the Loans pursuant to this ss.5.5 may be reborrowed.
5.6. Delivery of Proceeds. The Borrower shall deliver to the
Administrative Agent, promptly upon receipt thereof, all Net Cash Sale Proceeds
or Net Cash Equity Issuance Proceeds that may have to be applied to prepay the
Loans if not reinvested as permitted in ss.ss.5.2 and 5.3, and any cash reserves
in connection with an Asset Swap or Asset Sale that were deducted from Net Cash
Sale Proceeds, to be held as Collateral (in an interest bearing account) pending
reinvestment in accordance with such ss.ss.5.2 and 5.3, or, in the case of such
reserves, pending an application or conversion into Net Cash Sale Proceeds. Upon
the Borrower's request, any cash amounts delivered to the Administrative Agent
to be held as Collateral under this ss.5.6 may be applied to repay Revolving
Credit Loans, provided that an amount of the Total Revolving Credit Commitment
equal to the amount so repaid may not be reborrowed until after final
application amounts.
6. LETTERS OF CREDIT.
6.1. Letter of Credit Commitments.
6.1.1. Commitment to Issue Letters of Credit. Subject to the terms
and conditions hereof and the execution and delivery by the Borrower of a
letter of credit application on the Administrative Agent's customary form
(a "Letter of Credit Application"), the Administrative Agent on behalf of
the Revolving Credit Lenders and in reliance upon the agreement of the
Revolving Credit Lenders set forth in ss.6.1.4 and upon the
representations and warranties of the Borrower contained herein, agrees,
in its individual capacity, to issue, extend and renew for the account of
the Borrower one or more standby letters of credit (individually, a
"Letter of Credit"), in such form as may be requested from time to time by
the Borrower and agreed to by the Administrative Agent; provided, however,
that, after giving effect to such request, (a) the sum of the aggregate
Maximum Drawing Amount and all Unpaid Reimbursement Obligations shall not
exceed $100,000,000 at any one time and (b) the sum of (i) the Maximum
Drawing Amount on all Letters of Credit, (ii) all Unpaid Reimbursement
Obligations, and (iii) the amount of all Revolving Credit Loans
outstanding shall not exceed the Total Revolving Credit Commitment at such
time. Notwithstanding the foregoing, the Administrative Agent shall have
no obligation to issue any Letter of Credit to support or secure any
Indebtedness of an Excluded Subsidiary or any Indebtedness of the Borrower
or any of its Subsidiaries to the extent that such Indebtedness was
incurred prior to the proposed issuance date of such Letter of Credit.
6.1.2. Letter of Credit Applications. Each Letter of Credit
Application shall be completed to the satisfaction of the Administrative
Agent. In the event that any provision of any Letter of Credit Application
shall be inconsistent with any provision of this Credit Agreement, then
the provisions of this Credit Agreement shall, to the extent of any such
inconsistency, govern.
6.1.3. Terms of Letters of Credit. Each Letter of Credit issued,
extended or renewed hereunder shall, among other things, (a) provide for
the payment of sight drafts for honor thereunder when presented in
accordance with the terms thereof and when accompanied by the documents
described therein, and (b) provide for a term of no more than one (1) year
subject to automatic renewals, but in no event have an expiry date later
than the date which is fourteen (14) days (or, if the Letter of Credit is
confirmed by a confirmer or otherwise provides for one or more nominated
persons, forty-five (45) days) prior to the Revolving Credit Loan Maturity
Date. Each Letter of Credit so issued, extended or renewed shall be
subject to the Uniform Customs and Practice for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500 or any
successor version thereto adopted by the Administrative Agent in the
ordinary course of its business as a letter of credit issuer and in effect
at the time of issuance of such Letter of Credit (the "Uniform Customs")
or, in the case of a standby Letter of Credit, either the Uniform Customs
or the International Standby Practices (ISP98), International Chamber of
Commerce Publication No. 590, or any successor code of standby letter of
credit practices among banks adopted by the Administrative Agent in the
ordinary course of its business as a standby letter of credit issuer and
in effect at the time of issuance of such Letter of Credit.
6.1.4. Reimbursement Obligations of Revolving Credit Lenders. Each
Revolving Credit Lender severally agrees that it shall be absolutely
liable, without regard to the occurrence of any Default or Event of
Default or any other condition precedent whatsoever, to the extent of such
Revolving Credit Lender's Commitment Percentage of the Total Revolving
Credit Commitment, to reimburse the Administrative Agent on demand for the
amount of each draft paid by the Administrative Agent under each Letter of
Credit to the extent that such amount is not reimbursed by the Borrower
pursuant to ss.6.2 (such agreement for a Revolving Credit Lender being
called herein the "Letter of Credit Participation" of such Revolving
Credit Lender).
6.1.5. Participations of Revolving Credit Lenders. Each such payment
made by a Revolving Credit Lender shall be treated as the purchase by such
Revolving Credit Lender of a participating interest in the Borrower's
Reimbursement Obligation under ss.6.2 in an amount equal to such payment.
Each Revolving Credit Lender shall share in accordance with its
participating interest in any interest which accrues pursuant to ss.6.2.
6.2. Reimbursement Obligation of the Borrower. In order to induce the
Administrative Agent to issue, extend and renew each Letter of Credit and the
Revolving Credit Lenders to participate therein, the Borrower hereby agrees to
reimburse or pay to the Administrative Agent, for the account of the
Administrative Agent or (as the case may be) the Revolving Credit Lenders, with
respect to each Letter of Credit issued, extended or renewed by the
Administrative Agent hereunder,
(a) except as otherwise expressly provided in ss.6.2(b) and (c), on
each date that any draft presented under such Letter of Credit is honored
by the Administrative Agent, or the Administrative Agent otherwise makes a
payment with respect thereto, (i) the amount paid by the Administrative
Agent under or with respect to such Letter of Credit, and (ii) the amount
of any taxes, fees, charges or other costs and expenses whatsoever
incurred by the Administrative Agent or any Revolving Credit Lender in
connection with any payment made by the Administrative Agent or any
Revolving Credit Lender under, or with respect to, such Letter of Credit,
(b) upon the reduction (but not termination) of the Total Revolving
Credit Commitment to an amount less than the Maximum Drawing Amount, an
amount equal to such difference, which amount shall be held by the
Administrative Agent for the benefit of the Revolving Credit Lenders and
the Administrative Agent as cash collateral for all Reimbursement
Obligations, and
(c) upon the termination of the Total Revolving Credit Commitment, or
the acceleration of the Reimbursement Obligations with respect to all
Letters of Credit in accordance with ss.15, an amount equal to the then
Maximum Drawing Amount on all Letters of Credit, which amount shall be
held by the Administrative Agent for the benefit of the Revolving Credit
Lenders and the Administrative Agent as cash collateral for all
Reimbursement Obligations.
Each such payment shall be made to the Administrative Agent at the
Administrative Agent's Office in immediately available funds. Interest on any
and all amounts remaining unpaid by the Borrower under this ss.6.2 at any time
from the date such amounts become due and payable (whether as stated in this
ss.6.2, by acceleration or otherwise) until payment in full (whether before or
after judgment) shall be payable to the Administrative Agent on demand at the
rate specified in ss.7.11 for overdue principal on the Revolving Credit Loans.
6.3. Letter of Credit Payments. If any draft shall be presented or other
demand for payment shall be made under any Letter of Credit, the Administrative
Agent shall notify the Borrower of the date and amount of the draft presented or
demand for payment and of the date and time when it expects to pay such draft or
honor such demand for payment. If the Borrower fails to reimburse the
Administrative Agent as provided in ss.6.2 on or before the date that such draft
is paid or other payment is made by the Administrative Agent, the Administrative
Agent may at any time thereafter notify the Revolving Credit Lenders of the
amount of any such Unpaid Reimbursement Obligation. No later than 4:00 p.m.
(Houston, Texas time) on the Business Day next following the receipt of such
notice, each Revolving Credit Lender shall make available to the Administrative
Agent, at the Administrative Agent's Office, in immediately available funds,
such Revolving Credit Lender's Commitment Percentage (in respect of the Total
Revolving Credit Commitment) of such Unpaid Reimbursement Obligation, together
with an amount equal to the product of (a) the average, computed for the period
referred to in clause (c) below, of the weighted average interest rate paid by
the Administrative Agent for federal funds acquired by the Administrative Agent
during each day included in such period, times (b) the amount equal to such
Revolving Credit Lender's Commitment Percentage (in respect of the Total
Revolving Credit Commitment) of such Unpaid Reimbursement Obligation, times (c)
a fraction, the numerator of which is the number of days that elapse from and
including the date the Administrative Agent paid the draft presented for honor
or otherwise made payment to the date on which such Revolving Credit Lender's
Commitment Percentage (in respect of the Total Revolving Credit Commitment) of
such Unpaid Reimbursement Obligation shall become immediately available to the
Administrative Agent, and the denominator of which is 360. The responsibility of
the Administrative Agent to the Borrower and the Revolving Credit Lenders shall
be only to determine that the documents (including each draft) delivered under
each Letter of Credit in connection with such presentment shall be in conformity
in all material respects with such Letter of Credit.
6.4. Obligations Absolute. The Borrower's obligations under this ss.6
shall be absolute and unconditional under any and all circumstances and
irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim or defense to payment
which the Borrower may have or have had against the Administrative Agent, any
Lender or any beneficiary of a Letter of Credit. The Borrower further agrees
with the Administrative Agent and the Lenders that the Administrative Agent and
the Revolving Credit Lenders shall not be responsible for, and the Borrower's
Reimbursement Obligations under ss.6.2 shall not be affected by, among other
things, the validity or genuineness of documents or of any endorsements thereon,
even if such documents should in fact prove to be in any or all respects
invalid, fraudulent or forged, or any dispute between or among the Borrower, the
beneficiary of any Letter of Credit or any financing institution or other party
to which any Letter of Credit may be transferred or any claims or defenses
whatsoever of the Borrower against the beneficiary of any Letter of Credit or
any such transferee. The Administrative Agent and the Revolving Credit Lenders
shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit. The Borrower agrees that
any action taken or omitted by the Administrative Agent or any Revolving Credit
Lender under or in connection with each Letter of Credit and the related drafts
and documents, if done in good faith, shall be binding upon the Borrower and
shall not result in any liability on the part of the Administrative Agent or any
Revolving Credit Lender to the Borrower.
6.5. Reliance by Issuer. To the extent not inconsistent with ss.6.4, the
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying upon, any Letter of Credit, draft, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document 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, independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Credit Agreement unless it shall first have received such advice or concurrence
of the Required Lenders as it reasonably deems appropriate or it shall first be
indemnified to its reasonable satisfaction by the Revolving Credit 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 Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Credit Agreement in accordance with a request of the Required Lenders, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon the Revolving Credit Lenders and all future holders of the
Revolving Credit Notes or of a Letter of Credit Participation.
6.6. Letter of Credit Fee. The Borrower shall, on each Interest Payment
Date for Base Rate Loans pay a fee (in each case, a "Letter of Credit Fee") to
the Administrative Agent in respect of each Letter of Credit in an amount equal
to the Applicable Margin for Revolving Credit Loans outstanding during the
quarter ending on such date which bear interest based on the Eurodollar Rate of
the daily average face amount of such standby Letter of Credit, of which an
amount equal to one-eighth of one percent (0.125%) per annum of the face amount
of such standby Letter of Credit shall be for the account of the Administrative
Agent, as a fronting fee, and the balance of which Letter of Credit Fee shall be
for the accounts of the Revolving Credit Lenders in accordance with their
respective Commitment Percentages in respect of the Total Revolving Credit
Commitment. In respect of each Letter of Credit, the Borrower shall also pay to
the Administrative Agent for the Administrative Agent's own account, at such
other time or times as such charges are customarily made by the Administrative
Agent, the Administrative Agent's customary issuance, amendment, negotiation or
document examination and other administrative fees as in effect from time to
time.
7. CERTAIN GENERAL PROVISIONS.
7.1. Closing Fees. The Borrower agrees to pay to the Administrative Agent
on the Funding Date a closing fee (the "Closing Fee") as set forth in the Fee
Letter.
7.2. Administrative Agent's Fee. The Borrower shall pay to the
Administrative Agent annually in advance, for the Administrative Agent's own
account, on the Funding Date and on each anniversary of the Funding Date, an
Administrative Agent's fee (the "Administrative Agent's Fee") as set forth in
the Administrative Agent Fee Letter.
7.3. Funds for Payments.
7.3.1. Payments to Administrative Agent. All payments of principal,
interest, Reimbursement Obligations, Fees and any other amounts due
hereunder or under any of the other Loan Documents shall be made on the
due date thereof to the Administrative Agent in Dollars, for the
respective accounts of the applicable Lenders and the Administrative
Agent, at the Administrative Agent's Office or at such other place that
the Administrative Agent may from time to time designate, in each case at
or about 11:00 a.m. (Houston, Texas time or other local time at the place
of payment) and in immediately available funds.
7.3.2. No Offset, etc. All payments by the Borrower hereunder and
under any of the other Loan Documents shall be made without recoupment,
setoff or counterclaim and free and clear of and without deduction for any
taxes, levies, imposts, duties, charges, fees, deductions, withholdings,
compulsory loans, restrictions or conditions of any nature now or
hereafter imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other authority therein excluding income,
franchise and branch profits taxes imposed on (or measured by) the net
income of any Lender or the Administrative Agent by the jurisdictions
under the laws of which the Administrative Agent or any Lender is
organized or any political subdivision thereof, or by the jurisdictions in
which the Administrative Agent or such Lender is located or any political
subdivision thereof, or by the jurisdictions in which the Administrative
Agent or such Lender is doing business or any political subdivision
thereof ("Excluded Taxes") unless the Borrower is compelled by law to make
such deduction or withholding. If any such obligation (other than an
Excluded Tax) is imposed upon the Borrower with respect to any amount
payable by it hereunder or under any of the other Loan Documents, the
Borrower will pay to the Administrative Agent, for the account of the
Lenders or (as the case may be) the Administrative Agent, on the date on
which such amount is due and payable hereunder or under such other Loan
Document, such additional amount in Dollars as shall be necessary to
enable the Lenders or the Administrative Agent to receive the same net
amount which the Lenders or the Administrative Agent would have received
on such due date had no such obligation been imposed upon the Borrower;
provided however that the Borrower shall not be required to increase any
such amounts payable to any Lender or the Administrative Agent with
respect to any such obligation (other than an Excluded Tax) that are
attributable to (i) such Administrative Agent's or Lender's failure to
comply with the provisions of ss.7.3.3 or (ii) that are withholding taxes
imposed on the amounts payable to such Administrative Agent or such Lender
at the time such Administrative Agent or Lender becomes a party to this
Credit Agreement, except to the extent that such Lender's assignor (if
any) was entitled, at the time of assignment, to receive additional
amounts from the Borrower with respect to such obligation pursuant to this
ss.7.3.2; provided, further that the foregoing shall not relieve the
Borrower of its obligation to pay additional amounts pursuant to this
ss.7.3.2 in the event that, as a result of any change in any applicable
law, treaty or governmental rule, regulation or order, or any change in
interpretation, administration or application thereof, a Non-U.S. Lender
that was previously entitled to receive all payments under this Credit
Agreement and the Notes without deduction or withholding of any United
States federal income taxes is no longer properly entitled to deliver
forms, certificates or other evidence at a subsequent date establishing
the fact that such Lender is not subject to withholding. The Borrower will
deliver promptly to the Administrative Agent certificates or other valid
vouchers for all taxes or other charges deducted from or paid with respect
to payments made by the Borrower hereunder or under such other Loan
Document.
7.3.3. Non-U.S. Lenders. Each Lender and the Administrative Agent
(including any assignee) that is not a U.S. Person as defined in Section
7701(a)(30) of the Code for federal income tax purposes (a "Non-U.S.
Lender") hereby agrees that, if and to the extent it is legally able to do
so, it shall, prior to the date of the first payment by the Borrower
hereunder to be made to such Lender or the Administrative Agent or for
such Lender's or the Administrative Agent's account, deliver to the
Borrower and the Administrative Agent, as applicable, such certificates,
documents or other evidence, as and when required by the Code or Treasury
Regulations issued pursuant thereto, including (a) in the case of a
Non-U.S. Lender that is a "bank" for purposes of Section 881(c)(3)(A) of
the Code, two (2) duly completed copies of Internal Revenue Service Form
W-8BEN or Form W-8ECI and any other certificate or statement of exemption
required by Treasury Regulations, or any subsequent versions thereof or
successors thereto, properly completed and duly executed by such Lender or
the Administrative Agent establishing that with respect to payments of
principal, interest or fees hereunder it is (i) not subject to United
States federal withholding tax under the Code because such payment is
effectively connected with the conduct by such Lender or Administrative
Agent of a trade or business in the United States or (ii) totally exempt
or partially exempt from United States federal withholding tax under a
provision of an applicable tax treaty and (b) in the case of a Non-U.S.
Lender that is not a "bank" for purposes of Section 881(c)(3)(A) of the
Code, a certificate in form and substance reasonably satisfactory to the
Administrative Agent and the Borrower and to the effect that (i) such
Non-U.S. Lender is not a "bank" for purposes of Section 881(c)(3)(A) of
the Code, is not subject to regulatory or other legal requirements as a
bank in any jurisdiction, and has not been treated as a bank for purposes
of any tax, securities law or other filing or submission made to any
governmental authority, any application made to a rating agency or
qualification for any exemption from any tax, securities law or other
legal requirements, (ii) is not a ten (10) percent shareholder for
purposes of Section 881(c)(3)(B) of the Code and (iii) is not a controlled
foreign corporation receiving interest from a related person for purposes
of Section 881(c)(3)(C) of the Code, together with a properly completed
Internal Revenue Service Form W-8 or W-9, as applicable (or successor
forms). Each Lender or the Administrative Agent agrees that it shall,
promptly upon a change of its lending office or the selection of any
additional lending office, to the extent the forms previously delivered by
it pursuant to this section are no longer effective, and promptly upon the
Borrower's or the Administrative Agent's reasonable request after the
occurrence of any other event (including the passage of time) requiring
the delivery of a Form W-8BEN, Form W-8ECI, Form W-8 or W-9 in addition to
or in replacement of the forms previously delivered, deliver to the
Borrower and the Administrative Agent, as applicable, if and to the extent
it is properly entitled to do so, a properly completed and executed Form
W-8BEN, Form W-8ECI, Form W-8 or W-9, as applicable (or any successor
forms thereto).
7.4. Computations. All computations of interest on the Eurodollar Rate
Loans and of Fees shall be based on a 360-day year and paid for the actual
number of days elapsed. All computations of interest on Base Rate Loans shall be
based on a 365-day or 366-day year, as the case may be, for the actual number of
days elapsed. Except as otherwise provided in the definition of the term
"Interest Period" with respect to Eurodollar Rate Loans, whenever a payment
hereunder or under any of the other Loan Documents becomes due on a day that is
not a Business Day, the due date for such payment shall be extended to the next
succeeding Business Day, and interest shall accrue during such extension. The
outstanding amount of the Loans as reflected on the Revolving Credit Note
Records and the Term Note Records from time to time shall be considered correct
and binding on the Borrower unless within five (5) Business Days after receipt
of any notice by the Administrative Agent or any of the Lenders of such
outstanding amount, the Administrative Agent or such Lender shall notify the
Borrower to the contrary.
7.5. Inability to Determine Eurodollar Rate. In the event, prior to the
commencement of any Interest Period relating to any Eurodollar Rate Loan, the
Administrative Agent shall determine or be notified by the Required Lenders that
adequate and reasonable methods do not exist for ascertaining the Eurodollar
Rate that would otherwise determine the rate of interest to be applicable to any
Eurodollar Rate Loan during any Interest Period, the Administrative Agent shall
forthwith give notice of such determination (which shall be conclusive and
binding on the Borrower and the Lenders) to the Borrower and the Lenders. In
such event (a) any Loan Request or Conversion Request with respect to Eurodollar
Rate Loans shall be automatically withdrawn and shall be deemed a request for
Base Rate Loans, (b) each Eurodollar Rate Loan will automatically, on the last
day of the then current Interest Period relating thereto, become a Base Rate
Loan, and (c) the obligations of the Lenders to make Eurodollar Rate Loans shall
be suspended until the Administrative Agent or the Required Lenders determine
that the circumstances giving rise to such suspension no longer exist, whereupon
the Administrative Agent or, as the case may be, the Administrative Agent upon
the instruction of the Required Lenders, shall so notify the Borrower and the
Lenders.
7.6. Illegality. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or in the interpretation
or application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Rate Loans, such Lender shall forthwith give notice of such
circumstances to the Borrower and the other Lenders and thereupon (a) the
commitment of such Lender to make Eurodollar Rate Loans or convert Base Rate
Loans to Eurodollar Rate Loans shall forthwith be suspended and (b) such
Revolving Credit Lender's Revolving Credit Loans then outstanding as Eurodollar
Rate Loans, if any, shall be converted automatically to Base Rate Loans on the
last day of each Interest Period applicable to such Eurodollar Rate Loans or
within such earlier period as may be required by law. The Borrower hereby agrees
promptly to pay the Administrative Agent for the account of such Lender, upon
demand by such Lender, any additional amounts necessary to compensate such
Lender for any costs incurred by such Lender in making any conversion in
accordance with this ss.7.6, including any interest or fees payable by such
Lender to lenders of funds obtained by it in order to make or maintain its
Eurodollar Rate Loans hereunder.
7.7. Additional Costs, etc. If any present or future applicable law, which
expression, as used herein, includes statutes, rules and regulations thereunder
and interpretations thereof by any competent court or by any governmental or
other regulatory body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and notices at any
time or from time to time hereafter made upon or otherwise issued to any Lender
or the Administrative Agent by any central bank or other fiscal, monetary or
other authority (whether or not having the force of law), shall:
(a) subject any Lender or the Administrative Agent to any tax, levy,
impost, duty, charge, fee, deduction or withholding of any nature with
respect to this Credit Agreement, the other Loan Documents, any Letters of
Credit, such Lender's Commitment or the Loans (other than taxes based upon
or measured by the income or profits of such Lender or the Administrative
Agent), or
(b) materially change the basis of taxation (except for changes in
taxes on income or profits) of payments to any Lender of the principal of
or the interest on any Loans or any other amounts payable to any Lender or
the Administrative Agent under this Credit Agreement or any of the other
Loan Documents, or
(c) impose or increase or render applicable (other than to the extent
specifically provided for elsewhere in this Credit Agreement) any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law) against assets held
by, or deposits in or for the account of, or loans by, or letters of
credit issued by, or commitments of an office of any Lender, or
(d) impose on any Lender or the Administrative Agent any other
conditions or requirements with respect to this Credit Agreement, the
other Loan Documents, any Letters of Credit, the Loans, such Lender's
Commitment, or any class of loans, letters of credit or commitments of
which any of the Loans or such Lender's Commitment forms a part;
and the result of any of the foregoing is:
(i) to increase the cost to any Lender of making, funding,
issuing, renewing, extending or maintaining any of the Loans or such
Lender's Commitment or any Letter of Credit, or
(ii) to reduce the amount of principal, interest, Reimbursement
Obligation or other amount payable to such Lender or the
Administrative Agent hereunder on account of such Lender's
Commitment, any Letter of Credit or any of the Loans, or
(iii)to require such Lender or the Administrative Agent to make
any payment or to forego any interest or Reimbursement Obligation or
other sum payable hereunder, the amount of which payment or foregone
interest or Reimbursement Obligation or other sum is calculated by
reference to the gross amount of any sum receivable or deemed
received by such Lender or the Administrative Agent from the Borrower
hereunder,
then, and in each such case, the Borrower will, upon demand made by such Lender
or (as the case may be) the Administrative Agent at any time and from time to
time and as often as the occasion therefor may arise and upon presentation by
such Lender or the Administrative Agent of a certificate pursuant to ss.7.9, pay
to such Lender or the Administrative Agent such additional amounts as will be
sufficient to compensate such Lender or the Administrative Agent on an after-tax
basis for such additional cost, reduction, payment or foregone interest or
Reimbursement Obligation or other sum.
7.8. Capital Adequacy. If after the date hereof any Lender determines that
(a) the adoption of or change in any law, governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law) regarding
capital requirements for Lenders or bank holding companies or any change in the
interpretation or application thereof by a Governmental Authority with
appropriate jurisdiction, or (b) compliance by such Lender or any corporation
controlling such Lender with any law, governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law) of any such
entity regarding capital adequacy, has the effect of reducing the return on such
Lender's commitment with respect to any Loans to a level below that which such
Lender could have achieved but for such adoption, change or compliance (taking
into consideration such Lender's then existing policies with respect to capital
adequacy and assuming full utilization of such entity's capital) by any amount
deemed by such Lender to be material, then such Lender may notify the Borrower
and the Administrative Agent of such fact. To the extent that the amount of such
reduction in the return on capital is not reflected in the Base Rate, the
Borrower agrees to pay such Lender for the amount of such reduction in the
return on capital as and when such reduction is determined upon presentation by
such Lender of a certificate in accordance with ss.7.9. Each Lender shall
allocate such cost increases among its customers in good faith and on an
equitable basis.
7.9. Certificate. A certificate setting forth any additional amounts
payable pursuant to ss.7.7 or ss.7.8 and a brief explanation of such amounts
which are due, submitted by any Lender to the Borrower and the Administrative
Agent, shall be conclusive, absent manifest error, that such amounts are due and
owing, which certificate shall be delivered no later than one hundred and eighty
(180) days after the date the Administrative Agent and such Lender shall have
determined that any such additional amount is due.
7.10. Indemnity. The Borrower agrees to indemnify each Lender and to hold
each Lender harmless from and against any loss (excluding any loss of
anticipated profits), cost or expense that such Lender may sustain or incur as a
consequence of (a) default by the Borrower in payment of the principal amount of
or any interest on any Eurodollar Rate Loans as and when due and payable,
including any such loss or expense arising from interest or fees payable by such
Lender to banks for funds obtained by it in order to maintain its Eurodollar
Rate Loans, (b) default by the Borrower in making a borrowing or conversion
after the Borrower has given (or is deemed to have given) a Loan Request, notice
(in the case of all or any portion of the Tranche A Term Loan or Tranche B Term
Loan pursuant to ss.3.5.2 or ss.4.5.2, respectively) or a Conversion Request
relating thereto in accordance with ss.2.6, ss.2.7, ss.3.5.2 or ss.4.5.2, as the
case may be, (c) the making of any payment of a Eurodollar Rate Loan or the
making of any conversion of any such Loan to a Base Rate Loan on a day that is
not the last day of the applicable Interest Period with respect thereto,
including interest or fees payable by such Lender to lenders of funds obtained
by it in order to maintain any such Loans.
7.11. Interest After Default.
Overdue principal and (to the extent permitted by applicable law) interest
on the Loans and all other overdue amounts payable hereunder or under any of the
other Loan Documents shall bear interest compounded monthly and payable on
demand at a rate per annum equal to two percent (2%) above the rate of interest
then applicable thereto (or, if no rate of interest is then applicable thereto,
the Base Rate) until such amount shall be paid in full (after as well as before
judgment). 7.12 Mitigation Obligations; Replacement of Lenders. (a) If any
Lender requests compensation under ss.7.7 or ss.7.8, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to ss.7.3.2, or
any Lender is subject to ss.7.6, then such Lender shall use reasonable efforts
to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches, or Affiliates, if, in the reasonable judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to ss.7.7 or ss.7.8 or ss.7.3.2 or eliminate the effect of
ss.7.6, as the case may be, in the future and (ii) would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.
(b) If any Lender requests compensation under ss.7.7 or ss.7.8, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to ss.7.3.2, or
if any Lender is subject to ss.7.6, or if any Lender does not agree to any
amendment hereunder requiring the consent of all Lenders and consented to by
the Required Lenders, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in ss.18, including, without limitation, as a condition
precedent to such assignment, (i) the Administrative Agent's consent to the
assignee unless not otherwise required by ss.18 and (ii) payment of the
registration fee set forth in ss.18.3), all its interests, rights and
obligations under this Credit Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that such Lender shall have received irrevocable payment
in full in cash of an amount equal to the outstanding principal of its Loans,
accrued interest thereon, and accrued fees and all other Obligations and other
amounts payable to it hereunder from the assignee or the Borrower and (ii) such
assignment will result in a reduction in such compensation or payments or
removal of such illegality or such amendment being approved. A Lender shall not
be required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitled the
Borrower to require such assignment and delegation cease to apply.
8. COLLATERAL SECURITY AND GUARANTIES.
8.1. Security of Borrower. The Obligations shall be secured by a perfected
first priority security interest (subject only to Permitted Liens entitled to
priority under applicable law) in all of the assets of the Borrower (other than
the Excluded Assets and non-material assets which the Administrative Agent
agrees in writing may be excluded), whether now owned or hereafter acquired,
including, without limitation, an assignment of all of the Borrower's rights and
interests in, to and under each contract and agreement entered into by the
Borrower in connection with the transactions contemplated by ss.11.5.1, pursuant
to the terms of the Security Documents to which the Borrower is a party.
8.2. Guaranties and Security of Subsidiaries. The Obligations shall also
be guaranteed pursuant to the terms of the Guaranty. The obligations of the
Borrower's Subsidiaries and the EIBC Subsidiaries under the Guaranty shall be in
turn secured by a perfected first priority security interest (subject only to
Permitted Liens entitled to priority under applicable law) in all of the assets
of each such Person (other than (i) Excluded Assets, (ii) non-material assets
which the Administrative Agent agrees in writing may be excluded and (iii)
shares of Capital Stock of the EIBC Subsidiaries if the pledge of such Capital
Stock would cause adverse tax consequences to the Borrower) whether now owned or
hereafter acquired, including without limitation an assignment of each such
Person's rights and interests in, to and under each contract and agreement
entered into by each such Person in connection with the transactions
contemplated by ss.11.5.1, pursuant to the terms of the Security Documents to
which such Person is a party.
8.3. Release of Collateral and Guaranties. The parties hereto acknowledge
and agree that, as soon as practicable following such sale or disposition, the
Administrative Agent shall release its liens on the Collateral and/or any
Subsidiary of the Borrower from its obligations under the Guaranty if such
Collateral and/or Subsidiary is sold or otherwise disposed of in accordance with
the terms of this Credit Agreement, including without limitation, ss.11.5.2.
9. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Lenders and the Administrative
Agent as follows:
9.1. Corporate Authority.
9.1.1. Incorporation; Good Standing. Each of the Borrower and its
Subsidiaries (a) is a corporation, partnership or limited liability
company (or similar business entity) duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation or
formation, (b) has all requisite corporate, partnership or limited
liability company (or the equivalent company) power to own its property
and conduct its business as now conducted and as presently contemplated,
and (c) is in good standing as a foreign corporation, partnership or
limited liability company (or similar business entity) and is duly
authorized to do business in each jurisdiction where such qualification is
necessary except where a failure to be so qualified would not have a
Material Adverse Effect.
9.1.2. Authorization. The execution, delivery and performance of this
Credit Agreement and the other Loan Documents to which the Borrower or any
of its Subsidiaries is or is to become a party and the transactions
contemplated hereby and thereby (a) are within the corporate, partnership
or limited liability company (or the equivalent company) authority of such
Person, (b) have been duly authorized by all necessary corporate,
partnership or limited liability company (or the equivalent company)
proceedings, (c) do not and will not conflict with or result in any breach
or contravention of any provision of law, statute, rule or regulation to
which the Borrower or any of its Subsidiaries is subject or any judgment,
order, writ, injunction, license or permit applicable to the Borrower or
any of its Subsidiaries and (d) do not conflict with any provision of the
Governing Documents of, or any agreement or other instrument binding upon,
the Borrower or any of its Subsidiaries.
9.1.3. Enforceability. The execution and delivery of this Credit
Agreement and the other Loan Documents to which the Borrower or any of its
Subsidiaries is or is to become a party will result in valid and legally
binding obligations of such Person enforceable against it in accordance
with the respective terms and provisions hereof and thereof, except as
enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the
enforcement of creditors' rights and except to the extent that
availability of the remedy of specific performance or injunctive relief is
subject to the discretion of the court before which any proceeding
therefor may be brought.
9.2. Governmental Approvals. The execution, delivery and performance by
the Borrower and any of its Subsidiaries of this Credit Agreement and the other
Loan Documents to which the Borrower or any of its Subsidiaries is or is to
become a party and the transactions contemplated hereby and thereby do not
require the approval or consent of, or filing with, any governmental agency or
authority other than those already obtained.
9.3. Title to Properties. (a) Except as indicated on Schedule 9.3(a)
hereto, the Borrower and its Subsidiaries own all of the assets reflected in the
consolidated balance sheet of the Borrower and its subsidiaries as at the
Balance Sheet Date or acquired since that date (except (i) property and assets
which are not integral to the operations of the Stations owned by the Borrower
or its Subsidiaries as such Stations are operated immediately prior to the
Balance Sheet Date, (ii) property and assets which do not consist of a Station
or publishing asset which have been sold or otherwise disposed of in the
ordinary course of business since that date, (iii) property and assets which
have been replaced since that date or (iv) property and assets which have been
sold or otherwise disposed of after the Funding Date as permitted hereunder),
subject to no rights of others, including any mortgages, leases, conditional
sales agreements, title retention agreements, liens or other encumbrances except
Permitted Liens.
(b) Schedule 9.3(b) hereto, as updated from time to time in accordance
with ss.11.5 sets forth all of the Stations of the Borrower and its Subsidiaries
at the time of reference thereto.
9.4. Financial Statements and Projections.
9.4.1. Fiscal Year. The Borrower and each of its Subsidiaries has a
fiscal year which is the twelve (12) months ending on February 28, or in
the case of a leap year, February 29, of each calendar year.
9.4.2. Financial Statements. There has been furnished to the Lenders
the consolidated balance sheets of the Borrower and its subsidiaries, as
at the Balance Sheet Date and as at November 30, 2000, and the related,
similarly adjusted, consolidated statements of income and cash flow and
consolidating statement of income for the fiscal year and quarter then
ended, each, in the case of audited consolidated financial statements,
certified by both the Borrower's independent certified public accountants
and an authorized officer of the Borrower. Such balance sheets and
statements of income and cash flow have been prepared in accordance with
generally accepted accounting principles and fairly present in all
material respects the financial condition of the Borrower and its
subsidiaries, as at the close of business on the date thereof and the
results of operations for the fiscal periods then ended. There are no
contingent liabilities of the Borrower or any of its subsidiaries, as of
the Funding Date involving material amounts, known to any officer of the
Borrower or of any of its subsidiaries not disclosed in the balance sheet
dated the Balance Sheet Date and the related notes thereto other than
contingent liabilities disclosed to the Lenders in writing.
9.4.3. Projections. The projections of the Borrower and its
Subsidiaries which were included in the December 2000 Confidential
Information Memorandum and which include a projection of revenue, earnings
before interest, taxes, depreciation and amortization, sources and uses of
cash, a funding analysis and capitalization on a quarterly basis for the
fiscal years ended February 28, 2001 and February 28, 2002 and each fiscal
year thereafter through fiscal year ended February 28, 2009, copies of
which are attached hereto as Exhibit E (the "Projections"), disclose all
assumptions made with respect to general economic, financial and market
conditions used in formulating the Projections. To the knowledge of the
Borrower or any of its Subsidiaries as of the Funding Date, no facts exist
that (individually or in the aggregate) would result in any material
change in any of the Projections. The Projections are based upon
reasonable estimates and assumptions at the time made, have been prepared
on the basis of the assumptions stated therein and reflect the reasonable
estimates of the Borrower and its Subsidiaries of the results of
operations and other information projected therein.
9.5. No Material Adverse Changes, etc. Since the Balance Sheet Date there
has been no event or occurrence which has had a Material Adverse Effect. Since
the Balance Sheet Date, the Borrower has not made any Restricted Payment except
as set forth on Schedule 9.5 hereto or after the Funding Date as permitted by
ss.11.4.
9.6. Franchises, Patents, Copyrights, etc. The Borrower and each of its
Subsidiaries possesses all franchises, patents, copyrights, trademarks, trade
names, licenses and permits, and rights in respect of the foregoing, adequate
for the conduct of its business substantially as now conducted without known
material conflict with any rights of others.
9.7. Litigation. Except as set forth in Schedule 9.7 hereto, there are no
actions, suits, proceedings or investigations of any kind pending or threatened
against the Borrower or any of its Subsidiaries before any Governmental
Authority, (a) that, could reasonably be expected to, in each case or in the
aggregate, (i) have a Material Adverse Effect or (ii) materially impair the
right of the Borrower and its Subsidiaries, considered as a whole, to carry on
business substantially as now conducted by them, or result in any substantial
liability not adequately covered by insurance, or for which adequate reserves
are not maintained on the consolidated balance sheet of the Borrower and its
subsidiaries, or (b) which question the validity of this Credit Agreement or any
of the other Loan Documents, or any action taken or to be taken pursuant hereto
or thereto.
9.8. No Materially Adverse Contracts, etc. Neither the Borrower nor any of
its Subsidiaries is subject to any Governing Document or other legal
restriction, or any judgment, decree, order, law, statute, rule or regulation
that has or is expected in the future to have a Material Adverse Effect. Neither
the Borrower nor any of its Subsidiaries is a party to any contract or agreement
that has or is expected, in the reasonable judgment of the Borrower's officers,
to have any Material Adverse Effect.
9.9. Compliance with Other Instruments, Laws, Status as Senior Debt, etc.
Neither the Borrower nor any of its Subsidiaries is in violation of any
provision of its Governing Documents, or any agreement or instrument to which it
may be subject or by which it or any of its properties may be bound or any
decree, order, judgment, statute, license, rule or regulation, in any of the
foregoing cases in a manner that could result in the imposition of substantial
penalties or could reasonably be expected to have a Material Adverse Effect. The
Obligations of the Borrower and its Subsidiaries arising under this Credit
Agreement and the other Loan Documents constitute "Senior Debt" under and as
defined in the Subordinated Note Indenture, and the incurrence of such
Obligations is permitted under ss.4.09 of the Subordinated Note Indenture and
will not cause a "Default" or "Event of Default" under and as defined in the
Subordinated Note Indenture.
9.10. Tax Status. The Borrower and its Subsidiaries (a) have made or filed
all federal, state and foreign income and all other tax returns, reports and
declarations required by any jurisdiction to which any of them is subject,
except where failure to have done so could not reasonably be expected to result
in a Material Adverse Effect, (b) have paid all taxes and other governmental
assessments and charges shown or determined to be due on such returns, reports
and declarations, except those being contested in good faith and by appropriate
proceedings and except where failure to do so could not reasonably be expected
to result in a Material Adverse Effect, and (c) have set aside on their books
provisions reasonably adequate for the payment of all taxes for periods
subsequent to the periods to which such returns, reports or declarations apply.
There are no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and none of the officers of the Borrower know of
any reasonable basis for any such claim.
9.11. No Event of Default. No Default or Event of Default has
---------------------
occurred and is continuing.
9.12. Investment Company Acts and Communications Act. Neither the Borrower
nor any of its Subsidiaries is a "holding company", or a "subsidiary company" of
a "holding company", or an "affiliate" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935; nor is it an
"investment company", or an "affiliated company" or a "principal underwriter" of
an "investment company", as such terms are defined in the Investment Company Act
of 1940. The Borrower and each of its Subsidiaries is in compliance with the
Communications Act with regard to alien control or ownership.
9.13. Absence of Financing Statements, etc. Except with respect to
Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with any
filing records, registry or other public office, that purports to cover, affect
or give notice of any present or possible future Lien on any assets or property
of the Borrower or any of its Subsidiaries or any rights relating thereto.
9.14. Perfection of Security Interest. All filings, assignments, pledges
and deposits of documents or instruments have been made and all other actions
have been taken that are necessary or advisable, under applicable law, to
establish and perfect the Administrative Agent's security interest in the
Collateral. The Collateral and the Administrative Agent's rights with respect to
the Collateral are not subject to any setoff, claims, withholdings or other
defenses. The Borrower or a Subsidiary of the Borrower party to one of the
Security Agreements is the owner of the Collateral free from any Lien, except
for Permitted Liens.
9.15. Certain Transactions. Except for arm's length transactions pursuant
to which the Borrower or any of its Subsidiaries makes payments in the ordinary
course of business upon terms no less favorable than the Borrower or such
Subsidiary could obtain from third parties, none of the officers, directors, or
employees of the Borrower or any of its Subsidiaries is presently a party to any
transaction with the Borrower or any of its Subsidiaries (other than for
services as employees, officers and directors and independent contractors in the
ordinary course of business), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments
to or from any officer, director or such employee or, to the knowledge of the
Borrower, any corporation, partnership, trust or other entity in which any
officer, director, or any such employee has a substantial interest or is an
officer, director, trustee or partner.
9.16. Employee Benefit Plans.
9.16.1. In General. Each Employee Benefit Plan and each Guaranteed
Pension Plan has been maintained and operated in compliance in all
material respects with the provisions of ERISA and all Applicable Pension
Legislation and, to the extent applicable, the Code, including but not
limited to the provisions thereunder respecting prohibited transactions
and the bonding of fiduciaries and other persons handling plan funds as
required by ss.412 of ERISA. The Borrower has heretofore delivered to the
Administrative Agent the most recently completed annual report, Form 5500,
with all required attachments, and actuarial statement required to be
submitted under ss.103(d) of ERISA, with respect to each Guaranteed
Pension Plan.
9.16.2. Terminability of Welfare Plans. No Employee Benefit Plan,
which is an employee welfare benefit plan within the meaning of ss.3(1) or
ss.3(2)(B) of ERISA, provides benefit coverage subsequent to termination
of employment, except as required by Title I, Part 6 of ERISA or the
applicable state insurance laws. The Borrower may terminate each such Plan
at any time (or at any time subsequent to the expiration of any applicable
bargaining agreement) in the discretion of the Borrower without liability
to any Person other than for claims arising prior to termination.
9.16.3. Guaranteed Pension Plans. Each contribution required to be
made to a Guaranteed Pension Plan, whether required to be made to avoid
the incurrence of an accumulated funding deficiency, the notice or lien
provisions of ss.302(f) of ERISA, or otherwise, has been timely made. No
waiver of an accumulated funding deficiency or extension of amortization
periods has been received with respect to any Guaranteed Pension Plan, and
neither the Borrower nor any ERISA Affiliate is obligated to or has posted
security in connection with an amendment to a Guaranteed Pension Plan
pursuant to ss.307 of ERISA or ss.401(a)(29) of the Code. No liability to
the PBGC (other than required insurance premiums, all of which have been
paid) has been incurred by the Borrower or any ERISA Affiliate with
respect to any Guaranteed Pension Plan and there has not been any ERISA
Reportable Event (other than an ERISA Reportable Event as to which the
requirement of 30 days notice has been waived), or any other event or
condition which presents a material risk of termination of any Guaranteed
Pension Plan by the PBGC. Based on the latest valuation of each Guaranteed
Pension Plan (which in each case occurred within twelve months of the date
of this representation), and on the actuarial methods and assumptions
employed for that valuation, the aggregate benefit liabilities of all such
Guaranteed Pension Plans within the meaning of ss.4001 of ERISA did not
exceed the aggregate value of the assets of all such Guaranteed Pension
Plans, disregarding for this purpose the benefit liabilities and assets of
any Guaranteed Pension Plan with assets in excess of benefit liabilities.
9.16.4. Multiemployer Plans. Neither the Borrower nor any ERISA
Affiliate has incurred any material liability (including secondary
liability) to any Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan under ss.4201 of ERISA or as a
result of a sale of assets described in ss.4204 of ERISA. Neither the
Borrower nor any ERISA Affiliate has been notified that any Multiemployer
Plan is in reorganization or insolvent under and within the meaning of
ss.4241 or ss.4245 of ERISA or is at risk of entering reorganization or
becoming insolvent, or that any Multiemployer Plan intends to terminate or
has been terminated under ss.4041A of ERISA.
9.17. Use of Proceeds.
9.17.1. General. The proceeds of the Loans shall be used for the
purpose of (a) refinancing all outstanding loans under the Existing Credit
Agreement, (b) working capital and general corporate purposes, (c) funding
Permitted Acquisitions, including without limitation the Hearst-Argyle
Transaction and the Denver Transaction, and (d) funding Capital
Expenditures permitted hereunder. The Borrower will obtain Letters of
Credit solely for general corporate purposes.
9.17.2. Regulations U and X. No portion of any Loan is to be used,
and no portion of any Letter of Credit is to be obtained, for the purpose
of purchasing or carrying any "margin security" or "margin stock" as such
terms are used in Regulations U and X of the Board of Governors of the
Federal Reserve System, 12 C.F.R. Parts 221 and 224.
9.17.3. Ineligible Securities. No portion of the proceeds of any Loan
is to be used, and no portion of any Letter of Credit is to be obtained,
for the purpose of knowingly purchasing, or providing credit support for
the purchase of, during the underwriting or placement period or within
thirty (30) days thereafter, any Ineligible Securities underwritten or
privately placed by a Financial Affiliate.
9.18. Environmental Compliance. The Borrower has taken all necessary steps
to investigate the past and present condition and usage of the Real Estate and
the operations conducted thereon and, based upon such diligent investigation,
has determined that:
(a) none of the Borrower, its Subsidiaries or any operator of the
Real Estate or any operations thereon is in violation, or alleged
violation, of any judgment, decree, order, law, license, rule or
regulation pertaining to environmental matters, including without
limitation, those arising under the Resource Conservation and Recovery
Act, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 as amended ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986, the Federal Clean Water Act, the Federal
Clean Air Act, the Toxic Substances Control Act, or any state, local or
foreign law, statute, regulation, ordinance, order or decree relating to
health, safety or the environment (hereinafter "Environmental Laws"),
which violation could reasonably be expected to have a material adverse
effect on the environment or a Material Adverse Effect;
(b) neither the Borrower nor any of its Subsidiaries has received
notice from any third party including, without limitation, any
Governmental Authority, (i) that any one of them has been identified by
the United States Environmental Protection Agency ("EPA") as a potentially
responsible party under CERCLA with respect to a site listed on the
National Priorities List, 40 C.F.R. Part ▇▇▇ ▇▇▇▇▇▇▇▇ ▇; (ii) that any
hazardous waste, as defined by 42 U.S.C. ss.6903(5), any hazardous
substances as defined by 42 U.S.C. ss.9601(14), any pollutant or
contaminant as defined by 42 U.S.C. ss.9601(33) and any toxic substances,
oil or hazardous materials or other chemicals or substances regulated by
any Environmental Laws ("Hazardous Substances") which any one of them has
generated, transported or disposed of has been found at any site at which
a Governmental Authority has conducted or has ordered that any Borrower or
any of its Subsidiaries conduct a remedial investigation, removal or other
response action pursuant to any Environmental Law; or (iii) that it is or
shall be a named party to any claim, action, cause of action, complaint,
or legal or administrative proceeding (in each case, contingent or
otherwise) arising out of any third party's incurrence of costs, expenses,
losses or damages of any kind whatsoever in connection with the release of
Hazardous Substances except where any of the foregoing could not
reasonably be expected to have a Material Adverse Effect;
(c) except as set forth on Schedule 9.18 attached hereto: (i) no
portion of the Real Estate has been used for the handling, processing,
storage or disposal of Hazardous Substances except in accordance with
applicable Environmental Laws; and no underground tank or other
underground storage receptacle for Hazardous Substances is located on any
portion of the Real Estate; (ii) in the course of any activities conducted
by the Borrower, its Subsidiaries or operators of its properties, no
Hazardous Substances have been generated or are being used on the Real
Estate except in accordance with applicable Environmental Laws, except
where any failure to comply could not reasonably be expected to result in
a Material Adverse Effect, (iii) there have been no releases (i.e. any
past or present releasing, spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, disposing or dumping) or
threatened releases of Hazardous Substances on, upon, into or from the
properties of the Borrower or its Subsidiaries, which releases would have
a material adverse effect on the value of any of the Real Estate or
adjacent properties or the environment; (iv) to the best of the Borrower's
knowledge, there have been no releases on, upon, from or into any real
property in the vicinity of any of the Real Estate which, through soil or
groundwater contamination, may have come to be located on, and which would
have a material adverse effect on the value of, the Real Estate; and (v)
in addition, any Hazardous Substances that have been generated on any of
the Real Estate have been transported offsite only by carriers having an
identification number issued by the EPA (or the equivalent thereof in any
foreign jurisdiction), treated or disposed of only by treatment or
disposal facilities maintaining valid permits as required under applicable
Environmental Laws, which transporters and facilities have been and are,
to the best of the Borrower's knowledge, operating in compliance with such
permits and applicable Environmental Laws; and
(d) none of the Borrower and its Subsidiaries, any Mortgaged Property
or any of the other Real Estate is subject to any applicable Environmental
Law requiring the performance of Hazardous Substances site assessments, or
the removal or remediation of Hazardous Substances, or the giving of
notice to any Governmental Authority or the recording or delivery to other
Persons of an environmental disclosure document or statement by virtue of
the transactions set forth herein and contemplated hereby, or as a
condition to the recording of any Mortgage or to the effectiveness of any
other transactions contemplated hereby.
9.19. Subsidiaries, etc. Schedule 9.19 hereto, as updated from time to
time in accordance with ss.10.15, sets forth all of the Subsidiaries of the
Borrower. Except as set forth on Schedule 9.19, neither the Borrower nor any
Subsidiary of the Borrower is engaged in any joint venture or partnership with
any other Person. The jurisdiction of incorporation/formation and principal
place of business of each Subsidiary of the Borrower is listed on Schedule 9.19
hereto.
9.20. Disclosure. Neither this Credit Agreement nor any of the other Loan
Documents contains any untrue statement of a material fact or omits to state a
material fact (known to the Borrower or any of its Subsidiaries in the case of
any document or information not furnished by it or any of its Subsidiaries)
necessary in order to make the statements herein or therein not misleading.
There is no fact known to the Borrower or any of its Subsidiaries which has had
a Material Adverse Effect, or which is reasonably likely in the future to have a
Material Adverse Effect, exclusive of effects resulting from changes in general
economic conditions, legal standards or regulatory conditions or changes
affecting the broadcasting or publishing industries generally resulting from new
technologies.
9.21. Licenses and Approvals.
(a) Each of the Borrower and its Subsidiaries has all requisite power and
authority and Necessary Authorizations to hold the FCC Licenses and to own and
operate its Stations and to carry on its businesses as now conducted.
(b) Set forth in Schedule 9.21 hereto, as updated from time to time in
accordance with ss.11.5, is a complete description of all FCC Licenses of the
Borrower and/or its Subsidiaries and the dates on which such FCC Licenses
expire. Complete and correct copies of all such FCC licenses have been delivered
to the Administrative Agent. Each such FCC License which is necessary to the
operation of the business of the Borrower or any of its Subsidiaries is validly
issued and in full force and effect. The Borrower and each of its Subsidiaries
has fulfilled and performed in all material respects all of its obligations with
respect to each such FCC License. No event has occurred which: (i) has resulted
in, or after notice or lapse of time or both would result in, revocation or
termination of any FCC License, or (ii) materially and adversely affects or in
the future could reasonably be expected to materially adversely affect any of
the rights of the Borrower or any of its Subsidiaries thereunder. No license or
franchise, other than the FCC Licenses described in Schedule 9.21 which have
been obtained, is necessary for the operation of the business (including the
Stations) of the Borrower or any of its Subsidiaries as now conducted.
(c) Except as set forth on Schedule 9.21, as updated from time to time
pursuant to ss.11.5, none of the Borrower or any of its Subsidiaries is a party
to or has knowledge of any investigation, notice of violation, order or
complaint issued by or before any Governmental Authority, including the FCC, or
of any other proceedings (other than proceedings relating to the radio or
television broadcasting industry generally) which could in any manner threaten
or adversely affect the validity or continued effectiveness of the FCC Licenses
of the Borrower and its Subsidiaries taken as a whole or the business of the
Borrower and its Subsidiaries taken as a whole. None of the Borrower or any of
its Subsidiaries has reason to believe that any of the FCC Licenses described in
Schedule 9.21, as updated from time to time pursuant to ss.11.5, will not be
renewed in the ordinary course. Each of the Borrower and its Subsidiaries has
filed all material reports, applications, documents, instruments and information
required to be filed by it pursuant to applicable rules and regulations or
requests of every regulatory body having jurisdiction over any of its FCC
Licenses or the activities or business of such Person with respect thereto.
(d) Except for FCC Licenses held by (i) KOIN-TV, Inc. with respect to
KOIN-TV, and (ii) Emmis 101.9 FM Radio Corporation of New York with respect to
WQCD-FM, New York, New York, all FCC Licenses and other licenses, permits and
approvals relating to the Stations are held by a License Subsidiary. No License
Subsidiary (A) owns or holds any assets (including the ownership of stock or any
other interest in any Person) other than FCC Licenses and other licenses,
permits and approvals relating to the Stations, (B) is engaged in any business
other than the holding, acquisition and maintenance of FCC Licenses and other
licenses, permits and approvals relating to the Stations, (C) has any
Investments in any Person other than the Borrower or (D) owes any Indebtedness
(other than (x) Indebtedness to the Administrative Agent and the Lenders
pursuant to the Guaranty and (y) contingent obligations pursuant to the
Subordinated Guaranties or Subordinated Debt consisting of guaranties of
Additional Subordinated Debt) to any Person other than the Borrower.
9.22. Material Agreements. All material radio or television network
affiliation, programming, engineering, consulting, management, employment and
related agreements of the Borrower and its Subsidiaries, if any, which are
presently in effect in connection with, and are material and necessary to, the
conduct of the business of the Borrower or any of its Subsidiaries, including
without limitation the operation of any Station by the Borrower or any of its
Subsidiaries, are valid, subsisting and in full force and effect and none of the
Borrower, any of its Subsidiaries or, to the Borrower's best knowledge, any
other Person are in material default thereunder.
9.23. Solvency. As of the date on which this representation and warranty
is made or deemed made, each of the Borrower and its Subsidiaries is Solvent,
both before and after giving effect to the transactions contemplated hereby
consummated on such date and to the incurrence of all Indebtedness and other
obligations incurred on such date in connection herewith and therewith.
9.24. Excluded Subsidiaries. The entities set forth in clause (a) and (b)
of the definition of "Excluded Subsidiaries" do not own or operate any Station,
broadcasting business or publishing business within the United States and either
own no assets or own only stock of Persons whose primary businesses are owning
or operating broadcasting businesses outside the United States. The entities set
forth in clause (c) of the definition of "Excluded Subsidiaries" are fifty-one
percent (51%) owned limited liability companies. The primary business of Country
Sampler Stores LLC is the retail sale of products advertised in "Country Sampler
Magazine". Game Warden Wildlife Journal, LLC ("Wildlife LLC") is a joint venture
between Emmis Publishing, L.P. and Game Warden, LLC whereby Game Warden, LLC
grants to Wildlife LLC a limited, non-exclusive license to utilize all content
and intellectual property belonging to Game Warden, LLC for the sole purpose of
the production of the magazine "Game Warden Wildlife Journal".
10. AFFIRMATIVE COVENANTS.
The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit, Note or other Obligation is
outstanding or any Lender has any obligation to make any Loans or the
Administrative Agent has any obligation to issue, extend or renew any Letters of
Credit:
10.1. Punctual Payment. The Borrower will duly and punctually pay or cause
to be paid the principal and interest on the Loans, all Reimbursement
Obligations, the Letter of Credit Fees, the Commitment Fees and all other fees
and amounts provided for in this Credit Agreement and the other Loan Documents
to which the Borrower or any of its Subsidiaries is a party, all in accordance
with the terms of this Credit Agreement and such other Loan Documents.
10.2. Maintenance of Office. (a) The Borrower will, and will cause each of
the Operating Subsidiaries to, maintain its chief executive office in
Indianapolis, Indiana, and (b) the Borrower will cause each of the License
Subsidiaries to maintain its chief executive office in Burbank, California, or,
in each case, at such other place in the United States of America as the
Borrower shall designate upon written notice to the Administrative Agent, where
notices, presentations and demands to or upon the Borrower in respect of the
Loan Documents to which the Borrower is a party may be given or made.
10.3. Records and Accounts. The Borrower will (a) keep, and cause each of
its Subsidiaries to keep, true and accurate records and books of account in
which full, true and correct entries will be made in accordance with GAAP, (b)
maintain adequate accounts and reserves for all taxes (including income taxes),
depreciation, depletion, obsolescence and amortization of its properties and the
properties of its Subsidiaries, contingencies, and other reserves, and (c) at
all times engage ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or ▇▇▇▇ Sapper & ▇▇▇▇▇▇ or other
independent certified public accountants reasonably satisfactory to the
Administrative Agent as the independent certified public accountants of the
Borrower and its Subsidiaries and will not permit more than thirty (30) days to
elapse between the cessation of such firm's (or any successor firm's) engagement
as the independent certified public accountants of the Borrower and its
Subsidiaries and the appointment in such capacity of a successor firm as shall
be satisfactory to the Administrative Agent.
10.4. Financial Statements, Certificates and Information. The
-----------------------------------------------------
Borrower will deliver to each of the Lenders:
(a) as soon as practicable, but in any event not later than one
hundred twenty (120) days after the end of each fiscal year of the
Borrower, the audited consolidated balance sheet of the Borrower and its
subsidiaries, each as at the end of such year, and the related audited
consolidated statements of income and audited consolidated statements of
cash flow, and unaudited consolidating statement of income for such year,
each setting forth in comparative form the figures for the previous fiscal
year and all such consolidated and consolidating statements to be in
reasonable detail, prepared in accordance with GAAP, and certified, in the
case of the audited consolidated financial statements without
qualification and without an expression of uncertainty as to the ability
of the Borrower or any of its Subsidiaries to continue as going concerns,
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or ▇▇▇▇ Sapper & ▇▇▇▇▇▇ or by other independent
certified public accountants reasonably satisfactory to the Administrative
Agent, together with a written statement from such accountants to the
effect that they have read a copy of this Credit Agreement, and that, in
making the examination necessary to said certification, they have obtained
no knowledge of any Default or Event of Default, or, if such accountants
shall have obtained knowledge of any then existing Default or Event of
Default they shall disclose in such statement any such Default or Event of
Default; provided that such accountants shall not be liable to the Lenders
for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than sixty
(60) days after the end of each of the fiscal quarters of the Borrower,
copies of the unaudited consolidated balance sheets of the Borrower and
its subsidiaries as at the end of such quarter, and the related
consolidated and consolidating statements of income and cash flows for the
fiscal quarter then ended, all in reasonable detail and prepared in
accordance with GAAP, together with a certification by the principal
financial or accounting officer of the Borrower that the information
contained in such financial statements fairly presents the financial
position of the Borrower and its subsidiaries on the date thereof (subject
to year-end adjustments);
(c) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, (i) a statement certified by
the principal financial or accounting officer of the Borrower in
substantially the form of Exhibit F hereto (a "Compliance Certificate")
and certifying that no Default or Event of Default is then continuing or
describing the nature and duration of any then continuing Default or Event
of Default and setting forth in reasonable detail computations evidencing
compliance with the covenants contained in ss.12 and (if applicable)
reconciliations to reflect changes in GAAP since the Balance Sheet Date,
and (ii) a statement of adjustments prepared by the principal financial or
accounting officer of the Borrower to exclude Excluded Subsidiaries from
the computations referenced in the preceding clause (i);
(d) contemporaneously with the filing or mailing thereof, copies (i)
of all material of a financial nature filed with the Securities and
Exchange Commission (including any registration statements) or sent to the
stockholders of the Borrower and (ii) any periodic or special reports of a
material nature filed with the FCC and relating to any Station owned or
operated by the Borrower or any of its Subsidiaries;
(e) promptly upon completion thereof and in any event no later than
sixty (60) days after the beginning of each fiscal year of the Borrower,
the Borrower's annual operating budget in the form of consolidated and
consolidating (on a Station-by-Station basis) financial projections for
such fiscal year and prepared on a quarterly basis and setting forth
projected operating results for each quarter in such fiscal year and for
the fiscal year as a whole, including projections of operating cash flow
together with a projection for the succeeding fiscal year with a quarterly
itemization of estimated taxes and Capital Expenditures for such
succeeding fiscal year, which are prepared on the basis of reasonable
assumptions; and
(f) from time to time such other financial data and information
(including accountants' management letters) as the Administrative Agent or
any Lender may reasonably request.
10.5. Notices.
10.5.1. Defaults. The Borrower will promptly notify the
Administrative Agent and each of the Lenders in writing of the occurrence
of any Default or Event of Default, together with a reasonably detailed
description thereof, and the actions the Borrower proposes to take with
respect thereto. If any Person shall give any notice or take any other
action in respect of a claimed default (whether or not constituting an
Event of Default) under this Credit Agreement or any other note, evidence
of indebtedness, indenture or other obligation in an amount equal to or
greater than $2,000,000 to which or with respect to which the Borrower or
any of its Subsidiaries is a party or obligor, whether as principal,
guarantor, surety or otherwise, the Borrower shall forthwith give written
notice thereof to the Administrative Agent and each of the Lenders,
describing the notice or action and the nature of the claimed default.
10.5.2. Environmental Events. The Borrower will promptly give notice
to the Administrative Agent and each of the Lenders (a) of any violation
of any Environmental Law that the Borrower or any of its Subsidiaries
reports in writing or is reportable by such Person in writing (or for
which any written report supplemental to any oral report is made) to any
Governmental Authority and (b) upon becoming aware thereof, of any
inquiry, proceeding, investigation, or other action, including a notice
from any agency of potential environmental liability, of any Governmental
Authority that could have a Material Adverse Effect.
10.5.3. Notification of Claim against Collateral. The Borrower will,
immediately upon becoming aware thereof, notify the Administrative Agent
and each of the Lenders in writing of any setoff, claims (including, with
respect to the Real Estate, environmental claims), withholdings or other
defenses to which any of the Collateral, or the Administrative Agent's
rights with respect to the Collateral, are subject.
10.5.4. Notice of Litigation and Judgments. The Borrower will, and
will cause each of its Subsidiaries to, give notice to the Administrative
Agent and each of the Lenders in writing within fifteen (15) days of
becoming aware of any litigation or proceedings threatened in writing or
any pending litigation and proceedings affecting the Borrower or any of
its Subsidiaries or to which the Borrower or any of its Subsidiaries is or
becomes a party involving an uninsured claim against the Borrower or any
of its Subsidiaries that could reasonably be expected to have a Material
Adverse Effect and stating the nature and status of such litigation or
proceedings. The Borrower will, and will cause each of its Subsidiaries
to, give notice to the Administrative Agent and each of the Lenders, in
writing, in form and detail reasonably satisfactory to the Administrative
Agent, within ten (10) days of any judgment not covered by insurance,
final or otherwise, against the Borrower or any of its Subsidiaries in an
amount in excess of $2,000,000.
10.6. Legal Existence; Maintenance of Properties. Except as otherwise
permitted under ss.ss.11.5.1(a) and 22, the Borrower will do or cause to be done
all things necessary to preserve and keep in full force and effect its legal
existence, rights and franchises and those of its Subsidiaries and will not, and
will not cause or permit any of its Subsidiaries to, convert to a limited
liability company or a limited liability partnership. Except as otherwise
permitted under ss.ss.11.5 and 22, the Borrower (i) will cause all of its
properties and those of its Subsidiaries used or useful in the conduct of its
business or the business of its Subsidiaries to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment,
(ii) will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Borrower may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times, (iii) will, and will cause
each of its Subsidiaries (other than the License Subsidiaries) to, continue to
engage primarily in the radio and television broadcasting and/or magazine
publishing businesses now conducted by each of them and in related businesses,
(iv) will cause each of the License Subsidiaries to engage solely in the
business of holding the FCC Licenses necessary for the Operating Subsidiaries to
operate the Stations operated by each of them, (v) will, and will cause each of
its Subsidiaries to, obtain, maintain, preserve, renew, extend and keep in full
force and effect all permits, rights, licenses, franchises, authorizations
patents, trademarks, copyrights and privileges necessary for the proper conduct
of its business, including FCC Licenses and (vi) will, and will cause each of
its Subsidiaries to, continue to engage primarily in the businesses now
conducted by them and in related businesses; provided that nothing in this
ss.10.6 shall prevent the Borrower from discontinuing the operation and
maintenance of any of its properties or any of those of its Subsidiaries if such
discontinuance is, in the judgment of the Borrower, desirable in the conduct of
its or their business and that do not in the aggregate have a Material Adverse
Effect.
10.7. Insurance.
The Borrower will, and will cause each of its Subsidiaries to, maintain
with financially sound and reputable insurers insurance with respect to its
properties and business against such casualties and contingencies as shall be in
accordance with the general practices of businesses engaged in similar
activities in similar geographic areas and in amounts, containing such terms, in
such forms and for such periods as may be reasonable and prudent and in
accordance with the terms of the Security Agreements, and to maintain business
interruption insurance in form reasonably satisfactory in all respects to the
Administrative Agent. In the event of any failure by the Borrower or any of its
Subsidiaries to provide and maintain insurance as required herein or in the
Security Documents to which such person is a party, the Administrative Agent may
after notice to the Borrower to such effect, provide such insurance and charge
the amount thereof to the Borrower and the Borrower hereby promises to pay to
the Administrative Agent on demand the amount of any disbursements made by the
Administrative Agent for such purpose. Within ninety (90) days of the end of
each fiscal year of the Borrower, the Borrower shall furnish to the
Administrative Agent certificates or other evidence satisfactory to the
Administrative Agent of compliance with the foregoing provisions.
10.8. Taxes. The Borrower will, and will cause each of its Subsidiaries
to, duly pay and discharge, or cause to be paid and discharged, before the same
shall become overdue, all taxes, assessments and other governmental charges
(other than taxes, assessments and other governmental charges imposed by foreign
jurisdictions that in the aggregate are not material to the business or assets
of the Borrower on an individual basis or of the Borrower and its Subsidiaries
on a consolidated basis) imposed upon it and its Real Estate, sales and
activities, or any part thereof, or upon the income or profits therefrom, as
well as all claims for labor, materials, or supplies that if unpaid might by law
become a Lien or charge upon any of its property unless failure to pay could not
reasonably be expected to cause a Material Adverse Effect; provided that any
such tax, assessment, charge, levy or claim need not be paid if the validity or
amount thereof shall currently be contested in good faith by appropriate
proceedings and if the Borrower or such Subsidiary shall have set aside on its
books adequate reserves with respect thereto; and provided further that the
Borrower and each Subsidiary of the Borrower will pay all such taxes,
assessments, charges, levies or claims forthwith upon the commencement of
proceedings to foreclose any Lien that may have attached as security therefor.
10.9. Inspection of Properties and Books, etc.
10.9.1. General. The Borrower shall permit the Lenders or any of the
Lenders' other designated representatives to visit and inspect any of the
properties of the Borrower or any of its Subsidiaries, to examine the
books of account of the Borrower and its Subsidiaries (and to make copies
thereof and extracts therefrom), and to discuss the affairs, finances and
accounts of the Borrower and its Subsidiaries with, and to be advised as
to the same by, its and their officers, all upon reasonable advance notice
to the Borrower and at such reasonable times and intervals as the
Administrative Agent or any Lender may reasonably request.
10.9.2. Appraisals. No more frequently than once each calendar year,
or more frequently as determined by the Administrative Agent if an Event
of Default shall have occurred and be continuing, upon the request of the
Administrative Agent, the Borrower will obtain and deliver to the
Administrative Agent appraisal reports in form and substance and from
appraisers satisfactory to the Administrative Agent, stating (a) the then
current fair market, orderly liquidation and forced liquidation values of
one or more of the Stations owned by the Borrower or its Subsidiaries,
business units that hold the publishing assets and/or the Mortgaged
Properties and (b) the then current business value of each of the Borrower
and its Subsidiaries. All such appraisals shall be conducted and made at
the expense of the Borrower.
10.9.3. Communications with Accountants. The Borrower authorizes the
Administrative Agent and, if accompanied by the Administrative Agent, the
Lenders to communicate directly with the Borrower's independent certified
public accountants and authorizes such accountants to disclose to the
Administrative Agent and the Lenders any and all financial statements and
other supporting financial documents and schedules including copies of any
management letter with respect to the business, financial condition and
other affairs of the Borrower or any of its Subsidiaries. At the request
of the Administrative Agent, the Borrower shall deliver a letter addressed
to such accountants instructing them to comply with the provisions of this
ss.10.9.3.
10.10. Compliance with Laws, Contracts, Licenses, and Permits.
(a) The Borrower will, and will cause each of its Subsidiaries to, comply
with (i) the applicable laws and regulations wherever its business is conducted,
including all Environmental Laws and the Communications Act, (ii) the provisions
of its Governing Documents, (iii) all agreements and instruments by which it or
any of its properties may be bound and (iv) all applicable decrees, orders, and
judgments, unless failure to comply could not reasonably be expected to cause a
Material Adverse Effect. If any authorization, consent, approval, permit or
license from any officer, agency or instrumentality of any government shall
become necessary or required in order that the Borrower or any of its
Subsidiaries may fulfill any of its obligations hereunder or any of the other
Loan Documents to which the Borrower or such Subsidiary is a party, the Borrower
will, or (as the case may be) will cause such Subsidiary to, immediately take or
cause to be taken all reasonable steps within the power of the Borrower or such
Subsidiary to obtain such authorization, consent, approval, permit or license
and furnish the Administrative Agent and the Lenders with evidence thereof.
(b) The Borrower will, and will cause each of its Subsidiaries to, (i)
operate its Stations, unless failure to comply could not reasonably be expected
to cause a Material Adverse Effect, in accordance with and in compliance with
the Communications Act, (ii) file in a timely manner all necessary applications
for renewal of all FCC Licenses that are material to the operations of its
Stations, (iii) use its reasonable best efforts to defend any proceedings which
could result in the termination, forfeiture or non-renewal of any FCC License,
and (iv) promptly furnish or cause to be furnished to the Administrative Agent:
(A) a copy of any order or notice of the FCC which designates any of the
Borrower's or any of its Subsidiaries' FCC Licenses for a hearing or which
refuses renewal or extension thereof, or reverses or suspends its or any of its
Subsidiaries' authority to operate a Station, (B) a copy of any competing
application filed with respect to any of its franchises, licenses (including FCC
Licenses), rights, permits, consents or other authorizations pursuant to which
the Borrower or any of the Borrower's Subsidiaries operates any Station, (C) a
copy of any citation, notice of violation or order to show cause issued by the
FCC in relation to any of the Borrower's or any of its Subsidiaries' Stations
and (D) a copy of any notice or application by the Borrower or any of its
Subsidiaries requesting authority to cease broadcasting on any Station or to
cease operating any Station for any period in excess of five (5) days.
10.11. Employee Benefit Plans. The Borrower will (a) promptly upon filing
the same with the Department of Labor or Internal Revenue Service, upon request
of the Administrative Agent, furnish to the Administrative Agent a copy of the
most recent actuarial statement required to be submitted under ss.103(d) of
ERISA and Annual Report, Form 5500, with all required attachments, in respect of
each Guaranteed Pension Plan, (b) promptly upon receipt or dispatch, furnish to
the Administrative Agent any notice, report or demand sent or received in
respect of a Guaranteed Pension Plan under ss.ss.302, 4041, 4042, 4043, 4063,
4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan, under
ss.ss.4041A, 4202, 4219, 4242, or 4245 of ERISA and (c) promptly upon request of
the Administrative Agent, furnish to the Administrative Agent a copy of all
actuarial statements required to be submitted under all Applicable Pension
Legislation.
10.12. Use of Proceeds. The Borrower will use the proceeds of the Loans
and obtain Letters of Credit solely for the purposes set forth in ss.9.17.1.
10.13. Additional Collateral. The Borrower will, and will cause each of
its Subsidiaries to, from time to time at its own cost and expense, promptly
secure or cause to be secured the Obligations by creating or causing to be
created in favor of the Administrative Agent for the benefit of the Lenders
perfected security interests (subject only to Permitted Liens) with respect to
all inventory, receivables, equipment, accounts, copyrights, patents,
trademarks, licenses, other general intangibles, Real Estate and other assets of
the Borrower and such Subsidiaries (other than Excluded Assets and non-material
assets which the Administrative Agent agrees in writing may be excluded),
whether now owned or hereafter acquired, to the extent the Administrative Agent
shall so request. All such security interests will be created under security
agreements, mortgages and other instruments and documents in form and substance
reasonably satisfactory to the Administrative Agent, and the Borrower shall
deliver to the Administrative Agent all such instruments and documents
(including, without limitation, legal opinions, title insurance policies and
lien searches) as the Administrative Agent shall reasonably request to evidence
the satisfaction of the obligations created by this ss.10.13. The Borrower
agrees to provide such evidence as the Administrative Agent shall reasonably
request as to the perfection and priority of such security interests (subject
only to Permitted Liens).
10.14. Interest Rate Protection. No later than ninety (90) days from the
date hereof (or, if the Initial Agents consent in writing to a ninety (90) day
extension of such period which consent shall not to be unreasonably withheld, no
later than one hundred eighty (180) days from the date hereof), the Borrower
will purchase or enter into an interest cap or swap or effect other interest
rate protection agreements having a term of not less than two (2) years as shall
be necessary to cap or fix the interest cost to the Borrower with respect to not
less than fifty percent (50%) of Consolidated Total Funded Debt outstanding at
such time, and from time to time thereafter, shall purchase or enter into an
additional interest cap or swap or effect other additional interest rate
protection agreements as shall be necessary to cap or fix the interest cost to
the Borrower with respect to not less than fifty percent (50%) of Total Funded
Debt outstanding from time to time during such two (2) year period, in each case
at rates and on terms and conditions reasonably satisfactory to the Initial
Agents. If at any time after such two (2) year period, the Total Leverage Ratio
as of the end of the fiscal quarter most recently ended is greater than or equal
to 6.00:1.00, the Borrower shall purchase or enter into an interest cap or swap
or effect other interest rate protection agreements as shall be necessary to cap
or fix the interest cost to the Borrower with respect to not less than fifty
percent (50%) of Total Funded Debt outstanding at such time, at rates and on
terms and conditions reasonably satisfactory to the Initial Agents.
10.15. Additional Subsidiaries. In the event that, after the date hereof,
the Borrower or any of its Subsidiaries creates any new Subsidiary or acquires a
new Subsidiary in accordance with ss.11.5.1, (a) such new Subsidiary shall,
concurrently with such event or as soon as practicable thereafter, execute and
deliver to the Administrative Agent an instrument of joinder and accession, in
form and substance reasonably satisfactory to the Administrative Agent, pursuant
to which such new Subsidiary shall join the applicable Security Documents as if
such new Subsidiary was an original signatory thereto, and (b) the Borrower
and/or such new Subsidiary (as the case may be) shall deliver such other
instruments and documents, including without limitation Perfection Certificates,
UCC financing statements and stock certificates representing all of the issued
and outstanding Capital Stock of such new Subsidiary with accompanying stock
powers duly executed in blank, in each case required to be executed or delivered
pursuant to such Security Documents in order to grant to or maintain the
Administrative Agent's, first priority perfected security interest in and to the
assets of and the Capital Stock issued by such new Subsidiaries. Further,
contemporaneously with the formation or acquisition of such new Subsidiary, the
Borrower and/or such new Subsidiary shall execute and/or deliver to the
Administrative Agent such other documentation as the Administrative Agent may
reasonably request in furtherance of the intent of this ss.10.15, including
without limitation an updated Schedule 9.19 hereto and documentation of the type
required to be supplied by the Borrower and its Subsidiaries as a condition
precedent to the initial Loans made hereunder pursuant to ss.13, as applicable
to such new Subsidiary or Permitted Acquisition.
10.16. FCC Licenses. On or prior to the date which is ninety (90) days
after the date hereof, the Borrower will cause the FCC licenses held by (i)
KOIN-TV, Inc. with respect to KOIN-TV, and (ii) Emmis 101.9-FM Radio Corporation
of New York with respect to WQCD-FM, New York, New York, to be transferred to a
License Subsidiary, provided that if the Borrower creates a new Subsidiary in
connection therewith, the Borrower shall comply with ss.10.15.
10.17. Dissolution of Certain Excluded Subsidiaries. On or prior to March
15, 2001, the Borrower will cause the dissolution of Emmis International
Corporation and Emmis Pledge Corporation, provided that if such Persons have not
been dissolved or merged into the Borrower by March 15, 2001, they shall be
Subsidiaries and shall join onto the Security Documents in the same manner as
would be required if they were newly formed Subsidiaries subject to the
provisions of ss.10.15 hereof.
10.18. Delivery of Environmental Reports. On or prior to the date which is
sixty (60) days following the Funding Date, the Borrower shall deliver to the
Administrative Agent either (a) a reliance letter in favor of the Lenders with
respect to the Phase I Environmental Site Assessment, Circle Block Garage, North
Illinois Street and Market Street, Indianapolis, Indiana, prepared on behalf of
Indianapolis Bond Bank, by ATC Associates, Inc., dated November 18, 1997, on the
Real Estate owned by the Borrower located at One Emmis Plaza, ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, in form and substance reasonably
satisfactory to the Initial Agents or (b) an updated Environmental Site
Assessment, together with a reliance letter in favor of the Lenders with respect
thereto in form and substance satisfactory to the Initial Agents, with respect
to such Real Estate in form and substance reasonably satisfactory to the Initial
Agents.
10.19. Further Assurances. The Borrower will, and will cause each of its
Subsidiaries to, cooperate with the Lenders and the Administrative Agent and
execute such further instruments and documents as the Lenders or the
Administrative Agent shall reasonably request to carry out to their satisfaction
the transactions contemplated by this Credit Agreement and the other Loan
Documents.
11. CERTAIN NEGATIVE COVENANTS.
The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit, Note or other Obligation is
outstanding or any Lender has any obligation to make any Loans or the
Administrative Agent has any obligations to issue, extend or renew any Letters
of Credit:
11.1. Restrictions on Indebtedness. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume, guarantee or be or
remain liable, contingently or otherwise, with respect to any Indebtedness other
than:
(a) Indebtedness owing to the Lenders and the Agents
arising under any of the Loan Documents;
(b) current liabilities of the Borrower or such Subsidiary (including
under any operating leases and studio and tower leases) incurred in the
ordinary course of business not incurred through (i) the borrowing of
money, or (ii) the obtaining of credit except for credit on an open
account basis customarily extended and in fact extended in connection with
normal purchases of goods and services;
(c) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the
ordinary course of business;
(d) Indebtedness in respect of (i) judgments or awards that have been
in force for less than the applicable period for taking an appeal so long
as execution is not levied thereunder or in respect of which the Borrower
or such Subsidiary (as the case may be) shall at the time in good faith be
prosecuting an appeal or proceedings for review and in respect of which a
stay of execution shall have been obtained pending such appeal or review,
(ii) final judgments against the Borrower or any of its Subsidiaries that
in the aggregate at any time do not exceed $5,000,000 and (iii) claims
which are currently being contested in good faith by appropriate
proceedings if adequate reserves shall have been set aside with respect
thereto;
(e) Subordinated Debt; provided that, in the case of the incurrence
of Additional Subordinated Debt by the Borrower or such Subsidiary, (i)
the Borrower applies the net cash proceeds of such Additional Subordinated
Debt in accordance with ss.5.4 and (ii) no Default or Event of Default has
occurred and is continuing at the time of the incurrence of such
Additional Subordinated Debt or would result after giving effect thereto;
(f) Indebtedness (i) incurred in connection with the acquisition
after the date hereof of any real or personal property by the Borrower or
such Subsidiary or under any Capitalized Lease or (ii) assumed by the
Borrower or any of its Subsidiaries in connection with a Permitted
Acquisition, provided that (x) the aggregate principal amount of such
Indebtedness of the Borrower and its Subsidiaries shall not exceed the
aggregate amount of $75,000,000 at any one time; and (y) the amount of
such Indebtedness does not exceed the value of the property so acquired
and (z) with respect to clause (ii) above, the assets securing such
Indebtedness are limited to the assets so acquired or which secured the
Indebtedness at the time it was assumed so long as such liens were not
granted or created in anticipation of such assumption;
(g) Indebtedness in respect of interest rate agreements, swaps or
similar arrangements entered into pursuant to ss.10.14 or to protect the
Borrower or any Subsidiary from changes in interest rates;
(h) Indebtedness existing on the date hereof and listed and
described on Schedule 11.1 hereto;
-------- ----
(i) Indebtedness of a Subsidiary of the Borrower owing to
the Borrower or of the Borrower or any Subsidiary to any
wholly-owned Subsidiary of the Borrower;
(j) Indebtedness in respect of taxes, assessments, governmental
charges or levies and claims for labor, materials and supplies to the
extent that payment therefor shall not at the time be required to be made
in accordance with the provisions of ss.10.8; and
(k) (i) other unsecured Indebtedness in an aggregate amount
outstanding at any one time not to exceed $25,000,000, provided that no
Default or Event of Default has occurred and is continuing at the time of
the incurrence of such unsecured Indebtedness or would result after giving
effect thereto.
11.2. Restrictions on Liens.
11.2.1. Permitted Liens. The Borrower will not, and will not permit
any of its Subsidiaries to, (a) create or incur or suffer to be created or
incurred or to exist any Lien upon any of its property or assets of any
character whether now owned or hereafter acquired, or upon the income or profits
therefrom; (b) transfer any of such property or assets or the income or profits
therefrom outside the ordinary course of business for the purpose of subjecting
the same to the payment of Indebtedness or performance of any other obligation
in priority to payment of its general creditors; (c) acquire, or agree or have
an option to acquire, any property or assets upon conditional sale or other
title retention or purchase money security agreement, device or arrangement; (d)
suffer to exist for a period of more than thirty (30) days after the same shall
have been incurred any Indebtedness or claim against it that if unpaid might by
law or upon bankruptcy or insolvency, or otherwise, be given any priority
whatsoever over its general creditors (other than in respect of de minimus
amounts); or (e) sell, assign, pledge or otherwise transfer any "receivables" as
defined in clause (g) of the definition of the term "Indebtedness," with or
without recourse (other than in connection with the disposition of the business
operations of such Person relating thereto or a disposition of defaulted
receivables for collection and not as a financing arrangement); provided that
the Borrower or any of its Subsidiaries may create or incur or suffer to be
created or incurred or to exist:
(i) Liens in favor of the Borrower on all or part of the
assets of Subsidiaries of the Borrower securing Indebtedness
owing by Subsidiaries of the Borrower to the Borrower;
(ii) Liens to secure taxes, assessments and other government charges
in respect of obligations not overdue or that are being diligently
contested in good faith and in respect of which appropriate reserves have
been set aside or Liens on properties to secure claims for labor, material
or supplies in respect of obligations not overdue or that are being
diligently contested in good faith and in respect of which appropriate
reserves have been set aside;
(iii)deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age
pensions or other social security obligations which are not overdue;
(iv) Liens on properties in respect of judgments or awards that have
been in force for less than the applicable period for taking an appeal so
long as execution is not levied thereunder or in respect of which the
Borrower or such Subsidiary (as the case may be) shall at the time in good
faith be prosecuting an appeal or proceedings for review and in respect of
which a stay of execution shall have been obtained pending such appeal or
review, the Indebtedness with respect to which is permitted by ss.11.1(d);
(v) Liens of carriers, warehousemen, mechanics and materialmen, and
other like Liens on properties, in existence less than one hundred twenty
(120) days from the date of creation thereof in respect of obligations not
overdue;
(vi) encumbrances on Real Estate consisting of easements, rights of
way, zoning restrictions, restrictions on the use of real property and
defects and irregularities in the title thereto, landlord's or lessor's
liens and other minor Liens, provided that none of such Liens (A)
interferes materially with the use of the property affected in the
ordinary conduct of the business of the Borrower and its Subsidiaries, and
(B) individually or in the aggregate have a Material Adverse Effect;
(vii)Liens existing on the date hereof and listed on
Schedule 11.2 hereto;
----
(viii) purchase money security interests in or purchase money
mortgages on real or personal property other than Mortgaged Properties
acquired after the date hereof to secure Capitalized Leases or purchase
money Indebtedness, in each case of the type and amount permitted by
ss.11.1(f) Capitalized Leases or, incurred in connection with the
acquisition of such property, which security interests or mortgages cover
only the real or personal property so acquired or leased;
(ix) Liens on each Mortgaged Property as and to the extent
permitted by the Mortgage applicable thereto; and
(x) Liens in favor of the Administrative Agent for the benefit of the
Lenders and the Administrative Agent under the Loan Documents and any
Interest Rate Agreements;
(xi) Liens on leasehold interests created by the Borrower or any of
its Subsidiaries, as lessee, in favor of any mortgagee of the leased
premises to the extent not prohibited by the terms of the lease; and
(xii)Liens securing Indebtedness permitted by ss.11.1(f)(ii).
11.2.2. Restrictions on Negative Pledges and Upstream
Limitations. The Borrower will not, nor will it permit any of its
Subsidiaries to, (a) enter into or permit to exist any arrangement or
agreement (other than the Credit Agreement and the other Loan Documents)
which directly or indirectly prohibits the Borrower or any of its
Subsidiaries from creating, assuming or incurring any Lien upon its
properties, revenues or assets or those of any of its Subsidiaries whether
now owned or hereafter acquired to secure the Obligations (other than
restrictions on specific assets, which assets are the subject of purchase
money security interests to the extent permitted under ss.11.2.1(viii)),
or (b) enter into any agreement, contract or arrangement (excluding the
Credit Agreement and the other Loan Documents) restricting the ability of
any Subsidiary of the Borrower to pay or make dividends or distributions
in cash or kind to the Borrower, to make loans, advances or other payments
of any nature to the Borrower, or to make transfers or distributions of
all or any part of its assets to the Borrower; in each case other than (i)
restrictions on specific assets which assets are the subject of purchase
money security interests to the extent permitted under ss.11.2.1(viii),
and (ii) customary anti-assignment provisions contained in leases and
licensing agreements entered into by the Borrower or such Subsidiary in
the ordinary course of its business and (iii) property subject to a
pending Asset Sale which would be permitted under ss.11.5.2 if and from
which an executed purchase agreement has been delivered to the
Administrative Agent.
11.3. Restrictions on Investments. The Borrower will not, and will not
permit any of its Subsidiaries to, make or permit to exist or to remain
outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United States
of America that mature within one (1) year from the date of purchase by
the Borrower;
(b) demand deposits, certificates of deposit, bank acceptances and
time deposits of United States banks having total assets in excess of
$1,000,000,000;
(c) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States of
America or any state thereof that at the time of purchase have been rated
and the ratings for which are not less than "P 1" if rated by ▇▇▇▇▇'▇, and
not less than "A 1" if rated by S&P;
(d) Investments existing on the date hereof and listed on
Schedule 11.3 hereto;
-------- ----
(e) Investments in the Borrower and in Subsidiaries, either in the
form of equity Investments or Indebtedness permitted by ss.11.1(i) so long
as such entities remain the Borrower or Subsidiaries of the Borrower;
(f) Investments consisting of the Guaranty;
(g) Investments consisting of promissory notes received as
proceeds of asset dispositions permitted byss.11.5.2;
(h) Investments consisting of loans and advances to employees for
moving, entertainment, travel and other similar expenses in the ordinary
course of business not to exceed $1,000,000 in the aggregate at any time
outstanding;
(i) Investments by the Borrower or a Subsidiary of the Borrower in
Subsidiaries formed for the purpose of consummating Permitted Acquisitions
or acquired in connection with Permitted Acquisitions;
(j) other Investments; provided that (i) at the time such Investment
is made, the aggregate amount of all Investments made by the Borrower or
any of its Subsidiaries under this clause (j) after the date hereof and
after giving effect to such Investment shall not exceed (A) if at the time
such Investment is made the Total Leverage Ratio on a Pro Forma Basis
after giving effect to such Investments is greater than 6.00:1.00,
$50,000,000 net of cash returns of capital received with respect to any
Investments made under this clause (j) after the date hereof, or (B) if at
the time such Investment is made the Total Leverage Ratio on a Pro Forma
Basis after giving effect to such Investments is less than or equal to
6.00:1.00, $100,000,000 net of cash returns of capital received with
respect to any Investments made under this clause (j) after the date
hereof, (ii) no Default or Event of Default has occurred and is continuing
at the time such Investment is made or would result on a Pro Forma Basis
therefrom after taking into account any Loans advanced to finance such
Investment, and (iii) the Borrower delivers to the Administrative Agent a
duly executed certificate substantially in the form of Exhibit G hereto in
connection with such Investment;
provided, however, that, with the exception of Investments referred to in
ss.11.3(a), (b) and (c) and loans and advances referred to in ss.11.3(h) and
Excluded Assets, such Investments will be considered Investments permitted by
this ss.11.3 only if all actions have been taken to the reasonable satisfaction
of the Administrative Agent to provide to the Administrative Agent, for the
benefit of the Lenders and the Administrative Agent, a first priority perfected
security interest in all of such Investments free of all Liens other than
Permitted Liens.
11.4. Restricted Payments. The Borrower will not, and will not permit any
of its Subsidiaries to, make any Restricted Payments, provided, however, that
(a) so long as (i) the payment is permitted by the terms thereof, the Borrower
may make scheduled payments of interest on Subordinated Debt permitted by
ss.11.1(e), (ii) so long as no Default or Event of Default exists or would
result from such payment, declare or pay any scheduled dividend on the preferred
stock issued by the Borrower, (iii) make cash payments to its employees pursuant
to its profit sharing plan, as in effect on the date hereof, in exchange for
fractional shares of the Common Stock, and (iv) make payments in an aggregate
amount not to exceed $25,000,000 to repurchase shares of the Common Stock,
provided that with respect to the payments referred to in clauses (i) and (ii)
above, the Borrower delivers a duly executed certificate substantially in the
form of Exhibit G hereto; and (b) Subsidiaries of the Borrower may make
Restricted Payments to the Borrower or any wholly-owned Subsidiary of the
Borrower,
11.5. Merger, Consolidation, Acquisition and Disposition of
Assets.
11.5.1. Mergers and Acquisitions. The Borrower will not, and will not
permit any of its Subsidiaries to, become a party to any merger,
amalgamation or consolidation, or agree to or effect any asset acquisition
or stock acquisition, or enter into any LMA Agreement, except:
(a) (i) the merger or consolidation of one (1) or more of the
Operating Subsidiaries of the Borrower with and into the Borrower, or the
merger or consolidation of two (2) or more wholly-owned (A) Operating
Subsidiaries or (B) License Subsidiaries of the Borrower, or (ii) the
mergers and consolidations to be consummated in the Reorganization
permitted by ss.22;
(b) the acquisition (whether pursuant to an Asset Swap or otherwise)
of stock, or other securities of, or any assets of, any Person, in each
case to the extent such acquisition would involve all or substantially all
of a radio broadcasting, television broadcasting or publishing business or
business unit thereof, provided that:
(i) no Default or Event of Default has occurred and is
continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the
consummation of such proposed acquisition, the Borrower shall have
delivered to the Initial Agents a duly executed certificate
substantially in the form of Exhibit G hereto, together with such
financial projections as shall be necessary, in the reasonable
judgment of the Initial Agents, to demonstrate that, after giving
effect to such acquisition, all covenants contained herein will be
satisfied on a Pro Forma Basis and that the Borrower's ability to
satisfy its payment obligations hereunder and under the other Loan
Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction
of the Administrative Agent to provide to the Administrative Agent,
for the benefit of the Lenders and the Administrative Agent, a first
priority perfected security interest in all of the assets so acquired
(excluding any Excluded Assets and non-material assets which the
Administrative Agent agrees may be excluded) pursuant to the Security
Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person
shall become a wholly-owned Subsidiary of the Borrower and shall
comply with the terms and conditions set forth in ss.10.15;
(v) the board of directors and (if required by
applicable law) the shareholders, or the equivalent thereof,
of the business to be acquired has approved such acquisition;
(vi) all of the Borrower's and/or its Subsidiaries' (as the case
may be) rights and interests in, to and under each contract and
agreement entered into by such Person in connection with such
acquisition to the extent permitted have been assigned to the
Administrative Agent as security for the irrevocable payment and
performance in full of the Obligations, pursuant to Collateral
Assignments of Contracts in form and substance reasonably
satisfactory to Administrative Agent;
(vii) the FCC shall have issued orders approving or
consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative
Agent evidence reasonably satisfactory to the Administrative Agent
that all liens and encumbrances with respect to the properties and
assets so acquired, other than Permitted liens, have been discharged
in full;
(ix) the Borrower shall have delivered to the Administrative
Agent (A) evidence satisfactory to the Administrative Agent that the
Borrower or such Subsidiary has completed such acquisition in
accordance with the terms of the contracts and agreements entered
into by such Person in connection with such acquisition, and (B)
certified copies of all such documents shall have been delivered to
the Administrative Agent;
(x) all FCC Licenses acquired in connection with such
acquisition shall be transferred immediately upon consummation of
such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the
Borrower shall have delivered to the Administrative Agent an updated
Schedule 9.3(b) and an updated Schedule 9.21 to this Credit
Agreement, as applicable, after giving effect to such acquisition.
(c) the Hearst-Argyle Transaction and the Denver Transaction,
provided that (i) each of the conditions set forth in clause (b) above
have been satisfied, and (ii) the Borrower shall have delivered to the
Administrative Agent fully executed copies (complete with schedules and
attachments thereto) of the Hearst-Argyle Acquisition Documents or the
Denver Acquisition Documents, as the case may be, certified by an officer
of the Borrower to be true, complete and accurate copies of such documents
and (iii) each such transaction shall be consummated in accordance with
the terms of the Hearst-Argyle Acquisition Documents or the Denver
Acquisition Documents, as the case may be, in all material respects;
(d) other media-related acquisitions not included in clause (b) or
(c) above, provided that (i) the aggregate purchase price for all such
acquisitions shall not exceed $100,000,000, and (ii) each of the
conditions set forth in clause (b) above have been satisfied; and
(e) the Borrower or any of its Subsidiaries may enter into LMA
Agreements provided that (i) at the time the Borrower or such Subsidiary
enters into an LMA Agreement, no Default or Event of Default has occurred
and is then continuing or could reasonably be expected to result as a
consequence of entering into such LMA Agreement, (ii) if (A) the Borrower
or any of its Subsidiaries has acquired an option to acquire a Station or
is otherwise obligated to purchase a Station in connection with such LMA
Agreement or in a related transaction or (B) such LMA Agreement is
material as determined in the reasonable judgment of the Initial Agents
after consultation with the Borrower, all of the Borrower's and/or its
Subsidiaries' (as the case may be) rights and interests in, to and under
each such LMA Agreement shall have been assigned to the Administrative
Agent as security for the irrevocable payment and performance in full of
the Obligations, pursuant to Collateral Assignments of Contracts in form
and substance satisfactory to Administrative Agent, (iii) if such LMA
Agreement contemplates a Station acquisition, such Station acquisition
must satisfy the provisions of clause (b) above, (iv) if such LMA
Agreement contemplates an Asset Sale or Asset Swap, such Asset Sale or
Asset Swap is otherwise permitted pursuant to ss.11.5 hereof, and (v) the
Borrower shall have delivered to the Administrative Agent a duly executed
certificate substantially in the form of Exhibit G hereto.
11.5.2. Disposition of Assets. The Borrower will not, and will not
permit any of its Subsidiaries to, become a party to or agree to or effect
any disposition or swap of assets, other than (a) the sale of inventory,
(b) the licensing of intellectual property, (c) the disposition of
obsolete assets, in each case in the ordinary course of business
consistent with past practices, (d) the sale of receivables in connection
with the business operations of such Person relating thereto or
disposition of defaulted receivables for collection and not as a financing
arrangement, and (e) Asset Sales or Asset Swaps provided that in the case
of such Asset Sale or Asset Swap, (i) no Default or Event of Default has
occurred and is continuing or would result on a Pro Forma Basis from such
Asset Sale or Asset Swap, (ii) in the case of an Asset Sale, at least
eighty percent (80%) of the consideration received by the Borrower or such
Subsidiary in connection with any such Asset Sale is in the form of cash
(provided that (A) Investments permitted hereunder and converted to cash
within thirty (30) days and (B) any Indebtedness secured by the assets
sold and assumed by the buyer shall be treated as cash proceeds for
purposes of calculating compliance with the eighty percent (80%)
requirement set forth in this clause (ii) but not for purposes of
calculating Net Cash Sale Proceeds), (iii) each such Asset Sale or Asset
Swap is consummated on an arm's length basis for fair consideration, (iv)
the Borrower applies the Net Cash Sale Proceeds received by the Borrower
or any of its Subsidiaries in connection with such Asset Sale or Asset
Swap in accordance with ss.5.2 and (v) contemporaneously with such Asset
Sale or Asset Swap, the Borrower shall have delivered to the
Administrative Agent an updated Schedule 9.3(b) and/or Schedule 9.21, as
applicable, after giving effect to such Asset Sale or Asset Swap.
11.6. Sale and Leaseback. The Borrower will not, and will not permit any
of its Subsidiaries to, enter into any arrangement, directly or indirectly,
whereby the Borrower or any Subsidiary of the Borrower shall sell or transfer
any property owned by it in order then or thereafter to lease such property or
lease other property that the Borrower or any Subsidiary of the Borrower intends
to use for substantially the same purpose as the property being sold or
transferred, provided, however, the Borrower or any of its Subsidiaries may sell
equipment which constitutes Capital Assets which have been acquired by such
Person within 180 days prior to such sale and thereafter lease back such
equipment provided that (a) the liabilities under such leaseback arrangements in
aggregate with Indebtedness incurred under Capitalized Leases and permitted
under ss.11.1(f) shall not exceed an aggregate amount of $75,000,000 at any one
time and (b) the proceeds of such sale shall be treated as Net Cash Sale
Proceeds and applied to prepay the Obligations in accordance with ss.5.2.
11.7. Compliance with Environmental Laws. The Borrower will not, and will
not permit any of its Subsidiaries to, (a) use any of the Real Estate or any
portion thereof for the handling, processing, storage or disposal of Hazardous
Substances, (b) cause or permit to be located on any of the Real Estate any
underground tank or other underground storage receptacle for Hazardous
Substances, (c) generate any Hazardous Substances on any of the Real Estate, (d)
conduct any activity at any Real Estate or use any Real Estate in any manner so
as to cause a release (i.e. releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, disposing or
dumping) or threatened release of Hazardous Substances on, upon or into the Real
Estate or (e) otherwise conduct any activity at any Real Estate or use any Real
Estate in any manner that in any of clauses (a) through (e) would violate any
Environmental Law or bring such Real Estate in violation of any Environmental
Law, except where failure to comply could not reasonably be expected to result
in a Material Adverse Effect.
11.8. Subordinated Debt. The Borrower will not, and will not permit any of
its Subsidiaries to, amend, supplement or otherwise modify the terms of any of
the Subordinated Note Documents or any other agreement relating to Subordinated
Debt or prepay, redeem or repurchase any of the Subordinated Debt, provided,
however, this ss.11.8 shall not restrict the right of the Borrower to amend the
Subordinated Notes or any other document evidencing Subordinated Debt to extend
the maturity thereof or amend any covenants therein so as to make such covenants
less restrictive for the Borrower and its subsidiaries.
11.9. Employee Benefit Plans. Neither the Borrower nor any
------------------------
ERISA Affiliate will:
(a) engage in any "prohibited transaction" within the meaning of
ss.406 of ERISA or ss.4975 of the Code which could result in a material
liability for the Borrower or any of its Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an "accumulated
funding deficiency", as such term is defined in ss.302 of ERISA, whether
or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an extent
which, or terminate any Guaranteed Pension Plan in a manner which, could
result in the imposition of a lien or encumbrance on the assets of the
Borrower or any of its Subsidiaries pursuant to ss.302(f) or ss.4068 of
ERISA; or
(d) amend any Guaranteed Pension Plan in circumstances
requiring the posting of security pursuant toss.307 of ERISA or
ss.401(a)(29) of the Code;
(e) permit or take any action which would result in the aggregate
benefit liabilities (with the meaning of ss.4001 of ERISA) of all
Guaranteed Pension Plans exceeding the value of the aggregate assets of
such Plans, disregarding for this purpose the benefit liabilities and
assets of any such Plan with assets in excess of benefit liabilities; or
(f) permit or take any action which would contravene any Applicable
Pension Legislation in any way which could reasonably be expected to have
a Material Adverse Effect.
11.10. Fiscal Year. The Borrower will not, and will not permit any of it
Subsidiaries to, change the date of the end of its fiscal year from that set
forth in ss.9.4.1.
11.11. Transactions with Affiliates. The Borrower will not, and will not
permit any of its Subsidiaries to, engage in any transaction with any Affiliate
(other than for services as employees, officers and directors), including any
contract, agreement or other arrangement providing for the furnishing of
services to or by, providing for rental of real or personal property to or from,
or otherwise requiring payments to or from any such Affiliate or, to the
knowledge of the Borrower, any corporation, partnership, trust or other entity
in which any such Affiliate has a substantial interest or is an officer,
director, trustee or partner, on terms more favorable to such Person than would
have been obtainable on an arm's-length basis in the ordinary course of
business.
11.12. Certain Intercompany Matters. The Borrower will not permit any of
its Excluded Subsidiaries to, (a) fail to satisfy customary formalities with
respect to organization separateness, including (i) the maintenance of separate
books and records and (ii) the maintenance of separate bank accounts in its own
name, (b) fail to act solely in its own name and through its authorized officers
and agents, (c) commingle any money or other assets of any Excluded Subsidiary
with any money or other assets of the Borrower or any other Subsidiary of the
Borrower, or (d) take any action, or conduct its affairs in a manner, which
could reasonably be expected to result in the separate organizational existence
of the Excluded Subsidiaries being ignored under any circumstance.
12. FINANCIAL COVENANTS.
The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Lender
has any obligation to make any Loans or the Administrative Agent has any
obligation to issue, extend or renew any Letters of Credit, the Borrower will
comply with the following financial covenants calculated on a Pro Forma Basis
with respect to any Permitted Acquisitions which occurred during the relevant
Test Period:
12.1. Total Leverage Ratio. The Borrower will not permit the Total
Leverage Ratio as of the last day of each fiscal quarter of the Borrower ending
during any period described in the table set forth below to exceed the ratio set
forth opposite such period in such table:
---------------------------------------------------------------
Period (inclusive of dates) Ratio
---------------------------------------------------------------
---------------------------------------------------------------
date hereof -- 5/31/01 7.25:1.00
---------------------------------------------------------------
---------------------------------------------------------------
6/1/01 -- 8/31/01 6.90:1.00
---------------------------------------------------------------
---------------------------------------------------------------
9/1/01 -- 8/31/02 6.50:1.00
---------------------------------------------------------------
---------------------------------------------------------------
9/01/02 -- 2/28/03 6.00:1.00
---------------------------------------------------------------
---------------------------------------------------------------
3/01/03 -- 8/31/03 5.50:1.00
---------------------------------------------------------------
---------------------------------------------------------------
9/01/03 -- 2/29/04 5.00:1.00
---------------------------------------------------------------
---------------------------------------------------------------
3/01/04 -- 8/31/04 4.50:1.00
---------------------------------------------------------------
---------------------------------------------------------------
Thereafter 4.00:1.00
---------------------------------------------------------------
12.2. Senior Leverage Ratio. The Borrower will not permit the Senior
Leverage Ratio as of the last day of each fiscal quarter of the Borrower ending
during any period described in the table set forth below to exceed the ratio set
forth opposite such period in such table:
---------------------------------------------------------------
Period (inclusive of dates) Ratio
---------------------------------------------------------------
---------------------------------------------------------------
date hereof -- 5/31/01 5.85:1.00
---------------------------------------------------------------
---------------------------------------------------------------
6/1/01 -- 8/31/01 5.75:1.00
---------------------------------------------------------------
---------------------------------------------------------------
9/1/01 -- 8/31/02 5.25:1.00
---------------------------------------------------------------
---------------------------------------------------------------
9/01/02 -- 2/28/03 4.75:1.00
---------------------------------------------------------------
---------------------------------------------------------------
3/01/03 -- 8/31/03 4.25:1.00
---------------------------------------------------------------
---------------------------------------------------------------
9/01/03 -- 2/29/04 3.75:1.00
---------------------------------------------------------------
---------------------------------------------------------------
3/01/04 -- 8/31/04 3.25:1.00
---------------------------------------------------------------
---------------------------------------------------------------
Thereafter 3.00:1.00
---------------------------------------------------------------
12.3. Interest Coverage Ratio. The Borrower will not permit the Interest
Coverage Ratio as of the last day of each fiscal quarter of the Borrower ending
during any period described in the table set forth below to be less than the
ratio set forth opposite such period in such table:
---------------------------------------------------------------
Period (inclusive of dates) Ratio
---------------------------------------------------------------
---------------------------------------------------------------
date hereof -- 11/30/01 1.50:1.00
---------------------------------------------------------------
---------------------------------------------------------------
12/01/01 -- 11/30/02 1.75:1.00
---------------------------------------------------------------
---------------------------------------------------------------
12/01/02 -- 2/28/03 2.00:1.00
---------------------------------------------------------------
---------------------------------------------------------------
3/01/03 -- 2/29/04 2.25:1.00
---------------------------------------------------------------
---------------------------------------------------------------
3/01/04 -- 2/28/05 2.50:1.00
---------------------------------------------------------------
---------------------------------------------------------------
Thereafter 3.00:1.00
---------------------------------------------------------------
12.4. Pro Forma Fixed Charge Coverage Ratio. As at the end of each fiscal
quarter of the Borrower, the Borrower will not permit the Pro Forma Fixed Charge
Coverage Ratio to be less than 1.10:1.00.
13. CLOSING CONDITIONS.
The obligations of the Lenders to make the initial Revolving Credit Loans
and the Term Loans and of the Administrative Agent to issue any initial Letters
of Credit shall be subject to the satisfaction of the following conditions
precedent on or prior to January 5, 2001:
13.1. Loan Documents.
Each of the Loan Documents shall have been duly executed and delivered by
the respective parties thereto, shall be in full force and effect and shall be
in form and substance satisfactory to each of the Lenders.
13.2. Certified Copies of Governing Documents. The Administrative Agent
shall have received from the Borrower and each of its Subsidiaries a copy,
certified by a duly authorized officer of such Person to be true and complete on
the Funding Date, of each of its Governing Documents as in effect on such date
of certification.
13.3. Corporate or Other Action. All corporate (or other) action necessary
for the valid execution, delivery and performance by the Borrower and each of
its Subsidiaries of this Credit Agreement and the other Loan Documents to which
it is or is to become a party shall have been duly and effectively taken, and
evidence thereof satisfactory to the Lenders shall have been provided to each of
the Lenders.
13.4. Officer's Certificates. (a) The Administrative Agent shall have
received from the Borrower and each of its Subsidiaries an incumbency
certificate, dated as of the Funding Date, signed by a duly authorized officer
of the Borrower or such Subsidiary, and giving the name and bearing a specimen
signature of each individual who shall be authorized: (i) to sign, in the name
and on behalf of each of the Borrower of such Subsidiary, each of the Loan
Documents to which the Borrower or such Subsidiary is or is to become a party;
(ii) in the case of the Borrower, to make Loan Requests and Conversion Requests
and to apply for Letters of Credit; and (iii) to give notices and to take other
action on its behalf under the Loan Documents.
(b) The Administrative Agent shall have received from the Borrower a
certificate, dated as of the Funding Date, certifying that (i) each of the
representations and warranties of any of the Borrower and its Subsidiaries
contained in this Credit Agreement and the other Loan Documents are true and
correct on the Funding Date as though made on such date, and (ii) each of the
conditions set forth in ss.13 of the Credit Agreement have been satisfied.
13.5. Validity of Liens. The Security Documents shall be effective to
create in favor of the Administrative Agent a legal, valid and enforceable first
priority (except for Permitted Liens entitled to priority under applicable law)
security interest in and Lien upon the Collateral. All filings, recordings,
deliveries of instruments and other actions necessary or desirable in the
opinion of the Administrative Agent to protect and preserve such security
interests shall have been duly effected or provided for. The Administrative
Agent shall have received evidence thereof in form and substance satisfactory to
the Administrative Agent.
13.6. Perfection Certificates, UCC Search Results and SurveyThe
Administrative Agent shall have received from each of the Borrower and its
Subsidiaries a completed and fully executed Perfection Certificate and shall
have received the results of UCC searches with respect to the Collateral,
indicating no Liens other than Permitted Liens and otherwise in form and
substance satisfactory to the Administrative Agent.
(b) The Administrative Agent shall have received the most recent survey of
each Mortgaged Property, properly signed, sealed and certified, coupled with an
owner's affidavit and indemnity acceptable to the title company certifying no
change to such property from the date of the survey through the Funding Date (so
as to allow title company to delete the survey exception) together with such
related documents as the Administrative Agent may reasonably request.
13.7. Title Insurance. The Administrative Agent shall have received a
Title Policy covering each Mortgaged Property (or commitments to issue such
policies, with all conditions to issuance of the Title Policy deleted by an
authorized agent of the Title Insurance Company) together with proof of payment
of all fees and premiums for such policies, from the Title Insurance Company and
in amounts reasonably satisfactory to the Administrative Agent, insuring the
interest of the Administrative Agent and each of the Lenders as mortgagee under
the Mortgages.
13.8. Financial Statements.
The Administrative Agent shall have received copies of the unaudited
consolidated balance sheets of the Borrower and its subsidiaries as at November
30, 2000 and the related consolidated and consolidating statement of income for
the portion of the Borrower's fiscal year then elapsed, all in reasonable detail
and prepared in accordance with GAAP, together with a certification by the
principal financial or accounting officer of the Borrower that the information
contained in such financial statements fairly represents the financial position
of the Borrower and its Subsidiaries on the date thereof.13.9. FCC Licenses;
Third Party Consents.
(a) The Borrower shall have furnished to the Administrative Agent
certified copies of all FCC Licenses necessary for the operation of the business
of each of the Borrower and its Subsidiary, or necessary for the operation of
any Station owned by the Borrower or any of the Subsidiaries.
(b) The Borrower shall have furnished to the Administrative Agent
certified copies of all agreements pursuant to which the Operating Subsidiaries
shall have acquired the rights to use the FCC Licenses held by the License
Subsidiaries.
(c) All other necessary governmental and third party consents to and
notices of the transactions contemplated by the Loan Documents shall have been
obtained and given, and evidence thereof satisfactory to the Administrative
Agent shall have been provided to the Administrative Agent.
(d) The Borrower shall have furnished to the Administrative Agent evidence
reasonably satisfactory to the Initial Agents of the Borrower's compliance with
Regulation U of the Board of Governors of the Federal Reserve System, 12 C.F.R.
Part 221.
13.10. Certificates of Insurance. The Administrative Agent shall have
received a certificate of insurance from an independent insurance broker dated
as of the Funding Date, identifying insurers, types of insurance, insurance
limits, and policy terms, and otherwise describing the insurance obtained in
accordance with the provisions of the Security Agreements and naming the
Administrative Agent as additional insured and, on all casualty insurance, loss
payee.
13.11. Opinion of Counsel. Each of the Lenders and the Administrative
Agent shall have received a favorable legal opinion addressed to the Lenders and
the Administrative Agent, dated as of the Funding Date, in form and substance
satisfactory to the Lenders and the Administrative Agent, from:
(a) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to
the Borrower and its Subsidiaries;
(b) counsel to the Borrower and its Subsidiaries in Indiana
and California as applicable; and
(c) FCC counsel to the Borrower and its Subsidiaries.
13.12. Compliance Certificate. The Administrative Agent shall have
received from the Borrower a Compliance Certificate demonstrating compliance
with the covenants set forth in ss.12 as of the Funding Date (provided that, for
purposes of this ss.13.12, the Borrower shall use Consolidated Operating Cash
Flow for the Reference Period ended November 30, 2000), together with a
certificate from the principal financial or accounting officer of the Borrower
certifying that no Default or Event of Default has occurred and is continuing as
of the Funding Date.
13.13. Senior Debt Certificate. The Administrative Agent shall have
received from the Borrower a certificate from the principal financial or
accounting officer of the Borrower certifying that the Obligations of the
Borrower and its Subsidiaries arising under this Credit Agreement and the other
Loan Documents constitute "Senior Debt" under and as defined in the Subordinated
Note Indenture, and the incurrence of such Obligations is permitted under
ss.4.09 of the Subordinated Note Indenture and will not cause a "Default" or
"Event of Default" under and as defined in the Subordinated Note Indenture.
13.14. Financial Condition. The Administrative Agent shall be satisfied
and shall have received an officer's certificate certifying that there has been
no event or occurrence which has had a Material Adverse Effect since the Balance
Sheet Date.
13.15. Payment of Fees. The Borrower shall have paid to the Lenders or the
Administrative Agent, as appropriate, the Fees pursuant to ss.ss.7.1 and 7.2 and
all fees and expenses of the Administrative Agent's Special Counsel and the
expenses of the Administrative Agent.
13.16. Disbursement Instructions. The Administrative Agent shall have
received Loan Requests and disbursement instructions from the Borrower with
respect to the proceeds of the Loans to be made on the Funding Date.
13.17. Sources and Uses of Cash; Refinancing of Loans. The Administrative
Agent shall have received a statement of the sources and uses of proceeds of the
Loans advanced hereunder as of the date hereof and evidence reasonably
satisfactory to the Administrative Agent that all outstanding loans under the
Existing Credit Agreement shall have been refinanced on the Funding Date and all
interest accrued under such loans paid as of the Funding Date.
13.18. Administrative Agent Fee Letter.
The Administrative Agent Fee Letter shall have been duly executed and
delivered by the respective parties thereto, shall be in full force and effect
and shall be in form and substance satisfactory to the Administrative Agent and
the Administrative Agent shall have received a fully executed copy of such
document.
13.19. Accountant's Letter. The Administrative Agent shall have received a
copy of the letter to the Borrower's accountants pursuant to ss.10.9.3.
13.20. Payoff and Termination. The Administrative Agent shall have
received a payoff and termination letter executed by the Borrower and in form
and substance satisfactory to the Administrative Agent, indicating the amount of
the loan obligations of the Borrower under the Existing Credit Agreement to be
discharged on the Funding Date.
13.21. Evidence of Merger. The Administrative Agent shall have received
from the Borrower a copy of the certificates of merger certified by the
Secretary of State of Indiana with respect to the merger of Emmis FM
Broadcasting Corporation of Indianapolis, Emmis AM Radio Corporation of
Indianapolis, Emmis FM Radio Corporation of Indianapolis, Emmis 1310 AM Radio
Corporation of Indianapolis and Emmis 105.7 FM Radio Corporation of
Indianapolis, each a wholly-owned Subsidiary of the Borrower, with and into
Emmis Publishing Corporation, a wholly-owned Subsidiary of the Borrower.
13.22. Environmental Reports.
The Administrative Agent shall have received reliance letters in favor of
the Lenders with respect to the (a) Phase I Environmental Site Assessment of
KGMT-TV, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇, prepared on behalf of
Lane and ▇▇▇▇▇▇▇▇, by ▇▇▇▇▇▇▇ Group Services, dated March 23, 2000, with respect
to the Real Estate owned by KGMB-TV located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, and (b) Environmental Report and Site Review for the Hawaiki
Tower-Phase II Property: Lot 3; Waimalu Commercial Center-Phase IV Property: Lot
2; Phase III Property: Lot 1; the Road Widening Lot: ▇▇▇ ▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇,
▇▇▇▇▇▇, prepared on behalf of Starwood Financial Trust by Professional Services
Industries, Inc., dated April 30, 1999, with respect to the Real Estate owned by
KHON-TV located at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, Hawaii, each in form and
substance reasonably satisfactory to the Initial Agents.
14. CONDITIONS TO ALL BORROWINGS.
The obligations of the Lenders to make any Loan, and of the Administrative
Agent to issue, extend or renew any Letter of Credit, in each case whether on or
after the Funding Date, shall also be subject to the satisfaction of the
following conditions precedent:
14.1. Representations True; No Event of Default. Each of the
representations and warranties of any of the Borrower and its Subsidiaries
contained in this Credit Agreement, the other Loan Documents or in any document
or instrument delivered pursuant to or in connection with this Credit Agreement
shall be true in all material respects as of the date as of which they were made
and shall also be true in all material respects at and as of the time of the
making of such Loan or the issuance, extension or renewal of such Letter of
Credit, with the same effect as if made at and as of that time (except to the
extent of changes resulting from transactions contemplated or permitted by this
Credit Agreement and the other Loan Documents and changes occurring in the
ordinary course of business that singly or in the aggregate are not materially
adverse, and to the extent that such representations and warranties relate
expressly to an earlier date) and no Default or Event of Default shall have
occurred and be continuing or, in the case of any Letter of Credit to be issued
with a face amount in excess of $25,000,000, would have occurred as of the last
day of the last Reference Period if such Letter of Credit has been included in
Total Funded Debt on such date.
14.2. No Legal Impediment. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Lender would make it illegal for such Lender to make such Loan or to
participate in the issuance, extension or renewal of such Letter of Credit or in
the reasonable opinion of the Administrative Agent would make it illegal for the
Administrative Agent to issue, extend or renew such Letter of Credit.
14.3. Proceedings and Documents. All proceedings in connection with the
transactions contemplated by this Credit Agreement, the other Loan Documents and
all other documents incident thereto shall be satisfactory in substance and in
form to the Lenders and to the Administrative Agent and the Administrative
Agent's Special Counsel, and the Lenders, the Administrative Agent and such
counsel shall have received all information and such counterpart originals or
certified or other copies of such documents as the Administrative Agent may
reasonably request.
15. EVENTS OF DEFAULT; ACCELERATION; ETC.
15.1. Events of Default and Acceleration. If any of the following events
("Events of Default" or, if the giving of notice or the lapse of time or both is
required, then, prior to such notice or lapse of time, "Defaults") shall occur:
(a) the Borrower shall fail to pay any principal of the Loans or any
Reimbursement Obligation when the same shall become due and payable,
whether at the stated date of maturity or any accelerated date of maturity
or at any other date fixed for payment;
(b) the Borrower or any of its Subsidiaries shall fail to pay any
interest on the Loans, any Fees, or other sums due hereunder or under any
of the other Loan Documents, within three (3) Business Days of when the
same shall become due and payable, whether at the stated date of maturity
or any accelerated date of maturity or at any other date fixed for
payment;
(c) Except as otherwise provided herein, the Borrower shall fail to
comply with any of its covenants contained in ss.ss.10.2, 10.4, 10.5,
10.6(iii) through (vi), 10.9, 10.12, 10.15, 11 or 12 after the expiration
of any applicable period;
(d) the Borrower or any of its Subsidiaries shall fail to perform any
term, covenant or agreement contained herein or in any of the other Loan
Documents (other than those specified elsewhere in this ss.15.1) for
thirty (30) days after written notice of such failure has been given to
the Borrower by the Administrative Agent;
(e) any representation or warranty of the Borrower or any of its
Subsidiaries in this Credit Agreement or any of the other Loan Documents
or in any Subordinated Note Document or in any other document or
instrument delivered pursuant to or in connection with this Credit
Agreement shall prove to have been false in any material respect upon the
date when made or deemed to have been made or repeated;
(f) the Borrower or any of its Subsidiaries shall fail to pay at
maturity, or within any applicable period of grace, any obligation for
borrowed money or credit received or in respect of any Capitalized Leases
in each case in an amount greater than $5,000,000, or fail to observe or
perform any material term, covenant or agreement contained in any
agreement by which it is bound, evidencing or securing borrowed money or
credit received or in respect of any Capitalized Leases in each case in an
amount greater than $5,000,000 for such period of time as would permit
(assuming the giving of appropriate notice if required) the holder or
holders thereof or of any obligations issued thereunder to accelerate the
maturity thereof, or any such holder or holders shall rescind or shall
have a right to rescind the purchase of any such obligations;
(g) the Borrower or any of its Subsidiaries shall make an assignment
for the benefit of creditors, or admit in writing its inability to pay or
generally fail to pay its debts as they mature or become due, or shall
petition or apply for the appointment of a trustee or other custodian,
liquidator or receiver of the Borrower or any of its Subsidiaries or of
any substantial part of the assets of the Borrower or any of its
Subsidiaries or shall commence any case or other proceeding relating to
the Borrower or any of its Subsidiaries under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution
or liquidation or similar law of any jurisdiction, now or hereafter in
effect, or shall take any action to authorize or in furtherance of any of
the foregoing, or if any such petition or application shall be filed or
any such case or other proceeding shall be commenced against the Borrower
or any of its Subsidiaries and the Borrower or any of its Subsidiaries
shall indicate its approval thereof, consent thereto or acquiescence
therein or such petition or application shall not have been dismissed
within sixty (60) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating the Borrower or any of
its Subsidiaries bankrupt or insolvent, or approving a petition in any
such case or other proceeding, or a decree or order for relief is entered
in respect of the Borrower or any Subsidiary of the Borrower in an
involuntary case under federal bankruptcy laws as now or hereafter
constituted;
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty (30) days, whether or not consecutive, any
final judgment against the Borrower or any of its Subsidiaries that, with
other outstanding final judgments, undischarged, against the Borrower or
any of its Subsidiaries exceeds in the aggregate $5,000,000;
(j) the holders of all or any part of the Subordinated Debt shall
accelerate the maturity of all or any part of the Subordinated Debt, the
Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in
part or an offer to prepay, redeem or repurchase the Subordinated Debt in
whole or in part shall have been made or any default shall occur with
respect thereto or the subordination provisions of such Subordinated Debt
are found by any court, or asserted by the trustee in respect of, or any
holder of, Subordinated Debt in a judicial proceeding to be, invalid or
unenforceable;
(k) any of the Loan Documents shall be cancelled, terminated, revoked
or rescinded or the Administrative Agent's security interests, mortgages
or liens in a material portion of the Collateral shall cease to be
perfected, or shall cease to have the priority contemplated by the
Security Documents otherwise than in accordance with the terms thereof
with respect to the release of any Collateral or in each case with the
express prior written agreement, consent or approval of the Lenders, or
any action or suit at law or in equity or other legal proceeding to
cancel, revoke or rescind any of the Loan Documents shall be commenced by
or on behalf of the Borrower or any of its Subsidiaries party thereto or
any of their respective stockholders, or any court or any other
governmental or regulatory authority or agency of competent jurisdiction
shall make a determination that, or issue a judgment, order, decree or
ruling to the effect that, any one or more of the Loan Documents is
illegal, invalid or unenforceable in accordance with the terms thereof;
(l) the Borrower or any ERISA Affiliate incurs any liability to the
PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an
aggregate amount exceeding $5,000,000, or the Borrower or any ERISA
Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA
by a Multiemployer Plan requiring aggregate annual payments exceeding
$5,000,000, or any of the following occurs with respect to a Guaranteed
Pension Plan: (i) an ERISA Reportable Event, or a failure to make a
required installment or other payment (within the meaning of ss.302(f)(1)
of ERISA), provided that the Administrative Agent determines in its
reasonable discretion that such event (A) could be expected to result in
liability of the Borrower or any of its Subsidiaries to the PBGC or such
Guaranteed Pension Plan in an aggregate amount exceeding $5,000,000 and
(B) is reasonably likely to constitute grounds for the termination of such
Guaranteed Pension Plan by the PBGC, for the appointment by the
appropriate United States District Court of a trustee to administer such
Guaranteed Pension Plan or for the imposition of a lien in favor of such
Guaranteed Pension Plan; or (ii) the appointment by a United States
District Court of a trustee to administer such Guaranteed Pension Plan; or
(iii) the institution by the PBGC of proceedings to terminate such
Guaranteed Pension Plan;
(m) the Borrower or any of its Subsidiaries shall be enjoined,
restrained or in any way prevented by the order of any Governmental
Authority from conducting any material part of its business and such order
shall continue in effect for more than thirty (30) days;
(n) there shall occur any material damage to, or loss, theft or
destruction of, any Collateral, whether or not insured, or any strike,
lockout, labor dispute, embargo, condemnation, act of God or public enemy,
or other casualty, which in any such case causes, for more than fifteen
(15) consecutive days, the cessation or substantial curtailment of revenue
producing activities at any facility of the Borrower or any of its
Subsidiaries if such event or circumstance is not covered by business
interruption insurance and would have a Material Adverse Effect;
(o) there shall occur the loss, suspension or revocation of, or
failure to renew, any license or permit now held or hereafter acquired by
the Borrower or any of its Subsidiaries if such loss, suspension,
revocation or failure to renew would have a Material Adverse Effect;
(p) a Change of Control shall occur;
(q) any default or event of default shall occur under any documents
entered into in connection with the Hearst-Argyle Transaction, the Denver
Transaction or any Permitted Acquisition, which such default or event of
default could reasonably be expected to have a Material Adverse Effect;
(r) at any time, any of the Borrower's Subsidiaries shall provide a
guaranty of the Borrower's obligations under the Subordinated Notes if
such Subsidiary is not at such time guarantying the Obligations pursuant
to the Guaranty or if such guaranty of the Borrowers obligations under the
Subordinated Note is not subordinated to such Subsidiary's Obligations
under the Guaranty;
(s) the commencement of proceedings to suspend, revoke, terminate or
substantially and adversely modify any material FCC License or other
material license of the Borrower, any of its Subsidiaries or of any
Stations thereof if such proceeding shall continue uncontested for
forty-five (45) days or the Lenders shall reasonably believe that the
result thereof shall be the termination, revocation, or suspension of such
material FCC License or other material license; or the designation of an
application for renewal of any such material FCC License or other material
license for an evidentiary hearing if the Lenders shall reasonably believe
that the result thereof shall be the termination, revocation or suspension
of such material FCC License or other material license;
(t) any proceeding shall be brought by any Person challenging the
validity or enforceability of any Necessary Authorization of the Borrower
or any of its Subsidiaries except which such proceeding could not
reasonably be expected to result in the loss of such Necessary
Authorization or to have a Material Adverse Effect;
(u) appropriate proceedings for the renewal of any material Necessary
Authorization shall not be commenced prior to the expiration thereof or if
such Necessary Authorization is not renewed or otherwise made available
for the use of the Borrower or any of its Subsidiaries;
(v) any contractual obligation which is necessary to the broadcasting
operations of the Borrower and its Subsidiaries shall be revoked or
terminated and not replaced by a substitute, without a Material Adverse
Effect, within ninety (90) days after such revocation or termination; or
(w) any order of the FCC relating to any Permitted Acquisition
granting or consenting to a transfer of an FCC License in connection with
any Permitted Acquisition which has been completed shall not have become
final and any Governmental Authority shall have entered an order reversing
such order (whether or not such order shall be subject to further appeal);
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the request of the Required Lenders shall, by
notice in writing to the Borrower declare all amounts owing with respect to this
Credit Agreement, the Notes and the other Loan Documents and all Reimbursement
Obligations to be, and they shall thereupon forthwith become, immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Borrower; provided that in the
event of any Event of Default specified in ss.15.1(g), ss.15.1(h) or ss.15.1(j),
all such amounts shall become immediately due and payable automatically and
without any requirement of notice from the Administrative Agent or any Lender.
In addition, the Administrative Agent may direct the Borrower by notice in
writing to pay (and the Borrower hereby agrees upon notice to pay) to the
Administrative Agent such additional amounts of cash, to be held as security for
all Reimbursement Obligations, equal to the Maximum Drawing Amount of Letters of
Credit then outstanding.
15.2. Termination of Commitments. If any one or more of the Events of
Default specified in ss.15.1(g), ss.15.1(h) or ss.15.1(j) shall occur, any
unused portion of the credit hereunder shall forthwith terminate and each of the
Lenders shall be relieved of all further obligations to make Loans to the
Borrower and the Administrative Agent shall be relieved of all further
obligations to issue, extend or renew Letters of Credit. If any other Event of
Default shall have occurred and be continuing the Administrative Agent may and,
upon the request of the Required Lenders, shall, by notice to the Borrower,
terminate the unused portion of the credit hereunder, and upon such notice being
given such unused portion of the credit hereunder shall terminate immediately
and each of the Lenders shall be relieved of all further obligations to make
Loans and the Administrative Agent shall be relieved of all further obligations
to issue, extend or renew Letters of Credit. No termination of the credit
hereunder shall relieve the Borrower or any of its Subsidiaries of any of the
Obligations.
15.3. Remedies. In case any one or more of the Events of Default shall
have occurred and be continuing, and whether or not the Lenders shall have
accelerated the maturity of the Loans pursuant to ss.15.1, each Lender, if owed
any amount with respect to the Loans or the Reimbursement Obligations, may, with
the consent of the Required Lenders but not otherwise, proceed to protect and
enforce its rights by suit in equity, action at law or other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained in this Credit Agreement and the other Loan Documents or any
instrument pursuant to which the Obligations to such Lender are evidenced,
including as permitted by applicable law the obtaining of the ex parte
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of such Lender. No remedy herein conferred upon any
Lender or the Administrative Agent or the holder of any Note or purchaser of any
Letter of Credit Participation is intended to be exclusive of any other remedy
and each and every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute or any other provision of law.
15.4. Distribution of Collateral Proceeds. In the event that, following
the occurrence or during the continuance of any Default or Event of Default, the
Administrative Agent or any Lender, as the case may be, receives any monies in
connection with the enforcement of any of the Security Documents, or otherwise
with respect to the realization upon any of the Collateral, such monies shall be
distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Administrative Agent for or in respect of all
reasonable costs, expenses, disbursements and losses which shall have been
incurred or sustained by the Administrative Agent in connection with the
collection of such monies by the Administrative Agent, for the exercise,
protection or enforcement by the Administrative Agent of all or any of the
rights, remedies, powers and privileges of the Administrative Agent under
this Credit Agreement or any of the other Loan Documents or in respect of
the Collateral or in support of any provision of adequate indemnity to the
Administrative Agent against any taxes or liens which by law shall have,
or may have, priority over the rights of the Administrative Agent to such
monies;
(b) Second, to all other Obligations in such order or preference as
the Required Lenders may determine; provided, however, that (i)
distributions shall be made (A) pari passu among Obligations with respect
to the Administrative Agent's Fee and all other Obligations and (B) with
respect to each type of Obligation owing to the Lenders, such as interest,
principal, fees and expenses, among the Lenders pro rata across all
Tranches and (ii) the Administrative Agent may in its discretion make
proper allowance to take into account any Obligations not then due and
payable;
(c) Third, upon payment and satisfaction in full or other provisions
for payment in full satisfactory to the Lenders and the Administrative
Agent of all of the Obligations, to the payment of any obligations
required to be paid pursuant to ss.9-504(1)(c) of the UCC of the State of
New York; and
(d) Fourth, the excess, if any, shall be returned to the Borrower or
to such other Persons as are entitled thereto.
16. ADDITIONAL FINANCING.
16.1.Commitment Amount.
At any time, and from time to time, the Borrower may solicit the Lenders
and any other lending institution to provide the Borrower with additional
commitments to make Loans under this Credit Agreement in an aggregate amount not
to exceed $500,000,000 subject to the limitations set forth below. Neither the
Administrative Agent nor any Lender shall have any obligation to provide the
Borrower with all or any part of such additional commitment; provided that by
execution of this Credit Agreement, the Administrative Agent and the Lenders
shall be deemed to have consented, without the need for further or subsequent
consent, (a) to such additional commitments which any other Lender or lending
institution may agree to provide for the Loans which may be advanced in respect
thereof and any resulting changes in any Commitment Percentage of any Tranche,
and (b) any amendments which may be made to the Loan Documents in order to
evidence and document such commitments and Loans to the extent that any such
amendment (i) does not amend any of the provisions specified in ss.19.12(a) as
requiring the consent of each Lender affected thereby, (ii) does not modify the
relative priority of the Loans (including any such new Loans) and commitments
(including any such new commitments) with respect to the payment, guarantees,
collateral or other collateral support, and (iii) is consistent with all other
requirements of this ss.16. The Borrower may elect to allocate all or any
portion of such additional commitment among the existing Tranches or may
allocate all or a portion of such additional commitment to one or more new
Tranches; provided that the Total Revolving Credit Commitment may not be
increased by more than $200,000,000 as a result of such allocations and any
additional Revolving Credit Loans and Revolving Credit Commitments shall mature
or terminate, as the case may be, on or after the Revolving Credit Loan Maturity
Date; and any amounts not allocated to increase the Total Revolving Credit
Commitment shall be advanced in the form of term loans under a bank term tranche
or fund term tranche; and provided, further, that any additional term loans
shall either (A) with respect to any additional term loans structured as a bank
term tranche, amortize on the same or slower schedule as the Tranche A Term Loan
as in effect at such time until the Tranche A Maturity Date and shall have a
final maturity date on or after the Tranche A Maturity Date, and (B) with
respect to any additional term loans structured as a fund term tranche, amortize
either on the same schedule as the Tranche B Term Loan or have a weighted
average term to maturity which is longer than the Tranche B Term Loan.
Notwithstanding anything to the contrary set forth herein, no additional
commitments shall be permitted hereunder and no additional loans may be advanced
in respect thereof unless (1) no Default or Event of Default shall have occurred
and be then continuing or would result after giving effect to such additional
commitments and the loans to be advanced in respect thereof, assuming that such
loans were fully advanced on the effective date of such additional commitments,
(2) the Borrower shall have delivered to the Administrative Agent a Compliance
Certificate demonstrating compliance with the terms of the Credit Agreement
after giving pro forma effect to the loans to be advanced in respect of the
additional commitment, such compliance to be calculated based on the Borrower's
Consolidated Operating Cash Flow for the four (4) consecutive fiscal quarters
ending immediately prior to the effective date of such additional commitments
and assumes that such additional loans were advanced as of the end of such four
(4) quarter period, (3) with respect to each lending institution not yet a party
hereto providing additional commitments, such lending institution shall have
become a party to this Credit Agreement (and become subject to all the rights
and obligations of a Lender hereunder) by executing the delivering to the
Administrative Agent an original, executed Instrument of Accession in the form
of Exhibit H hereto (an "Instrument of Accession"), (4) the Borrower shall have
delivered to the Administrative Agent and the Lenders notice that such
solicitation has been made and, prior to the effectiveness of such additional
commitment, copies of all documents and instruments related thereto and (5) the
Borrower shall have delivered to the Administrative Agent copies of updated
financial projections through the final maturity date of any additional
commitments provided hereunder. Neither the Administrative Agent nor any Lender
shall have any obligation to provide the Borrower with any such additional
commitments.
16.2.Notes.
Subsequent to the receipt by the Administrative Agent of an original
executed Instrument of Accession by a lending institution not yet a party to
this Credit Agreement as set forth above and simultaneously with the
effectiveness of such lending institution's commitment to make Loans pursuant to
this ss.16 to the Borrower, the Borrower shall execute and deliver to such
lending institution a Note as applicable for the corresponding Tranche, dated as
of the date of such effectiveness, in a principal amount equal to such lending
institution's Commitment Percentage of the applicable Tranche or, if less, the
outstanding amount of all loans made by such Person in respect of such Tranche,
plus interest accrued thereon at the rate set forth herein for the applicable
Notes. The Borrower shall, within five (5) days of the effectiveness of any such
additional commitments from any Lender which is already a party hereto, deliver
to such Lender, in the case of any new Tranche a new Note for such Tranche, and
in the case of an increase to an existing Tranche, an amended Note as applicable
for the corresponding Tranche in the form of the appropriate Note then held by
such Lender (the "Current Note") in an amount equal to such Lender's Commitment
Percentage of the Tranche as increased pursuant to this ss.16. Within five (5)
days of the receipt of the amended Note, such Lender shall deliver to the
Borrower the Current Note marked "substituted."
17. THE AGENTS.
17.1. Authorization.
(a) The Administrative Agent is authorized to take such action on
behalf of each of the Lenders and to exercise all such powers as are
hereunder and under any of the other Loan Documents and any related
documents delegated to the Administrative Agent, together with such powers
as are reasonably incident thereto, including the authority, without the
necessity of any notice to or further consent of the Lenders, from time to
time to take any action with respect to any Collateral or the Security
Documents which may be necessary to perfect, maintain perfected or insure
the priority of the security interest in and liens upon the Collateral
granted pursuant to the Security Documents, provided that no duties or
responsibilities not expressly assumed herein or therein shall be implied
to have been assumed by the Administrative Agent.
(b) The relationship between the Administrative Agent and each of the
Lenders is that of an independent contractor. The use of the term
"Administrative Agent" is for convenience only and is used to describe, as
a form of convention, the independent contractual relationship between the
Administrative Agent and each of the Lenders. Nothing contained in this
Credit Agreement nor the other Loan Documents shall be construed to create
an agency, trust or other fiduciary relationship between the
Administrative Agent and any of the Lenders.
(c) As an independent contractor empowered by the Lenders to exercise
certain rights and perform certain duties and responsibilities hereunder
and under the other Loan Documents, the Administrative Agent is
nevertheless a "representative" of the Lenders, as that term is defined in
Article 1 of the UCC, for purposes of actions for the benefit of the
Lenders and the Administrative Agent with respect to all collateral
security and guaranties contemplated by the Loan Documents. Such actions
include the designation of the Administrative Agent as "secured party",
"mortgagee" or the like on all financing statements and other documents
and instruments, whether recorded or otherwise, relating to the
attachment, perfection, priority or enforcement of any security interests,
mortgages or deeds of trust in collateral security intended to secure the
payment or performance of any of the Obligations, all for the benefit of
the Lenders and the Administrative Agent.
17.2. Employees and Agents. Any Agent may exercise its powers and execute
its duties by or through employees or agents and shall be entitled to take, and
to rely on, advice of counsel concerning all matters pertaining to its rights
and duties under this Credit Agreement and the other Loan Documents. Any Agent
may utilize the services of such Persons as such Agent in its sole discretion
may reasonably determine, and all reasonable fees and expenses of any such
Persons shall be paid by the Borrower.
17.3. No Liability. None of the Agents, its shareholders, directors,
officers or employees nor any other Person assisting such Person in its duties
nor any agent or employee thereof, shall be liable for any waiver, consent or
approval given or any action taken, or omitted to be taken, in good faith by it
or them hereunder or under any of the other Loan Documents, or in connection
herewith or therewith, or be responsible for the consequences of any oversight
or error of judgment whatsoever, except that each of the Agents or such other
Person, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
17.4. No Representations.
17.4.1. General. None of the Agents shall be responsible for the
execution or validity or enforceability of this Credit Agreement, the
Notes, the Letters of Credit, any of the other Loan Documents or any
instrument at any time constituting, or intended to constitute, collateral
security for the Notes, or for the value of any such collateral security
or for the validity, enforceability or collectability of any such amounts
owing with respect to the Notes, or for any recitals or statements,
warranties or representations made herein or in any of the other Loan
Documents or in any certificate or instrument hereafter furnished to it by
or on behalf of the Borrower or any of its Subsidiaries, or be bound to
ascertain or inquire as to the performance or observance of any of the
terms, conditions, covenants or agreements herein or in any instrument at
any time constituting, or intended to constitute, collateral security for
the Notes or to inspect any of the properties, books or records of the
Borrower or any of its Subsidiaries. The Administrative Agent shall not be
bound to ascertain whether any notice, consent, waiver or request
delivered to it by the Borrower or any holder of any of the Notes shall
have been duly authorized or is true, accurate and complete. None of the
Agents has made nor does it now make any representations or warranties,
express or implied, nor does it assume any liability to the Lenders, with
respect to the creditworthiness or financial conditions of the Borrower or
any of its Subsidiaries. Each Lender acknowledges that it has,
independently and without reliance upon any of the Agents or any other
Lender, and based upon such information and documents as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Credit Agreement.
17.4.2. Closing Documentation, etc. For purposes of determining
compliance with the conditions set forth in ss.13, each Lender that has
executed this Credit Agreement shall be deemed to have consented to,
approved or accepted, or to be satisfied with, each document and matters
either sent, or made available, by the Administrative Agent or the Initial
Agents to such Lender for consent, approval, acceptance or satisfaction,
or required thereunder to be consented to or approved by or acceptable or
satisfactory to such Lender, unless an officer of the Administrative Agent
or the Initial Agents active upon the Borrower's account shall have
received notice from such Lender not less than 2 days prior to the date
hereof specifying such Lender's objection thereto and such objection shall
not have been withdrawn by notice to the Administrative Agent or the
Initial Agents to such effect on or prior to the date hereof.
17.5. Payments.
17.5.1. Payments to Administrative Agent. A payment by the Borrower
to the Administrative Agent hereunder or any of the other Loan Documents
for the account of any Lender shall constitute a payment to such Lender.
The Administrative Agent agrees promptly to distribute to each Lender such
Lender's pro rata share of payments received by the Administrative Agent
for the account of the Lenders except as otherwise expressly provided
herein or in any of the other Loan Documents.
17.5.2. Distribution by Administrative Agent. If in the opinion of
the Administrative Agent the distribution of any amount received by it in
such capacity hereunder, under the Notes or under any of the other Loan
Documents might involve it in liability, it may refrain from making
distribution until its right to make distribution shall have been
adjudicated by a court of competent jurisdiction. If a court of competent
jurisdiction shall adjudge that any amount received and distributed by the
Administrative Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the Administrative
Agent its proportionate share of the amount so adjudged to be repaid or
shall pay over the same in such manner and to such Persons as shall be
determined by such court.
17.5.3. Delinquent Lenders. Notwithstanding anything to the contrary
contained in this Credit Agreement or any of the other Loan Documents, any
Lender that fails (a) to make available to the Administrative Agent its
pro rata share of any Loan or to purchase any Letter of Credit
Participation or (b) to comply with the provisions of ss.17.1 with respect
to making dispositions and arrangements with the other Lenders, where such
Lender's share of any payment received, whether by setoff or otherwise, is
in excess of its pro rata share of such payments due and payable to all of
the Lenders, in each case as, when and to the full extent required by the
provisions of this Credit Agreement, shall be deemed delinquent (a
"Delinquent Lender") and shall be deemed a Delinquent Lender until such
time as such delinquency is satisfied. A Delinquent Lender shall be deemed
to have assigned any and all payments due to it from the Borrower, whether
on account of outstanding Loans, Unpaid Reimbursement Obligations,
interest, fees or otherwise, to the remaining nondelinquent Lenders for
application to, and reduction of, their respective pro rata shares of all
outstanding Loans and Unpaid Reimbursement Obligations. The Delinquent
Lender hereby authorizes the Administrative Agent to distribute such
payments to the nondelinquent Lenders in proportion to their respective
pro rata shares of all outstanding Loans and Unpaid Reimbursement
Obligations. A Delinquent Lender shall be deemed to have satisfied in full
a delinquency when and if, as a result of application of the assigned
payments to all outstanding Loans and Unpaid Reimbursement Obligations of
the nondelinquent Lenders, the Lenders' respective pro rata shares of all
outstanding Loans and Unpaid Reimbursement Obligations have returned to
those in effect immediately prior to such delinquency and without giving
effect to the nonpayment causing such delinquency.
17.6. Holders of Notes. The Administrative Agent may deem and treat the
payee of any Note or the purchaser of any Letter of Credit Participation as the
absolute owner or purchaser thereof for all purposes hereof until it shall have
been furnished in writing with a different name by such payee or by a subsequent
holder, assignee or transferee.
17.7. Indemnity. The Lenders ratably (computed by reference to each
Lender's Total Percentage) agree hereby to indemnify and hold harmless each of
the Agents and its respective affiliates from and against any and all claims,
actions and suits (whether groundless or otherwise), losses, damages, costs,
expenses (including any expenses for which the Administrative Agent or such
affiliate has not been reimbursed by the Borrower as required by ss.17.2), and
liabilities of every nature and character arising out of or related to this
Credit Agreement, the Notes, or any of the other Loan Documents or the
transactions contemplated or evidenced hereby or thereby, or the Administrative
Agent's actions taken hereunder or thereunder, except to the extent that any of
the same shall be directly caused by the Administrative Agent's willful
misconduct or gross negligence.
17.8. Agents as Lenders. In its individual capacity, each of the Agents
shall have the same obligations and the same rights, powers and privileges in
respect to its Commitment and the Loans made by it, and as the holder of any of
the Notes and as the purchaser of any Letter of Credit Participations, as it
would have were it not also such Agent.
17.9. Resignation. The Administrative Agent may resign at any time by
giving sixty (60) days prior written notice thereof to the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor Administrative Agent. Unless a Default or Event of
Default shall have occurred and be continuing, such successor Administrative
Agent shall be reasonably acceptable to the Borrower. If no successor
Administrative Agent shall have been so appointed by the Required Lenders and
shall have accepted such appointment within thirty (30) days after the retiring
Administrative Agent's giving of notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a financial institution having a rating of
not less than A or its equivalent by S&P. Upon the acceptance of any appointment
as Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. After any retiring Administrative Agent's
resignation, the provisions of this Credit Agreement and the other Loan
Documents shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Administrative Agent.
17.10. Notification of Defaults and Events of Default. Each Lender hereby
agrees that, upon learning of the existence of a Default or an Event of Default,
it shall promptly notify the Administrative Agent thereof. The Administrative
Agent hereby agrees that upon receipt of any notice under this ss.17.10 it shall
promptly notify the other Lenders of the existence of such Default or Event of
Default.
17.11. Duties in the Case of Enforcement. In case one of more Events of
Default have occurred and shall be continuing, and whether or not acceleration
of the Obligations shall have occurred, the Administrative Agent shall, if (a)
so requested by the Required Lenders and (b) the Lenders have provided to the
Administrative Agent such additional indemnities and assurances against expenses
and liabilities as the Administrative Agent may reasonably request, proceed to
enforce the provisions of the Security Documents authorizing the sale or other
disposition of all or any part of the Collateral and exercise all or any such
other legal and equitable and other rights or remedies as it may have in respect
of such Collateral. The Required Lenders may direct the Administrative Agent in
writing as to the method and the extent of any such sale or other disposition,
the Lenders ratably (computed by reference to each Lender's Total Percentage)
hereby agreeing to indemnify and hold the Administrative Agent, harmless from
all liabilities incurred in respect of all actions taken or omitted in
accordance with such directions, provided that the Administrative Agent need not
comply with any such direction to the extent that the Administrative Agent
reasonably believes the Administrative Agent's compliance with such direction to
be unlawful or commercially unreasonable in any applicable jurisdiction.
17.12. Syndication Agent, Documentation Agent and Co-Documentation Agent.
The Syndication Agent, Documentation Agent and the Co-Documentation Agent and
any other agent which may be appointed hereunder shall be entitled to the same
protections provided to the Administrative Agent hereunder and shall not have
any right, power, obligation, liability, responsibility or duty under this
Credit Agreement or any of the other Loan Documents other than those applicable
to all Lenders and as otherwise specifically provided for the Syndication Agent,
Documentation Agent, the Co-Documentation Agent or such other agent,
respectively, elsewhere in this Credit Agreement. Any assignment by a Lender
acting as Documentation Agent or Syndication Agent of one hundred percent (100%)
of its Commitment will result in the automatic resignation of such Documentation
Agent or Syndication Agent, as the case may be.
18. ASSIGNMENT AND PARTICIPATION.
18.1. Conditions to Assignment by Lenders. Except as provided herein, each
Lender may assign to one or more commercial banks, other financial institutions
or other Persons, all or a portion of its interests, rights and obligations
under this Credit Agreement (including all or a portion of its Revolving Credit
Commitment, Tranche A Commitment or Tranche B Commitment, as the case may be,
and the same portion of the Loans at the time owing to it, the Notes held by it
and its participating interest in the risk relating to any Letters of Credit);
provided that (a) each of the Administrative Agent and, unless a Default or
Event of Default shall have occurred and be continuing, the Borrower shall have
given its prior written consent to such assignment, which consent will not be
unreasonably withheld or delayed except that the consent of the Borrower or the
Administrative Agent shall not be required in connection with any assignment by
a Lender to (i) an existing Lender or (ii) a Lender Affiliate, (b) each such
assignment shall be of a constant, and not a varying, percentage of all the
assigning Lender's rights and obligations in respect of its Commitments and
Loans under a particular Tranche and any associated rights and obligations under
this Credit Agreement, (c) each assignment (or, in the case of assignments by a
Lender to a Lender Affiliate, the aggregate holdings of such Lender and such
Lender Affiliate after giving effect to such assignments), shall be in an amount
that is a whole multiple of (i) with respect to an assignment of a Lender's
portion of such Lender's Revolving Credit Commitment or Tranche A Commitment or
Tranche A Term Loans, as the case may be, $5,000,000 (or, if less, such Lender's
entire Revolving Credit Commitment or entire Tranche A Commitment or entire
portion of the Tranche A Term Loans, as the case may be), and (ii) with respect
to an assignment of a Tranche B Lender's portion of such Tranche B Lender's
Tranche B Commitment or Tranche B Term Loans, as the case may be, $1,000,000
(or, if less, such Tranche B Lender's entire Tranche B Commitment or entire
portion of the Tranche B Term Loans), and (d) the parties to such assignment
shall execute and deliver to the Administrative Agent, for recording in the
Register (as hereinafter defined), an Assignment and Acceptance, substantially
in the form of Exhibit I hereto (an "Assignment and Acceptance"), together with
any Notes subject to such assignment. Upon such execution, delivery, acceptance
and recording, from and after the effective date specified in each Assignment
and Acceptance, which effective date shall be at least five (5) Business Days
after the execution thereof, (y) the assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder provided, that no assignee shall be
entitled to receive any greater amount pursuant to ss.7.3.2 than that to which
the assignor would have been entitled to receive had no such assignment
occurred, and (z) the assigning Lender shall, to the extent provided in such
assignment and upon payment to the Administrative Agent of the registration fee
referred to in ss.18.3, be released from its obligations under this Credit
Agreement.
18.2. Certain Representations and Warranties; Limitations; Covenants. By
executing and delivering an Assignment and Acceptance, the parties to the
assignment thereunder confirm to and agree with each other and the other parties
hereto as follows:
(a) other than the representation and warranty that it is the legal
and beneficial owner of the interest being assigned thereby free and clear
of any adverse claim, the assigning Lender makes no representation or
warranty, express or implied, and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection
with this Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or the attachment, perfection or priority of any
security interest or mortgage;
(b) the assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower and its Subsidiaries or any other Person primarily or secondarily
liable in respect of any of the Obligations, or the performance or
observance by the Borrower and its Subsidiaries or any other Person
primarily or secondarily liable in respect of any of the Obligations of
any of their obligations under this Credit Agreement or any of the other
Loan Documents or any other instrument or document furnished pursuant
hereto or thereto;
(c) such assignee confirms that it has received a copy of this Credit
Agreement, together with copies of the most recent financial statements
referred to in ss.9.4 and ss.10.4 and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision
to enter into such Assignment and Acceptance;
(d) such assignee will, independently and without reliance upon the
assigning Lender, the Administrative Agent or any other Lender and based
on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under this Credit Agreement;
(e) such assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under
this Credit Agreement and the other Loan Documents as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such
powers as are reasonably incidental thereto;
(f) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Credit
Agreement are required to be performed by it as a Lender;
(g) such assignee represents and warrants that it is
legally authorized to enter into such Assignment and Acceptance;
(h) with respect to assignments of Revolving Credit Loans, such
assignee acknowledges that it has made arrangements with the assigning
Revolving Credit Lender satisfactory to such assignee with respect to its
pro rata share of Letter of Credit Fees in respect of outstanding Letters
of Credit; and
(i) such assignee acknowledges that it has complied with the
provisions of ss.7.3.3 to the extent applicable.
18.3. Register. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register or similar list (the
"Register") for the recordation of the names and addresses of the Lenders and
the Commitment Percentage of, and principal amount of the Revolving Credit Loans
owing to and Letter of Credit Participations purchased by, the Lenders from time
to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Credit Agreement. No Assignment and Acceptance shall be
effective unless and until recorded in the Register. The Register shall be
available for inspection by the Borrower and the Lenders at any reasonable time
and from time to time upon reasonable prior notice. Upon each such recordation,
the assigning Lender agrees to pay to the Administrative Agent a registration
fee in the sum of $3,500.
18.4. New Notes. Upon its receipt of an Assignment and Acceptance executed
by the parties to such assignment, together with each Note subject to such
assignment, the Administrative Agent shall (a) record the information contained
therein in the Register, and (b) give prompt notice thereof to the Borrower and
the Lenders (other than the assigning Lender). Within five (5) Business Days
after receipt of such notice, the Borrower, at its own expense, shall execute
and deliver to the Administrative Agent, in exchange for each surrendered Note,
a new Note to the order of such assignee in an amount equal to the amount
assumed by such assignee pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained some portion of its obligations hereunder, a new
Note to the order of the assigning Lender in an amount equal to the amount
retained by it hereunder. Such new Notes shall provide that they are
replacements for the surrendered Notes, shall be in an aggregate principal
amount equal to the aggregate principal amount of the surrendered Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of the assigned Notes. Within five (5)
days of issuance of any new Notes pursuant to this ss.18.4, the Borrower shall
deliver an opinion of counsel, addressed to the Lenders and the Administrative
Agent, relating to the due authorization, execution and delivery of such new
Notes and the legality, validity and binding effect thereof, in form and
substance satisfactory to the Lenders. The surrendered Notes shall be cancelled
and returned to the Borrower.
18.5. Participations. Without the consent of the Borrower or the
Administrative Agent, each Lender may sell participations to one or more Lenders
or other entities in all or a portion of such Lender's rights and obligations
under this Credit Agreement and the other Loan Documents; provided that (a) each
such participation shall be in an amount of not less than (i) with respect to
Revolving Credit Loans or the Tranche A Term Loan, $5,000,000, and (ii) with
respect to the Tranche B Term Loan, $1,000,000, (b) any such sale or
participation shall not affect the rights and duties of the selling Lender
hereunder to the Borrower and (c) the only rights granted to the participant
pursuant to such participation arrangements with respect to waivers, amendments
or modifications of the Loan Documents shall be the rights to approve waivers,
amendments or modifications that would reduce the principal of or the interest
rate on any Loans, extend the term or increase the amount of the Revolving
Credit Commitment, Tranche A Commitment or Tranche B Commitment (as the case may
be) of such Lender as it relates to such participant, reduce the amount of any
Commitment Fee or Letter of Credit Fees to which such participant is entitled or
extend any regularly scheduled payment date for principal or interest or release
any material commitment.
18.6. Assignee or Participant Affiliated with the Borrower. If any
assignee Lender is an Affiliate of the Borrower or any of its Subsidiaries, then
any such assignee Lender shall have no right to vote as a Lender hereunder or
under any of the other Loan Documents for purposes of granting consents or
waivers or for purposes of agreeing to amendments or other modifications to any
of the Loan Documents or for purposes of making requests to the Administrative
Agent pursuant to ss.15.1 or ss.15.2, and the determination of the Required
Lenders shall for all purposes of this Credit Agreement and the other Loan
Documents be made without regard to such assignee Lender's interest in any of
the Loans or Reimbursement Obligations. If any Lender sells a participating
interest in any of the Loans or Reimbursement Obligations to a participant, and
such participant is the Borrower or an Affiliate of the Borrower, then such
transferor Lender shall promptly notify the Administrative Agent of the sale of
such participation. A transferor Lender shall have no right to vote as a Lender
hereunder or under any of the other Loan Documents for purposes of granting
consents or waivers or for purposes of agreeing to amendments or modifications
to any of the Loan Documents or for purposes of making requests to the
Administrative Agent pursuant to ss.15.1 or ss.15.2 to the extent that such
participation is beneficially owned by the Borrower or any Affiliate of the
Borrower, and the determination of the Required Lenders shall for all purposes
of this Credit Agreement and the other Loan Documents be made without regard to
the interest of such transferor Lender in the Loans or Reimbursement Obligations
to the extent of such participation.
18.7. Miscellaneous Assignment Provisions. Any assigning Lender shall
retain its rights to be indemnified pursuant to ss.19.3 with respect to any
claims or actions arising prior to the date of such assignment. Anything
contained in this ss.18 to the contrary notwithstanding, any Lender may at any
time pledge or assign a security interest in all or any portion of its interest
and rights under this Credit Agreement (including all or any portion of its
Notes) to secure obligations of such Lender, including any pledge or assignment
to secure obligations to (a) any of the twelve Federal Reserve Banks organized
under ss.4 of the Federal Reserve Act, 12 U.S.C. ss.341 and (b) with respect to
any Lender that is a fund that invests in bank loans, to any lender or any
trustee for, or any other representative of, holders of obligations owed or
securities issued by such fund as security for such obligations or securities or
any institutional custodian for such fund or for such lender. Any foreclosure or
similar action by any Person in respect of such pledge or assignment shall be
subject to the other provisions of this ss.18. No such pledge or the enforcement
thereof shall release the pledgor Lender from its obligations hereunder or under
any of the other Loan Documents, provide any voting rights hereunder to the
pledgee thereof, or affect any rights or obligations of the Borrower or
Administrative Agent hereunder.
18.8. Assignment by Borrower. The Borrower shall not assign or transfer
any of its rights or obligations under any of the Loan Documents without the
prior written consent of each of the Lenders.
19. PROVISIONS OF GENERAL APPLICATIONS.
19.1. Setoff. The Borrower hereby grants to the Administrative Agent and
each of the Lenders a continuing lien, security interest and right of setoff as
security for all liabilities and obligations to the Administrative Agent and
each Lender, whether now existing or hereafter arising, upon and against all
deposits, credits, collateral and property, now or hereafter in the possession,
custody, safekeeping or control of the Administrative Agent or such Lender or
any Lender Affiliate and their successors and assigns or in transit to any of
them. Regardless of the adequacy of any collateral, if any of the Obligations
are due and payable and have not been paid, any deposits or other sums credited
by or due from any of the Lenders to the Borrower and any securities or other
property of the Borrower in the possession of such Lender may be applied to or
set off by such Lender against the payment of Obligations and any and all other
liabilities, direct, or indirect, absolute or contingent, due or to become due,
now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL
RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO
ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS
RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE
BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the
Lenders agree with each other Lender that (a) if an amount to be set off is to
be applied to Indebtedness of the Borrower to such Lender, other than
Indebtedness evidenced by the Notes held by such Lender or constituting
Reimbursement Obligations owed to such Lender, such amount shall be applied
ratably to such other Indebtedness and to the Indebtedness evidenced by all such
Notes held by such Lender or constituting Reimbursement Obligations owed to such
Lender, and (b) if such Lender shall receive from the Borrower, whether by
voluntary payment, exercise of the right of setoff, counterclaim, cross action,
enforcement of the claim evidenced by the Notes held by, or constituting
Reimbursement Obligations owed to, such Lender by proceedings against the
Borrower at law or in equity or by proof thereof in bankruptcy, reorganization,
liquidation, receivership or similar proceedings, or otherwise, and shall retain
and apply to the payment of the Note or Notes held by, or Reimbursement
Obligations owed to, such Lender any amount in excess of its ratable portion of
the payments received by all of the Lenders with respect to the Notes held by,
and Reimbursement Obligations owed to, all of the Lenders, such Lender will make
such disposition and arrangements with the other Lenders with respect to such
excess, either by way of distribution, pro tanto assignment of claims,
subrogation or otherwise as shall result in each Lender receiving in respect of
the Notes held by it or Reimbursement Obligations owed it, its proportionate
payment as contemplated by this Credit Agreement; provided that if all or any
part of such excess payment is thereafter recovered from such Lender, such
disposition and arrangements shall be rescinded and the amount restored to the
extent of such recovery, but without interest.
19.2. Expenses. The Borrower agrees to pay (a) the reasonable costs of the
Administrative Agent in producing and reproducing this Credit Agreement, the
other Loan Documents and the other agreements and instruments mentioned herein,
(b) any taxes (including any interest and penalties in respect thereto), other
than Excluded Taxes (as defined in ss.7.3.2), payable by the Administrative
Agent or any of the Lenders (other than taxes based upon the Administrative
Agent's or any Lender's net income) on or with respect to the transactions
contemplated by this Credit Agreement (the Borrower hereby agreeing to indemnify
the Administrative Agent and each Lender with respect thereto), (c) the
reasonable fees, expenses and disbursements of the Administrative Agent's
Special Counsel or any local counsel to the Initial Agents incurred in
connection with the preparation, syndication, administration or interpretation
of the Loan Documents and other instruments mentioned herein, each closing
hereunder, any amendments, modifications, approvals, consents or waivers hereto
or hereunder, or the cancellation of any Loan Document upon payment in full in
cash of all of the Obligations or pursuant to any terms of such Loan Document
for providing for such cancellation, (d) the fees, expenses and disbursements of
the Initial Agents or any of its affiliates incurred by the Initial Agents or
such affiliate in connection with the preparation, syndication, administration
or interpretation of the Loan Documents and other instruments mentioned herein,
including all title insurance premiums and surveyor, engineering, appraisal and
examination charges, (e) all reasonable out-of-pocket expenses (including
without limitation reasonable attorneys' fees and costs, which attorneys may be
employees of any Lender or the Administrative Agent, and reasonable consulting,
accounting, appraisal, investment bankruptcy and similar professional fees and
charges) incurred by any Lender or the Administrative Agent in connection with
(i) the enforcement of or preservation of rights under any of the Loan Documents
against the Borrower or any of its Subsidiaries or the administration thereof
after the occurrence of a Default or Event of Default and (ii) any litigation,
proceeding or dispute whether arising hereunder or otherwise, in any way related
to any Lender's or the Administrative Agent's relationship with the Borrower or
any of its Subsidiaries and (f) all reasonable fees, expenses and disbursements
of the Administrative Agent incurred in connection with UCC searches, UCC
filings, intellectual property searches, intellectual property filings or
mortgage recordings. The covenants contained in this ss.19.2 shall survive
payment or satisfaction in full of all other obligations.
19.3. Indemnification. The Borrower agrees to indemnify and hold harmless
the Administrative Agent, its affiliates and the Lenders from and against any
and all claims, actions and suits whether groundless or otherwise, and from and
against any and all liabilities, losses, damages and expenses of every nature
and character arising out of this Credit Agreement or any of the other Loan
Documents or the transactions contemplated hereby including, without limitation,
(a) any actual or proposed use by the Borrower or any of its Subsidiaries of the
proceeds of any of the Loans or Letters of Credit, (b) the reversal or
withdrawal of any provisional credits granted by the Administrative Agent upon
the transfer of funds from lock box, bank agency, concentration accounts or
otherwise under any cash management arrangements with the Borrower or any
Subsidiary or in connection with the provisional honoring of funds transfers,
checks or other items, (c) any actual or alleged infringement of any patent,
copyright, trademark, service ▇▇▇▇ or similar right of the Borrower or any of
its Subsidiaries comprised in the Collateral, (d) the Borrower or any of its
Subsidiaries entering into or performing this Credit Agreement or any of the
other Loan Documents or (e) with respect to the Borrower and its Subsidiaries
and their respective properties and assets, the violation of any Environmental
Law, the presence, disposal, escape, seepage, leakage, spillage, discharge,
emission, release or threatened release of any Hazardous Substances or any
action, suit, proceeding or investigation brought or threatened with respect to
any Hazardous Substances (including, but not limited to, claims with respect to
wrongful death, personal injury or damage to property), in each case including,
without limitation, the reasonable fees and disbursements of counsel and
allocated costs of internal counsel incurred in connection with any such
investigation, litigation or other proceeding, except to the extent any of the
foregoing result solely from the gross negligence or willful misconduct of any
Lender or Agent. In litigation, or the preparation therefor, the Lenders and the
Administrative Agent and its affiliates shall be entitled to select their own
counsel and, in addition to the foregoing indemnity, the Borrower agrees to pay
promptly the reasonable fees and expenses of such counsel. If, and to the extent
that the obligations of the Borrower under this ss.19.3 are unenforceable for
any reason, the Borrower hereby agrees to make the maximum contribution to the
payment in satisfaction of such obligations which is permissible under
applicable law. The covenants contained in this ss.19.3 shall survive payment or
satisfaction in full of all other Obligations.
19.4. Treatment of Certain Confidential Information.
19.4.1. Confidentiality. Each of the Lenders and the Administrative
Agent agrees, on behalf of itself and each of its affiliates, directors,
officers, employees and any Person which manages such Lender, to use
reasonable precautions to keep confidential, in accordance with their
customary procedures for handling confidential information of the same
nature and in accordance with safe and sound financial industry practices,
any non-public information supplied to it by the Borrower or any of its
Subsidiaries pursuant to this Credit Agreement, provided that nothing
herein shall limit the disclosure of any such information (a) after such
information shall have become public other than through a violation of
this ss.19, or becomes available to any of the Lenders or the
Administrative Agent on a nonconfidential basis from a source other than
the Borrower, (b) to the extent required by statute, law, rule, regulation
or judicial process, (c) to counsel or financial advisers for any of the
Lenders or the Administrative Agent, (d) to bank examiners or any other
regulatory authority having jurisdiction over any Lender or the
Administrative Agent, or to auditors or accountants, (e) to the
Administrative Agent, any Lender or any Financial Affiliate, (f) in
connection with any litigation to which any one or more of the Lenders,
the Administrative Agent or any Financial Affiliate is a party, or in
connection with the enforcement of rights or remedies hereunder or under
any other Loan Document, (g) to a Lender Affiliate or a Subsidiary or
affiliate of the Administrative Agent, (h) to any actual or prospective
assignee or participant or any actual or prospective direct or indirect
counterparty (or its advisors) to any swap or derivative transactions
relating to credit or other risks or events arising under this Credit
Agreement or any other Loan Document so long as such assignee, participant
or direct or indirect counterparty (or its advisors), as the case may be,
agrees to be bound by the provisions of ss.19.4 or (i) with the consent of
the Borrower. Moreover, each of the Administrative Agent, the Lenders and
any Financial Affiliate is hereby expressly permitted by the Borrower to
refer to any of the Borrower and its Subsidiaries in connection with any
advertising, promotion or marketing undertaken by the Administrative
Agent, such Lender or such Financial Affiliate and, for such purpose, the
Administrative Agent, such Lender or such Financial Affiliate may utilize
any trade name, trademark, logo or other distinctive symbol associated
with the Borrower or any of its Subsidiaries or any of their businesses.
19.4.2. Prior Notification. Unless specifically prohibited by
applicable law or court order, each of the Lenders and the Administrative
Agent shall, prior to disclosure thereof, notify the Borrower of any
request for disclosure of any such non-public information by any
governmental agency or representative thereof (other than any such request
in connection with an examination of the financial condition of such
Lender by such governmental agency) or pursuant to legal process.
19.4.3. Other. In no event shall any Lender or the Administrative
Agent be obligated or required to return any materials furnished to it or
any Financial Affiliate by the Borrower or any of its Subsidiaries. The
obligations of each Lender under this ss.19 shall supersede and replace
the obligations of such Lender under any confidentiality letter in respect
of this financing signed and delivered by such Lender to the Borrower
prior to the date hereof and shall be binding upon any assignee of, or
purchaser of any participation in, any interest in any of the Loans or
Reimbursement Obligations from any Lender.
19.5. Survival of Covenants, Etc. All covenants, agreements,
representations and warranties made herein, in the Notes, in any of the other
Loan Documents or in any documents or other papers delivered by or on behalf of
the Borrower or any of its Subsidiaries pursuant hereto shall be deemed to have
been relied upon by the Lenders and the Administrative Agent, notwithstanding
any investigation heretofore or hereafter made by any of them, and shall survive
the making by the Lenders of any of the Loans and the issuance, extension or
renewal of any Letters of Credit, as herein contemplated, and shall continue in
full force and effect so long as any Letter of Credit or any amount due under
this Credit Agreement or the Notes or any of the other Loan Documents remains
outstanding or any Lender has any obligation to make any Loans or the
Administrative Agent has any obligation to issue, extend or renew any Letter of
Credit, and for such further time as may be otherwise expressly specified in
this Credit Agreement. All statements contained in any certificate or other
paper delivered to any Lender or the Administrative Agent at any time by or on
behalf of the Borrower or any of its Subsidiaries pursuant hereto or in
connection with the transactions contemplated hereby shall constitute
representations and warranties by the Borrower or such Subsidiary hereunder.
19.6. Notices. Except as otherwise expressly provided in this Credit
Agreement, all notices and other communications made or required to be given
pursuant to this Credit Agreement or the Notes or any Letter of Credit
Applications shall be in writing and shall be delivered in hand, mailed by
United States registered or certified first class mail, postage prepaid, sent by
overnight courier, or sent by telegraph, telecopy, facsimile or telex and
confirmed by delivery via courier or postal service, addressed as follows:
(a) if to the Borrower or any of its Subsidiaries, at One Emmis
Plaza, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman, with a copy to J. ▇▇▇▇▇ ▇▇▇▇▇▇▇,
Esq., Emmis Communications Corporation, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., ▇▇▇▇, Weiss, Rifkind,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
or at such other address for notice as the Borrower shall last have
furnished in writing to the Person giving the notice; and
(b) if to any Lender or the Administrative Agent, at such Lender's or
Administrative Agent's address set forth on Schedule 1 hereto, with a copy
to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other address for notice as such party shall
have last furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof. Any notice or other
communication to be made hereunder or under the Notes or any Letter of Credit
Applications, even if otherwise required to be in writing under other provisions
of this Credit Agreement, the Notes or any Letter of Credit Applications, may
alternatively be made in an electronic record transmitted electronically under
such authentication and other procedures as the parties hereto may from time to
time agree in writing (but not an electronic record), and such electronic
transmission shall be effective at the time set forth in such procedures. Unless
otherwise expressly provided in such procedures, such an electronic record shall
be equivalent to a writing under the other provisions of this Credit Agreement,
the Notes or any Letter of Credit Applications, and such authentication, if made
in compliance with the procedures so agreed by the parties hereto in writing
(but not an electronic record), shall be equivalent to a signature under the
other provisions of this Credit Agreement, the Notes or any Letter of Credit
Applications.
19.7. Governing Law. THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS
UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID STATE OF NEW YORK (EXCLUDING
THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWER AGREES THAT ANY
SUIT FOR THE ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL
COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH
COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY
MAIL AT THE ADDRESS SPECIFIED IN ss.19.6. THE BORROWER HEREBY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY
SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
19.8. Headings. The captions in this Credit Agreement are for convenience
of reference only and shall not define or limit the provisions hereof.
19.9. Counterparts. This Credit Agreement and any amendment hereof may be
executed in several counterparts and by each party on a separate counterpart,
each of which when executed and delivered shall be an original, and all of which
together shall constitute one instrument. In proving this Credit Agreement it
shall not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought. Delivery by facsimile by
any of the parties hereto of an executed counterpart hereof or of any amendment
or waiver hereto shall be as effective as an original executed counterpart
hereof or of such amendment or waiver and shall be considered a representation
that an original executed counterpart hereof or such amendment or waiver, as the
case may be, will be delivered.
19.10. Entire Agreement, Etc. The Loan Documents and any other documents
executed in connection herewith or therewith express the entire understanding of
the parties with respect to the transactions contemplated hereby. Neither this
Credit Agreement nor any term hereof may be changed, waived, discharged or
terminated, except as provided in ss.19.12.
19.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES ITS RIGHT TO
A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS CREDIT AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN
DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE
OF SUCH RIGHTS AND OBLIGATIONS OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING ANY
COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF THE
ADMINISTRATIVE AGENT OR ANY LENDER RELATING TO THE ADMINISTRATION OF THE LOANS
OR ENFORCEMENT OF THE LOAN DOCUMENTS AND AGREES THAT IT WILL NOT SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT
BE OR HAS NOT BEEN WAIVED. Except as prohibited by law, the Borrower hereby
waives any right it may have to claim or recover in any litigation referred to
in the preceding sentence any special, exemplary, punitive or consequential
damages or any damages other than, or in addition to, actual damages. The
Borrower (a) certifies that no representative, agent or attorney of any Lender
or the Administrative Agent has represented, expressly or otherwise, that such
Lender or the Administrative Agent would not, in the event of litigation, seek
to enforce the foregoing waivers and (b) acknowledges that the Administrative
Agent and the Lenders have been induced to enter into this Credit Agreement, the
other Loan Documents to which it is a party by, among other things, the waivers
and certifications contained herein.
19.12. Consents, Amendments, Waivers, Etc. Any consent or approval
required or permitted by this Credit Agreement to be given by the Lenders may be
given, and any term of this Credit Agreement, the other Loan Documents or any
other instrument related hereto or mentioned herein may be amended, and the
performance or observance by the Borrower or any of its Subsidiaries of any
terms of this Credit Agreement, the other Loan Documents or such other
instrument or the continuance of any Default or Event of Default may be waived
(either generally or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the Borrower and the
written consent of the Required Lenders. Notwithstanding the foregoing, no
amendment, modification or waiver shall:
(a) without the written consent of the Borrower and each
Lender:
(i) reduce or forgive the principal amount of any Loans or
Reimbursement Obligations, or reduce the rate of interest on the
Notes or the amount of the Commitment Fee or Letter of Credit Fees,
amend the definition of Total Leverage Ratio or any of the components
thereof or the method of calculation thereof solely for purposes of
calculating Applicable Margin;
(ii) (A) increase the aggregate amount of such Lender's
Revolving Credit Commitment, Tranche A Commitment or Tranche B
Commitment, as the case may be, other than in accordance with ss.16;
(B) extend the expiration date of such Lender's Revolving Credit
Commitment, Tranche A Commitment or Tranche B Commitment; or (C)
change the requirement that any scheduled payments of principal of
the Loans or voluntary or mandatory prepayments of the Loans or
reductions in the Revolving Credit Commitments be applied pro rata to
all Loans outstanding within the applicable Tranche or outstanding
Revolving Credit Commitments, as applicable;
(iii) postpone or extend the Revolving Credit Loan Maturity
Date, the Tranche A Maturity Date or the Tranche B Maturity Date or
any other regularly scheduled dates for payments of principal of, or
interest on, the Loans or Reimbursement Obligations or any Fees or
other amounts payable to such Lender (it being understood that (A)
any vote to rescind any acceleration made pursuant to ss.15.1 of
amounts owing with respect to the Loans and other Obligations and (B)
any modifications of the provisions relating to amounts, timing or
application of prepayments of Loans and other Obligations shall
require only the approval of the Required Lenders); and
(iv) other than pursuant to a transaction permitted by the terms
of this Credit Agreement, release any material portion of the
Collateral, release any material guarantor from its guaranty
obligations under the Guaranty (excluding, if the Borrower or any
Subsidiary becomes a debtor under the federal Bankruptcy Code, the
release of "cash collateral", as defined in Section 363(a) of the
federal Bankruptcy Code pursuant to a cash collateral stipulation
with the debtor approved by the Required Lenders), or change the
seniority of any Loans or the priority of any Loans with respect to
any Collateral or guarantor;
(b) without the written consent of all of the Lenders, amend or waive
this ss.19.12, the definition of Required Lenders or the distribution of
collateral proceeds after an Event of Default pursuant to ss.15.4; or
(c) (i) without the written consent of each the Initial Agents, amend
or waive ss.17, and (ii) without the written consent of the Administrative
Agent, amend or waive the amount or time of payment of the Administrative
Agent's Fee or any Letter of Credit Fees payable for the Administrative
Agent's account or any other provision applicable to the Administrative
Agent.
Notwithstanding the foregoing, the parties hereto acknowledge and agree
that the Administrative Agent may, without the consent of any Lender, release
(x) liens on Excluded Assets or (y) its liens on the Collateral and/or any
Subsidiary from its obligations under the Guaranty solely to the extent that
such Collateral and/or Subsidiary is sold or otherwise disposed of in accordance
with the terms of this Credit Agreement, including without limitation,
ss.11.5.2. Any termination or other modification of any Interest Rate Agreement
with a Lender as a counterparty shall not require the consent of any other
Lender hereunder.
No waiver shall extend to or affect any obligation not expressly waived or
impair any right consequent thereon. No course of dealing or delay or omission
on the part of the Administrative Agent or any Lender in exercising any right
shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice
to or demand upon the Borrower shall entitle the Borrower to other or further
notice or demand in similar or other circumstances.
19.13. Severability. The provisions of this Credit Agreement are severable
and if any one clause or provision hereof shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Credit
Agreement in any jurisdiction.
20. TRANSITIONAL ARRANGEMENTS.
20.1. Existing Credit Agreement Superseded. Upon the effectiveness of this
Credit Agreement, this Credit Agreement shall supersede the Existing Credit
Agreement in its entirety, except as otherwise provided in this ss.20. As of the
Funding Date, the rights and obligations of the parties under the Existing
Credit Agreement and the "Notes" (as defined in the Existing Credit Agreement)
shall be subsumed within and be governed by this Credit Agreement and the Notes;
provided, however, that each of the "Loans" (as defined in the Existing Credit
Agreement) advanced by the Existing Lenders and outstanding under the Existing
Credit Agreement immediately prior to the effectiveness of this Credit Agreement
shall be refinanced on the Funding Date, subject to the provisions of ss.7.10
hereof, with the proceeds of the Loans advanced hereunder. Interest with respect
to Loans outstanding under the Existing Credit Agreement on the Funding Date
shall be paid on the Funding Date. As of the Funding Date, the CPF Letter of
Credit shall be deemed to be a Letter of Credit issued pursuant and subject to
the conditions of ss.6 hereof and the Borrower hereby affirms its obligations
thereunder.
20.2. Fees Under Existing Credit Agreement. All commitment fees, and other
fees and expenses owing under or in respect of the Existing Credit Agreement
(including, without limitation, fees pursuant to the CPF Letter of Credit) shall
be paid on the Funding Date to the Administrative Agent for the accounts, as
appropriate, of the Administrative Agent and/or the Existing Lenders.
21. FCC APPROVAL.
Notwithstanding anything to the contrary contained in this Credit
Agreement or in the other Loan Documents, neither the Administrative Agent nor
any Lender will take any action pursuant to this Credit Agreement or any of the
other Loan Documents, which would constitute or result in a change in control of
the Borrower or any of its Subsidiaries requiring the prior approval of the FCC
without first obtaining such prior approval of the FCC. After the occurrence of
an Event of Default, the Borrower shall take or cause to be taken any action
which the Administrative Agent may reasonably request in order to obtain from
the FCC such approval as may be necessary to enable the Administrative Agent to
exercise and enjoy the full rights and benefits granted to the Administrative
Agent, for the benefit of the Administrative Agent and the Lenders by this
Credit Agreement or any of the other Loan Documents, including, at the
Borrower's cost and expense, the use of the Borrower's best efforts to assist in
obtaining such approval for any action or transaction contemplated by this
Credit Agreement or any of the other Loan Documents for which such approval is
required by law, including specifically, without limitation, upon request, to
prepare, sign and file with the FCC the assignor's or transferor's portion of
any application or applications for the consent to the assignment or transfer of
control necessary or appropriate under the FCC's rules and approval of any of
the transactions contemplated by this Credit Agreement or any of the other Loan
Documents.
22. CONSENT TO REORGANIZATION.
The Borrower has informed the Administrative Agent and the Lenders of its
intention to reorganize the Borrower's existing assets (the "Reorganization") by
merging Subsidiaries into Subsidiaries and including forming two (2) new
wholly-owned Subsidiaries of the Borrower as follows: (a) a television license
holding company Subsidiary which shall hold the stock of all Subsidiaries which
own television-related or publishing-related licenses and (b) a radio license
holding company Subsidiary which shall hold the stock of all Subsidiaries which
own radio broadcasting related licenses and in connection therewith the Borrower
may or may cause its Subsidiaries to transfer assets to other wholly owned
Subsidiaries. In connection with the Reorganization, the Borrower may form
additional wholly-owned Subsidiaries or merge and or liquidate or dissolve
Subsidiaries (collectively, the "Reorganization Subsidiaries") such that after
giving effect to the Reorganization, the capital structure of the Borrowers and
its Subsidiaries shall be as set forth on Schedule 22 hereto with such changes
to which the Initial Agents consent. Notwithstanding anything herein to the
contrary, the Administrative Agent and the Lenders hereby consent to the
Reorganization; provided that (i) the Borrower, each Reorganization Subsidiary
and any other Subsidiary formed in connection with the Reorganization shall
comply with the terms and conditions set forth in ss.10.15, (ii) no Subsidiary
which was not an Excluded Subsidiary prior to the Reorganization shall be
merged, transferred or amalgamated into an Excluded Subsidiary and the assets of
such Subsidiaries shall not be transferred to an Excluded Subsidiary unless such
Subsidiary could have been designated an Excluded Subsidiary in accordance with
clause (d) of the definition of Excluded subsidiaries and (iii) no Default or
Event of Default shall have occurred and be continuing after giving effect to
such Reorganization.
IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
EMMIS COMMUNICATIONS CORPORATION
By: __________________________
Name:
Title:
TORONTO DOMINION (TEXAS), INC.,
individually and as Administrative
Agent
By: __________________________
Name:
First Union National Bank,
individually and as Syndication Agent
By: __________________________
Name:
Fleet National Bank (f/k/a BankBoston,
N.A.), individually and as
Documentation Agent
By: __________________________
Name:
Credit Suisse First Boston,
individually and as Co-Documentation
Agent
By: __________________________
Name:
Signature blocks for other lenders was omitted.