Exhibit 10.22
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CREDIT AGREEMENT
among
▇▇▇▇▇▇ BROADCASTING COMPANY,
as Borrower,
ITS DOMESTIC SUBSIDIARIES
FROM TIME TO TIME PARTIES HERETO,
as Guarantors,
THE LENDERS PARTIES HERETO,
FIRST UNION NATIONAL BANK,
as Administrative Agent,
BANK OF AMERICA, N.A.
and
THE BANK OF NEW YORK,
as Co-Syndication Agents,
and
NATIONAL CITY BANK,
as Documentation Agent
Dated as of March 21, 2002
FIRST UNION SECURITIES, INC.,
d/b/a WACHOVIA SECURITIES,
and
BANC OF AMERICA SECURITIES LLC,
as Joint Book Runners and Co-Lead Arrangers
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TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS............................................................................................1
Section 1.1 Defined Terms...............................................................................1
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Section 1.2 Other Definitional Provisions..............................................................29
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Section 1.3 Accounting Terms...........................................................................30
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ARTICLE II THE LOANS; AMOUNT AND TERMS..........................................................................30
Section 2.1 Revolving Loans............................................................................30
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Section 2.2 Tranche A Term Loans.......................................................................32
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Section 2.3 Tranche B Term Loans.......................................................................34
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Section 2.4 Incremental Facilities.....................................................................35
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Section 2.5 Letter of Credit Subfacility...............................................................36
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Section 2.6 Fees.......................................................................................40
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Section 2.7 Commitment Reductions......................................................................41
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Section 2.8 Prepayments................................................................................42
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Section 2.9 Minimum Principal Amount of Loans and Tranches; Lending Offices............................44
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Section 2.10 Default Rate and Payment Dates.............................................................45
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Section 2.11 Conversion Options.........................................................................45
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Section 2.12 Computation of Interest and Fees...........................................................46
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Section 2.13 Pro Rata Treatment and Payments............................................................47
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Section 2.14 Non-Receipt of Funds by the Administrative Agent...........................................49
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Section 2.15 Inability to Determine Interest Rate.......................................................50
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Section 2.16 Illegality.................................................................................51
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Section 2.17 Requirements of Law........................................................................51
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Section 2.18 Indemnity..................................................................................53
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Section 2.19 Taxes......................................................................................53
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Section 2.20 Indemnification; Nature of Issuing Lender's Duties.........................................55
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ARTICLE III REPRESENTATIONS AND WARRANTIES......................................................................57
Section 3.1 Financial Condition........................................................................57
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Section 3.2 No Change..................................................................................57
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Section 3.3 Corporate Existence........................................................................57
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Section 3.4 Corporate Power; Authorization; Enforceable Obligations....................................58
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Section 3.5 Compliance with Laws; No Conflict; No Default..............................................58
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Section 3.6 No Material Litigation.....................................................................59
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Section 3.7 Investment Company Act; PUHCA..............................................................59
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Section 3.8 Margin Regulations.........................................................................59
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Section 3.9 ERISA......................................................................................60
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Section 3.10 Environmental Matters......................................................................60
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Section 3.11 Purpose of Loans...........................................................................61
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Section 3.12 Subsidiaries...............................................................................61
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Section 3.13 Ownership..................................................................................62
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Section 3.14 Indebtedness...............................................................................62
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Section 3.15 Taxes......................................................................................62
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Section 3.16 Intellectual Property Rights...............................................................62
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Section 3.17 Solvency...................................................................................63
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Section 3.18 Investments................................................................................63
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Section 3.19 Location of Collateral.....................................................................63
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Section 3.20 No Burdensome Restrictions.................................................................63
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Section 3.21 Labor Matters..............................................................................64
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Section 3.22 Accuracy and Completeness of Information...................................................64
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Section 3.23 Material Contracts.........................................................................64
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Section 3.24 FCC and Station Matters....................................................................64
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ARTICLE IV CONDITIONS PRECEDENT.................................................................................65
Section 4.1 Closing Conditions.........................................................................65
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Section 4.2 Conditions to All Extensions of Credit.....................................................70
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ARTICLE V AFFIRMATIVE COVENANTS.................................................................................71
Section 5.1 Financial Statements.......................................................................71
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Section 5.2 Certificates; Other Information............................................................73
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Section 5.3 Payment of Taxes and Other Obligations.....................................................74
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Section 5.4 Conduct of Business and Maintenance of Existence...........................................74
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Section 5.5 Maintenance of Property; Insurance.........................................................74
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Section 5.6 Inspection of Property; Books and Records; Discussions.....................................75
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Section 5.7 Notices....................................................................................75
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Section 5.8 Environmental Laws.........................................................................77
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Section 5.9 Financial Covenants........................................................................78
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Section 5.10 Additional Guarantors......................................................................78
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Section 5.11 Compliance with Law........................................................................79
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Section 5.12 Pledged Assets.............................................................................79
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Section 5.13 Hedging Agreements.........................................................................79
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Section 5.14 Covenants Regarding Patents, Trademarks and Copyrights.....................................79
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Section 5.15 Leases; Landlord Consent Letters...........................................................81
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Section 5.16 Deposit and Securities Accounts............................................................81
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Section 5.17 ▇▇▇▇▇▇ Plaza Lease.........................................................................81
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Section 5.18 Wholly-Owned Subsidiaries..................................................................82
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Section 5.19 Post-Closing Requirement...................................................................82
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ARTICLE VI NEGATIVE COVENANTS...................................................................................82
Section 6.1 Indebtedness...............................................................................82
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Section 6.2 Liens......................................................................................83
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Section 6.3 Guaranty Obligations.......................................................................83
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Section 6.4 Nature of Business.........................................................................83
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Section 6.5 Consolidation, Merger, Sale or Purchase of Assets, etc.....................................84
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Section 6.6 Advances, Investments and Loans............................................................85
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Section 6.7 Transactions with Affiliates; Allocation of Overhead.......................................85
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Section 6.8 Ownership of Subsidiaries; Restrictions....................................................85
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Section 6.9 Fiscal Year; Organizational Documents; Material Contracts..................................86
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Section 6.10 Limitation on Restricted Actions...........................................................86
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Section 6.11 Restricted Payments........................................................................86
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Section 6.12 Prepayments of Indebtedness, etc...........................................................87
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Section 6.13 Sale Leasebacks............................................................................87
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Section 6.14 No Further Negative Pledges................................................................87
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Section 6.15 FCC Licenses...............................................................................87
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Section 6.16 Activities of the Parent...................................................................87
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ARTICLE VII EVENTS OF DEFAULT...................................................................................88
Section 7.1 Events of Default..........................................................................88
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Section 7.2 Acceleration; Remedies.....................................................................91
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ARTICLE VIII THE ADMINISTRATIVE AGENT...........................................................................92
Section 8.1 Appointment................................................................................92
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Section 8.2 Delegation of Duties.......................................................................92
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Section 8.3 Exculpatory Provisions.....................................................................92
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Section 8.4 Reliance by Administrative Agent...........................................................93
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Section 8.5 Notice of Default..........................................................................93
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Section 8.6 Non-Reliance on Administrative Agent and Other Lenders.....................................94
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Section 8.7 Indemnification............................................................................94
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Section 8.8 The Administrative Agent in Its Individual Capacity........................................95
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Section 8.9 Successor Administrative Agent.............................................................95
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Section 8.10 Other Agents...............................................................................95
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ARTICLE IX MISCELLANEOUS........................................................................................96
Section 9.1 Amendments, Waivers and Release of Collateral..............................................96
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Section 9.2 Notices....................................................................................97
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Section 9.3 No Waiver; Cumulative Remedies.............................................................99
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Section 9.4 Survival of Representations and Warranties.................................................99
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Section 9.5 Payment of Expenses and Taxes..............................................................99
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Section 9.6 Successors and Assigns; Participations; Purchasing Lenders................................100
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Section 9.7 Adjustments; Set-off......................................................................103
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Section 9.8 Table of Contents and Section Headings....................................................104
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Section 9.9 Counterparts..............................................................................104
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Section 9.10 Effectiveness.............................................................................104
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Section 9.11 Severability..............................................................................104
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Section 9.12 Integration...............................................................................105
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Section 9.13 Governing Law.............................................................................105
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Section 9.14 Consent to Jurisdiction and Service of Process............................................105
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Section 9.15 Confidentiality...........................................................................105
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Section 9.16 Acknowledgments...........................................................................106
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Section 9.17 Waivers of Jury Trial.....................................................................106
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ARTICLE X GUARANTY.............................................................................................107
Section 10.1 The Guaranty..............................................................................107
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Section 10.2 Bankruptcy................................................................................107
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Section 10.3 Nature of Liability.......................................................................108
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Section 10.4 Independent Obligation....................................................................108
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Section 10.5 Authorization.............................................................................108
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Section 10.6 Reliance..................................................................................109
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Section 10.7 Waiver....................................................................................109
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Section 10.8 Limitation on Enforcement.................................................................110
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Section 10.9 Confirmation of Payment...................................................................110
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Schedules
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Schedule 1.1-1 Account Designation Letter
Schedule 1.1-2 Investments
Schedule 1.1-3 Permitted Parent Debt
Schedule 1.1-4 Permitted Parent Liens
Schedule 2.1(a) Schedule of Lenders and Commitments
Schedule 2.1(b)(i) Form of Notice of Borrowing
Schedule 2.1(e) Form of Revolving Note
Schedule 2.2(d) Form of Tranche A Term Note
Schedule 2.3(d) Form of Tranche B Term Note
Schedule 2.11 Form of Notice of Conversion/Extension
Schedule 2.19 Section 2.19 Certificate
Schedule 3.3 Jurisdictions of Organization and Qualification
Schedule 3.6 Litigation
Schedule 3.9 ERISA
Schedule 3.12 Subsidiaries
Schedule 3.16 Intellectual Property
Schedule 3.19(a) Location of Real Property
Schedule 3.19(b) Location of Collateral
Schedule 3.19(c) Chief Executive Offices
Schedule 3.21 Labor Matters
Schedule 3.23 Material Contracts
Schedule 3.24 FCC and Station Matters
Schedule 4.1-1 Form of Secretary's Certificate
Schedule 4.1-2 Form of Solvency Certificate
Schedule 5.2(b) Form of Compliance Certificate
Schedule 5.5(b) Insurance
Schedule 5.10 Form of Joinder Agreement
Schedule 6.1(b) Indebtedness
Schedule 9.2 Lenders' Lending Offices
Schedule 9.6(c) Form of Commitment Transfer Supplement
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CREDIT AGREEMENT, dated as of March 21, 2002, among ▇▇▇▇▇▇
BROADCASTING COMPANY, a Washington corporation (the "Borrower"), each of those
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Domestic Subsidiaries of the Borrower identified as a "Guarantor" on the
signature pages hereto and such other Domestic Subsidiaries of the Borrower as
may from time to time become a party hereto (collectively the "Guarantors" and
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individually a "Guarantor"), the several banks and other financial institutions
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from time to time parties to this Credit Agreement (collectively the "Lenders"
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and individually a "Lender"), FIRST UNION NATIONAL BANK, a national banking
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association, as administrative agent for the Lenders hereunder (in such
capacity, the "Administrative Agent" or the "Agent"), BANK OF AMERICA, N.A., a
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national banking association, and THE BANK OF NEW YORK, a national banking
association, as co-syndication agents for the Lenders hereunder (in such
capacity, the "Co-Syndication Agents"), and NATIONAL CITY BANK, a national
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banking association, as documentation agent for the Lenders hereunder (in such
capacity, the "Documentation Agent").
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W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower has requested, and the Lenders have agreed to
extend, certain credit facilities to the Borrower on the terms and conditions
set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such
parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINED TERMS.
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As used in this Credit Agreement, terms defined in the preamble to
this Credit Agreement have the meanings therein indicated, and the following
terms have the following meanings:
"ABR Default Rate" shall have the meaning set forth in Section 2.10.
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"Account Designation Letter" shall mean the Notice of Account
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Designation Letter dated the Closing Date from the Borrower to the
Administrative Agent in substantially the form attached hereto as Schedule
1.1-1.
"Additional Credit Party" shall mean each Person that becomes a
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Guarantor by execution of a Joinder Agreement in accordance with Section 5.10.
"Additional Loan" shall have the meaning set forth in Section 2.4.
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"Administrative Agent" or "Agent" shall have the meaning set forth in
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the first paragraph of this Credit Agreement and any successors in such
capacity.
"Administrative Fees" shall have the meaning set forth in Section
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2.6(d).
"Affiliate" shall mean as to any Person, any other Person (excluding
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any Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, a Person shall be deemed to be "controlled by" a Person if such
Person possesses, directly or indirectly, power either (a) to vote 10% or more
of the securities having ordinary voting power for the election of directors of
such Person or (b) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Affiliation Agreements" shall mean any network affiliation agreements
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in effect at any time for any Station affiliated with a Network, and all
renewals, extensions and replacements of such agreements.
"Agent Fee Letter" shall have the meaning set forth in the definition
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of Fee Letters.
"Agreement or Credit Agreement" shall mean this Credit Agreement, as
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amended, modified or supplemented from time to time in accordance with its
terms.
"Alternate Base Rate" shall mean, for any day, a rate per annum equal
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to the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. For purposes hereof:
"Prime Rate" shall mean, at any time, the rate of interest per annum publicly
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announced or otherwise identified from time to time by First Union at its
principal office in Charlotte, North Carolina as its prime rate. The parties
hereto acknowledge that the rate announced publicly by First Union as its Prime
Rate is an index or base rate and shall not necessarily be its lowest or best
rate charged to its customers or other banks; and "Federal Funds Effective
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Rate" shall mean, for any day, the weighted average of the rates on overnight
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federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published on
the next succeeding Business Day, the average of the quotations for the day of
such transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive in the absence of manifest error) that it is unable to ascertain the
Federal Funds Effective Rate, for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient quotations in
accordance with the terms thereof, the Alternate Base Rate shall be determined
without regard to clause (b) of the first sentence of this definition, as
appropriate, until the circumstances giving rise to such inability no longer
exist. Any change in the Alternate Base Rate due to a change in the Prime Rate
or the Federal Funds Effective Rate shall be effective on the opening of
business on the date of such change.
2
"Alternate Base Rate Loans" shall mean Loans that bear interest at an
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interest rate based on the Alternate Base Rate.
"Applicable Percentage" shall mean, for any day, the rate per annum
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set forth below opposite the applicable Level then in effect, it being
understood that the Applicable Percentage for (i) Revolving Loans and Tranche A
Term Loans which are Alternate Base Rate Loans shall be the percentage set
forth under the column "Alternate Base Rate Margin for Revolving Loans and
Tranche A Term Loans", (ii) Revolving Loans and Tranche A Term Loans which are
LIBOR Rate Loans and the Letter of Credit Fee shall be the percentage set forth
under the column "LIBOR Rate Margin for Revolving Loans, Tranche A Term Loans
and Letter of Credit Fee", (iii) Tranche B Term Loans which are Alternate Base
Loans shall be the percentage set forth under the column "Alternate Base Rate
Margin for Tranche B Term Loans", (iv) Tranche B Term Loans which are LIBOR
Rate Loans shall be the percentage set forth under the column "LIBOR Rate
Margin for Tranche B Term Loans" and (v) the Commitment Fee shall be the
percentage set forth under the column "Commitment Fee":
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Alternate Base Rate LIBOR Rate Margin Alternate Base
Margin for for Revolving Loans, Rate Margin LIBOR Rate
Revolving Loans and Tranche A Term for Margin
Tranche A Term Loans and Letter of Tranche B for Tranche B Commitment
Level Leverage Ratio Loans Credit Fee Term Loans Term Loans Fee
---------- ----------------------- --------------------- ---------------------- ---------------- --------------- -------------
I **** 5.5 to 1.0 2.50% 3.75% 3.00% 4.25% 0.500%
---------- ----------------------- --------------------- ---------------------- ---------------- --------------- -------------
II **** 5.0 to 1.0 but * 2.25% 3.50% 3.00% 4.25% 0.500%
5.5 to 1.0
---------- ----------------------- --------------------- ---------------------- ---------------- --------------- -------------
III **** 4.5 to 1.0 but * 2.00% 3.25% 2.75% 4.00% 0.500%
5.0 to 1.0
---------- ----------------------- --------------------- ---------------------- ---------------- --------------- -------------
IIII **** 4.0 to 1.0 but * 1.75% 3.00% 2.75% 4.00% 0.500%
4.5 to 1.0
---------- ----------------------- --------------------- ---------------------- ---------------- --------------- -------------
V **** 3.5 to 1.0 but * 1.50% 2.75% 2.75% 4.00% 0.500%
4.0 to 1.0
---------- ----------------------- --------------------- ---------------------- ---------------- --------------- -------------
VI **** 3.0 to 1.0 but * 1.25% 2.50% 2.75% 4.00% 0.375%
3.5 to 1.0
---------- ----------------------- --------------------- ---------------------- ---------------- --------------- -------------
VII **** 2.5 to 1.0 but * 1.00% 2.25% 2.75% 4.00% 0.375%
3.0 to 1.0
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VIII * 2.5 to 1.0 0.75% 2.00% 2.75% 4.00% 0.375%
---------- ----------------------- --------------------- ---------------------- ---------------- --------------- -------------
The Applicable Percentage shall, in each case, be determined and
adjusted quarterly on the date five (5) Business Days after the date on which
the Administrative Agent has received from the Borrower the quarterly financial
information and certifications required to be delivered to the Administrative
Agent and the Lenders in accordance with the provisions of Sections 5.1(a) and
(b) and 5.2(b) (each an "Interest Determination Date"). Such Applicable
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Percentage shall be effective from such Interest Determination Date until the
next such Interest Determination Date. The initial Applicable Percentages shall
be based on Level I for the first six months following the Closing Date. If the
Borrower shall fail to provide the financial information and certifications in
accordance with the provisions of Sections 5.1(a) and (b) and 5.2(b), the
Applicable Percentage
* represents less than
**** represents greater than or equal to
3
shall, on the date five (5) Business Days after the date by which the Borrower
was so required to provide such financial information and certifications to the
Administrative Agent and the Lenders, be based on Level I until such time as
such information and certifications are provided, whereupon the Level shall be
determined by the then current Leverage Ratio.
"Approved Fund" shall mean, with respect to any Lender that is a fund
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that invests in bank loans, any other fund that invests in bank loans and is
managed by the same investment advisor as such Lender or by an affiliate of
such investment advisor.
"Arrangers" shall mean First Union Securities, Inc., d/b/a Wachovia
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Securities and Banc of America Securities LLC.
"Asset Disposition" shall mean the disposition of any or all of the
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assets (including, without limitation, the Capital Stock of a Subsidiary or any
ownership interest in a joint venture) of the Borrower or any Subsidiary
whether by sale, lease, transfer or otherwise. The term "Asset Disposition"
shall not include (i) the sale, lease or transfer of assets permitted by
Sections 6.5(a)(i), 6.5(a)(ii) or 6.5(a)(iii) or (ii) any Equity Issuance.
"Bank of America" shall mean Bank of America, N.A., a national banking
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association.
"Bankruptcy Code" shall mean the Bankruptcy Code in Title 11 of the
---------------
United States Code, as amended, modified, succeeded or replaced from time to
time.
"Beneficial Owner" shall have the meaning provided in Rules 13d-3 and
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13d-5 under the Securities Exchange Act of 1934, except that a Person shall be
deemed to be a "Beneficial Owner" of all shares that any such Person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time.
"Borrower" shall have the meaning set forth in the first paragraph of
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this Credit Agreement.
"Borrowing Date" shall mean, in respect of any Loan, the date such
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Loan is made.
"Broadcasting Properties" shall mean the facilities and properties
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owned, leased or operated by the Borrower or any of its Subsidiaries and
utilized in such Person's (or another Subsidiary's) television and/or radio
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broadcasting business, whether now owned or hereafter acquired.
"Business" shall have the meaning set forth in Section 3.10.
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"Business Day" shall mean a day other than a Saturday, Sunday or other
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day on which commercial banks in Charlotte, North Carolina or New York, New
York are authorized or required by law to close; provided, however, that when
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used in connection with a rate determination, borrowing or payment in respect
of a LIBOR Rate Loan, the term "Business Day"
4
shall also exclude any day on which banks in London, England are not open for
dealings in Dollar deposits in the London interbank market.
"Capital Lease" shall mean any lease of property, real or personal,
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the obligations with respect to which are required to be capitalized on a
balance sheet of the lessee in accordance with GAAP.
"Capital Lease Obligations" shall mean the capitalized lease
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obligations relating to a Capital Lease determined in accordance with GAAP.
"Capital Stock" shall mean (i) in the case of a corporation, capital
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stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of capital stock, (iii) in the case of a partnership, partnership
interests (whether general or limited), (iv) in the case of a limited liability
company, membership interests and (v) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.
"Cash Equivalents" shall mean (i) securities issued or directly and
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fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition ("Government Obligations"),
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(ii) U.S. dollar denominated (or foreign currency fully hedged to U.S. dollar)
time deposits, certificates of deposit, Eurodollar time deposits and Eurodollar
certificates of deposit of (y) any domestic commercial bank of recognized
standing having capital and surplus in excess of $250,000,000 or (z) any bank
whose short-term commercial paper rating from S&P is at least A-1 or the
equivalent thereof or from ▇▇▇▇▇'▇ is at least P-1 or the equivalent thereof
(any such bank being an "Approved Bank"), in each case with maturities of not
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more than 364 days from the date of acquisition, (iii) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing within six
months of the date of acquisition, (iv) repurchase agreements with a bank or
trust company (including a Lender) or a recognized securities dealer having
capital and surplus in excess of $500,000,000 for direct obligations issued by
or fully guaranteed by the United States of America, (v) obligations of any
state of the United States or any political subdivision thereof for the payment
of the principal and redemption price of and interest on which there shall have
been irrevocably deposited Government Obligations maturing as to principal and
interest at times and in amounts sufficient to provide such payment, and (vi)
auction preferred stock rated in the highest short-term credit rating category
by S&P or Moody's.
"Change of Control" shall mean the occurrence of any of the following
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events: (a) any "person" or "group" (as such terms are used in Section 13(d) or
14(d) of the Securities Exchange Act of 1934), other than the Current
Stockholders, is or becomes, directly or indirectly, the Beneficial Owner (by
way of merger, consolidation or otherwise) of 33% or more of the Voting Stock
or of the economic interests of the Parent on a fully-diluted basis, after
giving effect to the
5
conversion and exercise of all outstanding warrants, options and other
securities of the Parent (whether or not such securities are then currently
convertible or exercisable), (b) the failure of the Parent to own, directly or
indirectly, 100% of the Voting Stock and of the economic interests of the
Borrower or (c) Continuing Directors shall cease for any reason to constitute a
majority of the members of the board of directors of the Parent then in office.
"Closing Date" shall mean the date of this Credit Agreement.
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"Code" shall mean the Internal Revenue Code of 1986, as amended from
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time to time.
"Collateral" shall mean a collective reference to the collateral which
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is identified in, and at any time will be covered by, the Security Documents.
"Commitment" shall mean the Revolving Commitment, the LOC Commitment,
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the Tranche A Term Loan Commitment and the Tranche B Term Loan Commitment,
individually or collectively, as appropriate.
"Commitment Fee" shall have the meaning set forth in Section 2.6(a).
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"Commitment Percentage" shall mean the Revolving Commitment
---------------------
Percentage, the LOC Commitment Percentage, the Tranche A Term Loan Commitment
Percentage and/or the Tranche B Term Loan Commitment Percentage, as
appropriate.
"Commitment Period" shall mean the period from and including the
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Closing Date to but not including the Revolving Commitment Termination Date.
"Commitment Transfer Supplement" shall mean a Commitment Transfer
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Supplement, in substantially the form of Schedule 9.6(c).
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"Commonly Controlled Entity" shall mean an entity, whether or not
--------------------------
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes the
Borrower and which is treated as a single employer under Section 414 of the
Code.
"Communications Law" shall mean the Communications Act of 1934, as
------------------
amended, and all rules and regulations thereunder (including, without
limitation, the Telecommunications Act of 1996), or any successor statute or
statutes, and all rules and regulations of the FCC, any PUC or any other
applicable Governmental Authority related to the provision of communication or
broadcast services, each as amended or supplemented from time to time.
"Compliance Certificate" shall mean a certificate of a Responsible
----------------------
Officer in the form of Schedule 5.2(b) (a) stating that (i) the financial
statements delivered pursuant to Sections 5.1(a) and 5.1(b) concurrently with
such certificate present fairly the financial position of the Borrower and its
Subsidiaries for the periods indicated in conformity with GAAP applied on a
consistent basis, (ii) each of the Credit Parties during such periods observed
or performed in all material
6
respects all of its covenants and other agreements, and satisfied in all
material respects every condition, contained in this Credit Agreement to be
observed, performed or satisfied by it, and (iii) such Responsible Officer has
obtained no knowledge of any Default or Event of Default except as specified in
such certificate, (b) including calculations in reasonable detail required to
indicate compliance with Section 5.9 as of the last day of such period and (c)
setting forth the amount of Investments permitted by clauses (v) and (viii) of
the definition of Permitted Investments that are outstanding as of the last day
of such period.
"Consolidated" means, when used with reference to financial statements
------------
or financial statement items of the Borrower and its Subsidiaries or any other
Person, such statements or items on a consolidated basis in accordance with the
consolidation principles of GAAP.
"Consolidated Capital Expenditures" shall mean, for any period, all
---------------------------------
expenditures of the Borrower and its Subsidiaries on a Consolidated basis for
such period which in accordance with GAAP would be classified as capital
expenditures, including without limitation, Capital Lease Obligations. The
applicable period shall be for the four consecutive quarters ending as of the
date of computation.
"Consolidated Cash Taxes" shall mean, for any period, the aggregate of
-----------------------
all taxes (including, without limitation, any federal, state, local and foreign
income taxes) actually paid (either directly to the applicable Governmental
Authority or the Parent) by the Borrower and its Subsidiaries on a Consolidated
basis during such period. The applicable period shall be for the four
consecutive quarters ending as of the date of computation.
"Consolidated EBITDA" shall mean, as of any date of determination for
-------------------
the four quarter period ending on such date, (i) Consolidated Net Income for
such period plus (ii) the sum of the following to the extent deducted in
----
calculating Consolidated Net Income: (A) Consolidated Interest Expense for such
period, (B) tax expense (including, without limitation, any federal, state,
local and foreign income, value added and similar taxes) of the Borrower and
its Subsidiaries for such period and (C) depreciation, amortization (including
Programming Amortization Expense) and other non-cash charges for such period
minus (iii) Programming Cash Payments; provided that, for purposes of
----- --------
calculating Consolidated EBITDA, South West Oregon Television Broadcast
Corporation, the owner of the KPIC-TV license, shall be considered a Subsidiary
of the Borrower and 50% of each of the foregoing components of Consolidated
EBITDA (e.g. Consolidated Net Income) with respect to South West Oregon
Television Broadcast Corporation shall be included in such calculation for the
applicable period. The applicable period shall be for the four consecutive
quarters ending as of the date of computation.
"Consolidated Fixed Charges" shall mean, as of any date of
--------------------------
determination for the four quarter period ending on such date, the sum of (i)
Consolidated Interest Expense for such period plus (ii) Consolidated Scheduled
----
Debt Payments for such period plus (iii) Consolidated Capital Expenditures for
----
such period plus (iv) cash dividend payments (other than cash dividend payments
----
made in connection with an asset sale permitted by Section 6.5(a)) and cash
stock repurchases that are made during such period plus (v) Consolidated Cash
----
Taxes for such period, in each case for the Borrower and its Subsidiaries on a
Consolidated basis. The applicable period
7
shall be for the four consecutive quarters ending as of the date of
computation; provided that, with respect to clauses (ii), (iii) and (iv) above,
--------
during the first twelve months following the Closing Date the applicable period
shall begin on the Closing Date and end on the date of computation.
"Consolidated Funded Debt" shall mean, on any date of calculation,
------------------------
Funded Debt of the Borrower and its Subsidiaries on a Consolidated basis.
"Consolidated Interest Expense" shall mean, as of any date of
-----------------------------
determination for the four quarter period ending on such date, all interest
expense, excluding amortization of debt discount and premium but including the
interest component under Capital Leases for such period of the Borrower and its
Subsidiaries on a Consolidated basis. The applicable period shall be for the
four consecutive quarters ending as of the date of computation.
"Consolidated Net Income" shall mean, for any period, the net income
-----------------------
(excluding extraordinary or non-recurring losses and gains and all non-cash
income) of the Borrower and its Subsidiaries on a Consolidated basis for such
period. The applicable period shall be for the four consecutive quarters ending
as of the date of computation.
"Consolidated Scheduled Debt Payments" shall mean, for any period, the
------------------------------------
sum of all scheduled payments of principal on Consolidated Funded Debt for such
period (including the principal component of payments due on Capital Leases
during the applicable period ending on such date); it being understood that
scheduled payments on Consolidated Funded Debt shall not include optional
prepayments or the mandatory prepayments required pursuant to Section
2.8(b)(ii)-(vi). The applicable period shall be for the four consecutive
quarters ending as of the date of computation.
"Continuing Directors" shall mean during any period of 24 consecutive
--------------------
months commencing after the Closing Date, individuals who at the beginning of
such 24 month period were directors of the Parent (together with any new
director whose election by the Parent's board of directors or whose nomination
for election by the Parent's shareholders was approved by a vote of at least
two-thirds of the directors then still in office who either were directors at
the beginning of such period or whose election or nomination for election was
previously so approved).
"Contractual Obligation" shall mean, as to any Person, any provision
----------------------
of any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Copyright Licenses" shall mean any agreement, whether written or
------------------
oral, providing for the grant by or to a Person of any right under any
Copyright, including, without limitation, any thereof referred to in Schedule
--------
3.16 to this Credit Agreement.
----
"Copyrights" shall mean all copyrights (other than copyrights of de
----------
minimus value) of the Borrower and its Subsidiaries in all works, now existing
or hereafter created or acquired, all
8
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Copyright Office or in any similar
office or agency of the United States, any state thereof or any other country
or any political subdivision thereof, or otherwise, including, without
limitation, any thereof referred to in Schedule 3.16 and all renewals thereof.
-------------
"Co-Syndication Agents" shall have the meaning set forth in the first
---------------------
paragraph of this Credit Agreement.
"Credit Documents" shall mean this Credit Agreement, each of the
----------------
Notes, any Joinder Agreement, the Letters of Credit, the LOC Documents and the
Security Documents.
"Credit Party" shall mean any of the Borrower or the Guarantors.
------------
"Credit Party Obligations" shall mean, without duplication, (i) all of
------------------------
the obligations of the Credit Parties to the Lenders (including the Issuing
Lender) and the Administrative Agent, whenever arising, under this Credit
Agreement, the Notes or any of the other Credit Documents (including, but not
limited to, any interest accruing after the occurrence of a filing of a
petition of bankruptcy under the Bankruptcy Code with respect to any Credit
Party, regardless of whether such interest is an allowed claim under the
Bankruptcy Code) and (ii) all liabilities and obligations, whenever arising,
owing from any Credit Party to any Lender, or any Affiliate of a Lender,
arising under any Hedging Agreement permitted by Section 6.1(d).
"Current Stockholders" shall mean all Persons that, as of the date of
--------------------
this Credit Agreement, are Beneficial Owners, directly or indirectly, of the
outstanding Voting Stock of the Parent.
"Debt Issuance" shall mean the issuance of any Indebtedness for
-------------
borrowed money by the Borrower or any of its Subsidiaries. The term "Debt
Issuance" shall not include any Equity Issuance or any Indebtedness of the
Borrower and its Subsidiaries permitted to be incurred pursuant to Section 6.1
hereof.
"Default" shall mean any of the events specified in Section 7.1,
-------
whether or not any requirement for the giving of notice or the lapse of time,
or both, or any other condition, has been satisfied.
"Defaulting Lender" shall mean, at any time, any Lender that, at such
-----------------
time (a) has failed to make a Loan required pursuant to the terms of this
Credit Agreement, including the funding of a Participation Interest in
accordance with the terms hereof and such default remains uncured, (b) has
failed to pay to the Administrative Agent or any Lender an amount owed by such
Lender pursuant to the terms of this Credit Agreement and such default remains
uncured, or (c) has been deemed insolvent or has become subject to a bankruptcy
or insolvency proceeding or to a receiver, trustee or similar official.
"Documentation Agent" shall have the meaning set forth in the first
-------------------
paragraph of this Credit Agreement.
9
"Dollars" and "$" shall mean dollars in lawful currency of the United
------- -
States of America.
"Domestic Lending Office" shall mean, initially, the office of each
-----------------------
Lender designated as such Lender's Domestic Lending Office shown on Schedule
--------
9.2; and thereafter, such other office of such Lender as such Lender may from
---
time to time specify to the Administrative Agent and the Borrower as the office
of such Lender at which Alternate Base Rate Loans of such Lender are to be
made.
"Domestic Subsidiary" shall mean any Subsidiary that is organized and
-------------------
existing under the laws of the United States or any state or commonwealth
thereof or under the laws of the District of Columbia.
"Environmental Laws" shall mean any and all applicable foreign,
------------------
federal, state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority or other
Requirement of Law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health or the
environment, as now or may at any time be in effect during the term of this
Credit Agreement.
"Equity Issuance" shall mean any issuance by the Borrower or any
---------------
Subsidiary to any Person which is not a Credit Party of (a) shares of its
Capital Stock, (b) any shares of its Capital Stock pursuant to the exercise of
options or warrants or (c) any shares of its Capital Stock pursuant to the
conversion of any debt securities to equity. The term "Equity Issuance" shall
not include any Asset Disposition or any Debt Issuance.
"ERISA" shall mean the Employee Retirement Income Security Act of
-----
1974, as amended from time to time.
"Eurodollar Reserve Percentage" shall mean for any day, the percentage
-----------------------------
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve
requirement (including without limitation any basic, supplemental or emergency
reserves) in respect of Eurocurrency liabilities, as defined in Regulation D of
such Board as in effect from time to time, or any similar category of
liabilities for a member bank of the Federal Reserve System in New York City.
"Event of Default" shall mean any of the events specified in Section
----------------
7.1; provided, however, that any requirement for the giving of notice or the
-------- -------
lapse of time, or both, or any other condition, has been satisfied.
"Excess Cash Flow" shall mean, with respect to any fiscal year period
----------------
of the Borrower and its Subsidiaries on a Consolidated basis, an amount equal
to (a) Consolidated EBITDA for such period plus (b) decreases in working
----
capital for such period (with cash and Cash Equivalents to be excluded from
current assets for purposes of determining such working capital)
10
minus (c) Consolidated Capital Expenditures for such period minus (d)
----- -----
Consolidated Interest Expense for such period to the extent paid or payable in
cash minus (e) Consolidated Cash Taxes paid during such period minus (f)
----- -----
Consolidated Scheduled Debt Payments made during such period minus (g)
-----
increases in working capital for such period (with cash and Cash Equivalents to
be excluded from current assets for purposes of determining such working
capital) and minus (h) cash dividend payments (other than cash dividend
-----
payments made in connection with an asset sale permitted by Section 6.5(a))
made by the Borrower during such period to the extent permitted by Section 6.11.
"Extension of Credit" shall mean, as to any Lender, the making of a
-------------------
Loan by such Lender or the issuance of, or participation in, a Letter of Credit
by such Lender.
"Fair Market Rental Rate" shall mean, with respect to that portion of
-----------------------
▇▇▇▇▇▇ Plaza that is leased by one or more Credit Parties, a rental rate less
than or equal to the rental rate that would be obtained for such premises in an
arms'-length transaction between an informed and willing lessee and an informed
and willing lessor, in each case under no compulsion to enter into such lease
transaction.
"FCC" shall mean the Federal Communications Commission and any
---
successor governmental agency performing functions similar to those performed
by the Federal Communications Commission on the date hereof.
"FCC License" shall mean any of the licenses, permits or other
-----------
authorizations issued by the FCC relating to the Stations, including all
extensions, additions and renewals thereto or thereof, and all other licenses,
authorizations, waivers and permits required under Communications Law for the
Borrower and its Subsidiaries to own and operate the Stations and their
property and to carry on their business, including, without limitation, any of
the FCC Licenses set forth on Schedule 3.24.
-------------
"Federal Funds Effective Rate" shall have the meaning set forth in the
----------------------------
definition of "Alternate Base Rate".
"Fee Letters" shall mean (a) that certain letter agreement, dated
-----------
December 10, 2001 addressed to the Borrower from First Union and First Union
Securities, Inc., d/b/a Wachovia Securities (the "Agent Fee Letter") and (b)
----------------
that certain letter agreement, dated December 10, 2001, addressed to the
Borrower from Bank of America and Banc of America Securities LLC, in each case
as amended, modified or otherwise supplemented.
"First Union" shall mean First Union National Bank, a national banking
-----------
association.
"▇▇▇▇▇▇ Plaza" shall mean the building located at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
------------
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"▇▇▇▇▇▇ Plaza Lease" shall mean that certain Master Services
------------------
Agreement, entered into as of February 7, 2002, between ▇▇▇▇▇▇
Broadcasting-Seattle TV, L.L.C. and ▇▇▇▇▇▇ Media Services
11
Company, together with any services addendum entered into in connection with
such Master Services Agreement, any replacement of such Master Services
Agreement or any additional Master Services Agreement (and/or services addendum
to such Master Services Agreement) entered into between a Credit Party and
▇▇▇▇▇▇ Media Services Company, in each case on substantially the same terms as
the Master Services Agreement in effect on the Closing Date.
"Fixed Charge Coverage Ratio" shall mean the ratio of (i) Consolidated
---------------------------
EBITDA to (ii) Consolidated Fixed Charges.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
------------------
Subsidiary.
"Fronting Fee" shall have the meaning set forth in Section 2.6(b).
------------
"Funded Debt" shall mean, with respect to any Person, without
-----------
duplication, (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered
into in the ordinary course of business), (d) all obligations of such Person
incurred, issued or assumed as the deferred purchase price of property or
services purchased by such Person (other than trade debt incurred in the
ordinary course of business and due within six months of the incurrence
thereof) which would appear as liabilities on a balance sheet of such Person,
(e) the principal portion of all obligations of such Person under Capital
Leases, (f) the maximum amount of all letters of credit issued or bankers'
acceptances facilities created for the account of such Person and, without
duplication, all drafts drawn thereunder (to the extent unreimbursed), (g) all
preferred Capital Stock issued by such Person and which by the terms thereof
could be (at the request of the holders thereof or otherwise) subject to
mandatory sinking fund payments, redemption or other acceleration, (h) the
principal balance outstanding under any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet financing
product, (i) obligations of such Person under non-compete agreements, (j) all
obligations of such Person under Hedging Agreements, excluding any portion
thereof which would be accounted for as interest expense under GAAP, (k) all
Indebtedness of others of the type described in clauses (a) through (j) hereof
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed, (l) all Guaranty
Obligations of such Person with respect to Indebtedness of another Person of
the type described in clauses (a) through (j) hereof, and (m) all Indebtedness
of the type described in clauses (a) through (j) hereof of any partnership or
unincorporated joint venture in which such Person is a general partner or a
joint venturer; provided, however, that Funded Debt shall not include
-------- -------
Indebtedness among the Credit Parties to the extent such Indebtedness would be
eliminated on a Consolidated basis.
"GAAP" shall mean generally accepted accounting principles in effect
----
in the United States of America applied on a consistent basis, subject,
-------
however, in the case of determination of compliance with the financial
-------
covenants set out in Section 5.9 to the provisions of Section 1.3.
12
"Government Acts" shall have the meaning set forth in Section 2.20.
---------------
"Governmental Approvals" shall mean all authorizations, consents,
----------------------
approvals, permits, licenses and exemptions of, registrations and filings with,
and reports to, all Governmental Authorities, including, without limitation,
all FCC Licenses and PUC Authorizations.
"Governmental Authority" shall mean any nation or government, any
----------------------
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guaranty Obligations" shall mean, with respect to any Person, without
--------------------
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or
collection) guaranteeing or intended to guarantee any Indebtedness of any other
Person in any manner, whether direct or indirect, and including without
limitation any obligation, whether or not contingent, (i) to purchase any such
Indebtedness or any property constituting security therefor, (ii) to advance or
provide funds or other support for the payment or purchase of any such
Indebtedness or to maintain working capital, solvency or other balance sheet
condition of such other Person (including without limitation keep well
agreements, maintenance agreements, comfort letters or similar agreements or
arrangements) for the benefit of any holder of Indebtedness of such other
Person, (iii) to lease or purchase property, securities or services primarily
for the purpose of assuring the holder of such Indebtedness, or (iv) to
otherwise assure or hold harmless the holder of such Indebtedness against loss
in respect thereof. The amount of any Guaranty Obligation hereunder shall
(subject to any limitations set forth therein) be deemed to be an amount equal
to the outstanding principal amount (or maximum principal amount, if larger) of
the Indebtedness in respect of which such Guaranty Obligation is made.
"Guarantor" shall have the meaning set forth in the first paragraph of
---------
this Credit Agreement.
"Guaranty" shall mean the guaranty of the Guarantors set forth in
--------
Article X.
"Hedging Agreements" shall mean, with respect to any Person, any
------------------
agreement entered into to protect such Person against fluctuations in interest
rates, or currency or raw materials values, including, without limitation, any
interest rate swap, cap or collar agreement or similar arrangement between such
Person and one or more counterparties, any foreign currency exchange agreement,
currency protection agreements, commodity purchase or option agreements or
other interest or exchange rate hedging agreements.
"Immaterial FCC License" shall mean any FCC License that is not
----------------------
material to the operation of the Stations and is designated on Schedule 3.24 as
-------------
an "Immaterial FCC License."
"Immaterial PUC Authorization" shall mean any PUC Authorization that
----------------------------
is not material to the operation of the Stations and is designated on Schedule
--------
3.24 as an "Immaterial PUC Authorization."
----
13
"Incremental Facility" shall have the meaning set forth in Section
--------------------
2.4.
"Indebtedness" shall mean, with respect to any Person, without
------------
duplication, (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered
into in the ordinary course of business), (d) all obligations of such Person
issued or assumed as the deferred purchase price of property or services
purchased by such Person (other than trade debt incurred in the ordinary course
of business and due within six months of the incurrence thereof) which would
appear as liabilities on a balance sheet of such Person, (e) all obligations of
such Person under take-or-pay or similar arrangements or under commodities
agreements, (f) all Indebtedness of others secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on, or payable out of the proceeds of production from,
property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, (g) all Guaranty Obligations of such Person
with respect to Indebtedness of another Person, (h) the principal portion of
all Capital Lease Obligations of such Person, (i) all obligations of such
Person under Hedging Agreements, excluding any portion thereof which would be
accounted for as interest expense under GAAP, (j) the maximum amount of all
letters of credit issued or bankers' acceptances facilities created for the
account of such Person and, without duplication, all drafts drawn thereunder
(to the extent unreimbursed), (k) all preferred Capital Stock issued by such
Person and which by the terms thereof could be (at the request of the holders
thereof or otherwise) subject to mandatory sinking fund payments, redemption or
other acceleration, (l) the principal balance outstanding under any synthetic
lease, tax retention operating lease, off-balance sheet loan or similar
off-balance sheet financing product, (m) the Indebtedness of any partnership or
unincorporated joint venture in which such Person is a general partner or a
joint venturer and (n) obligations of such Person under non-compete agreements.
"Insolvency" shall mean, with respect to any Multiemployer Plan, the
----------
condition that such Plan is insolvent within the meaning of such term as used
in Section 4245 of ERISA.
"Insolvent" shall mean being in a condition of Insolvency.
---------
"Intellectual Property" shall mean the Copyrights, Copyright Licenses,
---------------------
Patents, Patent Licenses, Trademarks and Trademark Licenses of the Borrower and
its Subsidiaries, all goodwill associated therewith and all rights to ▇▇▇ for
infringement thereof.
"Interest Coverage Ratio" shall mean the ratio of (i) Consolidated
-----------------------
EBITDA to (ii) Consolidated Interest Expense paid or payable in cash during the
applicable testing period.
"Interest Payment Date" shall mean (a) as to any Alternate Base Rate
---------------------
Loan, the last Business Day of each March, June, September and December and on
the applicable Maturity Date, (b) as to any LIBOR Rate Loan having an Interest
Period of three months or less, the last
14
day of such Interest Period and on the applicable Maturity Date, and (c) as to
any LIBOR Rate Loan having an Interest Period longer than three months, (i)
each three (3) month anniversary following the first day of such Interest
Period, (ii) the last day of such Interest Period and (iii) on the applicable
Maturity Date.
"Interest Period" shall mean, with respect to any LIBOR Rate Loan,
---------------
(i) initially, the period commencing on the Borrowing
Date or conversion date, as the case may be, with respect to such LIBOR
Rate Loan and ending one, two, three or six months thereafter, as
selected by the Borrower in the notice of borrowing or notice of
conversion given with respect thereto; and
(ii) thereafter, each period commencing on the last day
of the immediately preceding Interest Period applicable to such LIBOR
Rate Loan and ending one, two, three or six months thereafter, as
selected by the Borrower by irrevocable notice to the Administrative
Agent not less than three Business Days prior to the last day of the
then current Interest Period with respect thereto;
provided that the foregoing provisions are subject to the
--------
following:
(A) if any Interest Period pertaining to a LIBOR
Rate Loan would otherwise end on a day that is not a Business
Day, such Interest Period shall be extended to the next
succeeding 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 Business Day;
(B) any Interest Period pertaining to a LIBOR Rate
Loan that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of the relevant calendar
month;
(C) if the Borrower shall fail to give notice as
provided above, the Borrower shall be deemed to have selected
an Alternate Base Rate Loan to replace the affected LIBOR
Rate Loan;
(D) any Interest Period in respect of any Loan
that would otherwise extend beyond the applicable Maturity
Date shall end on the applicable Maturity Date and, further
with regard to (1) the Term Loans, no Interest Period shall
extend beyond any principal amortization payment date unless
the portion of such Term Loans consisting of Alternate Base
Rate Loans together with the portion of such Term Loans
consisting of LIBOR Rate Loans with Interest Periods expiring
prior to or concurrently with the date such principal
amortization payment date is due, is at least equal to the
amount of such principal amortization payment due on such
date and (2) Revolving Loans, no Interest Period shall extend
beyond any Reduction Date unless the portion of Revolving
Loans consisting of Alternate
15
Base Rate Loans together with the portion of Revolving Loans
consisting of LIBOR Rate Loans with Interest Periods expiring
prior to or concurrently with such Reduction Date, is at
least equal to the Regularly Scheduled Reduction Amount due
on such Reduction Date; and
(E) no more than six (6) LIBOR Rate Loans may be
in effect at any time. For purposes hereof, LIBOR Rate Loans
with different Interest Periods shall be considered as
separate LIBOR Rate Loans, even if they shall begin on the
same date, although borrowings, extensions and conversions
may, in accordance with the provisions hereof, be combined at
the end of existing Interest Periods to constitute a new
LIBOR Rate Loan with a single Interest Period.
"Investment" shall mean (a) the acquisition (whether for cash,
----------
property, services, assumption of Indebtedness, securities or otherwise) of
assets, shares of Capital Stock, bonds, notes, debentures, partnership, joint
ventures or other ownership interests or other securities of any Person or (b)
any deposit with, or advance, loan or other extension of credit to, such Person
(other than deposits made in connection with the purchase of equipment or other
assets in the ordinary course of business) or (c) any other capital
contribution to or investment in such Person, including, without limitation,
any Guaranty Obligation (including any support for a Letter of Credit issued on
behalf of such Person) incurred for the benefit of such Person.
"Issuing Lender" shall mean First Union.
--------------
"Issuing Lender Fees" shall have the meaning set forth in Section
-------------------
2.6(c).
"Joinder Agreement" shall mean a Joinder Agreement in substantially
-----------------
the form of Schedule 5.10, executed and delivered by an Additional Credit Party
-------------
in accordance with the provisions of Section 5.10.
"Leases" shall mean any leases, licenses, permits, rights of way or
------
other interests of the Credit Parties in real property of the Credit Parties
related to the Broadcasting Properties.
"Lender" shall have the meaning set forth in the first paragraph of
------
this Credit Agreement.
"Letters of Credit" shall mean any letter of credit issued by the
-----------------
Issuing Lender pursuant to the terms hereof, as such Letters of Credit may be
amended, modified, extended, renewed or replaced from time to time.
"Letter of Credit Fee" shall have the meaning set forth in Section
--------------------
2.6(b).
"Leverage Ratio" shall mean the ratio of (i) Consolidated Funded Debt
--------------
to (ii) Consolidated EBITDA.
"LIBOR" shall mean, for any LIBOR Rate Loan for any Interest Period
-----
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Telerate Page
16
3750 (or any successor page) as the London interbank offered rate for deposits
in Dollars at approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period for a term comparable to such Interest
Period. If for any reason such rate is not available, the term "LIBOR" shall
mean, for any LIBOR Rate Loan for any Interest Period therefor, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period for a term comparable to such Interest
Period; provided, however, if more than one rate is specified on Reuters Screen
-------- -------
LIBO Page, the applicable rate shall be the arithmetic mean of all such rates
(rounded upwards, if necessary, to the nearest 1/100 of 1%). If, for any
reason, neither of such rates is available, then "LIBOR" shall mean the rate
per annum at which, as determined by the Administrative Agent, Dollars in an
amount comparable to the Loans then requested are being offered to leading
banks at approximately 11:00 A.M. London time, two (2) Business Days prior to
the commencement of the applicable Interest Period for settlement in
immediately available funds by leading banks in the London interbank market for
a period equal to the Interest Period selected.
"LIBOR Lending Office" shall mean, initially, the office of each
--------------------
Lender designated as such Lender's LIBOR Lending Office shown on Schedule 9.2;
------------
and thereafter, such other office of such Lender as such Lender may from time
to time specify to the Administrative Agent and the Borrower as the office of
such Lender at which the LIBOR Rate Loans of such Lender are to be made.
"LIBOR Rate" shall mean a rate per annum (rounded upwards, if
----------
necessary, to the nearest 1/100th of 1%) determined by the Administrative Agent
pursuant to the following formula:
LIBOR Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
"LIBOR Rate Loan" shall mean Loans the rate of interest applicable to
---------------
which is based on the LIBOR Rate.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
----
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and any
Capital Lease having substantially the same economic effect as any of the
foregoing).
"Loan" shall mean a Revolving Loan, a Tranche A Term Loan, a Tranche B
----
Term Loan and/or an Additional Loan, as appropriate.
"LOC Commitment" shall mean the commitment of the Issuing Lender to
--------------
issue Letters of Credit and with respect to each Lender that has a Revolving
Commitment, the commitment of such Lender to purchase participation interests
in the Letters of Credit up to such Lender's LOC
17
Committed Amount as specified in Schedule 2.1(a), as such amount may be reduced
---------------
from time to time in accordance with the provisions hereof.
"LOC Commitment Percentage" shall mean, for each Lender, the
-------------------------
percentage identified as its LOC Commitment Percentage on Schedule 2.1(a), as
---------------
such percentage may be modified in connection with any assignment made in
accordance with the provisions of Section 9.6(c).
"LOC Committed Amount" shall have the meaning set forth in Section
--------------------
2.5(a).
"LOC Documents" shall mean, with respect to any Letter of Credit, such
-------------
Letter of Credit, any amendments thereto, any documents delivered in connection
therewith, any application therefor, and any agreements, instruments,
guarantees or other documents (whether general in application or applicable
only to such Letter of Credit) governing or providing for (i) the rights and
obligations of the parties concerned or (ii) any collateral security for such
obligations.
"LOC Obligations" shall mean, at any time, the sum of (i) the maximum
---------------
amount which is, or at any time thereafter may become, available to be drawn
under Letters of Credit then outstanding, assuming compliance with all
requirements for drawings referred to in such Letters of Credit plus (ii) the
----
aggregate amount of all drawings under Letters of Credit honored by the Issuing
Lender but not theretofore reimbursed.
"LOC Participant" shall have the meaning set forth in Section 2.5(c).
---------------
"Mandatory Borrowing" shall have the meaning set forth in Section
-------------------
2.5(e).
"Material Adverse Effect" shall mean a material adverse effect on (a)
-----------------------
the business, operations, property, assets (including any Governmental
Approvals), condition (financial or otherwise) or prospects of the Borrower and
its Subsidiaries taken as a whole, (b) the ability of the Borrower or any
Guarantor to perform its obligations, when such obligations are required to be
performed, under this Credit Agreement, any of the Notes or any other Credit
Document or (c) the validity or enforceability of this Credit Agreement, any of
the Notes or any of the other Credit Documents or any material provision of any
of the foregoing or any of the rights or remedies of the Administrative Agent
or the Lenders hereunder or thereunder; provided, that it is understood and
--------
agreed that the changes in results of operations and financial condition of the
Borrower and its Subsidiaries from December 31, 2000 to December 31, 2001 (as
reflected in the unaudited financial statements of the Borrower and its
Subsidiaries dated December 31, 2001), shall not constitute a "Material Adverse
Effect".
"Material Contract" shall mean (a) the FCC Licenses, (b) the
-----------------
Affiliation Agreements, (c) those individual Program Contracts involving
monetary liability in excess of $1,000,000 per annum, (d) any contract or other
agreement, written or oral, of the Borrower or any of its Subsidiaries
involving monetary liability of or to any such Person in an amount in excess of
$1,000,000 per annum and (e) any other contract, agreement, permit or license,
written or oral, of the Borrower or any of its Subsidiaries the failure to
comply with which could reasonably be expected to have a Material Adverse
Effect.
18
"Material FCC License" shall mean any FCC License other than an
--------------------
Immaterial FCC License, including, without limitation, any FCC License
designated as a "Material FCC License" on Schedule 3.24.
-------------
"Material PUC Authorization" shall mean any PUC Authorization other
--------------------------
than an Immaterial PUC Authorization, including, without limitation, any PUC
Authorization designated as a "Material PUC Authorization" on Schedule 3.24.
-------------
"Materials of Environmental Concern" shall mean any gasoline or
----------------------------------
petroleum (including crude oil or any fraction thereof) or petroleum products
or any hazardous or toxic substances, materials or wastes, defined or regulated
as such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Maturity Date" shall mean (i) with respect to the Tranche A Term
-------------
Loan, the Tranche A Term Loan Maturity Date, (ii) with respect to the Tranche B
Term Loan, the Tranche B Term Loan Maturity Date and (iii) with respect to
Revolving Loans, the Revolving Commitment Termination Date.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
-------
"Multiemployer Plan" shall mean a Plan that is a multiemployer plan as
------------------
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean the aggregate cash proceeds received by
-----------------
the Borrower or any Subsidiary in respect of any Asset Disposition, Equity
Issuance or Debt Issuance, net of (a) direct costs (including, without
limitation, legal, accounting and investment banking fees, and sales
commissions), (b) unless and until released to the Borrower or such Subsidiary,
amounts held in escrow to be applied as part of the purchase price of any Asset
Disposition and (c) taxes paid or payable as a result thereof; it being
understood that "Net Cash Proceeds" shall include, without limitation, any cash
received upon the sale or other disposition of any non-cash consideration
received by the Borrower or any Subsidiary in any Asset Disposition, Equity
Issuance or Debt Issuance and any cash released from escrow as part of the
purchase price in connection with any Asset Disposition.
"Network" shall mean any of the National Broadcasting Company, Inc.,
-------
American Broadcasting Company, Inc., CBS Television Network, Inc., Fox
Broadcasting Company, United Paramount Network or the Warner Brothers Network.
"Note" or "Notes" shall mean the Revolving Notes, the Tranche A Term
---- -----
Notes and/or the Tranche B Term Notes, collectively, separately or
individually, as appropriate.
"Notice of Borrowing" shall mean the written notice of borrowing as
-------------------
referenced and defined in Section 2.1(b)(i).
19
"Notice of Conversion/Extension" shall mean the written notice of
------------------------------
extension or conversion as referenced and defined in Section 2.11.
"Obligations" shall mean, collectively, Loans and LOC Obligations.
-----------
"Ownership Reports" shall mean with respect to any Television Station
-----------------
owned by any Credit Party, the report and certifications filed with the FCC
pursuant to 47 C.F.R. [sec]73.3615, or any comparable reports filed pursuant to
any successor regulation thereto or otherwise required by applicable
Communications Law.
"Parent" shall mean ▇▇▇▇▇▇ Communications, Inc., a Washington
------
corporation.
"Parent Pledge Agreement" shall mean the Pledge Agreement dated as of
-----------------------
the Closing Date executed by the Parent and delivered to the Administrative
Agent.
"Participant" shall have the meaning set forth in Section 9.6(b).
-----------
"Participation Interest" shall mean a participation interest purchased
----------------------
by a Lender in LOC Obligations as provided in Section 2.5(c).
"Patent Licenses" shall mean all agreements, whether written or oral,
---------------
providing for the grant by or to a Person of any right to manufacture, use or
sell any invention covered by a Patent, including, without limitation, any
thereof referred to in Schedule 3.16 to the Credit Agreement.
-------------
"Patents" shall mean all letters patent of the United States or any
-------
other country, now existing or hereafter arising, and all improvement patents,
reissues, reexaminations, patents of additions, renewals and extensions
thereof, including, without limitation, any thereof referred to in Schedule
--------
3.16 to this Credit Agreement, and (ii) all applications for letters patent of
----
the United States or any other country, now existing or hereafter arising, and
all provisionals, divisions, continuations and continuations-in-part and
substitutes thereof, including, without limitation, any thereof referred to in
Schedule 3.16 to this Credit Agreement.
-------------
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
----
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Acquisition" shall mean an acquisition or any series of
---------------------
related acquisitions of the type of business permitted to be engaged in by the
Borrower and its Subsidiaries pursuant to Section 6.4 hereof so long as (a) no
Default or Event of Default shall then exist or would exist after giving effect
thereto, (b) the Credit Parties shall demonstrate to the reasonable
satisfaction of the Administrative Agent that the Credit Parties will be in pro
forma compliance with all of the terms and provisions of the financial
covenants set forth in Section 5.9, (c) the Administrative Agent, on behalf of
the Lenders, shall have received (or shall receive in connection with the
closing of such acquisition) a first priority perfected security interest in
the property acquired and (d) if the total consideration (including, without
limitation, assumed liabilities, earnout payments and any other deferred
payment) for the business or property acquired in such acquisition or
20
series of related acquisitions exceeds $5,000,000, the Required Lenders shall
have approved such acquisition(s); provided that no such approval of the
--------
Required Lenders shall be required if, after giving effect to such
acquisition(s) on a pro forma basis consistent with Section 1.3, the Leverage
Ratio is less than 3.5 to 1.0.
"Permitted Investments" shall mean:
---------------------
(i) cash and Cash Equivalents;
(ii) Investments existing as of the Closing Date and set
forth on Schedule 1.1-2;
--------------
(iii) receivables owing to the Borrower or any of its
Subsidiaries or any receivables and advances to suppliers, in each case
if created, acquired or made in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms,
business practices consistent with those of the Borrower and its
Subsidiaries existing on the Closing Date and prudent industry
practices;
(iv) Investments in and loans to any Credit Party
expressly subordinated in all cases to the Credit Party Obligations
pursuant to the terms of the Subordination Agreement;
(v) loans and advances to officers, directors and
employees in an aggregate amount not to exceed $1,000,000 at any time
outstanding;
(vi) Investments (including debt obligations) received in
connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course
of business;
(vii) Investments, acquisitions or transactions permitted
under Section 6.5(b); and
(viii) additional loans, advances and/or Investments of a
nature not contemplated by the foregoing clauses hereof, provided that
such loans, advances and/or investments made pursuant to this clause
(viii) shall not exceed an aggregate amount of $2,000,000.
"Permitted Liens" shall mean:
---------------
(i) Liens created by or otherwise existing under or in
connection with this Credit Agreement or the other Credit Documents in
favor of the Lenders;
(ii) Liens in favor of a Lender or any affiliate of a
Lender hereunder in connection with Hedging Agreements, but only
(A) to the extent such Liens secure
21
obligations under Hedging Agreements with any Lender, or any affiliate
of a Lender, (B) to the extent such Liens are on the same collateral as
to which the Administrative Agent on behalf of the Lenders also has a
Lien, (C) if such Hedging Agreement counterparty and the Lenders shall
share pari passu in the collateral subject to such Liens and (D) to the
---- -----
extent such Hedging Agreements are permitted by Section 6.1(d);
(iii) Liens securing purchase money indebtedness and
Capital Lease Obligations (and refinancings thereof) to the extent
permitted under Section 6.1(c); provided, that (A) any such Lien
attaches to such property concurrently with or within 30 days after
the acquisition thereof and (B) such Lien attaches solely to the
property so acquired in such transaction;
(iv) Liens for taxes, assessments, charges or other
governmental levies not yet due or as to which the period of grace (not
to exceed 60 days), if any, related thereto has not expired or which
are being contested in good faith by appropriate proceedings, provided
--------
that adequate reserves with respect thereto are maintained on the books
of the Borrower or its Subsidiaries, as the case may be, in conformity
with GAAP (or, in the case of Subsidiaries with significant operations
outside of the United States of America, generally accepted accounting
principles in effect from time to time in their respective
jurisdictions of organization);
(v) statutory Liens such as carriers', warehousemen's,
mechanics', materialmen's, landlords', repairmen's or other like Liens
arising in the ordinary course of business which are not overdue for a
period of more than 30 days or which are being contested in good faith
by appropriate proceedings;
(vi) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements;
(vii) deposits to secure leases incurred in the ordinary
course of business;
(viii) easements, rights of way, restrictions and other
similar encumbrances affecting real property which, in the aggregate,
are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
applicable Person; and
(ix) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any Lien
referred to in the foregoing clauses; provided that such extension,
--------
renewal or replacement Lien shall be limited to all or a part of the
property which secured the Lien so extended, renewed or replaced (plus
improvements on such property).
22
"Permitted Parent Debt" shall mean any Indebtedness of the Parent that
---------------------
(a) is existing as of the Closing Date and set forth on Schedule 1.1-3 (together
--------------
with renewals, refinancings or extensions thereof in a principal amount not in
excess of the principal amount outstanding as of the date of any such renewal,
refinancing or extension) or (b) is incurred after the Closing Date and approved
by the Administrative Agent.
"Permitted Parent Liens" shall mean any Liens securing Permitted Parent
----------------------
Debt that (a) are existing as of the Closing Date and set forth on Schedule
--------
1.1-4 or (b) granted after the Closing Date and approved by the Administrative
-----
Agent.
"Person" shall mean an individual, partnership, corporation, limited
------
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Plan" shall mean, at any particular time, any employee benefit plan
----
which is covered by Title IV of ERISA and in respect of which the Borrower or a
Commonly Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Pledge Agreements" shall mean (i) the Pledge Agreement dated as of the
-----------------
Closing Date executed by the Borrower and the Guarantors and delivered to the
Administrative Agent, (ii) the Parent Pledge Agreement and (iii) any other
Pledge Agreement executed by a Credit Party or an Additional Credit Party and
delivered to the Administrative Agent, in each case as the same may from time to
time be amended, supplemented or otherwise modified in accordance with the terms
hereof and thereof.
"Prime Rate" shall have the meaning set forth in the definition of
----------
Alternate Base Rate.
"Program" shall mean any television series or other program produced or
-------
distributed television release (including any syndicated series or other program
regardless of its medium of initial exploitation), in each case whether recorded
on film, videotape, audiotape, cassette cartridge, disc or by any other means,
method, process or device, whether now known or hereafter developed.
"Program Contracts" shall mean all contracts for television, film,
-----------------
programs, music and related audio rights, syndicated series exhibition rights
and other similar rights acquired under license agreements.
"Program Rights" shall mean 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" shall mean the maximum amount which the Borrower
--------------------
and/or any of its Subsidiaries or its or their co-ventures have furnished or
have contractually committed to
23
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" shall mean as at any date of
--------------------------------
determination, total amortization expense of the Borrower and its Subsidiaries
for the period of four (4) immediately preceding consecutive fiscal quarters
ending on or prior to such date of determination which is directly attributable
to Programs, Program Rights or Program Contracts, determined on a Consolidated
basis.
"Programming Cash Payments" shall mean, for any period, the aggregate
-------------------------
cash payments actually made by Borrower and its Subsidiaries on a Consolidated
basis during such period in respect of Programming Obligations.
"Programming Obligations" shall mean, as at any date of determination,
-----------------------
all direct or indirect liabilities (including, but without duplication, any
Guaranty 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 its Subsidiaries, whether or not reflected on the
Consolidated balance sheet of the Borrower and its Subsidiaries.
"Properties" shall have the meaning set forth in Section 3.10(a).
----------
"PUC" shall mean any state, provincial or other local regulatory agency
---
or body that exercises jurisdiction over the rates or services or the ownership,
construction or operation of any television or radio station or over Persons who
own, construct or operate any television or radio station, in each case by
reason of the nature or type of the business subject to regulation and not
pursuant to laws and regulations of general applicability to Persons conducting
business in any such jurisdiction.
"PUC Authorizations" shall mean any application or registration with,
------------------
and any validation, exemption, franchise, waiver, approval, order or
authorization, consent, license, certificate and permit (other than any building
permit) from any PUC.
"Purchasing Lenders" shall have the meaning set forth in Section
------------------
9.6(c).
"Radio Groups" shall mean Radio Stations that are grouped together for
------------
financial reporting purposes, including the "Radio Seattle Group," the "Radio
Portland Group," the "Regional Radio Group" and any other set of Radio Stations
designated by the Borrower as a group for financial reporting purposes.
"Radio Station" shall mean all of the radio stations owned and operated
-------------
by the Borrower and its Subsidiaries (including all radio stations acquired
through Permitted Acquisitions);
24
provided, in the case of a disposition permitted pursuant to the terms hereof,
such term shall not include any radio station transferred in connection with
such disposition.
"Recovery Event" shall mean the receipt by the Borrower or any of its
--------------
Subsidiaries of any cash insurance proceeds or condemnation award payable by
reason of theft, loss, physical destruction or damage, taking or similar event
with respect to any of their respective property or assets.
"Reduction Date" shall have the meaning set forth in Section
--------------
2.7(b)(ii).
"Register" shall have the meaning set forth in Section 9.6(d).
--------
"Regularly Scheduled Reduction Amounts" shall have the meaning set
-------------------------------------
forth in Section 2.7(b)(ii).
"Reimbursement Obligation" shall mean the obligation of the Borrower to
------------------------
reimburse the Issuing Lender pursuant to Section 2.5(d) for amounts drawn under
Letters of Credit.
"Reorganization" shall mean, with respect to any Multiemployer Plan,
--------------
the condition that such Plan is in reorganization within the meaning of such
term as used in Section 4241 of ERISA.
"Reportable Event" shall mean any of the events set forth in Section
----------------
4043(c) of ERISA, other than those events as to which the thirty-day notice
period is waived under PBGC Reg. [sec]4043.
"Required Lenders" shall mean Lenders holding in the aggregate not less
----------------
than 51% of the sum of (i) all Revolving Loans and LOC Obligations then
outstanding at such time plus the aggregate unused Revolving Commitments at such
time (treating for purposes hereof in the case of LOC Obligations, in the case
of the Issuing Lender, only the portion of the LOC Obligations of the Issuing
Lender which is not subject to the Participation Interests of the other Lenders
and, in the case of the Lenders other than the Issuing Lender, the Participation
Interests of such Lenders in LOC Obligations hereunder as direct Obligations)
and (ii) the principal amount of the Term Loans then outstanding at such time;
provided, however, that if any Lender shall be a Defaulting Lender at such time,
-------- -------
then there shall be excluded from the determination of Required Lenders,
Obligations (including Participation Interests) owing to such Defaulting Lender
and such Defaulting Lender's Commitments, or after termination of the
Commitments, the principal balance of the Obligations owing to such Defaulting
Lender.
"Requirement of Law" shall mean, as to any Person, the Certificate of
------------------
Incorporation and By-laws or other organizational or governing documents of such
Person, and each law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
25
"Responsible Officer" shall mean, (a) as to the Borrower, the
-------------------
President, the Assistant Secretary or the sole Director or (b) as to any other
Credit Party, the Manager, the President or the Assistant Secretary.
"Restricted Payment" shall mean (a) any dividend or other distribution,
------------------
direct or indirect, on account of any shares of any class of Capital Stock of
the Borrower or any of its Subsidiaries, now or hereafter outstanding, (b) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of Capital
Stock of the Borrower or any of its Subsidiaries, now or hereafter outstanding,
(c) any payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class of Capital
Stock of the Borrower or any of its Subsidiaries, now or hereafter outstanding
and (d) the payment by the Borrower or any of its Subsidiaries of any management
or consulting fee to any Person or of any salary, bonus or other form of
compensation to any Person who is directly or indirectly a significant partner,
shareholder, owner or executive officer of any such Person, to the extent such
salary, bonus or other form of compensation is not included in the corporate
overhead of the Borrower or such Subsidiary.
"Revolving Commitment" shall mean, with respect to each Lender, the
--------------------
commitment of such Lender to make Revolving Loans in an aggregate principal
amount at any time outstanding up to such Lender's Revolving Committed Amount as
specified in Schedule 2.1(a), as such amount may be reduced from time to time in
---------------
accordance with the provisions hereof.
"Revolving Commitment Percentage" shall mean, for each Lender, the
-------------------------------
percentage identified as its Revolving Commitment Percentage on Schedule 2.1(a),
---------------
as such percentage may be modified in connection with any assignment made in
accordance with the provisions of Section 9.6(c).
"Revolving Commitment Termination Date" shall mean February 29, 2008.
-------------------------------------
"Revolving Committed Amount" shall have the meaning set forth in
--------------------------
Section 2.1(a).
"Revolving Loans" shall have the meaning set forth in Section 2.1.
---------------
"Revolving Note" or "Revolving Notes" shall mean the promissory notes
-------------- ---------------
of the Borrower in favor of each of the Lenders evidencing the Revolving Loans
provided pursuant to Section 2.1(e), individually or collectively, as
appropriate, as such promissory notes may be amended, modified, supplemented,
extended, renewed or replaced from time to time.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
---
McGraw Hill Companies, Inc.
"Security Agreements" shall mean (i) the Security Agreement dated as of
-------------------
the Closing Date executed by the Borrower and the Guarantors and delivered to
the Administrative Agent and (ii) any other Security Agreement executed by a
Credit Party or an Additional Credit Party
26
and delivered to the Administrative Agent, in each case as amended, modified or
supplemented from time to time in accordance with its terms.
"Security Documents" shall mean the Security Agreements, the Pledge
------------------
Agreements and such other documents executed and delivered in connection with
the attachment and perfection of the Administrative Agent's security interests
and Liens arising thereunder, including, without limitation, UCC financing
statements and patent, trademark and copyright filings.
"Single Employer Plan" shall mean any Plan that is not a Multiemployer
--------------------
Plan.
"Specified Sales" shall mean (a) the sale, transfer, lease or other
---------------
disposition of inventory, materials and other assets in the ordinary course of
business (which in no event shall be deemed to include the sale of all or
substantially all of the assets of a Station) and (b) the sale, transfer or
other disposition of cash or Cash Equivalents.
"Stations" shall mean a collective reference to the Television Stations
--------
and the Radio Stations.
"Subordination Agreement" shall mean the Subordination Agreement dated
-----------------------
as of the Closing Date executed by the Credit Parties in favor of the
Administrative Agent, pursuant to which the Credit Parties have agreed to
subordinate intercompany loans between or among the Credit Parties to the
payment in full of the Credit Party Obligations.
"Subsidiary" shall mean, as to any Person, a corporation, partnership,
----------
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Credit Agreement shall
refer to a Subsidiary or Subsidiaries of the Borrower.
"Taxes" shall have the meaning set forth in Section 2.19.
-----
"Television Station" shall mean all of the television stations owned
------------------
and operated by the Borrower and its Subsidiaries (including all television
stations acquired through Permitted Acquisitions); provided, in the case of a
disposition permitted pursuant to the terms hereof, such term shall not include
any television station transferred in connection with such disposition.
"Term Loans" shall mean, collectively, the Tranche A Term Loans and the
----------
Tranche B Term Loans.
27
"Trademark License" shall mean any agreement, whether written or oral,
-----------------
providing for the grant by or to a Person of any right to use any Trademark,
including, without limitation, any thereof referred to in Schedule 3.16 to this
-------------
Credit Agreement.
"Trademarks" shall mean all trademarks, trade names, corporate names,
----------
company names, business names, fictitious business names, service marks,
elements of package or trade dress of goods or services, logos and other source
or business identifiers (other than such items that are of de minimus value),
together with the goodwill associated therewith, now existing or hereafter
adopted or acquired, all registrations and recordings thereof, and all
applications in connection therewith, whether in the United States Patent and
Trademark Office or in any similar office or agency of the United States, any
State thereof or any other country or any political subdivision thereof,
including, without limitation, any thereof referred to in Schedule 3.16 to this
-------------
Credit Agreement, and (ii) all renewals thereof including, without limitation,
any thereof referred to in Schedule 3.16.
-------------
"Tranche" shall mean the collective reference to (a) LIBOR Rate Loans
-------
whose Interest Periods begin and end on the same day and (b) Alternate Base Rate
Loans made on the same day. A Tranche with respect to LIBOR Rate Loans may
sometimes be referred to as a "Eurodollar Tranche".
"Tranche A Term Loan" shall have the meaning set forth in Section
-------------------
2.2(a).
"Tranche A Term Loan Commitment" shall mean, with respect to each
------------------------------
Lender, the commitment of such Lender to make its portion of the Tranche A Term
Loan in a principal amount equal to such Lender's Tranche A Term Loan Commitment
Percentage of the Tranche A Term Loan Committed Amount.
"Tranche A Term Loan Commitment Percentage" shall mean, for any Lender,
-----------------------------------------
the percentage identified as its Tranche A Term Loan Commitment Percentage on
Schedule 2.1(a), as such percentage may be modified in connection with any
---------------
assignment made in accordance with the provisions of Section 9.6(c).
"Tranche A Term Loan Committed Amount" shall have the meaning set forth
------------------------------------
in Section 2.2(a).
"Tranche A Term Loan Maturity Date" shall mean February 29, 2008.
---------------------------------
"Tranche A Term Note" or "Tranche A Term Notes" shall mean the
-------------------- ----------------------
promissory notes of the Borrower in favor of each of the Lenders evidencing the
portion of the Tranche A Term Loan provided pursuant to Section 2.2(d),
individually or collectively, as appropriate, as such promissory notes may be
amended, modified, restated, supplemented, extended, renewed or replaced from
time to time.
"Tranche B Term Loan" shall have the meaning set forth in Section
-------------------
2.3(a).
28
"Tranche B Term Loan Commitment" shall mean, with respect to each
------------------------------
Lender, the commitment of such Lender to make its portion of the Tranche B Term
Loan in a principal amount equal to such Lender's Tranche B Term Loan Commitment
Percentage of the Tranche B Term Loan Committed Amount.
"Tranche B Term Loan Commitment Percentage" shall mean, for any Lender,
-----------------------------------------
the percentage identified as its Tranche B Term Loan Commitment Percentage on
Schedule 2.1(a), as such percentage may be modified in connection with any
---------------
assignment made in accordance with the provisions of Section 9.6(c).
"Tranche B Term Loan Committed Amount" shall have the meaning set forth
------------------------------------
in Section 2.3(a).
"Tranche B Term Loan Maturity Date" shall mean February 28, 2010.
---------------------------------
"Tranche B Term Note" or "Tranche B Term Notes" shall mean the
-------------------- ----------------------
promissory notes of the Borrower in favor of each of the Lenders evidencing the
portion of the Tranche B Term Loan provided pursuant to Section 2.3(d),
individually or collectively, as appropriate, as such promissory notes may be
amended, modified, restated, supplemented, extended, renewed or replaced from
time to time.
"Transfer Effective Date" shall mean the effective date of any
-----------------------
Commitment Transfer Supplement.
"2.19 Certificate" shall have the meaning set forth in Section 2.19.
----------------
"Type" shall mean, as to any Loan, its nature as an Alternate Base Rate
----
Loan or LIBOR Rate Loan, as the case may be.
"Voting Stock" of a corporation, limited liability company or
------------
partnership shall mean, at any time, all classes of the Capital Stock or other
voting securities of such Person then outstanding and ordinarily entitled to
vote in the election of directors (or similar governing authority).
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS.
------------------------------
(a) Unless otherwise specified therein, all terms defined
in this Credit Agreement shall have the defined meanings when used in
the Notes or other Credit Documents or any certificate or other
document made or delivered pursuant hereto.
(b) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Credit Agreement shall
refer to this Credit Agreement as a whole and not to any particular
provision of this Credit Agreement, and Section, subsection, Schedule
and Exhibit references are to this Credit Agreement unless otherwise
specified.
29
(c) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 1.3 ACCOUNTING TERMS.
----------------
Unless otherwise specified herein, all accounting terms used herein
shall be interpreted, all accounting determinations hereunder shall be made, and
all financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP applied on a basis consistent with the most recent audited
Consolidated financial statements of the Borrower delivered to the Lenders;
provided that, if the Borrower notifies the Administrative Agent that it wishes
--------
to amend any covenant in Section 5.9 to eliminate the effect of any change in
GAAP on the operation of such covenant (or if the Administrative Agent notifies
the Borrower that the Required Lenders wish to amend Section 5.9 for such
purpose), then the Borrower's compliance with such covenant shall be determined
on the basis of GAAP in effect immediately before the relevant change in GAAP
became effective, until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to the Borrower and the Required Lenders.
The Borrower shall deliver to the Administrative Agent and each Lender
at the same time as the delivery of any annual or quarterly financial statements
given in accordance with the provisions of Section 5.1, (i) a description in
reasonable detail of any material change in the application of accounting
principles employed in the preparation of such financial statements from those
applied in the most recently preceding quarterly or annual financial statements
as to which no objection shall have been made in accordance with the provisions
above and (ii) a reasonable estimate of the effect on the financial statements
on account of such changes in application.
For purposes of computing the financial covenants set forth in Section
5.9 for any applicable test period, any Permitted Acquisition or permitted sale
of assets (including a stock sale) shall have been deemed to have taken place as
of the first day of such applicable test period.
ARTICLE II
THE LOANS; AMOUNT AND TERMS
SECTION 2.1 REVOLVING LOANS.
---------------
(a) Revolving Commitment. During the Commitment Period,
--------------------
subject to the terms and conditions hereof, each Lender severally
agrees to make revolving credit loans ("Revolving Loans") to the
---------------
Borrower from time to time for the purposes hereinafter set forth;
provided, however, that (i) with regard to each Lender individually,
-------- -------
the sum of such Lender's share of outstanding Revolving Loans plus such
----
Lender's LOC Commitment Percentage of LOC Obligations shall not exceed
such Lender's Revolving Commitment Percentage of the aggregate
Revolving Committed Amount, and (ii) with regard to the Lenders
collectively, the sum of the aggregate amount of outstanding Revolving
Loans
30
plus LOC Obligations shall not exceed the aggregate Revolving
----
Committed Amount then in effect. For purposes hereof, the aggregate
amount of Revolving Loans available hereunder shall be TWENTY-FIVE
Million DOLLARS ($25,000,000) (as such aggregate maximum amount may be
reduced from time to time as provided in Section 2.7, the "Revolving
---------
Committed Amount"). Revolving Loans may consist of Alternate Base Rate
----------------
Loans or LIBOR Rate Loans, or a combination thereof, as the Borrower
may request, and may be repaid and reborrowed in accordance with the
provisions hereof; provided, however, Revolving Loans made on the
-------- -------
Closing Date or on any of the three Business Days following the
Closing Date may only consist of Alternate Base Rate Loans.
(b) Revolving Loan Borrowings.
-------------------------
(i) Notice of Borrowing. The Borrower shall
-------------------
request a Revolving Loan borrowing by written notice (or
telephone notice promptly confirmed in writing which
confirmation may be by fax) to the Administrative Agent not
later than 1:00 P.M. (Charlotte, North Carolina time) on the
Business Day prior to the date of the requested borrowing in
the case of Alternate Base Rate Loans, and on the third
Business Day prior to the date of the requested borrowing in
the case of LIBOR Rate Loans. Each such request for
borrowing shall be irrevocable and shall specify (A) that a
Revolving Loan is requested, (B) the date of the requested
borrowing (which shall be a Business Day), (C) the aggregate
principal amount to be borrowed, and (D) whether the
borrowing shall be comprised of Alternate Base Rate Loans,
LIBOR Rate Loans or a combination thereof, and if LIBOR Rate
Loans are requested, the Interest Period(s) therefor. A form
of Notice of Borrowing (a "Notice of Borrowing") is attached
-------------------
as Schedule 2.1(b)(i). If the Borrower shall fail to specify
------------------
in any such Notice of Borrowing (I) an applicable Interest
Period in the case of a LIBOR Rate Loan, then such notice
shall be deemed to be a request for an Interest Period of
one month, or (II) the type of Revolving Loan requested,
then such notice shall be deemed to be a request for an
Alternate Base Rate Loan hereunder. The Administrative Agent
shall give notice to each Lender promptly upon receipt of
each Notice of Borrowing, the contents thereof and each such
Lender's share thereof.
(ii) Advances. Each Lender will make its
--------
Revolving Commitment Percentage of each Revolving Loan
borrowing available to the Administrative Agent for the
account of the Borrower at the office of the Administrative
Agent specified in Section 9.2, or at such other office as
the Administrative Agent may designate in writing, by 1:00
P.M. (Charlotte, North Carolina time) on the date specified
in the applicable Notice of Borrowing, in Dollars and in
funds immediately available to the Administrative Agent.
Such borrowing will then be made available to the Borrower
by the Administrative Agent by crediting the account of the
Borrower on the books of such office with the aggregate of
the amounts made available to the Administrative Agent by
the Lenders and in like funds as received by the
Administrative Agent.
31
(c) Repayment. The principal amount of all Revolving
---------
Loans shall be due and payable in full on the Revolving Commitment
Termination Date.
(d) Interest. Subject to the provisions of Section 2.10,
--------
Revolving Loans shall bear interest as follows:
(i) Alternate Base Rate Loans. During such
-------------------------
periods as Revolving Loans shall be comprised of Alternate
Base Rate Loans, each such Alternate Base Rate Loan shall bear
interest at a per annum rate equal to the sum of the Alternate
Base Rate plus the Applicable Percentage; and
----
(ii) LIBOR Rate Loans. During such periods as
----------------
Revolving Loans shall be comprised of LIBOR Rate Loans, each
such LIBOR Rate Loan shall bear interest at a per annum rate
equal to the sum of the LIBOR Rate plus the Applicable
----
Percentage.
Interest on Revolving Loans shall be payable in arrears on each
Interest Payment Date.
(e) Revolving Notes. The Borrower's obligation to pay
----------------
each Lender's Revolving Loans shall be evidenced by a Revolving Note
made payable to such Lender in substantially the form of Schedule
--------
2.1(e).
------
SECTION 2.2 TRANCHE A TERM LOANS.
--------------------
(a) Tranche A Term Loan. Subject to the terms and
-------------------
conditions hereof and in reliance upon the representations and
warranties set forth herein, each Lender severally agrees to make
available to the Administrative Agent on the Closing Date such
Lender's Tranche A Term Loan Commitment Percentage of a term loan in
Dollars (the "Tranche A Term Loans") in the aggregate principal
--------------------
amount of FORTY-FIVE MILLION DOLLARS ($45,000,000) (the "Tranche A
---------
Term Loan Committed Amount") for the purposes hereinafter set forth.
--------------------------
The Tranche A Term Loans may consist of Alternate Base Rate Loans or
LIBOR Rate Loans, or a combination thereof, as the Borrower may
request; provided, however, Tranche A Term Loans made on the Closing
-------- -------
Date may only consist of Alternate Base Rate Loans. Amounts repaid on
the Tranche A Term Loans may not be reborrowed.
(b) Repayment of Tranche A Term Loans. The principal
---------------------------------
amount of the Tranche A Term Loans shall be repaid in twenty (20)
consecutive calendar quarterly installments as follows, unless
accelerated sooner pursuant to Section 7.2:
32
------------------------------- ------------------------------------ ------------------------------------
Tranche A Term Loan Principal Percentage of Tranche A Term Loan
Principal Amortization Amortization Payment Committed Amount Amortized
Payment Dates
------------------------------- ------------------------------------ ------------------------------------
May 31, 2003 $1,125,000 2.50%
------------------------------- ------------------------------------ ------------------------------------
August 31, 2003 $1,125,000 2.50%
------------------------------- ------------------------------------ ------------------------------------
November 30, 2003 $1,125,000 2.50%
------------------------------- ------------------------------------ ------------------------------------
February 29, 2004 $1,125,000 2.50%
------------------------------- ------------------------------------ ------------------------------------
May 31, 2004 $1,687,500 3.75%
------------------------------- ------------------------------------ ------------------------------------
August 31, 2004 $1,687,500 3.75%
------------------------------- ------------------------------------ ------------------------------------
November 30, 2004 $1,687,500 3.75%
------------------------------- ------------------------------------ ------------------------------------
February 28, 2005 $1,687,500 3.75%
------------------------------- ------------------------------------ ------------------------------------
May 31, 2005 $1,687,500 3.75%
------------------------------- ------------------------------------ ------------------------------------
August 31, 2005 $1,687,500 3.75%
------------------------------- ------------------------------------ ------------------------------------
November 30, 2005 $1,687,500 3.75%
------------------------------- ------------------------------------ ------------------------------------
February 28, 2006 $1,687,500 3.75%
------------------------------- ------------------------------------ ------------------------------------
May 31, 2006 $2,250,000 5.00%
------------------------------- ------------------------------------ ------------------------------------
August 31, 2006 $2,250,000 5.00%
------------------------------- ------------------------------------ ------------------------------------
November 30, 2006 $2,250,000 5.00%
------------------------------- ------------------------------------ ------------------------------------
February 28, 2007 $2,250,000 5.00%
------------------------------- ------------------------------------ ------------------------------------
May 31, 2007 $4,500,000 10.00%
------------------------------- ------------------------------------ ------------------------------------
August 31, 2007 $4,500,000 10.00%
------------------------------- ------------------------------------ ------------------------------------
November 30, 2007 $4,500,000 10.00%
------------------------------- ------------------------------------ ------------------------------------
Tranche A Term Loan Maturity $4,500,000 10.00%
Date
------------------------------- ------------------------------------ ------------------------------------
(c) Interest on the Tranche A Term Loans. Subject to the
------------------------------------
provisions of Section 2.10, the Tranche A Term Loans shall bear
interest as follows:
(i) Alternate Base Rate Loans. During such
-------------------------
periods as the Tranche A Term Loans shall be comprised of
Alternate Base Rate Loans, each such Alternate Base Rate Loan
shall bear interest at a per annum rate equal to the sum of
the Alternate Base Rate plus the Applicable Percentage; and
----
(ii) LIBOR Rate Loans. During such periods as the
----------------
Tranche A Term Loans shall be comprised of LIBOR Rate Loans,
each such LIBOR Rate Loan shall bear interest at a per annum
rate equal to the sum of the LIBOR Rate plus the Applicable
----
Percentage.
Interest on the Tranche A Term Loans shall be payable
in arrears on each Interest Payment Date.
(d) Tranche A Term Loan Notes. The Borrower's obligation
-------------------------
to pay each Lender's portion of the Tranche A Term Loan shall be
evidenced by a Tranche A Term Loan Note made payable to such Lender in
substantially the form of Schedule 2.2(d).
---------------
33
SECTION 2.3 TRANCHE B TERM LOANS.
--------------------
(a) Tranche B Term Loan. Subject to the terms and
-------------------
conditions hereof and in reliance upon the representations and
warranties set forth herein, each Lender severally agrees to make
available to the Administrative Agent on the Closing Date such
Lender's Tranche B Term Loan Commitment Percentage of a term loan in
Dollars (the "Tranche B Term Loans") in the aggregate principal
--------------------
amount of EIGHTY MILLION DOLLARS ($80,000,000) (the "Tranche B Term
--------------
Loan Committed Amount") for the purposes hereinafter set forth. The
---------------------
Tranche B Term Loans may consist of Alternate Base Rate Loans or
LIBOR Rate Loans, or a combination thereof, as the Borrower may
request; provided, however, Tranche B Term Loans made on the Closing
-------- -------
Date may only consist of Alternate Base Rate Loans. Amounts repaid on
the Tranche B Term Loans may not be reborrowed.
(b) Repayment of Tranche B Term Loans. The principal
---------------------------------
amount of the Tranche B Term Loans shall be repaid in twenty-eight (28)
consecutive calendar quarterly installments as follows, unless
accelerated sooner pursuant to Section 7.2:
------------------------------- ------------------------------------ ------------------------------------
Principal Amortization Tranche B Term Loan Principal Percentage of Tranche B Term Loan
Payment Dates Amortization Payment Committed Amount Amortized
------------------------------- ------------------------------------ ------------------------------------
May 31, 2003 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
August 31, 2003 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
November 30, 2003 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
February 29, 2004 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
May 31, 2004 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
August 31, 2004 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
November 30, 2004 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
February 28, 2005 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
May 31, 2005 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
August 31, 2005 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
November 30, 2005 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
February 28, 2006 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
May 31, 2006 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
August 31, 2006 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
November 30, 2006 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
February 28, 2007 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
May 31, 2007 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
August 31, 2007 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
November 30, 2007 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
February 29, 2008 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
May 31, 2008 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
August 31, 2008 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
November 30, 2008 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
34
------------------------------- ------------------------------------ ------------------------------------
Principal Amortization Tranche B Term Loan Principal Percentage of Tranche B Term Loan
Payment Dates Amortization Payment Committed Amount Amortized
------------------------------- ------------------------------------ ------------------------------------
February 28, 2009 $200,000 0.25%
------------------------------- ------------------------------------ ------------------------------------
May 31, 2009 $18,800,000 23.5%
------------------------------- ------------------------------------ ------------------------------------
August 31, 2009 $18,800,000 23.5%
------------------------------- ------------------------------------ ------------------------------------
November 30, 2009 $18,800,000 23.5%
------------------------------- ------------------------------------ ------------------------------------
Tranche B Term Loan Maturity $18,800,000 23.5%
Date
------------------------------- ------------------------------------ ------------------------------------
(c) Interest on the Tranche B Term Loans. Subject to the
------------------------------------
provisions of Section 2.10, the Tranche B Term Loans shall bear
interest as follows:
(i) Alternate Base Rate Loans. During such
-------------------------
periods as the Tranche B Term Loans shall be comprised of
Alternate Base Rate Loans, each such Alternate Base Rate Loan
shall bear interest at a per annum rate equal to the sum of
the Alternate Base Rate plus the Applicable Percentage; and
----
(ii) LIBOR Rate Loans. During such periods as the
----------------
Tranche B Term Loans shall be comprised of LIBOR Rate Loans,
each such LIBOR Rate Loan shall bear interest at a per annum
rate equal to the sum of the LIBOR Rate plus the Applicable
----
Percentage.
Interest on the Tranche B Term Loans shall be payable
in arrears on each Interest Payment Date.
(d) Tranche B Term Loan Notes. The Borrower's obligation
-------------------------
to pay each Lender's portion of the Tranche B Term Loan shall be
evidenced by a Tranche B Term Loan Note made payable to such Lender in
substantially the form of Schedule 2.3(d).
---------------
SECTION 2.4 INCREMENTAL FACILITIES.
----------------------
Subject to the terms and conditions set forth herein, the Borrower
shall have the right, at any time and from time to time from the Closing Date
until the second anniversary of the Closing Date, to incur additional
Indebtedness under this Agreement in the form of one or more additional term
loan facilities or an increase to the existing Tranche B Term Loan facility
(each an "Incremental Facility") by an aggregate amount of up to $25,000,000.
--------------------
The following terms and conditions shall apply to each Incremental Facility: (a)
the loans made under any such Incremental Facility (each an "Additional Loan")
---------------
shall constitute Credit Party Obligations and will be secured and guaranteed
with the other Loans on a pari passu basis, (b) any such Incremental Facility
shall either (i) be in the form of an increase to the existing Tranche B Term
Loan facility and shall have the same terms (including interest rate, weighted
average life and maturity date) as the existing Tranche B Term Loan facility or
(ii) have (A) a weighted average life to maturity greater than the weighted
average life to maturity of the Tranche B Term Loans, (B) a final maturity at
least six months longer than the Tranche B Term Loan Maturity Date and
35
(C) an interest rate margin to be determined at the time such Incremental
Facility is made available, (c) any such Incremental Facility shall be entitled
to the same voting rights as the existing Loans and shall be entitled to
receive proceeds of prepayments on the same basis as comparable Loans, (d) any
such Incremental Facility shall be obtained from existing Lenders or from other
banks, financial institutions or investment funds, in each case in accordance
with the terms set forth below, (e) any such Incremental Facility shall be in a
minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in
excess thereof, (f) the proceeds of any Additional Loan will be used to finance
capital expenditures and working capital and other general corporate purposes,
including Permitted Acquisitions, (g) the Borrower shall execute such
promissory notes as are necessary to reflect the Additional Loans under any
such Incremental Facility, (h) the conditions to Extensions of Credit in
Section 4.2 shall have been satisfied and (i) the Agent shall have received
from the Borrower updated financial projections and an officer's certificate,
in each case in form and substance satisfactory to the Agent, demonstrating
that, after giving effect to any such Incremental Facility, the Borrower will
be in compliance with the financial covenants set forth in Section 5.9.
Participation in any such Incremental Facility hereunder shall be offered first
to each of the existing Lenders, but each such Lender shall have no obligation
to provide all or any portion of such Incremental Facility. If the amount of
the Incremental Facility requested by the Borrower shall exceed the commitments
which the existing Lenders are willing to provide with respect to such
Incremental Facility, then the Borrower may invite other banks, financial
institutions and investment funds reasonably acceptable to the Administrative
Agent to join this Agreement as Lenders hereunder for the portion of such
Incremental Facility not taken by existing Lenders, provided that such other
--------
banks, financial institutions and investment funds shall enter into such
joinder agreements to give effect thereto as the Administrative Agent and the
Borrower may reasonably request. The Administrative Agent is authorized to
enter into, on behalf of the Lenders, any amendment to this Agreement or any
other Credit Document as may be necessary to incorporate the terms of any new
Incremental Facility therein.
SECTION 2.5 LETTER OF CREDIT SUBFACILITY.
----------------------------
(a) Issuance. Subject to the terms and conditions hereof
--------
and of the LOC Documents, if any, and any other terms and conditions
which the Issuing Lender may reasonably require, during the Commitment
Period the Issuing Lender shall issue, and the Lenders shall
participate in, Letters of Credit for the account of the Borrower from
time to time upon request in a form acceptable to the Issuing Lender;
provided, however, that (i) the aggregate amount of LOC Obligations
-------- -------
shall not at any time exceed TWO MILLION DOLLARS ($2,000,000) (the "LOC
---
Committed Amount"), (ii) the sum of the aggregate amount of Revolving
----------------
Loans plus LOC Obligations shall not at any time exceed the aggregate
----
Revolving Committed Amount then in effect, (iii) all Letters of Credit
shall be denominated in U.S. Dollars and (iv) Letters of Credit shall
be issued for any lawful corporate purposes and may be issued as
standby letters of credit, including in connection with workers'
compensation and other insurance programs. Except as otherwise
expressly agreed upon by all the Lenders, no Letter of Credit shall
have an original expiry date more than twelve (12) months from the date
of issuance; provided, however, so long as no Default or Event of
-------- -------
Default has occurred and is continuing and subject to the other
36
terms and conditions to the issuance of Letters of Credit hereunder,
the expiry dates of Letters of Credit may be extended annually or
periodically from time to time on the request of the Borrower or by
operation of the terms of the applicable Letter of Credit to a date
not more than twelve (12) months from the date of extension;
provided, further, that no Letter of Credit, as originally issued or
-------- -------
as extended, shall have an expiry date extending beyond the Revolving
Commitment Termination Date. Each Letter of Credit shall comply with
the related LOC Documents. The issuance and expiry date of each
Letter of Credit shall be a Business Day. Any Letters of Credit
issued hereunder shall be in a minimum original face amount of
$100,000. There will be no more than five (5) Letters of Credit
outstanding at any time.
(b) Notice and Reports. The request for the issuance of a
------------------
Letter of Credit shall be submitted to the Issuing Lender at least five
(5) Business Days prior to the requested date of issuance. The Issuing
Lender will promptly upon request provide to the Administrative Agent
for dissemination to the Lenders a detailed report specifying the
Letters of Credit which are then issued and outstanding and any
activity with respect thereto which may have occurred since the date of
any prior report, and including therein, among other things, the
account party, the beneficiary, the face amount, expiry date as well as
any payments or expirations which may have occurred. The Issuing Lender
will further provide to the Administrative Agent promptly upon request
copies of the Letters of Credit. The Issuing Lender will provide to the
Administrative Agent promptly upon request a summary report of the
nature and extent of LOC Obligations then outstanding.
(c) Participations. Each Lender with a Revolving
--------------
Commitment (each a "LOC Participant") upon issuance of a Letter of
---------------
Credit shall be deemed to have purchased without recourse a risk
participation from the Issuing Lender in such Letter of Credit and
the obligations arising thereunder and any collateral relating
thereto, in each case in an amount equal to its LOC Commitment
Percentage of the obligations under such Letter of Credit and shall
absolutely, unconditionally and irrevocably assume, as primary
obligor and not as surety, and be obligated to pay to the Issuing
Lender therefor and discharge when due, its LOC Commitment Percentage
of the obligations arising under such Letter of Credit. Without
limiting the scope and nature of each Lender's participation in any
Letter of Credit, to the extent that the Issuing Lender has not been
reimbursed as required hereunder or under any LOC Document, each such
Lender shall pay to the Issuing Lender its LOC Commitment Percentage
of such unreimbursed drawing in same day funds on the day of
notification by the Issuing Lender of an unreimbursed drawing
pursuant to the provisions of subsection (d) hereof. The obligation
of each Lender to so reimburse the Issuing Lender shall be absolute
and unconditional and shall not be affected by the occurrence of a
Default, an Event of Default or any other occurrence or event. Any
such reimbursement shall not relieve or otherwise impair the
obligation of the Borrower to reimburse the Issuing Lender under any
Letter of Credit, together with interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any
-------------
Letter of Credit, the Issuing Lender will promptly notify the Borrower
and the Administrative Agent. The
37
Borrower shall reimburse the Issuing Lender on the day of drawing
under any Letter of Credit (either with the proceeds of a Revolving
Loan obtained hereunder or otherwise) in same day funds as provided
herein or in the LOC Documents. If the Borrower shall fail to
reimburse the Issuing Lender as provided herein, the unreimbursed
amount of such drawing shall bear interest at a per annum rate equal
to the ABR Default Rate. Unless the Borrower shall immediately notify
the Issuing Lender and the Administrative Agent of its intent to
otherwise reimburse the Issuing Lender, the Borrower shall be deemed
to have requested a Revolving Loan in the amount of the drawing as
provided in subsection (e) hereof, the proceeds of which will be used
to satisfy the reimbursement obligations. The Borrower's reimbursement
obligations hereunder shall be absolute and unconditional under all
circumstances irrespective of any rights of set-off, counterclaim or
defense to payment the Borrower may claim or have against the Issuing
Lender, the Administrative Agent, the Lenders, the beneficiary of the
Letter of Credit drawn upon or any other Person, including without
limitation any defense based on any failure of the Borrower to receive
consideration or the legality, validity, regularity or
unenforceability of the Letter of Credit. The Issuing Lender will
promptly notify the other Lenders of the amount of any unreimbursed
drawing and each Lender shall promptly pay to the Administrative Agent
for the account of the Issuing Lender, in Dollars and in immediately
available funds, the amount of such Lender's LOC Commitment Percentage
of such unreimbursed drawing. Such payment shall be made on the day
such notice is received by such Lender from the Issuing Lender if such
notice is received at or before 2:00 P.M. (Charlotte, North Carolina
time), otherwise such payment shall be made at or before 12:00 Noon
(Charlotte, North Carolina time) on the Business Day next succeeding
the day such notice is received. If such Lender does not pay such
amount to the Issuing Lender in full upon such request, such Lender
shall, on demand, pay to the Administrative Agent for the account of
the Issuing Lender interest on the unpaid amount during the period
from the date of such drawing until such Lender pays such amount to
the Issuing Lender in full at a rate per annum equal to, if paid
within two (2) Business Days of the date of drawing, the Federal Funds
Effective Rate and thereafter at a rate equal to the Alternate Base
Rate. Each Lender's obligation to make such payment to the Issuing
Lender, and the right of the Issuing Lender to receive the same, shall
be absolute and unconditional, shall not be affected by any
circumstance whatsoever and without regard to the termination of this
Credit Agreement or the Commitments hereunder, the existence of a
Default or Event of Default or the acceleration of the Credit Party
Obligations hereunder and shall be made without any offset, abatement,
withholding or reduction whatsoever.
(e) Repayment with Revolving Loans. On any day on which
------------------------------
the Borrower shall have requested, or been deemed to have requested, a
Revolving Loan to reimburse a drawing under a Letter of Credit, the
Administrative Agent shall give notice to the Lenders that have a
Revolving Commitment that a Revolving Loan has been requested or deemed
requested in connection with a drawing under a Letter of Credit, in
which case a Revolving Loan borrowing comprised entirely of Alternate
Base Rate Loans (each such borrowing, a "Mandatory Borrowing") shall be
-------------------
immediately made (without giving effect to any termination of the
Commitments pursuant to Section 7.2) pro rata based on each Lender's
--- ----
respective Revolving Commitment Percentage (determined before giving
effect
38
to any termination of the Commitments pursuant to Section 7.2) and the
proceeds thereof shall be paid directly to the Issuing Lender for
application to the respective LOC Obligations. Each Lender hereby
irrevocably agrees to make such Revolving Loans immediately upon any
such request or deemed request on account of each Mandatory Borrowing
in the amount and in the manner specified in the preceding sentence
and on the same such date notwithstanding (i) the amount of Mandatory
---------------
Borrowing may not comply with the minimum amount (or integral amount
in excess thereof) for borrowings of Revolving Loans otherwise
required hereunder, (ii) whether any conditions specified in Section
4.2 are then satisfied, (iii) whether a Default or an Event of Default
then exists, (iv) failure for any such request or deemed request for
Revolving Loan to be made by the time otherwise required in Section
2.1(b), (v) the date of such Mandatory Borrowing, or (vi) any
reduction in the Revolving Committed Amount after any such Letter of
Credit may have been drawn upon. In the event that any Mandatory
Borrowing cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement
of a proceeding under the Bankruptcy Code with respect to the
Borrower), then each such Lender hereby agrees that it shall forthwith
fund (as of the date the Mandatory Borrowing would otherwise have
occurred, but adjusted for any payments received from the Borrower on
or after such date and prior to such purchase) its Participation
Interests in the outstanding LOC Obligations; provided, further, that
-------- -------
in the event any Lender shall fail to fund its Participation Interest
on the day the Mandatory Borrowing would otherwise have occurred, then
the amount of such Lender's unfunded Participation Interest therein
shall bear interest payable by such Lender to the Issuing Lender upon
demand, at the rate equal to, if paid within two (2) Business Days of
such date, the Federal Funds Effective Rate, and thereafter at a rate
equal to the Alternate Base Rate.
(f) Modification, Extension. The issuance of any
-----------------------
supplement, modification, amendment, renewal, or extension to any
Letter of Credit shall, for purposes hereof, be treated in all
respects the same as the issuance of a new Letter of Credit hereunder.
(g) Uniform Customs and Practices. The Issuing Lender may
-----------------------------
have the Letters of Credit be subject to The Uniform Customs and
Practice for Documentary Credits, as published as of the date of issue
by the International Chamber of Commerce (the "UCP"), in which case the
---
UCP may be incorporated therein and deemed in all respects to be a part
thereof.
(h) Designation of Subsidiaries as Account Parties.
----------------------------------------------
Notwithstanding anything to the contrary set forth in this Agreement,
including without limitation Section 2.5(a), a Letter of Credit issued
hereunder may contain a statement to the effect that such Letter of
Credit is issued for the account of a Subsidiary of the Borrower,
provided that notwithstanding such statement, the Borrower shall be the
actual account party for all purposes of this Agreement for such Letter
of Credit and such statement shall not affect the Borrower's
reimbursement obligations hereunder with respect to such Letter of
Credit.
39
SECTION 2.6 FEES.
----
(a) Commitment Fee. In consideration of the Revolving
--------------
Commitments, the Borrower agrees to pay to the Administrative Agent for
the ratable benefit of the Lenders holding Revolving Commitments a
commitment fee (the "Commitment Fee") in an amount equal to the
--------------
Applicable Percentage per annum on the average daily unused amount of
the aggregate Revolving Committed Amount. For purposes of computation
of the Commitment Fee, LOC Obligations shall be considered usage. The
Commitment Fee shall be payable quarterly in arrears not later than
three (3) Business Days following the last day of each calendar quarter
for the prior calendar quarter.
(b) Letter of Credit Fees. In consideration of the LOC
---------------------
Commitments, the Borrower agrees to pay to the Issuing Lender a fee
(the "Letter of Credit Fee") equal to the Applicable Percentage per
--------------------
annum on the average daily maximum amount available to be drawn under
each Letter of Credit from the date of issuance to the date of
expiration. In addition to such Letter of Credit Fee, the Borrower
agrees to pay to the Issuing Lender, for its own account without
sharing by the other Lenders, an additional fronting fee (the "Fronting
--------
Fee") of one-eighth of one percent (1/8%) per annum on the average
---
daily maximum amount available to be drawn under each such Letter of
Credit issued by it. The Issuing Lender shall promptly pay over to the
Administrative Agent for the ratable benefit of the Lenders (including
the Issuing Lender) the Letter of Credit Fee. The Letter of Credit Fee
and the Fronting Fee shall each be payable quarterly in arrears not
later than three (3) Business Days following the last day of each
calendar quarter for the prior calendar quarter.
(c) Issuing Lender Fees. In addition to the Letter of
-------------------
Credit Fees payable pursuant to subsection (b) hereof, the Borrower
shall pay to the Issuing Lender for its own account without sharing by
the other Lenders the reasonable and customary charges from time to
time of the Issuing Lender with respect to the amendment, transfer,
administration, cancellation and conversion of, and drawings under,
such Letters of Credit (collectively, the "Issuing Lender Fees").
-------------------
(d) Administrative Fee. The Borrower agrees to pay to the
------------------
Administrative Agent the annual administrative fee as described in the
Agent Fee Letter (the "Administrative Fees").
-------------------
SECTION 2.7 COMMITMENT REDUCTIONS.
---------------------
(a) Voluntary Reductions. The Borrower shall have the
--------------------
right to terminate or permanently reduce the unused portion of the
Revolving Committed Amount at any time or from time to time upon not
less than five Business Days' prior written notice to the
Administrative Agent (which shall notify the Lenders thereof as soon as
practicable) of each such termination or reduction, which notice shall
specify the effective date thereof and the amount of any such reduction
which shall be in a minimum amount of $2,000,000 or a whole multiple of
$1,000,000 in excess thereof and shall be irrevocable and effective
40
upon receipt by the Administrative Agent; provided that no such
--------
reduction or termination shall be permitted if after giving effect
thereto, and to any prepayments of the Revolving Loans made on the
effective date thereof, the sum of the then outstanding aggregate
principal amount of the Revolving Loans plus LOC Obligations would
----
exceed the aggregate Revolving Committed Amount then in effect. Any
such reduction in the Revolving Committed Amount shall be applied to,
and serve to reduce, the Regularly Scheduled Reduction Amounts which
would otherwise be required under Section 2.7(b)(ii) hereof pro rata
as to such amounts.
(b) Mandatory Reductions. (i) On any date that the
--------------------
Revolving Loans are required to be prepaid pursuant to the terms of
Section 2.8(b) (ii) - (vi), the Revolving Committed Amount shall be
automatically permanently reduced by the amount of such required
prepayment and/or reduction. Any such reduction in the Revolving
Committed Amount shall be applied to, and serve to reduce, the
Regularly Scheduled Reduction Amounts which would otherwise be
required under Section 2.7(b)(ii) hereof pro rata as to such amounts.
(ii) The Revolving Committed Amount shall be
automatically permanently reduced by the following amounts on
the following dates (each a "Reduction Date"):
--------------
------------------------------- ----------------------------------- ------------------------------------
Amount of Revolving Committed Percentage of Revolving Committed
Reduction Dates Amount Reduction Amount Reduced
------------------------------- ----------------------------------- ------------------------------------
May 31, 2003 $625,000 2.50%
------------------------------- ----------------------------------- ------------------------------------
August 31, 2003 $625,000 2.50%
------------------------------- ----------------------------------- ------------------------------------
November 30, 2003 $625,000 2.50%
------------------------------- ----------------------------------- ------------------------------------
February 29, 2004 $625,000 2.50%
------------------------------- ----------------------------------- ------------------------------------
May 31, 2004 $937,500 3.75%
------------------------------- ----------------------------------- ------------------------------------
August 31, 2004 $937,500 3.75%
------------------------------- ----------------------------------- ------------------------------------
November 30, 2004 $937,500 3.75%
------------------------------- ----------------------------------- ------------------------------------
February 28, 2005 $937,500 3.75%
------------------------------- ----------------------------------- ------------------------------------
May 31, 2005 $937,500 3.75%
------------------------------- ----------------------------------- ------------------------------------
August 31, 2005 $937,500 3.75%
------------------------------- ----------------------------------- ------------------------------------
November 30, 2005 $937,500 3.75%
------------------------------- ----------------------------------- ------------------------------------
February 28, 2006 $937,500 3.75%
------------------------------- ----------------------------------- ------------------------------------
May 31, 2006 $1,250,000 5.00%
------------------------------- ----------------------------------- ------------------------------------
August 31, 2006 $1,250,000 5.00%
------------------------------- ----------------------------------- ------------------------------------
November 30, 2006 $1,250,000 5.00%
------------------------------- ----------------------------------- ------------------------------------
February 28, 2007 $1,250,000 5.00%
------------------------------- ----------------------------------- ------------------------------------
May 31, 2007 $2,500,000 10.00%
------------------------------- ----------------------------------- ------------------------------------
August 31, 2007 $2,500,000 10.00%
------------------------------- ----------------------------------- ------------------------------------
November 30, 2007 $2,500,000 10.00%
------------------------------- ----------------------------------- ------------------------------------
Revolving $2,500,000 10.00%
------------------------------- ----------------------------------- ------------------------------------
Commitment
Termination Date
------------------------------- ----------------------------------- ------------------------------------
41
The foregoing mandatory reduction amounts shall
hereinafter be referred to as the "Regularly Scheduled
-------------------
Reduction Amounts".
-----------------
(c) Maturity Date. The Revolving Commitment and the LOC
-------------
Commitment shall automatically terminate on the Revolving Commitment
Termination Date.
SECTION 2.8 PREPAYMENTS.
-----------
(a) Optional Prepayments. The Borrower shall have the
--------------------
right to prepay Loans in whole or in part from time to time; provided,
--------
however, that (i) each partial prepayment of LIBOR Loans shall be in a
-------
minimum principal amount of $2,000,000 and integral multiples of
$1,000,000 in excess thereof and (ii) each partial prepayment of
Alternate Base Rate Loans shall be in a minimum principal amount of
$1,000,000 and integral multiples of $500,000 in excess thereof. The
Borrower shall give five Business Days' irrevocable notice in the case
of LIBOR Rate Loans and one Business Day's irrevocable notice in the
case of Alternate Base Rate Loans, to the Administrative Agent (which
shall notify the Lenders thereof as soon as practicable). Subject to
the foregoing terms, amounts prepaid under this Section 2.8(a) shall
be applied first to Revolving Loans and then pro rata between the
Tranche A Term Loans and the Tranche B Term Loans (and within each
tranche of Term Loans, to the remaining principal amortization
payments with respect to such tranche of Term Loans on a pro rata
basis), in each case first to Alternate Base Rate Loans and then to
LIBOR Rate Loans in direct order of Interest Period maturities. All
prepayments under this Section 2.8(a) shall be subject to Section
2.18, but otherwise without premium or penalty. Interest on the
principal amount prepaid shall be due and payable on any date that a
prepayment is made hereunder through the date of prepayment. Amounts
prepaid on the Revolving Loans may be reborrowed in accordance with
the terms hereof. Amounts prepaid on the Term Loans may not be
reborrowed.
(b) Mandatory Prepayments.
---------------------
(i) Revolving Committed Amount. If at any time
--------------------------
after the Closing Date, the sum of the aggregate principal
amount of outstanding Revolving Loans plus LOC Obligations
shall exceed the aggregate Revolving Committed Amount then in
effect, the Borrower immediately shall prepay the Revolving
Loans and (after all Revolving Loans have been repaid) cash
collateralize the LOC Obligations, in an amount sufficient to
eliminate such excess.
42
(ii) Excess Cash Flow. Within ninety (90) days
----------------
after the end of each fiscal year (commencing with the fiscal
year ending December 31, 2003), the Borrower shall prepay the
Loans in an amount equal to (x) 50% of the Excess Cash Flow
earned during such prior fiscal year less (y) the amount of
any optional prepayments of the Term Loans or (to the extent
accompanied by a reduction in the Revolving Committed Amount)
the Revolving Loans during such prior fiscal year. Any
payments of Excess Cash Flow shall be applied as set forth in
clause (vii) below.
(iii) Asset Dispositions. Promptly following any
------------------
Asset Disposition, the Borrower shall prepay the Loans in an
aggregate amount equal to 100% of the Net Cash Proceeds
derived from such Asset Disposition (such prepayment to be
applied as set forth in clause (vii) below); provided,
--------
however, that such Net Cash Proceeds shall not be required to
-------
be so applied if (A) such Asset Disposition occurs on or after
January 1, 2003 and (B) the Borrower delivers to the
Administrative Agent a certificate stating that a Credit Party
intends to use such Net Cash Proceeds to acquire fixed or
capital assets in replacement of the disposed assets within
270 days of the receipt of such Net Cash Proceeds, it being
expressly agreed that any Net Cash Proceeds not so reinvested
shall be applied to repay the Loans immediately thereafter.
(iv) Debt Issuances. Immediately upon receipt by
--------------
any Credit Party of proceeds from any Debt Issuance, the
Borrower shall prepay the Loans in an aggregate amount equal
to 100% of the Net Cash Proceeds of such Debt Issuance to the
Lenders (such prepayment to be applied as set forth in clause
(vii) below).
(v) Issuances of Equity. Immediately upon
-------------------
receipt by a Credit Party of proceeds from any Equity
Issuance, the Borrower shall prepay the Loans in an aggregate
amount equal to 50% of the Net Cash Proceeds of such Equity
Issuance (such prepayment to be applied as set forth in clause
(vii) below).
(vi) Recovery Event. To the extent any Credit
--------------
Party receives cash proceeds in connection with a Recovery
Event which are not applied in accordance with Section
6.5(a)(ii), immediately following the 270th day occurring
after the receipt by such Credit Party of such cash proceeds,
the Borrower shall prepay the Loans in an aggregate amount
equal to 100% of such cash proceeds not so applied (such
prepayment to be applied as set forth in clause (vii) below).
(vii) Application of Mandatory Prepayments. All
------------------------------------
amounts required to be paid pursuant to this Section 2.8(b)
shall be applied as follows: (A) with respect to all amounts
prepaid pursuant to Section 2.8(b)(i), to Revolving Loans and
(after all Revolving Loans have been repaid) to a cash
collateral account in respect of LOC Obligations and (B) with
respect to all amounts prepaid pursuant to Sections 2.8(b)(ii)
through (vi), (1) first to the Term Loans (pro rata between
-----
the Tranche A Term Loans and the Tranche B Term Loans) to the
remaining
43
amortization payments in inverse order of maturity; provided,
however, promptly upon notification thereof, one or more
holders of the Tranche B Term Loan may decline to accept a
mandatory prepayment under Section 2.8(b)(ii) through (vi) to
the extent there are sufficient amounts under the Tranche A
Term Loans outstanding to be paid with such prepayment, in
which case, such declined payments shall be allocated pro
rata among the Tranche A Term Loans and (2) second to the
------
Revolving Loans (with a corresponding permanent reduction in
the Revolving Committed Amount) and (after all Revolving
Loans have been repaid) to a cash collateral account in
respect of LOC Obligations. Within the parameters of the
applications set forth above, prepayments shall be applied
first to Alternate Base Rate Loans and then to LIBOR Rate
Loans in direct order of Interest Period maturities. All
prepayments under this Section 2.8(b) shall be subject to
Section 2.18 and be accompanied by interest on the principal
amount prepaid through the date of prepayment.
SECTION 2.9 MINIMUM PRINCIPAL AMOUNT OF LOANS AND TRANCHES;
-----------------------------------------------
LENDING OFFICES.
---------------
(a) Minimum Amounts of Loans. Each Loan which is made as
------------------------
an Alternate Base Rate Loan shall be in a minimum aggregate amount of
$1,000,000 and integral multiples of $500,000 in excess thereof (or,
with respect to Revolving Loans, the remaining amount of the Revolving
Committed Amount, if less). Each Loan which is made as a LIBOR Rate
Loan shall be in a minimum aggregate amount of $2,000,000 and integral
multiples of $1,000,000 in excess thereof (or, with respect to
Revolving Loans, the remaining amount of the Revolving Committed
Amount, if less).
(b) Minimum Amounts of Tranches. All payments and
---------------------------
prepayments (other than mandatory prepayments) in respect of Revolving
Loans and Term Loans shall be in such amounts and be made pursuant to
such elections so that after giving effect thereto the aggregate
principal amount of the Revolving Loans and Term Loans comprising any
Tranche shall be (i) with respect to Alternate Base Rate Loans,
$1,000,000 or a whole multiple of $500,000 in excess thereof, and (ii)
with respect to LIBOR Rate Loans, $2,000,000 or a whole multiple of
$1,000,000 in excess thereof.
(c) Lending Offices. LIBOR Rate Loans shall be made by
---------------
each Lender at its LIBOR Lending Office and Alternate Base Rate Loans
at its Domestic Lending Office.
SECTION 2.10 DEFAULT RATE AND PAYMENT DATES.
------------------------------
(a) If all or a portion of the principal amount of any
Loan which is a LIBOR Rate Loan shall not be paid when due or continued
as a LIBOR Rate Loan in accordance with the provisions of Section 2.11
(whether at the stated maturity, by acceleration or otherwise), such
overdue principal amount of such Loan shall be converted to an
Alternate Base Rate Loan at the end of the Interest Period applicable
thereto.
44
(b) (i) If all or a portion of the principal amount of
any LIBOR Rate Loan shall not be paid when due, such overdue amount
shall bear interest at a rate per annum which is equal to the rate that
would otherwise be applicable thereto plus 2%, until the end of the
----
Interest Period applicable thereto, and thereafter at a rate per annum
which is equal to the Alternate Base Rate plus the sum of the
----
Applicable Percentage then in effect for Alternate Base Rate Loans and
2% (the "ABR Default Rate") or (ii) if any interest payable on the
----------------
principal amount of any Loan or any fee or other amount, including
principal of Alternate Base Rate Loans, payable hereunder shall not be
paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum
which is equal to the ABR Default Rate, in each case from the date of
such non-payment until such amount is paid in full (after as well as
before judgment). Upon the occurrence, and during the continuance, of
any other Event of Default hereunder, the principal of and, to the
extent permitted by law, interest on the Loans and any other amounts
owing hereunder or under the other Credit Documents shall bear
interest, payable on demand, at a per annum rate which is (A) in the
case of principal, the rate that would otherwise be applicable thereto
plus 2% or (B) in the case of interest, fees or other amounts, the ABR
----
Default Rate (after as well as before judgment).
(c) Interest on each Loan shall be payable in arrears on
each Interest Payment Date, provided that interest accruing pursuant to
--------
paragraph (b) of this Section 2.10 shall be payable from time to time
on demand.
SECTION 2.11 CONVERSION OPTIONS.
------------------
(a) The Borrower may, in the case of Revolving Loans and
Term Loans, elect from time to time to convert Alternate Base Rate
Loans to LIBOR Rate Loans by giving the Administrative Agent at least
three Business Days' prior irrevocable written notice of such
election. In addition, the Borrower may elect from time to time to
convert LIBOR Rate Loans to Alternate Base Rate Loans by giving the
Administrative Agent irrevocable written notice by 11:00 a.m.
(Charlotte, North Carolina time) one Business Date prior to the
proposed date of conversion. A form of Notice of Conversion/Extension
is attached as Schedule 2.11. If the date upon which an Alternate Base
-------------
Rate Loan is to be converted to a LIBOR Rate Loan is not a Business
Day, then such conversion shall be made on the next succeeding
Business Day. All or any part of outstanding Alternate Base Rate Loans
may be converted as provided herein, provided that (i) no Loan may be
--------
converted into a LIBOR Rate Loan when any Default or Event of Default
has occurred and is continuing and (ii) partial conversions shall be
in an aggregate principal amount of $2,000,000 or a whole multiple of
$1,000,000 in excess thereof. LIBOR Rate Loans may only be converted
to Alternate Base Rate Loans on the last day of the applicable
Interest Period. If the date upon which a LIBOR Rate Loan is to be
converted to an Alternate Base Rate Loan is not a Business Day, then
such conversion shall be made on the next succeeding Business Day and
during the period from such last day of an Interest Period to such
succeeding Business Day such Loan shall bear interest as if it were an
Alternate Base Rate Loan.
45
(b) Any LIBOR Rate Loans may be continued as such upon
the expiration of an Interest Period with respect thereto by
compliance by the Borrower with the notice provisions contained in
Section 2.11(a); provided, that no LIBOR Rate Loan may be continued as
--------
such when any Default or Event of Default has occurred and is
continuing, in which case such Loan shall be automatically converted
to an Alternate Base Rate Loan at the end of the applicable Interest
Period with respect thereto. If the Borrower shall fail to give timely
notice of an election to continue a LIBOR Rate Loan, or the
continuation of LIBOR Rate Loans is not permitted hereunder, such
LIBOR Rate Loans shall be automatically converted to Alternate Base
Rate Loans at the end of the applicable Interest Period with respect
thereto.
SECTION 2.12 COMPUTATION OF INTEREST AND FEES.
--------------------------------
(a) Interest payable hereunder with respect to any
Alternate Base Rate Loan based on the Prime Rate shall be calculated
on the basis of a year of 365 days (or 366 days, as applicable) for
the actual days elapsed. All other interest and all fees and other
amounts payable hereunder shall be calculated on the basis of a 360
day year for the actual days elapsed. The Administrative Agent shall
as soon as practicable notify the Borrower and the Lenders of each
determination of a LIBOR Rate on the Business Day of the determination
thereof. Any change in the interest rate on a Loan resulting from a
change in the Alternate Base Rate shall become effective as of the
opening of business on the day on which such change in the Alternate
Base Rate shall become effective. The Administrative Agent shall as
soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Credit Agreement
shall be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the
request of the Borrower, deliver to the Borrower a statement showing
the computations used by the Administrative Agent in determining any
interest rate.
(c) It is the intent of the Lenders and the Credit
Parties to conform to and contract in strict compliance with
applicable usury law from time to time in effect. All agreements
between the Lenders and the Credit Parties are hereby limited by the
provisions of this paragraph which shall override and control all such
agreements, whether now existing or hereafter arising and whether
written or oral. In no way, nor in any event or contingency (including
but not limited to prepayment or acceleration of the maturity of any
Obligation), shall the interest taken, reserved, contracted for,
charged, or received under this Credit Agreement, under the Notes or
otherwise, exceed the maximum nonusurious amount permissible under
applicable law. If, from any possible construction of any of the
Credit Documents or any other document, interest would otherwise be
payable in excess of the maximum nonusurious amount, any such
construction shall be subject to the provisions of this paragraph and
such interest shall be automatically reduced to the maximum
nonusurious amount permitted under applicable law, without the
necessity of execution of any amendment or new document. If any
46
Lender shall ever receive anything of value which is characterized as
interest on the Loans under applicable law and which would, apart from
this provision, be in excess of the maximum nonusurious amount, an
amount equal to the amount which would have been excessive interest
shall, without penalty, be applied to the reduction of the principal
amount owing on the Loans and not to the payment of interest, or
refunded to the Borrower or the other payor thereof if and to the
extent such amount which would have been excessive exceeds such unpaid
principal amount of the Loans. The right to demand payment of the
Loans or any other Indebtedness evidenced by any of the Credit
Documents does not include the right to receive any interest which has
not otherwise accrued on the date of such demand, and the Lenders do
not intend to charge or receive any unearned interest in the event of
such demand. All interest paid or agreed to be paid to the Lenders
with respect to the Loans shall, to the extent permitted by applicable
law, be amortized, prorated, allocated, and spread throughout the full
stated term (including any renewal or extension) of the Loans so that
the amount of interest on account of such indebtedness does not exceed
the maximum nonusurious amount permitted by applicable law.
SECTION 2.13 PRO RATA TREATMENT AND PAYMENTS.
-------------------------------
(a) Allocation of Payments Before Event of Default. Each
----------------------------------------------
borrowing of Revolving Loans and any reduction of the Revolving
Commitments shall be made pro rata according to the respective
--- ----
Revolving Commitment Percentages of the Lenders. Each payment under
this Credit Agreement or any Note shall be applied, first, to any fees
-----
then due and owing by the Borrower pursuant to Section 2.6, second, to
------
interest then due and owing hereunder and under the Notes and, third,
-----
to principal then due and owing hereunder and under the Notes. Each
payment on account of any fees pursuant to Section 2.6 shall be made
pro rata in accordance with the respective amounts due and owing
--- ----
(except as to the Fronting Fees, the Issuing Lender Fees and the
Administrative Fees). Each payment (other than prepayments) by the
Borrower on account of principal of and interest on the Revolving Loans
and on the Term Loans shall be applied to such Loans as directed by the
Borrower or otherwise applied in accordance with the terms of Section
2.8(a) hereof. Each optional prepayment on account of principal of the
Loans shall be applied in accordance with Section 2.8(a); provided,
--------
that prepayments made pursuant to Section 2.16 shall be applied in
accordance with such section. Each mandatory prepayment on account of
principal of the Loans shall be applied in accordance with Section
2.8(b). All payments (including prepayments) to be made by the Borrower
on account of principal, interest and fees shall be made without
defense, set-off or counterclaim (except as provided in Section
2.19(b)) and shall be made to the Administrative Agent for the account
of the Lenders at the Administrative Agent's office specified on
Section 9.2 in Dollars and in immediately available funds not later
than 1:00 P.M. (Charlotte, North Carolina time) on the date when due.
The Administrative Agent shall distribute such payments to the Lenders
entitled thereto promptly upon receipt in like funds as received. If
any payment hereunder (other than payments on the LIBOR Rate Loans)
becomes due and payable on a day other than a Business Day, such
payment shall be extended to the next succeeding Business Day, and,
with respect to payments of
47
principal, interest thereon shall be payable at the then applicable
rate during such extension. If any payment on a LIBOR Rate Loan
becomes due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day
unless the result of such extension would be to extend such payment
into another calendar month, in which event such payment shall be made
on the immediately preceding Business Day.
(b) Allocation of Payments After Event of Default.
---------------------------------------------
Notwithstanding any other provisions of this Credit Agreement to the
contrary, after the occurrence and during the continuance of an Event
of Default, all amounts collected or received by the Administrative
Agent or any Lender on account of the Credit Party Obligations or any
other amounts outstanding under any of the Credit Documents or in
respect of the Collateral shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket
costs and expenses (including without limitation reasonable
attorneys' fees) of the Administrative Agent in connection
with enforcing the rights of the Lenders under the Credit
Documents and any protective advances made by the
Administrative Agent with respect to the Collateral under or
pursuant to the terms of the Security Documents;
SECOND, to payment of any fees owed to the
Administrative Agent;
THIRD, to the payment of all reasonable out-of-pocket
costs and expenses (including without limitation, reasonable
attorneys' and consultants' fees) of each of the Lenders in
connection with enforcing its rights under the Credit
Documents or otherwise with respect to the Credit Party
Obligations owing to such Lender;
FOURTH, to the payment of all of the Credit Party
Obligations consisting of accrued fees and interest, and
including with respect to any Hedging Agreement between any
Credit Party and any Lender, or any Affiliate of a Lender, to
the extent such Hedging Agreement is permitted by Section
6.1(d), any fees, premiums and scheduled periodic payments due
under such Hedging Agreement and any interest accrued thereon;
FIFTH, to the payment of the outstanding principal
amount of the Credit Party Obligations and the payment or cash
collateralization of the outstanding LOC Obligations, and
including with respect to any Hedging Agreement between any
Credit Party and any Lender, or any Affiliate of a Lender, to
the extent such Hedging Agreement is permitted by Section
6.1(d), any breakage, termination or other payments due under
such Hedging Agreement and any interest accrued thereon;
SIXTH, to all other Credit Party Obligations and
other obligations which shall have become due and payable
under the Credit Documents or otherwise and not repaid
pursuant to clauses "FIRST" through "FIFTH" above; and
48
SEVENTH, to the payment of the surplus, if any, to
whomever may be lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in
the numerical order provided until exhausted prior to application to
the next succeeding category; (ii) each of the Lenders shall receive an
amount equal to its pro rata share (based on the proportion that the
then outstanding Loans, LOC Obligations and obligations outstanding
under the Hedge Agreements (if any) permitted by Section 6.1(d) held by
such Lender (and its Affiliates in the case of Hedge Agreement
obligations) bears to the aggregate then outstanding Loans, LOC
Obligations and obligations outstanding under the Hedge Agreements
between any Credit Party and any Lender or any Affiliate of a Lender
that are permitted by Section 6.1(d)) of amounts available to be
applied pursuant to clauses "FOURTH" and "FIFTH" above; and (iii) to
the extent that any amounts available for distribution pursuant to
clause "FIFTH" above are attributable to the issued but undrawn amount
of outstanding Letters of Credit, such amounts shall be held by the
Administrative Agent in a cash collateral account and applied (A)
first, to reimburse the Issuing Lender from time to time for any
drawings under such Letters of Credit and (B) then, following the
expiration of all Letters of Credit, to all other obligations of the
types described in clauses "FIFTH" and "SIXTH" above in the manner
provided in this Section 2.13(b).
SECTION 2.14 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT.
------------------------------------------------
(a) Unless the Administrative Agent shall have been
notified in writing by a Lender prior to the date a Loan is to be made
by such Lender (which notice shall be effective upon receipt) that
such Lender does not intend to make the proceeds of such Loan
available to the Administrative Agent, the Administrative Agent may
assume that such Lender has made such proceeds available to the
Administrative Agent on such date, and the Administrative Agent may in
reliance upon such assumption (but shall not be required to) make
available to the Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the
Administrative Agent, the Administrative Agent shall be able to
recover such corresponding amount from such Lender. If such Lender
does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent will
promptly notify the Borrower, and the Borrower shall immediately pay
such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover from the Lender
or the Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount
was made available by the Administrative Agent to the Borrower to the
date such corresponding amount is recovered by the Administrative
Agent at a per annum rate equal to (i) from the Borrower at the
applicable rate for the applicable borrowing pursuant to the Notice of
Borrowing and (ii) from a Lender at the Federal Funds Effective Rate.
49
(b) Unless the Administrative Agent shall have been
notified in writing by the Borrower, prior to the date on which any
payment is due from it hereunder (which notice shall be effective upon
receipt) that the Borrower does not intend to make such payment, the
Administrative Agent may assume that such Borrower has made such
payment when due, and the Administrative Agent may in reliance upon
such assumption (but shall not be required to) make available to each
Lender on such payment date an amount equal to the portion of such
assumed payment to which such Lender is entitled hereunder, and if the
Borrower has not in fact made such payment to the Administrative
Agent, such Lender shall, on demand, repay to the Administrative Agent
the amount made available to such Lender. If such amount is repaid to
the Administrative Agent on a date after the date such amount was made
available to such Lender, such Lender shall pay to the Administrative
Agent on demand interest on such amount in respect of each day from
the date such amount was made available by the Administrative Agent to
such Lender to the date such amount is recovered by the Administrative
Agent at a per annum rate equal to the Federal Funds Effective Rate.
(c) A certificate of the Administrative Agent submitted
to the Borrower or any Lender with respect to any amount owing under
this Section 2.14 shall be conclusive in the absence of manifest error.
SECTION 2.15 INABILITY TO DETERMINE INTEREST RATE.
------------------------------------
Notwithstanding any other provision of this Credit Agreement, if (i)
the Administrative Agent shall reasonably determine (which determination shall
be conclusive and binding absent manifest error) that, by reason of
circumstances affecting the relevant market, reasonable and adequate means do
not exist for ascertaining LIBOR for such Interest Period, or (ii) the Required
Lenders shall reasonably determine (which determination shall be conclusive and
binding absent manifest error) that the LIBOR Rate does not adequately and
fairly reflect the cost to such Lenders of funding LIBOR Rate Loans that the
Borrower has requested be outstanding as a LIBOR Tranche during such Interest
Period, the Administrative Agent shall forthwith give telephone notice of such
determination, confirmed in writing, to the Borrower, and the Lenders at least
two Business Days prior to the first day of such Interest Period. Unless the
Borrower shall have notified the Administrative Agent upon receipt of such
telephone notice that it wishes to rescind or modify its request regarding such
LIBOR Rate Loans, any Loans that were requested to be made as LIBOR Rate Loans
shall be made as Alternate Base Rate Loans and any Loans that were requested to
be converted into or continued as LIBOR Rate Loans shall remain as or be
converted into Alternate Base Rate Loans. Until any such notice has been
withdrawn by the Administrative Agent, no further Loans shall be made as,
continued as, or converted into, LIBOR Rate Loans for the Interest Periods so
affected.
SECTION 2.16 ILLEGALITY.
----------
Notwithstanding any other provision of this Credit Agreement, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof by the relevant Governmental Authority to any Lender shall
make it unlawful for such Lender or its LIBOR
50
Lending Office to make or maintain LIBOR Rate Loans as contemplated by this
Credit Agreement or to obtain in the interbank eurodollar market through its
LIBOR Lending Office the funds with which to make such Loans, (a) such Lender
shall promptly notify the Administrative Agent and the Borrower thereof, (b)
the commitment of such Lender hereunder to make LIBOR Rate Loans or continue
LIBOR Rate Loans as such shall forthwith be suspended until the Administrative
Agent shall give notice that the condition or situation which gave rise to the
suspension shall no longer exist, and (c) such Lender's Loans then outstanding
as LIBOR Rate Loans, if any, shall be converted on the last day of the Interest
Period for such Loans or within such earlier period as required by law to
Alternate Base Rate Loans. The Borrower hereby agrees promptly to pay any
Lender, upon its demand, any additional amounts necessary to compensate such
Lender for actual and direct costs (but not including anticipated profits)
reasonably incurred by such Lender in making any repayment in accordance with
this Section including, but not limited to, any interest or fees payable by
such Lender to lenders of funds obtained by it in order to make or maintain its
LIBOR Rate Loans hereunder. A certificate as to any additional amounts payable
pursuant to this Section submitted by such Lender, through the Administrative
Agent, to the Borrower shall be conclusive in the absence of manifest error.
Each Lender agrees to use reasonable efforts (including reasonable efforts to
change its LIBOR Lending Office) to avoid or to minimize any amounts which may
otherwise be payable pursuant to this Section; provided, however, that such
-------- -------
efforts shall not cause the imposition on such Lender of any additional costs
or legal or regulatory burdens deemed by such Lender in its sole discretion to
be material.
SECTION 2.17 REQUIREMENTS OF LAW.
-------------------
(a) If the adoption of or any change in any Requirement
of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:
(i) shall subject such Lender to any tax of any kind
whatsoever with respect to any Letter of Credit, any
participation therein or any application relating thereto, any
LIBOR Rate Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for changes
in the rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar
requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by,
any office of such Lender which is not otherwise included in
the determination of the LIBOR Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such
Lender of making or maintaining LIBOR Rate Loans or the Letters of
Credit or the participations therein or to reduce any amount receivable
hereunder or under any Note, then, in any such case, the
51
Borrower shall promptly pay such Lender, upon its demand, any
additional amounts necessary to compensate such Lender for such
additional cost or reduced amount receivable which such Lender
reasonably deems to be material as determined by such Lender with
respect to its LIBOR Rate Loans or Letters of Credit. A certificate
as to any additional amounts payable pursuant to this Section
submitted by such Lender, through the Administrative Agent, to the
Borrower shall be conclusive in the absence of manifest error. Each
Lender agrees to use reasonable efforts (including reasonable efforts
to change its Domestic Lending Office or LIBOR Lending Office, as the
case may be) to avoid or to minimize any amounts which might
otherwise be payable pursuant to this paragraph of this Section;
provided, however, that such efforts shall not cause the imposition
-------- -------
on such Lender of any additional costs or legal or regulatory burdens
deemed by such Lender to be material.
(b) If any Lender shall have reasonably determined that the
adoption of or any change in any Requirement of Law regarding capital
adequacy or in the interpretation or application thereof or compliance
by such Lender or any corporation controlling such Lender with any
request or directive regarding capital adequacy (whether or not having
the force of law) from any central bank or Governmental Authority made
subsequent to the date hereof does or shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which
such Lender or such corporation could have achieved but for such
adoption, change or compliance (taking into consideration such Lender's
or such corporation's policies with respect to capital adequacy) by an
amount reasonably deemed by such Lender to be material, then from time
to time, within fifteen (15) days after demand by such Lender, the
Borrower shall pay to such Lender such additional amount as shall be
certified by such Lender as being required to compensate it for such
reduction. Such a certificate as to any additional amounts payable
under this Section submitted by a Lender (which certificate shall
include a description of the basis for the computation), through the
Administrative Agent, to the Borrower shall be conclusive absent
manifest error.
(c) The agreements in this Section 2.17 shall survive the
termination of this Credit Agreement and payment of the Notes and all
other amounts payable hereunder.
Section 2.18 Indemnity.
---------
The Borrower hereby agrees to indemnify each Lender and to hold such
Lender harmless from any funding loss or expense which such Lender may sustain
or incur as a consequence of (a) the failure by the Borrower to pay the
principal amount of or interest on any Loan by such Lender in accordance with
the terms hereof, (b) the failure of the Borrower to accept a borrowing after
the Borrower has given a notice in accordance with the terms hereof, (c) the
failure of the Borrower to make any prepayment after the Borrower has given a
notice in accordance with the terms hereof, and/or (d) the making by the
Borrower of a prepayment of a Loan, or the conversion thereof, on a day which
is not the last day of the Interest Period with respect thereto, in each case
including, but not limited to, any such loss or expense arising from interest
or fees
52
payable by such Lender to lenders of funds obtained by it in order to maintain
its Loans hereunder. A certificate as to any additional amounts payable
pursuant to this Section submitted by any Lender, through the Administrative
Agent, to the Borrower (which certificate must be delivered to the
Administrative Agent within thirty days following such default, prepayment or
conversion) shall be conclusive in the absence of manifest error. The
agreements in this Section shall survive termination of this Credit Agreement
and payment of the Notes and all other amounts payable hereunder.
SECTION 2.19 TAXES.
-----
(a) All payments made by the Borrower hereunder or under any
Note will be, except as provided in Section 2.19(b), made free and
clear of, and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other
charges of whatever nature now or hereafter imposed by any Governmental
Authority or by any political subdivision or taxing authority thereof
or therein with respect to such payments (but excluding any tax imposed
on or measured by the net income or profits of a Lender pursuant to the
laws of the jurisdiction in which it is organized or the jurisdiction
in which the principal office or applicable lending office of such
Lender is located or any subdivision thereof or therein) and all
interest, penalties or similar liabilities with respect thereto (all
such non-excluded taxes, levies, imposts, duties, fees, assessments or
other charges being referred to collectively as "Taxes"). If any Taxes
-----
are so levied or imposed, the Borrower agrees to pay the full amount of
such Taxes, and such additional amounts as may be necessary so that
every payment of all amounts due under this Credit Agreement or under
any Note, after withholding or deduction for or on account of any
Taxes, will not be less than the amount provided for herein or in such
Note. The Borrower will furnish to the Administrative Agent as soon as
practicable after the date the payment of any Taxes is due pursuant to
applicable law certified copies (to the extent reasonably available and
required by law) of tax receipts evidencing such payment by the
Borrower. The Borrower agrees to indemnify and hold harmless each
Lender, and reimburse such Lender upon its written request, for the
amount of any Taxes so levied or imposed and paid by such Lender.
(b) Each Lender that is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) agrees to deliver
to the Borrower and the Administrative Agent on or prior to the Closing
Date, or in the case of a Lender that is an assignee or transferee of
an interest under this Credit Agreement pursuant to Section 9.6(d)
(unless the respective Lender was already a Lender hereunder
immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Lender, (i) if the Lender is a "bank"
within the meaning of Section 881(c)(3)(A) of the Code, two accurate
and complete original signed copies of Internal Revenue Service Form
4224 or 1001 (or successor forms) certifying such Lender's entitlement
to a complete exemption from United States withholding tax with respect
to payments to be made under this Credit Agreement and under any Note,
or (ii) if the Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code, either Internal Revenue Service Form 1001 or
4224 as set forth in clause (i) above, or (x) a certificate in
substantially the form of Schedule 2.19
-------------
53
(any such certificate, a "2.19 Certificate") and (y) two accurate and
----------------
complete original signed copies of Internal Revenue Service Form W-8
(or successor form) certifying such Lender's entitlement to an
exemption from United States withholding tax with respect to payments
of interest to be made under this Credit Agreement and under any
Note. In addition, each Lender agrees that it will deliver upon the
Borrower's request updated versions of the foregoing, as applicable,
whenever the previous certification has become obsolete or inaccurate
in any material respect, together with such other forms as may be
required in order to confirm or establish the entitlement of such
Lender to a continued exemption from or reduction in United States
withholding tax with respect to payments under this Credit Agreement
and any Note. Notwithstanding anything to the contrary contained in
Section 2.19(a), but subject to the immediately succeeding sentence,
(x) the Borrower shall be entitled, to the extent it is required to
do so by law, to deduct or withhold Taxes imposed by the United
States (or any political subdivision or taxing authority thereof or
therein) from interest, fees or other amounts payable hereunder for
the account of any Lender which is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code) for U.S.
federal income tax purposes to the extent that such Lender has not
provided to the Borrower U.S. Internal Revenue Service Forms that
establish a complete exemption from such deduction or withholding and
(y) the Borrower shall not be obligated pursuant to Section 2.19(a)
hereof to gross-up payments to be made to a Lender in respect of
Taxes imposed by the United States if (I) such Lender has not
provided to the Borrower the Internal Revenue Service Forms required
to be provided to the Borrower pursuant to this Section 2.19(b) or
(II) in the case of a payment, other than interest, to a Lender
described in clause (ii) above, to the extent that such Forms do not
establish a complete exemption from withholding of such Taxes.
Notwithstanding anything to the contrary contained in the preceding
sentence or elsewhere in this Section 2.19, the Borrower agrees to
pay additional amounts and to indemnify each Lender in the manner set
forth in Section 2.19(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in respect of
any amounts deducted or withheld by it as described in the
immediately preceding sentence as a result of any changes after the
Closing Date in any applicable law, treaty, governmental rule,
regulation, guideline or order, or in the interpretation thereof,
relating to the deducting or withholding of Taxes.
(c) Each Lender agrees to use reasonable efforts (including
reasonable efforts to change its Domestic Lending Office or LIBOR
Lending Office, as the case may be) to avoid or to minimize any amounts
which might otherwise be payable pursuant to this Section; provided,
--------
however, that such efforts shall not cause the imposition on such
-------
Lender of any additional costs or legal or regulatory burdens deemed by
such Lender in its sole discretion to be material.
(d) If the Borrower pays any additional amount pursuant to
this Section 2.19 with respect to a Lender, such Lender shall use
reasonable efforts to obtain a refund of tax or credit against its tax
liabilities on account of such payment; provided that such Lender shall
--------
have no obligation to use such reasonable efforts if either (i) it is
in an excess foreign tax credit position or (ii) it believes in good
faith, in its sole discretion, that claiming a refund or credit would
cause adverse tax consequences to it. In the event that
54
such Lender receives such a refund or credit, such Lender shall pay
to the Borrower an amount that such Lender reasonably determines is
equal to the net tax benefit obtained by such Lender as a result of
such payment by the Borrower. In the event that no refund or credit
is obtained with respect to the Borrower's payments to such Lender
pursuant to this Section 2.19, then such Lender shall upon request
provide a certification that such Lender has not received a refund or
credit for such payments. Nothing contained in this Section 2.19
shall require a Lender to disclose or detail the basis of its
calculation of the amount of any tax benefit or any other amount or
the basis of its determination referred to in the proviso to the
first sentence of this Section 2.19 to the Borrower or any other
party.
(e) The agreements in this Section 2.19 shall survive the
termination of this Credit Agreement and the payment of the Notes and
all other amounts payable hereunder.
SECTION 2.20 INDEMNIFICATION; NATURE OF ISSUING LENDER'S DUTIES.
--------------------------------------------------
(a) In addition to its other obligations under Section 2.5,
the Borrower hereby agrees to protect, indemnify, pay and save the
Issuing Lender and each LOC Participant harmless from and against any
and all claims, demands, liabilities, damages, losses, costs, charges
and expenses (including reasonable attorneys' fees) that the Issuing
Lender or such LOC Participant may incur or be subject to as a
consequence, direct or indirect, of (i) the issuance of any Letter of
Credit or (ii) the failure of the Issuing Lender to honor a drawing
under a Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto
government or governmental authority (all such acts or omissions,
herein called "Government Acts").
---------------
(b) As between the Borrower and the Issuing Lender and each
LOC Participant, the Borrower shall assume all risks of the acts,
omissions or misuse of any Letter of Credit by the beneficiary thereof.
Neither the Issuing Lender nor any LOC Participant shall be
responsible: (i) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any Letter of
Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, that may
prove to be invalid or ineffective for any reason; (iii) for failure of
the beneficiary of a Letter of Credit to comply fully with conditions
required in order to draw upon a Letter of Credit (unless the Issuing
Lender or any LOC Participant makes a payment under such Letter of
Credit against presentation of a draft or any accompanying document
that does not substantially comply with the conditions required in
order to draw upon such Letter of Credit); (iv) for errors, omissions,
interruptions or delays in transmission or delivery of any messages, by
mail, cable, telegraph, telex or otherwise, whether or not they be in
cipher; (v) for errors in interpretation of technical terms; (vi) for
any loss or delay in the transmission or otherwise of any document
required in order to make a drawing under a Letter of Credit or of the
proceeds thereof; and (vii) for any consequences arising from causes
beyond the control of the Issuing Lender or any LOC
55
Participant, including, without limitation, any Government Acts. None
of the above shall affect, impair, or prevent the vesting of the
Issuing Lender's rights or powers hereunder.
(c) In furtherance and extension and not in limitation of
the specific provisions hereinabove set forth, any action taken or
omitted by the Issuing Lender or any LOC Participant, under or in
connection with any Letter of Credit or the related certificates, if
taken or omitted in the absence of gross negligence or willful
misconduct, shall not put such Issuing Lender or such LOC Participant
under any resulting liability to the Borrower. It is the intention of
the parties that this Credit Agreement shall be construed and applied
to protect and indemnify the Issuing Lender and each LOC Participant
against any and all risks involved in the issuance of the Letters of
Credit, all of which risks are hereby assumed by the Borrower,
including, without limitation, any and all risks of the acts or
omissions, whether rightful or wrongful, of any Government Authority.
The Issuing Lender and the LOC Participants shall not, in any way, be
liable for any failure by the Issuing Lender or anyone else to pay
any drawing under any Letter of Credit as a result of any Government
Acts or any other cause beyond the control of the Issuing Lender and
the LOC Participants.
(d) Nothing in this Section 2.20 is intended to limit the
reimbursement obligation of the Borrower contained in Section 2.5(d)
hereof. The obligations of the Borrower under this Section 2.20 shall
survive the termination of this Credit Agreement. No act or omissions
of any current or prior beneficiary of a Letter of Credit shall in any
way affect or impair the rights of the Issuing Lender and the LOC
Participants to enforce any right, power or benefit under this Credit
Agreement.
(e) Notwithstanding anything to the contrary contained in
this Section 2.20, the Borrower shall have no obligation to indemnify
the Issuing Lender or any LOC Participant in respect of any liability
incurred by the Issuing Lender or such LOC Participant arising out of
the gross negligence or willful misconduct of the Issuing Lender
(including action not taken by the Issuing Lender or such LOC
Participant), as determined by a court of competent jurisdiction or
pursuant to arbitration.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Credit Agreement and to make
the Extensions of Credit herein provided for, each of the Credit Parties hereby
represents and warrants to the Administrative Agent and to each Lender that:
SECTION 3.1 FINANCIAL CONDITION.
-------------------
(a) (i) The audited Consolidated financial statements of the
Parent and its Subsidiaries for the fiscal year ended December 31,
2000, together with the related
56
Consolidated statements of income or operations, equity and cash
flows for the fiscal year ended on such dates and (ii) the unaudited
Consolidated and consolidating balance sheet of the Borrower's
television and radio operations for the month ended December 31,
2001, together with the related Consolidated statements of income or
operations for the 12 months ended December 31, 2001:
(A) were prepared in accordance with GAAP (to the
extent applicable) consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein;
(B) fairly present the financial condition of the
Borrower and its Subsidiaries as of the date thereof (subject,
in the case of the unaudited financial statements, to normal
year-end adjustments) and results of operations for the period
covered thereby; and
(C) show all indebtedness and other liabilities,
direct or contingent, of the Borrower and its Subsidiaries as
of the date thereof, including liabilities for taxes,
commitments, and as to the audited Consolidated financial
statements, contingent obligations.
(b) The eight-year projections of the Borrower and its
Subsidiaries have been prepared in good faith based upon reasonable
assumptions.
SECTION 3.2 NO CHANGE.
----------
Since December 31, 2000, there has been no development or event which
has had or could reasonably be expected to have a Material Adverse Effect.
SECTION 3.3 CORPORATE EXISTENCE.
-------------------
Each of the Credit Parties (a) is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization, (b) has
the requisite power and authority and the legal right to own and operate all its
material property, to lease the material property it operates as lessee and to
conduct the business in which it is currently engaged, and (c) is duly qualified
to conduct business and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification. The jurisdictions in which the Credit
Parties as of the Closing Date are organized and qualified to do business are
described on Schedule 3.3.
------------
SECTION 3.4 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
-------------------------------------------------------
Each of the Credit Parties has full power and authority and the legal
right to make, deliver and perform the Credit Documents to which it is party and
has taken all necessary action to authorize the execution, delivery and
performance by it of the Credit Documents to which it is party. No consent or
authorization of, filing with, notice to or other act by or in respect of, any
57
Governmental Authority or any other Person is required in connection with the
borrowings hereunder or with the execution, delivery or performance of any
Credit Document by any of the Credit Parties (other than those which have been
obtained) or with the validity or enforceability of any Credit Document against
any of the Credit Parties (except such filings as are necessary in connection
with the perfection of the Liens created by such Credit Documents). Each Credit
Document to which it is a party has been duly executed and delivered on behalf
of the applicable Credit Party. Each Credit Document to which it is a party
constitutes a legal, valid and binding obligation of each such Credit Party,
enforceable against such Credit Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
SECTION 3.5 COMPLIANCE WITH LAWS; NO CONFLICT; NO DEFAULT.
---------------------------------------------
(a) The execution, delivery and performance by each Credit
Party of the Credit Documents to which such Credit Party is a party, in
accordance with their respective terms, the borrowings hereunder and
the transactions contemplated hereby do not and will not, by the
passage of time, the giving of notice or otherwise, (i) require any
Governmental Approval (other than such Governmental Approvals that have
been obtained or made and not subject to suspension, revocation or
termination) or violate any Requirement of Law relating to such Credit
Party, (ii) conflict with, result in a breach of or constitute a
default under the articles of incorporation, bylaws, articles of
organization, operating agreement or other organizational documents of
such Credit Party or any material indenture, agreement or other
instrument to which such Person is a party or by which any of its
properties may be bound or any Governmental Approval relating to such
Person, or (iii) result in or require the creation or imposition of any
Lien upon or with respect to any property now owned or hereafter
acquired by such Person other than Liens arising under the Credit
Documents; provided, however, that (A) under Communications Laws
-------- -------
governmental approval may be required prior to (x) the transfer of
control of any Credit Party, (y) the assignment of any FCC License or
PUC Authorization, (z) the exercise of any voting rights or management
authority over any Credit Party to the extent that such exercise
constitutes a transfer of control of such Credit Party or an assignment
of any FCC License or PUC Authorization, and (B) the exercise by the
Administrative Agent or any Lender of any right or remedy under the
Credit Documents as described in, or that gives rise to an event
described in, clause (A) may require governmental approval.
(b) Each Credit Party (i) (x) has all Governmental Approvals
required by law for it to conduct its business, each of which is in
full force and effect, (y) each such Governmental Approval is final and
not subject to review on appeal and (z) each such Governmental Approval
is not the subject of any pending or, to the best of its knowledge,
threatened attack by direct or collateral proceeding, and (ii) is in
compliance with each Governmental Approval applicable to it and in
compliance with all other Requirements of Law relating to it or any of
its respective properties, in each case except to the extent the
failure to obtain such Governmental Approval or failure to comply with
such
58
Governmental Approval or Requirement of Law could not reasonably be
expected to have a Material Adverse Effect.
(c) None of the Credit Parties is in default under or with
respect to any of its Material Contracts or under or with respect to
any of its other material Contractual Obligations, or any judgment,
order or decree to which it is a party, in any respect which could
reasonably be expected to have a Material Adverse Effect. No Default or
Event of Default has occurred and is continuing.
SECTION 3.6 NO MATERIAL LITIGATION.
-----------------------
Except as set forth in Schedule 3.6, no litigation, investigation or
------------
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the best knowledge of the Credit Parties, threatened by or against any of
them or against any of their respective properties or revenues (a) with respect
to the Credit Documents or any Loan or any of the transactions contemplated
hereby, or (b) which, if adversely determined, could reasonably be expected to
have a Material Adverse Effect.
SECTION 3.7 INVESTMENT COMPANY ACT; PUHCA.
-----------------------------
None of the Credit Parties (a) is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended or (b) is a "holding company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935.
SECTION 3.8 MARGIN REGULATIONS.
------------------
No part of the proceeds of any Loan hereunder will be used directly or
indirectly for any purpose which violates, or which would be inconsistent with,
the provisions of Regulation T, U or X of the Board of Governors of the Federal
Reserve System as now and from time to time hereafter in effect. The Credit
Parties (a) are not engaged, principally or as one of their important
activities, in the business of extending credit for the purpose of "purchasing"
or "carrying" "margin stock" within the respective meanings of each of such
terms under Regulation U and (b) taken as a group do not own "margin stock"
except as identified in the financial statements referred to in Section 3.1 and
the aggregate value of all "margin stock" owned by the Credit Parties taken as a
group does not exceed 25% of the value of their assets.
SECTION 3.9 ERISA.
-----
Except as set forth in Schedule 3.9, neither a Reportable Event nor an
------------
"accumulated funding deficiency" (within the meaning of Section 412 of the Code
or Section 302 of ERISA) has occurred during the five-year period prior to the
date on which this representation is made or deemed made with respect to any
Plan, and each Plan has complied in all material respects with the applicable
provisions of ERISA and the Code, except to the extent that any such occurrence
59
or failure to comply would not reasonably be expected to have a Material
Adverse Effect. No termination of a Single Employer Plan has occurred resulting
in any liability that has remained underfunded, and no Lien in favor of the
PBGC or a Plan has arisen, during such five-year period which could reasonably
be expected to have a Material Adverse Effect. The present value of all accrued
benefits under each Single Employer Plan (based on those assumptions used to
fund such Plans) did not, as of the last annual valuation date prior to the
date on which this representation is made or deemed made, exceed the value of
the assets of such Plan allocable to such accrued benefits by an amount which,
as determined in accordance with GAAP, could reasonably be expected to have a
Material Adverse Effect. Neither the Borrower, nor any Subsidiary of the
Borrower nor any Commonly Controlled Entity is currently subject to any
liability for a complete or partial withdrawal from a Multiemployer Plan that
could reasonably be expected to have a Material Adverse Effect.
SECTION 3.10 ENVIRONMENTAL MATTERS.
---------------------
(a) Except to the extent such violation or liability could
not reasonably be expected to have a Material Adverse Effect, the
facilities and properties owned, leased or operated by any of the
Credit Parties (the "Properties") do not contain any Materials of
----------
Environmental Concern in amounts or concentrations which (i) constitute
a violation of, or (ii) could give rise to liability under, any
Environmental Law.
(b) Except to the extent such non-compliance or violation
could not reasonably be expected to have a Material Adverse Effect, the
Properties and all operations of the Credit Parties at the Properties
are in compliance, and, to the best of the Credit Parties' knowledge,
have in the last five years been in compliance, in all material
respects with all applicable Environmental Laws, and, to the best of
the Credit Parties' knowledge there is no contamination at, under or
about the Properties or violation of any Environmental Law with respect
to the Properties or the business operated by the any of the Credit
Parties (the "Business"), except to the extent the effects of such
--------
contamination could not reasonably be expected to have a Material
Adverse Effect.
(c) None of the Credit Parties has received any written or
actual notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Properties
or the Business, nor does any of the Credit Parties have knowledge of
any such threatened notice.
(d) To the best of the Credit Parties' knowledge, Materials
of Environmental Concern have not been transported or disposed of
from the Properties in violation of, or in a manner or to a location
which could give rise to liability under any Environmental Law, nor
have any Materials of Environmental Concern been generated, treated,
stored or disposed of at, on or under any of the Properties in
violation of, or in a manner that could give rise to liability under,
any applicable Environmental Law.
60
(e) No judicial proceeding or governmental or administrative
action is pending or, to the best of the Credit Parties' knowledge,
threatened, under any Environmental Law to which any of the Credit
Parties is or will be named as a party with respect to the Properties
or the Business, nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties or the Business.
(f) To the best of the Credit Parties' knowledge, there has
been no release or threat of release of Materials of Environmental
Concern at or from the Properties, or arising from or related to the
operations of any of the Credit Parties in connection with the
Properties or otherwise in connection with the Business, in violation
of or in amounts or in a manner that could give rise to liability under
Environmental Laws.
SECTION 3.11 PURPOSE OF LOANS.
----------------
The proceeds of the Loans will be used (a) to refinance existing
Indebtedness, (b) for capital expenditures, (c) for transaction costs related to
the negotiation, execution and delivery of the Credit Documents and (d) for
working capital and other general corporate purposes, including Permitted
Acquisitions.
SECTION 3.12 SUBSIDIARIES.
------------
Set forth on Schedule 3.12 is a complete and accurate list of all
-------------
direct and indirect Subsidiaries of the Borrower as of the Closing Date.
Information on such Schedule includes the number of shares of each class of
Capital Stock or other equity interests outstanding; the number and percentage
of outstanding shares of each class of stock owned by the Borrower or any of its
Subsidiaries; the number and effect, if exercised, of all outstanding options,
warrants, rights of conversion or purchase and similar rights and the
Televisions Stations and Radio Stations owned by such Subsidiary, if any, as of
the Closing Date. The outstanding Capital Stock and other equity interests of
all such Subsidiaries is validly issued, fully paid and non-assessable and is
owned, free and clear of all Liens (other than those arising under or
contemplated in connection with the Credit Documents).
SECTION 3.13 OWNERSHIP.
---------
Each of the Credit Parties is the owner of, and has good and marketable
title to, all of its respective assets, which, together with assets leased or
licensed by the Credit Parties, represents all assets individually or in the
aggregate material to the conduct of the businesses of the Credit Parties, taken
as a whole on the date hereof, and none of such assets is subject to any Lien
other than Permitted Liens. Each Credit Party enjoys peaceful and undisturbed
possession under all of its leases and all such leases are valid and subsisting
and in full force and effect. The Credit Parties have delivered complete and
accurate copies of all material leases to the Administrative Agent.
61
SECTION 3.14 INDEBTEDNESS.
------------
Except as otherwise permitted under Section 6.1, the Credit Parties
have no Indebtedness.
SECTION 3.15 TAXES.
-----
Each of the Credit Parties has filed, or caused to be filed, all tax
returns (federal, state, local and foreign) required to be filed and paid (a)
all amounts of taxes shown thereon to be due (including interest and penalties)
and (b) all other taxes, fees, assessments and other governmental charges
(including mortgage recording taxes, documentary stamp taxes and intangibles
taxes) owing by it, except for such taxes (i) which are not yet delinquent or
(ii) that are being contested in good faith and by proper proceedings, and
against which adequate reserves are being maintained in accordance with GAAP.
None of the Credit Parties is aware as of the Closing Date of any proposed tax
assessments against it or any of its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect.
SECTION 3.16 INTELLECTUAL PROPERTY RIGHTS.
----------------------------
Each of the Borrower and its Subsidiaries owns, or has the legal right
to use, all Intellectual Property necessary for each of them to conduct its
business as currently conducted. Set forth on Schedule 3.16 is a list of all
-------------
Intellectual Property owned by each of the Borrower and its Subsidiaries or that
the Borrower or any of its Subsidiaries has the right to use, as of the Closing
Date. Except as disclosed in Schedule 3.16 hereto, (a) the specified Credit
-------------
Party has the right to use the Intellectual Property disclosed in Schedule 3.16
-------------
hereto in perpetuity and without payment of royalties, (b) all registrations
with and applications to Governmental Authorities in respect of such
Intellectual Property are valid and in full force and effect and are not subject
to the payment of any taxes or maintenance fees or the taking of any interest
therein, held by any of the Credit Parties to maintain their validity or
effectiveness, and (c) there are no restrictions on the direct or indirect
transfer of any Contractual Obligation, or any interest therein, held by any of
the Credit Parties in respect of such Intellectual Property. None of the Credit
Parties is in default (or with the giving of notice or lapse of time or both,
would be in default) under any license to use such Intellectual Property; no
claim has been asserted and is pending by any Person challenging or questioning
the use of any such Intellectual Property or the validity or effectiveness of
any such Intellectual Property, nor does the Borrower or any of its Subsidiaries
know of any such claim; and, to the knowledge of the Borrower or any of its
Subsidiaries, the use of such Intellectual Property by the Borrower or any of
its Subsidiaries does not infringe on the rights of any Person. The Credit
Parties have recorded or deposited with and paid to the United States Copyright
Office, the Register of Copyrights, the Copyrights Royalty Tribunal or other
Governmental Authority, all notices, statements of account, royalty fees and
other documents and instruments required under the terms and conditions of any
Contractual Obligation of the Credit Parties and/or under Title 17 of the United
States Code and the rules and regulations issued thereunder (collectively, the
"Copyright Act"), and are not liable to any Person for copyright infringement
-------------
under the Copyright Act or any other law, rule, regulation, contract or license
as a result of their business operations.
62
SECTION 3.17 SOLVENCY.
--------
The fair saleable value, on a Consolidated basis, of the Credit
Parties' assets, measured on a going concern basis, exceeds all probable
liabilities, including those to be incurred pursuant to this Credit Agreement.
None of the Credit Parties (a) has unreasonably small capital in relation to the
business in which it is or proposes to be engaged or (b) has incurred, or
believes that it will incur after giving effect to the transactions contemplated
by this Credit Agreement, debts beyond its ability to pay such debts as they
become due. In executing the Credit Documents and consummating the transactions
contemplated thereby, none of the Credit Parties intends to hinder, delay or
defraud either present or future creditors or other Persons to which one or more
of the Credit Parties is or will become indebted.
SECTION 3.18 INVESTMENTS.
-----------
All Investments of each of the Credit Parties are Permitted
Investments.
SECTION 3.19 LOCATION OF COLLATERAL.
----------------------
Set forth on Schedule 3.19(a) is a list of the Properties of the
----------------
Borrower and its Subsidiaries as of the Closing Date with street address, county
and state where located. Set forth on Schedule 3.19(b) is a list of all
----------------
locations as of the Closing Date where any tangible personal property of the
Borrower and its Subsidiaries is located, including county and state where
located. Set forth on Schedule 3.19(c) is the chief executive office and
----------------
principal place of business of each of the Borrower and its Subsidiaries as of
the Closing Date.
SECTION 3.20 NO BURDENSOME RESTRICTIONS.
--------------------------
None of the Credit Parties is a party to any agreement or instrument or
subject to any other obligation or any charter or corporate restriction or any
provision of any applicable law, rule or regulation which, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect.
SECTION 3.21 LABOR MATTERS.
-------------
There are no collective bargaining agreements or Multiemployer Plans
covering the employees of the Credit Parties as of the Closing Date, other than
as set forth in Schedule 3.21 hereto, and none of the Credit Parties has
-------------
suffered any strikes, walkouts, work stoppages or other material labor
difficulty within the last five years, other than as set forth in Schedule 3.21
-------------
hereto.
SECTION 3.22 ACCURACY AND COMPLETENESS OF INFORMATION.
----------------------------------------
All factual information heretofore, contemporaneously or hereafter
furnished by or on behalf of the Credit Parties in writing to the Administrative
Agent or any Lender for purposes of or in connection with this Credit Agreement
or any other Credit Document, or any transaction contemplated hereby or thereby,
is or will be true and accurate in all material respects and not
63
incomplete by omitting to state any material fact necessary to make such
information not misleading. There is no fact now known to any of the Credit
Parties which has, or could reasonably be expected to have, a Material Adverse
Effect which fact has not been set forth herein, in the financial statements of
the Credit Parties furnished to the Administrative Agent and/or the Lenders, or
in any certificate, opinion or other written statement made or furnished by or
on behalf of the Credit Parties to the Administrative Agent and/or the Lenders.
SECTION 3.23 MATERIAL CONTRACTS.
------------------
Schedule 3.23 sets forth a complete and accurate list of all Material
-------------
Contracts of the Borrower and its Subsidiaries in effect as of the Closing Date.
Other than as set forth in Schedule 3.23, each such Material Contract is, and
-------------
after giving effect to the transactions contemplated by the Credit Documents
will be, in full force and effect in accordance with the terms thereof. The
Borrower and its Subsidiaries have delivered to the Administrative Agent a true
and complete copy of each such Material Contract (other than Immaterial FCC
Licenses and Immaterial PUC Authorizations).
SECTION 3.24 FCC AND STATION MATTERS.
-----------------------
(a) Schedule 3.24 correctly sets forth, as of the Closing
-------------
Date, all of the FCC Licenses, PUC Authorizations and Affiliation
Agreements held by the Credit Parties which are material to the
operation of the Stations and correctly sets forth the termination
date, if any, of each such FCC License, PUC Authorization and
Affiliation Agreement. To the Credit Parties' knowledge, (i) each
Material FCC License was duly and validly issued by the FCC and (ii)
each Material PUC Authorization was duly and validly issued by the
applicable PUC, in each case pursuant to procedures which comply in all
material respects with all Requirements of Law and none of the Credit
Parties has any knowledge of the occurrence of any event or the
existence of any circumstance which, in the reasonable judgment of any
such Credit Party, is likely to lead to modification, restriction or
revocation of any Material FCC License or Material PUC Authorization or
the termination or non-renewal of any Affiliation Agreement. The Credit
Parties have the right to use all FCC Licenses required in the ordinary
course of business for the Stations. To the best of the Credit Parties'
knowledge, the Material FCC Licenses and Material PUC Authorizations
are in full force and effect and the Credit Parties are in substantial
compliance therewith and to the best of the Credit Parties' knowledge,
the Material FCC Licenses and Material PUC Authorizations do not
conflict with the valid rights of others in any way which could
reasonably be expected to have a Material Adverse Effect. No event has
occurred which permits, or after notice or lapse of time or both would
permit, the revocation, termination, modification or restriction of any
Material FCC License or Material PUC Authorization which could
reasonably be expected to have a Material Adverse Effect. Except as set
forth on Schedule 3.24, each FCC License or PUC Authorization is held
-------------
by the Credit Party directly operating the Station with respect to
which such FCC License or PUC Authorization was issued or assigned.
64
(b) Each Credit Party (i) has duly filed in a timely manner
all filings relating to Material FCC Licenses and Material PUC
Authorizations which are required to be filed by each such Credit Party
under Communications Law, (ii) has duly filed in a timely manner all
other filings which are required to be filed by each such Credit Party
under Communications Law, except such filings with respect to which the
failure to file could not reasonably be expected to have a Material
Adverse Effect and (iii) is in all material respects in substantial
compliance with Communications Law, including, without limitation, the
rules and regulations of the FCC relating to the broadcast of
television and radio signals.
(c) None of the Stations (including without limitation, the
transmitter and tower sites owned or used by the Credit Parties)
violate in any material respect the provisions of any applicable
building codes, fire regulations, building restrictions or other
governmental ordinances, orders or regulations and each such Station is
zoned so as to permit the commercial uses intended by the owner or
occupier thereof and there are no outstanding variances (other than
permitted variances) or special use permits materially affecting any of
the Stations or the uses thereof.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.1 CLOSING CONDITIONS.
------------------
This Credit Agreement shall become effective upon, and the obligation
of each Lender to make the initial Revolving Loans and the Term Loans on the
Closing Date is subject to, the satisfaction of the following conditions
precedent:
(a) Execution of Credit Agreement and Credit Documents. The
--------------------------------------------------
Administrative Agent shall have received (i) counterparts of this
Credit Agreement, executed by a duly authorized officer of each party
hereto, (ii) for the account of each Lender with a Revolving
Commitment, a Revolving Note, (iii) for the account of each Lender with
a Tranche A Term Loan Commitment, a Tranche A Term Note, (iv) for the
account of each Lender with a Tranche B Term Loan Commitment, a Tranche
B Term Note, (v) counterparts of the Security Agreements and the Pledge
Agreements, in each case conforming to the requirements of this Credit
Agreement and executed by duly authorized officers of the Credit
Parties and the Parent, as applicable and (vi) counterparts of any
other Credit Document, executed by the duly authorized officers of the
parties thereto.
65
(b) Authority Documents. The Administrative Agent shall
-------------------
have received the following:
(i) Articles of Incorporation. Copies of the
-------------------------
articles of incorporation or other charter documents of the
Parent and each Credit Party certified to be true and complete
as of a recent date by the appropriate governmental authority
of the state of its incorporation.
(ii) Resolutions. Copies of resolutions of the board
-----------
of directors of the Parent and each Credit Party approving and
adopting the Credit Documents, the transactions contemplated
therein and authorizing execution and delivery thereof,
certified by an officer of such Credit Party as of the Closing
Date to be true and correct and in force and effect as of such
date.
(iii) Bylaws. A copy of the bylaws of the Parent and
------
each Credit Party certified by an officer of such Credit Party
as of the Closing Date to be true and correct and in force and
effect as of such date.
(iv) Good Standing. Copies of (i) certificates of
-------------
good standing, existence or its equivalent with respect to
each Credit Party certified as of a recent date by the
appropriate Governmental Authorities of the state of
incorporation or organization and (ii) to the extent readily
available, a certificate indicating payment of all corporate
and other franchise taxes certified as of a recent date by the
appropriate governmental taxing authorities.
(v) Incumbency. An incumbency certificate of each
----------
Credit Party certified by a secretary or assistant secretary
to be true and correct as of the Closing Date, in
substantially the form of Schedule 4.1-1 hereto.
--------------
(c) Personal Property Collateral. The Administrative
----------------------------
Agent shall have received, in form and substance satisfactory to the
Administrative Agent:
(i) searches of Uniform Commercial Code filings in
the jurisdiction of the chief executive office and state of
incorporation of each Credit Party and each jurisdiction where
any Collateral is located or where a filing would need to be
made in order to perfect the Administrative Agent's security
interest in the Collateral, copies of the financing statements
on file in such jurisdictions and evidence that no Liens exist
other than Permitted Liens;
(ii) duly executed UCC financing statements for each
appropriate jurisdiction as is necessary, in the
Administrative Agent's sole discretion, to perfect the
Administrative Agent's security interest in the Collateral;
(iii) searches of ownership of Intellectual Property
in the appropriate governmental offices and such
patent/trademark/copyright filings as requested by
66
the Administrative Agent in order to perfect the
Administrative Agent's security interest in the Intellectual
Property;
(iv) such patent/trademark/copyright filings as
requested by the Administrative Agent in order to perfect the
Administrative Agent's security interest in the Intellectual
Property;
(v) all stock certificates, if any, evidencing the
Capital Stock pledged to the Administrative Agent pursuant to
the Pledge Agreements (or in the case of the Capital Stock of
the Borrower, a promise to deliver the same from the party
currently in possession thereof, in form reasonably
satisfactory to the Administrative Agent), together with duly
executed in blank undated stock powers attached or for
attachment thereto;
(vi) all instruments and chattel paper in the
possession of any of the Credit Parties, together with
allonges or assignments as may be necessary or appropriate to
perfect the Administrative Agent's security interest in the
Collateral;
(vii) duly executed consents as are necessary, in the
Administrative Agent's sole discretion, to perfect the Lenders'
security interest in the Collateral;
(viii) in the case of any personal property
Collateral located at premises leased by a Credit Party such
estoppel letters, consents and waivers from the landlords on
such real property as may be required by the Administrative
Agent; and
(ix) copies of the Affiliation Agreements, Material
FCC Licenses, Material PUC Authorizations and other Material
Contracts, certified by an officer of such Credit Party as of
the Closing Date to be true and correct copies of such
documents.
(d) Liability and Casualty Insurance. The Administrative
--------------------------------
Agent shall have received copies of insurance policies or
certificates of insurance evidencing liability and casualty insurance
(including, but not limited to, business interruption insurance)
meeting the requirements set forth herein or in the Security
Documents. The Administrative Agent shall be named as loss payee on
all casualty insurance policies and as additional insured on all
liability insurance policies, in each case for the benefit of the
Lenders.
(e) Fees. The Administrative Agent and Bank of America shall
----
have received all fees, if any, owing pursuant to the Fee Letters and
Section 2.6.
(f) Litigation. There shall not exist any material pending
----------
or threatened litigation, investigation, bankruptcy, insolvency,
injunction, order or claim with respect to the Parent, the Borrower or
any of their respective Subsidiaries, or affecting or relating to
67
this Credit Agreement and the other Credit Documents, that has not
been settled, dismissed, vacated, discharged or terminated prior to
the Closing Date.
(g) Solvency Certificate. The Administrative Agent shall
--------------------
have received an officer's certificate prepared by the chief financial
officer of the Borrower as to the financial condition, solvency and
related matters of the Borrower and its Subsidiaries, on a consolidated
basis, after giving effect to the initial borrowings under the Credit
Documents, in substantially the form of Schedule 4.1-2 hereto.
--------------
(h) Account Designation Letter. The Administrative
----------------------------
Agent shall have received the executed Account Designation Letter
in the form of Schedule 1.1-1 hereto.
--------------
(i) Corporate Structure. The corporate capital and ownership
-------------------
structure of the Credit Parties shall be as described in Schedule 3.12.
-------------
The Administrative Agent shall be satisfied with management structure,
legal structure, voting control, liquidity, total leverage and total
capitalization of the Credit Parties.
(j) Government Consent. The Administrative Agent shall have
------------------
received evidence that all governmental, shareholder and material third
party consents and approvals necessary in connection with financings
and other transactions contemplated hereby have been obtained.
(k) Compliance with Laws. The financings and other
--------------------
transactions contemplated hereby shall be in compliance with all
applicable laws and regulations (including all Communications Law and
all applicable securities and banking laws, rules and regulations).
(l) Bankruptcy. There shall be no bankruptcy or
----------
insolvency proceedings with respect to the Parent, the Borrower or
any of their respective Subsidiaries.
(m) Existing Indebtedness of the Credit Parties. All of the
-------------------------------------------
existing Indebtedness for borrowed money of the Credit Parties (other
than Indebtedness permitted to exist pursuant to Section 6.1) shall be
repaid in full and all security interests and Liens related thereto
shall be terminated on the Closing Date.
(n) Financial Statements. The Administrative Agent and the
--------------------
Lenders shall have received copies of the financial statements and
information referred to in Section 3.1 hereof, which shall be in form
and substance satisfactory to the Administrative Agent.
(o) No Material Adverse Change. Since December 31,
--------------------------
2000, there has been no development or event which has had or
could reasonably be expected to have a Material Adverse Effect.
(p) FCC Matters. (i) All necessary FCC Licenses with respect
-----------
to the Stations owned or operated by the Credit Parties shall be in
full force and effect, (ii) any necessary
68
PUC Authorizations shall have been obtained and shall be in form and
substance satisfactory to the Administrative Agent and (iii) the
Credit Parties will be in compliance with any applicable provisions
of Section 310(b) of the Communications Act of 1934 concerning
foreign ownership and with any other applicable ownership rules under
the Communications Act of 1934, including, without limitation,
multiple ownership, cross ownership and any other ownership limits.
(q) Officer's Certificates. The Administrative Agent shall
----------------------
have received (i) a certificate, in form and substance satisfactory to
the Administrative Agent and certified as accurate by a Responsible
Officer, demonstrating compliance by the Borrower and its Subsidiaries
as of the Closing Date with the financial covenants contained in
Section 5.9 hereof and (ii) a closing officer's certificate in form and
substance satisfactory to the Administrative Agent.
(r) Legal Opinions of Counsel. The Administrative Agent
-------------------------
shall have received (i) an opinion or opinions of counsel for the
Credit Parties, dated the Closing Date and addressed to the
Administrative Agent and the Lenders, in form and substance
acceptable to the Administrative Agent (which shall include, without
limitation, opinions with respect to the due organization and valid
existence of each Credit Party and opinions as to perfection of the
Liens granted to the Administrative Agent pursuant to the Security
Documents) and (ii) an opinion of FCC counsel to the Credit Parties,
dated the Closing Date and addressed to the Administrative Agent and
the Lenders, in form and substance acceptable to the Administrative
Agent.
(s) Leverage Ratio. The Leverage Ratio as of the Closing
--------------
Date (calculated using Consolidated Funded Debt as of the Closing
Date and projected Consolidated EBITDA as of December 31, 2001),
after giving pro forma effect to the initial Extensions of Credit
hereunder, shall not exceed 5.25 to 1.0.
(t) Revolving Loan Outstandings. The amount of
---------------------------
Revolving Loans borrowed on the Closing Date shall not exceed
$6,000,000.
(u) Other Debt Instruments. The Administrative Agent shall
----------------------
have received copies of all agreements and instruments evidencing
Indebtedness of the Parent and its Subsidiaries (other than the Credit
Parties) and any Liens granted to secure such Indebtedness, (i) which
agreements and instruments shall not contain any cross-default (other
than direct or indirect cross-defaults related to the bankruptcy of a
Credit Party, any material litigation or judgment affecting a Credit
Party, the failure of a Credit Party to file a material tax return and
the occurrence of a material adverse effect with respect to the Parent
and its Subsidiaries take as a whole) or cross-acceleration to the
Credit Documents, (ii) which Indebtedness shall be (A) on terms
acceptable to the Administrative Agent and (B) non-recourse to the
Credit Parties and (iii) which Liens shall not include Liens on any
Capital Stock of the Borrower and its Subsidiaries or any assets of the
Credit Parties.
69
(v) ▇▇▇▇▇▇ Plaza Lease. The Administrative Agent shall
------------------
have received an executed of, and approved the terms of, the ▇▇▇▇▇▇
Plaza Lease.
(w) Additional Matters. All other documents and legal
-------------------
matters in connection with the transactions contemplated by this
Credit Agreement shall be reasonably satisfactory in form and
substance to the Administrative Agent and its counsel.
SECTION 4.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
--------------------------------------
The obligation of each Lender to make any Extension of Credit hereunder
is subject to the satisfaction of the following conditions precedent on the date
of making such Extension of Credit:
(a) Representations and Warranties. The representations and
------------------------------
warranties made by the Credit Parties in Section 3, in the Security
Documents or which are contained in any certificate furnished at any
time under or in connection herewith shall be true and correct in all
material respects on and as of the date of such Extension of Credit as
if made on and as of such date (except for those which expressly relate
to an earlier date).
(b) No Default or Event of Default. No Default or Event of
------------------------------
Default shall have occurred and be continuing on such date or after
giving effect to the Extension of Credit to be made on such date unless
such Default or Event of Default shall have been waived in accordance
with this Credit Agreement.
(c) Compliance with Commitments. Immediately after giving
---------------------------
effect to the making of any such Extension of Credit (and the
application of the proceeds thereof), (i) the sum of the aggregate
principal amount of outstanding Revolving Loans plus LOC Obligations
----
shall not exceed the Revolving Committed Amount then in effect and (ii)
the LOC Obligations shall not exceed the LOC Committed Amount.
(d) Additional Conditions to Extensions of Credit. If such
---------------------------------------------
Extension of Credit is made pursuant to Sections 2.1, 2.2, 2.3, 2.4 or
2.5, all conditions set forth in such Section shall have been
satisfied.
(e) Additional Conditions to Revolving Loans and Additional
-------------------------------------------------------
Loans Made to Fund Permitted Acquisitions. If a Revolving Loan and/or
-----------------------------------------
an Additional Loan is requested to fund a Permitted Acquisition, in
addition to the conditions set forth in Section 2.1 and Section 2.4, as
applicable, the Borrower shall deliver to the Administrative Agent a
compliance certificate attaching pro forma financial and other
information with respect to the Borrower and its Subsidiaries (after
giving effect to the Permitted Acquisition and the making of the
related Revolving Loan and/or Additional Loan), which compliance
certificate shall be in form and substance satisfactory to the
Administrative Agent.
70
Each request for an Extension of Credit and each acceptance by the
Borrower of any such Extension of Credit shall be deemed to constitute a
representation and warranty by the Borrower as of the date of such Extension of
Credit that the applicable conditions in subsections (a) through (e) of this
Section have been satisfied.
ARTICLE V
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that on the Closing Date,
and thereafter for so long as this Credit Agreement is in effect and until (a)
the Commitments have terminated, (b) all Letters of Credit have expired or been
surrendered to the Issuing Lender, (c) no Note remains outstanding and unpaid
and (d) the Credit Party Obligations, together with interest, Commitment Fees
and all other amounts owing to the Agent or any Lender hereunder, are paid in
full, such Credit Party shall, and shall cause each of its Subsidiaries, to:
SECTION 5.1 FINANCIAL STATEMENTS.
--------------------
Furnish to the Administrative Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available, but
---------------------------
in any event within ninety (90) days after the end of each fiscal year
of the Borrower, a copy of the Consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal year and the
related Consolidated statements of income and Consolidated statements
of cash flows and retained earnings of the Borrower and its
Subsidiaries for such year, audited by a firm of independent certified
public accountants of nationally recognized standing reasonably
acceptable to the Administrative Agent, and unaudited consolidating
balance sheets and statements of income, setting forth in each case in
comparative form the figures for the preceding fiscal year, reported on
without a "going concern" or like qualification or exception, or
qualification indicating that the scope of the audit was inadequate to
permit such independent certified public accountants to certify such
financial statements without such qualification;
(b) Quarterly Financial Statements. As soon as available and
------------------------------
in any event within forty-five (45) days after the end of each of the
first three fiscal quarters of the Borrower, a company-prepared
Consolidated and consolidating balance sheet of the Borrower and its
Subsidiaries as at the end of such period and related company-prepared
Consolidated and consolidating statements of income and Consolidated
statements of cash flows and retained earnings for the Borrower and its
Subsidiaries for such quarterly period and for the portion of the
fiscal year ending with such period, in each case setting forth in
comparative form the figures for the corresponding period or periods of
the preceding fiscal year (subject to normal recurring year-end audit
adjustments);
71
(c) Monthly Financial Statements. As soon as available and
----------------------------
in any event within thirty (30) days after the end of each calendar
month (or (i) with respect to the last calendar month of the first
three fiscal quarters of the Borrower, within forty-five (45) days
after the end of each such calendar month and (ii) with respect to
the last calendar month of the fourth fiscal quarter of the Borrower,
within ninety (90) days after the end of such calendar month), a
company-prepared balance sheet (unaudited and before any
consolidating adjustments) of the Borrower and its Subsidiaries as at
the end of such month and related company-prepared statements of
income for the Borrower and its Subsidiaries for such month and for
the portion of the fiscal year ending with such month, in
substantially the same form as the monthly financial statements of
the Borrower and its Subsidiaries for the month ended December 31,
2001 (subject to normal recurring year-end audit adjustments);
all such financial statements delivered pursuant to subsections (a),
(b) and (c) to fairly present in all material respects the financial
condition and results from operations of the entities and for the
periods specified and to be prepared in reasonable detail and in
accordance with GAAP (subject, in the case of interim statements, to
normal recurring year-end audit adjustments) applied consistently
throughout the periods reflected therein and further accompanied by a
description of, and an estimation of the effect on the financial
statements on account of, a change in the application of accounting
principles as provided in Section 1.3; and
(d) Annual Financial Plans. As soon as practicable and in
----------------------
any event within thirty (30) days after the end of each fiscal year,
a Consolidated and consolidating budget and cash flow projections on
a monthly basis of the Borrower and its Subsidiaries for such fiscal
year, reasonably acceptable to the Agent, such budget to be prepared
by the Borrower in a manner consistent with GAAP and to include an
operating and capital budget, a summary of the material assumptions
made in the preparation of such budget and a breakout by Television
Station and Radio Group. Such budget shall be accompanied by a
certificate of the chief financial officer of the Borrower to the
effect that the budgets and other financial data are based on
reasonable estimates and assumptions, all of which are fair in light
of the conditions which existed at the time the budget was made, have
been prepared on the basis of the assumptions stated therein, and
reflect, as of the time so furnished, the reasonable estimate of the
Borrower and its Subsidiaries of the budgeted results of the
operations and other information budgeted therein.
SECTION 5.2 CERTIFICATES; OTHER INFORMATION.
-------------------------------
Furnish to the Administrative Agent and each of the Lenders:
(a) concurrently with the delivery of the financial
statements referred to in Section 5.1(a) above, a certificate of the
independent certified public accountants reporting on such financial
statements stating that in making the examination necessary
72
therefor no knowledge was obtained of any Default or Event of
Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial
statements referred to in Sections 5.1(a) and 5.1(b) above, a
Compliance Certificate;
(c) within thirty (30) days after the same are sent, copies
of all reports (other than those otherwise provided pursuant to
Section 5.1 and those which are of a promotional nature) and other
financial information which the Borrower or the Parent sends to its
shareholders;
(d) within ninety (90) days after the end of each fiscal
year of the Borrower, a certificate containing information regarding
(i) the calculation of Excess Cash Flow and (ii) the amount of all
Asset Dispositions, Debt Issuances, and Equity Issuances that were
made during the prior fiscal year and amounts received in connection
with any Recovery Event during the prior fiscal year;
(e) promptly upon receipt thereof, a copy or summary of any
other report or "management letter" submitted or presented by
independent accountants to the Borrower or any of its Subsidiaries in
connection with any annual, interim or special audit of the books of
such Person;
(f) promptly upon their becoming available, copies of (i)
all press releases and other statements made available generally by
the Borrower to the public concerning material developments in the
business of the Borrower and its Subsidiaries, (ii) any non-routine
correspondence or official notices received by the Borrower or any of
its Subsidiaries from any federal, state or local governmental
authority which regulates the operations of the Borrower and its
Subsidiaries, and (iii) all Ownership Reports filed with the FCC and
all other material reports or documents filed with the FCC or any
other Governmental Authority;
(g) promptly after the same become publicly available,
copies of all periodic and other reports, proxy statements and other
materials filed by the Borrower or any of its Subsidiaries with the
Securities and Exchange Commission or any successor entity, or with
any national securities exchange;
(h) concurrently with the delivery of the financial
statements referred to in Sections 5.1(a) above, (A) an updated copy
of Schedule 3.12 if the Borrower or any of its Subsidiaries has
-------------
formed or acquired a new Subsidiary since the Closing Date or since
Schedule 3.12 was last updated, as applicable, (B) an updated copy of
-------------
Schedule 3.16 if the Borrower or any of its Subsidiaries has
-------------
registered, applied for registration of, acquired or otherwise
obtained ownership of any new Intellectual Property since the Closing
Date or since Schedule 3.16 was last updated, as applicable, (C) an
-------------
updated copy of Schedule 3.23 if any new Material Contract has been
-------------
entered into since the Closing Date or since Schedule 3.23 was last
-------------
updated, as applicable, together with a copy of each new Material
73
Contract and (D) an updated copy of Schedule 3.24 if any Credit Party
-------------
has acquired any new FCC License, obtained any new PUC Authorization
or entered into any new Affiliation Agreement (or if the designation
of any FCC License or PUC Authorization as material or immaterial has
changed) since the Closing Date or since Schedule 3.24 was last
-------------
updated, as applicable; and
(i) promptly, such additional financial and other
information as the Administrative Agent, on behalf of any Lender,
may from time to time reasonably request.
SECTION 5.3 PAYMENT OF TAXES AND OTHER OBLIGATIONS.
--------------------------------------
Pay, discharge or otherwise satisfy at or before maturity or before
they become delinquent, as the case may be, all its taxes (Federal, state, local
and any other taxes) and other obligations and liabilities of whatever nature
and any additional costs that are imposed as a result of any failure to so pay,
discharge or otherwise satisfy such taxes, obligations and liabilities, except
when the amount or validity of any such taxes, obligations and liabilities is
currently being contested in good faith by appropriate proceedings and reserves,
if applicable, in conformity with GAAP with respect thereto have been provided
on the books of the Credit Parties.
SECTION 5.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE.
------------------------------------------------
Continue to engage in business of the same general type as conducted by
it on the Closing Date; preserve, renew and keep in full force and effect its
existence and good standing; take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of its
business (including, without limitation, all Material FCC Licenses) and to
maintain its goodwill; comply with all Contractual Obligations and Requirements
of Law applicable to it except to the extent that failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
SECTION 5.5 MAINTENANCE OF PROPERTY; INSURANCE.
----------------------------------
(a) Keep all material property useful and necessary in its
business in good working order and condition (ordinary wear and tear
and obsolescence excepted).
(b) Maintain with financially sound and reputable insurance
companies insurance on all its property (including without limitation
its tangible Collateral) in at least such amounts and against at least
such risks as are commercially reasonable (including, without
limitation, business interruption insurance); and furnish to the
Administrative Agent, upon written request, full information as to the
insurance carried. The Administrative Agent shall be named as loss
payee or mortgagee, as its interest may appear, or an additional
insured, as applicable, with respect to such insurance policies, and
each provider of any such insurance shall agree, by endorsement upon
the policy or policies issued by it or by independent instruments
furnished to the Administrative Agent,
74
that it will give the Administrative Agent thirty (30) days prior
written notice before any such policy or policies shall be altered or
canceled, and that no act or default of any Credit Party or any other
Person shall affect the rights of the Administrative Agent or the
Lenders under such policy or policies. The present insurance coverage
of the Credit Parties is outlined as to carrier, policy number,
expiration date, type and amount on Schedule 5.5(b).
---------------
(c) In case of any material loss, damage to or destruction
of the Collateral of any Credit Party or any part thereof, such
Credit Party shall promptly give written notice thereof to the
Administrative Agent generally describing the nature and extent of
such damage or destruction. In case of any loss, damage to or
destruction of the Collateral of any Credit Party or any part
thereof, such Credit Party, whether or not the insurance proceeds, if
any, received on account of such damage or destruction shall be
sufficient for that purpose, at such Credit Party's cost and expense,
will promptly repair or replace the Collateral of such Credit Party
so lost, damaged or destroyed unless such Credit Party shall have
reasonably determined that such repair or replacement of the affected
Collateral is not economically feasible or is not deemed in the best
business interest of such Credit Party.
SECTION 5.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
------------------------------------------------------
Keep proper books of records and accounts in which full, true and
correct entries shall be made of all dealings and transactions in relation to
its businesses and activities, such entries to be in conformity with GAAP and in
conformity with Requirements of Law in all material respects; and permit, during
regular business hours and upon reasonable notice by the Administrative Agent or
any Lender, the Administrative Agent or any Lender to visit and inspect any of
its properties and examine and make abstracts from any of its books and records
at any reasonable time, upon reasonable notice and as often as may reasonably be
desired, and to discuss the business, operations, properties and financial and
other condition of the Credit Parties with officers and employees of the Credit
Parties and with their independent certified public accountants.
SECTION 5.7 NOTICES.
-------
Promptly (but in no event later than five (5) Business Days (or thirty
(30) days with respect to subsection (d) below) after any Credit Party obtains
actual knowledge thereof) give written notice of the following to the
Administrative Agent (which shall promptly transmit such notice to each Lender):
(a) the occurrence of any Default or Event of Default;
(b) the occurrence of any default or event of default under
any Contractual Obligation of any of the Credit Parties which could
reasonably be expected to have a Material Adverse Effect or involve a
monetary claim in excess of $2,000,000;
75
(c) any litigation, or any investigation or proceeding
affecting any of the Credit Parties which, if adversely determined,
could reasonably be expected to have a Material Adverse Effect;
(d) (i) the occurrence or expected occurrence of any
Reportable Event with respect to any Plan, a failure to make any
required contribution to a Plan, the creation of any Lien in favor of
the PBGC (other than a Permitted Lien) or a Plan or any withdrawal
from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking
of any other action by the PBGC or any Credit Party or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of,
any Plan;
(e) any notice of any material violation of any Requirement
of Law received by any Credit Party from any Governmental Authority
including, without limitation, any notice of violation of
Environmental Laws or Communications Laws;
(f) any labor controversy that has resulted in, or threatens
to result in, a strike or other work action against any Credit Party
which could reasonably be expected to have a Material Adverse Effect;
(g) any attachment, judgment, lien, levy or order exceeding
$2,000,000 that may be assessed against or threatened against any
Credit Party other than Permitted Liens;
(h) (i) any forfeiture, non-renewal, cancellation,
termination, revocation, suspension, impairment or material modification
of any Material FCC License held by any Credit Party or any Affiliation
Agreement, (ii) any default or forfeiture with respect to any such
Material FCC License or Affiliation Agreement, (iii) any hearing
designation order concerning any FCC application filed by any Credit
Party or any Material FCC License held by any Credit Party, (iv) any
refusal by any governmental agency or authority (including, without
limitation, the FCC) to renew or extend any such Material FCC License or
(v) the occurrence of any event or the existence of any circumstances
which is likely to lead to the termination or revocation of any Material
FCC License or any Affiliation Agreement;
(i) promptly, and in any event at least 30 days prior to the
consummation thereof, any acquisition or series of related acquisitions
that will qualify as a Permitted Acquisition if the total consideration
(including, without limitation, assumed liabilities, earnout payments
and any other deferred payment) for the business or property to be
acquired in such acquisition or series of related acquisitions exceeds
$2,000,000; and
(j) promptly, any other development or event which could
reasonably be expected to have a Material Adverse Effect.
76
Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes to take with
respect thereto. In the case of any notice of a Default or Event of Default, the
Borrower shall specify that such notice is a Default or Event of Default notice
on the face thereof.
SECTION 5.8 ENVIRONMENTAL LAWS.
------------------
(a) Comply in all material respects with all applicable
Environmental Laws and obtain and comply in all material respects with
and maintain any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws.
(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions
required under Environmental Laws and promptly comply in all material
respects with all lawful orders and directives of all Governmental
Authorities regarding Environmental Laws except to the extent that
the same are being contested in good faith by appropriate proceedings
and the pendency of such proceedings could not reasonably be expected
to have a Material Adverse Effect.
(c) Defend, indemnify and hold harmless the Administrative
Agent and the Lenders, and their respective employees, agents, officers
and directors, from and against any and all claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature known or unknown, contingent or otherwise,
arising out of, or in any way relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable
to the operations of the Credit Parties or the Properties, or any
orders, requirements or demands of Governmental Authorities related
thereto, including, without limitation, reasonable attorney's and
consultant's fees, investigation and laboratory fees, response costs,
court costs and litigation expenses, except to the extent that any of
the foregoing arise out of the gross negligence or willful misconduct
of the party seeking indemnification therefor. The agreements in this
paragraph shall survive repayment of the Notes and all other amounts
payable hereunder.
SECTION 5.9 FINANCIAL COVENANTS.
-------------------
Commencing on the day immediately following the Closing Date, the
Borrower shall, and shall cause each of its Subsidiaries to, comply with the
following financial covenants:
(a) Leverage Ratio. At all times, the Leverage Ratio during
--------------
the following periods shall be less than or equal to the ratios
corresponding to such periods:
77
----------------------------------------------------------------
Period Maximum Ratio
----------------------------------------------------------------
Closing Date through September 29, 2002 5.75 to 1.0
September 30, 2002 through December 30, 2002 5.25 to 1.0
December 31, 2002 through June 29, 2003 4.50 to 1.0
June 30, 2003 through December 30, 2003 4.00 to 1.0
December 31, 2003 through June 29, 2004 3.50 to 1.0
June 30, 2004 and thereafter 3.00 to 1.0
----------------------------------------------------------------
(b) Interest Coverage Ratio. At all times, the Interest
-----------------------
Coverage Ratio during the following periods shall be greater than or
equal to the ratios corresponding to such periods:
----------------------------------------------------------------
Period Minimum Ratio
----------------------------------------------------------------
Closing Date through September 29, 2002 2.25 to 1.0
September 30, 2002 through June 29, 2003 2.50 to 1.0
June 30, 2003 through June 29, 2004 2.75 to 1.0
June 30, 2004 and thereafter 3.00 to 1.0
----------------------------------------------------------------
(c) Fixed Charge Coverage Ratio. At all times, the Fixed
---------------------------
Charge Coverage Ratio shall be greater than or equal to 1.15 to 1.0.
(d) Consolidated Capital Expenditures. Consolidated Capital
---------------------------------
Expenditures made in cash by the Credit Parties shall not exceed
$5,000,000 in any fiscal year.
SECTION 5.10 ADDITIONAL GUARANTORS.
---------------------
The Credit Parties will cause each of their Domestic Subsidiaries,
whether newly formed, after acquired or otherwise existing, to promptly become a
"Guarantor" hereunder by way of execution of a Joinder Agreement. The guaranty
obligations of any such Additional Credit Party shall be secured by, among other
things, all of the tangible and intangible assets of the Additional Credit Party
and a pledge of 100% of the Capital Stock of its Domestic Subsidiaries and 65%
of the voting Capital Stock and 100% of the non-voting Capital Stock of its
first-tier Foreign Subsidiaries to the extent that such pledge is permissible
under applicable law, and a pledge by the Borrower or other Credit Party which
is the owner of the Capital Stock in such Additional Credit Party of 100% of
such Capital Stock.
SECTION 5.11 COMPLIANCE WITH LAW.
-------------------
Each Credit Party will, and will cause each of its Subsidiaries to,
comply with all laws, rules, regulations and orders, and all applicable
restrictions imposed by all Governmental Authorities, applicable to it and its
property if noncompliance with any such law, rule, regulation, order or
restriction could reasonably be expected to have a Material Adverse Effect.
78
SECTION 5.12 PLEDGED ASSETS.
--------------
(a) Each Credit Party will, and will cause each of its
Subsidiaries to, cause 100% of the Capital Stock of each of its direct
or indirect Domestic Subsidiaries and 65% of the voting Capital Stock
and 100% of the non-voting Capital Stock of each of its first-tier
Foreign Subsidiaries to be subject at all times to a first priority,
perfected Lien in favor of the Administrative Agent pursuant to the
terms and conditions of the Security Documents or such other security
documents as the Administrative Agent shall reasonably request.
(b) If, subsequent to the Closing Date, a Credit Party shall
acquire any securities, instruments, chattel paper or other personal
property required for perfection to be delivered to the Administrative
Agent as Collateral hereunder or under any of the Security Documents,
the Borrower shall promptly (and in any event within three (3) Business
Days) after such acquisition notify the Administrative Agent of same.
Each Credit Party shall, and shall cause each of its Subsidiaries to,
take such action at its own expense as may be necessary or otherwise
requested by the Administrative Agent (including, without limitation,
any of the actions described in Section 4.1(c) hereof) to ensure that
the Administrative Agent has a first priority perfected Lien to secure
the Credit Party Obligations in (i) all personal property of the Credit
Parties located in the United States and (ii) to the extent deemed to
be material by the Administrative Agent or the Required Lenders in its
or their sole reasonable discretion, all other personal property of the
Credit Parties, subject in each case only to Permitted Liens. Each
Credit Party shall, and shall cause each of its Subsidiaries to, adhere
to the covenants regarding the location of personal property as set
forth in the Security Documents.
SECTION 5.13 HEDGING AGREEMENTS.
------------------
Within 90 days following the Closing Date, the Borrower shall cause at
least 50% of the outstanding principal of the Term Loans to be hedged for a
period of at least 2 years at fixed rates pursuant to Hedging Agreements with a
counterparty and on terms acceptable to the Administrative Agent.
SECTION 5.14 COVENANTS REGARDING PATENTS, TRADEMARKS AND COPYRIGHTS.
------------------------------------------------------
(a) The Borrower shall notify the Administrative Agent
promptly if it knows or has reason to know that any application,
letters patent or registration relating to any Patent, Patent License,
Trademark or Trademark License of the Borrower or any of its
Subsidiaries may become abandoned, or of any adverse determination or
development (including, without limitation, the institution of, or any
such determination or development in, any proceeding in the United
States Patent and Trademark Office or any court) regarding the
Borrower's or any of its Subsidiary's ownership of any Patent or
Trademark, its right to patent or register the same, or to enforce,
keep and maintain the same, or its rights under any Patent License or
Trademark License.
79
(b) The Borrower shall notify the Administrative Agent
promptly after it knows or has reason to know of any adverse
determination or development (including, without limitation, the
institution of, or any such determination or development in, any
proceeding in any court) regarding any Copyright or Copyright License
of the Borrower or any of its Subsidiaries, whether (i) such Copyright
or Copyright License may become invalid or unenforceable prior to its
expiration or termination, or (ii) the Borrower's or any of its
Subsidiary's ownership of such Copyright, its right to register the
same or to enforce, keep and maintain the same, or its rights under
such Copyright License, may become affected.
(c) (i) The Borrower shall promptly notify the
Administrative Agent of any filing by the Borrower or any of its
Domestic Subsidiaries, either itself or through any agent, employee,
licensee or designee (but in no event later than the fifteenth day
following such filing), of any application for registration of any
Intellectual Property with the United States Copyright Office or
United States Patent and Trademark Office or any similar office or
agency in any other country or any political subdivision thereof.
(ii) Concurrently with the delivery of quarterly and
annual financial statements of the Borrower pursuant to
Section 5.1 hereof, the Borrower shall provide to the
Administrative Agent and its counsel a complete and correct
list of all new Intellectual Property owned by or licensed to
the Borrower or any of its Domestic Subsidiaries with respect
to which the Administrative Agent has not filed a notice of
grant of security interest with the United States Patent and
Trademark Office or the United States Copyright Office or any
similar office or agency in any other country or any political
subdivision thereof, as applicable.
(iii) Upon request of the Administrative Agent, the
Borrower shall execute and deliver any and all agreements,
instruments, documents, and papers as the Administrative Agent
may reasonably request to evidence the Administrative Agent's
security interest in the Intellectual Property and the general
intangibles (including goodwill) related thereto or
represented thereby.
(d) The Borrower and its Subsidiaries will take all
necessary actions, including, without limitation, in any proceeding
before the United States Patent and Trademark Office or the United
States Copyright Office, to maintain each item of Intellectual
Property of the Borrower and its Subsidiaries, including, without
limitation, payment of maintenance fees, filing of applications for
renewal, affidavits of use, affidavits of incontestability and
opposition, interference and cancellation proceedings.
(e) In the event that any Credit Party becomes aware that
any Intellectual Property is infringed, misappropriated or diluted by
a third party in any material respect, the Borrower shall notify the
Administrative Agent promptly after it learns thereof and shall,
unless the Borrower or the relevant Subsidiary, as the case may be,
shall reasonably determine that such Intellectual Property is not
material to the business of the Borrower
80
and its Subsidiaries taken as a whole, promptly ▇▇▇ for infringement,
misappropriation or dilution and to recover any and all damages for
such infringement, misappropriation or dilution, and take such other
actions as the Borrower or such Subsidiary, as the case may be, shall
reasonably deem appropriate under the circumstances to protect such
Intellectual Property.
SECTION 5.15 LEASES; LANDLORD CONSENT LETTERS.
--------------------------------
The Credit Parties shall maintain and cause the renewal of all material
Leases (or other material leases, licenses, permits, rights of way or other
interests in real property or contractual rights which, for purposes of this
Section 5.15, shall be deemed to be within the definition of Leases) on which
any tower, transmitter, satellite, microwave relay or other property used or
useful in connection with the Broadcast Properties or the television and/or
radio broadcasting business of any Credit Party is located in full force and
effect and timely pay by the due date thereof all rentals, fees and expenses
related thereto. In the event that any such Lease is terminated, canceled or not
renewed, each Credit Party agrees to take such action, including entering into a
substitute Lease, as may be reasonably required to enable such Credit Party's
television and/or radio broadcasting business to continue in substantially the
same manner as such business was being conducted and operated prior to the
termination, cancellation or non-renewal of such Lease, and further agrees to
notify the Administrative Agent of all action taken with respect thereto. For
purposes of this Section 5.15, "material" shall be determined in the reasonable
discretion of the Administrative Agent.
SECTION 5.16 DEPOSIT AND SECURITIES ACCOUNTS.
-------------------------------
The Credit Parties shall maintain each of their deposit and securities
accounts with (a) a Lender or (b) a financial institution that has entered into
an account control agreement in form and substance satisfactory to the
Administrative Agent.
SECTION 5.17 ▇▇▇▇▇▇ PLAZA LEASE.
------------------
One or more Credit Parties shall continue to lease a portion of ▇▇▇▇▇▇
Plaza during 2002 and 2003 in accordance with the terms of the ▇▇▇▇▇▇ Plaza
Lease as in effect on the Closing Date.
SECTION 5.18 WHOLLY-OWNED SUBSIDIARIES.
-------------------------
Each Subsidiary of a Credit Party (other than a Subsidiary that is a
joint venture permitted by the terms of this Credit Agreement) shall be
wholly-owned by such Credit Party.
SECTION 5.19 POST-CLOSING REQUIREMENT.
------------------------
The Borrower shall promptly (and in any event within 30 days after the
Closing Date) deliver to the Administrative Agent copies of certificates of good
standing, existence or its equivalent with respect to each Credit Party
certified as of a recent date by the appropriate
81
Governmental Authorities of each state (other than its state of incorporation or
organization) in which such Credit Party is qualified to do business.
ARTICLE VI
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that on the Closing Date,
and thereafter for so long as this Credit Agreement is in effect and until (a)
the Commitments have terminated, (b) all Letters of Credit have expired or been
surrendered to the Issuing Lender, (c) no Note remains outstanding and unpaid
and (d) the Credit Party Obligations, together with interest, Commitment Fees
and all other amounts owing to the Agent or any Lender hereunder, are paid in
full, such Credit Party shall, and shall cause each of its Subsidiaries, to
comply with the following covenants:
SECTION 6.1 INDEBTEDNESS.
------------
The Credit Parties will not contract, create, incur, assume or permit
to exist any Indebtedness, except:
(a) Indebtedness arising or existing under this Credit
Agreement and the other Credit Documents;
(b) Indebtedness existing as of the Closing Date as
referenced in the financial statements referenced in Section 3.1(a)
(and set out more specifically in Schedule 6.1(b)) hereto and
---------------
renewals, refinancings or extensions thereof in a principal amount
not in excess of that outstanding as of the date of such renewal,
refinancing or extension;
(c) Indebtedness incurred after the Closing Date consisting
of Capital Leases or Indebtedness incurred to provide all or a
portion of the purchase price or cost of construction of an asset,
and renewals, refinancings or extensions thereof in a principal
amount not in excess of the principal amount outstanding as of the
date of any such renewal, refinancing or extension; provided that (i)
such Indebtedness when incurred shall not exceed the purchase price
or cost of construction of such asset; and (ii) the total amount of
all such Indebtedness shall not exceed $2,000,000 at any time
outstanding;
(d) Indebtedness and obligations owing under Hedging
Agreements relating to the Loans hereunder and other Hedging Agreements
entered into in order to manage existing or anticipated interest rate
or exchange rate risks and not for speculative purposes;
(e) Indebtedness and obligations of Credit Parties owing
under documentary letters of credit for the purchase of goods or
other merchandise (but not under standby, direct pay or other letters
of credit except for the Letters of Credit hereunder) generally;
82
(f) unsecured Indebtedness owing by a Credit Party to
another Credit Party; provided that any such Indebtedness shall be
--------
fully subordinated to the Credit Party Obligations pursuant to the
terms of the Subordination Agreement; and
(g) other unsecured Indebtedness of Credit Parties which
does not exceed $2,500,000 in the aggregate at any time outstanding.
SECTION 6.2 LIENS.
-----
The Credit Parties will not contract, create, incur, assume or permit
to exist any Lien with respect to any of their respective property or assets of
any kind (whether real or personal, tangible or intangible), whether now owned
or hereafter acquired, except for Permitted Liens. Notwithstanding the
foregoing, if a Credit Party shall ▇▇▇▇▇ ▇ ▇▇▇▇ on any of its assets in
violation of this Section 6.2, then it shall be deemed to have simultaneously
granted an equal and ratable Lien on any such assets in favor of the
Administrative Agent for the benefit of the Lenders, to the extent such a Lien
has not already been granted to the Administrative Agent.
SECTION 6.3 GUARANTY OBLIGATIONS.
--------------------
The Credit Parties will not enter into or otherwise become or be liable
in respect of any Guaranty Obligations (excluding specifically therefrom
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection) other than (i) those in favor of the Lenders in
connection herewith, (ii) guaranties given by the Borrower or any of its
Subsidiaries or by the Borrower or any of its Subsidiaries in favor of the
Borrower or any such Subsidiary in connection with obligations not constituting
Indebtedness including real property leases and other contracts entered into in
the ordinary course of business and (iii) Guaranty Obligations by the Credit
Parties permitted under Section 6.1 (except, as regards Indebtedness under
subsection (b) thereof, only if and to the extent such Indebtedness was
guaranteed on the Closing Date).
SECTION 6.4 NATURE OF BUSINESS.
------------------
The Credit Parties will not alter the character of their business in
any material respect from that conducted as of the Closing Date.
SECTION 6.5 CONSOLIDATION, MERGER, SALE OR PURCHASE OF ASSETS, ETC.
------------------------------------------------------
No Credit Party shall:
(a) dissolve, liquidate or wind up its affairs, sell,
transfer, lease or otherwise dispose of its property or assets or agree
to do so at a future time except the following, without duplication,
shall be expressly permitted:
(i) Specified Sales;
83
(ii) the disposition of property or assets as a
result of a Recovery Event to the extent the net proceeds
therefrom are used to repay Loans pursuant to Section 2.8(b)
or repair or replace damaged property or to purchase or
otherwise acquire new assets or property, provided that such
--------
purchase or acquisition is consummated within 270 days of such
receipt;
(iii) the sale, lease or transfer of property or
assets from a Credit Party to another Credit Party (including
the liquidation or consolidation of any Credit Party (other
than the Borrower) into another Credit Party);
(iv) the sale of the Television Stations WFXG-TV in
Augusta, Georgia and WXTX-TV located in Columbus, Georgia;
(v) the contribution of certain assets by the
Television Station KIDK-TV in Idaho Falls, Idaho to a joint
venture (or similar entity or arrangement) with the American
Broadcasting Company, Inc. affiliate located in Idaho Falls,
Idaho on terms acceptable to the Administrative Agent;
provided that the Administrative Agent, on behalf of the
--------
Lenders, shall be granted a security interest in, or Lien on,
the equity or contractual interests held by the Credit Parties
in such joint venture (or similar entity or arrangement) on
terms acceptable to the Administrative Agent; and
(vi) the sale of two (2) parcels of real property in
Coos Bay, Oregon following the relocation of Station KCBY to
its new studio;
provided, that, (A) with respect to clauses (i) and (ii) above (other
--------
than Specified Sales consisting of trade-ins of vehicles or equipment),
at least 75% of the consideration received therefor by the applicable
Credit Party shall be in the form of cash or Cash Equivalents and (B)
with respect to clause (iv) above, 100% of the consideration received
therefor by the applicable Credit Party shall be in the form of cash or
Cash Equivalents; or
(b) purchase, lease or otherwise acquire (in a single
transaction or a series of related transactions) the property or assets
of any Person (other than purchases or other acquisitions of inventory,
leases, materials, property and equipment in the ordinary course of
business, except as otherwise limited or prohibited herein), or enter
into any transaction of merger or consolidation, except for (i)
Investments or acquisitions permitted pursuant to Section 6.6, (ii)
Permitted Acquisitions and (iii) the merger or consolidation of the
Borrower or one of its Subsidiaries with and into a Credit Party;
provided that if the Borrower is a party thereto, the Borrower will be
--------
the surviving corporation.
84
SECTION 6.6 ADVANCES, INVESTMENTS AND LOANS.
-------------------------------
The Credit Parties will not lend money or extend credit or make
advances to any Person, or purchase or acquire any Capital Stock, obligations or
securities of, or any other interest in, or make any capital contribution to,
any Person except for Permitted Investments.
SECTION 6.7 TRANSACTIONS WITH AFFILIATES; ALLOCATION OF OVERHEAD.
----------------------------------------------------
(a) The Credit Parties will not enter into any transaction
or series of transactions, whether or not in the ordinary course of
business, with any officer, director, shareholder or Affiliate other
than on terms and conditions substantially as favorable as would be
obtainable in a comparable arm's-length transaction with a Person other
than an officer, director, shareholder or Affiliate, except that any
Credit Party may (i) lease or continue to lease all or a portion of
▇▇▇▇▇▇ Plaza from ▇▇▇▇▇▇ Media Services Company so long as (A) the rent
and other fees and expenses due and payable pursuant to such lease
during 2002 and 2003 comply with the terms of Section 5.17 and (B) the
rent and other fees and expenses due and payable pursuant to such lease
after 2003 do not exceed the Fair Market Rental Rate for such portion
of ▇▇▇▇▇▇ Plaza; (ii) continue to provide technology services to
Affiliates on a direct-cost basis; and (iii) in addition to those
transactions permitted under clauses (i) and (ii), enter into other
transactions with Affiliates which are not arms' length transactions so
long as the value of such transactions does not exceed $250,000 in any
calendar year.
(b) The Parent and the Credit Parties will not modify in any
material respect the allocation of overhead between or among the Parent
and its Subsidiaries (other than the Credit Parties) and the Borrower
and its Subsidiaries from the manner in which such overhead is
allocated as of the Closing Date.
SECTION 6.8 OWNERSHIP OF SUBSIDIARIES; RESTRICTIONS.
---------------------------------------
The Credit Parties will not create, form or acquire any Subsidiaries,
except for Domestic Subsidiaries which are joined as Additional Credit Parties
in accordance with the terms hereof. The Credit Parties will not sell, transfer,
pledge or otherwise dispose of any Capital Stock or other equity interests in
any of its Subsidiaries, nor will they permit any of their Subsidiaries to
issue, sell, transfer, pledge or otherwise dispose of any of their Capital Stock
or other equity interests, except in a transaction permitted by Section 6.5(a).
SECTION 6.9 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS; MATERIAL
-----------------------------------------------
CONTRACTS.
---------
The Borrower will not, nor will it permit any of its Subsidiaries to,
change its fiscal year. None of the Credit Parties will amend, modify or change
its articles of incorporation (or corporate charter or other similar
organizational document) or bylaws (or other similar document) or operating
agreement in any respect adverse to the Lenders without the prior written
consent of the Required Lenders. None of the Credit Parties will, without the
prior written consent of the Administrative Agent, amend, modify, cancel or
terminate or fail to renew or
85
extend or permit the amendment, modification, cancellation or termination of
any of the Material Contracts, except in the event that such amendments,
modifications, cancellations or terminations could not reasonably be expected to
have a Material Adverse Effect.
SECTION 6.10 LIMITATION ON RESTRICTED ACTIONS.
--------------------------------
The Credit Parties will not, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such Person to (a) pay dividends or make any
other distributions to any Credit Party on its Capital Stock or with respect to
any other interest or participation in, or measured by, its profits, (b) pay any
Indebtedness or other obligation owed to any Credit Party, (c) make loans or
advances to any Credit Party, (d) sell, lease or transfer any of its properties
or assets to any Credit Party, or (e) act as a Guarantor and pledge its assets
pursuant to the Credit Documents or any renewals, refinancings, exchanges,
refundings or extension thereof, except (in respect of any of the matters
referred to in clauses (a)-(d) above) for such encumbrances or restrictions
existing under or by reason of (i) this Credit Agreement and the other Credit
Documents, (ii) applicable law, (iii) any document or instrument governing
Indebtedness incurred pursuant to Section 6.1(c), provided that any such
--------
restriction contained therein relates only to the asset or assets constructed or
acquired in connection therewith or (iv) any Permitted Lien or any document or
instrument governing any Permitted Lien, provided that any such restriction
--------
contained therein relates only to the asset or assets subject to such Permitted
Lien.
SECTION 6.11 RESTRICTED PAYMENTS.
-------------------
The Credit Parties will not, directly or indirectly, declare, order,
make or set apart any sum for or pay any Restricted Payment, except (a) to make
dividends payable solely in the same class of Capital Stock of such Person, (b)
to make dividends or other distributions payable to the Borrower (directly or
indirectly through its Subsidiaries), and (c) to make cash dividends or other
distributions so long as the Leverage Ratio (as set forth in the most recent
officer's certificate delivered pursuant to Section 5.2(b)) is less than or
equal to 3.50 to 1.0 both before and after giving pro forma effect thereto and
no Default or Event of Default shall have occurred and be continuing both before
and after giving pro forma effect thereto; provided that the Borrower may make a
--------
cash dividend payment to the Parent on or immediately after the Closing Date
without complying with the requirements set forth in this subsection (c) so long
as (i) such dividend payment does not exceed $127,573,101.63 and (ii) the
proceeds of such dividend payment are used by the Parent to repay or refinance
existing Indebtedness.
SECTION 6.12 PREPAYMENTS OF INDEBTEDNESS, ETC.
--------------------------------
The Credit Parties will not, after the issuance thereof, amend or
modify (or permit the amendment or modification of) any of the terms of any
Indebtedness if such amendment or modification would add or change any terms in
a manner adverse to the issuer of such Indebtedness or to the Lenders, or
shorten the final maturity or average life to maturity or require any payment to
be made sooner than originally scheduled or increase the interest rate
applicable thereto or change any subordination provision thereof.
86
SECTION 6.13 SALE LEASEBACKS.
---------------
The Credit Parties will not, directly or indirectly, become or remain
liable as lessee or as guarantor or other surety with respect to any lease,
whether an operating lease or a Capital Lease, of any property (whether real,
personal or mixed), whether now owned or hereafter acquired, (a) which any
Credit Party has sold or transferred or is to sell or transfer to a Person which
is not another Credit Party or (b) which any Credit Party intends to use for
substantially the same purpose as any other property which has been sold or is
to be sold or transferred by such Credit Party to another Person which is not
another Credit Party in connection with such lease.
SECTION 6.14 NO FURTHER NEGATIVE PLEDGES.
---------------------------
The Credit Parties will not enter into, assume or become subject to any
agreement prohibiting or otherwise restricting the creation or assumption of any
Lien upon its properties or assets, whether now owned or hereafter acquired, or
requiring the grant of any security for such obligation if security is given for
some other obligation, except (a) pursuant to this Credit Agreement and the
other Credit Documents and (b) pursuant to any document or instrument governing
Indebtedness incurred pursuant to Section 6.1(c), provided that any such
--------
restriction contained therein relates only to the asset or assets constructed or
acquired in connection therewith and (c) in connection with any Permitted Lien
or any document or instrument governing any Permitted Lien, provided that any
--------
such restriction contained therein relates only to the asset or assets subject
to such Permitted Lien.
SECTION 6.15 FCC LICENSES.
------------
On or after the 90/th/ day following the Closing Date, the Borrower
shall not directly own or hold any FCC License.
SECTION 6.16 ACTIVITIES OF THE PARENT.
------------------------
The Parent shall not (a) hold or incur any Indebtedness (other than
Permitted Parent Debt), (b) grant any Liens (other than Permitted Parent Liens)
upon any of its properties or assets or (c) engage in any operations, business
or activity other than (i) holding the Capital Stock of its Subsidiaries, (ii)
issuing its Capital Stock and making dividends and other distributions on its
Capital Stock, and (iii) administrative activities in the ordinary course of
business.
87
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.1 EVENTS OF DEFAULT.
-----------------
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
----------------
(a) Payment Default. The Borrower shall fail to pay any
---------------
principal on any Loan or Note when due (whether at maturity, by reason
of acceleration or otherwise) in accordance with the terms thereof or
hereof; or the Borrower shall fail to reimburse the Issuing Lender for
any LOC Obligations when due (whether at maturity, by reason of
acceleration or otherwise) in accordance with the terms hereof; or the
Borrower shall fail to pay any interest on any Loan or Note or any fee
or other amount payable hereunder when due (whether at maturity, by
reason of acceleration or otherwise) in accordance with the terms
thereof or hereof and such failure shall continue unremedied for three
(3) Business Days (or any Guarantor shall fail to pay on the Guaranty
in respect of any of the foregoing or in respect of any other Guaranty
Obligations thereunder).
(b) Misrepresentation. Any representation or warranty made
-----------------
or deemed made herein, in the Security Documents or in any of the
other Credit Documents or which is contained in any certificate,
document or financial or other statement furnished at any time under or
in connection with this Credit Agreement shall prove to have been
incorrect, false or misleading in any material respect on or as of the
date made or deemed made.
(c) Covenant Default. (i) Any Credit Party shall fail to
----------------
perform, comply with or observe any term, covenant or agreement
applicable to it contained in Sections 5.1, 5.2, 5.4, 5.7, 5.9, 5.11,
5.13 or Article VI hereof; (ii) the Parent shall violate the terms of
Sections 6.7(b) or 6.16, or (iii) any Credit Party shall fail to comply
with any other covenant, contained in this Credit Agreement or the
other Credit Documents or any other agreement, document or instrument
among any Credit Party, the Administrative Agent and the Lenders or
executed by any Credit Party in favor of the Administrative Agent or
the Lenders (other than as described in Sections 7.1(a) or 7.1(c)(i)
and (ii) above), and such breach or failure to comply is not cured
within thirty (30) days of its occurrence, or if such breach is curable
but cannot be cured within thirty (30) days, then the Borrower has
commenced to cure the breach within thirty (30) days, diligently
pursues such cure thereafter and completes such cure within sixty (60)
days.
(d) Debt Cross-Default. Any Credit Party shall (i) default
------------------
in any payment of principal of or interest on any Indebtedness (other
than the Loans, Reimbursement Obligations and the Guaranty) in a
principal amount outstanding of at least $1,000,000 for the Borrower
and any of its Subsidiaries in the aggregate beyond any applicable
grace period (not to exceed 30 days), if any, provided in the
instrument or agreement under
88
which such Indebtedness was created; or (ii) default in the
observance or performance of any other agreement or condition
relating to any Indebtedness (other than the Loans, Reimbursement
Obligations and the Guaranty) in a principal amount outstanding of at
least $1,000,000 in the aggregate for the Borrower and its
Subsidiaries or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Indebtedness (or
a trustee or agent on behalf of such holder or holders or beneficiary
or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to become due prior to its stated maturity.
(e) Other Cross-Defaults. The Borrower or any of its
--------------------
Subsidiaries shall default in (i) the payment when due under any
Material Contract or (ii) in the performance or observance of any
obligation or condition of any Material Contract and such failure to
perform or observe such other obligation or condition continues
unremedied for a period of thirty (30) days after notice of, or
knowledge of the Borrower or any of its Subsidiaries of, the occurrence
of such default unless, but only as long as, the existence of any such
default is being contested by the Borrower or such Subsidiary in good
faith by appropriate proceedings and adequate reserves in respect
thereof have been established on the books of the Borrower or such
Subsidiary to the extent required by GAAP.
(f) Bankruptcy Default. (i) The Parent, the Borrower or any
------------------
of the Borrower's Subsidiaries shall commence any case, proceeding or
other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization
or relief of debtors, seeking to have an order for relief entered with
respect to it, or seeking to have it judged bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to
it or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or
any substantial part of its assets, or the Borrower or any of its
Subsidiaries shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against the Parent, the
Borrower or any of the Borrower's Subsidiaries any case, proceeding or
other action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a
period of 60 days; or (iii) there shall be commenced against the
Parent, the Borrower or any of the Borrower's Subsidiaries any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial
part of its assets which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (iv)
the Parent, the Borrower or any of the Borrower's Subsidiaries shall
take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii) or (iii) above; (v) the Parent shall generally not, or shall
be unable to, or shall admit in writing its inability to, pay its debts
as they become due; or (vi) the Borrower and its Subsidiaries on a
89
consolidated basis shall generally not, or shall be unable to, or shall
admit in writing their inability to, pay their debts as they become
due.
(g) Judgment Default. One or more judgments, orders, decrees
----------------
or arbitration awards shall be entered against the Borrower or any of
its Subsidiaries involving in the aggregate a liability (to the extent
not paid when due or covered by insurance) of $500,000 or more and all
such judgments, orders, decrees or arbitration awards shall not have
been paid and satisfied, vacated, discharged, stayed or bonded pending
appeal within 30 days from the entry thereof.
(h) ERISA Default. (i) Any Person shall engage in any
-------------
"prohibited transaction" (as defined in Section 406 of ERISA or Section
4975 of the Code) involving any Plan, (ii) any "accumulated funding
deficiency" (as defined in Section 302 of ERISA), whether or not
waived, shall exist with respect to any Plan or any Lien in favor of
the PBGC or a Plan (other than a Permitted Lien) shall arise on the
assets of the Borrower, any of its Subsidiaries or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect
to, or proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate, any Single
Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a Trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Borrower, any of its
Subsidiaries or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Lenders is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, any Multiemployer Plan or (vi) any other similar
event or condition shall occur or exist with respect to a Plan; and in
each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, is
reasonably likely to have a Material Adverse Effect.
(i) Change of Control. A Change of Control shall have
-----------------
occurred.
(j) Failure of Credit Documents. This Credit Agreement
---------------------------
(including the Guaranty) or any other Credit Document or any provision
hereof or thereof shall cease to be in full force and effect or to give
the Administrative Agent and/or the Lenders the security interests,
liens, rights, powers and privileges purported to be created thereby,
or any Credit Party or any Person acting by or on behalf of any Credit
Party shall deny or disaffirm such Person's obligations under this
Credit Agreement or any other Credit Document.
(k) Hedging Agreement. Any termination payment shall be due
-----------------
by a Credit Party under any Hedging Agreement and such amount is not
paid within the later to occur of five (5) Business Days after the due
date thereof or the expiration of grace periods, if any, in such
Hedging Agreement.
90
(l) Loss of License or Consent. Any Material FCC License
--------------------------
or Material PUC Authorization of the Borrower or any of its
Subsidiaries shall be revoked, suspended, canceled, otherwise
terminated or fail to be renewed.
(m) Interruption of Network Programs. Any refusal or
--------------------------------
failure by any Network under any Affiliation Agreement or its
affiliates to offer or deliver to the Borrower or any of its
Subsidiaries network programs, or any interruption in the delivery of
such network programs, as the result of any default by the Borrower or
any of its Subsidiaries under the Affiliation Agreement; and any
termination or failure to renew (together with the failure by the
Network to provide service in accordance with such terminated or
expired Affiliation Agreement), or any failure or refusal by the
Network to provide service under, the Affiliation Agreement or any
successor agreement, if such agreement is not replaced within 60 days
of such termination or expiration by a new affiliation agreement with
another Network reasonably acceptable to the Required Lenders or
service is not resumed within 60 days, as applicable.
(n) Interruption of Broadcasting. Any Station shall cease
----------------------------
broadcasting for a period of 30 days or more, except to the extent the
earnings from such Station are adequately covered by business
interruption insurance during such period or if other television
stations or radio stations, as applicable, operating in the same market
as such Station shall also have ceased to broadcast during such period.
SECTION 7.2 ACCELERATION; REMEDIES.
----------------------
Upon the occurrence and during the continuation of an Event of Default,
then, and in any such event, (a) if such event is an Event of Default specified
in Section 7.1(f) above, (i) automatically the Commitments shall immediately
terminate and the Loans (with accrued interest thereon), and all other amounts
under the Credit Documents (including without limitation the maximum amount of
all contingent liabilities under Letters of Credit) shall immediately become due
and payable, and the Borrower shall immediately pay to the Administrative Agent
cash collateral as security for the LOC Obligations for subsequent drawings
under then outstanding Letters of Credit in an amount equal to the maximum
amount which may be drawn under Letters of Credit then outstanding and (ii) the
Administrative Agent may exercise on behalf of the Lenders all of its other
rights and remedies under this Credit Agreement, the other Credit Documents and
applicable law, (b) if such event is any other Event of Default, subject to the
terms of Section 8.5, with the written consent of the Required Lenders, the
Administrative Agent may, or upon the written request of the Required Lenders,
the Administrative Agent shall, take any or all of the following actions: (i) by
notice to the Borrower declare the Commitments to be terminated forthwith,
whereupon the Commitments shall immediately terminate; (ii) by notice of default
to the Borrower declare the Loans (with accrued interest thereon) and all other
amounts owing under this Credit Agreement and the Notes to be due and payable
forthwith and direct the Borrower to pay to the Administrative Agent cash
collateral as security for the LOC Obligations for subsequent drawings under
then outstanding Letters of Credit in an amount equal to the maximum amount of
which may be drawn under Letters of Credit then outstanding, whereupon the same
shall immediately become due and payable; and/or (iii) exercise on behalf of the
91
Lenders all of its other rights and remedies under this Credit Agreement, the
other Credit Documents and applicable law, and (c) the Administrative Agent
shall have the right to hire, at the expense of the Credit Parties, one or more
consultants and the Credit Parties agree to cooperate with such consultants.
Except as expressly provided above in this Section 7.2, presentment, demand,
protest and all other notices of any kind are hereby expressly waived by the
Credit Parties.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.1 APPOINTMENT.
-----------
Each Lender hereby irrevocably designates and appoints First Union as
the Administrative Agent of such Lender under this Credit Agreement, and each
such Lender irrevocably authorizes First Union, as the Administrative Agent for
such Lender, to take such action on its behalf under the provisions of this
Credit Agreement and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Credit
Agreement, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Credit
Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Credit Agreement or otherwise exist against the Administrative Agent.
SECTION 8.2 DELEGATION OF DUTIES.
--------------------
The Administrative Agent may execute any of its duties under this
Credit Agreement by or through agents or attorneys-in-fact and shall be entitled
to advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care. Without
limiting the foregoing, the Administrative Agent may appoint one of its
affiliates as its agent to perform the functions of the Administrative Agent
hereunder relating to the advancing of funds to the Borrower and distribution of
funds to the Lenders and to perform such other related functions of the
Administrative Agent hereunder as are reasonably incidental to such functions.
SECTION 8.3 EXCULPATORY PROVISIONS.
----------------------
Neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact, Subsidiaries or affiliates shall be (a)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection with this Credit Agreement (except for its or such
Person's own gross negligence or willful misconduct) or (b) responsible in any
manner to any of the Lenders for any recitals, statements, representations or
warranties made by any Credit Party or any officer thereof contained in this
Credit Agreement or in any certificate,
92
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Credit Agreement
or for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of any of the Credit Documents or for any failure of any Credit
Party to perform its obligations hereunder or thereunder. The Administrative
Agent shall not be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance by any Credit Party of any of the agreements
contained in, or conditions of, this Credit Agreement, or to inspect the
properties, books or records of any Credit Party.
SECTION 8.4 RELIANCE BY ADMINISTRATIVE AGENT.
--------------------------------
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it in
good faith to be genuine and correct and to have been signed, sent or made by
the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Credit Parties), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless an executed Commitment Transfer Supplement has
been filed with the Administrative Agent pursuant to Section 9.6(c) with respect
to the Loans evidenced by such Note. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Credit Agreement
unless it shall first receive such advice or concurrence of the Required Lenders
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under any of the Credit Documents in accordance with a request of the
Required Lenders or all of the Lenders, as may be required under this Credit
Agreement, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Notes.
SECTION 8.5 NOTICE OF DEFAULT.
-----------------
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or the Borrower referring
to this Credit Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
prompt notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders; provided, however, that unless and until the
-------- -------
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders except to the extent that
this Credit Agreement expressly requires that such action be taken, or not
taken, only with the consent or upon the authorization of the Required Lenders,
or all of the Lenders, as the case may be.
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SECTION 8.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER
----------------------------------------------
LENDERS.
-------
Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or affiliates has made any representation or warranty to it and that no act by
the Administrative Agent hereinafter taken, including any review of the affairs
of any Credit Party, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
the Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower or any other Credit Party and
made its own decision to make its Loans hereunder and enter into this Credit
Agreement. Each Lender also represents that it will, independently and without
reliance upon 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 analysis, appraisals and decisions in taking or not taking
action under this Credit Agreement, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, financial
and other condition and creditworthiness of the Borrower and the other Credit
Parties. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
the Borrower or any other Credit Party which may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
SECTION 8.7 INDEMNIFICATION.
---------------
The Lenders agree to indemnify the Agent in its capacity hereunder (to
the extent not reimbursed by the Borrower and without limiting the obligation of
the Borrower to do so), ratably according to their respective Commitment
Percentages in effect on the date on which indemnification is sought under this
Section, from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Notes or any Reimbursement Obligation) be
imposed on, incurred by or asserted against the Agent in any way relating to or
arising out of any Credit Document or any documents contemplated by or referred
to herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Agent under or in connection with any of the
foregoing; provided, however, that no Lender shall be liable for the payment of
-------- -------
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements to the extent
resulting from the Agent's gross negligence or willful misconduct, as determined
by a court of competent jurisdiction. The agreements in this Section 8.7 shall
survive the termination of this Credit Agreement and payment of the Notes, any
Reimbursement Obligation and all other amounts payable hereunder.
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SECTION 8.8 THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
---------------------------------------------------
The Administrative Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower and
the other Credit Parties as though the Administrative Agent were not the
Administrative Agent hereunder. With respect to the Loans made or renewed by it
and any Note issued to it, the Administrative Agent shall have the same rights
and powers under this Credit Agreement as any Lender and may exercise the same
as though it were not the Administrative Agent, and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its individual capacity.
SECTION 8.9 SUCCESSOR ADMINISTRATIVE AGENT.
------------------------------
The Administrative Agent may resign as Administrative Agent upon 30
days' prior written notice to the Borrower and the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Credit
Agreement and the other Credit Documents, then the Required Lenders shall
appoint from among the Lenders a successor administrative agent for the Lenders,
which successor agent shall be approved by the Borrower (such approval not to be
unreasonably withheld) so long as no Default or Event of Default has occurred
and is continuing, whereupon such successor administrative agent shall succeed
to the rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor administrative agent effective
upon such appointment and approval, and the former Administrative Agent's
rights, powers and duties as Administrative Agent shall be terminated, without
any other or further act or deed on the part of such former Administrative Agent
or any of the parties to this Credit Agreement or any holders of the Notes. If
no successor Administrative Agent has accepted appointment as Administrative
Agent within thirty (30) days after the retiring Administrative Agent's giving
notice of resignation, the retiring Administrative Agent shall have the right,
on behalf of the Lenders, to appoint a successor administrative agent, which
successor shall be approved by the Borrower (such approval not to be
unreasonably withheld) so long as no Default or Event of Default has occurred
and is continuing, provided that such successor administrative agent has minimum
capital and surplus of at least $500,000,000. If no successor administrative
agent has accepted appointment as Administrative Agent within sixty (60) days
after the retiring Administrative Agent's giving notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless become effective
and the Lenders shall perform all duties of the Administrative Agent hereunder
until such time, if any, as the Required Lenders appoint a successor
administrative agent as provided for above. After any retiring Administrative
Agent's resignation as Administrative Agent, the indemnification provisions of
this Credit Agreement and the other Credit Documents and the provisions of this
Article VIII shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Credit Agreement.
SECTION 8.10 OTHER AGENTS.
------------
Each of the Co-Syndication Agents and the Documentation Agent shall
have no duties or obligations, and thus no liabilities, in its capacity as a
Co-Syndication Agent or the
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Documentation Agent, as applicable, under this Credit Agreement and the other
Credit Documents.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 AMENDMENTS, WAIVERS AND RELEASE OF COLLATERAL.
---------------------------------------------
Neither this Credit Agreement, nor any of the Notes, nor any of the
other Credit Documents, nor any terms hereof or thereof may be amended,
supplemented, waived or modified except in accordance with the provisions of
this Section nor may the Borrower or any Guarantor be released except in
accordance with the provisions of this Section 9.1. The Required Lenders may,
or, with the written consent of the Required Lenders, the Administrative Agent
may, from time to time, (a) enter into with the Borrower or any other Credit
Party written amendments, supplements or modifications hereto and to the other
Credit Documents for the purpose of adding any provisions to this Credit
Agreement or the other Credit Documents or changing in any manner the rights of
the Lenders or of the Borrower or any other Credit Party hereunder or thereunder
or (b) waive, on such terms and conditions as the Required Lenders may specify
in such instrument, any of the requirements of this Credit Agreement or the
other Credit Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, waiver,
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supplement, modification or release shall:
(i) reduce the amount or extend the scheduled
date of maturity of any Loan or Note or any installment
thereon, or reduce the stated rate of any interest or fee
payable hereunder (other than any decision to charge or not
charge any default rate of interest pursuant to Section 2.10)
or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any
Lender's Commitment, in each case without the written consent
of each Lender directly affected thereby, or
(ii) amend, modify or waive any provision of this
Section 9.1 or reduce the percentage specified in the
definition of Required Lenders, without the written consent of
all the Lenders, or
(iii) amend, modify or waive any right or duty of
the Administrative Agent (including, without limitation, any
provision of Article VIII) or the Issuing Lender under any
Credit Document without the written consent of the then
Administrative Agent or the Issuing Lenders, as applicable, or
(iv) release the Borrower or any material
Guarantor from their obligations hereunder or under the
Guaranty, without the written consent of all of the Lenders,
or
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(v) release any material portion of the
Collateral without the written consent of all of the Lenders,
or
(vi) subordinate the Loans to any other
Indebtedness without the written consent of all of the
Lenders; or
(vii) permit the Borrower to assign or transfer any
of its rights or obligations under this Credit Agreement or
other Credit Documents.
Any such waiver, any such amendment, supplement or modification and any
such release shall apply equally to each of the Lenders and shall be binding
upon the Borrower, the other Credit Parties, the Lenders, the Administrative
Agent and all future holders of the Notes. In the case of any waiver, the
Borrower, the other Credit Parties, the Lenders and the Administrative Agent
shall be restored to their former position and rights hereunder and under the
outstanding Loans and Notes and other Credit Documents, and any Default or Event
of Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
Notwithstanding any of the foregoing to the contrary, the consent of
the Borrower shall not be required for any amendment, modification or waiver of
the provisions of Article VIII (other than the provisions of Section 8.9);
provided, however, that the Administrative Agent will provide written notice to
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the Borrower of any such amendment, modification or waiver. In addition, the
Borrower and the Lenders hereby authorize the Administrative Agent to modify
this Credit Agreement by unilaterally amending or supplementing Schedule 2.1(a)
---------------
from time to time in the manner requested by the Borrower, the Administrative
Agent or any Lender in order to reflect any assignments or transfers of the
Loans as provided for hereunder; provided, however, that the Administrative
-------- -------
Agent shall promptly deliver a copy of any such modification to the Borrower and
each Lender.
Notwithstanding the fact that the consent of all the Lenders is
required in certain circumstances as set forth above, (x) each Lender is
entitled to vote as such Lender sees fit on any bankruptcy reorganization plan
that affects the Loans, and each Lender acknowledges that the provisions of
Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent
provisions set forth herein and (y) the Required Lenders may consent to allow a
Credit Party to use cash collateral in the context of a bankruptcy or insolvency
proceeding.
SECTION 9.2 NOTICES.
-------
Except as otherwise provided in Article II, all notices, requests and
demands to or upon the respective parties hereto to be effective shall be in
writing (including by telecopy), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made (a) when delivered by
hand, (b) when transmitted via telecopy (or other facsimile device) to the
number set out herein, (c) the day following the day on which the same has been
delivered prepaid to a reputable national overnight air courier service, or (d)
the third Business Day following the day on which the same is sent by certified
or registered mail, postage prepaid, in
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each case, addressed as follows in the case of the Borrower, the other Credit
Parties and the Administrative Agent, and as set forth on Schedule 9.2 in the
------------
case of the Lenders, or to such other address as may be hereafter notified by
the respective parties hereto and any future holders of the Notes:
The Borrower and the other
Credit Parties: ▇▇▇▇▇▇ Broadcasting Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Secretary
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ & ▇▇▇▇ PC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇(▇▇) ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
The Administrative Agent: First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇/▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndication Agency Services
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
provided, that notices given by the Borrower pursuant to Section 2.1 or Section
--------
2.11 hereof shall be effective only upon receipt thereof by the Administrative
Agent.
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SECTION 9.3 NO WAIVER; CUMULATIVE REMEDIES.
------------------------------
No failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
SECTION 9.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
------------------------------------------
All representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Credit Agreement and the Notes
and the making of the Loans, provided that all such representations and
--------
warranties shall terminate on the date upon which the Commitments have been
terminated and all amounts owing hereunder and under any Notes have been paid in
full.
SECTION 9.5 PAYMENT OF EXPENSES AND TAXES.
-----------------------------
The Borrower agrees (a) to pay or reimburse each of the Administrative
Agent, Bank of America and the Arrangers for all reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation,
negotiation, printing and execution of, and any amendment, supplement or
modification to, this Credit Agreement and the other Credit Documents and any
other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and
thereby, together with the reasonable fees and disbursements of counsel to each
of the Administrative Agent, Bank of America and the Arrangers, (b) to pay or
reimburse each of the Lenders and the Administrative Agent for all its
reasonable costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Credit Agreement, the Notes and any such
other documents, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent and to the Lenders
(including reasonable allocated costs of in-house legal counsel) and the
reasonable fees and disbursements of any consultant hired by the Administrative
Agent pursuant to Section 7.2(c), and (c) on demand, to pay, indemnify, and hold
each of the Lenders, the Administrative Agent and the Arrangers harmless from,
any and all recording and filing fees and any and all liabilities with respect
to, or resulting from any delay in paying stamp, excise and other similar taxes,
if any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, the Credit Documents and any
such other documents, and (d) to pay, indemnify, and hold each Lender, the
Administrative Agent, the Arrangers and their respective Affiliates harmless
from and against, any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of the Credit Documents and any such other
99
documents and the use, or proposed use, of proceeds of the Loans (all of the
foregoing, collectively, the "indemnified liabilities"); provided, however, that
----------------------- -------- -------
the Borrower shall not have any obligation hereunder to a Lender, the
Administrative Agent, an Arranger, or any of their respective Affiliates to the
extent such indemnified liabilities arise from the gross negligence or willful
misconduct of such Lender, the Administrative Agent, such Arranger or such
Affiliate, as applicable, as determined by a court of competent jurisdiction
pursuant to a final non-appealable judgment. The agreements in this Section 9.5
shall survive repayment of the Loans, Notes and all other amounts payable
hereunder.
SECTION 9.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS; PURCHASING
--------------------------------------------------
LENDERS.
-------
(a) This Credit Agreement shall be binding upon and inure
to the benefit of the Borrower, the Lenders, the Administrative Agent,
all future holders of the Notes and their respective successors and
assigns, except that the Borrower may not assign or transfer any of
its rights or obligations under this Credit Agreement or the other
Credit Documents without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable law, at
any time sell to one or more banks or other entities ("Participants")
------------
participating interests in any Loan owing to such Lender, any Note
held by such Lender, any Commitment of such Lender, or any other
interest of such Lender hereunder, in each case in minimum amounts of
$1,000,000 (or, if less, the entire amount of such Lender's
Obligations, Commitments or other interests). In the event of any such
sale by a Lender of participating interests to a Participant, such
Lender's obligations under this Credit Agreement to the other parties
to this Credit Agreement shall remain unchanged, such Lender shall
remain solely responsible for the performance thereof, such Lender
shall remain the holder of any such Note for all purposes under this
Credit Agreement, and the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Credit Agreement.
No Lender shall transfer or grant any participation under which the
Participant shall have rights to approve any amendment to or waiver of
this Credit Agreement or any other Credit Document except to the
extent such amendment or waiver would (i) extend the scheduled
maturity of any Loan or Note or any installment thereon in which such
Participant is participating, or reduce the stated rate or extend the
time of payment of interest or fees thereon (except in connection with
a waiver of interest at the increased post-default rate) or reduce the
principal amount thereof, or increase the amount of the Participant's
participation over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default shall not
constitute a change in the terms of such participation, and that an
increase in any Commitment or Loan shall be permitted without consent
of a Participant if such Participant's participation is not increased
as a result thereof), (ii) release any material Guarantor from its
obligations under the Guaranty, (iii) release any material portion of
the Collateral, or (iv) consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this Credit
Agreement. In the case of any such participation, the Participant
shall not have any rights under this Credit
100
Agreement or any of the other Credit Documents (the Participant's
rights against such Lender in respect of such participation to be
those set forth in the agreement executed by such Lender in favor of
the Participant relating thereto) and all amounts payable by the
Borrower hereunder shall be determined as if such Lender had not sold
such participation, provided that each Participant shall be entitled
--------
to the benefits of Sections 2.17, 2.18, 2.19, 2.20 and 9.5 with
respect to its participation in the Commitments and the Loans
outstanding from time to time; provided, that the Participants of any
--------
Lender, in the aggregate, shall not be entitled to receive any greater
amount pursuant to such Sections than the transferor Lender would have
been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such
transfer occurred.
(c) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable law, at
any time, sell or assign to any Lender or any affiliate thereof and
with the consent of the Administrative Agent and, so long as no
Default or Event of Default has occurred and is continuing, the
Borrower (in each case, which consent shall not be unreasonably
withheld), to one or more additional banks, insurance companies or
other financial institutions or any funds investing in bank loans
("Purchasing Lenders"), all or any part of its rights and obligations
------------------
under this Credit Agreement and the Notes in minimum amounts of
$1,000,000 (or, if less, the entire amount of such Lender's
Obligations), pursuant to a Commitment Transfer Supplement, executed
by such Purchasing Lender and such transferor Lender (and, in the case
of a Purchasing Lender that is not then a Lender or an affiliate
thereof, the Administrative Agent and, so long as no Default or Event
of Default has occurred and is continuing, the Borrower), and
delivered to the Administrative Agent for its acceptance and recording
in the Register; provided, however, that any sale or assignment to an
-------- -------
existing Lender, an Affiliate of an existing Lender or an Approved
Fund shall not require the consent of the Administrative Agent or the
Borrower nor shall any such sale or assignment be subject to the
minimum assignment amounts specified herein. Upon such execution,
delivery, acceptance and recording, from and after the Transfer
Effective Date specified in such Commitment Transfer Supplement, (x)
the Purchasing Lender thereunder shall be a party hereto and, to the
extent provided in such Commitment Transfer Supplement, have the
rights and obligations of a Lender hereunder with a Commitment as set
forth therein, and (y) the transferor Lender thereunder shall, to the
extent provided in such Commitment Transfer Supplement, be released
from its obligations under this Credit Agreement (and, in the case of
a Commitment Transfer Supplement covering all or the remaining portion
of a transferor Lender's rights and obligations under this Credit
Agreement, such transferor Lender shall cease to be a party hereto).
Such Commitment Transfer Supplement shall be deemed to amend this
Credit Agreement to the extent, and only to the extent, necessary to
reflect the addition of such Purchasing Lender and the resulting
adjustment of Commitment Percentages arising from the purchase by such
Purchasing Lender of all or a portion of the rights and obligations of
such transferor Lender under this Credit Agreement and the Notes. On
or prior to the Transfer Effective Date specified in such Commitment
Transfer Supplement, the Borrower, at its own expense, shall execute
and deliver to the Administrative Agent in exchange for the Notes
delivered to
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the Administrative Agent pursuant to such Commitment Transfer
Supplement new Notes to the order of such Purchasing Lender in an
amount equal to the Commitment assumed by it pursuant to such
Commitment Transfer Supplement and, unless the transferor Lender has
not retained a Commitment hereunder, new Notes to the order of the
transferor Lender in an amount equal to the Commitment retained by it
hereunder. Such new Notes shall be dated the Closing Date and shall
otherwise be in the form of the Notes replaced thereby. The Notes
surrendered by the transferor Lender shall be returned by the
Administrative Agent to the Borrower marked "canceled".
(d) The Administrative Agent shall maintain at its
address referred to in Section 9.2 a copy of each Commitment Transfer
Supplement delivered to it and a register (the "Register") for the
--------
recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Loans owing to, each Lender
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 the owner of the Loan recorded therein for all
purposes of this Credit Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and
from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly executed Commitment
Transfer Supplement, together with payment to the Administrative Agent
by the transferor Lender or the Purchasing Lender (except for any
assignment by a Lender to an Affiliate of such Lender), as agreed
between them, of a registration and processing fee of $3,500 for each
Purchasing Lender listed in such Commitment Transfer Supplement and
the Notes subject to such Commitment Transfer Supplement, the
Administrative Agent shall (i) accept such Commitment Transfer
Supplement and (ii) record the information contained therein in the
Register.
(f) Each Credit Party authorizes each Lender to disclose
to any Participant or Purchasing Lender (each, a "Transferee") and any
----------
prospective Transferee any and all financial information in such
Lender's possession concerning the Credit Parties and their Affiliates
which has been delivered to such Lender by or on behalf of a Credit
Party pursuant to this Credit Agreement or which has been delivered to
such Lender by or on behalf of a Credit Party in connection with such
Lender's credit evaluation of the Credit Parties and their Affiliates
prior to becoming a party to this Credit Agreement, in each case
subject to Section 9.15.
(g) At the time of each assignment pursuant to this
Section 9.6 to a Person which is not already a Lender hereunder and
which is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) for federal income tax purposes, the
respective assignee Lender shall provide to the Borrower and the
Administrative Agent the appropriate Internal Revenue Service Forms
(and, if applicable, a 2.19 Certificate) described in Section 2.19.
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(h) Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this
Credit Agreement to secure obligations of such Lender, including any
such pledge or assignment to a Federal Reserve Bank, and this Section
9.6 shall not apply to any such pledge or assignment of a security
interest; provided that no such pledge or assignment of a security
--------
interest shall release a Lender from any of its obligations hereunder
or substitute any such assignee for such Lender as a party hereto.
SECTION 9.7 ADJUSTMENTS; SET-OFF.
--------------------
(a) Each Lender agrees that if any Lender (a "benefited
---------
Lender") shall at any time receive any payment of all or part of its
------
Loans, or interest thereon, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off, pursuant to
events or proceedings of the nature referred to in Section 7.1(f), or
otherwise) in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such
other Lender's Loans, or interest thereon, such benefited Lender shall
purchase for cash from the other Lenders a participating interest in
such portion of each such other Lender's Loan, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such benefited Lender to share
the excess payment or benefits of such collateral or proceeds ratably
with each of the Lenders; provided, however, that if all or any portion
-------- -------
of such excess payment or benefits is thereafter recovered from such
benefited Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but
without interest. The Borrower agrees that each Lender so purchasing a
portion of another Lender's Loans may exercise all rights of payment
(including, without limitation, rights of set-off) with respect to such
portion as fully as if such Lender were the direct holder of such
portion.
(b) In addition to any rights and remedies of the Lenders
provided by law (including, without limitation, other rights of
set-off), each Lender shall have the right, without prior notice to any
Credit Party, any such notice being expressly waived by the Credit
Parties to the extent permitted by applicable law, upon the occurrence
of any Event of Default, to setoff and appropriate and apply any and
all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims,
in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held by or owing by or to
such Lender or any branch or agency thereof to or for the credit or the
account of the Borrower or any other Credit Party, or any part thereof
in such amounts as such Lender may elect, against and on account of the
Loans and other Credit Party Obligations of the Borrower and the other
Credit Parties to such Lender hereunder and claims of every nature and
description of such Lender against the Borrower and the other Credit
Parties, in any currency, whether arising hereunder, under any other
Credit Document or any Hedging Agreement provided by such Lender
pursuant to the terms of this Agreement, as such Lender may elect,
whether or not such Lender has made any demand for payment and although
such obligations, liabilities and claims may be contingent or
unmatured. The aforesaid right of set-off may be exercised by such
Lender against the Borrower, any other Credit Party or
103
against any trustee in bankruptcy, debtor in possession, assignee for
the benefit of creditors, receiver or execution, judgment or
attachment creditor of the Borrower or any other Credit Party, or
against anyone else claiming through or against the Borrower, any
other Credit Party or any such trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, receiver, or
execution, judgment or attachment creditor, notwithstanding the fact
that such right of set-off shall not have been exercised by such
Lender prior to the occurrence of any Event of Default. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent
after any such set-off and application made by such Lender; provided,
--------
however, that the failure to give such notice shall not affect the
-------
validity of such set-off and application.
SECTION 9.8 TABLE OF CONTENTS AND SECTION HEADINGS.
--------------------------------------
The table of contents and the Section and subsection headings herein
are intended for convenience only and shall be ignored in construing this Credit
Agreement.
SECTION 9.9 COUNTERPARTS.
------------
This Credit Agreement may be executed by one or more of the parties to
this Credit Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Credit Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.
SECTION 9.10 EFFECTIVENESS.
-------------
This Credit Agreement shall become effective on the date on which all
of the parties have signed a copy hereof (whether the same or different copies)
and shall have delivered the same to the Administrative Agent pursuant to
Section 9.2 or, in the case of the Lenders, shall have given to the
Administrative Agent written, telecopied or telex notice (actually received) at
such office that the same has been signed and mailed to it.
SECTION 9.11 SEVERABILITY.
------------
Any provision of this Credit Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 9.12 INTEGRATION.
-----------
This Credit Agreement and the Notes represent the agreement of the
Borrower, the other Credit Parties, the Administrative Agent and the Lenders
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the
104
Administrative Agent, the Borrower, the other Credit Parties or any Lender
relative to the subject matter hereof not expressly set forth or referred to
herein or in the Notes.
SECTION 9.13 GOVERNING LAW.
-------------
This Credit Agreement and the Notes and the rights and obligations of
the parties under this Credit Agreement and the Notes shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
SECTION 9.14 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
----------------------------------------------
All judicial proceedings brought against the Borrower and/or any other
Credit Party with respect to this Credit Agreement, any Note or any of the other
Credit Documents may be brought in any state or federal court of competent
jurisdiction in the State of New York, and, by execution and delivery of this
Credit Agreement, each of the Borrower and the other Credit Parties accepts, for
itself and in connection with its properties, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts and irrevocably agrees to be
bound by any final judgment rendered thereby in connection with this Credit
Agreement from which no appeal has been taken or is available. Each of the
Borrower and the other Credit Parties irrevocably agrees that all service of
process in any such proceedings in any such court may be effected by mailing a
copy thereof by registered or certified mail (or any substantially similar form
of mail), postage prepaid, to it at its address set forth in Section 9.2 or at
such other address of which the Administrative Agent shall have been notified
pursuant thereto, such service being hereby acknowledged by the each of the
Borrower and the other Credit Parties to be effective and binding service in
every respect. Each of the Borrower, the other Credit Parties, the
Administrative Agent and the Lenders irrevocably waives any objection,
including, without limitation, any objection to the laying of venue or based on
the grounds of forum non conveniens, which it may now or hereafter have to the
bringing of any such action or proceeding in any such jurisdiction. Nothing
herein shall affect the right to serve process in any other manner permitted by
law or shall limit the right of any Lender to bring proceedings against the
Borrower or the other Credit Parties in the court of any other jurisdiction.
SECTION 9.15 CONFIDENTIALITY.
---------------
The Administrative Agent and each of the Lenders agrees that it will
use its best efforts not to disclose without the prior written consent of the
Borrower any information with respect to the Credit Parties which is furnished
pursuant to this Credit Agreement, any other Credit Document or any documents
contemplated by or referred to herein or therein and which is designated by the
Borrower to the Lenders in writing as confidential or as to which it is
otherwise reasonably clear such information is not public, except that any
Lender may disclose any such information (a) to its employees, Affiliates,
auditors and counsel or to another Lender, (b) as has become generally available
to the public other than by a breach of this Section 9.15, (c) as may be
required or appropriate in any report, statement or testimony submitted to any
municipal, state or federal regulatory body having or claiming to have
jurisdiction over such Lender or to the Federal Reserve Board or the Federal
Deposit Insurance Corporation or the OCC or the NAIC or
105
similar organizations (whether in the United States or elsewhere) or their
successors, (d) as may be required or appropriate in response to any summons or
subpoena or any law, order, regulation or ruling applicable to such Lender, (e)
to any prospective Participant or assignee in connection with any contemplated
transfer pursuant to Section 9.6, provided that such prospective transferee
--------
shall have been made aware of this Section 9.15 and shall have agreed to be
bound by its provisions as if it were a party to this Credit Agreement or (f) to
Gold Sheets and other similar bank trade publications; such information to
-----------
consist of deal terms and other information regarding the credit facilities
evidenced by this Credit Agreement customarily found in such publications.
SECTION 9.16 ACKNOWLEDGMENTS.
---------------
The Borrower and the other Credit Parties each hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of each Credit Document;
(b) neither the Administrative Agent nor any Lender has
any fiduciary relationship with or duty to the Borrower or any other
Credit Party arising out of or in connection with this Credit
Agreement and the relationship between Administrative Agent and
Lenders, on one hand, and the Borrower and the other Credit Parties,
on the other hand, in connection herewith is solely that of debtor and
creditor; and
(c) no joint venture exists among the Lenders or among
the Borrower or the other Credit Parties and the Lenders.
SECTION 9.17 WAIVERS OF JURY TRIAL.
---------------------
THE BORROWER, THE OTHER CREDIT PARTIES, THE ADMINISTRATIVE AGENT AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
ARTICLE X
GUARANTY
SECTION 10.1 THE GUARANTY.
------------
In order to induce the Lenders to enter into this Credit Agreement and
to extend credit hereunder and in recognition of the direct benefits to be
received by the Guarantors from the Extensions of Credit hereunder, each of the
Guarantors hereby agrees with the Administrative Agent and the Lenders as
follows: the Guarantor hereby unconditionally and irrevocably jointly
106
and severally guarantees as primary obligor and not merely as surety the full
and prompt payment when due, whether upon maturity, by acceleration or
otherwise, of any and all indebtedness of the Borrower to the Administrative
Agent and the Lenders (or any Affiliate of a Lender that provides a Hedging
Agreement permitted by Section 6.1(d)). If any or all of the indebtedness of the
Borrower to the Administrative Agent and the Lenders (or any Affiliate of a
Lender that provides a Hedging Agreement permitted by Section 6.1(d)) becomes
due and payable hereunder or any Hedging Agreement permitted by Section 6.1(d),
each Guarantor unconditionally promises to pay such indebtedness to the
Administrative Agent and the Lenders (or such Affiliate of a Lender, as
applicable), or order, on demand, together with any and all reasonable expenses
which may be incurred by the Administrative Agent or the Lenders in collecting
any of the indebtedness. The word "indebtedness" is used in this Article X in
its most comprehensive sense and includes any and all advances, debts,
obligations and liabilities of the Borrower, including specifically all Credit
Party Obligations, arising in connection with this Credit Agreement, the other
Credit Documents or any Hedging Agreement executed in connection herewith, in
each case, heretofore, now, or hereafter made, incurred or created, whether
voluntarily or involuntarily, absolute or contingent, liquidated or
unliquidated, determined or undetermined, whether or not such indebtedness is
from time to time reduced, or extinguished and thereafter increased or incurred,
whether the Borrower may be liable individually or jointly with others, whether
or not recovery upon such indebtedness may be or hereafter become barred by any
statute of limitations, and whether or not such indebtedness may be or hereafter
become otherwise unenforceable.
Notwithstanding any provision to the contrary contained herein or in
any other of the Credit Documents, to the extent the obligations of a Guarantor
shall be adjudicated to be invalid or unenforceable for any reason (including,
without limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of each such Guarantor
hereunder shall be limited to the maximum amount that is permissible under
applicable law (whether federal or state and including, without limitation, the
Bankruptcy Code).
SECTION 10.2 BANKRUPTCY.
----------
Additionally, each of the Guarantors unconditionally and irrevocably
guarantees jointly and severally the payment of any and all indebtedness of the
Borrower to the Lenders whether or not due or payable by the Borrower upon the
occurrence of any of the events specified in Section 7.1(f), and unconditionally
promises to pay such indebtedness to the Administrative Agent for the account of
the Lenders, or order, on demand, in lawful money of the United States. Each of
the Guarantors further agrees that to the extent that the Borrower or a
Guarantor shall make a payment or a transfer of an interest in any property to
the Administrative Agent or any Lender, which payment or transfer or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
or otherwise is avoided, and/or required to be repaid to the Borrower or a
Guarantor, the estate of the Borrower or a Guarantor, a trustee, receiver or any
other party under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such avoidance or repayment, the
obligation or part thereof intended to be satisfied shall be revived and
continued in full force and effect as if said payment had not been made.
107
SECTION 10.3 NATURE OF LIABILITY.
-------------------
The liability of each Guarantor hereunder is exclusive and independent
of any security for or other guaranty of the indebtedness of the Borrower
whether executed by any such Guarantor, any other guarantor or by any other
party, and no Guarantor's liability hereunder shall be affected or impaired by
(a) any direction as to application of payment by the Borrower or by any other
party, or (b) any other continuing or other guaranty, undertaking or maximum
liability of a guarantor or of any other party as to the indebtedness of the
Borrower, or (c) any payment on or in reduction of any such other guaranty or
undertaking, or (d) any dissolution, termination or increase, decrease or change
in personnel by the Borrower, or (e) any payment made to the Administrative
Agent or the Lenders on the indebtedness which the Administrative Agent or such
Lenders repay the Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding, and
each of the Guarantors waives any right to the deferral or modification of its
obligations hereunder by reason of any such proceeding.
SECTION 10.4 INDEPENDENT OBLIGATION.
----------------------
The obligations of each Guarantor hereunder are independent of the
obligations of any other guarantor or the Borrower, and a separate action or
actions may be brought and prosecuted against each Guarantor whether or not
action is brought against any other guarantor or the Borrower and whether or not
any other Guarantor or the Borrower is joined in any such action or actions.
SECTION 10.5 AUTHORIZATION.
-------------
Each of the Guarantors authorizes the Administrative Agent and each
Lender without notice or demand (except as shall be required by applicable
statute and cannot be waived), and without affecting or impairing its liability
hereunder, from time to time to (a) renew, compromise, extend, increase,
accelerate or otherwise change the time for payment of, or otherwise change the
terms of the indebtedness or any part thereof in accordance with this Credit
Agreement, including any increase or decrease of the rate of interest thereon,
(b) take and hold security from any Guarantor, the Borrower or any other party
for the payment of this Guaranty or the other Credit Party Obligations and
exchange, enforce, waive and/or release any such security, (c) apply such
security and direct the order or manner of sale thereof as the Administrative
Agent and the Lenders in their discretion may determine and (d) release or
substitute any one or more endorsers, guarantors, the Borrower or other
obligors.
SECTION 10.6 RELIANCE.
--------
It is not necessary for the Administrative Agent or the Lenders to
inquire into the capacity or powers of the Borrower or the officers, directors,
partners or agents acting or purporting to act on its behalf, and any
indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
108
SECTION 10.7 WAIVER.
------
(a) Each of the Guarantors waives any right (except as
shall be required by applicable statute and/or cannot be waived as a
matter of law) to require the Administrative Agent or any Lender to
(i) proceed against the Borrower, any other Guarantor or any other
party, (ii) proceed against or exhaust any security held from the
Borrower, any other Guarantor or any other party, or (iii) pursue any
other remedy in the Administrative Agent's or any Lender's power
whatsoever. Each of the Guarantors waives any defense based on or
arising out of any defense of the Borrower, any other Guarantor or any
other party other than payment in full of the indebtedness, including
without limitation any defense based on or arising out of the
disability of the Borrower, any other guarantor or any other party, or
the unenforceability of the indebtedness or any part thereof from any
cause, or the cessation from any cause of the liability of the
Borrower other than payment in full of the indebtedness; provided,
--------
however, that this provision shall not constitute a waiver of any
-------
defense based on the gross negligence or willful misconduct of the
Lenders (or any one of them) or the Administrative Agent. The
Administrative Agent or any of the Lenders may, at their election,
foreclose on any security held by the Administrative Agent or a Lender
by one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable (to the extent such
sale is permitted by applicable law), or exercise any other right or
remedy the Administrative Agent and any Lender may have against the
Borrower or any other party, or any security, without affecting or
impairing in any way the liability of any Guarantor hereunder except
to the extent the indebtedness has been paid. Each of the Guarantors
waives any defense arising out of any such election by the
Administrative Agent and each of the Lenders, even though such
election operates to impair or extinguish any right of reimbursement
or subrogation or other right or remedy of the Guarantors against the
Borrower or any other party or any security.
(b) Each of the Guarantors waives all presentments,
demands for performance, protests and notices, including without
limitation notices of nonperformance, notice of protest, notices of
dishonor, notices of acceptance of this Guaranty, and notices of the
existence, creation or incurring of new or additional indebtedness.
Each Guarantor assumes all responsibility for being and keeping itself
informed of the Borrower's financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the
indebtedness and the nature, scope and extent of the risks which such
Guarantor assumes and incurs hereunder, and agrees that neither the
Administrative Agent nor any Lender shall have any duty to advise such
Guarantor of information known to it regarding such circumstances or
risks.
(c) Each of the Guarantors hereby agrees it will not
exercise any rights of subrogation which it may at any time otherwise
have as a result of this Guaranty (whether contractual, under Section
509 of the U.S. Bankruptcy Code, or otherwise) to the claims of the
Lenders against the Borrower or any other guarantor of the
indebtedness of the Borrower owing to the Lenders (collectively, the
"Other Parties") and all contractual, statutory or common law rights
-------------
of reimbursement, contribution or indemnity from any
109
Other Party which it may at any time otherwise have as a result of
this Guaranty until such time as the Loans hereunder shall have been
paid and the Commitments have been terminated. Each of the Guarantors
hereby further agrees not to exercise any right to enforce any other
remedy which the Administrative Agent and the Lenders now have or may
hereafter have against any Other Party, any endorser or any other
guarantor of all or any part of the indebtedness of the Borrower and
any benefit of, and any right to participate in, any security or
collateral given to or for the benefit of the Lenders to secure
payment of the indebtedness of the Borrower until such time as the
Loans hereunder shall have been paid and the Commitments have been
terminated.
SECTION 10.8 LIMITATION ON ENFORCEMENT.
-------------------------
The Lenders agree that this Guaranty may be enforced only by the action
of the Administrative Agent acting upon the instructions of the Required Lenders
and that no Lender shall have any right individually to seek to enforce or to
enforce this Guaranty, it being understood and agreed that such rights and
remedies may be exercised by the Administrative Agent for the benefit of the
Lenders under the terms of this Credit Agreement. The Lenders further agree that
this Guaranty may not be enforced against any director, officer, employee or
stockholder of the Guarantors.
SECTION 10.9 CONFIRMATION OF PAYMENT.
-----------------------
The Administrative Agent and the Lenders will, upon request after
payment of the indebtedness and obligations which are the subject of this
Guaranty and termination of the Commitments relating thereto, confirm to the
Borrower, the Guarantors or any other Person that such indebtedness and
obligations have been paid and the Commitments relating thereto terminated,
subject to the provisions of Section 10.2.
110
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed and delivered by its proper and duly authorized
officers as of the day and year first above written.
BORROWER: ▇▇▇▇▇▇ BROADCASTING COMPANY
--------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
GUARANTORS: ▇▇▇▇▇▇ RADIO REGIONAL GROUP INC.
----------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
▇▇▇▇▇▇ BROADCASTING-PORTLAND
RADIO, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
▇▇▇▇▇▇ BROADCASTING-SEATTLE RADIO,
L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
▇▇▇▇▇▇ BROADCASTING-PORTLAND TV,
L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
▇▇▇▇▇▇ BROADCASTING-SEATTLE TV,
L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
▇▇▇▇▇▇ BROADCASTING-S.E. IDAHO TV,
L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
▇▇▇▇▇▇ BROADCASTING-IDAHO TV, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
▇▇▇▇▇▇ BROADCASTING-GEORGIA TV,
L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
▇▇▇▇▇▇ BROADCASTING-OREGON TV,
L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
▇▇▇▇▇▇ BROADCASTING-WASHINGTON
TV, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
ADMINISTRATIVE AGENT
-------------------
AND LENDERS: FIRST UNION NATIONAL BANK,
------------ as Administrative Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
BANK OF AMERICA, N.A.,
as a Co-Syndication Agent and as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
THE BANK OF NEW YORK,
as a Co-Syndication Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
NATIONAL CITY BANK,
as Documentation Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President