Exhibit 99.2
AMERICAN RADIO SYSTEMS CORPORATION
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CREDIT AGREEMENT
Dated as of January 24, 1997
$350,000,000
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by and among
AMERICAN RADIO SYSTEMS CORPORATION,
THE BANK OF NEW YORK,
as COLLATERAL AGENT and ADMINISTRATIVE AGENT,
THE CHASE MANHATTAN BANK and
THE TORONTO-DOMINION BANK,
as CO-SYNDICATION AGENTS,
BANK OF MONTREAL, CREDIT SUISSE FIRST BOSTON,
FLEET NATIONAL BANK and UNION BANK OF CALIFORNIA, N.A.,
as MANAGING AGENTS,
BARCLAYS BANK PLC,
as AGENT,
BANK OF AMERICA ILLINOIS, THE SANWA BANK, LIMITED
and ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME RATE INCOME TRUST,
as CO-AGENTS,
and
THE LENDERS PARTY HERETO
WITH
BNY CAPITAL MARKETS, INC.,
CHASE SECURITIES, INC., and
TORONTO DOMINION SECURITIES, INC.,
as ARRANGERS
CREDIT AGREEMENT, dated as of January 24, 1997, by and among AMERICAN
RADIO SYSTEMS CORPORATION, a Delaware corporation (the "Borrower"), THE BANK OF
NEW YORK, as Collateral Agent and as administrative agent for the Lenders
hereunder (in such capacity, the "Administrative Agent"), THE CHASE MANHATTAN
BANK and THE TORONTO-DOMINION BANK, as co-syndication agents (each in such
capacity, a "Co-Syndication Agent" and, collectively, the "Co-Syndication
Agents"), Bank of Montreal, Credit Suisse First Boston, Fleet National Bank and
Union Bank of California, N.A., as managing agents (each in such capacity, a
"Managing Agent" and, collectively, the "Managing Agents"), Barclays Bank PLC,
as agent (in such capacity, the "Agent"), Bank of America Illinois, The Sanwa
Bank, Limited and ▇▇▇ ▇▇▇▇▇▇ American Capital Prime Rate Income Trust, as
co-agents (each in such capacity, a "Co-Agent" and, collectively, the
"Co-Agents") and each Lender party hereto or which becomes a "Lender" pursuant
to the provisions of section 11.7 (each a "Lender" and, collectively, the
"Lenders").
1. DEFINITIONS
1.1 Defined Terms.
As used in this Agreement, terms defined in the preamble have
the meanings therein indicated, and the following terms have the following
meanings:
"ABR Loans": the Loans (or any portions thereof) at such time as they
(or such portions) are made or are being maintained at a rate of interest based
upon the Alternate Base Rate.
"Accountants": Deloitte & Touche LLP, or such other firm of certified
public accountants of recognized national standing selected by the Borrower and
reasonably satisfactory to the Administrative Agent.
"Affected Loan": as defined in section 2.15.
"Affected Principal Amount": (i) in the event that the Borrower shall
fail for any reason to borrow or convert a Loan after it shall have notified the
Administrative Agent of its intent to do so in which it shall have requested a
Eurodollar Loan pursuant to section 2.3 or 2.8, as the case may be, an amount
equal to the principal amount of such Loan; (ii) in the event that a Eurodollar
Loan shall terminate for any reason prior to the last day of the Interest Period
applicable thereto, an amount equal to the principal amount of such Loan; and
(iii) in the event that the Borrower shall prepay or repay all or any part of
the principal amount of a Eurodollar Loan prior to the last day of the Interest
Period applicable thereto, an amount equal to the principal amount of such Loan
so prepaid or repaid.
"Affiliate": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, control of a Person shall mean the
power, direct or indirect, (i) to vote 10% or more of the securities having
ordinary vot ing power for the election of directors of such Person or (ii) to
direct or cause direction of the management and policies of such Person whether
by contract or otherwise.
"Aggregate Station Annual Cash Flow": as defined in section 8.7(b).
"Agreement": this Credit Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"Alternate Base Rate": on any date, a rate of interest per annum equal
to the higher of (i) the BNY Rate in effect on such date or (ii) 1/2 of 1% plus
the Federal Funds Rate in effect on such date.
"Applicable Margin": (a) subject to paragraph (b) of this definition, at
all times during the applicable periods set forth below, (i) with respect to the
unpaid principal amount of the ABR Loans, the percentage set forth below under
the heading "Alternate Base Rate Margin" next to the applicable period and (ii)
with respect to the unpaid principal amount of the Eurodollar Loans, the
percentage set forth below under the heading "Eurodollar Rate Margin" next to
the applicable period:
Alternate Base Eurodollar
Period Rate Margin Rate Margin
when the Total
Leverage Ratio
is equal to or
greater than
6.75:1.00 0.750% 2.000%
when the Total
Leverage Ratio
is equal to or greater
than 6.50:1.00 but
less than 6.75:1.00 0.625% 1.875%
when the Total
Leverage Ratio
is equal to or greater
than 6.00:1.00 but
less than 6.50:1.00 0.250% 1.500%
when the Total
Leverage Ratio
is equal to or greater
than 5.50:1.00 but less
than 6.00:1.00 0.000% 1.250%
when the Total
Leverage Ratio
is equal to or greater
than 5.00:1.00 but
less than 5.50:1.00 0.000% 1.000%
when the Total
Leverage Ratio
is equal to or greater
than 4.50:1.00 but
less than 5.00:1.00 0.000% 0.750%
when the Total
Leverage Ratio
is equal to or greater
than 4.00:1.00 but
less than 4.50:1.00 0.000% 0.625%
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when the Total
Leverage Ratio
is less than 4.00:1.00 0.000% 0.500%
(b) Changes in the Applicable Margin resulting from a change
in the Total Leverage Ratio, as evidenced by a Ratio Certificate delivered to
the Administrative Agent pursuant to section 7.1(d) evi dencing such a change,
shall become effective upon the first Business Day following the delivery of (i)
the Ratio Certificate and (ii) the applicable financial statements required to
be delivered pursuant to section 7.1(a) or (c), as the case may be. If the
Borrower shall fail to deliver a Ratio Certificate within 45 days after the end
of any of the first three fiscal quarters, or within 90 days after the end of
the last fiscal quarter, of each fiscal year (each a "certificate delivery
date"), for purposes of calculating the Applicable Margin, the Total Leverage
Ratio from and including such certificate delivery date to the date of delivery
by the Borrower to the Administrative Agent of such Ratio Certificate shall be
conclusively presumed to be greater than 6.75:1.00.
"Arrangers": BNY Capital Markets, Inc., Chase Securities, Inc. and
Toronto Dominion Securities, Inc.
"ARS License Subsidiary": American Radio Systems License Corp., a 100%
owned Restricted Subsidiary of the Borrower holding certain of the FCC licenses
of the Borrower and its Restricted Subsidiaries.
"ARS License Subsidiary Management Agreement": the Borrower License
Subsidiary Management Agreement, dated as of the date hereof, between the
Borrower and the ARS License Subsidiary, substantially in the form attached
hereto as Exhibit D, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with section 8.13.
"ARS Subordinated Indenture": the Indenture, dated as of February 1,
1996, between the Borrower and Fleet National Bank, as trustee, as amended by
supplemental indenture dated October 1, 1996, as the same may be further
amended, supplemented or otherwise modified from time to time in accordance with
section 8.19.
"ARS Subordinated Indenture Notes": the 9% Senior Subordinated Notes,
due 2006, in the aggregate principal amount of $175,000,000, issued pursuant to
the ARS Subordinated Indenture, as amended by supplemental indenture dated
October 1, 1996, as the same may be further amended, supplemented or otherwise
modified from time to time in accordance with section 8.19.
"ARS Subordinated Indenture Subsidiary Guaranty": the subordinated
guaranty or guaranties executed and delivered by one or more of the Restricted
Subsidiaries in connection with the ARS Subordinated Indenture, as the same may
be amended, supplemented or otherwise modified from time to time in accordance
with section 8.19.
"Assignment": as defined in section 11.7(b).
"Assignment and Assumption Agreement": an agreement substantially in
the form of Exhibit K.
"Assignment Fee": as defined in section 11.7(b).
"Authorized Signatory": the chief executive officer, the chief
financial officer, the chief operating officer, the president or any other duly
authorized officer (acceptable to the Administrative Agent) of a Loan Party.
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"BNY": The Bank of New York.
"BNY Rate": a rate of interest per annum equal to the rate of
interest publicly announced in New York City by BNY from time to time as its
prime commercial lending rate, such rate to be adjusted automatically (without
notice) on the effective date of any change in such publicly announced rate.
"Borrower Security Agreement": the Borrower Security Agreement, dated
as of the date hereof, between the Borrower and the Collateral Agent,
substantially in the form attached hereto as Exhibit I, as the same may be
amended, supplemented or otherwise modified from time to time.
"Borrowing Date": any Business Day specified in a Borrowing Request as
a date on which the Bor rower requests the Lenders to make Loans.
"Borrowing Request": a Borrowing Request substantially in the form of
Exhibit C.
"Broadcasting Station": all related licenses, franchises and permits
issued under federal, state or local laws from time to time which authorize a
Person to receive or distribute, or both, over the airwaves, audio and visual,
radio or microwave signals within a geographic area for the purpose of providing
commercial broadcasting radio programming, together with all Property owned or
used in connection with the programming provided pursuant to, and all interest
of such Person to receive revenues from any other Person which derives revenues
from or pursuant to, said licenses, franchises and permits. The term
"Broadcasting Station" shall also include a corporation incorporated in the
United States which shall own one or more Broadcasting Stations.
"Business Day": (i) for all purposes other than as set forth in
clause (ii) below, any day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law or other
governmental action to close and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
Eurodollar Loans, any day which is a Business Day described in clause (i) above
and which is also a day on which dealings in foreign currency and exchange
between banks in the interbank eurodollar market may be carried on as determined
by the Administrative Agent.
"Capital Stock": (i) in the case of a corporation, capital stock,
(ii) in the case of any association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) or
capital stock and (iii) in the case of a partnership, partnership interests
(whether general or limited) and 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, such partnership.
"CERCLA": the Comprehensive Environmental Response, Compensation and
Liability Act, as set forth at 42 U.S.C. ss.9601, et seq. as the same may be
amended from time to time, and the rules and regulations issued thereunder, as
from time to time in effect.
"Change of Control": any of the following:
(i) the sale, lease, transfer, in one or a series of related
transactions, of all or substantially all of the Borrower's assets to any Person
or group (as such term is used in Section 13(d)(3) of the Exchange Act) (other
than the Principal Shareholders or their Related Parties);
(ii) the adoption of a plan relating to the liquidation or
dissolution of the Borrower;
(iii) the acquisition, directly or indirectly, by any Person
or group (as such term is used in Section 13(d)(3) of the Exchange Act) (other
than the Principal Shareholders and their Related Parties) of 40% or more of the
voting power of the voting stock of the Borrower by way of merger or
consolidation or
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otherwise, provided that such acquisition will not constitute a "Change of
Control" unless or until such Person or group owns, directly or indirectly, more
of the voting power of the voting stock of the Borrower than the Principal
Shareholders and their Related Parties; or
(iv) the Continuing Directors cease for any reason to
constitute a majority of the directors of the Borrower then in office. For
purposes of this definition, any transfer of an Equity Interest of an entity
that was formed for the purpose of acquiring voting stock of the Borrower shall
be deemed to be a transfer of such portion of such voting stock as corresponds
to the portion of the equity of such entity that has been so transferred.
"Code": the Internal Revenue Code of 1986, as the same may be amended
from time to time, or any successor thereto, and the rules and regulations
issued thereunder, as from time to time in effect.
"Collateral": collectively, the Collateral under and as defined in the
Collateral Documents.
"Collateral Agent": BNY in its capacity as collateral agent under the
Collateral Documents.
"Collateral Documents": collectively, the Borrower Security Agreement
and the Subsidiary Guaranty.
"Combined Credit Exposure": with respect to any Lender hereunder or any
Lender (as defined in the Other Credit Agreement) at any time, the sum of (i)
its Credit Exposure hereunder and (ii) its Credit Exposure (under and as defined
in the Other Credit Agreement), in each case at such time.
"Combined Required Lenders": at any date of determination, Lenders
hereunder and Lenders (as defined in the Other Credit Agreement) having Combined
Credit Exposures, without duplication, equal to or greater than 51% of the Total
Combined Credit Exposure.
"Commitment": as to any Lender, its RC/TL Commitment or SD/TL
Commitment, as the context may require.
"Commitment Reduction Fraction": in respect of any mandatory
reduction of the RC/TL Commitments pursuant to section 2.4(b), a fraction the
numerator of which is the aggregate amount of the RC/TL Commitments and the
denominator of which is the sum of the aggregate amount of the RC/TL Commitments
and the aggregate amount of the RC Commitments (under and as defined in the
Other Credit Agreement), in each case determined immediately prior to such
mandatory reduction.
"Commitment Fee" and "Commitment Fees": as defined in section 3.1.
"Commitment Percentage": as to any Lender, its RC/TL Commitment
Percentage or SD/TL Commitment Percentage, as the context may require.
"Commitments": the RC/TL Commitments and the SD/TL Commitments.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the Borrower within the meaning of Section
414(b) or 414(c) of the Code.
"Communications Act": the Communications Act of 1934, as the same may
be amended from time to time, and the rules and regulations issued thereunder,
as from time to time in effect.
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"Consolidated": the Borrower and its Restricted Subsidiaries which are
consolidated for financial reporting purposes, excluding any interest of the
Borrower or any of its Restricted Subsidiaries in the Tower Subsidiaries.
"Consolidated Annual Broadcast Cash Flow": Consolidated Annual
Operating Cash Flow plus the sum of corporate office, general and administrative
expenses (exclusive of depreciation and amortization included in such corporate
office, general and administrative expenses) of the Borrower and its Restricted
Subsidiaries.
"Consolidated Annual Operating Cash Flow": at any time, Consolidated
Operating Cash Flow for the immediately preceding four fiscal quarters for which
financial statements have been delivered pursuant to section 7.1, or, in the
event that the date of determination is a fiscal quarter ending date, the fiscal
quarter then ended and the immediately preceding three fiscal quarters.
Notwithstanding anything to the contrary contained in this definition,
(i) solely for purposes of determining the Total Leverage Ratio under
sections 1.1 (with respect to the definition of Applicable Margin) and 3.1 and
the Total Leverage Ratio and the Senior Leverage Ratio under section 6.1, there
shall be added, without duplication, to Consolidated Annual Operating Cash Flow:
(a) the Operating Cash Flow of PBB (the "PBB Cash
Flow") for the immediately preceding four fiscal quarters for which
financial statements for PBB or its predecessor (prepared in a manner
substantially similar to the financial statements required to be
delivered pursuant to sections 7.1(a) and (c) and otherwise in all
respects reasonably satisfactory to the Administrative Agent) have
been delivered to the Administrative Agent and the Lenders or, in the
event that the date of determination is a fiscal quarter ending date,
the fiscal quarter then ended and the immediately preceding three
fiscal quarters, and
(b) the Operating Cash Flow of any entity with
which the Borrower has entered into a loan/purchase arrangement
permitted hereunder in connection with the acquisition of a
Broadcasting Station similar to the arrangements entered into by the
Borrower with PBB (to the extent allocable to such acquired
Broadcasting Station) (the "Additional Cash Flow") for the
immediately preceding four fiscal quarters for which financial
statements for such entity or its pre decessor (prepared in a manner
substantially similar to the financial statements required to be
delivered pursuant to sections 7.1(a) and (c) and otherwise in all
respects reasonably satisfactory to the Administrative Agent) have
been delivered to the Administrative Agent and the Lenders or, in the
event that the date of determination is a fiscal quarter ending date,
the fiscal quarter then ended and the immediately preceding three
fiscal quarters;
provided that (i) the aggregate amount of PBB Cash Flow and
Additional Cash Flow (if any) (collectively, the "Acquired Station
Cash Flow") which is added to Consolidated Annual Operating Cash Flow
pursuant to this sentence shall not exceed an aggregate amount equal
to (A) for the period through June 30, 1997, 100% of the Acquired
Station Cash Flow, and (B) thereafter, 0% of the Acquired Station
Cash Flow, and (ii) each of the PBB Documents, and the documents
evidencing any arrangement contemplated by paragraph (b) above shall
be in full force and effect and no default shall exist thereunder;
(ii) solely for purposes of determining compliance with sections 6.2,
6.3 and 6.4, there shall be added to Consolidated Annual Operating Cash Flow,
without duplication, actual payments of interest on (A) the PBB Notes and any
note payable to the Borrower in connection with an arrangement contemplated by
paragraph (b) above received by the Borrower during the applicable four fiscal
quarter period, and (B) Investments made pursuant to sections 8.5(c) or 8.5(d);
and
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(iii) solely for purposes of determining the Total Leverage Ratio
under sections 1.1 (with respect to the definition of Applicable Margin) and 3.1
and the Total Leverage Ratio and the Senior Leverage Ratio under section 6.1,
there shall be excluded from Consolidated Annual Operating Cash Flow the
Operating Cash Flow attributable to all Non-License Subsidiary Broadcasting
Stations to the extent that the aggregate Operating Cash Flow attributable to
all such Non-License Subsidiary Broadcasting Stations exceeds 10% of
Consolidated Annual Operating Cash Flow (determined without giving effect to
this clause (iii)).
"Consolidated Operating Cash Flow": Operating Cash Flow of the
Borrower and its Restricted Subsidiaries on a Consolidated basis.
Notwithstanding the foregoing, for purposes of determining Excess Cash Flow,
there shall be added to Consolidated Operating Cash Flow for the applicable
period, without duplication, actual payments of interest on the PBB Notes and
any note payable to the Borrower in connection with an arrangement contemplated
by paragraph (b) of the definition of Consolidated Annual Operating Cash Flow
received by the Borrower during such applicable period.
"Contingent Obligation": as to any Person, any obligation of such
Person guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(i) to purchase any such primary obligation or any Property constituting direct
or indirect security therefor, (ii) to advance or supply funds (a) for the
purchase or payment of any such primary obligation or (b) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase Property,
securities or services primarily for the purpose of assuring the beneficiary of
any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold harmless
the beneficiary of such primary obligation against loss in respect thereof;
provided, however, that the term Contingent Obligation shall not include the
indorsement of instruments for deposit or collection in the ordinary course of
business. The term Contingent Obligation shall also include the liability of a
general partner in respect of the Indebtedness of a partnership in which it is a
general partner, excluding Indebtedness which is non-recourse to such general
partner. The amount of any Contingent Obligation of a Person shall be deemed to
be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof as determined by such Person in good faith.
"Continuing Director": any member of the Board of Directors of the
Borrower who (i) is a member of that Board of Directors on the Effective Date or
(ii) was nominated for election by either (a) one or more of the Principal
Shareholders (or a Related Party thereof) or (b) the Board of Directors a
majority of whom were directors at the Effective Date or whose election or
nomination for election was previously approved by one or more of the Principal
Shareholders or such directors.
"Control Person": as defined in section 2.14.
"Copyright Act": Title 17 of the United States Code, as amended, and
the rules and regulations issued thereunder, as from time to time in effect.
"Credit Exposure" with respect to any Lender at any time, the sum of
(i) its RC/TL Commitment or, if no RC/TL Commitment is in effect, its
outstanding RC/TL Loans and (ii) its SD/TL Commitment or, if no SD/TL Commitment
is in effect, its outstanding SD/TL Loans, in each case at such time.
"Debt Service": the sum of Interest Expense and scheduled principal
amortization (including
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scheduled mandatory reductions of revolving credit and similar commitments) of
Total Debt, whether or not actually paid, for, as applicable, the immediately
preceding four fiscal quarters for which financial statements have been
delivered pursuant to section 7.1, or, in the event that the date of
determination is a fiscal quarter ending date, the fiscal quarter then ended and
the immediately preceding three fiscal quarters.
"Default": any of the events specified in section 9, whether or not
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Disqualified Stock": any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof (other than upon a Change of Control of the
Borrower in circumstances where the holders of the Notes would have similar
rights), in whole or in part on or prior to one year after the Maturity Date.
The amount of Disqualified Stock shall be the greater of the liquidation
preference or mandatory or optional redemption price thereof.
"Dollars" and "$": lawful currency of the United States of America.
"Effective Date": January 24, 1997.
"Environmental Laws": any and all federal, state and local laws
relating to the environment, the use, storage, transporting, manufacturing,
handling, discharge, disposal or recycling of hazardous substances, materials or
pollutants or industrial hygiene and including, without limitation, (i) CERCLA;
(ii) the Resource Conservation and Recovery Act of 1976, as amended, 42 USCA
ss.6901 et seq.; (iii) the Toxic Substance Control Act, as amended, 15 USCA
ss.2601 et. seq.; (iv) the Water Pollution Control Act, as amended, 33 USCA
ss.1251 et. seq.; (v) the Clean Air Act, as amended, 42 USCA ss.7401 et seq.;
(vi) the Hazardous Material Transportation Authorization Act of 1994, as
amended, 49 USCA ss.5101 et seq. and (viii) all rules, regulations, judgments,
decrees, injunctions and restrictions thereunder and any analogous state law, in
each case as from time to time in effect.
"Equity Interests": Capital Stock and all warrants, options or other
rights to acquire Capital Stock (including any Indebtedness or Disqualified
Stock that is convertible into, or exchangeable for, Capital Stock).
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations issued thereunder, as
from time to time in effect.
"Eurodollar Loan": a portion of the Loans selected by the Borrower to
bear interest during an Interest Period selected by the Borrower at a rate per
annum based upon a Eurodollar Rate determined with reference to such Interest
Period, all pursuant to and in accordance with sections 2.3 and 2.8.
"Eurodollar Rate": with respect to any Interest Period, the rate per
annum, as determined by the Administrative Agent, obtained by dividing (and then
rounding to the nearest 1/16 of 1%, or, if there is no nearest 1/16 of 1%, the
next higher 1/16 of 1%):
(a) the rate quoted by the Administrative Agent to major
banks in the interbank euro dollar market as the rate at which the
Administrative Agent is offering Dollar deposits in an amount approxi mately
equal to BNY's pro rata share of the given portion of the Loans selected by the
Borrower to bear interest during such Interest Period based upon a rate of
interest determined under this definition, and having a term to maturity
corresponding to such Interest Period, as quoted at approximately 10:00 A.M. two
Business Days prior to the date upon which such Interest Period is to commence,
by
(b) a number equal to 1.00 minus the aggregate of the then
stated maximum rates
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during such Interest Period of all reserve requirements (including, without
limitation, marginal, emergency, supplemental and special reserves), expressed
as a decimal, established by the Board of Governors of the Federal Reserve
System and any other banking authority to which BNY and other major United
States banks or money center banks are subject, in respect of eurocurrency
funding (currently referred to as "Eurocurrency liabilities" in Regulation D of
the Board of Governors of the Federal Reserve System). Such reserve requirements
shall include, without limitation, those imposed under such Regulation D.
Eurodollar Loans shall be deemed to constitute Eurocurrency liabilities and as
such shall be deemed to be subject to such reserve requirements without benefit
of credits for proration, exceptions or offsets which may be available from time
to time to any Lender under such Regulation D. The Eurodollar Rate shall be
adjusted automatically on and as of the effective date of any change in any such
reserve requirement.
"Event of Default": any of the events specified in section 9,
provided that any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Excess Cash Flow": at any time, in respect of any period,
Consolidated Operating Cash Flow for such period (before any adjustments to
reflect acquisitions, sales and exchanges of Property during such period) less
the sum of, without duplication, (i) Debt Service (excluding, to the extent
included therein, principal payments made pursuant to sections 2.5(d), (f), (g)
and (h) hereof, and principal payments made pursuant to sections 2.5(b), (d),
(e) and (f) of the Other Credit Agreement), (ii) voluntary principal prepayments
made pursuant to section 2.5(a) hereof and voluntary principal payments made
pursuant to section 2.5(a) of the Other Credit Agreement (excluding, to the
extent not otherwise excluded from this definition of "Excess Cash Flow",
principal payments made with cash the source of which is not included in the
Borrower's Operating Cash Flow), provided that the Commitments are permanently
reduced in an aggregate amount equal to such prepayments made under section
2.5(a) hereof, (iii) capital expenditures made (excluding capital expenditures
made with insurance proceeds), (iv) cash taxes paid, (excluding cash taxes
attributable to the Tower Subsidiaries) (v) non-recurring cash expense items
included in Consolidated Operating Cash Flow pursuant to clause (iii) of the
definition of Operating Cash Flow, (vi) Finance Costs and (vii) any cash
dividends paid with respect to Non Redeemable Preferred Stock (including,
without limitation, the preferred Stock issued pursuant to the 1996 Convertible
Exchangeable Preferred Stock Issuance and the preferred Stock issued pursuant to
the 1997 Preferred Stock Issuance).
"Exchange Act": the Securities Exchange Act of 1934, as amended.
"Existing Credit Agreement": the Credit Agreement, dated as of
December 19, 1995, by and among the Borrower, the lenders party thereto, Bank of
Montreal, Banque Paribas, Chemical Bank, CIBC Inc., Fleet National Bank and
Toronto Dominion (Texas), Inc., as co-agents, and The Bank of New York, as
agent, as amended.
"Existing EZ Indebtedness": all of the obligations of EZ and its
subsidiaries under the Credit Agreement, dated as of November 20, 1995, among
EZ, the lenders party thereto, and Chase Manhattan Bank (National Association),
as agent, as amended, and all other Basic Documents (as defined in such Credit
Agreement) executed and delivered in connection therewith, in each case as
amended.
"EZ": EZ Communications, Inc., a Commonwealth of Virginia
corporation.
"EZ Acquisition": the acquisition of EZ by the Borrower by way of a
merger of EZ into and with the Borrower with the Borrower as the survivor, all
pursuant to and in accordance with the EZ Transaction Documents.
"EZ Consent Solicitation": the Consent Solicitation Statement, dated
December 4, 1996, by the
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Borrower to the holders of the EZ Indenture Notes to amend the covenants under
the EZ Indenture to conform them in all material respects or to make them
compatible with the ARS Subordinated Indenture.
"EZ Indenture": the Indenture, dated as of November 21, 1995, among
EZ, the subsidiary guarantors party thereto and State Street Bank and Trust
Company, as trustee, pursuant to which EZ issued the EZ Indenture Notes, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with section 8.19.
"EZ Indenture Notes": the 9.75% senior subordinated notes due 2005 in
the aggregate principal amount of $150 million issued by EZ pursuant to the EZ
Indenture, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with section 8.19.
"EZ Indenture Subsidiary Guaranty": the guaranty or guaranties
executed and delivered by one or more of EZ's (and after the EZ Acquisition, the
Borrower's) subsidiaries in connection with the EZ Indenture, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
section 8.19.
"EZ License Subsidiaries": EZ Charlotte, Inc., EZ Kansas City, Inc.,
EZ Philadelphia, Inc., EZ Pittsburgh, Inc., EZ Sacramento, Inc. and EZ St.
Louis, Inc., each of which is wholly-owned by PBI and is incorporated in the
Commonwealth of Virginia.
"EZ License Subsidiary Management Agreements": as defined in section
8.21(m).
"EZ Transaction Documents": the Agreement and Plan of Merger, dated
as of August 5, 1996, between the Borrower and EZ, as amended and restated as of
September 27, 1996 among the Borrower, American Merger Corporation and EZ (as
amended and restated, the "American/EZ Merger Agreement"), together with the
American Registration Rights Agreement, the Stockholder Agreement, the American
Voting Agreement and the EZ Voting Agreement, in each case as referred to in the
American/EZ Merger Agreement.
"FCC": the Federal Communications Commission, or any Governmental
Authority succeeding to the functions thereof.
"Federal Funds Rate": for any day, the rate per annum (rounded to the
nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, then to the next
higher 1/16 of 1%) equal to the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers on such day, as published by the Federal Reserve Bank
of New York on the Business Day next succeeding such day, provided that (i) if
the day for which such rate is to be determined is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (ii) if such rate is not so published for any day, the Federal Funds Rate
for such day shall be the average rate charged to the Administrative Agent on
such day on such transactions as determined by the Administrative Agent.
"Finance Costs": non-capitalized costs incurred by the Borrower in
connection with the issuance of equity or the incurrence of Indebtedness.
"Fixed Charges": the sum, without duplication, of (a) Debt Service,
(b) cash taxes paid (excluding (i) capital gains taxes paid in connection with
permitted dispositions of Property pursuant to section 8.7 and (ii) cash taxes
paid by the Borrower attributable to the Tower Subsidiaries to the extent
reimbursed in cash by the Tower Subsidiaries (but including cash paid to the
Tower Subsidiaries in lieu of taxes pursuant to the Tax Sharing Agreement)), (c)
capital expenditures (excluding permitted capital expenditures made with
insurance proceeds), and (d) Restricted Payments made in cash pursuant to and in
accordance with sections 8.4(b) and (e) (excluding Restricted Payments made with
funds received from the Tower Subsidiaries), in each case of
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the Borrower and its Restricted Subsidiaries on a Consolidated basis, determined
in accordance with GAAP, for, as applicable, the immediately preceding four
fiscal quarters for which financial statements have been delivered pursuant to
section 7.1, or, in the event that the date of determination is a fiscal quarter
ending date, the fiscal quarter then ended and the immediately preceding three
fiscal quarters.
"GAAP": generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statement by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circum stances as of the date of
determination, consistently applied. If at any time any change in GAAP would
affect the computation of any financial ratio or requirement set forth in this
Agreement, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to reflect such
change in GAAP (subject to the approval of the Required Lenders), provided that,
until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent, and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government and any court or arbitrator.
"Hazardous Discharge": as defined in section 11.11(b).
"Highest Lawful Rate": as to any Lender, the maximum rate of
interest, if any, that at any time or from time to time may be contracted for,
taken, charged or received by such Lender on the Notes held thereby, or which
may be owing to such Lender pursuant to this Agreement and the other Loan
Documents under the laws applicable to such Lender and this transaction.
"Immediate Family Member": with respect to any individual, such
individual's spouse (past or current), descendants (natural or adoptive, of the
whole or half blood) of the parents of such individual, such individual's
grandparents and parents (natural or adoptive), and the grandparents, parents
and descendants of parents (natural or adoptive, of the whole or half blood) of
such individual's spouse (past or current).
"Indebtedness": as to any Person, at a particular time, all items
which constitute, without duplication, (i) indebtedness for borrowed money or
the deferred purchase price of Property (other than trade payables incurred in
the ordinary course of business), (ii) indebtedness evidenced by notes, bonds,
debentures or similar instruments, (iii) obligations with respect to any
conditional sale agreement or title retention agreement, (iv) indebtedness
arising under acceptance facilities and the amount available to be drawn under
all letters of credit issued for the account of such Person (except for letters
of credit issued in connection with the Red Sox Network Contract) and, without
duplication, all drafts drawn thereunder (including drafts drawn under the
letters of credit issued in connection with the Red Sox Network Contract) to the
extent such Person shall not have reimbursed the issuer in respect of the
issuer's payment of such drafts, (v) all liabilities secured by any Lien on any
Property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof (other than Liens permitted
under sections 8.2(i) through (iv) and carriers', warehousemen's, mechanics',
repairmen's or other like non-consensual Liens arising in the ordinary course of
business), (vi) obligations for principal payments under leases which have been,
or under GAAP are required to be, capitalized and (vii) all Contingent
Obligations.
"Indemnified Party": shall have the meaning set forth in section
11.11(a).
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"Interest Expense": the sum of all (i) interest (adjusted to give
effect to all Interest Rate Protection Arrangements and fees and expenses paid
in connection with same, all as determined in accordance with GAAP) on Total
Debt and (ii) commitment and similar fees, in each case of the Borrower and its
Restricted Subsidiaries on a Consolidated basis, determined in accordance with
GAAP, for, as applicable, the immediately preceding four fiscal quarters for
which financial statements have been delivered pursuant to section 7.1, or, in
the event that the date of determination is a fiscal quarter ending date, the
fiscal quarter then ended and the immediately preceding three fiscal quarters.
"Interest Payment Date": (i) as to any ABR Loan, the last day of each
March, June, September and December commencing on the first of such days to
occur after such ABR Loan is made, (ii) as to any Eurodollar Loan in respect of
which the Borrower has selected an Interest Period of one, two or three months,
the last day of such Interest Period and (iii) as to any Eurodollar Loan in
respect of which the Borrower has selected an Interest Period of six months, the
last day of such Interest Period and the corresponding day of the month which is
three months after the date of the commencement of such Interest Period, or, if
such day is not a Business Day or does not exist, on the immediately preceding
Business Day.
"Interest Period": the period commencing on any Business Day selected
by the Borrower in accordance with section 2.3 or 2.8 and ending one, two, three
or six months thereafter, as selected by the Borrower in accordance with such
section, subject to the following:
(a) if any Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall be extended to the
immediately succeeding Business Day unless the result of such extension would be
to carry the end of such Interest Period into another calendar month, in which
event such Interest Period shall end on the Business Day immediately preceding
such day; and
(b) if any Interest Period shall begin 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),
such Interest Period shall end on the last Business Day of a calendar month.
"Interest Rate Protection Arrangement": any interest rate swap, cap
or collar arrangement or any other derivative product customarily offered by
banks to their customers in order to manage the exposure of such customers to
interest rate fluctuations.
"Investments": as defined in section 8.5.
"Lending Office": in respect of any Lender, initially, the office or
offices of such Lender designated as such on Schedule 1.1(L) hereto; thereafter,
such other office or offices of such Lender, if any, which shall be making or
maintaining Loans.
"License Subsidiaries": collectively, (i) the ARS License Subsidiary,
(ii) the EZ License Subsidiaries and (iii) each other License Subsidiary which
the Borrower or any Restricted Subsidiary may acquire in accordance with section
8.3, each of which shall be a wholly-owned Restricted Subsidiary of the
Borrower.
"License Subsidiary Management Agreements": collectively, (i) the ARS
License Subsidiary Management Agreement, (ii) upon the consummation of the EZ
Acquisition, the EZ License Subsidiary Management Agreements and (iii) each
other management agreement entered into pursuant to section 8.3.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or other security agreement
or security interest of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement and any
financing lease having substantially the same economic effect as any of the
foregoing.
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"Loans": the RC/TL Loans and the SD/TL Loans.
"Loan Documents": collectively, this Agreement, the Notes, the
Collateral Documents and the License Subsidiary Management Agreements.
"Loan Party": the Borrower, each Subsidiary Guarantor and each other
party (other than the Administrative Agent, the Collateral Agent, the
Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents and the
Lenders) that is a signatory to a Loan Document.
"Margin Stock": any "margin stock", as said term is defined in
Regulation U of the Board of Governors of the Federal Reserve System, as the
same may be amended or supplemented from time to time.
"Material Adverse Change": a material adverse change in (i) the
operations, business, prospects, Property or condition (financial or otherwise),
except for the status of the matters as described under "Risk Factors-Factors
Relating to American and its Business--Antitrust Matters" in the 1997 Preferred
Stock Offering Circular (provided no material adverse change in such status
shall occur), of (a) the Borrower (excluding any interest of the Borrower in the
Tower Subsidiaries) or (b) the Borrower and its Restricted Subsidiaries on a
Consolidated basis, (ii) the ability of the Borrower or any other Loan Party to
perform its obligations under the Loan Documents to which it is a party or (iii)
the ability of the Administrative Agent, the Collateral Agent or any of the
Lenders to enforce any of the Loan Documents (other than as a result of facts or
circumstances pertaining to the Administrative Agent, the Collateral Agent or
such Lender which are not related to the Borrower or its Restricted
Subsidiaries).
"Material Adverse Effect": a material adverse effect on (i) the
operations, business, prospects, Property or conditions (financial or
otherwise), except for the status of the matters as described under "Risk
Factors-Factors Relating to American and its Business--Antitrust Matters" in the
1997 Preferred Stock Offering Circular (provided no material adverse change in
such status shall occur), of (a) the Borrower (excluding any interest of the
Borrower in the Tower Subsidiaries) or (b) the Borrower and its Restricted
Subsidiaries on a Consolidated basis, (ii) the ability of the Borrower or any
other Loan Party to perform its obligations under the Loan Documents to which it
is a party or (iii) the ability of the Administrative Agent, the Collateral
Agent or any of the Lenders to enforce any of the Loan Documents (other than as
a result of facts or circumstances pertaining to the Administrative Agent, the
Collateral Agent or such Lender which are not related to the Borrower or its
Restricted Subsidiaries).
"Maturity Date": December 31, 2004.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Equity Proceeds": as defined in section 2.5(h).
"1996 Convertible Exchangeable Preferred Stock Issuance": the
issuance of convertible exchangeable preferred Stock of the Borrower having a
total liquidation value (including any such Stock sold pursuant to the
over-allotment option of the initial purchasers) equal to $137,500,000, as
described in the Confidential Offering Circular, dated June 19, 1996.
"1996 Exchange Subordinated Indenture": in the event that the
Borrower elects to exchange shares of the preferred Stock issued in connection
with the 1996 Preferred Stock Issuance for 1996 Exchange Subordinated Indenture
Notes, the indenture between the Borrower and the applicable trustee relating
thereto, such indenture to contain subordination terms with respect to the Loan
Documents at least as favorable to the
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Administrative Agent, the Collateral Agent and the Lenders as those contained in
the ARS Subordinated Indenture and to be in form and substance reasonably
satisfactory to the Administrative Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with section
8.19.
"1996 Exchange Subordinated Indenture Notes": the subordinated notes,
issued pursuant to the 1996 Exchange Subordinated Indenture, such subordinated
notes to be subordinated to the Loan Documents at least to the same extent as
the ARS Subordinated Indenture Notes and to be in form and substance reasonably
satisfactory to the Administrative Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with section
8.19.
"1997 Exchange Subordinated Indenture": in the event that the
Borrower elects to exchange shares of the preferred Stock issued in connection
with the 1997 Preferred Stock Issuance for 1997 Exchange Subordinated Indenture
Notes, the indenture between the Borrower and the applicable trustee relating
thereto, such indenture to contain subordination terms with respect to the Loan
Documents at least as favorable to the Administrative Agent, the Collateral
Agent and the Lenders as those contained in the ARS Subordinated Indenture and
to be in form and substance reasonably satisfactory to the Administrative Agent,
as the same may be amended, supplemented or otherwise modified from time to time
in accordance with section 8.19.
"1997 Exchange Subordinated Indenture Notes": the subordinated notes,
issued pursuant to the 1997 Exchange Subordinated Indenture, such subordinated
notes to be subordinated to the Loan Documents at least to the same extent as
the ARS Subordinated Indenture Notes and to be in form and substance reasonably
satisfactory to the Administrative Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with section
8.19.
"1997 Preferred Stock Issuance": the issuance of exchangeable
preferred Stock (including any exchangeable preferred Stock issued in exchange
therefor) of the Borrower having a total liquidation value not to exceed
$200,000,000 (excluding any increase in total liquidation value resulting from
the Borrower's election to pay dividends in the form of additional shares of
such exchangeable preferred Stock), all as de scribed in the 1997 Preferred
Stock Offering Circular.
"1997 Preferred Stock Offering Circular": the Confidential
Preliminary Offering Circular, dated January 2, 1997.
"Non-License Subsidiary Broadcasting Stations": all Broadcasting
Stations the FCC licenses for which are not held by a License Subsidiary,
provided, however, that the term "Non-License Subsidiary Broadcasting Stations"
shall not include any Broadcasting Station held for disposition by the Borrower
or any Restricted Subsidiary for which the Borrower has notified the
Administrative Agent in writing thereof, provided that such decision to hold for
disposition is reasonably satisfactory to the Administrative Agent.
"Non Redeemable Preferred Stock": preferred Stock issued by the
Borrower which is not, under any contingency, at any time prior to three years
after the Maturity Date (except upon the occurrence of a Change of Control),
subject to any mandatory dividend, redemption or similar requirement (except to
the extent permitted by the provisions of section 8.4) and which is not
convertible or exchangeable into any Indebtedness or Stock (other than common
Stock or other Non Redeemable Preferred Stock or, solely at the option of the
Borrower, exchangeable into Permitted Subordinated Debt).
"Notes": the RC/TL Notes and the SD/TL Notes.
"Other Credit Agreement": the $550,000,000 Credit Agreement, dated as
of the date hereof, by and among the Borrower, The Bank of New York, as
collateral agent and administrative agent, The Chase Manhattan Bank and The
Toronto-Dominion Bank, as co-syndication agents, Bank of Montreal, Credit Suisse
First Boston, Fleet National Bank and Union Bank of California, N.A., as
managing agents, Barclays Bank
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PLC, as agent, Bank of America Illinois, The Sanwa Bank, Limited and ▇▇▇ ▇▇▇▇▇▇
American Capital Prime Rate Income Trust, as co-agents, and the lenders party
thereto, as the same may be amended, supplemented or otherwise modified from
time to time.
"Other Credit Agreement Loans": the Loans under and as defined in the
Other Credit Agreement.
"Operating Cash Flow": at any time, with respect to any Person, for
any period: (i) broadcasting revenues (exclusive of reciprocal and barter
revenues) of such Person, determined in accordance with GAAP, for such period,
less (ii) the sum of, without duplication: (a) station operating expenses
(exclusive of depreciation, amortization and reciprocal and barter expenses
included therein), (b) the amount of any cash payments related to non-cash
expense items added pursuant to clause (iii) below and (c) corporate office,
general and administrative expenses (exclusive of Finance Costs, depreciation
and amortization included therein), plus (iii) non-cash or non-recurring expense
items of such Person for such period, in each case mutu ally agreed upon between
the Borrower and the Administrative Agent, to the extent deducted in accordance
with clause (ii) above. Operating Cash Flow shall be adjusted on a consistent
basis to reflect the acquisition, sale, exchange and disposition of Property
during such period. Operating Cash Flow will exclude all extraordinary gains and
losses and all gains and losses from acquisitions, sales, exchanges and
dispositions of assets.
"PBB": Palm Beach Radio Broadcasting, Inc., a Delaware corporation.
"PBB Appreciation Rights": the rights granted by PBB to the Borrower
pursuant to the PBB Note Purchase Agreements to share in all or part of the
increase in the value of PBB.
"PBB Collateral Documents": the security agreements, by and between
PBB and the Borrower granting in favor of the Borrower a security interest in
substantially all assets of PBB and the pledge agreements, by and among each
shareholder of PBB and the Borrower pledging to the Borrower all issued and
outstanding Stock of PBB.
"PBB Documents": collectively, the PBB Stockholder Agreements, the
PBB Notes, the PBB Note Purchase Agreements and the PBB Collateral Documents.
"PBB Notes": the promissory notes issued by PBB to the Borrower,
including any accrued and unpaid interest which may have been paid in the form
of additional PBB Notes.
"PBB Note Purchase Agreements": the note purchase agreements between
PBB and the Borrower with respect to the PBB Appreciation Rights and the PBB
Notes.
"PBB Station Acquisitions": the acquisitions by PBB of the assets of
certain Broadcasting Stations pursuant to and in accordance with the PBB Note
Purchase Agreements.
"PBB Stockholder Agreements": the stockholder agreements, among PBB,
the Borrower and each of the shareholders of PBB.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA, or any Governmental Authority succeeding to
the functions thereof.
"PBI": Professional Broadcasting Inc., a wholly-owned, direct
subsidiary of EZ and a Commonwealth of Virginia corporation.
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"Permitted Liens": Liens permitted to exist pursuant to section 8.2.
"Permitted Subordinated Debt": unsecured subordinated Indebtedness of
the Borrower (which Indebtedness may be guaranteed on an unsecured subordinated
basis by one or more of the Restricted Subsidiaries), provided that such
Indebtedness (a) is issued on substantially the terms and conditions (or terms
more favorable to the Borrower, the Administrative Agent, the Collateral Agent
and the Lenders than those) set forth in the ARS Subordinated Indenture and is
in form and substance reasonably satisfactory to the Administrative Agent and
the Co-Syndication Agents, and (b) immediately before and after giving effect to
the incurrence of such subordinated Indebtedness, all representations and
warranties contained in the Loan Documents shall be true and correct and no
Default or Event of Default shall exist.
"Permitted Subordinated Indenture": in connection with any Permitted
Subordinated Debt, the indenture between the Borrower and the applicable trustee
relating thereto, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with section 8.19.
"Permitted Subordinated Indenture Notes": the subordinated notes,
issued pursuant to the Permitted Subordinated Indenture, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
section 8.19.
"Permitted Subordinated Indenture Subsidiary Guaranty": the
subordinated guaranty or guaranties, if any, executed and delivered by one or
more of the Restricted Subsidiaries in connection with the Permitted
Subordinated Indenture, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with section 8.19.
"Permitted Transferee": with respect to any natural Person, the
spouse, parents, brothers, sisters and children (natural or adopted) of such
Person and the trustees of an immediate family of such Person.
"Person": an individual, a partnership, a corporation, a business
trust, a joint stock company, a trust, an unincorporated association, a joint
venture, a limited liability company, a Governmental Authority or any other
entity of whatever nature.
"Plan": any pension plan which is covered by Title IV of ERISA and
which is maintained by or to which contributions are made by the Borrower or a
Commonly Controlled Entity or in respect of which the Borrower or a Commonly
Controlled Entity has or may have any liability.
"Preliminary Order": with respect to the acquisition or merger of any
Broadcasting Station, the FCC order consenting to such acquisition or merger
which has not been reversed, stayed, enjoined, set aside, annulled or suspended
and with respect to which no request for administrative or judicial review,
reconsideration, appeal or stay has been filed.
"Prepayment Fraction": in respect of any mandatory prepayment of the
Loans pursuant to section 2.5(d), (f), (g), (h) or (i), a fraction the numerator
of which is the aggregate outstanding principal amount of the Loans and the
denominator of which is the sum of the aggregate outstanding principal amount of
the Loans and the aggregate outstanding principal amount of the Other Credit
Agreement Loans, in each case determined immediately prior to such mandatory
prepayment.
"Principal Shareholders": ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
"Pro-Forma Debt Service": the sum of Pro-Forma Interest Expense and
the scheduled payments of principal (including scheduled mandatory reductions of
revolving credit and similar commitments) in respect of Total Debt required to
be made during the four fiscal quarters of the Borrower immediately succeeding
any determination thereof. For purposes of calculating Pro-Forma Debt Service,
the principal amount outstanding
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under any revolving or line of credit facility on the date of any calculation of
Pro-Forma Debt Service shall be assumed to be outstanding during the entire
applicable four fiscal quarter period, subject to any mandatory scheduled
payments of principal required to be made during such period.
"Pro-Forma Interest Expense": the sum of all interest (adjusted to
give effect to all Interest Rate Protection Arrangements and fees and expenses
paid in connection with the same, all as determined in accordance with GAAP) in
respect of Total Debt for the four fiscal quarters of the Borrower immediately
succeeding any determination thereof. Where any item of interest varies or
depends upon a variable rate of interest (or other rate of interest which is not
fixed for such entire four fiscal quarters), such rate, for purposes of
calculating Pro-Forma Interest Expense, shall be assumed to equal the Alternate
Base Rate plus the Applicable Margin in effect on the date of such calculation,
or, if such rate is a Eurodollar Rate, the applicable Eurodollar Rate plus the
Applicable Margin until the end of the applicable Interest Period and, for the
period after the end of such applicable Interest Period, the applicable
Eurodollar Rate plus the Applicable Margin in effect on the date of such
calculation (such applicable Eurodollar Rate being calculated with respect to a
Loan for a principal amount and for an Interest Period equal to the principal
amount and Interest Period of the Eurodollar Loan the Interest Period for which
has just ended). Also, for purposes of calculating Pro-Forma Interest Expense,
the principal amount outstanding under any revolving or line of credit facility
on the date of any calculation of Pro-Forma Debt Service shall be assumed to be
outstanding during the entire applicable four fiscal quarter period, subject to
any mandatory scheduled payments of principal required to be made during such
period.
"Property": all types of real, personal, tangible, intangible or
mixed property.
"Ratio Certificate": a certificate substantially in the form of
Exhibit H.
"RC/TL Commitment": as to any Lender, the amount set forth next to
the name of such Lender on Exhibit A under the heading "RC/TL Commitment", as
such RC/TL Commitment may be reduced from time to time pursuant to section 2.4.
"RC/TL Commitments": the RC/TL Commitments of all Lenders.
"RC/TL Commitment Percentage": as to any Lender, the percentage set
forth opposite the name of such Lender on Exhibit A under the heading "RC/TL
Commitment Percentage".
"RC/TL Commitment Period": the period from the Effective Date until
the RC/TL Commitment Termination Date.
"RC/TL Commitment Termination Date": the earlier of the Business Day
immediately preceding December 31, 1997 or such other date upon which the RC/TL
Commitments shall have been terminated in accordance with section 2.4 or 9.1.
"RC/TL Loan" and "RC/TL Loans": as defined in section 2.1(a).
"RC/TL Note" and "RC/TL Notes": as defined in section 2.2(a).
"Red Sox Network Contract": the agreement, dated as of July 29, 1993,
between the Borrower and Boston Red Sox Baseball Club, L.P. with respect to a
continuation of the rights of the Borrower to broadcast the Boston Red Sox
baseball games, as amended by Amendment No. 1, dated as of February 25, 1994,
and Amendment No. 2, dated as of May 18, 1995, and as the same may be further
amended, supplemented or otherwise modified from time to time.
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"Reinvested Proceeds": net cash proceeds from the sale, exchange or
other disposition of all or substantially all of a Broadcasting Station, after
giving effect to the payment of cash taxes payable in connection with the same,
which cash proceeds are used to acquire one or more additional Broadcasting
Stations through a merger or acquisition in accordance with section 8.3 during
the Reinvestment Period.
"Reinvestment Period": the period which is nine months from the date
that proceeds from the sale, exchange or other disposition of all or
substantially all of a Broadcasting Station, permitted pursuant to section 8.7,
are received by the Borrower.
"Related Party": with respect to any Principal Shareholder means (i)
any 80% (or more) owned Subsidiary or Immediate Family Member (in the case of an
individual) of such Principal Shareholder or (ii) any Person, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of such Principal Shareholder or an
Immediate Family Member, or (iii) any Person employed by the Borrower in a
management capacity as of the Effective Date.
"Remaining Interest Period": (i) in the event that the Borrower shall
fail for any reason to borrow or convert Loans after it shall have notified the
Administrative Agent of its intent to do so in which it shall have requested a
Eurodollar Loan pursuant to section 2.3 or 2.8, a period equal to the Interest
Period that the Borrower elected in respect of such Eurodollar Loan; (ii) in the
event that a Eurodollar Loan shall terminate for any reason prior to the last
day of the Interest Period applicable thereto, a period equal to the period from
and including the date of such termination to but excluding the last day of such
Interest Period; and (iii) in the event that the Borrower shall prepay or repay
all or any part of the principal amount of a Eurodollar Loan prior to the last
day of the Interest Period applicable thereto, a period equal to the period from
and including the date of such prepayment or repayment to but excluding the last
day of such Interest Period.
"Reportable Event": any event described in Section 4043(b) of ERISA,
other than an event (excluding an event described in Section 4043(b)(1) relating
to tax disqualification) with respect to which the 30-day notice requirement has
been waived.
"Required Lenders": at any date of determination, Lenders having
Credit Exposure equal to or greater than 51% of the Total Credit Exposure.
"Restricted Payment": as defined in section 8.4.
"Restricted Subsidiaries": all Subsidiaries of the Borrower, other
than (i) the Tower Subsidiaries, (ii) American Merger Corporation (a shell
corporation with no assets) and (iii), following the EZ Acquisition, Radio Data,
Inc.
"SD/TL Commitment": as to any Lender, the amount set forth next to
the name of such Lender on Exhibit A under the heading "SD/TL Commitment", as
such SD/TL Commitment may be reduced from time to time pursuant to section 2.4.
"SD/TL Commitments": the SD/TL Commitments of all Lenders.
"SD/TL Commitment Percentage": as to any Lender, the percentage set
forth opposite the name of such Lender on Exhibit A under the heading "SD/TL
Commitment Percentage".
"SD/TL Commitment Period": the period from the Effective Date until
the SD/TL Commitment Termination Date.
"SD/TL Commitment Termination Date": the earliest to occur of (i) the
first Borrowing Date with respect to SD/TL Loans, (ii) 60 days from the
consummation of the EZ Acquisition, (iii) the Business Day
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immediately preceding November 30, 1997, or (iv) such other date upon which the
SD/TL Commitments shall have been terminated in accordance with section 2.4 or
9.1.
"SD/TL Loan" and "SD/TL Loans": as defined in section 2.1(b).
"SD/TL Note" and "SD/TL Notes": as defined in section 2.2(b).
"Senior Debt": the aggregate Indebtedness of the Borrower and its
Restricted Subsidiaries (other than the Indebtedness evidenced by the ARS
Subordinated Indenture Notes, the ARS Subordinated Indenture Subsidiary
Guaranty, the 1996 Exchange Subordinated Indenture Notes, the 1997 Exchange
Subordinated Indenture Notes, the Permitted Subordinated Indenture Notes and the
Permitted Subordinated Indenture Subsidiary Guaranty) on a Consolidated basis,
determined in accordance with GAAP.
"Senior Leverage Ratio": the ratio of Senior Debt to Consolidated
Annual Operating Cash Flow.
"Signatory Corporation": any corporation (other than the
Administrative Agent, the Collateral Agent, the Co-Syndication Agents, the
Managing Agents, the Agent, the Co-Agents or the Lenders) which is a party to,
or an Authorized Signatory of, any Loan Document.
"Single Employer Plan": any Plan which is not a Multiemployer Plan.
"Solvent": with respect to any Person as of any date of
determination, on such date (i) the fair value of the assets of such Person
(both at fair valuation and at present fair saleable value) is, as of such date
of determination, greater than the total amount of liabilities, including,
without limitation, contingent and unliquidated liabilities, of such Person,
(ii) such Person is able to pay all of its liabilities as they mature, and (iii)
such Person does not have unreasonably small capital with which to carry on its
business. In computing the amount of contingent or unliquidated liabilities at
any time, such liabilities will be computed at the amount which, in light of all
the facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability.
"Special Counsel": ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, special counsel to
the Administrative Agent and the Collateral Agent.
"Station Annual Cash Flow": at any time with respect to any
Broadcasting Station, Station Cash Flow of such Broadcasting Station for the
immediately preceding four fiscal quarters for which financial statements have
been delivered pursuant to section 7.1, or in the event that the date of
determination is a fiscal quarter ending date, the fiscal quarter then ended and
the immediately preceding three fiscal quarters.
"Station Cash Flow": at any time, with respect to any Broadcasting
Station, for any period: (i) broadcasting revenues (exclusive of reciprocal and
barter revenues) of such Broadcasting Station, determined in accordance with
GAAP, for such period, less (ii) station operating expenses (exclusive of
depreciation, amortization and reciprocal and barter expenses included therein)
of such Broadcasting Station for such period.
"Station Sale Measuring Period": for any date of determination, the
period commencing on the first day of the immediately preceding four fiscal
quarter period for which financial statements have been delivered pursuant to
section 7.1 (or, in the event that such date of determination is a fiscal
quarter ending date, the first day of the four fiscal quarter period ending on
such date of determination) through and including such date of determination.
"Stock": any and all shares, interests, participations, options,
warrants or other equivalents (however
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designated) of corporate stock, including, without limitation, so called phantom
stock.
"Stock Option Plan": the Amended and Restated 1993 Stock Option Plan
of Borrower, as the same may be amended, supplemented or otherwise modified from
time to time.
"Subsidiary": any corporation, association, partnership, joint
venture or other business entity of which the Borrower and/or any Subsidiary of
the Borrower, directly or indirectly, either (i) in respect of a cor poration,
owns or controls more than 50% of the outstanding Stock having ordinary voting
power to elect a majority of the board of directors or similar managing body,
irrespective of whether or not a class or classes shall or might have voting
power by reason of the happening of any contingency, or (ii) in respect of an as
sociation, partnership, joint venture or other business entity, is entitled to
share in more than 50% of the profits and losses, however determined.
"Subsidiary Guaranty": the Subsidiary Guaranty and Security
Agreement, dated as of the date hereof, made by the Restricted Subsidiaries to
the Collateral Agent, substantially in the form attached hereto as Exhibit J, as
the same may be amended, supplemented or otherwise modified from time to time.
"Subsidiary Guarantor": each Restricted Subsidiary.
"Taxes": any present or future income, stamp or other taxes, levies,
imposts, duties, fees, assessments, deductions, withholding, or other charges of
whatever nature, now or hereafter imposed, levied, collected, withheld, or
assessed by any jurisdiction, or by any department, agency, state or other
political subdivision thereof or therein.
"Tax Sharing Agreement": the Tax Sharing Agreement, dated as of
October 15, 1996, among the Borrower and its Subsidiaries, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
section 8.13.
"Top 75 Markets": domestic markets ranked 1-75 by a nationally
recognized independent source as measured in terms of radio advertising revenue.
"Total Combined Credit Exposure": at any time, the sum, without
duplication, of the Combined Credit Exposures of all Lenders hereunder and all
Lenders (as defined in the Other Credit Agreement) at such time.
"Total Credit Exposure": at any time, the sum of the Credit Exposures
of all Lenders at such time.
"Total Debt": the aggregate Indebtedness of the Borrower and its
Restricted Subsidiaries on a Consolidated basis, determined in accordance with
GAAP.
"Total Leverage Ratio": the ratio of Total Debt to Consolidated
Annual Operating Cash Flow.
"Tower Subsidiaries": collectively, American Tower Systems Holding
Corporation, a Delaware corporation, and its subsidiaries.
1.2 Principles of Construction.
(a) All terms defined in this Agreement shall have the
meanings given such terms herein when used in the Loan Documents or any
certificate or other document made or delivered pursuant hereto or thereto,
unless otherwise defined therein.
(b) Unless otherwise specified herein, as used in the Loan
Documents and in any cer tificate, opinion or other document made or delivered
pursuant hereto or thereto, all accounting terms used herein shall be
interpreted, and all accounting determinations hereunder shall be made, in
accordance with GAAP.
(c) The words "hereof", "herein", "hereto" and "hereunder"
and similar words when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section,
paragraph, schedule and exhibit references contained herein shall refer to
sections or paragraphs hereof or schedules or exhibits hereto unless otherwise
expressly provided herein.
(d) The word "or" shall not be exclusive; "may not" is
prohibitive and not permissive; and the singular includes the plural.
(e) Unless otherwise specifically set forth herein, all
references to time shall refer to New York City time.
2. AMOUNT AND TERMS OF LOANS.
2.1 Loans.
(a) RC/TL Loans. Subject to the terms and conditions hereof,
each Lender having an RC/TL Commitment agrees to make loans (each an "RC/TL
Loan" and, collectively with the other RC/TL Loans of such Lender and/or with
the RC/TL Loans of each other Lender, the "RC/TL Loans") to the Borrower from
time to time during the RC/TL Commitment Period. At all times during the RC/TL
Commit ment Period, the Borrower may borrow, prepay and reborrow RC/TL Loans in
accordance with the provisions hereof, provided that the aggregate unpaid
principal amount of all RC/TL Loans at any one time outstanding during the RC/TL
Commitment Period shall not exceed the RC/TL Commitments then in effect of all
the Lenders, and provided further that the aggregate unpaid principal amount of
each Lender's RC/TL Loans at any one time outstanding during the RC/TL
Commitment Period shall not exceed such Lender's RC/TL Com mitment. The
principal amount of each Lender's RC/TL Loan made on a Borrowing Date shall be
an amount equal to its RC/TL Commitment Percentage of all RC/TL Loans made on
such date. Subject to the provisions of sections 2.3, 2.8 and 2.15, RC/TL Loans
may be (i) ABR Loans, (ii) Eurodollar Loans or (iii) any combination thereof.
(b) SD/TL Loans. Subject to the terms and conditions hereof,
each Lender having an SD/TL Commitment agrees to make a single loan (its "SD/TL
Loan" and, collectively with the other SD/TL Loans of each other Lender, the
"SD/TL Loans") to the Borrower during the SD/TL Commitment Period. At any one
time during the SD/TL Commitment Period, the Borrower may borrow the SD/TL Loans
in accordance with the provisions hereof, provided that the aggregate principal
amount of all SD/TL Loans being borrowed on such Borrowing Date shall not exceed
the SD/TL Commitments then in effect of all the Lenders, and provided further
that the principal amount of each Lender's SD/TL Loan being borrowed on such
Borrowing Date shall not exceed such Lender's SD/TL Commitment. The principal
amount of each Lender's SD/TL Loan made on such Borrowing Date shall be an
amount equal to its SD/TL Commitment Percentage of all SD/TL Loans made on such
date. Subject to the provisions of sections 2.3, 2.8 and 2.15, SD/TL Loans may
be (i) ABR Loans, (ii) Eurodollar Loans or (iii) any combination thereof.
2.2 Notes.
(a) RC/TL Notes. The RC/TL Loans of each Lender shall be
evidenced by a promissory note in the form of Exhibit B-1 (each as indorsed or
modified from time to time, including all
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replacements thereof and substitutions therefor, an "RC/TL Note" and,
collectively with the RC/TL Note of each other Lender, the "RC/TL Notes"), dated
the Effective Date, payable to the order of such Lender, in the maximum stated
principal amount equal to such Lender's RC/TL Commitment. Each RC/TL Note shall
(i) be dated the Effective Date, (ii) be stated to mature on the Maturity Date
and (iii) bear interest on the unpaid principal amount thereof at the applicable
interest rate or rates per annum determined as provided in section 2.6, payable
as specified in section 2.6. Each Lender is hereby irrevocably authorized by the
Borrower to enter on the schedule attached to its RC/TL Note and/or in its
internal books and records the amount of each RC/TL Loan made by it thereunder,
each payment thereon, and the other information provided for on such schedule,
and such schedule and books and records shall be presumptively correct absent
manifest error as to the amount of such Lender's RC/TL Loans and as to the
amount of principal and interest paid by the Borrower in respect of such RC/TL
Loans and as to the other information set forth on such schedule or books and
records relating to the RC/TL Loans, provided, however, that the failure to make
any such entry (or any error therein) with respect to any RC/TL Loan shall not
limit or otherwise affect the obligations of the Borrower hereunder or under
such RC/TL Note. Each Lender may attach one or more continuations to such
schedule as and when required. In all events, the principal amount owing by the
Borrower to each Lender in respect of such Lender's RC/TL Note shall be the
aggregate amount of all RC/TL Loans made by such Lender thereunder less all
payments of principal thereon made by the Borrower.
(b) SD/TL Notes. The SD/TL Loan of each Lender shall be
evidenced by a promissory note in the form of Exhibit B-2 (each as indorsed or
modified from time to time, including all replacements thereof and substitutions
therefor, an "SD/TL Note" and, collectively with the SD/TL Note of each other
Lender, the "SD/TL Notes"), dated the Effective Date, payable to the order of
such Lender, in the maximum stated principal amount equal to such Lender's SD/TL
Commitment. Each SD/TL Note shall (i) be dated the Effective Date, (ii) be
stated to mature on the Maturity Date and (iii) bear interest on the unpaid
principal amount thereof at the applicable interest rate or rates per annum
determined as provided in section 2.6, payable as specified in section 2.6. Each
Lender is hereby irrevocably authorized by the Borrower to enter on the schedule
attached to its SD/TL Note and/or in its internal books and records the amount
of the SD/TL Loan made by it thereunder, each payment thereon, and the other
information provided for on such schedule, and such schedule and books and
records shall be presumptively correct absent manifest error as to the amount of
such Lender's SD/TL Loan and as to the amount of principal and interest paid by
the Borrower in respect of such SD/TL Loan and as to the other information set
forth on such schedule or books and records relating to the SD/TL Loan,
provided, however, that the failure to make any such entry (or any error
therein) with respect to such SD/TL Loan shall not limit or otherwise affect the
obligations of the Borrower hereunder or under such SD/TL Note. Each Lender may
attach one or more continuations to such schedule as and when required. In all
events, the principal amount owing by the Borrower to each Lender in respect of
such Lender's SD/TL Note shall be the amount of the SD/TL Loan made by such
Lender thereunder less all payments of principal thereon made by the Borrower.
2.3 Procedure for Borrowing Loans.
(a) The Borrower may borrow (i) RC/TL Loans on any Business
Day occurring during the RC/TL Commitment Period or (ii) SD/TL Loans on any
Business Day occurring during the SD/TL Commitment Period, provided that, with
respect to any requested borrowing, the Borrower shall notify the Administrative
Agent (by telephone or telecopy) no later than 11:00 A.M., three Business Days
prior to the requested Borrowing Date, in the case of Eurodollar Loans, and no
later than 11:00 A.M., one Business Day prior to the requested Borrowing Date,
in the case of ABR Loans (the same Business Day in the case of ABR Loans on the
first Borrowing Date), specifying (i) the aggregate amounts to be borrowed under
the RC/TL Commitments or the SD/TL Commitments, as the case may be, (ii) the
requested Borrowing Date, (iii) whether the borrowing is to be a Eurodollar
Loan, an ABR Loan, or a combination thereof, and (iv) if the borrowing is to be
a Eurodollar Loan, the length of the initial Interest Period for such Eurodollar
Loan. Each such notice shall be irrevocable and confirmed immediately by
delivery to the Administrative Agent of a Bor rowing Request. Each borrowing of
RC/TL Loans or SD/TL Loans, as the case may be, consisting of ABR
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Loans shall be in an aggregate principal amount equal to $1,000,000 or such
amount plus an integral multiple of $500,000 in excess thereof or, if less, the
unused amount of the RC/TL Commitments or the SD/TL Commitments, as the case may
be. Each borrowing of RC/TL Loans or SD/TL Loans, as the case may be, consisting
of Eurodollar Loans shall be in a minimum aggregate principal amount equal to
$5,000,000 or an integral multiple of $1,000,000 in excess thereof. Upon receipt
of each notice of borrowing from the Borrower, the Administrative Agent shall
promptly notify each Lender (by telephone or otherwise, such notice to be
confirmed by telecopy or other writing) of the requested borrowing. Subject to
its receipt of the notice referred to in the preceding sentence and to the other
terms and conditions of this Agreement, each Lender will make the amount of its
applicable RC/TL Commitment Percentage or SD/TL Commitment Percentage, as the
case may be, of each borrowing available to the Administrative Agent for the
account of the Borrower at the office of the Administrative Agent set forth in
section 11.2 not later than 12:00 Noon, on the Borrowing Date requested by the
Borrower, in funds immediately available to the Administrative Agent at such
office. The amounts so made available to the Administrative Agent on a Borrowing
Date will then, subject to the satisfaction of the terms and conditions of this
Agreement as determined by the Administrative Agent, be made available on such
date to the Borrower by the Administrative Agent, in immediately available
funds, at the of fice of the Administrative Agent specified in section 11.2 by
crediting the account of the Borrower on the books of such office with the
aggregate of said amounts received by the Administrative Agent.
(b) Unless the Administrative Agent shall have received
prior notice from a Lender (by telephone or otherwise, such notice to be
confirmed by telecopy or other writing) that such Lender will not make available
to the Administrative Agent such Lender's pro rata share of the Loans requested
by the Borrower, the Administrative Agent may assume that such Lender has made
such share available to the Administrative Agent on such Borrowing Date in
accordance with this section 2.3 provided that such Lender received notice of
the proposed borrowing from the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower on
such Borrowing Date a corresponding amount. If and to the extent such Lender
shall not have so made such pro rata share available to the Administrative
Agent, such Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount (to the extent not
previously paid by the other), together with interest thereon for each day from
the date such amount is made available to the Borrower until the date such
amount is paid to the Administrative Agent, at a rate per annum equal to, in the
case of the Borrower, the applicable interest rate set forth in section 2.6,
and, in the case of such Lender, the Federal Funds Rate in effect on such date
(as determined by the Administrative Agent). Such payment by the Borrower,
however, shall be without prejudice to its rights against such Lender. If such
Lender shall pay to the Administrative Agent such corresponding amount, such
amount so paid shall constitute such Lender's Loan as part of such Loans for
purposes of this Agreement, which Loan shall be deemed to have been made by such
Lender on the Borrowing Date applicable to such Loans.
2.4 Termination or Reduction of Commitments.
(a) Voluntary Reductions. The Borrower shall have the right,
upon at least three Business Days' prior irrevocable written notice to the
Administrative Agent, to reduce permanently the RC/TL Commitments or the SD/TL
Commitments in whole at any time, or in part from time to time, without premium
or penalty, to an amount not less than the sum of the aggregate outstanding
principal balance of (i) the RC/TL Loans, if reducing the RC/TL Commitments, or
(ii) the SD/TL Loans, if reducing the SD/TL Commitments, in each case after
giving effect to any contemporaneous prepayment thereof, provided that each
partial reduction of such Commitments shall be in a minimum amount of $5,000,000
or such amount plus a whole multiple thereof or, if less, the aggregate amount
of the RC/TL Commitments or the SD/TL Commitments, as the case may be, then in
effect.
(b) Mandatory Reductions of Commitments.
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On each date that a prepayment is made pursuant to section
2.5(d), (f), (g), (h) or (i), the RC/TL Commitments shall be automatically and
permanently reduced in an amount equal to the amount of the required prepayment
of the RC/TL Loans.
(c) Application of Reductions.
(i) Each reduction of the RC/TL Commitments or the SD/TL
Commitments, as the case may be, made pursuant to this section 2.4 shall effect
a corresponding reduction of each Lender's applicable Commitment by an amount
equal to such Lender's applicable Commitment Percentage of such reduction.
(ii) Simultaneously with each reduction of any of the
Commitments under this section 2.4, the Borrower shall pay the applicable
Commitment Fee accrued on the amount by which such Com mitments have been
reduced.
2.5 Prepayments of the Loans.
(a) Voluntary Prepayments. The Borrower may, at its option,
prepay the RC/TL Loans or the SD/TL Loans, in whole or in part, without premium
or penalty, at any time and from time to time, by notifying the Administrative
Agent at least three Business Days' prior to the proposed prepayment date with
respect to Eurodollar Loans, and at least two Business Days prior to the
proposed prepayment date with respect to ABR Loans. Each such notice shall be in
writing and shall specify the Loans to be prepaid (whether RC/TL Loans or SD/TL
Loans and whether Eurodollar Loans or ABR Loans), the amount to be prepaid, and
the date of prepayment. Upon receipt by the Administrative Agent of any such
notice, the Administrative Agent shall promptly notify each Lender thereof. If
any such notice of the Borrower is given pursuant to this section 2.5, such
notice shall be irrevocable and the payment amount specified in such notice
shall be due and payable on the date specified, together with accrued interest
to the date of such payment on the amount prepaid. Partial prepayments of ABR
Loans shall be in an aggregate principal amount of $500,000 or an integral
multiple thereof and partial prepayments of Eurodollar Loans shall be in an
aggregate principal amount of $1,000,000 or an integral multiple thereof, or, if
less, the outstanding principal balance of the RC/TL Loans or the SD/TL Loans,
as the case may be.
(b) Mandatory Scheduled Amortization of RC/TL Loans. The
Borrower shall, so long as any RC/TL Loans are outstanding, on each date set
forth below, make a scheduled repayment of the outstanding principal amount of
the RC/TL Loans, together with accrued interest on all such amounts so repaid,
in the following percentages of the aggregate outstanding principal balance of
the RC/TL Loans as of 5:00 P.M. on March 30, 1999:
Dates Percentages
March 31, 1999 1.3750%
June 30, 1999 1.3750%
September 30, 1999 1.3750%
December 31, 1999 1.3750%
March 31, 2000 2.7500%
June 30, 2000 2.7500%
September 30, 2000 2.7500%
December 31, 2000 2.7500%
March 31, 2001 4.1250%
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June 30, 2001 4.1250%
September 30, 2001 4.1250%
December 31, 2001 4.1250%
March 31, 2002 4.7500%
June 30, 2002 4.7500%
September 30, 2002 4.7500%
December 31, 2002 4.7500%
March 31, 2003 5.5625%
June 30, 2003 5.5625%
September 30, 2003 5.5625%
December 31, 2003 5.5625%
March 31, 2004 6.4375%
June 30, 2004 6.4375%
September 30, 2004 6.4375%
December 31, 2004 6.4375%
(c) Mandatory Scheduled Amortization of SD/TL Loans. The
Borrower shall, so long as any SD/TL Loans are outstanding, on each date set
forth below, make a scheduled repayment of the outstanding principal amount of
the SD/TL Loans, together with accrued interest on all such amounts so repaid,
in the following percentages of the aggregate outstanding principal balance of
the SD/TL Loans as of 5:00 P.M. on March 30, 1999:
Dates Percentages
March 31, 1999 1.3750%
June 30, 1999 1.3750%
September 30, 1999 1.3750%
December 31, 1999 1.3750%
March 31, 2000 2.7500%
June 30, 2000 2.7500%
September 30, 2000 2.7500%
December 31, 2000 2.7500%
March 31, 2001 4.1250%
June 30, 2001 4.1250%
September 30, 2001 4.1250%
December 31, 2001 4.1250%
March 31, 2002 4.7500%
June 30, 2002 4.7500%
September 30, 2002 4.7500%
December 31, 2002 4.7500%
March 31, 2003 5.5625%
June 30, 2003 5.5625%
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September 30, 2003 5.5625%
December 31, 2003 5.5625%
March 31, 2004 6.4375%
June 30, 2004 6.4375%
September 30, 2004 6.4375%
December 31, 2004 6.4375%
(d) Mandatory Prepayments Relating to Excess Cash Flow. On the
earlier of (i) the date the annual financial statements in respect of each
fiscal year (commencing with the fiscal year ending December 31, 1998), are
delivered to the Administrative Agent pursuant to section 7.1(a) or (ii) the
90th day following the end of each such fiscal year (commencing with the fiscal
year ending December 31, 1998), the Borrower shall make a prepayment of the
Loans in an aggregate amount equal to the Prepayment Fraction multiplied by 50%
of Excess Cash Flow with respect to such fiscal year, provided that no such
prepayment in respect of such fiscal year shall be required if (x) the Total
Leverage Ratio as at the end of such fiscal year is less than 5.00:1.00 and (y)
no Default or Event of Default shall exist.
(e) Mandatory Prepayments of Loans. The Borrower shall
immediately prepay the RC/TL Loans at any time at which the aggregate
outstanding principal amount of the outstanding RC/TL Loans, during the RC/TL
Commitment Period, exceeds the aggregate RC/TL Commitments of all Lenders, in
each case in an amount equal to the amount of such excess.
(f) Mandatory Prepayments Relating to Proceeds of Insurance.
The Borrower shall prepay the Loans in the aggregate amounts and at the times
and to the extent required by section 7.5.
(g) Mandatory Prepayments Relating to Proceeds of Broadcasting
Station Sales and Sales and Leasebacks of Property. The Borrower shall prepay
the Loans in an aggregate amount equal to the Prepayment Fraction multiplied by
the difference between (i) 100% of the proceeds of the sale, exchange or other
disposition of (A) all or substantially all of any Broadcasting Station of the
Borrower or any of its Restricted Subsidiaries (other than any Broadcasting
Station listed on Schedule 8.7), or (B) any Property pursuant to section 8.7(c),
(net of (1) sales and other commissions and legal and other expenses incurred,
(2) cash taxes payable (or which would have been payable but for the existence
of the Tax Sharing Agreement with respect solely to the Tower Subsidiaries), and
(3) Indebtedness permitted under sections 8.1(ii) and (iv) which is required to
be repaid and is repaid) in excess of $25,000,000 (measured with respect to each
transaction involving one or more such sales, exchanges or other dispositions),
and (ii) the amount of Reinvested Proceeds in connection with such sale,
exchange or other disposition which have been used prior to the date prepayment
is required to be made to acquire one or more additional Broadcasting Stations
through a merger or acquisition in accordance with section 8.3. Such prepayment
shall be made on the earlier of (x) the last day of the Reinvestment Period with
respect to such sale, exchange or other disposition, or (y) the occurrence of a
Default or Event of Default.
(h) Mandatory Prepayments Relating to Issuances of Equity. The
Borrower shall prepay the Loans immediately upon receipt by the Borrower of the
aggregate proceeds of any issuance by the Borrower of equity (net of sales and
other commissions and legal and other related expenses incurred in connection
with such issuance) (the "Net Equity Proceeds") to the extent such Net Equity
Proceeds exceed $100,000,000 on a cumulative basis measured from the Effective
Date (excluding the issuance of equity under and in accordance with the Stock
Option Plan and the 1997 Preferred Stock Issuance and the issuance of equity to
the extent the proceeds are used as provided in the last paragraph of this
section 2.5(h)), in an amount equal to:
(i) if the Total Leverage Ratio is greater than 6.50:1.00,
the lesser of (x) the Prepayment Fraction multiplied by 100% of the Net Equity
Proceeds and (y) if no Default or Event of Default shall then exist, the amount
of the Net Equity Proceeds which when applied to the prepayment of Senior Debt
will result in the Total Leverage Ratio being equal to 6.50:1.00;
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(ii) if the Total Leverage Ratio is greater than 5.00:1.00
but less than or equal to 6.50:1.00 (whether before or after giving effect to
clause (i) above), the lesser of (x) the Prepayment Fraction multiplied by 50%
of the Net Equity Proceeds (excluding the amount of Net Equity Proceeds prepaid
pursuant to clause (i) above) if no Default or Event of Default shall then exist
and (y) if no Default or Event of Default shall then exist, the amount of the
Net Equity Proceeds which when applied to the prepayment of Senior Debt will
result in the Total Leverage Ratio not exceeding 5.00:1.00; and
(iii) if a Default or Event of Default shall then exist, the
Prepayment Fraction multiplied by 100% of the Net Equity Proceeds.
Notwithstanding the foregoing, provided that no Default or Event of Default
shall exist immediately before or after giving effect thereto, if such equity
issuance is, among other things, for the express purpose of financing the
acquisition of the stock or assets of a specified Broadcasting Station pursuant
to section 8.3, Net Equity Proceeds shall not be required to be applied to
prepay the Loans to the extent the proceeds from such equity issuance are used
for such purchase.
(i) Mandatory Prepayments Relating to Dividends. The Borrower
shall prepay the Loans in the amounts and at the times and to the extent
required by section 8.4(b).
(j) Application of Prepayments. All prepayments of Loans made
pursuant to section 2.5(d), (f), (g), (h) or (i) shall be applied pro rata
between the RC/TL Loans and the SD/TL Loans in accordance with the respective
outstanding principal amounts thereof and, in each case, applied against the
remaining installments of principal required to be made pursuant to section
2.5(b) or (c), as the case may be, on a pro rata basis among such remaining
installments.
(k) In General. If any prepayment is made under this section
2.5 with respect to any Eurodollar Loans, in whole or in part, prior to the last
day of the applicable Interest Period, the Borrower agrees to indemnify the
Lenders in accordance with section 2.9. After giving effect to any partial
prepayment with respect to Eurodollar Loans which were made (whether as the
result of a borrowing or a conversion) on the same date and which had the same
Interest Period, the outstanding principal amount of such Eurodollar Loans shall
not be less than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof. The Borrower may designate which Loans (ABR Loans or Eurodollar Loans)
are to be prepaid in connection with any prepayment made under this section 2.5.
2.6 Interest Rate and Payment Dates; Highest Lawful Rate.
(a) Prior to Maturity. Prior to maturity, the outstanding
principal amount of the Loans shall bear interest on the unpaid principal amount
thereof at the Alternate Base Rate or the Eurodollar Rate, as applicable, plus
the Applicable Margin.
(b) Default Rate. During the continuance of any Event of
Default, the outstanding principal amount of all Loans hereunder shall bear
interest, notwithstanding the rate which would otherwise be applicable pursuant
to section 2.6(a) above, at a rate of interest per annum equal to 2% above such
otherwise applicable rate.
(c) Late Payment Rate. Any payment of interest on any Note or
any payment of any Commitment Fee or other fee or payment payable by the
Borrower under any Loan Document and not paid on the date when due and payable
shall bear interest, to the extent permitted by law, at the Alternate Base Rate
plus the Applicable Margin for ABR Loans plus 2% per annum from the due date
thereof until the date such payment is made.
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(d) General. Interest on ABR Loans, to the extent based on the
BNY Rate, shall be calculated on the basis of a 365 or 366 day year (as the case
may be), and interest on all Eurodollar Loans and ABR Loans, to the extent based
on the Federal Funds Rate, shall be calculated on the basis of a 360 day year,
in each case for the actual number of days elapsed. Interest shall be payable in
arrears on each Interest Payment Date and upon payment (including prepayment) of
the Loans, except that interest payable pursuant to sections 2.6(b) and 2.6(c)
shall be payable on demand. 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 in the Alternate Base Rate, but failure to so notify shall not in
any manner affect the obligation of the Borrower to pay interest on the Loans in
the amounts and on the dates required. Each determination of the Alternate Base
Rate or Eurodollar Rate by the Administrative Agent pursuant to this Agreement
shall be conclusive and binding on the Borrower and the Lenders absent manifest
error.
(e) Highest Lawful Rate. At no time shall the interest rate
payable on the Loans of any Lender, together with the Commitment Fees and all
other fees and other amounts payable hereunder, to the extent the same are
construed to constitute interest, exceed the Highest Lawful Rate applicable to
such Lender. If interest payable to a Lender on any date would exceed the
maximum amount permitted by the Highest Lawful Rate, such interest payment shall
automatically be reduced to such maximum permitted amount, and interest for any
subsequent period, to the extent less than the maximum amount permitted for such
period by the Highest Lawful Rate, shall be increased by the unpaid amount of
such reduction. Any interest actually received for any period in excess of such
maximum allowable amount for such period shall be deemed to have been applied as
a prepayment of such Lender's Loans. The Borrower acknowledges that to the
extent interest payable on ABR Loans is based on the BNY Rate, such BNY Rate is
only one of the bases for computing interest on loans made by the Lenders, and
by basing interest payable on ABR Loans on the BNY Rate, the Lenders have not
committed to charge, and the Borrower has not in any way bargained for, interest
based on a lower or the lowest rate at which the Lenders may now or in the
future make loans to other borrowers.
2.7 Use of Proceeds.
(a) The proceeds of the RC/TL Loans made hereunder (together
with the proceeds of the Other Credit Agreement Loans) shall be used first to
repay in full all obligations under the Existing Credit Agreement and,
thereafter, (i) to repay in full the Existing EZ Indebtedness, (ii) to finance
the EZ Acquisition, (iii) to finance acquisitions of Broadcasting Stations
permitted hereunder, including transaction expenses in connection therewith,
(iv) to make capital expenditures permitted hereunder, (v) to make investments
in the Tower Subsidiaries permitted hereunder, (vi) for working capital purposes
and (vii) for general corporate purposes.
(b) The proceeds of the SD/TL Loans made hereunder shall be
used solely to repay any or all of the EZ Indenture Notes.
(c) Notwithstanding anything to the contrary contained in any
Loan Document, the Borrower agrees that no part of the proceeds of any Loan have
been or will be used, directly or indirectly, for a purpose which violates any
law, rule or regulation of any Governmental Authority, including without
limitation the provi sions of Regulations G, T, U or X of the Board of Governors
of the Federal Reserve System, as amended.
2.8 Conversions; Other Matters.
(a) The Borrower may elect from time to time to convert
Eurodollar Loans to ABR Loans by giving the Administrative Agent at least two
Business Days' prior irrevocable notice of such election, specifying whether
such Eurodollar Loans comprise RC/TL Loans or SD/TL Loans and the amount to be
so converted, provided, that any such conversion shall only be made on the last
day of the Interest Period applicable thereto. In addition, the Borrower may
elect from time to time to convert ABR Loans to Eurodollar Loans or to
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convert Eurodollar Loans to new Eurodollar Loans by giving the Administrative
Agent at least three Business Days' prior irrevocable notice of such election,
specifying whether such ABR Loans comprise RC/TL Loans or SD/TL Loans and the
amount to be so converted and the initial Interest Period relating thereto,
provided that any such conversion of ABR Loans to Eurodollar Loans shall only be
made on a Business Day and any such conver sion of Eurodollar Loans to new
Eurodollar Loans shall only be made on the last day of the Interest Period
applicable to the Eurodollar Loans which are to be converted to such new
Eurodollar Loans. The Administrative Agent shall promptly provide the Lenders
with notice of any such election. Loans may be converted pursuant to this
section 2.8(a) in whole or in part, provided that conversions of ABR Loans to
Eurodollar Loans, or Eurodollar Loans to new Eurodollar Loans having the same
Interest Period, shall be in an aggregate principal amount of $5,000,000 or such
amount plus a whole multiple of $1,000,000.
(b) Notwithstanding anything in this Agreement to the
contrary, upon the occurrence and during the continuance of a Default or Event
of Default, the Borrower shall have no right to elect to convert any ABR Loan to
a Eurodollar Loan or to convert any Eurodollar Loan to a new Eurodollar Loan. In
such event, such ABR Loan shall be automatically continued as an ABR Loan or
such Eurodollar Loan shall be automatically converted to an ABR Loan on the last
day of the Interest Period applicable to such Eurodollar Loan. If a Default or
an Event of Default shall have occurred and be continuing, the Administrative
Agent shall, at the request of the Required Lenders, notify the Borrower (by
telephone or otherwise) that all, or such lesser amount as the Administrative
Agent and the Required Lenders shall designate, of the outstanding Eurodollar
Loans, if any, shall be automatically converted to ABR Loans, in which event
such Eurodollar Loans of each Lender, at the option of such Lender, shall be
automatically converted to ABR Loans on the date such notice is given.
(c) Each such conversion shall be effected by each Lender by
applying the proceeds of the new ABR Loan or Eurodollar Loan, as the case may
be, to the Loan (or portion thereof) being converted (it being understood that
such conversion shall not constitute a borrowing for purposes of sections 4 or
5).
(d) Notwithstanding any other provision of this Agreement:
(i) If the Borrower shall have failed to elect a
Eurodollar Loan under sections 2.3 or 2.8, as the case may be, in
connection with any borrowing of new Loans or expiration of an Interest
Period with respect to any existing Eurodollar Loan, the amount of the
Loans subject to such borrowing or such existing Eurodollar Loan shall
thereafter be an ABR Loan until such time, if any, as the Borrower
shall elect a new Eurodollar Loan pursuant to section 2.8,
(ii) The Borrower shall not be permitted to select
any Eurodollar Loan the Interest Period in respect of which ends later
than the Maturity Date,
(iii) When electing a Eurodollar Loan, the Borrower
shall select an Interest Period such that, on each date that a
mandatory principal payment is required to be made pursuant to section
2.5(e) in connection with a Commitment reduction pursuant to section
2.4(b), the outstanding principal amount of all Loans which are ABR
Loans, when added to the aggregate principal amount of all Loans which
are Eurodollar Loans the Interest Period in respect of which shall end
on such date, shall equal or exceed the aggregate principal amount of
the Loans required to be paid on such date, and
(iv) The Borrower shall not be permitted to have more
than twelve Interest Periods with respect to outstanding Eurodollar
Loans (when added to the number of Interest Periods with respect to
outstanding Eurodollar Loans, in each case under and as defined in the
Other Credit Agreement) at any one time.
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2.9 Indemnification for Loss.
Subject to section 2.17 and notwithstanding anything contained
herein to the contrary, if the Borrower shall fail to borrow or convert a Loan
after it shall have given notice to do so in which it shall have requested a
Eurodollar Loan pursuant to section 2.3 or 2.8, as the case may be, or if a
Eurodollar Loan shall be terminated for any reason prior to the last day of the
Interest Period applicable thereto, or if any repayment or prepayment of the
principal amount of a Eurodollar Loan is made for any reason on a date which is
prior to the last day of the Interest Period applicable thereto, the Borrower
agrees to indemnify each Lender against, and to pay on demand directly to such
Lender, any loss or expense suffered by such Lender as a result of such failure
to borrow or convert, or such termination, repayment or prepayment, including
without limitation, an amount equal to:
A x (B-C) x D
360
in which:
"A" equals such Lender's pro rata share of the Affected Principal Amount;
"B" equals the Eurodollar Rate (expressed as a decimal) applicable to such
Eurodollar Loan;
"C" equals the Eurodollar Rate (expressed as a decimal) which would be
applicable to a Eurodollar Loan made on or about the date of such failure to
borrow or convert, or such termination, repayment or prepayment, in an amount
equal approximately to such Lender's pro rata share of the Affected Principal
Amount and having an In terest Period equal approximately to the Remaining
Interest Period with respect thereto; and
"D" equals the number of days during such Remaining Interest Period;
and any other out-of-pocket loss, cost or expense (including any internal
processing charge customarily charged by such Lender) suffered by such Lender in
liquidating or employing deposits acquired to fund or maintain the funding of
the Affected Principal Amount, or redeploying funds prepaid or repaid, in
amounts which correspond to such Lender's pro rata share of such proposed
borrowing, conversion, terminated Eurodollar Loan, prepayment or repayment.
2.10 Reimbursement for Costs.
The Borrower hereby agrees to reimburse each Lender on demand
for such Lender's reasonable costs (excluding general administrative and
overhead costs) directly attributable to its compliance with this Agreement
during the term hereof with all applicable future laws, executive orders, and
regulations of the govern ments of the United States and the United Kingdom, and
of any other applicable government, and of any regulatory or administrative
agency thereof (including, without limitation, the reserve requirements
established by the Board of Governors of the Federal Reserve System under
Regulation D), or any change in existing or fu ture applicable laws, executive
orders and regulations and in the interpretations thereof which impose, modify
or deem applicable any reserve, asset, special deposit or special assessment
requirements on deposits obtained in the interbank eurodollar market, or which
subject any Lender to any tax (documentary, stamp or otherwise) with respect to
this Agreement or any Note, or change the basis of taxation of payments to any
Lender, of principal, interest or fees payable under this Agreement or any Note
(except for any tax, or changes in the rate of tax, on each Lender's income or
receipts (including franchise taxes on or based upon such income or receipts)
imposed by the United States or any other jurisdiction). Each such Lender agrees
to provide the Borrower with notice of any law, executive order or regulation,
or change in the interpretation thereof, which would require the Borrower to
indemnify such Lender under this section 2.10 promptly upon such Lender
obtaining actual knowledge thereof and determining that it intends to require
the Borrower to reimburse it pursuant to this section 2.10 for any costs
resulting therefrom. The cost to each Lender in complying with laws, executive
orders or regulations which
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impose, modify or deem applicable any reserve, asset, special deposit or special
assessment requirements on deposits obtained in the market for eurocurrency
loans shall be computed by determining the amount by which such requirements
effectively increase such Lender's cost of making and maintaining its Eurodollar
Loans and by computing the additional amount which would have been owing to such
Lender hereunder if such effective increase had been added to the Eurodollar
Rate for purposes of determining the applicable Eurodollar Rate during the
period or applicable portion thereof in question. Each Lender may make multiple
requests for compensation under this section 2.10.
2.11 Illegality of Funding.
Subject to section 2.17 and notwithstanding anything contained
herein to the contrary, if any law, regulation, treaty or directive, or any
change therein or in the interpretation or application thereof, shall make it
unlawful for any Lender to make or maintain any Eurodollar Loan as contemplated
by this Agreement, (i) the commitment of such Lender to make Eurodollar Loans or
convert ABR Loans to Eurodollar Loans, as the case may be, shall forthwith be
suspended and (ii) such Lender's Loans then outstanding as Eurodollar Loans
affected thereby, if any, shall be converted automatically to ABR Loans on the
last day of the then current Interest Period applicable thereto or at such
earlier time as may be required. If the commitment of any Lender with respect to
Eurodollar Loans is suspended pursuant to this section 2.11 and such Lender
shall notify the Administrative Agent and the Borrower that it is once again
legal for such Lender to make or maintain Eurodollar Loans, such Lender's
commitment to make or maintain Eurodollar Loans shall be reinstated.
2.12 Option to Fund.
Each Lender has indicated that, if the Borrower requests a
Eurodollar Loan, such Lender may wish to purchase one or more deposits in order
to fund or maintain its funding of its pro rata share of such Loan during the
Interest Period with respect thereto; it being understood that the provisions of
this Agreement relating to such funding are included only for the purpose of
determining the rate of interest to be paid on such Loan and any amounts owing
under sections 2.9, 2.10, 2.11 and 2.15. Each Lender shall be entitled to fund
and maintain its funding of all or any part of its Eurodollar Loans in any
manner it sees fit, but all such determinations hereunder shall be made as if
each Lender had actually funded and maintained its Eurodollar Loans during the
applicable Interest Period through the purchase of deposits in an amount equal
to its pro rata share of the Eurodollar Loans having a maturity corresponding to
such Interest Period. Any Lender may fund its pro rata share of the Eurodollar
Loans from any branch or office of such Lender as such Lender may choose from
time to time, subject to section 2.17.
2.13 Taxes; Net Payments.
(a) All payments made by the Loan Parties under the Loan
Documents shall be made free and clear of, and without reduction for or on
account of, any Taxes required by law to be withheld from any amounts payable
under the Loan Documents. In the event that any Loan Party is prohibited by law
from making payments hereunder free of deductions or withholdings, then it shall
pay such additional amounts to the Administrative Agent, for the benefit of the
Lenders, as may be necessary in order that the actual amounts received by each
Lender in respect of interest and any other amounts payable under the Loan
Documents after deduction or withholding (and after payment of any additional
Taxes or other charges due as a consequence of the payment of such additional
amounts) shall equal the amount that would have been received if such deduction
or withholding were not required. If any Loan Party shall make any payments
under this section 2.13(a) or shall make any deductions or withholdings from
amounts paid under the Loan Documents, it shall forthwith forward to the
Administrative Agent original or certified copies of official receipts or other
evidence acceptable to the Administrative Agent establishing such payment and
the Administrative Agent in turn shall distribute copies of such receipts to
each Lender.
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(b) Each Lender shall deliver to the Borrower and the
Administrative Agent such certificates, documents, or other evidence as the
Borrower or the Administrative Agent may reasonably require from time to time as
are necessary to establish that such Lender is not subject to withholding under
Section 1441, 1442 or 3406 of the Code or as may be necessary to establish,
under any law imposing an obligation to withhold any portion of the payments
made by the Borrower under the Loan Documents, that payments to the
Administrative Agent on behalf of such Lender are not subject to withholding.
Notwithstanding any provision herein to the contrary, the Borrower shall have no
obligation to pay to any Lender any amount which the Borrower is liable to
withhold due to the failure of such Lender to file any statement of exemption
required by the Code.
2.14 Capital Adequacy.
If the amount of capital required or expected to be maintained
by any Lender or any Person di rectly or indirectly owning or controlling such
Lender (each a "Control Person"), shall be affected by
(a) the introduction or phasing in of any law, rule or
regulation after the date hereof,
(b) any change after the date hereof in the interpretation
of any existing law, rule or regula tion by any central
bank or United States or foreign Governmental Authority
charged with the administration thereof, or
(c) compliance by such Lender or such Control Person with
any directive, guideline or request from any central
bank or United States or foreign Governmental Authority
(whether or not having the force of law) promulgated or
made after the date hereof,
and such Lender shall have determined that such introduction, phasing in, change
or compliance shall have had or will thereafter have the effect of reducing (i)
the rate of return on such Lender's or such Control Person's capital, or (ii)
the asset value to such Lender or such Control Person of the Loans made or
maintained by such Lender to a level below that which such Lender or such
Control Person could have achieved or would thereafter be able to achieve but
for such introduction, phasing in, change or compliance (after taking into
account such Lender's or such Control Person's policies regarding capital), in
either case by an amount which such Lender deems material, then, within ten days
after demand by such Lender, the Borrower shall pay to such Lender or such
Control Person such additional amount or amounts as shall be sufficient to
compensate such Lender or such Control Person, as the case may be, for such
reduction on an after-tax basis.
2.15 Substituted Interest Rate.
In the event that (i) the Administrative Agent shall have
determined (which determination shall be conclusive and binding upon the
Borrower) that by reason of circumstances affecting the interbank eurodollar
market either adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate applicable pursuant to section 2.6 or (ii) in the event that any
Lender shall have notified the Administrative Agent that it has determined
(which determination shall be conclusive and binding on the Borrower) that the
applicable Eurodollar Rate will not adequately and fairly reflect the cost to
such Lender of maintaining or funding loans bearing interest based on such
Eurodollar Rate, with respect to a proposed Loan that the Borrower has requested
be made as a Eurodollar Loan, or a Eurodollar Loan that will result from the
requested conversion of any Loan into a Euro dollar Loan (any such Loan being
herein called an "Affected Loan"), the Administrative Agent shall promptly
notify the Borrower and the Lenders (by telephone or otherwise) of such
determination, confirmed in writing, on or prior to the requested Borrowing Date
for such Affected Loan or the requested conversion date of such Loan. If the
Administrative Agent shall give such notice, (a) any requested Affected Loan
shall be made as an ABR Loan, (b) any Loan that was to have been converted to an
Affected Loan shall be converted to or continued as an ABR Loan and (c) any
outstanding Affected Loan shall be converted, on the last day of the then
current Interest Period with respect thereto, to an ABR Loan. Until any such
notice under clause (i) of this section 2.15 has been
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withdrawn by the Administrative Agent (by notice to the Borrower promptly upon
the Administrative Agent's having determined that such circumstances affecting
the interbank eurodollar market no longer exist and that adequate and reasonable
means do exist for determining the Eurodollar Rate pursuant to section 2.6) no
further Eurodollar Loans shall be made by the Lenders nor shall the Borrower
have the right to convert any Loans to Eurodollar Loans. Until any such notice
under clause (ii) of this section 2.15 has been withdrawn by the Administrative
Agent (by notice to the Borrower promptly upon the Administrative Agent's having
been notified by such Lender that circumstances no longer render any Loan an
Affected Loan), no further Eurodollar Loans shall be required to be made by such
Lender nor shall the Borrower have the right to convert any Loan of such Lender
to a Eurodollar Loan of such Lender.
2.16 Transaction Record.
The Administrative Agent's records regarding the amount of
each Loan, each payment by the Borrower of principal and interest on the Loans
and other information relating to the Loans shall be presumptively correct
absent manifest error.
2.17 Certificates of Payment and Reimbursement; Other Provisions
Regarding Yield Protection.
(a) In connection with any request by a Lender for payment or
reimbursement pursuant to section 2.9, 2.10, 2.11, 2.14 or 2.15, such Lender
shall provide the Borrower with a certificate, signed by an officer of such
Lender, setting forth a description, in reasonable detail, of any such payment
or reimbursement. Each Lender's determination of such amount or amounts owned by
the Borrower to it under any such section shall be presumed correct absent
manifest error, and shall be made without duplication as to any other amounts
owing by the Borrower to such Lender under section 2.9, 2.10, 2.11, 2.14 or
2.15.
(b) In the event that any amount is owed by the Borrower to
any Lender pursuant to section 2.9, 2.10, 2.11, 2.14 or 2.15 and an assignment
by such Lender of its rights and a delegation and transfer of its obligations
hereunder to another office or branch of such Lender would cause such amount to
cease to be owed by the Borrower, then such Lender shall make all reasonable
efforts (which shall not in any event require such Lender to incur a loss or
otherwise suffer any disadvantage) to make an assignment of its rights and a
delegation and transfer of its obligations hereunder to such other office or
branch, so long as such assignment and delegation will not cause other amounts
to be owed by the Borrower under section 2.9, 2.10, 2.11, 2.14 or 2.15 and so
long as the Lender shall be permitted under applicable law to make and maintain
Eurodollar Loans after giving effect to such assignment and delegation.
(c) The obligations of the Borrower under sections 2.9, 2.10,
2.11, 2.14 and 2.15 shall survive any termination of this Agreement, the
expiration of the RC/TL Commitments and the SD/TL Commitments and the payment of
all indebtedness of the Borrower hereunder and under the Loan Documents.
3. FEES; PAYMENTS
3.1 Commitment Fees.
(a) The Borrower agrees to pay to the Administrative Agent for
the account of the Lenders the following fees computed on the basis of a 365/366
day year for the actual number of days elapsed (each, a "Commitment Fee" and,
collectively, the "Commitment Fees"):
(i) in accordance with each Lender's RC/TL Commitment
Percentage, a fee payable quarterly in arrears during the RC/TL Commitment
Period on the last day of each March, June, Sep tember and December of each
year, commencing on the first such date following the Effective Date, and on the
RC/TL Commitment Termination Date, on the average daily excess of (i) the
aggregate RC/TL Commitments of all the Lenders, over (ii) the aggregate
outstanding principal balance of the RC/TL Loans, at a rate per annum equal to
(a) at all times when the Total Leverage Ratio is greater than or equal to
5.0:1.0, 0.1875% and (b) at all times when the Total Leverage Ratio is less than
5.0:1.0, 0.1250%; and
(ii) in accordance with each Lender's SD/TL Commitment
Percentage, a fee payable quarterly in arrears during the SD/TL Commitment
Period on the last day of each March, June, Sep tember and December of each
year, commencing on the first such date following the Effective Date, and on the
SD/TL Commitment Termination Date, on the aggregate SD/TL Commitments of all the
Lenders, at a rate per annum equal to (a) at all times when the Total Leverage
Ratio is greater than or equal to 5.0:1.0, 0.1875% and (b) at all times when the
Total Leverage Ratio is less than 5.0:1.0, 0.1250%.
(b) Solely for purposes of calculating the Commitment Fees,
changes in the Total Leverage Ratio, as evidenced by a Ratio Certificate
delivered to the Administrative Agent pursuant to section 7.1(d) evi dencing
such a change, shall become effective upon the first Business Day following the
delivery of (i) the Ratio Certificate and (ii) the applicable financial
statements required to be delivered pursuant to section 7.1(a) or (c), as the
case may be. Solely for purposes of calculating the Commitment Fees, if the
Borrower shall fail to deliver a Ratio Certificate within 45 days after the end
of each of the first three fiscal quarters, or within 90 days after the end of
the last fiscal quarter, of each fiscal year (each a "certificate delivery
date"), the Total Leverage Ratio from and including such certificate delivery
date to the date of delivery by the Borrower to the Administrative Agent of such
Ratio Certificate shall be conclusively presumed to be greater than 5.00:1.00.
3.2 Pro Rata Treatment and Application of Payments.
All payments (including prepayments) made by the Borrower to
the Administrative Agent on ac count of principal of or interest on the RC/TL
Loans or the SD/TL Loans shall be made pro rata according to the outstanding
principal amount of each Lender's RC/TL Loans or SD/TL Loans, as the case may
be. All payments by the Borrower shall be made without set-off or counterclaim
and shall be made prior to 12:00 Noon on the date such payment is due, to the
Administrative Agent for the account of the Lenders, at the Administrative
Agent's office specified in section 11.2, in each case in lawful money of the
United States of America and in immediately available funds, and, as between the
Borrower and the Lenders, any payment by the Borrower to the Administrative
Agent for the account of the Lenders shall be deemed to be payment by the
Borrower to the Lenders. The failure of the Borrower to make any such payment by
12:00 Noon on such due date shall not constitute a Default or Event of Default
hereunder, provided that such payment is made on such due date, but any such
payment received by the Administrative Agent on any Business Day after 12:00
Noon shall be deemed to have been received on the immediately succeeding
Business Day for the purpose of calculating any interest payable in respect
thereof. The Administrative Agent agrees promptly to notify the Borrower if it
shall receive any such payment after 12:00 Noon on the due date hereof, provided
that the failure of the Administrative Agent to give such prompt notice shall in
no way affect the Borrower's obligation to make any payment hereunder on the
date such payment is due. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. Unless
otherwise set forth in the definition of "Interest Period", if any payment
hereunder or on any Note becomes due and payable on a day other than a Business
Day, the maturity thereof shall be extended to the next succeeding Business Day
and, with respect to payments of principal, interest thereon shall be payable at
the then applicable rate or rates during such extension.
4. REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent, the Collateral Agent, the
Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents and the
Lenders to enter into this Agreement and to make the Loans, the Borrower hereby
makes the following representations and warranties to the Administrative Agent,
the Collateral Agent, the Co-Syndication Agents, the Managing Agents, the Agent,
the Co-Agents and to each Lender:
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4.1 Subsidiaries.
The Borrower has only the Subsidiaries set forth on Schedule
4.1. The shares of each corporate Subsidiary owned by the Borrower are duly
authorized, validly issued, fully paid and nonassessable. The shares of each
Restricted Subsidiary are owned free and clear of any Liens, except (i) Liens in
favor of the Collateral Agent and the Lenders pursuant to the Collateral
Documents and (ii) Permitted Liens.
4.2 Corporate Existence and Power.
The Borrower and each Restricted Subsidiary is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, has all requisite corporate power and authority to own its
Property and to carry on its business as now conducted, and is in good standing
and authorized to do busi ness in each jurisdiction in which the failure to be
so authorized could reasonably be expected to have a Material Adverse Effect.
4.3 Corporate Authority.
The Borrower and each other Loan Party has full corporate
power and authority to enter into, execute, deliver and carry out the terms of
the Loan Documents to which it is a party, to make the borrowings contemplated
hereby, to execute, deliver and carry out the terms of the Notes and to incur
the obligations provided for herein and therein, all of which have been duly
authorized by all proper and necessary corporate action and are in full
compliance with its certificate of incorporation and by-laws.
4.4 Governmental Authority Approvals.
No consent, authorizations or approval of, filing with, notice
to, or exemption by, stockholders, any Governmental Authority or any other
Person (except for those which have been obtained, made or given and those which
will be obtained, made or given prior to the Effective Date) is required to
authorize, or is required in connection with the execution, delivery and
performance of the Loan Documents, or is required as a condition to the validity
or, except as expressly set forth in the Collateral Documents with respect to
the FCC, the enforceability of the Loan Documents. Except as set forth in the
preceding sentence, no provision of any applicable statute, law (including,
without limitation, any applicable usury or similar law), rule or regulation of
any Governmental Authority will prevent the execution, delivery or performance
of, or affect the validity of, the Loan Documents.
4.5 Binding Agreement.
The Loan Documents constitute the valid and legally binding
obligations of the Borrower and each other Loan Party to which it is a party,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally.
4.6 Litigation.
Except as set forth in Schedule 4.6, there are no actions,
suits, arbitration proceedings or claims (whether or not purportedly on behalf
of the Borrower or any Subsidiary) pending or, to the knowledge of the Borrower,
threatened against the Borrower or any Subsidiary, or maintained by the Borrower
or any Subsidiary, at law or in equity, before any Governmental Authority which
could reasonably be expected to have a Material Adverse Effect. There are no
proceedings pending or, to the knowledge of the Borrower, threatened against the
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Borrower or any Restricted Subsidiary which call into question the validity or
enforceability of any of the Loan Documents.
4.7 No Conflicting Agreements.
Except as set forth in Schedule 4.7, neither the Borrower nor
any Subsidiary is in default under any mortgage, indenture, contract, agreement,
judgment, decree or order to which it is a party or by which it or any of its
Property is bound, which defaults, taken as a whole, could reasonably be
expected to have a Material Adverse Effect. The execution, delivery or carrying
out of the terms of the Loan Documents will not constitute a default under,
conflict with, require any consent under (other than consents which have been
obtained) or result in the creation or imposition of, or obligation to create,
any Lien upon the Property of the Borrower or any Subsi diary pursuant to the
terms of any such mortgage, indenture, contract, agreement, judgment, decree or
order, which defaults, conflicts and consents, if not obtained, taken as a
whole, could reasonably be expected to have a Material Adverse Effect.
4.8 Taxes.
Except as set forth on Schedule 4.8, the Borrower and each
Subsidiary has filed or caused to be filed all tax returns required to be filed
and has paid, or has made adequate provision for the payment of, all Taxes shown
to be due and payable on said returns or in any assessments made against it
which would be material to the Borrower or any Subsidiary, and no tax Liens
(other than Permitted Liens) have been filed. Except as set forth on Schedule
4.8, the charges, accruals and reserves on the books of the Borrower and each
Subsidiary with respect to all federal, state, local and other Taxes are, to the
best knowledge of the Borrower, adequate, and the Borrower knows of no unpaid
assessment which is due and payable against it or any Subsidiary or any claims
being asserted which could reasonably be expected to have a Material Adverse
Effect, except such thereof as are being contested in good faith and by
appropriate proceedings diligently conducted, and for which adequate reserves
have been set aside in accordance with GAAP.
4.9 Compliance with Applicable Laws.
Neither the Borrower nor any Subsidiary is in default with
respect to any judgment, order, writ, injunction, decree or decision of any
Governmental Authority which default could reasonably be expected to have a
Material Adverse Effect. The Borrower and each Subsidiary is complying in all
material respects with all applicable statutes and regulations, including ERISA,
of all Governmental Authorities, a violation of which could reasonably be
expected to have a Material Adverse Effect.
4.10 Governmental Regulations.
Neither the Borrower nor any Subsidiary is subject to
regulation under the Public Utility Holding Company Borrower Act of 1935, the
Federal Power Act or the Investment Company Act of 1940, and neither the
Borrower nor any Subsidiary is subject to any statute or regulation which
prohibits or restricts the incurrence of Indebtedness under this Agreement or
the Notes, including, without limitation, statutes or regulations relative to
common or contract carriers or to the sale of electricity, gas, steam, water,
telephone, telegraph or other public utility services.
4.11 Property; Broadcasting Business.
The Borrower and each Restricted Subsidiary has good and,
except with respect to FCC licenses which cannot be transferred without the
consent of the applicable Governmental Authority, marketable title to all of its
Property, title to which is material to the Borrower and the Restricted
Subsidiaries taken as a whole, subject to no Liens, except Liens in favor of the
Collateral Agent and the Lenders pursuant to the Collateral Documents and
Permitted Liens. Except for the radio licenses relating to KUPL-FM, KKJZ-FM,
WQRS-FM, WFLN-FM
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and WAAF-FM, and except as otherwise permitted by section 7.11, the License
Subsidiaries are the registered holders of radio licenses duly issued by the FCC
in respect of all Broadcasting Stations owned and operated by the Borrower and
each Restricted Subsidiary. Such licenses constitute all of the authorizations
by the FCC or any other Governmental Authority necessary for the operation of
the business of the Borrower and each Restricted Subsidiary substantially in the
manner presently being conducted by it, and such licenses are validly issued and
in full force and effect, unimpaired by any act or omission by the Borrower or
such Restricted Subsidiary. To the best of the Borrower's knowledge, except as
set forth in Schedule 4.11, neither the Borrower nor any Restricted Subsidiary
is a party to any investigation, notice of violation, order or complaint issued
by or before the FCC. Except as set forth in Schedule 4.11, there are no
proceedings by or before the FCC, which could in any manner materially threaten
or adversely affect the validity of any of such licenses. Neither the Borrower
nor any Restricted Subsidiary has knowledge of a threat of any investigation,
notice of violation, order, complaint or proceeding before the FCC, and has no
reason to believe that any of such licenses will not be renewed in the ordinary
course.
4.12 Federal Reserve Regulations; Use of Loan Proceeds.
Neither the Borrower nor any Restricted Subsidiary is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. No part of
the proceeds of the Loans will be used, directly or indirectly, for a purpose
which violates any law, rule or regulation of any Governmental Authority,
including without limitation the provisions of Regulations G, T, U or X of the
Board of Governors of the Federal Reserve System, as amended. Following
application of the proceeds of each Loan, not more than 25% (or such greater or
lesser percentage as is provided in the exclusions from the definition of
"Indirectly Secured" contained in Regulation G and Regulation U in effect at the
time of the making of such Loan) of the value of the assets of (i) the Borrower
and (ii) the Borrower and the Re stricted Subsidiaries on a Consolidated basis,
will be Margin Stock.
4.13 No Misrepresentation.
No representation or warranty contained herein and no
certificate or report furnished or to be furnished by the Borrower or any
Restricted Subsidiary in connection with the transactions contemplated hereby,
contains or will contain a misstatement of material fact, or, to the best
knowledge of the Borrower or any Restricted Subsidiary omits or will omit to
state a material fact required to be stated in order to make the state ments
herein or therein contained not misleading in the light of the circumstances
under which made.
4.14 Plans.
The Borrower and each Subsidiary have only the Plans listed on
Schedule 4.14. Each Single Employer Plan and, to the best knowledge of the
Borrower, each Multiemployer Plan is in compliance in all material respects with
the applicable provisions of ERISA and the Code, and the Borrower and each
Subsidiary have filed all reports required to be filed by them under ERISA and
the Code with respect to each such Plan. The Borrower and each Subsidiary have
met all material requirements imposed by ERISA and the Code with respect to the
funding of all Plans, including Multiemployer Plans. Since the effective date of
ERISA, there have not been, nor are there now existing, any events or conditions
which would permit any Single Employer Plan or, to the best knowledge of the
Borrower, Multiemployer Plan to be terminated under circumstances which would
cause the Lien provided under Section 4068 of ERISA to attach to the Property of
the Borrower or any Subsidiary. Since the effective date of ERISA, no Reportable
Event which may constitute grounds for the termination of any Single Employer
Plan or, to the best knowledge of the Borrower, Multiemployer Plan under Title
IV of ERISA has occurred and no Single Employer Plan or Multiemployer Plan has
been terminated in whole or in part.
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4.15 FCC Matters.
The Borrower and each Restricted Subsidiary (i) have duly and
timely filed all filings which are required to be filed by the Borrower and each
Restricted Subsidiary under the Communications Act and the rules and regulations
of the FCC, the failure to file of which could reasonably be expected to have a
Material Adverse Effect, and (ii) are in all material respects in compliance
with the Communications Act, including, without limi tation, the rules and
regulations of the FCC relating to the transmission of radio signals.
4.16 Burdensome Obligations.
Neither the Borrower nor any Restricted Subsidiary is a party
to or bound by any franchise, agreement, deed, lease or other instrument, or
subject to any corporate restriction which, in the opinion of the management of
the Borrower, is so unusual or burdensome, in the context of the Borrower's or
such Restricted Subsidiary's business, as in the foreseeable future might
materially and adversely affect or impair the revenue or Operating Cash Flow of
the Borrower or any Restricted Subsidiary or the ability of the Borrower or any
Restricted Subsidiary to perform its respective obligations under the Loan
Documents. The Borrower does not presently anticipate that future expenditures
needed to meet the provisions of federal or state statutes, orders, rules or
regulations will be so burdensome as to have a Material Adverse Effect.
4.17 Financial Statements.
The Borrower has heretofore delivered to the Lenders a copy of
(i) the annual audited consolidated Balance Sheet of the Borrower and its
Subsidiaries as of December 31, 1995, together with the related consolidated
Statements of Operations, Shareholders' Equity and Cash Flows for the period
then ended, and (ii) the unaudited consolidated Balance Sheets of the Borrower
and its Subsidiaries as of March 31, 1996, June 30, 1996 and September 30, 1996,
together with the related consolidated Statements of Operations, Shareholders'
Equity and Cash Flows for the periods then ended. The foregoing financial
statements fairly present the consolidated financial condition and results in
the operations of the Borrower and its Subsidiaries as of the dates and for the
periods indicated therein and have been prepared in conformity with GAAP. Except
as reflected in such financial statements or in the footnotes thereto, neither
the Borrower nor any of its Subsidiaries has any obligation or liability of any
kind (whether fixed, accrued, contingent, unmatured or otherwise) which, in
accordance with GAAP, should have been shown on such financial statements and
was not. Since December 31, 1995, the Borrower and its Restricted Subsidiaries
have conducted their business only in the ordinary course (except with respect
to the acquisitions of Broadcasting Stations permitted by the terms hereof or
the Existing Credit Agreement or otherwise consented to by the Required Lenders
(or the Required Lenders under the Existing Credit Agreement), and except as set
forth in the March 31, 1996, June 30, 1996 and September 30, 1996 financial
statements referred to above), and there has been no Material Adverse Change.
4.18 Environmental Matters.
Except as set forth on Schedule 4.18, neither the Borrower nor
any Subsidiary (i) has received written notice or otherwise learned of any
claim, demand, action, event, condition, report or investigation indicating or
concerning any potential or actual liability which individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect arising
in connection with (a) any non-compliance with or violation of the requirements
of any Environmental Law, or (b) the release or threatened release of any toxic
or hazardous waste, substance or constituent, or other substance into the
environment, (ii) to the best knowledge of the Borrower, has any threatened or
actual liability in connection with the release or threatened release of any
toxic or hazardous waste, substance or constituent, or other substance into the
environment which individually or in the aggregate could reasonably be expected
to have a Material Adverse Effect, (iii) has received notice of any federal or
state investigation evaluating whether any remedial action is needed to respond
to a release or threatened release of any toxic or hazardous waste, substance or
constituent or other substance into the environment for which the Borrower or
any Subsidiary is or may be liable, or (iv) has received notice that the
Borrower or any Subsidiary is or may be liable to any Person under any
Environmental Law. The Borrower and each Subsidiary is in
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compliance in all material respects with the financial responsibility
requirements of all Environmental Laws to the extent applicable, including,
without limitation, those contained in 40 C.F.R., parts 264 and 265, subpart H,
and any analogous state law.
5. CONDITIONS OF LENDING
5.1 First Loans
In addition to the requirements set forth in section 5.2, the
obligation of each Lender to make one or more Loans on the first Borrowing Date
is subject to the fulfillment of the following conditions precedent:
(a) Evidence of Corporate Action. The Administrative Agent
shall have received a certificate, dated the first Borrowing Date, of the
Secretary or an Assistant Secretary of each Signatory Corpora tion (i) attaching
a true and complete copy of the resolutions of its Board of Directors and of all
documents evidencing all necessary corporate action (in form and substance
reasonably satisfactory to the Administrative Agent) taken by it to authorize
the Loan Documents to which it is a party and the transactions contemplated
thereby, (ii) attaching a true and complete copy of its certificate of
incorporation and by-laws, (iii) setting forth the incumbency of its officer or
officers who may sign such Loan Documents, including therein a signature
specimen of such officer or officers and (iv) attaching a certificate of good
standing of the Secretary of State of the State of its incorporation and of each
other State in which it is qualified to do business.
(b) Notes. The Borrower shall have delivered to the
Administrative Agent the Notes, each duly executed on behalf of the Borrower by
an Authorized Signatory thereof.
(c) No Liens. The Administrative Agent shall have received a
certificate of the Borrower, signed by an Authorized Signatory thereof, dated
the first Borrowing Date, certifying that, upon the making of the first Loans,
there exist no Liens on the Collateral other than Permitted Liens.
(d) Subsidiary Guaranty and Borrower Security Agreement. The
Borrower shall have delivered to the Administrative Agent (i) the Subsidiary
Guaranty, dated as of the Effective Date, duly executed on behalf of each
Restricted Subsidiary by an Authorized Signatory thereof, (ii) the Borrower
Security Agreement, dated as of the Effective Date, duly executed on behalf of
the Borrower by an Authorized Signatory thereof, (iii) one or more share
certificates, representing all of the issued and outstanding Stock of each of
the Restricted Subsidiaries including, without limitation, the ARS License
Subsidiary, together with undated stock powers, duly executed in blank on behalf
of the Borrower by an Authorized Signatory thereof and bearing an appropriate
signature guarantee in all respects satisfactory to the Administrative Agent, in
respect of each such certificate, and (iv) all documents evidencing intercompany
Indebtedness owing to the Borrower.
(e) ARS License Subsidiary Management Agreement. The ARS
License Subsidiary Management Agreement shall have been executed and delivered
by Authorized Signatories of the ARS License Subsidiary and the Borrower, and a
copy thereof shall have been delivered to the Administrative Agent.
(f) Filing of Financing Statements. The Borrower shall have
executed and caused to be filed or delivered to the Administrative Agent such
financing statements and other documents with respect to the Collateral
Documents as the Administrative Agent or Special Counsel may request for the
purpose of perfecting the Liens granted thereunder. All filing fees and Taxes in
connection with the filing of the Collateral Documents shall have been paid or
otherwise provided for and the Administrative Agent and Special Counsel shall
have re ceived satisfactory evidence thereof.
(g) Existing Indebtedness. Prior to or simultaneously with the
making of the first Loans,
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the Borrower shall have paid all Indebtedness under the Existing Credit
Agreement, and all agreements with re spect thereto shall have been cancelled or
terminated, all Liens, if any, securing the same shall have been terminated, and
the Administrative Agent shall have received reasonably satisfactory evidence
thereof.
(h) Approvals. The Administrative Agent shall have received
evidence reasonably satisfactory to it that all approvals and consents of all
Persons required to be obtained in connection with the consummation of the
transactions contemplated by the Loan Documents have been obtained and that all
required notices have been given and all required waiting periods have expired.
(i) Litigation. There shall be no injunction, writ,
preliminary restraining order or other order of any nature issued by any
Governmental Authority in any respect affecting any Loan Document, or any
transaction contemplated by the Loan Documents and no action or proceeding by or
before any Governmental Authority shall have been commenced and be pending
seeking to prevent or delay any of the foregoing or challenging any term or
provision thereof or seeking any damages in connection therewith, and the
Administrative Agent shall have received a certificate, in all respects
reasonably satisfactory to the Administrative Agent, of an Authorized Signatory
of the Borrower to the foregoing effect.
(j) Approval of Special Counsel. All legal matters incident to
the making of the Loans on the first Borrowing Date shall be reasonably
satisfactory to Special Counsel, and the Administrative Agent shall have
received from Special Counsel an opinion, dated the first Borrowing Date,
substantially in the form of Exhibit E.
(k) Opinion of Counsel to the Borrower and the Subsidiaries.
The Administrative Agent shall have received opinions of counsel to the Borrower
and its Subsidiaries, dated the first Borrowing Date, sub stantially in the form
of Exhibit F.
(l) Opinion of FCC Counsel to the Borrower and the
Subsidiaries. The Administrative Agent shall have received opinions of special
FCC counsel to the Borrower and its Subsidiaries, dated the first Borrowing
Date, substantially in the form of Exhibit G.
(m) Payment of Fees. The Borrower shall have paid to the
Administrative Agent and the Lenders all fees and expenses which it shall have
agreed to pay, to the extent such fees and expenses have become payable on or
prior to the first Borrowing Date, and shall have paid the reasonable fees and
disbursements of Special Counsel.
(n) Financial Statements and Financial Projections. The
Borrower shall have delivered to the Administrative Agent and the Lenders the
financial statements referred to in section 4.17 together with such projections
and other information as the Administrative Agent and the Lenders shall
reasonably require, all of which shall be in all material respects satisfactory
to the Administrative Agent and the Lenders.
(o) Ratio Certificate. The Administrative Agent shall have
received a Ratio Certificate duly executed by an Authorized Signatory of the
Borrower.
(p) Other Documents. The Administrative Agent shall have
received such other documents as the Administrative Agent shall reasonably
require in connection with the making of the first Loans.
5.2 All Loans
The obligation of the Lenders to make any Loan on a Borrowing
Date is subject to the satis faction of the following conditions precedent as of
the date of such Loan:
(a) Compliance. On each Borrowing Date and after giving effect
to the Loans to be made
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or created thereon, (i) the Loan Parties shall be in compliance with all of the
terms, covenants and conditions of the Loan Documents, (ii) there shall exist no
Default or Event of Default, (iii) the representations and warranties contained
in the Loan Documents shall be true and correct with the same effect as though
such representations and warranties had been made on such Borrowing Date, except
as the context otherwise requires, except as otherwise permitted or contemplated
by this Agreement, and except such matters relating thereto as are indicated in
each Borrowing Request which shall be reasonably satisfactory to the
Administrative Agent and the Required Lenders, and (iv) there shall have
occurred no Material Adverse Change since December 31, 1995. Each borrow ing by
the Borrower shall constitute a certification by the Borrower as of the date of
such borrowing that each of the foregoing matters is true and correct in all
respects.
(b) Loan Closings. All documents required by the provisions of
this Agreement to be executed or delivered to the Administrative Agent on or
before the applicable Borrowing Date shall have been executed and shall have
been delivered at the office of the Administrative Agent set forth in section
11.2 on or before such Borrowing Date.
(c) Borrowing Request. The Administrative Agent shall have
received a Borrowing Request duly executed by an Authorized Signatory of the
Borrower.
(d) Approval of Counsel. All legal matters in connection with
the making of each Loan shall be reasonably satisfactory to Special Counsel.
(e) Other Documents. The Administrative Agent shall have
received such other documents as the Administrative Agent shall reasonably
request.
6. FINANCIAL COVENANTS
The Borrower covenants and agrees that on and after the Effective Date
and until all obligations of the Borrower under the Notes and the other Loan
Documents have been paid in full and all Commitments of the Lenders have been
terminated and no obligations of the Administrative Agent, the Collateral Agent,
the Co- Syndication Agents, the Managing Agents, the Agent, the Co-Agents or any
of the Lenders exist under any of the Loan Documents, the Borrower shall:
6.1 Senior Leverage Ratio; Total Leverage Ratio.
(a) Senior Leverage Ratio. Maintain at all times a Senior
Leverage Ratio not greater than the ratio set forth below with respect to the
applicable period set forth below:
Periods Ratio
Effective Date through
December 30, 1997 5.75:1.00
December 31, 1997 through
December 30, 1998 5.50:1.00
December 31, 1998 through
December 30, 1999 5.00:1.00
December 31, 1999 through
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December 30, 2000 4.00:1.00
December 31, 2000
and thereafter 3.25:1.00
(b) Total Leverage Ratio. Maintain at all times a Total
Leverage Ratio not greater than the applicable ratio set forth below with
respect to the applicable period set forth below:
Periods Ratio
Effective Date through
December 30, 1997 7.00:1.00
December 31, 1997 through
December 30, 1998 6.50:1.00
December 31, 1998 through
December 30, 1999 6.00:1.00
December 31, 1999 through
December 30, 2000 5.00:1.00
December 31, 2000
and thereafter 4.00:1.00
Provided, however, that if at any time the Borrower shall make a
distribution pursuant to section 8.4(b) when the Total Leverage Ratio
requirement under this section 6.1(b) immediately before or after giving effect
thereto is greater than or equal to 5.00:1.00, the Total Leverage Ratio which
the Borrower shall be required to maintain under this section 6.1(b) shall be
automatically reduced to 5.00:1.00.
6.2 Consolidated Annual Operating Cash Flow to Pro-Forma Debt Service.
Maintain as at the end of each fiscal quarter a ratio of
Consolidated Annual Operating Cash Flow to Pro-Forma Debt Service not less than
1.10:1.00.
6.3 Consolidated Annual Operating Cash Flow to Interest Expense.
Maintain as at the end of each fiscal quarter during the
applicable periods set forth below a ratio of Consolidated Annual Operating Cash
Flow to Interest Expense not less than the ratio set forth below opposite the
applicable period:
Periods Ratio
Effective Date through
September 30, 1999 2.00:1.00
December 31, 1999 and
thereafter 2.25:1.00
6.4 Consolidated Annual Operating Cash Flow to Fixed Charges.
Maintain as at the end of each fiscal quarter a ratio of
Consolidated Annual Operating Cash Flow to Fixed Charges not less than
1.05:1.00.
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7. AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that on and after the Effective Date
and until all obligations of the Borrower under the Notes and the other Loan
Documents have been paid in full and all Commitments of the Lenders have been
terminated and no obligations of the Administrative Agent, the Collateral Agent,
the Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents or any
of the Lenders exist under any of the Loan Documents, the Borrower shall:
7.1 Financial Statements.
Maintain, and cause each Subsidiary to maintain, a standard
system of accounting in ac cordance with GAAP, and furnish or cause to be
furnished to the Administrative Agent and each Lender:
(a) As soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower, a copy of the consolidated
and consolidating Balance Sheets of the Borrower and its Subsidiaries as at the
end of such fiscal year, together with the related consolidated Statements of
Cash Flows and Shareholders' Equity and consolidated and consolidating
Statements of Operations as of and through the end of such fiscal year, setting
forth in each case, in comparative form, the consolidated figures for the preced
ing fiscal year. The consolidated and consolidating Balance Sheets and
Statements of Operations and the consolidated Statements of Cash Flows and
Shareholders' Equity shall be certified without qualification by the
Accountants, which certification (i) shall state that the examination by such
Accountants in connection with such consolidated and consolidating financial
statements has been made in accordance with generally accepted auditing
standards and, accordingly, included such tests of the accounting records and
such other auditing procedures as were considered necessary in the
circumstances, (ii) shall include the opinion of such Accountants that such
consolidated and consolidating financial statements have been prepared in
accordance with GAAP in a manner consistent with prior fiscal periods, except as
otherwise specified in such opinion, and (iii) may, in the case of the
consolidating financial statements, be limited to the Borrower and its
Restricted Subsidiaries on a Consolidated basis. Notwithstanding the foregoing,
for purposes of this subsection (a), separate consolidating financial statements
with respect to the License Subsidiaries shall not be required.
(b) Simultaneously with the delivery of the certified
financial statements required by clause (a) above, copies of a certificate of
such Accountants stating that, in making the examination necessary for their
audit of such financial statements for such fiscal year, nothing came to their
attention of an accounting nature that caused them to believe that the Borrower
was not in compliance with the terms, covenants, provi sions, or conditions of
this Agreement, including, without limitation, sections 6.1, 6.2, 6.3, 6.4,
7.12, 8.1, 8.3, 8.4, 8.5 and 8.7, or, if so, specifying in such certificate all
such instances of noncompliance and the nature and status thereof.
(c) (i) As soon as available, but in any event not later than
45 days after the end of each of the first three quarterly accounting periods in
each fiscal year of the Borrower, a copy of the consolidated and consolidating
Balance Sheets of the Borrower and its Subsidiaries as at the end of each such
quarterly period, together with the related consolidated and consolidating
Statements of Operations, for such period and for the elapsed portion of the
fiscal year through such date, and the consolidated Statements of Cash Flows for
the elapsed portion of the fiscal year through such date, setting forth in each
case, in comparative form, the consolidated figures for the corresponding
periods of the preceding fiscal year, certified by the Chief Financial Officer
of the Borrower (or such other officer acceptable to the Administrative Agent),
as being com plete and correct in all material respects and as presenting fairly
the consolidated and consolidating financial
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condition and the results of operations of each of the Borrower and its
Subsidiaries, subject to normal, non-material year-end adjustments and (ii) as
soon as available, but in any event not later than 45 days after the end of each
of the first three fiscal quarters (90 days after the end of the fourth fiscal
quarter) of the Borrower, a certificate of the Chief Financial Officer of the
Borrower (or such other officer as shall be acceptable to the Administrative
Agent) in detail reasonably satisfactory to the Administrative Agent (x) stating
that there exists no violation of any of the terms or provisions of the Loan
Documents, or the occurrence of any condition or event which would constitute a
Default or Event of Default, and, if so, specifying in such certificate all such
violations, conditions and events, and the nature and status thereof, and (y)
containing computations showing compliance with the provisions of sections 6.1,
6.2, 6.3, 6.4, 7.12, 8.1, 8.3, 8.4, 8.5 and 8.7. Notwithstanding the foregoing,
for purposes of this subsection (c), separate consolidating financial statements
with respect to the License Subsidiaries shall not be required.
(d) Within 45 days after the end of each of the first three
fiscal quarters (90 days after the end of the fourth fiscal quarter) of the
Borrower, a Ratio Certificate setting forth each of the Senior Leverage Ratio
and the Total Leverage Ratio as at the end of such fiscal quarter, certified by
the Chief Financial Officer of the Borrower (or such other officer as shall be
acceptable to the Administrative Agent).
(e) Within 30 days after the end of each month of the
Borrower, a management report setting forth a summary of revenues and Operating
Cash Flow and Station Cash Flow, on a station by station basis, for such month
and cumulative year to date periods, setting forth in each case in comparative
form the figures for such month and cumulative year to date period as set forth
in the internal budget prepared by the Borrower for such periods, all in detail
reasonably satisfactory to the Administrative Agent.
7.2 Certificates; Other Information.
Furnish to the Administrative Agent and each Lender:
(a) Prompt written notice if: (i) any Indebtedness of the
Borrower or any Subsidiary is declared or shall become due and payable prior to
its stated maturity, or called and not paid when due, (ii) a default shall have
occurred under any note (other than the Notes) or the holder of any such note,
or other evidence of Indebtedness, certificate or security evidencing any such
Indebtedness or any obligee with respect to any other Indebtedness of the
Borrower or any Subsidiary has the right to declare any such Indebtedness due
and payable prior to its stated maturity as a result of such default, or (iii)
there shall occur and be con tinuing a Default or an Event of Default;
(b) Prompt written notice of: (i) any citation, summons,
subpoena, order to show cause or other order naming the Borrower or any
Subsidiary a party to any proceeding before any Governmental Authority which
might have a Material Adverse Effect or which call into question the validity or
enforceability of any of the Loan Documents and include with such notice a copy
of such citation, summons, subpoena, order to show cause or other order, (ii)
the commencement or threat of any action, suit, arbitration proceeding or claim
by, on behalf of or against the Borrower or any Subsidiary, at law or in equity,
before any Governmental Authority, which could reasonably be expected to have a
Material Adverse Effect, (iii) any lapse or other termination of any material
license, permit, franchise or other authorization issued to the Borrower or any
Restricted Subsidiary by any Governmental Authority, (iv) any refusal by any
Governmental Authority to renew or extend any such material license, permit,
franchise or other authorization, and (v) any dispute between the Borrower or
any Subsidiary and any Governmental Authority, which dispute might have a
material adverse effect on any Broadcasting Station or a Material Adverse
Effect;
(c) Promptly upon becoming available, copies of all (i)
regular, periodic or special reports, schedules and other material which the
Borrower or any Restricted Subsidiary may now or hereafter be required to file
with or deliver to any securities exchange or the Securities and Exchange
Commission, or any other Governmental Authority succeeding to the functions
thereof, (ii) material reports, schedules and other
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material which the Borrower or any Restricted Subsidiary may now or hereafter be
required to file with or deliver to the FCC and (iii) material news releases and
annual reports relating to the Borrower or any of its Restricted Subsidiaries;
(d) Prompt written notice in the event that (i) the Borrower
or any Subsidiary shall receive notice from the Internal Revenue Service or the
Department of Labor that the Borrower or such Subsidiary shall have failed to
meet the minimum funding requirements of Section 412 of the Code with respect to
a Plan, if applicable, and include therewith a copy of such notice, or (ii) the
Borrower or any Subsidiary gives or is required to give notice to the PBGC of
any Reportable Event with respect to a Plan, or knows that the plan
administrator of a Plan has given or is required to give notice of any such
Reportable Event;
(e) With respect to a Single Employer Plan of the Borrower or
any Subsidiary, copies of any request for a waiver of the funding standards or
any extension of the amortization periods required by Sections 303 and 304 of
ERISA or Section 412 of the Code promptly after any such request is submitted to
the Department of Labor or the Internal Revenue Service, as the case may be;
(f) Promptly after the filing thereof, a copy of the annual
report required to be filed pursuant to Section 103 of ERISA in connection with
each Single Employer Plan of the Borrower and each Subsidiary for each plan
year, including (i) a statement of the assets and liabilities of such Plan as of
the end of such plan year and statements of changes in fund balance and in
financial position, or a statement of changes in net assets available for plan
benefits, for such plan year, certified by the Accountants and (ii) an actuarial
statement of such Plan applicable to such plan year, certified by an enrolled
actuary of recognized standing reasonably acceptable to the Administrative Agent
and the Required Lenders;
(g) Promptly upon request therefor, such other information and
reports relating to the past, present or future financial condition, operations,
plans and projections of the Borrower or its Restricted Subsidiaries as the
Administrative Agent, any Co-Syndication Agent or any other Lender (through the
Administrative Agent) may at any time and from time to time reasonably request;
(h) Promptly after the same are received by the Borrower,
copies of all management letters and similar reports provided to the Borrower or
any Restricted Subsidiary by its independent certified public accountants; and
(i) Prompt written notice of the occurrence of a Material
Adverse Change or the occurrence of any event or facts or circumstances which
are reasonably likely to result in a Material Adverse Change.
7.3 Legal Existence.
Except as otherwise permitted by section 8.3, maintain, and
cause each Subsidiary to maintain, its corporate existence, and maintain its
good standing in the jurisdiction of its incorporation or organization and in
each other jurisdiction in which the failure so to do could reasonably be
expected to have a Material Adverse Effect.
7.4 Taxes.
Pay and discharge when due, and cause each Subsidiary so to
do, all Taxes, assessments and governmental charges, license fees and levies
upon or with respect to the Borrower or such Subsidiary and upon the income,
profits and Property of the Borrower and the Subsidiaries taken as a whole,
which if unpaid, could reasonably be expected to have a Material Adverse Effect
or become a Lien on the Property of the
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Borrower or any Restricted Subsidiary not permitted under section 8.2, unless
and to the extent only that such Taxes, assessments, charges, license fees and
levies shall be contested in good faith and by appropriate proceedings
diligently conducted by the Borrower or such Subsidiary and provided that the
Borrower shall give the Administrative Agent prompt notice of such contest and
that such reserve or other appropriate provision as shall be required by the
Accountants in accordance with GAAP shall have been made therefor.
7.5 Insurance.
(a) Liability Insurance. Maintain, and cause each Restricted
Subsidiary to maintain, insurance with financially sound insurance carriers on
such of its Property, against at least such risks, and in at least such amounts,
as are customarily insured against by similar businesses and which, in the case
of property insurance, shall be in amounts sufficient to prevent the Borrower or
any Restricted Subsidiary from becoming a co-insurer, including, without
limitation, public liability (bodily injury and property damage), ▇▇▇▇▇ ity,
bonding and workers' compensation with deductibles not exceeding $50,000 per
occurrence, in each case naming the Administrative Agent as an additional
insured under such policies, and file with the Administrative Agent within five
days after request therefor a detailed list of such insurance then in effect,
stating the names of the carriers thereof, the policy numbers, the insureds
thereunder, the amounts of insurance, dates of expiration thereof, and the
Property and risks covered thereby, together with a certificate of an Authorized
Signatory certifying that in the opinion of such officer such insurance is
adequate in nature and amount, complies with the obligations of the Borrower
under this section 7.5, and is in full force and effect.
(b) Business Interruption Insurance. Maintain such business
interruption insurance as is customarily maintained by companies engaged in
similar businesses with deductibles not exceeding $50,000 per occurrence.
Promptly upon request therefor, the Borrower shall deliver or cause to be
delivered to the Administrative Agent originals or duplicate originals of all
such policies of insurance. Such insurance shall name the Administrative Agent
(together with the Administrative Agent under and as defined in the Other Credit
Agreement), under a standard loss payable clause, as sole loss payees in respect
of each claim resulting in a payment under any such insurance policy exceeding
$100,000. Provided that no Default or Event of Default shall exist, the
Administrative Agent agrees, promptly upon its receipt thereof, to pay over to
the Borrower the proceeds of any such payment received by the Administrative
Agent in its capacity as Administrative Agent hereunder. If a Default or Event
of Default shall exist, the Borrower, at the request of the Administrative
Agent, shall prepay the Loans with such proceeds, in an amount equal to the
Prepayment Fraction multiplied by the total amount of such insurance payment.
7.6 Payment of Indebtedness and Performance of Obligations.
Pay and discharge, and cause each Subsidiary to pay and
discharge, when due all lawful Indebtedness, obligations and claims for labor,
materials and supplies or otherwise which, if unpaid, might (i) have a Material
Adverse Effect, or (ii) become a Lien upon Property of the Borrower or any
Restricted Subsidiary not permitted under section 8.2, unless and to the extent
only that the validity of such Indebtedness (other than Indebtedness under the
Loan Documents), obligation or claim shall be contested in good faith and by
appropriate proceedings diligently conducted by the Borrower or such Subsidiary,
and that any such contested Indebtedness, obligations or claims shall not
constitute, or create, a Lien on any Property of the Bor rower senior to the
Lien granted to the Collateral Agent by the Collateral Documents on such
Property, and further provided that the Borrower shall give the Administrative
Agent and the Lenders prompt notice of any such contest and that such reserve or
other appropriate provision as shall be required by the Accountants in
accordance with GAAP shall have been made therefor.
7.7 Condition of Property.
At all times, maintain, protect and keep in good repair,
working order and condition (ordinary wear and tear excepted), and cause each
Restricted Subsidiary so to do, all Property necessary to the operation of the
Borrower's or such Restricted Subsidiary's business.
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7.8 Observance of Legal Requirements; ERISA; Environmental Laws.
Observe and comply in all respects, and cause each Subsidiary
so to do, with all laws (including ERISA and Environmental Laws), ordinances,
orders, judgments, rules, regulations, certifications, franchises, permits,
licenses, directions and requirements of all Governmental Authorities, which now
or at any time hereafter may be applicable to the Borrower or such Subsidiary, a
violation of which could reasonably be expected to have a Material Adverse
Effect, except such thereof as shall be contested in good faith and by
appropriate proceedings diligently conducted by the Borrower or such Subsidiary,
provided that the Borrower shall give the Administrative Agent and the Lenders
prompt notice of such contest and that such reserve or other appropriate
provision as shall be required by the Accountants in accordance with GAAP shall
have been made therefor.
7.9 Inspection of Property; Books and Records; Discussions.
Keep proper books of record and account in which full, true
and correct entries in conformity with GAAP and all requirements of law shall be
made of all dealings and transactions in relation to its business and
activities; and permit representatives of the Administrative Agent and each
Lender, or potential assignees and/or participants of the Administrative Agent
or any Lender, to visit the offices of the Borrower and the Re stricted
Subsidiaries, to inspect any of its Property and examine and make copies or
abstracts from any of its books and records at any reasonable time and as often
as may reasonably be desired, and to discuss the business, operations,
prospects, licenses, Property and financial condition of the Borrower and the
Restricted Subsidiaries with the officers thereof and with the Accountants.
7.10 Licenses, Etc.
Maintain and cause each Restricted Subsidiary to maintain, in
full force and effect, the operating license issued by the FCC to it for each
Broadcasting Station. The Borrower shall also maintain and cause each Restricted
Subsidiary to maintain, in full force and effect, all other material licenses,
copyrights, patents, including all licenses, permits, applications, reports,
authorizations and other rights as are necessary for the conduct of its
business, except to the extent that such ownership or right to use shall
terminate as a matter of law or expire as a matter of contractual right through
no action or default by the Borrower or any Restricted Subsidiary.
7.11 Additional FCC Licenses.
Except for the FCC licenses relating to KUPL-FM, KKJZ-FM,
WQRS-FM, WFLN-FM and WAAF-FM and except to the extent that the Borrower has made
the determination (such determination to be reasonably satisfactory to the
Administrative Agent) that to do so would adversely affect the Borrower or any
Restricted Subsidiary because of potential material Taxes to be incurred, upon
the receipt by the Borrower or any Restricted Subsidiary of any additional FCC
license, the Borrower shall, or shall cause such Restricted Subsidiary to,
contribute such license to a License Subsidiary and cause the corresponding
License Subsidiary Management Agreement to be amended or otherwise modified to
reflect the contribution of such FCC license and grant to the Collateral Agent a
first priority perfected security interest therein.
7.12 Interest Rate Protection Arrangements.
For a period of three years from the Effective Date, maintain
one or more Interest Rate Protection Arrangements, if necessary, such that the
interest rate on at least 50% of outstanding Total Debt
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(which is not subject to a fixed interest rate) shall be hedged, which Interest
Rate Protection Arrangements shall have a minimum term of three years, shall
contain such terms and conditions as shall be reasonably satisfactory to the
Administrative Agent and, with respect to Interest Rate Protection Agreements
between the Borrower and any Lender (or any Affiliate of any Lender), shall be
secured on a pari passu basis with the Collateral.
7.13 Subsidiary Guaranty.
Promptly upon the creation or acquisition of any Restricted
Subsidiary, cause such Restricted Subsidiary to execute and deliver to the
Collateral Agent a supplement to the Subsidiary Guaranty in the form attached
thereto, together with such other documents and opinions of counsel as the
Administrative Agent shall reasonably required in connection therewith.
8. NEGATIVE COVENANTS
The Borrower covenants and agrees that on and after the Effective Date
and until all obligations of the Borrower under Notes and the other Loan
Documents have been paid in full and all Commitments of the Lenders have been
terminated and no obligations of the Administrative Agent, the Collateral Agent,
the Co- Syndication Agents, the Managing Agents, the Agent, the Co-Agents or any
of the Lenders exist under any of the Loan Documents, the Borrower shall not:
8.1 Borrowing.
Create, incur, assume or suffer to exist any liability for
Indebtedness, or permit any Restricted Subsidiary so to do, except (i)
Indebtedness under the Notes and the other Loan Documents, and Indebtedness
under the Notes and the other Loan Documents (in each case as defined in the
Other Credit Agreement); (ii) Indebtedness (including Contingent Obligations) of
the Borrower and the Restricted Subsidiaries existing on the date hereof as set
forth in Part A of Schedule 8.1; (iii) Indebtedness (including Contingent
Obligations) of EZ and its subsidiaries which, upon the consummation of the EZ
Acquisition, shall have been assumed by the Borrower and/or the Restricted
Subsidiaries as set forth in Part B of Schedule 8.1, (iv) unsecured Indebtedness
in an aggregate outstanding principal amount not in excess of $1,500,000 in
connection with the acquisition of Property by the Borrower, provided that
immediately before and after giving effect thereto all representations and
warranties contained in the Loan Documents shall be true and correct and no
Default or Event of Default shall exist; (v) unsecured Indebtedness of the
Borrower in an aggregate amount not in excess of $7,500,000 in connection with
the issuance of standby letters of credit for the account of the Borrower; (vi)
Indebtedness of the Borrower evidenced by (A) the ARS Subordinated Indenture
Notes, (B) the 1996 Exchange Subordinated Indenture Notes and the 1997 Exchange
Subordinated Indenture Notes, provided that, in the case of this clause (B),
immediately before and after giving effect to the incurrence thereof, no Default
or Event of Default shall exist, and (C) after the consummation of the EZ
Acquisition, the EZ Indenture Notes; (vii) Indebtedness of the Restricted
Subsidiaries evidenced by the ARS Subordinated Indenture Subsidiary Guaranty
and, after the consummation of the EZ Acquisition, the EZ Indenture Subsidiary
Guaranty; (viii) Permitted Subordinated Debt; (ix) refinancings of any
Indebtedness permitted under clause (ii), (iii), (iv) or (v) above with
Indebtedness permitted under clause (i) or (viii) above; and (x) refinancings of
any Indebtedness permitted under clause (vi), (vii) or (viii) above with other
Indebtedness permitted under clause (viii) above.
8.2 Liens.
Create, incur, assume or suffer to exist, or enter into any
agreement with any third Person agreeing not to create, incur, assume or suffer
to exist, any Lien upon any of its Property, whether now owned or hereafter
acquired, or permit any Restricted Subsidiary so to do, except (i) Liens for
Taxes, assessments or similar charges incurred in the ordinary course of
business which are not delinquent or which are being con tested in accordance
with section 7.4, provided that such Liens are not senior to the Liens granted
to the Collateral Agent and the Lenders by the Collateral Documents, (ii) Liens
in connection with workers' compensation, unemployment insurance or other social
security obligations (but not ERISA), (iii) deposits or pledges to secure bids,
tenders, contracts (other than contracts for the payment of money), leases,
statutory obligations, surety and appeal bonds and other obligations of like
nature arising in the ordinary course of busi ness, (iv) zoning ordinances,
easements and other similar restrictions affecting real property which do not
materially adversely affect the value of such real property or the financial
condition of the Borrower or such Restricted Subsidiary or materially impair its
use for the operation of the business of the Borrower or such Restricted
Subsidiary, (v) the Liens created under the Collateral Documents, (vi) statutory
Liens arising by operation of law such as mechanics' liens incurred in the
ordinary course of business which are not delinquent or which are being
contested in accordance with section 7.4, (vii) Liens arising out of judgments
or decrees which are being contested in accordance with section 7.4, provided
that such Liens are not senior to the Liens granted to the Collateral Agent and
the Lenders by the Collateral Documents and provided further that enforcement of
such Liens is stayed during such contest, (viii) Liens on Property of the
Borrower and the Restricted Subsidiaries existing on the date hereof as set
forth in Schedule 8.2, (ix) agreements with third Per sons not to create, incur,
assume or suffer to exist any Lien on any of its Property, provided that each
such agreement shall expressly permit the Liens (including any future Liens)
granted to the Collateral Agent pursuant to the Collateral Documents or as
otherwise contemplated by the other Loan Documents, as such Col lateral
Documents and other Loan Documents may be amended, supplemented, modified,
replaced, refinanced, increased or extended from time to time, and (x) Liens in
connection with the making of deposits in accordance with section 8.5(g).
8.3 Merger and Acquisition or Sale of Property.
Consolidate with, be acquired by, or merge into or with any
Person, or acquire all or substantially all of the Stock or Property of any
Person, or, except as otherwise permitted under section 8.7, sell, lease or
otherwise dispose of all or substantially all of its Property, or otherwise
alter or modify its structure, status or existence, or permit any Restricted
Subsidiary so to do, except: any wholly-owned Restricted Subsidiary (other than
a License Subsidiary) may merge with the Borrower (with the Borrower as
survivor) or with another wholly-owned Restricted Subsidiary (other than a
License Subsidiary); any License Subsidiary may merge with ARS License
Subsidiary (with ARS License Subsidiary as survivor); and, subject to the last
paragraph of this section 8.3:
(a) upon five Business Days' notice to the Administrative
Agent, the Borrower or any wholly-owned Restricted Subsidiary may acquire
Broadcasting Station(s) that are in the Top 75 Markets through an acquisition or
merger (with the Borrower or such wholly-owned Restricted Subsidiary (or a
Person that becomes a wholly-owned Restricted Subsidiary) as the survivor
thereof), provided that if the consideration for any such acquisition or merger
exceeds $50,000,000, there shall have been delivered to the Administrative Agent
and each Lender such details of such transaction as the Administrative Agent,
any Co-Syndication Agent or any other Lender (through the Administrative Agent)
shall reasonably request;
(b) upon five Business Days' notice to the Administrative
Agent, the Borrower or any wholly-owned Restricted Subsidiary may acquire
Broadcasting Station(s) that are not in the Top 75 Markets through an
acquisition or merger (with the Borrower or such wholly-owned Restricted
Subsidiary (or a Person that becomes a wholly-owned Restricted Subsidiary) as
the survivor thereof), provided that (i) after giving effect to each such
acquisition, the Consolidated Annual Operating Cash Flow allocable to all
Broadcast Stations that are not in the Top 75 Markets (calculated on a pro-forma
basis to include the Broadcasting Station being acquired) is less than 25% of
the Consolidated Annual Operating Cash Flow (calculated in the same manner), and
(ii) if the consideration for any such acquisition or merger exceeds
$50,000,000, there shall have been delivered to the Administrative Agent and
each Lender such details of such transaction as the
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Administrative Agent, any Co-Syndication Agent or any other Lender (through the
Administrative Agent) shall reasonably request; and
(c) the Borrower may consummate the EZ Acquisition pursuant to
the terms of section 8.21.
Immediately before and after giving effect to any proposed acquisition or merger
permitted under this section 8.3, all representations and warranties contained
in the Loan Documents shall be true and correct and no Default or Event of
Default shall exist and, prior to the consummation of such acquisition or
merger, the Borrower shall have delivered to the Administrative Agent a
certificate of an Authorized Signatory of the Borrower certifying as to the
foregoing. Immediately upon the consummation of any acquisition or merger
permitted under this section 8.3, (i) the Borrower shall have delivered to the
Administrative Agent such docu ments as the Administrative Agent shall
reasonably require in order to grant to the Collateral Agent a first priority
perfected security interest in the Stock and/or Property, as applicable, of such
Broadcasting Station under and pursuant to the Collateral Documents, subject to
no Liens other than Permitted Liens, (ii) if the Borrower shall have acquired a
Restricted Subsidiary in connection with such acquisition, such Restricted
Subsidiary shall have become a party to the Subsidiary Guaranty, (iii) subject
to section 7.11, the FCC license of the Broadcasting Station shall have been
transferred to a License Subsidiary, and a management agreement, substantially
in the form of Exhibit D, or a supplement or amendment to a License Subsidiary
Management Agreement, shall have been executed and delivered in connection
therewith and pledged to the Collateral Agent under and in accordance with the
applicable Collateral Document, (iv) the Borrower shall have received (A) with
respect to each pending acquisition listed on Schedule 8.3, a Preliminary Order,
and (B) with respect to each other transaction, a final order from the FCC, and
all other similar material orders from all other applicable Governmental
Authorities, with regard to the acquisition or merger, the transfer of the FCC
license of such acquired Broadcasting Station to a License Subsidiary, and the
execution of the management agreement, each of which shall be in all respects
reasonably satisfactory to the Administrative Agent, and the Administrative
Agent shall have received true, complete and correct copies, certified by an
Authorized Signatory of the Borrower, of all such orders and (v) the Borrower
shall have delivered to the Administrative Agent such opinions and other
documents as the Administrative Agent shall reasonably require in connection
therewith.
8.4 Dividends; Purchase of Stock.
Declare or pay any dividends payable in cash or otherwise or
apply any of its Property to the purchase, redemption or other retirement of, or
set apart any sum for the payment of any dividends on, or make any other
distribution by reduction of capital or otherwise in respect of, any of its
Stock (each a "Restricted Payment") or permit any Restricted Subsidiary so to
do, except that:
(a) any wholly-owned Restricted Subsidiary (other than a
License Subsidiary) may declare and pay dividends to the Borrower from time to
time;
(b) the Borrower may declare and pay cash dividends or
purchase its capital Stock commencing January 1, 1999, provided that (i) the
aggregate amount of dividends declared and paid and capital stock purchased
under this subsection (b) shall not exceed an amount equal to 50% of Excess Cash
Flow for the period commencing January 1, 1998 through the end of the fiscal
quarter immediately preceding the declaration and payment of any such dividends
or any such purchase, (ii) immediately before and after giving effect to such
declaration and payment (1) (x) either the Total Leverage Ratio is less than
4.50:1.00 or (y) the Total Leverage Ratio is less than 5.00:1.00 and the Senior
Leverage Ratio is less than 3.00:1.00, and (2) all representations and
warranties contained in the Loan Documents are true and correct and no Default
or Event of Default shall exist and (iii) the Loans shall have been prepaid, and
the RC/TL Commitments shall have been permanently reduced by an amount equal to
the Prepayment Fraction or the Commitment Reduction Fraction, as the case may
be, multiplied by the amount of such dividends or purchase;
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(c) the Borrower may declare and pay dividends payable solely
in Class A, B or C common stock of the Borrower;
(d) the Borrower may purchase its capital Stock in an amount
not to exceed $15,000,000 in any fiscal year (determined on a cumulative basis)
and $75,000,000 in the aggregate, provided that immediately before and after
giving effect to any such purchase (i) the Total Leverage Ratio is less than
6.50:1.00, and (ii) no Default or Event of Default shall exist; and
(e) the Borrower may declare and pay (i) cash dividends on the
preferred Stock issued pursuant to the 1996 Convertible Exchangeable Preferred
Stock Issuance and the 1997 Preferred Stock Issuance, provided that immediately
before and after giving effect to any such declaration and payment, no Default
or Event of Default shall exist, and (ii) non-cash dividends on the preferred
Stock issued pursuant to the 1997 Preferred Stock Issuance in the form of
additional shares of such preferred Stock.
8.5 Investments, Loans, Etc.
At any time, purchase or otherwise acquire, hold or invest in
the Stock of, or any other interest in, any Person, or make any loan or advance
(excluding deposits or pledges permitted under section 8.2(iii)) to, or enter
into any arrangement for the purpose of providing funds or credit to, or make
any other investment, whether by way of capital contribution or otherwise, in or
with any Person (all of which are sometimes referred to herein as
"Investments"), or permit any Restricted Subsidiary so to do, except:
(a) Investments in short-term domestic and eurodollar
certificates of deposit issued by any Lender, or any other commercial bank,
trust company or national banking association incorporated under the laws of the
United States or any State thereof and having undivided capital surplus and
retained earnings exceeding $500,000,000;
(b) Investments in short-term direct obligations of the United
States of America or agencies thereof which obligations are guaranteed by the
United States of America;
(c) Investments existing on the date hereof as set forth in
Schedule 8.5(c);
(d) Investments by the Borrower in an aggregate amount (at
cost) at any time outstanding not to exceed $75,000,000, provided that (i)
immediately before and after giving effect to the making of any such Investment,
no Default or Event of Default shall exist, (ii) if any such Investment consists
of Margin Stock, the representation and warranty contained in Section 4.12 shall
be true and correct immediately before and after giving effect to the making of
any such Investment, and (iii) the Borrower shall have delivered to the
Administrative Agent such documents as the Administrative Agent shall reasonably
require in order to grant to the Collateral Agent a first priority perfected
security interest in the Stock (excluding Margin Stock) and/or other Collateral
(as defined in the Collateral Documents), as applicable, received in
consideration of any such Investment under and pursuant to the Collateral
Documents, subject to no Liens other than Permitted Liens;
(e) Investments by the Borrower to the extent permitted under
section 8.4(d);
(f) Investments to the extent the same are acquisitions
permitted pursuant to section 8.3;
(g) Investments by the Borrower in the form of deposits or
options made in the ordinary course of business in connection with any proposed
acquisition or acquisitions of Property permitted pursuant to the terms of this
Agreement; and
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(h) Investments by the Borrower in the Tower Subsidiaries
(excluding Investments by the Borrower in the Tower Subsidiaries permitted
pursuant to Section 8.5(c)) in an aggregate amount not to exceed $50,000,000,
provided that immediately before and after giving effect to the making of any
such Investment, no Default or Event of Default shall exist.
8.6 Business Changes.
Materially change or permit any Restricted Subsidiary so to do
the nature of its business from that of owning and managing radio broadcasting
stations and related businesses, including the syndication of radio programming
and the ownership and management of communications antenna towers.
8.7 Sale of Property.
Sell, exchange, lease, transfer or otherwise dispose of any
Property to any Person, or permit any Restricted Subsidiary so to do, except
sales, exchanges, leases, transfers or other dispositions made in the ordinary
course of business (which shall not include the sale or other disposition of any
Property of a License Subsidiary or all or substantially all of the Stock or
assets of any Broadcasting Station or involve an FCC license of the Borrower or
any of its Restricted Subsidiaries), except that, subject to the last sentence
of this section 8.7:
(a) the Borrower may sell or exchange any Broadcasting Station
set forth on Schedule 8.7;
(b) the Borrower may sell or exchange any Broadcasting
Station, provided that (i) the aggregate amount of the Station Annual Cash Flow
for all Broadcasting Stations which have been sold or exchanged pursuant to the
provisions of this section 8.7(b) during the Station Sale Measuring Period
(including the Broadcasting Station then being contemplated to be sold or
exchanged but excluding in any event those permitted pursuant to section 8.7(a))
shall not exceed 25% of Consolidated Annual Broadcast Cash Flow (calculated
before subtracting Station Annual Cash Flow with respect to each Broadcasting
Station sold or exchanged pursuant to the provisions of this section 8.7(b)
during such Station Sale Measuring Period), and (ii) the aggregate amount of the
Station Annual Cash Flow for all Broadcasting Stations which have been sold or
exchanged pursuant to the provisions of this section 8.7(b) during the period
commencing on the Effective Date and ending through and including the date of
determination (including the Broadcasting Station then being contemplated to be
sold or exchanged but excluding in any event those permitted pursuant to section
8.7(a)) (calculated as of the time each such Broadcasting Station was sold or
exchanged pursuant to the provisions of this section 8.7(b)) (collectively, the
"Aggregate Station Annual Cash Flow") shall not exceed 50% of the sum of (A) the
Aggregate Station Annual Cash Flow, and (B) Consolidated Annual Broadcast Cash
Flow (calculated after subtracting Station Annual Cash Flow with respect to each
Broadcasting Station sold or exchanged pursuant to the provisions of this
section 8.7(b) (including the Broadcasting Station then being contemplated to be
sold or exchanged) during the four fiscal quarter period for which Consolidated
Annual Broadcast Cash Flow is being measured);
(c) the Borrower may sell and leaseback (i) tower assets to
any Tower Subsidiary, and (ii) real property and buildings used in connection
with radio towers or studios to any of its Subsidiaries or any other Person;
(d) the Borrower or any Restricted Subsidiary may sell the
real property and buildings set forth in Schedule 8.7; and
(e) In the event that the Borrower shall elect not to
consummate any acquisition pursuant to a loan/purchase arrangement substantially
similar to the arrangements in connection with the PBB
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Note Purchase Agreements, the Borrower may assign the applicable purchase
agreement(s) to a qualified third party.
Provided, however, in connection with any sale or exchange permitted under
section 8.7(b), (c) or (d), (i) im mediately before and after giving effect to
the proposed sale or exchange (including any related change in Indebtedness),
all representations and warranties contained in the Loan Documents shall be true
and correct and no Default or Event of Default shall exist, and the Borrower
shall have delivered to the Administrative Agent a certificate of an Authorized
Signatory of the Borrower certifying as to the same, and (ii) the Borrower shall
prepay the Loans in accordance with section 2.5(g).
8.8 Subsidiaries.
Create or acquire any other Subsidiary, or permit any
Subsidiary (other than a Tower Subsidiary) so to do, except in connection with
an Acquisition permitted in section 8.3.
8.9 Compliance with ERISA.
Adopt any Plan other than those listed on Schedule 4.14 or
permit any Subsidiary so to do, or engage in any "prohibited transaction", as
such term is defined in Section 4975 of the Code or Section 406 of ERISA, with
respect to any Plan, or incur any "accumulated funding deficiency", as such term
is defined in Section 412 of the Code or Section 302 of ERISA, or terminate, or
permit any member of a Commonly Controlled Entity to terminate, any Plan which
would result in any liability of the Borrower or any member of a Commonly
Controlled Entity to the PBGC, or permit the occurrence of any Reportable Event
or any other event or condition which presents a risk of such a termination by
the PBGC of any Plan, or withdraw or effect a partial withdrawal from a
Multiemployer Plan, or permit any member of a Commonly Controlled Entity which
is an employer under such a Multiemployer Plan so to do, if any such withdrawal
would result in such withdrawing employer incurring any withdrawal liability in
excess of $250,000.
8.10 Certificate of Incorporation and By-laws.
Amend or otherwise modify its certificate of incorporation,
by-laws or other organizational documents, or permit any Restricted Subsidiary
so to do, in any way which would adversely affect the interests of the Lenders
or the obligations of any Loan Party under any of the Loan Documents.
8.11 Prepayments of Indebtedness.
Prepay or obligate itself to prepay, in whole or in part, any
Indebtedness (other than the Loans and the Other Credit Agreement Loans) prior
to the due date thereof, or permit any Restricted Subsidiary so to do, other
than (i) the prepayment by any Restricted Subsidiary of Indebtedness owing by
such Restricted Subsidiary to the Borrower, (ii) the prepayment of Indebtedness
permitted under section 8.1(ii) or (iii) with the proceeds of Indebtedness
permitted under section 8.1 (i) or (vi) or the proceeds of Stock issued by the
Borrower pursuant to section 8.18, (iii) the prepayment in whole or in part of
the EZ Indenture Notes with the proceeds of the SD/TL Loans and (iv) the
prepayment of the ARS Subordinated Indenture Notes, the 1996 Exchange
Subordinated Indenture Notes, the 1997 Exchange Subordinated Indenture Notes,
the EZ Indenture Notes and the Permitted Subordinated Indenture Notes to the
extent permitted under section 8.19.
8.12 Fiscal Year.
Change its fiscal year from a fiscal year commencing January
1st and ending December 31st, or permit any of its Restricted Subsidiaries so to
do.
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8.13 Amendments, Etc. of Certain Agreements.
Enter into or agree to any amendment, modification or waiver
of any term or condition of the PBB Documents, the Tax Sharing Agreement or any
License Subsidiary Management Agreement, which amendment, modification or
waiver, in the opinion of the Administrative Agent, would materially and
adversely affect the interest of the Lenders under any of the Loan Documents. In
the event of any amendment, modification or waiver to any of such documents, the
Borrower shall promptly deliver to the Administrative Agent a copy of the same.
8.14 Transactions with Affiliates.
Become, or permit any Restricted Subsidiary to become, a party
to any transaction with any Affiliate of the Borrower or any Restricted
Subsidiary on a basis less favorable to the Borrower or such Restricted
Subsidiary in any material respect than if such transaction were not with an
Affiliate of the Borrower or such Restricted Subsidiary, provided that nothing
contained in this section 8.14 shall limit the Borrower's making Investments in
any Tower Subsidiary pursuant to section 8.5(h) provided that immediately before
and after giving effect thereto such Tower Subsidiary is a wholly owned
Subsidiary of the Borrower.
8.15 License Subsidiaries.
Permit any License Subsidiary to engage in any business other
than (i) owning, holding and maintaining in full force and effect the broadcast
licenses and other assets transferred to such License Subsidiary, (ii)
performing the obligations of such License Subsidiary under the applicable
License Subsidiary Management Agreement and (iii) executing, delivering and
performing its obligations under the Subsidiary Guaranty, the ARS Subordinated
Indenture Subsidiary Guaranty, the EZ Indenture Subsidiary Guaranty and the
Permitted Subordinated Indenture Subsidiary Guaranty.
8.16 Sale and Leaseback.
Enter into any arrangement with any Person, or permit any
Restricted Subsidiary so to do, providing for the leasing by the Borrower or
such Restricted Subsidiary of Property which has been or is to be sold or
transferred by the Borrower or such Restricted Subsidiary to such Person or to
any other Person to whom funds have been or are to be advanced by such Person on
the security of such Property or rental obligations of the Borrower or such
Restricted Subsidiary, except as permitted pursuant to section 8.7(c).
8.17 Prohibition on Management and Similar Fees.
Make any payment of, or enter into any agreement for the
payment of, any management fees or similar fees with any Affiliate of the
Borrower.
8.18 Stock Issuance.
Issue any additional shares of Stock, or permit any of its
Restricted Subsidiaries so to do, except (i) the Borrower may issue shares of
its common Stock or Non Redeemable Preferred Stock, provided that the Borrower
shall prepay the Loans in an amount equal to the Prepayment Fraction multiplied
by the net proceeds received by the Borrower in connection with such issuance of
Stock by the Borrower immediately upon its receipt thereof to the extent
required by section 2.5(h), and (ii) any Restricted Subsidiary (other than a
License Subsidiary) may issue shares of its Stock to the Borrower or any
wholly-owned Restricted Subsidiary.
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8.19 Indentures, Notes, Subsidiary Guaranties.
(a) Enter into or agree to any amendment, modification or
waiver of any term or condition of the ARS Subordinated Indenture, the ARS
Subordinated Indenture Notes, the ARS Subordinated Indenture Subsidiary
Guaranty, the 1996 Exchange Subordinated Indenture, the 1997 Exchange
Subordinated Indenture, the 1996 Exchange Subordinated Indenture Notes, the 1997
Exchange Subordinated Indenture Notes, the Permitted Subordinated Indenture, the
Permitted Subordinated Indenture Notes or the Permitted Subordinated Indenture
Subsidiary Guaranty or purchase, redeem or make any payment with respect to
Indebtedness under the ARS Subordinated Indenture Notes, the ARS Subordinated
Indenture Subsidiary Guaranty, the 1996 Exchange Subordinated Indenture Notes,
the 1997 Exchange Subordinated Indenture Notes, the Permitted Subordinated
Indenture Notes or the Permitted Subordinated Indenture Subsidiary Guaranty or
permit any of its Restricted Subsidiaries so to do, except for required payments
to the extent expressly permitted pursuant to the subordination terms set forth
therein, and except as permitted under section 8.1(x).
(b) Except for the supplemental indenture contemplated by the
EZ Consent Solicitation, enter into or agree to any amendment, modification or
waiver of any term or condition of the EZ Indenture, the EZ Indenture Notes or
the EZ Indenture Subsidiary Guaranty or purchase, redeem or make any payment
with respect to Indebtedness under the EZ Indenture Notes or the EZ Indenture or
permit any of its Restricted Subsidiaries so to do, except for payments to the
extent required pursuant to the terms set forth therein, and except as permitted
under section 8.1(x).
8.20 Federal Reserve Regulations.
Own, or permit any of its Restricted Subsidiaries to own,
Margin Stock in excess of 25% (or such greater or lesser percentage as is
provided in the exclusions from the definition of "Indirectly Secured" contained
in Regulation G and Regulation U in effect at the time of the making of such
Loan) of the value of the assets of (i) the Borrower, or (ii) the Borrower and
the Restricted Subsidiaries on a Consolidated basis.
8.21 EZ Acquisition.
Consummate the EZ Acquisition, unless:
(a) The EZ Indenture shall have been amended substantially in
accordance with the EZ Consent Solicitation, and the Administrative Agent shall
have received a true and complete copy of such amendment as executed and
delivered by the parties thereto.
(b) There shall exist no injunction or other material
litigation affecting the EZ Acquisition or any transaction contemplated thereby,
and the Administrative Agent shall have received a certificate to such effect
from the Borrower.
(c) All conditions precedent to the consummation of the EZ
Acquisition shall have been satisfied in accordance with the terms of the EZ
Transaction Documents (with no waiver of any material condition thereof without
the prior written consent of the Administrative Agent and the Co-Syndication
Agents, which consent shall not be unreasonably withheld) and the EZ Acquisition
shall have been consummated in such manner, and the Administrative Agent shall
have received a certificate to such effect from the Borrower.
(d) The Borrower shall have repaid in full and cancelled the
Existing EZ Indebtedness and all liens securing the same shall have been
terminated, and the Administrative Agent shall have received satisfactory
evidence of the foregoing.
(e) The Administrative Agent and the Lenders shall have
received pro-forma financial
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statements of the Borrower and its Restricted Subsidiaries (including EZ and its
subsidiaries), in each case after giving effect to the consummation of the EZ
Acquisition.
(f) No material adverse change shall have occurred in the
financial condition, operations, business or prospects of (i) the Borrower and
its Restricted Subsidiaries taken as a whole, (ii) EZ and its subsidiaries taken
as a whole and (iii) the Borrower and its Restricted Subsidiaries (including EZ
and its subsidiaries) on a pro-forma basis taken as a whole, in each case since
December 31, 1995 and in the case of clause (iii) above from that shown on the
pro-forma financial statements and projections previously provided to and
approved by the Lenders.
(g) The representations and warranties contained in the Loan
Documents shall be true and correct immediately before and after giving effect
to the consummation of the EZ Acquisition except as otherwise expressly
permitted or contemplated by this Agreement and no Default or Event of Default
shall exist immediately before or after giving effect thereto, and the
Administrative Agent shall have received a certificate to such effect from the
Borrower.
(h) All notices, approvals and waiting periods (except as
contemplated by section 8.21(n)) from all Governmental Authorities shall have
been given, received or expired, as the case may be, in connection with the
consummation of the EZ Acquisition.
(i) The Collateral Agent shall have received such UCC searches
and UCC-1 Financing Statements as it may require, together with (i) stock
certificates representing all issued and outstanding Stock of each subsidiary of
EZ that is owned by EZ or any of its subsidiaries, with undated stock ▇▇▇▇▇▇ ▇▇
companying such certificates executed in blank and (ii) all intercompany notes
made by EZ or any of its subsidiaries endorsed to the order of the Collateral
Agent.
(j) The Administrative Agent shall have received such
certificates, legal opinions (including opinions of FCC counsel) and other
documents as it shall reasonably require, all of which shall be satisfactory to
the Administrative Agent.
(k) The Administrative Agent shall have received a certificate
from the Borrower in all respects satisfactory to the Administrative Agent that,
immediately before and after giving effect to the EZ Acquisition, the Borrower
is Solvent.
(l) The Collateral Agent shall have received from the Borrower
such documents as the Collateral Agent shall reasonably require in order to
grant to the Collateral Agent a first priority perfected security interest in
the Stock and other Collateral (as defined in the Collateral Documents) acquired
in connection with the EZ Acquisition under and pursuant to the Collateral
Documents, subject to no Liens other than Permitted Liens.
(m) Management agreements, substantially in the form of
Exhibit D, between PBI and each EZ License Subsidiary (collectively, as each may
be amended, supplemented or otherwise modified from time to time pursuant to
section 8.13, the "EZ License Subsidiary Management Agreements") shall have been
executed and delivered in connection with the EZ Acquisition and pledged to the
Collateral Agent under and in accordance with the applicable Collateral
Document.
(n) The Borrower shall have received Preliminary Orders from
the FCC, and all other similar material orders from all other applicable
Governmental Authorities, with regard to the EZ Acquisition and the transfer of
control of the FCC licenses of the EZ License Subsidiaries, each of which shall
be in all respects reasonably satisfactory to the Administrative Agent, and the
Administrative Agent shall have received true, complete and correct copies,
certified by an Authorized Signatory of the Borrower, of all such orders.
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9. DEFAULT
9.1 Events of Default.
The following shall each constitute an "Event of Default"
hereunder:
(a) The failure of the Borrower to pay any installment of
principal on any Note on the date when due and payable; or
(b) The failure of the Borrower to pay any installment of
interest or any other fees or expenses payable hereunder or under or in
connection with any other Loan Documents within three Business Days of the date
when due and payable; or
(c) The use by the Borrower of the proceeds of any Loan in a
manner inconsistent with or in violation of section 2.7; or
(d) The failure of the Borrower to observe or perform any
covenant or agreement contained in section 6, section 7.3, 7.5, 7.10, 7.11, 7.12
or 7.13, or section 8; or
(e) The failure of the Borrower to observe or perform any
other term, covenant, or agreement contained in this Agreement and such failure
shall have continued unremedied for a period of 30 days after the Borrower shall
have obtained knowledge thereof; or
(f) Any representation or warranty of any Loan Party (or of
any officer on its behalf) made in any Loan Document or in any certificate,
report, opinion (other than an opinion of counsel) or other document delivered
or to be delivered pursuant to any Loan Document, shall prove to have been
incorrect or misleading (whether because of misstatement or omission) in any
material respect when made; or
(g) Any obligation of the Borrower (other than its obligations
under the Notes) or any Restricted Subsidiary, whether as principal, guarantor,
surety or other obligor, for the payment of any Indebtedness or operating
lease(s) (i) shall become or shall be declared to be due and payable prior to
the expressed maturity thereof, or (ii) shall not be paid when due or within any
grace period for the payment thereof, or (iii) the holder of any such
obligation(s) in excess of $2,500,000 in the aggregate shall have the right to
declare such obligation(s) due and payable prior to the expressed maturity
thereof; or
(h) The Borrower or any Restricted Subsidiary shall (i)
suspend or discontinue its business, or (ii) make an assignment for the benefit
of creditors, or (iii) generally not be paying its debts as such debts become
due, or (iv) admit in writing its inability to pay its debts as they become due,
or (v) file a voluntary petition in bankruptcy, or (vi) become insolvent
(however such insolvency shall be evidenced), or (vii) file any petition or
answer seeking for itself any reorganization, arrangement, composition,
readjustment of debt, liquidation or dissolution or similar relief under any
present or future statute, law or regulation of any jurisdiction, or (viii)
petition or apply to any tribunal for any receiver, custodian or any trustee for
any substantial part of its Property, or (ix) be the subject of any such
proceeding filed against it which remains undismissed for a period of 60 days,
or (x) file any answer admitting or not contesting the material allegations of
any such petition filed against it or of any order, judgment or decree approving
such petition in any such proceeding, or (xi) seek, approve, consent to, or
acquiesce in any such proceeding, or in the appointment of any trustee,
receiver, custodian, liquidator, or fiscal agent for it, or any substantial part
of its Property, or an order is entered appointing any such trustee, receiver,
custodian, liquidator or fiscal agent and such order remains in effect for 60
days, or (xii) take any formal action for the purpose of effecting any of the
foregoing or looking to the liquidation or dissolution of the Borrower or such
Restricted Subsidiary; or
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(i) An order for relief is entered under the United States
bankruptcy laws or any other decree or order is entered by a court having
jurisdiction (i) adjudging the Borrower or any Restricted Subsidiary a bankrupt
or insolvent, or (ii) approving as properly filed a petition seeking
reorganization, liquidation, arrangement, adjustment or composition of or in
respect of the Borrower or any Restricted Subsid iary under the United States
bankruptcy laws or any other applicable Federal or state law, or (iii)
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
(or other similar official) of the Borrower or any Restricted Subsidiary or of
any substantial part of the Property thereof, or (iv) ordering the winding up or
liquidation of the affairs of the Borrower or any Restricted Subsidiary, and any
such decree or order con tinues unstayed and in effect for a period of 60 days;
or
(j) Any judgments or decrees against the Borrower or its
Restricted Subsidiaries aggregating in excess of $2,500,000 for all such parties
shall remain unpaid, unstayed on appeal, undischarged, unbonded or undismissed
for a period of 30 days; or
(k) The occurrence of an Event of Default under and as defined
in any Collateral Document or the occurrence of an Event of Default under and as
defined in the Other Credit Agreement; or
(l) Any of the Loan Documents shall cease, for any reason, to
be in full force and effect, or any Loan Party shall so assert in writing or
shall disavow its obligations thereunder; or
(m) A Change of Control shall occur.
Upon the occurrence of an Event of Default or at any time thereafter
during the continuance thereof, (a) if such event is an Event of Default
specified in clauses (h) or (i) above, the Commitments shall immediately and
automatically terminate and the Loans, all accrued and unpaid interest thereon
and all other amounts owing under the Loan Documents shall immediately become
due and payable, and the Administrative Agent may, and upon the direction of the
Required Lenders shall, exercise any and all remedies and other rights provided
pursuant to this Agreement and the Notes, and (b) if such event is any other
Event of Default, any or all of the following actions may be taken: (i) with the
consent of the Required Lenders, the Administrative Agent may, and upon the
direction of the Required Lenders shall, by notice to the Borrower, declare the
Commitments to be terminated, forthwith, whereupon the Commitments shall
immediately terminate, and (ii) with the consent of the Required Lenders, the
Administrative Agent may, and upon the direction of the Required Lenders shall,
by notice of default to the Borrower, declare the Loans, all accrued and unpaid
interest thereon and all other amounts owing under the Loan Documents to be due
and payable forthwith, whereupon the same shall immediately become due and
payable, and the Administrative Agent may, and upon the direction of the
Required Lenders shall, exercise any and all remedies and other rights provided
pursuant to this Agreement and the Notes. Except as otherwise provided in this
section 9.1, presentment, de mand, protest and all other notices of any kind are
hereby expressly waived to the extent permitted by applicable law. The Borrower
hereby further expressly waives and covenants not to assert any appraisement,
valuation, stay, extension, redemption or similar laws, to the extent permitted
by applicable law, now or at any time hereafter in force, which might delay,
prevent or otherwise impede the performance or enforcement of any of the Loan
Documents.
In the event that the Commitments shall have been terminated or all of
the Notes shall have been declared due and payable pursuant to the provisions of
this section 9.1, the Lenders agree, among themselves, that any funds received
in respect of this Agreement and the Notes from or on behalf of the Borrower by
any of the Lenders (except funds received by any Lender as a result of a
purchase from such Lender pursuant to the provisions of section 11.9) shall be
remitted to the Administrative Agent, and shall be applied by the Administrative
Agent in payment of the Loans and the obligations of the Borrower under the Loan
Documents in the following manner and order: (i) first, to reimburse the
Administrative Agent, the Collateral Agent and the Lenders for any expenses due
from the Borrower pursuant to the provisions of section 11.5; (ii) second,
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to the payment of the Commitment Fees, pro rata according to the Commitment
Percentage of each Lender; (iii) third, to the payment of any other fees,
expenses or amounts (other than the principal of and interest on the Notes and
any obligations to any Lender arising out of any Interest Rate Protection
Arrangement entered into under, and required by, section 7.12) payable by the
Borrower to the Administrative Agent, the Collateral Agent or any of the Lenders
under the Loan Documents; (iv) fourth, to the payment, pro rata according to the
outstanding Loans of each Lender, of interest due on the Notes; (v) fifth, on a
pro rata basis, to the payment of (1) principal outstanding on the Notes, pro
rata according to each Lender's outstanding Loans and (2) the obligations of the
Borrower to the Lenders (and any Affiliate of any Lender) arising out of any
Interest Rate Protection Arrangements entered into under, and required by,
section 7.12; and (vi) sixth, any remaining funds shall be paid to whomsoever
shall be entitled thereto or as a court of competent jurisdiction shall direct.
10. THE ADMINISTRATIVE AGENT; THE COLLATERAL AGENT; THE CO-SYNDICATION
AGENTS; THE MANAGING AGENTS; THE AGENT; THE CO-AGENTS; THE ARRANGERS
10.1 Appointment.
Each Lender hereby irrevocably designates and appoints BNY as
the Administrative Agent of such Lender under this Agreement and the Notes and
BNY as the Collateral Agent of each Lender under the Collateral Documents. Each
such Lender hereby irrevocably authorizes BNY as the Administrative Agent or the
Collateral Agent, as the case may be, for such Lender to take such action on its
behalf under the provisions of the Loan Documents and to exercise such powers
and perform such duties as are expressly delegated to the Administrative Agent
or the Collateral Agent, as the case may be, by the terms of the Loan Documents,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement or any
of the other Loan Documents, neither the Administrative Agent nor the Collateral
Agent shall have any duties or responsibilities, except those expressly set
forth herein or therein, or any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into the Loan Documents or otherwise exist against the
Administrative Agent or the Collateral Agent.
10.2 Delegation of Duties.
The Administrative Agent and the Collateral Agent each may
execute any of its duties under the Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to rely upon the advice of counsel
concerning all matters pertaining to such duties.
10.3 Exculpatory Provisions.
Neither the Administrative Agent, the Collateral Agent nor any
of its officers, directors, em ployees, agents, attorneys-in-fact or affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with the Loan Documents (except for its
own gross neg ligence or willful misconduct), or (ii) responsible in any manner
to any of the Lenders for any recitals, state ments, representations or
warranties made by the Borrower or any officer thereof contained in the Loan
Docu ments or in any certificate, report, statement or other document referred
to or provided for in, or received by the Administrative Agent or the Collateral
Agent under or in connection with, the Loan Documents or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of any of
the Loan Documents or for any failure of the Borrower or any other Person to
perform its obligations hereunder or thereunder. Neither the Administrative
Agent nor the Collateral Agent shall be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, the Loan Documents, or to inspect the
properties, books or records of the Borrower or any Restricted Subsidiary.
Neither the Administrative Agent nor the Collateral Agent shall be under any
liability or responsibility
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whatsoever to the Borrower or any other Person as a consequence of any failure
or delay in performance, or any breach, by any Lender of any of its obligations
under any of the Loan Documents.
10.4 Reliance by Administrative Agent and Collateral Agent.
The Administrative Agent and the Collateral Agent each shall
be entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, opinion, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by it. Subject to
section 11.7, the Administrative Agent and the Collateral Agent each may treat
each Lender as the holder of all of the interests of such Lender in its Loans
and in its Notes. Neither the Administrative Agent nor the Collateral Agent
shall be under any duty to examine or pass upon the validity, effectiveness or
genuineness of the Loan Documents or any instrument, document or communication
furnished pursuant thereto or in connection therewith, and the Administrative
Agent and the Collateral Agent each shall be entitled to assume that the same
are valid, ef fective and genuine, have been signed or sent by the proper
parties and are what they purport to be. The Administrative Agent and the
Collateral Agent each shall be fully justified in failing or refusing to take
any action under the Loan Documents unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate. The Administrative
Agent and the Collateral Agent each shall in all cases be fully protected in
acting, or in refraining from acting, under the Loan Documents in accordance
with a request of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Notes.
10.5 Notice of Default.
Neither the Administrative Agent nor the Collateral Agent
shall be deemed to have knowledge or notice of the occurrence of any Default or
Event of Default hereunder unless it has received written notice thereof from a
Lender or the Borrower. In the event that the Administrative Agent or the
Collateral Agent receives such a notice, it shall promptly give 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 to be in the best interests
of the Lenders. The Collateral Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Combined
Required Lenders; provided, however, that unless and until the Collateral Agent
shall have received such directions, the Collateral 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 to be in the best interests
of the Lenders and the Lenders (as defined in the Other Credit Agreement).
10.6 Non-Reliance.
Each Lender expressly acknowledges that neither the
Administrative Agent, the Collateral Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates has made any representations
or warranties to it and that no act by the Administrative Agent or the
Collateral Agent hereinafter, including any review of the affairs of the
Borrower or the Subsidiaries, shall be deemed to constitute any representation
or warranty by the Administrative Agent or the Collateral Agent to any Lender.
Each Lender represents to the Administrative Agent and the Collateral Agent that
it has, independently and without reliance upon the Administrative Agent, the
Collateral Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own evaluation of and
investigation into the business, operations, Property, financial and other
condition and creditworthiness of the Borrower and its Subsidiaries and made its
own decision to enter into this Agreement. Each Lender also represents that it
will,
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independently and without reliance upon the Administrative Agent, the Collateral
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,
evaluations and decisions in taking or not taking action under this Agreement or
any of the Loan Documents, 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 its Subsidiaries. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent or the Collateral Agent hereunder, neither
the Administrative Agent nor the Collateral Agent shall have any duty or
responsibility to provide any Lender with any credit or other information con
cerning the business, operations, Property, financial and other condition or
creditworthiness of the Borrower or its Subsidiaries which may come into the
possession of the Administrative Agent, the Collateral Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates.
10.7 Indemnification.
(a) Each Lender agrees to indemnify the Administrative Agent
in its capacity as such (to the extent not promptly reimbursed by or on behalf
of the Borrower and without limiting the obligation of the Borrower or any other
Loan Party to do so), ratably according to its Credit Exposure at such time,
from and against any and all liabilities, obligations, claims, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever including, without limitation, any amounts paid to the Lenders
(through the Administrative Agent) by the Borrower pursuant to the terms hereof,
that are subse quently rescinded or avoided, or must otherwise be restored or
returned) which may at any time (including, without limitation, at any time
following the payment of the Notes) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement, the other Loan Documents or any other documents contemplated by or
referred to herein or the transactions contemplated hereby or any action taken
or omitted to be taken by the Administrative 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 directly and primarily from the gross negligence or willful
misconduct of the Administrative Agent. The agreements in this section 10.7(a)
shall survive the payment of the Notes and all other amounts payable under the
Loan Documents.
(b) Each Lender agrees to indemnify the Collateral Agent in
its capacity as such (to the extent not promptly reimbursed by or on behalf of
the Borrower and without limiting the obligation of the Borrower or any other
Loan Party to do so), ratably according to its Combined Credit Exposure at such
time, from and against any and all liabilities, obligations, claims, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever including, without limitation, any amounts paid to the
Lenders (through the Administrative Agent) by the Borrower pursuant to the terms
hereof, that are subsequently rescinded or avoided, or must otherwise be
restored or returned) which may at any time (in cluding, without limitation, at
any time following the payment of the Notes) be imposed on, incurred by or
asserted against the Collateral Agent in any way relating to or arising out of
this Agreement, the other Loan Documents or any other documents contemplated by
or referred to herein or the transactions contemplated hereby or any action
taken or omitted to be taken by the Collateral 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 directly and primarily from the gross negligence or willful
misconduct of the Collateral Agent. The agreements in this section 10.7(b) shall
survive the payment of the Notes and all other amounts payable under the Loan
Documents.
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10.8 Administrative Agent and Collateral Agent in its Individual
Capacity.
BNY and its Affiliates, may make loans to, accept deposits
from, issue letters of credit for the account of and generally engage in any
kind of business with, the Borrower and its Subsidiaries as though BNY were not
the Administrative Agent or the Collateral Agent. With respect to the
Commitments made by BNY and each Note issued to BNY, the Administrative Agent
and the Collateral Agent shall have the same rights and powers under this
Agreement and the other Loan Documents as any Lender and may exercise the same
as though it was not the Administrative Agent or the Collateral Agent, as the
case may be, and the terms "Lender" and "Lenders" shall in each case include
BNY.
10.9 Successor.
(a) If at any time the Administrative Agent deems it
advisable, in its sole discretion, it may submit to each of the Lenders a
written notification of its resignation as Administrative Agent under this
Agreement and the Notes, such resignation to be effective on the later to occur
of (i) the thirtieth day after the date of such notice and (ii) the date upon
which any successor Administrative Agent, in accordance with the provisions of
this section 10.9, shall have accepted in writing its appointment as such
successor Administrative Agent. Upon any such resignation of the Administrative
Agent, the Required Lenders shall have the right to appoint from among the
Lenders a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Required Lenders and accepted such
appointment within 30 days after the retiring Administrative Agent's giving of
notice of resignation, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, which successor
Administrative Agent shall be a commercial bank organized under the laws of the
United States of America or of any State thereof and having a combined capital
and surplus of at least $100,000,000. Upon the acceptance of any appointment as
Administrative Agent by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Ad ministrative Agent, and
the retiring Administrative Agent's rights, powers, privileges and duties as
Administrative Agent under this Agreement and the Notes shall be terminated. The
Borrower and the Lenders shall execute such documents as shall be necessary to
effect such appointment. After any retiring Administrative Agent's resignation
or removal as Administrative Agent, the provisions of section 10 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the Notes. If at any time
hereunder there shall not be a duly appointed and acting Ad ministrative Agent,
the Borrower agrees to make each payment due hereunder and under the Notes
directly to the Lenders entitled thereto during such time.
(b) If at any time the Collateral Agent deems it advisable, in
its sole discretion, it may submit to each of the Lenders a written notification
of its resignation as Collateral Agent under the Collateral Documents, such
resignation to be effective on the later to occur of (i) the thirtieth day after
the date of such notice and (ii) the date upon which any successor Collateral
Agent, in accordance with the provisions of this section 10.9 (and section 10.9
of the Other Credit Agreement), shall have accepted in writing its appointment
as such successor Collateral Agent. Upon any such resignation of the Collateral
Agent, the Required Lenders (together with the Required Lenders under and as
defined in the Other Credit Agreement) shall have the right to appoint from
among the Lenders a successor Collateral Agent. If no successor Collateral Agent
shall have been so appointed and accepted such appointment within 30 days after
the retiring Collateral Agent's giving of notice of resignation, then the
retiring Collateral Agent may, on behalf of the Lenders (and the Lenders under
and as defined in the Other Credit Agreement), appoint a successor Collateral
Agent, which successor Collateral Agent shall be a commercial bank organized
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $100,000,000. Upon the
acceptance of any appointment as Collateral Agent by a successor Collateral
Agent, such successor Collateral Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Collateral Agent, and the retiring Collateral Agent's rights, powers, privileges
and duties as Collateral Agent under the Collateral Documents shall be
terminated. The Borrower and the Lenders shall execute such documents as shall
be necessary to effect such appointment. After any retiring Collateral Agent's
resignation or removal as Collateral Agent, the provisions of section 10 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Collateral Agent under the Collateral Documents.
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10.10 Updating Exhibits and Schedules.
The Administrative Agent is hereby authorized and directed
from time to time to (i) amend Exhibit A to reflect the Commitments of each
Lender as of the date of each assignment pursuant to section 11.7 and, in
connection therewith, the Lending Offices and address for notices of each
assignee "Lender", (ii) amend Schedule 1.1(L) to reflect any change of address
of which the Administrative Agent has received written notice pursuant to
section 11.2, and (iii) in each such case, to send a copy thereof to each party
hereto.
10.11 Co-Syndication Agents.
The Co-Syndication Agents shall have only the duties and
obligations expressly set forth in the Loan Documents in their capacity as
Co-Syndication Agents and shall have the same rights, protections, immunities
and indemnities as the Administrative Agent.
10.12 The Managing Agents.
The Managing Agents shall have no duties or obligations under
the Loan Documents in their capacity as Managing Agents.
10.13 The Agent.
The Agent shall have no duties or obligations under the Loan
Documents in its capacity as Agent.
10.14 The Co-Agents.
The Co-Agents shall have no duties or obligations under the
Loan Documents in their capacity as Co-Agents.
10.15 The Arrangers.
The Arrangers shall have no duties or obligations under the
Loan Documents in their capacity as Arrangers.
11. MISCELLANEOUS
11.1 Amendments and Waivers.
With the written consent of the Required Lenders, which
consent may be transmitted by telecopier, the Administrative Agent or the
Collateral Agent, as the case may be, and the appropriate Loan Parties may, from
time to time, enter into written amendments, supplements or modifications of the
Loan Documents and, with the consent of the Required Lenders, the Administrative
Agent or the Collateral Agent, as the case may be, on behalf of the Lenders may
execute and deliver to any such parties a written instrument waiving or
consenting to the departure from, on such terms and conditions as the
Administrative Agent or the Collateral Agent, as the case may be, may specify in
such instrument, any of the requirements of the Loan Documents or any Default or
Event of Default and its consequences; provided, however, that:
(a) no such amendment, supplement, modification, waiver or
consent shall, without the
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written consent of all of the Lenders, (i) increase or decrease the Commitments
(other than pursuant to the terms of section 2.4), (ii) extend the Maturity
Date, the RC/TL Commitment Termination Date or the SD/TL Commitment Termination
Date, (iii) extend the date or decrease the amount of any required principal
amortization payment of the Loans pursuant to section 2.5(b) or (c), (iv)
decrease the rate, extend the time or change the pro rata method of payment of
interest or principal on or applicable to any Note, (v) decrease the amount,
extend the time or change the pro rata method of payment of the Commitment Fee,
(vi) release all or any part of the Collateral or any Subsidiary Guaranty except
in connection with a permitted sale or other permitted disposition of the
Collateral or the applicable Subsidiary Guarantor, as the case may be, or to the
extent that the Administrative Agent or the Collateral Agent shall be required
or permitted to do so under the terms and provisions of the Loan Documents,
(vii) change the definition of Required Lenders, or (viii) change the provisions
of this section 11.1;
(b) any amendment, supplement, modification, waiver or consent
to the Collateral Documents shall be subject to the receipt by the Collateral
Agent of the consent of the Combined Required Lenders or all of the Lenders
(hereunder and under and as defined in the Other Credit Agreement, as the
context may require.
(c) without the written consent of the Administrative Agent or
the Collateral Agent, as the case may be, no such amendment, supplement,
modification or waiver shall amend, modify or waive any provision of section 10
or otherwise change any of the rights or obligations of the Administrative Agent
or the Collateral Agent, as the case may be, under the Loan Documents; and
(d) without the written consent of the Co-Syndication Agents,
no such amendment, supplement, modification or waiver shall amend, modify or
waive any provision of section 10 applicable to the Co-Syndication Agents or
otherwise change any of the rights or obligations of the Co-Syndication Agents
hereunder or under the Loan Documents.
Any such amendment, supplement, modification or waiver shall
apply equally to each of the Lenders and shall be binding upon the parties to
the applicable agreement, the Lenders, the Administrative Agent, the Collateral
Agent, the Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents
and all future holders of the Notes. In the case of any waiver, the parties to
the applicable agreement, the Lenders, the Administrative Agent, the Collateral
Agent, the Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents
shall be restored to their former position and rights under the Loan Documents
to the extent provided for in such waiver, and any Default or Event of Default
waived shall not extend to any subsequent or other Default or Event of Default,
or impair any right consequent thereon.
11.2 Notices.
Except as otherwise expressly provided herein, all notices,
requests and demands to or upon the respective parties hereto to be effective
shall be in writing and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made (i) when delivered by hand, (ii) one
Business Day after having been sent by overnight courier service, (iii) five
Business Days after having been deposited in the mail, first-class postage
prepaid, or (iv) in the case of telecopier notice, when sent and transmission
confirmed (which may include electronic confirmation), addressed as follows in
the case of the Borrower, the Administrative Agent and the Collateral Agent, and
as set forth in Schedule 1.1(L) hereto in the case of each of the Lenders, or to
such other addresses as to which the Administrative Agent and the Collateral
Agent may be hereafter notified by the respective parties hereto or any future
holders of the Notes:
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The Borrower:
American Radio Systems Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative Agent, the Collateral Agent and/or BNY:
The Bank of New York
Communications, Publishing & Entertainment Division
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to, in the case of all Borrowing Requests, prepayment notices under
section 2.5(a) and conversion notices under section 2.8, and to the attention
of, in the case of all fundings by the Lenders:
The Bank of New York, as Administrative Agent
Agency Function Administration
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ (or 6366/6367)
except that any notice, request or demand by the Borrower to or upon the
Administrative Agent or the Lenders pursuant to section 2.3, 2.4, 2.5 or 2.8
shall not be effective until received.
11.3 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part
of the Administrative Agent, the Collateral Agent or any Lender, any right,
remedy, power or privilege under any Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege under any Loan Document preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges under the Loan Documents are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
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11.4 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 Agreement, the Notes
and the other Loan Documents.
11.5 Payment of Expenses and Taxes.
The Borrower agrees, promptly upon presentation of a statement
or invoice therefor, and whether or not any Loan is made, (i) to pay or
reimburse the Administrative Agent, the Collateral Agent, the Co-Syndication
Agents and the Arrangers for all their out-of-pocket reasonable costs and
expenses incurred in connection with the development, preparation, execution and
syndication of, and any amendment, waiver, consent, supplement or modification
to, the Loan Documents, any documents prepared in connection therewith and the
consummation of the transactions contemplated hereby and thereby, whether such
Loan Documents or any such other documents are executed and whether the
transactions contemplated thereby are consummated, including, without
limitation, the reasonable fees and disbursements of Special Counsel, (ii) to
pay or reimburse the Administrative Agent, the Collateral Agent, the
Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents, the
Arrangers and the Lenders for all of their respective reasonable costs and
expenses incurred in connection with the work-out, enforcement or preservation
of any rights under the Loan Documents and any such documents, including,
without limitation, reasonable fees and disbursements of counsel to the
Administrative Agent, the Collateral Agent, the Co-Syndication Agents, the
Managing Agents, the Agent, the Co-Agents, the Arrangers and the Lenders
including, without limitation, reasonable expenses of the Administrative Agent,
the Collateral Agent, the Co-Syndication Agents, the Managing Agents, the Agent,
the Co-Agents, the Arrangers and the Lenders in connection with or attributable
to commercial finance examiners, accountants, investment banks and environmental
consultants, (iii) to pay, indemnify, and hold each Lender, the Administrative
Agent, the Collateral Agent, the Co-Syndication Agents, the Managing Agents, the
Agent, the Co-Agents 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 Taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
any of the Loan Documents and any such other documents, and (iv) to pay,
indemnify and hold each Lender, the Administrative Agent, the Collateral Agent,
the Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents and the
Arrangers and each of their respective officers, directors, employees and agents
harmless from and against any and all other liabilities, obligations, claims,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including, without limitation,
reasonable counsel fees and dis bursements) with respect to the execution,
delivery, enforcement and performance of the Loan Documents or the use of the
proceeds of the Loans hereunder (all the foregoing, collectively, the
"indemnified liabilities") and, if and to the extent that the foregoing
indemnity may be unenforceable for any reason, the Borrower agrees to make the
maximum payment permitted under applicable law; provided, however, that the
Borrower shall have no obligation hereunder to pay indemnified liabilities to
the Administrative Agent, the Collateral Agent, any Co-Syndication Agent, any
Managing Agent, the Agent, any Co-Agent, any Arranger or any Lender to the
extent arising directly and primarily from the gross negligence or willful
misconduct of the Administrative Agent, the Collateral Agent, such
Co-Syndication Agent, such Managing Agent, the Agent, such Co-Agent, such
Arranger or such Lender, as the case may be. The agreements in this section 11.5
shall survive the termination of the Commitments and the payment of the Notes
and all other amounts payable hereunder.
11.6 Lending Offices.
Subject to section 2.17(b), each Lender shall have the right
at any time and from time to time to transfer any Loan to a different office of
such Lender, provided that such Lender shall promptly notify the Administrative
Agent and the Borrower of any such change of office. Such office shall thereupon
become such Lender's Lending Office.
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11.7 Successors and Assigns.
(a) This Agreement, the Notes and the other Loan Documents to
which the Borrower is a party shall be binding upon and inure to the benefit of
the Borrower, the Lenders, the Administrative Agent, the Collateral Agent, the
Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents, all future
holders of the Notes and their respective successors and assigns, except that
the Borrower may not assign, delegate or transfer any of its rights or
obligations under this Agreement, the Notes and the Loan Documents to which the
Borrower is a party without the prior written consent of each Lender.
(b) Each Lender shall have the right at any time, upon written
notice to the Administrative Agent of its intent to do so, to sell or assign
(each an "Assignment") all or any part of its Loans, its Commitments and its
Notes (together and simultaneously with its Loans, its RC Commitments and its
Notes in each case under and as defined in the Other Credit Agreement), on a pro
rata basis (unless otherwise consented to by the Borrower), to one or more of
the other Lenders (or to affiliates of such Lender or such other Lenders) or,
with the written consent of the Borrower and the Administrative Agent (such
consent not to be (A) unreasonably withheld or delayed, or (B) with respect to
the Borrower, required during the continuance of an Event of Default) to any
other bank, insurance company, pension fund, mutual fund or other financial
institution, provided that (i) each such partial Assignment (together with the
simultaneous assignment made under the Other Credit Agreement) shall be in a
minimum aggregate amount of $5,000,000 (unless otherwise consented to by the
Borrower), (ii) the parties to each such Assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption Agreement along with a fee
(the "Assign ment Fee") of $1,500 ($3,000 if no simultaneous assignment is being
made by such parties under the Other Credit Agreement) with respect to the
Assignment made under this Agreement, and (iii) no such assignment may be made
to the Borrower or to any Affiliate of the Borrower. Upon receipt of each such
duly executed Assignment and Assumption Agreement together with the Assignment
Fee therefor in compliance with the provisions hereof, the Administrative Agent
shall (x) record the same and signify its acceptance thereof by executing two
copies of such Assignment and Assumption Agreement in the appropriate place and
delivering one copy to the assignor and one copy to the assignee and (y) request
the Borrower to execute and deliver (1) to such assignee one or more Notes, in
an aggregate principal amount equal to the Loans assigned to, and Commitments
assumed by, such assignee and (2) to such assignor one or more Notes, in an
aggregate principal amount equal to the balance of such assignor Lender's Loans
and Commitments, if any, in each case against receipt of such assignor Lender's
existing Notes. The Borrower agrees that it shall, upon each such request of the
Administrative Agent, execute and deliver such new Notes at its own cost and
expense. Upon such delivery, acceptance and recording by the Administrative
Agent, from and after the effective date specified in such Assignment and
Assumption Agreement, the assignee thereunder shall be a party hereto and shall
for all purposes of this Agreement and the other Loan Documents be deemed a
"Lender" and, to the extent pro vided in such Assignment and Assumption
Agreement, the assignor Lender thereunder shall be released from its obligations
under this Agreement and the other Loan Documents.
(c) Each Lender may grant participations in all or any part of
its Loans, its Notes or its Commitment to any other bank, insurance company,
pension fund, mutual fund, financial institution or other entity, provided that
no such participant shall have any right to require such Lender to take or omit
to take any action under any Loan Document except any action which would require
the consent of all Lenders pursuant to section 11.1. The Borrower hereby
acknowledges and agrees that any such participant shall for purposes of sections
2.9, 11.5, 11.9, 11.11 and 11.16 be deemed to be a "Lender".
(d) No Lender shall, as between and among the Borrower, the
Administrative Agent, the Collateral Agent, and such Lender, be relieved of any
of its obligations under the Loan Documents as a result of any Assignment or
granting of a participation in, all or any part of its Loans, its Commitments or
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its Notes, except that a Lender shall be relieved of its obligations to the
extent of any Assignment of all or any part of its Loans, its Commitments or its
Notes pursuant to subsection (b) above.
(e) Notwithstanding anything to the contrary contained in this
section 11.7, any Lender may at any time assign all or any portion of its rights
under the Loan Documents to a Federal Reserve Bank. No such assignment shall
release such Lender from its obligations thereunder.
11.8 Counterparts.
This Agreement and each of the other Loan Documents (other
than the Notes) may be executed by one or more of the parties to this Agreement
or to such other Loan Document, as the case may be, on any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same agreement. It shall not be necessary in making proof
of any Loan Document to produce or account for more than one counterpart signed
by the party to be charged. Any of the parties to this Agreement and the other
Loan Documents may rely on signatures of such parties hereto and thereto which
are transmitted by telecopier or other electronic means as fully as if
originally signed. A set of the copies of this Agreement and each of the other
Loan Documents signed by all the parties shall be lodged with each of the
Borrower, the Administrative Agent and the Collateral Agent.
11.9 Adjustments; Set-off.
(a) If any Lender (a "benefited Lender") shall at any time
receive any payment of all or any 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 9.1 (h) or (i), or otherwise) in a greater proportion than any such
payment to and 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 such portion of each such other
Lender's Loans, 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 shall notify the Administrative Agent and 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, unless the benefited Lender is required to
pay interest on the amount of the excess payment to be returned, in which case
the other Lenders shall pay their pro rata share of such 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, upon the occurrence of an Event of Default and acceleration of
the obligations owing in connection with this Agreement, or at any time upon the
occurrence and during the continuance of an Event of Default under section
9.1(a) or 9.1(b), each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, to set off and apply against any indebtedness,
whether matured or unmatured, of the Borrower to such Lender, any amount owing
from such Lender to the Borrower, at, or at any time after, the happening of any
of the above-mentioned events. To the extent permitted by applicable law, the
aforesaid right of set-off may be exercised by such Lender against the Borrower
or against any trustee in bankruptcy, custodian, debtor in possession, assignee
for the benefit of creditors, receiver, or execution, judgment or attachment
creditor of the Borrower, or against anyone else claiming through or against the
Borrower or such trustee in bankruptcy, custodian, 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 making, filing or issuance,
or service upon such Lender of, or of notice of, any such petition, assignment
for the benefit of
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creditors, appointment or application for the appointment of a receiver, or
issuance of execution, subpoena, order or warrant. Each Lender agrees promptly
to notify the Borrower and the Administrative Agent after any such set-off and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
11.10 No Third Party Beneficiary.
This Agreement is among the Borrower, the Lenders, the
Administrative Agent, the Collateral Agent, the Co-Syndication Agents, the
Managing Agents, the Agent, the Co-Agents and the Arrangers and no other Person
is intended to or shall have any rights hereunder or shall be permitted to rely
hereon.
11.11 Indemnity.
(a) The Borrower agrees to indemnify and hold harmless each of
the Administrative Agent, the Collateral Agent, the Co-Syndication Agents, the
Managing Agents, the Agent, the Co-Agents, the Arrangers, each Lender and each
of their respective officers, directors, employees and agents (each an
"Indemnified Party") from and against any loss, cost, liability, damage or
expense (including the reasonable fees and out-of-pocket expenses of counsel to
each such Indemnified Party, including all local counsel hired by any such
counsel) incurred by each such Indemnified Party in investigating, preparing
for, defending against, or providing evidence, producing documents or taking any
other action in respect of, any claim, commenced or threatened litigation,
administrative proceeding or investigation under any federal securities law or
any other statute of any jurisdiction, or any regulation, or at common law or
otherwise, which is alleged to arise out of or is based upon (i) any untrue
statement or alleged untrue statement of any material fact of the Borrower or
any Subsidiary in any document or schedule executed or filed with the Securities
and Exchange Commission or any other Governmental Authority by or on behalf of
the Borrower or any Subsidiary, (ii) any omission or alleged omission to state
any material fact required to be stated in such document or schedule, or
necessary to make the statements made therein, in light of the circumstances
under which made, not misleading, (iii) any of the Loan Documents, the
transactions contemplated hereby or thereby or any acts, practices or omissions
or alleged acts, practices or omissions of the Borrower or any of its agents
relating to the use of the proceeds of any or all borrowings made by the
Borrower which are alleged to be in violation of section 2.7, or in violation of
any federal securities law or of any other statute, regulation or other law of
any jurisdiction applicable thereto, or (iv) any acquisition or proposed
acquisition by the Borrower or any Subsidiary of all or a portion of the Stock,
or all or a portion of the assets, of any Person, in each case whether or not
any Indemnified Party is a party thereto.
(b) In addition to the indemnity provided under section
11.11(a), the Borrower agrees to defend, indemnify and hold harmless each
Indemnified Party from and against any loss, cost, liability, fine, penalties,
damage or expense (including the reasonable fees and out-of-pocket expenses of
counsel to each such Indemnified Party, including all local counsel hired by any
such counsel) suffered or incurred by each such Indemnified Party, pertaining to
any release or threatened release of a reportable quantity of any hazardous
substance or hazardous waste at any Property of the Borrower or any of its
Subsidiaries (a "Hazardous Discharge"), including, but not limited to, claims of
any Governmental Authority or any third Person, whether arising under or on
account of any Environmental Law or tort, contract or common law, including,
without limitation, the assertion of any Lien thereunder, with respect to any
Hazardous Discharge, the presence of any hazardous substances or hazardous
wastes affecting any Property of the Borrower or any of its Subsidiaries,
whether or not the same originates or engages from such Property or any
contiguous real estate, including any loss of value of such Property as a result
of the foregoing. The Borrower's obligations under this section 11.11(b) shall
arise upon the discovery of any Hazardous Discharge at such Property, whether or
not any Governmental Authority or any other Person has taken or threatened any
action in connection with the presence of any hazardous substances or hazardous
wastes.
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(c) The indemnities set forth herein shall be in addition to
any other obligations or liabilities of the Borrower to the Indemnified Parties
hereunder or at common law or otherwise, and shall survive any termination of
this Agreement, the expiration of the RC/TL Commitments and the SD/TL Commit
ments and the payment of all indebtedness of the Borrower hereunder and under
the other Loan Documents, provided that the Borrower shall have no obligation
under this section 11.11 to an Indemnified Party with respect to any of the
foregoing to the extent arising directly and primarily out of the gross
negligence or wilful misconduct of such Indemnified Party.
11.12 Governing Law.
This Agreement, the Notes and the other Loan Documents and the
rights and obligations of the parties under this Agreement, the Notes and the
other Loan Documents shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York, without regard to principles
of conflict of laws.
11.13 Headings.
Section headings have been inserted herein and in the other
Loan Documents for convenience only and shall not be construed to be a part
hereof or thereof.
11.14 Severability.
Every provision of this Agreement and the other Loan Documents
is intended to be severable, and if any term or provision hereof or thereof
shall be invalid, illegal or unenforceable for any reason, the validity,
legality and enforceability of the remaining provisions hereof or thereof shall
not be affected or impaired thereby, and any invalidity, illegality or
unenforceability in any jurisdiction shall not affect the validity, legality or
enforceability of any such term or provision in any other jurisdiction.
11.15 Integration.
All exhibits and schedules to this Agreement shall be deemed
to be a part of this Agreement or the applicable Loan Document, as the case may
be. Except for agreements between the Borrower and the Administrative Agent with
respect to certain fees, this Agreement and the other Loan Documents embody the
entire agreement and understanding among the Borrower, the Administrative Agent,
the Collateral Agent, the Co-Syndication Agents, the Managing Agents, the Agent,
the Co-Agents, the Arrangers and the Lenders with respect to the subject matter
hereof and thereof and supersede all prior agreements and understandings among
the Borrower, the Administrative Agent, the Collateral Agent, the Co-Syndication
Agents, the Managing Agents, the Agent, the Co-Agents, the Arrangers and the
Lenders with respect to the subject matter hereof and thereof.
11.16 Consent to Jurisdiction.
The Borrower hereby irrevocably submits to the jurisdiction of
any New York State or Federal Court sitting in the City of New York over any
suit, action or proceeding arising out of or relating to the Loan Documents. The
Borrower hereby irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding brought in such a court and any claim that any
such suit, action or proceeding brought in such a court has been brought in an
inconvenient forum. The Borrower hereby agrees that a final judgment in any such
suit, action or proceeding brought in such a court, after all appropriate
appeals, shall be conclusive and binding upon it.
-67-
11.17 Service of Process.
The Borrower hereby agrees that process may be served in any
suit, action, counterclaim or proceeding of the nature referred to in section
11.16 by mailing copies thereof by registered or certified mail, postage
prepaid, return receipt requested, to the address of the Borrower set forth in
section 11.2 or to any other address of which the Borrower shall have given
written notice to the Administrative Agent. The Borrower hereby agrees that such
service, to the extent permitted by applicable law (i) shall be deemed in every
respect effective service of process upon it in any such suit, action,
counterclaim or proceeding, and (ii) shall to the fullest extent enforceable by
law, be taken and held to be valid personal service upon and personal delivery
to it.
11.18 No Limitation on Service or Suit.
Nothing in the Loan Documents or any modification, waiver, or
amendment thereto shall affect the right of the Administrative Agent, the
Collateral Agent, the Co-Syndication Agents, the Managing Agents, the Agent, the
Co-Agents or any Lender to serve process in any manner permitted by law or limit
the right of the Administrative Agent, the Collateral Agent, the Co-Syndication
Agents, the Managing Agents, the Agent, the Co-Agents or any Lender to bring
proceedings against the Borrower in the courts of any jurisdiction or
jurisdictions.
11.19 WAIVER OF TRIAL BY JURY.
THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE CO-
SYNDICATION AGENTS, THE MANAGING AGENTS, THE AGENT, THE CO-AGENTS, THE LENDERS
AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT
THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF,
UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
THEREIN. FURTHER, THE BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT
OF THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE CO-SYNDICATION AGENTS,
THE MANAGING AGENTS, THE AGENT, THE CO- AGENTS OR THE LENDERS, OR COUNSEL TO THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE CO-SYNDICATION AGENTS, THE
MANAGING AGENTS, THE AGENT, THE CO-AGENTS OR THE LENDERS, HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE
CO-SYNDICATION AGENTS, THE MANAGING AGENTS, THE AGENT, THE CO-AGENTS OR THE
LENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER
OF RIGHT TO JURY TRIAL PROVISION. THE BORROWER ACKNOWLEDGES THAT THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE CO-SYNDICATION AGENTS, THE
MANAGING AGENTS, THE AGENT, THE CO-AGENTS AND THE LENDERS HAVE BEEN INDUCED TO
ENTER INTO THE LOAN DOCUMENTS BY, INTER ALIA, THE PROVISIONS OF THIS SECTION.
11.20 Confidentiality.
The Administrative Agent, the Collateral Agent, the
Co-Syndication Agents, the Managing Agents, the Agent, the Co-Agents and the
Lenders each agree that, without the prior written consent of the Borrower, it
will not disclose the terms of this Agreement or any material confidential
information with respect to the Borrower, or any of its Subsidiaries which is
furnished pursuant to this Agreement to any Person except (i) its accountants,
attorneys and other advisors who have a need to know such information or its
Affiliates, and, in each case, who agree to be bound by the provisions of this
section 11.20, (ii) to the extent such information is requested to be disclosed
to any regulatory or administrative body or commission to whose
-68-
jurisdiction the Administrative Agent, the Collateral Agent, the Co-Syndication
Agents, the Managing Agents, the Agent, the Co-Agents or such Lender is subject,
(iii) to the extent such information is requested or required to be disclosed by
subpoena or similar process of applicable law or regulation, (iv) to the extent
the Borrower has previously disclosed such information publicly or such
information is otherwise in the public domain (except by virtue of a breach by
the Administrative Agent, the Collateral Agent, any of the Co-Syndication
Agents, any of the Managing Agents, the Agent, any of the Co-Agents or such
Lender of its obligations under this section 11.20) at the time of disclosure,
(v) such information which is disclosed in connection with any litigation or
dispute between the Administrative Agent, the Collateral Agent, any of the
Co-Syndication Agents, any of the Managing Agents, the Agent, any of the
Co-Agents or such Lender and any Loan Party concerning this Agreement, any other
Loan Document, or any instrument or document executed or delivered in connection
herewith or therewith, (vi) such information which was in the possession of such
Person or such Person's Affiliates without the obligation of confidentiality
prior to the Administrative Agent, the Collateral Agent, such Co-Syndication
Agent, such Managing Agent, the Agent, such Co-Agent or such Lender furnishing
it to such Person, and (vii) in connection with a prospective assignment, grant
of a participation interest or other transfer by a Lender of any of its interest
in this Agreement or the Notes, provided that the Person to whom such
information is disclosed shall agree to be bound by the provisions of this
section 11.20.
-69-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
AMERICAN RADIO SYSTEMS CORPORATION
By:
Name:
Title:
THE BANK OF NEW YORK,
Individually and as Administrative Agent and
Collateral Agent
By:
Name:
Title:
THE CHASE MANHATTAN BANK,
Individually and as a Co-Syndication Agent
By:
Name:
Title:
THE TORONTO-DOMINION BANK,
Individually and as a Co-Syndication Agent
By:
Name:
Title:
BANK OF MONTREAL,
Individually and as a Managing Agent
By:
Name:
Title:
-1-
CREDIT SUISSE FIRST BOSTON,
Individually and as a Managing Agent
By:
Name:
Title:
By:
Name:
Title:
FLEET NATIONAL BANK,
Individually and as a Managing Agent
By:
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
Individually and as a Managing Agent
By:
Name:
Title:
BARCLAYS BANK PLC,
Individually and as Agent
By:
Name:
Title:
BANK OF AMERICA ILLINOIS,
Individually and as a Co-Agent
By:
Name:
Title:
-2-
THE SANWA BANK, LIMITED,
Individually and as a Co-Agent
By:
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME RATE INCOME
TRUST, Individually and as a Co-Agent
By:
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
Name:
Title:
CAISSE NATIONALE DE CREDIT AGRICOLE
By:
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:
Name:
Title:
THE DAI-ICHI KANGYO BANK, LIMITED
By:
Name:
Title:
-3-
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
Name:
Title:
LTCB TRUST COMPANY
By:
Name:
Title:
▇▇▇▇▇▇ BANK LTD. - NEW YORK BRANCH
By:
Name:
Title:
By:
Name:
Title:
NATIONAL BANK OF CANADA
By:
Name:
Title:
By:
Name:
Title:
THE NIPPON CREDIT BANK, LTD.
By:
Name:
Title:
-4-
THE SUMITOMO BANK, LIMITED
By:
Name:
Title:
By:
Name:
Title:
SUMMIT BANK
By:
Name:
Title:
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By:
Name:
Title:
THE TOYO TRUST & BANKING CO., LTD.
By:
Name:
Title:
US BANK OF WASHINGTON, N.A.
By:
Name:
Title:
-5-
TABLE OF CONTENTS
1. DEFINITIONS.............................................................................................-1-
1.1 Defined Terms.........................................................................-1-
1.2 Principles of Construction...........................................................-20-
2. AMOUNT AND TERMS OF LOANS..............................................................................-21-
2.1 Loans................................................................................-21-
2.2 Notes................................................................................-21-
2.3 Procedure for Borrowing Loans........................................................-22-
2.4 Termination or Reduction of Commitments..............................................-23-
2.5 Prepayments of the Loans.............................................................-24-
2.6 Interest Rate and Payment Dates; Highest Lawful Rate.................................-27-
2.7 Use of Proceeds......................................................................-28-
2.8 Conversions; Other Matters...........................................................-28-
2.9 Indemnification for Loss.............................................................-29-
2.10 Reimbursement for Costs..............................................................-30-
2.11 Illegality of Funding................................................................-31-
2.12 Option to Fund.......................................................................-31-
2.13 Taxes; Net Payments..................................................................-31-
2.14 Capital Adequacy.....................................................................-32-
2.15 Substituted Interest Rate............................................................-32-
2.16 Transaction Record...................................................................-33-
2.17 Certificates of Payment and Reimbursement; Other Provisions Regarding Yield
Protection...........................................................................-33-
3. FEES; PAYMENTS.........................................................................................-33-
3.1 Commitment Fees......................................................................-33-
3.2 Pro Rata Treatment and Application of Payments.......................................-34-
4. REPRESENTATIONS AND WARRANTIES.........................................................................-34-
4.1 Subsidiaries.........................................................................-35-
4.2 Corporate Existence and Power........................................................-35-
4.3 Corporate Authority..................................................................-35-
4.4 Governmental Authority Approvals.....................................................-35-
4.5 Binding Agreement....................................................................-35-
4.6 Litigation...........................................................................-35-
4.7 No Conflicting Agreements............................................................-36-
4.8 Taxes................................................................................-36-
4.9 Compliance with Applicable Laws......................................................-36-
4.10 Governmental Regulations.............................................................-36-
4.11 Property; Broadcasting Business......................................................-36-
4.12 Federal Reserve Regulations; Use of Loan Proceeds....................................-37-
4.13 No Misrepresentation.................................................................-37-
4.14 Plans................................................................................-37-
4.15 FCC Matters..........................................................................-37-
4.16 Burdensome Obligations...............................................................-38-
4.17 Financial Statements.................................................................-38-
4.18 Environmental Matters................................................................-38-
5. CONDITIONS OF LENDING..................................................................................-39-
5.1 First Loans..........................................................................-39-
5.2 All Loans............................................................................-40-
6. FINANCIAL COVENANTS....................................................................................-41-
6.1 Senior Leverage Ratio; Total Leverage Ratio..........................................-41-
6.2 Consolidated Annual Operating Cash Flow to Pro-Forma Debt Service....................-42-
6.3 Consolidated Annual Operating Cash Flow to Interest Expense..........................-42-
6.4 Consolidated Annual Operating Cash Flow to Fixed Charges.............................-42-
7. AFFIRMATIVE COVENANTS..................................................................................-43-
7.1 Financial Statements.................................................................-43-
7.2 Certificates; Other Information......................................................-44-
-i-
7.3 Legal Existence......................................................................-45-
7.4 Taxes................................................................................-45-
7.5 Insurance............................................................................-46-
7.6 Payment of Indebtedness and Performance of Obligations...............................-46-
7.7 Condition of Property................................................................-46-
7.8 Observance of Legal Requirements; ERISA; Environmental Laws..........................-47-
7.9 Inspection of Property; Books and Records; Discussions...............................-47-
7.10 Licenses, Etc........................................................................-47-
7.11 Additional FCC Licenses..............................................................-47-
7.12 Interest Rate Protection Arrangements................................................-47-
7.13 Subsidiary Guaranty..................................................................-48-
8. NEGATIVE COVENANTS.....................................................................................-48-
8.1 Borrowing............................................................................-48-
8.2 Liens................................................................................-48-
8.3 Merger and Acquisition or Sale of Property...........................................-49-
8.4 Dividends; Purchase of Stock.........................................................-50-
8.5 Investments, Loans, Etc..............................................................-51-
8.6 Business Changes.....................................................................-52-
8.7 Sale of Property.....................................................................-52-
8.8 Subsidiaries.........................................................................-53-
8.9 Compliance with ERISA................................................................-53-
8.10 Certificate of Incorporation and By-laws.............................................-53-
8.11 Prepayments of Indebtedness..........................................................-53-
8.12 Fiscal Year..........................................................................-53-
8.13 Amendments, Etc. of Certain Agreements...............................................-54-
8.14 Transactions with Affiliates.........................................................-54-
-ii-
8.15 License Subsidiaries.................................................................-54-
8.16 Sale and Leaseback...................................................................-54-
8.17 Prohibition on Management and Similar Fees...........................................-54-
8.18 Stock Issuance.......................................................................-54-
8.19 Indentures, Notes, Subsidiary Guaranties.............................................-54-
8.20 Federal Reserve Regulations..........................................................-55-
8.21 EZ Acquisition.......................................................................-55-
9. DEFAULT................................................................................................-57-
9.1 Events of Default....................................................................-57-
10. THE ADMINISTRATIVE AGENT; THE COLLATERAL AGENT; THE CO-SYNDICATION
AGENTS; THE MANAGING AGENTS; THE AGENT; THE CO-AGENTS; THE ARRANGERS...................................-59-
10.1 Appointment..........................................................................-59-
10.2 Delegation of Duties.................................................................-59-
10.3 Exculpatory Provisions...............................................................-59-
10.4 Reliance by Administrative Agent and Collateral Agent................................-60-
10.5 Notice of Default....................................................................-60-
10.6 Non-Reliance.........................................................................-60-
10.7 Indemnification......................................................................-61-
10.8 Administrative Agent and Collateral Agent in its Individual Capacity.................-61-
10.9 Successor............................................................................-62-
10.10 Updating Exhibits and Schedules......................................................-63-
10.11 Co-Syndication Agents................................................................-63-
10.12 The Managing Agents..................................................................-63-
10.13 The Agent............................................................................-63-
10.14 The Co-Agents........................................................................-63-
10.15 The Arrangers
11. MISCELLANEOUS..........................................................................................-63-
11.1 Amendments and Waivers...............................................................-63-
11.2 Notices..............................................................................-64-
11.3 No Waiver; Cumulative Remedies.......................................................-65-
11.4 Survival of Representations and Warranties...........................................-65-
11.5 Payment of Expenses and Taxes........................................................-66-
11.6 Lending Offices......................................................................-66-
11.7 Successors and Assigns...............................................................-67-
11.8 Counterparts.........................................................................-68-
11.9 Adjustments; Set-off.................................................................-68-
11.10 No Third Party Beneficiary...........................................................-69-
11.11 Indemnity............................................................................-69-
11.12 Governing Law........................................................................-70-
11.13 Headings.............................................................................-70-
11.14 Severability.........................................................................-70-
11.15 Integration..........................................................................-70-
11.16 Consent to Jurisdiction..............................................................-70-
11.17 Service of Process...................................................................-71-
11.18 No Limitation on Service or Suit.....................................................-71-
11.19 WAIVER OF TRIAL BY JURY..............................................................-71-
11.20 Confidentiality......................................................................-71-