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EXHIBIT 99.1
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 7, 2001
AMONG
THE ▇▇▇▇▇▇▇▇ GROUP, INC.
AS BORROWER,
THE LENDERS LISTED HEREIN,
AS LENDERS,
CREDIT SUISSE FIRST BOSTON,
AS ADMINISTRATIVE AGENT
GENERAL ELECTRIC CAPITAL CORPORATION,
AS CO-ARRANGER AND SYNDICATION AGENT
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CREDIT SUISSE FIRST BOSTON,
AS LEAD ARRANGER AND BOOKRUNNER
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TABLE OF CONTENTS
Page No.
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Section 1. DEFINITIONS...........................................................2
1.1 Certain Defined Terms.................................................2
1.2 Accounting Terms; Utilization of GAAP for Purposes of
Calculations Under Agreement.........................................28
1.3 Other Definitional Provisions and Rules of Construction..............28
Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS...........................29
2.1 Commitments; Making of Loans; the Register; Notes....................29
2.2 Interest on the Loans................................................35
2.3 Fees.................................................................39
2.4 Repayments, Prepayments and Reductions in Revolving Loan
Commitments; General Provisions Regarding Payments; Application
of Proceeds of Collateral and Payments Under Subsidiary Guaranty.....39
2.5 Use of Proceeds......................................................46
2.6 Special Provisions Governing Eurodollar Rate Loans...................47
2.7 Increased Costs; Taxes; Capital Adequacy.............................49
2.8 Statement of Lenders; Obligation of Lenders and Issuing Lenders
to Mitigate and Reimbursement for Recoveries.........................53
Section 3. LETTERS OF CREDIT....................................................54
3.1 Issuance of Letters of Credit and Lenders' Purchase of
Participations Therein...............................................54
3.2 Letter of Credit Fees................................................57
3.3 Drawings and Reimbursement of Amounts Paid Under Letters of
Credit...............................................................57
3.4 Obligations Absolute.................................................60
3.5 Indemnification; Nature of Issuing Lenders' Duties...................61
Section 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT............................62
4.1 Conditions to Term Loans and Initial Revolving Loans and Swing
Line Loans...........................................................62
4.2 Conditions to All Loans..............................................67
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4.3 Conditions to Letters of Credit......................................68
Section 5. COMPANY'S REPRESENTATIONS AND WARRANTIES.............................68
5.1 Organization, Powers, Qualification, Good Standing, Business
and Subsidiaries.....................................................68
5.2 Authorization of Borrowing, etc......................................70
5.3 Financial Condition..................................................71
5.4 No Material Adverse Change; No Restricted Junior Payments............71
5.5 Title to Properties; Liens; Real Property; Intellectual Property.....71
5.6 Litigation; Adverse Facts............................................73
5.7 Payment of Taxes.....................................................73
5.8 Performance of Material Contracts; Materially Adverse Agreements.....73
5.9 Governmental Regulation..............................................74
5.10 Securities Activities................................................74
5.11 Employee Benefit Plans...............................................74
5.12 Certain Fees.........................................................75
5.13 Environmental Protection.............................................75
5.14 Employee Matters.....................................................76
5.15 Solvency.............................................................76
5.16 Matters Relating to Collateral.......................................76
5.17 Disclosure...........................................................77
5.18 Subordinated Indebtedness............................................77
Section 6. COMPANY'S AFFIRMATIVE COVENANTS......................................77
6.1 Financial Statements and Other Reports...............................78
6.2 Existence, etc.......................................................82
6.3 Payment of Taxes and Claims; Tax.....................................82
6.4 Maintenance of Properties; Insurance; Application of Net
Insurance/ Condemnation Proceeds.....................................83
6.5 Inspection Rights; Lender Meeting....................................85
6.6 Compliance with Laws, etc............................................85
6.7 Environmental Matters................................................85
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6.8 Execution of Subsidiary Guaranty and Personal Property
Collateral Documents After the Closing Date..........................86
6.9 Matters Relating to Additional Real Property Collateral..............87
6.10 FCC Matters..........................................................88
6.11 License Subs.........................................................88
6.12 Post-Closing Mortgaged Properties....................................89
Section 7. COMPANY'S NEGATIVE COVENANTS.........................................90
7.1 Indebtedness.........................................................90
7.2 Liens and Related Matters............................................91
7.3 Investments; Acquisitions; LMA's.....................................92
7.4 Contingent Obligations...............................................93
7.5 Restricted Junior Payments...........................................94
7.6 Financial Covenants..................................................94
7.7 Restriction on Fundamental Changes; Asset Sales......................97
7.8 Consolidated Capital Expenditures....................................98
7.9 Transactions with Shareholders and Affiliates........................99
7.10 Sales and Lease-Backs................................................99
7.11 Conduct of Business.................................................100
7.12 Amendments of Documents Relating to Subordinated Indebtedness.......100
7.13 Fiscal Year.........................................................100
Section 8. EVENTS OF DEFAULT...................................................100
8.1 Failure to Make Payments When Due...................................100
8.2 Default in Other Agreements.........................................101
8.3 Breach of Certain Covenants.........................................101
8.4 Breach of Warranty..................................................101
8.5 Other Defaults Under Loan Documents.................................101
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc................101
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc..................102
8.8 Judgments and Attachments...........................................102
8.9 Dissolution.........................................................103
8.10 Employee Benefit Plans..............................................103
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8.11 Change in Control...................................................103
8.12 Invalidity of Subsidiary Guaranty; Failure of Security;
Repudiation of Obligations..........................................103
8.13 FCC Licenses........................................................103
8.14 Effective Subordination.............................................104
Section 9. ADMINISTRATIVE AGENT................................................105
9.1 Appointment.........................................................105
9.2 Powers and Duties; General Immunity.................................106
9.3 Independent Investigation by Lenders; No Responsibility For
Appraisal of Creditworthiness.......................................107
9.4 Right to Indemnity..................................................108
9.5 Successor Administrative Agent and Swing Line Lender................108
9.6 Collateral Documents and Guaranties.................................109
9.7 Duties of Other Agents..............................................110
9.8 Administrative Agent May File Proofs of Claim.......................110
Section 10. MISCELLANEOUS.......................................................111
10.1 Successors and Assigns; Assignments and Participations in Loans
and Letters of Credit...............................................111
10.2 Expenses............................................................115
10.3 Indemnity...........................................................116
10.4 Set-Off; Security Interest in Deposit Accounts......................117
10.5 Ratable Sharing.....................................................117
10.6 Amendments and Waivers..............................................118
10.7 Independence of Covenants...........................................119
10.8 Notices; Effectiveness of Signatures................................120
10.9 Survival of Representations, Warranties and Agreements..............120
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative...............120
10.11 Marshalling; Payments Set Aside.....................................121
10.12 Severability........................................................121
10.13 Obligations Several; Independent Nature of Lenders' Rights..........121
10.14 Headings............................................................121
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10.15 Applicable Law......................................................122
10.16 Construction of Agreement; Nature of Relationship...................122
10.17 Consent to Jurisdiction and Service of Process......................122
10.18 Waiver of Jury Trial................................................123
10.19 Confidentiality.....................................................123
10.20 Counterparts; Effectiveness.........................................124
Signature pages...........................................................................S-1
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EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF REQUEST FOR ISSUANCE OF LETTER OF CREDIT
IV FORM OF SECURITIES AGREEMENTS
V FORM OF TERM NOTE
VI FORM OF REVOLVING NOTE
VII FORM OF SWING LINE NOTE
VIII FORM OF COMPLIANCE CERTIFICATE
IX-A FORM OF OPINION OF COMPANY COUNSEL
IX-B FORM OF OPINION OF FCC COUNSEL
X FORM OF OPINION OF O'MELVENY & ▇▇▇▇▇ LLP
XI FORM OF ASSIGNMENT AGREEMENT
XII FORM OF SOLVENCY CERTIFICATE
XIII FORM OF SUBSIDIARY GUARANTY
XIV FORM OF SECURITY AGREEMENT
XV(A) FORM OF DEED OF TRUST
XV(B) FORM OF MORTGAGE
XVI FORM OF ENVIRONMENTAL INDEMNITY AGREEMENT
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SCHEDULES
1.1A CONSOLIDATED EBITDA ADJUSTMENTS
1.1B CERTAIN OPERATING LEASES
4.1C CORPORATE STRUCTURE
5.1 SUBSIDIARIES OF COMPANY
5.5B REAL PROPERTY
5.5C INTELLECTUAL PROPERTY
5.6 LITIGATION
7.1 CERTAIN EXISTING INDEBTEDNESS
7.2 CERTAIN EXISTING LIENS
7.3 CERTAIN EXISTING INVESTMENTS; LMA's
7.4 CERTAIN EXISTING CONTINGENT OBLIGATIONS
7.9 CERTAIN TRANSACTIONS WITH AFFILIATES
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THE ▇▇▇▇▇▇▇▇ GROUP, INC.
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of September 7, 2001 and
entered into by and among THE ▇▇▇▇▇▇▇▇ GROUP, INC., a Delaware corporation
("COMPANY"), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF
(each individually referred to herein as a "LENDER" and collectively as
"LENDERS"), and CREDIT SUISSE FIRST BOSTON ("CSFB"), as administrative agent for
Lenders (in such capacity, "ADMINISTRATIVE AGENT"), CSFB as Lead Arranger and
Bookrunner, and GENERAL ELECTRIC CAPITAL CORPORATION, as Co-arranger and
Syndication Agent ("SYNDICATION AGENT").
R E C I T A L S
WHEREAS, Lenders, at the request of Company, have agreed to
extend certain credit facilities to Company, the proceeds of which will be used
to refinance certain existing indebtedness of Company, to finance certain tax
payments and certain subordinated debt interest payments, and to provide
financing for working capital and other general corporate purposes of Company
and its Subsidiaries;
WHEREAS, Company desires to secure all of the Obligations
hereunder and under the other Loan Documents by granting to Administrative
Agent, on behalf of Lenders, a first priority Lien on substantially all of its
property, including a pledge of all of the capital stock of its wholly-owned
Domestic Subsidiaries, all of the capital stock owned by Company in other
Domestic Subsidiaries and 66% of the capital stock of each Foreign Subsidiary;
and
WHEREAS, all of the wholly-owned Domestic Subsidiaries of
Company have agreed to guarantee the Obligations hereunder and under the other
Loan Documents and to secure their guaranties by granting to Administrative
Agent, on behalf of Lenders, a first priority Lien on substantially all of their
property, including a pledge of all of the capital stock of their wholly-owned
Domestic Subsidiaries, all of the capital stock owned by them in other Domestic
Subsidiaries and 66% of the capital stock of each Foreign Subsidiary;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, Company, Lenders, and
Administrative Agent agree as follows:
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SECTION 1. DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
The following terms used in this Agreement shall have the
following meanings:
"ADDITIONAL MORTGAGED PROPERTY" has the meaning set forth in
subsection 6.9.
"ADDITIONAL MORTGAGES" has the meaning set forth in subsection
6.9.
"ADMINISTRATIVE AGENT" has the meaning assigned to that term in
the introduction to this Agreement and also means and includes any successor
Administrative Agent appointed pursuant to subsection 9.5A.
"AFFECTED LENDER" has the meaning assigned to that term in
subsection 2.6C.
"AFFECTED LOANS" has the meaning assigned to that term in
subsection 2.6C.
"AFFILIATE", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise.
"AGREEMENT" means this Credit Agreement dated as of September 7,
2001, as it may be amended, supplemented or otherwise modified from time to
time.
"APPROVED FUND" means a Fund that is administered, advised or
managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an
Affiliate of an entity that administers, advises or manages a Lender.
"ASSET SALE" means the sale by Company or any of its
Subsidiaries to any Person other than Company or any of its wholly-owned
Subsidiary Guarantors of (i) any of the stock of any of Company's Subsidiaries,
(ii) substantially all of the assets of any division or line of business of
Company or any of its Subsidiaries, or (iii) any other assets (whether tangible
or intangible) of Company or any of its Subsidiaries (other than (a) inventory
sold in the ordinary course of business and (b) any such other assets to the
extent that the aggregate value of such assets sold in any single transaction or
related series of transactions is equal to $250,000 or less up to a maximum
aggregate amount for all such excluded assets since the Closing Date of
$2,000,000).
"ASSIGNMENT AGREEMENT" means an Assignment Agreement in
substantially the form of Exhibit XI annexed hereto.
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"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy", as now and hereafter in effect, or any successor statute.
"BASE RATE" means, at any time, the higher of (i) the Prime Rate
or (ii) the rate which is 1/2 of 1% in excess of the Federal Funds Effective
Rate.
"BASE RATE LOANS" means Loans bearing interest at rates
determined by reference to the Base Rate as provided in subsection 2.2A.
"BUSINESS DAY" means (i) for all purposes other than as covered
by clause (ii) below, any day excluding Saturday, Sunday and any day which is a
legal holiday under the laws of the State of New York or is a day on which
banking institutions located in such state are authorized or required by law or
other governmental action to close, and (ii) with respect to all notices,
determinations, fundings and payments in connection with the Eurodollar Rate or
any Eurodollar Rate Loans, any day that is a Business Day described in clause
(i) above and that is also a day for trading by and between banks in Dollar
deposits in the London interbank market.
"CAPITAL LEASE", as applied to any Person, means any lease of
any property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"CAPITAL STOCK" means the capital stock or other equity
interests of a Person.
"CASH" means money, currency or a credit balance in a Deposit
Account or a Securities Account.
"CASH EQUIVALENTS" means, as at any date of determination, (i)
marketable securities (a) issued or directly and unconditionally guaranteed as
to interest and principal by the United States Government or (b) issued by any
agency of the United States the obligations of which are backed by the full
faith and credit of the United States, in each case maturing within one year
after such date; (ii) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or any
public instrumentality thereof, in each case maturing within one year after such
date and having, at the time of the acquisition thereof, the highest rating
obtainable from either Standard & Poor's ("S&P") or ▇▇▇▇▇'▇ Investors Service,
Inc. ("MOODY'S"); (iii) commercial paper maturing no more than one year from the
date of creation thereof and having, at the time of the acquisition thereof, a
rating of at least A-1 from S&P or at least P-1 from Moody's; (iv) certificates
of deposit or bankers' acceptances maturing within one year after such date and
issued or accepted by any Lender or by any commercial bank organized under the
laws of the United States of America or any state thereof or the District of
Columbia that (a) is at least "adequately capitalized" (as defined in the
regulations of its primary Federal banking regulator) and (b) has Tier 1 capital
(as defined in such regulations) of not less than $100,000,000; and (v) shares
of any money market mutual fund that (a) has at least 95% of its assets invested
continuously in the types of investments referred to in clauses (i) and (ii)
above, (b) has net assets of not less than $500,000,000, and (c) has the highest
rating obtainable from either S&P or Moody's. Cash Equivalents includes any
items described in the foregoing clauses (i)-(v) which are held in a Securities
Account.
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"CHANGE IN CONTROL" means any of the following: (i) the ▇▇▇▇▇▇▇▇
Family shall cease to beneficially own and control at least a majority of the
issued and outstanding shares of capital stock of Company entitled (without
regard to the occurrence of any contingency) to vote for the election of members
of the Governing Body of Company; (ii) the occurrence of any "Change of Control"
as defined in any indenture governing Subordinated Indebtedness, and (iii) the
consummation of a Rule 13e-3 transaction (as that term is defined in Rule 13e-3
under the Exchange Act), otherwise known as a "going private" transaction. As
used herein, the term "beneficially own" or "beneficial ownership" shall have
the meaning set forth in Rule 13d-3 promulgated under the Exchange Act. As used
herein, "▇▇▇▇▇▇▇▇ Family" means (a) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and the spouse and lineal
descendants of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, whether by blood or adoption, (b) any trusts
for the exclusive benefit of the individuals referred to in clause (a) above or
the executor or administrator of the estate of or other legal representative of
the individuals referred to in clause (a) above, and (c) any other Person, at
least a majority of the outstanding voting stock of which is owned, of record
and beneficially, by any of the Persons referred to in clause (a) or (b) above.
"CLASS", as applied to Lenders, means each of the following two
classes of Lenders: (i) Lenders having Revolving Loan Exposure and (ii) Lenders
having Term Loan Exposure.
"CLOSING DATE" means the date on which the initial Loans are
made.
"COLLATERAL" means, collectively, all of the real, personal and
mixed property in which Liens are purported to be granted pursuant to the
Collateral Documents as security for the Obligations.
"COLLATERAL ACCOUNT" has the meaning assigned to that term in
the Security Agreement.
"COLLATERAL DOCUMENTS" means the Security Agreement, the
Securities Agreements, any Foreign Pledge Agreements, the Mortgages, if any, and
all other instruments or documents delivered by any Loan Party pursuant to this
Agreement or any of the other Loan Documents in order to grant to Administrative
Agent, on behalf of Lenders, a Lien on any property of that Loan Party as
security for the Obligations.
"COMMERCIAL LETTER OF CREDIT" means any letter of credit or
similar instrument issued for the purpose of providing the primary payment
mechanism in connection with the purchase of any materials, goods or services by
Company or any of its Subsidiaries in the ordinary course of business of Company
or such Subsidiary.
"COMMITMENTS" means the commitments of Lenders to make Loans as
set forth in subsection 2.1A.
"COMMUNICATIONS ACT" means the Communications Act of 1934, as
amended, and the rules, regulations and policies of the FCC promulgated
thereunder, and any successor statute as from time to time in effect.
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"COMPANY" has the meaning assigned to that term in the
introduction to this Agreement.
"COMPLIANCE CERTIFICATE" means a certificate substantially in
the form of Exhibit VIII annexed hereto.
"CONFORMING LEASEHOLD INTEREST" means any Recorded Leasehold
Interest as to which the lessor has agreed in writing for the benefit of
Administrative Agent (which writing has been delivered to Administrative Agent),
whether under the terms of the applicable lease, under the terms of a Landlord
Consent and Estoppel, or otherwise, to the matters described in the definition
of "Landlord Consent and Estoppel," which interest, if a subleasehold or
sub-subleasehold interest, is not subject to any contrary restrictions contained
in a superior lease or sublease.
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the
sum of the aggregate of all expenditures (whether paid in cash or other
consideration or accrued as a liability and including that portion of Capital
Leases which is capitalized on the consolidated balance sheet of Company and its
Subsidiaries) by Company and its Subsidiaries during that period that, in
conformity with GAAP, are included in "additions to property, plant or
equipment" or comparable items reflected in the consolidated statement of cash
flows of Company and its Subsidiaries; provided that Consolidated Capital
Expenditures shall not include any expenditures for acquisitions or Investments
made pursuant to subsection 7.3(vi). For purposes of this definition, the
purchase price of equipment that is purchased simultaneously with the trade-in
of existing equipment or with insurance proceeds shall be included in
Consolidated Capital Expenditures only to the extent of the gross amount of such
purchase price less the credit granted by the seller of such equipment for the
equipment being traded in at such time or the amount of such proceeds, as the
case may be.
"CONSOLIDATED CASH NET INTEREST EXPENSE" means, for any period,
Consolidated Net Interest Expense for such period excluding, however, any
interest expense not payable in Cash (including amortization of discount and
amortization of debt issuance costs).
"CONSOLIDATED CURRENT ASSETS" means, as at any date of
determination, the total assets of Company and its Subsidiaries on a
consolidated basis which may properly be classified as current assets in
conformity with GAAP, excluding Cash and Cash Equivalents.
"CONSOLIDATED CURRENT LIABILITIES" means, as at any date of
determination, the total liabilities of Company and its Subsidiaries on a
consolidated basis which may properly be classified as current liabilities in
conformity with GAAP, excluding the current portions of Funded Debt.
"CONSOLIDATED EBITDA" means, for any period, the sum, without
duplication, of the amounts for such period of (i) Consolidated Net Income, (ii)
Consolidated Net Interest Expense, (iii) provisions for taxes based on income,
(iv) total depreciation expense, (v) total amortization expense, (vi) other
non-cash items (other than any such non-cash item to the extent it represents an
accrual of or reserve for cash expenditures in any future period), and (vii) for
Fiscal Quarters ending on or prior to June 30, 2002, the adjustments described
in Schedule 1.1A
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in amounts not to exceed the amounts set forth on Schedule 1.1A for such Fiscal
Quarters, but only, in the case of clauses (ii)-(vii), to the extent deducted in
the calculation of Consolidated Net Income, less other non-cash items added in
the calculation of Consolidated Net Income (other than any such non-cash item to
the extent it will result in the receipt of cash payments in any future period),
all of the foregoing as determined on a consolidated basis for Company and its
Subsidiaries in conformity with GAAP.
"CONSOLIDATED EXCESS CASH FLOW" means, for any period, an amount
(if positive) equal to (i) the sum, without duplication, of the amounts for such
period of (a) Consolidated EBITDA and (b) the Consolidated Working Capital
Adjustment minus (ii) the sum, without duplication, of the amounts for such
period of (a) voluntary and scheduled repayments of Consolidated Total Debt
(excluding repayments of Revolving Loans except to the extent the Revolving Loan
Commitments are permanently reduced in connection with such repayments), (b)
Consolidated Capital Expenditures (net of any proceeds of any related financings
with respect to such expenditures), (c) Consolidated Cash Net Interest Expense,
and (d) the provision for current taxes based on income of Company and its
Subsidiaries and paid in cash with respect to such period.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum
(without duplication) of the amounts for such period of (i) Consolidated Cash
Net Interest Expense, (ii) scheduled principal payments in respect of
Consolidated Total Debt, (iii) provisions for taxes based on income and paid in
cash (excluding taxes paid in connection with Asset Sales), and (iv)
Consolidated Capital Expenditures, all of the foregoing as determined on a
consolidated basis for Company and its Subsidiaries in conformity with GAAP.
"CONSOLIDATED INTEREST COVERAGE RATIO" means, as of the last day
of any Fiscal Quarter, the ratio of (a) Consolidated EBITDA to (b) Consolidated
Net Interest Expense for the consecutive four Fiscal Quarter period ending on
such date.
"CONSOLIDATED NET INTEREST EXPENSE" means, for any period, total
interest expense (including that portion attributable to Capital Leases in
accordance with GAAP and capitalized interest) of Company and its Subsidiaries
on a consolidated basis with respect to all outstanding Indebtedness of Company
and its Subsidiaries, including all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance financing
and net costs under Hedge Agreements, but excluding, however, any amounts
referred to in subsection 2.3 payable to Administrative Agent and Lenders on or
before the Closing Date, net of cash interest income of Company and its
Subsidiaries on a consolidated basis.
"CONSOLIDATED NET INCOME" means, for any period, the net income
(or loss) of Company and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with GAAP;
provided that there shall be excluded (i) the income (or loss) of any Person
(other than a Subsidiary of Company) in which any other Person (other than
Company or any of its Subsidiaries) has a joint interest, except to the extent
of the amount of dividends or other distributions actually paid to Company or
any of its Subsidiaries by such Person during such period, (ii) the income (or
loss) of any Person accrued prior to the date it becomes a Subsidiary of Company
or is merged into or consolidated with
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Company or any of its Subsidiaries or that Person's assets are acquired by
Company or any of its Subsidiaries, (iii) the income of any Subsidiary of
Company to the extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of that income is not at the time permitted by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary, (iv) any after-tax gains or losses attributable to Asset Sales, and
(v) (to the extent not included in clauses (i) through (iv) above) any net
extraordinary gains or net non-cash extraordinary losses.
"CONSOLIDATED SENIOR LEVERAGE RATIO" means, as of the last day
of any Fiscal Quarter, the ratio of (a) Senior Debt as at such day to (b)
Consolidated EBITDA for the consecutive four Fiscal Quarters ending on such day.
"CONSOLIDATED TOTAL DEBT" means, as at any date of
determination, the aggregate stated balance sheet amount of all Indebtedness of
Company and its Subsidiaries, determined on a consolidated basis in accordance
with GAAP.
"CONSOLIDATED WORKING CAPITAL" means, as at any date of
determination, the excess (or deficit) of Consolidated Current Assets over
Consolidated Current Liabilities.
"CONSOLIDATED WORKING CAPITAL ADJUSTMENT" means, for any period
on a consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the beginning of such period exceeds (or is
less than) Consolidated Working Capital as of the end of such period.
"CONTINGENT OBLIGATION", as applied to any Person, means any
direct or indirect liability, contingent or otherwise, of that Person (i) with
respect to any Indebtedness, lease, dividend or other obligation of another if
the primary purpose or intent thereof by the Person incurring the Contingent
Obligation is to provide assurance to the obligee of such obligation of another
that such obligation of another will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
obligation will be protected (in whole or in part) against loss in respect
thereof, (ii) with respect to any letter of credit issued for the account of
that Person or as to which that Person is otherwise liable for reimbursement of
drawings, or (iii) under Hedge Agreements. Contingent Obligations shall include
(a) the direct or indirect guaranty, endorsement (otherwise than for collection
or deposit in the ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of the obligation of another, (b)
the obligation to make take-or-pay or similar payments if required regardless of
non-performance by any other party or parties to an agreement, and (c) any
liability of such Person for the obligation of another through any agreement
(contingent or otherwise) (1) to purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide funds for the payment or
discharge of such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise) or (2) to maintain the solvency
or any balance sheet item, level of income or financial condition of another if,
in the case of any agreement described under subclauses (1) or (2) of this
sentence, the primary purpose or intent thereof is as described in the preceding
sentence. The amount of any Contingent Obligation shall be equal to the amount
of the obligation so guaranteed or otherwise supported or, if less, the amount
to which such Contingent Obligation is specifically limited.
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"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any Security issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
"CSFB" has the meaning assigned to that term in the introduction
to this Agreement.
"CURRENCY AGREEMENT" means any foreign exchange contract,
currency swap agreement, futures contract, option contract, synthetic cap or
other similar agreement or arrangement to which Company or any of its
Subsidiaries is a party.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or
similar account maintained with a Person engaged in the business of banking,
including a savings bank, savings and loan association, credit union or trust
company.
"DOLLARS" and the sign "$" mean the lawful money of the United
States of America.
"DOMESTIC SUBSIDIARY" means any Subsidiary of Company that is
incorporated or organized under the laws of the United States of America, any
state thereof or in the District of Columbia.
"ELIGIBLE ASSIGNEE" means (i) any Lender, any Affiliate of any
Lender and any Approved Fund of any Lender; and (ii) (a) a commercial bank
organized under the laws of the United States or any state thereof; (b) a
savings and loan association or savings bank organized under the laws of the
United States or any state thereof; (c) a commercial bank organized under the
laws of any other country or a political subdivision thereof; provided that (1)
such bank is acting through a branch or agency located in the United States or
(2) such bank is organized under the laws of a country that is a member of the
Organization for Economic Cooperation and Development or a political subdivision
of such country; and (d) any other entity that is an "accredited investor" (as
defined in Regulation D under the Securities Act) that extends credit or buys
loans as one of its businesses including insurance companies, mutual funds and
lease financing companies; provided that neither Company nor any Affiliate of
Company shall be an Eligible Assignee.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as
defined in Section 3(3) of ERISA which is or was maintained or contributed to by
Company, any of its Subsidiaries or any of their respective ERISA Affiliates.
"ENVIRONMENTAL CLAIM" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any Government Authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law, (ii) in connection with any
Hazardous Materials or any actual or alleged Hazardous Materials Activity, or
(iii) in
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connection with any actual or alleged damage, injury, threat or harm to health,
safety, natural resources or the environment.
"ENVIRONMENTAL LAWS" means any and all current or future
statutes, ordinances, orders, rules, regulations, guidance documents, judgments,
Governmental Authorizations, or any other requirements of any Government
Authority relating to (i) environmental matters, including those relating to any
Hazardous Materials Activity, (ii) the generation, use, storage, transportation
or disposal of Hazardous Materials, or (iii) occupational safety and health,
industrial hygiene, land use or the protection of human, plant or animal health
or welfare, in any manner applicable to Company or any of its Subsidiaries or
any Facility.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor thereto.
"ERISA AFFILIATE", as applied to any Person, means (i) any
corporation that is a member of a controlled group of corporations within the
meaning of Section 414(b) of the Internal Revenue Code of which that Person is a
member; (ii) any trade or business (whether or not incorporated) that is a
member of a group of trades or businesses under common control within the
meaning of Section 414(c) of the Internal Revenue Code of which that Person is a
member; and (iii) any member of an affiliated service group within the meaning
of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any
corporation described in clause (i) above or any trade or business described in
clause (ii) above is a member. Any former ERISA Affiliate of a Person or any of
its Subsidiaries shall continue to be considered an ERISA Affiliate of such
Person or such Subsidiary within the meaning of this definition with respect to
the period such entity was an ERISA Affiliate of such Person or such Subsidiary
and with respect to liabilities arising after such period for which such Person
or such Subsidiary could be liable under the Internal Revenue Code or ERISA.
"ERISA EVENT" means (i) a "reportable event" within the meaning
of Section 4043 of ERISA and the regulations issued thereunder with respect to
any Pension Plan (excluding those for which the provision for 30-day notice to
the PBGC has been waived by regulation); (ii) the failure to meet the minimum
funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the
Internal Revenue Code) or the failure to make by its due date a required
installment under Section 412(m) of the Internal Revenue Code with respect to
any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan
pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such
plan in a distress termination described in Section 4041(c) of ERISA; (iv) the
withdrawal by Company, any of its Subsidiaries or any of their respective ERISA
Affiliates from any Pension Plan with two or more contributing sponsors or the
termination of any such Pension Plan resulting in liability pursuant to Section
4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to
terminate any Pension Plan, or the occurrence of any event or condition which
might constitute grounds under ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan; (vi) the imposition of liability
on Company, any of its Subsidiaries or any of their respective ERISA Affiliates
pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of
Section 4212(c) of ERISA; (vii) the
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withdrawal of Company, any of its Subsidiaries or any of their respective ERISA
Affiliates in a complete or partial withdrawal (within the meaning of Sections
4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential
liability therefor, or the receipt by Company, any of its Subsidiaries or any of
their respective ERISA Affiliates of notice from any Multiemployer Plan that it
is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or
that it intends to terminate or has terminated under Section 4041A or 4042 of
ERISA; (viii) the assertion of a material claim (other than routine claims for
benefits) against any Employee Benefit Plan other than a Multiemployer Plan or
the assets thereof, or against Company, any of its Subsidiaries or any of their
respective ERISA Affiliates in connection with any Employee Benefit Plan; (ix)
receipt from the Internal Revenue Service of notice of the failure of any
Pension Plan (or any other Employee Benefit Plan intended to be qualified under
Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of
the Internal Revenue Code, or the failure of any trust forming part of any
Pension Plan to qualify for exemption from taxation under Section 501(a) of the
Internal Revenue Code; or (x) the imposition of a Lien pursuant to Section
401(a)(29) or 412(n) of the Internal Revenue Code or pursuant to ERISA with
respect to any Pension Plan.
"EURODOLLAR RATE" means, for any Interest Rate Determination
Date, with respect to any Eurodollar Rate Loan for any Interest Period, the rate
per annum obtained by dividing (i) the rate per annum determined by the
Administrative Agent at approximately 11:00 a.m. (London time) on the date which
is two Business Days prior to the beginning of such Interest Period by reference
to the British Bankers' Association Interest Settlement Rates for deposits in
Dollars (as set forth by any service selected by the Administrative Agent which
has been nominated by the British Bankers' Association as an authorized
information vendor for the purpose of displaying such rates) for a period equal
to such Interest Period; provided that, to the extent that an interest rate is
not ascertainable pursuant to the foregoing provisions of this definition the
"Eurodollar Rate" shall be the interest rate per annum determined by the
Administrative Agent to be the average of the rates per annum at which deposits
in Dollars are offered for such Interest Period to major banks in the London
interbank market in London, England at approximately 11:00 a.m. (London time) on
the date which is two Business Days prior to the beginning of such Interest
Period by (ii) a percentage equal to 100% minus the stated maximum rate of all
reserve requirements (including any marginal, emergency, supplemental, special
or other reserves) applicable on such Interest Rate Determination Date to any
member bank of the Federal Reserve System in respect of "Eurocurrency
liabilities" as defined in Regulation D (or any successor category of
liabilities under Regulation D). Each determination by the Administrative Agent
pursuant to this definition shall be conclusive absent manifest error.
"EURODOLLAR RATE LOANS" means Loans bearing interest at rates
determined by reference to the Eurodollar Rate as provided in subsection 2.2A.
"EVENT OF DEFAULT" means each of the events set forth in Section
8.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
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"EXISTING CREDIT AGREEMENT" means that certain Credit Agreement
dated as of January 22, 1999, between Company, the lenders named therein and
First Union National Bank, as Administrative Agent, as amended or supplemented
prior to the Closing Date.
"EXISTING LETTERS OF CREDIT" means the Letters of Credit listed
on Schedule 7.4 annexed hereto and identified as "Existing Letters of Credit".
"FACILITIES" means any and all real property (including all
buildings, fixtures or other improvements located thereon) now, hereafter or
heretofore owned, leased, operated or used by Company or any of its Subsidiaries
or any of their respective predecessors or Affiliates.
"FCC" means the Federal Communications Commission and any
successor governmental agency performing functions similar to those performed by
the Federal Communications Commission on the date hereof.
"FCC LICENSE" means any of the licenses, permits, certificates
of compliance, franchises, approvals or other authorizations issued by the FCC
relating to the Stations.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a
fluctuating interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by Administrative Agent from three Federal funds
brokers of recognized standing selected by Administrative Agent.
"FINAL ORDER" means, as of any date of determination with
respect to any written action or consent by the FCC, such written action or
consent which shall have been obtained and (i) which shall not have been
reversed, stayed, enjoined, annulled or suspended and (ii) for which the time
for filing a request for administrative or judicial relief or for instituting
administrative review thereof sua sponte, shall have expired without any such
filing having been made or notice of such review having been issued, or, in the
event of such filing or review sua sponte, such filing or review sua sponte
shall have been disposed of favorably to confirmation of such written action or
the grant of such consent and the time for seeking further relief with respect
thereto shall have expired without any request for such further relief having
been filed.
"FINANCIAL PLAN" has the meaning assigned to that term in
subsection 6.1(xii).
"FIRST PRIORITY" means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document, that (i) such
Lien is perfected and has priority over any other Lien on such Collateral and
(ii) such Lien is the only Lien (other than Liens permitted pursuant to
subsection 7.2) to which such Collateral is subject.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
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"FISCAL YEAR" means the fiscal year of Company and its
Subsidiaries ending on December 31 of each calendar year.
"FLOOD HAZARD PROPERTY" means a Post-Closing Date Mortgaged
Property or an Additional Mortgaged Property located in an area designated by
the Federal Emergency Management Agency as having special flood or mud slide
hazards.
"FOREIGN PLEDGE AGREEMENT" means each pledge agreement or
similar instrument governed by the laws of a country other than the United
States, executed on the Closing Date or from time to time thereafter in
accordance with subsection 6.8 by Company or any Domestic Subsidiary that owns
capital stock of one or more Foreign Subsidiaries organized in such country, in
form and substance satisfactory to Administrative Agent, as such Foreign Pledge
Agreement may be amended, supplemented or otherwise modified from time to time.
"FOREIGN SUBSIDIARY" means any Subsidiary of Company that is not
a Domestic Subsidiary.
"FUND" means any Person (other than a natural Person) that is
(or will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business.
"FUNDED DEBT", as applied to any Person, means all Indebtedness
of that Person (including any current portions thereof) which by its terms or by
the terms of any instrument or agreement relating thereto matures more than one
year from, or is directly renewable or extendable at the option of that Person
to a date more than one year from (including an option of that Person under a
revolving credit or similar agreement obligating the lender or lenders to extend
credit over a period of one year or more from), the date of the creation
thereof.
"FUNDING AND PAYMENT OFFICE" means (i) the office of
Administrative Agent and Swing Line Lender located at Eleven Madison Avenue, New
York, New York or (ii) such other office of Administrative Agent and Swing Line
Lender as may from time to time hereafter be designated as such in a written
notice delivered by Administrative Agent and Swing Line Lender to Company and
each Lender.
"FUNDING DATE" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on the application
thereof set forth in subsection 1.2, generally accepted accounting principles
set forth in opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, in each case as the same are applicable to the
circumstances as of the date of determination.
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"GOVERNING BODY" means the board of directors or other body
having the power to direct or cause the direction of the management and policies
of a Person that is a corporation, partnership, trust or limited liability
company.
"GOVERNMENT AUTHORITY" means any political subdivision or
department thereof, any other governmental or regulatory body, commission,
central bank, board, bureau, organ or instrumentality or any court, in each case
whether federal, state, local or foreign.
"GOVERNMENTAL AUTHORIZATION" means any permit, license,
registration, authorization, plan, directive, consent, order or consent decree
of or from, or notice to, any Government Authority.
"GRANTING LENDER" has the meaning specified in subsection
10.1B(iv).
"GUARANTIES" means the Subsidiary Guaranty.
"GULFSTREAM LEASE" means that certain Master Equipment Lease
Agreement dated as of August 16, 1999 between TC Aviation, Inc., as lessee, and
General Electric Capital Corporation (as successor to First Security Bank
National Association), as lessor, with respect to the lease of a Gulfstream
Aerospace G and certain related equipment, and all other agreements executed in
connection therewith, as modified, amended or supplemented from time to time.
"HAZARDOUS MATERIALS" means (i) any chemical, material or
substance at any time defined as or included in the definition of "hazardous
substances", "hazardous wastes", "hazardous materials", "extremely hazardous
waste", "acutely hazardous waste", "radioactive waste", "biohazardous waste",
"pollutant", "toxic pollutant", "contaminant", "restricted hazardous waste",
"infectious waste", "toxic substances", or any other term or expression intended
to define, list or classify substances by reason of properties harmful to
health, safety or the indoor or outdoor environment (including harmful
properties such as ignitability, corrosivity, reactivity, carcinogenicity,
toxicity, reproductive toxicity, "TCLP toxicity" or "EP toxicity" or words of
similar import under any applicable Environmental Laws); (ii) any oil,
petroleum, petroleum fraction or petroleum derived substance; (iii) any drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources;
(iv) any flammable substances or explosives; (v) any radioactive materials; (vi)
any asbestos-containing materials; (vii) urea formaldehyde foam insulation;
(viii) electrical equipment which contains any oil or dielectric fluid
containing polychlorinated biphenyls; (ix) pesticides; and (x) any other
chemical, material or substance, exposure to which is prohibited, limited or
regulated by any Government Authority or which may or could pose a hazard to the
health and safety of the owners, occupants or any Persons in the vicinity of any
Facility or to the indoor or outdoor environment.
"HAZARDOUS MATERIALS ACTIVITY" means any past, current, proposed
or threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment,
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abatement, removal, remediation, disposal, disposition or handling of any
Hazardous Materials, and any corrective action or response action with respect
to any of the foregoing.
"HEDGE AGREEMENT" means an Interest Rate Agreement or a Currency
Agreement designed to hedge against fluctuations in interest rates or currency
values, respectively.
"INDEBTEDNESS", as applied to any Person, means (i) all
indebtedness for borrowed money, (ii) that portion of obligations with respect
to Capital Leases that is properly classified as a liability on a balance sheet
in conformity with GAAP, (iii) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed money,
(iv) any obligation owed for all or any part of the deferred purchase price of
property or services (excluding any such obligations incurred under ERISA),
which purchase price is (a) due more than six months from the date of incurrence
of the obligation in respect thereof or (b) evidenced by a note or similar
written instrument, (v) all indebtedness secured by any Lien on any property or
asset owned or held by that Person regardless of whether the indebtedness
secured thereby shall have been assumed by that Person or is nonrecourse to the
credit of that Person, and (vi) all reimbursement obligations of such Person
with respect to surety bonds, letters of credit and bankers' acceptances (in
each case, whether or not drawn or matured and in the stated amount thereof) but
in all events specifically excluding any obligations under the Operating Leases
described in Schedule 1.1B annexed hereto and any indebtedness incurred in
connection with the financing of insurance premiums up to an aggregate of
$1,000,000 in each Fiscal Year. Obligations under Interest Rate Agreements and
Currency Agreements constitute (1) in the case of Hedge Agreements, Contingent
Obligations, and (2) in all other cases, Investments, and in neither case
constitute Indebtedness.
"INDEMNITEE" has the meaning assigned to that term in subsection
10.3.
"INTELLECTUAL PROPERTY" means all patents, trademarks,
tradenames, copyrights, technology, software, know-how and processes used in or
necessary for the conduct of the business of Company and its Subsidiaries as
currently conducted that are material to the condition (financial or otherwise),
business or operations of Company and its Subsidiaries, taken as a whole.
"INTEREST PAYMENT DATE" means (i) with respect to any Base Rate
Loan, the last Business Day of each March, June, September and December of each
year, commencing on the first such date to occur after the Closing Date, and
(ii) with respect to any Eurodollar Rate Loan, the last day of each Interest
Period applicable to such Loan; provided that in the case of each Interest
Period of longer than three months "Interest Payment Date" shall also include
each date that is three months, or a multiple thereof, after the commencement of
such Interest Period.
"INTEREST PERIOD" has the meaning assigned to that term in
subsection 2.2B.
"INTEREST RATE AGREEMENT" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or other
similar agreement or arrangement to which Company or any of its Subsidiaries is
a party.
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"INTEREST RATE DETERMINATION DATE", with respect to any Interest
Period, means the second Business Day prior to the first day of such Interest
Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986,
as amended to the date hereof and from time to time hereafter, and any successor
statute.
"INVESTMENT" means (i) any direct or indirect purchase or other
acquisition by Company or any of its Subsidiaries of, or of a beneficial
interest in, any Securities of or other debt or equity interests in any other
Person (including any Subsidiary of Company), (ii) any direct or indirect
redemption, retirement, purchase or other acquisition for value, by any
Subsidiary of Company from any Person other than Company or any of its
Subsidiary Guarantors, of any equity Securities of or other equity interests in
such Subsidiary, (iii) any direct or indirect loan, advance (other than advances
to employees for moving, entertainment and travel expenses, drawing accounts and
similar expenditures in the ordinary course of business) or capital contribution
by Company or any of its Subsidiaries to any other Person, including all
indebtedness and accounts receivable from that other Person that are not current
assets or did not arise from sales to that other Person in the ordinary course
of business, or (iv) Interest Rate Agreements or Currency Agreements not
constituting Hedge Agreements. The amount of any Investment shall be the
original cost of such Investment plus the cost of all additions thereto, without
any adjustments for increases or decreases in value, or write-ups, write-downs
or write-offs with respect to such Investment (other than adjustments for the
repayment of, or the refund of capital with respect to, the original principal
amount of any such Investment).
"IP COLLATERAL" means, collectively, the Intellectual Property
that constitutes Collateral under the Security Agreement.
"ISSUING LENDER" means, with respect to any Letter of Credit,
the Revolving Lender that agrees or is otherwise obligated to issue such Letter
of Credit, determined as provided in subsection 3.1B(ii).
"JOINT VENTURE" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal form;
provided that in no event shall any corporate Subsidiary of any Person be
considered to be a Joint Venture to which such Person is a party.
"KEYCORP LEASE" means that certain Master Equipment Lease
Agreement dated as of May 30, 2000 between AK Mobile Television, Inc., as
lessee, and KeyCorp Leasing, as lessor, with respect to the lease of a HDTV
mobile production facility and other related equipment, and all other agreements
executed in connection therewith, as modified, amended or supplemented from time
to time.
"LANDLORD CONSENT AND ESTOPPEL" means, with respect to any
Leasehold Property, a letter, certificate or other instrument in writing from
the lessor under the related lease, satisfactory in form and substance to
Administrative Agent, pursuant to which such lessor agrees, for the benefit of
Administrative Agent and the Lenders, (i) that without any further consent of
such lessor or any further action on the part of the Loan Party holding such
Leasehold
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Property, such Leasehold Property may be encumbered pursuant to a Mortgage and
may be assigned to the purchaser at a foreclosure sale or in a transfer in lieu
of such a sale (and to a subsequent third party assignee if Administrative
Agent, any Lender, or an Affiliate of either so acquires such Leasehold
Property), (ii) that such lessor shall not terminate such lease as a result of a
default by such Loan Party thereunder without first giving Administrative Agent
notice of such default and at least 60 days (or, if such default cannot
reasonably be cured by Administrative Agent within such period, such longer
period as may reasonably be required) to cure such default, and (iii) to such
other matters relating to such Leasehold Property as Administrative Agent may
reasonably request.
"LEASEHOLD PROPERTY" means any leasehold interest of any Loan
Party as lessee under any lease of real property, other than any such leasehold
interest designated from time to time by Administrative Agent in its sole
discretion as not being required to be included in the Collateral.
"LENDER" and "LENDERS" means the Persons identified as "Lenders"
and listed on the signature pages of this Agreement, together with their
successors and permitted assigns pursuant to subsection 10.1, and the term
"Lenders" shall include Swing Line Lender unless the context otherwise requires;
provided that the term "Lenders", when used in the context of a particular
Commitment, shall mean Lenders having that Commitment.
"LETTER OF CREDIT" or "LETTERS OF CREDIT" means Commercial
Letters of Credit and Standby Letters of Credit issued or to be issued by
Issuing Lenders for the account of Company pursuant to subsection 3.1.
"LETTER OF CREDIT USAGE" means, as at any date of determination,
the sum of (i) the maximum aggregate amount which is or at any time thereafter
may become available for drawing under all Letters of Credit then outstanding
plus (ii) the aggregate amount of all drawings under Letters of Credit honored
by Issuing Lenders and not theretofore reimbursed out of the proceeds of
Revolving Loans pursuant to subsection 3.3B or otherwise reimbursed by Company.
"LICENSE SUB" means any special purpose Subsidiary of a Loan
Party which operates one or more Stations which is created or acquired to hold
the FCC Licenses for such Station or Stations and "LICENSE SUBS" means all such
License Subs, collectively.
"LIEN" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing.
"LMA" means any joint sales agreement, advertising sales
agreement, time brokerage agreement, local marketing agreement or management
services agreement or similar arrangement with respect to the management or
marketing of any radio or television station or any other broadcast properties.
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"LMA OBLIGATIONS" means all monetary obligations of Company or
any Subsidiary to any other Person with respect to management fees, other
compensation or other required payments (but specifically excluding any payments
made in connection with the Company's or any Subsidiary's exercise of any
purchase option contained in any LMA) from time to time owed pursuant to LMA's,
whether matured or unmatured, absolute or contingent.
"LOAN" or "LOANS" means one or more of the Term Loans, Revolving
Loans or Swing Line Loans or any combination thereof.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Letters of
Credit (and any applications for, or reimbursement agreements or other documents
or certificates executed by Company in favor of an Issuing Lender relating to,
the Letters of Credit), the Guaranties, the Collateral Documents and Hedge
Agreements between Company, any Subsidiaries and any Lender.
"LOAN PARTY" means each of Company and any of Company's
Subsidiaries from time to time executing a Loan Document, and "LOAN PARTIES"
means all such Persons, collectively.
"MARGIN STOCK" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve System as in
effect from time to time.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse effect
upon the business, operations, properties, assets, condition (financial or
otherwise) or prospects of Company or any of its Subsidiaries on a consolidated
basis or (ii) the impairment in any material respect of the ability of any Loan
Party to perform, or of Administrative Agent or Lenders to enforce, the
Obligations.
"MATERIAL CONTRACT" means any "material contract" (within the
meaning of Item 601(b)(10) of Regulation S-K under the Exchange Act) to which
Company or any of its Subsidiaries is a party other than the Loan Documents.
"MATERIAL LEASEHOLD PROPERTY" means a Leasehold Property (i)
reasonably determined by Administrative Agent to be of material value as
Collateral or of material importance to the operations of Company or any of its
Subsidiaries or (ii) at which an antenna or tower is located.
"MORTGAGE" means (i) a security instrument (whether designated
as a deed of trust or a mortgage or by any similar title) executed and delivered
by any Loan Party, substantially in the form of Exhibit XV(A) or Exhibit XV(B)
annexed hereto, together with such changes thereto as may be required by
Administrative Agent in its sole discretion or recommended by Administrative
Agent's local counsel based on local laws or customary local mortgage or deed of
trust practices, or (ii) at Administrative Agent's option, in the case of an
Additional Mortgaged Property, an amendment to an existing Mortgage, in form
satisfactory to Administrative Agent, adding such Additional Mortgaged Property
to the Real Property Assets encumbered by such existing Mortgage, in either case
as such security instrument or amendment
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may be amended, supplemented or otherwise modified from time to time.
"MORTGAGES" means all such instruments, including the Post-Closing Date
Mortgages and any Additional Mortgages, collectively.
"MULTIEMPLOYER PLAN" means any Employee Benefit Plan that is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"NET ASSET SALE PROCEEDS", with respect to any Asset Sale, means
Cash payments (including any Cash received by way of deferred payment pursuant
to, or by monetization of, a note receivable or otherwise, but only as and when
so received) received from such Asset Sale, net of any bona fide direct costs
incurred in connection with such Asset Sale, including (i) income taxes
reasonably estimated to be actually payable within two years of the date of such
Asset Sale as a result of any gain recognized in connection with such Asset Sale
and (ii) payment of the outstanding principal amount of, premium or penalty, if
any, and interest on any Indebtedness (other than the Loans) that is secured by
a Lien on the stock or assets in question and that is required to be repaid
under the terms thereof as a result of such Asset Sale; provided, however, that
Net Asset Sale proceeds shall not include any Cash payments received from any
Asset Sale by a Foreign Subsidiary unless (A) such proceeds may be repatriated
(by reason of a repayment of an intercompany note or otherwise) to the United
States without (in the reasonable judgment of Company) resulting in a material
tax liability to Company or (B) such proceeds are in fact repatriated by reason
of a voluntary action by the Company.
"NET INSURANCE/CONDEMNATION PROCEEDS" means any Cash payments or
proceeds received by Company or any of its Subsidiaries (i) under any business
interruption or casualty insurance policy in respect of a covered loss
thereunder in excess of $250,000 per occurrence or (ii) as a result of the
taking of any assets of Company or any of its Subsidiaries by any Person
pursuant to the power of eminent domain, condemnation or otherwise, or pursuant
to a sale of any such assets to a purchaser with such power under threat of such
a taking, excluding any such payments or proceeds related to billboards or
similar outdoor advertising structures up to a maximum aggregate amount in any
Fiscal Year of $2,000,000 or of $10,000,000 during the term of this Agreement,
in each case net of any actual and reasonable documented costs incurred by
Company or any of its Subsidiaries in connection with the adjustment or
settlement of any claims of Company or such Subsidiary in respect thereof.
"NET SECURITIES PROCEEDS" means the cash proceeds (net of
underwriting discounts and commissions and other reasonable costs and expenses
associated therewith, including reasonable legal fees and expenses) from the (i)
issuance of Capital Stock of or incurrence of Indebtedness by Company or any of
its Subsidiaries and (ii) capital contributions made by a holder of Capital
Stock of Company.
"NON-US LENDER" has the meaning assigned to that term in
subsection 2.7B(iii)(a).
"NOTES" means one or more of the Term Notes, Revolving Notes or
Swing Line Note or any combination thereof.
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"NOTICE OF BORROWING" means a notice substantially in the form
of Exhibit I annexed hereto.
"NOTICE OF CONVERSION/CONTINUATION" means a notice substantially
in the form of Exhibit II annexed hereto.
"OBLIGATIONS" means all obligations of every nature of each Loan
Party from time to time owed to Administrative Agent, Lenders or any of them
under the Loan Documents, whether for principal, interest, reimbursement of
amounts drawn under Letters of Credit, fees, expenses, indemnification or
otherwise.
"OFFICER" means the president, chief executive officer, a vice
president, chief financial officer, treasurer, general partner (if an
individual), managing member (if an individual) or other individual appointed by
the Governing Body or the Organizational Documents of a corporation,
partnership, trust or limited liability company to serve in a similar capacity
as the foregoing.
"OFFICER'S CERTIFICATE", as applied to any Person that is a
corporation, partnership, trust or limited liability company, means a
certificate executed on behalf of such Person by one or more Officers of such
Person or one or more Officers of a general partner or a managing member if such
general partner or managing member is a corporation, partnership, trust or
limited liability company.
"OPERATING LEASE", as applied to any Person, means any lease
(including leases that may be terminated by the lessee at any time) of any
property (whether real, personal or mixed) that is not a Capital Lease other
than any such lease under which that Person is the lessor.
"ORGANIZATIONAL DOCUMENTS" means the documents (including
Bylaws, if applicable) pursuant to which a Person that is a corporation,
partnership, trust or limited liability company is organized.
"PARTICIPANT" means a purchaser of a participation in the rights
and obligations under this Agreement pursuant to subsection 10.1C.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
"PERMITTED ENCUMBRANCES" means the following types of Liens
(excluding any such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or by ERISA, any such Lien relating to or imposed in
connection with any Environmental Claim, and any such Lien expressly prohibited
by any applicable terms of any of the Loan Documents):
(i) Liens for taxes, assessments or governmental charges or
claims the payment of which is not, at the time, required by
subsection 6.3;
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(ii) statutory Liens of landlords, statutory Liens and rights of
set-off of banks, statutory Liens of carriers, warehousemen,
mechanics, repairmen, workmen and materialmen, and other Liens
imposed by law, in each case incurred in the ordinary course of
business (a) for amounts not yet overdue or (b) for amounts that
are overdue and that (in the case of any such amounts overdue
for a period in excess of 10 days) are being contested in good
faith by appropriate proceedings, so long as (1) such reserves
or other appropriate provisions, if any, as shall be required by
GAAP shall have been made for any such contested amounts, and
(2) in the case of a Lien with respect to any portion of the
Collateral, such contest proceedings conclusively operate to
stay the sale of any portion of the Collateral on account of
such Lien;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, trade contracts,
performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of
borrowed money), so long as no foreclosure, sale or similar
proceedings have been commenced with respect to any portion of
the Collateral on account thereof;
(iv) any attachment or judgment Lien not constituting an Event
of Default under subsection 8.8;
(v) leases or subleases granted to third parties in accordance
with any applicable terms of the Collateral Documents and not
interfering in any material respect with the ordinary conduct of
the business of Company or any of its Subsidiaries or resulting
in a diminution in the value of the Collateral, taken as a
whole, in any material respect as security for the Obligations;
(vi) easements, rights-of-way, restrictions, encroachments, and
other minor defects or irregularities in title, in each case
which do not and will not interfere in any material respect with
the ordinary conduct of the business of Company or any of its
Subsidiaries or result in a diminution in the value of the
Collateral, taken as a whole, in any material respect as
security for the Obligations;
(vii) any (a) interest or title of a lessor or sublessor under
any lease not prohibited by this Agreement, (b) restriction or
encumbrance that the interest or title of such lessor or
sublessor may be subject to, or (c) subordination of the
interest of the lessee or sublessee under such lease to any
restriction or encumbrance referred to in the preceding clause
(b), so long as the holder of such restriction or encumbrance
agrees to recognize the rights of such lessee or sublessee under
such lease;
(viii) Liens arising from filing UCC financing statements
relating solely to leases not prohibited by this Agreement;
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(ix) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in
connection with the importation of goods;
(x) any zoning or similar law or right reserved to or vested in
any governmental office or agency to control or regulate the use
of any real property;
(xi) Liens securing obligations (other than obligations
representing Indebtedness for borrowed money) under operating,
reciprocal easement or similar agreements entered into in the
ordinary course of business of Company and its Subsidiaries; and
(xii) licenses of Intellectual Property granted by Company or
any of its Subsidiaries in the ordinary course of business and
not interfering in any material respect with the ordinary
conduct of the business of Company or such Subsidiary.
"PERSON" means and includes natural persons, corporations,
limited partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments (whether federal,
state or local, domestic or foreign, and including political subdivisions
thereof) and agencies or other administrative or regulatory bodies thereof.
"POST-CLOSING DATE MORTGAGED PROPERTY" has the meaning assigned
to that term in subsection 6.12.
"POST-CLOSING DATE MORTGAGES" has the meaning assigned to that
term in subsection 6.12.
"POTENTIAL EVENT OF DEFAULT" means a condition or event that,
after notice or lapse of any applicable cure period or both, would constitute an
Event of Default.
"PRIME RATE" means the rate that CSFB announces from time to
time as its prime lending rate, as in effect from time to time. The Prime Rate
is a reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. CSFB or any other Lender may make commercial
loans or other loans at rates of interest at, above or below the Prime Rate.
"PROCEEDINGS" means any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration.
"PRO FORMA BASIS" means the compliance of Company with the
financial covenants set forth in subsection 7.6 as of the last day of the four
Fiscal Quarter period for which such determination is being made (the
"COMPLIANCE PERIOD"), after giving effect on a pro forma basis to any permitted
acquisitions made during such Compliance Period and any dispositions
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made during such Compliance Period, other than sales of inventory in the
ordinary course of business and dispositions of obsolete equipment, on the
following basis:
(i) any Indebtedness incurred or assumed by Company or any of
its Subsidiaries in connection with such permitted acquisitions and any
Indebtedness repaid in connection with such permitted acquisitions or
dispositions shall be deemed to have been incurred or repaid,
respectively, as of the first day of the Compliance Period;
(ii) if such Indebtedness incurred or assumed by Company or any
of its Subsidiaries in connection with such permitted acquisitions has a
floating or formula rate, then the rate of interest for such
Indebtedness for the applicable period shall be computed as if the rate
in effect for such Indebtedness on the relevant measurement date had
been the applicable rate for the entire applicable period;
(iii) income statement items (whether positive or negative)
attributable to the property or business acquired or disposed of in such
permitted acquisitions or dispositions shall be included as if such
acquisitions or dispositions took place on the first day of such
Compliance Period on a pro forma basis; and
(iv) any historical extraordinary non-recurring costs or
expenses or other verifiable costs or expenses that will not continue
after the acquisition or disposition date may be eliminated and other
expenses and cost reductions may be reflected on a basis consistent with
Regulation S-X promulgated by the Securities and Exchange Commission.
"PRO RATA SHARE" means (i) with respect to all payments,
computations and other matters relating to the Term Loan Commitment or the Term
Loan of any Lender, the percentage obtained by dividing (x) the Term Loan
Exposure of that Lender by (y) the aggregate Term Loan Exposure of all Lenders,
(ii) with respect to all payments, computations and other matters relating to
the Revolving Loan Commitment or the Revolving Loans of any Lender or any
Letters of Credit issued or participations therein purchased by any Lender or
any assignments of any Swing Line Loans purchased by any Lender, the percentage
obtained by dividing (x) the Revolving Loan Exposure of that Lender by (y) the
aggregate Revolving Loan Exposure of all Lenders, and (iii) for all other
purposes with respect to each Lender, the percentage obtained by dividing (x)
the sum of the Term Loan Exposure of that Lender plus the Revolving Loan
Exposure of that Lender by (y) the sum of the aggregate Term Loan Exposure of
all Lenders plus the aggregate Revolving Loan Exposure of all Lenders, in any
such case as the applicable percentage may be adjusted by assignments permitted
pursuant to subsection 10.1.
"PTO" means the United States Patent and Trademark Office or any
successor or substitute office in which filings are necessary or, in the opinion
of Administrative Agent, desirable in order to create or perfect Liens on any IP
Collateral.
"REAL PROPERTY ASSET" means, at any time of determination, any
interest then owned by any Loan Party in any real property, other than any fee
or leasehold interest in real
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property which is primarily used for the placement of billboards or similar
outdoor advertising structures.
"RECORDED LEASEHOLD INTEREST" means a Leasehold Property with
respect to which a Record Document (as hereinafter defined) has been recorded in
all places necessary or desirable, in Administrative Agent's reasonable
judgment, to give constructive notice of such Leasehold Property to third-party
purchasers and encumbrancers of the affected real property. For purposes of this
definition, the term "RECORD DOCUMENT" means, with respect to any Leasehold
Property, (a) the lease evidencing such Leasehold Property or a memorandum
thereof, executed and acknowledged by the owner of the affected real property,
as lessor, or (b) if such Leasehold Property was acquired or subleased from the
holder of a Recorded Leasehold Interest, the applicable assignment or sublease
document, executed and acknowledged by such holder, in each case in form
sufficient to give such constructive notice upon recordation and otherwise in
form reasonably satisfactory to Administrative Agent.
"REFUNDED SWING LINE LOANS" has the meaning assigned to that
term in subsection 2.1A(iii).
"REGISTER" has the meaning assigned to that term in subsection
2.1D.
"REGULATION D" means Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"REIMBURSEMENT DATE" has the meaning assigned to that term in
subsection 3.3B.
"RELEASE" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of Hazardous Materials into the indoor or outdoor
environment (including the abandonment or disposal of any barrels, containers or
other closed receptacles containing any Hazardous Materials), including the
movement of any Hazardous Materials through the air, soil, surface water or
groundwater.
"REQUEST FOR ISSUANCE" means a request for an issuance of a
Letter of Credit substantially in the form of Exhibit III annexed hereto.
"REQUISITE CLASS LENDERS" means, at any time of determination
(i) for the Class of Lenders having Revolving Loan Exposure, Lenders having or
holding 50% or more of the aggregate Revolving Loan Exposure of all Lenders and
(ii) for the Class of Lenders having Term Loan Exposure, Lenders having or
holding more than 50% of the aggregate Term Loan Exposure of all Lenders.
"REQUISITE LENDERS" means Lenders having or holding more than
50% of the sum of the aggregate Term Loan Exposure of all Lenders plus the
aggregate Revolving Loan Exposure of all Lenders.
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"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of stock
of Company now or hereafter outstanding, except a dividend payable solely in
shares of that class of stock to the holders of that class, (ii) any repurchase,
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of stock
of Company now or hereafter outstanding, (iii) any payment made to retire, or to
obtain the surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of stock of Company now or hereafter outstanding,
and (iv) any payment or prepayment of principal of, premium, if any, or interest
on, or redemption, purchase, retirement, defeasance (including in-substance or
legal defeasance), sinking fund or similar payment with respect to, any
Subordinated Indebtedness.
"REVOLVING LENDER" means a Lender that has a Revolving Loan
Commitment and/or that has an outstanding Revolving Loan.
"REVOLVING LOAN COMMITMENT" means the commitment of a Revolving
Lender to make Revolving Loans to Company pursuant to subsection 2.1A(ii), and
"REVOLVING LOAN COMMITMENTS" means such commitments of all Revolving Lenders in
the aggregate.
"REVOLVING LOAN COMMITMENT TERMINATION DATE" means August 31,
2004.
"REVOLVING LOAN EXPOSURE", with respect to any Revolving Lender,
means, as of any date of determination (i) prior to the termination of the
Revolving Loan Commitments, that Lender's Revolving Loan Commitment, and (ii)
after the termination of the Revolving Loan Commitments, the sum of (a) the
aggregate outstanding principal amount of the Revolving Loans of that Lender
plus (b) in the event that Lender is an Issuing Lender, the aggregate Letter of
Credit Usage in respect of all Letters of Credit issued by that Lender (in each
case net of any participations purchased by other Lenders in such Letters of
Credit or in any unreimbursed drawings thereunder) plus (c) the aggregate amount
of all participations purchased by that Lender in any outstanding Letters of
Credit or any unreimbursed drawings under any Letters of Credit plus (d) in the
case of Swing Line Lender, the aggregate outstanding principal amount of all
Swing Line Loans (net of any assignments thereof purchased by other Revolving
Lenders) plus (e) the aggregate amount of all assignments purchased by that
Lender in any outstanding Swing Line Loans.
"REVOLVING LOANS" means the Loans made by Revolving Lenders to
Company pursuant to subsection 2.1A(ii).
"REVOLVING NOTES" means any promissory notes of Company issued
pursuant to subsection 2.1E to evidence the Revolving Loans of any Revolving
Lenders, substantially in the form of Exhibit VI annexed hereto, as they may be
amended, supplemented or otherwise modified from time to time.
"SECURITIES" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness,
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secured or unsecured, convertible, subordinated or otherwise, or in general any
instruments commonly known as "securities" or any certificates of interest,
shares or participations in temporary or interim certificates for the purchase
or acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing.
"SECURITIES ACCOUNTS" means, collectively, those securities
accounts into which an aggregate of $54,000,000 of Term Loan proceeds will be
deposited in escrow on the Closing Date, which proceeds will be held and
invested pursuant to the Securities Agreements.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"SECURITIES AGREEMENTS" means, collectively, those Securities
Account Control Agreements between Company, Administrative Agent and each of the
securities intermediaries signatory thereto, executed and delivered on the
Closing Date and substantially in the form of Exhibit IV annexed hereto, as such
Securities Agreements may thereafter be amended, supplemented or otherwise
modified from time to time.
"SECURITY AGREEMENT" means the Security Agreement executed and
delivered on the Closing Date and to be executed and delivered by additional
Subsidiaries of Company from time to time thereafter in accordance with
subsection 6.8, substantially in the form of Exhibit XIV annexed hereto, as such
Security Agreement may thereafter be amended, supplemented or otherwise modified
from time to time.
"SENIOR DEBT" means Consolidated Total Debt minus Subordinated
Indebtedness of Company and its Subsidiaries, determined on a consolidated basis
in accordance with GAAP.
"SPC" has the meaning assigned to such term in subsection
10.1B(iv).
"SOLVENT", with respect to any Person, means that as of the date
of determination both (i)(a) the then fair saleable value of the property of
such Person is (1) greater than the total amount of liabilities (including
contingent liabilities) of such Person and (2) not less than the amount that
will be required to pay the probable liabilities on such Person's then existing
debts as they become absolute and due considering all financing alternatives and
potential asset sales reasonably available to such Person; (b) such Person's
capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (c) such Person does not intend to
incur, or believe (nor should it reasonably believe) that it will incur, debts
beyond its ability to pay such debts as they become due; and (ii) such Person is
"solvent" within the meaning given that term and similar terms under applicable
laws relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
"STANDBY LETTER OF CREDIT" means any standby letter of credit or
similar instrument issued for the purpose of supporting (i) Indebtedness of
Company or any of its
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Subsidiaries in respect of industrial revenue or development bonds or
financings, (ii) workers' compensation liabilities of Company or any of its
Subsidiaries, (iii) the obligations of third party insurers of Company or any of
its Subsidiaries arising by virtue of the laws of any jurisdiction requiring
third party insurers, (iv) obligations with respect to Capital Leases or
Operating Leases of Company or any of its Subsidiaries, and (v) performance,
payment, deposit or surety obligations of Company or any of its Subsidiaries, in
any case if required by law or governmental rule or regulation or in accordance
with custom and practice in the industry.
"STATION" means each radio or television station owned and
operated by the Loan Parties, and each radio or television station hereafter
acquired by any Loan Party in accordance with this Agreement, and "STATIONS"
means all such Stations, collectively.
"SUBORDINATED INDEBTEDNESS" means (i) Company's 9.00% Senior
Subordinated Notes due 2009 and (ii) any Indebtedness of Company or any of its
Subsidiaries incurred from time to time and expressly subordinated in right of
payment to the Obligations.
"SUBSIDIARY", with respect to any Person, means any corporation,
partnership, trust, limited liability company, association, Joint Venture or
other business entity of which more than 50% of the total voting power of shares
of stock or other ownership interests entitled (without regard to the occurrence
of any contingency) to vote in the election of the members of the Governing Body
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person or a combination thereof.
"SUBSIDIARY GUARANTOR" means any wholly-owned Subsidiary of
Company that executes and delivers a counterpart of the Subsidiary Guaranty on
the Closing Date or from time to time thereafter pursuant to subsection 6.8.
"SUBSIDIARY GUARANTY" means the Subsidiary Guaranty executed and
delivered by existing wholly-owned Subsidiaries of Company on the Closing Date
and to be executed and delivered by additional wholly-owned Subsidiaries of
Company from time to time thereafter in accordance with subsection 6.8,
substantially in the form of Exhibit XIII annexed hereto, as such Subsidiary
Guaranty may hereafter be amended, supplemented or otherwise modified from time
to time.
"SUPPLEMENTAL COLLATERAL AGENT" has the meaning assigned to that
term in subsection 9.1B.
"SWING LINE LENDER" means CSFB, or any Person serving as a
successor Administrative Agent hereunder, in its capacity as Swing Line Lender
hereunder.
"SWING LINE LOAN COMMITMENT" means the commitment of Swing Line
Lender to make Swing Line Loans to Company pursuant to subsection 2.1A(iii).
"SWING LINE LOANS" means the Loans made by Swing Line Lender to
Company pursuant to subsection 2.1A(iii).
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"SWING LINE NOTE" means any promissory note of Company issued
pursuant to subsection 2.1E to evidence the Swing Line Loans of Swing Line
Lender, substantially in the form of Exhibit VII annexed hereto, as it may be
amended, supplemented or otherwise modified from time to time.
"SYNDICATION AGENT" has the meaning assigned to that term in the
introduction to this Agreement and also means and includes any successor
Syndication Agent appointed pursuant to subsection 9.5A.
"TAX" or "TAXES" means any present or future tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature and whatever called,
by whomsoever, on whomsoever and wherever imposed, levied, collected, withheld
or assessed, including interest, penalties, additions to tax and any similar
liabilities with respect thereto; except that, in the case of a Lender, there
shall be excluded taxes that are imposed on the overall net income or net
profits (including franchise taxes imposed in lieu thereof) by the United States
or by any other Government Authority under the laws of which the Lender is
organized or has its principal office or maintains its applicable lending
office.
"TERM LOAN COMMITMENT" means the commitment of a Lender to make
a Term Loan to Company pursuant to subsection 2.1A(i), and "TERM LOAN
COMMITMENTS" means such commitments of all Lenders in the aggregate.
"TERM LOAN EXPOSURE", with respect to any Lender, means, as of
any date of determination (i) prior to the funding of the Term Loans, that
Lender's Term Loan Commitment and (ii) after the funding of the Term Loans, the
outstanding principal amount of the Term Loan of that Lender.
"TERM LOAN MATURITY DATE" means August 31, 2006.
"TERM LOANS" means the Loans made by Lenders to Company pursuant
to subsection 2.1A(i).
"TERM NOTES" means any promissory notes of Company issued
pursuant to subsection 2.1E to evidence the Term Loans of any Lenders,
substantially in the form of Exhibit V annexed hereto, as they may be amended,
supplemented or otherwise modified from time to time.
"TOTAL UTILIZATION OF REVOLVING LOAN COMMITMENTS" means, as at
any date of determination, the sum of (i) the aggregate principal amount of all
outstanding Revolving Loans plus (ii) the aggregate principal amount of all
outstanding Swing Line Loans plus (iii) the Letter of Credit Usage.
"TRANSACTION COSTS" means the fees, costs and expenses payable
by Company on or before the Closing Date in connection with the transactions
contemplated by the Loan Documents.
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"TRANSFER FCC CONSENT" means the initial or any subsequent
written action or actions by the FCC approving any assignment of FCC Licenses
for the Stations from a Loan Party to a License Sub, as required hereunder.
"UCC" means the Uniform Commercial Code (or any similar or
equivalent legislation) as in effect in any applicable jurisdiction.
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF
CALCULATIONS UNDER AGREEMENT.
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements and other information
required to be delivered by Company to Lenders pursuant to clauses (ii), (iii)
and (xii) of subsection 6.1 shall be prepared in accordance with GAAP as in
effect at the time of such preparation (and delivered together with the
reconciliation statements provided for in subsection 6.1(v)). Calculations in
connection with the definitions, covenants and other provisions of this
Agreement shall utilize GAAP as in effect on the date of determination, applied
in a manner consistent with that used in preparing the financial statements
referred to in subsection 5.3. If at any time any change in GAAP would affect
the computation of any financial ratio or requirement set forth in any Loan
Document, and Company, Administrative Agent or Requisite Lenders shall so
request, Administrative Agent, Lenders and Company shall negotiate in good faith
to amend such ratio or requirement to preserve the original intent thereof in
light of such change in GAAP (subject to the approval of Requisite Lenders),
provided that, until so amended, such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and Company shall
provide to Administrative Agent and Lenders reconciliation statements provided
for in subsection 6.1(v).
1.3 OTHER DEFINITIONAL PROVISIONS AND RULES OF CONSTRUCTION.
A. Any of the terms defined herein may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference.
B. References to "Sections" and "subsections" shall be to
Sections and subsections, respectively, of this Agreement unless otherwise
specifically provided.
C. The use in any of the Loan Documents of the word "include" or
"including", when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar items or
matters, whether or not nonlimiting language (such as "without limitation" or
"but not limited to" or words of similar import) is used with reference thereto,
but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.
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SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 COMMITMENTS; MAKING OF LOANS; THE REGISTER; NOTES.
A. COMMITMENTS. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Company
herein set forth, each Lender hereby severally agrees to make the Loans as
described in subsections 2.1A(i) and 2.1A(ii) and Swing Line Lender hereby
agrees to make the Swing Line Loans as described in subsection 2.1A(iii).
(i) Term Loans. Each Lender that has a Term Loan Commitment
severally agrees to lend to Company on the Closing Date an amount not
exceeding its Pro Rata Share of the aggregate amount of the Term Loan
Commitments to be used for the purposes identified in subsection 2.5A.
The original amount of each Lender's Term Loan Commitment will be set
forth in an allocation letter delivered to such Lender by CSFB and the
aggregate amount of the Term Loan Commitments is $100,000,000; provided
that the Term Loan Commitments of Lenders shall be adjusted to give
effect to any assignments of the Term Loan Commitments pursuant to
subsection 10.1B. Each Lender's Term Loan Commitment shall expire
immediately and without further action on September 30, 2001 if the Term
Loans are not made on or before that date. Company may make only one
borrowing under the Term Loan Commitments. Amounts borrowed under this
subsection 2.1A(i) and subsequently repaid or prepaid may not be
reborrowed.
(ii) Revolving Loans. Each Revolving Lender severally agrees,
subject to the limitations set forth below with respect to the maximum
amount of Revolving Loans permitted to be outstanding from time to time,
to lend to Company from time to time during the period from the Closing
Date to but excluding the Revolving Loan Commitment Termination Date an
aggregate amount not exceeding its Pro Rata Share of the aggregate
amount of the Revolving Loan Commitments to be used for the purposes
identified in subsection 2.5B. The original amount of each Revolving
Lender's Revolving Loan Commitment will be set forth in an allocation
letter delivered to such Lender by CSFB and the aggregate original
amount of the Revolving Loan Commitments is $20,000,000; provided that
the Revolving Loan Commitments of Revolving Lenders shall be adjusted to
give effect to any assignments of the Revolving Loan Commitments
pursuant to subsection 10.1B and shall be reduced from time to time by
the amount of any reductions thereto made pursuant to subsection 2.4.
Each Revolving Lender's Revolving Loan Commitment shall expire on the
Revolving Loan Commitment Termination Date and all Revolving Loans and
all other amounts owed hereunder with respect to the Revolving Loans and
the Revolving Loan Commitments shall be paid in full no later than that
date; provided that each Revolving Lender's Revolving Loan Commitment
shall expire immediately and without further action on September 30,
2001 if the Term Loans are not made on or before that date. Amounts
borrowed under this subsection 2.1A(ii) may be repaid and reborrowed to
but excluding the Revolving Loan Commitment Termination Date.
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Anything contained in this Agreement to the contrary notwithstanding,
the Revolving Loans and the Revolving Loan Commitments shall be subject
to the limitation that in no event shall the Total Utilization of
Revolving Loan Commitments at any time exceed the Revolving Loan
Commitments then in effect.
(iii) Swing Line Loans.
(a) General Provisions. Swing Line Lender hereby agrees,
subject to the limitations set forth below with respect to the
maximum amount of Swing Line Loans permitted to be outstanding
from time to time, to make a portion of the Revolving Loan
Commitments available to Company from time to time during the
period from the Closing Date to but excluding the Revolving Loan
Commitment Termination Date by making Swing Line Loans to
Company in an aggregate amount not exceeding the amount of the
Swing Line Loan Commitment to be used for the purposes
identified in subsection 2.5B, notwithstanding the fact that
such Swing Line Loans, when aggregated with Swing Line Lender's
outstanding Revolving Loans and Swing Line Lender's Pro Rata
Share of the Letter of Credit Usage then in effect, may exceed
Swing Line Lender's Revolving Loan Commitment. The original
amount of the Swing Line Loan Commitment is $4,000,000; provided
that any reduction of the Revolving Loan Commitments made
pursuant to subsection 2.4 that reduces the aggregate Revolving
Loan Commitments to an amount less than the then current amount
of the Swing Line Loan Commitment shall result in an automatic
corresponding reduction of the Swing Line Loan Commitment to the
amount of the Revolving Loan Commitments, as so reduced, without
any further action on the part of Company, Administrative Agent
or Swing Line Lender. The Swing Line Loan Commitment shall
expire on the Revolving Loan Commitment Termination Date and all
Swing Line Loans and all other amounts owed hereunder with
respect to the Swing Line Loans shall be paid in full no later
than that date; provided that the Swing Line Loan Commitment
shall expire immediately and without further action on September
30, 2001 if the Term Loans are not made on or before that date.
Amounts borrowed under this subsection 2.1A(iii) may be repaid
and reborrowed to but excluding the Revolving Loan Commitment
Termination Date.
Anything contained in this Agreement to the contrary
notwithstanding, the Swing Line Loans and the Swing Line Loan
Commitment shall be subject to the limitation that in no event
shall the Total Utilization of Revolving Loan Commitments at any
time exceed the Revolving Loan Commitments then in effect.
(b) Swing Line Loan Prepayment with Proceeds of
Revolving Loans. With respect to any Swing Line Loans that have
not been voluntarily prepaid by Company pursuant to subsection
2.4B(i), Swing Line Lender may, at any time in its sole and
absolute discretion, deliver to Administrative Agent (with a
copy to Company), no later than 12:00 Noon (New York City time)
on the first Business Day in advance of the proposed Funding
Date, a notice requesting Revolving
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Lenders to make Revolving Loans that are Base Rate Loans on such
Funding Date in an amount equal to the amount of such Swing Line
Loans (the "REFUNDED SWING LINE LOANS") outstanding on the date
such notice is given. Company hereby authorizes the giving of
any such notice and the making of any such Revolving Loans.
Anything contained in this Agreement to the contrary
notwithstanding, (1) the proceeds of such Revolving Loans made
by Revolving Lenders other than Swing Line Lender shall be
immediately delivered by Administrative Agent to Swing Line
Lender (and not to Company) and applied to repay a corresponding
portion of the Refunded Swing Line Loans and (2) on the day such
Revolving Loans are made, Swing Line Lender's Pro Rata Share of
the Refunded Swing Line Loans shall be deemed to be paid with
the proceeds of a Revolving Loan made by Swing Line Lender, and
such portion of the Swing Line Loans deemed to be so paid shall
no longer be outstanding as Swing Line Loans but shall instead
constitute part of Swing Line Lender's outstanding Revolving
Loans. If any portion of any such amount paid (or deemed to be
paid) to Swing Line Lender should be recovered by or on behalf
of Company from Swing Line Lender in any bankruptcy proceeding,
in any assignment for the benefit of creditors or otherwise, the
loss of the amount so recovered shall be ratably shared among
all Lenders in the manner contemplated by subsection 10.5.
(c) Swing Line Loan Assignments. If for any reason (1)
Revolving Loans are not made upon the request of Swing Line
Lender as provided in the immediately preceding paragraph in an
amount sufficient to repay any amounts owed to Swing Line Lender
in respect of any outstanding Swing Line Loans or (2) the
Revolving Loan Commitments are terminated at a time when any
Swing Line Loans are outstanding, each Revolving Lender shall be
deemed to, and hereby agrees to, have purchased an assignment of
such outstanding Swing Line Loans in an amount equal to its Pro
Rata Share (calculated, in the case of the foregoing clause (2),
immediately prior to such termination of the Revolving Loan
Commitments) of the unpaid amount of such Swing Line Loans
together with accrued interest thereon. Upon one Business Day's
notice from Swing Line Lender, each Revolving Lender shall
deliver to Swing Line Lender an amount equal to its respective
assignment in same day funds at the Funding and Payment Office.
In order to further evidence such assignment (and without
prejudice to the effectiveness of the assignment provisions set
forth above), each Revolving Lender agrees to enter into an
Assignment Agreement at the request of Swing Line Lender in form
and substance reasonably satisfactory to Swing Line Lender. In
the event any Revolving Lender fails to make available to Swing
Line Lender the amount of such Revolving Lender's assignment as
provided in this paragraph, Swing Line Lender shall be entitled
to recover such amount on demand from such Revolving Lender
together with interest thereon at the Federal Funds Effective
Rate. In the event Swing Line Lender receives a payment of any
amount in which other Revolving Lenders have purchased
assignments as provided in this paragraph, Swing Line Lender
shall promptly distribute to each such other Revolving Lender
its Pro Rata Share of such payment.
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(d) Revolving Lenders' Obligations. Anything contained
herein to the contrary notwithstanding, each Revolving Lender's
obligation to make Revolving Loans for the purpose of repaying
any Refunded Swing Line Loans pursuant to subsection
2.1A(iii)(b) and each Revolving Lender's obligation to purchase
an assignment of any unpaid Swing Line Loans pursuant to the
immediately preceding paragraph shall be absolute and
unconditional and shall not be affected by any circumstance,
including (1) any set-off, counterclaim, recoupment, defense or
other right which such Revolving Lender may have against Swing
Line Lender, Company or any other Person for any reason
whatsoever; (2) the occurrence or continuation of an Event of
Default or a Potential Event of Default; (3) any adverse change
in the business, operations, properties, assets, condition
(financial or otherwise) or prospects of Company or any of its
Subsidiaries; (4) any breach of this Agreement or any other Loan
Document by any party thereto; or (5) any other circumstance,
happening or event whatsoever, whether or not similar to any of
the foregoing; provided that such obligations of each Revolving
Lender are subject to the condition that (x) Swing Line Lender
believed in good faith that all conditions under Section 4 to
the making of the applicable Refunded Swing Line Loans or other
unpaid Swing Line Loans, as the case may be, were satisfied at
the time such Refunded Swing Line Loans or unpaid Swing Line
Loans were made or (y) the satisfaction of any such condition
not satisfied had been waived in accordance with subsection 10.6
prior to or at the time such Refunded Swing Line Loans or other
unpaid Swing Line Loans were made.
B. BORROWING MECHANICS. Term Loans or Revolving Loans made on
any Funding Date (other than Revolving Loans made pursuant to a request by Swing
Line Lender pursuant to subsection 2.1A(iii) or Revolving Loans made pursuant to
subsection 3.3B) shall be in an aggregate minimum amount of $2,000,000 and
multiples of $500,000 in excess of that amount; provided that Term Loans or
Revolving Loans made on any Funding Date as Eurodollar Rate Loans shall be in an
aggregate minimum amount of $5,000,000 and multiples of $1,000,000 in excess of
that amount. Swing Line Loans made on any Funding Date shall be in an aggregate
minimum amount of $1,000,000 and multiples of $500,000 in excess of that amount.
Whenever Company desires that Lenders make Term Loans or Revolving Loans it
shall deliver to Administrative Agent a Notice of Borrowing no later than 12:00
Noon (New York City time) at least three Business Days in advance of the
proposed Funding Date (in the case of a Eurodollar Rate Loan) or at least one
Business Day in advance of the proposed Funding Date (in the case of a Base Rate
Loan). Whenever Company desires that Swing Line Lender make a Swing Line Loan,
it shall deliver to Administrative Agent a Notice of Borrowing no later than
12:00 Noon (New York City time) on the proposed Funding Date. Term Loans and
Revolving Loans may be continued as or converted into Base Rate Loans and
Eurodollar Rate Loans in the manner provided in subsection 2.2D. In lieu of
delivering a Notice of Borrowing, Company may give Administrative Agent
telephonic notice by the required time of any proposed borrowing under this
subsection 2.1B; provided that such notice shall be promptly confirmed in
writing by delivery of a Notice of Borrowing to Administrative Agent on or
before the applicable Funding Date.
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Neither Administrative Agent nor any Lender shall incur any
liability to Company in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by an Officer or
other person authorized to borrow on behalf of Company or for otherwise acting
in good faith under this subsection 2.1B or under subsection 2.2D, and upon
funding of Loans by Lenders, and upon conversion or continuation of the
applicable basis for determining the interest rate with respect to any Loans
pursuant to subsection 2.2D, in each case in accordance with this Agreement,
pursuant to any such telephonic notice Company shall have effected Loans or a
conversion or continuation, as the case may be, hereunder.
Company shall notify Administrative Agent prior to the funding
of any Loans in the event that any of the matters to which Company is required
to certify in the applicable Notice of Borrowing is no longer true and correct
as of the applicable Funding Date, and the acceptance by Company of the proceeds
of any Loans shall constitute a re-certification by Company, as of the
applicable Funding Date, as to the matters to which Company is required to
certify in the applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G,
a Notice of Borrowing for, or a Notice of Conversion/Continuation for conversion
to, or continuation of, a Eurodollar Rate Loan (or telephonic notice in lieu
thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and Company shall be bound to make a borrowing or to effect
a conversion or continuation in accordance therewith.
C. DISBURSEMENT OF FUNDS. All Term Loans and Revolving Loans
under this Agreement shall be made by Lenders simultaneously and proportionately
to their respective Pro Rata Shares, it being understood that neither
Administrative Agent nor any Lender shall be responsible for any default by any
other Lender in that other Lender's obligation to make a Loan requested
hereunder nor shall the Commitment of any Lender to make the particular type of
Loan requested be increased or decreased as a result of a default by any other
Lender in that other Lender's obligation to make a Loan requested hereunder.
Promptly after receipt by Administrative Agent of a Notice of Borrowing pursuant
to subsection 2.1B (or telephonic notice in lieu thereof), Administrative Agent
shall notify each Lender for that type of Loan or Swing Line Lender, as the case
may be, of the proposed borrowing. Each such Lender shall make the amount of its
Loan available to Administrative Agent at the Funding and Payment Office not
later than 2:00 P.M. (New York City time) on the applicable Funding Date in same
day funds in Dollars. Except as provided in subsection 2.1A(iii) or subsection
3.3B with respect to Revolving Loans used to repay Refunded Swing Line Loans or
to reimburse any Issuing Lender for the amount of a drawing under a Letter of
Credit issued by it, upon satisfaction or waiver of the conditions precedent
specified in subsections 4.1 (in the case of Loans made on the Closing Date) and
4.2 (in the case of all Loans), Administrative Agent shall make the proceeds of
such Loans, and Swing Line Lender shall make the proceeds of such Swing Line
Loans, available to Company on the applicable Funding Date in same day funds in
Dollars.
Unless Administrative Agent shall have been notified by any
Lender prior to a Funding Date for any Loans that such Lender does not intend to
make available to Administrative Agent the amount of such Lender's Loan
requested on such Funding Date,
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Administrative Agent may assume that such Lender has made such amount available
to Administrative Agent on such Funding Date and Administrative Agent may, in
its sole discretion, but shall not be obligated to, make available to Company a
corresponding amount on such Funding Date. If such corresponding amount is not
in fact made available to Administrative Agent by such Lender, Administrative
Agent shall be entitled to recover such corresponding amount on demand from such
Lender together with interest thereon, for each day from such Funding Date until
the date such amount is paid to Administrative Agent, at the Federal Funds
Effective Rate. If such Lender does not pay such corresponding amount forthwith
upon Administrative Agent's demand therefor, Administrative Agent shall promptly
notify Company and Company shall immediately pay such corresponding amount to
Administrative Agent together with interest thereon, for each day from such
Funding Date until the date such amount is paid to Administrative Agent, at the
rate payable under this Agreement for Base Rate Loans. Nothing in this
subsection 2.1C shall be deemed to relieve any Lender from its obligation to
fulfill its Commitments hereunder or to prejudice any rights that Company may
have against any Lender as a result of any default by such Lender hereunder.
D. THE REGISTER.
Administrative Agent, acting for these purposes solely as an
agent of Company (it being acknowledged that Administrative Agent, in such
capacity, and its officers, directors, employees, agent and affiliates shall
constitute Indemnitees under subsection 10.3), shall maintain at its address
referred to in subsection 10.8 a register for the recordation of, and shall
record, the names and addresses of Lenders and the Term Loan Commitment,
Revolving Loan Commitment, Swing Line Loan Commitment, Term Loan, Revolving
Loans and Swing Line Loans of each Lender from time to time (the "REGISTER").
Company and Administrative Agent shall deem and treat the Persons listed as
Lenders in the Register as the holders and owners of the corresponding
Commitments and Loans listed therein for all purposes hereof; all amounts owed
with respect to any Commitment or Loan shall be owed to the Lender listed in the
Register as the owner thereof; and any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is listed in the Register as a Lender shall be conclusive and binding
on any subsequent holder, assignee or transferee of the corresponding
Commitments or Loans. Each Lender shall record on its internal records the
amount of its Loans and Commitments and each payment in respect hereof, and any
such recordation shall be conclusive and binding on Company, absent manifest
error, subject to the entries in the Register, which shall, absent manifest
error, govern in the event of any inconsistency with any Lender's records.
Failure to make any recordation in the Register or in any Lender's records, or
any error in such recordation, shall not affect any Loans or Commitments or any
Obligations in respect of any Loans.
E. OPTIONAL NOTES. If so requested by any Lender by written
notice to Company (with a copy to Administrative Agent) at least two Business
Days prior to the Closing Date or at any time thereafter, Company shall execute
and deliver to such Lender (and/or, if applicable and if so specified in such
notice, to any Person who is an assignee of such Lender pursuant to subsection
10.1) on the Closing Date (or, if such notice is delivered after the Closing
Date, promptly after Company's receipt of such notice) a promissory note or
promissory notes to evidence such Lender's Term Loan, Revolving Loans or Swing
Line Loans, substantially in the
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form of Exhibit V, Exhibit VI or Exhibit VII annexed hereto, respectively, with
appropriate insertions.
2.2 INTEREST ON THE LOANS.
A. RATE OF INTEREST. Subject to the provisions of subsections
2.6 and 2.7, each Term Loan and each Revolving Loan shall bear interest on the
unpaid principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate determined by reference to the Base Rate or
the Eurodollar Rate. Subject to the provisions of subsection 2.7, each Swing
Line Loan shall bear interest on the unpaid principal amount thereof from the
date made through maturity (whether by acceleration or otherwise) at a rate
determined by reference to the Base Rate. The applicable basis for determining
the rate of interest with respect to any Term Loan or any Revolving Loan shall
be selected by Company initially at the time a Notice of Borrowing is given with
respect to such Loan pursuant to subsection 2.1B, and the basis for determining
the interest rate with respect to any Term Loan or any Revolving Loan may be
changed from time to time pursuant to subsection 2.2D. If on any day a Term Loan
or Revolving Loan is outstanding with respect to which notice has not been
delivered to Administrative Agent in accordance with the terms of this Agreement
specifying the applicable basis for determining the rate of interest, then for
that day that Loan shall bear interest determined by reference to the Base Rate.
(i) Subject to the provisions of subsections 2.2E, 2.2G and 2.7,
the Revolving Loans shall bear interest through maturity as follows:
(a) if a Base Rate Loan, then at the sum of the Base
Rate plus the Base Rate Margin set forth in the table below
opposite the Consolidated Interest Coverage Ratio for the four
Fiscal Quarter period for which the applicable Compliance
Certificate has been delivered pursuant to subsection 6.1(iv);
or
(b) if a Eurodollar Rate Loan, then at the sum of the
Eurodollar Rate plus the Eurodollar Rate Margin set forth in the
table below opposite the Consolidated Interest Coverage Ratio
for the four Fiscal Quarter period for which the applicable
Compliance Certificate has been delivered pursuant to subsection
6.1(iv):
Consolidated
Interest Coverage Eurodollar Rate Base
Ratio Margin Rate Margin
----------------- --------------- -----------
Greater than 2.00:1.00 3.75% 2.75%
Or equal to
Less than 2.00:1.00 4.25% 3.25%
provided that, until the delivery of the Compliance Certificate for the
first Fiscal Quarter ending six months after the Closing Date, the
applicable margin for Revolving Loans that
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are Eurodollar Rate Loans shall be 4.25% per annum and for Revolving
Loans that are Base Rate Loans shall be 3.25% per annum.
(ii) Subject to the provisions of subsections 2.2E, 2.2G and
2.7, the Term Loans shall bear interest through maturity as follows:
(a) if a Base Rate Loan, then at the sum of the Base
Rate plus 4.00% per annum; or
(b) if a Eurodollar Rate Loan, then at the sum of the
Eurodollar Rate plus 5.00% per annum.
(iii) Upon delivery of the Compliance Certificate by Company to
Administrative Agent pursuant to subsection 6.1(iv), the Base Rate
Margin and the Eurodollar Rate Margin for Revolving Loans shall
automatically be adjusted in accordance with such Compliance
Certificate, such adjustment to become effective on the next succeeding
Business Day following the receipt by Administrative Agent of such
Compliance Certificate (subject to the provisions of the foregoing
clause (i)); provided that, if at any time a Compliance Certificate is
not delivered at the time required pursuant to subsection 6.1(iv), from
the time such Compliance Certificate was required to be delivered until
delivery of such Compliance Certificate, the applicable margins shall be
the maximum percentage amount for the relevant Loan set forth above.
(iv) Subject to the provisions of subsections 2.2E, 2.2G and
2.7, the Swing Line Loans shall bear interest through maturity at the
sum of the Base Rate plus the applicable Base Rate Margin for Revolving
Loans minus a rate equal to the commitment fee percentage pursuant to
subsection 2.3A.
B. INTEREST PERIODS. In connection with each Eurodollar Rate
Loan, Company may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
"INTEREST PERIOD") to be applicable to such Loan, which Interest Period shall
be, at Company's option, either a one, two, three or six month period; provided
that:
(i) the initial Interest Period for any Eurodollar Rate Loan
shall commence on the Funding Date in respect of such Loan, in the case
of a Loan initially made as a Eurodollar Rate Loan, or on the date
specified in the applicable Notice of Conversion/Continuation, in the
case of a Loan converted to a Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods
applicable to a Eurodollar Rate Loan continued as such pursuant to a
Notice of Conversion/Continuation, each successive Interest Period shall
commence on the day on which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day that
is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided
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that, if any Interest Period would otherwise expire on a day that is not
a Business Day but is a day of the month after which no further Business
Day occurs in such month, such Interest Period shall expire on the next
preceding Business Day;
(iv) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (v) of this subsection 2.2B, end on the
last Business Day of a calendar month;
(v) no Interest Period with respect to any portion of the Term
Loans shall extend beyond the Term Loan Maturity Date, and no Interest
Period with respect to any portion of the Revolving Loans shall extend
beyond the Revolving Loan Commitment Termination Date;
(vi) no Interest Period with respect to any type of Term Loans
shall extend beyond a date on which Company is required to make a
scheduled payment of principal of such type of Term Loans, unless the
sum of (a) the aggregate principal amount of such type of Term Loans
that are Base Rate Loans plus (b) the aggregate principal amount of such
type of Term Loans that are Eurodollar Rate Loans with Interest Periods
expiring on or before such date equals or exceeds the principal amount
required to be paid on such type of Term Loans on such date;
(vii) there shall be no more than five Interest Periods
outstanding at any time; and
(viii) in the event Company fails to specify an Interest Period
for any Eurodollar Rate Loan in the applicable Notice of Borrowing or
Notice of Conversion/Continuation, Company shall be deemed to have
selected an Interest Period of one month.
C. INTEREST PAYMENTS. Subject to the provisions of subsection
2.2E, interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity (including final
maturity) provided that in the event any Swing Line Loans or any Revolving Loans
that are Base Rate Loans are prepaid pursuant to subsection 2.4B(i), interest
accrued on such Loans through the date of such prepayment shall be payable on
the next succeeding Interest Payment Date applicable to Base Rate Loans (or, if
earlier, at final maturity).
D. CONVERSION OR CONTINUATION. Subject to the provisions of
subsection 2.6, Company shall have the option (i) to convert at any time all or
any part of its outstanding Term Loans or Revolving Loans equal to $5,000,000
and multiples of $1,000,000 in excess of that amount from Loans bearing interest
at a rate determined by reference to one basis to Loans bearing interest at a
rate determined by reference to an alternative basis or (ii) upon the expiration
of any Interest Period applicable to a Eurodollar Rate Loan, to continue all or
any portion of such Loan equal to $5,000,000 and multiples of $1,000,000 in
excess of that amount as a Eurodollar Rate Loan; provided, however, that a
Eurodollar Rate Loan may only be
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converted into a Base Rate Loan on the expiration date of an Interest Period
applicable thereto unless Company pays all costs and expenses required pursuant
to subsection 2.6D.
Company shall deliver a Notice of Conversion/Continuation to
Administrative Agent no later than 12:00 Noon (New York City time) at least one
Business Day in advance of the proposed conversion date (in the case of a
conversion to a Base Rate Loan) and at least three Business Days in advance of
the proposed conversion/continuation date (in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan). In lieu of delivering a Notice of
Conversion/Continuation, Company may give Administrative Agent telephonic notice
by the required time of any proposed conversion/continuation under this
subsection 2.2D; provided that such notice shall be promptly confirmed in
writing by delivery of a Notice of Conversion/Continuation to Administrative
Agent on or before the proposed conversion/continuation date. Upon receipt of
written or telephonic notice of any proposed conversion/continuation under this
subsection 2.2D, Administrative Agent shall promptly transmit such notice by
telefacsimile or telephone to each Lender of the Loan subject to the Notice of
Conversion/Continuation.
E. DEFAULT RATE. Upon the occurrence and during the continuation
of any Event of Default, the outstanding principal amount of all Loans and, to
the extent permitted by applicable law, any interest payments thereon not paid
when due and any fees and other amounts then due and payable hereunder, shall
thereafter bear interest (including post-petition interest in any proceeding
under the Bankruptcy Code or other applicable bankruptcy laws) payable upon
demand at a rate that is 2% per annum in excess of the interest rate otherwise
payable under this Agreement with respect to the applicable Loans (or, in the
case of any such fees and other amounts, at a rate which is 2% per annum in
excess of the interest rate otherwise payable under this Agreement for Base Rate
Loans); provided that, in the case of Eurodollar Rate Loans, upon the expiration
of the Interest Period in effect at the time any such increase in interest rate
is effective such Eurodollar Rate Loans shall thereupon become Base Rate Loans
and shall thereafter bear interest payable upon demand at a rate which is 2% per
annum in excess of the interest rate otherwise payable under this Agreement for
Base Rate Loans. Payment or acceptance of the increased rates of interest
provided for in this subsection 2.2E is not a permitted alternative to timely
payment and shall not constitute a waiver of any Event of Default or otherwise
prejudice or limit any rights or remedies of Administrative Agent or any Lender.
F. COMPUTATION OF INTEREST. Interest on the Loans shall be
computed on the basis of a 360-day year, in each case for the actual number of
days elapsed in the period during which it accrues. In computing interest on any
Loan, the date of the making of such Loan or the first day of an Interest Period
applicable to such Loan or, with respect to a Base Rate Loan being converted
from a Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan
to such Base Rate Loan, as the case may be, shall be included, and the date of
payment of such Loan or the expiration date of an Interest Period applicable to
such Loan or, with respect to a Base Rate Loan being converted to a Eurodollar
Rate Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate
Loan, as the case may be, shall be excluded; provided that if a Loan is repaid
on the same day on which it is made, one day's interest shall be paid on that
Loan.
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G. MAXIMUM RATE. Notwithstanding the foregoing provisions of
this subsection 2.2, in no event shall the rate of interest payable by Company
with respect to any Loan exceed the maximum rate of interest permitted to be
charged under applicable law.
2.3 FEES.
A. COMMITMENT FEES. Company agrees to pay to Administrative
Agent, for distribution to each Revolving Lender in proportion to that Lender's
Pro Rata Share, commitment fees for the period from and including the Closing
Date to and excluding the Revolving Loan Commitment Termination Date equal to
the average of the daily excess of the Revolving Loan Commitments over the sum
of (i) the aggregate principal amount of outstanding Revolving Loans (but not
any outstanding Swing Line Loans) plus (ii) the Letter of Credit Usage
multiplied by 1.50% per annum (the "commitment fee percentage"), such commitment
fees to be calculated on the basis of a 360-day year and the actual number of
days elapsed and to be payable quarterly in arrears on the last Business Day of
each March, June, September and December of each year, commencing on the first
such date to occur after the Closing Date, and on the Revolving Loan Commitment
Termination Date.
B. OTHER FEES. Company agrees to pay to Administrative Agent and
each Lender such fees in the amounts and at the times separately agreed upon
between Company and Administrative Agent and Company and each such Lender.
2.4 REPAYMENTS, PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN
COMMITMENTS; GENERAL PROVISIONS REGARDING PAYMENTS; APPLICATION
OF PROCEEDS OF COLLATERAL AND PAYMENTS UNDER SUBSIDIARY
GUARANTY.
A. SCHEDULED PAYMENTS OF TERM LOANS. Company shall make
principal payments on the Term Loans in installments on the last Business Day of
each March, June, September and December of each year, for the period commencing
on December 31, 2001 and ending on September 30, 2005, in the amount of $250,000
each, and for the period commencing on December 31, 2005 and ending on the Term
Loan Maturity Date, in the amount of $24,000,000 each; provided that the
scheduled installments of principal of the Term Loans set forth above shall be
reduced in connection with any voluntary or mandatory prepayments of the Term
Loans in accordance with subsection 2.4B(iv); and provided, further that the
Term Loans and all other amounts owed hereunder with respect to the Term Loans
shall be paid in full no later than the Term Loan Maturity Date, and the final
installment payable by Company in respect of the Term Loans on such date shall
be in an amount, if such amount is different from that specified above,
sufficient to repay all amounts owing by Company under this Agreement with
respect to the Term Loans.
B. PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN COMMITMENTS.
(i) Voluntary Prepayments. Company may, upon written or
telephonic notice to Administrative Agent on or prior to 12:00 Noon (New
York City time) on the date of prepayment, which notice, if telephonic,
shall be promptly confirmed in writing, at any time and from time to
time prepay any Swing Line Loan on any Business Day in whole
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or in part in an aggregate minimum amount of $1,000,000 and multiples of
$500,000 in excess of that amount. Company may, upon not less than one
Business Day's prior written or telephonic notice, in the case of Base
Rate Loans, and three Business Days' prior written or telephonic notice,
in the case of Eurodollar Rate Loans, in each case given to
Administrative Agent by 12:00 Noon (New York City time) on the date
required and, if given by telephone, promptly confirmed in writing to
Administrative Agent, at any time and from time to time prepay any Term
Loans or Revolving Loans on any Business Day in whole or in part in an
aggregate minimum amount of $2,000,000 and multiples of $500,000 in
excess of that amount; provided, however, that a Eurodollar Rate Loan
may only be prepaid on the expiration of the Interest Period applicable
thereto unless Company pays all costs and expenses required under
subsection 2.6D; provided further that (x) prior to the first
anniversary of the Closing Date any Term Loans may be prepaid only upon
the payment of a premium equal to 2.00% of the principal amount of Term
Loans so prepaid and (y) on or after the first anniversary of the
Closing Date and prior to the second anniversary of the Closing Date any
Term Loans may be prepaid only upon the payment of a premium equal to
1.00% of the principal amount of Term Loans so prepaid. Administrative
Agent will promptly notify each Lender for the Loans to be prepaid of
such prepayment. Notice of prepayment having been given as aforesaid,
the principal amount of the Loans specified in such notice shall become
due and payable on the prepayment date specified therein. Any such
voluntary prepayment shall be applied as specified in subsection
2.4B(iv).
(ii) Voluntary Reductions of Revolving Loan Commitments. Company
may, upon not less than three Business Days' prior written or telephonic
notice confirmed in writing to Administrative Agent, at any time and
from time to time terminate in whole or permanently reduce in part,
without premium or penalty, the Revolving Loan Commitments in an amount
up to the amount by which the Revolving Loan Commitments exceed the
Total Utilization of Revolving Loan Commitments at the time of such
proposed termination or reduction; provided that any such partial
reduction of the Revolving Loan Commitments shall be in an aggregate
minimum amount of $2,000,000 and multiples of $500,000 in excess of that
amount. Administrative Agent will promptly notify each Revolving Lender
of such reduction. Company's notice to Administrative Agent shall
designate the date (which shall be a Business Day) of such termination
or reduction and the amount of any partial reduction, and such
termination or reduction of the Revolving Loan Commitments shall be
effective on the date specified in Company's notice and shall reduce the
Revolving Loan Commitment of each Revolving Lender proportionately to
its Pro Rata Share. Any such voluntary reduction of the Revolving Loan
Commitments shall be applied as specified in subsection 2.4B(iv).
(iii) Mandatory Prepayments and Mandatory Reductions of
Revolving Loan Commitments. The Loans shall be prepaid and/or the
Revolving Loan Commitments shall be permanently reduced in the amounts
and under the circumstances set forth below, all such prepayments and/or
reductions to be applied as set forth below or as more specifically
provided in subsection 2.4B(iv):
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(a) Prepayments and Reductions From Net Asset Sale
Proceeds. No later than the first Business Day after the date of
receipt by Company or any of its Subsidiaries of any Net Asset
Sale Proceeds in respect of any Asset Sale, Company shall prepay
the Loans and/or the Revolving Loan Commitments shall be
permanently reduced in an aggregate amount equal to such Net
Asset Sale Proceeds; provided however that Company may, so long
as no Potential Event of Default or Event of Default shall have
occurred and be continuing, and to the extent that the aggregate
amount of such reinvested Net Asset Sale Proceeds from the
Closing Date through the date of determination does not exceed
$5,000,000, deliver to Administrative Agent an Officer's
Certificate setting forth (x) that portion of such Net Asset
Sale Proceeds that Company or such Subsidiary intends to
reinvest in equipment or other productive assets of the general
type used in the business of Company and its Subsidiaries within
360 days of such date of receipt and (y) the proposed use of
such portion of the Net Asset Sale Proceeds and such other
information with respect to such reinvestment as Administrative
Agent may reasonably request, and Company shall, or shall cause
one or more of its Subsidiaries to, promptly and diligently
apply such portion to such reinvestment purposes; provided,
however, that pending reinvestment such portion of the Net Asset
Sale Proceeds shall be applied to prepay outstanding Revolving
Loans (without a reduction in Revolving Loan Commitments) to the
full extent thereof. In addition, Company shall, no later than
360 days after receipt of such Net Asset Sale Proceeds that have
not theretofore been applied to the Obligations or that have not
been so reinvested as provided above, make an additional
prepayment of the Loans (and/or the Revolving Loan Commitments
shall be permanently reduced) in the full amount of all such Net
Asset Sale Proceeds.
(b) Prepayments and Reductions from Net
Insurance/Condemnation Proceeds. No later than the first
Business Day (unless otherwise provided in subsection 6.4C)
following the date of receipt by Administrative Agent or by
Company or any of its Subsidiaries of any Net
Insurance/Condemnation Proceeds that are required to be applied
to prepay the Loans and/or reduce the Revolving Loan Commitments
pursuant to the provisions of subsection 6.4C, Company shall
prepay the Loans and/or the Revolving Loan Commitments shall be
permanently reduced in an aggregate amount equal to the amount
of such Net Insurance/Condemnation Proceeds.
(c) Prepayments and Reductions Due to Issuance of Equity
Securities. No later than the first Business Day following the
date of receipt of the Net Securities Proceeds from the issuance
of any Capital Stock of Company or of any Subsidiary of Company,
other than any Net Securities Proceeds received in connection
with a transaction described in subsection 7.7(vii), Company
shall prepay the Loans and/or the Revolving Loan Commitments
shall be permanently reduced in an aggregate amount equal to
100% of such Net Securities Proceeds; provided however that in
the event that Company's Consolidated Interest Coverage Ratio as
of the last day of the immediately preceding Fiscal Quarter as
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set forth in the Compliance Certificate for such Fiscal Quarter
delivered to Administrative Agent pursuant to subsection
6.1(iv), is not less than 2.00:1.00, such percentage shall be
reduced to 50%.
(d) Prepayments and Reductions Due to Issuance of
Indebtedness. No later than the first Business Day following the
date of receipt of the Net Securities Proceeds from the issuance
of any Indebtedness of Company or any of its Subsidiaries after
the Closing Date, other than Indebtedness permitted pursuant to
subsection 7.1, Company shall prepay the Loans and/or the
Revolving Loan Commitments shall be permanently reduced in an
aggregate amount equal to such Net Securities Proceeds.
(e) Prepayments and Reductions from Consolidated Excess
Cash Flow. In the event that there shall be Consolidated Excess
Cash Flow for any Fiscal Year (commencing with the Fiscal Year
ended December 31, 2001), Company shall, no later than 90 days
after the end of such Fiscal Year, prepay the Loans and/or the
Revolving Loan Commitments shall be permanently reduced in an
aggregate amount equal to 100% of such Consolidated Excess Cash
Flow; provided however that in the event that Company's
Consolidated Interest Coverage Ratio as of the last day of the
immediately preceding Fiscal Quarter as set forth in the
Compliance Certificate for such Fiscal Quarter delivered to
Administrative Agent pursuant to subsection 6.1(iv), is not less
than 2.00:1.00, such percentage shall be reduced to 75%.
(f) Calculations of Net Proceeds Amounts; Additional
Prepayments and Reductions Based on Subsequent Calculations.
Company shall provide Administrative Agent with not less than
three Business Days' prior written or telephonic notice of any
prepayment of the Loans pursuant to subsections
2.4B(iii)(a)-(e), which notice, if given by telephone, shall be
promptly confirmed in writing to Administrative Agent.
Administrative Agent shall promptly notify each Lender of such
prepayment and of the amount of the prepayment proposed to be
applied to such Lender's Loans. Concurrently with any prepayment
of the Loans and/or reduction of the Revolving Loan Commitments
pursuant to subsections 2.4B(iii)(a)-(e), Company shall deliver
to Administrative Agent an Officer's Certificate demonstrating
the calculation of the amount of the applicable Net Asset Sale
Proceeds, Net Insurance/Condemnation Proceeds, Net Securities
Proceeds, or Consolidated Excess Cash Flow, as the case may be,
that gave rise to such prepayment and/or reduction. In the event
that Company shall subsequently determine that the actual amount
was greater than the amount set forth in such Officer's
Certificate, Company shall promptly make an additional
prepayment of the Loans (and/or, if applicable, the Revolving
Loan Commitments shall be permanently reduced) in an amount
equal to the amount of such excess, and Company shall
concurrently therewith deliver to Administrative Agent an
Officer's Certificate demonstrating the derivation of the
additional amount resulting in such excess.
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(g) Prepayments Due to Reductions or Restrictions of
Revolving Loan Commitments. Company shall from time to time
prepay first the Swing Line Loans and second the Revolving Loans
to the extent necessary so that the Total Utilization of
Revolving Loan Commitments shall not at any time exceed the
Revolving Loan Commitments then in effect.
(h) Prepayment Premiums. Concurrently with any
prepayment of the Term Loans pursuant to subsection
2.4B(iii)(a)-(d), Company shall pay to the holders of such Term
Loans (x) prior to the first anniversary of the Closing Date, a
premium equal to 2.00% of the principal amount of Term Loans so
prepaid and (y) on or after the first anniversary of the Closing
Date and prior to the second anniversary of the Closing Date, a
premium equal to 1.00% of the principal amount of Term Loans so
prepaid.
(iv) Application of Prepayments.
(a) Application of Voluntary Prepayments by Type of
Loans and Order of Maturity. Any voluntary prepayments pursuant
to subsection 2.4B(i) shall be applied as specified by Company
in the applicable notice of prepayment; provided that in the
event Company fails to specify the Loans to which any such
prepayment shall be applied, such prepayment shall be applied
first to repay outstanding Swing Line Loans to the full extent
thereof, second to repay outstanding Revolving Loans to the full
extent thereof, and third to repay outstanding Term Loans to the
full extent thereof. Any voluntary prepayments of the Term Loans
pursuant to subsection 2.4B(i) shall be applied to reduce the
scheduled installments of principal of the Term Loans set forth
in subsection 2.4A(i) on a pro rata basis (in accordance with
the respective outstanding principal amounts thereof).
(b) Application of Mandatory Prepayments by Type of
Loans. Any amount required to be applied as a mandatory
prepayment of the Loans and/or a reduction of the Revolving Loan
Commitments pursuant to subsections 2.4B(iii)(a)-(f) shall be
applied first to prepay the Term Loans to the full extent
thereof, second, to the extent of any remaining portion of such
amount, to prepay the Swing Line Loans to the full extent
thereof and to permanently reduce the Revolving Loan Commitments
by the amount of such prepayment, third, to the extent of any
remaining portion of such amount, to prepay the Revolving Loans
to the full extent thereof and to further permanently reduce the
Revolving Loan Commitments by the amount of such prepayment, and
fourth, to the extent of any remaining portion of such amount,
to further permanently reduce the Revolving Loan Commitments to
the full extent thereof.
(c) Application of Mandatory Prepayments of Term Loans
to the Scheduled Installments of Principal Thereof. Any
mandatory prepayments of the Term Loans pursuant to subsection
2.4B(iii) shall be applied to reduce the scheduled installments
of principal of the Term Loans set forth in subsection
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2.4A(i) on a pro rata basis (in accordance with the respective
outstanding principal amounts thereof). Notwithstanding the
foregoing, in the case of any mandatory prepayment of the Term
Loans, each Lender of the Term Loans has the option to waive its
right to receive the amount of such mandatory prepayment of its
Term Loans by delivering to Administrative Agent a written
notification of such Lender's election to waive such mandatory
prepayment by 3:00 P.M. (New York City time) on the second
Business Day preceding the date of such proposed prepayment. If
any Lender or Lenders elect to waive the right to receive the
amount of such mandatory prepayment, the amount of such
mandatory prepayment (but not any related premium) that
otherwise would have been applied to mandatorily prepay the Term
Loans of such Lender or Lenders shall be applied instead to the
mandatory prepayment of the Revolving Loans and/or permanent
reduction of the Revolving Loan Commitments up to a maximum of
$10,000,000 for all such reductions.
(d) Application of Prepayments to Base Rate Loans and
Eurodollar Rate Loans. Any mandatory prepayment of Term Loans
shall be applied to all then outstanding Term Loans on a pro
rata basis (in accordance with the respective outstanding
principal amounts thereof) without regard to whether such Loans
are Base Rate Loans or Eurodollar Rate Loans and without regard
to the Interest Period of any such Eurodollar Rate Loans.
Mandatory prepayments to be applied to Revolving Loans, and
voluntary prepayments of Term Loans or Revolving Loans
(considering such Term Loans and Revolving Loans being prepaid
separately), shall be applied first to Base Rate Loans to the
full extent thereof before application to Eurodollar Rate Loans,
in each case in a manner which minimizes the amount of any
payments required to be made by Company pursuant to subsection
2.6D.
C. GENERAL PROVISIONS REGARDING PAYMENTS.
(i) Manner and Time of Payment. All payments by Company of
principal, premium, interest, fees and other Obligations hereunder shall
be made in Dollars in same day funds, without defense, setoff or
counterclaim, free of any restriction or condition, and delivered to
Administrative Agent not later than 1:00 P.M. (New York City time) on
the date due at the Funding and Payment Office for the account of
Lenders; funds received by Administrative Agent after that time on such
due date shall be deemed to have been paid by Company on the next
succeeding Business Day.
(ii) Application of Payments to Principal and Interest. Except
as provided in subsection 2.2C, all payments in respect of the principal
amount of any Loan shall include payment of any premium and of accrued
interest on the principal amount being repaid or prepaid, and all such
payments shall be applied to the payment of premium or interest, as the
case may be, before application to principal.
(iii) Apportionment of Payments. Except as otherwise provided in
subsection 2.4B(iv)(c), aggregate principal, premium and interest,
payments in respect of Term
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Loans and Revolving Loans shall be apportioned among all outstanding
Loans to which such payments relate, in each case proportionately to
Lenders' respective Pro Rata Shares. Administrative Agent shall promptly
distribute to each Lender, at its primary address set forth below its
name on the appropriate signature page hereof or at such other address
as such Lender may request, its Pro Rata Share of all such payments
received by Administrative Agent and the commitment fees of such Lender,
if any, when received by Administrative Agent pursuant to subsection
2.3. Notwithstanding the foregoing provisions of this subsection
2.4C(iii), if, pursuant to the provisions of subsection 2.6C, any Notice
of Conversion/Continuation is withdrawn as to any Affected Lender or if
any Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share
of any Eurodollar Rate Loans, Administrative Agent shall give effect
thereto in apportioning payments received thereafter.
(iv) Payments on Business Days. Except as otherwise expressly
provided herein, whenever any payment to be made hereunder shall be
stated to be due on a day that is not a Business Day, such payment shall
be made on the next succeeding Business Day and such extension of time
shall be included in the computation of the payment of interest
hereunder or of the commitment fees hereunder, as the case may be.
(v) Notation of Payment. Each Lender agrees that before
disposing of any Note held by it, or any part thereof (other than by
granting participations therein), that Lender will make a notation
thereon of all Loans evidenced by that Note and all principal payments
previously made thereon and of the date to which interest thereon has
been paid; provided that the failure to make (or any error in the making
of) a notation of any Loan made under such Note shall not limit or
otherwise affect the obligations of Company hereunder or under such Note
with respect to any Loan or any payments of principal or interest on
such Note.
D. APPLICATION OF PROCEEDS OF COLLATERAL AND PAYMENTS UNDER
SUBSIDIARY GUARANTY.
(i) Proceeds of Collateral. All proceeds received by
Administrative Agent in respect of any sale of, collection from, or
other realization upon all or any part of the Collateral by
Administrative Agent under any Collateral Document shall be applied
promptly by Administrative Agent against, the applicable Secured
Obligations (as defined in such Collateral Document), in each case in
the following order of priority:
(a) To the payment of all costs and expenses of such
sale, collection or other realization, including reasonable
compensation to Administrative Agent and its agents and counsel,
and all other expenses, liabilities and advances made or
incurred by Administrative Agent in connection therewith, and
all amounts for which Administrative Agent is entitled to
indemnification under such Collateral Document and all advances
made by Administrative Agent thereunder for the account of the
applicable Loan Party, and to the payment of all costs and
expenses paid or incurred by Administrative Agent in connection
with the exercise of any
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right or remedy under such Collateral Document, all in
accordance with the terms of this Agreement and such Collateral
Document;
(b) thereafter, to the extent of any excess such
proceeds, to the payment of all other such Secured Obligations
for the ratable benefit of the holders thereof; and
(c) thereafter, to the extent of any excess such
proceeds, to the payment to or upon the order of such Loan Party
or to whosoever may be lawfully entitled to receive the same or
as a court of competent jurisdiction may direct.
(ii) Application of Payments Under Subsidiary Guaranty. All
payments received by Administrative Agent under the Subsidiary Guaranty
shall be applied promptly from time to time by Administrative Agent in
the following order of priority:
(a) To the payment of the costs and expenses of any
collection or other realization under such Subsidiary Guaranty,
including reasonable compensation to Administrative Agent and
its agents and counsel, and all expenses, liabilities and
advances made or incurred by Administrative Agent in connection
therewith, all in accordance with the terms of this Agreement
and such Subsidiary Guaranty;
(b) thereafter, to the extent of any excess such
payments, to the payment of all other Guarantied Obligations (as
defined in such Subsidiary Guaranty) for the ratable benefit of
the holders thereof; and
(c) thereafter, to the extent of any excess such
payments, to the payment to the applicable Subsidiary Guarantor
or to whosoever may be lawfully entitled to receive the same or
as a court of competent jurisdiction may direct.
2.5 USE OF PROCEEDS.
A. TERM LOANS. The proceeds of the Term Loans shall be applied
by Company to (i) refinance Company's Indebtedness under its Existing Credit
Agreement, approximately $26,300,000 of which is currently outstanding, (ii)
deposit $54,000,000 into the Securities Accounts, an aggregate of $45,000,000 of
which will be used to make tax payments in October and December 2001 related to
Company's sale of certain assets, including the Seattle Supersonics, and
$9,000,000 of which will be used to make the interest payment in January 2002 on
Company's 9.00% Senior Subordinated Notes due 2009 and (iii) to pay fees and
expenses related to the foregoing. The remaining proceeds of the Term Loans will
be utilized by Company for working capital and other general corporate purposes.
B. REVOLVING LOANS; SWING LINE LOANS. The proceeds of any
Revolving Loans and any Swing Line Loans shall be applied by Company for working
capital and other general corporate purposes, which may include the making of
intercompany loans to any of Company's wholly-owned Subsidiaries, in accordance
with subsection 7.1(iv), for their own general corporate purposes.
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C. MARGIN REGULATIONS. No portion of the proceeds of any
borrowing under this Agreement shall be used by Company or any of its
Subsidiaries in any manner that might cause the borrowing or the application of
such proceeds to violate Regulation U, Regulation T or Regulation X of the Board
of Governors of the Federal Reserve System or any other regulation of such Board
or to violate the Exchange Act, in each case as in effect on the date or dates
of such borrowing and such use of proceeds.
2.6 SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS.
Notwithstanding any other provision of this Agreement to the
contrary, the following provisions shall govern with respect to Eurodollar Rate
Loans as to the matters covered:
A. DETERMINATION OF APPLICABLE INTEREST RATE. As soon as
practicable after 10:00 A.M. (New York City time) on each Interest Rate
Determination Date, Administrative Agent shall determine (which determination
shall, absent manifest error, be conclusive and binding upon all parties) the
interest rate that shall apply to the Eurodollar Rate Loans for which an
interest rate is then being determined for the applicable Interest Period and
shall promptly give notice thereof (in writing or by telephone confirmed in
writing) to Company and each Lender.
B. INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the event
that Administrative Agent shall have determined (which determination shall be
conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date that by reason of circumstances affecting the London
interbank market adequate and fair means do not exist for ascertaining the
interest rate applicable to such Loans on the basis provided for in the
definition of Eurodollar Rate, Administrative Agent shall on such date give
notice (by telefacsimile or by telephone confirmed in writing) to Company and
each Lender of such determination, whereupon (i) no Loans may be made as, or
converted to, Eurodollar Rate Loans until such time as Administrative Agent
notifies Company and Lenders that the circumstances giving rise to such notice
no longer exist and (ii) any Notice of Borrowing or Notice of
Conversion/Continuation given by Company with respect to the Loans in respect of
which such determination was made shall be deemed to be for a Base Rate Loan.
C. ILLEGALITY OR IMPRACTICABILITY OF EURODOLLAR RATE LOANS. In
the event that on any date any Lender shall have determined (which determination
shall be conclusive and binding upon all parties hereto but shall be made only
after consultation with Company and Administrative Agent) that the making,
maintaining or continuation of its Eurodollar Rate Loans (i) has become unlawful
as a result of compliance by such Lender in good faith with any law, treaty,
governmental rule, regulation, guideline or order (or would conflict with any
such treaty, governmental rule, regulation, guideline or order not having the
force of law even though the failure to comply therewith would not be unlawful)
or (ii) has become impracticable, or would cause such Lender material hardship,
as a result of contingencies occurring after the date of this Agreement which
materially and adversely affect the London interbank market or the position of
such Lender in that market, then, and in any such event, such Lender shall be an
"AFFECTED LENDER" and it shall on that day give notice (by telefacsimile or by
telephone confirmed in
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writing) to Company and Administrative Agent of such determination (which notice
Administrative Agent shall promptly transmit to each other Lender). Thereafter
(a) the obligation of the Affected Lender to make Loans as, or to convert Loans
to, Eurodollar Rate Loans shall be suspended until such notice shall be
withdrawn by the Affected Lender, (b) to the extent such determination by the
Affected Lender relates to a Eurodollar Rate Loan then being requested by
Company pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, the Affected Lender shall make such Loan as (or convert
such Loan to, as the case may be) a Base Rate Loan, (c) the Affected Lender's
obligation to maintain its outstanding Eurodollar Rate Loans (the "AFFECTED
LOANS") shall be terminated at the earlier to occur of the expiration of the
Interest Period then in effect with respect to the Affected Loans or when
required by law, and (d) the Affected Loans shall automatically convert into
Base Rate Loans on the date of such termination. Notwithstanding the foregoing,
to the extent a determination by an Affected Lender as described above relates
to a Eurodollar Rate Loan then being requested by Company pursuant to a Notice
of Borrowing or a Notice of Conversion/Continuation, Company shall have the
option, subject to the provisions of subsection 2.6D, to rescind such Notice of
Borrowing or Notice of Conversion/Continuation as to all Lenders by giving
notice (by telefacsimile or by telephone confirmed in writing) to Administrative
Agent of such rescission on the date on which the Affected Lender gives notice
of its determination as described above (which notice of rescission
Administrative Agent shall promptly transmit to each other Lender). Except as
provided in the immediately preceding sentence, nothing in this subsection 2.6C
shall affect the obligation of any Lender other than an Affected Lender to make
or maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in
accordance with the terms of this Agreement.
D. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST
PERIODS. Company shall compensate each Lender, upon written request by that
Lender pursuant to subsection 2.8, for all reasonable losses, expenses and
liabilities (including any interest paid by that Lender to lenders of funds
borrowed by it to make or carry its Eurodollar Rate Loans and any loss, expense
or liability sustained by that Lender in connection with the liquidation or
re-employment of such funds) which that Lender may sustain: (i) if for any
reason (other than a default by that Lender) a borrowing of any Eurodollar Rate
Loan does not occur on a date specified therefor in a Notice of Borrowing or a
telephonic request therefor, or a conversion to or continuation of any
Eurodollar Rate Loan does not occur on a date specified therefor in a Notice of
Conversion/Continuation or a telephonic request therefor, (ii) if any prepayment
(including any prepayment or conversion occasioned by the circumstances
described in subsection 2.6C) or other principal payment or any conversion of
any of its Eurodollar Rate Loans occurs on a date prior to the last day of an
Interest Period applicable to that Loan, (iii) if any prepayment of any of its
Eurodollar Rate Loans is not made on any date specified in a notice of
prepayment given by Company, or (iv) as a consequence of any other default by
Company in the repayment of its Eurodollar Rate Loans when required by the terms
of this Agreement.
E. BOOKING OF EURODOLLAR RATE LOANS. Any Lender may make, carry
or transfer Eurodollar Rate Loans at, to, or for the account of any of its
branch offices or the office of an Affiliate of that Lender.
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F. ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR RATE LOANS.
Calculation of all amounts payable to a Lender under this subsection 2.6 and
under subsection 2.7A shall be made as though that Lender had funded each of its
Eurodollar Rate Loans through the purchase of a Eurodollar deposit bearing
interest at the rate obtained pursuant to clause (i) of the definition of
Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate Loan
and having a maturity comparable to the relevant Interest Period, whether or not
its Eurodollar Rate Loans had been funded in such manner.
G. EURODOLLAR RATE LOANS AFTER DEFAULT. After the occurrence of
and during the continuation of a Potential Event of Default or an Event of
Default, (i) Company may not elect to have a Loan be made or maintained as, or
converted to, a Eurodollar Rate Loan after the expiration of any Interest Period
then in effect for that Loan and (ii) subject to the provisions of subsection
2.6D, any Notice of Borrowing or Notice of Conversion/Continuation given by
Company with respect to a requested borrowing or conversion/continuation that
has not yet occurred shall be deemed to be for a Base Rate Loan or, if the
conditions to making a Loan set forth in subsection 4.2 cannot then be
satisfied, to be rescinded by Company.
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
A. COMPENSATION FOR INCREASED COSTS. Subject to the provisions
of subsection 2.7B (which shall be controlling with respect to the matters
covered thereby), in the event that any Lender (including any Issuing Lender)
shall determine (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto) that any law, treaty or
governmental rule, regulation or order, or any change therein or in the
interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or other Government Authority, in each case that
becomes effective after the date hereof, or compliance by such Lender with any
guideline, request or directive issued or made after the date hereof by any
central bank or other Government Authority (whether or not having the force of
law):
(i) subjects such Lender to any additional Tax with respect to
this Agreement or any of its obligations hereunder (including with
respect to issuing or maintaining any Letters of Credit or purchasing or
maintaining any participations therein or maintaining any Commitment
hereunder) or any payments to such Lender of principal, interest, fees
or any other amount payable hereunder;
(ii) imposes, modifies or holds applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement
against assets held by, or deposits or other liabilities in or for the
account of, or advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of such Lender (other than any
such reserve or other requirements with respect to Eurodollar Rate Loans
that are reflected in the definition of Eurodollar Rate); or
(iii) imposes any other condition (other than with respect to
Taxes) on or affecting such Lender or its obligations hereunder or the
London interbank market;
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and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining its Loans or Commitments or agreeing to
issue, issuing or maintaining any Letter of Credit or agreeing to purchase,
purchasing or maintaining any participation therein or to reduce any amount
received or receivable by such Lender with respect thereto; then, in any such
case, Company shall promptly pay to such Lender, upon receipt of the statement
referred to in subsection 2.8A, such additional amount or amounts (in the form
of an increased rate of, or a different method of calculating, interest or
otherwise as such Lender in its sole discretion shall determine) as may be
necessary to compensate such Lender for any such increased cost or reduction in
amounts received or receivable hereunder.
B. TAXES.
(i) Payments to Be Free and Clear. All sums payable by Company
under this Agreement and the other Loan Documents shall be paid free and
clear of, and without any deduction or withholding on account of, any
Tax imposed, levied, collected, withheld or assessed by or within the
United States of America or any political subdivision in or of the
United States of America or any other jurisdiction from or to which a
payment is made by or on behalf of Company or by any federation or
organization of which the United States of America or any such
jurisdiction is a member at the time of payment.
(ii) Grossing-up of Payments. If Company or any other Person is
required by law to make any deduction or withholding on account of any
such Tax from any sum paid or payable by Company to Administrative Agent
or any Lender under any of the Loan Documents:
(a) Company shall notify Administrative Agent of any
such requirement or any change in any such requirement as soon
as Company becomes aware of it;
(b) Company shall pay any such Tax when such Tax is due,
such payment to be made (if the liability to pay is imposed on
Company) for its own account or (if that liability is imposed on
Administrative Agent or such Lender, as the case may be) on
behalf of and in the name of Administrative Agent or such
Lender;
(c) the sum payable by Company in respect of which the
relevant deduction, withholding or payment is required shall be
increased to the extent necessary to ensure that, after the
making of that deduction, withholding or payment, Administrative
Agent or such Lender, as the case may be, receives on the due
date a net sum equal to what it would have received had no such
deduction, withholding or payment been required or made; and
(d) within 30 days after paying any sum from which it is
required by law to make any deduction or withholding, and within
30 days after the due date of payment of any Tax which it is
required by clause (b) above to pay, Company shall deliver to
Administrative Agent evidence satisfactory to the other affected
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parties of such deduction, withholding or payment and of the
remittance thereof to the relevant taxing or other authority;
provided that no such additional amount shall be required to be paid to any
Lender under clause (c) above except to the extent that any change after the
date on which such Lender became a Lender in any such requirement for a
deduction, withholding or payment as is mentioned therein shall result in an
increase in the rate of such deduction, withholding or payment from that in
effect on the date on which such Lender became a Lender, in respect of payments
to such Lender.
(iii) Evidence of Exemption from U.S. Withholding Tax.
(a) Each Lender that is organized under the laws of any
jurisdiction other than the United States or any state or other
political subdivision thereof (for purposes of this subsection
2.7B(iii), a "NON-US LENDER") shall deliver to Administrative
Agent and to Company, on or prior to the Closing Date (in the
case of each Lender listed on the signature pages hereof) or on
or prior to the date of the Assignment Agreement pursuant to
which it becomes a Lender (in the case of each other Lender),
and at such other times as may be necessary in the determination
of Company or Administrative Agent (each in the reasonable
exercise of its discretion), two original copies of Internal
Revenue Service Form W-8BEN or W-8ECI (or any successor forms)
properly completed and duly executed by such Lender, or, in the
case of a Non-US Lender claiming exemption from United States
federal withholding tax under Section 871(h) or 881(c) of the
Internal Revenue Code with respect to payments of "portfolio
interest", a form W-8BEN, and, in the case of a Lender that has
certified in writing to Administrative Agent that it is not a
"bank" (as defined in Section 881(c)(3)(A) of the Internal
Revenue Code), a certificate of such Lender certifying that such
Lender is not (i) a "bank" for purposes of Section 881(c) of the
Internal Revenue Code, (ii) a ten-percent shareholder (within
the meaning of Section 871(h)(3)(B) of the Internal Revenue
Code) of Company or (iii) a controlled foreign corporation
related to Company (within the meaning of Section 864(d)(4) of
the Internal Revenue Code) in each case together with any other
certificate or statement of exemption required under the
Internal Revenue Code or the regulations issued thereunder to
establish that such Lender is not subject to United States
withholding tax with respect to any payments to such Lender of
interest payable under any of the Loan Documents.
(b) Each Non-US Lender, to the extent it does not act or
ceases to act for its own account with respect to any portion of
any sums paid or payable to such Lender under any of the Loan
Documents (for example, in the case of a typical participation
by such Lender), shall deliver to Administrative Agent and to
Company, on or prior to the Closing Date (in the case of each
Lender listed on the signatures pages hereof), on or prior to
the date of the Assignment Agreement pursuant to which it
becomes a Lender (in the case of each other Lender), or on such
later date when such Lender ceases to act for its own account
with respect to
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any portion of any such sums paid or payable, and at such other
times as may be necessary in the determination of Company or
Administrative Agent (each in the reasonable exercise of its
discretion), (1) two original copies of the forms or statements
required to be provided by such Lender under subsection
2.7B(iii)(a), properly completed and duly executed by such
Lender, to establish the portion of any such sums paid or
payable with respect to which such Lender acts for its own
account that is not subject to United States withholding tax,
and (2) two original copies of Internal Revenue Service Form
W-8IMY (or any successor forms) properly completed and duly
executed by such Lender, together with any information, if any,
such Lender chooses to transmit with such form, and any other
certificate or statement of exemption required under the
Internal Revenue Code or the regulations issued thereunder, to
establish that such Lender is not acting for its own account
with respect to a portion of any such sums payable to such
Lender.
(c) Each Non-US Lender hereby agrees, from time to time
after the initial delivery by such Lender of such forms,
whenever a lapse in time or change in circumstances renders such
forms, certificates or other evidence so delivered obsolete or
inaccurate in any material respect, that such Lender shall
promptly (1) deliver to Administrative Agent and to Company two
original copies of renewals, amendments or additional or
successor forms, properly completed and duly executed by such
Lender, together with any other certificate or statement of
exemption required in order to confirm or establish that such
Lender is not subject to United States withholding tax with
respect to payments to such Lender under the Loan Documents and,
if applicable, that such Lender does not act for its own account
with respect to any portion of such payment, or (2) notify
Administrative Agent and Company of its inability to deliver any
such forms, certificates or other evidence.
(d) Company shall not be required to pay any additional
amount to any Non-US Lender under clause (c) of subsection
2.7B(ii) if such Lender shall have failed to satisfy the
requirements of clause (a), (b) or (c)(1) of this subsection
2.7B(iii); provided that if such Lender shall have satisfied the
requirements of subsection 2.7B(iii)(a) on the date such Lender
became a Lender, nothing in this subsection 2.7B(iii)(d) shall
relieve Company of its obligation to pay any amounts pursuant to
subsection 2.7B(ii)(c) in the event that, as a result of any
change in any applicable law, treaty or governmental rule,
regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer
properly entitled to deliver forms, certificates or other
evidence at a subsequent date establishing the fact that such
Lender is not subject to withholding as described in subsection
2.7B(iii)(a).
C. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have
determined that the adoption, effectiveness, phase-in or applicability after the
date hereof of any law, rule or regulation (or any provision thereof) regarding
capital adequacy, or any change therein or in the interpretation or
administration thereof by any Government Authority charged with the
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interpretation or administration thereof, or compliance by any Lender with any
guideline, request or directive regarding capital adequacy (whether or not
having the force of law) of any such Government Authority, has or would have the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of, or with reference to,
such Lender's Loans or Commitments or Letters of Credit or participations
therein or other obligations hereunder with respect to the Loans or the Letters
of Credit to a level below that which such Lender or such controlling
corporation could have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the policies of
such Lender or such controlling corporation with regard to capital adequacy),
then from time to time, within five Business Days after receipt by Company from
such Lender of the statement referred to in subsection 2.8A, Company shall pay
to such Lender such additional amount or amounts as will compensate such Lender
or such controlling corporation on an after-tax basis for such reduction.
2.8 STATEMENT OF LENDERS; OBLIGATION OF LENDERS AND ISSUING LENDERS
TO MITIGATE AND REIMBURSEMENT FOR RECOVERIES.
A. STATEMENTS. Each Lender claiming compensation or
reimbursement pursuant to subsection 2.6D, 2.7 or 2.8B shall deliver to Company
(with a copy to Administrative Agent) a written statement, setting forth in
reasonable detail the basis of the calculation of such compensation or
reimbursement, which statement shall be conclusive and binding upon all parties
hereto absent manifest error.
B. MITIGATION. Each Lender and Issuing Lender agrees that, as
promptly as practicable after the officer of such Lender or Issuing Lender
responsible for administering the Loans or Letters of Credit of such Lender or
Issuing Lender, as the case may be, becomes aware of the occurrence of an event
or the existence of a condition that would cause such Lender to become an
Affected Lender or that would entitle such Lender or Issuing Lender to receive
payments under subsection 2.7, use reasonable effort to make, issue, fund or
maintain the Commitments of such Lender or the Affected Loans or Letters of
Credit of such Lender or Issuing Lender through another lending or letter of
credit office of such Lender or Issuing Lender, if (i) as a result thereof the
circumstances which would cause such Lender to be an Affected Lender would cease
to exist or the additional amounts which would otherwise be required to be paid
to such Lender or Issuing Lender pursuant to subsection 2.7 would be materially
reduced and (ii) as determined by such Lender or Issuing Lender in its sole
discretion, such action would not otherwise be disadvantageous to such Lender or
Issuing Lender; provided that such Lender or Issuing Lender will not be
obligated to utilize such other lending or letter of credit office pursuant to
this subsection 2.8B unless Company agrees to pay all incremental expenses
incurred by such Lender or Issuing Lender as a result of utilizing such other
lending or letter of credit office as described above.
C. REIMBURSEMENT. Administrative Agent and each Lender agrees
that if it subsequently recovers, or receives a permanent net tax benefit with
respect to, any amount of Taxes (i) previously paid by it and as to which it has
been indemnified by or on behalf of Company or (ii) previously deducted by
Company as to which it has been indemnified by Company, Administrative Agent or
such Lender, as the case may be, shall reimburse Company
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to the extent of the amount of any such recovery or permanent net tax benefit
(but only to the extent of indemnity payments made, or additional amounts paid,
by or on behalf of Company under this subsection 2.8C with respect to the Taxes
giving rise to such recovery or tax benefit); provided, however, that Company,
upon the request of Administrative Agent or such Lender, agrees to repay to
Administrative Agent or such Lender, as the case may be, the amount paid over to
Company (together with any penalties, interest or other charges), in the event
Administrative Agent or such Lender is required to repay such amount to the
relevant taxing authority or other Government Authority. The determination by
Administrative Agent or any Lender of the amount of any such recovery or
permanent net tax benefit shall, in the absence of manifest error, be conclusive
and binding.
SECTION 3. LETTERS OF CREDIT
3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF
PARTICIPATIONS THEREIN.
A. LETTERS OF CREDIT. In addition to Company requesting that
Lenders make Revolving Loans pursuant to subsection 2.1A(ii) and that Swing Line
Lender make Swing Line Loans pursuant to subsection 2.1A(iii), Company may
request, in accordance with the provisions of this subsection 3.1, from time to
time during the period from the Closing Date to but excluding the 30th day prior
to the Revolving Loan Commitment Termination Date, that one or more Revolving
Lenders issue Letters of Credit payable on a sight basis for the account of
Company for the purposes specified in the definitions of Commercial Letters of
Credit and Standby Letters of Credit. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of
Company herein set forth, any one or more Lenders may, but (except as provided
in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit
in accordance with the provisions of this subsection 3.1; provided that Company
shall not request that any Revolving Lender issue (and no Revolving Lender shall
issue):
(i) any Letter of Credit if, after giving effect to such
issuance, the Total Utilization of Revolving Loan Commitments would
exceed the Revolving Loan Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such
issuance, the Letter of Credit Usage would exceed $5,000,000;
(iii) any Standby Letter of Credit having an expiration date
later than the earlier of (a) ten days prior to the Revolving Loan
Commitment Termination Date and (b) the date which is one year from the
date of issuance of such Standby Letter of Credit; provided that the
immediately preceding clause (b) shall not prevent any Issuing Lender
from agreeing that a Standby Letter of Credit will automatically be
extended for one or more successive periods not to exceed one year each
unless such Issuing Lender elects not to extend for any such additional
period; and provided, further that such Issuing Lender shall elect not
to extend such Standby Letter of Credit if it has knowledge that an
Event of Default has occurred and is continuing (and has not been waived
in accordance
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with subsection 10.6) at the time such Issuing Lender must elect whether
or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of
supporting (a) trade payables or (b) any Indebtedness constituting
"antecedent debt" (as that term is used in Section 547 of the Bankruptcy
Code);
(v) any Commercial Letter of Credit having an expiration date
(a) later than the earlier of (1) the date which is 30 days prior to the
Revolving Loan Commitment Termination Date and (2) the date which is 180
days from the date of issuance of such Commercial Letter of Credit or
(b) that is otherwise unacceptable to the applicable Issuing Lender in
its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than
Dollars.
B. MECHANICS OF ISSUANCE.
(i) Request for Issuance. Whenever Company desires the issuance
of a Letter of Credit, it shall deliver to Administrative Agent a
Request for Issuance no later than 1:00 P.M. (New York City time) at
least three Business Days (in the case of Standby Letters of Credit) or
five Business Days (in the case of Commercial Letters of Credit), or in
each case such shorter period as may be agreed to by the Issuing Lender
in any particular instance, in advance of the proposed date of issuance.
The Issuing Lender, in its reasonable discretion, may require changes in
the text of the proposed Letter of Credit or any documents described in
or attached to the Request for Issuance. No Letter of Credit shall
require payment against a conforming demand for payment to be made
thereunder on the same business day (under the laws of the jurisdiction
in which the office of the Issuing Lender to which such demand for
payment is required to be presented is located) that such demand for
payment is presented if such presentation is made after 10:00 A.M. (in
the time zone of such office of the Issuing Lender) on such business
day.
Company shall notify the applicable Issuing Lender (and
Administrative Agent, if Administrative Agent is not such Issuing
Lender) prior to the issuance of any Letter of Credit in the event that
any of the matters to which Company is required to certify in the
applicable Request for Issuance is no longer true and correct as of the
proposed date of issuance of such Letter of Credit, and upon the
issuance of any Letter of Credit Company shall be deemed to have
re-certified, as of the date of such issuance, as to the matters to
which Company is required to certify in the applicable Request for
Issuance.
(ii) Determination of Issuing Lender. Upon receipt by
Administrative Agent of a Request for Issuance pursuant to subsection
3.1B(i) requesting the issuance of a Letter of Credit, in the event
Administrative Agent elects to issue such Letter of Credit,
Administrative Agent shall promptly so notify Company, and
Administrative Agent shall be the Issuing Lender with respect thereto.
In the event that Administrative Agent, in its sole discretion, elects
not to issue such Letter of Credit, Administrative Agent shall
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promptly so notify Company, whereupon Company may request any other
Revolving Lender to issue such Letter of Credit by delivering to such
Revolving Lender a copy of the applicable Request for Issuance. Any
Revolving Lender so requested to issue such Letter of Credit shall
promptly notify Company and Administrative Agent whether or not, in its
sole discretion, it has elected to issue such Letter of Credit, and any
such Revolving Lender that so elects to issue such Letter of Credit
shall be the Issuing Lender with respect thereto. In the event that all
other Revolving Lenders shall have declined to issue such Letter of
Credit, notwithstanding the prior election of Administrative Agent not
to issue such Letter of Credit, Administrative Agent shall be obligated
to issue such Letter of Credit and shall be the Issuing Lender with
respect thereto, notwithstanding the fact that the Letter of Credit
Usage with respect to such Letter of Credit and with respect to all
other Letters of Credit issued by Administrative Agent, when aggregated
with Administrative Agent's outstanding Revolving Loans and Swing Line
Loans, may exceed Administrative Agent's Revolving Loan Commitment then
in effect.
(iii) Issuance of Letter of Credit. Upon satisfaction or waiver
(in accordance with subsection 10.6) of the conditions set forth in
subsection 4.3, the Issuing Lender shall issue the requested Letter of
Credit in accordance with the Issuing Lender's standard operating
procedures.
(iv) Notification to Revolving Lenders. Upon the issuance of or
amendment to any Standby Letter of Credit the applicable Issuing Lender
shall promptly notify Administrative Agent and Company of such issuance
or amendment in writing and such notice shall be accompanied by a copy
of such Letter of Credit or amendment. Upon receipt of such notice (or,
if Administrative Agent is the Issuing Lender, together with such
notice), Administrative Agent shall notify each Revolving Lender in
writing of such issuance or amendment and the amount of such Revolving
Lender's respective participation in such Standby Letter of Credit or
amendment, and, if so requested by a Revolving Lender, Administrative
Agent shall provide such Lender with a copy of such Letter of Credit or
amendment. In the case of Commercial Letters of Credit, in the event
that Issuing Lender is other than Administrative Agent, such Issuing
Lender will send by facsimile transmission to Administrative Agent,
promptly upon the first Business Day of each week, a report of its daily
aggregate maximum amount available for drawing under Commercial Letters
of Credit for the previous week. Administrative Agent shall notify each
Revolving Lender in writing on a quarterly basis of the contents of such
reports.
C. REVOLVING LENDERS' PURCHASE OF PARTICIPATIONS IN LETTERS OF
CREDIT. Immediately upon the issuance of each Letter of Credit, each Revolving
Lender shall be deemed to, and hereby agrees to, have irrevocably purchased from
the Issuing Lender a participation in such Letter of Credit and any drawings
honored thereunder in an amount equal to such Revolving Lender's Pro Rata Share
of the maximum amount which is or at any time may become available to be drawn
thereunder.
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3.2 LETTER OF CREDIT FEES.
Company agrees to pay the following amounts with respect to
Letters of Credit issued hereunder:
(i) with respect to each Standby Letter of Credit, (a) a
fronting fee, payable directly to the applicable Issuing Lender for its
own account, equal to the greater of (X) $500 and (Y) 0.25% per annum of
the daily amount available to be drawn under such Standby Letter of
Credit and (b) a letter of credit fee, payable to Administrative Agent
for the account of Revolving Lenders, equal to the applicable Eurodollar
Rate Margin for Revolving Loans multiplied by the daily amount available
to be drawn under such Standby Letter of Credit, each such fronting fee
or letter of credit fee to be payable in arrears on and to (but
excluding) the last Business Day of each March, June, September and
December of each year and computed on the basis of a 360-day year for
the actual number of days elapsed;
(ii) with respect to each Commercial Letter of Credit, (a) a
fronting fee, payable directly to the applicable Issuing Lender for its
own account, equal to the greater of (X) $500 and (Y) 0.25% per annum of
the daily amount available to be drawn under such Commercial Letter of
Credit and (b) a letter of credit fee, payable to Administrative Agent
for the account of Revolving Lenders, equal to the applicable Eurodollar
Rate Margin for Revolving Loans multiplied by the daily amount available
to be drawn under such Commercial Letter of Credit, each such fronting
fee or letter of credit fee to be payable in arrears on and to (but
excluding) the last Business Day of each March, June, September and
December of each year and computed on the basis of a 360-day year for
the actual number of days elapsed; and
with respect to the issuance, amendment or transfer of each Letter of Credit and
each payment of a drawing made thereunder (without duplication of the fees
payable under clauses (i) and (ii) above), documentary and processing charges
payable directly to the applicable Issuing Lender for its own account in
accordance with such Issuing Lender's standard schedule for such charges in
effect at the time of such issuance, amendment, transfer or payment, as the case
may be.
(iii) For purposes of calculating any fees payable under clauses
(i) and (ii) of this subsection 3.2, the daily amount available to be
drawn under any Letter of Credit shall be determined as of the close of
business on any date of determination. Promptly upon receipt by
Administrative Agent of any amount described in clause (i)(b) or (ii)(b)
of this subsection 3.2, Administrative Agent shall distribute to each
Revolving Lender its Pro Rata Share of such amount.
3.3 DRAWINGS AND REIMBURSEMENT OF AMOUNTS PAID UNDER LETTERS OF
CREDIT.
A. RESPONSIBILITY OF ISSUING LENDER WITH RESPECT TO DRAWINGS. In
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to examine the
documents delivered under such
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Letter of Credit with reasonable care so as to ascertain whether they appear on
their face to be in accordance with the terms and conditions of such Letter of
Credit.
B. REIMBURSEMENT BY COMPANY OF AMOUNTS PAID UNDER LETTERS OF
CREDIT. In the event an Issuing Lender has determined to honor a drawing under a
Letter of Credit issued by it, such Issuing Lender shall immediately notify
Company and Administrative Agent, and Company shall reimburse such Issuing
Lender on or before the Business Day immediately following the date on which
such drawing is honored (the "REIMBURSEMENT DATE") in an amount in Dollars and
in same day funds equal to the amount of such payment; provided that, anything
contained in this Agreement to the contrary notwithstanding, (i) unless Company
shall have notified Administrative Agent and such Issuing Lender prior to 12:00
Noon (New York City time) on the date such drawing is honored that Company
intends to reimburse such Issuing Lender for the amount of such payment with
funds other than the proceeds of Revolving Loans, Company shall be deemed to
have given a timely Notice of Borrowing to Administrative Agent requesting
Revolving Lenders to make Revolving Loans that are Base Rate Loans on the
Reimbursement Date in an amount in Dollars equal to the amount of such payment
and (ii) subject to satisfaction or waiver of the conditions specified in
subsection 4.2B, Revolving Lenders shall, on the Reimbursement Date, make
Revolving Loans that are Base Rate Loans in the amount of such payment, the
proceeds of which shall be applied directly by Administrative Agent to reimburse
such Issuing Lender for the amount of such payment; and provided, further that
if for any reason proceeds of Revolving Loans are not received by such Issuing
Lender on the Reimbursement Date in an amount equal to the amount of such
payment, Company shall reimburse such Issuing Lender, on demand, in an amount in
same day funds equal to the excess of the amount of such payment over the
aggregate amount of such Revolving Loans, if any, which are so received. Nothing
in this subsection 3.3B shall be deemed to relieve any Revolving Lender from its
obligation to make Revolving Loans on the terms and conditions set forth in this
Agreement, and Company shall retain any and all rights it may have against any
Revolving Lender resulting from the failure of such Revolving Lender to make
such Revolving Loans under this subsection 3.3B.
C. PAYMENT BY LENDERS OF UNREIMBURSED AMOUNTS PAID UNDER LETTERS
OF CREDIT.
(i) Payment by Revolving Lenders. In the event that Company
shall fail for any reason to reimburse any Issuing Lender as provided in
subsection 3.3B in an amount equal to the amount of any payment by such
Issuing Lender under a Letter of Credit issued by it, such Issuing
Lender shall promptly notify Administrative Agent and Administrative
Agent shall notify each other Revolving Lender of the unreimbursed
amount of such honored drawing and of such other Revolving Lender's
respective participation therein based on such Revolving Lender's Pro
Rata Share. Each Revolving Lender (other than Issuing Lender) shall make
available to Administrative Agent an amount equal to its respective
participation, in Dollars and in same day funds, at the Funding and
Payment Office, not later than 2:00 P.M. (New York City time) on the
first Business Day after the date notified by Administrative Agent and
Administrative Agent shall make available to Issuing Lender, in Dollars
and in same day funds, at the office of such Issuing Lender on such
Business Day, the aggregate amount of the participation
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payments so received by Administrative Agent. In the event that any
Revolving Lender fails to make available to Administrative Agent on such
Business Day the amount of such Revolving Lender's participation in such
Letter of Credit as provided in this subsection 3.3C, such Issuing
Lender shall be entitled to recover such amount on demand from such
Revolving Lender together with interest thereon at the Federal Funds
Effective Rate. Nothing in this subsection 3.3C shall be deemed to
prejudice the right of Administrative Agent to recover for the benefit
of Revolving Lenders from any Issuing Lender any amounts made available
to such Issuing Lender pursuant to this subsection 3.3C in the event
that it is determined by the final judgment of a court of competent
jurisdiction that the payment with respect to a Letter of Credit by such
Issuing Lender in respect of which such participation payments were made
by Revolving Lenders constituted gross negligence or willful misconduct
on the part of such Issuing Lender.
(ii) Distribution to Lenders of Reimbursements Received From
Company. In the event any Issuing Lender shall have been reimbursed by
other Revolving Lenders pursuant to subsection 3.3C(i) for all or any
portion of any payment by such Issuing Lender under a Letter of Credit
issued by it, and Administrative Agent or such Issuing Lender thereafter
receives any payments from Company in reimbursement of such payment
under the Letter of Credit Administrative Agent shall distribute, or in
the case of payments received by such Issuing Lender, such Issuing
Lender shall distribute to Administrative Agent and Administrative Agent
shall distribute, to each Revolving Lender that has paid all amounts
payable by it under subsection 3.3C(i) with respect to such payment such
Revolving Lender's Pro Rata Share of all such payments subsequently
received by Administrative Agent or by such Issuing Lender from Company.
Any such distribution shall be made to a Revolving Lender at its primary
address set forth below its name on the appropriate signature page
hereof or at such other address as such Revolving Lender may request.
D. INTEREST ON AMOUNTS PAID UNDER LETTERS OF CREDIT.
(i) Payment of Interest by Company. Company agrees to pay to
Administrative Agent, with respect to payments under any Letters of
Credit issued by an Issuing Lender, interest on the amount paid by such
Issuing Lender in respect of each such payment from the date a drawing
is honored to but excluding the date such amount is reimbursed by
Company (including any such reimbursement out of the proceeds of
Revolving Loans pursuant to subsection 3.3B) at a rate equal to (a) for
the period from the date such drawing is honored to but excluding the
Reimbursement Date, the rate then in effect under this Agreement with
respect to Revolving Loans that are Base Rate Loans and (b) thereafter,
a rate which is 2% per annum in excess of the rate of interest otherwise
payable under this Agreement with respect to Revolving Loans that are
Base Rate Loans. Interest payable pursuant to this subsection 3.3D(i)
shall be computed on the basis of a 360-day year for the actual number
of days elapsed in the period during which it accrues and shall be
payable on demand or, if no demand is made, on the date on which the
related drawing under a Letter of Credit is reimbursed in full.
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(ii) Distribution of Interest Payments by Administrative Agent.
Promptly upon receipt by Administrative Agent of any payment of interest
pursuant to subsection 3.3D(i) with respect to a payment under a Letter
of Credit, (a) Administrative Agent shall distribute to (x) each
Revolving Lender, out of the interest received by Administrative Agent
in respect of the period from the date such drawing is honored to but
excluding the date on which such Issuing Lender is reimbursed for the
amount of such payment (including any such reimbursement out of the
proceeds of Revolving Loans pursuant to subsection 3.3B), the amount
that such Revolving Lender would have been entitled to receive in
respect of the letter of credit fee that would have been payable in
respect of such Letter of Credit for such period pursuant to subsection
3.2 if no drawing had been honored under such Letter of Credit and (y)
to Issuing Lender the amount, if any, remaining after payment of the
amounts applied pursuant to the immediately preceding clause (x), and
(b) in the event such Issuing Lender shall have been reimbursed by other
Revolving Lenders pursuant to subsection 3.3C(i) for all or any portion
of such payment, Administrative Agent shall distribute to each Revolving
Lender (including Issuing Lender) that has paid all amounts payable by
it under subsection 3.3C(i) with respect to such payment such Revolving
Lender's Pro Rata Share of any interest received by Administrative Agent
in respect of that portion of such payment so made by Revolving Lenders
for the period from the date on which such Issuing Lender was so
reimbursed by other Revolving Lenders to but excluding the date on which
such portion of such payment is reimbursed by Company. Any such
distribution shall be made to a Revolving Lender at its primary address
set forth below its name on the appropriate signature page hereof or at
such other address as such Revolving Lender may request.
3.4 OBLIGATIONS ABSOLUTE.
The obligation of Company to reimburse each Issuing Lender for
payments under the Letters of Credit issued by it and to repay any Revolving
Loans made by Revolving Lenders pursuant to subsection 3.3B and the obligations
of Revolving Lenders under subsection 3.3C(i) shall be unconditional and
irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances including any of the following circumstances:
(i) any lack of validity or enforceability of any Letter of
Credit;
(ii) the existence of any claim, set-off, defense or other right
which Company or any Lender may have at any time against a beneficiary
or any transferee of any Letter of Credit (or any Persons for whom any
such transferee may be acting), any Issuing Lender or other Revolving
Lender or any other Person or, in the case of a Revolving Lender,
against Company, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transaction (including
any underlying transaction between Company or one of its Subsidiaries
and the beneficiary for which any Letter of Credit was procured);
(iii) any draft or other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
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(iv) payment by the applicable Issuing Lender under any Letter
of Credit against presentation of a draft or other document which does
not substantially comply with the terms of such Letter of Credit;
(v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company or
any of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document by
any party thereto;
(vii) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing;
provided, in each case, that payment by the applicable Issuing Lender under the
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing Lender under the circumstances in question
(as determined by a final judgment of a court of competent jurisdiction).
3.5 INDEMNIFICATION; NATURE OF ISSUING LENDERS' DUTIES.
A. INDEMNIFICATION. In addition to amounts payable as provided
in subsection 2.7, Company hereby agrees to protect, indemnify, pay and save
harmless each Issuing Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of outside counsel and allocated costs of
internal counsel) which such Issuing Lender may incur or be subject to as a
consequence, direct or indirect, of (i) the issuance of any Letter of Credit by
such Issuing Lender, other than as a result of (a) the gross negligence or
willful misconduct of such Issuing Lender as determined by a final judgment of a
court of competent jurisdiction or (b) subject to the following clause (ii), the
wrongful dishonor by such Issuing Lender of a proper demand for payment made
under any Letter of Credit issued by it or (ii) the failure of such Issuing
Lender to honor a drawing under any such Letter of Credit as a result of any act
or omission, whether rightful or wrongful, of any present or future de jure or
de facto Government Authority.
B. NATURE OF ISSUING LENDERS' DUTIES. As between Company and any
Issuing Lender, Company assumes all risks of the acts and omissions of, or
misuse of the Letters of Credit issued by such Issuing Lender by, the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation of
the foregoing, such Issuing Lender shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any
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reason; (iii) failure of the beneficiary of any such Letter of Credit to comply
fully with any conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in transmission or delivery of
any messages, by mail, cable, telegraph, telex or otherwise, whether or not they
be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or
delay in the transmission or otherwise of any document required in order to make
a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit of the proceeds
of any drawing under such Letter of Credit; or (viii) any consequences arising
from causes beyond the control of such Issuing Lender, including any act or
omission by a Government Authority specified in subsection 3.5A, and none of the
above shall affect or impair, or prevent the vesting of, any of such Issuing
Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the
specific provisions set forth in the first paragraph of this subsection 3.5B,
any action taken or omitted by any Issuing Lender under or in connection with
the Letters of Credit issued by it or any documents and certificates delivered
thereunder, if taken or omitted in good faith, shall not put such Issuing Lender
under any resulting liability to Company.
Notwithstanding anything to the contrary contained in this
subsection 3.5, Company shall retain any and all rights it may have against any
Issuing Lender for any liability arising solely out of the gross negligence or
willful misconduct of such Issuing Lender, as determined by a final judgment of
a court of competent jurisdiction.
SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the issuance of
Letters of Credit hereunder are subject to the satisfaction of the following
conditions.
4.1 CONDITIONS TO TERM LOANS AND INITIAL REVOLVING LOANS AND SWING
LINE LOANS.
The obligations of Lenders to make the Term Loans and any
Revolving Loans and Swing Line Loans to be made on the Closing Date are, in
addition to the conditions precedent specified in subsection 4.2, subject to
prior or concurrent satisfaction of the following conditions:
A. LOAN PARTY DOCUMENTS. On or before the Closing Date, Company
shall, and shall cause each other Loan Party to, deliver to Lenders (or to
Administrative Agent with sufficient originally executed copies, where
appropriate, for each Lender) the following with respect to Company or such Loan
Party, as the case may be, each, unless otherwise noted, dated the Closing Date:
(i) Copies of the Organizational Documents of such Person,
certified by the Secretary of State of its jurisdiction of organization
or, if such document is of a type that may not be so certified,
certified by the secretary or similar officer of the applicable Loan
Party, together with a good standing certificate from the Secretary of
State of its
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jurisdiction of organization and each other state in which such Person
is qualified to do business and, to the extent generally available, a
certificate or other evidence of good standing as to payment of any
applicable franchise or similar taxes from the appropriate taxing
authority of each of such jurisdictions, each dated a recent date prior
to the Closing Date;
(ii) Resolutions of the Governing Body of such Person approving
and authorizing the execution, delivery and performance of the Loan
Documents to which it is a party, certified as of the Closing Date by
the secretary or similar officer of such Person as being in full force
and effect without modification or amendment;
(iii) Signature and incumbency certificates of the officers of
such Person executing the Loan Documents to which it is a party;
(iv) Executed originals of the Loan Documents to which such
Person is a party; and
(v) Such other documents as Administrative Agent may reasonably
request.
B. FEES. Company shall have paid to Administrative Agent, for
distribution (as appropriate) to Administrative Agent and Lenders, the fees
payable on the Closing Date referred to in subsection 2.3.
C. CORPORATE STRUCTURE. The corporate organizational structure
of Company and its Subsidiaries shall be as set forth on Schedule 4.1C annexed
hereto.
D. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF AGREEMENTS.
Company shall have delivered to Administrative Agent an Officer's Certificate,
in form and substance satisfactory to Administrative Agent, to the effect that
the representations and warranties in Section 5 are true, correct and complete
in all material respects on and as of the Closing Date; that Company has
performed in all material respects all agreements and has satisfied all
conditions which this Agreement provides shall be performed or satisfied by it
on or before the Closing Date except as otherwise disclosed to and agreed to in
writing by Administrative Agent; and that since December 31, 2000, there has
been no Material Adverse Effect and there exists no event, condition or state of
facts which could reasonably be expected to result in a Material Adverse Effect
other than those disclosed in documents filed by Company with the Securities and
Exchange Commission on or prior to August 14, 2001.
E. FINANCIAL STATEMENTS; PRO FORMA FINANCIAL STATEMENTS. On or
before the Closing Date, Lenders shall have received from Company (i) audited
financial statements of Company and its Subsidiaries, including balance sheets
and income and cash flow statements, as of the end of and for each of the last
two fiscal years ended December 31, 1999 and December 31, 2000, (ii) unaudited
financial statements for the fiscal quarters ended March 31, 2001, and June 30,
2001, (iii) pro forma consolidated balance sheet and income statement, giving
effect to the refinancing of the Existing Credit Agreement and related
transactions, and (iv) projected financial statements (including balance sheets
and income and cash flow statements) of
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Company and its Subsidiaries for the period ending December 31, 2005, all of the
foregoing to be (x) substantially consistent with any financial statements for
the same periods delivered to the Administrative Agent prior to August 14, 2001,
and, in the case of any such financial statements for subsequent periods,
substantially consistent with any projected financial results for such periods
delivered to the Administrative Agent prior to August 14, 2001, and (y)
otherwise in form and substance satisfactory to Administrative Agent and the
Lenders.
F. OPINIONS OF COUNSEL TO LOAN PARTIES. Lenders shall have
received originally executed copies of one or more favorable written opinions of
▇▇▇▇▇▇ & ▇▇▇▇, PC, counsel for Loan Parties, and of ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Coke, L.L.P., special FCC counsel for Loan Parties, in form and
substance reasonably satisfactory to Administrative Agent and its counsel, dated
as of the Closing Date and setting forth substantially the matters in the
opinions designated in Exhibit IX-A and Exhibit IX-B annexed hereto and as to
such other matters as Administrative Agent acting on behalf of Lenders may
reasonably request (this Credit Agreement constituting a written request by
Company to such counsel to deliver such opinions to Lenders).
G. OPINIONS OF ADMINISTRATIVE AGENT'S COUNSEL. Lenders shall
have received originally executed copies of one or more favorable written
opinions of O'Melveny & ▇▇▇▇▇ LLP, counsel to Administrative Agent, dated as of
the Closing Date, substantially in the form of Exhibit X annexed hereto.
H. SOLVENCY ASSURANCES. On the Closing Date, Administrative
Agent and Lenders shall have received an Officer's Certificate of Company dated
the Closing Date, substantially in the form of Exhibit XII annexed hereto and
with appropriate attachments, in each case demonstrating that, after giving
effect to the consummation of the transactions contemplated by the Loan
Documents, Loan Parties, on a consolidated basis, will be Solvent.
I. EVIDENCE OF INSURANCE. Administrative Agent shall have
received a certificate from Company's insurance broker or other evidence
satisfactory to it that all insurance required to be maintained pursuant to
subsection 6.4 is in full force and effect and that Administrative Agent on
behalf of Lenders has been named as additional insured and/or loss payee
thereunder to the extent required under subsection 6.4.
J. NECESSARY GOVERNMENTAL AUTHORIZATIONS AND CONSENTS;
EXPIRATION OF WAITING PERIODS, ETC. Company shall have obtained all Governmental
Authorizations and all consents of other Persons, in each case that are
necessary or advisable in connection with the transactions contemplated by the
Loan Documents and the continued operation of the business conducted by Company
and its Subsidiaries in substantially the same manner as conducted prior to the
Closing Date. Each such Governmental Authorization or consent shall be in full
force and effect, except in a case where the failure to obtain or maintain a
Governmental Authorization or consent, either individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect. All
applicable waiting periods shall have expired without any action being taken or
threatened by any competent authority that would restrain, prevent or otherwise
impose adverse conditions on the transactions contemplated by the Loan Documents
or the financing thereof. No action, request for stay, petition for review or
rehearing, reconsideration,
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or appeal with respect to any of the foregoing shall be pending, and the time
for any applicable Government Authority to take action to set aside its consent
on its own motion shall have expired.
K. AMENDMENTS TO GULFSTREAM LEASE AND KEYCORP LEASE.
Administrative Agent shall have received a fully executed amendment to each of
the Gulfstream Lease and KeyCorp Lease waiving any existing defaults under such
Gulfstream Lease and KeyCorp Lease and amending any references to the Existing
Credit Agreement in such Gulfstream Lease and KeyCorp Lease to this Agreement,
in form and substance satisfactory to Administrative Agent in its reasonable
discretion.
L. SECURITY INTERESTS IN PERSONAL AND MIXED PROPERTY.
Administrative Agent shall have received evidence satisfactory to it that
Company and Subsidiary Guarantors shall have taken or caused to be taken all
such actions, executed and delivered or caused to be executed and delivered all
such agreements, documents and instruments, and made or caused to be made all
such filings and recordings (other than the filing or recording of items
described in clauses (ii), (iii) and (iv) below) that may be necessary or, in
the opinion of Administrative Agent, desirable in order to create in favor of
Administrative Agent, for the benefit of Lenders, a valid and (upon such filing
and recording) perfected First Priority security interest in the entire personal
and mixed property Collateral. Such actions shall include the following:
(i) Stock Certificates and Instruments. Delivery to
Administrative Agent of (a) certificates (which certificates shall be
accompanied by irrevocable undated stock powers, duly endorsed in blank
and otherwise satisfactory in form and substance to Administrative
Agent) representing all Capital Stock pledged pursuant to the Security
Agreement and (b) all promissory notes or other instruments (duly
endorsed, where appropriate, in a manner satisfactory to Administrative
Agent) evidencing any Collateral;
(ii) Lien Searches and UCC Termination Statements. Delivery to
Administrative Agent of (a) the results of a recent search, by a Person
satisfactory to Administrative Agent, of all effective UCC financing
statements which may have been made with respect to any personal
property of any Loan Party, together with copies of all such filings
disclosed by such search, and (b) UCC termination statements duly
executed by all applicable Persons for filing in all applicable
jurisdictions as may be necessary to terminate any effective UCC
financing statements disclosed in such search (other than any such
financing statements in respect of Liens permitted to remain outstanding
pursuant to the terms of this Agreement).
(iii) UCC Financing Statements and Fixture Filings. Delivery to
Administrative Agent of UCC financing statements and, where appropriate,
fixture filings, duly executed by each applicable Loan Party with
respect to all personal and mixed property Collateral of such Loan
Party, for filing in all jurisdictions as may be necessary or, in the
opinion of Administrative Agent, desirable to perfect the security
interests created in such Collateral pursuant to the Collateral
Documents;
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(iv) PTO Cover Sheets, Etc. Delivery to Administrative Agent of
all cover sheets or other documents or instruments required to be filed
with the PTO in order to create or perfect Liens in respect of any IP
Collateral; and
(v) Opinions of Local Counsel. Upon Administrative Agent's
request, delivery to Administrative Agent of an opinion of counsel
(which counsel shall be reasonably satisfactory to Administrative Agent)
under the laws of each jurisdiction in which any Loan Party or any
personal or mixed property Collateral is located with respect to the
creation and perfection of the security interests in favor of
Administrative Agent in such Collateral and such other matters governed
by the laws of such jurisdiction regarding such security interests as
Administrative Agent may reasonably request, in each case in form and
substance reasonably satisfactory to Administrative Agent.
M. MATTERS RELATING TO EXISTING INDEBTEDNESS OF COMPANY AND ITS
SUBSIDIARIES.
(i) Termination of Existing Credit Agreements and Related Liens;
Existing Letters of Credit. On the Closing Date, Company and its
Subsidiaries shall have (a) repaid in full all Indebtedness outstanding
under the Existing Credit Agreements (the aggregate principal amount of
which Indebtedness (including letters of credit) shall not exceed
$28,000,000), (b) terminated any commitments to lend or make other
extensions of credit thereunder, (c) delivered to Administrative Agent
all documents or instruments necessary to release all Liens securing
Indebtedness or other obligations of Company and its Subsidiaries
thereunder (other than those permitted pursuant to subsection 7.2A), and
(d) made arrangements satisfactory to Administrative Agent with respect
to the Existing Letters of Credit.
(ii) Existing Indebtedness to Remain Outstanding. Administrative
Agent shall have received an Officer's Certificate of Company stating
that, after giving effect to the transactions described in this
subsection 4.1M, the Indebtedness of Loan Parties (other than
Indebtedness under the Loan Documents) shall consist of (a)
approximately (but in no event more than) $200,000,000 in aggregate
principal amount of Company's outstanding 9.00% Senior Subordinated
Notes due 2009 and (b) Indebtedness in an aggregate amount not to exceed
$3,000,000 on Schedule 7.1 annexed hereto. The terms and conditions of
all such Indebtedness shall be in form and in substance satisfactory to
Administrative Agent.
N. COMPLETION OF SYNDICATION. The Term Loan Commitments and the
Revolving Loan Commitments in the aggregate principal amounts of $100,000,000
and $20,000,000, respectively, shall have been successfully syndicated to
financial institutions satisfactory to Administrative Agent.
O. LIQUIDITY. After giving effect to the refinancing of the
Existing Credit Agreement and the consummation of the transactions contemplated
hereby, the sum of Borrower's cash and cash equivalents shall not be less than
$64,000,000, including $54,000,000 deposited in the Securities Accounts.
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P. COMPLETION OF PROCEEDINGS. All corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel
shall be satisfactory in form and substance to Administrative Agent and such
counsel, and Administrative Agent and such counsel shall have received all such
counterpart originals or certified copies of such documents as Administrative
Agent may reasonably request.
4.2 CONDITIONS TO ALL LOANS.
The obligations of Lenders to make Loans on each Funding Date
are subject to the following further conditions precedent:
A. Administrative Agent shall have received before that Funding
Date, in accordance with the provisions of subsection 2.1B, an originally
executed Notice of Borrowing, in each case signed by a duly authorized Officer
of Company.
B. As of that Funding Date:
(i) The representations and warranties contained herein and in
the other Loan Documents shall be true, correct and complete in all
material respects on and as of that Funding Date to the same extent as
though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date,
in which case such representations and warranties shall have been true,
correct and complete in all material respects on and as of such earlier
date; provided, that where a representation and warranty is already
qualified as to materiality, such materiality qualifier shall be
disregarded for purposes of this condition;
(ii) No event shall have occurred and be continuing or would
result from the consummation of the borrowing contemplated by such
Notice of Borrowing that would constitute an Event of Default or a
Potential Event of Default;
(iii) Each Loan Party shall have performed in all material
respects all agreements and satisfied all conditions which this
Agreement provides shall be performed or satisfied by it on or before
that Funding Date;
(iv) No order, judgment or decree of any arbitrator or
Government Authority shall purport to enjoin or restrain any Lender from
making the Loans to be made by it on that Funding Date; and
(v) Company shall have delivered such other certificates or
documents that Administrative Agent shall reasonably request, in form
and substance satisfactory to Administrative Agent.
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4.3 CONDITIONS TO LETTERS OF CREDIT.
The issuance of any Letter of Credit hereunder (whether or not
the applicable Issuing Lender is obligated to issue such Letter of Credit) is
subject to the following conditions precedent:
A. On or before the date of issuance of the initial Letter of
Credit pursuant to this Agreement, the initial Loans shall have been made.
B. On or before the date of issuance of such Letter of Credit,
Administrative Agent shall have received, in accordance with the provisions of
subsection 3.1B(i), an originally executed Request for Issuance (or a facsimile
copy thereof) in each case signed by a duly authorized Officer of Company,
together with all other information specified in subsection 3.1B(i) and such
other documents or information as the applicable Issuing Lender may reasonably
require in connection with the issuance of such Letter of Credit.
C. On the date of issuance of such Letter of Credit, all
conditions precedent described in subsection 4.2B shall be satisfied to the same
extent as if the issuance of such Letter of Credit were the making of a Loan and
the date of issuance of such Letter of Credit were a Funding Date.
SECTION 5. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to
make the Loans, to induce Issuing Lenders to issue Letters of Credit and to
induce Revolving Lenders to purchase participations therein, Company represents
and warrants to each Lender, on the date of this Agreement, on each Funding Date
and on the date of issuance of each Letter of Credit, that the following
statements are true, correct and complete:
5.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING, BUSINESS AND
SUBSIDIARIES.
A. ORGANIZATION AND POWERS. Each Loan Party is a corporation,
partnership, trust or limited liability company duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization as
specified in Schedule 5.1 annexed hereto. Each Loan Party has all requisite
power and authority to own and operate its properties, to carry on its business
as now conducted and as proposed to be conducted, to enter into the Loan
Documents to which it is a party and to carry out the transactions contemplated
thereby.
B. QUALIFICATION AND GOOD STANDING. Each Loan Party is qualified
to do business and in good standing in every jurisdiction where its assets are
located and wherever necessary to carry out its business and operations, except
in jurisdictions where the failures to be so qualified or in good standing,
individually or in the aggregate, has not had and could not reasonably be
expected to result in a Material Adverse Effect.
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C. CONDUCT OF BUSINESS. Company and its Subsidiaries are engaged
only in the businesses permitted to be engaged in pursuant to subsection 7.11.
D. SUBSIDIARIES. All of the Subsidiaries of Company and their
jurisdictions of organization are identified in Schedule 5.1 annexed hereto, as
said Schedule 5.1 may be supplemented from time to time pursuant to the
provisions of subsection 6.1(xiv). The Capital Stock of each of the Subsidiaries
of Company identified in Schedule 5.1 annexed hereto (as so supplemented) is
duly authorized, validly issued, fully paid and nonassessable and none of such
Capital Stock constitutes Margin Stock. Each of the Subsidiaries of Company
identified in Schedule 5.1 annexed hereto (as so supplemented) is a corporation,
partnership, trust or limited liability company duly organized, validly existing
and in good standing under the laws of its respective jurisdiction of
organization set forth therein, has all requisite power and authority to own and
operate its properties and to carry on its business as now conducted and as
proposed to be conducted, and is qualified to do business and in good standing
in every jurisdiction where its assets are located and wherever necessary to
carry out its business and operations, in each case except where failure to be
so qualified or in good standing or to have such power and authority,
individually or in the aggregate, has not had and could not reasonably be
expected to result in a Material Adverse Effect. Schedule 5.1 annexed hereto (as
so supplemented) correctly sets forth the ownership interest of Company and each
of its Subsidiaries in each of the Subsidiaries of Company identified therein.
E. FCC AND STATION MATTERS.
(i) Schedule 5.1 correctly describes each of the radio and
television broadcast stations owned by any Loan Party.
(ii) Schedule 5.1 correctly sets forth all of the FCC Licenses
(other than auxiliary service licenses) held by each Loan Party and its
Subsidiaries and correctly sets forth the expiration date, if any, of
each such FCC License. Each FCC License was duly and validly issued by
the FCC pursuant to procedures which comply with all requirements of
applicable law and no Loan Party has any knowledge of the occurrence of
any event or the existence of any circumstance which, in the reasonable
judgment of such Loan Party, is reasonably expected to lead to the
revocation of any FCC License. The Loan Parties have the right to use
all FCC Licenses required in the ordinary course of business for the
Stations and each such FCC License is in full force and effect and the
Loan Parties are in material compliance therewith with no known conflict
with the valid rights of others. No event has occurred which permits, or
after notice or lapse of any applicable cure period or both would
permit, the revocation, modification or restriction of any FCC License
in any material respect. From and after the time required by subsection
6.11, each FCC License will be held by a License Sub.
(iii) Each Loan Party has duly filed in a timely manner all
filings which are required to be filed by such Loan Party under the
Communications Act and is in all material respects in compliance with
the Communications Act, including, without limitation, the rules and
regulations of the FCC relating to the broadcast of radio and television
signals.
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(iv) None of the Facilities (including without limitation, the
transmitter and tower sites owned or used by any Loan Party) violate in
any material respect the provisions of any applicable building codes,
fire regulations, building restrictions or other governmental
ordinances, orders or regulations and each such Facility is zoned so as
to permit the commercial uses intended by the owner or occupier thereof
and there are no outstanding variances or special use permits materially
affecting any of the Facilities or the uses thereof.
(v) Schedule 5.1 correctly describes each LMA to which any Loan
Party is a party and sets forth the termination date and amounts payable
thereunder. Each such LMA is in full force and effect, is in compliance
with the Communications Act, and the Loan Parties are in substantial
compliance with each such LMA to the extent each is a party thereto. No
such LMA applies to any Station or restricts the operation or
programming of any Station, and the Loan Parties act as "programmer" or
in a similar capacity with respect to each such LMA.
5.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION OF BORROWING. The execution, delivery and
performance of the Loan Documents have been duly authorized by all necessary
action on the part of each Loan Party that is a party thereto.
B. NO CONFLICT. The execution, delivery and performance by Loan
Parties of the Loan Documents to which they are parties and the consummation of
the transactions contemplated by the Loan Documents do not and will not (i)
violate any provision of any law or any governmental rule or regulation
applicable to Company or any of its Subsidiaries, the Organizational Documents
of Company or any of its Subsidiaries or any order, judgment or decree of any
court or other Government Authority binding on Company or any of its
Subsidiaries or their respective assets and properties, (ii) conflict with,
result in a breach of or constitute (with due notice or lapse of time or both) a
default under any Contractual Obligation of Company or any of its Subsidiaries,
(iii) result in or require the creation or imposition of any Lien upon any of
the properties or assets of Company or any of its Subsidiaries (other than any
Liens created under any of the Loan Documents in favor of Administrative Agent
on behalf of Lenders), or (iv) require any approval of stockholders or any
approval or consent of any Person under any Contractual Obligation of Company or
any of its Subsidiaries, except for such approvals or consents which will be
obtained on or before the Closing Date and disclosed in writing to Lenders and
except, in each case, to the extent such violations, conflicts, Liens or
failures to obtain such approvals or consents, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
C. GOVERNMENTAL CONSENTS. The execution, delivery and
performance by Loan Parties of the Loan Documents to which they are parties and
the consummation of the transactions contemplated by the Loan Documents do not
and will not require any Governmental Authorization, except (i) Governmental
Authorizations the failure of which to obtain or make, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect and (ii) any filings of Uniform Commercial Code financing statements and
other
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instruments described on Schedule 4(i) to the Security Agreement necessary to
perfect the Liens created by the Collateral Documents.
D. BINDING OBLIGATION. Each of the Loan Documents has been duly
executed and delivered by each Loan Party that is a party thereto and is the
legally valid and binding obligation of such Loan Party, enforceable against
such Loan Party in accordance with its respective terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability.
5.3 FINANCIAL CONDITION.
Company has heretofore delivered to Lenders, at Lenders'
request, the financial statements and information set forth in subsection 4.1E.
All such statements other than pro forma financial statements were prepared in
conformity with GAAP and fairly present, in all material respects, the financial
position (on a consolidated basis) of the entities described in such financial
statements as at the respective dates thereof and the results of operations and
cash flows (on a consolidated basis) of the entities described therein for each
of the periods then ended, subject, in the case of any such unaudited financial
statements, to changes resulting from audit and normal year-end adjustments. No
Loan Party has (and will not have following the funding of the initial Loans)
any Contingent Obligation, contingent liability or liability for taxes,
long-term lease or unusual forward or long-term commitment that, as of the
Closing Date, is not reflected in the foregoing financial statements or the
notes thereto and, as of any Funding Date subsequent to the Closing Date, is not
reflected in the most recent financial statements delivered to Lenders pursuant
to subsection 6.1 or the notes thereto and that, in any such case, is material
in relation to the business, operations, properties, assets, condition
(financial or otherwise) or prospects of Company or any of its Subsidiaries on a
consolidated basis.
5.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED JUNIOR PAYMENTS.
Since August 14, 2001, no event or change has occurred that has
resulted in or evidences, either individually or in the aggregate, a Material
Adverse Effect. Neither Company nor any of its Subsidiaries has directly or
indirectly declared, ordered, paid or made, or set apart any sum or property
for, any Restricted Junior Payment or agreed to do so except as permitted by
subsection 7.5.
5.5 TITLE TO PROPERTIES; LIENS; REAL PROPERTY; INTELLECTUAL
PROPERTY.
A. TITLE TO PROPERTIES; LIENS. Company and its Subsidiaries have
(i) good, sufficient and legal title to (in the case of fee interests in real
property), (ii) valid leasehold interests in (in the case of leasehold interests
in real or personal property), or (iii) good title to (in the case of all other
personal property), all of their respective properties and assets reflected in
the financial statements referred to in subsection 5.3 or in the most recent
financial statements delivered pursuant to subsection 6.1, in each case except
for assets disposed of since the date of such financial statements in the
ordinary course of business or as otherwise permitted under
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subsection 7.7. Except as permitted by this Agreement, all such properties and
assets are free and clear of Liens.
B. REAL PROPERTY. As of the Closing Date, Schedule 5.5B annexed
hereto contains a true, accurate and complete list of (i) all fee interests in
any Real Property Assets and (ii) all leases, subleases or assignments of leases
(but not any amendments, modifications, supplements, renewals or extensions of
any thereof) affecting each Real Property Asset on which an antenna or tower is
located and substantially all other leases, subleases, or assignments of leases
(but not any amendments, modifications, supplements, renewals or extensions of
any thereof) affecting other Real Property Assets, in each case regardless of
whether a Loan Party is the landlord or tenant (whether directly or as an
assignee or successor in interest) under such lease, sublease or assignment.
Except as specified in Schedule 5.5B annexed hereto, each agreement listed in
clause (ii) of the immediately preceding sentence is in full force and effect
and Company does not have knowledge of any default that has occurred and is
continuing thereunder, and each such agreement constitutes the legally valid and
binding obligation of each applicable Loan Party and to the knowledge of the
Company each other party thereto, enforceable against such Loan Party or such
other party in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable principles, except to
the extent that any such default or lack of enforceability, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect. On or before the date set forth in subsection 6.12 for delivery of the
Post-Closing Date Mortgages, Company shall deliver to Administrative Agent an
updated Schedule 5.5B which includes all leases, subleases, or assignments of
leases not listed on the Schedule 5.5B delivered on the Closing Date and all
amendments, modifications or supplements to and renewals or extensions thereof
and of the leases, subleases and assignments of leases listed on the Schedule
5.5B delivered on the Closing Date.
C. INTELLECTUAL PROPERTY. As of the Closing Date, Company and
its Subsidiaries own or have the right to use, all Intellectual Property used in
the conduct of their business, except where the failure to own or have such
right to use in the aggregate could not reasonably be expected to result in a
Material Adverse Effect. No claim has been asserted and is pending by any Person
challenging or questioning the use of any such Intellectual Property or the
validity or effectiveness of any such Intellectual Property, nor does Company
know of any valid basis for any such claim except for such claims that
individually or in the aggregate could not reasonably be expected to result in a
Material Adverse Effect. The use of such Intellectual Property by Company and
its Subsidiaries does not infringe on the rights of any Person, except for such
claims and infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. All federal and
state and all foreign registrations of and applications for Intellectual
Property, and all unregistered Intellectual Property, that are owned or licensed
by Company or any of its Subsidiaries on the Closing Date are described on
Schedule 5.5C annexed hereto.
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5.6 LITIGATION; ADVERSE FACTS.
Except as set forth in the Form 10-K filed by the Company with
the Securities and Exchange Commission for the period ending December 31, 2000,
there are no Proceedings (whether or not purportedly on behalf of Company or any
of its Subsidiaries) at law or in equity, or before or by any court or other
Government Authority (including any Environmental Claims) that are pending or,
to the knowledge of Company, threatened against or affecting Company or any of
its Subsidiaries or any property of Company or any of its Subsidiaries and that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. Neither Company nor any of its Subsidiaries (i) is in
violation of any applicable laws (including Environmental Laws) that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect, or (ii) is subject to or in default with respect to any
final judgments, writs, injunctions, decrees, rules or regulations of any court
or other Government Authority, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.
5.7 PAYMENT OF TAXES.
Except to the extent permitted by subsection 6.3, all material
tax returns and reports of Company and its Subsidiaries required to be filed by
any of them have been timely filed, and all material taxes shown on such tax
returns to be due and payable and all material assessments, fees and other
governmental charges upon Company and its Subsidiaries and upon their respective
properties, assets, income, businesses and franchises that are due and payable
have been paid when due and payable. Company knows of no proposed material tax
assessment against Company or any of its Subsidiaries that is not being actively
contested by Company or such Subsidiary in good faith and by appropriate
proceedings; provided that such reserves or other appropriate provisions, if
any, as shall be required in conformity with GAAP shall have been made or
provided therefor.
5.8 PERFORMANCE OF MATERIAL CONTRACTS; MATERIALLY ADVERSE
AGREEMENTS.
A. Neither Company nor any of its Subsidiaries is in default in
the performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in any of its Material Contacts, and no condition exists
that, with the giving of notice or the lapse of any applicable cure period or
both, would constitute such a default, except where the consequences, direct or
indirect, of such default or defaults, if any, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
B. Neither Company nor any of its Subsidiaries is a party to or
is otherwise subject to any agreements or instruments or any charter or other
internal restrictions which, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect.
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5.9 GOVERNMENTAL REGULATION.
Neither Company nor any of its Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act or the Investment Company Act of 1940 or
under any other federal or state statute or regulation which may limit its
ability to incur Indebtedness or which may otherwise render all or any portion
of the Obligations unenforceable.
5.10 SECURITIES ACTIVITIES.
A. Neither Company nor any of its Subsidiaries 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.
B. Following application of the proceeds of each Loan, not more
than 25% of the value of the assets (either of Company only or of Company and
its Subsidiaries on a consolidated basis) subject to the provisions of
subsection 7.2 or 7.7 or subject to any restriction contained in any agreement
or instrument, between Company and any Lender or any Affiliate of any Lender,
relating to Indebtedness and within the scope of subsection 8.2, will be Margin
Stock.
5.11 EMPLOYEE BENEFIT PLANS.
A. Company, each of its Subsidiaries and each of their
respective ERISA Affiliates are in compliance with all applicable provisions and
requirements of ERISA and the regulations and published interpretations
thereunder with respect to each Employee Benefit Plan, and have performed all
their obligations under each Employee Benefit Plan. Each Employee Benefit Plan
that is intended to qualify under Section 401(a) of the Internal Revenue Code is
so qualified.
B. No ERISA Event has occurred or is reasonably expected to
occur, except that Company retains potential secondary liability for withdrawal
liability under Section 4204 of ERISA in connection with the sale of the Seattle
Supersonics National Basketball Association franchise if the purchaser withdraws
from the NBA plans within five years, in an amount not expected to be in excess
of $3,000,000.
C. Except to the extent required under Section 4980B of the
Internal Revenue Code, no Employee Benefit Plan provides health or welfare
benefits (through the purchase of insurance or otherwise) for any retired or
former employee of Company, any of its Subsidiaries or any of their respective
ERISA Affiliates, but certain executives of Company may be provided
post-termination coverage under the Company's health plan pursuant to the terms
of their contracts.
D. As of the most recent valuation date for any Pension Plan,
the amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the
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aggregate for all Pension Plans (excluding for purposes of such computation any
Pension Plans with respect to which assets exceed benefit liabilities), does not
exceed $1,000,000.
E. To the Company's knowledge, the potential liability of
Company, its Subsidiaries and their respective ERISA Affiliates for a complete
withdrawal from all Multiemployer Plans (within the meaning of Section 4203 of
ERISA) to which the Company, its Subsidiaries or their respective ERISA
Affiliates contributes is not expected to exceed an amount in excess of
$1,000,000.
5.12 CERTAIN FEES.
No broker's or finder's fee or commission will be payable with
respect to this Agreement or any of the transactions contemplated hereby, and
Company hereby indemnifies Lenders against, and agrees that it will hold Lenders
harmless from, any claim, demand or liability for any such broker's or finder's
fees alleged to have been incurred in connection herewith or therewith and any
expenses (including reasonable fees, expenses and disbursements of counsel)
arising in connection with any such claim, demand or liability.
5.13 ENVIRONMENTAL PROTECTION.
Except for such exceptions as individually or in the aggregate
could not reasonably be expected to have a Material Adverse Effect:
(i) neither Company nor any of its Subsidiaries nor any of their
respective Facilities or operations are subject to any outstanding
written order, consent decree or settlement agreement with any Person
relating to (a) any Environmental Law, (b) any Environmental Claim, or
(c) any Hazardous Materials Activity;
(ii) neither Company nor any of its Subsidiaries has received
any letter or request for information under Section 104 of the
Comprehensive Environmental Response, Compensation, and Liability Act
(42 U.S.C. Section 9604) or any comparable state law;
(iii) there are and, to Company's knowledge, have been no
conditions, occurrences, or Hazardous Materials Activities that could
reasonably be expected to form the basis of an Environmental Claim
against Company or any of its Subsidiaries;
(iv) neither Company nor any of its Subsidiaries nor, to
Company's knowledge, any predecessor of Company or any of its
Subsidiaries has filed any notice under any Environmental Law indicating
past or present treatment of Hazardous Materials at any Facility, and
none of Company's or any of its Subsidiaries' operations involves the
generation, transportation, treatment, storage or disposal of hazardous
waste, as defined under 40 C.F.R. Parts 260-270 or any state equivalent;
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(v) Company and its Subsidiaries have been and are in compliance
with all current or reasonably foreseeable future requirements under
applicable Environmental Laws.
5.14 EMPLOYEE MATTERS.
There is no strike or work stoppage in existence or threatened
involving Company or any of its Subsidiaries that could reasonably be expected,
individually or in the aggregate for all such strikes or work stoppages, to
result in a Material Adverse Effect.
5.15 SOLVENCY.
Company and its Subsidiaries, taken as a whole, are and, upon
the incurrence of any Obligations by any Loan Party on any date on which this
representation is made, will be, Solvent.
5.16 MATTERS RELATING TO COLLATERAL.
A. CREATION, PERFECTION AND PRIORITY OF LIENS. The execution and
delivery of the Collateral Documents by Loan Parties, together with (i) the
actions taken pursuant to subsections 4.1L, 6.8, 6.9, and 6.12 and (ii) the
delivery to Administrative Agent of any Collateral not delivered to
Administrative Agent at the time of execution and delivery of the applicable
Collateral Document (all of which Collateral has been so delivered) are
effective to create in favor of Administrative Agent for the benefit of Lenders,
as security for the respective Secured Obligations (as defined in the applicable
Collateral Document in respect of any Collateral), a valid First Priority Lien
on all of the Collateral, and all filings and other actions necessary or
desirable to perfect and maintain the perfection and First Priority status of
such Liens have been duly made or taken and remain in full force and effect,
other than the filing of any UCC financing statements delivered to
Administrative Agent for filing (but not yet filed) and the periodic filing of
UCC continuation statements in respect of UCC financing statements filed by or
on behalf of Administrative Agent.
B. GOVERNMENTAL AUTHORIZATIONS. No authorization, approval or
other action by, and no notice to or filing with, any Government Authority is
required for either (i) the pledge or grant by any Loan Party of the Liens
purported to be created in favor of Administrative Agent pursuant to any of the
Collateral Documents or (ii) the exercise by Administrative Agent of any rights
or remedies in respect of any Collateral (whether specifically granted or
created pursuant to any of the Collateral Documents or created or provided for
by applicable law), except for filings or recordings contemplated by subsection
5.16A and except as may be required, in connection with the disposition of any
Collateral, by laws generally affecting the offering and sale of securities.
C. ABSENCE OF THIRD-PARTY FILINGS. Except such as may have been
filed in favor of Administrative Agent as contemplated by subsection 5.16A and
to evidence permitted lease obligations and other Liens permitted pursuant to
subsection 7.2, (i) no effective UCC financing statement, fixture filing or
other instrument similar in effect covering all or any part of
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the Collateral is on file in any filing or recording office and (ii) no
effective filing covering all or any part of the IP Collateral is on file in the
PTO.
D. MARGIN REGULATIONS. The pledge of the Collateral pursuant to
the Collateral Documents does not violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System.
E. INFORMATION REGARDING COLLATERAL. All information supplied to
Administrative Agent by or on behalf of any Loan Party with respect to any of
the Collateral (in each case taken as a whole with respect to any particular
Collateral) is accurate and complete in all material respects.
5.17 DISCLOSURE.
No representation or warranty of Company or any of its
Subsidiaries contained in any Loan Document or in any other document,
certificate or written statement furnished to Lenders by or on behalf of Company
or any of its Subsidiaries for use in connection with the transactions
contemplated by this Agreement contains any untrue statement of a material fact
or omits to state a material fact (known to Company, in the case of any document
not furnished by it) necessary in order to make the statements contained herein
or therein not misleading in light of the circumstances in which the same were
made. Any projections and pro forma financial information contained in such
materials are based upon good faith estimates and assumptions believed by
Company to be reasonable at the time made, it being recognized by Lenders that
such projections as to future events are not to be viewed as facts and that
actual results during the period or periods covered by any such projections may
differ from the projected results. There are no facts known (or which should
upon the reasonable exercise of diligence be known) to Company (other than
matters of a general economic nature and those disclosed in documents filed by
Company with the Securities and Exchange Commission on or before August 14,
2001) that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect and that have not been disclosed herein or
in such other documents, certificates and statements furnished to Lenders for
use in connection with the transactions contemplated hereby.
5.18 SUBORDINATED INDEBTEDNESS.
The Obligations constitute senior indebtedness that is entitled
to the benefits of the subordination provisions of all Subordinated Indebtedness
of Company and its Subsidiaries.
SECTION 6. COMPANY'S AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other Obligations and the cancellation or expiration of all
Letters of Credit, unless Requisite Lenders shall otherwise give prior written
consent, Company shall perform, and shall cause each of its Subsidiaries to
perform, all covenants in this Section 6.
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6.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Company will maintain, and cause each of its Subsidiaries to
maintain, a system of accounting established and administered in accordance with
sound business practices to permit preparation of financial statements on a
consolidated basis in conformity with GAAP. Company will deliver to
Administrative Agent (and Administrative Agent will deliver to Lenders):
(i) Events of Default, etc.: promptly upon any officer of
Company obtaining knowledge (a) of any condition or event that
constitutes an Event of Default or Potential Event of Default, or
becoming aware that any Lender has given any notice (other than to
Administrative Agent) or taken any other action with respect to a
claimed Event of Default or Potential Event of Default, (b) that any
Person has given any notice to Company or any of its Subsidiaries or
taken any other action with respect to a claimed default or event or
condition of the type referred to in subsection 8.2, or (c) of the
occurrence of any event or change that has caused or evidences, either
individually or in the aggregate, a Material Adverse Effect, an
Officer's Certificate specifying the nature and period of existence of
such condition, event or change, or specifying the notice given or
action taken by any such Person and the nature of such claimed Event of
Default, Potential Event of Default, default, event or condition, and
what action Company has taken, is taking and proposes to take with
respect thereto;
(ii) Quarterly Financials: as soon as available and in any event
within 45 days after the end of each of the first three Fiscal Quarters
of each Fiscal Year, beginning with the Fiscal Quarter ending September
30, 2001 (a) the consolidated balance sheets of Company and its
Subsidiaries as at the end of such fiscal period and the related
consolidated statements of income and cash flows of Company and its
Subsidiaries for such fiscal period and for the period from the
beginning of the then current Fiscal Year to the end of such fiscal
period, setting forth in each case in comparative form the corresponding
figures for the corresponding periods of the previous Fiscal Year and
the corresponding figures from the Financial Plan for the current Fiscal
Year, to the extent prepared for such fiscal period, all in reasonable
detail and certified by the chief financial officer of Company that they
fairly present, in all material respects, the financial condition of
Company and its Subsidiaries as at the dates indicated and the results
of their operations and their cash flows for the periods indicated,
subject to changes resulting from audit and normal year-end adjustments,
and (b) a narrative report describing the operations of Company and its
Subsidiaries in the form prepared for presentation to senior management
for such fiscal period and for the period from the beginning of the then
current Fiscal Year to the end of such fiscal period;
(iii) Year-End Financials: as soon as available and in any event
within 90 days after the end of each Fiscal Year, (a) the consolidated
balance sheets of Company and its Subsidiaries as at the end of such
Fiscal Year and the related consolidated statements of income,
stockholders' equity and cash flows of Company and its Subsidiaries for
such Fiscal Year, setting forth in each case in comparative form the
corresponding figures for the previous Fiscal Year and the corresponding
figures from the Financial Plan for the
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Fiscal Year covered by such financial statements, all in reasonable
detail and certified by the chief financial officer of Company that they
fairly present, in all material respects, the financial condition of
Company and its Subsidiaries as at the dates indicated and the results
of their operations and their cash flows for the periods indicated, (b)
a narrative report describing the operations of Company and its
Subsidiaries in the form prepared for presentation to senior management
for such Fiscal Year, and (c) in the case of such consolidated financial
statements, a report thereon of Ernst & Young LLP or other independent
certified public accountants of recognized national standing selected by
Company and satisfactory to Administrative Agent, which report shall be
unqualified, shall express no doubts about the ability of Company and
its Subsidiaries to continue as a going concern, and shall state that
such consolidated financial statements fairly present, in all material
respects, the consolidated financial position of Company and its
Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated in conformity
with GAAP applied on a basis consistent with prior years (except as
otherwise disclosed in such financial statements) and that the
examination by such accountants in connection with such consolidated
financial statements has been made in accordance with generally accepted
auditing standards;
(iv) Officer's and Compliance Certificates: together with each
delivery of financial statements of Company and its Subsidiaries
pursuant to subdivisions (ii) and (iii) above, (a) an Officer's
Certificate of Company stating that the signers have reviewed the terms
of this Agreement and have made, or caused to be made under their
supervision, a review in reasonable detail of the transactions and
condition of Company and its Subsidiaries during the accounting period
covered by such financial statements and that such review has not
disclosed the existence during or at the end of such accounting period,
and that the signers do not have knowledge of the existence as at the
date of such Officer's Certificate, of any condition or event that
constitutes an Event of Default or Potential Event of Default, or, if
any such condition or event existed or exists, specifying the nature and
period of existence thereof and what action Company has taken, is taking
and proposes to take with respect thereto; and (b) a Compliance
Certificate demonstrating in reasonable detail compliance during and at
the end of the applicable accounting periods with the restrictions
contained in Section 7 and setting forth Company's Consolidated Interest
Coverage Ratio, in each case to the extent compliance with such
restrictions is required to be tested at the end of the applicable
accounting period;
(v) Reconciliation Statements: if, as a result of any change in
accounting principles and policies from those used in the preparation of
the audited financial statements referred to in subsection 5.3, the
consolidated financial statements of Company and its Subsidiaries
delivered pursuant to subdivisions (ii), (iii) or (xii) of this
subsection 6.1 will differ in any material respect from the consolidated
financial statements that would have been delivered pursuant to such
subdivisions had no such change in accounting principles and policies
been made, then (a) together with the first delivery of financial
statements pursuant to subdivision (ii), (iii) or (xii) of this
subsection 6.1 following such change, consolidated financial statements
of Company and its
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Subsidiaries for (y) the current Fiscal Year to the effective date of
such change and (z) the Fiscal Year immediately preceding the Fiscal
Year in which such change is made, in each case prepared on a pro forma
basis as if such change had been in effect during such periods, and (b)
together with each delivery of financial statements pursuant to
subdivision (ii), (iii) or (xii) of this subsection 6.1 following such
change, if required pursuant to subsection 1.2, a written statement of
the chief accounting officer or chief financial officer of Company
setting forth the differences (including any differences that would
affect any calculations relating to the financial covenants set forth in
subsection 7.6) which would have resulted if such financial statements
had been prepared without giving effect to such change;
(vi) Accountants' Certification: together with each delivery of
consolidated financial statements of Company and its Subsidiaries
pursuant to subdivision (iii) above, a written statement by the
independent certified public accountants giving the report thereon (a)
stating that their audit examination has included a review of the terms
of this Agreement and the other Loan Documents as they relate to
accounting matters, (b) stating whether, in connection with their audit
examination, any condition or event that constitutes an Event of Default
or Potential Event of Default has come to their attention and, if such a
condition or event has come to their attention, specifying the nature
and period of existence thereof; provided that such accountants shall
not be liable by reason of any failure to obtain knowledge of any such
Event of Default or Potential Event of Default that would not be
disclosed in the course of their audit examination, and (c) stating that
based on their audit examination nothing has come to their attention
that causes them to believe either or both that the information
contained in the certificates delivered therewith pursuant to
subdivision (iv) above is not correct or that the matters set forth in
the Compliance Certificates delivered therewith pursuant to clause (b)
of subdivision (iv) above for the applicable Fiscal Year are not stated
in accordance with the terms of this Agreement;
(vii) Accountants' Reports: promptly upon receipt thereof
(unless restricted by applicable professional standards), copies of all
reports submitted to Company by independent certified public accountants
in connection with each annual, interim or special audit of the
financial statements of Company and its Subsidiaries made by such
accountants, including any management letters submitted by such
accountants to management in connection with their annual audit;
(viii) SEC Filings and Press Releases: promptly upon their
becoming available, copies of (a) all financial statements, reports,
notices and proxy statements sent or made available generally by Company
to its security holders or by any Subsidiary Guarantor to its security
holders other than Company or another Subsidiary of Company, (b) all
regular and periodic reports and all registration statements (other than
on Form S-8 or a similar form) and prospectuses, if any, filed by
Company or any of its Subsidiaries with any securities exchange or with
the Securities and Exchange Commission or any governmental or private
regulatory authority, and (c) all press releases and other statements
made available generally by Company or any of its Subsidiaries to the
public concerning material developments in the business of Company or
any of its Subsidiaries;
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(ix) Litigation or Other Proceedings: promptly upon any officer
of Company obtaining knowledge of (1) the institution of, or
non-frivolous threat of, any Proceeding against or affecting Company or
any of its Subsidiaries or any property of Company or any of its
Subsidiaries not previously disclosed in writing by Company to Lenders
or (2) any material development in any Proceeding that, in any case:
(x) would be required to be disclosed by Company
pursuant to the Exchange Act (such disclosures to be
made to Administrative Agent when required to be
disclosed pursuant to the Exchange Act); or
(y) seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain
relief as a result of, the transactions contemplated
hereby;
written notice thereof together with such other information as may be reasonably
available to Company to enable Lenders and their counsel to evaluate such
matters;
(x) ERISA Events: promptly upon becoming aware of the occurrence
of or forthcoming occurrence of any ERISA Event, a written notice
specifying the nature thereof, what action Company, any of its
Subsidiaries or any of their respective ERISA Affiliates has taken, is
taking or proposes to take with respect thereto and, when known, any
action taken or threatened by the Internal Revenue Service, the
Department of Labor or the PBGC with respect thereto;
(xi) ERISA Notices: with reasonable promptness, copies of (a)
all notices received by Company, any of its Subsidiaries or any of their
respective ERISA Affiliates from a Multiemployer Plan sponsor concerning
an ERISA Event; and (b) copies of such other documents or governmental
reports or filings relating to any Employee Benefit Plan as
Administrative Agent shall reasonably request;
(xii) Financial Plans: as soon as practicable and in any event
no later than 30 days after the beginning of each Fiscal Year, a
consolidated plan and financial forecast for such Fiscal Year and the
next succeeding Fiscal Years through Fiscal Year 2006 (the "FINANCIAL
PLAN" for such Fiscal Years), including (a) forecasted consolidated
balance sheets and forecasted consolidated statements of income and cash
flows of Company and its Subsidiaries for each such Fiscal Year,
together with pro forma Compliance Certificates for each such Fiscal
Year and an explanation of the assumptions on which such forecasts are
based, (b) forecasted consolidated statements of income and cash flows
of Company and its Subsidiaries for each month of the first such Fiscal
Year, together with an explanation of the assumptions on which such
forecasts are based, (c) the amount of forecasted unallocated overhead
for each such Fiscal Year, and (d) such other information and
projections as any Lender may reasonably request;
(xiii) Insurance: as soon as practicable after any material
change in insurance coverage maintained by Company and its Subsidiaries
notice thereof to Administrative Agent specifying the changes and
reasons therefor;
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(xiv) New Subsidiaries: promptly upon any Person becoming a
Subsidiary of Company, a written notice setting forth with respect to
such Person (a) the date on which such Person became a Subsidiary of
Company and (b) all of the data required to be set forth in Schedule 5.1
annexed hereto with respect to all Subsidiaries of Company (it being
understood that such written notice shall be deemed to supplement
Schedule 5.1 annexed hereto for all purposes of this Agreement);
(xv) Broadcasting Ratings: upon the request of Administrative
Agent or any Lender, all copies of subscribed Arbitron rating books
(winter, fall, spring, summer) with respect to the Stations, in a form
agreed upon by the Loan Parties and Administrative Agent; and
(xvi) Other Information: with reasonable promptness, such other
information and data with respect to Company or any of its Subsidiaries
as from time to time may be reasonably requested by any Lender.
6.2 EXISTENCE, ETC.
Except as permitted under subsection 7.7, Company will, and will
cause each of its Subsidiaries to, at all times preserve and keep in full force
and effect its existence and all rights and franchises material to its business;
except to the extent the failure to do so could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
6.3 PAYMENT OF TAXES AND CLAIMS; TAX.
A. Company will, and will cause each of its Subsidiaries to, pay
all material taxes, assessments and other governmental charges imposed upon it
or any of its properties or assets or in respect of any of its income,
businesses or franchises before any penalty accrues thereon, and all material
claims (including claims for labor, services, materials and supplies) for sums
that have become due and payable and that by law have or may become a Lien upon
any of its properties or assets, prior to the time when any penalty or fine
shall be incurred with respect thereto; provided that no such charge or claim
need be paid if it is being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted, so long as (i) such reserve or
other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made therefor and (ii) in the case of a charge or claim
which has or may become a Lien against any of the Collateral, such proceedings
conclusively operate to stay the sale of any portion of the Collateral to
satisfy such charge or claim.
B. Company will not, nor will it permit any of its Subsidiaries
to, file or consent to the filing of any consolidated income tax return with any
Person (other than Company or any of its Subsidiaries).
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6.4 MAINTENANCE OF PROPERTIES; INSURANCE; APPLICATION OF NET
INSURANCE/ CONDEMNATION PROCEEDS.
A. MAINTENANCE OF PROPERTIES. Company will, and will cause each
of its Subsidiaries to, maintain or cause to be maintained in good repair,
working order and condition, ordinary wear and tear excepted, all material
properties used or useful in the business of Company and its Subsidiaries
(including all Intellectual Property) and from time to time will make or cause
to be made all appropriate repairs, renewals and replacements thereof.
B. INSURANCE. Company will maintain or cause to be maintained,
with financially sound and reputable insurers, such public liability insurance,
third party property damage insurance, business interruption insurance and
casualty insurance with respect to liabilities, losses or damage in respect of
the assets, properties and businesses of Company and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by corporations
of established reputation engaged in similar businesses, in each case in such
amounts (giving effect to self-insurance), with such deductibles, covering such
risks and otherwise on such terms and conditions as shall be customary for
corporations similarly situated in the industry. Without limiting the generality
of the foregoing, Company will maintain or cause to be maintained (i) from and
after the date that the Post-Closing Date Mortgages are required to be delivered
pursuant to subsection 6.12, flood insurance with respect to each Flood Hazard
Property that is located in a community that participates in the National Flood
Insurance Program, in each case in compliance with any applicable regulations of
the Board of Governors of the Federal Reserve System, and (ii) replacement value
casualty insurance on the Collateral under such policies of insurance, with such
insurance companies, in such amounts, with such deductibles, and covering such
risks as are at all times satisfactory to Administrative Agent in its
commercially reasonable judgment. Each such policy of insurance shall (a) name
Administrative Agent for the benefit of Lenders as an additional insured
thereunder as its interests may appear and (b) in the case of each business
interruption and casualty insurance policy, contain a loss payable clause or
endorsement, satisfactory in form and substance to Administrative Agent, that
names Administrative Agent for the benefit of Lenders as the loss payee
thereunder for any covered loss in excess of $100,000 and provides for at least
30 days prior written notice to Administrative Agent of any modification or
cancellation of such policy.
C. APPLICATION OF NET INSURANCE/CONDEMNATION PROCEEDS.
(i) Business Interruption Insurance. Upon receipt by Company or
any of its Subsidiaries of any business interruption insurance proceeds
constituting Net Insurance/Condemnation Proceeds, (a) so long as no
Event of Default or Potential Event of Default shall have occurred and
be continuing, Company or such Subsidiary may retain and apply such Net
Insurance/Condemnation Proceeds for working capital purposes, and (b) if
an Event of Default or Potential Event of Default shall have occurred
and be continuing, Company shall apply an amount equal to such Net
Insurance/Condemnation Proceeds to prepay the Loans (and/or the
Revolving Loan Commitments shall be reduced) as provided in subsection
2.4B.
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(ii) Net Insurance/Condemnation Proceeds Received by Company.
Upon receipt by Company or any of its Subsidiaries of any Net
Insurance/Condemnation Proceeds other than from business interruption
insurance, (a) so long as no Event of Default or Potential Event of
Default shall have occurred and be continuing, Company shall, or shall
cause one or more of its Subsidiaries to, promptly and diligently apply
such Net Insurance/Condemnation Proceeds to pay or reimburse the costs
of repairing, restoring or replacing the assets in respect of which such
Net Insurance/Condemnation Proceeds were received or, to the extent not
so applied within 360 days following receipt thereof, promptly to prepay
the Loans (and/or the Revolving Loan Commitments shall be reduced) as
provided in subsection 2.4B, and (b) if an Event of Default or Potential
Event of Default shall have occurred and be continuing, Company shall
apply an amount equal to such Net Insurance/ Condemnation Proceeds, to
prepay the Loans (and/or the Revolving Loan Commitments shall be
reduced) as provided in subsection 2.4B.
(iii) Net Insurance/Condemnation Proceeds Received by
Administrative Agent. Upon receipt by Administrative Agent of any Net
Insurance/Condemnation Proceeds as loss payee, (a) if and to the extent
Company would have been required to apply such Net
Insurance/Condemnation Proceeds (if it had received them directly) to
prepay the Loans and/or reduce the Revolving Loan Commitments,
Administrative Agent shall, and Company hereby authorizes Administrative
Agent to, apply such Net Insurance/Condemnation Proceeds to prepay the
Loans (and/or the Revolving Loan Commitments shall be reduced) as
provided in subsection 2.4B, and (b) to the extent the foregoing clause
(a) does not apply, Administrative Agent shall deliver such Net
Insurance/Condemnation Proceeds to Company, and Company shall, or shall
cause one or more of its Subsidiaries to, promptly apply such Net
Insurance/Condemnation Proceeds to the costs of repairing, restoring, or
replacing the assets in respect of which such Net Insurance/Condemnation
Proceeds were received; provided that if so required by Administrative
Agent, Administrative Agent shall hold such Net Insurance/Condemnation
Proceeds pursuant to the terms of the Security Agreement and, so long as
Company or any of its Subsidiaries proceeds diligently to repair,
restore or replace the assets of Company or such Subsidiary in respect
of which such Net Insurance/Condemnation Proceeds were received,
Administrative Agent shall from time to time disburse to Company or such
Subsidiary from the Collateral Account, to the extent of any such Net
Insurance/Condemnation Proceeds remaining therein in respect of the
applicable covered loss, amounts necessary to pay the cost of such
repair, restoration or replacement after the receipt by Administrative
Agent of invoices or other documentation reasonably satisfactory to
Administrative Agent relating to the amount of costs so incurred and the
work performed (including, if required by Administrative Agent, lien
releases and architects' certificates); provided, however that if at any
time Administrative Agent reasonably determines that such repair,
restoration or replacement cannot be completed within 360 days after the
receipt by Administrative Agent of such Net Insurance/Condemnation
Proceeds, Administrative Agent shall, and Company hereby authorizes
Administrative Agent to, apply such Net Insurance/ Condemnation Proceeds
to prepay the Loans (and/or the Revolving Loan Commitments shall be
reduced) as provided in subsection 2.4B.
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6.5 INSPECTION RIGHTS; LENDER MEETING.
A. INSPECTION RIGHTS. Company shall, and shall cause each of its
Subsidiaries to, permit any authorized representatives designated by any Lender
to visit and inspect any of the properties of Company or of any of its
Subsidiaries, to inspect, copy and take extracts from its and their financial
and accounting records, and to discuss its and their affairs, finances and
accounts with its and their officers and independent public accountants
(provided that Company may, if it so chooses, be present at or participate in
any such discussion), all upon reasonable notice and at such reasonable times
during normal business hours and as often as may reasonably be requested or at
any time or from time to time following the occurrence and during the
continuance of any Event of Default.
B. LENDER MEETING. Company will, upon the request of
Administrative Agent or Requisite Lenders, participate in a meeting of
Administrative Agent and Lenders once during each Fiscal Year to be held at
Company's principal offices (or at such other location as may be agreed to by
Company and Administrative Agent) at such time as may be agreed to by Company
and Administrative Agent.
6.6 COMPLIANCE WITH LAWS, ETC.
Company shall comply, and shall cause each of its Subsidiaries
to comply, with the requirements of all applicable laws, rules, regulations and
orders of any Government Authority (including all Environmental Laws),
noncompliance with which could reasonably be expected to result in, individually
or in the aggregate, a Material Adverse Effect.
6.7 ENVIRONMENTAL MATTERS.
A. ENVIRONMENTAL DISCLOSURE. Company will deliver to
Administrative Agent and Lenders:
(i) Notice of Certain Releases, Remedial Actions, Etc. Promptly
upon the occurrence thereof, written notice describing in reasonable
detail (a) any Release required to be reported to any federal, state or
local governmental or regulatory agency under any applicable
Environmental Laws that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect, and (b)
any remedial action taken by Company or any other Person in response to
(1) any Hazardous Materials Activities the existence of which could
reasonably be expected to result in one or more Environmental Claims
having, individually or in the aggregate, a Material Adverse Effect, or
(2) any Environmental Claim that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect.
(ii) Written Communications Regarding Environmental Claims,
Releases, Etc. As soon as practicable following the sending or receipt
thereof by Company or any of its Subsidiaries, a copy of any and all
written communications, environmental audits, investigations, analyses
or reports with respect to (a) any environmental matters or
Environmental Claims that, individually or in the aggregate, could
reasonably be
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expected to result in a Material Adverse Effect and (b) any request for
information from any governmental agency that suggests such agency is
investigating whether Company or any of its Subsidiaries may be
potentially responsible for any Hazardous Materials Activity which could
reasonably be expected to result in Environmental Claims which,
individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect.
B. COMPANY'S ACTIONS REGARDING HAZARDOUS MATERIALS ACTIVITIES,
ENVIRONMENTAL CLAIMS AND VIOLATIONS OF ENVIRONMENTAL LAWS. Company shall
promptly take, and shall cause each of its Subsidiaries promptly to take, any
and all actions necessary to (i) cure any material violation of applicable
Environmental Laws by Company or its Subsidiaries and (ii) make an appropriate
response to any Environmental Claim against Company or any of its Subsidiaries
and discharge any obligations it may have to any Person thereunder where failure
to do so could reasonably be expected to result in, individually or in the
aggregate, a Material Adverse Effect.
6.8 EXECUTION OF SUBSIDIARY GUARANTY AND PERSONAL PROPERTY
COLLATERAL DOCUMENTS AFTER THE CLOSING DATE.
A. EXECUTION OF SUBSIDIARY GUARANTY AND PERSONAL PROPERTY
COLLATERAL DOCUMENTS. In the event that any Person becomes a wholly-owned
Domestic Subsidiary of Company after the date hereof, Company will promptly
notify Administrative Agent of that fact and cause such Domestic Subsidiary to
execute and deliver to Administrative Agent a counterpart of the Subsidiary
Guaranty and Security Agreement and to take all such further actions and execute
all such further documents and instruments (including actions, documents and
instruments comparable to those described in subsection 4.1L) as may be
necessary or, in the opinion of Administrative Agent, desirable to create in
favor of Administrative Agent, for the benefit of Lenders, a valid and perfected
First Priority Lien on substantially all of the assets of and equity interests
in such Domestic Subsidiary described in the applicable forms of Collateral
Documents.
B. FOREIGN SUBSIDIARIES. In the event that any Person becomes a
Foreign Subsidiary of Company after the date hereof, Company will promptly
notify Administrative Agent of that fact and, if such Subsidiary is directly
owned by Company or a Domestic Subsidiary, cause such Subsidiary to execute and
deliver to Administrative Agent such documents and instruments and take such
further actions (including actions, documents and instruments comparable to
those described in subsection 4.1L) as may be necessary, or in the reasonable
opinion of Administrative Agent, desirable to create in favor of Administrative
Agent, for the benefit of Lenders, a valid and perfected First Priority Lien on
66% of the capital stock of such Foreign Subsidiary.
C. SUBSIDIARY ORGANIZATIONAL DOCUMENTS, LEGAL OPINIONS, ETC.
Company shall deliver to Administrative Agent, together with such Loan
Documents, (i) certified copies of such Subsidiary's Organizational Documents,
together with, if such Subsidiary is a Domestic Subsidiary, a good standing
certificate from the Secretary of State of the jurisdiction of its organization
and each other state in which such Person is qualified to do business and, to
the
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extent generally available, a certificate or other evidence of good standing as
to payment of any applicable franchise or similar taxes from the appropriate
taxing authority of each of such jurisdictions, each to be dated a recent date
prior to their delivery to Administrative Agent, (ii) a certificate executed by
the secretary or similar officer of such Subsidiary if the Subsidiary is a
Subsidiary Guarantor as to (a) the fact that the attached resolutions of the
Governing Body of such Subsidiary approving and authorizing the execution,
delivery and performance of such Loan Documents are in full force and effect and
have not been modified or amended and (b) the incumbency and signatures of the
officers of such Subsidiary executing such Loan Documents, and (iii) a favorable
opinion of counsel to such Subsidiary (except to the extent such Subsidiary is
an immaterial Subsidiary) in form and substance satisfactory to Administrative
Agent and its counsel, as to (a) the due incorporation and good standing of such
Subsidiary, (b) the due authorization, execution and delivery by such Subsidiary
of such Loan Documents, (c) the enforceability of such Loan Documents against
such Subsidiary and (d) such other matters (including matters relating to the
creation and perfection of Liens in any Collateral pursuant to such Loan
Documents) as Administrative Agent may reasonably request, all of the foregoing
to be satisfactory in form and substance to Administrative Agent and its
counsel.
6.9 MATTERS RELATING TO ADDITIONAL REAL PROPERTY COLLATERAL.
A. ADDITIONAL MORTGAGES, ETC. From and after the Closing Date,
in the event that (i) Company or any Subsidiary Guarantor acquires any fee
interest in real property on which an antenna or tower is located or with a fair
market value in excess of $1,000,000 or any Material Leasehold Property or (ii)
at the time any Person becomes a Subsidiary Guarantor, such Person owns or holds
any such fee interest in real property or any Material Leasehold Property, in
the case of clause (ii) above excluding any such Real Property Asset the
encumbrancing of which requires the consent of any applicable lessor or
then-existing senior lienholder, where Company and its Subsidiaries have
attempted in good faith using best efforts, but are unable, to obtain such
lessor's or senior lienholder's consent (any such non-excluded Real Property
Asset described in the foregoing clause (i) or (ii) being an "ADDITIONAL
MORTGAGED PROPERTY"), Company or such Subsidiary Guarantor shall deliver to
Administrative Agent, as soon as practicable after such Person acquires such
Additional Mortgaged Property or becomes a Subsidiary Guarantor, as the case may
be, a fully executed and notarized Mortgage (an "ADDITIONAL MORTGAGE"), in
proper form for recording in all appropriate places in all applicable
jurisdictions, encumbering the interest of such Loan Party in such Additional
Mortgaged Property; and such opinions, documents, environmental reports that
would have been delivered if such Additional Mortgaged Property were a
Post-Closing Date Mortgaged Property or that may be reasonably required by
Administrative Agent; provided however, that notwithstanding the foregoing,
Company and any such Subsidiary Guarantor shall not be required to comply with
the provisions of this subsection 6.9 prior to the time at which compliance is
required with respect to Post-Closing Date Mortgaged Properties under subsection
6.12.
B. REAL ESTATE APPRAISALS. Company shall, and shall cause each
of its Subsidiaries to, permit an independent real estate appraiser satisfactory
to Administrative Agent, upon reasonable notice, to visit and inspect any
Additional Mortgaged Property for the purpose of preparing an appraisal of such
Additional Mortgaged Property satisfying the requirements of
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any applicable laws and regulations (in each case to the extent required under
such laws and regulations as determined by Administrative Agent in its
discretion).
6.10 FCC MATTERS.
Notwithstanding anything herein to the contrary, to the extent
this Agreement or any other Loan Document purports to require any Loan Party to
grant to Administrative Agent, on behalf and for the ratable benefit of Lenders,
a security interest in the FCC Licenses of such Loan Party, Administrative
Agent, on behalf and for the ratable benefit of Lenders, shall have a security
interest in such licenses at such times and to the extent that a security
interest in such licenses is permitted under applicable law. Notwithstanding
anything to the contrary set forth herein, Administrative Agent, on behalf of
Lenders, agrees that to the extent prior FCC approval is required pursuant to
applicable law for (a) the operation and effectiveness of any grant, right or
remedy hereunder or under any Loan Document or (b) taking any action that may be
taken by Administrative Agent hereunder or under any Loan Document, such grant,
right, remedy or actions will be subject to such prior FCC approval having been
obtained by or in favor of Administrative Agent, on behalf and for the ratable
benefit of Lenders. Company agrees that, during the continuance of an Event of
Default and at the request of the Administrative Agent or the Requisite Lenders,
Company shall promptly file, or cause to be filed, such applications for
approval and shall take all other and further actions required by the
Administrative Agent, on behalf and for the ratable benefit of Lenders, to
obtain such FCC approvals or consents as are necessary to transfer ownership and
control to Administrative Agent or trustee or other fiduciary acting in lieu of
Administrative Agent in order to ensure compliance with applicable law, on
behalf and for the ratable benefit of Lenders, or their successors or assigns,
of the FCC Licenses held by it.
6.11 LICENSE SUBS.
Each Loan Party operating one or more Stations shall cause the
FCC License for such Station or Stations to be transferred to a License Sub
pursuant to a Transfer FCC Consent which shall be a Final Order (i) no later
than 180 days after the Closing Date with respect to FCC Licenses owned by any
such Loan Party as of the Closing Date or such longer period of time as may be
approved by Administrative Agent (and by Syndication Agent, with respect any
extension beyond the 210th day following the Closing Date) or (ii) no later than
(A) the later of 90 days after the acquisition of any such FCC License with
respect to any FCC Licenses acquired by any such Loan Party after the Closing
Date and (B) 180 days after the Closing Date or such longer period of time as
may be approved by Administrative Agent (and by Syndication Agent, with respect
any extension beyond the 210th day following the Closing Date). Each Loan Party
shall cause each License Sub to (i) observe all customary formalities regarding
its existence, (ii) not commingle its properties with those of its Affiliates,
or any other Person, (iii) accurately maintain its own bank accounts and
separate books of account, (iv) pay its own liabilities from its own separate
assets, (v) not incur any Indebtedness or other liabilities, not make loans to
or assume or guaranty the obligations of any Person (other than pursuant to the
Subsidiary Guaranty), (vi) execute a counterpart of the Subsidiary Guaranty and
Security Agreement and (vii) not grant or permit to exist any Lien on any of its
properties or assets other than Permitted Encumbrances and Liens created
pursuant to the Collateral Documents. Each
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Loan Party shall pledge to Administrative Agent for the benefit of Lenders all
of the outstanding shares of each License Sub held by such Loan Party.
6.12 POST-CLOSING MORTGAGED PROPERTIES. On or before the date that is
180 days after the Closing Date or such longer period of time as may be approved
by Administrative Agent (and by Syndication Agent, with respect any extension
beyond the 210th day following the Closing Date), Administrative Agent shall
have received from Company and each applicable Subsidiary Guarantor:
A. POST-CLOSING DATE MORTGAGES. Fully executed and notarized Mortgages
(each a "POST-CLOSING DATE MORTGAGE" and, collectively, the "POST-CLOSING DATE
MORTGAGES"), in proper form for recording in all appropriate places in all
applicable jurisdictions, encumbering each Real Property Asset listed in
Schedule 5.5B and designated as a Real Property Asset to be mortgaged on or
before the date that is 180 days after the Closing Date and each other Real
Property Asset reasonably requested by Administrative Agent to be mortgaged
based on information contained on the updated Schedule 5.5B delivered pursuant
to subsection 5.5B (each a "POST-CLOSING DATE MORTGAGED PROPERTY" and,
collectively, the "POST-CLOSING DATE MORTGAGED PROPERTIES");
B. OPINIONS OF LOCAL COUNSEL. If requested by Administrative Agent, an
opinion of counsel in each state in which a Post-Closing Date Mortgaged Property
is located with respect to the enforceability of the form(s) of Post-Closing
Date Mortgages to be recorded in such state and such other matters as
Administrative Agent may reasonably request, in each case in form and substance
reasonably satisfactory to Administrative Agent;
C. LANDLORD CONSENTS AND ESTOPPELS; RECORDED LEASEHOLD INTERESTS. In the
case of each Post-Closing Date Mortgaged Property consisting of a Leasehold
Property (a) a Landlord Consent and Estoppel with respect thereto and (b)
evidence that such Leasehold Property is a Recorded Leasehold Interest,
provided, however, in each case, Company and each applicable Subsidiary
Guarantor shall be required to use its best efforts to obtain such Landlord
Consent and Estoppel and evidence and provided, further, if such Landlord
Consent and Estoppel can not be obtained despite Company's or the applicable
Subsidiary Guarantor's best efforts, Company or the applicable Subsidiary
Guarantor, shall not be required to deliver a Post-Closing Date Mortgage with
respect thereto if the encumbrancing of such Leasehold Property requires the
consent of any applicable lessor or then-existing senior lienholder;
D. MATTERS RELATING TO FLOOD HAZARD PROPERTIES. (a) Evidence, which may
be in the form of a letter from an insurance broker or a municipal engineer, as
to whether (1) any Post-Closing Date Mortgaged Property is a Flood Hazard
Property and (2) the community in which any such Flood Hazard Property is
located is participating in the National Flood Insurance Program, (b) if there
are any such Flood Hazard Properties, such Loan Party's written acknowledgement
of receipt of written notification from Administrative Agent (1) as to the
existence of each such Flood Hazard Property and (2) as to whether the community
in which each such Flood Hazard Property is located is participating in the
National Flood Insurance Program, and (c) in the event any such Flood Hazard
Property is located in a community that participates in the National Flood
Insurance Program, evidence that Company has obtained flood
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insurance in respect of such Flood Hazard Property to the extent required under
the applicable regulations of the Board of Governors of the Federal Reserve
System; and
E. ENVIRONMENTAL REPORTS. Such transaction screens, reports and other
information, in form, scope and substance satisfactory to Administrative Agent,
regarding environmental matters relating to the Post-Closing Date Mortgaged
Properties as have been requested by Administrative Agent.
F. ENVIRONMENTAL INDEMNITY AGREEMENT. An environmental indemnity
agreement in the form of Exhibit XVI annexed hereto.
SECTION 7. COMPANY'S NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other Obligations and the cancellation or expiration of all
Letters of Credit, unless Requisite Lenders shall otherwise give prior written
consent, Company shall perform, and shall cause each of its Subsidiaries to
perform, all covenants in this Section 7.
7.1 INDEBTEDNESS.
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume or guaranty, or otherwise
become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(i) Company may become and remain liable with respect to the
Obligations;
(ii) Company and its Subsidiaries may become and remain liable
with respect to Contingent Obligations permitted by subsection 7.4 and,
upon any matured obligations actually arising pursuant thereto, the
Indebtedness corresponding to the Contingent Obligations so
extinguished;
(iii) Company and its Subsidiaries may become and remain liable
with respect to Indebtedness in respect of Capital Leases aggregating
not in excess of $3,000,000 at any one time;
(iv) Company may become and remain liable with respect to
Indebtedness to any of its wholly-owned Subsidiary Guarantors, and any
wholly-owned Subsidiary Guarantor of Company may become and remain
liable with respect to Indebtedness to Company or any other wholly-owned
Subsidiary Guarantor of Company; provided that (a) all such intercompany
Indebtedness shall be evidenced by promissory notes, (b) all such
intercompany Indebtedness owed by Company to any of its Subsidiaries
shall be subordinated in right of payment to the payment in full of the
Obligations pursuant to the terms of the applicable promissory notes or
an intercompany subordination agreement, and (c) any payment by any
Subsidiary of Company under any guaranty of the Obligations shall result
in a pro tanto reduction of the amount of any intercompany
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Indebtedness owed by such Subsidiary to Company or to any of its
Subsidiaries for whose benefit such payment is made;
(v) Company and its Subsidiaries, as applicable, may remain
liable with respect to Indebtedness described in Schedule 7.1 annexed
hereto;
(vi) Company may remain liable with respect to Indebtedness
evidenced by the 9.00% Senior Subordinated Notes due 2009 in an original
aggregate principal amount not to exceed $200,000,000;
(vii) Company or a Subsidiary of Company may become and remain
liable with respect to (x) Indebtedness of any Person assumed in
connection with any acquisition of such Person or such Person's assets
permitted under subsection 7.3 provided that such Indebtedness is not
created in anticipation of such acquisition and (y) purchase money
Indebtedness incurred for the purpose of financing all or any part of
the purchase price of any asset; provided that the aggregate amount of
Indebtedness outstanding under this clause (vii) does not exceed
$5,000,000; and
(viii) Company and its Subsidiaries may become and remain liable
with respect to other unsecured Indebtedness in an aggregate principal
amount not to exceed $5,000,000 at any time outstanding.
7.2 LIENS AND RELATED MATTERS.
A. PROHIBITION ON LIENS. Company shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly, create, incur, assume or
permit to exist any Lien on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods or accounts
receivable) of Company or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any such property, asset, income or
profits under the UCC or under any similar recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Collateral Documents;
(iii) Liens described in Schedule 7.2 annexed hereto;
(iv) Liens securing Indebtedness permitted under subsection
7.1(vii); provided, however, that the Lien shall apply only to the asset
so acquired or so financed; and
(v) Liens securing Indebtedness permitted under subsection
7.1(iii).
B. EQUITABLE LIEN IN FAVOR OF LENDERS. If Company or any of its
Subsidiaries shall create or assume any Lien upon any of its properties or
assets, whether now owned or hereafter acquired, other than Liens excepted by
the provisions of subsection 7.2A, it
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shall make or cause to be made effective provision whereby the Obligations will
be secured by such Lien equally and ratably with any and all other Indebtedness
secured thereby as long as any such Indebtedness shall be so secured; provided
that, notwithstanding the foregoing, this covenant shall not be construed as a
consent by Requisite Lenders to the creation or assumption of any such Lien not
permitted by the provisions of subsection 7.2A.
C. NO FURTHER NEGATIVE PLEDGES. Neither Company nor any of its
Subsidiaries shall enter into any agreement prohibiting the creation or
assumption of any Lien upon any of its properties or assets, whether now owned
or hereafter acquired, except with respect to indentures governing Company's
Subordinated Indebtedness and specific property encumbered to secure payment of
particular Indebtedness or to be sold pursuant to an executed agreement with
respect to an Asset Sale.
D. NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO COMPANY OR
OTHER SUBSIDIARIES. Company will not, and will not permit any of its
Subsidiaries to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any such Subsidiary to (i) pay dividends or make any other distributions on
any of such Subsidiary's Capital Stock owned by Company or any other Subsidiary
of Company, (ii) repay or prepay any Indebtedness owed by such Subsidiary to
Company or any other Subsidiary of Company, (iii) make loans or advances to
Company or any other Subsidiary of Company, or (iv) transfer any of its property
or assets to Company or any other Subsidiary of Company, except (a) as provided
in this Agreement and (b) as may be provided in an agreement with respect to an
Asset Sale.
7.3 INVESTMENTS; ACQUISITIONS; LMA'S.
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, make or own any Investment in any Person, including
any Joint Venture, or acquire, by purchase or otherwise, all or substantially
all the business, property or fixed assets of, or Capital Stock or other
ownership interest of any Person, or any division or line of business of any
Person, or enter into any LMA or incur any LMA Obligations, except:
(i) Company and its Subsidiaries may make and own Investments in
Cash Equivalents;
(ii) Company and its Subsidiaries may continue to own the
Investments owned by them as of the Closing Date in any Subsidiaries of
Company and Company and its wholly-owned Subsidiary Guarantors may make
and own additional equity Investments in their respective wholly-owned
Subsidiary Guarantors;
(iii) Company and its Subsidiaries may make intercompany loans
to the extent permitted under subsection 7.1(iv);
(iv) Company and its Subsidiaries may make Consolidated Capital
Expenditures permitted by subsection 7.8;
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(v) Company and its Subsidiaries may continue to own the
Investments owned by them in any Person (in addition to the Investments
in Subsidiaries permitted by subsection 7.3(ii)) and to be a party to
LMA's and incur LMA Obligations, in each case as in existence on the
Closing Date and described in Schedule 7.3 annexed hereto;
(vi) Company and its Subsidiaries may acquire assets (including
Capital Stock and including Capital Stock of Subsidiaries formed in
connection with any such acquisition) having a fair market value not in
excess of $2,000,000 in any one Fiscal Year and $5,000,000 in the
aggregate since the Closing Date and continue to own such assets after
the acquisition thereof; provided that such amounts shall be increased
to $4,000,000 and $10,000,000, respectively, at such time as Company's
Consolidated Interest Coverage Ratio as of the last day of the
immediately preceding Fiscal Quarter as set forth in the Compliance
Certificate for such Fiscal Quarter delivered to Administrative Agent
pursuant to subsection 6.1(iv) equals or exceeds 2.00:1.00, provided,
further Company shall, and shall cause its Subsidiaries to, comply with
the requirements of subsections 6.8 and 6.9 with respect to each such
acquisition that results in a Person becoming a Subsidiary;
(vii) Company and its Subsidiaries may receive and hold
promissory notes and other non-cash consideration received in connection
with any Asset Sale permitted by subsection 7.7;
(viii) Company and its Subsidiaries may acquire Securities in
connection with the satisfaction or enforcement of Indebtedness or
claims due or owing to Company or any of its Subsidiaries or as security
for any such Indebtedness or claim; and
(ix) Central NY News, Inc. ("PROGRAMMER") may make the
$11,000,000 loan described in Section 6.1(d) of that certain WETM-TV
Local Marketing Agreement dated as of February 1, 2000 between ▇▇▇▇▇
Television of New York, Inc. ("OWNER") and Programmer (the "WETM LMA")
and acquire the stock of Newco (as such term is defined in the WETM LMA)
if Owner delivers a Spinoff Notice (as such term is defined in the WETM
LMA) pursuant to Section 6.1(a) of the WETM LMA.
7.4 CONTINGENT OBLIGATIONS.
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create or become or remain liable with respect to
any Contingent Obligation, except:
(i) Subsidiaries of Company may become and remain liable with
respect to Contingent Obligations in respect of the Subsidiary Guaranty;
(ii) Company may become and remain liable with respect to
Contingent Obligations in respect of Letters of Credit;
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(iii) Company may become and remain liable with respect to
Contingent Obligations under Interest Rate Agreements in a notional
amount equal to the principal amount being hedged;
(iv) Company and its Subsidiaries may become and remain liable
with respect to Contingent Obligations in respect of customary
indemnification and purchase price adjustment obligations incurred in
connection with Asset Sales or other sales of assets permitted
hereunder;
(v) Company may become and remain liable with respect to
Contingent Obligations in respect of any Indebtedness of any of
Company's Subsidiary Guarantors permitted by subsection 7.1;
(vi) Company and its Subsidiaries, as applicable, may remain
liable with respect to Contingent Obligations described in Schedule 7.4
annexed hereto; and
(vii) Subsidiary Guarantors may become and remain liable with
respect to Contingent Obligations arising under their subordinated
guaranties of Company's Indebtedness under subsection 7.1(vi).
7.5 RESTRICTED JUNIOR PAYMENTS.
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, declare, order, pay, make or set apart any sum for
any Restricted Junior Payment; provided that Company may make (i) regularly
scheduled payments of interest in respect of any Subordinated Indebtedness in
accordance with the terms of, and only to the extent required by, and subject to
the subordination provisions contained in, the indenture or other agreement
pursuant to which such Subordinated Indebtedness was issued, as such indenture
or other agreement may be amended from time to time to the extent permitted
under subsection 7.12 and (ii) so long as no Event of Default or Potential Event
of Default shall have occurred and be continuing or shall be caused thereby,
Company may make Restricted Junior Payments to its shareholders in an aggregate
amount which does not exceed $1,000,000 since the Closing Date.
7.6 FINANCIAL COVENANTS.
A. MINIMUM INTEREST COVERAGE RATIO. Company shall not permit the
Consolidated Interest Coverage Ratio, calculated on a Pro Forma Basis, for any
four-Fiscal Quarter period ending during any of the periods set forth below to
be less than the correlative ratio indicated:
MINIMUM INTEREST
PERIOD COVERAGE RATIO
------ ----------------
September 30, 2001 1.07:1.00
December 31, 2001 1.07:1.00
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MINIMUM INTEREST
PERIOD COVERAGE RATIO
------ ----------------
March 31, 2002 1.26:1.00
June 30, 2002 1.31:1.00
September 30, 2002 1.41:1.00
December 31, 2002 1.46:1.00
March 31, 2003 1.46:1.00
June 30, 2003 1.46:1.00
September 30, 2003 1.56:1.00
December 31, 2003 1.56:1.00
March 31, 2004 1.75:1.00
June 30, 2004 1.75:1.00
September 30, 2004 1.95:1.00
December 31, 2004 2.28:1.00
March 31, 2005 2.28:1.00
June 30, 2005 2.38:1.00
September 30, 2005 2.38:1.00
December 31, 2005 2.53:1.00
March 31, 2006 2.53:1.00
June 30, 2006 2.53:1.00
September 30, 2006 2.53:1.00
B. MINIMUM FIXED CHARGE COVERAGE RATIO. Company shall not permit
the ratio, calculated on a Pro Forma Basis, of (i) Consolidated EBITDA to (ii)
Consolidated Fixed Charges for any four-Fiscal Quarter period ending during any
of the periods set forth below to be less than the correlative ratio indicated:
MINIMUM FIXED
PERIOD CHARGE COVERAGE RATIO
------ ---------------------
September 30, 2001 0.57:1.00
December 31, 2001 0.69:1.00
March 31, 2002 0.83:1.00
June 30, 2002 0.84:1.00
September 30, 2002 0.88:1.00
December 31, 2002 0.88:1.00
March 31, 2003 0.93:1.00
June 30, 2003 0.93:1.00
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MINIMUM FIXED
PERIOD CHARGE COVERAGE RATIO
------ ---------------------
September 30, 2003 0.98:1.00
December 31, 2003 0.98:1.00
March 31, 2004 0.98:1.00
June 30, 2004 1.18:1.00
September 30, 2004 1.18:1.00
December 31, 2004 1.38:1.00
March 31, 2005 1.38:1.00
June 30, 2005 1.38:1.00
September 30, 2005 1.38:1.00
December 31, 2005 1.49:1.00
March 31, 2006 1.49:1.00
June 30, 2006 1.49:1.00
September 30, 2006 1.49:1.00
C. MAXIMUM SENIOR LEVERAGE RATIO. Company shall not permit the
Consolidated Senior Leverage Ratio, calculated on a Pro Forma Basis, as of the
last day of the most recently ended Fiscal Quarter ending during any of the
periods set forth below to exceed the correlative ratio indicated:
PERIOD MAXIMUM SENIOR LEVERAGE RATIO
------ -----------------------------
September 30, 2001 3.48:1.00
December 31, 2001 3.34:1.00
March 31, 2002 2.77:1.00
June 30, 2002 2.42:1.00
September 30, 2002 2.37:1.00
December 31, 2002 2.07:1.00
March 31, 2003 2.07:1.00
June 30, 2003 1.88:1.00
September 30, 2003 1.88:1.00
December 31, 2003 1.68:1.00
March 31, 2004 1.42:1.00
June 30, 2004 1.42:1.00
September 30, 2004 1.16:1.00
December 31, 2004 1.16:1.00
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PERIOD MAXIMUM SENIOR LEVERAGE RATIO
------ -----------------------------
March 31, 2005 1.00:1.00
June 30, 2005 1.00:1.00
September 30, 2005 1.00:1.00
December 31, 2005 1.00:1.00
March 31, 2006 1.00:1.00
June 30, 2006 1.00:1.00
September 30, 2006 1.00:1.00
7.7 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES.
Company shall not, and shall not permit any of its Subsidiaries
to, alter the corporate, capital or legal structure of Company or any of its
Subsidiaries, or enter into any transaction of merger or consolidation, or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor),
transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business, property or assets (including its
notes or receivables and Capital Stock of a Subsidiary, whether newly issued or
outstanding), whether now owned or hereafter acquired, except:
(i) any Subsidiary of Company (other than a License Sub) may be
merged with or into Company or any wholly-owned Subsidiary Guarantor, or
be liquidated, wound up or dissolved, or all or any part of its
business, property or assets may be conveyed, sold, leased, transferred
or otherwise disposed of, in one transaction or a series of
transactions, to Company or any wholly-owned Subsidiary Guarantor;
provided that, in the case of such a merger, Company or such
wholly-owned Subsidiary Guarantor shall be the continuing or surviving
Person;
(ii) Company and its Subsidiaries may sell or otherwise dispose
of assets in transactions that do not constitute Asset Sales; provided
that the consideration received for such assets shall be in an amount at
least equal to the fair market value thereof;
(iii) Company and its Subsidiaries may dispose of obsolete, worn
out or surplus property in the ordinary course of business;
(iv) Company and its Subsidiaries may make Asset Sales of assets
having a fair market value not in excess of $25,000,000 in the aggregate
since the Closing Date; provided that (a) the consideration received for
such assets shall be in an amount at least equal to the fair market
value thereof; (b) the consideration received shall not be less than 80%
cash; and (c) the proceeds of such Asset Sales shall be applied as
required by subsection 2.4B(iii)(a);
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(v) Company or a Subsidiary may sell or dispose of shares of
Capital Stock of any of its Subsidiaries in order to qualify members of
the Governing Body of the Subsidiary if required by applicable law;
(vi) Any Person may be merged with or into Company or any
Subsidiary (other than a License Sub) if the acquisition of the Capital
Stock of such Person by Company or such Subsidiary would have been
permitted pursuant to subsection 7.3; provided that (a) in the case of
Company, Company shall be the continuing or surviving Person, (b) if a
Subsidiary is not the surviving or continuing Person, the surviving
Person becomes a Subsidiary and complies with the provisions of
subsections 6.8 and 6.9, (c) if the Subsidiary is a Subsidiary Guarantor
such Subsidiary Guarantor is the continuing or surviving Person, and (d)
no Potential Event of Default or Event of Default shall have occurred or
be continuing after giving effect thereto;
(vii) So long as no Event of Default or Potential Event of
Default exists, Company and its Subsidiaries may sell additional Capital
Stock first issued after the Closing Date in iKnow Bakersfield, LLC and
any other Subsidiary of the Company existing on or formed after the
Closing Date whose primary business is the management, operation,
investment or other participation in or of ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ in
Bakersfield, California, ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ in Rochester, New York
and ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ in Monterey, California (the "IKNOW
NETWORK") (iKnow Bakersfield, LLC and such Subsidiaries are collectively
referred to as the "IKNOW SUBSIDIARIES") to third Persons, provided that
Company and its Subsidiaries shall own not less than 51% of the Capital
Stock in each such iKnow Subsidiary and provided further that such sales
of such additional Capital Stock shall not exceed $5,000,000 in the
aggregate; and
(viii) If Owner delivers a Spinoff Notice pursuant to Section
6.1(a) of the WETM LMA, transfer all shares of common stock in Owner
owned by Programmer to Owner pursuant to Section 6.1(a) of the WETM LMA.
7.8 CONSOLIDATED CAPITAL EXPENDITURES.
Company shall not, and shall not permit its Subsidiaries to,
make or incur Consolidated Capital Expenditures, in any Fiscal Year indicated
below, in an aggregate amount in excess of the corresponding amount (the
"MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNT") set forth below opposite
such Fiscal Year; provided that the Maximum Consolidated Capital Expenditures
Amount for any Fiscal Year shall be increased by an amount equal to the excess,
if any, of the Maximum Consolidated Capital Expenditures Amount for the previous
Fiscal Year (without giving effect to any adjustment in accordance with this
proviso) over the actual amount of Consolidated Capital Expenditures for such
previous Fiscal Year; provided, further that in no event shall the amount of
such increase exceed 25% of the Maximum Consolidated Capital Expenditures Amount
for such previous Fiscal Year (prior to any adjustment in accordance with this
proviso):
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MAXIMUM CONSOLIDATED
FISCAL YEAR CAPITAL EXPENDITURES
----------- --------------------
2001 $15,000,000
2002 $15,000,000
2003 $15,000,000
2004 $15,000,000
2005 $15,000,000
2006 $15,000,000
provided, further, that the annual Maximum Consolidated Capital Expenditures
shall be increased to $20,000,000 for a Fiscal Year if the Consolidated Interest
Coverage Ratio as of the last day of the immediately preceding Fiscal Quarter as
set forth in the Compliance Certificate for such Fiscal Quarter delivered to
Administrative Agent pursuant to subsection 6.1(iv) equals or exceeds 2.00:1.00.
7.9 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, enter into or permit to exist any transaction
(including the purchase, sale, lease or exchange of any property or the
rendering of any service) with any holder of 5% or more of any class of equity
Securities of Company or with any Affiliate of Company or of any such holder, on
terms that are less favorable to Company or that Subsidiary, as the case may be,
than those that might be obtained at the time from Persons who are not such a
holder or Affiliate; provided that the foregoing restriction shall not apply to
(i) any transaction between Company and any of its wholly-owned Subsidiary
Guarantors or between any of its wholly-owned Subsidiary Guarantors, (ii)
reasonable and customary fees paid to members of the Governing Bodies of Company
and its Subsidiaries or (iii) any transactions described on Schedule 7.9 annexed
hereto.
7.10 SALES AND LEASE-BACKS
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, become or remain liable as lessee or as a guarantor
or other surety with respect to any lease, whether an Operating Lease or a
Capital Lease, of any property (whether real, personal or mixed), whether now
owned or hereafter acquired, (i) that Company or any of its Subsidiaries has
sold or transferred or is to sell or transfer to any other Person (other than
Company or any of its Subsidiaries) or (ii) that Company or any of its
Subsidiaries intends to use for substantially the same purpose as any other
property that has been or is to be sold or transferred by Company or any of its
Subsidiaries to any Person (other than Company or any of its Subsidiaries) in
connection with such lease; provided that Company and its Subsidiaries may
become and remain liable as lessee, guarantor or other surety with respect to
any such lease if and to the extent that Company or any of its Subsidiaries
would be permitted to enter into, and remain liable under, such lease to the
extent that the transaction would be permitted under subsection 7.1, assuming
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the sale and lease back transaction constituted Indebtedness in a principal
amount equal to the gross proceeds of the sale.
7.11 CONDUCT OF BUSINESS.
From and after the Closing Date, Company shall not, and shall
not permit any of its Subsidiaries to, engage in any business other than (i) the
businesses engaged in by Company and its Subsidiaries on the Closing Date and
similar or related businesses and (ii) such other lines of business as may be
consented to by Requisite Lenders; provided that, notwithstanding anything to
the contrary in this Agreement, no License Sub shall engage in any business or
incur any liabilities other than the ownership of its respective FCC Licenses
and the execution, delivery and performance of the Loan Documents to which it is
a party and activities incidental to the foregoing.
7.12 AMENDMENTS OF DOCUMENTS RELATING TO SUBORDINATED INDEBTEDNESS.
Company shall not, and shall not permit any of its Subsidiaries
to, amend or otherwise change the terms of any Subordinated Indebtedness, or
make any payment consistent with an amendment thereof or change thereto, if the
effect of such amendment or change is to increase the interest rate on such
Subordinated Indebtedness, change (to earlier dates) any dates upon which
payments of principal or interest are due thereon, change any event of default
or condition to an event of default with respect thereto (other than to
eliminate any such event of default or increase any grace period related
thereto), change the redemption, prepayment or defeasance provisions thereof,
change the subordination provisions thereof (or of any guaranty thereof), or
change any collateral therefor (other than to release such collateral), or if
the effect of such amendment or change, together with all other amendments or
changes made, is to increase materially the obligations of the obligor
thereunder or to confer any additional rights on the holders of such
Subordinated Indebtedness (or a trustee or other representative on their behalf)
which would be adverse to Company or Lenders.
7.13 FISCAL YEAR.
Company shall not change its Fiscal Year-end from December 31.
SECTION 8. EVENTS OF DEFAULT
If any of the following conditions or events ("EVENTS OF
DEFAULT") shall occur:
8.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure by Company to pay any installment of principal or
premium of any Loan when due, whether at stated maturity, by acceleration, by
notice of voluntary prepayment, by mandatory prepayment or otherwise; failure by
Company to pay when due any amount payable to an Issuing Lender in reimbursement
of any drawing under a Letter of Credit; or failure by Company to pay any
interest on any Loan or any fee or any other amount due under this Agreement
within five Business Days after the date due; or
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8.2 DEFAULT IN OTHER AGREEMENTS.
(i) Failure of Company or any of its Subsidiaries to pay when
due any principal or premium of or interest on or any other amount
payable in respect of one or more items of Indebtedness (other than
Indebtedness referred to in subsection 8.1) or Contingent Obligations in
an individual principal amount of $1,000,000 or more or with an
aggregate principal amount of $2,000,000 or more, in each case beyond
the end of any grace period provided therefor; or
(ii) breach or default by Company or any of its Subsidiaries
with respect to any other material term of (a) one or more items of
Indebtedness or Contingent Obligations in the individual or aggregate
principal amounts referred to in clause (i) above or (b) any loan
agreement, mortgage, indenture or other agreement relating to such
item(s) of Indebtedness or Contingent Obligation(s), if the effect of
such breach or default is to cause, or to permit the holder or holders
of that Indebtedness or Contingent Obligation(s) (or a trustee on behalf
of such holder or holders) to cause, that Indebtedness or Contingent
Obligation(s) to become or be declared due and payable prior to its
stated maturity or the stated maturity of any underlying obligation, as
the case may be (upon the giving or receiving of notice, lapse of time,
both, or otherwise); or
8.3 BREACH OF CERTAIN COVENANTS.
Failure of Company to perform or comply with any term or
condition contained in subsection 2.5 or 6.2 or Section 7 of this Agreement; or
8.4 BREACH OF WARRANTY.
Any representation, warranty, certification or other statement
made by Company or any of its Subsidiaries in any Loan Document or in any
statement or certificate at any time given by Company or any of its Subsidiaries
in writing pursuant hereto or thereto or in connection herewith or therewith
shall be false in any material respect on the date as of which made; or
8.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS.
Any Loan Party shall default in the performance of or compliance
with any term contained in this Agreement or any of the other Loan Documents,
other than any such term referred to in any other subsection of this Section 8,
and such default shall not have been remedied or waived within 30 days after the
earlier of (i) an Officer of Company or such Loan Party becoming aware of such
default or (ii) receipt by Company and such Loan Party of notice from
Administrative Agent or any Lender of such default; or
8.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having jurisdiction in the premises shall enter a
decree or order for relief in respect of Company or any of its
Subsidiaries in an involuntary case under the
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Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, which decree or order is not
stayed; or any other similar relief shall be granted under any
applicable federal or state law; or
(ii) an involuntary case shall be commenced against Company or
any of its Subsidiaries under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in
effect; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over Company
or any of its Subsidiaries, or over all or a substantial part of its
property, shall have been entered; or there shall have occurred the
involuntary appointment of an interim receiver, trustee or other
custodian of Company or any of its Subsidiaries for all or a substantial
part of its property; or a warrant of attachment, execution or similar
process shall have been issued against any substantial part of the
property of Company or any of its Subsidiaries, and any such event
described in this clause (ii) shall continue for 60 days unless
dismissed, bonded or discharged; or
8.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Company or any of its Subsidiaries shall have an order for
relief entered with respect to it or commence a voluntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, or shall consent to the entry of
an order for relief in an involuntary case, or to the conversion of an
involuntary case to a voluntary case, under any such law, or shall
consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its
property; or Company or any of its Subsidiaries shall make any
assignment for the benefit of creditors; or
(ii) Company or any of its Subsidiaries shall be unable, or
shall fail generally, or shall admit in writing its inability, to pay
its debts as such debts become due; or the Governing Body of Company or
any of its Subsidiaries (or any committee thereof) shall adopt any
resolution or otherwise authorize any action to approve any of the
actions referred to in clause (i) above or this clause (ii); or
8.8 JUDGMENTS AND ATTACHMENTS.
Any money judgment, writ or warrant of attachment or similar
process involving in the aggregate at any time an amount in excess of $2,000,000
(exclusive of amounts covered by insurance as to which a solvent and
unaffiliated insurance company has acknowledged coverage) shall be entered or
filed against Company or any of its Subsidiaries or any of their respective
assets and shall remain undischarged, unvacated, unbonded or unstayed for a
period of 30 days (or in any event later than five days prior to the date of any
proposed sale thereunder); or
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8.9 DISSOLUTION.
Any order, judgment or decree shall be entered against Company
or any of its Subsidiaries decreeing the dissolution or split up of Company or
that Subsidiary and such order shall remain undischarged or unstayed for a
period in excess of 30 days; or
8.10 EMPLOYEE BENEFIT PLANS.
There shall occur one or more ERISA Events which individually or
in the aggregate results in or might reasonably be expected to result in
liability of Company, any of its Subsidiaries or any of their respective ERISA
Affiliates in excess of $1,000,000 during the term of this Agreement; or there
shall exist an amount of unfunded benefit liabilities (as defined in Section
4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans
(excluding for purposes of such computation any Pension Plans with respect to
which assets exceed benefit liabilities), which exceeds $1,000,000; or
8.11 CHANGE IN CONTROL.
A Change in Control shall have occurred; or
8.12 INVALIDITY OF SUBSIDIARY GUARANTY; FAILURE OF SECURITY;
REPUDIATION OF OBLIGATIONS.
At any time after the execution and delivery thereof, (i) the
Subsidiary Guaranty for any reason, other than the satisfaction in full of all
Obligations, shall cease to be in full force and effect (other than in
accordance with its terms) or shall be declared to be null and void, (ii) any
Collateral Document shall cease to be in full force and effect (other than by
reason of a release of Collateral thereunder in accordance with the terms hereof
or thereof, the satisfaction in full of the Obligations or any other termination
of such Collateral Document in accordance with the terms hereof or thereof) or
shall be declared null and void, or Administrative Agent shall not have or shall
cease to have a valid and perfected First Priority Lien in any Collateral
purported to be covered thereby having a fair market value, individually or in
the aggregate, exceeding $1,000,000, in each case for any reason other than the
failure of Administrative Agent or any Lender to take any action within its
control, or (iii) any Loan Party shall contest the validity or enforceability of
any Loan Document in writing or deny in writing that it has any further
liability, including with respect to future advances by Lenders, under any Loan
Document to which it is a party; or
8.13 FCC LICENSES.
Any FCC License (other than auxiliary service licenses) relating
to a Station shall be canceled, terminated, modified in any material adverse
respect, renewed on terms that materially and adversely affect the economic or
commercial value thereof, or finally denied renewal for any reason; or
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8.14 EFFECTIVE SUBORDINATION.
Any of the subordination provisions in any Subordinated Indebtedness
shall cease, for any reason, to be in full force and effect, or any Person which
is a party to any agreement relating to such Subordinated Indebtedness shall so
assert;
THEN (i) upon the occurrence of any Event of Default described in subsection 8.6
or 8.7, each of (a) the unpaid principal amount of and accrued interest on the
Loans, (b) an amount equal to the maximum amount that may at any time be drawn
under all Letters of Credit then outstanding (whether or not any beneficiary
under any such Letter of Credit shall have presented, or shall be entitled at
such time to present, the drafts or other documents or certificates required to
draw under such Letter of Credit), and (c) all other Obligations shall
automatically become immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by Company, and the obligation of each Lender to make any Loan, the
obligation of Administrative Agent to issue any Letter of Credit and the right
of any Lender to issue any Letter of Credit hereunder shall thereupon terminate,
and (ii) upon the occurrence and during the continuation of any other Event of
Default, Administrative Agent shall, upon the written request or with the
written consent of Requisite Lenders, by written notice to Company, declare all
or any portion of the amounts described in clauses (a) through (c) above to be,
and the same shall forthwith become, immediately due and payable, and the
obligation of each Lender to make any Loan, the obligation of Administrative
Agent to issue any Letter of Credit and the right of any Lender to issue any
Letter of Credit hereunder shall thereupon terminate; provided that the
foregoing shall not affect in any way the obligations of Revolving Lenders under
subsection 3.3C(i) or the obligations of Revolving Lenders to purchase
assignments of any unpaid Swing Line Loans as provided in subsection 2.1A(iii).
Any amounts described in clause (b) above, when received by
Administrative Agent, shall be held by Administrative Agent pursuant to the
terms of the Security Agreement and shall be applied as therein provided.
SECTION 9. ADMINISTRATIVE AGENT
9.1 APPOINTMENT.
A. APPOINTMENT OF ADMINISTRATIVE AGENT. CSFB is hereby appointed
Administrative Agent hereunder and under the other Loan Documents. Each Lender
hereby authorizes Administrative Agent to act as its agent in accordance with
the terms of this Agreement and the other Loan Documents. Administrative Agent
agrees to act upon the express conditions contained in this Agreement and the
other Loan Documents, as applicable. The provisions of this Section 9 are solely
for the benefit of Administrative Agent and Lenders and no Loan Party shall have
rights as a third party beneficiary of any of the provisions thereof. In
performing its functions and duties under this Agreement, Administrative Agent
(other than as provided in subsection 2.1D) shall act solely as an agent of
Lenders and does not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for Company or any
other Loan Party.
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B. APPOINTMENT OF SUPPLEMENTAL COLLATERAL AGENTS. It is the
purpose of this Agreement and the other Loan Documents that there shall be no
violation of any law of any jurisdiction denying or restricting the right of
banking corporations or associations to transact business as agent or trustee in
such jurisdiction. It is recognized that in case of litigation under this
Agreement or any of the other Loan Documents, and in particular in case of the
enforcement of any of the Loan Documents, or in case Administrative Agent deems
that by reason of any present or future law of any jurisdiction it may not
exercise any of the rights, powers or remedies granted herein or in any of the
other Loan Documents or take any other action which may be desirable or
necessary in connection therewith, it may be necessary that Administrative Agent
appoint an additional individual or institution as a separate trustee,
co-trustee, collateral agent or collateral co-agent (any such additional
individual or institution being referred to herein individually as a
"SUPPLEMENTAL COLLATERAL AGENT" and collectively as "SUPPLEMENTAL COLLATERAL
AGENTS").
In the event that Administrative Agent appoints a Supplemental
Collateral Agent with respect to any Collateral, (i) each and every right,
power, privilege or duty expressed or intended by this Agreement or any of the
other Loan Documents to be exercised by or vested in or conveyed to
Administrative Agent with respect to such Collateral shall be exercisable by and
vest in such Supplemental Collateral Agent to the extent, and only to the
extent, necessary to enable such Supplemental Collateral Agent to exercise such
rights, powers and privileges with respect to such Collateral and to perform
such duties with respect to such Collateral, and every covenant and obligation
contained in the Loan Documents and necessary to the exercise or performance
thereof by such Supplemental Collateral Agent shall run to and be enforceable by
either Administrative Agent or such Supplemental Collateral Agent, and (ii) the
provisions of this Section 9 and of subsections 10.2 and 10.3 that refer to
Administrative Agent shall inure to the benefit of such Supplemental Collateral
Agent and all references therein to Administrative Agent shall be deemed to be
references to Administrative Agent and/or such Supplemental Collateral Agent, as
the context may require.
Should any instrument in writing from Company or any other Loan
Party be required by any Supplemental Collateral Agent so appointed by
Administrative Agent for more fully and certainly vesting in and confirming to
him or it such rights, powers, privileges and duties, Company shall, or shall
cause such Loan Party to, execute, acknowledge and deliver any and all such
instruments promptly upon request by Administrative Agent. In case any
Supplemental Collateral Agent, or a successor thereto, shall die, become
incapable of acting, resign or be removed, all the rights, powers, privileges
and duties of such Supplemental Collateral Agent, to the extent permitted by
law, shall vest in and be exercised by Administrative Agent until the
appointment of a new Supplemental Collateral Agent.
9.2 POWERS AND DUTIES; GENERAL IMMUNITY.
▇. ▇▇▇▇▇▇; DUTIES SPECIFIED. Each Lender irrevocably authorizes
Administrative Agent to take such action on such Lender's behalf and to exercise
such powers, rights and remedies hereunder and under the other Loan Documents as
are specifically delegated or granted to Administrative Agent by the terms
hereof and thereof, together with such powers, rights and remedies as are
reasonably incidental thereto. Administrative Agent shall have only
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those duties and responsibilities that are expressly specified in this Agreement
and the other Loan Documents. Administrative Agent may exercise such powers,
rights and remedies and perform such duties by or through its agents or
employees. Administrative Agent shall not have, by reason of this Agreement or
any of the other Loan Documents, a fiduciary relationship in respect of any
Lender or Company; and nothing in this Agreement or any of the other Loan
Documents, expressed or implied, is intended to or shall be so construed as to
impose upon Administrative Agent any obligations in respect of this Agreement or
any of the other Loan Documents except as expressly set forth herein or therein.
B. NO RESPONSIBILITY FOR CERTAIN MATTERS. No Agent shall be
responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectability or sufficiency of this Agreement or any
other Loan Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statements or
in any financial or other statements, instruments, reports or certificates or
any other documents furnished or made by such Agent to Lenders or by or on
behalf of Company to such Agent or any Lender in connection with the Loan
Documents and the transactions contemplated thereby or for the financial
condition or business affairs of Company or any other Person liable for the
payment of any Obligations, nor shall such Agent be required to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained in any of the Loan Documents or as
to the use of the proceeds of the Loans or the use of the Letters of Credit or
as to the existence or possible existence of any Event of Default or Potential
Event of Default. Anything contained in this Agreement to the contrary
notwithstanding, Administrative Agent shall not have any liability arising from
confirmations of the amount of outstanding Loans or the Letter of Credit Usage
or the component amounts thereof.
C. EXCULPATORY PROVISIONS. No Agent or any of its officers,
directors, employees or agents shall be liable to Lenders for any action taken
or omitted by such Agent under or in connection with any of the Loan Documents
except to the extent caused by such Agent's gross negligence or willful
misconduct. An Agent shall be entitled to refrain from any act or the taking of
any action (including the failure to take an action) in connection with this
Agreement or any of the other Loan Documents or from the exercise of any power,
discretion or authority vested in it hereunder or thereunder unless and until
such Agent shall have received instructions in respect thereof from Requisite
Lenders (or such other Lenders as may be required to give such instructions
under subsection 10.6) and, upon receipt of such instructions from Requisite
Lenders (or such other Lenders, as the case may be), such Agent shall be
entitled to act or (where so instructed) refrain from acting, or to exercise
such power, discretion or authority, in accordance with such instructions.
Without prejudice to the generality of the foregoing, (i) each Agent shall be
entitled to rely, and shall be fully protected in relying, upon any
communication, instrument or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and shall be
entitled to rely and shall be protected in relying on opinions and judgments of
attorneys (who may be attorneys for Company and its Subsidiaries), accountants,
experts and other professional advisors selected by it; and (ii) no Lender shall
have any right of action whatsoever against an Agent as a result of such Agent
acting or (where so instructed) refraining from acting under this Agreement or
any of the other Loan Documents in
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accordance with the instructions of Requisite Lenders (or such other Lenders as
may be required to give such instructions under subsection 10.6).
D. AGENTS ENTITLED TO ACT AS LENDER. The agency hereby created
shall in no way impair or affect any of the rights and powers of, or impose any
duties or obligations upon, an Agent in its individual capacity as a Lender
hereunder. With respect to its participation in the Loans and the Letters of
Credit, an Agent shall have the same rights and powers hereunder as any other
Lender and may exercise the same as though it were not performing the duties and
functions delegated to it hereunder, and the term "Lender" or "Lenders" or any
similar term shall, unless the context clearly otherwise indicates, include each
Agent in its individual capacity. An Agent and its Affiliates may accept
deposits from, lend money to, acquire equity interests in and generally engage
in any kind of commercial banking, investment banking, trust, financial advisory
or other business with Company or any of its Affiliates as if it were not
performing the duties specified herein, and may accept fees and other
consideration from Company for services in connection with this Agreement and
otherwise without having to account for the same to Lenders.
9.3 INDEPENDENT INVESTIGATION BY LENDERS; NO RESPONSIBILITY FOR
APPRAISAL OF CREDITWORTHINESS.
Each Lender agrees that it has made its own independent
investigation of the financial condition and affairs of Company and its
Subsidiaries in connection with the making of the Loans and the issuance of
Letters of Credit hereunder and that it has made and shall continue to make its
own appraisal of the creditworthiness of Company and its Subsidiaries. No Agent
shall have any duty or responsibility, either initially or on a continuing
basis, to make any such investigation or any such appraisal on behalf of Lenders
or to provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at
any time or times thereafter, and no Agent shall have any responsibility with
respect to the accuracy of or the completeness of any information provided to
Lenders.
9.4 RIGHT TO INDEMNITY.
Each Lender, in proportion to its Pro Rata Share, severally
agrees to indemnify Agents and the officers, directors, employees, agents,
attorneys, professional advisors and affiliates of each of them to the extent
that any such Person shall not have been reimbursed by Company, for and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including counsel fees and disbursements and
fees and disbursements of any financial advisor engaged by Agents) or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against an Agent or and other such Persons in exercising the
powers, rights and remedies of an Agent or performing duties of an Agent
hereunder or under the other Loan Documents or otherwise in its capacity as
Agent in any way relating to or arising out of this Agreement or the other Loan
Documents; provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from an Agent's gross negligence or
willful misconduct. If any indemnity furnished to an Agent or any other such
Person for any purpose shall, in the opinion of such Agent, be insufficient or
become
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impaired, such Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished.
9.5 SUCCESSOR ADMINISTRATIVE AGENT AND SWING LINE LENDER.
A. SUCCESSOR ADMINISTRATIVE AGENT. Any Agent (a) may resign at
any time by giving 30 days' prior written notice thereof to Lenders and Company
and (b) may be removed as Agent under the Loan Documents at any time with or
without cause upon written notice to Agent and Company signed by the Requisite
Lenders. Upon any such notice of resignation or removal, Requisite Lenders shall
have the right, upon five Business Days' notice to Company, to appoint a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Requisite Lenders and accepted such appointment within
30 days after the retiring Administrative Agent's giving of notice of
resignation or the Requisite Lenders' removing of the retiring Administrative
Agent, then the retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States of America or a state thereof and
having a combined capital and surplus of at least Two Hundred Million Dollars
($200,000,000). Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, that successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's resignation or removal hereunder as
an Agent, the provisions of this Section 9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was an Agent under this
Agreement.
B. SUCCESSOR SWING LINE LENDER. Any resignation of
Administrative Agent pursuant to subsection 9.5A shall also constitute the
resignation or removal of CSFB or its successor as Swing Line Lender, and any
successor Administrative Agent appointed pursuant to subsection 9.5A shall, upon
its acceptance of such appointment, become the successor Swing Line Lender for
all purposes hereunder. In such event (i) Company shall prepay any outstanding
Swing Line Loans made by the retiring or removed Administrative Agent in its
capacity as Swing Line Lender, (ii) upon such prepayment, the retiring
Administrative Agent and Swing Line Lender shall surrender any Swing Line Note
held by it to Company for cancellation, and (iii) if so requested by the
successor Administrative Agent and Swing Line Lender in accordance with
subsection 2.1E, Company shall issue a new Swing Line Note to the successor
Administrative Agent and Swing Line Lender substantially in the form of Exhibit
VII annexed hereto, in the principal amount of the Swing Line Loan Commitment
then in effect and with other appropriate insertions.
9.6 COLLATERAL DOCUMENTS AND GUARANTIES.
Each Lender hereby further authorizes Administrative Agent, on
behalf of and for the benefit of Lenders, to enter into each Collateral Document
as secured party and to be the agent for and representative of Lenders under the
Subsidiary Guaranty, and each Lender agrees to be bound by the terms of each
Collateral Document and the Subsidiary Guaranty; provided that Administrative
Agent shall not (i) enter into or consent to any material amendment,
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modification, termination or waiver of any provision contained in any Collateral
Document or the Subsidiary Guaranty or (ii) release any Collateral (except as
otherwise expressly permitted or required pursuant to the terms of this
Agreement or the applicable Collateral Document), in each case without the prior
consent of Requisite Lenders (or, if required pursuant to subsection 10.6, all
Lenders); provided further, however, that, without further written consent or
authorization from Lenders, Administrative Agent may execute any documents or
instruments necessary to (a) release any Lien encumbering any item of Collateral
that is the subject of a sale or other disposition of assets permitted by this
Agreement or to which Requisite Lenders have otherwise consented, or (b) release
any Subsidiary Guarantor from the Subsidiary Guaranty if all of the Capital
Stock of such Subsidiary Guarantor is sold to any Person (other than an
Affiliate of Company) pursuant to a sale or other disposition permitted
hereunder or to which Requisite Lenders have otherwise consented. Anything
contained in any of the Loan Documents to the contrary notwithstanding, Company,
Administrative Agent and each Lender hereby agree that (1) no Lender shall have
any right individually to realize upon any of the Collateral under any
Collateral Document or to enforce the Subsidiary Guaranty, it being understood
and agreed that all powers, rights and remedies under the Collateral Documents
and the Subsidiary Guaranty may be exercised solely by Administrative Agent for
the benefit of Lenders in accordance with the terms thereof, and (2) in the
event of a foreclosure by Administrative Agent on any of the Collateral pursuant
to a public or private sale, Administrative Agent or any Lender may be the
purchaser of any or all of such Collateral at any such sale and Administrative
Agent, as agent for and representative of Lenders (but not any Lender or Lenders
in its or their respective individual capacities unless Requisite Lenders shall
otherwise agree in writing) shall be entitled, for the purpose of bidding and
making settlement or payment of the purchase price for all or any portion of the
Collateral sold at any such public sale, to use and apply any of the Obligations
as a credit on account of the purchase price for any collateral payable by
Administrative Agent at such sale.
9.7 DUTIES OF OTHER AGENTS.
To the extent any other Lender is identified in this Agreement
as a "co-agent" or as a documentation agent or syndication agent, such Lender
shall not have any right, power, obligation, liability, responsibility or duty
under this Agreement other than those applicable to all Lenders as such. Without
limiting the foregoing, none of such Lenders shall have or be deemed to have a
fiduciary relationship with any Lender.
9.8 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to Company or any of the Subsidiaries of
Company, Administrative Agent (irrespective of whether the principal of any Loan
shall then be due and payable as herein expressed or by declaration or otherwise
and irrespective of whether Administrative Agent shall have made any demand on
Company) shall be entitled and empowered, by intervention in such proceeding or
otherwise
(i) to file and prove a claim for the whole amount of principal
and interest owing and unpaid in respect of the Loans and any other
Obligations that are owing and unpaid and to file such other papers or
documents as may be necessary or advisable in
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order to have the claims of Lenders and Agents (including any claim for
the reasonable compensation, expenses, disbursements and advances of
Lenders and Agents and their agents and counsel and all other amounts
due Lenders and Agents under subsections 2.3 and 10.2) allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to Administrative Agent and, in the event that
Administrative Agent shall consent to the making of such payments directly to
Lenders, to pay to Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of Agents and their agents
and counsel, and any other amounts due Agents under subsections 2.3 and 10.2.
Nothing herein contained shall be deemed to authorize
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lenders or to authorize
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.
Nothing contained in this subsection 9.8 prohibits or otherwise
precludes a Lender from filing a separate proof of claim.
SECTION 10. MISCELLANEOUS
10.1 SUCCESSORS AND ASSIGNS; ASSIGNMENTS AND PARTICIPATIONS IN LOANS
AND LETTERS OF CREDIT.
A. GENERAL. This Agreement shall be binding upon the parties
hereto and their respective successors and assigns and shall inure to the
benefit of the parties hereto and the successors and assigns of Lenders (it
being understood that Lenders' rights of assignment are subject to the further
provisions of this subsection 10.1). Neither Company's rights or obligations
hereunder nor any interest therein may be assigned or delegated by Company
without the prior written consent of all Lenders (and any attempted assignment
or transfer by Company without such consent shall be null and void). No sale,
assignment or transfer or participation of any Letter of Credit or any
participation therein may be made separately from a sale, assignment, transfer
or participation of a corresponding interest in the Revolving Loan Commitment
and the Revolving Loans of the Revolving Lender effecting such sale, assignment,
transfer or participation. Anything contained herein to the contrary
notwithstanding, except as provided in subsection 2.1A(iii) and subsection 10.5,
the Swing Line Loan Commitment and the Swing Line Loans of Swing Line Lender may
not be sold, assigned or transferred as described in clause (i) above to any
Person other than a successor Administrative Agent and Swing Line Lender to the
extent contemplated by subsection 9.5. Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, the Affiliates of
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each of Administrative Agent and Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.
B. ASSIGNMENTS.
(i) Amounts and Terms of Assignments. Any Lender may assign to
one or more Eligible Assignees all or any portion of its rights and
obligations under this Agreement; provided that (a), except (1) in the
case of an assignment of the entire remaining amount of the assigning
Lender's rights and obligations under this Agreement or (2) in the case
of an assignment to a Lender or an Affiliate of a Lender or an Approved
Fund of a Lender, the aggregate amount of the Revolving Loan Exposure or
Term Loan Exposure, as the case may be, of the assigning Lender and the
assignee subject to each such assignment shall not be less than
$1,000,000, unless each of Administrative Agent and, so long as no Event
of Default has occurred and is continuing, Company otherwise consents
(each such consent not to be unreasonably withheld or delayed), (b) each
partial assignment shall be made as an assignment of a proportionate
part of the assigning Lender's rights and obligations under this
Agreement with respect to the Loans or the Commitments assigned and in
the case of any assignment of all or any portion of a Revolving Loan
Commitment, Revolving Loans or Letter of Credit participations shall be
made only as an assignment of the same proportionate part of the
assigning Lender's Revolving Loan Commitment, Revolving Loans and Letter
of Credit participations, (c) the parties to each assignment shall
execute and deliver to Administrative Agent an Assignment Agreement,
together with a processing and recordation fee of $3,500 if required by
Administrative Agent (unless the assignee is already a Lender, an
Affiliate or an Approved Fund of the assignor, in which case no fee
shall be required, and in the case of assignments on the same day by a
Lender to more than one fund managed, administered or advised by the
same investment advisor (which funds are not then Lenders hereunder),
only a single $3,500 fee shall be payable for all such assignments by
such Lender to such funds), and the Eligible Assignee, if it shall not
be a Lender, shall deliver to Administrative Agent information
reasonably requested by Administrative Agent, including such forms,
certificates or other evidence, if any, with respect to United States
federal income tax withholding matters as the assignee under such
Assignment Agreement may be required to deliver to Administrative Agent
pursuant to subsection 2.7B(iii) and (d), except in the case of an
assignment to another Lender, an Affiliate of a Lender or an Approved
Fund of a Lender, Administrative Agent and, if no Event of Default has
occurred and is continuing, Company, shall have consented thereto (which
consent shall not be unreasonably withheld). Upon such execution,
delivery and consent, from and after the effective date specified in
such Assignment Agreement, (y) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment Agreement, shall have
the rights and obligations of a Lender hereunder and (z) the assigning
Lender thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment
Agreement, relinquish its rights (other than any rights which survive
the termination of this Agreement under subsection 10.9B) and be
released from its obligations under this Agreement (and, in the case of
an Assignment Agreement covering
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all or the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party
hereto; provided that, anything contained in any of the Loan Documents
to the contrary notwithstanding, if such Lender is the Issuing Lender
with respect to any outstanding Letters of Credit such Lender shall
continue to have all rights and obligations of an Issuing Lender with
respect to such Letters of Credit until the cancellation or expiration
of such Letters of Credit and the reimbursement of any amounts drawn
thereunder). The assigning Lender shall, upon the effectiveness of such
assignment or as promptly thereafter as practicable, surrender its
Notes, if any, to Administrative Agent for cancellation, and thereupon
new Notes shall, if so requested by the assignee and/or the assigning
Lender in accordance with subsection 2.1E, be issued to the assignee
and/or to the assigning Lender, substantially in the form of Exhibit IV,
Exhibit V or Exhibit VI annexed hereto, as the case may be, with
appropriate insertions, to reflect the new Commitments and/or
outstanding Revolving Loans and/or outstanding Term Loans, as the case
may be, of the assignee and/or the assigning Lender. Other than as
provided in subsection 2.1A(iii) and subsection 10.5, any assignment or
transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection 10.1B shall be treated for purposes
of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection 10.1C.
(ii) Acceptance by Administrative Agent; Recordation in
Register. Upon its receipt of an Assignment Agreement executed by an
assigning Lender and an assignee representing that it is an Eligible
Assignee, together with the processing and recordation fee referred to
in subsection 10.1B(i) and any forms, certificates or other evidence
with respect to United States federal income tax withholding matters
that such assignee may be required to deliver to Administrative Agent
pursuant to subsection 2.7B(iii), Administrative Agent shall, if
Administrative Agent and Company have consented to the assignment
evidenced thereby (in each case to the extent such consent is required
pursuant to subsection 10.1B(i)), (a) accept such Assignment Agreement
by executing a counterpart thereof as provided therein (which acceptance
shall evidence any required consent of Administrative Agent to such
assignment), (b) record the information contained therein in the
Register, and (c) give prompt notice thereof to Company. Administrative
Agent shall maintain a copy of each Assignment Agreement delivered to
and accepted by it as provided in this subsection 10.1B(ii).
(iii) Company Consent. If the consent of Company to an
assignment or to an Eligible Assignee is required hereunder (including a
consent to an assignment which does not meet the minimum assignment
thresholds specified in subsection 10.1B(i)), Company shall be deemed to
have given its consent five Business Days after the date notice thereof
has been delivered by the assigning Lender (through Administrative
Agent) unless such consent is expressly refused by Company in writing
prior to such fifth Business Day.
(iv) Special Purpose Funding Vehicles. Notwithstanding anything
to the contrary contained herein, any Lender (a "GRANTING LENDER") may
grant to a special purpose funding vehicle (a "SPC"), identified as such
in writing from time to time by the Granting Lender to the
Administrative Agent and Company, the option to provide to
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Company all or any part of any Loan that such Granting Lender would
otherwise be obligated to make to Company pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by any
SPC to make any Loan, and (ii) if an SPC elects not to exercise such
option or otherwise fails to provide all or any part of such Loan, the
Granting Lender shall be obligated to make such Loan pursuant to the
terms hereof. The making of a Loan by an SPC hereunder shall utilize the
Commitment of the Granting Lender to the same extent, and as if, such
Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement (all liability for which shall remain
with the Granting Lender). In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of
this Agreement) that, prior to the date that is one year and one day
after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against, or join
any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under
the laws of the United States or any state thereof. In addition,
notwithstanding anything to the contrary contained in this subsection
10.1B(iv), any SPC may (i) with notice to, but without the prior written
consent of, Company and the Administrative Agent and without paying any
processing fee therefor, assign all or a portion of its interests in any
Loans to the Granting Lender or to any financial institutions (consented
to by Company and Administrative Agent) providing liquidity and/or
credit support to or for the account of such SPC to support the funding
or maintenance of Loans and (ii) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit
or liquidity enhancement to such SPC. This subsection 10.1B(iv) may not
be amended without the written consent of the SPC.
C. PARTICIPATIONS. Any Lender may, without the consent of, or
notice to, Company or Administrative Agent, sell participations to one or more
banks or other entities in all or a portion of such Lender's rights and/or
obligations under this Agreement; provided that (i) such Lender's obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (iii) Company, Administrative Agent and Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver
directly affecting (i) the extension of the scheduled final maturity date of any
Loan allocated to such participation or (ii) a reduction of the principal amount
of or the rate of interest payable on any Loan allocated to such participation.
Subject to the further provisions of this subsection 10.1C, Company agrees that
each Participant shall be entitled to the benefits of subsections 2.6D and 2.7
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection 10.1B. To the extent permitted by law, each
Participant also shall be entitled to the benefits of subsection 10.4 as though
it were a Lender, provided such Participant agrees to be subject to subsection
10.5 as though it were a
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Lender. A Participant shall not be entitled to receive any greater payment under
subsections 2.6D and 2.7 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant unless the
sale of the participation to such Participant is made with Company's prior
written consent. A Participant that would be a Non-US Lender if it were a Lender
shall not be entitled to the benefits of subsection 2.7.
D. PLEDGES AND ASSIGNMENTS. Any Lender may at any time pledge or
assign a security interest in all or any portion of its Loans, and the other
Obligations owed to such Lender, to secure obligations of such Lender, including
without limitation any pledge or assignment to secure obligations to any Federal
Reserve Bank and any Lender which is a Fund may pledge its Notes to a trustee
for the benefit of its investors; provided that (i) no Lender shall be relieved
of any of its obligations hereunder as a result of any such assignment or pledge
and (ii) in no event shall any assignee or pledgee be considered to be a
"Lender" or be entitled to require the assigning Lender to take or omit to take
any action hereunder.
E. INFORMATION. Each Lender may furnish any information
concerning Company and its Subsidiaries in the possession of that Lender from
time to time to assignees and participants (including prospective assignees and
participants), subject to subsection 10.19.
F. AGREEMENTS OF LENDERS. Each Lender listed on the signature
pages hereof hereby agrees (i) that it is an Eligible Assignee described in
clause (ii) of the definition thereof; (ii) that it has experience and expertise
in the making of loans such as the Loans; and (iii) that it will make its Loans
for its own account in the ordinary course of its business and without a view to
distribution of such Loans within the meaning of the Securities Act or the
Exchange Act or other federal securities laws (it being understood that, subject
to the provisions of this subsection 10.1, the disposition of such Loans or any
interests therein shall at all times remain within its exclusive control). Each
Lender that becomes a party hereto pursuant to an Assignment Agreement shall be
deemed to agree that the agreements of such Lender contained in Section 2(c) of
such Assignment Agreement are incorporated herein by this reference.
10.2 EXPENSES.
Whether or not the transactions contemplated hereby shall be
consummated, Company agrees to pay promptly (i) all the actual and reasonable
costs and expenses of negotiation, preparation and execution of the Loan
Documents and any consents, amendments, waivers or other modifications thereto;
(ii) all the costs of furnishing all opinions by counsel for Company (including
any opinions requested by Administrative Agent or Lenders as to any legal
matters arising hereunder) and of Company's performance of and compliance with
all agreements and conditions on its part to be performed or complied with under
this Agreement and the other Loan Documents including with respect to confirming
compliance with environmental, insurance and solvency requirements; (iii) the
reasonable fees, expenses and disbursements of counsel to Administrative Agent
(including allocated costs of internal counsel) in connection with the
negotiation, preparation, execution and administration of the Loan Documents and
any consents, amendments, waivers or other modifications thereto and any other
documents or matters requested by Company; (iv) all the actual costs and
reasonable expenses of creating and perfecting Liens in favor of Administrative
Agent on behalf of Lenders pursuant to
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any Collateral Document, including filing and recording fees, expenses and
taxes, stamp or documentary taxes, search fees, title insurance premiums, and
reasonable fees, expenses and disbursements of counsel to Administrative Agent
and of counsel providing any opinions that Administrative Agent or Requisite
Lenders may request in respect of the Collateral Documents or the Liens created
pursuant thereto; (v) all the actual costs and reasonable expenses (including
the reasonable fees, expenses and disbursements of any auditors, accountants or
appraisers and any environmental or other consultants, advisors and agents
employed or retained by Administrative Agent or its counsel) of obtaining and
reviewing any environmental audits or reports provided for under subsection 4.1K
or 6.9A; (vi) the costs incurred by Administrative Agent in connection with the
custody or preservation of any of the Collateral; (vii) all other actual and
reasonable costs and expenses incurred by Administrative Agent in connection
with the syndication of the Commitments; and (viii) all costs and expenses,
including reasonable attorneys' fees (including allocated costs of internal
counsel) and costs of settlement, incurred by Administrative Agent and Lenders
in enforcing any Obligations of or in collecting any payments due from any Loan
Party or otherwise protecting the interests of the Administrative Agent and the
Lenders hereunder or under the other Loan Documents (including in connection
with the sale of, collection from, or other realization upon any of the
Collateral or the enforcement of the Subsidiary Guaranty) or in connection with
any refinancing or restructuring of the credit arrangements provided under this
Agreement in the nature of a "work-out" or pursuant to any insolvency or
bankruptcy proceedings.
10.3 INDEMNITY.
In addition to the payment of expenses pursuant to subsection
10.2, whether or not the transactions contemplated hereby shall be consummated,
Company agrees to defend (subject to Indemnitees' selection of counsel),
indemnify, pay and hold harmless Administrative Agent and Lenders, and the
officers, directors, employees, agents and affiliates of Administrative Agent
and Lenders (collectively called the "INDEMNITEES"), from and against any and
all Indemnified Liabilities (as hereinafter defined); provided that Company
shall not have any obligation to any Indemnitee hereunder with respect to any
Indemnified Liabilities to the extent such Indemnified Liabilities arise solely
from the gross negligence or willful misconduct of that Indemnitee as determined
by a final judgment of a court of competent jurisdiction.
As used herein, "INDEMNIFIED LIABILITIES" means, collectively,
any and all liabilities, obligations, losses, damages (including natural
resource damages), penalties, actions, judgments, suits, claims (including
Environmental Claims), costs (including the costs of any investigation, study,
sampling, testing, abatement, cleanup, removal, remediation or other response
action necessary to remove, remediate, clean up or ▇▇▇▇▇ any Hazardous Materials
Activity), expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel for Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened by any Person, whether or not any such Indemnitee shall
be designated as a party or a potential party thereto, and any fees or expenses
incurred by Indemnitees in enforcing this indemnity), whether direct, indirect
or consequential and whether based on any federal, state or foreign laws,
statutes, rules or regulations (including securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may
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be imposed on, incurred by, or asserted against any such Indemnitee, in any
manner relating to or arising out of (i) this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby (including Lenders'
agreement to make the Loans hereunder or the use or intended use of the proceeds
thereof or the issuance of Letters of Credit hereunder or the use or intended
use of any thereof, or any enforcement of any of the Loan Documents (including
any sale of, collection from, or other realization upon any of the Collateral or
the enforcement of the Subsidiary Guaranty)), (ii) the statements contained in
the commitment letter delivered by any Lender to Company with respect thereto,
or (iii) any Environmental Claim or any Hazardous Materials Activity relating to
or arising from, directly or indirectly, any past or present activity,
operation, land ownership, or practice of Company or any of its Subsidiaries;
provided that, in the case of the legal fees and disbursements of an
Indemnitee's legal counsel that is separate from the legal counsel for the
Indemnitees as a group, that Indemnitee shall have been reasonably advised by
legal counsel for the Indemnitees as a group that it would be prudent for that
Indemnitee to have legal representation separate from that provided by legal
counsel for the Indemnitees as a group.
To the extent that the undertakings to defend, indemnify, pay
and hold harmless set forth in this subsection 10.3 may be unenforceable in
whole or in part because they are violative of any law or public policy, Company
shall contribute the maximum portion that it is permitted to pay and satisfy
under applicable law to the payment and satisfaction of all Indemnified
Liabilities incurred by Indemnitees or any of them.
NO INDEMNITEE SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY
TO ANY LOAN DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH
PERSON OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR
INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A
RESULT OF CREDIT HAVING BEEN EXTENDED, SUSPENDED OR TERMINATED UNDER ANY LOAN
DOCUMENT OR AS A RESULT OF ANY OTHER TRANSACTION CONTEMPLATED HEREUNDER OR
THEREUNDER.
10.4 SET-OFF; SECURITY INTEREST IN DEPOSIT ACCOUNTS.
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default each Lender is hereby authorized by Company
at any time or from time to time, without notice to Company or to any other
Person, any such notice being hereby expressly waived, to set off and to
appropriate and to apply any and all deposits (general or special, including
Indebtedness evidenced by certificates of deposit, whether matured or unmatured,
but not including trust accounts) and any other Indebtedness at any time held or
owing by that Lender or any Affiliate of such Lender to or for the credit or the
account of Company and each other Loan Party against and on account of the
obligations and liabilities of Company or any other Loan Party to that Lender
(or any Affiliate of such Lender) or to any other Lender (or any Affiliate of
any other Lender) under this Agreement, the Letters of Credit and participations
therein and the other Loan Documents, including all claims of any nature or
description arising out of or connected with this Agreement, the Letters of
Credit and participations therein or any other Loan Document, irrespective of
whether or not
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(i) that Lender shall have made any demand hereunder or (ii) the principal of or
the interest on the Loans or any amounts in respect of the Letters of Credit or
any other amounts due hereunder shall have become due and payable pursuant to
Section 8 and although said obligations and liabilities, or any of them, may be
contingent or unmatured. Company hereby further grants to Administrative Agent
and each Lender a security interest in all deposits and accounts maintained with
Administrative Agent or such Lender as security for the Obligations.
10.5 RATABLE SHARING.
Lenders hereby agree among themselves that if any of them shall,
whether by voluntary payment (other than a voluntary prepayment of Loans made
and applied in accordance with the terms of this Agreement), by realization upon
security, through the exercise of any right of set-off or banker's lien, by
counterclaim or cross action or by the enforcement of any right under the Loan
Documents or otherwise, or as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in
respect of Letters of Credit, fees and other amounts then due and owing to that
Lender hereunder or under the other Loan Documents (collectively, the "AGGREGATE
AMOUNTS DUE" to such Lender) that is greater than the proportion received by any
other Lender in respect of the Aggregate Amounts Due to such other Lender, then
the Lender receiving such proportionately greater payment shall (i) notify
Administrative Agent and each other Lender of the receipt of such payment and
(ii) apply a portion of such payment to purchase assignments (which it shall be
deemed to have purchased from each seller of an assignment simultaneously upon
the receipt by such seller of its portion of such payment) of the Aggregate
Amounts Due to the other Lenders so that all such recoveries of Aggregate
Amounts Due shall be shared by all Lenders in proportion to the Aggregate
Amounts Due to them; provided that if all or part of such proportionately
greater payment received by such purchasing Lender is thereafter recovered from
such Lender upon the bankruptcy or reorganization of Company or otherwise, those
purchases shall be rescinded and the purchase prices paid for such assignments
shall be returned to such purchasing Lender ratably to the extent of such
recovery, but without interest. Company expressly consents to the foregoing
arrangement and agrees that any purchaser of an assignment so purchased may
exercise any and all rights of a Lender as to such assignment as fully as if
that Lender had complied with the provisions of subsection 10.1B with respect to
such assignment. In order to further evidence such assignment (and without
prejudice to the effectiveness of the assignment provisions set forth above),
each purchasing Lender and each selling Lender agree to enter into an Assignment
Agreement at the request of a selling Lender or a purchasing Lender, as the case
may be, in form and substance reasonably satisfactory to each such Lender.
Notwithstanding anything to the contrary in this Agreement or the other Loan
Documents, the parties acknowledge and agree that neither General Electric
Capital Corporation nor any Affiliate thereof shall have any obligation to share
in any manner any payments received or realized by such parties in connection
with any relationship (other than as a Lender hereunder) between such parties
and Company and its Subsidiaries, including, without limitation, the Gulfstream
Lease.
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10.6 AMENDMENTS AND WAIVERS.
No amendment, modification, termination or waiver of any
provision of any Loan Document, and no consent to any departure by Company
therefrom, shall in any event be effective without the written concurrence of
Requisite Lenders; provided that no such amendment, modification, termination,
waiver or consent shall, without the consent of (a) each Lender with Obligations
directly affected (whose consent shall be required for any such amendment,
modification, termination or waiver in addition to that of Requisite Lenders)
(1) reduce the principal amount of any Loan, (2) postpone the scheduled final
maturity date of any Loan, postpone the date or reduce the amount of any
scheduled payment (but not prepayment) of principal of any Loan, (3) postpone
the date on which any interest or any fees are payable, (4) decrease the
interest rate borne by any Loan (other than any waiver of any increase in the
interest rate applicable to any of the Loans pursuant to subsection 2.2E) or the
amount of any fees payable hereunder, (5) reduce the amount or postpone the due
date of any amount payable in respect of any Letter of Credit, (6) extend the
expiration date of any Letter of Credit beyond the Revolving Loan Commitment
Termination Date or (7) change in any manner the obligations of Revolving
Lenders relating to the purchase of participations in Letters of Credit or Swing
Line Loans; (b) each Lender, (1) change in any manner the definition of "Class"
or the definition of "Pro Rata Share" or the definition of "Requisite Class
Lenders" or the definition of "Requisite Lenders" (except for any changes
resulting solely from an increase in Commitments approved by Requisite Lenders),
(2) change in any manner any provision of any Loan Document that, by its terms,
expressly requires the approval or concurrence of all Lenders, (3) increase the
maximum duration of Interest Periods permitted hereunder, (4) release any Lien
granted in favor of Administrative Agent with respect to all or substantially
all of the Collateral or agree to subordinate any such Lien with respect to all
or substantially all of the Collateral to any other creditor or release all or
substantially all of the Subsidiary Guarantors from their obligations under the
Subsidiary Guaranty, in each case other than in accordance with the terms of the
Loan Documents, or (5) change in any manner or waive the provisions contained in
subsection 8.1 or this subsection 10.6. In addition, (i) no amendment,
modification, termination or waiver of any provision of any Note shall be
effective without the written concurrence of the Lender which is the holder of
that Note, (ii) no amendment, modification, termination or waiver of any
provision of subsection 2.1A(iii) or of any other provision of this Agreement
relating to the Swing Line Loan Commitment or the Swing Line Loans shall be
effective without the written concurrence of Swing Line Lender, (iii) no
amendment, modification, termination or waiver of any provision of Section 3
shall be effective without the written concurrence of Administrative Agent and,
with respect to the purchase of participations in Letters of Credit, without the
written concurrence of each Issuing Lender that has issued an outstanding Letter
of Credit or has not been reimbursed for a payment under a Letter of Credit,
(iv) no amendment, modification, termination or waiver of any provision of
subsection 4.2, subsection 4.3 or any waiver of any Event of Default or
Potential Event of Default shall be effective without the written concurrence of
Lenders having or holding more than 50% of the aggregate Revolving Loan Exposure
of all Lenders and more than 50% of the aggregate Term Loan Exposure of all
Lenders, (v) no amendment, modification, termination or waiver of any provision
of Section 9 or of any other provision of this Agreement which, by its terms,
expressly requires the approval or concurrence of Administrative Agent shall be
effective without the written concurrence of Administrative Agent, and (vi) no
amendment,
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modification, termination or waiver of any provision of subsection 2.4 that has
the effect of changing any interim scheduled payments, voluntary or mandatory
prepayments, or Commitment reductions applicable to a Class in a manner that
disproportionately disadvantages such Class relative to any other Class shall be
effective without the written concurrence of Requisite Class Lenders of such
affected Class (it being understood and agreed that any amendment, modification,
termination or waiver of any such provision which only postpones or reduces any
interim scheduled payment, voluntary or mandatory prepayment, or Commitment
reduction from those set forth in subsection 2.4 with respect to one Class but
not any other Class shall be deemed to disproportionately disadvantage such one
Class but not to disproportionately disadvantage any such other Class for
purposes of this clause (vi)). Administrative Agent may, but shall have no
obligation to, with the concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of that Lender. Any waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it was given. No notice to or demand on Company in any case
shall entitle Company to any other or further notice or demand in similar or
other circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this subsection 10.6 shall be binding upon each
Lender at the time outstanding, each future Lender and, if signed by Company, on
Company.
10.7 INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given independent effect so
that if a particular action or condition is not permitted by any of such
covenants, the fact that it would be permitted by an exception to, or would
otherwise be within the limitations of, another covenant shall not avoid the
occurrence of an Event of Default or Potential Event of Default if such action
is taken or condition exists.
10.8 NOTICES; EFFECTIVENESS OF SIGNATURES.
Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be in writing
and may be personally served, or sent by telefacsimile or United States mail or
courier service and shall be deemed to have been given when delivered in person
or by courier service, upon receipt of telefacsimile in complete and legible
form, or three Business Days after depositing it in the United States mail with
postage prepaid and properly addressed; provided that notices to Administrative
Agent shall not be effective until received. For the purposes hereof, the
address of each party hereto shall be as set forth under such party's name on
the signature pages hereof or (i) as to Company and Administrative Agent, such
other address as shall be designated by such Person in a written notice
delivered to the other parties hereto and (ii) as to each other party, such
other address as shall be designated by such party in a written notice delivered
to Administrative Agent. Electronic mail may be used to distribute routine
communications, such as financial statements and other information; provided,
however, that no signature with respect to any notice, request, agreement,
waiver, amendment or other document or any notice that is intended to have
binding effect may be sent by electronic mail.
Loan Documents and notices under the Loan Documents may be
transmitted and/or signed by facsimile. The effectiveness of any such documents
and signatures shall,
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subject to applicable law, have the same force and effect as an original copy
with manual signatures and shall be binding on all Loan Parties, Agents and
Lenders. Administrative Agent may also require that any such documents and
signature be confirmed by a manually-signed copy thereof; provided, however,
that the failure to request or deliver any such manually-signed copy shall not
affect the effectiveness of any facsimile document or signature.
10.9 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
A. All representations, warranties and agreements made herein
shall survive the execution and delivery of this Agreement and the making of the
Loans and the issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by law
to the contrary, the agreements of Company set forth in subsections 2.6D, 2.7,
3.5A, 10.2, 10.3, 10.4, 10.17 and 10.18 and the agreements of Lenders set forth
in subsections 2.8C, 9.2C, 9.4, 10.5 and 10.18 shall survive the payment of the
Loans, the cancellation or expiration of the Letters of Credit and the
reimbursement of any amounts drawn thereunder, and the termination of this
Agreement.
10.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of an Agent or any Lender in the
exercise of any power, right or privilege hereunder or under any other Loan
Document shall impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
10.11 MARSHALLING; PAYMENTS SET ASIDE.
Neither any Agent nor any Lender shall be under any obligation
to marshal any assets in favor of Company or any other party or against or in
payment of any or all of the Obligations. To the extent that Company makes a
payment or payments to Administrative Agent or Lenders (or to Administrative
Agent for the benefit of Lenders), or Agents or Lenders enforce any security
interests or exercise their rights of setoff, and such payment or payments or
the proceeds of such enforcement or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, any other state or federal law, common law or any equitable
cause, then, to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, rights and remedies therefor
or related thereto, shall be revived and continued in full force and effect as
if such payment or payments had not been made or such enforcement or setoff had
not occurred.
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10.12 SEVERABILITY.
In case any provision in or obligation under this Agreement or
the Notes shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
10.13 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS.
The obligations of Lenders hereunder are several and no Lender
shall be responsible for the obligations or Commitments of any other Lender
hereunder. Nothing contained herein or in any other Loan Document, and no action
taken by Lenders pursuant hereto or thereto, shall be deemed to constitute
Lenders, or Lenders and Company, as a partnership, an association, a joint
venture or any other kind of entity. The amounts payable at any time hereunder
to each Lender shall be a separate and independent debt, and each Lender shall
be entitled to protect and enforce its rights arising out of this Agreement and
it shall not be necessary for any other Lender to be joined as an additional
party in any proceeding for such purpose.
10.14 HEADINGS.
Section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
10.15 APPLICABLE LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE APPLICATION OF ANOTHER LAW.
10.16 CONSTRUCTION OF AGREEMENT; NATURE OF RELATIONSHIP.
Each of the parties hereto acknowledges that (i) it has been
represented by counsel in the negotiation and documentation of the terms of this
Agreement, (ii) it has had full and fair opportunity to review and revise the
terms of this Agreement, (iii) this Agreement has been drafted jointly by all of
the parties hereto, and (iv) neither Administrative Agent nor any Lender or
other Agent has any fiduciary relationship with or duty to Company arising out
of or in connection with this Agreement or any of the other Loan Documents, and
the relationship between Administrative Agent, the other Agents and Lenders, on
one hand, and Company, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor. Accordingly, each of the parties hereto
acknowledges and agrees that the terms of this Agreement shall not be construed
against or in favor of another party.
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10.17 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS
THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇. BY EXECUTING AND
DELIVERING THIS AGREEMENT, COMPANY, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING
IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO COMPANY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SUBSECTION 10.8;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER COMPANY IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST COMPANY IN
THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 10.17
RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO
THE FULLEST EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW
SECTION 5-1402 OR OTHERWISE.
10.18 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver
is intended to be all-encompassing of any and all disputes that may be filed in
any court and that relate to the subject matter of this transaction, including
contract claims, tort
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claims, breach of duty claims and all other common law and statutory claims.
Each party hereto acknowledges that this waiver is a material inducement to
enter into a business relationship, that each has already relied on this waiver
in entering into this Agreement, and that each will continue to rely on this
waiver in their related future dealings. Each party hereto further warrants and
represents that it has reviewed this waiver with its legal counsel and that it
knowingly and voluntarily waives its jury trial rights following consultation
with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER
SPECIFICALLY REFERRING TO THIS SUBSECTION 10.18 AND EXECUTED BY EACH OF THE
PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS
MADE HEREUNDER. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
10.19 CONFIDENTIALITY.
Each Lender shall hold all non-public information obtained
pursuant to the requirements of this Agreement that has been identified in
writing as confidential by Company in accordance with such Lender's customary
procedures for handling confidential information of this nature, it being
understood and agreed by Company that in any event a Lender may make disclosures
(a) to its and its Affiliates' directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such information and instructed to keep such information
confidential), (b) to the extent requested by any Government Authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this subsection 10.19, to (i) any Eligible Assignee of or participant
in, or any prospective Eligible Assignee of or Participant in, any of its rights
or obligations under this Agreement or (ii) any direct or indirect contractual
counterparty or prospective counterparty (or such contractual counterparty's or
prospective counterparty's professional advisor) to any credit derivative
transaction relating to obligations of Company, (g) with the consent of Company,
(h) to the extent such information (i) becomes publicly available other than as
a result of a breach of this subsection 10.19 by such Lender or its directors,
officers, employees or agents, or (ii) becomes available to Administrative Agent
or any Lender on a nonconfidential basis from a source other than Company or (i)
to the National Association of Insurance Commissioners or any other similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's or its Affiliates' investment portfolio in
connection with ratings issued with respect to such Lender or its Affiliates and
that no written or oral communications from counsel to Administrative Agent and
no information that is or is designated as privileged or as attorney work
product may be disclosed to any Person unless such Person is a Lender or a
participant hereunder; provided that, unless specifically prohibited by
applicable law or court order, each Lender shall use its commercially reasonable
efforts to notify Company of any
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request by any Government Authority or representative thereof (other than any
such request in connection with any examination of the financial condition of
such Lender by such Government Authority) for disclosure of any such non-public
information prior to disclosure of such information; and provided, further that
in no event shall any Lender be obligated or required to return any materials
furnished by Company or any of its Subsidiaries.
10.20 COUNTERPARTS; EFFECTIVENESS.
This Agreement and any amendments, waivers, consents or
supplements hereto or in connection herewith may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto.
[Remainder of page intentionally left blank]
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133
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
COMPANY:
THE ▇▇▇▇▇▇▇▇ GROUP, INC.
By:
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President, Chief
Financial Officer and Assistant
Secretary
Notice Address:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇/Chief Financial
Officer
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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LENDERS:
CREDIT SUISSE FIRST BOSTON,
individually and as Administrative Agent
By:
----------------------------------
Title:
----------------------------------
By:
----------------------------------
Title:
----------------------------------
Notice Address:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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GENERAL ELECTRIC CAPITAL CORPORATION,
as Co-Arranger and Syndication Agent
By:
----------------------------------
Title:
----------------------------------
Notice Address:
GE Capital -- Commercial Finance
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Reference: ▇▇▇▇▇▇▇▇
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EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF REQUEST FOR ISSUANCE OF LETTER OF CREDIT
IV FORM OF SECURITIES AGREEMENTS
V FORM OF TERM NOTE
VI FORM OF REVOLVING NOTE
VII FORM OF SWING LINE NOTE
VIII FORM OF COMPLIANCE CERTIFICATE
IX FORM OF OPINION OF COMPANY COUNSEL
X FORM OF OPINION OF O'MELVENY & ▇▇▇▇▇ LLP
XI FORM OF ASSIGNMENT AGREEMENT
XII FORM OF SOLVENCY CERTIFICATE
XIII FORM OF SUBSIDIARY GUARANTY
XIV FORM OF SECURITY AGREEMENT
XV(A) FORM OF DEED OF TRUST
XV(B) FORM OF MORTGAGE
XVI FORM OF ENVIRONMENTAL INDEMNITY AGREEMENT
137
EXHIBIT I
FORM OF NOTICE OF BORROWING
NOTICE OF BORROWING
Pursuant to that certain Credit Agreement dated as of September
__, 2001, as amended, supplemented, restated or otherwise modified to the date
hereof (said Credit Agreement, as so amended, supplemented, restated or
otherwise modified, being the "CREDIT AGREEMENT", the terms defined therein and
not otherwise defined herein being used herein as therein defined), by and among
The ▇▇▇▇▇▇▇▇ Group, Inc., a Delaware corporation ("COMPANY"), the financial
institutions listed therein as Lenders ("LENDERS"), and Credit Suisse First
Boston, as Administrative Agent ("ADMINISTRATIVE AGENT"), this represents
Company's request to borrow as follows:
Date of borrowing: ___________________, _________
Amount of borrowing: $___________________
Type of Loans: [ ] a.Term Loans
[ ] b.Revolving Loans
[ ] c.Swing Line Loan
Interest rate option: [ ] a.Base Rate Loan(s)
[ ] b.Eurodollar Rate Loans with an initial
Interest Period of ____________ month(s)
The Administrative Agent shall deposit the proceeds of the Loans
in the account of Company using the following remittance instructions:__________
_______________________________________________________________________________.
The undersigned officer, to the best of his or her knowledge,
and Company certify that:
(i) The representations and warranties contained in the Credit
Agreement and the other Loan Documents are true, correct and complete in all
material respects on and as of the date hereof to the same extent as though made
on and as of the date hereof, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties were true, correct and complete in all material
respects on and as of such earlier date;
(ii) No event has occurred and is continuing or would result
from the consummation of the borrowing contemplated hereby that would constitute
an Event of Default or a Potential Event of Default;
(iii) Each Loan Party has performed in all material respects all
agreements and satisfied all conditions which the Credit Agreement provides
shall be performed or satisfied by it on or before the date hereof; and
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138
(iv) The undersigned has read this Notice of Borrowing and any
definitions or other provisions contained in the Credit Agreement relating
thereto, and in the opinion of the undersigned, (a) has made or caused to be
made such examination or investigation as is reasonably necessary to enable the
undersigned to express an informed opinion as to the compliance with all
conditions precedent to the making of any Loans requested hereunder, and (b) all
conditions precedent to the making of any such Loans have been complied with.
DATED:
------------------------
THE ▇▇▇▇▇▇▇▇ GROUP, INC.
By:
---------------------------------
Title:
------------------------------
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EXHIBIT II
FORM OF NOTICE OF CONVERSION/CONTINUATION
NOTICE OF CONVERSION/CONTINUATION
Pursuant to that certain Credit Agreement dated as of September
__, 2001, as amended, supplemented, restated or otherwise modified to the date
hereof (said Credit Agreement, as so amended, supplemented, restated or
otherwise modified, being the "CREDIT AGREEMENT", the terms defined therein and
not otherwise defined herein being used herein as therein defined), by and among
The ▇▇▇▇▇▇▇▇ Group, Inc., a Delaware corporation ("COMPANY"), the financial
institutions listed therein as Lenders, and Credit Suisse First Boston, as
Administrative Agent, this represents Company's request to convert or continue
Loans as follows:
1. Date of conversion/continuation: __________________, _______
2. Amount of Loans being converted/continued: $___________________
3. Type of Loans being converted/continued:
[ ] a. Term Loans
[ ] b. Revolving Loans
4. Nature of conversion/continuation:
[ ] a. Conversion of Base Rate Loans to Eurodollar Rate Loans
[ ] b. Conversion of Eurodollar Rate Loans to Base Rate Loans
[ ] c. Continuation of Eurodollar Rate Loans as such
5. If Loans are being continued as or converted to Eurodollar Rate Loans,
the duration of the new Interest Period that commences on the
conversion/ continuation date: _______________ month(s)
In the case of a conversion to or continuation of Eurodollar
Rate Loans, the undersigned officer, to the best of his or her knowledge, and
Company certify that no Event of Default or Potential Event of Default has
occurred and is continuing under the Credit Agreement.
DATED:
------------------------
THE ▇▇▇▇▇▇▇▇ GROUP, INC.
By:
---------------------------------
Title:
------------------------------
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EXHIBIT III
FORM OF REQUEST FOR ISSUANCE OF LETTER OF CREDIT
REQUEST FOR ISSUANCE OF LETTER OF CREDIT
Pursuant to that certain Credit Agreement dated as of September
__, 2001, as amended, supplemented, restated or otherwise modified to the date
hereof (said Credit Agreement, as so amended, supplemented, restated or
otherwise modified, being the "CREDIT AGREEMENT", the terms defined therein and
not otherwise defined herein being used herein as therein defined), by and among
The ▇▇▇▇▇▇▇▇ Group, Inc., a Delaware corporation ("COMPANY"), the financial
institutions listed therein as Lenders, and Credit Suisse First Boston, as
Administrative Agent ("ADMINISTRATIVE AGENT"), this represents Company's request
for the issuance of a Letter of Credit by [Administrative Agent][name of other
Lender] as follows:
1. Issuing Lender: a. Administrative Agent
b. [_________________________________]
2. Date of issuance of Letter of Credit: ________________, ________
3. Type of Letter of Credit: [ ] a. Commercial Letter of Credit
[ ] b. Standby Letter of Credit
4. Face amount of Letter of Credit: $________________________
5. Expiration date of Letter of Credit: ________________, ________
7. Name and address of beneficiary:
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
8. Attached hereto is:
[ ] a. the verbatim text of such proposed Letter of Credit
[ ] b. a description of the proposed terms and conditions of such Letter
of Credit, including a precise description of any documents to be presented by
the beneficiary which, if presented by the beneficiary prior to the expiration
date of such Letter of Credit, would require the Issuing Lender to make payment
under such Letter of Credit.
The undersigned officer, to the best of his or her knowledge,
and Company certify that:
(i) The representations and warranties contained in the Credit
Agreement and the other Loan Documents are true, correct and complete in
all material respects on and as of the date hereof to the same extent as
though made on and as of the date hereof, except to the extent such
representations and warranties specifically relate to an earlier
III-1
141
date, in which case such representations and warranties were true,
correct and complete in all material respects on and as of such earlier
date;
(ii) No event has occurred and is continuing or would result
from the issuance of the Letter of Credit contemplated hereby that would
constitute an Event of Default or a Potential Event of Default;
(iii) Each Loan Party has performed in all material respects all
agreements and satisfied all conditions which the Credit Agreement
provides shall be performed or satisfied by it on or before the date
hereof; and
(iv) The undersigned has read this Request for Issuance of
Letter of Credit and any definitions or other provisions contained in
the Credit Agreement relating thereto, and in the opinion of the
undersigned, (a) has made or caused to be made such examination or
investigation as is reasonably necessary to enable the undersigned to
express an informed opinion as to the compliance with all conditions
precedent to the issuance of any Letter of Credit requested hereunder,
and (b) all conditions precedent to the issuance of any Letter of Credit
have been complied with.
DATED:
------------------------
THE ▇▇▇▇▇▇▇▇ GROUP, INC.
By:
---------------------------------
Title:
------------------------------
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EXHIBIT V
FORM OF TERM NOTE
THE ▇▇▇▇▇▇▇▇ GROUP, INC.
$____________ New York, New York
September __, 2001
FOR VALUE RECEIVED, THE ▇▇▇▇▇▇▇▇ GROUP, INC., a Delaware
corporation ("COMPANY"), promises to pay to ________________ ("PAYEE") or its
registered assigns the principal amount of _________________________
($[__________________]). The principal amount of this Note shall be payable on
the dates and in the amounts specified in the Credit Agreement; provided that
the last such installment shall be in an amount sufficient to repay the entire
unpaid principal balance of this Note, together with all accrued and unpaid
interest thereon.
Company also promises to pay interest on the unpaid principal
amount hereof, from the date hereof until paid in full, at the rates and at the
times which shall be determined in accordance with the provisions of that
certain Credit Agreement dated as of September __, 2001 by and among Company,
the financial institutions listed therein as Lenders, and Credit Suisse First
Boston, as Administrative Agent (said Credit Agreement, as it may be amended,
supplemented, restated or otherwise modified from time to time, being the
"CREDIT AGREEMENT", the terms defined therein and not otherwise defined herein
being used herein as therein defined).
This Note is one of Company's "Term Notes" and is issued
pursuant to and entitled to the benefits of the Credit Agreement, to which
reference is hereby made for a more complete statement of the terms and
conditions under which the Term Loan evidenced hereby was made and is to be
repaid.
All payments of principal and interest in respect of this Note
shall be made in lawful money of the United States of America in same day funds
at the Funding and Payment Office or at such other place as shall be designated
in writing for such purpose in accordance with the terms of the Credit
Agreement. Unless and until an Assignment Agreement effecting the assignment or
transfer of this Note shall have been accepted by Administrative Agent and
recorded in the Register as provided in the Credit Agreement, Company and
Administrative Agent shall be entitled to deem and treat Payee as the owner and
holder of this Note and the Loan evidenced hereby. Payee hereby agrees, by its
acceptance hereof, that before disposing of this Note or any part hereof it will
make a notation hereon of all principal payments previously made hereunder and
of the date to which interest hereon has been paid; provided, however, that the
failure to make a notation of any payment made on this Note shall not limit or
otherwise affect the obligations of Company hereunder with respect to payments
of principal of or interest on this Note.
Whenever any payment on this Note shall be stated to be due on a
day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest on this Note.
V-1
143
This Note is subject to mandatory prepayment as provided in the
Credit Agreement and to prepayment at the option of Company as provided in the
Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance
of the principal amount of this Note, together with all accrued and unpaid
interest thereon, may become, or may be declared to be, due and payable in the
manner, upon the conditions and with the effect provided in the Credit
Agreement.
The terms of this Note are subject to amendment only in the
manner provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment
as provided in the Credit Agreement.
No reference herein to the Credit Agreement and no provision of
this Note or the Credit Agreement shall alter or impair the obligations of
Company, which are absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the currency
herein prescribed.
Company promises to pay all costs and expenses, including
reasonable attorneys' fees, all as provided in the Credit Agreement, incurred in
the collection and enforcement of this Note. Company and any endorsers of this
Note hereby consent to renewals and extensions of time at or after the maturity
hereof, without notice, and hereby waive diligence, presentment, protest, demand
and notice of every kind and, to the full extent permitted by law, the right to
plead any statute of limitations as a defense to any demand hereunder.
[Signature continued on following page]
V-2
144
IN WITNESS WHEREOF, Company has caused this Note to be duly
executed and delivered by its officer thereunto duly authorized as of the date
and at the place first written above.
THE ▇▇▇▇▇▇▇▇ GROUP, INC.
By:
---------------------------------
Title:
------------------------------
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145
EXHIBIT VI
FORM OF REVOLVING NOTE
THE ▇▇▇▇▇▇▇▇ GROUP, INC.
$_____________________ New York, New York
September __, 2001
FOR VALUE RECEIVED, THE ▇▇▇▇▇▇▇▇ GROUP, INC., a Delaware
corporation ("COMPANY"), promises to pay to ________________ ("PAYEE") or its
registered assigns, the lesser of (x) _______________________
($[____________________]) and (y) the unpaid principal amount of all advances
made by Payee to Company as Revolving Loans under the Credit Agreement referred
to below. The principal amount of this Note shall be payable on the dates and in
the amounts specified in the Credit Agreement; provided that the last such
installment shall be in an amount sufficient to repay the entire unpaid
principal balance of this Note, together with all accrued and unpaid interest
thereon.
Company also promises to pay interest on the unpaid principal
amount hereof, from the date hereof until paid in full, at the rates and at the
times which shall be determined in accordance with the provisions of that
certain Credit Agreement dated as of September __, 2001 by and among Company,
the financial institutions listed therein as Lenders, and Credit Suisse First
Boston, as Administrative Agent (said Credit Agreement, as it may be amended,
supplemented, restated or otherwise modified from time to time, being the
"CREDIT AGREEMENT", the terms defined therein and not otherwise defined herein
being used herein as therein defined).
This Note is one of Company's "Revolving Notes" and is issued
pursuant to and entitled to the benefits of the Credit Agreement, to which
reference is hereby made for a more complete statement of the terms and
conditions under which the Revolving Loans evidenced hereby were made and are to
be repaid.
All payments of principal and interest in respect of this Note
shall be made in lawful money of the United States of America in same day funds
at the Funding and Payment Office or at such other place as shall be designated
in writing for such purpose in accordance with the terms of the Credit
Agreement. Unless and until an Assignment Agreement effecting the assignment or
transfer of this Note shall have been accepted by Administrative Agent and
recorded in the Register as provided in the Credit Agreement, Company and
Administrative Agent shall be entitled to deem and treat Payee as the owner and
holder of this Note and the Loans evidenced hereby. Payee hereby agrees, by its
acceptance hereof, that before disposing of this Note or any part hereof it will
make a notation hereon of all principal payments previously made hereunder and
of the date to which interest hereon has been paid; provided, however, that the
failure to make a notation of any payment made on this Note shall not limit or
otherwise affect the obligations of Company hereunder with respect to payments
of principal of or interest on this Note.
Whenever any payment on this Note shall be stated to be due on a
day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest on this Note.
VI-1
146
This Note is subject to mandatory prepayment as provided in the
Credit Agreement and to prepayment at the option of Company as provided in the
Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance
of the principal amount of this Note, together with all accrued and unpaid
interest thereon, may become, or may be declared to be, due and payable in the
manner, upon the conditions and with the effect provided in the Credit
Agreement.
The terms of this Note are subject to amendment only in the
manner provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment
as provided in the Credit Agreement.
No reference herein to the Credit Agreement and no provision of
this Note or the Credit Agreement shall alter or impair the obligations of
Company, which are absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the currency
herein prescribed.
Company promises to pay all costs and expenses, including
reasonable attorneys' fees, all as provided in the Credit Agreement, incurred in
the collection and enforcement of this Note. Company and any endorsers of this
Note hereby consent to renewals and extensions of time at or after the maturity
hereof, without notice, and hereby waive diligence, presentment, protest, demand
and notice of every kind and, to the full extent permitted by law, the right to
plead any statute of limitations as a defense to any demand hereunder.
[Signature continued on following page]
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IN WITNESS WHEREOF, Company has caused this Note to be duly
executed and delivered by its officer thereunto duly authorized as of the date
and at the place first written above.
THE ▇▇▇▇▇▇▇▇ GROUP, INC.
By:
---------------------------------
Title:
------------------------------
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TRANSACTIONS
ON
REVOLVING NOTE
Outstanding
Type of Amount of Amount of Principal
Loan Made Loan Made Principal Paid Balance Notation
Date This Date This Date This Date This Date Made By
---- --------- --------- --------- --------- -------
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149
EXHIBIT VII
FORM OF SWING LINE NOTE
THE ▇▇▇▇▇▇▇▇ GROUP, INC.
$4,000,000 New York, New York
September __, 2001
FOR VALUE RECEIVED, THE ▇▇▇▇▇▇▇▇ GROUP, INC., a Delaware
corporation ("COMPANY"), promises to pay to CREDIT SUISSE FIRST BOSTON ("PAYEE")
or its registered assigns, the lesser of (x) Four Million Dollars ($4,000,000)
and (y) the unpaid principal amount of all advances made by Payee to Company as
Swing Line Loans under the Credit Agreement referred to below. The principal
amount of this Note shall be payable on the dates and in the amounts specified
in the Credit Agreement; provided that the last such installment shall be in an
amount sufficient to repay the entire unpaid principal balance of this Note,
together with all accrued and unpaid interest thereon.
Company also promises to pay interest on the unpaid principal
amount hereof, from the date hereof until paid in full, at the rates and at the
times which shall be determined in accordance with the provisions of that
certain Credit Agreement dated as of September __, 2001 by and among Company,
the financial institutions listed therein as Lenders, and Credit Suisse First
Boston, as Administrative Agent (said Credit Agreement, as it may be amended,
supplemented, restated or otherwise modified from time to time, being the
"CREDIT AGREEMENT", the terms defined therein and not otherwise defined herein
being used herein as therein defined).
This Note is Company's "Swing Line Note" and is issued pursuant
to and entitled to the benefits of the Credit Agreement, to which reference is
hereby made for a more complete statement of the terms and conditions under
which the Swing Line Loans evidenced hereby were made and are to be repaid.
All payments of principal and interest in respect of this Note
shall be made in lawful money of the United States of America in same day funds
at the Funding and Payment Office or at such other place as shall be designated
in writing for such purpose in accordance with the terms of the Credit
Agreement.
Whenever any payment on this Note shall be stated to be due on a
day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in the
Credit Agreement and to prepayment at the option of Company as provided in the
Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
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Upon the occurrence of an Event of Default, the unpaid balance
of the principal amount of this Note, together with all accrued and unpaid
interest thereon, may become, or may be declared to be, due and payable in the
manner, upon the conditions and with the effect provided in the Credit
Agreement.
The terms of this Note are subject to amendment only in the
manner provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment
as provided in the Credit Agreement.
No reference herein to the Credit Agreement and no provision of
this Note or the Credit Agreement shall alter or impair the obligations of
Company, which are absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the currency
herein prescribed.
Company promises to pay all costs and expenses, including
reasonable attorneys' fees, all as provided in the Credit Agreement, incurred in
the collection and enforcement of this Note. Company and any endorsers of this
Note hereby consent to renewals and extensions of time at or after the maturity
hereof, without notice, and hereby waive diligence, presentment, protest, demand
and notice of every kind and, to the full extent permitted by law, the right to
plead any statute of limitations as a defense to any demand hereunder.
[Signature continued on following page]
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IN WITNESS WHEREOF, Company has caused this Note to be duly
executed and delivered by its officer thereunto duly authorized as of the date
and at the place first written above.
THE ▇▇▇▇▇▇▇▇ GROUP, INC.
By:
---------------------------------
Title:
------------------------------
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TRANSACTIONS
ON
SWING LINE NOTE
Outstanding
Amount of Amount of Principal
Loan Made Principal Paid Balance Notation
Date This Date This Date This Date Made By
---- --------- --------- --------- -------
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EXHIBIT VIII
FORM OF COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
THE UNDERSIGNED HEREBY CERTIFY THAT:
(1) We are the duly elected [President] and [Chief Financial
Officer] of The ▇▇▇▇▇▇▇▇ Group, Inc., a Delaware corporation ("COMPANY");
(2) We have reviewed the terms of that certain Credit Agreement
dated as of September __, 2001, as amended, supplemented, restated or otherwise
modified to the date hereof (said Credit Agreement, as so amended, supplemented,
restated or otherwise modified, being the "CREDIT AGREEMENT", the terms defined
therein and not otherwise defined in this Certificate (including Attachment No.
1 annexed hereto and made a part hereof) being used in this Certificate as
therein defined), by and among Company, the financial institutions listed
therein as Lenders, and Credit Suisse First Boston, as Administrative Agent, and
the terms of the other Loan Documents, and we have made, or have caused to be
made under our supervision, a review in reasonable detail of the transactions
and condition of Company and its Subsidiaries during the accounting period
covered by the attached financial statements; and
(3) The examination described in paragraph (2) above did not
disclose, and we have no knowledge of, the existence of any condition or event
which constitutes an Event of Default or Potential Event of Default during or at
the end of the accounting period covered by the attached financial statements or
as of the date of this Certificate[, except as set forth below].
[Set forth [below] [in a separate attachment to this
Certificate] are all exceptions to paragraph (3) above listing, in detail, the
nature of the condition or event, the period during which it has existed and the
action which Company has taken, is taking, or proposes to take with respect to
each such condition or event:
______________________________________________________________________________]
The foregoing certifications, together with the computations set
forth in Attachment No. 1 annexed hereto and made a part hereof and the
financial statements delivered with this Certificate in support hereof, are made
and delivered this __________ day of _____________, ____ pursuant to subsection
6.1(iv) of the Credit Agreement.
THE ▇▇▇▇▇▇▇▇ GROUP, INC.
By:
---------------------------------
Title:
------------------------------
▇▇▇▇-▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇
TO COMPLIANCE CERTIFICATE
This Attachment No. 1 is attached to and made a part of a
Compliance Certificate dated as of ____________, ____ and pertains to the period
from ____________, ____ to ____________, ____. Subsection references herein
relate to subsections of the Credit Agreement.
A. INDEBTEDNESS
1. Indebtedness in respect of Capital Leases: $_____________
2. Maximum permitted under subsection 7.1(iii): $3,000,000
3. Indebtedness assumed in connection with acquisition of
Person or assets permitted under subsection 7.3 $_____________
4. Purchase money indebtedness $_____________
5. Sum of acquisitions permitted under subsection 7.3
and purchase money indebtedness (A.3+A.4) $_____________
6. Aggregate maximum permitted under
subsection 7.1(vii): $5,000,000
7. Unsecured indebtedness permitted under
subsection 7.1(viii): $_____________
8. Maximum permitted under subsection 7.1(viii): $5,000,000
B. LIENS
1. Liens securing Indebtedness permitted under
subsection 7.1(vii): $_____________
2. Maximum permitted under subsection 7.2A(iv): $5,000,000
3. Liens securing Indebtedness permitted under
subsection 7.1(iii): $_____________
4. Maximum permitted under subsection 7.2A(v): $3,000,000
5. Other Liens securing Indebtedness: $_____________
6. Maximum permitted under subsection 7.2A(vi): $5,000,000
C. INVESTMENTS
1. Investments permitted under subsection 7.3(vi)
since beginning of current Fiscal Year: $_____________
2. Maximum Investments permitted under subsection 7.3(vi)
for current Fiscal Year: [$2,000,000*]
[*$4,000,000 if the Consolidated Interest Coverage
Ratio equals or exceeds 2.00:1.00]
3. Aggregate Investments permitted under subsection
7.3(vi) since date of Credit Agreement: $_____________
4. Aggregate maximum Investments permitted under
subsection 7.3(vi) since date of Credit Agreement: [$5,000,000**]
[**$10,000,000 if the Consolidated Interest Coverage
Ratio equals or exceeds 2.00:1.00]
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D. RESTRICTED JUNIOR PAYMENTS
1. Restricted Junior Payments made since Closing Date
under subsection 7.5(ii): $_____________
2. Maximum Restricted Junior Payments permitted since
Closing Date under subsection 7.5(ii): $1,000,000
E. MINIMUM CONSOLIDATED INTEREST COVERAGE RATIO (FOR THE
FOUR-FISCAL QUARTER PERIOD ENDING _____________, ____)
1. Consolidated Net Income: $_____________
2. Consolidated Net Interest Expense: $_____________
3. Provisions for taxes based on income: $_____________
4. Total depreciation expense: $_____________
5. Total amortization expense: $_____________
6. Other non-cash items reducing Consolidated
Net Income: $_____________
7. For fiscal quarters ending prior to June
30, 2002, Schedule 1.1A adjustments $_____________
8. Other non-cash items increasing Consolidated
Net Income: $_____________
9. Consolidated EBITDA (1+2+3+4+5+6+7-8): $_____________
10. Interest Coverage Ratio (9):(2): ____:1.00
11. Minimum ratio required under subsection 7.6A: ____:1.00
F. MINIMUM FIXED CHARGE COVERAGE RATIO (FOR THE FOUR-FISCAL
QUARTER PERIOD ENDING _____________, ____)
1. Consolidated EBITDA (E.9 above): $_____________
2. Consolidated Cash Net Interest Expense: $_____________
3. Scheduled principal payments in respect of
Consolidated Total Debt $_____________
4. Provisions for taxes based on income
and paid in cash (excluding taxes paid in connection
with Asset Sales) $_____________
5. Consolidated Capital Expenditures: $_____________
6. Consolidated Fixed Charges (2+3+4+5): $_____________
7. Fixed Charge Coverage Ratio (1):(6): ____:1.00
8. Minimum ratio required under subsection 7.6B: ____:1.00
G. MAXIMUM CONSOLIDATED SENIOR LEVERAGE RATIO
(AS OF _____________, ____)
1. Consolidated Senior Debt: $_____________
2. Consolidated EBITDA (E.9 above): $_____________
3. Consolidated Senior Leverage Ratio (1):(2): ____:1.00
4. Maximum ratio permitted under subsection 7.6C: ____:1.00
H. FUNDAMENTAL CHANGES
1. Aggregate fair market value of Asset Sales
permitted under subsection 7.7(iv)
VIII-3
156
since date of Credit Agreement: $_____________
2. Aggregate maximum permitted under
subsection 7.7(iv): $25,000,000
3. Aggregate sales of additional Capital Stock
in the iKnow Subsidiaries permitted under
subsection 7.7(vii) $_____________
4. Aggregate maximum permitted under
subsection 7.7(vii) $5,000,000
I. CONSOLIDATED CAPITAL EXPENDITURES
1. Consolidated Capital Expenditures for Fiscal
Year-to-date: $_____________
2. Consolidated Capital Expenditures permitted under
subsection 7.8 in immediately preceding Fiscal Year: [$15,000,000***]
3. Consolidated Capital Expenditures actually
expended under subsection 7.8 in immediately
preceding Fiscal Year: $_____________
4. Amount of carry forward (lesser of (x) (I.2-I.3)
and (y) (.25 * I.2)) $_____________
5. Consolidated Capital Expenditures permitted under
subsection 7.8 for current Fiscal Year: [$15,000,000***]
6. Maximum amount of Consolidated Capital
Expenditures permitted under
subsection 7.8 for current Fiscal Year (I.4+I.5) $_____________
[*** Increased to $20,000,000 for a Fiscal Year if the
Consolidated Interest Coverage Ratio as of the last day
of the immediately preceding Fiscal Quarter equals or
exceeds 2.00:1.00]
VIII-4
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EXHIBIT IX
FORM OF OPINION OF COMPANY COUNSEL
September __, 2001
Credit Suisse First Boston
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and
The Lenders Signatory to the
Credit Agreement Referenced Below
Re: Credit Agreement dated as of September __, 2001, among The
▇▇▇▇▇▇▇▇ Group, Inc., the financial institutions signatory
thereto as Lenders, and Credit Suisse First Boston, as
Administrative Agent
Ladies and Gentlemen:
We have acted as counsel to The ▇▇▇▇▇▇▇▇ Group, Inc., a Delaware
corporation ("Company"), in connection with that certain Credit Agreement dated
as of September __, 2001 (the "Credit Agreement") among Company, the financial
institutions signatory thereto as Lenders ("Lenders"), and Credit Suisse First
Boston, as Administrative Agent ("Administrative Agent"). This opinion is
rendered to you at the request of the Company in compliance with subsection 4.1F
of the Credit Agreement. Capitalized terms used herein without definition have
the same meanings as in the Credit Agreement.
We have also acted as counsel to the subsidiaries listed on
Schedule A attached hereto in connection with the Credit Agreement and the
Transaction Documents (as defined below). The subsidiaries of the Company listed
on Schedule A attached hereto are collectively referred to herein as the
"Subsidiary Guarantors". The Company and the Subsidiary Guarantors are
collectively referred to herein as the "Loan Parties".
In our capacity as such counsel, we have examined originals, or
copies identified to our satisfaction as being true copies, of such records,
documents or other instruments as in our judgment are necessary or appropriate
to enable us to render the opinions expressed below. These records, documents
and instruments included the following:
(a) The Organizational Documents of each Loan Party, as amended
to date;
(b) All records of proceedings and actions of the Board of
Directors or other governing body of each Loan Party relating to the
Credit Agreement, the other Loan Documents (as defined below) and the
transactions contemplated thereby;
(c) The Credit Agreement;
▇▇-▇
▇▇▇
(▇) The Term Notes, Revolving Notes and Swing Line Note
delivered today (the "Notes").
(e) The Subsidiary Guaranty;
(f) The Security Agreement;
(g) Grant of Trademark Security Interest, Grant of Patent
Security Interest and Grant of Copyright Security Interest
(collectively, the "IP Grants");
(h) executed copies of UCC-1 Financing Statements naming Company
as debtor and Administrative Agent as secured party (the "Company
Financing Statements") to be filed in the locations described on Part I
of Schedule 4(i) to the Security Agreement (the "Company Filing
States");
(i) executed copies of UCC-1 Financing Statements naming each
Subsidiary Guarantor as debtor and Administrative Agent as secured party
(the "Subsidiary Financing Statements") to be filed in the locations
described on Part II of Schedule 4(i) to the Security Agreement (the
"Subsidiary Filing States"); and
(j) the Securities Agreements.
The documents referred to in paragraphs ▇-▇, inclusive, are
collectively referred to herein as the "Transaction Documents." The documents
referred to in paragraphs c-g, inclusive, and paragraph j are collectively
referred to herein as the "Loan Documents."
We have been furnished with, and with Administrative Agent's and
Lenders' consent have relied upon, certificates of officers of the Loan Parties
with respect to certain factual matters, copies of which have been delivered to
Administrative Agent and the Lenders. In addition, we have obtained and relied
upon such certificates and assurances from public officials as we have deemed
necessary, copies of which have been delivered to Administrative Agent and the
Lenders. In all such examinations, we have assumed the genuineness of all
signatures on original and certified documents, and the conformity to original
or certified documents of all documents submitted to us as conformed or
photostatic copies.
We have investigated such questions of law for the purpose of
rendering this opinion as we have deemed necessary. We are opining herein as to
the effect on the subject transactions of only United States Federal law, the
law of the State of New York, the General Corporation Law of the State(s) of
Delaware, Washington [and each other state of incorporation for any Loan Party].
References in this opinion letter to the "New York UCC," the "Washington UCC"
and the "Delaware UCC" mean the Uniform Commercial Code as in effect on the date
hereof in the States of New York, Washington and Delaware, respectively. With
respect to the Delaware UCC, we have reviewed the provisions of the Uniform
Commercial Code as in effect on the date hereof in the State of Delaware as set
forth in the Commerce Clearing House Inc. Secured Transaction Guide as
supplemented through __________, 2001 (the "Guide") and our opinions herein on
the Delaware UCC are based solely on such review.
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159
On the basis of the foregoing, and in reliance thereon, and
subject to the limitations, qualifications and exceptions set forth below, we
are of the opinion that:
1. Company is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation and has all
requisite corporate power and authority to own and operate its properties and to
carry on its business as now conducted. Company is duly qualified to do business
as a foreign corporation, and is in good standing, in [LIST JURISDICTIONS].
2. Each Subsidiary Guarantor is a corporation or limited
liability company duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization and has all requisite corporate or
limited liability company power and authority, as the case may be, to own and
operate its properties and to carry on its business as now conducted. Each
Subsidiary Guarantor is duly qualified to do business as a foreign corporation
or limited liability company, as the case may be, and is in good standing, in
[LIST JURISDICTIONS].
3. Company has all requisite corporate power and authority to
execute, deliver and perform the Transaction Documents to which it is a party,
to issue the Notes and to carry out the transactions contemplated thereby.
4. Each Subsidiary Guarantor has all requisite corporate or
limited liability company power and authority, as the case may be, to execute,
deliver and perform the Transaction Documents to which it is a party, and to
carry out the transactions contemplated thereby.
5. The execution, delivery and performance of the Transaction
Documents to which the Company is a party and the issuance and payment of the
Notes have been duly authorized by all necessary corporate action on the part of
Company. The Transaction Documents have been duly executed and delivered by
Company and the Loan Documents to which Company is a party constitute the
legally valid and binding obligations of Company, enforceable against Company in
accordance with their respective terms.
6. The execution, delivery and performance of the Transaction
Documents to which the Subsidiary Guarantors are a party have been duly
authorized by all necessary corporate or limited liability company action, as
the case may be, on the part of each Subsidiary Guarantor that is a party
thereto. The Transaction Documents to which the Subsidiary Guarantors are a
party have been duly executed and delivered by each Subsidiary Guarantor that is
listed on the signature pages thereof and the Loan Documents to which the
Subsidiary Guarantors are a party constitute the legally valid and binding
obligations of each such Subsidiary Guarantor, enforceable against each such
Subsidiary Guarantor in accordance with their respective terms.
7. Neither the execution and delivery of the Transaction
Documents to which they are a party by the Loan Parties nor the issuance and
payment of the Notes by the Company, nor the consummation of the transactions
contemplated thereby nor the compliance with the terms and conditions thereof by
the Loan Parties (A) conflicts with, results in a breach or violation of, or
constitutes a default under, any of the terms, conditions or provisions of (x)
the
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Organizational Documents of any Loan Party or any of their respective
Subsidiaries, (y) any term of any material agreement, instrument, order, writ,
judgment or decree (collectively, the "Material Agreements") identified to us by
an officer of the Company and set forth on Schedule B attached hereto to which
any Loan Party or any of their respective Subsidiaries is a party or by which
any of their respective properties or assets are bound, or (z) any present
federal, New York, Washington or Delaware General Corporate [or other relevant
state corporate law] statute, rule or regulation binding on any Loan Party or
any of their respective Subsidiaries, or (B) results in the creation of any Lien
upon any of the properties or assets of any Loan Party under any Material
Agreement (other than Liens created pursuant to the Collateral Documents).
8. No consents or approvals of, authorizations by, or
registrations, declarations or filings with, any federal, New York, Washington
or Delaware General Corporate [or other relevant state corporate law] Government
Authority are required by any Loan Party in connection with the execution and
delivery by the Loan Parties of the Transaction Documents to which they are a
party or the extensions of credit under the Credit Agreement or the payment by
Company of its Obligations thereunder or the issuance and payment of the Notes
or the consummation of the transactions contemplated thereby, except for the
filing of the Company Financing Statements in the Company Filing States, the
filing of the Subsidiary Financing Statements in the Subsidiary Filing States
and the filing and recordation of the IP Grants in the United States Patent and
Trademark Office and the United States Copyright Office, as applicable.
9. To the best of our knowledge after due inquiry, (i) there are
no actions, suits or proceedings pending or threatened against any Loan Party or
any of their respective Subsidiaries that have could reasonably be expected to
materially and adversely affecting either the ability of any Loan Party to
perform its obligations under any Loan Document or the financial condition or
operations of the Loan Parties taken as a whole, and (ii) there are no actions,
suits or proceedings pending against any Loan Party that seek to enjoin the
consummation of transactions contemplated by the Loan Documents.
10. Schedule A hereto sets forth the number of shares of each
class of capital stock or limited liability company interests of each Subsidiary
Guarantor that are authorized and that are issued and outstanding. Such issued
and outstanding shares or limited liability company interests have been duly
authorized by all necessary corporate or limited liability company action on the
part of the applicable Subsidiary Guarantor, as the case may be, are validly
issued, fully-paid and nonassessable, and are owned of record by the parties
identified as such owners on Schedule A.
11. The Security Agreement creates in favor of Administrative
Agent a security interest in such of the Collateral (as defined therein) of the
Loan Parties that are parties thereto that is of a type in which a security
interest can be created under Article 9 of the Uniform Commercial Code as in
effect in the State of New York (the "Code").
12. Upon the filing of the Company Financing Statements with the
Secretaries of State of the Company Filing State(s) and the Subsidiary Financing
Statements with the Secretaries of State of the Subsidiary Filing State(s),
Administrative Agent will have a perfected security interest in the Loan
Parties' interests in the Collateral described therein, to the extent a
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161
security interest in such Collateral can be perfected by the filing of financing
statements in the Company Filing States and the Subsidiary Filing States under
the New York UCC, the Washington UCC and the Delaware UCC.
13. The Security Agreement, together with the delivery of the
instruments representing the shares of stock and pledged debt identified on
Schedules 1(e)(i) and 1(e)(ii) to the Security Agreement (the "Pledged
Securities") to Administrative Agent in the State of New York or Washington,
endorsed in blank or to Administrative Agent, create in favor of Administrative
Agent a perfected security interest under the New York Code or the Washington
Code, respectively, in the Pledged Securities, free of adverse claims.
14. The Security Agreement and the Securities Agreements create
in favor of the Administrative Agent perfected security interests in the
Securities Accounts and the Securities Collateral (as defined in the Security
Agreement) carried in the Securities Accounts under the New York UCC, the
Washington UCC and the Delaware UCC, free of adverse claims.
15. Upon the due filing and recordation of the IP Grants in the
United States Patent and Trademark Office and the United States Copyright
Office, as applicable, the payment of all filing and recordation fees associated
therewith and the filing of the Company Financing Statements in the Company
Filing States and the Subsidiary Financing Statements in the Subsidiary Filing
States, the Administrative Agent will have a perfected security interest in the
Loan Parties' interests in the United States patents, United States registered
trademarks and United States registered copyrights specifically identified in
Schedule I to the IP Grants, to the extent a security interest in such
Collateral can be perfected by such filings.
16. The making of the Loans and the application of the proceeds
thereof as provided in the Credit Agreement do not violate Regulation T, U or X
of the Board of Governors of the Federal Reserve System.
17. It is not necessary in connection with the execution and
delivery of the Credit Agreement and issuance and payment of the Notes to
Lenders to register the Credit Agreement, the Notes or the Loans under the
Securities Act of 1933, as amended, or to qualify any indenture in respect
thereof under the Trust Indenture Act of 1939, as amended.
18. No Loan Party is an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
19. All Obligations under the Credit Agreement are within the
definition of "Senior Debt" as defined in, and are entitled to the benefits of
the subordination provisions contained in, the Indenture dated as of December
14, 1998, as amended to the date hereof, governing the Company's 9.00% Senior
Subordinated Notes due January 5, 2009.
20. Set forth on Schedule 5.1E annexed to the Credit Agreement
is a complete list of all of the FCC Licenses, including the authorized call
signs, communities of licenses, and expiration dates, of the Loan Parties. Each
FCC License: (i) is validly held by the Loan Party identified as the
licensee/permittee thereof on such Schedule 5.1E; (ii) is in full force and
effect; and (iii) is not subject to any conditions other than those generally or
routinely applicable to radio and television broadcast licenses for a station of
a type similar to the Stations. The FCC
IX-5
162
Licenses include all FCC licenses, permits, authorizations and waivers necessary
for the Loan Parties to operate the Stations in the ordinary course of business
on the channels assigned to Stations pursuant to their respective FCC Licenses.
To our knowledge, no FCC License, permit or authorization is held by the Loan
Parties and used in the operation of the Stations other than the FCC Licenses.
We have no reason to believe that any FCC License will not, subject to the
filing of timely license renewal applications and payment of any applicable
filing fees, be renewed in the ordinary course.
21. Based upon a review of our files and the publicly available
files of the FCC, (i) there are no judgments, decrees or orders that have been
issued by the FCC against any of the Loan Parties or FCC Licenses that could be
expected to result in a forfeiture or the suspension, termination prior to its
expiration date, revocation, material impairment, material adverse modification
or non-renewal of any FCC License or that could have a material adverse effect
upon or cause material disruption to the operations of any of the Stations, and
(ii) there is no FCC or other proceeding inquiry or other administrative action
pending or, to the best of our knowledge, threatened by or before the FCC
(including any judicial review of an order, decree or other action by the FCC)
against any of the Loan Parties, including, without limitation, any notice of
violation, notice of apparent liability, order to show cause or other order, or
investigative proceeding, that reasonably could be expected to result in a
forfeiture or the suspension, termination prior to its expiration date,
revocation, material impairment, material adverse modification or non-renewal of
any FCC License or that could have a material adverse effect upon or cause
material disruption to the operations of any of the Stations.
22. No consents, approvals, notices, authorizations,
registrations, declarations or filings by or with the FCC are required by any of
the Loan Parties under the Communications Act in connection with: (i) the
extensions of credit under the Loan Documents; (ii) the due execution, delivery
and performance of its obligations under any of the Loan Documents by any of the
Loan Parties that are party thereto; (iii) the issuance, delivery and payment of
the Notes; (iv) the pledge of and grant of a security interest in the Collateral
under and as defined in the Collateral Documents by each Loan Party thereto; or
(v) the exercise by Administrative Agent or any of the Lenders of any of their
respective rights and remedies under the Collateral Documents; except that: (A)
copies of certain of the Loan Documents must be filed with the FCC by certain of
the Loan Parties, provided that the failure to file such copies will not affect
the due execution and delivery by any Loan Party of any Loan Document to which
it is a party or adversely affect the validity and enforceability thereof under
the Communications Act; and (B) to the extent that the exercise of certain
rights of Administrative Agent and the Lenders would result in a voluntary or an
involuntary assignment or transfer of control of any FCC License, such transfer
or assignment will require the prior consent of the FCC.
23. None of: (i) the execution, delivery and performance of each
Loan Document; (ii) the issuance, delivery and payment of the Notes; and (iii)
compliance with the terms and conditions thereof by each Loan Party thereto, (A)
violates or conflicts with or will violate or conflict with any provision of the
Communications Act, or (B) results in, or will result in, a forfeiture or the
suspension, termination prior to its expiration date, revocation, material
impairment, material adverse modification or non-renewal of any FCC License.
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163
24. We call to your attention the fact that the Loan Documents
select the internal laws of the State of New York as the governing law, except
with respect to the Collateral Documents where the laws of another jurisdiction
may govern perfection and the effect of perfection or non-perfection. It is our
opinion that a federal or state court sitting in the State of New York or in the
State of Washington will honor the parties' choice of the internal laws of the
State of New York as the law applicable to the Loan Documents (to the extent set
forth in such Loan Documents) and to the determination of whether the
obligations created by the Loan Documents are usurious.
[STANDARD QUALIFICATIONS AND ASSUMPTIONS TO COME FROM COMPANY
COUNSEL]
This opinion is rendered only to Administrative Agent and
Lenders and is solely for their benefit in connection with the above
transactions. This opinion may not be relied upon by Administrative Agent or any
Lender for any other purpose, or quoted to or relied upon by any other person,
firm or corporation for any purpose without our prior written consent. You may,
however, deliver copies of this opinion to your accountants, attorneys and other
professional advisors, to regulatory agencies having jurisdiction over you and
to permitted transferees of the Loans or Notes; and any such transferees may
rely on this opinion as if it were addressed and had been delivered to them on
the date of this opinion.
Very truly yours,
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164
SCHEDULE A
AUTHORIZED CAPITAL STOCK
GUARANTOR AUTHORIZED ISSUED AND OUTSTANDING RECORD OWNER
--------- ---------- ---------------------- ------------
Schedule A
165
SCHEDULE B
SCHEDULE OF MATERIAL AGREEMENTS
Schedule B
166
EXHIBIT X
FORM OF OPINION OF O'MELVENY & ▇▇▇▇▇ LLP
September __, 2001
Credit Suisse First Boston
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and
The Lenders Party to the Credit
Agreement referenced below
Re: Loans to The ▇▇▇▇▇▇▇▇ Group, Inc.
Ladies and Gentlemen:
We have acted as counsel to Credit Suisse First Boston, as
Administrative Agent (in such capacity, "Administrative Agent"), in connection
with the preparation and delivery of a Credit Agreement dated as of September
__, 2001 (the "Credit Agreement") among The ▇▇▇▇▇▇▇▇ Group, Inc., a Delaware
corporation ("Company"), the financial institutions listed therein as lenders,
and Administrative Agent and in connection with the preparation and delivery of
certain related documents.
We have participated in various conferences with representatives
of Company and Administrative Agent and conferences and telephone calls with
▇▇▇▇▇▇ & ▇▇▇▇, PC and ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Coke L.L.P., counsel to
Company, and with your representatives, during which the Credit Agreement and
related matters have been discussed, and we have also participated in the
meeting held on the date hereof (the "Closing") incident to the funding of the
initial loans made under the Credit Agreement. We have reviewed the forms of the
Credit Agreement and the exhibits thereto, including the forms of the promissory
notes annexed thereto (the "Notes"), and the opinions of ▇▇▇▇▇▇ & ▇▇▇▇, PC and
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Coke L.L.P., (collectively, the "Opinions")
and the officer's certificates and other documents delivered at the Closing. We
have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals or copies and the due authority of all
persons executing the same, and we have relied as to factual matters on the
documents that we have reviewed.
Although we have not independently considered all of the matters
covered by the Opinions to the extent necessary to enable us to express the
conclusions therein stated, we
X-1
167
believe that the Credit Agreement and the exhibits thereto are in substantially
acceptable legal form and that the Opinions and the officer's certificates and
other documents delivered in connection with the execution and delivery of, and
as conditions to the making of the initial loans under, the Credit Agreement and
the Notes are substantially responsive to the requirements of the Credit
Agreement.
Respectfully submitted,
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168
EXHIBIT XI
FORM OF ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT
This ASSIGNMENT AGREEMENT (this "AGREEMENT") is entered into by
and between the parties designated as Assignor ("ASSIGNOR") and Assignee
("ASSIGNEE") above the signatures of such parties on the Schedule of Terms
attached hereto and hereby made an integral part hereof (the "SCHEDULE OF
TERMS") and relates to that certain Credit Agreement described in the Schedule
of Terms (said Credit Agreement, as amended, supplemented, restated or otherwise
modified to the date hereof and as it may hereafter be amended, supplemented,
restated or otherwise modified from time to time, being the "CREDIT AGREEMENT",
the terms defined therein and not otherwise defined herein being used herein as
therein defined).
IN CONSIDERATION of the agreements, provisions and covenants
herein contained, the parties hereto hereby agree as follows:
SECTION 1. ASSIGNMENT AND ASSUMPTION.
(a) Effective upon the Settlement Date specified in Item 4 of
the Schedule of Terms (the "SETTLEMENT DATE"), Assignor hereby sells and assigns
to Assignee, for an agreed consideration, without recourse, representation or
warranty (except as expressly set forth herein), and Assignee hereby purchases
and assumes from Assignor, that percentage interest in all of Assignor's rights
and obligations as a Lender arising under the Credit Agreement and the other
Loan Documents with respect to Assignor's Commitments and/or outstanding Loans,
if any, which represents, as of the Settlement Date, the percentage interest
specified in Item 3 of the Schedule of Terms of all rights and obligations of
Lenders arising under the Credit Agreement and the other Loan Documents with
respect to the Commitments and any outstanding Loans (the "ASSIGNED SHARE").
Without limiting the generality of the foregoing, the parties hereto hereby
expressly acknowledge and agree that any assignment of all or any portion of
Assignor's rights and obligations relating to Assignor's Revolving Loan
Commitment, Revolving Loans or Letter of Credit participations shall be made
only as an assignment of the same proportionate part of the Assignor's Revolving
Loan Commitment, Revolving Loans and Letter of Credit participations.
(b) Payment of the consideration for the assignment described
above by Assignee shall be made by wire transfer of immediately available funds
in accordance with the applicable payment instructions set forth in Item 5 of
the Schedule of Terms.
(c) Assignor and Assignee hereby agree that, upon giving effect
to the assignment and assumption described above, (i) Assignee shall be a party
to the Credit Agreement and shall have all of the rights and obligations under
the Loan Documents, and shall be deemed to have made all of the covenants and
agreements contained in the Loan Documents, arising out of or otherwise related
to the Assigned Share, and (ii) Assignor shall be absolutely released from any
of such obligations, covenants and agreements assumed or made by Assignee in
respect of the Assigned Share. Assignee hereby acknowledges and agrees that the
agreement set forth in this Section 1(c) is expressly made for the benefit of
Company, Administrative Agent, Assignor and the other Lenders and their
respective successors and permitted assigns.
▇▇-▇
▇▇▇
(▇) Assignor and Assignee hereby acknowledge and confirm their
understanding and intent that (i) this Agreement shall effect the assignment by
Assignor and the assumption by Assignee of Assignor's rights and obligations
with respect to the Assigned Share, (ii) any other assignments by Assignor of a
portion of its rights and obligations with respect to the Commitments and any
outstanding Loans shall have no effect on the Commitments, the outstanding Term
Loans and the Pro Rata Share corresponding to the Assigned Share as set forth in
Item 3 of the Schedule of Terms or on the interest of Assignee in any
outstanding Revolving Loans corresponding thereto, and (iii) from and after the
Settlement Date, Administrative Agent shall make all payments under the Credit
Agreement in respect of the Assigned Share (including all payments of principal
and accrued but unpaid interest, commitment fees and letter of credit fees with
respect thereto) (A) in the case of any such interest and fees that shall have
accrued prior to the Settlement Date, to Assignor, and (B) in all other cases,
to Assignee; provided that Assignor and Assignee shall make payments directly to
each other to the extent necessary to effect any appropriate adjustments in any
amounts distributed to Assignor and/or Assignee by Administrative Agent under
the Loan Documents in respect of the Assigned Share in the event that, for any
reason whatsoever, the payment of consideration contemplated by Section 1(b)
occurs on a date other than the Settlement Date.
SECTION 2. CERTAIN REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
(a) Assignor represents and warrants that it is the legal and
beneficial owner of the Assigned Share, free and clear of any adverse claim and
that Item 3 of the Schedule of Terms correctly sets forth the amount of the
Commitments, the outstanding Term Loans and the Pro Rata Share corresponding to
the Assigned Share.
(b) Assignor shall not be responsible to Assignee for the
execution, effectiveness, genuineness, validity, enforceability, collectibility
or sufficiency of any of the Loan Documents or for any representations,
warranties, recitals or statements made therein or made in any written or oral
statements or in any financial or other statements, instruments, reports or
certificates or any other documents furnished or made by Assignor to Assignee or
by or on behalf of Company or any of its Subsidiaries to Assignor or Assignee in
connection with the Loan Documents and the transactions contemplated thereby or
for the financial condition or business affairs of Company or any other Person
liable for the payment of any Obligations, nor shall Assignor be required to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in any of the Loan
Documents or as to the use of the proceeds of the Loans or the use of the
Letters of Credit or as to the existence or possible existence of any Event of
Default or Potential Event of Default.
(c) Assignee represents and warrants that it is an Eligible
Assignee; that it has experience and expertise in the making of loans such as
the Loans; that it has acquired the Assigned Share for its own account in the
ordinary course of its business and without a view to distribution of the Loans
within the meaning of the Securities Act or the Exchange Act or other federal
securities laws (it being understood that, subject to the provisions of
subsection 10.1 of the Credit Agreement, the disposition of the Assigned Share
or any interests therein shall at all times remain within its exclusive
control); and that it has received, reviewed and approved a copy of the Credit
Agreement (including all Exhibits and Schedules thereto).
▇▇-▇
▇▇▇
(▇) Assignee represents and warrants that it has received from
Assignor such financial information regarding Company and its Subsidiaries as is
available to Assignor and as Assignee has requested, that it has made its own
independent investigation of the financial condition and affairs of Company and
its Subsidiaries in connection with the assignment evidenced by this Agreement,
and that it has made and shall continue to make its own appraisal of the
creditworthiness of Company and its Subsidiaries. Assignor shall have no duty or
responsibility, either initially or on a continuing basis, to make any such
investigation or any such appraisal on behalf of Assignee or to provide Assignee
with any other credit or other information with respect thereto, whether coming
into its possession before the making of the initial Loans or at any time or
times thereafter, and Assignor shall not have any responsibility with respect to
the accuracy of or the completeness of any information provided to Assignee.
(e) Each party to this Agreement represents and warrants to the
other party hereto that it has full power and authority to enter into this
Agreement and to perform its obligations hereunder in accordance with the
provisions hereof, that this Agreement has been duly authorized, executed and
delivered by such party and that this Agreement constitutes a legal, valid and
binding obligation of such party, enforceable against such party in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of equity.
SECTION 3. MISCELLANEOUS.
(a) Each of Assignor and Assignee hereby agrees from time to
time, upon request of the other such party hereto, to take such additional
actions and to execute and deliver such additional documents and instruments as
such other party may reasonably request to effect the transactions contemplated
by, and to carry out the intent of, this Agreement.
(b) Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated, except by an instrument in writing signed by
the party (including, if applicable, any party required to evidence its consent
to or acceptance of this Agreement) against whom enforcement of such change,
waiver, discharge or termination is sought.
(c) Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be given as
set forth in subsection 10.8 of the Credit Agreement. The notice address of
Assignee set forth on the Schedule of Terms shall serve as the initial notice
address of Assignee for purposes of subsection 10.8 of the Credit Agreement.
(d) In case any provision in or obligation under this Agreement
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
(e) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
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NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE
OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
(f) This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and assigns.
(g) This Agreement may be executed in one or more counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
(h) This Agreement shall become effective upon the date (the
"Effective Date") upon which all of the following conditions are satisfied: (i)
the execution of a counterpart hereof by each of Assignor and Assignee and
delivery thereof to Administrative Agent, (ii) the execution of a counterpart
hereof by Company and Administrative Agent as evidence of their consent hereto
to the extent required under subsection 10.1B(i) of the Credit Agreement, (iii)
the receipt by Administrative Agent of any required processing and recordation
fee referred to in subsection 10.1B(i) of the Credit Agreement, (iv) in the
event Assignee is a Non-US Lender, the delivery by Assignee to Administrative
Agent of such forms, certificates or other evidence with respect to United
States federal income tax withholding matters as Assignee may be required to
deliver to Administrative Agent pursuant to subsection 2.7B(iii) of the Credit
Agreement, and (v) the execution of a counterpart hereof by Administrative Agent
as evidence of its acceptance hereof in accordance with subsection 10.1B(ii) of
the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized, such execution being made as of the Effective Date.
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SCHEDULE OF TERMS
1. Borrower: The ▇▇▇▇▇▇▇▇ Group, Inc.
2. Name and Date of Credit Agreement: Credit Agreement dated as of
September __, 2001 by and among The ▇▇▇▇▇▇▇▇ Group, Inc., the financial
institutions listed therein as Lenders, Credit Suisse First Boston, as
Administrative Agent, and the other agents party thereto.
3. Amounts:
Re: Term Re:
Loans Revolving Loans
----------------- -----------------
(a) Aggregate Term Loans/Commitments of all
Lenders: $ $
---------------- ----------------
(b) Assigned Share/Pro Rata Share: % %
(c) Amount of Assigned Share of Commitments: N/A $
----------------
(d) Amount of Assigned Share of Term Loans: $ $
---------------- ----------------
4. Settlement Date: ____________, 20__
5. Payment Instructions:
ASSIGNOR: ASSIGNEE:
-------------------------- ----------------------------
-------------------------- ----------------------------
-------------------------- ----------------------------
-------------------------- ----------------------------
Attention: Attention:
---------------- ------------------
Reference: Reference:
---------------- ------------------
6. Notice Addresses:
ASSIGNOR: ASSIGNEE:
-------------------------- ----------------------------
-------------------------- ----------------------------
-------------------------- ----------------------------
-------------------------- ----------------------------
Attention: Attention:
---------------- ------------------
Reference: Reference:
---------------- ------------------
7. Signatures:
[NAME OF ASSIGNOR], [NAME OF ASSIGNEE],
as Assignor as Assignee
By: By:
----------------------- -------------------------
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Title: Title:
-------------------- ----------------------
Consented to, if required under Consented to and accepted
Credit Agreement
THE ▇▇▇▇▇▇▇▇ GROUP, INC. CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
By: By:
----------------------- -------------------------
Title: Title:
-------------------- ----------------------
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EXHIBIT XII
FORM OF SOLVENCY CERTIFICATE
SOLVENCY CERTIFICATE
This SOLVENCY CERTIFICATE (this "CERTIFICATE") is delivered in
connection with that certain Credit Agreement dated as of September __, 2001
(the "CREDIT AGREEMENT") by and among The ▇▇▇▇▇▇▇▇ Group, Inc., a Delaware
corporation ("COMPANY"), the financial institutions referred to therein as
Lenders ("LENDERS") and Credit Suisse First Boston, as Administrative Agent
("ADMINISTRATIVE AGENT"). Capitalized terms used herein without definition have
the same meanings as in the Credit Agreement.
A. I am, and at all pertinent times mentioned herein have been,
the duly qualified and acting chief financial officer of Company. In such
capacity I am a senior financial officer of Company and I have participated
actively in the management of its financial affairs and am familiar with its
financial statements and those of its Subsidiaries. I have, together with other
officers of Company, acted on behalf of Company in connection with the
negotiation of the Credit Agreement and I am familiar with the terms and
conditions thereof.
B. I have carefully reviewed the contents of this Certificate,
and I have conferred with counsel for Company for the purpose of discussing the
meaning of its contents.
C. In connection with preparing for the consummation of the
transactions and financings contemplated by the Credit Agreement (the "PROPOSED
TRANSACTIONS"), I have participated in the preparation of, and I have reviewed,
pro forma projections of net income and cash flows for Company and its
Subsidiaries on a consolidated basis for the fiscal years of Company ending
December 31, 2001 through December 31, 2005, inclusive (the "PROJECTED FINANCIAL
STATEMENTS"). The Projected Financial Statements, attached hereto as Exhibit A,
give effect to the consummation of the Proposed Transactions and assume that the
debt obligations of Company will be paid from the cash flow generated by the
operations of Company and its Subsidiaries and other cash resources that will
become available to Company and its Subsidiaries during such fiscal years. The
Projected Financial Statements were prepared on the basis of information
available at __________, 2001. I know of no facts that have occurred since such
date that would lead me to believe that the Projected Financial Statements are
inaccurate in any material respect. The Projected Financial Statements do not
reflect (i) any potential changes in interest rates from those assumed in the
Projected Financial Statements, (ii) any potential material, adverse changes in
general business conditions, or (iii) any potential changes in income tax laws.
D. I have also participated in the preparation of, and I have
reviewed, a pro forma summary balance sheet of Company and its Subsidiaries on a
consolidated basis (the "FAIR VALUE SUMMARY BALANCE SHEET") as of September __,
2001, the expected Closing Date, giving effect to the Proposed Transactions. The
Fair Value Summary Balance Sheet is attached hereto as Exhibit B and has been
prepared as described in paragraphs F and G below and not in accordance with
GAAP.
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E. In connection with the preparation of the Projected Financial
Statements, I have made such investigations and inquiries as I have deemed
necessary and prudent therefor and, specifically, have relied on historical
information with respect to revenues, expenses and other relevant items supplied
by the supervisory personnel of Company and its Subsidiaries directly
responsible for the various operations involved. The assumptions upon which the
Projected Financial Statements are based are stated therein. Although any
assumptions and any projections by necessity involve uncertainties and
approximations, I believe, based on my discussions with other members of
management, that the assumptions on which the Projected Financial Statements are
based are reasonable. Based thereon, I believe that the projections for Company
and its Subsidiaries, taken as a whole, reflected in the Projected Financial
Statements provide reasonable estimations of future performance, subject, as
stated above, to the uncertainties and approximations inherent in any
projections.
F. The Fair Value Summary Balance Sheet has been prepared in a
manner which I believe reflects a conservative estimate of the fair value of the
assets of Company and its Subsidiaries on a consolidated basis and the probable
liability on all of their debts, contingent or otherwise. For purposes of this
Certificate, I understand "fair value" of any assets to mean the amount which
may be realized within a reasonable time, either through collection of such
assets or through sale of such assets at the regular market value thereof,
conceiving of the latter as the amount which could be obtained for the property
in question within such period by a capable and diligent businessman from an
interested buyer who is willing to purchase under ordinary selling conditions.
The specific methodology used by management for valuing Company and its
Subsidiaries is set forth in paragraph G below.
G. For purposes of constructing the Fair Value Summary Balance
Sheet, I have utilized the following procedures:
With respect to the asset values reflected in the Fair Value
Summary Balance Sheet. I have included the net working capital of Company and
its Subsidiaries, calculated as the difference between the current assets and
current liabilities reported in their ___________, ____ financial statements,
and I have relied on the capitalization of earnings methodology -- whereby
earnings before interest and taxes (EBIT) are capitalized at a specified EBIT
multiple -- to arrive at the estimated fair value of the long-term assets of
Company and its Subsidiaries. For these purposes I have utilized an EBIT
multiplier of ____, which reflects a conservative estimate of the EBIT
multiplier reflected in acquisition prices paid for total ownership positions in
companies whose lines of business are similar to those of Company and its
Subsidiaries.
With respect to liabilities reflected in the Fair Value Summary
Balance Sheet, I have included long-term liabilities reported by Company and its
Subsidiaries in their __________, ____ financial statements and debts to be
incurred or assumed by Company and its Subsidiaries under the Credit Agreement
and the Proposed Transactions. In addition, with respect to contingent
liabilities (such as litigation, guaranties and pension plan liabilities), I
have consulted with legal, financial and other personnel of Company and its
Subsidiaries and have reflected as liabilities our best judgment as to the
maximum exposure that can reasonably be expected to result therefrom in light of
all the facts and circumstances existing at this time, recognizing that any such
estimation is inherently subject to uncertainties.
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Based on the foregoing, I have reached the following
conclusions:
1. Company is not now, nor will the incurrence of the
Obligations under the Credit Agreement and the incurrence of the other
obligations contemplated by the Proposed Transactions render Company "insolvent"
as defined in this paragraph 1. The recipients of this Certificate and I have
agreed that, in this context, "insolvent" means that the present fair value of
assets is less than the amount that will be required to pay the probable
liability on existing debts as they become absolute and matured. We have also
agreed that the term "debts" includes any legal liability, whether matured or
unmatured, liquidated or unliquidated, absolute, fixed or contingent. My
conclusion expressed above is supported by the Fair Value Summary Balance Sheet.
Valuation of Company on the basis thereof would reflect the net value of Company
as $__________ representing the difference between asset values of $__________
and liabilities of $__________.
2. By the incurrence of the Obligations under the Credit
Agreement and the incurrence of the other obligations contemplated by the
Proposed Transactions, Company will not incur debts beyond its ability to pay as
such debts mature. I have based my conclusion in part on the Projected Financial
Statements, which demonstrate that Company will have positive cash flow (or
ability to borrower or refinance) after paying all of its scheduled anticipated
indebtedness (including scheduled payments under the Credit Agreement, the other
obligations contemplated by the Proposed Transactions and other permitted
Indebtedness). I have concluded that the realization of current assets in the
ordinary course of business will be sufficient to pay recurring current debt and
short-term and long-term debt service as such debts mature, and that the cash
flow (including earnings plus non-cash charges to earnings and the disposition
of surplus assets) will be sufficient to provide cash necessary to repay the
Loans and other Obligations under the Credit Agreement, the other obligations
contemplated by the Proposed Transactions and other long-term indebtedness as
such debt matures.
3. The incurrence of the Obligations under the Credit Agreement
and the incurrence of the other obligations contemplated by the Proposed
Transactions will not leave Company with property remaining in its hands
constituting "unreasonably small capital." In reaching this conclusion, I
understand that "unreasonably small capital" depends upon the nature of the
particular business or businesses conducted or to be conducted, and I have
reached my conclusion based on the needs and anticipated needs for capital of
the businesses conducted or anticipated to be conducted by Company and its
Subsidiaries in light of the Projected Financial Statements and available credit
capacity.
4. To the best of my knowledge, Company has not executed the
Credit Agreement or any documents mentioned therein, or made any transfer or
incurred any obligations thereunder, with actual intent to hinder, delay or
defraud either present or future creditors.
I understand that Administrative Agent and Lenders are relying
on the truth and accuracy of the foregoing in connection with the extension of
credit to Company pursuant to the Credit Agreement.
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I represent the foregoing information to be, to the best of my
knowledge and belief, true and correct and execute this Certificate this _____
day of August, 2001.
THE ▇▇▇▇▇▇▇▇ GROUP, INC.,
Name:
--------------------------
Title: Chief Financial Officer
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EXHIBIT XIII
FORM OF SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY is entered into as of September __,
2001 by the undersigned (each a "GUARANTOR", and together with any future
Subsidiaries executing this Guaranty, being collectively referred to herein as
the "GUARANTORS") in favor of and for the benefit of Credit Suisse First Boston,
as agent for and representative of (in such capacity herein called "GUARANTIED
PARTY") the financial institutions ("LENDERS") party to the Credit Agreement
referred to below and any Hedge Providers (as hereinafter defined), and for the
benefit of the other Beneficiaries (as hereinafter defined).
RECITALS
A. The ▇▇▇▇▇▇▇▇ Group, Inc., a Delaware corporation ("COMPANY"),
has entered into that certain Credit Agreement dated as of September __, 2001
with Lenders and Guarantied Party, as Administrative Agent for Lenders (said
Credit Agreement, as it may hereafter be amended, supplemented, restated or
otherwise modified from time to time, being the "CREDIT AGREEMENT"; capitalized
terms defined therein and not otherwise defined herein being used herein as
therein defined).
B. Company may from time to time enter, or may from time to time
have entered, into one or more Hedge Agreements (collectively, the "LENDER HEDGE
AGREEMENTS") with one or more Persons that are Lenders or Affiliates of Lenders
at the time such Hedge Agreements are entered into (in such capacity,
collectively, "HEDGE PROVIDERS") in accordance with the terms of the Credit
Agreement, and it is desired that the obligations of Company under the Lender
Hedge Agreements, including without limitation the obligation of Company to make
payments thereunder in the event of early termination thereof, together with all
obligations of Company under the Credit Agreement and the other Loan Documents,
be guarantied hereunder.
C. Guarantied Party, Lenders and each Hedge Provider for which
Guarantied Party has received the notice required by Section 18 hereof are
sometimes referred to herein as "BENEFICIARIES".
D. A portion of the proceeds of the Loans may be advanced to
other Guarantors that are Subsidiaries of Company, and thus the Guarantied
Obligations (as hereinafter defined) are being incurred for and will inure to
the benefit of Guarantors (which benefits are hereby acknowledged).
E. It is a condition precedent to the making of the initial
Loans under the Credit Agreement that Company's obligations thereunder be
guarantied by Guarantors.
F. Guarantors are willing irrevocably and unconditionally to
guaranty such obligations of Company.
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NOW, THEREFORE, based upon the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in order to induce Lenders and Guarantied Party to enter into
the Credit Agreement and to make Loans and other extensions of credit thereunder
and to induce Hedge Providers to enter into the Lender Hedge Agreements,
Guarantors hereby agree as follows:
1. GUARANTY. (a) In order to induce Lenders to extend credit to
Company pursuant to the Credit Agreement and the entry by Hedge Providers into
the Lender Hedge Agreements, Guarantors jointly and severally irrevocably and
unconditionally guaranty, as primary obligors and not merely as sureties, the
due and punctual payment in full of all Guarantied Obligations (as hereinafter
defined) when the same shall become due, whether at stated maturity, by
acceleration, demand or otherwise (including amounts that would become due but
for the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code, 11 U.S.C. Section 362(a)). The term "GUARANTIED OBLIGATIONS" is used
herein in its most comprehensive sense and includes any and all Obligations of
Company and all obligations of Company under Lender Hedge Agreements, now or
hereafter made, incurred or created, whether absolute or contingent, liquidated
or unliquidated, whether due or not due, and however arising under or in
connection with the Credit Agreement, the Lender Hedge Agreements, this Guaranty
and the other Loan Documents, including those arising under successive borrowing
transactions under the Credit Agreement which shall either continue such
obligations of Company or from time to time renew them after they have been
satisfied.
Each Guarantor acknowledges that a portion of the Loans may be
advanced to it, that Letters of Credit may be issued for the benefit of its
business and that the Guarantied Obligations are being incurred for and will
inure to its benefit.
Any interest on any portion of the Guarantied Obligations that
accrues after the commencement of any proceeding, voluntary or involuntary,
involving the bankruptcy, insolvency, receivership, reorganization, liquidation
or arrangement of Company (or, if interest on any portion of the Guarantied
Obligations ceases to accrue by operation of law by reason of the commencement
of said proceeding, such interest as would have accrued on such portion of the
Guarantied Obligations if said proceeding had not been commenced) shall be
included in the Guarantied Obligations because it is the intention of each
Guarantor and Guarantied Party that the Guarantied Obligations should be
determined without regard to any rule of law or order that may relieve Company
of any portion of such Guarantied Obligations.
In the event that all or any portion of the Guarantied
Obligations is paid by Company, the obligations of each Guarantor hereunder
shall continue and remain in full force and effect or be reinstated, as the case
may be, in the event that all or any part of such payment(s) is rescinded or
recovered directly or indirectly from Guarantied Party or any other Beneficiary
as a preference, fraudulent transfer or otherwise, and any such payments that
are so rescinded or recovered shall constitute Guarantied Obligations.
Subject to the other provisions of this Section 1, upon the
failure of Company to pay any of the Guarantied Obligations when and as the same
shall become due, each Guarantor will upon demand pay, or cause to be paid, in
cash, to Guarantied Party for the ratable benefit of Beneficiaries, an amount
equal to the aggregate of the unpaid Guarantied Obligations.
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(b) Anything contained in this Guaranty to the contrary
notwithstanding, the obligations of each Guarantor under this Guaranty and the
other Loan Documents shall be limited to a maximum aggregate amount equal to the
largest amount that would not render its obligations hereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11
of the United States Code or any applicable provisions of comparable state law
(collectively, the "FRAUDULENT TRANSFER LAWS"), in each case after giving effect
to all other liabilities of such Guarantor, contingent or otherwise, that are
relevant under the Fraudulent Transfer Laws (specifically excluding, however,
any liabilities of such Guarantor (x) in respect of intercompany indebtedness to
Company or other affiliates of Company to the extent that such indebtedness
would be discharged in an amount equal to the amount paid by such Guarantor
hereunder and (y) under any guaranty of Subordinated Indebtedness which guaranty
contains a limitation as to maximum amount similar to that set forth in this
Section 1(b), pursuant to which the liability of such Guarantor hereunder is
included in the liabilities taken into account in determining such maximum
amount) and after giving effect as assets to the value (as determined under the
applicable provisions of the Fraudulent Transfer Laws) of any rights to
subrogation, reimbursement, indemnification or contribution of such Guarantor
pursuant to applicable law or pursuant to the terms of any agreement
(c) Each Guarantor under this Guaranty, and each guarantor under
other guaranties, if any, relating to the Credit Agreement (the "RELATED
GUARANTIES") that contain a contribution provision similar to that set forth in
this Section 1(c), together desire to allocate among themselves (collectively,
the "CONTRIBUTING GUARANTORS"), in a fair and equitable manner, their
obligations arising under this Guaranty and the Related Guaranties. Accordingly,
in the event any payment or distribution is made on any date by a Guarantor
under this Guaranty or a guarantor under a Related Guaranty, each such Guarantor
or such other guarantor shall be entitled to a contribution from each of the
other Contributing Guarantors in the maximum amount permitted by law so as to
maximize the aggregate amount of the Guarantied Obligations paid to
Beneficiaries.
2. GUARANTY ABSOLUTE; CONTINUING GUARANTY. The obligations of
each Guarantor hereunder are irrevocable, absolute, independent and
unconditional and shall not be affected by any circumstance which constitutes a
legal or equitable discharge of a guarantor or surety other than payment in full
of the Guarantied Obligations. In furtherance of the foregoing and without
limiting the generality thereof, each Guarantor agrees that: (a) this Guaranty
is a guaranty of payment when due and not of collectibility; (b) Guarantied
Party may enforce this Guaranty upon the occurrence of an Event of Default under
the Credit Agreement or the occurrence of an early termination date or similar
event under any Lender Hedge Agreements notwithstanding the existence of any
dispute between Company and any Beneficiary with respect to the existence of
such event; (c) the obligations of each Guarantor hereunder are independent of
the obligations of Company under the Loan Documents or the Lender Hedge
Agreements and the obligations of any other Guarantor and a separate action or
actions may be brought and prosecuted against each Guarantor whether or not any
action is brought against Company or any of such other Guarantors and whether or
not Company is joined in any such action or actions; and (d) a payment of a
portion, but not all, of the Guarantied Obligations by one or more Guarantors
shall in no way limit, affect, modify or abridge the liability of such or any
other Guarantor for any portion of the Guarantied Obligations that has not been
paid. This Guaranty is a continuing guaranty and shall be binding upon each
Guarantor and its successors and assigns,
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and each Guarantor irrevocably waives any right to revoke this Guaranty as to
future transactions giving rise to any Guarantied Obligations.
3. ACTIONS BY BENEFICIARIES. Any Beneficiary may from time to
time, without notice or demand and without affecting the validity or
enforceability of this Guaranty or giving rise to any limitation, impairment or
discharge of any Guarantor's liability hereunder, (a) renew, extend, accelerate
or otherwise change the time, place, manner or terms of payment of the
Guarantied Obligations, (b) settle, compromise, release or discharge, or accept
or refuse any offer of performance with respect to, or substitutions for, the
Guarantied Obligations or any agreement relating thereto and/or subordinate the
payment of the same to the payment of any other obligations, (c) request and
accept other guaranties of the Guarantied Obligations and take and hold security
for the payment of this Guaranty or the Guarantied Obligations, (d) release,
exchange, compromise, subordinate or modify, with or without consideration, any
security for payment of the Guarantied Obligations, any other guaranties of the
Guarantied Obligations, or any other obligation of any Person with respect to
the Guarantied Obligations, (e) enforce and apply any security now or hereafter
held by or for the benefit of any Beneficiary in respect of this Guaranty or the
Guarantied Obligations and direct the order or manner of sale thereof, or
exercise any other right or remedy that Guarantied Party or the other
Beneficiaries, or any of them, may have against any such security, as Guarantied
Party in its discretion may determine consistent with the Credit Agreement, the
Lender Hedge Agreements and any applicable security agreement, including
foreclosure on any such security pursuant to one or more judicial or nonjudicial
sales, whether or not every aspect of any such sale is commercially reasonable,
and (f) exercise any other rights available to Guarantied Party or the other
Beneficiaries, or any of them, under the Loan Documents or the Lender Hedge
Agreements.
4. NO DISCHARGE. This Guaranty and the obligations of Guarantors
hereunder shall be valid and enforceable and shall not be subject to any
limitation, impairment or discharge for any reason (other than payment in full
of the Guarantied Obligations), including without limitation the occurrence of
any of the following, whether or not any Guarantor shall have had notice or
knowledge of any of them: (a) any failure to assert or enforce or agreement not
to assert or enforce, or the stay or enjoining, by order of court, by operation
of law or otherwise, of the exercise or enforcement of, any claim or demand or
any right, power or remedy with respect to the Guarantied Obligations or any
agreement relating thereto, or with respect to any other guaranty of or security
for the payment of the Guarantied Obligations, (b) any waiver or modification
of, or any consent to departure from, any of the terms or provisions of the
Credit Agreement, any of the other Loan Documents, the Lender Hedge Agreements
or any agreement or instrument executed pursuant thereto, or of any other
guaranty or security for the Guarantied Obligations, (c) the Guarantied
Obligations, or any agreement relating thereto, at any time being found to be
illegal, invalid or unenforceable in any respect, (d) the application of
payments received from any source to the payment of indebtedness other than the
Guarantied Obligations, even though Guarantied Party or the other Beneficiaries,
or any of them, might have elected to apply such payment to any part or all of
the Guarantied Obligations, (e) any failure to perfect or continue perfection of
a security interest in any collateral which secures any of the Guarantied
Obligations, (f) any defenses, set-offs or counterclaims which Company may
assert against Guarantied Party or any Beneficiary in respect of the Guarantied
Obligations, including but not limited to failure of consideration, breach of
warranty, payment, statute of frauds, statute of limitations, accord and
satisfaction and usury, and (g) any other act or thing or omission, or delay
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to do any other act or thing, which may or might in any manner or to any extent
vary the risk of a Guarantor as an obligor in respect of the Guarantied
Obligations.
5. WAIVERS. Each Guarantor waives, for the benefit of
Beneficiaries: (a) any right to require Guarantied Party or the other
Beneficiaries, as a condition of payment or performance by such Guarantor, to
(i) proceed against Company, any other guarantor (including any other Guarantor)
of the Guarantied Obligations or any other Person, (ii) proceed against or
exhaust any security held from Company, any other guarantor of the Guarantied
Obligations or any other Person, (iii) proceed against or have resort to any
balance of any deposit account or credit on the books of any Beneficiary in
favor of Company or any other Person, or (iv) pursue any other remedy in the
power of any Beneficiary; (b) any defense arising by reason of the incapacity,
lack of authority or any disability or other defense of Company including,
without limitation, any defense based on or arising out of the lack of validity
or the unenforceability of the Guarantied Obligations or any agreement or
instrument relating thereto or by reason of the cessation of the liability of
Company from any cause other than payment in full of the Guarantied Obligations;
(c) any defense based upon any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other respects
more burdensome than that of the principal; (d) any defense based upon
Guarantied Party's or any other Beneficiary's errors or omissions in the
administration of the Guarantied Obligations, except behavior that amounts to
bad faith; (e) (i) any principles or provisions of law, statutory or otherwise,
that are or might be in conflict with the terms of this Guaranty and any legal
or equitable discharge of such Guarantor's obligations hereunder, (ii) the
benefit of any statute of limitations affecting such Guarantor's liability
hereunder or the enforcement hereof, (iii) any rights to set-offs, recoupments
and counterclaims, and (iv) promptness, diligence and any requirement that any
Beneficiary protect, secure, perfect or insure any Lien or any property subject
thereto; (f) notices, demands, presentments, protests, notices of protest,
notices of dishonor and notices of any action or inaction, including acceptance
of this Guaranty, notices of default under the Credit Agreement, notices of
default or early termination under any Lender Hedge Agreement or any agreement
or instrument related thereto, notices of any renewal, extension or modification
of the Guarantied Obligations or any agreement related thereto, notices of any
extension of credit to Company and notices of any of the matters referred to in
Section 3 and 4 hereof and any right to consent to any thereof; and (g) to the
fullest extent permitted by law, any defenses or benefits that may be derived
from or afforded by law which limit the liability of or exonerate guarantors or
sureties, or which may conflict with the terms of this Guaranty.
6. GUARANTORS' RIGHTS OF SUBROGATION, CONTRIBUTION, ETC.;
SUBORDINATION OF OTHER OBLIGATIONS. Each Guarantor waives any claim, right or
remedy, direct or indirect, that such Guarantor now has or may hereafter have
against Company or any of its assets in connection with this Guaranty or the
performance by such Guarantor of its obligations hereunder, in each case whether
such claim, right or remedy arises in equity, under contract, by statute, under
common law or otherwise and including without limitation (a) any right of
subrogation, reimbursement or indemnification that such Guarantor now has or may
hereafter have against Company, (b) any right to enforce, or to participate in,
any claim, right or remedy that any Beneficiary now has or may hereafter have
against Company, and (c) any benefit of, and any right to participate in, any
collateral or security now or hereafter held by any Beneficiary. In addition,
until the Guarantied Obligations shall have been paid in full and the
Commitments and
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Lender Hedge Agreements shall have terminated and all Letters of Credit shall
have expired or been cancelled, each Guarantor shall withhold exercise of any
right of contribution such Guarantor may have against any other guarantor of any
of the Guarantied Obligations. Each Guarantor further agrees that, to the extent
the waiver or agreement to withhold the exercise of its rights of subrogation,
reimbursement, indemnification and contribution as set forth herein is found by
a court of competent jurisdiction to be void or voidable for any reason, any
rights of subrogation, reimbursement or indemnification such Guarantor may have
against Company or against any collateral or security, and any rights of
contribution such Guarantor may have against any such other guarantor, shall be
junior and subordinate to any rights Guarantied Party or the other Beneficiaries
may have against Company, to all right, title and interest Guarantied Party or
the other Beneficiaries may have in any such collateral or security, and to any
right Guarantied Party or the other Beneficiaries may have against such other
guarantor.
Any indebtedness of Company now or hereafter held by any
Guarantor is subordinated in right of payment to the Guarantied Obligations, and
any such indebtedness of Company to a Guarantor collected or received by such
Guarantor after an Event of Default has occurred and is continuing, and any
amount paid to a Guarantor on account of any subrogation, reimbursement,
indemnification or contribution rights referred to in the preceding paragraph
when all Guarantied Obligations have not been paid in full, shall be held in
trust for Guarantied Party on behalf of Beneficiaries and shall forthwith be
paid over to Guarantied Party for the benefit of Beneficiaries to be credited
and applied against the Guarantied Obligations.
7. EXPENSES. Guarantors jointly and severally agree to pay, or
cause to be paid, on demand, and to save Guarantied Party and the other
Beneficiaries harmless against liability for, (i) any and all costs and expenses
(including fees, costs of settlement, and disbursements of counsel and allocated
costs of internal counsel) incurred or expended by Guarantied Party or any other
Beneficiary in connection with the enforcement of or preservation of any rights
under this Guaranty and (ii) any and all costs and expenses (including those
arising from rights indemnification) required to be paid by Guarantors under the
provisions of any other Loan Document.
8. FINANCIAL CONDITION OF COMPANY. No Beneficiary shall have any
obligation, and each Guarantor waives any duty on the part of any Beneficiary,
to disclose or discuss with such Guarantor its assessment, or such Guarantor's
assessment, of the financial condition of Company or any matter or fact relating
to the business, operations or condition of Company. Each Guarantor has adequate
means to obtain information from Company on a continuing basis concerning the
financial condition of Company and its ability to perform its obligations under
the Loan Documents and the Lender Hedge Agreements, and each Guarantor assumes
the responsibility for being and keeping informed of the financial condition of
Company and of all circumstances bearing upon the risk of nonpayment of the
Guarantied Obligations.
9. REPRESENTATIONS AND WARRANTIES. Each Guarantor makes, for the
benefit of Beneficiaries, each of the representations and warranties made in the
Credit Agreement by Company as to such Guarantor, its assets, financial
condition, operations, organization, legal status, business and the Loan
Documents to which it is a party.
▇▇▇▇-▇
▇▇▇
▇▇. COVENANTS. Each Guarantor agrees that, so long as any part
of the Guaranteed Obligations shall remain unpaid, any Letter of Credit shall be
outstanding, any Lender shall have any Commitment or any Hedge Provider shall
have any obligation under any Lender Hedge Agreement, such Guarantor will,
unless Requisite Lenders shall otherwise consent in writing, perform or observe,
and cause its Subsidiaries to perform or observe, all of the terms, covenants
and agreements that the Loan Documents state that Company is to cause such
Guarantor and such Subsidiaries to perform or observe.
11. SET OFF. In addition to any other rights any Beneficiary may
have under law or in equity, if any amount shall at any time be due and owing by
a Guarantor to any Beneficiary under this Guaranty, such Beneficiary is
authorized at any time or from time to time, without notice (any such notice
being expressly waived), to set off and to appropriate and to apply any and all
deposits (general or special, including but not limited to indebtedness evidence
by certificates of deposit, whether matured or unmatured) and any other
indebtedness of such Beneficiary owing to a Guarantor and any other property of
such Guarantor held by a Beneficiary to or for the credit or the account of such
Guarantor against and on account of the Guarantied Obligations and liabilities
of such Guarantor to any Beneficiary under this Guaranty.
12. DISCHARGE OF GUARANTY UPON SALE OF GUARANTOR. If all of the
stock of a Guarantor or any of its successors in interest under this Guaranty
shall be sold or otherwise disposed of (including by merger or consolidation) in
a sale not prohibited by the Credit Agreement or otherwise consented to by
Requisite Lenders, the obligations of such Guarantor or such successor in
interest, as the case may be, hereunder shall automatically be discharged and
released without any further action by any Beneficiary or any other Person
effective as of the time of such sale ; provided that, if the sale of such stock
constitutes an Asset Sale as a condition precedent to such discharge and
release, Guarantied Party shall have received evidence satisfactory to it that
arrangements satisfactory to it have been made for delivery to Guarantied Party
of the Net Cash Proceeds of such Asset Sale to the extent required by the Credit
Agreement.
13. AMENDMENTS AND WAIVERS. No amendment, modification,
termination or waiver of any provision of this Guaranty, and no consent to any
departure by any Guarantor therefrom, shall in any event be effective without
the written concurrence of Guarantied Party and, in the case of any such
amendment or modification, Guarantors. Any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
it was given.
14. MISCELLANEOUS. It is not necessary for Beneficiaries to
inquire into the capacity or powers of any Guarantor or Company or the officers,
directors or any agents acting or purporting to act on behalf of any of them.
(a) The rights, powers and remedies given to Beneficiaries by
this Guaranty are cumulative and shall be in addition to and independent of all
rights, powers and remedies given to Beneficiaries by virtue of any statute or
rule of law or in any of the Loan Documents or Lender Hedge Agreements or any
agreement between one or more Guarantors and one or more Beneficiaries or
between Company and one or more Beneficiaries. Any forbearance or failure to
exercise, and any delay by any Beneficiary in exercising, any right, power or
remedy hereunder
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shall not impair any such right, power or remedy or be construed to be a waiver
thereof, nor shall it preclude the further exercise of any such right, power or
remedy.
(b) In case any provision in or obligation under this Guaranty
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
(c) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF GUARANTORS,
GUARANTIED PARTY AND THE OTHER BENEFICIARIES HEREUNDER SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
(d) This Guaranty shall inure to the benefit of the
Beneficiaries and their respective successors and assigns.
(e) ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY GUARANTOR
ARISING OUT OF OR RELATING TO THIS GUARANTY MAY BE BROUGHT IN ANY STATE OR
FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK, AND BY
EXECUTION AND DELIVERY OF THIS GUARANTY EACH GUARANTOR ACCEPTS FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH THIS GUARANTY. Each Guarantor agrees that service of all
process in any such proceeding in any such court may be made by registered or
certified mail, return receipt requested, to such Guarantor at its address set
forth below its signature hereto, such service being acknowledged by such
Guarantor to be sufficient for personal jurisdiction in any action against such
Guarantor in any such court and to be otherwise effective and binding service in
every respect. Nothing herein shall affect the right to serve process in any
other manner permitted by law or shall limit the right of Guarantied Party or
any Beneficiary to bring proceedings against such Guarantor in the courts of any
other jurisdiction.
(f) EACH GUARANTOR AND, BY ITS ACCEPTANCE OF THE BENEFITS
HEREOF, GUARANTIED PARTY EACH AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
GUARANTY. The scope of this waiver is intended to be all-encompassing of any and
all disputes that may be filed in any court and that relate to the subject
matter of this transaction, including without limitation contract claims, tort
claims, breach of duty claims and all other common law and statutory claims.
Each Guarantor and, by its acceptance of the benefits hereof, Guarantied Party
each (i) acknowledges that this waiver is a material inducement for such
Guarantor and Guarantied Party to enter into a business relationship, that such
Guarantor and Guarantied Party have already relied on this waiver in
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entering into this Guaranty or accepting the benefits thereof, as the case may
be, and that each will continue to rely on this waiver in their related future
dealings, and (ii) further warrants and represents that each has reviewed this
waiver with its legal counsel and that each knowingly and voluntarily waives its
jury trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS OF THIS GUARANTY. In the event of litigation, this Guaranty may
be filed as a written consent to a trial by the court.
15. ADDITIONAL GUARANTORS. The initial Guarantor(s) hereunder
shall be such of the Subsidiaries of Company as are signatories hereto on the
date hereof. From time to time subsequent to the date hereof, Subsidiaries of
Company may become parties hereto, as additional Guarantors (each an "ADDITIONAL
GUARANTOR"), by executing a counterpart of this Guaranty. A form of such a
counterpart is attached as Exhibit A. Upon delivery of any such counterpart to
Guarantied Party, notice of which is hereby waived by Guarantors, each such
Additional Guarantor shall be a Guarantor and shall be as fully a party hereto
as if such Additional Guarantor were an original signatory hereof. Each
Guarantor expressly agrees that its obligations arising hereunder shall not be
affected or diminished by the addition or release of any other Guarantor
hereunder, nor by any election of the Guarantied Party not to cause any
Subsidiary of Company to become an Additional Guarantor hereunder. This Guaranty
shall be fully effective as to any Guarantor that is or becomes a party hereto
regardless of whether any other Person becomes or fails to become or ceases to
be a Guarantor hereunder.
16. COUNTERPARTS; EFFECTIVENESS. This Guaranty may be executed
in any number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original for all purposes; but all such counterparts together shall
constitute but one and the same instrument. This Guaranty shall become effective
as to each Guarantor upon the execution of a counterpart hereof by such
Guarantor (whether or not a counterpart hereof shall have been executed by any
other Guarantor) and receipt by the Guaranteed Party of written or telephonic
notification of such execution and authorization of delivery thereof.
17. GUARANTIED PARTY AS AGENT.
(a) Guarantied Party has been appointed to act as
Guarantied Party hereunder by Lenders. Guarantied Party shall be obligated, and
shall have the right hereunder, to make demands, to give notices, to exercise or
refrain from exercising any rights, and to take or refrain from taking any
action, solely in accordance with this Guaranty and the Credit Agreement.
(b) Guarantied Party shall at all times be the same
Person that is Administrative Agent under the Credit Agreement. Written notice
of resignation by Administrative Agent pursuant to subsection 9.5 of the Credit
Agreement shall also constitute notice of resignation as Guarantied Party under
this Guaranty; and appointment of a successor Administrative Agent pursuant to
subsection 9.5 of the Credit Agreement shall also constitute appointment of a
successor Guarantied Party under this Guaranty. Upon the acceptance of any
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appointment as Administrative Agent under subsection 9.5 of the Credit Agreement
by successor Administrative Agent, that successor Administrative Agent shall
thereupon succeed to become vested with all the rights, powers, privileges and
duties of the retiring Guarantied Party under this Guaranty, and the retiring
Guarantied Party under this Guaranty shall promptly (i) transfer to such
successor Guarantied Party all sums held hereunder, together with all records
and other documents necessary or appropriate in connection with the performance
of the duties of the successor Guarantied Party under this Guaranty, and (ii)
take such other actions as may be necessary or appropriate in connection with
the assignment to such successor Guarantied Party of the rights created
hereunder, whereupon such retiring Guarantied Party shall be discharged from its
duties and obligations under this Guaranty. After any retiring (Guarantied
Party's resignation hereunder as Guarantied Party, the provisions of this
Guaranty shall inure to its benefits as to any actions taken or omitted to be
taken by it under this Guaranty while it was Guarantied Party hereunder.
18. NOTICE OF HEDGE AGREEMENTS. Guarantied Party shall not be
deemed to have any duty whatsoever with respect to any Hedge Provider until it
shall have received written notice in form and substance satisfactory to
Guarantied Party from Company, a Guarantor or the Hedge Provider as to the
existence and terms of the applicable Lender Hedge Agreement.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, each Guarantor and solely for the purposes
of the waiver of the right to jury trial contained in Section 14, Guarantied
Party, have caused this Guaranty to be duly executed and delivered by their
respective officers thereunto duly authorized as of the date first written
above.
[NAME OF GUARANTOR]
By:
---------------------------------
Title:
------------------------------
Address:
----------------------------
----------------------------
----------------------------
[NAME OF GUARANTOR]
By:
---------------------------------
Title:
------------------------------
Address:
----------------------------
----------------------------
----------------------------
[NAME OF GUARANTOR]
By:
---------------------------------
Title:
------------------------------
Address:
----------------------------
----------------------------
----------------------------
CREDIT SUISSE FIRST BOSTON
By:
---------------------------------
Title:
------------------------------
Address: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
-----------
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189
EXHIBIT A
FORM OF COUNTERPART FOR ADDITIONAL GUARANTORS
This COUNTERPART (this "COUNTERPART"), dated _______, 20__, is
delivered pursuant to Section 15 of the Guaranty referred to below. The
undersigned hereby agrees that this Counterpart may be attached to the Guaranty,
dated as of September ___, 2001 (as it may be from time to time amended,
modified, restated or supplemented, the "GUARANTY"; capitalized terms used
herein not otherwise defined herein shall have the meanings ascribed therein),
among the Guarantors named therein and Credit Suisse First Boston, as Guarantied
Party. The undersigned, by executing and delivering this Counterpart, hereby
becomes an Additional Guarantor under the Guaranty in accordance with Section 15
thereof and agrees to be bound by all of the terms thereof.
IN WITNESS WHEREOF, the undersigned has caused this Counterpart
to be duly executed and delivered by its officer thereunto duly authorized as of
______________, 20__.
[NAME OF ADDITIONAL GUARANTOR]
By:
---------------------------------
Title:
------------------------------
Address:
----------------------------
----------------------------
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EXHIBIT XIV
FORM OF SECURITY AGREEMENT
SECURITY AGREEMENT
This SECURITY AGREEMENT (this "AGREEMENT") is dated as of
September __, 2001 and entered into by and among THE ▇▇▇▇▇▇▇▇ GROUP, INC., a
Delaware corporation ("COMPANY"), each of THE UNDERSIGNED DIRECT AND INDIRECT
SUBSIDIARIES of Company (each of such undersigned Subsidiaries being a
"SUBSIDIARY GRANTOR" and collectively "SUBSIDIARY GRANTORS") and each ADDITIONAL
GRANTOR that may become a party hereto after the date hereof in accordance with
Section 22 hereof (each of the Company, each Subsidiary Grantor, and each
Additional Grantor being a "GRANTOR" and collectively the "GRANTORS") and CREDIT
SUISSE FIRST BOSTON, as administrative agent for and representative of (in such
capacity herein called "SECURED PARTY") the financial institutions ("LENDERS")
party to the Credit Agreement referred to below and any Hedge Providers (as
hereinafter defined).
PRELIMINARY STATEMENTS
A. Pursuant to the Credit Agreement dated as of September __,
2001 (said Credit Agreement, as amended, to the date hereof, and as it may
hereafter be further amended, restated, supplemented or otherwise modified from
time to time, being the "CREDIT AGREEMENT"; the terms defined therein and not
otherwise defined herein being used herein as therein defined), by and among
Company, the financial institutions listed therein as Lenders, and Credit Suisse
First Boston, as Administrative Agent (in such capacity, "ADMINISTRATIVE
AGENT"), Lenders have made certain commitments, subject to the terms and
conditions set forth in the Credit Agreement, to extend certain credit
facilities to Company.
B. Company may from time to time enter, or may from time to time
have entered, into one or more Hedge Agreements (collectively, the "LENDER HEDGE
AGREEMENTS") with one or more Persons that are Lenders or Affiliates of Lenders
at the time such Lender Hedge Agreements are entered into (in such capacity,
collectively, "HEDGE PROVIDERS") in accordance with the terms of the Credit
Agreement, and it is desired that the obligations of Company under the Lender
Hedge Agreements, including without limitation the obligation of Company to make
payments thereunder in the event of early termination thereof, together with all
obligations of Company under the Credit Agreement and the other Loan Documents,
be secured hereunder.
C. Subsidiary Grantors have executed and delivered that certain
Subsidiary Guaranty dated the date hereof (said Subsidiary Guaranty, as amended,
to the date hereof, and as it may hereafter be further amended, restated,
supplemented or otherwise modified from time to time, being the "SUBSIDIARY
GUARANTY") in favor of Secured Party for the benefit of Lenders and any Hedge
Providers, pursuant to which each Subsidiary Grantor has guarantied the prompt
payment and performance when due of all obligations of Company under the Credit
Agreement and all obligations of Company under the Lender Hedge Agreements,
including without limitation the obligation of Company to make payments
thereunder in the event of early termination thereof.
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D. It is a condition precedent to the initial extensions of
credit by Lenders under the Credit Agreement that Grantors listed on the
signature pages hereof shall have granted the security interests and undertaken
the obligations contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order to
induce Lenders to make Loans and other extensions of credit under the Credit
Agreement and to induce Hedge Providers to enter into the Lender Hedge
Agreements, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, each Grantor hereby agrees with
Secured Party as follows:
SECTION 1. GRANT OF SECURITY.
Each Grantor, to the full extent permitted by law, hereby
assigns to Secured Party, and hereby grants to Secured Party a security interest
in, all of such Grantor's right, title and interest in and to the following, in
each case whether now or hereafter existing, whether tangible or intangible, or
in which such Grantor now has or hereafter acquires an interest and wherever the
same may be located (the "COLLATERAL"):
(a) all machinery and equipment in all of its forms, all parts
thereof and all accessions thereto, including, without limitation, audio and/or
video recording equipment, transmitting towers, transmitters and broadcasting
equipment (any and all such machinery, equipment, parts and accessions being the
"EQUIPMENT");
(b) all inventory in all of its forms, including but not limited
to (i) all goods held by such Grantor for sale or lease or to be furnished under
contracts of service or so leased or furnished, (ii) all raw materials, work in
process, finished goods, and materials used or consumed in the manufacture,
packing, shipping, advertising, selling, leasing, furnishing or production of
such inventory or otherwise used or consumed in such Grantor's business, (iii)
all goods in which such Grantor has an interest in mass or a joint or other
interest or right of any kind, and (iv) all goods which are returned to or
repossessed by such Grantor and all accessions thereto and products thereof
(collectively the "INVENTORY") and all negotiable and non-negotiable documents
of title (including without limitation warehouse receipts, dock receipts and
bills of lading) issued by any Person covering any Inventory (any such
negotiable document of title being a "NEGOTIABLE DOCUMENT OF TITLE");
(c) all accounts, contract rights, chattel paper, documents,
instruments, letter-of-credit rights and other rights and obligations of any
kind owned by or owing to such Grantor and all rights in, to and under all
security agreements, leases and other contracts securing or otherwise relating
to any such accounts, contract rights, chattel paper, documents, instruments,
letter-of-credit rights or other rights and obligations (any and all such
accounts, contract rights, chattel paper, documents, instruments,
letter-of-credit rights and other rights and obligations being the "ACCOUNTS",
and any and all such security agreements, leases and other contracts being the
"RELATED CONTRACTS");
(d) all deposit accounts, including the restricted deposit
account established and maintained by Secured Party pursuant to Section 12 (the
"COLLATERAL ACCOUNT"), together with (i) all amounts on deposit from time to
time in such deposit accounts and (ii) all interest,
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cash, instruments, securities and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of the foregoing ("DEPOSIT ACCOUNTS");
(e) the "SECURITIES COLLATERAL", which term means:
(i) all shares of stock, partnership interests,
interests in joint ventures, limited liability company interests and all
other equity interests in a Person, including all securities convertible
into, and rights, warrants, options and other rights to purchase or
otherwise acquire, any of the foregoing now or hereafter owned by such
Grantor, including those owned on the date hereof and described on
Schedule 1(e)(i), and the certificates or other instruments representing
any of the foregoing and any interest of such Grantor in the entries on
the books of any securities intermediary pertaining thereto (the
"PLEDGED SHARES"), and all dividends, distributions, returns of capital,
cash, warrants, options, rights, instruments, rights to vote or manage
the business of such Person pursuant to organizational documents
governing the rights and obligations of the stockholders, partners,
members or other owners thereof and other property or proceeds from time
to time received, receivable or otherwise distributed in respect of or
in exchange for any or all of such Pledged Shares; provided, that if the
issuer of any of such Pledged Shares is a controlled foreign corporation
(used hereinafter as such term is defined in Section 975(a) or a
successor provision of the Internal Revenue Code), the Pledged Shares
shall not include any shares of stock of such issuer in excess of the
number of shares of such issuer possessing up to but not exceeding 66%
of the voting power of all classes of capital stock entitled to vote of
such issuer, and all dividends, cash, warrants, rights, instruments and
other property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of
such Pledged Shares;
(ii) all indebtedness from time to time owed to such
Grantor by any obligor that is, or becomes, a direct or indirect
Subsidiary of such Grantor, or by any obligor of which Grantor is a
direct or indirect Subsidiary, including the indebtedness described on
Schedule 1(e)(ii) and issued by the obligors named therein, and the
instruments evidencing such indebtedness (the "PLEDGED DEBT"), and all
interest, cash, instruments and other property or proceeds from time to
time received, receivable or otherwise distributed in respect of or in
exchange for any or all of the Pledged Debt; and
(iii) all other investment property, securities (whether
certificated or uncertificated), securities entitlements, securities
accounts (including, without limitation the Securities Accounts),
commodity contracts, commodity accounts, financial assets, all credit
balances held in the Securities Accounts, any property credited to the
Securities Accounts or acquired in exchange for, with proceeds from, or
distributions on, such property, and all interest, dividends, cash,
instruments, securities and other property or proceeds received,
receivable or otherwise distributed in respect of or in exchange for any
or all of the foregoing, of such Grantor;
(f) the "INTELLECTUAL PROPERTY COLLATERAL", which term means:
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(i) all rights, title and interest (including rights
acquired pursuant to a license or otherwise) in and to all trademarks,
service marks, designs, logos, indicia, tradenames, trade dress,
corporate names, company names, business names, fictitious business
names, trade styles and/or other source and/or business identifiers and
applications pertaining thereto, owned by such Grantor, or hereafter
adopted and used, in its business (including, without limitation, the
trademarks specifically identified in Schedule 1(f)(i), as the same may
be amended pursuant hereto from time to time) (collectively, the
"TRADEMARKS"), all registrations that have been or may hereafter be
issued or applied for thereon in the United States and any state thereof
and in foreign countries (including, without limitation, the
registrations and applications specifically identified in Schedule
1(f)(i), as the same may be amended pursuant hereto from time to time)
(the "TRADEMARK REGISTRATIONS"), all common law and other rights in and
to the Trademarks in the United States and any state thereof and in
foreign countries (the "TRADEMARK RIGHTS"), and all goodwill of such
Grantor's business symbolized by the Trademarks and associated therewith
(which together with all goodwill relating to the Copyrights and
Patents, the "ASSOCIATED GOODWILL");
(ii) all rights, title and interest (including rights
acquired pursuant to a license or otherwise) in and to all patents and
patent applications and rights and interests in patents and patent
applications under any domestic or foreign law that are presently, or in
the future may be, owned or held by such Grantor and all patents and
patent applications and rights, title and interests in patents and
patent applications under any domestic or foreign law that are
presently, or in the future may be, owned by such Grantor in whole or in
part (including, without limitation, the patents and patent applications
listed in Schedule 1(f)(ii), as the same may be amended pursuant hereto
from time to time), all rights corresponding thereto (including, without
limitation, the right, exercisable only upon the occurrence and during
the continuation of an Event of Default, to ▇▇▇ for past, present and
future infringements in the name of such Grantor or in the name of
Secured Party or Lenders), and all re-issues, divisions, continuations,
renewals, extensions and continuations-in-part thereof (all of the
foregoing being collectively referred to as the "PATENTS"); it being
understood that the rights and interests included in the Intellectual
Property Collateral hereby shall include, without limitation, all rights
and interests pursuant to licensing or other contracts in favor of such
Grantor pertaining to patent applications and patents presently or in
the future owned or used by third parties but, in the case of third
parties which are not Affiliates of such Grantor, only to the extent
permitted by such licensing or other contracts and, if not so permitted,
only with the consent of such third parties; and
(iii) all rights, title and interest (including rights
acquired pursuant to a license or otherwise) under copyright in various
published and unpublished works of authorship including, without
limitation, computer programs, computer data bases, other computer
software, layouts, trade dress, drawings, designs, writings, and
formulas owned by such Grantor (including, without limitation, the works
listed on Schedule 1(f)(iii), as the same may be amended pursuant hereto
from time to time) (collectively, the "COPYRIGHTS"), all copyright
registrations issued to such Grantor and applications for copyright
registration that have been or may hereafter be issued or applied for
thereon by such Grantor in the United States and any state thereof and
in foreign countries
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(including, without limitation, the registrations listed on Schedule
1(f)(iii), as the same may be amended pursuant hereto from time to time)
(collectively, the "COPYRIGHT REGISTRATIONS"), all common law and other
rights in and to the Copyrights in the United States and any state
thereof and in foreign countries including all copyright licenses (but
with respect to such copyright licenses, only to the extent permitted by
such licensing arrangements) (the "COPYRIGHT RIGHTS"), including,
without limitation, each of the Copyrights, rights, titles and interests
in and to the Copyrights, all derivative works and other works
protectable by copyright, which are presently, or in the future may be,
owned, created (as a work for hire for the benefit of such Grantor),
authored (as a work for hire for the benefit of such Grantor), or
acquired by such Grantor, in whole or in part, and all Copyright Rights
with respect thereto and all Copyright Registrations therefor,
heretofore or hereafter granted or applied for, and all renewals and
extensions thereof, throughout the world, including all proceeds thereof
(such as, by way of example and not by limitation, license royalties and
proceeds of infringement suits), the right to renew and extend such
Copyright Registrations and Copyright Rights and to register works
protectable by copyright and the right to ▇▇▇ for past, present and
future infringements of the Copyrights and Copyright Rights;
(g) all information used or useful or arising from the business
including all goodwill, trade secrets, trade secret rights, know-how, customer
lists, processes of production, ideas, confidential business information,
techniques, processes, formulas, and all other proprietary information;
(h) the agreements listed in Schedule 1(h), as each such
agreement may be amended, restated, supplemented or otherwise modified from time
to time (said agreements, as so amended, restated, supplemented or otherwise
modified, being referred to herein individually as an "ASSIGNED AGREEMENT" and
collectively as the "ASSIGNED AGREEMENTS"), including, without limitation, (i)
all rights of such Grantor to receive moneys due or to become due under or
pursuant to the Assigned Agreements, (ii) all rights of such Grantor to receive
proceeds of any insurance, indemnity, warranty or guaranty with respect to the
Assigned Agreements, (iii) all claims of such Grantor for damages arising out of
any breach of or default under the Assigned Agreements, and (iv) all rights of
such Grantor to terminate, amend, supplement, modify or exercise rights or
options under the Assigned Agreements, to perform thereunder and to compel
performance and otherwise exercise all remedies thereunder;
(i) to the extent not included in any other paragraph of this
Section 1, all general intangibles, including, without limitation, tax refunds,
payment intangibles, other rights to payment or performance, choses in action,
software and judgments taken on any rights or claims included in the Collateral;
(j) all plant fixtures, business fixtures and other fixtures and
storage and office facilities, and all accessions thereto and products thereof;
(k) all books, records, ledger cards, files, correspondence,
computer programs, tapes, disks, DAT tapes and other recorded media, and related
data processing software that at any time evidence or contain information
relating to any of the Collateral or are otherwise necessary or helpful in the
collection thereof or realization thereupon;
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(l) all rights under all present and future authorizations,
permits, licenses and franchises issued, granted or licensed to such Grantor for
the operation of its business, including, without limitation, each of the FCC
Licenses listed on Schedule 5.1E to the Credit Agreement, in each case, to the
extent permitted by applicable law, including the Communications Act, and the
rules and regulations of the FCC, and all rights incident or appurtenant to such
FCC Licenses, including, without limitation, the right to receive all proceeds
derived from or in connection with the sale, assignment or transfer of such FCC
Licenses, to the maximum extent permitted by applicable law;
(m) any motor vehicle, van, truck or car with any broadcast or
transmission equipment currently owned or hereafter acquired by any Grantor
(each, a "BROADCAST VEHICLE"), a schedule of which Company shall provide to
Administrative Agent on or before the date that the Post-Closing Date Mortgages
are required to be delivered pursuant to subsection 6.12 of the Credit
Agreement;
(n) all other tangible personal property to the extent not
included in the foregoing, now or hereafter owned or leased by any Grantor or in
which any Grantor has any rights or interest and located in or on, or attached
to, or used or intended to be used or which are now or may hereafter be
appropriated for use on or in connection with the operation of the Facilities
(the "OTHER PERSONALTY"); and
(o) all proceeds, products, rents and profits of or from any and
all of the foregoing Collateral and, to the extent not otherwise included, all
payments under insurance (whether or not Secured Party is the loss payee
thereof), or any indemnity, warranty or guaranty, payable by reason of loss or
damage to or otherwise with respect to any of the foregoing Collateral. For
purposes of this Agreement, the term "PROCEEDS" includes whatever is receivable
or received when Collateral or proceeds are sold, exchanged, collected or
otherwise disposed of, whether such disposition is voluntary or involuntary.
Notwithstanding anything herein to the contrary, in no event
shall the Collateral include, and no Grantor shall be deemed to have granted a
security interest in (i) any of such Grantor's rights or interests in any
authorization, license, permit, contract or agreement to which such Grantor is a
party or any of its rights or interests thereunder to the extent, but only to
the extent, that such a grant would, under the terms of such authorization,
license, permit, contract or agreement or otherwise, result in a breach of the
terms of, or constitute a default under any authorization, license, permit,
contract or agreement to which such Grantor is a party (other than to the extent
that any such term would be rendered ineffective pursuant to the Uniform
Commercial Code, as it exists on the date of this Agreement or as it may
hereafter be amended, in the State of New York (the "UCC") or any other
applicable law (including the Bankruptcy Code) or principles of equity);
provided, that immediately upon the ineffectiveness, lapse or termination of any
such provision, the Collateral shall include, and such Grantor shall be deemed
to have granted a security interest in, all such rights and interests as if such
provision had never been in effect, or (ii) any real property leasehold, unless
a Grantor has executed a leasehold mortgage or leasehold deed of trust covering
such real property leasehold.
Each item of Collateral listed in this Section 1 that is defined
in Articles 8 or 9 of the UCC shall have the meaning set forth in the UCC, it
being the intention of Grantors that the
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description of the Collateral set forth above be construed to include the
broadest possible range of assets.
SECTION 2. SECURITY FOR OBLIGATIONS.
This Agreement secures, and the Collateral assigned by each
Grantor is collateral security for, the prompt payment or performance in full
when due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including without limitation the payment of
amounts that would become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code), of all Secured Obligations of such
Grantor. "SECURED OBLIGATIONS" means:
(a) with respect to Company, all obligations and liabilities of
every nature of Company now or hereafter existing under or arising out of or in
connection with the Credit Agreement and the other Loan Documents and any Lender
Hedge Agreement, and
(b) with respect to each Subsidiary Grantor and Additional
Grantor, all obligations and liabilities of every nature of such Grantors now or
hereafter existing under or arising out of or in connection with the Guaranty;
in each case together with all extensions or renewals thereof, whether for
principal, interest (including without limitation interest that, but for the
filing of a petition in bankruptcy with respect to Company or any other Grantor,
would accrue on such obligations, whether or not a claim is allowed against
Company or such Grantor for such interest in the related bankruptcy proceeding),
reimbursement of amounts drawn under Letters of Credit, payments for early
termination of Lender Hedge Agreements, fees, expenses, indemnities or
otherwise, whether voluntary or involuntary, direct or indirect, absolute or
contingent, liquidated or unliquidated, whether or not jointly owed with others,
and whether or not from time to time decreased or extinguished and later
increased, created or incurred, and all or any portion of such obligations or
liabilities that are paid, to the extent all or any part of such payment is
avoided or recovered directly or indirectly from Secured Party or any Lender or
Hedge Provider as a preference, fraudulent transfer or otherwise, and all
obligations of every nature of Grantors now or hereafter existing under this
Agreement.
SECTION 3. GRANTORS REMAIN LIABLE.
Anything contained herein to the contrary notwithstanding, (a)
each Grantor shall remain liable under any contracts and agreements included in
the Collateral, to the extent set forth therein, to perform all of its duties
and obligations thereunder to the same extent as if this Agreement had not been
executed, (b) the exercise by Secured Party of any of its rights hereunder shall
not release any Grantor from any of its duties or obligations under the
contracts and agreements included in the Collateral, and (c) Secured Party shall
not have any obligation or liability under any contracts, licenses, and
agreements included in the Collateral by reason of this Agreement, nor shall
Secured Party be obligated to perform any of the obligations or duties of any
Grantor thereunder or to take any action to collect or enforce any claim for
payment assigned hereunder.
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SECTION 4. REPRESENTATIONS AND WARRANTIES.
Each Grantor represents and warrants as follows:
(a) OWNERSHIP OF COLLATERAL. Except as expressly permitted by
the Credit Agreement and for the security interest created by this Agreement,
such Grantor owns the Collateral owned by such Grantor free and clear of any
Lien. Except as expressly permitted by the Credit Agreement and such as may have
been filed in favor of Secured Party relating to this Agreement, no effective
financing statement or other instrument similar in effect covering all or any
part of the Collateral is on file in any filing or recording office.
(b) LOCATIONS OF EQUIPMENT AND INVENTORY. All of the Equipment
and Inventory is, as of the date hereof, or in the case of an Additional
Grantor, the date of the applicable counterpart entered into pursuant to Section
22 (each, a "COUNTERPART") located at the places specified in Schedule 4(b),
except for Inventory which, in the ordinary course of business, is in transit
either (i) from a supplier to a Grantor, (ii) between the locations specified in
Schedule 4(b), or (ii) to customers of a Grantor.
(c) NEGOTIABLE DOCUMENTS OF TITLE. No Negotiable Documents of
Title are outstanding with respect to any of the Inventory.
(d) OFFICE LOCATIONS; TYPE AND JURISDICTION OF ORGANIZATION. The
chief place of business, the chief executive office and the office where such
Grantor keeps its records regarding the Accounts and all originals of all
chattel paper that evidence Accounts are, as of the date hereof, and have been
for the four month period preceding the date hereof, or, in the case of an
Additional Grantor, the date of the applicable Counterpart, located at the
locations set forth on Schedule 4(d); such Grantor's type of organization (i.e.
corporation, limited partnership, etc.), jurisdiction of organization and
organization number provided by the applicable Government Authority of the
jurisdiction of organization are listed on Schedule 4(d).
(e) NAMES. No Grantor (or predecessor by merger or otherwise of
such Grantor) has, within the four month period preceding the date hereof, or,
in the case of an Additional Grantor, the date of the applicable Counterpart,
had a different name from the name of such Grantor listed on the signature pages
hereof, except the names listed in Schedule 4(e) annexed hereto.
(f) DELIVERY OF CERTAIN COLLATERAL. All certificates or
instruments (excluding checks) evidencing, comprising or representing the
Collateral (including, without limitation, the Securities Collateral) have been
delivered to Secured Party duly endorsed or accompanied by duly executed
instruments of transfer or assignment in blank.
(g) SECURITIES COLLATERAL. (i) All of the Pledged Shares
described on Schedule 1(e)(i) have been duly authorized and validly issued and
are fully paid and non-assessable; (ii) all of the Pledged Debt described on
Schedule 1(e)(ii) has been duly authorized, authenticated or issued, and
delivered and is the legal, valid and binding obligation of the issuers thereof
and is not in default; (iii) except as set forth on Schedule 1(e)(i), the
Pledged Shares constitute all of the issued and outstanding shares of stock or
other equity interests of each issuer thereof (subject to the proviso to Section
1(e)(i) with respect to shares of a foreign controlled
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corporation), and there are no outstanding warrants, options or other rights to
purchase, or other agreements outstanding with respect to, or property that is
now or hereafter convertible into, or that requires the issuance or sale of, any
Pledged Shares; (iv) the Pledged Debt constitutes all of the issued and
outstanding intercompany indebtedness evidenced by a promissory note of the
respective issuers thereof owing to such Grantor; (v) Schedule 1(e)(i) sets
forth all of the Pledged Shares owned by each Grantor on the date hereof; and
(vi) Schedule 1(e)(ii) sets forth all of the Pledged Debt in existence on the
date hereof.
(h) INTELLECTUAL PROPERTY COLLATERAL.
(i) a true and complete list of all Trademark
Registrations and Trademark applications owned, held (whether pursuant
to a license or otherwise) or used by such Grantor, in whole or in part,
is set forth in Schedule 1(f)(i);
(ii) a true and complete list of all Patents owned, held
(whether pursuant to a license or otherwise) or used by such Grantor, in
whole or in part, is set forth in Schedule 1(f)(ii);
(iii) a true and complete list of all Copyright
Registrations and applications for Copyright Registrations held (whether
pursuant to a license or otherwise) by such Grantor, in whole or in
part, is set forth in Schedule 1(f)(iii);
(iv) after reasonable inquiry, such Grantor is not aware
of any pending or threatened claim by any third party that any of the
Intellectual Property Collateral owned, held or used by such Grantor is
invalid or unenforceable; and
(v) no effective security interest or other Lien
covering all or any part of the Intellectual Property Collateral is on
file in the United States Patent and Trademark Office or the United
States Copyright Office.
(i) PERFECTION. The security interests in the Collateral granted
to Secured Party for the ratable benefit of the Lenders and Hedge Providers
hereunder constitute valid security interests in the Collateral, securing the
payment of the Secured Obligations. Upon (i) the filing of UCC financing
statements naming each Grantor as "debtor", naming Secured Party as "secured
party" and describing the Collateral in the filing offices with respect to such
Grantor set forth on Schedule 4(i), (ii) in the case of the Securities
Collateral consisting of certificated securities or evidenced by instruments,
delivery of the certificates representing such certificated securities and
delivery of such instruments to Secured Party, in each case duly endorsed or
accompanied by duly executed instruments of assignment or transfer in blank,
(iii) in the case of the Intellectual Property Collateral, in addition to the
filing of such UCC financing statements, the filing of a Grant of Trademark
Security Interest, substantially in the form of Exhibit I, and a Grant of Patent
Security Interest, substantially in the form of Exhibit II, with the United
States Patent and Trademark Office and the filing of a Grant of Copyright
Security Interest, substantially in the form of Exhibit III, with the United
States Copyright Office (each such Grant of Trademark Security Interest, Grant
of Patent Security Interest and Grant of Copyright Security Interest being
referred to herein as a "GRANT"), and (iv) in the case of Equipment or Broadcast
Vehicles that are covered by a certificate of title, the filing with the
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registrar of motor vehicles or other appropriate authority in the applicable
jurisdiction of an application requesting the notation of the security interest
created hereunder on such certificate of title, the security interests in the
Collateral granted to Secured Party for the ratable benefit of the Lenders and
Hedge Providers will constitute perfected security interests therein prior to
all other Liens (except for Permitted Encumbrances), and all filings and other
actions necessary or desirable to perfect and protect such security interest
have been duly made or taken.
SECTION 5. FURTHER ASSURANCES.
(a) GENERALLY. Each Grantor agrees that from time to time, at
the expense of Grantors, such Grantor will promptly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary or desirable, or that Secured Party may request, in order to perfect
and protect any security interest granted or purported to be granted hereby or
to enable Secured Party to exercise and enforce its rights and remedies
hereunder with respect to any Collateral. Without limiting the generality of the
foregoing, each Grantor will: (i) at the request of Secured Party, ▇▇▇▇
conspicuously each item of chattel paper included in the Accounts, each Related
Contract and, at the request of Secured Party, each of its records pertaining to
the Collateral, with a legend, in form and substance satisfactory to Secured
Party, indicating that such Collateral is subject to the security interest
granted hereby, (ii) at the request of Secured Party, deliver and pledge to
Secured Party hereunder all promissory notes and other instruments (including
checks) and all original counterparts of chattel paper constituting Collateral,
duly endorsed and accompanied by duly executed instruments of transfer or
assignment, all in form and substance satisfactory to Secured Party, (iii) (A)
execute and file such financing or continuation statements, or amendments
thereto, (B) execute and deliver, and cause to be executed and delivered,
agreements establishing that Secured Party has control of specified items of
Collateral and (C) deliver such other instruments or notices, in each case, as
may be necessary or desirable, or as Secured Party may request, in order to
perfect and preserve the security interests granted or purported to be granted
hereby, (iv) furnish to Secured Party from time to time statements and schedules
further identifying and describing the Collateral and such other reports in
connection with the Collateral as Secured Party may reasonably request, all in
reasonable detail, (v) promptly upon Secured Party's written request with
respect to any Equipment (other than a Broadcast Vehicle) that is covered by a
certificate of title under a statute of any jurisdiction under the law of which
indication of a security interest on such certificate is required as a condition
of perfection thereof and promptly upon Secured Party's reasonable request (but
in no event prior to the date that the Post-Closing Date Mortgages are required
to be delivered pursuant to subsection 6.12 of the Credit Agreement) with
respect to any Broadcast Vehicle, execute and file with the registrar of motor
vehicles or other appropriate authority in such jurisdiction an application or
other document requesting the notation or other indication of the security
interest created hereunder on such certificate of title, (vi) within 30 days
after the end of each calendar quarter, deliver to Secured Party copies of all
such applications or other documents filed during such calendar quarter and
copies of all such certificates of title issued during such calendar quarter
indicating the security interest created hereunder in the items of Equipment
covered thereby, (vii) at any reasonable time, upon request by Secured Party,
exhibit the Collateral to and allow inspection of the Collateral by Secured
Party, or persons designated by Secured Party, (viii) at Secured Party's
request, appear in and defend any action or proceeding that may affect such
Grantor's title to or Secured Party's security interest in all or any part of
the Collateral, (ix) at Secured Party's request, promptly execute and deliver to
Secured
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Party agreements providing for the control, as that term is defined in the UCC,
by Secured Party of all deposit accounts of such Grantor, and (x) use
commercially reasonable efforts to obtain any necessary consents of third
parties to the assignment and perfection of a security interest to Secured Party
with respect to any Collateral. Each Grantor hereby authorizes Secured Party to
file one or more financing or continuation statements, and amendments thereto,
relative to all or any part of the Collateral without the signature of any
Grantor. Each Grantor agrees that a carbon, photographic or other reproduction
of this Agreement or of a financing statement signed by such Grantor shall be
sufficient as a financing statement and may be filed as a financing statement in
any and all jurisdictions.
(b) SECURITIES COLLATERAL. Without limiting the generality of
the foregoing Section 5(a), each Grantor agrees that it will, upon obtaining any
additional shares of stock or other securities required to be pledged hereunder,
promptly (and in any event within five Business Days) deliver to Secured Party a
Pledge Supplement, duly executed by such Grantor, in substantially the form of
Exhibit IV (a "PLEDGE SUPPLEMENT"), in respect of the additional Pledged Shares
or Pledged Debt to be pledged pursuant to this Agreement. Upon each delivery of
a Pledge Supplement to Secured Party, the representations and warranties
contained in clauses (i)-(iv) of Section 4(g) hereof shall be deemed to have
been made by such Grantor as to the Securities Collateral described in such
Pledge Supplement as of the date thereof. Each Grantor hereby authorizes Secured
Party to attach each Pledge Supplement to this Agreement and agrees that all
Pledged Shares or Pledged Debt of such Grantor listed on any Pledge Supplement
shall for all purposes hereunder be considered Collateral of such Grantor;
provided, the failure of any Grantor to execute a Pledge Supplement with respect
to any additional Pledged Shares or Pledged Debt pledged pursuant to this
Agreement shall not impair the security interest of Secured Party therein or
otherwise adversely affect the rights and remedies of Secured Party hereunder
with respect thereto.
(c) INTELLECTUAL PROPERTY COLLATERAL. Without limiting the
generality of the foregoing Section 5(a), if any Grantor shall hereafter obtain
rights to any new Intellectual Property Collateral or become entitled to the
benefit of (i) any patent application or patent or any reissue, division,
continuation, renewal, extension or continuation-in-part of any Patent or any
improvement of any Patent or (ii) any Copyright Registration, application for
Copyright Registration or renewals or extension of any Copyright, then in any
such case, the provisions of this Agreement shall automatically apply thereto.
Each Grantor shall promptly notify Secured Party in writing of any of the
foregoing rights acquired by such Grantor after the date hereof and of (i) any
Trademark Registrations issued or application for a Trademark Registration or
application for a Patent made, and (ii) any Copyright Registrations issued or
applications for Copyright Registration made, in any such case, after the date
hereof. Promptly after the filing of an application for any (1) Trademark
Registration; (2) Patent; and (3) Copyright Registration, each Grantor shall
execute and deliver to Secured Party and record in all places where a Grant is
recorded an IP Supplement, substantially in the form of Exhibit V (an "IP
SUPPLEMENT"), pursuant to which such Grantor shall grant to Secured Party a
security interest to the extent of its interest in such Intellectual Property
Collateral; provided, if, in the reasonable judgment of such Grantor, after due
inquiry, granting such interest would result in the grant of a Trademark
Registration or Copyright Registration in the name of Secured Party, such
Grantor shall give written notice to Secured Party as soon as reasonably
practicable and the filing shall instead be undertaken as soon as practicable
but in no case later than immediately following the grant of the
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applicable Trademark Registration or Copyright Registration, as the case may be.
Upon delivery to Secured Party of an IP Supplement, Schedules 1(f)(i), 1(f)(ii),
and 1(f)(iii) hereto and Schedule A to each Grant, as applicable, shall be
deemed modified to include reference to any right, title or interest in any
existing Intellectual Property Collateral or any Intellectual Property
Collateral included on Schedule A to such IP Supplement. Each Grantor hereby
authorizes Secured Party to modify this Agreement without the signature or
consent of any Grantor by attaching Schedules 1(f)(i), 1(f)(ii), and 1(f)(iii),
as applicable, that have been modified to include such Intellectual Property
Collateral or to delete any reference to any right, title or interest in any
Intellectual Property Collateral in which any Grantor no longer has or claims
any right, title or interest; provided, the failure of any Grantor to execute an
IP Supplement with respect to any additional Intellectual Property Collateral
pledged pursuant to this Agreement shall not impair the security interest of
Secured Party therein or otherwise adversely affect the rights and remedies of
Secured Party hereunder with respect thereto.
SECTION 6. CERTAIN COVENANTS OF GRANTORS.
Each Grantor shall:
(a) not use or permit any Collateral to be used unlawfully or in
violation of any provision of this Agreement or any applicable statute,
regulation or ordinance or any policy of insurance covering the Collateral;
(b) notify Secured Party of any change in such Grantor's name,
identity or corporate structure within 15 days of such change;
(c) give Secured Party 30 days' prior written notice of any
change in such Grantor's chief place of business, chief executive office or
residence or the office where such Grantor keeps its records regarding the
Accounts and all originals of all chattel paper that evidence Accounts or a
reincorporation, reorganization or other action that results in a change of the
jurisdiction of organization of such Grantor;
(d) if Secured Party gives value to enable such Grantor to
acquire rights in or the use of any Collateral, use such value for such
purposes; and
(e) except as expressly permitted by the Credit Agreement, pay
promptly when due all property and other taxes, assessments and governmental
charges or levies imposed upon, and all claims (including claims for labor,
services, materials and supplies) against, the Collateral, except to the extent
the validity thereof is being contested in good faith; provided that such
Grantor shall in any event pay such taxes, assessments, charges, levies or
claims not later than five days prior to the date of any proposed sale under any
judgment, writ or warrant of attachment entered or filed against such Grantor or
any of the Collateral as a result of the failure to make such payment.
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SECTION 7. SPECIAL COVENANTS WITH RESPECT TO EQUIPMENT AND
INVENTORY.
Each Grantor shall:
(a) keep the Equipment and Inventory owned by such Grantor at
the places therefor specified on Schedule 4(b) or, upon 30 days' prior written
notice to Secured Party, at such other places in jurisdictions where all action
that may be necessary or desirable, or that Secured Party may request, in order
to perfect and protect any security interest granted or purported to be granted
hereby, or to enable Secured Party to exercise and enforce its rights and
remedies hereunder, with respect to such Equipment and Inventory shall have been
taken;
(b) cause the Equipment owned by such Grantor to be maintained
and preserved in the same condition, repair and working order as when new,
ordinary wear and tear excepted, and in accordance with such Grantor's past
practices, and shall forthwith make or cause to be made all repairs,
replacements and other improvements in connection therewith that are necessary
or desirable to such end. Each Grantor shall promptly furnish to Secured Party a
statement respecting any material loss or damage to any of the Equipment owned
by such Grantor;
(c) keep correct and accurate records of Inventory owned by such
Grantor, itemizing and describing the kind, type and quantity of such Inventory,
such Grantor's cost therefor and (where applicable) the current list prices for
such Inventory;
(d) if any Inventory is in possession or control of any of such
Grantor's agents or processors, if the aggregate book value of all such
Inventory exceeds $50,000, and in any event upon the occurrence of an Event of
Default (as defined in Section 16(a)), instruct such agent or processor to hold
all such Inventory for the account of Secured Party and subject to the
instructions of Secured Party;
(e) promptly upon the issuance and delivery to such Grantor of
any Negotiable Document of Title, deliver such Negotiable Document of Title to
Secured Party;
(f) each Grantor shall, at its own expense, maintain insurance
with respect to the Equipment and Inventory in accordance with the terms of the
Credit Agreement; and
(g) upon (i) the occurrence and during the continuation of any
Event of Default or (ii) the actual or constructive loss (in excess of $100,000
per occurrence) of any Equipment or Inventory, all insurance payments in respect
of such Equipment or Inventory shall be paid to and applied by Secured Party as
specified in Section 18.
SECTION 8. SPECIAL COVENANTS WITH RESPECT TO ACCOUNTS AND
RELATED CONTRACTS.
(a) Each Grantor shall keep its chief place of business and
chief executive office and the office where it keeps its records concerning the
Accounts and Related Contracts, and all originals of all chattel paper that
evidence Accounts, at the locations therefor set forth on Schedule 4(d), upon 30
days' prior written notice to Secured Party, at such other location in a
jurisdiction where all action that may be necessary or desirable, or that
Secured Party may
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request, in order to perfect and protect any security interest granted or
purported to be granted hereby, or to enable Secured Party to exercise and
enforce its rights and remedies hereunder, with respect to such Accounts and
Related Contracts shall have been taken. Each Grantor will hold and preserve
such records and chattel paper and will permit representatives of Secured Party
at any time during normal business hours to inspect and make abstracts from such
records and chattel paper, and each Grantor agrees to render to Secured Party,
at Grantor's cost and expense, such clerical and other assistance as may be
reasonably requested with regard thereto. Promptly upon the request of Secured
Party, each Grantor shall deliver to Secured Party complete and correct copies
of each Related Contract.
(b) Each Grantor shall, for not less than three (3) years from
the date on which each Account of such Grantor arose, maintain (i) complete
records of such Account, including records of all payments received, credits
granted and merchandise returned, and (ii) all documentation relating thereto.
(c) Except as otherwise provided in this subsection (c), each
Grantor shall continue to collect, at its own expense, all amounts due or to
become due to such Grantor under the Accounts and Related Contracts. In
connection with such collections, each Grantor may take (and, upon the
occurrence and during the continuance of an Event of Default at Secured Party's
direction, shall take) such action as such Grantor or Secured Party may deem
necessary or advisable to enforce collection of amounts due or to become due
under the Accounts; provided, however, that Secured Party shall have the right
at any time, upon the occurrence and during the continuation of an Event of
Default and upon written notice to such Grantor of its intention to do so, to
notify the account debtors or obligors under any Accounts of the assignment of
such Accounts to Secured Party and to direct such account debtors or obligors to
make payment of all amounts due or to become due to such Grantor thereunder
directly to Secured Party, to notify each Person maintaining a lockbox or
similar arrangement to which account debtors or obligors under any Accounts have
been directed to make payment to remit all amounts representing collections on
checks and other payment items from time to time sent to or deposited in such
lockbox or other arrangement directly to Secured Party and, upon such
notification and at the expense of Grantors, to enforce collection of any such
Accounts and to adjust, settle or compromise the amount or payment thereof, in
the same manner and to the same extent as such Grantor might have done. After
receipt by such Grantor of the notice from Secured Party referred to in the
proviso to the preceding sentence, (i) all amounts and proceeds (including
checks and other instruments) received by such Grantor in respect of the
Accounts and the Related Contracts shall be received in trust for the benefit of
Secured Party hereunder, shall be segregated from other funds of such Grantor
and shall be forthwith paid over or delivered to Secured Party in the same form
as so received (with any necessary endorsement) to be held as cash Collateral
and applied as provided by Section 18, and (ii) such Grantor shall not adjust,
settle or compromise the amount or payment of any Account, or release wholly or
partly any account debtor or obligor thereof, or allow any credit or discount
thereon.
SECTION 9. SPECIAL COVENANTS WITH RESPECT TO THE SECURITIES
COLLATERAL.
(a) DELIVERY. Each Grantor agrees that all certificates or
instruments representing or evidencing the Securities Collateral shall be
delivered to and held by or on behalf of Secured Party pursuant hereto and shall
be in suitable form for transfer by delivery or, as
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applicable, shall be accompanied by such Grantor's endorsement, where necessary,
or duly executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to Secured Party. Secured Party shall have the right at
any time to exchange certificates or instruments representing or evidencing
Securities Collateral for certificates or instruments of smaller or larger
denominations.
(b) COVENANTS. Each Grantor shall (i) not, except as expressly
permitted by the Credit Agreement, permit any issuer of Pledged Shares that is
wholly-owned or controlled by Company and/or the Subsidiary Grantors, other than
any iKnow Subsidiary (each, an "AFFILIATE ISSUER") to merge or consolidate
unless all the outstanding capital stock or other equity interests of the
surviving or resulting Person is, upon such merger or consolidation, pledged
hereunder and no cash, securities or other property is distributed in respect of
the outstanding shares of any other constituent corporation; provided, if the
surviving or resulting Person upon any such merger or consolidation involving an
Affiliate Issuer of Pledged Shares which is a controlled foreign corporation is
a controlled foreign corporation, then such Grantor shall only be required to
pledge outstanding capital stock of such surviving or resulting Person
possessing up to but not exceeding 66% of the voting power of all classes of
capital stock of such issuer entitled to vote; (ii) cause each Affiliate Issuer
of Pledged Shares not to issue any stock, other equity interests or other
securities in addition to or in substitution for the Pledged Shares issued by
such issuer, except to such Grantor; (iii) pledge hereunder, immediately upon
its acquisition (directly or indirectly) thereof, any and all additional shares
of stock, other equity interests or other securities of each issuer of Pledged
Shares; (iv) pledge hereunder, immediately upon its acquisition (directly or
indirectly) thereof, any and all shares of stock or other equity interests of
any Person that, after the date of this Agreement, becomes, as a result of any
occurrence, a direct Subsidiary of such Grantor; provided, notwithstanding
anything contained in this clause (iv) to the contrary, such Grantor shall only
be required to pledge the outstanding capital stock of a controlled foreign
corporation possessing up to but not exceeding 66% of the voting power of all
classes of capital stock of such controlled foreign corporation entitled to
vote; (v) pledge hereunder, immediately upon their issuance, any and all
instruments or other evidences of additional indebtedness from time to time owed
to such Grantor by any obligor on the Pledged Debt; (vi) pledge hereunder,
immediately upon their issuance, any and all instruments or other evidences of
indebtedness from time to time owed to such Grantor by any Person that after the
date of this Agreement becomes, as a result of any occurrence, a direct or
indirect Subsidiary of such Grantor; (vii) promptly notify Secured Party of any
event of which such Grantor becomes aware causing loss or depreciation in the
value of the Securities Collateral; (viii) promptly deliver to Secured Party all
written notices received by it with respect to the Securities Collateral; and
(ix), at the request of Secured Party, promptly execute and deliver to Secured
Party an agreement providing for the control, as that term is defined in the
UCC, by Secured Party of all securities entitlements and securities accounts of
such Grantor.
(c) VOTING AND DISTRIBUTIONS. So long as no Event of Default
shall have occurred and be continuing, (i) each Grantor shall be entitled to
exercise any and all voting and other consensual rights pertaining to the
Securities Collateral or any part thereof for any purpose not inconsistent with
the terms of this Agreement or the Credit Agreement; provided, no Grantor shall
exercise or refrain from exercising any such right if Secured Party shall have
notified such Grantor that, in Secured Party's judgment, such action would have
a material adverse effect on the value of the Securities Collateral or any part
thereof; and provided further, such Grantor shall
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give Secured Party at least five Business Days' prior written notice of the
manner in which it intends to exercise, or the reasons for refraining from
exercising, any such right (it being understood, however, that neither (A) the
voting by such Grantor of any Pledged Shares for or such Grantor's consent to
the election of directors or other members of a governing body of an issuer of
Pledged Shares at a regularly scheduled annual or other meeting of stockholders
or holders of equity interests or with respect to incidental matters at any such
meeting, nor (B) such Grantor's consent to or approval of any action otherwise
permitted under this Agreement and the Credit Agreement shall be deemed
inconsistent with the terms of this Agreement or the Credit Agreement within the
meaning of this Section, and no notice of any such voting or consent need be
given to Secured Party); (ii) each Grantor shall be entitled to receive and
retain, and to utilize free and clear of the lien of this Agreement, any and all
dividends, other distributions and interest paid in respect of the Securities
Collateral; provided, any and all (A) dividends, distributions and interest paid
or payable other than in cash in respect of, and instruments and other property
received, receivable or otherwise distributed in respect of, or in exchange for,
any Securities Collateral, (B) dividends and other distributions paid or payable
in cash in respect of any Securities Collateral in connection with a partial or
total liquidation or dissolution or in connection with a reduction of capital,
capital surplus or paid-in-surplus, and (C) cash paid, payable or otherwise
distributed in respect of principal or in redemption of or in exchange for any
Securities Collateral, shall be, and shall forthwith be delivered to Secured
Party to hold as, Securities Collateral and shall, if received by such Grantor,
be received in trust for the benefit of Secured Party, be segregated from the
other property or funds of such Grantor and be forthwith delivered to Secured
Party as Securities Collateral in the same form as so received (with all
necessary endorsements); and (iii) Secured Party shall promptly execute and
deliver (or cause to be executed and delivered) to such Grantor all such
proxies, dividend payment orders and other instruments as such Grantor may from
time to time reasonably request for the purpose of enabling such Grantor to
exercise the voting and other consensual rights which it is entitled to exercise
pursuant to clause (i) above and to receive the dividends, distributions,
principal or interest payments which it is authorized to receive and retain
pursuant to clause (ii) above.
Upon the occurrence and during the continuation of an Event of
Default, (x) upon written notice from Secured Party to any Grantor, all rights
of such Grantor to exercise the voting and other consensual rights which it
would otherwise be entitled to exercise pursuant hereto shall cease, and all
such rights shall thereupon become vested in Secured Party who shall thereupon
have the sole right to exercise such voting and other consensual rights; (y) all
rights of such Grantor to receive the dividends, other distributions and
interest payments which it would otherwise be authorized to receive and retain
pursuant hereto shall cease, and all such rights shall thereupon become vested
in Secured Party who shall thereupon have the sole right to receive and hold as
Securities Collateral such dividends, other distributions and interest payments;
and (z) all dividends, principal, interest payments and other distributions
which are received by such Grantor contrary to the provisions of clause (ii) of
the immediately preceding paragraph or clause (y) above shall be received in
trust for the benefit of Secured Party, shall be segregated from other funds of
such Grantor and shall forthwith be paid over to Secured Party as Securities
Collateral in the same form as so received (with any necessary endorsements).
In order to permit Secured Party to exercise the voting and
other consensual rights which it may be entitled to exercise pursuant hereto and
to receive all dividends and other distributions which it may be entitled to
receive hereunder, (I) each Grantor shall promptly
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execute and deliver (or cause to be executed and delivered) to Secured Party all
such proxies, dividend payment orders and other instruments as Secured Party may
from time to time reasonably request, and (II) without limiting the effect of
clause (I) above, each Grantor hereby grants to Secured Party an irrevocable
proxy to vote the Pledged Shares and to exercise all other rights, powers,
privileges and remedies to which a holder of the Pledged Shares would be
entitled (including giving or withholding written consents of shareholders or
other holders of equity interests, calling special meetings of shareholders or
other holders of equity interests and voting at such meetings), which proxy
shall be effective, automatically and without the necessity of any action
(including any transfer of any Pledged Shares on the record books of the issuer
thereof) by any other Person (including the issuer of the Pledged Shares or any
officer or agent thereof), upon the occurrence of an Event of Default and which
proxy shall only terminate upon the payment in full of the Secured Obligations.
SECTION 10. SPECIAL COVENANTS WITH RESPECT TO THE INTELLECTUAL
PROPERTY COLLATERAL.
(a) Each Grantor shall:
(i) diligently keep reasonable records respecting the
Intellectual Property Collateral and at all times keep at least one
complete set of its records concerning such Collateral at its chief
executive office or principal place of business;
(ii) use best efforts so as not to permit the inclusion
in any contract to which it hereafter becomes a party of any provision
that could or might in any way impair or prevent the creation of a
security interest in, or the assignment of, such Grantor's rights and
interests in any property included within the definitions of any
Intellectual Property Collateral acquired under such contracts;
(iii) take any and all reasonable steps to protect the
secrecy of all trade secrets relating to the products and services sold
or delivered under or in connection with the Intellectual Property
Collateral, including, without limitation, where appropriate entering
into confidentiality agreements with employees and labeling and
restricting access to secret information and documents;
(iv) use proper statutory notice in connection with its
use of any of the Intellectual Property Collateral;
(v) use a commercially appropriate standard of quality
(which may be consistent with such Grantor's past practices) in the
manufacture, sale and delivery of products and services sold or
delivered under or in connection with the Trademarks; and
(vi) furnish to Secured Party from time to time at
Secured Party's reasonable request statements and schedules further
identifying and describing any Intellectual Property Collateral and such
other reports in connection with such Collateral, all in reasonable
detail.
(b) Except as otherwise provided in this Section 10, each
Grantor shall continue to collect, at its own expense, all amounts due or to
become due to such Grantor in
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respect of the Intellectual Property Collateral or any portion thereof. In
connection with such collections, each Grantor may take (and, after the
occurrence and during the continuance of any Event of Default at Secured Party's
reasonable direction, shall take) such action as such Grantor or Secured Party
may deem reasonably necessary or advisable to enforce collection of such
amounts; provided, Secured Party shall have the right at any time, upon the
occurrence and during the continuation of an Event of Default and upon written
notice to such Grantor of its intention to do so, to notify the obligors with
respect to any such amounts of the existence of the security interest created
hereby and to direct such obligors to make payment of all such amounts directly
to Secured Party, and, upon such notification and at the expense of such
Grantor, to enforce collection of any such amounts and to adjust, settle or
compromise the amount or payment thereof, in the same manner and to the same
extent as such Grantor might have done. After receipt by any Grantor of the
notice from Secured Party referred to in the proviso to the preceding sentence
and during the continuation of any Event of Default, (i) all amounts and
proceeds (including checks and other instruments) received by each Grantor in
respect of amounts due to such Grantor in respect of the Intellectual Property
Collateral or any portion thereof shall be received in trust for the benefit of
Secured Party hereunder, shall be segregated from other funds of such Grantor
and shall be forthwith paid over or delivered to Secured Party in the same form
as so received (with any necessary endorsement) to be held as cash Collateral
and applied as provided by Section 18, and (ii) such Grantor shall not adjust,
settle or compromise the amount or payment of any such amount or release wholly
or partly any obligor with respect thereto or allow any credit or discount
thereon.
(c) Each Grantor shall have the duty diligently, through counsel
reasonably acceptable to Secured Party, to prosecute, file and/or make, unless
and until such Grantor, in its commercially reasonable judgment, decides
otherwise, (i) any application relating to any of the Intellectual Property
Collateral owned, held or used by such Grantor and identified on Schedules
1(f)(i), 1(f)(ii) or 1(f)(iii), as applicable, that is pending as of the date of
this Agreement, (ii) any Copyright Registration on any existing or future
unregistered but copyrightable works (except for works of nominal commercial
value or with respect to which such Grantor has determined in the exercise of
its commercially reasonable judgment that it shall not seek registration), (iii)
application on any future patentable but unpatented innovation or invention
comprising Intellectual Property Collateral, and (iv) any Trademark opposition
and cancellation proceedings, renew Trademark Registrations and Copyright
Registrations and do any and all acts which are necessary or desirable to
preserve and maintain all rights in all Intellectual Property Collateral. Any
expenses incurred in connection therewith shall be borne solely by Grantors.
Subject to the foregoing, each Grantor shall give Secured Party prior written
notice of any abandonment of any Intellectual Property Collateral or any pending
patent application or any Patent.
(d) Except as provided herein, each Grantor shall have the right
to commence and prosecute in its own name, as real party in interest, for its
own benefit and at its own expense, such suits, proceedings or other actions for
infringement, unfair competition, dilution, misappropriation or other damage, or
reexamination or reissue proceedings as are necessary to protect the
Intellectual Property Collateral. Secured Party shall provide, at such Grantor's
expense, all reasonable and necessary cooperation in connection with any such
suit, proceeding or action including, without limitation, joining as a necessary
party. Each Grantor shall promptly, following its becoming aware thereof, notify
Secured Party of the institution of, or of any adverse determination in, any
proceeding (whether in the United States Patent and
XIV-18
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Copyright Office or any federal, state,
local or foreign court) or regarding such Grantor's ownership, right to use, or
interest in any Intellectual Property Collateral. Each Grantor shall provide to
Secured Party any information with respect thereto requested by Secured Party.
(e) In addition to, and not by way of limitation of, the
granting of a security interest in the Collateral pursuant hereto, each Grantor,
effective upon the occurrence and during the continuation of an Event of
Default, hereby assigns, transfers and conveys to Secured Party the nonexclusive
right and license to use all trademarks, tradenames, copyrights, patents or
technical processes (including, without limitation, the Intellectual Property
Collateral) owned or used by such Grantor that relate to the Collateral and any
other collateral granted by such Grantor as security for the Secured
Obligations, together with any goodwill associated therewith, all to the extent
necessary to enable Secured Party to realize on the Collateral in accordance
with this Agreement and to enable any transferee or assignee of the Collateral
to enjoy the benefits of the Collateral. This right shall inure to the benefit
of all successors, assigns and transferees of Secured Party and its successors,
assigns and transferees, whether by voluntary conveyance, operation of law,
assignment, transfer, foreclosure, deed in lieu of foreclosure or otherwise.
Such right and license shall be granted free of charge, without requirement that
any monetary payment whatsoever be made to such Grantor. In addition, each
Grantor hereby grants to Secured Party and its employees, representatives and
agents the right to visit such Grantor's and any of its Affiliate's or
subcontractor's plants, facilities and other places of business that are
utilized in connection with the manufacture, production, inspection, storage or
sale of products and services sold or delivered under any of the Intellectual
Property Collateral (or which were so utilized during the prior six month
period), and to inspect the quality control and all other records relating
thereto upon reasonable advance written notice to such Grantor and at reasonable
dates and times and as often as may be reasonably requested. If and to the
extent that any Grantor is permitted to license the Intellectual Property
Collateral, Secured Party shall promptly enter into a non-disturbance agreement
or other similar arrangement, at such Grantor's request and expense, with such
Grantor and any licensee of any Intellectual Property Collateral permitted
hereunder in form and substance reasonably satisfactory to Secured Party
pursuant to which (i) Secured Party shall agree not to disturb or interfere with
such licensee's rights under its license agreement with such Grantor so long as
such licensee is not in default thereunder, and (ii) such licensee shall
acknowledge and agree that the Intellectual Property Collateral licensed to it
is subject to the security interest created in favor of Secured Party and the
other terms of this Agreement.
SECTION 11. SPECIAL PROVISIONS WITH RESPECT TO THE ASSIGNED
AGREEMENTS.
(a) Each Grantor shall at its expense:
(i) if consistent with sound business practices, perform
and observe all terms and provisions of the Assigned Agreements to be
performed or observed by it, maintain the Assigned Agreements in full
force and effect, enforce the Assigned Agreements in accordance with
their terms, and take all such action to such end as may be from time to
time requested by Secured Party; and
(ii) upon the reasonable request of Secured Party,
furnish to Secured Party, promptly upon receipt thereof, copies of all
notices, requests and other documents
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received by such Grantor under or pursuant to the Assigned Agreements,
and from time to time (A) furnish to Secured Party such information and
reports regarding the Assigned Agreements as Secured Party may
reasonably request and (B) upon request of Secured Party make to the
parties to such Assigned Agreements such demands and requests for
information and reports or for action as such Grantor is entitled to
make under the Assigned Agreements.
(b) Upon the occurrence and during the continuance of an Event
of Default, no Grantor shall:
(i) cancel or terminate any of the Assigned Agreements
or consent to or accept any cancellation or termination thereof;
(ii) amend or otherwise modify the Assigned Agreements
or give any consent, waiver or approval thereunder;
(iii) waive any default under or breach of the Assigned
Agreements;
(iv) consent to or permit or accept any prepayment of
amounts to become due under or in connection with the Assigned
Agreements, except as expressly provided therein; or
(v) take any other action in connection with the
Assigned Agreements that could reasonably be expected to materially
impair the value of the interest or rights of such Grantor thereunder or
that could reasonably be expected to materially impair the interest or
rights of Secured Party.
SECTION 12. COLLATERAL ACCOUNT.
Secured Party is hereby authorized to establish and maintain at
its office at Eleven Madison Avenue, New York, New York as a blocked account in
the name of Company and under the sole dominion and control of Secured Party, a
restricted deposit account designated as "The ▇▇▇▇▇▇▇▇ Group, Inc. Collateral
Account". All amounts at any time held in the Collateral Account shall be
beneficially owned by Grantors but shall be held in the name of Secured Party
hereunder, for the benefit of Lenders, as collateral security for the Secured
Obligations upon the terms and conditions set forth herein. Grantors shall have
no right to withdraw, transfer or, except as expressly set forth herein,
otherwise receive any funds deposited into the Collateral Account. Anything
contained herein to the contrary notwithstanding, the Collateral Account shall
be subject to such applicable laws, and such applicable regulations of the Board
of Governors of the Federal Reserve System and of any other appropriate banking
or Government Authority, as may now or hereafter be in effect. All deposits of
funds in the Collateral Account shall be made by wire transfer (or, if
applicable, by intra-bank transfer from another account of a Grantor) of
immediately available funds, in each case addressed in accordance with
instructions of Secured Party. Each Grantor shall, promptly after initiating a
transfer of funds to the Collateral Account, give notice to Secured Party by
telefacsimile of the date, amount and method of delivery of such deposit. Cash
held by Secured Party in the Collateral Account shall not be invested by Secured
Party but instead shall be maintained as a cash deposit in the Collateral
Account pending application thereof as elsewhere provided in this Agreement. To
the extent
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permitted under Regulation Q of the Board of Governors of the Federal Reserve
System, any cash held in the Collateral Account shall bear interest at the
standard rate paid by Secured Party to its customers for deposits of like
amounts and terms. Subject to Secured Party's rights hereunder, any interest
earned on deposits of cash in the Collateral Account shall be deposited directly
in, and held in the Collateral Account.
SECTION 13. SECURED PARTY APPOINTED ATTORNEY-IN-FACT.
Each Grantor hereby irrevocably appoints Secured Party as such
Grantor's attorney-in-fact, with full authority in the place and stead of such
Grantor and in the name of such Grantor, Secured Party or otherwise, from time
to time in Secured Party's discretion to take any action and to execute any
instrument that Secured Party may deem necessary or advisable to accomplish the
purposes of this Agreement, including without limitation:
(a) upon the occurrence and during the continuance of an Event
of Default, to obtain and adjust insurance required to be maintained by such
Grantor or paid to Secured Party pursuant to Section 7;
(b) upon the occurrence and during the continuance of an Event
of Default, to ask for, demand, collect, ▇▇▇ for, recover, compound, receive and
give acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral;
(c) upon the occurrence and during the continuance of an Event
of Default, to receive, endorse and collect any drafts or other instruments,
documents and chattel paper in connection with clauses (a) and (b) above;
(d) upon the occurrence and during the continuance of an Event
of Default, to file any claims or take any action or institute any proceedings
that Secured Party may deem necessary or desirable for the collection of any of
the Collateral or otherwise to enforce the rights of Secured Party with respect
to any of the Collateral;
(e) to pay or discharge taxes or Liens (other than Liens
permitted under this Agreement or the Credit Agreement) levied or placed upon or
threatened against the Collateral, the legality or validity thereof and the
amounts necessary to discharge the same to be determined by Secured Party in its
sole discretion, any such payments made by Secured Party to become obligations
of such Grantor to Secured Party, due and payable immediately without demand;
(f) upon the occurrence and during the continuance of an Event
of Default, to sign and endorse any invoices, freight or express bills, bills of
lading, storage or warehouse receipts, drafts against debtors, assignments,
verifications and notices in connection with Accounts and other documents
relating to the Collateral; and
(g) upon the occurrence and during the continuance of an Event
of Default, generally to sell, transfer, pledge, make any agreement with respect
to or otherwise deal with any of the Collateral as fully and completely as
though Secured Party were the absolute owner thereof for all purposes, and to
do, at Secured Party's option and Grantors' expense, at any time or from time to
time, all acts and things that Secured Party deems necessary to protect,
preserve
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or realize upon the Collateral and Secured Party's security interest therein in
order to effect the intent of this Agreement, all as fully and effectively as
such Grantor might do.
SECTION 14. SECURED PARTY MAY PERFORM.
If any Grantor fails to perform any agreement contained herein,
Secured Party may itself perform, or cause performance of, such agreement, and
the expenses of Secured Party incurred in connection therewith shall be payable
by Grantors under Section 19(b).
SECTION 15. STANDARD OF CARE.
The powers conferred on Secured Party hereunder are solely to
protect its interest in the Collateral and shall not impose any duty upon it to
exercise any such powers. Except for the exercise of reasonable care in the
custody of any Collateral in its possession and the accounting for moneys
actually received by it hereunder, Secured Party shall have no duty as to any
Collateral or as to the taking of any necessary steps to preserve rights against
prior parties or any other rights pertaining to any Collateral. Secured Party
shall be deemed to have exercised reasonable care in the custody and
preservation of Collateral in its possession if such Collateral is accorded
treatment substantially equal to that which Secured Party accords its own
property.
SECTION 16. REMEDIES.
(a) GENERALLY. If any Event of Default (as defined in the Credit
Agreement) or the occurrence of an Early Termination Date (as defined in a
Master Agreement in the form prepared by the International Swap and Derivatives
Association, Inc. or a similar event under any similar swap agreement) under any
Lender Hedge Agreement (either such occurrence being an "EVENT OF DEFAULT" for
purposes of this Agreement) shall have occurred and be continuing, Secured Party
may exercise in respect of the Collateral, in addition to all other rights and
remedies provided for herein or otherwise available to it, all the rights and
remedies of a secured party on default under the UCC (whether or not the UCC
applies to the affected Collateral), and also may (i) require each Grantor to,
and each Grantor hereby agrees that it will at its expense and upon request of
Secured Party forthwith, assemble all or part of the Collateral as directed by
Secured Party and make it available to Secured Party at a place to be designated
by Secured Party that is reasonably convenient to both parties, (ii) enter onto
the property where any Collateral is located and take possession thereof with or
without judicial process, (iii) prior to the disposition of the Collateral,
store, process, repair or recondition the Collateral or otherwise prepare the
Collateral for disposition in any manner to the extent Secured Party deems
appropriate, (iv) take possession of any Grantor's premises or place custodians
in exclusive control thereof, remain on such premises and use the same and any
of such Grantor's equipment for the purpose of completing any work in process,
taking any actions described in the preceding clause (iii) and collecting any
Secured Obligation, (v) without notice except as specified below, sell the
Collateral or any part thereof in one or more parcels at public or private sale,
at any of Secured Party's offices or elsewhere, for cash, on credit or for
future delivery, at such time or times and at such price or prices and upon such
other terms as Secured Party may deem commercially reasonable, (vi) exercise
dominion and control over and refuse to permit further withdrawals from any
Deposit Account maintained with Secured Party or any Lender constituting a part
of the Collateral, (vii) without notice to any Grantor, transfer to or to
register
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in the name of Secured Party or any of its nominees any or all of the Securities
Collateral, and (viii) without notice to Grantors, exercise dominion and control
over and refuse to permit further withdrawals from any Securities Account,
including, without limitation, issuing any Entitlement Order (as defined in the
Securities Agreements). Secured Party or any Lender or Hedge Provider may be the
purchaser of any or all of the Collateral at any such sale and Secured Party, as
agent for and representative of Lenders and Hedge Providers (but not any Lender
or Hedge Provider in its individual capacity unless Requisite Lenders or
Requisite Obligees (as defined in Section 21(a)) shall otherwise agree in
writing), shall be entitled, for the purpose of bidding and making settlement or
payment of the purchase price for all or any portion of the Collateral sold at
any such public sale, to use and apply any of the Secured Obligations as a
credit on account of the purchase price for any Collateral payable by Secured
Party at such sale. Each purchaser at any such sale shall hold the property sold
absolutely free from any claim or right on the part of any Grantor, and each
Grantor hereby waives (to the extent permitted by applicable law) all rights of
redemption, stay and/or appraisal which it now has or may at any time in the
future have under any rule of law or statute now existing or hereafter enacted.
Each Grantor agrees that, to the extent notice of sale shall be required by law,
at least ten days' notice to such Grantor of the time and place of any public
sale or the time after which any private sale is to be made shall constitute
reasonable notification. Secured Party shall not be obligated to make any sale
of Collateral regardless of notice of sale having been given. Secured Party may
adjourn any public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned. Each Grantor hereby waives any
claims against Secured Party arising by reason of the fact that the price at
which any Collateral may have been sold at such a private sale was less than the
price which might have been obtained at a public sale, even if Secured Party
accepts the first offer received and does not offer such Collateral to more than
one offeree. If the proceeds of any sale or other disposition of the Collateral
are insufficient to pay all the Secured Obligations, Grantors shall be jointly
and severally liable for the deficiency and the fees of any attorneys employed
by Secured Party to collect such deficiency. Each Grantor further agrees that a
breach of any of the covenants contained in this Section will cause irreparable
injury to Secured Party, that Secured Party has no adequate remedy at law in
respect of such breach and, as a consequence, that each and every covenant
contained in this Section shall be specifically enforceable against such
Grantor, and each Grantor hereby waives and agrees not to assert any defenses
against an action for specific performance of such covenants except for a
defense that no default has occurred giving rise to the Secured Obligations
becoming due and payable prior to their stated maturities.
(b) SECURITIES COLLATERAL.
(i) Each Grantor recognizes that, by reason of certain
prohibitions contained in the Securities Act and applicable state
securities laws, Secured Party may be compelled, with respect to any
sale of all or any part of the Securities Collateral conducted without
prior registration or qualification of such Securities Collateral under
the Securities Act and/or such state securities laws, to limit
purchasers to those who will agree, among other things, to acquire the
Securities Collateral for their own account, for investment and not with
a view to the distribution or resale thereof. Each Grantor acknowledges
that any such private sales may be at prices and on terms less favorable
than those obtainable through a public sale without such restrictions
(including a public offering made pursuant to a registration statement
under the Securities Act) and,
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notwithstanding such circumstances and the registration rights granted
to Secured Party by such Grantor pursuant hereto, each Grantor agrees
that any such private sale shall be deemed to have been made in a
commercially reasonable manner and that Secured Party shall have no
obligation to engage in public sales and no obligation to delay the sale
of any Securities Collateral for the period of time necessary to permit
the issuer thereof to register it for a form of public sale requiring
registration under the Securities Act or under applicable state
securities laws, even if such issuer would, or should, agree to so
register it. If Secured Party determines to exercise its right to sell
any or all of the Securities Collateral, upon written request, each
Grantor shall and shall cause each issuer of any Pledged Shares to be
sold hereunder from time to time to furnish to Secured Party all such
information as Secured Party may request in order to determine the
number of shares and other instruments included in the Securities
Collateral which may be sold by Secured Party in exempt transactions
under the Securities Act and the rules and regulations of the Securities
and Exchange Commission thereunder, as the same are from time to time in
effect.
(ii) Without limiting the generality of subsections 10.2
and 10.3 of the Credit Agreement, in the event of any public sale
described herein, each Grantor agrees to indemnify and hold harmless
Secured Party, and each Lender and each Hedge Provider and each of their
respective directors, officers, employees and agents from and against
any loss, fee, cost, expense, damage, liability or claim, joint or
several, to which any such Persons may become subject or for which any
of them may be liable, under the Securities Act or otherwise, insofar as
such losses, fees, costs, expenses, damages, liabilities or claims (or
any litigation commenced or threatened in respect thereof) arise out of
or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, registration
statement, prospectus or other such document published or filed in
connection with such public sale, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will
reimburse Secured Party and such other Persons for any legal or other
expenses reasonably incurred by Secured Party and such other Persons in
connection with any litigation, of any nature whatsoever, commenced or
threatened in respect thereof (including any and all fees, costs and
expenses whatsoever reasonably incurred by Secured Party and such other
Persons and counsel for Secured Party and such other Persons in
investigating, preparing for, defending against or providing evidence,
producing documents or taking any other action in respect of, any such
commenced or threatened litigation or any claims asserted). This
indemnity shall be in addition to any liability which any Grantor may
otherwise have and shall extend upon the same terms and conditions to
each Person, if any, that controls Secured Party or such Persons within
the meaning of the Securities Act.
(c) COLLATERAL ACCOUNT. If an Event of Default has occurred and
is continuing and, in accordance with Section 8 of the Credit Agreement, Company
is required to pay to Secured Party an amount (the "AGGREGATE AVAILABLE AMOUNT")
equal to the maximum amount that may at any time be drawn under all Letters of
Credit then outstanding under the Credit Agreement, Company shall deliver funds
in such an amount for deposit in the Collateral Account. If for any reason the
aggregate amount delivered by Company for deposit in the
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Collateral Account as aforesaid is less than the Aggregate Available Amount, the
aggregate amount so delivered by Company shall be apportioned among all
outstanding Letters of Credit for purposes of this Section in accordance with
the ratio of the maximum amount available for drawing under each such Letter of
Credit (as to such Letter of Credit, the "MAXIMUM AVAILABLE AMOUNT") to the
Aggregate Available Amount. Upon any drawing under any outstanding Letter of
Credit in respect of which Company has deposited in the Collateral Account any
amounts described above, Secured Party shall apply such amounts to reimburse the
Issuing Lender for the amount of such drawing. In the event of cancellation or
expiration of any Letter of Credit in respect of which Company has deposited in
the Collateral Account any amounts described above, or in the event of any
reduction in the Maximum Available Amount under such Letter of Credit, Secured
Party shall apply the amount then on deposit in the Collateral Account in
respect of such Letter of Credit (less, in the case of such a reduction, the
Maximum Available Amount under such Letter of Credit immediately after such
reduction) first, to the payment of any amounts payable to Secured Party
pursuant to Section 18 hereof, second, to the extent of any excess, to the cash
collateralization pursuant to the terms of this Agreement of any outstanding
Letters of Credit in respect of which Company has failed to pay all or a portion
of the amounts described above (such cash collateralization to be apportioned
among all such Letters of Credit in the manner described above), third, to the
extent of any further excess, to the payment of any other outstanding Secured
Obligations in such order as Secured Party shall elect, and fourth, to the
extent of any further excess, to the payment to whomsoever shall be lawfully
entitled to receive such funds.
SECTION 17. ADDITIONAL REMEDIES FOR INTELLECTUAL PROPERTY
COLLATERAL.
(a) Anything contained herein to the contrary notwithstanding,
upon the occurrence and during the continuation of an Event of Default, (i)
Secured Party shall have the right (but not the obligation) to bring suit, in
the name of any Grantor, Secured Party or otherwise, to enforce any Intellectual
Property Collateral, in which event each Grantor shall, at the request of
Secured Party, do any and all lawful acts and execute any and all documents
required by Secured Party in aid of such enforcement and each Grantor shall
promptly, upon demand, reimburse and indemnify Secured Party as provided in
Sections 10.2 and 10.3 of the Credit Agreement and Section 19 hereof, as
applicable, in connection with the exercise of its rights under this Section,
and, to the extent that Secured Party shall elect not to bring suit to enforce
any Intellectual Property Collateral as provided in this Section, each Grantor
agrees to use all reasonable measures, whether by action, suit, proceeding or
otherwise, to prevent the infringement of any of the Intellectual Property
Collateral by others and for that purpose agrees to use its commercially
reasonable judgment in maintaining any action, suit or proceeding against any
Person so infringing reasonably necessary to prevent such infringement; (ii)
upon written demand from Secured Party, each Grantor shall execute and deliver
to Secured Party an assignment or assignments of the Intellectual Property
Collateral and such other documents as are necessary or appropriate to carry out
the intent and purposes of this Agreement; (iii) each Grantor agrees that such
an assignment and/or recording shall be applied to reduce the Secured
Obligations outstanding only to the extent that Secured Party (or any Lender)
receives cash proceeds in respect of the sale of, or other realization upon, the
Intellectual Property Collateral; and (iv) within five Business Days after
written notice from Secured Party, each Grantor shall make available to Secured
Party, to the extent within such Grantor's power and authority, such personnel
in such Grantor's employ on the date of such Event of Default as Secured Party
may
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reasonably designate, by name, title or job responsibility, to permit such
Grantor to continue, directly or indirectly, to produce, advertise and sell the
products and services sold or delivered by such Grantor under or in connection
with the Trademarks, Trademark Registrations and Trademark Rights, such persons
to be available to perform their prior functions on Secured Party's behalf and
to be compensated by Secured Party at such Grantor's expense on a per diem,
pro-rata basis consistent with the salary and benefit structure applicable to
each as of the date of such Event of Default.
(b) If (i) an Event of Default shall have occurred and, by
reason of cure, waiver, modification, amendment or otherwise, no longer be
continuing, (ii) no other Event of Default shall have occurred and be
continuing, (iii) an assignment to Secured Party of any rights, title and
interests in and to the Intellectual Property Collateral shall have been
previously made, and (iv) the Secured Obligations shall not have become
immediately due and payable, upon the written request of any Grantor, Secured
Party shall promptly execute and deliver to such Grantor such assignments as may
be necessary to reassign to such Grantor any such rights, title and interests as
may have been assigned to Secured Party as aforesaid, subject to any disposition
thereof that may have been made by Secured Party; provided, after giving effect
to such reassignment, Secured Party's security interest granted pursuant hereto,
as well as all other rights and remedies of Secured Party granted hereunder,
shall continue to be in full force and effect; and provided further, the rights,
title and interests so reassigned shall be free and clear of all Liens other
than Liens (if any) encumbering such rights, title and interest at the time of
their assignment to Secured Party and Permitted Encumbrances.
SECTION 18. APPLICATION OF PROCEEDS.
Except as expressly provided elsewhere in this Agreement, all
proceeds received by Secured Party in respect of any sale of, collection from,
or other realization by Secured Party upon all or any part of the Collateral
shall be applied as provided in the Credit Agreement.
SECTION 19. INDEMNITY AND EXPENSES.
(a) Grantors jointly and severally agree to indemnify Secured
Party, each Lender and each Hedge Provider from and against any and all claims,
losses and liabilities in any way relating to, growing out of or resulting from
this Agreement and the transactions contemplated hereby (including without
limitation enforcement of this Agreement), except to the extent such claims,
losses or liabilities result solely from Secured Party's or such Lender's or
Hedge Provider's gross negligence or willful misconduct as finally determined by
a court of competent jurisdiction.
(b) Grantors jointly and severally agree to pay to Secured Party
upon demand the amount of any and all costs and expenses, including the
reasonable fees and expenses of its counsel and of any experts and agents, that
Secured Party may incur in connection with (i) the administration of this
Agreement, (ii) the custody, preservation, use or operation of, or the sale of,
collection from, or other realization upon, any of the Collateral, (iii) the
exercise or enforcement of any of the rights of Secured Party hereunder, or (iv)
the failure by any Grantor to perform or observe any of the provisions hereof.
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(c) The obligations of Grantors in this Section 19 shall (i)
survive the termination of this Agreement and the discharge of Grantors' other
obligations under this Agreement, the Lender Hedge Agreements, the Credit
Agreement and the other Loan Documents and (ii), as to any Grantor that is a
party to a Subsidiary Guaranty, be subject to the provisions of Section 1(b)
thereof.
SECTION 20. CONTINUING SECURITY INTEREST; TRANSFER OF LOANS;
TERMINATION AND RELEASE.
(a) This Agreement shall create a continuing security interest
in the Collateral and shall (i) remain in full force and effect until the
payment in full of the Secured Obligations, the cancellation or termination of
the Commitments and the cancellation or expiration of all outstanding Letters of
Credit, (ii) be binding upon Grantors and their respective successors and
assigns, and (iii) inure, together with the rights and remedies of Secured Party
hereunder, to the benefit of Secured Party and its successors, transferees and
assigns. Without limiting the generality of the foregoing clause (iii), (A) but
subject to the provisions of subsection 10.1 of the Credit Agreement, any Lender
may assign or otherwise transfer any Loans held by it to any other Person, and
such other Person shall thereupon become vested with all the benefits in respect
thereof granted to Lenders herein or otherwise and (B) any Hedge Provider may
assign or otherwise transfer any Lender Hedge Agreement to which it is a party
to any other Person in accordance with the terms of such Lender Hedge Agreement,
and such other Person shall thereupon become vested with all the benefits in
respect thereof granted to Hedge Providers herein or otherwise.
(b) Upon the payment in full of all Secured Obligations, the
cancellation or termination of the Commitments and the cancellation or
expiration of all outstanding Letters of Credit, the security interest granted
hereby shall terminate and all rights to the Collateral shall revert to the
applicable Grantors. Upon any such termination Secured Party will, at Grantors'
expense, execute and deliver to Grantors such documents as Grantors shall
reasonably request to evidence such termination. In addition, upon the proposed
sale, transfer or other disposition of any Collateral by a Grantor in accordance
with the Credit Agreement for which such Grantor desires to obtain a security
interest release from Secured Party, such Grantor shall deliver an Officer's
Certificate (x) stating that the Collateral subject to such disposition is being
sold, transferred or otherwise disposed of in compliance with the terms of the
Credit Agreement and (y) specifying the Collateral being sold, transferred or
otherwise disposed of in the proposed transaction. Upon the receipt of such
Officer's Certificate, Secured Party shall, at such Grantor's expense, so long
as Secured Party has no reason to believe that the Officer's Certificate
delivered by such Grantor with respect to such sale is not true and correct,
execute and deliver such releases of its security interest in such Collateral
which is to be so sold, transferred or disposed of, as may be reasonably
requested by such Grantor.
SECTION 21. SECURED PARTY AS AGENT.
(a) Secured Party has been appointed to act as Secured Party
hereunder by Lenders and, by their acceptance of the benefits hereof, Hedge
Providers. Secured Party shall be obligated, and shall have the right hereunder,
to make demands, to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking any action (including
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without limitation the release or substitution of Collateral), solely in
accordance with this Agreement and the Credit Agreement; provided that Secured
Party shall exercise, or refrain from exercising, any remedies provided for in
Section 16 in accordance with the instructions of (i) Requisite Lenders or (ii)
after payment in full of all Obligations under the Credit Agreement and the
other Loan Documents, the cancellation or expiration of all Letters of Credit
and the termination of the Commitments, (A) the holders of a majority of the
aggregate notional amount under all Lender Hedge Agreements (including Lender
Hedge Agreements that have been terminated) or (B) if all Lender Hedge
Agreements have been terminated in accordance with their terms, the aggregate
amount then due and payable (exclusive of expenses and similar payments but
including any early termination payments then due) under such Lender Hedge
Agreements (Requisite Lenders or, if applicable, such holders being referred to
herein as "REQUISITE OBLIGEES"). In furtherance of the foregoing provisions of
this Section 21(a), each Hedge Provider, by its acceptance of the benefits
hereof, agrees that it shall have no right individually to realize upon any of
the Collateral hereunder, it being understood and agreed by such Hedge Provider
that all rights and remedies hereunder may be exercised solely by Secured Party
for the benefit of Lenders and Hedge Providers in accordance with the terms of
this Section 21(a).
(b) Secured Party shall at all times be the same Person that is
Administrative Agent under the Credit Agreement. Written notice of resignation
by Administrative Agent pursuant to subsection 9.5 of the Credit Agreement shall
also constitute notice of resignation as Secured Party under this Agreement; and
appointment of a successor Administrative Agent pursuant to subsection 9.5 of
the Credit Agreement shall also constitute appointment of a successor Secured
Party under this Agreement. Upon the acceptance of any appointment as
Administrative Agent under subsection 9.5 of the Credit Agreement by a successor
Administrative Agent, that successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Secured Party under this Agreement, and the retiring Secured
Party under this Agreement shall promptly (i) transfer to such successor Secured
Party all sums, securities and other items of Collateral held hereunder,
together with all records and other documents necessary or appropriate in
connection with the performance of the duties of the successor Secured Party
under this Agreement, and (ii) execute and deliver to such successor Secured
Party such amendments to financing statements, and take such other actions, as
may be necessary or appropriate in connection with the assignment to such
successor Secured Party of the security interests created hereunder, whereupon
such retiring Secured Party shall be discharged from its duties and obligations
under this Agreement. After any retiring Administrative Agent's resignation
hereunder as Secured Party, the provisions of this Agreement shall inure to its
benefit as to any actions taken or omitted to be taken by it under this
Agreement while it was Secured Party hereunder.
(c) Secured Party shall not be deemed to have any duty
whatsoever with respect to any Hedge Provider until it shall have received
written notice in form and substance satisfactory to Secured Party from a
Grantor or the Hedge Provider as to the existence and terms of the applicable
Lender Hedge Agreement.
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SECTION 22. ADDITIONAL GRANTORS.
The initial Subsidiary Grantors hereunder shall be such of the
Subsidiaries of Company as are signatories hereto on the date hereof. From time
to time subsequent to the date hereof, additional Subsidiaries of Company may
become parties hereto as additional Grantors (each an "ADDITIONAL GRANTOR"), by
executing a Counterpart substantially in the form of Exhibit VI annexed hereto.
Upon delivery of any such Counterpart to Secured Party, notice of which is
hereby waived by Grantors, each such Additional Grantor shall be a Grantor and
shall be as fully a party hereto as if such Additional Grantor were an original
signatory hereto. Each Grantor expressly agrees that its obligations arising
hereunder shall not be affected or diminished by the addition or release of any
other Grantor hereunder, nor by any election of Administrative Agent not to
cause any Subsidiary of Company to become an Additional Grantor hereunder. This
Agreement shall be fully effective as to any Grantor that is or becomes a party
hereto regardless of whether any other Person becomes or fails to become or
ceases to be a Grantor hereunder.
SECTION 23. AMENDMENTS; ETC.
No amendment, modification, termination or waiver of any
provision of this Agreement, and no consent to any departure by any Grantor
therefrom, shall in any event be effective unless the same shall be in writing
and signed by Secured Party and, in the case of any such amendment or
modification, by Grantors; provided this Agreement may be modified by the
execution of a Counterpart by an Additional Grantor in accordance with Section
22 and Grantors hereby waive any requirement of notice of or consent to any such
amendment. Any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given.
SECTION 24. NOTICES.
Any notice or other communication herein required or permitted
to be given shall be in writing and may be personally served or sent by
telefacsimile or United States mail or courier service and shall be deemed to
have been given when delivered in person or by courier service, upon receipt of
telefacsimile, or three Business Days after depositing it in the United States
mail with postage prepaid and properly addressed; provided that notices to
Secured Party shall not be effective until received. For the purposes hereof,
the address of each party hereto shall be as provided in subsection 10.8 of the
Credit Agreement or as set forth under such party's name on the signature pages
hereof or such other address as shall be designated by such party in a written
notice delivered to the other parties hereto.
SECTION 25. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES
CUMULATIVE.
No failure or delay on the part of Secured Party in the exercise
of any power, right or privilege hereunder shall impair such power, right or
privilege or be construed to be a waiver of any default or acquiescence therein,
nor shall any single or partial exercise of any such power, right or privilege
preclude any other or further exercise thereof or of any other power, right or
privilege. All rights and remedies existing under this Agreement are cumulative
to, and not exclusive of, any rights or remedies otherwise available.
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SECTION 26. SEVERABILITY.
In case any provision in or obligation under this Agreement
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
SECTION 27. HEADINGS.
Section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
SECTION 28. GOVERNING LAW; TERMS; RULES OF CONSTRUCTION.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT
THE UCC PROVIDES THAT THE PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR
REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE
LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. Unless otherwise
defined herein or in the Credit Agreement, terms used in Articles 8 and 9 of the
Uniform Commercial Code in the State of New York are used herein as therein
defined. The rules of construction set forth in subsection 1.3 of the Credit
Agreement shall be applicable to this Agreement mutatis mutandis.
SECTION 29. CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY GRANTOR ARISING OUT
OF OR RELATING TO THIS AGREEMENT, OR ANY OBLIGATIONS HEREUNDER, MAY BE BROUGHT
IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE , COUNTY
AND CITY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH GRANTOR,
FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (I) ACCEPTS
GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH
COURTS; (II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (III) AGREES THAT
SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO SUCH GRANTOR AT ITS
ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 24; (IV) AGREES THAT SERVICE AS
PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION
OVER SUCH GRANTOR IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE
CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; (V) AGREES THAT
SECURED PARTY RETAINS THE RIGHT TO
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SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS
AGAINST SUCH GRANTOR IN THE COURTS OF ANY OTHER JURISDICTION; AND (VI) AGREES
THAT THE PROVISIONS OF THIS SECTION 29 RELATING TO JURISDICTION AND VENUE SHALL
BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER NEW YORK
GENERAL OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.
SECTION 30. WAIVER OF JURY TRIAL.
GRANTORS AND SECURED PARTY HEREBY AGREE TO WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT. The scope of this waiver is intended to be
all-encompassing of any and all disputes that may be filed in any court and that
relate to the subject matter of this transaction, including without limitation
contract claims, tort claims, breach of duty claims, and all other common law
and statutory claims. Each Grantor and Secured Party acknowledge that this
waiver is a material inducement for Grantors and Secured Party to enter into a
business relationship, that Grantors and Secured Party have already relied on
this waiver in entering into this Agreement and that each will continue to rely
on this waiver in their related future dealings. Each Grantor and Secured Party
further warrant and represent that each has reviewed this waiver with its legal
counsel, and that each knowingly and voluntarily waives its jury trial rights
following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL
WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 30 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. In the event of
litigation, this Agreement may be filed as a written consent to a trial by the
court.
SECTION 31. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and
by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
SECTION 32. FCC MATTERS.
(a) Notwithstanding anything to the contrary contained in this
Agreement or any other Loan Document, Secured Party will not take any action
pursuant to this Agreement or any other Loan Document that would constitute or
result in any assignment of an FCC License or any transfer of control of any
Grantor or any Station if such assignment of license or transfer of control
would require under then existing applicable law, the prior approval of the FCC,
without first obtaining such approval of the FCC.
(b) Secured Party and each Grantor agree that notwithstanding
anything in this Agreement or in any other Loan Document to the contrary, (i)
voting rights and management
XIV-31
221
rights with respect to the Collateral will remain with the applicable Grantor
upon and following the occurrence of an Event of Default unless any required
prior approvals of the FCC to the transfer of such rights to Secured Party, a
receiver or their respective designees shall have been obtained, and (ii) prior
to the exercise of voting rights by any purchaser at any sale of the Collateral
following the occurrence of an Event of Default and foreclosure upon the
Collateral by Secured Party, any prior required consent of the FCC will be
obtained.
(c) Each Grantor agrees to take any actions that Secured Party
may reasonably request in writing in order to enable Secured Party to obtain and
enjoy the full rights and benefits granted by this Agreement and any of the
related documents, including, without limitation, the use of each Grantor's best
efforts, consistent with the rules, regulations and policies of the FCC
(collectively, the "FCC REGULATIONS"), to obtain the approval of the FCC for any
action or transaction relating to any FCC License for which such FCC action is
then required or prudent. Such obligation to take any and all of the action
required to be taken pursuant to the immediately preceding sentence shall
specifically include the preparation, signing and filing, or causing to be
prepared, signed and filed, with the FCC the assignor's, transferor's or
controlling person's application or applications for consent to the assignment
of FCC Licenses or transfer of control thereof necessary or appropriate under
FCC Regulations for approval of (i) any sale or transfer to Secured Party or a
receiver or their respective designees of all or part of the equity interests in
any Grantor or the assets and FCC Licenses of any Grantor, and (ii) any
assumption by Secured Party or a receiver or any of their respective designees
of voting and management rights relating to the equity interests in any Grantor.
No Grantor shall take action to obstruct, impede or infringe upon Secured
Party's exercise and enforcement of its rights, benefits and remedies under this
Agreement and any agreement related hereto, and each Grantor agrees to cooperate
fully with any and all actions taken by Secured Party in good faith pursuant to
this Agreement, including, without limitation, the full and complete cooperation
and assistance in all proceedings, correspondence and other communications
before or with the FCC or in connection with obtaining the approvals referred to
above. Each Grantor acknowledges that the foregoing provisions are, inter alia,
intended to ensure that, until the Loans have been indefeasibly paid in full and
upon the occurrence and during the continuance of an Event of Default, Secured
Party receive, to the fullest extent permitted by applicable law and
governmental policy (including, without limitation, FCC Regulations), all rights
necessary to sell the assets of the Stations including the FCC Licenses, and to
exercise all remedies available to them under this Agreement and the other Loan
Documents, the UCC or other applicable law. Each Grantor further acknowledges
and agrees that, in the event of changes in law or governmental policy occurring
subsequent to the date hereof that effect in any manner Secured Party's rights
of access to, security interest in, or use or sale of, the FCC Licenses, or the
procedures necessary to enable Secured Party to obtain such rights of access,
use or sale, the parties hereto shall amend this Agreement and the other Loan
Documents in such manner as Secured Party shall reasonably request, in order to
provide such rights to the greatest extent possible, consistent with
then-applicable law and governmental policy, provided that such modifications do
not materially adversely affect the substantive economic rights of any other
party hereto.
(d) Without limiting the generality of the foregoing or limiting
in any way the rights of Secured Party under the Loan Documents or otherwise
under applicable law, at any time after (i) the entire principal balance of any
Loan shall have become due and payable (whether at maturity, by acceleration or
otherwise) and (ii) Secured Party shall have provided to
XIV-32
222
Grantors not less than thirty (30) days' prior written notice, Secured Party
shall be entitled to apply for and have a receiver, trustee or similar official
appointed under the state or federal law by a court of competent jurisdiction in
any action taken by Secured Party to enforce Secured Party's rights and remedies
hereunder and under the other Loan Documents in order to manage, protect,
preserve, sell and otherwise dispose of all or any portion of the Collateral and
continue the operation of the business of Grantors, to seek from the FCC an
involuntary assignment or transfer of control of each FCC License from Grantors
to Secured Party, its designee or any transferee, and to collect all revenues
and profits thereof and apply the same to the payment of all expenses and other
charges of such receivership or trusteeship, including the compensation of the
receiver, trustee or similar official, and to the payment of the Loans and other
fees and expenses due under the Credit Agreement and under the other Loan
Documents as aforesaid until a sale or other disposition of such Collateral
shall be finally made and consummated. Each Grantor agrees to authorize any
involuntary assignment or transfer of control of the FCC Licenses upon the
request of the receiver, trustee or other official so appointed and, if Grantors
refuse to authorize such transfer, Grantors' approval may be ordered or required
by a court of competent jurisdiction. Such receiver, trustee or other appointed
official shall also have the power to dispose of the FCC Licenses in any manner
lawful in the jurisdiction in which his appointment is confirmed, including the
power to conduct a public or private sale of the FCC Licenses, such sale being
subject to the prior approval of the FCC as set forth herein.
(e) EACH GRANTOR HEREBY IRREVOCABLY CONSENTS TO AND WAIVES ANY
RIGHT TO OBJECT TO OR OTHERWISE CONTEST THE APPOINTMENT OF A RECEIVER, TRUSTEE
OR SIMILAR OFFICIAL AS PROVIDED ABOVE, OR TO PREVENT SECURED PARTY OR ANY
RECEIVER, TRUSTEE OR SIMILAR OFFICIAL TO SEEK FROM THE FCC AN INVOLUNTARY
TRANSFER OF THE FCC LICENSES. EACH GRANTOR (I) GRANTS SUCH WAIVER AND CONSENTS
KNOWINGLY AFTER HAVING DISCUSSED THE IMPLICATIONS THEREOF WITH COUNSEL, (II)
ACKNOWLEDGES THAT (A) THE UNCONTESTED RIGHT TO HAVE A RECEIVER, TRUSTEE OR
SIMILAR OFFICIAL APPOINTED FOR THE FOREGOING PURPOSES, AND/OR TO SEEK FROM THE
FCC AN INVOLUNTARY TRANSFER OF THE FCC LICENSES IS CONSIDERED ESSENTIAL BY
SECURED PARTY IN CONNECTION WITH THE ENFORCEMENT OF SECURED PARTY'S RIGHTS AND
REMEDIES HEREUNDER AND UNDER THE OTHER LOAN DOCUMENTS, AND (B) THE AVAILABILITY
OF SUCH REMEDIES UNDER THE FOREGOING CIRCUMSTANCES WAS A MATERIAL FACTOR IN
INDUCING SECURED PARTY AND LENDERS TO MAKE THE LOANS TO COMPANY AND HEDGE
PROVIDERS TO ENTER INTO THE LENDER HEDGE AGREEMENTS; AND (III) AGREES TO ENTER
INTO ANY AND ALL STIPULATIONS IN ANY LEGAL ACTIONS, OR AGREEMENTS OR OTHER
INSTRUMENTS IN CONNECTION WITH THE FOREGOING AND TO COOPERATE FULLY WITH SECURED
PARTY IN CONNECTION WITH THE ASSUMPTION AND EXERCISE OF CONTROL BY THE RECEIVER,
TRUSTEE OR SIMILAR OFFICIAL OVER ALL OR ANY PORTION OF THE COLLATERAL. SECURED
PARTY ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS SECTION 32 SHALL BE DEEMED TO
CONSTITUTE A WAIVER OF ANY GRANTOR'S RIGHT TO FILE FOR PROTECTION UNDER THE
BANKRUPTCY CODE AT ANY TIME PRIOR TO THE APPOINTMENT OF A RECEIVER, TRUSTEE OR
SIMILAR OFFICIAL.
XIV-33
223
(f) Notwithstanding anything to the contrary contained in this
Agreement or any other Loan Document, references to "Secured Party" and
"Administrative Agent" shall include any trustee or other fiduciary acting in
lieu of Secured Party or Administrative Agent in order to ensure compliance with
the Communications Act or other applicable law.
SECTION 33. SECURITIES ACCOUNTS.
(a) Within five (5) Business Days after Borrower has delivered
evidence reasonably satisfactory to Administrative Agent that Borrower has paid
Borrower's October, 2001 and December, 2001 installments of income taxes related
to the sale of certain assets, including the Seattle Supersonics, Administrative
Agent shall deliver to the securities intermediaries that are signatories to the
Securities Agreements a written authorization to disburse to Borrower an amount
equal to the positive balance, if any, of (i) $45,000,000 minus (ii) the amounts
disbursed from the Securities Account for payment of Borrower's October, 2001
and December, 2001 installments of income taxes in accordance with the terms of
the Securities Agreements.
(b) Within five (5) Business Days after Borrower has delivered
evidence reasonably satisfactory to Administrative Agent that Borrower has paid
Borrower's January, 2002 installment of interest with respect to Borrower's
9.00% Senior Subordinated Notes due 2009 (and Borrower's October, 2001 and
December, 2001 installments of income taxes related to the sale of certain
assets, including the Seattle Supersonics, to the extent not previously
delivered), Administrative Agent shall deliver to the securities intermediaries
that are signatories to the Securities Agreements a Termination Notice (as such
term is defined in the Securities Agreements).
[Remainder of page intentionally left blank]
XIV-34
224
IN WITNESS WHEREOF, Grantors and Secured Party have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
THE ▇▇▇▇▇▇▇▇ GROUP, INC.
By:
---------------------------------
Title:
------------------------------
EACH OF THE ENTITIES LISTED ON SCHEDULE A ANNEXED HERETO
By:
---------------------------------
on behalf of each of the entities listed on Schedule A annexed hereto
Name:
-------------------------------
Title:
------------------------------
CREDIT SUISSE FIRST BOSTON,
as Secured Party
By:
---------------------------------
Title:
------------------------------
S-1
225
Schedule A
Name Notice Address for each Subsidiary Grantor
---- ------------------------------------------
A-1
226
SCHEDULE 1(e)(i) TO
SECURITY AGREEMENT
--------------------------------------------------------------------------------------------
CLASS
OF STOCK OR STOCK PERCENTAGE OF
EQUITY CERTIFICATE PAR NUMBER OF OUTSTANDING
STOCK ISSUER INTEREST NOS. VALUE SHARES SHARES PLEDGED
============================================================================================
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
1(e)(i)-1
227
SCHEDULE 1(e)(ii) TO
SECURITY AGREEMENT
--------------------------------------------------------------------------------
AMOUNT OF
DEBT ISSUER INDEBTEDNESS
================================================================================
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
1(e)(ii)-1
228
SCHEDULE 1(f)(i) TO
SECURITY AGREEMENT
U.S. TRADEMARKS:
Registered Trademark Registration Registration
Owner Description Number Date
---------------------- ------------- -------------- --------------
FOREIGN TRADEMARKS:
Registered Trademark Registration Registration
Owner Description Number Date
---------------------- ------------- -------------- --------------
1(f)(i)-1
229
SCHEDULE 1(f)(ii) TO
SECURITY AGREEMENT
U.S. PATENTS ISSUED:
Patent No. Issue Date Invention Inventor
---------- ---------- --------- --------
U.S. PATENTS PENDING:
Applicant's Date Application
Name Filed Number Invention Inventor
----------- ----- ----------- --------- --------
FOREIGN PATENTS ISSUED:
Patent No. Issue Date Invention Inventor
---------- ---------- --------- --------
1(f)(ii)-1
230
FOREIGN PATENTS PENDING:
Applicant's Date Application
Name Filed Number Invention Inventor
------------------ -------- ------------- -------------- ------------
1(f)(ii)-2
231
SCHEDULE 1(f)(iii) TO
SECURITY AGREEMENT
U.S. COPYRIGHTS:
Registration Date of Registered
Title No. Issue Owner
------------------------- -------------- ---------- ------------
FOREIGN COPYRIGHT REGISTRATIONS:
Registration Date of
Country Title No. Issue
------------------------ ------------- -------------- -------------
PENDING U.S. COPYRIGHT REGISTRATIONS & APPLICATIONS:
Reference Date of Copyright
Title No. Application Claimant
------------------------ ------------- ------------ ---------------
PENDING FOREIGN COPYRIGHT REGISTRATIONS & APPLICATIONS:
Registration Date of
Country Title No. Issue
------------------------ --------------- -------------- -----------
1(f)(iii)-1
232
SCHEDULE 1(h) TO
SECURITY AGREEMENT
Assigned Agreements
1(m)-1
233
SCHEDULE 4(b)
TO
SECURITY AGREEMENT
Locations of Equipment and Inventory
NAME OF GRANTOR LOCATIONS OF EQUIPMENT AND INVENTORY
--------------- ------------------------------------
4(b)-1
234
SCHEDULE 4(d)
TO
SECURITY AGREEMENT
Office Locations, Type and Jurisdiction of Organization
JURISDICTION
NAME OF TYPE OF OFFICE OF ORGANIZATION
GRANTOR ORGANIZATION LOCATIONS ORGANIZATION NUMBER
----------------- --------------- --------------- --------------- -------------------
4(d)-1
235
SCHEDULE 4(e)
TO
SECURITY AGREEMENT
Other Names
Name of Grantor Other Names
--------------- -----------
4(e)-1
236
SCHEDULE 4(i)
TO
SECURITY AGREEMENT
Filing Offices
Grantor Filing Offices
------- --------------
4(i)-1
237
EXHIBIT I TO
SECURITY AGREEMENT
FORM OF GRANT OF TRADEMARK SECURITY INTEREST
WHEREAS, [NAME OF GRANTOR], a ___________ corporation
("GRANTOR"), owns and uses in its business, and will in the future adopt and so
use, various intangible assets, including the Trademark Collateral (as defined
below); and
WHEREAS, The ▇▇▇▇▇▇▇▇ Group, Inc., a Delaware corporation
("COMPANY"), has entered into a Credit Agreement dated as of September __, 2001
(said Credit Agreement, as it may heretofore have been and as it may hereafter
be amended, supplemented, restated or otherwise modified from time to time,
being the "CREDIT AGREEMENT") with the financial institutions named therein
(collectively, together with their respective successors and assigns party to
the Credit Agreement from time to time, the "LENDERS"), and Credit Suisse First
Boston, as Administrative Agent for the Lenders (in such capacity, "SECURED
PARTY") pursuant to which Lenders have made certain commitments, subject to the
terms and conditions set forth in the Credit Agreement, to extend certain credit
facilities to Company; and
WHEREAS, Company may from time to time enter, or may from time to
time have entered, into one or more Hedge Agreements (collectively, the "LENDER
HEDGE AGREEMENTS") with one or more Persons that are Lenders or Affiliates of
Lenders at the time such Lender Hedge Agreements are entered into (in such
capacity, collectively, "HEDGE PROVIDERS"); and
[Insert if Grantor is a Subsidiary:] [WHEREAS, Grantor has
executed and delivered that certain Subsidiary Guaranty dated as of September
__, 2001 (said Subsidiary Guaranty, as it may hereafter be amended, supplemented
or otherwise modified from time to time, being the "GUARANTY") in favor of
Secured Party for the benefit of Lenders and any Hedge Providers, pursuant to
which Grantor has guarantied the prompt payment and performance when due of all
obligations of Company under the Credit Agreement and the other Loan Documents
and all obligations of Company under the Lender Hedge Agreements, including
without limitation the obligation of Company to make payments thereunder in the
event of early termination thereof; and]
WHEREAS, pursuant to the terms of a Security Agreement dated as
of September __, 2001 (as amended, supplemented, restated or otherwise modified
from time to time, the "SECURITY AGREEMENT"), among Grantor, Secured Party and
the other grantors named therein, Grantor has agreed to create in favor of
Secured Party a secured and protected interest in, and Secured Party has agreed
to become a secured creditor with respect to, the Trademark Collateral;
NOW, THEREFORE, for good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, subject to the terms and
conditions of the Security Agreement, Grantor hereby grants to Secured Party a
security interest in all of Grantor's right, title and interest in and to the
following, in each case whether now or hereafter existing or in
I-1
238
which Grantor now has or hereafter acquires an interest and wherever the same
may be located (the "TRADEMARK COLLATERAL"):
(i) all rights, title and interest (including rights acquired
pursuant to a license or otherwise but only to the extent permitted by
agreements governing such license or other use) in and to all
trademarks, service marks, designs, logos, indicia, tradenames, trade
dress, corporate names, company names, business names, fictitious
business names, trade styles and/or other source and/or business
identifiers and applications pertaining thereto, owned by such Grantor,
or hereafter adopted and used, in its business (including, without
limitation, the trademarks specifically identified in Schedule A)
(collectively, the "TRADEMARKS"), all registrations that have been or
may hereafter be issued or applied for thereon in the United States and
any state thereof and in foreign countries (including, without
limitation, the registrations and applications specifically identified
in Schedule A) (the "TRADEMARK REGISTRATIONS"), all common law and other
rights (but in no event any of the obligations) in and to the Trademarks
in the United States and any state thereof and in foreign countries (the
"TRADEMARK RIGHTS"), and all goodwill of such Grantor's business
symbolized by the Trademarks and associated therewith (the "ASSOCIATED
GOODWILL"); and
(ii) all proceeds, products, rents and profits of or from any and
all of the foregoing Trademark Collateral and, to the extent not
otherwise included, all payments under insurance (whether or not Secured
Party is the loss payee thereof), or any indemnity, warranty or
guaranty, payable by reason of loss or damage to or otherwise with
respect to any of the foregoing Trademark Collateral. For purposes of
this Grant of Trademark Security Interest, the term "PROCEEDS" includes
whatever is receivable or received when Trademark Collateral or proceeds
are sold, exchanged, collected or otherwise disposed of, whether such
disposition is voluntary or involuntary.
Grantor does hereby further acknowledge and affirm that the
rights and remedies of Secured Party with respect to the security interest in
the Trademark Collateral granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
[The remainder of this page is intentionally left blank.]
I-2
239
IN WITNESS WHEREOF, Grantor has caused this Grant of Trademark
Security Interest to be duly executed and delivered by its officer thereunto
duly authorized as of the __ day of August, 2001.
[NAME OF GRANTOR]
By:
-----------------------------
Title:
-----------------------------
I-3
240
SCHEDULE A
TO
GRANT OF TRADEMARK SECURITY INTEREST
U.S. TRADEMARKS:
Registered Trademark Registration Registration
Owner Description Number Date
---------------------- -------------------- -------------------- --------------------
FOREIGN TRADEMARKS:
Registered Trademark Registration Registration
Owner Description Number Date
---------------------- -------------------- -------------------- --------------------
A-1
241
EXHIBIT II TO
SECURITY AGREEMENT
FORM OF GRANT OF PATENT SECURITY INTEREST
WHEREAS, [NAME OF GRANTOR], a ___________ corporation
("GRANTOR"), owns and uses in its business, and will in the future adopt and so
use, various intangible assets, including the Patent Collateral (as defined
below); and
WHEREAS, The ▇▇▇▇▇▇▇▇ Group, Inc., a Delaware corporation
("COMPANY"), has entered into a Credit Agreement dated as of September __, 2001
(said Credit Agreement, as it may heretofore have been and as it may hereafter
be amended, supplemented or otherwise modified from time to time, being the
"CREDIT AGREEMENT") with the financial institutions named therein (collectively,
together with their respective successors and assigns party to the Credit
Agreement from time to time, the "LENDERS"), and Credit Suisse First Boston, as
Administrative Agent for the Lenders (in such capacity, "SECURED PARTY"),
pursuant to which Lenders have made certain commitments, subject to the terms
and conditions set forth in the Credit Agreement, to extend certain credit
facilities to Company; and
WHEREAS, Company may from time to time enter, or may from time to
time have entered, into one or more Hedge Agreements (collectively, the "LENDER
HEDGE AGREEMENTS") with one or more Persons that are Lenders or Affiliates of
Lenders at the time such Lender Hedge Agreements are entered into (in such
capacity, collectively, "HEDGE PROVIDERS"); and
[Insert if Grantor is a Subsidiary:] [WHEREAS, Grantor has
executed and delivered that certain Subsidiary Guaranty dated as of September
__, 2001 (said Subsidiary Guaranty, as it may hereafter be amended, supplemented
or otherwise modified from time to time, being the "GUARANTY") in favor of
Secured Party for the benefit of Lenders and any Hedge Providers, pursuant to
which Grantor has guarantied the prompt payment and performance when due of all
obligations of Company under the Credit Agreement and the other Loan Documents
and all obligations of Company under the Lender Hedge Agreements, including
without limitation the obligation of Company to make payments thereunder in the
event of early termination thereof; and]
WHEREAS, pursuant to the terms of a Security Agreement dated as
of September __, 2001 (as amended, supplemented, restated or otherwise modified
from time to time, the "SECURITY AGREEMENT"), among Grantor, Secured Party and
the other grantors named therein, Grantor has agreed to create in favor of
Secured Party a secured and protected interest in, and Secured Party has agreed
to become a secured creditor with respect to, the Patent Collateral;
NOW, THEREFORE, for good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, subject to the terms and
conditions of the Security Agreement, Grantor hereby grants to Secured Party a
security interest in all of Grantor's right, title and interest in and to the
following, in each case whether now or hereafter existing or in which Grantor
now has or hereafter acquires an interest and wherever the same may be located
(the "PATENT COLLATERAL"):
II-1
242
(i) all rights, title and interest (including rights acquired
pursuant to a license or otherwise but only to the extent permitted by
agreements governing such license or other use) in and to all patents
and patent applications and rights and interests in patents and patent
applications under any domestic or foreign law that are presently, or in
the future may be, owned or held by such Grantor and all patents and
patent applications and rights, title and interests in patents and
patent applications under any domestic or foreign law that are
presently, or in the future may be, owned by such Grantor in whole or in
part (including, without limitation, the patents and patent applications
listed in Schedule A), all rights (but not obligations) corresponding
thereto to ▇▇▇ for past, present and future infringements and all
re-issues, divisions, continuations, renewals, extensions and
continuations-in-part thereof (all of the foregoing being collectively
referred to as the "PATENTS"); and
(ii) all proceeds, products, rents and profits of or from any and
all of the foregoing Patent Collateral and, to the extent not otherwise
included, all payments under insurance (whether or not Secured Party is
the loss payee thereof), or any indemnity, warranty or guaranty, payable
by reason of loss or damage to or otherwise with respect to any of the
foregoing Patent Collateral. For purposes of this Grant of Patent
Security Interest, the term "PROCEEDS" includes whatever is receivable
or received when Patent Collateral or proceeds are sold, exchanged,
collected or otherwise disposed of, whether such disposition is
voluntary or involuntary.
Grantor does hereby further acknowledge and affirm that the
rights and remedies of Secured Party with respect to the security interest in
the Patent Collateral granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
[The remainder of this page intentionally left blank.]
II-2
243
IN WITNESS WHEREOF, Grantor has caused this Grant of Patent
Security Interest to be duly executed and delivered by its officer thereunto
duly authorized as of the ___ day of August, 2001.
[NAME OF GRANTOR]
By:
-----------------------------
Title:
-----------------------------
S-1
244
SCHEDULE A
TO
GRANT OF PATENT SECURITY INTEREST
PATENTS ISSUED:
Patent No. Issue Date Invention Inventor
---------- ---------- --------- --------
PATENTS PENDING:
Applicant's Date Application
Name Filed Number Invention Inventor
----------- ----- ----------- --------- --------
A-1
245
EXHIBIT III TO
SECURITY AGREEMENT
FORM OF GRANT OF COPYRIGHT SECURITY INTEREST
WHEREAS, [NAME OF GRANTOR], a ___________ corporation
("GRANTOR"), owns and uses in its business, and will in the future adopt and so
use, various intangible assets, including the Copyright Collateral (as defined
below); and
WHEREAS, The ▇▇▇▇▇▇▇▇ Group, Inc., a Delaware corporation
("COMPANY"), has entered into a Credit Agreement dated as of September __, 2001
(said Credit Agreement, as it may heretofore have been and as it may hereafter
be amended, supplemented or otherwise modified from time to time, being the
"CREDIT AGREEMENT") with the financial institutions named therein (collectively,
together with their respective successors and assigns party to the Credit
Agreement from time to time, the "LENDERS"), and Credit Suisse First Boston, as
Administrative Agent for the Lenders (in such capacity, "SECURED PARTY"),
pursuant to which Lenders have made certain commitments, subject to the terms
and conditions set forth in the Credit Agreement, to extend certain credit
facilities to Company; and
WHEREAS, Company may from time to time enter, or may from time to
time have entered, into one or more Hedge Agreements (collectively, the "LENDER
HEDGE AGREEMENTS") with one or more Persons that are Lenders or Affiliates of
Lenders at the time such Lender Hedge Agreements are entered into (in such
capacity, collectively, "HEDGE PROVIDERS"); and
[Insert if Grantor is a Subsidiary:] [WHEREAS, Grantor has
executed and delivered that certain Guaranty dated as of September __, 2001
(said Subsidiary Guaranty, as it may hereafter be amended, supplemented or
otherwise modified from time to time, being the "GUARANTY") in favor of Secured
Party for the benefit of Lenders and any Hedge Providers, pursuant to which
Grantor has guarantied the prompt payment and performance when due of all
obligations of Company under the Credit Agreement and the other Loan Documents
and all obligations of Company under the Lender Hedge Agreements, including
without limitation the obligation of Company to make payments thereunder in the
event of early termination thereof; and]
WHEREAS, pursuant to the terms of a Security Agreement dated as
of September __, 2001 (as amended, supplemented, restated or otherwise modified
from time to time, the "SECURITY AGREEMENT"), among Grantor, Secured Party and
the other grantors named therein, Grantor has agreed to create in favor of
Secured Party a secured and protected interest in, and Secured Party has agreed
to become a secured creditor with respect to, the Copyright Collateral;
NOW, THEREFORE, for good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, subject to the terms and
conditions of the Security Agreement, Grantor hereby grants to Secured Party a
security interest in all of Grantor's right, title and interest in and to the
following, in each case whether now or hereafter existing or in
III-1
246
which Grantor now has or hereafter acquires an interest and wherever the same
may be located (the "COPYRIGHT COLLATERAL"):
(i) all rights, title and interest (including rights acquired
pursuant to a license or otherwise but only to the extent permitted by
agreements governing such license or other use) under copyright in
various published and unpublished works of authorship including, without
limitation, computer programs, computer data bases, other computer
software layouts, trade dress, drawings, designs, writings, and formulas
(including, without limitation, the works listed on Schedule A, as the
same may be amended pursuant hereto from time to time) (collectively,
the "COPYRIGHTS"), all copyright registrations issued to Grantor and
applications for copyright registration that have been or may hereafter
be issued or applied for thereon in the United States and any state
thereof and in foreign countries (including, without limitation, the
registrations listed on Schedule A, as the same may be amended pursuant
hereto from time to time) (collectively, the "COPYRIGHT REGISTRATIONS"),
all common law and other rights in and to the Copyrights in the United
States and any state thereof and in foreign countries including all
copyright licenses (but with respect to such copyright licenses, only to
the extent permitted by such licensing arrangements) (the "COPYRIGHT
RIGHTS"), including, without limitation, each of the Copyrights, rights,
titles and interests in and to the Copyrights, all derivative works and
other works protectable by copyright, which are presently, or in the
future may be, owned, created (as a work for hire for the benefit of
Grantor), authored (as a work for hire for the benefit of Grantor), or
acquired by Grantor, in whole or in part, and all Copyright Rights with
respect thereto and all Copyright Registrations therefor, heretofore or
hereafter granted or applied for, and all renewals and extensions
thereof, throughout the world, including all proceeds thereof (such as,
by way of example and not by limitation, license royalties and proceeds
of infringement suits), the right (but not the obligation) to renew and
extend such Copyright Registrations and Copyright Rights and to register
works protectable by copyright and the right (but not the obligation) to
▇▇▇ in the name of such Grantor or in the name of Secured Party or
Lenders for past, present and future infringements of the Copyrights and
Copyright Rights; and
(ii) all proceeds, products, rents and profits of or from any and
all of the foregoing Copyright Collateral and, to the extent not
otherwise included, all payments under insurance (whether or not Secured
Party is the loss payee thereof), or any indemnity, warranty or
guaranty, payable by reason of loss or damage to or otherwise with
respect to any of the foregoing Copyright Collateral. For purposes of
this Grant of Copyright Security Interest, the term "PROCEEDS" includes
whatever is receivable or received when Copyright Collateral or proceeds
are sold, exchanged, collected or otherwise disposed of, whether such
disposition is voluntary or involuntary.
Grantor does hereby further acknowledge and affirm that the
rights and remedies of Secured Party with respect to the security interest in
the Copyright Collateral granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
III-2
247
IN WITNESS WHEREOF, Grantor has caused this Grant of Copyright
Security Interest to be duly executed and delivered by its officer thereunto
duly authorized as of the ___ day of August, 2001.
[NAME OF GRANTOR]
By:
-----------------------------
Title:
-----------------------------
SCHEDULE A
TO
GRANT OF COPYRIGHT SECURITY INTEREST
U.S. COPYRIGHTS:
Title Registration No. Date of Issue Registered Owner
----- ---------------- ------------- ----------------
Patent No. Issue Date Invention Inventor
---------- ---------- --------- --------
PENDING U.S. COPYRIGHT REGISTRATIONS & APPLICATIONS:
Title Reference No. Date of Application Copyright Claimant
----- ------------- ------------------- ------------------
S-1
248
EXHIBIT IV TO
SECURITY AGREEMENT
PLEDGE SUPPLEMENT
This Pledge Supplement, dated __________________, is delivered
pursuant to the Security Agreement, dated September __, 2001 between
____________________, a _______________ ("GRANTOR"), the other Grantors named
therein, and __________________ (as it may be from time to time amended,
modified, restated or supplemented, the "SECURITY AGREEMENT"). Capitalized terms
used herein not otherwise defined herein shall have the meanings ascribed
thereto in the Security Agreement.
Grantor hereby agrees that the [Pledged Shares] [Pledged Debt]
listed on the schedule attached hereto shall be deemed to be part of the
[Pledged Shares] [Pledged Debt] and shall become part of the Securities
Collateral and shall secure all Secured Obligations.
IN WITNESS WHEREOF, Grantor has caused this Pledge Supplement to
be duly executed and delivered by its duly authorized officer as of
_______________.
[GRANTOR]
By:
-----------------------------
Title:
-----------------------------
249
EXHIBIT V TO
SECURITY AGREEMENT
IP SUPPLEMENT
This IP SUPPLEMENT, dated _______, is delivered pursuant to and
supplements (i) the Security Agreement, dated as of September __, 2001 (as it
may be from time to time amended, modified or supplemented, the "SECURITY
AGREEMENT"), among The ▇▇▇▇▇▇▇▇ Group, Inc., [Insert Name of Grantor], the other
Grantors named therein, and Credit Suisse First Boston, as Secured Party, and
(ii) the [Grant of Trademark Security Interest] [Grant of Patent Security
Interest] [Grant of Copyright Security Interest] dated as of ___________, _____
(the "GRANT") executed by Grantor. Capitalized terms used herein not otherwise
defined herein shall have the meanings ascribed thereto in the Grant.
Grantor grants to Secured Party a security interest in all of
Grantor's right, title and interest in and to the [Trademark Collateral] [Patent
Collateral] [Copyright Collateral] listed on Schedule A attached hereto. All
such [Trademark Collateral] [Patent Collateral] [Copyright Collateral] shall be
deemed to be part of the [Trademark Collateral] [Patent Collateral] [Copyright
Collateral] and shall be hereafter subject to each of the terms and conditions
of the Security Agreement and the Grant.
IN WITNESS WHEREOF, Grantor has caused this Supplement to be duly
executed and delivered by its duly authorized officer as of ______________.
[NAME OF GRANTOR]
By:
-----------------------------
Title:
-----------------------------
250
EXHIBIT VI TO
SECURITY AGREEMENT
FORM OF COUNTERPART
This COUNTERPART (this "COUNTERPART"), dated _______, is
delivered pursuant to Section 22 of the Security Agreement referred to below.
The undersigned hereby agrees that this Counterpart may be attached to the
Security Agreement, dated as of September __, 2001 (as it may be from time to
time amended, modified or supplemented, the "SECURITY AGREEMENT"; capitalized
terms used herein not otherwise defined herein shall have the meanings ascribed
therein), among The ▇▇▇▇▇▇▇▇ Group, Inc., the other Grantors named therein, and
Credit Suisse First Boston, as Secured Party. The undersigned by executing and
delivering this Counterpart hereby becomes a Grantor under the Security
Agreement in accordance with Section 22 thereof and agrees to be bound by all of
the terms thereof. Without limiting the generality of the foregoing, the
undersigned hereby:
(i) authorizes Secured Party to add the information set forth on
the Schedules to this Agreement to the correlative Schedules attached to the
Security Agreement;
(ii) agrees that all Collateral of the undersigned, including the
items of property described on the Schedules hereto, shall become part of the
Collateral and shall secure all Secured Obligations; and
(iii) makes the representations and warranties set forth in the
Security Agreement, as amended hereby, to the extent relating to the
undersigned.
[NAME OF ADDITIONAL GRANTOR]
By:
-----------------------------
Title:
-----------------------------
251
EXHIBIT XV(A)
FORM OF DEED OF TRUST
DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF RENTS
AND LEASES AND FIXTURE FILING ([STATE])
BY AND FROM
___________________________, "GRANTOR"
TO
[NAME OF TRUSTEE], "TRUSTEE"
FOR THE BENEFIT OF
CREDIT SUISSE FIRST BOSTON,
IN ITS CAPACITY AS ADMINISTRATIVE AGENT, "BENEFICIARY"
DATED AS OF __________, 2001
LOCATION:
MUNICIPALITY:
COUNTY:
STATE:
THE SECURED PARTY (BENEFICIARY) DESIRES THIS FIXTURE FILING
TO BE INDEXED AGAINST THE RECORD OWNER OF THE REAL ESTATE
DESCRIBED HEREIN
PREPARED BY, RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO:
O'MELVENY & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
ATTENTION: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇
FILE #185,550-059
252
DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF RENTS
AND LEASES AND FIXTURE FILING ([STATE])
THIS DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND
LEASES AND FIXTURE FILING ([STATE]) (this "DEED OF TRUST") is dated as of
__________, 2001 by and from ___________________________, a
______________________ ("GRANTOR"), whose address is , to [Trustee Name]
("TRUSTEE") for the benefit of CREDIT SUISSE FIRST BOSTON, as Administrative
Agent (in such capacity, "ADMINISTRATIVE AGENT") for the lenders party from time
to time to the Credit Agreement (defined below) and the Hedge Providers (defined
below) (all such lenders, together with their respective successors and assigns,
and the Hedge Providers are collectively referred to as the "LENDERS"), having
an address at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (Administrative Agent,
together with its successors and assigns, "BENEFICIARY").
RECITALS
A. Administrative Agent and the Lenders have entered into a
Credit Agreement dated as of September __, 2001, with The ▇▇▇▇▇▇▇▇ Group, Inc.,
a Delaware corporation ("BORROWER"), pursuant to which Administrative Agent and
the Lenders have made certain commitments, subject to the terms and conditions
set forth therein, to extend certain credit facilities to the Borrower (said
Credit Agreement, as it may hereafter be amended, restated, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"). Initially
capitalized terms used in this Deed of Trust without definition are defined in
the Credit Agreement.
B. Borrower may from time to time enter, or may from time to time
have entered, into one or more Hedge Agreements (collectively, the "LENDER HEDGE
AGREEMENTS") with one or more Persons that are Lenders or Affiliates of Lenders
(in such capacity, collectively, the "HEDGE PROVIDERS") at the time such Lender
Hedge Agreements are entered into in accordance with the terms of the Credit
Agreement.
C. [Grantor has executed and delivered that certain Subsidiary
Guaranty dated of even date herewith (as the same may hereafter be amended,
restated, supplemented or otherwise modified from time to time, the "SUBSIDIARY
GUARANTY") in favor of Beneficiary and the Lenders, pursuant to which Grantor
has guaranteed the prompt payment and performance when due of all of the
obligations of Borrower under the Credit Agreement and other Loan Documents to
which it is a party and the obligations of Borrower under the Lender Hedge
Agreements, including the obligation of Borrower to make payments thereunder in
the event of early termination thereof.] (1)
D. Pursuant to the Credit Agreement, in order to induce
Administrative Agent and the Lenders to make Loans and other extensions of
credit under the Credit Agreement and Hedge Providers to enter into the Lender
Hedge Agreements, Grantor has agreed to execute and deliver this Deed of Trust.
----------
(1) To be modified if the Grantor is Borrower.
XV(A)-1
253
ARTICLE 1
DEFINITIONS
SECTION 1.1. DEFINITIONS. As used herein, the following terms shall have
the following meanings:
(a) "INDEBTEDNESS": (1) All indebtedness of Borrower to
Beneficiary and the Lenders, the full and prompt payment of which has been
guaranteed by Grantor 1 pursuant to the Subsidiary Guaranty, including, without
limitation, the sum of all (a) principal, interest and other amounts evidenced
or secured by the Loan Documents and the Lender Hedge Agreements, and (b)
principal, interest and other amounts which may hereafter be loaned by
Beneficiary or any of the Lenders under or in connection with the Credit
Agreement, any of the other Loan Documents or the Lender Hedge Agreements,
whether evidenced by a promissory note or other instrument which, by its terms,
is secured hereby, and (2) all other indebtedness, obligations and liabilities
now or hereafter existing of any kind of Grantor to Beneficiary or any of the
Lenders under documents which recite that they are intended to be secured by
this Deed of Trust. The Credit Agreement contains a revolving credit facility
which permits Borrower to borrow certain principal amounts, repay all or a
portion of such principal amounts, and reborrow the amounts previously paid to
the Lenders, all upon satisfaction of certain conditions stated in the Credit
Agreement. This Deed of Trust secures all of Grantor's obligations with respect
to advances and re-advances under the revolving credit feature of the Credit
Agreement.
(b) "MORTGAGED PROPERTY": All of Grantor's right, title and
interest in and to the following: (1) the fee interest in the real property
described on Exhibit A and the leasehold interest in the real property described
in Exhibit A created by the Subject Lease, if any, (hereafter defined) together
with any greater estate therein as hereafter may be acquired by Grantor (the
"LAND") together with all rights, privileges, tenements, hereditaments,
rights-of-way, easements, appendages and appurtenances appertaining to the
foregoing and all interests now or in the future arising in respect of,
benefiting or otherwise relating to the Land, including, without limitation,
easements, rights-of-way and development rights, including all right, title and
interest now owned or hereafter acquired by Grantor in and to any land lying
within the right of way of any street, open or proposed, adjoining the Land, and
any and all sidewalks, alleys, driveways, and strips and gores of land adjacent
to or used in connection with the Land (which, together with the Land, are
collectively referred to as the "REAL PROPERTY"); (2) all improvements now owned
or hereafter acquired by Grantor, now or at any time situated, placed or
constructed upon the Land (the "IMPROVEMENTS"); (3) all fixtures, machinery,
appliances, goods, building or other materials, motors, generators, conduits,
switchboards, communications apparatus, equipment, (including, without
limitation, audio and/or video recording equipment, transmitting towers,
transmitters and broadcasting equipment and all machinery, equipment, engines,
appliances and fixtures for generating or distributing air, water, heat,
electricity, light, sewage, fuel or refrigeration, or for ventilating or
sanitary purposes, the exclusion of vermin or insects, or the removal of dust,
refuse or garbage), and all extensions, additions, accessions, improvements,
betterments, renewals, substitutions, and replacements to any of the foregoing,
which, to the fullest extent permitted by law, shall be conclusively deemed
fixtures and improvements and a part of the real property hereby encumbered (the
"FIXTURES") (the Real Property, Improvements and Fixtures are collectively
referred to as the "PREMISES"); (4) all personal property, goods,
XV(A)-2
254
equipment and supplies used in the commercial operations on the Premises,
including communication systems, visual and electronic surveillance systems and
transportation systems and all other personal property of any kind or character,
including such items of personal property as defined in the UCC (defined below),
now or hereafter owned or leased by Grantor or in which Grantor has any rights
or interest and located in or on, or attached to, or used or intended to be used
or which are now or may hereafter be appropriated for use on or in connection
with the operation of the Premises, and all extensions, additions, accessions,
improvements, betterments, renewals, and including everything in clause (3) not
permitted to be deemed fixtures and improvements, substitutions, and
replacements to any of the foregoing (the "PERSONALTY"); (5) all reserves,
escrows or impounds required under the Credit Agreement or other Loan Documents
and all deposit accounts maintained by Grantor with respect to the Mortgaged
Property (the "DEPOSIT ACCOUNTS"); (6) all leases, licenses, concessions,
occupancy agreements or other agreements (written or oral, now or at any time in
effect) which grant to any Person a possessory interest in, or the right to use,
all or any part of the Mortgaged Property, together with all related security
and other deposits (the "LEASES"); (7) all of the rents, revenues, royalties,
income, proceeds, profits, security and other types of deposits, and other
benefits paid or payable by parties to the Leases for using, leasing, licensing,
possessing, operating from, residing in, selling or otherwise enjoying the
Mortgaged Property (the "RENTS"); (8) all other agreements, such as construction
contracts, architects' agreements, engineers' contracts, utility contracts,
maintenance agreements, management agreements, service contracts, listing
agreements, guaranties, warranties, permits, licenses, certificates and
entitlements in any way relating to the construction, use, occupancy, operation,
maintenance, enjoyment or ownership of the Mortgaged Property (the "PROPERTY
AGREEMENTS"); (9) all property tax refunds (the "TAX REFUNDS"); (10) all
accessions, replacements and substitutions for any of the foregoing and all
proceeds thereof (the "PROCEEDS"); (11) all insurance policies, unearned
premiums therefor and proceeds from such policies covering any of the above
property now or hereafter acquired by Grantor (the "INSURANCE"); and (12) all
awards, damages, remunerations, reimbursements, settlements or compensation
heretofore made or hereafter to be made by any governmental authority pertaining
to the Premises or Personalty (the "CONDEMNATION AWARDS"). As used in this Deed
of Trust, the term "Mortgaged Property" means all or, where the context permits
or requires, any portion of the above or any interest therein.
(c) "OBLIGATIONS": All of the agreements, covenants, conditions,
warranties, representations and other obligations of Grantor under the
Subsidiary Guaranty and the other Loan Documents to which it is a party.1
(d) "SUBJECT LEASE": All of the leases described on Exhibit B
attached hereto and incorporated herein by this reference.
(e) "UCC": The Uniform Commercial Code in the [State]. If the
creation, perfection and enforcement of any security interest herein granted is
governed by the laws of a state other than [State], then, as to the matter in
question, the term "UCC" means the UCC (as defined in the Credit Agreement) in
effect in that state.
XV(A)-3
255
ARTICLE 2
GRANT
SECTION 2.1. GRANT. To secure the full and timely payment and
performance of the Obligations, Grantor GRANTS, BARGAINS, ASSIGNS, SELLS and
CONVEYS, to Trustee the Mortgaged Property, subject, however, to the Permitted
Encumbrances, TO HAVE AND TO HOLD the Mortgaged Property, IN TRUST, WITH POWER
OF SALE, and Grantor does hereby bind itself, its successors and assigns to
WARRANT AND FOREVER DEFEND the title to the Mortgaged Property unto Trustee.
ARTICLE 3
WARRANTIES, REPRESENTATIONS AND COVENANTS
Grantor warrants, represents and covenants to Beneficiary and
Lenders as follows:
SECTION 3.1. TITLE TO MORTGAGED PROPERTY AND LIEN OF THIS INSTRUMENT.
Grantor has (i) good, sufficient and legal title to the Premises; (ii) valid
leasehold interests in the Subject Lease and in any leasehold interest in the
Personalty; and (iii) good title to all Personalty and to all other Mortgaged
Property free and clear of any Liens except for the Permitted Encumbrances. This
Deed of Trust creates valid, enforceable First Priority Liens and security
interests against the Mortgaged Property.
SECTION 3.2. FIRST LIEN STATUS. Grantor shall preserve and protect the
First Priority Lien and security interest status of this Deed of Trust and the
other Loan Documents. If any Lien or security interest other than the Permitted
Encumbrances is asserted against the Mortgaged Property, Grantor shall promptly,
and at its expense, (a) give Beneficiary a detailed written notice of such Lien
or security interest (including origin, amount and other terms), and (b) pay the
underlying claim in full or take such other action so as to cause it to be
released or contest the same in compliance with the requirements of the Credit
Agreement (including the requirement of providing a bond or other security
satisfactory to Beneficiary).
SECTION 3.3. PAYMENT AND PERFORMANCE. Grantor shall pay and perform the
Obligations in full when they are required to be paid and performed.
SECTION 3.4. REPLACEMENT OF FIXTURES AND PERSONALTY. Except for the sale
of Inventory in the ordinary course of business and sales permitted pursuant to
subsection 7.7 of the Credit Agreement, Grantor shall not, without the prior
written consent of Beneficiary, permit any of the Fixtures or Personalty owned
or leased by Grantor to be removed at any time from the Real Property or
Improvements, unless the removed item is removed temporarily for maintenance and
repair or, if removed permanently, is permitted to be removed by the Credit
Agreement.
SECTION 3.5. INSPECTIONS.
(a) Inspections and Meeting. Grantor shall permit (i) any
authorized representatives designated by Beneficiary to visit and inspect any of
the Mortgaged Property,
XV(A)-4
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including its financial and accounting records, and to make copies and take
extracts therefrom, and to discuss its finances and accounts with its officers
and independent public accountants (provided that Grantor may, if it so chooses,
be present at or participate in any such discussion), all upon reasonable notice
and at such reasonable times during normal business hours and as often as may be
reasonably requested.
(b) Environmental Inspection. Grantor agrees that upon a
reasonable belief by Beneficiary that Grantor has breached any covenant or
representation with respect to environmental matters or that there has been a
material violation of Environmental Laws at the Premises or by Grantor,
Beneficiary may conduct its own reasonable investigation of such matter at the
Premises and Grantor agrees to use its best efforts to obtain permission for
Beneficiary's professional consultant to conduct its own investigation of any
such matter at the Premises. Grantor hereby grants to Beneficiary and its
agents, employees, consultants and contractors the right to enter into or on to
the Premises upon reasonable notice to Grantor to perform such assessments on
such property as are reasonably necessary to conduct such a review and/or
investigation.
SECTION 3.6. OTHER COVENANTS. All of the covenants of Borrower to the
extent applicable to the Mortgaged Property in the Credit Agreement are
incorporated herein by this reference and are hereby made by Grantor with
respect to the Mortgaged Property. Such covenants, together with covenants in
this Article 3, are covenants running with the land.
SECTION 3.7. CONDEMNATION AWARDS AND INSURANCE PROCEEDS.
(a) Condemnation Awards. Grantor assigns all awards and
compensation to which it is entitled for any condemnation or other taking, or
any purchase in lieu thereof, to Beneficiary and authorizes Beneficiary to
collect and receive such awards and compensation and to give proper receipts and
acquittances therefor in accordance with the terms of the Credit Agreement.
(b) Insurance Proceeds. Grantor assigns to Beneficiary all
proceeds of any insurance policies insuring against loss or damage to the
Mortgaged Property. Grantor authorizes Beneficiary to collect and receive such
proceeds and authorizes and directs the issuer of each of such insurance
policies to make payment for all such losses directly to Beneficiary, instead of
to Grantor and Beneficiary jointly.
SECTION 3.8. OTHER PROPERTY RIGHTS. All easements, leasehold, and other
property interests, all utility and other services (including gas, electrical,
telephone, water and sewage services and facilities), means of transportation,
facilities, other materials and other rights that are reasonably necessary for
the operation of the Mortgaged Property in accordance with applicable
requirements of law have been procured or are commercially available to the
Mortgaged Property at commercially reasonable rates and, to the extent
appropriate, arrangements have been made on commercially reasonable terms for
such easements, interests, services, means of transportation, facilities,
materials, and rights. The Land is taxed separately without regard to any other
property and has been subdivided from all other property in compliance with
applicable laws. No subdivision or other approval is necessary with respect to
XV(A)-5
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the Premises in order for Grantor to mortgage, convey, or otherwise deal with
the Premises as a separate lot or parcel.
SECTION 3.9. PEACEABLE POSSESSION. Grantor's possession of the Mortgaged
Property has been peaceable and undisturbed and, to the best of the Grantor's
knowledge, after due inquiry, the title thereto has never been disputed or
questioned, and the Grantor does not know of any facts by reason of which any
adverse claim to any part of the Mortgaged Property or to any undivided interest
therein might be set up or made.
SECTION 3.10. TAXES.
(a) Grantor shall pay, when due and prior to delinquency, all
Taxes imposed or levied by any Government Authority which create a Lien upon the
Mortgaged Property or any part thereof (all of which Taxes are hereinafter
referred to as "IMPOSITIONS"). If by law any such Imposition is payable, or may
at the option of the taxpayer be paid, in installments, Grantor may pay the
same, together with any accrued interest on the unpaid balance of such
Imposition, in installments as the same become due and before any fine, penalty,
interest or cost may be added thereto for the nonpayment of any such installment
and interest. If at any time after the date hereof there shall be assessed or
imposed a license fee, tax or assessment on Beneficiary which is measured by or
based in whole or in part upon the amount of the outstanding Obligations, then
all such Taxes shall be deemed to be included within the term "Impositions" as
defined herein, and Grantor shall pay and discharge the same as herein provided
with respect to the payment of Impositions, or, if Grantor shall not be
permitted by law to pay and discharge such Imposition either directly or
indirectly, then, at the option of Beneficiary, all obligations secured hereby,
together with all interest thereon, shall become immediately due and payable.
(b) Subject to the provisions of Section 3.10(c), upon
Beneficiary's request, Grantor shall furnish to Beneficiary within 30 days after
the date upon which any Imposition is due and payable, official receipts of the
appropriate taxing authority, or other proof satisfactory to Beneficiary,
evidencing the payment thereof.
(c) Grantor has the right, before any delinquency occurs, to
contest or object to the amount or validity of any Imposition by appropriate
legal proceedings, but this right shall not be deemed or construed in any way as
relieving, modifying or postponing Grantor's obligation to pay any such
Imposition at the time and in the manner provided herein, unless (i) Grantor has
given prior written notice to Beneficiary of Grantor's intent so to contest or
object to an Imposition; (ii) Grantor has demonstrated to Beneficiary's
satisfaction that the legal proceedings shall conclusively operate to prevent
the sale of the Mortgaged Property, or any part thereof, to satisfy such
Imposition prior to a final determination of such proceedings; or (iii) such
reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP or by the appropriate taxing authority shall have been
provided.
SECTION 3.11. UTILITIES. Grantor shall pay, when due, all utility
charges incurred by Grantor for the benefit of the Mortgaged Property, or which
may become a charge or Lien against the Mortgaged Property, for gas,
electricity, water, sewer and all other utility services furnished to the
Mortgaged Property, and all other assessments or charges of a similar nature,
XV(A)-6
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whether public or private, affecting the Mortgaged Property or any portion
thereof, whether or not such assessments or charges are Liens thereon.
SECTION 3.12. MAINTENANCE OF PROPERTIES. Grantor will maintain or cause
to be maintained in good repair, working order and condition, ordinary wear and
tear excepted, all material properties used or useful in the business of Grantor
(including all Intellectual Property) and from time to time will make or cause
to be made all appropriate repairs, renewals and replacements thereof.
ARTICLE 4
LEASEHOLD PROVISIONS
SECTION 4.1. REPRESENTATIONS; WARRANTIES; COVENANTS. Grantor hereby
represents, warrants and covenants that:
(a)(1) The Subject Lease is unmodified and in full force and
effect, (2) all rent and other charges therein have been paid to the extent they
are payable to the date hereof, (3) Grantor enjoys the quiet and peaceful
possession of the property demised thereby, (4) to the best of its knowledge,
Grantor is not in default under any of the terms thereof and there are no
circumstances which, with the passage of time or the giving of notice or both,
would constitute an event of default thereunder, (5) to the best of Grantor's
knowledge, the lessor thereunder is not in default under any of the terms or
provisions thereof on the part of the lessor to be observed or performed;
(b) Grantor shall promptly pay, when due and payable, the rent
and other charges payable pursuant to the Subject Lease, and will timely perform
and observe all of the other terms, covenants and conditions required to be
performed and observed by Grantor as lessee under the Subject Lease;
(c) Grantor shall notify Beneficiary in writing of any default by
Grantor in the performance or observance of any terms, covenants or conditions
on the part of Grantor to be performed or observed under the Subject Lease
within three (3) days after Grantor knows of such default;
(d) Grantor shall, immediately upon receipt thereof, deliver a
copy of each notice given to Grantor by the lessor pursuant to the Subject Lease
and promptly notify Beneficiary in writing of any default by the lessor in the
performance or observance of any of the terms, covenants or conditions on the
part of the lessor to be performed or observed thereunder;
(e) Unless required under the terms of the Subject Lease, Grantor
shall not, without the prior written consent of Beneficiary (which may be
granted or withheld in Beneficiary's sole and absolute discretion) terminate,
modify or surrender the Subject Lease, and any such attempted termination,
modification or surrender without Beneficiary's written consent shall be void;
and
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(f) Grantor shall, within twenty (20) days after written request
from Beneficiary, use its best efforts to obtain from the lessor and deliver to
Beneficiary a certificate setting forth the name of the tenant thereunder and
stating that the Subject Lease is in full force and effect, is unmodified or, if
the Subject Lease has been modified, the date of each modification (together
with copies of each such modification), that no notice of termination thereon
has been served on Grantor, stating that no default or event which with notice
or lapse of time (or both) would become a default is existing under the Subject
Lease, stating the date to which rent has been paid, and specifying the nature
of any defaults, if any, and containing such other statements and
representations as may be requested by Beneficiary.
SECTION 4.2. NO MERGER. So long as any of the Indebtedness or the
Obligations remain unpaid or unperformed, the fee title to and the leasehold
estate in the premises subject to the Subject Lease shall not merge but shall
always be kept separate and distinct notwithstanding the union of such estates
in the lessor or Grantor, or in a third party, by purchase or otherwise. If
Grantor acquires the fee title or any other estate, title or interest in the
property demised by the Subject Lease, or any part thereof, the Lien of this
Deed of Trust shall attach to, cover and be a Lien upon such acquired estate,
title or interest and the same shall thereupon be and become a part of the
Mortgaged Property with the same force and effect as if specifically encumbered
herein. Grantor agrees to execute all instruments and documents that Beneficiary
or Trustee may reasonably require to ratify, confirm and further evidence the
Lien of this Deed of Trust on the acquired estate, title or interest.
Furthermore, Grantor hereby appoints Beneficiary as its true and lawful
attorney-in-fact to execute and deliver, following an Event of Default, all such
instruments and documents in the name and on behalf of Grantor. This power,
being coupled with an interest, shall be irrevocable as long as any portion of
the Indebtedness remains unpaid.
SECTION 4.3. BENEFICIARY AS LESSEE. If the Subject Lease is terminated
prior to the natural expiration of its term due to default by Grantor or any
tenant thereunder, and if Beneficiary or its designee acquires from the lessor a
new lease of the premises, Grantor shall have no right, title or interest in or
to such new lease or the leasehold estate created thereby, or renewal privileges
therein contained.
SECTION 4.4. NO ASSIGNMENT. If this Deed of Trust constitutes a
prohibited collateral assignment of the Subject Lease under the terms of the
Subject Lease, then the assignment of the Subject Lease in this Deed of Trust
will be deemed conditioned upon the receipt of any consent expressly required
under the Subject Lease and Beneficiary and Lenders have no liability or
obligation thereunder by reason of its acceptance of this Deed of Trust.
Beneficiary and Lenders will be liable for the obligations of the tenant arising
out of the Subject Lease for only that period of time for which Beneficiary or
Lenders are in possession of the Premises or have acquired, by foreclosure or
otherwise, and are holding all of Grantor's right, title and interest therein.
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ARTICLE 5
DEFAULT AND FORECLOSURE
SECTION 5.1 REMEDIES. If an Event of Default exists, Beneficiary may, at
Beneficiary's election and by or through Trustee or otherwise, exercise any or
all of the following rights, remedies and recourses:
(a) Acceleration. Declare the Indebtedness and/or Obligations to
be immediately due and payable, without further notice, presentment, protest,
notice of intent to accelerate, notice of acceleration, demand or action of any
nature whatsoever (each of which hereby is expressly waived by Grantor),
whereupon the same shall become immediately due and payable.
(b) Entry on Mortgaged Property. Enter the Mortgaged Property and
take exclusive possession thereof and of all books, records and accounts
relating thereto or located thereon. If Grantor remains in possession of the
Mortgaged Property after an Event of Default and without Beneficiary's prior
written consent, Beneficiary may invoke any legal remedies to dispossess
Grantor.
(c) Operation of Mortgaged Property. Hold, lease, develop,
manage, operate or otherwise use the Mortgaged Property upon such terms and
conditions as Beneficiary may deem reasonable under the circumstances (making
such repairs, alterations, additions and improvements and taking other actions,
from time to time, as Beneficiary deems necessary or desirable), and apply all
Rents and other amounts collected by Trustee in connection therewith in
accordance with the provisions of Section 5.7.
(d) Foreclosure and Sale. Institute proceedings for the complete
foreclosure of this Deed of Trust, either by judicial action or by power of
sale, in which case the Mortgaged Property may be sold for cash or credit in one
or more parcels as Beneficiary may determine. With respect to any notices
required or permitted under the UCC, Grantor agrees that five (5) days' prior
written notice shall be deemed commercially reasonable. At any such sale by
virtue of any judicial proceedings, power of sale, or any other legal right,
remedy or recourse, the title to and right of possession of any such property
shall pass to the purchaser thereof, and to the fullest extent permitted by law,
Grantor shall be completely and irrevocably divested of all of its right, title,
interest, claim, equity, equity of redemption, and demand whatsoever, either at
law or in equity, in and to the property sold and such sale shall be a perpetual
bar both at law and in equity against Grantor, and against all other Persons
claiming or to claim the property sold or any part thereof, by, through or under
Grantor. Beneficiary or any of the Lenders may be a purchaser at such sale. If
Beneficiary is the highest bidder, Beneficiary may credit the portion of the
purchase price that would be distributed to Beneficiary against the Indebtedness
in lieu of paying cash. In the event this Deed of Trust is foreclosed by
judicial action, appraisement of the Mortgaged Property is waived.
(e) Receiver. Make application to a court of competent
jurisdiction for, and obtain from such court as a matter of strict right and
without notice to Grantor or regard to the adequacy of the Mortgaged Property
for the repayment of the Indebtedness, the appointment of a
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receiver of the Mortgaged Property, and Grantor irrevocably consents to such
appointment. Any such receiver shall have all the usual powers and duties of
receivers in similar cases, including the full power to rent, maintain and
otherwise operate the Mortgaged Property upon such terms as may be approved by
the court, and shall apply such Rents in accordance with the provisions of
Section 5.7.
(f) Other. Exercise all other rights, remedies and recourses
granted under the Loan Documents or otherwise available at law or in equity.
SECTION 5.2. SEPARATE SALES. The Mortgaged Property may be sold in one
or more parcels and in such manner and order as Trustee in its sole discretion
may elect; the right of sale arising out of any Event of Default shall not be
exhausted by any one or more sales.
SECTION 5.3. REMEDIES CUMULATIVE, CONCURRENT AND NONEXCLUSIVE.
Beneficiary, Trustee and the Lenders shall have all rights, remedies and
recourses granted in the Loan Documents and available at law or equity
(including the UCC), which rights (a) shall be cumulated and concurrent, (b) may
be pursued separately, successively or concurrently against Grantor or others
obligated under the Loan Documents, or against the Mortgaged Property, or
against any one or more of them, at the sole discretion of Beneficiary, Trustee
or the Lenders, as the case may be, (c) may be exercised as often as occasion
therefor shall arise, and the exercise or failure to exercise any of them shall
not be construed as a waiver or release thereof or of any other right, remedy or
recourse, and (d) are intended to be, and shall be, nonexclusive. No action by
Beneficiary, Trustee or the Lenders in the enforcement of any rights, remedies
or recourses under the Loan Documents or otherwise at law or equity shall be
deemed to cure any Event of Default.
SECTION 5.4. RELEASE OF AND RESORT TO COLLATERAL. Beneficiary may
release, regardless of consideration and without the necessity for any notice to
or consent by the holder of any subordinate Lien on the Mortgaged Property, any
part of the Mortgaged Property without, as to the remainder, in any way
impairing, affecting, subordinating or releasing the Lien or security interest
created in or evidenced by the Loan Documents or their status as a first and
prior Lien and security interest in and to the Mortgaged Property. For payment
of the Indebtedness, Beneficiary may resort to any other security in such order
and manner as Beneficiary may elect.
SECTION 5.5. WAIVER OF REDEMPTION, NOTICE AND MARSHALLING OF ASSETS. To
the fullest extent permitted by law, Grantor hereby irrevocably and
unconditionally waives and releases (a) all benefit that might accrue to Grantor
by virtue of any present or future statute of limitations or law or judicial
decision exempting the Mortgaged Property from attachment, levy or sale on
execution or providing for any stay of execution, exemption from civil process,
redemption or extension of time for payment, (b) all notices of any Event of
Default or of any election by Trustee, Beneficiary or the Lenders to exercise or
the actual exercise of any right, remedy or recourse provided for under the Loan
Documents, and (c) any right to a marshalling of assets or a sale in inverse
order of alienation.
SECTION 5.6. DISCONTINUANCE OF PROCEEDINGS. If Beneficiary, Trustee or
the Lenders shall have proceeded to invoke any right, remedy or recourse
permitted under the Loan
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Documents and shall thereafter elect to discontinue or abandon it for any
reason, Beneficiary, Trustee, or the Lenders, as the case may be, shall have the
unqualified right to do so and, in such an event, Grantor, Beneficiary, Trustee,
and the Lenders shall be restored to their former positions with respect to the
Indebtedness, the Obligations, the Loan Documents, the Mortgaged Property and
otherwise, and the rights, remedies, recourses and powers of Beneficiary,
Trustee, and the Lenders shall continue as if the right, remedy or recourse had
never been invoked, but no such discontinuance or abandonment shall waive any
Event of Default which may then exist or the right of Beneficiary, Trustee, or
the Lenders thereafter to exercise any right, remedy or recourse under the Loan
Documents for such Event of Default.
SECTION 5.7. APPLICATION OF PROCEEDS. The proceeds of any sale of, and
the Rents and other amounts generated by the holding, leasing, management,
operation or other use of the Mortgaged Property, shall be applied by
Beneficiary, Trustee, or the Lenders (or the receiver, if one is appointed) in
the following order unless otherwise required by applicable law:
(a) to the payment of the costs and expenses of taking possession
of the Mortgaged Property and of holding, using, leasing, repairing, improving
and selling the same, including, without limitation (1) trustee's and receiver's
fees and expenses, including the repayment of the amounts evidenced by any
receiver's certificates, (2) court costs, (3) attorneys' and accountants' fees
and expenses, and (4) costs of advertisement;
(b) to the payment of the Indebtedness and performance of the
Obligations in such manner and order of preference as Beneficiary in its sole
discretion may determine; and
(c) the balance, if any, to the payment of the Persons legally
entitled thereto.
SECTION 5.8. OCCUPANCY AFTER FORECLOSURE. Any sale of the Mortgaged
Property or any part thereof in accordance with Section 5.1(d) will divest all
right, title and interest of Grantor in and to the property sold. Subject to
applicable law, any purchaser at a foreclosure sale will receive immediate
possession of the property purchased. If Grantor retains possession of such
property or any part thereof subsequent to such sale, Grantor will be considered
a tenant at sufferance of the purchaser, and will, if Grantor remains in
possession after demand to remove, be subject to eviction and removal, forcible
or otherwise, with or without process of law.
SECTION 5.9. ADDITIONAL ADVANCES AND DISBURSEMENTS; COSTS OF
ENFORCEMENT.
(a) If any Event of Default exists, Beneficiary and each of the
Lenders shall have the right, but not the obligation, to cure such Event of
Default in the name and on behalf of Grantor. All sums advanced and expenses
incurred at any time by Beneficiary or any Lender under this Section 5.9, or
otherwise under this Deed of Trust or any of the other Loan Documents or
applicable law, shall bear interest from the date that such sum is advanced or
expense incurred, to and including the date of reimbursement, computed at the
rate or rates at which interest is then computed on the Indebtedness, and all
such sums, together with interest thereon, shall be secured by this Deed of
Trust.
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(b) Grantor shall pay all expenses (including reasonable
attorneys' fees and expenses) of or incidental to the perfection and enforcement
of this Deed of Trust and the other Loan Documents, or the enforcement,
compromise or settlement of the Indebtedness or any claim under this Deed of
Trust and the other Loan Documents, and for the curing thereof, or for defending
or asserting the rights and claims of Beneficiary in respect thereof, by
litigation or otherwise.
SECTION 5.10. NO MORTGAGEE IN POSSESSION. Neither the enforcement of any
of the remedies under this Article 5, the assignment of the Rents and Leases
under Article 6, the security interests under Article 7, nor any other remedies
afforded to Beneficiary or the Lenders under the Loan Documents, at law or in
equity shall cause Beneficiary, Trustee, or any Lender to be deemed or construed
to be a mortgagee in possession of the Mortgaged Property, to obligate
Beneficiary, Trustee, or any Lender to lease the Mortgaged Property or attempt
to do so, or to take any action, incur any expense, or perform or discharge any
obligation, duty or liability whatsoever under any of the Leases or otherwise.
SECTION 5.11. ACTIONS BY BENEFICIARY TO PRESERVE THE MORTGAGED PROPERTY.
If Grantor fails to make any payment or do any act as and in the manner provided
in this Deed of Trust or in any of the other Loan Documents, Beneficiary, in its
sole and absolute discretion, without obligation so to do and without notice to
or demand upon Grantor and without releasing Grantor from any obligation, may
make such payment or do such act in such manner and to such extent as
Beneficiary may deem necessary to protect the security hereof. In connection
therewith (without limiting Beneficiary's general powers), Beneficiary shall
have and is hereby given the right, but not the obligation, (i) to enter upon
and take possession of the Mortgaged Property; (ii) to make additions,
alterations, repairs and Improvements to the Mortgaged Property which it may
consider necessary or proper to keep the Mortgaged Property in good condition
and repair; (iii) to appear and participate in any action or proceeding which
affects or may affect the security hereof or the rights or powers of
Beneficiary; (iv) to pay, purchase, contest or compromise any encumbrance,
claim, charge, Lien or debt which, in Beneficiary's judgment, may affect or
appear to affect the security of this Deed of Trust; and (v) in exercising such
powers, to employ counsel or other necessary or desirable experts or
consultants. Grantor shall, immediately upon demand therefor by Beneficiary, pay
all costs and expenses incurred by Beneficiary in connection with the exercise
by Beneficiary of the foregoing rights, including cost of evidence of title,
court costs, appraisals, surveys, and reasonable attorneys' fees, together with
interest thereon from the date incurred at the interest rate then in effect
under any Note. All such costs and expenses together with interest thereon shall
be secured by this Deed of Trust.
SECTION 5.12 DUE ON SALE. In order to induce Beneficiary and Lenders to
make the Loans and other extensions of credit under the Credit Agreement and the
Hedge Providers to enter into the Lender Hedge Agreement, Grantor agrees that,
except as otherwise expressly permitted pursuant to subsection 7.7 of the Credit
Agreement, in the event of any "TRANSFER" of the Mortgaged Property without the
prior written consent of Beneficiary, Beneficiary has the absolute right at its
option, without prior demand or notice, to declare all sums secured by this Deed
of Trust immediately due and payable. Consent to one such transaction will not
be deemed to be a waiver of the right to require consent to future or successive
transactions. Beneficiary may grant or deny such consent in its sole discretion
and, if consent is given, any such transfer
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will be subject to this Deed of Trust, and any such transferee shall assume all
obligations hereunder and agree to be bound by all provisions contained herein.
Such assumption will not, however, release Grantor, Borrower or any maker or
guarantor of the Obligations from any liability thereunder without the prior
written consent of Beneficiary and Lenders. As used herein, "TRANSFER" includes
the direct or indirect sale, agreement to sell, transfer, conveyance, pledge,
collateral assignment or hypothecation of the Mortgaged Property, or any portion
thereof or interest therein, whether voluntary, involuntary, by operation of law
or otherwise, the execution of any installment land sale contract or similar
instrument affecting all or a portion of the Mortgaged Property, or the lease of
all or substantially all of the Mortgaged Property. The term "TRANSFER" also
includes a Change in Control in Borrower or Grantor.
ARTICLE 6
ASSIGNMENT OF RENTS AND LEASES
SECTION 6.1. ASSIGNMENT. In furtherance of and in addition to the
assignment made by Grantor in Section 2.1 of this Deed of Trust, Grantor hereby
absolutely and unconditionally assigns, sells, transfers and conveys to Trustee
(for the benefit of Beneficiary) and to Beneficiary all of its right, title and
interest in and to all Leases, whether now existing or hereafter entered into,
and all of its right, title and interest in and to all Rents. This assignment is
an absolute assignment and not an assignment for additional security only. So
long as no Event of Default shall have occurred and be continuing, Grantor shall
have a revocable license from Trustee and Beneficiary to exercise all rights
extended to the landlord under the Leases, including the right to receive and
collect all Rents and to hold the Rents in trust for use in the payment and
performance of the Obligations and to otherwise use the same. The foregoing
license is granted subject to the conditional limitation that no Event of
Default shall have occurred and be continuing. Upon the occurrence and during
the continuance of an Event of Default, whether or not legal proceedings have
commenced, and without regard to waste, adequacy of security for the Obligations
or solvency of Grantor, the license herein granted shall automatically expire
and terminate, without notice to Grantor by Trustee or Beneficiary (any such
notice being hereby expressly waived by Grantor to the extent permitted by
applicable law).
SECTION 6.2. PERFECTION UPON RECORDATION. Grantor acknowledges that
Beneficiary and Trustee have taken all actions necessary to obtain, and that
upon recordation of this Deed of Trust, Beneficiary and Trustee shall have, to
the extent permitted under applicable law, a valid and fully perfected, first
priority, present assignment of the Rents arising out of the Leases and all
security for such Leases. Grantor acknowledges and agrees that upon recordation
of this Deed of Trust Trustee's and Beneficiary's interest in the Rents shall be
deemed to be fully perfected, "▇▇▇▇▇▇" and enforced as to Grantor and to the
extent permitted under applicable law, all third parties, including, without
limitation, any subsequently appointed trustee in any case under Title 11 of the
United States Code (the "BANKRUPTCY CODE"), without the necessity of commencing
a foreclosure action with respect to this Deed of Trust, making formal demand
for the Rents, obtaining the appointment of a receiver or taking any other
affirmative action.
SECTION 6.3. BANKRUPTCY PROVISIONS. Without limitation of the absolute
nature of the assignment of the Rents hereunder, Grantor, Trustee and
Beneficiary agree that (a) this Deed of Trust shall constitute a "security
agreement" for purposes of Section 552(b) of the Bankruptcy
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Code, (b) the security interest created by this Deed of Trust extends to
property of Grantor acquired before the commencement of a case in bankruptcy and
to all amounts paid as Rents and (c) such security interest shall extend to all
Rents acquired by the estate after the commencement of any case in bankruptcy.
SECTION 6.4. NO MERGER OF ESTATES. So long as part of the Indebtedness
and the Obligations secured hereby remain unpaid and undischarged, the fee and
leasehold estates to the Mortgaged Property shall not merge, but shall remain
separate and distinct, notwithstanding the union of such estates either in
Grantor, Beneficiary, any tenant or any third party by purchase or otherwise.
ARTICLE 7
SECURITY AGREEMENT
SECTION 7.1. SECURITY INTEREST. This Deed of Trust constitutes a
"security agreement" on personal property within the meaning of the UCC and
other applicable law and with respect to the Mortgaged Property. To this end,
Grantor grants to Beneficiary a first and prior security interest in the
Mortgaged Property which is personal property to secure the payment of the
Indebtedness and performance of the Obligations, and agrees that Beneficiary
shall have all the rights and remedies of a secured party under the UCC with
respect to such property. Any notice of sale, disposition or other intended
action by Beneficiary with respect to the Mortgaged Property which is personal
property sent to Grantor at least five (5) days prior to any action under the
UCC shall constitute reasonable notice to Grantor.
SECTION 7.2. FINANCING STATEMENTS. Grantor shall execute and deliver to
Beneficiary, in form and substance satisfactory to Beneficiary, such financing
statements and such further assurances as Beneficiary may, from time to time,
reasonably consider necessary to create, perfect and preserve Beneficiary's
security interest hereunder and Beneficiary may cause such statements and
assurances to be recorded and filed, at such times and places as may be required
or permitted by law to so create, perfect and preserve such security interest.
Grantor's chief executive office is at the address set forth in the first
paragraph of this Deed of Trust.
SECTION 7.3. FIXTURE FILING. This Deed of Trust shall also constitute a
"fixture filing" for the purposes of the UCC against all of the Mortgaged
Property which is or is to become fixtures. Information concerning the security
interest herein granted may be obtained at the addresses of Debtor (Grantor) and
Secured Party (Beneficiary) as set forth in the first paragraph of this Deed of
Trust.
ARTICLE 8
CONCERNING THE TRUSTEE
SECTION 8.1. CERTAIN RIGHTS. At any time, or from time to time, without
liability therefor and without notice, upon written request of Beneficiary and
presentation of this Deed of Trust and without affecting any personal liability
of any person for payment or performance of the Obligations or the effect of
this Deed of Trust upon the remainder of the Mortgaged Property, Trustee may (i)
reconvey any part of the Mortgaged Property, (ii) consent in writing to the
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making of any map or plat thereof, (iii) join in granting any easement thereon,
or (iv) join in any extension agreement or any agreement subordinating the Lien
of charge hereof. With the approval of Beneficiary, Trustee shall have the right
to select, employ and consult with counsel. Trustee shall have the right to rely
on any instrument, document or signature authorizing or supporting any action
taken or proposed to be taken by it hereunder, believed by it in good faith to
be genuine. Trustee shall be entitled to reimbursement for actual, reasonable
expenses incurred by it in the performance of its duties and to reasonable
compensation for Trustee's services hereunder as shall be rendered. Grantor
shall, from time to time, pay the compensation due to Trustee hereunder and
reimburse Trustee for, and indemnify, defend and save Trustee harmless against,
all liability and reasonable expenses which may be incurred by it in the
performance of its duties, including those arising from joint, concurrent, or
comparative negligence of Trustee; however, Grantor shall not be liable under
such indemnification to the extent such liability or expenses result solely from
Trustee's gross negligence or willful misconduct. Grantor's obligations under
this Section 8.1 shall not be reduced or impaired by principles of comparative
or contributory negligence.
SECTION 8.2. RETENTION OF MONEY. All moneys received by Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated in any manner from any
other moneys (except to the extent required by law), and Trustee shall be under
no liability for interest on any moneys received by Trustee hereunder.
SECTION 8.3. SUCCESSOR TRUSTEES. If Trustee or any successor Trustee
shall die, resign or become disqualified from acting in the execution of this
trust, or Beneficiary shall desire to appoint a substitute Trustee, Beneficiary
shall have full power to appoint one or more substitute Trustees and, if
preferred, several substitute Trustees in succession who shall succeed to all
the estates, rights, powers and duties of Trustee. Such appointment may be
executed by any authorized agent of Beneficiary and as so executed, such
appointment shall be conclusively presumed to be executed with authority, valid
and sufficient, without further proof of any action. Trustee shall be deemed to
have accepted appointment of this instrument when this instrument is recorded,
and any successor shall be deemed to have accepted appointment when the notice
of substitution is recorded. Without limitation of the foregoing, Beneficiary
may, from time to time, by a written instrument executed and acknowledged by
Beneficiary, recorded in the county in which the Mortgaged Property is located
or by otherwise complying with the provisions of applicable law, substitute a
successor or successors to any Trustee named herein or acting hereunder, and
such successor(s) shall, without conveyance from the predecessor Trustee,
succeed to all title, estate, rights, powers and duties of such predecessor.
SECTION 8.4. PERFECTION OF APPOINTMENT. Should any deed, conveyance or
instrument of any nature be required from Grantor by any successor Trustee to
more fully and certainly vest in and confirm to such successor Trustee such
estates, rights, powers and duties, then, upon request by such Trustee, all such
deeds, conveyances and instruments shall be made, executed, acknowledged and
delivered and shall be caused to be recorded and/or filed by Grantor.
SECTION 8.5. TRUSTEE LIABILITY. In no event or circumstance shall
Trustee or any substitute Trustee hereunder be personally liable under or as a
result of this Deed of Trust, either
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as a result of any action by Trustee (or any substitute Trustee) in the exercise
of the powers hereby granted or otherwise.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1. NOTICES. Any notice required or permitted to be given under
this Deed of Trust shall be given in accordance with Section 24 of the Security
Agreement.
SECTION 9.2. COVENANTS RUNNING WITH THE LAND. All Obligations contained
in this Deed of Trust are intended by Grantor, Beneficiary and Trustee to be,
and shall be construed as, covenants running with the Mortgaged Property. As
used herein, "Grantor" shall refer to the party named in the first paragraph of
this Deed of Trust and to any subsequent owner of all or any portion of the
Mortgaged Property. All Persons who may have or acquire an interest in the
Mortgaged Property shall be deemed to have notice of, and be bound by, the terms
of the Credit Agreement and the other Loan Documents; however, no such party
shall be entitled to any rights thereunder without the prior written consent of
Beneficiary.
SECTION 9.3. ATTORNEY-IN-FACT. Grantor hereby irrevocably appoints
Beneficiary and its successors and assigns, as its attorney-in-fact, which
agency is coupled with an interest and with full power of substitution, (a) to
execute and/or record any notices of completion, cessation of labor or any other
notices that Beneficiary deems appropriate to protect Beneficiary's interest, if
Grantor shall fail to do so within ten (10) days after written request by
Beneficiary, (b) upon the issuance of a deed pursuant to the foreclosure of this
Deed of Trust or the delivery of a deed in lieu of foreclosure, to execute all
instruments of assignment, conveyance or further assurance with respect to the
Leases, Rents, Deposit Accounts, Property Agreements, Tax Refunds, Proceeds,
Insurance and Condemnation Awards in favor of the grantee of any such deed and
as may be necessary or desirable for such purpose, (c) to prepare, execute and
file or record financing statements, continuation statements, applications for
registration and like papers necessary to create, perfect or preserve
Beneficiary's security interests and rights in or to any of the Mortgaged
Property, and (d) while any Event of Default exists, to perform any obligation
of Grantor hereunder, however: (1) Beneficiary shall not under any circumstances
be obligated to perform any obligation of Grantor; (2) any sums advanced by
Beneficiary in such performance shall be added to and included in the
Indebtedness and shall bear interest at the rate or rates at which interest is
then computed on the Indebtedness; (3) Beneficiary as such attorney-in-fact
shall only be accountable for such funds as are actually received by
Beneficiary; and (4) Beneficiary shall not be liable to Grantor or any other
person or entity for any failure to take any action which it is empowered to
take under this Section 9.3.
SECTION 9.4. SUCCESSORS AND ASSIGNS. This Deed of Trust shall be binding
upon and inure to the benefit of Beneficiary, Trustee, Grantor and the Lenders
and their respective successors and assigns. Grantor shall not, without the
prior written consent of Beneficiary, assign any rights, duties or obligations
hereunder.
SECTION 9.5. NO WAIVER. Any failure by Beneficiary, Trustee or the
Lenders to insist upon strict performance of any of the terms, provisions or
conditions of the Loan Documents
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shall not be deemed to be a waiver of same, and Beneficiary, Trustee or the
Lenders shall have the right at any time to insist upon strict performance of
all of such terms, provisions and conditions.
SECTION 9.6 CREDIT AGREEMENT. If any irreconcilable conflict exists
between this Deed of Trust and the Credit Agreement, the Credit Agreement shall
govern.
SECTION 9.7 RELEASE OR RECONVEYANCE. Upon payment in full of the
Indebtedness, performance in full of the Obligations, termination or expiration
of the Commitments and cancellation or expiration of the Letters of Credit, or
upon a sale or other disposition of the Mortgaged Property permitted by the
Credit Agreement, Beneficiary, at Grantor's expense, shall release the Liens and
security interests created by this Deed of Trust or reconvey the Mortgaged
Property to Grantor.
SECTION 9.8. WAIVER OF STAY, MORATORIUM AND SIMILAR RIGHTS. Grantor
agrees, to the full extent that it may lawfully do so, that it will not at any
time insist upon or plead or in any way take advantage of any stay, marshalling
of assets, extension, redemption or moratorium law now or hereafter in force and
effect so as to prevent or hinder the enforcement of the provisions of this Deed
of Trust or the Indebtedness or Obligations secured hereby, or any agreement
between Grantor and Beneficiary or any rights or remedies of Beneficiary,
Trustee or the Lenders.
SECTION 9.9. APPLICABLE LAW. The provisions of this Deed of Trust
regarding the creation, perfection and enforcement of the Liens and security
interests herein granted shall be governed by and construed under the laws of
the state in which the Mortgaged Property is located. All other provisions of
this Deed of Trust shall be governed by the laws of the State of New York
(including, without limitation, Section 5-1401 of the General Obligations Law of
the State of New York), without regard to conflicts of laws principles.
SECTION 9.10. HEADINGS. The Article, Section and Subsection titles
hereof are inserted for convenience of reference only and shall in no way alter,
modify or define, or be used in construing, the text of such Articles, Sections
or Subsections.
SECTION 9.11. ENTIRE AGREEMENT. This Deed of Trust and the other Loan
Documents and the Lender Hedge Agreements embody the entire agreement and
understanding between Grantor and Beneficiary and supersede all prior agreements
and understandings between such parties relating to the subject matter hereof
and thereof. Accordingly, this Deed of Trust, the other Loan Documents and the
Lender Hedge Agreements may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements of the parties. There are no
unwritten oral agreements between the parties.
SECTION 9.12. BENEFICIARY AS ADMINISTRATIVE AGENT; SUCCESSOR
ADMINISTRATIVE AGENTS.
(a) Beneficiary has been appointed to act as Administrative Agent
hereunder by the Lenders. Beneficiary shall have the right hereunder to make
demands, to give notices, to
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exercise or refrain from exercising any rights, and to take or refrain from
taking any action (including, without limitation, the release or substitution of
the Mortgaged Property) in accordance with the terms of the Credit Agreement,
any related agency agreement among Beneficiary and the Lenders (collectively, as
amended, supplemented or otherwise modified or replaced from time to time, the
"AGENCY DOCUMENTS") and this Deed of Trust. Grantor and all other persons shall
be entitled to rely on releases, waivers, consents, approvals, notifications and
other acts of Beneficiary, without inquiry into the existence of required
consents or approvals of the Lenders therefor.
(b) Beneficiary shall at all times be the same Person that is
Administrative Agent under the Agency Documents. Written notice of resignation
by Administrative Agent pursuant to the Agency Documents shall also constitute
notice of resignation as Beneficiary under this Deed of Trust. Appointment of a
successor Administrative Agent pursuant to the Agency Documents shall also
constitute appointment of a successor Beneficiary under this Deed of Trust. Upon
the acceptance of any appointment as Administrative Agent by a successor
Administrative Agent under the Agency Documents, that successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Beneficiary under this Deed of Trust, and
the retiring Beneficiary shall promptly (i) assign and transfer to such
successor Beneficiary all of its right, title and interest in and to this Deed
of Trust and the Mortgaged Property, and (ii) execute and deliver to such
successor Beneficiary such assignments and amendments and take such other
actions, as may be necessary or appropriate in connection with the assignment to
such successor Beneficiary of the Liens and security interests created under
this Deed of Trust. After any retired Administrative Agent's resignation
hereunder as Beneficiary, the provisions of this Deed of Trust and the Agency
Documents shall inure to its benefit as to any actions take or omitted to be
taken by it under this Deed of Trust while it was the Beneficiary hereunder.
SECTION 9.12. SEVERABILITY. If any provision of this Deed of Trust is or
becomes invalid, illegal or unenforceable, such provision shall be deemed
amended to conform to applicable laws so as to be valid and enforceable or, if
it cannot be so amended without materially altering the intention of the
parties, it shall be stricken and the remainder of this Deed of Trust shall
remain in full force and effect.
ARTICLE 10
LOCAL LAW PROVISIONS
[To Come]
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
XV(A)-18
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IN WITNESS WHEREOF, Grantor has on the date set forth in the
acknowledgement hereto, effective as of the date first above written, caused
this instrument to be duly EXECUTED AND DELIVERED by authority duly given.
GRANTOR: ,
----------------------------------
a
---------------------------------
By:
-------------------------------
Name:
------------------------
Title:
------------------------
XV(A)-19
271
State of ______________ )
) ss.
County of _____________ )
On ____________________, before me, personally appeared ____________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s) or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
[SEAL]
-----------------------------------
My Commission expires: Notary Public
-----------------------------------
EXHIBIT A
LEGAL DESCRIPTION
Legal Description of premises located at:
-----------------------------------
-----------------------------------
[SEE ATTACHED PAGE(s) FOR LEGAL DESCRIPTION]
N-1
272
EXHIBIT B
SUBJECT LEASE
273
EXHIBIT XV(B)
FORM OF MORTGAGE
MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS
AND LEASES AND FIXTURE FILING ([STATE])
BY AND FROM
___________________________, "MORTGAGOR"
TO
CREDIT SUISSE FIRST BOSTON,
IN ITS CAPACITY AS ADMINISTRATIVE AGENT, "MORTGAGEE"
DATED AS OF __________, 2001
LOCATION:
MUNICIPALITY:
COUNTY:
STATE:
THE SECURED PARTY (MORTGAGEE) DESIRES THIS FIXTURE FILING
TO BE INDEXED AGAINST THE RECORD OWNER OF THE REAL ESTATE
DESCRIBED HEREIN
PREPARED BY, RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO:
O'MELVENY & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
ATTENTION: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇
FILE #185,550-059
274
MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS
AND LEASES AND FIXTURE FILING ([STATE])
THIS MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND LEASES
AND FIXTURE FILING ([STATE]) (this "MORTGAGE") is dated as of __________, 2001
by and from ___________________________, a ______________________ ("MORTGAGOR"),
whose address is , to CREDIT SUISSE FIRST BOSTON, as Administrative Agent (in
such capacity, "ADMINISTRATIVE AGENT") for the lenders party from time to time
to the Credit Agreement (defined below) and the Hedge Providers (defined below)
(all such lenders, together with their respective successors and assigns, and
the Hedge Providers are collectively referred to as the "LENDERS"), having an
address at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (Administrative Agent,
together with its successors and assigns, "MORTGAGEE").
RECITALS
A. Administrative Agent and the Lenders have entered into a
Credit Agreement dated as of September __, 2001, with The ▇▇▇▇▇▇▇▇ Group, Inc.,
a Delaware corporation ("BORROWER") pursuant to which Administrative Agent and
the Lenders have made certain commitments, subject to the terms and conditions
set forth therein, to extend certain credit facilities to the Borrower (said
Credit Agreement, as it may hereafter be amended, restated, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"). Initially
capitalized terms used in this Mortgage without definition are defined in the
Credit Agreement.
B. Borrower may from time to time enter, or may from time to time
have entered, into one or more Hedge Agreements (collectively, the "LENDER HEDGE
AGREEMENTS") with one or more Persons that are Lenders or Affiliates of Lenders
(in such capacity, collectively, the "HEDGE PROVIDERS") at the time such Lender
Hedge Agreements are entered into in accordance with the terms of the Credit
Agreement.
C. [Mortgagor has executed and delivered that certain Subsidiary
Guaranty dated of even date herewith (as the same may hereafter be amended,
restated, supplemented or otherwise modified from time to time, the "SUBSIDIARY
GUARANTY") in favor of Mortgagee and the Lenders, pursuant to which Mortgagor
has guaranteed the prompt payment and performance when due of all of the
obligations of Borrower under the Credit Agreement and other Loan Documents to
which it is a party and the obligations of Borrower under the Lender Hedge
Agreements, including the obligation of Borrower to make payments thereunder in
the event of early termination thereof.] (1)
D. Pursuant to the Credit Agreement, in order to induce
Administrative Agent and the Lenders to make Loans and other extensions of
credit under the Credit Agreement and Hedge Providers to enter into the Lender
Hedge Agreements, Mortgagor has agreed to execute and deliver this Mortgage.
----------
(1) To be modified if the Mortgagor is Borrower.
XV(B)-1
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ARTICLE 1
DEFINITIONS
SECTION 1.1. DEFINITIONS. As used herein, the following terms shall have
the following meanings:
(a) "INDEBTEDNESS": (1) All indebtedness of Borrower to Mortgagee
and the Lenders, the full and prompt payment of which has been guaranteed by
Mortgagor 1 pursuant to the Subsidiary Guaranty, including, without limitation,
the sum of all (a) principal, interest and other amounts evidenced or secured by
the Loan Documents and the Lender Hedge Agreements, and (b) principal, interest
and other amounts which may hereafter be loaned by Mortgagee or any of the
Lenders under or in connection with the Credit Agreement, any of the other Loan
Documents or the Lender Hedge Agreements, whether evidenced by a promissory note
or other instrument which, by its terms, is secured hereby, and (2) all other
indebtedness, obligations and liabilities now or hereafter existing of any kind
of Mortgagor to Mortgagee or any of the Lenders under documents which recite
that they are intended to be secured by this Mortgage. The Credit Agreement
contains a revolving credit facility which permits Borrower to borrow certain
principal amounts, repay all or a portion of such principal amounts, and
reborrow the amounts previously paid to the Lenders, all upon satisfaction of
certain conditions stated in the Credit Agreement. This Mortgage secures all of
Mortgagor's obligations with respect to advances and re-advances under the
revolving credit feature of the Credit Agreement.
(b) "MORTGAGED PROPERTY": All of Mortgagor's right, title and
interest in and to the following: (1) the fee interest in the real property
described on Exhibit A and the leasehold interest in the real property described
in Exhibit A created by the Subject Lease, if any (hereafter defined) together
with any greater estate therein as hereafter may be acquired by Mortgagor (the
"LAND") together with all rights, privileges, tenements, hereditaments,
rights-of-way, easements, appendages and appurtenances appertaining to the
foregoing and all interests now or in the future arising in respect of,
benefiting or otherwise relating to the Land, including, without limitation,
easements, rights-of-way and development rights, including all right, title and
interest now owned or hereafter acquired by Mortgagor in and to any land lying
within the right of way of any street, open or proposed, adjoining the Land, and
any and all sidewalks, alleys, driveways, and strips and gores of land adjacent
to or used in connection with the Land (which, together with the Land, are
collectively referred to as the "REAL PROPERTY"); (2) all improvements now owned
or hereafter acquired by Mortgagor, now or at any time situated, placed or
constructed upon the Land (the "IMPROVEMENTS"); (3) all fixtures, machinery,
appliances, goods, building or other materials, motors, generators, conduits,
switchboards, communications apparatus, equipment, (including, without
limitation, audio and/or video recording equipment, transmitting towers,
transmitters and broadcasting equipment and all machinery, equipment, engines,
appliances and fixtures for generating or distributing air, water, heat,
electricity, light, sewage, fuel or refrigeration, or for ventilating or
sanitary purposes, the exclusion of vermin or insects, or the removal of dust,
refuse or garbage), and all extensions, additions, accessions, improvements,
betterments, renewals, substitutions, and replacements to any of the foregoing,
which, to the fullest extent permitted by law, shall be conclusively deemed
fixtures and improvements and a part of the real property hereby encumbered (the
"FIXTURES") (the Real Property, Improvements and Fixtures are collectively
referred to as the "PREMISES"); (4) all personal property, goods,
XV(B)-2
276
equipment and supplies used in the commercial operations on the Premises,
including communication systems, visual and electronic surveillance systems and
transportation systems and all other personal property of any kind or character,
including such items of personal property as defined in the UCC (defined below),
now or hereafter owned or leased by Mortgagor or in which Mortgagor has any
rights or interest and located in or on, or attached to, or used or intended to
be used or which are now or may hereafter be appropriated for use on or in
connection with the operation of the Premises, and all extensions, additions,
accessions, improvements, betterments, renewals, and including everything in
clause (3) not permitted to be deemed fixtures and improvements, substitutions,
and replacements to any of the foregoing (the "PERSONALTY"); (5) all reserves,
escrows or impounds required under the Credit Agreement or other Loan Documents
and all deposit accounts maintained by Mortgagor with respect to the Mortgaged
Property (the "DEPOSIT ACCOUNTS"); (6) all leases, licenses, concessions,
occupancy agreements or other agreements (written or oral, now or at any time in
effect) which grant to any Person a possessory interest in, or the right to use,
all or any part of the Mortgaged Property, together with all related security
and other deposits (the "LEASES"); (7) all of the rents, revenues, royalties,
income, proceeds, profits, security and other types of deposits, and other
benefits paid or payable by parties to the Leases for using, leasing, licensing,
possessing, operating from, residing in, selling or otherwise enjoying the
Mortgaged Property (the "RENTS"); (8) all other agreements, such as construction
contracts, architects' agreements, engineers' contracts, utility contracts,
maintenance agreements, management agreements, service contracts, listing
agreements, guaranties, warranties, permits, licenses, certificates and
entitlements in any way relating to the construction, use, occupancy, operation,
maintenance, enjoyment or ownership of the Mortgaged Property (the "PROPERTY
AGREEMENTS"); (9) all property tax refunds (the "TAX REFUNDS"); (10) all
accessions, replacements and substitutions for any of the foregoing and all
proceeds thereof (the "PROCEEDS"); (11) all insurance policies, unearned
premiums therefor and proceeds from such policies covering any of the above
property now or hereafter acquired by Mortgagor (the "INSURANCE"); and (12) all
awards, damages, remunerations, reimbursements, settlements or compensation
heretofore made or hereafter to be made by any governmental authority pertaining
to the Premises or Personalty (the "CONDEMNATION AWARDS"). As used in this
Mortgage, the term "Mortgaged Property" means all or, where the context permits
or requires, any portion of the above or any interest therein.
(c) "OBLIGATIONS": All of the agreements, covenants, conditions,
warranties, representations and other obligations of Mortgagor under the
Subsidiary Guaranty and the other Loan Documents to which it is a party.1
(d) "SUBJECT LEASE": All of the leases described on Exhibit B
attached hereto and incorporated herein by this reference.
(e) "UCC": The Uniform Commercial Code in the [State]. If the
creation, perfection and enforcement of any security interest herein granted is
governed by the laws of a state other than [State], then, as to the matter in
question, the term "UCC" means the UCC (as defined in the Credit Agreement) in
effect in that state.
XV(B)-3
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ARTICLE 2
GRANT
SECTION 2.1. GRANT. To secure the full and timely payment and
performance of the Obligations, Mortgagor GRANTS, BARGAINS, ASSIGNS, SELLS and
CONVEYS, to Mortgagee the Mortgaged Property, subject, however, to the Permitted
Encumbrances, TO HAVE AND TO HOLD the Mortgaged Property, and Mortgagor does
hereby bind itself, its successors and assigns to WARRANT AND FOREVER DEFEND the
title to the Mortgaged Property unto Mortgagee.
ARTICLE 3
WARRANTIES, REPRESENTATIONS AND COVENANTS
Mortgagor warrants, represents and covenants to Mortgagee and
Lenders as follows:
SECTION 3.1. TITLE TO MORTGAGED PROPERTY AND LIEN OF THIS INSTRUMENT.
Mortgagor has (i) good, sufficient and legal title to the Premises; (ii) valid
leasehold interests in the Subject Lease and in any leasehold interest in the
Personalty; and (iii) good title to all Personalty and to all other Mortgaged
Property free and clear of any Liens except for the Permitted Encumbrances. This
Mortgage creates valid, enforceable First Priority Liens and security interests
against the Mortgaged Property.
SECTION 3.2. FIRST LIEN STATUS. Mortgagor shall preserve and protect the
First Priority Lien and security interest status of this Mortgage and the other
Loan Documents. If any Lien or security interest other than the Permitted
Encumbrances is asserted against the Mortgaged Property, Mortgagor shall
promptly, and at its expense, (a) give Mortgagee a detailed written notice of
such Lien or security interest (including origin, amount and other terms), and
(b) pay the underlying claim in full or take such other action so as to cause it
to be released or contest the same in compliance with the requirements of the
Credit Agreement (including the requirement of providing a bond or other
security satisfactory to Mortgagee).
SECTION 3.3. PAYMENT AND PERFORMANCE. Mortgagor shall pay and perform
the Obligations in full when they are required to be paid and performed.
SECTION 3.4. REPLACEMENT OF FIXTURES AND PERSONALTY. Except for the sale
of Inventory in the ordinary course of business and sales permitted pursuant to
subsection 7.7 of the Credit Agreement, Mortgagor shall not, without the prior
written consent of Mortgagee, permit any of the Fixtures or Personalty owned or
leased by Mortgagor to be removed at any time from the Real Property or
Improvements, unless the removed item is removed temporarily for maintenance and
repair or, if removed permanently, is permitted to be removed by the Credit
Agreement.
XV(B)-4
278
SECTION 3.5. INSPECTIONS.
(a) Inspections and Meeting. Mortgagor shall permit (i) any
authorized representatives designated by Mortgagee to visit and inspect any of
the Mortgaged Property, including its financial and accounting records, and to
make copies and take extracts therefrom, and to discuss its finances and
accounts with its officers and independent public accountants (provided that
Mortgagor may, if it so chooses, be present at or participate in any such
discussion), all upon reasonable notice and at such reasonable times during
normal business hours and as often as may be reasonably requested.
(b) Environmental Inspection. Mortgagor agrees that upon a
reasonable belief by Mortgagee that Mortgagor has breached any covenant or
representation with respect to environmental matters or that there has been a
material violation of Environmental Laws at the Premises or by Mortgagor,
Mortgagee may conduct its own reasonable investigation of such matter at the
Premises and Mortgagor agrees to use its best efforts to obtain permission for
Mortgagee's professional consultant to conduct its own investigation of any such
matter at the Premises. Mortgagor hereby grants to Mortgagee and its agents,
employees, consultants and contractors the right to enter into or on to the
Premises upon reasonable notice to Mortgagor to perform such assessments on such
property as are reasonably necessary to conduct such a review and/or
investigation.
SECTION 3.6. OTHER COVENANTS. All of the covenants of Borrower to the
extent applicable to the Mortgaged Property in the Credit Agreement are
incorporated herein by this reference and are hereby made by Mortgagor with
respect to the Mortgaged Property. Such covenants, together with covenants in
this Article 3, are covenants running with the land.
SECTION 3.7. CONDEMNATION AWARDS AND INSURANCE PROCEEDS.
(a) Condemnation Awards. Mortgagor assigns all awards and
compensation to which it is entitled for any condemnation or other taking, or
any purchase in lieu thereof, to Mortgagee and authorizes Mortgagee to collect
and receive such awards and compensation and to give proper receipts and
acquittances therefor in accordance with the terms of the Credit Agreement.
(b) Insurance Proceeds. Mortgagor assigns to Mortgagee all
proceeds of any insurance policies insuring against loss or damage to the
Mortgaged Property. Mortgagor authorizes Mortgagee to collect and receive such
proceeds and authorizes and directs the issuer of each of such insurance
policies to make payment for all such losses directly to Mortgagee, instead of
to Mortgagor and Mortgagee jointly.
SECTION 3.8. OTHER PROPERTY RIGHTS. All easements, leasehold, and other
property interests, all utility and other services (including gas, electrical,
telephone, water and sewage services and facilities), means of transportation,
facilities, other materials and other rights that are reasonably necessary for
the operation of the Mortgaged Property in accordance with applicable
requirements of law have been procured or are commercially available to the
Mortgaged Property at commercially reasonable rates and, to the extent
appropriate,
XV(B)-5
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arrangements have been made on commercially reasonable terms for such easements,
interests, services, means of transportation, facilities, materials, and rights.
The Land is taxed separately without regard to any other property and has been
subdivided from all other property in compliance with applicable laws. No
subdivision or other approval is necessary with respect to the Premises in order
for Mortgagor to mortgage, convey, or otherwise deal with the Premises as a
separate lot or parcel.
SECTION 3.9. PEACEABLE POSSESSION. Mortgagor's possession of the
Mortgaged Property has been peaceable and undisturbed and, to the best of the
Mortgagor's knowledge, after due inquiry, the title thereto has never been
disputed or questioned, and the Mortgagor does not know of any facts by reason
of which any adverse claim to any part of the Mortgaged Property or to any
undivided interest therein might be set up or made.
SECTION 3.10. TAXES.
(a) Mortgagor shall pay, when due and prior to delinquency, all
Taxes imposed or levied by any Government Authority which create a Lien upon the
Mortgaged Property or any part thereof (all of which Taxes are hereinafter
referred to as "IMPOSITIONS"). If by law any such Imposition is payable, or may
at the option of the taxpayer be paid, in installments, Mortgagor may pay the
same, together with any accrued interest on the unpaid balance of such
Imposition, in installments as the same become due and before any fine, penalty,
interest or cost may be added thereto for the nonpayment of any such installment
and interest. If at any time after the date hereof there shall be assessed or
imposed a license fee, tax or assessment on Mortgagee which is measured by or
based in whole or in part upon the amount of the outstanding Obligations, then
all such Taxes shall be deemed to be included within the term "Impositions" as
defined herein, and Mortgagor shall pay and discharge the same as herein
provided with respect to the payment of Impositions, or, if Mortgagor shall not
be permitted by law to pay and discharge such Imposition either directly or
indirectly, then, at the option of Mortgagee, all obligations secured hereby,
together with all interest thereon, shall become immediately due and payable.
(b) Subject to the provisions of Section 3.10(c), upon
Mortgagee's request, Mortgagor shall furnish to Mortgagee within 30 days after
the date upon which any Imposition is due and payable, official receipts of the
appropriate taxing authority, or other proof satisfactory to Mortgagee,
evidencing the payment thereof.
(c) Mortgagor has the right, before any delinquency occurs, to
contest or object to the amount or validity of any Imposition by appropriate
legal proceedings, but this right shall not be deemed or construed in any way as
relieving, modifying or postponing Mortgagor's obligation to pay any such
Imposition at the time and in the manner provided herein, unless (i) Mortgagor
has given prior written notice to Mortgagee of Mortgagor's intent so to contest
or object to an Imposition; (ii) Mortgagor has demonstrated to Mortgagee's
satisfaction that the legal proceedings shall conclusively operate to prevent
the sale of the Mortgaged Property, or any part thereof, to satisfy such
Imposition prior to a final determination of such proceedings; or (iii) such
reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP or by the appropriate taxing authority shall have been
provided.
XV(B)-6
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SECTION 3.11. UTILITIES. Mortgagor shall pay, when due, all utility
charges incurred by Mortgagor for the benefit of the Mortgaged Property, or
which may become a charge or Lien against the Mortgaged Property, for gas,
electricity, water, sewer and all other utility services furnished to the
Mortgaged Property, and all other assessments or charges of a similar nature,
whether public or private, affecting the Mortgaged Property or any portion
thereof, whether or not such assessments or charges are Liens thereon.
SECTION 3.12. MAINTENANCE OF PROPERTIES. Mortgagor will maintain or
cause to be maintained in good repair, working order and condition, ordinary
wear and tear excepted, all material properties used or useful in the business
of Mortgagor (including all Intellectual Property) and from time to time will
make or cause to be made all appropriate repairs, renewals and replacements
thereof.
ARTICLE 4
LEASEHOLD PROVISIONS
SECTION 4.1. REPRESENTATIONS; WARRANTIES; COVENANTS. Mortgagor hereby
represents, warrants and covenants that:
(a)(1) The Subject Lease is unmodified and in full force and
effect, (2) all rent and other charges therein have been paid to the extent they
are payable to the date hereof, (3) Mortgagor enjoys the quiet and peaceful
possession of the property demised thereby, (4) to the best of its knowledge,
Mortgagor is not in default under any of the terms thereof and there are no
circumstances which, with the passage of time or the giving of notice or both,
would constitute an event of default thereunder, (5) to the best of Mortgagor's
knowledge, the lessor thereunder is not in default under any of the terms or
provisions thereof on the part of the lessor to be observed or performed;
(b) Mortgagor shall promptly pay, when due and payable, the rent
and other charges payable pursuant to the Subject Lease, and will timely perform
and observe all of the other terms, covenants and conditions required to be
performed and observed by Mortgagor as lessee under the Subject Lease;
(c) Mortgagor shall notify Mortgagee in writing of any default by
Mortgagor in the performance or observance of any terms, covenants or conditions
on the part of Mortgagor to be performed or observed under the Subject Lease
within three (3) days after Mortgagor knows of such default;
(d) Mortgagor shall, immediately upon receipt thereof, deliver a
copy of each notice given to Mortgagor by the lessor pursuant to the Subject
Lease and promptly notify Mortgagee in writing of any default by the lessor in
the performance or observance of any of the terms, covenants or conditions on
the part of the lessor to be performed or observed thereunder;
(e) Unless required under the terms of the Subject Lease,
Mortgagor shall not, without the prior written consent of Mortgagee (which may
be granted or withheld in
XV(B)-7
281
Mortgagee's sole and absolute discretion) terminate, modify or surrender the
Subject Lease, and any such attempted termination, modification or surrender
without Mortgagee's written consent shall be void; and
(f) Mortgagor shall, within twenty (20) days after written
request from Mortgagee, use its best efforts to obtain from the lessor and
deliver to Mortgagee a certificate setting forth the name of the tenant
thereunder and stating that the Subject Lease is in full force and effect, is
unmodified or, if the Subject Lease has been modified, the date of each
modification (together with copies of each such modification), that no notice of
termination thereon has been served on Mortgagor, stating that no default or
event which with notice or lapse of time (or both) would become a default is
existing under the Subject Lease, stating the date to which rent has been paid,
and specifying the nature of any defaults, if any, and containing such other
statements and representations as may be requested by Mortgagee.
SECTION 4.2. NO MERGER. So long as any of the Indebtedness or the
Obligations remain unpaid or unperformed, the fee title to and the leasehold
estate in the premises subject to the Subject Lease shall not merge but shall
always be kept separate and distinct notwithstanding the union of such estates
in the lessor or Mortgagor, or in a third party, by purchase or otherwise. If
Mortgagor acquires the fee title or any other estate, title or interest in the
property demised by the Subject Lease, or any part thereof, the Lien of this
Mortgage shall attach to, cover and be a Lien upon such acquired estate, title
or interest and the same shall thereupon be and become a part of the Mortgaged
Property with the same force and effect as if specifically encumbered herein.
Mortgagor agrees to execute all instruments and documents that Mortgagee may
reasonably require to ratify, confirm and further evidence the Lien of this
Mortgage on the acquired estate, title or interest. Furthermore, Mortgagor
hereby appoints Mortgagee as its true and lawful attorney-in-fact to execute and
deliver, following an Event of Default, all such instruments and documents in
the name and on behalf of Mortgagor. This power, being coupled with an interest,
shall be irrevocable as long as any portion of the Indebtedness remains unpaid.
SECTION 4.3. MORTGAGEE AS LESSEE. If the Subject Lease is terminated
prior to the natural expiration of its term due to default by Mortgagor or any
tenant thereunder, and if Mortgagee or its designee acquires from the lessor a
new lease of the premises, Mortgagor shall have no right, title or interest in
or to such new lease or the leasehold estate created thereby, or renewal
privileges therein contained.
SECTION 4.4. NO ASSIGNMENT. If this Mortgage constitutes a prohibited
collateral assignment of the Subject Lease under the terms of the Subject Lease,
then the assignment of the Subject Lease in this Mortgage will be deemed
conditioned upon the receipt of any consent expressly required under the Subject
Lease and Mortgagee and Lenders have no liability or obligation thereunder by
reason of its acceptance of this Mortgage. Mortgagee and Lenders will be liable
for the obligations of the tenant arising out of the Subject Lease for only that
period of time for which Mortgagee or Lenders are in possession of the Premises
or have acquired, by foreclosure or otherwise, and are holding all of
Mortgagor's right, title and interest therein.
XV(B)-8
282
ARTICLE 5
DEFAULT AND FORECLOSURE
SECTION 5.1. REMEDIES. If an Event of Default exists, Mortgagee may, at
Mortgagee's election, exercise any or all of the following rights, remedies and
recourses:
(a) Acceleration. Declare the Indebtedness and/or Obligations to
be immediately due and payable, without further notice, presentment, protest,
notice of intent to accelerate, notice of acceleration, demand or action of any
nature whatsoever (each of which hereby is expressly waived by Mortgagor),
whereupon the same shall become immediately due and payable.
(b) Entry on Mortgaged Property. Enter the Mortgaged Property and
take exclusive possession thereof and of all books, records and accounts
relating thereto or located thereon. If Mortgagor remains in possession of the
Mortgaged Property after an Event of Default and without Mortgagee's prior
written consent, Mortgagee may invoke any legal remedies to dispossess
Mortgagor.
(c) Operation of Mortgaged Property. Hold, lease, develop,
manage, operate or otherwise use the Mortgaged Property upon such terms and
conditions as Mortgagee may deem reasonable under the circumstances (making such
repairs, alterations, additions and improvements and taking other actions, from
time to time, as Mortgagee deems necessary or desirable), and apply all Rents
and other amounts collected by Mortgagee in connection therewith in accordance
with the provisions of Section 5.7.
(d) Foreclosure and Sale. Institute proceedings for the complete
foreclosure of this Mortgage, either by judicial action or by power of sale, in
which case the Mortgaged Property may be sold for cash or credit in one or more
parcels as Mortgagee may determine. With respect to any notices required or
permitted under the UCC, Mortgagor agrees that five (5) days' prior written
notice shall be deemed commercially reasonable. At any such sale by virtue of
any judicial proceedings, power of sale, or any other legal right, remedy or
recourse, the title to and right of possession of any such property shall pass
to the purchaser thereof, and to the fullest extent permitted by law, Mortgagor
shall be completely and irrevocably divested of all of its right, title,
interest, claim, equity, equity of redemption, and demand whatsoever, either at
law or in equity, in and to the property sold and such sale shall be a perpetual
bar both at law and in equity against Mortgagor, and against all other Persons
claiming or to claim the property sold or any part thereof, by, through or under
Mortgagor. Mortgagee or any of the Lenders may be a purchaser at such sale. If
Mortgagee is the highest bidder, Mortgagee may credit the portion of the
purchase price that would be distributed to Mortgagee against the Indebtedness
in lieu of paying cash. In the event this Mortgage is foreclosed by judicial
action, appraisement of the Mortgaged Property is waived.
(e) Receiver. Make application to a court of competent
jurisdiction for, and obtain from such court as a matter of strict right and
without notice to Mortgagor or regard to the adequacy of the Mortgaged Property
for the repayment of the Indebtedness, the appointment of a receiver of the
Mortgaged Property, and Mortgagor irrevocably consents to such appointment.
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Any such receiver shall have all the usual powers and duties of receivers in
similar cases, including the full power to rent, maintain and otherwise operate
the Mortgaged Property upon such terms as may be approved by the court, and
shall apply such Rents in accordance with the provisions of Section 5.7.
(f) Other. Exercise all other rights, remedies and recourses
granted under the Loan Documents or otherwise available at law or in equity.
SECTION 5.2. SEPARATE SALES. The Mortgaged Property may be sold in one
or more parcels and in such manner and order as Mortgagee in its sole discretion
may elect; the right of sale arising out of any Event of Default shall not be
exhausted by any one or more sales.
SECTION 5.3. REMEDIES CUMULATIVE, CONCURRENT AND NONEXCLUSIVE. Mortgagee
and the Lenders shall have all rights, remedies and recourses granted in the
Loan Documents and available at law or equity (including the UCC), which rights
(a) shall be cumulated and concurrent, (b) may be pursued separately,
successively or concurrently against Mortgagor or others obligated under the
Loan Documents, or against the Mortgaged Property, or against any one or more of
them, at the sole discretion of Mortgagee or the Lenders, as the case may be,
(c) may be exercised as often as occasion therefor shall arise, and the exercise
or failure to exercise any of them shall not be construed as a waiver or release
thereof or of any other right, remedy or recourse, and (d) are intended to be,
and shall be, nonexclusive. No action by Mortgagee or the Lenders in the
enforcement of any rights, remedies or recourses under the Loan Documents or
otherwise at law or equity shall be deemed to cure any Event of Default.
SECTION 5.4. RELEASE OF AND RESORT TO COLLATERAL. Mortgagee may release,
regardless of consideration and without the necessity for any notice to or
consent by the holder of any subordinate Lien on the Mortgaged Property, any
part of the Mortgaged Property without, as to the remainder, in any way
impairing, affecting, subordinating or releasing the Lien or security interest
created in or evidenced by the Loan Documents or their status as a first and
prior Lien and security interest in and to the Mortgaged Property. For payment
of the Indebtedness, Mortgagee may resort to any other security in such order
and manner as Mortgagee may elect.
SECTION 5.5. WAIVER OF REDEMPTION, NOTICE AND MARSHALLING OF ASSETS. To
the fullest extent permitted by law, Mortgagor hereby irrevocably and
unconditionally waives and releases (a) all benefit that might accrue to
Mortgagor by virtue of any present or future statute of limitations or law or
judicial decision exempting the Mortgaged Property from attachment, levy or sale
on execution or providing for any stay of execution, exemption from civil
process, redemption or extension of time for payment, (b) all notices of any
Event of Default or of any election by Mortgagee or the Lenders to exercise or
the actual exercise of any right, remedy or recourse provided for under the Loan
Documents, and (c) any right to a marshalling of assets or a sale in inverse
order of alienation.
SECTION 5.6. DISCONTINUANCE OF PROCEEDINGS. If Mortgagee or the Lenders
shall have proceeded to invoke any right, remedy or recourse permitted under the
Loan Documents and shall thereafter elect to discontinue or abandon it for any
reason, Mortgagee or the Lenders, as the case may be, shall have the unqualified
right to do so and, in such an event, Mortgagor,
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Mortgagee, and the Lenders shall be restored to their former positions with
respect to the Indebtedness, the Obligations, the Loan Documents, the Mortgaged
Property and otherwise, and the rights, remedies, recourses and powers of
Mortgagee and the Lenders shall continue as if the right, remedy or recourse had
never been invoked, but no such discontinuance or abandonment shall waive any
Event of Default which may then exist or the right of Mortgagee or the Lenders
thereafter to exercise any right, remedy or recourse under the Loan Documents
for such Event of Default.
SECTION 5.7. APPLICATION OF PROCEEDS. The proceeds of any sale of, and
the Rents and other amounts generated by the holding, leasing, management,
operation or other use of the Mortgaged Property, shall be applied by Mortgagee
or the Lenders (or the receiver, if one is appointed) in the following order
unless otherwise required by applicable law:
(a) to the payment of the costs and expenses of taking possession
of the Mortgaged Property and of holding, using, leasing, repairing, improving
and selling the same, including, without limitation (1) trustee's and receiver's
fees and expenses, including the repayment of the amounts evidenced by any
receiver's certificates, (2) court costs, (3) attorneys' and accountants' fees
and expenses, and (4) costs of advertisement;
(b) to the payment of the Indebtedness and performance of the
Obligations in such manner and order of preference as Mortgagee in its sole
discretion may determine; and
(c) the balance, if any, to the payment of the Persons legally
entitled thereto.
SECTION 5.8. OCCUPANCY AFTER FORECLOSURE. Any sale of the Mortgaged
Property or any part thereof in accordance with Section 5.1(d) will divest all
right, title and interest of Mortgagor in and to the property sold. Subject to
applicable law, any purchaser at a foreclosure sale will receive immediate
possession of the property purchased. If Mortgagor retains possession of such
property or any part thereof subsequent to such sale, Mortgagor will be
considered a tenant at sufferance of the purchaser, and will, if Mortgagor
remains in possession after demand to remove, be subject to eviction and
removal, forcible or otherwise, with or without process of law.
SECTION 5.9. ADDITIONAL ADVANCES AND DISBURSEMENTS; COSTS OF
ENFORCEMENT.
(a) If any Event of Default exists, Mortgagee and each of the
Lenders shall have the right, but not the obligation, to cure such Event of
Default in the name and on behalf of Mortgagor. All sums advanced and expenses
incurred at any time by Mortgagee or any Lender under this Section 5.9, or
otherwise under this Mortgage or any of the other Loan Documents or applicable
law, shall bear interest from the date that such sum is advanced or expense
incurred, to and including the date of reimbursement, computed at the rate or
rates at which interest is then computed on the Indebtedness, and all such sums,
together with interest thereon, shall be secured by this Mortgage.
(b) Mortgagor shall pay all expenses (including reasonable
attorneys' fees and expenses) of or incidental to the perfection and enforcement
of this Mortgage and the other Loan
XV(B)-11
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Documents, or the enforcement, compromise or settlement of the Indebtedness or
any claim under this Mortgage and the other Loan Documents, and for the curing
thereof, or for defending or asserting the rights and claims of Mortgagee in
respect thereof, by litigation or otherwise.
SECTION 5.10. NO MORTGAGEE IN POSSESSION. Neither the enforcement of any
of the remedies under this Article 5, the assignment of the Rents and Leases
under Article 6, the security interests under Article 7, nor any other remedies
afforded to Mortgagee or the Lenders under the Loan Documents, at law or in
equity shall cause Mortgagee or any Lender to be deemed or construed to be a
mortgagee in possession of the Mortgaged Property, to obligate Mortgagee or any
Lender to lease the Mortgaged Property or attempt to do so, or to take any
action, incur any expense, or perform or discharge any obligation, duty or
liability whatsoever under any of the Leases or otherwise.
SECTION 5.11. ACTIONS BY MORTGAGEE TO PRESERVE THE MORTGAGED PROPERTY.
If Mortgagor fails to make any payment or do any act as and in the manner
provided in this Mortgage or in any of the other Loan Documents, Mortgagee, in
its sole and absolute discretion, without obligation so to do and without notice
to or demand upon Mortgagor and without releasing Mortgagor from any obligation,
may make such payment or do such act in such manner and to such extent as
Mortgagee may deem necessary to protect the security hereof. In connection
therewith (without limiting Mortgagee's general powers), Mortgagee shall have
and is hereby given the right, but not the obligation, (i) to enter upon and
take possession of the Mortgaged Property; (ii) to make additions, alterations,
repairs and Improvements to the Mortgaged Property which it may consider
necessary or proper to keep the Mortgaged Property in good condition and repair;
(iii) to appear and participate in any action or proceeding which affects or may
affect the security hereof or the rights or powers of Mortgagee; (iv) to pay,
purchase, contest or compromise any encumbrance, claim, charge, Lien or debt
which, in Mortgagee's judgment, may affect or appear to affect the security of
this Mortgage; and (v) in exercising such powers, to employ counsel or other
necessary or desirable experts or consultants. Mortgagor shall, immediately upon
demand therefor by Mortgagee, pay all costs and expenses incurred by Mortgagee
in connection with the exercise by Mortgagee of the foregoing rights, including
cost of evidence of title, court costs, appraisals, surveys, and reasonable
attorneys' fees, together with interest thereon from the date incurred at the
interest rate then in effect under any Note. All such costs and expenses
together with interest thereon shall be secured by this Mortgage.
SECTION 5.12. DUE ON SALE. In order to induce Mortgagee and Lenders to
make the Loans and other extensions of credit under the Credit Agreement and the
Hedge Providers to enter into the Lender Hedge Agreement, Mortgagor agrees that,
except as otherwise expressly permitted pursuant to subsection 7.7 of the Credit
Agreement, in the event of any "TRANSFER" of the Mortgaged Property without the
prior written consent of Mortgagee, Mortgagee has the absolute right at its
option, without prior demand or notice, to declare all sums secured by this
Mortgage immediately due and payable. Consent to one such transaction will not
be deemed to be a waiver of the right to require consent to future or successive
transactions. Mortgagee may grant or deny such consent in its sole discretion
and, if consent is given, any such transfer will be subject to this Mortgage,
and any such transferee shall assume all obligations hereunder and agree to be
bound by all provisions contained herein. Such assumption will not, however,
XV(B)-12
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release Mortgagor, Borrower or any maker or guarantor of the Obligations from
any liability thereunder without the prior written consent of Mortgagee and
Lenders. As used herein, "TRANSFER" includes the direct or indirect sale,
agreement to sell, transfer, conveyance, pledge, collateral assignment or
hypothecation of the Mortgaged Property, or any portion thereof or interest
therein, whether voluntary, involuntary, by operation of law or otherwise, the
execution of any installment land sale contract or similar instrument affecting
all or a portion of the Mortgaged Property, or the lease of all or substantially
all of the Mortgaged Property. The term "TRANSFER" also includes a Change in
Control in Borrower or Mortgagor.
ARTICLE 6
ASSIGNMENT OF RENTS AND LEASES
SECTION 6.1. ASSIGNMENT. In furtherance of and in addition to the
assignment made by Mortgagor in Section 2.1 of this Mortgage, Mortgagor hereby
absolutely and unconditionally assigns, sells, transfers and conveys to
Mortgagee all of its right, title and interest in and to all Leases, whether now
existing or hereafter entered into, and all of its right, title and interest in
and to all Rents. This assignment is an absolute assignment and not an
assignment for additional security only. So long as no Event of Default shall
have occurred and be continuing, Mortgagor shall have a revocable license from
Mortgagee to exercise all rights extended to the landlord under the Leases,
including the right to receive and collect all Rents and to hold the Rents in
trust for use in the payment and performance of the Obligations and to otherwise
use the same. The foregoing license is granted subject to the conditional
limitation that no Event of Default shall have occurred and be continuing. Upon
the occurrence and during the continuance of an Event of Default, whether or not
legal proceedings have commenced, and without regard to waste, adequacy of
security for the Obligations or solvency of Mortgagor, the license herein
granted shall automatically expire and terminate, without notice to Mortgagor by
Mortgagee (any such notice being hereby expressly waived by Mortgagor to the
extent permitted by applicable law).
SECTION 6.2. PERFECTION UPON RECORDATION. Mortgagor acknowledges that
Mortgagee have taken all actions necessary to obtain, and that upon recordation
of this Mortgage, Mortgagee shall have, to the extent permitted under applicable
law, a valid and fully perfected, first priority, present assignment of the
Rents arising out of the Leases and all security for such Leases. Mortgagor
acknowledges and agrees that upon recordation of this Mortgage Mortgagee's
interest in the Rents shall be deemed to be fully perfected, "▇▇▇▇▇▇" and
enforced as to Mortgagor and to the extent permitted under applicable law, all
third parties, including, without limitation, any subsequently appointed trustee
in any case under Title 11 of the United States Code (the "BANKRUPTCY CODE"),
without the necessity of commencing a foreclosure action with respect to this
Mortgage, making formal demand for the Rents, obtaining the appointment of a
receiver or taking any other affirmative action.
SECTION 6.3. BANKRUPTCY PROVISIONS. Without limitation of the absolute
nature of the assignment of the Rents hereunder, Mortgagor and Mortgagee agree
that (a) this Mortgage shall constitute a "security agreement" for purposes of
Section 552(b) of the Bankruptcy Code, (b) the security interest created by this
Mortgage extends to property of Mortgagor acquired before the commencement of a
case in bankruptcy and to all amounts paid as Rents and (c) such security
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interest shall extend to all Rents acquired by the estate after the commencement
of any case in bankruptcy.
SECTION 6.4. NO MERGER OF ESTATES. So long as part of the Indebtedness
and the Obligations secured hereby remain unpaid and undischarged, the fee and
leasehold estates to the Mortgaged Property shall not merge, but shall remain
separate and distinct, notwithstanding the union of such estates either in
Mortgagor, Mortgagee, any tenant or any third party by purchase or otherwise.
ARTICLE 7
SECURITY AGREEMENT
SECTION 7.1. SECURITY INTEREST. This Mortgage constitutes a "security
agreement" on personal property within the meaning of the UCC and other
applicable law and with respect to the Mortgaged Property. To this end,
Mortgagor grants to Mortgagee a first and prior security interest in the
Mortgaged Property which is personal property to secure the payment of the
Indebtedness and performance of the Obligations, and agrees that Mortgagee shall
have all the rights and remedies of a secured party under the UCC with respect
to such property. Any notice of sale, disposition or other intended action by
Mortgagee with respect to the Mortgaged Property which is personal property sent
to Mortgagor at least five (5) days prior to any action under the UCC shall
constitute reasonable notice to Mortgagor.
SECTION 7.2. FINANCING STATEMENTS. Mortgagor shall execute and deliver
to Mortgagee, in form and substance satisfactory to Mortgagee, such financing
statements and such further assurances as Mortgagee may, from time to time,
reasonably consider necessary to create, perfect and preserve Mortgagee's
security interest hereunder and Mortgagee may cause such statements and
assurances to be recorded and filed, at such times and places as may be required
or permitted by law to so create, perfect and preserve such security interest.
Mortgagor's chief executive office is at the address set forth in the first
paragraph of this Mortgage.
SECTION 7.3. FIXTURE FILING. This Mortgage shall also constitute a
"fixture filing" for the purposes of the UCC against all of the Mortgaged
Property which is or is to become fixtures. Information concerning the security
interest herein granted may be obtained at the addresses of Debtor (Mortgagor)
and Secured Party (Mortgagee) as set forth in the first paragraph of this
Mortgage.
ARTICLE 8
INTENTIONALLY DELETED
ARTICLE 9
MISCELLANEOUS
SECTION 9.1. NOTICES. Any notice required or permitted to be given under
this Mortgage shall be given in accordance with Section 24 of the Security
Agreement.
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SECTION 9.2. COVENANTS RUNNING WITH THE LAND. All Obligations contained
in this Mortgage are intended by Mortgagor and Mortgagee to be, and shall be
construed as, covenants running with the Mortgaged Property. As used herein,
"Mortgagor" shall refer to the party named in the first paragraph of this
Mortgage and to any subsequent owner of all or any portion of the Mortgaged
Property. All Persons who may have or acquire an interest in the Mortgaged
Property shall be deemed to have notice of, and be bound by, the terms of the
Credit Agreement and the other Loan Documents; however, no such party shall be
entitled to any rights thereunder without the prior written consent of
Mortgagee.
SECTION 9.3. ATTORNEY-IN-FACT. Mortgagor hereby irrevocably appoints
Mortgagee and its successors and assigns, as its attorney-in-fact, which agency
is coupled with an interest and with full power of substitution, (a) to execute
and/or record any notices of completion, cessation of labor or any other notices
that Mortgagee deems appropriate to protect Mortgagee's interest, if Mortgagor
shall fail to do so within ten (10) days after written request by Mortgagee, (b)
upon the issuance of a deed pursuant to the foreclosure of this Mortgage or the
delivery of a deed in lieu of foreclosure, to execute all instruments of
assignment, conveyance or further assurance with respect to the Leases, Rents,
Deposit Accounts, Property Agreements, Tax Refunds, Proceeds, Insurance and
Condemnation Awards in favor of the grantee of any such deed and as may be
necessary or desirable for such purpose, (c) to prepare, execute and file or
record financing statements, continuation statements, applications for
registration and like papers necessary to create, perfect or preserve
Mortgagee's security interests and rights in or to any of the Mortgaged
Property, and (d) while any Event of Default exists, to perform any obligation
of Mortgagor hereunder, however: (1) Mortgagee shall not under any circumstances
be obligated to perform any obligation of Mortgagor; (2) any sums advanced by
Mortgagee in such performance shall be added to and included in the Indebtedness
and shall bear interest at the rate or rates at which interest is then computed
on the Indebtedness; (3) Mortgagee as such attorney-in-fact shall only be
accountable for such funds as are actually received by Mortgagee; and (4)
Mortgagee shall not be liable to Mortgagor or any other person or entity for any
failure to take any action which it is empowered to take under this Section 9.3.
SECTION 9.4. SUCCESSORS AND ASSIGNS. This Mortgage shall be binding upon
and inure to the benefit of Mortgagee, Mortgagor and the Lenders and their
respective successors and assigns. Mortgagor shall not, without the prior
written consent of Mortgagee, assign any rights, duties or obligations
hereunder.
SECTION 9.5. NO WAIVER. Any failure by Mortgagee or the Lenders to
insist upon strict performance of any of the terms, provisions or conditions of
the Loan Documents shall not be deemed to be a waiver of same, and Mortgagee or
the Lenders shall have the right at any time to insist upon strict performance
of all of such terms, provisions and conditions.
SECTION 9.6. CREDIT AGREEMENT. If any irreconcilable conflict exists
between this Mortgage and the Credit Agreement, the Credit Agreement shall
govern.
SECTION 9.7. RELEASE OR RECONVEYANCE. Upon payment in full of the
Indebtedness, performance in full of the Obligations, termination or expiration
of the Commitments and cancellation or expiration of the Letters of Credit, or
upon a sale or other disposition of the
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Mortgaged Property permitted by the Credit Agreement, Mortgagee, at Mortgagor's
expense, shall release the Liens and security interests created by this Mortgage
or reconvey the Mortgaged Property to Mortgagor.
SECTION 9.8. WAIVER OF STAY, MORATORIUM AND SIMILAR RIGHTS. Mortgagor
agrees, to the full extent that it may lawfully do so, that it will not at any
time insist upon or plead or in any way take advantage of any stay, marshalling
of assets, extension, redemption or moratorium law now or hereafter in force and
effect so as to prevent or hinder the enforcement of the provisions of this
Mortgage or the Indebtedness or Obligations secured hereby, or any agreement
between Mortgagor and Mortgagee or any rights or remedies of Mortgagee or the
Lenders.
SECTION 9.9. APPLICABLE LAW. The provisions of this Mortgage regarding
the creation, perfection and enforcement of the Liens and security interests
herein granted shall be governed by and construed under the laws of the state in
which the Mortgaged Property is located. All other provisions of this Mortgage
shall be governed by the laws of the State of New York (including, without
limitation, Section 5-1401 of the General Obligations Law of the State of New
York), without regard to conflicts of laws principles.
SECTION 9.10. HEADINGS. The Article, Section and Subsection titles
hereof are inserted for convenience of reference only and shall in no way alter,
modify or define, or be used in construing, the text of such Articles, Sections
or Subsections.
SECTION 9.11. ENTIRE AGREEMENT. This Mortgage and the other Loan
Documents and the Lender Hedge Agreements embody the entire agreement and
understanding between Mortgagor and Mortgagee and supersede all prior agreements
and understandings between such parties relating to the subject matter hereof
and thereof. Accordingly, this Mortgage, the other Loan Documents and the Lender
Hedge Agreements may not be contradicted by evidence of prior, contemporaneous
or subsequent oral agreements of the parties. There are no unwritten oral
agreements between the parties.
SECTION 9.12. MORTGAGEE AS ADMINISTRATIVE AGENT; SUCCESSOR
ADMINISTRATIVE AGENTS.
(a) Mortgagee has been appointed to act as Administrative Agent
hereunder by the Lenders. Mortgagee shall have the right hereunder to make
demands, to give notices, to exercise or refrain from exercising any rights, and
to take or refrain from taking any action (including, without limitation, the
release or substitution of the Mortgaged Property) in accordance with the terms
of the Credit Agreement, any related agency agreement among Mortgagee and the
Lenders (collectively, as amended, supplemented or otherwise modified or
replaced from time to time, the "AGENCY DOCUMENTS") and this Mortgage. Mortgagor
and all other persons shall be entitled to rely on releases, waivers, consents,
approvals, notifications and other acts of Mortgagee, without inquiry into the
existence of required consents or approvals of the Lenders therefor.
(b) Mortgagee shall at all times be the same Person that is
Administrative Agent under the Agency Documents. Written notice of resignation
by Administrative Agent
XV(B)-16
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pursuant to the Agency Documents shall also constitute notice of resignation as
Mortgagee under this Mortgage. Appointment of a successor Administrative Agent
pursuant to the Agency Documents shall also constitute appointment of a
successor Mortgagee under this Mortgage. Upon the acceptance of any appointment
as Administrative Agent by a successor Administrative Agent under the Agency
Documents, that successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Mortgagee under this Mortgage, and the retiring or Mortgagee shall promptly (i)
assign and transfer to such successor Mortgagee all of its right, title and
interest in and to this Mortgage and the Mortgaged Property, and (ii) execute
and deliver to such successor Mortgagee such assignments and amendments and take
such other actions, as may be necessary or appropriate in connection with the
assignment to such successor Mortgagee of the Liens and security interests
created under this Mortgage. After any retired Administrative Agent's
resignation hereunder as Mortgagee, the provisions of this Mortgage and the
Agency Documents shall inure to its benefit as to any actions take or omitted to
be taken by it under this Mortgage while it was the Mortgagee hereunder.
SECTION 9.13. SEVERABILITY. If any provision of this Mortgage is or
becomes invalid, illegal or unenforceable, such provision shall be deemed
amended to conform to applicable laws so as to be valid and enforceable or, if
it cannot be so amended without materially altering the intention of the
parties, it shall be stricken and the remainder of this Mortgage shall remain in
full force and effect.
ARTICLE 10
LOCAL LAW PROVISIONS
[To Come]
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IN WITNESS WHEREOF, Mortgagor has on the date set forth in the
acknowledgement hereto, effective as of the date first above written, caused
this instrument to be duly EXECUTED AND DELIVERED by authority duly given.
GRANTOR: ,
----------------------------------
a
---------------------------------
By:
------------------------------
Name:
-----------------------
Title:
-----------------------
XV(B)-18
292
State of ______________ )
) ss.
County of _____________ )
On ____________________, before me, personally appeared ____________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s) or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
[SEAL]
-----------------------------------
My Commission expires: Notary Public
-----------------------------------
N-1
293
EXHIBIT A
LEGAL DESCRIPTION
Legal Description of premises located at:
-----------------------------------
-----------------------------------
[SEE ATTACHED PAGE(s) FOR LEGAL DESCRIPTION]
294
EXHIBIT B
SUBJECT LEASE
295
EXHIBIT XVI
FORM OF ENVIRONMENTAL INDEMNITY AGREEMENT
ENVIRONMENTAL INDEMNITY AGREEMENT
THIS ENVIRONMENTAL INDEMNITY AGREEMENT (this "AGREEMENT") is entered
into as of September __, 2001, by THE ▇▇▇▇▇▇▇▇ GROUP, INC., a Delaware
corporation ("COMPANY") and each of THE SUBSIDIARIES of Company listed on the
signature pages attached hereto (each, a "SUBSIDIARY INDEMNITOR" and
collectively, the "SUBSIDIARY INDEMNITORS") (Company and each Subsidiary
Indemnitor is referred to as an "INDEMNITOR" and collectively as the
"Indemnitors") to and for the benefit of CREDIT SUISSE FIRST BOSTON, as
Administrative Agent ("ADMINISTRATIVE AGENT") for and representative of the
financial institutions ("LENDERS") that are party to the Credit Agreement
referred to below and any Hedge Providers (as defined below), and each of their
respective successors, assigns and participants, and their respective parent,
subsidiary and affiliated corporations, and the respective directors, officers,
agents, attorneys, and employees of each of the foregoing including any Person
that holds or that may hereafter acquire all or any part of the Facilities (as
such term is defined in the Credit Agreement) or any interest or estate therein
by purchasing any of the Facilities at a foreclosure sale or trustee's sale or
by acceptance of a deed in lieu of foreclosure (each of which are referred to
hereinafter individually as an "INDEMNITEE" and collectively as the
"INDEMNITEES"). Initially capitalized terms used in this Agreement without
definition are defined in that certain Credit Agreement dated of even date
herewith (the "CREDIT AGREEMENT") by and among the Company, Lenders and
Administrative Agent.
R E C I T A L S
A. Pursuant to the Credit Agreement, Lenders have made certain
commitments, subject to the terms and conditions set forth in the Credit
Agreement, to extend certain credit facilities to Company.
B. Company may from time to time enter, or may from time to time have
entered, into one or more Hedge Agreements (collectively, the "LENDER HEDGE
AGREEMENTS") with one or more Persons that are Lenders or Affiliates of Lenders
at the time such Lender Hedge Agreements are entered into (in such capacity,
collectively, "HEDGE PROVIDERS") in accordance with the terms of the Credit
Agreement.
C. Subsidiary Indemnitors have executed and delivered that certain
Subsidiary Guaranty dated of even date herewith (said Subsidiary Guaranty, as it
may hereafter be further amended, restated, supplemented or otherwise modified
from time to time, being the "SUBSIDIARY GUARANTY") in favor of Administrative
Agent for the benefit of Lenders and any Hedge Providers, pursuant to which each
Subsidiary Indemnitor has guaranteed the prompt payment and performance when due
of all Obligations of Company under the Credit Agreement and other Loan
Documents and all obligations of Company under the Lender Hedge Agreements,
including the obligation of Company to make payments thereunder in the event of
early termination thereof.
296
D. As a condition of entering into the Credit Agreement, Lenders and
Hedge Providers require that Indemnitors indemnify, defend and hold
Administrative Agent, Lenders, and the other Indemnitees harmless from and
against certain obligations for which they may incur liability, whether as
beneficiary of the Mortgages or any other Collateral Document, mortgagee in
possession, or successor-in-interest to any Subsidiary Indemnitor by foreclosure
or deed in lieu of foreclosure, by reason of the threat or presence of any
Hazardous Materials at or near the Facilities.
NOW, THEREFORE, in consideration of the foregoing Recitals, the making
of the Loan, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Indemnitors, intending to be
legally bound, hereby jointly and severally agree as follows:
1. RECITALS. The foregoing recitals are incorporated into this Agreement
by this reference.
2. COVENANTS. Each Indemnitor hereby makes the representations and
warranties in Section 5.13 of the Credit Agreement and shall comply with the
provisions of Section 6.7 of the Credit Agreement with respect to each Facility
in which such Indemnitor has any interest, each of which is incorporated herein
by this reference as if fully set forth herein.
3. INDEMNITY.
3.1 Each Indemnitor shall indemnify, defend and hold
Administrative Agent and the other Indemnitees harmless from and against all
claims, losses, damages, demands, liabilities, penalties, actions, judgments,
suits, fees, costs and expenses (including the fees, expenses and disbursements
of counsel in connection with any investigative, administrative or judicial
proceeding commenced or threatened), whether direct, indirect or consequential
and whether based on any federal, state or foreign laws, statutes, rules or
regulations (including securities and commercial laws and Environmental Laws),
on common law or equitable causes or on contract or otherwise (collectively,
"CLAIMS") of whatever kind or nature, known or unknown, contingent or otherwise,
directly or indirectly arising from or related to any of the following:
3.1.1. Each Indemnitor's breach of any representation,
warranty or covenant or other obligation set forth in this Agreement;
3.1.2 The presence, Release (or threatened Release), use,
generation, manufacture, production, treatment or storage of Hazardous Materials
at, on, or from the Facilities or affecting the soil, soil vapor, water,
groundwater, vegetation, buildings, personal property, Persons, animals or
otherwise at or on the Facilities or other property;
3.1.3 Any personal injury (including wrongful death) or
property damage (real or personal) arising out of or related to Hazardous
Materials, or underground or other storage tanks for Hazardous Materials, on, at
or around the Facilities or other property;
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3.1.4 Any Claim or lawsuit brought or threatened,
settlement reached (with Indemnitors' consent, which consent shall not be
unreasonably withheld, delayed or conditioned), or government order relating to
Hazardous Materials or underground or other storage tanks for Hazardous
Materials on, at or around the Facilities or other property;
3.1.5 Any violation of Environmental Laws or demand of any
Governmental Authority that is based upon or in a way related to the presence,
Release, use, generation, manufacture, production, treatment or storage of
Hazardous Materials or underground or other storage tanks for Hazardous
Materials in connection with the Facilities by any Person or other source,
whether related or unrelated to Indemnitors;
3.1.6 Any and all losses (including loss of value of the
Facilities) and any or all of the following (a) any incurrence of or liability
for costs of clean-up, removal or remedial action incurred by a Governmental
Authority, or by any other Person, or damages from injury to or destruction or
loss of natural resources including the costs of assessing such injury,
destruction or loss, legal representation, governmental oversight, financial
assurance or ongoing monitoring or maintenance, arising under the provision of
any Environmental Law; (b) any incurrence of or liability for any other costs or
expenses of abatement, correction or clean-up, or any fines, damages, response
costs or penalties, which arise under the provisions of any Environmental Law,
(c) liability for personal injury or property damages arising under any
statutory or common law tort theory, including damages assess for the
maintenance of a public or private nuisance or for the carrying on of an
abnormally dangerous activity; (d) any amounts expended in good faith by
Administrative Agent or any other Indemnitee to settle or compromise any claim
or allegation of liability if Indemnitors fail to promptly and diligently defend
such claim or allegation; and (e) consequential or punitive damages; whether or
not liability is asserted against or imposed on Administrative Agent as a result
of any action or inaction by Administrative Agent;
3.1.7 The inaccuracy or breach of any representation,
warranty or covenant set forth in the Credit Agreement or any other Loan
Document relating to Hazardous Materials or Environmental Laws, or subsequently
made by any Indemnitor to Administrative Agent, in each case when such
representation or warranty was made (any of the foregoing being referred to in
this Agreement as an "INDEMNIFIED CLAIM").
Each Indemnitor's obligations under this Agreement shall arise without regard to
whether or not any Governmental Authority has taken or threatened any action in
connection with the presence of any Hazardous Materials.
3.2 The indemnification set out in this Section 3 shall survive
satisfaction and payment of the liabilities and termination of this Agreement,
the Credit Agreement and the other Loan Documents and shall not be limited in
any way by the passage of time or occurrence of any event. The amount of
indemnification under this Agreement shall not be limited by and may exceed the
amount of the Loans.
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3.3 This Agreement is given to protect Administrative Agent
against the Indemnified Claims described in this Agreement, and not as
additional security for, or as a means of repayment of, the Loans. The
obligations of each Indemnitor under this Agreement are independent of, and
shall not be measured or affected by (i) any amounts at any time owing under the
Loans or secured by the Mortgages or any other Collateral Document, (ii) the
sufficiency or insufficiency of any collateral (including the Facilities) given
to Administrative Agent to secure repayment of the Loans, (iii) the
consideration given by Administrative Agent or any other party in order to
acquire the Facilities, or any portion thereof, or (iv) the modification,
expiration or termination of the Mortgages or any other Loan Document. The
rights of Administrative Agent under this Agreement shall be in addition to any
other rights and remedies of Administrative Agent against any Indemnitor under
any other document or instrument now or hereafter executed by such Indemnitor,
or at law or in equity (including any right of reimbursement or contribution
pursuant to Environmental Laws), and shall not in any way be deemed a waiver of
any of such rights.
4. DUTY TO DEFEND. Upon written request of Administrative Agent, at
Administrative Agent's sole option, Indemnitors shall undertake the defense of
Administrative Agent and the other Indemnitees at Indemnitors' sole cost and
expense, with counsel approved by Administrative Agent, in connection with any
Indemnified Claim. If (i) any Indemnitor refuses to undertake the defense of
Administrative Agent or any other Indemnitee after receiving such request; (ii)
any Indemnitor fails to assume (within ten (10) Business Days after receiving
such request) and thereafter diligently and continuously conduct such defense;
(iii) the use of counsel chosen by Indemnitors to represent Administrative Agent
would present such counsel with a conflict of interest; or (iv) the defendants
in, or targets of, any such litigation or proceeding include both Administrative
Agent and Indemnitors and Administrative Agent in its sole discretion concludes
that there are or are likely to be significant legal defenses available to it
which are different from or additional to those available to Indemnitors and
would require Indemnitors to take inconsistent or conflicting positions from
those taken by Administrative Agent (in which case no Indemnitor has the right
to direct the defense on behalf of Administrative Agent or any other Indemnitor
with respect to such legal defense), then in any of such cases Administrative
Agent may employ separate counsel selected by Administrative Agent at the sole
cost and expense of Indemnitors without reducing Indemnitors' obligations to
protect, indemnify and hold harmless Administrative Agent and the other
Indemnitees as provided in this Agreement.
5. PERFORMANCE.
5.1 The undertakings, liabilities and obligations of Indemnitors
shall not be affected, discharged, improved or varied except by the due and
punctual performance of such Indemnitor's obligations as set forth in this
Agreement and then only to the extent thereof. The rights of Administrative
Agent hereunder shall not be limited by any investigation or the scope of any
investigation undertaken by or on behalf of Administrative Agent in connection
with the Facilities prior to the date hereof. No failure or delay on the part of
Administrative Agent to exercise any power, right or privilege under this
Agreement shall impair any such power, right or privilege, or be construed to be
a waiver of any default or an acquiescence therein, nor shall any
XVI-4
299
single or partial exercise of such power, right or privilege preclude other or
further exercise thereof or of any other right, power or privilege.
5.2 In the event of any Release of Hazardous Materials, the
threat of a Release of any Hazardous Materials, whether or not the same
originates or emanates from the Facilities or any contiguous real estate, or the
presence of any Hazardous Material affecting the Facilities in breach of
Indemnitors' covenants in Section 2 hereof, and/or if any Indemnitor fails to
comply with any of the requirements of the Environmental Laws, Administrative
Agent may at its election, but without the obligation so to do, after the date
that is ten (10) days after delivery of written notice to Indemnitors thereof
(unless Indemnitors cure such condition within ten (10) days after such notice
is sent to it or within such additional time (not exceeding sixty (60) days)
reasonably necessary so long as Indemnitors diligently pursue cure of such
condition), cause such work to be performed at the Facilities and/or take any
and all other actions as Administrative Agent deems necessary or advisable in
order to ▇▇▇▇▇ the Release of any Hazardous Material, remove the Hazardous
Material or cure Indemnitors' noncompliance. If Administrative Agent elects to
act pursuant to this provision, it will do so only to the extent necessary to
protect the value of its security interest in the Facilities. Each Indemnitor
acknowledges that Administrative Agent is not a guarantor or participant of such
Indemnitor under Environmental Laws.
5.3 Each Indemnitor acknowledges that Administrative Agent and
Lenders have agreed to make the Loans and other extensions of credit under the
Credit Agreement in reliance upon each Indemnitor's covenants, representations,
warranties and indemnities in this Agreement. All of the covenants and
indemnities of this Agreement shall survive the repayment of the Notes, the
release of the Lien of the Mortgages from the Facilities and the release of any
Collateral Document and shall survive the transfer of any or all right, title
and interest in and to the Facilities by any Indemnitor to any party, whether or
not affiliated with such Indemnitor.
5.4 In addition to any other remedies hereunder or under
applicable law which Administrative Agent may have for an Event of Default,
Administrative Agent has the right to waive its Lien against the Facilities or
any portion thereof, whether fixtures or personal property, to the extent such
Facility is found to be environmentally impaired, and to exercise any and all
rights and remedies of an unsecured creditor against Indemnitors and all of
Indemnitor's assets and property for the recovery of any deficiency. As between
Administrative Agent and Indemnitors, Indemnitors have the burden of proving
that any Indemnitor or any related party (or any Affiliate or agent of any
Indemnitor or any related party) did not knowingly or negligently cause or
contribute to, or knowingly permit or acquiesce to, any Release or threatened
Release of a Hazardous Material. Each Indemnitor acknowledges and agrees that
notwithstanding any term or provision contained herein or in the Loan Documents,
all judgments and awards entered against Indemnitors shall be exceptions to any
nonrecourse or exculpatory provision of the Loan Documents, and each Indemnitor
shall be fully liable for all judgments and awards entered against such
Indemnitor hereunder and such liability shall not be limited to the original
principal amount of the Loans and each Indemnitor's obligations shall survive
the foreclosure, deed in lieu of foreclosure, release, reconveyance, or any
other transfer of the Facilities.
XVI-5
300
6. ATTORNEYS AND CONSULTANTS FEES. If Administrative Agent, or someone
on Administrative Agent's behalf, retains the services of an attorney and/or
environmental consultant, engineer or other professional in connection with the
subject of the indemnity herein, Indemnitors shall pay Administrative Agent's
costs and reasonable attorneys fees and consultants fees thereby incurred.
Administrative Agent may employ attorneys and consultants of its own choice.
7. INTEREST. If Administrative Agent incurs any obligations, costs or
expenses under this Agreement, Indemnitors shall pay the same to Administrative
Agent immediately on demand, and if such payment is not received within ten (10)
days after written demand from Administrative Agent to Indemnitors, interest on
such amount shall accrue at the default rate of interest in the Notes until such
amount, plus interest, is paid in full.
8. JOINT AND SEVERAL LIABILITY. The liability of Indemnitors is joint
and several. In addition, each Indemnitor's obligations hereunder are joint and
several with any other Person now or hereafter obligated under the Loan
Documents and are independent of the obligations of each Indemnitor. A separate
action or actions may be brought and prosecuted against each Indemnitor, whether
or not action is brought against any other Indemnitor or any other Person or
whether or not any Indemnitor or any other Person is joined in such action or
actions.
9. NOTICE. All notices, demands, requests and other communications
required hereunder shall be in writing and shall be given in accordance with the
terms and provisions of the Credit Agreement and the Security Agreement.
10. SEVERABILITY. If any provision of this Agreement is prohibited or
held to be invalid, illegal or unenforceable in any jurisdiction, the parties
hereto agree to the fullest extent permitted by law that (a) the validity,
legality and enforceability of the other provisions in such jurisdiction shall
not be affected or impaired thereby; (b) any such prohibition, invalidity,
illegality or unenforceability shall not render such provision prohibited,
invalid, illegal, or unenforceable in any other jurisdiction; and (c) the
parties hereto shall endeavor in good faith negotiations to replace the invalid
or unenforceable provisions with valid and enforceable provisions, the economic
effect of which comes as close as possible to that of the invalid or
unenforceable provisions.
11. GUARANTOR PROVISIONS. If and to the extent that the Company or any
one or more of the Subsidiary Indemnitors (for the purposes of this Section 11,
being individually and collectively referred to herein as "GUARANTOR") would be
deemed or construed to be a guarantor or surety under applicable law with
respect to its obligations hereunder, each Guarantor hereby agrees as follows:
11.1 Guarantor expressly agrees that until each and every term,
covenant and condition of this Agreement is fully performed, Guarantor shall not
be released by any act or event which, except for this provision of this
Agreement might be deemed a legal or equitable discharge or exoneration of a
surety, or because of any waiver, extension, modification, forbearance or delay
or other act or omission of the Administrative Agent or any Lender or any Hedge
Provider or their failure to proceed promptly or otherwise as against the
Company or any
XVI-6
301
of the Subsidiary Indemnitors, as the case may be (individually and
collectively, in its or their capacity as the entity or entities the obligations
of which are guaranteed hereunder by Guarantor, the "PRINCIPAL INDEMNITOR") or
Guarantor, or because of any action taken or omitted or circumstance which might
vary the risk or affect the rights or remedies of Guarantor as against the
Principal Indemnitor, or because of any further dealings between the Principal
Indemnitor and the Administrative Agent or any Lender or any Hedge Provider,
whether relating to this Agreement or otherwise. Guarantor hereby expressly
waives and surrenders any defense to Guarantor's liability under this Agreement
based upon any of the foregoing acts, omissions, things, agreements, waivers or
any of them. It is the purpose and intent of this Agreement that the obligations
of Guarantor under it shall be absolute and unconditional under any and all
circumstances, subject to and in accordance with the terms and conditions of
this Agreement.
11.2 Each Guarantor waives:
11.2.1 all statutes of limitations as a defense to any
action or proceeding brought against Guarantor by the Administrative Agent or
any Lender or any Hedge Provider, to the fullest extent permitted by law;
11.2.2 any right it may have to require the Administrative
Agent or any Lender or any Hedge Provider to proceed against the Principal
Indemnitor or pursue any other remedy in the Administrative Agent or any
Lender's or any Hedge Provider's power to pursue, it being acknowledged and
agreed that the obligations of Guarantor hereunder are independent of the
obligations of the Principal Indemnitor hereunder, and neither the
Administrative Agent nor any Lender nor any Hedge Provider shall be required to
make any demand upon, exercise any right to declare a default by, or proceed
against, the Principal Indemnitor prior to proceeding against Guarantor to the
full extent of Guarantor's obligations hereunder;
11.2.3 any defense based on any legal disability of the
Principal Indemnitor and any discharge, release or limitation of the liability
of the Principal Indemnitor to the Administrative Agent or any Lender or any
Hedge Provider, whether consensual or arising by operation of law or any
bankruptcy, reorganization, receivership, insolvency, or debtor-relief
proceeding, or from any other cause, or any claim that Guarantor's obligations
exceed or are more burdensome than those of the Principal Indemnitor;
11.2.4 all presentments, demands for performance, notices
of nonperformance, protests, notices of protest, notices of dishonor, notices of
acceptance of this Agreement and of the existence, creation, or incurring of new
or additional indebtedness, and demands and notices of every kind;
11.2.5 any defense based on or arising out of any defense
that the Principal Indemnitor may have to the payment or performance of any
obligation set forth in this Agreement;
11.2.6 until all obligations under this Agreement have
been paid and performed in full, all rights of subrogation and all rights to
enforce any remedy that Guarantor
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may have against the Principal Indemnitor, all regardless of whether Guarantor
may have made any payments to the Administrative Agent or any Lender or any
Hedge Provider; and
11.2.7 in the event that notwithstanding the provisions of
Section 3.3, the obligations of the Principal Indemnitor, hereunder are held or
deemed to be secured, any right of Guarantor to have the Collateral of the
Principal Indemnitor first applied to the discharge of the Secured Obligations,
and Guarantor expressly recognizes that any such Collateral is security for the
Principal Indemnitor's obligations hereunder but not for Guarantor's obligations
hereunder.
11.2.8 Each Guarantor assumes full responsibility for
keeping informed of the financial condition and business operations of the
Principal Indemnitor and all other circumstances affecting the Principal
Indemnitor's ability to pay for and perform its obligations to the Indemnitees,
and agrees that neither the Administrative Agent nor any Lender nor any Hedge
Provider have a duty to disclose to Guarantor any information which the
Administrative Agent or any such Lender or any such Hedge Provider may receive
about the Principal Indemnitor's financial condition, business operations, or
any other circumstances bearing on its ability to perform.
11.3 Each Guarantor jointly and severally agrees to perform and
be liable for the obligations of the Principal Indemnitor hereunder.
11.4 Anything contained in this Agreement to the contrary
notwithstanding, the obligations of each Guarantor under this Agreement shall be
limited to a maximum aggregate amount equal to the largest amount that would not
render its obligations hereunder subject to avoidance as a fraudulent transfer
or conveyance under Section 548 of Title 11 of the United States Code or any
applicable provisions of comparable state law (collectively, the "FRAUDULENT
TRANSFER LAWS"), in each case after giving effect to all other liabilities of
such Guarantor, contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of such
Guarantor (x) in respect of intercompany indebtedness to Company or other
affiliates of Company to the extent that such indebtedness would be discharged
in an amount equal to the amount paid by such Guarantor hereunder and (y) under
any guaranty of Subordinated Indebtedness which guaranty contains a limitation
as to maximum amount similar to that set forth in this Section 11.4, pursuant to
which the liability of such Guarantor hereunder is included in the liabilities
taken into account in determining such maximum amount) and after giving effect
as assets to the value (as determined under the applicable provisions of the
Fraudulent Transfer Laws) of any rights to subrogation, reimbursement,
indemnification or contribution of such Guarantor pursuant to applicable law or
pursuant to the terms of any agreement.
11.5 Each Guarantor under this Agreement, and each guarantor
under other guaranties, if any, relating to the Credit Agreement (the "RELATED
GUARANTIES") that contain a contribution provision similar to that set forth in
Section 11.4 , together desire to allocate among themselves (collectively, the
"CONTRIBUTING GUARANTORS"), in a fair and equitable manner, their obligations
arising under this Agreement and the Related Guaranties. Accordingly, in the
event any payment or distribution is made on any date by a Guarantor under this
Agreement or a guarantor under a Related Guaranty, each such Guarantor or such
other guarantor shall be
XVI-8
303
entitled to a contribution from each of the other Contributing Guarantors in the
maximum amount permitted by law so as to maximize the aggregate amount of the
Guarantied Obligations paid to the Indemnitees.
12. MISCELLANEOUS
12.1 THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE CONFLICT OF LAWS
RULES AND PRINCIPLES OF SUCH STATE.
12.2 Administrative Agent may, without notice to, or consent of,
Indemnitors, sell, assign or transfer to any Person or Persons all or any part
of its rights and remedies under this Agreement, and in the event of any such
assignment or grant, the rights and remedies of Administrative Agent hereunder
shall extend to, and vest in, any such assignee or assignees who has the right
to enforce the provisions of this Agreement as fully as Administrative Agent,
provided that Administrative Agent shall continue to have the unimpaired right
to enforce the provisions of this Agreement as to so much of its rights and
remedies that it has not sold, assigned or transferred. Each Indemnitor shall
fully cooperate with Administrative Agent in connection with any such assignment
and will execute and deliver such consents and acceptances to any such
assignment or grant and amendments to this Agreement in order to effect any such
assignment or grant (including the appointment of Administrative Agent as agent
for itself and all assignees).
12.3 This Agreement shall be binding upon each Indemnitor's
successors, assigns, heirs, personal representatives and estate and shall inure
to the benefit of Administrative Agent, the other Indemnitees and their
respective successors, assigns and participants. No Indemnitor may assign its
rights or obligations hereunder or any interest herein without the prior written
consent of Administrative Agent (and any such assignment or delegation without
Administrative Agent's prior written consent shall be an Event of Default under
the Credit Agreement).
12.4 The obligations of Indemnitors hereunder shall be
continuing. No assignment or transfer of the Facilities by the Indemnitors shall
operate to release the liability hereunder except with the express prior written
consent of the Administrative Agent in its sole and absolute discretion. Each
Indemnitor agrees that it has no right of contribution (including any right of
contribution under CERCLA) or subrogation against each of the other Indemnitors
unless and until all obligations of Indemnitors have been satisfied.
12.5 From time to time, each Indemnitor shall execute and deliver
to the Administrative Agent such additional documents as the Administrative
Agent may require to carry out the purposes of this Agreement, to preserve and
protect the Administrative Agent's and the other Indemnitees' rights as
contemplated herein.
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304
12.6 No failure or delay on the part of any Indemnitee to
exercise any power, right or privilege under this Agreement impairs any such
power, right or privilege, or be construed to be a waiver of any default or an
acquiescence therein, nor does any single or partial exercise of such power,
right or privilege preclude other or further exercise thereof or of any other
right, power or privilege. No provision of this Agreement may be changed,
waived, discharged or terminated except by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought.
12.7 This Agreement may be executed in counterparts each of which
is an original and all of which constitute one and the same Indemnity with the
same effect as if all parties had signed the same signature page. Any signature
page of this Agreement may be detached from any other counterpart of this
Agreement and reattached to any other counterpart of this Agreement identical in
form hereto but having attached to it one or more additional signature pages.
12.8 Article and Section headings in this Agreement are included
herein for convenience of reference only, shall not constitute a part of this
Agreement for any other purpose and shall not be deemed to affect the meaning or
construction of any of the provisions hereof.
12.9 Each Indemnitor represents and warrants to Administrative
Agent that it has read each and every provision of this instrument, has
consulted, or has been given the opportunity to have this instrument reviewed by
competent legal counsel of its choosing and understands, agrees to and accepts
the provisions hereof.
12.10 The initial Indemnitor(s) hereunder shall be Company and
such of the Subsidiaries of Company as are signatories hereto on the date
hereof. From time to time subsequent to the date hereof, Subsidiaries of Company
may become parties hereto, as additional Indemnitor (each an "ADDITIONAL
INDEMNITOR"), by executing a counterpart of this Agreement. A form of such a
counterpart is attached hereto as Exhibit A. Upon delivery of any such
counterpart to Administrative Agent, notice of which is hereby waived by
Indemnitors, each such Additional Indemnitor shall be an Indemnitor and shall be
as fully a party hereto as if such Additional Indemnitor were an original
signatory hereof. Each Indemnitor expressly agrees that its obligations arising
hereunder shall not be affected or diminished by the addition or release of any
other Indemnitor hereunder, nor by any election of Administrative Agent not to
cause any Subsidiary of Company to become an Additional Indemnitor hereunder.
This Agreement shall be fully effective as to any Indemnitor that is or becomes
a party hereto regardless of whether any other Person becomes or fails to become
or ceases to be a Indemnitor hereunder.
[Remainder of page intentionally left blank]
XVI-10
305
IN WITNESS WHEREOF, each Indemnitor has executed this Agreement as of
the date first above written.
,
---------------------------------------
as an Indemnitor
By:
-----------------------------------
Name:
----------------------------
Title:
----------------------------
Address:
------------------------------
------------------------------
------------------------------
,
---------------------------------------
as an Indemnitor
By:
-----------------------------------
Name:
----------------------------
Title:
----------------------------
Address:
------------------------------
------------------------------
------------------------------
,
---------------------------------------
as an Indemnitor
By:
-----------------------------------
Name:
----------------------------
Title:
----------------------------
Address:
------------------------------
------------------------------
------------------------------
XVI-11
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EXHIBIT A
FORM OF COUNTERPART FOR ADDITIONAL INDEMNITORS
This COUNTERPART (this "COUNTERPART"), dated _______, 200_, is delivered
pursuant to Section 12.10 of the Environmental Indemnity Agreement referred to
below. The undersigned hereby agrees that this Counterpart may be attached to
the Environmental Indemnity Agreement, dated as of September ___, 2001 (as it
may be from time to time amended, modified, restated, or supplemented, the
"AGREEMENT"; capitalized terms used herein not otherwise defined herein shall
have the meanings ascribed therein), executed and delivered by the Indemnitors
named therein to and for the benefit of CSFB, acting through one or more of its
agencies, branches or affiliates, as Administrative Agent and certain other
parties named therein as "INDEMNITEES". The undersigned, by executing and
delivering this Counterpart, hereby becomes an Additional Indemnitor under the
Environment Indemnity Agreement in accordance with Section 12.10 thereof and
agrees to be bound by all of the terms thereof.
IN WITNESS WHEREOF, the undersigned has caused this Counterpart to be
duly executed and delivered by its officer thereunto duly authorized as of
_______, 200_.
[NAME OF ADDITIONAL INDEMNITOR]
By:
--------------------------------
Name:
Title:
Address:
------------------------------
------------------------------
------------------------------
307
SCHEDULE 1.1A
TO
CREDIT AGREEMENT
CONSOLIDATED EBITDA ADJUSTMENTS
(SEPARATE DOCUMENT)
308
Schedule 1.1A
To
To Credit Agreement
Consolidated EBITDA Adjustments
Q3 '00 Q4 '00 Q1 '01 Q2 '01 Q3 '01 Q4 '01
---------- ---------- ---------- ---------- ---------- ----------
NON-RECURRING EXPENSES
One Time Severance Costs $ - $ 0.0 $ 0.0 $ 2.5 $ - $ -
Senior Executive Salaries Reductions $ 0.2 0.2 0.2 0.2 $ - $ -
One Time 25th Anniversary Expenditures $ 0.3 0.3 0.0 0.0 $ - $ -
Employee Headcount Reduction $ 0.2 0.2 0.2 0.2 $ - $ -
▇▇▇▇ Jet Disposal $ 0.4 0.4 0.8 0.4 $ - $ -
---------- ---------- ---------- ---------- ---------- ----------
TOTAL NON-RECURRING EXPENSES $ 1.0 $ 1.0 $ 1.2 $ 3.2 $ - $ -
Q1 '02 Q2 '02
---------- ----------
NON-RECURRING EXPENSES
One Time Severance Costs $ - $ -
Senior Executive Salaries Reductions $ - $ -
One Time 25th Anniversary Expenditures $ - $ -
Employee Headcount Reduction $ - $ -
▇▇▇▇ Jet Disposal $ - $ -
---------- ----------
TOTAL NON-RECURRING EXPENSES $ - $ -
309
SCHEDULE 1.1B
OPERATING LEASES EXCLUDED FROM
"INDEBTEDNESS" DEFINITION
1. Master Equipment Lease Agreement, dated as of August 16, 1999, by
and between First Security Bank, N.A, as Owner Trustee under Trust
Agreement (TC Aviation, Inc. Trust 1999-A), dated August 16, 1999,
and TC Aviation, Inc. (Operating Lease for Gulfstream aircraft)
2. Master Equipment Lease Agreement, dated as of May 30, 2000, between
KeyCorp Leasing, a division of Key Corporate Capital, Inc. and AK
Mobile Television, Inc. (Operating Lease for HDTV mobile unit)
3. Lease Agreement, dated January 24, 1996, between Automotive Rentals,
Inc. ("ARI") and ▇▇▇▇▇▇▇▇ Communications, Inc.
4. Other operating leases incurred in the ordinary course of business,
such as office equipment leases, occupancy leases, tower leases and
additional vehicle leases.
310
SCHEDULE 4.1C
CORPORATE STRUCTURE
(SEPARATE DOCUMENT)
311
[FLOWCHART]
312
SCHEDULE 5.1
5.1A THROUGH D --
INFORMATION REGARDING LOAN PARTIES AND OTHER SUBSIDIARIES
------------------------------------------------ --------------------- ----------------------- -----------------------
Domestic Foreign Outstanding
Name of Corporation Jurisdiction Jurisdiction Capital Stock
------------------------------------------------ --------------------- ----------------------- -----------------------
PARENT:
------------------------------------------------ --------------------- ----------------------- -----------------------
The ▇▇▇▇▇▇▇▇ Group, Inc. Delaware WA N/A
------------------------------------------------ --------------------- ----------------------- -----------------------
SUBSIDIARIES(1):
------------------------------------------------ --------------------- ----------------------- -----------------------
▇▇▇▇▇▇▇▇ Broadcasting Fresno, LLC (2) Delaware CA 100% LLC Interest
------------------------------------------------ --------------------- ----------------------- -----------------------
▇▇▇▇▇▇▇▇ Communications of Massachusetts, Inc Washington None 1,000
(2)
------------------------------------------------ --------------------- ----------------------- -----------------------
▇▇▇▇▇▇▇▇ Interactive Media, Inc. Washington CA 1,000
------------------------------------------------ --------------------- ----------------------- -----------------------
▇▇▇▇▇▇▇▇ Media Group, Inc. ▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇, ▇▇, ▇▇, ▇▇, ▇
▇▇, ▇▇
------------------------------------------------ --------------------- ----------------------- -----------------------
▇▇▇▇▇▇▇▇ Seattle Storm, Inc. (3) Washington None 1,000
------------------------------------------------ --------------------- ----------------------- -----------------------
▇▇▇▇▇▇▇▇ Ventures, Inc. (2) Washington None 1,000
------------------------------------------------ --------------------- ----------------------- -----------------------
AK Florida Outdoor, Inc (2) Washington FL, OR 1,000
------------------------------------------------ --------------------- ----------------------- -----------------------
AK Mobile Television, Inc. Washington None 1,000
------------------------------------------------ --------------------- ----------------------- -----------------------
Central NY News, Inc. Washington NY 1,000
------------------------------------------------ --------------------- ----------------------- -----------------------
Full House Sports and Entertainment, Inc. (2) Washington None 1,000
------------------------------------------------ --------------------- ----------------------- -----------------------
iKnow Bakersfield LLC (4) Washington CA LLC Interest (4)
------------------------------------------------ --------------------- ----------------------- -----------------------
KVOS TV, Ltd.(2) British Columbia None 1
------------------------------------------------ --------------------- ----------------------- -----------------------
SSI, Inc. Washington None 100
------------------------------------------------ --------------------- ----------------------- -----------------------
TC Aviation, Inc. Oregon Washington 1,000
------------------------------------------------ --------------------- ----------------------- -----------------------
(1) Unless otherwise indicated, each subsidiary is 100% owned by The ▇▇▇▇▇▇▇▇
Group, Inc.
(2) Wholly-owned subsidiary of ▇▇▇▇▇▇▇▇ Media Group, Inc.
(3) Wholly-owned subsidiary of SSI, Inc.
(4) Ownership: ▇▇▇▇▇▇▇▇ Media Group, Inc. -- 35%; ▇▇▇▇▇▇▇▇ Interactive Media,
Inc. -- 35%; third party ownership -- 30%
313
SCHEDULE 5.1E
5.1E(i) AND (ii)
STATION DESCRIPTION; FCC LICENSES OWNED
---------------- ------------------------------ -------------- ---------------------------- -------------------------
AUTHORIZED HOLDER LICENSE
CALL LETTERS MARKET SERVICE /LICENSEE EXPIRATION DATE
---------------- ------------------------------ -------------- ---------------------------- -------------------------
CENTRAL
COAST
---------------- ------------------------------ -------------- ---------------------------- -------------------------
KCOY-TV Santa ▇▇▇▇▇▇▇-Santa TV(1) ▇▇▇▇▇▇▇▇ Media Group, Inc. December 1, ▇▇▇▇
▇▇▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇
---------------- ------------------------------ -------------- ---------------------------- -------------------------
KGET(TV) Bakersfield, CA TV(2) ▇▇▇▇▇▇▇▇ Media Group, Inc. December 1, 2006
---------------- ------------------------------ -------------- ---------------------------- -------------------------
KGPE(TV) Fresno-Visalia, CA TV(1) ▇▇▇▇▇▇▇▇ Broadcasting December 1, 2006
Fresno, LLC
---------------- ------------------------------ -------------- ---------------------------- -------------------------
KKFX-CA Santa Barbara, CA TV(3) ▇▇▇▇▇▇▇▇ Media Group, Inc. December 1, 2006
---------------- ------------------------------ -------------- ---------------------------- -------------------------
NORTH COAST
---------------- ------------------------------ -------------- ---------------------------- -------------------------
KION(TV) Salinas, CA TV(1) ▇▇▇▇▇▇▇▇ Media Group, Inc. December 1, 2006
---------------- ------------------------------ -------------- ---------------------------- -------------------------
KFTY(TV) Santa Rose, CA TV ▇▇▇▇▇▇▇▇ Media Group, Inc. December 1, 2006
---------------- ------------------------------ -------------- ---------------------------- -------------------------
KMOR-LP Eugene, OR Low Power TV ▇▇▇▇▇▇▇▇ Media Group, Inc. February 1, 2007
---------------- ------------------------------ -------------- ---------------------------- -------------------------
KMTR(TV) Springfield, OR TV(2) ▇▇▇▇▇▇▇▇ Media Group, Inc. February 1, 2007
---------------- ------------------------------ -------------- ---------------------------- -------------------------
KMTX-TV Roseburg, OR TV ▇▇▇▇▇▇▇▇ Media Group, Inc. February 1, 2007
---------------- ------------------------------ -------------- ---------------------------- -------------------------
KMTZ(TV) Coos Bay, OR TV ▇▇▇▇▇▇▇▇ Media Group, Inc. February 1, 2007
---------------- ------------------------------ -------------- ---------------------------- -------------------------
KVIQ-TV Eureka, CA TV(1) ▇▇▇▇▇▇▇▇ Media Group, Inc. December 1, 2006
---------------- ------------------------------ -------------- ---------------------------- -------------------------
NEW YORK
---------------- ------------------------------ -------------- ---------------------------- -------------------------
WBGH-CA Binghamton, NY TV(2) Central NY News, Inc. June 1, 2007
---------------- ------------------------------ -------------- ---------------------------- -------------------------
WIVT(TV) Binghamton, NY TV(4) Central NY News, Inc. June 1, 2007
---------------- ------------------------------ -------------- ---------------------------- -------------------------
WIXT(TV) E. Syracuse, NY TV(4) Central NY News, Inc. June 1, 2007
---------------- ------------------------------ -------------- ---------------------------- -------------------------
WOKR(TV) Rochester, NY TV(4) Central NY News, Inc. June 1, 2007
---------------- ------------------------------ -------------- ---------------------------- -------------------------
WUTR(TV) Utica, NY TV(4) Central NY News, Inc. June 1, 2007
---------------- ------------------------------ -------------- ---------------------------- -------------------------
WWTI(TV) Watertown, NY TV(1) Central NY News, Inc. June 1, 2007
---------------- ------------------------------ -------------- ---------------------------- -------------------------
PACIFIC NW
---------------- ------------------------------ -------------- ---------------------------- -------------------------
KTVF(TV) Fairbanks, AK TV(2) ▇▇▇▇▇▇▇▇ Media Group, Inc. February 1, 2007
---------------- ------------------------------ -------------- ---------------------------- -------------------------
KVOS-TV Bellingham, WA TV ▇▇▇▇▇▇▇▇ Media Group, Inc. February 1, 2007
---------------- ------------------------------ -------------- ---------------------------- -------------------------
RADIO
---------------- ------------------------------ -------------- ---------------------------- -------------------------
KHHO(AM) Seattle, WA AM AK Media Group, Inc.(5) February 1, 2006
---------------- ------------------------------ -------------- ---------------------------- -------------------------
KJR(AM) Seattle, WA AM ▇▇▇▇▇▇▇▇ Media Group, Inc. February 1, 2006
---------------- ------------------------------ -------------- ---------------------------- -------------------------
KBTB(FM) Seattle, WA ▇▇ ▇▇▇▇▇▇▇▇ Media Group, Inc. February 1, 2006
---------------- ------------------------------ -------------- ---------------------------- -------------------------
▇▇▇▇(FM) Seattle, WA ▇▇ ▇▇▇▇▇▇▇▇ Media Group, Inc. February 1, 2006
---------------- ------------------------------ -------------- ---------------------------- -------------------------
(1) CBS Affiliate
(2) NBC Affiliate
(3) Fox Affiliate
(4) ABC Affiliate
(5) n/k/a ▇▇▇▇▇▇▇▇ Media Group, Inc. -- by reason of change of corporate name.
314
SCHEDULE 5.1E(v) - LMA'S
LMA TERMINATION DATE AMOUNT PAYABLE
WETM-TV Local Marketing Agreement, dated February 1, Earlier of the Closing of Spinoff $275,000/quarter (1)
2000, between ▇▇▇▇▇ Television of New York or Purchase Option, unless
and Central NY News, Inc. otherwise terminated
Time Brokerage Agreement, dated January 12, 2008 (unless FCC $350,000/quarter (2)
January 12, 2000, between Seal Rock license earlier assigned to
Broadcasters, LLC and ▇▇▇▇▇▇▇▇ Media Group, Inc. Programmer or otherwise earlier
(fka AK Media Group, Inc.) for television station terminated)
KCBA(TV) in Salinas, California
Joint Sales Agreement, dated September 10, 1999, Until termination of Put and Call $55,000/month (4)
between Rock On Radio, LLC and ▇▇▇▇▇▇▇▇ Media Group, Agreement, unless earlier
Inc. (fka AK Media Group, Inc.), for KKBY(FM). (3) terminated
(1) $275,000 plus certain costs and expenses.
(2) Estimated amount based on prior three fiscal quarters. Payment is set forth
in Attachment II to Time Brokerage Agreement and includes payment of
estimated employee costs, certain debt payments and certain insurance
costs, plus $45,000.
(3) KKBY(FM) now KFNK(FM).
(4) Plus certain annual and monthly adjustments.
315
SCHEDULE 5.5B
REAL PROPERTY
(SEPARATE DOCUMENT)
316
THE ▇▇▇▇▇▇▇▇ GROUP
PROPERTY LISTING
------------------------------------------------------------------------------------------------------------------------------------
SEGMENT DIVISION DESCRIPTION
------------------------------------------------------------------------------------------------------------------------------------
Corporate CORPORATE IT and Marketing office space (Lease dated 4/12/99, between ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇ and The ▇▇▇▇▇▇▇▇ Group, Inc., Tenant)
Corporate CORPORATE 351 ▇▇▇▇▇▇▇ common areas (Lease dated 4/12/99, between ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇
and The ▇▇▇▇▇▇▇▇ Group, Inc., Tenant)
Corporate CORPORATE Rainier Tower office space (Sublease Agreement between Board of Regents of the
University of Washington, Sublandlord and ▇▇▇▇▇▇▇▇ Communications, Inc., Subtenant)
Outdoor AK MA Main Office
Outdoor AK MA Sales Office (Lease Agreement, dated 7/17/97, between ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Associates, LP,
lessor and ▇▇▇▇▇▇▇▇ Group, Inc., d/b/a AK Media/MA)
Outdoor AK MA Sales Office (Indenture of Lease, between Ten North Main Street LLC, landlord and AK
Media Group, Inc., Tenant, dated 5/11/99)
Outdoor AK MA Comm building
Outdoor AK NY Nat'l Sales Office (Second Amendment of Lease, dated 2/12/01 between Sage Realty
Corporation Landlord, and ▇▇▇▇▇▇▇▇ Media Group, Inc., Tenant; First Amendment and
Extension of Lease between Landlord and Tenant, dated 12/17/91; Lease between
▇▇▇▇▇▇▇▇ Airport Advertising, Inc. and Landlord dated 5/20/81)
Outdoor AK WA AK Media/WA Admin & Operations Facility
Outdoor AK WA AK Media/WA Tacoma Sales Office (Lease Amendment, dated 5/9/00, between Rust
Building- Tacoma, LLC and AK Media Group, Inc., d/b/a AK Media/NW, of Lease, dated
12/30/96, between Rust Building-Tacoma, LLC and AK Media Group, Inc., d/b/a AK Media
Northwest
Outdoor AK WA AK Media/OR Admin Facility
Outdoor AK OR AK Media/OR Operations Facility
Outdoor AK OR AK Media/OR Real Estate Office (Office Lease, dated 1/11/00, between Flanders 720
LLC and AK Media Group, Inc., d/b/a AK Media/NW)
Outdoor Outdoor Mgmt Nat'l Sales Office (Second Amendment of Lease, dated 2/12/01 between Sage Realty
Corporation Landlord, and ▇▇▇▇▇▇▇▇ Media Group, Inc., Tenant; First Amendment and
Extension of Lease between Landlord and Tenant, dated 12/17/91; Lease between
▇▇▇▇▇▇▇▇ Airport Advertising, Inc. and Landlord dated 5/20/81)
Outdoor Outdoor Mgmt Los Angeles National Sales Office (First Amendment to Office Lease, dated 5/5/01,
between Wilshire Associates, LLC, Landlord and ▇▇▇▇▇▇▇▇ Media Group, Inc., Tenant;
Lease between) Landlord and AK Media Airport, dated 1/29/97)
Outdoor Outdoor Mgmt Chicago National Sales Office (Standard Office Lease, dated 8/1/99, between WDI
Realty Co., Landlord and AK Media Group, Inc., Tenant.)
Radio NEW CENTURY MEDIA prior KHHO offices in Tacoma (Lease Amendment, dated 5/9/00, between Rust Building-
Tacoma, LLC and AK Media Group, Inc., d/b/a AK Media/NW, of Lease, dated 12/30/96,
between Rust Building-Tacoma, LLC and AK Media Group, Inc., d/b/a AK Media Northwest
Radio NEW CENTURY MEDIA FM broadcast systems for ▇▇▇▇ ▇▇ & KBTB FM - we lease space on the tower and adjacent
building (Broadcast Site Lease, dated 9/30/98, between Ratelco Properties Corp,
Lessor and New Century Seattle Partners, LP, Lessee)
Radio NEW CENTURY MEDIA KHHO AM and KJR AM Tower Site
Radio NEW CENTURY MEDIA Main office space (Lease dated 4/12/99, between ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ and
The ▇▇▇▇▇▇▇▇ Group, Inc., Tenant)
TV KMTR Main studio facility
TV KMTR KMTR transmitter facility - we own the building and tower which sit on leased land.
TV KMTR KMOR transmitter - we lease space in the transmitter building and space on the tower,
no land involved. We do not own the tower. (Site Lease Agreement, dated 8/1/96
between ▇▇▇▇▇ ▇. ▇▇▇▇▇, the Lessor and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Lessee)
TV KMTR Microwave relay and KMTX translator - we lease tower space only (Joint Occupancy
Agreement, dated 12/31/87, between KEZI, Inc., d/b/a KEZI-TV, Eugene Television, Inc.
dba KVAL-TV and KMTR, Inc.)
TV KMTR KMTX transmitter - we lease tower space only (Letter Agreement, dated 6/3/86,
between KEZI-TV and KMTR-TV regarding Mt. Nebo translator site in Roseburg)
TV KMTR KMTX translator - we lease tower space only (Lease Agreement for Space on Tower and
Space in Building, dated 5/1/97, between Subar Enterprises, a JV of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
and ▇▇▇ ▇. ▇▇▇▇▇▇▇ the Successor in interest to Umpqua Research Company, Lessor and
▇▇▇▇▇ Broadcast Group, LP)
TV KMTR Microwave relay - we lease tower space only (Joint Occupancy Agreement, dated
12/31/87, between KEZI, Inc., d/b/a KEZI-TV, Eugene Television, Inc. dba KVAL-TV and
KMTR, Inc.)
TV KMTR KMTZ Transmitter facility - we lease tower space only (Joint Occupancy Agreement,
dated 12/31/87, between KEZI, Inc., d/b/a KEZI-TV, Eugene Television, Inc. dba
KVAL-TV and KMTR, Inc.)
SCHEDULE 5.5B
REAL PROPERTY
----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ZIP CODE OWN/LEASE SQUARE FOOTAGE
----------------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Leased 7,600
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Leased 21,979
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Leased 16,814
▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ OWNED* 22,000
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ LEASED 1,873
▇▇ ▇. ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ LEASED 1,952
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ OWNED* 6,225
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ Leased 2,200
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ OWNED* 24,966
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ Leased 1,185
▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ OWNED* 4,243
▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ OWNED* 6,680
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Leased 570
▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ Leased 4,000
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Leased 1,841
▇▇▇ ▇. ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Leased 3,323
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Leased 4,254
Cougar Mountain WA LEASED* 800
2622, 2921, ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇ OWNED* 3,456
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Leased 31,387
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ OWNED* 10,900
Coburg ▇▇▇▇▇ ▇▇▇▇▇▇ OR OWNED* 1,500
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ OR LEASED* 50
▇▇▇▇▇ Mtn Sutherlin OR LEASED* ▇▇
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ OR ▇▇▇▇▇▇* ▇▇
▇▇▇▇▇▇ ▇▇▇▇ Tri-Cities OR LEASED* ▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ OWNED* 200
Noah Butte Coos Bay OR OWNED* 600
317
TV KMTR KMTZ Translator facility - land lease, we own facility (Road Use Permit and Site
Lease, dated 12/31/92, between ▇▇▇▇ ▇▇▇▇▇▇▇ Mutual Life Insurance Co. and KMTR
Newsource 16, The ▇▇▇▇▇▇▇▇ Group, Inc.)
TV KMTR leased KMTZ M/W relay facility (Renewal Lease, dated 11/1/98 between Black Tail
Development LLC, Landlord and KEZI, Inc. and ▇▇▇▇▇ Broadcast Group Limited
Partnership successor to KMTR, Inc., collectively the Tenant)
TV KCBA/KION Broadcast facility
TV KCBA/KION Space leased to Access Monterey Penninsula
TV KCBA KCBA Tower Site - land lease, we own the tower (Ground Lease Agreement, dated
12/12/80 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
d/b/ Gabilan Cattle Co., Lessors and ▇▇▇▇ Broadcasting Co., Inc., Assigned to Cyperss
Broadcasting, Inc.)
TV KION KION Tower Site - land lease, we own the tower (Communication Site Land Lease, dated
8/13/99 between ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LP, Lessor and AK Media Group, Inc., dba KION TV,
Lessee)
TV KVIQ Broadcast Facility
TV KVIQ KVIQ Tower Site - land lease, we own the tower (Agreement between ▇▇▇▇▇▇
Broadcasting Company and KVIQ-TV6, dated 1/1/98)
TV KFTY Broadcast Facility
TV KFTY Broadcast Tower (Lease, dated 10/14/80, between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ & Sons, Lessor
and Sonoma Broadcasting, Inc., Lessee)
TV NYHQ one-story office building on 2 acres
TV WIXT one-story bldg. w/ offices, tv studio & garage on 4 acres
TV WIXT 900 ft. TV tower w/ bldg. & garage on 98 acres
TV WIVT/WBGH two-story bldg. w/ offices, tv studio & 500 ft. TV on 7 acres
TV WOKR one-story bldg. w/ offices, tv studio & garage
TV WOKR 300 ft. TV tower w/ bldg. on 0.5 acre
TV WUTR one-story bldg. w/ offices, tv studio, garage & 375 ft. TV tower on 21 acres
TV WWTI one-story bldg. w/ offices & tv studio (Lease Extension Agreement, dated 12/1/98,
between Stateway Plaza Shopping Center and ▇▇▇▇▇ Broadcasting Grup of Watertown, LP,
original Lease between Stateway Plaza Shopping Center and ▇▇▇▇▇▇▇▇ Broadcast
Associates, dated 10/86)
TV WWTI 1,000 ft. TV tower w/ small bldg. on 16.5 acres
TV KCOY Studio & Office Facilities
TV KCOY Transmitter Site - sits on leased land (Communications Use Lease, dated 5/21/97,
between Benedek Broadcasting Corp., dba KCOY-TV, as Lessee and the USA acting through
the Forest Service, Department of Agriculture, as Lessor)
TV KCOY Sales & News Bureau (Standard Industrial/Commercial Multi-Tenant Lease-Modified Net,
dated 4/28/99 between Foothill Triangle, LLC, Lessor and AK Media Group, Inc.,
Lessee)
TV KCOY Sales & News Bureau (Sublease, dated June, 2000, between ▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ dba City Market and AK Media Group, Inc., of Lease, dated 10/4/96, between
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, lessor and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, dba City Meat Market, lessee)
TV KGET Studio & Office Facilities
TV KGET Transmitter Site - sits on leased land (Ground Lease, dated 8/14/67, between ▇▇▇▇▇ ▇.
▇'▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇, owner and ▇▇▇▇ County Broadcasting Co., lessee)
TV KGPE Studio & Office Facilities
TV KGPE Transmitter Site - sits on owned land
TV KKFX Transmitter Site - we lease space on tower only (Assignment of Contracts and Leases,
dated 5/9/00, between Fox 11, LLC and AK Media Group, Inc., assigning the Use
Agreement, dated 9/1/98 between Digisphere Broadcasting LP and Fox 11, LLC and
Communications Use Lease, dated 7/15/97 between Digisphere Broadcasting (KSLY-FM) and
USA acting through the Forest Service)
TV KVOS TV Office space & broadcast facility
TV KVOS TV Transmitter building. Tower and related facilities on State owned land. KVOS has
land use rights for the tower and related equipment. (Communications Site Agreement,
dated 4/12/76, between State of Washington and KVOS Television Corporation)
TV KVOS TV LTD Office space (Lease, dated 5/2/96, between Poplar Properties, Ltd., Lessor and KVOS
TV LTD, Lessee
TV KTVF TV Office space & broadcast facility (Building Lease Agreement, dated 8/2/99, between
C&N Partnership and AK Media Group)
TV KTVF TV Transmitter/tower site (Tower Lease, dated 8/2/99 between Fourth and Lacey, LLC and
AK Media Group, Inc.)
TV WBGH TV Tower (Antenna Site Lease, dated ____, between Pinnacle Towers, Inc., Lessor and
Central NY News, Inc., Lessee)
Bennet Butte Bandon OR Leased* ▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ Leased* 50
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ OWNED* 30,000
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ OWNED* 17,000
Fremont Peak CA Leased* 1,200
Toro Peak CA Leased* 2,175
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ OWNED* 7,128
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ LEASED* 1,680
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ OWNED* ▇▇,▇▇▇
▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇ LEASED* 900
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ LEASED* 15,000
▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ OWNED* 25,000
▇▇▇▇▇▇ ▇▇. Pompey NY OWNED* 2,700
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ OWNED* 11,000
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ OWNED* 32,000
Pinnacle Hill Brighton NY OWNED* 2,300
▇▇▇▇▇ ▇▇▇▇ ▇▇. Utica NY OWNED* 12,000
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ Leased* 10,000
▇▇▇▇▇ ▇▇. Denmark NY OWNED* 750
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ OWNED* 13,000
Tepesquet Peak Santa ▇▇▇▇▇▇▇ County CA Owned* 1,320
▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ Leased 2,100
▇▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Leased 2,500
▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ OWNED* 33,117
Mt ▇▇▇▇▇▇▇▇ ▇▇▇▇ County CA Owned* 1,727
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ OWNED* 16,500
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ OWNED* 2,172
Cuesta Peak San Luis Obispo CA Leased* 4
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ OWNED* ▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ LEASED* ▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇ Leased 8108
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ LEASED* 12267
AK Natl Bk ▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Leased* 600
Tower is located on top of building. We
lease space in the building and the
space on top of the building on which
the ower sits.
▇▇▇▇▇▇▇▇ ▇▇▇▇ Binghampton NY LEASED* 100
* POST CLOSING DATE MORTGAGED PROPERTIES
318
SCHEDULE 5.5C
INTELLECTUAL PROPERTY
U.S. TRADEMARKS:
================================= ================================= ===================== =============================
REGISTERED OWNER TRADEMARK DESCRIPTION REGISTRATION NUMBER REGISTRATION
(Class) DATE
--------------------------------- --------------------------------- --------------------- -----------------------------
▇▇▇▇▇▇▇▇ Media Group, Inc. INSIDE OUTDOOR (35) 2,466,429 7/3/01
--------------------------------- --------------------------------- --------------------- -----------------------------
▇▇▇▇▇▇▇▇ Communications, Inc.(1) PROJECT HANGTIME AND DESIGN 8/6/96
(42) 1,991,067
--------------------------------- --------------------------------- --------------------- -----------------------------
▇▇▇▇▇▇▇▇ Media Group, Inc. FASTFLEX (35, 42) 2,326,491 3/7/00
--------------------------------- --------------------------------- --------------------- -----------------------------
▇▇▇▇▇▇▇▇ Media Group, Inc. WHERE IDEAS GET BIGGER (35, 42) 2,326,513 3/7/00
--------------------------------- --------------------------------- --------------------- -----------------------------
STATE TRADEMARKS:
============================== ============================== ========= ============= ============ ========== =========
REGISTERED OWNER TRADEMARK DESCRIPTION (Class) STATE SERIAL NO. REG. NO. DURATION RENEWAL
FILE DATE REG. DATE
------------------------------ ------------------------------ --------- ------------- ------------ ---------- ---------
▇▇▇▇▇▇▇▇ Communications EYESTREET PRODUCTIONS CA 045,341 045,341 10 Years 12/5/05
Group(2) 12/3/95 12/3/95
------------------------------ ------------------------------ --------- ------------- ------------ ---------- ---------
New Century Seattle Partners SUMMER JAM (35) WA 025,382 025,382 6 Years 8/28/02
L.P.(3) 8/28/96 8/28/96
------------------------------ ------------------------------ --------- ------------- ------------ ---------- ---------
New Century Seattle Partners ▇▇▇▇ 93 FM (35) WA 025,383 025,383 6 Years 8/28/02
L.P.(3) 8/28/96 8/28/96
------------------------------ ------------------------------ --------- ------------- ------------ ---------- ---------
New Century Seattle Partners KJR 95.7 FM GREATEST HITS OF WA 025,384 025,384 6 Years 8/28/02
L.P.(3) THE 70'S (LOGO) (35) 8/28/96 8/28/96
------------------------------ ------------------------------ --------- ------------- ------------ ---------- ---------
New Century Seattle Partners SPORTS RADIO 950 AM (& WA 025,385 025,385 6 Years 8/28/02
L.P.(3) DESIGN) (35) 8/28/96 8/28/96
------------------------------ ------------------------------ --------- ------------- ------------ ---------- ---------
KJR -- FM/New Century WIN AT WOKR (42) WA 026,875 026,875 6 Years 4/13/04
Media(3) 4/13/98 4/13/98
------------------------------ ------------------------------ --------- ------------- ------------ ---------- ---------
FOREIGN TRADEMARK:
-------------------------- --------------------------------- ------------------------ -----------------------
Registered Trademark Description Registration Number Registration
Owner Date
-------------------------- --------------------------------- ------------------------ -----------------------
AK Media Group, Inc.(2) DIGITALCENTRALCASTING 1,337,765 1/30/01
-------------------------- --------------------------------- ------------------------ -----------------------
FOREIGN PENDING TRADEMARK:
======================= ======================== ======== ============= ============= ============================
CLIENT DESCRIPTION CLASS COUNTRY SERIAL NO. COMMENTS
(AGENT) FILE DATE
----------------------- ------------------------ -------- ------------- ------------- ----------------------------
▇▇▇▇▇▇▇▇ Media Group,
Inc. DIGITAL CENTRALCASTING n/a Canada 1,031,549 6/26/01: CLIENT DECIDED TO
(▇▇▇▇▇▇▇) 10/7/99 ABANDON
US Priority (Will Lapse: 11/3/01)
(4/9/99)
----------------------- ------------------------ -------- ------------- ------------- ----------------------------
(1) n/k/a The ▇▇▇▇▇▇▇▇ Group, Inc. by reason of change of corporate name.
(2) n/k/a ▇▇▇▇▇▇▇▇ Media Group, Inc. by reason of change of corporate name.
(3) n/k/a ▇▇▇▇▇▇▇▇ Media Group, Inc. by reason of asset transfer from
wholly-owned subsidiary.
319
SCHEDULE 5.5C
(CONTINUED)
INTELLECTUAL PROPERTY
U.S. PENDING TRADEMARKS:
================================= ==================================== ======= ========== =========== ===========
APPLICANT/OWNER DESCRIPTION (CLASS) LOGO FILE DATE SERIAL NO. PUB
FILE BASE (NOA)
--------------------------------- ------------------------------------ ------- ---------- ----------- -----------
▇▇▇▇▇▇▇▇ Interactive I KNOW (35) n/a 7/6/00 76/085,024 3/27/01
Media, Inc. ITU (6/19/01)
--------------------------------- ------------------------------------ ------- ---------- ----------- -----------
▇▇▇▇▇▇▇▇ Interactive I KNOW (42) n/a 7/6/00 76/085,014 3/27/01
Media, Inc. ITU
--------------------------------- ------------------------------------ ------- ---------- ----------- -----------
▇▇▇▇▇▇▇▇ Interactive I KNOW AND DESIGN 7/6/00 76/085,013
Media, Inc. (35) [LOGO] ITU
--------------------------------- ------------------------------------ ------- ---------- ----------- -----------
▇▇▇▇▇▇▇▇ Interactive I KNOW AND DESIGN 7/6/00 76/085,012
Media, Inc. (42) [LOGO] ITU
--------------------------------- ------------------------------------ ------- ---------- ----------- -----------
▇▇▇▇▇▇▇▇ Interactive THE I KNOW NETWORK 7/6/00 76/085,011
Media, Inc. AND DESIGN (35) [LOGO] ITU
--------------------------------- ------------------------------------ ------- ---------- ----------- -----------
▇▇▇▇▇▇▇▇ Interactive Media, Inc. THE I KNOW NETWORK AND DESIGN (42) 7/6/00 76/085,010
[LOGO] ITU
--------------------------------- ------------------------------------ ------- ---------- ----------- -----------
▇▇▇▇▇▇▇▇ Media Group, Inc. YOU'VE GOT PROOF (35) n/a 4/26/99 75/691,808 12/21/99
ITU (3/14/00)
--------------------------------- ------------------------------------ ------- ---------- ----------- -----------
================================= ==============================================
APPLICANT/OWNER COMMENTS
--------------------------------- ----------------------------------------------
▇▇▇▇▇▇▇▇ Interactive 6/26/01: NO FURTHER WORK NEEDED
Media, Inc. PER CLIENT
(Will Lapse: 12/19/01)
--------------------------------- ----------------------------------------------
▇▇▇▇▇▇▇▇ Interactive 6/26/01: NO FURTHER WORK NEEDED
Media, Inc. PER CLIENT
6/25/01: Extension to Oppose due by Motorola
--------------------------------- ----------------------------------------------
▇▇▇▇▇▇▇▇ Interactive 4/18/01: LET IT LAPSE PER ▇▇▇▇
Media, Inc. ▇▇▇▇▇
4/11/01: Further Examination Suspended
(Prior ▇▇▇▇ 76/085,686 Cited) Will Lapse
--------------------------------- ----------------------------------------------
▇▇▇▇▇▇▇▇ Interactive 4/18/01: LET IT LAPSE PER ▇▇▇▇
Media, Inc. ▇▇▇▇▇
4/11/01: Further Examination Suspended
(Prior ▇▇▇▇ 76/085,686 Cited) Will Lapse
--------------------------------- ----------------------------------------------
▇▇▇▇▇▇▇▇ Interactive 4/18/01: LET IT LAPSE PER ▇▇▇▇
Media, Inc. ▇▇▇▇▇
4/11/01: Further Examination Suspended
(Prior ▇▇▇▇ 76/085,686 Cited) Will Lapse
--------------------------------- ----------------------------------------------
▇▇▇▇▇▇▇▇ Interactive Media, Inc. 4/18/01: LET IT LAPSE PER ▇▇▇▇ ▇▇▇▇▇
4/11/01: Further Examination Suspended
(Prior ▇▇▇▇ 76/085,686 Cited) Will Lapse
--------------------------------- ----------------------------------------------
▇▇▇▇▇▇▇▇ Media Group, Inc. 4/18/01: LET IT LAPSE PER ▇▇▇▇ ▇▇▇▇▇
(Will Lapse: 9/14/01)
--------------------------------- ----------------------------------------------
320
SCHEDULE 5.5C
(CONTINUED)
INTELLECTUAL PROPERTY
UNREGISTERED COMMON LAW TRADEMARKS:
=========================== ======================================== ========= =========== =========== ===========
APPLICANT/OWNER ▇▇▇▇ (CLASS) FILE DATE SERIAL NO. PUB
LOGO FILE BASE (NOA)
--------------------------- ---------------------------------------- --------- ----------- ----------- -----------
▇▇▇▇▇▇▇▇ Group, Inc. The PROGRESSIVE HD MOBILE PRODUCTIONS (38) n/a 7/11/00 76/086,832
ITU
--------------------------- ---------------------------------------- --------- ----------- ----------- -----------
▇▇▇▇▇▇▇▇ Group, Inc. The PROGRESSIVE HD MOBILE PRODUCTIONS (41) n/a 7/11/00 76/086,833
ITU
--------------------------- ---------------------------------------- --------- ----------- ----------- -----------
▇▇▇▇▇▇▇▇ Media Group, Inc. DIGITAL CENTRALCASTING (35, 38, 41) n/a 4/9/99 75/678,435
ITU
--------------------------- ---------------------------------------- --------- ----------- ----------- -----------
▇▇▇▇▇▇▇▇ Media Group, Inc. AK MEDIAPRINT AND DESIGN (42) [LOGO] 5/19/99 75/709,034 1/18/00
ITU (4/11/00)
--------------------------- ---------------------------------------- --------- ----------- ----------- -----------
AK Media Group, Inc.(1) KJR-TV (38) n/a 5/27/99 75/716,085 5/23/00
ITU (8/15/00)
--------------------------- ---------------------------------------- --------- ----------- ----------- -----------
▇▇▇▇▇▇▇▇ Group, Inc. The (CORPORATE LOGO) [LOGO] n/a n/a n/a
--------------------------- ---------------------------------------- --------- ----------- ----------- -----------
=========================== =============================================
APPLICANT/OWNER COMMENTS
--------------------------- ---------------------------------------------
▇▇▇▇▇▇▇▇ Group, Inc. The ABANDONED
7/18/01: Response to OA due
6/26/01: Client decided to abandon
--------------------------- ---------------------------------------------
▇▇▇▇▇▇▇▇ Group, Inc. The ABANDONED
7/18/01: Response to OA due
6/26/01: No further work needed per client
--------------------------- ---------------------------------------------
▇▇▇▇▇▇▇▇ Media Group, Inc. ABANDONED
6/26/01: No further work is necessary
(Final Refusal & Appeal Not filed)
--------------------------- ---------------------------------------------
▇▇▇▇▇▇▇▇ Media Group, Inc. ABANDONED (▇▇▇▇ Not Being Used)
4/10/01: Client decided to abandon
--------------------------- ---------------------------------------------
AK Media Group, Inc.(1) ABANDONED
2/12/01: Client decided to abandon
--------------------------- ---------------------------------------------
▇▇▇▇▇▇▇▇ Group, Inc. The NOT APPLIED FOR REG.
4/18/01: Per ▇▇▇▇ ▇▇▇▇▇, no need to register
--------------------------- ---------------------------------------------
U.S. COPYRIGHTS:
----------------------------- ------------------------ -------------- --------------------------
TITLE REGISTRATION NO. DATE OF ISSUE REGISTERED OWNER
----------------------------- ------------------------ -------------- --------------------------
AK MEDIA ANSWER BOOK Reg. No.: TX ▇-▇▇▇-▇▇▇ 11/8/99 AK Media Group, Inc.(1)
Expires: July 23, 2074
----------------------------- ------------------------ -------------- --------------------------
AK MEDIA INSIDE OUTDOOR GUIDE Reg. No.: TX ▇-▇▇▇-▇▇▇ 11/8/99 AK Media Group, Inc.(1)
Expires: July 23, 2074
----------------------------- ------------------------ -------------- --------------------------
(1) n/k/a ▇▇▇▇▇▇▇▇ Media Group, Inc. by reason of change of corporate name
321
SCHEDULE 5.5B
(SEPARATE DOCUMENT)
322
SCHEDULE 7.1
CERTAIN EXISTING INDEBTEDNESS
(SEPARATE DOCUMENT)
323
SCHEDULE 7.1
CERTAIN OTHER EXISTING INDEBTEDNESS
----------------------------------------------------------------------------------------------------------------------------------
Current Long Term Total
Description Rate Term Portion Portion Debt
----------- -------- --------- ---------- ---------- ----------
Deferred Compensation - New Century Media 91,237 - 91,237
Deferred Compensation - Full House Sports & Entertainment 448,976 1,467,576 1,916,552
---------- ---------- ----------
540,213 1,467,576 2,007,789
---------- ---------- ----------
Surety bonds 397,002
Note payable to employees(1) 500,000
----------
Total Other Indebtedness $ 897,002
==========
(1) See Schedule 7.9 describing transactions with affiliates
324
SCHEDULE 7.2
CERTAIN EXISTING LIENS
COMPANY JURISDICTION SECURED PARTY FILE DATE FILE NUMBER
AK Mobile Television, Inc. Washington KeyCorp Leasing 6/7/00 20001590225
The ▇▇▇▇▇▇▇▇ Group, Inc. Washington Copelco Capital, 12/27/99 00993610376
Inc.
325
SCHEDULE 7.3
CERTAIN EXISTING INVESTMENTS:
INVESTMENTS:
1. Central Media/adDirect, Inc. (Fast Channel) made by $ 2,615,000
The ▇▇▇▇▇▇▇▇ Group, Inc.
2. Maveron Equity Partners 2000, LP made by 300,000
The ▇▇▇▇▇▇▇▇ Group, Inc.(1)
3. i5 Digital, LLC, made by ▇▇▇▇▇▇▇▇ Ventures, Inc. 1,500,000
4. Radio Central, Inc., made by ▇▇▇▇▇▇▇▇ Ventures, Inc. 500,000
5. Nonvoting Common Stock of ▇▇▇▇▇ Television 17,000,000
of NY, purchased by Central NY News, Inc.
6. ▇▇▇▇▇▇▇▇.▇▇▇ made by ▇▇▇▇▇▇▇▇ Media Group, Inc.(2) 58,622
7. Payment under KKBY Put & Call Agreement 4,080,195
made by ▇▇▇▇▇▇▇▇ Media Group, Inc.(3)
8. Advance to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ from The ▇▇▇▇▇▇▇▇ 102,344
Group, Inc.(4)
9. Loan to ▇▇▇▇▇ ▇▇▇▇▇▇ from The ▇▇▇▇▇▇▇▇ Group, Inc.(5) 375,000
LMA'S:
1. WETM-TV Local Marketing Agreement, dated February 1,
2000, between ▇▇▇▇▇ Television of New York and Central NY News, Inc.
2. Joint Sales Agreement, dated September 1, 1999, between
Rock On Radio, LLC for and under contract to become the
licensee of FM broadcast Station KKBY(FM), and AK Media
Group, Inc.
3. Time Brokerage Agreement, dated January 12, 2000,
between Seal Rock Broadcasters, LLC and AK Media Group,
Inc. for television station KCBA(TV) in Salinas,
California
--------------
(1) Remaining commitment for Maveron is $700,000
(2) Bankruptcy petition recently filed by ▇▇▇▇▇▇▇▇.▇▇▇.
(3) Bears interest and will be used to determine station's purchase
price under Put/Call Option to acquire radio station KFNK. This does
not represent an ownership interest.
(4) See Schedule 7.9 -- Certain Transactions with Affiliates
(5) Addressed in Retirement Agreement with ▇▇▇▇▇ ▇▇▇▇▇▇, referenced in
Schedule 7.9 -- Certain Transactions with Affiliates
326
SCHEDULE 7.4
CERTAIN EXISTING CONTINGENT OBLIGATIONS
1. NBA Plan withdrawal -- liability in an amount not expected to exceed
$3 million as referenced in Section 5.11B.
2. Potential liability for complete withdrawal from Multi-Employer
Plans in an amount not expected to exceed $1 million as referenced
in Section 5.11E
3. Guaranties of Operating Leases described in Schedule 1.1B.
4. Existing Letters of Credit in the aggregate amount of $1,315,000,
which will be replaced by Letters of Credit issued under the Credit
Agreement(1).
(1) DETAIL OF LETTERS OF CREDIT
IN FAVOR OF DESCRIPTION AMOUNT HOLDING BANK REFERENCE #
Aetna Casualty & Surety Co. Health Plan reserve 500,000 First Union H158451
Employers Insurance of Workers Comp reserve 815,000 First Union S149887
Wausau
327
SCHEDULE 7.9
CERTAIN TRANSACTIONS WITH AFFILIATES
1. Advance to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $102,344 in principal
2. ▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ loan to Company for Radio
Central investment $500,000 in principal
3. Retirement Agreement and Consulting Agreement with ▇▇▇▇▇ ▇▇▇▇▇▇, Approximately $2,000,000
dated as of July 24, 2001 compensation package.