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EXHIBIT 4.2
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$2,000,000,000
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
CLEAR CHANNEL COMMUNICATIONS, INC.
CERTAIN LENDERS
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT,
FLEET NATIONAL BANK, AS DOCUMENTATION AGENT,
BANK OF MONTREAL, AS CO-SYNDICATION AGENT,
AND
TORONTO DOMINION (TEXAS), INC., AS CO-SYNDICATION AGENT
JUNE 15, 2000
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BANC OF AMERICA SECURITIES LLC, AS ARRANGER
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TABLE OF CONTENTS
Page
ARTICLE 1
Definitions
Section 1.1 Defined Terms..........................................................................2
Section 1.2 Amendments and Renewals...............................................................19
Section 1.3 Construction..........................................................................19
ARTICLE 2
Advances
Section 2.1 The Advances..........................................................................19
Section 2.2 Manner of Borrowing and Disbursement..................................................20
Section 2.3 Interest..............................................................................23
Section 2.4 Fees..................................................................................24
Section 2.5 Prepayment............................................................................25
Section 2.6 Reduction and Change of Commitment....................................................26
Section 2.7 Non-Receipt of Funds by the Administrative Agent......................................28
Section 2.8 Payment of Principal of Advances......................................................28
Section 2.9 Reimbursement.........................................................................28
Section 2.10 Manner of Payment.....................................................................29
Section 2.11 LIBOR Lending Offices.................................................................29
Section 2.12 Sharing of Payments...................................................................30
Section 2.13 Calculation of LIBOR Rate.............................................................30
Section 2.14 Booking Loans.........................................................................30
Section 2.15 Taxes.................................................................................30
Section 2.16 Letters of Credit.....................................................................33
ARTICLE 3
Conditions Precedent
Section 3.1 Conditions Precedent to Closing and the Initial Advance and the Letters of
Credit................................................................................39
Section 3.2 Conditions Precedent to All Advances and Letters of Credit............................40
ARTICLE 4
Representations and Warranties
Section 4.1 Representations and Warranties........................................................41
Section 4.2 Survival of Representations and Warranties, etc.......................................49
ARTICLE 5
General Covenants
Section 5.1 Preservation of Existence and Similar Matters.........................................50
Section 5.2 Business; Compliance with Applicable Law..............................................50
Section 5.3 Maintenance of Properties.............................................................50
Section 5.4 Accounting Methods and Financial Records..............................................50
Section 5.5 Insurance.............................................................................50
Section 5.6 Payment of Taxes and Claims...........................................................51
Section 5.7 Visits and Inspections................................................................51
Section 5.8 Payment of Debt for Borrowed Money....................................................51
Section 5.9 Use of Proceeds.......................................................................51
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Section 5.10 Indemnity.............................................................................51
Section 5.11 Environmental Law Compliance..........................................................52
Section 5.12 Conversion of Unrestricted Subsidiaries...............................................53
Section 5.13 Year 2000 Compliance..................................................................54
Section 5.14 AMFM Entities and SFX Entities........................................................54
Section 5.15 Collateral Sharing and Intercreditor Arrangement......................................55
ARTICLE 6
Information Covenants
Section 6.1 Quarterly Financial Statements and Information........................................56
Section 6.2 Annual Financial Statements and Information; Certificate of No Default................56
Section 6.3 Compliance Certificates...............................................................56
Section 6.4 Copies of Other Reports and Notices...................................................57
Section 6.5 Notice of Litigation, Default and Other Matters.......................................58
Section 6.6 ERISA Reporting Requirements..........................................................58
ARTICLE 7
Negative Covenants
Section 7.1 Debt for Borrowed Money...............................................................60
Section 7.2 Liens.................................................................................61
Section 7.3 Investments...........................................................................61
Section 7.4 Amendment and Waiver..................................................................61
Section 7.5 Liquidation, Disposition or Acquisition of Assets, Merger, New Subsidiaries...........61
Section 7.6 Dividends.............................................................................62
Section 7.7 Affiliate Transactions................................................................63
Section 7.8 Compliance with ERISA.................................................................63
Section 7.9 Leverage Ratio........................................................................63
Section 7.10 Interest Coverage Ratio. .............................................................63
Section 7.11 Sale and Leaseback....................................................................64
Section 7.12 Sale or Discount of Receivables.......................................................64
Section 7.13 Business of Clear Channel Television Licenses, Inc. and Clear Channel
Broadcasting Licenses, Inc............................................................64
ARTICLE 8
Default
Section 8.1 Events of Default.....................................................................64
Section 8.2 Remedies..............................................................................67
ARTICLE 9
Changes in Circumstances
Section 9.1 LIBOR Basis Determination Inadequate..................................................68
Section 9.2 Illegality............................................................................68
Section 9.3 Increased Costs.......................................................................68
Section 9.4 Effect On Base Rate Advances..........................................................70
Section 9.5 Capital Adequacy......................................................................70
Section 9.6 Rights of a Borrower in Respect of Consequential Losses...............................70
ARTICLE 10
Agreement Among Lenders
Section 10.1 Agreement Among Lenders...............................................................71
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Section 10.2 Lender Credit Decision................................................................73
Section 10.3 Benefits of Article...................................................................73
ARTICLE 11
Miscellaneous
Section 11.1 Notices...............................................................................74
Section 11.2 Expenses..............................................................................74
Section 11.3 Waivers...............................................................................75
Section 11.4 Determination by the Lenders Conclusive and Binding...................................75
Section 11.5 Set-Off...............................................................................75
Section 11.6 Assignment............................................................................76
Section 11.7 Counterparts..........................................................................78
Section 11.8 Severability..........................................................................78
Section 11.9 Interest and Charges..................................................................78
Section 11.10 Headings..............................................................................78
Section 11.11 Amendment and Waiver..................................................................78
Section 11.12 Exception to Covenants................................................................79
Section 11.13 No Liability of Issuing Bank..........................................................79
Section 11.14 Credit Agreement Governs..............................................................79
SECTION 11.15 GOVERNING LAW.........................................................................79
SECTION 11.16 WAIVER OF JURY TRIAL..................................................................80
SECTION 11.17 ENTIRE AGREEMENT......................................................................80
Section 11.18. Amendment and Restatement.............................................................80
Section 11.19. Confidentiality.......................................................................80
Section 11.20. Qualified Commercial Loan.............................................................81
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SCHEDULES AND EXHIBITS
Schedule 1.1: Existing Letters of Credit
Schedule 1.2: LIBOR Lending Offices
Schedule 1.3: Existing Liens
Schedule 1.4: Specified Percentages
Schedule 4.1(a): Subsidiaries
Schedule 4.1(h): Existing Litigation
Schedule 4.1(k): Material Adverse Changes
Schedule 7.1: Existing Indebtedness
Schedule 7.3: Existing Investments
Exhibit A: Form of Revolving Credit Note
Exhibit B: Form of Bid Rate Note
Exhibit C: Form of SFX/AMFM Limited Subsidiary Guaranty
Exhibit D: Form of Compliance Certificate
Exhibit E: Form of Assignment and Acceptance
Exhibit F: Form of Intercompany Notes
Exhibit G: Form of Intercompany Note Pledge Agreement
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$2,000,000,000
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDED AND RESTATED CREDIT AGREEMENT is dated as of June
15, 2000, among CLEAR CHANNEL COMMUNICATIONS, INC., a Texas corporation
("Borrower"), the Lenders from time to time party hereto, BANK OF AMERICA, N.A.,
a national banking association, as administrative agent for the Lenders, FLEET
NATIONAL BANK, as Documentation Agent, BANK OF MONTREAL, as Co-Syndication Agent
and TORONTO DOMINION (TEXAS), INC., as Co-Syndication Agent.
BACKGROUND
The Borrower and certain lenders entered into that certain Credit
Agreement dated as of September 30, 1994 in the maximum principal amount of
$350,000,000.
The Borrower and certain lenders entered into the certain Amended and
Restated Credit Agreement dated as of October 19, 1995 in the maximum principal
amount of $600,000,000.
The Borrower and certain lenders entered into the certain Second
Amended and Restated Credit Agreement dated as of August 1, 1996 in the maximum
principal amount of $1,040,000,000.
The Borrower and certain lenders entered into the certain Third Amended
and Restated Credit Agreement dated as of April 10, 1997, with Bank of America,
N.A. (formerly NationsBank, N.A. as successor by merger to NationsBank of Texas,
N.A.) as Administrative Lender (Third Amended and Restated Credit Agreement, as
amended through the date hereof, the "Original Credit Agreement").
The Borrower has requested that the Lenders amend and restate the
Original Credit Agreement to accommodate several proposed acquisitions and to
make certain other changes, and the Borrower and the Determining Lenders have
agreed to amend and restate the Original Credit Agreement in accordance with the
terms of Section 11.11 of the Original Credit Agreement.
In consideration of the mutual covenants and agreements contained
herein, and other good and valuable consideration hereby acknowledged, the
parties hereto agree that the Original Credit Agreement is being amended and
restated as follows:
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ARTICLE 1
Definitions
Section 1.1 Defined Terms. For purposes of this Agreement:
"Acquisition" shall mean (whether by purchase, exchange, issuance of
stock or other equity or debt securities, merger, reorganization or any other
method) (i) any acquisition by the Borrower or any of its Restricted
Subsidiaries of any other Person, which Person shall then become consolidated
with the Borrower or any such Restricted Subsidiary in accordance with GAAP, or
(ii) any acquisition by the Borrower or any of its Restricted Subsidiaries of
all or any substantial amount of the assets of any other Person. For purposes of
the preceding sentence, an amount of assets shall be deemed to be "substantial"
if such assets have a fair market value in excess of $1,000,000; provided,
however, that the purchase of equipment and other goods and services in the
ordinary course of business shall not be deemed to be "Acquisitions".
"ARN" means the Australian Radio Network Limited, PTY, an Australian
propriety company, 50% of whose Capital Stock is owned by the Borrower.
"Additional Costs" has the meaning set forth in Section 9.5 hereof.
"Administrative Agent" means Bank of America, N.A., as administrative
agent for the Lenders, or such successor administrative agent appointed pursuant
to Section 10.1(b) hereof.
"Advance" means a Revolving Credit Advance or a Bid Rate Advance and
"Advances" means Revolving Credit Advances and Bid Rate Advances.
"Affiliate" means any Person that directly or indirectly through one or
more Subsidiaries Controls, or is Controlled By or Under Common Control with,
the Borrower.
"Affiliation Agreements" means all affiliation agreements of the
Borrower and each Subsidiary with Fox Broadcasting.
"Agreement" means this Fourth Amended and Restated Credit Agreement, as
amended or renewed from time to time.
"AMFM" means AMFM, Inc.
"AMFM Acquisition" means the acquisition by the Borrower of AMFM and
its direct and indirect subsidiaries in accordance with the terms of the AMFM
Acquisition Documentation.
"AMFM Acquisition Documentation" means that certain Agreement and Plan
of Merger, dated as of October 2, 1999, among the Borrower, AMFM and CCU Merger
Sub, Inc. and all related documentation in effect on May 1, 2000.
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"AMFM Entities" means AMFM and all of its direct and indirect
subsidiaries that are Restricted Subsidiaries at the time of determination.
"AMFM Reduced Public Debt Permitted Amount" means an amount equal to
$125,000,000.
"AMFM/SFX Obligor" means AMFM Operating, Inc., Capstar Broadcasting
Partners, Inc. and SFX Entertainment, Inc., provided that, the term AMFM/SFX
Obligor may include any other AMFM Entity or SFX Entity that receives an
Investment from the Borrower or any Restricted Subsidiary (other than another
AMFM Entity or SFX Entity), so long as the Administrative Agent has consented to
such Person as an AMFM/SFX Obligor in writing.
"Amortization Date" means September 30, 2000.
"Applicable Environmental Laws" means applicable federal, state or
local laws, rules and regulations pertaining to health or the environment,
including without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986 (as amended from time to time, "CERCLA"), the
Resource Conservation and Recovery Act of 1976, as amended by the Used Oil
Recycling Act of 1980, the Solid Waste Disposal Act amendments of 1980, and the
Hazardous and Solid Waste Amendments of 1984 (as amended from time to time,
"RCRA"), the Texas Water Code, and the Texas Solid Waste Disposal Act.
"Applicable Law" means (i) in respect of any Person, all provisions of
constitutions, statutes, laws, ordinances, rules, regulations and orders of
governmental bodies, or regulatory agencies applicable to such Person, and all
orders and decrees of all courts and arbitrators in proceedings or actions to
which the Person in question is a party and (ii) in respect of contracts made or
performed in the State of Texas, "Applicable Law" shall also mean the laws of
the United States of America, including, without limiting the foregoing, 12 USC
Sections 85 and 86, as amended to the date hereof and as the same may be amended
at any time and from time to time hereafter, and any other statute of the United
States of America now or at any time hereafter prescribing the maximum rates of
interest on loans and extensions of credit, and the laws of the State of Texas,
including, without limitation, Chapter 303 of the Texas Finance Code, as
amended, and any other statute of the State of Texas now or at any time
hereafter prescribing maximum rates of interest on loans and extensions of
credit, including, without limitation and to the extent available, Chapter 306
of the Texas Finance Code, provided however, that the parties hereto agree
pursuant to Texas Finance Code Section 346.004 that the provisions of Chapter
346 of Texas Finance Code, as amended, shall not apply to this Agreement, the
Advances or any other Loan Papers hereunder.
"Applicable Margin" means the following per annum percentages,
applicable in the following situations:
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LIBOR
Applicability Percentage
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(i) If the Leverage Ratio is not less than 6.0 to 1 1.0000
(ii) If the Leverage Ratio is less than 6.0 to 1 but is 0.8750
not less than 5.75 to 1
(iii) If the Leverage Ratio is less than 5.75 to 1 but is 0.7500
not less than 5.50 to 1
(iv) If the Leverage Ratio is less than 5.50 to 1 but is 0.6250
not less than 5.00 to 1
(v) If the Leverage Ratio is less than 5.00 to 1 but is 0.5000
not less than 4.50 to 1
(vi) If the Leverage Ratio is less than 4.50 to 1 0.4000
The Applicable Margin payable by the Borrower on the Revolving Credit Advances
outstanding hereunder shall be subject to reduction or increase, as applicable
and as set forth in the table above, on a quarterly basis according to the
performance of the Borrower as tested by the Leverage Ratio. Except as set forth
in the last sentence hereof, any such increase or reduction in the Applicable
Margin provided for herein shall be effective three Business Days after receipt
by Administrative Agent of the applicable financial statements. If financial
statements of the Borrower setting forth the Leverage Ratio are not received by
the Administrative Agent by the date required pursuant to Section 6.1 hereof,
the Applicable Margin shall be determined as if the Leverage Ratio is not less
than 6.00 to 1 until such time as such financial statements are received. For
the final quarter of any fiscal year of the Borrower, the Borrower may provide
its unaudited financial statements, subject only to year-end adjustments, for
the purpose of adjusting the Applicable Margin.
"Assignees" means any assignee of a Lender pursuant to an Assignment
Agreement and shall have the meaning ascribed thereto in Section 11.6 hereof.
"Assignment Agreement" has the meaning ascribed thereto in Section 11.6
hereof.
"Authorized Signatory" means such senior personnel of the Borrower as
may be duly authorized and designated in writing by the Borrower to execute
documents, agreements and instruments on behalf of the Borrower, and to request
Advances and Letters of Credit hereunder.
"Bank Affiliate" means the holding company of any Lender, or any wholly
owned direct or indirect subsidiary of such holding company or of such Lender.
"Bank of America Guaranty" means the Guaranty in favor of Bank of
America, N.A. (formerly NationsBank, N.A., as successor by merger to NationsBank
of Texas, N.A.), on behalf of RDS Broadcasting, Inc. in the amount of
$9,575,000.
"Base Rate Advance" means any Revolving Credit Advance bearing interest
at the Base Rate Basis.
"Base Rate Basis" means, for any day, a per annum interest rate equal
to the lesser of (a) the Highest Lawful Rate on such day, or (b) the higher of
(i) the sum of (A) 0.50% plus (B) the Federal Funds Rate on such day or (ii) the
Prime Rate on such day. The Base Rate Basis shall be adjusted
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automatically as of the opening of business on the effective date of each change
in the Prime Rate or Federal Funds Rate, as the case may be, to account for such
change.
"Bid Rate Advance" means an Advance the interest rate on which is
determined by agreement between the Borrower and the Lender making such Advance
pursuant to Section 2.1(b) hereof.
"Bid Rate Note" means each promissory note of the Borrower evidencing
Bid Rate Advances, substantially in the form of Exhibit B hereto, together with
any extension, renewal or amendment thereof or substitution therefor.
"Borrower" means Clear Channel Communications, Inc., a Texas
corporation.
"Business Day" shall mean a day on which banks are open for the
transaction of business as required by this Agreement in Dallas, Texas and New
York, New York and, with respect to any LIBOR Advance, a domestic business day
in London, England and a day on which commercial banks are open for
international business in London, England (including dealings in United States
dollar deposits), and as otherwise relevant to the determination to be made or
the action to be taken.
"Capital Expenditures" means expenditures for the purchase of tangible
assets of long-term use which are capitalized in accordance with GAAP; provided,
however, Capital Expenditures shall not include assets acquired through trade
without any expenditure of cash, such trade capital expenditures not to exceed
$25,000,000 in aggregate value per year, such valuation to be determined using
the lesser of the fair market value of assets received or the value of air-time
run in exchange for the assets received.
"Capital Stock" means, as to any Person, the equity interests in such
Person, including, without limitation, the shares of each class of capital stock
of any Person that is a corporation and each class of partnership interests
(including, without limitation, general, limited and preference units) in any
Person that is a partnership.
"Capitalized Lease Obligations" means that portion of any obligation of
the Borrower or any Restricted Subsidiary as lessee under a lease which at the
time would be required to be capitalized on a balance sheet prepared in
accordance with GAAP.
"CCC-Houston" means CCC-Houston AM, Ltd., a Texas limited partnership
and a Subsidiary of the Borrower.
"Closing Date" means the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral Release Date" means, (a) when applicable to any AMFM Entity
or any Intercompany Notes executed by any AMFM Entity, that date upon which all
public indebtedness of all AMFM Entities in the aggregate is less than or equal
to the AMFM Reduced Public Debt Permitted Amount, and (b) when applicable to any
SFX Entity or any Intercompany Notes executed
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by any SFX Entity, that date upon which all public indebtedness of all SFX
Entities in the aggregate is less than or equal to the SFX Reduced Public Debt
Permitted Amount.
"Commitment" means an amount not to exceed $2,000,000,000, as reduced
from time to time pursuant to Section 2.6 hereof.
"Communications Act" means, collectively, the Communications Act of
1934, as amended by the Telecommunications Act of 1996, and as further amended,
and the rules and regulations promulgated thereunder, as from time to time in
effect.
"Control" or "Controlled By" or "Under Common Control" means
possession, directly or indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of voting securities, by
contract or otherwise); provided, however, that (a) in the event that no one
Person owns more than 50% of the outstanding Capital Stock of a corporation or
entity, any Person which beneficially owns, directly or, by contract or law,
indirectly, 10% or more (in number of votes) of the securities having ordinary
voting power for the election of directors (or other managing authority) of such
corporation or entity shall be conclusively presumed to control such corporation
or entity or (b) in the event that one Person owns greater than 50% of the
outstanding Capital Stock of a corporation or entity, any Person which
beneficially owns, directly or, by contract or law, indirectly, greater than 20%
or more (in number of votes) of the securities having ordinary voting power for
the election of directors (or other managing authority) of such corporation or
entity shall be conclusively presumed to control such corporation.
"Controlled Group" means, as to any Person, all members of a controlled
group of corporations and all trades or businesses (whether or not incorporated)
which are under common control with such Person and which, together with such
Person, are treated as a single employer under Section 414(b), (c), (m) or (o)
of the Code; provided, however, that the Subsidiaries of the Borrower shall be
deemed to be members of the Borrower's Controlled Group, and the Borrower and
any other entities (whether incorporated or not incorporated) which are under
common Control with the Borrower and which, together with the Borrower, are
treated as a single employer under Section 414(b), (c), (m) or (o) of the Code,
shall be deemed to be members of the Borrower's Controlled Group on and after
the Original Closing Date.
"Debt for Borrowed Money" means, with respect to any Person or Persons
at any date, without duplication, all indebtedness of such Person or Persons
that constitutes (a) obligations of such Person or Persons for borrowed money,
or in respect of letters of credit (or applications for letters of credit) or
other similar instruments, (b) obligations of such Person or Persons evidenced
by bonds, debentures, notes or other similar instruments, excluding any surety,
bid, appeal or performance bonds, (c) obligations of such Person or Persons to
pay the deferred purchase price of property or services, but only if such
deferral is in excess of 120 days, provided that, trade accounts payable and
other accrued liabilities arising in the ordinary course of business shall not
be considered Debt for Borrowed Money, (d) Capitalized Lease Obligations of such
Person or Persons, (e) installment payment non-compete agreements for such
Person or Persons, (f) debt evidenced by Interest Rate Protection Agreements and
(g) Guaranties relating to obligations of another Person (other than the
Borrower or a Restricted Subsidiary of the Borrower with respect to indebtedness
of another Restricted Subsidiary or the Borrower) of the type described in (a)
through (f) above.
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"Default" means an Event of Default and/or any of the events specified
in Section 8.1, regardless of whether there shall have occurred any passage of
time or giving of notice that would be necessary in order to constitute such
event an Event of Default.
"Default Rate" means a simple per annum interest rate equal to the
lesser of (a) the Highest Lawful Rate, or (b) the sum of the Base Rate Basis
plus two percent.
"Determining Lenders" means, on any date of determination, any
combination of the Lenders having at least 51% of the aggregate amount of the
Revolving Credit Advances then outstanding; provided, however, that if there are
no Revolving Credit Advances outstanding hereunder, "Determining Lenders" shall
mean any combination of Lenders whose Specified Percentages aggregate at least
51%.
"Dividend" means, as to any Person, (a) any declaration or payment of
any dividend (other than a dividend paid solely in shares of the common stock of
such Person) on, or the making of any distribution, loan, advance or Investment
to or in any holder of, any shares of Capital Stock of such Person (other than
salaries and bonuses paid in the ordinary course of business), or (b) any
purchase, redemption, or other acquisition or retirement for value of any shares
of Capital Stock of such Person; provided, however, that the acquisition of
shares of Capital Stock of such Person for the purpose of acquiring a Subsidiary
(whether by merger, consolidation, asset acquisition, stock acquisition, or
otherwise) shall not be deemed a Dividend if (a) such shares are used as a
portion or all of the purchase price for the acquisition of a Subsidiary within
a period of ninety days from the date the initial shares of such Capital Stock
were acquired and (b) except with respect to the acquisition of SFX and AMFM,
such Person shall have given the Administrative Agent prior written notice of
its intention to acquire such Capital Stock for the purpose of acquiring a
Subsidiary.
"▇▇▇▇▇" means ▇▇▇▇▇ Media Corporation, a Delaware corporation, formerly
known as EMC Group, Inc., formerly ▇▇▇▇▇ Media Company.
"Equity" means shares of Capital Stock, or options, warrants or any
other right to subscribe for or otherwise acquire Capital Stock, of the Borrower
or any Subsidiary.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any regulation promulgated thereunder.
"ERISA Event" means, with respect to the Borrower and its Subsidiaries,
(a) a Reportable Event (other than a Reportable Event not subject to the
provision for 30-day notice to the PBGC under regulations issued under Section
4043 of ERISA), (b) the withdrawal of any such Person or any member of its
Controlled Group from a Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA, (c) the filing of a notice
of intent to terminate under Section 4041 of ERISA, (d) the institution of
proceedings to terminate a Plan by the PBGC, (e) the failure to make required
contributions which could result in the imposition of a lien under Section 412
of the Code or Section 302 of ERISA, or (f) any other event or condition which
might reasonably be expected to constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any Plan
or the imposition of any liability under Title IV of ERISA other than PBGC
premiums due but not delinquent under Section 4007 of ERISA.
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"Event of Default" means any of the events specified in Section 8.1,
provided that any requirement for notice or lapse of time has been satisfied.
"Existing Letters of Credit" means those certain Letters of Credit more
specifically described on Schedule 1.1 hereto.
"FCC" means the Federal Communications Commission, or any governmental
agency succeeding to the functions thereof.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate quoted to the
Administrative Agent on such day on such transactions as determined by
Administrative Agent.
"GAAP" means generally accepted accounting principles applied on a
consistent basis, set forth in the Opinions of the Accounting Principles Board
of the American Institute of Certified Public Accountants, or their successors
which are applicable in the circumstances as of the date in question. The
requisite that such principles be applied on a consistent basis shall mean that
the accounting principles observed in a current period are comparable in all
material respects to those applied in a preceding period.
"Guaranty" or "Guaranteed", as applied to an obligation, means and
includes (a) a guaranty, direct or indirect, in any manner, of any part or all
of such obligation, and (b) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of nonperformance) of any part
or all of such obligation, including, without limiting the foregoing, any
reimbursement obligations with respect to amounts which may be drawn by
beneficiaries of outstanding letters of credit, but excluding endorsement of
checks, drafts and other instruments in the ordinary course of business.
"Highest Lawful Rate" shall mean at the particular time in question the
maximum rate of interest which, under Applicable Law, any Lender is then
permitted to charge on the Obligations. If the maximum rate of interest which,
under Applicable Law, any Lender is permitted to charge on the Obligations shall
change after the date hereof, the Highest Lawful Rate shall be automatically
increased or decreased, as the case may be, from time to time as of the
effective time of each change in the Highest Lawful Rate without notice to the
Borrower. For purposes of determining the Highest Lawful Rate under Applicable
Law, the indicated rate ceiling shall be the lesser of (a) (i) the "weekly
ceiling" , as that expression is defined in Section 303.003 of the Texas Finance
Code, as amended, or (ii) if available in accordance with the terms thereof and
at Administrative Agent's option after notice to the Borrower and otherwise in
accordance with the terms of Section 303.103 of the Texas Finance Code, as
amended, the "annualized ceiling" and (b)(i) if the amount outstanding under
this
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Agreement is less than $250,000, twenty-four percent (24%) per annum, or (ii) if
the amount under this Agreement is equal to or greater than $250,000,
twenty-eight (28%) per annum.
"Increased Letter of Credit Costs" has the meaning set forth in Section
2.16(d) hereof.
"Increased Letter of Credit Costs Retroactive Effective Date" has the
meaning set forth in Section 2.16(d) hereof.
"Increased Letter of Credit Costs Set Date" has the meaning set forth
in Section 2.16(d) hereof.
"Indemnified Matters" has the meaning ascribed to it in Section 5.10(a)
hereof.
"Indemnitees" has the meaning ascribed to it in Section 5.10(a) hereof.
"Index Debt Rating" means the rating available to the Borrower's
senior, unsecured, non- credit-enhanced long term indebtedness for borrowed
money ("Index Debt") or the implied rating established by ▇▇▇▇▇'▇ or S&P as if
the Borrower had outstanding Index Debt.
"Institutional Debt" means Debt for Borrowed Money which may be raised
by the Borrower in the private placement or public debt markets.
"Intercompany Notes" means those promissory notes payable to the
Borrower or any Restricted Subsidiary from any AMFM/SFX Obligor, in each case
evidencing Investments made by the Borrower or any Restricted Subsidiary in such
AMFM/SFX Obligor, each in the form of Exhibit F hereto.
"Interest Expense" means, for any period, determined in accordance
with GAAP on a consolidated basis for the Borrower and the Restricted
Subsidiaries, the gross interest expense (after giving effect to interest rate
swaps, caps, collars and ▇▇▇▇▇▇) for such period on Total Debt, minus the sum of
(a) interest income for such period, plus (b) to the extent not included in the
determination of such gross interest expense, upfront costs or fees expended
during such period in connection with the execution and delivery of
documentation relating to the Loan Papers, provided that, if any upfront costs
and fees have been previously included in a prior period, such costs and fees
shall be deducted in determining Interest Expense for such period. If during any
period for which Interest Expense is being determined the Borrower or any of its
Subsidiaries shall have made an Acquisition or asset disposition, then, for all
purposes of this Agreement, Interest Expense shall be adjusted for the relevant
period on a pro forma basis as if the relevant Acquisition or asset disposition
had been made or consummated on the first day of such period and assuming (i) in
the case of an Acquisition, the principal amount of any Debt for Borrowed Money
incurred in connection with such Acquisition had been outstanding for the entire
duration of such period at the rate of interest applicable to such Debt for
Borrowed Money at the time of incurrence of such Debt for Borrowed Money or (ii)
in the case of any asset disposition, any Debt for Borrowed Money which on a pro
forma basis has been repaid or which is no longer an obligation of the Borrower
or any of its Subsidiaries as a result of such asset disposition had been repaid
or was not an obligation of the Borrower or any of its Subsidiaries as of the
first day of such period.
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"Interest Period" means for (a) any LIBOR Advance, the period beginning
on the day the Advance is made and ending one, two, three, six or, subject to
each Lender's good faith determination of availability, twelve months thereafter
(as the Borrower shall select), and (b) any Bid Rate Advance, the period
beginning on the day the Advance was made and ending the date the Borrower and
the Lender making the Bid Rate Advance agree pursuant to Section 2.1(b).
"Interest Rate Protection Agreement" means an interest rate swap, cap,
collar or similar interest rate protection agreement between the Borrower or any
Restricted Subsidiary of the Borrower and any Lender or any Bank Affiliate.
"Investment" means any direct or indirect purchase or other acquisition
of, or beneficial interest in, Capital Stock or other securities of any other
Person, or any direct or indirect loan, advance (other than advances to
employees for moving and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business) or capital contribution to, or
investment in any other Person, including without limitation the incurrence or
sufferance of Debt for Borrowed Money or accounts receivable of any other Person
that are not current assets or do not arise in the ordinary course of business,
provided that, investments constituting Acquisitions shall not be included in
this definition of "Investment", and such definition shall exclude endorsement
of checks, drafts and other instruments in the ordinary course of business.
"Issuing Bank" means Bank of America, N.A., in its capacity as issuer
of the Letters of Credit.
"Jacor Bond Debt and Option Notes" means those 10 and 1/8% Senior
Subordinated Notes due 2006, 9 and 3/4% Senior Subordinated notes due 2006, 8
and 3/4% Senior Subordinated notes due 2007 and 8% Senior Subordinated notes due
2010, Liquid Yield Option Notes due 2011 and those Liquid Yield Option Notes due
2018, in each case issued by Jacor Communications Company, Jacor Communications,
Inc. or a predecessor.
"L/C Cash Collateral Account" has the meaning specified in Section
2.16(g) hereof.
"L/C Related Documents" has the meaning specified in Section 2.16(e)
hereof.
"Lender" means each financial institution or fund shown on the
signature pages hereof so long as such financial institution or fund maintains a
Commitment or is owed any part of the Obligations (including the Administrative
Agent in its individual capacity), and each Assignee that hereafter becomes
party hereto pursuant to Section 11.6 hereof.
"Letter of Credit" has the meaning specified in Section 2.16(a) hereof.
"Letter of Credit Agreement" has the meaning specified in Section
2.16(b) hereof.
"Letter of Credit Facility" means the amount of the Letters of Credit
the Issuing Bank may issue pursuant to Section 2.16(a) hereof.
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"Leverage Ratio" means, for any date of determination, the ratio of
Total Debt as of the date of determination to Operating Cash Flow for the four
most recently ended fiscal quarters preceding such date of determination.
"LIBOR Advance" means a Revolving Credit Advance which the Borrower
requests to be made as a LIBOR Advance or which is reborrowed as a LIBOR
Advance, in accordance with the provisions of Section 2.2 hereof.
"LIBOR Basis" means a simple per annum interest rate equal to the
lesser of (a) the Highest Lawful Rate, or (b) the sum of the LIBOR Rate plus the
Applicable Margin. The LIBOR Basis shall, with respect to LIBOR Advances with
Interest Periods in excess of six months, be subject to premiums assessed by
each Lender, which are payable directly to each Lender. Once determined, the
LIBOR Basis shall remain unchanged during the applicable Interest Period.
"LIBOR Lending Office" means, with respect to a Lender, the office
designated as its LIBOR Lending Office on Schedule 1.2 attached hereto, and such
other office of the Lender or any of its affiliates hereafter designated by
notice to the Borrower and the Administrative Agent.
"LIBOR Rate" shall mean, for any LIBOR Advance for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
one-one hundredth (1/100th) of one percent (1%)) appearing on Telerate Page 3750
(or any successor page) as the London interbank offered rate for deposits in
United States dollars at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period. If for any reason such rate
is not available, the term "LIBOR Rate" shall mean, for any LIBOR Advance for
any Interest Period therefor, the rate per annum (rounded upwards, if necessary,
to the nearest one-one hundredth (1/100th) of one percent (1%)) appearing on
Reuters Screen LIBO page as the London interbank offered rate for deposits in
United States dollars at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period for a term comparable to
such Interest Period; provided, however, if more than one rate is specified on
Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean of
all such rates.
"Lien" means, with respect to any property, any mortgage, lien, pledge,
collateral assignment, hypothecation, charge, security interest, title retention
agreement, levy, execution, seizure, attachment, garnishment or other
encumbrance of any kind in respect of such property, whether or not ▇▇▇▇▇▇,
vested or perfected.
"Like-Kind Exchange" means the disposition by the Borrower or any
Restricted Subsidiary of certain of their assets, and their acquisition of like
assets, in each case in order to effectuate a like- kind exchange under the Code
and avoid the payment by such Person of federal taxes on the proceeds of the
asset sales.
"Limited Subsidiary Guaranty" means each Limited Subsidiary Guaranty,
in the form of Exhibit C hereto, delivered to the Administrative Agent and
guaranteeing a portion of the Obligations in a maximum aggregate amount for all
such Limited Subsidiary Guaranties not to exceed the Limited Subsidiary Guaranty
Amount, executed from time to time by an AMFM/SFX Obligor, in accordance with
the terms of Section 5.14 hereof.
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"Limited Subsidiary Guaranty Amount" means, on any date of
determination after the Acquisition of AMFM or SFX, respectively, and in each
case until their respective Collateral Release Date, an amount equal to the
lesser of (a) the excess, if any, of (i) the aggregate principal amount (which
such amount shall include accretion) of all outstanding and unpaid public and/or
high yield indebtedness owed by all AMFM Entities or all SFX Entities, as
applicable, over (ii) the principal face amount of all Pledged Intercompany
Notes of the AMFM/SFX Obligors, as applicable and (b) the excess, if any, of (i)
the aggregate amount of all Investments made in all AMFM/SFX Obligors by the
Borrower and its Restricted Subsidiaries(other than AMFM Entities and SFX
Entities) for the period from the Closing Date until such date of determination,
over (ii) the aggregate principal amount owing under all Pledged Intercompany
Notes as of such date, provided that the Limited Subsidiary Guaranty Amount
shall never be less than $1,000,000,000 and shall never be more than the
greatest amount that would still permit the issuer under each of the AMFM Entity
and SFX Entity indentures for public indebtedness to incur $1.00 of additional
indebtedness (other than indebtedness specifically permitted thereunder) after
giving effect to the aggregate principal amount then outstanding of all
Intercompany Notes executed by such AMFM Entity or SFX Entity, as applicable,
and all other indebtedness then outstanding which was permitted to be incurred
under such indentures prior to the date of the SFX Acquisition or AMFM
Acquisition and this Agreement, as applicable.
"Loan Papers" means this Agreement, the Revolving Credit Notes, the Bid
Rate Notes, each Limited Subsidiary Guaranty, each pledge agreement pledging a
Pledged Intercompany Note, fee letters, each Interest Rate Protection Agreement,
and any other document or agreement executed or delivered from time to time by
the Borrower, any Subsidiary or any other Person in connection herewith or as
security for the Obligations.
"Local Marketing Agreement" means any time brokerage agreements, local
market affiliation agreements or related or similar agreements entered into
between the Borrower or any Subsidiary and any other Person, as any of the above
may be amended, substituted, replaced or modified.
"Material Adverse Effect" means any act or circumstance or event that
(a) causes a Default, or (b) otherwise could reasonably be expected to be
material and adverse to the business, consolidated assets, liabilities,
financial condition or results of operations of the Borrower and its Restricted
Subsidiaries, together taken as a whole.
"Maturity Date" means June 30, 2005.
"Maximum Amount" means the maximum amount of interest which, under
Applicable Law, the Lenders are permitted to charge on the Obligations.
"Maximum Pledged Intercompany Note Amount" means an amount (on any date
of determination, but adjusted quarterly as set forth below) equal to the lesser
of (a) the aggregate principal amount (which such amount shall include
accretion) of all outstanding and unpaid public and/or high yield indebtedness
owed by all AMFM Entities and all SFX Entities, and (b) 14.5% of the Borrower's
Consolidated Stockholders' Equity as reflected in the most recent audited
balance sheet included in the Annual Shareholders' report of the Borrower,
determined and changed as
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follows: Subsection (a) in this definition of Maximum Pledged Intercompany Note
Amount will be determined and adjusted quarterly based on financial information
delivered to the Administrative Agent and Lenders in accordance with the terms
of Section 6.1 hereof, and subsection (b) in this definition of Maximum Pledged
Intercompany Note Amount will be determined and adjusted annually based on
financial information delivered to the Administrative Agent and Lenders in
accordance with the terms of Section 6.2 hereof.
"Moody's" means ▇▇▇▇▇'▇ Investors Services, Inc.
"More Group" means the More Group Plc, a company incorporated in
England (number 309019) of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇.
"More Group Credit Facility" means that certain unsecured
multi-currency credit facility among Barclays Bank Plc, Bank of ▇▇▇▇▇▇▇▇, ▇▇▇
Group Plc, Svenska Handelsbank AB, Skandinaviska Engkilda ▇▇▇▇▇▇ ▇▇, The Chase
Manhattan Bank (as Lenders, as such Lenders may be replaced from time to time)
and More Group, as parent, borrower and guarantor, as such may be amended,
modified, supplemented, refinanced or replaced from time to time, provided that
after the Closing Date (a) no such action shall result in any term being
materially more restrictive than the terms of the More Group Credit Facility
documentation existing on the date hereof taken as a whole, and (b) no such
action shall result in any change that is both material and adverse to the
interests of the Lenders.
"Multiemployer Plan" means, as to any Person, at any time, a
"multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA and to
which such Person or any member of its Controlled Group is making, or is
obligated to make contributions or has made, or been obligated to make,
contributions.
"Necessary Authorization" means any license, permit, consent, approval
or authorization from, or any filing or registration with, any governmental or
other regulatory authority (including without limitation the FCC) necessary or
appropriate to enable the Borrower or any Subsidiary to maintain and operate its
business and properties.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer or
disposition of any asset by any Person or the issuance of Institutional Debt or
Equity by any Person (other than the net cash proceeds from the consolidation of
any Restricted Subsidiary with another Restricted Subsidiary), the aggregate
amount of cash Received by such Person in connection with such transaction minus
reasonable fees, costs and expenses and related taxes.
"Notice of Issuance" has the meaning ascribed to it in Section 2.16(b)
hereof.
"NRNZ" means NRNZ Holdings, Limited, a New Zealand corporation of which
33 1/3% of the outstanding Capital Stock is owned by the Borrower.
"Obligations" means (a) all obligations of any nature (whether matured
or unmatured, fixed or contingent, including the Reimbursement Obligations) of
the Borrower or any Subsidiary to the Lenders or Bank Affiliates under the Loan
Papers, as they may be amended from time to time, and
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(b) all obligations of the Borrower or any Subsidiary for losses, damages,
expenses or any other liabilities of any kind that any Lender or Bank Affiliate
may suffer by reason of a breach by the Borrower or any Subsidiary of any
obligation, covenant or undertaking with respect to any Loan Paper.
"Operating Cash Flow" means, for any period, determined in accordance
with GAAP on a consolidated basis for the Borrower and its Restricted
Subsidiaries, the sum of (a) pre-tax net income (excluding therefrom (i) any
items of extraordinary gain, including net gains on the sale of assets other
than asset sales in the ordinary course of business, and (ii) any items of
extraordinary loss, including net losses on the sale of assets other than asset
sales in the ordinary course of business), plus (b) interest expense,
depreciation and amortization (including amortization of film contracts),
deferred and other non-cash charges, and minus (c) cash payments made or
scheduled to be made with respect to film contracts. Operating Cash Flow shall
be adjusted to exclude (i) any extraordinary non-cash items deducted from or
included in the calculation of pre-tax net income and (ii) without duplication,
any accrued but not paid income or loss from Investments. For purpose of
calculation of Operating Cash Flow with respect to assets not owned at all times
during the four fiscal quarters preceding the date of determination of Operating
Cash Flow there shall be (i) included in Operating Cash Flow on a pro forma
basis, the Operating Cash Flow of any assets acquired during any of such four
fiscal quarters for the twelve month period preceding the date of determination,
and (ii) excluded from Operating Cash Flow on a pro forma basis, the Operating
Cash Flow of any assets disposed of during any of such four fiscal quarters for
the twelve month period preceding the date of determination.
"Operating Lease" means any operating lease, as defined in the
Financial Accounting Standard Board Statement of Financial Accounting Standards
No. 13, dated November, 1976 or otherwise in accordance with GAAP, with an
initial or remaining noncancellable lease term in excess of one year.
"Original Closing Date" means April 10, 1997.
"Original Credit Agreement" shall have the meaning ascribed thereto in
the BACKGROUND section at the beginning of this Agreement.
"Participation" has the meaning ascribed to it in Section 11.6(c)
hereof.
"Payment Date" means the last day of the Interest Period for any LIBOR
Advance or Bid Rate Advance.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Liens" means, as applied to any Person:
(a) any Lien in favor of the Administrative Agent on behalf of the
Lenders to secure the Obligations hereunder;
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(b) (i) Liens for taxes not yet delinquent, (ii) Liens created by lease
agreements to secure the payments of rental amounts and other sums not yet due
thereunder, (iii) Liens on leasehold interests created by the lessor in favor of
any mortgagee of the leased premises, and (iv) Liens for taxes, assessments,
governmental charges, levies or claims that are being diligently contested in
good faith by appropriate proceedings and for which adequate reserves shall have
been set aside on such Person's books, but only so long as no foreclosure,
restraint, sale or similar proceedings have been commenced with respect thereto;
(c) Liens of carriers, warehousemen, mechanics, laborers and
materialmen and other similar Liens incurred in the ordinary course of business
for sums not yet due or being contested in good faith, if such reserve or
appropriate provision, if any, as shall be required by GAAP shall have been made
therefor;
(d) Liens incurred in the ordinary course of business in connection
with worker's compensation, unemployment insurance or similar legislation;
(e) Easements, right-of-way and zoning restrictions and other similar
encumbrances on the use of real property which do not interfere with the
ordinary conduct of the business of such Person;
(f) Liens created to secure the purchase price of property acquired by
(i) any Restricted Subsidiary, or created to secure Debt for Borrowed Money of
the Restricted Subsidiaries permitted by Section 7.1(b) hereof in an amount not
to exceed $50,000,000 in the aggregate outstanding at any time for all
Restricted Subsidiaries and (ii) the Borrower, or created to secure Debt for
Borrowed Money of the Borrower permitted by the first sentence of Section 7.1
hereof in an amount not to exceed $50,000,000 in the aggregate outstanding at
any time, which, in the case of both (i) and (ii) foregoing, is incurred solely
for the purpose of financing the acquisition of such assets and incurred at the
time of acquisition, so long as (A) each such Lien shall at all times be
confined solely to the asset or assets so acquired (and proceeds thereof and
improvements and accessions thereto), and refinancings thereof, and (B) the
amount of Debt for Borrowed Money related thereto is not increased (except for
prepayment fees and expenses of such refinancing);
(g) Liens in respect of judgments or awards for which appeals or
proceedings for review are being prosecuted and in respect of which a stay of
execution upon any such appeal or proceeding for review shall have been secured,
provided that (i) such Person shall have established adequate reserves for such
judgments or awards, (ii) such judgments or awards shall be fully insured and
the insurer shall not have denied coverage, or (iii) such judgments or awards
shall have been bonded to the satisfaction of the Determining Lenders;
(h) Any Liens existing on the Closing Date which are described on
Schedule 1.3 hereto or permitted to exist under the terms of Section 7.2 hereof,
and Liens resulting from the refinancing of the related Debt for Borrowed Money,
provided that the Debt for Borrowed Money secured thereby shall not be increased
and the Liens shall not cover additional assets (except improvements and
accessions thereto) of the Borrower or any of its Restricted Subsidiaries; and
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(i) Liens securing acquired Debt for Borrowed Money permitted to exist
under Section 7.1(e) hereof, but only to the extent that such Liens and Debt for
Borrowed Money existed prior to the date of the related Acquisition (such Liens
shall not cover additional assets, except improvements and accessions thereto),
and provided that such Lien and such Debt for Borrowed Money were not incurred
in anticipation of the consummation of such Acquisition.
"Person" means an individual, corporation, partnership, trust or
unincorporated organization, limited liability company, or a government or any
agency or political subdivision thereof.
"Plan" means an employee pension benefit plan as defined in Section
3(2) of ERISA (including a Multiemployer Plan) that is covered by Title IV of
ERISA or subject to the minimum funding standards under Section 412 of the Code
and is maintained for the employees of the Borrower, its Subsidiaries or any
member of their Controlled Group.
"Pledged Intercompany Notes" means Intercompany Notes pledged to the
Administrative Agent on behalf of the Lenders to secure the Obligations in
accordance with the terms of Section 5.14 hereof, pursuant to documentation
substantially in the form of Exhibit G hereto.
"Prime Rate" means, at any time, the prime interest rate announced or
published by the Administrative Agent from time to time as its reference rate
for the determination of interest rates for loans of varying maturities in
United States dollars to United States residents of varying degrees of
creditworthiness and being quoted at such time by the Administrative Agent as
its "prime rate;" it being understood that such rate may not be the lowest rate
of interest charged by the Administrative Agent.
"Quarterly Date" means March 31, June 30, September 30 and December 31,
beginning June 30, 2000.
"Received" means on any date of determination for any Person with
respect to any sale or disposition, the actual cash amount in the possession of,
under the control of, and at the disposal of, such Person from such sale or
disposition, provided that, so long as there exists no Default, proceeds from
any sale or disposition held in escrow by any "qualified intermediary" as
defined in the Code for a period not in excess of 180 days, for the purpose of
consummating a Like-Kind Exchange, which such proceeds are subsequently
reinvested in like assets during the 180 day period in accordance with the Code,
shall not be deemed to be Received by such Person unless (or until such time as)
such proceeds are not held or reinvested in accordance with the Code in order to
effectuate a Like-Kind Exchange.
"Refinancing Advance" means any Advance which is used to pay the
principal amount (or any portion thereof) of a LIBOR Advance, Base Rate Advance
or Bid Rate Advance at the end of its Interest Period and which, after giving
effect to such application, does not result in an increase in the aggregate
amount of outstanding LIBOR Advances, Base Rate Advances or Bid Rate Advances at
the time of the Refinancing Advance.
"Regulatory Modification" has the meaning set forth in Section 9.5
hereof.
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"Regulatory Modification Retroactive Effective Date" has the meaning
set forth in Section 9.5 hereof.
"Regulatory Modification Set Date" has the meaning set forth in Section
9.5 hereof.
"Reimbursement Obligations" means, in respect of any Letters of Credit
as at any date of determination, the maximum aggregate amount which is then
available to be drawn under such Letter of Credit (whether the conditions to
drawing thereunder have been met) plus any unreimbursed amounts under Letters of
Credit.
"Release Date" means the date on which the notes have been paid, all
other Obligations due and owing have been paid and performed in full, and the
Commitment has been terminated.
"Reportable Event" has the meaning set forth in Title IV of ERISA.
"Restricted Subsidiary" means any Subsidiary of Borrower which is not
an Unrestricted Subsidiary, including, without limitation, ARN and NRNZ,
provided that, upon the acquisition by the Borrower of the AMFM Entities and the
SFX Entities, such Persons shall not be "Restricted Subsidiaries" under the
terms of this document until, in each case, one Business Day has elapsed after
their respective acquisitions by the Borrower, at which time each of the AMFM
Entities and each of the SFX Entities, respectively, shall each be included as a
"Restricted Subsidiary" under this Agreement and the Loan Papers.
"Revolving Credit Advance" means an Advance made pursuant to Section
2.1(a) hereof.
"Revolving Credit Note" means any promissory note of the Borrower
evidencing Revolving Credit Advances hereunder, substantially in the form of
Exhibit A hereto, together with any extension, renewal or amendment thereof or
substitution therefor.
"S&P" means Standard & Poor's Ratings Group, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., a New York corporation.
"SFX" means SFX Entertainment, Inc.
"SFX Acquisition" means the acquisition by the Borrower of SFX and its
direct and indirect subsidiaries in accordance with the terms of the SFX
Acquisition Documentation.
"SFX Acquisition Documentation" means that certain Agreement and Plan
of Merger, dated as of February 28, 2000, among the Borrower, SFX and CCU II
Merger Sub, Inc., and all related documentation in effect on May 1, 2000.
"SFX Entities" means SFX and all of its direct and indirect
subsidiaries that are Restricted Subsidiaries at the time of determination.
"SFX Reduced Public Debt Permitted Amount" means an amount equal to
$25,000,000.
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"Special Counsel" means the law firm of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
P.C., or such other legal counsel as the Administrative Agent may select.
"Specified Percentage" means, as to any Lender, the percentage
indicated beside its name on Schedule 1.4 hereto, or if applicable, specified in
its most recent Assignment Agreement or in any amendment hereof.
"Subsidiary" means (a) any corporation of which 50% or more of the
outstanding stock (other than directors' qualifying shares) having ordinary
voting power to elect a majority of its board of directors, regardless of the
existence at the time of a right of the holders of any class of securities of
such corporation to exercise such voting power by reason of the happening of any
contingency, is at the time owned by the Borrower, directly or through one or
more intermediaries, and (b) any other entity which is Controlled or then
capable of being Controlled by the Borrower, directly or through one or more
intermediaries, whether a Restricted Subsidiary or Unrestricted Subsidiary.
"Termination Event" means, with respect to the Borrower, any of its
Subsidiaries or any Plan, (a) a Reportable Event, (b) the withdrawal from a Plan
during a Plan year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA, (c) the filing of a notice of intent to terminate a
Plan or the treatment of a Plan amendment as a termination under Section 4041 of
ERISA, (d) the institution of proceedings by the Pension Benefit Guaranty
Corporation to terminate a Plan or appoint a trustee to administer a Plan, (e)
the failure to comply with the minimum funding requirements of ERISA with
respect to any Plan, or (f) any other event or condition which might constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan.
"$3B Credit Facility" means that certain credit agreement to be entered
into among the Borrower, Bank of America, N.A., as administrative agent
thereunder, The Chase Manhattan Bank, as syndication agent thereunder and the
other lenders named therein, as such agreement may be amended, restated,
substituted, increased or replaced from time to time.
"Total Debt" means, as of any date of determination, determined for the
Borrower and its Restricted Subsidiaries on a consolidated basis, the sum
(without duplication) of (a) all principal and interest owing under the Loan
Papers and (b) all other Debt for Borrowed Money.
"Universal $325 Million 9.75% Bonds" means those certain $325 million
in 9.75% bonds of Universal Outdoor Holdings, Inc. maturing October 15, 2006.
"Unrestricted Subsidiary" means those Subsidiaries designated as
Unrestricted Subsidiaries on Schedule 4.1(a) hereto, any entity acquired as an
Acquisition after the Closing Date unless such Investment is designated as a
Restricted Subsidiary by Borrower prior to the completion of such Acquisition,
or by complying with the terms and provisions of Section 5.12(a) hereof. An
Unrestricted Subsidiary may become a Restricted Subsidiary and subject to the
provisions hereof by Borrower's designation thereof in accordance with the terms
and provisions of Section 5.12(b), as applicable.
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"Weighted Average Life to Maturity" means, as of the date of
determination, with respect to any debt instrument, the quotient obtained by
dividing (i) the sum of the products of the number of years from the date of
determination to the dates of each successive scheduled principal payment of
such debt instrument by the amount of such principal payment by (ii) the sum of
all such principal payments.
"Year 2000 Problem" means the risk that computer applications and
devices containing imbedded computer chips used by the Borrower or any of its
Subsidiaries (or their respective customers and vendors) may be unable to
recognize and perform properly date-sensitive functions involving certain dates
prior to and any date after December 31, 1999.
Section 1.2 Amendments and Renewals. Each definition of an agreement in
this Article 1 shall include such agreement as amended to date, and as amended
or renewed from time to time in accordance with its terms, but only with the
prior written consent of the Determining Lenders.
Section 1.3 Construction. The terms defined in this Article 1 (except
as otherwise expressly provided in this Agreement) for all purposes shall have
the meanings set forth in Section 1.1 hereof, and the singular shall include the
plural, and vice versa, unless otherwise specifically required by the context.
All accounting terms used in this Agreement which are not otherwise defined
herein shall be construed in accordance with GAAP on a consolidated basis for
the Borrower and its Subsidiaries, unless otherwise expressly stated herein. To
the extent that a material change in GAAP occurs after the Closing Date, the
Borrower and Lenders agree to negotiate in good faith to effect conforming
changes to the financial covenants set forth in Article 7 hereof.
ARTICLE 2
Advances
Section 2.1 The Advances.
(a) Revolving Credit Advances. Each Lender severally agrees, upon the
terms and subject to the conditions of this Agreement, to make Revolving Credit
Advances to the Borrower from time to time up to and including the Maturity Date
in an aggregate amount not to exceed its Specified Percentage of the Commitment
less its Specified Percentage of the Reimbursement Obligations then outstanding
(assuming compliance with all conditions to drawing) for the purposes set forth
in Section 5.9 hereof. Subject to Section 2.8 hereof, Advances may be repaid and
then reborrowed. Any Revolving Credit Advance shall, at the option of the
Borrower as provided in Section 2.2 hereof (and, in the case of LIBOR Advances,
subject to availability and to the provisions of Article 9 hereof), be made as a
Base Rate Advance or a LIBOR Advance; provided that there shall not be
outstanding to any Lender, at any one time, more than ten LIBOR Advances.
Notwithstanding any provision in any Loan Paper to the contrary, in no event
shall the principal amount of all outstanding Revolving Credit Advances, Bid
Rate Advances and Reimbursement Obligations plus the principal amount of Debt
for Borrowed Money guaranteed by the Borrower pursuant to the Bank of America
Guaranty exceed the Commitment. On the Maturity Date unless sooner paid as
provided herein, the outstanding Revolving Credit Advances shall be repaid in
full.
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(b) Bid Rate Advances. Each Lender may, in its sole discretion and on
the terms and conditions set forth in this Agreement, make Bid Rate Advances to
the Borrower from time to time in an aggregate amount not in excess of the
difference between (i) the Commitment minus (ii) the sum of (A) the aggregate
outstanding principal amount for all Revolving Credit Advances, plus (B) the
aggregate outstanding principal amount of all Bid Rate Advances, plus (C) the
amount of all Reimbursement Obligations, plus (D) the principal amount of Debt
for Borrowed Money guaranteed by the Borrower pursuant to the Bank of America
Guaranty. Notwithstanding anything in the preceding sentence to the contrary,
Bid Rate Advances may not exceed $750,000,000 in the aggregate at any time. Each
Bid Rate Advance shall be for a period for not less than 7 days and not more
than 90 days. The Borrower may not request any Bid Rate Advances unless the
Index Debt Rating is the following or better: BBB- from S&P or Baa3 from
▇▇▇▇▇'▇. Bid Rate Advances may not be prepaid without the prior written consent
of the Lender making such Bid Rate Advances.
Section 2.2 Manner of Borrowing and Disbursement.
(a) In the case of Base Rate Advances, the Borrower, through an
Authorized Signatory, shall give the Administrative Agent at least one Business
Days' irrevocable written notice, or irrevocable telephonic notice followed
immediately by written notice (provided, however, that the Borrower's failure to
confirm any telephonic notice in writing shall not invalidate any notice so
given), of its intention to borrow or reborrow a Base Rate Advance hereunder.
Notice shall be given to the Administrative Agent prior to 11:00 a.m., Dallas,
Texas time, in order for such Business Day to count toward the minimum number of
Business Days required. Such notice of borrowing shall specify the requested
funding date, which shall be a Business Day, and the amount of the proposed
aggregate Base Rate Advances to be made by Lenders.
(b) In the case of LIBOR Advances, the Borrower, through an Authorized
Signatory, shall give the Administrative Agent at least three Business Days'
irrevocable written notice, or irrevocable telephonic notice followed
immediately by written notice (provided, however, that the Borrower's failure to
confirm any telephonic notice in writing shall not invalidate any notice so
given), of its intention to borrow or reborrow a LIBOR Advance hereunder. Notice
shall be given to the Administrative Agent prior to 11:00 a.m., Dallas, Texas
time, in order for such Business Day to count toward the minimum number of
Business Days required. LIBOR Advances shall in all cases be subject to
availability and to Article 9 hereof. For LIBOR Advances, the notice of
borrowing shall specify the requested funding date, which shall be a Business
Day, the amount of the proposed aggregate LIBOR Advances to be made by Lenders
and the Interest Period selected by the Borrower, provided that no such Interest
Period shall extend past the Maturity Date or prohibit or impair the Borrower's
ability to comply with Section 2.8 hereof.
(c) Subject to Sections 2.1 and 2.9 hereof, at least three Business
Days prior to each Payment Date for a LIBOR Advance, the Borrower, through an
Authorized Signatory, shall give the Administrative Agent irrevocable written
notice, or irrevocable telephonic notice followed immediately by written notice
(provided, however, that the Borrower's failure to confirm any telephonic notice
in writing shall not invalidate any notice so given), specifying whether all or
a portion of such LIBOR Advance outstanding on the Payment Date (i) is to be
repaid and then reborrowed in whole or in part as a LIBOR Advance, (ii) is to be
repaid and then reborrowed in
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whole or in part as a Base Rate Advance, or (iii) is to be repaid and not
reborrowed; provided, however, notwithstanding anything in this Agreement to the
contrary, if on any Payment Date a Default shall exist, such LIBOR Advance may
only be reborrowed as a Base Rate Advance. Upon such Payment Date, such LIBOR
Advance shall, subject to the provisions hereof, be so repaid and, as
applicable, reborrowed.
(d) Subject to Sections 2.1 and 2.9 hereof, upon at least one Business
Day irrevocable prior written notice (or three Business Days if the Borrower
wishes to reborrow a LIBOR Advance), through an Authorized Signatory, or
irrevocable telephonic notice followed immediately by written notice (provided,
however, that the Borrower's failure to confirm any telephonic notice in writing
shall not invalidate any notice so given), the Borrower may repay a Base Rate
Advance, and (i) reborrow all or a portion of the principal amount thereof as a
Base Rate Advance, (ii) reborrow all or a portion of the principal amount
thereof as one or more LIBOR Advances, or (iii) not reborrow all or any portion
of such Base Rate Advance.
(e) The aggregate amount of Base Rate Advances to be made by the
Lenders on any day shall be in a principal amount which is at least $1,000,000
and which is an integral multiple of $100,000; provided, however, that such
amount may equal the unused amount of the Commitment. The aggregate amount of
LIBOR Advances having the same Interest Period and to be made by the Lenders on
any day shall be in a principal amount which is at least $5,000,000 and which is
an integral multiple of $100,000.
(f) The Administrative Agent shall promptly notify the Lenders of each
notice (other than with respect to a Bid Rate Advance) received from the
Borrower pursuant to this Section. Failure of the Borrower to give any notice in
accordance with Section 2.2(c) hereof shall result in a repayment of any such
existing LIBOR Advance on the applicable Payment Date by a Refinancing Advance
which is a Base Rate Advance. Each Lender shall, not later than noon, Dallas,
Texas time, on the date of any Revolving Credit Advance that is not a
Refinancing Advance, deliver to the Administrative Agent, at its address set
forth herein, such Lender's Specified Percentage of such Revolving Credit
Advance in immediately available funds in accordance with the Administrative
Agent's instructions. Prior to 2:00 p.m., Dallas, Texas time, on the date of any
Revolving Credit Advance hereunder, the Administrative Agent shall, subject to
satisfaction of the conditions set forth in Article 3, disburse the amounts made
available to the Administrative Agent by the Lenders by (i) transferring such
amounts by wire transfer pursuant to the Borrower's instructions, or (ii) in the
absence of such instructions, crediting such amounts to the account of the
Borrower maintained with the Administrative Agent. All Revolving Credit Advances
shall be made by each Lender according to its Specified Percentage. No Lender
shall be relieved of its obligation to fund its Specified Percentage of any
Revolving Credit Advance notwithstanding the fact that at any time the aggregate
outstanding principal amount of all Bid Rate Advances made by such Lender exceed
its Specified Percentage of the Commitment.
(g) Bid Rate Advances
(i) In the case of Bid Rate Advances, the Borrower, through an
Authorized Signatory, shall give the Administrative Agent (which shall
promptly notify the Lenders) prior to 12:00 noon, Dallas, Texas time,
at least one Business Day prior to the proposed
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borrowing, irrevocable written notice of its intention to borrow a Bid
Rate Advance. Each Bid Rate Advance request shall be subject to a
non-refundable $500.00 processing fee payable to the Administrative
Agent by the Borrower regardless of whether such Bid Rate Advance is
funded. Such notice of borrowing shall specify (i) the requested
funding date, which shall be a Business Day, (ii) the aggregate amount
of the proposed Bid Rate Advances, (iii) the Interest Period selected
by the Borrower, provided that no Interest Period shall extend past the
Maturity Date and (iv) any other terms applicable thereto.
(ii) Each Lender may, if, in its sole discretion, it elects to do
so, irrevocably offer to make one or more Bid Rate Advances to the
Borrower as part of such proposed borrowing at a rate or rates of
interest specified by such Lender in its sole discretion, by making a
written quote to the Administrative Agent (which shall give prompt
notice thereof to the Borrower) before 9:30 a.m., Dallas, Texas time,
on the date of such proposed borrowing, setting forth the minimum
amount and maximum amount of each Bid Rate Advance which such Lender
would be willing to make as part of the proposed borrowing (which
amounts may exceed such Lender's Specified Percentage of the
Commitment) and the rate or rates of interest therefor and the Interest
Period therefor. If Bank of America, N.A. elects to offer to make one
or more Bid Rate Advances, it shall deliver its written quote with
respect to the proposed borrowing to the Borrower prior to the
Administrative Agent's receipt of any other Lender's written quote for
such proposed borrowing. The Administrative Agent shall notify the
Borrower of each written quote provided by each Lender with respect to
the proposed borrowing before 10:00 a.m., Dallas, Texas, on the date of
such proposed borrowing. If any Lender shall elect not to make such an
offer, such Lender shall so notify the Administrative Agent before 9:30
a.m., Dallas, Texas time, on the date of such proposed borrowing, and
such Lender shall not make any Bid Rate Advance as part of such
borrowing. If any Lender shall fail to respond to the Administrative
Agent by such time, such Lender shall be deemed to have elected not to
make an offer.
(iii) The Borrower shall, in turn, before 10:30 a.m., Dallas, Texas
time, on the date of such proposed borrowing either
(A) cancel such proposed borrowing by giving the
Administrative Agent notice to that effect, or
(B) accept one or more of the offers made by any Lender or
Lenders pursuant to clause (ii) above, in its sole discretion, by
giving notice to the Administrative Agent of the amount of each Bid
Rate Advance (which amount shall be equal to or greater than the
minimum amount, and equal to or less than the maximum amount, for
which notification was given to the Borrower by the Administrative
Agent on behalf of such Lender for such Bid Rate Advance pursuant
to clause (ii) above) to be made by each Lender as part of such
borrowing, and reject any remaining offers made by the Lenders
pursuant to clause (ii) above by giving the Administrative Agent
notice to that effect.
(iv) If the Borrower notifies the Administrative Agent that such
proposed borrowing is canceled pursuant to clause (iii)(A) above, the
Administrative Agent shall give prompt notice thereof to the Lenders
and such borrowing shall not be made.
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(v) If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to clause (iii)(B) above, the Administrative
Agent shall in turn promptly notify each Lender of the date, rate of
interest, and amount of each Bid Rate Advance and the Lender making
such Advance.
Section 2.3 Interest.
(a) On Base Rate Advances.
(i) The Borrower shall pay interest on the outstanding unpaid
principal amount of each Base Rate Advance, from the date such Advance
is made until it is due (whether at maturity, by reason of
acceleration, by scheduled reduction, or otherwise) or repaid, at a
simple interest rate per annum equal to the Base Rate Basis as in
effect from time to time, provided that interest on Base Rate Advances
shall not exceed the Maximum Amount. If at any time the Base Rate Basis
would exceed the Highest Lawful Rate, interest payable on Base Rate
Advances shall be limited to the Highest Lawful Rate, but the Base Rate
Basis shall not thereafter be reduced below the Highest Lawful Rate
until the total amount of interest accrued on such Advances equals the
amount of interest that would have accrued if the Base Rate Basis had
been in effect at all times.
(ii) Interest on each Base Rate Advance shall be computed on the
basis of a year of 365 or 366 days, as applicable, for the number of
days actually elapsed, and shall be payable in arrears on each
Quarterly Date and on the Maturity Date.
(b) On LIBOR Advances.
(i) The Borrower shall pay interest on the unpaid principal amount
of each LIBOR Advance, from the date such Advance is made until it is
due (whether at maturity, by reason of acceleration, by scheduled
reduction, or otherwise) or repaid, at a rate per annum equal to the
LIBOR Basis for such Advance. The Administrative Agent, whose
determination shall be conclusive, shall determine the LIBOR Basis on
the second Business Day prior to the applicable funding date and shall
notify the Borrower and the Lenders of such LIBOR Basis.
(ii) Subject to Section 11.9 hereof, interest on each LIBOR Advance
shall be computed on the basis of a 360-day year for the actual number
of days elapsed, and shall be payable in arrears on the applicable
Payment Date and on the Maturity Date; provided, however, that if the
Interest Period for such Advance exceeds three months, interest shall
also be due and payable in arrears on each Quarterly Date during such
Interest Period.
(c) On Bid Rate Advances. The Borrower shall pay interest on the
outstanding unpaid principal amount of each Bid Rate Advance at a per annum rate
equal to the interest rate agreed to by the Borrower and the Lender making such
Bid Rate Advance pursuant to Section 2.2(g) hereof. Interest on each Bid Rate
Advance shall be computed and shall be payable at such times as agreed upon
between the Borrower and the Lender making such Advance pursuant to Section
2.2(g) hereof.
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(d) Interest if No Notice of Selection of LIBOR Basis or Interest
Period. If the Borrower fails to give the Administrative Agent timely notice of
its selection of a LIBOR Basis for a LIBOR Advance, or if for any reason a
determination of a LIBOR Basis for any Advance is not timely concluded due to
the fault of the Borrower, the Base Rate Basis shall apply to the applicable
Advance. If the Borrower fails to give the Administrative Agent timely notice of
its selection of an Interest Period for a LIBOR Advance, a one-month Interest
Period shall apply to the applicable Advance.
(e) Interest After an Event of Default. (i) After an Event of Default
(other than an Event of Default specified in Section 8.1(f) or (g) hereof) and
during any continuance thereof, at the option of Determining Lenders, and (ii)
after an Event of Default specified in Section 8.1(f) or (g) hereof and during
any continuance thereof, automatically and without any action by the
Administrative Agent or any Lender, the Obligations shall bear interest at a
rate per annum equal to the Default Rate. Such interest shall be payable on the
earlier of demand, the Maturity Date or upon the occurrence of an Event of
Default specified in Section 8.1(f) or 8.1(g) hereof, immediately, and shall
accrue until the earlier of (i) waiver or cure (to the satisfaction of the
Determining Lenders) of the applicable Event of Default, (ii) agreement by the
Lenders to rescind the charging of interest at the Default Rate, or (iii)
payment in full of the Obligations. The Lenders shall not be required to
accelerate the maturity of the Advances, to exercise any other rights or
remedies under the Loan Papers, or to give notice to the Borrower of the
decision to charge interest at the Default Rate. The Lenders will undertake to
notify the Borrower, after the effective date, of the decision to charge
interest at the Default Rate, but any failure to do so will not affect the
application of such rate.
Section 2.4 Fees.
(a) Commitment Fee. Subject to Section 11.9 hereof, the Borrower agrees
to pay to the Administrative Agent, for the ratable account of the Lenders, a
commitment fee on the daily average unborrowed balance of the Commitment based
on the following schedule:
Per Annum
Applicability Percentage
------------- ----------
(i) If the Leverage Ratio is not less than 4.5 to 1 0.2500
(ii) If the Leverage Ratio is less than 4.5 to 1 but is 0.1875
not less than 3.5 to 1
(iii) If the Leverage Ratio is less than 3.5 to 1 0.1250
The commitment fee shall be subject to reduction or increase, as
applicable and as set forth in the table above, on a quarterly basis according
to the performance of the Borrower as tested by the Leverage Ratio. Except as
set forth in the last sentence hereof, any such increase or reduction in such
fee shall be effective on the third Business Day following the date of receipt
of the applicable financial statements. If financial statements of the Borrower
setting forth the Leverage Ratio are not received by the Administrative Agent by
the date required pursuant to Section 6.1 hereof, the commitment fee shall be
determined as if the Leverage Ratio is not less than 4.5 to 1 until such time
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as such financial statements are received. For the last fiscal quarter of any
fiscal year of the Borrower, the Borrower may provide its unaudited financial
statements, subject only to year-end adjustments, for the purpose of adjusting
the commitment fee. Notwithstanding anything above to the contrary, if the
compliance certificate required to be delivered pursuant to Section 7.5(b)
hereof, prior to any proposed acquisition, indicates that the Leverage Ratio
after giving effect to the proposed acquisition would result in an adjustment of
the commitment fee, such fee shall be increased or decreased, as the case may
be, as of the date of such acquisition.
The commitment fee shall be (i) payable in arrears on each Quarterly
Date and the Maturity Date, fully earned when due and, subject to Section 11.9
hereof, nonrefundable when paid and (ii) subject to Section 11.9 hereof,
computed on the basis of a year of 365 or 366 days, as applicable, for the
actual number of days elapsed. For purposes of calculating the commitment fee
only, (i) undrawn portions of Letters of Credit outstanding from time to time
will reduce the unused portion of the Commitment and (ii) outstanding Bid Rate
Advances shall not reduce the unused portion of the Commitment.
(b) Administrative Fee. Subject to Section 11.9 hereof, the Borrower
agrees to pay to the Administrative Agent, for its account and not the account
of the Lenders, a quarterly administrative fee as provided in a fee letter
between the Borrower and the Administrative Agent.
Section 2.5 Prepayment.
(a) Voluntary Prepayments. The principal amount of any Base Rate
Advance may be prepaid in full or in part at any time, without penalty and, upon
two Business Days' prior telephonic notice (to be promptly followed by written
notice), and any LIBOR Advance may be prepaid, subject to the penultimate
sentence of this Section upon three Business Days' prior telephonic notice (to
be promptly followed by written notice) by an Authorized Signatory to the
Administrative Agent. LIBOR Advances may be voluntarily prepaid only so long as
the Borrower concurrently reimburses the Lenders in accordance with Section 2.9
hereof. Any notice of prepayment shall be irrevocable.
(b) Mandatory Prepayment. On or before the date of any reduction of the
Commitment, the Borrower shall prepay applicable outstanding Advances in an
amount necessary to reduce the sum of outstanding Advances and Reimbursement
Obligations to an amount less than or equal to the Commitment as so reduced. The
Borrower shall first prepay all Base Rate Advances, shall thereafter prepay
LIBOR Advances, and finally prepay Bid Rate Advances. To the extent that any
prepayment requires that a LIBOR Advance be repaid on a date other than the last
day of its Interest Period, the Borrower shall reimburse each Lender in
accordance with Section 2.9 hereof.
(c) Prepayments from Sales of Assets and Equity. Concurrently with the
receipt of Net Cash Proceeds from the sale or disposition by the Borrower, any
Restricted Subsidiary, or if ▇▇▇▇▇ becomes an Unrestricted Subsidiary, ▇▇▇▇▇, of
(i) any (A) asset in which the Net Cash Proceeds from the sale or disposition
thereof exceeds $100,000 and (B) assets sold or disposed of during any fiscal
year in which the aggregate Net Cash Proceeds previously received during such
fiscal year from sales or dispositions of all assets exceeds $1,000,000, the
Borrower shall first prepay all Base Rate Advances, shall thereafter prepay
LIBOR Advances, and finally prepay Bid Rate Advances in a principal amount equal
to (y) in the case of clause (A) above, all Net Cash Proceeds from such sale
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or disposition and (z) in the case of clause (B) above, the amount that the
aggregate Net Cash Proceeds received during any such fiscal year exceeds
$1,000,000, or (ii) any Equity, the Borrower shall prepay Advances in the same
order as provided in clause (i) above, in a principal amount by which 50% of the
aggregate Net Cash Proceeds in excess of $200,000,000 are received by the
Borrower and its Restricted Subsidiaries after the Original Closing Date from
the sale or disposition of Equity.
(d) Prepayments from Issuance of Institutional Debt. Concurrently with
the receipt of Net Cash Proceeds from the issuance of Institutional Debt by the
Borrower, the Borrower shall prepay first all Base Rate Advances, shall
thereafter prepay LIBOR Advances, and finally prepay Bid Rate Advances in a
principal amount equal to such Net Cash Proceeds.
(e) Prepayments, Generally. Any prepayment of an Advance shall be
accompanied by interest accrued on the principal amount being prepaid. Any
voluntary partial prepayment of a Base Rate Advance shall be in a principal
amount which is at least $1,000,000 and which is an integral multiple of
$100,000. Any voluntary partial prepayment of a LIBOR Advance shall be in a
principal amount which is at least $1,000,000 and which is an integral multiple
of $100,000, and to the extent that any prepayment of a LIBOR Advance is made on
a date other than the last day of its Interest Period, the Borrower shall
reimburse each Lender in accordance with Section 2.9 hereof. Following the
Amortization Date, prepayments shall be applied to the mandatory reductions of
the Commitment pursuant to Section 2.6(c) and (d) hereof, and the related
repayments, pro rata, in inverse order. No prepayment or repayment pursuant to
this Section 2.5 or otherwise shall affect the automatic reductions in the
Commitment pursuant to Sections 2.6(c) and 2.6(d) hereof, until the Commitment
has been reduced to zero.
Section 2.6 Reduction and Change of Commitment.
(a) Voluntary Reduction. The Borrower shall have the right, upon not
less than 3 Business Days' notice (provided no notice shall be required for a
termination in whole of the Commitment) by an Authorized Signatory to the
Administrative Agent (if telephonic, to be confirmed by telex or in writing on
or before the date of reduction or termination), which shall promptly notify the
Lenders, to terminate or reduce the Commitment, in whole or in part. Each
partial termination shall be in an aggregate amount which is at least $5,000,000
and which is an integral multiple of $100,000, and no voluntary reduction in the
Commitment shall cause any LIBOR Advance to be repaid prior to the last day of
its Interest Period. Notwithstanding anything herein to the contrary, in no
event shall the Borrower have the right to reduce the Commitment to an amount
less than the aggregate outstanding Reimbursement Obligations.
(b) Mandatory Reduction. The Commitment shall be automatically reduced
(i) by the amount of any amount prepaid or required to be prepaid pursuant to
Section 2.5(b) hereof, (ii) if a Default or Event of Default exists or would
exist as a result of the sale or disposition of assets, by the amount of
aggregate Net Cash Proceeds received by the Borrower and its Subsidiaries after
the Closing Date from the sale and disposition of assets referred to in Section
2.5(c) hereof and which are required to be used to prepay Advances as provided
therein, (iii) if a Default or Event of Default exists, by the amount of
aggregate Net Cash Proceeds received by the Borrower and its Subsidiaries after
the Closing Date from the sale or disposition of Equity referred to in Section
2.5(c) hereof, and (iv) if a Default or Event or Default exists or would exist
as a result of the issuance of Institutional
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Debt, by the amount of any amount prepaid or required to be prepaid pursuant to
Section 2.5(d) hereof. Notwithstanding anything herein to the contrary, in no
event shall the Borrower reduce the Commitment to an amount less than the
aggregate outstanding Reimbursement Obligations.
(c) Amortization. The Commitment shall be automatically and permanently
reduced on each date set forth below until the Commitment has been reduced to
zero:
Period Reduction Amount
------ ----------------
September 30, 2000 $ 43,750,000
December 31, 2000 $ 43,750,000
March 31, 2001 $ 54,687,500
June 30, 2001 $ 54,687,500
September 30, 2001 $ 54,687,500
December 31, 2001 $ 54,687,500
March 31, 2002 $ 76,562,500
June 30, 2002 $ 76,562,500
September 30, 2002 $ 76,562,500
December 31, 2002 $ 76,562,500
March 31, 2003 $109,375,000
June 30, 2003 $109,375,000
September 30, 2003 $109,375,000
December 31, 2003 $109,375,000
March 31, 2004 $109,375,000
June 30, 2004 $109,375,000
September 30, 2004 $109,375,000
December 31, 2004 $109,375,000
March 31, 2005 $131,250,000
June 30, 2005 $131,250,000
(d) Commitment Reduction and Termination. The Commitment shall be
automatically and immediately reduced to zero and terminated on the Maturity
Date.
(e) General Requirements. Upon any reduction of the Commitment pursuant
to this Section 2.6, the Borrower shall immediately make a repayment of
applicable Advances in
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accordance with Section 2.5 hereof. The Borrower shall reimburse each Lender for
any loss or out-of-pocket expense incurred by each Lender in connection with
any such payment, as set forth in Section 2.9 hereof. The Borrower shall not
have any right to rescind any termination or reduction. Once reduced, the
Commitment may not be increased or reinstated.
Section 2.7 Non-Receipt of Funds by the Administrative Agent. Unless
the Administrative Agent shall have been notified by a Lender prior to the date
of any proposed Revolving Credit Advance (which notice shall be effective upon
receipt) that such Lender does not intend to make the proceeds of such Revolving
Credit Advance available to the Administrative Agent, the Administrative Agent
may assume that such Lender has made such proceeds available to the
Administrative Agent on such date, and the Administrative Agent may in reliance
upon such assumption (but shall not be required to) make available to the
Borrower a corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent by such Lender, the Administrative
Agent shall be entitled to recover such amount on demand from such Lender (or,
if such Lender fails to pay such amount forthwith upon such demand, from the
Borrower) together with interest thereon in respect of each day during the
period commencing on the date such amount was available to the Borrower and
ending on (but excluding) the date the Administrative Agent receives such amount
from the Lender, with interest thereon if paid by such Lender, at a per annum
rate equal to the Federal Funds Rate, and if paid by the Borrower, at the
applicable Base Rate Basis. No Lender shall be liable for any other Lender's
failure to fund a Revolving Credit Advance hereunder.
Section 2.8 Payment of Principal of Advances. The Borrower agrees to
pay the principal amount of the Advances to the Administrative Agent for the
account of the Lenders as follows:
(a) End of Interest Period. The principal amount of each LIBOR Advance
and Bid Rate Advance hereunder shall be due and payable on its Payment Date,
which principal payment may be made by means of a Refinancing Advance.
(b) Commitment Reduction. On the date of reduction of the Commitment
pursuant to Section 2.6 hereof, including the Maturity Date, the aggregate
amount of the Advances outstanding on such date of reduction in excess of the
Commitment as reduced minus all outstanding Reimbursement Obligations shall be
due and payable, which principal payment may not be made by means of Refinancing
Advances.
(c) Maturity Date. The principal amount of the Advances, all accrued
interest and fees thereon, and all other Obligations, shall be due and payable
in full on the Maturity Date.
Section 2.9 Reimbursement. Whenever any Lender shall sustain or incur
any losses or reasonable out-of-pocket expenses in connection with (a) failure
by the Borrower to borrow any LIBOR Advance or Bid Rate Advance which is at a
fixed rate after having given notice of its intention to borrow in accordance
with Section 2.2 hereof (whether by reason of the Borrower's election not to
proceed or the non-fulfillment of any of the conditions set forth in Article 3
hereof), or (b) any prepayment for any reason of any LIBOR Advance in whole or
in part (including a prepayment pursuant to Sections 2.5(c), 2.5(d) and 9.3(b)
hereof), the Borrower agrees to pay to any such Lender, upon its demand, an
amount sufficient to compensate such Lender for all such losses
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and out-of-pocket expenses. Such Lender's good faith determination of the amount
of such losses or out-of-pocket expenses, calculated in its usual fashion,
absent manifest error, shall be binding and conclusive. Such losses shall
include, without limiting the generality of the foregoing, lost profits and
reasonable expenses incurred by such Lender in connection with the re-employment
of funds prepaid, repaid, converted or not borrowed, converted or paid, as the
case may be. Upon request of the Borrower, such Lender shall provide a
certificate setting forth the amount to be paid to it by the Borrower hereunder
and calculations therefor.
Section 2.10 Manner of Payment.
(a) Each payment (including prepayments) by the Borrower of the
principal of or interest on the Advances, fees, and any other amount owed under
this Agreement or any other Loan Paper shall be made not later than 1:00 p.m.
(Dallas, Texas time) on the date specified for payment under this Agreement to
the Administrative Agent at the Administrative Agent's office, in lawful money
of the United States of America constituting immediately available funds.
(b) If any payment under this Agreement or any other Loan Paper shall
be specified to be made upon a day which is not a Business Day, it shall be made
on the next succeeding day which is a Business Day, unless such Business Day
falls in another calendar month, in which case payment shall be made on the
preceding Business Day. Any extension of time shall in such case be included in
computing interest and fees, if any, in connection with such payment.
(c) The Borrower agrees to pay principal, interest, fees and all other
amounts due under the Loan Papers without deduction for set-off or counterclaim
or any deduction whatsoever.
(d) Each payment by the Borrower in respect of obligations relating to
the Revolving Credit Advance and the Letters of Credit (whether for principal,
interest, fees or otherwise) shall be made to the Administrative Agent for the
account of the Lenders pro rata in accordance with their respective Specified
Percentages. Each payment by the Borrower in respect of obligations related to
Bid Rate Advances (whether for principal, interest, fees or otherwise) shall be
made to the Administrative Agent for the account of each Lender holding such Bid
Rate Advance. Notwithstanding anything in this Section 2.10(d) or any other
provision of this Agreement or any other Loan Paper to the contrary, any payment
by the Borrower in respect of any Advances after acceleration of the Advances
pursuant to Section 8.2 or any monies received by the Administrative Agent as a
result of the exercise of remedies under any Loan Papers after acceleration of
the Advances pursuant to Section 8.2 shall be distributed pro rata to each
Lender based on the percentage that the outstanding Advances and Reimbursement
Obligations owed to such Lender bears to the aggregate Advances and
Reimbursement Obligations owed to all Lenders after the payment of the
Administrative Agent's expenses incurred on behalf of the Lenders then due and
payable.
Section 2.11 LIBOR Lending Offices. Each Lender's initial LIBOR Lending
Office is set forth opposite its name in Schedule 1.2 attached hereto. Each
Lender shall have the right at any time and from time to time to designate a
different office of itself or of any Affiliate as such Lender's LIBOR Lending
Office, and to transfer any outstanding LIBOR Advance to such LIBOR Lending
Office. No such designation or transfer shall result in any liability on the
part of the Borrower for
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increased costs or expenses resulting solely from such designation or transfer
(except any such transfer which is made by a Lender pursuant to Section 9.2 or
9.3 hereof, or otherwise for the purpose of complying with Applicable Law).
Increased costs for expenses resulting from a change in law occurring subsequent
to any such designation or transfer shall be deemed not to result solely from
such designation or transfer.
Section 2.12 Sharing of Payments. Any Lender obtaining a payment
(whether voluntary or involuntary, due to the exercise of any right of set-off,
or otherwise) on account of its Revolving Credit Advances or Reimbursement
Obligations in excess of its Specified Percentage of all payments made by the
Borrower with respect to Revolving Credit Advances or Reimbursement Obligations
shall purchase from each other Lender such participation in the Revolving Credit
Advances or Reimbursement Obligations made by such other Lender as shall be
necessary to cause such purchasing Lender to share the excess payment pro rata
according to Specified Percentages with each other Lender which is not in
default of its obligations hereunder with respect to such Revolving Credit
Advance or Reimbursement Obligations; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such purchasing
Lender, the purchase shall be rescinded and the purchase price restored to the
extent of such recovery, but without interest, provided, further that after an
Event of Default, such payments will be shared pro rata among all Lenders based
on the total amount of all Advances or Reimbursement Obligations outstanding.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section, to the fullest extent permitted by law, may
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
Section 2.13 Calculation of LIBOR Rate. The provisions of this
Agreement relating to calculation of the LIBOR Rate are included only for the
purpose of determining the rate of interest or other amounts to be paid
hereunder that are based upon such rate, it being understood that each Lender
shall be entitled to fund and maintain its funding of all or any part of a LIBOR
Advance as it sees fit.
Section 2.14 Booking Loans. Any Lender may make, carry or transfer
Advances at, to or for the account of any of its branch offices or the office of
any Affiliate.
Section 2.15 Taxes.
(a) Any and all payments by the Borrower hereunder shall be made, in
accordance with Section 2.10, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges and
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender and the Administrative Agent, taxes imposed on its overall net
income, gross receipts, and capital and franchise taxes imposed on it (including
interest and penalties imposed thereon), by the jurisdiction under the laws of
which such Lender or the Administrative Agent (as the case may be) is organized
or any political subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as "Taxes"). If the Borrower shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder to any Lender or the
Administrative Agent, (x) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions
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applicable to additional sums payable under this Section 2.15) such Lender or
the Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (y) the Borrower
shall make such deductions and (z) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with Applicable Law.
(b) In addition, the Borrower agrees to pay any and all stamp and
documentary taxes and any and all other excise and property taxes, charges and
similar levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any
other Loan Paper (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.15) paid by such Lender or the Administrative Agent
(as the case may be) and all liabilities (including penalties, additions to tax,
interest and reasonable expenses) arising therefrom or with respect thereto
whether or not such Taxes or Other Taxes were correctly or legally asserted,
other than penalties, additions to tax, interest and expenses arising as a
result of gross negligence on the part of such Lender or the Administrative
Agent, provided, however, that the Borrower shall have no obligation to
indemnify such Lender or the Administrative Agent (i) unless notice has been
given by such Lender or the Administrative Agent, as applicable, in a time
sufficient to afford the Borrower, in good faith, a reasonable opportunity to
contest such payment by such Lender or the Administrative Agent, provided such
opportunity to contest exists under Applicable Law, and (ii) until such Lender
or the Administrative Agent shall have delivered to the Borrower a certificate
setting forth in reasonable detail the basis of the Borrower's obligation to
indemnify such Lender or the Administrative Agent pursuant to this Section 2.15.
This indemnification shall be made within 30 days from the date such Lender or
the Administrative Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
will furnish to the Administrative Agent the original or a certified copy of a
receipt evidencing payment thereof. If no Taxes are payable in respect of any
payment hereunder, the Borrower will furnish to the Administrative Agent a
certificate from each appropriate taxing authority, or an opinion of counsel
acceptable to the Administrative Agent, in either case stating that such payment
is exempt from or not subject to Taxes, provided, however, that such certificate
or opinion need only be given if: (i) the Borrower makes any payment from any
account located outside the United States, or (ii) the payment is made by a
payor that is not a United States Person. For purposes of this Section 2.15 the
terms "United States" and "United States Person" shall have the meanings set
forth in Section 7701 of the Code.
(e) Each Lender which is not a United States Person hereby agrees that:
(i) it shall, no later than the Closing Date (or, in the case of a
Lender which becomes a party hereto pursuant to Section 11.6 after the
Closing Date, the date upon which such Lender becomes a party hereto)
deliver to the Borrower through the Administrative Agent, with a copy
to the Administrative Agent:
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(A) if any lending office is located in the United States
of America, two (2) accurate and complete signed
originals of Internal Revenue Service Form 4224 or
any successor thereto ("Form 4224"),
(B) if any lending office is located outside the United
States of America, two (2) accurate and complete
signed originals of Internal Revenue Service Form
1001 or any successor thereto ("Form 1001").
in each case indicating that such Lender is on the date of delivery
thereof entitled to receive payments of principal, interest and fees
for the account of such lending office or lending offices under this
Agreement free from withholding of United States Federal income tax;
(ii) if at any time such Lender changes its lending office or
lending offices or selects an additional lending office it shall, at
the same time or reasonably promptly thereafter but only to the extent
the forms previously delivered by it hereunder are no longer effective,
deliver to the Borrower through the Administrative Agent, with a copy
to the Administrative Agent, in replacement for the forms previously
delivered by it hereunder:
(A) if such changed or additional lending office is
located in the United States of America, two (2)
accurate and complete signed originals of Form 4224;
or
(B) otherwise, two (2) accurate and complete signed
originals of Form 1001,
in each case indicating that such Lender is on the date of delivery
thereof entitled to receive payments of principal, interest and fees
for the account of such changed or additional lending office under this
Agreement free from withholding of United States Federal income tax;
(iii) it shall, before or promptly after the occurrence of any
event (including the passing of time but excluding any event mentioned
in clause (ii) above) requiring a change in the most recent Form 4224
or Form 1001 previously delivered by such Lender and if the delivery of
the same be lawful, deliver to the Borrower through the Administrative
Agent with a copy to the Administrative Agent, two (2) accurate and
complete original signed copies of Form 4224 or Form 1001 in
replacement for the forms previously delivered by such Lender; and
(iv) it shall, promptly upon the request of the Borrower to
that effect, deliver to the Borrower such other forms or similar
documentation as may be required from time to time by any applicable
law, treaty, rule or regulation in order to establish such Lender's tax
status for withholding purposes.
(f) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.15 shall survive the payment in full of principal and interest
hereunder.
(g) Any Lender claiming any additional amounts payable pursuant to this
Section 2.15 shall use its reasonable best efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
lending office, if the making of such a change would
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avoid the need for, or reduce the amount of, any such additional amounts which
may thereafter accrue and would not, in the sole judgment of such Lender, be
otherwise disadvantageous to such Lender.
(h) Each Lender (and the Administrative Agent with respect to payments
to the Administrative Agent for its own account) agrees that (i) it will take
all reasonable actions by all usual means to maintain all exemptions, if any,
available to it from United States withholding taxes (whether available by
treaty, existing administrative waiver, by virtue of the location of any
Lender's lending office) and (ii) otherwise cooperate with the Borrower to
minimize amounts payable by the Borrower under this Section 2.15; provided,
however, the Lenders and the Administrative Agent shall not be obligated by
reason of this Section 2.15(h) to contest the payment of any Taxes or Other
Taxes or to disclose any information regarding its tax affairs or tax
computations or reorder its tax or other affairs or tax or other planning.
Section 2.16 Letters of Credit.
(a) The Letter of Credit Facility. The Borrower may request the Issuing
Bank, on the terms and conditions hereinafter set forth, to issue, and the
Issuing Bank shall, if so requested, issue, letters of credit (such letters of
credit together with the Existing Letters of Credit the "Letters of Credit") for
the account of the Borrower from time to time on any Business Day from the date
of the initial Advance until the Maturity Date in an aggregate maximum amount
(assuming compliance with all conditions to drawing) not to exceed at any time
outstanding the lesser of (i) $200,000,000 (the "Letter of Credit Facility"),
and (ii) the difference of (A) the Commitment minus (B) the aggregate principal
amount of Advances then outstanding. No Letter of Credit shall have an
expiration date (including all rights of renewal) later than the earlier of (i)
the Maturity Date or (ii) one year after the date of issuance thereof.
Immediately upon the issuance of each Letter of Credit (or, with respect to the
Existing Letters of Credit, upon satisfaction of the conditions set forth in
Sections 3.1 and 3.2 of this Agreement), the Issuing Bank shall be deemed to
have sold and transferred to each Lender, and each Lender shall be deemed to
have purchased and received from the Issuing Bank, in each case irrevocably and
without any further action by any party, an undivided interest and participation
in such Letter of Credit, each drawing thereunder and the obligations of the
Borrower under this Agreement in respect thereof in an amount equal to the
product of (i) such Lender's Specified Percentage of the Commitment times (ii)
the maximum amount available to be drawn under such Letter of Credit (assuming
compliance with all conditions to drawing). Within the limits of the Letter of
Credit Facility, and subject to the limits referred to above, the Borrower may
request the issuance of Letters of Credit under this Section 2.16(a), repay any
Advances resulting from drawings thereunder pursuant to Section 2.16(c) and
request the issuance of additional Letters of Credit under this Section 2.16(a).
During the term of this Agreement, provided that no Default or Event of Default
then exists and subject to the same conditions for the issuance of a Letter of
Credit set forth in Section 3.2 hereof, the Issuing Bank may at the Borrower's
option, automatically renew any expiring Letters of Credit for a period of time
not to exceed the earlier of (x) five (5) days prior to the Maturity Date or (y)
one year after the date of issuance thereof.
(b) Request for Issuance. Each Letter of Credit shall be issued upon
notice, given not later than 11:00 a.m. (Dallas time) on the third Business Day
prior to the date of the proposed issuance of such Letter of Credit, by the
Borrower to the Issuing Bank, which shall give to the
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Administrative Agent and each Lender prompt notice thereof by telex, telecopier
or cable. Each Letter of Credit shall be issued upon notice given in accordance
with the terms of any separate agreement between the Borrower and the Issuing
Bank in form and substance reasonably satisfactory to the Borrower and the
Issuing Bank providing for the issuance of Letters of Credit pursuant to this
Agreement and containing terms and conditions not inconsistent with this
Agreement (a "Letter of Credit Agreement"), provided that if any such terms and
conditions are inconsistent with this Agreement, this Agreement shall control.
Each such notice of issuance of a Letter of Credit (a "Notice of Issuance")
shall be by telex, telecopier or cable, specifying therein, the requested (A)
date of such issuance (which shall be a Business Day), (B) maximum amount of
such Letter of Credit, (C) expiration date of such Letter of Credit, (D) name
and address of the beneficiary of such Letter of Credit, (E) form of such Letter
of Credit and (F) such other information as shall be required pursuant to the
relevant Letter of Credit Agreement. If the requested terms of such Letter of
Credit are acceptable to the Issuing Bank in its reasonable discretion, the
Issuing Bank shall, subject to this Section 2.16(b), upon fulfillment of the
applicable conditions set forth in Article 3 hereof, make such Letter of Credit
available to the Borrower at its office referred to in Section 11.1 or as
otherwise agreed with the Borrower in connection with such issuance.
(c) Drawing and Reimbursement. The payment by the Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by the Issuing Bank of a Revolving Credit Advance, which
shall bear interest at the applicable Base Rate Basis, in the amount of such
draft (but without any requirement for compliance with the conditions set forth
in Article 3 hereof). In the event that a drawing under any Letter of Credit is
not reimbursed by the Borrower by 11:00 a.m. (Dallas time) on the first Business
Day after such drawing, the Issuing Bank shall promptly notify Administrative
Agent and each other Lender. Each such Lender shall, on the first Business Day
following such notification, make an Revolving Credit Advance, which shall bear
interest at the applicable Base Rate Basis, and shall be used to repay the
applicable portion of the Issuing Bank's Revolving Credit Advance with respect
to such Letter of Credit, in an amount equal to the amount of its participation
in such drawing for application to reimburse the Issuing Bank (but without any
requirement for compliance with the applicable conditions set forth in Article 3
hereof) and shall make available to the Administrative Agent for the account of
the Issuing Bank, by deposit at the Administrative Agent's office, in same day
funds, the amount of such Revolving Credit Advance. In the event that any Lender
fails to make available to the Administrative Agent for the account of the
Issuing Bank the amount of such Revolving Credit Advance, the Issuing Bank shall
be entitled to recover such amount on demand from such Lender together with
interest thereon at a rate per annum equal to the lesser of (i) the Highest
Lawful Rate or (ii) the Federal Funds Rate.
(d) Increased Costs. If any change in any law or regulation or in the
interpretation thereof by any court or administrative or governmental authority
charged with the administration thereof shall either (i) impose, modify or deem
applicable any reserve, special deposit or similar requirement against letters
of credit or guarantees issued by, or assets held by, or deposits in or for the
account of, the Issuing Bank or any Lender or (ii) impose on the Issuing Bank or
any Lender any other condition regarding this Agreement or such Lender or any
Letter of Credit, and the result of any event referred to in the preceding
clause (i) or (ii) shall be, in the reasonable opinion of the Issuing Bank or
any Lender, to increase the cost to the Issuing Bank of issuing or maintaining
any Letter of Credit or to any Lender of purchasing any participation therein or
making any Advance
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pursuant to Section 2.16(c) ("Increased Letter of Credit Costs"), then, upon
demand by the Issuing Bank or such Lender, the Borrower shall, subject to
Section 11.9 hereof, pay to the Issuing Bank or such Lender, from time to time
as specified by the Issuing Bank or such Lender, additional amounts that shall
be sufficient to compensate the Issuing Bank or such Lender for such Increased
Letter of Credit Costs. Notwithstanding the foregoing, any demand for Increased
Letter of Credit Costs shall not include any Letter of Credit costs with respect
to any period more than 180 days prior to the date that the Issuing Bank or any
Lender gives notice to the Borrower of such Increased Letter of Credit Costs
unless the effective date of the condition which results in the right to
received Increased Letter of Credit Costs is retroactive (the "Increased Letter
of Credit Costs Retroactive Effective Date"). If any Increased Letter of Credit
Costs has an Increased Costs Letter of Credit Retroactive Effective Date and the
Issuing Bank or any Lender demands compensation within 180 days after the date
setting the Increased Letter of Credit Costs Effective Date (the "Increased
Letter of Credit Costs Set Date"), the Issuing Bank or such Lender, as
appropriate, shall have the right to receive such Increased Letter of Credit
Costs from the Increased Letter of Credit Retroactive Effective Date. If the
Issuing Bank or a Lender does not demand such Increased Letter of Credit Costs
within 180 days after the Increased Letter of Credit Costs Set Date, the Issuing
Bank or such Lender, as appropriate, may not receive payment of Increased Letter
of Credit Costs with respect to any period more than 180 days prior to such
demand. A certificate as to the amount of such increased cost, submitted to the
Borrower by the Issuing Bank or such Lender, shall include in reasonable detail
the basis for the demand for additional compensation and shall be conclusive and
binding for all purposes, absent demonstrable error. The obligations of the
Borrower under this Section 2.16(d) shall survive termination of this Agreement.
The Issuing Bank or any Lender claiming any additional compensation under this
Section 2.16(d) shall use reasonable efforts (consistent with legal and
regulatory restrictions) to reduce or eliminate any such additional compensation
which may thereafter accrue and which efforts would not, in the sole discretion
of the Issuing Bank or such Lender, be otherwise disadvantageous.
(e) Obligations Absolute. The obligations of the Borrower under this
Agreement with respect to any Letter of Credit, any Letter of Credit Agreement
and any other agreement or instrument relating to any Letter of Credit or any
Advance pursuant to Section 2.16(c) shall be unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement, such
Letter of Credit Agreement and such other agreement or instrument under all
circumstances, including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of this Agreement,
any other Loan Paper, any Letter of Credit Agreement, any Letter of
Credit or any other agreement or instrument relating thereto
(collectively, the "L/C Related Documents");
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of the Borrower in
respect of the Letters of Credit or any Revolving Credit Advance
pursuant to Section 2.16(c) or any other amendment or waiver of or any
consent to departure from all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense or other
right that the Borrower may have at any time against any beneficiary or
any transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Issuing
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Bank, any Lender or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by the L/C Related
Documents or any unrelated transaction;
(iv) any statement or any other document presented under a
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, except to the extent that any payment by the
Issuing Bank against any such statement or other document shall be as a
result of the Issuing Bank's gross negligence or willful misconduct;
(v) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not comply
with the terms of the Letter of Credit, except for any payment made
upon the Issuing Bank's gross negligence or willful misconduct;
(vi) any exchange, release or non-perfection of any
Collateral, or any release or amendment or waiver of or consent to
departure from any Guaranty, for all or any of the Obligations of the
Borrower in respect of the Letters of Credit or any Revolving Credit
Advance pursuant to Section 2.16(c); or
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including, without limitation,
any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or a guarantor, other
than the Issuing's Bank gross negligence or wilful misconduct.
(f) Compensation for Letters of Credit.
(i) Credit Fees. Subject to Section 11.9 hereof, the Borrower
shall pay to the Administrative Agent for the account of each Lender a
credit fee (which shall be payable quarterly in arrears on each
Quarterly Date and on the Maturity Date) on the average daily amount
available for drawing under all outstanding Letters of Credit
(computed, subject to Section 11.9 hereof, on the basis of a 365-day
year for the actual number of days elapsed) at the following per annum
percentages, applicable in the following situations:
Applicability Percentage
------------- ----------
(i) If the Leverage Ratio is not less than 1.0000
6.00 to 1
(ii) If the Leverage Ratio is less than 6.00 to 0.8750
1 but is not less than 5.75 to 1
(iii) If the Leverage Ratio is less than 5.75 to 0.7500
1 but is not less than 5.50 to 1
(iv) If the Leverage Ratio is less than 5.50 to 0.6250
1 but is not less than 5.00 to 1
(v) If the Leverage Ratio is less than 5.00 to 0.5000
1 but is not less than 4.50 to 1
(vi) If the Leverage Ratio is less than 4.50 to 1 0.4000
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(ii) Adjustment of Credit Fee. The credit fee payable in
respect of the Letters of Credit shall be subject to reduction or
increase, as applicable and as set forth in the table in (i) above, on
a quarterly basis according to the performance of the Borrower as
tested by the Leverage Ratio. Except as set forth in the last sentence
hereof, any such increase or reduction in such fee shall be effective
on the third Business Day following the date of receipt of the
applicable financial statements. If financial statements of the
Borrower setting forth the Leverage Ratio are not received by the
Administrative Agent by the date required pursuant to Section 6.1
hereof, the fee payable in respect of the Letters of Credit shall be
determined as if the Leverage Ratio is not less than 6.0 to 1 until
such time as such financial statements are received. For the last
fiscal quarter of any fiscal year of the Borrower, the Borrower may
provide its unaudited financial statements, subject only to year-end
adjustments, for the purpose of adjusting the Letter of Credit fee.
Notwithstanding anything above to the contrary, if the compliance
certificate required to be delivered pursuant to Section 7.5(b) hereof,
prior to any proposed acquisition, indicates that the Leverage Ratio
after giving effect to the proposed acquisition would result in an
adjustment of the Letter of Credit fee, such fee shall be increased or
decreased, as the case may be, as of the date of such acquisition.
(iii) Issuance Fee. Subject to Section 11.9 hereof, the
Borrower shall pay to the Administrative Agent, for the sole account of
the Issuing Bank, an issuance fee of $500 on the date of issuance of
each Letter of Credit.
(g) L/C Cash Collateral Account.
(i) Upon the occurrence of an Event of Default and demand by
the Administrative Agent pursuant to Section 8.2(c), other than an
Event of Default pursuant to Section 8.1(f) or 8.1(g) hereof upon which
event the referenced sums will become immediately due and payable
without further action by the Administrative Agent, the Borrower will
promptly pay to the Administrative Agent in immediately available funds
an amount equal to 100% of the maximum amount then available to be
drawn under the Letters of Credit then outstanding. Any amounts so
received by the Administrative Agent shall be deposited by the
Administrative Agent in a deposit account maintained by the Issuing
Bank (the "L/C Cash Collateral Account").
(ii) As security for the payment of all Reimbursement
Obligations and for any other Obligations, the Borrower hereby grants,
conveys, assigns, pledges, sets over and transfers to the
Administrative Agent (for the benefit of the Issuing Bank and Lenders),
and
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creates in the Administrative Agent's favor (for the benefit of the
Issuing Bank and Lenders) a Lien in, all money, instruments and
securities at any time held in or acquired in connection with the L/C
Cash Collateral Account, together with all proceeds thereof. The L/C
Cash Collateral Account shall be under the sole dominion and control of
the Administrative Agent and the Borrower shall have no right to
withdraw or to cause the Administrative Agent to withdraw any funds
deposited in the L/C Cash Collateral Account except as otherwise
provided in Section 2.16(g)(iii). At any time and from time to time,
upon the Administrative Agent's request, the Borrower promptly shall
execute and deliver any and all such further instruments and documents,
including UCC financing statements, as may be necessary, appropriate or
desirable in the Administrative Agent's judgment to obtain the full
benefits (including perfection and priority) of the security interest
created or intended to be created by this paragraph (ii) and of the
rights and powers herein granted. The Borrower shall not create or
suffer to exist any Lien on any amounts or investments held in the L/C
Cash Collateral Account other than the Lien granted under this
paragraph (ii) and Liens arising by operation of Law and not by
contract which secure amounts not yet due and payable.
(iii) The Administrative Agent shall (A) apply any funds in
the L/C Cash Collateral Account on account of Reimbursement Obligations
when the same become due and payable if and to the extent that the
Borrower shall fail directly to pay such Reimbursement Obligations, (B)
after the Maturity Date, apply any proceeds remaining in the L/C Cash
Collateral Account first to pay any unpaid Obligations then outstanding
hereunder and then to refund any remaining amount to the Borrower, and
(C) provided no Default or Event of Default shall be in existence,
return any funds in the L/C Cash Collateral Account to the Borrower.
(iv) The Borrower, no more than once in any calendar month,
may direct the Administrative Agent to invest the funds held in the L/C
Cash Collateral Account (so long as the aggregate amount of such funds
exceeds any relevant minimum investment requirement) in (A) direct
obligations of the United States or any agency thereof, or obligations
guaranteed by the United States or any agency thereof and (B) one or
more other types of investments permitted by the Determining Lenders,
in each case with such maturities as the Borrower, with the consent of
the Determining Lenders, may specify, pending application of such funds
on account of Reimbursement Obligations or on account of other
Obligations, as the case may be. In the absence of any such direction
from the Borrower, the Administrative Agent shall invest the funds held
in the L/C Cash Collateral Account (so long as the aggregate amount of
such funds exceeds any relevant minimum investment requirement) in one
or more types of investments with the consent of the Determining
Lenders with such maturities as the Borrower, with the consent of the
Determining Lenders, may specify, pending application of such funds on
account of Reimbursement Obligations or on account of other
Obligations, as the case may be. All such investments shall be made in
the Administrative Agent's name for the account of the Lenders. The
Borrower recognizes that any losses or taxes with respect to such
investments shall be borne solely by the Borrower, and the Borrower
agrees to hold the Administrative Agent and the Lenders harmless from
any and all such losses and taxes. Administrative Agent may liquidate
any investment held in the L/C Cash Collateral Account in order to
apply the proceeds of such investment on account of the Reimbursement
Obligations (or on
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account of any other Obligation then due and payable, as the case may
be) without regard to whether such investment has matured and without
liability for any penalty or other fee incurred (with respect to which
the Borrower hereby agrees to reimburse the Administrative Agent) as a
result of such application.
(v) The Borrower shall pay to the Administrative Agent the
fees customarily charged by the Issuing Bank with respect to the
maintenance of accounts similar to the L/C Cash Collateral Account in
an amount not to exceed $1,000 in aggregate per calendar year.
ARTICLE 3
Conditions Precedent
Section 3.1 Conditions Precedent to Closing and the Initial Advance and
the Letters of Credit. The obligation of each Lender to sign this Agreement and
to make the initial Advance and the obligation of the Issuing Bank to issue the
initial Letter of Credit is subject to receipt by the Administrative Agent of
each of the following, in form and substance satisfactory to the Administrative
Agent, with a copy (except for the notes) for each Lender:
(a) a loan certificate of the Borrower certifying as to the accuracy of
its representations and warranties in the Loan Papers, certifying that no
Default or Material Adverse Effect, except as listed in Schedule 4.1(k) hereto,
has occurred since the last financial statements delivered to the Lenders prior
to the Closing Date with respect to the Borrower and its Subsidiaries on a
consolidated basis, certifying the Borrower is in compliance with all covenants
in the Agreement, and including a certificate of incumbency with respect to each
Authorized Signatory, and including (i) a copy of the Articles of Incorporation
of the Borrower, certified to be true, complete and correct by the secretary of
state of its state of incorporation, (ii) a copy of the By-Laws of the Borrower,
as in effect on the Closing Date (or a certification that there has been no
change thereto from such form provided in connection with the Original Credit
Agreement), (iii) a copy of the resolutions of the Borrower authorizing it to
execute, deliver and perform this Agreement and the other Loan Papers to which
it is a party, as applicable and (iv) a copy of a certificate of good standing
and a certificate of existence for its state of incorporation and each state in
which it is or should be qualified to do business;
(b) a certificate of an officer of the Borrower acceptable to the
Lenders, certifying that there have been no material changes with respect to (i)
any of the matters certified pursuant to Section 3.1(b) of the Original Credit
Agreement in connection with the Closing of the Original Credit Agreement to any
Restricted Subsidiary that is a material Restricted Subsidiary (or if there have
been any such changes, a description of such changes) and (ii) any of the
material organizational documents and agreements with respect to any Restricted
Subsidiary acquired by the Borrower or any Restricted Subsidiary after the date
of the Original Credit Agreement (or if there have been any such changes, a
description of such changes);
(c) an affirmation of all other Loan Papers by the appropriate Person
that executed such Loan Paper;
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(d) an opinion of counsel and of FCC counsel to the Borrower and its
Restricted Subsidiaries addressed to the Lenders and in form and substance
satisfactory to the Lenders, dated the Closing Date;
(e) reimbursement for Administrative Agent for Special Counsel's
reasonable fees and expenses rendered through the date hereof;
(f) evidence that all corporate or organizational proceedings of the
Borrower and its Restricted Subsidiaries taken in connection with the
transactions contemplated by this Agreement and the other Loan Papers shall be
reasonably satisfactory in form and substance to the Lenders and Special
Counsel; and the Lenders shall have received copies of all documents or other
evidence which the Administrative Agent, Special Counsel or any Lender may
reasonably request in connection with such transactions;
(g) copies of the following consolidated and consolidating financial
statements for the Borrower and its Subsidiaries, as of and for the year ended
December 31, 1999 (audited) and the fiscal quarter ending March 31, 2000: (i)
consolidated and consolidating balance sheets as of the end of such period, and
(ii) consolidated and consolidating statements of income and changes in cash for
such period; which financial statements shall set forth in comparative form
figures for the corresponding periods in the previous fiscal year, all in
reasonable detail and certified by an Authorized Signatory to the best of his
knowledge to be complete and correct and prepared in accordance with GAAP (other
than footnotes thereto), with the quarter ended March 31, 2000 financials
subject to year-end adjustment;
(h) in form and substance satisfactory to the Lenders and Special
Counsel, such other documents, instruments and certificates as the
Administrative Agent or any Lender may reasonably require in connection with the
transactions contemplated hereby, including without limitation the status,
organization or authority of the Borrower or any Restricted Subsidiary, and the
enforceability of and security for the Obligation; and
(i) there shall be no Default or Event of Default under any of the Loan
Papers (except as waived or cured hereby), both before and after giving effect
to the initial Advance under this Agreement.
Section 3.2 Conditions Precedent to All Advances and Letters of Credit.
The obligation of each Lender to make each Advance (including the initial
Advance) and the obligation of the Issuing Bank to issue each Letter of Credit
(including the initial Letter of Credit) hereunder is subject to fulfillment of
the following conditions immediately prior to or contemporaneously with each
such Advance or issuance:
(a) With respect to Advances (other than Refinancing Advances that are
Refinancing Advances of Revolving Credit Advances) and each issuance of a Letter
of Credit, all of the representations and warranties of the Borrower under this
Agreement, which, pursuant to Section 4.2 hereof, are made at and as of the time
of such Advance or issuance, shall be true and correct at such
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time in all material respects, both before and after giving effect to the
application of the proceeds of the Advance or issuance;
(b) The incumbency of the Authorized Signatories shall be as stated in
the certificate of incumbency delivered in the Borrower's loan certificate
pursuant to Section 3.1(a) or as subsequently modified and reflected in a
certificate of incumbency delivered to the Administrative Agent. The Lenders
may, without waiving this condition, consider it fulfilled and a representation
by the Borrower made to such effect if no written notice to the contrary, dated
on or before the date of such Advance or issuance, is received by the
Administrative Agent from the Borrower prior to the making of such Advance or
issuance;
(c) There shall not exist a Default hereunder, with respect to Advances
(other than Refinancing Advances that are Refinancing Advances of Revolving
Credit Advances) and with respect to issuance of each Letter of Credit, or an
Event of Default, with respect to any Refinancing Advance, and, with respect to
each Advance (other than a Refinancing Advance that is a Refinancing Advances of
a Revolving Credit Advance) and with respect to issuance of each Letter of
Credit, the Administrative Agent shall have received written or telephonic
certification thereof by an Authorized Signatory (which certification, if
telephonic, shall be followed promptly by written certification);
(d) The aggregate Advances and amount available for draws under Letters
of Credit, after giving effect to such proposed Advance or Letter of Credit,
shall not exceed the maximum principal amount then permitted to be outstanding
hereunder;
(e) The Administrative Agent shall have received all such other
certificates, reports, statements or other documents as the Administrative Agent
or any Lender may reasonably request; and
(f) there shall be no Default or Event of Default under any of the Loan
Papers both before and after giving effect to any Advance.
Each request by the Borrower to the Administrative Agent or the Issuing
Bank, as appropriate, for an Advance or the issuance of a Letter of Credit shall
constitute a representation and warranty by the Borrower as of the date of the
making of such Advance or the issuance of such Letter of Credit that all the
conditions contained in this Section 3.2 have been satisfied.
ARTICLE 4
Representations and Warranties
Section 4.1 Representations and Warranties. The Borrower hereby
represents and warrants to each Lender as follows:
(a) Organization; Power; Qualification. As of the Closing Date, (i) the
respective jurisdictions of incorporation or organization, as applicable, and
percentage ownership by the Borrower or another Subsidiary of the Subsidiaries
listed on Schedule 4.1(a) attached hereto are true and correct and (ii) all
Subsidiaries other than Radio Data Group, Inc., are Restricted Subsidiaries
except as otherwise allowed pursuant to Section 5.12 hereof. Each of the
Borrower and its
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Restricted Subsidiaries is a corporation, partnership, limited liability company
or other entity duly organized, validly existing and in good standing under the
laws of its state of organization. Each of the Borrower and its Restricted
Subsidiaries has the corporate or organizational power and authority to own its
properties and to carry on its business as now being and hereafter proposed to
be conducted. Each of the Borrower and its Restricted Subsidiaries is duly
qualified, in good standing and authorized to do business in each jurisdiction
in which the character of its properties or the nature of its business requires
such qualification or authorization.
(b) Authorization. The Borrower has corporate power and has taken all
necessary corporate action to authorize it to borrow hereunder. Each of the
Borrower and its Restricted Subsidiaries has corporate or organizational power
and authority and has taken all necessary corporate or organizational action, as
the case may be, to execute, deliver and perform the Loan Papers to which it is
party in accordance with the terms thereof, and to consummate the transactions
contemplated thereby. Each Loan Paper has been duly executed and delivered by
the Borrower or the Restricted Subsidiary executing it. Each of the Loan Papers
to which the Borrower and its Restricted Subsidiaries are party is a legal,
valid and binding respective obligation of the Borrower or the Restricted
Subsidiary, as applicable, enforceable in accordance with its terms, subject, to
enforcement of remedies, to the following qualifications: (i) equitable
principles generally, and (ii) bankruptcy, insolvency, liquidation,
reorganization, reconstruction and other similar laws affecting enforcement of
creditors' rights generally (insofar as any such law relates to the bankruptcy,
insolvency or similar event of the Borrower or any Restricted Subsidiary).
(c) Compliance with Other Loan Papers and Contemplated Transactions.
The execution, delivery and performance by the Borrower and its Restricted
Subsidiaries of the other Loan Papers to which they are respectively a party,
and the consummation of the transactions contemplated thereby, do not and will
not (i) require any consent or approval not already obtained, (ii) violate any
Applicable Law, (iii) conflict with, result in a breach of, or constitute a
default under the articles of incorporation or by-laws of the Borrower or any
Restricted Subsidiary, or under any Necessary Authorization, indenture,
agreement or other instrument, to which the Borrower or any Restricted
Subsidiary is a party or by which they or their respective properties may be
bound, or (iv) result in or require the creation or imposition of any Lien upon
or with respect to any property now owned or hereafter acquired by the Borrower
or any Restricted Subsidiary, except Permitted Liens.
(d) Business. The Borrower and its Restricted Subsidiaries are engaged
solely in the communications and media broadcasting business, entertainment,
internet and activities related thereto (including, without limitation, radio
and television broadcasting, print, productions, billboards, power transmission
rentals and sales and real property rentals and sales, but only to the extent
that such real property rentals and sales arise from the lease or sale of
properties previously used by the Borrower or its Restricted Subsidiaries in the
communications and media broadcasting business).
(e) Licenses, etc. On the Closing Date, all Necessary Authorizations
have been duly authorized and obtained, and are in full force and effect, and
the Borrower and its Restricted Subsidiaries are in compliance in all material
respects with all provisions thereof. On the Closing Date, no Necessary
Authorization is the subject of any pending or, to the best of the Borrower's
knowledge, threatened challenge or revocation. After the Closing Date, all
Necessary Authorizations
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have been duly authorized and obtained, and are in full force and effect, and
the Borrower and its Restricted Subsidiaries are in compliance with all
provisions of such Necessary Authorizations, unless any such failure could not
reasonably be expected to have a Material Adverse Effect. After the Closing
Date, no Necessary Authorization is the subject of any pending or, to the best
of the Borrower's knowledge, threatened challenge or revocation, unless such
action could not reasonably be expected to have a Material Adverse Effect.
(f) Compliance with Law. The Borrower and its Restricted Subsidiaries
are in compliance with all Applicable Laws, the violation of which could
reasonably be expected to have a Material Adverse Effect. On the Closing Date,
the Borrower and its Restricted Subsidiaries have duly filed all reports,
statements and filings that are required to be filed by any of them under the
Communications Act, and are in compliance in all material respects therewith,
including without limitation the rules and regulations of the FCC relating to
the operation of television and radio stations. After the Closing Date, the
Borrower and its Restricted Subsidiaries have duly and timely filed all reports,
statements and filings that are required to be filed by any of them under the
Communications Act, and are in compliance therewith, including without
limitation the rules and regulations of the FCC relating to the operation of
television and radio stations, except to the extent failure to file or failure
to comply could not reasonably be expected to have a Material Adverse Effect. On
the Closing Date, the Borrower and its Restricted Subsidiaries have obtained all
appropriate approvals and consents of, and have made all filings with, the FCC
in connection with the acquisition and ownership of each of their television and
radio stations, and no Person has filed or submitted any document or instrument
to the FCC challenging or contesting the FCC order approving any assignment of a
FCC license to the Borrower or any of its Restricted Subsidiaries. After the
Closing Date, the Borrower and its Restricted Subsidiaries have obtained all
appropriate approvals and consents of, and have made all filings with, the FCC
in connection with the acquisition and ownership of each of their television and
radio stations, and no Person has filed or submitted any document or instrument
to the FCC challenging or contesting the FCC order approving any assignment of a
FCC license to the Borrower or any of its Restricted Subsidiaries, except to the
extent that any such action could not reasonably be expected to have a Material
Adverse Effect.
(g) Title to Properties. On the Closing Date, the Borrower and its
Restricted Subsidiaries have good and indefeasible title to, or a valid
leasehold interest in, all of their material assets, and none of their assets
are subject to any Liens, except Permitted Liens. After the Closing Date, the
Borrower and its Restricted Subsidiaries have good and indefeasible title to, or
a valid leasehold interest in, all of their material assets, and none of their
assets are subject to any Liens, except Permitted Liens, except to the extent
that any such circumstance could not reasonably be expected to have a Material
Adverse Effect. On the Closing Date, no financing statement or other Lien filing
(except relating to Permitted Liens) is on file in any state or jurisdiction
that names the Borrower or any of its Restricted Subsidiaries as debtor or
covers (or purports to cover) any assets of the Borrower or any of its
Restricted Subsidiaries. After the Closing Date, no financing statement or other
Lien filing (except relating to Permitted Liens) is on file in any state or
jurisdiction that names the Borrower or any of its Restricted Subsidiaries as
debtor or covers (or purports to cover) any assets of the Borrower or any of its
Restricted Subsidiaries, except to the extent that any such filing could not
reasonably be expected to have a Material Adverse Effect. The Borrower and its
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Restricted Subsidiaries have not signed any such financing statement or filing,
nor any security agreement authorizing any Person to file any such financing
statement or filing.
(h) Litigation. Except as reflected on Schedule 4.1(h) hereto, there is
no action, suit, investigation or proceeding pending against, or, to the best of
the Borrower's knowledge, threatened against the Borrower or any of its
Restricted Subsidiaries, or in any other manner relating directly and materially
adversely to the Borrower, any of its Restricted Subsidiaries, or any of their
material properties, including, but not limited to any litigation with respect
to these Loan Papers, in any court or before any arbitrator of any kind or
before or by any governmental body the result of which could reasonably be
expected to require the payment of money by the Borrower or any Restricted
Subsidiary in an amount of $5,000,000 or more in any one such action, suit or
proceeding or $25,000,000 or more in the aggregate for all such actions, suits
or proceedings.
(i) Taxes. All federal, state and other tax returns of the Borrower and
its Restricted Subsidiaries required by law to be filed have been duly filed and
all federal, state and other taxes, assessments and other governmental charges
or levies upon the Borrower, its Restricted Subsidiaries or any of their
properties, income, profits and assets, which are due and payable, have been
paid prior to delinquency, unless the same are being diligently contested in
good faith by appropriate proceedings, with adequate reserves established
therefor, and no Lien (other than a Permitted Lien) has attached and no
foreclosure, distraint, sale or similar proceedings have been commenced. The
charges, accruals and reserves on the books of the Borrower and its Restricted
Subsidiaries in respect of their taxes are, in the judgment of the Borrower,
adequate.
(j) Financial Statements; Material Liabilities. The Borrower has
furnished or caused to be furnished to the Lenders copies of its December 31,
1999, financial statements, which are prepared in good faith and complete in all
material respects and present fairly in accordance with GAAP the financial
position of the Borrower and its Restricted Subsidiaries as at such dates and
the results of operations for the periods then ended, subject to normal year-end
adjustments. On the Closing Date, the Borrower and its Restricted Subsidiaries
have no material liabilities, contingent or otherwise, nor material losses,
except as disclosed in writing to the Lenders prior to the Closing Date. After
the Closing Date, the Borrower and its Restricted Subsidiaries have no material
liabilities, contingent or otherwise, nor material losses, except to the extent
that such material liabilities or material losses could not reasonably be
expected to have a Material Adverse Effect.
(k) No Adverse Change. Since December 31, 1999, no event or
circumstances has occurred or arisen that could reasonably be expected to have a
Material Adverse Effect except as listed on Schedule 4.1(k) hereto.
(l) ERISA. None of the Borrower or its Controlled Group maintains or
contributes to any Plan other than those disclosed to the Administrative Agent
in writing from time to time. On the Closing Date, each such Plan is in
compliance in all material respects with the applicable provisions of ERISA, the
Code, and any other applicable Federal or state law, rule or regulation. After
the Closing Date, each such Plan is in compliance with the applicable provisions
of ERISA, the Code, and any other applicable Federal or state law, rule or
regulation, except to the extent any such noncompliance could not reasonably be
expected to have a Material Adverse Effect. With
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respect to each Plan of the Borrower and each member of its Controlled Group
(other than a Multiemployer Plan), all reports required under ERISA or any other
Applicable Law to be filed with any governmental authority, the failure of which
to file could reasonably result in liability of the Borrower or any member of
its Controlled Group in excess of $100,000, have been duly filed. All such
reports are true and correct in all material respects as of the date given. On
the Closing Date, no such Plan of the Borrower or any member of its Controlled
Group has been terminated nor has any accumulated funding deficiency (as defined
in Section 412(a) of the Code) been incurred (without regard to any waiver
granted under Section 412 of the Code), nor has any funding waiver from the
Internal Revenue Service been received or requested. After the Closing Date, no
such Plan of the Borrower or any member of its Controlled Group has been
terminated nor has any accumulated funding deficiency (as defined in Section
412(a) of the Code) been incurred (without regard to any waiver granted under
Section 412 of the Code), nor has any funding waiver from the Internal Revenue
Service been received or requested, except to the extent it could not reasonably
be expected to have a Material Adverse Effect. On the Closing Date, none of the
Borrower or any member of its Controlled Group has failed to make any
contribution or pay any amount due or owing as required by Section 412 of the
Code or Section 302 of ERISA or the terms of any such Plan prior to the due date
under Section 412 of the Code and Section 302 of ERISA. After the Closing Date,
none of the Borrower or any member of its Controlled Group has failed to make
any contribution or pay any amount due or owing as required by Section 412 of
the Code or Section 302 of ERISA or the terms of any such Plan prior to the due
date under Section 412 of the Code and Section 302 of ERISA, except to the
extent it could not reasonably be expected to have a Material Adverse Effect. On
the Closing Date, there has been no ERISA Event or any event requiring
disclosure under Section 4041(c)(3)(C), 4068(f), 4063(a) or 4043(b) of ERISA
with respect to any Plan or trust of the Borrower or any member of its
Controlled Group since the effective date of ERISA. After the Closing Date,
there has been no ERISA Event or any event requiring disclosure under Section
4041(c)(3)(C), 4068(f), 4063(a) or 4043(b) of ERISA with respect to any Plan or
trust of the Borrower or any member of its Controlled Group since the effective
date of ERISA, except to the extent that any such event could not reasonably be
expected to have a Material Adverse Effect. The value of the assets of each Plan
(other than a Multiemployer Plan) of the Borrower and each member of its
Controlled Group equaled or exceeded the present value of the benefit
liabilities, as defined in Title IV of ERISA, of each such Plan as of the most
recent valuation date using Plan actuarial assumptions at such date. On the
Closing Date, there are no pending or, to the best of the Borrower's knowledge,
threatened claims, lawsuits or actions (other than routine claims for benefits
in the ordinary course) asserted or instituted against, and neither the Borrower
nor any member of its Controlled Group has knowledge of any threatened
litigation or claims against, (i) the assets of any Plan or trust or against any
fiduciary of a Plan with respect to the operation of such Plan, or (ii) the
assets of any employee welfare benefit plan within the meaning of Section 3(1)
of ERISA, or against any fiduciary thereof with respect to the operation of any
such plan. After the Closing Date, there are no pending or, to the best of the
Borrower's knowledge, threatened claims, lawsuits or actions (other than routine
claims for benefits in the ordinary course) asserted or instituted against, and
neither the Borrower nor any member of its Controlled Group has knowledge of any
threatened litigation or claims against, (i) the assets of any Plan or trust or
against any fiduciary of a Plan with respect to the operation of such Plan, or
(ii) the assets of any employee welfare benefit plan within the meaning of
Section 3(1) of ERISA, or against any fiduciary thereof with respect to the
operation of any such plan, except to the extent such claim, lawsuit or action
could not reasonably be expected to have a Material Adverse Effect. On the
Closing Date, none of the Borrower or any member of
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its Controlled Group has engaged in any prohibited transactions, within the
meaning of Section 406 of ERISA or Section 4975 of the Code, in connection with
any Plan, and none of the Borrower or any member of its Controlled Group has
withdrawn from any Multiemployer Plan, nor has incurred or reasonably expects to
incur (A) any liability under Title IV of ERISA (other than premiums due under
Section 4007 of ERISA to the PBGC), (B) any withdrawal liability (and no event
has occurred which with the giving of notice under Section 4219 of ERISA would
result in such liability) under Section 4201 of ERISA as a result of a complete
or partial withdrawal (within the meaning of Section 4203 or 4205 of ERISA) from
a Multiemployer Plan, or (C) any liability under Section 4062 of ERISA to the
PBGC or to a trustee appointed under Section 4042 of ERISA. After the Closing
Date, none of the Borrower or any member of its Controlled Group has engaged in
any prohibited transactions, within the meaning of Section 406 of ERISA or
Section 4975 of the Code, in connection with any Plan, and none of the Borrower
or any member of its Controlled Group has withdrawn from any Multiemployer Plan,
nor has incurred or reasonably expects to incur (A) any liability under Title IV
of ERISA (other than premiums due under Section 4007 of ERISA to the PBGC), (B)
any withdrawal liability (and no event has occurred which with the giving of
notice under Section 4219 of ERISA would result in such liability) under Section
4201 of ERISA as a result of a complete or partial withdrawal (within the
meaning of Section 4203 or 4205 of ERISA) from a Multiemployer Plan, or (C) any
liability under Section 4062 of ERISA to the PBGC or to a trustee appointed
under Section 4042 of ERISA, except to the extent it could not reasonably be
expected to have a Material Adverse Effect. On the Closing Date, none of the
Borrower, any member of its Controlled Group, or any organization to which the
Borrower or any member of its Controlled Group is a successor or parent
corporation within the meaning of ERISA Section 4069(b), has engaged in a
transaction within the meaning of ERISA Section 4069 and none of the Borrower or
any member of its Controlled Group maintains or has established any welfare
benefit plan within the meaning of Section 3(1) of ERISA which provides for
continuing benefits or coverage for any participant or any beneficiary of any
participant after such participant's termination of employment except as may be
required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended ("COBRA") and the regulations thereunder, and at the expense of the
participant or the beneficiary of the participant, or retiree medical
liabilities. After the Closing Date, none of the Borrower, any member of its
Controlled Group, or any organization to which the Borrower or any member of its
Controlled Group is a successor or parent corporation within the meaning of
ERISA Section 4069(b), has engaged in a transaction within the meaning of ERISA
Section 4069 and none of the Borrower or any member of its Controlled Group
maintains or has established any welfare benefit plan within the meaning of
Section 3(1) of ERISA which provides for continuing benefits or coverage for any
participant or any beneficiary of any participant after such participant's
termination of employment except as may be required by the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended ("COBRA") and the regulations
thereunder, and at the expense of the participant or the beneficiary of the
participant, or retiree medical liabilities, except to the extent it could not
reasonably be expected to have a Material Adverse Effect. On the Closing Date,
each of the Borrower and its Controlled Group which maintains a welfare benefit
plan within the meaning of Section 3(1) of ERISA has complied in all material
respects with any applicable notice and continuation requirements of COBRA and
the regulations thereunder. After the Closing Date, each of the Borrower and its
Controlled Group which maintains a welfare benefit plan within the meaning of
Section 3(1) of ERISA has complied with any applicable notice and continuation
requirements of COBRA and the regulations thereunder, except to the extent that
such failure could not reasonably be expected to have a Material Adverse Effect.
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(m) Compliance with Regulations T, U and X. The Borrower is not 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 within the
meaning of Regulations T, U and X of the Board of Governors of the Federal
Reserve System, and no part of the proceeds of the Advances or the Letters of
Credit will be used to purchase or carry any margin stock or to extend credit to
others for the purpose of purchasing or carrying any margin stock. No assets of
the Borrower and its Restricted Subsidiaries are margin stock. None of the
Borrower and its Restricted Subsidiaries, nor any agent acting on their behalf,
have taken or will knowingly take any action which might cause this Agreement or
any Loan Papers to violate any regulation of the Board of Governors of the
Federal Reserve System or to violate the Securities Exchange Act of 1934, in
each case as in effect now or as the same may hereafter be in effect.
(n) Absence of Default. The Borrower and its Restricted Subsidiaries
are in compliance in all material respects with all of the provisions of their
articles of incorporation and by-laws, and no event has occurred or failed to
occur, which has not been remedied or waived, the occurrence or non-occurrence
of which constitutes, or which with the passage of time or giving of notice or
both would constitute, (i) an Event of Default or (ii) a default by the Borrower
or any of its Restricted Subsidiaries under any material indenture, agreement or
other instrument, or any judgment, decree or order to which the Borrower or any
of its Restricted Subsidiaries is a party or by which they or any of their
material properties is bound.
(o) Investment Company Act. The Borrower is not required to register
under the provisions of the Investment Company Act of 1940, as amended. Neither
the entering into or performance by the Borrower of this Agreement nor the
issuance of the notes violates any provision of such act or requires any
consent, approval, or authorization of, or registration with, the Securities and
Exchange Commission or any other governmental or public body or authority
pursuant to any provisions of such act.
(p) Environmental Matters. On the Closing Date, neither the Borrower
nor any Subsidiary has any actual knowledge or reason to believe that any
substance deemed hazardous by any Applicable Environmental Law, has been
installed on any real property now owned by the Borrower or any of its
Subsidiaries. After the Closing Date, neither the Borrower nor any Subsidiary
has any actual knowledge or reason to believe that any substance deemed
hazardous by any Applicable Environmental Law, has been installed on any real
property now owned by the Borrower or any of its Subsidiaries, except to the
extent the existence of such substances could not reasonably be expected to have
a Material Adverse Effect. On the Closing Date, the Borrower and its
Subsidiaries are not in violation of or subject to any existing, pending or, to
the best of the Borrower's knowledge, threatened investigation or inquiry by any
governmental authority or to any material remedial obligations under any
Applicable Environmental Laws, and this representation and warranty would
continue to be true and correct following disclosure to the applicable
governmental authorities of all relevant facts, conditions and circumstances, if
any, pertaining to any real property of the Borrower and its Subsidiaries. After
the Closing Date, the Borrower and its Subsidiaries are not in violation of or
subject to any existing, pending or, to the best of the Borrower's knowledge,
threatened investigation or inquiry by any governmental authority or to any
remedial obligations under any Applicable Environmental Laws, and this
representation and warranty would continue to
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be true and correct following disclosure to the applicable governmental
authorities of all relevant facts, conditions and circumstances, if any,
pertaining to any real property of the Borrower and its Subsidiaries, except to
the extent that such violation, investigation or inquiry could not reasonably be
expected to have a Material Adverse Effect. On the Closing Date, the Borrower
and its Subsidiaries undertook, at the time of acquisition of any real property,
reasonable inquiry into the previous ownership and uses of such real property
consistent with good commercial or customary practice, and the Borrower and its
Subsidiaries have taken all reasonable steps to determine, and the Borrower and
its Subsidiaries have no actual knowledge or reason to believe, after reasonable
investigation, that any hazardous substances or solid wastes have been disposed
of or otherwise released on or to the real property of the Borrower or any of
its Subsidiaries in any manner or quantities which would be deemed a violation
of the Applicable Environmental Laws. After the Closing Date, the Borrower and
its Subsidiaries undertook, at the time of acquisition of any real property,
reasonable inquiry into the previous ownership and uses of such real property
consistent with good commercial or customary practice, and the Borrower and its
Subsidiaries have taken all reasonable steps to determine, and the Borrower and
its Subsidiaries have no actual knowledge or reason to believe, after reasonable
investigation, that any hazardous substances or solid wastes have been disposed
of or otherwise released on or to the real property of the Borrower or any of
its Subsidiaries in any manner or quantities which would be deemed a violation
of the Applicable Environmental Laws, except to the extent such hazardous
substances or solid wastes could not reasonably be expected to have a Material
Adverse Effect.
(q) Valid Issuance of Securities. All Capital Stock of the Borrower and
its Subsidiaries has been duly authorized and validly issued, and is fully paid
and nonassessable. The Capital Stock of the Borrower and its Subsidiaries, when
issued or sold, was either (i) registered or qualified under applicable federal
or state securities laws, or (ii) exempt therefrom.
(r) Certain Fees. No broker's, finder's or other fee or commission will
be payable by the Borrower (other than to the Lenders hereunder) with respect to
the making of the Commitment or the Advances hereunder or the issuance of any
Letters of Credit. The Borrower agrees to indemnify and hold harmless the
Administrative Agent and each Lender from and against any claims, demand,
liability, proceedings, costs or expenses asserted with respect to or arising in
connection with any such fees or commissions.
(s) Compliance. No event has occurred which permits (or with the
passage of time would permit) the revocation or termination of any license,
consents, permits and authorizations, or which could result in the imposition of
any restriction thereon, in each case except any that could not reasonably be
expected to have a Material Adverse Effect.
(t) Patents, Etc. The Borrower and its Restricted Subsidiaries have
obtained all patents, trademarks, service-marks, trade names, copyrights,
licenses and other rights, free from burdensome restrictions, that are necessary
for the operation of their business as presently conducted and as proposed to be
conducted, the loss of which could reasonably be expected to have a Material
Adverse Effect. Nothing has come to the attention of the Borrower or any of its
Restricted Subsidiaries to the effect that (i) any process, method, part or
other material presently contemplated to be employed by the Borrower or any
Restricted Subsidiary may infringe any patent, trademark, service-▇▇▇▇, trade
name, copyright, license or other right owned by any other Person, or (ii) there
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is pending or overtly threatened any claim or litigation against or affecting
the Borrower or any Restricted Subsidiary contesting its right to sell or use
any such process, method, part or other material, except such circumstances that
could not reasonably be expected to have a Material Adverse Effect.
(u) Disclosure. Neither this Agreement nor any other document,
certificate or statement which has been furnished to any Lender by or on behalf
of the Borrower or any Restricted Subsidiary in connection herewith contained
any untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statement contained herein and therein not
misleading at the time it was furnished. There is no fact known to the Borrower
and not known to the public generally that could reasonably be expected to
materially adversely affect the assets or business of the Borrower and its
Restricted Subsidiaries, or in the future could reasonably be expected (so far
as the Borrower can now foresee) to have a Material Adverse Effect, which has
not been set forth in this Agreement or in the documents, certificates and
statements furnished to the Lenders by or on behalf of the Borrower prior to the
date hereof in connection with the transaction contemplated hereby.
(v) Year 2000 Compliance. The Year 2000 Problem has not had, and the
Borrower reasonably believes that the Year 2000 Problem will not have, a
Material Adverse Effect.
(w) Qualified Commercial Loan Representations.
(i) The Borrower has been advised by the Administrative Agent
and the Lenders to seek the advice of an attorney and accountant of the
Borrower's choice in connection with this Agreement and the Loan
Papers.
(ii) The Borrower has had the opportunity to seek the advice
of an attorney and an accountant of the Borrower's choice in connection
with this Agreement and the Loan Papers.
(iii) This Agreement and the Loan Papers have not been nor
will be made for the purpose of financing a business licensed by the
Motor Vehicle Board of the Texas Department of Transportation under
Section 4.01(a), Texas Motor Vehicle Commission Code (Article 4413(36),
Texas Civil Statutes).
(iv) This Agreement and the Loan Papers evidence a "qualified
commercial loan" as that term is defined in Section 306.001 of the
Texas Finance Code, as amended.
Section 4.2 Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement and the other Loan
Papers shall be deemed to be made at and as of the Closing Date and at and as of
the date of each Advance and each Letter of Credit (except with respect to
Refinancing Advances of Revolver Advances), and each shall be true and correct
when made, except to the extent (a) previously fulfilled in accordance with the
terms hereof, (b) applicable to a specific date or otherwise subsequently
inapplicable, or (c) previously waived in writing by the Determining Lenders
with respect to any particular factual circumstance. All such representations
and warranties shall survive, and not be waived by, the execution hereof by any
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Lender, any investigation or inquiry by any Lender, or by the making of any
Advance under this Agreement.
ARTICLE 5
General Covenants
So long as any of the Obligations are outstanding and unpaid or any
Commitment is outstanding (whether or not the conditions to borrowing have been
or can be fulfilled):
Section 5.1 Preservation of Existence and Similar Matters. Except as
provided in Section 7.5, the Borrower shall, and shall cause each Restricted
Subsidiary to:
(a) preserve and maintain, or timely obtain and thereafter preserve and
maintain, its existence, rights, franchises, licenses, authorizations, consents,
privileges and all other Necessary Authorizations from federal, state and local
governmental bodies and any tribunal (regulatory or otherwise), the loss of
which could have a Material Adverse Effect; and
(b) qualify and remain qualified and authorized to do business in each
jurisdiction in which the character of its properties or the nature of its
business requires such qualification or authorization, unless the failure to do
so could not have a Material Adverse Effect.
Section 5.2 Business; Compliance with Applicable Law. The Borrower and
its Restricted Subsidiaries shall (a) engage substantially in the media and
communication related business and activities related thereto and the
entertainment and internet businesses and activities related thereto, and (b)
comply in all material respects with the requirements of all Applicable Law, the
failure of which could reasonably be expected to have a Material Adverse Effect.
Section 5.3 Maintenance of Properties. The Borrower shall, and shall
cause each Restricted Subsidiary to, maintain or cause to be maintained all its
properties (whether owned or held under lease) in reasonably good repair,
working order and condition, taken as a whole, and from time to time make or
cause to be made all appropriate repairs, renewals, replacements, additions,
betterments and improvements thereto.
Section 5.4 Accounting Methods and Financial Records. The Borrower
shall, and shall cause each Restricted Subsidiary to, maintain a system of
accounting established and administered in accordance with GAAP, keep adequate
records and books of account in which complete entries will be made and all
transactions reflected in accordance with GAAP, and keep accurate and complete
records of its respective assets. The Borrower and each of its Restricted
Subsidiaries shall maintain a fiscal year ending on December 31.
Section 5.5 Insurance. The Borrower shall, and shall cause each
Restricted Subsidiary or its direct parent to, maintain insurance from
responsible companies in such amounts and against such risks as shall be
customary and usual in the industry for companies of similar size and
capability, but in no event less than the amount and types insured as of the
Closing Date. Each insurance policy shall provide for at least 30 days' prior
notice to the Administrative Agent of any
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proposed termination or cancellation of such policy, whether on account of
default or otherwise, the loss of which could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 5.6 Payment of Taxes and Claims. The Borrower shall, and shall
cause each Restricted Subsidiary to, pay and discharge all taxes, assessments
and governmental charges or levies imposed upon it or its income or properties
prior to the date on which penalties attach thereto, and all lawful material
claims for labor, materials and supplies which, if unpaid, might become a Lien
upon any of its properties; except that no such tax, assessment, charge, levy or
claim need be paid which is being diligently contested in good faith by
appropriate proceedings and for which adequate reserves shall have been set
aside on the appropriate books, but only so long as no Lien (other than a
Permitted Lien) shall attach with respect thereto and no foreclosure, distraint,
sale or similar proceedings shall have been commenced. The Borrower shall, and
shall cause each Restricted Subsidiary to, timely file all information returns
required by federal, state or local tax authorities.
Section 5.7 Visits and Inspections. The Borrower shall, and shall cause
each Restricted Subsidiary to, promptly permit representatives of the
Administrative Agent or any Lender from time to time to (a) visit and inspect
the properties of the Borrower and Restricted Subsidiary as often as the
Administrative Agent or any Lender shall deem advisable, (b) inspect and make
extracts from and copies of the Borrower's and each Restricted Subsidiary's
books and records, and (c) discuss with the Borrower's and each Restricted
Subsidiary's directors, officers, employees and auditors its business, assets,
liabilities, financial positions, results of operations and business prospects.
Section 5.8 Payment of Debt for Borrowed Money. Subject to Section 5.6
hereof, the Borrower shall, and shall cause each Restricted Subsidiary to, pay
its Debt for Borrowed Money when and as the same becomes due, other than amounts
(other than the Obligations) duly and diligently disputed in good faith.
Section 5.9 Use of Proceeds. The Borrower shall use the proceeds of
Advances and Letters of Credit to make acquisitions permitted under Section 7.5
hereof, to make Capital Expenditures, to make Investments (including advances to
Subsidiaries) and Acquisitions permitted hereunder, for working capital and for
other general corporate purposes.
SECTION 5.10 INDEMNITY.
(a) THE BORROWER AGREES TO DEFEND, PROTECT, INDEMNIFY AND HOLD HARMLESS
THE ADMINISTRATIVE AGENT, THE ISSUING BANK, EACH LENDER, EACH OF THEIR
RESPECTIVE AFFILIATES, AND EACH OF THEIR RESPECTIVE (INCLUDING SUCH AFFILIATES')
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, SHAREHOLDERS AND CONSULTANTS
(INCLUDING, WITHOUT LIMITATION, THOSE RETAINED IN CONNECTION WITH THE
SATISFACTION OR ATTEMPTED SATISFACTION OF ANY OF THE CONDITIONS SET FORTH
HEREIN) OF EACH OF THE FOREGOING (COLLECTIVELY, "INDEMNITEES") FROM AND AGAINST
ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, CLAIMS, COSTS, EXPENSES AND DISBURSEMENTS OF ANY KIND OR
NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES AND
DISBURSEMENTS OF A SINGLE COUNSEL AND ANY LOCAL OR REGULATORY COUNSEL FOR SUCH
INDEMNITEES (OR MORE THAN A SINGLE COUNSEL IF THERE IS A CONFLICT BETWEEN
INDEMNITEES
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THAT WOULD MAKE SUCH SEPARATE REPRESENTATION ADVISABLE) IN CONNECTION WITH ANY
INVESTIGATIVE, ADMINISTRATIVE OR JUDICIAL PROCEEDING, WHETHER OR NOT SUCH
INDEMNITEES SHALL BE DESIGNATED A PARTY THERETO), IMPOSED ON, INCURRED BY, OR
ASSERTED AGAINST SUCH INDEMNITEES (WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL AND
WHETHER BASED ON ANY FEDERAL, STATE, OR LOCAL LAWS AND REGULATIONS, UNDER COMMON
LAW OR AT EQUITABLE CAUSE, OR ON CONTRACT, TORT OR OTHERWISE, ARISING FROM OR
CONNECTED WITH THE PAST, PRESENT OR FUTURE OPERATIONS OF THE BORROWER OR ANY OF
ITS SUBSIDIARIES OR THEIR RESPECTIVE PREDECESSORS IN INTEREST, OR THE PAST,
PRESENT OR FUTURE ENVIRONMENTAL CONDITION OF PROPERTY OF THE BORROWER OR ANY OF
ITS SUBSIDIARIES), IN ANY MANNER RELATING TO OR ARISING OUT OF THIS AGREEMENT,
THE LOAN PAPERS, OR ANY ACT, EVENT OR TRANSACTION OR ALLEGED ACT, EVENT OR
TRANSACTION RELATING OR ATTENDANT THERETO, THE MAKING OF OR ANY PARTICIPATIONS
IN THE ADVANCES OR THE LETTERS OF CREDIT AND THE MANAGEMENT OF THE ADVANCES AND
THE LETTERS OF CREDIT, INCLUDING IN CONNECTION WITH, OR AS A RESULT, IN WHOLE OR
IN PART, OF ANY ORDINARY OR MERE NEGLIGENCE OF ADMINISTRATIVE AGENT, THE ISSUING
BANK OR ANY LENDER (OTHER THAN THOSE MATTERS RAISED EXCLUSIVELY BY A PARTICIPANT
AGAINST THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR ANY LENDER AND NOT THE
BORROWER), OR THE USE OR INTENDED USE OF THE PROCEEDS OF THE ADVANCES AND THE
LETTERS OF CREDIT HEREUNDER, OR IN CONNECTION WITH ANY INVESTIGATION OF ANY
POTENTIAL MATTER COVERED HEREBY, BUT EXCLUDING (i) ANY CLAIM OR LIABILITY THAT
ARISES AS THE RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY
INDEMNITEE, AS FINALLY JUDICIALLY DETERMINED BY A COURT OF COMPETENT
JURISDICTION, (ii) MATTERS RAISED BY ONE LENDER AGAINST ANOTHER LENDER OR BY ANY
SHAREHOLDERS OF A LENDER AGAINST A LENDER OR ITS MANAGEMENT AND (iii) CLAIMS FOR
PUNITIVE OR CONSEQUENTIAL DAMAGES (COLLECTIVELY, "INDEMNIFIED MATTERS");
PROVIDED HOWEVER, THAT SO LONG AS NO EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE
CONTINUING, THERE SHALL BE NO SETTLEMENT BY THE INDEMNITEES OR ANY OF THEM WITH
RESPECT TO ANY INDEMNIFIED MATTER WITHOUT PRIOR CONSULTATION WITH THE BORROWER.
(b) IN ADDITION, THE BORROWER SHALL PERIODICALLY, UPON REQUEST,
REIMBURSE EACH INDEMNITEE FOR ITS REASONABLE LEGAL AND OTHER ACTUAL EXPENSES
(INCLUDING THE COST OF ANY INVESTIGATION AND PREPARATION) INCURRED IN CONNECTION
WITH ANY INDEMNIFIED MATTER. IF FOR ANY REASON THE FOREGOING INDEMNIFICATION IS
UNAVAILABLE TO ANY INDEMNITEE OR INSUFFICIENT TO HOLD ANY INDEMNITEE HARMLESS
WITH RESPECT TO INDEMNIFIED MATTERS, THEN THE BORROWER SHALL CONTRIBUTE TO THE
AMOUNT PAID OR PAYABLE BY SUCH INDEMNITEE AS A RESULT OF SUCH LOSS, CLAIM,
DAMAGE OR LIABILITY IN SUCH PROPORTION AS IS APPROPRIATE TO REFLECT NOT ONLY THE
RELATIVE BENEFITS RECEIVED BY THE BORROWER AND THE BORROWER'S STOCKHOLDERS ON
THE ONE HAND AND SUCH INDEMNITEE ON THE OTHER HAND BUT ALSO THE RELATIVE FAULT
OF THE BORROWER AND SUCH INDEMNITEE, AS WELL AS ANY OTHER RELEVANT EQUITABLE
CONSIDERATIONS. THE REIMBURSEMENT, INDEMNITY AND CONTRIBUTION OBLIGATIONS UNDER
THIS SECTION SHALL BE IN ADDITION TO ANY LIABILITY WHICH THE BORROWER MAY
OTHERWISE HAVE, SHALL EXTEND UPON THE SAME TERMS AND CONDITIONS TO EACH
INDEMNITEE, AND SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF ANY
SUCCESSORS, ASSIGNS, HEIRS AND PERSONAL REPRESENTATIVES OF THE BORROWER, THE
ADMINISTRATIVE AGENT, THE ISSUING BANK, THE LENDERS AND ALL OTHER INDEMNITEES.
THIS SECTION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT AND PAYMENT OF THE
OBLIGATIONS.
Section 5.11 Environmental Law Compliance. The use which the Borrower
or any Subsidiary intends to make of any real property owned by it will not
result in the disposal or other release of any hazardous substance or solid
waste on or to such real property in any manner or quantities which would be
deemed a violation of the Applicable Environmental Laws. The Borrower
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further agrees to exercise reasonable due diligence in the acquisition of real
property in connection with compliance with Applicable Environmental Laws. As
used herein, the terms "hazardous substance" and "release" as used in this
Section shall have the meanings specified in CERCLA (as defined in the
definition of Applicable Environmental Laws), and the terms "solid waste" and
"disposal" shall have the meanings specified in RCRA (as defined in the
definition of Applicable Environmental Laws); provided, however, that if CERCLA
or RCRA is amended so as to broaden the meaning of any term defined thereby,
such broader meaning shall apply subsequent to the effective date of such
amendment; and provided further, to the extent that any other law applicable to
the Borrower, any Subsidiary or any of their properties establishes a meaning
for "hazardous substance," "release," "solid waste," or "disposal" which is
broader than that specified in either CERCLA or RCRA, such broader meaning shall
apply. THE BORROWER AGREES TO INDEMNIFY AND HOLD THE ADMINISTRATIVE AGENT, THE
ISSUING BANK AND EACH LENDER HARMLESS FROM AND AGAINST, AND TO REIMBURSE THEM
WITH RESPECT TO, ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, LOSS, DAMAGE,
LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES AND COURTS COSTS) OF
ANY KIND OR CHARACTER, KNOWN OR UNKNOWN, FIXED OR CONTINGENT, ASSERTED AGAINST
OR INCURRED BY ANY OF THEM AT ANY TIME AND FROM TIME TO TIME BY REASON OF OR
ARISING OUT OF (a) THE FAILURE OF THE BORROWER OR ANY SUBSIDIARY TO PERFORM ANY
OBLIGATION HEREUNDER REGARDING ASBESTOS OR APPLICABLE ENVIRONMENTAL LAWS, (b)
ANY VIOLATION ON OR BEFORE THE RELEASE DATE OF ANY APPLICABLE ENVIRONMENTAL LAW
IN EFFECT ON OR BEFORE THE RELEASE DATE, AND (c) ANY ACT, OMISSION, EVENT OR
CIRCUMSTANCE EXISTING OR OCCURRING ON OR PRIOR TO THE RELEASE DATE (INCLUDING
WITHOUT LIMITATION THE PRESENCE ON SUCH REAL PROPERTY OR RELEASE FROM SUCH REAL
PROPERTY OF HAZARDOUS SUBSTANCES OR SOLID WASTES DISPOSED OF OR OTHERWISE
RELEASED ON OR PRIOR TO THE RELEASE DATE), RESULTING FROM OR IN CONNECTION WITH
THE OWNERSHIP OF THE REAL PROPERTY, REGARDLESS OF WHETHER THE ACT, OMISSION,
EVENT OR CIRCUMSTANCE CONSTITUTED A VIOLATION OF ANY APPLICABLE ENVIRONMENTAL
LAW AT THE TIME OF ITS EXISTENCE OR OCCURRENCE, OR WHETHER THE ACT, OMISSION,
EVENT OR CIRCUMSTANCE IS CAUSED BY OR RELATES TO THE NEGLIGENCE OF ANY
INDEMNIFIED PERSON; PROVIDED THAT, THE BORROWER SHALL NOT BE UNDER ANY
OBLIGATION TO INDEMNIFY THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR ANY LENDER
TO THE EXTENT THAT ANY SUCH LIABILITY ARISES AS THE RESULT OF THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH PERSON, AS FINALLY JUDICIALLY
DETERMINED BY A COURT OF COMPETENT JURISDICTION. THE PROVISIONS OF THIS
PARAGRAPH SHALL SURVIVE THE RELEASE DATE AND SHALL CONTINUE THEREAFTER IN FULL
FORCE AND EFFECT.
Section 5.12 Conversion of Unrestricted Subsidiaries.
(a) Provided there shall exist no Default or Event of Default both
prior to and after giving effect to the conversion of any Restricted Subsidiary
to an Unrestricted Subsidiary, the Borrower may, in the Borrower's sole
discretion and upon 30 days' written notice to the Lenders, cause any Restricted
Subsidiary to become an Unrestricted Subsidiary.
(b) Provided there shall exist no Default or Event of Default both
prior to and after giving effect to the conversion of any Unrestricted
Subsidiary to a Restricted Subsidiary, Borrower may, in the Borrower's sole
discretion and upon 30 days' written notice to the Lenders, cause any
Unrestricted Subsidiary to become a Restricted Subsidiary; provided, that such
Subsidiaries otherwise meet the requirements contained in this Agreement for
such designation including but not limited to the definition of Subsidiary.
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Section 5.13 Year 2000 Compliance. The Borrower will promptly notify
the Administrative Agent in the event the Borrower discovers or determines that
any computer application (including those of its suppliers and vendors) that is
material to its or any of its Subsidiaries' business and operations will not be
Year 2000 Compliant on a timely basis, except to the extent that such failure
could not be reasonably expected to have a Material Adverse Effect.
Section 5.14 AMFM Entities and SFX Entities. After the acquisition of
AMFM and SFX by the Borrower, respectively, and until their respective
Collateral Release Date, no Investment may be made by the Borrower or any
Restricted Subsidiary (other than (i) Investments made with Capital Stock of the
Borrower and (ii) any Investments made by any AMFM Entity or SFX Entity) in any
AMFM Entity or any SFX Entity, except Investments from time to time in an
AMFM/SFX Obligor made pursuant to Intercompany Notes executed by such AMFM/SFX
Obligors. The Borrower agrees to, and shall cause each Restricted Subsidiary to,
until the respective Collateral Release Dates, pledge such Intercompany Notes to
the Administrative Agent on behalf of the Lenders to secure the Obligations
pursuant to documentation substantially in the form of Exhibit G hereto, and
deliver each such Intercompany Note endorsed by Borrower or such Restricted
Subsidiary and payable to the Administrative Agent on behalf of itself and the
Lenders, but in no event shall the Borrower or any Restricted Subsidiary be
obligated to pledge Intercompany Notes evidencing outstanding amounts in the
aggregate in excess of the Maximum Pledged Intercompany Note Amount (as such
Maximum Pledged Intercompany Note Amount changes quarterly). The Borrower
covenants and agrees that promptly upon any change in the Maximum Pledged
Intercompany Note Amount that increases such amount, the Borrower will, and will
cause its Restricted Subsidiaries to, immediately pledge an additional amount of
Intercompany Notes (up to the Maximum Pledged Intercompany Note Amount) to the
Administrative Agent on behalf of the Lenders, and deliver each such
Intercompany Note endorsed by the Borrower or such Restricted Subsidiary to be
payable to the Administrative Agent. Upon any change in the Maximum Pledged
Intercompany Note Amount that decreases such amount, if the Borrower has Pledged
Intercompany Notes in an aggregate principal face amount in excess of the
Maximum Pledged Intercompany Note Amount, the Lenders agree to release the
pledge and Lien on the amount of such Pledged Intercompany Notes in excess of
the Maximum Pledged Intercompany Note Amount. The Lenders hereby authorize
Administrative Agent to take all such action to release such Pledged
Intercompany Notes, including, without limitation, releasing Pledged
Intercompany Notes in excess of such amount and receiving new Pledged
Intercompany Notes in different amounts.
The Borrower further agrees, and shall cause each AMFM/SFX Obligor
receiving any Investment from the Borrower or any other Restricted Subsidiary
(other than any AMFM Entity or SFX Entity) after the AMFM Acquisition and the
SFX Acquisition, respectively, and until their respective Collateral Release
Dates, to, execute a Limited Subsidiary Guaranty of the Obligations pursuant to
documentation substantially in the form of Exhibit C hereto, but in no event
shall the Borrower or any Restricted Subsidiary be obligated to guaranty an
amount in excess of the Limited Subsidiary Guaranty Amount. Upon such date that
(i) is after January 1, 2001 and (ii) all Intercompany Notes are pledged and
delivered to the Administrative Agent on behalf of the Lenders to secure the
Obligations, the Administrative Agent shall, on behalf of the Lenders, release,
cancel and terminate each Limited Subsidiary Guaranty. On each Collateral
Release Date, the Administrative Agent shall, on behalf of the Lenders, execute
all documentation reasonably necessary to release, cancel and terminate each
Lien on and pledge of each Intercompany Note
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executed by any AMFM Entity or any SFX Entity, as applicable, and return each
such Intercompany Note to the Borrower, and release, cancel and terminate each
Limited Subsidiary Guaranty executed by any AMFM Entity or any SFX Entity, as
applicable. Each Lender specifically acknowledges that all Pledged Intercompany
Notes may be released, canceled and terminated (and the Administrative Agent is
hereby authorized to take any action reasonably necessary to effectuate such
release, cancellation and termination) at the earlier of (a) consent thereto by
the Determining Lenders and (b) (i) with respect to Pledged Intercompany Notes
executed by any AMFM Entity, the Collateral Release Date for the AMFM Entities,
and (ii) with respect to Pledged Intercompany Notes executed by any SFX Entity,
the Collateral Release Date for the SFX Entities. Each Lender additionally
specifically acknowledges that each Limited Subsidiary Guaranty may be released,
canceled and terminated (and the Administrative Agent is hereby authorized to
take any action reasonably necessary to effectuate such release, cancellation
and termination) at the earlier of (a) consent thereto by the Determining
Lenders, (b) (i) with respect to Limited Subsidiary Guaranties executed by any
AMFM Entity, the Collateral Release Date for the AMFM Entities, and (ii) with
respect to Limited Subsidiary Guaranties executed by any SFX Entity, the
Collateral Release Date for the SFX Entities and (c) such date as all
Intercompany Notes executed by any AMFM Entity and any SFX Entity are pledged
and delivered to the Administrative Agent on behalf of Lenders to secure the
Obligations.
Section 5.15 Collateral Sharing and Intercreditor Arrangement. Each
Lender specifically acknowledges that each Limited Subsidiary Guaranty and the
Pledged Intercompany Notes will also secure and guaranty on a pari passu basis
the $3B Credit Facility. "Pari passu" basis for the purpose of this Section 5.15
means based on relative outstanding amounts under this Agreement and the Loan
Papers and the $3B Credit Facility, on the earlier of the date of demand (if
any) against the Borrower under this Agreement or the guarantors under the
Limited Subsidiary Guaranties. Notwithstanding the foregoing, the Borrower also
acknowledges and agrees that the collateral and guaranty sharing among the
Lenders and the lenders under the $3B Credit Facility is an issue among those
parties only and the Pledged Intercompany Notes and the Limited Subsidiary
Guaranties in their respective amounts may be exercised in full by the
Administrative Agent on behalf of the Lenders and/or on behalf of the lenders
under the $3B Credit Facility, but in each case shall be subject to an
intercreditor agreement among such lenders as to the division of the proceeds.
Each Lender specifically authorizes the Administrative Agent to enter into an
intercreditor agreement with the lenders or their agent under the $3B Credit
Facility to share such Pledged Intercompany Notes and Limited Subsidiary
Guaranties, such intercreditor agreement to be on a pari passu basis and
pursuant to other terms acceptable to the Administrative Agent. The Borrower and
each Lender further acknowledges that any changes to any term or provision to
such intercreditor agreement (including the pari passu basis of division or any
termination or release of such intercreditor agreement) may be executed by the
Administrative Agent and become effective upon the written consent of the
Determining Lenders, and shall not require the consent of the Borrower. The
Borrower and each Lender further authorize the Administrative Agent to take any
action reasonably necessary to effectuate the intent of this Section 5.15.
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ARTICLE 6
Information Covenants
So long as any of the Obligations are outstanding and unpaid or any
Commitment is outstanding (whether or not the conditions to borrowing have been
or can be fulfilled), the Borrower shall furnish or cause to be furnished to the
Administrative Agent:
Section 6.1 Quarterly Financial Statements and Information. Within 45
days after the end of each fiscal quarter, consolidated and consolidating
balance sheets of the Borrower and its Subsidiaries as at the end of such
quarter and the related consolidated and consolidating statements of income and
consolidated statements of changes in cash flow for such quarter and for the
elapsed portion of the year ended with the last day of such quarter, all of
which shall be certified by the president or chief financial officer of the
Borrower, to be, in his or her opinion, complete in all material respects and to
present fairly, in accordance with GAAP, the financial position and results of
operations of the Borrower and its Subsidiaries as at the end of and for such
period, and for the elapsed portion of the year ended with the last day of such
period, subject only to normal year-end adjustments.
Section 6.2 Annual Financial Statements and Information; Certificate of
No Default.
(a) Within 90 days after the end of each fiscal year, a copy of (i) the
consolidated balance sheet of the Borrower and its Subsidiaries, as of the end
of the current and prior fiscal years and (ii) consolidated statements of
earnings, statements of changes in shareholders' equity, and statements of
changes in cash flow as of and through the end of such fiscal year, all of which
are prepared in accordance with GAAP, and certified by independent certified
public accountants acceptable to the Lenders, whose opinion shall be in scope
and substance in accordance with generally accepted auditing standards and shall
be unqualified.
(b) Simultaneously with the delivery of the statements required by this
Section 6.2, a letter from the Borrower's public accountants certifying that no
Default was detected during the examination of the Borrower and its Restricted
Subsidiaries, and authorizing the Borrower to deliver such financial statements
and opinion thereon to the Administrative Agent and Lenders pursuant to this
Agreement.
Section 6.3 Compliance Certificates. At the time financial statements
are furnished pursuant to Sections 6.1 and 6.2 hereof, a certificate of an
Authorized Signatory:
(a) setting forth at the end of such period, a calculation of the
Leverage Ratio, as well as certifications and arithmetical calculations required
to establish whether the Borrower and its Restricted Subsidiaries were in
compliance with the requirements of Sections 7.1(b), (c), (d) and (e), 7.9 and
7.10 hereof, which shall be substantially in the form of Exhibit D hereto;
(b) setting forth the aggregate amount of outstanding Advances and
Reimbursement Obligations and certifying as to compliance herewith; and
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(c) stating that, to the best of his or her knowledge after due
inquiry, no Default has occurred as at the end of such period, or if a Default
has occurred, disclosing each such Default and its nature, when it occurred,
whether it is continuing and the steps being taken with respect to such Default.
Section 6.4 Copies of Other Reports and Notices.
(a) Promptly upon their becoming available, a copy of (i) all material
reports or letters submitted to the Borrower or any Restricted Subsidiary by
accountants in connection with any annual, interim or special audit, including
without limitation any report prepared in connection with the annual audit
referred to in Section 6.2 hereof, and any other comment letter submitted to
management in connection with any such audit, (ii) each financial statement,
report, notice or proxy statement sent by the Borrower or any Restricted
Subsidiary to stockholders generally, (iii) each regular or periodic report and
any registration statement (other than statements on Form S-8) or prospectus (or
material written communication in respect of any thereof) filed by the Borrower
or any subsidiary with any securities exchange, with the Securities and Exchange
Commission or any successor agency, and (iv) all press releases concerning
material financial aspects of the Borrower or any Restricted Subsidiary;
(b) Promptly upon becoming aware that (i) the holder(s) of any note(s)
or other evidence of Debt for Borrowed Money or other security of the Borrower
or any Restricted Subsidiary in excess of $10,000,000 in the aggregate has given
notice or taken any action with respect to a breach, failure to perform, claimed
default or event of default thereunder, (ii) any party to any Capitalized Lease
Obligations or any Local Marketing Agreement has given notice or taken any
action with respect to a breach, failure to perform, claimed default or event of
default thereunder, (iii) any occurrence or non-occurrence of any event which
constitutes or which with the passage of time or giving of notice or both could
constitute a material breach by the Borrower or any Restricted Subsidiary under
any material agreement or instrument which could reasonably be expected to
result in a liability in excess of $10,000,000, other than this Agreement to
which the Borrower or any Restricted Subsidiary is a party or by which any of
their properties may be bound, or (iv) any event, circumstance or condition
which could reasonably be expected to have a Material Adverse Effect, a written
notice specifying the details thereof (or the nature of any claimed default or
event of default) and what action is being taken or is proposed to be taken with
respect thereto; provided, however, no notice shall be required to be delivered
hereunder with respect to any event, circumstance or condition set forth in
clause (i), (ii) or (iii) immediately preceding if, in the opinion of counsel to
the Borrower or such Restricted Subsidiary, there is no reasonable possibility
of an adverse determination with respect to such event, circumstance or
condition;
(c) Promptly upon receipt thereof, information with respect to and
copies of any notices received from the FCC or any other federal, state or local
regulatory agencies or any tribunal relating to any order, ruling, law,
information or policy that relates to a breach of or noncompliance with the
Communications Act, which in each case could reasonably be expected to result in
the payment of money by the Borrower or any Restricted Subsidiary in an amount
of $10,000,000 or more in the aggregate, or otherwise have a Material Adverse
Effect, or result in the loss or suspension of any Necessary Authorization;
provided, however, no information shall be required to be delivered
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hereunder if, in the opinion of counsel to the Borrower or such Restricted
Subsidiary, there is no reasonable possibility of an adverse determination with
respect to such notice;
(d) Promptly upon receipt from any governmental agency, or any
government, political subdivision or other entity, any material notice,
correspondence, hearing, proceeding or order regarding or affecting the
Borrower, any Subsidiary, or any of their properties or businesses; and
(e) From time to time and promptly upon each request, such data,
certificates, reports, statements, opinions of counsel, documents or further
information regarding the assets, business, liabilities, financial position,
projections, results of operations or business prospects of the Borrower and its
Subsidiaries, as the Administrative Agent or any Lender may reasonably request.
Section 6.5 Notice of Litigation, Default and Other Matters. Prompt
notice of the following events after the Borrower has knowledge or notice
thereof:
(a) The commencement of all proceedings and investigations by or before
the FCC or any other governmental body, and all actions and proceedings in any
court or before any arbitrator involving claims for damages, fines or penalties
(including punitive damages) in excess of $5,000,000 per claim and $25,000,000
in the aggregate (after deducting the amount with respect to the Borrower or any
Restricted Subsidiary such Person is insured, provided such claim has not been
denied), against or in any other way relating directly to the Borrower, any
Restricted Subsidiary, or any of their properties or businesses; provided,
however, no notice shall be required to be delivered hereunder if, in the
opinion of counsel to the Borrower or such Restricted Subsidiary, there is no
reasonable possibility of an adverse determination in such action or proceeding;
(b) Promptly upon the happening of any condition or event which
constitutes a Default, a written notice specifying the nature and period of
existence thereof and what action is being taken or is proposed to be taken with
respect thereto; and
(c) Any material adverse change with respect to the business, assets,
liabilities, financial position, results of operations or prospective business
of the Borrower or any Subsidiary, other than changes in the ordinary course of
business which have not had and are not likely to have a Material Adverse
Effect.
Section 6.6 ERISA Reporting Requirements.
(a) Promptly and in any event (i) within 30 days after the Borrower or
any member of its Controlled Group knows or has reason to know that any ERISA
Event described in clause (a) of the definition of ERISA Event or any event
described in Section 4063(a) of ERISA with respect to any Plan of the Borrower
or any member of its Controlled Group has occurred, and (ii) within 10 days
after the Borrower or any member of its Controlled Group knows or has reason to
know that any other ERISA Event with respect to any Plan of the Borrower or any
member of its Controlled Group has occurred or a request for a minimum funding
waiver under Section 412 of the Code with respect to any Plan of the Borrower or
any member of its Controlled Group, a written notice describing such event and
describing what action is being taken or is proposed to be taken with respect
thereto, together with a copy of any notice of event that is given to the PBGC;
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(b) Promptly and in any event within two Business Days after receipt
thereof by the Borrower or any member of its Controlled Group from the PBGC,
copies of each notice received by the Borrower or any member of its Controlled
Group of the PBGC's intention to terminate any Plan or to have a trustee
appointed to administer any Plan;
(c) Promptly and in any event within 30 days after the filing thereof
by the Borrower or any member of its Controlled Group with the United States
Department of Labor, the Internal Revenue Service or the PBGC, copies of each
annual and other report (including Schedule B thereto) with respect to each
Plan;
(d) Promptly and in any event within 30 days after receipt thereof, a
copy of any notice, determination letter, ruling or opinion the Borrower or any
member of its Controlled Group receives from the PBGC, the United States
Department of Labor or the Internal Revenue Service with respect to any Plan;
(e) Promptly, and in any event within 10 Business Days after receipt
thereof, a copy of any correspondence the Borrower or any member of its
Controlled Group receives from the Plan Sponsor (as defined by Section
4001(a)(10) of ERISA) of any Plan concerning potential withdrawal liability
pursuant to Section 4219 or 4202 of ERISA, and a statement from the chief
financial officer of the Borrower or such member of its Controlled Group setting
forth details as to the events giving rise to such potential withdrawal
liability and the action which the Borrower or such member of its Controlled
Group is taking or proposes to take with respect thereto;
(f) Notification within 30 days of any material increases in the
benefits of any existing Plan which is not a Multiemployer Plan, or the
establishment of any new Plans, or the commencement of contributions to any Plan
to which the Borrower or any member of its Controlled Group was not previously
contributing;
(g) Notification within three Business Days after the Borrower or any
member of its Controlled Group knows or has reason to know that the Borrower or
any such member of its Controlled Group has or intends to file a notice of
intent to terminate any Plan under a distress termination within the meaning of
Section 4041(c) of ERISA and a copy of such notice; and
(h) Promptly after receipt of written notice of commencement thereof,
notice of all actions, suits and proceedings before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, affecting the Borrower or any member of its Controlled Group with
respect to any Plan, except those which, in the aggregate, if adversely
determined could not have a Material Adverse Effect.
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ARTICLE 7
Negative Covenants
So long as any of the Obligations are outstanding and unpaid or any
Commitment is outstanding (whether or not the conditions to borrowing have been
or can be fulfilled):
Section 7.1 Debt for Borrowed Money. The Borrower shall not create,
assume, incur or otherwise become or remain obligated in respect of, any Debt
for Borrowed Money, unless at the time such Debt for Borrowed Money is incurred
by the Borrower (a) there exists no Default and (b) no event has occurred and no
circumstance exists, which has had, or will have, a Material Adverse Effect. The
Borrower shall not permit any Restricted Subsidiary to, create, assume, incur or
otherwise become or remain obligated in respect of, or permit to be outstanding,
or suffer to exist any Debt for Borrowed Money, except:
(a) (i) Debt for Borrowed Money existing on the date hereof described
on Schedule 7.1 hereto, (ii) acquired Debt for Borrowed Money owed by
any SFX Entity or any AMFM Entity, provided that (A) such Debt for
Borrowed Money existed prior to the date of the AMFM Acquisition and
the SFX Acquisition (as applicable) and (B) was not incurred by such
AMFM Entity or SFX Entity in anticipation of such Acquisition, (iii)
Debt for Borrowed Money under the Loan Papers, and refinancings
thereof, and (iv) Debt for Borrowed Money consisting of Guaranties of
certain indebtedness of the $3B Credit Facility by the AMFM/SFX
Obligors (so long as the Obligations hereunder are guaranteed by
identical Guaranties);
(b) so long as (i) there exists no Default and (ii) no event has
occurred and no circumstance exists, which has had, or will have, a
Material Adverse Effect on the date of incurrence thereof, for the
Restricted Subsidiaries, Capitalized Lease Obligations and Debt for
Borrowed Money incurred to purchase property, not to exceed, when added
to all Debt for Borrowed Money incurred or acquired as permitted by
7.1(e) below, the greater of (A) 10% of Operating Cash Flow for the
four most recently completed fiscal quarters of the Borrower and (B)
$200,000,000, in the aggregate outstanding principal amount at any time
for all Restricted Subsidiaries (only $50,000,000 of which in the
aggregate for subsections 7.1(b) and (e) may be secured);
(c) (i) Debt for Borrowed Money among the Borrower and its Restricted
Subsidiaries (except until the respective Collateral Release Dates,
this subsection (i) shall not permit Debt for Borrowed Money owed by
any AMFM Entity or SFX Entity to the Borrower or any Restricted
Subsidiary that is not an AMFM Entity or SFX Entity, respectively), and
(ii) Debt for Borrowed Money owed by the AMFM/SFX Obligors to the
Borrower or any Restricted Subsidiary evidenced by the Intercompany
Notes. For the avoidance of doubt, until their respective Collateral
Release Dates, the AMFM Entities and the SFX Entities can only incur
intercompany Debt for Borrowed Money under this subsection (c) pursuant
to Intercompany Notes; however, on and after their respective
Collateral Release Dates, the AMFM Entities and the SFX Entities will
be treated the same as all other Restricted Subsidiaries;
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(d) With respect to Restricted Subsidiaries, and so long as (i) there
exists no Default and (ii) no event has occurred and no circumstance
exists, which has had, or will have, a Material Adverse Effect on the
date of incurrence thereof, Debt for Borrowed Money not to exceed 200
million British pounds pursuant to the More Group Credit Facility; and
(e) acquired Debt for Borrowed Money owed by any newly acquired
Restricted Subsidiary (which such Restricted Subsidiary was acquired in
accordance with the terms of Section 7.5 hereof), provided that (i)
such Debt for Borrowed Money existed prior to the date of Acquisition,
(ii) was not incurred by such Restricted Subsidiary in anticipation of
such Acquisition and (iii) all such acquired Debt for Borrowed Money of
Restricted Subsidiaries does not exceed, when added to all Debt for
Borrowed Money incurred or acquired as permitted by 7.1(b) above, the
greater of (A) 10% of Operating Cash Flow for the four most recently
completed fiscal quarters of the Borrower and (B) $200,000,000, in the
aggregate outstanding principal amount at any time for all Restricted
Subsidiaries (only $50,000,000 of which in the aggregate for
subsections 7.1(b) and (e) may be secured).
Section 7.2 Liens. The Borrower shall not, and shall not permit any
Restricted Subsidiary to, create, assume, incur, permit or suffer to exist,
directly or indirectly, any Lien on any of its assets, whether now owned or
hereafter acquired, except Permitted Liens and Liens on Intercompany Notes
securing obligations under the $3B Credit Facility (so long as the Obligations
hereunder are secured by identical Liens). The Borrower shall not, and shall not
permit any Restricted Subsidiary to, agree with any other Person that it shall
not create, assume, incur, permit or suffer to exist or to be created, assumed,
incurred or permitted to exist, directly or indirectly, any Lien on any of its
assets.
Section 7.3 Investments. The Borrower shall not, and shall not permit
any Subsidiary to, make or acquire any Investment, except (a) existing
Investments described on Schedule 7.3 hereto or valued at less than $500,000 on
the Closing Date, (b) Investments in cash equivalents, (c) Investments in the
form of Intercompany Notes in accordance with the terms of Section 5.14 hereof
and (d) Investments in the Borrower and its Restricted Subsidiaries (except (i)
all AMFM Entities, until their respective Collateral Release Date and (ii) all
SFX Entities, until their respective Collateral Release Date) or Investments by
any AMFM Entity or SFX Entity in any other AMFM Entity or SFX Entity,
respectively, provided that, notwithstanding the foregoing, so long as (A) there
exists no Default and (B) no event has occurred and no circumstance exists,
which has had, or will have, a Material Adverse Effect on the date such
Investment is made, the Borrower or such Subsidiary may make Investments in any
business (Capital Stock or assets) described in Section 5.2(a) hereof (except
(i) all AMFM Entities, until their respective Collateral Release Date and (ii)
all SFX Entities, until their respective Collateral Release Date).
Section 7.4 Amendment and Waiver. Other than as provided in Section 7.5
herein, the Borrower shall not, and shall not permit any Restricted Subsidiary
to, enter into any amendment of any material term or material provision of its
articles of incorporation or by-laws.
Section 7.5 Liquidation, Disposition or Acquisition of Assets, Merger,
New Subsidiaries. The Borrower shall not, and shall not permit any Restricted
Subsidiary to, at any time:
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(a) liquidate or dissolve itself (or suffer any liquidation or
dissolution) or otherwise wind up; or sell, lease, abandon, transfer or
otherwise dispose of all or any part of its assets, properties or
business, other than immaterial assets sold in the ordinary course of
business, or dispositions whose proceeds are applied in accordance with
Section 2.5(c) hereof;
(b) make any Acquisition, provided, however, so long as (i)
there shall exist no Default prior to and after giving effect to a
proposed transaction and (ii) no event has occurred and no circumstance
exists, which has had, or will have, a Material Adverse Effect on the
date of such transaction, the Borrower or any Restricted Subsidiary
may, consummate an Acquisition of another Person, so long as in each
case:
(A) such assets, property or business shall be in or
relate to the communications or media related business, or the
entertainment and internet businesses or related businesses,
(B) the Administrative Agent shall have received
copies of all documents, instruments, opinions and other
information relating to the seller and assets to be acquired
as it may reasonably request; and
(C) immediately after giving effect to any such
Acquisition, (I) all such acquired Debt for Borrowed Money of
the Restricted Subsidiaries shall comply with Section 7.1(e)
hereof, and (II) the Borrower shall be in compliance with
Section 7.5(c) below.
(c) enter into any merger or consolidation, provided, however, that, so
long as there shall exist no Default prior to or after giving effect to a
proposed transaction, (i)(A) a Restricted Subsidiary may merge or consolidate
with another Restricted Subsidiary; (B) an Unrestricted Subsidiary may merge or
consolidate with another Unrestricted Subsidiary or a Restricted Subsidiary; and
(C) an Unrestricted Subsidiary or a Restricted Subsidiary may merge or
consolidate with the Borrower provided, that the Borrower or such Restricted
Subsidiary shall be the surviving entity of any transaction governed by this
Section 7.5(c)(i); and (ii) the Borrower or any Restricted Subsidiary may merge
or consolidate with another Person, so long as (A) the Borrower or a Restricted
Subsidiary shall be the surviving entity, (B) no event has occurred and no
circumstance exists, which has had, or will have, a Material Adverse Effect on
the date of such transaction and (C) the Administrative Agent shall have
received copies of all information related thereto as it may reasonably request.
Section 7.6 Dividends. The Borrower shall not, and shall not permit any
Subsidiary to, directly or indirectly declare or pay any Dividend; provided,
however, (a) any Subsidiary may declare and pay Dividends to the Borrower or any
Restricted Subsidiary (and to any minority holders of its capital stock so long
as the Borrower or a Restricted Subsidiary receives Dividends that are at least
on a pro rata basis) and (b) the Borrower may declare and pay Dividends
(including amounts which become Dividends as a result of the proviso in the
definition of Dividends) on any date; provided, however, notwithstanding clause
(b) immediately preceding to the contrary, the Borrower shall pay no such
Dividends unless there shall exist no Default prior to or after giving effect to
any such proposed Dividend.
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Section 7.7 Affiliate Transactions. The Borrower shall not, and shall
not permit any Subsidiary to, at any time engage in any transaction with an
Affiliate (other than any of the Borrower and its Restricted Subsidiaries), nor
make an assignment or other transfer of any of its assets or properties to any
Affiliate, on terms materially less advantageous to the Borrower or Subsidiary
than would be the case if such transaction had been effected with a
non-Affiliate (other than advances to employees in the ordinary course of
business). The Borrower shall not, and shall not permit any Subsidiary to, in
any event incur or suffer to exist any Debt for Borrowed Money or Guaranty in
favor of any Affiliate, unless such Affiliate shall subordinate the payment and
performance thereof on terms satisfactory to the Lenders in their sole
discretion, and otherwise upon terms, conditions and documentation, and in a
manner satisfactory to Determining Lenders. Notwithstanding the foregoing, the
Borrower may loan the proceeds of Advances to Subsidiaries that are Restricted
Subsidiaries, so long as there shall exist no Default prior to or after giving
effect to such proposed loan.
Section 7.8 Compliance with ERISA. The Borrower shall not, and shall
not permit any Subsidiary to, directly or indirectly, or permit any member of
its Controlled Group to directly or indirectly, (a) terminate any Plan so as to
result in any material (in the opinion of the Determining Lenders) liability to
the Borrower or any member of its Controlled Group, (b) permit to exist any
ERISA Event, or any other event or condition which presents the risk of a
material (in the opinion of the Determining Lenders) liability of the Borrower
or any member of its Controlled Group, (c) make a complete or partial withdrawal
(within the meaning of Section 4201 of ERISA) from any Multiemployer Plan so as
to result in any material (in the opinion of the Determining Lenders) liability
to the Borrower or any member of its Controlled Group, (d) enter into any new
Plan or modify any existing Plan so as to increase its obligations thereunder
except in the ordinary course of business consistent with past practice which
could result in any material (in the opinion of the Determining Lenders)
liability to the Borrower or any member of its Controlled Group, or (e) permit
the present value of all benefit liabilities, as defined in Title IV of ERISA,
under each Plan of the Borrower or any member of its Controlled Group (using the
actuarial assumptions utilized by the PBGC upon termination of a plan) to
materially (in the opinion of the Determining Lenders) exceed the fair market
value of Plan assets allocable to such benefits all determined as of the most
recent valuation date for each such Plan.
Section 7.9 Leverage Ratio. At the end of each fiscal quarter occurring
during the periods indicated below, the Borrower shall not permit the Leverage
Ratio to be greater than:
Period Ratio
------ -----
From date hereof through June 29, 2001 6.00 to 1
June 30, 2001 through June 29, 2003 5.50 to 1
June 30, 2003 and thereafter 5.00 to 1
Section 7.10 Interest Coverage Ratio. At the end of each fiscal
quarter, the Borrower shall not permit the ratio of (a) Operating Cash Flow for
the four consecutive fiscal quarters then ending
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to (b) Interest Expense of the Borrower and its Subsidiaries for such quarters,
to be less than 2.00 to 1.00.
Section 7.11 Sale and Leaseback. The Borrower shall not, and shall not
permit any Restricted Subsidiary to, enter into any arrangement whereby it sells
or transfers any of its assets, and thereafter rents or leases such assets.
Section 7.12 Sale or Discount of Receivables. The Borrower shall not,
and shall not permit any Restricted Subsidiary to, directly or indirectly sell,
with or without recourse, for discount or otherwise, any notes or accounts
receivable.
Section 7.13 Business of Clear Channel Television Licenses, Inc. and
Clear Channel Broadcasting Licenses, Inc. Notwithstanding anything in this
Agreement to the contrary, the Borrower shall not permit Clear Channel
Television Licenses, Inc. and Clear Channel Broadcasting Licenses, Inc. to
engage in any business other than the ownership of (i) FCC licenses and
Necessary Authorizations for the operation of Clear Channel Television, Inc. and
Clear Channel Broadcasting, Inc., respectively, and (ii) at least 95% of the
Capital Stock of Clear Channel Television, Inc. and 100% of the Capital Stock of
Clear Channel Broadcasting, Inc., respectively.
Section 7.14 Other Restrictive Agreements. The Borrower shall not, and
shall not permit any Restricted Subsidiary to, enter into any agreement pursuant
to which the ability of the Borrower or any Restricted Subsidiary to (a) accept
any waiver or consent with respect to any provision of this Agreement or any
Loan Paper, or (b) enter into any amendment, amendment and restatement,
replacement or other substitution of this Agreement or any Loan Paper, is
prohibited or limited in any manner, or causes an event material and adverse to
the Borrower.
ARTICLE 8
Default
Section 8.1 Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event, and whether voluntary,
involuntary, or effected by operation of law or pursuant to any judgment or
order of any court or any order, rule or regulation of any governmental or
non-governmental body:
(a) Any representation or warranty made under any Loan Paper shall
prove to have been incorrect or misleading in any material respect when made;
(b) The Borrower shall default in the payment of (i) any interest or
any fees payable hereunder or any other costs, fees, expenses or other amounts
payable hereunder or under the Loan Papers, when due, which Default is not cured
within three Business Days from the date such payment became due by payment of
such late amount, or (ii) any principal when due;
(c) The Borrower or any Restricted Subsidiary shall default in the
performance or observance of any agreement or covenant contained in Article 7
hereof;
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(d) The Borrower or any Restricted Subsidiary shall default in the
performance or observance of any other agreement or covenant contained in this
Agreement not specifically referred to elsewhere in this Section 8.1, and such
default shall not be cured within a period of 30 days after the earlier of (i)
written notice from the Administrative Agent thereof and (ii) actual notice
thereof by any member of senior management of the Borrower;
(e) There shall occur any default or breach in the performance or
observance of any agreement or covenant (after the expiration of any applicable
grace period) or breach of any representation or warranty contained in any of
the Loan Papers (other than this Agreement);
(f) There shall be entered a decree or order by a court having
jurisdiction in the premises constituting an order for relief in respect of the
Borrower or any Subsidiary under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other applicable Federal or state
bankruptcy law or other similar law, or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or similar official of the Borrower
or any Subsidiary, or of any substantial part of their respective properties, or
ordering the winding-up or liquidation of the affairs of the Borrower or any
Subsidiary, and any such decree or order shall continue unstayed and in effect
for a period of 60 consecutive days; provided, that the affected assets alone or
in the aggregate total in excess of $25,000,000;
(g) The Borrower or any Subsidiary shall file a petition, answer or
consent seeking relief under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other applicable Federal or state
bankruptcy law or other similar law, or the Borrower or any Subsidiary shall
consent to the institution of proceedings thereunder or to the filing of any
such petition or to the appointment or taking of possession of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Borrower or any Subsidiary or of any substantial part of their respective
properties, or the Borrower or any Subsidiary shall fail generally to pay its
debts as they become due, or the Borrower or any Subsidiary shall take any
action in furtherance of any such action; provided, that the affected assets
alone or in the aggregate total in excess of $25,000,000;
(h) A final judgment or judgments shall be entered by any court against
the Borrower or any Subsidiary for the payment of money which exceeds
$25,000,000 in the aggregate, or a warrant of attachment or execution or similar
process shall be issued or levied against property of the Borrower or any
Subsidiary which, together with all other such property of the Borrower and its
Subsidiaries subject to other such process, exceeds in value $25,000,000 in the
aggregate, and if such judgment or award is not insured or, within 30 days after
the entry, issue or levy thereof, such judgment, warrant or process shall not
have been paid or discharged or stayed pending appeal, or if, after the
expiration of any such stay, such judgment, warrant or process shall not have
been paid or discharged;
(i) With respect to any Plan of the Borrower or any member of its
Controlled Group: (i) the Borrower, any such member, or any other
party-in-interest or disqualified person shall engage in transactions which in
the aggregate would reasonably result in a direct or indirect liability to the
Borrower or any member of its Controlled Group in excess of $25,000,000 under
Section 409 or 502 of ERISA or Section 4975 of the Code; (ii) the Borrower or
any member of its Controlled Group
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shall incur any accumulated funding deficiency, as defined in Section 412 of the
Code, in the aggregate in excess of $25,000,000, or request a funding waiver
from the Internal Revenue Service for contributions in the aggregate in excess
of $25,000,000; (iii) the Borrower or any member of its Controlled Group shall
incur any withdrawal liability in the aggregate in excess of $25,000,000 as a
result of a complete or partial withdrawal within the meaning of Section 4203 or
4205 of ERISA; (iv) the Borrower or any member of its Controlled Group shall
fail to make a required contribution by the due date under Section 412 of the
Code or Section 302 of ERISA which would result in the imposition of a lien
under Section 412 of the Code or Section 302 of ERISA; (v) the Borrower, any
member of its Controlled Group or any Plan sponsor shall notify the PBGC of an
intent to terminate, or the PBGC shall institute proceedings to terminate, or
the PBGC shall institute proceedings to terminate, any Plan; (vi) a Reportable
Event shall occur with respect to a Plan, and within 15 days after the reporting
of such Reportable Event to the Administrative Agent, the Administrative Agent
shall have notified the Borrower in writing that the Determining Lenders have
made a determination that, on the basis of such Reportable Event, there are
reasonable grounds for the termination of such Plan by the PBGC or for the
appointment by the appropriate United States District Court of a trustee to
administer such Plan and as a result thereof an Event of Default shall have
occurred hereunder; (vii) a trustee shall be appointed by a court of competent
jurisdiction to administer any Plan or the assets thereof; (viii) the benefits
of any Plan shall be increased, or the Borrower or any member of its Controlled
Group shall begin to maintain, or begin to contribute to, any Plan, without the
prior written consent of the Determining Lenders; or (ix) any ERISA Event with
respect to a Plan shall have occurred, and 30 days thereafter (A) such ERISA
Event, other than such event described in clause (vi) of the definition of ERISA
Event herein, (if correctable) shall not have been corrected and (B) the then
present value of such Plan's benefit liabilities, as defined in Title IV of
ERISA, shall exceed the then current value of assets accumulated in such Plan;
provided, however, that the events listed in subsections (v) through (ix) shall
constitute Events of Default only if, as of the date thereof or any subsequent
date, the maximum amount of liability that the Borrower or any member of its
Controlled Group could incur in the aggregate under Section 4062, 4063, 4064,
4219 or 4023 of ERISA or any other provision of law with respect to all such
Plans, computed by the actuary of the Plan taking into account any applicable
rules and regulations of the PBGC at such time, and based on the actuarial
assumptions used by the Plan, resulting from or otherwise associated with such
event exceeds $25,000,000;
(j) All or any material portion of the Loan Papers shall be the subject
of any proceeding instituted by any Person other than a Lender (except in
connection with any Lender's exercise of any remedies under the Loan Papers), or
there shall exist any litigation or threatened litigation with respect to all or
any material portion of the Collateral or the Loan Papers, or any of the
Borrower, its Subsidiaries or any of their Affiliates shall challenge in any
manner whatsoever the validity or enforceability of all or any portion of the
Loan Papers; provided, however, that during any such time any such circumstance
shall be bonded or stayed in accordance with Applicable Law and to the
satisfaction of the Determining Lenders, such circumstance shall not be an Event
of Default;
(k) The Borrower or any Restricted Subsidiary shall default in the
payment of any Debt for Borrowed Money in an aggregate amount of $25,000,000 or
more beyond any grace period provided with respect thereto, or shall default in
the performance of any agreement or instrument under which such Debt for
Borrowed Money is created or evidenced beyond any applicable grace period or an
event shall occur with respect to such Debt for Borrowed Money, if the effect of
such
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default or event is to permit or cause the holder of such Debt for Borrowed
Money (or a trustee on behalf of any such holder) to cause such Debt for
Borrowed Money to become due prior to its date of maturity or cause such Debt
for Borrowed Money to be prepaid, repurchased or redeemed;
(l) The Borrower or any Subsidiary shall fail to comply with the
Communications Act, or any rule or regulation promulgated by the FCC, and such
failure could reasonably be expected to have a Material Adverse Effect;
(m) Any material provision of any Loan Paper shall for any reason cease
to be valid and binding on or enforceable against any party to it (other than
the Administrative Agent or any Lender) in all material respects, or any such
party shall so state in writing; or
(n) Any civil action, suit or proceeding shall be commenced against the
Borrower, or any Subsidiary of the Borrower under any federal or state
racketeering statute (including, without limitation, the Racketeer Influenced
and Corrupt Organization Act of 1970)("RICO") and such suit shall be adversely
determined by a court of applicable jurisdiction, and which is either non-
appealable or which the Borrower or such Subsidiary has elected not to appeal;
or any criminal action or proceeding shall be commenced against the Borrower,
any Subsidiary of the Borrower under any federal or state racketeering statute
(including, without limitation, RICO).
Section 8.2 Remedies. If an Event of Default shall have occurred and
shall be continuing:
(a) With the exception of an Event of Default specified in Section
8.1(f) or (g) hereof, the Administrative Agent shall, upon the direction of the
Determining Lenders, terminate the Commitments and/or declare the principal of
and interest on the Advances and all Obligations and other amounts owed under
the Loan Papers to be forthwith due and payable without presentment, demand,
protest or notice of any kind, all of which are hereby expressly waived,
anything in the Loan Papers to the contrary notwithstanding.
(b) Upon the occurrence of an Event of Default specified in Section
8.1(f) or (g) hereof, such principal, interest and other amounts shall thereupon
and concurrently therewith become due and payable and the Commitments shall
forthwith terminate, all without any action by the Administrative Agent, any
Lender or any holders of the notes and without presentment, demand, protest or
other notice of any kind, all of which are expressly waived, anything in the
Loan Papers to the contrary notwithstanding.
(c) If any Letter of Credit shall be then outstanding, the
Administrative Agent may (or, upon the direction of the Determining Lenders,
shall) demand upon the Borrower to, and forthwith upon such demand, the Borrower
shall, pay to the Administrative Agent in same day funds at the office of the
Administrative Agent on such demand for deposit in the L/C Cash Collateral
Account, an amount equal to the maximum amount available to be drawn under the
Letters of Credit then outstanding; provided, however, that upon the occurrence
of an Event of Default pursuant to Section 8.1(f) or 8.1(g) hereof, such amount
shall become immediately due and payable without the requirement of any action
on the part of Administrative Agent.
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(d) The Administrative Agent, and the Lenders may exercise all of the
post-default rights granted to them under the Loan Papers or under Applicable
Law.
(e) The rights and remedies of the Administrative Agent and the Lenders
hereunder shall be cumulative, and not exclusive.
ARTICLE 9
Changes in Circumstances
Section 9.1 LIBOR Basis Determination Inadequate. If with respect to
any proposed LIBOR Advance for any Interest Period, any Lender determines that
(i) deposits in dollars (in the applicable amount) are not being offered to that
Lender in the relevant market for such Interest Period or (ii) the LIBOR Basis
for such proposed LIBOR Advance does not adequately cover the cost to such
Lender of making and maintaining such proposed LIBOR Advance for such Interest
Period, such Lender shall forthwith give notice thereof to the Borrower,
whereupon until such Lender notifies the Borrower that the circumstances giving
rise to such situation no longer exist, the obligation of such Lender to make
LIBOR Advances shall be suspended.
Section 9.2 Illegality. If any applicable law, rule or regulation, or
any change therein or adoption thereof, or interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
(or its LIBOR Lending Office) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency, shall make it unlawful or impossible for such Lender (or its LIBOR
Lending Office) to make, maintain or fund its LIBOR Advances, such Lender shall
so notify the Borrower and the Administrative Agent. Before giving any notice to
the Borrower pursuant to this Section, the notifying Lender shall designate a
different LIBOR Lending Office or other lending office if such designation will
avoid the need for giving such notice and will not, in the sole judgment of the
Lender, be materially disadvantageous to the Lender. Upon receipt of such
notice, notwithstanding anything contained in Article 2 hereof, the Borrower
shall repay in full the then outstanding principal amount of each LIBOR Advance
owing to the notifying Lender, together with accrued interest thereon, on either
(a) the last day of the Interest Period applicable to such Advance, if the
Lender may lawfully continue to maintain and fund such Advance to such day, or
(b) immediately, if the Lender may not lawfully continue to fund and maintain
such Advance to such day. Concurrently with repaying each affected LIBOR Advance
owing to such Lender, notwithstanding anything contained in Article 2 hereof,
the Borrower shall borrow a Base Rate Advance from such Lender, and such Lender
shall make such Base Rate Advance, in an amount such that the outstanding
principal amount of the Advances owing to such Lender shall equal the
outstanding principal amount of the Advances owing immediately prior to such
repayment.
Section 9.3 Increased Costs.
(a) If any applicable law, rule or regulation, or any change in or
adoption of any law, rule or regulation, or any interpretation or administration
thereof by any governmental authority, central
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bank or comparable agency charged with the interpretation or administration
thereof or compliance by any Lender (or its LIBOR Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central bank or compatible agency:
(i) shall subject a Lender (or its LIBOR Lending Office) to
any tax, duty or other charge (net of any tax benefit engendered
thereby) with respect to its LIBOR Advances or its obligation to make
such Advances, or shall change the basis of taxation of payments to a
Lender (or to its LIBOR Lending Office) of the principal of or interest
on its LIBOR Advances or in respect of any other amounts due under this
Agreement, as the case may be, or its obligation to make such Advances
(except for changes in the rate of tax on the overall net income of the
Lender or its LIBOR Lending Office and franchise taxes imposed upon
such Lender); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors
of the Federal Reserve System), special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, a Lender's LIBOR Lending Office or shall impose on the
Lender (or its LIBOR Lending Office) or on the United States market for
certificates of deposit or the London interbank market any other
condition affecting its LIBOR Advances or its obligation to make such
Advances;
and the result of any of the foregoing is to increase the cost to a Lender (or
its LIBOR Lending Office) of making or maintaining any LIBOR Advances, or to
reduce the amount of any sum received or receivable by a Lender (or its LIBOR
Lending Office) with respect thereto, by an amount deemed by a Lender to be
material, then, within 15 days after demand by a Lender, the Borrower agrees to
pay to such Lender such additional amount as will compensate such Lender for
such increased costs or reduced amounts. The affected Lender will as soon as
practicable notify the Borrower of any event of which it has knowledge,
occurring after the date hereof, which will entitle such Lender to compensation
pursuant to this Section and will designate a different LIBOR Lending Office or
other lending office if such designation will avoid the need for, or reduce the
amount of, such compensation and will not, in the sole judgment of the affected
Lender made in good faith, be disadvantageous to such Lender.
(b) A certificate of any Lender claiming compensation under this
Section and setting forth the additional amounts to be paid to it hereunder and
calculations therefor shall be conclusive in the absence of manifest error. In
determining such amount, a Lender may use any reasonable averaging and
attribution methods. If a Lender demands compensation under this Section, the
Borrower may at any time, upon at least five Business Days' prior notice to the
Lender, after reimbursement to the Lender by the Borrower in accordance with
this Section of all costs incurred, prepay in full the then outstanding LIBOR
Advances of the Lender, together with accrued interest thereon to the date of
prepayment, along with any reimbursement required under Section 2.9 hereof.
Concurrently with prepaying such LIBOR Advances, the Borrower shall borrow a
Base Rate Advance from the Lender, and the Lender shall make such Base Rate
Advance, in an amount such that the outstanding principal amount of the Advances
owing to such Lender shall equal the outstanding principal amount of the
Advances owing immediately prior to such prepayment.
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Section 9.4 Effect On Base Rate Advances. If notice has been given
pursuant to Section 9.1, 9.2 or 9.3 hereof suspending the obligation of a Lender
to make LIBOR Advances, or requiring LIBOR Advances of a Lender to be repaid or
prepaid, then, unless and until the Lender notifies the Borrower that the
circumstances giving rise to such repayment no longer apply, all Advances which
would otherwise be made by such Lender as LIBOR Advances shall be made instead
as Base Rate Advances.
Section 9.5 Capital Adequacy. If either (a) the introduction of or any
change in or in the interpretation of any law, rule or regulation or (b)
compliance by a Lender with any law, rule or regulation or any guideline or
request from any central bank or other governmental authority (whether or not
having the force of law) affects or would affect the amount of capital required
or expected to be maintained by a Lender or any corporation controlling such
Lender (any event or occurrence in clauses (a) or (b) above being a "Regulatory
Modification"), and such Lender reasonably determines that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
or Advances hereunder and other commitments or advances of such Lender of this
type, then, upon demand by such Lender, subject to Section 11.9, the Borrower
shall immediately pay to such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender with respect to
such circumstances (collectively, "Additional Costs"), to the extent that such
Lender reasonably determines in good faith such increase in capital to be
allocable to the existence of such Lender's Commitment hereunder.
Notwithstanding the foregoing, any Lender's demand for Additional Costs shall
not include any Additional Costs with respect to any period more than 180 days
prior to the date that such Lender gives notice to the Borrower of such
Additional Costs unless the effective date of the Regulatory Modification which
results in the right to receive Additional Costs is retroactive (the "Regulatory
Modification Retroactive Effective Date"). If any Regulatory Modification has a
Regulatory Modification Retroactive Effective Date and any Lender demands
compensation within 180 days after the date setting the Regulatory Modification
Retroactive Effective Date (the "Regulatory Modification Set Date"), such Lender
shall have the right to receive such Additional Costs from the Regulatory
Modification Retroactive Effective Date. If a Lender does not demand such
Additional Costs within 180 days after the Regulatory Modification Set Date,
such lender may not receive payment of Additional Costs with respect to any
period more than 180 days prior to such demand. A certificate as to such amounts
submitted to the Borrower by a Lender hereunder, shall, in the absence of
demonstrable error, be conclusive and binding for all purposes.
Section 9.6 Rights of a Borrower in Respect of Consequential Losses.
(a) Duty to Mitigate. If (i) any Lender shall request compensation
under Sections 9.3 or 9.5 hereof or (ii) any Lender delivers a notice described
in Sections 9.1 or 9.2 hereof, then such Lender shall use reasonable efforts
(which shall not require such Lender to suffer any disadvantage or burden
reasonably deemed by it (in good faith) to be significant, including without
limitation, to incur an unreimbursed loss or unreimbursed cost or expense or
otherwise take any action inconsistent with its internal policies or legal or
regulatory restrictions), promptly thereafter, (x) to file any certificate or
document reasonably requested in writing by the Borrower or (y) to assign its
rights and delegate and transfer its obligations hereunder to another of its
offices, branches or affiliates, if such filing or assignment would reduce its
claims for compensation under Sections 9.3 or 9.5 hereof or enable it to
withdraw its notice pursuant to Sections 9.1 or 9.2 hereof, as the case
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may be, in the future. The Borrower hereby agrees to pay all reasonable costs
and expenses incurred by any Lender in connection with any such filing or
assignment, delegation and transfer.
(b) Replacement of a Lender Upon Request for Compensation. If any
Lender has requested compensation or reimbursement in accordance with the terms
of Sections 9.3 and 9.5 hereof and (i) such request is not the result of any
uniform changes in the statutes or regulations for capital adequacy, and (ii)
the Borrower and such Lender are unable to reach a written agreement regarding
such request within 30 days following written notice by such Lender to the
Borrower and the Administrative Agent of such request, then after the expiration
of 30 days following the delivery of the notice under either Section 9.3 or 9.5
hereof, the Borrower may replace such Lender in whole with another Lender
acceptable to the Administrative Agent pursuant to an Assignment Agreement and
in accordance with Section 11.6(d) hereof, provided that, such Lender is
replaced at par value of all Obligations owing such Lender plus all accrued
interest and fees, and payments in accordance with Section 2.9 hereof, if any,
provided further, that Borrower pays the assignment and acceptance fee set forth
in Section 11.6(d) hereof for such replacement. Until such time as any Lender is
replaced by the Borrower, the Borrower shall reimburse or compensate such Lender
in accordance with the terms of Article 9 hereof.
ARTICLE 10
Agreement Among Lenders
Section 10.1 Agreement Among Lenders. The Lenders agree among
themselves that:
(a) Administrative Agent. Each Lender hereby appoints the
Administrative Agent as its nominee in its name and on its behalf, to receive
all documents and items to be furnished hereunder; to act as nominee for and on
behalf of all Lenders under the Loan Papers; to take such action as may be
requested by Determining Lenders, provided that, unless and until the
Administrative Agent shall have received such requests, the Administrative Agent
may take such administrative action, or refrain from taking such administrative
action, as it may deem advisable and in the best interests of the Lenders; to
arrange the means whereby the proceeds of the Advances of the Lenders are to be
made available to the Borrower; to distribute promptly to each Lender
information, requests and documents received from the Borrower, and each payment
(in like funds received) with respect to any of such Lender's Advances, fee or
other amount; and to deliver to the Borrower requests, demands, approvals and
consents received from the Lenders. Administrative Agent agrees to promptly
distribute to each Lender, at such Lender's address set forth below information,
requests, documents and payments received from the Borrower.
(b) Replacement of Administrative Agent. Should the Administrative
Agent or any successor Administrative Agent ever cease to be a Lender hereunder,
or should the Administrative Agent or any successor Administrative Agent ever
resign as Administrative Agent, or should the Administrative Agent or any
successor Administrative Agent ever be removed with or without cause by the
Determining Lenders, then the Lender appointed by the other Lenders shall
forthwith become the Administrative Agent, and the Borrower and the Lenders
shall execute such documents as any Lender may reasonably request to reflect
such change. Any resignation or removal of the
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Administrative Agent or any successor Administrative Agent shall become
effective upon the appointment by the Lenders of a successor Administrative
Agent; provided, however, that if the Lenders fail for any reason to appoint a
successor within 60 days after such removal or resignation, the Administrative
Agent or any successor Administrative Agent (as the case may be) shall
thereafter have no obligation to act as Administrative Agent hereunder.
(c) Expenses. Each Lender shall pay its pro rata share, based on its
Specified Percentage, of any reasonable expenses paid by the Administrative
Agent directly and solely in connection with any of the Loan Papers if
Administrative Agent does not receive reimbursement therefor from other sources
within 60 days after the date incurred, unless payment of such fees is being
diligently disputed by such Lender or the Borrower in good faith. Any amount so
paid by the Lenders to the Administrative Agent shall be returned by the
Administrative Agent pro rata to each paying Lender to the extent later paid by
the Borrower or any other Person on the Borrower's behalf to the Administrative
Agent.
(d) Delegation of Duties. The Administrative Agent may execute any of
its duties hereunder by or through officers, directors, employees, attorneys or
agents, and shall be entitled to (and shall be protected in relying upon) advice
of counsel concerning all matters pertaining to its duties hereunder.
(e) Reliance by Administrative Agent. The Administrative Agent and its
officers, directors, employees, attorneys and agents shall be entitled to rely
and shall be fully protected in relying on any writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telex or teletype
message, statement, order, or other document or conversation reasonably believed
by it or them in good faith to be genuine and correct and to have been signed or
made by the proper Person and, with respect to legal matters, upon opinions of
counsel selected by the Administrative Agent. The Administrative Agent may, in
its reasonable judgment, deem and treat the payee of any note as the owner
thereof for all purposes hereof.
(f) Limitation of Administrative Agent's Liability. Neither the
Administrative Agent nor any of its officers, directors, employees, attorneys or
agents shall be liable for any action taken or omitted to be taken by it or them
hereunder in good faith and believed by it or them to be within the discretion
or power conferred to it or them by the Loan Papers or be responsible for the
consequences of any error of judgment, except for its or their own gross
negligence or wilful misconduct. Except as aforesaid, the Administrative Agent
shall be under no duty to enforce any rights with respect to any of the
Advances, or any security therefor. The Administrative Agent shall not be
compelled to do any act hereunder or to take any action towards the execution or
enforcement of the powers hereby created or to prosecute or defend any suit in
respect hereof, unless indemnified to its satisfaction against loss, cost,
liability and expense. The Administrative Agent shall not be responsible in any
manner to any Lender for the effectiveness, enforceability, genuineness,
validity or due execution of any of the Loan Papers, or for any representation,
warranty, document, certificate, report or statement made herein or furnished in
connection with any Loan Papers, or be under any obligation to any Lender to
ascertain or to inquire as to the performance or observation of any of the
terms, covenants or conditions of any Loan Papers on the part of the Borrower.
To the extent not reimbursed by the Borrower, each Lender hereby severally, but
not jointly, indemnifies and holds harmless the Administrative Agent, pro rata
according to its Specified Percentage, from
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and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses and/or disbursements of any kind or
nature whatsoever which may be imposed on, asserted against, or incurred by the
Administrative Agent in any way with respect to any Loan Papers or any action
taken or omitted by the Administrative Agent under the Loan Papers (including
any negligent action of the Administrative Agent), except to the extent the same
result from gross negligence or wilful misconduct by the Administrative Agent.
(g) Liability Among Lenders. No Lender shall incur any liability (other
than the sharing of expenses and other matters specifically set forth herein and
in the other Loan Papers) to any other Lender, except for acts or omissions in
bad faith.
(h) Rights as Lender. With respect to its commitment hereunder, the
Advances made by it and note issued to it, the Administrative Agent shall have
the same rights as a Lender and may exercise the same as though it were not the
Administrative Agent, and the term "Lender" or "Lenders" shall, unless the
context otherwise indicates, include the Administrative Agent in its individual
capacity. The Administrative Agent or any Lender may accept deposits from, act
as trustee under indentures of, and generally engage in any kind of business
with, the Borrower and any of its Affiliates, and any Person who may do business
with or own securities of the Borrower or any of its Affiliates, all as if the
Administrative Agent were not the Administrative Agent hereunder and without any
duty to account therefor to the Lenders.
Section 10.2 Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Administrative Agent or any
other Lender and based upon the financial statements referred to in Sections
4.1(j), 6.1 and 6.2 hereof, and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based upon such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Papers.
Section 10.3 Benefits of Article. None of the provisions of this
Article shall inure to the benefit of any Person other than Lenders or the
Borrower, as applicable; consequently, no Person other than Lenders or the
Borrower shall be entitled to rely upon, or to raise as a defense, in any manner
whatsoever, the failure of the Administrative Agent or any Lender to comply with
such provisions.
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ARTICLE 11
Miscellaneous
Section 11.1 Notices.
(a) All notices and other communications under this Agreement shall be
in writing and shall be deemed to have been given on the date personally
delivered or sent by telecopy (answerback received), or three days after deposit
in the mail, designated as registered mail, return receipt requested,
postage-prepaid, or one day after being entrusted to a reputable commercial
overnight delivery service, or one day after being delivered to the telegraph
office or sent out by telex addressed to the party to which such notice is
directed at its address determined as provided in this Section. All notices and
other communications under this Agreement shall be given to the parties hereto
at the following addresses:
(i) If to the Borrower, at:
Clear Channel Communications, Inc.
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Executive Vice President/CFO
(ii) If to the Administrative Agent, at:
Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President
(iii) If to a Lender, at its address shown below its name on the
signature pages hereof, or if applicable, set forth in its
Assignment Agreement.
(b) Any party hereto may change the address to which notices shall be
directed by giving 10 days' written notice of such change to the other parties.
Section 11.2 Expenses. The Borrower shall promptly pay:
(a) all reasonable out-of-pocket expenses of the Administrative Agent
in connection with the preparation, negotiation, execution and delivery of this
Agreement and the other Loan Papers, the transactions contemplated hereunder and
thereunder, and the making of Advances and the issuance of Letters of Credit
hereunder, including without limitation the reasonable fees and disbursements of
Special Counsel;
(b) all reasonable out-of-pocket expenses of the Administrative Agent
in connection with the administration of the transactions contemplated in this
Agreement and the other Loan Papers,
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the preparation, negotiation, execution and delivery of any waiver, amendment or
consent by the Lenders relating to this Agreement or the other Loan Papers; and
(c) all reasonable costs, out-of-pocket expenses and attorneys' fees of
the Administrative Agent and each Lender incurred for enforcement, collection,
restructuring, refinancing and "work-out", or otherwise incurred in obtaining
performance under the Loan Papers, and all reasonable costs and out-of-pocket
expenses of collection if default is made in the payment of the notes, which in
each case shall include without limitation reasonable fees and expenses of
consultants, counsel for the Administrative Agent and any Lender, and
administrative fees for the Administrative Agent.
Section 11.3 Waivers. The rights and remedies of the Lenders under this
Agreement and the other Loan Papers shall be cumulative and not exclusive of any
rights or remedies which they would otherwise have. No failure or delay by the
Administrative Agent or any Lender in exercising any right shall operate as a
waiver of such right. The Lenders expressly reserve the right to require strict
compliance with the terms of this Agreement in connection with any funding of a
request for an Advance and the Issuing Bank expressly reserves the right to
require strict compliance with the terms of this Agreement in connection with
any issuance of a Letter of Credit. In the event that any Lender decides to fund
an Advance or the Issuing Bank decides to issue a Letter of Credit at a time
when the Borrower is not in strict compliance with the terms of this Agreement,
such decision by such Lender shall not be deemed to constitute an undertaking by
the Lender to fund any further requests for Advances or by the Issuing Bank to
issue any additional Letter of Credit or preclude the Lenders from exercising
any rights available under the Loan Papers or at law or equity. Any waiver or
indulgence granted by the Lenders shall not constitute a modification of this
Agreement, except to the extent expressly provided in such waiver or indulgence,
or constitute a course of dealing by the Lenders at variance with the terms of
the Agreement such as to require further notice by the Lenders of the Lenders'
intent to require strict adherence to the terms of this Agreement in the future.
Any such actions shall not in any way affect the ability of the Administrative
Agent or the Lenders, in their discretion, to exercise any rights available to
them under this Agreement or under any other agreement, whether or not the
Administrative Agent or any of the Lenders are a party thereto, relating to the
Borrower.
Section 11.4 Determination by the Lenders Conclusive and Binding. Any
material determination required or expressly permitted to be made by the
Administrative Agent or any Lender under this Agreement shall be made in its
reasonable judgment and in good faith, and shall when made, absent manifest
error, be conclusive and binding on all parties.
Section 11.5 Set-Off. 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 an Event of Default, each Lender and any subsequent
holder of any note, and any assignee or participant in any note is hereby
authorized by the Borrower at any time or from time to time, without notice to
the Borrower or any other Person, any such notice being hereby expressly waived,
to set-off, appropriate and apply any deposits (general or special (except trust
and escrow accounts), time or demand, including without limitation indebtedness
evidenced by certificates of deposit, in each case whether matured or unmatured)
and any other indebtedness at any time held or owing by such Lender or holder to
or for the credit or the account of the Borrower, against and on account of the
Obligations and other liabilities of the Borrower to such Lender or holder,
irrespective of whether or not (a) the Lender or
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holder shall have made any demand hereunder, or (b) the Lender or holder shall
have declared the principal of and interest on the Advances and other amounts
due hereunder to be due and payable as permitted by Section 8.2 and although
such obligations and liabilities, or any of them, shall be contingent or
unmatured. Any sums obtained by any Lender or by any assignee, participant or
subsequent holder of any note shall be subject to pro rata treatment of all
Obligations and other liabilities hereunder.
Section 11.6 Assignment.
(a) The Borrower may not assign or transfer any of its rights or
obligations hereunder or under the other Loan Papers without the prior written
consent of the Lenders.
(b) No Lender shall be entitled to assign its interest in this
Agreement, its notes or its Advances, except as hereinafter set forth.
(c) A Lender may at any time sell participations in all or any part of
its Advances (collectively, "Participations") to any bank, other financial
institution or fund ("Participants") provided that such Participation shall not
confer on any Person (other than the parties hereto) any right to vote on,
approve or sign amendments or waivers, or any other independent benefit or any
legal or equitable right, remedy or other claim under this Agreement or any
other Loan Papers, other than the right to vote on, approve, or sign amendments
or waivers or consents with respect to items that would result in (i) any
increase in the commitment of any Participant; or (ii)(A) the extension of the
date of maturity of, or (B) the extension of the due date for any payment of
principal, interest or fees respecting, or (C) the reduction of the amount of
any installment of principal or interest on or the change or reduction of any
mandatory reduction required hereunder, or (D) a reduction of the rate of
interest on, the Advances, the Letters of Credit, or the Reimbursement
Obligations, or change in Applicable Margin; or (iii) the reduction of any fees
payable hereunder. Notwithstanding the foregoing, the Borrower agrees that the
Participants shall be entitled to the benefits of Article 9 and Section 11.5
hereof as though they were Lenders and the Lenders may provide copies of all
financial information received from the Borrower to such Participants. To the
fullest extent it may effectively do so under Applicable Law, the Borrower
agrees that any Participant may exercise any and all rights of banker's lien,
set-off and counterclaim with respect to this Participation as fully as if such
Participant were the holder of the Advances in the amount of its Participation.
(d) Each Lender may assign to one or more financial institutions or
funds organized under the laws of the United States, or any state thereof, or
under the laws of any other country that is a member of the Organization for
Economic Cooperation and Development, or a political subdivision of any such
country, which is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business (each, an "Assignee")
its rights and obligations under this Agreement and the other Loan Papers up to
a total of 49% of its Specified Percentage of the Commitment; provided, however,
that (i) prior to each such assignment, the assigning Lender shall provide
Administrative Agent and the Borrower with notice of such assignment, (ii) each
such assignment shall be of a constant, and not a varying, percentage of the
Lender's rights and obligations under this Agreement, (iii) the amount of the
Commitment, Advances and Reimbursement Obligations being assigned pursuant to
each such assignment (determined as of the date of the assignment with respect
to such assignment) shall in no event be less than
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$5,000,000 and which is an integral multiple of $1,000,000, (iv) the applicable
Lender, Administrative Agent and applicable Assignee shall execute and deliver
to the Administrative Agent an Assignment and Acceptance Agreement (an
"Assignment Agreement") in substantially the form of Exhibit E hereto, together
with the notes subject to such assignment, (v) the Assignee or the Lender
executing the Assignment as the case may be, shall deliver to the Administrative
Agent a processing fee of $3,500 and (vi) notwithstanding anything herein to the
contrary, any Lender may assign up to a total of 100% of its Specified
Percentage of the Commitment with the prior written consent of the Borrower and
the Administrative Agent, which consent shall not be unreasonably withheld or
delayed (provided that without the consent of the Borrower or the Administrative
Agent, any Lender may make assignments to its Affiliates or another Lender).
Upon such execution, delivery and acceptance from and after the effective date
specified in each Assignment, which effective date shall be at least three
Business Days after the execution thereof, (A) the Assignee thereunder shall be
party hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment, have the rights and obligations of a
Lender hereunder and (B) the assigning Lender shall, to the extent that rights
and obligations hereunder have been assigned by it pursuant to such Assignment,
relinquish such rights and be released from such obligations under this
Agreement. The Borrower shall not be liable for any fees or expenses of the
Administrative Agent, any Lender, or any Assignee, incurred in connection with
such an Assignment.
(e) Notwithstanding anything in clause (d) above to the contrary, any
Lender may assign and pledge all or any portion of its Advances and note to any
Federal Reserve Bank as collateral security pursuant to Regulation A of F.R.S.
Board and any Operating Circular issued by such Federal Reserve Bank; provided,
however, that no such assignment under this clause (e) shall release the
assignor Lender from its obligations hereunder.
(f) Upon its receipt of an Assignment Agreement executed by a Lender
and an Assignee, and any note or notes subject to such assignment, the Borrower
shall, within three Business Days after its receipt of such Assignment
Agreement, at its own expense, execute and deliver to the Administrative Agent
in exchange for the surrendered notes new notes to the order of such Assignee in
an amount equal to the portion of the Advances, Reimbursement Obligations and
Commitment assigned to it pursuant to such Assignment Agreement and new notes to
the order of the assigning Lender in an amount equal to the portion of the
Advances and Commitment retained by it hereunder. Such new notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered notes, shall be dated the effective date of such Assignment
Agreement and shall otherwise be in substantially the form of Exhibit A hereto.
(g) No Lender may, without the prior consent of the Borrower, which
shall not be unreasonably withheld or delayed, in connection with any assignment
or Participation or proposed assignment or Participation pursuant to this
Section 11.6, disclose to the Assignee or Participant or proposed Assignee or
Participant, any information (which is not otherwise publicly available)
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower, unless such proposed assignee or participant agrees to keep such
information confidential and signs a confidentiality agreement in a form
substantially similar to the confidentiality agreement signed by the Persons who
were Lenders on the Original Closing Date. The Borrower may not prohibit any
Participation by withholding its consent pursuant to this Section 11.6(g).
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(h) Except as specifically set forth in this Section 11.6, nothing in
this Agreement or any other Loan Papers, expressed or implied, is intended to or
shall confer on any Person other than the respective parties hereto and thereto
and their successors and assignees permitted hereunder and thereunder any
benefit or any legal or equitable right, remedy or other claim under this
Agreement or any other Loan Papers.
Section 11.7 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
Section 11.8 Severability. Any provision of this Agreement which is for
any reason prohibited or found or held invalid or unenforceable by any court or
governmental agency shall be ineffective to the extent of such prohibition or
invalidity or unenforceability without invalidating the remaining provisions
hereof in such jurisdiction or affecting the validity or enforceability of such
provision in any other jurisdiction.
Section 11.9 Interest and Charges. It is not the intention of any
parties to this Agreement to make an agreement in violation of the laws of any
applicable jurisdiction relating to usury. Regardless of any provision in any
Loan Papers, no Lender shall ever be entitled to receive, collect or apply, as
interest on the Obligations, any amount in excess of the Maximum Amount. If any
Lender or participant ever receives, collects or applies, as interest, any such
excess, such amount which would be excessive interest shall be deemed a partial
repayment of principal and treated hereunder as such; and if principal is paid
in full, any remaining excess shall be paid to the Borrower. In determining
whether or not the interest paid or payable, under any specific contingency,
exceeds the Maximum Amount, the Borrower and the Lenders shall, to the maximum
extent permitted under Applicable Law, (a) characterize any nonprincipal payment
as an expense, fee or premium rather than as interest, (b) exclude voluntary
prepayments and the effect thereof, and (c) amortize, prorate, allocate and
spread in equal parts, the total amount of interest throughout the entire term
of the Obligations so that the interest rate is uniform throughout the entire
term of the Obligations; provided, however, that if the Obligations are paid and
performed in full prior to the end of the full contemplated term thereof, and if
the interest received for the actual period of existence thereof exceeds the
Maximum Amount, the Lenders shall refund to the Borrower the amount of such
excess or credit the amount of such excess against the total principal amount of
the Obligations owing, and, in such event, the Lenders shall not be subject to
any penalties provided by any laws for contracting for, charging or receiving
interest in excess of the Maximum Amount. This Section shall control every other
provision of all agreements pertaining to the transactions contemplated by or
contained in the Loan Papers.
Section 11.10 Headings. Headings used in this Agreement are for
convenience only and shall not be used in connection with the interpretation of
any provision hereof.
Section 11.11 Amendment and Waiver. This Agreement may not be amended,
modified or waived except by the written agreement of the Borrower and the
Determining Lenders; provided, however, that no such amendment, modification or
waiver shall be made (a) without the consent of all Lenders, if it would (i)
increase the Specified Percentage or commitment of any Lender, or
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(ii) extend or postpone any Commitment Reduction, extend or postpone the date of
payment or maturity of, extend the due date for any payment of principal or
interest on, reduce the amount of any installment of principal or interest on,
or reduce the rate of interest on, any Advance, the Reimbursement Obligations,
fees or other amounts owing under any Loan Papers, or (iii) release any security
for or guaranty of the Obligations (except pursuant to this Agreement), or (iv)
reduce the fees payable hereunder, or (v) revise this Section 11.11, or (v)
waive the date for payment of any of the Obligations, or (vi) amend the
definition of Determining Lenders, (vii) revise Sections 2.5(b), (c) or (d)
hereof or (vii) revise Sections 2.6(b) or (c) hereof; or (b) without the consent
of the Administrative Agent, if it would alter the rights, duties or obligations
of the Administrative Agent. Neither this Agreement nor any term hereof may be
amended orally, nor may any provision hereof be waived orally but only by an
instrument in writing signed by the Administrative Agent and, in the case of an
amendment, by the Borrower.
Section 11.12 Exception to Covenants. Neither the Borrower nor any
Restricted Subsidiary shall be deemed to be permitted to take any action or fail
to take any action which is permitted as an exception to any of the covenants
contained herein or which is within the permissible limits of any of the
covenants contained herein if such action or omission would result in the breach
of any other covenant contained herein.
Section 11.13 No Liability of Issuing Bank. The Borrower assumes all
risks of the acts or omissions of any beneficiary or transferee of any Letter of
Credit with respect to its use of such Letter of Credit. Neither the Issuing
Bank nor any Lender nor any of their respective officers or directors shall be
liable or responsible for: (a) the use that may be made of any Letter of Credit
or any acts or omissions of any beneficiary or transferee in connection
therewith; (b) the validity, sufficiency or genuineness of documents, or of any
endorsement thereon, even if such documents should prove to be in any or all
respects invalid, insufficient, fraudulent or forged; (c) payment by the Issuing
Bank against presentation of documents that do not comply with the terms of a
Letter of Credit, including failure of any documents to bear any reference or
adequate reference to the Letter of Credit, except for any payment made upon the
Issuing Bank's gross negligence or willful misconduct; or (d) any other
circumstances whatsoever in making or failing to make payment under any Letter
of Credit, except that the Borrower shall have a claim against the Issuing Bank,
and the Issuing Bank shall be liable to the Borrower, to the extent of any
direct, but not consequential, damages suffered by the Borrower that the
Borrower proves were caused by (i) the Issuing Bank's willful misconduct or
gross negligence in determining whether documents presented under any Letter of
Credit comply with the terms of the Letter of Credit or (ii) the Issuing Bank's
willful failure to make lawful payment under a Letter of Credit after the
presentation to it of a draft and certificates strictly complying with the terms
and conditions of the Letter of Credit other than pursuant to the Uniform
Commercial Code Section 5-114. In furtherance and not in limitation of the
foregoing, the Issuing Bank may accept documents that appear on their face to be
in order, without responsibility for further investigation, regardless of any
notice or information to the contrary.
Section 11.14 Credit Agreement Governs. In the event of any conflict
between the terms of this Agreement and any terms of any other Loan Paper, the
terms of this Agreement shall control.
SECTION 11.15 GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN PAPERS
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
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BY THE LAWS OF THE STATE OF TEXAS AND THE FEDERAL LAWS OF THE UNITED STATES;
PROVIDED, HOWEVER, THAT CHAPTER 346 OF THE TEXAS FINANCE CODE SHALL NOT APPLY TO
THE ADVANCES, THIS AGREEMENT AND THE OTHER LOAN PAPERS. WITHOUT EXCLUDING ANY
OTHER JURISDICTION, THE BORROWER AGREES THAT THE STATE AND FEDERAL COURTS OF
TEXAS LOCATED IN DALLAS, TEXAS SHALL HAVE JURISDICTION OVER PROCEEDINGS IN
CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN PAPERS.
SECTION 11.16 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY KNOWINGLY VOLUNTARILY, IRREVOCABLY
AND INTENTIONALLY WAIVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM ARISING OUT OF OR RELATED TO
ANY OF THE LOAN PAPERS OR THE TRANSACTIONS CONTEMPLATED THEREBY. THIS PROVISION
IS A MATERIAL INDUCEMENT TO EACH LENDER ENTERING INTO THIS AGREEMENT AND MAKING
ANY ADVANCES HEREUNDER.
SECTION 11.17 ENTIRE AGREEMENT. THIS WRITTEN AGREEMENT, TOGETHER WITH
THE OTHER LOAN PAPERS, REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
Section 11.18. Amendment and Restatement. This Agreement is an
amendment and restatement of the Original Credit Agreement by Determining
Lenders in accordance with the terms of Section 11.11 of the Original Credit
Agreement, and, as such, except for the "Obligation" as defined in the Original
Credit Agreement (which shall survive, be renewed and restated by the terms of
this Agreement), all terms and provisions of this Agreement supersede in their
entirety the terms and provisions of the Original Credit Agreement. The
Administrative Agent and the Lenders hereby waive any breach or default of any
of the terms of Section 7.6 in the Original Credit Agreement. All references in
any Loan Paper to the "Credit Agreement" shall hereafter be deemed to be
references to this Agreement. All provisions of each Loan Paper shall remain in
full force and effect, and such provisions are hereby ratified and confirmed,
regardless of whether any such Loan Paper was executed prior to the Closing
Date.
Section 11.19. Confidentiality. The Administrative Agent and each
Lender shall hold all non-public, proprietary or confidential information (which
has been identified and marked as such by the Borrower) obtained pursuant to the
terms of this Agreement confidential in accordance with their customary
procedures for handling confidential information of this nature and in
accordance with safe and sound banking and investment practices, however, the
Administrative Agent and each Lender may make disclosure of any such information
to (a) their examiners, affiliates, internal and outside counsel, auditors,
consultants, appraisers and other professional advisors, or to any governmental
authority or representative thereof, or in connection with the enforcement of
this Agreement or any related agreement, or pursuant to legal process or with
respect to any litigation, and (b) to any participant, transferee or assignee,
or proposed assignee, transferee or participant, so
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long as in the case of (b) foregoing, such participant, transferee or assignee,
or proposed assignee, transferee or participant agrees to keep such information
confidential in accordance with the terms of this provision (which such
agreement is not required to be in writing). In addition, the Administrative
Agent and each Lender may make disclosure of such information to any direct or
indirect contractual counterparty in swap agreements (or to such contractual
party's professional advisors). In no event shall the Administrative Agent or
any Lender be obligated to return any materials furnished to it by the Borrower.
The foregoing provisions shall not apply to the Administrative Agent or any
Lender with respect to any information that (i) is or becomes generally
available to the public (other than through a breach by any of the
Administrative Agent or any Lender of this provision), (ii) is already in the
possession of the Administrative Agent or any Lender on a nonconfidential basis,
or (iii) comes into the possession of or is independently developed by the
Administrative Agent or any Lender in a manner not known to such entity to
involve a breach of a duty of confidentiality owing to the Borrower.
Section 11.20. Qualified Commercial Loan. This Agreement evidences a
"qualified commercial loan" as that term is defined in Section 306.001 of the
Texas Finance Code, as amended.
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IN WITNESS WHEREOF, this Fourth Amended and Restated Credit Agreement
is executed as of the date first set forth above.
BORROWER: CLEAR CHANNEL COMMUNICATIONS, INC.
By:
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Name:
------------------------------------
Title:
------------------------------------
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BANK OF AMERICA, N.A., as a Lender and as
Administrative Agent
By:
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Name:
------------------------------------
Title:
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Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
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FLEET NATIONAL BANK, as a Lender and as
Documentation Agent
By:
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Name:
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Title:
------------------------------------
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - Mail Code 10303H
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Title:
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BANK OF MONTREAL, as a Lender and as a Co-
Syndication Agent
By:
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Name:
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Title:
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Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
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TORONTO DOMINION (TEXAS), INC., as a
Lender and as a Co-Syndication Agent
By:
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Name:
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Title:
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▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
Title: Vice President
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LENDERS:
ABN AMRO BANK, N.V.
By:
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Name:
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Title:
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By:
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Name:
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Title:
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Attn: ▇▇▇▇▇▇ ▇▇▇▇
Title:
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BANK BRUSSELS ▇▇▇▇▇▇▇
By:
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Name:
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Title:
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c/o (USA) Capital Corp.
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Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Title:
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BANK OF HAWAII
By:
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Name:
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Title:
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Attn: ▇▇▇▇ ▇▇▇
Title: Vice President
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THE GOVERNOR AND COMPANY OF THE
BANK OF IRELAND
By:
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Name:
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Title:
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Corporate Banking - Block ▇-▇, ▇▇▇▇ ▇▇▇▇▇▇
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Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
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By:
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Name:
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Title:
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Attn: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
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▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By:
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Name:
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Title:
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Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
Title:
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BNP PARIBAS
By:
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Name:
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Title:
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By:
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Name:
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Title:
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Attn: ▇▇▇▇▇ ▇▇▇
Title: Vice President
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BARCLAYS BANK PLC
By:
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Name:
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Title:
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▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director
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CREDIT AGRICOLE INDOSUEZ
By:
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Name:
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Title:
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By:
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Name:
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Title:
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Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President, Senior
Relationship Manager
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THE CHASE MANHATTAN BANK
By:
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Name:
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Title:
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Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
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CIBC INC.
By:
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Name:
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Title:
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Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
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CREDIT INDUSTRIEL ET COMMERCIAL
By:
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Name:
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Title:
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By:
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Name:
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Title:
------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇
Title:
98
104
CREDIT SUISSE FIRST BOSTON
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
Eleven Madison ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Title:
99
105
THE DAI-ICHI KANGYO BANK, LTD.
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
100
106
FIRST UNION NATIONAL BANK
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
One First Union Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
101
107
HIBERNIA NATIONAL BANK
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
102
108
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
1251 Avenue of the Americas, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
103
109
KEY CORPORATE CAPITAL INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
104
110
MELLON BANK, N.A.
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
105
111
MICHIGAN NATIONAL BANK
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Mail Code 1036
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
106
112
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
107
113
NATEXIS BANQUE
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
108
114
PNC BANK, NATIONAL ASSOCIATION
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
109
115
THE ROYAL BANK OF SCOTLAND PLC
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
110
116
THE SANWA BANK LIMITED
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
111
117
SOCIETE GENERALE, NEW YORK BRANCH
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
1221 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
112
118
THE SUMITOMO BANK, LIMITED, NEW YORK
BRANCH
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
113
119
SUNTRUST BANK
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
114
120
THE TOYO TRUST & BANKING COMPANY,
LTD.
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
115
▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, N.A.
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
116
122
WACHOVIA BANK OF GEORGIA, N.A.
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
28th Floor, Mail Code 370
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
117
123
▇▇▇▇▇ FARGO BANK TEXAS, NATIONAL
ASSOCIATION, SUCCESSOR BY
CONSOLIDATION TO ▇▇▇▇▇ FARGO BANK
(TEXAS), NATIONAL ASSOCIATION
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
118
124
WESTDEUTSCHE LANDESBANK
GIROZENTRALE
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
1211 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Associate Director
119
125
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10260-0060
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
120
126
BANKERS TRUST COMPANY
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Plaza, 27th Floor
New York, New York 10006
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Principal
121
127
GENERAL ELECTRIC CAPITAL CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Title:
122
128
SCHEDULE 1.1
EXISTING LETTERS OF CREDIT
123
129
SCHEDULE 1.2
LIBOR LENDING OFFICES
BANK OF AMERICA, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
THE FIRST NATIONAL BANK OF BOSTON
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
BANK OF MONTREAL
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
TORONTO DOMINION (TEXAS), INC.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ABN AMRO BANK N.V.
Three Riverway, Suite 1700
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
BANK BRUSSELS ▇▇▇▇▇▇▇, NEW YORK BRANCH
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
BANK OF HAWAII
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
BANK OF IRELAND - GRAND CAYMAN BRANCH
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
THE BANK OF NEW YORK
One Wall Street, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
-1-
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
BANQUE PARIBAS
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
BARCLAYS BANK PLC
BZW Division
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
CAISSE NATIONALE DE CREDIT AGRICOLE
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
THE CHASE MANHATTAN BANK
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
CIBC INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION EUROPEENNE
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
CREDIT SUISSE FIRST BOSTON
Eleven Madison Avenue
19th Floor
New York, New York 10010-3629
CRESTAR BANK
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-2-
131
THE DAI-ICHI KANGYO BANK, LTD.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
Capital Markets Group - Communications
One First Union Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
FLEET BANK, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
THE FUJI BANK, LIMITED
One Houston Center
Suite 4100
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
HIBERNIA NATIONAL BANK
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
INDUSTRIAL BANK OF JAPAN
1251 Avenue of the Americas
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
KEYBANK NATIONAL ASSOCIATION
Media & Telecommunications Finance Division
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED, NEW YORK BRANCH
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
MELLON BANK, N.A.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
MICHIGAN NATIONAL BANK
Specialty Industries 10-36
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
-3-
132
THE MITSUBISHI TRUST AND BANKING CORPORATION
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
PNC BANK, NATIONAL ASSOCIATION
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
THE ROYAL BANK OF SCOTLAND, PLC
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
THE SANWA BANK, LIMITED, DALLAS AGENCY
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
SOCIETE GENERALE
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
THE SUMITOMO BANK, LIMITED
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
SUN TRUST BANK, CENTRAL FLORIDA, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
THE TOYO TRUST AND BANKING COMPANY, LTD., NEW YORK BRANCH
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10103-3395
UNION BANK OF CALIFORNIA, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
WACHOVIA BANK OF GEORGIA, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
28th Floor, Mail Code 370
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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133
▇▇▇▇▇ FARGO BANK (TEXAS), N.A.
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
WESTDEUSTCHE LANDESBANK, GIROZENTRALE
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
THE YASUDA TRUST AND BANKING CO., LTD.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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134
SCHEDULE 1.3
EXISTING LIENS
As part of the purchase of the stock of US Radio by Memphis, the debt
owed under that one certain Senior Secured Credit and September 23, 1994, with
Chemical Bank as agent (and amendments thereto), was paid and the necessary
documents releasing the liens held pursuant to such Senior Secured Credit
Agreement were delivered to Memphis at the closing. Such lien releases have been
filed with the appropriate state and/or county authorities and confirmation of
filing of such lien releases have been received on all lien releases except for
a Satisfaction of Mortgage to be filed in Racine County, Wisconsin.
135
SCHEDULE 1.4
SPECIFIED PERCENTAGES
BANK OF AMERICA., N.A.
Specified Percentage:
5.71428571542857%
THE FIRST NATIONAL BANK OF BOSTON
Specified Percentage:
4.71428571428571%
BANK OF MONTREAL
Specified Percentage:
4.▇▇▇▇▇▇▇▇▇▇▇▇▇▇%
TORONTO DOMINION (TEXAS), INC.
Specified Percentage:
4.71428571428571%
ABN AMRO BANK N.V.
Specified Percentage:
2.85714285714286%
BANK BRUSSELS ▇▇▇▇▇▇▇, NEW YORK
BRANCH
Specified Percentage:
1.14285714285714%
BANK OF HAWAII
Specified Percentage:
0.85714285714286%
BANK OF IRELAND - GRAND CAYMAN
BRANCH
Specified Percentage:
1.42857142857143%
THE BANK OF NEW YORK
Specified Percentage:
4.11904761885714%
THE BANK OF NOVA SCOTIA
Specified Percentage:
2.▇▇▇▇▇▇▇▇▇▇▇▇▇▇%
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136
BANQUE PARIBAS
Specified Percentage:
1.14285714285714%
BARCLAYS BANK PLC
Specified Percentage:
2.85714285714286%
CAISSE NATIONALE DE CREDIT AGRICOLE
Specified Percentage:
0.85714285714286%
THE CHASE MANHATTAN BANK
Specified Percentage:
4.11904761885714%
CIBC INC.
Specified Percentage:
4.11904761885714%
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
Specified Percentage:
2.00000000000000%
CREDIT SUISSE FIRST BOSTON
Specified Percentage:
2.85714285714286%
CRESTAR BANK
Specified Percentage:
1.42857142857143%
THE DAI-ICHI KANGYO BANK, LTD.
Specified Percentage:
2.85714285714286%
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA
Specified Percentage:
2.85714285714286%
FLEET BANK, N.A.
Specified Percentage:
4.11904761885714%
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137
THE FUJI BANK, LIMITED
Specified Percentage:
2.00000000000000%
HIBERNIA NATIONAL BANK
Specified Percentage:
1.42857142857143%
INDUSTRIAL BANK OF JAPAN
Specified Percentage:
1.42857142857143%
KEYBANK NATIONAL ASSOCIATION
Specified Percentage:
2.00000000000000%
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
Specified Percentage:
2.85714285714286%
MELLON BANK, N.A.
Specified Percentage:
4.11904761885714%
MICHIGAN NATIONAL BANK
Specified Percentage:
1.14285714285714%
THE MITSUBISHI TRUST AND BANKING
CORPORATION
Specified Percentage:
1.42857142857143%
PNC BANK, NATIONAL ASSOCIATION
Specified Percentage:
2.85714285714286%
THE ROYAL BANK OF SCOTLAND, PLC
Specified Percentage:
1.42857142857143%
THE SANWA BANK, LIMITED, DALLAS
AGENCY
Specified Percentage:
2.85714285714286%
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138
SOCIETE GENERALE
Specified Percentage:
1.14285714285714%
THE SUMITOMO BANK, LIMITED
Specified Percentage:
1.42857142857143%
SUN TRUST BANK, CENTRAL FLORIDA, N.A.
Specified Percentage:
1.42857142857143%
THE TOYO TRUST AND BANKING COMPANY,
LTD., NEW YORK BRANCH
Specified Percentage:
0.85714285714286%
UNION BANK OF CALIFORNIA, N.A.
Specified Percentage:
4.11904761885714%
WACHOVIA BANK OF GEORGIA, N.A.
Specified Percentage:
1.42857142857143%
▇▇▇▇▇ FARGO BANK (TEXAS), N.A.
Specified Percentage:
1.42857142857143%
WESTDEUTSCHE LANDESBANK,
GIROZENTRALE
Specified Percentage:
1.42857142857143%
THE YASUDA TRUST AND BANKING CO., LTD.
Specified Percentage:
0.85714285714286%
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139
SCHEDULE 4.1(a)
RESTRICTED SUBSIDIARIES
FIRST TIER
"ARN" means the Australian Radio Network Limited, PTY, an Australian
propriety company, 50% of whose Capital Stock is owned by the Borrower.
"Broadcasting" means Clear Channel Broadcasting, Inc., a Nevada
corporation, and a wholly-owned Subsidiary of Broadcasting Licenses.
"Broadcasting Licenses" means Clear Channel Broadcasting Licenses,
Inc., a Nevada corporation, and a wholly-owned Subsidiary of Holdings.
"CCC-Houston" means CCC-Houston AM, Ltd., a Texas limited partnership
and a Subsidiary of Clear Channel Broadcasting, Inc. and CCR Houston-Nevada,
Inc.
"CCRE" means Clear Channel Real Estate, Inc., a Nevada corporation, and
a wholly-owned Subsidiary of Holdings.
"CCR Houston-Nevada" means CCR Houston-Nevada, Inc., a Nevada
corporation, and a wholly-owned Subsidiary of Radio.
"▇▇▇▇▇" means ▇▇▇▇▇ Media Corporation, a Delaware corporation, formerly
known as EMC Group, Inc., formerly ▇▇▇▇▇ Media Company, and a Subsidiary of
Clear Channel Holdings, Inc.
"Holdings" means Clear Channel Holdings, Inc., a Nevada corporation,
and a wholly-owned Subsidiary of the Borrower.
"Management" means Clear Channel Management, Inc., a Delaware
corporation, and a wholly-owned Subsidiary of Holdings.
"Memphis" means Clear Channel Communications of Memphis, Inc., a Texas
corporation, and a wholly-owned Subsidiary of Holdings.
"Productions" means Clear Channel Productions, Inc., a Nevada
corporation, and a wholly-owned Subsidiary of Holdings.
"Television" means Clear Channel Television, Inc., a Nevada
corporation, and a wholly-owned Subsidiary of Television Licenses.
"Television Licenses" means Clear Channel Television Licenses, Inc., a
Nevada corporation, and a wholly-owned Subsidiary of Holdings.
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140
SECOND TIER
"▇▇▇▇▇ Media Company" means ▇▇▇▇▇ Media Company, a Delaware
corporation, formerly known as EH&F, Inc., and a wholly-owned Subsidiary of
▇▇▇▇▇.
THIRD TIER
"▇▇▇▇▇ Investment" means ▇▇▇▇▇ Investment Company, Inc., an Arizona
corporation, and a wholly-owned Subsidiary of ▇▇▇▇▇ Media Company.
"PMG" means PMG Holdings, Inc., a Delaware corporation, and a
wholly-owned Subsidiary of ▇▇▇▇▇ Media Company.
"▇▇▇▇▇▇▇ Media" means ▇▇▇▇▇▇▇ Media Group, Inc., a Delaware corporation
owned 99.1% by ▇▇▇▇▇ Media Company and 0.9% by PMG.
FOURTH TIER
"Blue Wallscapes" means Blue Wallscapes, Inc., a California
corporation, and a wholly-owned Subsidiary of ▇▇▇▇▇▇▇ Media.
"Chicago Shelters" means Chicago Shelters Advertising, Inc., an
Illinois corporation, and a wholly-owned Subsidiary of ▇▇▇▇▇▇▇ Media.
"▇▇▇▇▇ Advertising" means ▇▇▇▇▇ Outdoor Advertising Company, an Arizona
corporation, and a wholly-owned Subsidiary of ▇▇▇▇▇ Investment.
"▇▇▇▇▇ Atlanta" means ▇▇▇▇▇ Outdoor Advertising Co. of Atlanta, an
Arizona corporation, and a wholly-owned Subsidiary of ▇▇▇▇▇ Investment.
"▇▇▇▇▇ El Paso" means ▇▇▇▇▇ Outdoor of El Paso, Inc., a Texas
corporation, and a wholly-owned Subsidiary of ▇▇▇▇▇ Investment.
"Eltex" means Eltex Investment Corp., a Delaware corporation, and a
wholly-owned Subsidiary of ▇▇▇▇▇▇▇ Media.
"PMG Target" means PMG Target Media Holdings, Inc., a Delaware
corporation, and a wholly-owned Subsidiary of ▇▇▇▇▇▇▇ Media.
"Shelter Advertising" means Shelter Advertising of America, Inc., a
Delaware corporation, and a wholly-owned Subsidiary of ▇▇▇▇▇▇▇ Media.
FIFTH TIER
"▇▇▇▇▇ Target" means ▇▇▇▇▇ Target Media Group, L.P., a California
limited partnership, owned 83% by PMG Target as a general partner, and 17% by ▇.
▇▇▇▇▇▇ as a limited partner.
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141
"Shelter Advertising of Hialeah" means Shelter Advertising of Hialeah,
Inc., a Florida corporation, and a wholly-owned Subsidiary of Shelter
Advertising.
"▇▇▇▇▇▇▇ International" means ▇▇▇▇▇▇▇ International Development
Corporation, a Florida corporation, and a wholly-owned Subsidiary of Shelter
Advertising.
SIXTH TIER
"American Shelter" means American Shelter Company, Inc., an Illinois
corporation, and a wholly-owned Subsidiary of ▇▇▇▇▇ Target.
"▇▇▇▇▇▇▇" means ▇▇▇▇▇▇▇, Inc., a Florida corporation, and a
wholly-owned Subsidiary of ▇▇▇▇▇▇▇ International.
"▇▇▇▇▇▇▇ Enterprises" means ▇▇▇▇▇▇▇ Enterprises International, Inc., a
Florida corporation, and a wholly-owned Subsidiary of ▇▇▇▇▇▇▇ International.
OTHER
"NRNZ" means NRNZ Holdings, Limited, a New Zealand corporation of which
33 1/3% of the outstanding Capital Stock is owned by Borrower.
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142
UNRESTRICTED SUBSIDIARIES
1. Radio Data Group, Inc.
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143
SCHEDULE 4.1(h)
EXISTING LITIGATION
144
SCHEDULE 4.1(k)
MATERIAL ADVERSE CHANGES
145
SCHEDULE 7.1
EXISTING INDEBTEDNESS
1. Borrower guaranty of RDS Broadcasting, Inc. in the original principal
amount of $9,575,000.
2. Borrower guaranty of Metroplex Communications, Inc. in the form of a
letter of credit for $7,000,000.
3. Borrower $1,150,000 guaranty via a letter of credit issued to ▇▇▇▇▇
▇▇▇▇▇▇▇ for obligations owed to ▇▇▇▇▇ ▇▇▇▇▇▇▇.
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146
SCHEDULE 7.3
EXISTING INVESTMENTS
1. Clear Channel Television, Inc. ("CCT") purchased $2,250,000 of
equipment on May 27, 1992 from Mercury. Among the assets purchased was
a tower located between Mobile, Alabama and Pensacola, Florida. A
portion of the equipment is being leased back to Mercury.
2. Clear Channel Communications, Inc. ("CCC") invested $500,000 in Radio
Data Group.
3. Clear Channel Communications, Inc. ("CCC") made a $500,000 investment
in the San Antonio Spurs professional basketball team.
4. In May of 1995, Clear Channel Radio, Inc. made an investment, now worth
$73,241,896, in the Australian Radio Network.
5. In May of 1995, Clear Channel Radio, Inc. made an investment, now worth
$128,024,699, in Heftel Broadcasting Corporation.
6. In October of 1984, Clear Channel Communications, Inc. made an
investment, now worth $83,733, in a joint venture with Swanco
Broadcasting, Inc. to form the Oklahoma City Tower Company.
7. In 1973, Clear Channel Communications, Inc. made an investment, now
worth $44,162, in the Osage Tower in Tulsa, Oklahoma.
8. In October of 1989, Clear Channel Communications, Inc. made an
investment, now worth $289,657, in a joint venture with Encore Tower of
Austin, Inc. to form the Austin Tower Company.
9. In March of 1994, Clear Channel Radio, Inc. made an investment, now
worth $222,160, in the Senior Road Tower Group of Houston, Texas.
10. In 1992, Clear Channel Radio, Inc. made an investment, now worth
$90,000, in a joint venture with Host Broadcasting to broadcast
University of Kentucky sporting events.
11. In January of 1994, Clear Channel Radio, Inc. made an investment, now
worth $96,233, in a joint venture with Host Communications, Inc. to
broadcast University of Virginia sporting events.
13. In July 1996, Clear Channel Radio, Inc. made an investment now worth
$29,393,139 in New Zealand Radio Network.
14. In February 1997, Clear Channel Communications, Inc. made an investment
in a publically traded company at a cost of $14,080,186 with a fair
market value of $23,256,000.
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