THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
Among
BIG CITY RADIO, INC.
The Several Lenders
From Time to Time Parties Hereto
and
UBS AG, STAMFORD BRANCH,
as Agent
Dated as of October __, 2001
UBS WARBURG LLC, as Arranger
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS...............................................................................1
1.1 Defined Terms.............................................................................1
1.2 Other Definitional Provisions............................................................13
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS..........................................................13
2.1 Term Loan Commitments....................................................................13
2.2 Procedure for Term Loan Borrowing........................................................14
2.3 Repayment of Loans; Evidence of Debt.....................................................14
2.4 Optional Prepayments.....................................................................15
2.5 Mandatory Prepayments....................................................................15
2.6 Conversion and Continuation Options......................................................16
2.7 Minimum Amounts and Maximum Number of Tranches...........................................17
2.8 Interest Rates and Payment Dates.........................................................17
2.9 Computation of Interest and Fees.........................................................17
2.10 Inability to Determine Interest Rate.....................................................18
2.11 Pro Rata Treatment and Payments..........................................................18
2.12 Illegality...............................................................................19
2.13 Requirements of Law......................................................................20
2.14 Taxes....................................................................................21
2.15 Indemnity................................................................................23
2.16 Change of Lending Office or Replacement of Lender........................................23
2.17 Certain Fees.............................................................................23
SECTION 3. [Reserved]...............................................................................24
SECTION 4. REPRESENTATIONS AND WARRANTIES.......................................................24
4.1 Financial Condition......................................................................24
4.2 No Change................................................................................24
4.3 Corporate Existence; Compliance with Law.................................................25
4.4 Corporate Power; Authorization; Enforceable Obligations..................................25
4.5 No Legal Documents Bar...................................................................25
4.6 No Material Litigation...................................................................25
4.7 No Default...............................................................................26
4.8 Ownership of Property; Liens.............................................................26
4.9 Intellectual Property....................................................................26
4.10 No Burdensome Restrictions...............................................................26
4.11 Taxes....................................................................................26
4.12 Federal Regulations......................................................................26
4.13 ERISA....................................................................................27
4.14 Investment Company Act; Other Regulations................................................27
4.15 Subsidiaries.............................................................................27
4.16 Purpose of Loans.........................................................................27
4.17 Environmental Matters....................................................................27
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4.18 Solvency.................................................................................29
4.19 FCC Matters..............................................................................29
4.20 Asset Purchase Agreement.................................................................30
SECTION 5. CONDITIONS PRECEDENT.....................................................................30
5.1 Conditions to Effectiveness..............................................................30
5.2 Conditions to Funding....................................................................32
SECTION 6. AFFIRMATIVE COVENANTS....................................................................32
6.1 Financial Statements.....................................................................32
6.2 Certificates; Other Information..........................................................33
6.3 Payment of Obligations...................................................................34
6.4 Conduct of Business and Maintenance of Existence.........................................34
6.5 Maintenance of Property; Insurance.......................................................34
6.6 Inspection of Property; Books and Records; Discussions...................................34
6.7 Notices..................................................................................35
6.8 Environmental Laws.......................................................................35
6.9 Assignments of Leases....................................................................36
6.10 Asset Purchase Agreement.................................................................36
6.11 Further Assurances.......................................................................36
SECTION 7. NEGATIVE COVENANTS.......................................................................38
7.1 Minimum Consolidated EBITDA..............................................................38
7.2 Limitation on Indebtedness...............................................................38
7.3 Limitation on Liens......................................................................38
7.4 Limitation on Guarantee Obligations......................................................39
7.5 Limitation on Fundamental Changes........................................................39
7.6 Limitation on Sale of Assets.............................................................39
7.7 Limitation on Dividends..................................................................40
7.8 Limitation on Capital Expenditures.......................................................40
7.9 Limitation on Investments, Loans and Advances............................................40
7.10 Limitation on Optional Payments and Modifications of Debt Instruments or Agreements......41
7.11 Limitation on Transactions with Affiliates...............................................41
7.12 Limitation on Sales and Leasebacks.......................................................41
7.13 Limitation on Changes in Fiscal Year.....................................................41
7.14 Limitation on Negative Pledge Clauses....................................................41
7.15 Limitation on Lines of Business and Local Marketing and Sales Agreements.................42
7.16 Restrictions On Member and License Subsidiaries..........................................42
SECTION 8. EVENTS OF DEFAULT........................................................................42
SECTION 9. THE AGENT................................................................................45
9.1 Appointment..............................................................................45
9.2 Delegation of Duties.....................................................................46
9.3 Exculpatory Provisions...................................................................46
9.4 Reliance by Agent........................................................................46
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9.5 Notice of Default........................................................................47
9.6 Non-Reliance on Agent and Other Lenders..................................................47
9.7 Indemnification..........................................................................47
9.8 Agent in Its Individual Capacity.........................................................48
9.9 Successor Agent..........................................................................48
SECTION 10. MISCELLANEOUS............................................................................48
10.1 Amendments and Waivers...................................................................48
10.2 Notices..................................................................................49
10.3 No Waiver; Cumulative Remedies...........................................................50
10.4 Survival of Representations and Warranties...............................................50
10.5 Payment of Expenses and Taxes............................................................50
10.6 Successors and Assigns; Participations and Assignments...................................51
10.7 [Reserved]...............................................................................53
10.8 Counterparts.............................................................................53
10.9 Severability.............................................................................53
10.10 Integration..............................................................................53
10.11 GOVERNING LAW............................................................................54
10.12 Submission To Jurisdiction; Waivers......................................................54
10.13 Acknowledgements.........................................................................54
10.14 WAIVERS OF JURY TRIAL....................................................................55
SCHEDULES AND EXHIBITS
Schedule I Lenders, Addresses and Commitments
Schedule 4.2 Material Events Since December 31, 2000
Schedule 4.7 Material Contractual Defaults
Schedule 4.8 Liens
Schedule 4.15 Subsidiaries
Schedule 4.19 FCC Licenses and Permits
Schedule 4.20 Potential Impediments to Asset Sale
Schedule 7.2(g) Existing Indebtedness
Schedule 7.4 Guarantee Obligations
Schedule 7.9 Investments, Loans and Advances
Exhibit A Form of Note
Exhibit B Form of Closing Certificate
Exhibit C Form of Legal Opinion of Counsel to the Borrower
Exhibit D Form of Assignment and Acceptance
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THIRD AMENDED AND RESTATED
CREDIT AGREEMENT, dated as of October __,
2001, among BIG CITY RADIO, INC. a Delaware corporation (the BORROWER"), the
several banks and other financial institutions from time to time parties to this
Agreement (the "LENDERS") and UBS AG, STAMFORD BRANCH ("UBS"), as agent for the
Lenders hereunder (in such capacity, the "Agent").
WHEREAS, the Borrower, The Chase Manhattan Bank, a
New York banking
corporation ("CHASE"), and the lenders parties thereto (the "EXISTING LENDERS")
were parties to the Second Amended and Restated
Credit Agreement, dated as of
March 17, 1998 (as amended and waived to the date hereof, the "EXISTING
CREDIT
AGREEMENT"), pursuant to which the Existing Lenders made commitments and loans
to the Borrower for the purposes set forth therein; and
WHEREAS, immediately prior to the execution of this Agreement, Chase,
as agent and sole lender under the Existing
Credit Agreement, assigned all of
its right, title and interest thereunder to UBS in exchange for $800,000, which
sum represented the principal amount then outstanding thereunder, and
simultaneously therewith resigned as agent thereunder, and UBS was appointed as
successor Agent;
WHEREAS, under the terms of the assignment of the Existing
Credit
Agreement to UBS, Chase retains all of its right, title and interest in, and all
of its exposure and obligations under, the letters of credit issued under the
Existing
Credit Agreement, and neither the Agent nor any of the Lenders
hereunder have assumed any of Chase's obligations with respect to such letters
of credit, and all obligations related thereto are no longer covered by this
Agreement or the Collateral (as defined herein), nor are the Lenders risk
participants therein;
WHEREAS, UBS is being appointed Agent hereunder and will be the sole
Lender hereunder as of the date hereof;
WHEREAS, the Borrower desires to amend and restate the Existing
Credit
Agreement to convert the existing revolving facility into a term facility, and
the Agent and the Lenders are willing to amend and restate the Existing
Credit
Agreement, but only on the terms and conditions hereof;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, effective as of the Closing Date (as defined
herein), the parties hereto hereby amend and restate the Existing
Credit
Agreement as follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, the following terms shall
have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on
such day and (b) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. For purposes
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hereof: "PRIME RATE" shall mean the rate of interest per annum publicly
announced from time to time by the Agent as its prime rate in effect at its
principal office in
New York City (the Prime Rate not being intended to be the
lowest rate of interest charged by UBS in connection with extensions of credit
to debtors); and "FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of
New
York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions received by the
Agent from three federal funds brokers of recognized standing selected by it.
Any change in the ABR due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the effective
day of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"ABR LOANS": Loans the rate of interest applicable to which is based
upon the ABR.
"AFFILIATE": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person. For purposes of this definition,
"control" of a Person means the power, directly or indirectly, either to (a)
vote 10% or more of the securities having ordinary voting power for the election
of directors of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"AFFILIATE LOAN": the $5,000,000-principal-amount loan made by ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ to the Borrower under that certain Promissory Note, dated May 8, 2001,
with a principal amount outstanding of $2,235,000.
"AGENT": UBS, as the agent for the Lenders under this Agreement and the
other Loan Documents, and any successor agent appointed in accordance with
subsection 9.9.
"AGGREGATE LOAN OUTSTANDING ": as to any Lender at any time, an amount
equal to the aggregate principal amount of the Loan made by such Lender then
outstanding.
"AGREEMENT": this Third Amended and Restated Credit Agreement, as
amended, supplemented or otherwise modified from time to time.
"APPLICABLE MARGIN": the rate per annum set forth in the table below:
Before On and after
January 15, 2002 January 15, 2002
ABR Loans 2.00% 3.00%
Eurodollar Loans 3.00% 4.00%
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"ASSET SALE" and "ASSET PURCHASE AGREEMENT": the sale by the Borrower
and Big City Radio-Phoenix, L.L.C. of certain assets relating to Phoenix-area
radio stations to HBC Phoenix, Inc. and HBC License Corporation in accordance
with that certain Asset Purchase Agreement, dated as of September 4, 2001 (the
"ASSET PURCHASE AGREEMENT"), and related documents.
"ASSIGNEE": as defined in subsection 10.6(c).
"ASSIGNMENT OF LEASES": any Assignment of Lease executed at any time by
the Borrower or any Subsidiary in favor of the Agent for the benefit of the
Lenders in form and substance reasonably satisfactory to the Agent as the same
may be amended, supplemented or otherwise modified from time to time.
"BOARD": the Board of Governors of the Federal Reserve System (and any
successor thereto).
"BORROWER": as defined in the recitals hereto.
"BORROWING DATE": any Business Day, not later than October 15, 2001,
specified in a notice pursuant to subsection 2.2(a) as a date on which the
Borrower requests the Lenders to make Loans hereunder.
"BUSINESS": as defined in subsection 4.17(b).
"BUSINESS DAY": a day other than a Saturday, Sunday or other day on
which commercial banks in
New York City are authorized or required by law to
close.
"CAPITAL STOCK": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants or options to purchase any of the foregoing.
"CASH EQUIVALENTS": securities with maturities of one year or less from
the date of acquisition issued or fully guaranteed or insured by the United
States Government or any agency thereof; certificates of deposit and eurodollar
time deposits with maturities of one year or less from the date of acquisition
and overnight bank deposits of any Lender or of any commercial bank having
capital and surplus in excess of $500,000,000; (c) repurchase obligations of any
Lender or of any commercial bank satisfying the requirements, of clause (b) of
this definition, having a term of not more than 30 days with respect to
securities issued or fully guaranteed or insured by the United States
Government; (d) commercial paper of a domestic issuer rated at least A-2 by S&P
or P-2 by ▇▇▇▇▇'▇; (e) securities with maturities of one year or less from the
date of acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States, by any political subdivision or taxing authority
of any such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by ▇▇▇▇▇'▇; securities with maturities of one year or less from the
date of acquisition backed by standby letters of
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credit issued by any Lender or any commercial bank satisfying the requirements
of clause (b) of this definition; or (g) shares of money market mutual or
similar funds which invest exclusively in assets satisfying the requirements of
clauses (a) through (f) of this definition.
"CHASE": The Chase Manhattan Bank.
"CLOSING DATE": a date not later than October 15, 2001 on which the
conditions precedent set forth in subsection 5.1 shall have been satisfied.
"CODE": the Internal Revenue Code of 1986, as amended from time to
time.
"COLLATERAL": all assets of the Loan Parties, now owned or hereinafter
acquired, upon which a Lien is purported to be created by any Security Document.
"COMMITMENT": as to any Lender, the obligation of such Lender to make
Loans to the Borrower hereunder in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender's name on
Schedule I.
"COMMITMENT PERCENTAGE": as to any Lender at any time, the percentage
that such Lender's Commitment bears to the aggregate Commitments (or, at any
time after the Commitments shall have expired or terminated, the percentage that
the aggregate principal amount of such Lender's Loans then outstanding bears to
the aggregate principal amount of all Loans then outstanding).
"COMMITMENT PERIOD": the period from and including the Closing Date to
but not including the Expiration Date, or such earlier date on which the
Commitments shall terminate as provided herein.
"COMMONLY CONTROLLED ENTITY": any trade or business, whether or not
incorporated, which is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group which includes the Borrower and
which is treated as a single employer under Section 414 of the Code.
"COMMUNICATIONS ACT": the Communications Act of 1934, as amended, or
any other successor statute or statutes thereto, and all rules, regulations,
written policies, orders and decisions of the FCC thereunder, in each case as
from time to time in effect.
"CONSOLIDATED NET INCOME": for any period, net income of the Borrower
and its Subsidiaries, determined on a consolidated basis in accordance with
GAAP.
"CONTRACTUAL OBLIGATION": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
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"DEFAULT": any of the events specified in Section 8, whether or not any
requirement for the giving of notice, the lapse of time, or both, or any other
condition, has been satisfied.
"DOLLARS" and "$": dollars in lawful currency of the United States of
America.
"EBITDA": with respect to the Borrower and its Subsidiaries, for any
period, the sum of (a) the Consolidated Net Income for such period, PLUS (b) to
the extent deducted in computing such net income, the sum of (i) income tax
expense, (ii) interest expense (including deferred interest expense), (iii)
depreciation and amortization expense, and (iv) any extraordinary losses, and
MINUS (c) to the extent added in computing such net income, (i) any interest
income and (ii) any extraordinary gains, all as determined with respect to the
Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP.
"ENVIRONMENTAL LAWS": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"EUROCURRENCY RESERVE REQUIREMENTS": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates (expressed as
a decimal fraction) of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of such Board) maintained by a member bank of such system.
"EURODOLLAR BASE RATE": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum equal to the rate at
which UBS is offered Dollar deposits at or about 10:00 a.m.,
New York City time,
two Business Days prior to the beginning of such Interest Period in the
interbank eurodollar market where the eurodollar and foreign currency and
exchange operations in respect of its Eurodollar Loans are then being conducted
for delivery on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of its Eurodollar
Loan to be outstanding during such Interest Period.
"EURODOLLAR LOANS": Loans the rate of interest applicable to which is
based upon the Eurodollar Rate.
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"EURODOLLAR RATE": with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, a rate per annum determined for such day in
accordance with the following formula (rounded upward to the nearest 1/100th
of 1%):
Eurodollar Base Rate
---------------------------------------------------
1.00 - Eurocurrency Reserve Requirement
"EVENT OF DEFAULT": any of the events specified in Section 8, PROVIDED
that any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"EXISTING CREDIT AGREEMENT": as defined in the recitals hereto.
"EXISTING LENDERS": as defined in the recitals hereto.
"EXISTING LOANS": as defined in subsection 2.1(b).
"EXPIRATION DATE": October 15, 2001.
"FCC": the Federal Communications Commission or any successor to the
functions and powers thereof.
"FCC ASSIGNMENT APPLICATIONS": the application for consent to the
assignment of the FCC Licenses with respect to KEDJ, KDDJ, KBZR, KSSL and
KSSL-FM1 from Big City-Phoenix, L.L.C. to HBC License Corporation which was
accepted for filing with the FCC as of September 12, 2001.
"FCC LICENSES": with respect to any radio station owned or operated by
the Borrower or any Subsidiary, all FCC licenses, permits and approvals
necessary for the lawful construction of facilities for, and operation of, such
radio station.
"FCC ORDER": as defined in the Asset Purchase Agreement.
"FCC RULES": as defined in subsection 4.19.
"FDIC": the Federal Deposit Insurance Corporation.
"FINAL ORDERS": with respect to the assignment of any FCC License or
transfer of control of any radio station authorized by such FCC License from one
Person to another, an order by the FCC consenting to such assignment or
transfer, in the case of a pro forma assignment or transfer of control not
involving a substantial change in ownership or control, when effective and, in
the case of all other assignments or transfers of control, when the time for
administrative or judicial review has expired and the time for the filing of any
protest, petition to deny, request for stay, petition for reconsideration, or
appeal has expired and no protest, petition to deny, request for stay, petition
for reconsideration or appeal is pending.
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"FINANCING LEASE": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
"FORESTRY SERVICE LICENSE": the license in respect of the right to
operate the radio transmitter located on that certain parcel of land situated
within the Angeles National Forest.
"GAAP": generally accepted accounting principles in the United States
of America in effect from time to time.
"GOVERNMENTAL AUTHORITY": any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"GUARANTEE OBLIGATION": as to any Person (the "GUARANTEEING PERSON"),
any obligation of (a) the guaranteeing person or (b) another Person to induce
the creation of which the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other obligations (the
"PRIMARY OBLIGATIONS") of any other third Person (the "PRIMARY OBLIGOR") in any
manner, whether directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof, PROVIDED, HOWEVER, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the lower
of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made, and (b) the
maximum amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good
faith.
"INDEBTEDNESS": of any Person at any date, (a) all indebtedness of such
Person for borrowed money or for the deferred purchase price of property or
services (other than current trade liabilities incurred in the ordinary course
of business and payable in accordance with customary practices); (b) any other
indebtedness of such Person that is evidenced by a note, bond, debenture or
similar instrument; (c) all
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obligations of such Person under Financing Leases; (d) all obligations of such
Person in respect of acceptances or Letters of Credit issued or created for the
account of such Person; (e) all obligations of such Person in respect of
banker's acceptances issued or created for the account of such Person; and all
liabilities secured by any Lien on any property owned by such Person even though
such Person has not assumed or otherwise become liable for the payment thereof.
For purposes of any calculation hereunder, the amount of any Indebtedness
outstanding at any time, except Indebtedness under clause (f) of this
definition, shall be deemed to be equal to the then outstanding principal amount
of such Indebtedness (including, with respect to Financing Leases, the implied
principal amount thereof calculated in accordance with GAAP), and the amount of
any Indebtedness outstanding at any time under clause (f) of this definition
shall be equal to the lesser of (i) the then outstanding principal amount of,
and all accrued and unpaid interest on, the liability secured by the applicable
property and (ii) the then fair market value of such property.
"INSOLVENCY": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"INSOLVENT": pertaining to a condition of Insolvency.
"INTEREST PAYMENT DATE": (a) as to any ABR Loan, the last day of each
March, June, September and December, (b) as to any Eurodollar Loan, the last day
of such Interest Period.
"INTEREST PERIOD": with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurodollar Loan and ending one
week, or one, two, or three months thereafter, as selected by the Borrower in
its request of borrowing or notice of conversion, as the case may be, given with
respect thereto; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending one
week, or one, two or three months thereafter, as selected by the Borrower by
irrevocable notice to the Agent not less than three Business Days prior to the
last day of the then current Interest Period with respect thereto;
PROVIDED that, all of the foregoing provisions relating to Interest Periods are
subject to the following:
(i) if any Interest Period pertaining to a Eurodollar Loan would
otherwise end on a day that is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless the result of
such extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end on the
immediately preceding Business Day;
(ii) the Borrower may not choose an Interest Period that extends
beyond the Termination Date; and
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(iii) any Interest Period pertaining to a Eurodollar Loan that
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of a calendar
month.
"LANDLORD'S CONSENT": A Landlord's Consent executed at any time by a
landlord in respect of any leased property subject to any Assignment of Lease,
in form and substance reasonably satisfactory to the Agent, as the same may be
amended, supplemented or otherwise amended from time to time.
"LICENSES": as defined in subsection 4.19.
"LICENSE SUBSIDIARY": any wholly-owned sole-purpose Subsidiary Loan
Party of the Borrower formed for the exclusive purpose of holding FCC Licenses
pursuant to organizational documents reasonably satisfactory to the Agent.
"LIEN": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever which makes any property or asset
available for the payment or performance of any liability in priority to the
payment or performance of ordinary unsecured creditors (including, without
limitation, any conditional sale or other title retention agreement and any
Financing Lease having substantially the same economic effect as any of the
foregoing).
"LOAN": any loan made by any Lender pursuant to this Agreement.
"LOAN DOCUMENTS": this Agreement, any Notes, and the Security
Documents.
"LOAN PARTIES": the Borrower and any of its Subsidiaries that is a
party to a Loan Document.
"LOCAL MARKETING AND SALES AGREEMENT": as to any Person, all agreements
to which such Person is a party pursuant to which such Person has the right to
direct the programming with respect to a radio station (and related FCC License)
owned by another Person and/or pursuant to which such Person has the right to
sell advertising in connection with a radio station (and related FCC License)
owned by another Person.
"MATERIAL ADVERSE EFFECT": a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of the
Borrower and its Subsidiaries taken as a whole or (b) the validity or
enforceability of this Agreement or any of the other Loan Documents or the
rights or remedies of the Agent or the Lenders hereunder or thereunder.
"MATERIAL ENVIRONMENTAL AMOUNT": an amount finally determined by legal
process or executed settlement agreement to be payable by any Loan Party in
excess of
9
$2,500,000 for remedial costs, compliance costs, compensatory damages, punitive
damages, fines, penalties or any combination thereof.
"MATERIALS OF ENVIRONMENTAL CONCERN": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"MEMBER": the collective reference to the Borrower and any wholly-owned
Subsidiary Loan Party of the Borrower that is a member in, or partner of, any
License Subsidiary.
"MOODY'S": ▇▇▇▇▇'▇ Investors Service, Inc.
"MULTIEMPLOYER PLAN": a Plan which is a multiemployer plan as defined
in Section 400 1(a)(3) of ERISA.
"NON-EXCLUDED TAXES": as defined in subsection 2.14.
"NOTE": as defined in subsection 2.3(e).
"OBLIGATIONS": the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans and
interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) the Loans or any Notes and all other obligations
and liabilities of the Borrower to the Agent or to the Lenders, whether direct
or indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, that may arise under, out of, or in connection with, this
Agreement, any Notes or the other Loan Documents and any other document made,
delivered or given in connection therewith or herewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all reasonable fees and disbursements
of counsel to the Agent or to the Lenders that are required to be paid by the
Borrower pursuant to the terms of this Agreement) or otherwise.
"OPERATING AGREEMENT": each of the respective Assignment and Use
Agreements, between the Borrower and Big City Radio-Phoenix, L.L.C., Big City
Radio-LA, L.L.C., Big City Radio-NYC, L.L.C., Big City Radio-Chi, L.L.C., and
WRKL Rockland Radio, L.L.C., whereby the Borrower assigned the various FCC
Licenses to the License Subsidiaries, in the form of Exhibit F attached hereto.
"PARTICIPANT": as defined in subsection 10.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
10
"PERSON": an individual, partnership, limited liability company,
corporation, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"PLAN": at a particular time, any employee benefit plan that is covered
by ERISA and in respect of which the Borrower or a Commonly Controlled Entity is
(or, if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"PROPERTIES": as defined in subsection 4.17(a).
"REGISTER": as defined in subsection 10.6(d).
"REGULATIONS T, U, AND X": Regulations T, U, and X of the Board as in
effect from time to time.
"REORGANIZATION": with respect to any Multiemployer Plan, the condition
that such plan is in reorganization within the meaning of Section 4241 of ERISA.
"REPORTABLE EVENT": any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections 13, 14, 16, 18, 19 or 20 of PBGC Reg. 2615. "REQUIRED
LENDERS": at any time, Lenders the Commitment Percentages of which aggregate
more than 50%.
"REQUIREMENT OF LAW": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"RESPONSIBLE OFFICER": the chief executive officer, the president and
any vice president of the Borrower, or, with respect to financial matters, the
chief financial officer of the Borrower.
"SEC": the Securities and Exchange Commission, or any successor federal
agency.
"SECURITY AGREEMENT": the Second Amended and Restated Security
Agreement, dated October __, 2001, executed by the Borrower and its
Subsidiaries, as the same may be amended, supplemented or otherwise modified
from time to time.
"SECURITY DOCUMENTS": the collective reference to the Security
Agreement and, from and after its execution and delivery, any Assignment of
Lease, control agreement, or any other agreement provided to the Agent in
connection with the granting of collateral to secure the Loans.
11
"SENIOR NOTES": the Borrower's 11.25% Senior Discount Notes due 2005,
issued under that certain Indenture, dated as of March 17, 1998 (the "SENIOR
NOTES INDENTURE"), among the Borrower, the Subsidiary Guarantors (defined
therein), and First Trust National Association, as trustee.
"SINGLE EMPLOYER PLAN": any Plan which is covered by Title IV of ERISA,
but which is not a Multiemployer Plan.
"S&P": Standard and Poor's Ratings Services.
"STATIONS": any of the radio stations now owned or operated by or
hereafter acquired or operated by the Borrower or any of its Subsidiaries.
"SUBORDINATED INDEBTEDNESS": any unsecured Indebtedness of the Borrower
no part of the principal of which is required to be paid (whether by way of
mandatory sinking fund, mandatory redemption, mandatory prepayment, acceleration
or otherwise) except in the event of a change of control or unapplied asset sale
proceeds, prior to December 31, 2004; the payment of the principal of and
interest on which and other obligations of the Borrower in respect thereof are
subordinated to the prior payment in full of the principal of and interest
(including post-petition interest) on the Loans and all other obligations and
liabilities of the Borrower to the Agent and the Lenders hereunder on terms and
conditions approved in writing by the Agent; having no financial maintenance
covenants or cross defaults and all other terms and conditions (including,
without limitation, interest rates, covenants, defeasance and defaults (which
shall not include a cross default)) which are satisfactory in form and substance
to the Agent (as evidenced by their prior written approval thereof).
"SUBSIDIARY": as to any Person, a corporation, limited liability
company, partnership or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, limited liability company, partnership or other entity are at the
time owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such Person. Unless
otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries" in
this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.
"TERMINATION DATE": March 1, 2002.
"TRANSFEREE": as defined in subsection 10.6(f).
"TYPE": as to any Loan, its nature as an ABR Loan or a Eurodollar Loan.
"UBS": UBS AG, Stamford Branch.
12
1.2 OTHER DEFINITIONAL PROVISIONS.
(a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the defined meanings when used in any Notes or any
certificate or other document made or delivered pursuant hereto.
(b) As used herein and in any Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Borrower and its Subsidiaries not defined in subsection 1.1 and accounting terms
partly defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 TERM LOAN COMMITMENTS.
(a) Subject to the terms and conditions hereof, each Lender severally
agrees to make a term loan to the Borrower in an aggregate principal amount that
does not exceed such Lender's Commitment (each a "LOAN" and collectively the
"LOANS") in one advance on the Borrowing Date in accordance with the terms and
conditions hereof. The principal amount of each Lender's Loan made on the
Borrowing Date shall be an amount equal to the product of (i) such Lender's
Commitment Percentage and (ii) $15,000,000.
(b) The Borrower acknowledges and confirms that the Existing Lenders
have made revolving credit commitments to Borrower aggregating $15,000,000 and
loans to Borrower thereunder in the amount outstanding of $800,000 (the
"EXISTING LOANS"), under the Existing Credit Agreement. The Borrower hereby
acknowledges and confirms that as of the date hereof the Existing Loan
constitutes Indebtedness under this Agreement and an Obligation of the Borrower
hereunder. The Borrower hereby represents, warrants, agrees, covenants and
reaffirms that: (i) to the extent arising on or prior to the Closing Date, it
has no, and it permanently and irrevocably waives, and releases the Agent, the
Lenders, and the Existing Lenders from, any defense, setoff, claim or
counterclaim against the Agent, the Lenders, or any Existing Lender in regard to
its Obligations in respect of such Existing Loans and (ii) acknowledges that it
has made separate arrangements with Chase providing for letters of credit issued
under the Existing Credit Agreement to be retained by Chase and such letters of
credit no longer are the subject of, and are not in any way related to, this
Agreement or secured by the Collateral.
13
(c) The Loans may from time to time be maintained as (i) Eurodollar
Loans, (ii) ABR Loans, or (iii) a combination thereof, as determined by the
Borrower and notified to the Agent in accordance with subsections 2.2 and 2.8,
PROVIDED that no Loan shall be made as a Eurodollar Loan after the day that is
one month prior to the Termination Date or after a Default shall have occurred.
2.2 PROCEDURE FOR TERM LOAN BORROWING.
(a) NOTICE OF BORROWING. When the Borrower desires to borrow under
subsection 2.1, it shall deliver to the Agent a Notice of Borrowing no later
than 11:00 a.m. (
New York time), at least one Business Day in advance of the
date of the proposed Borrowing Date or such later date as shall be agreed to by
the Agent. The Notice of Borrowing shall specify the proposed Borrowing Date
(which shall be a Business Day). Upon receipt of such Notice of Borrowing, the
Agent shall promptly notify each Lender of its share of the Loan and the other
matters covered by the Notice of Borrowing. Such Lender's share of the Loan
shall be determined by reference to the quotient of such Lender's unfunded
Commitment, divided by the aggregate amount of all unfunded Commitments. All
Loans shall be funded on a pro rata basis by the Lenders as aforesaid.
(b) DISBURSEMENT OF FUNDS. No later than 12:00 p.m. (
New York time) on
the Borrowing Date, each Lender will make available its pro rata share of the
Loan requested to be made on such date in the manner provided below. All amounts
shall be made available to the Agent in Dollars and immediately available funds
at the Agent's Office and the Agent promptly will deliver by wire transfer, to
the account designated by the Borrower, the aggregate of the amounts so made
available in the type of funds received.
(c) TERMINATION OF COMMITMENTS. The Commitments hereunder shall
terminate on the earlier of the Borrowing Date and the Expiration Date, unless
terminated earlier in accordance with Section 8.
(d) PRO RATA BORROWINGS. The Loans made under this Agreement shall be
made by the Lenders PRO RATA on the basis of their respective Commitments. It is
understood that no Lender shall be responsible for any default by any other
Lender of its obligation to make its portion of the Loans hereunder and that
each Lender shall be obligated to make its portion of the Loans hereunder,
regardless of the failure of any other Lender to fulfill its commitments
hereunder.
2.3 REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) The Borrower hereby unconditionally promises to pay to the Agent
for the account of each Lender the then unpaid principal amount of each Loan of
such Lender on the Termination Date (or such earlier date on which the Loans
become due and payable pursuant to subsection 2.5or Section 8). The Borrower
hereby further agrees to pay interest on the unpaid principal amount of the
Loans from time to time outstanding
14
from the date hereof until payment in full thereof at the rates per annum, and
on the dates, set forth in subsection 2.8.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(c) The Agent, acting for this purpose as an agent of the Borrower,
shall maintain the Register pursuant to subsection 10.6(d), and a subaccount
therein for each Lender, in which shall be recorded (i) the amount of each Loan
made hereunder, the Type thereof and, in the case of Eurodollar Loans, each
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder, (iii) both the amount of any sum received by the Agent hereunder from
the Borrower and each Lender's share thereof and (iv) each continuation of a
Loan and each conversion of all or a portion of a Loan thereof to another Type.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 2.3(b) shall, to the extent permitted by
applicable law, be PRIMA FACIE evidence of the existence and amounts of the
obligations of the Borrower therein recorded; PROVIDED HOWEVER, that the failure
of any Lender or the Agent to maintain the Register or any such account, or any
error therein, shall not in any manner affect the obligation of the Borrower to
repay (with applicable interest) the Loans made to such Borrower by such Lender
in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the Agent by any
Lender, the Borrower will execute and deliver to such Lender a promissory note
of the Borrower evidencing the Loan of such Lender, substantially in the form of
Exhibit A with appropriate insertions as to date and principal amount (a
"NOTE").
2.4 OPTIONAL PREPAYMENTS. The Borrower may, subject to subsection 2.15,
at any time and from time to time prepay the Loans, in whole or in part, without
premium or penalty, upon at least three Business Days' irrevocable notice to the
Agent, specifying the date and amount of prepayment and whether the prepayment
is of Eurodollar Loans, ABR Loans or a combination thereof, and, if of a
combination thereof, the amount allocable to each. Upon receipt of any such
notice the Agent shall promptly notify each Lender thereof. If any such notice
is given, the amount specified in such notice shall be due and payable on the
date specified therein, together with any amounts payable pursuant to
subsections 2.15 and 2.17.
2.5 MANDATORY PREPAYMENTS.
(a) The Borrower shall prepay the Loans, to the extent of the total
amounts due hereunder, including interest and fees, in an amount equal to (i)
100% of the net proceeds received from the sale or other disposition of all or
any part of the assets of the Borrower or any of its Subsidiaries; (ii) 100% of
the net proceeds received by the
15
Borrower or any of its Subsidiaries from the issuance of debt or preferred
stock; (iii) 100% of the net proceeds received from the issuance of common
equity (including upon the exercise of warrants and options), by the Borrower or
any of its Subsidiaries; (iv) 100% of all insurance recoveries in excess of
amounts applied promptly to replace or restore any properties in respect of
which such proceeds are paid to the Borrower and its subsidiaries. In addition,
all amounts then owing under this Agreement (including all principal, interest,
fees and expenses) shall become due and payable upon the earlier of (a) the
termination of the Asset Purchase Agreement, and (b)(i) the FCC's denial of the
FCC Assignment Applications, or the failure of the FCC Assignment Application
or, if granted, the FCC Order to remain pending or in full force and effect, or
the FCC's determination to reconsider or review any grant of the FCC Assignment
Application; or (ii) the filing by any Person of a petition to deny or other
objection (that the Agent determines, in its sole discretion, to be material),
to the FCC Assignment Application, or any petition for reconsideration, petition
for review, request for stay, or other request for appeal, with respect to the
FCC's grant of the FCC Assignment Application, unless in any case the Borrower
has reasonable grounds to believe that it will prevail in challenging any such
event in (b)(i) or (b)(ii) and Borrower is continuing to diligently pursue its
alternatives with respect thereto.
(b) Unless the Borrower indicates otherwise, the mandatory prepayments
pursuant to this subsection 2.5 shall first be used to prepay the then
outstanding ABR Loans made to the Borrower and second to prepay the then
outstanding Eurodollar Loans made to the Borrower in the order in which such
Eurodollar Loans become due.
(c) The provisions of subsections 2.15 and 2.17 shall apply to all
mandatory prepayments pursuant to this subsection 2.5.
2.6 CONVERSION AND CONTINUATION OPTIONS.
(a) The Borrower may elect from time to time to convert Eurodollar
Loans to ABR Loans by giving the Agent at least two Business Days' prior
irrevocable notice of such election, provided that any such conversion of
Eurodollar Loans may only be made on the last day of an Interest Period with
respect thereto. The Borrower may elect from time to time to convert ABR Loans
to Eurodollar Loans by giving the Agent at least three Business Days' prior
irrevocable notice of such election. Any such notice of conversion to Eurodollar
Loans shall specify the length of the initial Interest Period or Interest
Periods therefor. Upon receipt of any such notice the Agent shall promptly
notify each Lender thereof. All or any part of outstanding Eurodollar Loans and
ABR Loans may be converted as provided herein, HOWEVER, no Loan may be converted
into a Eurodollar Loan under any of the following circumstances: (i) a Default
has occurred and is continuing, (ii) the conversion date occurs any time after
the date that is one month prior to the Termination Date, and (iii) the
applicable Interest Period expires on or after the Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower giving
16
notice to the Agent, in accordance with the applicable provisions of the term
"Interest Period" set forth in subsection 1.1, of the length of the next
Interest Period to be applicable to such Loans; HOWEVER, no Eurodollar Loan may
be continued as such under any of the following circumstances: (i) a Default has
occurred and is continuing, (ii) the conversion date occurs any time after the
date that is one month prior to the Termination Date, and (iii) the applicable
Interest Period expires on or after the Termination Date. If the Borrower fails
to give such notice or if such continuation is not permitted such Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period.
2.7 MINIMUM AMOUNTS AND MAXIMUM NUMBER OF TRANCHES. All borrowings,
conversions and continuations of Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal amount
of the Loans comprising each Eurodollar borrowing shall be equal to $500,000 or
a whole multiple of $100,000 in excess thereof. In no event shall there be more
than three Eurodollar Loans outstanding at any time.
2.8 INTEREST RATES AND PAYMENT DATES.
(a) Each Eurodollar Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the Eurodollar
Rate determined for such day plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to the
ABR plus the Applicable Margin.
(c) If all or a portion of (i) any principal of any Loan, (ii) any
interest payable thereon, (iii) any commitment fee, or (iv) any other amount
payable hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), the principal of the Loans and any such overdue
interest, commitment fee or other amount shall bear interest at a rate per annum
that is (x) in the case of the overdue principal, the prevailing rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
subsection 2.8(c) plus 2%, or (y) in the case of any such overdue interest,
commitment fee or other amount, the rate described in subsection 2.8(b) plus 2%,
in each case from the date of such nonpayment until such overdue principal,
interest, commitment fee or other amount is paid in full (as well after as
before judgment).
(d) Interest shall be payable in arrears on each Interest Payment Date,
PROVIDED that interest accruing pursuant to subsection 2.8(c) shall be payable
from time to time on demand.
2.9 COMPUTATION OF INTEREST AND FEES.
(a) Whenever it is calculated on the basis of the Prime Rate, interest
shall be calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed; otherwise, interest and fees shall be
calculated on the basis of a 360-
17
day year for the actual days elapsed. The Agent shall as soon as practicable
notify the Borrower and the Lenders of each determination of a Eurodollar Rate.
Any change in the interest rate on a Loan resulting from a change in the ABR or
the Eurocurrency Reserve Requirements shall become effective as of the opening
of business on the day on which such change becomes effective. The Agent shall
as soon as practicable notify the Borrower and the Lenders of the effective date
and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and
the Lenders in the absence of manifest error. The Agent shall, at the request of
the Borrower, deliver to the Borrower a statement showing the quotations used by
the Agent in determining any interest rate pursuant to subsections 2.8(a) or
2.8(b).
2.10 INABILITY TO DETERMINE INTEREST RATE. If prior to the first day of
any Interest Period:
(a) the Agent shall have determined (which determination, in the
absence of manifest error, shall, be conclusive and binding upon the Borrower)
that, by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, or
(b) the Agent shall have received notice from the Required Lenders that
the Eurodollar Rate determined or to be determined for such Interest Period will
not adequately and fairly reflect the cost to such Lenders (as conclusively
certified by such Lenders) of making or maintaining their affected Loans during
such Interest Period, the Agent shall give facsimile or telephonic notice
thereof to the Borrower and the Lenders as soon as practicable thereafter. If
such notice is given (x) any Eurodollar Loans requested to be made on the first
day of such Interest Period shall be made as ABR Loans (provided that prior to
1:00 p.m. on the Business Day preceding the first day of such Interest Period,
the Borrower may revoke its notice of borrowing, in which case no such Loans
shall be made), (y) any Loans that were to have been converted on the first day
of such Interest Period to Eurodollar Loans that were to be continued as such
for such Interest Period, shall be converted to or continued as ABR Loans and
(z) any outstanding Eurodollar Loans that were to be continued as such for such
Interest Period shall be converted, on the first day of such Interest Period, to
ABR Loans. Until such notice has been withdrawn by the Agent, no further
Eurodollar Loans shall be made or continued as such, nor shall the Borrower have
the right to convert ABR Loans to Eurodollar Loans. The Agent agrees to withdraw
any such notice as soon as reasonably practicable after the Agent is notified of
a change in circumstances which makes such notice inapplicable.
2.11 PRO RATA TREATMENT AND PAYMENTS.
(a) The borrowing by the Borrower from the Lenders hereunder and each
payment by the Borrower on account of principal of and interest on the Loans
shall be made pro rata according to the respective outstanding principal amounts
of the Loans
18
then held by the Lenders. All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without set off or counterclaim and shall be made prior
to 12:00 Noon,
New York City time, on the due date thereof to the Agent, for the
account of the Lenders, at the Agent's office specified in subsection 10.2, in
Dollars and in immediately available funds. The Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. If any
payment hereunder (other than payments on any Eurodollar Loan) becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension. If any payment on a Eurodollar Loan becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day, and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension,
unless the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding Business Day.
(b) Unless the Agent shall have been notified in writing by any Lender
prior to a borrowing that such Lender will not make the amount that would
constitute its Commitment Percentage of such borrowing available to the Agent,
the Agent may assume that such Lender is making such amount available to the
Agent, and the Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such amount is not made available to the
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Agent, on demand, such amount with interest thereon at a rate equal to
the daily average Federal Funds Effective Rate (as defined in the subsection 1.1
definition of "ABR") for the period until such Lender makes such amount
immediately available to the Agent. A certificate of the Agent submitted to any
Lender with respect to any amounts owing under this subsection 2.11 shall be
conclusive in the absence of manifest error. If such Lender's Commitment
Percentage of such borrowing is not made available to the Agent by such Lender
within three Business Days of such Borrowing Date, the Agent shall also be
entitled to recover such amount with interest thereon at the rate per annum
applicable to ABR Loans hereunder, on demand, from the Borrower.
2.12 ILLEGALITY.
(a) Notwithstanding any other provision herein, if the adoption of or
any change in any Requirement of Law or in the interpretation or application
thereof shall make it unlawful for any Lender to make or maintain Eurodollar
Loans as contemplated by this Agreement, (i) such Lender shall promptly, after
becoming aware thereof, notify the Agent and the Borrower thereof, (ii) the
commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert ABR Loans to Eurodollar Loans shall
forthwith be cancelled and (iii) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to ABR Loans on the
respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law. If any such conversion
of a Eurodollar Loan occurs on a day which is not the last day of the then
current Interest Period with
19
respect thereto, the Borrower shall pay to such Lender such amounts, if any, as
may be required pursuant to subsection 2.15. If circumstances subsequently
change so that it is no longer unlawful for an affected Lender to make or
maintain Eurodollar Loans as contemplated hereunder, such Lender will, as soon
as reasonably practicable after such Lender knows of such change in
circumstances, notify the Borrower and the Agent, and upon receipt of such
notice, the obligations of such Lender to make or continue Eurodollar Loans or
to convert ABR Loans into Eurodollar Loans shall be reinstated.
(b) Each Lender agrees that, upon the occurrence of any event giving
rise to the operation of subsection 2.12(a) with respect to such Lender, it
will, if requested by the Borrower and to the extent permitted by law or by the
relevant Governmental Authority, endeavor in good faith to change the lending
office at which it books its Eurodollar Loans hereunder if such change would
make it lawful for such Lender to continue to make or maintain Eurodollar Loans
as contemplated hereunder; PROVIDED, HOWEVER, that such change can be made in
such a manner that such Lender, in its sole determination, suffers no increased
cost or economic, legal or regulatory disadvantage.
2.13 REQUIREMENTS OF LAW.
(a) If the adoption of or any change in any Requirement of Law or in
the interpretation or application thereof or compliance by any Lender with any
request or directive (whether or not having the force of law) from any central
bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Note, or any Eurodollar Loan made by it, or
change the basis of taxation of payments to such Lender in respect thereof
(except for Non-Excluded Taxes covered by subsection 2.14 and changes in
the rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or ay other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such
Lender, by an amount which such Lender deems to be material, of making,
converting into, continuing or maintaining Eurodollar Loans or to reduce
any amount receivable hereunder in respect thereof, then, in any such
case, the Borrower shall promptly pay such Lender such additional amount
or amounts as will compensate such Lender for such increased cost or
reduced amount receivable.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such
20
Lender with any request or directive regarding capital adequacy (whether or not
having the force of law) from any Governmental Authority made subsequent to the
date hereof shall have the effect of reducing the rate of return on such
Lender's or such corporation's capital as a consequence of its obligations
hereunder to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, the
Borrower shall promptly pay to such Lender such additional amount or amounts as
will compensate such Lender for such reduction. If any Lender becomes entitled
to claim any additional amounts pursuant to this subsection 2.13(a), it shall
promptly notify the Borrower (with a copy to the Agent) of the event by reason
of which it has become so entitled. Notwithstanding any other provision of this
subsection 2.13, no Lender shall demand compensation for any increased cost or
reduction referred to above if it shall not at the time be the general policy or
practice of such Lender to demand such compensation in similar circumstances
under comparable provisions of other credit agreements, if any.
(c) A certificate as to any additional amounts payable pursuant to this
subsection 2.13 submitted by such Lender to the Borrower (with a copy to the
Agent) shall be conclusive in the absence of manifest error. The agreements in
this subsection 2.13 shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
2.14 TAXES.
(a) All payments made by the Borrower under this Agreement and any
Notes shall be made free and clear of, and without deduction or withholding for
or on account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental Authority,
excluding (i) any taxes imposed by jurisdictions outside of the United States of
America, (ii) any taxes imposed by the United States or any political
subdivision thereof by means of withholding at the source, if and to the extent
that such taxes shall be in effect and shall be applicable on the date hereof,
to payments to be made to such lender, existing taxes on the date hereof and
(iii) any net income taxes and franchise taxes (imposed in lieu of net income
taxes), imposed on the Agent or any Lender as a result of a present or former
connection between the Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
the Agent or such Lender having executed, delivered or performed its obligations
or received a payment under, or enforced, this Agreement or any Note). If any
such non-excluded taxes, levies, imposts, duties, charges, fees deductions or
withholdings ("NON-EXCLUDED TAXES") are required to be withheld from any amounts
payable to the Agent or ,any Lender hereunder or under any Note, the amounts so
payable to the Agent or such Lender shall be increased to the extent necessary
to yield to the Agent or such Lender (after payment of all Non-Excluded Taxes)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement, PROVIDED, HOWEVER, that the Borrower shall
not be
21
required to increase any such amounts payable to any Lender that is not
organized under the laws of the United States of America or a state thereof if
such Lender fails to comply with the requirements of subsection 2.14(b).
Whenever any Non-Excluded Taxes are payable by the Borrower, as promptly as
possible thereafter the Borrower shall send to the Agent for its own account or
for the account of such Lender, as the case may be, a certified copy of an
original official receipt received by the Borrower showing payment thereof. If
the Borrower fails to pay any Non-Excluded Taxes when due to the appropriate
taxing authority or fails to remit to the Agent the required receipts or other
required documentary evidence, the Borrower shall indemnify the Agent and the
Lenders for any incremental taxes, interest or penalties that may become payable
by the Agent or any Lender as a result of any such failure. The agreements in
this subsection 2.14 shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(i) deliver to the Borrower and the Agent (A) two duly completed
copies of United States Internal Revenue Service Form W-8BEN or W-8ECI, or
successor applicable form, as the case may be, and (B) an Internal Revenue
Service Form W-8 or W-9, or successor applicable form, as the case may be;
(ii) deliver to the Borrower and the Agent two further copies of
any such form or certification on or before the date that any such form or
certification expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recent form previously delivered by
it to the Borrower; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the Borrower or
the Agent;
unless in any such case an event (including, without limitation, any
change in treaty, law or regulation) has occurred prior to the date on
which any such delivery would otherwise be required which renders all such
forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form with respect to it and such Lender so advises
the Borrower and the Agent. Such Lender shall certify (i) in the case of a
Form W-8BEN or W-8ECI, that it is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal
income taxes and (ii) in the case of a Form W-8 or W-9, that it is
entitled to an exemption from United States backup withholding tax. Each
Person that shall become a Lender or a Participant pursuant to subsection
10.6 shall, upon the effectiveness of the related transfer, be required to
provide all of the forms and statements required pursuant to this
subsection 2.14, provided that in the case of a Participant such
Participant shall furnish all such required forms and statements to the
Lender from which the related participation shall have been purchased.
22
2.15 INDEMNITY. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment after the
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a prepayment of Eurodollar Loans on a day which
is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Bank on such amount by placing such amount on deposit
for a comparable period with leading banks in the interbank eurodollar market.
This covenant shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
2.16 CHANGE OF LENDING OFFICE OR REPLACEMENT OF LENDER.
(a) Each Lender agrees that if it makes any demand for payment under
subsection 2.13 or 2.14(a), or if any adoption or change of the type described
in subsection 2.13 shall occur with respect to it, it will use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions and so long as such efforts would not be disadvantageous to it, as
determined in its sole discretion) to designate a different lending office if
the making of such a designation would reduce or obviate the need for the
Borrower to make payments under subsection 2.13 or 2.14(a), or would eliminate
or reduce the effect of any adoption or change described in subsection 2.13.
(b) If the Borrower becomes obligated to pay additional amounts
described in subsections 2.13 or 2.14(a) as a result of any condition described
in such subsections and payment of such amounts is demanded by any Lender, then
the Borrower may, on ten Business Days' prior written notice to the Agent and
such Lender, cause such Lender to (and such Lender shall) assign pursuant to
subsection 10.6 all of its rights and obligations under this Agreement to a
Lender or other entity selected by the Borrower for a purchase price equal to
the outstanding principal amount of such Lender's Loans and all accrued interest
and fees and losses and expenses of the types referred to in subsection 2.15,
provided, that in no event shall the assigning Lender be required to pay or
surrender to such purchasing Lender or other entity any of the fees received by
such assigning Lender pursuant to this Agreement.
2.17 CERTAIN FEES. On the dates provided therein, the Borrower agrees
to pay to the Agent for its own account the fees set forth in the Fee Letter of
even date herewith between the Borrower and the Agent.
23
SECTION 3. [RESERVED]
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into this Agreement and to
make the Loans, the Borrower hereby represents and warrants to the Agent and
each Lender that:
4.1 FINANCIAL CONDITION.
(a) The audited balance sheet of the Borrower as at December 31, 2000
and the related statements of operations and of cash flows for the year ended on
such date, reported on by KPMG Peat Marwick LLP, copies of which have heretofore
been furnished to each Lender, present fairly, in all material respects, the
financial condition of the Borrower as at such date, and the results of the
Borrower's operations and its cash flows for the year then ended.
(b) The unaudited balance sheet of the Borrower as at June 30, 2001 and
the related unaudited statements of operations and of cash flows for the
six-month period ended on such date, certified by a Responsible Officer, copies
of which have heretofore been furnished to each Lender, are complete and correct
and present fairly, in all material respects, the financial condition of the
Borrower as at such date, and the results of the Borrower's operations and its
cash flows for the six-month period then ended (subject to normal year-end audit
adjustments).
All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by such accountants or
Responsible Officer, as the case may be, and as disclosed therein). The Borrower
did not have, at the date of the most recent balance sheet referred to above,
any contingent liability or liability for taxes, or any long-term lease or
unusual forward or long-term commitment, including, without limitation, any
interest rate or foreign currency swap or exchange transaction, which is not
reflected in the foregoing statements or in the notes thereto. During the period
from December 31, 2000 to and including the date hereof, there has been no sale,
transfer or other disposition by the Borrower of any material part of its
business or property and no purchase or other acquisition of any business or
property (including any capital stock of any other Person) material in relation
to the financial condition of the Borrower at December 31, 2000.
4.2 NO CHANGE. Except as disclosed on Schedule 4.2 hereof or in the
Borrower's most recent Form 10-Q filed with the SEC, since December 31, 2000
there has been no development or event which has had or could reasonably be
expected to have a Material Adverse Effect, and during the period from December
31, 2000 to and including the date hereof no dividends or other distributions
have been declared, paid or made upon the Capital Stock of the Borrower nor has
any of the Capital Stock of the Borrower been redeemed, retired, purchased or
otherwise acquired for value by the Borrower.
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4.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW. The Borrower and each of
its Subsidiaries (a) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (b) has the corporate or
other power and authority, and the legal right, to own and operate its property,
to lease the property it operates as lessee and to conduct the business in which
it is currently engaged, (c) is duly qualified as a foreign corporation or other
entity and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law except in the cases of clauses (c) and (d) to the extent that the failure to
so qualify or comply therewith could not reasonably be expected, in the
aggregate, to have a Material Adverse Effect.
4.4 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. The
Borrower and each Subsidiary has the corporate or other power and authority, and
the legal right, to make, deliver and perform the Loan Documents to which it is
a party and, in the case of the Borrower, to borrow hereunder and has taken all
necessary corporate or other, action to authorize the borrowings on the terms
and conditions of this Agreement and each of the other Loan Documents and to
authorize the execution, delivery and performance of the Loan Documents to which
it is a party. No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of the Loan Documents to which
any Loan Party is a party other than (i) the consents of landlords to the
collateral assignments of leases pursuant to the Assignments of Leases and (ii)
any filings required by the Uniform Commercial Code in order to perfect and/or
insure the priority of Liens created pursuant to the Loan Documents. This
Agreement has been, and each other Loan Document to which any Loan Party is a
party will be, duly executed and delivered on behalf of such Loan Party. This
Agreement constitutes, and each other Loan Document to which any Loan Party is a
party when executed and delivered will constitute, a legal, valid and binding
obligation of such Loan Party enforceable against such Loan Party in accordance
with its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
4.5 NO LEGAL DOCUMENTS BAR. The execution, delivery and performance of
the Loan Documents to which any Loan Party is a party and the borrowings
hereunder will not violate any Requirement of Law or Contractual Obligation of
such Loan Party and will not result in, or require, the creation or imposition
of any Lien (other than those Liens created or imposed pursuant to the Loan
Documents) on any of its or their respective properties or revenues pursuant to
any such Requirement of Law or Contractual Obligation.
4.6 NO MATERIAL LITIGATION. No litigation, investigation or proceeding
of or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Borrower or any Subsidiary, threatened by or against the
Borrower or any Subsidiary or against any of their respective properties or
revenues (a) with respect to any of the
25
Loan Documents or any of the transactions contemplated hereby or thereby, or (b)
which could reasonably be expected to have a Material Adverse Effect.
4.7 NO DEFAULT. Except as disclosed on Schedule 4.7 hereof, no Loan
Party is in default under or with respect to any of its Contractual Obligations
in any respect which could reasonably be expected to have a Material Adverse
Effect. No Default or Event of Default has occurred and is continuing.
4.8 OWNERSHIP OF PROPERTY; LIENS. The Borrower and its Subsidiaries
have good record and marketable title in fee simple to, or a valid leasehold
interest in, all their real property, and good title to, or a valid leasehold
interest in, all their other property, and none of such property is subject to
any Lien except as set forth on Schedule 4.8 and as otherwise permitted by
subsection 7.3.
4.9 INTELLECTUAL PROPERTY. The Borrower and its Subsidiaries own, or
are licensed to use, all trademarks, tradenames, copyrights, technology,
know-how and processes necessary for the conduct of their business as currently
conducted except for those the failure to own or license which could not
reasonably be expected to have a Material Adverse Effect (the "INTELLECTUAL
PROPERTY"). No claim has been asserted and is pending by any Person challenging
or questioning the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does the Borrower or any of
its Subsidiaries know of any valid basis for any such claim which could
reasonably be expected to have a Material Adverse Effect. The use of such
Intellectual Property by the Borrower and its Subsidiaries does not infringe on
the rights of any Person, except for such claims and infringements that, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
4.10 NO BURDENSOME RESTRICTIONS. No Requirement of Law or Contractual
Obligation of the Borrower or any of its Subsidiaries could reasonably be
expected to have a Material Adverse Effect.
4.11 TAXES. The Borrower and its Subsidiaries have filed or caused to
be filed all material tax returns that, to the knowledge of the Borrower, are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other material taxes, fees or other charges imposed on it or any of its property
by any Governmental Authority (other than any the amount or validity of which
are currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or such Subsidiary); no tax Lien has been filed, and, to
the knowledge of the Borrower and its Subsidiaries, no claim is being asserted,
with respect to any such tax, fee or other charge, that, in each case, could
reasonably be expected to have a Material Adverse Effect.
4.12 FEDERAL REGULATIONS. No part of the proceeds of any Loans will be
used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulations T, U or X as now and from
time to time hereafter in effect. If requested by any Lender or the Agent, the
Borrower will furnish to
26
the Agent and each Lender a statement to the foregoing effect in conformity with
the requirements of FR Form U-I referred to in said Regulation U, as the case
may be.
4.13 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan that could
reasonably be expected to have a Material Adverse Effect, and each Plan has
complied in all material respects with the applicable provisions of ERISA and
the Code except where such non-compliance could not be reasonably expected to
have a Material Adverse Effect. No termination of a Single Employer Plan has
occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such
five year period that could reasonably be expected to have a Material Adverse
Effect. The present value of all accrued benefits under each Single Employer
Plan (based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits by more than $500,000. Neither the Borrower nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan, and neither the Borrower nor any Commonly Controlled Entity
would become subject to any liability under ERISA if the Borrower or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made except in each instance where such
withdrawal or liability could not reasonably be expected to have a Material
Adverse Effect. No such Multiemployer Plan is in Reorganization or Insolvent.
4.14 INVESTMENT COMPANY ACT; OTHER REGULATIONS. The Borrower is not an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Borrower is not subject to regulation under any Federal or State statute or
regulation (other than Regulation X) which limits its ability to incur
Indebtedness.
4.15 SUBSIDIARIES. All of the Subsidiaries of the Borrower at the date
hereof are listed on Schedule 4.15 to this Agreement.
4.16 PURPOSE OF LOANS. The proceeds of the loans shall be used by the
Borrower to finance (i) the Borrower's interest payment obligation in the amount
of $9,865,934 owed on the Senior Notes, (ii) $2,285,865 in principal and accrued
interest owed under the Affiliate Loan, (iii) fees and expenses relating to this
Agreement and the transactions contemplated hereby, and (iv) the general
corporate purposes of the Borrower and its Subsidiaries, including the hiring of
professional financial advisors or consultants, following the Closing Date.
4.17 ENVIRONMENTAL MATTERS.
(a) To the best knowledge of the Borrower, the facilities and
properties owned, leased or operated by the Borrower and its Subsidiaries (the
"PROPERTIES") do not contain, and have not previously contained, any Materials
of
27
Environmental Concern in amounts or concentrations that (i) constitute or
constituted a violation of, or (ii) could reasonably be expected to give rise to
liability under, any Environmental Law except in either case insofar as such
violation or liability, or any aggregation thereof, is not reasonably likely to
result in the payment of a Material Environmental Amount.
(b) To the best knowledge of the Borrower, the Properties and all
operations at the Properties are in compliance, and, to the Borrower's
knowledge, have in the last five years been in compliance (provided that, in the
case of any Properties acquired in the last five years, such knowledge is based,
for the period prior to such acquisition on the representations made to the
Borrower by the Person from which the Properties were acquired), with all
applicable Environmental Laws, and there is no contamination at, under or about
the Properties or violation of any Environmental Law with respect to the
Properties or the business operated by the Borrower (the "BUSINESS") except in
either case with respect to any instances of non-compliance or violation that
individually or in the aggregate would not be reasonably likely to result in the
payment of a Material Environmental Amount.
(c) Neither the Borrower nor any Subsidiary has received any notice of
violation, alleged violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with Environmental Laws with
regard to any of the Properties or the Business, nor does the Borrower nor any
Subsidiary have knowledge or reason to believe that any such notice will be
received or is being threatened except insofar as such notice or threatened
notice, or any aggregation thereof, does not involve a matter or matters that is
or are reasonably likely to result in the payment of a Material Environmental
Amount.
(d) To the knowledge of the Borrower (provided that, in the case of any
Properties acquired in the last five years, such knowledge is based, for the
period prior to such acquisition on the representations made to the Borrower by
the Person from which the Properties were acquired), materials of Environmental
Concern have not been transported or disposed of from the Properties in
violation of, or in a manner or to a location which could reasonably be expected
to give rise to liability under, any Environmental Law, nor have any Materials
of Environmental Concern been generated, treated, stored or disposed of at, on
or under any of the Properties in violation of, or in a manner that could
reasonably be expected to give rise to liability under, any applicable
Environmental Law except insofar as any such violation or liability referred to
in this paragraph, or any aggregation thereof, is not reasonably likely to
result in the payment of a Material Environmental Amount.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Borrower or any Subsidiary, threatened,
under any Environmental Law to which the Borrower or any Subsidiary is or will
be named as a party with respect to the Properties or the Business, nor are
there any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Properties or the
Business except insofar as such proceeding, action,
28
decree, order or other requirement, or any aggregation thereof, is not
reasonably likely to result in the payment of a Material Adverse Amount.
(f) To the knowledge of the Borrower and any Subsidiary, there has been
no release or threat of release of Materials of Environmental Concern at or from
the Properties, or arising from or related to the operations of the Borrower and
any Subsidiary in connection with the Properties or otherwise in connection with
the Business, in violation of or in amounts or in a manner that could reasonably
give rise to liability to the Borrower or any Subsidiary under Environmental
Laws except insofar as any such violation or liability referred to in this
paragraph, or any aggregation thereof, is not reasonably likely to result in the
payment of a Material Environmental Amount.
4.18 SOLVENCY. The assets of the Borrower at their fair valuation
exceed the liabilities of the Borrower, including contingent liabilities; (b)
the capital of the Borrower is not unreasonably small to conduct the business of
the Borrower; and (c) the Borrower has the ability to pay the Loans made to it
and its obligation under the other Loan Documents and its other debts arising in
the normal course of business as such debts mature and does not intend to, or
believe that it will, incur debt beyond its ability to pay as such debts mature.
We note, however, that Borrower has received a "going concern" qualification
from its auditors, KPMG Peat Marwick LLP, as disclosed in its Form 10-Q for the
quarter ended June 30, 2001.
4.19 FCC MATTERS. Each Loan Party has duly and timely filed all
material filings that are required to be filed by it under the Communications
Act, and is in all material respects in substantial compliance with the
Communications Act, except as set forth on Schedule 4.19. The Borrower is
qualified to control, and each License Subsidiary is qualified to be, a
broadcast licensee under the Communications Act. Schedule 4.19 lists all of the
FCC Licenses and all other material permits, authorizations and licenses of any
Governmental Authorities granted or assigned to the Loan Parties in connection
with the operation of the radio stations owned by the Loan Parties
(collectively, the "LICENSES"), and such Licenses are the only material FCC
authorizations, licenses and permits necessary for the conduct of the businesses
of the Loan Parties as of the date hereof. Each of the License Subsidiaries
holds the License designated as held by it on Schedule 4.19 Each of the Licenses
is validly issued and in full force and effect, and the Loan Parties have
fulfilled and performed all of their obligations with respect to the Licenses
and have full power and authority to operate thereunder, and the Licenses do not
conflict with the valid rights of others. None of the Loan Parties has any
knowledge of the occurrence of any event or the existence of any circumstance
which, in the reasonable judgment of the Borrower, is likely to lead to the
revocation of any of the Licenses.
(a) None of the Loan Parties is a party to or has knowledge of any
investigation, notice of apparent liability, violation, forfeiture or other
order or complaint issued by or before any court or regulatory body, including
the FCC, or of any other proceedings (other than proceedings relating to the
radio or television industries generally) which could in any manner threaten or
adversely affect the validity or continued effectiveness of the Licenses or give
rise to any order of forfeiture. None of
29
the Loan Parties has any reason to believe that the Licenses will not be renewed
in the ordinary course.
(b) None of the facilities of the Loan Parties used in connection with
the radio broadcasting operations of the Loan Parties violates in any material
respect the provisions of any applicable building codes, fire regulations,
building restrictions or other governmental ordinances, orders, or regulations
(including without limitation orders and regulations of the Federal Aviation
Administration and the FCC) and each such facility is zoned so as to permit the
commercial uses intended by the owner or occupier thereof and there are no
outstanding variances or special use permits materially affecting any of the
facilities or the uses thereof.
(c) To the knowledge of the Loan Parties have taken all actions
necessary to obtain all necessary approvals of the FCC to consummate the
transactions contemplated by the Asset Purchase Agreement, including, without
limitation, the proper filing of the FCC Assignment Application. To the
knowledge of the Loan Parties no Person has filed any petition to deny or other
objection to the FCC Assignment Application. None of the Loan Parties have any
reason to believe that the FCC Assignment Application will not be granted in the
ordinary course.
4.20 ASSET PURCHASE AGREEMENT. The Asset Purchase Agreement is in full
force and effect, and has not been amended or modified, nor have any provisions
thereof been waived. Each of the Borrower's representations and warranties, and
to the Borrower's knowledge each of the material representations and warranties
of the Purchaser, under the Asset Purchase Agreement is true and correct, there
is no breach or default thereunder, and there have been no adverse developments
in connection with the Asset Sale. No Loan Party knows of, or has received
notice or allegations of, any impediment to closing the Asset Sale under the
Asset Purchase Agreement, except as disclosed on Schedule 4.20 hereof. In the
event such impediments to close are not removed, the Borrower has Alternative
Arrangements (as defined under the Asset Purchase Agreement) available to it.
SECTION 5. CONDITIONS PRECEDENT
5.1 CONDITIONS TO EFFECTIVENESS. The effectiveness of this Agreement is
subject to the satisfaction, immediately prior to or concurrently with such
effectiveness on the Closing Date, of the following conditions precedent:
(a) LOAN DOCUMENTS. The Agent shall have received (i) this Agreement,
executed and delivered by a duly authorized officer of the Borrower, with a
counterpart for each Lender, (ii) for the account of each Lender requesting the
same, a Note conforming to the requirements hereof and executed by a duly
authorized officer of the Borrower, and (iii) an Assignment and Acceptance
between Chase and UBS, in a form satisfactory to UBS.
(b) OTHER INDEBTEDNESS. The Agent shall have received, and be satisfied
with, true and correct copies, certified as to authenticity by the Borrower, of
any
30
debt instrument, security agreement or other material contract to which the
Borrower may be a party.
(c) CLOSING CERTIFICATE. The Agent shall have received, with a
counterpart for each Lender, a certificate of the Borrower, dated the Closing
Date, substantially in the form of Exhibit B, with appropriate insertions and
attachments, satisfactory in form and substance to the Agent, executed by the
President or any Vice President and the Secretary or any Assistant Secretary of
the Borrower.
(d) PROCEEDINGS OF THE LOAN PARTIES. The Agent shall have received,
with a counterpart for each Lender, a copy of the resolutions, in form and
substance satisfactory to the Agent, of the Board of Directors or Managers of
each Loan Party authorizing (i) the execution, delivery and performance of this
Agreement and the other Loan Documents to which it is a party, (ii) the
borrowings contemplated hereunder and (iii) the granting by it of the Liens
created pursuant to the Security Documents, certified by the Secretary or an
Assistant Secretary of such Loan Party as of the Closing Date, which certificate
shall be in form and substance satisfactory to the Agent and shall state that
the resolutions thereby certified have not been amended, modified, revoked or
rescinded.
(e) INCUMBENCY CERTIFICATE. The Agent shall have received, with a
counterpart for each Lender, a Certificate of each Loan Party, dated the Closing
Date, as to the incumbency and signature of the officers of such Loan Party
executing any Loan Document satisfactory in form and substance to the Agent,
executed by the President or any Vice President and the Secretary or any
Assistant Secretary of the Borrower.
(f) CORPORATE DOCUMENTS. The Agent shall have received, with a
counterpart for each Lender, a true and complete copy of the certificate of
incorporation or similar documents for each of the Loan Parties, certified as of
the Closing Date as a complete and correct copy thereof by the Secretary or an
Assistant Secretary of such Loan Party.
(g) CONSENTS, LICENSES AND APPROVALS. The Agent shall have received,
with a counterpart for each Lender, a certificate of a Responsible Officer of
the Borrower (i) attaching copies of all consents, authorizations and filings
referred to in subsection 4.19 and 4.20 (including under the Asset Purchase
Agreement), and (ii) stating that such consents, licenses and filings are in
full force and effect, and each such consent, authorization and filing shall be
in form and substance satisfactory to the Agent.
(h) LEGAL OPINION. The Agent shall have received, with a counterpart
for each Lender, the executed legal opinions of the Borrower's legal counsel,
substantially in the form of Exhibit C-1, C-2 and C-3; such legal opinions shall
cover such other matters incident to the transactions contemplated by this
Agreement as the Agent may reasonably require.
31
(i) INSURANCE. The Agent shall have received evidence in form and
substance satisfactory to it that all of the requirements of Section 6.3 of the
Security Agreement shall have been satisfied.
(j) ADDITIONAL MATTERS. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents shall
be satisfactory in form and substance to the Agent, and the Agent shall have
received such other documents in respect of any aspect or consequence of the
transactions contemplated hereby or thereby as it shall reasonably request.
5.2 CONDITIONS TO FUNDING. The agreement of each Lender to make its
Loan requested to be made by it on any date is subject to the satisfaction of
the following conditions precedent:
(a) FEES AND EXPENSES. Lenders and Agent shall have received all fees
and expenses payable on or before such date (including all legal fees of the
Agent's counsel relating to services rendered in the preparation of this
Agreement and the transactions contemplated hereby).
(b) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made by the Borrower and the other Loan Parties in or pursuant to the
Loan Documents shall be true and correct in all material respects on and as of
such date as if made on and as of such date.
(c) NO DEFAULT. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the extensions of credit
requested to be made on such date.
The borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date thereof that the conditions contained in
this subsection 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect or any amount is owing to any Lender or the Agent hereunder or under any
other Loan Document, the Borrower shall, and (except in the case of subsections
6.1 and 6.2) shall cause each of its Subsidiaries to:
6.1 FINANCIAL STATEMENTS. Furnish to each Lender:
(a) as soon as available, but in any event within 90 days after the end
of each fiscal year of the Borrower, a copy of the consolidated balance sheet of
the Borrower as at the end of such year and the related consolidated statements
of income and retained earnings and of cash flows for such year, setting forth
in each case in comparative form the figures for the previous year, reported on
(except with respect to
32
the fiscal year ending December 31, 2000) without a "going concern" or like
qualification or exception, or qualification arising out of the scope of the
audit, by KPMG Peat Marwick LLP or other independent certified public
accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 45 days after
the end of each of the first three quarterly periods of each fiscal year of the
Borrower, the unaudited consolidated balance sheet of the Borrower as at the end
of such quarter and the related unaudited consolidated statements of income and
retained earnings and of cash flows of the Borrower for such quarter and the
portion of the fiscal year through the end of such quarter, setting forth in
each case in comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects (subject to
normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein) except that the quarterly financial statements provided
pursuant to subsection 6.1(b) shall only be required to include footnotes to the
extent such footnotes would be required to be included in a Quarterly Report
filed on Form 10-Q filed with the Securities and Exchange Commission.
6.2 CERTIFICATES; OTHER INFORMATION. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements referred
to in subsection 6.1(a), a certificate of the independent certified public
accountants reporting on such financial statements stating that in making the
examination necessary therefor no knowledge was obtained of any Default or Event
of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements referred
to in subsections 6.1(a) and 6.1(b), a certificate of a Responsible Officer
stating that to the best of such Responsible Officer's knowledge, the Borrower
during such period has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement and the
other Loan Documents to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate;
(c) not later than thirty days prior to the end of each fiscal year of
the Borrower, a copy of the projections by the Borrower of the operating budget
and cash flow budget of the Borrower for the succeeding fiscal year, such
projections to be accompanied by a certificate of a Responsible Officer to the
effect that such projections have been prepared in good faith on the basis of
reasonable assumptions and that such Responsible Officer has no reason to
believe they are incorrect or misleading in any material respect;
33
(d) within five days after the same are sent, copies of all financial
statements that the Borrower sends to its stockholders, and within five days
after the same are filed, copies of all financial statements and reports that
the Borrower may make to, or file with, the Securities and Exchange Commission
or any successor or analogous Governmental Authority; and
(e) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
6.3 PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
the Borrower or such Subsidiary.
6.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. Continue to
engage in business of the same general type as now conducted by it and preserve,
renew and keep in full force and effect its corporate existence and the Licenses
and take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business except if (i) in
the reasonable business judgment of the Borrower or such Subsidiary, as the case
may be, it is in its best economic interest not to preserve and maintain such
rights, privileges or franchises (other than the Licenses), and (ii) such
failure to preserve and maintain such rights, privileges or franchises would
not, in the aggregate, be reasonably likely to have a Material Adverse Effect or
result in any Event of Default; comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply therewith could
not, in the aggregate, be reasonably expected to have a Material Adverse Effect.
6.5 MAINTENANCE OF PROPERTY; INSURANCE. Keep all property useful and
necessary in its business in good working order and condition (normal wear and
tear accepted), except to the extent that the failure to do so with respect to
any such property would not be reasonably likely to have a Material Adverse
Effect; maintain with financially sound and reputable insurance companies
insurance on all its property in at least such amounts and against at least such
risks as are usually insured against in the same general area by companies
engaged in the same or a similar business; and furnish to each Lender, upon
written request, full information as to the insurance carried.
6.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. Keep proper
books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time on any Business Day and as often as may reasonably be desired and to
discuss the business, operations, properties and financial and other condition
of the Borrower and its Subsidiaries with officers and employees of the Borrower
and with its independent certified public accountants; provided that the Agent
34
or such Lender shall notify the Borrower prior to any contact with such
accountants and shall give the Borrower the opportunity to participate in such
discussions.
6.7 NOTICES. Promptly give notice to the Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation Of the Borrower or any Subsidiary or (ii) litigation, investigation
or proceeding which may exist at any time between the Borrower or any Subsidiary
and any Governmental Authority, which in either case, if not cured or if
adversely determined, as the case may be, could reasonably be expected to have a
Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any
Subsidiary in which the amount involved is $1,000,000 or more and not covered by
insurance or that could reasonably be expected to have a Material Adverse
Effect;
(d) any petition to deny or other objection to the FCC Assignment
Application filed by any Person, or any filing or communication with the FCC
constituting or relating to (i) any challenge to the validity of any FCC
License; (ii) the transfer, assignment, impairment or modification thereof; or
(iii) the qualification of the licensee under such FCC License;
(e) the following events, as soon as possible and in any event within
30 days after the Borrower knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable Event with respect to any
Plan, a failure to make any required contribution to a Plan, the creation of any
Lien in favor of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the institution
of proceedings or the taking of any other action by the PBGC or the Borrower or
any Commonly Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of, any Plan;
and
(f) any other development or event which could reasonably be expected
to have a Material Adverse Effect. ,
Each notice pursuant to this subsection 6.7 shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower proposes to take with respect
thereto.
6.8 ENVIRONMENTAL LAWS.
(a) Comply with, and ensure compliance by all tenants and subtenants,
if any, with, all applicable Environmental Laws and obtain and comply with and
maintain, and use its reasonable best efforts to ensure that all tenants and
subtenants obtain and comply with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws except to the extent that failure to do so could not be reasonably expected
to have a Material Adverse Effect.
35
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and directives of
all Governmental Authorities regarding Environmental Laws except to the extent
that the same are being contested in good faith by appropriate proceedings and
the tendency of such proceedings could not be reasonably expected to have a
Material Adverse Effect.
6.9 ASSIGNMENTS OF LEASES. Use all commercially reasonable efforts to
effectuate the due execution and delivery of Assignments of Leases in respect of
any real property leased by the Borrower or any Subsidiary and used in the
transmission or broadcasting of radio signals by any of the Stations (except
that the Forestry Service License shall not be assigned pursuant to an
Assignment of Leases or any other agreement) and related Landlord's Consent
within 60 days of the Closing Date or if later, the date of entering into or
acquisition of such lease. Upon execution, the Borrower shall furnish any (i)
Assignments of Leases, executed and delivered by a duly authorized officer of
the Borrower, and (ii) Landlords' Consents, executed and delivered by duly
authorized representatives ,of the parties thereto, to the Agent, with a
conformed copy for each Lender.
6.10 ASSET PURCHASE AGREEMENT. The Borrower shall at all times remain
in compliance with each of its undertakings under the Asset Purchase Agreement,
and take all necessary actions (including diligently pursuing Alternative
Arrangements as necessary) to fulfill the conditions to closing contained in the
Asset Purchase Agreement and to complete the Asset Sale as contemplated by the
Asset Purchase Agreement as soon as legally possible, and in any event prior to
the Termination Date. The Borrower will not amend, modify, terminate or waive
any provision of the Asset Purchase Agreement, or any agreements delivered in
connection therewith, or otherwise modify the terms of the transactions
contemplated thereunder, in each case without the Agent's prior written consent.
The Borrower will promptly inform the Agent of any material developments with
respect to the Asset Sale.
6.11 FURTHER ASSURANCES.
(a) From time to time hereafter upon demand of the Agent, the Borrower
will execute and deliver, or will cause to be executed and delivered, such
additional instruments, certificates or documents, and will take all such
actions, as the Agent may reasonably request, for the purposes of implementing
or effectuating the provisions of this Agreement and the other Loan Documents,
or of more fully perfecting or renewing the rights of the Agent and the Lenders
with respect to the Collateral (or with respect to any additions thereto or
replacements or proceeds thereof or with respect to any other property or assets
hereafter acquired by the Borrower that may be deemed to be part of the
Collateral) pursuant hereto or thereto. Upon the exercise by the Agent or any
Lender of any power, right, privilege or remedy pursuant to this Agreement or
the other Loan Documents which requires any consent, approval, recording,
qualification or authorization of any Governmental Authority, including, without
limitation, the FCC, the Borrower will execute and deliver, or will cause the
execution and delivery of, all applications, certifications, instruments and
other documents and papers that the Agent or
36
such Lender may reasonably require to obtain from the Borrower for such
governmental consent, approval, recording, qualification or authorization.
(b) With respect to any Person that, subsequent to the Closing Date,
becomes a Subsidiary, promptly upon the request of the Agent: (i) execute and
deliver to the Agent, for the benefit of the Lenders, such amendments or
supplements to the Security Agreement as the Agent shall deem necessary or
advisable to grant to the Agent, for the benefit of the Lenders, a Lien on the
Capital Stock of such Subsidiary which is owned by the Borrower or any of its
Subsidiaries, (ii) deliver to the Agent any certificates, if any, representing
such Capital Stock, together with undated stock powers executed and delivered in
blank by a duly authorized officer of the Borrower or such Subsidiary, as the
case may be, (iii) cause such new Subsidiary (A) to become a party to the
Security Agreement pursuant to documentation that is in form and substance
reasonably satisfactory to the Agent, and (B) to take all actions necessary or
advisable to cause the Lien created by the Security Agreement to be duly
perfected in accordance with all applicable Requirements of Law, including,
without limitation, the filing of financing statements in such jurisdictions as
may be requested by the Agent and (iv) if requested by the Agent, deliver to the
Agent legal opinions relating to the matters described in clauses (i), (ii) and
(iii) immediately preceding, which opinions shall be in form and substance, and
from counsel, reasonably satisfactory to the Agent.
(c) Notwithstanding anything herein or in the Security Agreement, to
the extent this Agreement or any other Loan Document purports to require any
Loan Party to grant to the Agent, on behalf of the Lenders, a security interest
in the FCC Licenses of any Loan Party now owned or hereafter acquired, as the
case may be, the Agent, on behalf of the Lenders, shall only have a security
interest in such FCC Licenses at such times and to the extent that a security
interest in such licenses is permitted under applicable law. Notwithstanding
anything to the contrary contained herein or in the other Loan Documents, the
Agent will not take any action pursuant to this Agreement or any other Loan
Document, nor will any Loan Party use any voting rights, that would constitute
or result in any assignment of any FCC License, any change of control of, or
transfer of any voting rights held by, any Loan Party, without first obtaining
the prior approval of the FCC or other state or Governmental Authority, if,
under the then existing law, such assignment of any FCC License, change of
control, or transfer of voting rights would require the prior approval of the
FCC or other state or Governmental Authority. Prior to the exercise by the Agent
of any power, right, privilege or remedy pursuant to this Agreement which
requires any consent, approval, recording, qualification or authorization of any
Governmental Authority or instrumentality, the Borrower will execute and
deliver, or will cause the execution and delivery of, all applications,
certificates, instruments and other documents and papers that the Agent may
reasonably require to obtain for such governmental consent, approval, recording,
qualification or authorization. Without limiting the generality of the
foregoing, the Borrower will use its best efforts upon the reasonable request of
the Agent to assist in obtaining from the appropriate governmental authorities
the necessary consents and approvals, if any, for the assignment or transfer of
such authorizations, licenses and permits to the Agent or its designee upon or
following acceleration of the payment of the Loans in accordance with the
provisions hereof.
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SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, or any other amount is owing to any Lender or the Agent hereunder or
under any other Loan Document, the Borrower shall not, and (except with respect
to subsection 7.1) shall not permit any of its Subsidiaries to, directly or
indirectly:
7.1 MINIMUM CONSOLIDATED EBITDA. Permit EBITDA, for any fiscal quarter,
to be less than $(1,750,000).
7.2 LIMITATION ON INDEBTEDNESS. Create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness of the Loan Parties under this Agreement and the other
Loan Documents;
(b) current liabilities of the Borrower (other than for borrowed money)
incurred in the ordinary course of its business and in accordance with customary
trade practices;
(c) Indebtedness of the Borrower to any Subsidiary and of any Loan
Party to the Borrower or to any other Subsidiary;
(d) Indebtedness with respect to any surety bonds required in the
ordinary course of business of the Borrower and its Subsidiaries, provided that
such Indebtedness shall not at any time exceed $250,000 in the aggregate;
(e) existing Indebtedness set forth on Schedule 7.2(e) and any renewal
or refinancing of such Indebtedness, provided the amount of such Indebtedness is
not increased and the maturity and weighted average life thereof are not
shortened;
(f) Subordinated Indebtedness owed to one or more Affiliates in an
aggregate amount outstanding not to exceed $500,000 at any time; and
(g) Indebtedness of the Borrower and its Subsidiaries represented by
the Senior Notes and the Guarantees of the Senior Notes in an aggregate amount
outstanding not to exceed $174,000,000.
7.3 LIMITATION ON LIENS. Create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with respect
thereto are maintained on the books of the Borrower or its Subsidiaries, as the
case may be, in conformity with GAAP;
38
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's,
landlords' or other like Liens arising in the ordinary course of business that
are not overdue for a period of more than 60 days or that are being contested in
good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(d) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(e) leases, subleases, easements, rights-of-way, encroachments and
other survey defects, restrictions and other similar encumbrances incurred in
the ordinary course of business that, in the aggregate, are not substantial in
amount and that do not in any case materially detract from the value of the
property subject thereto or materially interfere with the ordinary conduct of
the business of the Borrower;
(f) a collateral account established with Chase securing letters of
credit issued by Chase for the account of Borrower and outstanding on the date
hereof; and
(g) Liens created pursuant to the Security Documents.
7.4 LIMITATION ON GUARANTEE OBLIGATIONS. Create, incur, assume or
suffer to exist any Guarantee Obligation except Guarantee Obligations (a)
pursuant to the Loan Agreements, (b) in existence on the date hereof and listed
on Schedule 7.4 and any renewals thereof, PROVIDED the amount thereof is not
increased or extended and the maturity thereof is not shortened, or (c) relating
to the unsecured guarantees of the Senior Notes.
7.5 LIMITATION ON FUNDAMENTAL CHANGES. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business; except as contemplated under the Asset Purchase Agreement, and except
that so long as after giving effect thereto no Default or Event of Default shall
have occurred and be continuing, any Subsidiary (other than a License
Subsidiary) of the Borrower may be merged or consolidated with or into the
Borrower (provided that the Borrower shall be the surviving corporation or with
or into any one or more wholly-owned Subsidiaries (other than a License
Subsidiary) of the Borrower (provided that the wholly-owned Subsidiary or
Subsidiaries shall be the continuing or surviving corporation.
7.6 LIMITATION ON SALE OF ASSETS. Convey, sell, lease, assign, transfer
or otherwise dispose of any of its property, business or assets (including,
without
39
limitation, receivables and leasehold interests), whether now owned or hereafter
acquired, except:
(a) the sale or other disposition of property in the ordinary course of
business;
(b) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the compromise or
collection thereof;
(c) as permitted by subsection 7.5;
(d) any sale of obsolete assets in the ordinary course of business; and
(e) the transactions contemplated under the Asset Purchase Agreement.
7.7 LIMITATION ON DIVIDENDS. Declare or pay any dividend (other than
dividends payable solely in common stock of the Borrower) on, or make any
payment on account of, or set apart assets for a sinking or other analogous fund
for, the purchase, redemption, defeasance, retirement or other acquisition of,
any shares of any class of Capital Stock of the Borrower or any warrants or
options to purchase any such Capital Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Borrower or
any Subsidiary.
7.8 LIMITATION ON CAPITAL EXPENDITURES. Make or commit to make (by way
of the acquisition of securities of a Person or otherwise) any expenditure in
respect of the purchase or other acquisition of fixed or capital
assets(excluding any such asset acquired in connection with normal replacement
and maintenance programs properly charged to current operations and any
expenditure from the proceeds of casualty insurance used to repair or replace
the assets affected by such casualty loss) except for expenditures in the
ordinary course of business not exceeding $500,000 in the aggregate for the
Borrower during any fiscal quarter.
7.9 LIMITATION ON INVESTMENTS, LOANS AND ADVANCES. Make any advance,
loan, extension of credit or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of or any assets constituting a
business unit of, or make any other investment in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) investments in the Loan Parties;
(d) loans or advances to officers, directors and other employees of the
Borrower or its Subsidiaries for (i) commissions and travel and entertainment
expenses in
40
the ordinary course of business and (ii) relocation expenses and other similar
expenses; and
(e) if in the reasonable judgment of the Borrower or any of its
Subsidiaries, any customer is deemed to be in a reorganization or unable to make
a timely cash payment on Indebtedness of such customer owing to it, each of the
Borrower and its Subsidiaries may invest in securities issued by such customer
or any Affiliate thereof in lieu of cash payments; provided that the Borrower or
such Subsidiary, as the case may be, has paid no new consideration (other than
forgiveness of Indebtedness) therefor.
7.10 LIMITATION ON OPTIONAL PAYMENTS AND MODIFICATIONS OF DEBT
INSTRUMENTS OR AGREEMENTS. (a) Make any optional payment or prepayment on or
redemption or purchase of any Indebtedness (other than the Loans, or as
contemplated under subsection 4.16) or (b) amend, modify or change, or consent
or agree to any amendment, modification or change to any of the terms of any
such Indebtedness (other than any such amendment, modification or change which
would extend the maturity or reduce the amount of any payment of principal
thereof or which would reduce the rate or extend the date for payment of
interest thereon).
7.11 LIMITATION ON TRANSACTIONS WITH AFFILIATES.
(a) Enter into any transaction, including, without limitation, any
purchase, sale, lease or exchange of property or the rendering of any service,
with any Affiliate unless such transaction is (i) otherwise permitted under this
Agreement (including subsection 4.16), (ii) in the ordinary course of the
Borrower's or a Subsidiary's business, and (iii) upon fair and reasonable terms
no less favorable to the Borrower or such Subsidiary, as the case may be, than
it would obtain in a comparable arm's-length transaction with a Person that is
not an Affiliate.
(b) Make any payments of cash or other consideration to Metromedia
Company, whether under any management services agreement or otherwise, except
for not more than $100,000 on or before December 31, 2001.
7.12 LIMITATION ON SALES AND LEASEBACKS. Enter into any arrangement
with any Person providing for the leasing by the Borrower or any Subsidiary of
real or personal property that has been or is to be sold or transferred by the
Borrower or any Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of the Borrower or any Subsidiary.
7.13 LIMITATION ON CHANGES IN FISCAL YEAR. Permit the fiscal year of
the Borrower to end on a day other than December 31.
7.14 LIMITATION ON NEGATIVE PLEDGE CLAUSES. Enter into with any Person
any agreement, other than this Agreement, that prohibits or limits the ability
of the Borrower or any Subsidiary to create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired.
41
7.15 LIMITATION ON LINES OF BUSINESS AND LOCAL MARKETING AND SALES
AGREEMENTS. (a) Enter into any business, except for those businesses in which
the Borrower or any Subsidiary is engaged on the date of this Agreement or which
are directly related thereto, or (b) without the consent of the Required
Lenders, enter into any Local Marketing and Sales Agreement.
7.16 RESTRICTIONS ON MEMBER AND LICENSE SUBSIDIARIES.
(a) Permit any FCC License to be held by any Person other than a
License Subsidiary, except as may be necessary to give effect to the Asset Sale.
(b) Permit any FCC License held by any License Subsidiary not to be the
subject of an Operating Agreement or amend any Operating Agreement without the
consent of the Agent.
(c) Permit any Member other than the Borrower to engage in any activity
or business or have any employees or incur any Indebtedness or Contractual
Obligations or grant any Liens other than (i) activities and obligations
incidental to its membership or partnership interest in a License Subsidiary or
(ii) pursuant to the Loan Documents.
(d) Permit any License Subsidiary to engage in any activity or business
or have any employees or incur any Indebtedness or Contractual Obligations or
grant any Liens other than (i) activities or obligations incidental to its
holding of FCC Licenses and the related Operating Agreement or (ii) pursuant to
the Loan Documents.
(e) (i) Permit any License Subsidiary or Member to fail to satisfy
customary corporate or other applicable formalities, including the holding of
regular board of directors' and shareholders' or other required meetings and the
maintenance of offices and records, (ii) permit any bank account of any License
Subsidiary or any Member to be commingled with any bank account of the Borrower
or any of its other Subsidiaries, (iii) permit any financial statements
distributed to any creditors of the Borrower or any of its other Subsidiaries to
fail to clearly establish the separateness of the Members and the License
Subsidiaries from the Borrower and its other Subsidiaries, or (iv) take, or
permit any Member or any License Subsidiary to take, any action, or conduct its
affairs in a manner, that is likely to result in the corporate existence of any
Member or of any License Subsidiary being ignored, or in the assets and
liabilities of any Member or of any License Subsidiary being substantively
consolidated with those of the Borrower or any of its other Subsidiaries in a
bankruptcy, reorganization or other insolvency proceeding.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan when due
in accordance with the terms hereof; or the Borrower shall fail to pay any
interest on any
42
Loan, or any other amount payable hereunder, within five days after any such
interest or other amount becomes due in accordance with the terms hereof;
(b) Any representation or warranty made or deemed made by the Borrower
or any other Loan Party herein or in any other Loan Document or that is
contained in any certificate, document or financial or other statement furnished
by it at any time as required by this Agreement or any such other Loan Document
shall prove to have been incorrect in any material respect on or as of the date
made or deemed made;
(c) The Borrower or any other Loan Party shall default in the
observance or performance of any covenant contained in subsections 6.10,
6.11(c), or Section 7 hereof, or Section 5 of the Security Agreement;
(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this Agreement or
any other Loan Document (other than as provided in paragraphs (a) through (c) of
this Section 8), and such default shall continue unremedied for a period of 30
days;
(e) The Borrower or any other Loan Party shall, unless waived by the
Lender in each instance, (i) default in any payment of principal of or interest
of any Indebtedness (other than the Loans) or in the payment of any Guarantee
Obligation, beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness or Guarantee Obligation was created,
after giving effect to any consents or waivers relating thereto, if the
aggregate amount of the Indebtedness and/or Guarantee Obligations in respect of
which such default or defaults shall have occurred is at least $250,000; or (ii)
default in the observance or performance of any other agreement or condition
relating to any such Indebtedness or Guarantee Obligation or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation (or a
trustee or agent on behalf of such holder or holders) to cause, with the giving
of notice if required, such Indebtedness to become due prior to its stated
maturity or such Guarantee Obligation to become payable;
(f) (i) The Borrower or any other Loan Party shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets, or the
Borrower or any other Loan Party shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against the Borrower or any
other Loan Party any case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order for relief or any
such adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be
43
commenced against the Borrower or any, other Loan Party any case, proceeding or
other action seeking issuance of a warrant of attachment, execution, distraint
or similar process against all or any substantial part of its assets that
results in the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Borrower or any other Loan Party shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clauses (i), (ii), or (iii) above;
or (v) the Borrower or any other Loan Party shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as they
become due;
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of the Borrower or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee is,
in the reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion
of the Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or
(vi) any other event or condition shall occur or exist with respect to a Plan;
and in each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could reasonably be
expected to have a Material Adverse Effect;
(h) One or more judgments or decrees shall be entered against the
Borrower or any other Loan Party involving in the aggregate a liability (not
paid or fully covered by insurance) of $250,000 or more, and all such judgments
or decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within 30 days from the entry thereof,
(i) (i) Any of the Security Documents shall cease, for any reason, to
be in full force and effect, or the Borrower or any other Loan Party that is a
party to any of the Security Documents shall so assert or (ii) the Lien created
by any of the Security Documents shall cease to be enforceable and of the same
effect and priority purported to be created thereby;
(j) (i) The Borrower shall lose, fail to keep in force, suffer the
termination or revocation or nonrenewal of, or terminate, forfeit or suffer a
materially adverse amendment to any FCC License at any time owned by it; or (A)
the FCC denies the FCC Assignment Application , or the FCC Assignment
Application is otherwise for any reason not granted and no longer pending, or
the FCC determines to reconsider or review any grant of the FCC Assignment
Application or, if granted, the FCC Order or any grant of the FCC Assignment
Application or, if granted, the FCC Order fails to
44
remain in full force and effect; or (B) any petition to deny or other objection
(that the Agent determines, in its sole discretion, to be material) to the FCC
Assignment Application, or any petition for reconsideration, petition for
review, request for stay, or other request for appeal with respect to the FCC's
grant of the FCC Assignment Application is or has been filed by any Person,
unless in the case of (A) or (B) above, the Borrower has reasonable grounds to
believe that it will prevail in challenging any such objection or appeal, and
Borrower is continuing to diligently pursue its alternatives with respect
thereto.
(k) (i) Any Person or "group" (within the meaning of Section 13(d) or
14(d) of the Securities Exchange Act of 1934, as amended) other than ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ and his family, Affiliates and heirs shall obtain the power (whether
or not exercised) to elect a majority of the Borrower's directors; (ii) the
Borrower shall fail to own, directly or indirectly, free and clear of all Liens
(other than pursuant to the Security Documents) 100% of the Capital Stock of any
License Subsidiary or Member; or (iii) the Board of Directors of the Borrower
shall not consist of a majority of Continuing Directors; "CONTINUING DIRECTORS"
shall mean the directors of the Borrower on the Closing Date and each other
director, if such other director's nomination for election to the Board of
Directors of the Borrower is recommended by a majority of the then Continuing
Directors;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section 8 with respect to the
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement shall immediately become due and payable, and (B) if such
event is any other Event of Default, either or both of the following actions may
be taken: (i) with the consent of the Required Lenders, the Agent may, or upon
the request of the Required Lenders, the Agent shall, by notice to the Borrower
declare the Commitments to be terminated forthwith, whereupon the Commitments
shall immediately terminate; and (ii) with the consent of the Required Lenders,
the Agent may, or upon the request of the Required Lenders, the Agent shall, by
notice to the Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement to be due and payable
forthwith, whereupon the same shall immediately become due and payable.
Except as expressly provided above in this Section 8, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 9. THE AGENT
9.1 APPOINTMENT. Each Lender hereby irrevocably designates and appoints
the Agent as the agent of such Lender under this Agreement and the other Loan
Documents, and each such Lender irrevocably authorizes the Agent, in such
capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Agent by the terms of this
Agreement and the other Loan Documents,
45
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Loan Document or otherwise exist
against the Agent.
9.2 DELEGATION OF DUTIES. The Agent may execute any of its duties under
this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
9.3 EXCULPATORY PROVISIONS. Neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection with this Agreement or any other Loan Document (except
for its or such Person's own gross negligence or willful misconduct), or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Agent under or in connection with, this Agreement or any other Loan
Document or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document or for any failure
of the Borrower or any other Loan Party to perform its obligations hereunder or
thereunder. The Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower or any
other Loan Party.
9.4 RELIANCE BY AGENT. The Agent shall be entitled to rely, and shall
be fully protected in relying, upon any Note, writing, resolution, notice,
consent, certificate, affidavit, letter, facsimile, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrower), independent accountants and other experts
selected by the Agent. The Agent may deem and treat the payee of any Note as the
owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Agent. The Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Agent shall in all cases be fully protected in acting,
or in refraining from acting, under this Agreement and the other Loan Documents
in accordance with a request of the
46
Required Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
9.5 NOTICE OF DEFAULT. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default hereunder unless
the Agent has received notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the Agent receives such a
notice, the Agent shall give notice thereof to the Lenders. The Agent shall take
such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders; provided that unless and until the
Agent shall have received such directions, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
9.6 NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender expressly
acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to it and that no act by the Agent hereinafter taken, including
any review of the affairs of the Borrower or any other Loan Party, shall be
deemed to constitute any representation or warranty by the Agent to any Lender.
Each Lender represents to the Agent that it has, independently and without
reliance upon the Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and the other Loan Parties and
made its own decision to make its Loans hereunder and enter into this Agreement.
Each Lender also represents that it will, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Loan Documents, and to make such investigation as it
deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower and the other
Loan Parties. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Agent hereunder, the Agent shall not have
any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of the Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
9.7 INDEMNIFICATION. The Lenders agree to indemnify the Agent in its
capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to their
respective Commitment Percentages in effect on the date on which indemnification
is sought (or, if indemnification is sought after the date upon which the
Commitments shall have terminated and the Loans shall have been paid in full,
ratably in accordance with their Commitment Percentages immediately prior to
such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs,
47
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against the Agent in any way relating to
or arising out of, the Commitments, this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Agent under or in connection with any of the foregoing; provided that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from the Agent's gross negligence or
willful misconduct. The agreements in this subsection 9.7 shall survive the
payment of the Loans and all other amounts payable hereunder.
9.8 AGENT IN ITS INDIVIDUAL CAPACITY. The Agent and its Affiliates may
make loans to, accept deposits from and generally engage in any kind of business
with the Borrower and its Subsidiaries as though the Agent were not the Agent
hereunder and under the other Loan Documents. With respect to the Loans made by
it and with respect to any Letter of Credit issued or participated in by it, the
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not the
Agent, and the terms "Lender" and "Lenders" shall include the Agent in its
individual capacity.
9.9 SUCCESSOR AGENT. The Agent may resign as Agent upon ten days'
notice to the Lenders. If the Agent shall resign as Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent shall be
approved by the Borrower, whereupon such successor agent shall succeed to the
rights, powers and duties of the Agent, and the term "Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Agent's rights, powers and duties as Agent shall be terminated, without any
other or further act or deed on the part of such former Agent or any of the
parties to this Agreement or any holders of the Loans. After any retiring
Agent's resignation as Agent, the provisions of this Section 9 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement and the other Loan Documents.
SECTION 10. MISCELLANEOUS
10.1 AMENDMENTS AND WAIVERS. Neither this Agreement nor any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this subsection 10.1. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Agent may, from time to time, (a) enter into with the Borrower or the other Loan
Parties written amendments, supplements or modifications hereto and to the other
Loan Documents for the purpose of adding any provisions to this Agreement or the
other Loan Documents or changing in any manner the rights of the Lenders or of
the Borrower or the other Loan Parties hereunder or thereunder or (b) waive, on
such terms and conditions as the Required Lenders or the Agent, as the case may
be, may specify in such instrument, any
48
of the requirements of this Agreement or the other Loan Documents or any Default
or Event of Default and its consequences; PROVIDED, HOWEVER that no such waiver
and no such amendment, supplement or modification shall (i) reduce the amount or
extend the scheduled date of maturity of any Loan, or reduce the stated rate of
any interest or fee payable hereunder or extend the scheduled date of any
payment thereof or increase the amount or extend the expiration date of any
Lender's Commitment, in each case without the consent of each Lender affected
thereby, or (ii) amend, modify or waive any provision of this subsection 10.1 or
reduce the percentage specified in the definition of Required Lenders or
Required Lenders, or consent to the assignment or transfer by the Borrower of
any of its rights and obligations under this Agreement and the other Loan
Documents or release all or substantially all of the Collateral, in each case
without the written consent of all the Lenders, or (iii) amend, modify or waive
any provision of Section 9 without the written consent of the then Agent. Any
such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Borrower, the
Lenders, the Agent, the Loan Parties and all future holders of the Loans. In the
case of any waiver, the Borrower, the Lenders, the Loan Parties and the Agent
shall be restored to their former positions and rights hereunder and under the
other Loan Documents, and any Default or Event of Default waived shall be deemed
to be cured and not continuing; no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.
10.2 NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three days after being
deposited in the mails, postage prepaid, or (c) in the case of delivery by
facsimile transmission, when sent and receipt has been confirmed, addressed as
follows in the case of the Borrower and the Agent, and as set forth in Schedule
I in the case of the other parties hereto, or to such other address as may be
hereafter notified by the respective parties hereto:
The Borrower: Big City Radio, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Metromedia Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
49
The Agent: UBS AG, Stamford Branch
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and a copy to: Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
PROVIDED that any notice, request or demand to or upon the Agent or the Lenders
pursuant to subsection 2.2, 2.4, 2.6, or 2.11 shall not be effective until
received.
10.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Agent or any Lender, any right, remedy,
power or privilege hereunder or under the other Loan Documents shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
10.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
10.5 PAYMENT OF EXPENSES AND TAXES. The Borrower agrees
(a) to pay or reimburse the Agent for all its reasonable and documented
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Agent,
(b) to pay or reimburse the Agent and, from and after the occurrence of
a Default or an Event of Default, each Lender for all its costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement, the other Loan Documents and any such other documents,
including, without limitation, the reasonable and documented fees and
disbursements of counsel to each Lender and of counsel to the Agent,
50
(c) to pay, indemnify, and hold each Lender and the Agent harmless
from, any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and
(d) to pay, indemnify, and hold each Lender and the Agent harmless from
and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan Documents and
any such other documents, including, without limitation, any of the foregoing
relating to the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower or any of the
Properties (all the foregoing in this clause (d), collectively, the "indemnified
liabilities"), PROVIDED. that the Borrower shall have no obligation hereunder to
the Agent or any Lender with respect to indemnified liabilities arising from (i)
the gross negligence or willful misconduct of the Agent or any such Lender or
(ii) legal proceedings commenced against the Agent or any such Lender by any
security holder or creditor thereof arising out of and based upon rights
afforded any such security holder or creditor solely in its capacity as such.
The agreements in this subsection 10.5 shall survive repayment of the Loans and
all other amounts payable hereunder.
10.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.
(a) This Agreement shall be binding upon and inure to the benefit of
the Borrower, the Lenders, the Agent and their respective successors and
assigns, except that the Borrower may not assign or transfer any of its rights
or obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its commercial lending
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("PARTICIPANTS") participating interests in any Loan
owing to such Lender, any Commitment of such Lender or any other interest of
such Lender hereunder and under the other Loan Documents. In the event of any
such sale by a Lender of a participating interest to a Participant, such
Lender's obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Loan Documents, and the Borrower
and the Agent shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents. The Borrower agrees that if amounts outstanding under
this Agreement are due or unpaid, or shall have been declared or shall have
become due and payable upon the occurrence of an Event of Default, each
Participant shall, to the maximum extent permitted by applicable law, be deemed
to have the right of setoff in
51
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement, PROVIDED that, in purchasing
such participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in subsection 10.6 as
fully as if it were a Lender hereunder. The Borrower also agrees that each
Participant shall be entitled to the benefits of subsections 2.13, 2.14, and
2.15 with respect to its participation in the Commitments and the Loans
outstanding from time to time as if it was a Lender; PROVIDED that, in the case
of subsection 2.14, such Participant shall have complied with the requirements
of said subsection and PROVIDED, further, that no Participant shall be entitled
to receive any greater amount pursuant to any such subsection than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial lending
business and in accordance with applicable law, at any time and from time to
time assign to any Lender (unless a Default or Event of Default shall have
occurred and be continuing) or any Affiliate thereof or, with the consent (which
shall not be unreasonably withheld or delayed) of the Agent and the Borrower
(unless a Default or Event of Default shall have occurred and be continuing), to
an additional bank or financial institution ("an ASSIGNEE") all or any part of
its rights and obligations under this Agreement and the other Loan Documents
pursuant to an Assignment and Acceptance, substantially in the form of Exhibit
D, executed by such Assignee, such assigning Lender (and, in the case of an
Assignee that is not then a Lender or an Affiliate thereof, by the Agent) and
delivered to the Agent for its acceptance and recording in the Register of the
aggregate principal amount of the Loans and the aggregate amount of the
Available Commitment of all the Lenders then outstanding (or such lesser amount
as may be agreed to by the Borrower and the Agent); PROVIDED that no such
assignment shall be effective unless it is for a minimum amount of at least
$1,000,000. Upon such execution, delivery, acceptance and recording, from and
after the effective date determined pursuant to such Assignment and Acceptance,
(x) the Assignee thereunder shall be a party hereto and, to the extent provided
in such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Commitment as set forth therein, and (y) the assigning Lender
thereunder shall, to the extent provided in such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such assigning Lender
shall cease to be a party hereto).
(d) The Agent, on behalf of the Borrower, shall maintain at the address
of the Agent referred to in subsection 10.2 a copy of each Assignment and
Acceptance delivered to it and a register (the "REGISTER") for the recordation
of the names and addresses of the Lenders and the Commitment of, and principal
amount of the Loans owing to, each Lender from time to time. The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Agent and the Lenders may (and, in the case of any Loan or other
obligation hereunder not evidenced by a Note, shall) treat each Person whose
name is recorded in the Register as the owner of a Loan or other obligation
hereunder as the owner thereof for all purposes of this Agreement and the
52
other Loan Documents, notwithstanding any notice to the contrary. Any assignment
of any Loan or other obligation hereunder not evidenced by a Note shall be
effective only upon appropriate entries with respect thereto being made in the
Register. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an Affiliate thereof, by the Agent) together with payment to
the Agent of a registration and processing fee of $3,500, the Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give notice of such acceptance and recordation to the Lenders and
the Borrower.
(f) The Borrower authorizes each Lender to disclose to any Participant
or Assignee (each, a "TRANSFEREE") and any prospective Transferee any and all
financial information in such Lender's possession concerning the Borrower and
its Affiliates which has been delivered to such Lender by or on behalf of the
Borrower pursuant to this Agreement or which has been delivered to such Lender
by or on behalf of the Borrower in connection with such Lender's credit
evaluation of the Borrower and its Affiliates prior to becoming a party to this
Agreement.
(g) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this subsection 10.6 concerning assignments of Loans and
Notes relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including, without limitation,
any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve
Bank in accordance with applicable law.
10.7 [Reserved]
10.8 COUNTERPARTS. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Agent.
10.9 SEVERABILITY. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 INTEGRATION. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Agent and the Lenders with respect
to the subject matter hereof, and there are no promises, undertakings,
representations or
53
warranties by the Borrower, the Agent or any Lender relative to subject matter
hereof not expressly set forth or referred to herein or in the other Loan
Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
10.12 SUBMISSION TO JURISDICTION; WAIVERS. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the State of
New York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof,
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to the Borrower at its
address set forth in subsection 10.2 or at such other address of which the Agent
shall have been notified pursuant thereto; and
(d) agrees that nothing herein, shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to ▇▇▇ in any other jurisdiction.
Each of the Borrower, the Agent and the Lenders hereby irrevocably
and unconditionally waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding referred
to in this subsection 10.12 any special, exemplary, punitive or consequential
damages.
10.13 ACKNOWLEDGEMENTS. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Agent nor any Lender has any fiduciary relationship
with or duty to the Borrower arising out of or in connection with this Agreement
or any of the other Loan Documents, and the relationship between Agent and
Lenders, on one hand, and the Borrower, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
54
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Borrower and the Lenders.
10.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENT AND THE LENDERS
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
55
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
BIG CITY RADIO, INC., a Delaware corporation
By:
---------------------------------------
Name:
Title:
UBS AG, STAMFORD BRANCH, as
Agent and as a Lender
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
SCHEDULE I
LENDERS, ADDRESSES AND COMMITMENTS
----------------------------------
Lender Commitment Percent of Total
------ ---------- ----------------
UBS AG, Stamford Branch $15,000,000 100%
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Schedule I, p. 1
SCHEDULE 4.2
MATERIAL EVENTS SINCE DECEMBER 13, 2000
---------------------------------------
On September 15, 2001, the Borrower failed to make its scheduled interest
payment under the Senior Notes Indenture.
Schedule 4.2, p. 1
SCHEDULE 4.7
MATERIAL CONTRACTUAL DEFAULTS
-----------------------------
Interest payment default under Senior Notes.
Schedule 4.7, p. 1
SCHEDULE 4.8
LIENS
-----
Tax Lien against one of the Subsidiaries, Odyssey Traveling Billboards, Inc., in
the approximate amount of $2,300 by the California Franchise Tax Board.
Schedule 4.8, p. 1
SCHEDULE 4.15
SUBSIDIARIES
------------
Big City Radio-CHI, L.L.C.
Big City Radio-LA, L.L.C.
Big City Radio-NYC, L.L.C.
Big City Radio-Phoenix, L.L.C.
Odyssey Traveling Billboards, Inc.
Hispanic Internet Holdings, Inc.
Independent Radio Reps, L.L.C.
WRKL Rockland Radio, L.L.C.
Schedule 4.15, p. 1
SCHEDULE 4.19
FCC LICENSES AND PERMITS
------------------------
BIG CITY RADIO-CHI, L.L.C.
MAIN STATION COMMUNITY OF LICENSE LICENSE FCC
CALL SIGN EXPIRATION FACILITY
DATE ID NO.
--------------------------------------------------------------------------------------------------------------------
WDEK(FM) De ▇▇▇▇, IL 12/1/04 15974
WKIE(FM) Arlington, Heights, IL 12/1/04 15520
WKIF(FM) Kankakee, IL 12/1/04 ▇▇▇▇▇
▇▇▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ 12/1/04 74177
WYXX(FM) Morris, IL 12/1/04 17038
BIG CITY RADIO-LA, L.L.C.
MAIN STATION COMMUNITY OF LICENSE LICENSE FCC
CALL SIGN EXPIRATION FACILITY
DATE ID NO.
--------------------------------------------------------------------------------------------------------------------
KLYY(FM) Arcadia, CA 12/1/05 ▇▇▇▇▇
▇▇▇▇(▇▇) ▇▇▇▇▇▇▇▇▇, ▇▇ 12/1/05 35139
KVYY(FM) Ventura, CA 12/1/05 ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ OF LICENSE LICENSE FCC
CALL SIGN EXPIRATION FACILITY
DATE ID NO.
--------------------------------------------------------------------------------------------------------------------
KLYY-FM1 Burbank, CA 12/1/05 ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ OF LICENSE LICENSE FCC
CALL SIGN EXPIRATION FACILITY
DATE ID NO.
--------------------------------------------------------------------------------------------------------------------
K252BF Temecula, CA 12/1/05 35138
Schedule 4.19, p.1
MAIN STATION COMMUNITY OF LICENSE LICENSE FCC
CALL SIGN EXPIRATION FACILITY
DATE ID NO.
--------------------------------------------------------------------------------------------------------------------
WWXY(FM) Hampton Bay, NY 6/1/06 61089
WWYY(FM) Belvidere, NJ 6/1/06 ▇▇▇▇▇
▇▇▇▇(▇▇) ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ 6/1/06 ▇▇▇▇▇
▇▇▇▇(▇▇) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ 6/1/06 50056
BIG CITY RADIO-PHOENIX, L.L.C.
MAIN STATION COMMUNITY OF LICENSE LICENSE FCC
CALL SIGN EXPIRATION FACILITY
DATE ID NO.
--------------------------------------------------------------------------------------------------------------------
KBZR(FM) Arizona City, AZ 10/1/05 ▇▇▇▇
▇▇▇▇(▇▇) ▇▇▇▇▇, ▇▇ 10/1/05 22977
KEDJ(FM) Sun City, AZ 10/1/05 ▇▇▇▇▇
▇▇▇▇(▇▇) ▇▇▇▇▇▇▇▇▇▇, ▇▇ 10/1/05 ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ OF LICENSE LICENSE FCC
CALL SIGN EXPIRATION FACILITY
DATE ID NO.
--------------------------------------------------------------------------------------------------------------------
KSSL-FM1 Constellation, AZ 10/1/05 77422
Schedule 4.19, p.2
AUXILIARY LICENSE CALL ASSOCIATED MAIN STATION LICENSE
SIGN EXPIRATION
DATE
WAK894 WDEK 12/1/04
KPG811 WDEK 12/1/04
WPNP337 WKIE 4/20/04
WLI911 KVYY 12/1/05
WGW993 WWXY 6/1/06
WHE822 WWZY 6/1/06
KPK855 WYNY 6/1/06
WLD207 KBZR 10/1/05
WPTE425 ▇▇▇▇ ▇▇/▇/▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ 10/1/05
WPOT269 KDDJ 10/1/05
WPOT270 KDDJ 10/1/05
WPOT268 KEDJ 10/1/05
WLO690 KSSL 10/1/05
Schedule 4.19, p.3
SCHEDULE 4.20
POTENTIAL IMPEDIMENTS TO ASSET SALE
-----------------------------------
As of the date hereof, the Borrower has not received the following Third Party
Consents, as required for closing under the Asset Sale:
1. Arizona State Land Commissioner - New permits are required for the
following:
(a) Commercial Lease dated as of July 15, 1998 between the State of Arizona
and Big City Radio, Inc. (as Assignee from Interstate Broadcasting
System of Arizona, Inc.) for KSSL main transmitter site.
(b) Right of Way dated February 2, 1999 between the State of Arizona and
Big City Radio, Inc. (as Assignee from Interstate Broadcasting System
of Arizona, Inc.).
(c) Special Land Use Permit dated as of March 2, 2001 between the State of
Arizona, Arizona State Land Department and Big City Radio, Inc. for
KSSL Booster Site.
2. USDA, Forestry Service - New permits are required for the following:
(a) Communications Use Lease dated March 4, 1999 between the United States
Department of Agriculture Forest Service and Big City Radio-Phoenix,
LLC (as Assignee from New Century Arizona, LLC) for KDDJ main
transmitter site.
(b) Communications Use Lease dated March 4, 1999 between the United States
Department of Agriculture and Big City Radio-Phoenix, LLC (as Assignee
from New Century Arizona, LLC) for KDDJ auxiliary transmitter site.
Schedule 4.20, p. 1
SCHEDULE 7.2(G)
EXISTING INDEBTEDNESS
---------------------
1. The Affiliate Loan
2. Indenture relating to the 11 1/4% Senior Discount Notes due 2005
3. Promissory Note between Big City Radio, Inc. and Arbitron Inc. in an
outstanding amount of approximately $140,000
4. Trade agreement between Big City Radio, Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇
Productions, Inc. not evidencing indebtedness for borrowed money
Schedule 7.2(g), p. 1
SCHEDULE 7.4
GUARANTEE OBLIGATIONS
---------------------
None.
Schedule 7.4, p. 1
SCHEDULE 7.9
INVESTMENTS, LOANS AND ADVANCES
-------------------------------
SPM: Security Deposit $ 10,551.66 Phx
Orion Pictures Security Deposit 777.60 Corp
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - LA Promotion Office Deposit 3,120.00 ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - Fallbrook Site Deposit 500.00 LA
CSC Acquisition - East Quogue Xmitter Site Deposit 13,600.00 NY
▇▇▇▇▇▇▇ Properties - 8th Avenue Business Office Deposit 90,000.00 NY
SGD Realty - 2 Quoque Plaza Deposit 1,300.00 NY
D&B - Highland Park Office Deposit 800.00 FL
2000 ▇▇▇▇▇ De ▇▇▇▇ Deposit 49,335.76 FL
Florida Power & Light Security Deposit 3,115.00 FL
--------------
Total: $ 173,100.02
==============
Schedule 7.9, p.1
EXHIBIT A
FORM OF NOTE
------------
$_______ New York, New York
October __, 2001
FOR VALUE RECEIVED, the undersigned, BIG CITY RADIO, INC., a Delaware
corporation (the "BORROWER"), hereby unconditionally promises to pay to the
order of____________ (the "LENDER") at the office of UBS AG, Stamford Branch
located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in lawful
money of the United States of America and in immediately available funds, on the
Termination Date the principal amount of (a) ___________ DOLLARS ($_______), or,
if less, (b) the aggregate unpaid principal amount of Loans made or deemed made
by the Lender to the Borrower pursuant to subsection 2.1 of the Credit
Agreement, as hereinafter defined. The Borrower further agrees to pay interest
in like money at such office on the unpaid principal amount hereof from time to
time outstanding at the rates and on the dates specified in subsections 2.6 and
2.8 of such Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of each Loan
made pursuant to the Credit Agreement and the date and amount of each payment or
prepayment of principal thereof, each continuation thereof, each conversion of
all or a portion thereof to another Type and, in the case of Eurodollar Loans,
the length of each Interest Period with respect thereto. Each such endorsement
shall constitute PRIMA FACIE evidence of the accuracy of the information
endorsed. The failure to make any such endorsement shall not affect the
obligations of the Borrower in respect of such Loan.
This Note (a) is one of the Notes referred to in the Third Amended and
Restated Credit Agreement dated as of October __, 2001 (as amended, supplemented
or otherwise modified from time to time, the "CREDIT AGREEMENT"), among the
Borrower, the Lender, the other banks and financial institutions from time to
time parties thereto and UBS AG, Stamford Branch, as agent, (b) is subject to
the provisions of the Credit Agreement and (c) is subject to optional and
mandatory prepayment in whole or in part as provided in the Credit Agreement.
This Note is secured as provided in the Loan Documents. Reference is hereby made
to the Loan Documents for a description of the properties and assets in which a
security interest has been granted, the nature and extent of the security, the
terms and conditions upon which the security interests were granted and the
rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Schedule 4.19, p. 2
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
BIG CITY RADIO, INC.
By:
-----------------------------------
Name:
Title:
Schedule 4.19, p. 2
EXHIBIT B
FORM OF CLOSING CERTIFICATE
---------------------------
[Attached]
Exhibit B, p. 1
EXHIBIT C
FORM OF LEGAL OPINION OF COUNSEL TO THE BORROWER
------------------------------------------------
[Attached]
Exhibit C, p. 1
EXHIBIT D
FORM OF ASSIGNMENT AND ACCEPTANCE
---------------------------------
[Attached]
Exhibit D, p. 1