EXHIBIT 10.1
CREDIT AND GUARANTEE AGREEMENT,
DATED AS OF MAY 6, 1998,
BY AND AMONG
▇▇▇▇▇▇▇ MEDIA GROUP, INC.,
THE SUBSIDIARY GUARANTORS PARTY HERETO,
THE LENDERS PARTY HERETO,
NATIONSBANK, N.A., AS SYNDICATION AGENT
AND
THE BANK OF NEW YORK, AS ADMINISTRATIVE AGENT
BNY CAPITAL MARKETS, INC.,
AS ARRANGER
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS AND RULES OF INTERPRETATION .....................1
1.1. Definitions....................................................1
1.2. Accounting Terms .............................................21
1.3. Rules of Interpretation ......................................22
ARTICLE 2. AMOUNT AND TERMS OF LOANS ..................................22
2.1. Loans ........................................................22
2.2. Procedure for Borrowing ......................................23
2.3. Termination, Reduction or Increases of
Commitments ..................................................24
2.4. Prepayments of the Loans .....................................26
2.5 Payments; Pro Rata Treatment and Sharing of
Set-offs......................................................27
ARTICLE 3. INTEREST, FEES, YIELD PROTECTIONS, ETC .....................29
3.1. Interest Rate and Payment Dates ..............................29
3.2. Fees..........................................................30
3.3. Conversions ..................................................31
3.4. Concerning Interest Periods ..................................31
3.5. Funding Loss .................................................32
3.6. Increased Costs; Illegality, etc .............................32
3.7. Taxes ........................................................34
3.8. Register .....................................................35
ARTICLE 4. REPRESENTATIONS AND WARRANTIES .............................35
4.1. Organization and Power .......................................35
4.2. Authorization; Enforceability ................................35
4.3. Approvals; No Conflicts.......................................36
4.4. Financial Condition; No Material Adverse Change ..............36
4.5. Properties ...................................................36
4.6. Litigation ...................................................37
4.7, Environmental Matters ........................................37
4.8. Compliance with Laws and Agreements; No Default ..............38
4.9. Investment Companies and other Regulated
Entities .....................................................38
4.10. Federal Reserve Regulations .................................38
4.11. ERISA .......................................................38
4.12. Taxes .......................................................38
4.13. Subsidiaries ................................................39
4.14. Absence of Certain Restrictions .............................39
4.15. Labor Relations .............................................39
4.16. Insurance ...................................................39
4.17. FCC Matters..................................................39
4.18. Concerning the Zions Stock ..................................40
4.19. Concerning the Terminating Bank Debt ........................40
4.20. Year 2000 ...................................................40
4.21. Financial Condition .........................................41
4.22. Concerning ▇▇▇▇▇▇▇ Satellite, Inc. and its
Subsidiaries ..........................................................41
4.23. No Misrepresentation ........................................41
ARTICLE 5. CONDITIONS PRECEDENT TO FIRST LOANS ........................41
5.1. Evidence of Action ...........................................41
5.2. This Agreement ...............................................42
5.3. Notes ........................................................42
5.4. Opinions of Counsel to the Loan Parties ......................42
5.5. Security Documents, Search Reports, etc ......................42
5.6. License Subsidiary Management Agreements .....................43
5.7. Financial Officer's Certificate ..............................43
5.8. Federal Reserve Forms ........................................43
5.9. Terminating Bank Debt ........................................43
5.10. Property, Public Liability and Other
Insurance ....................................................44
5.11. Audited 1997 Financial Statements ...........................44
5.12. Fees ........................................................44
5.13. Other Documents .............................................44
ARTICLE 6. CONDITIONS PRECEDENT TO EACH LOAN ..........................44
6.1. Compliance ...................................................45
6.2. Borrowing Request ............................................45
6.3. Law ..........................................................45
ARTICLE 7. AFFIRMATIVE COVENANTS ......................................45
7.1. Financial Statements and Information .........................45
7.2. Notice of Material Events ....................................47
7.3. Existence; Conduct of Business ...............................47
7.4. Payment of Obligations .......................................48
7.5. Maintenance of Properties ....................................48
7.6. Insurance ....................................................48
7.7. Books and Records: Inspection Rights .........................48
7.8. Compliance with Laws .........................................48
7.9. Additional Subsidiaries ......................................49
7.10. Additional Collateral .......................................49
7.11. Concerning ▇▇▇▇▇▇▇ New Mexico ...............................49
7.12. Additional FCC Licenses......................................49
7.13. Maintenance of FCC Licenses .................................50
ARTICLE 8. NEGATIVE COVENANTS .........................................50
8.1. Indebtedness .................................................51
8.2. Negative Pledge ..............................................51
8.3. Fundamental Changes ..........................................52
8.4. Investments, Loans, Advances and Guarantees ..................52
8.5. Acquisitions .................................................54
8.6. Dispositions .................................................55
8.7. Restricted Payments ..........................................56
8.8. Hedging Agreements ...........................................57
8.9. Sale and Lease-Back Transactions .............................57
8.10. Lines of Business; License Subsidiaries .....................57
8.11. Transactions with Affiliates.................................57
8.12. Amendments, Etc. of Certain Agreements ......................57
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8.13. Use of Proceeds .............................................57
8.14. Restrictive Agreements ......................................58
8.15. Financial Covenants .........................................58
8.16. Prepayments of Indebtedness .................................59
8.17. Concerning ▇▇▇▇▇▇▇ Satellite, Inc. and its
Subsidiaries .................................................59
ARTICLE 9. DEFAULTS ...................................................60
9.1. Events of Default ............................................60
9.2. Contract Remedies ............................................62
9.3. Liquidation of Zions Stock ...................................63
ARTICLE 10. THE ADMINISTRATIVE AGENT ..................................64
10.1. Appointment .................................................64
10.2. Individual Capacity .........................................64
10.3. Exculpatory Provisions ......................................64
10.4. Reliance by Administrative Agent ............................65
10.5. Reliance by Administrative Agent ............................65
10.6. Resignation; Successor Administrative Agent .................65
10.7. Non-Reliance on Other Credit Parties ........................66
10.8. Syndication Agent ...........................................66
ARTICLE 11. OTHER PROVISIONS ..........................................66
11.1. Amendments and Waivers ......................................66
11.2. Notices .....................................................68
11.3. Survival ....................................................68
11.4. Expenses; Indemnity .........................................68
11.5. Successors and Assigns ......................................69
11.6. Counterparts; Integration ...................................71
11.7. Severability ................................................71
11.8. GOVERNING LAW ...............................................71
11.9. Jurisdiction; Service of Process ............................71
11.10. WAIVER OF TRIAL BY JURY ....................................72
ARTICLE 12. SUBSIDIARY GUARANTEE ......................................72
12.1. Guarantee ...................................................72
12.2. Absolute Obligation .........................................73
12.3. Repayment in Bankruptcy, etc ................................74
12.4. Additional Subsidiary Guarantors ............................74
12.5. Miscellaneous ...............................................74
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EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Borrowing Request
Exhibit C Form of Notice of Conversion
Exhibit D Form of Compliance Certificate
Exhibit E Form of Opinion of Counsel to the Borrower and its
Subsidiaries
Exhibit E-1 Form of Opinion of FCC Counsel to the Borrower
Exhibit F Form of Assignment and Acceptance Agreement
Exhibit G Form of Increase Supplement
Exhibit H Form of Security Agreement
Exhibit I Form of Guarantee Supplement
Exhibit J Form of License Subsidiary Management Agreement
SCHEDULES
Schedule 4.6 List of Litigation
Schedule 4.7 List Environmental Matters
Schedule 4.14 List of Subsidiaries; Capitalization
Schedule 4.16 List of Insurance
Schedule 4.17 List of FCC Licenses
Schedule 8.1 List of Existing Indebtedness
Schedule 8.2 List of Existing Liens
Schedule 8.4 List of Existing Investments
Schedule 8.14 List of Restrictive Agreements
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CREDIT AND GUARANTEE AGREEMENT, dated as of May 6, 1998, by and among
▇▇▇▇▇▇▇ MEDIA GROUP, INC., a Utah corporation (the "BORROWER"), the Subsidiary
Guarantors (as defined below), the several banks and other parties from time to
time parties hereto (the "LENDERS"), NATIONSBANK, N.A., as Syndication Agent (in
such capacity, the "SYNDICATION AGENT"), and THE BANK OF NEW YORK ("BNY"), as
administrative agent for each of the other Credit Parties hereto (in such
capacity, the "AD-MINISTRATIVE AGENT").
ARTICLE 1. DEFINITIONS AND RULES OF INTERPRETATION
1.1. DEFINITIONS
As used in this Agreement, terms defined in the preamble have the
meanings therein indicated, and the following terms have the following meanings:
"ABR ADVANCES" means the Loans (or any portions thereof), at such time
as they (or such portions) are made and/or being maintained at a rate of
interest based upon the Alternate Base Rate.
"ACCOUNTANTS" means KMPG Peat Marwick (or any successor thereto), or
such other firm of certified public accountants of recognized national standing
selected by the Borrower and reasonably satisfactory to the Administrative
Agent.
"ACQUISITION" has the meaning set forth in Section 8.5.
"ACQUISITION CONSIDERATION" has the meaning set forth in Section
8.5(b).
"ADJUSTED EBITDA" means, for any period, EBITDA of the Borrower and
the Subsidiaries on a consolidated basis determined in accordance with GAAP,
adjusted on a consistent basis to reflect the acquisition, sale, exchange and
disposition of property during such period, provided, however, (i) if the EBITDA
of ▇▇▇▇▇▇▇ New Mexico for such period is positive, only 80% thereof shall be
taken into account in calculating Adjusted EBITDA, (ii) any such adjustments for
losses to the extent related to newly acquired businesses shall not exceed
$500,000 prior to a Qualified Equity Offering, or $1,000,000 thereafter, (iii)
losses from newly acquired businesses shall only be excluded from the
calculation of Adjusted EBITDA for up to one year after the date that the
acquisition was completed, (iv) for any period which includes any fiscal quarter
of the 1997 fiscal year, Adjusted EBITDA shall be increased by an amount equal
to $100,000 MULTIPLIED BY the number of such full fiscal quarters in such period
and (v) for each full fiscal quarter occurring after the 1997 fiscal year and
prior to the occurrence of a Permitted Diversifying Acquisition, Adjusted EBITDA
shall be increased by an amount equal m the lesser of (x) $100,000 and (y) 25%
of overhead expense.
"ADJUSTED NET CASH PROCEEDS" means, with respect to any Disposition as
of any date of determination, the amount equal to the difference between (i) the
Net Cash Proceeds from such Disposition, and (ii) the Reinvested Proceeds in
connection with such Disposition.
"ADVANCE" means an ABR Advance or a Eurodollar Advance.
"AFFILIATE" means as to any Person any other Person at the time
directly or indirectly controlling, controlled by or under direct or indirect
common control with such Person. For purposes of this definition, "CONTROL" of a
Person means the power, directly or indirectly, either to (i) vote 5% or more of
the securities having ordinary voting power for the election of directors of
such Person or (ii) direct or cause the direction of the management and policies
of such Person, whether by contract or otherwise.
"AFFECTED ADVANCE" has the meaning set forth in Section 3.6(d).
"AGGREGATE COMMITMENTS" means, at any time, the sum at such time of
the Aggregate Facility A Commitment and Aggregate Facility B Commitment.
"AGGREGATE EXPOSURE" means, at any time, the sum at such time of the
outstanding principal balance of the Loans of all Lenders.
"AGGREGATE FACILITY A COMMITMENT" means, at any time, the sum at such
time of the Facility A Commitments of all Lenders.
"AGGREGATE FACILITY A EXPOSURE" means, at any time, the sum at such
time of the outstanding principal balance of the Facility A Loans of all
Lenders.
"AGGREGATE FACILITY B COMMITMENT" means, at any time, the sum at such
time of the Facility B Commitments of all Lenders.
"AGGREGATE FACILITY B EXPOSURE" means, at any time, the sum at such
time of the outstanding principal balance of the Facility B Loans of all
Lenders.
"AGREEMENT" means this Credit and Guarantee Agreement.
"ALTERNATE BASE RATE" means on any date, a rate of interest per annum
equal to the higher of (i) the Federal Funds Effective Rate in effect on such
date PLUS 1/2 of 1% or (ii) the Prime Rate in effect on such date.
"APPLICABLE MARGIN" means:
(A) FACILITY A LOANS. On any day on which the Facility A Exposure
(i) is less than 20% of the Zions Stock Value on such day, (x) 0%, in respect of
ABR Advances comprising all or a portion of the Facility A Loans, and (y) 0.50%
in respect of Eurodollar Advances comprising all or a portion of the Facility A
Loans, and (ii) is greater than or equal to 20% of the Zions Stock Value on such
day, (x) 0%, in respect of ABR Advances comprising all or a portion of the
Facility A Loans, and (y) 0.75% in respect of Eurodollar Advances comprising all
or a portion of the Facility A Loans;
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(B) FACILITY B LOAN. (I) Prior to the consummation of a Qualified
Equity Issuance and a Permitted Diversifying Acquisition, at all times during
which the applicable period set forth below is in effect: (A) with respect to
Facility B Loans consisting of ABR Advances, the percentage set forth below
under the heading "ABR MARGIN" and adjacent to such applicable period and (B)
with respect to Facility B Loans consisting of Eurodollar Advances, the
percentage set forth below under the heading "EURODOLLAR MARGIN" and adjacent to
such applicable period:
ABR Eurodollar
PERIOD MARGIN MARGIN
------ ------ ------
when the Leverage Ratio 0.50 % 1.75 %
is greater than 4.50:1.00
when the Leverage Ratio 0.25% 1.50%
is greater than 4.00:1.00
but less than or equal
to 4.50:1.00
when the Leverage Ratio 0% 1.25%
is greater than 3.50:1.00
but less than or equal
to 4.00:1.00
when the Leverage Ratio 0% 1.00%
is greater than 3.00: 1.00
but less than or equal
to 3.50:1.00
when the Leverage Ratio 0% 0.75%.
is less than or equal
to 3.00:1.00
(II) On and after the consummation of a Qualified Equity
Issuance and a Permitted Diversifying Acquisition, at all times during which the
applicable period set forth below is in effect: (A) with respect to Facility B
Loans consisting of ABR Advances, the percentage set forth below under the
beading "ABR MARGIN" and adjacent to such applicable period and (B) with respect
to Facility B Loans consisting of Eurodollar Advances, the percentage set forth
below under the heading "EURODOLLAR MARGIN" and adjacent to such applicable
period:
ABR Eurodollar
PERIOD MARGIN MARGIN
when the Leverage Ratio 0.75% 2.00%
is greater than 5.50:1.00
when the Leverage Ratio 0.50% 1.75%
is greater than 5.00: 1.00
but less than or equal
to 5.50:1.00
3
when the Leverage Ratio 0.25% 1.50%
is greater than 4.50:1.00
but less than or equal
to 5.00:1.00
when the Leverage Ratio 0% 1.25%
is greater than 4.00:1.00
but less than or equal
to 4.50:1.00
when the Leverage Ratio 0% 1.00%
is greater than 3.50:1.00
but less than or equal
to 4.00:1.00
when the Leverage Ratio 0% 0.75%
is greater than 3.00:1.00
but less than or equal
to 3.50:1.00
when the Leverage Ratio 0% 0.50%.
is less than or equal
to 3.00:1.00
(III) During the period commencing on the Effective Date and
ending on the date of delivery to the Administrative Agent of a Compliance
Certificate pursuant to Section 7. l(c) for the fiscal quarter ending June 30,
1998, the Leverage Ratio for purposes of determining the Applicable Margin shall
be based on the certificate delivered pursuant to Section 5.8. Thereafter,
changes m the Applicable Margin resulting from a change in the Leverage Ratio
shall be based upon the Compliance Certificate most recently delivered pursuant
to Section 7. l(c) and shall become effective on the date such Compliance
Certificate is delivered to the Administrative Agent and the Lenders.
Notwithstanding anything to the contrary contained in this definition, if the
Borrower shall fail to deliver to the Administrative Agent a Compliance
Certificate on or prior to any date required hereby, for purposes of calculating
the Applicable Margin, the Leverage Ratio from and including such date to the
date of delivery to the Administrative Agent of such Compliance Certificate
shall be deemed to be greater than 5.50:1.00.
"APPLICABLE PROCEEDS" means any and all proceeds of casualty insurance
or condemnation held by the Administrative Agent pursuant to the Loan Documents
in connection with a casualty or condemnation event for which the conditions for
use thereof by the Borrower or any Subsidiary, as set forth in the Loan
Documents, shall not have been satisfied.
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" means an assignment and
acceptance agreement substantially in the form of Exhibit F.
"AUSTIN STATION" means Broadcasting Station KAHK-FM, Austin, Texas,
including the related FCC Licenses and studio facilities and equipment currently
utilized in connection with its business as currently conducted.
4
"BOARD OF GOVERNORS" means the Board of Governors of the Federal
Reserve System of the United States.
"BORROWER OBLIGATIONS" means, collectively, (i) all of the obligations
and liabilities of the Borrower under the Loan Documents, and (ii) all of the
obligations and liabilities of the Borrower under each Secured Hedging
Agreement, in each case whether fixed, contingent, now existing or hereafter
arising, created, assumed, incurred or acquired, and whether before or after the
occurrence of any Event of Default under Section 9.1(h) or (i) and including any
obligation or liability in respect of any breach of any representation or
warranty and all post-petition interest and funding losses, whether or not
allowed as a claim in any proceeding arising in connection with such an event.
"BORROWING DATE" means any Business Day on which the Lenders make
Loans.
"BORROWING REQUEST" means a request for Loans substantially in the
form of Exhibit B.
"BROADCASTING STATION" means all related licenses, franchises and
permits issued under federal, state or local laws from time to time which
authorize a Person to receive or distribute, or both, over the airwaves, audio
and visual, radio or microwave signals within a geographic area for the purpose
of providing commercial broadcasting radio programming, together with all
Property owned or used in connection with the programming provided pursuant to,
and all interest of such Person to receive revenues from any other Person which
derives revenues from or pursuant to, said licenses, franchises and permits. The
term "Broadcasting Station" shall also include a corporation incorporated in the
United States which shall own one or more Broadcasting Stations.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day
on which commercial banks located in New York City are authorized or required by
law or other governmental action to be closed, PROVIDED THAT when used in
connection with a Eurodollar Advance, the term shall also exclude any day on
which ▇▇▇▇▇ are not open for dealings in dollar deposits in the London interbank
market.
"CAPITAL EXPENDITURES" means, for any period, the sum of the aggregate
of all expenditures (whether paid in cash or other consideration or accrued as a
liability) by the Borrower and the Subsidiaries on a consolidated basis in
accordance with GAAP during such period for fixed or capital assets (excluding
any capitalized interest and any such asset acquired in connection with normal
replacement and maintenance programs properly charged to current operations and
excluding any replacement assets acquired with the proceeds of insurance).
"CAPITAL LEASE OBLIGATIONS" means, with respect to any Person, the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, (a) which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP, or (b) which lease does not qualify as a Tax
Operating Lease. For purposes of this definition, "TAX OPERATING LEASE" means
any "SYNTHETIC LEASE", and any other lease (i) that is treated as a lease for
purposes of the Code, and (ii) the lessor under which is treated as the owner of
the assets subject to the lease for purposes of the Code.
5
"CAPITAL STOCK" means, as to any Person, all shares, interests,
partnership interests, limited liability company interests, participations,
rights in or other equivalents (however designated) of such Person's equity
(however designated) and any rights, warrants or options exchangeable for or
convertible into such shares, interests, participations, rights or other equity.
"CASH EQUIVALENTS" means Dollar denominated investments in (i)
securities issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (provided that the full faith
and credit of the United States is pledged in full support thereof)having
maturities of not more than one year from the date of acquisition, (ii) time
deposits, certificates of deposit and bankers acceptances maturing within 180
days from the date of acquisition thereof issued or guaranteed by or placed
with, and money market deposit accounts issued or offered by, any domestic
office of any commercial bank having a combined capital surplus and undivided
profits of not less than $100,000,000 and whose (or whose parent company's)
unsecured non-credit supported short-term debt or commercial paper rating at the
time of such acquisition (x) from Standard & Poor's Ratings Services, a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto ("S&P") is at least
A-I, or the equivalent thereof, or (y) from ▇▇▇▇▇'▇ Investors Service, Inc. or
any successor thereto ("▇▇▇▇▇'▇") is at least P-l, or the equivalent thereof,
(iii) commercial paper maturing within 90 days from the date of acquisition
thereof and having, at such date of acquisition (x) from S&P is at least A-I, or
the equivalent thereof, or (y) from ▇▇▇▇▇'▇ is at least P-I, or the equivalent
thereof, (iv) marketable direct obligations issued by any state of the United
States or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either S&P or Moody's, (v) normal business banking accounts in
federally insured institutions in amounts not exceeding the limits of such
insurance, and (vi) investments in money market funds substantially all the
assets of which are comprised of securities of the types described in clauses
(i) through (iv) above.
"CHANGE IN LAW" means (i) the adoption of any law, rule or regulation
after the Effective Date, (ii) the issuance or promulgation after the Effective
Date of any directive, guideline or request from any Governmental Authority
(whether or not having the force of law), or (iii) any change after the
Effective Date in the interpretation of any existing law, rule, regulation,
directive, guideline or request by any Governmental Authority charged with the
administration thereof.
"CODE" means the Internal Revenue Code of 1986, as the same may be
amended from time to time, or any successor thereto, and the rules and
regulations issued thereunder, as from time to time in effect.
"COLLATERAL" means any and all "COLLATERAL", as defined in any
Security Document.
"COMMITMENTS" means, collectively, the Facility A Commitment and the
Facility B Commitment.
"COMMITMENT FEES" means, collectively, the Facility A Commitment Fee
and the Facility B Commitment Fee.
6
"COMMITMENT FEE PERCENTAGE" means:
(A) FACILITY A COMMITMENT. With respect to the Facility A
Commitment of each Lender, the Commitment Fee Percentage shall be 0.25%.
(B) FACILITY B COMMITMENT. With respect to the Facility B
Commitment of each Lender, at all times during which the applicable period set
forth below is in effect, the percentage set forth below under the heading
"COMMITMENT FEE PERCENTAGE" and adjacent to such applicable period:
Commitment Fee
PERIOD PERCENTAGE
------ ---------------
when the Leverage Ratio
is greater than 4.00:1.00 0.375 %
when the Leverage Ratio
is less than or equal to
4.00:1.00 0.25 %.
(C) During the period commencing on the Effective Date and
ending on the date of delivery to the Administrative Agent of a Compliance
Certificate pursuant to Section 7. l(c) for the fiscal quarter ending June 30,
1998, the Leverage Ratio for purposes of determining the Commitment Fee
Percentage shall be based on the certificate delivered pursuant to Section 5.8.
Thereafter, changes in the Commitment Fee Percentage resulting from a change in
the Leverage Ratio shall be based upon the Compliance Certificate most recently
delivered pursuant to Section 7.1(c) and shall become effective on the date such
Compliance Certificate is delivered to the Administrative Agent and the Lenders.
Notwithstanding anything to the contrary contained in this definition, if the
Borrower shall fail to deliver to the Administrative Agent a Compliance
Certificate on or prior to any date required hereby, for purposes of calculating
the Commitment Fee Percentage, the Leverage Ratio from and including such date
to the date of delivery to the Administrative Agent of such Compliance
Certificate shall be deemed to be greater than 4.00:1.00.
"COMMUNICATIONS ACT" means the Communications Act of 1934, as amended,
and the rules and regulations issued thereunder, as from time to time in effect.
"COMPLIANCE CERTIFICATE" has the meaning set forth in Section 7.1(c).
"CONVERSION DATE" means the date on which: (i) a Eurodollar Advance is
converted to an ABR Advance, (ii) an ABR Advance is converted to a Eurodollar
Advance or (iii) a Eurodollar Advance is converted to, or continued as, a new
Eurodollar Advance.
"CREDIT PARTY" means the Administrative Agent or a Lender, as the case
may be.
"CUSTOMARY LIEN" means any of the following: (i) any Lien imposed by
law for Taxes that are not yet due or are being contested in compliance with
Section 7.4, PROVIDED THAT enforcement of such Lien is stayed pending such
contest; (ii) carders', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of business
and securing obligations that are not overdue by more than 30 days or are being
contested in Compliance with Section 7.4, PROVIDED
7
THAT enforcement of each such Lien is stayed pending such contest; (iii) pledges
and deposits made in the ordinary course of business in compliance with workers'
compensation, unemployment insurance and other social security laws or
regulations; (iv) deposits and pledges to secure the performance of bids,
tenders, contracts (other than contracts for the payment of money), leases,
statutory obligations, surety and appeal bonds and other obligations of like
nature arising in the ordinary course of business; (v) judgment liens in respect
of judgments that would not cause an Event of Default under Section 9.10); (vi)
zoning ordinances, easements, rights of way, minor defects, irregularities, and
other similar encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or interfere with
the ordinary conduct of business of the Borrower or any Subsidiary; and (vii)
Liens created under the Loan Documents.
"DEFAULT" means any event or condition which constitutes an Event of
Default or which, with the giving of notice, the lapse of time, or any other
condition, would, unless cured or waived, become an Event of Default.
"DISPOSITION" has the meaning set FORTH in Section 8.6(c).
"DISQUALIFIED STOCK" means any Capital Stock of any Person that, by
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, PROVIDED, HOWEVER, that any Capital Stock
that would constitute Disqualified Stock solely because the holders thereof have
the right to require such Person to repurchase such Capital Stock upon the
occurrence of certain events shall not constitute Disqualified Stock if the
terms of such Capital Stock provide that the Borrower may not repurchase or
redeem any such Capital Stock pursuant to such provisions unless such repurchase
or redemption complies with Section 8.7 of this Agreement.
"DOLLARS" and "$" mean lawful currency of the United States.
"EBITDA" means, with respect to any Person for any period: an amount
equal to (i) net income derived from operations of such Person for such period,
PLUS (ii) the sum of, without duplication, each of the following with respect to
such Person to the extent utilized in determining such net income from
operations for such period, (a) cash interest expense, (b) income tax expense,
(c) depreciation, amortization and other non-cash charges, and (d) extraordinary
losses from sales, exchanges and other dispositions of property not in the
ordinary course of business, MINUS (iii) the sum of, without duplication, each
of the following with respect to such Person to the extent utilized in
determining such net income from operations for such period: (a) dividend income
and (b) extraordinary gains from sales, exchanges and other dispositions of
property not in the ordinary course of business.
"EFFECTIVE DATE" means the date on which the conditions set forth in
Article 5 have been satisfied (or waived in accordance with Section 11.1).
"ELIGIBLE INSTITUTION" means (i) any commercial bank, trust company,
banking association, insurance company, financial institution, mutual fund or
pension fund acceptable to the Administrative Agent, (ii) any Lender or any
Affiliate or Subsidiary
8
thereof, or (ii) any commercial bank, trust company or banking association
having undivided capital surplus and retained earnings exceeding $100,000,000.
"ENVIRONMENTAL LAWS" has the meaning set forth in Section 4.7.
"EQUITY ISSUANCE" means the issuance of any equity securities or the
receipt of any capital contribution, in each case by the Borrower or any
Subsidiary, other than (i) any issuance of equity securities to, or receipt of
any such capital contribution from, the Borrower, (ii) the issuance of stock in
connection with an Acquisition, or (iii) the issuance of common stock pursuant
to a stock option plan, or for executive compensation, in either case in the
ordinary course of business.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations issued thereunder, as
from time to time in effect.
"ERISA AFFILIATE" means any Person which is a member of any group of
organizations within the meaning of Sections 414(b) or (c) of the Code (or,
solely for purposes of potential liability under Section 302(c)(11) of ERISA and
Section 412(c)(11) of the Code and the lien created under Section 302(0 of ERISA
and Section 412(n) of the Code, Sections 414(m) or (o) of the Code) of which the
Borrower or any Subsidiary is a member.
"ERISA EVENT" means (i) a "REPORTABLE EVENT", as defined in Section
4043 of ERISA with respect to a Pension Plan (other than an event for which the
30-day notice period is waived), (ii) the existence with respect to any Pension
Plan of an "ACCUMULATED FUNDING DEFICIENCY" (as defined in Section 412 of the
Code or Section 302 of ERISA), whether or not waived; (ii) the filing pursuant
to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a
waiver of the minimum funding standard with respect to any Pension Plan; (iv)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
under Title IV of ERISA with respect to the termination of any Pension Plan;
(vi) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Pension
Plan or Pension Plans or to appoint a trustee to administer any Pension Plan;
(vii) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability with respect to the withdrawal or: partial withdrawal from any Pension
Plan or Multiemployer Plan; or (viii) the receipt by the Borrower or any ERISA
Affiliate of any notice, or the receipt by any Multi-employer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"EURODOLLAR ADVANCES" means, collectively, the Loans (or any portions
thereof), at such time as they (or such portions) are made and/or being
maintained at a rate of interest based upon the Eurodollar Rate.
"EURODOLLAR RATE" means, with respect each Eurodollar Advance, a rate
of interest per annum, as determined by the Administrative Agent, obtained by
dividing (and then rounding to the nearest 1/16 of 1% or, if there is no nearest
1/16 of 1%, then to the next higher 1/16 of 1%):
(a) the rate of interest per annum as determined by the
Administrative Agent, equal to the rate, as reported by BNY to the
Administrative Agent, quoted
9
by BNY to leading banks in the London interbank eurodollar market as the rate at
which BNY is offering dollar deposits in an amount approximately equal to its
Specified Percentage of such Eurodollar Advance and having a period to maturity
approximately equal to the Interest Period applicable to such Eurodollar Advance
at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, by
(b) a number equal to 1.00 MINUS the aggregate of the then stated
maximum rates during such Interest Period of all reserve requirements (including
marginal, emergency, supplemental and special reserves), expressed as a decimal,
established by the Board of Governors and any other banking authority to which
BNY and other major money center banks chartered under the laws of the United
States or any State thereof are subject, in respect of eurocurrency funding
(currently referred to as "EUROCURRENCY LIABILITIES" in Regulation D) without
benefit of credit for proration, exceptions or offsets which may be available
from time to time to BNY.
"EVENT OF DEFAULT" has the meaning set forth in Section 9.1.
"EXCESS CASH FLOW" means, for any period, (i) the sum of (A) EBITDA of
the Borrower and the Subsidiaries on a consolidated basis in accordance with
GAAP for such period PLUS (B) dividends received by the Borrower on Zions Stock
during such period MINUS (ii) the sum of the following, in each case for such
period: (A) cash interest expense, (B) cash income taxes paid, (C) Capital
Expenditures, (D) all scheduled repayments of Indebtedness made during such
period (but excluding any prepayments of the Loans made pursuant to Section
2.4(h)(ii)), (E) all repayments of Facility B Loans resulting from (x) scheduled
reductions of the Aggregate Facility B Commitment pursuant to Section 2.3(b)and
(y) other permanent reductions of the Aggregate Facility B Commitment, and (F)
Restricted Payments made in cash to the extent permitted by Section 8.7(c).
"EXCLUDED TAX" means as to any Person, a Tax imposed by one of the
following jurisdictions or by any political subdivision or taxing authority
thereof: (i) the United States, (ii) the jurisdiction in which such Person is
organized, (iii) the jurisdiction in which such Person's principal office is
located, (iv) in the case of each Credit Party, any jurisdiction in which such
Credit Party is deemed to be doing business, (v) in the case of any Foreign
Credit Party, any withholding tax that is imposed on amounts payable to such
Foreign Credit Party at the time such Foreign Credit Party becomes a party to
this Agreement (or designates a new lending office) or is attributable to such
Foreign Credit Party's failure to comply with Section 3.7(c), except to the
extent that such Foreign Credit Party (or its assignor, if any) was entitled, at
the time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 3.7; which Tax (a) is any income tax or franchise tax
imposed on all or part of the net income or net profits of such Person or (b)
represents interest, fees or penalties for payment of any such income tax or
franchise tax.
"FACILITY A BORROWING BASE AMOUNT" means on any day, an amount equal
to 35 % of Zions Stock Value on such day.
"FACILITY A COMMITMENT" means, in respect of any Lender, the maximum
amount of such Lender's Facility A Exposure as set forth on the signature page
of such Lender adjacent to the heading "FACILITY A COMMITMENT" or in an
Assignment and Acceptance Agreement or other document pursuant to which it
became a Lender, as such amount may be adjusted from time to time in accordance
herewith.
10
"FACILITY A COMMITMENT FEE" has the meaning set forth in Section
3.2(a)(i).
"FACILITY A COMMITMENT PERCENTAGE" means, as of any date and with
respect to each Lender, the percentage equal to a fraction (i) the numerator of
which is such Lender's Facility A Commitment on such date, and (ii) the
denominator of which is the Aggregate Facility A Commitment on such date.
"FACILITY A COMMITMENT PERIOD" means the period from the Effective
Date through the Business Day immediately preceding the Facility A Maturity
Date.
"FACILITY A EXPOSURE" means, with respect to any Lender as of any
date, the sum as of such date of the outstanding principal balance of such
Lender's Facility A Loans.
"FACILITY A LOAN" and "FACILITY A LOANS" have the meaning set forth in
Section 2. 1 (a).
"FACILITY A MATURITY DATE" means March 31, 2001, or such earlier date
on which the Facility A Loans shall become due and payable, whether by
acceleration or otherwise.
"FACILITY B COMMITMENT" means, in respect of any Lender, the maximum
amount of such Lender's Facility B Exposure as set forth on the signature page
of such Lender adjacent to the heading "FACILITY B COMMITMENT" or in an
Assignment and Acceptance Agreement or other document pursuant to which it
became a Lender, as such amount may be adjusted from time to time in accordance
herewith.
"FACILITY B COMMITMENT FEE" has the meaning set forth in Section
3.2(a)(ii).
"FACILITY B COMMITMENT PERCENTAGE" means, as of any date and with
respect to each Lender, the percentage equal to a fraction (i) the numerator of
which is such Lender's Facility B Commitment on such date, and (ii) the
denominator of which is the Aggregate Facility B Commitment on such date.
"FACILITY B COMMITMENT PERIOD" means the period from the Effective
Date through the Business Day immediately preceding the Facility B Maturity
Date.
"FACILITY B EXPOSURE" means, with respect to any Lender as of any
date, the sum as of such date of the outstanding principal balance of such
Lender's Facility B Loans.
"FACILITY B LOAN" and "FACILITY B LOANS" have the meaning set forth in
Section 2.1(b).
"FACILITY B MATURITY DATE" means March 31, 2003, or such earlier date
on which the Facility B Loans shall become due and payable, whether by
acceleration or otherwise.
"FCC" means the Federal Communications Commission, or any Governmental
Authority succeeding to the functions thereof.
11
"FCC LICENSES" means all licenses, permits and authorizations issued
by the FCC to the Borrower or any Subsidiary for the operation of the
Broadcasting Stations.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, a rate per annum
(expressed as a decimal, rounded upwards, if necessary, to the next higher 1/100
of 1%) equal to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day, PROVIDED THAT (i) if the day for
which such rate is to be determined is not a Business Day, the Federal Funds
Effective Rate for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business Day, and
(ii) if such rate is not so published for any day, the Federal Funds Effective
Rate for such day shall be the average of the quotations for such day on such
transactions received by BNY as determined by BNY and reported to the
Administrative Agent.
"FEDERAL RESERVE FORM" means a FR Form U-1 or FR Form G-3, as
applicable, duly completed by the Administrative Agent and executed by the
Borrower, the statements made in which shall be such, in the reasonable opinion
of the Administrative Agent, as to permit the transactions contemplated hereby
in accordance with Regulation U, together with all instruments, certificates and
other documents executed or delivered in connection therewith or attached
thereto.
"FEES" has the meaning set forth in Section 2.5(a).
"FINANCIAL OFFICER" means, as to any Person, the chief financial
officer of such Person or such other officer as shall be satisfactory to the
Administrative Agent.
"FIXED CHARGE COVERAGE RATIO" means, at any time, the ratio of (i) the
sum of EBITDA PLUS dividends received by the Borrower on the Zions Stock to (ii)
Fixed Charges, in each case for the Four Quarter Trailing Period.
"FIXED CHARGES" means, for any period, the sum, without duplication,
of each of the following with respect to the Borrower and the Subsidiaries for
such period on a consolidated basis in accordance with GAAP: (i) all cash
interest expense, (ii) all payments of principal on Total Debt during such
period, including payments resulting from the scheduled reduction of the
Aggregate Facility B Commitment, (iii) cash income taxes paid, (iv) Capital
Expenditures (excluding Capital Expenditures made with insurance proceeds and
Capital Expenditures associated with an Acquisition permitted by Section 8.5
which were made within a 12 month period immediately following such
Acquisition), (v) Restricted Payments paid in cash, (vi) losses to the extent
related m newly acquired businesses, and (vii) the amount of ▇▇▇▇▇▇▇ Lone Star
Investments made during such period.
"FOREIGN CREDIT PARTY" means any Credit Party that is organized under
the laws of a jurisdiction other than the United States or any State thereof.
"FOUR QUARTER TRAILING PERIOD" means, at any date of determination,
the period of the four fiscal quarters ending on such date, or, if such date is
not the last day of a fiscal quarter, the period of the most immediately
completed four fiscal quarters.
"FRAUDULENT TRANSFER LAWS" has the meaning set forth in Section 12.1
(b).
12
"GAAP" means generally accepted accounting principles as in effect
from time to time in the United States.
"GOVERNMENTAL AUTHORITY" means any foreign, federal, state, municipal
or other government, or any department, commission, board, bureau, agency,
public authority or instrumentality thereof, or any court or arbitrator.
"GUARANTEE" of or by any Person (the "GUARANTOR") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or in effect
guaranteeing any return on any investment made by another Person, or any
Indebtedness, lease, dividend or other obligation (a "PRIMARY OBLIGATION") of
any other Person (a "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, including any obligation of the guarantor, direct or indirect (i) to
purchase any primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (A) for the purchase or
payment of any primary obligation or (B) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency of a primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the beneficiary of any primary
obligation of the ability of a primary obligor to make payment of a primary
obligation, (iv) otherwise to assure or hold harmless the beneficiary of a
primary obligation against loss in respect thereof, and (v) in respect of the
liabilities of any partnership in which a secondary obligor is a general
partner, except to the extent that such liabilities of such partnership are no
recourse to such secondary obligor and its separate property, PROVIDED, HOWEVER,
that the term "GUARANTEE" shall not include the endorsement of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee shall be an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Guarantee is made or, if not stated
or determinable, the maximum reasonably anticipated liability in respect thereof
as determined by the guarantor in good faith.
"GUARANTEE SUPPLEMENT" means a Guarantee Supplement in the form of
Exhibit I hereto.
"GUARANTOR OBLIGATIONS" means, with respect to each Subsidiary
Guarantor, all of the obligations and liabilities of such Subsidiary Guarantor
under the Loan Documents, whether fixed, contingent, now existing or hereafter
arising, created, assumed, incurred or acquired.
"HAZARDOUS SUBSTANCE" has the meaning set forth in Section 4.7.
"HEDGING AGREEMENT" means any interest rate swap, cap or collar
arrangement or any other derivative product customarily offered by: banks or
other financial institutions to their customers in order to reduce the exposure
of such customers to interest rate fluctuations.
"IMPERMISSIBLE QUALIFICATION" has the meaning set forth in Section 7.
l(a).
"INCREASE SUPPLEMENT" has the meaning set forth in Section 2.3(e).
"INDEBTEDNESS" means, as to any Person, at a particular time, all
items which constitute, without duplication, (i) indebtedness for borrowed
money, (ii) indebtedness in respect of the deferred purchase price of property
(other than trade payables incurred in the ordinary course of business), (iii)
indebtedness evidenced by notes, bonds,
13
debentures or similar instruments, (iv) obligations with respect to any
conditional sale or title retention agreement, (v) indebtedness arising under
acceptance facilities and the amount available to be drawn under all letters of
credit issued for the account of such Person and, without duplication, all
drafts drawn thereunder to the extent such Person shall not have reimbursed the
issuer in respect of the issuer's payment thereof, (vi) liabilities secured by
(or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien on property owned by such Person (other
than carriers', warehousemen's, mechanics', repairmen's or other like
non-consensual statutory Liens arising in the ordinary course of business), even
though such Person has not assumed or otherwise become liable for the payment
thereof, (vii) Capital Lease Obligations, (viii) all obligations of such Person
in respect of Disqualified Stock, and (ix) all Guarantees by such Person of
Indebtedness of others. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent such Person is liable therefor as a result
of such Person's ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such Person is
not liable therefor.
"INDEMNIFIED LIABILITIES" has the meaning set forth in Section
11.4(b).
"INDEMNIFIED TAX" means as to any Person, any Tax, except (i) an
Excluded Tax imposed on such Person and (ii) any interest, fees or penalties for
late payment thereof imposed on such Person.
"INDEMNIFIED PERSON" has the meaning set forth in Section 11.4(b).
"INSOLVENT" means with respect to any Person, (a) the sum of the
assets, at a fair valuation, of such Person does not exceed its debts, (b) such
Person has incurred debts beyond its ability to pay such debts as such debts
mature, (c) such Person believes that, in the ordinary course of its business
during the reasonably foreseeable future, it will incur debts beyond its ability
to pay such debts as such debts mature, and (d) such Person has insufficient
capital with which to conduct its business. For purposes of this definition
only, "DEBT" means any liability on a claim, and "CLAIM" means any (i) right to
payment, whether such a right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured, or unsecured, or (ii) right to an equitable remedy for breach of
performance if such breach gives rise to a payment, whether such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured,
disputed, undisputed, secured, unsecured, liquidated or unliquidated.
"INTELLECTUAL PROPERTY" means all patents, trademarks, tradenames,
copyrights, trade secrets, confidential or proprietary technical and business
information and other similar property and all licenses related thereto.
"INTEREST COVERAGE RATIO" means, as of the last day of a fiscal
quarter, the ratio of (i) the sum of (x) EBITDA of the Borrower and the
Subsidiaries for the Four Quarter Trailing Period determined on a consolidated
basis in accordance with GAAP, PLUS (y) dividends received on Zions Stock during
such period to (ii) cash interest expense of the Borrower and the Subsidiaries
for such period, determined on a consolidated basis in accordance with GAAP.
"INTEREST PERIOD" means, as to each Eurodollar Advance, the period
commencing on, as the case may be, the Borrowing Date or Conversion Date with
respect
14
thereto and ending one, two, three or six months thereafter, as selected by the
Borrower in its Borrowing Request or Notice of Conversion.
"INVESTMENTS" has the meaning set forth in Section 8.4.
"KDYL LICENSE SUBSIDIARY" means KDYL, Inc., a Utah corporation and a
Wholly Owned Subsidiary of the Borrower holding certain of the FCC Licenses of
the Borrower.
"KMGR LICENSE SUBSIDIARY" means KMGR, Inc., II, a Utah corporation and
a Wholly Owned Subsidiary of the Borrower holding certain of the FCC Licenses of
the Borrower.
"KQMB LICENSE SUBSIDIARY" means KQMB, Inc., a Utah corporation and a
Wholly Owned Subsidiary of the Borrower holding certain of the FCC Licenses of
the Borrower.
"KRSP LICENSE SUBSIDIARY" means KRSP, Inc., a Utah corporation and a
Wholly Owned Subsidiary of the Borrower holding certain of the FCC Licenses of
the Borrower.
"KSFI LICENSE SUBSIDIARY" means KSFI, Inc., II, a Utah corporation and
a Wholly Owned Subsidiary of the Borrower holding certain of the FCC Licenses of
the Borrower.
"KXRK LICENSE SUBSIDIARY" means KXRK, Inc., a Utah corporation and a
Wholly Owned Subsidiary of the Borrower holding certain of the FCC Licenses of
the Borrower.
"LEVERAGE RATIO" means, at any time, the ratio of (i)(a) Total Debt as
of such date MINUS (b) the Aggregate Facility A Exposure as of such time to (ii)
Adjusted EBITDA for the Four Quarter Trailing Period.
"LICENSE SUBSIDIARIES" means, collectively, (i) KDYL License
Subsidiary, KMGR License Subsidiary, KQMB License Subsidiary, KRSP License
Subsidiary, KSFI License Subsidiary, KXRK License Subsidiary and ▇▇▇▇▇▇▇ St.
▇▇▇▇▇▇ License Subsidiary and (ii) each other Person from time to time formed to
hold an FCC License pursuant to Sections 7.11 or 7.12.
"LICENSE SUBSIDIARY MANAGEMENT AGREEMENTS" means, collectively, the
management agreements, each substantially in the form of Exhibit J, between the
Borrower or a Subsidiary Guarantor and a License Subsidiary entered into
pursuant to Section 5.7, 7.11 or 7.12.
"LIEN" means any mortgage, pledge, hypothecation, assignment,
encumbrance, lien (statutory or other), or other security agreement or security
interest of any kind or nature whatsoever, including any conditional sale or
other title retention agreement and any capital or financing lease having
substantially the same economic effect as any of the foregoing.
15
"LINE OF BUSINESS" means, collectively, the businesses of (i) owning
and operating radio and television Broadcasting Stations, (ii) outdoor
advertising, (iii) newspaper and magazine publishing and (iv) any business
reasonably similar, complimentary, ancillary or related thereto.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Notes, the
Security Documents, each Secured Hedging Agreement, the License Subsidiary
Management Agreements, and all other agreements, instruments and documents
executed or delivered in connection herewith.
"LOAN PARTIES" means, collectively, the Borrower, each Subsidiary
Guarantor, and each License Subsidiary.
"LOANS" means, collectively, the Facility A Loans and the
Facility B Loans.
"MANAGING PERSON" means, with respect to any Person that is (i) a
corporation, its board of directors, (ii) a limited liability company, its board
of control, managing member or members, (iii) a limited partnership, its general
partner, (iv) a general partnership or a limited liability partnership, its
managing partner or executive committee or (v) any other Person, the managing
body thereof or other Person analogous to the foregoing.
"MARGIN STOCK" has the meaning set forth in Regulation U.
"MATERIAL ADVERSE" means, with respect to any change or effect, a
material adverse change in, or effect on, as the case may be, (i) the business,
assets, operations, prospects or condition, financial or otherwise, of the
Borrower and the Subsidiaries taken as a whole, (ii) the ability of any Loan
Party to perform its obligations under the Loan Documents to which it is a
party, (iii) the rights of, or benefits available to, the Credit Parties under
the Loan Documents, or (iv) the legality or enforceability of any Loan Document.
"MATERIAL LIABILITIES" means, on any date, with respect to any Loan
Party or Loan Parties: (i) indebtedness (other than Indebtedness under the Loan
Documents), (ii) the net termination obligations in respect of one or more
Hedging Agreements (calculated as if such Hedging Agreements were terminated as
of such date), and (iii) other liabilities, in each case whether as principal,
guarantor, surety or other obligor, in an aggregate principal amount exceeding
$1,000,000.
"MINIMUM AMOUNT" means in respect of (i) ABR Advances, $I,000,000 or
such amount PLUS a whole multiple of $100,000 in excess thereof, and (ii)
Eurodollar Advances, $1,000,000 or such amount PLUS a whole multiple of $250,000
in excess thereof.
"MULTIEMPLOYER PLAN" MEANS a Pension Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"NET CASH PROCEEDS" means, cash proceeds received from a Disposition,
a casualty loss or a condemnation after deduction of taxes payable in cash in
connection therewith and net of reasonable transaction expenses.
16
"NOTES" means with respect to each Lender in respect of such Lender's
Loans, a promissory note, substantially in the form of Exhibit A, payable to the
order of such Lender, each such promissory note having been made by the Borrower
and dated the Effective Date, including all replacements thereof and
substitutions therefor.
"NOTICE OF CONVERSION" has the meaning set forth in Section 3.3(a).
"OBLIGATIONS means, collectively, the Borrower Obligations and the
Guarantor Obligations.
"ORGANIZATIONAL DOCUMENTS" means as to any Person which is (i) a
corporation, the certificate or articles of incorporation and by-laws of such
Person, (ii) a limited liability company, the limited liability company
agreement or similar agreement of such Person, (iii) a partnership, the
partnership agreement or similar agreement of such Person, or (iv) any other
form of entity or organization, the organizational documents analogous to the
foregoing.
"OTHER TAXES" means any and all current or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies that
arise from any payment made hereunder or from the execution, delivery,
registration or enforcement of, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, the Loan Documents or otherwise
with respect to, the Loan Documents.
"PAYMENT OFFICE" means the office of the Administrative Agent set
forth in Section 11.2(b).
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental Authority
succeeding to the functions thereof.
"PENSION PLAN" means, at any date of determination, any employee
pension benefit plan (other than a Multiemployer Plan), the funding requirements
of which (under Section 302 of ERISA or Section 412 of the Code) are, or at any
time within the six years immediately preceding such date, were in whole or in
part, the responsibility of the Borrower or any ERISA Affiliate.
"PERFECTION CERTIFICATE" means a certificate in the form of Annex A to
the Security Agreement or any other form approved by the Administrative Agent.
"PERMITTED DIVERSIFYING ACQUISITION" means one or more Acquisitions
(permitted by Section 8.5) of radio Broadcasting Stations which (i) individually
or in the aggregate, have generated EBITDA greater than or equal to $1,000,000
for the Four Quarter Trailing Period and (ii) operate in a market outside of
Salt Lake City, Utah.
"PERMITTED LIENS" has the meaning set forth in Section 8.2.
"PERSON" means a natural person, firm, partnership, limited liability
company, joint venture, corporation, association, business enterprise, joint
stock company, unincorporated association, trust, Governmental Authority or any
other entity, whether acting in an individual, fiduciary, or other capacity, and
for the purpose of the definition of "ERISA AFFILIATE ", a trade or business.
17
"PRIME RATE" means the rate of interest per annum publicly announced
in New York City by BNY from time to time as its prime commercial lending rate,
such rate to be adjusted automatically (without notice) on the effective date of
any change in such publicly announced rate.
"QUALIFIED EQUITY OFFERING" means an Equity Issuance of common stock
of the Borrower with net proceeds to the Borrower of at least $20,000,000.
"REGISTER" has the meaning set forth in Section 3.8.
"REGULATION D, T, U AND X" means Regulations D, T, U and X,
respectively, of the Board of Governors as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
"REINVESTED PROCEEDS" means, with respect to any Disposition as of any
date of determination, the amount of Net Cash Proceeds from such Disposition
that is used by the Borrower or any Subsidiary to acquire, during the
Reinvestment Period with respect to such Disposition, property that is to be
used in the Line of Business.
"REINVESTMENT PERIOD" means the period beginning on the date that
proceeds from a Disposition are received by the Borrower or any Subsidiary, as
the case may be, and ending on the earlier of (i) 365 days after the receipt of
such proceeds, and (ii) the occurrence of an Event of Default.
"RELATED PARTIES" means, with respect to any Person, such Person's
Affiliates and the respective directors, officers, employees, agents and
advisors of such Person and such Person's Affiliates.
"REQUIRED LENDERS" means, at any time, one or more Lenders having the
sum of unused Facility A Commitments, Facility A Exposure, unused Facility B
Commitments, and Facility B Exposure greater than or equal to 66 2/3% of the sum
of the unused Facility A Commitments of all Lenders, the unused Facility B
Commitments of all Lenders, and the Aggregate Exposure.
"REQUIRED PAYMENT" has the meaning set forth in Section 3.7(a).
"RESTRICTED PAYMENT" has the meaning set forth in Section 8.7.
"SEC" means the Securities and Exchange Commission or any Governmental
Authority succeeding to the functions thereof.
"SECURED HEDGING AGREEMENT" means any Hedging Agreement entered into
by the Borrower with a counterparty that was a Lender (or an Affiliate thereof)
at the time such Hedging Agreement was entered into.
"SECURED PARTIES" has the meaning set forth in the Security Agreement.
"SECURITY AGREEMENT" means the Security Agreement, by and among the
Loan Parties party thereto and the Administrative Agent, substantially in the
form of Exhibit H.
18
"SECURITY DOCUMENTS" means, collectively, (i) upon the execution and
delivery thereof, the Security Agreement and (ii) all other instruments and
documents delivered pursuant to Section 7.9, 7.10 or 7.12 to secure any of the
Obligations.
"▇▇▇▇▇▇▇ LONE STAR" means ▇▇▇▇▇▇▇ Lone Star Media, Ltd., a Utah
limited partnership.
"▇▇▇▇▇▇▇ LONE STAR INVESTMENTS" has the meaning set forth in Section
8.4(e).
"▇▇▇▇▇▇▇ LONE STAR NOTE" has the meaning set forth in Section 8.4(e).
"▇▇▇▇▇▇▇ LONE STAR SECURITY AGREEMENT" has the meaning set forth in
Section 8.4(e).
"▇▇▇▇▇▇▇ NEW MEXICO" means ▇▇▇▇▇▇▇ New Mexico, Inc., a New Mexico
corporation and a Subsidiary of the Borrower.
"▇▇▇▇▇▇▇ NEW MEXICO CASH FLOW" means, for any period, taxable income
(or loss) of ▇▇▇▇▇▇▇ New Mexico for such period (determined without
consolidation) LESS federal, state and local taxes imposed on ▇▇▇▇▇▇▇ New Mexico
for such period PLUS the sum of the following for ▇▇▇▇▇▇▇ New Mexico for such
period (determined without consolidation): (i) depreciation (except depreciation
in respect of any Extraordinary Capital Expenditure), (ii) amortization and
(iii) interest expense. For purposes of this definition, "EXTRAORDINARY CAPITAL
EXPENDITURES" means payment (including the assumption of indebtedness of lease
obligations) for any one item that is greater than $100,000 annually and (ii)
exceeds 110% of the expenditure for the same (or substantially similar) item for
the prior year.
"▇▇▇▇▇▇▇ NEW MEXICO SHAREHOLDERS' AGREEMENT" means the Shareholders'
Agreement, dated as of June 25, 1996, among ▇▇▇▇▇▇▇ New Mexico, the Borrower and
the ▇▇▇▇-▇▇▇▇ Shareholders (as therein defined).
"▇▇▇▇▇▇▇ ST. ▇▇▇▇▇▇ LICENSE SUBSIDIARY" means ▇▇▇▇▇▇▇ St. ▇▇▇▇▇▇,
Inc., a Utah corporation and a Wholly Owned Subsidiary of the Borrower holding
certain of the FCC Licenses of the Borrower.
"SPECIAL COUNSEL" means ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, as, or such other
counsel selected by the Administrative Agent as, special counsel to the
Administrative Agent hereunder.
"SPECIFIED PERCENTAGE" means with respect to any Lender in connection
with (i) Facility A Loans and Eurodollar Advances to the extent consisting of
Facility A Loans, the percentage equal to such Lender's Facility A Commitment at
such time divided by the Aggregate Facility A Commitment at such time, and (ii)
Facility B Loans and Eurodollar Advances to the extent consisting of Facility B
Loans, the percentage equal to such Lender's Facility B Commitment at such time
divided by the Aggregate Facility B Commitment at such time.
"SUBSIDIARY" means, with respect to any Person (the "PARENT") at any
date, any other Person (i) the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared
19
in accordance with GAAP as of such date, (ii) of which securities or other
ownership interests representing more than 50% of the equity or more than 50% of
the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests or more than 50% of the profits or losses of which
are, as of such date, owned, controlled or held by the parent or one or more
subsidiaries of the parent. Unless otherwise qualified, all references to
"SUBSIDIARY" or to "SUBSIDIARIES" in this Agreement shall refer to a Subsidiary
or Subsidiaries of the Borrower. Notwithstanding the foregoing, (i) neither
▇▇▇▇▇▇▇ Satellite, Inc. nor any of its Subsidiaries shall be deemed to be
Subsidiaries of the Borrower for purposes of the Loan Documents so long as
(x)the interest therein of the Borrower or any of its other Subsidiaries is not
increased (by way of Investment or otherwise) after the Effective Date and (y)
neither ▇▇▇▇▇▇▇ Satellite, Inc. nor any its Subsidiaries engages in the active
conduct of a trade or business, and (ii) except as otherwise expressly provided
herein, ▇▇▇▇▇▇▇ Lone Star shall not be deemed to be a Subsidiary of the Borrower
for purposes of the Loan Documents.
"SUBSIDIARY GUARANTOR" means each Subsidiary party to this Agreement,
it being understood that (i) neither ▇▇▇▇▇▇▇ Satellite, Inc. nor any of its
Subsidiaries shall be required to become Subsidiary Guarantors so long as (x)
the interest therein of the Borrower or any of its other Subsidiaries is not
increased (by way of Investment or otherwise) after the Effective Date and (y)
neither ▇▇▇▇▇▇▇ Satellite, Inc. nor any its Subsidiaries engages in the active
conduct of a trade or business and (ii) ▇▇▇▇▇▇▇ Lone Star shall not be required
to become a Subsidiary Guarantor.
"TAX" means any present or future tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature and whatever called, by a
Governmental Authority, on whomsoever and wherever imposed, levied, collected,
withheld or assessed.
"TERMINATING BANK DEBT" means the Indebtedness of the Borrower under
Terminating Bank Debt Documents, including all outstanding principal, unpaid and
accrued interest, unpaid and accrued fees and other unpaid sums thereunder.
"TERMINATING BANK DEBT DOCUMENTS" means, collectively, the Credit
Agreement, dated as of November 12, 1996, by and among the Borrower, the lenders
party thereto, Bank of America National Trust and Savings Association and Union
Bank of California, N.A., as agents and all guaranties, security documents and
other documents executed and delivered in connection therewith.
"TOTAL DEBT" means, as of any date, the Indebtedness of the Borrower
and the Subsidiaries.
"TOTAL PERCENTAGE" means, as of any date and with respect to each
Lender, the percentage equal to a fraction (i) the numerator of which is the sum
of (x) the Facility A Commitment of such Lender on such date (or, if there are
no Facility A Commitments on such date, the Facility A Exposure of such Lender),
PLUS (y) the Facility B Commitment of such Lender on such date (or, if there are
no Facility B Commitments on such date, the Facility B Exposure of such Lender),
and (ii) the denominator of which is the sum of (x) the Aggregate Facility A
Commitment on such date (or, if there are no Facility A Commitments on such
date, the Aggregate Facility A Exposure on such date) PLUS (y) the Aggregate
Facility B Commitment on such date (or, if there are no Facility B Commitments
on such date, the Aggregate Facility B Exposure on such date).
20
"TRANSACTIONS" means, collectively, the transactions contemplated by
the Loan Documents.
"UNCONSOLIDATED INVESTMENT" means, as of any date, any investment made
by the Borrower or any Subsidiary in any other Person that, pursuant to GAAP as
in effect on such date, would not be consolidated with the Borrower for
financial reporting purposes immediately after giving effect to such investment.
"UNITED STATES" means the United States of America.
"WHOLLY OWNED" means, with respect to any Subsidiary of any Person,
100% of the outstanding Capital Stock of such Subsidiary is owned, directly or
indirectly, by such Person.
"WITHDRAWAL LIABILITY" means, with respect to any Person, liability of
such Person to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
"ZIONS" means Zions Bancorporation, a Utah corporation.
"ZIONS STOCK" means, at any time, common stock of Zions.
"ZIONS STOCK VALUE" means, at any time, the market value of the Zions
Stock owned by the Borrower free and clear of all Liens (other than Liens under
the Loan Documents) and held as Collateral at such time, the price per share of
which shall be determined as follows: (i) if quotations are available, the
closing sale price of Zions Stock on the preceding Business Day, as appearing on
any regularly published reporting or quotation service, or (ii) if there is no
closing sale price, any reasonable estimate by the Administrative Agent of the
fair market value of Zions Stock as of the close of business on the preceding
Business Day, such estimate to be binding and conclusive on the Credit Parties
and the Loan Parties absent manifest error.
1.2. ACCOUNTING TERMS
As used in the Loan Documents and in any certificate, opinion or other
document made or delivered pursuant thereto, accounting terms not defined in
Section 1.1, and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP. If any
change in GAAP would affect the computation of any financial ratio or
requirement set forth in this Agreement, the Credit Parties and the Borrower
shall negotiate in good faith to amend such ratio or requirement to reflect such
change in GAAP (subject to the approval of the Required Lenders), PROVIDED THAT,
until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change and (ii) the Borrower shall provide to
the Credit Parties financial statements and other documents required under this
Agreement (or such other items as the Administrative Agent may reasonably
request) setting forth a reconciliation between calculations of such ratio or
requirement before and after giving effect to such change.
21
1.3. RULES OF INTERPRETATION
(A) Unless expressly provided in a Loan Document to the contrary, (i)
the words "HEREOF", "HEREIN ", "HERETO" and "HEREUNDER" and similar words when
used in each Loan Document shall refer to such Loan Document as a whole and not
to any particular provision thereof, (ii) section, subsection, schedule and
exhibit references contained therein shall refer to section, subsection,
schedule and exhibit thereof or thereto, (iii) the words "INCLUDE" and
"INCLUDING", shall mean that the same shall be "INCLUDED, WITHOUT LIMITATION",
(iv) any definition of, or reference to, any agreement, instrument, certificate
or other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified, (v) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (vi) the words "ASSET" and
"PROPERTY" shall be construed to have the same meaning and to refer to any and
all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights, (vii) words in the singular number include the
plural, and words used therein in the plural include the singular, (viii) any
reference to a time shall refer to such time in New York; (ix) in the
computation of periods of time from a specified date to a later specified date,
the word "FROM" means "FROM AND INCLUDING" and the words "TO" and "UNTIL" each
means "TO BUT EXCLUDING", and (x) references therein to a fiscal period shall
refer to that fiscal period of the Borrower.
(B) Article and Section headings have been inserted in the Loan
Documents for convenience only and shall not be construed to be a part thereof.
ARTICLE 2. AMOUNT AND TERMS OF LOANS
2.1. LOANS
(A)FACILITY A LOANS. Subject to the terms and conditions hereof, each
Lender severally agrees to make revolving credit loans in Dollars (each a
"FACILITY A LOAN" and, as the context may require, collectively with all other
Facility A Loans of such Lender and with the Facility A Loans of all other
Lenders, the "FACILITY A LOANS") to the Borrower from time to time on any
Business Day during the Facility A Commitment Period, PROVIDED THAT after giving
effect thereto: (i) such Lender's Facility A Exposure would not exceed such
Lender's Facility A Commitment, and (ii) the Aggregate Facility A Exposure would
not exceed the lesser of (x) the Facility A Borrowing Base Amount and (y) the
Aggregate Facility A Commitment. During such period, the Borrower may borrow,
prepay in whole or in part and reborrow under the Facility A Commitments, all in
accordance with the terms and conditions of this Agreement. The outstanding
principal balance of each Facility A Loan shall be due and payable on the
Facility A Maturity Date.
(B)FACILITY B LOANS. Subject to the terms and conditions hereof, each
Lender severally agrees to make revolving credit loans in Dollars (each a
"FACILITY B LOAN" and, as the context may require, collectively with all other
Facility B Loans of such Lender and with the Facility B Loans of all other
Lenders, the "FACILITY B LOANS") to the Borrower from time to time on any
Business Day during the Facility B Commitment Period, PROVIDED THAT after giving
effect thereto (i) such Lender's Facility B Exposure would not exceed such
Lender's Facility B Commitment, and (ii) the Aggregate Facility B Exposure would
not exceed the Aggregate Facility B Commitment. During such period,
22
the Borrower may borrow, prepay in whole or in part and reborrow under the
Facility B Commitments, all in accordance with the terms and conditions of this
Agreement. The outstanding principal balance of each Facility B Loan shall be
due and payable on the Facility B Maturity Date.
2.2. PROCEDURE FOR BORROWING
(A) BORROWING REQUEST. To request a Loan, the Borrower shall notify
the Administrative Agent by the delivery of a Borrowing Request, which shall be
sent by facsimile and shall be irrevocable (confirmed promptly, and in any event
within five Business Days, by the delivery to the Administrative Agent of a
Borrowing Request manually signed by the Borrower), no later than 1:00 p.m.,
three Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Advances, and 11:00 a.m., on the requested Borrowing Date, in the
case of ABR Advances, specifying (A) the aggregate principal amount to be
borrowed, (B) the requested Borrowing Date, (C) whether such borrowing is to
consist of a Facility A Loan, a Facility B Loan or a combination thereof, (D)
whether such borrowing is to consist of one or more Eurodollar Advances, ABR
Advances, or a combination thereof and (E) if the Loan is to consist of one or
more Eurodollar Advances, the amount and length of the Interest Period for each
Eurodollar Advance. The amount of (i) each Eurodollar Advance to be made on a
Borrowing Date, when aggregated with all amounts to be converted to, or
continued as, a Eurodollar Advance on such date and having the same Interest
Period as such first Eurodollar Advance, shall equal the Minimum Amount and (ii)
each ABR Advance made on each Borrowing Date shall equal the Minimum Amount or,
if less, the unused portion of the Aggregate Facility A Commitment or Facility B
Commitment, as the case may be.
(B)FUNDING BY LENDERS. Upon receipt of each Borrowing Request, the
Administrative Agent shall promptly notify each Lender thereof. Subject to its
receipt of the notice referred to in the preceding sentence, each Lender will
make the amount of its Specified Percentage of the requested Loans available to
the Administrative Agent for the account of the Borrower at the Payment Office
not later than 2:00 p.m. on the relevant Borrowing Date requested by the
Borrower, in funds immediately available to the Administrative Agent at such
office. The amounts so made available to the Administrative Agent on such
Borrowing Date will then, subject to the satisfaction of the terms and
conditions of this Agreement, be made available on such date to the Borrower by
the Administrative Agent at the Payment Office by crediting the account of the
Borrower on the books of the Administrative Agent at such office with the
aggregate of said amounts (in like funds) received by the Administrative Agent.
(C) FAILURE TO FUND. Unless the Administrative Agent shall have
received notice prior to a proposed Borrowing Date (or, in the case of a
borrowing of ABR Advances, prior to 12:00 noon on such Borrowing Date) from a
Lender (by telephone or otherwise, such notice to be promptly confirmed by
facsimile or other writing) that such Lender will not make available to the
Administrative Agent such Lender's share of the requested Loans, the
Administrative Agent may assume that such Lender has made such share available
to the Administrative Agent on the Borrowing Date in accordance with this
Section and, in reliance upon such assumption, make available to the Borrower on
such Borrowing Date a corresponding amount. If and to the extent such Lender
shall not have so made such share available to the Administrative Agent, such
Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount (to the extent not previously paid
by the other), together with interest thereon for each day from the date such
amount is made available to the Borrower to the date such
23
amount is paid to the Administrative Agent, at a rate per annum equal to, in the
case of the Borrower, interest rate otherwise applicable to such Loan, and, in
the case of such Lender, at a rate of interest per annum equal to the greater of
the Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rates on interbank compensation. If
such Lender shall pay to the Administrative Agent such corresponding amount,
such amount so paid shall constitute such Lender's Loan as part of the relevant
borrowing for purposes of this Agreement. The failure of any Lender to provide
such Lender's share of the requested Loans shall not relieve any other Lender of
its obligations hereunder to provide its share of the requested Loans.
2.3. TERMINATION, REDUCTION OR INCREASES OF COMMITMENTS
(A)VOLUNTARY TERMINATION OR REDUCTIONS. The Borrower may, upon at
least three Business Days' prior written notice to the Administrative Agent, at
any time (A) when the Aggregate Facility A Exposure shall be zero, terminate all
of the Facility A Commitments, (B) when the Aggregate Facility B Exposure shall
be zero, terminate all of the Facility B Commitments, (C) at any time and from
time to time when the Aggregate Facility A Commitment shall exceed the Aggregate
Facility A Exposure (after giving effect to any contemporaneous prepayment of
Facility A Loans), permanently reduce the Aggregate Facility A Commitment or (D)
at any time and from time to time when the Aggregate Facility B Commitment shall
exceed the Aggregate Facility B Exposure (after giving effect to any
contemporaneous payment or payment of Facility B Loans), permanently reduce the
Aggregate Facility B Commitment by a sum not greater than the amount of such
excess, PROVIDED, HOWEVER, that each such partial reduction shall be in the
amount of $1,000,000 or such amount PLUS a whole multiple of $250,000 in excess
thereof.
(B)SCHEDULED MANDATORY REDUCTIONS OF THE AGGREGATE FACILITY B
COMMITMENT. On each of the dates set forth below, the Aggregate Facility B
Commitment shall be automatically reduced by the amount equal to the Aggregate
Facility B Commitment as of the Effective Date multiplied by the percentage (as
the same may be adjusted pursuant to Section 2.3(e)) set forth below adjacent to
such date:
DATE PERCENTAGE
---- -----------
June 30, 2000 3.75%
September 30, 2000 3.75%
December 31, 2000 3.75%
March 31, 2001 3.75%
June 30, 2001 8.75%
September 30, 2001 8.75%
December 31, 2001 8.75%
March 31, 2002 8.75%
June 30, 2002 12.50%
September 30, 2002 12.50%
December 31, 2002 12.50%
Facility B Maturity
Date 12.50%
(C) OTHER MANDATORY REDUCTIONS. The Aggregate Facility B Commitment
shall be permanently reduced at the times and in the amounts required by Section
2.4(b).
24
(D)REDUCTIONS IN GENERAL. Each reduction of the Aggregate Facility A
Commitment and Aggregate Facility B Commitment shall be made by reducing each
Lender's Facility A Commitment and Facility B Commitment by an amount equal to
such Lender's Specified Percentage of such reduction. Simultaneously with each
reduction of the Aggregate Facility A Commitment and Aggregate Facility B
Commitment, the Borrower shall pay the Facility A Commitment Fee or Facility B
Commitment Fee, as the case may be, accrued on the amount by which the Aggregate
Facility A Commitment and Aggregate Facility B Commitment has been reduced.
(E)INCREASES OF FACILITY A COMMITMENTS AND FACILITY B COMMITMENTS.
Provided that immediately before and after giving effect thereto, no Default
shall or would exist, the Borrower may at any time and from time to time prior
to January 31, 2000, at its sole cost and expense, request any one or more of
the Lenders to increase (such decision to be within the sole and absolute
discretion of such Lender) its Facility A Commitment or Facility B Commitment,
or any other Eligible Institution reasonably satisfactory to the Administrative
Agent to provide a new Facility A Commitment or Facility B Commitment, by
submitting an Increase Supplement in the form of Exhibit G (an "INCREASE
SUPPLEMENT"), duly executed by the Borrower and each such Lender or Eligible
Institution, as the case may be. If such Increase Supplement is in all respects
reasonably satisfactory to the Administrative Agent, the Administrative Agent
shall execute such Increase Supplement and deliver a copy thereof to the
Borrower and each such Lender or Eligible Institution, as the case may be. Upon
execution and delivery of such Increase Supplement, (i) in the case of each such
Lender, such Lender's Facility A Commitment and/or Facility B Commitment shall
be increased to the amount set forth in such Increase Supplement, (ii) in the
case of each such Eligible Institution, such Eligible Institution shall become a
party hereto and shall for all purposes of the Loan Documents be deemed a
"LENDER" with a Facility A Commitment and/or Facility B Commitment in the amount
set forth in such Increase Supplement, (iii) with respect to each of the
remaining scheduled mandatory reductions of the Aggregate Facility B Commitment
set forth in Section 2.3(b), the percentage thereof shall be increased, on a pro
rata basis, so that such remaining reductions would cause the Aggregate Facility
B Commitment to be reduced to zero ($0.00) on the Facility B Maturity Date, and
(iv) the Borrower shall contemporaneously therewith execute and deliver to the
Administrative Agent a Note for each such Eligible Institution providing a new
Facility A Commitment or Facility B Commitment; PROVIDED, HOWEVER, that:
(A) immediately after giving effect thereto, (1) the Aggregate
Facility A Commitment shall not have been increased pursuant to this subsection
(e) to an amount greater than $40,000,000 and (2) the Aggregate Facility B
Commitment shall not HAVE been increased pursuant to this subsection (e) to an
amount greater than $55,000,000;
(B) each such increase shall be in an amount not less than
$5,000,000 or such amount PLUS an integral multiple of $1,000,000;
(C) each of the Facility A Commitments and the Facility B
Commitments shall not be increased on more than two occasions;
(D) if Facility A Loans or Facility B Loans shall be outstanding
immediately after giving effect to such increase, each such Lender and each such
Eligible Institution shall enter into a master assignment and acceptance
agreement with the other Lenders in all respects reasonably satisfactory to such
other Lenders,
25
pursuant to which each such other Lender shall assign to it a portion of its
Facility A Loans or Facility B Loans, as the case may be, necessary to reflect
proportionately the Facility A Commitments and Facility B Commitments as
adjusted in accordance with this subsection (e), and in connection with such
master assignment and acceptance agreement each such other Lender may treat the
assignment of Eurodollar Advances as a prepayment of such Eurodollar Advances
for purposes of Section 3.5 and the Administrative Agent hereby waives the
assignment fee payable pursuant to Section 11.5(b);
(E) each such Eligible Institution shall have delivered to the
Administrative Agent and the Borrower all forms, if any, that are required to be
delivered by such Eligible Institution pursuant to Section 3.7(c); and
(F) the Administrative Agent shall have received a new Federal
Reserve Form for each existing Lender and each Eligible Institution becoming a
Lender and such other certificates, legal opinions and other items as it shall
reasonably request in connection with such increase.
2.4. PREPAYMENTS OF THE LOANS
(A) VOLUNTARY PREPAYMENTS. The Borrower shall have the right at any
time and from time to time to prepay all or any portion of the Loans without
premium or penalty (but subject to Section 3.5), by delivering to the
Administrative Agent an irrevocable written notice thereof at least one Business
Day prior to the proposed prepayment date, in the case of Loans consisting of
ABR Advances, and at least three Business Days prior to the proposed prepayment
date, in the case of Loans consisting of Eurodollar Advances, specifying (A)
whether the Loans to be prepaid are Facility A Loans, Facility B Loans or a
combination thereof, (B) whether such Loans consist of ABR Advances, Eurodollar
Advances, or a combination thereof, (C) the amount to be prepaid and (D) the
date of prepayment, whereupon the amount specified in such notice shall be due
and payable on the date specified. Upon receipt of each such notice, the
Administrative Agent shall promptly notify each Lender thereof. Each partial
prepayment of the Loans pursuant to this subsection shall be in an amount equal
to the Minimum Amount, or, if less, the outstanding principal balance of the
Facility A Loans or Facility B Loans, as the case may be. After giving effect to
any partial prepayment with respect to Eurodollar Advances which were made
(whether as the result of a borrowing, a conversion or a continuation) on the
same date and which had the same Interest Period, the outstanding principal
balance of such Eurodollar Advances shall equal or exceed (subject to Section
3.3) the Minimum Amount.
(B)MANDATORY PREPAYMENTS AND FACILITY B COMMITMENT REDUCTIONS RELATING
TO DISPOSITIONS, EXCESS CASH FLOW AND THE RECEIPT OF APPLICABLE PROCEEDS. On or
before each date set forth below, the Aggregate Facility B Commitment shall be
permanently reduced in the amounts set forth below and applicable to the date
specified and, in connection therewith, the Borrower shall prepay the aggregate
unpaid principal amount of the Facility B Loans as set forth in Section 2.4(d):
(I) on the last day of the Reinvestment Period for each
Disposition described in Section 8.6(c), by an amount equal to 100% of the
Adjusted Net Cash Proceeds with respect to such Disposition;
26
(II) if at the end of either of the fiscal years ended December
31, 2001 or December 31, 2002, the Leverage Ratio is equal to or greater than
3.00:1.00, on March 31st of each immediately succeeding year, by an amount equal
to the Excess Cash Flow in respect of such fiscal year MINUS THE amount of
Restricted Payments made during such year to the extent permitted by Section
g.7(d);
(III) on the date of the making of any Restricted Payment
pursuant to Section 8.7(b) by an amount equal to such Restricted Payment; and
(IV) in an amount equal to all Applicable Proceeds (A) in excess
of amounts used to replace or repair any properties or (B) which are NOT used or
designated to replace or repair properties within one year after receipt
thereof, PROVIDED THAT the Borrower or the applicable Subsidiary Guarantor shall
have commenced the restoration or replacement process (including the making of
appropriate filings and requests for approval) within 45 days after such
casualty or after the receipt of any such condemnation proceeds, as the case may
be, and diligently pursues the same through completion.
(C)MANDATORY PREPAYMENT OF FACILITY A LOANS RELATING TO FACILITY A
BORROWING BASE AMOUNT. If on any Business Day the Aggregate Facility A Exposure
shall exceed the Facility A Borrowing Base Amount, the Borrower shall, on such
day, prepay the Facility A Loans in an amount equal m the lesser of (i) such
excess and (ii) the outstanding principal balance of the Facility A Loans. Until
such excess has been prepaid, the Borrower shall not be entitled to borrow
additional Facility A Loans.
(D)OTHER MANDATORY PREPAYMENTS. Simultaneously with each reduction or
termination of the Aggregate Facility A Commitment or the Aggregate Facility B
Commitment, the Borrower shall prepay the Facility A Loans or Facility B Loans,
as the case may be, by an amount equal to the excess, if any, of the Aggregate
Facility A Exposure MINUS the Aggregate Facility A Commitment or the Aggregate
Facility B Exposure MINUS the Aggregate Facility B Commitment, as the case may
be, in each case after giving effect to such reduction or termination.
(E)IN GENERAL. Simultaneously with each prepayment of a Loan, the
Borrower shall prepay all accrued interest on the amount prepaid through the
date of prepayment.
2.5. PAYMENTS; PRO RATA TREATMENT AND SHARING OF SET-OFFS
(A) PAYMENTS GENERALLY. (i) Except as provided below, all payments,
including prepayments, of principal and interest on the Loans, of the Commitment
Fee and of all other amounts to be paid by the Borrower under the Loan Documents
(the Commitment Fee, together with all of such other fees, being sometimes
hereinafter collectively referred to as the "FEES") shall be made to the
Administrative Agent, prior to 1:00 p.m. on the date such payment is due, for
the account of the applicable Credit Parties at the Payment Office, in Dollars
and in immediately available funds, without set-off, offset, recoupment or
counterclaim. The failure of the Borrower to make any such payment by such time
shall not constitute a Default, PROVIDED THAT such payment is made on such due
date, but any such payment made after 1:00 p.m. on such due date shall be deemed
to have been made on the next Business Day for the purpose of calculating
interest on amounts outstanding on the Loans. As between the Borrower and each
Credit Party, any
27
payment by the Borrower to the Administrative Agent for the account of such
Credit Party shall be deemed to be payment by the Borrower to such Credit Party.
Notwithstanding the foregoing, all payments pursuant to Sections 3.5, 3.6, 3.7,
and 11.4 shall be paid directly to the Credit Party entitled thereto. If any
payment under the Loan Documents shall be due and payable on a day which is not
a Business Day, the due date thereof (except as otherwise provided with respect
to Interest Periods) shall be extended to the next Business Day and (except with
respect to payments in respect of the Fees) interest shall be payable at the
applicable rate specified herein during such extension, PROVIDED, HOWEVER, that
if such next Business Day would be after (A) with respect to Facility A Loans,
the Facility A Maturity Date and (B) with respect to Facility B Loans, the
Facility B Maturity Date, such payment shall instead be due on the immediately
preceding Business Day.
(II) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied (A) FIRST,
towards payment of interest and fees then due under the Loan Documents, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, (B) SECOND, towards payment of principal then
due in respect of Facility B Loans, ratably among the parties entitled thereto
in accordance with the amounts of principal then due to such parties, and (C)
THIRD, towards payment of principal then due in respect of Facility A Loans,
ratably among the parties entitled thereto in accordance with the amounts of
principal then due to such parties.
(B) SET-OFF. In addition to any rights and remedies of the Credit
Parties provided by law, upon and after the acceleration of all the obligations
of the Borrower under the Loan Documents to which it is a party, or at any time
upon the occurrence and during the continuance of an Event of Default under
Sections 9.1(a) or (b), each Credit Party shall have the right, without prior
notice to any Loan Party, any such notice being expressly waived by each Loan
Party to the extent not prohibited by applicable law, to set-off and apply
against any indebtedness, whether matured or unmatured, of such Loan Party to
such Credit Party any amount owing from such Credit Party to such Loan Party,
at, or at any time after, the happening of any of the above-mentioned events. To
the extent not prohibited by applicable law, the aforesaid right of set-off may
be exercised by any Credit Party against such Loan Party or against any trustee
in bankruptcy, custodian, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment creditor of such Loan
Party, or against anyone else claiming through or against such Loan Party, or
such trustee in bankruptcy, custodian, debtor in possession, assignee for the
benefit of creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Credit Party prior to the making, filing or issuance, or
service upon such Credit Party of, or of notice of, any such petition,
assignment for the benefit of creditors, appointment or application for the
appointment of a receiver, or issuance of execution, subpoena, order or warrant.
Each Credit Party agrees promptly to notify the Borrower and the Administrative
Agent after any such set-off and application made by such Credit Party, PROVIDED
THAT the failure to give such notice shall not affect the validity of such
set-off and application.
(C) ADJUSTMENTS. If any Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) in respect of the principal of or interest on its Loans, resulting in
such Lender receiving payment of a greater proportion of the aggregate principal
amount of, or accrued interest on, such Loans than the proportion received by
any other Lender, then the Lender receiving such
28
greater proportion shall promptly purchase, at face value for cash,
participations in the Loans to the extent necessary so that the benefit of such
payment shall be shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective Loans, PROVIDED,
HOWEVER, that (i) if all or any portion of such payment is thereafter recovered,
such participations shall be rescinded and the purchase price returned, in each
case to the extent of such recovery, and (ii) the provisions of this Section
2.6(c) shall not be construed to apply to any payment made by the Borrower
pursuant to and in accordance with the express terms of this Agreement or any
payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this Section 2.6(c) shall apply). The Borrower agrees that any Lender that
purchased a participation pursuant to this subsection may exercise such rights
to payment (including the right of set-off) with respect to such participation
as fully as such Lender were the direct creditor of the Borrower in the amount
of such participation.
ARTICLE 3. INTEREST, FEES, YIELD PROTECTIONS, ETC.
3.1. INTEREST RATE AND PAYMENT DATES
(A) ADVANCES. Each (i) ABR Advance shall bear interest at a rate per
annum equal to the Alternate Base Rate PLUS the Applicable Margin and (ii)
Eurodollar Advance shall bear interest at a rate per annum equal to the
Eurodollar Rate for the applicable Interest Period PLUS the Applicable Margin.
(B) EVENT OF DEFAULT; LATE CHARGES. Notwithstanding the foregoing,
after the occurrence and during the continuance of an Event of Default, the
outstanding principal balance of the Loans shall bear interest at a rate per
annum equal to 2% PLUS THE rate otherwise applicable to such Loans as provided
in subsection (a) above. If any interest, Fee or other amount payable under the
Loan Documents is not paid when due (whether at the stated maturity thereof, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum equal to the Alternate Base Rate PLUS 2%, from the date of such
nonpayment until paid in full (whether before or after the entry of a judgment
thereon). All such interest shall be payable on demand.
(C) PAYMENT OF INTEREST. Except as otherwise provided in subsection
(b) above, interest shall be payable in arrears on the following dates and upon
each payment (including prepayment) of the Loans:
(I) in the case of an ABR Advance, on the last Business Day of
each March, June, September and December commencing on the first of such days to
occur after such ABR Advance is made or any Eurodollar Advance is converted to
an ABR Advance;
(II) in the case of a Eurodollar Advance, on the last day of the
Interest Period applicable thereto and, if such Interest Period is longer than
three months, the last Business Day of each three month interval occurring
during such Interest Period;
(III) in the case of all Advances constituting all or a portion
of the Facility A Loans, on the Facility A Maturity Date; and
29
(IV) in the case of all Advances constituting all or a portion of
the Facility B Loans, on the Facility B Maturity Date.
(D) COMPUTATIONS. Interest on (i) ABR Advances to the extent based on
the Prime Rate shall be calculated on the basis of a 365 or 366-day year (as the
case may be), and (ii) ABR Advances to the extent based on the Federal Funds
Effective Rate and on Eurodollar Advances shall be calculated on the basis of a
360-day year, in each case, for the actual number of days elapsed. The
Administrative Agent shall, as soon as practicable, notify the Borrower and the
Lenders of the effective date and the amount of each such change in the Prime
Rate, but any failure to so notify shall not in any manner affect the obligation
of the Borrower to pay interest on the Loans in the amounts and on the dates
required. Each determination of a rate of interest by the Administrative Agent
pursuant to the Loan Documents shall be conclusive and binding on all parties
hereto absent manifest error. The Borrower acknowledges that to the extent
interest payable on ABR Advances is based on the Prime Rate, such rate is only
one of the bases for computing interest on loans made by the Lenders, and by
basing interest payable on ABR Advances on the Prime Rate, the Lenders have not
committed to charge, and the Borrower has not in any way bargained for, interest
based on a lower or the lowest rate at which the Lenders may now or in the
future make loans to other borrowers.
3.2 FEES
(A) COMMITMENT FEES.
(I) FACILITY A COMMITMENT FEE. The Borrower agrees to pay to the
Administrative Agent, for the account of the Lenders in accordance with each
Lender's Facility A Commitment Percentage, a fee (the "FACILITY A COMMITMENT
FEE"), during the Facility A Commitment Period, at a rate per annum equal to the
Commitment Fee Percentage on the average daily unused Aggregate Facility A
Commitment. The Facility A Commitment Fee shall be payable (A) quarterly in
arrears on the last Business Day of each March, June, September and December
during such period, commencing on the first such day following the Effective
Date, (B) on the date of any reduction in the Aggregate Facility A Commitment
(to the extent of such reduction) and (C) on the Facility A Maturity Date. The
Facility A Commitment Fee shall be calculated on the basis of a 365 or 366 day
year, as the case may be, for the actual number of days elapsed.
(II) FACILITY B COMMITMENT FEE. The Borrower agrees to pay to the
Administrative Agent, for the account of the Lenders in accordance with each
Lender's Facility B Commitment Percentage, a fee (the "FACILITY B COMMITMENT
FEE"), during the Facility B Commitment Period, at a rate per annum equal to
Commitment Fee Percentage on the average daily unused Aggregate Facility B
Commitment. The Facility B Commitment Fee shall be payable (A) quarterly in
arrears on the last Business Day of each March, June, September and December
during such period, commencing on the first such day following the Effective
Date, (B) on the date of any reduction in the Aggregate Facility B Commitment
(to the extent of such reduction) and (C) on the Facility B Maturity Date. The
Facility B Commitment Fee shall be calculated on the basis of a 365 or 366 day
year, as the case may be, for the actual number of days elapsed.
30
(B) ADMINISTRATIVE AGENT'S FEES. The Borrower agrees to pay to the
Administrative Agent, for its own account, such other fees as have been agreed
to in writing by the Borrower and the Administrative Agent.
3.3. CONVERSIONS
(A) The Borrower may elect from time to time to convert one or more
Eurodollar Advances to ABR Advances by giving the Administrative Agent at least
one Business Day's prior irrevocable notice of such election, specifying the
amount to be convened, provided, that any such conversion of Eurodollar Advances
shall only be made on the last day of the Interest Period applicable thereto. In
addition, the Borrower may elect from time to time to (i) convert ABR Advances
comprising all or a portion of Loans to Eurodollar Advances and (ii) continue
Eurodollar Advances as new Eurodollar Advances by selecting a new Interest
Period therefor, in each case by giving the Administrative Agent at least three
Business Days' prior irrevocable notice of such election, in the case of a
conversion to, or continuation of, Eurodollar Advances, specifying the amount to
be so converted or continued and the initial Interest Period relating thereto,
PROVIDED THAT any such conversion of ABR Advances to Eurodollar Advances shall
only be made on a Business Day and any such continuation of Eurodollar Advances
as new Eurodollar Advances shall only be made on the last day of the Interest
Period applicable to the Eurodollar Advances which are to be continued as such
new Eurodollar Advances. Each such notice (a "NOTICE OF CONVERSION") shall be
substantially in the form of Exhibit C, shall be irrevocable and shall be given
by facsimile (confirmed promptly, and in any event within five Business Days, by
the delivery to the Administrative Agent of a Notice of Conversion manually
signed by the Borrower). The Administrative Agent shall promptly provide the
Lenders with notice of each such election. Advances may be converted or
continued pursuant to this Section 3.3 in whole or in part, PROVIDED THAT the
amount to be converted to, or continued as, each Eurodollar Advance, when
aggregated with any Eurodollar Advance to be made on such date in accordance
with Section 2.2 and having the same Interest Period as such first Eurodollar
Advance, shall equal the Minimum Amount.
(B) Notwithstanding anything in this Agreement to the contrary, upon
the occurrence and during the continuance of an Event of Default, the Borrower
shall have no right to elect to convert any existing ABR Advance to a new
Eurodollar Advance or to continue any existing Eurodollar Advance as a new
Eurodollar Advance. In such event, all ABR Advances shall be automatically
continued as ABR Advances and all Eurodollar Advances shall be automatically
converted to ABR Advances on the last day of the current Interest Period
applicable to such Eurodollar Advance.
(C) Each conversion or continuation shall be effected by each Lender
by applying the proceeds of its new ABR Advance or Eurodollar Advance, as the
case may be, to its Advances (or portion thereof) being converted (it being
understood that any such conversion or continuation shall not constitute a
borrowing for purposes of Articles 4, 5 or 6).
3.4. CONCERNING INTEREST PERIODS
(A) No Interest Period in respect of a Eurodollar Advance comprising
all or a portion of (i) a Facility A Loan shall end after the Facility A
Maturity Date or (ii) a Facility B Loan shall end after the Facility B Maturity
Date.
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(B) With respect to Eurodollar Advances, any Interest Period which
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.
(C) If an Interest Period would otherwise end on a day which 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.
(D) If the Borrower shall have failed to timely elect a Eurodollar
Advance under Section 2.2 or 3.3, as the case may be, in connection with any
borrowing of, conversion to, or continuation of, a Eurodollar Advance, such
borrowing or such Advance requested to be converted to, or continued as, a
Eurodollar Advance shall thereafter be an ABR Advance until such time, if any,
as the Borrower shall elect a new Eurodollar Advance pursuant to Section 3.3.
(E) The Borrower shall not be permitted to have more than five
Eurodollar Advances outstanding at any one time, it being agreed that each
borrowing of a Eurodollar Advance pursuant to a single Borrowing Request shall
constitute the making of one Eurodollar Advance for the purpose of calculating
such limitation.
3.5. FUNDING LOSS
Notwithstanding anything contained herein to the contrary, if the
Borrower shall fail to borrow, convert or continue a Eurodollar Advance on a
Borrowing Date or Conversion Date after it shall have given notice to do so in
which it shall have requested a Eurodollar Advance, or if a Eurodollar Advance
shall be terminated for any reason prior to the last day of the Interest Period
applicable thereto, or if, while a Eurodollar Advance is outstanding, any
repayment or prepayment of such Eurodollar Advance is made for any reason
(including as a result of acceleration or illegality) on a date which is prior
to the last day of the Interest Period applicable thereto, the Borrower agrees
to indemnify each Lender against, and to pay on demand directly to such Lender
the amount (calculated by such Lender using any reasonable method chosen by such
Lender which is customarily used by such Lender for such purpose) equal to any
loss or out-of-pocket expense suffered by such Lender as a result of such
failure to borrow convert, or continue, or such termination, repayment or
prepayment, including any loss, cost or expense suffered by such Lender in
liquidating or employing deposits acquired to fund or maintain the funding of
such Eurodollar Advance or redeploying funds prepaid or repaid, in amounts which
correspond to such Eurodollar Advance and any reasonable internal processing
charge customarily charged by such Lender in connection therewith.
3.6. INCREASED COSTS; ILLEGALITY, ETC.
(A) INCREASED COSTS. If any Change in Law shall impose, modify or make
applicable any reserve, special deposit, compulsory loan, assessment, increased
cost or similar requirement against assets held by, or deposits of, or advances
or loans by, or other credit extended by, or any other acquisition of funds by,
any office of any Credit Party in respect of its Eurodollar Advances which is
not otherwise included in the determination of a Eurodollar Rate and the result
thereof is to increase the cost to any Credit Party of making, renewing,
converting or maintaining its Eurodollar Advances or its
32
commitment to make such Eurodollar Advances, or to reduce any amount receivable
under the Loan Documents in respect of its Eurodollar Advances, then, in any
such case, the Borrower shall pay such Credit Party such additional amounts as
are sufficient to compensate such Credit Party for such additional cost or
reduction in such amount receivable which such Credit Party deems to be material
as determined by such Credit Party.
(B) CAPITAL ADEQUACY. If any Credit Party determines that any Change
in Law relating to capital requirements has or would have the effect of reducing
the rate of return on such Credit Party's capital or on the capital of such
Credit Party's holding company, if any, on the Loans to a level below that which
such Credit Party (or its holding company) would have achieved or would
thereafter be able to achieve but for such Change in Law (after taking into
account such Credit Party's (or such holding company's) policies regarding
capital adequacy), the Borrower shall pay to such Credit Party (or such holding
company) such additional amount or amounts as will compensate such Credit Party
(or such holding company) for such reduction.
(C) ILLEGALITY. Notwithstanding any other provision hereof, if any
Lender shall reasonably determine that any law, regulation, treaty or
directive,or any change therein or in the interpretation or application thereof,
shall make it unlawful for such Lender to make or maintain any Eurodollar
Advance as contemplated by this Agreement, such Lender shall promptly notify the
Borrower and the Administrative Agent thereof, and (i) the commitment of such
Lender to make Such Eurodollar Advances or convert ABR Advances to Eurodollar
Advances shall forthwith be suspended, (ii) such Lender shall fund its portion
of each requested Eurodollar Advance as an ABR Advance and (iii) such Lender's
Loans then outstanding as such Eurodollar Advances, if any, shall be converted
automatically to ABR Advances on the last day of the then current Interest
Period applicable thereto or at such earlier time as may be required by law. The
commitment of any such Lender with respect to Eurodollar Advances shall be
suspended until such Lender shall notify the Administrative Agent and the
Borrower that the circumstances causing such suspension no longer exist. Upon
receipt of such notice by each of the Administrative Agent and the Borrower,
such Lender's commitment to make or maintain Eurodollar Advances shall be
reinstated.
(D) SUBSTITUTED INTEREST RATE. In the event that (i) the
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower) that by reason of circumstances
affecting the interbank eurodollar market either adequate and reasonable means
do not exist for ascertaining the Eurodollar Rate applicable pursuant to Section
3.1 or (ii) the Required Lenders shall have notified the Administrative Agent
that they have determined (which determination shall be conclusive and binding
on the Borrower) that the applicable Eurodollar Rate will not adequately and
fairly reflect the cost to such Lenders of maintaining or funding loans bearing
interest based on such Eurodollar Rate, with respect to any portion of the Loans
that the Borrower has requested be made as Eurodollar Advances or Eurodollar
Advances that will result from the requested conversion or continuation of any
portion of the Advances into or of Eurodollar Advances (each, an "AFFECTED
ADVANCE"), the Administrative Agent shall promptly notify the Borrower and the
Lenders (by telephone or otherwise, to be promptly confirmed in writing) of such
determination, on or, to the extent practicable, prior to the requested
Borrowing Date or Conversion Date for such Affected Advances. If the
Administrative Agent shall give such notice, (a) any Affected Advances shall be
made as ABR Advances, (b) the Advances (or any portion thereof) that were to
have been converted to Affected Advances shall be converted to ABR Advances and
(C) any outstanding Affected Advances shall be converted, on the last day of the
then current Interest Period with respect thereto,
33
to ABR Advances. Until any notice under clauses (i) or (ii), as the case may be,
of this subsection (d) has been withdrawn by the Administrative Agent (by notice
to the Borrower promptly upon either (x) the Administrative Agent having
determined that such circumstances affecting the interbank eurodollar market no
longer exist and that adequate and reasonable means do exist for determining the
Eurodollar Rate pursuant to Section 3.1 or (y) the Administrative Agent having
been notified by such Required Lenders that circumstances no longer render the
Advances (or any portion thereof) Affected Advances), no further Eurodollar
Advances shall be required to be made by the Lenders, nor shall the Borrower
have the right to convert all or any portion of the Loans to or as Eurodollar
Advances.
(E) PAYMENT; CERTIFICATES. Each payment pursuant to subsections (a) or
(b) above shall be made within 10 days after demand therefor, which demand shall
be accompanied by a certificate of the Credit Party demanding such payment
setting forth the calculations of the additional amounts payable pursuant
thereto. Each such certificate shall be conclusive absent manifest error. No
failure by any Credit Party to demand, and no delay in demanding, compensation
for any increased cost shall constitute a waiver of its right to demand such
compensation at any time.
3. 7. TAXES
(A) PAYMENTS FREE OF TAXES. All payments by or on account of the
Borrower under any Loan Document to or for the account of a Credit Party shall
be made free and clear of, and without any deduction or withholding for or on
account of, any and all present or future Indemnified Taxes or Other Taxes,
PROVIDED THAT if the Borrower or any other Person is required by any law, rule,
regulation, order, directive, treaty or guideline to make any deduction or
withholding in respect of such Indemnified Tax or Other Tax from any amount
required to be paid by the Borrower to or on behalf of any Credit Party under
any Loan Document (each, a "REQUIRED PAYMENT"), then (i) the Borrower shall
notify the Administrative Agent and such Credit Party of any such requirement or
any change in any such requirement as soon as the Borrower becomes aware
thereof, (ii) the Borrower shall pay such Indemnified Tax or Other Tax prior to
the date on which penalties attach thereto, such payment to be made (to the
extent that the liability to pay is imposed on the Borrower) for its own account
or (to the extent that the liability to pay is imposed on such Credit Party) on
behalf and in the name of such Credit Party, (iii) the Borrower shall pay to
such Credit Party an additional amount such that such Credit Party shall receive
on the due date therefor an amount equal to the Required Payment had no such
deduction or withholding been made or required, and (iv) the Borrower shall,
within 30 days after paying such Indemnified Tax or Other Tax, deliver to the
Administrative Agent and such Credit Party satisfactory evidence of such payment
to the relevant Governmental Authority.
(B) REIMBURSEMENT FOR TAXES AND OTHER TAXES PAID BY CREDIT PARTY. The
Borrower shall reimburse each Credit Party, within ten days after written demand
therefor, for the full amount of all Indemnified Taxes or Other Taxes paid by
such Credit Party on or with respect to any payment by or on account of any
obligation of the Borrower under the Loan Documents (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section 3.7) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto (other than any such penalties, interest or
expenses that are incurred by such Credit Party's unreasonably taking or
omitting to take action with respect to such Indemnified Taxes or Other Taxes),
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed
34
or asserted by the relevant Governmental Authority. A certificate as to the
amount of such payment or liability delivered to the Borrower by a Credit Party
shall be conclusive absent manifest error. In the event that any Credit Party
determines that it received a refund or credit for Indemnified Taxes or Other
Taxes paid by the BORROWER under this Section 3.7, such Credit Party shall
promptly notify the Borrower of such fact and shall remit to the Borrower the
amount of such refund or credit.
(C) FOREIGN CREDIT PARTIES. Any Foreign Credit Party that is entitled
to an exemption from or reduction of withholding tax under the law of the United
States, or any treaty to which the United States is a party, with respect to
payments under the Loan Documents shall deliver to the Borrower (with a copy to
the Administrative Agent), at the time or times prescribed by applicable law,
such properly completed and executed documentation prescribed by applicable law
(including Internal Revenue Form 4224 or Form 1001) or reasonably requested by
the Borrower as will permit such payments to be made without withholding or at a
reduced rate.
3.8. REGISTER
The Administrative Agent will maintain a register for the recordation
of the names and addresses of the Lenders and the Facility A Commitment and
Facility B Commitment of, and principal amount of the Loans owing to, each
Lender (the "REGISTER"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and each Loan Party and each
Credit Party may treat each party whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
In order to induce the Credit Parties to enter into this Agreement and
to make the Loans, the Borrower makes the following representations and
warranties to the Credit Parties:
4.1. ORGANIZATION AND POWER
Each of the Borrower and each Subsidiary (i) is duly organized or formed,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (ii) has all requisite power and authority to own its progeny and
to carry on its business as now conducted, and (iii) is duly qualified to do
business and is in good standing in each jurisdiction in which the nature of the
business conducted therein or the property owned by it therein makes such
qualification necessary, except where such failure to qualify or be in good
standing, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse effect.
4.2. AUTHORIZATION; ENFORCEABILITY
The Transactions are within the corporate, partnership or other
analogous powers of each of the Borrower and each Subsidiary party thereto and
have been duly authorized by its Managing Person and, if required, by any other
Person including holders of its Capital Stock. Each Loan Document has been
validly executed and delivered by each Loan Party party thereto and constitutes
a legal, valid and binding obligation of each such Loan Party, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights
35
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
4.3. APPROVALS; NO CONFLICTS
The Transactions (i) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority
or any other Person, except (x) such as have been obtained or made and are in
full force and effect, (y) solely in Connection with the initial Loans made on
the Effective Date, the filing of UCC financing statements as contemplated by
Section 5.5, and (z) consents of the FCC in connection with the satisfaction of
the provisions Section 7.11 and 7.12 and in connection with the exercise of
remedies as provided in the Security Agreement, (ii) will not violate any
applicable law, rule or regulation or the Organizational Documents of the
Borrower or any Subsidiary or any order of any Governmental Authority, (iii)
will not violate or result in a default under any indenture, agreement or other
instrument binding upon the Borrower or any Subsidiary or their assets, or give
rise to a right thereunder to require any payment to be made by the Borrower or
any Subsidiary, and (iv) will not result in the creation or imposition of any
Lien on any asset of the Borrower or any Subsidiary other than Permitted Liens.
4.4. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE
(A) The Borrower has heretofore furnished to each Credit Party the
consolidated balance sheet and the related statements of operations,
shareholders' equity and cash flows as of and for the fiscal year ended December
31, 1997, as audited and certified by the Accountants. Such financial statements
present fairly, in all material respects, the financial position and results of
operations and cash flows of the Borrower and consolidated Subsidiaries as of
such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the quarterly
statements referred to above. Except as fully reflected in such financial
statements, there are no material liabilities or obligations with respect to the
Borrower or any Subsidiary of any nature whatsoever (whether absolute,
contingent or otherwise and whether or not due).
(B) Since December 31, 1997, each of the Borrower and each Subsidiary
has conducted its business only in the ordinary course and there has been no
Material Adverse change.
4.5. PROPERTIES
(A) Each of the Borrower and each Subsidiary has and, except with
respect to FCC Licenses which cannot be transferred without the consent of the
applicable Governmental Authority, good and marketable title to, or valid
leasehold interests in, all of its property, real and personal, material to its
business, subject to no Liens, except Permitted Liens and except for minor
defects in title that do not interfere with its ability to conduct its business
as currently conducted or to utilize such properties for their intended
purposes.
(B) Each of the Borrower and each Subsidiary owns or is licensed to
use all Intellectual Property material to its business, and the use thereof by
the Borrower or any Subsidiary does not conflict with or infringe upon the valid
rights of others, except for
36
any such conflicts or infringements that individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse effect.
4. 6. LITIGATION
Except as set forth on Schedule 4.6, there are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority
(whether purportedly on behalf of the Borrower or any Subsidiary) pending or, to
the knowledge of the Borrower, threatened against the Borrower or any
Subsidiary, or maintained by the Borrower or any Subsidiary or which may affect
the property of the Borrower or any Subsidiary, (i) that, in the good faith
opinion of the Borrower, would reasonably be expected to have an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse effect or (ii)
that involve any of the Transactions. Since the Effective Date, there has been
no change in the status of any matter disclosed on Schedule 4.6 that,
individually or in the aggregate, has resulted in, or materially increased the
likelihood of, a Material Adverse effect.
4. 7. ENVIRONMENTAL MATTERS
Except as set forth on Schedule 4.7 and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse effect, neither the Borrower nor any
Subsidiary has (i) received written notice or otherwise learned of any claim,
demand, action, event, condition, report or investigation indicating or
concerning any potential or actual liability which individually or in the
aggregate could reasonably be expected to result in a Material Adverse effect,
arising in connection with any non-compliance with or violation of the
requirements of any applicable laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous Substance (as defined
below) or to health and safety matters (collectively, "ENVIRONMENTAL LAWS"),
(ii) to the best knowledge of the Borrower, any threatened or actual liability
in connection with the release or threatened release of any Hazardous Substance
into the environment which individually or in the aggregate could reasonably be
expected to result in a Material Adverse effect, (iii) received notice of any
federal or state investigation evaluating whether any remedial action is needed
to respond to a release or threatened release of any Hazardous Substance into
the environment for which the Borrower or any of its Subsidiaries is or would be
liable, which liability could reasonably be expected to result in a Material
Adverse effect, or (iv) has received notice that the Borrower or any of its
Subsidiaries is or may be liable to any Person under any Environmental Law,
which liability could reasonably be expected to result in a Material Adverse
effect. Each of the Borrower and each of its Subsidiaries is in compliance with
the financial responsibility requirements of Environmental Laws to the extent
applicable, except in those cases in which the failure so to comply would not
reasonably be expected to result in a Material Adverse effect. For purposes
hereof, "HAZARDOUS SUBSTANCE" shall mean any hazardous or toxic substance,
material, waste or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes, radioactive materials or any
other substance or waste regulated pursuant to any Environmental Law. Since the
Effective Date, there has been no change in the status of any matter disclosed
on Schedule 4.7 that, individually or in the aggregate, has resulted in, or
materially increased the likelihood of, a Material Adverse effect.
37
4.8. COMPLIANCE WITH LAWS AND AGREEMENTS; NO DEFAULT
Each of the Borrower and each Subsidiary is in compliance with all laws,
regulations and orders of any Governmental Authority applicable to it or its
property and all indentures, agreements and other instruments binding upon it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
effect. No Default has occurred and is continuing.
4.9. INVESTMENT COMPANIES AND OTHER REGULATED ENTITIES
None of the Borrower, any Subsidiary nor any Person controlled by,
controlling, or under common control with, the Borrower or any Subsidiary, is
(i) an "INVESTMENT COMPANY" as defined in, or subject to regulation under, the
Investment Company Act of 1940, as amended, (ii) a "HOLDING COMPANY" as defined
in, or subject to regulation under, the Public Utility Holding Company Act of
1935 or the Federal Power Act, as amended, or (iii) subject to any statute or
regulation which prohibits or restricts the incurrence of Indebtedness for
borrowed money, including statutes or regulations relative to common or contract
carriers or to the sale of electricity, gas, steam, water, telephone, telegraph
or other public utility services.
4.10. FEDERAL RESERVE REGULATIONS
Neither the Borrower nor any Subsidiary is engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any Margin Stock. No part of the proceeds of
any Loan will be used, whether directly or indirectly, and whether immediately,
incidentally or ultimately, to purchase or carry Margin Stock or otherwise for
any purpose that entails a violation of, or that is inconsistent with, the
provisions of Regulation U or X.
4.11. ERISA
Each Pension Plan is in compliance with ERISA and the Code, where
applicable, in all material respects and no ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse effect. The present value of all
accumulated benefit obligations under each Pension Plan (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No.
87) did not, as of the date of the most recent financial statements reflecting
such amounts, exceed by more than $500,000 the fair market value of the assets
of such Pension Plan, and the present value of all accumulated benefit
obligations of all underfunded Pension Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of
the date of the most recent financial statements reflecting such amounts, exceed
by more than $500,000 the fair market value of the assets of all such
underfunded Pension Plans.
4.12. TAXES
Each of the Borrower and each Subsidiary has timely filed or caused to
be filed all tax returns and reports required to have been filed and has paid,
or caused to be paid, all Taxes required to have been paid by it except (i)
Taxes being contested in good
38
faith by appropriate proceedings and for which the Borrower or such Subsidiary,
as applicable, has set aside on its books adequate reserves, or (ii) to the
extent that the failure to do so could not reasonably be expected to result in a
Material Adverse effect.
4.13. SUBSIDIARIES
As of the Effective Date, (i) the Borrower has only the Subsidiaries
set forth on, and the authorized, issued and outstanding Capital Stock of the
Borrower and the Subsidiaries is as set forth on, Schedule 4.13 and (ii) the
ownership interests in each Subsidiary of the Borrower are duly authorized,
validly issued, fully paid and nonassessable and are owned beneficially and of
record by the Persons set forth on such Schedule 4.13, free and clear of all
Liens (other than Permitted Liens). Except as set forth on Schedule 4.13,
neither the Borrower nor any of its Subsidiaries has issued any securities
convertible into, or options or warrants for, any common or preferred equity
securities thereof and there are no agreements, voting trusts or understandings
binding upon the Borrower or any Subsidiary with respect to the voting
securities of the Borrower or any Subsidiary or affecting in any manner the
sale, pledge, assignment or other disposition thereof, including any right of
first refusal, option, redemption, call or other right with respect thereto,
whether similar or dissimilar to any of the foregoing.
4.14. ABSENCE OF CERTAIN RESTRICTIONS
No indenture, certificate of designation for preferred stock,
agreement or instrument to which the Borrower or any Subsidiary is a party
(.other than this Agreement), prohibits or limits in any way, directly or
indirectly the ability of any Subsidiary to make Restricted Payments or loans
to, to make any advance on behalf of, or to repay any Indebtedness to, the
Borrower or to another Subsidiary.
4.15. LABOR RELATIONS
As of the Effective Date, there are no material controversies pending
between the Borrower or any Subsidiary and its employees which might result in a
Material Adverse effect.
4.16. INSURANCE
Schedule 4.16 sets forth a description of all insurance maintained by
or on behalf of the Borrower and the Subsidiaries as of the Effective Date. As
of the Effective Date, all premiums in respect of such insurance that are due
and payable have been paid.
4.17. FCC MATTERS
(A) The Borrower and each Subsidiary (i) have duly and timely filed
all filings which are required to be flied by the Borrower and each Subsidiary
under the Communications Act and the rules and regulations of the FCC, the
failure to file of which could reasonably be expected to have a Material Adverse
effect, and (ii) are in all material respects in compliance with the
Communications Act, including, without limitation, the rules and regulations of
the FCC relating to the transmission of radio signals.
(B) Schedule 4.17 correctly and completely sets forth all FCC Licenses
held by the Borrower or any Subsidiary and the applicable expiration dates for
each such FCC license, and the name of the Person holding each such FCC License.
39
(C) Upon compliance with Section 7.11 and 7.12, the License
Subsidiaries will be the registered holders of FCC Licenses duly issued by the
FCC in respect of all Broadcasting Stations owned and operated by the Borrower
and each Subsidiary. Such FCC Licenses constitute all of the authorizations by
the FCC or any other Governmental Authority necessary for the operation of the
broadcasting businesses of the Borrower and each Subsidiary substantially in the
manner presently being conducted by it in all material respects, and such FCC
Licenses are in full force and effect, unimpaired in any material respect by any
act or omission by the Borrower or such Subsidiary. To the best of the
Borrower's knowledge, except as may be set forth in Schedule 4.17, neither the
Borrower nor any Subsidiary is a party to any investigation, notice of
violation, order or complaint issued by or before the FCC. Except as may be set
forth in Schedule 4.17, there are no proceedings by or before the FCC against
the Borrower, any Subsidiary or in respect of any of the FCC Licenses, which
could in any manner materially threaten or adversely affect the validity of any
of such FCC Licenses. Neither the Borrower nor any Subsidiary has knowledge of a
threat of any investigation, notice of violation, order, complaint or proceeding
before the FCC, and has no reason to believe that any of such FCC Licenses will
not be renewed in the ordinary course.
(D) As of the Effective Date, except for FCC Licenses held by ▇▇▇▇▇▇▇
New Mexico and FCC Licenses held by the Borrower with respect to the Austin
Station, all FCC Licenses held by the Borrower or any Subsidiary are held by one
or more License Subsidiaries.
(E) No License Subsidiary is engaged in any business other than (i)
owning, holding and maintaining in full force and effect the FCC Licenses and
other assets transferred to such License Subsidiary and (ii) performing the
obligations of such License Subsidiary under the applicable License Subsidiary
Management Agreement.
4.18. CONCERNING THE ZIONS STOCK
As of the Effective Date, the Borrower owns 1,804,584 shares of Zions
Stock, free and clear of all Liens other than the Liens in favor of the Secured
Parties. Subject to the rights of the Secured Parties, the Zions Stock owned by
the Borrower is not subject to any restriction on its sale, transfer or other
disposition.
4.19. CONCERNING THE TERMINATING BANK DEBT
The Terminating Bank Debt is not "PURPOSE CREDIT" within the meaning
of Regulation U.
4.20. YEAR 2000
All of the material computer software, computer firmware, computer
hardware (whether general or special purpose) and other similar or related items
of automated, computerized and/or software system(s) that are used or relied on
by the Borrower or any Subsidiary in the conduct of its business will not
malfunction, will not cease to function, will not generate incorrect data, and
will not produce incorrect results when processing, providing and/or receiving,
(i) date-related data into and between the twentieth and twenty-first centuries
and (ii) date-related data in Connection with any valid date in the twentieth
and twenty-first centuries.
40
4.21. FINANCIAL CONDITION
On the Effective Date and after giving effect to the Loans made on
such date, neither the Borrower nor any Subsidiary Guarantor is Insolvent.
4.22. CONCERNING ▇▇▇▇▇▇▇ SATELLITE, INC. AND ITS SUBSIDIARIES
Neither ▇▇▇▇▇▇▇ Satellite, Inc. nor any of its Subsidiaries is engaged
in the active conduct of a trade or business.
4.23. NO MISREPRESENTATION
The Borrower has disclosed to each Credit Party all agreements,
instruments and corporate or other restrictions to which it or any Subsidiary is
subject, and all other matters known to it, that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse effect.
No certificate or report from time to time furnished by any of the Loan Parties
in connection with the Transactions contains or will contain a misstatement of
material fact, or omits or will omit to state a material fact required to be
stated in order to make the statements therein contained not misleading in the
light of the circumstances under which made, PROVIDED THAT any projections or
pro-forma financial information contained therein are based upon good faith
estimates and assumptions believed by the Borrower to be reasonable at the time
made, it being recognized by the Credit Parties that such projections as to
future events are not to be viewed as facts, and that actual results during the
period or periods covered thereby may differ from the projected results.
ARTICLE 5. CONDITIONS PRECEDENT TO FIRST LOANS
In addition to the conditions precedent set forth in Article 6, the
obligation of the Credit Parties to make the initial Loans shall not become
effective until each of the following conditions precedent have been satisfied
or shall be contemporaneously satisfied (or waived in accordance with Section
11.1):
5.1. EVIDENCE OF ACTION
The Administrative Agent shall have received a certificate, dated the
Effective Date, of the Secretary or Assistant Secretary or other analogous
counterpart of each Loan Party:
(A) attaching a true and complete copy of the resolutions of its
Managing Person and of all other documents evidencing all necessary corporate,
partnership or other action (in form and substance satisfactory to the
Administrative Agent) taken to authorize the Loan Documents to which it is a
party and the transactions contemplated thereby;
(B) attaching a true and complete copy of its Organizational
Documents;
(C) setting forth the incumbency of its officer or officers (or other
analogous counterpart) who may sign the Loan Documents, including therein a
signature specimen Of such officer or officers (or other analogous counterpart);
and
41
(D) attaching a certificate of good standing of the Secretary of State
of the jurisdiction of its formation and of each other jurisdiction in which it
is qualified to do business, except, in the case of such other jurisdiction,
when the failure to be in good standing in such jurisdiction would not result in
a Material Adverse effect.
5.2. THIS AGREEMENT
The Administrative Agent (or Special Counsel) shall have received, in
respect of each Person listed on the signature pages of this Agreement, either
(i) a counterpart signature page hereof signed on behalf of such Person, or (ii)
written evidence satisfactory to the Administrative Agent (which may include a
facsimile transmission of a signed signature page of this Agreement) that a
counterpart signature page hereof has been signed on behalf of such Person.
5. 3. NOTES
The Administrative Agent shall have received a Note for each Lender,
dated the Effective Date, duly executed by a duly authorized officer of the
Borrower.
5.4. OPINIONS OF COUNSEL TO THE LOAN PARTIES
The Administrative Agent shall have received favorable opinions of (i)
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, counsel to the Loan Parties, and (ii) Dow ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇▇, PLLC, special FCC Counsel to the Loan Parties, each addressed to
the Credit Parties (and permitting Special Counsel to rely thereon), dated the
Effective Date, substantially in the forms of Exhibits E and E-1.
5.5. SECURITY DOCUMENTS, SEARCH REPORTS, ETC.
The Administrative Agent (or Special Counsel) shall have received a
counterpart of the Security Agreement, dated the Effective Date, signed by the
Borrower and each other Loan Party party thereto (or a facsimile of a signature
page thereof signed by the Borrower and each such other Loan Party) together
with the following:
(A) a completed Perfection Certificate, dated the Effective Date and
signed by a Financial Officer of the Borrower, together with all attachments
contemplated thereby, including the results of a search of the Uniform
Commercial Code (or equivalent) filings and the results of tax and judgment lien
searches made with respect to the Borrower and each Subsidiary Guarantor in the
jurisdictions contemplated by the Perfection Certificate and such other
jurisdictions as the Administrative Agent may reasonably request, and copies of
the financing statements (or similar documents) disclosed by such search and
evidence reasonably satisfactory to the Administrative Agent that the Liens
indicated by Such financing statements (or similar documents) are permitted by
Section 8.2 or have been released;
(B) one or more stock certificates, evidencing 100% of the issued and
outstanding Capital Stock of each Subsidiary owned by the Borrower or any
Subsidiary Guarantor (to the extent certificated), together with undated stock
powers with respect thereto, executed in blank by the Borrower or such
Subsidiary Guarantor, as the case may be, in all respects satisfactory to the
Administrative Agent;
42
(C) one or more stock certificates, evidencing not less than 1,804,584
shares of Zions Stock registered in the name of the Borrower, together with an
undated stock power with respect to each such certificate, executed in blank by
the Borrower and bearing a signature guarantee in all respects satisfactory to
the Administrative Agent;
(D) such Uniform Commercial Code Financing Statements, executed by the
appropriate Loan Party, as shall be reasonably requested by the Administrative
Agent; and
(E) such other documents as the Administrative Agent may require in
connection with the creation and perfection of the security interests intended
to be granted under the Security Documents.
5. 6. LICENSE SUBSIDIARY MANAGEMENT AGREEMENTS
Each of KDYL License Subsidiary, KMGR License Subsidiary, KQMB License
Subsidiary, KRSP License Subsidiary, KSFI License Subsidiary, KXRK License
Subsidiary and ▇▇▇▇▇▇▇ St. ▇▇▇▇▇▇ License Subsidiary shall have entered into a
License Subsidiary Management Agreement with its parent and the Administrative
Agent shall have received a copy of each thereof, certified by a Financial
Officer of the Borrower to be a true and complete copy thereof.
5. 7. FINANCIAL OFFICER'S CERTIFICATE
The Administrative Agent shall have received a certificate signed by a
Financial Officer of the Borrower, in all respects reasonably satisfactory to
the Administrative Agent, dated the Effective Date:
(A) certifying that the representations and warranties contained in
the Loan Documents are true and correct and that after giving effect to the
transactions contemplated by the Loan Documents, no Default exists or will
exist,
(B) certifying that all approvals and consents of all Persons required
to be obtained in connection with the consummation of the transactions
contemplated by the Loan Documents have been obtained, all required notices have
been given and all required waiting periods have expired,
(C) certifying that since December 31, 1997, there has been no
Material Adverse change, and
(D) setting forth the Leverage Ratio (including calculations thereof)
after giving effect to the Loans made on the Effective Date.
5.8. FEDERAL RESERVE FORMS
The Administrative Agent shall have received a Federal Reserve Form
for each Lender.
5. 9. TERMINATING BANK DEBT
The Borrower shall have fully repaid all Terminating Bank Debt and all
agreements with respect thereto shall have been cancelled or terminated, all
Liens, if any,
43
securing the same shall have been terminated, and the Administrative Agent shall
have received satisfactory evidence thereof,
5.10. PROPERTY, PUBLIC LIABILITY AND OTHER INSURANCE
The Administrative Agent shall have received a certificate of all
insurance maintained by the Borrower and its Subsidiaries in form and substance
reasonably satisfactory to the Administrative Agent.
5.11. AUDITED 1997 FINANCIAL STATEMENTS
The Administrative Agent shall have received the following, each in
form and substance reasonably satisfactory to it:
(A) a copy of the audited consolidated balance sheet and related
statements of operations, shareholders' equity and cash flows of the Borrower
and its Subsidiaries as of the end of and for its fiscal year ending December
31, 1997, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by the Accountants (without an
Impermissible Qualification) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition and
results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied; and
(B) a copy of its unaudited consolidating balance sheets and related
consolidating statements of operations, shareholders' equity and cash flows of
the Borrower and its Subsidiaries as of the end of and for its fiscal year
ending December 31, 1997, setting forth in each case in comparative form the
figures for the previous fiscal year, together with a certificate of a Financial
Officer to the effect that such consolidating financial statements present
fairly in all material respects the financial condition and results of
operations of the Borrower and its consolidated Subsidiaries on a consolidating
basis in accordance with GAAP consistently applied.
5.12. FEES
The Administrative Agent shall have received all fees and other
amounts due and payable to the Administrative Agent under the Loan Documents on
or prior to the Effective Date, including, to the extent invoiced, reimbursement
or payment of the fees and disbursements of Special Counsel and all other
out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder.
5.13. OTHER DOCUMENTS
The Administrative Agent shall have received such other documents,
each in form and substance reasonably satisfactory to it, as it shall reasonably
request.
ARTICLE 6. CONDITIONS PRECEDENT TO EACH LOAN
The obligation of each Credit Party to make any Loan under this
Agreement shall be subject to the satisfaction of the following conditions
precedent as of the date thereof:
44
6.1. COMPLIANCE
On each Borrowing Date and after giving effect to the Loan thereon (i)
no Default shall have occurred or be continuing; and (ii) the representations
and warranties contained in the Loan Documents (other than representations and
warranties contained in Section 4.4(a)) shall be true and correct with the same
effect as though such representations and warranties had been made on such
Borrowing Date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations and
warranties shall have been true and correct on and as of such earlier date. Each
Loan and each Borrowing Request therefor shall constitute a certification by the
Borrower as of such Borrowing Date that each of the foregoing matters is true
and correct in all respects.
6.2. BORROWING REQUEST
The Administrative Agent shall have received a Borrowing Request,
executed by a duly authorized officer of the Borrower.
6.3. LAW
Such Loan not be prohibited by any applicable law, rule or regulation.
ARTICLE 7. AFFIRMATIVE COVENANTS
The Borrower agrees that, so long as any Facility A Commitment or
Facility B Commitment is in effect and until the principal of, and interest on,
each Loan, all Fees and all other amounts payable under the Loan Documents shall
have been paid in full:
7.1. FINANCIAL STATEMENTS AND INFORMATION
The Borrower shall furnish or cause to be furnished to the
Administrative Agent and each Lender:
(A) within 120 days after the end of each fiscal year a copy of:
(I) the audited consolidated balance sheet and related
statements of operations, shareholders' equity and cash flows as of the end
of and for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by the Accountants
(without (x) a "GOING CONCERN" or like qualification or exception, (y) any
qualification or exception as to the scope of such audit or (z) any
exception or qualification which relates to the treatment or classification
of any item and which, as a condition to the removal of such qualification,
would require an adjustment to such item, the effect of which would be to
cause the Borrower to be in default of any of its Obligations under Section
8.15 (each, an "IMPERMISSIBLE QUALIFICATION")) to the effect that such
consolidated financial statements present fairly in all material respects
the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, it being understood that if the Borrower is obligated
to file an annual report on Form 10-K
45
in respect of such fiscal year with the SEC, the Borrower may satisfy its
obligations under this subsection (a)(i) by furnishing copies of such Form
10-K together with the financial statements required to be attached
thereto, and
(II) the unaudited consolidating balance sheets and related
statements of operations, shareholders' equity and cash flows as of the end
of and for such year, setting forth in each case in comparative form the
figures for the previous fiscal year;
(B) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, a copy of its (A) consolidated and consolidating
balance sheets and the related consolidated and consolidating statements of
income and cash flows as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, setting forth in each case in comparative
form the figures for the corresponding period or periods of (or, in the case of
the balance sheet, as of the end of) the previous fiscal year, and (B) unaudited
financial information for each of the Borrower's business lines, all certified
by one of its Financial Officers as presenting fairly in all material respects
the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated and consolidating basis in
accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes, it being understood that if the
Borrower is obligated to file a quarterly report on Form 10-Q in respect of such
fiscal quarter with the SEC, the Borrower may satisfy its obligations under this
subsection (b) with respect to consolidated statements by furnishing copies of
such Form 10-Q together with the financial statements required to be attached
thereto;
(C) concurrently with any delivery of financial statements under
subsections (a) or (b) above, a certificate (a "COMPLIANCE CERTIFICATE") of a
Financial Officer of the Borrower, substantially in the form of Exhibit D, (i)
certifying as to whether a Default has occurred and, if so, specifying the
details thereof and any action taken or proposed to be taken with respect
thereto, setting forth reasonably detailed calculations demonstrating compliance
with Section 8.15 and (ii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited financial
statements referred to in Section 414 and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying
such Compliance Certificate;
(D) concurrently with any delivery of financial statements under
subsection (a) above, a certificate executed by a Financial Officer of the
Borrower (i) setting forth the information required pursuant to Section 2 of the
Perfection Certificate or confirming that there has been no change in such
information since the date of such certificate or the date of the most recent
certificate delivered pursuant to this subsection (e), (ii) certifying that all
Uniform Commercial Code financing statements or other appropriate filings,
recordings or registrations, including all refilings, rerecordings and
re-registrations, containing a description of the Collateral have been filed of
record in each governmental, municipal or other appropriate office in each
jurisdiction identified pursuant to clause (i) above to the extent necessary to
protect and perfect the security interest of the Administrative Agent for a
period of not less than 18 months after the date of such certificate (except as
noted therein with respect to any continuation statements to be filed within
such period) and (iii) identifying in the format of Schedule 5 thereof, Equity
Interests (as defined in the Security Agreement) of the Borrower and each
Subsidiary Guarantor in existence on the date thereof and not then listed on
such Schedules or previously so identified to the Administrative Agent;
46
(E) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by the
Borrower or any Subsidiary with the FCC, the SEC or with any national securities
exchange, or distributed by the Borrower to its shareholders generally, as the
case may be;
(F) no later than the third Business Day of each month, a certificate
of a Financial Officer of the Borrower certifying as to the Zions Stock Value as
of the last Business Day of the preceding month; and
(G) promptly following any request therefor, such other information
regarding the Borrower or any Subsidiary, or compliance with the terms of this
Agreement, as any Credit Party may reasonably request.
7.2. NOTICE OF MATERIAL EVENTS
The Borrower shall furnish to the Administrative Agent and each
Lender, prompt written notice of the following together with a statement of a
Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and, if applicable,
any action taken or proposed to be taken with respect thereto:
(A) the occurrence of any Default;
(B) the filing or commencement of any action, suit or proceeding by or
before any Governmental Authority against or affecting the Borrower or any
Subsidiary that, if adversely determined, could in the good faith opinion of the
Borrower reasonably be expected to result in a Material Adverse effect;
(C) any lapse, refusal to renew or extend or other termination of any
material license, permit, franchise or other authorization issued to the
Borrower or any Subsidiary by any Person or Governmental Authority, which lapse,
refusal or termination, could reasonably be expected to result in a Material
Adverse effect;
(D) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to result in
a Material Adverse effect;
(E) the Occurrence of any Equity Issuance resulting in Net Cash
Proceeds, any Qualifying Equity Offering and any Permitted Diversifying
Acquisition;
(F) the occurrence of any insured damage to any portion of any
Collateral or the commencement of any action or proceeding for the taking of any
Collateral or any part thereof or interest therein under power of eminent domain
or by condemnation or similar proceeding; or
(G) the occurrence of any other development that has or could
reasonably be expected to result in, a Material Adverse effect.
7.3. EXISTENCE; CONDUCT OF BUSINESS
The Borrower shall, and shall Cause each Subsidiary to, do or Cause to
be done all things necessary to preserve, renew and keep in full force and
effect (i) its legal
47
existence (PROVIDED THAT the foregoing shall not prohibit any merger or
consolidation not prohibited by Section 8.3), and (ii) all rights, licenses,
permits, privileges and franchises the absence of which would reasonably be
expected to have a Material Adverse effect.
7.4. PAYMENT OF OBLIGATIONS
The Borrower shall, and shall cause each Subsidiary to, pay and
discharge when due, its obligations, including obligations with respect to
Taxes, which, if unpaid, could reasonably be expected to result in a Material
Adverse effect, except where (i) the validity or amount thereof is being
contested in good faith by appropriate proceedings diligently conducted, (ii)
the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP and (iii) the failure to make
payment pending such contest could not reasonably be expected to result in a
Material Adverse effect.
7.5. MAINTENANCE OF PROPERTIES
The Borrower shall, and shall cause each Subsidiary to, maintain,
protect and keep in good repair, working order and condition (ordinary wear and
tear excepted) at all times, all of its property other than property, the loss
of which would not reasonably be expected to have a Material Adverse effect.
7.6. INSURANCE
The Borrower shall, and shall cause each Subsidiary to, maintain with
financially sound and reputable insurance companies, insurance in at least such
amounts and against at least such risks (but including in any event public
liability, product liability and business interruption coverage) as are usually
insured against in the same general area by companies engaged in the same or a
similar business and furnish to the Administrative Agent, upon written request,
full information as to the insurance carried.
7.7. BOOKS AND RECORDS: INSPECTION RIGHTS
The Borrower shall, and shall cause each Subsidiary to, keep proper
books of record and account in which full, free and correct entries are made of
all dealings and transactions in relation to its business and activities and, at
all reasonable times upon reasonable prior notice, permit representatives of the
Credit Parties to (i) visit the offices of the Borrower and each Subsidiary,
(ii) examine such books and records and Accountants' reports relating thereto,
(iii) make copies or extracts therefrom, (iv) discuss the affairs of the
Borrower and each such Subsidiary with the respective officers thereof, (v) to
examine and inspect the property of the Borrower and each such Subsidiary and
(vi) meet and discuss the affairs of the Borrower and each such Subsidiary with
the Accountants.
7.8. COMPLIANCE WITH LAWS
The Borrower shall, and shall cause each Subsidiary to, comply with
all laws, rules, regulations and orders of any Governmental Authority applicable
to it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
effect.
48
7.9. ADDITIONAL SUBSIDIARIES
In the event that on or after the Effective Date, any Person shall
become a Subsidiary, the Borrower shall (i) notify the Administrative Agent in
writing thereof within three Business Days thereof, (ii) cause such Person to
execute and deliver to the Administrative Agent a Guarantee Supplement within
five Business Days thereafter, (iii) cause any shares of Capital Stock of such
new Subsidiary owned by or on behalf of any Loan Party to be pledged pursuant to
the Security Agreement within five Business Days thereafter (iv) cause each such
new Subsidiary to deliver to the Administrative Agent any shares of Capital
Stock owned by or on behalf of such new Subsidiary in any other Subsidiary
within five Business Days after such Subsidiary is formed or acquired (v) if
such new Subsidiary has any FCC Licenses, comply with the provisions of Section
7.12, and (vi) deliver to the Administrative Agent a Perfection Certificate with
respect to such Subsidiary, and such certificates, instruments and opinions as
the Administrative Agent may request.
7.10. ADDITIONAL COLLATERAL
If after the Effective Date, the Borrower or any other Loan Party
acquires any property which would constitute Collateral, the Borrower shall, and
shall cause each such Loan Party to, execute any and all documents, and take all
such further actions that may be required under any applicable law, or which the
Administrative Agent or the Required Lenders may reasonably request, to
effectuate the Transactions or to grant, preserve, protect or perfect the Liens
created or intended to be created by the Security Documents or the validity or
priority of any such Lien, all at the expense of the Loan Parties.
7.11. CONCERNING ▇▇▇▇▇▇▇ NEW MEXICO
(A) Not later than June 1, 1998, the Borrower shall deliver to the
Administrative Agent such favorable opinions Of counsel to ▇▇▇▇▇▇▇ New Mexico,
including an opinion of New Mexico counsel, in form and substance satisfactory
to the Administrative Agent, in each case addressed to the Credit Parties (and
permitting Special Counsel to rely thereon), as to, among other things, the due
authorization, execution and delivery of the Loan Documents to which ▇▇▇▇▇▇▇ New
Mexico is a party.
(B) Not later than July 31, 1998, ▇▇▇▇▇▇▇ New Mexico shall have
created a License Subsidiary (which shall be a Wholly Owned Subsidiary thereof)
and, in connection with therewith, shall have complied with the provisions of
Section 7.12(b)(ii) through (v).
7.12. ADDITIONAL FCC LICENSES
(A) Upon the receipt by the Borrower or any Subsidiary of any
additional FCC License, subject to the prior approval of the FCC which the
Borrower agrees to use its best efforts to promptly obtain, the Borrower or such
Subsidiary shall contribute such FCC License either (i) to one of its existing
License Subsidiaries and cause the applicable License Subsidiary Management
Agreement to be amended or otherwise modified with respect thereto, or (ii) a
newly created License Subsidiary and deliver to the Administrative Agent a
certificate of an officer of the Borrower in all respects satisfactory to the
Administrative Agent and dated the date of such transfer attaching a true,
complete and
49
correct copy of each order from the FCC, and all other similar orders from all
other applicable Governmental Authorities and other Persons, if any, with regard
to the transfer of the FCC licenses to such License Subsidiary. In the event
that such FCC License is transferred to a newly created License Subsidiary
pursuant to clause (ii) above, the requirements of clauses (ii) through (viii)
of subsection (b) below shall also be satisfied.
(B) Upon the Acquisition of a Subsidiary (to the extent permitted by
Section 8.5) holding an FCC License or the creation of a new License Subsidiary
pursuant to subsection (a) above or Section 7.11, the Borrower shall:
(I) create a new License Subsidiary with respect thereto;
(II) cause such License Subsidiary to execute and deliver a
License Subsidiary Management Agreement and deliver a copy thereof to the
Administrative Agent;
(III) subject to the prior approval of the FCC which such
Borrower agrees to use its best efforts to promptly obtain, transfer the
FCC License to such License Subsidiary and provide the Administrative Agent
with evidence thereof, including, without limitation, copies of FCC and
related approvals;
(IV) cause certificates evidencing all of the issued and
outstanding shares of Capital Stock of such License Subsidiary to be
delivered to the Administrative Agent as additional Collateral, together
with an undated stock power with respect thereto, executed in blank by the
Borrower or the Subsidiary Guarantor, as the case may be; and
(V) deliver to the Administrative Agent such other documents as
may be requested by the Administrative Agent, including documents relating
to the pledge of the Capital Stock of such License Subsidiary, certificates
and legal opinions.
7.13. MAINTENANCE OF FCC LICENSES
The Borrower shall maintain, and cause each Subsidiary to maintain, in
full force and effect, the operating license issued by the FCC to it for each
Broadcasting Station. The Borrower shall also maintain and cause each Subsidiary
to maintain, in full force and effect, all other material licenses, copyrights,
patents, including all licenses, permits, applications, reports, authorizations
and other rights as are necessary for the conduct of its business, except to the
extent that such ownership or right to use shall terminate as a matter of law or
expire as a matter of contractual right through no action or default by the
Borrower or any Subsidiary.
ARTICLE 8. NEGATIVE COVENANTS
The Borrower agrees that, so long as any Facility A Commitment or
Facility B Commitment is in effect and until the principal of, and interest on,
each Loan, all Fees and all other amounts payable under the Loan Documents shall
have been paid in full:
50
8.1. INDEBTEDNESS
The Borrower shall not, and shall not permit any Subsidiary or ▇▇▇▇▇▇▇
Lone Star to, create, incur, assume or suffer to exist any liability for
Indebtedness, except:
(A) Indebtedness due under the Loan Documents and, in the case of
▇▇▇▇▇▇▇ Lone Star, Indebtedness due under the ▇▇▇▇▇▇▇ Lone Star Note;
(B) Indebtedness of the Borrower or any Subsidiary existing on the
Effective Date as set forth on Schedule 8.1 (other than the Terminating Bank
Debt which is to be repaid on the Effective Date), but not any extensions,
renewals and replacements of any such Indebtedness;
(C) Indebtedness of the Borrower to any Subsidiary Guarantor or of any
Subsidiary Guarantor to the Borrower or any other Subsidiary Guarantor;
(D) unsecured Indebtedness of the Borrower to a seller incurred in
connection with an Acquisition permitted pursuant to Section 8.5, PROVIDED THAT
(i) immediately before and after giving effect thereto, no Default shall or
would exist, (ii)immediately after giving effect thereto, all of the
representations and warranties contained in the Loan Documents shall be true and
correct with the same effect as though then made, (iii) the aggregate amount of
all such Indebtedness does not exceed $5,000,000, and (iv) such Indebtedness is
subordinated to the Indebtedness under the Loan Documents in form and substance
satisfactory to the Administrative Agent; and
(E) other Indebtedness of the Borrower or any of its Subsidiaries
(other than ▇▇▇▇▇▇▇ Lone Star or any License Subsidiary) in an aggregate
outstanding principal amount not to exceed $500,000.
8.2. NEGATIVE PLEDGE
The Borrower shall not, and shall not permit any Subsidiary or ▇▇▇▇▇▇▇
Lone Star to, create, incur, assume or suffer to exist any Lien upon any of its
property, whether now owned or hereafter acquired, or assign or sell any income
or revenues (including accounts receivable) or rights in respect of any thereof,
except for the following (collectively, "PERMITTED LIENS"):
(A) any Customary Lien;
(B) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the Effective Date and set forth on Schedule 8.2,
PROVIDED THAT (i) such Lien shall not apply to any other property or asset of
the Borrower or any Subsidiary and (ii) such Lien shall secure only those
obligations that it secures on the Effective Date;
(C) Liens securing Capital Lease Obligations and Liens on property of
the Borrower or any Subsidiary (other than ▇▇▇▇▇▇▇ Lone Star and any License
Subsidiary) (including, in the event such property constitutes Capital Stock of
a newly acquired Subsidiary (other than ▇▇▇▇▇▇▇ Lone Star or any License
Subsidiary), Liens on the property of such Subsidiary) acquired after the
Effective Date and either existing on such property when acquired, or created
contemporaneously with such acquisition, to secure the payment or financing of
the purchase price thereof, PROVIDED THAT such Liens attach only to
51
the property so purchased or acquired and, PROVIDED FURTHER, that the
Indebtedness secured by such Liens is permitted by Section 8.1(e); and
(D) in the case of ▇▇▇▇▇▇▇ Lone Star, Liens under the ▇▇▇▇▇▇▇ Lone
Star Security Agreement.
8.3. FUNDAMENTAL CHANGES
The Borrower shall not, and shall not permit any Subsidiary, to
consolidate or merge into or with any other Person, or permit any other Person
to merge into or consolidate with it or any of the Subsidiaries, or sell,
transfer, lease or otherwise, dispose of (in one transaction or in a series of
transactions) all or substantially all of its assets, or all or substantially
all of any class of the Capital Stock of any of the Subsidiaries (in each case,
whether now owned or hereafter acquired), or liquidate or dissolve, or permit
any Subsidiaries to do any of the foregoing, except that, so long as immediately
before and after giving effect thereto, no Default shall or would exist:
(A) the Borrower may merge with any Subsidiary Guarantor and any
Subsidiary Guarantor may merge with the Borrower or any other Subsidiary
Guarantor, PROVIDED THAT in connection with any merger involving the Borrower,
the Borrower shall be the survivor thereof;
(B) the Borrower and the Subsidiaries (other than a License
Subsidiary) may consummate any sale, assignment, lease, transfer or other
disposition permitted by Section 8.6, and
(C) provided that (i) immediately before and after giving effect
thereto, no Default shall or would exist, and (ii) immediately after giving
effect thereto, all of the representations and warranties contained in the Loan
Documents shall be true and correct with the same effect as though then made,
▇▇▇▇▇▇▇ Satellite, Inc. and its Subsidiaries may be dissolved.
8.4. INVESTMENTS, LOANS, ADVANCES AND GUARANTEES
The Borrower shall not, and shall not permit any Subsidiary to, at any
time, purchase or otherwise acquire (including pursuant to any merger with any
Person that was not a Wholly Owned Subsidiary of the Borrower prior to such
merger), hold or invest in any Capital Stock, evidences of indebtedness or other
securities (including any option, warrant or other right to acquire any of the
foregoing and any derivative product) of, make or permit to exist any loans to
or advances on behalf of, incur any Guarantees in respect of any obligations of,
or make or permit to exist any investment or any other interest in, any other
Person (all of which are sometimes referred to herein as "INVESTMENTS"), except:
(A) Investments in Cash Equivalents;
(B) Investments existing on the Effective Date as set forth on
Schedule 8.4;
(C) Investments by the Borrower in the Capital Stock of or debt issued
by any Subsidiary Guarantor and investments by any Subsidiary in the Capital
Stock of or debt issued by the Borrower or any Subsidiary Guarantor, PROVIDED
THAT the proceeds of
52
such investment in a Borrower or a Subsidiary Guarantor shall be received by the
Borrower or such Subsidiary Guarantor;
(D) Unconsolidated Investments made on or after the Effective Date,
(other than Investments in ▇▇▇▇▇▇▇ Lone Star) PROVIDED THAT, (i) immediately
before and after giving effect thereto, no Default shall or would exist, (ii)
immediately after giving effect thereto, all of the representations and
warranties contained in the Loan Documents shall be true and correct with the
same effect as though then made, and (iii) the aggregate amount of all such
Unconsolidated Investments does not exceed $10,000,000, it being understood that
Investments in ▇▇▇▇▇▇▇ Satellite, Inc. or any of its Subsidiaries shall not be
permitted hereunder;
(E) Investments by the Borrower in ▇▇▇▇▇▇▇ Lone Star made on or after
the date of this Agreement and prior to the end of the second fiscal-quarter of
the 1999 fiscal year to fund operating losses of ▇▇▇▇▇▇▇ Lone Star
(collectively, "▇▇▇▇▇▇▇ LONE STAR INVESTMENTS"), PROVIDED, HOWEVER:
(I) immediately before and after giving effect thereto, no
Default shall or would exist,
(II) each such ▇▇▇▇▇▇▇ Lone Star investment shall be made as a
loan which, together with the proceeds of sale of the Austin Station in
accordance with Section 8.6(b), shall be evidenced by a promissory note of
▇▇▇▇▇▇▇ Lone Star (the "▇▇▇▇▇▇▇ LONE STAR NOTE"), in form and substance
satisfactory to the Administrative Agent, which note shall be due and
payable on demand but if demand shall not have been previously made, on the
earlier of the sale, assignment, lease, transfer or other disposition of
(x) all or substantially all of the assets of ▇▇▇▇▇▇▇ Lone Star, (y) the
FCC Licenses applicable to the Austin Station and (z) any partnership
interest in ▇▇▇▇▇▇▇ Lone Star by the Borrower or any limited partner
thereof (other than, in the case of a limited partner, a transfer to such
limited partner's immediate family members, heirs or beneficiaries, AND any
trusts established for the benefit of any of the foregoing),
(III) the Administrative Agent shall have received at least 5
Business Days' prior written notice thereof,
(IV) the Administrative Agent shall have received (A) the ▇▇▇▇▇▇▇
Lone Star Note indorsed in blank as additional Collateral under the
Security Agreement, (B) an executed copy of a security agreement made by
▇▇▇▇▇▇▇ Lone Star to the Borrower and assigned by the Borrower to the
Administrative Agent (the "▇▇▇▇▇▇▇ LONE STAR SECURITY AGREEMENT"), in form
and substance satisfactory to the Administrative Agent, (C) such UCC, tax
and judgment lien searches against ▇▇▇▇▇▇▇ Lone Star as the Administrative
Agent shall request, (D) such UCC-1 financing statements duly executed by
▇▇▇▇▇▇▇ Lone Star, as debtor and the Borrower as Secured Party, as the
Administrative Agent shall request, and (E) such other documents (including
opinions of counsel) as the Administrative Agent shall request;
(V) the aggregate amount of ▇▇▇▇▇▇▇ Lone Star Investments made
during the (A) 1998 fiscal year Shall not exceed $500,000, (B) the first
and second quarters of the 1999 fiscal year shall not exceed $100,000 and
(C) thereafter shall not exceed $0.
53
(F) Acquisitions permitted by Section 8.5; and
(G) Guarantees permitted by Section 8.1 and Hedging Agreements
permitted by Section 8.8.
8.5. ACQUISITIONS
The Borrower shall not, and shall not permit any Subsidiary to, at any
time, make any purchase or other acquisition (including by way of a dividend
received or otherwise and whether in a single transaction or in a series of
related transactions) of (i) any assets of any other Person that, taken
together, constitute a business unit, (ii) any Capital Stock of any other Person
if, immediately thereafter, such other Person would be a Subsidiary of the
Borrower (iii) any assets of any other Person otherwise not in the ordinary
course of business, (iv) the Capital Stock owned by the minority shareholders in
▇▇▇▇▇▇▇ New Mexico (whether pursuant to the ▇▇▇▇▇▇▇ New Mexico Shareholders'
Agreement or otherwise), (v) enter into any binding agreement to perform any
transaction described in clauses (i), (ii), (iii) or (iv) above which is not
contingent on obtaining the consent of the Required Lenders (each transaction
described in clauses (i), (ii), (iii), (iv) and (v) above being referred to as
an "ACQUISITION"), or (vi) make any deposit in connection with any potential
Acquisition, except:
(A) Acquisitions of Investments permitted by Section 8.4;
(B) Acquisitions by the Borrower or any Subsidiary Guarantor, PROVIDED
THAT, with respect to any Acquisition, the sum (the "ACQUISITION CONSIDERATION
") of (i) the cash consideration paid or agreed to be paid in connection
therewith, PLUS (ii) the fair market value of all non-cash consideration paid or
agreed to be paid in connection therewith, PLUS (iii) an amount equal to the
principal or stated amount of all liabilities assumed or incurred in connection
therewith PLUS (iv) Capital Expenditures anticipated to be incurred for the 12
month period following such Acquisition shall not exceed $10,000,000, PROVIDED
FURTHER THAT:
(A) immediately before or after giving effect to each such
Acquisition, no Default shall or would exist, and immediately after giving
effect thereto, all of the representations and warranties contained in the
Loan Documents shall be true and correct with the same effect as though
then made,
(B) the Borrower or Subsidiary Guarantor making the Acquisition
shall have complied with the provisions of Sections 7.9, 7.10 and 7.12,
(C) the Person or business acquired is engaged in the Line of
Business, and
(D) the Borrower shall have delivered to the Administrative Agent
and each Credit Party (1) notice thereof not less than ten days prior to
the consummation of such Acquisition, and (2) a certificate of a Financial
Officer thereof, in all respects reasonably satisfactory to the
Administrative Agent and dated the date of such consummation, certifying
that no Default has occurred and is continuing, and setting forth
reasonably detailed calculations demonstrating compliance with Section 8.15
on a pro-forma basis (after giving effect to such Acquisition and based on
the most recent financial statements delivered pursuant to
54
Section 7.1) and such other information, documents and other items as
the Administrative Agent or such Credit Party shall have reasonably
requested; and
(C) deposits in connection with potential Acquisitions, provided that
(i) such Acquisition would otherwise be permitted under this Section 8.5, but
for the fulfillment by the Borrower of the conditions set forth in Section
8.5(b), (ii) no Default shall or would exist immediately before or after giving
effect thereto, (iii) immediately after giving effect to each deposit, the
aggregate amount of all outstanding deposits under this Section 8.5(c) does not
exceed $1,000,000, and (iv) each such deposit (together with earnings thereon)
is to be applied in full to the purchase price of the related Acquisition if
such Acquisition is consummated, and (v) such deposit is invested in Cash
Equivalents pending such application.
8. 6. DISPOSITIONS
The Borrower shall not, and shall not permit any Subsidiary or ▇▇▇▇▇▇▇ Lone
Star to, sell, assign, lease, transfer or otherwise dispose of any property or
assets, except:
(A) (i) sales of inventory in the ordinary course of business (which
shall not include the sale or other disposition Of any property of a License
Subsidiary or all or substantially all of the Capital Stock or assets of any
Broadcasting Station (including the Austin Station) or involve an FCC License of
the Borrower, any Subsidiary or ▇▇▇▇▇▇▇ Lone Star) and sales of Unconsolidated
Investments (other than any Capital Stock in ▇▇▇▇▇▇▇ Lone Star), (ii) sales,
assignments, transfers or other dispositions of any property or assets that, in
the reasonable opinion of the Borrower or such Subsidiary, as the case may be,
are obsolete or no longer useful in the conduct of its business, and (iii) Cash
Equivalents;
(B) the sale by the Borrower of the Austin Station to ▇▇▇▇▇▇▇ Lone
Star, PROVIDED THAT (i) the sales price therefor shall not he less than the fair
market value thereof, (ii) if the ▇▇▇▇▇▇▇ Lone Star Note and the ▇▇▇▇▇▇▇ Lone
Star Security Agreement shall not have been executed and delivered, the
provisions of Section 8.4(e) shall be satisfied, (iii) if the ▇▇▇▇▇▇▇ Lone Star
Note and the ▇▇▇▇▇▇▇ Lone Star Security Agreement shall have been executed and
delivered, sales price shall be added to the principal amount thereof, and (iv)
the Administrative Agent shall have received at least 5 Business Days' prior
written notice thereof;
(C) sales, assignments, leases, transfers or other dispositions by the
Borrower, any Subsidiary or ▇▇▇▇▇▇▇ Lone Star not otherwise described in this
Section 8.6 (which shall not include the sale, assignment, lease, transfer or
other disposition of (x) shares of Zions Stock held as Collateral or (y) any
property of a License Subsidiary or (z) all or substantially all of the Capital
Stock of any Subsidiary or assets of any Broadcasting Station or involve an FCC
License of the Borrower or any Subsidiary, but which shall include the sale,
assignment, lease, transfer or other disposition of all or substantially all of
the Capital Stock of ▇▇▇▇▇▇▇ Lone Star (other than, in the case of a limited
partner of ▇▇▇▇▇▇▇ Lone Star, a sale, assignment, lease, transfer or other
disposition to such limited partner's immediate family members, heirs or
beneficiaries, and any trusts established for the benefit of any of the
foregoing), or the sale, assignment, lease, transfer or other disposition of all
or substantially all of the assets of the Austin Station or involve an FCC
License of ▇▇▇▇▇▇▇ Lone Star, each such non-excluded sale, assignment, lease,
transfer or
55
other disposition being referred to herein as a "DISPOSITION"), PROVIDED THAT
(i) immediately before and after giving effect to each such Disposition, no
Default shall or would exist, (ii) except in the case of a Disposition by
▇▇▇▇▇▇▇ Lone Star (or its partners) as set forth above, 75% of the total
consideration received or to be received therefor by the Borrower or any
Subsidiary shall be payable in cash or Cash Equivalents on or before the closing
thereof and shall not be less than the fair market value thereof as reasonably
determined by the Managing Person of the Borrower or such Subsidiary, as the
case may be, and (iii) the Administrative Agent and the Lenders shall have
received (A) written notice thereof not less than ten Business Days prior to
each such Disposition, and (B) a certificate in respect thereof signed by a duly
authorized officer of the Borrower identifying the property or other asset
subject to such Disposition, and certifying that the consideration received or
to be received by the Borrower, such Subsidiary or ▇▇▇▇▇▇▇ Lone Star, as the
case may be, for such property has been determined by the Managing Person
thereof to be not less than the fair market value of such property and
certifying as to the total consideration to be paid in respect of such
Disposition, together with estimates of items to be deducted therefrom in
arriving at the Net Cash Proceeds thereof.
8.7. RESTRICTED PAYMENTS
The Borrower shall not, and shall not permit any Subsidiary to,
declare, pay or make any dividend or other distribution, direct or indirect, on
account of any Capital Stock issued by such Person now or hereafter outstanding
(other than a dividend payable solely in shares or other units of such Capital
Stock to the holders of such shares or other units) or any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition,
direct or indirect, of any shares of any class of its Capital Stock now or
hereafter outstanding (collectively, "RESTRICTED PAYMENTS"), except:
(A) Restricted Payments made by any Subsidiary (other than a License
Subsidiary) to the Borrower or any Subsidiary Guarantor;
(B) dividends paid by the Borrower, PROVIDED THAT (i) immediately
before and after giving effect thereto no Default shall or would exist, (ii) the
maximum amount of dividends which may be paid in any fiscal year shall not
exceed an amount equal to $1,000,000 minus the amount of Restricted Payments
made during such fiscal year by ▇▇▇▇▇▇▇ New Mexico pursuant to Section 8.7(d),
(iii) no dividends may be paid pursuant to this subsection (b) in respect of
either the fiscal year ended December 31, 2001 or the fiscal year ended December
31, 2002, if on March 31st of the immediately succeeding fiscal year, the
Leverage Ratio is greater than 3.00:1.00, and (iv) an amount equal to any
dividends paid under this subsection (b) shall be applied to the prepayment of
the Facility B Loans and the permanent reduction of the Facility B Commitment
pursuant to Section 2.4(b)(iii);
(C) PROVIDED THAT immediately before and after giving effect thereto
no Default shall or would exist the Borrower may repurchase shares of its
preferred stock (i) at any time after the Effective Date for an aggregate amount
not in excess of $440,000, and (ii) immediately prior to, or contemporaneously
with, the consummation of an initial public offering by the Borrower, for an
aggregate amount not in excess of $880,000; and
(D) PROVIDED THAT immediately before and after giving effect thereto
no Default Shall or would exist, ▇▇▇▇▇▇▇ New Mexico may declare and pay
dividends on shares of its (i) preferred stock in any fiscal quarter in an
amount not in excess of $35,000
56
and (ii) common stock in any fiscal quarter in an amount not in excess of 20% of
▇▇▇▇▇▇▇ New Mexico Cash Flow for such fiscal quarter.
8. 8. HEDGING AGREEMENTS
The Borrower shall not, and shall not permit any Subsidiary to, enter
into any Hedging Agreements, other than Hedging Agreements entered into in the
ordinary course of business to hedge or mitigate risks to which the Borrower or
any Subsidiary is exposed in the conduct of its business or the management of
its liabilities.
8.9. SALE AND LEASE-BACK TRANSACTIONS
The Borrower shall not, and shall not permit any Subsidiary to, enter
into an arrangement with any Person or group of Persons providing for the
renting or leasing by the Borrower or any Subsidiary of any property or asset
which has been or is to be sold or transferred by the Borrower or any Subsidiary
to any such Person.
8.10. LINES OF BUSINESS; LICENSE SUBSIDIARIES
(A) The Borrower shall not, and shall not permit any Subsidiary to,
engage in any business other than the Line of Business.
(B) Neither the Borrower nor any Subsidiary shall permit any License
Subsidiary to engage in any business other than (i) owning, holding and
maintaining in full force and effect the FCC Licenses and other assets
transferred to such License Subsidiary and (ii) performing the obligations of
such License Subsidiary under the applicable License Subsidiary Management
Agreement.
8.11. TRANSACTIONS WITH AFFILIATES
The Borrower shall not, and shall not permit any Subsidiary to, become
a party to any transaction with an Affiliate, unless the Borrower's or such
Subsidiary's Managing Person shall have determined that the terms and conditions
relating thereto are as favorable to the Borrower or such Subsidiary as those
which would be obtainable at the time in a comparable arms-length transaction
with a Person other than an Affiliate.
8.12. AMENDMENTS, ETC. OF CERTAIN AGREEMENTS
The Borrower shall not, and shall not permit any Subsidiary to, enter
into or agree to any amendment, modification or waiver of any term or condition
of its Organizational Documents, the ▇▇▇▇▇▇▇ New Mexico Shareholders' Agreement
or any of the License Subsidiary Management Agreements in any way which could
reasonably be expected to have a Material Adverse effect.
8.13. USE OF PROCEEDS
(A) FACILITY A LOANS. The Borrower shall not use the proceeds of
Facility A Loans for any purpose other than (i) to repay the Terminating Bank
Debt, (ii) to pay the reasonable out-of-pocket fees and expenses incurred by the
Borrower in connection with the Transactions, (iii) to Pay the Fees, (iv) to
make Capital Expenditures, (v) to repay Facility B Loans and (vi) for the
Borrower's working capital and general corporate
57
purposes not inconsistent with the provisions hereof, and (vii) to make
Restricted Payments and Investments permitted by this Agreement.
(B) FACILITY B LOANS. The Borrower shall not use the proceeds of
Facility B Loans for any purpose other than (i) to repay the Terminating Bank
Debt, (ii) to pay the reasonable out-of-pocket fees and expenses incurred by the
BORROWER in connection with the Transactions, (iii) to pay the Fees, (iv) to
make Capital Expenditures, and (v) for the Borrower's working Capital and
general corporate purposes not inconsistent with the provisions hereof, (vi) to
repay Facility A Loans and (vii) to make Restricted Payments and Acquisitions
permitted by this Agreement.
(C) IN GENERAL. No part of the proceeds of any Loan will be used,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, to purchase or carry Margin Stock (within the meaning of Regulation
U) or for any purpose that entails a violation of, or that is inconsistent with,
the provisions of Regulation U or X.
8.14. RESTRICTIVE AGREEMENTS
The Borrower shall not, and shall not permit any Subsidiary to,
directly or indirectly, enter into, incur or permit to exist any agreement or
other arrangement that prohibits, restricts or imposes any condition upon (i)
the ability of the Borrower or any such Subsidiary to create, incur or permit to
exist any Lien upon any of its property or assets, or (ii) the ability of any
such Subsidiary to pay dividends or other distributions with respect to any
shares of its Capital Stock or to make or repay loans or advances to the
Borrower or any other Subsidiary of the Borrower or to Guarantee Indebtedness of
the Borrower or any other Subsidiary of the Borrower, PROVIDED THAT the
foregoing shall not apply to (A) restrictions and conditions imposed by
applicable law or by this Agreement or (B) restrictions and conditions existing
on the Effective Date identified on Schedule 8.14.
8.15. FINANCIAL COVENANTS
(A) TOTAL LEVERAGE RATIO.
(I) Prior to the completion by the Borrower of a Qualified
Equity Offering and a Permitted Diversifying Acquisition, the Borrower
shall not permit the Leverage Ratio at any time during the periods set
forth below to exceed the ratio set forth below with respect to the
applicable period set forth below:
PERIOD RATIO
------- -------
Effective Date through
December 30, 1998 5.00:1.00
December 31, 1998 through
December 30, 1999 4.50:1.00
December 31, 1999 through
December 30, 2000 4.00:1.00
58
December 31, 2000 through
December 30, 2001 3.50:1.00
December 31, 2001 and
thereafter 3.00:1.00;
(II) On and after the completion by the Borrower of a
Qualified Equity Offering and a Permitted Diversifying Acquisition,
the Borrower shall not permit the Leverage Ratio at any time during
the periods set forth below to exceed the ratio set forth below with
respect to the applicable period set forth below:
PERIOD RATIO
------- ------
Effective Date through
December 30, 1998 6.00:1.00
December 31, 1998 through
December 30, 1999 5.50:1.00
December 31, 1999 through
December 30, 2000 5.00:1.00
December 31, 2000 through
December 30, 2001 4.50:1.00
December 31, 2001 and
thereafter 4.00:1.00.
(B) INTEREST COVERAGE RATIO. The Borrower shall not permit the
Interest Coverage Ratio, as of the last day of any fiscal quarter during the
periods set forth below, to be less the ratios set forth below with respect to
the applicable period:
Effective Date through
December 30, 1998 1.75:1.00
December 31, 1998 and
thereafter 2.50:1.00.
(C) FIXED CHARGES RATIO. The Borrower shall not permit the Fixed
Charge Coverage Ratio as of the last day of any fiscal quarter to be less than
1.10:1.00.
8.16. PREPAYMENTS OF INDEBTEDNESS
The Borrower shall not, and shall not permit any Subsidiary, to prepay
or obligate itself to prepay, in whole or in part, any Indebtedness (other than
Indebtedness under the Loan Documents).
8.17. CONCERNING ▇▇▇▇▇▇▇ SATELLITE, INC. AND ITS SUBSIDIARIES
The Borrower shall not permit ▇▇▇▇▇▇▇ Satellite, Inc. or any of its
Subsidiaries to be engaged in the active conduct of a trade or business.
59
ARTICLE 9. DEFAULTS
9.1. EVENTS OF DEFAULT
The following shall each constitute an "EVENT OF DEFAULT" hereunder:
(A) the failure of the Borrower to make any payment of principal on
any Loan when due and payable; or
(B) the failure of the Borrower to make any payment of interest, Fees,
expenses or other amounts payable under any Loan Document or otherwise to the
Administrative Agent with respect to the loan facilities established hereunder
within three Business Days of the date when due and payable; or
(C) the failure of the Borrower to observe or perform any covenant or
agreement contained in Section 7.3(i), 7.9, 7.10, 7.11, 7.12 or Article 8; or
(D) the failure of any Loan Party to observe or perform any other
term, covenant, or agreement contained in any Loan Document to which it is a
party and such failure shall have continued unremedied for a period of 30 days
after such Loan Party shall have obtained knowledge thereof; or
(E) any representation or warranty made by any Loan Party (or by an
officer thereof on its behalf) in any Loan Document or in any certificate,
report, opinion (other than an opinion of counsel) or other document delivered
or to be delivered pursuant thereto, shall prove to have been incorrect or
misleading (whether because of misstatement or omission) in any material respect
when made; or
(F) the failure of any Loan Party to make any payment (whether of
principal or interest and regardless of amount) in respect of Material
Liabilities when due or within any grace period for the payment thereof; or
(G) any event or condition occurs that results in any Material
Liability becoming or being declared to be due and payable prior to the
scheduled maturity thereof, or that enables or permits (with or without the
giving of notice, the lapse of time or both) the holder or holders of any
Material Liability or any trustee or agent on its or their behalf to cause any
Material Liability to be due and payable, or to require the prepayment,
repurchase, redemption or defeasance thereof, in each case prior to the
scheduled maturity thereof (in each case after giving effect to any applicable
grace period); or
(H) any Loan Party or ▇▇▇▇▇▇▇ Lone Star shall (i) suspend or
discontinue its business (except to the extent permitted by Section 7,3), (ii)
make an assignment for the benefit of creditors, (iii) generally not be paying
its debts as such debts become due, (iv) admit in writing its inability to pay
its debts as they become due, (v) file a voluntary petition in bankruptcy, (vi)
become insolvent (however such insolvency shall be evidenced), (vii) file any
petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment of debt, liquidation or dissolution or similar relief
under any present or future statute, law or regulation of any jurisdiction,
(viii) petition or apply to any tribunal for any
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receiver, custodian or any trustee for any substantial part of its property,
(ix) be the subject of any such proceeding filed against it which remains
undismissed for a period of 45 days, (x) file any answer admitting or not
contesting the material allegations of any such petition filed against it or any
order, judgment or decree approving such petition in any such proceeding, (xi)
seek; approve, consent to, or acquiesce in any such proceeding, or in the
appointment of any trustee, receiver, sequestrator, custodian, liquidator, or
fiscal agent for it, or any substantial part of its property, or an order is
entered appointing any such trustee, receiver, custodian, liquidator or fiscal
agent and such order remains in effect for 45 days, or (xii) take any formal
action for the purpose of effecting any of the foregoing or looking to the
liquidation or dissolution of any Loan Party or ▇▇▇▇▇▇▇ Lone Star; or
(I) an (i) order or decree is entered by a court having jurisdiction
(A) adjudging any Loan Party or ▇▇▇▇▇▇▇ Lone Star bankrupt or insolvent, (B)
approving as properly filed a petition seeking reorganization, liquidation,
arrangement, adjustment or composition of or in respect of any Loan Party or
▇▇▇▇▇▇▇ Lone Star under the bankruptcy or insolvency laws of any jurisdiction,
(C) appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of any Loan Party or ▇▇▇▇▇▇▇ Lone Star
or of any substantial part of the property of any thereof, or (D) ordering the
winding up or liquidation of the affairs of any Loan Party or ▇▇▇▇▇▇▇ Lone Star,
and any such decree or order continues unstayed and in effect for a period of 45
days or (ii) order for relief is entered under the bankruptcy or insolvency laws
of any jurisdiction or any other; or
(J) judgments or decrees against the Borrower or any Subsidiary
aggregating in excess of $1,000,000 (unless adequately insured by a solvent
unaffiliated insurance company which has acknowledged coverage) shall remain
unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period
of 30 days; or
(K) any Loan Document shall cease, for any reason, to be in full force
and effect (other than in accordance with its terms), or any Loan Party shall so
assert in writing or shall disavow any of its obligations thereunder; or
(L) any Lien purported to be created under any Security Document shall
cease to be, or shall be asserted by any Loan Party not to be, a valid and
perfected Lien on, and security interest in, any Collateral, with the priority
required by the applicable Security Document, except as a result of a
Disposition thereof to the extent permitted under the Loan Documents; or
(M) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders; when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of the Borrower
and the Subsidiaries which would, individually or in the aggregate, have a
Material Adverse effect; or
(N) the failure of ▇▇▇▇▇▇▇ Lone Star to pay (i) principal of the
▇▇▇▇▇▇▇ Lone Star Note when due (by demand or otherwise) or (ii) interest
thereon within 3 Business Days when due; or
61
(O) the occurrence of an Event of Default under and as defined in the
▇▇▇▇▇▇▇ Lone Star Security Agreement;
(P) ▇▇▇ ▇▇▇▇▇▇▇, any of his immediate family members, any of his heirs
or beneficiaries, and any trusts established for the benefit of any of the
foregoing shall cease to own in the aggregate at least 80% of the voting
interests in the Borrower, free and clear of all Liens.
9.2. CONTRACT REMEDIES
(A) Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof,
(I) in the case Of an Event of Default specified in Section 9.
l(h) or 9. l(i), without declaration or notice to the Borrower, all of the
Commitments shall immediately and automatically terminate, and the Loans,
all accrued and unpaid interest thereon and all other amounts owing under
the Loan Documents shall immediately become due and payable, and
(II) in all other cases, upon the direction of the Required
Lenders, the Administrative Agent shall, by notice to the Borrower, declare
all of the Commitments to be terminated forthwith, whereupon such
Commitments shall immediately terminate, and/or declare the Loans, all
accrued and unpaid interest thereon and all other amounts owing under the
Loan Documents to be due and payable forthwith, whereupon the same shall
immediately become due and payable.
In the event that the Loans, all accrued and unpaid interest thereon and all
other amounts owing under the Loan Documents shall have been declared due and
payable pursuant to the provisions of this Section 9.2, the Administrative Agent
(i) upon the direction of the Required Lenders, shall proceed to enforce the
rights of the holders of the Notes by suit in equity, action at law and/or other
appropriate proceedings, whether for payment or the specific performance of any
covenant or agreement contained in the Loan Documents and (ii) may exercise any
and all rights and remedies provided to the Administrative Agent by the Loan
Documents. Except as otherwise expressly provided in the Loan Documents, the
Borrower expressly waives, presentment, demand, protest and all other notices of
any kind in connection with the Loan Documents are hereby expressly waived. The
Borrower hereby further expressly waives and covenants not to assert any
appraisement, valuation, stay, extension, redemption or similar laws, now or at
any time hereafter in force which might delay, prevent or otherwise impede the
performance or enforcement of any Loan Document.
(B) In the event that all of the Commitments shall have been
terminated or the Loans, all accrued and unpaid interest thereon and all other
amounts owing under the Loan Documents shall have been declared due and payable
pursuant to the provisions of this Section 9.2, subject to Section 6.2 of the
Security Agreement, any funds received by any Credit Party from or on behalf of
the Borrower (except funds received by any Lender as a result of a purchase from
any other Lender pursuant to Section 2.7(c)) shall be remitted to, and applied
by, the Administrative Agent in the following manner and order:
(I) FIRST, to the payment of interest on, and then the principal
portion of, any Loans which the Administrative Agent may have advanced on
62
behalf of any Lender for which the Administrative Agent has not then been
reimbursed by such Lender or any Loan Party;
(II) SECOND, to reimburse the Administrative Agent and the
Lenders, in that order, for any expenses due from the Borrower pursuant to
the provisions of Section 11.4,
(III) THIRD, to the payment of the Fees, pro rata according to
the Fees due and owing to the Administrative Agent and the Lenders,
(IV) FOURTH, to the payment of any other fees, expenses or other
amounts (other than the principal of and interest on the Loans) payable by
the Loan Parties to the Credit Parties under the Loan Documents,
(V) FIFTH, to the payment, pro rata according to the Total
Percentage of each Lender, of interest due on the Facility B Loans,
(VI) SIXTH, to the payment, pro rata according to the Total
Percentage of each Lender, of interest due on the Facility A Loans,
(VII) SEVENTH, TO the payment to the Lenders of, and on a pro
rata basis in accordance with, the unpaid principal amount of the Facility
B Loans,
(VIII) EIGHTH, to the payment to the Lenders of, and on a pro
rata basis in accordance with, the unpaid principal amount of the Facility
A Loans,
(IX) NINTH, to the payment of each amount then due and payable
under each Secured Hedging Agreement, and
(X) TENTH, any remaining funds shall be paid to the Borrower or
as a court of competent jurisdiction shall direct.
9.3. LIQUIDATION OF ZIONS STOCK
The Credit Parties agree that if the Loans, all accrued and unpaid
interest thereon and all other amounts owing under the Loan Documents shall
have become due and payable and the Borrower shall not have paid the full
amount due, notwithstanding anything in any Loan Document to the contrary,
the Administrative Agent and the Credit Parties shall not exercise their
rights to dispose of the Zions Stock constituting Collateral prior to the
time set forth below:
(I) in the case of a payment default on the Facility A Maturity
Date, the Administrative Agent and the Credit Parties may exercise their
rights to dispose of the Zions Stock constituting Collateral at any time;
and
(II) except as provided in clause (i) above:
(A) if, at the time of the acceleration of the Loans, the
Aggregate Facility A Exposure is less than or equal to 45% of Zions Stock
Value, the Administrative Agent and the Credit Parties shall not exercise
their rights to
63
dispose of the Zions Stock constituting Collateral until 48 hours
thereafter, PROVIDED, HOWEVER, that if at any time during such 48 hour
period, the Aggregate Facility A Exposure is greater than 45 % of Zions
Stock Value, the Administrative Agent and the Credit Parties shall be free
to exercise their rights to dispose of the Zions Stock constituting
Collateral at any time, and
(B) if, at the time of the acceleration of the Loans, the
Aggregate Facility A Exposure is greater than 45% of Zions Stock Value, the
Administrative Agent and the Credit Parties shall be free to exercise their
rights to dispose of the Zions Stock constituting Collateral at any time.
ARTICLE 10. THE ADMINISTRATIVE AGENT
10.1. APPOINTMENT
Each of the Lenders hereby irrevocably appoints the Administrative
Agent as its agent and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
10.2. INDIVIDUAL CAPACITY
The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
Person and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower, any Subsidiary, or any
Affiliate of the Borrower as if it were not the Administrative Agent hereunder.
10.3. EXCULPATORY PROVISIONS
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (1) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (2) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 11.1), and (3) except as expressly set forth herein, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any Subsidiary that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 11.1) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or another Credit Party and the
Administrative Agent Shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
64
connection with this Agreement, (ii) the contents of any certificate, report or
other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreements, instrument or document,
or (v) the satisfaction of any condition set forth in Articles 5 or 6 or
elsewhere herein, other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent.
10.4. RELIANCE BY ADMINISTRATIVE AGENT
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel to the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
10.5. RELIANCE BY ADMINISTRATIVE AGENT
The Administrative Agent may perform any and all of its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent, PROVIDED THAT no such delegation shall
serve as a release of the Administrative Agent or waiver by the Borrower of any
rights hereunder. The Administrative Agent and any such sub-agent may perform
any and all of its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of this Article 10 shall
apply to any such subagent and to the Related Parties of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.
10.6. RESIGNATION; SUCCESSOR ADMINISTRATIVE AGENT
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this Section 10.6, the Administrative Agent
may resign at any time by notifying the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower
and such successor; After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 11.1 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective
65
Related Parties in respect of any actions taken or permitted to be taken by any
of them while it was acting as Administrative Agent.
10.7. NON-RELIANCE ON OTHER CREDIT PARTIES
Each Credit Party acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Credit Party and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Credit Party also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Credit Party and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
10.8. SYNDICATION AGENT
The Syndication Agent shall have no duties or obligations under the
Loan Documents in its capacity as Syndication Agent. The Syndication Agent in
such capacity shall be entitled to the same protections, indemnities and rights,
and subject to the same standards with respect to its actions, inactions and
duties, as the Administrative Agent.
ARTICLE 11. OTHER PROVISIONS
11.1. AMENDMENTS AND WAIVERS
(A) No failure to exercise and no delay in exercising, on the part of
any Credit Party, any right, remedy, power or privilege under any Loan Document
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege under any Loan Document preclude any other
or further exercise thereof or the exercise of any other, right, remedy, power
or privilege. The rights, remedies, powers and privileges under the Loan
Documents are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law. No waiver of any provision of any Loan Document or
consent to any departure by any Loan Party therefrom shall in any event be
effective unless the same shall be permitted by this Section 11.1, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given. Without limiting the generality of the foregoing, the
making of a Loan shall not be construed as a waiver of any Default, regardless
of whether any Credit Party may have had notice or knowledge of such Default at
the time.
(B) Notwithstanding anything to the contrary contained in any Loan
Document, with the written consent of the Required Lenders, the Administrative
Agent and the appropriate parties to the Loan Documents (other than the other
Credit Parties) may, from time to time, enter into written amendments,
supplements or modifications thereof and, with the consent of the Required
lenders, the Administrative Agent on behalf of the other Credit Parties, may
execute and deliver to any such parties a written instrument waiving or
consenting to the departure from, on such terms and conditions as the
Administrative Agent may specify in such instrument, any of the requirements of
the Loan Documents or any Default and its consequences; PROVIDED, HOWEVER, that
no such amendment, supplement, modification, waiver or consent shall:
66
(I) increase the Commitments of any Lender, without such Lender's
consent;
(II) unless agreed to by each Credit Party affected thereby, (A)
reduce the principal amount of any Loan, or reduce the rate of interest
thereon, or reduce any fees or other obligations payable under the Loan
Documents or (B) extend any date (including the Facility A Maturity Date
and the Facility B Maturity Date) fixed for the payment of any principal of
or interest on any Loan, any fees, or any other obligation payable under
the Loan Documents;
(III) unless agreed to by all of the Lenders, (A) increase the
Aggregate Commitments (other than in accordance with Section 2.3(e)), (B)
change the definition of "REQUIRED LENDERS" or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent
hereunder, (C) change Section 2.7 in a manner that would alter the pro rata
sharing of payments required thereby, (D) extend the time required for, or
reduce the amount of, any scheduled mandatory reduction of the Aggregate
Facility B Commitment pursuant to Section 2.3(b); (E) consent to any
assignment or delegation by any Loan Party of any of its rights or
obligations under any Loan Document, (F) release any Subsidiary Guarantor
from its obligations under the this Agreement (except as expressly provided
therein or as a result of the termination of the existence of such
Subsidiary Guarantor in a transaction permitted by Sections 8.3, 8.4 or
8.6), or release any of the Collateral from the Liens of the Security
Documents (except as may be expressly permitted thereunder or in connection
with a transaction permitted by Sections 8.3, 8.4 or 8.6); and
(IV) unless agreed to by the Administrative Agent, amend, modify
or otherwise affect the rights or duties of the Administrative Agent under
the Loan Documents.
Any such amendment, supplement, modification, waiver or consent shall
apply equally to each Credit Party and shall be binding upon each Credit
Party and each Loan Party to the applicable Loan Document, and upon all
future holders of the Notes. In the case of any waiver, the Credit Parties
and each Loan Party to the applicable Loan Document shall be restored to
their former position and rights hereunder and under the outstanding Notes
and other Loan Documents to the extent provided for in such waiver, and any
Default waived shall not extend to any subsequent or other Default, or
impair any right consequent thereon.
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11.2. NOTICES
All notices, requests and demands to or upon the respective parties to
the Loan Documents to be effective shall be in writing and, unless otherwise
expressly provided therein, shall be deemed to have been duly given or made when
delivered by hand, one Business Day after having been sent by overnight courier
service, or when deposited in the mail, first-class postage prepaid, or, in the
case of notice by facsimile, when sent, to the last address (including telephone
and facsimile numbers) for such party specified by such party in a written
notice delivered to the Administrative Agent and the Borrower or, if no such
written notice was so delivered, as follows:
(A) in the case of any Loan Party, to such Loan Party c/▇ ▇▇▇▇▇▇▇
Media Group, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇;
Attention: President, Telephone: (▇▇▇) ▇▇▇-▇▇▇▇; Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, with
a copy to ▇▇▇▇▇▇▇ Media Group, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Chief Financial Officer, Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇;
(B) in the case of the Administrative Agent, to The Bank of New York,
Agency Function Administration, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇;
Attention: Geneveso ▇▇▇▇▇▇▇▇, Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Facsimile (212)
635-6365 or 6366 or 6367; with a copy to: The Bank of New York, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assistant Vice
President, Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Facsimile (▇▇▇) ▇▇▇-▇▇▇▇;
(C) in the case of a Lender, at its address set forth on its signature
page hereto or, in the Assignment or Acceptance Agreement or other instrument
pursuant to which it became a Lender;
PROVIDED, HOWEVER, that any notice, request or demand by the Borrower pursuant
to Sections 2.2, 2.3, 2.4 or 3.3 shall not be effective until received. Any
party to a Loan Document may rely on signatures of the parties thereto which are
transmitted by facsimile or other electronic means as fully as if originally
signed.
11.3. SURVIVAL
All covenants, agreements, representations and warranties made by the
Borrower herein and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of this Agreement and the making of any Loans, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default or incorrect representation or warranty at the time any credit is
extended hereunder.
11.4. EXPENSES; INDEMNITY
(A) The Borrower agrees, on demand therefor and whether any Loan is
made (i) to pay or reimburse the Administrative Agent and its Related Parties
for all reasonable out-of-pocket expenses incurred thereby, including the
reasonable fees, charges and disbursements of counsel, in connection with the
development, preparation, execution, syndication and administration of, the Loan
Documents (including any amendment,
68
supplement or other modification thereto (whether or not executed or
effective)), any documents prepared in connection therewith and the consummation
of the transactions contemplated thereby and (ii) to pay or reimburse each
Credit Party for all of its costs and expenses, including reasonable fees and
disbursements Of counsel, incurred in connection with (A) the protection or
enforcement of its rights under the Loan Documents, including any related
collection proceedings and any negotiation, restructuring or "WORK-OUT", and (B)
the enforcement of this Section.
(B) The Borrower shall, on demand therefor, indemnify each Credit
Party and each of their respective Related Parties (each, an "INDEMNIFIED
PERSON") against, and hold each Indemnified Person harmless from, any and all
losses, claims, damages, penalties, liabilities and related expenses, including
the fees, charges and disbursements of any counsel, incurred by or asserted
against any Indemnified Person in connection with or in any way arising out of
any Loan Document or any Transaction, including as a result of (i) any breach by
the Borrower of the terms of any Loan Document, the use of proceeds of any Loan
or any action or failure to act on the part of the Borrower, (ii) the
consummation or proposed consummation of the Transactions or any other
transactions contemplated hereby, (iii) any Loan or the use of the proceeds
therefrom, (iv) any actual or alleged presence or release of Hazardous Substance
on or from any property owned or operated by the Borrower or any of its
Subsidiaries, or any liability in respect of any Environmental Law related in
any way to the Borrower or any of its Subsidiaries, (v) any action or failure to
act on the part of the Borrower or (vi) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnified Person is a party thereto (collectively, the "INDEMNIFIED
LIABILITIES"), PROVIDED THAT such indemnity shall not, as to any Indemnified
Person, be available to the extent that such losses, claims, damages,
liabilities or related expenses resulted from the gross negligence or willful
misconduct of such Indemnified Person.
(C) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent or any of its Affiliates under
subsections (a) or (b) of this Section 11.4, each Lender severally agrees, on
demand therefor, to pay to the Administrative Agent such Lender's Total
Percentage of such amount (determined as of the time that the applicable
unreimbursed expense or Indemnified Liability is sought).
(D) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any indemnified Person for any
special, indirect, consequential or punitive damages (whether accrued and
whether known or suspected to exist in its favor) arising out of, in connection
with, or as a result of, the Loan Documents, the transactions contemplated
thereby or any Loan or the use of the proceeds thereof.
11.5. SUCCESSORS AND ASSIGNS
(A) The Loan Documents shall be binding upon and inure to the benefit
of each of the parties thereto, and their respective successors and assigns,
except that no Loan Party may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent Of each Credit Party
(and any such attempted assignment or transfer without such consent shall be
null and void).
69
(B) Each Lender may assign all or a portion of its rights and
obligations under the Loan Documents to (i) any Subsidiary or Affiliate of such
Lender, (ii) any other Lender or Affiliate of such other Lender, or (iii) with
the consent of the Borrower and the Administrative Agent (which consents shall
not be unreasonably withheld or delayed and, in the case of the Borrower's
consent, shall not be required during the continuance of an Event of Default),
to any other Eligible Institution, PROVIDED THAT:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining amount of
the assigning Lender's Facility A Commitment or Facility B Commitment, as
the case may be, the amount of the Facility A Commitment or the Facility B
Commitment, as the case may be, of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance
Agreement with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000; and
(B) the assignor and such assignee shall deliver to the
Administrative Agent three copies of an Assignment and Acceptance Agreement
executed by each of them, along with an assignment fee in the sum of $3,500
for the account of the Administrative Agent and, if the assignee is not
then a Lender and is a Foreign Credit Party, the documents required by
Section 3.7(c).
Upon receipt of such number of executed copies of each such Assignment and
Acceptance Agreement together with the assignment fee therefor and the consents
required to such assignment, if required, the Administrative Agent shall record
the same and execute not less than two copies of such Assignment and Acceptance
Agreement in the appropriate place, deliver one such copy to the assignor and
one such copy to the assignee, and deliver one photocopy thereof, as executed,
to the Borrower. From and after the Assignment Effective Date specified in, and
as defined in, such Assignment and Acceptance Agreement, the assignee thereunder
shall, unless already a Lender, become a party hereto and shall, for all
purposes of the Loan Documents, be deemed a "LENDER" AND, to the extent provided
in such Assignment and Acceptance Agreement, the assignor Lender thereunder
shall be released from its obligations under this Agreement and the other Loan
Documents. The Borrower agrees that, if requested, in connection with each such
assignment, it shall at its own cost and expense execute and deliver to the
Administrative Agent or such assignee a Note, each payable to the order of such
assignee and dated the Effective Date. The Administrative Agent shall be
entitled to rely upon the representations and warranties made by the assignee
under each Assignment and Acceptance Agreement.
(C) Each Lender may grant participations in all or any part of its
rights and OBLIGATIONS under the Loan Documents to one or more Eligible
INSTITUTIONS, PROVIDED THAT (i) such Lender's obligations under this Agreement
and the other Loan Documents shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parTIES TO this Agreement and the other
LOAN Documents for the performance of such obligations, (iii) the Borrower and
the Credit Parties shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under the Loan
Documents, (iv) the granting of such participation does not require that any
additional loss, cost or expense be borne by the Borrower at any time, and (v)
the voting rights of any holder of any participation shall be limited to
decisions that in accordance with Section 11,1 require the consent of all of the
Lenders.
70
(D) Subject to subsection (e) below, any Lender may at any time assign
all or any portion of its rights under any Loan Document to any Federal Reserve
Bank.
(E) Except to the extent of any assignment pursuant to subsection (b)
above, no Lender shall be relieved of any of its obligations under the Loan
Documents as a result of any assignment of or granting of participations in, all
or any part of its rights and obligations under the Loan Documents.
11.6. COUNTERPARTS; INTEGRATION
Each Loan Document (other than the Notes) may be executed by one or
more of the parties thereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
document. It shall not be necessary in making proof of any Loan Document to
produce or account for more than one counterpart signed by the party to be
charged. Delivery of an executed counterpart of a signature page of any Loan
Document by facsimile shall be effective as delivery of a manually executed
counterpart of such Loan Document. The Loan Documents and any separate letter
agreements between the Borrower and a Credit Party with respect to fees embody
the entire agreement and understanding among the Loan Parties and the Credit
Parties with respect to the subject matter thereof and supersede all prior
agreements and understandings among the Loan Parties and the Credit Parties with
respect to the subject matter thereof,
11.7. SEVERABILITY
Every provision of the Loan Documents is intended to be severable, and
if any term or provision thereof shall be invalid, illegal or unenforceable for
any reason, the validity, legality and enforceability of the remaining
provisions thereof shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not affect
the validity, legality or enforceability of any such term or provision in any
other jurisdiction.
11.8. GOVERNING LAW
THE LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
11.9. JURISDICTION; SERVICE OF PROCESS
Each party to a Loan Document hereby irrevocably submits to the
nonexclusive jurisdiction of any New York State or Federal court sitting in the
City of New York over any suit, action or proceeding arising out of or relating
to the Loan Documents. Each party to a Loan Document hereby irrevocably waives,
to the fullest extent permitted or not prohibited by law, any objection which it
may now or hereafter have to the laying of the venue of any Such suit, action or
proceeding brought in such a court and any claim that any such suit, action or
proceeding brought in such a court has been brought in an inconvenient forum.
Each Loan Party hereby agrees that a final judgment in any such suit, action or
proceeding brought in such a court, after all appropriate appeals, shall be
conclusive and binding upon it and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect
71
any right that a Credit Party may otherwise have to bring any action or
proceeding relating to Loan Documents against the Borrower or its properties in
the courts of any jurisdiction. Each party to a Loan Document hereby irrevocably
consents to service of process in the manner provided for notices in Section
11.2. Nothing in this Agreement will affect the right of any party to a Loan
Document to serve process in any other manner permitted by law.
11.10. WAIVER OF TRIAL BY JURY
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 11.10.
ARTICLE 12. SUBSIDIARY GUARANTEE
The Subsidiary Guarantors agree that, so long as any Commitment is in
effect and until the principal of, and interest on, each Loan, all Fees and all
other amounts payable under the Loan Documents shall have been paid in full:
12.1. GUARANTEE
(A) Subject to Section 12.1(b), each Subsidiary Guarantor hereby
absolutely, irrevocably and unconditionally guarantees the full and prompt
payment when due (whether at stated maturity, by acceleration or otherwise) of
the Borrower Obligations. The agreements of each Subsidiary Guarantor under this
Article 12 constitute a guarantee of payment, and no Credit Party shall have any
obligation to enforce any Loan Document or exercise any right or remedy with
respect to any collateral security thereunder by any action, including making or
perfecting any claim against any Person or any collateral security for any of
the Borrower Obligations prior to being entitled to the benefits of this
Agreement. The Administrative Agent may, at its option, proceed against the
Subsidiary Guarantors, or any one or more of them, in the first instance, to
enforce the Guarantor Obligations without first proceeding against the Borrower
or any other Person, and without first resorting to any other rights or
remedies, as the Administrative Agent may deem advisable. In furtherance hereof,
if any Credit Party is prevented by law from collecting or otherwise hindered
from collecting or otherwise enforcing any Borrower Obligation in accordance
with its terms, such Credit Party shall be entitled to receive hereunder from
the Subsidiary Guarantors after demand therefor, the sums that would have been
otherwise due had such collection or enforcement not been prevented or hindered.
(B) Notwithstanding anything to the contrary contained herein, the
maximum aggregate amount of the obligations of each Subsidiary Guarantor
hereunder
72
shall not, as of any date of determination, exceed the lesser of (i) the
greatest amount that is valid and enforceable against such Subsidiary Guarantor
under principles of New York State contract law, and (ii) the greatest amount
that would not render such Subsidiary Guarantor's liability hereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11
of the United States Code or any provisions of applicable state law
(collectively, the "FRAUDULENT TRANSFER LAWS"), in each case after giving effect
to all other liabilities of such Subsidiary Guarantor, contingent or otherwise,
that are relevant under the Fraudulent Transfer Laws (specifically excluding,
however, any liability (A) in respect of intercompany indebtedness to the
Borrower or any affiliate or subsidiary of the Borrower, to the extent that such
intercompany indebtedness would be discharged in an amount equal to the amount
paid by such Subsidiary Guarantor hereunder, and (B) under any guarantee of (1)
senior unsecured indebtedness, or (2) indebtedness subordinated in right of
payment to any Borrower Obligation, in either case that contains a limitation as
to maximum liability similar to that set forth in this Section 12.1(b) and
pursuant to which the liability of such Subsidiary Guarantor hereunder is
included in the liabilities taken into account in determining such maximum
liability) and after giving effect as assets to the value (as determined under
the applicable provisions of the Fraudulent Transfer Laws) of any rights to
subrogation, contribution, reimbursement, indemnity or similar rights of such
Subsidiary Guarantor pursuant to applicable law or any agreement providing for
an equitable allocation among such Subsidiary Guarantor and other affiliates or
subsidiaries of the Borrower of obligations arising under guarantees by such
parties.
(C) Each Subsidiary Guarantor agrees that the Guarantor Obligations
may at any time and from time to time exceed the maximum aggregate amount of the
obligations of such Subsidiary Guarantor hereunder without impairing this
Agreement or affecting the rights and remedies of any Credit Party hereunder.
12.2. ABSOLUTE OBLIGATION
Subject to Section 12.5(c), no Subsidiary Guarantor shall be released
from liability hereunder unless and until the Commitments have terminated and
either (i) the Borrower shall have paid in full the outstanding principal
balance of the Loans, together with all accrued and unpaid interest thereon, and
all other amounts then due and owing under the Loan Documents, or (ii) the
Guarantor Obligations of such Subsidiary Guarantor shall have been paid in full
in cash. Each Subsidiary Guarantor acknowledges and agrees that (a) no Credit
Party has made any representation or warranty to such Subsidiary Guarantor with
respect to the Borrower, any of its Subsidiaries, any Loan Document, or any
agreement, instrument or document executed or delivered in connection therewith,
or any other matter whatsoever, and (b) such Subsidiary Guarantor shall be
liable hereunder, and such liability shall not be affected or impaired,
irrespective of (A) the validity or enforceability of any Loan Document, or any
agreement, instrument or document executed or delivered in connection therewith,
or the collectability of any of the Borrower Obligations, (B) the preference or
priority ranking with respect to any of the Borrower Obligations, (C) the
existence, validity, enforceability or perfection of any security interest or
collateral security under any Loan Document, or the release, exchange,
substitution or loss or impairment of any such security interest or collateral
security, (D) any failure, delay, neglect or omission by any Credit Party to
realize upon or protect any direct or indirect collateral security,
indebtedness, liability or obligation, any Loan Document, or any agreement,
instrument or document executed or delivered in connection therewith, or any of
the Borrower Obligations, (E) the existence or exercise of any right of set-off
by any Credit Party, (F) the existence, validity or enforceability of any other
guarantee with respect to any of the Borrower Obligations, the liability of any
other Person in respect of any of the
73
Borrower Obligations, or the release of any such Person or any other guarantor
of any of the Borrower Obligations, (G) any act or omission of any Credit Party
in connection with the administration of any Loan Document or any of the
Borrower Obligations, (H) the bankruptcy, insolvency, reorganization or
receivership of, or any other proceeding for the relief of debtors commenced by
or against, any Person, (I) the disaffirmance or rejection, or the purported
disaffirmance or purported rejection, of any of the Borrower Obligations, any
Loan Document, or any agreement, instrument or document executed or delivered in
connection therewith, in any bankruptcy, insolvency, reorganization or
receivership, or any other proceeding for the relief of debtor, relating to any
Person, (I) any law, regulation or decree now or hereafter in effect that might
in any manner affect any of the terms or provisions of any Loan Document, or any
agreement, instrument or document executed or delivered in connection therewith
or any of the Borrower Obligations, or that might cause or permit to be invoked
any alteration in the time, amount, manner or payment or performance of any of
the Borrower's obligations and liabilities (including the Borrower Obligations),
(K) the merger or consolidation of the Borrower into or with any Person, (L) the
sale by the Borrower of all or any part of its assets, (M) the fact that at any
time and from time to time none of the Borrower Obligations may be outstanding
or owing to any Credit Party, (N) any amendment or modification of, or
supplement to, any Loan Document, or (O) any other reason or circumstance that
might otherwise constitute a defense available to or a discharge of the Borrower
in respect of its obligations or liabilities (including the Borrower
Obligations) or of such Subsidiary Guarantor in respect of any of the Guarantor
Obligations (other than by the performance in full thereof).
12.3. REPAYMENT IN BANKRUPTCY, ETC.
If, at any time or times subsequent to the payment of all or any part
of the Borrower Obligations or the Guarantor Obligations, any Credit Party shall
be required to repay any amounts previously paid by or on behalf of the Borrower
or any Subsidiary Guarantor in reduction thereof by virtue of an order of any
court having jurisdiction in the premises, including as a result of an
adjudication that such amounts constituted preferential payments or fraudulent
conveyances, the Subsidiary Guarantors unconditionally agree to pay to the
Administrative Agent, within 10 days after demand, a sum in cash equal to the
amount of such repayment, together with interest on such amount from the date of
such repayment by such Credit Party to the date of payment to the Administrative
Agent at the applicable after-maturity rate set forth in Section 3.1 (b).
12.4. ADDITIONAL SUBSIDIARY GUARANTORS
Upon the execution and delivery to the Administrative Agent of a
Guarantee Supplement by any Person, appropriately acknowledged, such Person
shall be a Subsidiary Guarantor.
12.5. MISCELLANEOUS
(A) Each Subsidiary Guarantor agrees that any statement of account
with respect to the Borrower Obligations from any Credit Party that binds the
Borrower shall also be binding upon such Subsidiary Guarantor, and that copies
of said statements of account maintained in the regular course of such Credit
Party's business may be used in evidence against such Subsidiary Guarantor in
order to establish its Guarantor Obligations.
(B) Subject to the limitations set forth in Section 12.1(b), the
Guarantor Obligations shall be joint and several.
74
(C) Notwithstanding anything to the contrary contained herein, on and
as of the date of any merger, consolidation, Acquisition or Disposition
permitted by Section 8.3, 8.5 or 8.6, as the case may be, that shall result in
any Subsidiary Guarantor ceasing to be a Subsidiary, such Subsidiary Guarantor
shall, without the consent of any Credit Party, cease to be a Subsidiary
Guarantor and shall have no further liability hereunder.
75
IN WITNESS WHEREOF, the parties hereto have caused this Credit and
Guarantee Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
▇▇▇▇▇▇▇ MEDIA GROUP, INC.
By:
--------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
▇▇▇▇▇▇▇ NEW MEXICO, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman
▇▇▇▇▇▇▇ OUTDOOR MEDIA, INC.
By:
--------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
▇▇▇▇▇▇▇ NEW MEDIA, L.C.
By:
--------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Manager
NEWSLINE, L.C.
By: ▇▇▇▇▇▇▇ New Media, L.C.,
Managing Member
By:
--------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Manager
IN WITNESS WHEREOF, the parties hereto have caused this Credit and
Guarantee Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
▇▇▇▇▇▇▇ MEDIA GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
▇▇▇▇▇▇▇ NEW MEXICO, INC.
By:
-------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman
▇▇▇▇▇▇▇ OUTDOOR MEDIA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
▇▇▇▇▇▇▇ NEW MEDIA, L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Manager
NEWSLINE, L.C.
By: ▇▇▇▇▇▇▇ New Media, L.C.,
Managing Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Manager
▇▇▇▇▇▇▇ MEDIA GROUP, INC. CREDIT AND GUARANTEE AGREEMENT
THE BANK OF NEW YORK,
Individually and as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
Facility A Commitment: $10,000,000
Facility B Commitment: $15,000,000
ADDRESS FOR NOTICES
---------------------
The Bank of New York
Agency Function Administration
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Geneveso ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ or 6366 or 6367
with a copy to:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Assistant Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ MEDIA GROUP, INC. CREDIT AND GUARANTEE AGREEMENT
NATIONSBANK, N.A.,
Individually and as Syndication Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Facility A Commitment: $10,000,000
Facility B Commitment: $15,000,000
ADDRESS FOR NOTICES
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NationsBank, N.A.
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▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇