EXHIBIT 10.8
CREDIT AGREEMENT
DATED AS OF AUGUST 31, 2000
AMONG
▇▇▇▇▇▇▇ MEZZANINE HOLDINGS, LLC,
AS BORROWER,
THE LENDERS LISTED HEREIN,
AS LENDERS,
FLEET NATIONAL BANK,AS SYNDICATION AGENT,
BANK OF AMERICA, N.A.,
AS DOCUMENTATION AGENT,
THE BANK OF NEW YORK,
AS CO-DOCUMENTATION AGENT
AND MANAGING AGENT,
AND
BANK OF MONTREAL, CHICAGO BRANCH,
AS ADMINISTRATIVE AGENT
TABLE OF CONTENTS
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PAGE
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Section 1. DEFINITIONS..................................................2
1.1 Certain Defined Terms........................................2
1.2 Accounting Terms; Utilization of GAAP for Purposes of
Calculations Under Agreement................................24
1.3 Other Definitional Provisions...............................24
Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS..................24
2.1 Commitments; Making of Loans; Notes.........................24
2.2 Interest on the Loans.......................................27
2.3 Fees........................................................32
2.4 Repayments, Prepayments and Reductions in Revolving Loan
Commitments; General Provisions Regarding Payments..........33
2.5 Use of Proceeds.............................................42
2.6 Special Provisions Governing LIBOR Rate Loans...............42
2.7 Increased Costs; Taxes; Capital Adequacy....................44
2.8 Obligation of Lenders and Issuing Lenders to Mitigate.......48
2.9 Affected Lenders............................................49
2.10 Guaranties of and Security for the Obligations..............50
Section 3. LETTERS OF CREDIT...........................................51
3.1 Issuance of Letters of Credit and Lenders' Purchase of
Participations Therein......................................51
3.2 Letter of Credit Fees.......................................53
3.3 Drawings and Reimbursement of Amounts Drawn Under Letters of
Credit......................................................54
3.4 Obligations Absolute........................................56
3.5 Indemnification; Nature of Issuing Lender's Duties..........57
3.6 Increased Costs and Taxes Relating to Letters of Credit.....58
Section 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT...................59
4.1 Conditions to Term Loans and Initial Revolving Loans........59
4.2 Conditions to Permitted Acquisitions........................61
4.3 Conditions to All Loans.....................................63
4.4 Conditions to Letters of Credit.............................63
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TABLE OF CONTENTS (CONT'D)
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Section 5. BORROWER'S REPRESENTATIONS AND WARRANTIES...................64
5.1 Organization, Powers, Qualification, Good Standing,
Business and Subsidiaries...................................64
5.2 Authorization of Borrowing, etc.............................66
5.3 Financial Condition.........................................67
5.4 No Material Adverse Change; No Restricted Junior Payments...67
5.5 Title to Properties; Liens..................................67
5.6 Litigation; Adverse Facts...................................68
5.7 Payment of Taxes............................................68
5.8 Governmental Regulation.....................................68
5.9 Securities Activities.......................................68
5.10 Employee Benefit Plans......................................69
5.11 Certain Fees................................................69
5.12 Environmental Protection....................................69
5.13 Employee Matters............................................70
5.14 Solvency....................................................71
5.15 Insurance...................................................71
5.16 Disclosure..................................................71
Section 6. BORROWER'S AFFIRMATIVE COVENANTS............................71
6.2 Corporate Existence, etc....................................74
6.3 Payment of Taxes and Claims; Tax Consolidation..............75
6.4 Maintenance of Properties; Insurance........................75
6.5 Inspection; Lender Meeting..................................75
6.6 Compliance with Laws, etc...................................76
6.7 Environmental Disclosure and Inspection.....................76
6.8 Borrower's Remedial Action Regarding Hazardous Materials....77
6.9 Interest Rate Protection....................................77
Section 7. BORROWER'S NEGATIVE COVENANTS...............................77
7.1 Indebtedness................................................77
7.2 Liens and Related Matters...................................78
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TABLE OF CONTENTS (CONT'D)
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7.3 Investments; Joint Ventures.................................79
7.4 Contingent Obligations......................................80
7.5 Restricted Junior Payments..................................81
7.6 Financial Covenants.........................................81
7.7 Restriction on Fundamental Changes; Asset Sales and
Acquisitions................................................82
7.8 Sales and Lease-Backs.......................................84
7.9 Sale or Discount of Receivables.............................85
7.10 Transactions with Shareholders and Affiliates...............85
7.11 Conduct of Business.........................................85
7.12 Amendments or Waivers of Subordinated Debt Documents and
Charter Documents...........................................86
7.13 Fiscal Year.................................................86
Section 8. EVENTS OF DEFAULT...........................................86
8.1 Failure to Make Payments When Due...........................86
8.2 Default in Other Agreements.................................86
8.3 Breach of Certain Covenants.................................87
8.4 Breach of Warranty..........................................87
8.5 Other Defaults Under Loan Documents.........................87
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc........87
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc..........88
8.8 Judgments and Attachments...................................88
8.9 Dissolution.................................................88
8.10 Employee Benefit Plans......................................88
8.11 Failure of Security, Guaranty or Subordination..............89
8.12 FCC Licenses................................................89
8.13 Business Interruption.......................................89
8.14 Change of Control...........................................89
Section 9. AGENT.......................................................90
9.1 Appointment.................................................90
9.2 Powers; General Immunity....................................91
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TABLE OF CONTENTS (CONT'D)
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9.3 Representations and Warranties; No Responsibility For
Appraisal of Creditworthiness...............................92
9.4 Right to Indemnity..........................................92
9.5 Successor Administrative Agent..............................93
9.6 Security Documents, Etc.....................................93
9.7 Appointment of Separate Administrative Agent................94
Section 10. MISCELLANEOUS...............................................94
10.1 Assignments and Participations in Loans and Letters of
Credit......................................................94
10.2 Expenses....................................................97
10.3 Indemnity...................................................97
10.4 Set-Off.....................................................98
10.5 Ratable Sharing.............................................98
10.6 Amendments and Waivers......................................99
10.7 Independence of Covenants..................................100
10.8 Notices....................................................100
10.9 Survival of Representations, Warranties and Agreements.....100
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative......100
10.11 Marshalling; Payments Set Aside............................101
10.12 Severability...............................................101
10.13 Obligations Several; Independent Nature of Lenders'
Rights.....................................................101
10.14 Headings...................................................101
10.15 Applicable Law.............................................102
10.16 Successors and Assigns.....................................102
10.17 Consent to Jurisdiction and Service of Process.............102
10.18 Waiver of Jury Trial.......................................102
10.19 Confidentiality............................................103
10.20 Counterparts; Effectiveness................................103
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EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
IV FORM OF TERM NOTE
V FORM OF REVOLVING NOTE
VI FORM OF COMPLIANCE CERTIFICATE
VII FORM OF OPINION OF ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
VIII FORM OF SUBSIDIARY GUARANTY
IX-A FORM OF CREDIT PARTIES SECURITY AGREEMENT
IX-B FORM OF HOLDINGS PLEDGE AGREEMENT
X BFT CONSENT LETTER
v
SCHEDULES
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
5.1D SUBSIDIARIES OF OBLIGORS
5.1E FCC LICENSES AND STATION MATTERS
5.1E(v) LMAs
5.1F COLLATERAL MATTERS
5.12 ENVIRONMENTAL MATTERS
7.1 EXISTING INDEBTEDNESS
7.3 EXISTING INVESTMENTS
7.4 EXISTING CONTINGENT OBLIGATIONS
vi
▇▇▇▇▇▇▇ MEZZANINE HOLDINGS, LLC
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of August 31, 2000 and
entered into by and among ▇▇▇▇▇▇▇ MEZZANINE HOLDINGS, LLC ("BORROWER"), THE
FINANCIAL INSTITUTIONS PARTY HERETO (as further defined below, each individually
referred to herein as a "LENDER" and collectively as "LENDERS"), FLEET NATIONAL
BANK, as syndication agent for Lenders (in such capacity, "SYNDICATION AGENT"),
BANK OF AMERICA, N.A., as documentation agent for Lenders, (in such capacity,
"DOCUMENTATION AGENT"), THE BANK OF NEW YORK, as co-documentation agent and
managing agent for Lenders (in such capacity, "MANAGING AGENT") and BANK OF
MONTREAL, CHICAGO BRANCH ("BANK OF MONTREAL"), as administrative agent for
Lenders (in such capacity, "ADMINISTRATIVE AGENT").
R E C I T A L S
WHEREAS, as of the date hereof, the Borrower and its
Subsidiaries own and operate the radio stations set forth opposite their names
on Part I on SCHEDULE 5.1E;
WHEREAS, certain Subsidiaries of the Borrower are parties to
the Existing Credit Agreement (capitalized terms used in these Recitals without
definition shall have the respective meanings assigned in subsection 1.1
hereof);
WHEREAS, the Borrower desires that Lenders extend certain
credit facilities to the Borrower to (i) refinance the Existing Credit
Agreement, (ii) make Restricted Junior Payments to the extent permitted
hereunder, (iii) pay the purchase price and related fees and expenses for
potential future acquisitions of radio broadcasting stations by Borrower and its
Subsidiaries as permitted hereunder and (iv) provide financing for working
capital and other general corporate purposes of Borrower and its Subsidiaries;
WHEREAS, Borrower's Subsidiaries have agreed to guarantee the
Obligations hereunder and under the other Loan Documents;
WHEREAS, the Borrower and its Subsidiaries desire to secure
their respective Obligations by granting to Administrative Agent, on behalf and
for the ratable benefit of Lenders, First Priority Liens in certain collateral
pursuant to the Credit Parties Security Agreement;
WHEREAS, Holdings has agreed to secure all of the Obligations
hereunder and under the other Loan Documents by granting to Administrative
Agent, on behalf of Lenders, a First Priority Lien on all of its membership
interests in the Borrower pursuant to the Holdings Pledge Agreement;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, Borrower, Lenders,
Syndication Agent, Documentation Agents, Managing Agent and Administrative Agent
agree as follows:
SECTION 1. DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
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The following terms used in this Agreement shall have the following
meanings:
"ACQUIRED STATIONS" means the radio stations to be acquired on
any Permitted Acquisition Closing Date.
"ACQUISITION FCC CONSENT" means the initial or other written
action or actions by the FCC approving the assignment of the FCC
Licenses for each Station to be acquired as part of a Permitted
Acquisition to the respective License Sub in the manner contemplated by
the applicable Permitted Acquisition Documents, all in form and
substance satisfactory to Administrative Agent.
"ADJUSTED LIBOR RATE" means, for any Interest Rate
Determination Date with respect to an Interest Period for a LIBOR Rate
Loan, the rate per annum obtained by DIVIDING (i) the arithmetic mean
(rounded upward to the nearest 1/16 of one percent) of the offered
rates for Dollar deposits with maturities comparable to the Interest
Period for which such Adjusted LIBOR Rate will apply, appearing on
Telerate Page 3750 (or any successor page) at approximately 11:00 A.M.
(London time) on such Interest Rate Determination Date, as determined
by the Administrative Agent BY (ii) a percentage equal to 100% MINUS
the stated maximum rate of all reserve requirements (including, without
limitation, any marginal, emergency, supplemental, special or other
reserves) applicable on such Interest Rate Determination Date to any
member bank of the Federal Reserve System in respect of "Eurocurrency
liabilities" as defined in Regulation D (or any successor category of
similar liabilities under Regulation D).
"ADMINISTRATIVE AGENT" has the meaning assigned to that term
in the introduction to this Agreement and also means and includes any
successor Administrative Agent appointed pursuant to subsection 9.5.
"AFFECTED LENDER" has the meaning assigned to that term in
subsection 2.6C.
"AFFECTED LOANS" has the meaning assigned to that term in
subsection 2.6C.
"AFFILIATE", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common
control with, that Person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as
applied to any Person, means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting
securities or by contract or otherwise.
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"AGENTS" means the Administrative Agent, the Syndication
Agent, the Documentation Agents and the Managing Agent.
"AGREEMENT" shall mean this Credit Agreement dated as of
August 31, 2000, as it may be amended, supplemented, restated or
otherwise modified from time to time.
"AGGREGATE AMOUNTS DUE" has the meaning assigned to that term
in subsection 10.5.
"APPLICABLE MARGIN" means the percentage determined by
reference to subsection 2.2A.
"ASSET SALE" means the sale by any Credit Party to any Person
other than another Credit Party of (i) any of the stock, partnership or
other equity interests of Borrower's Subsidiaries, (ii) substantially
all of the assets of any division or line of business of Borrower or
any of its Subsidiaries, or (iii) any other assets (whether tangible or
intangible) of Borrower or any of its Subsidiaries outside of the
ordinary course of business; PROVIDED, that Asset Sale shall not
include any Permitted Tower Transfer.
"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy", as now and hereafter in effect, or any successor
statute.
"BASE RATE" means, at any time, the higher of (x) the Prime
Rate or (y) the rate which is 1/2 of 1% in excess of the Federal Funds
Effective Rate.
"BASE RATE LOANS" means Loans bearing interest at rates
determined by reference to the Base Rate as provided in subsection
2.2A.
"▇▇▇▇▇▇▇ FAMILY" means, collectively, (i) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, a
resident of the State of Florida, (ii) any of such Person's spouse,
ancestors, descendants, cousins, siblings, or descendants of cousins or
siblings, (iii) any trust wholly revocable by any one or more of such
Person, or such individuals described in (i) or (ii), or any other
trust for the benefit of any one or more of such Person, such
individuals described in (i) or (ii), or any organization to which
gifts at death would qualify for a federal estate charitable deduction
under Internal Revenue Code Section 2055; and (iv) any entity that is
an Affiliate of any one or more of such Person, such individuals
described in (i) or (ii) or trust described in (iii).
"BFT" means ▇▇▇▇▇▇▇ Family Towers, a Delaware corporation and
an Affiliate of Borrower.
"BFT CONSENT LETTER" means a Consent Letter substantially in
the form of Exhibit X annexed hereto executed and delivered by BFT
pursuant to Section 4.1 and any Permitted Tower Transfer.
"BORROWER" has the meaning assigned to that term in the
introduction to this Agreement.
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"BUSINESS DAY" means (i) for all purposes other than as
covered by clause (ii) below, any day excluding Saturday, Sunday and
any day which is a legal holiday under the laws of the State of New
York or Illinois or is a day on which banking institutions located in
such state are authorized or required by law or other governmental
action to close, and (ii) with respect to all notices, determinations,
fundings and payments in connection with the Adjusted LIBOR Rate or any
LIBOR Rate Loans, any day that is a Business Day described in clause
(i) above and that is also a day for trading by and between banks in
Dollar deposits in the London interbank market.
"CAPITAL LEASE", as applied to any Person, means any lease of
any property (whether real, personal or mixed) by that Person as lessee
that, in conformity with GAAP, is accounted for as a capital lease on
the balance sheet of that Person, other than any LMA.
"CASH" means money, currency or a credit balance in a Deposit
Account.
"CASH EQUIVALENTS" means, as at any date of determination, (i)
marketable securities (a) issued or directly and unconditionally
guaranteed as to interest and principal by the United States Government
or (b) issued by any agency of the United States the obligations of
which are backed by the full faith and credit of the United States, in
each case maturing within one year after such date; (ii) marketable
direct obligations issued by any state of the United States of America
or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within one year after
such date and having, at the time of the acquisition thereof, the
highest rating obtainable from either Standard & Poor's Ratings Group,
a division of ▇▇▇▇▇▇-▇▇▇▇, Inc. ("S&P") or ▇▇▇▇▇'▇ Investors Service,
Inc. ("MOODY'S"); (iii) commercial paper maturing no more than one year
from the date of creation thereof and having, at the time of the
acquisition thereof, a rating of at least A-1 from S&P or at least P-1
from Moody's; (iv) certificates of deposit or bankers' acceptances
maturing within one year after such date and issued or accepted by any
Lender or by any commercial bank organized under the laws of the United
States of America or any state thereof or the District of Columbia that
(a) is at least "adequately capitalized" (as defined in the regulations
of its primary Federal banking regulator) and (b) has Tier 1 capital
(as defined in such regulations) of not less than $100,000,000; and (v)
shares of any money market mutual fund that (a) has at least 95% of its
assets invested continuously in the types of investments referred to in
clauses (i) through (iv) above, (b) has net assets of not less than
$500,000,000, and (c) has the highest rating obtainable from either S&P
or Moody's.
"CASH PROCEEDS" means, with respect to any Asset Sale, Cash
payments (including any Cash received by way of deferred payment
pursuant to, or monetization of, a note receivable or otherwise, but
only as and when so received) received from such Asset Sale, PROVIDED
that Cash Proceeds shall not include (i) payments received in respect
of the promissory note received in respect of the sale of WTSB or (ii)
any payments received from time to time in respect of Permitted Sale
Notes.
4
"CHANGE OF CONTROL" means:
(i) Holdings ceasing for any reason to beneficially
own and control 100% of the membership interests of Borrower
or any Credit Party ceasing for any reason (other than a
transfer or an equity issuance permitted hereunder) to
beneficially own and control at least 99.75% of the issued and
outstanding shares of capital stock, partnership interests or
other equity interests of its Subsidiaries;
(ii) the sale, lease or other transfer (other than a
transfer or an equity issuance permitted hereunder) of all or
substantially all of Borrower's assets to any person or group
(as such term is used in Section 13(d)(3) of the Exchange Act)
other than a wholly-owned Subsidiary;
(iii) the adoption of a plan relating to the
liquidation or dissolution of Borrower or managing member
thereof; or
(iv) the consummation of any transaction as a result
of which any person or group (as such term is used in Section
13(d)(3) of the Exchange Act) that is not the ▇▇▇▇▇▇▇ Family
or a member thereof or a "beneficial owner" of (as such term
is used in Section 13(d)(3) of the Exchange Act) any stock,
partnership interests or other equity interests of Holdings as
of the date of this Agreement, directly or indirectly becomes
a "beneficial owner" of more than 50% of the voting stock,
voting partnership interests or other voting equity interests
of Holdings;
"CLOSING DATE" means the Funding Date on or before August 31,
2000 on which the Loans are made and the conditions set forth in
subsection 4.1 are satisfied.
"COLLATERAL" means, collectively, all assets securing the
Obligations pursuant to the Security Documents in accordance with the
terms thereof.
"COMMITMENTS" means the commitments of Lenders to make Loans
as set forth in subsection 2.1A.
"COMMUNICATIONS ACT" means the Communications Act of 1934, as
amended, and the rules, regulations and policies of the FCC promulgated
thereunder, as from time to time in effect.
"COMPLIANCE CERTIFICATE" means a certificate substantially in
the form of EXHIBIT VI annexed hereto delivered to Administrative Agent
and Lenders by Borrower pursuant to subsection 6.1(iii).
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the
sum of the aggregate of all expenditures (whether paid in Cash or other
consideration or accrued as a liability including that portion of
Capital Leases which is capitalized on the consolidated balance sheet
of Borrower and its Subsidiaries) by Borrower and its Subsidiaries
during that period that, in conformity with GAAP, are included in
"additions to property, plant or equipment", or comparable items,
including capitalized expenses, reflected in the consolidated statement
of cash flows of Borrower and its Subsidiaries; PROVIDED that
5
Consolidated Capital Expenditures shall not include amounts paid and
costs incurred in connection with Permitted Acquisitions.
"CONSOLIDATED CASH INTEREST EXPENSE" means, for any period,
Consolidated Interest Expense for such period EXCLUDING, HOWEVER, any
interest expense not payable in Cash (including amortization of
discount and amortization of debt issuance costs).
"CONSOLIDATED EXCESS CASH FLOW" means, for the Borrower and
its Subsidiaries on a consolidated basis, for any fiscal year of the
Borrower, the amount by which the Borrower's and its Subsidiaries'
operating revenues collected in Cash during such fiscal year exceed the
sum (without duplication) of (i) the Borrower's and its Subsidiaries'
consolidated operating expenses paid in Cash in such period (including,
without duplication, Consolidated Cash Interest Expense and general and
administrative expenses), plus (ii) the amount (without duplication)
paid in Cash by the Borrower and its Subsidiaries in such period for
(a) principal repayments of the Consolidated Total Debt (excluding
payments made from Consolidated Excess Cash Flow), plus (b)
Consolidated Capital Expenditures paid in Cash in accordance with the
terms hereof, plus (c) Cash distributions permitted under subsection
7.5(i) hereof, plus (d) fees and expenses paid in Cash by Borrower and
its Subsidiaries hereunder or under the other Loan Documents for the
effectiveness of such agreements and the other Closing Date
transactions and for amendments and waivers thereto and in connection
with the initial public offering of Holdings in February of 2000, plus
(e) all legal fees and expenses paid in Cash by Borrower and its
Subsidiaries with respect to any acquisition or disposition of a
Station permitted hereunder, plus (f) the aggregate amount of Holdings
Advances made in such Fiscal Year plus (g) 25% of the positive change
in net revenues of the Borrower and its Subsidiaries from the Fiscal
Year immediately preceding the Fiscal Year with respect to which any
determination is made to the Fiscal Year with respect to which such
determination is made, plus (h) all Cash invested in Investments during
such Fiscal Year as permitted by subsection 7.3(v), (viii) and (ix) or
used in consummating Permitted Acquisitions. For purposes of
calculating Consolidated Excess Cash Flow with respect to assets not
owned by the Borrower and its Subsidiaries for the Fiscal Year,
Consolidated Excess Cash Flow shall be calculated as if any operations
disposed of by any Borrower and its Subsidiaries at any time during the
preceding 12-month period had not been owned by the Borrower and its
Subsidiaries for any of the full preceding 12-month period.
"CONSOLIDATED FIXED CHARGES" shall mean for the Borrower and
its Subsidiaries on a consolidated basis, for the four (4) Fiscal
Quarter period ending on the date of determination, the sum of (a)
Consolidated Cash Interest Expense paid during such period, plus (b)
scheduled principal payments of the Term Loans or Revolving Loan
Commitment paid as a result of reduction requirements under subsection
2.4A hereof during such period plus (c) agency fees and commitment fees
paid during such period, plus (d) Consolidated Capital Expenditures of
the Borrower and its Subsidiaries paid during such period, plus (e)
taxes paid in Cash and Restricted Junior Payments made with respect to
taxes resulting from the business and activities of Borrower and its
Subsidiaries during such period (provided that subsection (e) of this
definition shall NOT include
6
Restricted Junior Payments made by the Borrower permitted by subsection
7.5(i) and (ii) hereof or in respect of capital gains taxes) plus (f)
LMA Payments.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, total
interest expense (including that portion attributable to Capital Leases
in accordance with GAAP and capitalized interest) of Borrower and its
Subsidiaries on a consolidated basis with respect to all outstanding
Indebtedness of Borrower and its Subsidiaries, whether paid in Cash or
accrued, including, without limitation, all commissions, discounts and
other fees and charges owed with respect to letters of credit and
bankers' acceptance financing and net costs under Interest Rate
Agreements, but excluding, however, any amounts referred to in
subsection 2.3B payable to Administrative Agent and Lenders on or
before the Closing Date, all of the foregoing determined on a
consolidated basis for Borrower and its Subsidiaries in conformity with
GAAP.
"CONSOLIDATED OPERATING CASH FLOW" shall mean for Borrower and
its Subsidiaries on a consolidated basis and determined in accordance
with GAAP, for the four (4) Fiscal Quarter period ending on the date of
determination, (a) net income or loss for such period, excluding (i)
extraordinary gains and losses, if any, for such period and (ii) the
write-up or write-down of assets for such period, plus (b) to the
extent deducted in determining net income for such period, the sum of
(i) depreciation expense for such period, (ii) amortization expense for
such period, (iii) Consolidated Interest Expense during such period,
(iv) taxes expensed during such period whether current or deferred, (v)
other deferred or non-cash expenses relating to trade for such period,
(vi) LMA Payments for such period with respect to any Permitted
Acquisition during such period, (vii) fees and expenses paid by the
Borrower and its Subsidiaries hereunder or under the other Loan
Documents for the effectiveness of such agreements and the other
Closing Date transactions and in connection with the initial public
offering of Holdings in February of 2000, (viii) all legal fees and
expenses incurred by Borrower and its Subsidiaries with respect to any
acquisition or disposition of a Station permitted hereunder as a
"like-kind" exchange under Section 1031 of the Internal Revenue Code,
(ix) legal fees incurred by Borrower and its Subsidiaries with respect
to any acquisition of a Station permitted hereunder, to the extent such
legal fees do not exceed $50,000 for any such acquisition or series of
related acquisitions, and (x) up to $500,000 in the aggregate during
the term of this Agreement of legal fees associated with the litigation
between WQAM-AM and the Florida Marlins Inc., MINUS (c) to the extent
included in determining net income for such period, non-cash revenue
relating to trade. For purposes of calculating Consolidated Operating
Cash Flow with respect to assets not owned by the Borrower and its
Subsidiaries for the full preceding 12-month period, Consolidated
Operating Cash Flow shall be calculated as if (A) any operations
acquired by Borrower and its Subsidiaries at any time during the
preceding 12-month period had been in fact owned by Borrower and its
Subsidiaries for the full preceding 12-month period, and (B) any
operations disposed of by Borrower and its Subsidiaries at any time
during the preceding 12-month period had not been owned by Borrower and
its Subsidiaries for any of the full preceding 12-month period.
"CONSOLIDATED TOTAL DEBT" means, as at any date of
determination, the sum of (i) the aggregate stated balance sheet amount
of all Indebtedness of Borrower and its
7
Subsidiaries (including, without limitation, the Loans but EXCLUDING
(a) the $100,000 promissory note issued in connection with the
acquisition of Georgia Stations WRDW(AM), WAWX(AM) and WRFN(AM) and (b)
Indebtedness outstanding in accordance with subsection 7.1(v)), (ii)
Letter of Credit Usage and (iii) the sum of (x) the maximum aggregate
amount which is or at any time thereafter may become available for
drawing under all letters of credit (other than Letters of Credit)
issued for the account of Borrower or any of its Subsidiaries then
outstanding plus (y) the aggregate amount of all drawings under any
such letter of credit honored by the issuer of any such letter of
credit and not theretofore reimbursed by Borrower or any of its
Subsidiaries.
"CONSOLIDATED TOTAL DEBT RATIO" means, as at any date of
determination, the ratio of Consolidated Total Debt to Consolidated
Operating Cash Flow as calculated as of the most recent Fiscal Quarter
end pursuant to subsection 7.6C.
"CONTINGENT OBLIGATION", as applied to any Person, means any
direct or indirect liability, contingent or otherwise, of that Person
(i) with respect to any Indebtedness, lease, dividend or other
obligation of another if the primary purpose or intent thereof by the
Person incurring the Contingent Obligation is to provide assurance to
the obligee of such obligation of another that such obligation of
another will be paid or discharged, or that any agreements relating
thereto will be complied with, or that the holders of such obligation
will be protected (in whole or in part) against loss in respect
thereof, (ii) with respect to any letter of credit issued for the
account of that Person or as to which that Person is otherwise liable
for reimbursement of drawings, or (iii) under Interest Rate Agreements.
Contingent Obligations shall include, without limitation, (a) the
direct or indirect guaranty, endorsement (otherwise than for collection
or deposit in the ordinary course of business), co-making, discounting
with recourse or sale with recourse by such Person of the obligation of
another, (b) the obligation to make take-or-pay or similar payments if
required regardless of non-performance by any other party or parties to
an agreement, and (c) any liability of such Person for the obligation
of another through any agreement (contingent or otherwise) (X) to
purchase, repurchase or otherwise acquire such obligation or any
security therefor, or to provide funds for the payment or discharge of
such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise) or (Y) to maintain the
solvency or any balance sheet item, level of income or financial
condition of another if, in the case of any agreement described under
subclauses (X) or (Y) of this sentence, the primary purpose or intent
thereof is as described in the preceding sentence. The amount of any
Contingent Obligation shall be equal to the amount of the obligation so
guaranteed or otherwise supported or, if less, the amount to which such
Contingent Obligation is specifically limited.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any Security issued by that Person or of any material
indenture, mortgage, deed of trust, contract, undertaking, agreement or
other instrument to which that Person is a party or by which it or any
of its properties is bound or to which it or any of its properties is
subject.
"CREDIT PARTY" means Borrower and each of its Subsidiaries and
"CREDIT PARTIES" means such Persons collectively.
8
"CREDIT PARTIES SECURITY AGREEMENT" means the Security
Agreement to be executed and delivered by Borrower and its
Subsidiaries, substantially in the form of EXHIBIT IX-A annexed hereto.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or
like account with a bank, savings and loan association, credit union or
like organization, other than an account evidenced by a negotiable
certificate of deposit.
"DOCUMENTATION AGENT" has the meaning assigned to that term in
the introduction to this Agreement and also means and includes any
successor Documentation Agent appointed pursuant to subsection 9.5.
"DOLLARS" and the sign "$" mean the lawful money of the United
States of America.
"ELIGIBLE ASSIGNEE" means an "accredited investor" (as defined
in Regulation D under the Securities Act) including without limitation
(A) (i) a commercial bank organized under the laws of the United States
or any state thereof; (ii) a savings and loan association or savings
bank organized under the laws of the United States or any state
thereof; (iii) a commercial bank organized under the laws of any other
country or a political subdivision thereof; PROVIDED that (x) such bank
is acting through a branch or agency located in the United States or
(y) such bank is organized under the laws of a country that is a member
of the Organization for Economic Cooperation and Development or a
political subdivision of such country; and (iv) any other accredited
investor which extends credit or buys loans as one of its businesses
including, but not limited to, insurance companies, mutual funds and
lease financing companies, in each case (under clauses (i) through (iv)
above) that is reasonably acceptable to Administrative Agent and the
Borrower; and (B) any Lender and any Affiliate of any Lender that is
reasonably acceptable to Administrative Agent and Borrower (unless such
assignment to such Affiliate is required or advisable to comply with
any applicable law or governmental regulation binding upon such
Lender); PROVIDED that no Affiliate of Borrower shall be an Eligible
Assignee; PROVIDED FURTHER that in the case of the forgoing clauses (A)
and (B) the consent of Borrower to any Eligible Assignee shall not be
required at any time that an Event of Default has occurred and is
continuing.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as
defined in Section 3(3) of ERISA which is, or was at any time,
maintained or contributed to by Borrower or any of its ERISA
Affiliates.
"ENVIRONMENTAL CLAIM" means any written allegation, notice of
violation, claim, demand, abatement order or other order or direction
(conditional or otherwise) by any governmental authority or any Person
for any damage, including, without limitation, personal injury
(including sickness, disease or death), tangible or intangible property
damage, contribution, indemnity, indirect or consequential damages,
damage to the environment, nuisance, pollution, contamination or other
adverse effects on the environment, or for fines, penalties or
restrictions, in each case relating to, resulting from
9
or in connection with Hazardous Materials and relating to Borrower, any
of its Subsidiaries, any of their respective Affiliates or any
Facility.
"ENVIRONMENTAL LAWS" means all statutes, ordinances, orders,
rules, regulations, plans, policies or decrees and the like relating to
(i) environmental matters, including, without limitation, those
relating to fines, injunctions, penalties, damages, contribution, cost
recovery compensation, losses or injuries resulting from the Release or
threatened Release of Hazardous Materials, (ii) the generation, use,
storage, transportation or disposal of Hazardous Materials, or (iii)
occupational safety and health, industrial hygiene, land use or the
protection of human, plant or animal health or welfare, in any manner
applicable to any Credit Party, its Subsidiaries or any of their
respective properties, including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act (42 ▇.▇.▇.▇▇.
9601 ET SEQ.), the Hazardous Materials Transportation Act (49 ▇.▇.▇.▇▇.
1801 ET SEQ.), the Resource Conservation and Recovery Act (42 ▇.▇.▇.▇▇.
6901 ET SEQ.), the Federal Water Pollution Control Act ( 33 ▇.▇.▇.▇▇.
1251 ET SEQ.), the Clean Air Act (42 U.S.C. ss. 7401 ET SEQ.), the
Toxic Substances Control Act (15 ▇.▇.▇.▇▇. 2601 ET SEQ.), the Federal
Insecticide, Fungicide and Rodenticide Act (7 U.S.C.ss.136 ET SEQ.),
the Occupational Safety and Health Act (29 ▇.▇.▇.▇▇. 651 ET SEQ.) and
the Emergency Planning and Community Right-to-Know Act (42 ▇.▇.▇.▇▇.
11001 ET SEQ.), each as amended or supplemented, and any analogous
future or present local, state and federal statutes and regulations
promulgated pursuant thereto, each as in effect as of the date of
determination.
"EQUITY SECURITIES" means any stock, shares, partnership
interests, limited liability company interests, voting trust
certificates, certificates of interest, options, warrants, or any
certificates of interest, shares or participations in temporary or
interim certificates for the purchase or acquisition of, or any right
to subscribe to, purchase or acquire, any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"ERISA AFFILIATE", as applied to any Person, means (i) any
corporation which is, or was at any time, a member of a controlled
group of corporations within the meaning of Section 414(b) of the
Internal Revenue Code of which that Person is, or was at any time, a
member; (ii) any trade or business (whether or not incorporated) which
is, or was at any time, a member of a group of trades or businesses
under common control within the meaning of Section 414(c) of the
Internal Revenue Code of which that Person is, or was at any time, a
member; and (iii) any member of an affiliated service group within the
meaning of Section 414(m) or (o) of the Internal Revenue Code of which
that Person, any corporation described in clause (i) above or any trade
or business described in clause (ii) above is, or was at any time, a
member.
"ERISA EVENT" means (i) a "reportable event" within the
meaning of Section 4043 of ERISA and the regulations issued thereunder
with respect to any Pension Plan (excluding those for which the
provision for 30-day notice to the PBGC has been waived by regulation);
(ii) the failure to meet the minimum funding standard of Section 412 of
10
the Internal Revenue Code with respect to any Pension Plan (whether or
not waived in accordance with Section 412(d) of the Internal Revenue
Code) or the failure to make by its due date a required installment
under Section 412(m) of the Internal Revenue Code with respect to any
Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any
Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of
intent to terminate such plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the withdrawal by any Credit Party or
any of its ERISA Affiliates from any Pension Plan with two or more
contributing sponsors or the termination of any such Pension Plan
resulting in liability pursuant to Sections 4063 or 4064 of ERISA; (v)
the institution by the PBGC of proceedings to terminate any Pension
Plan, or the occurrence of any event or condition which might
constitute grounds under ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan; (vi) the
imposition of liability on any Credit Party or any of its ERISA
Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of
the application of Section 4212(c) of ERISA; (vii) the withdrawal by
any Credit Party or any of its ERISA Affiliates in a complete or
partial withdrawal (within the meaning of Sections 4203 and 4205 of
ERISA) from any Multiemployer Plan if there is any potential liability
therefor, or the receipt by any Credit Party or any of its ERISA
Affiliates of notice from any Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA,
or that it intends to terminate or has terminated under Section 4041A
or 4042 of ERISA; (viii) the occurrence of an act or omission which
could give rise to the imposition on any Credit Party or any of its
ERISA Affiliates of fines, penalties, taxes or related charges under
Chapter 43 of the Internal Revenue Code or under Section 409 or 502(c),
(i) or (l) or 4071 of ERISA in respect of any Employee Benefit Plan;
(ix) the assertion of a material claim (other than routine claims for
benefits) against any Employee Benefit Plan other than a Multiemployer
Plan or the assets thereof, or against any Credit Party or any of its
ERISA Affiliates in connection with any such Employee Benefit Plan; (x)
receipt from the Internal Revenue Service of notice of the failure of
any Pension Plan (or any other Employee Benefit Plan intended to be
qualified under Section 401(a) of the Internal Revenue Code) to qualify
under Section 401(a) of the Internal Revenue Code, or the failure of
any trust forming part of any Pension Plan to qualify for exemption
from taxation under Section 501(a) of the Internal Revenue Code; or
(xi) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n)
of the Internal Revenue Code or pursuant to ERISA with respect to any
Pension Plan.
"EVENT OF DEFAULT" means each of the events set forth in
Section 8.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"EXISTING CREDIT AGREEMENT" means that certain Credit
Agreement dated as of March 30, 1998 by and among ▇▇▇▇▇▇▇ ▇▇
Acquisition Corp., ▇▇▇▇▇▇▇ Broadcasting of Eastern North Carolina,
Inc., ▇▇▇▇▇▇▇ Broadcasting of Eastern Pennsylvania, Inc., ▇▇▇▇▇▇▇
Broadcasting of Arkansas, Inc., W&B Media, Inc., ▇▇▇▇▇▇▇ Broadcasting
of Southwest Florida, Inc., ▇▇▇▇▇▇▇ Broadcasting of Coastal Carolina,
Inc., ▇▇▇▇▇▇▇-▇▇▇▇ Acquisition Partnership, and ▇▇▇▇▇▇▇ Radio, Inc.,
the financial institutions party thereto
11
as of the Closing Date, and Bank of Montreal, Chicago Branch, as agent,
as amended August 11, 1999, December 30 1999 and February 8, 2000.
"FACILITIES" means any and all real property (including,
without limitation, all buildings, fixtures or other improvements
located thereon) now, hereafter or heretofore owned, leased, operated
or used by any Credit Party or any of its predecessors or Affiliates.
"FCC" means the Federal Communications Commission and any
successor governmental agency performing functions similar to those
performed by the Federal Communications Commission on the date hereof.
"FCC LICENSE" means any of the material licenses, permits or
other authorizations issued by the FCC relating to the Stations.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a
fluctuating interest rate equal for each day during such period to the
rates on overnight Federal funds transactions quoted by Bank of
Montreal.
"FINAL ORDER" means, as of any date of determination with
respect to any written action or consent by the FCC, such written
action or consent which shall have been obtained and (i) which shall
not have been reversed, stayed, enjoined, annulled or suspended and
(ii) for which the time for filing a request for administrative or
judicial relief or for instituting administrative review thereof SUA
SPONTE, shall have expired without any such filing having been made or
notice of such review having been issued, or, in the event of such
filing or review SUA SPONTE, such filing or review SUA SPONTE shall
have been disposed of favorably to confirmation of such written action
or the grant of such consent and the time for seeking further relief
with respect thereto shall have expired without any request for such
further relief having been filed.
"FINANCIAL PLAN" has the meaning assigned to that term in
subsection 6.1(x) hereof;
"FIRST PRIORITY" means, with respect to any Lien purported to
be created in any Collateral pursuant to any Security Document, that
(i) such Lien has priority over any other Lien on such Collateral
(other than Permitted Liens) and (ii) such Lien is the only Lien other
than Permitted Liens to which such Collateral is subject.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of Borrower and its
Subsidiaries maintained in accordance with subsection 7.13.
"FUNDING AND PAYMENT OFFICE" means the office of
Administrative Agent located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"FUNDING DATE" means the date of the funding of a Loan.
12
"GAAP" means generally accepted accounting principles set
forth in opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entity as may be
approved by a significant segment of the accounting profession, in each
case as the same are applicable to the circumstances as of the date of
determination.
"GOVERNMENTAL ACTS" has the meaning assigned to that term in
subsection 3.5A hereof.
"GOVERNMENTAL AUTHORIZATION" means any permit, license,
authorization, plan, directive, consent order or consent decree of or
from any federal, state or local governmental authority, agency or
court.
"HAZARDOUS MATERIALS" means (i) any chemical, material or
substance at any time defined as or included in the definition of
"hazardous substances", "hazardous wastes", "hazardous materials",
"extremely hazardous waste", "restricted hazardous waste", "infectious
waste", "toxic substances" or any other formulations intended to
define, list or classify substances by reason of deleterious properties
such as ignitability, corrosivity, reactivity, carcinogenicity,
toxicity, reproductive toxicity, "TCLP toxicity" or "EP toxicity" or
words of similar import under any applicable Environmental Laws or
publications promulgated pursuant thereto; (ii) any oil, petroleum,
petroleum fraction or petroleum derived substance; (iii) any drilling
fluids, produced waters and other wastes associated with the
exploration, development or production of crude oil, natural gas or
geothermal resources; (iv) any flammable substances or explosives; (v)
any radioactive materials; (vi) asbestos in any form; (vii) urea
formaldehyde foam insulation; (viii) electrical equipment which
contains any oil or dielectric fluid containing levels of
polychlorinated biphenyls in excess of fifty parts per million; (ix)
pesticides; and (x) any other chemical, material or substance, exposure
to which is prohibited, limited or regulated by any governmental
authority or which may or could pose a hazard to the health and safety
of the owners, occupants or any Persons in the vicinity of the
Facilities.
"HOLDINGS" means ▇▇▇▇▇▇▇ Broadcast Group, Inc.
"HOLDINGS ADVANCE" has the meaning set forth in subsection
7.5.
"HOLDINGS PLEDGE AGREEMENT" means the Holdings Pledge
Agreement executed and delivered by Holdings on the Closing Date,
substantially in the form of EXHIBIT IX-B annexed hereto, as such
Holdings Pledge Agreement may thereafter be amended, restated,
supplemented or otherwise modified from time to time.
"INDEBTEDNESS", as applied to any Person, means (i) all
indebtedness for borrowed money, (ii) that portion of obligations with
respect to Capital Leases that is properly classified as a liability on
a balance sheet in conformity with GAAP, (iii) notes payable and drafts
accepted representing extensions of credit whether or not representing
obligations for borrowed money, (iv) any obligation owed for all or any
part of the deferred purchase price of property or services (excluding
any such obligations incurred
13
under ERISA), which purchase price is (a) due more than six months from
the date of incurrence of the obligation in respect thereof or (b)
evidenced by a note or similar written instrument, (v) all indebtedness
secured by any Lien on any property or asset owned or held by that
Person regardless of whether the indebtedness secured thereby shall
have been assumed by that Person or is nonrecourse to the credit of
that Person and (vi) payment obligations under non-compete agreements
and all other payment obligations that would be properly classified as
a liability on a balance sheet conforming with GAAP (other than trade
payables, accrued expenses and other deferred expenses not 120 days
past due); PROVIDED that obligations under Interest Rate Agreements
constitute Contingent Obligations and not Indebtedness; PROVIDED
FURTHER that Indebtedness shall not include obligations in respect of
Operating Leases that would not be properly classified as a liability
on a balance sheet in conformity with GAAP.
"INDEMNIFIED LIABILITIES" has the meaning assigned to that
term in subsection 10.3.
"INDEMNITEE" has the meaning assigned to that term in
subsection 10.3.
"INITIAL TERM LOANS" means Term Loans to be made on the
Closing Date in accordance with Section 2.1A(i) in an aggregate
principal amount of $102,236,261.54.
"INTEREST PAYMENT DATE" means (i) with respect to any Base
Rate Loan, each March 31, June 30, September 30 and December 31 of each
year, commencing on the first such date to occur after the Closing
Date, and (ii) with respect to any LIBOR Rate Loan, the last day of
each Interest Period applicable to such Loan; PROVIDED that in the case
of each Interest Period of longer than three months "Interest Payment
Date" shall also include each date that is three months, or an integral
multiple thereof, after the commencement of such Interest Period.
"INTEREST PERIOD" has the meaning assigned to that term in
subsection 2.2B.
"INTEREST RATE AGREEMENT" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement
or other similar agreement or arrangement designed to protect Borrower
or any of its Subsidiaries against fluctuations in interest rates.
"INTEREST RATE DETERMINATION DATE" means, with respect to any
Interest Period, the second Business Day prior to the first day of such
Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended to the date hereof and from time to time hereafter.
"INVESTMENT" means (i) any direct or indirect purchase or
other acquisition by any Credit Party of, or of a beneficial interest
in, any Securities of any other Person (other than a Person that, prior
to such purchase or acquisition, was a wholly-owned Subsidiary of such
Credit Party), or (ii) any direct or indirect loan, advance (other than
advances to employees for moving, entertainment and travel expenses,
drawing accounts and similar expenditures in the ordinary course of
business) or capital contribution by any Credit
14
Party to any other Person other than Borrower or a Subsidiary of such
Credit Party, including all indebtedness and accounts receivable from
that other Person that are not current assets or did not arise from
sales to that other Person in the ordinary course of business. The
amount of any Investment shall be the original cost of such Investment
plus the cost of all additions thereto, without any adjustments for
increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment.
"ISSUING LENDER" means, with respect to any Letter of Credit,
the Administrative Agent or the Lender that agrees or is otherwise
obligated to issue such Letter of Credit, determined as provided in
subsection 3.1B(ii).
"JOINT VENTURE" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal
form; PROVIDED that in no event shall any Subsidiary of any Person be
considered to be a Joint Venture to which such Person is a party.
"LENDER" and "LENDERS" means the persons identified as
"Lenders" and listed on the signature pages of this Agreement, together
with their successors and permitted assigns pursuant to subsection
10.1; PROVIDED that the term "Lenders", when used in the context of a
particular Commitment, shall mean Lenders having that Commitment.
"LETTER OF CREDIT" or "LETTERS OF CREDIT" means the standby
letters of credit issued or to be issued by Issuing Lenders for the
account of Borrower pursuant to subsection 3.1 for any lawful purpose;
PROVIDED that standby Letters of Credit may not be issued for the
purpose of supporting (a) trade payables or (b) any Indebtedness
constituting "antecedent debt" (as that term is used in Section 547 of
the Bankruptcy Code).
"LETTER OF CREDIT USAGE" means, as at any date of
determination, the sum of (i) the maximum aggregate amount which is or
at any time thereafter may become available for drawing under all
Letters of Credit then outstanding PLUS (ii) the aggregate amount of
all drawings under Letters of Credit honored by Issuing Lenders and not
theretofore reimbursed by Borrower (whether any such reimbursement was
made out of the proceeds of Revolving Loans pursuant to subsection 3.3B
or otherwise).
"LIBOR RATE LOANS" means Loans bearing interest at rates
determined by reference to the Adjusted LIBOR Rate as provided in
subsection 2.2A.
"LICENSE SUB" means any special purpose Subsidiary of Borrower
which is created or acquired to hold the FCC Licenses and "LICENSE
SUBS" means all such License Subs.
"LIEN" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional
sale or other title retention agreement, any lease in the nature
thereof, and any agreement to give any security interest) and any
option, trust or other preferential arrangement having the practical
effect of any of the foregoing.
15
"LIKE-KIND EXCHANGE" has the meaning assigned to that term in
subsection 2.4B(iii)(a)(2).
"LMA" means any joint sales agreement, advertising sales
agreement, time brokerage agreement, local marketing agreement or
management services agreement or similar arrangement with respect to
the management or marketing of any radio station (including, without
limitation, the Stations) or any other broadcast properties to which
Borrower or any of its Subsidiaries is a party in effect at such time;
PROVIDED that LMA shall not include any of the foregoing with respect
to any AM Station for which Borrower or any of its Subsidiaries is the
FCC Licensee.
"LMA PAYMENTS" means, for any period, all costs, fees,
expenses or other payments made by any Credit Party pursuant to the
LMAs for the account of the holder of the FCC licenses (or any
Affiliate thereof) for the broadcast station subject to such LMA.
"LOAN" or "LOANS" means one or more of the Term Loans or
Revolving Loans or any combination thereof.
"LOAN DOCUMENTS" means (i) this Agreement, (ii) the Notes,
(iii) the Letters of Credit (and any applications for, or reimbursement
agreements or other documents or certificates executed by Borrower in
favor of an Issuing Lender relating to, the Letters of Credit), (iv)
the Subsidiary Guaranty, (v) the Security Documents, (vi) the BFT
Consent Letter and (vi) any Interest Rate Agreements entered into by
Borrower with any Person that is or was a Lender or an Affiliate of a
Lender at the time of entry into such agreement.
"MANAGING AGENT" has the meaning assigned to that term in the
introduction to this Agreement and also means and includes any
successor Managing Agent appointed pursuant to subsection 9.5.
"MARGIN STOCK" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve System as
in effect from time to time.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse effect
upon the business, operations, properties or condition (financial or
otherwise) of Borrower and its Subsidiaries (taken as a whole) or (ii)
the impairment of any material portion of the Collateral or the ability
of the Obligors to perform in any material respect, or of
Administrative Agent or Lenders to enforce, the Obligations.
"MULTIEMPLOYER PLAN" means a "multiemployer plan", as defined
in Section 3(37) of ERISA, to which Borrower or any of its ERISA
Affiliates is contributing, or ever has contributed, or to which
Borrower or any of its ERISA Affiliates has, or ever has had, an
obligation to contribute.
"NET CASH PROCEEDS" means, with respect to any Asset Sale,
Cash Proceeds of such Asset Sale net of bona fide direct costs of sale
including, without limitation, (i) income and other taxes reasonably
estimated to be actually payable as a result of such
16
Asset Sale, (ii) payment of the outstanding principal amount of,
premium or penalty, if any, and interest on any Indebtedness permitted
hereunder (other than the Loans) that is secured by a Lien on the stock
or assets in question and that is required to be repaid under the terms
thereof as a result of such Asset Sale, (iii) brokerage, legal,
accounting and other fees and expenses; PROVIDED that such fees shall
be deducted from Cash Proceeds only to the extent that they are
reasonable in amount in accordance with industry standards and (iv)
adjustments to the purchase price or pro rations of costs pursuant to
the terms of such Asset Sale.
"NET SECURITIES PROCEEDS" shall have the meaning assigned to
that term in subsection 2.4B(iii)(b).
"NOTE" or "NOTES" means one or more of the Term Notes or
Revolving Notes or any combination thereof.
"NOTICE OF BORROWING" means a notice substantially in the form
of EXHIBIT I annexed hereto delivered by Borrower to Administrative
Agent pursuant to subsection 2.1B with respect to a proposed borrowing.
"NOTICE OF CONVERSION/CONTINUATION" means a notice
substantially in the form of EXHIBIT II annexed hereto delivered by
Borrower to Administrative Agent pursuant to subsection 2.2D with
respect to a proposed conversion or continuation of the applicable
basis for determining the interest rate with respect to the Loans
specified therein.
"NOTICE OF ISSUANCE OF LETTER OF CREDIT" means a notice
substantially in the form of EXHIBIT III annexed hereto delivered by
Borrower to Administrative Agent pursuant to subsection 3.1B(i) with
respect to the proposed issuance of a Letter of Credit.
"OBLIGATIONS" means all obligations of every nature of the
Obligors from time to time owed to Agents, Lenders or any of them (or
any Person party to Interest Rate Agreements with any Credit Party and
at the time of entry into such agreements such Person is a Lender or an
Affiliate of a Lender) under the Loan Documents, whether for principal,
interest, reimbursement of amounts drawn under Letters of Credit, fees,
expenses, indemnification or otherwise.
"OBLIGOR" means Holdings, Borrower and each of Borrower's
Subsidiaries and "OBLIGORS" means such Persons collectively.
"OFFICERS' CERTIFICATE" means, as applied to any corporation,
a certificate executed on behalf of such corporation by any of its
chairman of the board (if an officer), its president, its chief
operating officer or one of its vice presidents or its chief financial
officer or its treasurer, and with respect to any limited liability
company, partnership or limited partnership, a certificate executed on
behalf of such limited liability company, partnership or limited
partnership by its managing member or general partner, as the case may
be.
"OPERATING LEASE" means, as applied to any Person, any lease
(including, without limitation, leases that may be terminated by the
lessee at any time) of any
17
property (whether real, personal or mixed) that is not a Capital Lease
other than (i) any such lease under which that Person is the lessor and
(ii) any LMA.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor thereto).
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal
Revenue Code or Section 302 of ERISA.
"PERMITTED ACQUISITION" has the meaning set forth in
subsection 7.7(iv).
"PERMITTED ACQUISITION CLOSING DATE" means, with respect to
any Permitted Acquisition, the date upon which each of the conditions
to consummation of such acquisition (including, without limitation,
funding any Loans to consummate such Permitted Acquisition) set forth
in subsections 7.7(iv), 4.2 and 4.3 is satisfied.
"PERMITTED ACQUISITION DOCUMENTS" means, the material
agreements pursuant to which any other Permitted Acquisition is
consummated.
"PERMITTED ENCUMBRANCES" means the following types of Liens
(other than any such Lien imposed pursuant to Section 401(a)(29) or
412(n) of the Internal Revenue Code or by ERISA):
(i) Liens for taxes, assessments or governmental
charges or claims the payment of which is not, at the time,
required by subsection 6.3;
(ii) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics and materialmen and other
Liens imposed by law incurred in the ordinary course of
business for sums not more than 60 days past due or being
contested in good faith, if such reserve or other appropriate
provision, if any, as shall be required by GAAP shall have
been made therefor;
(iii) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or
to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts,
trade contracts, performance and return-of-money bonds and
other similar obligations (exclusive of obligations for the
payment of borrowed money);
(iv) any attachment or judgment Lien not constituting
an Event of Default under subsection 8.8;
(v) leases or subleases granted to others not
interfering in any material respect with the ordinary conduct
of the business of any Credit Party or any of its
Subsidiaries;
18
(vi) easements, rights-of-way, restrictions, minor
defects, encroachments or irregularities in title and other
similar charges or encumbrances not interfering in any
material respect with the ordinary conduct of the business of
any Credit Party or any of its Subsidiaries;
(vii) any (a) interest or title of a lessor or
sublessor under any lease, (b) restriction or encumbrance that
the interest or title of such lessor or sublessor may be
subject to, or (c) subordination of the interest of the lessee
or sublessee under such lease to any restriction or
encumbrance referred to in the preceding clause (b);
(viii) Liens arising from filing UCC financing
statements relating solely to leases permitted by this
Agreement;
(ix) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of
customs duties in connection with the importation of goods;
and
(x) Liens of a collecting bank under Section 4-208 of
the Uniform Commercial Code as in effect in the relevant
jurisdiction.
"PERMITTED LIENS" means Liens permitted pursuant to subsection
7.2A.
"PERMITTED SALE NOTES" means promissory notes issued pursuant
to asset dispositions permitted under subsections 7.7(v) and 7.7(vi);
PROVIDED that the aggregate principal amount of such notes does not
exceed (x) $5,000,000 for all such dispositions and (y) the greater of
(a) $500,000 or (b) 20% of the sale price for any single disposition.
"PERMITTED TOWER TRANSFERS" has the meaning set forth in
subsection 7.7(viii).
"PERSON" means and includes natural persons, corporations,
limited partnerships, general partnerships, joint stock companies,
Joint Ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts or other organizations, whether
or not legal entities, and governments and agencies and political
subdivisions thereof.
"POTENTIAL EVENT OF DEFAULT" means a condition or event that,
after notice or lapse of time or both, would constitute an Event of
Default.
"PRIME RATE" means the rate that Bank of Montreal announces
from time to time as its prime lending rate, as in effect from time to
time in the United States. The Prime Rate is a reference rate and does
not necessarily represent the lowest or best rate actually charged to
any customer in the United States or any other country. Bank of
Montreal or any other Lender may make commercial loans or other loans
at rates of interest at, above or below the Prime Rate.
"PRO RATA SHARE" means (i) with respect to all payments,
computations and other matters relating to the Term Loan Commitment or
the Term Loan of any Lender, the percentage obtained by DIVIDING (x)
the Term Loan Exposure of that Lender BY (y) the
19
aggregate Term Loan Exposure of all Lenders, (ii) with respect to all
payments, computations and other matters relating to the Revolving Loan
Commitment or the Revolving Loans of any Lender or any Letters of
Credit issued or participations therein purchased by any Lender, the
percentage obtained by DIVIDING (x) the Revolving Loan Exposure of that
Lender BY (y) the aggregate Revolving Loan Exposure of all Lenders, and
(iii) for all other purposes with respect to each Lender, the
percentage obtained by DIVIDING (x) the sum of the Term Loan Exposure
of that Lender PLUS the Revolving Loan Exposure of that Lender BY (y)
the sum of the aggregate Term Loan Exposure of all Lenders PLUS the
aggregate Revolving Loan Exposure of all Lenders, in any such case as
the applicable percentage may be adjusted by assignments permitted
pursuant to subsection 10.1. The initial Pro Rata Share of each Lender
for purposes of each of clauses (i), (ii) and (iii) of the preceding
sentence is set forth opposite the name of that Lender in SCHEDULE 2.1
annexed hereto.
"REGULATION D" means Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"REIMBURSEMENT DATE" has the meaning assigned to that term in
subsection 3.3B.
"RELEASE" means any release, spill, emission, leaking,
pumping, pouring, injection, escaping, deposit, disposal, discharge,
dispersal, dumping, leaching or migration of Hazardous Materials into
the indoor or outdoor environment (including, without limitation, the
abandonment or disposal of any barrels, containers or other closed
receptacles containing any Hazardous Materials), or into or out of any
Facility, including the movement of any Hazardous Material through the
air, soil, surface water, groundwater or property.
"RELINQUISHED STATION" has the meaning assigned to that term
in subsection 2.4B(iii)(a)(2).
"REQUISITE LENDERS" means Lenders having or holding more than
50% of the sum of the aggregate Term Loan Exposure of all Lenders plus
the aggregate Revolving Loan Exposure of all Lenders.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of any membership
interests of Borrower, except a dividend payable solely in membership
interests of Borrower, and (ii) any redemption, retirement, sinking
fund or similar payment, purchase or other acquisition for value,
direct or indirect, of any shares of any membership interests of
Borrower, (iii) any payment made to retire, or to obtain the surrender
of, any outstanding warrants, options or other rights to acquire shares
of any membership interests of Borrower and (iv) any payment or
prepayment of principal of, premium, if any, or interest on,
redemption, retirement, defeasance (including substance or legal
defeasance), sinking fund or similar payment with respect to any
Subordinated Indebtedness.
20
"REVOLVING LOAN COMMITMENT" means the commitment of a Lender
to make Revolving Loans to Borrower pursuant to subsection 2.1A(ii),
and "REVOLVING LOAN COMMITMENTS" means such commitments of all Lenders
in the aggregate.
"REVOLVING LOAN COMMITMENT TERMINATION DATE" means the earlier
of (i) the Stated Maturity Date or (ii) the date on which the
Commitments are terminated and the Loans and other Obligations are
declared immediately due and payable in accordance with Section 8.
"REVOLVING LOAN EXPOSURE" means, with respect to any Lender as
of any date of determination (i) prior to the termination of the
Revolving Loan Commitments, that Lender's Revolving Loan Commitment and
(ii) after the termination of the Revolving Loan Commitments, the sum
of (a) the aggregate outstanding principal amount of the Revolving
Loans of that Lender PLUS (b) in the event that Lender is an Issuing
Lender, the aggregate Letter of Credit Usage in respect of all Letters
of Credit issued by that Lender (in each case net of any participations
by other Lenders in such Letters of Credit or any unreimbursed drawings
thereunder) PLUS (c) the aggregate amount of all participations
purchased by that Lender in any outstanding Letters of Credit or any
unreimbursed drawings under any Letters of Credit.
"REVOLVING LOANS" means the Loans made by Lenders to Borrower
pursuant to subsection 2.1A(ii).
"REVOLVING NOTES" means (i) the promissory notes of Borrower
referred to in subsection 2.1D(ii) and (ii) any promissory notes issued
thereafter by Borrower pursuant to the last sentence of subsection
10.1B(i) in connection with assignments of the Revolving Loan
Commitments and Revolving Loans of any Lenders, in each case
substantially in the form of EXHIBIT V annexed hereto, as they may be
amended, restated, supplemented or otherwise modified from time to
time.
"SECURITIES" means any stock, shares, partnership interests,
membership interests, voting trust certificates, certificates of
interest or participation in any profit-sharing agreement or
arrangement, options, warrants, bonds, debentures, notes, or other
evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known
as "securities" or any certificates of interest, shares or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire, any
of the foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"SECURITY DOCUMENTS" means the Holdings Pledge Agreement, the
Credit Parties Security Agreement and all other instruments or
documents (including, without limitation, UCC-1 financing statements or
similar documents required in order to perfect the Liens created by the
Security Documents) delivered by an Obligor pursuant to this Agreement
and the other Loan Documents in order to grant to Administrative Agent
on behalf and for the ratable benefit of Lenders Liens in all of the
Equity Securities of
21
Borrower and its Subsidiaries and the personal property of each Credit
Party to the extent set forth therein.
"SELLERS" means, collectively, any of the sellers of radio
stations under a Permitted Acquisition Document.
"SOLVENT" means, with respect to any Person, that as of the
date of determination both (A) (i) the then fair saleable value of the
property of such Person is (y) greater than the total amount of
liabilities (including contingent liabilities) of such Person and (z)
not less than the amount that will be required to pay the probable
liabilities on such Person's then existing debts as they become
absolute and matured considering all financing alternatives and
potential asset sales reasonably available to such Person; (ii) such
Person's capital is not unreasonably small in relation to its business
or any contemplated or undertaken transaction; and (iii) such Person
does not intend to incur, or believe (nor should it reasonably believe)
that it will incur, debts beyond its ability to pay such debts as they
become due; and (B) such Person is "solvent" within the meaning given
that term and similar terms under applicable laws relating to
fraudulent transfers and conveyances. For purposes of this definition,
the amount of any contingent liability at any time shall be computed as
the amount that, in light of all of the facts and circumstances
existing at such time, represents the amount that can reasonably be
expected to become an actual or matured liability.
"STATED MATURITY DATE" means June 30, 2008.
"STATION" means each radio station owned and operated by
Borrower or any of its Subsidiaries, and each radio station hereafter
acquired by Borrower or any of its Subsidiaries pursuant to a Permitted
Acquisition, and "STATIONS" means all such Stations.
"SUBORDINATED DEBT DOCUMENTS" means, collectively, all
material agreements and instruments evidencing or otherwise relating to
Subordinated Indebtedness.
"SUBORDINATED INDEBTEDNESS" means, collectively, any
obligation to pay principal, interest, premiums, penalty, fees,
expenses, indemnities or any other charge under or in respect of any
other obligations of Borrower or its Subsidiaries contractually
subordinated in right of payment to the Obligations pursuant to
documentation containing maturities, amortization, covenants, remedies,
subordination provisions and other material terms in form and substance
satisfactory to Administrative Agent and Requisite Lenders.
"SUBSIDIARY" means, with respect to any Person, any
corporation, partnership, association, joint venture or other business
entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the
occurrence of any contingency) to vote in the election of the Person or
Persons (whether directors, managers, trustees or other Persons
performing similar functions) having the power to direct or cause the
direction of the management and policies thereof is at the time owned
or controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person or a combination thereof.
22
"SUBSIDIARY GUARANTY" means the Subsidiary Guaranty to be
executed and delivered by each Subsidiary of Borrower including,
without limitation, each License Sub, substantially in the form of
EXHIBIT VIII annexed hereto.
"SYNDICATION AGENT" has the meaning assigned to that term in
the introduction to this Agreement and also means and includes any
successor Syndication Agent appointed pursuant to subsection 9.5.
"TAX" or "TAXES" means any present or future tax, levy,
impost, duty, charge, fee, deduction or withholding levied, collected,
withheld or assessed; PROVIDED that "TAX ON THE OVERALL NET INCOME" of
a Person shall be construed as a reference to a tax imposed by the
jurisdiction in which that Person's principal office (and/or, in the
case of a Lender, its lending office) is located or in which that
Person is deemed to be doing business on all or part of the net income,
profits or gains of that Person (whether worldwide, or only insofar as
such income, profits or gains are considered to arise in or to relate
to a particular jurisdiction, or otherwise).
"TERM LOAN COMMITMENT" means the commitment of a Lender to
make a Term Loan to Borrower pursuant to subsection 2.1A(i), and "TERM
LOAN COMMITMENTS" means such commitments of all Lenders in the
aggregate.
"TERM LOAN COMMITMENT TERMINATION DATE" means the earliest of
(i) December 31, 2001, (ii) the date on which the Term Loans are fully
drawn hereunder or (iii) the date on which the Commitments are
terminated and the Loans and other Obligations are declared immediately
due and payable in accordance with Section 8.
"TERM LOAN EXPOSURE" means, with respect to any Lender as of
any date of determination the sum of that Lender's Term Loan Commitment
and the aggregate principal amount of the Term Loans of that Lender.
"TERM LOANS" means the Loans made by Lenders to Borrower
pursuant to subsection 2.1A(i).
"TERM NOTES" means (i) the promissory notes of Borrower issued
pursuant to subsection 2.1D(i) on the Closing Date and (ii) any
promissory notes issued by Borrower pursuant to the last sentence of
subsection 10.1B(i) in connection with assignments of the Term Loan
Commitments or Term Loans of any Lenders, in each case substantially in
the form of EXHIBIT IV annexed hereto, as they may be amended,
restated, supplemented or otherwise modified from time to time.
"TOTAL UTILIZATION OF COMMITMENTS" means the sum of (i) the
Total Utilization of Revolving Loan Commitments and (ii) the Total
Utilization of Term Loan Commitments.
"TOTAL UTILIZATION OF REVOLVING LOAN COMMITMENTS" means, as at
any date of determination, the sum of (i) the aggregate principal
amount of all outstanding Revolving Loans (other than Revolving Loans
made for the purpose of reimbursing the applicable
23
Issuing Lender for any amount drawn under any Letter of Credit but not
yet so applied) PLUS (ii) the Letter of Credit Usage.
"TOTAL UTILIZATION OF TERM LOAN COMMITMENTS" means, as at any
date of determination, the aggregate principal amount of all
outstanding Term Loans.
"TOWER SITES" means those broadcast towers (and the real
property on which such towers are located) for the Stations.
"TRANSFER FCC CONSENT" means the initial or any subsequent
written action or actions by the FCC approving any assignment of FCC
Licenses for the Stations from Borrower to the respective License Sub,
as required hereunder.
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF CALCULATIONS
UNDER AGREEMENT.
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements and other information
required to be delivered by Borrower to Lenders pursuant to clauses (i), (ii),
(iii) and (x) of subsection 6.1 shall be prepared in accordance with GAAP as in
effect at the time of such preparation (and delivered together with the
reconciliation statements provided for in subsection 6.1(iv)). Calculations in
connection with the definitions, covenants and other provisions of this
Agreement shall utilize accounting principles and policies in conformity with
those used to prepare the financial statements referred to in subsection 5.3.
1.3 OTHER DEFINITIONAL PROVISIONS.
References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Agreement unless otherwise specifically
provided. Any of the terms defined in subsection 1.1 may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference. Any reference herein or in any other Loan Document to any agreement,
document or instrument, including, without limitation, this Agreement, the
Notes, the other Loan Documents and any schedules or exhibits thereto, unless
expressly noted otherwise, shall be a reference to each such agreement, document
or instrument as the same may be amended, restated, supplemented or otherwise
modified from time to time to the extent permitted hereunder or under the
applicable Loan Document.
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 COMMITMENTS; MAKING OF LOANS; NOTES.
A. COMMITMENTS. Subject to the terms and conditions of this Agreement
and in reliance upon the representations and warranties of Borrower herein set
forth, each Lender hereby severally agrees to make the Loans described in this
subsection 2.1A.
(i) TERM LOANS. Each Lender severally agrees to lend to
Borrower from time to time during the period from the Closing Date to
but excluding the Term Loan Commitment Termination Date an aggregate
amount not exceeding its Pro Rata Share of
24
the aggregate amount of the Term Loan Commitments to be used for the
purposes identified in subsection 2.5A. The original amount of each
Lender's Term Loan Commitment is set forth opposite its name on
SCHEDULE 2.1 annexed hereto and the aggregate original amount of the
Term Loan Commitments is $150,000,000; PROVIDED that the Term Loan
Commitments of Lenders shall be adjusted to give effect to any
assignments of the Term Loan Commitments pursuant to subsection 10.1B;
and PROVIDED, FURTHER that the amount of the Term Loan Commitments
shall be permanently reduced from time to time by (y) the amount of any
Term Loans made and (z) reductions to the Term Loan Commitments made
pursuant to subsections 2.4A(i), 2.4B(ii) and 2.4B(iv). Each Lender's
Term Loan Commitment shall expire on the Term Loan Commitment
Termination Date; PROVIDED that each Lender's Term Loan Commitment
shall expire immediately and without further action on the Closing Date
if the Initial Term Loans are not made on that date. Amounts borrowed
under this subsection 2.1A and subsequently repaid or prepaid may not
be reborrowed.
(ii) REVOLVING LOANS. Each Lender severally agrees to lend to
Borrower from time to time during the period from the Closing Date to
but excluding the Revolving Loan Commitment Termination Date an
aggregate amount not exceeding its Pro Rata Share of the aggregate
amount of the Revolving Loan Commitments to be used for the purposes
identified in subsection 2.5A. The original amount of each Lender's
Revolving Loan Commitment is set forth opposite its name on SCHEDULE
2.1 annexed hereto and the aggregate original amount of the Revolving
Loan Commitments is $150,000,000; PROVIDED that the Revolving Loan
Commitments of Lenders shall be adjusted to give effect to any
assignments of the Revolving Loan Commitments pursuant to subsection
10.1B; and PROVIDED, FURTHER that the amount of the Revolving Loan
Commitments shall be reduced from time to time by the amount of any
reductions thereto made pursuant to subsections 2.4A(ii), 2.4B(ii) and
2.4B(iv). Each Lender's Revolving Loan Commitment shall expire on the
Revolving Loan Commitment Termination Date, and all Revolving Loans and
all other amounts owed hereunder with respect to the Revolving Loans
and the Revolving Loan Commitments shall be paid in full no later than
that date; PROVIDED that each Lender's Revolving Loan Commitment shall
expire immediately and without further action on the Closing Date if
the Initial Term Loans are not made on or before that date. Amounts
borrowed under this subsection 2.1A may be repaid and reborrowed to but
excluding the Revolving Loan Commitment Termination Date.
Anything contained in this Agreement to the contrary
notwithstanding, the Revolving Loans and the Revolving Loan Commitments
shall be subject to the limitation that in no event shall the Total
Utilization of Revolving Loan Commitments at any time exceed the
Revolving Loan Commitments then in effect.
B. BORROWING MECHANICS. Term Loans and Revolving Loans made on any
Funding Date (other than Revolving Loans made pursuant to subsection 3.3B for
the purpose of reimbursing an Issuing Lender for the amount of a drawing under a
Letter of Credit issued by it) shall be in an aggregate minimum amount of
$500,000; PROVIDED that Term Loans or Revolving Loans made on any Funding Date
as LIBOR Rate Loans with a particular Interest Period shall be in an aggregate
minimum amount of $500,000 and integral multiples of $100,000 in excess of that
amount. Whenever Borrower desires that Lenders make Term Loans or Revolving
Loans it
25
shall deliver to Administrative Agent a Notice of Borrowing no later than 1:00
P.M. (New York time) at least three Business Days in advance of the proposed
Funding Date (in the case of a LIBOR Rate Loan) or at least one Business Day in
advance of the proposed Funding Date (in the case of a Base Rate Loan). The
Notice of Borrowing shall specify (i) the proposed Funding Date (which shall be
a Business Day), (ii) the amount and type of Loans requested, (iii) whether such
Loans shall be Base Rate Loans or LIBOR Rate Loans, and (iv) in the case of any
Loans requested to be made as LIBOR Rate Loans, the initial Interest Period
requested therefor. Term Loans and Revolving Loans may be continued as or
converted into Base Rate Loans and LIBOR Rate Loans in the manner provided in
subsection 2.2D. In lieu of delivering the above-described Notice of Borrowing,
Borrower may give Administrative Agent telephonic notice by the required time of
any proposed borrowing under this subsection 2.1B; PROVIDED that such notice
shall be promptly confirmed in writing by delivery of a Notice of Borrowing to
Administrative Agent on or before the applicable Funding Date; PROVIDED FURTHER
that failure to give such written notice shall not affect the validity of such
telephonic notice.
Neither Administrative Agent nor any Lender shall incur any liability
to Borrower in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to borrow on behalf of Borrower or
for otherwise acting in good faith under this subsection 2.1B, and upon funding
of Loans by Lenders in accordance with this Agreement pursuant to any such
telephonic notice Borrower shall have effected Loans hereunder.
Borrower shall notify Administrative Agent prior to the funding of any
Loans in the event that any of the matters to which Borrower is required to
certify in the applicable Notice of Borrowing is no longer true and correct as
of the applicable Funding Date, and the acceptance by Borrower of the proceeds
of any Loans shall constitute a re-certification by Borrower, as of the
applicable Funding Date, as to the matters to which Borrower is required to
certify in the applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a
Notice of Borrowing for a LIBOR Rate Loan (or telephonic notice in lieu thereof)
shall be irrevocable on and after the related Interest Rate Determination Date,
and Borrower shall be bound to make a borrowing in accordance therewith.
C. DISBURSEMENT OF FUNDS. All Loans under this Agreement shall be made
by Lenders simultaneously and proportionately to their respective Pro Rata
Shares, it being understood that no Lender shall be responsible for or released
by any default by any other Lender in that other Lender's obligation to make a
Loan requested hereunder nor shall the Commitment of any Lender to make the
particular type of Loan requested be increased or decreased as a result of a
default by any other Lender in that other Lender's obligation to make a Loan
requested hereunder. Promptly after receipt by Administrative Agent of a Notice
of Borrowing pursuant to subsection 2.1B (or telephonic notice in lieu thereof),
Administrative Agent shall notify each Lender of the proposed borrowing and
details thereof. Each Lender shall make the amount of its Loan available to
Administrative Agent, in same day funds in Dollars, at the Funding and Payment
Office, not later than 12:00 Noon (New York time) on the applicable Funding
Date. Except as provided in subsection 3.3B with respect to Revolving Loans used
to reimburse any Issuing Lender for the amount of a drawing under a Letter of
Credit issued by it, upon
26
satisfaction or waiver of the conditions precedent specified in subsections 4.1
(in the case of Loans made on the Closing Date) and 4.3 (in the case of all
Loans), Administrative Agent shall make the proceeds of such Loans available to
Borrower on the applicable Funding Date by causing an amount of same day funds
in Dollars equal to the proceeds of all such Loans received by Administrative
Agent from Lenders to be credited to the account of Borrower at the Funding and
Payment Office.
Unless Administrative Agent shall have been notified by any Lender
prior to the Funding Date for any Loans that such Lender does not intend to make
available to Administrative Agent the amount of such Lender's Loan requested on
such Funding Date, Administrative Agent may assume that such Lender has made
such amount available to Administrative Agent on such Funding Date and
Administrative Agent may, in its sole discretion, but shall not be obligated to,
make available to Borrower a corresponding amount on such Funding Date. If such
corresponding amount is not in fact made available to Administrative Agent by
such Lender, Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest thereon,
for each day from such Funding Date until the date such amount is paid to
Administrative Agent, at the customary rate set by Administrative Agent for the
correction of errors among banks for three Business Days and thereafter at the
Base Rate. If such Lender does not pay such corresponding amount forthwith upon
Administrative Agent's demand therefor, Administrative Agent shall promptly
notify Borrower and Borrower shall promptly pay such corresponding amount to
Administrative Agent together with interest thereon, for each day from such
Funding Date until the date such amount is paid to Administrative Agent, at the
rate payable under this Agreement for Base Rate Loans. Nothing in this
subsection 2.1C shall be deemed to relieve any Lender from its obligation to
fulfill its Commitments hereunder or to prejudice any rights that Borrower may
have against any Lender as a result of any default by such Lender hereunder.
D. NOTES. Borrower shall execute and deliver to each Lender (or to
Administrative Agent for that Lender) on the Closing Date (i) a Term Note
substantially in the form of EXHIBIT IV annexed hereto to evidence that Lender's
Term Loan, in the principal amount of that Lender's Term Loan and with other
appropriate insertions, and (ii) a Revolving Note substantially in the form of
EXHIBIT V annexed hereto to evidence that Lender's Revolving Loans, in the
principal amount of that Lender's Revolving Loan Commitment and with other
appropriate insertions.
Administrative Agent may deem and treat the payee of any Note as the
owner thereof for all purposes hereof unless and until an assignment agreement
effecting the assignment or transfer thereof shall have been accepted by
Administrative Agent as provided in subsection 10.1B(ii). Any request, authority
or consent of any person or entity who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, assignee or transferee of that Note or of
any Note or Notes issued in exchange therefor.
2.2 INTEREST ON THE LOANS.
A. RATE OF INTEREST. Subject to the provisions of subsections 2.6 and
2.7, each Loan shall bear interest on the unpaid principal amount thereof from
the date made through maturity
27
(whether by acceleration or otherwise) at a rate determined by reference to the
Base Rate or the Adjusted LIBOR Rate, as the case may be. The applicable basis
for determining the rate of interest with respect to any Loan shall be selected
by Borrower initially at the time a Notice of Borrowing is given with respect to
such Loan pursuant to subsection 2.1B. The basis for determining the interest
rate with respect to any Loan may be changed by Borrower from time to time
pursuant to subsection 2.2D. If on any day a Loan is outstanding with respect to
which notice has not been delivered to Administrative Agent in accordance with
the terms of this Agreement specifying the applicable basis for determining the
rate of interest, then for that day that Loan shall bear interest determined by
reference to the Base Rate.
Subject to the provisions of subsections 2.2E and 2.7, the Loans shall
bear interest through maturity as follows:
(i) if a Base Rate Loan, then at the sum of the Base Rate PLUS
the Applicable Margin per annum; or
(ii) if a LIBOR Rate Loan, then at the sum of the Adjusted
LIBOR Rate PLUS the Applicable Margin per annum.
The "APPLICABLE MARGIN" for each Base Rate Loan and LIBOR Rate Loan
shall be the percentage set forth below for that type of Loan based upon the
Consolidated Total Debt Ratio as set forth and adjusted below:
========================================================= ===================== =====================
APPLICABLE MARGIN
-----------------
CONSOLIDATED BASE LIBOR
TOTAL DEBT RATIO RATE LOAN RATE LOAN
========================================================= ===================== =====================
Greater than or equal to 6.50:1.00 1.250% 2.500%
--------------------------------------------------------- --------------------- ---------------------
Greater than or equal to 6.00:1.00 but less than
6.50:1.00 1.000% 2.250%
--------------------------------------------------------- --------------------- ---------------------
Greater than or equal to 5.50:1.00 but less than
6.00:1.00 0.750% 2.000%
--------------------------------------------------------- --------------------- ---------------------
Greater than or equal to 5.00:1.00 but less than
5.50:1.00: 0.500% 1.750%
--------------------------------------------------------- --------------------- ---------------------
Greater than or equal to 4.50:1.00 but less than
5.00:1.00 0.375% 1.625%
--------------------------------------------------------- --------------------- ---------------------
Greater than or equal to 4.00:1.00 but less than
4.50:1.00 0.250% 1.500%
--------------------------------------------------------- --------------------- ---------------------
Greater than or equal to 3.50:1.00 but less than
4.00:1.00 0.000% 1.250%
--------------------------------------------------------- --------------------- ---------------------
Less than 3.50:1.00 0.000% 1.000%
========================================================= ===================== =====================
28
The Applicable Margin shall be adjusted, to the extent
required, three Business Days after the date of delivery of each Compliance
Certificate delivered pursuant to subsection 6.1(iii) or 4.2G, as applicable,
demonstrating a change in the Consolidated Total Debt Ratio requiring an
adjustment to the Applicable Margin, such adjustment to remain in effect until
three Business Days after the next date of delivery of a Compliance Certificate
(and related financial information required at such time pursuant to subsection
6.1 or 4.2G, as applicable) pursuant to subsection 6.1(iii) demonstrating a
change in the Consolidated Total Debt Ratio requiring an adjustment to the
Applicable Margin; PROVIDED that without limiting any Event of Default or
Potential Event of Default that may result therefrom, in the event Borrower does
not deliver any Compliance Certificate required pursuant to subsection 6.1 or
4.2G, as applicable, by the date specified therefor or if any Event of Default
shall have occurred and be continuing, then, upon the election of Requisite
Lenders, the Applicable Margin shall again be the highest amount set forth above
until such Event of Default is cured or waived or until three Business Days
after the delivery of such Compliance Certificate, as applicable. From the
Closing Date until delivery to Administrative Agent of the information described
above with respect to periods ending on September 30, 2000, the Applicable
Margin shall be determined as if the Consolidated Total Debt Ratio in effect
were equal to the "Consolidated Total Debt Ratio" reflected on the Compliance
Certificate delivered pursuant to subsection 4.1▇.
▇. INTEREST PERIODS. In connection with each LIBOR Rate Loan, Borrower
may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
"INTEREST PERIOD") to be applicable to such Loan, which Interest Period shall
be, at Borrower's option, either a one, two, three or six month period or, if
available to all Lenders, a nine or twelve month period; PROVIDED that:
(i) the initial Interest Period for any LIBOR Rate Loan shall
commence on the Funding Date in respect of such Loan, in the case of a
Loan initially made as a LIBOR Rate Loan, or on the date specified in
the applicable Notice of Conversion/Continuation, in the case of a Loan
converted to a LIBOR Rate Loan;
(ii) in the case of immediately successive Interest Periods
applicable to a LIBOR Rate Loan continued as such pursuant to a Notice
of Conversion/Continuation, each successive Interest Period shall
commence on the day on which the next preceding Interest Period
expires;
(iii) if an Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; PROVIDED
29
that, if any Interest Period would otherwise expire on a day that is
not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day;
(iv) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (v) of this subsection 2.2B, end on
the last Business Day of a calendar month;
(v) no Interest Period with respect to any portion of the Term
Loans shall extend beyond the Stated Maturity Date and no Interest
Period with respect to any portion of the Revolving Loans shall extend
beyond the Revolving Loan Commitment Termination Date;
(vi) no Interest Period with respect to any portion of the
Revolving Loans shall extend beyond the date on which a permanent
reduction of the Revolving Loan Commitments is scheduled to occur
unless the sum of (a) the aggregate principal amount of Revolving Loans
that are Base Rate Loans PLUS (b) the aggregate principal amount of
Revolving Loans that are LIBOR Rate Loans with Interest Periods
expiring on or before such date PLUS (c) the excess of the Revolving
Loan Commitments then in effect over the aggregate principal amount of
Revolving Loans then outstanding equals or exceeds the permanent
reduction of the Revolving Loan Commitments that is scheduled to occur
on such date;
(vii) no Interest Period with respect to any portion of the
Term Loans shall extend beyond the date on which a scheduled payment of
the Term Loans is scheduled to occur unless the sum of (a) the
aggregate principal amount of Term Loans that are Base Rate Loans plus
(b) the aggregate principal amount of Term Loans that are LIBOR Rate
Loans with Interest Periods expiring on or before such date equals or
exceeds the scheduled payment of the Term Loans that is scheduled to
occur on such date;
(viii) there shall be no more than ten (10) Interest Periods
outstanding at any time; and
(ix) in the event Borrower fails to specify an Interest Period
for any LIBOR Rate Loan in the applicable Notice of Borrowing or Notice
of Conversion/Continuation, Borrower shall be deemed to have selected
an Interest Period of one month.
C. INTEREST PAYMENTS. Subject to the provisions of subsection 2.2E,
interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity (including final
maturity); PROVIDED that in the event any Revolving Loans that are Base Rate
Loans are prepaid pursuant to subsection 2.4B(i), interest accrued on such
Revolving Loans through the date of such prepayment shall be payable on the next
succeeding Interest Payment Date applicable to Base Rate Loans (or, if earlier,
at final maturity).
D. CONVERSION OR CONTINUATION. Subject to the provisions of subsection
2.6, Borrower shall have the option (i) to convert at any time all or any part
of its outstanding Term
30
Loans or Revolving Loans equal to $500,000 and integral multiples of $100,000 in
excess of that amount from Loans bearing interest at a rate determined by
reference to one basis to Loans bearing interest at a rate determined by
reference to an alternative basis or (ii) upon the expiration of any Interest
Period applicable to a LIBOR Rate Loan, to continue all or any portion of such
Loan equal to $500,000 and integral multiples of $100,000 in excess of that
amount as a LIBOR Rate Loan; PROVIDED, HOWEVER, that a LIBOR Rate Loan may only
be converted into a Base Rate Loan on the expiration date of an Interest Period
applicable thereto.
Borrower shall deliver a Notice of Conversion/Continuation to
Administrative Agent no later than 12:00 Noon (New York time) at least one
Business Day in advance of the proposed conversion date (in the case of a
conversion to a Base Rate Loan) and at least three Business Days in advance of
the proposed conversion/continuation date (in the case of a conversion to, or a
continuation of, a LIBOR Rate Loan). A Notice of Conversion/Continuation shall
specify (i) the proposed conversion/continuation date (which shall be a Business
Day), (ii) the amount and type of the Loan to be converted/continued, (iii) the
nature of the proposed conversion/continuation, (iv) in the case of a conversion
to, or a continuation of, a LIBOR Rate Loan, the requested Interest Period, and
(v) in the case of a conversion to, or a continuation of, a LIBOR Rate Loan,
that no Potential Event of Default or Event of Default has occurred and is
continuing. In lieu of delivering the above-described Notice of
Conversion/Continuation, Borrower may give Administrative Agent telephonic
notice by the required time of any proposed conversion/continuation under this
subsection 2.2D; PROVIDED that such notice shall be promptly confirmed in
writing by delivery of a Notice of Conversion/Continuation to Administrative
Agent on or before the proposed conversion/continuation date; PROVIDED FURTHER
that failure to give such written notice shall not affect the validity of such
telephonic notice. Administrative Agent shall promptly notify the Lenders of
each Notice of Conversion/Continuation and the contents thereof.
Neither Administrative Agent nor any Lender shall incur any liability
to Borrower in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to act on behalf of Borrower or
for otherwise acting in good faith under this subsection 2.2D, and upon
conversion or continuation of the applicable basis for determining the interest
rate with respect to any Loans in accordance with this Agreement pursuant to any
such telephonic notice Borrower shall have effected a conversion or
continuation, as the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a
Notice of Conversion/Continuation for conversion to, or continuation of, a LIBOR
Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable on and
after the related Interest Rate Determination Date, and Borrower shall be bound
to effect a conversion or continuation in accordance therewith.
E. DEFAULT RATE. Upon the occurrence and during the continuation of (i)
any Event of Default under subsection 8.1 and (ii) any other Event of Default
and with the written request of Requisite Lenders, the outstanding principal
amount of all Loans and, to the extent permitted by applicable law, any interest
payments thereon not paid when due and any fees and other amounts then due and
payable hereunder, shall thereafter bear interest (including post-petition
interest in any proceeding under the Bankruptcy Code or other applicable
bankruptcy laws)
31
payable upon demand at a rate that is 2% per annum in excess of the interest
rate otherwise payable under this Agreement with respect to the applicable Loans
(or, in the case of any such fees and other amounts, at a rate which is 2% per
annum in excess of the interest rate otherwise payable under this Agreement for
Base Rate Loans); PROVIDED that, in the case of LIBOR Rate Loans, upon the
expiration of the Interest Period in effect at the time any such increase in
interest rate is effective and with the request of Requisite Lenders such LIBOR
Rate Loans shall thereupon become Base Rate Loans and shall thereafter bear
interest payable upon demand at a rate which is 2% per annum in excess of the
interest rate otherwise payable under this Agreement for Base Rate Loans.
Payment or acceptance of the increased rates of interest provided for in this
subsection 2.2E is not a permitted alternative to timely payment and shall not
constitute a waiver of any Event of Default or otherwise prejudice or limit any
rights or remedies of Administrative Agent or any Lender.
F. COMPUTATION OF INTEREST. Interest on the Loans shall be computed (i)
in the case of Base Rate Loans, on the basis of a 365-day or 366-day year, as
the case may be, and (ii) in the case of LIBOR Rate Loans, on the basis of a
360-day year, in each case for the actual number of days elapsed in the period
during which it accrues. In computing interest on any Loan, the date of the
making of such Loan or the first day of an Interest Period applicable to such
Loan or, with respect to a Base Rate Loan being converted from a LIBOR Rate
Loan, the date of conversion of such LIBOR Rate Loan to such Base Rate Loan, as
the case may be, shall be included, and the date of payment of such Loan or the
expiration date of an Interest Period applicable to such Loan or, with respect
to a Base Rate Loan being converted to a LIBOR Rate Loan, the date of conversion
of such Base Rate Loan to such LIBOR Rate Loan, as the case may be, shall be
excluded; PROVIDED that if a Loan is repaid on the same day on which it is made,
one day's interest shall be paid on that Loan.
2.3 FEES.
A. COMMITMENT FEES. Borrower agrees to pay to Administrative Agent, for
distribution to each Lender in proportion to that Lender's Pro Rata Share: (a)
revolving loan commitment fees for the period from and including the Closing
Date to and excluding the Revolving Loan Commitment Termination Date, equal to
the average of the daily excess of the Revolving Loan Commitments over the Total
Utilization of Revolving Loan Commitments MULTIPLIED BY the percentage set forth
below (the "COMMITMENT FEE PERCENTAGE") based upon the Consolidated Total Debt
Ratio and (b) term loan commitment fees for the period from and including the
Closing Date to and excluding the Term Loan Commitment Termination Date, equal
to the average of the daily excess of the Term Loan Commitments over the Total
Utilization of Term Loan Commitments MULTIPLIED BY the Commitment Fee Percentage
based upon the Consolidated Total Debt Ratio, such commitment fees to be
calculated on the basis of a 360-day year and the actual number of days elapsed
and to be payable quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year, commencing on the first such date to occur after the
Closing Date, and also payable (and terminating) on the Revolving Loan
Commitment Termination Date in the case of fees payable pursuant to clause (a)
above and the Term Loan Commitment Termination Date in the case of fees payable
pursuant to clause (b) above:
32
======================================================== ===================================
CONSOLIDATED COMMITMENT FEE
TOTAL DEBT RATIO PERCENTAGE
======================================================== ===================================
Greater than or equal to 5.00:1.00 0.375%
-------------------------------------------------------- -----------------------------------
Less than 5.00:1.00 0.250%
======================================================== ===================================
The Commitment Fee Percentage shall be 0.250% as of the Closing Date and
thereafter shall be adjusted, to the extent required, three Business Days after
the date of delivery of each Compliance Certificate delivered pursuant to
subsection 6.1(iii) demonstrating a change in the Consolidated Total Debt Ratio
requiring an adjustment to the Commitment Fee Percentage, such adjustment to
remain in effect until three Business Days after the next date of delivery of a
Compliance Certificate (and related financial information required at such time
pursuant to subsection 6.1) pursuant to subsection 6.1(iii) demonstrating a
change in the Consolidated Total Debt Ratio requiring an adjustment to the
Commitment Fee Percentage; PROVIDED that without limiting any Event of Default
or Potential Event of Default that may result therefrom, in the event Borrower
does not deliver any Compliance Certificate required pursuant to subsection 6.1
by the date specified therefor or if any Event of Default shall have occurred
and be continuing, then, upon the election of Requisite Lenders, the Commitment
Fee Percentage shall again be the highest amount set forth above until such
Event of Default is cured or waived or until three Business Days after the
delivery of such Compliance Certificate, as applicable; PROVIDED, FURTHER, that
if at any time on or after December 31, 2000 the ratio of (i) the Commitments to
(ii) the Total Utilization of Commitments is greater than 2.00:1.00, the
applicable Commitment Fee Percentage shall be increased by 0.375%.
B. OTHER FEES. Borrower agrees to pay to Administrative Agent such
other fees in the amounts and at the times separately agreed upon between
Borrower and Administrative Agent.
2.4 REPAYMENTS, PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN COMMITMENTS;
GENERAL PROVISIONS REGARDING PAYMENTS.
A. SCHEDULED PAYMENTS OF TERM LOANS AND SCHEDULED REDUCTIONS OF
REVOLVING LOAN COMMITMENTS.
(i) SCHEDULED PAYMENTS OF TERM LOANS. Borrower shall make
principal payments on the Term Loans in installments on the dates and
in the amounts set forth below:
33
=================================== =========================================
QUARTER SCHEDULED REPAYMENT OF
ENDING TERM LOANS
=================================== =========================================
March 31, 2002 $ 3,750,000
----------------------------------- -----------------------------------------
June 30, 2002 $ 3,750,000
----------------------------------- -----------------------------------------
September 30, 2002 $ 3,750,000
----------------------------------- -----------------------------------------
December 31, 2002 $ 3,750,000
----------------------------------- -----------------------------------------
March 31, 2003 $ 5,625,000
----------------------------------- -----------------------------------------
June 30, 2003 $ 5,625,000
----------------------------------- -----------------------------------------
September 30, 2003 $ 5,625,000
----------------------------------- -----------------------------------------
December 31, 2003 $ 5,625,000
----------------------------------- -----------------------------------------
March 31, 2004 $ 5,625,000
----------------------------------- -----------------------------------------
June 30, 2004 $ 5,625,000
----------------------------------- -----------------------------------------
September 30, 2004 $ 5,625,000
----------------------------------- -----------------------------------------
December 31, 2004 $ 5,625,000
----------------------------------- -----------------------------------------
March 31, 2005 $ 5,625,000
----------------------------------- -----------------------------------------
June 30, 2005 $ 5,625,000
----------------------------------- -----------------------------------------
September 30, 2005 $ 5,625,000
----------------------------------- -----------------------------------------
December 31, 2005 $ 5,625,000
----------------------------------- -----------------------------------------
March 31, 2006 $ 5,625,000
----------------------------------- -----------------------------------------
June 30, 2006 $ 5,625,000
----------------------------------- -----------------------------------------
September 30, 2006 $ 5,625,000
----------------------------------- -----------------------------------------
December 31, 2006 $ 5,625,000
----------------------------------- -----------------------------------------
March 31, 2007 $ 7,500,000
----------------------------------- -----------------------------------------
----------------------------------- -----------------------------------------
June 30, 2007 $ 7,500,000
----------------------------------- -----------------------------------------
----------------------------------- -----------------------------------------
September 30, 2007 $ 7,500,000
----------------------------------- -----------------------------------------
----------------------------------- -----------------------------------------
December 31, 2007 $ 7,500,000
----------------------------------- -----------------------------------------
----------------------------------- -----------------------------------------
March 31, 2008 $ 7,500,000
----------------------------------- -----------------------------------------
June 30, 2008 $ 7,500,000
=================================== =========================================
; PROVIDED that the scheduled installments of principal of the Term
Loans set forth above shall be reduced in connection with any voluntary
or mandatory prepayments of the Term Loans in accordance with
subsection 2.4B(iv); PROVIDED, FURTHER that the Term Loan Commitments
shall be permanently reduced on the Term Loan Commitment Termination
Date by the amount, if any, of the undrawn Term Loan Commitments as of
such date,
34
such reduction to be applied to the scheduled payments set forth above
pro rata (based on the respective amounts of such scheduled payments);
PROVIDED, STILL FURTHER that the Term Loans and all other amounts owed
hereunder with respect to the Term Loans shall be paid in full no later
than the Stated Maturity Date, and the final installment payable by
Borrower in respect of the Term Loans on such date shall be in an
amount, if such amount is different from that specified above,
sufficient to repay all amounts owing by Borrower under this Agreement
with respect to the Term Loans.
(ii) SCHEDULED REDUCTIONS OF REVOLVING LOAN COMMITMENTS. The
Revolving Loan Commitments shall be permanently reduced on the dates
and in the amounts set forth below:
=================================== =========================================
QUARTER SCHEDULED REDUCTION
ENDING OF REVOLVING
LOAN COMMITMENTS
=================================== =========================================
March 31, 2004 $ 3,750,000
----------------------------------- -----------------------------------------
June 30, 2004 $ 3,750,000
----------------------------------- -----------------------------------------
September 30, 2004 $ 3,750,000
----------------------------------- -----------------------------------------
December 31, 2004 $ 3,750,000
----------------------------------- -----------------------------------------
March 31, 2005 $ 5,625,000
----------------------------------- -----------------------------------------
June 30, 2005 $ 5,625,000
----------------------------------- -----------------------------------------
September 30, 2005 $ 5,625,000
----------------------------------- -----------------------------------------
December 31, 2005 $ 5,625,000
----------------------------------- -----------------------------------------
March 31, 2006 $ 5,625,000
----------------------------------- -----------------------------------------
June 30, 2006 $ 5,625,000
----------------------------------- -----------------------------------------
September 30, 2006 $ 5,625,000
----------------------------------- -----------------------------------------
December 31, 2006 $ 5,625,000
----------------------------------- -----------------------------------------
March 31, 2007 $ 7,500,000
----------------------------------- -----------------------------------------
June 30, 2007 $ 7,500,000
----------------------------------- -----------------------------------------
September 30, 2007 $ 7,500,000
----------------------------------- -----------------------------------------
December 31, 2007 $ 7,500,000
----------------------------------- -----------------------------------------
March 31, 2008 $ 30,000,000
----------------------------------- -----------------------------------------
June 30, 2008 $ 30,000,000
=================================== =========================================
35
; PROVIDED that the scheduled reductions of the Revolving Loan
Commitments set forth above shall be reduced in connection with any
voluntary or mandatory reductions of the Revolving Loan Commitments in
accordance with subsection 2.4B(iv); and PROVIDED, FURTHER that the
Revolving Loans and all other amounts owed hereunder with respect to
the Revolving Loans shall be paid in full no later than the Stated
Maturity Date, and the final installment payable by Borrower in respect
of the Revolving Loans on such date shall be in an amount, if such
amount is different from that specified above, sufficient to repay all
amounts owing by Borrower under this Agreement with respect to the
Revolving Loans.
B. PREPAYMENTS AND UNSCHEDULED REDUCTIONS IN REVOLVING LOAN
COMMITMENTS.
(i) VOLUNTARY PREPAYMENTS. Borrower may, upon not less than
one Business Day's prior written or telephonic notice, in the case of
Base Rate Loans, and three Business Days' prior written or telephonic
notice, in the case of LIBOR Rate Loans, in each case given to
Administrative Agent by 12:00 Noon (New York time) on the date required
and, if given by telephone, promptly confirmed in writing to
Administrative Agent, provided that failure to give such written
confirmation shall not affect the validity of such telephonic notice,
(which original written or telephonic notice Administrative Agent will
promptly transmit by telefacsimile or telephone to each Lender), at any
time and from time to time prepay without premium or penalty (other
than breakage and other costs with respect to LIBOR Rate Loans, to the
extent applicable, as set forth in subsection 2.6) any Loans on any
Business Day in whole or in part in an aggregate minimum amount of
$500,000 and integral multiples of $100,000 in excess of that amount;
PROVIDED, HOWEVER, that a LIBOR Rate Loan may only be prepaid on the
expiration of the Interest Period applicable thereto (unless Borrower
concurrently pays all costs required pursuant to subsection 2.6D with
respect to payment on any other date). Notice of prepayment having been
given as aforesaid, the principal amount of the Loans specified in such
notice shall become due and payable on the prepayment date specified
therein. Any such voluntary prepayment shall be applied as specified in
subsection 2.4B(iv)(a).
(ii) VOLUNTARY REDUCTIONS OF COMMITMENTS. Borrower may, upon
not less than one Business Day's prior written or telephonic notice
confirmed in writing to Administrative Agent, provided that failure to
give such written confirmation shall not affect the validity of such
telephonic notice, (which original written or telephonic notice
Administrative Agent will promptly transmit by telefacsimile or
telephone to each Lender), at any time and from time to time terminate
in whole or permanently reduce in part, without premium or penalty, (a)
the Revolving Loan Commitments in an amount up to the amount by which
the Revolving Loan Commitments exceed the Total Utilization of
Revolving Loan Commitments at the time of such proposed termination or
reduction or (b) the Term Loan Commitments in an amount up to the
amount by which the Term Loan Commitments exceed the Total Utilization
of Term Loan Commitments at the time of such proposed termination or
reduction; PROVIDED that any such partial reduction of the Revolving
Loan Commitments or Term Loan Commitments shall be in an aggregate
minimum amount of $500,000 and integral multiples of $100,000 in excess
of that
36
amount. Borrower's notice to Administrative Agent shall designate the
date (which shall be a Business Day) of such termination or reduction
and the amount of any partial reduction, and such termination or
reduction of the Revolving Loan Commitments or Term Loan Commitments,
as the case may be, shall be effective on the date specified in
Borrower's notice and shall reduce the Revolving Loan Commitment or
Term Loan Commitments, as the case may be, of each Lender
proportionately to its Pro Rata Share. Any such voluntary reduction of
the Revolving Loan Commitments shall be applied as specified in
subsection 2.4B(iv).
(iii) MANDATORY PREPAYMENTS AND MANDATORY REDUCTIONS OF LOANS
AND COMMITMENTS.
(a) Prepayments and Reductions from Asset Sales.
(1) Upon the receipt by any Credit Party of
any Net Cash Proceeds from any Asset Sale (or related
series of Asset Sales), when added to all Net Cash
Proceeds received by any Credit Party from all other
Asset Sales (and related series of Asset Sales), in
excess of $10,000,000 in the aggregate, 100% of such
Net Cash Proceeds shall be applied to repay the
outstanding Revolving Loans (but not reduce the
Revolving Loan Commitments) to the full extent
thereof; PROVIDED that on the 365th date following
receipt of such Net Cash Proceeds, an amount equal to
any amount of such Net Cash Proceeds which have not
been reinvested in a Permitted Acquisition or
reinvested in capital improvements by Borrower and
its Subsidiaries including capital expenditures
permitted hereunder by such date shall then be
applied by Borrower on such date FIRST to prepay the
outstanding Term Loans to the full extent thereof and
SECOND, to the extent of any such amount remaining,
to permanently reduce the Revolving Loan Commitments
to the full extent thereof.
(2) Notwithstanding the foregoing provisions
of subsection 2.4B(iii)(a)(1), in lieu of applying
the Net Cash Proceeds from the disposition of an
Asset Sale that constitutes the disposition of assets
used in the operation of a radio station (a
"RELINQUISHED STATION") to prepay the Loans,
permanently reduce the Revolving Loan Commitments
and/or permanently reduce the Term Loan Commitments
as set forth in subsection 2.4B(iv)(a), so long as no
Event of Default then exists or would exist after
giving effect to the disposition of such Relinquished
Station, the entity disposing of a Relinquished
Station may structure the disposition of the
Relinquished Station as an exchange of like-kind
property to the maximum extent possible under Section
1031 of the Internal Revenue Code (a "LIKE-KIND
EXCHANGE"). If the Borrower desires to effect a
Like-Kind Exchange, at or prior to closing the
disposition of the Relinquished Station, the Borrower
shall (A) establish a "qualified escrow account"
within the meaning of Treas. Reg.ss.1.1031(k)-1(g)(3)
or use such other safe harbor described in Treas.
Reg.ss.1.1031(k)-1(g) as is reasonably acceptable to
Administrative Agent, which account shall be
37
governed by an escrow agreement complying with the
requirements of Treas. ▇▇▇.▇▇.▇▇. 1.1031(k)-1(g)(4)
and 1.1031(k)-1(g)(6) and (B) deliver to the
Administrative Agent, as soon as reasonably
practicable but in no event later than the closing of
the transfer or other disposition of the Relinquished
Station by the Borrower, a security interest in its
rights in the escrow agreement in form and substance
reasonably satisfactory to the Administrative Agent
which governs (i) the "qualified escrow account" and
(ii) the proceeds thereof. Upon receipt of the
security interest executed by the Borrower, and in
all events no later than immediately before the
consummation of the closing of the transfer or other
disposition of the Relinquished Station, by the
Borrower, the Administrative Agent shall release any
and all liens of the Administrative Agent or the
Lenders in the cash proceeds from the transfer or
other disposition of the Relinquished Station for the
period necessary to comply with the requirements of
Treas. Reg.ss.1.1031(k)-1(g)(6). The terms of the
escrow agreement governing the "qualified escrow
account" shall, among other things, provide that
immediately upon the occurrence of any event set
forth in Treas. ▇▇▇.▇▇. 1.1031(k)-1(g)(6)(ii) or
(iii), the Net Cash Proceeds from the transfer or
other disposition of the Relinquished Station shall
be released to the Borrower and shall be applied as
provided for in subsection 2.4B(iii)(a)(1) hereof.
(b) PREPAYMENTS AND REDUCTIONS DUE TO ISSUANCE OF
DEBT OR EQUITY SECURITIES. On the date of receipt by any
Obligor of cash proceeds (net of underwriting discounts and
commissions and other reasonable costs associated therewith),
from one or more issuances of any debt or equity Securities of
such Obligor (excluding additional equity investments made by
any existing shareholder and all Obligations) ("NET SECURITIES
PROCEEDS"), Borrower shall prepay the Loans and/or the
Commitments shall be permanently reduced by an amount of such
Net Securities Proceeds sufficient to achieve a Consolidated
Total Debt Ratio at such time (calculated on a pro forma basis
giving effect to the reduction to Consolidated Total Debt
caused by such payment) of 6.00:1.00. Any such mandatory
prepayments or reductions shall be applied as specified in
subsection 2.4B(iv)(b)(2).
(c) PREPAYMENTS AND REDUCTIONS DUE TO INSURANCE
PROCEEDS. Upon the receipt by any Credit Party of any cash
payments under any of the insurance policies maintained
pursuant to subsection 6.4 net of any costs incurred in
collecting such payments ("NET INSURANCE PROCEEDS") in excess
of $10,000,000 in the aggregate, 100% of such Net Insurance
Proceeds shall be applied to repay the outstanding Revolving
Loans (but not reduce the Revolving Loan Commitments) to the
full extent thereof; PROVIDED that on the 365th date following
receipt of such Net Insurance Proceeds an amount equal to any
amount of such Net Insurance Proceeds which have not been used
by such date to pay or reimburse the costs of repairing,
restoring or replacing the assets in respect of which such Net
Insurance Proceeds payments were received shall then be
applied by Borrower on such date FIRST to prepay the
outstanding Term Loans to the full
38
extent thereof and SECOND, to the extent of any such amount
remaining, to permanently reduce the Revolving Loan
Commitments to the full extent thereof.
(d) PREPAYMENTS AND REDUCTIONS FROM CONSOLIDATED
EXCESS CASH FLOW. In the event that there shall be
Consolidated Excess Cash Flow for any Fiscal Year (commencing
with Fiscal Year 2002), then no later than 120 days after the
end of such Fiscal Year, Borrower shall prepay the Loans and
the Commitments shall be permanently reduced in an aggregate
amount equal to 50% of such Consolidated Excess Cash Flow if
(y) any Event of Default has occurred and is continuing or (z)
if the Consolidated Total Debt Ratio at the end of such Fiscal
Year is greater than or equal to 5.00:1.00; PROVIDED, HOWEVER,
that if neither of the foregoing clause (y) or (z) is
applicable, no payments shall be required hereunder with
respect to Consolidated Excess Cash Flow.
(e) CALCULATIONS OF NET PROCEEDS AMOUNTS; ADDITIONAL
PREPAYMENTS AND REDUCTIONS BASED ON SUBSEQUENT CALCULATIONS.
Concurrently with any prepayment of the Loans, reduction of
the Revolving Loan Commitments and/or reduction of the Term
Loan Commitments pursuant to subsections 2.4B(iii)(a)-(d),
Borrower shall deliver to Administrative Agent an Officers'
Certificate demonstrating the calculation of the amount (the
"NET PROCEEDS AMOUNT") of the applicable Net Cash Proceeds,
the applicable Net Securities Proceeds (as such term is
defined in subsection 2.4B(iii)(b)), the applicable Net
Insurance Proceeds (as such term is defined in subsection
2.4B(iii)(c)), or the applicable Consolidated Excess Cash
Flow, as the case may be, that gave rise to such prepayment
and/or reduction. In the event that Borrower shall
subsequently determine that the actual Net Proceeds Amount was
greater than the amount set forth in such Officers'
Certificate (including, without limitation, if any Net Cash
Proceeds retained for reinvestment are not so reinvested),
Borrower shall promptly make an additional prepayment of the
Loans (and/or, if applicable, the Revolving Loan Commitments
and/or Term Loan Commitments shall be permanently reduced) in
an amount equal to the amount of such excess in the manner
specified in subsection 2.4B(iv)(b)(1) if such prepayment is
made in connection with Net Cash Proceeds or Net Insurance
Proceeds and subsection 2.4B(iv)(b)(2) if such prepayment is
made in connection with Net Securities Proceeds or
Consolidated Excess Cash Flow, and Borrower shall concurrently
therewith deliver to Administrative Agent an Officers'
Certificate demonstrating the derivation of the additional Net
Proceeds Amount resulting in such excess. Anything in this
Agreement to the contrary notwithstanding, if on any date of
determination any Net Proceeds Amount received by any Credit
Party is less than $1,000,000, then such Net Proceeds Amount
need not be applied as set forth above until the aggregate
amount of all Net Proceeds Amounts received and not so applied
is equal to at least $1,000,000 in the aggregate.
(f) PREPAYMENTS DUE TO REDUCTIONS OR RESTRICTIONS OF
REVOLVING LOAN COMMITMENTS. Borrower shall from time to time
prepay the Revolving Loans to the extent necessary so that the
Total Utilization of Revolving Loan Commitments shall not at
any time exceed the Revolving Loan Commitments
39
then in effect. Any such mandatory prepayments shall be
applied as specified in subsection 2.4B(iv).
(iv) APPLICATION OF PREPAYMENTS AND UNSCHEDULED REDUCTIONS OF
REVOLVING LOAN COMMITMENTS.
(a) APPLICATION OF VOLUNTARY PREPAYMENTS AND
UNSCHEDULED REDUCTIONS OF REVOLVING LOAN COMMITMENTS. Any
voluntary prepayments pursuant to subsections 2.4B(i) and
2.4B(ii) shall be applied as specified by Borrower in the
applicable notice of prepayment; PROVIDED that in the event
Borrower fails to specify the Loans to which any such
prepayment shall be applied, such prepayment shall be applied
FIRST to repay outstanding Revolving Loans to the full extent
thereof and SECOND to repay outstanding Term Loans to the full
extent thereof. Any voluntary prepayments of the Term Loans
pursuant to subsection 2.4B(i) shall be applied on a pro rata
basis (in accordance with the respective outstanding principal
amounts thereof) to each scheduled installment of principal of
the Term Loans set forth in subsection 2.4A(i) that is unpaid
at the time of such prepayment.
(b) APPLICATION OF MANDATORY PREPAYMENTS BY TYPE OF
LOANS.
(1) Any amounts in respect of any unutilized
or unreinvested Net Cash Proceeds or Net Insurance
Proceeds required to be applied as a mandatory
prepayment of the Term Loans and/or to permanently
reduce the Revolving Loan Commitments pursuant to
subsections 2.4B(iii)(a) or (c) shall be applied
FIRST to prepay the Term Loans to the full extent
thereof, SECOND, to the extent of any remaining Net
Cash Proceeds or Net Insurance Proceeds to prepay the
Revolving Loans to the full extent thereof and
permanently reduce the Revolving Loan Commitments by
the amount of such prepayment, THIRD, to the extent
of any remaining Net Cash Proceeds or Net Insurance
Proceeds, to further permanently reduce the Revolving
Loan Commitments to the full extent thereof, and
FOURTH, to the extent of any remaining Net Cash
Proceeds or Net Insurance Proceeds to reduce the Term
Loan Commitments to the full extent thereof.
(2) Any amount required to be applied as a
mandatory prepayment of the Loans, a reduction of the
Revolving Loan Commitments and/or a reduction of the
Term Loan Commitments pursuant to subsections
2.4B(iii)(b) or (d) shall be applied FIRST, to prepay
the Term Loans to the full extent thereof, SECOND, to
the extent of any remaining portion of such amount to
prepay the Revolving Loans to the full extent thereof
and to permanently reduce the Revolving Loan
Commitments by the amount of such prepayment, THIRD,
to the extent of any remaining portion of such
amount, to further permanently reduce the Revolving
Loan Commitments to the full extent thereof and
FOURTH, to the extent of any remaining portion of
such amount to reduce the Term Loan Commitments to
the full extent thereof.
40
(c) APPLICATION OF MANDATORY PREPAYMENTS OF TERM
LOANS ON PRO RATA BASIS. Any mandatory prepayments of the Term
Loans pursuant to subsection 2.4B(iv)(b) shall be applied on a
pro rata basis (in accordance with the respective outstanding
principal amounts thereof) to each scheduled installment of
principal of the Term Loans set forth in subsection 2.4A(i)
that is unpaid at the time of such prepayment.
(d) APPLICATION OF MANDATORY PREPAYMENTS OF REVOLVING
LOANS AND UNSCHEDULED REDUCTIONS OF REVOLVING LOAN
COMMITMENTS. Any mandatory reduction of the Revolving Loan
Commitments pursuant to subsection 2.4B(iv)(b) or subsection
2.4B(iii)(a) or (c) shall be applied (based on the amount of
the Revolving Loan Commitments in effect at such time) to
prepay the Revolving Loans and to further permanently reduce
the scheduled reductions of Revolving Loan Commitments by the
amount of such prepayment on a pro rata basis.
(e) APPLICATION OF PREPAYMENTS TO BASE RATE LOANS AND
LIBOR RATE LOANS. Prepayments of Loans shall be applied first
to Base Rate Loans to the full extent thereof before
application to LIBOR Rate Loans, in a manner which minimizes
the amount of any payments required to be made by Borrower
pursuant to subsection 2.6D.
C. GENERAL PROVISIONS REGARDING PAYMENTS.
(i) MANNER AND TIME OF PAYMENT. All payments by Borrower of
principal, interest, fees and other Obligations hereunder and under the
Notes shall be made in Dollars in same day funds, without defense,
setoff or counterclaim, free of any restriction or condition, and
delivered to Administrative Agent not later than 1:00 P.M. (New York
time) on the date due at the Funding and Payment Office for the account
of Lenders; funds received by Administrative Agent after that time on
such due date shall be deemed to have been paid by Borrower on the next
succeeding Business Day.
(ii) APPLICATION OF PAYMENTS TO PRINCIPAL AND INTEREST. Except
as otherwise provided in Section 2.2C, all payments in respect of the
principal amount of any Loan shall include payment of accrued interest
on the principal amount being repaid or prepaid, and all such payments
shall be applied to the payment of interest before application to
principal.
(iii) APPORTIONMENT OF PAYMENTS. Aggregate principal and
interest payments shall be apportioned among all outstanding Loans to
which such payments relate, in each case proportionately to Lenders'
respective Pro Rata Shares. Administrative Agent shall promptly
distribute to each Lender, at its primary address set forth below its
name on the appropriate signature page hereof or at such other address
as such Lender may request, its Pro Rata Share of all such payments
received by Administrative Agent and the commitment fees of such Lender
when received by Administrative Agent pursuant to subsection 2.3.
Notwithstanding the foregoing provisions of this subsection 2.4C(iii),
if, pursuant to the provisions of subsection 2.6C, any Notice of
Conversion/Continuation is withdrawn as to any Affected Lender or if
any Affected Lender makes Base Rate Loans
41
in lieu of its Pro Rata Share of any LIBOR Rate Loans, Administrative
Agent shall give effect thereto in apportioning payments received
thereafter.
(iv) PAYMENTS ON BUSINESS DAYS. Whenever any payment to be
made hereunder shall be stated to be due on a day that is not a
Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the
computation of the payment of interest hereunder or of the commitment
fees hereunder, as the case may be.
(v) NOTATION OF PAYMENT. Each Lender agrees that before
disposing of any Note held by it, or any part thereof (other than by
granting participations therein), that Lender will make a notation
thereon of all Loans evidenced by that Note and all principal payments
previously made thereon and of the date to which interest thereon has
been paid; PROVIDED that the failure to make (or any error in the
making of) a notation of any Loan made under such Note shall not limit
or otherwise affect the obligations of Borrower hereunder or under such
Note with respect to any Loan or any payments of principal or interest
on such Note.
2.5 USE OF PROCEEDS.
A. TERM LOANS AND REVOLVING LOANS. The proceeds of the Term Loans and
the Revolving Loans shall be applied by Borrower to (i) refinance the Existing
Credit Agreement, (ii) pay the purchase price and related fees and expenses for
potential future acquisitions of radio broadcasting stations by Subsidiaries of
Borrower as permitted hereunder and (iii) provide financing for working capital
and other general corporate purposes of Borrower and its Subsidiaries.
B. MARGIN REGULATIONS. No portion of the proceeds of any borrowing
under this Agreement shall be used by Borrower or any of its Subsidiaries in any
manner that might cause the borrowing or the application of such proceeds to
violate Regulation U, Regulation T or Regulation X of the Board of Governors of
the Federal Reserve System or any other regulation of such Board or to violate
the Exchange Act, in each case as in effect on the date or dates of such
borrowing and such use of proceeds.
2.6 SPECIAL PROVISIONS GOVERNING LIBOR RATE LOANS.
Notwithstanding any other provision of this Agreement to the contrary,
the following provisions shall govern with respect to LIBOR Rate Loans as to the
matters covered:
A. DETERMINATION OF APPLICABLE INTEREST RATE. As soon as practicable
after 10:00 A.M. (New York time) on each Interest Rate Determination Date,
Administrative Agent shall determine (which determination shall, absent manifest
error, be final, conclusive and binding upon all parties) the Adjusted LIBOR
Rate that shall apply to the LIBOR Rate Loans for which an interest rate is then
being determined for the applicable Interest Period and shall promptly give
notice thereof (in writing or by telephone confirmed in writing) to Borrower and
each Lender.
42
B. INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the event that
Administrative Agent shall have determined (which determination shall be final
and conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date with respect to any LIBOR Rate Loans, that by reason of
circumstances affecting the London interbank market adequate and fair means do
not exist for ascertaining the Adjusted LIBOR Rate applicable to such Loans on
the basis provided for in the definition of Adjusted LIBOR Rate, Administrative
Agent shall on such date give notice (by telefacsimile or by telephone confirmed
in writing) to Borrower and each Lender of such determination, whereupon (i) no
Loans may be made as, or converted to, LIBOR Rate Loans until such time as
Administrative Agent notifies Borrower and Lenders that the circumstances giving
rise to such notice no longer exist and (ii) any Notice of Borrowing or Notice
of Conversion/Continuation given by Borrower with respect to the Loans in
respect of which such determination was made shall be deemed to be rescinded by
Borrower.
C. ILLEGALITY OR IMPRACTICABILITY OF LIBOR RATE LOANS. In the event
that on any date any Lender shall have determined (which determination shall be
final and conclusive and binding upon all parties hereto but shall be made only
after consultation with Borrower and Administrative Agent) that the making,
maintaining or continuation of its LIBOR Rate Loans (i) has become unlawful as a
result of compliance by such Lender in good faith with any law, treaty,
governmental rule, regulation, guideline or order (or would conflict with any
such treaty, governmental rule, regulation, guideline or order not having the
force of law even though the failure to comply therewith would not be unlawful)
or (ii) has become impracticable, or would cause such Lender material hardship,
as a result of contingencies occurring after the date of this Agreement which
materially and adversely affect the London interbank market or the position of
such Lender in that market, then, and in any such event, such Lender shall be an
"AFFECTED LENDER" and it shall on that day give notice (by telefacsimile or by
telephone confirmed in writing) to Borrower and Administrative Agent of such
determination (which notice Administrative Agent shall promptly transmit to each
other Lender). Thereafter (a) the obligation of the Affected Lender to make
Loans as, or to convert Loans to, LIBOR Rate Loans shall be suspended until such
notice shall be withdrawn by the Affected Lender, (b) to the extent such
determination by the Affected Lender relates to a LIBOR Rate Loan then being
requested by Borrower pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, the Affected Lender shall make such Loan as (or convert
such Loan to, as the case may be) a Base Rate Loan, (c) the Affected Lender's
obligation to maintain its outstanding LIBOR Rate Loans (the "AFFECTED LOANS")
shall be terminated at the earlier to occur of the expiration of the Interest
Period then in effect with respect to the Affected Loans or when required by
law, and (d) the Affected Loans shall automatically convert into Base Rate Loans
on the date of such termination. Notwithstanding the foregoing, to the extent a
determination by an Affected Lender as described above relates to a LIBOR Rate
Loan then being requested by Borrower pursuant to a Notice of Borrowing or a
Notice of Conversion/Continuation, Borrower shall have the option, subject to
the provisions of subsection 2.6D, to rescind such Notice of Borrowing or Notice
of Conversion/Continuation as to all Lenders by giving notice (by telefacsimile
or by telephone confirmed in writing) to Administrative Agent of such rescission
on the date on which the Affected Lender gives notice of its determination as
described above (which notice of rescission Administrative Agent shall promptly
transmit to each other Lender). Except as provided in the immediately preceding
sentence, nothing in this subsection 2.6C shall affect the obligation of any
Lender other than an Affected Lender to make or maintain Loans as, or to convert
Loans to, LIBOR Rate Loans in accordance with the terms of this Agreement.
43
D. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST PERIODS.
Borrower shall compensate each Lender, upon written request by that Lender
(which request shall set forth in reasonable detail the basis for requesting
such amounts), for all reasonable losses, expenses and liabilities (including,
without limitation, any interest paid by that Lender to lenders of funds
borrowed by it to make or carry its LIBOR Rate Loans and any loss, expense or
liability sustained by that Lender in connection with the liquidation or
re-employment of such funds, but not including loss of profits) which that
Lender may sustain: (i) if for any reason (other than a default by that Lender)
a borrowing of any LIBOR Rate Loan does not occur on a date specified therefor
in a Notice of Borrowing or a telephonic request for borrowing, or a conversion
to or continuation of any LIBOR Rate Loan does not occur on a date specified
therefor in a Notice of Conversion/Continuation or a telephonic request for
conversion or continuation, (ii) if any prepayment or other principal payment or
any conversion of any of its LIBOR Rate Loans occurs on a date prior to the last
day of an Interest Period applicable to that Loan, (iii) if any prepayment of
any of its LIBOR Rate Loans is not made on any date specified in a notice of
prepayment given by Borrower, or (iv) as a consequence of any other default by
Borrower in the repayment of its LIBOR Rate Loans when required by the terms of
this Agreement.
E. BOOKING OF LIBOR RATE LOANS. Any Lender may make, carry or transfer
LIBOR Rate Loans at, to, or for the account of any of its branch offices or the
office of an Affiliate of that Lender, but in any such event without discharging
Lender from its obligations to make Loans subject to and in accordance with the
provisions of the Loan Documents.
F. ASSUMPTIONS CONCERNING FUNDING OF LIBOR RATE LOANS. Calculation of
all amounts payable to a Lender under this subsection 2.6 and under subsection
2.7A shall be made as though that Lender had actually funded each of its
relevant LIBOR Rate Loans through the purchase of a LIBOR deposit bearing
interest at the rate obtained pursuant to clause (i) of the definition of
Adjusted LIBOR Rate in an amount equal to the amount of such LIBOR Rate Loan and
having a maturity comparable to the relevant Interest Period and through the
transfer of such LIBOR deposit from an offshore office of that Lender to a
domestic office of that Lender in the United States of America; PROVIDED,
HOWEVER, that each Lender may fund each of its LIBOR Rate Loans in any manner it
sees fit and the foregoing assumptions shall be utilized only for the purposes
of calculating amounts payable under this subsection 2.6 and under subsection
2.7A.
G. LIBOR RATE LOANS AFTER DEFAULT. After the occurrence of and during
the continuation of (i) any Event of Default under subsection 8.1 and (ii) any
other Event of Default and with the written request of Requisite Lenders, (y)
Borrower may not elect to have a Loan be made or maintained as, or converted to,
a LIBOR Rate Loan after the expiration of any Interest Period then in effect for
that Loan and (z) subject to the provisions of subsection 2.6D, any Notice of
Borrowing or Notice of Conversion/Continuation given by Borrower with respect to
a requested borrowing or conversion/continuation that has not yet occurred shall
be deemed to be rescinded by Borrower.
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
A. COMPENSATION FOR INCREASED COSTS AND TAXES. Subject to the
provisions of subsection 2.7B, in the event that any Lender shall determine
(which determination shall, absent
44
manifest error, be final and conclusive and binding upon all parties hereto)
that the adoption or modification after the date hereof of any law, treaty or
governmental rule, regulation or order, or any change after the date hereof
therein or in the interpretation, administration or application thereof
(including the introduction of any new law, treaty or governmental rule,
regulation or order), or any determination of a court or governmental authority,
in each case that first becomes effective after the date hereof, or compliance
by such Lender with any guideline, request or directive first issued or made
after the date hereof by any central bank or other governmental or
quasi-governmental authority (whether or not having the force of law):
(i) subjects such Lender (or its applicable lending office) to
any additional Tax (other than any Tax on the overall net income of
such Lender) with respect to this Agreement or any of its obligations
hereunder or any payments to such Lender (or its applicable lending
office) of principal, interest, fees or any other amount payable
hereunder;
(ii) imposes, modifies or holds applicable any reserve
(including without limitation any marginal, emergency, supplemental,
special or other reserve), special deposit, compulsory loan, FDIC
insurance or similar requirement against assets held by, or deposits or
other liabilities in or for the account of, or advances or loans by, or
other credit extended by, or any other acquisition of funds by, any
office of such Lender (other than any such reserve or other
requirements with respect to LIBOR Rate Loans that are reflected in the
definition of Adjusted LIBOR Rate); or
(iii) imposes any other condition (other than with respect to
a Tax matter) on or affecting such Lender (or its applicable lending
office) or its obligations hereunder or the London interbank market;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Loans hereunder or to reduce any amount
received or receivable by such Lender (or its applicable lending office) with
respect thereto; then, in any such case, Borrower shall promptly pay to such
Lender, upon receipt of the statement referred to in the next sentence, such
additional amount or amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
reasonable discretion shall determine) as may be necessary to compensate such
Lender for any such increased cost or reduction in amounts received or
receivable hereunder. Such Lender shall deliver to Borrower (with a copy to
Administrative Agent) a written statement, setting forth in reasonable detail
the basis for calculating the additional amounts owed to such Lender under this
subsection 2.7A, which statement shall be presumptively correct absent manifest
error.
B. WITHHOLDING OF TAXES.
(i) PAYMENTS TO BE FREE AND CLEAR. All sums payable by
Borrower under this Agreement and the other Loan Documents shall be
paid free and clear of and (except to the extent required by law)
without any deduction or withholding on account of any Tax (other than
a Tax on the overall net income of any Lender) imposed, levied,
collected, withheld or assessed by or within the United States of
America or any political
45
subdivision in or of the United States of America or any other
jurisdiction from or to which a payment is made by or on behalf of
Borrower or by any federation or organization of which the United
States of America or any such jurisdiction is a member at the time of
payment.
(ii) GROSSING-UP OF PAYMENTS. If Borrower or any other Person
is required by law to make any deduction or withholding on account of
any such Tax from any sum paid or payable by Borrower to Administrative
Agent or any Lender under any of the Loan Documents:
(a) Borrower shall notify Administrative Agent of any
such requirement or any change in any such requirement
promptly after the Borrower becomes aware of it;
(b) Borrower shall pay any such Tax before the date
on which penalties attach thereto, such payment to be made (if
the liability to pay is imposed on Borrower) for its own
account or (if that liability is imposed on Administrative
Agent or such Lender, as the case may be) on behalf of and in
the name of Administrative Agent or such Lender;
(c) the sum payable by Borrower in respect of which
the relevant deduction, withholding or payment is required
shall be increased to the extent necessary to ensure that,
after the making of that deduction, withholding or payment,
Administrative Agent or such Lender, as the case may be,
receives on the due date a net sum equal to what it would have
received had no such deduction, withholding or payment been
required or made; and
(d) within 30 days after paying any sum from which it
is required by law to make any deduction or withholding, and
within 30 days after the due date of payment of any Tax which
it is required by clause (b) above to pay, Borrower shall
deliver to Administrative Agent evidence reasonably
satisfactory to the other affected parties of such deduction,
withholding or payment and of the remittance thereof to the
relevant taxing or other authority;
PROVIDED that no such additional amount shall be required to be paid to
any Lender under clause (c) above except to the extent that (1) any
change after the date hereof (in the case of each Lender listed on the
signature pages hereof) or after the date of the assignment agreement
pursuant to which such Lender became a Lender (in the case of each
other Lender) in any such requirement for a deduction, withholding or
payment as is mentioned therein shall result in an increase in the rate
of such deduction, withholding or payment from that in effect at the
date of this Agreement or at the date of such assignment agreement, as
the case may be, in respect of payments to such Lender and (2) such
Lender has timely provided to Borrower all forms required under clause
(iii) below.
(iii) Evidence of Exemption from U.S. Withholding Tax.
(a) Each Lender that is organized under the laws of
any jurisdiction other than the United States or any state or
other political subdivision thereof (for
46
purposes of this subsection 2.7B(iii), a "NON-US LENDER")
shall deliver to Administrative Agent for transmission to
Borrower, on or prior to the Closing Date (in the case of each
Lender listed on the signature pages hereof) or on the date of
the assignment agreement pursuant to which it becomes a Lender
(in the case of each other Lender), and at such other times as
may be necessary in the determination of Borrower or
Administrative Agent (each in the reasonable exercise of its
discretion), (1) two original copies of Internal Revenue
Service Form 8-ECI or 8-BEN (or any successor forms), properly
completed and duly executed by such Lender, together with any
other certificate or statement of exemption required under the
Internal Revenue Code or the regulations issued thereunder to
establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect
to any payments to such Lender of principal, interest, fees or
other amounts payable under any of the Loan Documents or (2)
if such Lender is not a "bank" or other Person described in
Section 881(c)(3) of the Internal Revenue Code and cannot
deliver either Internal Revenue Service Form 8-ECI or 8-BEN
pursuant to clause (1) above, a Certificate re Non-Bank Status
together with two original copies of Internal Revenue Service
Form W-8 (or any successor form), properly completed and duly
executed by such Lender, together with any other certificate
or statement of exemption required under the Internal Revenue
Code or the regulations issued thereunder to establish that
such Lender is not subject to deduction or withholding of
United States federal income tax with respect to any payments
to such Lender of interest or other amounts payable under any
of the Loan Documents.
(b) Each Lender required to deliver any forms,
certificates or other evidence with respect to United States
federal income tax withholding matters pursuant to subsection
2.7B(iii)(a) hereby agrees, from time to time after the
initial delivery by such Lender of such forms, certificates or
other evidence, whenever a lapse in time or change in
circumstances renders such forms, certificates or other
evidence obsolete or inaccurate in any material respect, such
Lender shall (1) deliver to Administrative Agent for
transmission to Borrower two new original copies of Internal
Revenue Service Form 8-ECI or 8-BEN, or a Certificate re
Non-Bank Status and two original copies of Internal Revenue
Service Form W-8, as the case may be, properly completed and
duly executed by such Lender, together with any other
certificate or statement of exemption required in order to
confirm or establish that such Lender is not subject to
deduction or withholding of United States federal income tax
with respect to payments to such Lender under the Loan
Documents or (2) immediately notify Administrative Agent and
Borrower of its inability to deliver any such forms,
certificates or other evidence.
(c) Borrower shall not be required to pay any
additional amount to any Non-US Lender under clause (c) of
subsection 2.7B(ii) if such Lender shall have failed to
satisfy the requirements of subsection 2.7B(iii)(a) and (b);
PROVIDED that if such Lender shall have satisfied such
requirements on the Closing Date (in the case of each Lender
listed on the signature pages hereof) or on the date of the
assignment agreement pursuant to which it became a Lender (in
the case of each
47
other Lender), nothing in this subsection 2.7B(iii)(c) shall
relieve Borrower of its obligation to pay any additional
amounts pursuant to clause (c) of subsection 2.7B(ii) in the
event that, as a result of any change in any applicable law,
treaty or governmental rule, regulation or order, or any
change in the interpretation, administration or application
thereof, such Lender is no longer properly entitled to deliver
forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender is not subject to
withholding as described in subsection 2.7B(iii)(a) and such
Lender complies with subsection 2.7B(iii)(b).
C. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have determined
that the adoption after the date hereof of any law, rule or regulation (or any
provision thereof) regarding capital adequacy, or any change after the date
hereof therein or in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
applicable lending office) with any guideline, request or directive regarding
capital adequacy (whether or not having the force of law) of any such
governmental authority, central bank or comparable agency which is first made
after the date hereof, has or would have the effect of reducing the rate of
return on the capital of such Lender or any corporation controlling such Lender
as a consequence of, or with reference to, such Lender's Loans or Commitments or
Letters of Credit or participations therein or other obligations hereunder with
respect to the Loans or the Letters of Credit to a level below that which such
Lender or such controlling corporation could have achieved but for such
adoption, effectiveness, phase-in, applicability, change or compliance (taking
into consideration the policies of such Lender or such controlling corporation
with regard to capital adequacy), then from time to time, within ten Business
Days after receipt by Borrower from such Lender of the statement referred to in
the next sentence, Borrower shall pay to such Lender such additional amount or
amounts as will compensate such Lender or such controlling corporation on an
after-tax basis for such reduction. Such Lender shall deliver to Borrower (with
a copy to Administrative Agent) a written statement, setting forth in reasonable
detail the basis of the calculation of such additional amounts, which statement
shall be presumptively correct absent manifest error.
2.8 OBLIGATION OF LENDERS AND ISSUING LENDERS TO MITIGATE.
Each Lender and Issuing Lender agrees that, as promptly as practicable
after the officer of such Lender or Issuing Lender responsible for administering
the Loans or Letters of Credit of such Lender or Issuing Lender, as the case may
be, becomes aware of the occurrence of an event or the existence of a condition
that would cause such Lender to become an Affected Lender or that would entitle
such Lender or Issuing Lender to receive payments under subsection 2.6C,
subsection 2.7 or subsection 3.6, it will, to the extent not inconsistent with
any applicable legal or regulatory restrictions, use reasonable efforts (i) to
make, issue, fund or maintain the Commitments of such Lender or Issuing Lender
or the affected Loans or Letters of Credit of such Lender or Issuing Lender
through another lending or letter of credit office of such Lender or Issuing
Lender, or (ii) take such other measures as such Lender or Issuing Lender may
deem reasonable, if as a result thereof the circumstances which would cause such
Lender to be an Affected Lender would cease to exist or the additional amounts
which would otherwise be required to be paid to such Lender pursuant to
subsection 2.7 or subsection 3.6 would be materially reduced and if, as
determined by such Lender or Issuing Lender in its sole discretion,
48
the making, issuing, funding or maintaining of such Commitments or Loans or
Letters of Credit through such other lending or letter of credit office or in
accordance with such other measures, as the case may be, would not otherwise
materially adversely affect such Commitments or Loans or Letters of Credit or
the interests of such Lender or Issuing Lender; PROVIDED that such Lender or
Issuing Lender will not be obligated to utilize such other lending or letter of
credit office pursuant to this subsection 2.8 unless Borrower agrees to pay all
incremental expenses reasonably incurred by such Lender or Issuing Lender as a
result of utilizing such other lending or letter of credit office as described
in clause (i) above. A certificate as to the amount of any such expenses payable
by Borrower pursuant to this subsection 2.8 (setting forth in reasonable detail
the basis for requesting such amount) submitted by such Lender or Issuing Lender
to Borrower (with a copy to Administrative Agent) shall be presumptively correct
absent manifest error.
2.9 AFFECTED LENDERS.
If Borrower is obligated to pay to any Lender any additional amount
under subsections 2.6 (other than subsection 2.6D), 2.7 or 3.6 hereof, Borrower
may, if no Event of Default or Potential Event of Default then exists, replace
such Lender with one or more assignees reasonably acceptable to Administrative
Agent, and such Lender hereby agrees to be so replaced subject to the following:
(i) The obligations of Borrower hereunder to the Lender to be
replaced (including such increased or additional costs incurred by such
Lender through the date such Lender is replaced hereunder) shall be
paid in full to such Lender concurrently with such replacement;
(ii) Each replacement Lender shall be a bank or other
financial institution that is not subject to such increased costs which
caused Borrower's election to replace any Lender hereunder, and each
such replacement Lender shall execute and deliver to Administrative
Agent such documentation satisfactory to Administrative Agent pursuant
to which such replacement Lender is to become a party hereto, with a
commitment equal (in the aggregate, if applicable) to that of the
Lender being replaced and shall make Loans in the aggregate principal
amount equal (in the aggregate, if applicable) to the aggregate
outstanding principal amount of the Loans of the Lender being replaced;
(iii) Upon such execution of such documents referred to in
clause (ii) and repayment of the amount referred to in clause (i), each
replacement Lender shall be a "Lender" with a commitment as specified
hereinabove and the Lender being replaced shall cease to be a "Lender"
hereunder, except with respect to such provisions under this Agreement,
which expressly survive the termination of this Agreement as to such
replaced Lender;
(iv) Administrative Agent shall reasonably cooperate in
effectuating the replacement of any Lender under this subsection 2.9,
but at no time shall Administrative Agent be obligated to initiate any
such replacement;
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(v) Any Lender replaced under this subsection 2.9 shall be
replaced at Borrower's sole cost and expense; and
(vi) If Borrower proposes to replace any Lender pursuant to
this subsection 2.9 because the Lender seeks reimbursement under
subsection 2.6, 2.7 or 3.6, then it must also replace any other Lender
who seeks similar or greater levels of reimbursement (as a percentage
of such Lender's commitment) under such subsections; PROVIDED HOWEVER
that if the amount of the commitment any replacement Lender is willing
to commit to does not exceed the aggregate of the commitments of each
such Lender seeking such reimbursement, the commitment of each such
Lender seeking reimbursement shall be reduced pro rata to the extent of
the commitment of such replacement Lender.
2.10 GUARANTIES OF AND SECURITY FOR THE OBLIGATIONS.
A. HOLDINGS, BORROWER AND BORROWER'S SUBSIDIARIES. To the extent set
forth in the Security Documents and Subsidiary Guaranty, (i) each Subsidiary of
Borrower shall guaranty the Obligations of Borrower pursuant to the Subsidiary
Guaranty, (ii) to secure the full performance of the Obligations, each Credit
Party shall grant, subject to the limitation set forth in subsection 2.10B(ii),
to Administrative Agent on behalf and for the ratable benefit of Lenders, a duly
perfected First Priority Lien on all of the personal property of such Credit
Party, to the extent contemplated by the Security Documents and (iii) to secure
the full performance of the Obligations, Holdings shall grant, subject to the
limitation set forth in subsection 2.10B(ii), to Administrative Agent on behalf
and for the ratable benefit of Lenders, a duly perfected First Priority Lien on
all of the Equity Securities of Borrower.
B. FURTHER ASSURANCES; ADDITIONAL SECURITY.
(i) Borrower shall, and shall cause each other Obligor to,
from time to time, execute and deliver to Administrative Agent on
behalf of Lenders, such additional Security Documents, statements,
documents, agreements and reports as it may from time to time
reasonably request to evidence, perfect or otherwise implement or
assure the security for repayment of the Obligations; PROVIDED that no
Obligor shall be required to provide any different type of Collateral
from that contemplated for such by the Security Documents to which it
is a party as of the Closing Date.
(ii) Notwithstanding anything herein to the contrary, to the
extent this Agreement or any other Loan Document purports to require
any Credit Party to grant to Administrative Agent, on behalf and for
the ratable benefit of Lenders, a security interest in the FCC Licenses
of such Credit Party, Administrative Agent, on behalf and for the
ratable benefit of Lenders, shall only have a security interest in such
licenses at such times and to the extent that a security interest in
such licenses is permitted under applicable law. Notwithstanding
anything to the contrary set forth herein, Administrative Agent, on
behalf of Lenders, agrees that to the extent prior FCC approval is
required pursuant to the Communications Act for (a) the operation and
effectiveness of any grant, right or remedy hereunder or under any Loan
Document or (b) taking any action that may be taken by Administrative
Agent hereunder or under any Loan Document, such grant, right, remedy
or actions will be subject to such prior FCC approval having been
obtained
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by or in favor of Administrative Agent, on behalf and for the ratable
benefit of Lenders. Borrower agrees that, during the continuance of an
Event of Default and at Administrative Agent's request, Borrower shall
promptly file, or cause to be filed, such applications for approval and
shall take all other and further actions required by the Administrative
Agent, on behalf and for the ratable benefit of Lenders, to obtain such
FCC approvals or consents as are necessary to transfer ownership and
control to Administrative Agent or trustee or other fiduciary acting in
lieu of Administrative Agent in order to ensure compliance with Section
310(b) of the Communications Act, on behalf and for the ratable benefit
of Lenders, or their successors or assigns, of the FCC Licenses held by
it.
SECTION 3. LETTERS OF CREDIT
3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF PARTICIPATIONS
THEREIN.
A. LETTERS OF CREDIT. In addition to Borrower requesting that Lenders
make Revolving Loans pursuant to subsection 2.1A(ii), Borrower may request, in
accordance with the provisions of this subsection 3.1, from time to time during
the period from the Closing Date to but excluding the Revolving Loan Commitment
Termination Date, that Issuing Lender issue Letters of Credit for the account of
Borrower. Subject to the terms and conditions of this Agreement and in reliance
upon the representations and warranties of Borrower herein set forth, any one or
more Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be
obligated to, issue such Letters of Credit in accordance with the provisions of
this subsection 3.1; PROVIDED that Borrower shall not request that Issuing
Lender issue (and Issuing Lender shall not issue):
(i) any Letter of Credit if, after giving effect to such
issuance, the Total Utilization of Revolving Loan Commitments would
exceed the Revolving Loan Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such
issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Letter of Credit having an expiration date later
than the earlier of (a) 30 days prior to the Stated Maturity Date and
(b) the date which is one year from the date of issuance of such
standby Letter of Credit; PROVIDED that the immediately preceding
clause (b) shall not prevent Issuing Lender from agreeing that a Letter
of Credit will automatically be extended for one or more successive
periods not to exceed one year each unless Issuing Lender elects not to
extend for any such additional period; and PROVIDED, FURTHER that
Issuing Lender shall give notice that it will not extend such Letter of
Credit if it has knowledge that an Event of Default has occurred and is
continuing (and has not been waived in accordance with subsection 10.6)
at the time Issuing Lender must elect whether or not to allow such
extension;
(iv) any Letter of Credit after the Revolving Loan Commitment
Termination Date; or
(v) any Letter of Credit denominated in a currency other than
Dollars.
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B. MECHANICS OF ISSUANCE.
(i) NOTICE OF ISSUANCE. Whenever Borrower desires the issuance
of a Letter of Credit, it shall deliver to the proposed Issuing Lender
(with a copy to Administrative Agent if Administrative Agent is not the
proposed Issuing Lender) a Notice of Issuance of Letter of Credit
substantially in the form of EXHIBIT III annexed hereto no later than
12:00 Noon (New York time) at least three Business Days, or such
shorter period as may be agreed to by the Issuing Lender in any
particular instance, in advance of the proposed date of issuance. The
Notice of Issuance of Letter of Credit shall specify (a) the proposed
date of issuance (which shall be a Business Day), (b) the face amount
of the Letter of Credit, (c) the expiration date of the Letter of
Credit, (d) the name and address of the beneficiary, and (e) the
verbatim text of the proposed Letter of Credit or the proposed terms
and conditions thereof, including a precise description of any
documents and the verbatim text of any certificates to be presented by
the beneficiary which, if presented by the beneficiary prior to the
expiration date of the Letter of Credit, would require the Issuing
Lender to make payment under the Letter of Credit; PROVIDED that the
Issuing Lender, in its reasonable discretion, may require changes in
the text of the proposed Letter of Credit or any such documents or
certificates; and PROVIDED, FURTHER that no Letter of Credit shall
require payment against a conforming draft to be made thereunder on the
same Business Day (under the laws of the jurisdiction in which the
office of the Issuing Lender to which such draft is required to be
presented is located) that such draft is presented if such presentation
is made after 12:00 Noon (New York time) on such Business Day.
Borrower shall notify the applicable Issuing Lender
(and Administrative Agent if Administrative Agent is not such Issuing
Lender) prior to the issuance of any Letter of Credit in the event that
any of the matters to which Borrower is required to certify in the
applicable Notice of Issuance of Letter of Credit is no longer true and
correct as of the proposed date of issuance of such Letter of Credit,
and upon the issuance of any Letter of Credit Borrower shall be deemed
to have re-certified, as of the date of such issuance, as to the
matters to which Borrower is required to certify in the applicable
Notice of Issuance of Letter of Credit.
(ii) DETERMINATION OF ISSUING LENDER. Upon receipt by a
proposed Issuing Lender of a Notice of Issuance of Letter of Credit
pursuant to subsection 3.1B(i) requesting the issuance of a Letter of
Credit, such proposed Issuing Lender shall promptly notify Borrower and
Administrative Agent (if such proposed Issuing Lender is not
Administrative Agent) whether or not, in its sole discretion, it has
elected to issue such Letter of Credit, and (1) if such proposed
Issuing Lender so elects to issue such Letter of Credit, it shall be
the Issuing Lender with respect thereto and (2) if such Issuing Lender
fails to so promptly notify Borrower and Administrative Agent or
declines to issue such Letter of Credit, Borrower may request another
Lender to be the Issuing Lender with respect to such Letter of Credit
in accordance with the provisions of this subsection 3.1B. If requested
to issue a Letter of Credit by the Borrower, Administrative Agent shall
be obligated to issue such Letter of Credit and shall be the Issuing
Lender with respect thereto, notwithstanding the fact that the Letter
of Credit Usage with respect to such Letter of Credit and with respect
to all other Letters of Credit issued by
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Administrative Agent, when aggregated with Administrative Agent's
outstanding Revolving Loans, may exceed Administrative Agent's
Revolving Loan Commitment then in effect.
(iii) ISSUANCE OF LETTER OF CREDIT. Upon satisfaction or
waiver (in accordance with subsection 10.6) of the conditions set forth
in subsection 4.4, Issuing Lender shall issue the requested Letter of
Credit in accordance with Issuing Lender's standard operating
procedures.
(iv) NOTIFICATION TO LENDERS. Upon the issuance of any Letter
of Credit, the applicable Issuing Lender shall promptly notify
Administrative Agent and each other Lender of such issuance, which
notice shall be accompanied by a copy of such Letter of Credit.
Promptly after receipt of such notice (or, if Administrative Agent is
the Issuing Lender, together with such notice), Administrative Agent
shall notify each Lender of the amount of such Lender's respective
participation in such Letter of Credit, determined in accordance with
subsection 3.1C.
(v) REPORTS TO LENDERS. Within 15 days after the end of each
calendar quarter ending after the Closing Date, so long as any Letter
of Credit shall have been outstanding during such calendar quarter,
each Issuing Lender shall deliver to each other Lender a report setting
forth the average for such calendar quarter of the daily maximum amount
available to be drawn under the Letters of Credit issued by Issuing
Lender that were outstanding during such calendar quarter.
C. LENDERS' PURCHASE OF PARTICIPATIONS IN LETTERS OF CREDIT.
Immediately upon the issuance of each Letter of Credit, each Lender shall be
deemed to, and hereby agrees to, have irrevocably purchased from the Issuing
Lender a participation in such Letter of Credit and drawings thereunder in an
amount equal to such Lender's Pro Rata Share of the maximum amount which is or
at any time may become available to be drawn thereunder.
3.2 LETTER OF CREDIT FEES.
Borrower agrees to pay the following amounts with respect to Letters of
Credit issued hereunder:
(i) (a) a fronting fee, payable directly to the applicable
Issuing Lender for its own account, equal to the greater of (X) $500 or
(Y) 0.125% per annum of the daily maximum amount available to be drawn
under such Letter of Credit and (b) a letter of credit fee, payable to
Administrative Agent for the account of Lenders, equal to the product
of (X) an annual rate equal to the Applicable Margin for LIBOR Rate
Loans in effect at the time of issuance of such Letter of Credit and
(Y) daily maximum amount available to be drawn under such Letter of
Credit, in each case payable in arrears on and to (but excluding) each
March 31, June 30, September 30 and December 31 of each year and
computed on the basis of a 360-day year for the actual number of days
elapsed;
(ii) with respect to the issuance, amendment or transfer of
each Letter of Credit and each payment of a drawing made thereunder
(without duplication of the fees payable under clause (i) above),
documentary and processing charges payable directly to
53
the applicable Issuing Lender for its own account in accordance with
such Issuing Lender's standard schedule for such charges in effect at
the time of such issuance, amendment, transfer or payment, as the case
may be.
Promptly upon receipt by Administrative Agent of any amount described in clause
(i)(b) of this subsection 3.2, Administrative Agent shall distribute to each
Lender its Pro Rata Share of such amount.
3.3 DRAWINGS AND REIMBURSEMENT OF AMOUNTS DRAWN UNDER LETTERS OF CREDIT.
A. RESPONSIBILITY OF ISSUING LENDER WITH RESPECT TO DRAWINGS. In
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to determine
that the documents and certificates required to be delivered under such Letter
of Credit have been delivered and that they comply on their face with the
requirements of such Letter of Credit.
B. REIMBURSEMENT BY BORROWER OF AMOUNTS DRAWN UNDER LETTERS OF CREDIT.
In the event an Issuing Lender has determined to honor a drawing under a Letter
of Credit issued by it, such Issuing Lender shall immediately notify Borrower
and Administrative Agent, and Borrower shall reimburse such Issuing Lender on or
before the Business Day immediately following the date on which such drawing is
honored (the "REIMBURSEMENT DATE") in an amount in Dollars and in same day funds
equal to the amount of such drawing; PROVIDED that, anything contained in this
Agreement to the contrary notwithstanding, (i) unless Borrower shall have
notified Administrative Agent and such Issuing Lender prior to 12:00 Noon (New
York time) on the date of such drawing that Borrower intends to reimburse such
Issuing Lender for the amount of such drawing with funds other than the proceeds
of Revolving Loans, Borrower shall be deemed to have given a timely Notice of
Borrowing to Administrative Agent requesting Lenders to make Revolving Loans
that are Base Rate Loans on the Reimbursement Date in an amount in Dollars equal
to the amount of such drawing and (ii) subject to satisfaction or waiver of the
conditions specified in subsection 4.4B, Lenders shall, on the Reimbursement
Date, make Revolving Loans that are Base Rate Loans in the amount of such
drawing, the proceeds of which shall be applied directly by Administrative Agent
to reimburse Issuing Lender for the amount of such drawing; and PROVIDED,
FURTHER that if for any reason proceeds of Revolving Loans are not received by
such Issuing Lender on the Reimbursement Date in an amount equal to the amount
of such drawing, Borrower shall reimburse such Issuing Lender, on demand, in an
amount in same day funds equal to the excess of the amount of such drawing over
the aggregate amount of such Revolving Loans, if any, which are so received.
Nothing in this subsection 3.3B shall be deemed to relieve any Lender from its
obligation to make Revolving Loans on the terms and conditions set forth in this
Agreement, and Borrower shall retain any and all rights it may have against any
Lender resulting from the failure of such Lender to make such Revolving Loans
under this subsection 3.3B.
C. PAYMENT BY LENDERS OF UNREIMBURSED DRAWINGS UNDER LETTERS OF
CREDIT.
(i) PAYMENT BY LENDERS. In the event that Borrower shall fail
for any reason to reimburse any Issuing Lender as provided in
subsection 3.3B in an amount equal to the amount of any drawing honored
by such Issuing Lender under a Letter of Credit issued
54
by it, such Issuing Lender shall promptly notify each other Lender of
the unreimbursed amount of such drawing and of such other Lender's
respective participation therein based on such Lender's Pro Rata Share.
Each Lender shall make available to such Issuing Lender an amount equal
to its respective participation, in Dollars and in same day funds, at
the office of such Issuing Lender specified in such notice, not later
than 12:00 Noon (New York time) on the first Business Day (under the
laws of the jurisdiction in which such office of such Issuing Lender is
located) after the date notified by such Issuing Lender. In the event
that any Lender fails to make available to such Issuing Lender on such
Business Day the amount of such Lender's participation in such Letter
of Credit as provided in this subsection 3.3C, such Issuing Lender
shall be entitled to recover such amount on demand from such Lender
together with interest thereon at the rate customarily used by such
Issuing Lender for the correction of errors among banks for three
Business Days and thereafter at the Base Rate. Nothing in this
subsection 3.3C shall be deemed to prejudice the right of any Lender to
recover from any Issuing Lender any amounts made available by such
Lender to such Issuing Lender pursuant to this subsection 3.3C in the
event that it is determined by the final judgment of a court of
competent jurisdiction that the payment with respect to a Letter of
Credit by such Issuing Lender in respect of which payment was made by
such Lender constituted gross negligence or willful misconduct on the
part of such Issuing Lender.
(ii) DISTRIBUTION TO LENDERS OF REIMBURSEMENTS RECEIVED FROM
BORROWER. In the event any Issuing Lender shall have been reimbursed by
other Lenders pursuant to subsection 3.3C(i) for all or any portion of
any drawing honored by such Issuing Lender under a Letter of Credit
issued by it, such Issuing Lender shall distribute to each other Lender
which has paid all amounts payable by it under subsection 3.3C(i) with
respect to such drawing such other Lender's Pro Rata Share of all
payments subsequently received by such Issuing Lender from Borrower in
reimbursement of such drawing when such payments are received. Any such
distribution shall be made to a Lender at its primary address set forth
below its name on the appropriate signature page hereof or at such
other address as such Lender may request.
D. INTEREST ON AMOUNTS DRAWN UNDER LETTERS OF CREDIT.
(i) PAYMENT OF INTEREST BY BORROWER. Borrower agrees to pay to
each Issuing Lender, with respect to drawings made under any Letters of
Credit issued by it, interest on the amount paid by such Issuing Lender
in respect of each such drawing from the date of such drawing to but
excluding the date such amount is reimbursed by Borrower (including any
such reimbursement out of the proceeds of Revolving Loans pursuant to
subsection 3.3B) at a rate equal to (a) for the period from the date of
such drawing to but excluding the Reimbursement Date, the rate then in
effect under this Agreement with respect to Revolving Loans that are
Base Rate Loans and (b) thereafter, a rate which is 2% per annum in
excess of the rate of interest otherwise payable under this Agreement
with respect to Revolving Loans that are Base Rate Loans. Interest
payable pursuant to this subsection 3.3D(i) shall be computed on the
basis of a 365-day or 366-day year, as the case may be, for the actual
number of days elapsed in the period during which it accrues and shall
be payable on demand or, if no demand is made, on the date on which the
related drawing under a Letter of Credit is reimbursed in full.
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(ii) DISTRIBUTION OF INTEREST PAYMENTS BY ISSUING LENDER.
Promptly upon receipt by any Issuing Lender of any payment of interest
pursuant to subsection 3.3D(i) with respect to a drawing under a Letter
of Credit issued by it, (a) such Issuing Lender shall distribute to
each other Lender, out of the interest received by such Issuing Lender
in respect of the period from the date of such drawing to but excluding
the date on which such Issuing Lender is reimbursed for the amount of
such drawing (including any such reimbursement out of the proceeds of
Revolving Loans pursuant to subsection 3.3B), the amount that such
other Lender would have been entitled to receive in respect of the
letter of credit fee that would have been payable in respect of such
Letter of Credit for such period pursuant to subsection 3.2 if no
drawing had been made under such Letter of Credit, and (b) in the event
such Issuing Lender shall have been reimbursed by other Lenders
pursuant to subsection 3.3C(i) for all or any portion of such drawing,
such Issuing Lender shall distribute to each other Lender which has
paid all amounts payable by it under subsection 3.3C(i) with respect to
such drawing such other Lender's Pro Rata Share of any interest
received by such Issuing Lender in respect of that portion of such
drawing so reimbursed by other Lenders for the period from the date on
which such Issuing Lender was so reimbursed by other Lenders to but
excluding the date on which such portion of such drawing is reimbursed
by Borrower. Any such distribution shall be made to a Lender at its
primary address set forth below its name on the appropriate signature
page hereof or at such other address as such Lender may request.
3.4 OBLIGATIONS ABSOLUTE.
The obligation of Borrower to reimburse each Issuing Lender for
drawings made under the Letters of Credit issued by it and to repay any
Revolving Loans made by Lenders pursuant to subsection 3.3B and the obligations
of Lenders under subsection 3.3C(i) shall be unconditional and irrevocable and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of any Letter of
Credit;
(ii) the existence of any claim, set-off, defense or other
right which Borrower or any Lender may have at any time against a
beneficiary or any transferee of any Letter of Credit (or any Persons
for whom any such transferee may be acting), any Issuing Lender or
other Lender or any other Person or, in the case of a Lender, against
Borrower, whether in connection with this Agreement, the transactions
contemplated herein or any unrelated transaction (including any
underlying transaction between Borrower or one of its Subsidiaries and
the beneficiary for which any Letter of Credit was procured);
(iii) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
(iv) payment by the applicable Issuing Lender under any Letter
of Credit against presentation of a demand, draft or certificate or
other document which does not comply with the terms of such Letter of
Credit;
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(v) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) of Borrower or
any of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document
by any party thereto;
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential Event
of Default shall have occurred and be continuing;
PROVIDED, in each case, that payment by the applicable Issuing Lender under the
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing Lender under the circumstances in question
(as determined by a final judgment of a court of competent jurisdiction).
3.5 INDEMNIFICATION; NATURE OF ISSUING LENDER'S DUTIES.
A. INDEMNIFICATION. In addition to amounts payable as provided in
subsection 3.6, Borrower hereby agrees to protect, indemnify, pay and save
harmless each Issuing Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel) which such Issuing Lender may incur
or be subject to as a consequence, direct or indirect, of (i) the issuance of
any Letter of Credit by such Issuing Lender, other than as a result of (a) the
gross negligence or willful misconduct of Issuing Lender as determined by a
final judgment of a court of competent jurisdiction or (b) subject to the
following clause (ii), the wrongful dishonor by such Issuing Lender of a proper
demand for payment made under any Letter of Credit issued by it or (ii) the
failure of such Issuing Lender to honor a drawing under any such Letter of
Credit as a result of any act or omission, whether rightful or wrongful, of any
present or future de jure or de facto government or governmental authority (all
such acts or omissions herein called "GOVERNMENTAL ACTS").
B. NATURE OF ISSUING LENDER'S DUTIES. As between Borrower and any
Issuing Lender, Borrower assumes all risks of the acts and omissions of, or
misuse of the Letters of Credit issued by such Issuing Lender by, the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation of
the foregoing, such Issuing Lender shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical
57
terms; (vi) any loss or delay in the transmission or otherwise of any document
required in order to make a drawing under any such Letter of Credit or of the
proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter
of Credit of the proceeds of any drawing under such Letter of Credit; or (viii)
any consequences arising from causes beyond the control of Issuing Lender,
including without limitation any Governmental Acts, and none of the above shall
affect or impair, or prevent the vesting of, any of Issuing Lender's rights or
powers hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first paragraph of this subsection 3.5B, any action
taken or omitted by any Issuing Lender under or in connection with the Letters
of Credit issued by it or any documents and certificates delivered thereunder,
if taken or omitted in good faith, shall not put such Issuing Lender under any
resulting liability to Borrower.
Notwithstanding anything to the contrary contained in this subsection
3.5, Borrower shall retain any and all rights it may have against any Issuing
Lender for any liability arising out of the gross negligence or willful
misconduct of such Issuing Lender, as determined by a final judgment of a court
of competent jurisdiction.
3.6 INCREASED COSTS AND TAXES RELATING TO LETTERS OF CREDIT.
In the event that any Issuing Lender or any Lender shall determine
(which determination shall, absent manifest error, be final and conclusive and
binding upon all parties hereto) that any change after the date hereof in any
law, treaty or governmental rule, regulation or order, or any change therein or
in the interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or governmental authority, in each case that
first becomes effective after the date hereof, or compliance by such Issuing
Lender or Lender with any guideline, request or directive first issued or made
after the date hereof by any central bank or other governmental or
quasi-governmental authority (whether or not having the force of law):
(i) subjects such Issuing Lender or Lender (or its applicable
lending or letter of credit office) to any additional Tax (other than
any Tax on the overall net income of such Issuing Lender or Lender)
with respect to the issuing or maintaining of any Letters of Credit or
the purchasing or maintaining of any participations therein or any
other obligations under this Section 3, whether directly or by such
being imposed on or suffered by such Issuing Lender (as determined by
such Issuing Lender);
(ii) imposes, modifies or holds applicable any reserve
(including without limitation any marginal, emergency, supplemental,
special or other reserve), special deposit, compulsory loan, FDIC
insurance or similar requirement in respect of any Letters of Credit
issued by such Issuing Lender or participations therein purchased by
any Lender; or
(iii) imposes any other condition (other than with respect to
a Tax matter) on or affecting such Issuing Lender or Lender (or its
applicable lending or letter of credit office) regarding this Section 3
or any Letter of Credit or any participation therein;
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and the result of any of the foregoing is to increase the cost to such Issuing
Lender or Lender of agreeing to issue, issuing or maintaining any Letter of
Credit or agreeing to purchase, purchasing or maintaining any participation
therein or to reduce any amount received or receivable by such Issuing Lender or
Lender (or its applicable lending or letter of credit office) with respect
thereto; then, in any case, Borrower shall pay (without duplication) to such
Issuing Lender or Lender, as applicable, within ten Business Days after its
receipt of the written statement referred to in the next sentence, such
additional amount or amounts as may be necessary to compensate such Issuing
Lender or Lender for any such increased cost or reduction in amounts received or
receivable hereunder. Such Issuing Lender or Lender shall deliver to Borrower a
written statement, setting forth in reasonable detail the basis for calculating
the additional amounts owed to such Issuing Lender or Lender under this
subsection 3.6, which statement shall be presumptively correct absent manifest
error.
SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the issuance of Letters of
Credit hereunder are subject to the satisfaction of the following conditions.
4.1 CONDITIONS TO TERM LOANS AND INITIAL REVOLVING LOANS.
The obligations of Lenders to make the Term Loans and any Revolving
Loans to be made on the Closing Date are, in addition to the conditions
precedent specified in subsection 4.3, subject to prior or concurrent
satisfaction of the following conditions:
A. OBLIGOR DOCUMENTS. On or before the Closing Date, each Obligor shall
deliver or cause to be delivered to Lenders (or to Administrative Agent for
Lenders with sufficient originally executed copies, where appropriate, for each
Lender) the following, each, unless otherwise noted, dated the Closing Date:
(i) Certified copies of its Certificate or Articles of
Incorporation, Certificate of Limited Partnership or Partnership
Agreement or Certificate of Formation and Limited Liability Company
Agreement of such Obligor together with a good standing certificate
from the Secretary of State of its state of organization and each other
state in which it is qualified to do business and owns or operates a
Station and, to the extent generally available, a certificate or other
evidence of good standing as to payment of any applicable franchise or
similar taxes from the appropriate taxing authority of each of such
states, each dated a recent date prior to the Closing Date;
(ii) Copies of its Bylaws (if applicable), certified as of the
Closing Date by its corporate secretary or an assistant secretary;
(iii) Resolutions of its Board of Directors or managing member
or general partner, as the case may be, approving and authorizing the
execution, delivery and performance of each Loan Document to which it
is to be a party, certified as of the Closing Date by its corporate
secretary or an assistant secretary as being in full force and effect
without modification or amendment;
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(iv) Signature and incumbency certificates of the officers or
managing member or general partner of such Person executing the Loan
Documents to which it is to be a party;
(v) Executed originals of (A) in the case of the Borrower this
Agreement, the Notes (duly executed in accordance with subsection 2.1D,
drawn to the order of each Lender and with appropriate insertions) and
the other Loan Documents to which it is to be a party and (B) in the
case of each other Obligor, the Loan Documents to which it is to be a
party; and
(vi) Such other similar documents as Administrative Agent may
reasonably request.
B. SECURITY INTERESTS. Each Obligor shall have taken or caused to be
taken (and Administrative Agent shall have received satisfactory evidence
thereof) such actions in such a manner so that within ten (10) days after the
Closing Date Administrative Agent shall have a valid and perfected First
Priority security interest (subject to Permitted Liens) in the Collateral owned
as of such date to the extent permitted by law and as contemplated by the
Security Documents, including, without limitation, delivery of evidence
reasonably satisfactory to Administrative Agent that all filings, recordings and
other actions Administrative Agent deems necessary or advisable to establish,
preserve and perfect the First Priority Liens granted to Administrative Agent on
behalf and for the ratable benefit of Lenders shall have been made within ten
(10) days after the Closing Date.
C. OPINIONS OF OBLIGORS' COUNSEL. Lenders shall have received
originally executed copies of one or more favorable written opinions, dated as
of the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Obligors as to the
general corporate and communications matters set forth in EXHIBIT VII and as to
such other matters as Administrative Agent may reasonably request, all in form
and substance satisfactory to Administrative Agent.
D. EVIDENCE OF INSURANCE. Administrative Agent shall have received an
insurance certificate with respect to each of the insurance policies required
pursuant to subsection 6.4 hereof, and each such insurance policy shall name
Administrative Agent as loss payee and/or additional insured, on behalf and for
the ratable benefit of Lenders.
E. FINANCIAL STATEMENTS. On or before the Closing Date, Administrative
Agent shall have received the audited consolidated financial statements of
Borrower and its Subsidiaries for the Fiscal Years ended December 31, 1999 and
the unaudited consolidated financial statements of Borrower and its
Subsidiaries, for the Fiscal Quarter ended March 31, 2000 and each calendar
month thereafter preceding the Closing Date by at least 45 days, in each case
certified as true and correct pursuant to an officer's certificate of the
Borrower.
F. BFT CONSENT LETTER. On or before the Closing Date, Administrative
Agent shall have received executed copies of the BFT Consent Letter.
G. TERMINATION OF EXISTING CREDIT AGREEMENT. On or before the Closing
Date, Borrower shall repay all principal and interest on outstanding loans and
other obligations owed
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under or related to the Existing Credit Agreement and shall terminate the
obligation to lend or make other extensions of credit to its Subsidiaries
thereunder.
H. OFFICERS CERTIFICATE. As of the Closing Date, (i) since December 31,
1999, no event or change shall have occurred that has caused or evidences,
either in any case or in the aggregate a Material Adverse Effect, (ii) no event
which would constitute an Event of Default or Potential Event of Default (after
giving effect to the consummation of the Closing Date transactions) shall have
occurred and be continuing, (iii) the representations and warranties in Section
5 hereof shall be true, correct and complete in all material respects on and as
of the Closing Date to the same extent as though made on and as of that date,
except to the extent such representations and warranties specifically relate to
an earlier date, in which case such representations or warranties shall have
been true, correct and complete in all material respects as of such date, (iv)
no litigation, inquiry or other action and no injunction or restraining order
shall be pending or threatened with respect to the making of the Loans hereunder
or the transactions contemplated hereby and (v) Borrower shall have delivered to
Administrative Agent an Officers' Certificate to such effect, in form and
substance satisfactory to Administrative Agent.
I. FEES AND EXPENSES. Borrower shall have paid to the Administrative
Agent for distribution (as appropriate) to Lenders the fees payable on the
Closing Date referred to in subsection 2.3.
J. CLOSING DATE COMPLIANCE CERTIFICATE. Borrower shall have delivered
to Administrative Agent and Lenders a Compliance Certificate in accordance with
Section 6.1(iii) prepared on a pro forma basis to give effect to the
transactions occurring on the Closing Date.
4.2 CONDITIONS TO PERMITTED ACQUISITIONS.
The obligations of Lenders to make the Term Loans and the Revolving
Loans to be made in connection with any Permitted Acquisition are, in addition
to the conditions precedent specified in subsection 4.3, subject to prior or
concurrent satisfaction of the following conditions:
A. CREDIT PARTY DOCUMENTS. On or before the Permitted Acquisition
Closing Date, each new Credit Party, if any, formed to accomplish such Permitted
Acquisition shall deliver or cause to be delivered to Lenders (or to
Administrative Agent for Lenders with sufficient originally executed copies,
where appropriate, for each Lender) the following, each, unless otherwise noted,
dated as of the Permitted Acquisition Closing Date:
(i) Certified copies of its Certificate or Articles of
Incorporation, Certificate of Limited Partnership or Partnership
Agreement or Certificate of Formation and Limited Liability Company
Agreement, together with a good standing certificate from the Secretary
of State of its state of incorporation and each other state in which it
is qualified as a foreign corporation to do business and owns or
operates a Station and, to the extent generally available, a
certificate or other evidence of good standing as to payment of any
applicable franchise or similar taxes from the appropriate taxing
authority of each of such states, each dated a recent date prior to the
Permitted Acquisition Closing Date;
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(ii) Copies of its Bylaws (if applicable), certified as of the
Permitted Acquisition Closing Date by its corporate secretary or an
assistant secretary;
(iii) Resolutions of its Board of Directors or managing member
or general partners, as the case may be, approving and authorizing the
execution, delivery and performance of each Loan Document to which it
is to be a party, certified as of the Permitted Acquisition Closing
Date by its corporate secretary or an assistant secretary as being in
full force and effect without modification or amendment;
(iv) Signature and incumbency certificates of the officers or
managing member or general partner of such Person executing the Loan
Documents to which it is to be a party;
(v) Executed originals of the Loan Documents to which it is to
be a party; and
(vi) Such other similar documents as Administrative Agent may
reasonably request.
B. SECURITY INTERESTS. Each applicable Obligor shall have taken or
caused to be taken (and Administrative Agent shall have received satisfactory
evidence thereof) such actions in such a manner so that within ten (10) days
after the applicable Permitted Acquisition Closing Date, Administrative Agent
shall have a valid and perfected First Priority security interest (subject to
Permitted Liens) as of such date in substantially all of the Collateral acquired
as of the applicable Permitted Acquisition Closing Date to the extent permitted
by law and as contemplated by the Security Documents, including, without
limitation, delivery of all evidence reasonably satisfactory to Administrative
Agent that all filings, recordings and other actions Administrative Agent deems
necessary or advisable to establish, preserve and perfect the First Priority
Liens granted to Administrative Agent on behalf and for the ratable benefit of
Lenders shall have been made within ten (10) days after the Permitted
Acquisition Closing Date.
C. PERMITTED ACQUISITION DOCUMENTS. Administrative Agent shall have
received executed or conformed copies of the Permitted Acquisition Documents and
any amendments thereto on or prior to the Permitted Acquisition Closing Date.
D. ACQUISITION FCC CONSENT. The Acquisition FCC Consent with respect to
the Acquired Stations shall have been obtained and, in the event such
Acquisition FCC Consent shall have been challenged or contested by any Person,
such Acquisition FCC Consent shall have become a Final Order.
E. PERMITTED ACQUISITION. The Permitted Acquisition shall become
effective on the Permitted Acquisition Closing Date in accordance with Permitted
Acquisition Documents without any material variation therefrom, except as
disclosed to Lenders and consented to in writing by Administrative Agent.
F. OPINIONS OF OBLIGORS' COUNSEL. Lenders shall have received
originally executed copies of one or more favorable written opinions, dated as
of the Permitted Acquisition Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the
Obligors affected by the Permitted Acquisition reasonably satisfactory to
Administrative Agent, in form and substance reasonably satisfactory to
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Administrative Agent and setting forth substantially the matters in the opinions
designated in EXHIBIT VII annexed hereto as to collateral and communications
matters resulting from such Permitted Acquisition and as to any new Obligors or
Loan Documents required for such Permitted Acquisition, and as to such other
matters as Administrative Agent may reasonably request, all in form and
substance satisfactory to Administrative Agent.
G. DELIVERY OF COMPLIANCE CERTIFICATE. Borrower shall have delivered to
Agent a Compliance Certificate, substantially in the form of Exhibit VI annexed
hereto, dated as of the Permitted Acquisition Closing Date and calculated to
give effect to the funding of any Loans under this Agreement on the Permitted
Acquisition Closing Date, demonstrating compliance with the covenants set forth
in this Agreement as of the Permitted Acquisition Closing Date.
4.3 CONDITIONS TO ALL LOANS.
The obligations of Lenders to make Loans on each Funding Date are
subject to the following further conditions precedent:
A. Administrative Agent shall have received before that Funding Date,
in accordance with the provisions of subsection 2.1B, an originally executed
Notice of Borrowing, in each case signed by the president, chief financial
officer, treasurer or other senior officer of the Borrower on behalf of the
Borrower in a writing delivered to Administrative Agent.
B. As of that Funding Date:
(i) The representations and warranties contained herein and in
the other Loan Documents shall be true, correct and complete in all
material respects on and as of that Funding Date to the same extent as
though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date,
in which case such representations and warranties shall have been true,
correct and complete in all material respects on and as of such earlier
date (or previously waived in accordance with this Agreement); and
(ii) No event shall have occurred and be continuing or would
result from the consummation of the borrowing contemplated by such
Notice of Borrowing that would constitute an Event of Default or a
Potential Event of Default.
4.4 CONDITIONS TO LETTERS OF CREDIT.
The issuance of any Letter of Credit hereunder is subject to the
following conditions precedent:
A. On or before the date of issuance of such Letter of Credit,
Administrative Agent shall have received, in accordance with the provisions of
subsection 3.1B(i), an originally executed Notice of Issuance of Letter of
Credit, in each case signed by the president, chief financial officer, treasurer
or other senior officer of Borrower on behalf of Borrower in a writing delivered
to Administrative Agent, together with all other information specified in
subsection 3.1B(i) and such other documents or information as the applicable
Issuing Lender may reasonably require in connection with the issuance of such
Letter of Credit.
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B. On the date of issuance of such Letter of Credit, all conditions
precedent described in subsection 4.3B shall be satisfied to the same extent as
if the issuance of such Letter of Credit were the making of a Revolving Loan and
the date of issuance of such Letter of Credit were a Funding Date.
SECTION 5. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make the
Loans, to induce Issuing Lenders to issue Letters of Credit and to induce other
Lenders to purchase participations therein, Borrower represents and warrants to
each Lender, on the date of this Agreement, on each Funding Date and on the date
of issuance of each Letter of Credit, that the following statements are true,
correct and complete in all material respects:
5.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING, BUSINESS AND
SUBSIDIARIES.
A. ORGANIZATION AND POWERS. Each Obligor is a corporation, limited
liability company, partnership or limited partnership duly organized, validly
existing and in good standing under the laws of its state of organization. Each
Obligor has all requisite corporate, partnership or limited partnership power
and authority to own and operate its properties, to carry on its business as now
conducted and as proposed to be conducted, to enter into the Loan Documents and
to carry out the transactions contemplated thereby.
B. QUALIFICATION AND GOOD STANDING. Each Credit Party is qualified to
do business and in good standing in every jurisdiction where its assets are
located and wherever necessary to carry out its business and operations, except
in jurisdictions where the failure to be so qualified or in good standing will
not have a Material Adverse Effect.
C. CONDUCT OF BUSINESS. The Credit Parties hold all licenses
(including, without limitation, FCC Licenses), permits, franchises, certificates
of authority, or any waivers of the foregoing that are necessary to permit them
to conduct their respective businesses as now conducted and to hold and operate
their respective properties and all such licenses, permits, franchises,
certificates of authority, and waivers are valid and in full force and effect,
except in each case where the failure to be so will not have a Material Adverse
Effect.
D. SUBSIDIARIES. All of the Subsidiaries of Borrower as of the date of
this Agreement are identified in SCHEDULE 5.1D annexed hereto. The equity
interests of each Subsidiary of Borrower as of the Closing Date are duly
authorized, validly issued, fully paid and nonassessable and none of such equity
interests constitutes Margin Stock. SCHEDULE 5.1D annexed hereto correctly sets
forth, as of the Closing Date, the ownership interest of each Obligor in such
Obligor's Subsidiaries.
E. FCC AND STATION MATTERS.
(i) SCHEDULE 5.1E annexed hereto correctly describes, as of
the Closing Date, each of the radio broadcast stations owned by any
Credit Party.
(ii) SCHEDULE 5.1E correctly sets forth, as of the Closing
Date, all of the FCC Licenses (other than auxiliary service licenses)
held by each Credit Party and its
64
Subsidiaries and correctly sets forth the termination date, if any, of
each such FCC License. Each FCC License was duly and validly issued by
the FCC pursuant to procedures which comply with all requirements of
applicable law and no Credit Party has any knowledge of the occurrence
of any event or the existence of any circumstance which, in the
reasonable judgment of such Credit Party, is likely to lead to the
revocation of any FCC License which could have a Material Adverse
Effect. The Credit Parties have the right to use all material FCC
Licenses required in the ordinary course of business for the Stations
and each such FCC License is in full force and effect and the Credit
Parties are in substantial compliance therewith with no known conflict
with the valid rights of others in each case where such failure,
compliance or violation could have a Material Adverse Effect. No event
has occurred which permits, or after notice or lapse of time or both
would permit, the revocation, modification or restriction of any FCC
License or other right which could have a Material Adverse Effect. Each
FCC License is held by the License Sub of the Borrower directly
operating the Station with respect to which such FCC License was
issued.
(iii) Each Credit Party has duly filed in a timely manner all
filings which are required to be filed by such Credit Party under the
Communications Act and is in all material respects in compliance with
the Communications Act, including, without limitation, the rules and
regulations of the FCC relating to the broadcast of radio signals, in
each case where the failure to do so could have a Material Adverse
Effect.
(iv) None of the Facilities (including without limitation, the
transmitter and tower sites owned or used by any Credit Party) violate
in any material respect the provisions of any applicable building
codes, fire regulations, building restrictions or other governmental
ordinances, orders or regulations and each such Facility is zoned so as
to permit the commercial uses intended by the owner or occupier thereof
and there are no outstanding variances or special use permits
materially affecting any of the Facilities or the uses thereof, in each
case where so doing or the failure to do so, as the case may be, could
have a Material Adverse Effect.
(v) SCHEDULE 5.1E(V) annexed hereto correctly sets forth, as
of the Closing Date, each of the LMAs for Borrower or any of its
Subsidiaries. Each LMA is in full force and effect, in compliance with
the Communications Act, and Borrower and its Subsidiaries are in
substantial compliance with such LMA to the extent each is a party
thereto, in each case where failure to be in compliance could have a
Material Adverse Effect.
F. COLLATERAL MATTERS. Other than as may be supplemented by written
notices delivered to Administrative Agent pursuant to the Credit Parties
Security Agreement or the Holdings Pledge Agreement:
(i) the chief executive office and principal place of business
of each Obligor is as set forth in Part One of SCHEDULE 5.1F annexed
hereto;
(ii) the office where each Credit Party keeps its records
concerning Accounts (as defined in the Credit Parties Security
Agreement) and all originals of all chattel paper
65
which evidence any Accounts are located at the addresses specified for
such Credit Party in Part Two of SCHEDULE 5.1F annexed hereto;
(iii) the location where each Credit Party keeps any Inventory
(as defined in the Credit Parties Security Agreement) is at the address
specified for such Credit Party in Part Three of SCHEDULE 5.1F annexed
hereto;
(iv) other than as set forth in Part Four of SCHEDULE 5.1F
annexed hereto, no Credit Party does any business under any fictitious
business names or tradenames or has done business under any fictitious
business names or tradenames during the preceding five years.
G. PERSONAL PROPERTY LIENS. As of the Closing Date, upon the filing of
Uniform Commercial Code financing statements naming each Credit Party as
"debtor", naming Administrative Agent as "secured party" and describing the
Collateral (as defined in the Credit Parties Security Agreement) in the filing
offices set forth in Part Five of SCHEDULE 5.1F annexed hereto, the security
interests in such Collateral granted to Administrative Agent for the benefit of
Lenders will, to the extent a security interest in such Collateral may be
perfected by filing Uniform Commercial Code financing statements, constitute
valid and perfected security interests therein prior to all other Liens (other
than Permitted Liens) to the extent contemplated by the Security Documents. The
Pledged Collateral (as defined in each of the Credit Parties Security Agreement
and the Holdings Pledge Agreement) has been duly and validly pledged to
Administrative Agent on behalf of Lenders pursuant to the Credit Parties
Security Agreement or the Holdings Pledge Agreement, and the Credit Parties
Security Agreement and the Holdings Credit Agreement each create in favor of
Administrative Agent on behalf of Lenders a valid, perfected First Priority Lien
in the Pledged Collateral as respectively defined therein as security for the
Secured Obligations (as such term is defined in the Credit Parties Security
Agreement or the Holdings Pledge Agreement), subject to no equal or prior
security interest (other than Permitted Liens), to the extent contemplated by
the Security Documents.
5.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION. The execution, delivery and performance of the Loan
Documents have been duly authorized by all necessary corporate action on the
part of each Obligor a party thereto.
B. NO CONFLICT. The execution, delivery and performance by each Obligor
of the Loan Documents to which such Obligor is a party, and the consummation of
the transactions contemplated thereby do not and will not (i) violate any
provision of any law or any governmental rule or regulation applicable to any
Obligor, the Certificate or Articles of Incorporation, Partnership Agreement,
Certificate of Formation, Limited Liability Company Agreement or Bylaws of any
Obligor or any order, judgment or decree of any court or other agency of
government binding on any Obligor, (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of any Obligor, (iii) result in or require the creation
or imposition of any Lien upon any of the properties or assets of any Obligor
(other than any Liens created under any of the Loan Documents in favor of
Administrative Agent on behalf and for the ratable benefit of Lenders), or
66
(iv) require any approval of stockholders or any approval or consent of any
Person under any Contractual Obligation of any Obligor, except for such
approvals or consents which will be obtained on or before the Closing Date and
disclosed in writing to Lenders.
C. GOVERNMENTAL CONSENTS. The execution, delivery and performance by
each Obligor of the Loan Documents to which it is party and the consummation of
the transactions contemplated thereby do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other governmental authority or regulatory
body including, without limitation, the FCC, EXCEPT for filings required in
connection with the perfection of the security interests or the exercise of the
rights granted pursuant to the Security Documents and filings required with the
FCC in connection with the Acquisitions contemplated by the Permitted
Acquisition Documents.
D. BINDING OBLIGATION. Each of the Loan Documents has been duly
executed and delivered by each Obligor a party thereto and is the legally valid
and binding obligation of each such Obligor, enforceable against each such
Obligor in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
5.3 FINANCIAL CONDITION.
Borrower has heretofore delivered to Lenders, at Lenders' request, the
financial statements described in subsection 4.1E. All such statements were
prepared in conformity with GAAP and fairly present the financial position (on a
consolidated basis) of the entities described in such financial statements as at
the respective dates thereof and the results of operations and cash flows (on a
consolidated basis) of the entities described therein for each of the periods
then ended, subject, in the case of any such unaudited financial statements, to
changes resulting from audit and normal year-end adjustments and the absence of
footnotes. Borrower and its Subsidiaries do not have any Contingent Obligation,
contingent liability or liability for taxes, long-term lease or unusual forward
or long-term commitment that is not reflected in the foregoing financial
statements or the notes thereto and is required to be so reflected on such
financial statements under GAAP and which in any such case is material in
relation to the business, operations, properties, assets, condition (financial
or otherwise) of Borrower and its Subsidiaries (taken as a whole).
5.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED JUNIOR PAYMENTS.
Since December 31, 1999, no event or change has occurred that has
caused or evidences a Material Adverse Effect.
5.5 TITLE TO PROPERTIES; LIENS.
The Credit Parties have (i) good, sufficient and legal title to (in the
case of fee interests in real property), (ii) valid leasehold interests in (in
the case of leasehold interests in real or personal property), or (iii) good
title to (in the case of all other personal property), all of their respective
material properties and assets reflected in the financial statements referred to
in subsection 5.3 or in the most recent financial statements delivered pursuant
to subsection 6.1, in each case except for assets disposed of since the date of
such financial statements in the ordinary
67
course of business or as otherwise permitted under subsection 7.7. Except for
Permitted Liens, all such properties and assets are free and clear of Liens.
5.6 LITIGATION; ADVERSE FACTS.
There are no actions, suits, proceedings, arbitrations or governmental
investigations (whether or not purportedly on behalf of any Credit Party) at law
or in equity or before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, including, without limitation, the FCC, pending or, to the knowledge of
any Credit Party, threatened against or affecting any Credit Party or any
property of any Credit Party that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. No Credit Party
is (i) in violation of any applicable laws that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect
or (ii) subject to or in default with respect to any final judgments, writs,
injunctions, decrees, rules or regulations of any court or any federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect.
5.7 PAYMENT OF TAXES.
Except to the extent permitted by subsection 6.3, all tax returns and
reports of each Credit Party required to be filed by any of them have been
timely filed, and all material taxes, assessments, fees and other governmental
charges shown thereon to be due and owing by any such Credit Party and upon its
properties, assets, income, businesses and franchises which are due and payable
have been paid. No Credit Party knows of any proposed tax assessment against any
Credit Party or any of its Subsidiaries which is not being actively contested by
such Credit Party or Subsidiary in good faith and by appropriate proceedings;
PROVIDED that such reserves or other appropriate provisions, if any, as shall be
required in conformity with GAAP shall have been made or provided therefor.
5.8 GOVERNMENTAL REGULATION.
No Credit Party is subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the Interstate Commerce Act
or the Investment Company Act of 1940 or under any other federal or state
statute or regulation which may limit its ability to incur or repay
Indebtedness.
5.9 SECURITIES ACTIVITIES.
A. No Credit Party is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying any Margin Stock.
B. Following application of the proceeds of each Loan, not more than
25% of the value of the assets (either of a Credit Party alone or of a Credit
Party together with its Subsidiaries on a consolidated basis) subject to the
provisions of subsection 7.2 or 7.7 or subject to any restriction contained in
any agreement or instrument, between Borrower and any Lender
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or any Affiliate of any Lender, relating to Indebtedness and within the scope of
subsection 7.2, will be Margin Stock.
5.10 EMPLOYEE BENEFIT PLANS.
A. Each Credit Party and each of its ERISA Affiliates are in compliance
in all material respects with all applicable provisions and requirements of
ERISA and the regulations and published interpretations thereunder with respect
to each Employee Benefit Plan, and have performed in all material respects all
their obligations under each Employee Benefit Plan in each case where the
failure to do so could not reasonably be expected to result in a Material
Adverse Effect.
B. No ERISA Event has occurred or is reasonably expected to occur which
could reasonably be expected to result in a Material Adverse Effect or Event of
Default.
C. Except to the extent required under Section 4980B of the Internal
Revenue Code, no Employee Benefit Plan provides health or welfare benefits
(through the purchase of insurance or otherwise) for any retired or former
employees of any Credit Party or any of its ERISA Affiliates.
D. As of the most recent valuation date for any Pension Plan, the
amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities), does not exceed $100,000.
5.11 CERTAIN FEES.
As of the Closing Date, no broker's or finder's fee or commission will
be payable with respect to this Agreement or any of the transactions
contemplated hereby.
5.12 ENVIRONMENTAL PROTECTION.
Except as set forth in SCHEDULE 5.12 annexed hereto:
(i) the operations of each Credit Party (including, without
limitation, all operations and conditions at or in the Facilities)
comply with all Environmental Laws except where the failure to so
comply could not reasonably be expected to have a Material Adverse
Effect;
(ii) except where the failure to so comply could not
reasonably be expected to have a Material Adverse Effect, each Credit
Party has obtained all Governmental Authorizations under Environmental
Laws necessary to its operations, and all such Governmental
Authorizations are in good standing, and each Credit Party is in
material compliance with all material terms and conditions of such
Governmental Authorizations;
(iii) except as could not reasonably be expected to have a
Material Adverse Effect, no Credit Party has received (a) any written
notice or claim to the effect that it is or may be liable to any Person
as a result of or in connection with any Hazardous
69
Materials or (b) any letter or written request for information under
Section 104 of the Comprehensive Environmental Response, Compensation,
and Liability Act (42 U.S.C. ss. 9604) or any comparable state laws,
and, to the best of each Credit Party's knowledge, none of the
operations of any Credit Party is the subject of any federal or state
investigation relating to or in connection with any Hazardous Materials
at any Facility or at any other location;
(iv) none of the operations of any Credit Party is subject to
any judicial or administrative proceeding alleging the violation of or
liability under any Environmental Laws which if adversely determined
could reasonably be expected to have a Material Adverse Effect;
(v) no Credit Party nor any of its Facilities or operations
are subject to any outstanding written order or agreement with any
governmental authority or private party relating to any Environmental
Laws or any Environmental Claims, that could reasonably be expected to
have a Material Adverse Effect;
(vi) no Credit Party, to its best knowledge, has any
contingent liability in connection with any Release of any Hazardous
Materials by such Credit Party or any of its Subsidiaries that could
reasonably be expected to have a Material Adverse Effect;
(vii) no Credit Party nor, to the best knowledge of each
Credit Party, any predecessor of such Credit Party or its Subsidiaries
has filed any notice under any Environmental Law indicating past or
present treatment or Release of Hazardous Materials at any Facility,
and none of any Credit Party's or any of its Subsidiaries' operations
involves the generation, transportation, treatment, storage or disposal
of hazardous waste, as defined under 40 C.F.R. Parts 260-270 or any
state equivalent, in each case, that could reasonably be expected to
have a Material Adverse Effect;
(viii) no Hazardous Materials exist on, under or about any
Facility in a manner that has a reasonable possibility of giving rise
to an Environmental Claim having a Material Adverse Effect, and no
Credit Party has filed any notice or report of a Release of any
Hazardous Materials that has a reasonable possibility of giving rise to
an Environmental Claim having a Material Adverse Effect;
(ix) no Credit Party and, to the best knowledge of each Credit
Party, none of its predecessors has disposed of any Hazardous Materials
in a manner that has a reasonable possibility of giving rise to an
Environmental Claim having a Material Adverse Effect; and
(x) no underground storage tanks or surface impoundments are
on or at any Facility which have a reasonable possibility of giving
rise to an Environmental Claim having a Material Adverse Effect.
5.13 EMPLOYEE MATTERS.
There is no strike or work stoppage in existence or threatened
involving any Credit Party that could reasonably be expected to have a Material
Adverse Effect.
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5.14 SOLVENCY.
Each Credit Party is and, upon the incurrence of any Obligations by
such Credit Party on any date on which this representation is made, will be,
Solvent.
5.15 INSURANCE.
Each Credit Party maintains, with, to its knowledge, financially sound
and reputable insurers, insurance with respect to its properties and business
and the properties and business of its Subsidiaries, against loss or damage of
the kinds customarily insured against by corporations of established reputation
engaged in the same or similar business of such types and in such amounts as are
customarily carried under similar circumstances by such other corporations.
5.16 DISCLOSURE.
No representation or warranty of any Obligor contained in any Loan
Document or in any other document, certificate or written statement furnished to
Lenders by or on behalf of such Obligor or its Subsidiaries for use in
connection with the transactions contemplated by this Agreement contains any
untrue statement of a material fact or omits to state a material fact (known to
such Obligor, in the case of any document not furnished by it) necessary in
order to make the statements contained herein or therein not misleading in light
of the circumstances in which the same were made. Any projections and pro forma
financial information contained in such materials are based upon good faith
estimates and assumptions believed by each Obligor to be reasonable at the time
made, it being recognized by Lenders that such projections as to future events
are not to be viewed as facts and that actual results during the period or
periods covered by any such projections may differ from the projected results.
There are no facts known to any Obligor (other than matters of a general
economic nature) that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect and that have not been disclosed
herein or in such other documents, certificates and statements furnished to
Lenders for use in connection with the transactions contemplated hereby.
SECTION 6. BORROWER'S AFFIRMATIVE COVENANTS
Borrower covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Borrower shall perform, and shall cause each other Credit Party to perform, all
covenants in this Section 6.
6.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Borrower will maintain, and cause each of its Subsidiaries to maintain,
a system of accounting established and administered in accordance with sound
business practices to permit preparation of financial statements in conformity
with GAAP. Borrower will deliver to Administrative Agent for distribution to
Lenders, and Administrative Agent will deliver to each Lender promptly upon
receipt:
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(i) QUARTERLY FINANCIALS: as soon as available and in any
event within 60 days after the end of each Fiscal Quarter, (a) the Form
10-Q filed by Holdings with the Securities and Exchange Commission for
such Fiscal Quarter and (b) a consolidated cash flow statement of
Borrower and its Subsidiaries for such Fiscal Quarter and for the
period from the beginning of the then current Fiscal Year to the end of
such Fiscal Quarter (including combining cash flow information for each
Station), all in reasonable detail and certified by the chief financial
officer of Borrower that they fairly present, in all material respects,
the financial condition of Borrower and its Subsidiaries as at the
dates indicated and the results of operations and their cash flows for
the periods indicated, subject to changes resulting from audit and
normal year-end adjustments;
(ii) YEAR-END FINANCIALS: as soon as available and in any
event within 120 days after the end of each Fiscal Year, (a) the Form
10-K filed by Holdings with the Securities and Exchange Commission for
such Fiscal Year, (b) a consolidated statement of cash flow of Borrower
and its Subsidiaries for such Fiscal Year (including combining cash
flow information for each Station), all in reasonable detail and
certified by the chief financial officer of Borrower that they fairly
present, in all material respects, the financial condition of Borrower
and its Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated and (c) in
the case of such consolidated financial statements, a report thereon of
KPMG Peat Marwick or other independent certified public accountants of
recognized national standing selected by Borrower and satisfactory to
Administrative Agent, which report shall be unqualified as to scope of
audit, shall express no doubts about the ability of Borrower and its
Subsidiaries to continue as a going concern, and shall state that such
consolidated financial statements fairly present, in all material
respects, the consolidated financial position of Borrower and its
Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated in conformity
with GAAP applied on a basis consistent with prior years (except as
otherwise disclosed in such financial statements) and that the
examination by such accountants in connection with such consolidated
financial statements has been made in accordance with generally
accepted auditing standards;
(iii) COMPLIANCE CERTIFICATES: together with each delivery of
financial statements of Borrower and its Subsidiaries pursuant to
subdivisions (i) and (ii) above, beginning with the fiscal period
ending September 30, 2000, a Compliance Certificate demonstrating in
reasonable detail compliance during and at the end of the applicable
accounting periods with the restrictions contained in Section 7;
(iv) RECONCILIATION STATEMENTS: if, as a result of any change
in accounting principles and policies from those used in the
preparation of the audited financial statements referred to in
subsection 5.3, the consolidated financial statements of Borrower and
its Subsidiaries delivered pursuant to subdivisions (i) and (ii) of
this subsection 6.1 will differ in any material respect from the
consolidated financial statements that would have been delivered
pursuant to such subdivisions had no such change in accounting
principles and policies been made, then (a) together with the first
delivery of financial statements pursuant to subdivision (i) and (ii)
of this subsection 6.1 following such change, consolidated financial
statements of Borrower and its
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Subsidiaries for (y) the current Fiscal Year to the effective date of
such change and (z) the two full Fiscal Years immediately preceding the
Fiscal Year in which such change is made, in each case prepared on a
pro forma basis as if such change had been in effect during such
periods, and (b) together with each delivery of financial statements
pursuant to subdivision (i) and (ii) of this subsection 6.1 following
such change, a written statement of the chief financial officer of
Borrower setting forth the differences which would have resulted if
such financial statements had been prepared without giving effect to
such change;
(v) SEC & FCC FILINGS AND PRESS RELEASES: promptly upon their
becoming available, copies of (a) all regular and periodic reports and
all registration statements (other than on Form S-8 or a similar form)
and prospectuses, if any, filed by any Obligor with any securities
exchange or with the Securities and Exchange Commission or any
governmental or private regulatory authority, including, without
limitation, the filing of any Form 10-K or Form 10-Q by Holdings, (b)
if requested by any Lender, copies of all material information required
to be filed by any Obligor with the FCC and (c) all material press
releases and other statements made available generally by any Obligor
to the public concerning material developments in the business of any
Obligor;
(vi) EVENTS OF DEFAULT, ETC.: promptly upon any senior officer
of any Credit Party obtaining knowledge of any condition or event that
constitutes an Event of Default or Potential Event of Default, or
becoming aware that any Lender has given any notice to any Credit Party
with respect to a claimed Event of Default or Potential Event of
Default, an Officers' Certificate specifying the nature of such claimed
Event of Default, Potential Event of Default, default, event or
condition, and what action such Credit Party has taken, is taking and
proposes to take with respect thereto;
(vii) LITIGATION OR OTHER PROCEEDINGS: promptly upon any
senior officer of any Credit Party obtaining knowledge of (a) the
institution of any action, suit, proceeding (whether administrative,
judicial or otherwise), governmental investigation or arbitration
against or affecting any Credit Party or any property of any Credit
Party (collectively, "PROCEEDINGS") not previously disclosed in writing
by the Credit Parties to Lenders or (b) any material development in any
Proceeding that, in any case:
(1) has a reasonable possibility of giving
rise to a Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain
relief as a result of, the transactions contemplated
hereby;
written notice thereof together with such other non-privileged
information as may be reasonably available to the Credit Parties to
enable Lenders evaluate such matters;
(viii) ERISA EVENTS: promptly upon becoming aware of the
occurrence of any ERISA Event, a written notice specifying the nature
thereof, what action the Credit Parties or any of their ERISA
Affiliates have taken, are taking or propose to take with
73
respect thereto and, when known, any action taken or threatened by the
Internal Revenue Service, the Department of Labor or the PBGC with
respect thereto;
(ix) ERISA NOTICES: with reasonable promptness, copies of (a)
each SCHEDULE B (Actuarial Information) to the annual report (Form 5500
Series) filed by any Credit Party or any of its ERISA Affiliates with
the Internal Revenue Service with respect to each Pension Plan; (b) all
notices received by any Credit Party or any of its ERISA Affiliates
from a Multiemployer Plan sponsor concerning an ERISA Event; and (c)
such other documents or governmental reports or filings relating to any
Employee Benefit Plan as Administrative Agent shall reasonably request;
(x) FINANCIAL PLANS: as soon as practicable and in any event
no later than 30 days after the end of any Fiscal Year, a consolidated
plan and financial forecast for the next Fiscal Year (the "FINANCIAL
PLAN" for such Fiscal Year), including (a) forecasted consolidated
statements of income and cash flows of Borrower and its Subsidiaries
for such Fiscal Year (including combining income and cash flow
information for each Station), together with an explanation of the
assumptions on which such forecasts are based and (b) forecasted
consolidated statements of income and cash flows of Borrower and its
Subsidiaries for each month of such Fiscal Year (including combining
income and cash flow information for each Station), together with an
explanation of the assumptions on which such forecasts are based;
(xi) ENVIRONMENTAL AUDITS AND REPORTS: to the extent received
by Borrower or any of its Subsidiaries and as soon as practicable
following receipt thereof, copies of all environmental audits and
reports, whether prepared by personnel of Borrower or any of its
Subsidiaries or by independent consultants, with respect to significant
environmental matters at any Facility or which relate to an
Environmental Claim which could result in a Material Adverse Effect;
and
(xii) OTHER INFORMATION: with reasonable promptness, such
other information and data with respect to any Credit Party or any of
its Affiliates as from time to time may be reasonably requested by any
Lender. Without limiting the foregoing, in the event Holdings owns an
interest in any Subsidiary other than a Credit Party, or engages in any
business other than ownership of the Credit Parties and the businesses
that Holdings is engaged in as of the date hereof (and activities
incidental thereto) then in addition to the financial information
required by subsections 6.1(i) and (ii) above, Borrower shall deliver
such financial information as any Lender may reasonably request to
supplement the Form 10-Qs and Form 10-Ks, delivered by Holdings to
fairly present the information contained therein as it pertains solely
to the Credit Parties.
6.2 CORPORATE EXISTENCE, ETC.
Except as permitted under subsection 7.7, each Credit Party will, and
will cause each of its Subsidiaries to, at all times preserve and keep in full
force and effect its corporate existence and all of their respective rights and
franchises in each case where the failure to do so could reasonably be expected
to result in a Material Adverse Effect.
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6.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION.
A. Each Credit Party will, and will cause each of its Subsidiaries to,
pay all material taxes, assessments and other governmental charges imposed upon
it or any of its properties or assets or in respect of any of its income,
businesses or franchises before any penalty accrues thereon, and all claims
(including, without limitation, claims for labor, services, materials and
supplies) for sums that have become due and payable and that by law have or may
become a Lien upon any of its properties or assets, prior to the time when any
penalty or fine shall be incurred with respect thereto; PROVIDED that (i) such
taxes and charges not in excess of $5,000,000 in the aggregate need not be paid
until ten (10) Business Days after the date due and (ii) no such charge or claim
need be paid if being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted and if such reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made therefor.
B. No Credit Party will file or consent to the filing of any combined
income tax return with any Person (other than the other Credit Parties and
Holdings).
6.4 MAINTENANCE OF PROPERTIES; INSURANCE.
Each Credit Party will, and will cause each of its Subsidiaries to,
maintain or cause to be maintained in good repair, working order and condition,
ordinary wear and tear excepted, all material properties used or useful in the
business of such Credit Party and its Subsidiaries and from time to time will
make or cause to be made appropriate repairs, renewals and replacements thereof
unless the applicable Credit Party determines in good faith that the maintenance
of such property is not necessary for the conduct of its business. Each Credit
Party will maintain or cause to be maintained, with financially sound and
reputable insurers, insurance with respect to its properties and business and
the properties and businesses of its Subsidiaries against loss or damage of the
kinds customarily carried or maintained under similar circumstances by
corporations of established reputation engaged in similar businesses. Each such
policy of insurance shall name Administrative Agent as the loss payee and/or
additional insured thereunder, for the ratable benefit of Lenders, and shall
provide for at least 30 days prior written notice to Administrative Agent of any
material modification or cancellation of such policy.
6.5 INSPECTION; LENDER MEETING.
Subject to subsection 10.19, each Credit Party shall, and shall cause
each of its Subsidiaries to, permit any authorized representatives designated by
any Lender to visit and inspect any of the properties of such Credit Party or
any of its Subsidiaries, including its and their financial and accounting
records, and to make copies and take extracts therefrom, and to discuss their
affairs, finances and accounts with its and their officers and independent
public accountants (provided that such Credit Party may, if it so chooses, be
present at or participate in any such discussion), all without material
disruption to the business of any Credit Party and upon reasonable notice and at
such reasonable times during normal business hours and as often as may be
reasonably requested. Without in any way limiting the foregoing, each Credit
Party will, upon the request of Administrative Agent or Requisite Lenders,
participate in a meeting of Administrative Agent and Lenders once during each
Fiscal Year to be held at such Credit Party's corporate offices (or such other
location as may be agreed to by such Credit Party and
75
Administrative Agent) at such time as may be agreed to by such Credit Party and
Administrative Agent.
6.6 COMPLIANCE WITH LAWS, ETC.
Each Credit Party shall, and shall cause each of its Subsidiaries to,
comply with the requirements of all applicable laws, rules, regulations and
orders of any governmental authority, noncompliance with which could reasonably
be expected to cause a Material Adverse Effect.
6.7 ENVIRONMENTAL DISCLOSURE AND INSPECTION.
A. Each Credit Party shall, and shall cause each of its Subsidiaries
to, exercise all reasonable due diligence in order to comply with all
Environmental Laws in each case where the failure to do so could reasonably be
expected to result in a Material Adverse Effect.
B. Each Credit Party agrees that Administrative Agent may, after the
occurrence and during the continuation of an Event of Default or Potential Event
of Default, from time to time and in its reasonable discretion, retain an
independent professional consultant to review any report relating to Hazardous
Materials prepared by or for such Credit Party and to conduct its own
investigation of any Facility currently owned, leased, operated or used by such
Credit Party or any of its Subsidiaries, and each Credit Party agrees to use its
best efforts to obtain permission for Administrative Agent's professional
consultant to conduct its own investigation of any Facility previously owned,
leased, operated or used by such Credit Party or any of its Subsidiaries. Each
Credit Party agrees to pay all reasonable fees, costs, expenses incurred by
Administrative Agent's professional consultant hereunder. Each Credit Party
hereby grants to Administrative Agent and its agents, employees, consultants and
contractors the right to enter into or on to the Facilities currently owned,
leased, operated or used by such Credit Party or any of its Subsidiaries to
perform such tests on such property as are reasonably necessary to conduct such
a review and/or investigation. Any such investigation of any Facility shall be
conducted, unless otherwise agreed to by such Credit Party and Administrative
Agent, upon reasonable advanced notice and during normal business hours and, to
the extent reasonably practicable, shall be conducted so as not to interfere
with the ongoing operations at any such Facility or to cause any damage or loss
to any property at such Facility. Each Credit Party and Administrative Agent
hereby acknowledge and agree that any report of any investigation conducted at
the request of Administrative Agent pursuant to this subsection 6.7B will be
obtained and shall be used by Administrative Agent and Lenders for the purposes
of Lenders' internal credit decisions, to monitor and police the Loans and to
protect Lenders' security interests, if any, created by the Loan Documents.
Administrative Agent agrees to deliver a copy of any such report to such Credit
Party with the understanding that such Credit Party acknowledges and agrees that
(i) it will indemnify and hold harmless Administrative Agent and each Lender
from any costs, losses or liabilities relating to such Credit Party's use of or
reliance on such report, (ii) neither Administrative Agent nor any Lender makes
any representation or warranty with respect to such report, and (iii) by
delivering such report to such Credit Party, neither Administrative Agent nor
any Lender is requiring or recommending the implementation of any suggestions or
recommendations contained in such report.
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C. Each Credit Party shall, at its own expense, provide copies of such
non-privileged documents or information in such Credit Party's possession or
obtainable at a reasonable cost as Administrative Agent may reasonably request
in relation to any matters disclosed pursuant to this subsection 6.7.
6.8 BORROWER'S REMEDIAL ACTION REGARDING HAZARDOUS MATERIALS.
Each Credit Party shall promptly take, and shall cause each of its
Subsidiaries promptly to take, any and all necessary remedial action in
connection with the presence, storage, use, disposal, transportation or Release
of any Hazardous Materials on, under or about any Facility in order to comply
with all applicable Environmental Laws and Governmental Authorizations, except
when, and only to the extent that, such Credit Party's liability for such
presence, storage, use, disposal, transportation or discharge of any Hazardous
Materials is being contested in good faith by such Credit Party or could not
have a Material Adverse Effect.
6.9 INTEREST RATE PROTECTION.
If for any two consecutive Fiscal Quarters the Consolidated Total Debt
Ratio is greater than or equal to 5.00:1.00, Borrower shall obtain one or more
Interest Rate Agreements with respect to the Loans, within 90 days after the end
of such period, in an aggregate notional principal amount at any time of not
less than an amount equal to 50% of the then outstanding principal balance of
the Loans, which Interest Rate Agreements shall have the effect of establishing
a maximum interest rate satisfactory to Administrative Agent with respect to
such notional principal amount, each such Interest Rate Agreement to be in form
and substance reasonably satisfactory to Administrative Agent and with a term of
not less than two years.
SECTION 7. BORROWER'S NEGATIVE COVENANTS
Borrower covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Borrower shall perform, and shall cause each other Credit Party to perform, all
covenants in this Section 7.
7.1 INDEBTEDNESS.
The Obligors shall not, and shall not permit any of their respective
Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or
otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(i) The Credit Parties may become and remain liable with
respect to (a) the Obligations and (b) Indebtedness existing as of the
Closing Date as set forth in Schedule 7.1 annexed hereto (but not any
refinancing or renewal of any such Indebtedness described in this
clause (b));
(ii) Borrower and its Subsidiaries may become and remain
liable with respect to Contingent Obligations permitted by subsection
7.4 and, upon any matured obligations
77
actually arising pursuant thereto, the Indebtedness corresponding to
the Contingent Obligations so extinguished;
(iii) Borrower and its Subsidiaries may become and remain
liable with respect to Indebtedness in respect of Capital Leases and/or
secured purchase money Indebtedness in a combined aggregate amount not
to exceed $3,000,000 at any time; PROVIDED that with respect to any
purchase money Indebtedness, such Indebtedness shall be secured only by
the assets purchased with the proceeds thereof (and proceeds thereof)
and at least 80% of the purchase price of such assets was provided by
the proceeds of such purchase money Indebtedness;
(iv) The Subsidiaries of Borrower may become and remain liable
with respect to Indebtedness to Borrower and Borrower may become and
remain liable with respect to Indebtedness to a Subsidiary of Borrower;
PROVIDED that all such intercompany Indebtedness shall be subordinated
in right of payment to the cash payment in full of the Obligations and
any payment by any Subsidiary of Borrower under the Subsidiary Guaranty
shall result in a PRO TANTO reduction of the amount of any intercompany
Indebtedness owed by such Subsidiary to Borrower;
(v) Borrower and its Subsidiaries may become and remain liable
in respect of (i) accounts payable, accrued expenses and other deferred
expenses constituting Indebtedness not in excess of $2,500,000
outstanding at any time and (ii) additional Indebtedness similar to the
foregoing and owing to the Florida Marlins and being contested in good
faith pursuant to appropriate proceedings by Borrower and its
Subsidiaries in an aggregate amount not in excess of $2,100,000 plus
accrued interest thereon.
(vi) Borrower may become and remain liable with respect to
unsecured Subordinated Indebtedness in an aggregate principal amount
not to exceed $100,000,000; and
(vii) Borrower and its Subsidiaries may become and remain
liable with respect to other unsecured Indebtedness in an aggregate
principal amount not to exceed $5,000,000.
7.2 LIENS AND RELATED MATTERS.
A. PROHIBITION ON LIENS. The Credit Parties shall not, and shall not
permit any of their respective Subsidiaries to, directly or indirectly, create,
incur, assume or permit to exist any Lien on or with respect to any property or
asset of any kind (including any document or instrument in respect of goods or
accounts receivable) of any Credit Party or any of its Subsidiaries, whether now
owned or hereafter acquired, or any income or profits therefrom, or file or
permit the filing of, or permit to remain in effect, any financing statement or
other similar notice of any Lien with respect to any such property, asset,
income or profits under the Uniform Commercial Code of any State or under any
similar recording or notice statute, except for the following:
(i) Permitted Encumbrances;
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(ii) Liens granted pursuant to the Security Documents;
(iii) purchase money Liens securing purchase money
Indebtedness permitted pursuant to subsection 7.1(iii); PROVIDED that
(a) the purchase of the asset subject to such Lien is permitted under
the terms of subsection 7.7 and (b) such Liens encumber only the asset
so purchased (and proceeds thereof); and
(iv) Liens securing Capital Leases permitted under subsections
7.8.
B. EQUITABLE LIEN IN FAVOR OF LENDERS. If any Credit Party or any of
its Subsidiaries shall create or assume any Lien upon any of its properties or
assets, whether now owned or hereafter acquired, other than Permitted Liens, it
shall make or cause to be made effective provision whereby the Obligations will
be secured by such Lien equally and ratably with any and all other Indebtedness
secured thereby as long as any such Indebtedness shall be so secured; PROVIDED
that, notwithstanding the foregoing, this covenant shall not be construed as a
consent by Requisite Lenders to the creation or assumption of any Lien other
than a Permitted Lien.
C. NO FURTHER NEGATIVE PLEDGES. Except with respect to specific
property encumbered to secure payment of particular Indebtedness or to be sold
pursuant to an executed agreement with respect to an Asset Sale, neither any
Credit Party nor any of its Subsidiaries shall enter into any agreement
prohibiting the creation or assumption of any Lien upon any of its properties or
assets, whether now owned or hereafter acquired other than leases or licenses of
specified property which prohibit Liens on such property.
D. NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO CREDIT PARTIES OR
OTHER SUBSIDIARIES. Except as provided herein, the Credit Parties will not, and
will not permit any of their respective Subsidiaries to, create or otherwise
cause or suffer to exist or become effective any consensual encumbrance or
restriction of any kind on the ability of any such Subsidiary to (i) pay
dividends or make any other distributions on any of such Subsidiary's capital
stock owned by such Credit Party or any other Subsidiary of such Credit Party,
(ii) repay or prepay any Indebtedness owed by such Subsidiary to such Credit
Party or any other Subsidiary of such Credit Party, (iii) make loans or advances
to such Credit Party or any other Subsidiary of such Credit Party, or (iv)
transfer any of its property or assets to such Credit Party or any other
Subsidiary of such Credit Party.
7.3 INVESTMENTS; JOINT VENTURES.
The Credit Parties shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly, make or own any Investment
in any Person, including any Joint Venture, except:
(i) The Credit Parties and their respective Subsidiaries may
make and own Investments in Cash and Cash Equivalents;
(ii) The Credit Parties and their respective Subsidiaries may
continue to own the Investments owned by them as of the Closing Date in
any of their respective Subsidiaries;
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(iii) The Credit Parties and their respective Subsidiaries may
make intercompany loans to the extent permitted under subsection
7.1(iv);
(iv) The Credit Parties and their respective Subsidiaries may
make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) The Credit Parties and their respective Subsidiaries may
make Investments consisting of surety bonds, escrow arrangements,
security deposits and like transactions incurred either (a) in the
ordinary course of business or (b) in connection with a Permitted
Acquisition;
(vi) Investments in newly formed Subsidiaries; PROVIDED that
such Subsidiaries become parties to the Subsidiary Guaranty and the
other Loan Documents to the same extent as the other Subsidiaries of
Borrower;
(vii) Investments existing as of the Closing Date as set forth
in Schedule 7.3;
(viii) So long as no Event of Default or Potential Event of
Default shall have occurred and be continuing, or would result
therefrom, Borrower and its Subsidiaries may make other Investments;
PROVIDED that (a) any Cash consideration paid or advanced to make any
such Investment, together with all Cash consideration paid or advanced
to make all such Investments made pursuant to this clause (viii), shall
not exceed $10,000,000 in the aggregate, and (b) the value of any
non-Cash consideration paid or advanced to make any such Investment,
together with the value of all non-Cash consideration paid or advanced
to make all such Investments described under this clause (viii), shall
not exceed $30,000,000 in the aggregate (it being understood that the
value of any such non-Cash consideration shall be determined in good
faith by Borrower at the time such consideration is paid or advanced to
make the applicable Investment); and
(ix) Investments in Joint Ventures with other radio operators
in broadcast tower operations in an aggregate amount not to exceed
$5,000,000; and
(x) Investments with respect to transactions permitted
pursuant to subsection 7.7.
7.4 CONTINGENT OBLIGATIONS.
The Credit Parties shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly, create or become or remain
liable with respect to any Contingent Obligation, except:
(i) The Credit Parties and their respective Subsidiaries may
become and remain liable with respect to Contingent Obligations
incurred pursuant to the Loan Documents;
(ii) Borrower may become and remain liable with respect to
Contingent Obligations under Interest Rate Agreements required under
subsection 6.9;
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(iii) Contingent Obligations with respect to transactions
permitted pursuant to subsection 7.3 (viii) or subsection 7.7;
(iv) Borrower and its Subsidiaries may become and remain
liable with respect to performance bonds or deposits or other surety
arrangements supporting insurance obligations or other commitments or
undertakings arising in the ordinary course of business consistent with
past practice;
(v) Contingent Obligations existing as of the Closing Date as
set forth in Schedule 7.4 annexed hereto; and
(vi) Contingent Obligations consisting of any Credit Party
(other than a License Subsidiary) guaranteeing (or otherwise
supporting) the obligations of another Credit Party which are permitted
hereunder.
7.5 RESTRICTED JUNIOR PAYMENTS.
The Credit Parties shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly, declare, order, pay, make or
set apart any sum for any Restricted Junior Payment; PROVIDED that Borrower (i)
may make distributions to Holdings for tax obligations incurred by Holdings as a
result of the pass-through of income to Holdings from the Credit Parties or as a
result of the disposition by Holdings of any interest in a Credit Party
(including without limitation, capital gains taxes); (ii) as long as no Event of
Default or Potential Event of Default has occurred and is continuing or would
result therefrom, may make Cash distributions to Holdings for the repurchase by
Holdings pursuant to open market transactions in compliance with all applicable
laws of publicly owned Equity Securities of Holdings' in an aggregate cumulative
amount since the Closing Date not to exceed $25,000,000; and (iii) as long as no
Event of Default or Potential Event of Default has occurred and is continuing or
would result therefrom, Borrower may make Cash advances (any such advance by
Borrower or direct payment by Borrower or any of its Subsidiaries in lieu of
making such advance, being a "HOLDINGS ADVANCE") to Holdings in an amount
sufficient to enable Holdings to pay reasonable and customary fees, costs and
expenses incurred by Holdings (and not payable to Affiliates of Holdings) in
connection with the public issuance of Securities of Holdings; PROVIDED that
each such Holdings Advance is evidenced by a promissory note (which may consist
of one master note that covers all Holding Advances from time to time) payable
on demand by Borrower.
7.6 FINANCIAL COVENANTS.
A. MINIMUM INTEREST COVERAGE RATIO. Borrower shall not permit the ratio
of (i) Consolidated Operating Cash Flow to (ii) Consolidated Cash Interest
Expense for any four consecutive Fiscal Quarter period ending as of the last day
of any Fiscal Quarter of Borrower (X) during the period from and including the
Closing Date to and including June 30, 2001 to be less than 1.75:1.00, and (Y)
thereafter to be less than 2.00:1.00.
B. MINIMUM FIXED CHARGE COVERAGE RATIO. Borrower shall not permit the
ratio of (i) Consolidated Operating Cash Flow to (ii) Consolidated Fixed Charges
for any four consecutive Fiscal Quarter period ending as of the last day of any
Fiscal Quarter of Borrower to be less than 1.10:1.00.
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C. MAXIMUM CONSOLIDATED TOTAL DEBT RATIO. Borrower shall not permit the
ratio of (i) Consolidated Total Debt as of the last day of any Fiscal Quarter to
(ii) Consolidated Operating Cash Flow for the four consecutive Fiscal Quarter
period ending as of the last day of such Fiscal Quarter during any of the
periods set forth below to exceed the correlative ratio indicated:
================================================== ============================
MAXIMUM
PERIODS CONSOLIDATED TOTAL DEBT
RATIO
================================================== ============================
Closing Date - March 31, 2001 6.75:1.00
-------------------------------------------------- ----------------------------
April 1, 2001 - September 30, 2001 6.50:1.00
-------------------------------------------------- ----------------------------
October 1, 2001 - March 31, 2002 6.25:1.00
-------------------------------------------------- ----------------------------
April 1, 2002 - December 31, 2002 6.00:1.00
-------------------------------------------------- ----------------------------
January 1, 2003 - December 31, 2003 5.50:1.00
-------------------------------------------------- ----------------------------
January 1, 2004 - December 31, 2004 5.00:1.00
-------------------------------------------------- ----------------------------
January 1, 2005 - December 31, 2005 4.50:1.00
-------------------------------------------------- ----------------------------
January 1, 2006 and thereafter 4.00:1.00
================================================== ============================
7.7 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS.
The Credit Parties shall not, and shall not permit any of their
respective Subsidiaries to, or enter into any transaction of merger or
consolidation, or liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease, sub-lease, transfer or
otherwise dispose of, in one transaction or a series of transactions, all or any
part of their business, property or fixed assets, whether now owned or hereafter
acquired (other than sales and other dispositions, including the sale, transfer,
replacement or other disposition of equipment and inventory, in each case, in
the ordinary course of business), or acquire by purchase or otherwise all or
substantially all the business, property or fixed assets of, or stock or other
evidence of beneficial ownership of, any Person or any division or line of
business of any Person or enter into any LMA except:
(i) (a) Borrower and any Subsidiary of Borrower may be merged
or consolidated with or into, or may convey, lease or otherwise dispose
of assets to Borrower (PROVIDED that Borrower shall be the continuing
or surviving entity) or with or into or to any one or more Subsidiaries
of Borrower and, (b) any Subsidiary of Borrower may liquidate or
dissolve as long as in connection therewith all of its assets are
transferred to Borrower or any Subsidiary of Borrower; PROVIDED that a
License Sub may only be merged with or liquidated or dissolved into,
another License Sub; PROVIDED FURTHER, that none of the foregoing
transactions shall result in any diminution in ownership by Borrower
(on a consolidated basis) of any of the assets affected thereby;
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(ii) Borrower and its Subsidiaries may dispose of obsolete,
worn out or surplus property in the ordinary course of business;
(iii) Borrower and its Subsidiaries may sell or otherwise
dispose of assets in transactions that do not constitute Asset Sales;
(iv) So long as no Event of Default or Potential Event of
Default shall have occurred and be continuing, or would result
therefrom, Borrower and its Subsidiaries may consummate acquisitions of
radio broadcasting stations in the United States (each, a "PERMITTED
ACQUISITION") and may enter into LMA's for radio broadcasting stations
in the United States upon satisfaction of the following conditions (as
applicable):
(a) in the case of a Permitted Acquisition:
(1) each of the conditions set forth in
subsection 4.2 shall have been satisfied to the
extent applicable; and
(2) prior to any such Permitted Acquisition,
Borrower shall have demonstrated, to Administrative
Agent's reasonable satisfaction, pro forma compliance
with each of the covenants set forth in subsection
7.6 after giving effect to such Permitted Acquisition
and throughout the remaining term of this Agreement
and shall provide projections to Administrative Agent
evidencing such compliance, all of the foregoing to
be reasonably satisfactory in form and substance to
Administrative Agent; PROVIDED, HOWEVER, that if on
the date of such Permitted Acquisition the aggregate
fair market value of all the Acquired Stations in
such Permitted Acquisition is less than $20,000,000,
Borrower shall only be required to deliver an
Officers' Certificate of Borrower providing a
representation and warranty that Borrower's
commercially reasonable projections demonstrate that
Borrower shall be in pro forma compliance with each
of the covenants set forth in subsection 7.6 after
giving effect to such Permitted Acquisition and
throughout the term of this Agreement.
(b) in the case of an LMA:
(1) if such LMA is not of a station subject
to a pending Permitted Acquisition, such LMA together
with any other LMA's of stations not subject to
pending Permitted Acquisitions in effect at such time
shall not contribute (or be projected to contribute)
more than 10% of Consolidated Operating Cash Flow for
any four consecutive Fiscal Quarter Period; and
(2) Borrower shall have delivered to
Administrative Agent an Officer's Certificate dated
as of the date Borrower or its Subsidiaries enter
into such LMA and calculated to give effect to any
related transactions, demonstrating compliance with
the conditions set forth in this subsection 7.7(iv)
and the covenants set forth in this Agreement after
giving effect to such LMA;
83
(v) Borrower and its Subsidiaries may make Asset Sales of
assets having an aggregate, cumulative fair market value not to exceed
$10,000,000 during the term of this Agreement; PROVIDED that (a) the
consideration received for such assets shall be in an amount at least
equal to the fair market value thereof and (b) the sole consideration
received shall be Cash or Cash and Permitted Sale Notes;
(vi) Borrower and its Subsidiaries may make other Asset Sales;
PROVIDED that either (I) each of the following conditions is satisfied:
(a) the assets subject to such Asset Sales, in the aggregate together
with all other assets sold pursuant to Asset Sales of the Borrower and
its Subsidiaries since the Closing Date did NOT generate more than 10%
of Consolidated Operating Cash Flow taken as a single accounting period
(calculated on a cumulative basis since the Closing Date), (b) the
consideration received for such assets shall be in an amount at least
equal to the fair market value thereof and (c) the sole consideration
received shall be Cash or Cash and Permitted Sale Notes OR (II)
Requisite Lenders approve of such Asset Sale;
(vii) Borrower and its Subsidiaries may acquire by purchase or
otherwise all or substantially all the business, property or fixed
assets of, or stock or other evidence of beneficial ownership of, any
Person or any division or line of business of any Person to the extent
such acquisition constitutes an Investment otherwise permitted under
subsection 7.3(ix); and
(viii) As long as no Event of Default or Potential Event of
Default has occurred and is continuing, the Credit Parties may sell or
otherwise transfer Tower Sites to BFT; PROVIDED that (a) the
consideration for such sale or transfer shall consist of a promissory
note or notes in an aggregate principal amount of not less than the
greater of (x) the fair market value of such Tower Sites or (y) the
depreciated acquisition costs to the applicable Credit Party for such
Tower Site, which shall have a final maturity of not more than 20 years
from the date of issuance thereof, shall provide for monthly cash
interest at a per annum rate of not less than 6.0%, and shall provide
for monthly repayments of principal such that the amount of each
monthly installment of principal and interest through and including the
last such installment shall be equal to each other such installment;
(b) those Credit Parties which are transferors of such Tower Sites
shall, substantially concurrently with such sale or transfer, enter
into lease contracts with BFT for such Tower Sites, which contracts
shall be in form and substance reasonably satisfactory to
Administrative Agent; (c) in any event, in any month following such
transfer the aggregate of all lease payments for such Tower Sites made
in such month by such Credit Party shall not exceed the amount of the
installment of principal and interest paid during such month in cash to
such Credit Party pursuant to the promissory note or notes referred to
in the preceding clause (a); and (d) such Tower Sites and the leases in
respect thereof shall be subject to the terms and conditions of the BFT
Consent Letter (all of the foregoing transfers and related transactions
being a "PERMITTED TOWER TRANSFER").
7.8 SALES AND LEASE-BACKS.
The Credit Parties shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly, become or remain liable as
lessee or as a guarantor or other surety with
84
respect to any lease, whether an Operating Lease or a Capital Lease, of any
property (whether real, personal or mixed), whether now owned or hereafter
acquired, (i) which Credit Parties or any of their respective Subsidiaries has
sold or transferred or is to sell or transfer to any other Person (other than
the Credit Parties or any of their respective Subsidiaries) other than the
Transferred Tower Sites or (ii) which Credit Parties or any of the respective
Subsidiaries intends to use for substantially the same purpose as any other
property which has been or is to be sold or transferred by the Credit Parties or
any of their respective Subsidiaries to any Person (other than the Credit
Parties or any of their respective Subsidiaries) in connection with such lease;
PROVIDED that the foregoing restrictions shall not apply to Permitted Tower
Transfers.
7.9 SALE OR DISCOUNT OF RECEIVABLES.
The Credit Parties shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly, sell with recourse, or
discount or otherwise sell for less than the face value thereof, any of their
notes or accounts receivable other than (i) in the ordinary course of business
and (ii) the settlement, compromise or discounting of any notes or accounts in
connection with the collection thereof (or the classification thereof as
uncollectible) in a manner consistent with customary accounting practice.
7.10 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.
The Credit Parties shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction (including, without limitation, the purchase, sale, lease
or exchange of any property or the rendering of any service) with any holder of
10% or more of any class of equity Securities of any Credit Party or with any
Affiliates of any Credit Party or of any such holder, on terms that are less
favorable to such Credit Party or such Subsidiary, as the case may be, than
those that might be obtained at the time from Persons who are not such a holder
or Affiliate; PROVIDED that the foregoing restrictions shall not apply to (i)
any transactions between or among the Borrower and any of its wholly owned
Subsidiaries or between or among any such Subsidiary and any of its wholly owned
Subsidiaries, (ii) Permitted Tower Transfers and (iii) reasonable and customary
fees paid to members of the Board of Directors of the Credit Parties and their
respective Subsidiaries.
7.11 CONDUCT OF BUSINESS
From and after the Closing Date, no Credit Party will engage in any
business other than (i) the business engaged in by any Credit Party on the
Closing Date, and similar or related businesses and reasonable extensions
thereof, and (ii) such other lines of business as may be consented to by
Administrative Agent and Requisite Lenders; PROVIDED that, notwithstanding
anything to the contrary in this Agreement, no License Sub shall engage in any
business or incur any liabilities other than the ownership of its respective FCC
Licenses and the execution, delivery and performance of the Loan Documents to
which it is a party and activities incidental to the foregoing. Anything to the
contrary in this subsection 7.11 notwithstanding, Borrower and its Subsidiaries
may engage, pursuant to Investments permitted under subsection 7.3(ix), in the
business conducted by the businesses or Persons acquired through such
Investments.
85
7.12 AMENDMENTS OR WAIVERS OF SUBORDINATED DEBT DOCUMENTS AND CHARTER
DOCUMENTS
A. AMENDMENTS OF SUBORDINATED DEBT DOCUMENTS. No Credit Party shall
amend or otherwise change the terms of any Subordinated Debt Documents, or make
any payment consistent with an amendment thereof or change thereto, if the
effect of such amendment or change is to increase the interest rate on any
Subordinated Indebtedness, change (to earlier dates) any dates upon which
payments of principal or interest are due thereon, change any event of default
or condition to an event of default with respect thereto (other than to
eliminate or make less restrictive or less burdensome any such event of default
or increase any grace period related thereto), change the redemption, prepayment
or defeasance provisions thereof in such a manner that makes such provisions
more burdensome or restrictive on any Credit Party, change the subordination
provisions thereof (or of any guaranty thereof), or change any collateral
therefor (other than to release such collateral), or if the effect of such
amendment or change, together with all other amendments or changes made, is to
increase materially the obligations of the obligor thereunder or to confer any
additional rights on the holders of any Subordinated Indebtedness (or a trustee
or other representative on their behalf) which would be adverse to any Credit
Party, Administrative Agent or Lenders, without the prior written consent of
Requisite Lenders.
B. CHARTER DOCUMENTS. No Credit Party will agree to any material
amendment to, or waive any of its material rights under, its certificates or
articles of incorporation, bylaws or other documents relating to its capital
stock (other than amendments or waivers which individually, or together with all
other amendments, waivers or changes made, would not be adverse to,
Administrative Agent or Lenders) without, in each case, obtaining the written
consent of Administrative Agent or Requisite Lenders to such amendment or
waiver.
7.13 FISCAL YEAR
No Credit Party shall change its fiscal year-end from December 31
without the consent of Requisite Lenders.
SECTION 8. EVENTS OF DEFAULT
If any of the following conditions or events ("EVENTS OF DEFAULT")
shall occur:
8.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure by Borrower to pay any installment of principal of or interest
on any Loan when due, whether at stated maturity, by acceleration, by notice of
voluntary prepayment, by mandatory prepayment or otherwise; failure by Borrower
to pay when due any amount payable to an Issuing Lender in reimbursement of any
drawing under a Letter of Credit within three Business Days after the date due;
or failure by Borrower to pay any fee or any other amount due under this
Agreement within five Business Days after the date due; or
8.2 DEFAULT IN OTHER AGREEMENTS.
(i) Failure of any Credit Party to pay when due (including any
applicable grace period) (a) any principal of or interest on any Indebtedness
(other than Indebtedness referred to in
86
subsection 8.1) in an individual principal amount of $5,000,000 or more or any
items of Indebtedness with an aggregate principal amount of $5,000,000 or more
or (b) any Contingent Obligation in an individual principal amount of $5,000,000
or more or any Contingent Obligations with an aggregate principal amount of
$5,000,000 or more, in each case beyond the end of any grace period provided
therefor; or (ii) breach or default by Borrower or any of its Subsidiaries with
respect to any other material term of (a) any evidence of any Indebtedness in an
individual principal amount of $5,000,000 or more or any items of Indebtedness
with an aggregate principal amount of $5,000,000 or more or any Contingent
Obligation in an individual principal amount of $5,000,000 or more or any
Contingent Obligations with an aggregate principal amount of $5,000,000 or more
or (b) any loan agreement, mortgage, indenture or other agreement relating to
such other Indebtedness or Contingent Obligation(s), if the effect of such
breach or default is to cause, or to permit the holder or holders of that
Indebtedness or Contingent Obligation(s) (or a trustee on behalf of such holder
or holders) to cause, or such Indebtedness or Contingent Obligation(s) to become
or be declared due and payable prior to its stated maturity or the stated
maturity of any underlying obligation, as the case may be (upon the giving or
receiving of notice, lapse of time, both, or otherwise); or
8.3 BREACH OF CERTAIN COVENANTS.
Failure of any Credit Party to perform or comply with any term or
condition contained in subsection 2.5, 6.2 or Section 7 of this Agreement; or
8.4 BREACH OF WARRANTY.
Any representation, warranty, certification or other statement made by
any Obligor or any of its Subsidiaries in any Loan Document or in any statement
or certificate at any time given by such Obligor or any of its respective
Subsidiaries in writing pursuant hereto or thereto or in connection herewith or
therewith shall be false in any material respect on the date as of which made;
or
8.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS.
Any Obligor shall default in the performance of or compliance with any
term contained in this Agreement or any of the other Loan Documents, other than
any such term referred to in any other subsection of this Section 8, and such
default shall not have been remedied or waived within 30 days after the earlier
of (i) an officer of Borrower shall have obtained knowledge of such default or
(ii) receipt by Borrower of notice from Administrative Agent or Requisite
Lenders of such default; or
8.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having jurisdiction in the premises shall enter a decree or
order for relief in respect of any Obligor in an involuntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect, which decree or order is not stayed; or any
other similar relief shall be granted under any applicable federal or state law;
or (ii) an involuntary case shall be commenced against any Obligor under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect; or a decree or order of a court having
jurisdiction in the premises for the
87
appointment of a receiver, liquidator, sequestrator, trustee, custodian or other
officer having similar powers over such Obligor, or over all or a substantial
part of their property, shall have been entered; or there shall have occurred
the involuntary appointment of an interim receiver, trustee or other custodian
of such Obligor for all or a substantial part of their property; or a warrant of
attachment, execution or similar process shall have been issued against any
substantial part of the property of such Obligor, and any such event described
in this clause (ii) shall continue for 60 days unless dismissed, bonded or
discharged; or
8.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Any Obligor shall have an order for relief entered with respect to
it or commence a voluntary case under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect, or
shall consent to the entry of an order for relief in an involuntary case, or to
the conversion of an involuntary case to a voluntary case, under any such law,
or shall consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its property; or any
Obligor shall make any assignment for the benefit of creditors; or (ii) any
Obligor shall be unable, or shall fail generally, or shall admit in writing its
inability, to pay its debts as such debts become due; or the Board of Directors
of any Obligor (or any committee thereof) shall adopt any resolution or
otherwise authorize any action to approve any of the actions referred to in
clause (i) above or this clause (ii); or
8.8 JUDGMENTS AND ATTACHMENTS.
Any money judgment, writ or warrant of attachment or similar process
involving (i) in any individual case an amount in excess of $5,000,000 or (ii)
in the aggregate at any time an amount in excess of $5,000,000 (in either case
not adequately covered by insurance) shall be entered or filed against Borrower
or any of its Subsidiaries or any of their respective assets and shall remain
undischarged, unvacated, unbonded or unstayed for a period of 60 days (or in any
event later than five days prior to the date of any proposed sale thereunder);
or
8.9 DISSOLUTION.
Any order, judgment or decree shall be entered against any Obligor
decreeing the dissolution or split up of such Obligor or such Subsidiary and
such order shall remain undischarged or unstayed for a period in excess of 30
days; or
8.10 EMPLOYEE BENEFIT PLANS.
There shall occur one or more ERISA Events which individually or in the
aggregate results in or might reasonably be expected to result in liability of
Borrower or any of its respective ERISA Affiliates in excess of $5,000,000
during the term of this Agreement; or there shall exist an amount of unfunded
benefit liabilities (as defined in Section 4001(a)(18) of ERISA), individually
or in the aggregate for all Pension Plans (excluding for purposes of such
computation any Pension Plans with respect to which assets exceed benefit
liabilities), which exceeds $5,000,000; or
88
8.11 FAILURE OF SECURITY, GUARANTY OR SUBORDINATION.
(i) The BFT Consent Letter, Subsidiary Guaranty or any Security
Document shall, at any time, cease to be in full force and effect (other than by
reason of a release of any Obligor or Collateral in accordance with the terms
thereof or the satisfaction in full of all Obligations) or shall be declared
null and void, or the validity or enforceability thereof shall be contested by
any Obligor, or the Administrative Agent shall not have or cease to have a valid
and perfected First Priority security interest in any material portion of the
Collateral (subject to Permitted Liens) to the extent contemplated by the
Security Documents, or (ii) any agreement evidencing or governing the
subordination of the Subordinated Indebtedness of $5,000,000 or more in the
aggregate shall fail to remain in full force or effect or any Credit Party shall
breach the subordination provisions of the Subordinated Indebtedness; or
8.12 FCC LICENSES.
Any FCC License (other than auxiliary service licenses) relating to a
Station that has accounted for (or has been projected to account for, in case of
any newly acquired Stations) 10% or more of Consolidated Operating Cash Flow as
of the most recently concluded (or projected, as the case maybe) four
consecutive Fiscal Quarter period shall be canceled, terminated, modified in any
material adverse respect, renewed on terms that materially and adversely affect
the economic or commercial value thereof, or finally denied renewal for any
reason; or
8.13 BUSINESS INTERRUPTION.
Borrower shall permit any of its on-the-air broadcasting operations to
be, or any Station which contributes or Stations which in the aggregate
contribute more than 10% of the Consolidated Operating Cash Flow of the Borrower
shall permit any of its on-the-air broadcasting operations to be, interrupted
for more than (i) any 5 calendar days in any month or (ii) 72 consecutive hours;
or
8.14 CHANGE OF CONTROL.
There shall occur any Change of Control;
THEN (i) upon the occurrence of any Event of Default described in
subsection 8.6 or 8.7, each of (a) the unpaid principal amount of and accrued
interest on the Loans and (b) an amount equal to the maximum amount that may at
any time be drawn under all Letters of Credit then outstanding (whether or not
any beneficiary under any such Letter of Credit shall have presented, or shall
be entitled at such time to present, the drafts or other documents or
certificates required to draw under such Letter of Credit) (such amount to be
held by Collateral Administrative Agent pursuant to cash collateral agreements
in form and substance satisfactory to Administrative Agent), and (c) all other
Obligations shall automatically become immediately due and payable, without
presentment, demand, protest or other requirements of any kind, all of which are
hereby expressly waived by Borrower, and the obligation of each Lender to make
any Loan, the obligation of Administrative Agent to issue any Letter of Credit
and the right of any Lender to issue any Letter of Credit hereunder shall
thereupon terminate, and (ii) upon the occurrence and during the continuation of
any other Event of Default, Administrative Agent shall, upon the written request
or with the written consent of Requisite Lenders, by written notice to Borrower,
89
declare all or any portion of the amounts described in clauses (a) through (c)
above to be, and the same shall forthwith become, immediately due and payable,
and the obligation of each Lender to make any Loan, the obligation of
Administrative Agent to issue any Letter of Credit and the right of any Lender
to issue any Letter of Credit hereunder shall thereupon terminate; PROVIDED that
the foregoing shall not affect in any way the obligations of Lenders under
subsection 3.3C(i).
Any amounts described in clause (b) above, when received by
Administrative Agent, shall be held by Administrative Agent pursuant to the
terms of the cash collateral agreements described in clause (b) above and shall
be applied as therein provided.
Notwithstanding anything contained in the second preceding paragraph,
if at any time within 60 days after an acceleration of the Loans pursuant to
such paragraph Borrower shall pay all arrears of interest and all payments on
account of principal which shall have become due otherwise than as a result of
such acceleration (with interest on principal and, to the extent permitted by
law, on overdue interest, at the rates specified in this Agreement) and all
Events of Default and Potential Events of Default (other than non-payment of the
principal of and accrued interest on the Loans, in each case which is due and
payable solely by virtue of acceleration) shall be remedied or waived pursuant
to subsection 10.6, then Requisite Lenders, by written notice to Borrower, may
at their option rescind and annul such acceleration and its consequences
(including, without limitation, the return to the applicable Credit Party of any
unapplied cash collateral in accordance with the Security Documents); but such
action shall not affect any subsequent Event of Default or Potential Event of
Default or impair any right consequent thereon. The provisions of this paragraph
are intended merely to bind Lenders to a decision which may be made at the
election of Requisite Lenders and are not intended to benefit Borrower and do
not grant Borrower the right to require Lenders to rescind or annul any
acceleration hereunder, even if the conditions set forth herein are met.
SECTION 9. AGENT
9.1 APPOINTMENT.
A. Bank of Montreal is hereby appointed Administrative Agent hereunder
and under the other Loan Documents, Fleet National Bank is hereby appointed
Syndication Agent hereunder, Bank of America, N.A. and The Bank of New York are
hereby appointed Documentation Agents hereunder and The Bank of New York is
hereby appointed Managing Agent hereunder and each Lender hereby authorizes each
Agent to act as its agent in accordance with the terms of this Agreement and the
other Loan Documents. Each Agent agrees to act upon the express conditions
contained in this Agreement and the other Loan Documents, as applicable. The
provisions of this Section 9 are solely for the benefit of Agents and Lenders
and neither any Obligor nor any of its Subsidiaries shall have any rights as a
third party beneficiary of any of the provisions thereof (other than with
respect to the right to consent to a substitute Administrative Agent pursuant to
subsection 9.5). In performing its functions and duties under this Agreement,
each Agent shall act solely as an agent of Lenders and does not assume and shall
not be deemed to have assumed any obligation towards or relationship of agency
or trust with or for any Obligor or any of its Subsidiaries.
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9.2 POWERS; GENERAL IMMUNITY.
A. DUTIES SPECIFIED. Each Lender irrevocably authorizes Agents to take
such action on such Lender's behalf and to exercise such powers, rights and
remedies hereunder and under the other Loan Documents as are specifically
delegated or granted to Agents by the terms hereof and thereof, together with
such powers, rights and remedies as are reasonably incidental thereto. An Agent
shall have only those duties and responsibilities that are expressly specified
in this Agreement and the other Loan Documents. Each Agent may exercise such
powers, rights and remedies and perform such duties by or through its agents or
employees. No Agent shall have, by reason of this Agreement or any of the other
Loan Documents, a fiduciary relationship in respect of any Lender; and nothing
in this Agreement or any of the other Loan Documents, expressed or implied, is
intended to or shall be so construed as to impose upon any Agent any obligations
in respect of this Agreement or any of the other Loan Documents except as
expressly set forth herein or therein. Anything in this Agreement or the other
Loan Documents to the contrary notwithstanding, the titles of Syndication Agent,
Documentation Agent and Managing Agent are awarded hereunder for deal credit
purposes only and no such Agent shall have any duties or obligations hereunder
or under any of the other Loan Documents other than its duties and obligations
as a Lender hereunder or thereunder.
B. NO RESPONSIBILITY FOR CERTAIN MATTERS. No Agent shall be responsible
to any Lender for the execution, effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Agreement or any other
Loan Document or for any representations, warranties, recitals or statements
made herein or therein or made in any written or oral statements or in any
financial or other statements, instruments, reports or certificates or any other
documents furnished or made by such Agent to Lenders or by or on behalf of any
Obligor to such Agent or any Lender in connection with the Loan Documents and
the transactions contemplated thereby or for the financial condition or business
affairs of any Obligor or any other Person liable for the payment of any
Obligations, nor shall any Agent be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions, covenants
or agreements contained in any of the Loan Documents or as to the use of the
proceeds of the Loans or the use of the Letters of Credit or as to the existence
or possible existence of any Event of Default or Potential Event of Default.
Anything contained in this Agreement to the contrary notwithstanding,
Administrative Agent shall not have any liability arising from confirmations of
the amount of outstanding Loans or the Letter of Credit Usage or the components
amounts thereof.
C. EXCULPATORY PROVISIONS. No Agent or any of its officers, directors,
employees or agents shall be liable to Lenders for any action taken or omitted
by such Agent under or in connection with any of the Loan Documents except to
the extent caused by their own gross negligence or willful misconduct. If an
Agent shall request instructions from Lenders with respect to any act or action
(including the failure to take an action) in connection with this Agreement or
any of the other Loan Documents, such Agent shall be entitled to refrain from
such act or taking such action unless and until such Agent shall have received
instructions from Requisite Lenders. Without prejudice to the generality of the
foregoing, (i) each Agent shall be entitled to rely, and shall be fully
protected in relying, upon any communication, instrument or document believed by
it to be genuine and correct and to have been signed or sent by the proper
person or persons, and shall be entitled to rely and shall be protected in
relying on opinions and
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judgments of attorneys (who may be attorneys for the Obligors and their
respective Subsidiaries), accountants, experts and other professional advisors
selected by it; and (ii) no Lender shall have any right of action whatsoever
against any Agent as a result of such Agent acting or (where so instructed)
refraining from acting under this Agreement or any of the other Loan Documents
in accordance with the instructions of Requisite Lenders. Each Agent shall be
entitled to refrain from exercising any power, discretion or authority vested in
it under this Agreement or any of the other Loan Documents unless and until it
has obtained the instructions of Requisite Lenders.
D. AGENTS ENTITLED TO ACT AS LENDERS. The agency hereby created shall
in no way impair or affect any of the rights and powers of, or impose any duties
or obligations upon, an Agent in its individual capacity as a Lender hereunder.
With respect to its participation in the Loans and the Letters of Credit, an
Agent shall have the same rights and powers hereunder as any other Lender and
may exercise the same as though it were not performing the duties and functions
delegated to it hereunder, and the term "Lender" or "Lenders" or any similar
term shall, unless the context clearly otherwise indicates, include such Agent
in its individual capacity. Each Agent and its Affiliates may accept deposits
from, lend money to and generally engage in any kind of banking, trust,
financial advisory or other business with any Obligor or any of its Affiliates
as if it were not performing the duties specified herein, and may accept fees
and other consideration from any Obligor for services in connection with this
Agreement and otherwise without having to account for the same to Lenders.
9.3 REPRESENTATIONS AND WARRANTIES; NO RESPONSIBILITY FOR APPRAISAL OF
CREDITWORTHINESS.
Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs of the Obligors
and their respective Subsidiaries in connection with the making of the Loans and
the issuance of Letters of Credit hereunder and that it has made and shall
continue to make its own appraisal of the creditworthiness of the Obligors and
their respective Subsidiaries. No Agent shall have any duty or responsibility,
either initially or on a continuing basis, to make any such investigation or any
such appraisal on behalf of Lenders or to provide any Lender with any credit or
other information with respect thereto, whether coming into its possession
before the making of the Loans or at any time or times thereafter, and no Agent
shall have any responsibility with respect to the accuracy of or the
completeness of any information provided to Lenders.
9.4 RIGHT TO INDEMNITY.
Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify each Agent, to the extent that such Agent shall not have been
reimbursed by Borrower or another Obligor, for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including, without limitation, counsel fees and disbursements)
or disbursements of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against such Agent in performing its duties hereunder or
under the other Loan Documents or otherwise in its capacity as an Agent in any
way relating to or arising out of this Agreement or the other Loan Documents;
PROVIDED that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent's gross negligence, willful
misconduct or
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breach of contract arising under this Agreement or the other Loan Documents. If
any indemnity furnished to an Agent for any purpose shall, in the opinion of
such Agent, be insufficient or become impaired, such Agent may call for
additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished.
9.5 SUCCESSOR ADMINISTRATIVE AGENT.
Any Agent may resign at any time by giving 30 days' prior written
notice thereof to Lenders, Administrative Agent and Borrower, and Administrative
Agent may be removed at any time with or without cause by an instrument or
concurrent instruments in writing delivered to Borrower and Administrative Agent
and signed by Requisite Lenders. Upon any such notice of resignation or any such
removal, Requisite Lenders shall have the right, upon five Business Days' notice
to, and with the prior written consent of, Borrower (which consent of Borrower
shall not be unreasonably withheld or delayed and which consent, in any case,
shall not be required at any time that an Event of Default has occurred and is
continuing), to appoint a successor Agent. Upon the acceptance of any
appointment as an Agent hereunder by a successor Agent, that successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Agent and the retiring or
removed Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring or removed Agent's resignation or removal
hereunder as an Agent, the provisions of this Section 9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement.
9.6 SECURITY DOCUMENTS, ETC.
A. SECURITY DOCUMENTS. Each Lender hereby further authorizes
Administrative Agent to enter into the Security Documents as secured party, and
to accept the Subsidiary Guaranty, in each case on behalf of and for the benefit
of Lenders and agrees to be bound by the terms of the Security Documents and the
Subsidiary Guaranty; PROVIDED that Administrative Agent shall not enter into or
consent to any amendment, modification, termination or waiver of any provision
contained in the Security Documents or the Subsidiary Guaranty without the prior
consent of Requisite Lenders (or such greater number of Lenders as might be
required under Section 10.6); PROVIDED FURTHER, that anything in this Agreement
or the other Loan Documents to the contrary notwithstanding:
(i) Administrative Agent is authorized on behalf of all
Lenders, without the necessity of any notice to or further consent from
the Lenders, from time to time to take any action with respect to any
Collateral or the Security Documents which may be necessary to perfect
and maintain perfected the security interest in and Liens upon the
Collateral granted pursuant to the Security Documents.
(ii) The Lenders irrevocably authorize Administrative Agent,
at its option and in its discretion, to release any Lien granted to or
held by Administrative Agent upon any Collateral (a) upon termination
of the Commitments and payment in full of the Loans and all other
Obligations payable under this Agreement and under any other Loan
Document; (b) constituting property sold or to be sold or disposed of
as part of or in connection with any disposition permitted hereunder or
under the Security Documents; (c) constituting
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property in which any Obligor owned no interest at the time the Lien
was granted or at any time thereafter; (d) constituting property leased
to any Credit Party under a lease which has expired or been terminated
in a transaction permitted under this Agreement or is about to expire
and which has not been, and is not intended by such Credit Party to be,
renewed or extended; (e) consisting of an instrument evidencing
Indebtedness if the Indebtedness evidenced thereby has been paid in
full; or (f) if otherwise approved, authorized or ratified in writing
by Requisite Lenders, subject to subsection 10.6. Upon request by
Administrative Agent at any time, Lenders will confirm in writing
Administrative Agent's authority to release particular types or items
of Collateral pursuant to this subsection 9.6.
B. LENDER ACTION. Anything contained in any of the Loan Documents to
the contrary notwithstanding, each Lender agrees that no Lender shall have any
right individually to realize upon any of the Collateral under the Security
Documents (including without limitation through the exercise of a right of
set-off against call deposits of such Lender in which any funds on deposit in
the Security Documents may from time to time be invested, unless requested by
Administrative Agent or Requisite Lenders) or enforce any remedy or make any
demand pursuant to the Subsidiary Guaranty, it being understood and agreed that
all rights and remedies under the Security Documents and the Subsidiary Guaranty
may be exercised solely by Administrative Agent for the benefit of Lenders in
accordance with the terms thereof.
9.7 APPOINTMENT OF SEPARATE ADMINISTRATIVE AGENT.
At any time or times deemed necessary or advisable by Administrative
Agent or Requisite Lenders, upon and during the continuance of an Event of
Default, including for purposes of complying with Section 310(b) of the
Communications Act and for purposes of enforcing any right or remedy hereunder,
Administrative Agent or Requisite Lenders may appoint one or more Persons to act
as a separate agent or co-agent to the full extent permitted by law and in
accordance with such instructions and directions as Administrative Agent or
Requisite Lenders, as the case may be, may specify. All provisions of this
Agreement which are for the benefit of the Administrative Agent shall extend to
and apply to each separate agent or co-agent appointed pursuant to the foregoing
provisions. The powers of any separate agent or co-agent shall not exceed those
of the Administrative Agent hereunder.
SECTION 10. MISCELLANEOUS
10.1 ASSIGNMENTS AND PARTICIPATIONS IN LOANS AND LETTERS OF CREDIT.
A. GENERAL. Each Lender shall have the right at any time to (i) sell,
assign or transfer to any Eligible Assignee, or (ii) sell participations to any
Person in, all or any part of its Commitments or any Loan or Loans made by it or
its Letters of Credit or participations therein or any other interest herein or
in any other Obligations owed to it; PROVIDED that no such sale, assignment,
transfer or participation shall, without the consent of Borrower, require
Borrower to file a registration statement with the Securities and Exchange
Commission or apply to qualify such sale, assignment, transfer or participation
under the securities laws of any state; and PROVIDED, FURTHER that no such sale,
assignment, transfer or
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participation of any Letter of Credit or any participation therein may be made
separately from a sale, assignment, transfer or participation of a corresponding
interest in the Revolving Loan Commitment and the Revolving Loans of the Lender
effecting such sale, assignment, transfer or participation. Except as otherwise
provided in this subsection 10.1, no Lender shall, as between Borrower and such
Lender, be relieved of any of its obligations hereunder as a result of any sale,
assignment or transfer of, or any granting of participations in, all or any part
of its Commitments or the Loans, the Letters of Credit or participations
therein, or other Obligations owed to such Lender.
B. ASSIGNMENTS.
(i) AMOUNTS AND TERMS OF ASSIGNMENTS. Each Commitment, Loan,
Letter of Credit or participation therein, or other Obligation may (a)
be assigned in any amount to another Lender, or to an Affiliate of the
assigning Lender or another Lender, with the giving of notice to
Borrower and Administrative Agent or (b) be assigned in an aggregate
amount of not less than $5,000,000 (or such lesser amount as shall
constitute the aggregate amount of the Commitments, Loans, Letters of
Credit and participation therein, and other Obligations of the
assigning Lender) to any other Eligible Assignee with the giving of
notice to Borrower and Administrative Agent and with the consent of
Borrower and Administrative Agent (which consent of Borrower and
Administrative Agent shall not be unreasonably withheld and which
consent, in the case of Borrower, shall not be required at any time
that an Event of Default has occurred and is continuing); PROVIDED that
as long as no Event of Default has occurred and is continuing, after
giving effect to any such assignment by an assigning Lender which is
less than the total amount of such assigning Lender's aggregate Term
Loan Commitment, Term Loans, Revolving Loan Commitment, Revolving Loans
or interest in any Letters of Credit, the aggregate amount of such
assigning Lender's Term Loan Commitment, Term Loans, Revolving Loan
Commitment, Revolving Loans and interests in Letters of Credit held by
it shall not be less than $5,000,000. To the extent of any such
assignment in accordance with either clause (a) or (b) above, the
assigning Lender shall be relieved of its obligations with respect to
its Commitments, Loans, Letters of Credit or participations therein, or
other Obligations or the portion thereof so assigned. The parties to
each such assignment shall execute and deliver to Administrative Agent,
for its acceptance, an assignment agreement, together with (i) such
forms, certificates or other evidence, if any, with respect to United
States federal income tax withholding matters as the assignee under
such assignment agreement may be required to deliver to Administrative
Agent pursuant to subsection 2.7B(iii)(a) and (ii) for assignments
pursuant to clause (b) above a processing fee of $3,500 (for which no
Obligor shall have any responsibility or liability). Upon such
execution, delivery, and acceptance, from and after the effective date
specified in such assignment agreement, (y) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such assignment
agreement, shall have the rights and obligations of a Lender hereunder
and (z) the assigning Lender thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to
such assignment agreement, relinquish its rights and be released from
its obligations under this Agreement (and, in the case of an assignment
agreement covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall
cease to be a party hereto; PROVIDED that, anything contained in any of
the Loan Documents to the contrary notwithstanding, if such Lender is
the Issuing Lender with respect to any
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outstanding Letters of Credit such Lender shall continue to have all
rights and obligations of an Issuing Lender with respect to such
Letters of Credit until the cancellation or expiration of such Letters
of Credit and the reimbursement of any amounts drawn thereunder). The
Commitments hereunder shall be modified to reflect the Commitment of
such assignee and any remaining Commitment of such assigning Lender
and, if any such assignment occurs after the issuance of the Notes
hereunder, the assigning Lender shall, upon the effectiveness of such
assignment or as promptly thereafter as practicable, surrender its
applicable Notes, if any, to Administrative Agent for cancellation, and
thereupon new Notes shall be issued to the assignee and to the
assigning Lender, substantially in the form of EXHIBIT IV or EXHIBIT V
annexed hereto, as the case may be, with appropriate insertions, to
reflect the new Commitments and/or outstanding Term Loans, as the case
may be, of the assignee and the assigning Lender.
(ii) ACCEPTANCE BY ADMINISTRATIVE AGENT. Upon its receipt of
an assignment agreement executed by an assigning Lender and an assignee
representing that it is an Eligible Assignee, together with the
processing fee referred to in subsection 10.1B(i) and any forms,
certificates or other evidence with respect to United States federal
income tax withholding matters that such assignee may be required to
deliver to Administrative Agent pursuant to subsection 2.7B(iii)(a),
Administrative Agent shall, if such assignment agreement has been
completed and is acceptable in form and substance to Administrative
Agent, and if Administrative Agent and Borrower have consented to the
assignment evidenced thereby (in each case to the extent such consent
is required pursuant to subsection 10.1B(i)), (a) accept such
assignment agreement by executing a counterpart thereof as provided
therein (which acceptance shall evidence any required consent of
Administrative Agent to such assignment) and (b) give prompt notice
thereof to Borrower. Administrative Agent shall maintain a copy of each
assignment agreement delivered to and accepted by it as provided in
this subsection 10.1B(ii).
C. PARTICIPATIONS. The holder of any participation, other than an
Affiliate of the Lender granting such participation, shall not be entitled to
require such Lender to take or omit to take any action hereunder except action
directly affecting (i) the extension of the regularly scheduled maturity of any
portion of the principal amount of or interest on any Loan allocated to such
participation or (ii) a reduction of the principal amount of or the rate of
interest payable on any Loan allocated to such participation, and all amounts
payable by Borrower hereunder (including without limitation amounts payable to
such Lender pursuant to subsections 2.6D, 2.7 and 3.6) shall be determined as if
such Lender had not sold such participation.
D. ASSIGNMENTS TO FEDERAL RESERVE BANKS. In addition to the assignments
and participations permitted under the foregoing provisions of this subsection
10.1, any Lender may assign and pledge all or any portion of its Loans, the
other Obligations owed to such Lender, and its Notes to any Federal Reserve Bank
as collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any operating circular issued by such Federal Reserve
Bank; PROVIDED that (i) no Lender shall, as between Borrower and such Lender, be
relieved of any of its obligations hereunder as a result of any such assignment
and pledge and (ii) in no event shall such Federal Reserve Bank be considered to
be a "Lender" or be entitled to require the assigning Lender to take or omit to
take any action hereunder.
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E. INFORMATION. Each Lender may furnish any information concerning the
Obligors and their respective Subsidiaries in the possession of that Lender from
time to time to assignees and participants (including prospective assignees and
participants), subject to subsection 10.19.
10.2 EXPENSES.
Whether or not the transactions contemplated hereby shall be
consummated, Borrower agrees to pay promptly (i) all the actual and reasonable
out-of-pocket costs and expenses of Administrative Agent for the preparation of
the Loan Documents; (ii) the reasonable fees, expenses and disbursements of
counsel to Administrative Agent in connection with the negotiation, preparation,
execution and administration of the Loan Documents and the Loans and any
consents, amendments, waivers or other modifications hereto or thereto and any
other documents or matters requested by any Obligor; (iii) all other actual and
reasonable out-of-pocket costs and expenses incurred by Administrative Agent in
connection with the initial syndication of the Commitments and the negotiation,
preparation and execution of the Loan Documents and the transactions
contemplated hereby and thereby (except that no Obligor shall be required to pay
financing fees or any other fees or expenses of any syndication member unless
agreed upon separately by Borrower); and (iv) after the occurrence of an Event
of Default, all costs and expenses, including reasonable attorneys' fees and
costs of settlement, incurred by Administrative Agent and Lenders in enforcing
any Obligations of or in collecting any payments due from any Obligor hereunder
or under the other Loan Documents by reason of such Event of Default or in
connection with any refinancing or restructuring of the credit arrangements
provided under this Agreement in the nature of a "work-out" or pursuant to any
insolvency or bankruptcy proceedings.
10.3 INDEMNITY.
In addition to the payment of expenses pursuant to subsection 10.2,
whether or not the transactions contemplated hereby shall be consummated,
Borrower agrees to defend, indemnify, pay and hold harmless Agents and Lenders
and their respective Affiliates, and the officers, directors, employees and
agents of Agents and Lenders and their respective Affiliates (collectively
called the "INDEMNITEES") from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses and disbursements of any kind or nature whatsoever (including
without limitation the reasonable fees and disbursements of counsel for such
Indemnitees) in connection with any investigative, administrative or judicial
proceeding commenced or threatened by any Person (including, without limitation,
any Obligor or Affiliate thereof), whether or not any such Indemnitee shall be
designated as a party or a potential party thereto), that may be imposed on,
incurred by, or asserted against any such Indemnitee, in any manner relating to
or arising out of the actions or activities of any Credit Party or Affiliate
thereof (including without limitation in respect of securities and commercial
laws, statutes, rules or regulations and Environmental Laws), this Agreement or
the other Loan Documents or the transactions contemplated hereby or thereby
(including without limitation any broker's or finder's fees alleged to have been
incurred in connection herewith or therewith, Lenders' agreement to make the
Loans hereunder or the use or intended use of the proceeds of any of the Loans
or the issuance of Letters of Credit hereunder or the use or intended use of any
of the Letters of Credit) or the statements contained in the commitment letter
delivered by any Lender to Borrower with respect thereto (collectively called
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the "INDEMNIFIED LIABILITIES"); PROVIDED that (i) the foregoing indemnity shall
not apply to any action or claim brought by any Obligor against any Indemnitee
hereunder for breach of contract arising under this Agreement or the other Loan
Documents and (ii) Borrower shall not have any obligation to any Indemnitee
hereunder with respect to any Indemnified Liabilities to the extent such
Indemnified Liabilities arise solely from the gross negligence or willful
misconduct of that Indemnitee or any of its officers, directors, employees,
agents or affiliates as determined by a final judgment of a court of competent
jurisdiction. To the extent that the undertaking to defend, indemnify, pay and
hold harmless set forth in the preceding sentence may be unenforceable because
it is violative of any law or public policy, Borrower shall contribute, jointly
and severally, the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all non-excluded Indemnified
Liabilities incurred by the Indemnitees or any of them.
10.4 SET-OFF.
In addition to any rights now or hereafter granted under applicable law
and not by way of limitation of any such rights, upon the occurrence of any
Event of Default each Lender is hereby authorized by Borrower at any time or
from time to time, without notice to Borrower or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and to apply
any and all deposits (general or special, including, but not limited to,
Indebtedness evidenced by certificates of deposit, whether matured or unmatured,
but not including trust accounts) and any other Indebtedness at any time held or
owing by that Lender to or for the credit or the account of Borrower against and
on account of the obligations and liabilities of Borrower to that Lender under
this Agreement, the Letters of Credit and participations therein and the other
Loan Documents, including, but not limited to, all claims of any nature or
description arising out of or connected with this Agreement, the Letters of
Credit and participations therein or any other Loan Document, irrespective of
whether or not (i) that Lender shall have made any demand hereunder or (ii) the
principal of or the interest on the Loans or any amounts in respect of the
Letters of Credit or any other amounts due hereunder shall have become due and
payable pursuant to Section 8 and although said obligations and liabilities, or
any of them, may be contingent or unmatured.
10.5 RATABLE SHARING.
Lenders hereby agree among themselves that if any of them shall,
whether by voluntary payment, by realization upon security, through the exercise
of any right of set-off or banker's lien, by counterclaim or cross action or by
the enforcement of any right under the Loan Documents or otherwise, or as
adequate protection of a deposit treated as cash collateral under the Bankruptcy
Code, receive payment or reduction of a proportion of the aggregate amount of
principal, interest, amounts payable in respect of Letters of Credit, fees and
other amounts then due and owing to that Lender hereunder or under the other
Loan Documents (collectively, the "AGGREGATE AMOUNTS DUE" to such Lender) which
is greater than the proportion received by any other Lender in respect of the
Aggregate Amounts Due to such other Lender, then the Lender receiving such
proportionately greater payment shall (i) notify Administrative Agent and each
other Lender of the receipt of such payment and (ii) apply a portion of such
payment to purchase participations (which it shall be deemed to have purchased
from each seller of a participation simultaneously upon the receipt by such
seller of its portion of such payment) in the
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Aggregate Amounts Due to the other Lenders so that all such recoveries of
Aggregate Amounts Due shall be shared by all Lenders in proportion to the
Aggregate Amounts Due to them; PROVIDED that if all or part of such
proportionately greater payment received by such purchasing Lender is thereafter
recovered from such Lender upon the bankruptcy or reorganization of Borrower or
otherwise, those purchases shall be rescinded and the purchase prices paid for
such participations shall be returned to such purchasing Lender ratably to the
extent of such recovery, but without interest. Borrower expressly consents to
the foregoing arrangement and agrees that any holder of a participation so
purchased may exercise any and all rights of banker's lien, set-off or
counterclaim with respect to any and all monies owing by Borrower to that holder
with respect thereto as fully as if that holder were owed the amount of the
participation held by that holder.
10.6 AMENDMENTS AND WAIVERS.
No amendment, modification, termination or waiver of any provision of
this Agreement or of the Notes, and no consent to any departure by Borrower
therefrom, shall in any event be effective without the written concurrence of
Requisite Lenders; PROVIDED that any such amendment, modification, termination,
waiver or consent which: postpones the scheduled final maturity date of any of
the Loans; changes in any manner the method for calculating "Pro Rata Share" or
"Requisite Lenders"; changes in any manner any provision of this Agreement
which, by its terms, expressly requires the approval or concurrence of all
Lenders; releases any Lien granted in favor of Administrative Agent with respect
to any material portion of the Collateral; releases any Subsidiary from that
Subsidiary's obligations under the Subsidiary Guaranty (other than pursuant to a
transaction permitted hereunder such as a permitted asset sale or merger of such
Subsidiary), or contractually subordinates the Subsidiary Guaranty to the
payment of any other obligations of that Subsidiary; consents to the assignment
or transfer by the Borrower of any of its rights and obligations under this
Agreement; changes in any manner the provisions contained in subsection 8.1 or
this subsection 10.6; increases the amount of any of the Commitments or reduces
the principal amount of any of the Loans; reduces the amount of, or postpones
the date of, any scheduled amortization installment of principal of, or
commitment reduction with respect to, any of the Loans as set forth in
subsection 2.4A(i) or (ii), as the case may be; postpones the date on which any
interest or any fees are payable with respect to any Loans; decreases the
interest rate borne by any of the Loans (other than any waiver of any increase
in the interest rate applicable to any of the Loans pursuant to subsection 2.2E)
or reduces the rate or the amount of any fees payable hereunder with respect to
any Loans; reduces the amount or postpones the due date of any amount payable in
respect of, or extends the required expiration date of any Letter of Credit past
the Revolving Loan Commitment Termination Date; or changes in any manner the
obligations of Lenders relating to the purchase of participations in Letters of
Credit, shall be effective, in each case, only if evidenced by a writing signed
by or on behalf of all Lenders holding the Loans or Letters of Credit (or having
a Commitment with respect thereto) which are the subject of such amendment,
modification, termination, waiver or consent. In addition (i) no amendment,
modification, termination or waiver of any provision of any Note shall be
effective without the written concurrence of the Lender which is the holder of
that Note, and (ii) no amendment, modification, termination or waiver of any
provision of Section 9 or of any other provision of this Agreement which, by its
terms, expressly requires the approval or concurrence of an Agent shall be
effective without the written concurrence of such Agent. Administrative Agent
may, but shall have no obligation to,
99
with the concurrence of any Lender, execute amendments, modifications, waivers
or consents on behalf of that Lender. Any waiver or consent shall be effective
only in the specific instance and for the specific purpose for which it was
given. No notice to or demand on Borrower in any case shall entitle Borrower to
any other or further notice or demand in similar or other circumstances. Any
amendment, modification, termination, waiver or consent effected in accordance
with this subsection 10.6 shall be binding upon each Lender at the time
outstanding, each future Lender and, if signed by Borrower, on Borrower.
10.7 INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or would otherwise be within
the limitations of, another covenant shall not avoid the occurrence of an Event
of Default or Potential Event of Default if such action is taken or condition
exists.
10.8 NOTICES.
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, telexed or sent by telefacsimile or United States mail
or courier service and shall be deemed to have been given when delivered in
person or by courier service, upon receipt of telefacsimile if received by 5
p.m. (local time) on a Business Day (or if not received by such time on a
Business Day, the telefacsimile shall be deemed received on the next Business
Day), or three Business Days after depositing it in the United States mail with
postage prepaid and properly addressed; PROVIDED that notices shall not be
effective until received. For the purposes hereof, the address of each party
hereto shall be as set forth under such party's name on the signature pages
hereof or (i) as to Borrower and Administrative Agent, such other address as
shall be designated by such Person in a written notice delivered to the other
parties hereto and (ii) as to each other party, such other address as shall be
designated by such party in a written notice delivered to Administrative Agent.
10.9 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
A. All representations, warranties and agreements made herein shall
survive the execution and delivery of this Agreement and the making of the Loans
and the issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by law to the
contrary, the agreements of Borrower set forth in subsections 2.6D, 2.7, 3.5A,
3.6, 10.2 and 10.3 and the agreements of Lenders set forth in subsections 9.2C,
9.4, 10.5 and 10.19 shall survive the payment of the Loans, the cancellation or
expiration of the Letters of Credit and the reimbursement of any amounts drawn
hereunder, and the termination of this Agreement.
10.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of any Agent or any Lender in the
exercise of any power, right or privilege hereunder or under any other Loan
Document shall impair such power, right or
100
privilege or be construed to be a waiver of any default or acquiescence therein,
nor shall any single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other power, right or
privilege. All rights and remedies existing under this Agreement and the other
Loan Documents are cumulative to, and not exclusive of, any rights or remedies
otherwise available.
10.11 MARSHALLING; PAYMENTS SET ASIDE.
Neither any Agent nor any Lender shall be under any obligation to
marshal any assets in favor of Borrower or any other party or against or in
payment of any or all of the Obligations. To the extent that a Obligor makes a
payment or payments to Administrative Agent or Lenders (or to Administrative
Agent for the benefit of Lenders), or Agents or Lenders enforce any security
interests or exercise their rights of setoff, and such payment or payments or
the proceeds of such enforcement or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, any other state or federal law, common law or any equitable
cause, then, to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, rights and remedies therefor
or related thereto, shall be revived and continued in full force and effect as
if such payment or payments had not been made or such enforcement or setoff had
not occurred.
10.12 SEVERABILITY.
In case any provision in or obligation under this Agreement or the
Notes shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
10.13 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS.
The obligations of Lenders hereunder are several and no Lender shall be
responsible for the obligations or Commitments of any other Lender hereunder.
Nothing contained herein or in any other Loan Document, and no action taken by
Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out of this Agreement and it shall not be necessary for any other
Lender to be joined as an additional party in any proceeding for such purpose.
10.14 HEADINGS.
Section and subsection headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
101
10.15 APPLICABLE LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
10.16 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of Lenders (it being understood that
Lenders' rights of assignment are subject to subsection 10.1). Neither
Borrower's rights or obligations hereunder nor any interest therein may be
assigned or delegated by Borrower without the prior written consent of all
Lenders.
10.17 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY OBLIGOR ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY OBLIGATION MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF
NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT BORROWER ACCEPTS FOR
ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH THIS AGREEMENT, SUCH OTHER LOAN DOCUMENT OR SUCH
OBLIGATION. Borrower hereby agrees that service of all process in any such
proceeding in any such court may be made by registered or certified mail, return
receipt requested, to Borrower at its address provided in subsection 10.8, such
service being hereby acknowledged by Borrower to be sufficient for personal
jurisdiction in any action against Borrower in any such court and to be
otherwise effective and binding service in every respect. Nothing herein shall
affect the right to serve process in any other manner permitted by law or shall
limit the right of any Lender to bring proceedings against Borrower in the
courts of any other jurisdiction.
10.18 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RIGHTS
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER
RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver is intended to
be all-encompassing of any and all disputes that may be filed in any court and
that relate to the subject matter of this transaction, including without
limitation contract claims, tort claims, breach of duty claims and all other
common law and statutory claims. Each party hereto acknowledges that this waiver
is a material inducement to enter into a business relationship, that each has
already relied on this waiver in entering into this Agreement, and that each
will
102
continue to rely on this waiver in their related future dealings. Each
party hereto further warrants and represents that it has reviewed this waiver
with its legal counsel and that it knowingly and voluntarily waives its jury
trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. In the event
of litigation, this Agreement may be filed as a written consent to a trial by
the court.
10.19 CONFIDENTIALITY.
Each Lender shall hold all non-public information identified by
Borrower as confidential obtained pursuant to the requirements of this Agreement
in accordance with such Lender's customary procedures for handling confidential
information of this nature and in accordance with safe and sound banking
practices, it being understood and agreed by Borrower that in any event a Lender
may make disclosures reasonably required by any bona fide assignee, transferee
or participant in connection with the contemplated assignment or transfer by
such Lender of any Loans or any participation therein or as required or
requested by any governmental agency or representative thereof or pursuant to
legal process; PROVIDED that, unless specifically prohibited by applicable law
or court order, each Lender shall notify Borrower of any request by any
governmental agency or representative thereof (other than any such request in
connection with any examination of the financial condition of such Lender by
such governmental agency) for disclosure of any such non-public information
prior to disclosure of such information; and PROVIDED, FURTHER that in no event
shall any Lender be obligated or required to return any materials furnished by
the Obligors or any of their respective Subsidiaries.
10.20 COUNTERPARTS; EFFECTIVENESS.
This Agreement and any amendments, waivers, consents or supplements
hereto or in connection herewith may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by Borrower and
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
[Remainder of page intentionally left blank]
103
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
BORROWER: ▇▇▇▇▇▇▇ MEZZANINE HOLDINGS LLC,
By: ________________________________________________
Name:
Title:
NOTICE ADDRESS FOR BORROWER:
▇▇▇▇▇▇▇ Mezzanine Holdings LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President and Chief Financial Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy (by the same means) to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telecopy:. (▇▇▇) ▇▇▇-▇▇▇▇
S-1
LENDERS: BANK OF MONTREAL, CHICAGO BRANCH,
individually and as Administrative Agent
By: ___________________________________
Name:
Title:
Notice Address:
16th Floor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
S-2
FLEET NATIONAL BANK, individually and as
Syndication Agent.
By: ___________________________________
Name:
Title:
Notice Address:
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
S-3
BANK OF AMERICA, N.A., individually and
as a Documentation Agent
By: ___________________________________
Name:
Title:
Notice Address:
▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
S-4
THE BANK OF NEW YORK, individually, as a
Documentation Agent and as Managing Agent
By: ___________________________________
Name:
Title:
Notice Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
S-5
ING (US) CAPITAL CORP.
By: ___________________________________
Name:
Title:
Notice Address:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
S-6
CREDIT SUISSE FIRST BOSTON
By: ___________________________________
Name:
Title:
Notice Address:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
S-7
U.S. BANK NATIONAL ASSOCIATION
By: ___________________________________
Name:
Title:
Notice Address:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
S-8
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By: ___________________________________
Name:
Title:
Notice Address:
Sixth and Marquette
▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vipa Chiraprut
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
S-9
SUMMIT BANK
By: ___________________________________
Name:
Title:
Notice Address:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
S-10
COOPERATEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
Notice Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
S-11
CITY NATIONAL BANK
By: ___________________________________
Name:
Title:
Notice Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Drum
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
S-12
SCHEDULE 2.1
LENDERS' COMMITMENTS AND PRO RATA SHARES
================================================== ========================== ============================
LENDER COMMITMENT PRO RATA SHARE
-------------------------------------------------- -------------------------- ----------------------------
Bank of Montreal, Chicago Branch
-------------------------------------------------- -------------------------- ----------------------------
Fleet National Bank
-------------------------------------------------- -------------------------- ----------------------------
Bank of American, N.A.
-------------------------------------------------- -------------------------- ----------------------------
The Bank of New York
-------------------------------------------------- -------------------------- ----------------------------
Ing (US) Capital Corp.
-------------------------------------------------- -------------------------- ----------------------------
Credit Suisse First Boston
-------------------------------------------------- -------------------------- ----------------------------
U.S. Bank National Association
-------------------------------------------------- -------------------------- ----------------------------
▇▇▇▇▇ Fargo Bank, National Association
-------------------------------------------------- -------------------------- ----------------------------
Summit Bank
-------------------------------------------------- -------------------------- ----------------------------
Cooperateve Centrale Raiffeisen- Boerenleenbank
B.A., "Rabobank Nederland", New York Branch
-------------------------------------------------- -------------------------- ----------------------------
City National Bank
-------------------------------------------------- -------------------------- ----------------------------
Total
================================================== ========================== ============================