EXHIBIT 10.1
EXECUTION COPY
CREDIT AGREEMENT
dated as of
July 14, 2005,
among
CUMULUS MEDIA INC.,
The Lenders Party Hereto
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
---------------------------
X.X. XXXXXX SECURITIES INC., as
Joint Lead Arranger and Joint Bookrunner
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arranger and Joint Bookrunner
BANK OF AMERICA N.A.,
as Syndication Agent
SUNTRUST BANK,
WACHOVIA BANK, NATIONAL ASSOCIATION,
CALYON NEW YORK BRANCH,
ROYAL BANK OF SCOTLAND,
GENERAL ELECTRIC CAPITAL CORPORATION,
ROYAL BANK OF CANADA,
U.S. BANK, NATIONAL ASSOCIATION,
THE BANK OF NEW YORK,
BNP PARIBAS,
SUMITOMO MITSUI BANKING CORPORATION,
as Co-Documentation Agents
TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms...................................................... 1
SECTION 1.02. Classification of Loans and Borrowings............................. 23
SECTION 1.03. Terms Generally.................................................... 24
SECTION 1.04. Accounting Terms; GAAP............................................. 24
ARTICLE II
The Credits
SECTION 2.01. Commitments; Term Loans............................................ 24
SECTION 2.02. Loans and Borrowings............................................... 25
SECTION 2.03. Requests for Borrowings............................................ 25
SECTION 2.04. Letters of Credit.................................................. 26
SECTION 2.05. Funding of Borrowings.............................................. 30
SECTION 2.06. Interest Elections................................................. 31
SECTION 2.07. Termination and Reduction of Commitments........................... 32
SECTION 2.08. Repayment of Loans; Evidence of Debt............................... 33
SECTION 2.09. Amortization of Term Loans......................................... 35
SECTION 2.10. Prepayment of Loans................................................ 36
SECTION 2.11. Fees............................................................... 37
SECTION 2.12. Interest........................................................... 38
SECTION 2.13. Alternate Rate of Interest......................................... 39
SECTION 2.14. Increased Costs.................................................... 39
SECTION 2.15. Break Funding Payments............................................. 40
SECTION 2.16. Taxes.............................................................. 41
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs........ 42
SECTION 2.18. Mitigation Obligations; Replacement of Lenders..................... 44
SECTION 2.19. Incremental Facilities............................................. 44
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers............................................... 45
SECTION 3.02. Authorization; Enforceability...................................... 46
SECTION 3.03. Governmental Approvals; No Conflicts............................... 46
SECTION 3.04. Financial Condition; No Material Adverse Change.................... 46
SECTION 3.05. Properties and Licenses............................................ 47
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SECTION 3.06. Litigation and Environmental Matters............................... 47
SECTION 3.07. Compliance with Laws and Agreements................................ 48
SECTION 3.08. Investment and Holding Company Status.............................. 48
SECTION 3.09. Tax Matters........................................................ 48
SECTION 3.10. ERISA.............................................................. 48
SECTION 3.11. Disclosure......................................................... 48
SECTION 3.12. Subsidiaries....................................................... 49
SECTION 3.13. Insurance.......................................................... 49
SECTION 3.14. Labor Matters...................................................... 49
SECTION 3.15. Solvency........................................................... 49
SECTION 3.16. Security Interests................................................. 50
SECTION 3.17. Specially Designated Nationals or Blocked Persons.................. 50
ARTICLE IV
Conditions
SECTION 4.01. Effective Date..................................................... 50
SECTION 4.02. Each Credit Event.................................................. 52
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information......................... 52
SECTION 5.02. Notices of Material Events......................................... 53
SECTION 5.03. Information Regarding Collateral................................... 54
SECTION 5.04. Existence; Conduct of Business..................................... 54
SECTION 5.05. Payment of Obligations............................................. 55
SECTION 5.06. Maintenance of Properties.......................................... 55
SECTION 5.07. Insurance.......................................................... 55
SECTION 5.08. Casualty and Condemnation.......................................... 55
SECTION 5.09. Books and Records; Inspection Rights............................... 55
SECTION 5.10. Compliance with Laws............................................... 56
SECTION 5.11. Use of Proceeds and Letters of Credit.............................. 56
SECTION 5.12. Additional Subsidiaries............................................ 56
SECTION 5.13. Further Assurances................................................. 56
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness; Certain Equity Securities............................ 57
SECTION 6.02. Liens.............................................................. 58
SECTION 6.03. Fundamental Changes................................................ 59
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions.......... 60
SECTION 6.05. Asset Sales........................................................ 61
ii
SECTION 6.06. Sale and Leaseback Transactions.................................... 62
SECTION 6.07. Hedging Agreements................................................. 62
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness.............. 63
SECTION 6.09. Transactions with Affiliates....................................... 64
SECTION 6.10. Restrictive Agreements............................................. 64
SECTION 6.11. FCC Licenses and License Subsidiaries.............................. 65
SECTION 6.12. Amendment of Material Documents.................................... 65
SECTION 6.13. Interest Expense Coverage Ratio.................................... 65
SECTION 6.14. Total Leverage Ratio............................................... 65
SECTION 6.15. Senior Secured Leverage Ratio...................................... 66
SECTION 6.16. Capital Expenditures............................................... 66
SECTION 6.17. Excluded Subsidiaries.............................................. 66
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices............................................................ 71
SECTION 9.02. Waivers; Amendments................................................ 72
SECTION 9.03. Expenses; Indemnity; Damage Waiver................................. 74
SECTION 9.04. Successors and Assigns............................................. 75
SECTION 9.05. Survival........................................................... 78
SECTION 9.06. Counterparts; Integration; Effectiveness........................... 79
SECTION 9.07. Severability....................................................... 79
SECTION 9.08. Right of Setoff.................................................... 79
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process......... 79
SECTION 9.10. WAIVER OF JURY TRIAL............................................... 80
SECTION 9.11. Headings........................................................... 80
SECTION 9.12. Confidentiality.................................................... 80
SECTION 9.13. Interest Rate Limitation........................................... 81
SECTION 9.14. USA Patriot Act.................................................... 81
SECTION 9.15. Waiver of Notice of Termination Under Existing Credit Agreement.... 82
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SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 3.05(c) -- Real Property
Schedule 3.05(d) -- FCC Licenses
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Existing Investments
Schedule 6.05 -- Radio Stations for Sale
Schedule 6.10 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Assumption
Exhibit B -- Form of Opinion of Borrower's Counsel
Exhibit C -- Form of Guarantee and Collateral Agreement
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CREDIT AGREEMENT dated as of July 14, 2005, among
CUMULUS MEDIA INC., the LENDERS party hereto, and
JPMORGAN CHASE BANK, N.A., as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01 Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Acquired Business" means any Person, property, business or asset
acquired (or, as applicable, proposed to be acquired) by the Borrower or a
Subsidiary Loan Party pursuant to a Permitted Acquisition.
"Additional Lender" has the meaning assigned to such term in Section
2.19.
"Adjusted EBITDA" means, for any period, the Consolidated EBITDA of
the Borrower for such period, adjusted (a) to include the Consolidated EBITDA of
any Acquired Business acquired during such period (and, solely for purposes of
determining whether a proposed acquisition is a Permitted Acquisition pursuant
to clauses (d) and (e) of the definition of the term Permitted Acquisition, any
Acquired Business that, at the time of calculation of Adjusted EBITDA for such
purpose, has been acquired subsequent to the end of such period and prior to
such time as well as that proposed to be acquired) pursuant to a Permitted
Acquisition and not subsequently sold, transferred or otherwise disposed of
during such period (or, solely for purposes of determining whether a proposed
acquisition is a Permitted Acquisition, subsequent to the end of such period and
prior to such time), based on (i) the actual Consolidated EBITDA of such
Acquired Business for such period (including the portion thereof attributable to
such period prior to the date of acquisition of such Acquired Business), (ii)
for purposes of determining whether a proposed acquisition is a Permitted
Acquisition pursuant to clauses (d) and (e) of the definition of the term
Permitted Acquisition, giving pro forma effect to identified cost savings from
any such Permitted Acquisition (or proposed acquisition) to the extent that the
Borrower shall demonstrate, in a certificate of its chief financial officer, in
detail and to the reasonable satisfaction of the Administrative Agent, that such
cost savings are achievable during such period and (iii) for purposes of
determining the Total Leverage Ratio and Senior Secured Leverage Ratio, giving
pro forma effect, in the portion of such period occurring prior to the date of
consummation of any such Permitted Acquisition, to identified cost savings from
any such Permitted Acquisition to the extent that the Borrower shall
demonstrate, in a certificate of its chief financial officer, in detail and to
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the reasonable satisfaction of the Administrative Agent, that such cost savings
are achievable during such period, and (b) to exclude the Consolidated EBITDA of
any Sold Business sold, transferred or otherwise disposed of during such period
(and, solely for purposes of determining whether a proposed acquisition is a
Permitted Acquisition pursuant to clauses (d) and (e) of the definition of the
term Permitted Acquisition, any Sold Business that, at the time of calculation
of Adjusted EBITDA for such purpose, has been sold, transferred or otherwise
disposed of subsequent to the end of such period and prior to such time), based
on the actual Consolidated EBITDA of such Sold Business for such period
(including the portion thereof attributable to such period prior to the date of
sale, transfer or disposition of such Sold Business).
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the product of (a) the LIBO Rate for
such Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMorgan Chase Bank, N.A., in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate
in effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect
on such day plus -1/2 of 1%. Any change in the Alternate Base Rate due to a
change in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Revolving Lender,
the percentage of the total Revolving Commitments represented by such Lender's
Revolving Commitment. If the Revolving Commitments have terminated or expired,
the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
"Applicable Rate" means, for any day with respect to any ABR Loan or
Eurodollar Loan that is a Revolving Loan or Tranche A Term Loan, or with respect
to the commitment fees payable hereunder, the applicable rate per annum set
forth below under the caption "ABR Spread", "Eurodollar Spread" or "Commitment
Fee", as the case may be, based upon the Total Leverage Ratio as of the most
recent determination date, provided that notwithstanding the Total Leverage
Ratio, until delivery of the Borrower's
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audited financial statements for the fiscal year ended December 31, 2005,
Category 1 below shall apply:
ABR Eurodollar Commitment
Total Leverage Ratio: Spread Spread Fee
--------------------- ------ ---------- ----------
Category 1 0.25% 1.25% 0.375%
----------
>5.00 to 1.00
Category 2 0.00% 1.00% 0.375%
----------
<5.00 to 1.00 and
>4.50 to 1.00
Category 3 0.00% 0.750% 0.300%
----------
<4.50 to 1.00 and
>4.00 to 1.00
Category 4 0.00% 0.675% 0.250%
----------
<4.00 to 1.00
For purposes of the foregoing, (i) the Total Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's fiscal year
based upon the Borrower's consolidated financial statements delivered pursuant
to Section 5.01(a) or (b) and (ii) each change in the Applicable Rate resulting
from a change in the Total Leverage Ratio shall be effective during the period
commencing on and including the date of delivery to the Administrative Agent of
such consolidated financial statements indicating such change and ending on the
date immediately preceding the effective date of the next such change; provided
that the Applicable Rate shall be deemed to be as provided in Category 1 of the
table set forth above, in each case (A) at any time that an Event of Default has
occurred and is continuing or (B) at the option of the Administrative Agent or
at the request of the Required Lenders if the Borrower fails to deliver the
consolidated financial statements required to be delivered by it pursuant to
Section 5.01(a) or (b), during the period from the expiration of the time for
delivery thereof until such consolidated financial statements are delivered.
"Assessment Rate" means, for any day, the annual assessment rate in
effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
"Asset Swap Transaction" means a substantially concurrent purchase
and sale, or exchange, of a Broadcasting Asset of the Borrower, or all the
Equity Interests in a Subsidiary owning a Broadcasting Asset, for a Broadcasting
Asset of another Person or
4
group of affiliated Persons, or all the Equity Interests in a Person or group of
affiliated Persons owning a Broadcasting Asset, provided that (a) the portion of
Broadcast Cash Flow (for the period of four consecutive fiscal quarters most
recently ended prior to the date of such transaction for which financial
statements are available) attributable to the Broadcasting Asset being sold or
exchanged and all other Broadcasting Assets so sold or exchanged pursuant to
such transactions during such period or subsequent to the end of such period and
on or prior to the date of determination shall not exceed 20% of the Broadcast
Cash Flow of the Borrower for such period, (b) the portion of Broadcast Cash
Flow (for the period from the Effective Date to and including the last day of
the period of four consecutive fiscal quarters most recently ended prior to the
date of such transaction for which financial statements are available)
attributable to the Broadcasting Asset being sold or exchanged and all other
Broadcasting Assets so sold or exchanged pursuant to such transactions during
such period or subsequent to the end of such period and on or prior to the date
of determination shall not exceed 45% of the Broadcast Cash Flow of the Borrower
for such period and (c) the Borrower provides the Administrative Agent with
appropriate supporting documentation if reasonably requested by the
Administrative Agent, including any asset purchase and sale or exchange
agreement in connection with such transaction, opinions of counsel in connection
therewith and copies of an FCC consent on Form 732 (or any comparable form
issued by the FCC) relating to the transfer of control or assignment of the FCC
Licenses of the acquired Broadcasting Asset to the Borrower or its Subsidiaries
and, unless the Administrative Agent shall otherwise agree, such consent shall
have become a Final Order. For purposes of determining the portion of Broadcast
Cash Flow attributable to a Broadcasting Asset pursuant to clause (a) or (b)
above, if such Broadcasting Asset was acquired by a Loan Party subsequent to the
first day of the relevant period for which the determination is being made, then
the portion of Broadcast Cash Flow attributable to such Broadcasting Asset for
such period shall be deemed to include the pro forma Broadcast Cash Flow that
would have been attributable to such Broadcasting Asset for the portion of such
period prior to the date of acquisition (as though such Broadcasting Asset had
been acquired on the first day of the relevant period).
"Assignment and Assumption" means an assignment and assumption
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in substantially the form of Exhibit A or any other form approved by the
Administrative Agent.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD
Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower" means Cumulus Media Inc., a Delaware corporation.
"Borrowing" means Loans of the same Class and Type, made, converted
or continued on the same date and, in the case of Eurodollar Loans, as to which
a single Interest Period is in effect.
5
"Borrowing Request" means a request by the Borrower for a Borrowing
in accordance with Section 2.03.
"Broadcasting Asset" means all or substantially all the assets used
and useful for operating a commercial radio broadcast station pursuant to a FCC
License, including the rights to use such FCC License.
"Broadcast Cash Flow" means, for any period, Consolidated EBITDA for
such period plus, to the extent deducted in calculating such Consolidated
EBITDA, corporate level general and administrative expenses of the Borrower and
the Subsidiary Loan Parties for such period (calculated in a manner consistent
with the calculation of such expenses in the consolidated financial statements
of the Borrower for such period).
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Capital Expenditures" means, for any period, (a) the additions to
property, plant and equipment and other capital expenditures of the Borrower and
its consolidated Subsidiary Loan Parties that are (or would be) set forth in a
consolidated statement of cash flows of the Borrower for such period prepared in
accordance with GAAP and (b) Capital Lease Obligations incurred by the Borrower
and its consolidated Subsidiary Loan Parties during such period.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the Effective Date), of
Equity Interests representing more than 35% of the aggregate ordinary voting
power represented by the issued and outstanding Equity Interests in the Borrower
(other than such an acquisition by a Permitted Owner); (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the
Borrower by Persons who were neither (i) nominated by the board of directors of
the Borrower nor (ii) appointed by directors so nominated; or (c) the
acquisition of direct or indirect Control of the Borrower by any Person or group
(other than such an acquisition by a Permitted Owner).
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"Change in Law" means (a) the adoption of any law, rule or
regulation after the Effective Date, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the Effective Date or (c) compliance by any Lender or the
Issuing Bank (or, for purposes of Section 2.14(b), by any lending office of such
Lender or by such Lender's or the Issuing Bank's holding company, if any) with
any request, guideline or directive (whether or not having the force of law) of
any Governmental Authority made or issued after the Effective Date.
"Charges" has the meaning assigned to such term in Section 9.13.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Tranche A Term Loans and, when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Commitment, Tranche A Term Commitment or
Incremental Term Commitment.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" means any and all "Collateral", as defined in any
applicable Security Document.
"Collateral Agreement" means the Guarantee and Collateral Agreement
among the Loan Parties and the Administrative Agent, substantially in the form
of Exhibit C.
"Collateral and Guarantee Requirement" means the requirement that:
(a) the Administrative Agent shall have received from each Loan
Party either (i) a counterpart of the Collateral Agreement duly executed
and delivered on behalf of such Loan Party or (ii) in the case of any
Person that becomes a Loan Party after the Effective Date, a supplement to
the Collateral Agreement, in the form specified therein, duly executed and
delivered on behalf of such Loan Party;
(b) all outstanding Equity Interests of each Subsidiary owned by or
on behalf of any Loan Party shall have been pledged pursuant to the
Collateral Agreement (except that such Loan Parties shall not be required
to pledge more than 65% of the outstanding voting Equity Interests of any
Foreign Subsidiary that is not a Loan Party) and the Administrative Agent
shall have received, to the extent required by the Collateral Agreement,
certificates or other instruments representing all such Equity Interests,
together with stock powers or other instruments of transfer with respect
thereto endorsed in blank;
(c) all Indebtedness of the Borrower and each Subsidiary that is
owing to any Loan Party shall be pledged to the Administrative Agent
pursuant to the Collateral Agreement via book entry as an account owing to
the Administrative Agent and, to the extent that any such Indebtedness is
evidenced by a promissory
7
note, the Administrative Agent shall have received all such promissory
notes, together with instruments of transfer with respect thereto endorsed
in blank;
(d) all documents and instruments, including Uniform Commercial Code
financing statements, required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded to create the
Liens intended to be created by the Collateral Agreement and perfect such
Liens to the extent required by, and with the priority required by, the
Collateral Agreement, shall have been filed, registered or recorded or
delivered to the Administrative Agent for filing, registration or
recording;
(e) the Administrative Agent shall have received (i) counterparts of
a Mortgage with respect to each Mortgaged Property duly executed and
delivered by the record owner of such Mortgaged Property, (ii) a policy or
policies of title insurance issued by a nationally recognized title
insurance company insuring the Lien of each such Mortgage as a valid first
Lien on the Mortgaged Property described therein, free of any other Liens
except as expressly permitted by Section 6.02, together with such
endorsements, coinsurance and reinsurance as the Administrative Agent or
the Required Lenders may reasonably request, and (iii) such surveys,
abstracts, appraisals, legal opinions and other documents as the
Administrative Agent or the Required Lenders may reasonably request with
respect to any such Mortgage or Mortgaged Property; and
(f) each Loan Party shall have obtained all consents and approvals
required to be obtained by it in connection with the execution and
delivery of all Security Documents to which it is a party, the performance
of its obligations thereunder and the granting by it of the Liens
thereunder.
"Commitment" means a Revolving Commitment, Tranche A Term Commitment
or Incremental Term Commitment, if any, or any combination thereof (as the
context requires).
"Consolidated EBITDA" means, for any period, Consolidated Net Income
for such period plus (a) without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of (i) consolidated interest
expense for such period plus (ii) consolidated income tax expense for such
period plus (iii) all amounts attributable to depreciation and amortization for
such period plus (iv) any extraordinary, unusual or non-recurring expenses or
losses (including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, losses on sales of
assets outside of the ordinary course of business) for such period plus (v) any
other non-cash charges (other than write-offs or write-downs during such period
of inventory, accounts receivable or any other current assets in the ordinary
course of business), provided that in the event that the Borrower or any
Subsidiary Loan Party makes any cash payment in respect of any such non-cash
charge, such cash payment shall be deducted from Consolidated EBITDA in the
period in which such payment is made, and minus (b) without duplication and to
the extent included in determining such Consolidated Net Income, the sum of (i)
any extraordinary, unusual or
8
non-recurring income or gains (including, whether or not otherwise includable as
a separate item in the statement of such Consolidated Net Income for such
period, gains on the sales of assets outside of the ordinary course of business)
for such period plus (ii) any other non-cash income, all determined on a
consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the excess of
(a) the sum of (i) the interest expense (including imputed interest expense in
respect of Capital Lease Obligations) of the Borrower and the Subsidiary Loan
Parties for such period, determined on a consolidated basis in accordance with
GAAP plus (ii) any interest accrued during such period in respect of
Indebtedness of the Borrower or any Subsidiary Loan Party that is required to be
capitalized rather than included in consolidated interest expense for such
period in accordance with GAAP plus (iii) any cash payments made during such
period in respect of obligations referred to in clause (b)(iii) below that were
amortized or accrued in a previous period minus (b) the sum of (i) interest
income of the Borrower and the Subsidiary Loan Parties for such period,
determined on a consolidated basis in accordance with GAAP plus (ii) to the
extent included in such consolidated interest expense for such period, non-cash
amounts attributable to amortization of financing costs paid in a previous
period plus (iii) to the extent included in such consolidated interest expense
for such period, non-cash amounts attributable to amortization of debt discounts
for such period.
"Consolidated Net Income" means, for any period, the net income or
loss of the Borrower and the Subsidiary Loan Parties for such period determined
on a consolidated basis in accordance with GAAP; provided that there shall be
excluded from such net income or loss (a) the income of any Person (other than
the Borrower) in which any other Person (other than the Borrower or any
Subsidiary Loan Party or any director holding qualifying shares in compliance
with applicable law) owns an Equity Interest, except to the extent of the amount
of dividends or other distributions actually paid to the Borrower or any of the
Subsidiary Loan Parties during such period, and (b) the income or loss of any
Person accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Borrower or any Subsidiary or the date that such Person's
assets are acquired by the Borrower or any Subsidiary.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"Disqualified Equity Interest" means, with respect to any Person,
any Equity Interest that by its terms or otherwise (a) matures or is subject to
mandatory
9
redemption or repurchase pursuant to a sinking fund obligation or otherwise; or
(b) is convertible into or exchangeable or exercisable for Indebtedness or any
Disqualified Equity Interest at the option of the holder thereof; or (c) may be
required to be redeemed or repurchased at the option of the holder thereof, in
whole or in part, in each case on or prior to the date that is 180 days after
the Maturity Date.
"dollars" or "$" refers to lawful money of the United States of
America.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interests.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with
10
respect to the termination of any Plan; (e) the receipt by the Borrower or any
ERISA Affiliate from the PBGC or a plan administrator of any notice relating to
an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
VII.
"Excluded Borrower Stock" means any shares of common stock of the
Borrower that (a) constitute "margin stock" within the meaning of Regulation U
of the Board and (b) are purchased or redeemed by the Borrower with the proceeds
of any Loans and remain as treasury stock instead of being cancelled.
"Excluded Subsidiary" means, subject to Section 6.17, (a) Foreign
Subsidiaries and (b) Broadcast Software International Inc., Cumulus Internet
Services Inc., Cumulus Telecommunications Inc., Southern Outdoor Graphics, Inc.,
Express Signs Inc. and their respective Subsidiaries.
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender, the Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction described in clause (a) above and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.18(b)), any withholding tax that (i) is in effect and would
apply to amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement (or designates a new lending office), except
to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to any withholding tax
pursuant to Section 2.16(a), or (ii) is attributable to such Foreign Lender's
failure to comply with Section 2.16(e).
"Existing Credit Agreement" means the Credit Agreement, dated as of
March 28, 2002, as amended and restated as of November 18, 2004, among the
11
Borrower, the lenders party thereto and JPMorgan Chase Bank, N.A., as
Administrative Agent.
"Existing Letters of Credit" means letters of credit issued under
the Existing Credit Agreement that are outstanding on the Effective Date.
"FCC" means the United States Federal Communications Commission or
any successor agency thereof.
"FCC License" means any license granted by the FCC to the Borrower
or any Subsidiary or that is used by the Borrower or any Subsidiary in the
conduct of its business.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Final Order" means, with respect to the assignment or transfer of
any FCC License, an order of the FCC approving such assignment or transfer that
is final (i.e., no longer subject to further judicial or administrative review),
as to which no requests for judicial or administrative review are pending and
that has not been reversed, stayed, enjoined, set aside, annulled or suspended.
"Financial Officer" means the chief financial officer, vice
president of finance, principal accounting officer, treasurer or controller of
the Borrower.
"Foreign Lender" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized under
the laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States
of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
12
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Incremental Facilities" has the meaning assigned to such term in
Section 2.19.
"Incremental Facility Amendment" has the meaning assigned to such
term in Section 2.19.
"Incremental Revolving Commitment" means, with respect to each
Lender, the commitment, if any, of such Lender to make Incremental Revolving
Loans pursuant to the terms of an Incremental Facility Amendment.
"Incremental Revolving Exposure" means, with respect to any
Incremental Lender at any time, the aggregate principal amount of such
Incremental Revolving Lender's Incremental Revolving Loans at such time.
"Incremental Revolving Facility" has the meaning assigned to such
term in Section 2.19.
"Incremental Revolving Lender" means a Lender with an Incremental
Revolving Commitment or, if the Incremental Revolving Commitments have
terminated or expired, a Lender with Incremental Revolving Exposure.
13
"Incremental Revolving Loan" means a Loan made pursuant to an
Incremental Revolving Facility.
"Incremental Term Commitment" means, with respect to each Lender,
the commitment, if any, of such Lender to make an Incremental Term Loan pursuant
to the terms of an Incremental Facility Amendment.
"Incremental Term Facility" has the meaning assigned to such term in
Section 2.19.
"Incremental Term Lender" means a Lender with an Incremental Term
Commitment or an outstanding Incremental Term Loan.
"Incremental Term Loan" means a Loan made pursuant to an
Incremental Term Facility.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person, (d) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding current accounts
payable incurred in the ordinary course of business), (e) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (f) all Guarantees by such Person of Indebtedness of others, (g)
all Capital Lease Obligations of such Person, (h) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit
and letters of guaranty and (i) all obligations, contingent or otherwise, of
such Person in respect of bankers' acceptances. The Indebtedness of any Person
shall include the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Information Memorandum" means the Confidential Amendment Package
dated June 2005 relating to the Borrower and the Transactions.
"Interest Election Request" means a request by the Borrower to
convert or continue a Borrowing in accordance with Section 2.06.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December and (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of
14
more than three months' duration, each day prior to the last day of such
Interest Period that occurs at intervals of three months' duration after the
first day of such Interest Period.
"Interest Period" means, with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect; provided, that (a) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (b) any
Interest Period that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Issuing Bank" means JPMorgan Chase Bank, N.A., in its capacity as
the issuer of Letters of Credit hereunder, and its successors in such capacity
as provided in Section 2.04(i). The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing
Bank, in which case the term "Issuing Bank" shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate.
"LC Disbursement" means a payment made by the Issuing Bank pursuant
to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time. The LC Exposure of any Revolving Lender
at any time shall be its Applicable Percentage of the total LC Exposure at such
time.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Assumption or an Incremental Facility Amendment, other than any such Person that
ceases to be a party hereto pursuant to an Assignment and Assumption.
"Letter of Credit" means any letter of credit issued pursuant to
this Agreement, including the Existing Letters of Credit.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for
15
purposes of providing quotations of interest rates applicable to dollar deposits
in the London interbank market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, as the rate for
dollar deposits with a maturity comparable to such Interest Period. In the event
that such rate is not available at such time for any reason, then the "LIBO
Rate" with respect to such Eurodollar Borrowing for such Interest Period shall
be the rate at which dollar deposits of $5,000,000 and for a maturity comparable
to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"License Subsidiary" has the meaning assigned to such term in
Section 6.11.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement, the Collateral Agreement and
the other Security Documents.
"Loan Parties" means the Borrower and the Subsidiary Loan Parties.
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Agreement.
"Long-Term Indebtedness" means any Indebtedness that, in accordance
with GAAP, constitutes (or, when incurred, constituted) a long-term liability.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations or condition, financial or otherwise, of the
Borrower and the Subsidiary Loan Parties taken as a whole, (b) the ability of
any Loan Party to perform any of its obligations under any Loan Document or (c)
the rights of or benefits available to the Lenders under any Loan Document.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of the Borrower and the Subsidiary Loan Parties in an
aggregate principal amount exceeding $10,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the Borrower
or any Subsidiary Loan Party in respect of any Hedging Agreement at any time
shall be the maximum aggregate amount (giving effect to any netting agreements)
that the Borrower or such Subsidiary Loan Party would be required to pay if such
Hedging Agreement were terminated at such time.
16
"Maturity Date" means July 14, 2012.
"Maximum Rate" has the meaning assigned to such term in Section
9.13.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means a mortgage, deed of trust, assignment of leases and
rents, leasehold mortgage or other security document granting a Lien on any
Mortgaged Property to secure the Obligations. Each Mortgage shall be
satisfactory in form and substance to the Administrative Agent.
"Mortgaged Property" means each parcel of real property and the
improvements thereto with respect to which a Mortgage is granted pursuant to
Section 5.12 or 5.13.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event, (a) the cash
proceeds received in respect of such event including (i) any cash received in
respect of any non-cash proceeds, but only as and when received, (ii) in the
case of a casualty, insurance proceeds (excluding proceeds of business
interruption insurance), and (iii) in the case of a condemnation or similar
event, condemnation awards and similar payments, net of (b) the sum of (i) all
reasonable fees and out-of-pocket expenses paid by the Borrower and the
Subsidiary Loan Parties to third parties (other than Affiliates) in connection
with such event, (ii) in the case of a sale, transfer or other disposition of an
asset (including pursuant to a sale and leaseback transaction or a casualty or a
condemnation or similar proceeding), the amount of all payments required to be
made by the Borrower and the Subsidiary Loan Parties as a result of such event
to repay Indebtedness (other than Loans) secured by such asset and (iii) the
amount of all taxes paid (or reasonably estimated to be payable) by the Borrower
or any of the Subsidiary Loan Parties, and the amount of any reserves
established by the Borrower and the Subsidiary Loan Parties to fund contingent
liabilities reasonably estimated to be payable, in each case during the year
that such event occurred or the next succeeding year and that are directly
attributable to such event (as determined reasonably and in good faith by the
chief financial officer of the Borrower).
"Non-Recourse Debt" means Indebtedness (a) as to which neither the
Borrower nor any Subsidiary Loan Party (i) provides any Guarantee or credit
support of any kind (including any undertaking, guarantee, indemnity, agreement
or instrument that would constitute Indebtedness) or (ii) is directly or
indirectly liable for (as a guarantor or otherwise), in each case, except to the
extent permitted by Section 6.04, (b) no default with respect to which would
permit any holder of any Indebtedness (other than the Loans) of the Borrower or
any Subsidiary Loan Party to declare a default on such other Indebtedness or
cause the payment thereof to be accelerated or payable prior to its stated
maturity and (c) the explicit terms of which provide that there is no recourse
against the Equity Interests in or any assets of the Borrower or any Subsidiary
Loan Party.
17
"Obligations" has the meaning assigned to such term in the
Collateral Agreement.
"Other Taxes" means any and all present or future recording, stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Perfection Certificate" means a certificate in the form of Exhibit
II to the Collateral Agreement or any other form approved by the Administrative
Agent.
"Permitted Acquisition" means any Asset Swap Transaction or any
other acquisition of all or substantially all the assets of, or Equity Interests
in, a Person or division or line of business of a Person that is engaged in a
line or lines of business reasonably related (ancillary or complementary) to the
line of business or lines of business of the Borrower or any Subsidiary Loan
Party if, immediately after giving effect thereto, (a) no Default has occurred
and is continuing or would result therefrom, (b) all transactions related
thereto are consummated in accordance with applicable laws, (c) in the case of
an acquisition of Equity Interests in a Person, 100% of the Equity Interests in
such Person, and any other Subsidiary resulting from such acquisition, shall be
owned directly or indirectly by the Borrower or a Subsidiary Loan Party and all
actions required to be taken, if any, with respect to each Subsidiary resulting
from such acquisition under Sections 5.12 and 5.13 have been taken, (d) the
Borrower and the Subsidiary Loan Parties are in compliance, on a pro forma basis
after giving effect to such acquisition, with the covenants contained in
Sections 6.13, 6.14, 6.15 (if applicable) and 6.16 recomputed as of the last day
of the most recently ended fiscal quarter of the Borrower for which financial
statements are available as if such acquisition had occurred on the first day of
each relevant period for testing such compliance (using Adjusted EBITDA in lieu
of Consolidated EBITDA for the relevant period) and (e) in the case of any such
acquisition (or series or group of related acquisitions) in which the aggregate
fair market value of the assets acquired exceeds $7,500,000, the Borrower has
delivered to the Administrative Agent an officers' certificate to the effect set
forth in clauses (a), (b) and (d) above, together with all relevant financial
information for the business or entity being acquired. Notwithstanding clause
(c) above, in the case of an acquisition of 100% of the Equity Interests in a
Person that satisfies the other conditions applicable to a Permitted
Acquisition, such acquisition shall not fail to qualify as a Permitted
Acquisition solely by reason of such Person having subsidiaries that are not
wholly owned by such Person immediately prior to such acquisition, provided
that, at the time of such acquisition, the Adjusted EBITDA attributable to all
such non-wholly owned subsidiaries for the period of four consecutive fiscal
quarters most recently ended prior to the date of such acquisition for which
financial information is available does not exceed 10% of Adjusted EBITDA of
such acquired Person for the same period.
18
"Permitted Debt" means Indebtedness of the Borrower in respect of
debt securities issued by the Borrower in the capital markets; provided that (a)
such Indebtedness shall mature on a date that is no later than the date that is
six months after the Maturity Date and does not require any scheduled principal
payments (or sinking fund or similar payments) prior to such date; (b) such
Indebtedness is not Guaranteed by any Person that is not a Subsidiary Loan Party
party to the Collateral Agreement; (c) such Indebtedness and any Guarantees
thereof are unsecured; (d) the terms and conditions of such Indebtedness and any
Guarantees thereof (including redemption provisions, covenants and events of
default) are no less favorable to the Loan Parties and the Lenders then those
customary for high-yield debt securities publicly issued in the capital markets
at the time such Indebtedness is incurred; (e) at the time of, and after giving
effect to, the incurrence of such Indebtedness, no Default shall have occurred
and be continuing and the Borrower shall be in compliance, on a pro forma basis
after giving effect to the incurrence of such Indebtedness, with the covenants
contained in Sections 6.13, 6.14, 6.15 and 6.16; and (f) the Borrower shall have
delivered to the Administrative Agent, at or prior to the time such Indebtedness
is incurred, (i) a certificate signed by a Financial Officer confirming
compliance with clauses (a), (b), (c), (d) and (e) above (including calculations
demonstrating compliance with clause (e) above) and (ii) copies of all documents
evidencing or governing the terms of such Indebtedness and any Guarantees
thereof, certified to be complete and correct.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more
than 30 days or are being contested in compliance with Section 5.05;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary
course of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Borrower or any Subsidiary;
19
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in
each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from
the date of acquisition thereof and having, at such date of acquisition,
the highest credit rating obtainable from S&P or from Xxxxx'x;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition
thereof issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States of America or any State
thereof which has a combined capital and surplus and undivided profits of
not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and entered
into with a financial institution satisfying the criteria described in
clause (c) above; and
(e) to the extent not covered by clauses (a) through (d) above, (i)
any letter-of-credit-backed seven-day put bonds, (ii) 7-, 28- and 35-day
auction rate or re-marked taxable or tax-free paper, (iii) 49-day money
market preferred stock and (iv) any Dutch auction municipal preferred
stock, in each case having, at the date of acquisition thereof, a credit
rating of (A) A or better from S&P and (B) A3 or better from Xxxxx'x.
"Permitted Owner" means any Principal or, with respect to such
Principal, (a) any spouse or immediate family member of such Principal or (b)
any trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of such Principal and/or such other
Persons referred to in the immediately preceding clause (a).
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA
20
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Prepayment Event" means:
(a) any sale, transfer or other disposition (including pursuant to a
sale and leaseback transaction) of any property or asset of the Borrower
or any Subsidiary Loan Party, other than (i) dispositions described in
clauses (a), (b), (d) and (f) of Section 6.05 and (ii) other dispositions
resulting in aggregate Net Proceeds not exceeding $250,000 during any
fiscal year of the Borrower; or
(b) any casualty or other insured damage to, or any taking under
power of eminent domain or by condemnation or similar proceeding of, any
property or asset of the Borrower or any Subsidiary Loan Party, but only
to the extent that (i) the Net Proceeds therefrom have not been applied or
committed by contract to be applied to repair, restore or replace such
property or asset within 180 days after such event or (ii) in the case of
any such Net Proceeds committed to be so applied (but not yet applied) as
of the date that is 180 days after such event, such Net Proceeds have not
been so applied within 360 days after such event; or
(c) the incurrence by the Borrower or any Subsidiary Loan Party of
any Indebtedness at any time when the Total Leverage Ratio is greater than
or equal to 5.00 to 1.00 after giving effect to such incurrence, but
excluding any Indebtedness permitted by Section 6.01.
"Principal" means Xxxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxx, Xx.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by JPMorgan Chase Bank, N.A., as its prime rate in effect at
its principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Register" has the meaning assigned to such term in Section 9.04.
"Reinvestment Amount" has the meaning assigned to such term in
Section 2.10(c).
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents,
trustees and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving
Exposures, Incremental Revolving Exposures, Tranche A Term Loans, Incremental
Term Loans and unused Commitments representing more than 50% of the sum of the
total Revolving Exposures, Incremental Revolving Exposures, outstanding Tranche
A Term Loans, outstanding Incremental Term Loans and unused Commitments at such
time.
21
"Restricted Payment" means (a) any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in the Borrower or any Subsidiary, or (b) any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancelation or termination of (i) any such Equity Interests in the Borrower or
any Subsidiary or (ii) any option, warrant or other right to acquire any such
Equity Interests in the Borrower or any Subsidiary.
"Revolving Availability Period" means the period from and including
the Effective Date to but excluding the earlier of the Maturity Date and the
date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender's Revolving Exposure
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.07 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The amount of each
Lender's Revolving Commitment is set forth on Schedule 2.01, or in the
Assignment and Assumption pursuant to which such Lender shall have assumed its
Revolving Commitment, as applicable. The initial aggregate amount of the
Revolving Commitments is $400,000,000.
"Revolving Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Loans and
its LC Exposure at such time.
"Revolving Lender" means a Lender with a Revolving Commitment or, if
the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"Revolving Loan" means a Loan made pursuant to clause (b) of Section
2.01.
"Security Documents" means the Collateral Agreement, the Mortgages
and each other security agreement or other instrument or document executed and
delivered pursuant to Section 5.12 or 5.13 to secure any of the Obligations.
"Senior Secured Leverage Ratio" means, on any date the ratio of (a)
Total Indebtedness (excluding therefrom any Indebtedness that is unsecured) as
of such date to (b) Adjusted EBITDA for the period of four consecutive fiscal
quarters of the Borrower ended on such date (or, if such date is not the last
day of a fiscal quarter, ended on the last day of the fiscal quarter of the
Borrower most recently ended prior to such date).
"Sold Business" means any Person, property, business or asset sold,
transferred or otherwise disposed of by the Borrower or any Subsidiary Loan
Party, other than in the ordinary course of business.
22
"S&P" means Standard & Poor's Ratings Group, Inc.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject (a) with
respect to the Base CD Rate, for new negotiable nonpersonal time deposits in
dollars of over $100,000 with maturities approximately equal to three months and
(b) with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board). Such
reserve percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Loan Party" means any Subsidiary that is not an Excluded
Subsidiary.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Three-Month Secondary CD Rate" means, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day is not a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day) or, if such rate is not so reported on such day or such
next preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 a.m., New York City
23
time, on such day (or, if such day is not a Business Day, on the next preceding
Business Day) by the Administrative Agent from three negotiable certificate of
deposit dealers of recognized standing selected by it.
"Total Indebtedness" means, as of any date, the sum of (a) the
aggregate principal amount of Indebtedness of the Borrower and the Subsidiary
Loan Parties outstanding as of such date, in the amount that would be reflected
on a balance sheet prepared as of such date on a consolidated basis in
accordance with GAAP, plus (b) the aggregate principal amount of Indebtedness of
the Borrower and the Subsidiary Loan Parties outstanding as of such date that is
not required to be reflected on a balance sheet in accordance with GAAP,
determined on a consolidated basis; provided that, for purposes of clause (b)
above, the term "Indebtedness" shall not include contingent obligations of the
Borrower or any Subsidiary Loan Party as an account party in respect of any
letter of credit or letter of guaranty unless such letter of credit or letter of
guaranty supports an obligation that constitutes Indebtedness.
"Total Leverage Ratio" means, on any date, the ratio of (a) Total
Indebtedness as of such date to (b) Adjusted EBITDA for the period of four
consecutive fiscal quarters of the Borrower ended on such date (or, if such date
is not the last day of a fiscal quarter, ended on the last day of the fiscal
quarter of the Borrower most recently ended prior to such date).
"Tranche A Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make a Tranche A Term Loan pursuant to
clause (a) of Section 2.01. The initial aggregate amount of the Lenders' Tranche
A Commitments is $400,000,000.
"Tranche A Lender" means a Lender with a Tranche A Commitment or an
outstanding Tranche A Term Loan.
"Tranche A Term Loan" means a Loan made pursuant to clause (a) of
Section 2.01.
"Transactions" means the execution, delivery and performance by each
Loan Party of each Loan Document to which it is a party, the borrowing of Loans
hereunder, the use of the proceeds thereof and the issuance of Letters of
Credit.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02 Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar
24
Revolving Loan"). Borrowings also may be classified and referred to by Class
(e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurodollar Borrowing") or
by Class and Type (e.g., a "Eurodollar Revolving Borrowing").
SECTION 1.03 Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04 Accounting Terms; GAAP. (a) Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the Effective Date in GAAP or in the application thereof
on the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
(b) Any accounting or financial determination to be made in respect
of the Borrower and the Subsidiary Loan Parties on a consolidated basis shall be
made excluding the accounts of the Excluded Subsidiaries that would otherwise be
consolidated therewith in accordance with GAAP.
ARTICLE II
The Credits
SECTION 2.01 Commitments; Term Loans. Subject to the terms and
conditions set forth herein, each Lender agrees (a) to make Tranche A Term Loans
to the
25
Borrower on the Effective Date in an aggregate principal amount not exceeding
its Tranche A Commitment, and (b) to make Revolving Loans to the Borrower from
time to time during the Revolving Availability Period in an aggregate principal
amount that will not result in such Lender's Revolving Exposure exceeding such
Lender's Revolving Commitment. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Revolving Loans. Amounts repaid or prepaid in respect of Tranche A Term
Loans may not be reborrowed.
SECTION 2.02 Loans and Borrowings. (a) Each Loan shall be made as
part of a Borrowing consisting of Loans of the same Class and Type made by the
Lenders ratably in accordance with their respective Commitments of the
applicable Class. The failure of any Lender to make any Loan required to be made
by it shall not relieve any other Lender of its obligations hereunder; provided
that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.13, each Revolving Borrowing and Tranche A
Term Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as
the Borrower may request in accordance herewith. Each Lender at its option may
make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate
of such Lender to make such Loan; provided that any exercise of such option
shall not affect the obligation of the Borrower to repay such Loan in accordance
with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that
is an integral multiple of $250,000 and not less than $500,000; provided that an
ABR Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Revolving Commitments or that is required to
finance the reimbursement of an LC Disbursement as contemplated by Section
2.04(e). Borrowings of more than one Type and Class may be outstanding at the
same time; provided that there shall not at any time be more than a total of
fifteen Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03 Requests for Borrowings. To request a Revolving
Borrowing, the Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurodollar Borrowing, not later than 12:00 a.m.,
New York City time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 10:00 a.m., New
York City time, on the date of the proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request
in a form approved by the Administrative Agent and signed by the Borrower. Each
such telephonic and written
26
Borrowing Request shall specify the following information in compliance with
Section 2.02:
(i) the Class and aggregate amount of such Borrowing;
(ii) the date of such Borrowing, which shall be a
Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing
or a Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a
period contemplated by the definition of the term "Interest
Period"; and
(v) the location and number of the Borrower's account
to which funds are to be disbursed, which shall comply with
the requirements of Section 2.05.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed
to have selected an Interest Period of one month's duration. Promptly following
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04 Letters of Credit. (a) General. Subject to the terms
and conditions set forth herein, the Borrower may request the issuance of
Letters of Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time
during the Revolving Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, the Issuing Bank relating to
any Letter of Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew or
extend such
27
Letter of Credit. If requested by the Issuing Bank, the Borrower also shall
submit a letter of credit application on the Issuing Bank's standard form in
connection with any request for a Letter of Credit. A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension, (i) the LC Exposure shall not exceed $25,000,000 and (ii)
the total Revolving Exposures shall not exceed the total Revolving Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or prior
to the close of business on the earlier of (i) the date one year after the date
of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Revolving Lender, and each Revolving Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to
pay to the Administrative Agent, for the account of the Issuing Bank, such
Lender's Applicable Percentage of each LC Disbursement made by the Issuing Bank
and not reimbursed by the Borrower on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason. Each Revolving Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
LC Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on the date that
such LC Disbursement is made, if the Borrower shall have received notice of such
LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if
such notice has not been received by the Borrower prior to such time on such
date, then not later than 12:00 noon, New York City time, on (i) the Business
Day that the Borrower receives such notice, if such notice is received prior to
10:00 a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt; provided that,
if such LC Disbursement is not less than $500,000, the Borrower may, subject to
the conditions to borrowing set forth herein, request in accordance with Section
2.03 that such payment
28
be financed with an ABR Revolving Borrowing in an equivalent amount and, to the
extent so financed, the Borrower's obligation to make such payment shall be
discharged and replaced by the resulting ABR Revolving Borrowing. If the
Borrower fails to make such payment when due, the Administrative Agent shall
notify each Revolving Lender of the applicable LC Disbursement, the payment then
due from the Borrower in respect thereof and such Revolving Lender's Applicable
Percentage thereof. Promptly following receipt of such notice, each Revolving
Lender shall pay to the Administrative Agent its Applicable Percentage of the
payment then due from the Borrower, in the same manner as provided in Section
2.05 with respect to Loans made by such Revolving Lender (and Section 2.05 shall
apply, mutatis mutandis, to the payment obligations of the Revolving Lenders),
and the Administrative Agent shall promptly pay to the Issuing Bank the amounts
so received by it from the Revolving Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the Issuing
Bank or, to the extent that Revolving Lenders have made payments pursuant to
this paragraph to reimburse the Issuing Bank, then to such Revolving Lenders and
the Issuing Bank as their interests may appear. Any payment made by a Revolving
Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC
Disbursement (other than the funding of ABR Revolving Loans as contemplated
above) shall not constitute a Loan and shall not relieve the Borrower of its
obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. Neither
the Administrative Agent, the Lenders nor the Issuing Bank, nor any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a
29
Letter of Credit comply with the terms thereof. The parties hereto expressly
agree that, in the absence of gross negligence or wilful misconduct on the part
of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care in each
such determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented
which appear on their face to be in substantial compliance with the terms of a
Letter of Credit, the Issuing Bank may, in its sole discretion, either accept
and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Revolving Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then Section 2.12(c) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of payment by
any Revolving Lender pursuant to paragraph (e) of this Section to reimburse the
Issuing Bank shall be for the account of such Lender to the extent of such
payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be
replaced at any time by written agreement among the Borrower, the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank. The
Administrative Agent shall notify the Lenders of any such replacement of the
Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.11(b). From and after the effective date of
any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the Issuing Bank under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under
30
this Agreement with respect to Letters of Credit issued by it prior to such
replacement, but shall not be required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and
be continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Lenders with LC Exposure representing a majority
of the total LC Exposure) demanding the deposit of cash collateral pursuant to
this paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided that the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind,
upon the occurrence of any Event of Default with respect to the Borrower
described in clause (h) or (i) of Article VII. The Borrower also shall deposit
cash collateral pursuant to this paragraph as and to the extent required by
Section 2.10(b). Each such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the Obligations. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned
on the investment of such deposits, which investments shall be made at the
option and sole discretion of the Administrative Agent and at the Borrower's
risk and expense, such deposits shall not bear interest. Interest or profits, if
any, on such investments shall accumulate in such account. Moneys in such
account shall be applied by the Administrative Agent to reimburse the Issuing
Bank for LC Disbursements for which it has not been reimbursed and, to the
extent not so applied, shall be held for the satisfaction of the reimbursement
obligations of the Borrower for the LC Exposure at such time or, if the maturity
of the Loans has been accelerated (but subject to the consent of Revolving
Lenders with LC Exposure representing a majority of the total LC Exposure), be
applied to satisfy other Obligations. If the Borrower is required to provide an
amount of cash collateral hereunder as a result of the occurrence of an Event of
Default, such amount (to the extent not applied as aforesaid) shall be returned
to the Borrower within three Business Days after all Events of Default have been
cured or waived. If the Borrower is required to provide an amount of cash
collateral hereunder pursuant to Section 2.10(b), such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower as and to the extent
that, after giving effect to such return, the Borrower would remain in
compliance with Section 2.10(b) and no Default shall have occurred and be
continuing.
(k) Existing Letters of Credit. On and as of the Effective Date,
each Existing Letter of Credit shall be deemed to constitute a Letter of Credit
hereunder as though issued hereunder on the Effective Date.
SECTION 2.05 Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. The Administrative Agent will make such Loans available
to the Borrower by
31
promptly crediting the amounts so received, in like funds, to an account of the
Borrower maintained with the Administrative Agent in New York City and
designated by the Borrower in the applicable Borrowing Request; provided that
ABR Revolving Loans made to finance the reimbursement of an LC Disbursement as
provided in Section 2.04(e) shall be remitted by the Administrative Agent to the
Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from
a Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.06 Interest Elections. (a) Each Revolving Borrowing and
Tranche A Term Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different Type
or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may
elect Interest Periods therefor, all as provided in this Section. The Borrower
may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
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(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of
the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be continued as
a Eurodollar Borrowing with an Interest Period of one month. Notwithstanding any
contrary provision hereof, if an Event of Default has occurred and is continuing
and the Administrative Agent, at the request of the Required Lenders, so
notifies the Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing
and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.07 Termination and Reduction of Commitments. (a) Unless
previously terminated, (i) the Tranche A Commitments shall terminate at 5:00
p.m., New York City time, on the Effective Date and (ii) the Revolving
Commitments shall terminate on the Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Revolving Commitments; provided that (i) each reduction of the
Revolving Commitments shall be in an amount that is an integral multiple of
$1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving
33
Loans in accordance with Section 2.10, the sum of the Revolving Exposures would
exceed the total Revolving Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Revolving Commitments under paragraph (b) of
this Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Revolving Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice
to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Revolving
Commitments shall be permanent. Each reduction of the Revolving Commitments
shall be made ratably among the Lenders in accordance with their respective
Revolving Commitments.
SECTION 2.08 Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
of such Lender on the Maturity Date and (ii) to the Administrative Agent for the
account of each Term Lender the then unpaid principal amount of each Tranche A
Term Loan of such Lender as provided in Section 2.09.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be, absent manifest error, prima
facie evidence of the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the Administrative Agent to maintain
such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this
Agreement.
(e) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form
34
approved by the Administrative Agent. Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
35
SECTION 2.09 Amortization of Term Loans. (a) Subject to adjustment
pursuant to paragraph (c) of this Section, the Borrower shall repay Tranche A
Term Borrowings on each date set forth below in the aggregate principal amount
equal to the product of (i) $400,000,000 multiplied by (ii) the percentage set
forth opposite such date:
Percentage
Date of original
---- -----------
March 31, 2007............................................. 1.25%
June 30, 2007.............................................. 1.25%
September 30, 2007......................................... 1.25%
December 31, 2007.......................................... 1.25%
March 31, 2008............................................. 1.25%
June 30, 2008.............................................. 1.25%
September 30, 2008......................................... 1.25%
December 31, 2008.......................................... 1.25%
March 31, 2009............................................. 3.75%
June 30, 2009.............................................. 3.75%
September 30, 2009......................................... 3.75%
December 31, 2009.......................................... 3.75%
March 31, 2010............................................. 3.75%
June 30, 2010.............................................. 3.75%
September 30, 2010......................................... 3.75%
December 31, 2010.......................................... 3.75%
March 31, 2011............................................. 10.00%
June 30, 2011.............................................. 10.00%
September 30, 2011......................................... 10.00%
December 31, 2011.......................................... 10.00%
March 31, 2012............................................. 10.00%
Maturity Date.............................................. 10.00%
(b) To the extent not previously paid, all Tranche A Term Loans
shall be due and payable on the Maturity Date.
(c) Any prepayment of a Tranche A Term Borrowing shall be applied to
reduce the subsequent scheduled repayments of the Tranche A Term Borrowings to
be made pursuant to this Section ratably.
(d) Prior to any repayment of any Tranche A Term Borrowings
hereunder, the Borrower shall select the Borrowing or Borrowings to be repaid
and shall notify the Administrative Agent by telephone (confirmed by telecopy)
of such selection not later than 12:00 a.m., New York City time, three Business
Days before the scheduled date of such repayment. Each repayment of a Borrowing
shall be applied ratably to the Loans included in the repaid Borrowing.
Repayments of Tranche A Term Borrowings shall be accompanied by accrued interest
on the amount repaid.
36
SECTION 2.10 Prepayment of Loans. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to the requirements of this Section.
(b) In the event and on each occasion that the sum of the Revolving
Exposures exceeds the total Revolving Commitments, the Borrower shall prepay
Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash
collateral in an account with the Administrative Agent pursuant to Section
2.04(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are
received by or on behalf of the Borrower or any Subsidiary Loan Party in respect
of any Prepayment Event, the Borrower shall, immediately after such Net Proceeds
are received, prepay Tranche A Term Borrowings in accordance with paragraph (e)
below in an aggregate amount equal to such Net Proceeds; provided that, in the
case of any event described in clause (a) of the definition of the term
Prepayment Event, if the Borrower shall deliver to the Administrative Agent a
certificate of a Financial Officer to the effect that the Borrower and the
Subsidiary Loan Parties intend to apply the Net Proceeds from such event (or a
portion thereof specified in such certificate) (such Net Proceeds or portion
thereof, the "Reinvestment Amount"), within 360 days after receipt of such Net
Proceeds, to acquire real property, equipment or other tangible assets to be
used in the business of the Borrower and the Subsidiary Loan Parties, and
certifying that no Default has occurred and is continuing, then no prepayment
shall be required pursuant to this paragraph in respect of the Net Proceeds in
respect of such event (or the portion of such Net Proceeds specified in such
certificate, if applicable) except to the extent of any such Net Proceeds
therefrom that have not been so applied by the end of such 360-day period, at
which time a prepayment shall be required in an amount equal to such Net
Proceeds that have not been so applied.
(d) Prior to any optional or mandatory prepayment of Borrowings
hereunder, the Borrower shall select the Borrowing or Borrowings to be prepaid
and shall specify such selection in the notice of such prepayment pursuant to
paragraph (e) of this Section.
(e) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 12:00 a.m., New York City
time, three Business Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Borrowing, not later than 12:00 a.m., New York City time,
one Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date, the principal amount of each
Borrowing or portion thereof to be prepaid and, in the case of a mandatory
prepayment, a reasonably detailed calculation of the amount of such prepayment;
provided that, if a notice of optional prepayment is given in connection with a
conditional notice of termination of the Revolving Commitments as contemplated
by Section 2.07, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.07. Promptly following
receipt of any such notice, the Administrative Agent shall advise the Lenders of
the
37
contents thereof. Each partial prepayment of any Borrowing shall be in an amount
that would be permitted in the case of an advance of a Borrowing of the same
Type as provided in Section 2.02, except as necessary to apply fully the
required amount of a mandatory prepayment. Each prepayment of a Borrowing shall
be applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.12.
SECTION 2.11 Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee,
which shall accrue at the Applicable Rate on the average daily unused amount of
each Revolving Commitment of such Lender during the period from and including
the Effective Date to but excluding the date on which such Revolving Commitment
terminates. Commitment fees accrued through and including the last day of March,
June, September and December of each year shall be payable on the third Business
Day following such last day, commencing on the third Business Day following
September 30, 2005; provided that all such fees shall be payable on the date on
which the Revolving Commitments terminate. All commitment fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). For purposes
of computing commitment fees with respect to Revolving Commitments, a Revolving
Commitment of a Lender shall be deemed to be used to the extent of the
outstanding Revolving Loans and LC Exposure of such Lender.
(b) The Borrower agrees to pay (i) to the Administrative Agent for
the account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate used to determine the interest rate applicable to Eurodollar Revolving
Loans on the average daily amount of such Lender's LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Effective Date to but excluding the later of the date on
which such Lender's Revolving Commitment terminates and the date on which such
Revolving Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank a
fronting fee, which shall accrue at the rate of 0.25% per annum on the average
daily amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date of termination of the
Revolving Commitments and the date on which there ceases to be any LC Exposure,
as well as the Issuing Bank's standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder. Participation fees and fronting fees accrued through and
including the last day of March, June, September and December of each year shall
be payable on the third Business Day following such last day, commencing on the
third Business Day following September 30, 2005; provided that all such fees
shall be payable on the date on which the Revolving Commitments terminate and
any such fees accruing after the date on which the Revolving Commitments
terminate shall be payable on demand. Any other fees payable to the Issuing Bank
pursuant to this paragraph shall be payable within 10 days after demand. All
participation fees and fronting fees shall be computed on the basis of a year
38
of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
in writing between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders entitled thereto. Fees
due and owing hereunder and paid shall not be refundable under any
circumstances.
SECTION 2.12 Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Revolving Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Revolving Commitments; provided that (i) interest
accrued pursuant to paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Revolving
Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
39
SECTION 2.13 Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate for such Interest Period will not adequately and fairly
reflect the cost to such Lenders of making or maintaining their Loans included
in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.14 Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Lender (except any
such reserve requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank,
as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in
Law regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or the Issuing Bank's capital or on the capital
of such Lender's or the Issuing Bank's holding company, if any, as a consequence
of this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a
level below that which such Lender or the
40
Issuing Bank or such Lender's or the Issuing Bank's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
the Issuing Bank's policies and the policies of such Lender's or the Issuing
Bank's holding company with respect to capital adequacy), then from time to time
the Borrower will pay to such Lender or the Issuing Bank, as the case may be,
such additional amount or amounts as will compensate such Lender or the Issuing
Bank or such Lender's or the Issuing Bank's holding company for any such
reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or the Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank
to demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 90 days prior to the date that such Lender or the Issuing Bank, as the
case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 90-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.15 Break Funding Payments. In the event of (a) the payment
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Tranche A Term Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such
notice may be revoked under Section 2.10(e) and is revoked in accordance
therewith), or (d) the assignment of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto as a result of a request by the
Borrower pursuant to Section 2.18, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, such loss, cost or expense to any
Lender shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted LIBO
Rate that would have been applicable to such Loan, for the period from the date
of such event to the last day of the then current Interest Period therefor (or,
in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable
41
amount and period from other banks in the eurodollar market. A certificate of
any Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or on account of
any obligation of the Borrower hereunder or under any other Loan Document shall
be made free and clear of and without deduction for any Indemnified Taxes or
Other Taxes; provided that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Bank (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within 10 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may be, on or
with respect to any payment by or on account of any obligation of the Borrower
hereunder or under any other Loan Document (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered
to the Borrower by a Lender or the Issuing Bank, or by the Administrative Agent
on its own behalf or on behalf of a Lender or the Issuing Bank, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed
42
documentation prescribed by applicable law or reasonably requested by the
Borrower as will permit such payments to be made without withholding or at a
reduced rate, provided that such Foreign Lender has received written notice from
the Borrower advising it of the availability of such exemption or reduction and
supplying all applicable documentation.
(f) If the Administrative Agent or a Lender determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section 2.16, it shall pay
over such refund to the Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrower under this Section 2.16 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
reasonable out-of-pocket expenses of the Administrative Agent or such Lender and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided that the Borrower, upon the
request of the Administrative Agent or such Lender, agrees to repay the amount
paid over to the Borrower (plus any penalties, interest or other charges imposed
by the relevant Governmental Authority) to the Administrative Agent or such
Lender in the event the Administrative Agent or such Lender is required to repay
such refund to such Governmental Authority. This Section shall not be construed
to require the Administrative Agent or any Lender to make available its tax
returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.
SECTION 2.17 Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) The Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.14,
2.15 or 2.16, or otherwise) prior to the time expressly required hereunder or
under such other Loan Document for such payment (or, if no such time is
expressly required, prior to 3:00 p.m., New York City time), on the date when
due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, except payments to be made directly to the Issuing Bank as
expressly provided herein and except that payments pursuant to Sections 2.14,
2.15, 2.16 and 9.03 shall be made directly to the Persons entitled thereto and
payments pursuant to other Loan Documents shall be made to the Persons specified
therein. The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment under any Loan Document shall be due
on a day that is not a Business Day, the date for payment shall be extended to
the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
All payments under each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, unreimbursed
LC
43
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, Tranche A Term Loans or participations
in LC Disbursements resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans, Tranche A Term Loans
and participations in LC Disbursements and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans, Tranche A Term Loans and participations in LC Disbursements of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans,
Tranche A Term Loans and participations in LC Disbursements; provided that (i)
if any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount due. In such event, if the Borrower has not in
fact made such payment, then each of the Lenders or the Issuing Bank, as the
case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
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(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.04(d) or (e), 2.05(b), 2.17(d) or 9.03(c), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.14, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender.
(b) If any Lender requests compensation under Section 2.14, or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Commitment is being assigned, the Issuing Bank), which consent
shall not unreasonably be withheld and (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans and
participations in LC Disbursements, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts). A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
SECTION 2.19. Incremental Facilities. The Borrower may at any time
and from time to time prior to June 30, 2008, by notice to the Administrative
Agent (whereupon the Administrative Agent shall promptly deliver a copy to each
of the Lenders), request the addition of one or more new credit facilities (the
"Incremental Facilities") consisting of a new tranche of term loans (an
"Incremental Term Facility") or a new tranche of revolving loans (an
"Incremental Revolving Facility") or a combination thereof; provided that at the
time of any such request and upon the effectiveness of the Incremental Facility
Amendment referred to below, no Default shall exist and the Borrower shall be in
compliance with Sections 6.13, 6.14, 6.15 (if applicable) and 6.16
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determined on a pro forma basis as if such Incremental Facility had been
outstanding on the last day of the most recent fiscal quarter for testing
compliance therewith. The Incremental Facilities shall be in an aggregate
principal amount not exceeding (in the aggregate) $400,000,000, and each
Incremental Facility shall be in an aggregate principal amount not less than
$50,000,000. Each Incremental Facility (a) shall rank pari passu in right of
payment and of security with the Revolving Loans and the Tranche A Term Loans,
(b) shall not mature earlier than the Maturity Date (but may, subject to clause
(c) below, have amortization and commitment reductions prior to such date), (c)
shall have a weighted average life that is not less than that of the Revolving
Credit Commitments and the Tranche A Term Loans, taken as a whole, and (d) for
purposes of prepayments, shall be treated substantially the same as (and in any
event no more favorably than) the Tranche A Term Loans, in the case of an
Incremental Term Facility, or the Revolving Loans, in the case of an Incremental
Revolving Facility; provided that (i) the terms and conditions applicable to any
Incremental Facility maturing after the Maturity Date may provide for material
additional or different financial or other covenants applicable only during
periods after the Maturity Date and (ii) the Incremental Facilities may be
priced differently than the Tranche A Term Loans and the Revolving Loans. Any
such notice shall set forth the requested amount and terms of the relevant
Incremental Facility. The Borrower may arrange for one or more banks or other
financial institutions, each of which shall be reasonably satisfactory to the
Administrative Agent and the Borrower (any such bank or other financial
institution being called an "Additional Lender"), to extend commitments under
the Incremental Facility, and each existing Lender shall be afforded an
opportunity, but shall not be required, to provide a portion of any such
Incremental Facility. Commitments in respect of Incremental Facilities shall
become Commitments under this Agreement, and each Additional Lender shall become
a Lender under this Agreement, pursuant to an amendment (an "Incremental
Facility Amendment") to this Agreement and, as appropriate, the other Loan
Documents, executed by the Borrower, each existing Lender agreeing to provide
such Commitment, if any, each Additional Lender, if any, and the Administrative
Agent. An Incremental Facility Amendment may, without the consent of any other
Lenders, effect such amendments to this Agreement and the other Loan Documents
as may be necessary or appropriate, in the opinion of the Administrative Agent,
to effect the provisions of this Section. The effectiveness of any Incremental
Facility Amendment shall be subject to the satisfaction on the date thereof of
each of the conditions set forth in Section 4.02 (it being understood that all
references to "the date of such Borrowing" in such Section 4.02 shall be deemed
to refer to the effective date of such Incremental Facility Amendment). The
proceeds of the Incremental Facilities will be used for working capital and
other general corporate purposes, including consideration for Permitted
Acquisitions.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
SECTION 3.01 Organization; Powers. Each of the Borrower and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the
46
jurisdiction of its organization, has all requisite power and authority to carry
on its business as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transactions to be
entered into by each Loan Party are within such Loan Party's corporate powers
and have been duly authorized by all necessary corporate and, if required,
stockholder action. This Agreement has been duly executed and delivered by the
Borrower and constitutes, and each other Loan Document to which any Loan Party
is to be a party, when executed and delivered by such Loan Party, will
constitute, a legal, valid and binding obligation of the Borrower or such Loan
Party (as the case may be), enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority (including the FCC), except (i)
such as have been obtained or made and are in full force and effect and (ii)
filings necessary to perfect Liens created under the Loan Documents, (b) will
not violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of the Subsidiary Loan Parties
or any order of any Governmental Authority (including the FCC), (c) will not
violate or result in a default under any indenture, agreement or other material
instrument binding upon the Borrower or any of its Subsidiaries or any of their
respective assets, or give rise to a right thereunder to require any payment to
be made by the Borrower or any of its Subsidiaries, and (d) will not result in
the creation or imposition of any Lien on any asset of the Borrower or any of
the Subsidiary Loan Parties, except Liens created under the Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a)
The Borrower has heretofore furnished to the Lenders its consolidated balance
sheet and statements of income, stockholders equity and cash flows (i) as of and
for the fiscal year ended December 31, 2004, reported on by KPMG, independent
public accountants and (ii) as of and for the portion of the fiscal year ended
March 31, 2005, certified by its chief financial officer. Such financial
statements present fairly, in all material respects, the financial position and
results of operations and cash flows of the Borrower and its consolidated
Subsidiaries as of such date and for such period in accordance with GAAP,
subject to year-end audit adjustments and the absence of footnotes in the case
of statements referred to in clause (ii) above.
(b) Except as disclosed in the financial statements referred to
above or the notes thereto or in the Information Memorandum and except for the
Disclosed Matters, none of the Borrower or its Subsidiaries has, as of the
Effective Date, any material contingent liabilities, unusual long-term
commitments or material unrealized losses.
47
(c) Since December 31, 2004, there has been no material adverse
change in the business, assets, operations or condition, financial or otherwise,
of the Borrower and its Subsidiaries, taken as a whole.
SECTION 3.05. Properties and Licenses. (a) Each of the Borrower and
the Subsidiary Loan Parties has good title to, or valid leasehold interests in,
all its real and personal property material to its business (including its
Mortgaged Properties), except for minor defects in title that do not interfere
with its ability to conduct, in all material respects, its business as currently
conducted or to utilize, in all material respects, such properties for their
intended purposes.
(b) Each of the Borrower and the Subsidiary Loan Parties owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Borrower and the Subsidiary Loan Parties does not infringe upon the rights of
any other Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(c) Schedule 3.05(c) sets forth the address of each real property
that is owned or leased by the Borrower or any of the Subsidiary Loan Parties as
of the Effective Date.
(d) Schedule 3.05(d) sets forth all FCC Licenses existing as of the
Effective Date (and the respective holders of such FCC Licenses) and all other
licenses and permits in effect as of the Effective Date that are material to the
business of the Borrower and the Subsidiary Loan Parties. Each of the FCC
Licenses, and each other license or permit that is material to the business of
the Borrower and the Subsidiary Loan Parties, is valid and in full force and
effect, and the Borrower and the Subsidiary Loan Parties are in compliance in
all material respects with the terms and conditions thereof. The Borrower has
the right to utilize all FCC Licenses held by the License Subsidiaries.
SECTION 3.06. Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority (including the FCC) pending against or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect (other
than the Disclosed Matters) or (ii) that involve any of the Loan Documents or
the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Borrower nor any of
its Subsidiaries (or, in the case of clauses (iii) and (iv) below, no director,
executive, financial, legal or other officer (including Financial Officer) or
general counsel of the Borrower or any of its Subsidiaries) (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental
48
Law, (ii) has become subject to any Environmental Liability, (iii) has received
notice of any claim with respect to any Environmental Liability or (iv) knows of
any basis for any Environmental Liability.
(c) Since the Effective Date, there has been no change in the status
of the Disclosed Matters that, individually or in the aggregate, has resulted
in, or materially increased the likelihood of, a Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of the
Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority (including the FCC) applicable to it or its
property and all indentures, agreements and other instruments binding upon it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither the
Borrower nor any of the Subsidiary Loan Parties is (a) an "investment company"
as defined in, or subject to regulation under, the Investment Company Act of
1940 or (b) a "holding company" as defined in, or subject to regulation under,
the Public Utility Holding Company Act of 1935.
SECTION 3.09. Tax Matters. Each of the Borrower and its Subsidiaries
has timely filed or caused to be filed all Tax returns and reports required to
have been filed and has paid or caused to be paid all Taxes required to have
been paid by it, except (i) any Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (ii) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed the fair
market value of the assets of such Plan by a material amount, and the present
value of all accumulated benefit obligations of all underfunded Plans (based on
the assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed the fair market value of the assets of all such
underfunded Plans by a material amount.
SECTION 3.11. Disclosure. The Borrower has disclosed to the Lenders
all agreements, instruments and corporate or other restrictions to which it or
any of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. Neither
49
the Information Memorandum nor any of the other reports, financial statements,
certificates or other information furnished by or on behalf of any Loan Party to
the Administrative Agent or any Lender in connection with the negotiation of
this Agreement or any other Loan Document or delivered hereunder or thereunder
(as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
SECTION 3.12. Subsidiaries. Schedule 3.12 sets forth the name of,
and the ownership interest of the Borrower in, each Subsidiary of the Borrower
and identifies each Subsidiary that is a Subsidiary Loan Party, in each case as
of the Effective Date.
SECTION 3.13. Insurance. Schedule 3.13 sets forth a description of
all insurance maintained by or on behalf of the Borrower and the Subsidiary Loan
Parties as of the Effective Date. As of the Effective Date, all premiums in
respect of such insurance have been paid. The Borrower believes that the
insurance maintained by or on behalf of the Borrower and the Subsidiary Loan
Parties is adequate.
SECTION 3.14. Labor Matters. As of the Effective Date, there are no
strikes, lockouts or slowdowns against the Borrower or any Subsidiary pending
or, to the knowledge of the Borrower, threatened that could reasonably be
expected to result in a Material Adverse Effect. The hours worked by and
payments made to employees of the Borrower and its Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Federal,
state, local or foreign law dealing with such matters. All payments due from the
Borrower or any Subsidiary, or for which any claim may be made against the
Borrower or any Subsidiary, on account of wages and employee health and welfare
insurance and other benefits, have been paid or accrued as a liability on the
books of the Borrower or such Subsidiary. The consummation of the Transactions
will not give rise to any right of termination or right of renegotiation on the
part of any union under any collective bargaining agreement to which the
Borrower or any Subsidiary is bound.
SECTION 3.15. Solvency. Immediately following the making of each
Loan made on the Effective Date and after giving effect to the application of
the proceeds of such Loans, (a) the fair value of the assets of the Loan Parties
(taken as a whole), at a fair valuation, will exceed the debts and liabilities
of the Loan Parties (taken as a whole), subordinated, contingent or otherwise;
(b) the present fair saleable value of the property of the Loan Parties (taken
as a whole) will be greater than the amount that will be required to pay the
probable liability of the debts and other liabilities of the Loan Parties (taken
as a whole), subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (c) the Loan Parties (taken as a whole)
will be able to pay the debts and liabilities of the Loan Parties (taken as a
whole), subordinated, contingent or otherwise, as such debts and liabilities
become absolute and matured; and (d) the Loan Parties (taken as a whole) will
not have unreasonably small capital with
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which to conduct the business in which the Loan Parties are engaged as such
business is now conducted and is proposed to be conducted following the
Effective Date.
SECTION 3.16. Security Interests. The representations and warranties
in the Security Documents are true and correct in all material respects.
SECTION 3.17. Specially Designated Nationals or Blocked Persons.
None of the Borrower, Subsidiaries or Affiliates of the Borrower are named on
the United States Department of the Treasury's Specially Designated Nationals or
Blocked Persons list available through
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxx/xxxx/xxx/xxxxx.xxxx or as otherwise
published from time to time.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to make
Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature page of
this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of each of (i) Xxxxx Day, counsel for the Borrower,
substantially in the form of Exhibit B-1 and (ii) Xxxxxxx & Xxxxxxx, Chtd.,
Nevada local counsel for the Borrower, substantially in the form of Exhibit B-2,
and, in the case of each such opinion required by this paragraph, covering such
other matters relating to the Loan Parties, the Loan Documents or the
Transactions as the Required Lenders shall reasonably request. The Borrower
hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of each Loan Party,
the authorization of the Transactions and any other legal matters relating to
the Loan Parties, the Loan Documents or the Transactions, all in form and
substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming compliance with the conditions set
forth in paragraphs (a) and (b) of Section 4.02.
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(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to the
extent invoiced, reimbursement or payment of all reasonable out-of-pocket
expenses (including fees, charges and disbursements of counsel) required to be
reimbursed or paid by any Loan Party hereunder or under any other Loan Document.
(f) The Collateral and Guarantee Requirement shall have been
satisfied and the Administrative Agent shall have received a completed
Perfection Certificate dated the Effective Date and signed by an executive
officer or Financial Officer of the Borrower, together with all attachments
contemplated thereby, including the results of a search of the Uniform
Commercial Code (or equivalent) filings made with respect to the Loan Parties in
the jurisdictions contemplated by the Perfection Certificate and copies of the
financing statements (or similar documents) disclosed by such search and
evidence reasonably satisfactory to the Administrative Agent that the Liens
indicated by such financing statements (or similar documents) are permitted by
Section 6.02 or have been released.
(g) The Administrative Agent shall have received evidence that the
insurance required by Section 5.07 and the Security Documents is in effect.
(h) All consents and approvals required to be obtained from any
Governmental Authority or other Person in connection with the Transactions shall
have been obtained without the imposition of any material burdensome conditions.
(i) After giving effect to the Transactions and the other
transactions contemplated hereby, the Borrower and the Subsidiary Loan Parties
shall have outstanding no Indebtedness or preferred Equity Interests other than
(i) Indebtedness incurred under this Agreement and (ii) Indebtedness set forth
on Schedule 6.01.
(j) Concurrently with the initial funding of the Loans on the
Effective Date, (i) the Borrower shall terminate all commitments under the
Existing Credit Agreement and repay all loans and other amounts accrued or owing
thereunder and (ii) all security interests and other Liens securing obligations
thereunder (and any other obligations secured thereby) shall be terminated and
released.
(k) The Lenders shall have received all documentation and other
information required by regulatory authorities under applicable "know your
customer" and anti-money laundering rules and regulations, including the Patriot
Act.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of the Issuing
Bank to issue Letters of Credit hereunder shall not become effective unless each
of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at
or prior to 5:00 p.m., New York City time, on [-], 2005 (and, in the event such
conditions are not so satisfied or waived, the Commitments shall terminate at
such time).
52
SECTION 4.02. Each Credit Event. The obligation of each Lender to
make a Loan on the occasion of any Borrowing, and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to receipt of the
request therefor in accordance herewith and to the satisfaction of the following
conditions:
(a) The representations and warranties of each Loan Party set forth
in the Loan Documents shall be true and correct in all material respects on and
as of the date of such Borrowing or the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing (excluding any Borrowing consisting solely of a continuation or
conversion of an outstanding Borrowing) and each issuance, amendment, renewal or
extension of a Letter of Credit shall be deemed to constitute a representation
and warranty by the Borrower on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) promptly when available and in any event within 90 days after
the end of each fiscal year of the Borrower, its audited consolidated balance
sheet and related statements of operations, stockholders' equity and cash flows
as of the end of and for such year, setting forth in each case in comparative
form the figures for the previous fiscal year, all reported on by KPMG or other
independent public accountants of recognized national standing (without a "going
concern" or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the financial
condition and results of operations of the Borrower and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied;
(b) promptly when available and in any event within 45 days after
the end of each of the first three fiscal quarters of each fiscal year of the
Borrower, its consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows as of the end of and for such fiscal quarter
and the then elapsed portion of the fiscal year, setting forth in each case in
comparative form the figures for the
53
corresponding period or periods of (or, in the case of the balance sheet, as of
the end of) the previous fiscal year, all certified by one of its Financial
Officers as presenting fairly in all material respects the financial condition
and results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the Borrower
(i) certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or proposed to be
taken with respect thereto, (ii) setting forth reasonably detailed calculations
of the Total Leverage Ratio as of the last day of the fiscal period covered by
such financial statements and demonstrating compliance with Sections 6.13, 6.14,
6.15 (if applicable) and 6.16 and (iii) stating whether any change in GAAP or in
the application thereof has occurred since the date of the Borrower's audited
financial statements referred to in Section 3.04 and, if any such change has
occurred, specifying the effect of such change on the financial statements
accompanying such certificate;
(d) within 45 days after the commencement of each fiscal year of the
Borrower, a detailed consolidated budget for such fiscal year (including a
projected consolidated balance sheet and related statements of projected
operations and cash flow as of the end of and for such fiscal year and setting
forth the assumptions used for purposes of preparing such budget) and, promptly
when available, any significant revisions of such budget;
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by the
Borrower or any Subsidiary with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the
Borrower to its shareholders generally, as the case may be; and
(f) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of any Loan Document,
as the Administrative Agent or any Lender may reasonably request.
SECTION 5.02. Notices of Material Events. The Borrower will furnish
to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof or any FCC License that, if adversely
determined, could reasonably be expected to result in a Material Adverse Effect;
54
(c) the occurrence of any ERISA Event; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Information Regarding Collateral. (a) The Borrower
will furnish to the Administrative Agent prompt written notice of any change (i)
in any Loan Party's corporate name, (ii) in the location of any Loan Party's
chief executive office, its principal place of business, any office in which it
maintains books or records relating to Collateral owned by it or any office or
facility at which Collateral owned by it is located (including the establishment
of any such new office or facility), (iii) in any Loan Party's identity or type
of organization or corporate structure, (iv) in any Loan Party's Federal
Taxpayer Identification Number or other organizational identification number or
(v) in any Loan Party's jurisdiction of organization. The Borrower agrees not to
effect or permit any change referred to in the preceding sentence unless all
filings have been made under the Uniform Commercial Code or otherwise that are
required in order for the Administrative Agent to continue at all times
following such change to have a valid, legal and perfected security interest in
all the Collateral. The Borrower also agrees promptly to notify the
Administrative Agent if any material portion of the Collateral is damaged or
destroyed.
(b) Each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to clause (a) of
Section 5.01, the Borrower shall deliver to the Administrative Agent a
certificate executed by a Financial Officer and the chief legal officer of the
Borrower (i) setting forth the information required pursuant to the Perfection
Certificate or confirming that there has been no change in such information
since the date of the Perfection Certificate delivered on the Restatement
Effective Date or the date of the most recent certificate delivered pursuant to
this Section and (ii) certifying that the Borrower has delivered to the
Administrative Agent all Uniform Commercial Code financing statements (including
fixture filings, as applicable) or other appropriate filings, recordings or
registrations, including all refilings, rerecordings and reregistrations,
containing a description of the Collateral for filing of record in each
governmental, municipal or other appropriate office in each jurisdiction
identified pursuant to clause (i) above to the extent necessary to protect and
perfect the security interests under the Collateral Agreement for a period of
not less than 18 months after the date of such certificate (except as noted
therein with respect to any continuation statements to be filed within such
period).
SECTION 5.04. Existence; Conduct of Business. The Borrower will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and trade names
55
material to the conduct of its business; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 6.03.
SECTION 5.05. Payment of Obligations. The Borrower will, and will
cause each of its Subsidiaries to, pay its Indebtedness and other obligations,
including Tax liabilities, before the same shall become delinquent or in
default, except where (a) the validity or amount thereof is being contested in
good faith by appropriate proceedings, (b) the Borrower or such Subsidiary has
set aside on its books adequate reserves with respect thereto in accordance with
GAAP, (c) such contest effectively suspends collection of the contested
obligation and the enforcement of any Lien securing such obligation and (d) the
failure to make payment pending such contest could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 5.06. Maintenance of Properties. The Borrower will, and will
cause each of the Subsidiary Loan Parties to, keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted.
SECTION 5.07. Insurance. The Borrower will, and will cause each of
the Subsidiary Loan Parties to, maintain, with financially sound and reputable
insurance companies, (a) insurance in such amounts (with no greater risk
retention) and against such risks as are customarily maintained by companies of
established repute engaged in the same or similar businesses operating in the
same or similar locations and (b) all insurance required to be maintained
pursuant to the Security Documents. The Borrower will furnish to the Lenders,
upon request of the Administrative Agent, information in reasonable detail as to
the insurance so maintained.
SECTION 5.08. Casualty and Condemnation. The Borrower (a) will
furnish to the Administrative Agent and the Lenders prompt written notice of any
casualty or other insured damage to any material portion of any Collateral or
the commencement of any action or proceeding for the taking of any material
portion of the Collateral or any part thereof or interest therein under power of
eminent domain or by condemnation or similar proceeding and (b) will ensure that
the Net Proceeds of any such event (whether in the form of insurance proceeds,
condemnation awards or otherwise) are collected and applied in accordance with
the applicable provisions of the Security Documents.
SECTION 5.09. Books and Records; Inspection Rights. The Borrower
will, and will cause each of its Subsidiaries to, keep proper books of record
and account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested (it being hereby understood and agreed that, unless a
Default has
56
occurred and is continuing, any such visit, inspection or examination shall be
at the sole expense of the Administrative Agent or such Lender, as applicable).
SECTION 5.10. Compliance with Laws. The Borrower will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority (including the FCC) applicable to it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.11. Use of Proceeds and Letters of Credit. The proceeds of
the Tranche A Term Loans and Revolving Loans will be used for (a) payment of
amounts owing under the Existing Credit Agreement, (b) the payment of amounts
payable as consideration for Permitted Acquisitions, (c) any fees or expenses
incurred by the Borrower and the Subsidiary Loan Parties in connection with such
Permitted Acquisitions and (d) working capital and other general corporate
purposes, including Capital Expenditures. No part of the proceeds of any Loan
will be used, whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Board, including Regulations T, U and
X. Letters of Credit will be issued only to support obligations of the Borrower
and the Subsidiary Loan Parties in the ordinary course of business.
SECTION 5.12. Additional Subsidiaries. If any additional Subsidiary
is formed or acquired after the Effective Date, the Borrower will, within 30
days after such Subsidiary is formed or acquired, notify the Administrative
Agent thereof and cause the Collateral and Guarantee Requirement to be satisfied
with respect to such Subsidiary (if it is a Subsidiary Loan Party) and with
respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or
on behalf of any Loan Party.
SECTION 5.13. Further Assurances. (a) The Borrower will, and will
cause each Subsidiary Loan Party to, execute any and all further documents,
financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture
filings, mortgages, deeds of trust and other documents), which may be required
under any applicable law, or which the Administrative Agent or the Required
Lenders may reasonably request, to cause the Collateral and Guarantee
Requirement to be and remain satisfied, all at the expense of the Loan Parties.
The Borrower also agrees to provide to the Administrative Agent, from time to
time upon request, evidence reasonably satisfactory to the Administrative Agent
as to the perfection and priority of the Liens created or intended to be created
by the Security Documents.
(b) If any material assets (including any real property or
improvements thereto or any interest therein) are acquired by the Borrower or
any Subsidiary Loan Party after the Effective Date (other than (i) assets
constituting Collateral under the Collateral Agreement that become subject to
the Lien of the Collateral Agreement upon acquisition thereof and (ii) Excluded
Borrower Stock), the Borrower will notify the Administrative Agent and the
Lenders thereof, and, if reasonably requested by the Administrative Agent or the
Required Lenders (or, in the case of any real property or
57
improvements thereto or any interest therein, if agreed to by the Administrative
Agent and the Borrower), the Borrower will cause such assets to be subjected to
a Lien securing the Obligations and will take, and cause the Subsidiary Loan
Parties to take, such actions as shall be necessary or reasonably requested by
the Administrative Agent to grant and perfect such Liens, including actions
described in paragraph (a) of this Section, all at the expense of the Loan
Parties.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable hereunder have been paid in
full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees with
the Lenders that:
SECTION 6.01. Indebtedness; Certain Equity Securities. (a) The
Borrower will not, and will not permit any Subsidiary Loan Party to, create,
incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents (including
Indebtedness under any Incremental Facilities incurred in compliance
with Section 2.19);
(ii) Indebtedness existing on the Effective Date and set forth
in Schedule 6.01 and extensions, renewals, replacements or
refinancings of any such Indebtedness that do not increase the
outstanding principal amount thereof or result in an earlier
maturity date or decreased weighted average life thereof; provided
that the terms of any extension, renewal, replacement or refinancing
shall be satisfactory to the Administrative Agent;
(iii) Indebtedness of the Borrower to any Subsidiary Loan
Party and of any Subsidiary Loan Party to the Borrower or any other
Subsidiary Loan Party;
(iv) Guarantees by the Borrower of Indebtedness of any
Subsidiary and by any Subsidiary Loan Party of Indebtedness of the
Borrower or any other Subsidiary; provided that Guarantees by the
Borrower or any Subsidiary Loan Party of Indebtedness of any
Excluded Subsidiary shall be subject to Section 6.04;
(v) Indebtedness of the Borrower or any Subsidiary Loan Party
incurred to finance the acquisition, construction or improvement by
it of any fixed or capital assets, including Capital Lease
Obligations and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such
assets prior to the acquisition thereof, and extensions, renewals
and replacements of any such
58
Indebtedness that do not increase the outstanding principal amount
thereof or result in an earlier maturity date or decreased weighted
average life thereof; provided that (A) such Indebtedness is
incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement and (B) the aggregate
principal amount of Indebtedness permitted by this clause (v) shall
not exceed $25,000,000 at any time outstanding;
(vi) Indebtedness of any Person that becomes a Subsidiary Loan
Party after the Effective Date; provided that (A) such Indebtedness
exists at the time such Person becomes a Subsidiary and is not
created in contemplation of or in connection with such Person
becoming a Subsidiary and (B) the aggregate principal amount of
Indebtedness permitted by this clause (vi) shall not exceed
$15,000,000 at any time outstanding;
(vii) Permitted Debt; and
(viii) other unsecured Indebtedness of the Borrower and the
Subsidiary Loan Parties in an aggregate principal amount not
exceeding $25,000,000 at any time outstanding.
(b) The Borrower will not, nor will it permit any Subsidiary Loan
Party to, issue any preferred Equity Interests, except that the Borrower may
issue any preferred Equity Interest that does not constitute a Disqualified
Equity Interest.
SECTION 6.02. Liens. The Borrower will not, and will not permit any
Subsidiary Loan Party to, create, incur, assume or permit to exist any Lien on
any property or asset now owned or hereafter acquired by it (other than Excluded
Borrower Stock), or assign or sell any income or revenues (including accounts
receivable) or rights in respect of any thereof, except:
(a) Liens created under the Loan Documents;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of the Borrower or any
Subsidiary Loan Party existing on the Effective Date and set forth in Schedule
6.02; provided that (i) such Lien shall not apply to any other property or asset
of the Borrower or any Subsidiary Loan Party and (ii) such Lien shall secure
only those obligations which it secures on the Effective Date and extensions,
renewals and replacements thereof that do not increase the outstanding principal
amount thereof;
(d) any Lien existing on any property or asset acquired after the
Effective Date prior to the acquisition thereof by the Borrower or any
Subsidiary Loan Party or existing on any property or asset of any Person that
becomes a Subsidiary after the Effective Date prior to the time such Person
becomes a Subsidiary; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition or such
59
Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply
to any other property or assets of the Borrower or any Subsidiary Loan Party and
(iii) such Lien shall secure only those obligations which it secures on the date
of such acquisition or the date such Person becomes a Subsidiary, as the case
may be, and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof or result in earlier maturity date or
decreased weighted average life thereof; and
(e) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; provided that (i) such security
interests secure Indebtedness permitted by clause (v) of Section 6.01(a), (ii)
such security interests and the Indebtedness secured thereby are incurred prior
to or within 90 days after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness secured thereby does not
exceed the cost of acquiring, constructing or improving such fixed or capital
assets and (iv) such security interests shall not apply to any other property or
assets of the Borrower or any Subsidiary Loan Party.
SECTION 6.03. Fundamental Changes. (a) The Borrower will not, and
will not permit any Subsidiary Loan Party to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
or liquidate or dissolve, except that, if at the time thereof and immediately
after giving effect thereto no Default shall have occurred and be continuing,
(i) any Subsidiary may merge into the Borrower in a transaction in which the
Borrower is the surviving corporation, (ii) the Borrower may merge into a wholly
owned Subsidiary of the Borrower for the sole purpose of effecting a change in
the jurisdiction of organization of the Borrower, provided that (A) such
Subsidiary is not a Foreign Subsidiary, (B) such Subsidiary is a corporation
organized for the sole purpose of effecting a change in the jurisdiction of
organization of the Borrower and, prior to the consummation of such merger, owns
no Equity Interests in any entity, (C) after giving effect to such merger, such
Subsidiary shall be the surviving entity and, for purposes of this Agreement and
the other Loan Documents, shall be deemed to be the "Borrower" and shall succeed
to the rights and obligations of the Borrower under this Agreement and the other
Loan Documents, and such Subsidiary shall enter into an instrument in form and
substance reasonably satisfactory to the Administrative Agent stating that it
has become the "Borrower" and has succeeded to the rights and obligations of the
Borrower under this Agreement and the other Loan Documents, (D) immediately
after giving effect to such merger, each Person that was a shareholder of the
Borrower prior to the consummation of such merger shall become a shareholder of
such Subsidiary, and each such Person shall own Equity Interests in the
reorganized Borrower having an aggregate voting power equal to those Equity
Interests in the Borrower held by such Person prior to such merger, (E) the
Administrative Agent shall have received notice of such merger 30 days prior to
the consummation of such merger, (F) prior to the consummation of such merger,
the Borrower shall have taken all actions necessary pursuant to Section 5.13 to
cause the Collateral and Guarantee Requirement to be and remain satisfied after
giving effect to the merger and (G) the Borrower and such Subsidiary shall
deliver all legal opinions relating to the matters set forth in the preceding
clauses (A) through (F) as may be reasonably requested by the Administrative
Agent, (iii) any Subsidiary Loan Party may merge into any Subsidiary Loan Party
in a transaction in which the surviving entity is a Subsidiary
60
Loan Party, (iv) the Borrower may permit another Person to merge into it in
order to effect a Permitted Acquisition in which the Borrower is the surviving
entity, (v) a Subsidiary Loan Party may merge into another Person, or may permit
another Person to merge into it, in order to effect a Permitted Acquisition in
which the surviving entity is a Subsidiary Loan Party and (vi) any Subsidiary
Loan Party (other than a License Subsidiary) may liquidate or dissolve if the
Borrower determines in good faith that such liquidation or dissolution is in the
best interests of the Borrower and is not materially disadvantageous to the
Lenders; provided that any such merger involving a Person that is not a wholly
owned Subsidiary immediately prior to such merger shall not be permitted unless
also permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of the Subsidiary
Loan Parties to, engage to any material extent in any business other than
businesses of the type conducted by the Borrower and the Subsidiary Loan Parties
on the Effective Date and businesses reasonably related thereto.
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions. The Borrower will not, and will not permit any of the Subsidiary
Loan Parties to, purchase, hold or acquire (including pursuant to any merger
with any Person that was not a wholly owned Subsidiary prior to such merger) any
Equity Interests in or evidences of indebtedness or other securities (including
any option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any investment or any other interest in, any other Person, or
purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments existing on the Effective Date and set forth on
Schedule 6.04;
(c) investments by the Borrower and the Subsidiary Loan Parties in
Equity Interests in their respective Subsidiaries; provided that (i) any such
Equity Interests held by a Loan Party shall be pledged pursuant to the
Collateral Agreement (subject to the limitations applicable to common stock of a
Foreign Subsidiary referred to in the definition of "Collateral and Guarantee
Requirement") and (ii) the aggregate amount of investments by the Loan Parties
in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of
Indebtedness of, Excluded Subsidiaries (including all such investments, loans,
advances and Guarantees existing or made on the Effective Date) shall not exceed
$15,000,000 at any time outstanding;
(d) loans or advances made by the Borrower to any Subsidiary and
made by any Subsidiary Loan Party to the Borrower or any other Subsidiary;
provided that (i) any such loans and advances made by a Loan Party shall be
evidenced by a promissory note and shall be pledged pursuant to the Collateral
Agreement and (ii) the amount of such loans and advances made by the Loan
Parties to Excluded Subsidiaries shall be subject to the limitation set forth in
clause (c) above;
61
(e) Guarantees constituting Indebtedness permitted by Section 6.01;
provided that (i) a Subsidiary shall not Guarantee any Indebtedness of the
Borrower unless (A) such Subsidiary also has Guaranteed the Obligations pursuant
to the Collateral Agreement, (B) if such Indebtedness is subordinated to the
Obligations, then such Guarantee of such Indebtedness also shall be subordinate
to such Guarantee of the Obligations on terms no less favorable to the Lenders
than the subordination provisions of such Indebtedness and (C) such Guarantee of
such Indebtedness provides for the release and termination thereof, without
action by any party, upon any release and termination of such Guarantee of the
Obligations, and (ii) the aggregate principal amount of Indebtedness of Excluded
Subsidiaries that is Guaranteed by any Loan Party shall be subject to the
limitation set forth in clause (c) above;
(f) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(g) Permitted Acquisitions; provided that the consideration for each
Permitted Acquisition shall consist solely of cash, Equity Interests of the
Borrower, the assumption of Indebtedness of the acquired Person or encumbering
the acquired assets or Indebtedness referred to in clause (vi) of Section
6.01(a) or a combination thereof (and, if such Permitted Acquisition is or
includes an Asset Swap Transaction, a Broadcasting Asset or all the Equity
Interests in a Subsidiary owning a Broadcasting Asset);
(h) Hedging Agreements permitted under Section 6.07;
(i) loans and advances to employees of any Loan Party in the
ordinary course of business (including for travel, entertainment and relocation
expenses) in an aggregate amount for all such Loan Parties not to exceed
$10,000,000 at any time outstanding;
(j) shares of common stock of the Borrower held as treasury stock
after the purchase thereof by the Borrower in compliance with Section 6.08; (k)
investments consisting of non-cash consideration received in connection with any
sale, transfer or disposition of assets permitted by paragraph (f) of Section
6.05; and
(l) other investments in an aggregate amount not exceeding (i)
$200,000,000 plus (ii) the amount (not exceeding $150,000,000 in the aggregate)
of cash consideration received by the Loan Parties in respect of sales of asset
pursuant to clause (f) of Section 6.05.
SECTION 6.05. Asset Sales. The Borrower will not, and will not
permit any of the Subsidiary Loan Parties to, sell, transfer, lease or otherwise
dispose of any asset, including any Equity Interest owned by it, nor will the
Borrower permit any of the Subsidiary Loan Parties to issue any additional
Equity Interest in such Subsidiary, except:
62
(a) sales of inventory, used or surplus equipment and Permitted
Investments in the ordinary course of business;
(b) sales, transfers and dispositions to the Borrower or a
Subsidiary; provided that any such sales, transfers or dispositions to an
Excluded Subsidiary shall be made in compliance with Section 6.09;
(c) sales, transfers and other dispositions of assets (other than
Equity Interests in a Subsidiary Loan Party) that are not permitted by any other
clause of this Section; provided that the aggregate fair market value of all
assets sold, transferred or otherwise disposed of in reliance upon this clause
(c) shall not exceed (i) $20,000,000 during the fiscal year of the Borrower
ending on December 31, 2005, (ii) $25,000,000 during any fiscal year of the
Borrower ending thereafter and (iii) $100,000,000 in the aggregate on a
cumulative basis from the Effective Date;
(d) sales of fixed or capital assets pursuant to sale and lease-back
transactions, to the extent expressly permitted by Section 6.06;
(e) any Asset Swap Transaction; provided that to the extent that any
consideration (other than a Broadcasting Asset or all the Equity Interests in a
Person or group of affiliated Persons owning a Broadcasting Asset) is received
by any Loan Party in connection with such transaction, such transaction shall be
treated as a sale of the relevant assets that must comply with clause (c) above;
and
(f) the sale, transfer or disposition of any assets comprising a
radio station and associated assets identified on Schedule 6.05;
provided that all sales, transfers, leases and other dispositions permitted
hereby (other than those permitted by clause (b) above) shall be made for fair
value and (other than those permitted by clause (b), (e) and (f) above) solely
for cash consideration.
SECTION 6.06. Sale and Leaseback Transactions. The Borrower will
not, and will not permit any of the Subsidiary Loan Parties to, enter into any
arrangement, directly or indirectly, whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereinafter acquired, and thereafter rent or lease such property or other
property that it intends to use for substantially the same purpose or purposes
as the property sold or transferred, except for any such sale of any fixed or
capital assets (other than assets acquired pursuant to the Acquisitions or any
other Permitted Acquisition) that is made for cash consideration in an amount
not less than the cost of such fixed or capital asset and is consummated within
90 days after the Borrower or such Subsidiary Loan Party acquires or completes
the construction of such fixed or capital asset.
SECTION 6.07. Hedging Agreements. The Borrower will not, and will
not permit any of the Subsidiary Loan Parties to, enter into any Hedging
Agreement, other than (a) Hedging Agreements entered into in the ordinary course
of business to hedge or mitigate risks to which the Borrower or any Subsidiary
Loan Party is exposed in the conduct of its business or the management of its
liabilities and (b) Hedging
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Agreements entered into in order to effectively exchange interest rates (from
fixed to floating rates or otherwise) with respect to any interest-bearing
liability or investment of the Borrower or any Subsidiary Loan Party.
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness.
(a) The Borrower will not, and will not permit any of the Subsidiary Loan
Parties to, declare or make, or agree to pay or make, directly or indirectly,
any Restricted Payment, or incur any obligation (contingent or otherwise) to do
so, except, to the extent that no Default has occurred and is continuing or
would result therefrom:
(i) the Borrower may declare and pay dividends with respect to
its Equity Interests payable solely in additional Equity Interests
of the same class;
(ii) Subsidiary Loan Parties may declare and pay dividends
ratably with respect to their Equity Interests;
(iii) the Borrower may make Restricted Payments, not exceeding
$500,000 during any fiscal year, pursuant to and in accordance with
stock option plans or other benefit plans for management or
employees of the Borrower and its Subsidiaries; and
(iv) the Borrower may declare and pay cash dividends and make
Restricted Payments in cash for the purpose of purchasing or
redeeming shares of the Borrower's common stock; provided that the
aggregate amount of Restricted Payments made in reliance upon this
clause (iv) on a cumulative basis during the term of this Agreement
shall not exceed $150,000,000; provided further that the Borrower
may make additional Restricted Payments in reliance upon this clause
(iv) if at the time of and after giving effect to any such
Restricted Payment and any Indebtedness incurred to finance such
Restricted Payment the Total Leverage Ratio is less than 4.5 to 1.0.
(b) The Borrower will not, nor will it permit any Subsidiary Loan
Party to, make or agree to pay or make, directly or indirectly, any payment or
other distribution (whether in cash, securities or other property) of or in
respect of principal of or interest on any Indebtedness, or any payment or other
distribution (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancelation or termination of any Indebtedness, except:
(i) payment or prepayment of Indebtedness created under the
Loan Documents;
(ii) payment of regularly scheduled interest and principal
payments as and when due in respect of any Indebtedness permitted by
Section 6.01;
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(iii) refinancings of Indebtedness to the extent permitted by
Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets
securing such Indebtedness; and
(v) payments, in an aggregate amount not to exceed the sum of
the Net Proceeds received by the Borrower in respect of the issuance
by the Borrower of Equity Interests after the Effective Date, to the
extent not otherwise used for Permitted Acquisitions, for the
purpose of purchasing, redeeming or retiring Permitted Debt (it
being understood and agreed that any Permitted Debt purchased
pursuant to this clause (v) shall immediately be canceled by the
Borrower).
SECTION 6.09. Transactions with Affiliates. The Borrower will not,
and will not permit any of the Subsidiary Loan Parties to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) transactions in the
ordinary course of business at prices and on terms and conditions not less
favorable to the Borrower or such Subsidiary Loan Party than could be obtained
on an arm's-length basis from unrelated third parties, (b) transactions between
or among the Borrower and Subsidiary Loan Parties not involving any other
Affiliate and (c) any Restricted Payment permitted by Section 6.08(a).
SECTION 6.10. Restrictive Agreements. The Borrower will not, and
will not permit any of the Subsidiary Loan Parties to, directly or indirectly,
enter into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of the
Borrower or any Subsidiary Loan Party to create, incur or permit to exist any
Lien upon any of its property or assets, or (b) the ability of any Subsidiary
Loan Party to pay dividends or other distributions with respect to any of its
Equity Interests or to make or repay loans or advances to the Borrower or any
other Subsidiary Loan Party or to Guarantee Indebtedness of the Borrower or any
other Subsidiary Loan Party; provided that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or by any Loan Document, (ii) the
foregoing shall not apply to restrictions and conditions existing on the
Effective Date identified on Schedule 6.10 (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any such
restriction or condition), (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder,
(iv) clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness and (v) clause (a) of the foregoing shall not
apply to customary provisions in leases and other contracts restricting the
assignment thereof.
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SECTION 6.11. FCC Licenses and License Subsidiaries. The Borrower
will not permit any FCC License to be owned or acquired by any Person other than
a corporation organized under the laws of a jurisdiction in the United States
that (a) is a Subsidiary Loan Party and is wholly owned directly by a Loan
Party, (b) does not engage in any business or activity other than the ownership
of one or more FCC Licenses and activities incidental thereto, (c) does not own
or acquire any assets other than one or more FCC Licenses, cash and Permitted
Investments and (d) does not have or incur any Indebtedness or other liabilities
other than liabilities under the Loan Documents, liabilities imposed by law,
including tax liabilities, and other liabilities incidental to its existence and
permitted business and activities (any corporation satisfying the foregoing
requirements, a "License Subsidiary").
SECTION 6.12. Amendment of Material Documents. The Borrower will
not, nor will it permit any Subsidiary Loan Party to, amend, modify or waive any
of its rights under (a) its certificate of incorporation, by-laws or other
organizational documents or (b) any indenture, credit agreement or other
document entered into to evidence or govern the terms of any Indebtedness
identified on Schedule 6.01 or permitted to be created, incurred or assumed
pursuant to Section 6.01 and, in each case, any indenture, credit agreement or
other document entered into with respect to any extension, renewal, replacement
or refinancing thereof, in each case except for any such amendment, modification
or waiver that, in the reasonable judgment of the Administrative Agent, would
not, in any material respect, adversely affect the interests of the Lenders.
SECTION 6.13. Interest Expense Coverage Ratio. The Borrower will not
permit the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest
Expense, in each case for any period of four consecutive fiscal quarters, to be
less than 2.5 to 1.0.
SECTION 6.14. Total Leverage Ratio. The Borrower will not permit the
Total Leverage Ratio as of any date during any period set forth below to exceed
the ratio set forth below opposite such period:
Period Ratio
------ -----
Effective Date through and including June 30, 2006 6.00 to 1.00
July 1, 2006 through and including December 31, 2006 5.75 to 1.00
January 1, 2007 through and including December 31, 2007 5.50 to 1.00
January 1, 2008 and thereafter 5.00 to 1.00
provided that, on and after the date that any Permitted Debt is incurred
(regardless of whether subsequently repaid), the Total Leverage Ratio shall not
exceed 6.5 to 1.0 (and the ratios set forth in the table above shall be
disregarded).
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SECTION 6.15. Senior Secured Leverage Ratio. On and after the date
that any Permitted Debt is incurred (regardless of whether subsequently repaid),
the Borrower will not permit the Senior Secured Leverage Ratio as of any date to
exceed 5.0 to 1.0.
SECTION 6.16. Capital Expenditures. The Borrower will not, nor will
it permit any of the Subsidiary Loan Parties to, make or commit to make any
Capital Expenditures, except (a) Capital Expenditures of the Borrower and the
Subsidiary Loan Parties in the ordinary course of business not exceeding
$15,000,000 in any fiscal year of the Borrower and (b) Capital Expenditures made
with the proceeds of any Reinvestment Amount; provided that, to the extent that
Capital Expenditures made by the Borrower and the Subsidiary Loan Parties during
any fiscal year are less than the maximum amount permitted to be made for such
fiscal year as set forth in clause (a) above, up to 100% of such unused amount
(each such amount, a "carry-forward amount") may be carried forward to the
immediately succeeding fiscal year and utilized to make Capital Expenditures in
such succeeding fiscal year in the event the amount set forth above for such
succeeding fiscal year has been used (it being understood and agreed that (i) no
carry-forward amount may be carried forward beyond the first fiscal year
immediately succeeding the fiscal year in which it arose and (ii) no portion of
the carry-forward amount available for any fiscal year may be used until the
entire amount of such Capital Expenditures permitted to be made in such fiscal
year (without giving effect to such carry-forward amount) shall be made).
SECTION 6.17. Excluded Subsidiaries. (a) The Borrower will not
permit any Excluded Subsidiary to (i) own or hold any Lien on any property of
the Borrower or any Subsidiary Loan Party, (ii) incur any Indebtedness that is
not Non-Recourse Debt, (iii) enter into any agreement, contract, arrangement or
understanding with the Borrower or any Subsidiary Loan Party that is not
expressly permitted by Section 6.09 or (iv) directly or indirectly own any
Indebtedness of or Equity Interests in, or have any other investments in, the
Borrower or any Subsidiary Loan Party.
(b) Each Excluded Subsidiary shall be a Person with respect to which
neither the Borrower nor any Subsidiary Loan Party has any direct or indirect
obligation to (i) subscribe for additional Equity Interests, (ii) maintain or
preserve such Person's financial condition or to cause such Person to achieve
any specified levels of operating results or (iii) except to the extent
permitted by Section 6.04, otherwise guarantee performance or payment of any
obligations of such Person.
(c) If, at any time, any Excluded Subsidiary fails to meet the
requirements set forth in paragraphs (a) and (b) of this Section, such
Subsidiary shall thereafter cease to be an Excluded Subsidiary for purposes of
this Agreement and, as of such date, (i) any Indebtedness of such Subsidiary
shall be deemed to be incurred by a Subsidiary Loan Party, (ii) any Liens on the
property of such Subsidiary shall be deemed to be Liens on the property of a
Subsidiary Loan Party, (iii) any investments in such Subsidiary shall be deemed
to be investments in a Subsidiary Loan Party as of such date (and, if such
Indebtedness, investments or Liens are not permitted to be incurred or to exist
pursuant to this Agreement, the Borrower shall be in default hereunder) and (iv)
the Borrower shall
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promptly comply with the requirements of Section 5.12 and 5.13 with respect to
such Subsidiary.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement or any other Loan Document, when and as
the same shall become due and payable, and such failure shall continue
unremedied for a period of five Business Days;
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any Subsidiary in or in connection with any Loan
Document or any amendment or modification thereof or waiver thereunder, or in
any report, certificate, financial statement or other document furnished
pursuant to or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, shall prove to have been incorrect in
any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.04 (with respect to the
Borrower's existence) or 5.11 or in Article VI;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure shall
continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrower (which notice will be given at the request
of any Lender);
(f) the Borrower or any Subsidiary Loan Party shall fail to make any
payment (whether of principal or interest and regardless of amount) in respect
of any Material Indebtedness, when and as the same shall become due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (after the expiration of any applicable cure or grace period) the holder
or holders of any Material Indebtedness or any trustee or agent on its or their
behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (g) shall not
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apply to secured Indebtedness that becomes due as a result of the voluntary sale
or transfer of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Subsidiary Loan Party or its debts, or of a
substantial part of its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Subsidiary Loan Party or for a
substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for 60 days or an order or decree approving
or ordering any of the foregoing shall be entered;
(i) the Borrower or any Subsidiary Loan Party shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation, reorganization
or other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary Loan Party or
for a substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) the Borrower or any Subsidiary Loan Party shall become unable,
admit in writing its inability or fail generally to pay its debts as they become
due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $15,000,000 shall be rendered against the Borrower, any
Subsidiary Loan Party or any combination thereof and the same shall remain
undischarged for a period of 60 consecutive days during which execution shall
not be effectively stayed, or any action shall be legally taken by a judgment
creditor to attach or levy upon any assets of the Borrower or any Subsidiary
Loan Party to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) any Lien purported to be created under any Security Document
shall cease to be, or shall be asserted by any Loan Party not to be, a valid and
perfected Lien on (i) any material Collateral or (ii) any nonmaterial Collateral
to the extent that (within 30 days after the date on which such Lien ceases to
be, or is asserted by any Loan Party not to be, a valid and perfected Lien) a
valid and perfected Lien is not created on such Collateral, in each case with
the priority required by the applicable Security Document, except (A) as a
result of the sale or other disposition of the applicable Collateral in a
transaction permitted under the Loan Documents or (B) as a result of the
Administrative
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Agent's failure to maintain possession of any stock certificates, promissory
notes or other instruments delivered to it under any Security Document;
(n) the loss, revocation, suspension or material impairment of any
material FCC License shall occur; or
(o) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
bank and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the
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Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02), and (c) except as expressly set forth in the Loan
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
bank serving as Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken
by it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own gross
negligence or wilful misconduct. The Administrative Agent shall be deemed not to
have knowledge of any Default unless and until written notice thereof is given
to the Administrative Agent by the Borrower or a Lender, and the Administrative
Agent shall not be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with any
Loan Document, (ii) the contents of any certificate, report or other document
delivered thereunder or in connection therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth in any Loan Document, (iv) the validity, enforceability, effectiveness or
genuineness of any Loan Document or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in Article IV or elsewhere in
any Loan Document, other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor to the
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Bank and the Borrower.
Upon any such
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resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor; provided that no such consultation with the
Borrower shall be required if a Default has occurred and is continuing. If no
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may, on
behalf of the Lenders and the Issuing Bank, appoint a successor Administrative
Agent which shall be a bank with an office in New York, New York, or an
Affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations under the Loan Documents. The fees
payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower
and such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
Anything herein to the contrary notwithstanding, the Joint Lead
Arrangers, Joint Bookrunners, Syndication Agent and Co-Documentation Agents
shall, in their capacities as such, have no duties or responsibilities under
this Agreement or any other Loan Document. None of the Joint Lead Arrangers,
Joint Bookrunners, Syndication Agent or Co-Documentation Agents shall have or be
deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on the Joint Lead
Arrangers, Joint Bookrunners, Syndication Agent or Co-Documentation Agents in
deciding to enter into this Agreement or any other Loan Document or in taking or
not taking any action hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or
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overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
(i) if to the Borrower, to it at Cumulus Media Inc., 0000
Xxxxxxxx Xxxx, Xxxxxxxx 00, 00xx Xxxxx, Xxxxxxx, Xxxxxxx 00000,
Attention of General Counsel and Chief Financial Officer (Telecopy
No. (000) 000-0000);
(ii) if to the Administrative Agent, to JPMorgan Chase Bank,
N.A., Loan and Agency Services Group, 000 Xxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxx, Xxxxx 00000-0000, Attention of Xx. Xxxxxx Xxxxxx (Telecopy
No. (000) 000-0000), with a copy to JPMorgan Chase Bank, N.A., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xx. Xxxx
Xxxxxxxxxx (Telecopy No. (000) 000-0000);
(iii) if to the Issuing Bank, to it at JPMorgan Chase Bank,
N.A., in care of JPMorgan Treasury Services, 00000 Xxxxxxxx Xxxxx
Xxxxx, 0xx Xxxxx, Xxxxx, Xxxxxxx 00000, Attention of Standby LC
Department (Telecopy No. (000) 000-0000), with copies to JPMorgan
Chase Bank, Loan and Agency Services Group, 000 Xxxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxxx, Xxxxx 00000-0000, Attention of Xx. Xxxxxx Xxxxxx
(Telecopy No. (000) 000-0000) and to JPMorgan Chase Bank, N.A., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xx. Xxxx
Xxxxxxxxxx (Telecopy No. (000) 000-0000); and
(iv) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing
Bank and the Lenders hereunder and under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of any Loan Document or consent to any departure by
any Loan Party therefrom shall in any event be effective unless the same shall
be permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of
73
whether the Administrative Agent, any Lender or the Issuing Bank may have had
notice or knowledge of such Default at the time.
(b) Except as provided in Section 2.19 with respect to an
Incremental Facility Amendment, neither this Agreement nor any other Loan
Document nor any provision hereof or thereof may be waived, amended or modified
except, in the case of this Agreement, pursuant to an agreement or agreements in
writing entered into by the Borrower and the Required Lenders or, in the case of
any other Loan Document, pursuant to an agreement or agreements in writing
entered into by the Administrative Agent and the Loan Party or Loan Parties that
are parties thereto, in each case with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender
without the written consent of such Lender, (ii) reduce the principal amount of
any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce
any fees payable hereunder, without the written consent of each Lender affected
thereby, (iii) postpone the maturity of any Loan, or any scheduled date of
payment of the principal amount of any Tranche A Term Loan under Section 2.09,
or the required date of reimbursement of any LC Disbursement, or any date for
the payment of any interest or fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of expiration
of any Commitment, without the written consent of each Lender affected thereby,
(iv) change Section 2.17(b) or (c) in a manner that would alter the pro rata
sharing of payments required thereby, without the written consent of each
affected Lender, (v) change any of the provisions of this Section or the
percentage set forth in the definition of "Required Lenders" or any other
provision of any Loan Document specifying the number or percentage of Lenders
(or Lenders of any Class) required to waive, amend or modify any rights
thereunder or make any determination or grant any consent thereunder, without
the written consent of each Lender (or each Lender of such Class, as the case
may be), (vi) release any Subsidiary Loan Party from its Guarantee under the
Collateral Agreement (except as expressly provided in the Collateral Agreement),
or limit its liability in respect of such Guarantee, without the written consent
of each Lender, (vii) release all or substantially all of the Collateral from
the Liens of the Security Documents, without the written consent of each Lender
or (viii) change any provisions of any Loan Document in a manner that by its
terms adversely affects the rights in respect of payments due to Lenders holding
Loans of any Class differently than those holding Loans of any other Class,
without the written consent of Lenders holding a majority in interest of the
outstanding Loans and unused Commitments of each affected Class (in addition to
any consent required under any other clause of this Section); provided further
that (A) no such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent or the Issuing Bank without the prior written
consent of the Administrative Agent or the Issuing Bank, as the case may be, and
(B) any waiver, amendment or modification of this Agreement that by its terms
affects the rights or duties under this Agreement of one Class of Lenders (but
not any other Class of Lenders) may be effected by an agreement or agreements in
writing entered into by the Borrower and requisite percentage in interest of the
affected Class of Lenders that would be required to consent thereto under this
Section if such Class of Lenders were the only Class of Lenders hereunder at the
time. Notwithstanding the foregoing, any provision of this Agreement may be
amended by an agreement in writing entered into by the Borrower, the Required
Lenders and the Administrative Agent
74
(and, if its rights or obligations are affected thereby, the Issuing Bank) if
(i) by the terms of such agreement the Commitment of each Lender not consenting
to the amendment provided for therein shall terminate upon the effectiveness of
such amendment and (ii) at the time such amendment becomes effective, each
Lender not consenting thereto receives payment in full of the principal of and
interest accrued on each Loan made by it and all other amounts owing to it or
accrued for its account under this Agreement.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the syndication of the credit facilities provided for herein, the preparation
and administration of the Loan Documents or any amendments, modifications or
waivers of the provisions thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket
expenses incurred by the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by
the Administrative Agent, the Issuing Bank or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, the
Issuing Bank or any Lender, in connection with the enforcement or protection of
its rights in connection with the Loan Documents, including its rights under
this Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including all such reasonable out-of-pocket expenses incurred during
any workout, restructuring or negotiations in respect of such Loans or Letters
of Credit.
(b) The Borrower shall indemnify the Administrative Agent, the
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of any
Loan Document or any other agreement or instrument contemplated hereby, the
performance by the parties to the Loan Documents of their respective obligations
thereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any Mortgaged Property or any other property currently or formerly
owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and
75
nonappealable judgment to have resulted from the gross negligence or wilful
misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent or the Issuing Bank under paragraph
(a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or the Issuing Bank, as the case may be, such Lender's pro
rata share (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent or the Issuing Bank in its capacity as such. For purposes
hereof, a Lender's "pro rata share" shall be determined based upon its share of
the sum of the total Revolving Exposures, outstanding Tranche A Term Loans and
unused Commitments at the time.
(d) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a
result of, this Agreement or any agreement or instrument contemplated hereby,
the Transactions, any Loan or Letter of Credit or the use of the proceeds
thereof.
(e) All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i)
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder (other than as expressly provided in clause (ii) of
Section 6.03(a)) without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, express or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assignees
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) with the prior written consent
(such consent not to be unreasonably withheld) of:
76
(A) the Borrower; provided that no consent of the Borrower shall be
required for an assignment to a Lender, an Affiliate of a Lender, an
Approved Fund (as defined below) or, if an Event of Default has occurred
and is continuing, any other assignee;
(B) the Administrative Agent; provided that no consent of the
Administrative Agent shall be required for an assignment of (1) any
Revolving Commitment to an assignee that is a Lender with a Revolving
Commitment immediately prior to giving effect to such assignment or (2) a
Tranche A Term Loan to a Lender, an Affiliate of a Lender or an Approved
Fund; and
(C) in the case of an assignment of all or a portion of a Revolving
Commitment or any Lender's obligations in respect of its LC Exposure, the
Issuing Bank.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of
a Lender or an Approved Fund or an assignment of the entire remaining
amount of the assigning Lender's Commitment or Loans of any Class, the
amount of the Commitment or Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent),
unless each of the Borrower and the Administrative Agent otherwise
consents, shall not be less than $5,000,000 (or $1,000,000, in the case of
Tranche A Term Loans); provided that no such consent of the Borrower shall
be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement; provided that this clause shall not be construed to
prohibit the assignment of a proportionate part of all the assigning
Lender's rights and obligations in respect of one Class of Commitments or
Loans;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500 (with only one such fee payable
in connection with simultaneous assignments to or by two or more Approved
Funds); and
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
For purposes of this Section 9.04(b), the term "Approved Fund" has
the following meaning:
"Approved Fund" means any Person (other than a natural person) that
is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and
that is administered
77
or managed by (a) a Lender, (b) an Affiliate of that Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Assumption the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.14, 2.15, 2.16 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 9.04 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section 9.04.
(iv) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitment of, and principal
amount of the Loans and LC Disbursements owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register
shall be conclusive, and the Borrower, the Administrative Agent, the Issuing
Bank and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in this Section
9.04(b) and any written consent to such assignment required by this Section
9.04(b), the Administrative Agent shall accept such Assignment and Assumption
and record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of or notice to the
Borrower, the Administrative Agent or the Issuing Bank, sell participations to
one or more banks or other entities (a "Participant") in all or a portion of
such Lender's rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it); provided that (A) such
Lender's obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (C) the Borrower, the Administrative Agent,
the Issuing Bank and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and
78
the other Loan Documents. Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole
right to enforce the Loan Documents and to approve any amendment, modification
or waiver of any provision of the Loan Documents; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in clause
(i), (ii), (iii) or (iv) of the first proviso to Section 9.02(b) that affects
such Participant. Subject to paragraph (c)(ii) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections 2.14,
2.15 and 2.16 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 9.08 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.17(c) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.14 or 2.16 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.16 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.16(e) as though it were a Lender.
(c) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto. In
the case of any Lender that is a fund that invests in bank loans, such Lender
may, without the consent of the Borrower or the Administrative Agent, assign or
pledge all or any portion of its rights (but not obligations) under this
Agreement, including the Loans and any notes or any other instrument evidencing
its rights as a Lender under this Agreement, to any holder of, trustee for, or
any other representative of holders of, obligations owed or securities issued by
such fund, as security for such obligations or securities; provided that any
foreclosure or similar action by such trustee or representative shall be subject
to the provisions of this Section 9.04 concerning assignments.
SECTION 9.05. Survival. All covenants, agreements, representations
and warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, the Issuing
Bank or any Lender may have had notice or knowledge of any Default or
79
incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the principal
of or any accrued interest on any Loan or any fee or any other amount payable
under this Agreement is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Letters of Credit and the Commitments or the termination of
this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. This Agreement shall become effective as provided in the Amendment and
Restatement Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the laws of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or
80
proceeding arising out of or relating to any Loan Document, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State or, to
the extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent, the Issuing Bank
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement or any other Loan Document against the Borrower or its properties
in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any other Loan
Document in any court referred to in paragraph (b) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent, the
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information
81
(as defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority or rating agency, (c) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, (d) to any other party to this Agreement, (e) in connection with the
exercise of any remedies hereunder or any suit, action or proceeding relating to
this Agreement or any other Loan Document or the enforcement of rights hereunder
or thereunder, (f) subject to an agreement containing provisions substantially
the same as those of this Section, to any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement, (g) with the consent of the Borrower, (h) to any direct or
indirect contractual counterparty in any swap, hedge or similar agreement or
such contractual counterparty's professional advisor to such contractual
counterparty, so long as such contractual counterparty or such professional
advisor agrees to be bound by the provisions of this Section, or (i) to the
extent such Information (i) becomes publicly available other than as a result of
a breach of this Section or (ii) becomes available to the Administrative Agent,
the Issuing Bank or any Lender on a nonconfidential basis from a source other
than the Borrower. For the purposes of this Section, "Information" means all
information received from the Borrower relating to the Borrower or its business,
other than any such information that is available to the Administrative Agent,
the Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by
the Borrower; provided that, in the case of information received from the
Borrower after the Effective Date, such information is clearly identified at the
time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively, the "Charges"), shall exceed
the maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date
of repayment, shall have been received by such Lender.
SECTION 9.14. USA Patriot Act. Each Lender hereby notifies the
Borrower that pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L.
82
107-56 (signed into law October 26, 2001)), (the "Act"), it is required to
obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender to identify the Borrower in accordance with the Act.
SECTION 9.15. Waiver of Notice of Termination Under Existing Credit
Agreement. Each Lender that is a "Lender" under (and as defined in) the Existing
Credit Agreement hereby waives any requirement under the Existing Credit
Agreement that notice be given prior to the prepayment of loans or termination
of commitments thereunder; provided that such commitments are terminated by
notice to the lenders under the Existing Credit Agreement on the Effective Date.
83
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first written above.
CUMULUS MEDIA INC.,
By
____________________________
Name:
Title:
84
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
By
/s/ Xxxxxx Xxxxxxxxx
-----------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
85
[LENDERS]
SIGNATURE PAGE IN RESPECT OF THE
CREDIT AGREEMENT, DATED AS OF
JULY 14, 2005, AMONG CUMULUS
MEDIA INC., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
ALLIED IRISH BANKS
New York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
By: /s/ Rolsin X'Xxxxxxx
-------------------------
Title: Rolsin X'Xxxxxxx
Title: Assistant Vice
President
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxxxxxx X. Xxx
-------------------------
Name: Xxxxxxxxxxx X. Xxx
Title: Vice President
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
By: /s/ Xxxxxxx Xxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
86
[LENDERS]
SIGNATURE PAGE IN RESPECT OF THE
CREDIT AGREEMENT, DATED AS OF
JULY 14, 2005, AMONG CUMULUS
MEDIA INC., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
BNP PARIBAS
By: /s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: Director
By: /s/ Xxxxxxxxx Xxxxxx
-------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
CALYAN NEW YORK BRANCH.
By: /s/ Xxxxxx Xxxx
-------------------------
Name: Xxxxxx Xxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director &
Manager
CIT LENDING SERVICES
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
87
[LENDERS]
SIGNATURE PAGE IN RESPECT OF THE
CREDIT AGREEMENT, DATED AS OF
JULY 14, 2005, AMONG CUMULUS
MEDIA INC., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERNLEEN BANK
B.A., "RABOBANK
INTERNATIONAL", NEW YORK
BRANCH
By: /s/ Xxxxxxxx Xxxxxx
-------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Director
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Duly Authorized
Signatory
XXXXXX XXXXXXX FINANCING,
INC.
By: /s/ Xxxxxxx Xxxxxxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: Vice President
88
[LENDERS]
SIGNATURE PAGE IN RESPECT OF THE
CREDIT AGREEMENT, DATED AS OF
JULY 14, 2005, AMONG CUMULUS
MEDIA INC., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
ING CAPITAL, LLC
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxxx X. X'Xxxxx
-------------------------
Name: Xxxxxxxx X. X'Xxxxx
Title: Vice President
MIZUHO CORPORATE BANK, LTD.
By: /s/ Xxxx Xxxxxxx
-------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
NATIONAL CITY BANK
By: /s/ Xxxxxxxxx Xxxxxxxx
-------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Senior Vice President
89
[LENDERS]
SIGNATURE PAGE IN RESPECT OF THE
CREDIT AGREEMENT, DATED AS OF
JULY 14, 2005, AMONG CUMULUS
MEDIA INC., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
ROYAL BANK OF CANADA
By: /s/ Xxx X. Xxxxxxx
-------------------------
Name: Xxx X. Xxxxxxx
Title: Authorized Signatory
SOCIETE GENERALE
By: /s/ Xxxx Xxxxx
-------------------------
Name: Xxxx Xxxxx
Title: Managing Director
SUMITOMO MITSUI BANKING
CORPORATION
By: /s/ Xxxxx X. Xxxx
-------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
SUNTRUST BANK
By: /s/ Xxxxx Xxxxx
-------------------------
Name: Xxxxx Xxxxx
Title: Director
THE BANK OF NEW YORK
By: /s/ Xxxxx Xxxxxx
-------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
90
[LENDERS]
SIGNATURE PAGE IN RESPECT OF THE
CREDIT AGREEMENT, DATED AS OF
JULY 14, 2005, AMONG CUMULUS
MEDIA INC., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
THE ROYAL BANK OF SCOTLAND
PLC
By: /s/ Xxxxxxx Xxxxx
-------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
UNION BANK OF CALIFORNIA,
N.A.
By: /s/ Xxxxx Xxxxxx
-------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
U.S. BANK NATIONAL
ASSOCIATION
By: /s/ Xxxx X. Xxxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
WACHOVIA BANK, N.A.
By: /s/ Xxxx Xxxxx
-------------------------
Name: Xxxx Xxxxx
Title: Director
