EXHIBIT 10.1
EXECUTION COPY
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Published CUSIP Number: ________________
CREDIT AGREEMENT
dated as of
June 7, 2006,
among
CUMULUS MEDIA INC.,
THE LENDERS PARTY HERETO
and
BANK OF AMERICA, N.A.,
as Administrative Agent
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arranger and Joint Bookrunner
WACHOVIA CAPITAL MARKETS, LLC,
as Joint Lead Arranger and Joint Bookrunner
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent
CALYON NEW YORK BRANCH,
THE ROYAL BANK OF SCOTLAND PLC,
GENERAL ELECTRIC CAPITAL CORPORATION,
ROYAL BANK OF CANADA,
U.S. BANK, NATIONAL ASSOCIATION,
THE BANK OF NEW YORK,
SUMITOMO MITSUI BANKING CORPORATION, AND
ING CAPITAL LLC,
as Co-Documentation Agents
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS
SECTION 1.01. Defined Terms........................................... 1
SECTION 1.02. Classification of Loans and Borrowings.................. 24
SECTION 1.03. Terms Generally......................................... 25
SECTION 1.04. Accounting Terms; GAAP.................................. 25
ARTICLE II THE CREDITS
SECTION 2.01. Commitments; Term Loans................................. 25
SECTION 2.02. Loans and Borrowings.................................... 26
SECTION 2.03. Requests for Borrowings................................. 26
SECTION 2.04. Letters of Credit....................................... 27
SECTION 2.05. Funding of Borrowings................................... 32
SECTION 2.06. Interest Elections...................................... 33
SECTION 2.07. Termination and Reduction of Commitments................ 34
SECTION 2.08. Repayment of Loans; Evidence of Debt.................... 35
SECTION 2.09. Amortization of Term Loans.............................. 35
SECTION 2.10. Prepayment of Loans..................................... 37
SECTION 2.11. Fees.................................................... 38
SECTION 2.12. Interest................................................ 39
SECTION 2.13. Alternate Rate of Interest.............................. 40
SECTION 2.14. Increased Costs......................................... 41
SECTION 2.15. Break Funding Payments.................................. 42
SECTION 2.16. Taxes................................................... 42
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs................................................ 43
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.......... 45
SECTION 2.19. Incremental Facilities.................................. 46
ARTICLE III REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers.................................... 47
SECTION 3.02. Authorization; Enforceability........................... 47
SECTION 3.03. Governmental Approvals; No Conflicts.................... 47
SECTION 3.04. Financial Condition; No Material Adverse Change......... 48
SECTION 3.05. Properties and Licenses................................. 48
SECTION 3.06. Litigation and Environmental Matters.................... 48
SECTION 3.07. Compliance with Laws and Agreements..................... 49
SECTION 3.08. Investment and Holding Company Status................... 49
SECTION 3.09. Tax Matters............................................. 49
SECTION 3.10. ERISA................................................... 49
SECTION 3.11. Disclosure.............................................. 50
SECTION 3.12. Subsidiaries............................................ 50
SECTION 3.13. Insurance............................................... 50
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SECTION 3.14. Labor Matters........................................... 50
SECTION 3.15. Solvency................................................ 50
SECTION 3.16. Security Interests...................................... 51
SECTION 3.17. Specially Designated Nationals or Blocked Persons....... 51
ARTICLE IV CONDITIONS
SECTION 4.01. Effective Date.......................................... 51
SECTION 4.02. Each Credit Event....................................... 53
ARTICLE V AFFIRMATIVE COVENANTS
SECTION 5.01. Financial Statements and Other Information.............. 53
SECTION 5.02. Notices of Material Events.............................. 56
SECTION 5.03. Information Regarding Collateral........................ 56
SECTION 5.04. Existence; Conduct of Business.......................... 57
SECTION 5.05. Payment of Obligations.................................. 57
SECTION 5.06. Maintenance of Properties............................... 57
SECTION 5.07. Insurance............................................... 57
SECTION 5.08. Casualty and Condemnation............................... 57
SECTION 5.09. Books and Records; Inspection Rights.................... 58
SECTION 5.10. Compliance with Laws.................................... 58
SECTION 5.11. Use of Proceeds and Letters of Credit................... 58
SECTION 5.12. Additional Subsidiaries................................. 58
SECTION 5.13. Further Assurances...................................... 59
SECTION 5.14. Hedging Agreements...................................... 59
SECTION 5.15. Additional Collateral................................... 59
ARTICLE VI NEGATIVE COVENANTS
SECTION 6.01. Indebtedness; Certain Equity Securities................. 60
SECTION 6.02. Liens................................................... 61
SECTION 6.03. Fundamental Changes..................................... 62
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions............................................ 63
SECTION 6.05. Asset Sales............................................. 64
SECTION 6.06. Sale and Leaseback Transactions......................... 65
SECTION 6.07. Hedging Agreements...................................... 65
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness... 65
SECTION 6.09. Transactions with Affiliates............................ 67
SECTION 6.10. Restrictive Agreements.................................. 67
SECTION 6.11. FCC Licenses and License Subsidiaries................... 67
SECTION 6.12. Amendment of Material Documents......................... 67
SECTION 6.13. Consolidated Fixed Charge Coverage Ratio................ 68
SECTION 6.14. Total Leverage Ratio.................................... 68
SECTION 6.15. [Intentionally omitted.]................................ 69
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SECTION 6.16. Capital Expenditures.................................... 69
SECTION 6.17. Excluded Subsidiaries................................... 69
ARTICLE VII EVENTS OF DEFAULT
ARTICLE VIII THE ADMINISTRATIVE AGENT
ARTICLE IX MISCELLANEOUS
SECTION 9.01. Notices................................................. 77
SECTION 9.02. Waivers; Amendments..................................... 78
SECTION 9.03. Expenses; Indemnity; Damage Waiver...................... 80
SECTION 9.04. Successors and Assigns.................................. 82
SECTION 9.05. Survival................................................ 86
SECTION 9.06. Counterparts; Integration; Effectiveness................ 86
SECTION 9.07. Severability............................................ 86
SECTION 9.08. Right of Setoff......................................... 86
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process................................................. 87
SECTION 9.10. WAIVER OF JURY TRIAL.................................... 87
SECTION 9.11. Headings................................................ 88
SECTION 9.12. Confidentiality......................................... 88
SECTION 9.13. Interest Rate Limitation................................ 88
SECTION 9.14. USA Patriot Act......................................... 89
SECTION 9.15. No Advisory or Fiduciary Responsibility................. 89
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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 6.10 Existing Restrictions
Schedule 9.01 Administrative Agent's Office; Certain Addresses for Notices
Schedule 9.04 Processing and Recordation Fees
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 June 7, 2006, among
CUMULUS MEDIA INC., THE LENDERS PARTY HERETO, and
BANK OF AMERICA, 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, 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 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 determined by the Administrative
Agent pursuant to the following formula: the product of (a) the LIBO Rate for
such Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means Bank of America, 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.
"Agreement" means this Credit Agreement.
"Agreement Date" means the date on which this Agreement is executed by all
the parties hereto, which date may occur prior to the Effective Date.
"Alternate Base Rate" means for any day a fluctuating rate per annum equal
to the higher of (a) the Federal Funds Effective Rate plus 1/2 of 1% and (b) the
rate of interest in effect for such day as publicly announced from time to time
by Bank of America as its "prime rate." The "prime rate" is a rate set by Bank
of America based upon various factors including Bank of America's costs and
desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by Bank of America shall
take effect at the opening of business on the day specified in the public
announcement of such change.
"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, (a) for any day with respect to any ABR Loan that
is a Term Loan, 1.00% per annum, (b) for any day with respect to any Eurodollar
Loan that is a Term Loan, 2.00% per annum, and (c) for any day with respect to
any ABR Loan or Eurodollar Loan that is a Revolving Loan, or with respect to the
commitment fees payable hereunder, the
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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
audited financial statements for the fiscal year ended December 31, 2006,
Category 1 below shall apply with respect to any Revolving Loan or commitment
fee:
ABR Eurodollar Commitment
Total Leverage Ratio: Spread Spread Fee
--------------------- ------ ---------- ----------
Category 1 1.00% 2.00% 0.375%
> or = 6.50 to 1.00
Category 2
< 6.50 to 1.00 and 0.50% 1.50% 0.375%
> or = 6.00 to 1.00
Category 3
< 6.00 to 1.00 and 0.25% 1.25% 0.375%
> or = 5.00 to 1.00
Category 4
< 5.00 to 1.00 and 0.00% 1.00% 0.375%
> or = 4.50 to 1.00
Category 5
< 4.50 to 1.00 and 0.00% 0.75% 0.300%
> or = 4.00 to 1.00
Category 6 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 if the Borrower fails to deliver the consolidated
financial statements required to be delivered by it pursuant to Section 5.01(a)
or (b) and the certificate of a Financial Officer delivered in connection
therewith, as of the first Business Day after the date on which such financial
statements and certificate of a Financial Officer were required to have been
delivered until the Business Day after delivery thereof.
"Approved Fund" has the meaning set forth in Section 9.04(b).
"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 group of affiliated
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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 (i) 10% of the Broadcast Cash Flow of
the Borrower for such period if either the Total Leverage Ratio, measured prior
to giving effect to such transaction, or the Pro Forma Total Leverage Ratio,
measured after giving effect to such transaction, is greater than or equal to
6.50 to 1.00, and (ii) 20% of the Broadcast Cash Flow of the Borrower for such
period if both the Total Leverage Ratio, measured prior to giving effect to such
transaction, and the Pro Forma Total Leverage Ratio, measured after giving
effect to such transaction, is less than 6.50 to 1.00, (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 (i) 10% of the Broadcast Cash Flow of
the Borrower for such period if either the Total Leverage Ratio, measured prior
to giving effect to such transaction, or the Pro Forma Total Leverage Ratio,
measured after giving effect to such transaction, is greater than or equal to
6.50 to 1.00, and (ii) 45% of the Broadcast Cash Flow of the Borrower for such
period if both the Total Leverage Ratio, measured prior to giving effect to such
transaction, and the Pro Forma Total Leverage Ratio, measured after giving
effect to such transaction, is less than 6.50 to 1.00 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).
"Assignee Group" means two or more Eligible Assignees that are Affiliates
of one another or two or more Approved Funds managed by the same investment
advisor.
"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.
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"Auto-Extension Letter of Credit" has the meaning set forth in Section
2.04(b)(ii).
"Bank of America" means Bank of America, N.A. and its successors.
"BAS" means Banc of America Securities LLC and its successors.
"BOA Fee Letter" means that certain Fee Letter dated as of May 18, 2006
among Bank of America, BAS and the Borrower.
"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.
"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
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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).
"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 Term
Loans and, when used in reference to any Commitment, refers to whether such
Commitment is a Revolving Commitment, 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
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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;
(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) without limiting the foregoing, all FCC Licenses of the Borrower
and its Subsidiaries shall have been contributed to a License Subsidiary
and all outstanding Equity Interests of each License Subsidiary shall have
been pledged pursuant to the Collateral Agreement 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; 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, Term Commitment or Incremental
Term Commitment, if any, or any combination thereof (as the context requires).
"Consolidated Current Assets" means all assets of the Borrower and the
Subsidiary Loan Parties (other than cash and cash equivalents) which would be
classified as a current asset, all determined on a consolidated basis.
"Consolidated Current Liabilities" means all liabilities of the Borrower
and the Subsidiary Loan Parties which by their terms are payable within one year
(but excluding all Indebtedness payable on demand or maturing not more than one
year from the date of computation and the current portion of Indebtedness having
a maturity date in excess of one year), all determined on a consolidated basis.
"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
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losses, whether or not otherwise includable as a separate item in the statement
of such Consolidated Net Income for such period plus (v) each of (A) losses on
sales of assets outside of the ordinary course of business, (B) impairment of
assets (other than current assets), (C) restructuring charges, (D) transaction
costs required to be expenses in connection with Permitted Acquisitions,
(E) employee stock compensation charges, (F) non-cash contractual obligations,
and (G) write-offs of deferred costs for such period plus (vi) up to $4,000,000
of cash charges incurred in the fiscal year of the Borrower ending
December 31, 2006 in connection with the forgiveness of an outstanding loan
previously made by the Borrower to Xxxxx X. Xxxxxx, Xx., in accordance with the
terms of the employment agreement between Xx. Xxxxxx and the Borrower plus
(vii) 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 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, minus (b) without duplication and to the extent
included in determining such Consolidated Net Income, the sum of (i) any
extraordinary, unusual or 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, plus
(c) without duplication and to the extent not included in determining such
Consolidated Net Income, cash actually received by the Borrower or any
Subsidiary from Cumulus Media Partners, LLC or any of its subsidiaries,
including without limitation, cash distributions and cash payments of management
fees, less (d) without duplication and to the extent not included in determining
such Consolidated Net Income, cash expenses paid in connection with cash
distributions and cash payments received from Cumulus Media Partners, LLC or any
of its subsidiaries.
"Consolidated Fixed Charges" means, for any period, the sum of (a)
Consolidated Interest Expense paid in cash during such period, plus (b) Federal,
state, local and foreign income taxes paid in cash by the Borrower and its
Subsidiaries on a consolidated basis during such period, plus (c) dividends paid
in cash by the Borrower during such period plus (d) Capital Expenditures during
such period, plus (e) Consolidated Scheduled Principal Payments for such period.
"Consolidated Funded Indebtedness" means, as of any date of determination,
for the Borrower and its Subsidiaries on a consolidated basis, the outstanding
principal amount of all obligations, whether current or long-term, for borrowed
money (including Obligations hereunder) and all obligations evidenced by bonds,
debentures, notes, loan agreements or other similar instruments.
"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 its Subsidiaries 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 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)
8
below that were amortized or accrued in a previous period minus (b) the sum of
(i) interest income of the Borrower and its Subsidiaries 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 its Subsidiaries 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 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 its Subsidiaries 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.
"Consolidated Scheduled Principal Payments" means, for any period, for the
Borrower and its Subsidiaries on a consolidated basis, all scheduled payments of
principal of the Borrower and its Subsidiaries in connection with Indebtedness
for money borrowed or in connection with the deferred purchase price of assets
which payments are scheduled to be made during such period, in each case to the
extent treated as principal in accordance with GAAP.
"Consolidated Working Capital" means, as of any date on which the amount
thereof is to be determined, the excess of Consolidated Current Assets over
Consolidated Current Liabilities on such date.
"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 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 Term Loan Maturity Date.
"dollars" or "$" refers to lawful money of the United States of America.
9
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Eligible Assignee" means any Person that meets the requirements to be an
assignee under Sections 9.04(b) (subject to such consents, if any, as may be
required under Section 9.04(b).
"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 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
10
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.
"Excess Cash Flow" means, with respect to the Borrower and its Subsidiaries
on a consolidated basis for any fiscal year, the difference of (i) Consolidated
EBITDA for such period (including therein any net cash gain or loss, as
applicable, of an extraordinary nature otherwise excluded from the calculation
thereof in the definition of "Consolidated Net Income", but excluding any tax
refunds received by the Borrower or its Subsidiaries), minus (ii) the sum of
(without duplication) (A) the change in Consolidated Working Capital as at the
end of such fiscal year, plus (B) Capital Expenditures paid in cash by the
Borrower and its Subsidiaries during such period not prohibited hereunder, plus
(C) Consolidated Interest Expenses for such period, plus (D) taxes paid in cash
during such period, plus (E) the aggregate amount of any prepayments of the Term
Loans made by the Borrower pursuant to Section 2.10(a) during such period, the
aggregate amount of prepayments made during such period in connection with
optional reductions of the Revolving Commitments during such period, the
aggregate amount of required repayments of principal of the Term Loans during
such period, and the aggregate amount of scheduled payments made during such
period in respect of Indebtedness of the Borrower and the Subsidiary Loan
Parties described in Section 6.01(a)(ii), (v), (vi), (vii) and (viii).
"Excess Cash Flow Prepayment Percentage" means, as of any date on which
mandatory prepayments arising from Excess Cash Flow are required to be made
pursuant to Section 2.10(d), if the Total Leverage Ratio of the Borrower and its
Subsidiaries as of the last day of the fiscal year of the Borrower for which
Excess Cash Flow is being measured is (a) greater than or equal to 6.50 to 1.00,
an amount equal to 50%, (b) greater than or equal to 5.00 to 1.00 but less than
6.50 to 1.00, an amount equal to 25%, and (c) less than 5.00 to 1.00, an amount
equal to 0%.
"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, Foreign Subsidiaries,
Broadcast Software International 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
11
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 July
14, 2005, among the Borrower, the lenders party thereto and JPMorgan Chase Bank,
N.A., as Administrative Agent.
"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 rate per annum equal
to the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day; provided that (a) if such day is not a Business
Day, the Federal Funds Effective Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Effective Rate for such day shall be
the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of
1%) charged to Bank of America on such day on such transactions as determined by
the Administrative Agent.
"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.
12
"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.
"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.
13
"Incremental Revolving Exposure" means, with respect to any Incremental
Revolving 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.
"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 Offering Memorandum dated
May, 2006 relating to the Borrower and the Transactions.
14
"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 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, (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 and (c) no Interest Period shall extend beyond (i)
in the case of a Revolving Loan, the Revolving Maturity Date and (ii) in the
case of a Term Loan, the Term Loan Maturity Date. 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 Bank of America, 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.
"Joint Lead Arrangers" means BAS and WCM, in their capacity as joint lead
arrangers and joint book managers.
"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.
15
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
"LIBO Rate" means, for any Interest Period with respect to a Eurodollar
Borrowing, the rate per annum equal to the British Bankers Association LIBOR
Rate ("BBA LIBOR"), as published by Reuters (or other commercially available
source providing quotations of BBA LIBOR as designated by the Administrative
Agent from time to time) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, for dollar deposits (for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period. If such rate is not available at such time for any reason,
then the "LIBO Rate" for such Interest Period shall be the rate per annum
determined by the Administrative Agent to be the rate at which deposits in
dollars for delivery on the first day of such Interest Period in same day funds
in the approximate amount of the Eurodollar Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest Period
would be offered by Bank of America's London Branch to major banks in the London
interbank eurodollar market at their request 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, each promissory note executed in
connection herewith, 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.
"LOC Required Expiration Date" has the meaning assigned to such term in
Section 2.04(c).
"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
the Borrower to perform any of its obligations under any Loan Document, (c) the
ability of the Loan Parties (taken as a whole) to perform their obligations
under any Loan Document or (d) 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
16
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.
"Maximum Permitted Time" means (a) with respect to Section 5.01(a), the
latest date for the delivery of annual financial statements on Form 10-K (or
other applicable form) pursuant to the rules of the SEC in effect at such time,
including any applicable grace period for which no special application to the
SEC is required, and (b) with respect to Section 5.01(b), the latest date for
the delivery of quarterly financial statements on Form 10-Q (or other applicable
form) pursuant to the rules of the SEC in effect at such time, including any
applicable grace period for which no special application to the SEC is required.
"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, 5.13 or 5.15.
"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-Extension Notice Date" has the meaning set forth in Section
2.04(b)(ii).
17
"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.
"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.
"PCAOB" means the Public Company Accounting Oversight Board.
"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 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), (e) if either the Total Leverage
Ratio, measured prior to giving effect to such acquisition (or series or group
of related acquisitions), or the Pro Forma Total Leverage Ratio, measured after
giving effect to such acquisition (or series or group of related acquisitions),
is greater than or equal to 6.50 to 1.00, then (i) the aggregate fair market
value of all consideration paid for such acquisition (or series or group of
related acquisitions) together with all previous acquisitions permitted
hereunder and consummated after the Effective Date, excluding consideration in
the form of Equity Interests of the Borrower, shall not exceed $50,000,000 and
(ii) the Person, division or
18
line of business acquired shall have Consolidated EBITDA (measured for such
Person, division or line of business in substantially the same manner as
calculated herein for the Borrower and its Subsidiaries) for the four-quarter
period most recently ended greater than $0, and (f) 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.
"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;
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
19
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 the Principal or, with respect to the Principal,
(a) any spouse or immediate family member of the 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 the 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
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 (including any sale or issuance of Equity
Interests of the Borrower or any Subsidiary Loan Party, other than
issuances by a Subsidiary Loan Party to the Borrower or another Subsidiary
Loan Party), other than (i) dispositions described in clauses (a), (b)
20
and (d) 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, but excluding any Indebtedness permitted by Section 6.01.
"Principal" means Xxxxx X. Xxxxxx, Xx.
"Private Repurchase" means the purchase of up to 5,000,000 shares of the
Borrower's Class B Common Stock from Banc of America Capital Investors SBIC,
L.P. and B.A. Capital, L.P., or one of their Affiliates pursuant to that certain
Stock Purchase Agreement dated as of May 9, 2006 by and among the Borrower, Banc
of America Capital Investors SBIC, L.P., and BA Capital Company, L.P.
"Pro Forma Total Leverage Ratio" means, with respect to any particular
usage thereof, the Total Leverage Ratio of the Borrower and its Subsidiaries
measured as of the last day of the period of four consecutive fiscal quarters
most recently ended prior to the date of measurement thereof, and calculated pro
forma for the occurrence of the particular matter to which such term relates.
"Public Tender Offer" means the tender offer for up to 11,500,000 shares of
the Borrower's Class A Common Stock as described in the Offer to Purchase dated
May 17, 2006.
"Register" has the meaning assigned to such term in Section 9.04.
"Registered Public Accounting Firm" has the meaning specified in the
Securities Laws and shall be independent of the Borrower as prescribed in the
Securities Laws.
"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, Term Loans, Incremental Term Loans and unused
Commitments representing more than 50% of the sum of the total Revolving
Exposures, Incremental Revolving Exposures, outstanding Term Loans, outstanding
Incremental Term Loans and unused Commitments at such time.
21
"Required Revolving Lenders" means, at any time, Lenders having Revolving
Exposures, Incremental Revolving Exposures, and unused Revolving Commitments
representing more than 50% of the sum of the total Revolving Exposures,
Incremental Revolving Exposures and unused Revolving Commitments at such time.
"Required Term Loan Lenders" means, at any time, Lenders having Term Loans,
Incremental Term Loans and unused Term Loan Commitments representing more than
50% of the sum of the total outstanding Term Loans and outstanding Incremental
Term Loans at such time.
"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, cancellation 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 Revolving Maturity Date and
the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Revolving 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 Revolving Lender's Revolving
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.07, and (c) reduced or increased from time to time
pursuant to assignments by or to such Revolving Lender pursuant to Section 9.04.
The amount of each Revolving Lender's Revolving Commitment is set forth on
Schedule 2.01, or in the Assignment and Assumption pursuant to which such
Revolving Lender shall have assumed its Revolving Commitment, as applicable. The
initial aggregate amount of the Revolving Commitments is $100,000,000.
"Revolving Exposure" means, with respect to any Revolving Lender at any
time, the sum of the outstanding principal amount of such Revolving 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.
"Revolving Maturity Date" means June 7, 2012.
"Xxxxxxxx-Xxxxx" means the Xxxxxxxx-Xxxxx Act of 2002.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
22
"Securities Laws" means the Securities Act of 1933, the Securities Exchange
Act of 1934, Xxxxxxxx-Xxxxx and the applicable accounting and auditing
principles, rules, standards and practices promulgated, approved or incorporated
by the SEC or the PCAOB.
"Security Documents" means the Collateral Agreement, the Mortgages and each
other security agreement or other instrument or document executed and delivered
pursuant to Section 4.01, 5.12, 5.13 or 5.15 to secure any of the Obligations.
"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.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc, and any succesor thereto.
"Statutory Reserve Rate" means, for any day during an Interest Period, 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 reserve percentage
(expressed as a decimal, carried out to five decimal places) in effect on such
day, whether or not applicable to any Lender, under regulations issued from time
to time by the Board for determining the maximum reserve requirement (including
any emergency, supplemental or other marginal reserve requirement) with respect
to Eurocurrency funding (currently referred to as "Eurocurrency liabilities").
The Adjusted LIBO Rate for each outstanding Eurodollar Loans shall be adjusted
automatically as of the effective date of any change in the Statutory Reserve
Rate.
"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; provided that, so long
as the Borrower owns less than 50% of the equity interest in and has less than
50% of the ordinary voting power of Cumulus Media Partners, LLC, Cumulus Media
Partners, LLC shall not be considered a 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.
"Term Loan Commitment" means, with respect to each Term Loan Lender, the
commitment, if any, of such Term Loan Lender to make a Term Loan pursuant to
clause (a) of
23
Section 2.01. The amount of each Term Loan Lender's Term Loan Commitment is set
forth on Schedule 2.01, or in the Assignment and Assumption pursuant to which
such Term Loan Lender shall have assumed its Term Loan Commitment, as
applicable. The initial aggregate amount of the Term Loan Lenders' Term Loan
Commitments is $750,000,000.
"Term Loan Lender" means a Lender with a Term Loan Commitment or an
outstanding Term Loan.
"Term Loan Maturity Date" means June 7, 2013.
"Term Loan" means a Loan made pursuant to clause (a) of Section 2.01.
"Total Indebtedness" means, as of any date, the sum of (a) the aggregate
principal amount of Indebtedness of the Borrower and its Subsidiaries
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 its
Subsidiaries 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 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).
"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, the Private Repurchase, the Public
Tender Offer 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.
"WCM" means Wachovia Capital Markets, LLC and its successors.
"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 Revolving Loan"). Borrowings also may be classified and referred to
by Class (e.g., a "Revolving Borrowing") or
24
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, (a) each Term Loan Lender agrees to make Term Loans to the
Borrower up to three times from and including the Effective Date to and
including July 10, 2006, in an aggregate principal amount not exceeding its Term
Loan Commitment, and (b) each Revolving Lender agrees to make Revolving Loans to
the Borrower from time to time during the Revolving
25
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 Term Loans may not be reborrowed. Any portion of
the Term Loan Commitment of any Term Loan Lender that has not been drawn as a
Term Loan by 5:00 p.m., New York City time, on July 10, 2006 shall be terminated
and shall no longer be available as a Borrowing hereunder.
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
applicable 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 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 (i) in
the case of any Revolving Borrowing, after the Revolving Maturity Date and (ii)
in the case of any Term Borrowing, after the Term Loan Maturity Date.
SECTION 2.03. Requests for Borrowings. To request a Revolving Borrowing or
a Term 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.
26
Each such telephonic and written 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 (or in the case
of a Term Borrowing on the Effective Date to pay off and terminate the
Existing Credit Agreement, the account of the administrative agent of the
Existing Credit Agreement) 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 Revolving Lender of the details thereof
and of the amount of such Revolving Lender's Revolving 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.
(i) 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),
27
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 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, (x) the LC Exposure shall not exceed $10,000,000 and (y) the
total Revolving Exposures shall not exceed the total Revolving Commitments.
(ii) If the Borrower so requests in any applicable letter of credit
application, the Issuing Bank may, in its sole and absolute discretion,
agree to issue a Letter of Credit that has automatic extension provisions
(each, an "Auto-Extension Letter of Credit"); provided that any such
Auto-Extension Letter of Credit must permit the Issuing Bank to prevent any
such extension at least once in each twelve-month period (commencing with
the date of issuance of such Letter of Credit) by giving prior notice to
the beneficiary thereof not later than a day (the "Non-Extension Notice
Date") in each such twelve-month period to be agreed upon at the time such
Letter of Credit is issued. Unless otherwise directed by the Issuing Bank,
the Borrower shall not be required to make a specific request to the
Issuing Bank for any such extension. Once an Auto-Extension Letter of
Credit has been issued, the Revolving Lenders shall be deemed to have
authorized (but may not require) the Issuing Bank to permit the extension
of such Letter of Credit at any time to an expiry date not later than the
LOC Required Expiration Date; provided, however, that the Issuing Bank
shall not permit any such extension if (A) the Issuing Bank has determined
that it would not be permitted, or would have no obligation, at such time
to issue such Letter of Credit in its revised form (as extended) under the
terms hereof, or (B) it has received notice (which may be by telephone or
in writing) on or before the day that is five Business Days before the
Non-Extension Notice Date (1) from the Administrative Agent that the
Required Revolving Lenders have elected not to permit such extension or (2)
from the Administrative Agent, any Revolving Lender or the Borrower that
one or more of the applicable conditions specified in Section 4.02 is not
then satisfied, and in each such case directing the Issuing Bank not to
permit such extension.
(iii) The Issuing Bank shall not be under any obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain the
Issuing Bank from issuing such Letter of Credit, or any law applicable
to the Issuing Bank or any request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction
over the Issuing Bank shall prohibit, or request that the Issuing Bank
refrain from, the issuance of letters of credit generally or such
Letter of Credit in particular or shall impose upon the Issuing Bank
with respect to such Letter of Credit any restriction, reserve or
capital requirement (for which the Issuing Bank is not otherwise
compensated hereunder)
28
not in effect on the Effective Date, or shall impose upon the Issuing
Bank any unreimbursed loss, cost or expense which was not applicable
on the Effective Date and which the Issuing Bank in good xxxxx xxxxx
material to it;
(B) the issuance of such Letter of Credit would violate one or
more policies of the Issuing Bank applicable to letters of credit
generally;
(C) except as otherwise agreed by the Administrative Agent and
the Issuing Bank, such Letter of Credit is in an initial stated amount
less than $250,000;
(D) such Letter of Credit is to be denominated in a currency
other than dollars;
(E) such Letter of Credit contains any provisions for automatic
reinstatement of the stated amount after any drawing thereunder; or
(F) a default of any Revolving Lender's obligations to fund under
Section 2.04(d) exists or any Revolving Lender has defaulted in its
obligation to fund Loans hereunder, unless the Issuing Bank has
entered into satisfactory arrangements with the Borrower or such
Lender to eliminate the Issuing Bank's risk with respect to such
Lender.
(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 Revolving Maturity Date (the "LOC Required
Expiration 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, irrevocably 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
29
Administrative Agent an amount equal to such LC Disbursement not later than
11:00 a.m., 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 9:00
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 11:00 a.m.,
New York City time, on the Business Day immediately following the day that the
Borrower receives such notice; 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 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
30
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 Letter of Credit comply with the terms
thereof. The parties hereto expressly agree that, in the absence of gross
negligence or willful 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 Revolving 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 this Agreement
31
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 Revolving 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 Revolving 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
the Required Revolving Lenders), 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.
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 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; and provided further that Term Loans
made to pay off and terminate the Existing Credit Agreement may be made, at the
Borrower's direction, directly to an account of the administrative agent of the
Existing Credit Agreement.
32
(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 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:
(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;
33
(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 applicable 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 Revolving Lenders
(in the case of any Revolving Borrowing) or at the request of the Required Term
Loan Lenders (in the case of any Term Borrowing), so notifies the Borrower,
then, so long as an Event of Default is continuing (x) no outstanding Revolving
Borrowing or Term Borrowing, as applicable, may be converted to or continued as
a Eurodollar Borrowing and (y) unless repaid, each Revolving Eurodollar
Borrowing or Term Eurodollar Borrowing, as applicable, 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 Term Loan Commitments shall terminate at 5:00
p.m., New York City time, on July 10, 2006 and (ii) the Revolving Commitments
shall terminate on the Revolving 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 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 Revolving 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
34
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 Revolving
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 Revolving Lender the then unpaid principal amount of each Revolving Loan
of such Lender on the Revolving Maturity Date and (ii) to the Administrative
Agent for the account of each Term Lender the then unpaid principal amount of
each 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 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).
SECTION 2.09. Amortization of Term Loans. (a) Subject to adjustment
pursuant to paragraph (c) of this Section, the Borrower shall repay Term
Borrowings on each date set forth below in the aggregate principal amount equal
to the product of (i) $750,000,000 multiplied by (ii) the percentage set forth
opposite such date:
35
Percentage
Date of original
---- -----------
September 30, 2006....... 0.25%
December 31, 2006........ 0.25%
March 31, 2007........... 0.25%
June 30, 2007............ 0.25%
September 30, 2007....... 0.25%
December 31, 2007........ 0.25%
March 31, 2008........... 0.25%
June 30, 2008............ 0.25%
September 30, 2008....... 0.25%
December 31, 2008........ 0.25%
March 31, 2009........... 0.25%
June 30, 2009............ 0.25%
September 30, 2009....... 0.25%
December 31, 2009........ 0.25%
March 31, 2010........... 0.25%
June 30, 2010............ 0.25%
September 30, 2010....... 0.25%
December 31, 2010........ 0.25%
March 31, 2011........... 0.25%
June 30, 2011............ 0.25%
September 30, 2011....... 0.25%
December 31, 2011........ 0.25%
March 31, 2012........... 0.25%
June 30, 2012............ 0.25%
September 30, 2012....... 23.50%
December 31, 2012........ 23.50%
March 31, 2013........... 23.50%
Term Loan Maturity Date.. 23.50%
(b) To the extent not previously paid, all Term Loans shall be due and
payable on the Term Loan Maturity Date.
(c) Any prepayment of a Term Borrowing shall be applied to reduce the
subsequent scheduled repayments of the Term Borrowings to be made pursuant to
this Section ratably.
(d) Prior to any repayment of any 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 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 Borrowings in accordance with paragraph (f) 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) In the event there exists any Excess Cash Flow at the end of any fiscal
year of the Borrower (commencing with the fiscal year ending December 31, 2006),
the Borrower shall prepay Borrowings in accordance with paragraph (f) below in
an amount equal to the product of such Excess Cash Flow for such fiscal year
multiplied by the applicable Excess Cash Flow Prepayment Percentage, which
amount shall be computed as of the end of each such fiscal year of the Borrower
and set forth in the certificate of Financial Officer delivered in connection
with the audited financial statements pursuant to Section 5.01, and paid not
later than the date of the delivery of such certificate.
(e) Prior to any optional prepayment of Borrowings under paragraph (a)
above, 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 (f) of this Section.
(f) 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
37
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 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. The amount of Net Proceeds or Excess Cash Flow
required to paid pursuant to Sections 2.10(c) and (d) shall be applied (i)
first, to repay Term Loans, until the outstanding principal amount of the Term
Loans is $0, (ii) second, to the repayment of the outstanding amount of
Revolving Loans until such outstanding principal amount is $0 (which repayments
shall also constitute the permanent reduction in like amount of the Revolving
Commitments by such amount), (iii) third, to cash collateralize the outstanding
amount of Letters of Credit (which repayments shall also constitute the
permanent reduction in like amount of the Revolving Commitments by such amount),
and (iv) fourth, to the extent any amount of such Net Proceeds or Excess Cash
Flow then remain after all Loans have been repaid and all Letters of Credit so
cash collateralized, the Revolving Commitments shall be permanently reduced by
such amount. 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 June
30, 2006; 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 set forth in the BOA Fee Letter on
the 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
38
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 June 30, 2006; 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 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) The Borrower agrees to pay a fee to each Term Loan Lender equal to 1%
of the outstanding Term Loans made by such Term Loan Lender in the event that
this Agreement is voluntarily amended to reduce the Applicable Rate applicable
to Term Loans prior to the first anniversary of the Agreement Date, other than
any such reduction occurring as a result of a refinancing of or increase in the
aggregate principal amount of the Term Loans.
(e) 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 (including any fee payable in connection with a Letter of
Credit) 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, the rate applicable to ABR Revolving
Loans as provided in paragraph (a) of this Section plus, at the request of the
Required Lenders, 2%.
(d) Upon the request of the Required Lenders, while any Event of Default
(other than as in (a) or (b) of Article VII) exists, the Borrower shall pay
interest on the principal amount of all outstanding Obligations hereunder at a
fluctuating interest rate per annum at all times equal to
39
the rate applicable to ABR Revolving Loans as provided in paragraph (a) of this
Section plus 2%.
(e) 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.
(f) 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 Bank of America's "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.
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.
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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 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
41
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. From and after the Agreement Date, 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 Term Loan on the date
specified in any notice delivered (or deemed delivered) pursuant hereto
(regardless of whether such notice may be revoked under Section 2.10(f) 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 plus the Applicable 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 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
42
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 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
43
immediately available funds, without set-off, defense, recoupment 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 office set forth
on Schedule 9.01, New York, New York, 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 (but in no event
later than the Revolving Maturity Date or the Term Loan Maturity Date, as
applicable), 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
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, Term Loans or participations in LC Disbursements
resulting in such Lender receiving payment in excess of its ratable amount in
accordance with its proportion of the aggregate amount of Revolving Loans, Term
Loans or participations in LC Disbursements, as applicable, and accrued interest
thereon, then such Lender receiving such excess payment shall purchase (for cash
at face value) participations in the Revolving Loans, Term Loans or
participations in LC Disbursements, as applicable, 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, Term Loans or
participations in LC Disbursements, as applicable; 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
44
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 applicable 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.
(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, or if any
Lender is subject to Section 9.02(c), 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 permissible under
Section 9.04 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
45
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, 2009, by notice to the Administrative Agent
(whereupon the Administrative Agent shall promptly deliver a copy to each of the
Lenders), request the addition of (collectively, the "Incremental Facilities") a
new tranche of term loans (an "Incremental Term Facility") or an increase in the
Revolving Commitments ("Incremental Revolving Commitments") or a combination
thereof; provided that (i) at the time of any such request and upon the
effectiveness of the Incremental Facility Amendment referred to below, no
Default or Event of Default shall exist, (ii) the Borrower shall be in
compliance with Sections 6.13, 6.14 and 6.16 determined on a pro forma basis
both before and after giving effect to such Incremental Facility (as if such
Incremental Facility had been outstanding on the last day of the most recent
fiscal quarter for testing compliance therewith), and (iii) all fees and
expenses owing to the Administrative Agent and the Lenders in respect of such
Incremental Facility shall have been paid (provided that the Administrative
Agent will consult with the Borrower before agreeing to any commitment or
upfront fees with the banks or other financial institutions providing such
Incremental Facility). The Incremental Facilities shall be in an aggregate
principal amount not exceeding (in the aggregate) $200,000,000, each Incremental
Term Facility shall be in an aggregate principal amount not less than
$50,000,000, and each of the Incremental Revolving Commitments shall be in an
aggregate principal amount not less than $10,000,000. Each Incremental Facility
(a) shall rank pari passu in right of payment and of security with the Revolving
Loans and the Term Loans, (b) in the case of an Incremental Term Facility, shall
not mature earlier than the Term Loan Maturity Date (but may, subject to clause
(c) below, have amortization and commitment reductions prior to such date), (c)
in the case of an Incremental Term Facility, shall have a weighted average life
that is not less than that of the Term Loans, and (d) in the case of an
Incremental Term Facility, for purposes of prepayments, shall be treated
substantially the same as (and in any event no more favorably than) the Term
Loans; provided that (x) the terms and conditions applicable to any Incremental
Facility maturing after the Term Loan Maturity Date may provide for material
additional or different financial or other covenants applicable only during
periods after the Term Loan Maturity Date, and (y) the Incremental Term Facility
may be priced differently than the Term 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 and, with respect only to Incremental Revolving Commitments, the
Issuing Bank (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 to
46
the extent (but only to the extent) necessary 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 (it being understood
that the representations and warranties made herein will first be made on the
Effective Date, and not on the Agreement Date should that date precede the
Effective Date) 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 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.
47
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, 2005, reported on by KPMG, independent public
accountants and (ii) as of and for the portion of the fiscal year ended March
31, 2006, 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.
(c) Since December 31, 2005, 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
48
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 Officers) 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 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
49
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 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, including without limitation, the effectiveness of the Private
Repurchase and the purchase of shares pursuant to the Public Tender Offer, (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
50
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 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 to participate in Letters of Credit 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.
51
(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.
(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 to participate
in Letters of Credit 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
52
June 30, 2006 (and, in the event such conditions are not so satisfied or waived,
the Commitments shall terminate at such time).
Without limiting the generality of the provisions of the fifth paragraph of
Article VIII, for purposes of determining compliance with the conditions
specified in this Section 4.01, each Lender that has signed this Agreement shall
be deemed to have consented to, approved or accepted or to be satisfied with,
each document or other matter required thereunder to be consented to or approved
by or acceptable or satisfactory to a Lender, unless the Administrative Agent
shall have received notice from such Lender prior to the proposed Effective Date
specifying its objection thereto.
SECTION 4.02. Each Credit Event. The obligation of each Lender to make a
Loan on the occasion of any Borrowing (excluding any Borrowing consisting solely
of a continuation or conversion of an outstanding 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 or Event of 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
From and after the Effective Date, 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) with respect to the end of each fiscal year of the Borrower, promptly
when available, and in any event within the Maximum Permitted Time, 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
53
previous fiscal year, and accompanied by (i) a report and opinion of a
Registered Public Accounting Firm, which report and opinion shall be prepared in
accordance with audit standards of the Public Company Accounting Oversight Board
and applicable Securities Laws and shall not be subject to any "going concern"
or like qualification or exception and shall be without any qualification or
exception as to the scope of such audit, and shall be to the effect that such
consolidated financial statements present fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, and (ii) (A) management's assessment of the effectiveness
of the Borrower's internal controls over financial reporting as of the end of
such fiscal year of the Borrower as required in accordance with Item 308 of SEC
Regulation S-K expressing a conclusion which contains no statement that there is
a material weakness in such internal controls, except for such material
weaknesses which (1) do not occur as a result of fraud of any magnitude on the
part of senior management and (2) do not result in the report and opinion
described in clause (i) above having any qualification or exception as a
consequence of such material weakness or the facts and circumstances giving rise
thereto, and (B) with respect to such fiscal year of the Borrower, an
attestation report (or reports) of a Registered Public Accounting Firm on
management's assessment of, and the opinion of the Registered Public Accounting
Firm independently assessing, the effectiveness of the Borrower's internal
controls over financial reporting in accordance with Item 308 of SEC Regulation
S-K, PCAOB Auditing Standard Xx. 0, xxx Xxxxxxx 000 xx Xxxxxxxx-Xxxxx and
expressing a conclusion which contains no statement that there is a material
weakness in such internal controls, except for such material weaknesses which
(1) do not occur as a result of fraud of any magnitude on the part of senior
management and (2) do not result in the report and opinion described in clause
(i) above having any qualification or exception as a consequence of such
material weakness or the facts and circumstances giving rise thereto (provided
that so long as the common stock of the Borrower is listed for trading on a
public stock exchange, the foregoing requirement as to the Borrower's
consolidated financial statements may be satisfied by the delivery of the
Borrower's annual report to stockholders and its annual report on Form 10-K
filled with the SEC containing such information);
(b) with respect to each of the first three fiscal quarters of each fiscal
year of the Borrower, promptly when available, and in any event within the
Maximum Permitted Time, 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 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 and
6.16 and (iii) stating whether any
54
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 statement of projected operations as of the end of such fiscal year
and setting forth the assumptions used for purposes of preparing such budget)
and, promptly when available, any significant revisions of such statement;
(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 SEC, 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.
Documents required to be delivered pursuant to Section 5.01 (a), (b) or (e)
(to the extent any such documents are included in materials otherwise filed with
the SEC) may be delivered electronically and if so delivered, shall be deemed to
have been delivered on the date (i) on which the Borrower posts such documents,
or provides a link thereto on the Borrower's website on the Internet at the
website address listed in Section 9.01; or (ii) on which such documents are
posted on the Borrower's behalf on an Internet or intranet website, if any, to
which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative
Agent); provided that: (i) the Borrower shall deliver paper copies of such
documents to the Administrative Agent or any Lender that requests the Borrower
to deliver such paper copies until a written request to cease delivering paper
copies is given by the Administrative Agent or such Lender and (ii) the Borrower
shall notify the Administrative Agent and each Lender (by telecopier or
electronic mail) of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies)
of such documents. Notwithstanding anything contained herein, in every instance
the Borrower shall be required to provide paper copies of the certificates of
Financial Officers of the Borrower required by Section 5.01(c) to the
Administrative Agent. Except for such certificates of Financial Officers of the
Borrower, the Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Borrower with
any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or
the Joint Lead Arrangers will make available to the Lenders and the Issuing Bank
materials and/or information provided by or on behalf of the Borrower hereunder
(collectively, "Borrower Materials") by posting the Borrower Materials on
IntraLinks or another similar electronic system (the "Platform") and (b) certain
of the Lenders may be "public-side" Lenders (i.e., Lenders that
55
do not wish to receive material non-public information with respect to the
Borrower or its securities) (each, a "Public Lender"). The Borrower hereby
agrees that (w) all Borrower Materials that are to be made available to Public
Lenders shall be clearly and conspicuously marked "PUBLIC" which, at a minimum,
shall mean that the word "PUBLIC" shall appear prominently on the first page
thereof; (x) by marking Borrower Materials "PUBLIC", the Borrower shall be
deemed to have authorized the Administrative Agent, the Joint Lead Arrangers,
the Issuing Bank and the Lenders to treat such Borrower Materials as not
containing any material non-public information with respect to the Borrower or
its securities for purposes of United States Federal and state securities laws
(provided, however, that to the extent such Borrower Materials constitute
Information, they shall be treated as set forth in Section 9.12); (y) all
Borrower Materials marked "PUBLIC" are permitted to be made available through a
portion of the Platform designated "Public Investor"; and (z) the Administrative
Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower
Materials that are not marked "PUBLIC" as being suitable only for posting on a
portion of the Platform not designated "Public Investor".
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;
(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 and its principal place of business, (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.
56
(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 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 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
57
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 (i) in the case of
Net Proceeds resulting from a Prepayment Event, Section 2.10(c) and (f) and (ii)
in all other cases, 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 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
Term Loans and Revolving Loans will be used (a) for payment of amounts owing
under the Existing Credit Agreement, including fees and expenses in connection
therewith, (b) to finance Restricted Payments permitted by Section 6.08 and the
payment of fees and expenses in connection therewith, (c) for the payment of
amounts payable as consideration for Permitted Acquisitions, and the payment of
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.
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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 and other documents,
and following the occurrence and during the continuance of any Event of Default,
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
(other than any real property or improvements thereto or any interest therein
which shall be subject to Section 5.15), 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.
SECTION 5.14. Hedging Agreements. Within ninety (90) days of the Effective
Date, the Borrower will enter into or continue, and shall maintain for not less
than two (2) fiscal years after the Effective Date, Hedging Agreements hedging
against interest rate fluctuations of Consolidated Funded Indebtedness on
customary terms and conditions and in an aggregate notional amount equal to not
less than 50% of the aggregate principal amount of Consolidated Funded
Indebtedness then in effect.
SECTION 5.15. Additional Collateral. (a) Upon the occurrence and
continuance of an Event of Default, promptly after a request by the
Administrative Agent or the Required Lenders therefor, the Borrower will, and
will cause each Subsidiary Loan Party to (i) execute and deliver counterparts of
a Mortgage with respect to each Mortgaged Property duly executed and delivered
by the record owner of such Mortgaged Property, (ii) deliver 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) deliver 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.
(b) Upon the occurrence and continuance of an Event of Default, promptly
after a request by the Administrative Agent or the Required Lenders therefor,
the Borrower will, and
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will cause each Subsidiary Loan Party to execute and deliver account control
agreements or blocked account agreements with respect to all deposit accounts,
including time, savings, passbook, or other similar accounts maintained with any
bank for the benefit of the Borrower or any Subsidiary Loan Party.
ARTICLE VI
NEGATIVE COVENANTS
From and after the Effective Date 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 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 (1) $10,000,000 at any time outstanding if either the Total Leverage
Ratio, measured prior to giving effect to such Indebtedness, or the Pro
Forma Total Leverage Ratio, measured after giving effect to such
Indebtedness, is greater than or equal to 6.50 to 1.00, and (2) $25,000,000
at any
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time outstanding if both the Total Leverage Ratio, measured prior to giving
effect to such Indebtedness, and the Pro Forma Total Leverage Ratio,
measured after giving effect to such Indebtedness, is less than 6.50 to
1.00;
(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) 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; and
(viii) other unsecured Indebtedness of the Borrower and the Subsidiary
Loan Parties in an aggregate principal amount not exceeding $75,000,000 at
any time outstanding; provided that (A) the Total Leverage Ratio, measured
prior to giving effect to such Indebtedness, and the Pro Forma Total
Leverage Ratio, measured after giving effect to such Indebtedness, is less
than 6.50 to 1.00, (B) such Indebtedness does not mature earlier than the
Term Loan Maturity Date and (C) such Indebtedness does not amortize prior
to the Term Loan Maturity Date.
(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 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
61
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;
provided that, notwithstanding the permitted Liens set forth in clauses (a)
through (e) above, the Borrower will not, and will not permit any Subsidiary
Loan Party to, create, incur, assume or permit to exist any Lien on any Equity
Interests of Cumulus Media Partners, LLC or any of its subsidiaries owned,
directly or indirectly, by 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
62
which the surviving entity is a Subsidiary 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;
63
(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; and
(k) other investments in an aggregate amount not exceeding (i) $25,000,000
if either the Total Leverage Ratio, measured prior to giving effect to such
investment, or the Pro Forma Total Leverage Ratio, measured after giving effect
to such investment, is greater than or equal to 6.50 to 1.00, and (ii)
$200,000,000 if both the Total Leverage Ratio, measured prior to giving effect
to such investment, and the Pro Forma Total Leverage Ratio, measured after
giving effect to such investment, is less than 6.50 to 1.00.
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:
(a) sales of inventory, used, obsolete, worn-out or surplus equipment and
Permitted Investments in the ordinary course of business;
64
(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, 2006, (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; and
(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;
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) and (e) 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 any 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 required pursuant to Section 5.14, (b) 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 (c) Hedging
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
65
(contingent or otherwise) to do so, except, to the extent that no Default has
occurred and is continuing or would result therefrom (other than any Restricted
Payment permitted under (iv) below to consummate the Public Tender Offer, with
respect to which the condition of the absence of a Default shall not apply):
(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 make Restricted Payments in cash consisting of
repurchases or redemptions of shares of the Borrower's common stock
(including the Public Tender Offer and the Private Repurchase) in an
aggregate amount on and after the Effective Date, determined at the time of
each such Restricted Payment, not to exceed: (a) $200,000,000 if the Total
Leverage Ratio, measured prior to giving effect to such Restricted Payment
and any Indebtedness incurred to finance such Restricted Payment, or the
Pro Forma Total Leverage Ratio, measured after giving effect to such
Restricted Payment and any Indebtedness incurred to finance such Restricted
Payment, is greater than or equal to 6.50 to 1.00, (b) $300,000,000 if the
Total Leverage Ratio, measured prior to giving effect to such Restricted
Payment and any Indebtedness incurred to finance such Restricted Payment,
and the Pro Forma Total Leverage Ratio, measured after giving effect to
such Restricted Payment and any Indebtedness incurred to finance such
Restricted Payment is less than 6.50 to 1.00 but greater than or equal to
4.50 to 1.00, and (c) an unlimited amount, if the Total Leverage Ratio,
measured prior to giving effect to such Restricted Payment and any
Indebtedness incurred to finance such Restricted Payment, or the Pro Forma
Total Leverage Ratio, measured after giving effect to such Restricted
Payment and any Indebtedness incurred to finance such Restricted Payment is
less than 4.50 to 1.00.
(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, cancellation 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;
(iii) refinancings of Indebtedness to the extent permitted by Section
6.01; and
66
(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.
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.
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
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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, (i) would not, in any material respect, adversely
affect the interests of the Lenders and (ii) would otherwise not be prohibited
hereunder.
SECTION 6.13. Consolidated Fixed Charge Coverage Ratio. The Borrower will
not permit as of the last day of any fiscal quarter the ratio of (a)
Consolidated EBITDA to (b) Consolidated Fixed Charges, in each case for any
period of four consecutive fiscal quarters, to be less than the ratio set forth
below opposite such period:
Period Ratio
------ -----
Effective Date through and including 1.10 to 1.00
March 31, 2007
April 1, 2007 and thereafter 1.20 to 1.00
SECTION 6.14. Total Leverage Ratio. The Borrower will not permit as of the
last day of any fiscal quarter the Total Leverage Ratio during any period set
forth below to exceed the ratio set forth below opposite such period:
Period Ratio
------ -----
Effective Date through and including 8.75 to 1.00
December 31, 2006
January 1, 2007 through and including 8.50 to 1.00
June 30, 2007
July 1, 2007 through and including 8.25 to 1.00
December 31, 2007
January 1, 2008 through and including 7.75 to 1.00
September 30, 2008
October 1, 2008 through and including 7.50 to 1.00
December 31, 2008
January 1, 2009 through and including 7.00 to 1.00
December 31, 2009
January 1, 2010 through and including 6.50 to 1.00
December 31, 2010
January 1, 2011 through and including 6.25 to 1.00
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December 31, 2011
January 1, 2012 and thereafter 6.00 to 1.00
SECTION 6.15. [Intentionally omitted.]
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)
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and (iv) the Borrower shall 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 apply to secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness;
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(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) (i) one or more judgments for the payment of money in an aggregate
amount in excess of $15,000,000 or (ii) one or more non-monetary judgments that
have, or could reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect, 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) solely as a result of the
Administrative Agent's failure to maintain possession of any stock certificates,
promissory notes or other instruments delivered to it under any Security
Document;
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(n) the loss, revocation or suspension of, or any material impairment in
the ability to use, any one or more FCC Licenses shall occur and be continuing
with respect to any Broadcast Asset of the Borrower or any Subsidiary generating
collective Broadcast Cash Flow equal to or greater than 10% of the total
Broadcast Cash Flow of the Borrower and the Subsidiary Loan Parties;
(o) a Change in Control shall occur; or
(p) any Loan Document, at any time after its execution and delivery and for
any reason other than as expressly permitted hereunder or thereunder or
satisfaction in full of all the Obligations, ceases to be in full force and
effect; or the Borrower, any of its Subsidiaries or any of their Affiliates
contests in any manner the validity or enforceability of any Loan Document; or
the Borrower, any of its Subsidiaries or any of their Affiliates denies that it
has any or further liability or obligation under any Loan Document, or purports
to revoke, terminate or rescind any Loan Document;
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. Other than the relevant
provisions relating to a successor Administrative Agent, the provisions of this
Article are solely for the benefit of the Administrative Agent, the Lenders and
the Issuing Bank and the Borrower shall not have rights as a third party
beneficiary of any of such provisions.
The Person serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it
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were not the Administrative Agent, and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its
individual capacity, and such Person and its Affiliates may accept deposits
from, lend money to, act as the financial adviser or in any other advisory
capacity for 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 and without any duty to account therefore to the Lenders.
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 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 or in the other Loan
Documents), provided that the Administrative Agent shall not be required to take
any action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document or
applicable law; 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, or as the Administrative
Agent shall believe in good faith to be necessary, under the circumstances as
provided in Section 9.02) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or 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 or the occurrence of any Default, (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 (including any electronic
message, Internet or intranet website posting or any other distribution)
believed by it to be genuine and to have been signed, sent or otherwise
authenticated 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. In
determining compliance with any condition hereunder to the making of a Loan, or
the issuance of a Letter of Credit, that by its terms must be
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fulfilled to the satisfaction of a Lender or the Issuing Bank, the
Administrative Agent may presume that such condition is satisfactory to such
Lender or the Issuing Bank unless the Administrative Agent shall have received
notice to the contrary from such Lender or the Issuing Bank prior to the making
of such Loan or the issuance of such Letter of Credit. 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 resignation, the Required Lenders shall have the right, with the
consent of the Borrower, to appoint a successor; provided that no such consent
of 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; provided that if the Administrative Agent
shall notify the Borrower and the Lenders that no qualifying Person has accepted
such appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan
Documents (except that in the case of any collateral security held by the
Administrative Agent on behalf of the Lenders or the Issuing Bank under any of
the Loan Documents, the retiring Administrative Agent shall continue to hold
such collateral security until such time as a successor Administrative Agent is
appointed) and (2) all payments, communications and determinations provided to
be made by, to or through the Administrative Agent shall instead be made by or
to each Lender and the Issuing Bank directly, until such time as the Required
Lenders appoint a successor Administrative Agent as provided for above in this
Section. 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 (if not already discharged therefrom as
provided above in this Section). 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
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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.
Any resignation by Bank of America as Administrative Agent pursuant to this
Section shall also constitute its resignation as Issuing Bank. Upon the
acceptance of a successor's appointment as Administrative Agent hereunder, (a)
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring Issuing Bank, (b) the retiring
Issuing Bank shall be discharged from all of their respective duties and
obligations hereunder or under the other Loan Documents, and (c) the successor
Issuing Bank shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other
arrangements satisfactory to the retiring Issuing Bank to effectively assume the
obligations of the retiring Issuing Bank with respect to such Letters of Credit.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related
Parties 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 or any of their
Related Parties 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.
In case of the pendency of any proceeding under any Federal, State or
foreign bankruptcy, insolvency, receivership or similar law or any other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or LC Disbursement shall then
be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on
the Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(i) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, LC Disbursements and all
other Obligations that are owing and unpaid and to file such other documents as
may be necessary or advisable in order to have the claims of the Lenders, the
Issuing Bank and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders,
the Issuing Bank and the Administrative Agent and their respective agents and
counsel and all other
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amounts due the Lenders, the Issuing Bank and the Administrative Agent under
Sections 2.11 and 9.03) allowed in such judicial proceeding; and
(ii) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and the Issuing Bank to make such payments to the Administrative
Agent and, in the event that the Administrative Agent shall consent to the
making of such payments directly to the Lenders and the Issuing Bank, to pay to
the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its agents
and counsel, and any other amounts due the Administrative Agent under Sections
2.11 and 9.03.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender or
the Issuing Bank any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Lender or the Issuing
Bank to authorize the Administrative Agent to vote in respect of the claim of
any Lender or the Issuing Bank in any such proceeding.
The Lenders and the Issuing Bank irrevocably authorize the Administrative
Agent, at its option and in its discretion:
(i) to release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Commitments and payment in full of all Obligations (other than contingent
indemnification obligations) and the expiration or termination of all Letters of
Credit, (ii) that is sold or to be sold as part of or in connection with any
sale permitted hereunder or under any other Loan Document, or (iii) subject to
Section 9.02, if approved, authorized or ratified in writing by the Required
Lenders;
(ii) to subordinate any Lien on any property granted to or held by the
Administrative Agent under any Loan Document to the holder of any Lien on such
property that is permitted by Section 6.02(e); and
(iii) to release any Subsidiary Loan Party from its obligations under the
Collateral Agreement if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders
will confirm in writing the Administrative Agent's authority to release or
subordinate its interest in particular types or items of property, or to release
any Subsidiary Loan Party from its obligations under the Collateral Agreement
pursuant to this Article VIII.
ARTICLE IX
MISCELLANEOUS
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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 overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(i) if to the Borrower, the Administrative Agent or the Issuing Bank,
to its address (or telecopy number) set forth on Schedule 9.01.
(ii) 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.
Notices and other communications to the Lenders and the Issuing Bank
hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent, provided that the foregoing shall not apply to any notice
of service of process under Section 9.09 or to notices to any Lender or the
Issuing Bank pursuant to Article II if such Lender or the Issuing Bank, as
applicable, has notified the Administrative Agent that it is incapable of
receiving notices under such Article by electronic. The Administrative Agent or
the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be
limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
Notwithstanding the foregoing, any notice from the Administrative Agent,
the Required Lenders or any Lender to any Loan Party stating that (a) any
Obligations are being accelerated, or (b) the intention of any of them to
exercise remedies under any Loan Document after the occurrence of an Event of
Default, shall be made in accordance with the first paragraph of this Section
9.01.
THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." THE AGENT PARTIES (AS
DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER
MATERIALS OR THE ADEQUACY OF THE
77
PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE
DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR
THE PLATFORM. In no event shall the Administrative Agent or any of its Related
Parties (collectively, the "Agent Parties") have any liability to the Borrower,
any Lender, the Issuing Bank or any other Person for losses, claims, damages,
liabilities or expenses of any kind (whether in tort, contract or otherwise)
arising out of the Borrower's or the Administrative Agent's transmission of
Borrower Materials through the Internet, except to the extent that such losses,
claims, damages, liabilities or expenses are determined by a court of competent
jurisdiction by a final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Agent Party; provided, however,
that in no event shall any Agent Party have any liability to the Borrower, any
Lender, the Issuing Bank or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).
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 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) waive any condition set forth in Section 4.01
or permit any Interest Period in excess of six months without the written
consent of each Lender; (ii) extend or increase the Commitment of any Lender (or
reinstate any Commitment terminated pursuant to Article VII) without the written
consent of such Lender, (iii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees (subject
to (C) below) payable hereunder, without the written consent of each Lender
directly affected thereby;
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provided, however, that (1) only the consent of the Required Term Lenders shall
be necessary to amend the amount of the default rate set forth in Section
2.12(c) due to any Term Lender, (2) only the consent of the Required Revolving
Lenders shall be necessary to amend the amount of the default rate set forth in
Section 2.12(c) due to any Revolving Lender (including waiving any obligation of
the Borrower to pay interest or fees in respect of Letters of Credit at the
default rate then in effect) and (3) only the consent of the Required Lenders
shall be necessary to amend any financial covenant hereunder or any defined term
used therein (provided that if the effect of such amendment would be to reduce
the rate of interest on any Revolving Loan or LC Disbursement or to reduce any
fee payable to the Revolving Lenders hereunder, the consent, and only the
consent, of the Required Revolving Lenders shall be necessary); (iv) postpone
the maturity of any Loan, or any scheduled date of payment of the principal
amount of any 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 directly affected thereby, (v)(i)
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 Lender or (ii)
change the last sentence of Section 2.07(c) in a manner that would alter the pro
rata sharing of commitment reductions required thereby, without the written
consent of each Revolving Lender, (vi) change any of the provisions of this
Section or the percentage set forth in the definition of "Required Lenders",
"Required Revolving Lenders", "Required Term Loan 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 Revolving Lender, Term Loan Lender
or such other Lender of such Class, as the case may be), (vii) 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, (viii)
release all or substantially all of the Collateral from the Liens of the
Security Documents, without the written consent of each Lender or (ix) 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, or the assignment
rights of such 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, (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, (C) no amendment, waiver or
consent which has the effect of enabling the Borrower to satisfy any condition
to a Borrowing contained in Section 4.02 hereof which, but for such amendment,
waiver or consent would not be satisfied, shall be effective to require the
Revolving Lenders or the Issuing Bank to make any additional Revolving Loan or
to issue any additional or renew any existing Letter of Credit, unless and until
the
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Required Revolving Lenders (or, if applicable, all Revolving Lenders) shall have
approved such amendment, waiver or consent, and (D) only the consent of the
Required Revolving Lenders shall be necessary to amend, modify or waive any
provision of this Agreement or any other Loan Document concerning the issuance
and repayments of Letters of Credit (including, without limitation, the maximum
amount of LC Exposure set forth in Section 2.04(b)).
(c) If any Lender does not consent to a proposed amendment, waiver, consent
or release with respect to any Loan Document that requires the consent of such
Lender and that has been approved by the Required Lenders, the Borrower may
replace such non-consenting Lender in accordance with Section 2.18(b); provided
that (i) such amendment, waiver, consent or release can be effected as a result
of the assignment contemplated by such Section 2.18(b) (together with all other
such assignments required by the Borrower to be made pursuant to this
paragraph), (ii) such replacement Lender approves such proposed amendment,
waiver, consent or release and (iii) the Borrower or such replacement Lender
shall pay all processing and recordation fees in connection with such
replacement.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. From and at all times
after the Agreement Date:
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses
actually 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, negotiation, execution, delivery 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 actually 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 actually 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 (and any
sub-agent thereof), 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 by any third party or by the Borrower or any other Loan Party
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 or, in the case of the Administrative Agent
(and any sub-agent thereof) and its Related Parties only, the administration of
this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit
or the use or
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proposed 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 actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory whether brought by a third party or by the
Borrower or any other Loan Party and regardless of whether any Indemnitee is a
party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN
PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE;
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 nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee.
(c) To the extent that the Borrower fails to indefeasibly pay any amount
required to be paid by it to the Administrative Agent (or any sub-agent
thereof), the Issuing Bank or any Related Party under paragraph (a) or (b) of
this Section, each Lender severally agrees to pay to the Administrative Agent
(or any such sub-agent), the Issuing Bank or the Related Party, 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 any such sub-agent), the Issuing Bank in
its capacity as such or against any Related Party of any of the foregoing acting
for the Administrative Agent (or any such sub-agent) or Issuing Bank in
connection with such capacity. 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 Term Loans and unused Commitments at the time; provided
that, for purposes of indemnifying the Issuing Bank or its Related Party
hereunder, a Lender's "pro rata share" shall be determined based upon its share
of the sum of total Revolving Exposures and unused Revolving Commitments.
(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.
No Indemnitee referred to in subsection (b) above shall be liable for any
damages arising from the use by unintended recipients of any information or
other materials distributed to such unintended recipients by such Indemnitee
through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby other than for direct or actual
damages resulting from the gross negligence of willful misconduct of such
Indemnitee as determined by a final and nonappealable judgment of a court of
competent jurisdiction.
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(e) All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the resignation
of the Administrative Agent and the Issuing Bank, the replacement of any Lender,
the termination of the Commitments and the repayment, satisfaction or discharge
of all the other Obligations.
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 the Administrative Agent and 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 (and any other
attempted assignment or transfer by any Lender shall be null and void). 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 or delayed) of:
(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 Term Loan to a Lender, an Affiliate of a Lender or an Approved
Fund; and
(C) in the case of an assignment that increases the obligation of
the assignee to participate in exposure under one or more Letters of
Credit (whether or not then outstanding), 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 (in either of which
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case no minimum amount need be assigned), the aggregate amount of the
Commitment (which for this purpose includes Loans outstanding
hereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the 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 or, if "Trade Date" is specified in the
Assignment and Assumption, as the Trade Date), unless each of the
Borrower and the Administrative Agent otherwise consents (each such
consent not to be unreasonably withheld or delayed), shall not be less
than $1,000,000; provided that no such consent of the Borrower shall
be required if an Event of Default has occurred and is continuing;
provided, however, that concurrent assignments to members of an
Assignee Group and concurrent assignments from members of an Assignee
Group to a single assignee (or to an assignee and members of its
Assignee Group) will be treated as a single assignment for purposes of
determining whether such minimum amount has been met.
(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 in the amount, if any, required as set
forth in Schedule 9.04; provided, however, that the Administrative
Agent may, in its sole discretion, elect to waive such processing and
recordation fee in the case of any assignment;
(D) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire;
(E) no such assignment shall be made to the Borrower or any of
the Borrower's Affiliates or Subsidiaries; and
(F) no such assignment shall be made to a natural person.
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 (or will be) engaged in making, purchasing, holding or
investing in commercial loans and similar extensions of credit in the
ordinary course and that is administered 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
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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 with respect to facts and
circumstances occurring prior to the effective date of such assignment).
Upon request, the Borrower (at its expense) shall execute and deliver a
promissory note to the assignee Lender. 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.
(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 (other than a natural person or the Borrower or any of
the Borrower's Affiliates or Subsidiaries) (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 (including such Lender's participations
in LC Disbursements) 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
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
(ii), (iii), (iv) or (v) 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
84
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.
(d) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement or any Note issued hereunder
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.
(e) The words "execution," "signed," "signature," and words of like import
in any Assignment and Assumption shall be deemed to include electronic
signatures or the keeping of records in electronic form, each of which shall be
of the same legal effect, validity or enforceability as a manually executed
signature or the use of a paper-based recordkeeping system, as the case may be,
to the extent and as provided for in any applicable law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.
(f) Notwithstanding anything to the contrary contained herein, if at any
time Bank of America assigns all of its Commitment and Loans pursuant to
subsection (b) above, Bank of America may, upon 30 days' notice to the Borrower
and the Lenders, resign as Issuing Bank. In the event of any such resignation as
Issuing Bank, the Borrower shall be entitled to appoint from among the Lenders a
successor Issuing Bank hereunder; provided, however, that no failure by the
Borrower to appoint any such successor shall affect the resignation of Bank of
America as Issuing Bank. If Bank of America resigns as Issuing Bank, it shall
retain all the rights, powers, privileges and duties of the Issuing Bank
hereunder with respect to all Letters of Credit outstanding as of the effective
date of its resignation as Issuing Bank and all LC Disbursements with respect
thereto (including the right to require the Lenders to make Alternate Base Rate
Loans or fund risk participations in Letters of Credit pursuant to Section
2.04(d)). Upon the
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appointment of a successor Issuing Bank, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the
retiring Issuing Bank, and (b) the successor Issuing Bank shall issue letters of
credit in substitution for the Letters of Credit, if any, outstanding at the
time of such successor or make other arrangements satisfactory to Bank of
America to effectively assume the obligations of Bank of America with respect to
such Letters of Credit.
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 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 (including as a result of the Agreement Date occurring
without the occurrence of the Effective Date, to the extent applicable to such
provisions), 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.
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
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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 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 written 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.
87
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 (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees, trustees 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
pledgee referred to in Section 9.04(d) or 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.
88
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.
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. No Advisory or Fiduciary Responsibility. In connection with
all aspects of each transaction contemplated hereby, the Borrower acknowledges
and agrees that: (i) the credit facilities provided for hereunder and any
related arranging or other services in connection therewith (including in
connection with any amendment, waiver or other modification hereof or of any
other Loan Document) are an arm's-length commercial transaction between the
Borrower and its Affiliates, on the one hand, and the Administrative Agent and
the Joint Lead Arrangers, on the other hand, the Borrower is capable of
evaluating and understanding and understands and accepts the terms, risks and
conditions of the transactions contemplated hereby and by the other Loan
Documents (including any amendment, waiver or other modification thereof or
thereof); (ii) in connection with the process leading to such transaction, the
Administrative Agent and each Joint Lead Arranger each is and has been acting
solely as a principal and is not the financial advisor, agent or fiduciary for
the Borrower or any of its Affiliates, stockholders, creditors or employees or
any other Person; (iii) neither the Administrative Agent nor any Joint Lead
Arranger has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of the Borrower with respect to any of the transactions
contemplated hereby or the process leading thereto, including with respect to
any amendment, waiver or other modification hereof or of any other Loan Document
(irrespective of whether the Administrative Agent or any Joint Lead Arranger has
advised or is currently advising the Borrower or any of its Affiliates on other
matters) and neither the Administrative Agent nor any Joint Lead Arranger has
any obligation to the Borrower or any of its Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth
herein and in the other Loan Documents; (iv) the Administrative Agent and the
Joint Lead Arrangers and their respective Affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the
Borrower and its Affiliates, and neither the Administrative Agent nor any Joint
Lead Arranger has any obligation to disclose any of such interests by virtue of
any advisory, agency or fiduciary relationship; and (v) the Administrative Agent
and the Joint Lead Arrangers have not provided and will not provide any legal,
accounting, regulatory or tax advice with respect to any of the transactions
contemplated hereby (including any amendment, waiver or other modification
hereof or of any other Loan Document) and the Borrower has consulted its own
legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate. The Borrower hereby waives and releases, to the fullest extent
permitted by law, any claims that it may have against the Administrative Agent
and the Joint Lead Arrangers with respect to any breach or alleged breach of
agency or fiduciary duty.
89
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers or representatives thereunto duly
authorized, as of the date first written above.
CUMULUS MEDIA INC.
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: CFO
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Xxxxxxxxxxx X. Xxx
-------------------------------------------------
Name: Xxxxxxxxxxx X. Xxx
Title: Vice President
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxxxxxxxx X. Xxx
-------------------------------------------------
Name: Xxxxxxxxxxx X. Xxx
Title: Vice President
SUMITOMO MITSUI BANKING
CORPORATION, as a Lender
By: /s/ Xxx X. Xxxxxxxxx
-------------------------------------------------
Name: Xxx X. Xxxxxxxxx
Title: Joint General Manager
ING CAPITAL LLC, as a Lender
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
CUMULUS CREDIT AGREEMENT
Signature Page
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEEBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH, as a
Lender
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Director
U.S. BANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
WACHOVIA BANK, NATIONAL
ASSOCIATION, as a Lender
By: /s/ Xxxx Xxxxx
-------------------------------------------------
Name: Xxxx Xxxxx
Title: Director
CALYON, NEW YORK BRANCH, as a Lender
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
By: /s/ Xxxx XxXxxxxxx
-------------------------------------------------
Name: Xxxx XxXxxxxxx
Title: Managing Director
CUMULUS CREDIT AGREEMENT
Signature Page
THE ROYAL BANK OF SCOTLAND PLC, as a
Lender
By: /s/ Xxxxxxx Xxxxxxxxxx
-------------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Managing Director
SOCIETE GENERALE, as a Lender
By: /s/ Xxxxxx Xxxxxx
-------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
CIT LENDING SERVICES CORPORATION, as a Lender
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
THE BANK OF NEW YORK, as a Lender
By: /s/ Xxxxx Xxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
ROYAL BANK OF CANADA, as a Lender
By: /s/ Xxxx Xxxxxxx
-------------------------------------------------
Name: Xxxx Xxxxxxx
Title: Authorized Signatory
CUMULUS CREDIT AGREEMENT
Signature Page
