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Exhibit 4(j)
CREDIT AGREEMENT
DATED AS OF NOVEMBER 14, 1997
AMONG
REGENT COMMUNICATIONS, INC.,
AS BORROWER,
THE LENDERS LISTED HEREIN,
AS LENDERS,
GENERAL ELECTRIC CAPITAL CORPORATION,
AS DOCUMENTATION AGENT,
AND
BANK OF MONTREAL, CHICAGO BRANCH,
AS AGENT
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REGENT COMMUNICATIONS, INC.
CREDIT AGREEMENT
TABLE OF CONTENTS
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SECTION 1.
DEFINITIONS
1.1 Certain Defined Terms................................................................ 2
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations
Under Agreement...................................................................... 31
1.3 Other Definitional Provisions........................................................ 31
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments; Making of Loans; Notes.................................................. 31
2.2 Interest on the Loans................................................................ 34
2.3 Fees................................................................................. 38
2.4 Repayments, Prepayments and Reductions in Revolving Loan
Commitments; General Provisions Regarding Payments................................... 39
2.5 Use of Proceeds...................................................................... 45
2.6 Special Provisions Governing LIBOR Rate Loans........................................ 45
2.7 Increased Costs; Taxes; Capital Adequacy............................................. 47
2.8 Obligation of Lenders and Issuing Lender to Mitigate................................. 51
2.9 Affected Lenders..................................................................... 52
2.10 Guaranties of and Security for the Obligations....................................... 53
SECTION 3.
LETTERS OF CREDIT
3.1 Issuance of Letters of Credit and Lenders' Purchase of Participations
Therein.............................................................................. 54
3.2 Letter of Credit Fees................................................................ 56
3.3 Drawings and Reimbursement of Amounts Drawn Under Letters of
Credit............................................................................... 57
3.4 Obligations Absolute................................................................. 59
3.5 Indemnification; Nature of Issuing Lender's Duties................................... 60
3.6 Increased Costs and Taxes Relating to Letters of Credit.............................. 61
SECTION 4.
CONDITIONS TO LOANS AND LETTERS OF CREDIT
4.1 Conditions to Initial Letters of Credit.............................................. 62
4.2 Conditions to Initial Revolving Loans................................................ 64
4.3 Conditions to Permitted Acquisitions................................................. 68
4.4 Conditions to All Loans.............................................................. 72
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4.5 Conditions to Letters of Credit...................................................... 74
SECTION 5.
COMPANY'S REPRESENTATIONS AND WARRANTIES
5.1 Organization, Powers, Qualification, Good Standing, Business and
Subsidiaries......................................................................... 74
5.2 Authorization of Borrowing, etc...................................................... 77
5.3 Financial Condition.................................................................. 78
5.4 No Material Adverse Change; No Restricted Junior Payments............................ 78
5.5 Title to Properties; Liens........................................................... 78
5.6 Litigation; Adverse Facts............................................................ 79
5.7 Payment of Taxes..................................................................... 79
5.8 Performance of Agreements; Materially Adverse Agreements............................. 79
5.9 Governmental Regulation.............................................................. 80
5.10 Securities Activities................................................................ 80
5.11 Employee Benefit Plans............................................................... 80
5.12 Certain Fees......................................................................... 80
5.13 Environmental Protection............................................................. 81
5.14 Employee Matters..................................................................... 82
5.15 Solvency............................................................................. 82
5.17 Intellectual Property................................................................ 82
5.18 Disclosure........................................................................... 83
SECTION 6.
COMPANY'S AFFIRMATIVE COVENANTS
6.1 Financial Statements and Other Reports............................................... 83
6.2 Corporate Existence, etc............................................................. 88
6.3 Payment of Taxes and Claims; Tax Consolidation....................................... 88
6.4 Maintenance of Properties; Insurance................................................. 89
6.5 Inspection; Lender Meeting........................................................... 89
6.6 Compliance with Laws, etc............................................................ 90
6.7 Environmental Disclosure and Inspection.............................................. 90
6.8 Company's Remedial Action Regarding Hazardous Materials.............................. 91
6.9 Interest Rate Protection............................................................. 92
6.10 Compliance with Related Documents.................................................... 92
6.11 Transfer of FCC Licenses to License Subs............................................. 92
6.12 Sale of the San Diego Station, the Lexington Station and the Charleston
Stations............................................................................. 92
SECTION 7.
COMPANY'S NEGATIVE COVENANTS
7.1 Indebtedness......................................................................... 93
7.2 Liens and Related Matters............................................................ 94
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7.3 Investments; Joint Ventures.......................................................... 95
7.4 Contingent Obligations............................................................... 96
7.5 Restricted Junior Payments........................................................... 96
7.6 Financial Covenants.................................................................. 97
7.7 Restriction on Fundamental Changes; Asset Sales and Acquisitions..................... 98
7.8 Consolidated Capital Expenditures.................................................... 99
7.9 Sales and Lease-Backs................................................................ 99
7.10 Sale or Discount of Receivables...................................................... 99
7.11 Transactions with Shareholders and Affiliates........................................ 99
7.12 Disposal of Subsidiary Stock.........................................................100
7.13 Conduct of Business..................................................................100
7.14 Amendments or Waivers of Related Documents and Charter Documents.....................100
7.15 Fiscal Year..........................................................................101
7.16 Overhead.............................................................................101
SECTION 8.
EVENTS OF DEFAULT
8.1 Failure to Make Payments When Due....................................................102
8.2 Default in Other Agreements..........................................................102
8.3 Breach of Certain Covenants..........................................................102
8.4 Breach of Warranty...................................................................102
8.5 Other Defaults Under Loan Documents..................................................103
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc.................................103
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc...................................103
8.8 Judgments and Attachments............................................................104
8.9 Dissolution..........................................................................104
8.10 Employee Benefit Plans...............................................................104
8.11 Change in Control....................................................................104
8.12 Failure of Security or Guaranty......................................................104
8.13 FCC Licenses.........................................................................104
8.14 Acquisition FCC Consent..............................................................105
8.15 Material Adverse Effect..............................................................105
8.16 Faircom and Park Lane Acquisitions...................................................105
8.17 Letters of Credit....................................................................105
SECTION 9.
AGENT; DOCUMENTATION AGENT
9.1 Appointment..........................................................................106
9.2 Powers; General Immunity.............................................................106
9.3 Representations and Warranties; No Responsibility For Appraisal of
Creditworthiness.....................................................................108
9.4 Right to Indemnity...................................................................108
9.5 Successor Agent......................................................................109
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9.6 Security Documents, Etc..............................................................109
9.7 Appointment of Separate Agent........................................................110
SECTION 10.
MISCELLANEOUS
10.1 Assignments and Participations in Loans and Letters of Credit........................110
10.2 Expenses.............................................................................113
10.3 Indemnity............................................................................113
10.4 Set-Off; Security Interest in Deposit Accounts.......................................114
10.5 Ratable Sharing......................................................................115
10.6 Amendments and Waivers...............................................................115
10.7 Independence of Covenants............................................................116
10.8 Notices..............................................................................116
10.9 Survival of Representations, Warranties and Agreements...............................117
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative................................117
10.11 Marshalling; Payments Set Aside......................................................117
10.12 Severability.........................................................................117
10.13 Obligations Several; Independent Nature of Lenders' Rights...........................118
10.14 Headings.............................................................................118
10.15 Applicable Law.......................................................................118
10.16 Successors and Assigns...............................................................118
10.17 Consent to Jurisdiction and Service of Process.......................................118
10.18 Waiver of Jury Trial.................................................................119
10.19 Confidentiality......................................................................119
10.20 Counterparts; Effectiveness..........................................................120
Signature pages S-1
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EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
IV FORM OF REVOLVING NOTE
V [RESERVED]
VI FORM OF COMPLIANCE CERTIFICATE
VII-A FORMS OF OPINION OF XXXXXXX & XXXX
VII-B FORM OF OPINION OF XXXXXX & XXXXXXX (Effective Date)
VII-C FORM OF OPINION OF LOCAL COUNSEL
VII-D FORM OF OPINION OF XXXXXX & XXXXXXX (Permitted Acquisitions)
VIII FORM OF OPINION OF O'MELVENY & XXXXX LLP
IX FORM OF SUBSIDIARY GUARANTY
X FORM OF PLEDGE AND SECURITY AGREEMENT
XI FORM OF FINANCIAL CONDITION CERTIFICATE
XII FORM OF OPERATING AGREEMENT
XIII FORM OF MORTGAGE
XIV FORM OF CONSENT LETTER
XV FORM OF XXXXXX GUARANTY
XVI FORM OF COLLATERAL ACCOUNT AGREEMENT
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SCHEDULES
1.1A STATIONS
1.1B EXISTING DEBT
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
5.1D SUBSIDIARIES OF COMPANY
5.1E FCC LICENSES AND STATION MATTERS
5.1E(v) LEASE MANAGEMENT AGREEMENTS
5.1F REAL PROPERTY INTERESTS
5.1G COLLATERAL MATTERS
5.4 RESTRICTED JUNIOR PAYMENTS
5.7 TAX OBLIGATIONS
5.12 BROKER'S FEE
5.13 ENVIRONMENTAL MATTERS
5.16 INSURANCE
7.1 CERTAIN PERMITTED SECURED PURCHASE MONEY INDEBTEDNESS
7.3 PERMITTED INVESTMENTS
7.4 CONTINGENT OBLIGATIONS
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CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of November 14, 1997 and entered
into by and among REGENT COMMUNICATIONS, INC., a Delaware corporation
("COMPANY"), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF
(each individually referred to herein as a "LENDER" and collectively as
"LENDERS"), GENERAL ELECTRIC CAPITAL CORPORATION, as documentation agent (in
such capacity, "DOCUMENTATION AGENT") and BANK OF MONTREAL, CHICAGO BRANCH
("BANK OF MONTREAL"), as agent for Lenders (in such capacity, "AGENT").
R E C I T A L S
- - - - - - - -
WHEREAS, Company owns all of the issued and outstanding
capital stock of (i) Regent Broadcasting of San Diego, Inc., a Delaware
corporation ("REGENT OF SAN DIEGO"), which owns and operates the radio station
set forth opposite its name on SCHEDULE 1.1A annexed hereto and (ii) Regent
Broadcasting of Lexington, Inc., a Delaware corporation ("REGENT OF
LEXINGTON"), which owns and operates the radio station set forth opposite its
name on SCHEDULE 1.1A;
WHEREAS, Regent of San Diego owns all of the issued and
outstanding capital stock of Regent Licensee of San Diego, Inc., a Delaware
corporation ("SAN DIEGO LICENSE SUB"), which owns the FCC Licenses for the
radio station set forth opposite its name on Schedule 1.1 A;
WHEREAS, Regent of Lexington owns all of the issued and
outstanding capital stock of Regent Licensee of Lexington, Inc., a Delaware
corporation ("LEXINGTON LICENSE SUB"), which owns the FCC Licenses for the
radio station set forth opposite its name on Schedule 1.1A;
WHEREAS, after the Closing Date, in accordance with this
Agreement, Company has agreed to acquire from the Sellers the radio stations
set forth under Part II on SCHEDULE 1.1A, each of which shall be owned and
operated by the Operating Sub (as defined below) set forth opposite its name on
SCHEDULE 1.1A;
WHEREAS, after the Closing Date, in accordance with this
Agreement, the FCC Licenses for the Acquired Stations (as defined below) shall
be owned by the License Sub (as
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defined below) set forth opposite its name under Part II on SCHEDULE 1.1A
pursuant to an operating agreement between such License Sub and the Operating
Sub set forth opposite its name on SCHEDULE 1.1A;
WHEREAS, Company desires that Lenders extend certain credit
facilities to Company and its Subsidiaries for (i) the acquisition of certain
radio stations, from time to time, to the extent permitted hereunder, (ii) the
payment of fees and expenses hereunder and fees and expenses related to the
foregoing transactions, and (iii) working capital purposes;
WHEREAS, the Subsidiaries of Company desire to guarantee the
Obligations pursuant to the Subsidiary Guaranty;
WHEREAS, Company and its Subsidiaries desire to secure their
respective Obligations by granting to Agent, on behalf and for the ratable
benefit of Lenders, First Priority Liens (subject to Permitted Liens) in all of
their respective assets (to the full extent permitted by law) pursuant to the
Pledge and Security Agreement and the other Security Documents;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, Company, Lenders, and
Agent agree as follows:
SECTION 1.
DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
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The following terms used in this Agreement shall have the following
meanings:
"ACQUIRED STATIONS" means the radio stations to be acquired
on any Permitted Acquisition Closing Date.
"ACQUISITION" means a Permitted Acquisition.
"ACQUISITION DOCUMENTS" means collectively, the Permitted
Acquisition Documents.
"ACQUISITION PROCEEDS" means the proceeds of any additional
Company Common Stock, Company Preferred Stock or any other equity
securities issued in accordance with this Agreement that are used to
pay all or any portion of the consideration for the consummation of a
Permitted Acquisition
"ACQUISITION FCC CONSENT" means the initial written action or
actions by the FCC approving the assignment of the FCC Licenses for
each Station to be acquired as part of an Acquisition to the
respective Operating Subs and License Subs in the manner contemplated
by the applicable Acquisition Documents including, in the event such
FCC
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Licenses are not acquired directly by such License Subs, the
assignment of such FCC Licenses for each such Station by the
applicable Operating Subs to the respective License Sub, all in form
and substance satisfactory to Agent and Requisite Lenders.
"ADJUSTED CONSOLIDATED OPERATING CASH FLOW" means
Consolidated Operating Cash Flow; PROVIDED that for any relevant
period through June 30, 1998, to the extent that the operating cash
flow on a trailing 12 month basis relating to the Flagstaff and
Kingman Stations (on a combined basis in accordance with GAAP) after
the Park Lane Acquisition Date included in the calculation of
Consolidated Operating Cash Flow is negative, such negative combined
operating cash flow for any such period shall be deemed to be zero for
purposes of calculating Adjusted Consolidated Operating Cash Flow
hereunder; PROVIDED, FURTHER, that (i) no more than $300,000 in the
aggregate of negative combined operating cash flow for all such
Stations may be excluded in any such period and (ii) the Company shall
not exclude losses at any such Stations (and there shall be no
adjustments to Consolidated Operating Cash Flow with respect to any
such losses for purposes of calculating Adjusted Consolidated
Operating Cash Flow hereunder) to the extent any such losses are
incurred after the Park Lane Acquisition Date.
"ADJUSTED LIBOR RATE" means, for any Interest Rate
Determination Date with respect to an Interest Period for a LIBOR Rate
Loan, the rate per annum obtained by DIVIDING (i) the arithmetic mean
(rounded upward to the nearest 1/16 of one percent) of the offered
rates for Dollar deposits with maturities comparable to the Interest
Period for which such Adjusted LIBOR Rate will apply, appearing on
Telerate Page 3750 at approximately 11:00 A.M. (London time) on such
Interest Rate Determination Date, as determined by the Agent BY (ii) a
percentage equal to 100% MINUS the stated maximum rate of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) applicable on such Interest
Rate Determination Date to any member bank of the Federal Reserve
System in respect of "Eurocurrency liabilities" as defined in
Regulation D (or any successor category of liabilities under
Regulation D).
"AFFECTED LENDER" has the meaning assigned to that term in
subsection 2.6C.
"AFFILIATE", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common
control with, that Person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as
applied to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting
securities or by contract or otherwise.
"AGENT" has the meaning assigned to that term in the
introduction to this Agreement and also means and includes any
successor Agent appointed pursuant to subsection 9.5.
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"AGREEMENT" means this Credit Agreement dated as of November
14, 1997.
"AGGREGATE AMOUNTS DUE" has the meaning assigned to that term
in subsection 10.5.
"APPLICABLE MARGIN" means the percentage determined by
reference to subsection 2.2A.
"ASSET SALE" means the sale by any Credit Party to any Person
other than another Credit Party of (i) any of the stock of any of
Company's Subsidiaries, (ii) substantially all of the assets of any
division or line of business of Company or any of its Subsidiaries, or
(iii) any other assets (whether tangible or intangible) of Company or
any of its Subsidiaries outside of the ordinary course of business.
"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy", as now and hereafter in effect, or any
successor statute.
"BARTER OBLIGATIONS" means all non-Cash obligations of any
nature of any Credit Party with respect to Barter Transactions.
"BARTER TRANSACTIONS" means, with respect to Company or any
of its Subsidiaries, the arm's length exchange of advertising time or
other goods or services of the Stations for programming or other goods
or services, in each case in the ordinary course of business
consistent with past practice and industry standards.
"BASE RATE" means, at any time, the higher of (x) the Prime
Rate or (y) the rate which is 1/2 of 1% in excess of the Federal Funds
Effective Rate.
"BASE RATE LOANS" means Loans bearing interest at rates
determined by reference to the Base Rate as provided in subsection
2.2A.
"BUSINESS DAY" means (i) for all purposes other than as
covered by clause (ii) below, any day excluding Saturday, Sunday and
any day which is a legal holiday under the laws of the State of New
York or is a day on which banking institutions located in such state
are authorized or required by law or other governmental action to
close, and (ii) with respect to all notices, determinations, fundings
and payments in connection with the Adjusted LIBOR Rate or any LIBOR
Rate Loans, any day that is a Business Day described in clause (i)
above and that is also a day for trading by and between banks in
Dollar deposits in the London interbank market.
"CAPITAL LEASE", as applied to any Person, means any lease of
any property (whether real, personal or mixed) by that Person as
lessee that, in conformity with GAAP, is accounted for as a capital
lease on the balance sheet of that Person, other than any LMA.
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"CASH" means money, currency or a credit balance in a Deposit
Account.
"CASH EQUIVALENTS" means, as at any date of determination,
(i) marketable securities (a) issued or directly and unconditionally
guaranteed as to interest and principal by the United States
Government or (b) issued by any agency of the United States the
obligations of which are backed by the full faith and credit of the
United States, in each case maturing within one year after such date;
(ii) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or
any public instrumentality thereof, in each case maturing within one
year after such date and having, at the time of the acquisition
thereof, the highest rating obtainable from either Standard & Poor's
Ratings Group, a division of XxXxxx-Xxxx, Inc. ("S&P") or Xxxxx'x
Investors Service, Inc. ("MOODY'S"); (iii) commercial paper maturing
no more than one year from the date of creation thereof and having, at
the time of the acquisition thereof, a rating of at least A-1 from S&P
or at least P-1 from Moody's; (iv) certificates of deposit or bankers'
acceptances maturing within one year after such date and issued or
accepted by any Lender or by any commercial bank organized under the
laws of the United States of America or any state thereof or the
District of Columbia that (a) is at least "adequately capitalized" (as
defined in the regulations of its primary Federal banking regulator)
and (b) has Tier 1 capital (as defined in such regulations) of not
less than $100,000,000; and (v) shares of any money market mutual fund
that (a) has at least 95% of its assets invested continuously in the
types of investments referred to in clauses (i) through (iv) above,
(b) has net assets of not less than $500,000,000, and (c) has the
highest rating obtainable from either S&P or Moody's.
"CASH PROCEEDS" means, with respect to any Asset Sale, Cash
payments (including any Cash received by way of deferred payment
pursuant to, or monetization of, a note receivable or otherwise, but
only as and when so received) received from such Asset Sale.
"CHANGE OF CONTROL" means:
(i) any Credit Party ceasing for any reason to
beneficially own and control all of the issued and
outstanding shares of capital stock of its Subsidiaries,
excluding Regent of Charleston and Charleston License Sub;
(ii) the sale, lease, or transfer of all or
substantially all of Company's assets to any person or group
(as such term is used in Section 13(d)(3) of the Exchange
Act) other than a wholly-owned Subsidiary;
(iii) the adoption of a plan relating to the
liquidation or dissolution of Company;
(iv) the consummation of any transaction (including
any merger or consolidation but excluding the Faircom
Acquisition and the purchase of equity by GECC and BMO
Financial, Inc.) as a result of which any person or group (as
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such term is used in Section 13(d)(3) of the Exchange Act)
that is not a "beneficial owner" of (as such term is used in
Section 13(d)(3) of the Exchange Act) any stock of Company as
of the date of this Agreement, directly or indirectly becomes
a "beneficial owner" of more than 50% of the voting stock of
Company;
(v) the chief executive officer of Company is a
person other than Xxxxx X. Xxxxxx or such other person as has
been approved by Requisite Lenders (such approval not to be
unreasonably withheld); or
(vi) a majority of the members of Company's Boards
of Directors (excluding any directors who may be elected by
the holders of the Series B Senior Convertible Preferred
Stock and the Series D Convertible Preferred Stock of the
Company) are not individuals who on the date hereof are
members of such Board of Directors, who will become directors
as a result of the Faircom Acquisition, or who were nominated
for election or elected with the approval of a majority of
the directors who were directors on the date hereof or whose
nomination or election was previously so approved.
"CHARLESTON ACQUISITION" means the acquisition of the
Charleston Stations pursuant to the Charleston Acquisition Documents
and upon terms and conditions set forth herein and the sale by the
Company of all of the stock of Regent of Charleston to Citicasters Co.
for $4,500,000 pursuant to the provisions of a Stock Purchase
Agreement, dated August 22, 1997, and the acquisition for $1,500,000
by the Company of an option to purchase radio station WSSP (FM),
Charleston, South Carolina, which funds are to be loaned to the
Company by Citicasters Co. on substantially similar terms and
conditions as are contained in the Jacor Note.
"CHARLESTON ACQUISITION DATE" means the date upon which the
Charleston Acquisition is consummated.
"CHARLESTON ACQUISITION DOCUMENTS" means all of the purchase
agreements and related documents pursuant to which the Charleston
Acquisition is implemented or evidenced.
"CHARLESTON LICENSE SUB" means Regent Licensee of Charleston,
Inc., a Delaware corporation and wholly-owned subsidiary of Regent of
Charleston.
"CHARLESTON NOTES" means (i) the promissory note of Company
in the original principal amount of $1,500,000 which may be issued to
Citicasters in connection with the Charleston Acquisition and (ii) the
promissory note of Regent of Charleston and Charleston License Sub in
the original principal amount of $4,500,000 which may be issued to
Citicasters in connection with the Charleston Acquisition.
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"CHARLESTON NOTE DOCUMENTS" means, collectively, the
Charleston Notes, and all deeds of trust, mortgages, security
agreements, pledge agreements, guaranties, assignments, licenses,
landlord consents and releases and all other instruments or documents
(including, without limitation, UCC-1 financing statements, fixture
filings or similar documents required in order to perfect the Liens
created by any of the above) delivered by Company or Regent of
Charleston pursuant to any of the Charleston Note Documents in order
to grant to Citicasters Liens in real, personal or mixed property of
Regent of Charleston, Charleston License Sub, or the Company.
"CHARLESTON STATIONS" means those Stations set forth under
Part II on SCHEDULE 1.1A that are to be acquired by Regent of
Charleston pursuant to the Charleston Acquisition.
"CHICO LICENSE SUB" means that wholly-owned Subsidiary of the
Company or of a Subsidiary of the Company formed or to be formed,
which will own the FCC Licenses for the Chico Stations following the
Park Lane Acquisition Date.
"CHICO STATIONS" means those Stations identified as the Chico
Stations under Part II, Schedule 1.1A.
"CITICASTERS" means Citicasters Co., an Ohio corporation.
"CLOSING DATE" means the Funding Date on or before March 31,
1998, on which the Loans are made for the initial Permitted
Acquisition and the conditions set forth in subsection 4.2 are
satisfied.
"COLLATERAL" means, collectively, all real, personal, and
mixed property securing the Obligations pursuant to the Security
Documents in accordance with the terms thereof.
"COLLATERAL ACCOUNT AGREEMENT" means the Collateral Account
Agreement to be executed and delivered by Company, substantially in
the form of EXHIBIT XVI annexed hereto.
"COMMITMENT LETTER" means the letter agreement dated May 23,
1997 between Company and Bank of Montreal and the related term sheet.
"COMMITMENT TERMINATION DATE" means the earlier of (i) the
Stated Maturity Date or (ii) the date on which the Commitments are
terminated and the Loans and other Obligations are declared
immediately due and payable in accordance with Section 8.
"COMMITMENTS" means the commitments of Lenders to make Loans
as set forth in subsection 2.1A.
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"COMMUNICATIONS ACT" means the Communications Act of 1934, as
amended, and the rules, regulations and policies of the FCC
promulgated thereunder, as from time to time in effect.
"COMPANY" has the meaning assigned to that term in the
introduction to this Agreement.
"COMPANY COMMON STOCK" means all classes of common stock of
Company, par value $.01 per share, issued by Company pursuant to the
Amended and Restated Certificate of Incorporation of Company.
"COMPANY PREFERRED STOCK" means, collectively, the Series A
Convertible Preferred Stock of Company, the Series B Senior
Convertible Preferred Stock of Company, the Series C Convertible
Preferred Stock of Company and the Series D Convertible Preferred
Stock of Company, par value $.01 per share, issued by Company pursuant
to the Amended and Restated Certificate of Incorporation of Company.
"COMPLIANCE CERTIFICATE" means a certificate substantially in
the form of EXHIBIT VI annexed hereto delivered to Agent and Lenders
by Company pursuant to subsection 6.1(iv).
"CONSENT LETTER" means a landlord consent letter
substantially in the form of EXHIBIT XIV annexed hereto (or otherwise
consistent with landlord consent letters previously delivered pursuant
hereto with respect to similar properties), executed and delivered to
Agent by the owner of each real property leased to a Credit Party with
respect to the Mortgage on such property, and "CONSENT LETTERS" means
all letters collectively.
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period,
the sum of the aggregate of all expenditures (whether paid in Cash or
other consideration or accrued as a liability including that portion
of Capital Leases which is capitalized on the consolidated balance
sheet of Company and its Subsidiaries, but excluding assets acquired
solely pursuant to Barter Transactions) by Company and its
Subsidiaries during that period that, in conformity with GAAP, are
included in "additions to property, plant or equipment" or comparable
items reflected in the consolidated statement of cash flows of Company
and its Subsidiaries.
"CONSOLIDATED CURRENT ASSETS" means, as at any date of
determination, the total assets of Company and its Subsidiaries on a
consolidated basis which may properly be classified as current assets
in conformity with GAAP.
"CONSOLIDATED CURRENT LIABILITIES" means, as at any date of
determination, the total liabilities of Company and its Subsidiaries
on a consolidated basis which may properly be classified as current
liabilities in conformity with GAAP.
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"CONSOLIDATED EXCESS CASH FLOW" means, for any period, (y)
the sum for that period of (i) Consolidated Operating Cash Flow PLUS
(ii) the Consolidated Working Capital Adjustment LESS (z) the sum
(without duplication) for that period of (i) Consolidated Fixed
Charges, (ii) repayments of Consolidated Total Debt to the extent
actually made in that period (other than voluntary prepayments of the
Revolving Loans or other Indebtedness not corresponding to a reduction
in Commitments or other commitments to lend, as the case may be),
(iii) prepayments of the Loans resulting from the application of Net
Cash Proceeds and (iv) gains from sales of assets included in
determining Consolidated Operating Cash Flow.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum
of the amounts for such period of (i) Consolidated Interest Expense,
(ii) income taxes paid in Cash, (iii) all scheduled principal payments
on Consolidated Total Debt, (iv) Consolidated Capital Expenditures and
(v) Consolidated Rental Payments in respect of Capital Leases, all of
the foregoing as determined on a consolidated basis for Company and
its Subsidiaries in conformity with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, total
interest expense (including that portion attributable to Capital
Leases in accordance with GAAP and capitalized interest) of Company
and its Subsidiaries on a consolidated basis with respect to all
outstanding Indebtedness of Company and its Subsidiaries, whether paid
in Cash or accrued, including, without limitation, all commissions,
discounts and other fees and charges owed with respect to letters of
credit and bankers' acceptance financing and net costs under Interest
Rate Agreements, but excluding, however, any amounts referred to in
subsection 2.3 payable to Agent and Lenders on or before the Closing
Date, all of the foregoing determined on a consolidated basis for
Company and its Subsidiaries in conformity with GAAP.
"CONSOLIDATED NET INCOME" means, for any period, the net
income (or loss) of Company and its Subsidiaries on a consolidated
basis for such period taken as a single accounting period determined
in conformity with GAAP; PROVIDED that there shall be excluded (i) the
income (or loss) of any Person (other than a Subsidiary of Company) in
which any other Person (other than Company or any of its Subsidiaries)
has a joint interest, except to the extent of the amount of dividends
or other distributions actually paid to Company or any of its
Subsidiaries by such Person during such period, (ii) the income (or
loss) of any Person accrued prior to the date it becomes a Subsidiary
of Company or is merged into or consolidated with Company or any of
its Subsidiaries or that Person's assets are acquired by Company or
any of its Subsidiaries, (iii) the income of any Subsidiary of Company
to the extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of that income is not at the time
permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary, (iv) any after-tax gains or
losses attributable to Asset Sales or returned surplus assets of any
Pension Plan, and (v) (to the extent not included in clauses (i)
through (iv) above) any net extraordinary gains or net non-Cash
extraordinary losses.
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"CONSOLIDATED OPERATING CASH FLOW" means, for any period, (x)
the sum, without duplication, of the amounts for such period of (i)
Consolidated Net Income, (ii) Consolidated Interest Expense, (iii)
income taxes paid in Cash, (iv) total depreciation expense, (v) total
amortization expense, (vi) other non-Cash items reducing Consolidated
Net Income including, without limitation, accrued but unpaid income
taxes, but excluding accrued and unpaid Overhead, and (vii)
extraordinary losses LESS (y) other non-Cash items increasing
Consolidated Net Income, LESS (z) extraordinary gains, all of the
foregoing as determined on a consolidated basis for Company and its
Subsidiaries in conformity with GAAP.
"CONSOLIDATED RENTAL PAYMENTS" means, for any period, the
aggregate amount of all rents paid or payable by Company and its
Subsidiaries in Cash on a consolidated basis during that period under
all Capital Leases and Operating Leases to which Company or any of its
Subsidiaries is a party as lessee.
"CONSOLIDATED TOTAL DEBT" means, as at any date of
determination, the aggregate stated balance sheet amount of all
Indebtedness of Company and its Subsidiaries determined on a
consolidated basis in accordance with GAAP; PROVIDED however that
solely for the purpose of any calculation of the Consolidated Total
Debt Ratio hereunder, the Sellers Notes, as long as no default in
respect of any such note shall have occurred and be continuing, shall
each be excluded from Consolidated Total Debt until the earlier of (i)
the date which is the first anniversary of the Closing Date, (ii) the
occurrence of any Event of Default or Potential Event of Default under
subsection 8.2 in respect of any such note or (iii) the date on which
a material portion of the assets purchased with the proceeds of such
note are sold, unless such note is repaid in full and cancelled at the
time of such sale.
"CONSOLIDATED TOTAL DEBT RATIO" has the meaning assigned to
that term in subsection 2.2A.
"CONSOLIDATED WORKING CAPITAL" means, as at any date of
determination, the excess of Consolidated Current Assets over
Consolidated Current Liabilities.
"CONSOLIDATED WORKING CAPITAL ADJUSTMENT" means, for any
period on a consolidated basis, the amount (which may be a negative
number) by which the Consolidated Working Capital of Company and its
Subsidiaries as of the beginning of the period exceeds (or is less
than) the Consolidated Working Capital of Company and its Subsidiaries
as of the end of such period.
"CONTINGENT OBLIGATION", as applied to any Person, means any
direct or indirect liability, contingent or otherwise, of that Person
(i) with respect to any Indebtedness, lease, dividend or other
obligation of another if the primary purpose or intent thereof by the
Person incurring the Contingent Obligation is to provide assurance to
the obligee of such obligation of another that such obligation of
another will be paid or discharged, or that any agreements relating
thereto will be complied with, or that the holders of such
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obligation will be protected (in whole or in part) against loss in
respect thereof, (ii) with respect to any letter of credit issued for
the account of that Person or as to which that Person is otherwise
liable for reimbursement of drawings, or (iii) under Interest Rate
Agreements. Contingent Obligations shall include, without limitation,
(a) the direct or indirect guaranty, endorsement (otherwise than for
collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of the
obligation of another, (b) the obligation to make take-or-pay or
similar payments if required regardless of non-performance by any
other party or parties to an agreement, and (c) any liability of such
Person for the obligation of another through any agreement (contingent
or otherwise) (X) to purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide funds for the
payment or discharge of such obligation (whether in the form of loans,
advances, stock purchases, capital contributions or otherwise) or (Y)
to maintain the solvency or any balance sheet item, level of income or
financial condition of another if, in the case of any agreement
described under subclauses (X) or (Y) of this sentence, the primary
purpose or intent thereof is as described in the preceding sentence.
The amount of any Contingent Obligation shall be equal to the amount
of the obligation so guaranteed or otherwise supported or, if less,
the amount to which such Contingent Obligation is specifically
limited.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any Security issued by that Person or of any material
indenture, mortgage, deed of trust, contract, undertaking, agreement
or other instrument to which that Person is a party or by which it or
any of its properties is bound or to which it or any of its properties
is subject.
"CREDIT PARTY" means Company, and each of Company's
Subsidiaries and "CREDIT PARTIES" means such Persons collectively.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or
like account with a bank, savings and loan association, credit union
or like organization, other than an account evidenced by a negotiable
certificate of deposit.
"DOCUMENTATION AGENT" has the meaning assigned to that term
in the introduction to this Agreement.
"DOLLARS" and the sign "$" mean the lawful money of the
United States of America.
"EFFECTIVE DATE" means the date on which this Agreement
becomes effective in accordance with subsection 10.20.
"ELIGIBLE ASSIGNEE" means an "accredited investor" (as
defined in Regulation D under the Securities Act) including without
limitation (A) (i) a commercial bank organized under the laws of the
United States or any state thereof; (ii) a savings and loan
association or savings bank organized under the laws of the United
States or any state
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thereof; (iii) a commercial bank organized under the laws of any other
country or a political subdivision thereof; PROVIDED that (x) such
bank is acting through a branch or agency located in the United States
or (y) such bank is organized under the laws of a country that is a
member of the Organization for Economic Cooperation and Development or
a political subdivision of such country; and (iv) any other accredited
investor which extends credit or buys loans as one of its businesses
including, but not limited to, insurance companies, mutual funds and
lease financing companies, in each case (under clauses (i) through
(iv) above) that is reasonably acceptable to Agent and the Company;
and (B) any Lender and any Affiliate of any Lender that is reasonably
acceptable to Agent and Company (unless such assignment to such
Affiliate is required or advisable to comply with any applicable law
or governmental regulation binding upon such Lender); PROVIDED that no
Affiliate of Company shall be an Eligible Assignee; PROVIDED FURTHER
that in the case of the forgoing clauses (A) and (B) the consent of
Company to any Eligible Assignee shall not be required at any time
that an Event of Default has occurred and is continuing.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as
defined in Section 3(3) of ERISA which is, or was at any time,
maintained or contributed to by Company or any of its ERISA
Affiliates.
"ENVIRONMENTAL CLAIM" means any allegation, notice of
violation, claim, demand, abatement order or other order or direction
(conditional or otherwise) by any governmental authority or any Person
for any damage, including, without limitation, personal injury
(including sickness, disease or death), tangible or intangible
property damage, contribution, indemnity, indirect or consequential
damages, damage to the environment, nuisance, pollution, contamination
or other adverse effects on the environment, or for fines, penalties
or restrictions, in each case relating to, resulting from or in
connection with Hazardous Materials and relating to Company, any of
its Subsidiaries, any of their respective Affiliates or any Facility.
"ENVIRONMENTAL LAWS" means all statutes, ordinances, orders,
rules, regulations, plans, policies or decrees and the like relating
to (i) environmental matters, including, without limitation, those
relating to fines, injunctions, penalties, damages, contribution, cost
recovery compensation, losses or injuries resulting from the Release
or threatened Release of Hazardous Materials, (ii) the generation,
use, storage, transportation or disposal of Hazardous Materials, or
(iii) occupational safety and health, industrial hygiene, land use or
the protection of human, plant or animal health or welfare, in any
manner applicable to any Credit Party, its Subsidiaries or any of
their respective properties, including, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act
(42 U.S.C. ss. 9601 ET SEQ.), the Hazardous Materials Transportation
Act (49 U.S.C. ss. 1801 ET SEQ.), the Resource Conservation and
Recovery Act (42 U.S.C. ss. 6901 ET SEQ.), the Federal Water Pollution
Control Act ( 33 U.S.C. ss. 1251 ET SEQ.), the Clean Air Act (42
U.S.C. ss. 7401 ET SEQ.), the Toxic Substances Control Act (15 U.S.C.
ss. 2601 ET SEQ.), the Federal Insecticide, Fungicide and Rodenticide
Act (7 U.S.C. ss.136 ET SEQ.), the Occupational Safety and Health Act
(29
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U.S.C. ss. 651 ET SEQ.) and the Emergency Planning and Community
Right-to-Know Act (42 U.S.C. ss. 11001 ET SEQ.), each as amended or
supplemented, and any analogous future or present local, state and
federal statutes and regulations promulgated pursuant thereto, each as
in effect as of the date of determination.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"ERISA AFFILIATE", as applied to any Person, means (i) any
corporation which is, or was at any time, a member of a controlled
group of corporations within the meaning of Section 414(b) of the
Internal Revenue Code of which that Person is, or was at any time, a
member; (ii) any trade or business (whether or not incorporated) which
is, or was at any time, a member of a group of trades or businesses
under common control within the meaning of Section 414(c) of the
Internal Revenue Code of which that Person is, or was at any time, a
member; and (iii) any member of an affiliated service group within the
meaning of Section 414(m) or (o) of the Internal Revenue Code of which
that Person, any corporation described in clause (i) above or any
trade or business described in clause (ii) above is, or was at any
time, a member.
"ERISA EVENT" means (i) a "reportable event" within the
meaning of Section 4043 of ERISA and the regulations issued thereunder
with respect to any Pension Plan (excluding those for which the
provision for 30-day notice to the PBGC has been waived by
regulation); (ii) the failure to meet the minimum funding standard of
Section 412 of the Internal Revenue Code with respect to any Pension
Plan (whether or not waived in accordance with Section 412(d) of the
Internal Revenue Code) or the failure to make by its due date a
required installment under Section 412(m) of the Internal Revenue Code
with respect to any Pension Plan or the failure to make any required
contribution to a Multiemployer Plan; (iii) the provision by the
administrator of any Pension Plan pursuant to Section 4041(a)(2) of
ERISA of a notice of intent to terminate such plan in a distress
termination described in Section 4041(c) of ERISA; (iv) the withdrawal
by any Credit Party or any of its ERISA Affiliates from any Pension
Plan with two or more contributing sponsors or the termination of any
such Pension Plan resulting in liability pursuant to Sections 4063 or
4064 of ERISA; (v) the institution by the PBGC of proceedings to
terminate any Pension Plan, or the occurrence of any event or
condition which might constitute grounds under ERISA for the
termination of, or the appointment of a trustee to administer, any
Pension Plan; (vi) the imposition of liability on any Credit Party or
any of its ERISA Affiliates pursuant to Section 4062(e) or 4069 of
ERISA or by reason of the application of Section 4212(c) of ERISA;
(vii) the withdrawal by any Credit Party or any of its ERISA
Affiliates in a complete or partial withdrawal (within the meaning of
Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there
is any potential liability therefor, or the receipt by any Credit
Party or any of its ERISA Affiliates of notice from any Multiemployer
Plan that it is in reorganization or insolvency pursuant to Section
4241 or 4245 of ERISA, or that it intends to terminate or has
terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence
of an act or omission which could give rise to the imposition on any
Credit Party or any of its ERISA
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Affiliates of fines, penalties, taxes or related charges under Chapter
43 of the Internal Revenue Code or under Section 409 or 502(c), (i) or
(l) or 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the
assertion of a material claim (other than routine claims for benefits)
against any Employee Benefit Plan other than a Multiemployer Plan or
the assets thereof, or against any Credit Party or any of its ERISA
Affiliates in connection with any such Employee Benefit Plan; (x)
receipt from the Internal Revenue Service of notice of the failure of
any Pension Plan (or any other Employee Benefit Plan intended to be
qualified under Section 401(a) of the Internal Revenue Code) to
qualify under Section 401(a) of the Internal Revenue Code, or the
failure of any trust forming part of any Pension Plan to qualify for
exemption from taxation under Section 501(a) of the Internal Revenue
Code; or (xi) the imposition of a Lien pursuant to Section 401(a)(29)
or 412(n) of the Internal Revenue Code or pursuant to ERISA with
respect to any Pension Plan.
"EVENT OF DEFAULT" means each of the events set forth in
Section 8.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"EXISTING DEBT" means the debt described on SCHEDULE 1.1B
annexed hereto.
"FACILITIES" means any and all real property (including,
without limitation, all buildings, fixtures or other improvements
located thereon) now, hereafter or heretofore owned, leased, operated
or used by any Credit Party or any of its predecessors or Affiliates.
"FAIRCOM" means Faircom Inc.
"FAIRCOM ACQUISITION" means the acquisition of the Flint
Stations and the Mansfield Stations by means of a merger pursuant to
the Faircom Acquisition Documents and upon terms and conditions set
forth herein.
"FAIRCOM ACQUISITION DATE" means the date upon which each of
the conditions necessary to consummate the Faircom Acquisition is
satisfied and the Faircom Acquisition is consummated.
"FAIRCOM ACQUISITION DOCUMENTS" means the merger agreement
and all related documents pursuant to which the Faircom Acquisition is
implemented or evidenced.
"FAIRCOM STATIONS" means the Flint Stations and the Mansfield
Stations.
"FCC" means the Federal Communications Commission and any
successor governmental agency performing functions similar to those
performed by the Federal Communications Commission on the date hereof.
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"FCC LICENSE" means any of the material licenses, permits or
other authorizations issued by the FCC relating to the Stations.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a
fluctuating interest rate equal for each day during such period to the
rates on overnight Federal funds transactions quoted by Bank of
Montreal.
"FINAL ORDER" means, as of any date of determination with
respect to any written action or consent by the FCC, such written
action or consent which shall have been obtained and (i) which shall
not have been reversed, stayed, enjoined, annulled or suspended and
(ii) for which the time for filing a request for administrative or
judicial relief or for instituting administrative review thereof SUA
SPONTE, shall have expired without any such filing having been made or
notice of such review having been issued, or, in the event of such
filing or review SUA SPONTE, such filing or review SUA SPONTE shall
have been disposed of favorably to confirmation of such written action
or the grant of such consent and the time for seeking further relief
with respect thereto shall have expired without any request for such
further relief having been filed.
"FIRST PRIORITY" means, with respect to any Lien purported to
be created in any Collateral pursuant to any Security Document, that
(i) such Lien has priority over any other Lien on such Collateral
(other than Liens permitted pursuant to subsection 7.2(A) (iii) and
(v)) and (ii) such Lien is the only Lien other than Permitted Liens to
which such Collateral is subject.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of Company and its
Subsidiaries maintained in accordance with subsection 7.15.
"FLAGSTAFF LICENSE SUB" means that wholly-owned Subsidiary of
the Company or of a Subsidiary of the Company formed or to be formed,
which will own the FCC Licenses for the Flagstaff Stations following
the Park Lane Acquisition Date.
"FLAGSTAFF STATIONS" means those Stations identified as the
Flagstaff Stations under Part II, Schedule 1.1A.
"FLINT LICENSE SUB" means that wholly-owned Subsidiary of the
Company or of a Subsidiary of the Company formed or to be formed,
which will own the FCC Licenses for the Flint Stations following the
Faircom Acquisition Date.
"FLINT STATIONS" means those Stations identified as the Flint
Stations under Part II, Schedule 1.1A.
"FUNDING AND PAYMENT OFFICE" means the office of Agent
located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
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"FUNDING DATE" means the date of the funding of a Loan.
"GAAP" means generally accepted accounting principles set
forth in opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entity as may be
approved by a significant segment of the accounting profession, in
each case as the same are applicable to the circumstances as of the
date of determination.
"GECC" means General Electric Capital Corporation.
"GOVERNMENTAL ACTS" has the meaning assigned to that term in
subsection 3.5A hereof.
"GOVERNMENTAL AUTHORIZATION" means any permit, license,
authorization, plan, directive, consent order or consent decree of or
from any federal, state or local governmental authority, agency or
court.
"HAZARDOUS MATERIALS" means (i) any chemical, material or
substance at any time defined as or included in the definition of
"hazardous substances", "hazardous wastes", "hazardous materials",
"extremely hazardous waste", "restricted hazardous waste", "infectious
waste", "toxic substances" or any other formulations intended to
define, list or classify substances by reason of deleterious
properties such as ignitability, corrosivity, reactivity,
carcinogenicity, toxicity, reproductive toxicity, "TCLP toxicity" or
"EP toxicity" or words of similar import under any applicable
Environmental Laws or publications promulgated pursuant thereto; (ii)
any oil, petroleum, petroleum fraction or petroleum derived substance;
(iii) any drilling fluids, produced waters and other wastes associated
with the exploration, development or production of crude oil, natural
gas or geothermal resources; (iv) any flammable substances or
explosives; (v) any radioactive materials; (vi) asbestos in any form;
(vii) urea formaldehyde foam insulation; (viii) electrical equipment
which contains any oil or dielectric fluid containing levels of
polychlorinated biphenyls in excess of fifty parts per million; (ix)
pesticides; and (x) any other chemical, material or substance,
exposure to which is prohibited, limited or regulated by any
governmental authority or which may or could pose a hazard to the
health and safety of the owners, occupants or any Persons in the
vicinity of the Facilities.
"HMH" means HMH Broadcasting, Inc.
"HMH NOTE" means the promissory note of Regent of Lexington
and Lexington License Sub in the original principal amount of
$3,500,000 issued to HMH in connection with the Acquisition of the
Lexington Station.
"HMH NOTE DOCUMENTS" means, collectively, the HMH Note, and
all deeds of trust, mortgages, security agreements, pledge agreements,
guaranties, assignments, license, landlord consents and releases and
all other instruments (including, without
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limitation, UCC-1 financing statements, fixture filings or similar
documents required in order to perfect the Liens created by any of the
above) delivered by Regent of Lexington, Lexington Licensee Sub or
Company pursuant to any of the HMH Note Documents in order to grant to
HMH Liens in real, personal or mixed property or stock of Regent of
Lexington or Lexington License Sub.
"INDEBTEDNESS", as applied to any Person, means (i) all
indebtedness for borrowed money, (ii) that portion of obligations with
respect to Capital Leases that is properly classified as a liability
on a balance sheet in conformity with GAAP, (iii) notes payable and
drafts accepted representing extensions of credit whether or not
representing obligations for borrowed money, (iv) any obligation owed
for all or any part of the deferred purchase price of property or
services (excluding any such obligations incurred under ERISA), which
purchase price is (a) due more than six months from the date of
incurrence of the obligation in respect thereof or (b) evidenced by a
note or similar written instrument, (v) all indebtedness secured by
any Lien on any property or asset owned or held by that Person
regardless of whether the indebtedness secured thereby shall have been
assumed by that Person or is nonrecourse to the credit of that Person
and (vi) obligations under non-compete agreements and all other
obligations that would be properly classified as a liability on a
balance sheet conforming with GAAP (other than current trade payables
and current accrued expenses); PROVIDED that obligations under
Interest Rate Agreements constitute Contingent Obligations and not
Indebtedness; PROVIDED FURTHER that Indebtedness shall not include (1)
Barter Obligations or (2) obligations in respect of Operating Leases
that would not be properly classified as a liability on a balance
sheet in conformity with GAAP.
"INDEMNITEE" has the meaning assigned to that term in
subsection 10.3.
"INITIAL MORTGAGED PROPERTY" and "INITIAL MORTGAGED
PROPERTIES" have the respective meanings assigned thereto in
subsection 4.2B.
"INTELLECTUAL PROPERTY" means all patents, trademarks,
tradenames, copyrights, technology, know-how and processes used in or
necessary for the conduct of the business of any Credit Party or its
Subsidiaries as currently conducted that are material to the condition
(financial or otherwise), business or operations of such Credit Party
and its Subsidiaries, taken as a whole.
"INTEREST PAYMENT DATE" means (i) with respect to any Base
Rate Loan, each March 31, June 30, September 30 and December 31 of
each year, commencing on the first such date to occur after the
Closing Date, and (ii) with respect to any LIBOR Rate Loan, the last
day of each Interest Period applicable to such Loan; PROVIDED that in
the case of each Interest Period of longer than three months "Interest
Payment Date" shall also include the date that is three months, or an
integral multiple thereof, after the commencement of such Interest
Period.
"INTEREST PERIOD" has the meaning assigned to that term in
subsection 2.2B.
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"INTEREST RATE AGREEMENT" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement
or other similar agreement or arrangement designed to protect Company
or any of its Subsidiaries against fluctuations in interest rates.
"INTEREST RATE DETERMINATION DATE" means, with respect to any
Interest Period, the second Business Day prior to the first day of
such Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended to the date hereof and from time to time hereafter.
"INVESTMENT" means (i) any direct or indirect purchase or
other acquisition by any Credit Party of, or of a beneficial interest
in, any Securities of any other Person (other than a Person that,
prior to such purchase or acquisition, was a wholly-owned Subsidiary
of such Credit Party), or (ii) any direct or indirect loan, advance
(other than advances to employees for moving, entertainment and travel
expenses, drawing accounts and similar expenditures in the ordinary
course of business) or capital contribution by any Credit Party to any
other Person other than a wholly-owned Subsidiary of such Credit
Party, including all indebtedness and accounts receivable from that
other Person that are not current assets or did not arise from sales
to that other Person in the ordinary course of business. The amount of
any Investment shall be the original cost of such Investment plus the
cost of all additions thereto, without any adjustments for increases
or decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment.
"ISSUING LENDER" means Bank of Montreal.
"XXXXXX GUARANTY" means the Xxxxxx Guaranty to be executed by
Xxxxx X. Xxxxxx, substantially in the form of EXHIBIT XV annexed
hereto.
"JACOR" means Citicasters Co., a subsidiary of Jacor
Communications, Inc.
"JACOR NOTE" means the amended and restated promissory note
of Regent of San Diego and San Diego License Sub in the original
principal amount of $6,000,000 issued to Jacor in connection with the
Acquisition of the San Diego Station.
"JACOR NOTE DOCUMENTS" means, collectively, the Jacor Note,
and all deeds of trust, mortgages, security agreements, pledge
agreements, guaranties, assignments, licenses, landlord consents and
releases and all other instruments or documents (including, without
limitation, UCC-1 financing statements, fixture filings or similar
documents required in order to perfect the Liens created by any of the
above) delivered by Company, Regent of San Diego, or San Diego License
Sub pursuant to any of the Jacor Note Documents in order to grant to
Jacor Liens in real, personal or mixed property or stock of Regent of
San Diego or San Diego License Sub.
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"JOINT VENTURE" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal
form; PROVIDED that in no event shall any corporate Subsidiary of any
Person be considered to be a Joint Venture to which such Person is a
party.
"KINGMAN LICENSE SUB" means that wholly-owned Subsidiary of
the Company or of a Subsidiary of the Company formed or to be formed,
which will own the FCC Licenses for the Kingman Stations following the
Park Lane Acquisition Date.
"KINGMAN STATIONS" means those Stations identified as the
Kingman Stations under Part II, Schedule 1.1A.
"LAKE TAHOE LICENSE SUB" means that wholly-owned Subsidiary
of the Company or of a Subsidiary of the Company formed or to be
formed, which will own the FCC Licenses for the Lake Tahoe Stations
following the Park Lane Acquisition Date.
"LAKE TAHOE STATIONS" means those Stations identified as the
Lake Tahoe Stations under Part II, Schedule 1.1A.
"LENDER" and "LENDERS" means the persons identified as
"Lenders" and listed on the signature pages of this Agreement,
together with their successors and permitted assigns pursuant to
subsection 10.1; PROVIDED that the term "Lenders", when used in the
context of a particular Commitment, shall mean Lenders having that
Commitment.
"LENDERS' POLICY" has the meaning assigned that term in
subsection 4.2B and "LENDERS' POLICIES" means all such policies
collectively.
"LETTER OF CREDIT" or "LETTERS OF CREDIT" means the standby
letters of credit issued or to be issued by Issuing Lender for the
account of Company pursuant to subsection 3.1 for the purpose of
supporting (i) Indebtedness of Company or any of its Subsidiaries in
respect of industrial revenue or development bonds or financings, (ii)
workers' compensation liabilities of Company or any of its
Subsidiaries, (iii) the obligations of third party insurers of Company
or any of its Subsidiaries arising by virtue of the laws of any
jurisdiction requiring third party insurers, (iv) obligations with
respect to Capital Leases or Operating Leases of Company or any of its
Subsidiaries, (v) performance, payment, deposit or surety obligations
of Company or any of its Subsidiaries, in any case if required by law
or governmental rule or regulation or in accordance with custom and
practice in the industry, and (vi) obligations with respect to
Permitted Acquisitions of Company or any of its Subsidiaries; PROVIDED
that standby Letters of Credit may not be issued for the purpose of
supporting (a) trade payables or (b) any Indebtedness constituting
"antecedent debt" (as that term is used in Section 547 of the
Bankruptcy Code).
"LETTER OF CREDIT USAGE" means, as at any date of
determination, the sum of (i) the maximum aggregate amount which is or
at any time thereafter may become available
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for drawing under all Letters of Credit then outstanding PLUS (ii) the
aggregate amount of all drawings under Letters of Credit honored by
Issuing Lender and not theretofore reimbursed by Company (including
any such reimbursement out of the proceeds of Revolving Loans pursuant
to subsection 3.3B).
"LEXINGTON LICENSE SUB" means Regent Licensee of Lexington,
Inc., a Delaware corporation and wholly-owned subsidiary of Regent of
Lexington.
"LEXINGTON STATION" means the Station set forth on SCHEDULE
1.1A that is owned and operated by Regent of Lexington.
"LIBOR RATE LOANS" means Loans bearing interest at rates
determined by reference to the Adjusted LIBOR Rate as provided in
subsection 2.2A.
"LICENSE SUBS" means each of San Diego License Sub, Flagstaff
License Sub, Kingman License Sub, Lake Tahoe License Sub, Chico
License Sub, Palmdale License Sub, Xxxxxxx License Sub, Victorville
License Sub, Flint License Sub, Mansfield License Sub, Lexington
License Sub, Charleston License Sub, and any other special purpose
Subsidiary of an Operating Sub or Company which is created or acquired
to hold the FCC Licenses acquired in connection with any Permitted
Acquisition and "LICENSE SUBS" means all such License Subs.
"LIEN" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional
sale or other title retention agreement, any lease in the nature
thereof, and any agreement to give any security interest) and any
option, trust or other preferential arrangement having the practical
effect of any of the foregoing.
"LMA" means any joint sales agreement, advertising sales
agreement, time brokerage agreement, local marketing agreement or
management services agreement or similar arrangement with respect to
the management or marketing of any radio station (including, without
limitation, the Stations) or any other broadcast properties to which
Company or any of its Subsidiaries is a party.
"LOAN OR LOANS" means one or more of the Revolving Loans.
"LOAN DOCUMENTS" means this (i) Agreement, (ii) the Notes,
(iii) the Letters of Credit (and any applications for, or
reimbursement agreements or other documents or certificates executed
by Company in favor of Issuing Lender relating to, the Letters of
Credit), (iv) the Subsidiary Guaranty, (v) the Security Documents,
(vi) any Interest Rate Agreements entered into by Company with any
Lender, and (vii) the Xxxxxx Guaranty.
"MANSFIELD LICENSE SUB" means that wholly-owned Subsidiary of
the Company or of a Subsidiary of the Company formed or to be formed,
which will own the FCC Licenses for the Mansfield Stations following
the Faircom Acquisition Date.
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"MANSFIELD STATIONS" means those Stations identified as the
Mansfield Stations under Part II, Schedule 1.1A.
"MARGIN STOCK" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve System
as in effect from time to time.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse effect
upon the business, operations, properties, assets, condition
(financial or otherwise) or prospects of the Company and its
Subsidiaries (taken as a whole) or (ii) the impairment of any material
portion of the Collateral or the ability of any Credit Party to
perform in any material respect, or of Agent or Lenders to enforce,
the Obligations.
"MIAMI VALLEY" means Miami Valley Venture Fund L.P.
"MORTGAGES" means each of the Mortgages to be executed and
delivered by a Credit Party on the Closing Date substantially in the
form of EXHIBIT XIII (as modified to conform to local requirements),
as such mortgages may be amended, restated, supplemented or otherwise
modified from time to time in accordance with the terms hereof and
thereof.
"MULTIEMPLOYER PLAN" means a "multiemployer plan", as defined
in Section 3(37) of ERISA, to which Company or any of its ERISA
Affiliates is contributing, or ever has contributed, or to which
Company or any of its ERISA Affiliates has, or ever has had, an
obligation to contribute.
"NET CASH PROCEEDS" means, with respect to any Asset Sale,
Cash Proceeds of such Asset Sale net of bona fide direct costs of sale
including (i) income and other taxes reasonably estimated to be
actually payable as a result of such Asset Sale within two years of
the date of such Asset Sale, (ii) payment of the outstanding principal
amount of, premium or penalty, if any, and interest on any
Indebtedness permitted hereunder (other than the Loans) that is
secured by a Lien on the stock or assets in question and that is
required to be repaid under the terms thereof as a result of such
Asset Sale and (iii) brokerage, legal and accounting fees; PROVIDED
that such fees shall be deducted from Cash Proceeds only to the extent
that they are reasonable in amount in accordance with industry
standards and are not payable to any Affiliates of the Company.
"NOTE OR NOTES" means one or more of the Revolving Notes.
"NOTICE OF BORROWING" means a notice substantially in the
form of EXHIBIT I annexed hereto delivered by Company to Agent
pursuant to subsection 2.1B with respect to a proposed borrowing.
"NOTICE OF CONVERSION/CONTINUATION" means a notice
substantially in the form of EXHIBIT II annexed hereto delivered by
Company to Agent pursuant to subsection 2.2D
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with respect to a proposed conversion or continuation of the
applicable basis for determining the interest rate with respect to the
Loans specified therein.
"NOTICE OF ISSUANCE OF LETTER OF CREDIT" means a notice
substantially in the form of EXHIBIT III annexed hereto delivered by
Company to Agent pursuant to subsection 3.1B(i) with respect to the
proposed issuance of a Letter of Credit.
"OBLIGATIONS" means all obligations of every nature of the
Credit Parties from time to time owed to Agent, Lenders or any of them
under the Loan Documents, whether for principal, interest,
reimbursement of amounts drawn under Letters of Credit, fees,
expenses, indemnification or otherwise.
"OFFICERS' CERTIFICATE" means, as applied to any corporation,
a certificate executed on behalf of such corporation by any of its
chairman of the board (if an officer), its president, its chief
operating officer or one of its vice presidents or its chief financial
officer or its treasurer (in each case, in such officer's official
capacity and not individually); PROVIDED that every Officers'
Certificate with respect to the compliance with a condition precedent
to the making of any Loans hereunder shall include: (i) a statement
that the officer or officers, in his capacity as such, making or
giving such Officers' Certificate have read such condition and any
definitions or other provisions contained in this Agreement relating
thereto, (ii) a statement that, in the opinion of the signers, they
have made or have caused to be made such examination or investigation
as is necessary to enable them to express an informed opinion as to
whether or not such condition has been complied with, and (iii) a
statement as to whether, in the opinion of the signers, such condition
has been complied with.
"OPERATING LEASE" means, as applied to any Person, any lease
(including, without limitation, leases that may be terminated by the
lessee at any time) of any property (whether real, personal or mixed)
that is not a Capital Lease other than (i) any such lease under which
that Person is the lessor and (ii) any LMA.
"OPERATING SUB" means each of Regent of San Diego, Regent of
Flagstaff, Regent of Kingman, Regent of Lake Tahoe, Regent of Chico,
Regent of Xxxxxxx, Regent of Palmdale, Regent of Victorville, Regent
of Flint, Regent of Mansfield, Regent of Lexington, Regent of
Charleston, and each other Subsidiary of Company (other than a License
Sub) created or acquired in connection with a Permitted Acquisition
for the purposes of operating any Station and "OPERATING SUBS" means
all such Operating Subs.
"OVERHEAD" means, collectively, all amounts paid, payable or
distributed or distributable to any Person (other than Company) by any
Credit Party in connection with corporate "home office" costs and
expenses including, without limitation, management fees, salaries,
bonuses, reimbursement of expenses or other compensation for services
in connection with headquarters, collective or overhead operations for
the Credit Parties, provided, however, that Overhead shall not include
amounts incurred by Company and
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allocated to any or all of the Stations and included in the line item
"Station Allocated Overhead" on such Station's statements of income
for any applicable period in accordance with GAAP and past practice up
to an aggregate amount not to exceed $1,200,000 for all Stations
combined for the Fiscal Year ending December 31, 1997 and increasing
by 5% per annum for all Stations combined for each Fiscal Year
thereafter.
"PALMDALE LICENSE SUB" means that wholly-owned Subsidiary of
the Company or of a Subsidiary of the Company formed or to be formed,
which will own the FCC Licenses for the Palmdale Stations following
the Park Lane Acquisition Date.
"PALMDALE STATIONS" means those Stations identified as the
Palmdale Stations under Part II, Schedule 1.1A
"PARK LANE ACQUISITION" means the acquisition of the Park
Lane Stations pursuant to the Park Lane Acquisition Documents and upon
terms and conditions set forth herein.
"PARK LANE ACQUISITION DATE" means the date upon which each
of the conditions to funding the Loans to consummate the Park Lane
Acquisition is satisfied.
"PARK LANE ACQUISITION DOCUMENTS" means all of the purchase
agreements and related documents pursuant to which the Park Lane
Acquisition is implemented or evidenced.
"PARK LANE STATIONS" means the Flagstaff Stations, the
Kingman Stations, the Lake Tahoe Stations, the Xxxxxxx Stations, the
Chico Stations, the Palmdale Stations and the Victorville Stations.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor thereto).
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal
Revenue Code or Section 302 of ERISA.
"PERMITTED ACQUISITION" has the meaning set forth in
subsection 7.7(ii).
"PERMITTED ACQUISITION CLOSING DATE" means, with respect to
any Permitted Acquisition, including the Faircom Acquisition, the
Charleston Acquisition and the Park Lane Acquisition, the date upon
which each of the conditions to consummation of such acquisition
(including, without limitation, funding any Revolving Loans to
consummate such Permitted Acquisition) set forth in subsections
7.7(ii), 4.2 and 4.3 is satisfied.
"PERMITTED ACQUISITION DOCUMENTS" means, the material
agreements pursuant to which any other Permitted Acquisition is
consummated.
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"PERMITTED ENCUMBRANCES" means the following types of Liens
(other than any such Lien imposed pursuant to Section 401(a)(29) or
412(n) of the Internal Revenue Code or by ERISA):
(i) Liens for taxes, assessments or governmental
charges or claims the payment of which is not, at the time,
required by subsection 6.3;
(ii) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics and materialmen and other
Liens imposed by law incurred in the ordinary course of
business for sums not yet delinquent or being contested in
good faith, if such reserve or other appropriate provision,
if any, as shall be required by GAAP shall have been made
therefor;
(iii) Liens incurred or deposits made in the
ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and
return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);
(iv) any attachment or judgment Lien not
constituting an Event of Default under subsection 8.8;
(v) leases or subleases granted to others not
interfering in any material respect with the ordinary conduct
of the business of any Credit Party or any of its
Subsidiaries;
(vi) easements, rights-of-way, restrictions, minor
defects, encroachments or irregularities in title and other
similar charges or encumbrances not interfering in any
material respect with the ordinary conduct of the business of
any Credit Party or any of its Subsidiaries;
(vii) any (a) interest or title of a lessor or
sublessor under any lease, (b) restriction or encumbrance
that the interest or title of such lessor or sublessor may be
subject to, or (c) subordination of the interest of the
lessee or sublessee under such lease to any restriction or
encumbrance referred to in the preceding clause (b);
(viii) Liens arising from filing UCC financing
statements relating solely to leases permitted by this
Agreement;
(ix) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of
customs duties in connection with the importation of goods;
and
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(x) Liens of a collecting bank under Section 4-208
of the Uniform Commercial Code as in effect in the relevant
jurisdiction.
"PERMITTED LIENS" means Liens permitted pursuant to
subsection 7.2A.
"PERSON" means and includes natural persons, corporations,
limited partnerships, general partnerships, joint stock companies,
Joint Ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts or other organizations,
whether or not legal entities, and governments and agencies and
political subdivisions thereof.
"PLEDGE AND SECURITY AGREEMENT" means the Pledge and Security
Agreement to be executed and delivered by each Credit Party,
substantially in the form of EXHIBIT X annexed hereto.
"POTENTIAL EVENT OF DEFAULT" means a condition or event that,
after notice or lapse of time or both, would constitute an Event of
Default.
"PRIME RATE" means the rate that Bank of Montreal announces
from time to time as its prime lending rate, as in effect from time to
time in the United States. The Prime Rate is a reference rate and does
not necessarily represent the lowest or best rate actually charged to
any customer in the United States or any other country. Bank of
Montreal or any other Lender may make commercial loans or other loans
at rates of interest at, above or below the Prime Rate.
"PRO RATA SHARE" means (i) with respect to all payments,
computations and other matters relating to the Revolving Loan
Commitment or the Revolving Loans of any Lender, the percentage
obtained by DIVIDING (x) the Revolving Loan Exposure of that Lender BY
(y) the aggregate Revolving Loan Exposure of all Lenders, and (ii) for
all other purposes with respect to each Lender, the percentage
obtained by dividing (x) the Revolving Loan Exposure of that Lender BY
(y) the aggregate Revolving Loan Exposure of all Lenders, in any such
case as the applicable percentage may be adjusted by assignments
permitted pursuant to subsection 10.1.. The initial Pro Rata Share of
each Lender for purposes of each of clauses (i), and (ii) of the
preceding sentence is set forth opposite the name of that Lender in
SCHEDULE 2.1 annexed hereto.
"REAL PROPERTY" means each of the fee and lease properties of
the Credit Parties described in SCHEDULE 5.1F annexed hereto.
"REDDING LICENSE SUB" means that wholly-owned Subsidiary of
the Company or of a Subsidiary of the Company formed or to be formed,
which will own the FCC Licenses for the Redding Stations following the
Park Lane Acquisition Date.
"REDDING STATIONS" means those Stations identified as the
Redding Stations under Part II, Schedule 1.1A.
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"REFINANCING PROCEEDS" has the meaning set forth in
subsection 7.5.
"REGENT OF CHARLESTON" means Regent Broadcasting of
Charleston, Inc., a Delaware corporation and wholly-owned subsidiary
of Company.
"REGENT OF CHICO" means that wholly-owned Subsidiary of the
Company or of a Subsidiary of the Company formed or to be formed or
acquired, which will own the assets (other than the FCC Licenses) and
operate the Chico Stations pursuant to an operating agreement with
Chico License Sub following the Park Lane Acquisition Date.
"REGENT OF FLAGSTAFF" means that wholly-owned Subsidiary of
the Company or of a Subsidiary of the Company formed or to be formed
or acquired, which will own the assets (other than the FCC Licenses)
and operate the Flagstaff Stations pursuant to an operating agreement
with Flagstaff License Sub following the Park Lane Acquisition Date.
"REGENT OF FLINT" means that wholly-owned Subsidiary of the
Company or of a Subsidiary of the Company formed or to be formed or
acquired, which will own the assets (other than the FCC Licenses) and
operate the Flint Stations pursuant to an operating agreement with
Flint License Sub following the Faircom Acquisition Date.
"REGENT OF KINGMAN" means that wholly-owned Subsidiary of the
Company or of a Subsidiary of the Company formed or to be formed or
acquired, which will own the assets (other than the FCC Licenses) and
operate the Kingman Stations pursuant to an operating agreement with
Kingman License Sub following the Park Lane Acquisition Date.
"REGENT OF LEXINGTON" has the meaning set forth in the
recitals to this Agreement.
"REGENT OF LAKE TAHOE" means that wholly-owned Subsidiary of
the Company or of a Subsidiary of the Company formed or to be formed
or acquired, which will own the assets (other than the FCC Licenses)
and operate the Lake Tahoe Stations pursuant to an operating agreement
with Lake Tahoe License Sub following the Park Lane Acquisition Date.
"REGENT OF MANSFIELD" means that wholly-owned Subsidiary of
the Company or of a Subsidiary of the Company formed or to be formed
or acquired, which will own the assets (other than the FCC Licenses)
and operate the Mansfield Stations pursuant to an operating agreement
with Mansfield License Sub following the Faircom Acquisition Date.
"REGENT OF PALMDALE" means that wholly-owned Subsidiary of
the Company or of a Subsidiary of the Company formed or to be formed
or acquired, which will own the assets (other than the FCC Licenses)
and operate the Palmdale Stations pursuant to an
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operating agreement with Palmdale License Sub following the Park Lane
Acquisition Date.
"REGENT OF REDDING" means that wholly-owned Subsidiary of the
Company or of a Subsidiary of the Company formed or to be formed or
acquired, which will own the assets (other than the FCC Licenses) and
operate the Redding Stations pursuant to an operating agreement with
Redding License Sub following the Park Lane Acquisition Date.
"REGENT OF SAN DIEGO" has the meaning set forth in the
recitals to this Agreement.
"REGENT OF VICTORVILLE" means that wholly-owned Subsidiary of
the Company or of a Subsidiary of the Company formed or to be formed
or acquired, which will own the assets (other than the FCC Licenses)
and operate the Victorville Stations pursuant to an operating
agreement with Victorville License Sub following the Park Lane
Acquisition Date.
"REGULATION D" means Regulation D of the Board of Governors
of the Federal Reserve System, as in effect from time to time.
"REIMBURSEMENT DATE" has the meaning assigned to that term in
subsection 3.3B.
"RELATED DOCUMENTS" means the (i) Acquisition Documents, (ii)
the Subordinated Debt Documents and (iii) the LMAs.
"RELEASE" means any release, spill, emission, leaking,
pumping, pouring, injection, escaping, deposit, disposal, discharge,
dispersal, dumping, leaching or migration of Hazardous Materials into
the indoor or outdoor environment (including, without limitation, the
abandonment or disposal of any barrels, containers or other closed
receptacles containing any Hazardous Materials), or into or out of any
Facility, including the movement of any Hazardous Material through the
air, soil, surface water, groundwater or property.
"REQUISITE LENDERS" means Lenders having or holding 66-2/3%
or more of the sum of the aggregate Revolving Loan Exposure of all
Lenders.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any
class of stock of Company, except a dividend payable solely in shares
of that class of stock to the holders of that class, and (ii) any
redemption, retirement, sinking fund or similar payment, purchase or
other acquisition for value, direct or indirect, of any shares of any
class of stock of Company, (iii) any payment made to retire, or to
obtain the surrender of, any outstanding warrants, options or other
rights to acquire shares of any class of stock of Company and (iv) any
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payment or prepayment of principal of, premium, if any, or interest
on, redemption, retirement, defeasance (including substance or legal
defeasance), sinking fund or similar payment with respect to any
Subordinated Indebtedness; PROVIDED that Restricted Junior Payments
shall not include any Overhead payments permitted hereunder.
"REVOLVING LOAN COMMITMENT" means the commitment of a Lender
to make Revolving Loans to Company pursuant to subsection 2.1A, and
"REVOLVING LOAN COMMITMENTS" means such commitments of all Lenders in
the aggregate.
"REVOLVING LOAN EXPOSURE" means, with respect to any Lender
as of any date of determination (i) prior to the termination of the
Revolving Loan Commitments, that Lender's Revolving Loan Commitment
and (ii) after the termination of the Revolving Loan Commitments, the
aggregate outstanding principal amount of the Revolving Loans of that
Lender.
"REVOLVING LOANS" means the Loans made by Lenders to Company
pursuant to subsection 2.1A.
"REVOLVING NOTES" means (i) the promissory notes of Company
issued pursuant to subsection 2.1D on the Closing Date and (ii) any
promissory notes issued by Company pursuant to the last sentence of
subsection 10.1B(i) in connection with assignments of the Revolving
Loan Commitments and Revolving Loans of any Lenders, in each case
substantially in the form of EXHIBIT IV annexed hereto, as they may be
amended, supplemented or otherwise modified from time to time.
"SAN DIEGO LICENSE SUB" means Regent Licensee of San Diego,
Inc., a California corporation and wholly-owned subsidiary of Regent
of San Diego.
"SAN DIEGO STATION" means the Station set forth on SCHEDULE
1.1A that is owned and operated by Regent of San Diego.
"SECURITIES" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation
in any profit-sharing agreement or arrangement, options, warrants,
bonds, debentures, notes, or other evidences of indebtedness, secured
or unsecured, convertible, subordinated or otherwise, or in general
any instruments commonly known as "securities" or any certificates of
interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to
subscribe to, purchase or acquire, any of the foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"SECURITY DOCUMENTS" means the Pledge and Security Agreement,
the Collateral Account Agreement, the Mortgages, Memoranda of Lease,
the Lenders' Policies, Consent Letters and all deeds of trust,
mortgages, security agreements, pledge
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agreements, assignments, licenses, landlord consents and releases and
all other instruments or documents (including, without limitation,
UCC-1 financing statements, fixture filings or similar documents
required in order to perfect the Liens created by the Security
Documents) delivered by a Credit Party pursuant to this Agreement and
the other Loan Documents in order to grant to Agent on behalf and for
the ratable benefit of Lenders Liens in real, personal or mixed
property of that Credit Party.
"SELLERS" means, collectively, the shareholders of the Park
Lane Group, Faircom, Xxxxx Broadcast Group Limited Partnership,
Highbourne Communications, Inc., Village Communications, Inc. and any
of the sellers of radio stations under a Permitted Acquisition
Document.
"SELLERS NOTES" means, collectively, the Jacor Note, the
Charleston Notes and the HMH Note.
"SELLERS NOTE DOCUMENTS" means, collectively, the Jacor Note
Documents, the Charleston Note Documents and the HMH Note Documents
"SOLVENT" means, with respect to any Person, that as of the
date of determination both (A) (i) the then fair saleable value of the
property of such Person is (y) greater than the total amount of
liabilities (including contingent liabilities) of such Person and (z)
not less than the amount that will be required to pay the probable
liabilities on such Person's then existing debts as they become
absolute and matured considering all financing alternatives and
potential asset sales reasonably available to such Person; (ii) such
Person's capital is not unreasonably small in relation to its business
or any contemplated or undertaken transaction; and (iii) such Person
does not intend to incur, or believe (nor should it reasonably
believe) that it will incur, debts beyond its ability to pay such
debts as they become due; and (B) such Person is "solvent" within the
meaning given that term and similar terms under applicable laws
relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall
be computed as the amount that, in light of all of the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"STATED MATURITY DATE" means March 31, 2005.
"STATION" means each radio station owned and operated by
Company or any of its Subsidiaries, including, without limitation, the
San Diego Station, the Lexington Station and each radio station
hereafter acquired by Company or any of its Subsidiaries pursuant to a
Permitted Acquisition, including the Faircom Acquisition, the
Charleston Acquisition and the Park Lane Acquisition, and "STATIONS"
means all such Stations.
"SUBORDINATED DEBT DOCUMENTS" means, collectively, all
agreements and instruments evidencing, implementing or supporting
Subordinated Indebtedness.
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"SUBORDINATED INDEBTEDNESS" means, collectively, all
obligations of Company and its Subsidiaries including, without
limitation, any obligation to pay principal, interest, premiums,
penalty, fees, expenses, indemnities or any other charge under or in
respect of any other obligations of Company or its Subsidiaries
subordinated in right of payment to the Obligations pursuant to
documentation containing maturities, amortization, schedules,
covenants, remedies, subordination provisions and other material terms
in form and substance satisfactory to Agent and Requisite Lenders.
"SUBSEQUENT MORTGAGED PROPERTY" AND "SUBSEQUENT MORTGAGED
PROPERTIES" have the respective meanings assigned thereof in
Subsection 4.4A.
"SUBSIDIARY" means, with respect to any Person, any
corporation, partnership, association, joint venture or other business
entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the
occurrence of any contingency) to vote in the election of the Person
or Persons (whether directors, managers, trustees or other Persons
performing similar functions) having the power to direct or cause the
direction of the management and policies thereof is at the time owned
or controlled, directly or indirectly, by that Person or one or more
of the other Subsidiaries of that Person or a combination thereof.
"SUBSIDIARY GUARANTY" means the Subsidiary Guaranty to be
executed and delivered by each Subsidiary of Company including,
without limitation, each License Sub and Operating Sub, substantially
in the form of EXHIBIT IX annexed hereto.
"TAX" or "TAXES" means any present or future tax, levy,
impost, duty, charge, fee, deduction or withholding levied, collected,
withheld or assessed; PROVIDED that "TAX ON THE OVERALL NET INCOME" of
a Person shall be construed as a reference to a tax imposed by the
jurisdiction in which that Person's principal office (and/or, in the
case of a Lender, its lending office) is located or in which that
Person is deemed to be doing business on all or part of the net
income, profits or gains of that Person (whether worldwide, or only
insofar as such income, profits or gains are considered to arise in or
to relate to a particular jurisdiction, or otherwise).
"TRANSFER FCC CONSENT" means the initial written action or
actions by the FCC approving any assignment of FCC Licenses for the
Stations from Company or an Operating Sub to the respective License
Sub, as required hereunder.
"VICTORVILLE LICENSE SUB" means that wholly-owned Subsidiary
of the Company or of a Subsidiary of the Company formed or to be
formed, which will own the FCC Licenses for the Victorville Stations
following the Park Lane Acquisition Date.
"VICTORVILLE STATIONS" means those Stations identified as the
Victorville Stations under Part II, Schedule 1.1A.
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1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF CALCULATIONS
UNDER AGREEMENT.
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements and other information
required to be delivered by Company to Lenders pursuant to clauses (i), (ii),
(iii) and (xiii) of subsection 6.1 shall be prepared in accordance with GAAP as
in effect at the time of such preparation (and delivered together with the
reconciliation statements provided for in subsection 6.1(v)). Calculations in
connection with the definitions, covenants and other provisions of this
Agreement shall utilize accounting principles and policies in conformity with
those used to prepare the financial statements referred to in subsection 5.3.
1.3 OTHER DEFINITIONAL PROVISIONS.
References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Agreement unless otherwise specifically
provided. Any of the terms defined in subsection 1.1 may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference. Any reference herein or in any other Loan Document to any agreement,
document or instrument, including, without limitation, this Agreement, the
Notes, the other Loan Documents and the Related Documents and any schedules or
exhibits thereto, unless expressly noted otherwise, shall be a reference to
each such agreement, document or instrument as the same may be amended,
restated, supplemented or otherwise modified from time to time to the extent
permitted hereunder or under the applicable Loan Document.
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 COMMITMENTS; MAKING OF LOANS; NOTES.
A. COMMITMENTS. Subject to the terms and conditions of this Agreement
and in reliance upon the representations and warranties of Company herein set
forth, each Lender hereby severally agrees to lend to Company from time to time
during the period from the Closing Date to but excluding the Commitment
Termination Date an aggregate amount not exceeding its Pro Rata Share of the
aggregate amount of the Revolving Loan Commitments to be used for the purposes
identified in subsection 2.5A. The original amount of each Lender's Revolving
Loan Commitment is set forth opposite its name on SCHEDULE 2.1 annexed hereto
and the aggregate original amount of the Revolving Loan Commitments is
$55,000,000; PROVIDED that anything in this Agreement to the contrary
notwithstanding (i) the aggregate Revolving Loan Commitments shall not exceed
$10,000,000 at any time on and after the Closing Date and prior to the
satisfaction of the conditions set forth in subsection 4.3 with respect to
either the Park Lane Acquisition or the Faircom Acquisition and (ii)
immediately upon satisfaction of such conditions for either the Park Lane
Acquisition or the Faircom Acquisition, as the case may be, the aggregate
Revolving Loan Commitments shall automatically increase to $55,000,000;
PROVIDED, FURTHER that the Revolving Loan Commitments of Lenders shall be
adjusted to give
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39
effect to any assignments of the Revolving Loan Commitments pursuant to
subsection 10.1B; and PROVIDED, STILL FURTHER that the amount of the Revolving
Loan Commitments shall be reduced from time to time by the amount of any
reductions thereto made pursuant to subsections 2.4A(ii), 2.4B(ii) and
2.4B(iii). Each Lender's Revolving Loan Commitment shall expire on the
Commitment Termination Date and all Revolving Loans and all other amounts owed
hereunder with respect to the Revolving Loans and the Revolving Loan
Commitments shall be paid in full no later than that date; PROVIDED that each
Lender's Revolving Loan Commitment shall expire immediately and without further
action on March 31, 1998 if the initial Revolving Loans are not made on or
before that date. Amounts borrowed under this subsection 2.1A may be repaid and
reborrowed to but excluding the Commitment Termination Date.
Anything contained in this Agreement to the contrary notwithstanding
the Revolving Loans and the Revolving Loan Commitments shall be subject to the
limitation that (i) in no event shall the aggregate Revolving Loan Exposure of
all Lenders at any time exceed the Revolving Loan Commitments then in effect
and (ii) during the period from the Effective Date to the Closing Date, no
Revolving Loans shall be made hereunder other than Revolving Loans used to
reimburse Issuing Lender for the amount of a drawing under a Letter of Credit
as provided in subsection 3.3B.
B. BORROWING MECHANICS. Revolving Loans made on any Funding Date
(other than Revolving Loans made pursuant to subsection 3.3B for the purpose of
reimbursing Issuing Lender for the amount of a drawing under a Letter of Credit
issued by it) shall be in an aggregate minimum amount of $100,000 and integral
multiples of $100,000 in excess of that amount; PROVIDED that Revolving Loans
made on any Funding Date as LIBOR Rate Loans with a particular Interest Period
shall be in an aggregate minimum amount of $500,000 and integral multiples of
$500,000 in excess of that amount. Whenever Company desires that Lenders make
Revolving Loans it shall deliver to Agent a Notice of Borrowing no later than
10:00 A.M. (New York time) at least three Business Days in advance of the
proposed Funding Date (in the case of a LIBOR Rate Loan) or at least one
Business Day in advance of the proposed Funding Date (in the case of a Base
Rate Loan). The Notice of Borrowing shall specify (i) the proposed Funding Date
(which shall be a Business Day), (ii) the amount and type of Loans requested,
(iii) whether such Loans shall be Base Rate Loans or LIBOR Rate Loans, and (iv)
in the case of any Loans requested to be made as LIBOR Rate Loans, the initial
Interest Period requested therefor. Revolving Loans may be continued as or
converted into Base Rate Loans and LIBOR Rate Loans in the manner provided in
subsection 2.2D. In lieu of delivering the above-described Notice of Borrowing,
Company may give Agent telephonic notice by the required time of any proposed
borrowing under this subsection 2.1B; PROVIDED that such notice shall be
promptly confirmed in writing by delivery of a Notice of Borrowing to Agent on
or before the applicable Funding Date.
Neither Agent nor any Lender shall incur any liability to Company in
acting upon any telephonic notice referred to above that Agent believes in good
faith to have been given by a duly authorized officer or other person
authorized to borrow on behalf of Company or for otherwise acting in good faith
under this subsection 2.1B, and upon funding of Loans by Lenders in accordance
with this Agreement pursuant to any such telephonic notice Company shall have
effected Loans hereunder.
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40
Company shall notify Agent prior to the funding of any Loans in the
event that any of the matters to which Company is required to certify in the
applicable Notice of Borrowing is no longer true and correct as of the
applicable Funding Date, and the acceptance by Company of the proceeds of any
Loans shall constitute a re-certification by Company, as of the applicable
Funding Date, as to the matters to which Company is required to certify in the
applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a
Notice of Borrowing for a LIBOR Rate Loan (or telephonic notice in lieu
thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and Company shall be bound to make a borrowing in
accordance therewith.
C. DISBURSEMENT OF FUNDS. All Loans under this Agreement shall be made
by Lenders simultaneously and proportionately to their respective Pro Rata
Shares, it being understood that no Lender shall be responsible for any default
by any other Lender in that other Lender's obligation to make a Loan requested
hereunder nor shall the Commitment of any Lender to make the particular type of
Loan requested be increased or decreased as a result of a default by any other
Lender in that other Lender's obligation to make a Loan requested hereunder.
Promptly after receipt by Agent of a Notice of Borrowing pursuant to subsection
2.1B (or telephonic notice in lieu thereof), Agent shall notify each Lender of
the proposed borrowing. Each Lender shall make the amount of its Loan available
to Agent, in same day funds in Dollars, at the Funding and Payment Office, not
later than 12:00 P.M. (New York time) on the applicable Funding Date. Except as
provided in subsection 3.3B with respect to Revolving Loans used to reimburse
Issuing Lender for the amount of a drawing under a Letter of Credit issued by
it, upon satisfaction or waiver of the conditions precedent specified in
subsections 4.2 (in the case of Loans made on the Closing Date) and 4.4 (in the
case of all Loans), Agent shall make the proceeds of such Loans available to
Company on the applicable Funding Date by causing an amount of same day funds
in Dollars equal to the proceeds of all such Loans received by Agent from
Lenders to be credited to the account of Company at the Funding and Payment
Office.
Unless Agent shall have been notified by any Lender prior to the
Funding Date for any Loans that such Lender does not intend to make available
to Agent the amount of such Lender's Loan requested on such Funding Date, Agent
may assume that such Lender has made such amount available to Agent on such
Funding Date and Agent may, in its sole discretion, but shall not be obligated
to, make available to Company a corresponding amount on such Funding Date. If
such corresponding amount is not in fact made available to Agent by such
Lender, Agent shall be entitled to recover such corresponding amount on demand
from such Lender together with interest thereon, for each day from such Funding
Date until the date such amount is paid to Agent, at the customary rate set by
Agent for the correction of errors among banks for three Business Days and
thereafter at the Base Rate. If such Lender does not pay such corresponding
amount forthwith upon Agent's demand therefor, Agent shall promptly notify
Company and Company shall immediately pay such corresponding amount to Agent
together with interest thereon, for each day from such Funding Date until the
date such amount is paid to Agent, at the rate payable under this Agreement for
Base Rate Loans. Nothing in this subsection 2.1C
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shall be deemed to relieve any Lender from its obligation to fulfill its
Commitments hereunder or to prejudice any rights that Company may have against
any Lender as a result of any default by such Lender hereunder.
D. NOTES. Company shall execute and deliver to each Lender (or to
Agent for that Lender) on the Closing Date a Revolving Note substantially in
the form of EXHIBIT IV annexed hereto to evidence that Lender's Revolving Loan,
in the principal amount of that Lender's Revolving Loans, in the principal
amount of that Lender's Revolving Loan Commitment and with other appropriate
insertions.
Agent may deem and treat the payee of any Note as the owner thereof
for all purposes hereof unless and until an assignment agreement effecting the
assignment or transfer thereof shall have been accepted by Agent as provided in
subsection 10.1B(ii). Any request, authority or consent of any person or entity
who, at the time of making such request or giving such authority or consent, is
the holder of any Note shall be conclusive and binding on any subsequent
holder, assignee or transferee of that Note or of any Note or Notes issued in
exchange therefor.
2.2 INTEREST ON THE LOANS.
A. RATE OF INTEREST. Subject to the provisions of subsections 2.6 and
2.7, each Revolving Loan shall bear interest on the unpaid principal amount
thereof from the date made through maturity (whether by acceleration or
otherwise) at a rate determined by reference to the Base Rate or the Adjusted
LIBOR Rate, as the case may be. The applicable basis for determining the rate
of interest with respect to any Loan shall be selected by Company initially at
the time a Notice of Borrowing is given with respect to such Loan pursuant to
subsection 2.1B. The basis for determining the interest rate with respect to
any Loan may be changed from time to time pursuant to subsection 2.2D. If on
any day a Loan is outstanding with respect to which notice has not been
delivered to Agent in accordance with the terms of this Agreement specifying
the applicable basis for determining the rate of interest, then for that day
that Loan shall bear interest determined by reference to the Base Rate.
Subject to the provisions of subsections 2.2E and 2.7, the Loans shall
bear interest through maturity as follows:
(i) if a Base Rate Loan, then at the sum of the Base Rate
PLUS the Applicable Margin per annum; or
(ii) if a LIBOR Rate Loan, then at the sum of the Adjusted
LIBOR Rate PLUS the Applicable Margin per annum.
The "APPLICABLE MARGIN" for each Base Rate Loan and LIBOR Rate Loan
shall be the percentage set forth below for that type of Loan based upon the
ratio of (y) Consolidated Total Debt to (z) Adjusted Consolidated Operating
Cash Flow (the "CONSOLIDATED TOTAL DEBT RATIO") as calculated in accordance
with subsection 7.6C for the applicable period:
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================================================================================
APPLICABLE MARGIN
-------------------------------
CONSOLIDATED BASE LIBOR
TOTAL DEBT RATIO RATE LOAN RATE LOAN
================================================================================
Greater than or equal to 5.50:1.0 1.25% 2.50%
--------------------------------------------------------------------------------
Greater than or equal to 5.00:1.0 but less
than 5.50:1.00: 1.00% 2.25%
--------------------------------------------------------------------------------
Greater than or equal to 4.50:1.00 but
less than 5.00:1.00 0.75% 2.00%
--------------------------------------------------------------------------------
Greater than or equal to 4.00:1.00 but
less than 4.50:1.00 0.50% 1.75%
--------------------------------------------------------------------------------
Greater than or equal to 3.50:1.00 but
less than 4.00:1.00 0.25% 1.50%
--------------------------------------------------------------------------------
Less than 3.50:1.00: 0.00% 1.25%
================================================================================
The Applicable Margin shall be adjusted, to the extent required, on
the date of delivery of each Compliance Certificate delivered pursuant to
subsection 6.1(iv), such adjustment to remain in effect until the next date of
delivery of a Compliance Certificate (and related financial information
required at such time pursuant to subsection 6.1) pursuant to subsection
6.1(iv); PROVIDED that without limiting any Event of Default or Potential Event
of Default that may result therefrom, in the event Company does not deliver any
Compliance Certificate required pursuant to subsection 6.1 by the date
specified therefor then (i) the Applicable Margin shall not be decreased until
and following the actual date of delivery thereof, and (ii) if the Applicable
Margin is required to be increased as a result of the information in such
Compliance Certificate, then such increase shall be retroactive to the date
such Compliance Certificate was originally required to be delivered hereunder;
PROVIDED FURTHER that in the event Company does not deliver any Compliance
Certificate within three Business Days after notice of such non-delivery has
been given by Agent hereunder, the Applicable Margin shall automatically be
adjusted to the highest rate set forth above during the period commencing on
the date such Compliance Certificate was required to be delivered and expiring
on the actual date of delivery thereof.
B. INTEREST PERIODS. In connection with each LIBOR Rate Loan, Company
may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
"INTEREST PERIOD") to be applicable to such Loan, which Interest Period shall
be, at Company's option, either a one, two, three, six or, subject to
availability for all Lenders, nine month period; PROVIDED that:
(i) the initial Interest Period for any LIBOR Rate Loan shall
commence on the Funding Date in respect of such Loan, in the case of a
Loan initially made as a LIBOR Rate Loan, or on the date specified in
the applicable Notice of Conversion/Continuation, in the case of a Loan
converted to a LIBOR Rate Loan;
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43
(ii) in the case of immediately successive Interest Periods
applicable to a LIBOR Rate Loan continued as such pursuant to a Notice
of Conversion/Continuation, each successive Interest Period shall
commence on the day on which the next preceding Interest Period
expires;
(iii) if an Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; PROVIDED that, if any Interest Period
would otherwise expire on a day that is not a Business Day but is a
day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the next preceding
Business Day;
(iv) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (v) of this subsection 2.2B, end on
the last Business Day of a calendar month;
(v) no Interest Period with respect to any portion of the
Revolving Loans shall extend beyond the Commitment Termination Date;
(vi) no Interest Period with respect to any portion of the
Revolving Loans shall extend beyond the date on which a permanent
reduction of the Revolving Loan Commitments is scheduled to occur
unless the sum of (a) the aggregate principal amount of Revolving
Loans that are Base Rate Loans PLUS (b) the aggregate principal amount
of Revolving Loans that are LIBOR Rate Loans with Interest Periods
expiring on or before such date PLUS (c) the excess of the Revolving
Loan Commitments then in effect over the aggregate principal amount of
Revolving Loans then outstanding equals or exceeds the permanent
reduction of the Revolving Loan Commitments that is scheduled to occur
on such date;
(vii) there shall be no more than four (4) Interest Periods
outstanding at any time; and
(viii) in the event Company fails to specify an Interest
Period for any LIBOR Rate Loan in the applicable Notice of Borrowing
or Notice of Conversion/Continuation, Company shall be deemed to have
selected an Interest Period of one month.
C. INTEREST PAYMENTS. Subject to the provisions of subsection 2.2E,
interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity (including final
maturity); PROVIDED that in the event any Revolving Loans that are Base Rate
Loans are prepaid pursuant to subsection 2.4B(i), interest accrued on such
Revolving Loans through the date of such prepayment shall be payable on the
next succeeding Interest Payment Date applicable to Base Rate Loans (or, if
earlier, at final maturity).
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44
D. CONVERSION OR CONTINUATION. Subject to the provisions of subsection
2.6, Company shall have the option (i) to convert at any time all or any part
of its outstanding Revolving Loans equal to $500,000 and integral multiples of
$500,000 in excess of that amount from Loans bearing interest at a rate
determined by reference to one basis to Loans bearing interest at a rate
determined by reference to an alternative basis or (ii) upon the expiration of
any Interest Period applicable to a LIBOR Rate Loan, to continue all or any
portion of such Loan equal to $500,000 and integral multiples of $500,000 in
excess of that amount as a LIBOR Rate Loan; PROVIDED, HOWEVER, that a LIBOR
Rate Loan may only be converted into a Base Rate Loan on the expiration date of
an Interest Period applicable thereto; and PROVIDED, FURTHER that no Loan may
be made as or converted into a Base Rate Loan during the period from December
24 of any year to and including January 7 of the immediately succeeding year
for the purpose of investing in securities bearing interest at a rate
determined by reference to any other basis for the purpose of arbitrage or
speculation.
Company shall deliver a Notice of Conversion/Continuation to Agent no
later than 10:00 A.M. (New York time) at least one Business Day in advance of
the proposed conversion date (in the case of a conversion to a Base Rate Loan)
and at least three Business Days in advance of the proposed
conversion/continuation date (in the case of a conversion to, or a continuation
of, a LIBOR Rate Loan). A Notice of Conversion/Continuation shall specify (i)
the proposed conversion/continuation date (which shall be a Business Day), (ii)
the amount and type of the Loan to be converted/continued, (iii) the nature of
the proposed conversion/continuation, (iv) in the case of a conversion to, or a
continuation of, a LIBOR Rate Loan, the requested Interest Period, and (v) in
the case of a conversion to, or a continuation of, a LIBOR Rate Loan, that no
Potential Event of Default or Event of Default has occurred and is continuing.
In lieu of delivering the above-described Notice of Conversion/Continuation,
Company may give Agent telephonic notice by the required time of any proposed
conversion/continuation under this subsection 2.2D; PROVIDED that such notice
shall be promptly confirmed in writing by delivery of a Notice of
Conversion/Continuation to Agent on or before the proposed
conversion/continuation date.
Neither Agent nor any Lender shall incur any liability to Company in
acting upon any telephonic notice referred to above that Agent believes in good
faith to have been given by a duly authorized officer or other person
authorized to act on behalf of Company or for otherwise acting in good faith
under this subsection 2.2D, and upon conversion or continuation of the
applicable basis for determining the interest rate with respect to any Loans in
accordance with this Agreement pursuant to any such telephonic notice Company
shall have effected a conversion or continuation, as the case may be,
hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a
Notice of Conversion/Continuation for conversion to, or continuation of, a
LIBOR Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable on
and after the related Interest Rate Determination Date, and Company shall be
bound to effect a conversion or continuation in accordance therewith.
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45
E. DEFAULT RATE. Upon the occurrence and during the continuation of
any Event of Default, the outstanding principal amount of all Loans and, to the
extent permitted by applicable law, any interest payments thereon not paid when
due and any fees and other amounts then due and payable hereunder, shall
thereafter bear interest (including post-petition interest in any proceeding
under the Bankruptcy Code or other applicable bankruptcy laws) payable upon
demand at a rate that is 2% per annum in excess of the interest rate otherwise
payable under this Agreement with respect to the applicable Loans (or, in the
case of any such fees and other amounts, at a rate which is 2% per annum in
excess of the interest rate otherwise payable under this Agreement for Base
Rate Loans); PROVIDED that, in the case of LIBOR Rate Loans, upon the
expiration of the Interest Period in effect at the time any such increase in
interest rate is effective such LIBOR Rate Loans shall thereupon become Base
Rate Loans and shall thereafter bear interest payable upon demand at a rate
which is 2% per annum in excess of the interest rate otherwise payable under
this Agreement for Base Rate Loans. Payment or acceptance of the increased
rates of interest provided for in this subsection 2.2E is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event of
Default or otherwise prejudice or limit any rights or remedies of Agent or any
Lender.
F. COMPUTATION OF INTEREST. Interest on the Loans shall be computed
(i) in the case of Base Rate Loans, on the basis of a 365-day or 366-day year,
as the case may be, and (ii) in the case of LIBOR Rate Loans, on the basis of a
360-day year, in each case for the actual number of days elapsed in the period
during which it accrues. In computing interest on any Loan, the date of the
making of such Loan or the first day of an Interest Period applicable to such
Loan or, with respect to a Base Rate Loan being converted from a LIBOR Rate
Loan, the date of conversion of such LIBOR Rate Loan to such Base Rate Loan, as
the case may be, shall be included, and the date of payment of such Loan or the
expiration date of an Interest Period applicable to such Loan or, with respect
to a Base Rate Loan being converted to a LIBOR Rate Loan, the date of
conversion of such Base Rate Loan to such LIBOR Rate Loan, as the case may be,
shall be excluded; PROVIDED that if a Loan is repaid on the same day on which
it is made, one day's interest shall be paid on that Loan.
2.3 FEES.
A. COMMITMENT FEES. Company agrees to pay to Agent, for distribution
to each Lender in proportion to that Lender's Pro Rata Share, commitment fees
for the period from and including the Closing Date to and excluding the
Commitment Termination Date, equal to the average of the daily excess of the
Revolving Loan Commitments over the aggregate Revolving Loan Exposure of all
Lenders MULTIPLIED BY the percentage set forth below (the "COMMITMENT FEE
PERCENTAGE") based upon the Consolidated Total Debt Ratio, such commitment fees
to be calculated on the basis of a 360-day year and the actual number of days
elapsed and to be payable quarterly in arrears on March 31, June 30, September
30 and December 31 of each year, commencing on the first such date to occur
after the Closing Date, and also payable (and terminating) on the Commitment
Termination Date:
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==================================================================
CONSOLIDATED
TOTAL DEBT RATIO COMMITMENT FEE
PERCENTAGE
==================================================================
Greater than or equal to 4.00:1.00 0.500%
------------------------------------------------------------------
Less than 4.00:1.00 0.375%
==================================================================
The Commitment Fee Percentage shall be adjusted, to the extent
required, on the date of delivery of each Compliance Certificate delivered
pursuant to subsection 6.1(iv), such adjustment to remain in effect until the
next date of delivery of a Compliance Certificate (and related financial
information required at such time pursuant to subsection 6.1) pursuant to
subsection 6.1(iv); PROVIDED that without limiting any Event of Default or
Potential Event of Default that may result therefrom, in the event Borrowers do
not deliver any Compliance Certificate required pursuant to subsection 6.1 by
the date specified therefor then (i) the Commitment Fee Percentage shall not be
decreased until and following the actual date of delivery thereof, and (ii) if
the Commitment Fee Percentage is required to be increased as a result of the
information in such Compliance Certificate, then such increase shall be
retroactive to the date such Compliance Certificate was originally required to
be delivered hereunder; PROVIDED FURTHER that in the event Borrowers do not
deliver any Compliance Certificate within three Business Days after notice of
such non-delivery has been given by Agent hereunder, the Commitment Fee
Percentage shall automatically be adjusted to the highest rate set forth above
during the period commencing on the date such Compliance Certificate was
required to be delivered and expiring on the actual date of delivery thereof.
B. OTHER FEES. Company agrees to pay to Agent such other fees in the
amounts and at the times separately agreed upon between Company and Agent.
2.4 REPAYMENTS, PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN COMMITMENTS;
GENERAL PROVISIONS REGARDING PAYMENTS.
A. SCHEDULED REDUCTIONS OF REVOLVING LOAN COMMITMENTS. The Revolving
Loan Commitments shall be permanently reduced on the dates and in the amounts
set forth below:
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==============================================================
QUARTER SCHEDULED REDUCTION
ENDING OF REVOLVING
LOAN COMMITMENTS
--------------------------------------------------------------
December 31, 1998 $ 687,500
--------------------------------------------------------------
March 31, 1998 $ 687,500
--------------------------------------------------------------
June 30, 1999 $ 687,500
--------------------------------------------------------------
September 30, 1999 $ 687,500
--------------------------------------------------------------
December 31, 1999 $ 1,718,750
--------------------------------------------------------------
March 31, 2000 $ 1,718,750
--------------------------------------------------------------
June 30, 2000 $ 1,718,750
--------------------------------------------------------------
September 30, 2000 $ 1,718,750
--------------------------------------------------------------
December 31, 2000 $ 2,062,500
--------------------------------------------------------------
March 31, 2001 $ 2,062,500
--------------------------------------------------------------
June 30, 2001 $ 2,062,500
--------------------------------------------------------------
September 30, 2001 $ 2,062,500
--------------------------------------------------------------
December 31, 2001 $ 2,406,250
--------------------------------------------------------------
March 31, 2002 $ 2,406,250
--------------------------------------------------------------
June 30, 2002 $ 2,406,250
--------------------------------------------------------------
September 30, 2002 $ 2,406,250
--------------------------------------------------------------
December 31, 2002 $ 2,406,250
--------------------------------------------------------------
March 31, 2003 $ 2,406,250
--------------------------------------------------------------
June 30, 2003 $ 2,406,250
--------------------------------------------------------------
September 30, 2003 $ 2,406,250
--------------------------------------------------------------
December 31, 2003 $2,750,000
--------------------------------------------------------------
March 31, 2004 $2,750,000
--------------------------------------------------------------
June 30, 2004 $2,750,000
--------------------------------------------------------------
September 30, 2004 $2,750,000
--------------------------------------------------------------
December 31, 2004 $3,437,500
--------------------------------------------------------------
March 31, 2005 $3,437,500
==============================================================
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; PROVIDED that the scheduled reductions of the Revolving Loan
Commitments set forth above shall be reduced in connection with any
voluntary or mandatory reductions of the Revolving Loan Commitments in
accordance with subsection 2.4B(iv).
B. PREPAYMENTS AND UNSCHEDULED REDUCTIONS IN LOANS AND
COMMITMENTS.
(i) VOLUNTARY PREPAYMENTS. Company may, upon not less than
one Business Day's prior written or telephonic notice, in the case of
Base Rate Loans, and three Business Days' prior written or telephonic
notice, in the case of LIBOR Rate Loans, in each case given to Agent
by 10:00 A.M. (New York time) on the date required and, if given by
telephone, promptly confirmed in writing to Agent (which original
written or telephonic notice Agent will promptly transmit by
telefacsimile or telephone to each Lender), at any time and from time
to time prepay without premium or penalty (other than breakage and
other costs with respect to LIBOR Rate Loans, to the extent
applicable, as set forth in subsection 2.6) any Loans on any Business
Day in whole or in part in an aggregate minimum amount of $500,000 and
integral multiples of $500,000 in excess of that amount; PROVIDED,
HOWEVER, that a LIBOR Rate Loan may only be prepaid on the expiration
of the Interest Period applicable thereto. Notice of prepayment having
been given as aforesaid, the principal amount of the Loans specified
in such notice shall become due and payable on the prepayment date
specified therein. Any such voluntary prepayment shall be applied as
specified in subsection 2.4B(iv).
(ii) VOLUNTARY REDUCTIONS OF REVOLVING LOAN COMMITMENTS.
Company may, upon not less than three Business Days' prior written or
telephonic notice confirmed in writing to Agent (which original
written or telephonic notice Agent will promptly transmit by
telefacsimile or telephone to each Lender), at any time and from time
to time terminate in whole or permanently reduce in part, without
premium or penalty, the Revolving Loan Commitments in an amount up to
the amount by which the Revolving Loan Commitments exceed the Total
Utilization of Revolving Loan Commitments at the time of such proposed
termination or reduction; PROVIDED that any such partial reduction of
the Revolving Loan Commitments shall be in an aggregate minimum amount
of $500,000 and integral multiples of $500,000 in excess of that
amount. Company's notice to Agent shall designate the date (which
shall be a Business Day) of such termination or reduction and the
amount of any partial reduction, and such termination or reduction of
the Revolving Loan Commitments shall be effective on the date
specified in Company's notice and shall reduce the Revolving Loan
Commitment of each Lender proportionately to its Pro Rata Share. Any
such voluntary reduction of the Revolving Loan Commitments shall be
applied as specified in subsection 2.4B(iv).
(iii) MANDATORY PREPAYMENTS AND MANDATORY REDUCTIONS OF LOANS
AND COMMITMENTS.
(a) PREPAYMENTS AND REDUCTIONS FROM ASSET SALES. On
the same Business Day a Credit Party or any of its
Subsidiaries receives Cash Proceeds of
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any Asset Sale, Company shall prepay the Revolving Loans and
the Revolving Loan Commitments shall be permanently reduced
in an amount equal to the Net Cash Proceeds of such Asset
Sale. Concurrently with any prepayment of the Loans and the
reduction of the Revolving Loan Commitments pursuant to this
subsection 2.4B(iii)(a), Company shall deliver to Agent an
Officers' Certificate demonstrating the derivation of the Net
Cash Proceeds of the correlative Asset Sale from the gross
sales price thereof. In the event that Company shall, at any
time after receipt of Cash Proceeds of any Asset Sale
requiring a prepayment and a reduction of the Revolving Loan
Commitments pursuant to this subsection 2.4B(iii)(a),
determine that the prepayments and the reductions of the
Revolving Loan Commitments previously made in respect of such
Asset Sale were in an aggregate amount less than that
required by the terms of this subsection 2.4B(iii)(a),
Company shall promptly make an additional prepayment of the
Revolving Loans (and the Revolving Loan Commitments shall be
permanently reduced), in the manner described above in an
amount equal to the amount of any such deficit, and Company
shall concurrently therewith deliver to Agent an Officers'
Certificate demonstrating the derivation of the additional
Net Cash Proceeds resulting in such deficit. Any mandatory
prepayments or reductions of the Revolving Loan Commitments
pursuant to this subsection 2.4B(iii)(a) shall be applied as
specified in subsection 2.4B(iv).
(b) PREPAYMENTS AND REDUCTIONS DUE TO REVERSION OF
SURPLUS ASSETS OF PENSION PLANS. On the date of return to any
Credit Party or any of its Subsidiaries of any surplus assets
of any pension plan of such Credit Party or any of its
Subsidiaries, Company shall prepay the Revolving Loans in an
amount (the "NET REVERSION AMOUNT") equal to 100% of such
returned surplus assets, net of transaction costs and
expenses incurred in obtaining such return, including
incremental taxes payable as a result thereof. Any such
mandatory prepayments shall be applied as specified in
subsection 2.4B(iv).
(c) PREPAYMENTS AND REDUCTIONS DUE TO ISSUANCE OF
EQUITY SECURITIES. In the event that the Consolidated Total
Debt Ratio at such time (prior to making any payments
required hereunder) is greater than 4.50:1.00 on the date of
receipt by any Credit Party of cash proceeds (net of
underwriting discounts and commissions and other reasonable
costs associated therewith), from one or more issuances of
any equity Securities of such Credit Party (other than
Refinancing Proceeds and Acquisition Proceeds) Company shall
prepay the Revolving Loans and the Revolving Loan Commitments
shall be permanently reduced by the amount of such net equity
proceeds up to the amount necessary to make the Consolidated
Total Debt Ratio equal to or less than 4.50:1.00 (calculated
on a pro forma basis after giving effect to such prepayment
as of the end of the most recently concluded Fiscal Quarter).
Any such mandatory prepayments or reductions of the Revolving
Loan Commitments shall be applied as specified in subsection
2.4B(iv).
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(d) PREPAYMENTS DUE TO REDUCTIONS OR RESTRICTIONS OF
REVOLVING LOAN COMMITMENTS. Company shall from time to time
prepay the Revolving Loans to the extent necessary so that
the Total Utilization of Revolving Loan Commitments shall not
at any time exceed the Revolving Loan Commitments then in
effect. Any such mandatory prepayments shall be applied as
specified in subsection 2.4B(iv).
(e) PREPAYMENTS AND REDUCTIONS DUE TO INSURANCE
PROCEEDS. No later than the 120th Business Day following the
date of receipt by any Credit Party of any cash payments
under any of the insurance policies maintained pursuant to
subsection 6.4 ("INSURANCE PROCEEDS") which have not been
reinvested (as soon as practicable and, in any event, within
120 days from the date of receipt thereof) in productive
assets of a kind then used or usable in the business of such
Credit Party or used to maintain the business of such Credit
Party as a going concern as a consequence of any business
interruption, Company shall reduce the Revolving Loan
Commitments in an amount equal to the aggregate amount of
such Insurance Proceeds in the manner specified in subsection
2.4B(iv)(b) and 2.4B(iv)(d); PROVIDED that, notwithstanding
any of the foregoing to the contrary, upon and during the
continuance of an Event of Default, and upon notice from
Agent or Requisite Lenders, all Insurance Proceeds,
regardless of reinvestment or other use, received by Company
shall be applied to reduce the Revolving Loan Commitments in
the manner specified in subsection 2.4B(iv)(b).
(iv) APPLICATION OF PREPAYMENTS AND UNSCHEDULED REDUCTIONS OF
REVOLVING LOAN COMMITMENTS.
(a) APPLICATION OF VOLUNTARY PREPAYMENTS BY TYPE OF
LOANS AND ORDER OF MATURITY. Any voluntary prepayments
pursuant to subsection 2.4B(i) shall be applied as specified
by Company in the applicable notice of prepayment.
(b) APPLICATION OF MANDATORY PREPAYMENTS BY TYPE OF
LOANS. Any amount (the "APPLIED AMOUNT") required to be
applied as a mandatory prepayment of the Loans and a
reduction of the Revolving Loan Commitments pursuant to
subsections 2.4B(iii)(a) and 2.4B(iii)(c)-(e) shall be
applied (based on the amount of the Revolving Loan
Commitments in effect at such time) to prepay the Revolving
Loans and to further permanently reduce the Revolving Loan
Commitments by the amount of such prepayment. The Applied
Amount required to be applied as a mandatory prepayment of
the Loans pursuant to subsection 2.4B(iii)(b) shall be
applied to prepay the Revolving Loans but shall not reduce
the Revolving Loan Commitments.
(c) APPLICATION OF PREPAYMENTS TO BASE RATE LOANS
AND LIBOR RATE LOANS. Prepayments of Revolving Loans shall be
applied first to Base Rate Loans to the full extent thereof
before application to LIBOR Rate Loans, in a
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manner which minimizes the amount of any payments required to
be made by Company pursuant to subsection 2.6D.
(d) APPLICATION OF UNSCHEDULED REDUCTIONS OF
REVOLVING LOAN COMMITMENTS. Any voluntary reduction of the
Revolving Loan Commitments pursuant to subsection 2.4B(ii)
shall be applied to reduce the scheduled reductions of the
Revolving Loan Commitments set forth in subsection 2.4A(ii)
in forward chronological order. Any mandatory reduction of
the Revolving Loan Commitments pursuant to subsection
2.4B(iii) shall be applied pro rata to each scheduled
reduction of the Revolving Loan Commitments set forth in
subsection 2.4A that is remaining at the time of such
mandatory reduction.
C. GENERAL PROVISIONS REGARDING PAYMENTS.
(i) MANNER AND TIME OF PAYMENT. All payments by Company of
principal, interest, fees and other Obligations hereunder and under
the Notes shall be made in Dollars in same day funds, without defense,
setoff or counterclaim, free of any restriction or condition, and
delivered to Agent not later than 12:00 Noon (New York time) on the
date due at the Funding and Payment Office for the account of Lenders;
funds received by Agent after that time on such due date shall be
deemed to have been paid by Company on the next succeeding Business
Day. Company hereby authorizes Agent to charge its accounts with Agent
in order to cause timely payment to be made to Agent of all principal,
interest, fees and expenses due hereunder (subject to sufficient funds
being available in its accounts for that purpose).
(ii) APPLICATION OF PAYMENTS TO PRINCIPAL AND INTEREST. All
payments in respect of the principal amount of any Loan shall include
payment of accrued interest on the principal amount being repaid or
prepaid, and all such payments shall be applied to the payment of
interest before application to principal.
(iii) APPORTIONMENT OF PAYMENTS. Aggregate principal and
interest payments shall be apportioned among all outstanding Loans to
which such payments relate, in each case proportionately to Lenders'
respective Pro Rata Shares. Agent shall promptly distribute to each
Lender, at its primary address set forth below its name on the
appropriate signature page hereof or at such other address as such
Lender may request, its Pro Rata Share of all such payments received
by Agent and the commitment fees of such Lender when received by Agent
pursuant to subsection 2.3. Notwithstanding the foregoing provisions
of this subsection 2.4C(iii), if, pursuant to the provisions of
subsection 2.6C, any Notice of Conversion/Continuation is withdrawn as
to any Affected Lender or if any Affected Lender makes Base Rate Loans
in lieu of its Pro Rata Share of any LIBOR Rate Loans, Agent shall
give effect thereto in apportioning payments received thereafter.
(iv) PAYMENTS ON BUSINESS DAYS. Whenever any payment to be
made hereunder shall be stated to be due on a day that is not a
Business Day, such payment
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shall be made on the next succeeding Business Day and such extension
of time shall be included in the computation of the payment of
interest hereunder or of the commitment fees hereunder, as the case
may be.
(v) NOTATION OF PAYMENT. Each Lender agrees that before
disposing of any Note held by it, or any part thereof (other than by
granting participations therein), that Lender will make a notation
thereon of all Loans evidenced by that Note and all principal payments
previously made thereon and of the date to which interest thereon has
been paid; PROVIDED that the failure to make (or any error in the
making of) a notation of any Loan made under such Note shall not limit
or otherwise affect the obligations of Company hereunder or under such
Note with respect to any Loan or any payments of principal or interest
on such Note.
2.5 USE OF PROCEEDS.
A. REVOLVING LOANS. The proceeds of any Revolving Loans shall be
applied by Company (i) to consummate Permitted Acquisitions (including
repayment of outstanding debt of Faircom), (ii) to pay fees and expenses
related thereto, (iii) to fund capital expenditures, and (iv) for working
capital purposes, including the payment of a portion of the fees and expenses
on the Closing Date.
B. MARGIN REGULATIONS. No portion of the proceeds of any borrowing
under this Agreement shall be used by Company or any of its Subsidiaries in any
manner that might cause the borrowing or the application of such proceeds to
violate Regulation G, Regulation U, Regulation T or Regulation X of the Board
of Governors of the Federal Reserve System or any other regulation of such
Board or to violate the Exchange Act, in each case as in effect on the date or
dates of such borrowing and such use of proceeds.
2.6 SPECIAL PROVISIONS GOVERNING LIBOR RATE LOANS.
Notwithstanding any other provision of this Agreement to the contrary,
the following provisions shall govern with respect to LIBOR Rate Loans as to
the matters covered:
A. DETERMINATION OF APPLICABLE INTEREST RATE. As soon as practicable
after 10:00 A.M. (New York time) on each Interest Rate Determination Date,
Agent shall determine (which determination shall, absent manifest error, be
final, conclusive and binding upon all parties) the interest rate that shall
apply to the LIBOR Rate Loans for which an interest rate is then being
determined for the applicable Interest Period and shall promptly give notice
thereof (in writing or by telephone confirmed in writing) to Company and each
Lender.
B. INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the event that
Agent shall have determined (which determination shall be final and conclusive
and binding upon all parties hereto), on any Interest Rate Determination Date
with respect to any LIBOR Rate Loans, that by reason of circumstances affecting
the London interbank market adequate and fair means do
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not exist for ascertaining the interest rate applicable to such Loans on the
basis provided for in the definition of Adjusted LIBOR Rate, Agent shall on
such date give notice (by telefacsimile or by telephone confirmed in writing)
to Company and each Lender of such determination, whereupon (i) no Loans may be
made as, or converted to, LIBOR Rate Loans until such time as Agent notifies
Company and Lenders that the circumstances giving rise to such notice no longer
exist and (ii) any Notice of Borrowing or Notice of Conversion/Continuation
given by Company with respect to the Loans in respect of which such
determination was made shall be deemed to be rescinded by Company.
C. ILLEGALITY OR IMPRACTICABILITY OF LIBOR RATE LOANS. In the event
that on any date any Lender shall have determined (which determination shall be
final and conclusive and binding upon all parties hereto but shall be made only
after consultation with Company and Agent) that the making, maintaining or
continuation of its LIBOR Rate Loans (i) has become unlawful as a result of
compliance by such Lender in good faith with any law, treaty, governmental
rule, regulation, guideline or order (or would conflict with any such treaty,
governmental rule, regulation, guideline or order not having the force of law
even though the failure to comply therewith would not be unlawful) or (ii) has
become impracticable, or would cause such Lender material hardship, as a result
of contingencies occurring after the date of this Agreement which materially
and adversely affect the London interbank market or the position of such Lender
in that market, then, and in any such event, such Lender shall be an "AFFECTED
LENDER" and it shall on that day give notice (by telefacsimile or by telephone
confirmed in writing) to Company and Agent of such determination (which notice
Agent shall promptly transmit to each other Lender). Thereafter (a) the
obligation of the Affected Lender to make Loans as, or to convert Loans to,
LIBOR Rate Loans shall be suspended until such notice shall be withdrawn by the
Affected Lender, (b) to the extent such determination by the Affected Lender
relates to a LIBOR Rate Loan then being requested by Company pursuant to a
Notice of Borrowing or a Notice of Conversion/Continuation, the Affected Lender
shall make such Loan as (or convert such Loan to, as the case may be) a Base
Rate Loan, (c) the Affected Lender's obligation to maintain its outstanding
LIBOR Rate Loans (the "AFFECTED LOANS") shall be terminated at the earlier to
occur of the expiration of the Interest Period then in effect with respect to
the Affected Loans or when required by law, and (d) the Affected Loans shall
automatically convert into Base Rate Loans on the date of such termination.
Notwithstanding the foregoing, to the extent a determination by an Affected
Lender as described above relates to a LIBOR Rate Loan then being requested by
Company pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, Company shall have the option, subject to the
provisions of subsection 2.6D, to rescind such Notice of Borrowing or Notice of
Conversion/Continuation as to all Lenders by giving notice (by telefacsimile or
by telephone confirmed in writing) to Agent of such rescission on the date on
which the Affected Lender gives notice of its determination as described above
(which notice of rescission Agent shall promptly transmit to each other
Lender). Except as provided in the immediately preceding sentence, nothing in
this subsection 2.6C shall affect the obligation of any Lender other than an
Affected Lender to make or maintain Loans as, or to convert Loans to, LIBOR
Rate Loans in accordance with the terms of this Agreement.
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D. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST PERIODS.
Company shall compensate each Lender, upon written request by that Lender
(which request shall set forth the basis for requesting such amounts), for all
reasonable losses, expenses and liabilities (including, without limitation, any
interest paid by that Lender to lenders of funds borrowed by it to make or
carry its LIBOR Rate Loans and any loss, expense or liability sustained by that
Lender in connection with the liquidation or re-employment of such funds) which
that Lender may sustain: (i) if for any reason (other than a default by that
Lender) a borrowing of any LIBOR Rate Loan does not occur on a date specified
therefor in a Notice of Borrowing or a telephonic request for borrowing, or a
conversion to or continuation of any LIBOR Rate Loan does not occur on a date
specified therefor in a Notice of Conversion/Continuation or a telephonic
request for conversion or continuation, (ii) if any prepayment or other
principal payment or any conversion of any of its LIBOR Rate Loans occurs on a
date prior to the last day of an Interest Period applicable to that Loan, (iii)
if any prepayment of any of its LIBOR Rate Loans is not made on any date
specified in a notice of prepayment given by Company, or (iv) as a consequence
of any other default by Company in the repayment of its LIBOR Rate Loans when
required by the terms of this Agreement.
E. BOOKING OF LIBOR RATE LOANS. Any Lender may make, carry or transfer
LIBOR Rate Loans at, to, or for the account of any of its branch offices or the
office of an Affiliate of that Lender, but in any such event without
discharging Lender from its obligations to make Loans subject to and in
accordance with the provisions of the Loan Documents.
F. ASSUMPTIONS CONCERNING FUNDING OF LIBOR RATE LOANS. Calculation of
all amounts payable to a Lender under this subsection 2.6 and under subsection
2.7A shall be made as though that Lender had actually funded each of its
relevant LIBOR Rate Loans through the purchase of a LIBOR deposit bearing
interest at the rate obtained pursuant to clause (i) of the definition of
Adjusted LIBOR Rate in an amount equal to the amount of such LIBOR Rate Loan
and having a maturity comparable to the relevant Interest Period and through
the transfer of such LIBOR deposit from an offshore office of that Lender to a
domestic office of that Lender in the United States of America; PROVIDED,
HOWEVER, that each Lender may fund each of its LIBOR Rate Loans in any manner
it sees fit and the foregoing assumptions shall be utilized only for the
purposes of calculating amounts payable under this subsection 2.6 and under
subsection 2.7A.
G. LIBOR RATE LOANS AFTER DEFAULT. After the occurrence of and during
the continuation of a Potential Event of Default or an Event of Default, (i)
Company may not elect to have a Loan be made or maintained as, or converted to,
a LIBOR Rate Loan after the expiration of any Interest Period then in effect
for that Loan and (ii) subject to the provisions of subsection 2.6D, any Notice
of Borrowing or Notice of Conversion/Continuation given by Company with respect
to a requested borrowing or conversion/continuation that has not yet occurred
shall be deemed to be rescinded by Company.
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
A. COMPENSATION FOR INCREASED COSTS AND TAXES. Subject to the
provisions of subsection 2.7B, in the event that any Lender shall determine
(which determination shall, absent
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manifest error, be final and conclusive and binding upon all parties hereto)
that any law, treaty or governmental rule, regulation or order, or any change
therein or in the interpretation, administration or application thereof
(including the introduction of any new law, treaty or governmental rule,
regulation or order), or any determination of a court or governmental
authority, in each case that becomes effective after the date hereof, or
compliance by such Lender with any guideline, request or directive issued or
made after the date hereof by any central bank or other governmental or
quasi-governmental authority (whether or not having the force of law):
(i) subjects such Lender (or its applicable lending office)
to any additional Tax (other than any Tax on the overall net income of
such Lender) with respect to this Agreement or any of its obligations
hereunder or any payments to such Lender (or its applicable lending
office) of principal, interest, fees or any other amount payable
hereunder;
(ii) imposes, modifies or holds applicable any reserve
(including without limitation any marginal, emergency, supplemental,
special or other reserve), special deposit, compulsory loan, FDIC
insurance or similar requirement against assets held by, or deposits
or other liabilities in or for the account of, or advances or loans
by, or other credit extended by, or any other acquisition of funds by,
any office of such Lender (other than any such reserve or other
requirements with respect to LIBOR Rate Loans that are reflected in
the definition of Adjusted LIBOR Rate); or
(iii) imposes any other condition (other than with respect to
a Tax matter) on or affecting such Lender (or its applicable lending
office) or its obligations hereunder or the London interbank market;
and the result of any of the foregoing is to increase the cost to such Lender
of agreeing to make, making or maintaining Loans hereunder or to reduce any
amount received or receivable by such Lender (or its applicable lending office)
with respect thereto; then, in any such case, Company shall promptly pay to
such Lender, upon receipt of the statement referred to in the next sentence,
such additional amount or amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
sole discretion shall determine) as may be necessary to compensate such Lender
for any such increased cost or reduction in amounts received or receivable
hereunder. Such Lender shall deliver to Company (with a copy to Agent) a
written statement, setting forth in reasonable detail the basis for calculating
the additional amounts owed to such Lender under this subsection 2.7A, which
statement shall be conclusive and binding upon all parties hereto absent
manifest error.
B. WITHHOLDING OF TAXES.
(i) PAYMENTS TO BE FREE AND CLEAR. All sums payable by
Company under this Agreement and the other Loan Documents shall be
paid free and clear of and (except to the extent required by law)
without any deduction or withholding on account of any Tax (other than
a Tax on the overall net income of any Lender) imposed, levied,
collected,
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withheld or assessed by or within the United States of America or any
political subdivision in or of the United States of America or any
other jurisdiction from or to which a payment is made by or on behalf
of Company or by any federation or organization of which the United
States of America or any such jurisdiction is a member at the time of
payment.
(ii) GROSSING-UP OF PAYMENTS. If Company or any other Person
is required by law to make any deduction or withholding on account of
any such Tax from any sum paid or payable by Company to Agent or any
Lender under any of the Loan Documents:
(a) Company shall notify Agent of any such
requirement or any change in any such requirement promptly
after the Company becomes aware of it;
(b) Company shall pay any such Tax before the date
on which penalties attach thereto, such payment to be made
(if the liability to pay is imposed on Company) for its own
account or (if that liability is imposed on Agent or such
Lender, as the case may be) on behalf of and in the name of
Agent or such Lender;
(c) the sum payable by Company in respect of which
the relevant deduction, withholding or payment is required
shall be increased to the extent necessary to ensure that,
after the making of that deduction, withholding or payment,
Agent or such Lender, as the case may be, receives on the due
date a net sum equal to what it would have received had no
such deduction, withholding or payment been required or made;
and
(d) within 30 days after paying any sum from which
it is required by law to make any deduction or withholding,
and within 30 days after the due date of payment of any Tax
which it is required by clause (b) above to pay, Company
shall deliver to Agent evidence satisfactory to the other
affected parties of such deduction, withholding or payment
and of the remittance thereof to the relevant taxing or other
authority;
PROVIDED that no such additional amount shall be required to be paid
to any Lender under clause (c) above except to the extent that any
change after the date hereof (in the case of each Lender listed on the
signature pages hereof) or after the date of the assignment agreement
pursuant to which such Lender became a Lender (in the case of each
other Lender) in any such requirement for a deduction, withholding or
payment as is mentioned therein shall result in an increase in the
rate of such deduction, withholding or payment from that in effect at
the date of this Agreement or at the date of such assignment
agreement, as the case may be, in respect of payments to such Lender.
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(iii) EVIDENCE OF EXEMPTION FROM U.S. WITHHOLDING TAX.
(a) Each Lender that is organized under the laws of
any jurisdiction other than the United States or any state or
other political subdivision thereof (for purposes of this
subsection 2.7B(iii), a "NON-US LENDER") shall deliver to
Agent for transmission to Company, on or prior to the Closing
Date (in the case of each Lender listed on the signature
pages hereof) or on the date of the assignment agreement
pursuant to which it becomes a Lender (in the case of each
other Lender), and at such other times as may be necessary in
the determination of Company or Agent (each in the reasonable
exercise of its discretion), (1) two original copies of
Internal Revenue Service Form 1001 or 4224 (or any successor
forms), properly completed and duly executed by such Lender,
together with any other certificate or statement of exemption
required under the Internal Revenue Code or the regulations
issued thereunder to establish that such Lender is not
subject to deduction or withholding of United States federal
income tax with respect to any payments to such Lender of
principal, interest, fees or other amounts payable under any
of the Loan Documents or (2) if such Lender is not a "bank"
or other Person described in Section 881(c)(3) of the
Internal Revenue Code and cannot deliver either Internal
Revenue Service Form 1001 or 4224 pursuant to clause (1)
above, a Certificate re Non-Bank Status together with two
original copies of Internal Revenue Service Form W-8 (or any
successor form), properly completed and duly executed by such
Lender, together with any other certificate or statement of
exemption required under the Internal Revenue Code or the
regulations issued thereunder to establish that such Lender
is not subject to deduction or withholding of United States
federal income tax with respect to any payments to such
Lender of interest payable under any of the Loan Documents.
(b) Each Lender required to deliver any forms,
certificates or other evidence with respect to United States
federal income tax withholding matters pursuant to subsection
2.7B(iii)(a) hereby agrees, from time to time after the
initial delivery by such Lender of such forms, certificates
or other evidence, whenever a lapse in time or change in
circumstances renders such forms, certificates or other
evidence obsolete or inaccurate in any material respect, such
Lender shall (1) deliver to Agent for transmission to Company
two new original copies of Internal Revenue Service Form 1001
or 4224, or a Certificate re Non- Bank Status and two
original copies of Internal Revenue Service Form W-8, as the
case may be, properly completed and duly executed by such
Lender, together with any other certificate or statement of
exemption required in order to confirm or establish that such
Lender is not subject to deduction or withholding of United
States federal income tax with respect to payments to such
Lender under the Loan Documents or (2) immediately notify
Agent and Company of its inability to deliver any such forms,
certificates or other evidence.
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(c) Company shall not be required to pay any
additional amount to any Non-US Lender under clause (c) of
subsection 2.7B(ii) if such Lender shall have failed to
satisfy the requirements of subsection 2.7B(iii)(a); PROVIDED
that if such Lender shall have satisfied such requirements on
the Closing Date (in the case of each Lender listed on the
signature pages hereof) or on the date of the assignment
agreement pursuant to which it became a Lender (in the case
of each other Lender), nothing in this subsection
2.7B(iii)(c) shall relieve Company of its obligation to pay
any additional amounts pursuant to clause (c) of subsection
2.7B(ii) in the event that, as a result of any change in any
applicable law, treaty or governmental rule, regulation or
order, or any change in the interpretation, administration or
application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at
a subsequent date establishing the fact that such Lender is
not subject to withholding as described in subsection
2.7B(iii)(a).
C. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have determined
that the adoption, effectiveness, phase-in or applicability after the date
hereof of any law, rule or regulation (or any provision thereof) regarding
capital adequacy, or any change therein or in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Lender (or its applicable lending office) with any guideline,
request or directive regarding capital adequacy (whether or not having the
force of law) of any such governmental authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on the
capital of such Lender or any corporation controlling such Lender as a
consequence of, or with reference to, such Lender's Loans or Commitments or
Letters of Credit or participations therein or other obligations hereunder with
respect to the Loans or the Letters of Credit to a level below that which such
Lender or such controlling corporation could have achieved but for such
adoption, effectiveness, phase-in, applicability, change or compliance (taking
into consideration the policies of such Lender or such controlling corporation
with regard to capital adequacy), then from time to time, within five Business
Days after receipt by Company from such Lender of the statement referred to in
the next sentence, Company shall pay to such Lender such additional amount or
amounts as will compensate such Lender or such controlling corporation on an
after-tax basis for such reduction. Such Lender shall deliver to Company (with
a copy to Agent) a written statement, setting forth in reasonable detail the
basis of the calculation of such additional amounts, which statement shall be
conclusive and binding upon all parties hereto absent manifest error.
2.8 OBLIGATION OF LENDERS AND ISSUING LENDER TO MITIGATE.
Each Lender and Issuing Lender agrees that, as promptly as practicable
after the officer of such Lender or Issuing Lender responsible for
administering the Loans or Letters of Credit of such Lender or Issuing Lender,
as the case may be, becomes aware of the occurrence of an event or the
existence of a condition that would cause such Lender to become an Affected
Lender or that would entitle such Lender or Issuing Lender to receive payments
under subsection 2.7 or subsection 3.6, it will, to the extent not inconsistent
with the internal policies of such
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Lender or Issuing Lender and any applicable legal or regulatory restrictions,
use reasonable efforts (i) to make, issue, fund or maintain the Commitments of
such Lender or Issuing Lender or the affected Loans or Letters of Credit of
such Lender or Issuing Lender through another lending or letter of credit
office of such Lender or Issuing Lender, or (ii) take such other measures as
such Lender or Issuing Lender may deem reasonable, if as a result thereof the
circumstances which would cause such Lender to be an Affected Lender would
cease to exist or the additional amounts which would otherwise be required to
be paid to such Lender pursuant to subsection 2.7 or subsection 3.6 would be
materially reduced and if, as determined by such Lender or Issuing Lender in
its sole discretion, the making, issuing, funding or maintaining of such
Commitments or Loans or Letters of Credit through such other lending or letter
of credit office or in accordance with such other measures, as the case may be,
would not otherwise materially adversely affect such Commitments or Loans or
Letters of Credit or the interests of such Lender or Issuing Lender; PROVIDED
that such Lender or Issuing Lender will not be obligated to utilize such other
lending or letter of credit office pursuant to this subsection 2.8 unless
Company agrees to pay all incremental expenses incurred by such Lender or
Issuing Lender as a result of utilizing such other lending or letter of credit
office as described in clause (i) above. A certificate as to the amount of any
such expenses payable by Company pursuant to this subsection 2.8 (setting forth
in reasonable detail the basis for requesting such amount) submitted by such
Lender or Issuing Lender to Company (with a copy to Agent) shall be conclusive
absent manifest error.
2.9 AFFECTED LENDERS.
If Company is obligated to pay to any Lender any additional amount
under subsections 2.6 (other than subsection 2.6D), 2.7 or 3.6 hereof, and such
Lender is unable or unwilling to mitigate such amounts in accordance with
subsection 2.8, Company may, if no Event of Default or Potential Event of
Default then exists, replace such Lender with an assignee acceptable to Agent,
and such Lender hereby agrees to be so replaced subject to the following:
(i) The obligations of Company hereunder to the Lender to be
replaced (including such increased or additional costs incurred by
such Lender through the date such Lender is replaced hereunder) shall
be paid in full to such Lender concurrently with such replacement;
(ii) The replacement Lender shall be a bank or other
financial institution that is not subject to such increased costs
which caused Company's election to replace any Lender hereunder, and
each such replacement Lender shall execute and deliver to Agent such
documentation satisfactory to Agent pursuant to which such replacement
Lender is to become a party hereto, with a commitment equal to that of
the Lender being replaced and shall make Loans in the aggregate
principal amount equal to the aggregate outstanding principal amount
of the Loans of the Lender being replaced;
(iii) Upon such execution of such documents referred to in
clause (ii) and repayment of the amount referred to in clause (i), the
replacement Lender shall be a "Lender" with a commitment as specified
hereinabove and the Lender being replaced
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shall cease to be a "Lender" hereunder, except with respect to such
provisions under this Agreement, which expressly survive the
termination of this Agreement as to such replaced Lender;
(iv) Agent shall reasonably cooperate in effectuating the
replacement of any Lender under this subsection 2.9, but at no time
shall Agent be obligated to initiate any such replacement;
(v) Any Lender replaced under this subsection 2.9 shall be
replaced at Company's sole cost and expense and at no cost or expense
to Agent or any of the Lenders; and
(vi) If Company proposes to replace any Lender pursuant to
this subsection 2.9 because the Lender seeks reimbursement under
subsection 2.6, 2.7 or 3.6, then it must also replace any other Lender
who seeks similar or greater levels of reimbursement (as a percentage
of such Lender's commitment) under such subsections; PROVIDED HOWEVER
that if the amount of the commitment any replacement Lender is willing
to commit to does not exceed the aggregate of the commitments of each
such Lender seeking such reimbursement, the commitment of each such
Lender seeking reimbursement shall be reduced pro rata to the extent
of the commitment of such replacement Lender.
2.10 GUARANTIES OF AND SECURITY FOR THE OBLIGATIONS.
A. COMPANY AND ITS SUBSIDIARIES. (i) Each Operating Sub and each
License Sub shall guaranty the Obligations of Company pursuant to the
Subsidiary Guaranty and (ii) to secure the full performance of the Obligations,
each Credit Party shall grant, subject to the limitation set forth in
subsection 2.10B(ii), to Agent on behalf and for the ratable benefit of
Lenders, a duly perfected First Priority Lien (subject to Permitted Liens) on
all real, personal and mixed property of such Credit Party, including, without
limitation, to the extent permitted by law, the FCC Licenses, now owned or
hereafter acquired, which Agent or Requisite Lenders may request. Each Credit
Party shall execute and deliver any and all Security Documents including,
without limitation, the Pledge and Security Agreement, Mortgages, financing
statements, termination statements, collateral search reports, title reports,
title insurance, landlord waivers and consents, trademark documentation,
opinions of counsel and such other perfection documents, instruments,
information and materials with respect to the property of such Credit Party as
Agent may reasonably request. All of the foregoing shall be in form and
substance reasonably satisfactory to Agent.
B. FURTHER ASSURANCES; ADDITIONAL SECURITY.
(i) Company shall, and shall cause each other Credit Party
to, from time to time, execute and deliver to Agent on behalf of
Lenders, such additional Security Documents, statements, documents,
agreements and reports as it may from time to time reasonably request
to evidence, perfect or otherwise implement or assure the security for
repayment of the Obligations; PROVIDED that no Credit Party shall be
required to provide
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any different type of Collateral from that contemplated for such by
the Security Documents to which it is a party as of the Closing Date.
With respect to the Lenders' Policies, upon Agent's request, Company
shall arrange for co-insurance and/or reinsurance, with companies and
in amounts satisfactory to Agent. All reinsurance policies shall
include direct access agreements acceptable to Agent. Any future
advances made by Lenders hereunder shall be conditioned upon Agent
obtaining such additional endorsements to the Lenders' Policies
insuring the additional amount of the Loan and the validity and
priority of such advances as Agent deems necessary or advisable.
(ii) Notwithstanding anything herein to the contrary, to the
extent this Agreement or any other Loan Document purports to require
any Credit Party to grant to Agent, on behalf and for the ratable
benefit of Lenders, a security interest in the FCC Licenses of such
Credit Party, Agent, on behalf and for the ratable benefit of Lenders,
shall only have a security interest in such licenses at such times and
to the extent that a security interest in such licenses is permitted
under applicable law. Notwithstanding anything to the contrary set
forth herein, Agent, on behalf of Lenders, agrees that to the extent
prior FCC approval is required pursuant to the Communications Act for
(a) the operation and effectiveness of any grant, right or remedy
hereunder or under any Loan Document or (b) taking any action that may
be taken by Agent hereunder or under any Loan Document, such grant,
right, remedy or actions will be subject to such prior FCC approval
having been obtained by or in favor of Agent, on behalf and for the
ratable benefit of Lenders. Company agrees that, upon an Event of
Default and at Agent's request, Company shall immediately file, or
cause to be filed, such applications for approval and shall take all
other and further actions required by the Agent, on behalf and for the
ratable benefit of Lenders, to obtain such FCC approvals or consents
as are necessary to transfer ownership and control to Agent or trustee
or other fiduciary acting in lieu of Agent in order to ensure
compliance with Section 310(b) of the Communications Act, on behalf
and for the ratable benefit of Lenders, or their successors or
assigns, of the FCC Licenses held by it.
SECTION 3.
LETTERS OF CREDIT
3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF PARTICIPATIONS
THEREIN.
A. LETTERS OF CREDIT. In addition to Company requesting that Lenders
make Revolving Loans pursuant to subsection 2.1A, Company may request, in
accordance with the provisions of this subsection 3.1, from time to time during
the period from the Effective Date to but excluding the date thirty days prior
to the Stated Maturity Date, that Issuing Lender issue Letters of Credit for
the account of Company for the purposes specified in the definition of Letters
of Credit. Subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties of Company herein set forth,
Issuing Lender shall issue such Letters of Credit in accordance with the
provisions of this subsection 3.1; PROVIDED that Company shall not request that
Issuing Lender issue (and Issuing Lender shall not issue):
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(i) any Letter of Credit if, after giving effect to such
issuance, the Total Utilization of Revolving Loan Commitments would
exceed the Revolving Loan Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such
issuance, the Letter of Credit Usage would exceed, (a) during the
period from the Effective Date to the Closing Date, $4,000,000;
PROVIDED that such Letters of Credit are cash collateralized when
issued pursuant to the Collateral Account Agreement, and (b) upon the
Closing Date, $10,000,000; PROVIDED that on the Closing Date, as long
as no Event of Default or Potential Event of Default has occurred and
is continuing, the cash collateral referred to in clause (a) of this
subsection 3.1A(ii), pursuant to the Collateral Account Agreement,
will be terminated and the proceeds of such collateral will be
returned to Company or to such Person as Company may direct;
(iii) any Letter of Credit having an expiration date later
than the earlier of (a) 30 days prior to the Stated Maturity Date and
(b) the date which is one year from the date of issuance of such
standby Letter of Credit; PROVIDED that the immediately preceding
clause (b) shall not prevent Issuing Lender from agreeing that a
Letter of Credit will automatically be extended for one or more
successive periods not to exceed one year each unless Issuing Lender
elects not to extend for any such additional period; and PROVIDED,
FURTHER that Issuing Lender shall give notice that it will not extend
such Letter of Credit if it has knowledge that an Event of Default has
occurred and is continuing (and has not been waived in accordance with
subsection 10.6) at the time Issuing Lender must elect whether or not
to allow such extension;
(iv) any Letter of Credit after the Commitment Termination
Date; or
(v) any Letter of Credit denominated in a currency other than
Dollars.
B. MECHANICS OF ISSUANCE.
(i) NOTICE OF ISSUANCE. Whenever Company desires the issuance
of a Letter of Credit, it shall deliver to Agent a Notice of Issuance
of Letter of Credit substantially in the form of EXHIBIT III annexed
hereto no later than 10:00 A.M. (New York time) at least three
Business Days, or in each case such shorter period as may be agreed to
by Issuing Lender in any particular instance, in advance of the
proposed date of issuance. The Notice of Issuance of Letter of Credit
shall specify (a) the proposed date of issuance (which shall be a
Business Day), (b) the face amount of the Letter of Credit, (c) the
expiration date of the Letter of Credit, (d) the name and address of
the beneficiary, and (e) the verbatim text of the proposed Letter of
Credit or the proposed terms and conditions thereof, including a
precise description of any documents and the verbatim text of any
certificates to be presented by the beneficiary which, if presented by
the beneficiary prior to the expiration date of the Letter of Credit,
would require Issuing Lender to make payment under the Letter of
Credit; PROVIDED that Issuing Lender, in its reasonable discretion,
may require changes in the text of the proposed Letter of Credit
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or any such documents or certificates; and PROVIDED, FURTHER that no
Letter of Credit shall require payment against a conforming draft to
be made thereunder on the same business day (under the laws of the
jurisdiction in which the office of Issuing Lender to which such draft
is required to be presented is located) that such draft is presented
if such presentation is made after 10:00 A.M. (New York time) on such
business day.
Company shall notify Issuing Lender prior to the issuance of
any Letter of Credit in the event that any of the matters to which
Company is required to certify in the applicable Notice of Issuance of
Letter of Credit is no longer true and correct as of the proposed date
of issuance of such Letter of Credit, and upon the issuance of any
Letter of Credit Company shall be deemed to have re-certified, as of
the date of such issuance, as to the matters to which Company is
required to certify in the applicable Notice of Issuance of Letter of
Credit.
(ii) ISSUANCE OF LETTER OF CREDIT. Upon satisfaction or
waiver (in accordance with subsection 10.6) of the conditions set
forth in subsection 4.5, Issuing Lender shall issue the requested
Letter of Credit in accordance with Issuing Lender's standard
operating procedures.
(iii) NOTIFICATION TO LENDERS. Upon the issuance of any
Letter of Credit, Issuing Lender shall promptly notify Agent and each
other Lender of such issuance, which notice shall be accompanied by a
copy of such Letter of Credit. Promptly after receipt of such notice,
Agent shall notify each Lender of the amount of such Lender's
respective participation in such Letter of Credit, determined in
accordance with subsection 3.1C.
(iv) REPORTS TO LENDERS. Within 15 days after the end of each
calendar quarter ending after the Closing Date, so long as any Letter
of Credit shall have been outstanding during such calendar quarter,
Issuing Lender shall deliver to each other Lender a report setting
forth the average for such calendar quarter of the daily maximum
amount available to be drawn under the Letters of Credit issued by
Issuing Lender that were outstanding during such calendar quarter.
C. LENDERS' PURCHASE OF PARTICIPATIONS IN LETTERS OF CREDIT.
Immediately upon the issuance of each Letter of Credit, each Lender shall be
deemed to, and hereby agrees to, have irrevocably purchased from Issuing Lender
a participation in such Letter of Credit and drawings thereunder in an amount
equal to such Lender's Pro Rata Share of the maximum amount which is or at any
time may become available to be drawn thereunder.
3.2 LETTER OF CREDIT FEES.
Company agrees to pay the following amounts to Issuing Lender with
respect to Letters of Credit issued by it:
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(i) (a) a fronting fee equal to 0.25% per annum of the daily
maximum amount available to be drawn under such Letter of Credit and
(b) a letter of credit fee equal to the product of (X) an annual rate
equal to the Applicable Margin for LIBOR Rate Loans in effect at the
time of issuance of such Letter of Credit and (Y) daily maximum amount
available to be drawn under such Letter of Credit, in each case
payable in arrears on and to (but excluding) each March 31, June 30,
September 30 and December 31 of each year and computed on the basis of
a 360-day year for the actual number of days elapsed;
(ii) with respect to the issuance, amendment or transfer of
each Letter of Credit and each payment of a drawing made thereunder
(without duplication of the fees payable under clause (i) above),
documentary and processing charges in accordance with Issuing Lender's
standard schedule for such charges in effect at the time of such
issuance, amendment, transfer or payment, as the case may be.
Promptly upon receipt by Issuing Lender of any amount described in clause
(i)(b) of this subsection 3.2, Issuing Lender shall distribute to each other
Lender its Pro Rata Share of such amount.
3.3 DRAWINGS AND REIMBURSEMENT OF AMOUNTS DRAWN UNDER LETTERS OF CREDIT.
A. RESPONSIBILITY OF ISSUING LENDER WITH RESPECT TO DRAWINGS. In
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, Issuing Lender shall be responsible only to determine that
the documents and certificates required to be delivered under such Letter of
Credit have been delivered and that they comply on their face with the
requirements of such Letter of Credit.
B. REIMBURSEMENT BY COMPANY OF AMOUNTS DRAWN UNDER LETTERS OF CREDIT.
In the event Issuing Lender has determined to honor a drawing under a Letter of
Credit issued by it, Issuing Lender shall immediately notify Company and Agent,
and Company shall reimburse Issuing Lender on or before the Business Day
immediately following the date on which such drawing is honored (the
"REIMBURSEMENT DATE") in an amount in Dollars and in same day funds equal to
the amount of such drawing; PROVIDED that, anything contained in this Agreement
to the contrary notwithstanding, (i) unless Company shall have notified Agent
and Issuing Lender prior to 10:00 A.M. (New York time) on the date of such
drawing that Company intends to reimburse Issuing Lender for the amount of such
drawing with funds other than the proceeds of Revolving Loans, Company shall be
deemed to have given a timely Notice of Borrowing to Agent requesting Lenders
to make Revolving Loans that are Base Rate Loans on the Reimbursement Date in
an amount in Dollars equal to the amount of such drawing and (ii) subject to
satisfaction or waiver of the conditions specified in subsection 4.5B, Lenders
shall, on the Reimbursement Date, make Revolving Loans that are Base Rate Loans
in the amount of such drawing, the proceeds of which shall be applied directly
by Agent to reimburse Issuing Lender for the amount of such drawing; and
PROVIDED, FURTHER that if for any reason proceeds of Revolving Loans are not
received by Issuing Lender on the Reimbursement Date in an amount equal to the
amount of such drawing, Company shall reimburse Issuing Lender, on demand, in
an amount in same day funds equal to the excess of the amount of such drawing
over the
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aggregate amount of such Revolving Loans, if any, which are so received.
Nothing in this subsection 3.3B shall be deemed to relieve any Lender from its
obligation to make Revolving Loans on the terms and conditions set forth in
this Agreement, and Company shall retain any and all rights it may have against
any Lender resulting from the failure of such Lender to make such Revolving
Loans under this subsection 3.3B.
C. PAYMENT BY LENDERS OF UNREIMBURSED DRAWINGS UNDER LETTERS OF
CREDIT.
(i) PAYMENT BY LENDERS. In the event that Company shall fail
for any reason to reimburse Issuing Lender as provided in subsection
3.3B in an amount equal to the amount of any drawing honored by
Issuing Lender under a Letter of Credit issued by it, Issuing Lender
shall promptly notify each other Lender of the unreimbursed amount of
such drawing and of such other Lender's respective participation
therein based on such Lender's Pro Rata Share. Each Lender shall make
available to Issuing Lender an amount equal to its respective
participation, in Dollars and in same day funds, at the office of
Issuing Lender specified in such notice, not later than 12:00 P.M.
(New York time) on the first business day (under the laws of the
jurisdiction in which such office of Issuing Lender is located) after
the date notified by Issuing Lender. In the event that any Lender
fails to make available to Issuing Lender on such business day the
amount of such Lender's participation in such Letter of Credit as
provided in this subsection 3.3C, Issuing Lender shall be entitled to
recover such amount on demand from such Lender together with interest
thereon at the rate customarily used by Issuing Lender for the
correction of errors among banks for three Business Days and
thereafter at the Base Rate. Nothing in this subsection 3.3C shall be
deemed to prejudice the right of any Lender to recover from Issuing
Lender any amounts made available by such Lender to Issuing Lender
pursuant to this subsection 3.3C in the event that it is determined by
the final judgment of a court of competent jurisdiction that the
payment with respect to a Letter of Credit by Issuing Lender in
respect of which payment was made by such Lender constituted gross
negligence or willful misconduct on the part of Issuing Lender.
(ii) DISTRIBUTION TO LENDERS OF REIMBURSEMENTS RECEIVED FROM
COMPANY. In the event Issuing Lender shall have been reimbursed by
other Lenders pursuant to subsection 3.3C(i) for all or any portion of
any drawing honored by Issuing Lender under a Letter of Credit issued
by it, Issuing Lender shall distribute to each other Lender which has
paid all amounts payable by it under subsection 3.3C(i) with respect
to such drawing such other Lender's Pro Rata Share of all payments
subsequently received by Issuing Lender from Company in reimbursement
of such drawing when such payments are received. Any such distribution
shall be made to a Lender at its primary address set forth below its
name on the appropriate signature page hereof or at such other address
as such Lender may request.
D. INTEREST ON AMOUNTS DRAWN UNDER LETTERS OF CREDIT.
(i) PAYMENT OF INTEREST BY COMPANY. Company agrees to pay to
Issuing Lender, with respect to drawings made under any Letters of
Credit issued by it, interest
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on the amount paid by Issuing Lender in respect of each such drawing
from the date of such drawing to but excluding the date such amount is
reimbursed by Company (including any such reimbursement out of the
proceeds of Revolving Loans pursuant to subsection 3.3B) at a rate
equal to (a) for the period from the date of such drawing to but
excluding the Reimbursement Date, the rate then in effect under this
Agreement with respect to Revolving Loans that are Base Rate Loans and
(b) thereafter, a rate which is 2% per annum in excess of the rate of
interest otherwise payable under this Agreement with respect to
Revolving Loans that are Base Rate Loans. Interest payable pursuant to
this subsection 3.3D(i) shall be computed on the basis of a 365-day or
366-day year, as the case may be, for the actual number of days
elapsed in the period during which it accrues and shall be payable on
demand or, if no demand is made, on the date on which the related
drawing under a Letter of Credit is reimbursed in full.
(ii) DISTRIBUTION OF INTEREST PAYMENTS BY ISSUING LENDER.
Promptly upon receipt by Issuing Lender of any payment of interest
pursuant to subsection 3.3D(i) with respect to a drawing under a
Letter of Credit issued by it, (a) Issuing Lender shall distribute to
each other Lender, out of the interest received by Issuing Lender in
respect of the period from the date of such drawing to but excluding
the date on which Issuing Lender is reimbursed for the amount of such
drawing (including any such reimbursement out of the proceeds of
Revolving Loans pursuant to subsection 3.3B), the amount that such
other Lender would have been entitled to receive in respect of the
letter of credit fee that would have been payable in respect of such
Letter of Credit for such period pursuant to subsection 3.2 if no
drawing had been made under such Letter of Credit, and (b) in the
event Issuing Lender shall have been reimbursed by other Lenders
pursuant to subsection 3.3C(i) for all or any portion of such drawing,
Issuing Lender shall distribute to each other Lender which has paid
all amounts payable by it under subsection 3.3C(i) with respect to
such drawing such other Lender's Pro Rata Share of any interest
received by Issuing Lender in respect of that portion of such drawing
so reimbursed by other Lenders for the period from the date on which
Issuing Lender was so reimbursed by other Lenders to but excluding the
date on which such portion of such drawing is reimbursed by Company.
Any such distribution shall be made to a Lender at its primary address
set forth below its name on the appropriate signature page hereof or
at such other address as such Lender may request.
3.4 OBLIGATIONS ABSOLUTE.
The obligation of Company to reimburse Issuing Lender for drawings
made under the Letters of Credit issued by it and to repay any Revolving Loans
made by Lenders pursuant to subsection 3.3B and the obligations of Lenders
under subsection 3.3C(i) shall be unconditional and irrevocable and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of any Letter
of Credit;
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(ii) the existence of any claim, set-off, defense or other
right which Company or any Lender may have at any time against a
beneficiary or any transferee of any Letter of Credit (or any Persons
for whom any such transferee may be acting), Issuing Lender or other
Lender or any other Person or, in the case of a Lender, against
Company, whether in connection with this Agreement, the transactions
contemplated herein or any unrelated transaction (including any
underlying transaction between Company or one of its Subsidiaries and
the beneficiary for which any Letter of Credit was procured);
(iii) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
(iv) payment by Issuing Lender under any Letter of Credit
against presentation of a demand, draft or certificate or other
document which does not comply with the terms of such Letter of
Credit;
(v) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or prospects of
Company or any of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document
by any party thereto;
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential Event
of Default shall have occurred and be continuing;
PROVIDED, in each case, that payment by Issuing Lender under the applicable
Letter of Credit shall not have constituted gross negligence or willful
misconduct of Issuing Lender under the circumstances in question (as determined
by a final judgment of a court of competent jurisdiction).
3.5 INDEMNIFICATION; NATURE OF ISSUING LENDER'S DUTIES.
A. INDEMNIFICATION. In addition to amounts payable as provided in
subsection 3.6, Company hereby agrees to protect, indemnify, pay and save
harmless Issuing Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel) which Issuing Lender may incur or
be subject to as a consequence, direct or indirect, of (i) the issuance of any
Letter of Credit by Issuing Lender, other than as a result of (a) the gross
negligence or willful misconduct of Issuing Lender as determined by a final
judgment of a court of competent jurisdiction or (b) subject to the following
clause (ii), the wrongful dishonor by Issuing Lender of a proper demand for
payment made under any Letter of Credit issued by it or (ii) the failure of
Issuing Lender to honor a drawing under any such Letter of Credit as a result
of any act or omission, whether
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rightful or wrongful, of any present or future de jure or de facto government
or governmental authority (all such acts or omissions herein called
"GOVERNMENTAL ACTS").
B. NATURE OF ISSUING LENDER'S DUTIES. As between Company and Issuing
Lender, Company assumes all risks of the acts and omissions of, or misuse of
the Letters of Credit issued by Issuing Lender by, the respective beneficiaries
of such Letters of Credit. In furtherance and not in limitation of the
foregoing, Issuing Lender shall not be responsible for: (i) the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document submitted by
any party in connection with the application for and issuance of any such
Letter of Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (ii) the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) failure of the beneficiary of any
such Letter of Credit to comply fully with any conditions required in order to
draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission
or otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing under
such Letter of Credit; or (viii) any consequences arising from causes beyond
the control of Issuing Lender, including without limitation any Governmental
Acts, and none of the above shall affect or impair, or prevent the vesting of,
any of Issuing Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first paragraph of this subsection 3.5B, any action
taken or omitted by Issuing Lender under or in connection with the Letters of
Credit issued by it or any documents and certificates delivered thereunder, if
taken or omitted in good faith, shall not put Issuing Lender under any
resulting liability to Company.
Notwithstanding anything to the contrary contained in this subsection
3.5, Company shall retain any and all rights it may have against Issuing Lender
for any liability arising solely out of the gross negligence or willful
misconduct of Issuing Lender, as determined by a final judgment of a court of
competent jurisdiction.
3.6 INCREASED COSTS AND TAXES RELATING TO LETTERS OF CREDIT.
In the event that Issuing Lender or Lender shall determine (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto) that any law, treaty or governmental rule, regulation
or order, or any change therein or in the interpretation, administration or
application thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of a court or
governmental authority, in each case that becomes effective after the date
hereof, or compliance by Issuing Lender or Lender with any guideline, request
or directive issued or made after the date hereof
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by any central bank or other governmental or quasi-governmental authority
(whether or not having the force of law):
(i) subjects Issuing Lender or Lender (or its applicable
lending or letter of credit office) to any additional Tax (other than
any Tax on the overall net income of Issuing Lender or Lender) with
respect to the issuing or maintaining of any Letters of Credit or the
purchasing or maintaining of any participations therein or any other
obligations under this Section 3, whether directly or by such being
imposed on or suffered by Issuing Lender;
(ii) imposes, modifies or holds applicable any reserve
(including without limitation any marginal, emergency, supplemental,
special or other reserve), special deposit, compulsory loan, FDIC
insurance or similar requirement in respect of any Letters of Credit
issued by Issuing Lender or participations therein purchased by any
Lender; or
(iii) imposes any other condition (other than with respect to
a Tax matter) on or affecting Issuing Lender or Lender (or its
applicable lending or letter of credit office) regarding this Section
3 or any Letter of Credit or any participation therein;
and the result of any of the foregoing is to increase the cost to Issuing
Lender or Lender of agreeing to issue, issuing or maintaining any Letter of
Credit or agreeing to purchase, purchasing or maintaining any participation
therein or to reduce any amount received or receivable by Issuing Lender or
Lender (or its applicable lending or letter of credit office) with respect
thereto; then, in any case, Company shall promptly pay to Issuing Lender or
Lender, upon receipt of the statement referred to in the next sentence, such
additional amount or amounts as may be necessary to compensate Issuing Lender
or Lender for any such increased cost or reduction in amounts received or
receivable hereunder. Issuing Lender or Lender shall deliver to Company a
written statement, setting forth in reasonable detail the basis for calculating
the additional amounts owed to Issuing Lender or Lender under this subsection
3.6, which statement shall be conclusive and binding upon all parties hereto
absent manifest error.
SECTION 4.
CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the issuance of Letters
of Credit hereunder are subject to the satisfaction of the following
conditions.
4.1 CONDITIONS TO INITIAL LETTERS OF CREDIT.
The issuance of any Letter of Credit hereunder to be made during the
period from the Effective Date to the Closing Date is, subject to the following
conditions precedent:
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A. On or before the date of issuance of such Letter of Credit, Agent
shall have received, in accordance with the provisions of subsection 3.1B(i),
an originally executed Notice of Issuance of Letter of Credit, in each case
signed by the chief financial officer of Company on behalf of Company in a
writing delivered to Agent, together with all other information specified in
subsection 3.1B(i) and such other documents or information as Issuing Lender
may reasonably require in connection with the issuance of such Letter of
Credit.
B. On the date of issuance of such Letter of Credit, all conditions
precedent described in subsection 4.1A shall be satisfied to the same extent as
if the issuance of such Letter of Credit were the making of a Revolving Loan
and the date of issuance of such Letter of Credit were a Funding Date.
C. CREDIT PARTY DOCUMENTS. On or before the Effective Date, each
Credit Party shall deliver or cause to be delivered to Lenders (or to Agent for
Lenders with sufficient originally executed copies, where appropriate, for each
Lender and its counsel) the following, each, unless otherwise noted, dated the
Effective Date:
(i) Certified copies of its Certificate or Articles of
Incorporation, together with a good standing certificate from the
Secretary of State of its state of incorporation and each other state
in which it is qualified as a foreign corporation to do business and,
to the extent generally available, a certificate or other evidence of
good standing as to payment of any applicable franchise or similar
taxes from the appropriate taxing authority of each of such states,
each dated a recent date prior to the Effective Date;
(ii) Copies of its Bylaws, certified as of the Effective Date
by its corporate secretary or an assistant secretary;
(iii) Resolutions of its Board of Directors approving and
authorizing the execution, delivery and performance of each Loan
Document to which it is to be a party, certified as of the Effective
Date by its corporate secretary or an assistant secretary as being in
full force and effect without modification or amendment;
(iv) Signature and incumbency certificates of its officers
executing the Loan Documents to which it is to be a party;
(v) Executed originals of (A) in the case of Company this
Agreement, the Notes (duly executed in accordance with subsection
2.1D, drawn to the order of each Lender and with appropriate
insertions) and the other Loan Documents to which it is to be a party
and (B) in the case of each other Credit Party, the Loan Documents to
which it is to be a party; and
(vi) Such other documents as Agent may reasonably request.
D. SECURITY INTERESTS. Each Credit Party shall have taken or caused to
be taken (and Agent shall have received satisfactory evidence thereof) such
actions in such a manner so that
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Agent has a valid and perfected First Priority security interest (subject to
Permitted Liens) as of the Effective Date in the entire Collateral owned as of
such date. Such actions shall include, without limitation, (i) delivery to
Agent of certificates other than those certificates delivered in connection
with the Sellers Note Documents (which certificates shall be registered in the
name of Agent or properly endorsed in blank for transfer or accompanied by
irrevocable undated powers duly endorsed in blank, all in form and substance
satisfactory to Agent) representing the shares of capital stock pledged
pursuant to the Security Documents and delivery to Agent of all other
instruments, (ii) filing of Uniform Commercial Code financing statements, as to
the Collateral for all jurisdictions as may be necessary or desirable to
perfect Agent's security interests in the Collateral and (iii) delivery of all
other evidence reasonably satisfactory to Agent that all other filings,
recordings and other actions Agent deems necessary or advisable to establish,
preserve and perfect the First Priority Liens, or in the case of the assets of
Regent of San Diego, Regent of Lexington and Regent of Charleston the second
priority Liens granted to Agent on behalf and for the ratable benefit of
Lenders shall have been made.
X. XXXXXX GUARANTY. On or before the Effective Date, Agent shall have
received a duly executed original of the Xxxxxx Guaranty.
F. OPINIONS OF CREDIT PARTIES' COUNSEL. Lenders and their respective
counsel shall have received originally executed copies of one or more favorable
written opinions, dated as of the Effective Date, of (i) Xxxxxxx & Xxxx,
counsel for the Credit Parties, in form and substance reasonably satisfactory
to Agent and their counsel and setting forth substantially the matters in the
opinions designated in EXHIBIT VII-A annexed hereto and, as to such other
matters as Agent may reasonably request and (ii) Xxxxxx & Xxxxxxx, counsel for
the Credit Parties as to the communications matters set forth in EXHIBIT VII-B
annexed hereto and as to such other matters as Agent may reasonably request,
all in form and substance satisfactory to Agent and their counsel.
G. OPINIONS OF AGENT'S COUNSEL. Lenders shall have received an
originally executed copy of one or more favorable written opinions of O'Melveny
& Xxxxx LLP, dated as of the Effective Date, substantially in the form of
EXHIBIT VIII annexed hereto.
4.2 CONDITIONS TO INITIAL REVOLVING LOANS.
The obligations of Lenders to make any Revolving Loans to be made on
the Closing Date are, in addition to the conditions precedent specified in
subsection 4.4, subject to prior or concurrent satisfaction of the following
conditions:
A. DELIVERY OF MORTGAGES; MORTGAGE POLICIES. Agent shall have received
from each Credit Party (other than Regent of San Diego, Regent of Lexington and
Regent of Charleston), as appropriate (A) fully executed Mortgages, which
Mortgages shall cover the real properties owned by any of such Credit Parties
as of Closing Date (each a "INITIAL MORTGAGED PROPERTY" and collectively the
"INITIAL MORTGAGED PROPERTIES") sufficient to create a valid and enforceable
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xxxx, (X) if any lease included in the Initial Mortgaged Properties is not
currently of record in the name of the applicable Credit Party (by recordation
of the lease itself or a memorandum thereof), a memorandum for each such lease
and a schedule of the lessor and lessee thereunder in form and substance
satisfactory to Agent (each a "MEMORANDUM OF LEASE"), (C) a Consent Letter with
respect to each Initial Mortgage on a real estate lease in form and substance
satisfactory to Agent, (D) zoning letters with respect to each of the Initial
Mortgaged Properties and (E) an ALTA lender's title insurance policy or other
form of policy satisfactory to Agent ("LENDER'S POLICY") issued by a company or
companies satisfactory to Agent, in an amount satisfactory to Agent, with all
premiums paid thereon, and which shall insure that (i) the Obligations are
secured by a valid first Lien on the Initial Mortgaged Properties subject only
to the title exceptions approved by Agent, and (ii) the applicable Credit Party
is current in the payment of all applicable state and local taxes, charges and
assessments affecting each of the Initial Mortgaged Properties; PROVIDED that
Regent of San Diego, Regent of Lexington and Regent of Charleston shall
deliver, or cause to be delivered, each of the documents set forth in this
subsection 4.2B and satisfy each of the conditions set forth in this subsection
4.2B if the San Diego Station, the Lexington Station and the Charleston
Stations are not sold to a party other than another Credit Party within 1 year
of the Closing Date. The Lender's Policy shall contain, to the extent
available, (1) a comprehensive lender's endorsement, (2) a survey accuracy
endorsement, (3) a usury endorsement, (4) appropriate encroachment
endorsements, (5) a tie-in endorsement, and (6) such other endorsements as
Agent deems necessary or advisable. No title indemnities shall be established
in connection with the issuance of the Lender's Policy.
B. EVIDENCE OF INSURANCE. Agent shall have received an Officers'
Certificate of Company setting forth a schedule of insurance with respect to
each of the insurance policies required pursuant to subsection 6.4 hereof, and
Agent shall be satisfied with the nature and scope of these insurance policies
and each such insurance policy shall name Agent as loss payee and/or additional
insured, on behalf and for the ratable benefit of Lenders.
C. FINANCIAL STATEMENTS. On or before the Closing Date, Agent shall
have received the unaudited consolidated financial statements of Company and
its Subsidiaries (other than Regent of Charleston and Charleston License Sub,
Regent of San Diego and San Diego License Sub and Regent of Lexington and
Lexington License Sub), together with consolidating schedules for the Fiscal
Year ended December 31, 1996 and the unaudited consolidated and consolidating
financial statements of Company and its Subsidiaries (except those excluded
above), for the nine months ended September 30, 1997, in each case certified as
true and correct pursuant to an officer's certificate of Company or Sellers, as
the case may be.
D. FINANCIAL TESTS. Company shall have delivered to Agent an Officers'
Certificate in form and substance satisfactory to Agent detailing the
compliance by Company and its Subsidiaries with the financial covenants set
forth in subsection 7.6 herein, on a pro forma basis, giving effect to all
Closing Date transactions.
E. EQUITY ISSUANCE. On or before the Closing Date, (i) Agent shall
have received evidence satisfactory to it that Company shall have received an
amount of Cash proceeds from the issuance of Company Preferred Stock sufficient
enough to reduce the Consolidated Total
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Debt Ratio to be less than or equal to 6.00:1.00, on a pro forma basis, giving
effect to all Closing Date transactions, (ii) Agent shall have received
executed or conformed copies of the Amended and Restated Certificate of
Incorporation of Company and all subscription agreements, stock purchase
agreements, shareholder agreements and any other documents or instruments
pursuant to which the Company Preferred Stock is issued (the "EQUITY
DOCUMENTS") and any amendments thereto on or prior to the Closing Date, the
terms and conditions of which shall be in all respects satisfactory to Agent,
(iii) such Equity Documents shall be in full force and effect and no term or
condition thereof shall have been amended, modified or waived after the
execution thereof, (iv) no Credit Party shall have failed in any respect to
perform any obligation or covenant required by such Equity Documents to be
performed or complied with by it on or before the Closing Date, and (v) Agent
shall have received an Officers' Certificate in form and substance satisfactory
to Agent from each Credit Party to the effect set forth in clauses (i), (ii),
(iii) and (iv) above.
F. DELIVERY OF SOURCES, USES AND FUNDING CERTIFICATE. Company shall
have delivered an Officers' Certificate detailing the sources and uses of all
funds (including the net equity proceeds and the Loans) for the transactions
occurring on the Closing Date, with proper wire instructions for Agent for the
application of the Loan proceeds on the Closing Date, all in form and substance
satisfactory to Agent.
G. RELATED DOCUMENTS. On or before the Closing Date, (i) Agent shall
have received executed or conformed copies of the Related Documents and any
amendments thereto on or prior to the Closing Date, the terms and conditions of
which shall be in all respects satisfactory to Agent, (ii) such Related
Documents shall be in full force and effect and no term or condition thereof
shall have been amended, modified or waived after the execution thereof, (iii)
no Credit Party shall have failed in any respect to perform any obligation or
covenant required by such Related Documents to be performed or complied with by
it on or before the Closing Date, and (iv) Agent shall have received an
Officers' Certificate in form and substance satisfactory to Agent from each
Credit Party to the effect set forth in clauses (i), (ii) and (iii) above.
X. XXXXXXX NOTE DOCUMENTS. On or before the Closing Date, (i) Agent
shall have received executed or conformed copies of the Sellers Note Documents
(if then existing), and any amendments thereto on or prior to the Closing Date,
the terms and conditions of which shall be in all respects satisfactory to
Agent, (ii) the Sellers Note Documents (if then existing) shall be in full
force and effect and no term or condition thereof shall have been amended,
modified or waived after the execution thereof, (iii) no Credit Party shall
have failed in any respect to perform any obligation or covenant required by
the Sellers Note Documents (if then existing), to be performed or complied with
by it on or before the Closing Date, and (iv) Agent shall have received an
Officers' Certificate in form and substance satisfactory to Agent from each
Credit Party to the effect set forth in clauses (i), (ii) and (iii) above.
I. ENVIRONMENTAL AUDIT. On or before the Closing Date, Company shall
have delivered copies of a Phase I environmental assessment for each tower or
antenna Facility and any other owned Facility related to the Stations (other
than the San Diego Station, the Lexington
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Station and the Charleston Stations) together with such other information, in
form and substance satisfactory to Agent, concerning environmental matters that
Agent may require; PROVIDED that Company shall deliver copies of the Phase I
environmental assessments for the San Diego Station, the Lexington Station and
the Charleston Stations, together with such other information, in form and
substance satisfactory to Agent, concerning environmental matters that Agent
may require, if such Stations are not sold to a party other than another Credit
Party within 1 year of the Closing Date.
J. STATION ASSETS AND LIABILITIES. As of the Closing Date, the assets
of the Stations then owned by the Credit Parties shall be free and clear of all
Liens (other than Permitted Liens).
K. DELIVERY OF FINANCIAL CONDITION CERTIFICATE. On or before the
Closing Date, Company shall have delivered a Financial Condition Certificate,
substantially in the form of EXHIBIT XI annexed hereto with appropriate
attachments demonstrating that, both immediately prior to and immediately after
giving effect to the consummation of the transactions on the Closing Date
(including incurrence of the Obligations) each Credit Party is Solvent.
L. OFFICERS CERTIFICATE. As of the Closing Date, (i) since December
31, 1996, no event or change shall have occurred that has caused or evidences,
either in any case or in the aggregate (y) a Material Adverse Effect or (z) a
material adverse effect upon the business, operations, properties, assets,
condition (financial or otherwise) or prospects of any Station, (ii) no event
which would constitute an Event of Default or Potential Event of Default (after
giving effect to the consummation of the Closing Date transactions) shall have
occurred and be continuing, (iii) the representations and warranties in Section
5 hereof shall be true, correct and complete in all material respects on and as
of the Closing Date to the same extent as though made on and as of that date,
except to the extent such representations and warranties specifically relate to
an earlier date, in which case such representations or warranties shall have
been true, correct and complete in all material respects as of such date, (iv)
no litigation, inquiry or other action and no injunction or restraining order
shall be pending or threatened with respect to the making of the Loans
hereunder or the transactions contemplated hereby and (v) each Credit Party
shall have delivered to Agent an Officers' Certificate to such effect, in form
and substance satisfactory to Agent.
M. DELIVERY OF COMPLIANCE CERTIFICATES. Company shall have delivered
to Agent a Compliance Certificate, substantially in the form of EXHIBIT VI
annexed hereto, dated as of the Closing Date and calculated to give effect to
the initial funding of Loans under this Agreement, demonstrating compliance
with the covenants set forth in this Agreement as of the Closing Date.
N. FEES AND EXPENSES. Company shall have paid to the Agent for
distribution (as appropriate) to Lenders the fees payable on the Closing Date
referred to in subsection 2.3.
O. PERFORMANCE OF AGREEMENTS. Each Credit Party shall have performed
in all material respects all agreements which this Agreement provides shall be
performed on or before the Closing Date except as otherwise disclosed to and
agreed to in writing by Agent, and Agent
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shall have received an Officers' Certificate from each Credit Party to such
effect in form and substance satisfactory to Agent.
P. COMPLETION OF PROCEEDINGS. All corporate and other proceedings
taken or to be taken in connection with the transactions contemplated hereby
and all documents incidental thereto not previously found acceptable by Agent
and their counsel shall be satisfactory in form and substance to Agent and such
counsel, and Agent and their counsel shall have received all such counterpart
originals or certified copies of such documents as Agent may reasonably
request.
4.3 CONDITIONS TO PERMITTED ACQUISITIONS.
The obligations of Lenders to make the Revolving Loans to be made in
connection with any Permitted Acquisition are, in addition to the conditions
precedent specified in subsection 4.4, subject to prior or concurrent
satisfaction of the following conditions:
A. CREDIT PARTY DOCUMENTS. On or before the Permitted Acquisition
Closing Date, each new Credit Party formed to accomplish such Permitted
Acquisition shall deliver or cause to be delivered to Lenders (or to Agent for
Lenders with sufficient originally executed copies, where appropriate, for each
Lender and its counsel) the following, each, unless otherwise noted, dated the
Permitted Acquisition Closing Date:
(i) Certified copies of its Certificate or Articles of
Incorporation, together with a good standing certificate from the
Secretary of State of its state of incorporation and each other state
in which it is qualified as a foreign corporation to do business and,
to the extent generally available, a certificate or other evidence of
good standing as to payment of any applicable franchise or similar
taxes from the appropriate taxing authority of each of such states,
each dated a recent date prior to the Permitted Acquisition Closing
Date;
(ii) Copies of its Bylaws, certified as of the Permitted
Acquisition Closing Date by its corporate secretary or an assistant
secretary;
(iii) Resolutions of its Board of Directors approving and
authorizing the execution, delivery and performance of each Loan
Document to which it is to be a party, certified as of the Permitted
Acquisition Closing Date by its corporate secretary or an assistant
secretary as being in full force and effect without modification or
amendment;
(iv) Signature and incumbency certificates of its officers
executing the Loan Documents to which it is to be a party;
(v) Executed originals of the Loan Documents to which it is
to be a party; and
(vi) Such other documents as Agent may reasonably request.
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B. DELIVERY OF MORTGAGES; MORTGAGE POLICIES. Agent shall have received
from each Credit Party, appropriate (A) fully executed Mortgages, which
Mortgages shall cover the real properties acquired by any of the Credit Parties
on the applicable Permitted Acquisition Closing Date (each a "SUBSEQUENT
MORTGAGED PROPERTY" and collectively the "SUBSEQUENT MORTGAGED PROPERTIES")
sufficient to create a valid and enforceable lien, (B) if any lease included in
the Subsequent Mortgaged Properties is not currently of record in the name of
the applicable Credit Party (by recordation of the lease itself or a memorandum
thereof), a Memorandum of Lease for each such lease in form and substance
satisfactory to Agent, (C) a Consent Letter with respect to each Mortgage on a
real estate lease in form and substance satisfactory to Agent, (D) zoning
letters with respect to each of the Subsequent Mortgaged Properties and (E) a
Lender's Policy satisfactory to Agent issued by a company or companies
satisfactory to Agent, in an amount satisfactory to Agent, with all premiums
paid thereon, and which shall insure that (i) the Obligations are secured by a
valid first Lien on the Subsequent Mortgaged Properties subject only to the
title exceptions approved by Agent, and (ii) the applicable Credit Party is
current in the payment of all applicable state and local taxes, charges and
assessments affecting each of the Subsequent Mortgaged Properties. The Lender's
Policy shall contain, to the extent available, (1) a comprehensive lender's
endorsement, (2) a survey accuracy endorsement, (3) a usury endorsement, (4)
appropriate encroachment endorsements, (5) a tie-in endorsement, and (6) such
other endorsements as Agent deems necessary or advisable. No title indemnities
shall be established in connection with the issuance of the Lender's Policy.
C. SECURITY INTERESTS. Each Credit Party shall have taken or caused to
be taken (and Agent shall have received satisfactory evidence thereof) such
actions in such a manner so that Agent has a valid and perfected first priority
security interest (subject to Permitted Liens) as of the applicable Permitted
Acquisition Closing Date in the entire Collateral owned as of such date. Such
actions shall include, without limitation, (i) delivery to Agent of
certificates (which certificates shall be registered in the name of Agent or
properly endorsed in blank for transfer or accompanied by irrevocable undated
powers duly endorsed in blank, all in form and substance satisfactory to Agent)
representing the shares of capital stock pledged pursuant to the Security
Documents and delivery to Agent of all other instruments, (ii) filing of
Uniform Commercial Code financing statements, as to the Collateral for all
jurisdictions as may be necessary or desirable to perfect Agent's security
interests in the Collateral and (iii) delivery of all other evidence reasonably
satisfactory to Agent that all other filings, recordings and other actions
Agent deems necessary or advisable to establish, preserve and perfect the first
priority Liens granted to Agent on behalf and for the ratable benefit of
Lenders shall have been made.
D. FINANCIAL STATEMENTS. Except to the extent previously delivered
under subsection 4.2, on the Permitted Acquisition Closing Date, Agent shall
have received the audited consolidated financial statements (to the extent
available) in respect of the Acquired Stations for its most recent fiscal year
then ended and the unaudited consolidated and consolidating (to the extent
available) financial statements of such Acquired Stations for each of the
calendar months between the first day of the then current fiscal year and the
last day of the most recent month then ended, in each case certified as true
and correct in all material respects pursuant to an officer's certificate of
such Sellers, and Agent shall be satisfied that the information set forth in
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such financial statements is in substantial accordance with the estimates
previously furnished by Company to the Agent.
E. PERMITTED ACQUISITION DOCUMENTS. Except to the extent previously
delivered under subsection 4.2, on the Permitted Acquisition Closing Date, (i)
Agent shall have received executed or conformed copies of the Permitted
Acquisition Documents and any amendments thereto on or prior to the Permitted
Acquisition Closing Date, the terms and conditions of which shall be in all
respects satisfactory to Agent, (ii) the Permitted Acquisition Documents shall
be in full force and effect and no term or condition thereof shall have been
amended, modified or waived after the execution thereof, (iii) no Credit Party
shall have failed in any respect to perform any obligation or covenant required
by the Permitted Acquisition Documents to be performed or complied with by it
on or before the Permitted Acquisition Closing Date, and (iv) Agent shall have
received an Officers' Certificate in form and substance satisfactory to Agent
from each Credit Party to the effect set forth in clauses (i), (ii) and (iii)
above.
F. ACQUISITION PROCEEDS. To the extent any additional Company Common
Stock or Company Preferred Stock is issued in connection with a Permitted
Acquisition, (i) Agent shall have received executed or conformed copies of the
purchase agreements and any amendments thereto on or prior to the Permitted
Acquisition Closing Date, the terms and conditions of which shall be in all
respects satisfactory to Agent, (ii) such purchase agreements shall be in full
force and effect and no term or condition thereof shall have been amended,
modified or waived after the execution thereof, (iii) no Credit Party shall
have failed in any respect to perform any obligation or covenant required by
such purchase agreements to be performed or complied with by it on or before
the Permitted Acquisition Closing Date, and (iv) Agent shall have received an
Officers' Certificate in form and substance satisfactory to Agent from each
Credit Party to the effect set forth in clauses (i), (ii) and (iii) above.
G. FCC LICENSES. Each of the FCC Licenses with respect to the Acquired
Stations shall have been transferred (pursuant to an appropriate Final Order of
the FCC) to Company or to the applicable License Sub, shall be in full force
and effect and shall, when transferred to the applicable License Sub, be
subject to an Operating Agreement between the applicable Operating Sub and
License Sub, which Operating Agreement is substantially in the form of EXHIBIT
XII annexed hereto.
H. ACQUISITION FCC CONSENT. The Acquisition FCC Consent with respect
to the Acquired Stations shall have been obtained and shall have become a Final
Order.
I. PERMITTED ACQUISITION. Except to the extent previously delivered
under subsection 4.2 on or before the Permitted Acquisition Closing Date,
Company (or its appropriate Operating Sub) shall deliver to Agent an Officers'
Certificate stating that (i) the Permitted Acquisition has been duly approved,
(ii) all action necessary by it to consummate the Permitted Acquisition has
been taken (other than the payment of the purchase price and the conveyance of
the appropriate assets) and (iii) each such party delivering such Officers'
Certificate will proceed to consummate the Permitted Acquisition immediately
upon the making of the Loans on the Permitted Acquisition Closing Date. The
Permitted Acquisition shall become effective
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in accordance with Permitted Acquisition Documents without any material
variation therefrom, except as disclosed to Lenders and consented to in writing
by Agent.
J. ENVIRONMENTAL AUDIT. Except to the extent previously delivered
under subsection 4.2, on or before the Permitted Acquisition Closing Date,
Company shall have delivered copies of Phase I environmental assessment for
each tower or antenna Facility and any other owned Facility subject to the
Permitted Acquisitions, together with such other information, in form and
substance satisfactory to Agent, concerning environmental matters that Agent
may require.
K. STATION ASSETS AND LIABILITIES. As of the Permitted Acquisition
Closing Date, the assets of the Acquired Stations shall be free and clear of
all Liens (other than Permitted Liens) and all assets and liabilities assumed
by any Credit Party pursuant to the Permitted Acquisition Documents and the
transactions contemplated thereby shall be acceptable to Agent.
L. DELIVERY OF FINANCIAL CONDITION CERTIFICATE. On or before the
making of the Loans on the Permitted Acquisition Closing Date, Company shall
have delivered a Financial Condition Certificate, substantially in the form of
EXHIBIT XI annexed hereto with appropriate attachments demonstrating that, both
immediately prior to and immediately after giving effect to the consummation of
the Permitted Acquisition and the other transactions on the Permitted
Acquisition Closing Date (including incurrence of the Obligations) each Credit
Party is Solvent.
M. SCHEDULES. Company shall have updated each of the Schedules to this
Agreement and the other Loan Documents to the extent necessary to reflect
changes resulting from the consummation of the Permitted Acquisition, in each
case, in form and substance satisfactory to Agent, and Company shall have
delivered to Agent an Officers' Certificate to which such updated Schedules
shall be attached certifying that such Schedules are true, correct and accurate
as of the Permitted Acquisition Closing Date.
N. OFFICERS CERTIFICATE. As of the Permitted Acquisition Closing Date,
(i) since the date of the most recent audited financial statement delivered
pursuant to subsection 6.1(iii), no event or change shall have occurred that
has caused or evidences, either in any case or in the aggregate (y) a Material
Adverse Effect or (z) a material adverse effect upon the business, operations,
properties, assets, condition (financial or otherwise) or prospects of any
Station subject to the Permitted Acquisition, (ii) no event which would
constitute an Event of Default or Potential Event of Default (after giving
effect to the consummation of the Permitted Acquisition Closing Date
transactions) shall have occurred and be continuing, (iii) the representations
and warranties in Section 5 hereof shall be true, correct and complete in all
material respects on and as of the Permitted Acquisition Closing Date to the
same extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case such representations or warranties shall have been true, correct and
complete in all material respects as of such date, (iv) no litigation, inquiry
or other action and no injunction or restraining order shall be pending or
threatened with respect to the making of the Loans hereunder or the
transactions contemplated hereby and (v) each Credit Party shall have delivered
to Agent an Officers' Certificate to such effect, in form and substance
satisfactory to Agent.
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O. DELIVERY OF COMPLIANCE CERTIFICATES. Company shall have delivered
to Agent a Compliance Certificate, substantially in the form of EXHIBIT VI
annexed hereto, dated as of the Permitted Acquisition Closing Date and
calculated to give effect to the funding of Revolving Loans under this
Agreement on the Permitted Acquisition Closing Date, demonstrating compliance
with the covenants set forth in this Agreement as of the Permitted Acquisition
Closing Date.
P. DELIVERY OF PERMITTED ACQUISITION AGREEMENT OPINIONS OF COUNSEL. On
or before the Permitted Acquisition Closing Date, Lenders and their counsel
shall have received originally executed copies of the favorable written
opinions of each of the counsel referred to in the Permitted Acquisition
Documents, in form and substance satisfactory to Agent and its counsel, dated
as of the Permitted Acquisition Closing Date, as to the matters specified in
such documents, and Company shall use its best efforts to have each such
opinion of counsel (other than the opinion of Seller's counsel with respect to
the Faircom Acquisition) state that Lenders are entitled to rely thereon.
Q. OPINIONS OF CREDIT PARTIES' COUNSEL. Lenders and their respective
counsel shall have received originally executed copies of one or more favorable
written opinions, dated as of the Permitted Acquisition Closing Date, of (i)
counsel for the Credit Parties reasonably satisfactory to Agent and its
counsel, in form and substance reasonably satisfactory to Agent and its counsel
and setting forth substantially the matters in the opinions designated in
EXHIBIT VII-A annexed hereto and, as to such other matters as Agent may
reasonably request, (ii) Xxxxxx & Xxxxxxx, counsel for the Credit Parties as to
the communications matters set forth in EXHIBIT VII-D annexed hereto (other
than those communications matters previously opined to in the opinion of Xxxxxx
& Xxxxxxx delivered pursuant to subsection 4.1F(ii)) and as to such other
matters as Agent may reasonably request, and (iii) special counsel for the
Credit Parties affected by the Permitted Acquisition qualified in each
jurisdiction (other than the jurisdictions covered in the opinion delivered
pursuant to clause (i) above in which any such Credit Party is incorporated or
where Security Documents for such Credit Parties are being filed or recorded,
setting forth substantially the matters in the opinions designated in EXHIBIT
VII-C annexed hereto with respect to such Credit Parties and Security Documents
and as to such other matters as Agent may reasonably request, all in form and
substance satisfactory to Agent and its counsel.
R. COMPLETION OF PROCEEDINGS. All corporate and other proceedings
taken or to be taken in connection with the transactions contemplated by the
Permitted Acquisition and all documents incidental thereto not previously found
acceptable by Agent and its counsel shall be satisfactory in form and substance
to Agent and such counsel, and Agent and its counsel shall have received all
such counterpart originals or certified copies of such documents as Agent may
reasonably request.
4.4 CONDITIONS TO ALL LOANS.
The obligations of Lenders to make Loans on each Funding Date are
subject to the following further conditions precedent:
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A. Agent shall have received before that Funding Date, in accordance
with the provisions of subsection 2.1B, an originally executed Notice of
Borrowing, in each case signed by the chief financial officer or treasurer of
Company on behalf of Company in a writing delivered to Agent.
B. As of that Funding Date:
(i) The representations and warranties contained herein and
in the other Loan Documents shall be true, correct and complete in all
material respects on and as of that Funding Date to the same extent as
though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date,
in which case such representations and warranties shall have been
true, correct and complete in all material respects on and as of such
earlier date;
(ii) No event shall have occurred and be continuing or would
result from the consummation of the borrowing contemplated by such
Notice of Borrowing that would constitute an Event of Default or a
Potential Event of Default;
(iii) Company shall have performed in all material respects
all agreements and satisfied all conditions which this Agreement
provides shall be performed or satisfied by it on or before that
Funding Date;
(iv) No order, judgment or decree of any court, arbitrator or
governmental authority shall purport to enjoin or restrain any Lender
from making the Loans to be made by it on that Funding Date;
(v) The making of the Loans requested on such Funding Date
shall not violate any law including, without limitation, Regulation G,
Regulation T, Regulation U or Regulation X of the Board of Governors
of the Federal Reserve System; and
(vi) There shall not be pending or, to the knowledge of
Company, threatened, any action, suit, proceeding, governmental
investigation or arbitration against or affecting any Credit Party or
any of its Subsidiaries or any property of such Credit Party or any of
its Subsidiaries that has not been disclosed by Company in writing
pursuant to subsection 5.6 or 6.1(x) prior to the making of the last
preceding Loans (or, in the case of the initial Loans, prior to the
execution of this Agreement), and there shall have occurred no
development not so disclosed in any such action, suit, proceeding,
governmental investigation or arbitration so disclosed, that, in
either event, in the opinion of Agent or of Requisite Lenders, would
be expected to have a Material Adverse Effect; and no injunction or
other restraining order shall have been issued and no hearing to cause
an injunction or other restraining order to be issued shall be pending
or noticed with respect to any action, suit or proceeding seeking to
enjoin or otherwise prevent the consummation of, or to recover any
damages or obtain relief as a result of, the transactions contemplated
by this Agreement or the making of Loans hereunder.
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4.5 CONDITIONS TO LETTERS OF CREDIT.
The issuance of any Letter of Credit hereunder is subject to the
following conditions precedent:
A. On or before the date of issuance of such Letter of Credit, Agent
shall have received, in accordance with the provisions of subsection 3.1B(i),
an originally executed Notice of Issuance of Letter of Credit, in each case
signed by the chief financial officer of Company on behalf of Company in a
writing delivered to Agent, together with all other information specified in
subsection 3.1B(i) and such other documents or information as Issuing Lender
may reasonably require in connection with the issuance of such Letter of
Credit.
B. On the date of issuance of such Letter of Credit, all conditions
precedent described in subsection 4.1A shall be satisfied to the same extent as
if the issuance of such Letter of Credit were the making of a Revolving Loan
and the date of issuance of such Letter of Credit were a Funding Date.
SECTION 5.
COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make
the Loans, to induce Issuing Lender to issue Letters of Credit and to induce
other Lenders to purchase participations therein, Company represents and
warrants to each Lender, on the date of this Agreement, on each Funding Date
and on the date of issuance of each Letter of Credit, that the following
statements are true, correct and complete:
5.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING, BUSINESS AND
SUBSIDIARIES.
A. ORGANIZATION AND POWERS. Each Credit Party is a corporation duly
organized, validly existing and in good standing under the laws of its state of
incorporation. Each Credit Party has all requisite corporate power and
authority to own and operate its properties, to carry on its business as now
conducted and as proposed to be conducted, to enter into the Loan Documents and
to carry out the transactions contemplated thereby.
B. QUALIFICATION AND GOOD STANDING. Each Credit Party is qualified to
do business and in good standing in every jurisdiction where its assets are
located and wherever necessary to carry out its business and operations, except
in jurisdictions where the failure to be so qualified or in good standing has
not had and will not have a Material Adverse Effect.
C. CONDUCT OF BUSINESS. The Credit Parties are engaged only in the
businesses permitted to be engaged in pursuant to subsection 7.13 and are
conducting their business in accordance with the provisions of subsection 7.13.
The Credit Parties hold all licenses (including, without limitation, FCC
Licenses), permits, franchises, certificates of authority, or any waivers of
the foregoing that are necessary to permit them to conduct their respective
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businesses as now conducted and to hold and operate their respective
properties. All such licenses, permits, franchises, certificates of authority,
and waivers are valid and in full force and effect.
D. SUBSIDIARIES. All of the Subsidiaries of Company as of the date of
this Agreement are identified in SCHEDULE 5.1D annexed hereto, as said SCHEDULE
5.1D may be supplemented from time to time pursuant to the provisions of
subsection 6.1(xvii). The capital stock of each Subsidiary of Company
identified in SCHEDULE 5.1D annexed hereto (as so supplemented) is duly
authorized, validly issued, fully paid and nonassessable and none of such
capital stock constitutes Margin Stock. Each Subsidiary of Company identified
in SCHEDULE 5.1D annexed hereto (as so supplemented) is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation set forth therein, has all requisite corporate
power and authority to own and operate its properties and to carry on its
business as now conducted and as proposed to be conducted, and is qualified to
do business and in good standing in every jurisdiction where its assets are
located and wherever necessary to carry out its business and operations, in
each case except where failure to be so qualified or in good standing or a lack
of such corporate power and authority has not had and will not have a Material
Adverse Effect. SCHEDULE 5.1D annexed hereto (as so supplemented) correctly
sets forth, as of the Closing Date (and as of the date said SCHEDULE 5.1D is so
supplemented), the ownership interest of Company and each of its Subsidiaries
in each of the Subsidiaries of Company identified therein.
E. FCC AND STATION MATTERS. Upon and following consummation of each
Acquisition, each of the following representations and warranties will be true,
correct and complete:
(i) SCHEDULE 5.1E annexed hereto correctly describes each of
the radio broadcast stations owned by any Credit Party.
(ii) SCHEDULE 5.1E correctly sets forth all of the FCC
Licenses (other than auxiliary service licenses) held by each Credit
Party and its Subsidiaries and correctly sets forth the termination
date, if any, of each such FCC License. Each FCC License was duly and
validly issued by the FCC pursuant to procedures which comply with all
requirements of applicable law and no Credit Party has any knowledge
of the occurrence of any event or the existence of any circumstance
which, in the reasonable judgment of such Credit Party, is likely to
lead to the revocation of any FCC License. The Credit Parties have the
right to use all FCC Licenses required in the ordinary course of
business for the Stations. Each such FCC License is in full force and
effect and the Credit Parties are in substantial compliance therewith
with no known conflict with the valid rights of others which could
have a Material Adverse Effect. No event has occurred which permits,
or after notice or lapse of time or both would permit, the revocation,
termination, modification or restriction of any such FCC License or
other right which could have a Material Adverse Effect. Each such FCC
License is held by the License Sub of the Operating Sub directly
operating the Station with respect to which such FCC License was
issued. No Credit Party has any reason to believe (other than in
connection
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with there being no legal assurance thereof) that the FCC Licenses
listed on Schedule 5.1E will not be renewed in the ordinary course.
(iii) Each Credit Party has duly filed in a timely manner all
filings which are required to be filed by such Credit Party under the
Communications Act and is in all material respects in compliance with
the Communications Act, including, without limitation, the rules and
regulations of the FCC relating to the broadcast of radio signals.
(iv) None of the Facilities (including without limitation,
the transmitter and tower sites owned or used by any Credit Party)
violate in any material respect the provisions of any applicable
building codes, fire regulations, building restrictions or other
governmental ordinances, orders or regulations and each such Facility
is zoned so as to permit the commercial uses intended by the owner or
occupier thereof and there are no outstanding variances or special use
permits materially affecting any of the Facilities or the uses
thereof.
(v) SCHEDULE 5.1E(V) annexed hereto correctly sets forth each
of the LMAs for Company or any of its Subsidiaries and sets forth the
termination date, if any, of each such agreement and the amounts
payable or receivable thereunder. Each such LMA is in full force and
effect, in compliance with the Communications Act, and Company and its
Subsidiaries are in substantial compliance with such LMA to the extent
each is a party thereto. Other than as contemplated in connection with
the exercise by Company or of any of its Subsidiaries of any option to
acquire any radio station which is the subject of such LMA, no event
has occurred which permits, or after notice or lapse of time would
permit, the early termination of any such LMA, and neither Company nor
any of its Subsidiaries has knowledge of any fact or circumstance
which is likely to result in the non-renewal of any LMA.
F. REAL PROPERTY. No Credit Party owns any interest in real property
other than the real property identified in SCHEDULE 5.1F annexed hereto.
G. COLLATERAL MATTERS. Other than as may be supplemented by written
notices delivered to Agent pursuant to the Pledge and Security Agreement:
(i) the chief executive office and principal place of
business of each Credit Party is as set forth in Part One of SCHEDULE
5.1G annexed hereto;
(ii) the office where each Credit Party keeps its records
concerning Accounts (as defined in the Pledge and Security Agreement)
and all originals of all chattel paper which evidence any Accounts are
located at the addresses specified for such Credit Party in Part Two
of SCHEDULE 5.1G annexed hereto;
(iii) the location where each Credit Party keeps any
Inventory (as defined in the Pledge and Security Agreement) is at the
address specified for such Credit Party in Part Three of SCHEDULE 5.1G
annexed hereto;
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(iv) other than as set forth in Part Four of SCHEDULE 5.1G
annexed hereto, no Credit Party does any business under any fictitious
business names or tradenames or has done business under any fictitious
business names or tradenames during the five years preceding the
Closing Date.
H. PERSONAL PROPERTY LIENS. Upon the filing of Uniform Commercial Code
financing statements naming each Credit Party as "debtor", naming Agent as
"secured party" and describing the Collateral (as defined in the Pledge and
Security Agreement) in the filing offices set forth in Part Five of SCHEDULE
5.1G annexed hereto, the security interests in such Collateral granted to Agent
for the benefit of Lenders will, to the extent a security interest in such
Collateral may be perfected by filing Uniform Commercial Code financing
statements, constitute valid and perfected security interests therein prior to
all other Liens (other than Permitted Liens) to the extent contemplated by the
Security Documents. The Pledged Collateral (as defined in the Pledge and
Security Agreement) has been duly and validly pledged to Agent on behalf of
Lenders pursuant to the Pledge and Security Agreement and the Pledge and
Security Agreement creates in favor of Agent on behalf of Lenders a valid,
perfected First Priority security interest in the Pledged Collateral as
security for the Secured Obligations (as such term is defined in the Pledge and
Security Agreement), subject to no equal or prior security interest, to the
extent contemplated by the Security Documents.
5.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION. The execution, delivery and performance of the Loan
Documents and the Related Documents have been duly authorized by all necessary
corporate action on the part of each Credit Party a party thereto.
B. NO CONFLICT. The execution, delivery and performance by each Credit
Party of the Loan Documents and the Related Documents to which such Credit
Party is a party, and the consummation of the transactions contemplated thereby
do not and will not (i) violate any provision of any law or any governmental
rule or regulation applicable to any Credit Party, the Certificate or Articles
of Incorporation or Bylaws of any Credit Party or any order, judgment or decree
of any court or other agency of government binding on any Credit Party, (ii)
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any Contractual Obligation of any Credit Party,
(iii) result in or require the creation or imposition of any Lien upon any of
the properties or assets of any Credit Party (other than any Liens created
under any of the Loan Documents in favor of Agent on behalf and for the ratable
benefit of Lenders), or (iv) require any approval of stockholders or any
approval or consent of any Person under any Contractual Obligation of any
Credit Party, except for such approvals or consents which will be obtained on
or before the Closing Date and disclosed in writing to Lenders.
C. GOVERNMENTAL CONSENTS. The execution, delivery and performance by
each Credit Party of the Loan Documents and the Related Documents to which it
is party and the consummation of the transactions contemplated thereby do not
and will not require any registration with, consent or approval of, or notice
to, or other action to, with or by, any
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federal, state or other governmental authority or regulatory body including,
without limitation, the FCC, EXCEPT for filings required in connection with the
perfection of the security interests or the exercise of the rights granted
pursuant to the Security Documents and filings required with the FCC in
connection with the Acquisitions contemplated by the Permitted Acquisition
Documents.
D. BINDING OBLIGATION. Each of the Loan Documents and the Related
Documents has been duly executed and delivered by each Credit Party a party
thereto and is the legally valid and binding obligation of each such Credit
Party, enforceable against each such Credit Party in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
5.3 FINANCIAL CONDITION.
Company has heretofore delivered to Lenders, at Lenders' request, the
financial statements described in subsection 4.2E. All such statements were
prepared in conformity with GAAP and fairly present the financial position (on
a consolidated and, where applicable, consolidating basis) of the entities
described in such financial statements as at the respective dates thereof and
the results of operations and cash flows (on a consolidated and, where
applicable, consolidating basis) of the entities described therein for each of
the periods then ended, subject, in the case of any such unaudited financial
statements, to changes resulting from audit and normal year-end adjustments and
the absence of footnotes. Company and its Subsidiaries do not (and will not
following the funding of the initial Loans) have any Contingent Obligation,
contingent liability or liability for taxes, long-term lease or unusual forward
or long-term commitment that is not reflected in the foregoing financial
statements or the notes thereto and which in any such case is material in
relation to the business, operations, properties, assets, condition (financial
or otherwise) or prospects of Company or any of its Subsidiaries.
5.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED JUNIOR PAYMENTS.
Since December 31, 1996, no event or change has occurred that has
caused or evidences, either in any case or in the aggregate, a Material Adverse
Effect. Except as set forth on SCHEDULE 5.4, neither Company nor any of its
Subsidiaries has directly or indirectly declared, ordered, paid or made, or set
apart any sum or property for, any Restricted Junior Payment or agreed to do so
except as permitted by subsection 7.5.
5.5 TITLE TO PROPERTIES; LIENS.
The Credit Parties have (i) good, sufficient and legal title to (in
the case of fee interests in real property), (ii) valid leasehold interests in
(in the case of leasehold interests in real or personal property), or (iii)
good title to (in the case of all other personal property), all of their
respective properties and assets reflected in the financial statements referred
to in subsection 5.3 or in the most recent financial statements delivered
pursuant to subsection 6.1, in each case except for assets disposed of since
the date of such financial statements in the ordinary course
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of business or as otherwise permitted under subsection 7.7. Except for
Permitted Liens, all such properties and assets are free and clear of Liens.
5.6 LITIGATION; ADVERSE FACTS.
There are no actions, suits, proceedings, arbitrations or governmental
investigations (whether or not purportedly on behalf of any Credit Party) at
law or in equity or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, including, without limitation, the FCC, pending or, to the
knowledge of any Credit Party, threatened against or affecting any Credit Party
or any property of any Credit Party that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect. No Credit
Party is (i) in violation of any applicable laws that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect
or (ii) subject to or in default with respect to any final judgments, writs,
injunctions, decrees, rules or regulations of any court or any federal, state,
municipal or other governmental department, commission, board, bureau, agency
or instrumentality, domestic or foreign, that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect.
5.7 PAYMENT OF TAXES.
Except to the extent permitted by subsection 6.3 or as set forth in
SCHEDULE 5.7 annexed hereto, all tax returns and reports of each Credit Party
required to be filed by any of them have been timely filed, and all taxes,
assessments, fees and other governmental charges upon each Credit Party and
upon its properties, assets, income, businesses and franchises which are due
and payable have been paid when due and payable. No Credit Party knows of any
proposed tax assessment against any Credit Party or any of its Subsidiaries
which is not being actively contested by such Credit Party or Subsidiary in
good faith and by appropriate proceedings; PROVIDED that such reserves or other
appropriate provisions, if any, as shall be required in conformity with GAAP
shall have been made or provided therefor.
5.8 PERFORMANCE OF AGREEMENTS; MATERIALLY ADVERSE AGREEMENTS.
A. No Credit Party is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any
of its Contractual Obligations, and no condition exists that, with the giving
of notice or the lapse of time or both, would constitute such a default, except
where the consequences, direct or indirect, of such default or defaults, if
any, would not have a Material Adverse Effect.
B. No Credit Party is a party to or is otherwise subject to any
agreements or instruments or any charter or other internal restrictions which,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.
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5.9 GOVERNMENTAL REGULATION.
No Credit Party is subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the Interstate Commerce Act
or the Investment Company Act of 1940 or under any other federal or state
statute or regulation which may limit its ability to incur Indebtedness or
which may otherwise render all or any portion of the Obligations unenforceable.
5.10 SECURITIES ACTIVITIES.
A. No Credit Party is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing
or carrying any Margin Stock.
B. Following application of the proceeds of each Loan, not more than
25% of the value of the assets (either of a Credit Party alone or of a Credit
Party together with its Subsidiaries on a consolidated basis) subject to the
provisions of subsection 7.2 or 7.7 or subject to any restriction contained in
any agreement or instrument, between Company and any Lender or any Affiliate of
any Lender, relating to Indebtedness and within the scope of subsection 7.2,
will be Margin Stock.
5.11 EMPLOYEE BENEFIT PLANS.
A. Each Credit Party and each of its ERISA Affiliates are in
compliance in all material respects with all applicable provisions and
requirements of ERISA and the regulations and published interpretations
thereunder with respect to each Employee Benefit Plan, and have performed all
their obligations under each Employee Benefit Plan.
B. No ERISA Event has occurred or is reasonably expected to occur.
C. Except to the extent required under Section 4980B of the Internal
Revenue Code, no Employee Benefit Plan provides health or welfare benefits
(through the purchase of insurance or otherwise) for any retired or former
employees of any Credit Party or any of its ERISA Affiliates.
D. As of the most recent valuation date for any Pension Plan, the
amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities), does not exceed $100,000.
5.12 CERTAIN FEES.
Except as set forth in SCHEDULE 5.12, no broker's or finder's fee or
commission will be payable with respect to this Agreement or any of the
transactions contemplated hereby, and Company hereby indemnifies Lenders
against, and agrees that it will hold Lenders harmless from, any claim, demand
or liability for any such broker's or finder's fees alleged to have been
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incurred in connection herewith or therewith and any expenses (including
reasonable fees, expenses and disbursements of counsel) arising in connection
with any such claim, demand or liability.
5.13 ENVIRONMENTAL PROTECTION.
Except as set forth in SCHEDULE 5.13 annexed hereto:
(i) the operations of each Credit Party (including, without
limitation, all operations and conditions at or in the Facilities)
comply in all material respects with all Environmental Laws;
(ii) each Credit Party has obtained all Governmental
Authorizations under Environmental Laws necessary to its operations,
and all such Governmental Authorizations are in good standing, and
each Credit Party is in compliance with all material terms and
conditions of such Governmental Authorizations;
(iii) no Credit Party has received (a) any notice or claim to
the effect that it is or may be liable to any Person as a result of or
in connection with any Hazardous Materials or (b) any letter or
request for information under Section 104 of the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C. ss.
9604) or comparable state laws, and, to the best of each Credit
Party's knowledge, none of the operations of any Credit Party is the
subject of any federal or state investigation relating to or in
connection with any Hazardous Materials at any Facility or at any
other location;
(iv) none of the operations of any Credit Party is subject to
any judicial or administrative proceeding alleging the violation of or
liability under any Environmental Laws which if adversely determined
could reasonably be expected to have a Material Adverse Effect;
(v) no Credit Party nor any of its Facilities or operations
are subject to any outstanding written order or agreement with any
governmental authority or private party relating to (a) any
Environmental Laws or (b) any Environmental Claims;
(vi) no Credit Party has any contingent liability in
connection with any Release of any Hazardous Materials by such Credit
Party or any of its Subsidiaries;
(vii) no Credit Party nor, to the best knowledge of each
Credit Party, any predecessor of such Credit Party or its Subsidiaries
has filed any notice under any Environmental Law indicating past or
present treatment or Release of Hazardous Materials at any Facility,
and none of any Credit Party's or any of its Subsidiaries' operations
involves the generation, transportation, treatment, storage or
disposal of hazardous waste, as defined under 40 C.F.R. Parts 260-270
or any state equivalent;
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(viii) no Hazardous Materials exist on, under or about any
Facility in a manner that has a reasonably possibility of giving rise
to an Environmental Claim having a Material Adverse Effect, and no
Credit Party has filed any notice or report of a Release of any
Hazardous Materials that has a reasonable possibility of giving rise
to an Environmental Claim having a Material Adverse Effect;
(ix) no Credit Party nor, to the best knowledge of each
Credit Party, any of its predecessors has disposed of any Hazardous
Materials in a manner that has a reasonable possibility of giving rise
to an Environmental Claim having a Material Adverse Effect;
(x) no underground storage tanks or surface impoundments are
on or at any Facility; and
(xi) no Lien in favor of any Person relating to or in
connection with any Environmental Claim has been filed or has been
attached to any Facility.
5.14 EMPLOYEE MATTERS.
There is no strike or work stoppage in existence or threatened
involving any Credit Party that could reasonably be expected to have a Material
Adverse Effect.
5.15 SOLVENCY.
Each Credit Party is and, upon the incurrence of any Obligations by
such Credit Party on any date on which this representation is made, will be,
Solvent.
5.16 INSURANCE
Each Credit Party maintains, with, to its knowledge, financially sound
and reputable insurers, insurance with respect to its properties and business
and the properties and business of its Subsidiaries, against loss or damage of
the kinds customarily insured against by corporations of established reputation
engaged in the same or similar business of such types and in such amounts as
are customarily carried under similar circumstances by such other corporations.
Attached as SCHEDULE 5.16 hereto is a complete and accurate description of all
policies of insurance that will be in effect as of the Closing Date for the
Credit Parties.
5.17 INTELLECTUAL PROPERTY
A. The Credit Parties own, or are licensed to use, the Intellectual
Property and have taken all actions as is customary in the ordinary course of
business to protect such Intellectual Property.
B. No material claim has been asserted by any Person with respect to
the use of any such Intellectual Property, or challenging or questioning the
validity or effectiveness of any such
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Intellectual Property. To each Credit Party's knowledge, the use of such
Intellectual Property by such Credit Party does not infringe on the rights of
any Person, subject to such claims and infringements as do not, in the
aggregate, give rise to any liabilities on the part of any Credit Party that
are material to such Credit Party. The consummation of the transactions
contemplated by this Agreement will not impair the ownership of (or the license
to use, as the case may be) any of such Intellectual Property by any Credit
Party.
5.18 DISCLOSURE.
No representation or warranty of any Credit Party contained in any
Loan Document or Related Document or in any other document, certificate or
written statement furnished to Lenders by or on behalf of such Credit Party or
its Subsidiaries for use in connection with the transactions contemplated by
this Agreement contains any untrue statement of a material fact or omits to
state a material fact (known to such Credit Party, in the case of any document
not furnished by it) necessary in order to make the statements contained herein
or therein not misleading in light of the circumstances in which the same were
made. Any projections and pro forma financial information contained in such
materials are based upon good faith estimates and assumptions believed by each
Credit Party to be reasonable at the time made, it being recognized by Lenders
that such projections as to future events are not to be viewed as facts and
that actual results during the period or periods covered by any such
projections may differ from the projected results. There are no facts known (or
which should upon the reasonable exercise of diligence be known) to any Credit
Party (other than matters of a general economic nature) that, individually or
in the aggregate, could reasonably be expected to result in a Material Adverse
Effect and that have not been disclosed herein or in such other documents,
certificates and statements furnished to Lenders for use in connection with the
transactions contemplated hereby.
SECTION 6.
COMPANY'S AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each other Credit Party to perform, all
covenants in this Section 6.
6.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Company will maintain, and cause each of its Subsidiaries to maintain,
a system of accounting established and administered in accordance with sound
business practices to permit preparation of financial statements in conformity
with GAAP. Company will deliver to Agent and Lenders:
(i) MONTHLY FINANCIALS: as soon as available and in any event
within 30 days after the end of each month ending after the Closing
Date, copies of the monthly sales
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reports and cash flow for such month of each Station as furnished to
Company by each Station.
(ii) QUARTERLY FINANCIALS: as soon as available and in any
event within 45 days after the end of each Fiscal Quarter, (a) the
consolidated balance sheet of Company and its Subsidiaries as at the
end of such Fiscal Quarter and the related consolidated statements of
income, stockholders' equity and cash flows of Company and its
Subsidiaries for such Fiscal Quarter and for the period from the
beginning of the then current Fiscal Year to the end of such Fiscal
Quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous
Fiscal Year and the corresponding figures from the Financial Plan for
the current Fiscal Year, all in reasonable detail and certified by the
chief financial officer of Company that they fairly present, in all
material respects, the financial condition of Company and its
Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, subject to
changes resulting from audit and normal year-end adjustments, and (b)
a narrative report describing the operations of Company and its
Subsidiaries in the form prepared for presentation to senior
management for such Fiscal Quarter and for the period from the
beginning of the then current Fiscal Year to the end of such Fiscal
Quarter;
(iii) YEAR-END FINANCIALS: as soon as available and in any
event within 120 days after the end of each Fiscal Year, (a) the
consolidated balance sheet of Company and its Subsidiaries as at the
end of such Fiscal Year and the related consolidated statements of
income, stockholders' equity and cash flows of Company and its
Subsidiaries for such Fiscal Year, setting forth in each case in
comparative form the corresponding figures for the previous Fiscal
Year and the corresponding figures from the Financial Plan for the
Fiscal Year covered by such financial statements, all in reasonable
detail and certified by the chief financial officer of Company that
they fairly present, in all material respects, the financial condition
of Company and its Subsidiaries as at the dates indicated and the
results of their operations and their cash flows for the periods
indicated, (b) a narrative report describing the operations of Company
and its Subsidiaries in the form prepared for presentation to senior
management for such Fiscal Year, and (c) in the case of such
consolidated financial statements, a report thereon of Coopers &
Xxxxxxx or other independent certified public accountants of
recognized national standing selected by Company and satisfactory to
Agent, which report shall be unqualified, shall express no doubts
about the ability of Company and its Subsidiaries to continue as a
going concern, and shall state that such consolidated financial
statements fairly present, in all material respects, the consolidated
financial position of Company and its Subsidiaries as at the dates
indicated and the results of their operations and their cash flows for
the periods indicated in conformity with GAAP applied on a basis
consistent with prior years (except as otherwise disclosed in such
financial statements) and that the examination by such accountants in
connection with such consolidated financial statements has been made
in accordance with generally accepted auditing standards;
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(iv) OFFICERS' AND COMPLIANCE CERTIFICATES: together with
each delivery of financial statements of Company and its Subsidiaries
pursuant to subdivisions (ii) and (iii) above, (a) an Officers'
Certificate of Company stating that the signers have reviewed the
terms of this Agreement and have made, or caused to be made under
their supervision, a review in reasonable detail of the transactions
and condition of Company and its Subsidiaries during the accounting
period covered by such financial statements and that such review has
not disclosed the existence during or at the end of such accounting
period, and that the signers do not have knowledge of the existence as
at the date of such Officers' Certificate, of any condition or event
that constitutes an Event of Default or Potential Event of Default,
or, if any such condition or event existed or exists, specifying the
nature and period of existence thereof and what action Company has
taken, is taking and proposes to take with respect thereto; and (b)
beginning with the earlier of (x) the Closing Date and (y) the fiscal
period ending March 31, 1998, a Compliance Certificate demonstrating
in reasonable detail compliance during and at the end of the
applicable accounting periods with the restrictions contained in
Section 7;
(v) RECONCILIATION STATEMENTS: if, as a result of any change
in accounting principles and policies from those used in the
preparation of the audited financial statements referred to in
subsection 5.3, the consolidated financial statements of Company and
its Subsidiaries delivered pursuant to subdivisions (i), (ii), (iii)
or (xiii) of this subsection 6.1 will differ in any material respect
from the consolidated financial statements that would have been
delivered pursuant to such subdivisions had no such change in
accounting principles and policies been made, then (a) together with
the first delivery of financial statements pursuant to subdivision
(i), (ii), (iii) or (xiii) of this subsection 6.1 following such
change, consolidated financial statements of Company and its
Subsidiaries for (y) the current Fiscal Year to the effective date of
such change and (z) the two full Fiscal Years immediately preceding
the Fiscal Year in which such change is made, in each case prepared on
a pro forma basis as if such change had been in effect during such
periods, and (b) together with each delivery of financial statements
pursuant to subdivision (i), (ii), (iii) or (xiii) of this subsection
6.1 following such change, a written statement of the chief accounting
officer or chief financial officer of Company setting forth the
differences which would have resulted if such financial statements had
been prepared without giving effect to such change;
(vi) ACCOUNTANTS' CERTIFICATION: together with each delivery
of consolidated financial statements of Company and its Subsidiaries
pursuant to subdivision (iii) above, a written statement by the
independent certified public accountants giving the report thereon (a)
stating that their audit examination has included a review of the
terms of this Agreement and the other Loan Documents as they relate to
accounting matters, (b) stating whether, in connection with their
audit examination, any condition or event that constitutes an Event of
Default or Potential Event of Default has come to their attention and,
if such a condition or event has come to their attention, specifying
the nature and period of existence thereof; PROVIDED that such
accountants shall not be liable by reason of any failure to obtain
knowledge of any such Event of Default or Potential Event of Default
that would not be disclosed in the course of their audit examination,
and (c)
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stating that based on their audit examination nothing has come to
their attention that causes them to believe either or both that the
information contained in the certificates delivered therewith pursuant
to subdivision (iv) above is not correct or that the matters set forth
in the Compliance Certificates delivered therewith pursuant to clause
(b) of subdivision (iv) above for the applicable Fiscal Year are not
stated in accordance with the terms of this Agreement;
(vii) ACCOUNTANTS' REPORTS: promptly upon receipt thereof
(unless restricted by applicable professional standards), copies of
all reports submitted to Company by independent certified public
accountants in connection with each annual, interim or special audit
of the financial statements of Company and its Subsidiaries made by
such accountants, including, without limitation, any comment letter
submitted by such accountants to management in connection with their
annual audit;
(viii) SEC FILINGS AND PRESS RELEASES: promptly upon their
becoming available, copies of (a) all financial statements, reports,
notices and proxy statements sent or made available generally by
Company to its security holders or by any Subsidiary of Company to its
security holders other than Company or another Subsidiary of Company,
(b) all regular and periodic reports and all registration statements
(other than on Form S-8 or a similar form) and prospectuses, if any,
filed by Company or any of its Subsidiaries with any securities
exchange or with the Securities and Exchange Commission or any
governmental or private regulatory authority, (c) copies of all
material information required to be filed by Company or any of its
Subsidiaries with the FCC and (d) all press releases and other
statements made available generally by Company or any of its
Subsidiaries to the public concerning material developments in the
business of Company or any of its Subsidiaries;
(ix) EVENTS OF DEFAULT, ETC.: promptly upon any officer of
any Credit Party obtaining knowledge (a) of any condition or event
that constitutes an Event of Default or Potential Event of Default, or
becoming aware that any Lender has given any notice (other than to
Agent) or taken any other action with respect to a claimed Event of
Default or Potential Event of Default, (b) that any Person has given
any notice to any Credit Party or any of its Subsidiaries or taken any
other action with respect to a claimed default or event or condition
of the type referred to in subsection 8.2, (c) of any condition or
event that would be required to be disclosed in a current report filed
by Company with the Securities and Exchange Commission on Form 8-K
(Items 1, 2, 4, 5 and 6 of such Form as in effect on the date hereof)
if Company were required to file such reports under the Exchange Act,
or (d) of the occurrence of any event or change that has caused or
evidences, either in any case or in the aggregate, a Material Adverse
Effect, an Officers' Certificate specifying the nature and period of
existence of such condition, event or change, or specifying the notice
given or action taken by any such Person and the nature of such
claimed Event of Default, Potential Event of Default, default, event
or condition, and what action such Credit Party has taken, is taking
and proposes to take with respect thereto;
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(x) LITIGATION OR OTHER PROCEEDINGS: (a) promptly upon any
officer of any Credit Party obtaining knowledge of (X) the institution
of, or non-frivolous threat of, any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration against or affecting any Credit Party or any property of
any Credit Party (collectively, "PROCEEDINGS") not previously
disclosed in writing by the Credit Parties to Lenders or (Y) any
material development in any Proceeding that, in any case:
(1) if adversely determined, has a reasonable
possibility of giving rise to a Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief
as a result of, the transactions contemplated hereby;
written notice thereof together with such other non-privileged
information as may be reasonably available to the Credit Parties to
enable Lenders and their counsel to evaluate such matters; and (b)
within forty-five days after the end of each Fiscal Quarter of
Company, a schedule of all Proceedings involving an alleged liability
of, or claims against or affecting, any Credit Party equal to or
greater than $100,000, and promptly after request by Agent such other
non-privileged information as may be reasonably requested by Agent to
enable Agent and its counsel to evaluate any of such Proceedings;
(xi) ERISA EVENTS: promptly upon becoming aware of the
occurrence of or forthcoming occurrence of any ERISA Event, a written
notice specifying the nature thereof, what action the Credit Parties
or any of their ERISA Affiliates have taken, are taking or propose to
take with respect thereto and, when known, any action taken or
threatened by the Internal Revenue Service, the Department of Labor or
the PBGC with respect thereto;
(xii) ERISA NOTICES: with reasonable promptness, copies of
(a) each SCHEDULE B (Actuarial Information) to the annual report (Form
5500 Series) filed by any Credit Party or any of its ERISA Affiliates
with the Internal Revenue Service with respect to each Pension Plan;
(b) all notices received by any Credit Party or any of its ERISA
Affiliates from a Multiemployer Plan sponsor concerning an ERISA
Event; and (c) such other documents or governmental reports or filings
relating to any Employee Benefit Plan as Agent shall reasonably
request;
(xiii) FINANCIAL PLANS: as soon as practicable and in any
event no later than 30 days following the beginning of each Fiscal
Year, a consolidated and consolidating plan and financial forecast for
such Fiscal Year including without limitation (a) a forecasted
consolidated balance sheet and forecasted consolidated and
consolidating statements of income and cash flows of Company and its
Subsidiaries for such Fiscal Year and an explanation of the
assumptions on which such forecasts are based, (b) the amount of
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forecasted unallocated Overhead for each such Fiscal Year, and (c)
such other information and projections as any Lender may reasonably
request;
(xiv) INSURANCE: as soon as practicable and in any event
within 120 days after the end of each Fiscal Year, a report in form
and substance satisfactory to Agent outlining all material insurance
coverage maintained as of the date of such report by Company and its
Subsidiaries and all material insurance coverage planned to be
maintained by Company and its Subsidiaries in the immediately
succeeding Fiscal Year;
(xv) ENVIRONMENTAL AUDITS AND REPORTS: as soon as practicable
following receipt thereof, copies of all environmental audits and
reports, whether prepared by personnel of Company or any of its
Subsidiaries or by independent consultants, with respect to
significant environmental matters at any Facility or which relate to
an Environmental Claim which could result in a Material Adverse
Effect;
(xvi) BOARD OF DIRECTORS: with reasonable promptness, written
notice of any change in the Board of Directors of Company or any of
its Subsidiaries;
(xvii) NEW SUBSIDIARY: promptly upon any Person becoming a
Subsidiary of Company, a written notice setting forth with respect to
such Person (a) the date on which such Person became a Subsidiary of
Company and (b) all of the data required to be set forth in SCHEDULE
5.1D annexed hereto with respect to all Subsidiaries of Company (it
being understood that such written notice shall be deemed to
supplement SCHEDULE 5.1D annexed hereto for all purposes of this
Agreement;
(xviii) BROADCASTING RATINGS: upon the request of Agent, all
copies of subscribed Arbitron rating books (winter, fall, spring,
summer) with respect to the Stations, in a form agreed upon by the
Credit Parties and Agent;
(xix) OTHER INFORMATION: with reasonable promptness, such
other information and data with respect to any Credit Party or any of
its Affiliates as from time to time may be reasonably requested by any
Lender.
6.2 CORPORATE EXISTENCE, ETC.
Except as permitted under subsection 7.7, each Credit Party will, and
will cause each of its Subsidiaries to, at all times (a) preserve and keep in
full force and effect its corporate existence and all rights and franchises
material to its business and (b) comply with all material provisions of all
franchises and licenses, all FCC Licenses, material agreements and leases to
which it is a party, and shall suffer no loss or forfeiture thereof or
thereunder.
6.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION.
A. Each Credit Party will, and will cause each of its Subsidiaries to,
pay all taxes, assessments and other governmental charges imposed upon it or
any of its properties or assets
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or in respect of any of its income, businesses or franchises before any penalty
accrues thereon, and all claims (including, without limitation, claims for
labor, services, materials and supplies) for sums that have become due and
payable and that by law have or may become a Lien upon any of its properties or
assets, prior to the time when any penalty or fine shall be incurred with
respect thereto; PROVIDED that no such charge or claim need be paid if being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted and if such reserve or other appropriate provision, if
any, as shall be required in conformity with GAAP shall have been made
therefor.
B. No Credit Party will file or consent to the filing of any
consolidated income tax return with any Person (other than the other Credit
Parties).
6.4 MAINTENANCE OF PROPERTIES; INSURANCE.
Each Credit Party will, and will cause each of its Subsidiaries to,
maintain or cause to be maintained in good repair, working order and condition,
ordinary wear and tear excepted, all material properties used or useful in the
business of such Credit Party and its Subsidiaries (including, without
limitation, Intellectual Property ) and from time to time will make or cause to
be made all appropriate repairs, renewals and replacements thereof. Each Credit
Party will maintain or cause to be maintained, with financially sound and
reputable insurers, insurance with respect to its properties and business and
the properties and businesses of its Subsidiaries against loss or damage of the
kinds customarily carried or maintained under similar circumstances by
corporations of established reputation engaged in similar businesses. Each such
policy of insurance shall name Agent as the loss payee and/or additional
insured thereunder, for the ratable benefit of Lenders, and shall provide for
at least 30 days prior written notice to Agent of any material modification or
cancellation of such policy.
6.5 INSPECTION; LENDER MEETING.
Subject to subsection 10.19, each Credit Party shall, and shall cause
each of its Subsidiaries to, permit any authorized representatives designated
by any Lender to visit and inspect any of the properties of such Credit Party
or any of its Subsidiaries, including its and their financial and accounting
records, and to make copies and take extracts therefrom, and to discuss their
affairs, finances and accounts with its and their officers and independent
public accountants (provided that such Credit Party may, if it so chooses, be
present at or participate in any such discussion), all upon reasonable notice
and at such reasonable times during normal business hours and as often as may
be reasonably requested. Without in any way limiting the foregoing, each Credit
Party will, upon the request of Agent or Requisite Lenders, participate in a
meeting of Agent and Lenders once during each Fiscal Year to be held at such
Credit Party's corporate offices (or such other location as may be agreed to by
such Credit Party and Agent) at such time as may be agreed to by such Credit
Party and Agent.
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6.6 COMPLIANCE WITH LAWS, ETC.
Each Credit Party shall, and shall cause each of its Subsidiaries to,
comply with the requirements of all applicable laws, rules, regulations and
orders of any governmental authority, noncompliance with which could reasonably
be expected to cause a Material Adverse Effect.
6.7 ENVIRONMENTAL DISCLOSURE AND INSPECTION.
A. Each Credit Party shall, and shall cause each of its Subsidiaries
to, exercise all reasonable due diligence in order to comply and cause (i) all
tenants under any leases or occupancy agreements affecting any portion of the
Facilities and (ii) all other Persons on or occupying such property, to comply
with all Environmental Laws.
B. Each Credit Party agrees that Agent may, from time to time and in
its sole and absolute discretion, retain an independent professional consultant
to review any report relating to Hazardous Materials prepared by or for such
Credit Party and to conduct its own investigation of any Facility currently
owned, leased, operated or used by such Credit Party or any of its
Subsidiaries, and each Credit Party agrees to use its best efforts to obtain
permission for Agent's professional consultant to conduct its own investigation
of any Facility previously owned, leased, operated or used by such Credit Party
or any of its Subsidiaries. Each Credit Party agrees to pay all reasonable
fees, costs, expenses incurred by Agent's professional consultant hereunder (i)
after the occurrence and during the continuation of an Event of Default or
Potential Event of Default, (ii) in connection with Agent and Lender's exercise
of its remedies hereunder or under any of the other Loan Documents, or (iii) in
the event that Agent in its reasonable discretion determines that there exists
a material risk of an Environmental Claim which could result in a Material
Adverse Effect. Each Credit Party hereby grants to Agent and its agents,
employees, consultants and contractors the right to enter into or on to the
Facilities currently owned, leased, operated or used by such Credit Party or
any of its Subsidiaries to perform such tests on such property as are
reasonably necessary to conduct such a review and/or investigation. Any such
investigation of any Facility shall be conducted, unless otherwise agreed to by
such Credit Party and Agent, upon reasonable advanced notice and during normal
business hours and, to the extent reasonably practicable, shall be conducted so
as not to interfere with the ongoing operations at any such Facility or to
cause any damage or loss to any property at such Facility. Each Credit Party
and Agent hereby acknowledge and agree that any report of any investigation
conducted at the request of Agent pursuant to this subsection 6.7B will be
obtained and shall be used by Agent and Lenders for the purposes of Lenders'
internal credit decisions, to monitor and police the Loans and to protect
Lenders' security interests, if any, created by the Loan Documents. Agent
agrees to deliver a copy of any such report to such Credit Party with the
understanding that such Credit Party acknowledges and agrees that (i) it will
indemnify and hold harmless Agent and each Lender from any costs, losses or
liabilities relating to such Credit Party's use of or reliance on such report,
(ii) neither Agent nor any Lender makes any representation or warranty with
respect to such report, and (iii) by delivering such report to such Credit
Party, neither Agent nor any Lender is requiring or recommending the
implementation of any suggestions or recommendations contained in such report.
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C. Each Credit Party shall promptly advise Lenders in writing and in
reasonable detail of (i) any Release of any Hazardous Materials required to be
reported to any federal, state or local governmental or regulatory agency under
any applicable Environmental Laws, (ii) any and all written communications with
respect to any Environmental Claims that have a reasonable possibility of
giving rise to a Material Adverse Effect or with respect to any Release of
Hazardous Materials required to be reported to any federal, state or local
governmental or regulatory agency, (iii) any remedial action taken by such
Credit Party or any other Person in response to (x) any Hazardous Materials on,
under or about any Facility, the existence of which has a reasonable
possibility of resulting in an Environmental Claim having a Material Adverse
Effect, or (y) any Environmental Claim that could have a Material Adverse
Effect, (iv) such Credit Party's discovery of any occurrence or condition on
any real property adjoining or in the vicinity of any Facility that could cause
such Facility or any part thereof to be subject to any restrictions on the
ownership, occupancy, transferability or use thereof under any Environmental
Laws, and (v) any request for information from any governmental agency that
suggests such agency is investigating whether such Credit Party or any of its
Subsidiaries may be potentially responsible for a Release of Hazardous
Materials.
D. Each Credit Party shall promptly notify Lenders of (i) any proposed
acquisition of stock, assets, or property by such Credit Party or any of its
Subsidiaries that could reasonably be expected to expose such Credit Party or
any of its Subsidiaries to, or result in, Environmental Claims that could have
a Material Adverse Effect or that could reasonably be expected to have a
material adverse effect on any Governmental Authorization then held by such
Credit Party or any of its Subsidiaries and (ii) any proposed action to be
taken by such Credit Party or any of its Subsidiaries to commence
manufacturing, industrial or other operations that could reasonably be expected
to subject such Credit Party or any of its Subsidiaries to additional laws,
rules or regulations, including, without limitation, laws, rules and
regulations requiring additional environmental permits or licenses.
E. Each Credit Party shall, at its own expense, provide copies of such
documents or information in such Credit Party's possession or obtainable at a
reasonable cost as Agent may reasonably request in relation to any matters
disclosed pursuant to this subsection 6.7.
6.8 COMPANY'S REMEDIAL ACTION REGARDING HAZARDOUS MATERIALS.
Each Credit Party shall promptly take, and shall cause each of its
Subsidiaries promptly to take, any and all necessary remedial action in
connection with the presence, storage, use, disposal, transportation or Release
of any Hazardous Materials on, under or about any Facility in order to comply
with all applicable Environmental Laws and Governmental Authorizations, except
when, and only to the extent that, such Credit Party's liability for such
presence, storage, use, disposal, transportation or discharge of any Hazardous
Materials is being contested in good faith by such Credit Party. In the event
any Credit Party or any of its Subsidiaries undertakes any remedial action with
respect to any Hazardous Materials on, under or about any Facility, such Credit
Party or such Subsidiary shall conduct and complete such remedial action in
substantial compliance with all applicable Environmental Laws, and in
accordance with the policies, orders and directives of all federal, state and
local governmental authorities.
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6.9 INTEREST RATE PROTECTION.
So long as the Consolidated Total Debt Ratio is greater than
4.00:1.00, at all times after the date which is 60 days after the Closing Date,
Company shall maintain in effect one or more Interest Rate Agreements with
respect to the Loans, in an aggregate notional principal amount at any time of
not less than an amount equal to 50% of the then outstanding principal balance
of the Loans, which Interest Rate Agreements shall have the effect of
establishing a maximum interest rate satisfactory to Agent with respect to such
notional principal amount, each such Interest Rate Agreement to be in form and
substance reasonably satisfactory to Agent and with a term of not less than two
years.
6.10 COMPLIANCE WITH RELATED DOCUMENTS.
Each Credit Party shall comply at all times with each of the covenants
under the Related Documents to which such Credit Party is a party. Material
waivers from compliance by such Credit Party or any other Person with the
obligations specified in such Related Documents shall not be effective as
waivers hereunder unless consented to in writing by Requisite Lenders.
6.11 TRANSFER OF FCC LICENSES TO LICENSE SUBS.
On or before the thirtieth (30th) day following the Closing Date or
the date of consummation of any Permitted Acquisition, as applicable, Company
shall have transferred or shall have caused to be transferred all of the FCC
Licenses held or acquired on or prior to such date by Company or any Operating
Sub of Company to the respective License Sub pursuant to an appropriate
Transfer FCC Consent which shall be a Final Order, and such FCC Licenses shall
be subject to an Operating Agreement substantially in the form of EXHIBIT XII
annexed hereto, and Company, each Operating Sub and each License Sub shall have
delivered to Agent all documents and instruments evidencing such assignment and
transfer and an opinion of counsel, satisfactory in form and substance to
Agent, with respect to such transfer and FCC Licenses substantially in the form
of the corresponding opinion of counsel delivered on the Closing Date.
6.12 SALE OF THE SAN DIEGO STATION, THE LEXINGTON STATION AND THE
CHARLESTON STATIONS.
In the event that any of the San Diego Station, the Lexington Station
or the Charleston Stations are still owned or operated by a Credit Party on the
date which is the one year anniversary of the Closing Date, Company and its
subsidiaries shall deliver, or cause to be delivered, (i) each of the documents
set forth in subsection 4.2B and satisfy each of the conditions set forth in
subsection 4.2B with respect to the real property assets related thereto and
(ii) copies of the Phase I environmental assessments for each tower or antenna
Facility and any other owned Facility related to such Station or Stations,
together with such other information, in form and substance satisfactory to
Agent, concerning environmental matters that Agent may require, in each case as
if such one year anniversary date were the Closing Date.
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SECTION 7.
COMPANY'S NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each other Credit Party to perform, all
covenants in this Section 7.
7.1 INDEBTEDNESS.
The Credit Parties shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly, create, incur, assume or
guaranty, or otherwise become or remain directly or indirectly liable with
respect to, any Indebtedness, except:
(i) The Credit Parties may become and remain liable with
respect to the Obligations;
(ii) Company and the Operating Subsidiaries may become and
remain liable with respect to Contingent Obligations permitted by
subsection 7.4 and, upon any matured obligations actually arising
pursuant thereto, the Indebtedness corresponding to the Contingent
Obligations so extinguished;
(iii) Company and the Operating Subsidiaries may become and
remain liable with respect to Indebtedness in respect of Capital
Leases;
(iv) Company and the Operating Subsidiaries may become and
remain liable with respect to secured purchase money Indebtedness and
other unsecured Indebtedness (in addition to other Indebtedness
specifically permitted under this subsection 7.1) in an aggregate
amount not to exceed $1,000,000 at any time (provided that with
respect to any purchase money Indebtedness, such Indebtedness shall be
secured only by the assets purchased with the proceeds thereof and,
except as otherwise set forth in SCHEDULE 7.1 annexed hereto, at least
80% of the purchase price of such assets was provided by the proceeds
of such purchase money Indebtedness);
(v) The Subsidiaries of Company may become and remain liable
with respect to Indebtedness to Company and Company may become and
remain liable with respect to Indebtedness to a Subsidiary of Company;
PROVIDED that all such intercompany Indebtedness shall be subordinated
in right of payment to the cash payment in full of the Obligations and
any payment by any Subsidiary of Company under the Subsidiary Guaranty
shall result in a PRO TANTO reduction of the amount of any
intercompany Indebtedness owed by such Subsidiary to Company;
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(vi) Company, Regent of San Diego and San Diego License Sub
may become and remain liable with respect to the Jacor Note to the
extent they are parties thereto as of the Closing Date;
(vii) Company, Regent of Charleston and Charleston License
Sub may become and remain liable with respect to the Charleston Notes
to the extent they are parties thereto as of the Closing Date; and
(viii) Company, Regent of Lexington and Lexington License Sub
may become and remain liable with respect to the HMH Note to the
extent they are parties thereto as of the Closing Date.
7.2 LIENS AND RELATED MATTERS.
A. PROHIBITION ON LIENS. The Credit Parties shall not, and shall not
permit any of their respective Subsidiaries to, directly or indirectly, create,
incur, assume or permit to exist any Lien on or with respect to any property or
asset of any kind (including any document or instrument in respect of goods or
accounts receivable) of any Credit Party or any of its Subsidiaries, whether
now owned or hereafter acquired, or any income or profits therefrom, or file or
permit the filing of, or permit to remain in effect, any financing statement or
other similar notice of any Lien with respect to any such property, asset,
income or profits under the Uniform Commercial Code of any State or under any
similar recording or notice statute, except for the following:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Security Documents;
(iii) purchase money Liens securing purchase money
Indebtedness permitted pursuant to subsection 7.1(iv); PROVIDED that
(a) the purchase of the asset subject to such Lien is permitted under
the terms of subsection 7.7 and (b) such Liens encumber only the asset
so purchased;
(iv) Liens securing Capital Leases permitted under
subsections 7.8;
(v) Liens upon only the assets and capital stock of Regent of
San Diego and San Diego License Sub acquired pursuant to the Jacor
Note Documents;
(vi) Liens upon only the assets and/or capital stock of
Company, Regent of Charleston and Charleston License Sub acquired
pursuant to the Charleston Note Documents; and
(vii) Liens upon only the assets and capital stock of Regent
of Lexington and Lexington License Sub acquired pursuant to the HMH
Note Documents.
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B. EQUITABLE LIEN IN FAVOR OF LENDERS. If any Credit Party or any of
its Subsidiaries shall create or assume any Lien upon any of its properties or
assets, whether now owned or hereafter acquired, other than Permitted Liens, it
shall make or cause to be made effective provision whereby the Obligations will
be secured by such Lien equally and ratably with any and all other Indebtedness
secured thereby as long as any such Indebtedness shall be so secured; PROVIDED
that, notwithstanding the foregoing, this covenant shall not be construed as a
consent by Requisite Lenders to the creation or assumption of any Lien other
than a Permitted Lien.
C. NO FURTHER NEGATIVE PLEDGES. Except with respect to specific
property encumbered to secure payment of particular Indebtedness or to be sold
pursuant to an executed agreement with respect to an Asset Sale, neither any
Credit Party nor any of its Subsidiaries shall enter into any agreement
prohibiting the creation or assumption of any Lien upon any of its properties
or assets, whether now owned or hereafter acquired.
D. NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO CREDIT PARTIES OR
OTHER SUBSIDIARIES. Except as provided herein, the Credit Parties will not, and
will not permit any of their respective Subsidiaries to, create or otherwise
cause or suffer to exist or become effective any consensual encumbrance or
restriction of any kind on the ability of any such Subsidiary to (i) pay
dividends or make any other distributions on any of such Subsidiary's capital
stock owned by such Credit Party or any other Subsidiary of such Credit Party,
(ii) repay or prepay any Indebtedness owed by such Subsidiary to such Credit
Party or any other Subsidiary of such Credit Party, (iii) make loans or
advances to such Credit Party or any other Subsidiary of such Credit Party, or
(iv) transfer any of its property or assets to such Credit Party or any other
Subsidiary of such Credit Party.
7.3 INVESTMENTS; JOINT VENTURES.
The Credit Parties shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly, make or own any Investment
in any Person, including any Joint Venture, except:
(i) The Credit Parties and their respective Subsidiaries may
make and own Investments in Cash Equivalents;
(ii) The Credit Parties and their respective Subsidiaries may
continue to own the Investments owned by them as of the Closing Date
in any of their respective Subsidiaries;
(iii) The Credit Parties and their respective Subsidiaries
may make inter-company loans to the extent permitted under subsection
7.1(v);
(iv) The Credit Parties and their respective Subsidiaries may
make Consolidated Capital Expenditures permitted by subsection 7.8;
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(v) The Credit Parties and their respective Subsidiaries may
make Acquisitions; and
(vi) The Credit Parties and their respective Subsidiaries may
make and own the Investments set forth in SCHEDULE 7.3.
7.4 CONTINGENT OBLIGATIONS.
The Credit Parties shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly, create or become or remain
liable with respect to any Contingent Obligation, except:
(i) The Credit Parties and their respective Subsidiaries may
become and remain liable with respect to Contingent Obligations
incurred pursuant to the Loan Documents or the Related Documents;
(ii) Company may become and remain liable with respect to
Contingent Obligations under Interest Rate Agreements required under
subsection 6.9;
(iii) Contingent Obligations with respect to transactions
permitted pursuant to subsection 7.7 (including, without limitation,
the escrow deposits made in connection with the Acquisition);
(iv) Other Contingent Obligations of the Credit Parties
existing as of the Closing Date as set forth in SCHEDULE 7.4; and
(v) Other Contingent Obligations of the Credit Parties in an
aggregate amount not to exceed $100,000 outstanding at any time.
7.5 RESTRICTED JUNIOR PAYMENTS.
The Credit Parties shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly, declare, order, pay, make
or set apart any sum for any Restricted Junior Payment; PROVIDED that (i) as
long as no Event of Default or Potential Event of Default has occurred and is
continuing or would result therefrom and (ii) the Consolidated Total Debt Ratio
is less than 4.50:1.00 (on both an historical and pro forma basis using
assumptions reasonably acceptable to Agent) at the time of such payment,
Company may pay annual Cash dividends on Company Preferred Stock in an annual
aggregate amount not to exceed 50% of the Consolidated Excess Cash Flow for the
twelve month period ending December 31 of the previous year; PROVIDED FURTHER
that as long as no Event of Default or Potential Event of Default has occurred
and is continuing or would result therefrom, Company may redeem up to
$2,500,000 plus accrued unpaid dividends of the Company's outstanding Series C
Convertible Preferred Stock, with the proceeds ("REFINANCING PROCEEDS") of the
issuance of additional Company Common Stock or additional Company Preferred
Stock.
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7.6 FINANCIAL COVENANTS.
A. MINIMUM INTEREST COVERAGE RATIO. Company shall not permit the ratio
of (i) Consolidated Operating Cash Flow to (ii) Consolidated Interest Expense
for any four consecutive Fiscal Quarter period ending as of the last day of any
Fiscal Quarter of Company (X) during the period from and including the Closing
Date to and including September 30, 1998 to be less than 1.75:1.00, and (Y)
thereafter to be less than 2.00:1.00; PROVIDED that for purposes of calculating
compliance with this covenant, during the period from the Closing Date to the
end of the first anniversary following the Closing Date, the amount of
Consolidated Interest Expense included in such calculation shall be annualized
on the basis of the number of post-Closing Date calendar days completed at such
time.
B. MINIMUM FIXED CHARGE COVERAGE RATIO. Company shall not permit the
ratio of (i) Consolidated Operating Cash Flow to (ii) Consolidated Fixed
Charges for any four consecutive Fiscal Quarter period ending as of the last
day of any Fiscal Quarter of Company to be less than 1.10:1.00; PROVIDED that
for purposes of calculating compliance with this covenant, during the period
from the Closing Date to the end of the first anniversary following the Closing
Date, the amount of Consolidated Fixed Charges included in such calculation
shall be annualized on the basis of the number of post-Closing Date calendar
days completed at such time.
C. MAXIMUM CONSOLIDATED TOTAL DEBT RATIO. Company shall not permit the
ratio of (i) Consolidated Total Debt to (ii) Adjusted Consolidated Operating
Cash Flow for any four- Fiscal Quarter period ending as of the last day of any
Fiscal Quarter of Company occurring during any of the fiscal years set forth
below to exceed the correlative ratio indicated:
====================================================================
MAXIMUM
FISCAL YEAR LEVERAGE RATIO
--------------------------------------------------------------------
Closing Date - March 31, 1998 6.00:1.00
--------------------------------------------------------------------
April 1, 1998 - June 30, 1998 5.50:1.00
--------------------------------------------------------------------
July 1, 1998 - September 30, 1998 5.25:1.00
--------------------------------------------------------------------
October 1, 1998 - March 31, 1999 5.00:1.00
--------------------------------------------------------------------
January 1, 1999 - September 30, 1999 4.75:1.00
--------------------------------------------------------------------
October 1, 1999 - March 31, 2000 4.50:1.00
--------------------------------------------------------------------
April 1, 2000 - September 30, 2000 4.00:1.00
--------------------------------------------------------------------
October 1, 2000 and thereafter 3.50:1.00
====================================================================
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7.7 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS.
The Credit Parties shall not, and shall not permit any of their
respective Subsidiaries to, alter the corporate, capital or legal structure of
the Credit Parties or any of their respective Subsidiaries, or enter into any
transaction of merger or consolidation, or liquidate, wind-up or dissolve
itself (or suffer any liquidation or dissolution), or convey, sell, lease,
sub-lease, transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business, property or fixed assets,
whether now owned or hereafter acquired (other than sales including the sale,
transfer, replacement or other disposition of equipment and inventory, in each
case, in the ordinary course of business), or acquire by purchase or otherwise
all or substantially all the business, property or fixed assets of, or stock or
other evidence of beneficial ownership of, any Person or any division or line
of business of any Person or enter into any LMA except:
(i) Capital Expenditures permitted pursuant to subsection
7.8;
(ii) So long as no Event of Default or Potential Event of
Default shall have occurred and be continuing, or would result
therefrom, Company and its Subsidiaries may consummate the Charleston
Acquisition, the Faircom Acquisition and the Park Lane Acquisition and
other acquisitions of radio broadcasting stations (each, a "PERMITTED
ACQUISITION") may enter into or continue LMA's for radio broadcasting
stations; PROVIDED that, in the case of a Permitted Acquisition, each
of the conditions set forth in subsection 4.3 have been satisfied;
PROVIDED FURTHER that, in the case of an LMA each of the following
conditions shall be satisfied:
(a) there shall be no obligation on the part of
Company or any of its Subsidiaries to acquire any Station or
assets other than in accordance with this Agreement and,
without limiting the foregoing, the terms and conditions of
such LMA shall be in form and substance satisfactory to
Requisite Lenders;
(b) such LMA shall only be entered into in by
Company or its Subsidiaries as a lessee with respect to radio
broadcasting stations Company or its Subsidiaries would
otherwise be permitted to acquire in accordance with this
subsection 7.7(ii);
(c) Company and its Subsidiaries' rights, title and
interest in and to such LMA shall be subject to a First
Priority Lien in favor of Agent on behalf of Lenders; and
(d) Company shall have delivered to Agent a
Compliance Certificate, substantially in the form of EXHIBIT
VI annexed hereto, dated as of the date Company or its
Subsidiaries enter into such LMA and calculated to give
effect to the funding of Revolving Loans under this Agreement
after giving effect to such LMA, demonstrating compliance
with the covenants set forth in this Agreement after giving
effect to such LMA.
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(iii) Subject to the prepayment requirements of subsection
2.4B(iii) and as long as no Event of Default or Potential Event of
Default shall have occurred and be continuing or would result
therefrom, Company and its Subsidiaries may sell the San Diego
Station, the Lexington Station and/or the Charleston Stations for a
cash purchase price equal to at least the fair market value of such
Stations; and
(iv) Subject to subsection 7.11 and the prepayment
requirements of subsection 2.4B(iii), Company may issue additional
common stock and Company Preferred Stock so long as such additional
common stock and Company Preferred Stock have the same, or
substantially the same, attributes and provisions as such capital
stock as of the Closing Date; PROVIDED that Company may issue
additional common stock and Company Preferred Stock with different
attributes and provisions upon the prior written consent of Requisite
Lenders.
7.8 CONSOLIDATED CAPITAL EXPENDITURES.
The Credit Parties shall not, and shall not permit their respective
Subsidiaries to, make or incur Consolidated Capital Expenditures, in any Fiscal
Year, in an aggregate amount in excess of $1,500,000.
7.9 SALES AND LEASE-BACKS.
The Credit Parties shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly, become or remain liable as
lessee or as a guarantor or other surety with respect to any lease, whether an
Operating Lease or a Capital Lease, of any property (whether real, personal or
mixed), whether now owned or hereafter acquired, (i) which Credit Parties or
any of their respective Subsidiaries has sold or transferred or is to sell or
transfer to any other Person (other than the Credit Parties or any of their
respective Subsidiaries) or (ii) which Credit Parties or any of the respective
Subsidiaries intends to use for substantially the same purpose as any other
property which has been or is to be sold or transferred by the Credit Parties
or any of their respective Subsidiaries to any Person (other than the Credit
Parties or any of their respective Subsidiaries) in connection with such lease.
7.10 SALE OR DISCOUNT OF RECEIVABLES.
The Credit Parties shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly, sell with recourse, or
discount or otherwise sell for less than the face value thereof, any of its
notes or accounts receivable.
7.11 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.
The Credit Parties shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction (including, without limitation, the purchase, sale, lease
or exchange of any property or the rendering of any service) with any holder of
5% or more of any class of equity Securities of any Credit Party or with any
Affiliates
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of any Credit Party or of any such holder, on terms that are less favorable to
such Credit Party or such Subsidiary, as the case may be, than those that might
be obtained at the time from Persons who are not such a holder or Affiliate;
PROVIDED that the foregoing restrictions shall not apply to (i) any
transactions between the Company and any of its wholly-owned Subsidiaries or
between any such Subsidiary and any of its wholly-owned Subsidiaries or (ii)
reasonable and customary fees paid to members of the Boards of Directors of the
Credit Parties and their respective Subsidiaries.
7.12 DISPOSAL OF SUBSIDIARY STOCK.
The Credit Parties shall not, except as specifically permitted under
subsection 7.7 or subsection 7.2:
(i) directly or indirectly sell, assign, pledge or otherwise
encumber or dispose of any shares of capital stock or other equity
Securities of any of their respective Subsidiaries, except to qualify
directors if required by applicable law; or
(ii) permit any of their respective Subsidiaries directly or
indirectly to sell, assign, pledge or otherwise encumber or dispose of
any shares of capital stock or other equity Securities of the Credit
Parties' respective Subsidiaries (including such Subsidiary), except
with respect to the Sellers Notes or to Agent pursuant to the terms of
the Security Documents, the Credit Parties, another Subsidiary of any
Credit Party, or to qualify directors if required by applicable law.
7.13 CONDUCT OF BUSINESS
From and after the Closing Date, no Credit Party will engage in any
business other than (i) the business engaged in by such Credit Party on the
Closing Date, and similar or related businesses, (ii) subject to subsection
7.7, each Credit Party may, from time to time, enter into and perform its
obligations under LMA's, and (iii) such other lines of business as may be
consented to by Agent and Requisite Lenders; PROVIDED that, notwithstanding
anything to the contrary in this Agreement, including, without limitation, any
references to "Subsidiaries", no Credit Party shall operate, or hold any
interest in, any radio broadcast station other than the ownership and operation
of the Stations by the Operating Subs and ownership of the FCC Licenses for the
Stations by the applicable License Sub (including Stations acquired pursuant to
Permitted Acquisitions) and the operation by Operating Subs of radio broadcast
stations in accordance with the preceding clause (ii); PROVIDED FURTHER that
each License Sub shall not engage in any business or incur any liabilities
other than the ownership of its FCC Licenses and the execution, delivery and
performance of the Loan Documents and Related Documents to which it is a party
and activities incidental to the foregoing.
7.14 AMENDMENTS OR WAIVERS OF RELATED DOCUMENTS AND CHARTER DOCUMENTS
A. NO AMENDMENT OR WAIVER OF RELATED DOCUMENTS. Without obtaining the
written consent of Requisite Lenders, no Credit Party will agree to any
amendment to, or waive
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any of its rights under, (i) any of the Sellers Note Documents or (ii) any of
the other Related Documents (other than non-material amendments or waivers of
such other Related Documents which individually, or together with all other
amendments, waivers or changes made, would not be adverse to any Credit Party,
Agent or any Lender).
B. CHARTER DOCUMENTS. No Credit Party will agree to any material
amendment to, or waive any of its material rights under, its certificates or
articles of incorporation, bylaws or other documents relating to its capital
stock (other than non-material amendments or waivers which individually, or
together with all other amendments, waivers or changes made, would not be
adverse to any Credit Party, Agent or any Lender) without, in each case,
obtaining the written consent of Requisite Lenders to such amendment or waiver.
7.15 FISCAL YEAR
No Credit Party shall change its fiscal year-end from December 31
without the consent of Requisite Lenders.
7.16 OVERHEAD.
Company may make payments of Overhead in an aggregate amount for each
such fiscal year not to exceed the correlative amount indicated below:
================================================================
AGGREGATE
FISCAL YEAR OVERHEAD
----------------------------------------------------------------
1997 $1,200,000
----------------------------------------------------------------
1998 $1,260,000
----------------------------------------------------------------
1999 $1,323,000
----------------------------------------------------------------
2000 $1,389,150
----------------------------------------------------------------
2001 $1,458,608
----------------------------------------------------------------
2002 $1,531,538
----------------------------------------------------------------
2003 $1,608,115
----------------------------------------------------------------
2004 $1,688,521
================================================================
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SECTION 8.
EVENTS OF DEFAULT
If any of the following conditions or events ("EVENTS OF DEFAULT")
shall occur:
8.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure by Company to pay any installment of principal of or interest
on any Loan when due, whether at stated maturity, by acceleration, by notice of
voluntary prepayment, by mandatory prepayment or otherwise; failure by Company
to pay when due any amount payable to Issuing Lender in reimbursement of any
drawing under a Letter of Credit; or failure by Company to pay or any fee or
any other amount due under this Agreement within two Business Days after the
date due; or
8.2 DEFAULT IN OTHER AGREEMENTS.
(i) Failure of any Credit Party to pay when due (including any
applicable grace period) (a) any principal of or interest on the Sellers Notes
or any other Indebtedness (other than Indebtedness referred to in subsection
8.1) in an individual principal amount of $100,000 or more or any items of
Indebtedness with an aggregate principal amount of $100,000 or more or (b) any
Contingent Obligation in an individual principal amount of $100,000 or more or
any Contingent Obligations with an aggregate principal amount of $100,000 or
more, in each case beyond the end of any grace period provided therefor; or
(ii) breach or default by Company or any of its Subsidiaries with respect to
any other material term of (a) the Sellers Notes or any evidence of any other
Indebtedness in an individual principal amount of $100,000 or more or any items
of Indebtedness with an aggregate principal amount of $100,000 or more or any
Contingent Obligation in an individual principal amount of $100,000 or more or
any Contingent Obligations with an aggregate principal amount of $100,000 or
more or (b) any of the Sellers Note Documents or any loan agreement, mortgage,
indenture or other agreement relating to such other Indebtedness or Contingent
Obligation(s), if the effect of such breach or default is to cause, or to
permit the holder or holders of that Indebtedness or Contingent Obligation(s)
(or a trustee on behalf of such holder or holders) to cause, the Sellers Notes
or such other Indebtedness or Contingent Obligation(s) to become or be declared
due and payable prior to its stated maturity or the stated maturity of any
underlying obligation, as the case may be (upon the giving or receiving of
notice, lapse of time, both, or otherwise); or
8.3 BREACH OF CERTAIN COVENANTS.
Failure of Company to perform or comply with any term or condition
contained in subsection 2.5, 6.2 or Section 7 of this Agreement; or
8.4 BREACH OF WARRANTY.
Any representation, warranty, certification or other statement made by
any Credit Party or any of its Subsidiaries in any Loan Document or in any
statement or certificate at any time
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given by such Credit Party or any of its respective Subsidiaries in writing
pursuant hereto or thereto or in connection herewith or therewith shall be
false in any material respect on the date as of which made; or
8.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS.
Any Credit Party shall default in the performance of or compliance
with any term contained in this Agreement or any of the other Loan Documents,
other than any such term referred to in any other subsection of this Section 8,
and such default shall not have been remedied or waived within 30 days after
the earlier of (i) an officer of Company shall have obtained knowledge of such
default or (ii) receipt by Company of notice from Agent or any Lender of such
default; or
8.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having jurisdiction in the premises shall enter a decree
or order for relief in respect of any Credit Party in an involuntary case under
the Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, which decree or order is not stayed; or
any other similar relief shall be granted under any applicable federal or state
law; or (ii) an involuntary case shall be commenced against any Credit Party
under the Bankruptcy Code or under any other applicable bankruptcy, insolvency
or similar law now or hereafter in effect; or a decree or order of a court
having jurisdiction in the premises for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other officer having similar
powers over such Credit Party, or over all or a substantial part of its
property, shall have been entered; or there shall have occurred the involuntary
appointment of an interim receiver, trustee or other custodian of such Credit
Party for all or a substantial part of its property; or a warrant of
attachment, execution or similar process shall have been issued against any
substantial part of the property of such Credit Party, and any such event
described in this clause (ii) shall continue for 60 days unless dismissed,
bonded or discharged; or
8.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Any Credit Party shall have an order for relief entered with
respect to it or commence a voluntary case under the Bankruptcy Code or under
any other applicable bankruptcy, insolvency or similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary case, under
any such law, or shall consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of its
property; or any Credit Party shall make any assignment for the benefit of
creditors; or (ii) any Credit Party shall be unable, or shall fail generally,
or shall admit in writing its inability, to pay its debts as such debts become
due; or the Board of Directors of any Credit Party (or any committee thereof)
shall adopt any resolution or otherwise authorize any action to approve any of
the actions referred to in clause (i) above or this clause (ii); or
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8.8 JUDGMENTS AND ATTACHMENTS.
Any money judgment, writ or warrant of attachment or similar process
involving (i) in any individual case an amount in excess of $100,000 or (ii) in
the aggregate at any time an amount in excess of $100,000 (in either case not
adequately covered by insurance as to which a solvent and unaffiliated
insurance company has acknowledged coverage) shall be entered or filed against
Company or any of its Subsidiaries or any of their respective assets and shall
remain undischarged, unvacated, unbonded or unstayed for a period of 60 days
(or in any event later than five days prior to the date of any proposed sale
thereunder); or
8.9 DISSOLUTION.
Any order, judgment or decree shall be entered against any Credit
Party decreeing the dissolution or split up of such Credit Party or such
Subsidiary and such order shall remain undischarged or unstayed for a period in
excess of 30 days; or
8.10 EMPLOYEE BENEFIT PLANS.
There shall occur one or more ERISA Events which individually or in
the aggregate results in or might reasonably be expected to result in liability
of Company or any of its ERISA Affiliates in excess of $100,000 during the term
of this Agreement; or there shall exist an amount of unfunded benefit
liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in
the aggregate for all Pension Plans (excluding for purposes of such computation
any Pension Plans with respect to which assets exceed benefit liabilities),
which exceeds $100,000; or
8.11 CHANGE IN CONTROL.
There shall occur any Change of Control; or
8.12 FAILURE OF SECURITY OR GUARANTY
The Subsidiary Guaranty or any Security Document shall, at any time,
cease to be in full force and effect (other than by reason of a release of
Collateral in accordance with the terms thereof or the satisfaction in full of
all Obligations) or shall be declared null and void, or the validity or
enforceability thereof shall be contested by any party thereto, or the Agent
shall not have or cease to have a valid and perfected First Priority security
interest in the Collateral (subject to Permitted Liens) to the extent
contemplated by the Security Documents; or
8.13 FCC LICENSES
Any FCC License (other than auxiliary service licenses) relating to a
Station shall be canceled, terminated, modified in any material adverse
respect, renewed on terms that materially and adversely affect the economic or
commercial value thereof, or finally denied renewal for any reason; or
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8.14 ACQUISITION FCC CONSENT
Any Credit Party shall fail to comply with any Acquisition FCC Consent
or Transfer FCC Consent, or any Acquisition FCC Consent or Transfer FCC Consent
shall be rescinded, shall no longer be in full force and effect, or the
effectiveness thereof shall have been stayed by judicial proceedings; or
8.15 MATERIAL ADVERSE EFFECT
Any event or changes shall occur that has caused or evidences either
in any case or in the aggregate, a Material Adverse Effect;
8.16 FAIRCOM AND PARK LANE ACQUISITIONS
The Faircom Acquisition and the Park Lane Acquisition shall not have
been consummated on or before March 31, 1998, or any of the Faircom Acquisition
Documents or the Park Lane Acquisition Documents shall have been terminated at
any time for any reason (other than the consummation of such acquisition); or
8.17 LETTERS OF CREDIT
Any Letter of Credit issued during the period from the Effective Date
to the Closing Date is not cash collateralized for any reason other than the
cancellation or termination of such Letter of Credit;
THEN (i) upon the occurrence of any Event of Default described in subsection
8.6 or 8.7, each of (a) the unpaid principal amount of and accrued interest on
the Loans and (b) an amount equal to the maximum amount that may at any time be
drawn under all Letters of Credit then outstanding (whether or not any
beneficiary under any such Letter of Credit shall have presented, or shall be
entitled at such time to present, the drafts or other documents or certificates
required to draw under such Letter of Credit) (such amount to be held by
Collateral Agent pursuant to the Collateral Account Agreement), and (c) all
other Obligations shall automatically become immediately due and payable,
without presentment, demand, protest or other requirements of any kind, all of
which are hereby expressly waived by Company, and the obligation of each Lender
to make any Loan, the obligation of Agent to issue any Letter of Credit and the
right of any Lender to issue any Letter of Credit hereunder shall thereupon
terminate, and (ii) upon the occurrence and during the continuation of any
other Event of Default, Agent shall, upon the written request or with the
written consent of Requisite Lenders, by written notice to Company, declare all
or any portion of the amounts described in clauses (a) through (c) above to be,
and the same shall forthwith become, immediately due and payable, and the
obligation of each Lender to make any Loan, the obligation of Agent to issue
any Letter of Credit and the right of any Lender to issue any Letter of Credit
hereunder shall thereupon terminate; PROVIDED that the foregoing shall not
affect in any way the obligations of Lenders under subsection 3.3C(i).
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In addition, upon the occurrence of any Event of Default, Company
shall promptly enter into, and comply with the provisions of, a collateral
account agreement with such terms and conditions satisfactory to Agent in its
sole discretion. Any amounts described in clause (b) above, when received by
Agent, shall be held by Agent pursuant to the terms of such collateral account
agreement and shall be applied as therein provided.
Notwithstanding anything contained in the second preceding paragraph,
if at any time within 60 days after an acceleration of the Loans pursuant to
such paragraph Company shall pay all arrears of interest and all payments on
account of principal which shall have become due otherwise than as a result of
such acceleration (with interest on principal and, to the extent permitted by
law, on overdue interest, at the rates specified in this Agreement) and all
Events of Default and Potential Events of Default (other than non-payment of
the principal of and accrued interest on the Loans, in each case which is due
and payable solely by virtue of acceleration) shall be remedied or waived
pursuant to subsection 10.6, then Requisite Lenders, by written notice to
Company, may at their option rescind and annul such acceleration and its
consequences; but such action shall not affect any subsequent Event of Default
or Potential Event of Default or impair any right consequent thereon. The
provisions of this paragraph are intended merely to bind Lenders to a decision
which may be made at the election of Requisite Lenders and are not intended to
benefit Company and do not grant Company the right to require Lenders to
rescind or annul any acceleration hereunder, even if the conditions set forth
herein are met.
SECTION 9.
AGENT; DOCUMENTATION AGENT
9.1 APPOINTMENT.
Bank of Montreal is hereby appointed Agent hereunder and General
Electric Capital Corporation is hereby appointed Documentation Agent hereunder
and under the other Loan Documents and each Lender hereby authorizes Agent to
act as its agent in accordance with the terms of this Agreement and the other
Loan Documents. Agent agrees to act upon the express conditions contained in
this Agreement and the other Loan Documents, as applicable. The provisions of
this Section 9 are solely for the benefit of Agent, Documentation Agent and
Lenders and neither any Credit Party nor any of its Subsidiaries shall have any
rights as a third party beneficiary of any of the provisions thereof. In
performing its functions and duties under this Agreement, Agent and
Documentation Agent shall act solely as an agent of Lenders, Agent and
Documentation Agent do not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for any Credit
Party or any of its Subsidiaries.
9.2 POWERS; GENERAL IMMUNITY.
A. DUTIES SPECIFIED. Each Lender irrevocably authorizes Agent to take
such action on such Lender's behalf and to exercise such powers hereunder and
under the other Loan Documents as are specifically delegated to Agent by the
terms hereof and thereof, together with such powers as are reasonably
incidental thereto. Agent shall have only those duties and
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responsibilities that are expressly specified in this Agreement and the other
Loan Documents and it may perform such duties by or through its agents or
employees. Agent shall not have, by reason of this Agreement or any of the
other Loan Documents, a fiduciary relationship in respect of any Lender; and
nothing in this Agreement or any of the other Loan Documents, expressed or
implied, is intended to or shall be so construed as to impose upon Agent any
obligations in respect of this Agreement or any of the other Loan Documents
except as expressly set forth herein or therein. Anything in this Agreement or
the other Loan Documents to the contrary notwithstanding, Documentation Agent
shall not have any duties or responsibilities hereunder or under any Loan
Documents other than its duties and responsibilities as a Lender hereunder and
thereunder.
B. NO RESPONSIBILITY FOR CERTAIN MATTERS. Agent and Documentation
Agent shall not be responsible to any Lender for the execution, effectiveness,
genuineness, validity, enforceability, collectibility or sufficiency of this
Agreement or any other Loan Document or for any representations, warranties,
recitals or statements made herein or therein or made in any written or oral
statements or in any financial or other statements, instruments, reports or
certificates or any other documents furnished or made by Agent or Documentation
Agent to Lenders or by or on behalf of any Credit Party to Agent or
Documentation Agent or any Lender in connection with the Loan Documents and the
transactions contemplated thereby or for the financial condition or business
affairs of any Credit Party or any other Person liable for the payment of any
Obligations, nor shall Agent or Documentation Agent be required to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained in any of the Loan Documents or
as to the use of the proceeds of the Loans or the use of the Letters of Credit
or as to the existence or possible existence of any Event of Default or
Potential Event of Default. Anything contained in this Agreement to the
contrary notwithstanding, Agent and Documentation Agent shall not have any
liability arising from confirmations of the amount of outstanding Loans or the
Letter of Credit Usage or the components amounts thereof.
C. EXCULPATORY PROVISIONS. None of Agent, Documentation Agent or any
of their respective officers, directors, employees or agents shall be liable to
Lenders for any action taken or omitted by Agent or Documentation Agent under
or in connection with any of the Loan Documents except to the extent caused by
their own gross negligence or willful misconduct. If Agent shall request
instructions from Lenders with respect to any act or action (including the
failure to take an action) in connection with this Agreement or any of the
other Loan Documents, Agent shall be entitled to refrain from such act or
taking such action unless and until Agent shall have received instructions from
Requisite Lenders. Without prejudice to the generality of the foregoing, (i)
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any communication, instrument or document believed by it to be genuine and
correct and to have been signed or sent by the proper person or persons, and
shall be entitled to rely and shall be protected in relying on opinions and
judgments of attorneys (who may be attorneys for the Credit Parties and their
respective Subsidiaries), accountants, experts and other professional advisors
selected by it; and (ii) no Lender shall have any right of action whatsoever
against Agent as a result of Agent acting or (where so instructed) refraining
from acting under this Agreement or any of the other Loan Documents in
accordance with the instructions of
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Requisite Lenders. Agent shall be entitled to refrain from exercising any
power, discretion or authority vested in it under this Agreement or any of the
other Loan Documents unless and until it has obtained the instructions of
Requisite Lenders.
D. AGENT AND DOCUMENTATION AGENT ENTITLED TO ACT AS LENDER. The agency
hereby created shall in no way impair or affect any of the rights and powers
of, or impose any duties or obligations upon, Agent or Documentation Agent in
their individual capacity as a Lender hereunder. With respect to its
participation in the Loans and the Letters of Credit, Agent and Documentation
Agent shall have the same rights and powers hereunder as any other Lender and
may exercise the same as though it were not performing the duties and functions
delegated to it hereunder, and the term "Lender" or "Lenders" or any similar
term shall, unless the context clearly otherwise indicates, include Agent and
Documentation Agent in their individual capacity. Agent, Documentation Agent
and their respective Affiliates may accept deposits from, lend money to and
generally engage in any kind of banking, trust, financial advisory or other
business with any Credit Party or any of its Affiliates as if it were not
performing the duties specified herein, and may accept fees and other
consideration from any Credit Party for services in connection with this
Agreement and otherwise without having to account for the same to Lenders.
9.3 REPRESENTATIONS AND WARRANTIES; NO RESPONSIBILITY FOR APPRAISAL OF
CREDITWORTHINESS.
Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs of the Credit
Parties and their respective Subsidiaries in connection with the making of the
Loans and the issuance of Letters of Credit hereunder and that it has made and
shall continue to make its own appraisal of the creditworthiness of the Credit
Parties and their respective Subsidiaries. Agent and Documentation Agent shall
not have any duty or responsibility, either initially or on a continuing basis,
to make any such investigation or any such appraisal on behalf of Lenders or to
provide any Lender with any credit or other information with respect thereto,
whether coming into its possession before the making of the Loans or at any
time or times thereafter, and Agent and Documentation Agent shall not have any
responsibility with respect to the accuracy of or the completeness of any
information provided to Lenders.
9.4 RIGHT TO INDEMNITY.
Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify Agent, to the extent that Agent shall not have been reimbursed by
Company or another Credit Party, for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including, without limitation, counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against Agent in performing its duties hereunder or
under the other Loan Documents or otherwise in its capacity as Agent in any way
relating to or arising out of this Agreement or the other Loan Documents;
PROVIDED that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or
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disbursements resulting from Agent's gross negligence or willful misconduct. If
any indemnity furnished to Agent for any purpose shall, in the opinion of
Agent, be insufficient or become impaired, Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until
such additional indemnity is furnished.
9.5 SUCCESSOR AGENT.
Agent may resign at any time by giving 30 days' prior written notice
thereof to Lenders and Company, and Agent may be removed at any time with or
without cause by an instrument or concurrent instruments in writing delivered
to Company and Agent and signed by Requisite Lenders. Upon any such notice of
resignation or any such removal, Requisite Lenders shall have the right, upon
five Business Days' notice to Company, to appoint a successor Agent. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, that
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring or removed Agent and the
retiring or removed Agent shall be discharged from its duties and obligations
under this Agreement. After any retiring or removed Agent's resignation or
removal hereunder as Agent, the provisions of this Section 9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement.
9.6 SECURITY DOCUMENTS, ETC.
A. SECURITY DOCUMENTS. Each Lender hereby further authorizes Agent to
enter into the Security Documents as secured party, and to accept the
Subsidiary Guaranty, in each case on behalf of and for the benefit of Lenders
and agrees to be bound by the terms of the Security Documents and the
Subsidiary Guaranty; PROVIDED that Agent shall not enter into or consent to any
amendment, modification, termination or waiver of any provision contained in
the Security Documents or the Subsidiary Guaranty without the prior consent of
Requisite Lenders; PROVIDED FURTHER, that anything in this Agreement or the
other Loan Documents to the contrary notwithstanding:
(i) Agent is authorized on behalf of all Lenders, without the
necessity of any notice to or further consent from the Lenders, from
time to time to take any action with respect to any Collateral or the
Security Documents which may be necessary to perfect and maintain
perfected the security interest in and Liens upon the Collateral
granted pursuant to the Security Documents.
(ii) The Lenders irrevocably authorize Agent, at its option
and in its discretion, to release any Lien granted to or held by Agent
upon any Collateral (a) upon termination of the Commitments and
payment in full of the Loans and all other Obligations payable under
this Agreement and under any other Loan Document; (b) constituting
property sold or to be sold or disposed of as part of or in connection
with any disposition permitted hereunder or under the Security
Documents; (c) constituting property in which any Credit Party owned
no interest at the time the Lien was granted or at any time
thereafter; (d) constituting property leased to any Credit Party under
a
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lease which has expired or been terminated in a transaction permitted
under this Agreement or is about to expire and which has not been, and
is not intended by such Credit Party to be, renewed or extended; (e)
consisting of an instrument evidencing Indebtedness if the
Indebtedness evidenced thereby has been paid in full; or (f) if
otherwise approved, authorized or ratified in writing by Requisite
Lenders, subject to subsection 10.6. Upon request by Agent at any
time, Lenders will confirm in writing Agent's authority to release
particular types or items of Collateral pursuant to this subsection
9.6.
B. LENDER ACTION. Anything contained in any of the Loan Documents to
the contrary notwithstanding, each Lender agrees that no Lender shall have any
right individually to realize upon any of the Collateral under the Security
Documents (including without limitation through the exercise of a right of
set-off against call deposits of such Lender in which any funds on deposit in
the Security Documents may from time to time be invested) or enforce any remedy
or make any demand pursuant to the Subsidiary Guaranty, it being understood and
agreed that all rights and remedies under the Security Documents and the
Subsidiary Guaranty may be exercised solely by Agent for the benefit of Lenders
in accordance with the terms thereof.
9.7 APPOINTMENT OF SEPARATE AGENT.
At any time or times deemed necessary or advisable by Agent or
Requisite Lenders, including for purposes of complying with Section 310(b) of
the Communications Act and for purposes of enforcing any right or remedy
hereunder, Agent or Requisite Lenders may appoint one or more Persons to act as
a separate agent or co-agent to the full extent permitted by law and in
accordance with such instructions and directions as Agent or Requisite Lenders,
as the case may be, may specify. All provisions of this Agreement which are for
the benefit of the Agent shall extend to and apply to each separate agent or
co-agent appointed pursuant to the foregoing provisions. The powers of any
separate agent or co-agent shall not exceed those of the Agent hereunder.
SECTION 10.
MISCELLANEOUS
10.1 ASSIGNMENTS AND PARTICIPATIONS IN LOANS AND LETTERS OF CREDIT.
A. GENERAL. Each Lender shall have the right at any time to (i) sell,
assign or transfer to any Eligible Assignee, or (ii) sell participations to any
Person in, all or any part of its Commitments or any Loan or Loans made by it
or its Letters of Credit or participations therein or any other interest herein
or in any other Obligations owed to it; PROVIDED that no such sale, assignment,
transfer or participation shall, without the consent of Company, require
Company to file a registration statement with the Securities and Exchange
Commission or apply to qualify such sale, assignment, transfer or participation
under the securities laws of any state; and PROVIDED, FURTHER that no such
sale, assignment, transfer or participation of any Letter of Credit or any
participation therein may be made separately from a sale, assignment, transfer
or
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participation of a corresponding interest in the Revolving Loan Commitment and
the Revolving Loans of the Lender effecting such sale, assignment, transfer or
participation. Except as otherwise provided in this subsection 10.1, no Lender
shall, as between Company and such Lender, be relieved of any of its
obligations hereunder as a result of any sale, assignment or transfer of, or
any granting of participations in, all or any part of its Commitments or the
Loans, the Letters of Credit or participations therein, or other Obligations
owed to such Lender.
B. ASSIGNMENTS.
(i) AMOUNTS AND TERMS OF ASSIGNMENTS. Each Commitment, Loan,
Letter of Credit or participation therein, or other Obligation may (a)
be assigned in any amount to another Lender, or to an Affiliate of the
assigning Lender or another Lender, with the giving of notice to
Company and Agent and with the consent of Company and Agent (which
consent of Company and Agent shall not be unreasonably withheld and
which consent, in any case, shall not be required at any time that an
Event of Default has occurred and is continuing or if such assignment
is necessary or advisable to comply with any applicable law or
governmental regulation binding upon such Lender) or (b) be assigned
in an aggregate amount of not less than $1,000,000 (or such lesser
amount as shall constitute the aggregate amount of the Commitments,
Loans, Letters of Credit and participation therein, and other
Obligations of the assigning Lender) to any other Eligible Assignee
with the giving of notice to Company and Agent and with the consent of
Company and Agent (which consent of Company and Agent shall not be
unreasonably withheld and which consent, in the case of Company, shall
not be required at any time that an Event of Default has occurred and
is continuing); PROVIDED that any such assignment in accordance with
either clause (a) or (b) above shall effect a pro rata assignment of
both the Revolving Loan Commitment and the Revolving Loan of the
assigning Lender (including any corresponding interest in any Letter
of Credit). To the extent of any such assignment in accordance with
either clause (a) or (b) above, the assigning Lender shall be relieved
of its obligations with respect to its Commitments, Loans, Letters of
Credit or participations therein, or other Obligations or the portion
thereof so assigned. The parties to each such assignment shall execute
and deliver to Agent, for its acceptance, an assignment agreement,
together with a processing fee of $2,500 (for which no Credit Party
shall have any responsibility or liability) and such forms,
certificates or other evidence, if any, with respect to United States
federal income tax withholding matters as the assignee under such
assignment agreement may be required to deliver to Agent pursuant to
subsection 2.7B(iii)(a). Upon such execution, delivery, and
acceptance, from and after the effective date specified in such
assignment agreement, (y) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such assignment agreement, shall have
the rights and obligations of a Lender hereunder and (z) the assigning
Lender thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such assignment
agreement, relinquish its rights and be released from its obligations
under this Agreement (and, in the case of an assignment agreement
covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a
party hereto; PROVIDED
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that, anything contained in any of the Loan Documents to the contrary
notwithstanding, if such Lender is Issuing Lender with respect to any
outstanding Letters of Credit such Lender shall continue to have all
rights and obligations of Issuing Lender with respect to such Letters
of Credit until the cancellation or expiration of such Letters of
Credit and the reimbursement of any amounts drawn thereunder). The
Commitments hereunder shall be modified to reflect the Commitment of
such assignee and any remaining Commitment of such assigning Lender
and, if any such assignment occurs after the issuance of the Notes
hereunder, the assigning Lender shall, upon the effectiveness of such
assignment or as promptly thereafter as practicable, surrender its
applicable Notes, if any, to Agent for cancellation, and thereupon new
Notes shall be issued to the assignee and to the assigning Lender,
substantially in the form of EXHIBIT IV annexed hereto, with
appropriate insertions, to reflect the new Commitments, as the case
may be, of the assignee and the assigning Lender.
(ii) ACCEPTANCE BY AGENT. Upon its receipt of an assignment
agreement executed by an assigning Lender and an assignee representing
that it is an Eligible Assignee, together with the processing fee
referred to in subsection 10.1B(i) and any forms, certificates or
other evidence with respect to United States federal income tax
withholding matters that such assignee may be required to deliver to
Agent pursuant to subsection 2.7B(iii)(a), Agent shall, if such
assignment agreement has been completed and is acceptable in form and
substance to Agent, and if Agent and Company have consented to the
assignment evidenced thereby (in each case to the extent such consent
is required pursuant to subsection 10.1B(i)), (a) accept such
assignment agreement by executing a counterpart thereof as provided
therein (which acceptance shall evidence any required consent of Agent
to such assignment) and (b) give prompt notice thereof to Company.
Agent shall maintain a copy of each assignment agreement delivered to
and accepted by it as provided in this subsection 10.1B(ii).
C. PARTICIPATIONS. The holder of any participation, other than an
Affiliate of the Lender granting such participation, shall not be entitled to
require such Lender to take or omit to take any action hereunder except action
directly affecting (i) the extension of the regularly scheduled maturity of any
portion of the principal amount of or interest on any Loan allocated to such
participation or (ii) a reduction of the principal amount of or the rate of
interest payable on any Loan allocated to such participation, and all amounts
payable by Company hereunder (including without limitation amounts payable to
such Lender pursuant to subsections 2.6D, 2.7 and 3.6) shall be determined as
if such Lender had not sold such participation. Company and each Lender hereby
acknowledge and agree that, solely for purposes of subsections 10.4 and 10.5,
(a) any participation will give rise to a direct obligation of Company to the
participant and (b) the participant shall be considered to be a "Lender".
D. ASSIGNMENTS TO FEDERAL RESERVE BANKS. In addition to the
assignments and participations permitted under the foregoing provisions of this
subsection 10.1, any Lender may assign and pledge all or any portion of its
Loans, the other Obligations owed to such Lender, and its Notes to any Federal
Reserve Bank as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any operating circular issued by
such
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Federal Reserve Bank; PROVIDED that (i) no Lender shall, as between Company and
such Lender, be relieved of any of its obligations hereunder as a result of any
such assignment and pledge and (ii) in no event shall such Federal Reserve Bank
be considered to be a "Lender" or be entitled to require the assigning Lender
to take or omit to take any action hereunder.
E. INFORMATION. Each Lender may furnish any information concerning the
Credit Parties and their respective Subsidiaries in the possession of that
Lender from time to time to assignees and participants (including prospective
assignees and participants), subject to subsection 10.19.
10.2 EXPENSES.
Whether or not the transactions contemplated hereby shall be
consummated, Company agrees to pay promptly (i) all the actual and reasonable
costs and expenses of preparation of the Loan Documents; (ii) all the
reasonable costs of furnishing all opinions by counsel for the Credit Parties
(including without limitation any opinions requested by Lenders as to any legal
matters arising hereunder) and all costs of the Credit Parties' performance of
and compliance with all agreements and conditions on their respective parts to
be performed or complied with under this Agreement and the other Loan Documents
including, without limitation, with respect to confirming compliance with
environmental and insurance requirements; (iii) the reasonable fees, expenses
and disbursements of counsel to Agent (including allocated costs of internal
counsel) in connection with the negotiation, preparation, execution and
administration of the Loan Documents and the Loans and any consents,
amendments, waivers or other modifications hereto or thereto and any other
documents or matters requested by any Credit Party; (iv) all other actual and
reasonable costs and expenses incurred by Agent in connection with the
syndication of the Commitments and the negotiation, preparation and execution
of the Loan Documents and the transactions contemplated hereby and thereby
(except that no Credit Party shall be required to pay financing fees or any
other fees or expenses of any syndication member unless agreed upon separately
by Company); and (v) after the occurrence of an Event of Default, all costs and
expenses, including reasonable attorneys' fees (including allocated costs of
internal counsel) and costs of settlement, incurred by Agent and Lenders in
enforcing any Obligations of or in collecting any payments due from any Credit
Party hereunder or under the other Loan Documents by reason of such Event of
Default or in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a "work-out" or
pursuant to any insolvency or bankruptcy proceedings.
10.3 INDEMNITY.
In addition to the payment of expenses pursuant to subsection 10.2,
whether or not the transactions contemplated hereby shall be consummated,
Company agrees to defend, indemnify, pay and hold harmless Agent and Lenders,
and the officers, directors, employees, agents and affiliates of Agent and
Lenders (collectively called the "INDEMNITEES") from and against any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, claims, costs, expenses and disbursements of any kind or nature
whatsoever (including without limitation the reasonable fees and disbursements
of counsel for such Indemnitees in connection with any
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investigative, administrative or judicial proceeding commenced or threatened by
any Person (including, without limitation, any Credit Party or Affiliate
thereof), whether or not any such Indemnitee shall be designated as a party or
a potential party thereto), whether direct, indirect or consequential and
whether based on any federal, state or foreign laws, statutes, rules or
regulations (including without limitation securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred
by, or asserted against any such Indemnitee, in any manner relating to or
arising out of this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby (including without limitation Lenders' agreement
to make the Loans hereunder or the use or intended use of the proceeds of any
of the Loans or the issuance of Letters of Credit hereunder or the use or
intended use of any of the Letters of Credit) or the statements contained in
the commitment letter delivered by any Lender to Company with respect thereto
(collectively called the "INDEMNIFIED LIABILITIES"); PROVIDED that Company
shall not have any obligation to any Indemnitee hereunder with respect to any
Indemnified Liabilities to the extent such Indemnified Liabilities arise solely
from the gross negligence or willful misconduct of that Indemnitee as
determined by a final judgment of a court of competent jurisdiction. To the
extent that the undertaking to defend, indemnify, pay and hold harmless set
forth in the preceding sentence may be unenforceable because it is violative of
any law or public policy, Company shall contribute as necessary up to the
maximum portion that it is permitted to pay and satisfy under applicable law to
the payment and satisfaction of all Indemnified Liabilities incurred by the
Indemnitees or any of them.
10.4 SET-OFF; SECURITY INTEREST IN DEPOSIT ACCOUNTS.
In addition to any rights now or hereafter granted under applicable
law and not by way of limitation of any such rights, upon the occurrence of any
Event of Default each Lender is hereby authorized by Company at any time or
from time to time, without notice to Company or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and to
apply any and all deposits (general or special, including, but not limited to,
Indebtedness evidenced by certificates of deposit, whether matured or
unmatured, but not including trust accounts) and any other Indebtedness at any
time held or owing by that Lender to or for the credit or the account of
Company against and on account of the obligations and liabilities of Company to
that Lender under this Agreement, the Letters of Credit and participations
therein and the other Loan Documents, including, but not limited to, all claims
of any nature or description arising out of or connected with this Agreement,
the Letters of Credit and participations therein or any other Loan Document,
irrespective of whether or not (i) that Lender shall have made any demand
hereunder or (ii) the principal of or the interest on the Loans or any amounts
in respect of the Letters of Credit or any other amounts due hereunder shall
have become due and payable pursuant to Section 8 and although said obligations
and liabilities, or any of them, may be contingent or unmatured. Company hereby
further grants to Agent and each Lender a security interest in all deposits and
accounts maintained with Agent or such Lender as security for the Obligations.
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10.5 RATABLE SHARING.
Lenders hereby agree among themselves that if any of them shall,
whether by voluntary payment, by realization upon security, through the
exercise of any right of set-off or banker's lien, by counterclaim or cross
action or by the enforcement of any right under the Loan Documents or
otherwise, or as adequate protection of a deposit treated as cash collateral
under the Bankruptcy Code, receive payment or reduction of a proportion of the
aggregate amount of principal, interest, amounts payable in respect of Letters
of Credit, fees and other amounts then due and owing to that Lender hereunder
or under the other Loan Documents (collectively, the "AGGREGATE AMOUNTS DUE" to
such Lender) which is greater than the proportion received by any other Lender
in respect of the Aggregate Amounts Due to such other Lender, then the Lender
receiving such proportionately greater payment shall (i) notify Agent and each
other Lender of the receipt of such payment and (ii) apply a portion of such
payment to purchase participations (which it shall be deemed to have purchased
from each seller of a participation simultaneously upon the receipt by such
seller of its portion of such payment) in the Aggregate Amounts Due to the
other Lenders so that all such recoveries of Aggregate Amounts Due shall be
shared by all Lenders in proportion to the Aggregate Amounts Due to them;
PROVIDED that if all or part of such proportionately greater payment received
by such purchasing Lender is thereafter recovered from such Lender upon the
bankruptcy or reorganization of Company or otherwise, those purchases shall be
rescinded and the purchase prices paid for such participations shall be
returned to such purchasing Lender ratably to the extent of such recovery, but
without interest. Company expressly consents to the foregoing arrangement and
agrees that any holder of a participation so purchased may exercise any and all
rights of banker's lien, set-off or counterclaim with respect to any and all
monies owing by Company to that holder with respect thereto as fully as if that
holder were owed the amount of the participation held by that holder.
10.6 AMENDMENTS AND WAIVERS.
No amendment, modification, termination or waiver of any provision of
this Agreement or of the Notes, and no consent to any departure by Company
therefrom, shall in any event be effective without the written concurrence of
Requisite Lenders; PROVIDED that any such amendment, modification, termination,
waiver or consent which: (i) postpones the scheduled final maturity date of any
of the Loans; changes in any manner the method for calculating "Pro Rata Share"
or "Requisite Lenders"; changes in any manner any provision of this Agreement
which, by its terms, expressly requires the approval or concurrence of all
Lenders; releases any Lien granted in favor of Agent with respect to any
material portion of the Collateral; or changes in any manner the provisions
contained in subsection 8.1 or this subsection 10.6 shall be effective, in each
case, only if evidenced by a writing signed by or on behalf of all Lenders, and
(ii) increases the amount of any of the Commitments or reduces the principal
amount of any of the Loans; reduces the amount of, or postpones the date of,
any scheduled or mandatory installment of principal of, or commitment reduction
with respect to, any of the Loans; postpones the date on which any interest or
any fees are payable with respect to any Loans; decreases the interest rate
borne by any of the Loans (other than any waiver of any increase in the
interest rate applicable to any of the Loans pursuant to subsection 2.2E) or
the amount of any fees payable hereunder with respect to any Loans; increases
the maximum duration of
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Interest Periods permitted hereunder with respect to any Loans; reduces the
amount or postpones the due date of any amount payable in respect of, or
extends the required expiration date of, any Letter of Credit; or changes in
any manner the obligations of Lenders relating to the purchase of
participations in Letters of Credit, shall be effective, in each case, only if
evidenced by a writing signed by or on behalf of all Lenders holding the Loans
or Letters of Credit (or having a Commitment with respect thereto) which are
the subject of such amendment, modification, termination, waiver or consent. In
addition, (i) any amendment, modification, termination or waiver of any of the
provisions contained in Section 4 shall be effective only if evidenced by a
writing signed by or on behalf of Agent and Requisite Lenders, (ii) no
amendment, modification, termination or waiver of any provision of any Note
shall be effective without the written concurrence of the Lender which is the
holder of that Note, and (iii) no amendment, modification, termination or
waiver of any provision of Section 9 or of any other provision of this
Agreement which, by its terms, expressly requires the approval or concurrence
of Agent shall be effective without the written concurrence of Agent. Agent
may, but shall have no obligation to, with the concurrence of any Lender,
execute amendments, modifications, waivers or consents on behalf of that
Lender. Any waiver or consent shall be effective only in the specific instance
and for the specific purpose for which it was given. No notice to or demand on
Company in any case shall entitle Company to any other or further notice or
demand in similar or other circumstances. Any amendment, modification,
termination, waiver or consent effected in accordance with this subsection 10.6
shall be binding upon each Lender at the time outstanding, each future Lender
and, if signed by Company, on Company.
10.7 INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or would otherwise be
within the limitations of, another covenant shall not avoid the occurrence of
an Event of Default or Potential Event of Default if such action is taken or
condition exists.
10.8 NOTICES.
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, telexed or sent by telefacsimile or United States
mail or courier service and shall be deemed to have been given when delivered
in person or by courier service, upon receipt of telefacsimile or telex if
received by 5 p.m. (local time) on a Business Day (or if not received by such
time on a Business Day, the telefacsimile or telex shall be deemed received on
the next Business Day), or three Business Days after depositing it in the
United States mail with postage prepaid and properly addressed; PROVIDED that
notices to Agent shall not be effective until received. For the purposes
hereof, the address of each party hereto shall be as set forth under such
party's name on the signature pages hereof or (i) as to Company and Agent, such
other address as shall be designated by such Person in a written notice
delivered to the other parties hereto and (ii) as to each other party, such
other address as shall be designated by such party in a written notice
delivered to Agent.
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10.9 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
A. All representations, warranties and agreements made herein shall
survive the execution and delivery of this Agreement and the making of the
Loans and the issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by law to the
contrary, the agreements of Company set forth in subsections 2.6D, 2.7, 3.5A,
3.6, 10.2, 10.3 and 10.4 and the agreements of Lenders set forth in subsections
9.2C, 9.4, 10.5 and 10.19 shall survive the payment of the Loans, the
cancellation or expiration of the Letters of Credit and the reimbursement of
any amounts drawn hereunder, and the termination of this Agreement.
10.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of Agent or any Lender in the exercise
of any power, right or privilege hereunder or under any other Loan Document
shall impair such power, right or privilege or be construed to be a waiver of
any default or acquiescence therein, nor shall any single or partial exercise
of any such power, right or privilege preclude other or further exercise
thereof or of any other power, right or privilege. All rights and remedies
existing under this Agreement and the other Loan Documents are cumulative to,
and not exclusive of, any rights or remedies otherwise available.
10.11 MARSHALLING; PAYMENTS SET ASIDE.
Neither Agent nor any Lender shall be under any obligation to marshal
any assets in favor of Company or any other party or against or in payment of
any or all of the Obligations. To the extent that a Credit Party makes a
payment or payments to Agent or Lenders (or to Agent for the benefit of
Lenders), or Agent or Lenders enforce any security interests or exercise their
rights of setoff, and such payment or payments or the proceeds of such
enforcement or setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver or any other party under any bankruptcy law, any
other state or federal law, common law or any equitable cause, then, to the
extent of such recovery, the obligation or part thereof originally intended to
be satisfied, and all Liens, rights and remedies therefor or related thereto,
shall be revived and continued in full force and effect as if such payment or
payments had not been made or such enforcement or setoff had not occurred.
10.12 SEVERABILITY.
In case any provision in or obligation under this Agreement or the
Notes shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.
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10.13 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS.
----------------------------------------------------------
The obligations of Lenders hereunder are several and no Lender shall
be responsible for the obligations or Commitments of any other Lender
hereunder. Nothing contained herein or in any other Loan Document, and no
action taken by Lenders pursuant hereto or thereto, shall be deemed to
constitute Lenders as a partnership, an association, a joint venture or any
other kind of entity. The amounts payable at any time hereunder to each Lender
shall be a separate and independent debt, and each Lender shall be entitled to
protect and enforce its rights arising out of this Agreement and it shall not
be necessary for any other Lender to be joined as an additional party in any
proceeding for such purpose.
10.14 HEADINGS.
Section and subsection headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
10.15 APPLICABLE LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
10.16 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of Lenders (it being understood that
Lenders' rights of assignment are subject to subsection 10.1). Neither
Company's rights or obligations hereunder nor any interest therein may be
assigned or delegated by Company without the prior written consent of all
Lenders.
10.17 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY CREDIT PARTY ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY OBLIGATION
MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE
STATE OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT COMPANY
ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND
BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT, SUCH OTHER
LOAN DOCUMENT OR SUCH OBLIGATION. Company hereby agrees that service of all
process in any such proceeding in any such court may be made by registered or
certified mail, return
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receipt requested, to Company at its address provided in subsection 10.8, such
service being hereby acknowledged by Company to be sufficient for personal
jurisdiction in any action against Company in any such court and to be
otherwise effective and binding service in every respect. Nothing herein shall
affect the right to serve process in any other manner permitted by law or shall
limit the right of any Lender to bring proceedings against Company in the
courts of any other jurisdiction.
10.18 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER
RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver is intended to
be all-encompassing of any and all disputes that may be filed in any court and
that relate to the subject matter of this transaction, including without
limitation contract claims, tort claims, breach of duty claims and all other
common law and statutory claims. Each party hereto acknowledges that this
waiver is a material inducement to enter into a business relationship, that
each has already relied on this waiver in entering into this Agreement, and
that each will continue to rely on this waiver in their related future
dealings. Each party hereto further warrants and represents that it has
reviewed this waiver with its legal counsel and that it knowingly and
voluntarily waives its jury trial rights following consultation with legal
counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS
MADE HEREUNDER. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
10.19 CONFIDENTIALITY.
Each Lender shall hold all non-public information identified by
Company as confidential obtained pursuant to the requirements of this Agreement
in accordance with such Lender's customary procedures for handling confidential
information of this nature and in accordance with safe and sound banking
practices, it being understood and agreed by Company that in any event a Lender
may make disclosures reasonably required by any bona fide assignee, transferee
or participant in connection with the contemplated assignment or transfer by
such Lender of any Loans or any participation therein or as required or
requested by any governmental agency or representative thereof or pursuant to
legal process; PROVIDED that, unless specifically prohibited by applicable law
or court order, each Lender shall notify Company of any request by any
governmental agency or representative thereof (other than any such request in
connection with any examination of the financial condition of such Lender by
such governmental agency) for disclosure of any such non-public information
prior to disclosure of such information; and
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PROVIDED, FURTHER that in no event shall any Lender be obligated or required to
return any materials furnished by the Credit Parties or any of their respective
Subsidiaries.
10.20 COUNTERPARTS; EFFECTIVENESS.
This Agreement and any amendments, waivers, consents or supplements
hereto or in connection herewith may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Agreement shall become effective upon (i) the execution of a
counterpart hereof by each of the parties hereto and receipt by Company and
Agent of written or telephonic notification of such execution and authorization
of delivery thereof and (ii) satisfaction of each of the conditions set forth
in subsection 4.1.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY:
REGENT COMMUNICATIONS, INC.
By: /s/Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman & CEO
Notice Address:
Xxxxx 000
00 Xxxx Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopy: (000) 000-0000
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LENDERS:
BANK OF MONTREAL, CHICAGO BRANCH,
individually and as Agent
By:
/s/X.Xxxxxx
------------------------------
Name: X. Xxxxxx
Title: M.D.
Notice Address:
16th Floor
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
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GENERAL ELECTRIC CAPITAL
CORPORATION, individually and as
Documentation Agent
By:/s/Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
Notice Address:
Suite 600
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
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BANK ONE, INDIANAPOLIS, NA
By: /s/Xxxx X. Xxxxxx
--------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Notice Address:
Bank One Center/Tower
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
X.X. Xxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxx
Telecopy: (000) 000-0000
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