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AMENDED AND RESTATED
CREDIT AGREEMENT
among
RADIO ONE, INC.,
as the Borrower
NATIONSBANK, N.A.,
as Administrative Agent
FIRST UNION NATIONAL BANK
as Co-Arranger and the Syndication Agent
CREDIT SUISSE FIRST BOSTON
as the Documentation Agent
AND
THE SEVERAL LENDERS FROM TIME
TO TIME PARTIES HERETO
DATED AS OF FEBRUARY 26, 1999
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NATIONSBANC XXXXXXXXXX SECURITIES LLC
Sole Bookrunning Manager and Co-Arranger
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TABLE OF CONTENTS
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Page
SECTION 1. CERTAIN DEFINITIONS AND TERMS................................2
1.1 Defined Terms................................................2
1.2 Other Definitional Provisions...............................37
1.3 Computation of Time Periods.................................37
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.............................38
2.1 Commitments.................................................38
2.2 Intentionally Deleted.......................................38
2.3 Procedure for Borrowing.....................................38
2.4 Repayment of Loans..........................................39
SECTION 3. LETTERS OF CREDIT...........................................40
3.1 L/C Commitment..............................................40
3.2 Procedure for Issuance of Letters of Credit.................40
3.3 Fees, Commissions and Other Charges.........................40
3.4 L/C Participations..........................................41
3.5 Reimbursement Obligation of the Borrower....................42
3.6 Obligations Absolute........................................43
3.7 Letter of Credit Payments...................................43
3.8 Application.................................................43
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS AND
LETTERS OF CREDIT..........................................44
4.1 Interest Rates and Payment Dates............................44
4.2 Optional and Mandatory Commitment Reductions
and Prepayments.............................................44
4.3 Commitment Fees, etc........................................48
4.4 Computation of Interest and Fees............................49
4.5 Conversion and Continuation Options.........................49
4.6 Minimum Amounts of Eurodollar Tranches......................50
4.7 Inability to Determine Interest Rate........................50
4.8 Pro Rata Treatment and Payments.............................51
4.9 Requirements of Law.........................................52
4.10 Taxes.......................................................53
4.11 INDEMNITY...................................................55
4.12 Change of Lending Office....................................56
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SECTION 5. REPRESENTATIONS AND WARRANTIES..............................56
5.1 Financial Condition.........................................56
5.2 No Change...................................................57
5.3 Existence; Compliance with Law..............................57
5.4 Power; Authorization; Enforceable Obligations...............57
5.5 No Legal Bar................................................58
5.6 No Material Litigation......................................58
5.7 No Default..................................................59
5.8 Ownership of Property; Intellectual Property................59
5.9 No Burdensome Restrictions..................................59
5.10 Taxes.......................................................59
5.11 Federal Regulations.........................................60
5.12 ERISA.......................................................60
5.13 Investment Company Act; Other Regulations...................61
5.14 Restricted Subsidiaries.....................................61
5.15 Insurance...................................................62
5.16 Authorization Matters.......................................63
5.17 Environmental Matters.......................................63
5.18 Accuracy of Information.....................................65
5.19 Security Documents..........................................65
5.20 Solvency....................................................66
5.21 Labor Matters...............................................66
5.22 Prior Names.................................................66
5.23 Chief Executive Office; Chief Place of Business.............66
5.24 Real Property; Leases.......................................67
5.25 Ownership of Stations.......................................67
5.26 Possession of Necessary Authorizations......................67
5.27 FCC, Copyright, Patent and Trademark Matters................68
5.28 License Subsidiaries........................................68
SECTION 6. CONDITIONS PRECEDENT........................................68
6.1 Conditions to Effectiveness of this Agreement...............68
6.2 Conditions to All Extensions of Credit......................74
SECTION 7. AFFIRMATIVE COVENANTS.......................................75
7.1 Financial Statements........................................75
7.2 Certificates; Other Information.............................76
7.3 Payment of Obligations......................................77
7.4 Conduct of Business and Maintenance of Existence, etc. .....77
7.5 Maintenance of Property; Insurance..........................77
7.6 Inspection of Property; Books and Records; Discussions......78
7.7 Notices.....................................................78
7.8 Environmental Laws..........................................80
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7.9 Collateral..................................................80
7.10 Use of Proceeds.............................................82
7.11 New Restricted Subsidiaries.................................82
7.12 Taxes.......................................................82
7.13 Further Assurances..........................................82
7.14 Appraisals of Collateral....................................83
SECTION 8. NEGATIVE COVENANTS..........................................83
8.1 Financial Condition Covenants...............................83
8.2 Limitation on Indebtedness and Preferred Stock..............85
8.3 Limitation on Liens.........................................86
8.4 Limitation on Fundamental Changes...........................87
8.5 Limitation on Sale of Assets................................87
8.6 Limitation on Restricted Payments;
Other Payment Limitations...................................88
8.7 Limitation on Acquisitions..................................88
8.8 Investments.................................................89
8.9 Limitation on Transactions with Affiliates..................90
8.10 Limitation on Restrictions on Restricted
Subsidiary Distributions....................................91
8.11 Limitation on Lines of Business.............................92
8.12 Limitation on Sale or Issuance of Equity Interests..........92
8.13 Limitation on Material Agreements...........................93
8.14 Certain Intercompany Matters................................93
8.15 Preferred Stock Documents and New Preferred Stock...........93
SECTION 9. EVENTS OF DEFAULT...........................................94
SECTION 10. AGENT.......................................................98
10.1 Appointment.................................................98
10.2 Delegation of Duties........................................99
10.3 EXCULPATORY PROVISIONS......................................99
10.4 Reliance by the Administrative Agent........................99
10.5 Notice of Default..........................................100
10.6 Non-Reliance on the Administrative Agent and
the Other Lenders..........................................100
10.7 INDEMNIFICATION............................................101
10.8 The Administrative Agent in Its Individual
Capacity...................................................101
10.9 Successor Administrative Agent.............................101
10.10 Other Agents...............................................103
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SECTION 11. MISCELLANEOUS..............................................103
11.1 Amendments and Waivers.....................................103
11.2 Notices....................................................104
11.3 No Waiver; Cumulative Remedies.............................105
11.4 Survival of Representations and Warranties.................105
11.5 Payment of Expenses and Taxes..............................105
11.6 Successors and Assigns; Participations
and Assignments............................................106
11.7 Adjustments; Set-off.......................................109
11.8 Counterparts; When Effective...............................110
11.9 Severability...............................................110
11.10 Integration................................................110
11.11 GOVERNING LAW..............................................110
11.12 Submission To Jurisdiction; Waivers........................110
11.13 Acknowledgments............................................111
11.14 WAIVERS OF JURY TRIAL......................................111
11.15 Maximum Interest Rate......................................112
11.16 Confidentiality............................................112
11.17 Agreement of Lenders.......................................113
11.18 References to Credit Agreement.............................113
11.19 FINAL AGREEMENT............................................113
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Exhibits
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Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Compliance Certificate
Exhibit C - Form of Guaranty
Exhibit D - Form of Operating Agreement
Exhibit E - Form of Perfection Certificate
Exhibit F-1 - Form of Pledge Agreement [Borrower]
Exhibit F-2 - Form of Pledge Agreement [Restricted Subsidiaries]
Exhibit F-3 - Form of Pledge Agreement [Warrantholders]
Exhibit F-4 - Form of Pledge Agreement [Management Stockholders]
Exhibit F-5 - Form of Pledge Agreement [ROA Stockholders]
Exhibit G-1 - Form of Intellectual Property Security Agreement
Exhibit G-2 - Form of Security Agreement [Borrower]
Exhibit G-3 - Form of Security Agreement [Restricted Subsidiaries]
Exhibit H - Form of Note
Exhibit I - Form of Notice of Borrowing
Exhibit J - Form of Notice of Conversion/Continuation
Exhibit K - Form of Closing Certificate
Exhibit L - Form of Legal Opinion of Xxxxxxxx & Xxxxx
Exhibit M - Form of Legal Opinion of FCC counsel
Exhibit N - Form of Fifth Amendment to Preferred Stockholders' Agreement
Exhibit O - Form of Alternative Note
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Schedules
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Schedule 1.1A - Commitments and Addresses of Lenders
Schedule 1.1B - EBITDA Expense Add Backs
Schedule 5.1(c) - Pro Forma Financial Information, Budgets and Projections
Schedule 5.4 - Required Consents and Approvals
Schedule 5.14(a) - List of Restricted Subsidiaries and Owners of Equity
Interests
Schedule 5.14(b) - List of Shareholder and Voting Agreements, Warrants,
Restrictions on Transfer of Equity Interests
Schedule 5.22(a) - Prior Trade Names
Schedule 5.22(b) - Current Trade Names
Schedule 5.23 - Chief Executive Office; Chief Place of Business
Schedule 5.24(a) - List of Real Property Owned and Leased
Schedule 5.24(b) - List of Mortgaged Properties
Schedule 5.25 - Stations Owned
Schedule 5.27 - Patents and Trademarks
Schedule 6.1(a)(a) - Atlanta Existing Indebtedness
Schedule 8.2 - Indebtedness
Schedule 8.7 - Terms of WKJS Acquisition and WSOJ Acquisition
Schedule 8.9 - Existing Affiliate Transactions
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AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT is entered into effective
as of February 26, 1999 among Radio One, Inc., a Delaware corporation (the
"Borrower"), the several lenders from time to time parties hereto (the
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"Lenders") , NationsBank, N.A., as a Lender and as the administrative agent for
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the Lenders (in such capacity, the "Administrative Agent"), First Union National
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Bank, as a Lender and as the syndication agent for the Lenders (in such
capacity, the "Syndication Agent") and Credit Suisse First Boston as the
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documentation agent for the Lenders (in such capacity, the "Documentation
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Agent").
PRELIMINARY STATEMENT
On June 30, 1998, the Borrower, Credit Suisse First Boston (as a
Lender and Agent), and NationsBank, N.A. (as a Lender and as Documentation Agent
(hereinafter defined)) entered into that certain Credit Agreement (as amended,
modified, restated, supplemented, renewed, extended, increased, rearranged,
and/or substituted from time to time), (the "Credit Agreement") providing for a
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$32,500,000 revolving credit facility.
The Credit Agreement was amended by that certain First Amendment to
Credit Agreement dated as of December 23, 1998 (the "First Amendment"),
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increasing the Aggregate Commitment of the Lenders under the Credit Agreement
from $32,500,000 to $57,500,000 and making certain other modifications to the
Credit Agreement, including, but not limited to, the addition of First Union
National Bank as a Lender thereto.
The Credit Agreement was subsequently amended by that certain Second
Amendment to Credit Agreement dated as of February 9, 1999 (the "Second
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Amendment"), increasing the aggregate amount of fiscal year 1998 Capital
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Expenditures permitted under the Credit Agreement (the Credit Agreement as so
amended by the First Amendment and the Second Amendment called herein the
"Amended Credit Agreement") and making certain other modifications to the Credit
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Agreement.
The Borrower wishes to acquire all of the outstanding stock of Radio
One of Atlanta, Inc.
Accordingly, the Borrower has requested a $42,500,000 increase (the
"Second Increased Commitment") in the amount of the Aggregate Commitment
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provided for in the Amended Credit Agreement.
In order to accommodate the Borrower's request for the Second
Increased Commitment to enable Borrower to consummate the Acquisitions, (i)
NationsBank, N.A. and First Union National Bank (both in their capacity as
lenders) have agreed to increase their respective Commitments under the Amended
Credit Agreement, and (ii) Administrative Agent (in its capacity as such) has
agreed to become the administrative agent for the lenders, as of the Effective
Date of this Agreement.
The parties hereto desire to amend and restate the Amended Credit
Agreement with this Amended and Restated Credit Agreement in order to increase
the commitments under and make certain other modifications to the Amended Credit
Agreement.
In consideration of the premises, the mutual agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS AND TERMS
1.1 Defined Terms. For purposes of this Agreement, the following
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terms shall have the following meanings:
"ABR" means the fluctuating rate of interest per annum as shall be in
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effect from time to time equal to the greater of (i) the rate of interest
announced publicly by the Administrative Agent from time to time as its U.S.
dollar prime commercial lending rate (which rate may or may not be the lowest
rate of interest charged by the Administrative Agent) and (ii) the sum of 0.5%
plus the Federal Funds Rate. The ABR shall be adjusted automatically as of the
opening of business on the effective date of each change in the prime commercial
lending rate or Federal Funds Rate to account for such change.
"ABR Loan" means any Loan that bears interest computed on the basis of
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the ABR.
"Acquisitions" has the meaning set forth in Section 8.7.
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"Affiliate" means, with respect to any specified Person, any other
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Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For purposes of this
definition, "control of" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with") any Person means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
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beneficial ownership of 10% or more of the voting securities of a Person shall
be deemed to be control.
"Affiliate Transaction" has the meaning set forth in Section 8.9.
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"Administrative Agent" means NationsBank, N.A., as administrative
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agent for the Lenders pursuant to this Agreement, and its successors and assigns
in such capacity as appointed pursuant to Section 10.9.
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"Aggregate Commitment" means the sum of all of the Commitments of all
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of the Lenders (in each case, as the same may be increased, reduced or otherwise
adjusted from time to time as provided herein).
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"Aggregate Outstandings of Credit" means, as to any Lender at any
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time, an amount equal to the sum of (a) the aggregate principal amount of all
Loans made by such Lender then outstanding and (b) such Lender's Specified
Percentage of the L/C Obligations then outstanding.
"Agreement" means this Amended and Restated Credit Agreement,
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including the Schedules and Exhibits, as the same may be amended, modified,
restated, supplemented, renewed, extended, increased, rearranged or substituted
from time to time.
"Agreement and Plan of Warrant Recapitalization" means that certain
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Agreement and Plan of Warrant Recapitalization dated as of February 25, 1999,
among the Borrower, the Investors and the Management Stockholders.
"Allied" has the meaning set forth in the definition of Allied
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Warrant.
"Allied Note" has the meaning set forth in the definition of Allied
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Warrant.
"Allied Warrant" means that certain Warrant issued by Borrower to
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Allied Capital Financial Corporation ("Allied") in connection with the
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acquisition of station WYCB-AM, Washington, D.C. by certain Unrestricted
Subsidiaries of the Borrower, to be exercised for the number of shares of 15%
Series A Senior Cumulative Redeemable Preferred Stock of the Borrower having a
liquidation value of up to Four Million Dollars ($4,000,000) but only to be
exercised upon a default under that certain promissory note in the original
principal amount of $3,750,000 (the "Allied Note") given by Broadcast Holdings,
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Inc. to Allied.
"Allur Acquisition" means the acquisition by the Borrower of all of
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the outstanding Equity Interests of Allur-Detroit, Inc., a Delaware corporation,
pursuant to the terms and conditions of that certain Stock Purchase Agreement by
and between the shareholder of Allur and the Borrower, dated as of October 26,
1998.
"Alternative Note" has the meaning set forth in Section 11.6(d).
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"Alternative Noteholder" has the meaning set forth in Section
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11.6(e).
"Amended and Restated Certificate of Incorporation" means that certain
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Amended and Restated Certificate of Incorporation of Radio One, Inc. filed with
the Secretary of State of Delaware on February 25, 1999, and as further amended
or restated from time to time in accordance with the terms hereof and thereof.
"Applicable Margin" means, at the time of any determination thereof,
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for purposes of all Loans, the margin of interest over the ABR or the Eurodollar
Rate, as the case may be, which is applicable at the time of any determination
of interest rates under this Agreement, which Applicable Margin shall be subject
to adjustment (upwards or downwards, as appropriate) based on the Leverage
Ratio, as follows:
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Leverage Ratio Applicable Margin Applicable Margin for
prior to a Qualifying for ABR Loans Eurodollar Rate Loans
Public Equity Offering
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Greater than 6.75 to 1.00 1.750% 2.750%
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Less than or equal to 6.75 to 1.00
but greater than 6.50 to 1.00 1.500% 2.500%
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Less than or equal to 6.50 to 1.00
but greater than 6.00 to 1.00 1.250% 2.250%
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Less than or equal to 6.00 to 1.00
but greater than 5.50 to 1.00 1.000% 2.000%
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Less than or equal to 5.50 to 1.00
but greater than 5.00 to 1.00 0.875% 1.875%
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Less than or equal to 5.00 to 1.00
but greater than 4.50 to 1.00 0.625% 1.625%
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Less than or equal to 4.50 to 1.00
but greater than 4.00 to 1.00 0.375% 1.375%
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Less than or equal to 4.00 to 1.00 0.250% 1.250%
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Leverage Ratio Applicable Margin Applicable Margin for
after a Qualifying for ABR Loans Eurodollar Rate Loans
Public Equity Offering
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Greater than 6.75 to 1.00 1.625% 2.625%
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Less than or equal to 6.75 to 1.00
but greater than 6.50 to 1.00 1.375% 2.375%
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Less than or equal to 6.50 to 1.00
but greater than 6.00 to 1.00 1.125% 2.125%
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Less than or equal to 6.00 to 1.00
but greater than 5.50 to 1.00 1.000% 2.000%
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Less than or equal to 5.50 to 1.00
but greater than 5.00 to 1.00 0.875% 1.875%
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Less than or equal to 5.00 to 1.00
but greater than 4.50 to 1.00 0.625% 1.625%
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Less than or equal to 4.50 to 1.00
but greater than 4.00 to 1.00 0.375% 1.375%
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Less than or equal to 4.00 to 1.00 0.250% 1.250%
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4
For the purposes of this definition, the Applicable Margin shall be determined
as at the end of each of the first three quarterly periods of each fiscal year
of the Borrower and as at the end of each fiscal year of the Borrower, based on
the relevant financial statements delivered pursuant to Section 7.1(a) or (b)
and the Compliance Certificate delivered pursuant to Section 7.2(b); changes in
the Applicable Margin shall become effective on the date which is the earlier of
(i) two Business Days after the date the Administrative Agent receives such
financial statements and the corresponding Compliance Certificate and (ii) the
45th day after the end of each of the first three quarterly periods of each
fiscal year or the 90th day after the end of each fiscal year, as the case may
be, and shall remain in effect until the next change to be effected pursuant to
this definition; provided, that (a) until the first such financial statements
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and Compliance Certificate are delivered after the Effective Date, the
Applicable Margin shall be determined by reference to the Leverage Ratio set
forth in the Compliance Certificate delivered to the Administrative Agent
pursuant to Section 6.2(g), and (b) if any financial statements or the
Compliance Certificate referred to above are not delivered within the time
periods specified above, then, for the period from and including the date on
which such financial statements and Compliance Certificate are required to be
delivered to but not including the date on which such financial statements and
Compliance Certificate are delivered, the Applicable Margin as at the end of the
fiscal period that would have been covered thereby shall be deemed to be the
Applicable Margin which would be applicable when the Leverage Ratio is greater
than 6.75 to 1.00. Notwithstanding anything to the contrary contained herein,
during the fiscal quarter in which the Borrower closes its initial Public Equity
Offering, the Borrower shall have the right to resubmit to the Administrative
Agent and each Lender a new Compliance Certificate which recalculates the
"Indebtedness" component of the Leverage Ratio as of such date and, to the
extent there is a change in the Leverage Ratio reflected therein, a new
Applicable Margin for the then occurring fiscal quarter shall become effective
two Business Days after the date the Administrative Agent receives such new
Compliance Certificate and such new Applicable Margin shall remain in effect
until the next change, to be effected pursuant to this definition.
"Application" means an application, in form and substance consistent
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with this Agreement and mutually satisfactory to the Borrower and the Issuing
Lender, requesting the Issuing Lender to open a Letter of Credit.
"Assignee" has the meaning set forth in Section 11.6(c).
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"Assignment and Acceptance" means an Assignment and Acceptance
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substantially in the form of Exhibit A.
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"Atlanta" means Radio One of Atlanta, Inc., a Delaware corporation.
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"Atlanta Acquisition" means the acquisition by the Borrower of all or
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substantially all of the outstanding shares of stock of Radio One of Atlanta,
Inc.
5
"Atlanta Acquisition Agreement" means that certain Merger Agreement
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by and among Atlanta, the shareholders of Atlanta, ROA Merger Subsidiary, Inc.,
and the Borrower, dated as of March 29, 1999, as in effect on the Effective
Date.
"Atlanta Existing Indebtedness" means all Indebtedness of Atlanta or
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Dogwood and all Indebtedness of any Person secured by a Lien on any Equity
Interests of Atlanta or Dogwood or any property of Atlanta or Dogwood (including
without limitation that listed in the Atlanta Acquisition Agreement) not
permitted by Section 8.2, including such indebtedness arising under the
instruments listed in Schedule 6.1(a)(a) and the documents executed in
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connection therewith.
"Atlanta Licenses" means ROA Licenses, Inc., a Delaware corporation.
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"Authorizations" means all filings, recordings and registrations with,
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and all validations or exemptions, approvals, orders, authorizations, consents,
Licenses, certificates and permits from, the FCC and other Governmental
Authorities.
"Available Commitment" means at any time, as to any Lender, an amount
--------------------
equal to (a) the amount of such Lender's Commitment at such time, minus (b) such
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Lender's Aggregate Outstandings of Credit at such time.
"Xxxx" means Xxxx Broadcasting Company, a Michigan corporation.
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"Xxxx Acquisition" means the acquisition by the Borrower of all of the
----------------
outstanding Equity Interests of Xxxx pursuant to the terms and conditions of
that certain Stock Purchase Agreement by and among all of the shareholders of
Xxxx more specifically identified therein and Radio One, Inc., dated as of
December 23, 1997 (the "Xxxx Acquisition Agreement").
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"Board" means the Board of Governors of the Federal Reserve System.
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"Borrower" has the meaning set forth in the introductory paragraph of
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this Agreement.
"Borrowing Date" means any Business Day (i) specified in a Notice of
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Borrowing pursuant to Section 2.3 as a date on which the Borrower requests the
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Lenders to make Loans hereunder or (ii) specified in an Application pursuant to
Section 3.2 as a date on which the Borrower requests the Issuing Lender to issue
-----------
Letters of Credit hereunder.
"Broadcast Assets" means assets used or useful in the ownership or
----------------
operation of a Station.
"Budget" has the meaning set forth in Section 7.2(e).
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"Business" has the meaning set forth in Section 5.17(c).
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6
"Business Day" means (a) for all purposes other than as provided in
------------
clause (b) below, any day other than a Saturday, Sunday or other day on which
commercial banks in Dallas, Texas or New York, New York are authorized or
required by law to close and (b) with respect to all notices and determinations
in connection with any borrowings in respect of Eurodollar Loans, any day that
is a Business Day described in clause (a) above and that is also a day for
trading between prime banks in the London interbank market.
"Capital Expenditure" means with respect to any Person any liability
-------------------
incurred or expenditure made (net of any casualty insurance proceeds or
condemnation awards used to replace fixed assets following a casualty event or
condemnation with respect thereto) by such Person that, in conformity with GAAP,
is required to be accounted for as a capital expenditure on the cash flow
statements of such Person; provided, however, that Capital Expenditures shall
--------
not include the consideration paid by the Borrower and/or Restricted
Subsidiaries in connection with the Atlanta Acquisition or the Dogwood
Acquisition, Permitted Acquisitions and any other Acquisitions consented to by
the Majority Lenders.
"Capital Lease Obligations" means with respect to any Person, at any
-------------------------
time any determination thereof is to be made, the amount of the liability in
respect of a capital lease that would at such time be required to be capitalized
on the consolidated balance sheet of such Person in accordance with GAAP.
"Cash Collateral Account" has the meaning set forth in Section 4.2(d).
----------------------- --------------
"Cash Equivalents" means (i) United States dollars, (ii) securities
----------------
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of less
than one year from the date of acquisition, (iii) certificates of deposit and
Eurodollar time deposits with maturities of less than one year from the date of
acquisition, bankers' acceptances with maturities of less than one year and
overnight bank deposits, in each case with any Lender party to the Credit
Agreement or with any domestic commercial bank having capital and surplus in
excess of $500,000,000 and a Xxxxx Bank Watch Rating of "B" or better, (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) entered into with
any financial institution meeting the qualifications specified in clause (iii)
immediately above, (v) commercial paper having the highest rating obtainable
from Xxxxx'x Investors Service, Inc. or Standard & Poor's Ratings Services and
in each case maturing within nine months after the date of acquisition and (vi)
interests in money market mutual funds which invest solely in assets in
securities of the type described in clauses (i) through (v) immediately above.
"Change of Control" means the occurrence of any of the following:
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(i) the sale, lease or transfer, in one or a series of related
transactions, of all or substantially all of the Borrower's assets to any
Person or group (as such term is used in Section 13(d)(3) of the Exchange
Act) (other than any or all of the Principal Shareholders);
7
(ii) the adoption of a plan relating to the liquidation or
dissolution of the Borrower;
(ii) prior to the initial Public Equity Offering of the Borrower
and the exercise of any of the Warrants, either (x) Xxxxxx and Xxxxxxx
(individually or collectively) cease to be the beneficial owner (within the
meaning of rule 13d-3 promulgated under the Exchange Act) of at least 51%
of the voting power of the voting stock of the Borrower or (y) any Person
or group (as such term is used in Section 13(d)(3) of the Exchange Act)
other than the Warrantholders acquires, directly or indirectly, 35% or more
of the voting power of the voting stock of the Borrower by way of merger,
consolidation or otherwise;
(iv) prior to the initial Public Equity Offering of the Borrower
but after the exercise of the Warrants, either (x) Xxxxxx and Xxxxxxx
(individually or collectively) cease to be the beneficial owner (within the
meaning of rule 13d-3 promulgated under the Exchange Act) of at least 40%
of the voting power of the voting stock of the Borrower or (y) any Person
or group (as such term is used in Section 13(d)(3) of the Exchange Act)
other than the Warrantholders acquires, directly or indirectly, 35% or more
of the voting power of the voting stock of the Borrower by way of merger,
consolidation or otherwise;
(v) following the initial Public Equity Offering of the Borrower,
either (1) any Person or group (as such term is used in Section 13(d)(3) of
the Exchange Act) (other than Xxxxxx or Xxxxxxx) acquires, directly or
indirectly, 35% or more of the voting power of the voting stock of the
Borrower by way of merger or consolidation or otherwise; (2) Xxxxxx or
Xxxxxxx cease to be the beneficial owners, individually or collectively, of
at least 35% of the voting power of the voting stock of the Borrower, (3)
the Principal Shareholders cease to be the beneficial owners, individually
or collectively, of at least 20% of the common stock of the Borrower on a
fully diluted basis or (4) Xxxxxx and Xxxxxxx (individually or
collectively) cease to have the right to elect (and do so elect) a majority
of the board of directors of the Borrower; or
(vi) the Continuing Directors cease for any reason to constitute
a majority of the directors of the Borrower then in office.
For purposes of this definition, any transfer of an Equity Interest of an entity
that was formed for the purpose of acquiring voting stock of the Borrower shall
be deemed to be a transfer of such portion of such voting stock as corresponds
to the portion of the equity of such entity that has been so transferred.
"Charter Documents" means with respect to any Person (a) the
-----------------
articles/certificate of incorporation (or the equivalent organizational
documents) of such Person and (b) the bylaws (or the equivalent governing
documents) of such Person.
"Closing Certificate" has the meaning set forth in Section 6.1(b).
------------------- --------------
8
"Code" means the Internal Revenue Code of 1986, as amended, and all
----
regulations promulgated and rulings issued thereunder.
"Collateral" means (a) all assets of the Borrower and the Restricted
----------
Subsidiaries (other than the Equity Interests of Unrestricted Subsidiaries) ;
(b) all common stock and voting securities or securities convertible or
exchangeable into common stock or voting securities and all warrants or options
or other securities to purchase such common stock and voting securities of the
Borrower, other than such common stock not exceeding 14.32 shares of class A
common stock of the Borrower, representing less than 15% of the shares of class
A common stock outstanding and representing less than 3.37% of the fully diluted
equity interests in the Company, which stock is or is to be issued to Allied
Capital Corporation or Allied Investment Corporation on or about March 29, 1999,
provided that a Responsible Officer of the Borrower delivers a certificate to
--------
and in favor of the Administrative Agent and the Lenders certifying that no
Default or Event of Default then exists and is continuing, concurrent with (i)
the closing of the initial Public Equity Offering of the Borrower, (ii) the
repurchase or redemption of the Senior Preferred Stock outstanding on the
Effective Date and (iii) the exercise of all of the Warrants (outstanding on the
Effective Date) for common stock of the Borrower pursuant to the terms and
provisions of the Warrant Certificates as in effect on the Effective Date, the
liens in favor of the Administrative Agent for the benefit of the Lenders on all
such securities of the Borrower shall be released; and (c) all Equity Interests
of each of the Restricted Subsidiaries, in each case whether now owned or
hereinafter acquired.
"Commitment" means, as to any Lender, its obligation, if any, to make
----------
Loans to, and/or issue or participate in Letters of Credit issued on behalf of,
the Borrower in an aggregate amount not to exceed at any one time outstanding
the amount set forth opposite such Lender's name in Schedule 1.1A under the
-------------
heading "Commitment" or, in the case of any Lender that is an Assignee, the
amount of the assigning Lender's Commitment assigned to such Assignee pursuant
to Section 11.6(c) and set forth in the applicable Assignment and Acceptance (in
---------------
each case, as the same may be increased, reduced or otherwise adjusted from time
to time as provided herein).
"Common Equity" means the Common Stock and Non-Voting Common Stock of
-------------
the Borrower, collectively.
"Common Stock" means the voting class A common stock, par value $.01
------------
per share, of the Borrower, and the voting class B common stock, par value $.01
per share.
"Commonly Controlled Entity" means an entity, whether or not
--------------------------
incorporated, which is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group which includes the Borrower and
which is treated as a single employer under Section 414(b) or (c) of the Code.
"Communications Act" means the Communications Act of 1934, as amended,
------------------
and the rules and regulations and published policies thereunder, as amended and
in effect from time to time.
9
"Compliance Certificate" means a certificate of a Responsible Officer
----------------------
of the Borrower, substantially in the form of Exhibit B.
---------
"Consolidated Interest Expense" means, without duplication, with
-----------------------------
respect to any period, the sum of (a) the interest expense and all capitalized
interest of the Borrower and the Restricted Subsidiaries for such period, on a
consolidated basis, including, without limitation, (i) amortization of debt
discount (but excluding original issue discount on the Senior Subordinated Notes
and the New Exchange Debentures), (ii) the net cost under interest rate
contracts (including amortization of debt discount), (iii) the interest portion
of any deferred payment obligation and (iv) accrued interest, plus (b) the
----
interest component of any Capital Lease Obligation paid or accrued or scheduled
to be paid or accrued by the Borrower or any of the Restricted Subsidiaries
during such period, plus (c) the aggregate amount of all fees, including but not
----
limited to agency fees, letter of credit fees and commitment fees incurred by
the Borrower or any of the Restricted Subsidiaries during such period in respect
of Indebtedness, determined on a consolidated basis in accordance with GAAP;
provided, however, that any dividends with respect to the Senior Preferred Stock
-------- -------
shall not be considered for purposes of this definition.
"Continuing Director" means any member of the Board of Directors of
-------------------
the Borrower who (i) is a member of that Board of Directors of the Borrower on
the Initial Effective Date or (ii) was nominated for election by either (a) one
or more of the Principal Shareholders or (b) the Board of Directors of the
Borrower a majority of whom were directors on the Initial Effective Date or
whose election or nomination for election was previously approved by one or more
of the Principal Shareholders or such directors.
"Contractual Obligation" of any Person means any provision of any
----------------------
security issued by such Person or subordination agreement, indenture, mortgage,
deed of trust, security agreement, lease agreement, guaranty, contract,
undertaking, instrument or other agreement to which such Person is a party or by
which it or any of its property, assets or revenues is bound or to which any of
its property, assets or revenues is subject, including, without limitation, with
respect to the Loan Parties, obligations in respect of Material Leases, LMA
Agreements, the Senior Subordinated Debt Documents, the Preferred Stock
Documents and the documents and instruments executed in connection with the
Atlanta Acquisition or the Dogwood Acquisition, and for any date after the New
Preferred Stock is issued, the New Exchange Debenture Indenture and related
documents pursuant to which the New Exchange Debentures may be issued.
"Corporate Overhead Expense" means all general and administrative
--------------------------
expenses incurred during any fiscal period which are not associated with, or
attributable to, the particular operations of one or more of the Stations and
which are properly classified as general and administrative expenses on the
Borrower's financial statements, including compensation paid to Senior
Management, insurance, rent, professional fees, travel and entertainment
expenses; notwithstanding any generally accepted accounting principles to the
contrary, Corporate Overhead Expense shall include all compensation and
distributions paid to or for the benefit of the
10
Management Stockholders (other than Xxxxx), directly or indirectly in their
respective capacity as employees of the Borrower.
"Customary Permitted Liens" means Liens on the property or assets of
-------------------------
any Person (other than Liens arising pursuant to any Environmental Law and Liens
in favor of the PBGC):
(a) with respect to the payment of Taxes, assessments or governmental
charges or levies which are not yet due or which are being contested in
good faith by appropriate proceedings and with respect to which adequate
reserves are being maintained in accordance with GAAP;
(b) of landlords arising by statute and Liens of suppliers, mechanics,
carriers, materialmen, warehousemen or workmen and other Liens imposed by
Law created in the ordinary course of business of such Person for amounts
not yet due or which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with GAAP;
(c) incurred, or pledges and deposits made, in the ordinary course of
business of such Person in connection with worker's compensation,
unemployment insurance, pensions or other types of social security
benefits;
(d) arising with respect to zoning restrictions, licenses, covenants,
building restrictions and other similar charges or encumbrances on the use
of real property of such Person which do not materially interfere with the
ordinary conduct of such Person's business; and
(e) minor defects and irregularities in titles, survey exceptions,
encumbrances, easements or reservations of others for rights-of-way, roads,
pipelines, railroad crossings, services, utilities or other similar
purposes which do not adversely affect the value of the property, or
outstanding mineral rights or reservations (including rights with respect
to the removal of mineral resource) which do not materially diminish the
value of the surface estate, assuming usage of such surface estate similar
to that being carried on by any Loan Party as of the Effective Date.
"Debt Service" means for the most recently completed four fiscal
------------
quarters for which financial statements are available, the sum of (a)
Consolidated Interest Expense (other than the amount of any interest accrued,
but not yet due and payable in cash during such period) and (b) scheduled
maturities of the principal amount of Indebtedness and/or cash payments in
respect of the principal amount of Indebtedness due in connection with required
permanent reductions of commitments for borrowed money, whether or not made.
"Default" means any of the events specified in Section 9, whether or
------- ---------
not any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Disposition" has the meaning set forth in Section 8.5.
----------- -----------
11
"Disqualified Stock" means any Equity Interest that, by its terms (or
------------------
by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part.
"Documentation Agent" means Credit Suisse First Boston.
-------------------
"Dogwood" means Dogwood Communications, Inc., a Delaware corporation.
-------
"Dogwood Acquisition" means the acquisition by the Borrower
-------------------
(indirectly through the acquisition by Atlanta) of all of the outstanding Equity
Interests of Dogwood.
"Dogwood Licenses" means Dogwood Licenses, Inc., a Delaware
----------------
corporation.
"Dollars" and "$" means dollars in lawful currency of the United
------- -
States of America.
"EBITDA" of a specified Person means, for any period, the consolidated
------
net income of such specified Person and its Restricted Subsidiaries for such
period:
(a) plus (without duplication and to the extent involved in computing
----
such consolidated net income) (i) Consolidated Interest Expense, (ii)
provision for taxes on income or profits and (iii) depreciation,
amortization and other non-cash items (including non-cash employee and
officer equity compensation expenses, amortization of goodwill and other
intangibles and barter expenses), and
(b) minus (without duplication and to the extent involved in computing
-----
such consolidated net income) (i) any gains (or plus losses), together with
any related provision for taxes on such gains (or losses), realized in
connection with any sale of assets (including, without limitation,
dispositions pursuant to Sale and Leaseback Transactions), (ii) any non-
cash or extraordinary gains (or plus losses), together with any related
provision for taxes on such extraordinary gains (or losses), (iii) the
amount of any cash payments related to non-cash charges that were added
back in determining EBITDA in any prior period and (iv) barter revenues,
provided, however, that
-------- -------
(1) the net income of any other Person that is accounted for by
the equity method of accounting shall be included only to the extent of the
amount of dividends or distributions paid in cash to such specified Person
whose EBITDA is being determined or a Wholly Owned Restricted Subsidiary
thereof;
(2) the net income of any other Person that is a Restricted
Subsidiary (other than a Wholly Owned Restricted Subsidiary) or is an
Unrestricted Subsidiary shall be included only to the extent of the amount
of dividends or distributions paid in cash to such
12
specified Person whose EBITDA is being determined or a Wholly Owned
Restricted Subsidiary thereof;
(3) the net income (loss) of any other Person acquired after the
Initial Effective Date in a pooling of interests transaction for any period
prior to the date of such acquisition shall be excluded (to the extent
otherwise included); and
(4) gains or losses from sales of assets other than sales of
assets acquired and held for resale in the ordinary course of business
shall be excluded (to the extent otherwise included).
All of the foregoing will be determined in accordance with GAAP.
In addition, for purposes of calculating the Leverage Ratio and the
Senior Leverage Ratio, (a) with respect to Acquisitions not owned at all times
during the period involved in determining the EBITDA for the Leverage Ratio and
the Senior Leverage Ratio, there shall be (i) included the EBITDA of any
Acquisitions acquired by the Borrower or any Restricted Subsidiary during the
period involved in such determination and (ii) excluded the EBITDA of any
Dispositions by the Borrower or any Restricted Subsidiary during the period
involved in such determination, assuming in each such case that such
Acquisitions or Dispositions were acquired or disposed of, as the case may be,
on the first day of such period; and (b) with respect to the Xxxx Acquisition
and the Allur Acquisition, the Borrower shall be entitled to certain expense add
backs to EBITDA in the amounts and during the periods set forth in Schedule 1.1B
-------------
and (c) with respect to any other Permitted Acquisitions, the Lenders agree to
enter into good faith negotiations with the Borrower to consider pro forma
adjustments to EBITDA to eliminate costs which would be nonrecurring expense
items after giving effect to such Permitted Acquisitions.
"Effective Date" has the meaning set forth in Section 11.8.
-------------- ------------
"Environmental Laws" means any and all Federal, state, local or
------------------
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
regulating, relating to or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any time
hereafter be in effect.
"Equity Interest" of any Person means any and all shares, interests,
---------------
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any preferred
stock, but excluding any debt securities convertible into such equity, and
including, in the case of a partnership, partnership interests (whether general
or limited) and any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, such partnership.
"Equity Proceeds" has the meaning set forth in Section 4.2(e).
--------------- --------------
13
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"Eurocurrency Reserve Requirements" means, for any day as applied to a
---------------------------------
Eurodollar Loan, the aggregate (without duplication) of the rates (expressed as
a decimal fraction) of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
------------------------
Regulation D of such Board) maintained by a member bank of the Federal Reserve
System.
"Eurodollar Base Rate" means the rate per annum determined by the
--------------------
Administrative Agent at approximately 11:00 a.m. (London time) on the date which
is two Business Days prior to the beginning of the relevant Interest Period by
reference to the British Bankers' Association Interest Settlement Rates for
deposits in Dollars (as set forth by any service selected by the Administrative
Agent which has been nominated by the British Bankers' Association as an
authorized information vendor for the purpose of displaying the rates) for a
period equal to such Interest Period; provided that, to the extent that an
interest rate is not ascertainable pursuant to the foregoing provisions of this
definition, the "Eurodollar Base Rate" shall be the interest rate per annum
determined by the Administrative Agent to be the average of the rates per annum
at which deposits in Dollars are offered for such relevant Interest Period to
major banks in the London interbank market in London, England at approximately
11:00 a.m. (London time) on the date which is two Business Days prior to the
beginning of such Interest Period.
"Eurodollar Loans" means any Loan that bears interest computed on the
----------------
basis of the Eurodollar Rate.
"Eurodollar Rate" means, with respect to each day during each Interest
---------------
Period pertaining to a Eurodollar Loan, a rate per annum determined for such day
in accordance with the following formula:
Eurodollar Base Rate
---------------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche" means the collective reference to Eurodollar
------------------
Loans made by the Lenders, the then current Interest Periods of which begin on
the same date and end on the same later date (whether or not such Loans shall
originally have been made on the same day).
"Event of Default" means any of the events specified in Section 9,
---------------- ---------
provided that any requirement for the giving of notice, the lapse of time, or
--------
both, or any other condition, has been satisfied.
"Excess Proceeds" has the meaning set forth in Section 4.2(d).
--------------- --------------
14
"Exchange Act" means the Securities Exchange Act of 1934, as amended
------------
from time to time, and any successor statutes.
"Exchange Agreement" means that certain Exchange Agreement, dated as
------------------
of June 6, 1995, by and among the Borrower and the Series A Preferred Investors
(as such term is defined in the Preferred Stockholders' Agreement), as amended
from time to time in accordance with the terms hereof and thereof.
"Fair Market Value" means with respect to any asset or property, the
-----------------
sale value that would be obtained in an arm's length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy. All determinations in the covenants
of Fair Market Value shall be made by the Board of Directors of the Borrower and
shall be evidenced by a resolution of such Board set forth in a certificate of a
Responsible Officer delivered to the Administrative Agent, upon which the
Administrative Agent may conclusively rely.
"FCC" means the Federal Communications Commission (or any successor
---
agency, commission, bureau, department or other political subdivision of the
United States of America).
"FCC License" means any radio broadcast service, community antenna
-----------
relay service, broadcast auxiliary license, earth station registration, business
radio, microwave or special safety radio service license issued by the FCC
pursuant to the Communications Act of 1934, as amended.
"Federal Funds Rate" means for any day the rate per annum (rounded
------------------
upwards if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (a) if such day is not a Business Day, the
--------
Federal Funds Rate for such day shall be such rate on such transactions on the
preceding Business Day as so published on the next succeeding Business Day and
(b) if no such rate is so published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate quoted to the
Administrative Agent on such day on such transactions as reasonably determined
by the Administrative Agent.
"Fee Letter" means that certain letter agreement or letter agreements,
----------
each dated as of February 26, 1999, to which the Administrative Agent and the
Borrower are parties, as amended, modified, restated, supplemented, renewed,
extended, increased, rearranged and/or substituted from time to time.
"Final Order" means an action by the FCC or other Tribunal that has
-----------
not been vacated, reversed, stayed, enjoined, set aside, annulled or suspended
and with respect to which no requests by any Person are pending for
administrative or judicial review, reconsideration, appeal or stay and the time
for filing any such requests and the time to review or comment with respect to
any such action and for the FCC or other Tribunal to set aside such action on
its own order have expired.
15
"Fixed Charge Coverage Ratio" means the ratio of (i) EBITDA of the
---------------------------
Borrower and the Restricted Subsidiaries for the most recently completed four
fiscal quarters for which financial statements are available to (ii) Fixed
Charges for such four fiscal quarters.
"Fixed Charges" means, for any period, the sum of (a) Debt Service of
-------------
the Borrower and the Restricted Subsidiaries for such period, plus (b) cash
----
taxes paid by the Borrower and the Restricted Subsidiaries for such period, plus
----
(c) Capital Expenditures of the Borrower and the Restricted Subsidiaries for
such period, plus (d) cash Restricted Payments (other than Restricted Payments
----
made pursuant to Section 8.6(b)) made during such period.
--------------
"GAAP" means generally accepted accounting principles in the United
----
States of America as in effect as of the Initial Effective Date, including those
set forth in (i) the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants, (ii) statements
and pronouncements of the Financial Accounting Standards Board, (iii) such other
statements by such other entity as approved by a significant segment of the
accounting profession and (iv) the rules and regulations of the SEC governing
the inclusion of financial statements (including pro forma financial statements)
in periodic reports required to be filed pursuant to Section 13 of the Exchange
Act, including opinions and pronouncements in staff accounting bulletins and
similar written statements from the accounting staff of the SEC.
"Governmental Authority" means any nation or government, any state or
----------------------
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guaranty" means each Guaranty of a Restricted Subsidiary,
--------
substantially in the form of Exhibit C, executed and delivered as required
---------
pursuant to the terms hereof, as the foregoing may be amended, modified,
restated, supplemented, renewed, extended, rearranged or substituted from time
to time.
"Guaranty Obligation" means for any Person, without duplication, any
-------------------
obligation, contingent or otherwise, of such Person guaranteeing or otherwise
becoming liable for any Indebtedness of any other Person ("primary obligor") in
---------------
any manner, whether directly or indirectly, and including, without limitation,
any obligation of such Person, direct or indirect (a) to purchase or pay, or to
advance or supply funds for the purchase or payment of such Indebtedness or to
purchase, or to advance or supply funds for the purchase of, any security for
the payment of such Indebtedness, (b) to purchase property, securities or
services for the purpose of assuring the owner of such Indebtedness of the
payment of such Indebtedness or (c) to maintain working capital, equity capital
or other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness; provided that the term
--------
Guaranty Obligation shall not include endorsements for collection or deposit, in
each case in the ordinary course of the endorser's business.
"Highest Lawful Rate" shall mean at the particular time in question
-------------------
the maximum rate of interest which, under applicable Law, the Lenders are then
permitted to charge on the Obligations. If the maximum rate of interest which,
under applicable Law, the Lenders are permitted to charge
16
on the Obligations shall change after the Effective Date, the Highest Lawful
Rate shall be automatically increased or decreased, as the case may be, from
time to time as of the effective time of each change in the Highest Lawful Rate
without notice to the Borrower.
"Xxxxxx" means Xxxxxxxxx X. Xxxxxx.
------
"Xxxxxx-Xxxxxxx Entities" means the Xxxxxxxxx X Xxxxxx Revocable
-----------------------
Trust, the Xxxxxx X. Xxxxxxx, III Revocable Trust, Xxxxxx-Xxxxxxx and Company,
L.L.C., a Delaware limited liability company, and Xxxxxx-Xxxxxxx Family
Partners, L.P., a Delaware limited partnership.
"Indebtedness" means, with respect to any Person, whether or not
------------
contingent, (i) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices) or which is evidenced by a note, bond,
debenture or similar instrument, (ii) all Capital Lease Obligations of such
Person, (iii) all obligations of such Person in respect of surety bonds, letters
of credit, bankers' acceptances and similar instruments issued or created for
the account of such Person, (iv) all liabilities in respect of Interest Hedge
Agreements of such Person, (v) any liability secured by any Lien on any property
owned by such Person even if such Person has not assumed or otherwise become
liable for the payment thereof to the extent of the value of the property
subject to such Lien, (vi) all Disqualified Stock of such Person, and (vii) to
the extent not otherwise included, any Guaranty Obligation of such Person;
provided, however, in no event shall the Senior Preferred Stock (including any
-------- -------
and all accrued dividends thereon) be considered "Indebtedness."
"Information" means written information, including, without
-----------
limitation, certificates, reports, statements (other than financial statements,
budgets, projections and similar financial data) and documents.
"Initial Effective Date" means June 30, 1998.
----------------------
"Insolvency" means with respect to any Multiemployer Plan, the
----------
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Insolvent" means pertaining to a condition of Insolvency.
---------
"Intellectual Property Security Agreement" means each Intellectual
----------------------------------------
Property Security Agreement and Assignment, substantially in the form of Exhibit
-------
G-1, executed and delivered by the Borrower and the Restricted Subsidiaries as
---
required by the terms hereof, as the foregoing may be amended, modified,
restated, supplemented, renewed, extended, rearranged or substituted from time
to time.
"Interest Coverage Ratio" means, as of the date of any determination,
-----------------------
the ratio of (a) EBITDA of the Borrower and the Restricted Subsidiaries for the
most recently completed four fiscal quarters for which financial statements are
available to (b) Consolidated Interest Expense (other than
17
the amount of any interest accrued, but not yet due and payable during such
period) of the Borrower and the Restricted Subsidiaries for such four fiscal
quarters.
"Interest Hedge Agreements" means any interest rate swap agreements,
-------------------------
interest rate cap agreements, interest rate collar agreements, or any similar
agreements, or arrangements designed to hedge the risk of variable interest rate
volatility.
"Interest Payment Date" means (a) as to any ABR Loan, (i) the last
---------------------
Business Day of each March, June, September and December prior to the
Termination Date and (ii) the Termination Date, (b) as to any Eurodollar Loan
(i) having an Interest Period of three months or less, the last day of such
Interest Period, (ii) having an Interest Period longer than three months, each
day which is three months or a whole multiple thereof, after the first day of
such Interest Period and the last day of such Interest Period and (iii) the
Termination Date.
"Interest Period": with respect to any Eurodollar Loan:
---------------
(a) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurodollar Loan and ending
one, two, three or six months thereafter (or, to the extent available from
all Lenders, nine or twelve months thereafter), as selected by the Borrower
in its Notice of Borrowing or Notice of Conversion/Continuation, as the
case may be, given with respect thereto; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending
one, two, three or six months thereafter (or, to the extent available from
all Lenders, nine or twelve months thereafter), as selected by the Borrower
by irrevocable notice to the Administrative Agent not less than three
Business Days prior to the last day of the then current Interest Period
with respect thereto;
provided that, all of the foregoing provisions relating to Interest Periods are
--------
subject to the following:
(i) if any Interest Period would otherwise end on a day that is not
a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
(ii) any Interest Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date; and
(ii) 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 end on
the last Business Day of a calendar month.
"Investment" means, in any Person, any direct or indirect advance,
----------
loan (other than advances to customers in the ordinary course of business that
are recorded as accounts receivable
18
on the balance sheet of the lender) or other extensions of credit (including by
way of a Guaranty Obligation or similar arrangement) or capital contribution to
(by means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase or
acquisition of Equity Interests, Indebtedness or other similar instruments
issued by such Person. For purposes of Section 8.8, any property transferred to
-----------
or from an Unrestricted Subsidiary shall be valued at its Fair Market Value at
the time of such transfer, in each case as determined in good faith by the Board
of Directors of the Borrower.
"Investors" means Alta Subordinated Debt Partners III, L.P.,
---------
BancBoston Investments Inc., Xxxxx X. Xxxxxx, Syncom Capital Corporation,
Alliance Enterprise Corporation, Xxxxxxx (successor in interest to Greater
Philadelphia Venture Capital Corporation, Inc.), Opportunity Capital
Corporation, Medallion Capital, Inc. (successor in interest to Capital
Dimensions Venture Fund, Inc.), TSG Ventures L.P. (successor in interest to TSG
Ventures, Inc.) and Fulcrum Venture Capital Corporation.
"Issuing Lender" means NationsBank, provided that, in the event that
-------------- --------
NationsBank shall be replaced as the Administrative Agent pursuant to Section
-------
10.9, no Letter of Credit shall be issued by NationsBank on or after the date of
----
such replacement and (ii) the replacement Administrative Agent shall be the
Issuing Lender from and after the date of such replacement.
"LMA Agreements" means any time brokerage agreement, local marketing
--------------
agreement, local market affiliation agreement, joint sales agreement, joint
operating agreement or joint operating venture for the operation of a radio
station or related or similar agreements entered into, directly or indirectly,
between any Loan Party and any other Person other than another Loan Party.
"Law" means all applicable statutes, laws, ordinances, regulations,
---
rules, guidelines, orders, writs, injunctions, or decrees of any state,
commonwealth, nation, territory, province, possession, township, county, parish,
municipality or Tribunal.
"L/C Fee Payment Date" means (i) the last Business Day of each March,
--------------------
June, September and December prior to the Termination Date and (ii) the
Termination Date.
"L/C Obligations" means at any time, an amount equal to the sum of (a)
---------------
the aggregate then undrawn and unexpired amount of the then outstanding Letters
of Credit and (b) the aggregate amount of all unpaid Reimbursement Obligations.
"Lender" has the meaning set forth in the introductory paragraph of
------
this Agreement.
"Letters of Credit" has the meaning set forth in Section 3.1(a).
----------------- --------------
"Leverage Ratio" means, as of any date, the ratio of (i) the sum of
--------------
all Indebtedness of the Borrower and the Restricted Subsidiaries as of such date
to (ii) EBITDA of the Borrower and the Restricted Subsidiaries for the most
recently completed four fiscal quarters for which financial statements are
available.
19
"License" means as to any Person, any license, permit, certificate of
-------
need, authorization, certification, accreditation, franchise, approval, or grant
of rights by any Governmental Authority or other Person necessary or appropriate
for such Person to own, maintain, or operate its business or property, including
FCC Licenses.
"License Subsidiaries" means any Wholly Owned Restricted Subsidiary of
--------------------
the Borrower organized by the Borrower for the sole purpose of holding FCC
Licenses and other Necessary Authorizations.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any capital lease having
substantially the same economic effect as any of the foregoing).
"Xxxxxxx" means Xxxxxx X. Xxxxxxx, III.
-------
"Xxxxxxx Credit Agreement" means that certain loan agreement, dated as
------------------------
of October 23, 1997, among Xxxxxxx, as the borrower thereunder, and NationsBank
of Texas, N.A., as the lender thereunder (the "Loan Agreement") and the
--------------
promissory note, of even date therewith, executed by Xxxxxxx in favor of
NationsBank of Texas, N.A. in connection with such Loan Agreement, in the
original principal amount of $367,000, and any and all other Loan Documents (as
such term is defined in such Loan Agreement) relating thereto.
"Loan" has the meaning set forth in Section 2.1.
---- -----------
"Loan Documents" means this Agreement, the Notes, the Security
--------------
Documents, all UCC financing statements, the Standstill Agreement, any
Application, any Interest Hedge Agreements with any Lenders relating to the
Loans, the Fee Letter, all certificates executed and delivered by any Loan Party
in connection with any Loan Document, any agreements between any Loan Party and
the Administrative Agent or any Lender in respect of fees or the reimbursement
of costs and expenses in connection with the transactions contemplated hereby
and any and all other documents, instruments, certificates and agreements now or
hereafter executed and delivered by any Person pursuant to or in connection with
any of the foregoing, and any and all present or future amendments,
modifications, supplements, renewals, extensions, increases, restatements,
rearrangements or substitutions from time to time of all or any part of any of
the foregoing.
"Loan Parties" means the collective reference to the Borrower and the
------------
Restricted Subsidiaries.
"Majority Lenders" means (i) initially, in the event that there are no
----------------
more than two Lenders and until such time as there are more than two Lenders, at
any time when no Loans or L/C Obligations are outstanding, the Lenders having
Commitments equal to or more than 66-2/3% of the Aggregate Commitment, and at
any time when Loans or L/C Obligations are outstanding, the Lenders with
outstanding Loans and participations in L/C Obligations having an unpaid
principal
20
balance and face amount, respectively, equal to or more than 66-2/3% of all
Loans and L/C Obligations outstanding, excluding from such calculation the
Lenders which have failed or refused to fund a Loan or their respective portion
of an unpaid Reimbursement Obligation; and (ii) at any time on or after there
are more than two Lenders and continuing at all times thereafter whether or not
there are only two Lenders, at any time when no Loans or L/C Obligations are
outstanding, the Lenders having Commitments more than 50% of the Aggregate
Commitment, and at any time when Loans or L/C Obligations are outstanding, the
Lenders with outstanding Loans and participations in L/C Obligations having an
unpaid principal balance and face amount, respectively, more than 50% of all
Loans and L/C Obligations outstanding, excluding from such calculation the
Lenders which have failed or refused to fund a Loan or their respective portion
of an unpaid Reimbursement Obligation.
"Management Stockholders" means Hughes, Liggins, Xxxxx and Xxxxxxx.
-----------------------
"Margin Stock" has the meaning assigned to such term in Regulation U
------------
of the Board.
"Material Adverse Effect" means (i) any adverse effect upon the
-----------------------
validity or enforceability of any Loan Document or the rights and remedies of
the Lenders thereunder, (ii) any material adverse effect on the business,
condition (financial or otherwise), operations, performance, property or assets
of (x) the Borrower and the Restricted Subsidiaries taken as a whole or (y) any
License Subsidiary or (iii) any material adverse effect upon the ability of any
Loan Party to perform its obligations under any Loan Document.
"Materials of Environmental Concern" means any gasoline or petroleum
----------------------------------
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Material Lease" means each lease of real property by any Loan Party,
--------------
as lessee, sublessee or lessor, which is a radio studio location or antenna,
tower or transmitter site.
"Xxxxx" means Xxxxx X. Xxxxx III.
-----
"Mortgaged Properties" means the owned real properties and leasehold
--------------------
and subleasehold interests of the Loan Parties specified on Schedule 5.24(b) and
----------------
any other real property or interests in real property hereafter subject to any
Mortgage.
"Mortgages" means each deed of trust, leasehold deed of trust,
---------
mortgage, deed to secure debt, leasehold mortgage, collateral assignment of
leases or other real estate security document securing the Obligations or any
portion thereof and all modifications and supplements to any of the foregoing
that are executed and delivered by any Loan Party pursuant to or in connection
with any of the Loan Documents, and any and all amendments, modifications,
restatements, supplements, renewals, extensions, rearrangements or substitutions
from time to time of any of the foregoing.
21
"Multiemployer Plan" means a multiemployer plan as defined in sections
------------------
3(37) or 4001(a)(3) of ERISA or section 414 of the Code to which the Borrower or
any Common Controlled Entity is making, or has made, or is accruing, or has
accrued, an obligation to make contributions.
"NationsBank" means NationsBank, N.A.
-----------
"Necessary Authorization" means any license, permit, consent,
-----------------------
franchise, order approval or authorization from, or any filing, recording or
registration with, any Tribunal (including, without limitation, the FCC)
necessary to the conduct of any Loan Party's business or for the ownership,
maintenance and operation by any Loan Party of its Stations and other properties
or to the performance by any Loan Party of its obligations under any LMA
Agreement to which it is a party.
"Net Proceeds" means, with respect to any Disposition or Recovery
------------
Event, the aggregate cash proceeds received by the Borrower or a Restricted
Subsidiary in respect of such Disposition or Recovery Event, which amount is
equal to the excess, if any, of:
(i) the cash received by the Borrower or a Restricted Subsidiary
(including any cash payments received by way of deferred payment pursuant
to, or monetization of, a note or installment receivable or otherwise, but
only as and when received) in connection with such Disposition or Recovery
Event, over
----
(ii) the sum of
(a) the amount of any Indebtedness including any premium thereon
and fees and expenses associated therewith which is required to be
repaid by the Borrower or a Restricted Subsidiary in connection with
such Disposition, plus
(b) the out-of-pocket expenses incurred by the Borrower or a
Restricted Subsidiary in connection with such Disposition or Recovery
Event, plus
(c) provision for taxes, including income taxes, attributable to
the Disposition or Recovery Event or attributable to required
prepayments or repayments of Indebtedness with the proceeds of such
Disposition or Recovery Event, plus
(d) a reasonable reserve for the after-tax costs of any
indemnification payments (fixed or contingent) attributable to the
seller's indemnities to the purchaser in respect of such Disposition
or Recovery Event undertaken by the Borrower or any of the Restricted
Subsidiaries in connection with such Disposition or Recovery Event.
For purposes of this definition and amounts due under Section 4.2(d),
--------------
the following are deemed to be cash: (x) the assumption of Indebtedness of the
Borrower or any Restricted Subsidiary and the release of the Borrower or such
Restricted Subsidiary from all liability on such Indebtedness in connection with
such Disposition (other than customary indemnification provisions
22
relating thereto that do not involve the repayment of funded Indebtedness) and
(y) securities or notes received by the Borrower or any Restricted Subsidiary
from the transferee that are promptly converted by the Borrower or such
Restricted Subsidiary into cash.
"Net Revenues" means gross revenues less agency commissions, after all
------------
proper charges and reserves, as determined in accordance with GAAP.
"New Exchange Debentures" means debentures of the Borrower in
-----------------------
aggregate principal amount not to exceed the liquidation value of $50,000,000
of the New Preferred Stock as initially issued (increasing for additional
issuance of like debentures or preferred stock in lieu, respectively, of
interest or dividends thereon, not exceeding an additional $40,000,000), to be
issued by the Borrower, at its option, only in exchange for New Preferred Stock,
and having the terms set forth in the Registration Statement on Form S-1 filed
by the Borrower with the SEC on March 19, 1999 (with such changes in such
Registration Statement as are reasonably acceptable to the Administrative Agent
and the Lenders).
"New Exchange Debenture Indenture" means a trust indenture, having
--------------------------------
terms reasonably satisfactory to the Administrative Agent and the Lenders,
pursuant to which the New Exchange Debentures are to be issued, and not
providing for the issuance of any other Indebtedness or Equity Interests of the
Borrower.
"New Preferred Stock" means Preferred Stock, Series ____, of the
-------------------
Borrower to be issued by the Borrower in connection with a Qualifying Public
Equity Offering for gross proceeds of not less than $50,000,000, and having the
terms set forth in the Registration Statement on Form S-1 filed by the Borrower
with the SEC on March 19, 1999 (with such changes in such Registration Statement
as are reasonably acceptable to the Administrative Agent and the Lenders).
"New Radio Market" means a radio market (as defined by Arbitron) that
----------------
is not served by a radio station owned or operated by the Borrower or a
Restricted Subsidiary before the Effective Date.
"Non-Excluded Taxes" has the meaning set forth in Section 4.10(a).
------------------ ---------------
"Non-U.S. Lender" has the meaning set forth in Section 4.10(b).
--------------- ---------------
"Non-Voting Common Stock" means the non-voting class C common stock,
-----------------------
par value $.01 per share of the Borrower.
"Notes" has the meaning set forth in Section 2.1.
----- -----------
"Notice of Borrowing" has the meaning set forth in Section 2.3.
------------------- -----------
"Notice of Conversion/Continuation" has the meaning set forth in
---------------------------------
Section 4.5.
-----------
23
"Obligations" means the unpaid principal of and interest on
-----------
(including, without limitation, interest accruing after the maturity of the
Loans and Reimbursement Obligations and interest accruing after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Loan Party, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
the Loans and Reimbursement Obligations and all other obligations and
liabilities of any Loan Party to the Administrative Agent or to any Lender (or,
in the case of any Interest Hedge Agreement, any Affiliate of any Lender),
whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, any other Loan Document, the Letters of Credit, any
Interest Hedge Agreement entered into with any Lender (or any Affiliate of any
Lender) or any other document executed and delivered by any Loan Party in
connection herewith or therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses (including,
without limitation, all reasonable fees, charges and disbursements of counsel to
the Administrative Agent or to any Lender that are required to be paid by any
Loan Party pursuant hereto) or otherwise.
"Operating Agreement" means an agreement substantially in the form of
-------------------
Exhibit D.
---------
"Operating Lease" means any lease that is an operating lease in
---------------
accordance with GAAP and that has an initial or remaining noncancellable lease
term in excess of one year.
"OSHA" means the Occupational Safety and Health Act, 29 U.S.C.
----
(S)(S)651 et seq., as amended.
-------
"Participant" has the meaning set forth in Section 11.6(b).
----------- ---------------
"PBGC" means the Pension Benefit Guaranty Corporation established
----
pursuant to Subtitle A of Title IV of ERISA.
"Perfection Certificate" means a Perfection Certificate duly executed
----------------------
by each Loan Party, in the form of Exhibit E and delivered to the Administrative
---------
Agent pursuant to Section 6.1(r).
--------------
"Permitted Acquisitions" has the meaning set forth in Section 8.7(b).
---------------------- --------------
"Permitted Investments" means:
---------------------
(i) any Investment in the Borrower or any Wholly Owned
Restricted Subsidiary;
(ii) any Investment in Cash Equivalents;
24
(iii) any Investment in a Person if, as a result of such
Investment, (a) such Person becomes a Wholly Owned Restricted Subsidiary of
the Borrower, or (b) such Person either (1) is merged, consolidated or
amalgamated with or into the Borrower or one of its Wholly Owned Restricted
Subsidiaries and the Borrower or such Wholly Owned Restricted Subsidiary is
the Surviving Person or the Surviving Person becomes a Wholly Owned
Restricted Subsidiary, or (2) transfers or conveys all or substantially all
of its assets to, or is liquidated into, the Borrower or one of its Wholly
Owned Restricted Subsidiaries;
(iv) any Investment in accounts and notes receivable acquired
in the ordinary course of business;
(v) loans and advances to employees of the Borrower or any
Restricted Subsidiary in the ordinary course of business not in excess of
$500,000 in the aggregate at any time outstanding; and
(vi) a one-time term loan from the Borrower to Xxxxxxx made in
connection with the pay-off and termination of the Xxxxxxx Credit
Agreement, in an original principal amount not to exceed $380,000.
"Permitted Line of Business" has the meaning set forth in Section
-------------------------- -------
8.11.
"Permitted Sale Representations" means commercially reasonable
------------------------------
representations, warranties and indemnities with respect to properties or assets
of the Borrower or any Restricted Subsidiary that are normal and customary in
the business of the Borrower or such Restricted Subsidiary, as the case may be.
"Person" means an individual, partnership, corporation, limited
------
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Plan" means at a particular time, any employee benefit plan which is
----
covered by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) a "contributing sponsor" as defined in Section
4001(a)(13) of ERISA or a member of such contributing sponsor's "control group"
as defined in Section 4001(a)(14) of ERISA.
"Pledge Agreements" means each Pledge Agreement, substantially in the
-----------------
form of (i) Exhibit F-1 with respect to the Borrower, (ii) Exhibit F-2 with
----------- -----------
respect to Restricted Subsidiaries, (iii) Exhibit F-3 with respect to the
-----------
Warrantholders (the "Warrantholders' Pledge"), and (iv) Exhibit F-4 with respect
---------------------- -----------
to Management Stockholders, as each of the foregoing may be amended, modified,
restated, supplemented, renewed, extended, rearranged and substituted from time
to time.
25
"Preferred Stock", as applied to the Equity Interests of any Person,
---------------
means Equity Interests of any class or classes (however designated) that is
preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over Equity Interests of any other class of such
Person.
"Preferred Stock Documents" means all of the documents, agreements,
-------------------------
instruments, proxies and certificates executed and delivered by any Loan Party
in connection with the Senior Preferred Stock or otherwise relating to the
Senior Preferred Stock, including but not limited to the Securities Purchase
Agreement, the Warrant Agreement, the Exchange Agreement, the Amended and
Restated Certificate of Incorporation, the Preferred Stockholders' Agreement,
the Warrant Certificates and all security agreements, guaranties, pledge
agreements, collateral assignments, mortgages, deeds of trust and other security
documents relating to any of the foregoing, all certificates and proxies
executed and delivered in connection with any of the foregoing and all other
documents, agreements and instruments now or hereafter executed or delivered by
any Person in connection with or as security for the payment and performance of
the Senior Preferred Stock, as amended, in each case, with the consent (to the
extent necessary) of the Lenders required pursuant to the Subordination
Agreement.
"Preferred Stockholders' Agreement" means that certain Preferred
---------------------------------
Stockholders' Agreement, dated as of May 14, 1997 by and among the Investors,
the Borrower, Radio One Licenses, Inc. (the surviving corporation of the merger
of Radio One License LLC) and the Management Stockholders, as amended by that
certain First Amendment to Preferred Stockholders' Agreement, dated as of June
30, 1998, by that certain Second Amendment to Preferred Stockholders' Agreement,
dated as of December 23, 1998, by that certain Third Amendment to Preferred
Stockholders' Agreement, dated as of December 23, 1998, by that certain Fourth
Amendment to Preferred Stockholders' Agreement dated as of December 31, 1998,
and by that certain Fifth Amendment to Preferred Stockholders' Agreement dated
as of the Effective Date and as otherwise amended from time to time and in
accordance with the terms hereof and thereof.
"Prime Rate" has the meaning set forth in the definition of ABR.
----------
"Principal Shareholders" means (i) Xxxxxx and Xxxxxxx, (ii) any
----------------------
foundation or trust in which Xxxxxx or Xxxxxxx has a beneficial interest,
provided that for purposes of determining compliance with clause (v)(3) of the
definition of Change of Control set forth in Section 1.1, only to the extent of
-----------
such beneficial interests of Xxxxxx and/or Xxxxxxx in such foundation or trust
or (iii) a partnership, limited liability company or other business combination
in which Xxxxxx or Xxxxxxx has an interest, provided that for purposes of
determining compliance with clause (v)(3) of the definition of Change of Control
set forth in Section 1.1, only to the extent of the interests of Xxxxxx and/or
-----------
Xxxxxxx in such partnership, limited liability company or other business
combination.
"Properties" has the meaning set forth in Section 5.17(e).
---------- ---------------
"Public Equity Offering" means an underwritten primary public offering
----------------------
of common stock of the Borrower pursuant to an effective registration statement
under the Securities Act.
26
"Purchase Agreement" means that certain Purchase Agreement, dated as
------------------
of May 14, 1997, among the Borrower, as the issuer thereunder, Radio One
Licenses, Inc., as a guarantor thereunder, and Credit Suisse First Boston
Corporation and NationsBanc Capital Markets, Inc., acting on behalf of
themselves and as the representatives of the several initial purchasers
thereunder, regarding the sale by the Borrower of the Senior Subordinated Notes.
"Purchase Money Indebtedness" means Indebtedness of the Borrower and
---------------------------
the Restricted Subsidiaries incurred in connection with the purchase of property
or assets for the business of the Borrower and the Restricted Subsidiaries.
"Purchase Money Lien" means any Lien securing solely Purchase Money
-------------------
Indebtedness; provided that (i) any such Lien attaches concurrently with the
--------
acquisition of the subject property, (ii) such Lien attaches solely to the
property so acquired in such transaction and (iii) the principal amount of the
Indebtedness secured thereby does not exceed 100% of the cost of such property.
"Qualifying Public Equity Offering" means an initial Public Equity
---------------------------------
Offering that results in cash proceeds to the Borrower (net of all associated
fees, costs, and commissions) of at least $50,000,000.
"Recovery Event" means any settlement of or payment in respect of a
--------------
condemnation or taking or a property insurance claim or casualty insurance claim
relating to any property or asset or rights therein of the Borrower or any of
the Restricted Subsidiaries.
"Register" has the meaning set forth in Section 11.6(g).
-------- ---------------
"Reimbursement Obligations" means the obligations of the Borrower to
-------------------------
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
-----------
Letters of Credit.
"Reorganization" means with respect to any Multiemployer Plan, the
--------------
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event" means any of the events set forth in Section
----------------
4043(b) of ERISA, other than those events as to which the thirty day notice
period is waived under Sections .13, .14, .16, .18, .19 or .20 of PBGC Reg. (S)
2615.
"Requirement of Law" means as to any Person, the Charter Documents of
------------------
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority (including any
Authorization), in each case applicable to or binding upon such Person or any of
its property or to which such Person or any of its property is subject.
"Responsible Officer" means the chief executive officer, the president
-------------------
or the chief financial officer of the relevant Loan Party.
27
"Restricted Payment" means, with respect to any Person, (i) the
------------------
declaration or payment of any dividends or any other distributions of any sort
in respect of its Equity Interests (including any payment in connection with any
merger or consolidation involving such Person) or similar payment to the direct
or indirect holders of its Equity Interests (other than in each such case
distributions payable solely in its Equity Interests that is not Disqualified
Stock and dividends or distributions payable solely to the Borrower or a Wholly
Owned Restricted Subsidiary), (ii) the purchase, redemption or other acquisition
or retirement for value of any Equity Interests of the Borrower held by any
Person or of any Equity Interests of a Restricted Subsidiary held by any Person
(other than a Wholly Owned Restricted Subsidiary), including the exercise of any
option to exchange any Equity Interests (other than its Equity Interests of the
Borrower that is not Disqualified Stock), or (iii) the purchase, repurchase,
redemption, defeasance (including without limitation, any payment or deposit in
respect of defeasance) or other acquisition or retirement for value, prior to
scheduled maturity, scheduled repayment or scheduled sinking fund payment of any
Disqualified Stock or Subordinated Debt.
"Restricted Subsidiaries" means each direct and indirect Subsidiary of
-----------------------
the Borrower other than an Unrestricted Subsidiary.
"Rights" means rights, remedies, powers and privileges.
------
"ROA Stockholders" means Alta Subordinated Debt Partners III, L.P.,
----------------
Allied Capital Corporation, Allied Investment Corporation, and Syndicated
Communications Venture Partners II, L.P.
"Xxxxxxx" means Xxxxx X. Xxxxxxx.
-------
"Sale and Leaseback Transaction" means a transaction whereby any Loan
------------------------------
Party becomes liable with respect to any lease, whether an Operating Lease or a
capital lease, or any property (whether real, personal or mixed), whether now
owned or hereafter acquired, which (a) any Loan Party has sold or transferred or
is to sell or transfer to any other Person or (b) any Loan Party intends to use
for substantially the same purposes as any other property which has been or is
to be sold or transferred by any Loan Party to any other Person in connection
with such lease.
"SEC" means the Securities and Exchange Commission.
---
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time, and any successor statute.
"Securities Purchase Agreement" means that certain Agreement for
-----------------------------
Purchase and Sale of $17,000,000 Subordinated Secured Promissory Notes Due 2003
and Warrants to Purchase Common Stock of Radio One, Inc., dated as of June 6,
1995, among the Borrower, the Subsidiaries of the Borrower party thereto,
Liggins, Hughes, Xxxxx and the Investors, as amended with the consent of the
Lenders required pursuant to the Subordination Agreement.
28
"Security Agreements" means each Security Agreement, substantially in
-------------------
the form of Exhibit G-2, with respect to the Borrower, and Exhibit G-3, with
----------- -----------
respect to the Restricted Subsidiaries, executed and delivered as required
pursuant to the terms hereof, as each of the foregoing may be amended, modified,
restated, supplemented, renewed, extended, rearranged and substituted from time
to time.
"Security Documents" means the Security Agreements, the Pledge
------------------
Agreements, the Intellectual Property Security Agreements, the Mortgages, each
Guaranty and any and all other agreements, deeds of trust, mortgages, chattel
mortgages, security agreements, pledges, guaranties, assignments of proceeds,
assignments of income, assignments of contract rights, assignments of
partnership interest, assignments of royalty interests, assignments of
performance or other collateral assignments, completion or surety bonds, standby
agreements, subordination agreements, undertakings and other documents,
agreements, instruments and financing statements now or hereafter executed and
delivered by any Person in connection with, or as security for the payment or
performance of, the Obligations or any part thereof.
"Senior Debt" means for the Borrower and the Restricted Subsidiaries
-----------
on a consolidated basis as of the date of any determination, the aggregate
amount of all outstanding Indebtedness other than Subordinated Debt.
"Senior Leverage Ratio" means, as of any date, the ratio of (i) the
---------------------
sum of all Senior Debt of the Borrower and the Restricted Subsidiaries as of
such date to (ii) EBITDA of the Borrower and the Restricted Subsidiaries for the
most recently completed four fiscal quarters for which financial statements are
available.
"Senior Management" shall mean Xxxxxx, Xxxxxxx and Xxxxxxx.
-----------------
"Senior Preferred Stock" means (i) 84,843.03 shares of the 15% Series
----------------------
A Senior Cumulative Redeemable Preferred Stock, par value $.01 per share, (ii)
124,467.10 shares of the 15% Series B Senior Cumulative Redeemable Preferred
Stock, par value $.01 per share and (iii) if exercised, the number of shares of
15% Series A Senior Cumulative Redeemable Preferred Stock to which the holder of
the Allied Warrant is entitled thereunder not to exceed an original liquidation
value of $4,000,000, provided that the holder of such Allied Warrant has assumed
--------
all the obligations and liabilities under, and become a party to, the Standstill
Agreement as an "Investor" thereunder.
"Senior Subordinated Debt Documents" means any and all agreements
----------------------------------
relating to the Senior Subordinated Indebtedness, including but not limited to
the Senior Subordinated Notes, the Purchase Agreement, the Senior Subordinated
Notes Indenture, the Standstill Agreement and the Senior Subordinated
Guaranties.
"Senior Subordinated Guaranties" means any and all guaranties of the
------------------------------
Senior Subordinated Indebtedness.
29
"Senior Subordinated Indebtedness" means the Indebtedness owed by the
--------------------------------
Loan Parties to the Senior Subordinated Note Holders in an original principal
amount not to exceed $85,478,000 which bears interest and has a maturity as set
forth in the Senior Subordinated Notes Indenture.
"Senior Subordinated Note Holders" means the holders of the Senior
--------------------------------
Subordinated Notes.
"Senior Subordinated Notes" means (a) those certain 12% Senior
-------------------------
Subordinated Notes due 2004, from the Borrower in the aggregate original
principal amount of $85,478,000, issued pursuant to the Senior Subordinated
Notes Indenture; and (b) all senior subordinated notes of the Borrower issued in
exchange for the Senior Subordinated Notes on terms substantially identical to
the terms of the Senior Subordinated Notes.
"Senior Subordinated Notes Indenture" means that certain Indenture,
-----------------------------------
dated as of May 15, 1997, among the Borrower, the Restricted Subsidiaries and
United States Trust Company of New York, as trustee for the Senior Subordinated
Note Holders, as amended from time to time in accordance with the terms hereof
and thereof.
"Single Employer Plan" means any Plan which is covered by Title IV of
--------------------
ERISA, but which is not a Multiemployer Plan.
"Solvent" means, with respect to any Person as of the date of any
-------
determination, that on such date (a) the fair value of the property of such
Person (both at fair valuation and at present fair saleable value) is greater
than the total amount of liabilities, including, without limitation, contingent
liabilities, of such Person, (b) the present fair saleable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person is able to realize upon its assets and pay its debts
and other liabilities, contingent obligations and other commitments as they
mature in the normal course of business, (d) such Person does not intend to, and
does not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature and (e) such Person is not
engaged in business or a transaction, and is not about to engage in business or
a transaction, for which such Person's property would constitute unreasonably
small capital after giving due consideration to current and anticipated future
capital requirements and current and anticipated future business conduct and the
prevailing practice in the industry in which such Person is engaged. In
computing the amount of contingent liabilities at any time, such liabilities
shall be computed at the amount which, in light of the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
"Specified Percentage" means at any time, as to any Lender, the
--------------------
percentage of the Aggregate Commitment then constituted by such Lender's
Commitment.
"Standstill Agreement" means that certain Standstill Agreement, dated
--------------------
as of June 30, 1998, between the Borrower, Radio One Licenses, Inc., the
Investors, United States Trust Company of New York, as trustee on behalf of the
Senior Subordinated Note Holders, the Management
30
Stockholders and the Administrative Agent, which Standstill Agreement replaces
that certain Standstill Agreement, dated as of May 19, 1997, among each of the
foregoing parties.
"Station" or "Stations" has the meaning set forth in Section 5.25.
------- -------- ------------
"Subordinated Debt" means any Indebtedness of the Borrower or any
-----------------
Restricted Subsidiary if the instrument creating or evidencing such Indebtedness
or pursuant to which such Indebtedness is outstanding expressly provides that
such Indebtedness is (i) if incurred by the Borrower, subordinated in right of
payment to the Obligations or (ii) if incurred by a Restricted Subsidiary,
subordinated in right of payment to the Guaranty and/or the Obligations, as the
same relate to a Restricted Subsidiary.
"Subordination Agreement" means the Standstill Agreement, which
-----------------------
Standstill Agreement was given in replacement of that certain Intercreditor and
Subordination Agreement, dated as of June 6, 1995, executed by the Loan Parties,
the Investors, the Management Stockholders and the Administrative Agent.
Accordingly, all references in any Loan Document or any other agreement or
document to the Subordination Agreement shall mean the Standstill Agreement.
"Subsidiary" means, with respect to any Person, any corporation,
----------
association or other business entity of which more than 50% of the total voting
power of all Voting Equity Interests entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers or trustees
or other governing body thereof is at the time owned or controlled by such
Person (regardless of whether such Equity Interests are owned directly or
through one or more other Subsidiaries of such Person or a combination thereof).
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of
the Borrower. "Wholly Owned Subsidiary" shall mean (a) any such corporation of
-----------------------
which all of such shares, other than directors' qualifying shares, are so owned
or controlled, directly or indirectly, and (b) any such partnership,
association, joint venture or other entity in which such Person owns or
controls, directly or indirectly, 100% of such interests.
"Surviving Person" means, with respect to any Person involved in or
----------------
that makes any Disposition, the Person formed by or surviving such Disposition
or the Person to which such Disposition is made.
"Syndication Agent" means First Union National Bank.
-----------------
"Tax Return" means, with respect to any Person, any return,
----------
declaration, report, claim for refund, or information return or statement
relating to Taxes of such Person, including any schedule or attachment thereto
and including any amendment thereof.
31
"Taxes" means all taxes, assessments, fees, levies, imposts, duties,
-----
deductions, withholdings or other charges of any nature whatsoever from time to
time or at any time imposed by any Law or Tribunal, excluding, in the case of
each Lender and the Administrative Agent, taxes based on or measured by its net
income, and franchise taxes and any doing business taxes imposed on it, by any
jurisdiction (or political subdivisions thereof) in which the Administrative
Agent or such Lender or any applicable lending office is organized, located or
doing business.
"Termination Date" means the earlier of (i) December 31, 2003, (ii)
----------------
the date the Commitments under this Agreement are otherwise canceled or
terminated in their entirety and (iii) the date all of the Obligations shall
become due and payable whether at stated maturity, by acceleration or otherwise
in accordance with the term hereof.
"Total Available Commitment" means the sum of the Available
--------------------------
Commitments of all of the Lenders.
"Tribunal" means any court or governmental department, commission,
--------
board, bureau, agency or instrumentality of the United States of America or any
state, commonwealth, nation, territory, province, possession, township, county,
parish or municipality, whether now or hereafter constituted or existing.
"UCC" means the Uniform Commercial Code as enacted in the State of New
---
York or other applicable jurisdiction, as amended from time to time.
"Uniform Customs" means the Uniform Customs and Practice for
---------------
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time.
"Unrestricted Subsidiary" means (i) WYCB Acquisition Corporation, a
-----------------------
Delaware corporation and Broadcast Holdings, Inc., a Washington, D.C.
corporation and (ii) any Subsidiary of the Borrower that is formed or acquired
after the Initial Effective Date, which is funded through Investments as
permitted by Section 8.8(b) (as designated by the Board of Directors of the
--------------
Borrower, as provided below) and (iii) any direct or indirect Subsidiary of an
Unrestricted Subsidiary; provided that at the time of the Investment by the
--------
Borrower to such Unrestricted Subsidiary and at all times thereafter (a) neither
the Borrower nor any of the Restricted Subsidiaries provides credit support for
any Indebtedness of such Unrestricted Subsidiary (including any undertaking,
agreement or instrument evidencing such Indebtedness) other than Investments
permitted under Section 8.8, (b) such Subsidiary is not liable, directly or
-----------
indirectly, with respect to any Indebtedness other than Unrestricted Subsidiary
Indebtedness, (c) such Unrestricted Subsidiary is not a party to any agreement,
contract, arrangement or understanding at such time with the Borrower or any
Restricted Subsidiary of the Borrower except for transactions with Affiliates
permitted by the terms of this Agreement unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable to the Borrower or
such Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Borrower and (d) such Unrestricted
Subsidiary does not own any Equity Interest in or Indebtedness of any Subsidiary
of the Borrower that has not theretofore been and is not simultaneously being
designated an Unrestricted Subsidiary. Any such
32
designation by the Board of Directors of the Borrower shall be evidenced to the
Administrative Agent by delivering to the Administrative Agent a board
resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complies with the foregoing conditions.
"Unrestricted Subsidiary Indebtedness" means of any Unrestricted
------------------------------------
Subsidiary, Indebtedness of such Unrestricted Subsidiary (other than a guarantee
of Indebtedness of the Borrower or any Restricted Subsidiary which is non-
recourse to the Borrower and the Restricted Subsidiaries) (i) as to which
neither the Borrower nor any Restricted Subsidiary is directly or indirectly
liable (by virtue of the Borrower or any such Restricted Subsidiary being the
primary obligor on, guarantor of, or otherwise liable in any respect to, such
Indebtedness) and (ii) which, upon the occurrence of a default with respect
thereto, does not result in, or permit any holder of any Indebtedness of the
Borrower or any Restricted Subsidiary to declare a default on such Indebtedness
of the Borrower or any Restricted Subsidiary or cause the payment thereof to be
accelerated or payable prior to its stated maturity.
"Voting Equity Interests" means, with respect to any Person, all
-----------------------
classes of Equity Interest or other interests (including partnership interests)
of such Person then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof.
"Voting Stock" means the total voting power of all classes of capital
------------
stock then outstanding of the Borrower and normally entitled (without regard to
the occurrence of any contingency) to vote in elections of directors of the
Borrower.
"Warrant Agreement" means that certain Warrantholders' Agreement,
-----------------
dated as of June 6, 1995 among the Borrower, the Management Stockholders and the
Investors, as amended by that certain First Amendment to the Warrantholders'
Agreement (the "First Amendment to Warrant Agreement"), dated as of May 19, 1997
------------------------------------
and as otherwise amended from time to time with the consent of the Lenders to
the extent required pursuant to the Standstill Agreement.
"Warrant Certificates" means those certain warrant certificates issued
--------------------
to the Investors pursuant to the Securities Purchase Agreement and the Exchange
Agreement which warrant certificates were replaced by replacement certificates
(entitled "Amended and Restated Warrants") issued in connection with the First
-----------------------------
Amendment to Warrant Agreement and any and all other warrant certificates issued
in replacement or substitution therefor including the "Recapitalization
Warrants" and the "Contingent Warrants" issued pursuant to the Agreement and
Plan of Warrant Recapitalization.
"Warrantholders" means the holders of Warrants issued pursuant to the
--------------
Securities Purchase Agreement and the Exchange Agreement or shares of Common
Equity issued in exchange therefor.
"Warrantholders' Pledge" has the meaning set forth in the definition
----------------------
of Pledge Agreements.
33
"Warrants" means those certain Series B Amended and Restated Warrants
--------
and those certain Series A Amended and Restated Warrants given in replacement
for the warrants issued to the Investors pursuant to the Securities Purchase
Agreement and the Exchange Agreement, and the "Recapitalization Warrants" and
the "Contingent Warrants" issued in replacement for the foregoing pursuant to
the Agreement and Plan of Warrant Recapitalization, to purchase an aggregate of
147.04 shares of the Common Equity of the Borrower on a fully diluted basis
subject to the terms and provisions of the Warrant Certificates.
"Wholly Owned Restricted Subsidiary" means each Restricted Subsidiary
----------------------------------
which is a Wholly Owned Subsidiary.
"Wholly Owned Subsidiary" has the meaning set forth in the definition
-----------------------
of Subsidiary.
"WDYL Acquisition" means the acquisition by the Borrower of all or
----------------
substantially all of the assets, property and business used in the operation of
Station WDYL-FM, Chester, Virginia.
"WFUN Acquisition" means the acquisition by the Borrower of all or
----------------
substantially all of the assets, property and business used in the operation of
Station WFUN-FM, Bethalto, Illinois.
"WKJS Acquisition" means the acquisition by the Borrower of all or
----------------
substantially all of the assets, property and business used in the operation of
Station WKJS-FM, Crewe, Virginia.
"XXXX Acquisition" means the acquisition by the Borrower of all or
----------------
substantially all of the assets, property and business used in the operation of
Stations XXXX-FM and WERE-AM, Cleveland, Ohio.
"WSOJ Acquisition" means the acquisition by the Borrower of all or
----------------
substantially all of the assets, property and business used in the operation of
Station WSOJ-FM, Petersburg, Virginia.
1.2 Other Definitional Provisions.
-----------------------------
(a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the same defined meanings when used in the Notes or other
Loan Documents.
(b) As used in any Loan Document, accounting terms relating to the
Borrower and its Subsidiaries not defined in Section 1.1 and accounting terms
-----------
partly defined in Section 1.1, to the extent not defined, shall have the
-----------
respective meanings given to them under GAAP.
(c) The words "hereof", "herein", "hereto" and "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
34
(d) The meanings given to terms defined in any Loan Document shall be
equally applicable to both the singular and plural forms of such terms.
(e) Unless stipulated otherwise (i) all references in any of the Loan
Documents to "dollars", "money", "payments" or other similar financial or
monetary terms, are references to currency of the United States of America and
(ii all references to interest are to simple not compound interest.
(f) The headings and captions used in any of the Loan Documents are
for convenience only and shall not be deemed to limit, amplify or modify the
terms of the Loan Documents nor affect the meaning thereof.
(g) References in this Agreement or any other Loan Document to
knowledge by the Borrower or any Subsidiary of events or circumstances shall be
deemed to refer to events or circumstances of which any Responsible Officer has
actual knowledge or reasonably should have knowledge.
(h) References in this Agreement or any other Loan Document to
financial statements shall be deemed to include all related schedules and notes
thereto.
1.3 Computation of Time Periods. For purposes of computation of
---------------------------
periods of time hereunder, the word "from" means "from and including" and the
words "to" and "until" each mean "to but excluding".
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments. (a) Subject to and in reliance upon the terms,
-----------
conditions, representations and warranties contained in the Loan Documents, each
Lender severally agrees to make Loans under its Available Commitment to the
Borrower from time to time until the Termination Date ("Loans"), provided that
----- --------
in no event shall the Aggregate Outstandings of Credit of any Lender at any time
exceed such Lender's Commitment. Until the Termination Date, the Borrower may
use the Available Commitments by borrowing, prepaying the Loans in whole or in
part, and reborrowing, all in accordance with the terms and conditions hereof.
(b) The Loans may from time to time be (i) Eurodollar Loans, (ii) ABR
Loans or (iii) a combination thereof, as determined by the Borrower and notified
to the Administrative Agent in accordance with Sections 2.3 and 4.5, provided
------------ --- --------
that no Loan shall be made as a Eurodollar Loan after the day that is one month
prior to the Termination Date.
(c) In order to evidence the Loans, the Borrower will execute and
deliver to each Lender a promissory note substantially in the form of Exhibit H,
---------
with appropriate insertions as to payee, date and principal amount (each, as
amended, supplemented, replaced or otherwise modified from time to time, a
"Note"), payable to the order of each Lender and in a principal amount equal to
----
each such Lender's Commitment. Each Note shall (x) be dated the Effective Date
or the date of
35
any reissuance of such Note, (y) be stated to mature on the Termination Date and
(z) provide for the payment of interest in accordance with Section 4.1.
-----------
2.2 Intentionally Deleted.
---------------------
2.3 Procedure for Borrowing. Subject to the applicable terms and
-----------------------
conditions contained in Section 6 of this Agreement, the Borrower may borrow
---------
under the Commitments at any time prior to the Termination Date, on any Business
Day by delivery to the Administrative Agent of an irrevocable notice
substantially in the form of Exhibit I (a "Notice of Borrowing"). A Notice of
--------- -------------------
Borrowing must be received by the Administrative Agent prior to 10:00 A.M.,
Dallas, Texas time, (a) three Business Days prior to the requested Borrowing
Date, if all or any part of the requested Loans are to be initially Eurodollar
Loans, or (b) on the requested Borrowing Date. A Notice of Borrowing shall
specify (i) the amount to be borrowed, (ii) the requested Borrowing Date, (iii)
whether the borrowing is to be of Eurodollar Loans, ABR Loans or a combination
thereof and (iv) if the borrowing is to be entirely or partly of Eurodollar
Loans, the respective amounts of each Eurodollar Tranche and the respective
lengths of the initial Interest Periods therefor. Borrowings under the
Commitments shall be in an amount equal to (x) in the case of ABR Loans,
$500,000 or a whole multiple of $100,000 in excess thereof (or, if the then
available amount of the Commitments is less than $500,000, such lesser amount)
and (y) in the case of Eurodollar Loans, $1,000,000 or a whole multiple of
$100,000 in excess thereof. Upon receipt of any such Notice of Borrowing from
the Borrower, the Administrative Agent shall promptly notify each Lender
thereof. Each such Lender will make the amount of its pro rata share of each
applicable borrowing available to the Administrative Agent for the account of
the Borrower at the office of the Administrative Agent specified as the Funding
Office in Schedule 1.1A prior to noon, Dallas, Texas time, on the Borrowing Date
-------------
requested by the Borrower in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to the Borrower by the
Administrative Agent crediting the account of the Borrower as so directed by the
Borrower in a Notice of Borrowing with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent.
2.4 Repayment of Loans. (a) The Borrower hereby unconditionally
------------------
promises to pay to the Administrative Agent for the account of each Lender, (i)
the then unpaid principal amount of each Loan of such Lender on the Termination
Date (or such earlier date on which the Loans become due and payable pursuant to
Section 9) and (ii) the amounts specified in Section 4.2 on the dates specified
--------- -----------
in Section 4.2. The Borrower hereby further agrees to pay interest on the
-----------
unpaid principal amount of the Loans from time to time outstanding until payment
in full thereof at the rates per annum, and on the dates, set forth in Section
-------
4.1.
---
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
Section 11.6(g), and a subaccount therein for each Lender, in which shall be
---------------
recorded (i) the amount
36
of each Loan made hereunder the type thereof and each Interest Period, if any,
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender hereunder and
(iii) both the amount of any sum received by the Administrative Agent hereunder
from the Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 11.6(g) shall, to the extent permitted by
---------------
applicable law, be prima facie evidence of the existence and amounts of the
----- -----
obligations of the Borrower therein recorded; provided, however, that the
-------- -------
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, shall not in any manner affect the obligation of the Borrower
to repay (with applicable interest) the Loans made to the Borrower by such
Lender in accordance with the terms of this Agreement.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions hereof,
--------------
Issuing Lender, in reliance on the agreements of the other Lenders set forth in
Section 3.4(a), agrees to issue letters of credit ("Letters of Credit") for the
-------------- -----------------
account of the Borrower on any Business Day in such customary form as may be
approved from time to time by such Issuing Lender; provided that Issuing Lender
--------
shall not issue any Letter of Credit if, after giving effect to such issuance,
the L/C Obligations would exceed the lesser of (x) $5,000,000 or (y) the Total
Available Commitment at such time. Each Letter of Credit shall (i) be
denominated in Dollars and (ii) expire no later than the earlier of (x) the
Termination Date and (y) the date which is 12 months after its date of issuance.
(b) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the State of New
York.
(c) The Issuing Lender shall not at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
the Issuing Lender or any other Lender to exceed any limits imposed by, any
applicable Requirement of Law.
3.2 Procedure for Issuance of Letters of Credit. The Borrower may
-------------------------------------------
from time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender, at the office of the Issuing Lender specified
in Section 11.2, an application therefor, completed to the reasonable
------------
satisfaction of the Issuing Lender, and such other certificates, documents and
other papers and information as the Issuing Lender may reasonably request. Upon
receipt of any Application, the Issuing Lender will process such Application and
the certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall the
Issuing Lender be required to issue any Letter of Credit earlier than three
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed by the Issuing Lender and the Borrower. The Issuing
Lender shall furnish a copy of such Letter of Credit to the Borrower promptly
following the issuance thereof.
37
3.3 Fees, Commissions and Other Charges. (a) The Borrower shall pay
-----------------------------------
to the Issuing Lender, for the account of each Lender, a letter of credit fee
with respect to each Letter of Credit, for the period from and including the
date of issuance of such Letter of Credit to the date such Letter of Credit is
no longer outstanding, computed at a percentage rate per annum equal to the
Applicable Margin from time to time applicable to Loans bearing interest at the
Eurodollar Rate, calculated on the basis of a 360-day year, on the aggregate
average daily amount available to be drawn under such Letter of Credit for the
period as to which payment of such fee is made. Such letter of credit fee shall
be payable on each L/C Fee Payment Date occurring while a Letter of Credit
remains outstanding and on the date each Letter of Credit expires, is canceled
or is drawn upon. Such letter of credit fee once paid shall be nonrefundable.
(b) The Borrower shall pay to the Issuing Lender, a letter of credit
fee with respect to each Letter of Credit equal to 1/4 of 1% per annum on the
face amount of each such Letter of Credit, payable on each Interest Payment Date
(for an ABR Loan) to the Issuing Lender for its own account. Such fee once paid
shall be nonrefundable.
(c) In addition, the Borrower shall pay customary administrative,
issuance, amendment, payment and negotiation charges to the Issuing Lender for
its own account.
3.4 L/C Participations. (a) The Issuing Lender irrevocably agrees to
------------------
grant and hereby grants to each Lender, and, to induce the Issuing Lender to
issue Letters of Credit hereunder, each Lender irrevocably agrees to accept and
purchase and hereby accepts and purchases from the Issuing Lender, for such
Lender's own account and risk an undivided interest equal to such Lender's
Specified Percentage in the Issuing Lender's obligations and rights under each
Letter of Credit issued by the Issuing Lender and the amount of each draft paid
by the Issuing Lender thereunder. Each Lender unconditionally and irrevocably
agrees with the Issuing Lender that, if a draft is paid under any Letter of
Credit issued by the Issuing Lender for which the Issuing Lender is not
reimbursed in full by the Borrower in accordance with Section 3.5(a), such
--------------
Lender shall pay to the Issuing Lender upon demand at the office of the Issuing
Lender specified in Schedule 1.1A an amount equal to such Lender's Specified
-------------
Percentage of the amount of such draft, or any part thereof, which is not so
reimbursed.
(b) If any amount required to be paid by any Lender to the Issuing
Lender pursuant to this Section 3.4 in respect of any unreimbursed portion of
-----------
any payment made by the Issuing Lender under any Letter of Credit is paid to the
Issuing Lender within three Business Days after the date such payment is due,
such Lender shall pay to the Issuing Lender on demand an amount equal to the
product of (i) such amount, times (ii) the daily average Federal Funds Effective
-----
Rate during the period from and including the date such payment is required to
the date on which such payment is immediately available to the Issuing Lender,
times (iii) a fraction the numerator of which is the number of days that elapse
-----
during such period and the denominator of which is 360. If any such amount
required to be paid by any Lender pursuant to this Section 3.4 is not in fact
-----------
made available to the Issuing Lender by such Lender within three Business Days
after the date such payment is due, the Issuing Lender shall be entitled to
recover from such Lender, on demand, such amount with interest thereon
calculated from and including the date such payment is required to the date on
which such payment is immediately available to the Issuing Lender at a rate per
annum equal
38
to the ABR plus the Applicable Margin. A certificate of the Issuing
----
Lender submitted to any Lender with respect to any amounts owing under this
Section shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any Lender its pro rata share
--- ----
of such payment in accordance with this Section 3.4, the Issuing Lender receives
-----------
any payment related to such Letter of Credit (whether directly from the Borrower
or otherwise, including proceeds of Collateral applied thereto by the Issuing
Lender), or any payment of interest on account thereof, the Issuing Lender will,
if such payment is received prior to 11:00 A.M., Dallas, Texas time, on a
Business Day, distribute to such Lender its pro rata share thereof on the same
--- ----
Business Day or if received later than 11:00 A.M., Dallas, Texas time, on the
next succeeding Business Day; provided, however, that in the event that any such
-------- -------
payment received by the Issuing Lender shall be required to be returned by the
Issuing Lender, such Lender shall return to the Issuing Lender the portion
thereof previously distributed by the Issuing Lender to it.
(d) Notwithstanding anything to the contrary in this Agreement, each
Lender's obligation to make the Loans referred to in Section 3.5(b) and to
--------------
purchase and fund participating interests pursuant to Section 3.4(a) shall be
--------------
absolute and unconditional and shall not be affected by any circumstance,
including, without limitation, (i) any setoff, counterclaim, recoupment, defense
or other right which such Lender or the Borrower may have against the Issuing
Lender, the Borrower or any other Person for any reason whatsoever, (ii) the
occurrence or continuance of a Default or an Event of Default or the failure to
satisfy any of the other conditions specified in Section 6, (iii) any adverse
---------
change in the condition (financial or otherwise) of any Loan Party, (iv) any
breach of this Agreement or any other Loan Document by any Loan Party or any
Lender, or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing.
3.5 Reimbursement Obligation of the Borrower. (a) The Borrower
----------------------------------------
agrees to reimburse the Issuing Lender (it being understood that such
reimbursement shall be effected by means of a borrowing of Loans unless the
Administrative Agent shall determine in its sole discretion that such Loans may
not be made for such purpose as a result of a Default or Event of Default
pursuant to Section 9(f)), upon receipt of notice from the Issuing Lender of the
------------
date and amount of a draft presented under any Letter of Credit and paid by the
Issuing Lender, for the amount of (i) such draft so paid and (ii any taxes,
fees, charges or other costs or expenses incurred by the Issuing Lender in
connection with such payment. Each such payment shall be made to the Issuing
Lender, at the office of the Issuing Lender specified in Schedule 1.1A in
-------------
Dollars and in immediately available funds, on the date on which the Borrower
receives such notice, if received prior to 11:00 A.M., Dallas, Texas, time, on a
Business Day and otherwise on the next succeeding Business Day.
(b) Interest shall be payable on any and all amounts remaining unpaid
by the Borrower under this Section 3.5, (i) from the date the draft under the
-----------
affected Letter of Credit is paid by the Issuing Bank to the date on which the
Borrower is required to pay such amounts pursuant to paragraph (a) above at a
rate per annum equal to the ABR plus the Applicable Margin and (ii) thereafter
----
until payment in full at the rate which would be payable on any Loans which were
then overdue. Except as otherwise specified in Section 3.5(a), each drawing
--------------
under any Letter of Credit
39
shall constitute a request by the Borrower to the Administrative Agent for a
borrowing of Loans that are ABR Loans pursuant to Section 2.3 in the amount of
-----------
such drawing. The Borrowing Date with respect to such borrowing shall be the
date of payment of such drawing and the proceeds of such Loans shall be applied
by the Administrative Agent to reimburse the Issuing Lender for the amounts paid
under such Letter of Credit.
3.6 Obligations Absolute. Subject to the penultimate sentence of
--------------------
this Section 3.6, the Borrower's obligations under this Section 3 shall be
----------- ---------
absolute and unconditional under any and all circumstances and irrespective of
any set-off, counterclaim or defense to payment which the Borrower may have or
have had against the Issuing Lender, any Lender or any beneficiary of a Letter
of Credit. The Borrower also agrees with the Issuing Lender that the Issuing
Lender and the Lenders shall not be responsible for, and the Borrower's
Reimbursement Obligations under Section 3.5 shall not be affected by, among
-----------
other things, (i) the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or (ii) any dispute between or among the Borrower
and any beneficiary of any Letter of Credit or any other party to which such
Letter of Credit may be transferred or (iii) any claims whatsoever of the
Borrower against any beneficiary of such Letter of Credit or any such
transferee. So long as the Issuing Lender acts in accordance with the standards
of care specified in the Uniform Commercial Code of the State of New York, the
Issuing Lender and the Lenders shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit, except for
errors or omissions caused by such Person's gross negligence or willful
misconduct. The Borrower agrees that any action taken or omitted by the Issuing
Lender under or in connection with any Letter of Credit or the related drafts or
documents, if done in the absence of gross negligence or willful misconduct and
in accordance with the standards of care specified in the Uniform Commercial
Code of the State of New York, shall be binding on the Borrower and shall not
result in any liability of either the Issuing Lender or any Lender to the
Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for
-------------------------
payment under any Letter of Credit, the Issuing Lender shall promptly notify the
Borrower and the Lenders of the date and amount thereof. Subject to Section
-------
3.6, the responsibility of the Issuing Lender to the Borrower in connection with
---
any draft presented for payment under any Letter of Credit shall, in addition to
any payment obligation expressly provided for in such Letter of Credit, be
limited to determining that the documents (including each draft) delivered under
such Letter of Credit in connection with such presentment appear on their face
to be in conformity with such Letter of Credit.
3.8 Application. To the extent that any provision of any Application
-----------
related to any Letter of Credit is inconsistent with the provisions of this
Agreement, the provisions of this Agreement shall apply.
40
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS
AND LETTERS OF CREDIT
4.1 Interest Rates and Payment Dates. (a) Subject to Section 11.15,
-------------------------------- -------------
each Eurodollar Loan shall bear interest for each day during each Interest
Period with respect thereto at a rate per annum equal to the Eurodollar Rate
plus the Applicable Margin determined for such day.
----
(b) Subject to Section 11.15, each ABR Loan shall bear interest for
-------------
each day that it is outstanding at a rate per annum equal to the ABR plus the
----
Applicable Margin for such day.
(c) (i) Subject to Section 11.15, after the occurrence and during the
-------------
continuance of an Event of Default under Section 9(a) of this Agreement, all
------------
Loans and Reimbursement Obligations shall bear interest at a rate per annum
which is equal to (x) in the case of the Loans, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this Section 4.1 plus
----------- ----
2% or (y) in the case of Reimbursement Obligations, at a rate per annum equal to
the ABR plus the Applicable Margin plus 2% and (ii) if all or a portion of any
---- ----
interest payable on any Loan or Reimbursement Obligation or any commitment fee,
letter of credit fee or other amount payable hereunder shall not be paid when
due (whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum equal to the ABR plus the
----
Applicable Margin plus 2%, in each case, with respect to clauses (i) and (ii)
----
above, from the date of such non-payment until such amount is paid in full (as
well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this Section
--------
shall be payable from time to time on demand.
4.2 Optional and Mandatory Commitment Reductions and Prepayments.
------------------------------------------------------------
(a) The Borrower may at any time and from time to time prepay the Loans, in
whole or in part, without premium or penalty (it being understood that amounts
payable pursuant to Section 4.11 do not constitute premium or penalty), upon at
------------
least three Business Days' irrevocable notice to the Administrative Agent (in
the case of Eurodollar Loans) or at least one Business Day's irrevocable notice
to the Administrative Agent (in the case of ABR Loans), specifying the date and
amount of prepayment and whether the prepayment is of Eurodollar Loans, ABR
Loans or a combination thereof, and, in each case if a combination thereof, the
principal amount allocable to each. Upon the receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein, together with (if a Eurodollar Loan is prepaid other
than at the end of the Interest Period applicable thereto) any amounts payable
pursuant to Section 4.11. Partial prepayments of Loans shall be in an aggregate
------------
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof
(unless the entire balance thereof is being prepaid).
(b) The Borrower shall have the right, upon not less than three
Business Days' notice to the Administrative Agent (which will promptly notify
the Lenders thereof), to terminate the Commitments or, from time to time, to
reduce the amount of the Commitments; provided that no such termination or
--------
reduction of the Commitments shall be permitted if, after giving effect thereto
41
and to any prepayments of the Loans made on the effective date thereof, (x) the
sum of the Aggregate Outstandings of Credit of all Lenders would exceed the
Total Available Commitment then in effect. Any such reduction in the Commitments
shall be in a minimum amount of $1,000,000 or a whole multiple of $500,000 in
excess thereof (unless the Aggregate Commitment is being terminated) and shall
reduce permanently the Commitments then in effect.
(c) If at any time the sum of the Aggregate Outstandings of Credit of
all Lenders exceeds the Total Available Commitment then in effect, the Borrower
shall, without notice or demand, immediately repay the Loans in an aggregate
principal amount equal to such excess, together with interest accrued to the
date of such payment or repayment and any amounts payable under Section 4.11. To
------------
the extent that, after giving effect to any prepayment of the Loans required by
the preceding sentence, the sum of the L/C Obligations still exceeds the Total
Available Commitment (the amount of such excess being herein referred to as the
"Overfunded Amount"), the Borrower shall, without notice or demand, immediately
-----------------
pay an amount equal to such Overfunded Amount to the Administrative Agent for
deposit in the Cash Collateral Account. Any amounts deposited in the Cash
Collateral Account shall be invested in Cash Equivalents having a one day
maturity or such other Cash Equivalents as shall be acceptable to the
Administrative Agent and the Borrower.
(d) Concurrently with the consummation of any Disposition or the
receipt of Net Proceeds from any Recovery Event by the Borrower or any
Restricted Subsidiary, the Borrower shall cause the Net Proceeds therefrom to be
promptly paid to the Administrative Agent, in immediately available funds, for
deposit in an account maintained by the Administrative Agent for the benefit of
the Lenders (the "Cash Collateral Account"), which Net Proceeds shall be held by
-----------------------
the Administrative Agent in such Cash Collateral Account as security for the
Obligations, in accordance with Section 4.2(h), and shall be distributed by the
--------------
Administrative Agent pursuant to this Section 4.2(d) and Section 4.2(i). In the
-------------- --------------
event that the Borrower and/or a Restricted Subsidiary (i) in the case of a
Recovery Event, uses the Net Proceeds therefrom to restore or replace assets in
respect of which a Recovery Event has occurred within 360 days after the date of
receipt of the Net Proceeds from such Recovery Event (the "Recovery Reinvestment
---------------------
Deadline"), or (ii) in the case of a Disposition, subject to the provisions of
--------
Sections 8.7 and 8.8, (A) enters into a binding contract for the reinvestment of
------------ ---
such Net Proceeds in Broadcast Assets within 270 days after the date of such
Disposition (the "Contract Deadline Date") and (B) actually reinvests such Net
----------------------
Proceeds in Broadcast Assets within 360 days after the date of such Disposition
(the "Reinvestment Deadline Date"), then the Administrative Agent shall release
--------------------------
from the Cash Collateral Account (concurrently with the consummation of the
applicable reinvestment transaction) that portion of such Net Proceeds which are
to be used by the Borrower for such reinvestment transaction, provided such
--------
reinvestment occurs on or before the Recovery Reinvestment Deadline or the
Reinvestment Deadline Date, as applicable. In the event that either (i) in the
case of a Recovery Event, the Borrower and/or a Restricted Subsidiary does not
restore or replace assets in respect of which a Recovery Event has occurred on
or before the Recovery Reinvestment Deadline or (ii) in the case of a
Disposition, the Borrower and/or a Restricted Subsidiary (A) does not enter into
a binding contract for the reinvestment of such Net Proceeds in Broadcast Assets
on or before the Contract Deadline Date or (B) does not actually reinvest such
Net Proceeds on or before the Reinvestment Deadline Date (any such Net Proceeds,
or portion thereof, not so used to restore or replace assets by the Recovery
Reinvestment Deadline,
42
not subject to a binding contract on the Contract Deadline Date or not so
reinvested on the Reinvestment Deadline Date being herein referred to as "Excess
------
Proceeds"), then (x) the Administrative Agent shall, on the Recovery
--------
Reinvestment Deadline, Contract Deadline Date or the Reinvestment Deadline Date,
as the case may be, apply all Excess Proceeds held in the Cash Collateral
Account toward the repayment of the Loans, together with interest accrued to the
date of such payment and any amounts payable under Section 4.11 and (y) the then
------------
Aggregate Commitment shall be permanently reduced on such applicable date by an
amount equal to the aggregate amount of such Excess Proceeds. In addition, to
the extent that, after giving effect to any repayment of the Loans and reduction
of the Aggregate Commitment required by the preceding sentence, the sum of the
Aggregate Outstandings of Credit of all Lenders exceeds the Total Available
Commitment (as reduced), then (in addition to the Borrower's obligations under
Section 4.2(c) above) any amounts remaining of such Excess Proceeds shall
--------------
continue to be held by the Administrative Agent in the Cash Collateral Account.
Notwithstanding the foregoing provisions of this Section 4.2(d), the Borrower
--------------
and the Restricted Subsidiaries shall not be required to apply any Net Proceeds
in accordance with this Section 4.2(d) unless or until such Net Proceeds either
singularly or when aggregated with all other Net Proceeds from all Dispositions
and Recovery Events exceeds $1,000,000. Notwithstanding anything to the contrary
set forth herein, in the event (i) a Default or Event of Default exists and is
continuing or (ii) the aggregate Excess Proceeds realized since May 19, 1997
equals or exceeds $4,750,000, then (A) any and all Net Proceeds received on or
after such events by the Borrower or any Restricted Subsidiary shall be
immediately paid to the Administrative Agent for deposit in the Cash Collateral
Account and the Administrative Agent shall apply all such Net Proceeds toward
the repayment of the Loans and to cash collateralize the L/C Obligations as
aforesaid and (B) the then Aggregate Commitment shall be permanently reduced by
an amount equal to the amount of all such Net Proceeds received on or after such
events.
(e) In the event that the Borrower or any Restricted Subsidiary issues
or sells any Equity Interests of the Borrower or a Restricted Subsidiary (other
than Disqualified Stock, the New Preferred Stock or Senior Preferred Stock
issued in respect of the Allied Warrant), then no later than the third Business
Day following the date of receipt of the cash proceeds from any such issuance or
sale of such Equity Interests (other than proceeds from the issuance or sale of
such Equity Interests to the Borrower or any Wholly Owned Restricted Subsidiary
of the Borrower by any Person that was a Restricted Subsidiary of the Borrower
immediately prior to such issuance), the Borrower shall repay the Loans in an
amount equal to the cash proceeds of such Equity Interests, net of underwriting
discounts and commissions and other reasonable costs associated therewith (the
"Equity Proceeds"); provided that the Borrower shall not be required to repay
--------------- --------
the Loans under this Section 4.2(e) with any such Equity Proceeds that (i) are
--------------
reinvested in Permitted Acquisitions or permitted Capital Expenditures by the
Borrower or a Restricted Subsidiary within 30 days of the receipt of such Equity
Proceeds or (ii) are received by the Borrower from the initial Public Equity
Offering.
(f) In the event that any Loan Party creates, incurs, acquires or
issues any Indebtedness or Disqualified Stock other than Indebtedness permitted
under Section 8.2, then no later than the third Business Day following the date
-----------
of receipt of the proceeds (the "Debt Proceeds") from the creation, incurrence,
-------------
acquisition or issuance of any such Indebtedness or Disqualified Stock, the
Borrower shall (i) repay the Loans in an amount equal to the amount of such Debt
Proceeds and (ii) the then Aggregate Commitment shall be permanently reduced by
the amount of
43
such Debt Proceeds. To the extent that, after giving effect to any repayment of
the Loans and reduction of the Aggregate Commitment required by the preceding
sentence, the sum of the Aggregate Outstandings of Credit of all Lenders exceeds
the Total Available Commitment (as reduced), then (in addition to the Borrower's
obligations under Section 4.2(c) above) any amounts remaining of such Debt
Proceeds shall be deposited in the Cash Collateral Account.
(g) In the case of any reduction of the Aggregate Commitment, the
Borrower shall, if applicable, comply with the requirements of Section 4.2(c).
--------------
The application of any prepayment to the Loans pursuant to this Section 4.2
-----------
shall be made first to ABR Loans and second to Eurodollar Loans. Each repayment
of the Loans under this Section 4.2 shall be accompanied by accrued interest to
-----------
the date of such repayment on the amount repaid and any amounts payable under
Section 4.11.
------------
(h) As security for the Obligations, the Borrower hereby grants,
conveys, assigns, pledges, sets over and transfers to the Administrative Agent,
for the benefit of the Lenders, and creates in the Administrative Agent's favor
for the benefit of the Lenders, a security interest in, all money (including
interest), instruments and securities at any time held in or acquired in
connection with the Cash Collateral Account together with all proceeds thereof.
The Cash Collateral Account shall be under the sole dominion and control of the
Administrative Agent, and the Borrower shall not have any right to withdraw or
cause the Administrative Agent to withdraw any funds deposited in the Cash
Collateral Account except as provided in Sections 4.2(d) and 4.2(i). At any
--------------- ------
time and from time to time, upon the Administrative Agent's request, the
Borrower promptly shall execute and deliver any and all such further agreements,
documents, instruments and certificates, including financing statements, as may
be necessary, appropriate or desirable in the Administrative Agent's reasonable
judgment to obtain the full benefits (including perfection and priority) of the
security interest created or intended to be created by this Section 4.2(h) and
--------------
of the rights and powers herein granted. The Borrower shall not create or
suffer to exist any Lien on any amounts or investments held in the Cash
Collateral Account other than the Lien granted under this Section 4.2(h).
--------------
(i) The Administrative Agent shall, after the date on which the
Aggregate Commitment shall have been terminated, apply any proceeds held in the
Cash Collateral Account first to pay any unpaid Obligations then outstanding
-----
hereunder in such order as the Administrative Agent may determine and then to
----
refund any remaining amount to the Borrower.
4.3 Commitment Fees, etc. (a) The Borrower agrees to pay to the
--------------------
Administrative Agent for the account of each Lender, a commitment fee, on the
average daily amount of the Available Commitment of such Lender computed at a
rate per annum based on the Leverage Ratio in effect for the fiscal quarter (for
which financial statements are available) preceding the payment date determined
as follows:
44
Leverage Ratio Commitment Fee
-------------- --------------
Greater than 5.00 to 1.00 0.500%
Less than or equal to 5.00 to 1.00 but
greater than 4.00 to 1.00 0.375%
Less than or equal to 4.00 to 1.00 0.250%
For purposes of calculating the commitment fee due hereunder, the Leverage Ratio
shall be determined as at the end of each of the first three quarterly periods
of each fiscal year of the Borrower and as at the end of each fiscal year of the
Borrower, based on the relevant financial statements delivered pursuant to
Section 7.1(a) or (b) and the Compliance Certificate delivered pursuant to
Section 7.2(b); changes in the Leverage Ratio shall become effective on the date
--------------
which is the earlier of (i) two Business Days after the date the Administrative
Agent receives such financial statements and the corresponding Compliance
Certificate and (ii) the 45th day after the end of each of the first three
quarterly periods of each fiscal year or the 90th day after the end of each
fiscal year, as the case may be, and shall remain in effect until the next
change to be effected pursuant to this Section 4.3; provided, that (a) until the
----------- --------
first such financial statements and Compliance Certificate are delivered after
the Effective Date, the commitment fee shall be determined by reference to the
Leverage Ratio set forth in the Compliance Certificate delivered to the
Administrative Agent pursuant to Section 6.2(h), and (b) if any financial
--------------
statements or the Compliance Certificates referred to above are not delivered
within the time periods specified above, then, for the period from and including
the date on which such financial statements and Compliance Certificate are
required to be delivered until the date on which such financial statements and
Compliance Certificate are delivered, the commitment fee as at the end of the
fiscal period that would have been covered thereby shall be deemed to be the
commitment fee which would be applicable when the Leverage Ratio is greater than
6.50 to 1.00. Notwithstanding anything to the contrary contained herein, during
the fiscal quarter in which the Borrower closes its initial Public Equity
Offering, the Borrower shall have the right to resubmit to the Administrative
Agent and each Lender a new Compliance Certificate which recalculates the
"Indebtedness" component of the Leverage Ratio as of such date and, to the
extent there is a change in the Leverage Ratio reflected therein, a new
commitment fee for the then occurring fiscal quarter shall begin to accrue,
effective two Business Days after the date the Administrative Agent receives
such new Compliance Certificate and shall remain in effect until the next change
to be effected pursuant to this definition.
Such commitment fee shall be (i) payable quarterly in arrears on the last
Business Day of each March, June, September and December and on the Termination
Date and (ii) fully earned and non-refundable upon payment thereof.
(b) The Borrower shall pay (without duplication of any fee payable
under Section 4.3(a)) to the Administrative Agent the fees provided for in the
--------------
Fee Letter on the dates and in the amounts provided for therein.
45
4.4 Computation of Interest and Fees. (a) Interest based on the
--------------------------------
Eurodollar Rate and fees shall be calculated on the basis of a 360-day year for
the actual days elapsed; and interest based on the ABR shall be calculated on
the basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed. The Administrative Agent shall as soon as practicable notify the
Borrower and the Lenders of each determination of a Eurodollar Rate. Any change
in the interest rate on a Loan resulting from a change in the ABR or the
Eurocurrency Reserve Requirements shall become effective as of the opening of
business on the day on which such change becomes effective. The Administrative
Agent shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing in reasonable detail the calculations used by the
Administrative Agent in determining any interest rate pursuant to Section 4.1
-----------
(a).
---
(c) The fees described in this Agreement and the Fee Letter represent
compensation for services rendered and to be rendered separate and apart from
the lending of money or the provision of credit and do not constitute
compensation for the use, detention, or forbearance of money, and the obligation
of the Borrower to pay each fee described herein shall be in addition to, and
not in lieu of, the obligation of the Borrower to pay interest, other fees
described in the Loan Documents, and expenses otherwise described in the Loan
Documents. Fees shall be payable when due in Dollars and in immediately
available funds. All such fees shall be non-refundable.
4.5 Conversion and Continuation Options. (a) The Borrower may elect
-----------------------------------
from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent an irrevocable notice substantially in the form of Exhibit
-------
J (a "Notice of Conversion/Continuation"), by 10:00 A.M. Dallas, Texas time at
- ---------------------------------
least one Business Day prior to such election, provided that any such conversion
--------
of Eurodollar Loans may only be made on the last day of an Interest Period with
respect thereto. The Borrower may elect from time to time to convert ABR Loans
to Eurodollar Loans or to continue Eurodollar Loans as Eurodollar Loans by
giving the Administrative Agent a Notice of Conversion/Continuation by 10:00
A.M. Dallas, Texas, time at least three Business Days' prior to such election.
Any such Notice of Conversion/Continuation to Eurodollar Loans shall specify the
length of the initial Interest Period or Interest Periods therefor. Upon
receipt of any such Notice of Conversion/Continuation the Administrative Agent
shall promptly notify each Lender thereof. All or any part of outstanding
Eurodollar Loans and ABR Loans may be converted as provided herein, provided
--------
that (i) no Loan may be converted into a Eurodollar Loan when any Event of
Default has occurred and is continuing and (ii) no Loan may be converted into a
Eurodollar Loan if the Interest Period selected therefor would expire after the
Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower giving
irrevocable notice to the Administrative Agent, of the length of the next
Interest Period to be applicable to such Loans, determined in accordance with
the applicable provisions of the term "Interest Period" set forth in Section
-------
1.1, provided that no Eurodollar Loan may be continued as such (i) when any
--- --------
Event of
46
Default has occurred and is continuing or (ii) after the date that is
one month prior to the Termination Date, and provided, further, that if the
-------- -------
Borrower shall fail to give any required notice as described above in this
paragraph or if such continuation is not permitted pursuant to the preceding
proviso such Loans shall be automatically converted to ABR Loans on the last day
of such then expiring Interest Period. Upon receipt of any such notice of
continuation pursuant to this Section 4.5(b), the Administrative Agent shall
--------------
promptly notify each Lender thereof.
4.6 Minimum Amounts of Eurodollar Tranches. All borrowings,
--------------------------------------
conversions, continuations and payments of Loans hereunder and all selections of
Interest Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal amount
of the Eurodollar Loans comprising (i) each Eurodollar Tranche of Loans shall be
equal to $1,000,000 or a whole multiple of $100,000 in excess thereof. In no
event shall there be more than six Eurodollar Tranches outstanding at any time.
4.7 Inability to Determine Interest Rate. If prior to the first day
------------------------------------
of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be made in good faith and shall be conclusive and
binding upon the Borrower absent manifest error) that, by reason of
circumstances affecting the relevant market, adequate and reasonable means
do not exist for ascertaining the Eurodollar Rate for such Interest Period;
or
(b) the Administrative Agent shall have received notice from the
Majority Lenders that the Eurodollar Rate determined or to be determined
for such Interest Period will not adequately and fairly reflect the cost to
such Lenders (as conclusively certified by such Lenders) of making,
maintaining or converting that portion of the outstanding principal balance
of their affected Loans during such Interest Period,
the Administrative Agent shall give facsimile notice thereof to the Borrower and
the Lenders as soon as practicable thereafter. If such notice is given (x) any
Eurodollar Loans requested to be made on the first day of such Interest Period
shall be made as ABR Loans, (y) any Loans that were to have been converted on
the first day of such Interest Period to Eurodollar Loans shall be continued as
ABR Loans and (z) any outstanding Eurodollar Loans shall be converted, on the
first day of such Interest Period, to ABR Loans. Until such notice has been
withdrawn by the Administrative Agent or the Majority Lenders, as the case may
be, no further Eurodollar Loans shall be made or continued as such, nor shall
the Borrower have the right to convert Loans to Eurodollar Loans.
4.8 Pro Rata Treatment and Payments. (a) Each borrowing of Loans
-------------------------------
hereunder shall be made, each payment by the Borrower on account of any
commitment fee hereunder shall be allocated by the Administrative Agent, and any
reduction of the Commitments shall be allocated by the Administrative Agent, pro
---
rata according to the respective Specified Percentages of the Lenders. Each
----
payment (including each prepayment) by the Borrower on account of principal of
and interest on, or commitment fees related to, the Loans or Reimbursement
Obligations shall be allocated by the Administrative Agent pro rata according to
--- ----
the respective Specified Percentages of
47
such Loans and Reimbursement Obligations then held by the Lenders. All payments
(including prepayments) to be made by the Borrower hereunder and under any
Notes, whether on account of principal, interest, fees, Reimbursement
Obligations or otherwise, shall be made without set-off or counterclaim and
shall be made prior to noon, Dallas, Texas time, on the due date thereof to the
Administrative Agent, for the account of the Lenders, at the Administrative
Agent's office specified in Section 11.2, in Dollars and in immediately
------------
available funds. Payments received by the Administrative Agent after such time
shall be deemed to have been received on the next Business Day. If any payment
hereunder becomes due and payable on a day other than a Business Day, the
maturity of such payment shall be extended to the next succeeding Business Day,
(and, with respect to payments of principal, interest thereon shall be payable
at the then applicable rate during such extension) unless, with respect to
payments of Eurodollar Loans only, the result of such extension would be to
extend such payment into another calendar month, in which event such payment
shall be made on the immediately preceding Business Day.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available to
the Administrative Agent. A certificate of the Administrative Agent submitted
to any Lender with respect to any amounts owing under this Section 4.8 shall be
-----------
conclusive in the absence of manifest error. If such Lender's share of such
borrowing is not made available to the Administrative Agent by such Lender
within three Business Days of such Borrowing Date, the Administrative Agent
shall notify the Borrower of the failure of such Lender to make such amount
available to the Administrative Agent and the Administrative Agent shall also be
entitled to recover, on demand from the Borrower, such amount with interest
thereon at a rate per annum equal to the ABR plus the Applicable Margin in
----
effect on the Borrowing Date.
4.9 Requirements of Law. (a) If the adoption of or any change in
-------------------
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the Initial Effective Date:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any Note or any
Eurodollar Loan made by it, or change the basis of taxation of payments to
such Lender in respect thereof (except for Non-Excluded Taxes covered by
Section 4.10, net income taxes and franchise taxes (imposed in lieu of net
------------
income taxes);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities
48
in or for the account of, advances, loans or other extensions of credit by,
or any other acquisition of funds by, any office of such Lender which is
not otherwise included in the determination of the Eurodollar Rate; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, within five Business Days
following receipt by the Borrower of notice from such Lender, through the
Administrative Agent, in accordance herewith, the Borrower shall pay such Lender
such additional amount or amounts as will compensate such Lender for such
increased cost or reduced amount receivable.
(b) If any Lender shall have determined in good faith that the
adoption of or any change in any Requirement of Law regarding capital adequacy
or in the interpretation or application thereof or compliance by such Lender or
any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the Initial Effective Date shall have the effect of
reducing the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount reasonably deemed by
such Lender to be material, then from time to time, the Borrower shall promptly
pay to such Lender such additional amount or amounts as will compensate such
Lender for such reduction.
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this Section 4.9, it shall promptly deliver a certificate to the
-----------
Borrower (with a copy to the Administrative Agent), setting forth in reasonable
detail an explanation of the basis for requesting such compensation. Such
certificate as to any additional amounts payable pursuant to this Section 4.9
-----------
submitted by such Lender to the Borrower (with a copy to the Administrative
Agent) shall be conclusive in the absence of manifest error provided such
determinations are made on a reasonable basis. The Borrower shall pay each
Lender the amount shown as due on any such certificate delivered by it within 15
days after the Borrower's receipt thereof. The agreements in this Section 4.9
-----------
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder.
4.10 Taxes. (a) All payments made by the Borrower under this
-----
Agreement and any Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding (i) net income taxes; (ii) franchise and doing
business taxes imposed on the Administrative Agent or any Lender as a result of
a present or former connection between the Administrative Agent or such Lender
and the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other
49
than any such connection arising solely from the Administrative Agent or such
Lender having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement or any Note); (iii) any Taxes,
levies, imposts, deductions, charges or withholdings that are in effect and that
would apply to a payment to such Lender as of the Initial Effective Date; and
(iv) if any Person acquires any interest in this Agreement or any Note pursuant
to the provisions hereof, including without limitation a participation (whether
or not by operation of law), or a foreign Lender changes the office in which the
Loan is made, accounted for or booked (any such Person or such foreign Lender in
that event being referred to as a "Tax Transferee"), any Taxes, levies, imposts,
--------------
deductions, charges or withholdings to the extent that they are in effect and
would apply to a payment to such Tax Transferee as of the date of the
acquisition of such interest or change in office, as the case may be. If any
such non-excluded taxes, levies, imposts, duties, charges, fees deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
------------------
payable to the Administrative Agent or any Lender hereunder or under any Note,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Borrower shall not be required to
-------- -------
increase any such amounts payable to any Non-U.S. Lender if such Lender fails to
comply with the requirements of paragraph (b) of this Section. Whenever any Non-
Excluded Taxes are payable by the Borrower, as promptly as possible thereafter
the Borrower shall send to the Administrative Agent for its own account or for
the account of such Lender, as the case may be, a certified copy of an original
official receipt received by the Borrower showing payment thereof. If, when the
Borrower is required by this Section 4.10(a) to pay any Non-Excluded Taxes, the
---------------
Borrower fails to pay such Non-Excluded Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts or
other required documentary evidence, the Borrower shall indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure.
(b) Each Lender (or Transferee) that is not a citizen or resident of
the United States of America, a corporation, partnership or other entity created
or organized in or under the laws of the United States of America, or any estate
or trust that is subject to federal income taxation regardless of the source of
its income (a "Non-U.S. Lender") shall deliver to the Borrower and the
---------------
Administrative Agent (or, in the case of a Participant, to the Lender from which
the related participation shall have been purchased) two copies of either U.S.
Internal Revenue Service Form 1001 or Form 4224, or, in the case of a Non-U.S.
Lender claiming exemption from U.S. federal withholding tax under Section 871(h)
or 881(c) of the Code with respect to payments of "portfolio interest", a Form
W-8, or any subsequent versions thereof or successors thereto (and, if such Non-
U.S. Lender delivers a Form W-8, an annual certificate representing that such
Non-U.S. Lender (i) is not a "bank" for purposes of Section 881(c) of the Code
(and is not subject to regulatory or other legal requirements as a bank in any
jurisdiction, and has not been treated as a bank in any filing with or
submission made to any Governmental Authority or rating agency), (ii) is not a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code)
of the Borrower and (iii) is not a controlled foreign corporation related to the
Borrower (within the meaning of Section 864(d)(4) of the Code)), properly
completed and duly executed by such Non-U.S. Lender claiming complete exemption
(or, in the case of a Non-U.S. Lender entitled to a reduced treaty rate, a
partial exemption)
50
from, U.S. federal withholding tax on all payments by the Borrower under this
Agreement and the other Loan Documents, along with such other additional forms
as the Borrower, the Administrative Agent (or, in the case of a Participant, the
Lender from which the related participation shall have been purchased) may
reasonably request to establish the availability of such exemption. Such forms
shall be delivered by each Non-U.S. Lender on or before the date it becomes a
party to this Agreement (or, in the case of any Participant, on or before the
date such Participant purchases the related participation). In addition, each
Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S. Lender. Each Non-
U.S. Lender shall promptly notify the Borrower at any time it determines that it
is no longer in a position to provide any previously delivered certificate to
the Borrower (or any other form of certification adopted by the U.S. taxing
authorities for such purpose). Notwithstanding any other provision of Section
-------
4.10, a Non-U.S. Lender shall not be required to deliver any form pursuant to
----
this Section 4.10(b) that such Non-U.S. Lender is not legally able to deliver,
--------------
it being understood and agreed that, in the event that a Non-U.S. Lender fails
to deliver any forms otherwise required to be delivered pursuant to this Section
-------
4.10(b), or notifies the Borrower that any previously delivered certificate is
------
no longer in force, the Borrower shall withhold such amounts as the Borrower
shall reasonably determine are required by law and shall not be required to make
any additional payment with respect thereto to the Non-U.S. Lender, unless such
failure to deliver or notify is a result of change in law subsequent to the
Initial Effective Date.
(c) If a Lender (or Transferee) or the Administrative Agent shall
become aware that it is entitled to receive a refund in respect of Non-Excluded
Taxes paid by the Borrower, or as to which it has been indemnified by the
Borrower, which refund in the good faith judgment of such Lender (or Transferee)
is allocable to such payment made pursuant to this Section 4.10, it shall
------------
promptly notify the Borrower of the availability of such refund and shall,
within 30 days after receipt of a request by the Borrower, apply for such
refund. If any Lender (or Transferee) or the Administrative Agent receives a
refund in respect of any Non-Excluded Taxes paid by the Borrower, or as to which
it has been indemnified by the Borrower, it shall promptly notify the Borrower
of such refund and shall, within 15 days after receipt, repay such refund to the
Borrower. The agreements in this Section 4.10 shall survive the termination of
------------
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
4.1 INDEMNITY. THE BORROWER AGREES TO INDEMNIFY EACH LENDER AND TO
---------
HOLD EACH LENDER HARMLESS FROM ANY LOSS OR EXPENSE WHICH SUCH LENDER MAY SUSTAIN
OR INCUR AS A CONSEQUENCE OF (A) DEFAULT BY THE BORROWER IN MAKING A BORROWING
OF, CONVERSION INTO OR CONTINUATION OF EURODOLLAR LOANS AFTER THE BORROWER HAS
GIVEN A NOTICE REQUESTING THE SAME IN ACCORDANCE WITH THE PROVISIONS OF THIS
AGREEMENT, (B) DEFAULT BY THE BORROWER IN MAKING ANY PREPAYMENT OF EURODOLLAR
LOANS AFTER THE BORROWER HAS GIVEN A NOTICE THEREOF IN ACCORDANCE WITH THE
PROVISIONS OF THIS AGREEMENT OR (C) THE MAKING OF A PREPAYMENT OF EURODOLLAR
LOANS ON A DAY WHICH IS NOT THE LAST DAY OF AN INTEREST PERIOD WITH RESPECT
THERETO. SUCH INDEMNIFICATION MAY INCLUDE AN AMOUNT EQUAL TO THE EXCESS, IF
ANY, OF (i) THE AMOUNT OF INTEREST WHICH
51
WOULD HAVE ACCRUED ON THE AMOUNT SO PREPAID, OR NOT SO BORROWED, CONVERTED OR
CONTINUED, FOR THE PERIOD FROM THE DATE OF SUCH PREPAYMENT OR OF SUCH FAILURE TO
BORROW, CONVERT OR CONTINUE TO, BUT NOT INCLUDING, THE LAST DAY OF SUCH INTEREST
PERIOD (OR, IN THE CASE OF A FAILURE TO BORROW, CONVERT OR CONTINUE, THE
INTEREST PERIOD THAT WOULD HAVE COMMENCED ON THE DATE OF SUCH FAILURE) IN EACH
CASE AT THE APPLICABLE RATE OF INTEREST FOR SUCH LOANS PROVIDED FOR HEREIN OVER
(ii) THE AMOUNT OF INTEREST (AS REASONABLY DETERMINED BY SUCH LENDER) WHICH
WOULD HAVE ACCRUED TO SUCH BANK ON SUCH AMOUNT BY PLACING SUCH AMOUNT ON DEPOSIT
FOR A COMPARABLE PERIOD WITH LEADING BANKS IN THE INTERBANK EURODOLLAR MARKET.
THIS COVENANT SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT AND THE PAYMENT OF
THE LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER.
4.12 Change of Lending Office. Each Lender agrees that if it makes
------------------------
any demand for payment under Section 4.9 or 4.10(a), it will use reasonable
----------- -------
efforts (consistent with its internal policy and legal and regulatory
restrictions and so long as such efforts would not be disadvantageous to it, as
determined in its sole discretion) to designate a different lending office if
the making of such a designation would reduce or obviate the need for the
Borrower to make payments under Sections 4.9 or 4.10(a) or would eliminate or
------------ -------
reduce the effect of any adoption or change described in Section 4.9.
-----------
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans and to issue Letters of Credit, the Borrower
hereby represents and warrants to the Administrative Agent and each Lender that:
5.1 Financial Condition. (a) The consolidated balance sheet of the
-------------------
Borrower and the Restricted Subsidiaries at December 31, 1998, and the related
consolidated statements of income and of cash flows for the fiscal year ended on
such date, reported on by Xxxxxx Xxxxxxxx L.L.P., copies of which have
heretofore been furnished to each Lender, present fairly in all material
respects the consolidated financial condition of the Borrower and the Restricted
Subsidiaries, taken as a whole, as at such date, and the consolidated results of
their operations and their consolidated cash flows for the fiscal year then
ended. All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by such accountants and as
disclosed therein and except for interim financial statements, which are subject
to normal year-end adjustments and lack footnotes). Except as set forth in
Schedule 5.1 and except for the Atlanta Acquisition and the Dogwood Acquisition,
------------
during the period from December 31, 1998, to and including the Effective Date
there has been no sale, transfer or other disposition by the Borrower or any of
the Restricted Subsidiaries of any material part of its business, assets or
property and no purchase or other acquisition of any business, assets or
property (including any Equity Interests of any other Person) material in
relation
52
to the consolidated financial condition of the Borrower and the Restricted
Subsidiaries at December 31, 1998
(b) The financial statements of the Borrower and the Restricted
Subsidiaries and other information most recently delivered under Sections 7.1(a)
---------------
and (b) were prepared in accordance with GAAP and present fairly in all material
---
respects the consolidated financial condition, results of operations, and cash
flows of the Borrower and the Restricted Subsidiaries, taken as a whole, as of,
and for the portion of the fiscal year ending on the date or dates thereof
(subject in the case of interim statements only to normal year-end audit
adjustments and the absence of footnotes).
(c) (i) The pro forma financial information, Budgets and projections
attached hereto as Schedule 5.1(c) furnished to the Administrative Agent by or
---------------
on behalf of the Borrower in connection with this Agreement, the Atlanta
Acquisition, the Dogwood Acquisition and the transactions contemplated hereby
and thereby and (ii) all pro forma financial information, Budgets and
projections furnished to the Administrative Agent or any Lender in connection
with or pursuant to this Agreement or any other Loan Document after the date of
this Agreement and on or prior to the date on which this representation and
warranty is made or deemed made, were in each case prepared and furnished to the
Administrative Agent or such Lender in good faith and were based on estimates
and assumptions that were believed by the management of the Borrower to be
reasonable in light of the then current and foreseeable business conditions of
the Borrower and the Restricted Subsidiaries and represented the Borrower's
management's good faith estimate of the consolidated projected financial
performance of the Borrower and the Restricted Subsidiaries based on the
information available to the Responsible Officers at the time so furnished.
(d) All Information made available to the Administrative Agent or any
Lender by or on behalf of the Borrower in connection with or pursuant to this
Agreement or any other Loan Document on or prior to the date on which this
representation and warranty is made or deemed made did not, as of the date such
Information was made available, contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
contained therein, taken as a whole, not materially misleading in light of the
circumstances under which such statements were made.
5.2 No Change. Since December 31, 1998, there has been no
---------
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
5.3 Existence; Compliance with Law. The Borrower and each Subsidiary
------------------------------
(a) is duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization, (b) has the corporate or partnership power
and authority, and the legal right, to own and operate its property, to lease
the property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified and, where applicable, in good standing
under the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification, except
where the failure to be so qualified could not reasonably be expected to have a
Material Adverse Effect, and (d) is in compliance with all Requirements of Law
except to the extent that the failure to comply therewith could not reasonably
be expected to have a Material Adverse Effect.
53
5.4 Power; Authorization; Enforceable Obligations. Each Loan Party
---------------------------------------------
has the power and authority, and the legal right, to make, deliver and perform
each of the Loan Documents to which it is a party and to grant any security
interests provided for therein and, in the case of the Borrower, to borrow
hereunder, and has taken all necessary action to authorize the execution,
delivery and performance of each of the Loan Documents to which it is a party
and, in the case of the Borrower, to authorize the borrowings on the terms and
conditions of this Agreement. Except as set forth on Schedule 5.4, no consent
------------
or authorization of, filing with, notice to or other act by or in respect of,
any Governmental Authority or any other Person (including any partner or
shareholder of any Loan Party or any Affiliate of any Loan Party) is required to
be obtained or made by any Loan Party or any other Person, in connection with
the borrowings hereunder or with the execution, delivery, performance, validity
or enforceability of the Loan Documents other than (a) the recording of the
Mortgages required by Section 6.1(t) or Section 7.9 and the filings and notices
-------------- -----------
required by the Pledge Agreements and Security Agreements and (b) such as have
been obtained or made and are in full force and effect or which are immaterial.
No consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person (including any
partner or shareholder of any Loan Party or any Affiliate of any Loan Party) is
required to be obtained or made by any Loan Party or any Subsidiary of any Loan
Party in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of the Loan Documents other
than such as have been obtained or made and are in full force and effect or
which are immaterial. Each Loan Document to which each Loan Party is a party
has been duly executed and delivered on behalf of each such Loan Party. Each
Loan Document constitutes a legal, valid and binding obligation of each Loan
Party thereto enforceable against each such Loan Party in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent transfer or
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
5.5 No Legal Bar. The execution, delivery and performance of the
------------
Loan Documents, the borrowings hereunder and the use of the proceeds thereof
will not (a) violate, result in a default under or conflict with any Requirement
of Law or any material Contractual Obligation, in any material respect, of the
Borrower or of any of the Restricted Subsidiaries or (b) violate any provision
of the charter or bylaws of the Borrower or the Restricted Subsidiaries and will
not result in a default under, or result in or require the creation or
imposition of any Lien on any of their respective properties or revenues
pursuant to any such Requirement of Law or material Contractual Obligation
(other than pursuant to the Security Documents).
5.6 No Material Litigation. No litigation, investigation or
----------------------
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower, any of
the Restricted Subsidiaries or against any of its or their respective properties
or revenues (a) with respect to any of the Loan Documents, the Atlanta
Acquisition, the Dogwood Acquisition or any of the transactions contemplated
hereby or thereby or (b) as to which there is a reasonable possibility of an
adverse determination and, that if adversely determined, could, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
54
5.7 No Default. Neither the Borrower nor any of the Restricted
----------
Subsidiaries is in breach of or default under or with respect to any of its
Contractual Obligations in any respect which could reasonably be expected to
have a Material Adverse Effect. No Default or Event of Default has occurred and
is continuing.
5.8 Ownership of Property; Intellectual Property. (a) Each of the
--------------------------------------------
Borrower and the Restricted Subsidiaries has good record and indefeasible title
in fee simple to, or a valid leasehold interest in, all its material real
property, and good title to, or a valid leasehold interest in, all its other
material property, and none of such property is subject to any Lien except as
permitted by Section 8.3. Schedule 5.24 (as supplemented from time to time)
----------- -------------
accurately describes the location of all real property owned or leased by the
Borrower or any Restricted Subsidiary and the location, by State and County of
all material tangible personal property associated with Stations owned by the
Borrower or any Restricted Subsidiary.
(b) The Borrower and the Restricted Subsidiaries have the right to use
all trademarks, tradenames, copyrights, technology, know-how or processes
("Intellectual Property") that are materially necessary for the conduct of the
-----------------------
business of the Borrower or any of the Restricted Subsidiaries, as applicable.
(c) As of the date of this Agreement, (i) neither the Borrower nor any
Restricted Subsidiary has received any notice of, nor has any knowledge of, any
pending or contemplated condemnation proceeding affecting the Mortgaged
Properties or any sale or disposition thereof in lieu of condemnation and (ii)
neither the Borrower nor any Restricted Subsidiary is obligated under any right
of first refusal, option or other contractual right to sell, assign or otherwise
dispose of any Mortgaged Property or any interest therein.
5.9 No Burdensome Restrictions. No Requirement of Law or Contractual
--------------------------
Obligation of the Borrower or any of the Restricted Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
5.10 Taxes. (a) All United States federal income Tax Returns of each
-----
Loan Party required by law to be filed have been filed and all taxes shown by
such returns or otherwise assessed, which are due and payable, have been paid,
except assessments which are being contested in good faith by appropriate
proceedings, and with respect to which adequate reserves are maintained in
accordance with GAAP. Each Loan Party (i) has filed all other Tax Returns that
are required to have been filed by it pursuant to applicable foreign, state,
local or other law, except where the failure to so file could not reasonably be
expected to have a Material Adverse Effect and (ii) has paid all taxes and other
assessments due pursuant to such returns or pursuant to any assessment received
by any Loan Party, except for such taxes and other assessments, if any, as are
being contested in good faith, for which the criteria for Customary Permitted
Liens have been satisfied, including, without limitation, for which adequate
reserves are maintained in accordance with GAAP and which could not reasonably
be expected to have a Material Adverse Effect.
(b) All Taxes and other assessments and levies which the Loan Parties
were or are required to withhold or collect have been withheld and collected and
have been paid over or will
55
be paid over when due to the proper governmental authorities except to the
extent the failure to withhold, collect or pay could not reasonably be expected
to have a Material Adverse Effect. Neither the Internal Revenue Service nor any
other taxing authority is now asserting or, to the knowledge of Borrower,
threatening to assert against any Loan Party any deficiency or claim for
additional Taxes or interest thereon or penalties in connection therewith which
could reasonably be expected to have a Material Adverse Effect. No Loan Party is
a party to any Tax allocation or sharing arrangement with any Person other than
another Loan Party, except as required in connection with the sale of property
under that certain Lease Agreement between Great Lakes Radio, Inc. and Xxxx as
in effect on the Initial Effective Date, or in connection with the proration of
Taxes in connection with Dispositions and Acquisitions. There are no Liens on
any of the assets of any Loan Party that arose in connection with any failure
(or alleged failure) to pay any Taxes except as permitted under Section 8.3.
-----------
5.11 Federal Regulations. Neither the Borrower nor any Subsidiary is
-------------------
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying Margin Stock. No
part of the proceeds of any Loan has been or will be used by the Borrower or any
Subsidiary, whether directly or indirectly, and whether immediately,
incidentally or ultimately, (i) to purchase or carry Margin Stock or to extend
credit to others for the purpose of purchasing or carrying Margin Stock or to
refund indebtedness originally incurred for such purpose, or (ii) for any
purpose that entails a violation of, or that is inconsistent with, the
provisions of the regulations of the Board including Regulations T, U and X. If
requested by any Lender or the Administrative Agent, the Borrower will furnish
to the Administrative Agent and each Lender a statement to the foregoing effect
in conformity with the requirements of FR Form U-1 referred to in said
Regulation U, as the case may be.
5.12 ERISA. Except as, in the aggregate, could not reasonably be
-----
expected to result in a Material Adverse Effect: (a) neither a Reportable Event
nor an "accumulated funding deficiency" (within the meaning of Section 412 of
the Code or Section 302 of ERISA) has occurred during the five-year period prior
to the date on which this representation is made or deemed made with respect to
any Plan, and each Plan has complied in all material respects with the
applicable provisions of ERISA and the Code; (b) no termination of a Single
Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan has
arisen, during such five-year period; (c) the present value of all accrued
benefits under each Single Employer Plan (based on those assumptions used to
fund such Plans) did not, as of the last annual valuation date prior to the date
on which this representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accrued benefits; (d) neither the Borrower
nor any Commonly Controlled Entity has had a complete or partial withdrawal from
any Multiemployer Plan, and neither the Borrower nor any Commonly Controlled
Entity would become subject to any liability under ERISA if the Borrower or any
such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the date on
which this representation is made or deemed made; and (e) no such Multiemployer
Plan is in Reorganization or Insolvent.
5.13 Investment Company Act; Other Regulations. No Loan Party is (a)
-----------------------------------------
an "investment company" or a company "controlled by" an "investment company," as
such terms are defined in the Investment Company Act of 1940, as amended, and
the rules and regulations
56
thereunder or (b) a "holding company" or a "subsidiary" or "affiliate" of a
"holding company" or a "public utility," as such terms are defined in the Public
Utility Holding Company Act of 1935, as amended, and the rules and regulations
thereunder. None of the transactions contemplated by this Agreement will violate
or result in a violation of Section 7 of the Exchange Act or any regulations
thereunder, including, without limitation, Regulations T, U and X of the Federal
Reserve Board. The making of the Loans and the issue and acquisition of the
Notes do not constitute "purpose credit" within the meaning of Regulation U of
the Federal Reserve Board, and the Lenders are not required to obtain a
statement from Borrower on any Federal Reserve Board form with respect to the
extension of credit hereunder. Loan Parties do not intend to apply, nor will it
apply, any part of the proceeds of the Loans in any manner that is unlawful or
would involve a violation of the Foreign Assets Control Regulations or the Cuban
Assets Control Regulations of the United States Treasury Department.
5.14 Restricted Subsidiaries. (a) Schedule 5.14(a) (as supplemented
----------------------- ----------------
from time to time) sets forth a true and complete list of (i) all of the
Restricted Subsidiaries and (ii) all of the issued and outstanding Equity
Interests (and related percentages of ownership of the Common Equity) and the
owners thereof, of the Borrower and each Restricted Subsidiary. The outstanding
shares of Equity Interests of each Restricted Subsidiary and the Borrower have
been duly authorized and validly issued and are fully paid and non-assessable,
and all of the outstanding shares of each class of the Equity Interests of each
Restricted Subsidiary are owned, directly or indirectly, beneficially and of
record, by the Borrower, free and clear of all Liens other than the Liens
created by the Security Documents.
(b) Except for changes otherwise permitted by this Agreement, the duly
authorized Equity Interests of the Borrower consists of (i) 3,000 authorized
shares of common stock, par value $.01 per share, which consists of (a) 1,000
shares of class A common stock of which 58.03 shares are outstanding as of the
Effective Date, and fully-paid and non-assessable, (b) 1,000 shares of class B
common stock of which 84.36 shares are outstanding as of the Effective Date, and
fully-paid and non-assessable, and (c) 1,000 shares of Non-Voting Common Stock
of which 93.8 shares are outstanding as of the Effective Date, and fully-paid
and non-assessable, and (ii) 290,000 authorized shares of Preferred Stock, $.01
par value per share, which consists of (a) 140,000 shares of 15% Series A Senior
Cumulative Redeemable Preferred Stock of which 84,843.03 shares are outstanding
as of the Effective Date and all of which are fully-paid and non-assessable, and
(b) 150,000 shares of 15% Series B Senior Cumulative Redeemable Preferred Stock
of which 124,467.10 shares are outstanding as of the Effective Date and all of
which are fully-paid and non-assessable. All the outstanding shares of Equity
Interests of each Loan Party are duly authorized, validly issued, fully paid and
nonassessable, and none of such shares has been issued in violation of any
preemptive or preferential Rights of any Persons. Until the closing of the
initial Public Equity Offering of the Borrower, no voting trusts, agreements or
other voting arrangements or any other agreements exist with respect to the
Common Equity of the Borrower other than those agreements relating to the sale
of Common Equity and New Preferred Stock of the Borrower which may be entered
into in contemplation of and in connection with the initial Public Equity
Offering of the Borrower (provided that any such agreements are terminated in
the event the Borrower does not close its initial Public Equity Offering) and
other than those listed on Schedule 5.14(b). No voting trusts, agreements or
----------------
other voting arrangements or any other agreements exist with respect to the
57
Equity Interests of any Restricted Subsidiary. Until the closing of the initial
Public Equity Offering of the Borrower, no outstanding subscription, contract,
convertible or exchangeable security, option, warrant, call or other Rights
(whether absolute or contingent, statutory or otherwise) (collectively, "Equity
------
Agreements") obligating or permitting the Borrower to issue, sell, exchange or
----------
otherwise dispose of or to purchase, redeem or otherwise acquire shares of, or
securities convertible into or exchangeable for, Equity Interests of the
Borrower (excluding the Senior Preferred Stock) exists other than Equity
Agreements relating to the sale of Common Equity and New Preferred Stock of the
Borrower entered into in contemplation of and in connection with the initial
Public Equity Offering of the Borrower (provided that all such Equity Agreements
are terminated in the event the Borrower does not close its initial Public
Equity Offering), the Warrants, the Allied Warrant and any options to purchase
Common Equity of the Borrower granted to employees of the Borrower or any
Restricted Subsidiary, provided such options are concurrently pledged to the
Lenders as security for the Obligations. No Equity Agreements obligating or
permitting any Restricted Subsidiary to issue, sell, exchange or otherwise
dispose of or to purchase, redeem or otherwise acquire shares of, or securities
convertible into or exchangeable for, Equity Interests of any Restricted
Subsidiary exists. No Equity Interest of any Loan Party is subject to any
restriction on transfer thereof except as set forth on Schedule 5.14(b) and
----------------
except for restrictions set forth in the Loan Documents and those imposed by
federal or state securities Laws or which may arise as a result of any Loan
Party being subject to the Communications Act. Pursuant to the Pledge
Agreements, until (i) the closing of the initial Public Equity Offering of the
Borrower, (ii) the repurchase or redemption of the outstanding Senior Preferred
Stock and (iii) the exercise of all of the outstanding Warrants for common stock
of the Borrower pursuant to the terms and provisions of the Warrant Certificates
as in effect on the date hereof, the Lenders will at all times hold a valid and
perfected first priority Lien on all of the issued and outstanding Equity
Interests of each Loan Party (other than the Senior Preferred Stock and Equity
Interests of Borrower issued to Allied Capital Corporation or Allied Investment
Corporation in connection with the Atlanta Acquisition), on a fully diluted
basis and on all warrants (other than the Allied Warrant) and options to
purchase such Equity Interests. Each Restricted Subsidiary of the Borrower is,
directly or indirectly, a Wholly Owned Subsidiary.
5.15 Insurance. Each Loan Party maintains with financially sound,
---------
responsible, and reputable insurance companies or associations (or, as to
workers' compensation or similar insurance, with an insurance fund or by self-
insurance authorized by the jurisdictions in which it operates) insurance
covering its properties and businesses against such casualties and contingencies
and of such types and in such amounts (and with co-insurance and deductibles) as
is customary in the case of same or similar businesses.
5.16 Authorization Matters. Except as could not reasonably be
---------------------
expected to result in a Material Adverse Effect:
(a) the Borrower and the Restricted Subsidiaries possess all
Authorizations necessary to own, operate and construct the Broadcast Assets
or otherwise for the operations of their businesses and are not in
violation thereof and all such Authorizations are in full force and effect
and no event has occurred that permits, or after notice or lapse of time
could permit, the revocation, termination or material and adverse
modification of any such
58
Authorization, other than the renewal of FCC Licenses in accordance with
the procedures of the FCC from time to time;
(b) neither the Borrower nor any of the Restricted Subsidiaries is in
violation of any duty or obligation required by the Communications Act of
1934, as amended, or any FCC rule or regulation applicable to its or their
operations;
(c) there is not pending or, to the best knowledge of the Borrower,
threatened, any action by the FCC to revoke, cancel, suspend or refuse to
renew any FCC License held by the Borrower or any of the Restricted
Subsidiaries and there is not pending or, to the best knowledge of the
Borrower, threatened, any action by the FCC to modify adversely, revoke,
cancel, suspend or refuse to renew any other Authorization; and
(d) there is not issued or outstanding or, to the best knowledge of
the Borrower, threatened, any notice of any hearing, violation or complaint
against the Borrower or any of the Restricted Subsidiaries with respect to
the Authorizations of the Borrower or of any of the Restricted Subsidiaries
and the Borrower has no knowledge that any Person intends to contest
renewal of any Authorization.
5.17 Environmental Matters. Except as could not reasonably be
---------------------
expected to result in a Material Adverse Effect:
(a) the facilities and properties owned by the Borrower or any of its
Subsidiaries (the "Owned Properties") do not contain, and, to the knowledge
----------------
of the Borrower to the extent not owned, leased or operated during the past
five years, have not contained during the past five years, any Materials of
Environmental Concern in amounts or concentrations which constitute or
constituted a violation of, or could reasonably be expected to give rise to
liability under, any Environmental Law;
(b) the facilities and properties leased or operated by the Borrower
or any of its Subsidiaries, but not owned by them (the "Leased and Operated
-------------------
Properties"), to the knowledge of the Borrower, do not contain and have not
----------
contained during the past five years, any Materials of Environmental
Concern in amounts or concentrations which constitute or constituted a
violation of, or could reasonably be expected to give rise to liability
under, any Environmental Law;
(c) the Owned Properties and all operations at the Owned Properties
are in compliance, and, to the knowledge of the Borrower to the extent not
owned, leased or operated during the past five years, have in the last five
years been in compliance, with all applicable Environmental Laws, and there
is no contamination at, under or about the Owned Properties or violation of
any Environmental Law with respect to the Owned Properties or the business
operated by the Borrower or any of its Subsidiaries (the "Business") which
--------
could interfere with the continued operation of the Owned Properties or
impair the fair saleable value thereof;
59
(d) to the knowledge of the Borrower, the Leased and Operated
Properties and all operations at the Leased and Operated Properties are in
compliance, and, in the last five years been in compliance, with all
applicable Environmental Laws, and to the knowledge of the Borrower there
is no contamination at, under or about the Leased and Operated Properties
or violation of any Environmental Law with respect to the Leased and
Operated Properties or the Business operated by the Borrower or any of its
Subsidiaries which could interfere with the continued operation of the
Leased and Operated Properties or impair the fair saleable value thereof;
(e) neither the Borrower nor any of its Subsidiaries has received any
notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Owned Properties or the Leased
and Operated Properties (together, the "Properties") or the Business, nor
----------
does the Borrower have any knowledge that any such notice will be received
or is being threatened;
(f) the Borrower has not transported or disposed of Materials of
Environmental Concern nor, to the Borrower's knowledge, have Materials of
Environmental Concern been transported or disposed of from the Properties
in violation of, or in a manner or to a location which could reasonably be
expected to give rise to liability to the Borrower or any Subsidiary under,
any Environmental Law, nor has the Borrower generated any Materials of
Environmental Concern nor, to the Borrower's knowledge, have Materials of
Environmental Concerns been generated, treated, stored or disposed of at,
on or under any of the Properties in violation of, or in a manner that
could reasonably be expected to give rise to liability to the Borrower or
any Subsidiary under, any applicable Environmental Law;
(g) no judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary is or will be
named as a party with respect to the Properties or the Business, nor are
there any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any applicable Environmental Law with respect to the
Properties or the Business; and
(h) the Borrower has not released, nor, to the Borrower's knowledge,
has there been any release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related
to the operations of the Borrower or any Subsidiary in connection with the
Properties or otherwise in connection with the Business, in violation of or
in amounts or in a manner that could reasonably be expected to give rise to
liability under Environmental Laws.
60
5.18 Accuracy of Information. (a) All material Information made
-----------------------
available to the Administrative Agent or any Lender by the Borrower pursuant to
this Agreement or any other Loan Document did not, as of the date such
Information was made available, contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
contained therein not materially misleading in light of the circumstances under
which such statements were made.
(b) All pro forma financial information and projections made available
--- -----
to the Administrative Agent or any Lender by the Borrower pursuant to this
Agreement or any other Loan Document have been prepared and furnished to the
Administrative Agent or such Lender in good faith and were based on estimates
and assumptions that were believed by the management of the Borrower to be
reasonable in light of the then current and foreseeable business conditions of
the Borrower and the Subsidiaries. The Administrative Agent and the Lenders
recognize that such pro forma financial information and projections and the
--- -----
estimates and assumptions on which they are based may or may not prove to be
correct.
5.19 Security Documents. (a) Each Pledge Agreement is effective to
------------------
create in favor of the Administrative Agent, for the ratable benefit of the
Lenders and other secured parties named therein, a legal, valid and enforceable
security interest in that portion of the Collateral described therein and
proceeds thereof and, when such Collateral is delivered to the Administrative
Agent, such Pledge Agreement shall constitute a fully perfected first priority
Lien on, and security interest in, all right, title and interest of the pledgors
thereunder in such Collateral and the proceeds thereof, in each case prior and
superior in right to any other Person.
(b) Each Security Agreement is effective to create in favor of the
Administrative Agent, for the ratable benefit of the Lenders and other secured
parties named therein, a legal, valid and enforceable security interest in that
portion of the Collateral described therein and proceeds thereof and, when
financing statements in appropriate form as filed in the offices specified in
the Perfection Certificates, such Security Agreement shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the grantors thereunder in such Collateral and the proceeds thereof, in each
case prior and superior in right to any other Person, to the extent provided in
such Security Agreement, other than with respect to the rights of Persons
pursuant to Liens expressly permitted by Section 8.3.
-----------
(c) The Mortgages are effective to create in favor of the
Administrative Agent, for the ratable benefit of the Lenders and other secured
parties named therein, a legal, valid and enforceable Lien on all of the right,
title and interest of the grantor named therein in and to the Mortgaged
Properties thereunder and the proceeds thereof, and when the Mortgages are filed
in the offices specified in the Perfection Certificates, the Mortgages shall
constitute fully perfected Liens on, and security interests in, all right, title
and interest of the such grantor in such Mortgaged Property and the proceeds
thereof, in each case prior and superior in right to any other Person, other
than with respect to the rights of Persons pursuant to Liens expressly
permitted by Section 8.3.
-----------
61
5.20 Solvency. As of the date on which this representation and
--------
warranty is made or deemed made, each Loan Party is Solvent, both before and
after giving effect to the transactions contemplated hereby consummated on such
date and to the incurrence of all Indebtedness and other obligations incurred on
such date in connection herewith and therewith.
5.21 Labor Matters. There are no actual or overtly threatened
-------------
strikes, labor disputes, slow downs, walkouts, or other concerted interruptions
of operations by the employees of any Loan Party which could reasonably be
expected to have a Material Adverse Effect. Hours worked by and payment made to
employees of the Loan Parties have not been in violation of the Fair Labor
Standards Act or any other applicable law dealing with such matters, other than
any such violations, individually or collectively, which could not reasonably be
expected to have a Material Adverse Effect. All payments due from any Loan
Party on account of employee health and welfare insurance have been paid or
accrued as a liability on its books, other than any such nonpayments which could
not, individually or collectively, reasonably be expected to have a Material
Adverse Effect.
5.22 Prior Names. (a) As of the Initial Effective Date, neither the
-----------
Borrower nor any Restricted Subsidiary has used or transacted business under any
other corporate or trade name in the five-year period preceding the Initial
Effective Date except as set forth on Schedule 5.22(a) hereto (as supplemented
----------------
from time to time).
(b) Neither the Borrower nor any Restricted Subsidiary uses or
transacts business under any corporate or trade names other than those set forth
in Schedule 5.22(b) (as supplemented from time to time).
----------------
5.23 Chief Executive Office; Chief Place of Business. Schedule 5.23
----------------------------------------------- -------------
(as supplemented from time to time) accurately sets forth the location of the
chief executive office and chief place of business (as such terms are used in
the Uniform Commercial Code of each state whose law would purport to govern the
attachment and perfection of the security interests granted by the Security
Documents) of the Borrower and each Restricted Subsidiary.
5.24 Real Property; Leases. Schedule 5.24(a) (as supplemented from
--------------------- ----------------
time to time) sets forth a correct and complete listing of (a) all real property
owned by each Loan Party, (b) all leases and subleases of real property leased
by each Loan Party, and (c) all leases and subleases of real property by each
Loan Party with annual lease payments to be received therefor in excess of
$50,000. Each Loan Party has good and marketable title to, or a valid and
subsisting leasehold interest in, all its material real property, subject to no
Liens except those permitted in Section 8.3. Each Loan Party enjoys peaceful and
-----------
undisturbed possession of its owned and leased real property and the
improvements thereon and no Material Lease or other lease material to the
operation of any Loan Party's business contains any unusual provisions that
might adversely affect or impair such Loan Party's use and enjoyment of the
property covered thereby or the operation of such Loan Party's business or, in
either case, which could reasonably be expected to have a Material Adverse
Effect. All Material Leases are in full force and effect and no default or
potential default exists thereunder which could reasonably be expected to have a
Material Adverse Effect, except as disclosed in Schedule 5.24.
-------------
62
5.25 Ownership of Stations. Schedule 5.25 (as supplemented from time
--------------------- -------------
to time) completely and correctly lists each radio broadcast station owned
directly or indirectly by any Loan Party (individually, a "Station" and
-------
collectively, the "Stations"). No Loan Party owns any radio broadcast stations
--------
other than the Stations.
5.26 Possession of Necessary Authorizations Each Loan Party possesses
--------------------------------------
all Necessary Authorizations (or rights thereto) used or to be used in its
business as presently conducted and as proposed to be conducted or necessary to
permit it to own its properties and to conduct its business as presently
conducted and as proposed to be conducted, except to the extent the failure to
so possess could not reasonably be expected to have a Material Adverse Effect,
free and clear of all Liens other than those permitted under Section 8.3. No
-----------
Loan Party is in violation of any Necessary Authorization and no event has
occurred which permits, or after notice or lapse of time or both would permit,
the revocation or termination of any Necessary Authorization or right which
could reasonably be expected to have a Material Adverse Effect. The Necessary
Authorizations for the Stations are valid and in full force and effect
unimpaired by any act, omission or condition which could reasonably be expected
to have a Material Adverse Effect. The applicable Loan Parties have timely
filed all applications for renewal or extension of all Necessary Authorizations,
except to the extent that the failure to so file could not reasonably be
expected to have a Material Adverse Effect. Except for actions or proceedings
(i) affecting the broadcasting industry generally or (ii) which could not
reasonably be expected to have a Material Adverse Effect, no petition, action,
investigation, notice of violation or apparent liability, notice of forfeiture,
orders to show cause, complaint or proceeding is pending or, to the best
knowledge of the Borrower, threatened before the FCC or any other forum or
agency with respect to any Loan Party or any of the Stations or seeking to
revoke, cancel, suspend or modify any of the Necessary Authorizations. The
Borrower does not know of any fact that is likely to result in the denial of an
application for renewal, or the revocation, modification, nonrenewal or
suspension of any of the Necessary Authorizations, or the issuance of a cease-
and-desist order, or the imposition of any administrative or judicial sanction
with respect to any of the Stations, which could reasonably be expected to have
a Material Adverse Effect.
5.27 FCC, Copyright, Patent and Trademark Matters. No Loan Party is
--------------------------------------------
liable to any Person for copyright infringement under the Federal Copyright Act
or any state copyright Laws which could reasonably be expected to have a
Material Adverse Effect. To the best knowledge of the Loan Parties, each Loan
Party and each Station is in material compliance with all state and federal laws
relating to copyright, including the Copyright Revision Act of 1976, 17 U.S.C.
(S) 101 et. seq., and have all performing arts licenses which are materially
-- ---
necessary for the conduct of their business. To the best knowledge of each Loan
Party, no Loan Party owns any patents or trademarks that have been registered
with any Tribunal and no applications for registration are pending with respect
to any patents or trademarks owned by any Loan Party, except as set forth in
Schedule 5.27 (as supplemented from time to time).
-------------
5.28 License Subsidiaries. All FCC Licenses and other Authorizations
--------------------
relating to the Stations are held by a License Subsidiary. No License
Subsidiary (a) owns or holds any assets (including the ownership of stock or any
other interest in any Person) other than Operating Agreements and FCC Licenses
and other Authorizations relating to the Stations, (b) is engaged in any
business other than the holding, acquisition and maintenance of FCC Licenses and
other
63
Authorizations, (c) has any investments in any other Person other than the
Borrower or (d) owes any Indebtedness (other than Guaranty Obligations to the
Senior Subordinated Note Holders and the Lenders with respect to the Senior
Subordinated Indebtedness and the Obligations, respectively) to any Person other
than the Borrower.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Effectiveness of this Agreement. The effectiveness
---------------------------------------------
of this Agreement is subject to the satisfaction of the following conditions
precedent:
(a) Loan Documents. The Administrative Agent shall have received (i)
--------------
this Agreement duly executed and delivered by the Borrower; (ii) Notes,
duly executed and delivered by the Borrower and payable to the order of
each Lender, (iii) a Pledge Agreement duly executed and delivered by the
Borrower and each Restricted Subsidiary, including Atlanta and Dogwood,
(iv) Pledge Agreements duly executed and delivered by the Xxxxxx-Xxxxxxx
Entities, the Management Stockholders and Xxxx Xxxxxxxxx Xxxxx, (v) a
Pledge Agreement duly executed and delivered by the Warrantholders, (vi)
Pledge Agreements duly executed and delivered by the ROA Stockholders other
than Allied Capital Corporation and Allied Investment Corporation, (vii) a
Security Agreement duly executed and delivered by the Borrower and each
Restricted Subsidiary, including Atlanta, Dogwood, Atlanta Licenses and
Dogwood Licenses, (viii) an Intellectual Property Security Agreement duly
executed by the Borrower and each Restricted Subsidiary, including Atlanta,
Dogwood, Atlanta Licenses and Dogwood Licenses, and (ix) a Guaranty duly
executed and delivered by each Restricted Subsidiary, including Atlanta,
Dogwood, Atlanta Licenses and Dogwood Licenses.
(b) Closing Certificates. The Administrative Agent shall have
--------------------
received a certificate (the "Closing Certificate") for each Loan Party and
-------------------
each of the Xxxxxx-Xxxxxxx Entities, dated the Effective Date,
substantially in the form of Exhibit K, with appropriate insertions and
---------
attachments (including the Charter Documents of such Loan Party), in each
case reasonably satisfactory in form and substance to the Administrative
Agent, executed by a Responsible Officer and the Secretary or any Assistant
Secretary of each Loan Party, which certificate shall state that the
consent or approval thereby certified has not been amended, modified,
revoked or rescinded.
(c) Fees. The Administrative Agent shall have received:
----
(i) all fees and expenses required to be paid at such time under
Sections 3.3 and 4.3;
------------ ---
(ii) all fees required to paid at such time under the Fee
Letter; and
(iii) all reasonable fees and expenses of counsel to the
Administrative Agent in connection with this Agreement and the other
Loan Documents.
64
(d) Legal Opinions. The Administrative Agent shall have received,
--------------
with a counterpart for each Lender, the following executed legal opinions:
(i) the executed legal opinions of Xxxxxxxx & Xxxxx,
substantially in the forms of Exhibit L-1 and L-2;
-------------------
(ii) the executed legal opinion of Xxxxx Xxxxxx Xxxxxxxx LLP,
FCC counsel to the Borrower, substantially in the form of Exhibit M;
---------
and
(iii) from such local counsel to the Loan Parties as the
Administrative Agent may require in respect of the Mortgages and other
Security Documents, each in form and substance satisfactory to the
Administrative Agent.
(e) Financial Statements. The Lenders shall have received (i) audited
--------------------
consolidated financial statements of the Borrower and its consolidated
Subsidiaries and audited consolidated financial statements of Atlanta and
Dogwood for the 1998 fiscal year, which financial statements shall have
been prepared in accordance with GAAP and shall be accompanied by an
unqualified report thereon prepared by Xxxxxx Xxxxxxxx L.L.P.
(f) Governmental and Third Party Approvals. All material
--------------------------------------
Authorizations and third-party approvals (including, without limitation,
all FCC Licenses and consents) necessary or appropriate in connection with
the Atlanta Acquisition, the Dogwood Acquisition, the financing thereof and
the other transactions contemplated by the Loan Documents shall have been
obtained and shall be in full force and effect, and all applicable waiting
periods (except with respect to the Borrower's acquisition of control of
Atlanta and Dogwood and the simultaneous transfer by Atlanta of its FCC
Licenses to Atlanta Licenses and the simultaneous transfer by Dogwood of
its FCC Licenses to Dogwood Licenses) shall have expired without any action
being taken or threatened by any competent authority which would restrain,
prevent or otherwise impose materially adverse conditions on the Atlanta
Acquisition, the Dogwood Acquisition, the financing thereof or the other
transactions contemplated by the Loan Documents and copies of all such
Authorizations and third-party approvals shall be delivered to the
Administrative Agent.
(g) No Material Adverse Information. The Lenders shall not have
-------------------------------
become aware of any previously undisclosed materially adverse information
with respect to (i) the ability of the Loan Parties to perform their
respective obligations under the Loan Documents or in connection with the
transactions contemplated hereunder in any material respect or (ii) the
rights and remedies of the Lenders.
(h) No Material Default Under Other Agreements. There shall exist no
------------------------------------------
material breach or event of default (or condition which would constitute
such breach or an event of default with the giving of notice or the passage
of time) under any agreements relating to Equity Interests, or any material
financing agreements, lease agreements or other material Contractual
Obligation, to which the Borrower, any of the Restricted Subsidiaries or
Atlanta or Dogwood is a party or by which any of them is bound.
65
(i) Pledged Securities and Instruments of Transfer. The
----------------------------------------------
Administrative Agent shall have received the certificates representing the
shares of Equity Interests (other than the Senior Preferred Stock) pledged
pursuant to each Pledge Agreement, accompanied by duly executed instruments
of transfer or assignments in blank for each such certificate.
(j) Actions to Perfect Liens. (i) All filing documents, necessary or,
------------------------
in the opinion of the Administrative Agent, desirable to perfect or
continue to protect the Liens created by the Security Documents shall have
been executed and delivered by the pledgors or grantors thereunder; and
(ii) all Collateral shall be free and clear of Liens except for Liens
permitted by Section 8.3 and other Liens approved by the Lenders.
-----------
(k) Material Adverse Change. There shall exist no material adverse
-----------------------
change in the financial condition or business operations of the Borrower,
the Restricted Subsidiaries or Atlanta or Dogwood since December 31, 1998.
(l) Projections and Certified Pro Forma Financial Information. The
---------------------------------------------------------
Administrative Agent shall have received (i) a pro forma consolidated
balance sheet for the Borrower and the Restricted Subsidiaries (giving
effect to the Atlanta Acquisition, the extensions of credit to be made
hereunder and the use of proceeds hereunder) dated as of December 31, 1998,
certified to by a Responsible Officer, and (ii) management's five year
projections for the Borrower and the Restricted Subsidiaries, after giving
effect to the Atlanta Acquisition and the Dogwood Acquisition.
(m) Lien Searches. The Administrative Agent shall have received the
-------------
results of a recent search by a Person reasonably satisfactory to the
Administrative Agent, of the Uniform Commercial Code, judgment and tax lien
filings which may have been filed with respect to personal property of the
Borrower and the Restricted Subsidiaries, Atlanta, Dogwood and Atlanta
Licenses in each of the jurisdictions where such personal property is
located or in which financing statements will be filed to perfect the
security interests granted pursuant to the Security Documents, and such
search shall reveal no Liens relating to the personal property of the
Borrower, the Restricted Subsidiaries, Atlanta, Dogwood, or to the
Collateral, except for Liens which will be terminated on or before the
Effective Date, Liens referred to in Section 6.1(j), Liens permitted by
--------------
Section 8.3, and other Liens approved by the Lenders.
-----------
(n) Insurance. The Administrative Agent shall have received
---------
certificates of insurance naming (i) the Administrative Agent as loss payee
for the benefit of the Lenders and (ii) each of the Lenders as an
additional insured, as required by Section 7.5(b).
--------------
(o) Standstill Agreement. (i) The Administrative Agent shall have
--------------------
received an original fully executed copy of the Standstill Agreement, (ii)
the Borrower shall have caused each Investor's certificate representing the
Senior Preferred Stock to contain the legend required in the Standstill
Agreement, and (iii) the Borrower shall have caused each Warrant
Certificate to contain the legend required in the Standstill Agreement.
66
(p) License Subsidiaries and Operating Agreements. The Borrower shall
---------------------------------------------
have caused all Necessary Authorizations relating to the Stations
(including Station WHTA, Fayetteville, Georgia) to have been transferred
to a License Subsidiary, which License Subsidiary shall (i) be a Wholly
Owned Restricted Subsidiary, (ii) shall have no Indebtedness (other than
Guaranty Obligations to the Senior Subordinated Note Holders and the
Lenders with respect to the Senior Subordinated Indebtedness and the
Obligations, respectively), (iii) shall have no assets, other than the
Necessary Authorizations and (iv) shall otherwise be in compliance with the
representations and warranties set forth in Section 5.28. The Borrower and
------------
each License Subsidiary shall have entered into an Operating Agreement and
the Administrative Agent shall have received a fully executed copy of each
such Operating Agreement.
(q) FCC Consents. The Borrower (i) shall have received all of the
------------
Necessary Authorizations (A) for the consummation of the transactions
contemplated herein (including the Atlanta Acquisition and the transfer of
Atlanta's FCC Licenses to Atlanta Licenses and the Dogwood Acquisition and
the transfer of Dogwood's FCC Licenses to Dogwood Licenses) and in any
related agreements or documents, (B) the period for seeking
reconsideration, review or appeal of such Necessary Authorizations shall
have expired, except with respect to: (1) the Borrower's acquisition of
control of Allur-Detroit, Inc., and the simultaneous transfer by Allur-
Detroit, Inc. of its FCC Licenses to a License Subsidiary, (2) the
Borrower's acquisition of control of Atlanta and the simultaneous transfer
by Atlanta of its FCC Licenses to a License Subsidiary and (3) the
Borrower's acquisition of control of Dogwood and the simultaneous transfer
by Dogwood of its FCC Licenses to a License Subsidiary and (C) no such
reconsideration, review or appeal shall have been sought by any party; and
(ii) shall have delivered to the Administrative Agent copies of Form 732,
evidencing: (A) the initial consent by the FCC of the transfer to Atlanta
Licenses of FCC Licenses previously held by Atlanta; (B) the initial
consent by the FCC of the transfer to Dogwood Licenses of the FCC Licenses
previously held by Dogwood; and (C) the consent by the FCC to the ownership
by Xxxxxx and Xxxxxxx, considered together, of more than 50% of the Equity
Interests in the Borrower.
(r) Perfection Certificate. The Administrative Agent shall have
----------------------
received a Perfection Certificate, dated the date of this Agreement, duly
executed by each Loan Party.
(s) Amendment to Preferred Stockholders' Agreement. The
----------------------------------------------
Administrative Agent shall have received a Fifth Amendment to the Preferred
Stockholders' Agreement in the form attached hereto as Exhibit N.
---------
(t) Mortgages. The Mortgages covering the Mortgaged Properties
---------
specified on Schedule 5.24(b), duly executed and delivered by the Borrower
----------------
and each applicable Restricted Subsidiary, including Atlanta.
(u) Mortgagee Policies of Title Insurance/Surveys. To the extent
---------------------------------------------
reasonably required by the Administrative Agent (A) mortgagee policies of
title insurance and endorsements of existing mortgagee policies of title
insurance, in such amounts as are
67
approved by the Administrative Agent, insuring that the Mortgages create in
favor of the Administrative Agent for the benefit of the Lenders a first
priority Lien on the real property and interests in real property covered
by the Mortgages and reflecting a state of title and exceptions thereto, if
any, reasonably acceptable to the Administrative Agent and containing such
endorsements as the Administrative Agent may require and (B) copies of
recent surveys with respect to each tract of real property covered by each
Mortgage, dated and certified in a manner reasonably satisfactory to the
Administrative Agent and the title insurance company issuing the mortgagee
policies of title insurance and prepared in accordance with the Minimum
Standard Detail Requirements for Land Title Surveys jointly established and
adopted by the American Land Title Association and American Congress on
Surveying and Mapping in 1992 by an independent professional licensed land
surveyor satisfactory to such title insurance company.
(v) Copies of Exception Documents. To the extent required by the
-----------------------------
Administrative Agent, copies of all recorded documents referred to, or
listed as exceptions to title in, the title policy or policies and a copy,
certified by such parties as the Administrative Agent may reasonably deem
appropriate, of all other documents affecting the property covered by each
Mortgage.
(w) Landlord Waivers and Consents. To the extent required by the
-----------------------------
Administrative Agent, Landlord Waivers and Consents signed by each lessor
of real property leased by the Borrower or any Restricted Subsidiary
(including Atlanta and Dogwood), waiving such lessor's liens in and to the
equipment or fixtures of the applicable Loan Party located on the leased
premises and consenting to an assignment of the applicable lease to the
Lenders or purchasers of the Lenders after an Event of Default.
(x) Cancellation of Liens. Evidence that all Liens other than Liens
---------------------
permitted by Section 8.3 have been canceled and released, including duly
-----------
executed releases and UCC-3 financing statements in recordable form and
otherwise in form and substance satisfactory to the Administrative Agent.
(y) Consummation of Atlanta Acquisition and the Dogwood Acquisition.
---------------------------------------------------------------
The Lenders shall have received satisfactory evidence that the Atlanta
Acquisition and the Dogwood Acquisition shall have been consummated prior
to or concurrently with the making of the initial Loans pursuant to and in
accordance with the terms and conditions of the Atlanta Acquisition
Agreement and related acquisition documentation reasonably satisfactory in
form and substance to the Lenders (no material provision thereof having
been amended, supplemented, waived or otherwise modified, without the prior
written consent of the Lenders).
(z) Appointment of Service Agent. Evidence that Corporation Service
----------------------------
Company has accepted its appointment as agent for the Borrower and the
Restricted Subsidiaries (including Atlanta and Dogwood) to receive service
of process in any legal action or proceeding relating to the Loan Documents
brought in the State of New York during the period from the Effective Date
through two years following the Termination Date.
68
(aa) Repayment and Cancellation of Certain Indebtedness. (i) All
--------------------------------------------------
Atlanta Existing Indebtedness and all Indebtedness not permitted by Section
-------
8.2 shall have been paid or otherwise discharged in full, and all Liens
---
created in connection therewith shall have been terminated and (ii) the
Lenders shall have received satisfactory evidence (including receipt by the
Agent of copies of canceled instruments and securities) that such
Indebtedness has been paid and loan documentation, security interests,
guaranties and Liens with respect thereto have been terminated and released
concurrently with the making of the initial Loans.
6.2 Conditions to All Extensions of Credit. The obligation or
--------------------------------------
agreement of each Lender to make any Loan or to issue any Letter of Credit
requested to be made or issued by it on any date (including, without limitation,
its initial extension of credit under this Agreement) is subject to the
satisfaction, immediately prior to or concurrently with the making of such Loans
or the issuing of such Letters of Credit, of the following conditions precedent:
(a) No Material Litigation. No litigation, inquiry, injunction or
----------------------
restraining order shall be pending, entered or threatened in writing which
could reasonably be expected to have a Material Adverse Effect.
(b) No Material Adverse Effect. There shall not have occurred any
--------------------------
change, development or event which could reasonably be expected to have a
Material Adverse Effect.
(c) Representations and Warranties. Each of the representations and
------------------------------
warranties made by any Loan Party in or pursuant to the Loan Documents to
which it is a party shall be true and correct in all material respects on
and as of such date as if made on and as of such date, after giving effect
to the Loans requested to be made or the Letters of Credit to be issued on
such date and the proposed use of the proceeds thereof.
(d) No Default. No Default or Event of Default shall have occurred
----------
and be continuing on such date or will occur immediately after giving
effect to the extension of credit requested to be made on such date and the
proposed use of the proceeds thereof.
(e) Notice of Borrowing; Application. The Borrower shall have
--------------------------------
submitted a Notice of Borrowing in accordance with Section 2.3 and/or an
-----------
Application in accordance with Section 3.2 and certifying to the matters
-----------
set forth in Section 6.2(a) through and including (d).
-------------- ---
(f) Consent to Extensions of Credit. The Administrative Agent shall
-------------------------------
have received (i) a consent in writing signed by Investors holding a
majority of the outstanding shares of Senior Preferred Stock and the
Borrower with respect to any extensions of credit requested hereunder
which, when aggregated with all other extensions of credit hereunder
outstanding at such time, causes the Aggregate Outstandings of Credit of
all Lenders to exceed $57,500,000, and (ii) the execution by at least two
directors of the Borrower representing the interests of the Investors as
elected pursuant to Article 8 of the Warrant Agreement (the "Independent
--------- -----------
Directors") of a directors' consent authorizing each extension of credit
---------
requested hereunder, in each case until the earlier to occur of (x) the
date of the
69
closing of the initial Public Equity Offering of the Borrower and the
repurchase and/or redemption of all of the Senior Preferred Stock
outstanding on the Effective Date and (y) the date the Administrative Agent
has received a written notice from at least two Independent Directors that
no such further consent is required.
(g) Compliance Certificate. The Administrative Agent shall have
----------------------
received a pro forma Compliance Certificate duly executed by a Responsible
Officer of the Borrower and each of the Restricted Subsidiaries giving
effect to the requested extension of credit, the use of proceeds thereof
and any transaction to be consummated in connection therewith certifying to
the Lenders that (i) no Default or Event of Default exists both before and
immediately after giving effect to such extension of credit, the uses
thereof and transactions to be consummated in connection therewith and (ii)
the Borrower can incur such Indebtedness under the Senior Subordinated Debt
Documents and any other documents evidencing Subordinated Debt permitted to
be incurred by the Borrower under this Agreement.
Each borrowing by or issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the applicable conditions contained in
this Section 6.2 have been satisfied.
-----------
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as any Commitment remains in
effect, any Loan or L/C Obligation or any other monetary obligation under any
other Loan Document shall be outstanding or is due and payable to any Lender or
the Administrative Agent hereunder or under any other Loan Document, the
Borrower shall and shall cause each of the Restricted Subsidiaries to:
7.1 Financial Statements. Furnish to each of the Lenders:
--------------------
(a) as soon as available, but in any event no later than 90 days after
the end of each fiscal year of the Borrower, a copy of the audited
consolidated balance sheets of the Borrower and the Restricted
Subsidiaries as at the end of such year and the related audited
consolidated statements of income and shareholders' capital (deficit) and
of cash flows for such year, setting forth in each case in comparative form
the figures for the previous year, reported on without a "going concern" or
like qualification or exception, or qualification arising out of the scope
of the audit, by Xxxxxx Xxxxxxxx LLP or other independent certified public
accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three fiscal quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated balance sheet of
the Borrower and the Restricted Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of income and of cash
flows for such quarter and the portion of the fiscal year through the end
of such quarter, setting forth in each case in comparative form the figures
for the previous year, certified by
70
a Responsible Officer as fairly presenting in all material respects the
financial condition of the Borrower and the Restricted Subsidiaries, taken
as a whole (subject to normal year- end audit adjustments and the absence
of footnotes); and
(c) within thirty (30) days after the end of each of the first two
months for each quarter (i) statements of operation comparing such results
to (A) the Budget for that period and (B) the results of the statements of
operation for the prior year, and (ii) a balance sheet for such first two
months, and (iii) a brief written discussion and analysis by management of
such statements, including a comparison of the results versus the budgeted
results and results for comparable periods in the preceding fiscal year and
an explanation for any variances therein.
All such financial statements (not including the Budget) shall be prepared in
accordance with GAAP (except for the absence of footnotes and year end
adjustment in the case of interim financials) applied consistently throughout
the periods reflected therein and with prior periods (except as approved by such
accountants or officer, as the case may be, and disclosed therein).
7.2 Certificates; Other Information. Furnish to each of the Lenders:
-------------------------------
(a) concurrently with the delivery of the financial statements
referred to in Section 7.1(a), a certificate of the independent certified
--------------
public accountants reporting on such financial statements stating that in
making the examination necessary therefor they did not become aware of any
Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Sections 7.1(a) or (b), a Compliance Certificate executed by
--------------- ---
a Responsible Officer of the Borrower and each of the Restricted
Subsidiaries;
(c) without duplication of the financial statements delivered pursuant
to Section 7.1, within five days after the same are sent, copies of all
-----------
financial statements and reports which the Borrower sends to all of the
holders of the Senior Subordinated Notes, and within five days after the
same are filed, copies of all financial statements and reports which the
Borrower files with, the Securities and Exchange Commission or any
successor or analogous Governmental Authority;
(d) promptly, such additional financial and other information as any
Lender may from time to time reasonably request;
(e) on or before the end of each fiscal year (and in any event within
the month of December), (i) the budget for the Borrower and the Restricted
Subsidiaries, prepared on a monthly basis (the "Budget"), for the next
------
succeeding fiscal year setting forth in satisfactory detail the projected
revenues and expenses, including, without limitation, Capital Expenditures,
broadcast cash flow, Corporate Overhead Expense, EBITDA, Fixed Charges,
Funded Debt, and Consolidated Interest Expense and the underlying
assumptions therefor
71
and the latest quarterly Arbitron ratings for each Station showing the 12+
share of audience (as designated by Arbitron) and the Borrower's target
demographic share of audience;
(f) within 10 days of any changes thereto, supplements to Schedules
---------
5.14(a), 5.22(b), 5.23, 5.24, 5.25 and 5.27; and
------- ------- ---- ---- ---- ----
(g) on or before the 90th day after the end of each fiscal year of the
Borrower, updated versions of the five year projections for the Borrower
and the Restricted Subsidiaries delivered to the Administrative Agent
pursuant to Section 6.1(l)(ii), setting forth in satisfactory detail the
------------------
changes to such financial projections and the underlying assumptions
thereto.
7.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
----------------------
or before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except (a) where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or the relevant Restricted Subsidiary, as the case may
be or (b) where the failure to so pay, discharge or satisfy, could not
reasonably be expected to have a Material Adverse Effect.
7.4 Conduct of Business and Maintenance of Existence, etc. (a)
------------------------------------------------------
Preserve, renew and keep in full force and effect its organizational existence
and take all reasonable action to maintain all material rights, privileges and
franchises necessary for the conduct of its business except as otherwise
permitted pursuant to Section 8.4.
-----------
(b) Comply with all Contractual Obligations and applicable
Requirements of Law, except to the extent that failure to comply therewith could
not reasonably be expected to have a Material Adverse Effect.
7.5 Maintenance of Property; Insurance. (a) Keep all material
----------------------------------
property useful and necessary in its business in good working order and
condition (ordinary wear and tear excepted) consistent with customary practices
in the industry of the Borrower; maintain with financially sound and reputable
insurance companies insurance on all its property in at least such amounts and
against at least such risks as are usually insured against in the same general
area by companies engaged in the same or a similar business; and furnish to the
Administrative Agent certificates of insurance from time to time received by it
for each such policy of insurance including insurance policies evidencing the
Borrower's compliance with Section 7.5(b).
--------------
(b) The Borrower shall cause (i) the Administrative Agent to be
named, in a manner reasonably satisfactory to the Administrative Agent, (a) as
lender loss payee for the benefit of the Lenders under all policies of casualty
insurance maintained by the Borrower and the Restricted Subsidiaries with
respect to Collateral and (b) the Lenders to be named as an additional insured
on all policies of liability insurance maintained by the Borrower and the
Restricted Subsidiaries; and (ii) all insurance policies to contain a provision
that the policy may not be canceled, terminated or modified without thirty (30)
days' prior written notice to the Administrative Agent.
72
7.6 Inspection of Property; Books and Records; Discussions. Keep and
------------------------------------------------------
maintain a system of accounting established and administered in accordance with
sound business practices and keep and maintain proper books of record and
accounts; and permit representatives of any Lender to visit and inspect any of
its properties and examine and make abstracts from any of its books and records
during normal business hours and as often as may reasonably be requested and
upon reasonable notice and to discuss the business, operations, properties and
financial and other condition of the Borrower and the Restricted Subsidiaries
with officers and employees of the Borrower and the Restricted Subsidiaries and
with their independent certified public accountants; provided that
representatives of the Borrower designated by a Responsible Officer may be
present at any such meeting with such accountants.
7.7 Notices. Promptly after the Borrower obtains knowledge thereof,
-------
give notice to the Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of the Restricted Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time between
the Borrower or any of the Restricted Subsidiaries and any Governmental
Authority, which in either case could reasonably be expected to have a
Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any of the
Restricted Subsidiaries (i) which could reasonably be expected to result in
an adverse judgment of $1,000,000 or more and which is not covered by
insurance or (ii) in which injunctive or similar relief is sought which in
the case of this clause (ii) could reasonably be expected to materially
interfere with the ordinary conduct of business of the Borrower or any of
the Restricted Subsidiaries;
(d) the following events, as soon as possible and in any event within
30 days after the Borrower knows thereof: (i) the occurrence of any
Reportable Event with respect to any Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC or a
Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the institution of
proceedings or the taking of any other action by the PBGC or the Borrower
or any Commonly Controlled Entity or any Multiemployer Plan with respect to
the withdrawal from, or the terminating, Reorganization or Insolvency of,
any Plan;
(e) promptly after the filing or mailing thereof, and in any event
within five days thereafter, a copy of each material application,
statement, report, registration statement, notice or other filing which is
(i) filed with the FCC by or on behalf of any Loan Party, or of which any
Loan Party has knowledge, with respect to or affecting a Station owned
directly or indirectly by any Loan Party, (ii) made with the Securities and
Exchange Commission or (iii) distributed to the public shareholders or
debtholders of the Borrower generally, and, promptly on the request of any
Lender, a copy of any other statement, report, notice or other
73
filing filed or made with (x) the FCC by or on behalf of any Loan Party, or
of which any Loan Party has knowledge or (y) any other Tribunal;
(f) promptly after such occurrence, and in any event within five days
thereafter, notice of any situation in which on-air broadcasting operations
of any Station are interrupted for more than 24 consecutive hours;
(g) promptly after any officer of any Loan Party becomes aware
thereof, and in any event within five days thereafter, information and a
copy of any notice received by any Loan Party from the FCC or other
Tribunal or any Person that concerns (i) any event or circumstance that
could reasonably be expected to materially adversely affect any Necessary
Authorization and (ii) any notice of abandonment, expiration, revocation,
material impairment, nonrenewal or suspension of any Necessary
Authorization, together with a written explanation of any such event or
circumstance or the circumstances surrounding such abandonment, expiration,
revocation, material impairment, nonrenewal or suspension;
(h) promptly after any officer of any Loan Party becomes aware
thereof, and in any event within five days thereafter, notice of any
default or breach of any term or provision by any Person in connection with
any LMA Agreement, any Material Lease or any other material Contractual
Obligation of such Loan Party, together with a written explanation of the
circumstances surrounding such default or breach and what action any Loan
Party plans to take with respect thereto; and
(i) any development or event which could reasonably be expected to
have a Material Adverse Effect.
Each notice pursuant to this Section (other than pursuant to clause (e)) shall
be accompanied by a statement of a Responsible Officer setting forth details of
the occurrence referred to therein and stating what action is proposed to be
taken with respect thereto.
7.8 Environmental Laws. (a) Comply with, and use reasonable
------------------
efforts to require compliance by all tenants and subtenants, if any, with, all
applicable Environmental Laws and obtain and comply with and maintain, and use
reasonable efforts to require that all tenants and subtenants obtain and comply
with and maintain, any and all licenses, approvals, notifications, registrations
or permits required by applicable Environmental Laws except, in each case, to
the extent that failure to do so could not be reasonably expected to have a
Material Adverse Effect.
(b) Comply with all lawful orders and directives of all Governmental
Authorities regarding Environmental Laws except to the extent that the same are
being contested in good faith by appropriate proceedings diligently pursued or
could not reasonably be expected to have a Material Adverse Effect.
7.9 Collateral. (a) To secure full and complete payment and
----------
performance of the Obligations, the Borrower shall, and shall cause each of the
Restricted Subsidiaries to, grant and convey to and create in favor of, the
Administrative Agent for the ratable benefit of the Lenders a
74
continuing first priority (subject, except for Equity Interests, to any prior
Liens permitted by Section 8.3) perfected Lien and security interest in, to
-----------
and on all of the Collateral (other than: (A) the Equity Interests of
Unrestricted Subsidiaries; and (B) minority Equity Interests in Persons that are
not Subsidiaries, acquired in accordance with and pursuant to Sections 8.8(b)
and 8.8(d) if the Borrower or Restricted Subsidiary, as the case may be, is
contractually prohibited from creating a Lien in such minority Equity
Interests), of the Borrower and such Restricted Subsidiaries (except to the
extent prohibited by law or as otherwise provided by law or as otherwise
provided in the Security Agreements or Intellectual Property Security
Agreements) including but not limited to the following: (i) all of the
Borrower's and such Restricted Subsidiaries' present and future assets (other
than (A) Equity Interests in Unrestricted Subsidiaries; and (B) minority Equity
Interests in Persons that are not Subsidiaries, acquired in accordance with and
pursuant to Sections 8.8(b) and 8.8(d) if the Borrower or Restricted Subsidiary,
as the case may be, is contractually prohibited from creating a Lien in such
minority Equity Interests), including, without limitation, their equipment,
inventory, accounts receivable, instruments, general intangibles, intellectual
property and real estate (in each case, unless otherwise agreed by the
Administrative Agent); and (ii) all of the Equity Interests of each Restricted
Subsidiary owned by the Borrower or any other Restricted Subsidiary, now owned
or hereafter acquired by the Borrower or such other Restricted Subsidiary.
(b) With respect to any new Restricted Subsidiary created or acquired
after the Initial Effective Date, (i) the Borrower, and/or any Restricted
Subsidiary owning the Equity Interests of such new Restricted Subsidiary, shall
promptly execute and deliver to the Administrative Agent such amendments to the
Pledge Agreements of the applicable Loan Party as the Administrative Agent deems
necessary or advisable in order to grant to the Administrative Agent, for the
benefit of the Lenders, a perfected first priority security interest in the
Equity Interests of such new Restricted Subsidiary, (ii) in the case of any such
new Restricted Subsidiary, such new Restricted Subsidiary shall promptly execute
and deliver to the Administrative Agent a Guaranty, Pledge Agreement, Security
Agreement and, if necessary, an Intellectual Property Security Agreement, (iii)
the applicable Loan Party owning Equity Interests of the new Restricted
Subsidiary and such new Restricted Subsidiary shall deliver any certificates
representing the Equity Interests of such new Restricted Subsidiary and any
Restricted Subsidiary of such new Restricted Subsidiary, respectively, together
with undated stock powers, in blank, executed and delivered by a duly authorized
officer of the applicable Loan Party, (iv) the applicable Loan Party owning
Equity Interests of the new Restricted Subsidiary and such new Restricted
Subsidiary shall take such other actions as shall be necessary or advisable to
grant to the Administrative Agent for the benefit of the Lenders a perfected
first priority security interest in the assets of, and Equity Interests in, such
new Restricted Subsidiary, including, without limitation, the filing of such
Uniform Commercial Code financing statements as may be requested by the
Administrative Agent, and (v) if requested by the Administrative Agent, the
Borrower shall cause to be delivered to the Administrative Agent legal opinions
relating to the matters described in the preceding clauses (i), (ii), (iii) and
(iv), which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent.
(c) With respect to any newly acquired assets or transfers of assets
to the Borrower or a Restricted Subsidiary (other than: (A) Equity Interests in
Unrestricted Subsidiaries, and (B) minority Equity Interests in Persons that are
not Subsidiaries, acquired in accordance with and pursuant to Section 8.8(b), if
the Borrower or Restricted Subsidiary, as the case
75
may be, is contractually prohibited from creating a Lien in such minority Equity
Interests), promptly after acquiring or receiving any such asset, execute and
deliver or cause to be delivered to the Administrative Agent in a form
reasonably acceptable to the Administrative Agent (i) one or more Mortgages
(unless otherwise agreed by the Administrative Agent), Pledge Agreements,
Security Agreements and/or Intellectual Property Security Agreements which grant
to the Administrative Agent a first priority perfected security interest in such
assets (subject, except for Equity Interests, to any prior Liens permitted by
Section 8.3 and as otherwise provided in the Security Agreements and
-----------
Intellectual Property Security Agreements) and (ii) such additional agreements
and other documents as the Administrative Agent reasonably deems necessary to
establish a valid, enforceable and perfected first priority security interest in
such Collateral including but not limited to Collateral consisting of
Intellectual Property (subject, except for Equity Interests, to any Liens
permitted by Section 8.3 and as otherwise provided in the Security
-----------
Agreements and Intellectual Property Security Agreements).
(d) Upon request of the Administrative Agent, promptly execute and
deliver or cause to be executed and delivered to the Administrative Agent in a
form reasonably acceptable to the Administrative Agent (i) one or more
Mortgages, Pledge Agreements, Security Agreements and/or Intellectual Property
Security Agreements which grant to the Administrative Agent a first priority
perfected security interest (subject, except for Equity Interests, to any Liens
permitted by Section 8.3 and as otherwise provided in the Security Agreements
-----------
and Intellectual Property Security Agreements) in such Collateral of the
Borrower or a Restricted Subsidiary, including Equity Interests of direct or
indirect Restricted Subsidiaries, as shall be specified by the Administrative
Agent and (ii) such additional agreements and other documents as the
Administrative Agent reasonably deems necessary to establish a valid,
enforceable and perfected first priority security interest in such property or
Equity Interests.
7.10 Use of Proceeds. The Borrower shall use the proceeds of the
---------------
Loans and the Letters of Credit only (i) to finance a portion of the costs for
the acquisition of all of the stock of Atlanta, (ii) to fund Permitted
Acquisitions and (iii) for working capital and general corporate purposes.
7.11 New Restricted Subsidiaries. Immediately upon the creation or
---------------------------
acquisition thereof, the Borrower shall notify the Administrative Agent about
any newly created or acquired Restricted Subsidiary and shall provide the
Administrative Agent with the Loan Documents required pursuant to Section 7.9
-----------
and an updated Schedule 5.14.
-------------
7.12 Taxes. The Loan Parties shall file all necessary and material
-----
Tax Returns and pay when due and any and all material Taxes. Notwithstanding
anything to the contrary contained in the Mortgages, the Loan Parties shall not
be in default of any Mortgage for the failure to pay any Taxes due with respect
to the property covered thereby so long as such Taxes are being contested in
good faith by appropriate proceedings and with respect to which adequate
reserves are being maintained in accordance with GAAP.
7.13 Further Assurances. Each Loan Party shall make, execute or
------------------
endorse, and acknowledge and deliver or file, or cause the same to be done, all
such notices, certifications,
76
documents, instruments and agreements, and shall take or cause to be taken such
other actions as the Administrative Agent may, from time to time, deem
reasonably necessary or appropriate in connection with this Agreement or any of
the other Loan Documents and the obligation of such Loan Party to carry out the
terms and conditions of this Agreement and the other Loan Documents to which it
is a party, including, without limitation, each Loan Party shall perform such
acts and duly authorize, execute, acknowledge, deliver, file and record such
additional assignments, security agreements, pledge agreements, deeds of trust,
mortgages, financing statements, and other agreements, documents, instruments
and certificates as the Administrative Agent may deem reasonably necessary or
appropriate in order to create, perfect and maintain the Liens in favor of the
Administrative Agent for the ratable benefit of the Lenders in and to the
Collateral and preserve and protect the Rights of the Lenders hereunder, under
the other Loan Documents and in and to the Collateral. Each Loan Party
acknowledges that certain transactions contemplated by this Agreement and the
other Loan Documents, and certain actions which may be taken by the
Administrative Agent or the Lenders in the exercise of their Rights under this
Agreement or any other Loan Document, may require the consent of the FCC. If the
Administrative Agent reasonably determines that the consent of the FCC is
required in connection with the execution, delivery or performance of any of the
aforesaid documents or any documents delivered to the Administrative Agent or
the Lenders in connection therewith or as a result of any action which may be
taken or be proposed to be taken pursuant thereto, then each Loan Party, at its
sole cost and expense, shall use its best efforts to secure such consent and to
cooperate with the Administrative Agent and the Lenders in any such action taken
or proposed to be taken by the Administrative Agent or any Lender.
7.14 Appraisals of Collateral. If at any time the Administrative
------------------------
Agent reasonably determines that it must have current appraisals of any of the
Collateral to comply with any Law, upon request by the Administrative Agent
(which request shall not be made more frequently than once every 12 months), the
Borrower shall cooperate with the Administrative Agent to enable the
Administrative Agent to obtain appraisals of the Collateral, the cost of which
shall be paid by the Borrower.
SECTION 8. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as any Commitment remains in
effect, any Loan or L/C Obligation or any other monetary Obligation under any
other Loan Document is outstanding, or is due and payable to any Lender or the
Administrative Agent hereunder or under any other Loan Document, the Borrower
shall not, and the Borrower shall not permit any of the Restricted Subsidiaries
to:
8.1 Financial Condition Covenants.
-----------------------------
(a) Capital Expenditures. Permit Capital Expenditures of the
--------------------
Borrower and the Restricted Subsidiaries at any time to exceed the sums of:
(i) $1,000,000 for each New Radio Market, provided that such amount is
expended within two calendar years of the Borrower's or Restricted
Subsidiary's entry into such market, (ii) during any fiscal year set forth
below to be greater than the amounts set forth opposite such fiscal years
below:
77
Fiscal Year Ended Amount
----------------- ------
1999 $3,500,000
2000 and thereafter $1,000,000
In the event that the amount of Capital Expenditures made by the
Borrower and the Restricted Subsidiaries during any period set out in
clause (ii) above is less than the Capital Expenditure limitation for such
period set forth above, then the difference between such limitation and the
amount of Capital Expenditures actually expended shall be added to the
Capital Expenditure limitation for the next such period, provided that in
--------
no event shall any such addition be used in determining any additions to
any subsequent period.
(b) Interest Coverage Ratio. Permit the Interest Coverage Ratio at
-----------------------
any time during any period set forth below to be less than the ratio set
forth opposite such period:
Period Ratio
------ -----
January 1, 1999 through and including 2.00 to 1.00
December 31, 2001
January 1, 2002 and thereafter 2.25 to 1.00
(c) Leverage Ratio. Permit the Leverage Ratio at any time during any
--------------
period set forth below to be more than the ratio set forth opposite such
period:
Period Ratio
------ -----
January 1, 1999, through and 7.00 to 1.00
including
December 30, 1999
December 31, 1999, through and 6.75 to 1.00
including March 30, 2000
March 31, 2000 through and 6.50 to 1.00
including
June 29, 2000
June 30,2000 through and 6.00 to 1.00
including
September 30, 2000
October 1, 2000 through and 5.50 to 1.00
including
March 31, 2001
April 1, 2001 through and 5.00 to 1.00
including
September 30, 2001
78
October 1, 2001 through and 4.75 to 1.00
including
March 31, 2002
April 1, 2002 through and 4.50 to 1.00
including
December 31, 2002
January 1, 2003 4.00 to 1.00
and thereafter
(d) Senior Leverage Ratio. Permit the Senior Leverage Ratio at any
---------------------
time during any period set forth below to be more than the ratio set forth
opposite such period:
Period Ratio
January 1, 1999 through and including 4.00 to 1.00
September 30, 1999
October 1, 1999 through and including 3.75 to 1.00
December 31, 1999
January 1, 2000 through and including 3.50 to 1.00
December 31, 2000
January 1, 2001 and thereafter 2.25 to 1.00
(e) Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage
---------------------------
Ratio at any time to be less than 1.25 to 1.00
8.2 Limitation on Indebtedness and Preferred Stock.
-----------------------------------------------
Create, incur, assume or suffer to exist any Indebtedness of the Borrower
or any Restricted Subsidiary of the Borrower or issue any Preferred Stock,
except:
(a) Indebtedness under this Agreement or any other Loan Document;
(b) intercompany Indebtedness by and among the Borrower and any of its
Wholly Owned Restricted Subsidiaries;
(c) in the case of the Borrower, Interest Hedge Agreements entered
into with the Lenders or any of them for the purpose of hedging against
interest rate fluctuations with respect to variable rate Indebtedness of
the Borrower or any of the Restricted Subsidiaries;
(d) (i) in the case of the Borrower, Indebtedness in respect of the
Senior Subordinated Indebtedness and (ii) in the case of the Restricted
Subsidiaries, Indebtedness in respect of the Senior Subordinated Guaranties
as in effect on the date hereof;
79
(e) provided no Default or Event of Default shall have occurred and be
--------
continuing either before or immediately after giving effect to the
incurrence thereof, the Borrower may issue the New Exchange Debentures so
long as (i) such Debentures (A) are unsecured, (B) have a final maturity
and a weighted average life no earlier and no shorter than the Senior
Subordinated Indebtedness, (C) the terms and conditions applicable thereto
(including but not limited to the subordination provisions thereof) shall
be no more favorable to the holders or lenders of such Subordinated Debt
than the terms, conditions and provisions as are applicable to the Senior
Subordinated Indebtedness, (D) the Guaranty Obligations of the Restricted
Subsidiaries, if any, relating thereto are no more favorable to the lenders
of such Subordinated Debt than the Senior Subordinated Guaranties, and (F)
the New Exchange Debentures are issued only in exchange for, and against
the cancellation of, shares of New Preferred Stock and (ii) the Borrower
has previously delivered to each of the Lenders updated versions of the
five year projections for the Borrower and the Restricted Subsidiaries
delivered to the Administrative Agent pursuant to Section 6.1(l)(ii),
------------------
demonstrating that the Borrower will be in compliance with the Interest
Coverage Ratio for the 12 month period following the issuance of such New
Exchange Debentures;
(f) Indebtedness of the Borrower and the Restricted Subsidiaries of up
to $2,500,000 in the aggregate at any time outstanding consisting of
Purchase Money Indebtedness and/or Capital Lease Obligations;
(g) Indebtedness existing on the Effective Date and set forth on
Schedule 8.2;
------------
(h) Indebtedness of the Borrower or any Restricted Subsidiary
consisting of Permitted Sales Representations in each case incurred in
connection with the disposition of any assets of the Borrower or any
Restricted Subsidiary;
(i) without duplication of the terms of Section 8.12, New Preferred
------------
Stock, and
(j) unsecured Indebtedness of the Borrower of up to $5,000,000 in the
aggregate at any time outstanding.
8.3 Limitation on Liens. Create, incur, assume or suffer to exist
-------------------
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Customary Permitted Liens;
(b) Liens created pursuant to the Security Documents;
(c) any attachment, prejudgment or judgment Lien in existence less
than sixty consecutive calendar days after the entry thereof, or with
respect to which execution has been stayed, or with respect to which
payment in full above any applicable customary deductible is covered by
insurance or a bond;
80
(d) Liens securing up to $2,500,000 in the aggregate at any time
outstanding of Purchase Money Indebtedness and Capital Lease Obligations
permitted under Section 8.2(f); and
--------------
(e) Liens securing up to $100,000 of Indebtedness in the aggregate at
any time outstanding.
8.4 Limitation on Fundamental Changes. Enter into any merger,
---------------------------------
consolidation or amalgamation with any Person, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or convey, sell, lease,
assign, transfer or otherwise dispose of, all or substantially all of its
property, business or assets to any Person, except:
(a) a Restricted Subsidiary (other than a License Subsidiary) may
merge into or be acquired by the Borrower if the Borrower is the survivor
thereof;
(b) a Restricted Subsidiary (other than a License Subsidiary) may
merge into or be acquired by a Wholly Owned Restricted Subsidiary if the
Wholly Owned Restricted Subsidiary is the survivor thereof;
(c) the Borrower or any Restricted Subsidiary (other than a License
Subsidiary) may sell, lease, transfer or otherwise dispose of any or all of
its assets in a transaction permitted under Section 8.5;
-----------
(d) in connection with Permitted Acquisitions where the Borrower or a
Wholly Owned Restricted Subsidiary is the survivor thereof; and
(e) a License Subsidiary may merge into or be acquired by another
License Subsidiary.
Notwithstanding anything to the contrary contained in the foregoing, no License
Subsidiary shall own or hold any assets other than Operating Agreements and FCC
Licenses and other Necessary Authorizations relating to the Stations or engage
in any business other than the ownership (or holding) and maintenance of
Operating Agreements and FCC Licenses.
8.5 Limitation on Sale of Assets. Convey, sell, lease, assign,
----------------------------
exchange, transfer or otherwise dispose of any of its property, business or
assets (including, without limitation, receivables and leasehold interests but
excluding Equity Interests of the Borrower) (including by way of a Sale and
Leaseback Transaction) other than in the ordinary course of business, or issue
or sell Equity Interests of any of the Restricted Subsidiaries (other than in
connection with its formation and then only to the Borrower or another
Restricted Subsidiary), in each case, whether by a single transaction or a
series of related transactions, to any Person (each of the foregoing, a
"Disposition"), except:
------------
(a) Dispositions of property or assets (other than Equity Interests)
between the Borrower and Wholly Owned Restricted Subsidiaries or between
Wholly Owned Restricted
81
Subsidiaries provided that in the case of the Borrower, such Disposition is
--------
less than substantially all of its assets;
(b) the sale of capital stock of Unrestricted Subsidiaries; and
(c) other Dispositions of property or assets (other than Equity
Interests), provided that such Disposition is less than substantially all
--------
of the assets of the Borrower or any Restricted Subsidiary, as the case may
be, and provided further that all of the following conditions are
--------
satisfied: (i) the Borrower or such Restricted Subsidiary receives
consideration at the time of such Disposition at least equal to the Fair
Market Value of the assets subject to such Disposition, as determined and
approved by the Board of Directors of the Borrower in the case of such
Dispositions with a Fair Market Value of $1,000,000 or more, and at least
80% of the consideration thereof received by the Borrower or such
Restricted Subsidiary is in the form of cash, (ii) any such Disposition
shall be on a non-recourse basis, except that the Borrower or such
Restricted Subsidiary may make Permitted Sale Representations, (iii) no
Default or Event of Default shall have occurred and be continuing either
before or immediately after the consummation of such transaction and (iv)
the Borrower shall, to the extent required, pay the proceeds to the
Administrative Agent in accordance with Section 4.2(d) when and if due.
--------------
Upon request by and at the expense of the Borrower, the Administrative Agent
shall immediately release any Liens arising under the Security Documents with
respect to any Collateral which is sold or otherwise disposed of in compliance
with the terms of Section 8.5(b).
--------------
8.6 Limitation on Restricted Payments; Other Payment Limitations.
------------------------------------------------------------
Make any Restricted Payments, except (a) repurchases of Common Equity of the
Borrower from any employee of the Borrower (other than a Principal Shareholder)
whose employment with the Borrower or any Restricted Subsidiary has ceased,
provided that the aggregate amount of such repurchases shall not exceed
--------
$1,000,000 in the aggregate during any fiscal year and provided further that a
--------
Responsible Officer of the Borrower delivers a certificate to and in favor of
the Administrative Agent and the Lenders certifying that no Default or Event of
Default shall have occurred and be continuing either before or immediately after
the making of such Restricted Payment; and (b) the repurchase or redemption of
all of the Senior Preferred Stock and accrued dividends thereon outstanding on
the Initial Effective Date, concurrently with the closing of the initial Public
Equity Offering of the Borrower and with a portion of the proceeds therefrom.
8.7 Limitation on Acquisitions. Purchase or enter into any agreement
--------------------------
(including letters of intent other than letters of intent that do not provide
for a deposit or payment by the Borrower or any Restricted Subsidiary of more
than $20,000 individually or $100,000 in the aggregate at any time for all such
letters of intent then in effect) to purchase or option to purchase any stock,
bonds, notes, debentures or other securities of, or any assets of, in each case
to the extent such purchase would involve all or substantially all of a radio
broadcasting station of, or a business unit of, any Person (collectively,
"Acquisitions") without the prior written consent of the Majority Lenders;
-------------
provided, however, that: (a) the Borrower may enter into purchase contracts for
--------
(i) the WDYL Acquisition on the terms set out in the in the Second Amendment to
Credit Agreement and
82
Limited Waiver among the Lenders and the Borrower dated February 9, 1999, (iii)
the WFUN Acquisition on the terms set out in the Limited Waiver among the
Lenders and the Borrower dated November 23, 1998, (iv) the WKJS Acquisition and
the WSOJ Acquisition on the terms described in Schedule 8.7, and (v) the XXXX
------------
Acquisition on the terms set out in the Limited Waiver among the Lenders and the
Borrower (the foregoing permissions being limited to the entering into such
contracts and the payment of xxxxxxx money deposits, but not extending to the
Borrower's closing of any such Acquisition), provided in the case of the XXXX
--------
Acquisition that the terms and provisions of the related Asset Purchase
Agreement, escrow deposit agreement and related documentation are satisfactory
in form and substance to the Administrative Agent and the Lenders; (b) the
Borrower may consummate the Atlanta Acquisition and the Dogwood Acquisition, and
(c) so long as (i) no Default or Event of Default shall have occurred and be
continuing either immediately before or immediately after such Acquisition, (ii)
the Borrower has closed or is closing concurrently with such Acquisition its
initial Public Equity Offering and received net cash proceeds therefrom in an
amount not less than $50,000,000 (excluding any amounts expended out of the
proceeds of such Offering used to repurchase the Senior Preferred Stock and the
Warrants referred to in clause (iii) below) and (iii) all of the Senior
Preferred Stock and accrued dividends thereon outstanding on the Initial
Effective Date shall have been repurchased or is being repurchased concurrently
with such Acquisition and all of the Warrants outstanding on the Initial
Effective Date shall have been exercised for common stock of the Borrower
pursuant to the terms and provisions of the Warrant Certificates as in effect on
the Initial Effective Date:
(A) the Borrower may make Acquisitions of radio broadcasting stations (or
100% of the capital stock of any Person owning radio broadcasting stations)
("Industry Acquisitions"), provided that, (x) concurrently with such
--------------------- --------
Acquisition, such Person becomes a Wholly Owned Restricted Subsidiary of
the Borrower, (y) the total consideration for Industry Acquisitions
(excluding the Allur Acquisition and the Xxxx Acquisition) singly or in the
aggregate do not exceed $50,000,000 in the aggregate in the period
beginning on the Initial Effective Date and continuing through the term of
this Agreement and (z) such Acquisitions are in markets ranked by Arbitron
as one of the 30 largest markets in the United States
(the transactions described in clause (A) above or otherwise permitted by the
Majority Lenders being herein referred to collectively as "Permitted
---------
Acquisitions").
------------
8.8 Investments. Make any Investment in any Person, other than:
-----------
(a) Permitted Investments;
(b) provided no Default or Event of Default shall have occurred and be
--------
continuing both before and immediately after the making of such Investment,
Investments after the Initial Effective Date in an amount not to exceed
$5,000,000 in the aggregate over the term of this Agreement; and
(c) Permitted Acquisitions.
83
8.9 Limitation on Transactions with Affiliates. (a) The Borrower
------------------------------------------
shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, sell, lease, transfer or otherwise dispose of any of its properties
or assets to, or purchase any property or assets from, or enter into any
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate of the Borrower or any Restricted Subsidiary (each of
the foregoing, an "Affiliate Transaction"), unless (i) such Affiliate
---------------------
Transaction is on terms that are no less favorable to the Borrower or the
relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by the Borrower or such Restricted Subsidiary with a non-
Affiliated Person, (ii) such Affiliate Transaction is approved by a majority of
the disinterested members of the Borrower's Board of Directors and (iii) the
Borrower delivers to the Administrative Agent (A) with respect to any Affiliate
Transaction involving aggregate payments in excess of $1,000,000, an Officers'
Certificate certifying that such Affiliate Transaction complies with clauses (i)
and (ii) above and (B) with respect to any Affiliate Transaction (or series of
related transactions) with an aggregate value in excess of $5,000,000, an
opinion from a nationally recognized investment bank to the effect that the
transaction is fair to the Borrower or the Restricted Subsidiary, as the case
may be, from a financial point of view.
(b) The provisions of paragraph (a) above shall not prohibit:
(i) employment arrangements (including customary benefits
thereunder) entered into by the Borrower or any of its Restricted
Subsidiaries in the ordinary course of business and consistent with the
past practice of the Borrower or such Restricted Subsidiary;
(ii) transactions solely between or among the Borrower and its
Wholly Owned Restricted Subsidiaries or solely between or among Wholly
Owned Restricted Subsidiaries;
(iii) transactions permitted under Section 8.6;
-----------
(iv) any agreement as in effect on the Initial Effective Date and
listed on Schedule 8.9 or any amendment thereto or any transaction
------------
contemplated thereby (including pursuant to any amendment thereto) and any
replacement agreement thereto so long as any such amendment or replacement
agreement is not more disadvantageous to the Lenders in any material
respect than the original agreement as in effect on the Initial Effective
Date;
(v) the existence of, or the performance by the Borrower or any
of the Restricted Subsidiaries of its obligations under the terms of, any
stockholders agreement (including any registration rights agreement or
purchase agreement related thereto) to which it is a party on the Initial
Effective Date;
(vi) services provided to any Unrestricted Subsidiary of the
Borrower for fees approved by a majority of the disinterested members of
the Board of Directors of the Borrower; and
84
(vii) subject to the terms of this Agreement, including but not
limited to Sections 4.2(e), 8.2, 8.5 and 8.12, the issuance, sale or other
--------------- --- --- ----
disposition of any Equity Interest (other than Disqualified Stock) of the
Borrower, including any equity-related agreements relating thereto such as
registration rights and voting agreements so long as such agreements do not
result in such Equity Interests being Disqualified Stock.
8.10 Limitation on Restrictions on Restricted Subsidiary
---------------------------------------------------
Distributions. Enter into or suffer to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted Subsidiary of the
Borrower to (a) pay dividends or make any other distributions in respect of any
Equity Interests of such Restricted Subsidiary held by, or pay any Indebtedness
owed to, the Borrower or any other Restricted Subsidiary of the Borrower, (b)
make loans or advances to the Borrower or any other Restricted Subsidiary of the
Borrower or (c) transfer any of its assets to the Borrower or any other
Restricted Subsidiary of the Borrower, except any encumbrance or restriction
existing under or by reason of:
(i) applicable Law;
(ii) by reason of customary nonassignment provisions in leases
entered into in the ordinary course of business and consistent with past
practices;
(iii) Purchase Money Indebtedness for property acquired in the
ordinary course of business that only impose restrictions on the property
so acquired;
(iv) this Agreement;
(v) agreements relating to the financing of the acquisition of
real or tangible personal property acquired after the Initial Effective
Date, provided that such encumbrance or restriction relates only to the
--------
property that is acquired and, in the case of any encumbrance or
restriction that constitutes a Lien, such Lien constitutes a Purchase Money
Lien; or
(vi) any restriction or encumbrance contained in contracts for
sale of assets in respect of the assets being sold pursuant to such
contract.
8.11 Limitation on Lines of Business. Enter into any business, either
-------------------------------
directly or through any Restricted Subsidiary other than the radio broadcast
business and activities directly related thereto (each, a "Permitted Line of
-----------------
Business"); provided, however, that no more than 3% of the fair market value of
--------
the assets of the Borrower and the Restricted Subsidiaries (without duplication)
may, at any time, be in other media or entertainment businesses.
8.12 Limitation on Sale or Issuance of Equity Interests. Issue, sell,
--------------------------------------------------
assign, pledge or otherwise encumber or dispose of any shares of Equity
Interests of the Borrower or the Restricted Subsidiaries, except (a) the
Restricted Subsidiaries may issue or sell Equity Interests to the Borrower, (b)
the Equity Interests of the Borrower and the Restricted Subsidiaries may be
pledged pursuant to the Pledge Agreements, (c) the Borrower may issue common
stock in connection with
85
its initial Public Equity Offering, provided that concurrently with the closing
--------
of such initial Public Equity Offering, the Borrower shall have repurchased all
of the Senior Preferred Stock outstanding on the Effective Date (other than the
Senior Preferred Stock issued in connection with exercise of the Allied Warrant)
with a portion of the proceeds from such initial Public Equity Offering or the
sale of the New Preferred Stock and provided, further that all of the Warrants
--------
outstanding on the Initial Effective Date shall have been exercised for common
stock of the Borrower pursuant to the terms and provisions of the Warrant
Certificates as in effect on the Initial Effective Date, (d) prior to the
closing of the Borrower's initial Public Equity Offering, the Borrower may issue
common stock of the Borrower to employees of the Borrower or the Restricted
Subsidiaries or to the Investors upon the exercise of their Warrants, and in
connection with the Atlanta Acquisition so long as all such common stock (other
than common stock issued to Allied Capital Corporation or Allied Investment
Corporation in connection with the Atlanta Acquisition) is pledged to the
Administrative Agent for the benefit of the Lenders as security for the
Obligations, (e) in connection with the exercise by Allied of the Allied
Warrant, the Borrower may issue to Allied a number of shares of the Series A 15%
Cumulative Redeemable Preferred Stock of Borrower, par value $0.01 having a
liquidation value of up to $4,000,000, provided, that no such Senior Preferred
--------
Stock shall be issued until Allied has assumed in writing all the obligations
and liabilities under, and become a party to, the Standstill Agreement as an
"Investor" thereunder and (f) provided that (i) no Default or Event of Default
--------
shall have occurred and be continuing either before or immediately after such
issuance or sale, (ii) the Borrower has closed its initial Public Equity
Offering, (iii) all of the Senior Preferred Stock outstanding on the Initial
Effective Date (other than the Senior Preferred Stock issued in connection with
the exercise of the Allied Warrant) has been (or, concurrently with the sale of
the New Preferred Stock will be) repurchased or redeemed and all of the Warrants
outstanding on the Initial Effective Date have been exercised, the Borrower may
issue or sell common stock or New Preferred Stock, subject to the Borrower's
compliance with the provisions of Sections 4.2(e).
-------- ------
8.13 Limitation on Material Agreements. (a) No Loan Party will enter
---------------------------------
into any amendment, modification or waiver without the prior written consent of
the Majority Lenders (i) of any term or provision of the Senior Subordinated
Debt Documents, the Standstill Agreement, the New Exchange Debenture Indenture,
or the Amended and Restated Certificate of Incorporation that is adverse in any
material respect to rights of the Lenders under the Loan Documents, or (ii) of
any term or provision of the Securities Purchase Agreement, the Warrant
Agreement, the Exchange Agreement, the Preferred Stockholders' Agreement or any
other Preferred Stock Document (or document governing the rights and preferences
of the New Preferred Stock or of the holders thereof) that adds more
restrictions upon, or events of default with respect to, or is otherwise less
favorable in any respect to, the Borrower or that otherwise is in conflict with
any of the covenants of the Borrower set forth in this Agreement and the other
Loan Documents, other than waivers of compliance by any Loan Party of the terms
of any of such agreements. Notwithstanding anything to the contrary contained
in this Section 8.13, the Borrower may amend the Amended and Restated
------------
Certificate of Incorporation in order to authorize additional shares of common
stock of the Borrower in connection with the initial Public Equity Offering of
the Borrower and to authorize the New Preferred Stock.
(b) No Loan Party will (i) enter into any LMA Agreement other than (w)
a LMA Agreement with Broadcast Holdings, Inc. covering Station WYCB-AM (x) a
Time Brokerage
86
Agreement between Atlanta and Dogwood dated April ___, 1997 and
(y) LMA Agreements allowing the Borrower or any Restricted Subsidiary to operate
radio stations to be acquired in connection with Permitted Acquisitions, or (ii)
except as required by the FCC, agree to any extension or termination of or
amendment, modification or waiver of any material term of any such LMA
Agreement, in each case without the prior written consent of the Majority
Lenders. The Borrower agrees to promptly deliver to the Administrative Agent a
copy of each LMA Agreement entered into by a Borrower or a Restricted Subsidiary
on or after the Initial Effective Date.
(c) No Restricted Subsidiary shall operate, manage or direct the day-
to-day operations of any Station unless it has entered into an Operating
Agreement with a License Subsidiary and such Operating Agreement is in full
force and effect.
8.14 Certain Intercompany Matters. Fail to (i) satisfy customary
----------------------------
formalities with respect to organizational separateness, including, without
limitation, (x) the maintenance of separate books and records and (y) the
maintenance of separate bank accounts in its own name; (ii) act solely in its
own name and through its authorized officers and agents, (iii) commingle any
money or other assets of any Unrestricted Subsidiary with any money or other
assets of the Borrower or any of the Restricted Subsidiaries; or (iv) take any
action, or conduct its affairs in a manner, which could reasonably be expected
to result in the separate organizational existence of the Borrower, each
Unrestricted Subsidiary and the Restricted Subsidiaries being ignored under any
circumstance.
8.15 Preferred Stock Documents and New Preferred Stock. After the
-------------------------------------------------
closing of the initial Public Equity Offering, permit any of the Preferred Stock
Documents, or any of the documents governing the rights and preferences of the
New Preferred Stock or of the holders thereof, to contain any redemption rights
with respect to the holders of the Senior Preferred Stock or of the New
Preferred Stock prior to one year after the Termination Date (except with
respect to a change of control as defined in the Preferred Stockholders'
Agreement) or to contain any rights whatsoever to cause a sale of any Loan
Party.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or
the Borrower shall fail to pay any interest on any Loan or Reimbursement
Obligation, or any other amount payable hereunder, on or prior to the date
which is five days (or, if later, three Business Days) after any such
interest or other amount becomes due in accordance with the terms hereof;
or
(b) Any representation or warranty made or deemed made by the Borrower
or any other Loan Party herein or in any other Loan Document shall prove to
have been incorrect in any material respect on or as of the date made or
deemed made; or
87
(c) The Borrower or any other Loan Party shall default in the
observance or performance of any agreement contained in Sections 7.4, 7.7,
------------ ---
7.9, 7.10 and 7.11 or Section 8 of this Agreement or in the Pledge
--- ---- ---- ---------
Agreements; or
(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in paragraphs
(a) through (c) of this Section), and such default shall continue
unremedied for a period of 30 days after the Administrative Agent shall
have given the Borrower notice thereof; or
(e) (i) The Borrower or any of the Subsidiaries shall default in
making any payment of any principal of any Indebtedness (including, without
limitation, any Guarantee Obligation, but excluding the Loans and
Reimbursement Obligations) beyond the period of grace or cure, if any,
provided in the instrument or agreement under which such Indebtedness was
created; or (ii) the Borrower or any of the Subsidiaries shall default in
making any payment of any interest on any such Indebtedness beyond the
period of grace or cure, if any, provided in the instrument or agreement
under which such Indebtedness was created; or (iii) the Borrower or any of
the Subsidiaries shall default in the observance or performance of any
other agreement or condition relating to any such Indebtedness or contained
in any instrument or agreement evidencing, securing or relating thereto, or
any other event shall occur or condition exist, the effect of which default
or other event or condition is to cause, or to permit the holder or
beneficiary of such Indebtedness (or a trustee or agent on behalf of such
holder or beneficiary) to cause, with the giving of notice if required,
such Indebtedness to become due or to be purchased or repurchased prior to
its stated maturity (or, in the case of any such Indebtedness constituting
a Guarantee Obligation, to become payable prior to the stated maturity of
the primary obligation covered by such Guarantee Obligation); provided that
--------
a default, event or condition described in clause (i), (ii) or (iii) of
this paragraph (e) shall not constitute a Default or an Event of Default
under this Agreement unless, at the time of such default, event or
condition one or more defaults, events or conditions of the type described
in clauses (i), (ii) and (iii) of this paragraph (e) shall have occurred
with respect to Indebtedness the outstanding principal amount of which
exceeds in the aggregate $1,000,000; or
(f) (i) The Borrower or any of the Subsidiaries shall commence any
case, proceeding or other action (A) under any existing or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or
its debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial
part of its assets, or the Borrower or any of the Subsidiaries shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against the Borrower or any of the Subsidiaries any case,
proceeding or other action of a nature referred to in clause (i) above
which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a
88
period of 60 days; or (iii) there shall be commenced against the Borrower
or any of the Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results in
the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days from
the entry thereof; or (iv) the Borrower or any of the Subsidiaries shall
take any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or (v) the Borrower or any of the Subsidiaries shall generally
not, or shall be unable to, or shall admit in writing its inability to, pay
its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of
the Majority Lenders, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the Borrower or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Majority Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with respect
to a Plan; and in each case in clauses (i) through (vi) above, such event
or condition, together with all other such events or conditions, if any,
could reasonably be expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the
Borrower or any of the Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance or indemnities) of $1,000,000 or
more, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days after the entry
thereof; or
(i) (i) Any material provision of the Loan Documents shall cease, for
any reason, to be in full force and effect, or the Borrower or any other
Loan Party shall so assert or (ii) the Lien created by any of the Security
Documents shall cease to be enforceable and of the same effect and priority
purported to be created thereby; or
(j) A Change of Control shall occur or the Borrower; or
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(k) The occurrence of any of the following: (i) Borrower or any Loan
Party shall lose, fail to keep in force, suffer the termination, suspension
or revocation of or terminate, forfeit or suffer an amendment to any FCC
License or other material license at any time held by it, the loss,
termination, suspension or revocation of which could reasonably be expected
to have a Material Adverse Effect on the operations of any Loan Party or
any Loan Party's ability to perform its obligations under this Agreement or
the other Loan Documents; (ii) any proceeding shall be brought by any
Person challenging the validity or enforceability of any Necessary
Authorization of a Loan Party except when such proceeding could not
reasonably be expected to result in the loss of such Necessary
Authorization or to have a Material Adverse Effect; (iii) appropriate
proceedings for the renewal of any Necessary Authorization shall not be
commenced prior to the expiration thereof or if such Necessary
Authorization is not renewed or otherwise made available for the use of the
applicable Loan Party; (iv) any Loan Party shall fail to comply with the
Communications Act or any rule or regulation promulgated by the FCC and
such failure to comply results in a fine in excess of $1,000,000; (v) the
FCC shall materially and adversely modify any Necessary Authorization or
shall suspend, revoke or terminate or shall commence proceedings to
materially and adversely modify, suspend, revoke or terminate any Necessary
Authorization and such proceedings shall not be dismissed or discharged
within the earlier of twelve months from the commencement of such
proceeding or 30 days prior to any date set for any suspension, revocation
or termination; or (vi) any Contractual Obligation which is materially
necessary to the operation of the broadcasting operations of any Loan Party
shall be revoked or terminated and not replaced by a substitute reasonably
acceptable to the Majority Lenders within 30 days after such revocation or
termination; or
(l) Any breach or default shall occur under any of the Senior
Subordinated Debt Documents or the Senior Subordinated Indebtedness is
accelerated; or
(m) The occurrence of any of the following: (i) the Borrower shall
redeem, or the Investors shall exercise any right to demand that the
Borrower redeem, any shares of the Senior Preferred Stock, except as
otherwise expressly permitted hereunder, (ii) the occurrence of a
Redemption Event under the Preferred Stockholders' Agreement (unless
waived, at any time prior to an Acceleration hereunder, by the requisite
Investors thereunder) or (iii) the occurrence of any other event which
entitles the Investors to cause a sale of the Borrower; or
(n) the death, disability and/or incapacity (which disability or
incapacity renders such Person unable to discharge their respective duties
as an officer and/or director of the Borrower as previously performed by
such Person for a period of 90 consecutive days) of Xxxxxxx and Xxxxxx, and
a successor satisfactory to the Majority Lenders does not assume their
respective responsibilities and positions within 60 days of such death,
disability and/or incapacities;
(o) any Loan Party's on-the-air broadcasting operations are
interrupted at any time for more than 5 consecutive days, unless the
broadcasting operations of all or substantially all the radio stations in
the relevant market are also interrupted for a like period of time;
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(p) the Borrower shall fail to cause any computer application that is
material to its or any of the Restricted Subsidiaries' business and
operations to be year 2000 compliant, except to the extent that such
failure could not reasonably be expected to have a Material Adverse Effect;
(q) the consent of the FCC with respect to the Allur Acquisition shall
not have become a Final Order on or before June 30, 1999; or
(r) the consent of the FCC with respect to the Atlanta Acquisition or
the consent of the FCC with respect to the Dogwood Acquisition shall not
have become a Final Order on or before August 31, 1999.
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section 9 with respect to the
---------
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents (including, without
limitation, all amounts of L/C Obligations, whether or not the beneficiaries of
the then outstanding Letters of Credit shall have presented the documents
required thereunder) shall immediately become due and payable, and (B) if such
event is any other Event of Default, either or both of the following actions may
be taken: (i) with the consent of the Majority Lenders, the Administrative
Agent may, or upon the request of the Majority Lenders, the Administrative Agent
shall, by notice to the Borrower declare the Commitments to be terminated
forthwith, whereupon such Commitments shall immediately terminate; and (ii) with
the consent of the Majority Lenders, the Administrative Agent may, or upon the
request of the Majority Lenders, the Administrative Agent shall, by notice to
the Borrower, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement and the other Loan Documents
(including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) to be due and payable forthwith (an
"Acceleration"), whereupon the same shall immediately become due and payable.
-------------
With respect to all Letters of Credit with respect to which presentment for
honor shall not have occurred at the time of an Acceleration pursuant to this
paragraph, the Borrower shall at such time deposit in a cash collateral account
opened by the Administrative Agent an amount equal to the aggregate then undrawn
and unexpired amount of such Letters of Credit. Amounts held in such cash
collateral account shall be applied by the Administrative Agent to the payment
of drafts drawn under such Letters of Credit, and the unused portion thereof
after all such Letters of Credit shall have expired or been fully drawn upon, if
any, shall be applied to repay other Obligations of the Borrower hereunder and
under the other Loan Documents. After all such Letters of Credit shall have
expired or been fully drawn upon, all Reimbursement Obligations shall have been
satisfied, all Loans shall have been paid in full and no other Obligations shall
be due and payable, the balance, if any, in such cash collateral account shall
be returned to the Borrower (or such other Person as may be lawfully entitled
thereto).
Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
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SECTION 10. AGENTS
10.1 Appointment. Each Lender hereby irrevocably designates and
-----------
appoints the Administrative Agent as the administrative agent of such Lender
under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes the Administrative Agent, in such capacity, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement or any other Loan Document, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein, or
any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
10.2 Delegation of Duties. The Administrative Agent may execute any
--------------------
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent
shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
10.3 EXCULPATORY PROVISIONS. NEITHER THE AGENT NOR ANY OF ITS
----------------------
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS-IN-FACT OR AFFILIATES SHALL BE
(i) LIABLE FOR ANY ACTION LAWFULLY TAKEN OR OMITTED TO BE TAKEN BY IT OR SUCH
PERSON UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
(EXCEPT FOR ITS OR SUCH PERSON'S OWN GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR
BREACH OF THIS AGREEMENT) OR (ii) RESPONSIBLE IN ANY MANNER TO ANY OF THE
LENDERS FOR ANY RECITALS, STATEMENTS, REPRESENTATIONS OR WARRANTIES MADE BY THE
BORROWER OR ANY OFFICER THEREOF CONTAINED IN THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR IN ANY CERTIFICATE, REPORT, STATEMENT OR OTHER DOCUMENT REFERRED TO
OR PROVIDED FOR IN, OR RECEIVED BY THE AGENT UNDER OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR FOR THE VALUE, VALIDITY, EFFECTIVENESS,
GENUINENESS, ENFORCEABILITY OR SUFFICIENCY OF THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR FOR ANY FAILURE OF THE BORROWER TO PERFORM ITS OBLIGATIONS HEREUNDER
OR THEREUNDER. THE AGENT SHALL NOT BE UNDER ANY OBLIGATION TO ANY LENDER TO
ASCERTAIN OR TO INQUIRE AS TO THE OBSERVANCE OR PERFORMANCE OF ANY OF THE
AGREEMENTS CONTAINED IN, OR CONDITIONS OF, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR TO INSPECT THE PROPERTIES, BOOKS OR RECORDS OF THE BORROWER.
10.4 Reliance by the Administrative Agent. The Administrative Agent
------------------------------------
shall be entitled to rely, and shall be fully protected in relying, upon any
Note, writing, resolution, notice,
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consent, certificate, affidavit, letter, facsimile, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Majority Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Majority Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
10.5 Notice of Default. The Administrative Agent shall not be deemed
-----------------
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender
(except in the case of a Default under Section 9(a)) or the Borrower referring
------------
to this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the Administrative
Agent receives such a notice, the Administrative Agent shall give notice thereof
to the Lenders. The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the Majority
Lenders; provided that unless and until the Administrative Agent shall have
--------
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
10.6 Non-Reliance on the Administrative Agent and the Other Lenders.
--------------------------------------------------------------
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or affiliates
has made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Borrower, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and made its own decision to make
its Loans hereunder and enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon the Administrative Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrower. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative
93
Agent hereunder, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
10.7 INDEMNIFICATION. THE LENDERS AGREE TO INDEMNIFY THE AGENT IN ITS
---------------
CAPACITY AS SUCH (TO THE EXTENT NOT REIMBURSED BY THE BORROWER AND WITHOUT
LIMITING THE OBLIGATION OF THE BORROWER TO DO SO), RATABLY ACCORDING TO THEIR
RESPECTIVE SPECIFIED PERCENTAGES IN EFFECT ON THE DATE ON WHICH INDEMNIFICATION
IS SOUGHT (OR, IF INDEMNIFICATION IS SOUGHT AFTER THE DATE UPON WHICH THE LOANS
SHALL HAVE BEEN PAID IN FULL, RATABLY IN ACCORDANCE WITH THEIR SPECIFIED
PERCENTAGES IMMEDIATELY PRIOR TO SUCH DATE), FROM AND AGAINST ANY AND ALL
LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS,
COSTS, EXPENSES OR DISBURSEMENTS OF ANY KIND WHATSOEVER WHICH MAY AT ANY TIME
(INCLUDING, WITHOUT LIMITATION, AT ANY TIME FOLLOWING THE PAYMENT OF THE LOANS)
BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST THE AGENT IN ANY WAY RELATING TO
OR ARISING OUT OF, THE COMMITMENTS, THIS AGREEMENT, ANY OF THE OTHER LOAN
DOCUMENTS OR ANY DOCUMENTS CONTEMPLATED BY OR REFERRED TO HEREIN OR THEREIN OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR ANY ACTION TAKEN OR OMITTED
BY THE AGENT UNDER OR IN CONNECTION WITH ANY OF THE FOREGOING; PROVIDED THAT NO
--------
LENDER SHALL BE LIABLE FOR THE PAYMENT OF ANY PORTION OF SUCH LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS,
EXPENSES OR DISBURSEMENTS RESULTING FROM THE AGENT'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT. THE AGREEMENTS IN THIS SECTION SHALL SURVIVE THE PAYMENT OF THE
LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER.
10.8 The Administrative Agent in Its Individual Capacity. The
---------------------------------------------------
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to the Loans made by it, the Administrative
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
10.9 Successor Administrative Agent. (a) The Administrative Agent may
------------------------------
resign as the Administrative Agent upon 30 days' notice to the Lenders and the
appointment of a successor Administrative Agent as hereinafter provided. If the
Administrative Agent shall resign as the Administrative Agent under this
Agreement and the other Loan Documents, then, unless an Event
94
of Default shall have occurred and be continuing (in which case, the Majority
Lenders shall appoint a successor), the Borrower shall appoint from among the
Lenders a successor Administrative Agent for the Lenders, which successor
Administrative Agent shall be approved by the Majority Lenders (which approval
shall not be unreasonably withheld). If no successor Administrative Agent shall
have been so appointed by the Borrower (or in the case of an Event of Default,
by the Majority Lenders) and such successor Administrative Agent has not
accepted such appointment within 30 days after such resignation, then the
resigning Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, which successor Administrative Agent hereunder
shall be either a Lender or, if none of the Lenders is willing to serve as
successor Administrative Agent, a major international bank having combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as the Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall succeed to the rights, powers
and duties of the Administrative Agent, and the term "Administrative Agent"
shall mean such successor Administrative Agent effective upon such appointment
and approval, and the former Administrative Agent's rights, powers and duties as
the Administrative Agent shall be terminated, without any other or further act
or deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Loans. After any retiring Administrative
Agent's resignation as the Administrative Agent, the provisions of this Section
-------
10 shall inure to its benefit as to any actions taken or omitted to be taken by
--
it while it was the Administrative Agent under this Agreement and the other Loan
Documents.
(b) In the event that the Administrative Agent shall have breached any
of its material obligations to the Lenders hereunder, the Majority Lenders may
remove the Administrative Agent, effective on the date specified by them, by
written notice to the Administrative Agent and the Borrower. Upon any such
removal, the Borrower, provided that no Event of Default shall have occurred and
--------
be continuing (in which case the Majority Lenders shall make the appointment),
shall have the right to appoint a successor Administrative Agent, which
successor Administrative Agent shall be approved by the Majority Lenders (which
approval shall not be unreasonably withheld). If no successor Administrative
Agent shall have been so appointed by the Borrower (or in the case of an Event
of Default, by the Majority Lenders) and such successor Administrative Agent has
not accepted such appointment within 30 days after notification to the
Administrative Agent of its removal, then the retiring Administrative Agent may,
on behalf of the Lenders, appoint a successor Administrative Agent, which
successor Administrative Agent hereunder shall be either a Lender or, if none of
the Lenders is willing to serve as successor Administrative Agent, a major
international bank having combined capital and surplus of at least $500,000,000.
Such successor Administrative Agent, provided that no Event of Default shall
--------
have occurred and be continuing, shall be reasonably satisfactory to the
Borrower. Upon the acceptance of any appointment as the Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
this Agreement. The Borrower and the Lenders shall execute such documents as
shall be necessary to effect such appointment. After any retiring
Administrative Agent's removal hereunder as the Administrative Agent, the
provisions of this Section 10.9 shall inure to its benefit as to any actions
------------
taken or omitted to be taken by it while it was the Administrative Agent under
this Agreement and the other Loan Documents. If at any time there shall not be
a duly
95
appointed and acting Administrative Agent, the Borrower agrees to make each
payment due hereunder and under the Notes directly to the Lenders entitled
thereto during such time.
10.10 Other Agents. The Borrower and each Lender hereby covenant and
------------
agree that the Administrative Agent, the Syndication Agent and the Documentation
Agent shall not have any duties or responsibilities hereunder, or any fiduciary
relationship with the Borrower, the Administrative Agent or any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against the
Administrative Agent and the Syndication Agent, each in its capacity as such.
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. Neither this Agreement nor any other
----------------------
Loan Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 11.1. The
------------
Majority Lenders and each relevant Loan Party may, or, with the written consent
of the Majority Lenders, the Administrative Agent and each relevant Loan Party
may, from time to time, (a) enter into written amendments, supplements or
modifications hereto and to the other Loan Documents for the purpose of adding
any provisions to this Agreement or the other Loan Documents or changing in any
manner the rights of the Lenders or of the Loan Parties hereunder or thereunder
or (b) waive, on such terms and conditions as the Majority Lenders or the
Administrative Agent, as the case may be, may specify in such instrument, any of
the requirements of this Agreement or the other Loan Documents or any Default or
Event of Default and its consequences; provided, however, that no such waiver
-------- -------
and no such amendment, supplement or modification shall (i) reduce the amount or
extend the scheduled date of maturity of any Loan or of any installment thereof,
or reduce the stated rate of any interest or fee payable hereunder or extend the
scheduled date of any payment thereof or increase the amount or extend the
expiration date of any Commitment of any Lender, or make any change in the
method of application of any payment of the Loans specified in Section 4.2 or
-----------
Section 4.8, (ii) waive, extend or reduce any mandatory Commitment reduction
-----------
pursuant to Section 4.2, (iii) amend, modify or waive any provision of, this
-----------
Section 11.1 or reduce any percentage specified in the definition of Majority
------------
Lenders, or consent to the assignment or transfer by any Loan Party of any of
its rights and obligations under this Agreement and the other Loan Documents,
(iv) release the Collateral, except as expressly permitted in the Security
Documents and except for any Collateral which is permitted to be disposed of
pursuant to Section 8.5, all of which Collateral may be released by the
-----------
Administrative Agent pursuant to such applicable Security Document and pursuant
to Section 8.5, (v) amend, modify or waive any condition precedent to any
-----------
extension of credit set forth in Section 6, in each case of (i), (ii), (iii),
---------
(iv) and (v) above, without the written consent of all of the Lenders, (vi)
amend, modify or waive any provision of Section 10 without the written consent
----------
of the then Administrative Agent, or (vii) amend, modify or waive any provision
of Section 3 without the written consent of the Issuing Lender. Any such waiver
---------
and any such amendment, supplement or modification shall apply equally to each
of the Lenders and shall be binding upon the Loan Parties, the Lenders, the
Administrative Agent and all future holders of the Notes. In the case of any
waiver, the Loan Parties, the Lenders and the Administrative Agent shall be
restored to their former position and rights hereunder and under the other Loan
Documents, and any Default or Event of Default
96
waived shall be deemed to be cured and not continuing; but no such waiver shall
extend to any subsequent or other Default or Event of Default, or impair any
right consequent thereon.
11.2 Notices. All notices, requests and demands to or upon the
-------
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three Business Days after
being deposited in the mails, postage prepaid, or (c) in the case of delivery by
facsimile transmission, when sent and receipt has been confirmed, addressed as
follows in the case of the Borrower, the Subsidiaries and the Administrative
Agent, and as set forth in Schedule 1.1A (or, with respect to any Lender that is
-------------
an Assignee, in the applicable Assignment and Acceptance) in the case of the
other parties hereto, or to such other address as may be hereafter notified by
the respective parties hereto:
The Borrower: Radio One, Inc.
0000 Xxxxxxxx Xxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Chief Financial Officer
Fax: (000) 000-0000
with copies to:
Xxxxxx X. Xxxxxxx, President
Fax: (000) 000-0000
and
Xxxxx Xxxxxx, General Counsel
Fax: (000) 000-0000
The Administrative
Agent/Issuing Lender: NationsBank, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxx
Fax: (214) 000- 0000
provided that any notice, request or demand to or upon the Administrative Agent
--------
or the Lenders pursuant to Sections 2 or 3 shall not be effective until
---------- -
received.
97
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no
------------------------------
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties. All representations
------------------------------------------
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
11.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay
-----------------------------
or reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent, (b) to
pay or reimburse each Lender and the Administrative Agent for all its costs and
expenses reasonably incurred in connection with the enforcement or preservation
of any rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the reasonable fees and disbursements
of counsel to each Lender and of counsel to the Administrative Agent, (c)
without duplication of amounts payable pursuant to Sections 4.9 and 4.10, TO
------------ ----
PAY, INDEMNIFY, AND HOLD EACH LENDER AND THE AGENT HARMLESS FROM, ANY AND ALL
RECORDING AND FILING FEES AND ANY AND ALL LIABILITIES WITH RESPECT TO, OR
RESULTING FROM ANY DELAY IN PAYING, STAMP, EXCISE AND OTHER TAXES, IF ANY, WHICH
MAY BE PAYABLE OR DETERMINED TO BE PAYABLE IN CONNECTION WITH THE EXECUTION AND
DELIVERY OF, OR CONSUMMATION OR ADMINISTRATION OF ANY OF THE TRANSACTIONS
CONTEMPLATED BY, OR ANY AMENDMENT, SUPPLEMENT OR MODIFICATION OF, OR ANY WAIVER
OR CONSENT UNDER OR IN RESPECT OF, THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND
ANY SUCH OTHER DOCUMENTS, AND (D) WITHOUT DUPLICATION OF AMOUNTS PAYABLE
PURSUANT TO SECTIONS 4.9 AND 4.10, TO PAY, INDEMNIFY, AND HOLD EACH LENDER, EACH
------------ ----
ISSUING LENDER AND THE AGENT, AND THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, AFFILIATES, ADVISORS, AGENTS AND CONTROLLING PERSONS (EACH, AN
"INDEMNITEE"), HARMLESS FROM AND AGAINST ANY AND ALL OTHER LIABILITIES,
-----------
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS,
EXPENSES OR DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WITH RESPECT TO THE
EXECUTION, DELIVERY, ENFORCEMENT, PERFORMANCE AND ADMINISTRATION OF THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS AND ANY SUCH OTHER DOCUMENTS OR THE USE OF
THE PROCEEDS OF THE LOANS (ALL THE FOREGOING IN THIS CLAUSE
98
(D), COLLECTIVELY, THE "INDEMNIFIED LIABILITIES"), PROVIDED, THAT IT IS THE
----------------------- --------
INTENTION OF THE BORROWER TO INDEMNIFY THE INDEMNIFIED PARTIES HEREUNDER AGAINST
THEIR OWN NEGLIGENCE, AND FURTHER PROVIDED THE BORROWER SHALL HAVE NO OBLIGATION
HEREUNDER TO ANY INDEMNITEE WITH RESPECT TO INDEMNIFIED LIABILITIES ARISING FROM
THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF OR BREACH OF THIS AGREEMENT BY
SUCH INDEMNITEE. THE AGREEMENTS IN THIS SECTION SHALL SURVIVE REPAYMENT OF THE
LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER.
11.6 Successors and Assigns; Participations and Assignments. (a)
------------------------------------------------------
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, the Administrative Agent and their respective successors and
assigns, except that the Borrower may not assign or transfer any of its rights
or obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in accordance with applicable law, at any time
sell to one or more banks or other entities ("Participants") participating
------------
interests in any Loan or L/C Obligation owing to such Lender, any Commitment of
such Lender or any other interest of such Lender hereunder and under the other
Loan Documents. In the event of any such sale by a Lender of a participating
interest to a Participant, such Lender's obligations under this Agreement to the
other parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Loan for all purposes under this Agreement and the other Loan
Documents, and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. In no event
shall any Participant under any such participation have any right to approve any
amendment or waiver of any provision of any Loan Document, or any consent to any
departure by any Loan Party therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the Loans or
any fees payable hereunder, or postpone the date of the final scheduled maturity
of the Loans, in each case to the extent subject to such participation. The
Borrower agrees that if amounts outstanding under this Agreement are due or
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement, provided that, in purchasing
--------
such participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in Section 11.7(a) as
---------------
fully as if it were a Lender hereunder. The Borrower also agrees that each
Participant shall be entitled to the benefits of Sections 4.9, 4.10 and 4.11
------------ ---- ----
with respect to its participation in the Commitments and the Loans outstanding
from time to time as if it were a Lender; provided that, in the case of Section
-------- -------
4.10, such Participant shall have complied with the requirements of said Section
----
and provided, further, that no Participant shall be entitled to receive any
-------- -------
greater amount pursuant to any such Section than the transferor Lender would
have been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such transfer
occurred.
99
(c) Any Lender may, in accordance with applicable law, at any time and
from time to time assign to any Person (an "Assignee") all or any part of its
--------
rights and obligations under this Agreement and the other Loan Documents
pursuant to an Assignment and Acceptance, substantially in the form of Exhibit
-------
A, executed by such Assignee and such assigning Lender and delivered to the
-
Administrative Agent for its acceptance and recording in the Register (with a
copy to the Borrower) and upon payment to the Administrative Agent of a
processing fee in the amount of $3,500 by the applicable Lender and/or Assignee;
provided that, (i) no such assignment shall be in an amount less than $5,000,000
--------
or a whole multiple of $100,000 in excess thereof or, if less than $5,000,000,
the entire amount of such Lender's applicable Commitment; and (ii) no such
assignment shall be made without the prior consent of the Administrative Agent
and the Borrower (which consent shall not be unreasonably withheld or delayed)
unless such assignment is to another Lender or an Affiliate of a Lender, in
which event no such consent shall be required. Upon such execution, delivery,
acceptance and recording, from and after the effective date determined pursuant
to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with a Commitment as set forth
therein, and (y) the assigning Lender thereunder shall, to the extent provided
in such Assignment and Acceptance, be released from its obligations under this
Agreement.
(d) Any Non-U.S. Lender that could become completely exempt from
withholding of any tax, assessment or other charge or levy imposed by or on
behalf of the United States or any taxing authority thereof ("U.S. Taxes") in
----------
respect of payment of any Obligations due to such Non-U.S. Lender under this
Agreement if the Obligations were in registered form for U.S. federal income tax
purposes may request the Borrower (through the Administrative Agent), and the
Borrower agrees thereupon, to exchange any promissory note(s) evidencing such
Obligations for promissory note(s) registered as provided in paragraph (f) below
and substantially in the form of Exhibit O (an "Alternative Note"). Alternative
--------- ----------------
Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that could become completely exempt from
withholding of U.S. Taxes in respect of payment of any Obligations due to such
Non-U.S. Lender if the Obligations were in registered form for U.S. Federal
income tax purposes and that holds Alternative Note(s) (an "Alternative
-----------
Noteholder") (or, if such Alternative Noteholder is not the beneficial owner
----------
thereof, such beneficial owner) shall deliver to the Borrower prior to or at the
time such Non-U.S. Lender becomes an Alternative Noteholder a Form W-8
(Certificate of Foreign Status of the U.S. Department of Treasury) (or any
successor or related form adopted by the U.S. taxing authorities), together with
an annual certificate stating that (i) such Alternative Noteholder or beneficial
owner, as the case may be, is not a "bank" within the meaning of Section 881(c)
of the Code, is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign
corporation related to the Company (within the meaning of Section 864(d)(4) of
the Code) and (ii) such Alternative Noteholder or beneficial owner, as the case
may be, shall promptly notify the Borrower if at any time such Alternative
Noteholder or beneficial owner, as the case may be, determines that it is no
longer in a position to provide such certification to the Borrower (or any other
form of certification adopted by the U.S. taxing authorities for such purposes).
100
(f) An Alternative Note and the Obligation(s) evidenced thereby may be
assigned or otherwise transferred in whole or in part only by registration of
such assignment or transfer of such Alternative Note and the Obligation(s)
evidenced thereby on the Register (and each Alternative Note shall expressly so
provide). Any assignment or transfer of all or part of such Obligation(s) and
the Alternative Note(s) evidencing the same shall be registered on the Register
only upon surrender for registration of assignment or transfer of the
Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or
accompanied by a written instrument of assignment or transfer duly executed by)
the Alternative Noteholder thereof, and thereupon one or more new Alternative
Note(s) in the same aggregate principal amount shall be issued to the designated
Assignee(s). No assignment of an Alternative Note and the Obligation(s)
evidenced thereby shall be effective unless it has been recorded in the Register
as provided in this Section 11.6(f).
---------------
(g) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in Section 11.2
------------
a copy of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders
--------
(including Alternative Noteholders) and the Commitments of, and principal
amounts of the Loans owing to, each Lender from time to time. The entries in
the Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent and the Lenders may (and, in the case of any
Loan or other obligation hereunder not evidenced by a Note, shall) treat each
Person whose name is recorded in the Register as the owner of a Loan or other
obligation hereunder as the owner thereof for all purposes of this Agreement and
the other Loan Documents, notwithstanding any notice to the contrary. Any
assignment of any Loan or other obligation hereunder not evidenced by a Note
shall be effective only upon appropriate entries with respect thereto being made
in the Register. The Register shall be available for inspection by the Borrower
or any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(h) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee and the Borrower, if applicable, together with
payment to the Administrative Agent of a registration and processing fee of
$3,500 from the applicable Lender and/or Assignee, the Administrative Agent
shall (i) promptly accept such Assignment and Acceptance and (ii) on the
effective date determined pursuant thereto record the information contained
therein in the Register and give notice of such acceptance and recordation to
the Lenders and the Borrower.
(i) Subject to Section 11.16, the Borrower authorizes each Lender to
-------------
disclose to any Participant or Assignee (each, a "Transferee") and any
----------
prospective Transferee, subject to the Transferee agreeing to be bound by the
provisions of Section 11.16, any and all financial information in such Lender's
-------------
possession concerning the Borrower and the Subsidiaries which has been delivered
to such Lender by or on behalf of the Borrower pursuant to this Agreement or
which has been delivered to such Lender by or on behalf of the Borrower in
connection with such Lender's credit evaluation of the Borrower and its
Subsidiaries prior to becoming a party to this Agreement.
(j) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this Section concerning assignments of Loans and Notes
relate only to absolute assignments and that such provisions do not prohibit
assignments creating security interests,
101
including, without limitation, any pledge or assignment by a Lender of any Loan
or Note to any Federal Reserve Bank in accordance with applicable law.
11.7 Adjustments; Set-off. (a) If any Lender (a "benefitted Lender")
-------------------- -----------------
shall at any time receive any payment of all or part of its Loans, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 9(f), or otherwise), in a greater proportion than any
------------
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Loans, or interest thereon, such benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loan, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits
-------- -------
is thereafter recovered from such benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to the Borrower, any
such notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to set-
off and appropriate and apply against such amount, to the extent permitted by
applicable law, any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender or
any branch or agency thereof to or for the credit or the account of the
Borrower. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such Lender,
provided that, to the extent permitted by applicable law, the failure to give
--------
such notice shall not affect the validity of such set-off and application.
11.8 Counterparts; When Effective. This Agreement may be executed by
----------------------------
one or more of the parties to this Agreement on any number of separate
counterparts (including by facsimile transmission), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A set
of the copies of this Agreement signed by all the parties shall be lodged with
the Borrower and the Administrative Agent. This Agreement shall become
effective when the Administrative Agent has received original counterparts
hereof executed by the Borrower, the Administrative Agent and each Lender named
on Schedule 1.1A on the date of the initial extension of credit made under this
-------------
Agreement (such date herein referred to as the "Effective Date").
--------------
11.9 Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
102
11.10 Integration. This Agreement and the other Loan Documents
-----------
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
11.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
-------------
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11.12 Submission To Jurisdiction; Waivers. The Borrower hereby
-----------------------------------
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgement in
respect thereof, to the non-exclusive general jurisdiction of the Courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) designates and appoints Corporation Service Company, with offices
at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as agent to receive for
and on behalf of the Borrower service of process in New York. In the event
that C T Corporation System resigns or ceases to serve as the Borrower's
agent for service of process hereunder, the Borrower agrees forthwith (i)
to designate another agent for service of process in the State of New York
and (ii) to give prompt written notice to the Administrative Agent of the
name and address of such agent. In addition, the Borrower agrees that
service of process in any such action or proceeding may also be effected by
mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to it at its address
set forth in Section 11.2 or at such other address of which the
------------
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section 11.12 any special, exemplary, punitive or consequential
-------------
damages.
103
11.13 Acknowledgments. The Borrower and each Subsidiary hereby
---------------
acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower or any Subsidiary arising out of
or in connection with this Agreement or any of the other Loan Documents,
and the relationship between the Administrative Agent and the Lenders, on
one hand, and the Borrower or any Subsidiary, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Lenders or among the Borrower, the Subsidiaries and the Lenders.
11.14 WAIVERS OF JURY TRIAL. THE LENDERS, THE BORROWER AND ITS
---------------------
SUBSIDIARIES, FOR THEMSELVES AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, HEREBY
WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW, THEIR RESPECTIVE 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 WITH LENDERS
RELATING TO THE SUBJECT MATTER OF THE LOAN TRANSACTIONS CONTEMPLATED HEREBY AND
THEREBY AND THE 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. The Borrower and its
Subsidiaries acknowledge that this waiver is a material inducement to Lenders'
agreement to enter into a business relationship, that Lenders have already
relied on this waiver in entering into this Agreement, and that Lenders will
continue to rely on this waiver in related future dealings. The Borrower and
its Subsidiaries further warrant and represent that they have knowingly and
voluntarily waived their 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,
MODIFICATIONS, RENEWALS, EXTENSIONS, RESTATEMENTS, REARRANGEMENTS, SUPPLEMENTS
OR SUBSTITUTIONS TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS OR THE NOTES. In the event of
litigation, this Agreement may be filed as a written consent to a trial by the
court.
104
11.15 Maximum Interest Rate. Regardless of any provision contained
---------------------
in any of the Loan Documents, Lenders shall never be entitled to contract for,
charge, take, reserve, receive, or apply, as interest on the Obligations, or any
part thereof, any amount in excess of the Highest Lawful Rate, and, in the event
any Lender ever contracts for, charges, takes, reserves, receives, or applies as
interest any such excess, it shall be deemed a partial prepayment of principal
and treated hereunder as such and any remaining excess shall be refunded to the
Borrower. In determining whether or not the interest paid or payable, under any
specific contingency, exceeds the Highest Lawful Rate, the Borrower, its
Subsidiaries, and Lenders shall, to the maximum extent permitted under
applicable Law, (a) treat all Loans as but a single extension of credit (and
Lenders, the Borrower and the Borrower's Subsidiaries agree that such is the
case and that provision herein for multiple Loans and for one or more Notes is
for convenience only), (b) characterize any nonprincipal payment as an expense,
fee, or premium rather than as interest, (c) exclude voluntary prepayments and
the effects thereof, and (d) "spread" the total amount of interest throughout
the entire contemplated term of the Obligation; provided that, if the Obligation
-------- ----
is paid and performed in full prior to the end of the full contemplated term
thereof, and if the interest received for the actual period of existence thereof
exceeds the Highest Lawful Rate, Lenders shall refund such excess, and, in such
event, Lenders shall not be subject to any penalties provided by any laws for
contracting for, charging, taking, reserving, or receiving interest in excess of
the Highest Lawful Rate.
11.16 Confidentiality. Each Lender agrees to keep confidential all
---------------
non-public information provided to it by or on behalf of the Borrower or any of
the Subsidiaries pursuant to this Agreement or any other Loan Document; provided
--------
that nothing herein shall prevent any Lender from disclosing any such
information (i) to the Administrative Agent or any other Lender, (ii) to any
Assignee or Participant or prospective transferee, if such transferee has agreed
in writing to be bound by this Section 11.16, (iii) to its employees, directors,
-------------
agents, attorneys, accountants and other professional advisors, (iv) as may be
required or appropriate in any report, statement or testimony submitted to the
NAIC or any Governmental Authority having or claiming jurisdiction over such
Lender (including the Board and the Federal Deposit Insurance Corporation or any
similar organization, whether in the United States or elsewhere, and their
respective successors), (v) as may be required or appropriate in response to any
summons or subpoena or in connection with any litigation, (vi) in response to
any order of any court or other Governmental Authority or as may otherwise be
required pursuant to any Requirement of Law, (vii) which has been publicly
disclosed other than in breach of this Agreement, or (viii) in connection with
the exercise of any remedy hereunder.
11.17 Agreement of Lenders. The Administrative Agent and the Lenders
--------------------
agree to comply with their respective covenants, if any, set forth in the
Security Documents.
11.18 References to Credit Agreement. All references to this Credit
-------------------------------
Agreement herein or in any Loan Document or other document, instrument or
certificate or other writing executed or delivered in connection herewith will
be deemed for all purposes to refer to this Credit Agreement as among the
Borrower, the Lenders, the Administrative Agent, the Syndication Agent and the
Documentation Agent as the same may be amended, modified, restated,
supplemented, renewed, extended, increased, rearranged and/or substituted from
time to time.
105
11.19 FINAL AGREEMENT. THIS WRITTEN AGREEMENT, THE NOTES AND THE
---------------
OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN OR ORAL AGREEMENTS
BETWEEN THE PARTIES.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow.]
106
EXECUTED as of the day and year first mentioned.
RADIO ONE, INC., the Borrower
By:
-----------------------------------------
Xxxxxx X. Xxxxxxx
President
NATIONSBANK, N.A.,
as the Administrative Agent and as a Lender
By:
-----------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
FIRST UNION NATIONAL BANK,
as the Syndication Agent and as a Lender
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
CREDIT SUISSE FIRST BOSTON,
as a Lender
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Schedule 1.1A
Commitments and Addresses of Lenders
FUNDING OFFICE OF ADMINISTRATIVE AGENT:
--------------------------------------
NationsBank, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxxxx
Fax: (000) 000-0000
OFFICE OF ISSUING LENDER:
------------------------
NationsBank, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxxxx
Fax: (000) 000-0000
NAME AND ADDRESS OF LENDERS:
---------------------------
Specified
NAME AND ADDRESS OF LENDER Commitment Percentage
-----------------------------------------------------------
Credit Suisse First Boston $20,000,000 20%
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx
Fax: (000) 000-0000
-----------------------------------------------------------
First Union National Bank $40,000,000 40%
000 X. Xxxxxxx Xx. XX-0
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Fax: (000) 000-0000
-----------------------------------------------------------
NationsBank, N.A. $40,000,000 40%
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxx
Fax: (000) 000-0000
-----------------------------------------------------------
Schedule 1.1B
Expense Add Backs to EBITDA
With respect to the financial calculations based on the four fiscal
quarter period ending March 31, 1998, to be delivered by the Borrower hereunder,
the Borrower shall be entitled to a one time expense add back to EBITDA in
connection with the Xxxx Acquisition for such four fiscal quarter period ending
March 31, 1998 in an amount equal to $680,112. With respect to the financial
calculations based on the four fiscal quarter period ending December 31, 1998,
the Borrower shall be entitled to a one time expense add back to EBITDA in
connection with the Allur Acquisition for such four fiscal quarter period ending
December 31, 1998, in an amount equal to $200,000. With respect to the
-------
financial calculations including the fiscal quarter ended December 31, 1998, the
Borrower shall be entitled to a one time expense add back to EBITDA in
connection with the Allur Acquisition in an amount not exceeding $800,000
representing the payment of employee bonuses and contributions related to Allur,
provided that: (i) the funds for such payment are paid out of the purchase price
paid by the Borrower in the Allur Acquisition; and (ii) such payment does not
lower the net worth of the Borrower or any of its Subsidiaries (including Allur)
after giving effect to the reduction in such purchase price resulting from such
payment. It is understood by the Borrower that any further add backs to EBITDA
for any other four fiscal quarter period shall be negotiated with the Lenders.
Schedule 5.1(c)
Pro Forma Financial Information, Budgets and Projections
Schedule 5.4
Required Consents and Approvals
Schedule 5.14(a)
List of Restricted Subsidiaries and Owners of Equity Interests
Schedule 5.14(b)
List of Shareholder and Voting Agreements, Warrants,
Restrictions on Transfer of Equity Interests
Schedule 5.22(a)
Prior Trade Names
Schedule 5.22(b)
Current Trade Names
Schedule 5.23
Chief Executive Office; Chief Place of Business
Schedule 5.24(a)
List of Real Property Owned and Leased
Schedule 5.24(b)
List of Mortgaged Properties
Schedule 5.25
Stations Owned
Schedule 5.26
Necessary Authorizations
Schedule 5.27
Patents and Trademarks
Schedule 6.1(a)(a)
1. Subordinated Purchase Money Note, dated as of June 20, 1995, payable to
order of Design Media, Inc. in the original principal amount of $235,000
2. Promissory Note in the original principal amount of $1,000,000 payable to
the order of Xxxxxx Xxxxxxx, dated as of June 20, 1995
3. Senior Secured Debenture dated March 31, 1997, payable by Radio One of
Atlanta, Inc. and Dogwood Communications Inc. to the order of Allied
Capital Corporation in the original principal amount of $1,350,000
4. Senior Secured Debenture dated March 31, 1997, payable by Radio One of
Atlanta, Inc. and Dogwood Communications Inc. to the order of Allied
Investment Corporation in the original principal amount of $2,450,000
5. Senior Secured Debenture dated March 31, 1997, payable by Radio One of
Atlanta, Inc. and Dogwood Communications Inc. to the order of Allied
Capital Financial Corporation in the original principal amount of
$1,900,000
6. Senior Secured Debenture dated March 31, 1997, payable by Radio One of
Atlanta, Inc. and Dogwood Communications Inc. to the order of Allied
Capital Corporation II in the original principal amount of $2,650,000
7. Senior Secured Debenture dated March 31, 1997, payable by Radio One of
Atlanta, Inc. and Dogwood Communications Inc. to the order of Allied
Investment Corporation II in the original principal amount of $1,500,000
8. Senior Secured Debenture dated March 31, 1997, payable by Radio One of
Atlanta, Inc. and Dogwood Communications Inc. to the order of Allied
Capital Financial Corporation II in the original principal amount of
$150,000
9. Accrued Interest Note dated March 31, 1997, made by Radio One of Atlanta,
Inc. and Dogwood Communications Inc., payable to the order of Allied
Capital Financial Corporation II, in the original principal amount of
$9,156.75
10. Accrued Interest Note dated March 31, 1997, made by Radio One of Atlanta,
Inc. and Dogwood Communications Inc., payable to the order of Allied
Investment Corporation, in the original principal amount of $53,109.17
11. Accrued Interest Note dated March 31, 1997, made by Radio One of Atlanta,
Inc. and Dogwood Communications Inc., payable to the order of Allied
Capital Corporation II, in the original principal amount of $38,458.37
12. Accrued Interest Note dated March 31, 1997, made by Radio One of Atlanta,
Inc. and Dogwood Communications Inc., payable to the order of Allied
Investment Corporation II, in the original principal amount of $109,881.05
13. Accrued Interest Note dated March 31, 1997, made by Radio One of Atlanta,
Inc. and Dogwood Communications Inc., payable to the order of Allied
Capital Financial Corporation, in the original principal amount of
$155,664.82
14. Senior Secured Debenture dated September 30, 1998, made by Radio One of
Atlanta, Inc. and Dogwood Communications Inc., in the amount of $2,000,000,
payable to the order of Allied Capital Corporation
15. Senior Secured Subordinated Promissory Note due April 1, 2001, made by
Radio One of Atlanta, Inc. and Dogwood Communications Inc., dated April 7,
1997, payable to the order of Alta Subordinated Debt Partner III, L.P., in
the original principal amount of $1,576,959.91
16. Promissory Note in the original principal amount of $1,000,000, increasing
to $1,388,878.63, issued by Radio One of Atlanta, Inc., dated June 20,
1995, payable to the order of Syndicated Communications Venture Partners
II, L.P.
Schedule 8.2
Indebtedness
Schedule 8.7
Terms of WKJS Acquisition and WSOJ Acquisition
Borrower may enter into an agreement to enable the Borrower (provided the
Borrower can otherwise fully comply with the terms and conditions of the Credit
Agreement and the other Loan Documents) to acquire all or substantially all of
the assets, property and business used in the operation of Stations WKJS-FM,
Crewe, Virginia, and WSOJ-FM, Petersburg, Virginia (the "Stations"), as more
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specifically set forth in Section 1 of the below-described Asset Purchase
Agreement (collectively, the "Assets"), from FM 100, Inc., a Virginia (the
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"Seller"), for a total consideration of $12,000,000 (the "Richmond II
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Acquisition"), plus additional contingent consideration as specified in the
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Richmond II Asset Purchase Agreement identified below pursuant to (i) an Asset
Purchase Agreement, to be dated on or about February 26, 1999, by and between
the Borrower and the Seller (the "Richmond II Asset Purchase Agreement") in the
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form delivered to the Administrative Agent and the Lenders on the Effective
Date, and (ii) an Escrow Agreement, to be dated on or about February 26, 1999,
by and among the Borrower, the Seller and Media Services Group, Inc., as escrow
agent thereunder in the form delivered to the Administrative Agent and Lenders
on the Effective Date (the "Richmond II Escrow Agreement" and, together with the
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Richmond II Asset Purchase Agreement, the "Richmond II Acquisition Agreements"),
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and (b) to, in connection with entering into such Richmond II Acquisition
Agreements, and as required thereunder, deposit into escrow, pursuant to the
Richmond II Escrow Agreement, a nonrefundable deposit of $500,000 (the "Richmond
--------
II Xxxxxxx Money Deposit") simultaneously with the execution and delivery of the
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Richmond II Acquisition Agreements, which will be applied to the Richmond II
Acquisition purchase price upon consummation of the Richmond II Acquisition.
Nothing in the permission granted in Section 8.7 to the Borrower's entering in
to the Richmond II Acquisition Agreements: (a) waives any conditions precedent
or covenants required to be met by the Borrower under the Credit Agreement or
the other Loan Documents with respect to the consummation of the Richmond II
Acquisition; or (b) constitutes an undertaking or commitment on the part of any
Lender to increase its Commitment under the Credit Agreement or otherwise amend
the Credit Agreement in order to facilitate or permit consummation of the
Richmond II Acquisition.
The Borrower has represented to the Lenders that no consent or authorization
of, filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person (including any stockholder of the Borrower) is
required to be obtained or made by the Borrower or any other Loan Party in
connection with the Borrower's execution and delivery of the Richmond II
Acquisition Agreements or its tender of the Richmond II Xxxxxxx Money Deposit
other than such as have been obtained or made and are in full force and effect
or which are immaterial.
Unless the Borrower fully complies with all conditions precedent, covenants,
terms and conditions of the Credit Agreement and the other Loan Documents prior
to or contemporaneously with the consummation of the Richmond II Acquisition,
then the Borrower may not consummate the Richmond II Acquisition and the
Borrower may, among other things, forfeit the Richmond II Xxxxxxx Money Deposit.
Schedule 8.9
Existing Affiliate Transactions
