EXHIBIT 10.9
CREDIT AGREEMENT
among
XXXXXX COMPANIES INC.
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
DOING BUSINESS AS SEAFIRST BANK
as Agent
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
DOING BUSINESS AS SEAFIRST BANK
and
U.S. BANK NATIONAL ASSOCIATION
as Banks
dated May 26, 1998
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TABLE OF CONTENTS
EXHIBITS:
--------
Exhibit A: Forms of Revolving Notes
Exhibit B: Form of CFO Certificate
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT ("Agreement") is made among XXXXXX COMPANIES INC., a
Washington corporation ("Borrower"), Bank of America National Trust and Savings
Association, doing business as SEAFIRST BANK, a national banking association, as
agent ("Agent"), and the following financial institutions that are individually
called a "Bank" and collectively called the "Banks," including their respective
successors and/or assigns: Bank of America National Trust and Savings
Association, doing business as SEAFIRST BANK (in its capacity as a Bank,
"Seafirst"), and U.S. BANK NATIONAL ASSOCIATION ("U.S. Bank"). The parties agree
as follows:
ARTICLE 1
Definitions
All terms defined below shall have the meaning indicated. All references
in this Agreement to:
(a) "dollars" or "$" shall mean U.S. dollars;
(b) "Article," "Section," or "Subsection" shall mean articles,
sections, and subsections of this Agreement, unless otherwise
indicated;
(c) terms defined in the Washington version of the Uniform Commercial
Code, R.C.W. (S)62A.9-101, et seq. ("UCC"), and not otherwise defined
in this Agreement, shall have the meaning given in the UCC; and
(d) an accounting term not otherwise defined in this Agreement shall
have the meaning assigned to it under GAAP.
1.1 Adjusted LIBOR Rate
shall mean for any day that per annum rate equal to the sum of (a) the
LIBOR Margin, and (b) the quotient of (i) the LIBOR Rate as determined for such
day, divided by (ii) the Reserve Adjustment. The Adjusted LIBOR Rate shall
change with any change in the LIBOR Rate on the first day of each Interest
Period and on the effective date of any change in the Reserve Adjustment.
1.2 Advances
shall mean the disbursement of loan proceeds under the Revolving Loan. An
Advance shall not constitute a "payment order" under R.C.W. (S)62A.4A-103.
1.3 Affiliate(s)
shall mean, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, membership interests, by contract,
or otherwise.
1.4 Agent-Related Persons
shall mean Agent, its affiliates, and all officers, directors, and
employees of Agent and such affiliates.
1.5 Available Amount
shall mean at any time the amount of the Credit Limit, minus the combined
unpaid balance of the Revolving Notes, minus the principal amount of any
long-term permanent refinancing obtained by Borrower for the KOMO Block Project.
1.6 Business Day
shall mean any day other than a Saturday, Sunday, or other day on which
commercial banks in Seattle, Washington, are authorized or required by law to
close.
1.7 Capitalization Ratio
shall mean the ratio of (a) Funded Debt, to (b) the sum of Funded Debt plus
shareholders' equity (as determined in accordance with GAAP).
1.8 Commencement Date
shall mean the first day of any Interest Period as requested by Borrower.
1.9 Credit Limit
shall mean $35,000,000, increasing to $75,000,000 on January 1, 1999, to
$85,000,000 on January 1, 2000, and to $100,000,000 on January 1, 2001,
contingent on Borrower paying to Agent for the account of Banks at the time of
each increase a step up fee equal to 0.10% of the principal amount of the
increase (e.g., 0.10% of $40,000,000 on the increase to $75,000,000).
1.10 Debt
shall mean all consolidated obligations, on a GAAP basis, included in the
liability section of a balance sheet of Borrower.
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1.11 EBITDA
shall mean earnings before interest expense, taxes, depreciation, and
amortization for the most recent four quarters.
1.12 ERISA
shall mean the Employee Retirement Income Security Act of 1974, as amended.
1.13 Floating Rate Loans
shall mean those portions of principal of the Revolving Notes accruing
interest at the Reference Rate.
1.14 Funded Debt
shall mean all consolidated interest-bearing Debt (including capital lease
obligations) of Borrower and its Subsidiaries, and all interest-bearing
indebtedness guaranteed (in whole or in part) by Borrower or any of its
Subsidiaries.
1.15 GAAP
shall mean generally accepted accounting principles as in effect from time
to time in the United States and as consistently applied by Borrower.
1.16 Interest Payment Dates
shall mean the last Business Day of each month as to each Floating Rate
Loan and the last day of each Interest Period as to each LIBOR Rate Loan (and if
the Interest Period is more than three months, the end of the third month of the
Interest Period shall also be an Interest Payment Date), and upon maturity,
including upon maturity by acceleration.
1.17 Interest Period
shall mean the period commencing on the date of any Advance at or
conversion to an Adjusted LIBOR Rate and ending on any date thereafter as
selected by Borrower, subject to the restrictions of Section 4.3. If any
Interest Period would end on a day which is not a Business Day, the Interest
Period shall be extended to the next succeeding Business Day, unless the next
succeeding Business Day falls in the next month, in which case the Interest
Period shall be shortened to the preceding Business Day.
1.18 KOMO Block Project
shall mean a new 300,000 square foot complex to house KOMO-TV, other Xxxxxx
entities, and business tenants.
1.19 LIBOR Rate
shall mean for any Interest Period the per annum rate, calculated on the
basis of actual number of days elapsed over a year of 360 days, for U.S. Dollar
deposits for a period equal to the Interest Period appearing on the display
designated as "Page 3750" on the Telerate Service (or such other page on that
service or such other service designated by the British Banker's Association for
the display of that Association's Interest Settlement Rates for U.S. Dollar
deposits) as of 11:00 a.m., London time, on the day which is two London Banking
Days prior to the first day of the Interest Period. If there is no applicable
quote available from the Telerate Service, the LIBOR Rate shall be determined by
Agent in its sole discretion as the rate of interest at which dollar deposits
for the applicable Interest Period and in the amount of the LIBOR Rate Loan
requested would be offered to major banks in the London interbank market at
approximately 11:00 a.m. (London time) on a London Banking Day two Business Days
prior to the Commencement Date.
1.20 LIBOR Rate Loans
shall mean those portions of principal of the Revolving Notes accruing
interest at the Adjusted LIBOR Rate.
1.21 Loan Documents
shall mean collectively this Agreement, the Revolving Notes, and all other
agreements, documents, and instruments now or later executed in connection with
this Agreement.
1.22 London Banking Day
shall mean any day other than a Saturday, Sunday, or other day on which
commercial banks in London, England, are authorized or required by law to close.
1.23 Majority Banks
shall mean Banks holding 67% of the Pro Rata Shares.
1.24 Margin
shall mean (a) as to LIBOR Rate Loans, the "LIBOR Margin" as determined by
the following chart; and (b) as to the calculation of the commitment fee under
Section 2.5, the "Fee Margin" as determined by the following chart:
======================================================================
Capitalization Ratio* LIBOR Margin Fee Margin
----------------------------------------------------------------------
? .40 to 1 0.40% 0.125%
----------------------------------------------------------------------
? .50 to 1 0.50% 0.150%
----------------------------------------------------------------------
? .60 to 1 0.625% 0.200%
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======================================================================
Capitalization Ratio* LIBOR Margin Fee Margin
----------------------------------------------------------------------
? .65 to 1 0.875% 0.275%
======================================================================
* as determined based on the most recently delivered quarterly consolidated
financial statement of Borrower.
Upon receipt of a quarterly financial statement showing a decrease or increase
in Capitalization Ratio which places Borrower in a new pricing category, all
Advances and commitment fees shall begin being calculated at the higher or lower
margin, as the case may be, for the period beginning on the date 60 days after
the end of the quarter reported on in such statement.
1.25 Obligations
shall mean the Revolving Notes, and all fees, costs, expenses, and
indemnifications due to Agent and Banks under this Agreement.
1.26 Person
shall mean any individual, partnership, corporation, business trust,
unincorporated organization, joint venture, limited liability company, or any
governmental entity, department, agency, or political subdivision.
1.27 Plan
shall mean any employee benefit plan or other plan maintained for
Borrower's employees and covered by Title IV of ERISA, excluding any plan
created or operated by or for any labor union.
1.28 Pro Rata Share(s)
shall mean the following percentages as to the Bank indicated:
SEAFIRST 60%
U.S. BANK 40%
1.29 Reference Rate
shall mean the rate of interest publicly announced from time to time by
Agent in San Francisco, California, as its "Reference Rate," calculated on the
basis of actual number of days elapsed over a year of 365/366 days. The
Reference Rate is set based on various factors, including Agent's costs and
desired return, general economic conditions, and other factors, and is used as a
reference point for pricing some loans. Agent may price loans to its customers
at, above, or below the Reference Rate. Any change in the Reference Rate shall
take effect at the opening of business on the day specified in the public
announcement of a change in the Reference Rate.
1.30 Reserve Adjustment
shall mean as of any day the remainder of one minus that percentage
(expressed as a decimal) which is the highest of any such percentages
established by the Board of Governors of the Federal Reserve System (or any
successor) for required reserves (including any emergency, marginal, or
supplemental reserve requirement) regardless of the aggregate amount of deposits
with said member bank and without benefit of any possible credit, proration,
exemptions, or offsets for time deposits established at offices of member banks
located outside of the United States or for eurocurrency liabilities, if any.
1.31 Subsidiary(ies)
of a Person shall mean any Person of which more than 50% of the voting
stock, membership interests, or other equity interests (in the case of Persons
other than corporations) is owned or controlled directly or indirectly by the
Person, or one or more of the Subsidiaries of the Person, or a combination
thereof. Unless the context otherwise clearly requires, references herein to a
"Subsidiary" refer to a Subsidiary of Borrower.
1.32 Termination Date
shall mean March 31, 2003, or such earlier date upon which Banks'
commitment to lend is terminated pursuant to Subsection 10.2(a); provided, that
Borrower may request Banks to extend the Termination Date by giving written
notice of such request to Agent by January 31, 2001, which must indicate whether
such request is for a one-year or two-year extension. Banks shall give their
response to such request by March 31, 2001. Upon the mutual written consent of
Agent and all Banks, which any one or more of them may withhold in their sole
discretion, such extension shall be granted upon payment of a fee of $75,000 for
an extension of one year or $100,000 for an extension of two years.
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ARTICLE 2
Revolving Loan
2.1 Revolving Loan Facility.
Subject to the terms and conditions of this Agreement and to the extent of
its Pro Rata Share of the Credit Limit, each Bank shall make Advances to
Borrower from time to time, until the Termination Date ("Revolving Loan"), with
the aggregate principal amount at any one time outstanding not to exceed the
Credit Limit. Borrower may use the Revolving Loan by borrowing, repaying and
reborrowing the Available Amount, in whole or in part; provided that Borrower
shall fully and finally repay the Revolving Loan on the Termination Date. No
Bank shall be liable for any failure of any other Bank to fund its Pro Rata
Share of Advances. At no time shall any Bank be obligated to make Advances that
exceed its Pro Rata Share of the Credit Limit. Each borrowing by Borrower under
this Agreement shall constitute a representation and warranty by Borrower as of
the date of each such borrowing that the conditions precedent contained in
Sections 5.6 and 5.7 of this Agreement have been satisfied.
2.2 Revolving Notes.
The obligation of Borrower to repay the Revolving Loan shall be evidenced
by two promissory notes (including all renewals, modifications and extensions
thereof, collectively called the "Revolving Notes") made by Borrower to the
order of each of the Banks, and shall bear interest as provided in Article 4.
The Revolving Notes shall be unsecured and shall be in substantially the same
form as Exhibits A-1 and A-2 attached. Each of the Banks shall note on its
internal records each Advance made by it, each payment on its respective
Revolving Note and any interest rate conversions; provided, however, that the
failure of a Bank to make, or an error in making, a notation thereon with
respect to any Revolving Loan shall not limit or otherwise affect the
obligations of Borrower under this Agreement or under any such Revolving Note to
such Bank.
2.3 Procedure for Floating Rate Loans.
In accordance with all terms and conditions of this Agreement, Borrower
may borrow at the Reference Rate under the Revolving Loan on any Business Day.
Borrower shall give Agent irrevocable notice (written or oral, but with oral
requests to be confirmed promptly in writing) specifying the amount to be
borrowed on or before 9:30 a.m., Seattle time, on the day that a Floating Rate
Loan is requested; all Floating Rate Loans shall be discretionary to the extent
notification by Borrower is given subsequent to that time. Agent shall advise
each Bank by 11:00 a.m., Seattle time, of a request for a Floating Rate Loan,
and each Bank shall make available to Agent its respective Pro Rata Share of
such requested Floating Rate Loan no later than 12:00 noon, Seattle time, on the
date of Floating Rate Loan. Whether or not any Bank fails to fund its Pro Rata
Share of a Floating Rate Loan, each Bank shall only be obligated to disburse to
Agent such Bank's Pro Rata Share of such requested Floating Rate Loan.
2.4 Procedure for LIBOR Rate Loans.
In accordance with all terms and conditions of this Agreement, Borrower
may borrow at the Adjusted LIBOR Rate under the Revolving Loan on any
Commencement Date. In accordance with Section 4.2, Borrower shall give Agent
irrevocable notice (written or oral, but with oral requests to be confirmed
promptly in writing), no later than 9:30 a.m. on a London Banking Day three
Business Days prior to the requested Commencement Date, specifying the amount to
be borrowed, the Interest Period, and the requested borrowing date, and on the
Commencement Date each Bank shall make available to Agent its respective Pro
Rata Share of such requested LIBOR Rate Loan no later than 12:00 noon, Seattle
time, on the date of the LIBOR Rate Loan. Whether or not any Bank fails to fund
its Pro Rata Share of a LIBOR Rate Loan, each Bank shall only be obligated to
disburse to Agent such Bank's Pro Rata Share of such requested LIBOR Rate Loan.
At the time that Agent learns of any change in the Reserve Adjustment, Agent
shall notify Borrower of the change and of the impact on any LIBOR Rate Loans
then outstanding.
2.5 Facility Fee.
On the last Business Day of each quarter beginning with the quarter ending
June 30, 1998, and upon termination of Banks' commitment to make Advances either
by agreement of the parties or by the operation of Section 10.2(a), Borrower
shall pay to Agent for the account of Banks, in accordance with their respective
Pro Rata Shares, in arrears a commitment fee equal to Fee Margin per annum
multiplied by the difference between the Credit Limit and the daily combined
outstanding principal balance of the Revolving Notes.
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ARTICLE 3
Guaranties
The Obligations shall be absolutely and unconditionally guaranteed by
Xxxxxx Broadcasting Inc., Xxxxxx Xxxxx Inc., and Xxxxxx Properties Inc., each a
Washington corporation, jointly and severally, in form satisfactory to Agent.
Borrower authorizes Agent to release to any of the aforementioned guarantors all
information Agent possesses concerning Borrower or any loans, credits, or other
financial accommodations made to Borrower by Agent or Banks.
ARTICLE 4
Interest Rate Options
4.1 Interest Rates and Payment Date.
The Revolving Notes shall each bear interest from the date of Advance on
the unpaid principal balance outstanding from time to time at the Reference Rate
or Adjusted LIBOR Rate as selected by Borrower and all accrued interest shall be
payable in arrears on each Interest Payment Date.
4.2 Procedure.
Borrower may, on any London Banking Day three London Banking Days before a
Commencement Date, request Agent to give an Adjusted LIBOR Rate quote for a
specified loan amount and Interest Period. Agent will then quote to Borrower
the then-current Adjusted LIBOR Rate. Borrower shall have two hours from the
time of the quote to elect an Adjusted LIBOR Rate by giving Agent irrevocable
notice of such election.
4.3 Option Restrictions.
Each Interest Period shall be one, two, three, or six months. In no event
shall an Interest Period extend beyond the Termination Date. The minimum amount
of a LIBOR Rate Loan shall be $1,000,000. No more than 12 different LIBOR Rate
Loans may be outstanding at any one time.
4.4 Prepayments.
If Borrower prepays all or any portion of a LIBOR Rate Loan prior to the
end of an Interest Period, there shall be due at the time of any such prepayment
the Prepayment Fee, determined in accordance with Form 51-6325, which shall be
attached as Exhibit 1 to each Revolving Note, based on calculations as
determined by each Bank. Each Bank shall notify Agent of its calculation, and
Agent will invoice Borrower therefor. Floating Rate Loans may be prepaid on any
Business Day without premium or penalty.
4.5 Conversion to Reference Rate.
The Revolving Notes shall each bear interest at the Reference Rate unless
an Adjusted LIBOR Rate is specifically selected. At the termination of any
Interest Period, each LIBOR Rate Loan shall convert to a Floating Rate Loan
unless Borrower directs otherwise pursuant to Section 4.2.
4.6 Inability to Participate in Market.
If Banks in good faith cannot participate in the offshore U.S. dollar
market for legal or practical reasons, and so notify Agent, the Adjusted LIBOR
Rate shall cease to be an interest rate option. Agent shall notify Borrower if
and when Banks notify Agent that it has again become legal or practical to
participate in the Eurodollar market, at which time the Adjusted LIBOR Rate
shall resume being an interest rate option.
4.7 Costs.
Borrower shall, as to LIBOR Rate Loans, reimburse Agent, for the account
of Banks, for all costs, taxes, and expenses, and defend and hold Banks harmless
for any liabilities, which Banks may incur as a consequence of any changes in
the cost of participating in, or in the laws or regulations affecting, the
Eurodollar market, including any additional reserve requirements, except to the
extent such costs are already calculated into the Adjusted LIBOR Rate. This
covenant shall survive this Agreement and the payment of the Revolving Notes.
4.8 Basis of Quotes.
Borrower acknowledges that Agent or Banks may or may not in any particular
case actually match-fund a LIBOR Rate Loan. Whether the mechanism for setting a
particular rate in fact represents the actual cost to Banks for any particular
dollar or Eurodollar deposit or any LIBOR Rate Loan will depend upon how such
Bank actually chooses to fund the LIBOR Rate Loan. By electing an Adjusted
LIBOR Rate, Borrower waives any right to object to Agent's means of calculating
the Adjusted LIBOR Rate quote accepted by Borrower.
ARTICLE 5
Conditions of Lending
Banks' obligation to make the initial Advance is subject to the conditions
precedent listed in Sections 5.1 through 5.5, and to make subsequent Advances is
subject to the conditions precedent listed in Sections 5.6 and 5.7, unless
waived by all Banks in writing:
5.1 Authorization.
Borrower shall have delivered to Agent a certified copy of the resolution
of Borrower's board of directors authorizing the transactions contemplated by
this Agreement and the execution, delivery, and performance of all Loan
Documents, together with appropriate certificates of incumbency. Each corporate
guarantor
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shall have delivered to Agent a certified copy of a resolution of such
guarantor's board of directors, satisfactory in form to Agent, authorizing its
guaranty.
5.2 Documentation.
Borrower shall have executed and delivered to Agent all documents to
reflect the existence of the Obligations.
5.3 Guaranties.
Each guarantor shall have executed and delivered its guaranty to Agent,
and each such guaranty shall remain in full force and effect.
5.4 Closing Fees.
Borrower shall have paid to Agent the upfront fee due on closing described
in the commitment letter dated November 21, 1997 (revised), from Xxxxxx X.
Xxxxxx III to Xxxxx X. Xxxxxxx; Agent shall have paid to U.S. Bank the fees
described in the letter dated April 6, 1998, from Xxxx Xxxxx to Xxxxx Xxxxxxx;
and Borrower shall have paid the costs and expenses required to be paid pursuant
to Section 11.3.
5.5 Proof of Insurance.
Proof of insurance on the KOMO Block Project, satisfactory to Banks, shall
have been provided to Agent.
5.6 Representations and Warranties.
The representations and warranties made by Borrower in the Loan Documents
and in any certificate, document, or financial statement furnished at any time
shall continue to be true and correct, except to the extent that such
representations and warranties expressly relate to an earlier date.
5.7 Compliance.
No Default or other event which, upon notice or lapse of time or both
would constitute a Default, shall have occurred and be continuing, or shall
exist after giving effect to the advance of credit to be made.
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ARTICLE 6
Representations and Warranties
To induce Banks to enter into this Agreement, Borrower represents,
warrants, and covenants to Agent and Banks as follows:
6.1 Existence.
Borrower and its Subsidiaries are each in good standing as a corporation
under the laws of the state of Washington, has the power, authority, and legal
right to own and operate its property or lease the property it operates and to
conduct its current business; and is qualified to do business and is in good
standing in all other jurisdictions where the ownership, lease, or operation of
its property or the conduct of its business requires such qualification.
6.2 Enforceability.
The Loan Documents, when executed and delivered by Borrower, shall be
enforceable against Borrower in accordance with their respective terms, subject
to rules of equity and to bankruptcy, insolvency, or other similar laws
affecting the enforcement of creditors' rights in general.
6.3 No Legal Bar.
The execution, delivery, and performance by Borrower and its Subsidiaries
of the Loan Documents, and the use of the loan proceeds, shall not, to the best
of Borrower's knowledge, violate any currently-existing law or regulation
applicable to Borrower or any of its Subsidiaries; any ruling applicable to
Borrower or any of its Subsidiaries of any court, arbitrator, or governmental
agency or body of any kind; Borrower's or any of its Subsidiaries'
organizational documents; any security issued by Borrower or any of its
Subsidiaries; or any mortgage, indenture, lease, contract, undertaking, or other
agreement to which Borrower or any of its Subsidiaries is a party or by which
Borrower or any of its Subsidiaries or any of its respective property may be
bound.
6.4 Financial Information.
By submitting each of the financial statements required by Subsection 7.4
(a) and 7.4 (b), Borrower is deemed to represent and warrant that, to the best
of Borrower's knowledge: (a) such statement is complete and correct and fairly
presents the financial condition of Borrower as of the date of such statement;
(b) such statement discloses all liabilities of Borrower that are required to be
reflected or reserved against under GAAP, whether liquidated or unliquidated,
fixed or contingent; and (c) such statement has been prepared in accordance with
GAAP. As of this date, to the best of Borrower's knowledge, there has been no
adverse change in Borrower's financial condition since preparation of the last
such financial statements delivered to Banks which would materially impair
Borrower's ability to repay the Obligations.
6.5 Liens and Encumbrances.
As of this date, Borrower and each of its Subsidiaries has, to the best of
Borrower's knowledge, good and marketable title to its property free and clear
of all security interests, liens, encumbrances, or rights of others, except as
disclosed in writing to Banks, and except for taxes which are not yet delinquent
and for conditions, restrictions, easements, and rights of way of record which
do not materially affect the use of any of Borrower's or any such Subsidiary's
property.
6.6 Litigation.
Except as disclosed in writing to Banks, there is no threatened (to
Borrower's knowledge) or pending litigation, investigation, arbitration, or
administrative action which may materially adversely affect Borrower's or any of
its Subsidiaries' business, property, operations, or financial condition.
6.7 Payment of Taxes.
To the best of Borrower's knowledge, Borrower and each of its Subsidiaries
has filed or caused to be filed all tax returns when required to be filed; and
has paid all taxes, assessments, fees, licenses, excise taxes, franchise taxes,
governmental liens, penalties, and other charges levied or assessed against
Borrower or any such Subsidiary or any of its respective property imposed on it
by any governmental authority, agency, or instrumentality that are due and
payable (other than those returns or payments of which the amount,
enforceability, or validity are contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP are
provided on Borrower's or any such Subsidiary's books).
6.8 Employee Benefit Plan.
To the best of Borrower's knowledge, Borrower and each of its Subsidiaries
is in compliance in all respects with the provisions of ERISA and the
regulations and published interpretations thereunder. Borrower and each of its
Subsidiaries has not engaged, to the best of Borrower's knowledge, in any acts
or omissions which would make it liable to the Plan, to any of its participants,
or to the Internal Revenue Service, under ERISA.
6.9 Misrepresentations.
To the best of Borrower's knowledge, no information, exhibits, data, or
reports furnished by Borrower or any of its Subsidiaries or delivered to Agent
or Banks in connection with Borrower's application for credit misstates any
material fact, or omits any fact necessary to make such information, exhibits,
data, or reports not misleading.
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6.10 No Default.
To the best of Borrower's knowledge, Borrower is not in default in any
Loan Document, nor is Borrower nor any of its Subsidiaries in default under any
material contract, agreement, or instrument to which it is a party.
6.11 Year 2000 Compliance.
Borrower is actively assessing the impact of the upcoming change in the
century on its computer software and hardware, and on Borrower's products,
services, and competitive conditions. Certain software applications have been
identified for replacement prior to the year 2000. Based on Borrower's analysis
to date, Borrower believes that the impact of year 2000 issues will not be
material to Borrower's business, operations, or financial condition, and that
the cost of remediating such matters will not be material. However, the impact
of the failure of computer systems of customers, vendors, and others with whom
Borrower does business is uncertain and has not been assessed by Borrower.
6.12 No Burdensome Restrictions.
To the best of Borrower's knowledge, no contract or other instrument to
which Borrower or any of its Subsidiaries is a party, or order, award, or decree
of any court, arbitrator, or governmental agency, materially impairs Borrower's
or any such Subsidiary's ability to repay the Obligations.
6.13 Margin Stock.
Neither Borrower nor any of its Subsidiaries is engaged, nor shall it
engage, principally or as one of its important activities, in the business of
extending credit for the purpose of "purchasing" or "carrying" margin stock
under Regulation U of the Board of Governors of the Federal Reserve System.
Borrower shall not use any part of the proceeds of any Advance for any purpose
which violates or is inconsistent with the provisions of Regulation G, T, U, or
X of such Board of Governors, as the same may be amended, supplemented, or
modified from time to time.
ARTICLE 7
Affirmative Covenants
So long as this Agreement shall remain in effect, or any liability exists
under the Loan Documents, Borrower shall, and with respect to Sections 7.5
through 7.10 Borrower and each of its Subsidiaries shall, unless the Majority
Banks waive compliance in writing:
7.1 Use of Proceeds.
Use the proceeds of the Revolving Loan for construction financing for the
KOMO Block Project and for working capital or other general corporate purposes.
7.2 Capitalization Ratio.
Maintain a Capitalization Ratio of not more than 0.65 to 1, measured as of
each fiscal quarter end.
7.3 EBITDA Ratio.
Maintain a ratio of Funded Debt to EBITDA in a ratio of not more than 3.50
to 1, measured as of each fiscal quarter end.
7.4 Financial Information.
Maintain a standard system of accounting in accordance with GAAP and
furnish to Agent, with enough copies for Agent and each Bank, the following:
(a) Quarterly Financial Statements. As soon as available and, in any
event, within 60 days after the end of each except the last fiscal
quarter of each fiscal year, a copy of the consolidated statement of
income and retained earnings of Borrower for the quarter and for the
current fiscal year through such quarter, and for each such quarter a
copy of the consolidated balance sheet, consolidated statement of
shareholders' equity, and consolidated statement of cash flow of
Borrower as of the end of such quarter, setting forth, in each case,
in comparative form, figures for the corresponding period of the
preceding fiscal year, all in reasonable detail and satisfactory in
scope to Agent, prepared under the supervision of the chief financial
officer of Borrower, and in form and substance satisfactory to Agent;
(b) Annual Financial Statements. As soon as available and, in any
event, within 120 days after the end of each fiscal year, a copy of
the consolidated balance sheet, consolidated statement of income and
retained earnings, consolidated statement of shareholders' equity, and
consolidated statement of cash flow of Borrower for such year, setting
forth in each case, in comparative form, corresponding figures from
the preceding annual statements, each audited by independent certified
public accountants of recognized standing selected by Borrower and
satisfactory to Agent certifying that such statement is complete and
correct, fairly presents without qualification the financial condition
of Borrower for such period, is prepared in accordance with GAAP, and
has been audited in conformity with generally accepted auditing
standards;
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(c) Internal Reports. Quarterly internal financial reports of each
guarantor within 60 days of each fiscal quarter end, and annual
internal financial reports of each guarantor within 120 days of each
fiscal year end;
(d) Other Certificates. Together with the delivery of the financial
statements required by Subsections 7.4(a) and 7.4 (b), a certificate
of the chief financial officer of Borrower, in the form of Exhibit B
attached; and
(e) Additional Financial Information. As soon as available and, in
any event, within ten days after request, such other financial data,
information, or documentation as Agent may reasonably request.
7.5 Maintenance of Existence.
Preserve and maintain its existence, powers, and privileges in the
jurisdiction of its formation, and qualify and remain qualified in each
jurisdiction in which its presence is necessary or desirable in view of its
business, operations, or ownership of its property. Borrower and each of its
Subsidiaries shall also maintain and preserve all of their property which is
necessary or useful in the proper course of its business, in good working order
and condition, ordinary wear and tear excepted.
7.6 Books and Records.
Keep accurate and complete books, accounts, and records in which complete
entries shall be made in accordance with GAAP, reflecting all financial
transactions of Borrower and any such Subsidiary.
7.7 Access to Premises and Records.
At all reasonable times and as often as Agent or Banks may reasonably
request, permit any authorized representative designated by Agent or Banks to
have access to any premises or property of Borrower and each such Subsidiary
where financial records of Borrower or any such Subsidiary are located,
including all records relating to the finances, operations, and procedures of
Borrower and each such Subsidiary, to view financial records and to make copies
of or abstracts from such records.
7.8 Notice of Events.
Furnish Agent prompt written notice of:
(a) Proceedings. Any proceeding instituted by or against Borrower or
any such Subsidiary in any court or before any commission or
regulatory body, or any proceeding threatened against it in writing by
any governmental agency which if adversely determined would have a
material adverse effect on Borrower's or any such Subsidiary's
business, property, or financial condition, or where the amount
involved is $3,000,000 or more and not covered by insurance;
(b) Material Development. Any material development in any such
proceeding referred to in Subsection 7.8(a);
(c) Defaults. Any accident, event, or condition which is or, with
notice or lapse of time or both, would constitute a Default, or a
default under any other agreement to which Borrower or any such
Subsidiary is a party; and
(d) Adverse Effect. Any other action, event, or condition of any
nature which could result in a material adverse effect on the
business, property, or financial condition of Borrower or any of its
Subsidiaries.
7.9 Payment of Debts and Taxes.
Pay all Debt and perform all obligations promptly and in accordance with
their terms, and pay and discharge promptly all taxes, assessments, and
governmental charges or levies imposed upon Borrower or any such Subsidiary, its
property, or revenues prior to the date on which penalties attach thereto, as
well as all lawful claims for labor, material, supplies, or otherwise which, if
unpaid, might become a lien or charge upon Borrower's or any such Subsidiary's
property. Neither Borrower nor or any such Subsidiary shall, however, be
required to pay or discharge any such obligation, tax, assessment, charge, levy,
or claim so long as its enforceability, amount, or validity is contested in good
faith by appropriate proceedings.
7.10 Insurance.
Maintain commercially adequate levels of coverage with financially sound
and reputable insurers, including, without limitation:
(a) Property Insurance. Insurance on all property of a character
usually insured by organizations engaged in the same or similar type
of business as Borrower or any such Subsidiary against all usually
insured-against risks, casualties, and losses through extended
coverage or otherwise and of the kind customarily insured against by
such organizations;
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(b) Liability Insurance. Public liability insurance against tort
claims which may be asserted against Borrower or any such Subsidiary;
and
(c) Additional Insurance. Such other insurance as may be required by
law.
ARTICLE 8
Negative Covenants
So long as Banks have a commitment to make Advances under the Revolving
Loan, or any Obligations are outstanding, neither Borrower nor any of its
Subsidiaries shall, without prior written consent of Majority Banks (which
consent shall not be unreasonably withheld or delayed):
8.1 Securities Portfolio.
Create, incur, or assume, or agree to create, incur, or assume any lien,
whether consensual or nonconsensual, on any investment securities owned by
Borrower or any such Subsidiary.
8.2 Disposition of Assets.
Sell, transfer, lease, or otherwise assign or dispose of more than 10% of
Borrower's consolidated total assets, excluding transactions involving Xxxxxx
Properties Inc., to any Person, outside the ordinary course of business; nor
shall Borrower cease to own all common stock of Xxxxxx Broadcasting Inc., Xxxxxx
Xxxxx Inc., and Xxxxxx Properties Inc.
8.3 Mergers.
Become a party to a merger, consolidation, or like corporate change, other
than where Borrower or a Subsidiary is the surviving corporation, and neither
Section 7.2 nor 7.3 is thereby violated.
8.4 ERISA.
Engage in a Prohibited Transaction (as defined under ERISA) or a violation
of the fiduciary responsibility rules with respect to any Plan which has
resulted or could reasonably be expected to result in consolidated liability of
Borrower of $3,000,000 or more.
8.5 Dissolution.
Adopt an agreement or resolution for dissolving Borrower, Xxxxxx
Broadcasting Inc., Xxxxxx Xxxxx Inc., or Xxxxxx Properties Inc.
8.6 Permissible Investments.
Make any investment outside the ordinary course of Borrower's or any such
Subsidiary's business, except:
(a) Certificates of Deposit. Investments in certificates of deposit
maturing within one year from the date of acquisition from any one or
more of the top 000 xxxxxxxxxx xxxxx xx xxx Xxxxxx Xxxxxx;
(b) Commercial Paper. Prime commercial paper with maturities of less
than one year;
(c) U. S. Government Paper. Obligations issued or guaranteed by the
United States Government or its agencies; and
(d) Other Investments. Other investments, including but not limited
to capital investments in stock, shares, licenses, or other equity
interests in any businesses, not exceeding $25,000,000 in the
aggregate.
8.7 Permissible Loans.
Make any loans or other extensions of credit to any individual or entity
outside the ordinary course of business, except for loans or extensions of
credit that do not exceed an aggregate amount of $3,000,000 outstanding at any
one time, on a consolidated basis.
ARTICLE 9
Agent
9.1 Appointment and Authorization; "Agent".
Each Bank hereby irrevocably (subject to Section 9.9) appoints,
designates, and authorizes Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, Agent shall
not have any duties or responsibilities, except those expressly set forth in
this Agreement, nor shall Agent have or be deemed to have any fiduciary
relationship with any Bank, 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 Agent. Without
limiting the generality of the foregoing sentence, the use of the term "agent"
in this Agreement with reference to Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term is used merely as a
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matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties.
9.2 Delegation of Duties.
Agent may execute any of its duties under this Agreement or any other Loan
Document by or through agents, employees, or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
Agent shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
9.3 Liability of Agent.
None of the Agent-Related Persons shall (i) be liable for any action taken
or omitted to be taken by any of them under or in connection with this Agreement
or any other Loan Document or the transactions contemplated hereby (except for
its own gross negligence or willful misconduct), or (ii) be responsible in any
manner to any of the Banks for any recital, statement, representation, or
warranty made by Borrower or any Subsidiary or Affiliate of Borrower, or any
officer thereof, contained in this Agreement or in any other Loan Document, or
in any certificate, report, statement, or other document referred to or provided
for in, or received by Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness,
enforceability, or sufficiency of this Agreement or any other Loan Document, or
for any failure of Borrower or any other party to any Loan Document to perform
its obligations hereunder or thereunder. No Agent-Related Person shall be under
any obligation to any Bank 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 Borrower or any of Borrower's Subsidiaries or Affiliates.
9.4 Reliance by Agent.
(a) Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, consent, certificate,
affidavit, letter, telegram, facsimile, telex or telephone message,
statement, 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 counsel to Borrower), independent accountants, and
other experts selected by Agent. 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 Banks as it deems appropriate and, if it
so requests, it shall first be indemnified to its satisfaction by the
Banks against any and all liability and expense which may be incurred
by it by reason of taking or continuing to take any such action.
Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan
Document, in accordance with a request or consent of the Majority
Banks and such request and any action taken or failure to act pursuant
thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Article 5, each Bank that has executed this Agreement
shall be deemed to have consented to, approved, or accepted or to be
satisfied with, each document or other matter either sent by the Agent
to such Bank for consent, approval, acceptance, or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to such Bank.
9.5 Notice of Default.
Agent shall not be deemed to have knowledge or notice of the occurrence of
any Default, except with respect to defaults in the payment of principal,
interest, and fees required to be paid to Agent for the account of Banks, unless
Agent shall have received written notice from a Bank or Borrower referring to
this Agreement, describing such Default, and stating that such notice is a
"notice of default." Agent will notify Banks of its receipt of any such notice.
Agent shall take such action with respect to such Default as may be requested by
the Majority Banks in accordance with Article 10; provided, however, that unless
and until Agent has received any such request, Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable or in the best interest of Banks.
9.6 Credit Decision.
Each Bank acknowledges that none of the Agent-Related Persons has made any
representation or warranty to it, and that no act by Agent hereinafter taken,
including any review of the affairs of Borrower and its Subsidiaries, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Bank. Each Bank represents to Agent that it has, independently and
without reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial, and
other condition and creditworthiness of Borrower and its Subsidiaries, and all
applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend
credit to Borrower under this Agreement. Each Bank also represents that it will,
independently and without reliance upon any Agent-Related Person 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 investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial, and other condition and
creditworthiness of Borrower. Except for notices, reports, and other documents
expressly herein required to be furnished to Banks by Agent, Agent shall not
have any duty or responsibility to provide any Bank with any credit or other
information concerning the business, prospects,
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operations, property, financial, and other condition or creditworthiness of
Borrower which may come into the possession of any of the Agent-Related Persons.
9.7 Indemnification of Agent.
Whether or not the transactions contemplated by this Agreement are
consummated, Banks shall indemnify upon demand the Agent-Related Persons (to the
extent not reimbursed by or on behalf of Borrower and without limiting the
obligation of Borrower to do so), in accordance with their respective Pro Rata
Share, from and against any and all Indemnified Liabilities; provided, however,
that no Bank shall be liable for the payment to the Agent-Related Persons of any
portion of such Indemnified Liabilities resulting solely from such Person's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Bank shall reimburse Agent upon demand for its ratable share of any costs
or out-of-pocket expenses (including outside or in-house attorneys' fees)
incurred by Agent in connection with the preparation, execution, delivery,
administration, modification, amendment, or enforcement (whether through
negotiations, legal proceedings, insolvency proceedings, or otherwise) of, or
legal advice in respect of rights or responsibilities under, this Agreement, any
other Loan Document, or any document contemplated by or referred to in this
Agreement, to the extent that Agent is not reimbursed for such expenses by or on
behalf of Borrower. The undertaking in this Section shall survive the payment of
all Obligations and the resignation or replacement of Agent. For purposes of
this Section, "Indemnified Liabilities" shall mean any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses, and disbursements (including both outside and in-house
attorneys' fees) of any kind or nature whatsoever which may at any time
(including at any time following repayment of the Revolving Loan and the
termination, resignation, or replacement of the Agent or replacement of any
Bank) be imposed on, incurred by, or asserted against any such Person in any way
relating to or arising out of this Agreement or any document contemplated by or
referred to herein, or the transactions contemplated hereby, or any action taken
or omitted by any such Person under or in connection with any of the foregoing,
including with respect to any investigation, litigation, or proceeding
(including any insolvency proceeding or appellate proceeding) related to or
arising out of this Agreement or the Revolving Loan or the use of the proceeds
thereof.
9.8 Agent in Individual Capacity.
Seafirst and its Affiliates may make loans to, issue letters of credit for
the account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting, or other
business with Borrower and its Subsidiaries and Affiliates as though Seafirst
were not Agent hereunder and without notice to or consent of Banks. Banks
acknowledge that, pursuant to such activities, Seafirst or its Affiliates may
receive information regarding Borrower or its Affiliates (including information
that may be subject to confidentiality obligations in favor of Borrower or such
Subsidiary) and acknowledge that Agent shall be under no obligation to provide
such information to them. With respect to its Revolving Note, Seafirst shall
have the same rights and powers under this Agreement as any other Bank and may
exercise the same as though it were not Agent, and the terms "Bank" and "Banks"
include Seafirst in its individual capacity.
9.9 Successor Agent.
Agent may, and at the request of the Majority Banks shall, resign as Agent
upon 30 days' notice to Banks. If Agent resigns under this Agreement, the
Majority Banks shall appoint from among Banks a successor agent for Banks. If no
successor agent is appointed prior to the effective date of the resignation of
Agent, Agent may appoint, after consulting with Banks and Borrower, a successor
agent from among Banks. Upon the acceptance of its appointment as successor
agent hereunder, such successor agent shall succeed to all the rights, powers,
and duties of the retiring Agent and the term "Agent" shall mean such successor
agent; and the retiring Agent's appointment, powers, and duties as Agent shall
be terminated. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article 9 and Section 11.3 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent under this
Agreement. If no successor agent has accepted appointment as Agent by the date
which is 30 days following a retiring Agent's notice of resignation, the
retiring Agent's resignation shall nevertheless thereupon become effective and
the Banks shall perform all of the duties of Agent hereunder until such time, if
any, as the Majority Banks appoint a successor agent as provided for above.
ARTICLE 10
Events and Consequences of Default
10.1 Events of Default.
Any of the following events shall constitute a default by Borrower and
each of its Subsidiaries under the terms of this Agreement, the Revolving Notes,
and all other Loan Documents ("Default"); provided, that no event described in
Subsections 10.1 (d), (e), (f), or (g)(i) shall be deemed a Default unless such
event continues unremedied for 30 days after written notice thereof has been
given to Borrower by Agent; and provided, in the case of Subsection 10.1(b), if
the event is one which cannot reasonably be remedied within 30 days, such event
shall not be deemed a Default so long as Borrower is diligently pursuing a cure,
with such extended cure period to be no longer than six months after notice of
default has been given to Borrower by Agent:
(a) Nonpayment. Any payment or reimbursement due or demanded under
this Agreement or any Loan Document is not made within five days of
the date when due;
(b) Breach of Warranty. Any representation or warranty made in
connection with this Agreement or any other Loan Document, or any
certificate, notice, or report furnished pursuant
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hereto, is determined by any Bank to be false in any respect when
made, and is relied upon by such Bank to its detriment, or any of
Borrower's or any of its Subsidiaries' representations regarding the
"year 2000 problem" cease to be true, whether or not true when made,
and as a result Bank reasonably believes that Borrower's or any of its
Subsidiaries' financial condition or its ability to pay its debts as
they come due will thereby be materially impaired;
(c) Failure to Perform. Any other term, covenant, or agreement
contained in any Loan Document is not performed or satisfied, and, if
remediable, such failure continues unremedied for 30 days after
written notice thereof has been given to Borrower by Agent;
(d) Defaults on Other Obligations. There exists a default in the
performance of any other agreement or obligation for the payment of
borrowed money of $3,000,000 or more, for the deferred purchase price
of property or services, or for the payment of rent under any lease,
whether by acceleration or otherwise, which would permit such
obligation to be declared due and payable prior to its stated
maturity; and such default continues for 30 days after Borrower or the
Subsidiary so affected receives written notice thereof from the
creditor so affected;
(e) Guaranties. Any guarantor of all or any portion of the
Obligations revokes or attempts to revoke such guaranty, whether with
respect to future transactions or outstanding Obligations, or
otherwise breaches the terms and conditions of such guaranty;
(f) Loss, Destruction, or Condemnation of Property. A portion of
Borrower's or any of its Subsidiary's property is affected by any
uninsured loss, damage, destruction, theft, sale, or encumbrance other
than created herein or is condemned, seized, or appropriated, the
effect of which materially impairs Borrower's or any such Subsidiary's
financial condition or its ability to pay its debts as they come due;
(g) Attachment Proceedings and Insolvency. Borrower, any Subsidiary
or any of its respective property is affected by any:
(i) Judgment lien, execution, attachment, garnishment, general
assignment for the benefit of creditors, sequestration, or forfeiture,
to the extent Borrower's or any such Subsidiary's financial condition
or its ability to pay its debts as they come due is thereby materially
impaired; or
(ii) Proceeding under the laws of any jurisdiction relating to
receivership, insolvency, or bankruptcy, whether brought voluntarily
or involuntarily by or against Borrower or any such Subsidiary,
including, without limitation, any reorganization of assets, deferment
or arrangement of debts, or any similar proceeding, and, if such
proceeding is involuntarily brought against Borrower or such
Subsidiary, it is not dismissed within 60 days;
(h) Judgments. Final judgment on claims not covered by insurance
which, together with other outstanding final judgments against
Borrower or any of its Subsidiaries, exceeds $3,000,000, is rendered
against Borrower or any such Subsidiary and is not discharged,
vacated, or reversed, or its execution stayed pending appeal, within
60 days after entry, or is not discharged within 60 days after the
expiration of such stay; or
(i) Government Approvals. Any governmental approval, registration, or
filing with any governmental authority, now or later required in
connection with the performance by Borrower or any of its Subsidiaries
of its obligations under the Loan Documents, is revoked, withdrawn, or
withheld, or fails to remain in full force and effect, except Borrower
shall have 60 days after notice of any such event to take whatever
action is necessary to obtain all necessary approvals, registrations,
and filings, and provided that any such event shall not be deemed a
Default unless the financial condition of the Borrower and its
Subsidiaries, taken as a whole, or the ability of the Borrower and its
Subsidiaries, taken as a whole, to pay the Obligations, is thereby
materially impaired.
10.2 Remedies Upon Default.
If any Default occurs under Subsection 10.1 (g) (ii), the Banks'
commitment to make Advances shall immediately and automatically terminate (but
Agent shall have no liability to any other Bank for any Advances made by Agent
prior to Agent receiving actual notice of such occurrence, absent Agent's
willful misconduct or gross negligence), and all Obligations, including all
accrued interest, shall immediately and automatically become due and payable,
without presentment, demand, protest, or notice of any kind, all of which are
hereby expressly waived by Borrower, and Agent may immediately, upon receiving
notice of such an occurrence, exercise any or all of the following remedies for
Default; and if any other Default occurs and is continuing, Agent, upon
direction of Majority Banks, shall, by notice from Agent to Borrower:
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(a) Terminate Commitments. Terminate Banks' commitment to make
Advances;
(b) Suspend Commitments. Refuse to make further Advances until any
Default has been cured;
(c) Accelerate. Declare the Revolving Notes, together with all
accrued interest, to be immediately due and payable without
presentment, demand, protest, or notice of any kind, all of which are
hereby expressly waived by Borrower;
(d) Setoff. Exercise its right of setoff against deposit accounts of
Borrower and/or any Subsidiary with Bank, or place an administrative
freeze on any such accounts; and/or
(e) All Remedies. Pursue any other available legal and equitable
remedies.
In addition, each Bank shall have the right to set off against deposit accounts
of Borrower and/or each Subsidiary at such Bank any amounts owing under the
Obligations, including amounts in excess of such Bank's Pro Rata Share of the
outstanding balance of the Obligations. Any such amounts, and any other amounts
received by any Bank on account of the Obligations, other than from Agent, shall
be delivered to Agent to be distributed to each Bank in accordance with its
respective Pro Rata Share; provided, however, that if all or any portion of such
payment turned over from a Bank to Agent and distributed to each Bank is
thereafter recovered by Borrower or any such Subsidiary from such Bank, each
Bank shall, in accordance with its respective Pro Rata Share, reimburse such
other Bank for the amount so recovered. All of Banks' and Agent's rights and
remedies in all Loan Documents shall be cumulative and can be exercised
separately or concurrently. Borrower shall have no liability to any Bank with
respect to any sum that Agent receives in accordance with this Agreement and
fails to distribute to such Bank as required by this Agreement.
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ARTICLE 11
Miscellaneous
11.1 Manner of Payments.
(a) Payments on Nonbusiness Days. Whenever any event is to occur or
any payment is to be made under any Loan Document on any day other
than a Business Day, such event may occur or such payment may be made
on the next succeeding Business Day and such extension of time shall
be included in computation of interest in connection with any such
payment.
(b) Payments. All payments and prepayments to be made by Borrower
shall be made to Agent when due, at Agent's office as may be
designated by Agent, without offsets or counterclaims for any amounts
claimed by Borrower to be due from Agent or Banks, in U.S. dollars and
in immediately available funds.
(c) Application of Payments. All payments made by Borrower shall be
applied first against fees, expenses, and indemnities due; second,
against interest due; and third, against principal, with Agent having
the right, after a Default which is continuing, to apply any payments
or collections received against any one or more of the Obligations in
any manner which Banks, by unanimous consent, may choose. Except for
payments made by Borrower to Agent for fees and indemnities due Agent,
all payments made by Borrower shall be deemed to be made to Agent, as
agent for Banks in accordance with each Bank's Pro Rata Share, and
shall be distributed by Agent to Banks according to their respective
Pro Rata Share. Any such payments which are received by a Bank shall
be delivered immediately by such Bank to Agent for distribution to
Banks in accordance with this subsection.
(d) Recording of Payments. Agent is authorized to record on a
schedule or computer-generated statement the date and amount of each
Advance, all conversions between interest rate options, and all
payments of principal and interest. All such schedules or statements
shall constitute prima facie evidence of the accuracy of the
information so recorded.
11.2 Notices.
Agent may make Advances and conversions between interest rates based on
telephonic, telex, and oral requests made by any Person whom Agent in good faith
believes to be authorized to act on behalf of Borrower. All other notices,
demands, and other communications to be given pursuant to any of the Loan
Documents shall be in writing and shall be deemed received the earlier of when
actually received, or two days after being mailed, postage prepaid and addressed
as follows, or as later designated in writing:
Agent: Banks:
SEAFIRST BANK SEAFIRST BANK
Seafirst Agency Services Metropolitan Wholesale, Team 2
000 Xxxxx Xxxxxx, 00xx Xxxxx 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000 Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx Attention: Xxxxxx X. Xxxxxx III
Borrower:
XXXXXX COMPANIES INC. U.S. BANK NATIONAL ASSOCIATION
0000 Xxx Xxxxx Xxxxxx 0000 Xxxxx Xxxxxx, Xxxxx 11
000 Xxxxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxxxxx 00000
Xxxxxxx, Xxxxxxxxxx 00000 Attention: Xxxxx Xxxxxxx
Attention: Xxxxx X. Xxxxxxx
11.3 Documentation Expenses.
Borrower shall pay, reimburse, and indemnify Agent and Banks for all of
Agent's and Banks' reasonable costs and expenses, including, without limitation,
all accounting, appraisal, and report preparation fees or expenses, all
attorneys' fees (including the allocated cost of in-house counsel), legal
expenses, and recording or filing fees, incurred in connection with the
negotiation, preparation, and execution of this Agreement and all other Loan
Documents, and all amendments, supplements, or modifications thereto, and the
perfection of all security interests, liens, or encumbrances that may be granted
to Banks. Borrower acknowledges that any legal counsel retained or employed by
Agent or Banks acts solely on Agent's and Banks' behalf and not on Borrower's
behalf, despite Borrower's obligation to reimburse Agent and Banks for the cost
of such legal counsel, and that Borrower has had sufficient opportunity to seek
the advice of its own legal counsel with regard to this Agreement.
11.4 Collection Expenses.
The nonprevailing party shall, upon demand by the prevailing party,
reimburse the prevailing party for all of its costs, expenses, and reasonable
attorneys' fees (including the allocated cost of in-house
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counsel) incurred in connection with any controversy or claim between said
parties relating to this Agreement or any of the other Loan Documents, or to an
alleged tort arising out of the transactions evidenced by this Agreement,
including those incurred in any action, bankruptcy proceeding, arbitration or
other alternative dispute resolution proceeding, or appeal, or in the course of
exercising any judicial or nonjudicial remedies.
11.5 Waiver.
No failure to exercise and no delay in exercising, on the part of Agent or
Banks, any right, power, or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power, or
privilege hereunder preclude any other or further exercise thereof, or the
exercise of any other right, power, or privilege. Further, no waiver or
indulgence by Agent or Banks of any Default shall constitute a waiver of Agent's
and Banks' right to declare a subsequent similar failure or event to be a
Default.
11.6 Assignment.
This Agreement is made expressly for the sole benefit of Borrower and for
the protection of Agent and Banks and their respective successors and assigns.
The rights of Borrower hereunder shall not be assignable by operation of law or
otherwise, without the prior written consent of Agent and Banks. Neither Bank
may assign its rights to another Bank or to any other financial institution
without the prior written consent of Borrower and Agent, which consent shall not
be unreasonably withheld; provided that such consent shall not be required if a
Default has occurred and is continuing.
11.7 Merger.
The rights and obligations set forth in this Agreement shall not merge
into or be extinguished by any of the Loan Documents, but shall continue and
remain valid and enforceable. This Agreement and the other Loan Documents
constitute Agent's and Banks' entire agreement with Borrower with regard to the
Revolving Loan, and supersede all prior writings and oral negotiations. No oral
or written representation, covenant, commitment, waiver, or promise of either
Agent, any Bank, Borrower, or any of its Subsidiaries shall have any effect,
whether made before or after the date of this Agreement, unless contained in
this Agreement or another Loan Document, or in an amendment complying with
Section 11.8. ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, TO EXTEND
CREDIT, OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE
UNDER WASHINGTON LAW.
11.8 Amendments.
No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent with respect to any departure by Borrower or any
Subsidiary therefrom, shall be effective unless the same shall be in writing and
signed by the Majority Banks (or by Agent at the written request of the Majority
Banks) and Borrower and acknowledged by Agent, and then any such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such waiver, amendment, or
consent shall, unless in writing and signed by all the Banks and Borrower and
acknowledged by Agent, do any of the following:
(a) increase or extend the commitment of any Bank to make Advances (or
reinstate any such commitment terminated pursuant to Section 10.2(a));
(b) postpone or delay any date fixed by this Agreement or any other
Loan Document for any payment of principal, interest, fees, or other
amounts due to Banks (or any of them) hereunder or under any other
Loan Document;
(c) reduce the principal of, or the rate of interest specified herein
on any Advance, or (subject to clause (ii) below) any fees or other
amounts payable hereunder or under any other Loan Document;
(d) change the percentage of total Pro Rata Shares which is required
for Banks or any of them to take any action hereunder; or
(e) amend this Section or any provision herein providing for consent
or other action by all Banks;
and, provided further, that (i) no amendment, waiver, or consent shall, unless
in writing and signed by Agent in addition to the Majority Banks or all Banks,
as the case may be, affect the rights or duties of Agent under this Agreement or
any other Loan Document, and (ii) the fee letters referred to in Section 5.4 may
be amended, or rights or privileges thereunder waived, in a writing executed by
the parties thereto.
11.9 Mandatory Arbitration.
(a) At the request of Agent, any Bank, or Borrower, any controversy or
claim between Agent and Banks and Borrower, arising from or relating
to this Agreement or any of the other Loan Documents, or arising from
an alleged tort, shall be settled by arbitration in Seattle,
Washington. The United States Arbitration Act shall apply even though
this Agreement is otherwise governed by Washington law. The
proceedings shall be administered by the American
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Arbitration Association under its commercial rules of arbitration. Any
controversy over whether an issue is arbitrable shall be determined by
the arbitrator(s). Judgment upon the arbitration award may be entered
in any court having jurisdiction over the parties. The institution and
maintenance of an action for judicial relief or pursuit of an
ancillary or provisional remedy shall not constitute a waiver of the
right of either party, including the plaintiff, to submit the
controversy or claim to arbitration if such action for judicial relief
is contested. For purposes of the application of the statute of
limitations, the filing of an arbitration pursuant to this subsection
is the equivalent of the filing of a lawsuit, and any claim or
controversy which may be arbitrated under this subsection is subject
to any applicable statute of limitations. The arbitrator(s) will have
the authority to decide whether any such claim or controversy is
barred by the statute of limitations and, if so, to dismiss the
arbitration on that basis. The parties consent to the joinder of any
guarantor, hypothecator, or other party having an interest relating to
the claim or controversy being arbitrated in any proceedings under
this Section.
(b) Notwithstanding the provisions of subsection 11.9(a), no
controversy or claim shall be submitted to arbitration without the
consent of all parties if at the time of the proposed submission, such
controversy or claim arises from or relates to an obligation secured
by real property.
(c) No provision of this subsection shall limit the right of Borrower
or Agent or Banks to exercise self-help remedies such as set-off,
foreclosure, retention or sale of any collateral, or obtaining any
ancillary, provisional, or interim remedies from a court of competent
jurisdiction before, after, or during the pendency of any arbitration
proceeding. The exercise of any such remedy does not waive the right
of either party to request arbitration.
11.10 Construction.
Each term of this Agreement and each Loan Document shall be binding to the
extent permitted by law and shall be governed by the laws of the State of
Washington, excluding its conflict of laws rules. If one or more of the
provisions of this Agreement should be invalid, illegal, or unenforceable in any
respect, the remaining provisions of this Agreement shall remain effective and
enforceable. If there is a conflict among the provisions of any Loan Documents,
the provisions of this Agreement shall be controlling. The captions and
organization of this Agreement are for convenience only, and shall not be
construed to affect any provision of this Agreement.
11.11 Counterparts.
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures to such
counterparts were upon the same instrument. This Agreement shall become
effective when Agent shall have received counterparts of the Agreement signed by
all of the parties to the Agreement.
DATED May 26, 1998.
Borrower: Agent:
XXXXXX COMPANIES INC. SEAFIRST BANK
By /s/ Xxxxx X. Xxxxxxx By /s/ Xxxx X. Xxxxx
Title Senior Vice President Title Vice President
Banks:
SEAFIRST BANK U.S. BANK NATIONAL ASSOCIATION
By /s/ Xxxxxx X. Xxxxxx, III By /s/ Xxxxx Xxxxxxx
Title Vice President Title Senior Vice President
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Consent of Subsidiaries/Guarantors
The undersigned Subsidiaries, which are also guarantors of the Obligations,
acknowledge receipt of a copy of the above Agreement, consent to its contents,
and agree to each representation, warranty, and covenant applicable to them
therein.
DATED May 26, 1998.
XXXXXX BROADCASTING INC. XXXXXX PROPERTIES INC.
By /s/ Xxxxxxx X. Xxxxx By /s/ Xxxx X. Xxxx
Title President & CEO Title President
XXXXXX XXXXX INC.
By /s/ Xxxxx Xxxxxxx
Title President
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