1
EXHIBIT 99.1
EXECUTION COPY
SECOND AMENDED AND RESTATED LOAN AGREEMENT
DATED AS OF OCTOBER 1, 1999
BY AND AMONG
XXXX COMMUNICATIONS SYSTEMS, INC.,
AS BORROWER;
THE FINANCIAL INSTITUTIONS SIGNATORY HERETO,
AS LENDERS;
AND
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT FOR THE LENDERS
WITH
BANC OF AMERICA SECURITIES LLC
AS LEAD ARRANGER AND
BOOK MANAGER;
KEY CORPORATE CAPITAL, INC.,
AS DOCUMENTATION AGENT;
AND
FIRST UNION NATIONAL BANK,
AS SYNDICATION AGENT
POWELL, GOLDSTEIN, XXXXXX & XXXXXX LLP
ATLANTA, GEORGIA
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SECOND AMENDED AND RESTATED
LOAN AGREEMENT
among
XXXX COMMUNICATIONS SYSTEMS, INC.,
as Borrower;
THE FINANCIAL INSTITUTIONS SIGNATORY HERETO,
as Lenders;
and
BANK OF AMERICA, N.A.,
as Administrative Agent for the Lenders
INDEX
Page
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ARTICLE 1 - Definitions 2
Section 1.1 Defined Terms................................................................................2
Section 1.2 Interpretation..............................................................................25
Section 1.3 Cross References............................................................................25
Section 1.4 Accounting Provisions.......................................................................25
ARTICLE 2 - Loans and Letters of Credit. 25
Section 2.1 The Loans...................................................................................25
Section 2.2 Manner of Borrowing and Disbursement........................................................26
Section 2.3 Interest....................................................................................29
Section 2.4 Fees........................................................................................31
Section 2.5 Mandatory Commitment Reductions.............................................................32
Section 2.6 Voluntary Commitment Reductions.............................................................33
Section 2.7 Prepayments and Repayments..................................................................33
Section 2.8 Notes; Loan Accounts........................................................................36
Section 2.9 Manner of Payment...........................................................................37
Section 2.10 Reimbursement...............................................................................38
Section 2.11 Pro Rata Treatment..........................................................................39
Section 2.12 Capital Adequacy............................................................................39
Section 2.13 Lender Tax Forms............................................................................40
Section 2.14 Letters of Credit...........................................................................40
ARTICLE 3 - Conditions Precedent 45
Section 3.1 Conditions Precedent to Effectiveness of Agreement..........................................45
Section 3.2 Conditions Precedent to Each Advance........................................................48
Section 3.3 Conditions Precedent to Issuance of Letters of Credit.......................................49
ARTICLE 4 - Representations and Warranties 50
Section 4.1 Representations and Warranties..............................................................50
Section 4.2 Survival of Representations and Warranties, etc.............................................59
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ARTICLE 5 - General Covenants 60
Section 5.1 Preservation of Existence and Similar Matters...............................................60
Section 5.2 Business; Compliance with Applicable Law....................................................60
Section 5.3 Maintenance of Properties...................................................................60
Section 5.4 Accounting Methods and Financial Records....................................................60
Section 5.5 Insurance...................................................................................61
Section 5.6 Payment of Taxes and Claims.................................................................61
Section 5.7 Compliance with ERISA.......................................................................62
Section 5.8 Visits and Inspections......................................................................63
Section 5.9 Payment of Indebtedness; Loans..............................................................63
Section 5.10 Use of Proceeds.............................................................................63
Section 5.11 Indemnity...................................................................................64
Section 5.12 Interest Rate Hedging.......................................................................64
Section 5.13 Covenants Regarding Formation of Subsidiaries and Acquisitions; Partnership, Subsidiaries...65
Section 5.14 Payment of Wages............................................................................66
Section 5.15 Further Assurances..........................................................................66
Section 5.16 License Subs................................................................................66
Section 5.17 Year 2000 Compliance........................................................................66
Section 5.18 Maintenance of Network Affiliations; Operating Agreements...................................67
Section 5.19 Ownership Reports...........................................................................67
Section 5.20 Environmental Compliance and Indemnity......................................................67
ARTICLE 6 - Information Covenants 68
Section 6.1 Quarterly Financial Statements and Information..............................................68
Section 6.2 Annual Financial Statements and Information.................................................69
Section 6.3 Monthly Financial Information...............................................................69
Section 6.4 Performance Certificates....................................................................69
Section 6.5 Copies of Other Reports.....................................................................70
Section 6.6 Notice of Litigation and Other Matters......................................................71
ARTICLE 7 - Negative Covenants 72
Section 7.1 Indebtedness of the Borrower and its Subsidiaries...........................................72
Section 7.2 Limitation on Liens.........................................................................73
Section 7.3 Amendment and Waiver........................................................................73
Section 7.4 Liquidation, Merger or Disposition of Assets................................................74
Section 7.5 Limitation on Guaranties....................................................................74
Section 7.6 Investments and Acquisitions................................................................74
Section 7.7 Restricted Payments; Restricted Purchases...................................................76
Section 7.8 Senior Leverage Ratio.......................................................................77
Section 7.9 Interest Coverage Ratio.....................................................................77
Section 7.10 Fixed Charge Coverage Ratio.................................................................78
Section 7.11 Pro Forma Debt Service Coverage Ratio.......................................................78
Section 7.12 Leverage Ratio..............................................................................78
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Section 7.13 Adjusted Leverage Ratio.....................................................................78
Section 7.14 Limitation on Capital Expenditures..........................................................79
Section 7.15 Affiliate Transactions......................................................................79
Section 7.16 Real Estate.................................................................................79
Section 7.17 ERISA Liabilities...........................................................................79
Section 7.18 No Limitation on Upstream Dividends by Subsidiaries.........................................79
ARTICLE 8 - Default 80
Section 8.1 Events of Default...........................................................................80
Section 8.2 Remedies....................................................................................83
Section 8.3 Payments Subsequent to Declaration of Event of Default......................................85
ARTICLE 9 - The Administrative Agent 86
Section 9.1 Appointment and Authorization...............................................................86
Section 9.2 Interest Holders............................................................................86
Section 9.3 Consultation with Counsel...................................................................86
Section 9.4 Documents...................................................................................86
Section 9.5 Administrative Agent and Affiliates.........................................................87
Section 9.6 Responsibility of the Administrative Agent and the Issuing Bank.............................87
Section 9.7 Action by the Administrative Agent and the Issuing Bank.....................................87
Section 9.8 Notice of Default or Event of Default.......................................................88
Section 9.9 Responsibility Disclaimed...................................................................88
Section 9.10 Indemnification.............................................................................89
Section 9.11 Credit Decision.............................................................................89
Section 9.12 Successor Administrative Agent..............................................................89
Section 9.13 Delegation of Duties........................................................................90
Section 9.14 Lead Arranger and Book Manager; Syndication Agent; Documentation Agent......................90
ARTICLE 10 - Change in Circumstances Affecting LIBOR Advances 90
Section 10.1 LIBOR Basis Determination Inadequate or Unfair..............................................90
Section 10.2 Illegality..................................................................................91
Section 10.3 Increased Costs.............................................................................91
Section 10.4 Effect On Other Advances....................................................................92
ARTICLE 11 - Miscellaneous 93
Section 11.1 Notices.....................................................................................93
Section 11.2 Expenses....................................................................................94
Section 11.3 Waivers.....................................................................................95
Section 11.4 Set-Off.....................................................................................95
Section 11.5 Assignment..................................................................................95
Section 11.6 Accounting Principles.......................................................................98
Section 11.7 Counterparts................................................................................99
Section 11.8 Governing Law...............................................................................99
Section 11.9 Severability................................................................................99
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Section 11.10 Interest....................................................................................99
Section 11.11 Table of Contents and Headings.............................................................100
Section 11.12 Amendment and Waiver.......................................................................100
Section 11.13 Entire Agreement...........................................................................100
Section 11.14 Other Relationships........................................................................101
Section 11.15 Directly or Indirectly.....................................................................101
Section 11.16 Reliance on and Survival of Various Provisions.............................................101
Section 11.17 Senior Debt................................................................................101
Section 11.18 Obligations Several........................................................................101
ARTICLE 12 - Waiver of Jury Trial 101
Section 12.1 Waiver of Jury Trial.......................................................................101
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EXHIBITS
Exhibit A - Form of Assignment and Assumption Agreement
Exhibit B - Form of Borrower Pledge Agreement
Exhibit C - Form of Borrower Security Agreement
Exhibit D - Form of Certificate of Financial Condition
Exhibit E - Form of Request for Advance
Exhibit F - Form of Request for Issuance of Letter of Credit
Exhibit G-1 - Form of Revolving Loan Note
Exhibit G-2 - Form of Term Loan A Note
Exhibit G-3 - Form of Term Loan B Note
Exhibit H - Form of Subsidiary Guaranty
Exhibit I - Form of Subsidiary Pledge Agreement
Exhibit J - Form of Subsidiary Security Agreement
Exhibit K-1 - Form of Borrower Loan Certificate
Exhibit K-2 - Form of Subsidiary Loan Certificate
Exhibit L - Form of Performance Certificate
Exhibit M-1 - Form of Assignment of General Partner Interests
Exhibit M-2 - Form of Assignment of Limited Partner Interests
SCHEDULES
Schedule 1 Lender's Commitment Ratios and Notice Addresses
Schedule 2 Liens
Schedule 3 Stations, Newspapers, Porta-Phone Paging Business, Satellite
Broadcasting Business, Operating Agreements and Licenses
Schedule 4 Subsidiaries
Schedule 5 Litigation
Schedule 6 Affiliate Transactions
Schedule 7 Indebtedness
Schedule 8 Trademarks, Patents, Copyrights
Schedule 9 Labor Matters
Schedule 10 Environmental Matters
Schedule 11 Real Property
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SECOND AMENDED AND RESTATED LOAN AGREEMENT
THIS SECOND AMENDED AND RESTATED LOAN AGREEMENT (this "Agreement") is
entered into as of this 1st day of October, 1999 by and among XXXX
COMMUNICATIONS SYSTEMS, INC., a Georgia corporation (the "Borrower"), THE
FINANCIAL INSTITUTIONS SIGNATORY HERETO (the "Lenders") and BANK OF AMERICA,
N.A., as administrative agent (the "Administrative Agent"),
W I T N E S S E T H:
WHEREAS, the Borrower, the Syndication Agent and the Administrative
Agent (each as defined in the Prior Loan Agreement as hereinafter defined), and
certain of the Lenders are all parties to the Prior Loan Agreement; and
WHEREAS, the Borrower has requested that the Administrative Agent and
the Lenders consent to certain amendments to the Prior Loan Agreement, as more
fully set forth in this Agreement; and
WHEREAS, the Administrative Agent and the Lenders have agreed to amend
and restate the Prior Loan Agreement, as more fully set forth in this Agreement;
and
WHEREAS, the Borrower acknowledges and agrees that the security
interest granted to the Administrative Agent (as defined in the Prior Loan
Agreement), for itself and on behalf of the Documentation Agent, the Syndication
Agent and the Lenders (each as defined in the Prior Loan Agreement) pursuant to
the Prior Loan Agreement and the Collateral Documents (as defined in the Prior
Loan Agreement) executed in connection therewith shall remain outstanding and in
full force and effect in accordance with the Prior Loan Agreement and shall
continue to secure the Obligations (as hereinafter defined); and
WHEREAS, the Borrower acknowledges and agrees that: (i) the Obligations
(as hereinafter defined) represent, among other things, the amendment,
restatement, renewal, extension, consolidation and modification of the
Obligations (as defined in the Prior Loan Agreement) arising in connection with
the Prior Loan Agreement and the other Collateral Documents executed in
connection therewith; (ii) the parties hereto intend that the Prior Loan
Agreement and the other Collateral Documents executed in connection therewith
and the collateral pledged thereunder shall secure, without interruption or
impairment of any kind, all existing Indebtedness under the Prior Loan Agreement
and the other Collateral Documents executed in connection therewith, as so
amended, restated, restructured, renewed, extended, consolidated and modified
hereunder, together with Obligations (as hereinafter defined), (iii) all Liens
evidenced by the Prior Loan Agreement and the other Collateral Documents
executed in connection therewith are hereby ratified, confirmed and continued;
and (iv) the Loan Documents (as hereinafter defined) are intended to
restructure, restate, renew, extend, consolidate, amend and modify the Prior
Loan Agreement and the other Collateral Documents executed in connection
therewith; and
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WHEREAS, the parties hereto intend that (i) the provisions of the Prior
Loan Agreement and the other Collateral Documents executed in connection
therewith, to the extent restructured, restated, renewed, extended,
consolidated, amended and modified hereby, are hereby superseded and replaced by
the provisions hereof and of the Loan Documents; and (ii) the Notes (as
hereinafter defined) amend, renew, extend, modify, replace, are substituted for
and supersede in their entirety, but do not extinguish the indebtedness arising
under, the promissory notes issued pursuant to the Prior Loan Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto, the
parties hereby amend and restate the Prior Loan Agreement as follows:
ARTICLE 1
Definitions
Section 1.1 Defined Terms. The following terms when used in this
Agreement shall have the following meanings:
"Acquisition" shall mean (whether by purchase, lease, exchange,
issuance of stock or other equity or debt securities, merger, reorganization or
any other method) (a) any acquisition by the Borrower or any Subsidiary of the
Borrower of any other Person, which Person shall then become consolidated with
the Borrower or any such Subsidiary in accordance with GAAP; (b) any acquisition
by the Borrower or any Subsidiary of the Borrower of all or substantially all of
the assets of any other Person; or (c) any other acquisition by the Borrower or
any Subsidiary of the Borrower of the assets of another Person which acquisition
is not in the ordinary course of business for the Borrower or such Subsidiary.
"Adjusted Leverage Ratio" shall mean, as of any date, the ratio of (a)
the difference between (i) Total Debt as of such date minus (ii) the aggregate
amount of the Borrower's cash and marketable securities then on hand, not to
exceed $5,000,000.00 to (b) Operating Cash Flow for the four (4) quarter period
then ended or most recently ended.
"Administrative Agent" shall mean Bank of America, N.A., in its
capacity as Administrative Agent for the Lenders or any successor Administrative
Agent appointed pursuant to Section 9.12 hereof.
"Administrative Agent's Office" shall mean the office of the
Administrative Agent located at Agency Services, NC1-001-15-04, Independence
Center, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000, or such other office as may
be designated pursuant to the provisions of Section 11.1 hereof.
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"Advance" shall mean amounts advanced by the Lenders to the Borrower
pursuant to Article 2 hereof on the occasion of any borrowing and having the
same Interest Rate Basis and Interest Period; and "Advances" shall mean more
than one Advance.
"Affiliate" shall mean, with respect to a Person, any other Person
directly or indirectly controlling, controlled by, or under common control with,
such first Person. For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. "Affiliate" shall also
mean any beneficial owner of Ownership Interests representing ten percent (10%)
or more of the total voting power of such Ownership Interests (on a fully
diluted basis) of the Borrower or of rights or warrants to purchase such
Ownership Interests (whether or not currently exercisable) and any Person who
would be an Affiliate of any such beneficial owner pursuant to the first
sentence hereof. Unless otherwise specified, "Affiliate" shall mean an Affiliate
of the Borrower.
"Agreement" shall mean this Second Amended and Restated Loan Agreement,
as amended, supplemented, restated or otherwise modified from time to time.
"Agreement Date" shall mean the date as of which this Agreement is
dated.
"Applicable Law" shall mean, in respect of any Person, all provisions
of constitutions, statutes, rules, regulations and orders of governmental bodies
or regulatory agencies applicable to such Person, including, without limitation,
the Communications Act, zoning ordinances and all Environmental Laws, and all
orders, decisions, judgments and decrees of all courts and arbitrators in
proceedings or actions to which the Person in question is a party or by which it
is bound.
"Applicable Margin" shall mean the interest rate margin applicable to
Base Rate Advances and LIBOR Advances, as the case may be, in each case
determined in accordance with Section 2.3(f) hereof.
"Approved Fund" shall mean, with respect to any Lender that is a fund
that invests in commercial loans, any other fund that invests in commercial
loans and is managed or advised by the same investment advisor as such Lender or
by an Affiliate of such investment advisor.
"Asset Sale" shall mean the sale, lease, transfer or other disposition
by the Borrower or any of its Subsidiaries to any Person of any of the stock,
partnership interests or other equity interests of any Subsidiary or any other
assets of the Borrower or any Subsidiary.
"Assignment and Assumption Agreement" shall mean any Assignment and
Assumption Agreement substantially in the form of Exhibit A attached hereto
pursuant to which any Lender, as further provided in Section 11.5 hereof, sells
a portion of its Commitments and/or Loans.
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"Assignment of General Partner Interests" shall mean any Assignment of
General Partner Interests between the Borrower or any of its Subsidiaries, on
the one hand, and the Administrative Agent, on the other hand, or any supplement
thereto or confirmation thereof, in form and substance satisfactory to the
Administrative Agent, or any similar agreement substantially in form of Exhibit
M-1 attached hereto.
"Assignment of Limited Partner Interests" shall mean any Assignment of
Limited Partner Interests between the Borrower or any of its Subsidiaries, on
the one hand, and the Administrative Agent, on the other hand, or any supplement
thereto or confirmation thereof, in form and substance satisfactory to the
Administrative Agent, or any similar agreement substantially in the form of
Exhibit M-2 attached hereto.
"Authorized Signatory" shall mean such senior personnel of a Person as
may be duly authorized and designated in writing from time to time by such
Person to execute documents, agreements and instruments on behalf of such
Person.
"Available Letter of Credit Commitment" shall mean, at any time, the
lesser of (a) (i) $15,000,000.00, minus (ii) all Letter of Credit Obligations
then outstanding, and (b) (i) the Available Revolving Loan Commitment.
"Available Revolving Loan Commitment" shall mean, as of any date, (a)
the Revolving Loan Commitment in effect on such date minus (b) the sum of (i)
the aggregate amount of all Letter of Credit Obligations then outstanding and
(ii) the Revolving Loans then outstanding.
"Base Rate" shall mean, at any time, a fluctuating interest rate per
annum equal to the higher of (a) the rate of interest quoted from time to time
by the Administrative Agent as its "prime rate" or "base rate" or (b) the
Federal Funds Rate plus one-half of one percent (1/2%). The Base Rate is not
necessarily the lowest rate of interest charged by the Administrative Agent in
connection with extensions of credit.
"Base Rate Advance" shall mean an Advance which the Borrower requests
to be made as or converted to a Base Rate Advance, in accordance with the
provisions of Section 2.2 hereof, and which shall be in a principal amount of at
least $500,000.00, and in an integral multiple of $200,000.00.
"Base Rate Basis" shall mean a simple interest rate equal to the sum of
(i) the Base Rate and (ii) the Applicable Margin applicable to Base Rate
Advances. The Base Rate Basis shall be adjusted automatically as of the opening
of business on the effective date of each change in the Base Rate to account for
such change, and shall also be adjusted to reflect changes of the Applicable
Margin applicable to Base Rate Advances.
"Borrower" shall mean Xxxx Communications Systems, Inc., a Georgia
corporation.
"Borrower Pledge Agreement" shall mean, collectively, that certain
Second Amended and Restated Borrower Pledge Agreement dated as of the Agreement
Date by and between the
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Borrower and the Administrative Agent, or any supplement thereto or confirmation
thereof, in form and substance satisfactory to the Administrative Agent, or any
other similar agreement substantially in the form of Exhibit B attached hereto,
pursuant to which the Borrower has pledged to the Administrative Agent, for
itself and on behalf of the Lenders, all of the Borrower's Ownership Interests
in any of its Subsidiaries existing on the Agreement Date or formed or acquired
by the Borrower after the Agreement Date.
"Borrower Security Agreement" shall mean, collectively, that certain
Second Amended and Restated Borrower Security Agreement dated as of the
Agreement Date by and between the Borrower and the Administrative Agent, or any
supplement thereto or confirmation thereof, in form and substance satisfactory
to the Administrative Agent, or any other similar agreement substantially in the
form of Exhibit C attached hereto.
"Broker/Dealer" shall mean, with respect to any Investment or
Acquisition permitted under Section 7.6 hereof, (a) any broker/dealer (acting as
principal) registered as a broker or a dealer under Section 15 of the Exchange
Act, the unsecured short-term debt obligations of which are rated "P-1" by
Xxxxx'x Investors Service, Inc. and at least "A-1" by Standard and Poor's
Ratings Group, a division of The XxXxxx-Xxxx Companies, Inc., at the time of
entering into such Investment or Acquisition or (b) an unrated, broker/dealer,
acting as principal, that is a wholly-owned Subsidiary of a non-bank or bank
holding company, the unsecured short-term debt obligations of which are rated
"P-1" by Xxxxx'x Investors Service, Inc. and at least "A-1" by Standard and
Poor's Ratings Group, a division of The XxXxxx-Xxxx Companies, Inc., at the time
of entering into such Investment or Acquisition.
"Business Day" shall mean a day on which banks and foreign exchange
markets are open for the transaction of business required for this Agreement in
Atlanta, Georgia and London, England, as relevant to the determination to be
made or the action to be taken.
"Capital Expenditures" shall mean any payments by the Borrower or any
of its Subsidiaries for or in connection with the rental, lease, purchase,
construction or use of any real or personal property, the value or cost of
which, under GAAP, should be capitalized and appear on the Borrower's or such
Subsidiary's balance sheet in the category of property, plant or equipment,
without regard to the manner in which such payments or the instrument pursuant
to which they are made are characterized by the Borrower or such Subsidiary or
any other Person; provided, however, that neither (a) the capitalized portion of
the purchase price payable in connection with the Texas Acquisition or any other
Acquisition permitted hereunder, nor (b) expenditures of proceeds of insurance
policies reasonably and promptly applied to replace insured assets, shall
constitute a Capital Expenditure for purposes of this Agreement.
"Capitalized Lease Obligation" shall mean that portion of any
obligation of a Person as lessee under a lease which at the time would be
required to be capitalized on the balance sheet of such lessee in accordance
with GAAP.
"Cash Equivalents" shall mean, as of any date of determination, (a)
marketable securities (i) issued or directly and unconditionally guaranteed as
to interest and principal by the United
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States government or (ii) issued by any agency of the United States government
the obligations of which are backed by the full faith and credit of the United
States of America, in each case maturing within one (1) year after such date;
(b) marketable direct obligations issued by any state of the United States or
any political subdivision of any such state or any public instrumentality
thereof, in each case maturing within one (1) year after such date and having,
at the time of the acquisition thereof, the highest rating obtainable from
either Standard & Poor's Ratings Group or Xxxxx'x Investors Service, Inc.; (c)
commercial paper, money-market funds and business savings accounts issued by
corporations, each of which shall have a combined net worth of at least
$100,000,000.00 and each of which conducts a substantial part of its business in
the United States, maturing within two hundred seventy (270) days from the date
of the original issue thereof, and rated "P-2" or better by Xxxxx'x Investors
Service, Inc. or "A-2" or better by Standard & Poor's Ratings Group, a division
of The XxXxxx-Xxxx Companies, Inc.; (d) certificates of deposit or bankers'
acceptances maturing within one (1) year after such date and issued or accepted
by any Lender or by any commercial bank organized under the laws of the United
States or any state thereof or the District of Columbia that (i) is at least
"adequately capitalized" (as defined in the regulations of its primary Federal
banking regulator) and (ii) has Tier 1 capital (as defined in the regulations)
of not less than $100,000,000.00; and (e) shares of any money market mutual fund
that (i) has at least ninety-five percent (95%) of its assets invested
continuously in the types of investments referred to in clauses (a), (b) and (c)
above, (ii) has net assets of not less than $500,000,000.00, and (iii) has the
highest rating obtainable from either Standard & Poor's Ratings Group, a
division of The XxXxxx-Xxxx Companies, Inc., or Xxxxx'x Investors Service, Inc.
"Certificate of Financial Condition" shall mean a certificate dated the
Agreement Date, substantially in the form of Exhibit D attached hereto, signed
by the chief financial officer of the Borrower, together with any schedules,
exhibits or annexes appended thereto.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean any property of any kind constituting
collateral for the Obligations under any of the Security Documents.
"Commercial Letter of Credit shall mean a documentary letter of credit
issued in respect of the purchase of goods or services by the Borrower or its
Subsidiaries by the Issuing Bank in accordance with the terms hereof.
"Commitments" shall mean, collectively, the Revolving Loan Commitment,
the Term Loan A Commitment and the Term Loan B Commitment.
"Commitment Ratio" shall mean, with respect to any Lender for any
Commitment, the percentage equivalent of the ratio which such Lender's portion
of such Commitment (or, in the case of Term Loan A or Term Loan B after the
Agreement Date, such Lender's portion of such Loan) bears to the aggregate
amount of such Commitment or Loan, as the case may be (as each may be adjusted
from time to time as provided herein); and "Commitment Ratios" shall mean, with
respect to any Commitment, the Commitment Ratios of all of the Lenders with
respect to
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such Commitment. As of the Agreement Date, the Commitment Ratios of the Lenders
party to this Agreement are as set forth on Schedule 1 attached hereto.
"Communications Act" shall mean the Communications Act of 1934, and any
similar or successor federal statute, and the rules and regulations of the FCC
thereunder, all as the same may be in effect from time to time.
"Continue", "Continuation" and "Continued" shall mean the continuation
pursuant to Article 2 hereof of a LIBOR Advance as a LIBOR Advance from one
Interest Period to the next Interest Period.
"Convert", "Conversion" and "Converted" shall mean a conversion
pursuant to Article 2 hereof of a LIBOR Advance into a Base Rate Advance or of a
Base Rate Advance into a LIBOR Advance, as applicable.
"Default" shall mean any Event of Default, and any of the events
specified in Section 8.1 hereof, regardless of whether there shall have occurred
any passage of time or giving of notice, or both, that would be necessary in
order to constitute such event an Event of Default.
"Default Rate" shall mean a simple per annum interest rate equal to the
sum of (a) the applicable Base Rate Basis and (b) two percent (2%).
"Documentation Agent" shall mean Key Corporate Capital, Inc.
"Employee Pension Plan" shall mean any Plan which is maintained by the
Borrower, any of its Subsidiaries or any ERISA Affiliate.
"Environmental Claim" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any governmental authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law, (ii) in connection with any
Hazardous Materials or any actual or alleged Hazardous Materials Activity, or
(iii) in connection with any actual or alleged damage, injury, threat or harm to
health, safety, natural resources or the environment.
"Environmental Laws" shall mean all applicable federal, state or local
laws, statutes, rules, regulations or ordinances, codes, common law, consent
agreements, orders, decrees, judgments or injunctions issued, promulgated,
approved or entered thereunder relating to public health, safety or the
pollution or protection of the environment, including, without limitation, those
relating to releases, discharges, emissions, spills, leaching, or disposals to
air, water, land or ground water, to the withdrawal or use of ground water, to
the use, handling or disposal of polychlorinated biphenyls, asbestos or urea
formaldehyde, to the treatment, storage, disposal or management of hazardous
substances (including, without limitation, petroleum, crude oil or any fraction
thereof, or other hydrocarbons), pollutants or contaminants, to exposure to
toxic, hazardous or other controlled, prohibited, or regulated substances,
including, without limitation,
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any such provisions under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C. ss. 9601 et seq.), the
Hazardous Materials Transportation Act (49 U.S.C. ss.1801 et seq.), the Resource
Conservation and Recovery Act of 1976, as amended (42 U.S.C. ss. 6901 et seq.),
the Federal Water Pollution Control Act (33 U.S.C. ss. 1251 et seq.), the Clean
Air Act (42 U.S.C. ss. 7401 et seq.), the Toxic Substances Control Act (15
U.S.C. ss. 2601 et seq.), the Federal Insecticide, Fungicide and Rodenticide Act
(7 U.S.C. ss. 136 et seq.), the Occupational Safety and Health Act (29 U.S.C.
ss. 651 et seq.), the Oil Pollution Act (33 U.S.C. ss. 2701 et seq.) and the
Emergency Planning and Community Right-to-Know Act (42 U.S.C. ss. 11001 et
seq.), each as amended or supplemented, any analogous present or future state or
local statutes or laws, and any regulations promulgated pursuant to any of the
foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as in effect from time to time.
"ERISA Affiliate" shall mean any Person, including a Subsidiary or an
Affiliate of the Borrower, that is a member of any group of organizations of
which the Borrower is a member and which is covered by a Plan.
"Event of Default" shall mean any of the events specified in Section
8.1 hereof, provided that any requirement for notice or lapse of time, or both,
has been satisfied.
"FCC" shall mean the Federal Communications Commission and any
successor or substitute governmental commission, agency, department, board or
authority performing functions similar to those performed by the Federal
Communications Commission on the date hereof.
"FCC License" shall mean any license required under the Communications
Act or from the FCC.
"FCC Regulations" shall mean all rules, regulations, written policies,
orders and decisions of the FCC under the Communications Act.
"Federal Funds Rate" shall mean, as of any date, the weighted average
of the rates on overnight federal funds transactions with the members of the
Federal Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three (3) federal
funds brokers of recognized standing selected by the Administrative Agent.
"Fed Regulations" shall have the meaning ascribed thereto in Section
4.1(n) hereof.
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"Fixed Charge Coverage Ratio" shall mean, as of any date, the ratio of
(a) Operating Cash Flow for the four (4) quarter period then ended or most
recently ended to (b) Fixed Charges.
"Fixed Charges" shall mean, as of any date, the sum of (i) all Interest
Expense, (ii) all required principal payments of Revolving Loans made pursuant
to scheduled Revolving Commitment reductions, (iii) all required principal
payments due on Term Loan A, (iv) all required principal payments due on Term
Loan B, (v) all principal payments required to be made by the Borrower and its
Subsidiaries on Total Debt (other than the Loans), (vi) Capital Expenditures
made by the Borrower and its Subsidiaries, (vii) any federal, state or local
income taxes paid by the Borrower or any of its Subsidiaries, plus (viii) any
purchases of common stock of the Borrower by the Borrower or any of its
Subsidiaries, in each case, for or during the four (4) quarter period then ended
or most recently ended. For purposes of calculating the Fixed Charge Coverage
Ratio as of any date from January 1, 2000 through December 31, 2002, Fixed
Charges for or during the four (4) quarter period then ended or most recently
ended, as the case may be, shall exclude actual HDTV Capital Expenditures for
such four (4) quarter period (A) in an amount not to exceed $8,000,000.00 and
(B) to the extent made on or after January 1, 2000 and on or prior to December
31, 2002.
"GAAP" shall mean, as in effect from time to time, generally accepted
accounting principles in the United States, consistently applied.
"Guaranty" or "Guaranteed," as applied to an obligation, shall mean and
include (a) a guaranty, direct or indirect, in any manner, of all or any part of
such obligation, and (b) any agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limitation, any reimbursement
obligations as to amounts drawn down by beneficiaries of outstanding letters of
credit or capital call requirements.
"Hazardous Materials" shall mean (i) any chemical, material or
substance at any time defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely hazardous
waste," "acutely hazardous waste," "radioactive waste," "biohazardous waste,"
"pollutant," "toxic pollutant," "contaminant," "restricted hazardous waste,"
"infectious waste," "toxic substances," or any other term or expression intended
to define, list or classify substances by reason of properties harmful to
health, safety or the indoor or outdoor environment (including, without
limitation, harmful properties such as ignitability, corrosivity, reactivity,
carcinogenicity, toxicity, reproductive toxicity, "TCLP toxicity" or "EP
toxicity" or words of similar import under any applicable Environmental Laws);
(ii) any oil, petroleum, petroleum fraction or petroleum derived substance;
(iii) any drilling fluids, produced waters and other wastes associated with the
exploration, development or production of crude oil, natural gas or geothermal
resources; (iv) any flammable substances or explosives; (v) any radioactive
materials; (vi) any asbestos-containing materials; (vii) urea formaldehyde foam
insulation; (viii) electrical equipment which contains any oil or dielectric
fluid containing polychlorinated biphenyls; (ix) pesticides; and (x) any other
chemical, material
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or substance, exposure to which is prohibited, limited or regulated by any
governmental authority or which may or could pose a hazard to the health and
safety of the owners, occupants or any Persons in the vicinity of any Real
Property or to the indoor or outdoor environment.
"Hazardous Materials Activity" shall mean any past, current, proposed
or threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.
"HDTV Capital Expenditures" shall mean Capital Expenditures made in
connection with mandated conversion to digital television broadcasting,
including, without limitation, the purchase of transmission, distribution,
studio and antenna equipment and transmission site modifications, including
construction and modification of towers.
"Indebtedness" shall mean, with respect to any Person as of any date,
all liabilities, obligations and reserves, contingent or otherwise, which, in
accordance with GAAP, would be reflected as a liability on a balance sheet
(excluding trade accounts payable and accrued expenses arising in the ordinary
course of business), including, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind,
(b) all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, (c) all obligations of such Person upon which interest
charges are customarily paid, (d) all obligations of such Person under
conditional sale or other title retention agreements relating to assets purchase
by such Person, (e) all obligations of such Person issued or assumed as the
deferred purchase price of property or services, (f) all obligations of others
secured by (or for which the holder of such obligations has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the obligations secured thereby have
been assumed by such Person, (g) all obligations or liabilities Guaranteed by
such Person, (h) all Capitalized Lease Obligations of such Person, (i) all
Interest Rate Hedge Agreements, and (j) all obligations of such Person as an
account party to reimburse any Person in respect of letters of credit
(including, without limitation, the Letters of Credit) or bankers' acceptances.
The Indebtedness of any Person shall include any recourse Indebtedness of any
partnership in which such Person is a general partner.
"Indemnitee" shall have the meaning ascribed thereto in Section 5.11
hereof.
"Interest Coverage Ratio" shall mean as of any date, the ratio of (a)
Operating Cash Flow for the four (4) fiscal quarter period then ended or most
recently ended to (b) the sum of (i) Interest Expense and (ii) dividends made by
the Borrower and its Subsidiaries in respect of the Ownership Interests of the
Borrower or such Subsidiary, in each case, for the same four (4) quarter period
(excluding dividends made in such Ownership Interests).
"Interest Expense" shall mean, for any period, the gross interest
expense accrued by the Borrower and its Subsidiaries in respect of their
Indebtedness for such period, determined on a
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consolidated basis, all fees payable under Section 2.4 or any fee letter of the
Borrower executed in connection with this Agreement, and any other fees,
charges, commissions and discounts in respect of Indebtedness, including,
without limitation, any fees payable in connection with the Letters of Credit,
but excluding deferred finance charges all calculated in accordance with GAAP.
For purposes of the foregoing, gross interest expense shall be determined after
giving effect to any net payments made or received by the Borrower with respect
to Interest Rate Hedge Agreements.
"Interest Period" shall mean (a) in connection with any Base Rate
Advance, the period beginning on the date such Advance is made as or Converted
to a Base Rate Advance and ending on the last day of the fiscal quarter in which
such Advance is made or as Converted to a Base Rate Advance, provided, however,
that if a Base Rate Advance is made or Converted on the last day of any fiscal
quarter, it shall have an Interest Period ending on, and its Payment Date shall
be, the last day of the following fiscal quarter, and (b) in connection with any
LIBOR Advance, the term of such Advance selected by the Borrower or otherwise
determined in accordance with this Agreement. Notwithstanding the foregoing,
however, (i) any applicable Interest Period which would otherwise end on a day
which is not a Business Day shall be extended to the next succeeding Business
Day unless, with respect to LIBOR Advances only, such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next
preceding Business Day, (ii) any applicable Interest Period, with respect to
LIBOR Advances only, which begins on a day for which there is no numerically
corresponding day in the calendar month during which such Interest Period is to
end shall (subject to clause (i) above) end on the last day of such calendar
month, and (iii) the Borrower shall not select an Interest Period which extends
beyond the Maturity Date, or such earlier date as would interfere with the
Borrower's repayment obligations under Section 2.7 hereof. Interest shall be due
and payable with respect to any Advance as provided in Section 2.3 hereof.
"Interest Rate Basis" shall mean the Base Rate Basis or the LIBOR
Basis, as appropriate.
"Interest Rate Hedge Agreements" shall mean the obligations of any
Person pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"Investment" shall mean, with respect to the Borrower or any of its
Subsidiaries, (a) any loan, advance or extension of credit (other than to
customers in the ordinary course of business) by such Person to, or any Guaranty
or other contingent liability with respect to the capital stock, indebtedness or
other obligations of, or any contributions to the capital of, any other Person,
or any ownership, purchase or other acquisition by such Person of any interest
in any capital stock, limited partnership interests, general partnership
interest, or other securities of such other Person, other than an Acquisition,
and (b) all expenditures by the Borrower or any of its Subsidiaries relating to
the foregoing.
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"Issuing Bank" shall mean Bank of America, N.A., in its capacity as the
issuer of the Letters of Credit, or any successor issuer of the Letters of
Credit.
"known to the Borrower" or "to the knowledge of the Borrower" shall
mean known by or reasonably should have been known by the executive officers of
the Borrower (including, without limitation, the chief executive officer,
president, the chief operating officer, if any, the chief financial officer, the
controller, the chief accounting officer or the general counsel of the
Borrower).
"Lead Arranger and Book Manager" shall mean Banc of America Securities,
LLC.
"Lenders" shall mean the Persons whose names appear as "Lenders" on the
signature pages hereof and any other Person which becomes a "Lender" hereunder
after the Agreement Date; and "Lender" shall mean any one of the foregoing
Lenders.
"Letter of Credit Obligations" shall mean, as of any date, the sum of
(a) an amount equal to the aggregate undrawn and unexpired amount (including the
amount to which any such Letter of Credit can be reinstated pursuant to the
terms hereof) of the then outstanding Letters of Credit and (b) an amount equal
to the aggregate drawn, but unreimbursed drawings on any Letters of Credit.
"Letter of Credit Reserve Account" shall mean any account maintained by
the Administrative Agent for the benefit of the Issuing Bank pursuant to the
terms hereof.
"Letters of Credit" shall mean either Standby Letters of Credit or
Commercial Letters of Credit issued by the Issuing Bank on behalf of the
Borrower or its Subsidiaries from time to time in accordance with the terms
hereof.
"Leverage Ratio" shall mean, as of any date, the ratio of (a) Total
Debt as of such date to (b) Operating Cash Flow for the four (4) quarter period
then ended or most recently ended.
"LIBOR" shall mean, for any Interest Period, the average of the
interest rates per annum at which deposits in United States Dollars for such
Interest Period are offered to the Administrative Agent in the Eurodollar market
at approximately 11:00 a.m. (London, England time) two (2) Business Days before
the first day of such Interest Period, in an amount approximately equal to the
principal amount of, and for a length of time approximately equal to the
Interest Period for, the LIBOR Advance sought by the Borrower.
"LIBOR Advance" shall mean an Advance which the Borrower requests to be
made as, Continued as or Converted to a LIBOR Advance in accordance with the
provisions of Section 2.2 hereof, and which shall be in a principal amount of at
least $1,000,000.00 and in an integral multiple of $500,000.00.
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19
"LIBOR Basis" shall mean a simple per annum interest rate (rounded
upward, if necessary, to the nearest one-hundredth (1/100th) of one percent
(1.0%)) equal to the sum of (a) the quotient of (i) the LIBOR divided by (ii)
one (1) minus the Eurodollar Reserve Percentage, if any, stated as a decimal,
plus (b) the Applicable Margin. The LIBOR Basis shall apply to Interest Periods
of one (1), two (2), three (3), or six (6), nine (9) and twelve (12) months,
and, once determined, shall remain unchanged during the applicable Interest
Period, except for changes to reflect adjustments in the Eurodollar Reserve
Percentage and the Applicable Margin as adjusted pursuant to Section 2.3(f)
hereof. The LIBOR Basis for any LIBOR Advance shall be adjusted as of the
effective date of any change in the Eurodollar Reserve Percentage and the
Applicable Margin. The Borrower may not elect an Interest Period in excess of
six (6) months unless the Administrative Agent has notified the Borrower that
each of the Lenders has funds available to it for such Lender's portion of the
proposed Advance which are not required for other purposes, and that such funds
are available to each Lender at a rate (exclusive of reserves and other
adjustments) at or below the LIBOR Basis for such proposed Advance and Interest
Period.
"LIBOR Reserve Percentage" means for any day that percentage (expressed
as a decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation, all basic,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements) for
a member bank of the Federal Reserve System in respect of Eurocurrency
Liabilities (as that term is defined in Regulation D of the Board of Governors
of the Federal Reserve System, as in effect from time to time). The LIBOR Rate
shall be adjusted automatically on and as of the effective date of any change in
the LIBOR Reserve Percentage.
"License" shall mean any license, authorization, permit, consent,
franchise, ordinance, registration, certificate, agreement or other right filed
with, granted by, or entered into by a federal, state or local governmental
authority which permits or authorizes the acquisition, construction or operation
of a television station or satellite broadcasting or portable phone paging
operation, or any part of a television station or satellite broadcasting or
portable phone paging operation, or which is required for the acquisition,
ownership or operation of any Station, any Newspaper, the Porta-Phone Paging
Business or the Satellite Broadcasting Business, including, without limitation,
the FCC Licenses.
"License Sub" shall mean each Subsidiary of the Borrower which has no
assets other than FCC Licenses.
"Lien" shall mean, with respect to any property, any mortgage, lien,
pledge, negative pledge or other agreement not to pledge, assignment, charge,
security interest, title retention agreement, levy, execution, seizure,
attachment, garnishment or other encumbrance of any kind in respect of such
property, whether created by statute, contract, the common law or otherwise, and
whether or not xxxxxx, vested or perfected.
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"Loan Documents" shall mean this Agreement, the Notes, the Security
Documents, all fee letters, all Requests for Advance, all Interest Rate Hedge
Agreements between the Borrower, on the one hand, and the Administrative Agent,
the Lenders or their Affiliates, or any of them, on the other hand, all
compliance certificates issued by the Borrower or any of its Subsidiaries and
all other documents, agreements, supplements, confirmations, instruments or
certificates executed or delivered in connection with or contemplated by this
Agreement or any of the foregoing.
"Loans" shall mean, collectively, the Revolving Loans, the Term Loan A
and the Term Loan B.
"margin stock" shall have the meaning ascribed thereto in Section
4.1(n) hereof.
"Materially Adverse Effect" shall mean a material adverse effect upon
or change in (a) the properties, assets, business, operations, financial
condition or prospects of the Borrower or any of its Subsidiaries or on the
ability of the Borrower or any such Subsidiary to conduct its business, (b) the
ability of the Borrower, any of its Subsidiaries or any other party to a Loan
Document (other than the Administrative Agent or any Lender) to perform its
obligations hereunder or under any other Loan Document to which it is a party,
(c) the validity or enforceability of this Agreement, the Notes or any other
Loan Document, or (d) the rights or remedies of the Administrative Agent or the
Lenders under this Agreement, the Notes or any other Loan Document or at law or
in equity.
"Maturity Date" shall mean the Revolving Loan Maturity Date, the Term
Loan A Maturity Date or the Term Loan B Maturity Date, as applicable.
"Mortgage" shall mean (i) a security instrument (whether designated as
a deed of trust or a mortgage or by any similar title) executed and delivered by
the Borrower or any of its Subsidiaries, in each case in form and substance
satisfactory to the Administrative Agent and its counsel based on local laws or
customary local mortgage or deed of trust practices, or (ii) at the
Administrative Agent's option, an amendment to an existing Mortgage, in form and
substance reasonably satisfactory to the Administrative Agent, adding additional
property to the Real Property encumbered by such existing Mortgage.
"Multiemployer Plan" shall mean a multiemployer pension plan as defined
in Section 3(37) of ERISA to which Parent, the Borrower, any of its Subsidiaries
or any ERISA Affiliate is or has been required to contribute.
"Necessary Authorizations" shall mean all approvals and licenses from,
and all filings and registrations with, any governmental or other regulatory
authority, including, without limitation, all approvals, Licenses, filings and
registrations under the Communications Act.
"Net Earnings" shall mean, as of any date with respect to the Borrower,
the consolidated net income (or deficit) of the Borrower and its Subsidiaries
for the period involved, after taxes
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accrued and after all proper charges and reserves (excluding, however,
non-recurring special charges and credits), all as determined in accordance with
GAAP.
"Net Proceeds" shall mean, with respect to any Asset Sale by, or any
insurance or condemnation proceeding in respect of any assets of, the Borrower
or any of its Subsidiaries, as applicable, the aggregate amount of cash received
for such assets (including, without limitation, any payments received for
non-competition covenants, any time brokerage, consulting or management fees for
services rendered on or prior to the consummation of such sale (other than such
fees received in the ordinary course of business for brokerage, management or
consulting services rendered after the consummation of such sale in amounts
usual and customary for the services rendered), and any portion of the amount
received evidenced by a promissory note or other evidence of Indebtedness issued
by the purchaser), net of (a) amounts reserved, if any, for taxes payable with
respect to any such sale (after application (assuming application first to such
reserves) of any available losses, credits or other offsets), (b) reasonable and
customary transaction costs properly attributable to such transaction and
payable by the Borrower or any of its Subsidiaries (other than to an Affiliate)
in connection with such Asset Sale, including, without limitation, commissions,
and (c) until actually received by the Borrower or any of its Subsidiaries, any
portion of the amount received held in escrow, evidenced by a promissory note or
other evidence of Indebtedness, or in respect of a purchase or non-compete,
consulting or management agreement or covenant or otherwise for which
compensation is paid over time. Upon receipt by the Borrower or any of its
Subsidiaries of (i) amounts referred to in item (c) of the preceding sentence,
or (ii) if there shall occur any reduction in the tax reserves referred to in
item (a) of the preceding sentence resulting in a payment to the Borrower or its
Subsidiaries, such amounts shall then be deemed to be "Net Proceeds."
"Newspapers" shall mean, as of any date, the newspapers owned or
operated by the Borrower or any of its Subsidiaries as of such date. As of the
Agreement Date, the Newspapers are set forth on Schedule 3 attached hereto.
"Non-US Lender" shall have the meaning ascribed thereto in Section
2.8(a) hereof.
"Notes" shall mean, collectively, the Revolving Loan Notes, the Term
Loan A Notes and the Term Loan B Notes.
"Obligations" shall mean all payment and performance obligations of
every kind, nature and description of the Borrower, its Subsidiaries, and any
other obligors to the Lenders, or the Administrative Agent, or any of them,
under this Agreement and the other Loan Documents (including any interest, fees
and other charges on the Loans or otherwise under the Loan Documents that would
accrue but for the filing of a bankruptcy action and including Obligations to
the Administrative Agent, any of the Lenders or any of their Affiliates under
the Interest Rate Hedge Agreements) as they may be amended from time to time, or
as a result of making the Loans, whether such obligations are direct or
indirect, absolute or contingent, due or not due, contractual or tortious,
liquidated or unliquidated, arising by operation of law or otherwise, now
existing or hereafter arising.
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"Operating Agreement" shall mean any programming agreement, time
brokerage, local marketing or similar agreement, network affiliation agreement,
franchise agreement, lease or other agreement of the Borrower or any of its
Subsidiaries relating to the operation of a Station, a Newspaper, the
Porta-Phone Paging Business or the Satellite Broadcasting Business, the
termination or adverse modification of which could reasonably be expected to
have a Material Adverse Effect.
"Operating Cash Flow" shall mean, as of any date for any period, (a)
the Net Earnings for such period (excluding, to the extent included in Net
Earnings, (i) the effect of any exchange of advertising time for non-cash
consideration, such as merchandise or services, (ii) any other non-cash income
or expense (including the cumulative effect of a change in accounting principles
and extraordinary items) and (iii) any gains or losses from sales, exchanges and
other dispositions of property not in the ordinary course of business), minus
(b) any interest income, minus (c) any cash payments made in respect of
Programming Obligations, plus (d) the sum of (i) depreciation on or obsolescence
of fixed or capital assets and amortization of intangibles and leasehold
improvements (including, without limitation, amortization in respect of
Programming Obligations) for such period, plus (ii) Interest Expense in such
period, plus (iii) federal, state and local income taxes in such period to the
extent deducted in calculating Net Earnings in such period (other than any such
taxes resulting from any gains from sales and exchanges and other distributions
not in the ordinary course of business), all on a consolidated basis and
computed on the accrual method. For purposes of calculating Operating Cash Flow
in any period , any Acquisition or Asset Sale which occurs during such period
shall be deemed to have occurred on the first day of such period.
"Ownership Interests" shall mean, as applied to any Person, any
ownership interests or capital stock of such Person, regardless of class or
designation, and all warrants, options, purchase rights, conversion or exchange
rights, voting rights, calls or claims of any character with respect thereto, or
any partnership interests, membership interest or other instruments or
securities evidencing ownership of such Person, as applicable.
"Ownership Reports" shall mean, with respect to any Station, the
reports and certifications filed with the FCC pursuant to 47 C.F.R. ss. 73.3615,
or any comparable reports filed pursuant to any successor regulation thereto.
"Payment Date" shall mean the last day of any Interest Period.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Permitted Liens" shall mean, as applied to any Person:
(a) any Lien in favor of the Administrative Agent or any
Lender given to secure the Obligations;
(b) (i) Liens on real estate or other property for taxes,
assessments, governmental charges or levies not yet delinquent and (ii) Liens
for taxes, assessments,
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judgments, governmental charges or levies or claims the non-payment of which is
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves have been set aside on such Person's books in accordance
with GAAP, but only so long as no forfeiture, foreclosure, distraint, sale or
similar proceedings have been commenced with respect thereto;
(c) statutory liens of carriers, warehousemen, mechanics,
vendors, laborers and materialmen incurred in good faith in the ordinary course
of business for sums not yet due or being diligently contested in good faith, if
adequate reserves have been set aside on such Person's books in accordance with
GAAP, or appropriate provisions shall have been made therefor, and no
forfeiture, foreclosure, distraint, sale or similar proceedings have been
commenced with respect thereto;
(d) Liens incurred in the ordinary course of business in
connection with worker's compensation and unemployment insurance, social
security obligations, assessments or government charges which are not overdue
for more than sixty (60) days;
(e) restrictions on the transfer of assets of the Borrower or
its Subsidiaries imposed by the Communications Act and any regulations
thereunder;
(f) easements, rights-of-way, zoning restrictions, leases,
licenses, reservations or restrictions on use and other similar encumbrances on
the use of real property which do not materially interfere with the ordinary
conduct of the business of such Person or the use or value of such property;
(g) (i) Liens reflected by Uniform Commercial Code financing
statements filed in respect of Capitalized Lease Obligations permitted pursuant
to Section 7.1(i) hereof and true leases of the Borrower or any of its
Subsidiaries and (ii) Liens evidencing Indebtedness permitted by Section 7.1(c)
hereof;
(h) Liens to secure performance of statutory obligations,
surety or appeal bonds, performance bonds, bids, tenders or escrow deposits in
connection with Acquisitions and, in each case, in the ordinary course of
business;
(i) judgment Liens which do not result in an Event of Default
under Section 8.1(h) hereof;
(j) Liens existing on the Agreement Date as set forth in
Schedule 2 hereof; and
(k) Liens approved by the Administrative Agent and set forth
in any title policy insuring the interest of the Administrative Agent in any
Collateral, or set forth in title report, title examination or similar document
with respect to any of the Collateral.
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"Person" shall mean an individual, corporation, limited liability
company, association, partnership, joint venture, trust or estate, an
unincorporated organization, a government or any agency or political subdivision
thereof, or any other entity.
"Plan" shall mean an employee benefit plan within the meaning of
Section 3(3) of ERISA or any other employee benefit plan maintained for
employees of any Person or any affiliate of such Person.
"Porta-Phone Paging Business" shall mean, as of any date, the portable
telephone paging business owned or operated by the Borrower or any of its
Subsidiaries as of such date.
"Prior Loan Agreement" shall mean that certain Amended and Restated
Credit Agreement dated as of July 31, 1998 by and among Xxxx Communications
Systems, Inc., as Borrower, NationsBank, N.A., as Syndication Agent and
Administrative Agent, Key Corporate Capital Inc., as Documentation Agent, and
the Lenders party thereto as amended by that certain First Amendment thereto
dated as of November 13, 1998 and that certain Second Amendment thereto dated as
of March 3, 1999.
"Pro Forma Debt Service" shall mean, as of any date, the sum of, (a)
all required principal payments of Revolving Loans to be made pursuant to
scheduled Revolving Commitment reductions pursuant to Section 2.5 hereof during
the four (4) quarter period following such date, plus (b) all principal payments
required to be made on Term Loan A or Term Loan B pursuant to Section 2.7 during
such subsequent four (4) quarter period, plus (c) all principal payments
required to be made by the Borrower and its Subsidiaries on Total Debt (other
than the Loans) during such subsequent four (4) quarter period, plus (d) all
Interest Expense during such subsequent four (4) quarter period. In calculating
Pro Forma Debt Service, (i) the interest rate in effect in such subsequent
period on any Indebtedness which does not bear interest at a rate which is fixed
for the entire subsequent period shall be deemed to be the interest rate in
effect on such Indebtedness as of the date of determination, and (ii) for the
purpose of determining the amount of principal payments required on the Term
Loan A or Term Loan B pursuant to Section 2.7 hereof in future periods, it shall
be assumed that the principal amount of such Loans outstanding as of the date of
determination will be outstanding for the subsequent four (4) quarter period,
subject to any required principal payments.
"Pro Forma Debt Service Coverage Ratio" shall mean, as of any date, the
ratio of (a) Operating Cash Flow for the four (4) fiscal quarter period then
ended or most recently ended to (b) Pro Forma Debt Service as of the end of the
same four (4) quarter period.
"Programming Obligations" means all direct or indirect monetary
liabilities, contingent or otherwise, with respect to contracts for television
broadcast rights relating to television series or other programs produced or
distributed for television release.
"Program Payments" shall mean, as of any date for any period, the sum
of all cash payments actually made by or on behalf of the Borrower and its
Subsidiaries during the period involved with respect to or on account of
Programming Obligations.
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"Real Property" shall mean any and all real property (including all
buildings, fixtures or other improvements located thereon) now, hereafter or
heretofore owned, leased, operated or used by the Borrower or any of its
Subsidiaries or any of their respective predecessors or Affiliates. The Real
Property as of the Agreement Date is set forth on Schedule 11 attached hereto.
"Register" shall have the meaning ascribed thereto in Section 11.5(g)
hereof.
"Registered Noteholder" shall mean each Non-U.S. Lender that holds a
Registered Note pursuant to Section 2.8(a) hereof or registers its Loans
pursuant to Section 11.5(g) hereof.
"Registered Notes" shall mean those certain Notes that have been issued
in registered form in accordance with Sections 2.8(a) and 11.5(g) hereof and
each of which bears the following legend: "This is a Registered Note, and this
Registered Note and the Loans evidenced hereby may be assigned or otherwise
transferred in whole or in part only by registration of such assignment or
transfer on the Register and in compliance with all other requirements provided
for in the Loan Agreement."
"Release" shall mean any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of Hazardous Materials into the indoor or outdoor
environment (including, without limitation, the abandonment or disposal of any
barrels, containers or other closed receptacles containing any Hazardous
Materials), including the movement of any Hazardous Materials through the air,
soil, surface water or groundwater.
"Reportable Event" shall mean, with respect to any Employee Pension
Plan, an event described in Section 4043(b) of ERISA.
"Request for Advance" shall mean a certificate designated as a "Request
for Advance," signed by an Authorized Signatory of the Borrower requesting an
Advance, Continuation or Conversion hereunder, which shall be in substantially
the form of Exhibit E attached hereto, and shall, among other things, (i)
specify the date of such Advance, Continuation or Conversion, which shall be a
Business Day, the amount and type of Advance (LIBOR or Base Rate), and, with
respect to LIBOR Advances, the Interest Period selected by the Borrower, (ii)
state that there shall not exist, on the date of the requested Advance and after
giving effect thereto, a Default or Event of Default, and (iii) the Applicable
Margin then in effect.
"Request for Issuance of Letter of Credit" shall mean any certificate
signed by an Authorized Signatory of the Borrower requesting that the Issuing
Bank issue a Letter of Credit hereunder, which certificate shall be in
substantially the form of Exhibit F attached hereto and shall, among other
things, specify (a) that the requested Letter of Credit is either a Commercial
Letter of Credit or a Standby Letter of Credit, (b) the stated amount of the
Letter of Credit, (c) the effective date for the issuance of the Letter of
Credit (which shall be a Business Day), (d) the date on which the Letter of
Credit is to expire (which shall be a Business Day), (e) the Person for
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whose benefit such Letter of Credit is to be issued, and (f) other relevant
terms of such Letter of Credit.
"Required Lenders" shall mean, at any time, the Lenders holding at
least sixty-six and two-thirds percent (66-2/3%) of the then aggregate unpaid
principal amount of the Loans, or, if no Loan is then outstanding, the Lenders
having at least sixty-six and two-thirds percent (66-2/3%) of the Commitments.
"Restricted Payment" shall mean (a) any direct or indirect
distribution, dividend or other payment to any Person (other than to the
Borrower or any of its Subsidiaries) on account of any Ownership Interests of
the Borrower or any of its Subsidiaries (other than dividends payable solely in
Ownership Interests of such Person and splits thereof), (b) any payment of
principal of, or interest on, or payment into a sinking fund for the retirement
of, or any defeasance of Subordinated Debt, or (c) any management, consulting or
similar fees, or any interest thereon, payable by the Borrower or any of its
Subsidiaries to any of their respective Affiliates (other than such fees and
interest payable to (1) the Borrower or any of its Subsidiaries or (2) Bull Run
Corporation).
"Restricted Purchase" shall mean any payment (including, without
limitation, any sinking fund payment, prepayment or installment payment) on
account of the purchase, redemption, defeasance or other acquisition or
retirement of any Ownership Interests of or Subordinated Debt of the Borrower or
any of its Subsidiaries, including, without limitation, any warrants or other
rights or options to acquire shares of Ownership Interests of the Borrower or of
any of its Subsidiaries or any loan, advance, release or forgiveness of
Indebtedness by the Borrower or any of its Subsidiaries to any partner,
shareholder or Affiliate (other than to the Borrower or any of its Subsidiaries)
of any such Person.
"Revolving Loan Commitment" shall mean the several obligations of the
Lenders to fund their respective portion of the Revolving Loans to the Borrower
in accordance with their respective Commitment Ratios in the aggregate sum as of
the Agreement Date of up to $100,000,000.00, pursuant to the terms hereof, as
such obligations may be reduced from time to time pursuant to the terms hereof.
"Revolving Loans" shall mean, collectively, those amounts advanced by
the Lenders to the Borrower under the Revolving Loan Commitment not to exceed
the Revolving Loan Commitment at any one time and evidenced by the Revolving
Loan Notes.
"Revolving Loan Maturity Date" shall mean June 30, 2005, or such
earlier date as payment of the Revolving Loans shall be due (whether by
acceleration, reduction of the Revolving Loan Commitment to zero or otherwise).
"Revolving Loan Notes" shall mean, collectively, those certain amended
and restated promissory notes in the aggregate original principal amount of
$100,000,000.00, and issued to each of the Lenders by the Borrower with respect
to the Revolving Loan Commitment, each one substantially in the form of Exhibit
G-1 attached hereto, any other promissory note issued by the
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Borrower to evidence the Revolving Loans pursuant to this Agreement, and any
extensions, renewals or amendments to, or replacements of, the foregoing.
"Revolving Loan Repayment Proceeds" shall mean the product of (a) the
Revolving Loan Repayment Ratio times (b) the applicable Net Proceeds amount.
"Revolving Loan Repayment Ratio" shall mean, as of any date, the ratio
of (a) (i) the sum of the Revolving Loans and Letter of Credit Obligations
outstanding on such date to (ii) the sum of the Loans and Letter of Credit
Obligations outstanding hereunder on such date or, (b) if no Loan or Letter of
Credit Obligation is then outstanding, (i) the Revolving Loan Commitment on such
date to (ii) the sum of the Commitments hereunder on such date.
"Satellite Broadcasting Business" shall mean, as of any date, the
satellite broadcasting business owned or operated by the Borrower or any of its
Subsidiaries on such date.
"Security Documents" shall mean, collectively, the Borrower Pledge
Agreement, the Borrower Security Agreement, any Subsidiary Guaranty, any
Subsidiary Pledge Agreement, any Subsidiary Security Agreement, any Mortgage,
any Assignment of General Partner Interests, any Assignment of Limited Partner
Interests, any other agreement or instrument providing Collateral for the
Obligations whether now or hereafter in existence, and any filings, instruments,
agreements and documents related thereto or to this Agreement, and providing the
Administrative Agent, for the benefit of the Lenders, with Collateral for the
Obligations.
"Security Interest" shall mean, collectively, all Liens in favor of the
Administrative Agent, for the benefit of the Lenders, created hereunder or under
any of the Security Documents to secure the Obligations.
"Senior Debt" shall mean, as of any date, (a) Total Debt on such date
minus (b) Subordinated Debt on such date.
"Senior Leverage Ratio" shall mean, as of any date, the ratio of (a)
Senior Debt as of such date to (b) Operating Cash Flow for the four (4) quarter
period then ended or most recently ended.
"Standby Letter of Credit shall mean a letter of credit issued to
support obligations of the Borrower or its Subsidiaries incurred in the ordinary
course of business, and which is not a Commercial Letter of Credit.
"Station" shall mean, collectively (i) each of the television stations
owned and operated by the Borrower and its Subsidiaries on the Agreement Date as
set forth in Schedule 3 attached hereto and (ii) any television station acquired
after the Agreement Date by the Borrower or any of its Subsidiaries in
accordance herewith.
"Subordinated Debt" shall mean, as of any date, the sum of (a) all
Indebtedness of the Borrower and its Subsidiaries under the Subordinated Note
Indenture or any agreements, notes,
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instruments or documents executed or delivered in connection therewith and (b)
all other Indebtedness of the Borrower the repayment of which is subordinated in
right of payment to the Obligations pursuant to a subordination agreement in
form and substance satisfactory to the Lenders, in each case, as of such date.
"Subordinated Note Indenture" shall mean that certain Indenture dated
as of September 25, 1996 by and among the Borrower, all of its Subsidiaries and
Bankers Trust Company in respect of the Borrower's 10-5/8% Senior Subordinated
Notes due 2006, as the same may be amended from time to time to the extent
permitted hereunder.
"Subsidiary" shall mean, as applied to any Person, (a) any corporation
of which more than fifty percent (50%) of the outstanding stock (other than
directors' qualifying shares) having ordinary voting power to elect a majority
of its board of directors, regardless of the existence at the time of a right of
the holders of any class or classes of securities of such corporation to
exercise such voting power by reason of the happening of any contingency, or any
partnership or limited liability company of which more than fifty percent (50%)
of the outstanding partnership or ownership interests, is at the time owned
directly or indirectly by such Person, or by one or more Subsidiaries of such
Person, or by such Person and one or more Subsidiaries of such Person, or (b)
any other entity which is directly or indirectly controlled or capable of being
controlled by such Person, or by one or more Subsidiaries of such Person, or by
such Person and one or more Subsidiaries of such Person. "Subsidiaries" as used
herein shall mean the Subsidiaries of the Borrower unless otherwise specified.
The Subsidiaries of the Borrower as of the Agreement Date are set forth on
Schedule 4 hereto, except as otherwise noted thereon.
"Subsidiary Guaranty" shall mean any Subsidiary Guaranty, in favor of
the Administrative Agent and the Lenders, given by each Subsidiary of the
Borrower, or any supplement thereto or confirmation thereof, in form and
substance satisfactory to the Administrative Agent, or any similar agreement
substantially in the form of Exhibit H attached hereto.
"Subsidiary Pledge Agreement" shall mean any Subsidiary Pledge
Agreement made by each Subsidiary of the Borrower having one or more of its own
Subsidiaries, on the one hand, in favor of the Administrative Agent, on the
other hand, or any supplement thereto or confirmation thereof, in form and
substance satisfactory to the Administrative Agent, or any similar agreement
substantially in the form of Exhibit I attached hereto.
"Subsidiary Security Agreement" shall mean any Subsidiary Security
Agreement between any of the Borrower's Subsidiaries, on the one hand, and the
Administrative Agent, on the other hand, or any supplement thereto or
confirmation thereof, in form and substance satisfactory to the Administrative
Agent, or any similar agreement substantially in the form of Exhibit J attached
hereto.
"Syndication Agent" shall mean First Union National Bank.
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"Term Loan A" shall mean, collectively, the amounts advanced by the
Lenders to the Borrower under the Term Loan A Commitment and evidenced by the
Term Loan A Notes.
"Term Loan A Commitment" shall mean the several obligations of the
Lenders to advance to the Borrower, in accordance with their respective
Commitment Ratios, an aggregate sum of up to $100,000,000.00, pursuant to the
terms hereof.
"Term Loan A Maturity Date" shall mean June 30, 2005, or such earlier
date as payment of the Term Loan A shall be due (whether by acceleration or
otherwise).
"Term Loan A Notes" shall mean, collectively, those certain amended and
restated promissory notes in the aggregate original principal amount of
$100,000,000.00, and issued to each of the Lenders by the Borrower with respect
to the Term Loan A Commitment, each one substantially in the form of Exhibit G-2
attached hereto, any other promissory note issued by the Borrower to evidence
the Term Loan A pursuant to this Agreement, and any extensions, renewal, or
amendments to, or replacements of, the foregoing.
"Term Loan A Repayment Proceeds" shall mean the product of (a) the Term
Loan A Repayment Ratio times (b) the applicable Net Proceeds amount.
"Term Loan A Repayment Ratio" shall mean, as of any date, the ratio of
(a) the Term Loan A outstanding on such date to (b) the sum of the Loans and
Letter of Credit Obligations outstanding hereunder on such date.
"Term Loan B" shall mean, collectively, the amounts advanced by the
Lenders to the Borrower under the Term Loan B Commitment and evidenced by the
Term Loan B Notes.
"Term Loan B Commitment" shall mean the several obligations of the
Lenders to advance to the Borrower on the Agreement Date, in accordance with
their respective Commitment Ratios, an aggregate sum of up to $100,000,000.00,
pursuant to the terms hereof.
"Term Loan B Maturity Date" shall mean December 31, 2005, or such
earlier date as payment of the Term Loan B shall be due (whether by acceleration
or otherwise).
"Term Loan B Notes" shall mean, collectively, those certain promissory
notes in the aggregate original principal amount of $100,000,000.00, and issued
to each of the Lenders by the Borrower with respect to the Term Loan B
Commitment, each one substantially in the form of Exhibit G-3 attached hereto,
any other promissory note issued by the Borrower to evidence the Term Loan B
pursuant to this Agreement, and any extensions, renewals or amendments to, or
replacements of, the foregoing.
"Term Loan B Repayment Proceeds" shall mean the product of (a) the Term
Loan B Repayment Ratio times (b) the applicable Net Proceeds amount.
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"Term Loan B Repayment Ratio" shall mean, as of any date, the ratio of
(a) the Term Loan B outstanding on such date to (b) the sum of the Loans and
Letter of Credit Obligations outstanding hereunder on such date.
"Texas Acquisition" shall mean the Acquisition by the Borrower of the
Ownership Interests and assets and properties of the Texas Stations pursuant to
the Texas Acquisition Agreement.
"Texas Acquisition Agreement" shall mean, collectively, (a) that
certain Agreement and Plan of Merger dated as of April 13, 1999 by and among the
Borrower, Xxxx Communications of Texas, Inc. and KWTX Broadcasting Company, (b)
that certain Agreement and Plan of Merger dated as of April 13, 1999 by and
among the Borrower, Xxxx Communications of Texas, Inc. and Brazos Broadcasting
Company, and (c) that certain Asset Purchase Agreement dated as of April 26,
1999 by and among the Borrower, Xxxx Communications of Texas-Sherman, Inc., KXII
License Corp., KXII Broadcasters, Ltd., KXII Television, Ltd., KBI 1, Inc., KBI
2, Inc., KXII Properties, Inc. and the Shareholders of KXII Properties, Inc.
"Texas Stations" shall mean KWTX-TV, Waco Texas, KBTX-TV, Bryan, Texas
and KXII-TV, Sherman, Texas.
"Total Debt" shall mean, as of any date, the sum of, without
duplication, (a) all Indebtedness of the Borrower and its Subsidiaries for
borrowed money, including, without limitation, the Loans, (b) all Capitalized
Lease Obligations of the Borrower and its Subsidiaries, (c) all other
Indebtedness of the Borrower or any of its Subsidiaries represented by notes or
drafts representing extensions of credit on which interest is typically charged,
(d) all obligations of the Borrower or any of its Subsidiaries evidenced by
bonds, debentures, notes or other similar instruments (including, without
limitation, all such obligations to which any property or asset owned by the
Borrower or any of its Subsidiaries is subject, whether or not the obligation
secured thereby shall have been assumed), (e) all obligations of the Borrower or
any of its Subsidiaries under conditional sale or other title retention
agreements relating to purchased assets, (f) all obligations of the Borrower or
any of its Subsidiaries which are incurred, issued or assumed as the deferred
purchase price of property or services and which are payable over a period in
excess of one (1) year (excluding Programming Obligations), (g) all obligations
or liabilities Guaranteed by the Borrower or any of its Subsidiaries, (h) at any
time after the occurrence and during the continuance of an event of default
under any Interest Rate Hedge Agreement, the aggregate amount payable by the
Borrower or such Subsidiary under such agreement, and (i) all obligations of the
Borrower or any of its Subsidiaries as an account party to reimburse any Person
in respect of letters of credit (including, without limitation, all Letters of
Credit) or bankers' acceptances, in each case, as of such date.
"Upstream Dividends" shall have the meaning ascribed thereto in Section
7.18 hereof.
"Year 2000 Compliant" shall have the meaning ascribed thereto in
Section 4.1(z) hereof.
"Year 2000 Problem" shall have the meaning ascribed thereto in Section
4.1(z) hereof.
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Section 1.2 Interpretation. Except where otherwise specifically
restricted, reference to a party to this Agreement or any other Loan Document
includes that party and its successors and assigns. All capitalized terms used
herein which are defined in Article 9 of the Uniform Commercial Code in effect
in the State of Georgia on the date hereof and which are not otherwise defined
herein shall have the same meanings herein as set forth therein. Whenever any
agreement, promissory note or other instrument or document is defined in this
Agreement, such definition shall be deemed to mean and include, from and after
the date of any amendment, restatement, supplement, confirmation or modification
thereof, such agreement, promissory note or other instrument or document as so
amended, restated, supplemented, confirmed or modified. All terms defined in
this Agreement in the singular shall have comparable meanings when used in the
plural and vice versa. The words "hereof," "herein" 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.
Section 1.3 Cross References. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause in
such Article, Section or definition.
Section 1.4 Accounting Provisions. All accounting terms used in this
Agreement which are not expressly defined herein shall have the respective
meanings given to them in accordance with GAAP, all computations shall be made
in accordance with GAAP, and all balance sheets and other financial statements
shall be prepared in accordance with GAAP. All financial or accounting
calculations or determinations required pursuant to this Agreement, unless
otherwise expressly provided, shall be made on a consolidated basis for the
Borrower and its Subsidiaries.
ARTICLE 2
Loans and Letters of Credit
Section 2.1 The Loans.
(a) Revolving Loans. The Lenders who issued a Revolving Loan
Commitment agree, severally, in accordance with their respective Commitment
Ratios and not jointly, upon the terms and subject to the conditions of this
Agreement to lend to the Borrower, prior to the Revolving Loan Maturity Date,
amounts not at any one time outstanding to exceed, in the aggregate, the
Available Revolving Loan Commitment as then in effect. The Borrower hereby
acknowledges that all "Obligations" in respect of "Revolving Loans" outstanding
on the Agreement Date under the "Revolving Commitment" (as such terms are
defined in the Prior Loan Agreement) shall be deemed to have been made to the
Borrower as Advances under the Revolving Loan Commitment hereunder and shall
constitute a portion of the Obligations.
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Subject to the terms and conditions hereof, the Borrower may from time to time
(i) Convert a Base Rate Advance into a LIBOR Advance or a LIBOR Advance into a
Base Rate Advance or (ii) Continue a LIBOR Advance as a LIBOR Advance.
(b) Term Loan A. The Lenders who issued a "Term Commitment"
under, and as defined in, the Prior Loan Agreement have previously lent to the
Borrower the amount in the aggregate of $100,000,000 of which $100,000,000.00 is
outstanding on the Agreement Date. The Borrower hereby acknowledges that all
"Obligations" in respect of the "Term Loan" outstanding under the "Term
Commitment" (as such terms are defined in the Prior Agreement) shall be deemed
to have been made to the Borrower as Advances under the Term Loan A Commitment
hereunder and shall constitute a portion of the Obligations. Subject to the
terms and conditions hereof, the Borrower may from time to time (i) Convert a
Base Rate Advance into a LIBOR Advance or a LIBOR Advance into a Base Rate
Advance or (ii) Continue a LIBOR Advance as a LIBOR Advance; provided, however,
that there shall be no increase in the principal amount of the Term Loan A
outstanding after the Agreement Date.
(c) Term Loan B. The Lenders who issued a Term Loan B
Commitment, agree severally, in accordance with their respective Commitment
Ratios, and not jointly, upon the terms and subject to the conditions of this
Agreement, to lend to the Borrower on the Agreement Date an amount which does
not exceed in the aggregate the Term Loan B Commitment. Subject to the terms and
conditions hereof, the Borrower may from time to time (i) Convert a Base Rate
Advance into a LIBOR Advance or a LIBOR Advance into a Base Rate Advance or (ii)
Continue a LIBOR Advance as a LIBOR Advance; provided, however, that there shall
be no increase in the principal amount of the Term Loan B outstanding after the
Agreement Date.
(d) The Letters of Credit. Subject to the terms and conditions
of this Agreement, the Issuing Bank agrees to issue Letters of Credit for the
account of the Borrower (for itself and on behalf of its Subsidiaries) pursuant
to Section 2.14 hereof in an aggregate amount not to exceed the Available Letter
of Credit Commitment determined immediately prior to giving effect to the
issuance thereof.
Section 2.2 Manner of Borrowing and Disbursement.
(a) Choice of Interest Rate, Etc. Any Advance shall, at the
option of the Borrower, be made as a Base Rate Advance or a LIBOR Advance;
provided, however, that at such time as there shall have occurred and be
continuing a Default hereunder, the Borrower shall not have the right to
receive, Convert an Advance to or Continue an Advance as a LIBOR Advance. Any
notice given to the Administrative Agent in connection with a Request for
Advance hereunder shall be given to the Administrative Agent prior to 11:00 a.m.
(Atlanta, Georgia time) on any Business Day in order for such Business Day to
count toward the minimum number of Business Days required.
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(b) Base Rate Advances.
(i) Advances; Conversion. The Borrower shall give the
Administrative Agent, (A) in the case of a request for a Base Rate
Advance irrevocable telephonic notice on the date of such Advance and
(B) in the case of a request to Convert a LIBOR Advance to a Base Rate
Advance, at least three (3) Business Day's irrevocable prior telephonic
notice, in each case, followed immediately by a Request for Advance;
provided, however, that the Borrower's failure to confirm any
telephonic notice with a Request for Advance shall not invalidate any
notice so given if acted upon by the Administrative Agent. Upon receipt
of such notice from the Borrower, the Administrative Agent shall
promptly notify each Lender by telephone or telecopy of the contents
thereof.
(ii) Repayments and Reborrowings. Subject to Section 2.1
hereof, the Borrower may repay or prepay a Base Rate Advance without
regard to its Payment Date and, (A) upon irrevocable telephonic notice
on the date of such repayment or prepayment, as applicable, followed
immediately by a Request for Advance, reborrow all or a portion of the
principal amount thereof as a Base Rate Advance, (B) upon at least
three (3) Business Days' irrevocable prior telephonic notice followed
immediately by a Request for Advance, reborrow all or a portion of the
principal thereof as one or more LIBOR Advances, or (C) not reborrow
all or any portion of such Base Rate Advance. On the date indicated by
the Borrower, such Base Rate Advance shall be so repaid and, as
applicable reborrowed. The failure to give timely notice hereunder with
respect to the Payment Date of any Base Rate Advance shall be
considered a request for a Base Rate Advance.
(c) LIBOR Advances.
(i) Advances. Upon request, the Administrative Agent,
whose determination in absence of manifest error shall be conclusive,
shall determine the available LIBOR Bases and shall notify the Borrower
of such LIBOR Bases. The Borrower shall give the Administrative Agent
in the case of LIBOR Advances at least three (3) Business Days'
irrevocable prior telephonic notice followed immediately by a Request
for Advance; provided, however, that the Borrower's failure to confirm
any telephonic notice with a Request for Advance shall not invalidate
any notice so given if acted upon by the Administrative Agent. Upon
receipt of such notice from the Borrower, the Administrative Agent
shall promptly notify each Lender by telephone or telecopy of the
contents thereof.
(ii) Repayments; Conversion; Continuation. Subject to
Section 2.1 hereof, at least three (3) Business Days prior to the
Payment Date for each LIBOR Advance, the Borrower shall give the
Administrative Agent telephonic notice followed immediately by a
Request for Advance specifying whether all or a portion of such LIBOR
Advance (A) is to be Continued in whole or in part as one or more LIBOR
Advances, (B) is to be Converted in whole or in part to a Base Rate
Advance, or (C) is to
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be repaid and not Continued or Converted. The failure to give such
notice shall preclude the Borrower from Continuing such Advance as a
LIBOR Advance on its Payment Date and shall be considered a request for
a Conversion to a Base Rate Advance. Upon such Payment Date such LIBOR
Advance will, subject to the provisions hereof, be so repaid, Continued
or Converted, as applicable.
(d) Notification of Lenders. Upon receipt of a Request for
Advance, or a notice from the Borrower with respect to any outstanding Advance
prior to the Payment Date for such Advance, the Administrative Agent shall
promptly, but no later than, (i) with respect to LIBOR Advances, the close of
business on the day of such notice, and (ii) with respect to Base Rate Advances,
12:30 p.m. (Atlanta, Georgia time) notify each Lender by telephone or telecopy
of the contents thereof and the amount of such Lender's portion of the Advance.
With respect to each Request for Advance, each Lender shall, not later than 2:00
p.m. (Atlanta, Georgia time) on the date of borrowing specified in such Request
for Advance, make available to the Administrative Agent at the Administrative
Agent's Office, or at such account as the Administrative Agent shall designate,
the amount of its portion of any Advance which represents an additional
borrowing hereunder in immediately available funds.
(e) Disbursement.
(i) Prior to 3:00 p.m. (Atlanta, Georgia time) on the
date of an Advance hereunder, the Administrative Agent shall, subject
to the satisfaction of the conditions set forth in Article 3 hereof,
disburse the amounts made available to the Administrative Agent by the
Lenders in like funds by (A) transferring the amounts so made available
by wire transfer pursuant to the Borrower's instructions, or (B) in the
absence of such instructions, crediting the amounts so made available
to the account of the Borrower maintained with the Administrative
Agent.
(ii) Unless the Administrative Agent shall have received
notice from a Lender prior to 2:00 p.m. (Atlanta, Georgia time) on the
date of any Advance that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of such Advance, the
Administrative Agent may assume that such Lender has made or will make
such portion available to the Administrative Agent on the date of such
Advance and the Administrative Agent may in its sole discretion and in
reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent the Lender does not
make such ratable portion available to the Administrative Agent, such
Lender agrees to repay to the Administrative Agent on demand such
corresponding amount together with interest thereon, for each day from
the date such amount is made available to the Borrower until the date
such amount is repaid to the Administrative Agent, at the Federal Funds
Rate.
(iii) If such Lender shall repay to the Administrative
Agent such corresponding amount, such amount so repaid shall constitute
such Lender's portion of the applicable Advance for purposes of this
Agreement. If such Lender does not repay such corresponding amount
immediately upon the Administrative Agent's demand
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therefor, the Administrative Agent shall notify the Borrower and the
Borrower shall immediately pay such corresponding amount to the
Administrative Agent, with interest at the Federal Funds Rate. The
failure of any Lender to fund its portion of any Advance shall not
relieve any other Lender of its obligation, if any, hereunder to fund
its respective portion of the Advance on the date of such borrowing,
but no Lender shall be responsible for any such failure of any other
Lender.
(iv) In the event that, at any time when the Borrower is
not in Default and has otherwise satisfied each of the conditions in
Section 3.2 hereof, a Lender for any reason fails or refuses to fund
its portion of an Advance and such failure shall continue for a period
in excess of thirty (30) days, then, until such time as such Lender has
funded its portion of such Advance (which late funding shall not
absolve such Lender from any liability it may have to the Borrower), or
all other Lenders have received payment in full from the Borrower
(whether by repayment or prepayment) or otherwise of the principal and
interest due in respect of such Advance, such non-funding Lender shall
not have the right (A) to vote regarding any issue on which voting is
required or advisable under this Agreement or any other Loan Document,
and such Lender's portion of the Loans shall not be counted as
outstanding for purposes of determining "Required Lenders" hereunder,
and (B) to receive payments of principal, interest or fees from the
Borrower, the Administrative Agent or the other Lenders in respect of
its portion of the Loans.
Section 2.3 Interest.
(a) On Base Rate Advances. Interest on each Base Rate Advance
shall be computed on the basis of a 360-day year for the actual number of days
elapsed and shall be payable at the Base Rate Basis for such Advance, in arrears
on the applicable Payment Date. Interest on Base Rate Advances then outstanding
shall also be due and payable on the Maturity Date.
(b) On LIBOR Advances. Interest on each LIBOR Advance shall be
computed on the basis of a 360-day year for the actual number of days elapsed
and shall be payable at the LIBOR Basis for such Advance, in arrears on the
applicable Payment Date, and, in addition, if the Interest Period for a LIBOR
Advance exceeds three (3) months, interest on such LIBOR Advance shall also be
due and payable in arrears on every three-month anniversary of the beginning of
such Interest Period. Interest on LIBOR Advances then outstanding shall also be
due and payable on the Maturity Date.
(c) Interest if No Notice of Selection of Interest Rate Basis.
If the Borrower fails to give the Administrative Agent timely notice of its
selection of a LIBOR Basis, or if for any reason a determination of a LIBOR
Basis for any Advance is not timely concluded, the Base Rate Basis shall apply
to such Advance.
(d) Interest Upon Default. Immediately upon the occurrence of
an Event of Default hereunder, the outstanding principal balance of the Loans
shall bear interest at the Default Rate. Such interest shall be payable on
demand by the Required Lenders and shall
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accrue until the earlier of (i) waiver or cure of the applicable Event of
Default, (ii) agreement by the Required Lenders (or, if applicable to the
underlying Event of Default, the Lenders) to rescind the charging of interest at
the Default Rate, or (iii) payment in full of the Obligations.
(e) LIBOR Contracts. At no time may the number of
outstanding LIBOR Advances hereunder exceed eight (8) in the aggregate.
(f) Applicable Margin.
(i) Revolving Loans and Term Loan A. The Applicable
Margin shall be determined by the Administrative Agent with respect to
any Advance under the Revolving Loan Commitment or Term Loan A
Commitment based upon the Leverage Ratio as of the end of the fiscal
quarter most recently ended, effective as of the third (3rd) Business
Day after the financial statements referred to in Section 6.1 or 6.2
hereof, as the case may be, are furnished to the Administrative Agent
for such fiscal quarter, as follows:
Applicable Margin for Applicable Margin for
Leverage Ratio Base Rate Advances LIBOR Advances
-------------- ----------------- --------------
Greater than 7.0:1.0. 1.750% 3.000%
Greater than 6.50:1.0, but less than or equal 1.500% 2.750%
to 7.0:1.0.
Greater than 6.00:1.0, but less than or equal 1.125% 2.375%
to 6.50:1.0.
Greater than 5.50:1.0, but less than or equal 0.750% 2.000%
to 6.00:1.0.
Greater than 5.00:1.0, but less than or equal 0.500% 1.750%
to 5.50:1.0.
Greater than 4.50:1.0, but less than or equal 0.250% 1.500%
to 5.00:1.0.
Less than or equal to 4.50:1.0. 0.000% 1.250%
(ii) Term Loan B. The Applicable Margin shall be
determined by the Administrative Agent with respect to any Advance
under the Term Loan B Commitment based upon the Leverage Ratio as of
the end of the fiscal quarter most recently ended, effective as of the
third (3rd) Business Day after the financial statements referred to in
Section 6.1 or 6.2 hereof, as the case may be, are furnished to the
Administrative Agent for such fiscal quarter, as follows:
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Applicable Margin Applicable Margin
Leverage Ratio for Base Rate Advances for LIBOR Advances
-------------- ---------------------- ------------------
Greater than or equal to 6.0:1.0. 2.000% 3.250%
Less than 6.0:1.0. 1.750% 3.000%
Notwithstanding the foregoing Sections 2.3(f)(i) and (ii), if the
Borrower shall fail to timely deliver to the Administrative Agent the financial
statements required for the calculation of the Leverage Ratio for any fiscal
quarter, then commencing with the Business Day after the date such financial
statements were due and continuing through the third (3rd) Business Day
following the date of delivery thereof, the Leverage Ratio for such period shall
be conclusively presumed to be, and the Applicable Margin shall be calculated
based upon, the highest Leverage Ratio level listed in the tables set forth
above in Section 2.3(f)(i) or (ii), as applicable.
Section 2.4 Fees.
(a) Revolving Loan Commitment Fee. The Borrower agrees to pay
to the Administrative Agent for the account of each of the Lenders, in
accordance with such Lender's respective Commitment Ratio for the Revolving Loan
Commitment a commitment fee on the Available Revolving Loan Commitment for each
day from the Agreement Date through the Revolving Loan Maturity Date as follows:
(a) if the Leverage Ratio is greater than 5.75:1.00 on such date, then the
commitment fee shall be equal to the product of (i) the Available Revolving Loan
Commitment times (ii) one-half of one percent (0.50%); and (b) if the Leverage
Ratio is less than or equal to 5.75:1.00 on such date, then the commitment fee
shall be equal to the product of (i) the Available Revolving Loan Commitment
times (ii) one-quarter of one percent (0.25%). Such commitment fees shall be
computed on the basis of a year of 360-days for the actual number of days
elapsed, shall be payable quarterly in arrears on the last Business Day of each
fiscal quarter commencing December 31, 1999, and shall be fully earned when due
and non-refundable when paid. A final payment of all commitment fees then
payable shall also be due and payable on the Revolving Loan Maturity Date.
(b) Letter of Credit Fees. The Letters of Credit shall be
issued for a fee of one and one-eighth percent (1.125%) per annum of the stated
amount thereof, payable upon issuance. The fee shall be payable to the
Administrative Agent for the benefit of the Lenders who issued a Revolving Loan
Commitment in accordance with their Commitment Ratios. If any Letter of Credit
is drawn upon prior to its expiration date, the Lenders shall reimburse to the
Borrower that portion of the fee allocable to the period from the date of the
draw to the expiration date, calculated in accordance with the Issuing Bank's
standard letter of credit procedures. In addition, the Borrower shall pay to the
Issuing Bank for its own account its standard charges for the issuance of
letters of credit and for draws upon letters of credit, which charges, as of the
Agreement Date, are as follows: (i) $200 per Letter of Credit, payable upon
issuance; and (ii) $100 per Letter of Credit, payable upon a draw under such
Letter of Credit.
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(c) Other Fees. The Borrower shall pay such other fees as are
set forth in any fee letter executed by the Borrower in connection with this
Agreement.
Section 2.5 Mandatory Commitment Reductions.
(a) Scheduled Reductions under the Revolving Loan Commitment.
Commencing on September 30, 2000 and at the end of each fiscal quarter
thereafter, the Revolving Loan Commitment as of September 29, 2000 shall be
automatically and permanently reduced by the percentage amount set forth below
for and on the dates indicated (which reductions are in addition to those set
forth elsewhere in this Agreement):
Percentage Reduction
to Revolving Loan
Commitment as of
Reduction Dates September 29, 2000
--------------- ------------------
September 30, 2000 and December 31, 2000 5.000%
March 31, 2001, June 30, 2001, September 30, 2001
and December 31, 2001 3.750%
March 31, 2002, June 30, 2002, September 30, 2002
and December 31, 2002 3.750%
March 31, 2003, June 30, 2003, September 30, 2003
and December 31, 2003 5.000%
March 31, 2004, June 30, 2004, September 30, 2004
and December 31, 2004 6.250%
March 31, 2005 and June 30, 2005 7.500%
(b) Reduction From Net Proceeds of Asset Sales or Insurance or
Condemnation Proceedings. The Revolving Loan Commitment shall be automatically
and permanently reduced by an amount equal to the repayment of Revolving Loans
required under Section 2.7(b)(iii) hereof; provided, however, that if there are
no Loans then outstanding, the Revolving Loan Commitment shall be reduced by an
amount equal to the Revolving Loan Repayment Proceeds. Reductions to the
Revolving Loan Commitment under this Section 2.5(b) shall be applied to the
reductions set forth in Section 2.5(a) hereof in inverse order of maturity.
Section 2.6 Voluntary Commitment Reductions. The Borrower shall have
the right, at any time and from time to time after the Agreement Date, upon at
least five (5) Business Days' prior written notice to the Administrative Agent,
without premium or penalty, to cancel or reduce permanently all or a portion of
the Revolving Loan Commitment, on a pro rata basis among the
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Lenders, provided, however, that any such partial reduction shall be made in an
amount not less than $5,000,000.00 and in integral multiples of not less than
$1,000,000.00. As of the date of cancellation or reduction set forth in such
notice, the Revolving Loan Commitment shall be permanently reduced to the amount
stated in the Borrower's notice for all purposes herein, and the Borrower shall
pay to the Administrative Agent for the Lenders the amount necessary to reduce
the principal amount of the Revolving Loans then outstanding to not more than
the amount of the Revolving Loan Commitment as so reduced, together with accrued
interest on the amount so prepaid and commitment fees accrued through the date
of the reduction with respect to the amount reduced. Reductions to the Revolving
Loan Commitment under this Section 2.6 shall be applied to the reductions set
forth in Section 2.5(a) hereof pro rata across maturities.
Section 2.7 Prepayments and Repayments.
(a) Prepayments. The principal amount of any Base Rate
Advance may be prepaid in full or ratably in part at any time without penalty
and without regard to the Payment Date for such Advance upon written notice, or
telephonic notice followed immediately by written notice, to the Administrative
Agent on the date of such prepayment; provided, however, that the Borrower's
failure to confirm any telephonic notice with a written notice shall not
invalidate any notice so given if acted upon by the Administrative Agent. LIBOR
Advances may be prepaid prior to the applicable Payment Date, upon three (3)
Business Days' prior written notice, or telephonic notice followed immediately
by written notice, to the Administrative Agent; provided, however, that the
Borrower shall reimburse the Lenders and the Administrative Agent, on the
earlier of demand by the applicable Lender or the Maturity Date, for any loss or
reasonable out-of-pocket expense incurred by any Lender or the Administrative
Agent in connection with such prepayment, as set forth in Section 2.10 hereof;
provided further, however, that the Borrower's failure to confirm any telephonic
notice with a written notice shall not invalidate any notice so given if acted
upon by the Administrative Agent. Any prepayment hereunder shall be in amounts
of not less than $500,000.00 and in integral multiples of $500,000.00. Revolving
Loans prepaid pursuant to this Section 2.7(a) may be reborrowed, subject to the
terms and conditions hereof. Any Term Loan A or Term Loan B prepaid pursuant to
this Section 2.7(a) may not be reborrowed. Amounts prepaid shall be paid
together with accrued interest on the amount so prepaid accrued through the date
of such prepayment.
(b) Repayments. The Borrower shall repay the Loans as
follows:
(i) Scheduled Repayments.
(A) Term Loan A. Commencing on December 31,
1999, the principal balance of Term Loan A outstanding on December 30, 1999
shall be repaid in consecutive quarterly installments on the last day of each
fiscal quarter ending during the periods set forth below until paid in full in
such amounts as follows:
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Percentage of Principal of
Term Loan A outstanding on
Repayment Dates December 30, 1999 Due on each Repayment Date
--------------- --------------------------------------------
December 31, 1999 2.500%
March 31, 2000, June 30, 2000,
September 30, 2000 and December 31, 2000 2.500%
March 31, 2001, June 30, 2001,
September 30, 2001 and December 31, 2001 2.500%
March 31, 2002, June 30, 2002,
September 30, 2002 and December 31, 2002 4.375%
March 31, 2003, June 30, 2003,
September 30, 2003 and December 31, 2003 4.375%
March 31, 2004, June 30, 2004
September 30, 2004 and December 31, 2004 5.31225%
March 31, 2005 and June 30, 2005 10.625%
(B) Term Loan B. Commencing on March 31,
2001, the principal balance of Term Loan B outstanding on March 30, 2001 shall
be repaid in consecutive quarterly installments on the last day of each fiscal
quarter ending during the periods set forth below until paid in full in such
amounts as follows:
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Percentage of Principal of
Term Loan B outstanding on
Repayment Dates March 30, 2001 Due on each Repayment Date
--------------- -----------------------------------------
March 31, 2001, June 30, 2001,
September 30, 2001 and December 31, 2001 0.250%
March 31, 2002, June 30, 2002,
September 30, 2002 and December 31, 2002 0.250%
March 31, 2003, June 30, 2003,
September 30, 2003 and December 31, 2003 0.250%
March 31, 2004, June 30, 2004,
September 30, 2004 and December 31, 2004 0.250%
March 31, 2005, June 30, 2005, and
September 30, 2005 0.250%
December 31, 2005 95.250%
(ii) Revolving Loans in Excess of Revolving Loan
Commitment. If, at any time, the sum of the aggregate amount of the
Revolving Loans and Letter of Credit Obligations outstanding shall
exceed the Revolving Loan Commitment, the Borrower shall make a
repayment of the principal amount of the Revolving Loans on such date
in an aggregate amount equal to such excess, together with any accrued
interest with respect thereto.
(iii) Repayments From Net Proceeds of Asset Sales or
Insurance or Condemnation Proceedings. On the Business Day following
the date of receipt by the Borrower or any of its Subsidiaries of any
Net Proceeds (other than in connection with an Asset Sale permitted
under Section 7.4(a) (i) or (ii) hereof), the Loans shall be
automatically and permanently prepaid as set forth in Section
2.7(b)(iv) hereof in an amount equal to, in the aggregate, one-hundred
percent (100%) of any Net Proceeds; provided, however, that no
prepayment under this Section 2.7(b)(iii) shall occur if such Net
Proceeds (A) are from an Asset Sale and are reinvested in Stations,
Newspapers, the Porta-Phone Paging Business, the Satellite Broadcasting
Business and other assets related to the Borrower's business within the
succeeding three hundred sixty-five (365) day period or (B) are from an
insurance or condemnation proceeding and are reinvested in Stations,
Newspapers, the Porta-Phone Paging Business, the Satellite Broadcasting
Business and other assets related to the Borrower's business within the
succeeding ninety (90) day period.
(iv) Allocation of Repayment Amounts. On the Business
Day of the receipt by the Borrower or any Subsidiary of any Net
Proceeds, (A) the Term Loan A
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then outstanding shall be prepaid by an amount equal to the Term Loan A
Repayment Proceeds, (B) the Term Loan B then outstanding shall be
prepaid by an amount equal to the Term Loan B Repayment Proceeds, and
(C) the Revolving Loans then outstanding shall be prepaid by an amount
equal to the Revolving Loan Repayment Proceeds. Amounts so repaid shall
be applied to the principal of Term Loan A or Term Loan B, as
applicable, in inverse order of maturity set forth in Section 2.7(b)(i)
hereof.
(v) Revolving Loan Maturity Date. In addition to the
foregoing, a final payment of all Revolving Loans, together with
accrued interest and fees with respect thereto, shall be due and
payable on the Revolving Loan Maturity Date.
(vi) Term Loan A Maturity Date. In addition to the
foregoing, a final payment of Term Loan A, together with accrued
interest and fees with respect thereto, shall be due and payable on the
Term Loan A Maturity Date.
(vii) Term Loan B Maturity Date. In addition to the
foregoing, a final payment of Term Loan B, together with accrued
interest and fees with respect thereto and all other Obligations then
outstanding, shall be due and payable on the Term Loan B Maturity Date.
Section 2.8 Notes; Loan Accounts.
(a) The Loans shall be repayable in accordance with the
terms and provisions set forth herein and shall be evidenced by the Notes. One
(1) Revolving Loan Note, one (1) Term Loan A Note and one (1) Term Loan B Note
shall be payable to the order of each Lender, in accordance with such Lender's
respective applicable Commitment Ratio. The Revolving Loan Notes, Term Loan A
Notes and the Term Loan B Notes shall be issued by the Borrower to the Lenders
and shall be duly executed and delivered by one (1) or more Authorized
Signatories. Any Lender (i) which is not a United States Person (a "Non-U.S.
Lender") and (ii) which would become completely exempt from withholding of
United States federal income taxes in respect of payment of any obligations due
to such Lender hereunder or under the Notes or any other Loan Document relating
to any of its Loans if such Loans were in registered form for United States
federal income tax purposes may request the Borrower (through the Administrative
Agent), and the Borrower agrees thereupon, at the cost and expense of such
Lender, to register such Loans as provided in Section 11.5(g) hereof and to
issue to such Lender Notes evidencing such Loans as Registered Notes or to
exchange Notes evidencing such Loans for new Registered Notes, as applicable.
Registered Notes may not be exchanged for Notes that are not in registered form.
(b) Each Lender may open and maintain on its books in the
name of the Borrower a loan account with respect to its portion of the Loans and
interest thereon. Each Lender which opens such a loan account shall debit such
loan account for the principal amount of its portion of each Advance made by it
and accrued interest thereon, and shall credit such loan account for each
payment on account of principal of or interest on its Loans. The records of a
Lender with respect to the loan account maintained by it shall be prima facie
evidence of its portion of the Loans and accrued interest thereon absent
manifest error, but the failure of any
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Lender to make any such notations or any error or mistake in such notations
shall not affect the Borrower's repayment obligations with respect to such
Loans.
Section 2.9 Manner of Payment.
(a) Each payment (including any prepayment) by the Borrower on
account of the principal of or interest on the Loans, commitment fees and any
other amount owed to the Lenders or the Administrative Agent or any of them
under this Agreement or the Notes shall be made not later than 1:00 p.m.
(Atlanta, Georgia time) on the date specified for payment under this Agreement
to the Administrative Agent at the Administrative Agent's Office, for the
account of the Lenders or the Administrative Agent, as the case may be, in
lawful money of the United States of America in immediately available funds. Any
payment received by the Administrative Agent after 1:00 p.m. (Atlanta, Georgia
time) shall be deemed received on the next Business Day. Receipt by the
Administrative Agent of any payment intended for any Lender or Lenders hereunder
prior to 1:00 p.m. (Atlanta, Georgia time) on any Business Day shall be deemed
to constitute receipt by such Lender or Lenders on such Business Day. In the
case of a payment for the account of a Lender, the Administrative Agent will
promptly, but no later than the close of business on the date such payment is
deemed received, thereafter distribute the amount so received in like funds to
such Lender. If the Administrative Agent shall not have received any payment
from the Borrower as and when due, the Administrative Agent will promptly notify
the Lenders accordingly. In the event that the Administrative Agent shall fail
to make distribution to any Lender as required under this Section 2.9, the
Administrative Agent agrees to pay such Lender interest from the date such
payment was due until paid at the Federal Funds Rate.
(b) The Borrower agrees to pay principal, interest, fees and
all other amounts due hereunder or under the Notes without set-off or
counterclaim or any deduction whatsoever. So long as the applicable Lender has
complied with Section 2.13 hereof, the Borrower agrees to pay principal,
interest, fees and all other amounts due hereunder, under the Notes or under any
other Loan Document free and clear of all taxes, levies and withholding. So long
as the applicable Lender has complied with Section 2.13 hereof, if the Borrower
is required by Applicable Law to deduct any taxes from or in respect of any sum
payable to the such Lender hereunder, under any Note or under any other Loan
Document: (i) the sum payable hereunder or thereunder, as applicable, shall be
increased to the extent necessary to provide that, after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.9(b)), the Administrative Agent or such Lender, as applicable,
receives an amount equal to the sum it would have received had no such
deductions been made; (ii) the Borrower shall make such deductions from such
sums payable hereunder or thereunder, as applicable, and pay the amount so
deducted to the relevant taxing authority as required by Applicable Law; and
(iii) the Borrower shall provide the Administrative Agent or such Lender, as
applicable, with evidence satisfactory to the Administrative Agent or such
Lender, as applicable, that such deducted amounts have been paid to the relevant
taxing authority. Before making any such deductions, such Lender shall designate
a different lending office and may take such alternative courses of action if
such designation or alternative courses of action will avoid the need for such
deductions and will not in the good faith judgment of such Lender be otherwise
disadvantageous to such Lender.
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(c) Subject to any contrary provisions in the definition of
Interest Period, if any payment under this Agreement or any of the other Loan
Documents is specified to be made on a day which is not a Business Day, it shall
be made on the next Business Day, and such extension of time shall in such case
be included in computing interest and fees, if any, in connection with such
payment.
(d) Prior to the declaration of an Event of Default under
Section 8.2 hereof, if some but less than all amounts due from the Borrower are
received by the Administrative Agent with respect to the Obligations, the
Administrative Agent shall distribute such amounts in the following order of
priority, all in accordance where applicable with the respective Commitment
Ratios of the Lenders for the applicable Commitment: first, to the payment of
any fees or expenses then due and payable to the Administrative Agent, the
Issuing Bank and the Lenders, or any of them; second, to the payment of interest
then due and payable on the Loans; third, to the payment of all other amounts
not otherwise referred to in this Section 2.9(d) then due and payable to the
Administrative Agent, the Issuing Bank and the Lenders, or any of them,
hereunder or under the Notes, the Letters of Credit or any other Loan Document;
fourth, to the payment of principal then due and payable on the Loans; fifth, to
any other Obligations not otherwise referred to in this Section 2.9(d) until all
such Obligations are paid in full; sixth, to damages incurred by the
Administrative Agent, the Issuing Bank or the Lenders, or any of them, by reason
of any breach hereof or of any other Loan Document; and seventh, as otherwise
required by Applicable Law.
Section 2.10 Reimbursement.
(a) Whenever any Lender shall sustain or incur any losses or
reasonable out-of-pocket expenses in connection with (i) failure by the Borrower
to borrow, Continue or Convert any LIBOR Advance after having given notice of
its intention to borrow, Continue or Convert such Advance in accordance with
Section 2.2 hereof (whether by reason of the Borrower's election not to proceed
or the non-fulfillment of any of the conditions set forth in Article 3), or (ii)
prepayment (or failure to prepay after giving notice thereof) of any LIBOR
Advance in whole or in part for any reason, the Borrower agrees to pay to such
Lender, upon the earlier of such Lender's demand or the Maturity Date, an amount
sufficient to compensate such Lender for all such losses and out-of-pocket
expenses. Such Lender's good faith determination of the amount of such losses or
out-of-pocket expenses, as set forth in writing and accompanied by calculations
in reasonable detail demonstrating the basis for its demand, shall be
presumptively correct absent manifest error.
(b) Losses subject to reimbursement hereunder shall include,
without limitation, expenses incurred by any Lender or any participant of such
Lender permitted hereunder in connection with the re-employment of funds
prepaid, paid, repaid, not borrowed, or not paid, as the case may be, and will
be payable whether the Maturity Date is changed by virtue of an amendment hereto
(unless such amendment expressly waives such payment) or as a result of
acceleration of the Obligations.
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Section 2.11 Pro Rata Treatment.
(a) Advances. Each Advance under the Revolving Loan Commitment
from the Lenders hereunder made on or after the Agreement Date, shall be made
pro rata on the basis of the respective Commitment Ratios of the Lenders. On the
Agreement Date, each Advance from the Lenders under each of the Term Loan A
Commitment and the Term Loan B Commitment shall be made pro rata on the basis of
the respective Commitment Ratios of the Lenders.
(b) Payments. Each payment and prepayment of principal of the
Loans, and, except as provided in each of Section 2.2(e) and Article 10 hereof,
each payment of interest on the Loans, shall be made to the Lenders pro rata on
the basis of their respective unpaid principal amounts outstanding under the
applicable Notes immediately prior to such payment or prepayment. If any Lender
shall obtain any payment (whether involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Loans in excess of its ratable share
of the applicable Loans under its applicable Commitment Ratio, such Lender shall
forthwith purchase from the other Lenders such participations in the portion of
the applicable Loans made by them as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them; provided, however,
that if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery. The Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 2.11(b) may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of such
participation.
Section 2.12 Capital Adequacy. If after the date hereof, the adoption
of any Applicable Law regarding the capital adequacy of banks or bank holding
companies, or any change in Applicable Law (whether adopted before or after the
Agreement Date) or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by such Lender with any
directive regarding capital adequacy (whether or not having the force of law) of
any such governmental authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on any Lender's capital as a
consequence of its obligations hereunder with respect to the Loans and the
Revolving Loan Commitment to a level below that which it could have achieved but
for such adoption, change or compliance (taking into consideration such Lender's
policies with respect to capital adequacy immediately before such adoption,
change or compliance and assuming that such Lender's capital was fully utilized
prior to such adoption, change or compliance) by an amount reasonably deemed by
such Lender to be material, then, upon the earlier of demand by such Lender or
the Maturity Date, the Borrower shall promptly pay to such Lender such
additional amounts as shall be sufficient to compensate such Lender for such
reduced return, together with interest on such amount from the fourth (4th)
Business Day after the date of demand or the Maturity Date, as applicable, until
payment in full thereof at the Default Rate. A certificate of such Lender
setting forth the amount to be paid to such Lender by the Borrower as a result
of any event referred to in this paragraph
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and supporting calculations in reasonable detail shall be presumptively correct
absent manifest error.
Section 2.13 Lender Tax Forms. On or prior to the Agreement Date, and
prior to the date on which any Person becomes a Lender hereunder, and from time
to time thereafter if required by Applicable Law due to a change in
circumstances or if reasonably requested by the Borrower or the Administrative
Agent (unless such Lender is unable to do so by reasons of change in Applicable
Law), each Lender organized under the laws of a jurisdiction outside the United
States shall provide the Administrative Agent and the Borrower with (i) an
accurate and duly completed United States Internal Revenue Service Form 4224 or
Form 1001, as the case may be, and Form W-8 or Form W-9, as the case may be, or
other applicable or successor form, certificate or document prescribed by the
United States Internal Revenue Service certifying as to such Lender's
entitlement to full exemption from United States withholding tax with respect to
all payments to be made to such Lender hereunder or under any Note or other Loan
Document, or, (ii) in the case of a Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal
Revenue Service Form 1001 or 4224 pursuant to clause (i) above, (A) an accurate
and duly completed United States Internal Revenue Service Form W-8, or other
applicable or successor form, certificate or document prescribed by the United
States Internal Revenue Service certifying to such Lender's foreign status and
(B) a certificate certifying to such Lender's entitlement to a complete
exemption from United States withholding tax with respect to all payments
hereunder or under any Note or other Loan Document. In the event that the
Borrower withholds a portion of any payment hereunder or under any Note or other
Loan Document in accordance with this Section 2.13, the Borrower shall provide
evidence that such taxes of any nature whatsoever in respect of this Agreement,
any Loan or any Note or other Loan Document shall have been paid to the
appropriate taxing authorities by delivery to the Lender on whose account such
payment was made of the official tax receipts or notarized copies of such
receipts within thirty (30) days after payment of such tax. If the Borrower
fails to make any such payment when due, the Borrower shall indemnify the
Lenders for any incremental taxes, interest or penalties that may become payable
by any Lender as a result of any such failure. For any period with respect to
which a Lender has failed to provide the Borrower with the appropriate form
described above (other than if such failure is due to a change in Applicable Law
occurring subsequent to the date on which a form originally was required to be
provided), such Lender shall not be entitled to indemnification with respect to
withholding taxes imposed by the United States and the Borrower shall be allowed
to deduct from payments to such Lender hereunder and under any Note or other
Loan Document, the amount of any such withholding taxes paid by the Borrower.
Section 2.14 Letters of Credit.
(a) Subject to the terms and conditions hereof, the Issuing
Bank, on behalf of the Lenders, and in reliance on the agreements of the Lenders
set forth in Section 2.14(d) hereof, hereby agrees to issue one or more Letters
of Credit up to an aggregate face amount equal to the Available Letter of Credit
Commitment determined immediately prior to giving effect to the issuance
thereof; provided, however, that the Issuing Bank shall not issue any Letter of
Credit unless the conditions precedent to the issuance thereof set forth in
Section 3.3 hereof have been
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satisfied, and shall have no obligation to issue any Letter of Credit if any
Default then exists or would be caused thereby or if, after giving effect to
such issuance, the Available Revolving Loan Commitment would be less than zero;
and provided further, however, that at no time shall the total Letter of Credit
Obligations outstanding hereunder exceed $15,000,000.00. Each Letter of Credit
shall (1) be denominated in United States dollars, and (2) expire no later than
the earlier to occur of (A) the Revolving Loan Maturity Date or (B) 364-days
after its date of issuance (but may contain provisions for automatic renewal;
provided that no Default or Event of Default exists on the renewal date or would
be caused by such renewal). Each Letter of Credit shall be subject to the
Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500 and, to the extent not
inconsistent therewith, the laws of the State of Georgia. The Issuing Bank shall
not at any time be obligated to issue, or cause to be issued, any Letter of
Credit if such issuance would conflict with, or cause the Issuing Bank to exceed
any limits imposed by, any Applicable Law. If a Letter of Credit provides that
it is automatically renewable unless notice is given by the Issuing Bank that it
will not be renewed, the Issuing Bank shall not be bound to give a notice of
non-renewal unless directed to do so by the Required Lenders at least sixty-five
(65) days prior to the then scheduled expiration date of such Letter of Credit.
(b) The Borrower may from time to time request the issuance
of, and be provided with by the Issuing Bank, Letters of Credit. The Borrower
shall execute and deliver to the Administrative Agent and the Issuing Bank a
Request for Issuance of Letter of Credit for each Letter of Credit to be issued
by the Issuing Bank, not later than 12:00 noon (Atlanta, Georgia time) on the
fifth (5th) Business Day preceding the date on which the requested Letter of
Credit is to be issued, or such shorter notice as may be acceptable to the
Issuing Bank and the Administrative Agent. Upon receipt of any such Request for
Issuance of Letter of Credit, subject to satisfaction of all conditions
precedent thereto as set forth in Section 3.3 hereof, the Issuing Bank shall
process such Request for Issuance of Letter of Credit 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. The Issuing Bank shall furnish a copy of
such Letter of Credit to the Borrower and the Administrative Agent following the
issuance thereof. The Borrower shall pay or reimburse the Issuing Bank for
normal and customary costs and expenses incurred by the Issuing Bank in issuing,
effecting payment under, amending or otherwise administering the Letters of
Credit.
(c) At such time as the Administrative Agent shall be notified
by the Issuing Bank that the beneficiary under any Letter of Credit has drawn on
the same, the Administrative Agent shall promptly notify the Borrower and each
Lender, by telephone or telecopy, of the amount of the draw and, in the case of
each Lender, such Lender's portion of such draw amount as calculated in
accordance with its Revolving Loan Commitment Ratio.
(d) The Borrower hereby agrees to immediately reimburse the
Issuing Bank for amounts paid by the Issuing Bank in respect of draws under a
Letter of Credit issued at the Borrower's request. In order to facilitate such
repayment, the Borrower hereby irrevocably requests the Lenders having a
Revolving Loan Commitment, and such Lenders hereby severally agree, on the terms
and conditions of this Agreement (other than as provided in Article 2 hereof
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with respect to the amounts of, the timing of requests for, and the repayment of
Advances hereunder and in Section 3.3 hereof with respect to conditions
precedent to Advances hereunder), with respect to any drawing under a Letter of
Credit prior to the occurrence of an event described in Sections 8.1(f) or (g)
hereof, to make an Advance (which Advance may be a LIBOR Advance if the Borrower
so requests in a timely manner or may be converted to a LIBOR Advance as
provided in the Loan Agreement) to the Borrower on each day on which a draw is
made under any Letter of Credit and in the amount of such draw, and to pay the
proceeds of such Advance directly to the Issuing Bank to reimburse the Issuing
Bank for the amount paid by it upon such draw. Each Lender having a Revolving
Loan Commitment shall pay its share of such Advance by paying its portion of
such Advance to the Administrative Agent in accordance with Article 2 hereof and
its Revolving Loan Commitment Ratio, without reduction for any set-off or
counterclaim of any nature whatsoever and regardless of whether any Default or
Event of Default (other than with respect to an event described in Sections 8.1
(f) or (g) hereof) then exists or would be caused thereby. If at any time that
any Letters of Credit are outstanding, any of the events described in Sections
8.1 (f) or (g) hereof shall have occurred and be continuing, then each Lender
having a Revolving Loan Commitment shall, automatically upon the occurrence of
any such event and without any action on the part of the Issuing Bank, the
Borrower, the Administrative Agent or such Lender, be deemed to have purchased
an undivided participation in the face amount of all Letters of Credit then
outstanding in an amount equal to such Lender's Revolving Loan Commitment Ratio,
and each Lender having a Revolving Loan Commitment shall, notwithstanding such
Default or Event of Default, upon a drawing under any Letter of Credit,
immediately pay to the Administrative Agent for the account of the Issuing Bank,
in immediately available funds, the amount of such Lender's participation (and
the Issuing Bank shall deliver to such Lender a loan participation certificate
dated the date of the occurrence of such event and in the amount of such
Lender's Revolving Loan Commitment Ratio). The disbursement of funds in
connection with a draw under a Letter of Credit pursuant to this Section 2.14(d)
shall be subject to the terms and conditions of Article 2 hereof. The obligation
of each Lender having a Revolving Loan Commitment to make payments to the
Administrative Agent, for the account of the Issuing Bank, in accordance with
this Section 2.14 shall be absolute and unconditional and no such Lender shall
be relieved of its obligations to make such payments by reason of noncompliance
by any other Person with the terms of the Letter of Credit or for any other
reason. The Administrative Agent shall promptly remit to the Issuing Bank the
amounts so received from the other Lenders. Any overdue amounts payable by the
Lenders having a Revolving Loan Commitment to the Issuing Bank in respect of a
draw under any Letter of Credit shall bear interest, payable on demand, at the
Federal Funds Rate.
(e) The Borrower agrees that any action taken or omitted to be
taken by the Issuing Bank in connection with any Letter of Credit, except for
such actions or omissions as shall constitute gross negligence or willful
misconduct on the part of the Issuing Bank, shall be binding on the Borrower as
between the Borrower and the Issuing Bank, and shall not result in any liability
of the Issuing Bank to the Borrower. The obligation of the Borrower to reimburse
the Lenders for Advances made to reimburse the Issuing Bank for draws under the
Letter of Credit shall be absolute, unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances whatsoever, including, without limitation, the following
circumstances:
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(i) any lack of validity or enforceability of any
Loan Document;
(ii) any amendment or waiver of or consent to any
departure from any or all of the Loan Documents;
(iii) any improper use which may be made of any
Letter of Credit or any improper acts or omissions of any beneficiary or
transferee of any Letter of Credit in connection therewith;
(iv) the existence of any claim, set-off, defense
or any right which the Borrower may have at any time against any beneficiary or
any transferee of any Letter of Credit (or Persons for whom any such beneficiary
or any such transferee may be acting) or any Lender (other than the defense of
payment to such Lender in accordance with the terms of this Agreement) or any
other Person, whether in connection with any Letter of Credit, any transaction
contemplated by any Letter of Credit, this Agreement or any other Loan Document,
or any unrelated transaction;
(v) any statement or any other documents presented
under any Letter of Credit proving to be insufficient, forged, fraudulent or
invalid in any respect or any statement therein being untrue or inaccurate in
any respect whatsoever;
(vi) the insolvency of any Person issuing any
documents in connection with any Letter of Credit;
(vii) any breach of any agreement between the
Borrower and any beneficiary or transferee of any Letter of Credit, provided
that the same shall not have resulted from the gross negligence or willful
misconduct of the Issuing Bank;
(viii) any irregularity in the transaction with
respect to which any Letter of Credit is issued, including, without limitation,
any fraud by the beneficiary or any transferee of such Letter of Credit,
provided that the same shall not be the result of the gross negligence or
willful misconduct of the Issuing Bank;
(ix) any errors, omissions, interruptions or delays
in transmission or delivery of any messages, by mail, cable, telegraph, wireless
or otherwise, whether or not they are in code, provided that the same shall not
be the result of the gross negligence or willful misconduct of the Issuing Bank;
(x) any act, error, neglect, default, omission,
insolvency or failure of business of any of the correspondents of the Issuing
Bank, provided that the same shall not have constituted the gross negligence or
willful misconduct of the Issuing Bank;
(xi) any other circumstances arising from causes
beyond the control of the Issuing Bank;
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(xii) payment by the Issuing Bank under any Letter
of Credit against presentation of a sight draft or a certificate
which does not comply with the terms of such Letter of Credit,
provided that such payment shall not have constituted gross
negligence or willful misconduct of the Issuing Bank; and
(xiii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing, provided
that such other circumstances or happenings shall not have been the
result of gross negligence or willful misconduct of the Issuing Bank.
(f) If any change in Applicable Law, any change in the
interpretation or administration thereof, or any change in compliance with
Applicable Law by the Issuing Bank or any Lender as a result of any official
request or directive of any governmental authority, central bank or comparable
agency (whether or not having the force of law) shall (i) impose, modify or deem
applicable any reserve (including, without limitation, any imposed by the Board
of Governors of the Federal Reserve System), special deposit, capital adequacy,
assessment or other requirements or conditions against Letters of Credit issued
by the Issuing Bank or against participations by any other Lender in the Letters
of Credit or (ii) impose on the Issuing Bank or any other Lender any other
condition regarding any Letter of Credit or any participation therein, and the
result of any of the foregoing in the reasonable determination of the Issuing
Bank or such Lender, as the case may be, is to increase the cost to the Issuing
Bank or such Lender of issuing or maintaining any Letter of Credit or purchasing
or maintaining any participation therein, as the case may be, by an amount
(which amount shall be reasonably determined) deemed by the Issuing Bank or such
Lender to be material, and the designation of a different lending office will
not avoid the need for additional compensation, then, on request by the Issuing
Bank or such Lender, the Borrower shall pay, within ten (10) days after demand,
the Issuing Bank or such Lender, as the case may be, such additional amount or
amounts as the Issuing Bank or such Lender, as the case may be, so determines
will compensate it for such increased costs. A certificate of the Issuing Bank
or such Lender setting forth the amount, and in reasonable detail the basis for
the Issuing Bank or such Lender's determination of such amount, to be paid to
the Issuing Bank or such Lender by the Borrower as a result of any event
referred to in this Section 2.14(f) shall, absent manifest error, be conclusive.
(g) Each Lender having a Revolving Loan Commitment shall
be responsible for its pro rata share (based on such Lender's Revolving Loan
Commitment Ratio) of any and all reasonable out-of-pocket costs, expenses
(including, without limitation, reasonable legal fees) and disbursements which
may be incurred or made by the Issuing Bank in connection with the collection
of any amounts due under, the administration of, or the presentation or
enforcement of any rights conferred by any Letter of Credit, the Borrower's or
any guarantor's obligations to reimburse or otherwise. In the event the
Borrower shall fail to pay such expenses of the Issuing Bank within ten (10)
days after demand for payment by the Issuing Bank, each Lender having a
Revolving Loan Commitment shall thereupon pay to the Issuing Bank its pro rata
share (based on such Lender's Revolving Loan Commitment Ratio) of such expenses
within five (5) days from the date of the Issuing Bank's notice to the Lenders
having a Revolving Loan Commitment
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of the Borrower's failure to pay; provided, however, that if the Borrower or
any guarantor shall thereafter pay such expense, the Issuing Bank will repay to
each Lender having a Revolving Loan Commitment Ratio the amounts received from
such Lender hereunder.
(h) The Borrower agrees that each Advance by the Lenders
having a Revolving Loan Commitment to reimburse the Issuing Bank for draws under
any Letter of Credit, shall, for all purposes hereunder, be deemed to be an
Advance under the Revolving Loan Commitment to the Borrower and shall be payable
and bear interest in accordance with all other Loans to the Borrower.
(i) The Borrower will indemnify and hold harmless the
Administrative Agent, the Issuing Bank and each other Lender and each of their
respective employees, representatives, officers and directors from and against
any and all claims, liabilities, obligations, losses (other than loss of
profits), damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including reasonable attorneys'
fees, but excluding taxes) which may be imposed on, incurred by or asserted
against the Administrative Agent, the Issuing Bank or any such other Lender in
any way relating to or arising out of the issuance of a Letter of Credit, except
that the Borrower shall not be liable to the Administrative Agent, the Issuing
Bank or any such Lender for any portion of such claims, liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent, the Issuing Bank or such Lender, as the
case may be, as determined by a non-appealable judicial order. This Section
2.14(i) shall survive termination of this Agreement.
ARTICLE 3
Conditions Precedent
Section 3.1 Conditions Precedent to Effectiveness of Agreement. The
obligation of the Lenders to undertake the Commitments and the effectiveness of
this Agreement are subject to the prior or contemporaneous fulfillment of each
of the following conditions:
(a) The Administrative Agent and the Lenders shall have
received each of the following:
(i) this Agreement duly executed;
(ii) duly executed Notes;
(iii) duly executed Borrower Pledge Agreement;
(iv) duly executed Borrower Security Agreement,
together with duly executed appropriate Uniform Commercial Code
financing statement forms to the extent requested by the Administrative
Agent;
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(v) duly executed Subsidiary Guaranties;
(vi) duly executed Subsidiary Pledge Agreements;
(vii) duly executed (A) Assignments of General
Partner Interests and (B) Assignments of Limited Partner Interests,
each together with duly executed appropriate Uniform Commercial Code
financing statement forms to the extent requested by the Administrative
Agent;
(viii) duly executed Subsidiary Security Agreements,
together with duly executed appropriate Uniform Commercial Code
financing statement forms to the extent requested by the Administrative
Agent;
(ix) duly executed Mortgages, or confirmations
thereof, with respect to the Real Property of the Borrower and its
Subsidiaries, including, without limitation, the Real Property acquired
in the Texas Acquisition, together with duly executed appropriate
Uniform Commercial Code financing statement forms, appropriate surveys
and title insurance to the extent requested by the Administrative
Agent;
(x) the loan certificate of the Borrower dated as
of the Agreement Date, in substantially the form attached hereto as
Exhibit K-1, including a certificate of incumbency with respect to each
Authorized Signatory of such Person, together with the following items:
(A) a true, complete and correct copy of the Articles of Incorporation
of the Borrower as in effect on the Agreement Date, (B) a true,
complete and correct copy of the By-laws of the Borrower as in effect
on the Agreement Date, (C) certificates of good standing for the
Borrower issued by the Secretary of State or similar state official for
the state of incorporation of the Borrower and for each state in which
the Borrower is required to qualify to do business, (D) a true,
complete and correct copy of the corporate resolutions of the Borrower
authorizing the Borrower to execute, deliver and perform this Agreement
and the other Loan Documents and (E) a true, complete and correct copy
of any shareholders' agreements or voting agreements in effect with
respect to the Ownership Interests of the Borrower;
(xi) a loan certificate of each Subsidiary of the
Borrower (including all License Subs existing as of the Agreement Date)
dated as of the Agreement Date, in substantially the form attached
hereto as Exhibit K-2, including a certificate of incumbency with
respect to each Authorized Signatory of such Person, together with the
following items: (A) a true, complete and correct copy of the Articles
or Certificate of Incorporation or Formation of such Person as in
effect on the Agreement Date, (B) a true, complete and correct copy of
the By-laws or Operating Agreement of such Person as in effect on the
Agreement Date, (C) certificates of good standing for such Person
issued by the Secretary of State or similar state official for the
state of incorporation or formation of such Person and for each state
in which such Person is required to qualify to do business, (D) a true,
complete and correct copy of the resolutions of such Person (or another
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appropriate Person) authorizing such Person to execute, deliver and
perform the Loan Documents to which it is a party and (E) a true,
complete and correct copy of any shareholders' agreements or voting
agreements in effect with respect to the Ownership Interests of such
Person;
(xii) copies of insurance binders or certificates
covering the assets of the Borrower and its Subsidiaries, and otherwise
meeting the requirements of Section 5.5 hereof;
(xiii) legal opinions of (A) Xxxxxx & Xxxxxxxx,
corporate counsel to the Borrower and its Subsidiaries, and (B)
Venable, Baetjer, Xxxxxx and Civiletti LLP, FCC counsel, to the
Borrower and its Subsidiaries, addressed to each Lender and the
Administrative Agent and dated as of the Agreement Date which shall be
in form and substance acceptable to the Administrative Agent;
(xiv) duly executed Certificate of Financial
Condition for the Borrower and its Subsidiaries on a consolidated
basis;
(xv) copies of the financial statements of the
Borrower and its Subsidiaries and with respect to the Texas Acquisition
for the period ended June 30, 1999, certified by the chief financial
officer of the Borrower;
(xvi) financial projections and calculations after
giving effect to the Texas Acquisition, in form and substance
satisfactory to the Administrative Agent and the Lenders, specifically
demonstrating (x) the Borrower's pro forma compliance with Sections
7.8, 7.9, 7.10, 7.11., 7.12, 7.13 and 7.14 hereof, (y) the sources and
uses of funds for the Texas Acquisitions and (z) the Borrower's ability
to meet its repayment obligations hereunder through the Maturity Date;
(xvii) Uniform Commercial Code lien, tax and
judgment search results with respect to the Borrower and its
Subsidiaries and the properties and Persons involved in the Texas
Acquisition;
(xviii) evidence satisfactory to the Administrative
Agent and the Lenders that there is no outstanding Indebtedness secured
by, or Liens on, any of the assets and properties to be acquired in the
Texas Acquisition other than Permitted Liens;
(xix) delivery to the Administrative Agent of all
possessory collateral, including, without limitation, any pledged notes
or pledged stock, together with the undated stock powers endorsed in
blank, as applicable; and
(xx) all such other documents as the
Administrative Agent may reasonably request, certified by an
appropriate governmental official or an Authorized Signatory if so
requested.
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(b) The Administrative Agent and the Lenders shall have
received evidence satisfactory to them that all Necessary Authorizations,
including, without limitation, all necessary consents to the closing of this
Agreement and the Texas Acquisition, to the execution, delivery and performance
of this Agreement and the other Loan Documents and to the granting of Liens in
all Operating Agreements and other material contracts and leases of the Borrower
and its Subsidiaries, each of which shall be in form and substance satisfactory
to the Administrative Agent, have been obtained or made, are in full force and
effect and are not subject to any pending or, to the knowledge of the Borrower,
threatened reversal or cancellation, and the Administrative Agent and the
Lenders shall have received a certificate of an Authorized Signatory so stating.
(c) The Borrower shall certify to the Administrative Agent and
the Lenders that each of the representations and warranties in Article 4 hereof
and each other Loan Document are true and correct as of the Agreement Date and
that no Default or Event of Default then exists or is continuing or will be
caused by the Texas Acquisition.
(d) (i) There shall not exist as of the Agreement Date any
action, suit, proceeding or investigation pending against, or, to the knowledge
of the Borrower, threatened against or in any manner relating adversely to, the
Borrower, any of its Subsidiaries, any of their respective properties or the
transactions contemplated hereby, and (ii) no event shall have occurred and no
condition exist, in each case, which, in the reasonable judgment of the Required
Lenders, has had or could be expected to have a Materially Adverse Effect.
(e) The Administrative Agent shall have received evidence
reasonably satisfactory to it that the Texas Acquisition has been consummated on
substantially the terms set forth in the Texas Acquisition Agreement.
(f) The Borrower shall have paid to the Administrative Agent
for the account of each Lender the fees, expenses and other amounts due as set
forth in those letter agreements dated the Agreement Date in favor of each
Lender.
Section 3.2 Conditions Precedent to Each Advance. The obligation of
the Lenders to make, Convert or Continue each Advance on or after the Agreement
Date is subject to the fulfillment of each of the following conditions
immediately prior to or contemporaneously with such Advance:
(a) All of the representations and warranties of the Borrower
under this Agreement and the other Loan Documents (including, without
limitation, all representations and warranties with respect to the Borrower's
Subsidiaries), which, pursuant to Section 4.2 hereof, are made at and as of the
time of such Advance (except to the extent previously fulfilled in accordance
with the terms hereof and to the extent relating specifically to a specific
prior date), shall be true and correct at such time in all material respects,
both before and after giving effect to the application of the proceeds of such
Advance, and after giving effect to any updates to information provided to the
Lenders in accordance with the terms of such representations and warranties, and
no Default hereunder shall then exist or be caused thereby.
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(b) With respect to Advances which, if funded, would increase
the aggregate principal amount of the Loans outstanding hereunder, the
Administrative Agent shall have received a duly executed Request for Advance.
(c) The Administrative Agent and the Lenders shall have
received all such other certificates, reports, statements, opinions of counsel
(if such Advance is in connection with an Acquisition) or other documents as the
Administrative Agent or any Lender may reasonably request.
(d) With respect to any Advance relating to any Acquisition or
the formation of any Subsidiary which is permitted hereunder, the Administrative
Agent and the Lenders shall have received certified documents and instruments
relating to such Acquisition or such formation of a new Subsidiary as are
described in Section 5.13 hereof or otherwise required herein.
(e) (i) There shall not exist any action, suit, proceeding or
investigation pending against, or, to the knowledge of the Borrower, threatened
against or in any manner relating adversely to, the Borrower, any of its
Subsidiaries, any of their respective properties or the transactions
contemplated hereby, and (ii) no event shall have occurred and no condition
exist, in each case, which, in the reasonable judgment of the Required Lenders,
has had or could be expected to have a Materially Adverse Effect.
(f) On the date of such Advance, after giving effect to the
Advance requested, the Borrower shall be in compliance on a pro forma basis with
the covenants set forth in Sections 7.8, 7.9, 7.10, 7.11, 7.12, 7.13 and 7.14
hereof and that no Default or Event of Default shall be caused hereunder by such
Advance.
The acceptance of proceeds of any Advance which would increase the
aggregate principal amount of Loans outstanding shall be deemed to be a
representation and warranty by the Borrower as to compliance with this Section
3.2 on the date any such Loan is made.
Section 3.3 Conditions Precedent to Issuance of Letters of
Credit. The obligation of the Issuing Bank to issue each Letter of Credit
hereunder is subject to the fulfillment of each of the following conditions
immediately prior to or contemporaneously with such issuance:
(a) All of the representations and warranties of the Borrower
under this Agreement and the other Loan Documents (including, without
limitation, all representations and warranties with respect to the Borrower's
Subsidiaries), which, pursuant to Section 4.2 hereof, are made at and as of the
time of such Advance (except to the extent previously fulfilled in accordance
with the terms hereof and to the extent relating specifically to a specific
prior date), shall be true and correct at such time in all material respects,
both before and after giving effect to the issuance of the Letter of Credit, and
after giving effect to any updates to information provided to the Lenders in
accordance with the terms of such representations and warranties, and no Default
hereunder shall then exist or be caused thereby;
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(b) The Administrative Agent shall have received a duly
executed Request for Issuance of Letter of Credit;
(c) The Administrative Agent and the Lenders shall have
received all such other certificates, reports, statements, opinions of counsel
(if such Letter of Credit is in connection with an Acquisition) or other
documents as the Administrative Agent or any Lender may reasonably request;
(d) (i) There shall not exist any action, suit, proceeding or
investigation pending against, or, to the knowledge of the Borrower, threatened
against or in any manner relating adversely to, the Borrower, any of its
Subsidiaries, any of their respective properties or the transactions
contemplated hereby, and (ii) no event shall have occurred and no condition
exist, in each case, which, in the reasonable judgment of the Required Lenders,
has had or could be expected to have a Materially Adverse Effect.
(e) On the date of issuance of such Letter of Credit, after
giving effect to the Letter of Credit requested, the Borrower shall be in
compliance on a pro forma basis with the covenants set forth in Sections 7.8,
7.9, 7.10, 7.11, 7.12, 7.13 and 7.14 of this Agreement and that no Default or
Event of Default shall be caused hereunder by such Letter of Credit.
ARTICLE 4
Representations and Warranties
Section 4.1 Representations and Warranties. The Borrower hereby
agrees, represents and warrants, upon the Agreement Date, in favor of the
Administrative Agent and each Lender, that:
(a) Organization; Ownership; Power; Qualification. The
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of the State of Georgia. The Borrower has the corporate power and
authority to own its properties and to carry on its business as now being and as
proposed hereafter to be conducted. Each Subsidiary of the Borrower is a Person
duly organized, validly existing and in good standing under the laws of the
state of its incorporation or formation and has the power and authority to own
its properties and to carry on its business as now being and as proposed
hereafter to be conducted. The Borrower and its Subsidiaries are duly qualified,
in good standing and authorized to do business in each jurisdiction in which the
character of their respective properties or the nature of their respective
businesses requires such qualification or authorization, except where failure to
be so qualified, in the aggregate, could not reasonably be expected to have a
Materially Adverse Effect.
(b) Authorization; Enforceability. The Borrower has the
corporate power and has taken all necessary corporate action to authorize it to
borrow hereunder, and the Borrower has the corporate power and has taken all
necessary corporate action to execute, deliver and
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perform this Agreement and each of the other Loan Documents to which it is a
party in accordance with their respective terms, and to consummate the
transactions contemplated hereby and thereby. This Agreement has been duly
executed and delivered by the Borrower and is, and each of the other Loan
Documents to which the Borrower is party is, a legal, valid and binding
obligation of the Borrower, enforceable against the Borrower, in accordance with
its terms, subject, as to enforcement of remedies, to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity.
(c) Subsidiaries: Authorization; Enforceability. The
Borrower's Subsidiaries, and the Borrower's direct and indirect ownership
thereof as of the Agreement Date, are as set forth on Schedule 4 attached
hereto, and the Borrower has the unrestricted right to vote the issued and
outstanding Ownership Interests of the Subsidiaries shown thereon; such
Ownership Interests of such Subsidiaries have been duly authorized and issued
and are fully paid and nonassessable. Each Subsidiary of the Borrower has the
power and has taken all necessary action to authorize it to execute, deliver and
perform each of the Loan Documents to which it is a party in accordance with
their respective terms and to consummate the transactions contemplated by this
Agreement and by such Loan Documents. Each of the Loan Documents to which any
Subsidiary of the Borrower is party is a legal, valid and binding obligation of
such Subsidiary enforceable against such Subsidiary in accordance with its
terms, subject, as enforcement of remedies, to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity. The Borrower's ownership
interest in each of its Subsidiaries represents a direct or indirect controlling
interest of such Subsidiary for purposes of directing or causing the direction
of the management and policies of each Subsidiary.
(d) Compliance with Other Loan Documents and Contemplated
Transactions. The execution, delivery and performance, in accordance with their
respective terms, by the Borrower of this Agreement and the Notes, and by the
Borrower and its Subsidiaries of each of the other Loan Documents to which they
are respectively party, and the consummation of the transactions contemplated
hereby and thereby, do not and will not (i) require any consent or approval,
governmental or otherwise, not already obtained, (ii) violate any Applicable Law
respecting the Borrower or any of its Subsidiaries, (iii) conflict with, result
in a breach of, or constitute a default under the certificate or articles of
incorporation or by-laws or partnership agreements or operating agreements or
trust agreements, as the case may be, as amended, of the Borrower or of any of
its Subsidiaries, or under any material Operating Agreement, or any other
material indenture, agreement, or other instrument, to which the Borrower or any
of its Subsidiaries is a party or by which any of them or their respective
properties may be bound, including, without limitation, the Subordinated Note
Indenture, or (iv) result in or require the creation or imposition of any Lien
upon or with respect to any property now owned or hereafter acquired by the
Borrower or any of its Subsidiaries, except for Permitted Liens.
(e) Business. The Borrower, together with its Subsidiaries, is
engaged in the business of owning and operating the Stations, Newspapers, the
Porta-Phone Page Business, the Satellite Broadcasting Business and other
media-related businesses.
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(f) Licenses; Operating Agreements.
(i) Each of the Borrower and its Subsidiaries has all
requisite power and authority, material Operating Agreements and
Licenses to own and operate its properties and to carry on its
businesses as now conducted and as proposed to be conducted. Schedule 3
annexed hereto, as it may be supplemented, correctly describes each of
the Stations, the Newspapers, the Porta-Phone Page Business and the
Satellite Broadcasting Business and sets forth all of the material
Operating Agreements and Licenses of the Borrower and its Subsidiaries
and correctly sets forth the termination date, if any, of each such
Operating Agreements and License. A true, correct and complete copy of
each material Operating Agreement and License has been made available
to the Administrative Agent. Each material Operating Agreement and
License was duly and validly issued pursuant to procedures which comply
in all material respects with all requirements of Applicable Law. As of
the Agreement Date and at all times thereafter, the Borrower and its
Subsidiaries have the right to use all material Licenses required in
the ordinary course of business for all Stations, the Newspapers, the
Porta-Phone Paging Business and the Satellite Broadcasting Business,
and each such License is in full force and effect. Each of the Borrower
and it Subsidiaries has taken all material actions and performed all of
its material obligations that are necessary to maintain all material
Licenses without adverse modification or impairment. Except as shown on
Schedule 3, no event has occurred which (i) results in, or after notice
or lapse of time or both would result in, revocation, suspension,
adverse modification, non-renewal, impairment, restriction or
termination of or any order of forfeiture with respect to, any material
License or (ii) materially and adversely affects or could reasonably be
expected in the future to materially adversely affect any of the rights
of the Borrower or any of its Subsidiaries thereunder. Except as set
forth on Schedule 3, each FCC License is held by a License Sub. Except
as set forth in Schedule 3, none of the FCC Licenses requires that any
present stockholder, director, officer or employee of the Borrower or
any of its Subsidiaries remain a stockholder or employee of such
Person, or that any transfer of control of such Person must be approved
by any public or governmental body other than the FCC.
(ii) Except as shown on Schedule 3, neither the
Borrower nor any of its Subsidiaries is a party to or has knowledge of
any investigation, notice of apparent liability, violation, forfeiture
or other order or complaint issued by or before any court or regulatory
body, including the FCC, or of any other proceedings (other than
proceedings relating to the radio or television industries generally)
which could in any manner materially threaten or adversely affect the
validity or continued effectiveness of the Licenses of any such Person.
Neither the Borrower nor any of its Subsidiaries has any reason to
believe that any material Licenses listed and described in Schedule 3
will not be renewed in the ordinary course. Each of the Borrower and
its Subsidiaries, as applicable, (a) has duly filed in a timely manner
all material filings, reports, applications, documents, instruments and
information required to be filed by it under the Communication Act or
pursuant to FCC Regulations or requests of any regulatory body having
jurisdiction over
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any of its Licenses, (b) has submitted to the FCC on a timely basis all
required equal employment opportunity reports, and (c) is in compliance
in all material respects with the Communications Act, including all FCC
Regulations relating to the broadcast of television signals, all FCC
Regulations concerning the limits on the duration of advertising in
children's programming and the record keeping obligations relating to
such advertising, the Children's Television Act and all FCC Regulations
promulgated thereunder and all equal employment opportunity-related FCC
Regulations. The Borrower and its Subsidiaries maintain appropriate
public files at the Stations, the Porta-Phone Paging Business and the
Satellite Broadcasting Business in a manner that complies in all
material respects with all FCC Regulations.
(iii) The Ownership Reports filed by the Borrower and
its Subsidiaries with the FCC are true, correct and complete in all
material respects and there have been no changes in the ownership of
the Borrower or any Subsidiary of the Borrower since the filing of such
Ownership Reports other than as described in information filed with the
FCC and made available for examination by the Administrative Agent.
(g) Compliance with Law. The Borrower and its Subsidiaries are
in compliance with all Applicable Law, except where the failure to be in
compliance would not individually or in the aggregate have a Materially Adverse
Effect.
(h) Title to Assets. The Borrower and its Subsidiaries have
good, legal and marketable title to, or a valid leasehold interest in, all of
their respective material assets. None of the properties or assets of the
Borrower or any of its Subsidiaries is subject to any Liens, except for
Permitted Liens. Except for financing statements evidencing Permitted Liens, no
financing statement under the Uniform Commercial Code as in effect in any
jurisdiction and no other filing which names the Borrower or any of its
Subsidiaries as debtor or which covers or purports to cover any of the assets of
the Borrower or any of its Subsidiaries is currently effective and on file in
any state or other jurisdiction, and neither the Borrower nor any of its
Subsidiaries has signed any such financing statement or filing or any security
agreement authorizing any secured party thereunder to file any such financing
statement or filing.
(i) Litigation. Except as set forth on Schedule 5 hereto,
there is no action, suit, proceeding or investigation pending against, or, to
the knowledge of the Borrower, threatened against or in any other manner
relating adversely to, the Borrower or any of its Subsidiaries or any of their
respective properties, including, without limitation, the Licenses, in any court
or before any arbitrator of any kind or before or by any governmental body which
could reasonably be expected to have a Materially Adverse Effect. No action,
suit, proceeding or investigation (i) calls into question the validity of this
Agreement or any other Loan Document, or (ii) individually or collectively
involves the possibility of any judgment or liability not fully covered by
insurance which, if determined adversely to the Borrower or any of its
Subsidiaries, would have a Materially Adverse Effect.
(j) Taxes. All federal, state and other tax returns of the
Borrower, each of its Subsidiaries required by law to be filed have been duly
filed and all federal, state and other taxes,
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including, without limitation, withholding taxes, assessments and other
governmental charges or levies required to be paid by the Borrower or by any of
its Subsidiaries or imposed upon the Borrower or any of its Subsidiaries or any
of their respective properties, income, profits or assets, which are due and
payable, have been paid, except any such taxes (i) (A) the payment of which the
Borrower or any of its Subsidiaries is diligently contesting in good faith by
appropriate proceedings, (B) for which adequate reserves have been provided on
the books of the Borrower or the Subsidiary of the Borrower involved, and (C) as
to which no Lien other than a Permitted Lien has attached and no foreclosure,
distraint, sale or similar proceedings have been commenced, or (ii) which may
result from audits not yet conducted. The charges, accruals and reserves on the
books of the Borrower and each of its Subsidiaries in respect of taxes are, in
the reasonable judgment of the Borrower, adequate.
(k) Financial Statements; Projections.
(i) The Borrower has furnished or caused to be
furnished to the Administrative Agent and the Lenders a Form 10-K for
the Borrower and its Subsidiaries on a consolidated basis for the
fiscal year ended December 31, 1998, audited financial statements for
the fiscal year ended December 31, 1998 and unaudited for the quarter
ended June 30, 1999 and the month ended July 31, 1999, which, together
with other financial statements furnished to the Lenders subsequent to
the Agreement Date have been prepared in accordance with GAAP and
present fairly in all material respects the financial position of the
Borrower and its Subsidiaries on a consolidated and consolidating
basis, as the case may be, on and as at such dates and the results of
operations for the periods then ended (subject, in the case of
unaudited financial statements, to normal year-end and audit
adjustments). None of the Borrower or any of its Subsidiaries has any
material liabilities, contingent or otherwise, other than as disclosed
in the financial statements most recently delivered on the Agreement
Date or pursuant to Section 6.1, 6.2 or 6.3 hereof, and there are no
material unrealized losses of the Borrower and its Subsidiaries taken
as a whole and no material anticipated losses of the Borrower and its
Subsidiaries taken as a whole other than those which have been
previously disclosed in writing to the Administrative Agent and the
Lenders and identified as such.
(ii) The Borrower has delivered to the Administrative
Agent and the Lenders projections for fiscal years 1999 through 2005.
Such projections assume the consummation of the transactions
contemplated in the Texas Acquisition Agreement, were prepared by the
Borrower in good faith on the basis of assumptions the Borrower
believes were reasonable in light of the conditions existing at the
time of preparation thereof and remain reasonable as of the date
hereof, and as of the date hereof no facts which are known to the
Borrower which the Borrower believes would cause a material adverse
change in such projections.
(l) No Material Adverse Change. There has occurred no event
since December 31, 1998 which has or which could reasonably be expected to have
a Materially Adverse Effect.
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(m) ERISA. The Borrower and each of its Subsidiaries and each
of their respective Plans are in material compliance with ERISA and the Code,
and neither the Borrower nor any of its ERISA Affiliates, including its
Subsidiaries, has incurred any material accumulated funding deficiency with
respect to any such Plan within the meaning of ERISA or the Code. Neither the
Borrower nor any of its Subsidiaries has made any promises of retirement or
other benefits to employees, except as set forth in the Plans, in written
agreements with such employees, or in the Borrower's employee handbook and
memoranda to employees. Neither the Borrower nor any of its ERISA Affiliates,
including its Subsidiaries, has incurred any material liability to PBGC in
connection with any such Plan. The assets of each such Plan which is subject to
Title IV of ERISA are sufficient to provide the benefits under such Plan, the
payment of which PBGC would guarantee if such Plan were terminated, and such
assets are also sufficient to provide all other "benefit liabilities" (within
the meaning of Section 4041 of ERISA) due under the Plan upon termination. No
Reportable Event has occurred and is continuing with respect to any such Plan.
No such Plan or trust created thereunder, or party in interest (as defined in
Section 3(14) of ERISA), or any fiduciary (as defined in Section 3(21) of
ERISA), has engaged in a "prohibited transaction" (as such term is defined in
Section 406 of ERISA or Section 4975 of the Code) which would subject such Plan
or any other Plan of the Borrower or any of its Subsidiaries, any trust created
thereunder, or any such party in interest or fiduciary, or any party dealing
with any such Plan or any such trust, to the tax or penalty on "prohibited
transactions" imposed by Section 502 of ERISA or Section 4975 of the Code.
Neither the Borrower nor any of its ERISA Affiliates, including its
Subsidiaries, is or has been obligated to make any payment to a Multiemployer
Plan.
(n) Compliance with Regulations T, U and X. Neither the
Borrower nor any of its Subsidiaries is engaged principally or as one of its
important activities in the business of extending credit for the purpose of
purchasing or carrying, and neither the Borrower nor any of its Subsidiaries
owns or presently intends to acquire, any "margin security" or "margin stock"
(the "margin stock") as defined in Regulations T, U, and X (12 C.F.R. Parts 220,
221 and 224) of the Board of Governors of the Federal Reserve System (the "Fed
Regulations"). None of the proceeds of the Loans will be used, directly or
indirectly, for the purpose of purchasing or carrying any margin stock or for
the purpose of reducing or retiring any Indebtedness which was originally
incurred to purchase or carry margin stock or for any other purpose which might
constitute this transaction a "purpose credit" within the meaning of said
Regulations. The Borrower has not taken, caused or authorized to be taken, and
will not take any action which might cause this Agreement or the Notes to
violate any Fed Regulation or any other regulation of the Board of Governors of
the Federal Reserve System or to violate the Securities Exchange Act of 1934, in
each case as now in effect or as the same may hereafter be in effect. If so
requested by the Administrative Agent, the Borrower will furnish the
Administrative Agent with (i) a statement or statements in conformity with the
requirements of Federal Reserve Forms G-3 and/or U-1 referred to in Regulation U
of said Board of Governors and (ii) other documents evidencing its compliance
with the margin regulations, reasonably requested by the Administrative Agent.
Neither the making of the Loans nor the use of proceeds thereof will violate, or
be inconsistent with, the provisions of any Fed Regulation.
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(o) Investment Company Act. Neither the Borrower nor any of
its Subsidiaries is required to register under the provisions of the Investment
Company Act of 1940, as amended, and neither the entering into or performance by
the Borrower and its Subsidiaries of this Agreement and the Loan Documents nor
the issuance of the Notes violates any provision of such Act or requires any
consent, approval or authorization of, or registration with, the Securities and
Exchange Commission or any other governmental or public body or authority
pursuant to any provisions of such Act.
(p) Governmental Regulation. Neither the Borrower nor any of
its Subsidiaries is required to obtain any consent, approval, authorization,
permit or license which has not already been obtained from, or effect any filing
or registration which has not already been effected with, any federal, state or
local regulatory authority in connection with the execution and delivery of this
Agreement or any other Loan Document. Neither the Borrower nor any of its
Subsidiaries is required to obtain any consent, approval, authorization, permit
or license which has not already been obtained from, or effect any filing or
registration which has not already been effected with, any federal, state or
local regulatory authority in connection with the performance, in accordance
with their respective terms, of this Agreement or any other Loan Document, other
than filing of appropriate Uniform Commercial Code financing statements and
mortgages.
(q) Absence of Default, Etc. The Borrower and its Subsidiaries
are in material compliance in all respects with all of the provisions of their
respective partnership agreements, operating agreements, certificates or
articles of incorporation and by-laws, as the case may be, and no event has
occurred or failed to occur (including, without limitation, any matter which
could create a Default hereunder by cross-default) which has not been remedied
or waived, the occurrence or non-occurrence of which constitutes, (i) a Default
or (ii) a material default by the Borrower or any of its Subsidiaries under any
indenture, agreement or other instrument relating to Indebtedness of the
Borrower or any of its Subsidiaries in the amount of $1,000,000.00 or more in
the aggregate, any material license, or any judgment, decree or order to which
the Borrower or any of its Subsidiaries is a party or by which the Borrower or
any of its Subsidiaries or any of their respective properties may be bound or
affected.
(r) Accuracy and Completeness of Information. All information,
reports, prospectuses and other papers and data relating to the Borrower or any
of its Subsidiaries and furnished by or on behalf of the Borrower or any of its
Subsidiaries to the Administrative Agent or the Lenders, taken as a whole, were,
at the time furnished, true, complete and correct in all material respects to
the extent necessary to give the Administrative Agent and the Lenders true and
accurate knowledge of the subject matter. Any projections and pro forma
financial information contained in such materials are based upon good faith
estimates and assumptions believed by the Borrower to be reasonable and
attainable at the time made, it being recognized by the Lenders that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ
from the projected results.
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(s) Agreements with Affiliates. Except for agreements or
arrangements with Affiliates wherein the Borrower or one or more of its
Subsidiaries provides services to such Affiliates for fair consideration or
which are set forth on Schedule 6 attached hereto, neither the Borrower nor any
of its Subsidiaries has (i) any written agreements or binding arrangements of
any kind with any Affiliate or (ii) any management or consulting agreements of
any kind with any Affiliate.
(t) Payment of Wages. The Borrower and each of its
Subsidiaries are in compliance with the Fair Labor Standards Act, as amended, in
all material respects, and to the knowledge of the Borrower and each of its
Subsidiaries, such Persons have paid all minimum and overtime wages required by
law to be paid to their respective employees.
(u) Priority. The Security Interest is a valid and perfected
first priority security interest in the Collateral in favor of the
Administrative Agent, for the benefit of itself and the Lenders, securing, in
accordance with the terms of the Security Documents, the Obligations, and the
Collateral is subject to no Liens other than Permitted Liens. The Liens created
by the Security Documents are enforceable as security for the Obligations in
accordance with their terms with respect to the Collateral subject, as to
enforcement of remedies, to the following qualifications: (i) an order of
specific performance and an injunction are discretionary remedies and, in
particular, may not be available where damages are considered an adequate remedy
at law, and (ii) enforcement may be limited by bankruptcy, insolvency,
liquidation, reorganization, reconstruction and other similar laws affecting
enforcement of creditors' rights generally (insofar as any such law relates to
the bankruptcy, insolvency or similar event of the Borrower or any of its
Subsidiaries, as the case may be).
(v) Indebtedness. Except as described on Schedule 7 attached
hereto none of the Borrower nor any of its Subsidiaries has outstanding, as of
the Agreement Date, and after giving effect to the initial Advances hereunder on
the Agreement Date, any Indebtedness.
(w) Solvency. As of the Agreement Date and after giving effect
to the transactions contemplated by the Loan Documents (i) the property of the
Borrower, at a fair valuation, will exceed its debt; (ii) the capital of the
Parent and the Borrower will not be unreasonably small to conduct its business;
(iii) the Borrower will not have incurred debts, or have intended to incur
debts, beyond its ability to pay such debts as they mature; and (iv) the present
fair salable value of the assets of the Borrower will be greater than the amount
that will be required to pay its probable liabilities (including debts) as they
become absolute and matured. For purposes of this Section 4.1(w), "debt" means
any liability on a claim, and "claim" means (i) the right to payment, whether or
not such right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, undisputed, legal, equitable, secured or
unsecured, or (ii) the right to an equitable remedy for breach of performance if
such breach gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured,
undisputed, secured or unsecured.
(x) Patents, Trademarks, Franchises, etc. The Borrower and
each of its Subsidiaries owns, possesses, or has the right to use all necessary
patents, trademarks, trademark
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rights, trade names, trade name rights, service marks, copyrights and
franchises, and rights with respect thereof, necessary to conduct its respective
business as now conducted, without known conflict with any patent, trademark,
trade name, service xxxx, franchise, or copyright of any other Person, and in
each case, subject to no mortgage, pledge, lien, lease, encumbrance, charge,
security interest, title retention agreement, or option. All such patents,
trademarks, trademark rights, trade names, trade name rights, service marks,
copyrights, and franchises are listed as of the Agreement Date on Schedule 8
attached hereto and are in full force and effect, the holder thereof is in full
compliance in all material respects with all of the provisions thereof, and no
such asset or agreement is subject to any pending or, to the best of the
Borrower's knowledge, threatened attack or revocation.
(y) Collective Bargaining. None of the employees of the
Borrower or any of its Subsidiaries is a party to any collective bargaining
agreement with the Parent, the Borrower or any of its Subsidiaries except as set
forth on Schedule 9 attached hereto, and, to the best knowledge of the Borrower
and its officers, there are no material grievances, disputes, or controversies
with any union or any other organization of the employees of the Borrower or any
of its Subsidiaries or threats of strikes, work stoppages, or any asserted
pending demands for collective bargaining by any union or other organization
except as set forth on Schedule 9 attached hereto.
(z) Year 2000 Compliance. The Borrower has (i) initiated a
review and assessment of all areas within the Borrower's and each of its
Subsidiaries' respective business and operations (including those affected by
suppliers, vendors and customers) that could be adversely affected by the "Year
2000 Problem" (that is, the risk that computer applications used by the Borrower
or any of its Subsidiaries (or suppliers, vendors and customers) may be unable
to recognize and perform properly date-sensitive functions involving certain
dates prior to and any date on or after December 31, 1999), (ii) developed a
plan and timeline for addressing the Year 2000 Problem on a timely basis, and
(iii) to date, implemented that plan in accordance with that timetable. Based on
the foregoing, the Borrower believes that all computer applications (including
those of its suppliers, vendors and customers) that are material to the
Borrower's or any of its Subsidiaries' business and operations are reasonably
expected on a timely basis to be able to perform properly date-sensitive
functions for all dates before, on and after January 1, 2000 (that is, be "Year
2000 Compliant"), except to the extent that a failure to do so could not
reasonably be expected to have a Materially Adverse Effect.
(aa) Environmental Protection.
(i) Except as set forth in Schedule 10 attached
hereto, neither the Borrower nor any of its Subsidiaries nor any of
their respective Real Property or operations are subject to any
outstanding written order, consent decree or settlement agreement with
any Person relating to (A) any Environmental Law, (B) any Environmental
Claim or (C) any Hazardous Materials Activity;
(ii) Neither the Borrower nor any of its Subsidiaries
has received any letter or request for information under Section 104 of
the Comprehensive Environmental
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Response, Compensation and Liability Act (42 U.S.C. ss. 9604) or any
comparable state law.
(iii) There are no and, to the Borrower's knowledge,
have been no conditions, occurrences, or Hazardous Materials Activities
which could reasonably be expected to form the basis of an
Environmental Claim against the Borrower or any of its Subsidiaries
that, individually or in the aggregate, could reasonably be expected to
have a Materially Adverse Effect;
(iv) Neither the Borrower nor any of its
Subsidiaries, nor, to the Borrower's knowledge, any predecessor of the
Borrower or any of its Subsidiaries has filed any notice under any
Environmental Law indicating past or present treatment of Hazardous
Materials on any Real Property, and neither the Borrower nor any of its
Subsidiaries' operations involves the generation, transportation,
treatment, storage or disposal of hazardous waste (other than Hazardous
Materials used in the ordinary course of business, the use of which is
immaterial and not reasonably likely to materially adversely affect the
Real Property or have a Materially Adverse Effect), as defined under 40
C.F.R. Parts 260-270 or any state equivalent; and
(v) Compliance with all current requirements
pursuant to or under Environmental Laws will not, individually or in
the aggregate, have a reasonable possibility of giving rise to a
Materially Adverse Effect.
Notwithstanding anything in this Section 4.1(aa) to the contrary, no
event or condition has occurred or is occurring with respect to the Borrower or
any of its Subsidiaries relating to any Environmental Law, any release of
Hazardous Materials, or any Hazardous Materials Activity which individually or
in the aggregate has had or could reasonably be expected to have a Materially
Adverse Effect.
Section 4.2 Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement and any other Loan
Document shall be deemed to be made, and shall be true and correct in all
material respects, at and as of the Agreement Date and on the date of the
making, Continuation or Conversion of each Advance or issuance of Letter of
Credit, except to the extent relating specifically to the Agreement Date. All
representations and warranties made under this Agreement and the other Loan
Documents shall survive, and not be waived by, the execution hereof by the
Lenders and the Administrative Agent, any investigation or inquiry by any Lender
or the Administrative Agent, or the making, Continuation or Conversion of any
Advance under this Agreement.
ARTICLE 5
General Covenants
So long as any of the Obligations is outstanding and unpaid or the
Lenders have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or
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can be fulfilled), and unless the Required Lenders, or such greater number of
Lenders as may be expressly provided herein, shall otherwise consent in writing:
Section 5.1 Preservation of Existence and Similar Matters. Except as
permitted under Section 7.4 hereof, the Borrower will, and will cause each of
its Subsidiaries to:
(a) preserve and maintain its existence, and its material
rights, franchises, Licenses and privileges; and
(b) qualify and remain qualified and authorized to do business
in each jurisdiction in which the character of its properties or the nature of
its business requires such qualification or authorization, except for such
failure to so qualify and be so authorized as could not reasonably be expected
to have a Materially Adverse Effect.
Section 5.2 Business; Compliance with Applicable Law. The Borrower
will, and will cause each of its Subsidiaries to, (a) engage in the business of
owning and operating Stations, Newspapers, the Porta-Phone Paging Business, the
Satellite Broadcasting Business and other media-related businesses, and (b)
comply in all material respects with the requirements of all Applicable Law.
Section 5.3 Maintenance of Properties. The Borrower will, and will
cause each of its Subsidiaries to, maintain or cause to be maintained in the
ordinary course of business in good repair, working order and condition
(reasonable wear and tear excepted) all properties used in their respective
businesses (whether owned or held under lease), other than obsolete equipment or
unused assets and from time to time make or cause to be made all needed and
appropriate repairs, renewals, replacements, additions, betterments and
improvements thereto.
Section 5.4 Accounting Methods and Financial Records. The Borrower
will, and will cause each of its Subsidiaries on a consolidated and
consolidating basis to, maintain a system of accounting established and
administered in accordance with GAAP, keep adequate records and books of account
in which complete entries will be made in accordance with GAAP and reflecting
all transactions required to be reflected by GAAP and keep accurate and complete
records of their respective properties and assets. The Borrower and its
Subsidiaries will maintain a fiscal year ending on December 31st.
Section 5.5 Insurance. The Borrower will, and will cause each of its
Subsidiaries to:
(a) maintain insurance, including, without limitation,
business interruption coverage and public liability coverage insurance from
responsible companies in such amounts and against such risks to the Borrower and
each of its Subsidiaries as is prudent for similarly situated companies engaged
in the television or satellite broadcast, portable telephone paging, newspaper
or other media related industry, as applicable, and as is reasonably acceptable
to the Administrative Agent;
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(b) keep their respective assets insured by insurers on terms
and in a manner reasonably acceptable to the Administrative Agent against loss
or damage by fire, theft, burglary, loss in transit, explosions and hazards
insured against by extended coverage, in amounts which are prudent for companies
in similarly situated industries and reasonably satisfactory to the
Administrative Agent, all premiums thereon to be paid by the Borrower and its
Subsidiaries; and
(c) require that each insurance policy provide for at least
thirty (30) days' prior written notice to the Administrative Agent of any
termination of or proposed cancellation or nonrenewal of such policy, and name
the Administrative Agent as additional named lender loss payee and, as
appropriate, additional insured, to the extent of the Obligations.
In addition to the foregoing, in the event that any insurer distributes
insurance proceeds, a condemnation award, or any other disbursement in
connection with any of the foregoing insurance policies, the Administrative
Agent is authorized to collect such distribution and, if received by the
Borrower or any of its Subsidiaries, such distribution shall be paid over to the
Administrative Agent; provided that all such proceeds shall be paid over to the
Borrower unless an Event of Default has occurred and is continuing. Any such
distribution shall be applied to prepay the Loans as set forth in Section
2.7(b)(iii) hereof.
Section 5.6 Payment of Taxes and Claims. The Borrower will, and will
cause each of its Subsidiaries to, pay and discharge all taxes, including,
without limitation, withholding taxes, assessments and governmental charges or
levies required to be paid by them or imposed upon them or their income or
profits or upon any properties belonging to them, prior to the date on which
penalties attach thereto, and all lawful claims for labor, materials and
supplies which, if unpaid, might become a Lien or charge upon any of their
properties; provided, however, except that no such tax, assessment, charge, levy
or claim need be paid which is being diligently contested in good faith by
appropriate proceedings and for which adequate reserves shall have been set
aside on the appropriate books, but only so long as such tax, assessment,
charge, levy or claim does not become a Lien or charge other than a Permitted
Lien and no foreclosure, distraint, sale or similar proceedings shall have been
commenced. The Borrower will, and will cause each of its Subsidiaries to, timely
file all information returns required by federal, state or local tax
authorities.
Section 5.7 Compliance with ERISA.
(a) The Borrower will, and will cause its Subsidiaries to,
make all contributions to any Employee Pension Plan when such contributions are
due and not incur any "accumulated funding deficiency" within the meaning of
Section 412(a) of the Code, whether or not waived, and will otherwise comply
with the requirements of the Code and ERISA with respect to the operation of all
Plans, except to the extent that the failure to so comply could not have a
Materially Adverse Effect.
(b) The Borrower will furnish to Administrative Agent (i)
within thirty (30) days after any officer of the Borrower obtains knowledge that
a "prohibited transaction" (within the meaning of Section 406 of ERISA or
Section 4975 of the Code) has occurred with respect to
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any material Plan of the Borrower or its ERISA Affiliates, including its
Subsidiaries, that any Reportable Event has occurred with respect to any
Employee Pension Plan or that PBGC has instituted or will institute proceedings
under Title IV of ERISA to terminate any Employee Pension Plan or to appoint a
trustee to administer any Employee Pension Plan, a statement setting forth the
details as to such prohibited transaction, Reportable Event or termination or
appointment proceedings and the action which it (or any other Employee Pension
Plan sponsor if other than the Borrower) proposes to take with respect thereto,
together with a copy of the notice of such Reportable Event given to PBGC if a
copy of such notice is available to the Borrower, any of its Subsidiaries or any
of its ERISA Affiliates, (ii) promptly after receipt thereof, a copy of any
notice the Parent, the Borrower, any of its Subsidiaries or any of its ERISA
Affiliates or the sponsor of any Plan receives from PBGC, or the Internal
Revenue Service or the Department of Labor which sets forth or proposes any
action or determination with respect to such Plan, (iii) promptly after the
filing thereof, any annual report required to be filed pursuant to ERISA in
connection with each Plan maintained by the Borrower or any of its ERISA
Affiliates, including the Subsidiaries, and (iv) promptly upon the
Administrative Agent's request therefor, such additional information concerning
any such Plan as may be reasonably requested by the Administrative Agent.
(c) The Borrower will promptly notify the Administrative Agent
of any excise taxes which have been assessed or which the Borrower, any of its
Subsidiaries or any of its ERISA Affiliates has reason to believe may be
assessed against the Borrower, any of its Subsidiaries or any of its ERISA
Affiliates by the Internal Revenue Service or the Department of Labor with
respect to any Plan of the Borrower or its ERISA Affiliates, including its
Subsidiaries.
(d) Within the time required for notice to the PBGC under
Section 302(f)(4)(A) of ERISA, the Borrower will notify the Administrative Agent
of any lien arising under Section 302(f) of ERISA in favor of any Plan of the
Borrower or its ERISA Affiliates, including its Subsidiaries.
(e) The Borrower will not, and will not permit any of its
Subsidiaries or any of its ERISA Affiliates to take any of the following actions
or permit any of the following events to occur if such action or event together
with all other such actions or events would subject the Parent, the Borrower,
any of its Subsidiaries, or any of its ERISA Affiliates to any tax, penalty, or
other liabilities which could have a Materially Adverse Effect:
(i) engage in any transaction in connection with
which the Borrower, any of its Subsidiaries or any ERISA Affiliate
could be subject to either a civil penalty assessed pursuant to Section
502(i) of ERISA or a tax imposed by Section 4975 of the Code;
(ii) terminate any Employee Pension Plan in a manner,
or take any other action, which could result in any liability of the
Borrower, any of its Subsidiaries or any ERISA Affiliate to the PBGC;
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(iii) fail to make full payment when due of all
amounts which, under the provisions of any Plan, the Borrower, any of
its Subsidiaries or any ERISA Affiliate is required to pay as
contributions thereto, or permit to exist any accumulated funding
deficiency within the meaning of Section 412(a) of the Code, whether or
not waived, with respect to any Employee Pension Plan; or
(iv) permit the present value of all benefit
liabilities under all Employee Pension Plans which are subject to Title
IV of ERISA to exceed the present value of the assets of such Plans
allocable to such benefit liabilities (within the meaning of Section
4041 of ERISA), except as may be permitted under actuarial funding
standards adopted in accordance with Section 412 of the Code.
Section 5.8 Visits and Inspections. The Borrower will, and will cause
each of its Subsidiaries to, permit representatives of the Administrative Agent
and any of the Lenders, prior to the occurrence of an Event of Default upon
reasonable notice and at any time upon the occurrence and during the continuance
of an Event of Default, to (i) visit and inspect the properties of the Borrower
or any of its Subsidiaries during business hours, (ii) inspect and make extracts
from and copies of their respective books and records, and (iii) discuss with
their respective principal officers their respective businesses, assets,
liabilities, financial positions, results of operations and business prospects.
The Borrower and each of its Subsidiaries will also permit representatives of
the Administrative Agent and any of the Lenders to discuss with their respective
accountants the Borrower's and its Subsidiaries' businesses, assets,
liabilities, financial positions, results of operations and business prospects.
Section 5.9 Payment of Indebtedness; Loans. Subject to any provisions
herein or in any other Loan Document, the Borrower will, and will cause each of
its Subsidiaries to, pay any and all of their respective Indebtedness when and
as it becomes due, other than amounts diligently disputed in good faith and for
which adequate reserves have been set aside in accordance with GAAP.
Section 5.10 Use of Proceeds. The Borrower will use the aggregate
proceeds of all Advances under the Loans directly or indirectly: (a) to
refinance Indebtedness under the Prior Loan Agreement; (b) to finance the Texas
Acquisition; and (c) to the extent permitted hereunder, for working capital
needs, Capital Expenditures, Acquisitions, Investments, Restricted Payments,
Restricted Purchases and other general corporate purposes of the Borrower and
its Subsidiaries which do not otherwise conflict with this Section 5.10
(including, without limitation, the payment of the fees and expenses incurred in
connection with the execution and delivery of this Agreement). No proceeds of
Advances hereunder shall be used for the purchase or carrying or the extension
of credit for the purpose of purchasing or carrying, any margin stock within the
meaning of the Fed Regulations.
Section 5.11 Indemnity. The Borrower, for itself and on behalf of each
of its Subsidiaries, agrees to indemnify and hold harmless each Lender, the
Administrative Agent, and each of their respective affiliates, employees,
representatives, shareholders, officers and directors (any of the foregoing
shall be an "Indemnitee") from and against any and all claims, obligations,
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judgments, suits, liabilities, losses, damages, penalties, actions, reasonable
attorneys' fees and expenses and demands by any party, including, without
limitation, the costs of investigating and defending such claims, whether or not
the Borrower, any Subsidiary of the Borrower or the Person seeking
indemnification is the prevailing party: (a) resulting from any breach or
alleged breach by the Borrower or any Subsidiary of the Borrower of any
representation or warranty made under any Loan Document; or (b) otherwise
arising out of (i) the Commitments, the Loans or otherwise under this Agreement,
any Loan Document or any transaction contemplated hereby or thereby, including,
without limitation, the use of the proceeds of Loans hereunder in any fashion by
the Borrower or the performance of their respective obligations under the Loan
Documents by the Borrower or any of its Subsidiaries, (ii) allegations of any
participation by the Lenders and the Administrative Agent, or any of them, in
the affairs of the Borrower or any of its Subsidiaries, or allegations that any
of them has any joint liability with the Borrower or any of its Subsidiaries for
any reason, (iii) any claims against the Lenders and the Administrative Agent,
or any of them, by any shareholder or other investor in or lender to the
Borrower or any of its Subsidiaries, by any brokers or finders or investment
advisers or investment bankers retained by the Borrower or by any other third
party, arising out of the Commitments or otherwise under this Agreement; or (c)
in connection with taxes (not including federal or state income or franchise
taxes or other taxes based solely upon the revenues or income of such Persons),
fees and other charges payable in connection with the Loans, or the execution,
delivery and enforcement of this Agreement, the Security Documents, the other
Loan Documents and any amendments thereto or waivers of any of the provisions
thereof; unless the Person seeking indemnification hereunder is determined in
such case to have acted with gross negligence or willful misconduct, in any
case, by a final, non-appealable judicial order. The obligations of the Borrower
under this Section 5.11 are in addition to, and shall not otherwise limit, any
liabilities which the Borrower might otherwise have in connection with any
warranties or similar obligations of the Borrower in any other Loan Document.
Section 5.12 Interest Rate Hedging. Within sixty (60) days immediately
following the Agreement Date, and at all times thereafter, the Borrower shall at
all times maintain one (1) or more Interest Rate Hedge Agreements, or otherwise
fix the interest rate, with respect to the Borrower's interest obligations on an
aggregate principal amount of not less than fifty percent (50%) of Total Debt
outstanding from time to time as determined in a manner satisfactory to the
Administrative Agent. Such Interest Rate Hedge Agreements shall provide interest
rate protection in conformity with International Swap Dealers Association
standards and for a period averaging at least eighteen (18) months from the date
of such Interest Rate Hedge Agreements across all such Interest Rate Hedge
Agreements or, if earlier, until the Maturity Date on terms acceptable to the
Administrative Agent, such terms to include consideration of the
creditworthiness of the other party to the proposed Interest Rate Hedge
Agreement. All Obligations of the Borrower to the Administrative Agent or any of
the Lenders or any of their Affiliates pursuant to any Interest Rate Hedge
Agreement permitted hereunder and all Liens granted to secure such Obligations
shall rank pari passu with all other Obligations and Liens securing such other
Obligations; and any Interest Rate Hedge Agreement between the Borrower and any
other Person shall be unsecured.
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Section 5.13 Covenants Regarding Formation of Subsidiaries and
Acquisitions; Partnership, Subsidiaries. At the time of (i) any Acquisition
permitted hereunder, (ii) the purchase by the Borrower or any of its
Subsidiaries of any interests in any Subsidiary of the Borrower, or (iii) the
formation of any new Subsidiary of the Borrower or any of its Subsidiaries which
is permitted under this Agreement, the Borrower will, and will cause its
Subsidiaries, as appropriate, to: (a) provide to the Administrative Agent an
executed Subsidiary Security Agreement for any new Subsidiary, together with
appropriate Uniform Commercial Code financing statements, as well as an executed
Subsidiary Guaranty for such new Subsidiary, which shall constitute both
Security Documents and Loan Documents for purposes of this Agreement, as well as
a loan certificate for such new Subsidiary, substantially in the form of Exhibit
K-2 attached hereto, together with appropriate attachments; (b) pledge to the
Administrative Agent all of the Ownership Interests of such Subsidiary or Person
which is acquired or formed, beneficially owned by the Borrower or any of its
Subsidiaries, as the case may be, as additional Collateral for the Obligations
to be held by the Administrative Agent in accordance with the terms of the
Borrower Pledge Agreement, or a new Subsidiary Pledge Agreement and execute and
deliver to the Administrative Agent all such documentation for such pledge as,
in the reasonable opinion of the Administrative Agent, is appropriate; (c) with
respect to any Real Property acquired or owned by any new Subsidiary, provide to
the Administrative Agent a Mortgage, title insurance policy, Phase I
environmental audit or such other documentation reasonably satisfactory to the
Administrative Agent, which in its reasonable opinion is appropriate with
respect thereto; and (d) provide revised financial projections for the remainder
of the fiscal year and for each subsequent year until the Maturity Date which
reflect such Acquisition or formation, certified by the chief financial officer
of the Borrower, together with a statement by such Person that no Default or
Event of Default exists or would be caused by such Acquisition or formation, and
all other documentation, including one or more opinions of counsel, which are
satisfactory to the Administrative Agent and which in its opinion is appropriate
with respect to such Acquisition or formation. Any document, agreement or
instrument executed or issued pursuant to this Section 5.13 shall be a "Loan
Document" for purposes of this Agreement.
Section 5.14 Payment of Wages. The Borrower will, and will cause each
of its Subsidiaries to, at all times comply in all material respects, with the
material requirements of the Fair Labor Standards Act, as amended, including,
without limitation, the provisions of such Act relating to the payment of
minimum and overtime wages as the same may become due from time to time.
Section 5.15 Further Assurances. The Borrower will promptly cure, or
cause to be cured, defects in the creation and issuance of any of the Notes and
the execution and delivery of the Loan Documents (including this Agreement),
resulting from any acts or failure to act by the Borrower or any of the its
Subsidiaries or any employee or officer thereof. The Borrower, at its expense,
will promptly execute and deliver to the Administrative Agent and the Lenders,
or cause to be executed and delivered to the Administrative Agent and the
Lenders, all such other and further documents, agreements and instruments in
compliance with or accomplishment of the covenants and agreements of the
Borrower and its Subsidiaries in the Loan Documents, including, without
limitation, this Agreement, or to correct any omissions in the Loan Documents,
or more fully to state the obligations set out herein or in any of the Loan
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Documents, or to obtain any consents, all as may be necessary or appropriate in
connection therewith and as may be reasonably requested.
Section 5.16 License Subs. At the time of any Acquisition permitted
hereunder, the Borrower shall cause each of the FCC Licenses being acquired by
the Borrower or any of its Subsidiaries to be transferred to one or more License
Subs, each of which License Subs shall have as its sole asset or assets the FCC
Licenses of the Borrower or any of its Subsidiaries and a management agreement
with the Borrower and such of its Subsidiaries subject to such FCC License or
FCC Licenses, such that from and after such applicable date neither the Borrower
nor its Subsidiaries (other than License Subs) shall hold any FCC Licenses other
than through one or more duly created and existing License Subs. The Borrower
shall not permit the License Subs to have any business activities, operations,
assets, Indebtedness, Guaranties or Liens (other than holding FCC Licenses and
owning the Ownership Interests of other License Subs, and other than pursuant to
a Subsidiary Guaranty and Subsidiary Security Agreement issued in connection
herewith or any agreement referred to in the preceding sentence). Promptly after
the transfer of the FCC Licenses to the License Subs, the Borrower shall provide
to the Administrative Agent copies of any required consents to such transfer
from the FCC and any other governmental authority, together with a certificate
of an Authorized Signatory stating that all Necessary Authorizations relating to
such transfer have been obtained or made, are in full force and effect and are
not subject to any pending or threatened reversal or cancellation.
Section 5.17 Year 2000 Compliance. The Borrower will, and will cause
each of its Subsidiaries to, promptly notify the Administrative Agent in the
event that the Borrower or any of its Subsidiaries discovers or determines that
any computer application (including those of its suppliers, vendors, and
customers) that is material to the Borrower's or any of its Subsidiaries'
businesses and operations will not be Year 2000 Compliant, except to the extent
that such failure could not reasonably be expected to have a Materially Adverse
Effect.
Section 5.18 Maintenance of Network Affiliations; Operating
Agreements. The Borrower will, and will cause each of its Subsidiaries to,
maintain a network affiliation with ABC, CBS, NBC, FOX or other network
reasonably satisfactory to the Required Lenders at all times for each Station.
The Borrower will, and will cause each of its Subsidiaries to maintain, and not
breach or violate, any and all Operating Agreements and other material
contracts and rights necessary to operate the Stations, the Newspapers, the
Porta-Phone Paging Business, the Satellite Broadcasting Business and its other
media-related businesses in all material respects.
Section 5.19 Ownership Reports. The Borrower will file Ownership
Reports for any Station acquired after the Agreement Date (reflecting such
Acquisition by the Borrower) with the FCC within thirty (30) days after the date
of the consummation of such Acquisition.
Section 5.20 Environmental Compliance and Indemnity.
(a) The Borrower will, and will cause each of its Subsidiaries
to, comply in all material respects with all Environmental Laws, including,
without limitation, all Environmental
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Laws in jurisdictions in which the Borrower or any of its Subsidiaries owns or
operates a facility or site, arranges for disposal or treatment of Hazardous
Materials, solid waste or other wastes, accepts for transport any Hazardous
Materials, solid wastes or other wastes or holds any interest in Real Property
or otherwise. Neither the Borrower nor any of its Subsidiaries shall cause or
allow the release of Hazardous Materials, solid waste or other wastes on, under
or to any Real Property in which the Borrower or such Subsidiary holds any
interest or performs any of its operations, in material violation of any
Environmental Law. The Borrower shall notify the Lenders promptly after its
receipt of notice thereof, of any Environmental Claim which the Borrower
receives involving any potential or actual material liability of the Borrower
or any of its Subsidiaries arising in connection with any noncompliance with or
violation of the requirements of any Environmental Law or a material Release or
threatened Release of any Hazardous Materials, solid waste or other waste into
the environment. The Borrower shall promptly notify the Lenders (i) of any
material release of Hazardous Material on, under or from the Real Property in
which the Borrower or any of its Subsidiaries holds or has held an interest,
upon the Borrower's learning thereof by receipt of notice that the Borrower or
any of its Subsidiaries is or may be liable to any Person as a result of such
Release or that the Borrower or such Subsidiary has been identified as
potentially responsible for, or is subject to investigation by any governmental
authority relating to, such Release, and (ii) of the commencement or threat or
any judicial or administrative proceeding alleging a violation of any
Environmental Laws.
(b) If the Administrative Agent at any time has a reasonable
basis to believe that there may be a violation of any Environmental Law by, or
any liability arising thereunder of, the Borrower or any of its Subsidiaries or
related to any real property owned, leased or operated by the Borrower or any of
its Subsidiaries or real property adjacent to such Real Property, which
violation or liability could reasonably be expected to have a Materially Adverse
Effect, then the Borrower shall, upon request from the Administrative Agent,
provide the Administrative Agent with such reports, certificates, engineering
studies or other written material or data as the Administrative Agent may
require so as to satisfy the Administrative Agent that the Borrower or such
Subsidiary is in material compliance with all applicable Environmental Laws.
(c) The Borrower shall defend, indemnify and hold the
Administrative Agent and the Lenders and their respective officers, directors,
shareholders, employees, agents, affiliates, successors and assigns harmless
from and against all costs, expenses, claims, demands, damages, penalties and
liabilities of every kind or nature whatsoever incurred by them (including,
without limitation, reasonable attorney fees and expenses) arising out of,
resulting from or relating to (i) the noncompliance of the Borrower, any of its
Subsidiaries or any property owned or leased by the Borrower or any of its
Subsidiaries with any Environmental Law, or (ii) any investigatory or remedial
action involving the Borrower, any of its Subsidiaries or any property owned or
leased by the Borrower or any of its Subsidiaries and required by Environmental
Laws or by order of any governmental authority having jurisdiction under any
Environmental Laws, or (iii) any injury to any person whatsoever or damage to
any property arising out of, in connection with or in any way relating to the
breach of any of the environmental warranties or covenants in this Agreement or
any facts or circumstances that cause any of the environmental representations
or warranties contained in this Agreement to cease to be true, or (iv) the
existence, treatment, storage, Release, generation, transportation,
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removal, manufacture or other handling of any Hazardous Material on or affecting
any property owned or leased by the Borrower or any of its Subsidiaries, or (v)
the presence of any asbestos-containing material or underground storage tanks,
whether in use or closed, under or on any property owned or leased by the
Borrower or any of its Subsidiaries; provided, however, that the foregoing
indemnity shall not apply to any such costs, expenses, claims, demands, damages,
penalties or liabilities that are determined in a final non-appealable order of
a court of competent jurisdiction to have arisen solely out of the gross
negligence or willful misconduct of the indemnified person.
ARTICLE 6
Information Covenants
So long as any of the Obligations is outstanding and unpaid or the
Lenders have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled), and unless the Required
Lenders shall otherwise consent in writing, the Borrower will furnish or cause
to be furnished to the Administrative Agent (with, for the reports required
under Sections 6.1, 6.2, 6.3 and 6.4 hereof, sufficient copies for each Lender):
Section 6.1 Quarterly Financial Statements and Information. Within
forty-five (45) days after the last day of each of the first three (3) quarters
of each fiscal year of the Borrower, the balance sheets and the related
statements of operations of the Borrower on a consolidated and consolidating
basis with its Subsidiaries as at the end of such quarter and as of the end of
the preceding fiscal year and the related statements of cash flows of the
Borrower on a consolidated basis with its Subsidiaries for such quarter and for
the elapsed portion of the year ended with the last day of such quarter, each of
which shall set forth in comparative form such figures as at the end of and for
such quarter and appropriate prior period and shall be certified by the chief
financial officer, chief accounting officer or controller of the Borrower to
have been prepared in accordance with GAAP and to present fairly in all material
respects the financial position of the Borrower on a consolidated and
consolidating basis with its Subsidiaries as at the end of such period and the
results of operations for such period, and for the elapsed portion of the year
ended with the last day of such period, subject only to normal year-end and
audit adjustments.
Section 6.2 Annual Financial Statements and Information. Within ninety
(90) days after the end of each fiscal year of the Borrower, the audited
consolidated balance sheet of the Borrower and its Subsidiaries as of the end of
such fiscal year and the related audited consolidated statements of operations
for such fiscal year and for the previous fiscal year, the related audited
consolidated statements of cash flow and members' equity for such fiscal year
and for the previous fiscal year, each of which shall be accompanied by an
opinion of independent certified public accountants of recognized national
standing acceptable to the Administrative Agent (without a "going concern" or
like qualification or exception and without any qualification or exception as to
the scope of the audit), together with a statement of such accountants that in
connection with their audit, nothing came to their attention that caused them to
believe that the Borrower was not in compliance with or was otherwise in Default
under the
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terms, covenants, provisions or conditions of Articles 7 and 8 hereof insofar as
they relate to accounting or financial matters.
Section 6.3 Monthly Financial Information. Within forty-five (45)
days after the end of each month for the first eleven (11) months of fiscal
year, and within sixty (60) days after the end of the last month of each fiscal
year, the Borrower shall furnish unaudited statements of income and expense for
each Station, each Newspaper, the Porta-Phone Paging Business and the Satellite
Broadcasting Business, which shall contain a comparison with budget or
projections for such period and a comparison to the comparable period for the
prior year, and which shall be certified by the chief financial officer, chief
accounting officer or controller of the Borrower.
Section 6.4 Performance Certificates. At the time the financial
statements are furnished pursuant to Sections 6.1 and 6.2, a certificate of the
president, chief financial officer, chief accounting officer or controller of
the Borrower as to its financial performance, in substantially the form attached
hereto as Exhibit L:
(a) setting forth as and at the end of such quarterly period
or fiscal year, as the case may be, the arithmetical calculations required to
establish (i) any adjustment to the Applicable Margins, as provided for in
Section 2.3(f) and (ii) whether or not the Borrower was in compliance with the
requirements of Sections 7.8, 7.9, 7.10, 7.11, 7.12, 7.13 and 7.14 hereof;
(b) stating that, to the best of his or her knowledge, no
Default has occurred as at the end of such quarterly period or year, as the case
may be, or, if a Default has occurred, disclosing each such Default and its
nature, when it occurred, whether it is continuing and the steps being taken by
the Borrower with respect to such Default; and
(c) containing a list of all Acquisitions, Investments (other
than Cash Equivalents), Restricted Payments, Restricted Purchases and Asset
Sales, in each case, which exceed $1,000,000.00 per transaction or series of
related transactions, for the four (4) quarter period then ended or most
recently ended, together with the total amount for each of the foregoing
categories.
Section 6.5 Copies of Other Reports.
(a) Promptly upon receipt thereof, copies of all reports, if
any, submitted to the Borrower by the Borrower's independent public accountants
regarding the Borrower, including, without limitation, any management report
submitted to the board of directors of the Borrower prepared in connection with
the annual audit referred to in Section 6.2 hereof.
(b) From time to time and promptly upon each request, such
data, certificates, reports, statements, documents or further information
regarding the business, assets, liabilities, financial position, projections,
results of operations or business prospects of the Borrower or any of its
Subsidiaries, as the Administrative Agent or any Lender may reasonably request.
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(c) Annually, certificates of insurance indicating that the
requirements of Section 5.5 hereof remain satisfied for such fiscal year,
together with, upon request, copies of any new or replacement insurance policies
obtained during such year.
(d) Within sixty (60) days of the beginning of each fiscal
year, the annual budget for the Borrower and its Subsidiaries on a quarter by
quarter basis.
(e) Promptly upon their becoming available, copies of (i) all
financial statements, reports, notices and proxy statements sent or made
available generally by the Borrower to its security holders or by any Subsidiary
of the Borrower to its security holders other than the Borrower or another
Subsidiary of the Borrower, (ii) all regular and periodic reports and all
registration statements (other than on Form S-8 or a similar form) and
prospectuses, if any, filed by the Borrower or any of its Subsidiaries with any
securities exchange or with the Securities and Exchange Commission or any
governmental or private regulatory authority, (iii) all press releases and other
statements made available generally by the Borrower or any of its Subsidiaries
to the public concerning material developments in the business of the Borrower
or any of its Subsidiaries, (iv) any material non-routine correspondence or
official notices received by the Borrower, or any of its Subsidiaries from the
FCC or other communications regulatory authority, and (v) all material
information filed by the Borrower or any of its Subsidiaries with the FCC
(including all Ownership Reports and amendments or supplements to any Ownership
Report).
(f) Promptly upon (i) receipt of notice of (A) any forfeiture,
non-renewal, cancellation, termination, revocation, suspension, impairment or
material modification of any material License held by the Borrower or any of its
Subsidiaries, or any notice of default or forfeiture with respect to any such
License, or (B) any refusal by any governmental agency or authority (including
the FCC) to renew or extend any such License, a certificate specifying the
nature of such event, the period of existence thereof, and what action the
Borrower and its Subsidiaries are taking and propose to take with respect
thereto, and (ii) any Acquisition of any Station, a written notice setting forth
with respect to such Station all of the data required to be set forth in
Schedule 3 with respect to such Stations and the Licenses required in connection
with the ownership and operation of such Station (it being understood that such
written notice shall be deemed to supplement Schedule 3 attached hereto for all
purposes of this Agreement).
Section 6.6 Notice of Litigation and Other Matters. Notice specifying
the nature and status of any of the following events, promptly, but in any event
not later than fifteen (15) days after the occurrence of any of the following
events becomes known to the Borrower:
(a) the commencement of all proceedings and investigations by
or before any governmental body and all actions and proceedings in any court or
before any arbitrator against the Borrower or any Subsidiary, or, to the extent
known to the Borrower, which could have a Materially Adverse Effect;
(b) any material adverse change with respect to the business,
assets, liabilities, financial position, annual budget, results of operations
business prospects or projections of the
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Borrower and its Subsidiaries, taken as a whole, other than changes in the
ordinary course of business which have not had and would not reasonably be
expected to have a Materially Adverse Effect and other than changes in the
industry in which the Borrower or any of its Subsidiaries operate which would
not reasonably be expected to have a Materially Adverse Effect;
(c) any Default or the occurrence or non-occurrence of any
event (i) which constitutes, or which with the passage of time or giving of
notice or both would constitute a default by the Borrower or any of its
Subsidiaries under any material agreement other than this Agreement and the
other Loan Documents to which the Borrower or any Subsidiary of the Borrower is
party or by which any of their respective properties may be bound, including,
without limitation, the Subordinated Note Indenture or any License, Operating
Agreement or other material contract, or (ii) which could have a Materially
Adverse Effect, giving in each case a description thereof and specifying the
action proposed to be taken with respect thereto;
(d) the occurrence of any Reportable Event or a "prohibited
transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of
the Code) with respect to any Plan of the Borrower or any of its Subsidiaries or
the institution or threatened institution by PBGC of proceedings under ERISA to
terminate or to partially terminate any such Plan or the commencement or
threatened commencement of any litigation regarding any such Plan or naming it
or the trustee of any such Plan with respect to such Plan or any action taken by
the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate of the
Borrower to withdraw or partially withdraw from any Plan or to terminate any
Plan; and
(e) the occurrence of any event subsequent to the Agreement
Date which, if such event had occurred prior to the Agreement Date, would have
constituted an exception to the representation and warranty in Section 4.1(m) of
this Agreement.
ARTICLE 7
Negative Covenants
So long as any of the Obligations is outstanding and unpaid or the
Lenders have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled), and unless the Required
Lenders, or such greater number of Lenders as may be expressly provided herein,
shall otherwise give their prior consent in writing:
Section 7.1 Indebtedness of the Borrower and its Subsidiaries. The
Borrower shall not, and shall not permit any of its Subsidiaries to, create,
assume, incur or otherwise become or remain obligated in respect of, or permit
to be outstanding, any Indebtedness except:
(a) the Obligations;
(b) accounts payable, accrued expenses (including taxes) and
customer advance payments incurred in the ordinary course of business;
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(c) Indebtedness secured by Permitted Liens which, together
with Indebtedness permitted under Sections 7.1(f), (g), (h) and (i) (other than
obligations incurred pursuant to an Acquisition as may be permitted in such
Sections), shall not exceed $5,000,000.00 in the aggregate at any time
outstanding;
(d) obligations under Interest Rate Hedge Agreements;
(e) unsecured Indebtedness of the Borrower or any of its
Subsidiaries to the Borrower or any other Subsidiary of the Borrower so long as
the corresponding debt instruments are pledged to the Administrative Agent as
security for the Obligations;
(f) Guaranties constituting Indebtedness permitted under
Section 7.5 hereof which, together with Indebtedness permitted under Sections
7.1(c), (g), (h) and (i), (other than obligations incurred pursuant to an
Acquisition as may be permitted in such Sections) shall not exceed $5,000,000.00
in the aggregate at any time outstanding;
(g) with respect to any personal property, any conditional
sale obligation, any purchase money obligation, any rental obligation, any
purchase money security interest or any other arrangement for the use of
personal property of any other Person, which in any such case has an unexpired
term of not less than one (1) year, other than an arrangement constituting a
Capitalized Lease Obligation, provided that the aggregate amount payable by the
Borrower and its Subsidiaries pursuant to all such arrangements in any fiscal
year, together with Indebtedness permitted under Section 7.1(c), (f), (h) and
(i), (other than obligations incurred pursuant to a Permitted Acquisition as may
be permitted in such Sections) shall not exceed $5,000,000.00 in the aggregate
at any time outstanding, plus the amount of any such obligations incurred
pursuant to an Acquisition permitted under Section 7.6 hereof;
(h) any lease or rental obligation for real property which has
an unexpired term of not less than one (1) year, provided that the aggregate
amount payable in respect of all such arrangements by the Borrower and its
Subsidiaries in any fiscal year, together with Indebtedness permitted under
Sections 7.1(c), (f), (g) and (i) (other than obligations incurred pursuant to a
Permitted Acquisition as may be permitted in such Sections) shall not exceed
$5,000,000.00 in the aggregate at any time outstanding, plus the amount of any
such obligations incurred pursuant to an Acquisition permitted under Section 7.6
hereof;
(i) Capitalized Lease Obligations, provided that the aggregate
amount payable by the Borrower and its Subsidiaries in respect of all such
Capitalized Lease Obligations in any fiscal year, together with Indebtedness
permitted under Sections 7.1(c), (f), (g) and (h), (other than obligations
incurred pursuant to a Permitted Acquisition as may be permitted in such
Sections) shall not exceed $5,000,000.00 in the aggregate at any time
outstanding, plus the amount of any such obligations incurred pursuant to an
Acquisition permitted under Section 7.6 hereof;
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(j) Subordinated Debt incurred pursuant to the terms of the
Subordinated Note Indenture as in effect on the date hereof in a principal
amount not to exceed $160,000,000, or Indebtedness incurred in refinancing such
Subordinated Debt, provided such refinancing Indebtedness is on terms and
conditions satisfactory to the Required Lenders; and
(k) Indebtedness of the Borrower and its Subsidiaries existing
as of the Agreement Date as set forth on Schedule 7 attached hereto.
Section 7.2 Limitation on Liens. The Borrower shall not, and shall not
permit any of its Subsidiaries to, create, assume, incur or permit to exist or
to be created, assumed, incurred or permitted to exist, directly or indirectly,
any Lien on any of its properties or assets, whether now owned or hereafter
acquired, except for Permitted Liens. The Borrower shall not, and shall not
permit any of its Subsidiaries to undertake, covenant or agree with any third
party that it will not create, assume, incur or permit to exist any lien in the
favor the Administrative Agent or the Lenders securing the Obligations on any of
its assets or properties, whether now owned or hereafter acquired, except for
Permitted Liens.
Section 7.3 Amendment and Waiver. The Borrower shall not, and shall
not permit any of its Subsidiaries to, enter into any amendment of, or agree to
or accept or consent to any waiver of any of the provisions of its articles or
certificate of incorporation, or its partnership agreement or its by-laws, as
appropriate, any License or Operating Agreement or any of the documents
evidencing Subordinated Debt, in each case, in any respect materially adverse to
the Administrative Agent or any Lender or any of their rights or claims under
any of the Loan Documents.
Section 7.4 Liquidation, Merger or Disposition of Assets.
(a) Disposition of Assets. The Borrower shall not, and shall
not permit any of its Subsidiaries to, make any Asset Sale; provided, however,
that the Borrower and its Subsidiaries, or any of them, may make Asset Sales if
such Asset Sales (i) are in the ordinary course of business of assets held for
resale in the ordinary course of business or the trade in or replacement of
assets in the ordinary course of business, (ii) do not exceed, for any
transaction or series of related transactions, $1,000,000.00 per fiscal year or
(iii) (A) involve the disposition of substantially all of the assets of the
Porta-Phone Paging Business or the Satellite Broadcasting Business and (B) the
proceeds of such Asset Sales are applied pursuant to Section 2.7(b)(iii) hereof.
(b) Liquidation or Merger. The Borrower shall not, and shall
not permit any of its Subsidiaries to, at any time liquidate or dissolve itself
(or suffer any liquidation or dissolution) or otherwise wind up, or enter into
any merger, other than (so long as no Default exists or would be caused
thereby): (i) a merger or consolidation among the Borrower and one or more of
its Subsidiaries, provided the Borrower is the surviving corporation, or (ii) a
merger between or among two or more Subsidiaries of the Borrower, or (iii) in
connection with an Acquisition permitted hereunder effected by a merger in
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which the Borrower or, in a merger in which the Borrower is not a party, a
Subsidiary of the Borrower is the surviving corporation or the surviving
corporation becomes a Subsidiary of the Borrower.
Section 7.5 Limitation on Guaranties. The Borrower shall not, and
shall not permit any of its Subsidiaries to, at any time Guaranty, assume, be
obligated with respect to, or permit to be outstanding any Guaranty of, any
obligation of any other Person other than: (a) a guaranty by endorsement of
negotiable instruments for collection in the ordinary course of business; (b) as
may be contained in any Loan Document; or (c) Guaranties of Indebtedness
incurred as permitted pursuant to Section 7.1(f) hereof and the Borrower
provides to the Administrative Agent and the Lenders calculations in form and
substance reasonably satisfactory to the Administrative Agent, specifically
demonstrating compliance with Sections 7.8, 7.9, 7.10, 7.11, 7.12, 7.13 and 7.14
hereof after giving effect to such Guaranty.
Section 7.6 Investments and Acquisitions. The Borrower shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly make any
Acquisition or Investment; provided, however, that so long as no Default or
Event of Default exists or would be caused thereby the Borrower and its
Subsidiaries may:
(a) make Investments in Cash Equivalents;
(b) make Investments in Subsidiaries;
(c) provided that the Borrower complies with Sections 5.13 and
5.16 hereof in connection therewith, and provides to the Administrative Agent
and the Lenders within ten (10) days prior to the consummation of the proposed
Acquisition an acquisition report signed by an executive officer of the
Borrower, in form and substance reasonably satisfactory to the Administrative
Agent, which shall include, without limitation, (X) financial calculations
specifically demonstrating the Borrower's pro forma compliance with Sections
7.8, 7.9, 7.10, 7.11, 7.12, 7.13 and 7.14 hereof after giving effect to such
Acquisition and (Y) financial projections for the Borrower for a five (5) year
period after the closing of such Acquisition after giving effect to such
Acquisition, including, without limitation, a statement of sources and uses of
funds for such Acquisition showing, among other things, the sources of financing
for such Acquisition, and demonstrating Borrower's ability to meet its repayment
obligations hereunder through the Maturity Date, the Borrower and its
Subsidiaries may make Acquisitions of Stations or Newspapers subject to
satisfaction of the following conditions:
(i) any Station to be acquired (A) shall be located
in any of the top one hundred twenty-five (125) United States markets,
as ranked by Designated Market Area as determined by Xxxxxxx Media
Research, (B) shall be a CBS, NBC, ABC or FOX network affiliate and
located in a market ranked one hundred twenty-six (126) through and
including one hundred seventy-five (175), as ranked by Designated
Market Area as determined by Xxxxxxx Media Research, or (C) shall be
located in, or adjacent to, a market in which the Borrower or any of
its Subsidiaries owns a Station;
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(ii) any Newspaper to be acquired shall be a daily
newspaper with a minimum paid circulation of 15,000;
(iii) the Borrower shall have given to the
Administrative Agent written notice of such Acquisition at least
fifteen (15) days prior to executing any binding commitment with
respect thereto, which notice shall state the additional amounts, if
any, by which the Borrower proposes to increase the dollar limitations
set forth in Sections 7.1(g), (h) and (i) hereof; and the structure of
the transaction shall be in form and substance acceptable to the
Administrative Agent;
(iv) if such Acquisition is of a Station that does
not have an affiliation agreement with ABC, CBS, NBC or FOX, the
Borrower shall negotiate in good faith with the Administrative Agent,
on behalf of the Lenders, regarding a limitation, to be added upon
consent of the Required Lenders as a negative covenant to this
Agreement, on the annual amount of its Programming Obligations; and
(v) the agreement governing such Acquisition and all
related documents and instruments shall be in form and substance
satisfactory to the Administrative Agent;
(d) acquire from Bull Run Corporation a seventy-three percent
(73%) economic interest and a thirty-three and one-half percent (33.5%) voting
interest in Xxxxxx Xxxxxxx for a purchase price of $10,000,000.00 plus
transaction and related costs and options for the purchase of certain of the
Borrower's stock; provided, that on or prior to the consummation of such
Investment, the Borrower shall provide to the Administrative Agent, in form and
substance satisfactory the Administrative Agent, (i) evidence that the Borrower
has pledged such economic and voting interests as additional collateral securing
the Obligations under the Loan Agreement, (ii) certification of the Borrower's
compliance with Section 7.8, 7.9, 7.10, 7.11, 7.12, 7.13 and 7.14 hereof and
under through the Maturity Date after giving effect to such Investment, (iii)
certification that no Default or Event of Default exists or will be caused by
such Investment, and (iv) evidence of consummation of such Investment on
substantially the terms and conditions set forth in that certain Stock Option
Agreement dated as of February 28, 1999 between the Borrower and Bull Run
Corporation; and
(e) provided that the Borrower complies with Sections 5.13 and
5.16 hereof in connection therewith, and provides to the Administrative Agent
and the Lenders within ten (10) days prior to the consummation of the proposed
Acquisition an acquisition report signed by an executive officer of the
Borrower, in form and substance reasonably satisfactory to the Administrative
Agent, which shall include, without limitation, (X) financial calculations
specifically demonstrating the Borrower's pro forma compliance with Sections
7.8, 7.9, 7.10, 7.11, 7.12, 7.13 and 7.14 hereof after giving effect to such
Acquisition and (Y) financial projections for the Borrower for a five (5) year
period after the closing of such Acquisition after giving effect to such
Acquisition, including, without limitation, a statement of sources and uses of
funds for such Acquisition showing, among other things, the sources of financing
for such Acquisition, and demonstrating Borrower's ability to meet its repayment
obligations hereunder
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through the Maturity Date, the Borrower and its Subsidiaries may make
Acquisitions of or Investments in Stations, Newspapers, the Porta-Phone Paging
Business, the Satellite Broadcasting Business or other media related businesses
in an aggregate amount not to exceed $1,000,000.00 per transaction or series of
related transactions per fiscal year; and
(f) The Borrower may make such other Acquisitions as may be
approved from time to time by the Required Lenders in their sole discretion.
Section 7.7 Restricted Payments; Restricted Purchases. The Borrower
shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly declare or make any Restricted Payment or Restricted Purchase;
provided, however, that:
(a) any Subsidiary of the Borrower may make Restricted
Payments to the Borrower or to a wholly-owned Subsidiary of the Borrower;
(b) the Borrower may redeem its existing preferred or common
stock and purchase subordinated notes in the open market issued under the
Subordinated Note Indenture so long as no Default or Event of Default exists at
the time of making such payment or purchase or would exist after giving effect
thereto;
(c) the Borrower may make payments of current interest on the
senior subordinated notes issued pursuant to and in accordance with the
Subordinated Note Indenture; and
(d) the Borrower may make Restricted Payments and Restricted
Purchases (other than as set forth above in clause (a), (b) or (c) of this
Section 7.7), provided that: (A) prior to making any such payment or purchase,
the Borrower shall have demonstrated to the satisfaction of the Administrative
Agent that the Borrower will be in compliance with all of the covenants
contained herein after giving effect to such payment or purchase; (B) no Default
or Event of Default exists at the time of making such payment or purchase or
would exist after giving effect thereto; and (C) prior to making any such
payment or purchase, the Borrower shall have delivered to the Administrative
Agent a certificate of its chief financial officer, chief accounting officer or
controller in form and substance satisfactory to the Administrative Agent which
shall contain calculations demonstrating on a pro forma basis the Borrower's
compliance with Sections 7.8, 7.9, 7.10, 7.11, 7.12, 7.13 and 7.14 hereof after
giving effect to such payment or purchase.
Section 7.8 Senior Leverage Ratio. (a) As of the end of any fiscal
quarter, (b) at the time of the issuance of any Letter of Credit (after giving
effect to such Letter of Credit), and (c) the time of any Advance hereunder
(after giving effect to such Advance), the Borrower shall not permit its Senior
Leverage Ratio to exceed the ratios set forth below during the periods
indicated:
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Period Senior Leverage Ratio
------ ---------------------
Agreement Date through December 31, 2000 4.25:1.00
January 1, 2001 and thereafter 4.00:1.00
Section 7.9 Interest Coverage Ratio. (a) As of the end of any fiscal
quarter, (b) at the time of the issuance of any Letter of Credit (after giving
effect to such Letter of Credit), and (c) the time of any Advance hereunder
(after giving effect to such Advance), the Borrower shall not permit its
Interest Coverage Ratio to be less than the ratio set forth below for the
periods indicated:
Period Interest Coverage Ratio
------ -----------------------
Agreement Date through June 30, 2000 1.40:1.00
July 1, 2000 and thereafter 1.50:1.00
Section 7.10 Fixed Charge Coverage Ratio. (a) As of the end of any
fiscal quarter, (b) at the time of the issuance of any Letter of Credit (after
giving effect to such Letter of Credit) and (c) at the time of any Advance
hereunder (after giving effect to such Advance) the Borrower shall not permit
the Fixed Charge Coverage Ratio to be less than 1.0:1.0.
Section 7.11 Pro Forma Debt Service Coverage Ratio. (a) As of the end
of any fiscal quarter, (b) at the time of the issuance of any Letter of Credit
(after giving effect to such Letter of Credit) and (c) at the time of any
Advance hereunder (after giving effect to such Advance) the Borrower shall not
permit its Pro Forma Debt Service Coverage Ratio to be less than 1.10:1.0.
Section 7.12 Leverage Ratio. (a) As of the end of any fiscal quarter,
(b) at the time of the issuance of any Letter of Credit (after giving effect to
such Letter of Credit) and (c) at the time of any Advance hereunder (after
giving effect to such Advance) the Borrower shall not permit its Leverage Ratio
to exceed the ratios set forth below during the periods indicated:
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Period Leverage Ratio
------ --------------
Agreement Date through March 31, 2000 7.15:1.00
April 1, 2000 through June 30, 2000 6.95:1.00
July 1, 2000 through December 31, 2000 6.50:1.00
January 1, 2001 and thereafter 6.40:1.00
Section 7.13 Adjusted Leverage Ratio. (a) As of the end of any fiscal
quarter, (b) at the time of the issuance of any Letter of Credit (after giving
effect to such Letter of Credit) and (c) at the time of any Advance hereunder
(after giving effect to such Advance) the Borrower shall not permit its Adjusted
Leverage Ratio to exceed the ratios set forth below during the periods
indicated:
Period Leverage Ratio
------ --------------
Agreement Date through March 31, 2000 7.15:1.00
April 1, 2000 through June 30, 2000 6.95:1.00
July 1, 2000 through December 31, 2000 6.50:1.00
January 1, 2001 through December 31, 2001 6.25:1.00
January 1, 2002 through December 31, 2003 6.00:1.00
January 1, 2004 and thereafter 5.00:1.00
Section 7.14 Limitation on Capital Expenditures. The Borrower shall
not, and shall not permit its Subsidiaries to, make Capital Expenditures during
the period from January 1, 2000 through December 21, 2002 other than Capital
Expenditures in an amount not to exceed $15,500,000.00 in the aggregate per
fiscal year.
Section 7.15 Affiliate Transactions. Except as specifically provided
herein and as may be described on Schedule 6 attached hereto, the Borrower shall
not, and shall not permit any of its Subsidiaries to, at any time engage in any
transaction with an Affiliate, or make an assignment or other transfer of any of
its properties or assets to any Affiliate on terms no less advantageous to the
Borrower or such Subsidiary than would be the case if such transaction had been
effected with a non-Affiliate.
Section 7.16 Real Estate. Neither the Borrower nor any of its
Subsidiaries shall purchase any real estate or enter into any sale-leaseback
transaction except (a) as contemplated in
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an Acquisition permitted under Section 7.6 hereof and (b) real estate purchases
useful in connection with the Borrower's business made in the ordinary course of
business.
Section 7.17 ERISA Liabilities. The Borrower shall not, and shall
cause each of its ERISA Affiliates not to, (i) permit the assets of any of their
respective Plans to be materially less than the amount necessary to provide all
accrued benefits under such Plans, or (ii) enter into any Multiemployer Plan.
Section 7.18 No Limitation on Upstream Dividends by Subsidiaries. The
Borrower shall not permit any Subsidiary to enter into or agree, or otherwise
become subject (other than pursuant to Applicable Law), to any agreement,
contract or other arrangement with any Person pursuant to the terms of which (a)
such Subsidiary is or would be prohibited from or limited in declaring or paying
any cash dividends or distributions on any class of its Ownership Interests
owned directly or indirectly by the Borrower or from making any other
distribution on account of any class of any such Ownership Interests (herein
referred to as "Upstream Dividends") or (b) the declaration or payment of
Upstream Dividends by a Subsidiary to the Borrower or to another Subsidiary, on
an annual or cumulative or other basis, is or would be otherwise limited or
restricted.
ARTICLE 8
Default
Section 8.1 Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
governmental or non-governmental body:
(a) Any representation or warranty made under this Agreement
shall prove incorrect or misleading in any material respect when made or deemed
to be made pursuant to Section 4.2 hereof;
(b) The Borrower shall default in the payment of: (i) any
interest under any of the Notes or fees or other amounts payable to the Lenders
and the Administrative Agent under any of the Loan Documents, or any of them,
when due, and such Default shall not be cured by payment in full within three
(3) Business Days from the due date; or (ii) any principal under any of the
Notes when due;
(c) The Parent or the Borrower shall default in the
performance or observance of any agreement or covenant contained in Sections
5.2(a), 5.10, 5.13, 5.16 or 5.20 hereof or in Articles 6 or 7 hereof;
(d) The Borrower shall default in the performance or
observance of any other agreement or covenant contained in this Agreement not
specifically referred to elsewhere in this
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Section 8.1, and such default shall not be cured within a period of
thirty (30) days from the occurrence of such Default;
(e) There shall occur any default in the performance or
observance of any agreement or covenant or breach of any representation or
warranty contained in any of the Loan Documents (other than this Agreement or as
otherwise provided in Section 8.1 hereof) by the Borrower, any of its
Subsidiaries, or any other obligor thereunder, which shall not be cured within a
period of thirty (30) days from the occurrence of such Default;
(f) There shall be entered and remain unstayed a decree or
order for relief in respect of the Borrower or any of its Subsidiaries under
Title 11 of the United States Code, as now constituted or hereafter amended, or
any other applicable federal or state bankruptcy law or other similar law, or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
similar official of the Borrower or any of its Subsidiaries, or of any
substantial part of their respective properties, or ordering the winding-up or
liquidation of the affairs of the Borrower, or any of its Subsidiaries; or an
involuntary petition shall be filed against the Borrower or any of its
Subsidiaries and a temporary stay entered, and (i) such petition and stay shall
not be diligently contested, or (ii) any such petition and stay shall continue
undismissed for a period of sixty (60) consecutive days;
(g) The Borrower or any of its Subsidiaries shall file a
petition, answer or consent seeking relief under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other applicable federal
or state bankruptcy law or other similar law, or the Borrower or any of its
Subsidiaries shall consent to the institution of proceedings thereunder or to
the filing of any such petition or to the appointment or taking of possession of
a receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Borrower or any of its Subsidiaries or of any
substantial part of their respective properties, or the Borrower or any of its
Subsidiaries shall fail generally to pay their respective debts as they become
due or shall be adjudicated insolvent; the Borrower shall suspend or discontinue
its business; the Borrower or any of its Subsidiaries shall have concealed,
removed any of its property with the intent to hinder or defraud its creditors
or shall have made a fraudulent or preferential transfer under any applicable
fraudulent conveyance or bankruptcy law, or the Borrower or any of its
Subsidiaries shall take any action in furtherance of any such action;
(h) A judgment not covered by insurance or indemnification,
where the indemnifying party has agreed to indemnify and is financially able to
do so, shall be entered by any court against the Borrower or any of its
Subsidiaries for the payment of money which exceeds singly or in the aggregate
with other such judgments, $250,000.00, or a warrant of attachment or execution
or similar process shall be issued or levied against property of the Borrower or
any of its Subsidiaries which, together with all other such property of the
Borrower or any of its Subsidiaries subject to other such process, exceeds in
value $250,000.00 in the aggregate, and if, within thirty (30) days after the
entry, issue or levy thereof, such judgment, warrant or process shall not have
been paid or discharged or stayed pending appeal or removed to bond, or if,
after the expiration of any such stay, such judgment, warrant or process shall
not have been paid or discharged or removed to bond;
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(i) There shall be at any time any material "accumulated
funding deficiency," as defined in ERISA or in Section 412 of the Code, with
respect to any Plan maintained by the Borrower or any of its Subsidiaries or any
ERISA Affiliate, or to which the Borrower or any of its Subsidiaries or any
ERISA Affiliate has any liabilities, or any trust created thereunder; or a
trustee shall be appointed by a United States District Court to administer any
such Plan; or PBGC shall institute proceedings to terminate any such Plan; or
the Borrower or any of its Subsidiaries or any ERISA Affiliate shall incur any
liability to PBGC in connection with the termination of any such Plan; or any
Plan or trust created under any Plan of the Borrower or any of its Subsidiaries
or any ERISA Affiliate shall engage in a "prohibited transaction" (as such term
is defined in Section 406 of ERISA or Section 4975 of the Code) which would
subject any such Plan, any trust created thereunder, any trustee or
administrator thereof, or any party dealing with any such Plan or trust to the
tax or penalty on "prohibited transactions" imposed by Section 502 of ERISA or
Section 4975 of the Code;
(j) There shall occur (i) any default under any instrument,
document or agreement relating to any Indebtedness of the Borrower or any of its
Subsidiaries in an aggregate principal amount exceeding $250,000.00; (ii) any
event or condition the occurrence of which would permit such acceleration of
such Indebtedness, or which, as a result of a failure to comply with the terms
thereof, would make such Indebtedness otherwise due and payable, and which event
or condition has not been cured within any applicable cure period or waived in
writing prior to any declaration of an Event of Default or acceleration of the
Loans hereunder; or (iii) any material default under any Interest Rate Hedge
Agreement which would permit the obligation of the Borrower to make payments to
the counterparty thereunder to be then due and payable;
(k) Any Loan Document or any material provision thereof, shall
at any time and for any reason be declared by a court of competent jurisdiction
to be null and void, or a proceeding shall be commenced by the Borrower or any
of its Subsidiaries or by any governmental authority having jurisdiction over
the Borrower or any of its Subsidiaries seeking to establish the invalidity or
unenforceability thereof (exclusive of questions of interpretation of any
provision thereof), or the Borrower or any of its Subsidiaries shall deny that
it has any liability or obligation for the payment of principal or interest
purported to be created under any Loan Document;
(l) Any Security Document shall for any reason, fail or cease
(except by reason of lapse of time) to create a valid and perfected and
first-priority Lien on or Security Interest in any portion of the Collateral
purported to be covered thereby, subject only to Permitted Liens;
(m) (i) Any Person (or group of Persons) is or becomes the
"beneficial owner" (within the meaning of Rules 13d-3 and 13d-5 under the
federal Securities Exchange Act of 1934, as amended), directly or indirectly, of
a percentage of the voting Ownership Interests of the Borrower greater than
thirty-five percent (35%), other than J. Xxxx Xxxxxxxx or Xxxxxx X. Xxxxxxx,
Xx., the spouse and lineal descendants or either such individual, the estate,
executor,
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administrator, or other personal representative of either such individual, or
any trust created for either such individual or for the spouse or lineal
descendants of either such individual; or (ii) during any period of twenty-four
(24) consecutive months, individuals who at the beginning of such period
constituted the Board of Directors of the Borrower (together with any new
directors whose election by such Board or whose nomination for election by the
stockholders of the Borrower was approved by a majority of the directors then
still in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the Board of Directors then in office; or
(iii) except as permitted pursuant to this Agreement, the Borrower shall cease
or fail to own, directly or indirectly, beneficial and legal title to all of the
issued and outstanding Ownership Interests of each of its Subsidiaries or any
Subsidiary of the Borrower shall cease to be a wholly-owned Subsidiary of the
Borrower;
(n) Any material License shall be cancelled, terminated,
rescinded, revoked, suspended, impaired, otherwise finally denied renewal, or
otherwise modified in any material adverse respect, or shall be renewed on terms
that materially and adversely affect the economic or commercial value or
usefulness thereof; or any material License shall cease to be in full force and
effect; or the grant of any material License shall have been stayed, vacated or
reversed, or modified in any material adverse respect by judicial or
administrative proceedings; or any administrative law judge or other
representative of the shall have issued an initial decision in any
non-comparative material License renewal, material License revocation or any
comparative (multiple applicant) proceeding to the effect that any material
License should be revoked or not be renewed; or any other proceeding shall have
been instituted by or shall have been commenced before any court, the or any
other regulatory body that could reasonably be expected to result in (i)
cancellation, termination, rescission, revocation, material impairment,
suspension or denial of renewal of a material License, or (ii) a modification of
a material License in a material adverse respect or a renewal thereof on terms
that materially and adversely affect the economic or commercial value or
usefulness thereof;
(o) Any Operating Agreement or any other agreement which is
necessary to the operation of a Station, a Newspaper, the Porta-Phone Paging
Business or the Satellite Broadcasting Business shall be revoked or terminated
or materially, adversely modified and not replaced by a substitute acceptable to
the Required Lenders within thirty (30) days of such revocation, termination or
modification;
(p) The Borrower's on-the-air broadcast operations at any
Station shall be interrupted at any time for more than forty-eight (48) hours,
whether or not consecutive, during any period of five (5) consecutive days,
unless (a) the broadcasting operations of all or substantially all of the
Stations in the relevant market also are interrupted for a like period of time,
or (b) the Borrower shall be receiving during such period of interruption
insurance sufficient to assure that its per diem Operating Cash Flow during such
period is at least equal to that which could reasonably have been expected
during such period but for the interruption;
(q) The Borrower or any holder of Subordinated Debt shall fail
to comply with the agreement or instrument governing or evidencing such
Subordinated Debt or any
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separate subordination agreement, and the Administrative Agent shall have
determined that such failure to comply could reasonably be expected to have a
material adverse effect on the Borrower or any of its Subsidiaries or on its
ability to perform its obligations hereunder or under any of the Loan Documents
or on the rights and remedies of the Administrative Agent and the Lenders
hereunder or under the Loan Documents; or
(r) There shall occur any Materially Adverse Effect.
Section 8.2 Remedies.
(a) If an Event of Default specified in Section 8.1 hereof
(other than an Event of Default under Section 8.1(f) or (g) hereof) shall have
occurred and shall be continuing, the Administrative Agent, at the request of
the Required Lenders subject to Section 9.8(a) hereof, shall (i) (A) terminate
the Commitments, and/or (B) declare the principal of and interest on the Loans
and the Notes and all other amounts owed to the Lenders and the Administrative
Agent under this Agreement, the Notes and any other Loan Documents to be
forthwith due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived, anything in this
Agreement, the Notes or any other Loan Document to the contrary notwithstanding,
and the Commitments shall thereupon forthwith terminate and (ii) require the
Borrower to, and the Borrower shall thereupon, deposit in an interest bearing
account with the Administrative Agent, as cash collateral for the Obligations,
an amount equal to the maximum amount currently or at any time thereafter to be
drawn on all outstanding Letters of Credit, and the Borrower hereby pledges to
the Administrative Agent, the Lenders and the Issuing Bank and grants to them a
security interest in, all such cash as security for the Obligations.
(b) Upon the occurrence and continuance of an Event of Default
specified in Section 8.1(f) or (g) hereof, all principal, interest and other
amounts due hereunder and under the Notes, and all other Obligations, shall
thereupon and concurrently therewith become due and payable and the Commitments
shall forthwith terminate and the principal amount of the Loans outstanding
hereunder shall bear interest at the Default Rate, and the Borrower shall
thereupon, deposit in an interest bearing account with the Administrative Agent,
as cash collateral for the Obligations, an amount equal to the maximum amount
currently or at any time thereafter to be drawn on all outstanding Letters of
Credit, all without any action by the Administrative Agent, the Lenders, the
Required Lenders and the Issuing Bank, or any of them, and without presentment,
demand, protest or other notice of any kind, all of which are expressly waived,
anything in this Agreement or in the other Loan Documents to the contrary
notwithstanding, and the Borrower hereby pledges to the Administrative Agent,
the Lenders and the Issuing Bank and grants to them a security interest in, all
such cash as security for the Obligations.
(c) Upon acceleration of the Notes, as provided in subsection
(a) or (b) of this Section 8.2, the Administrative Agent and the Lenders shall
have all of the post-default rights granted to them, or any of them, as
applicable under the Loan Documents and under Applicable Law.
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(d) Upon acceleration of the Notes, as provided in subsection
(a) or (b) of this Section 8.2, the Administrative Agent shall have the right
(but not the obligation) upon the request of the Lenders to operate the business
of the Borrower and its Subsidiaries in accordance with the terms of the
Licenses and pursuant to the terms and subject to any limitations contained in
the Security Documents and, within guidelines established by the Required
Lenders, to make any and all payments and expenditures necessary or desirable in
connection therewith, including, without limitation, payment of wages as
required under the Fair Labor Standards Act, as amended, and of any necessary
withholding taxes to state or federal authorities. In the event the Required
Lenders fail to agree upon the guidelines referred to in the preceding sentence
within six (6) Business Days after the Administrative Agent has begun to operate
the business of the Borrower, the Administrative Agent may, after giving three
(3) days' prior written notice to the Lenders of its intention to do so, make
such payments and expenditures as it deems reasonable and advisable in its sole
discretion to maintain the normal day-to-day operation of such business. Such
payments and expenditures in excess of receipts shall constitute Advances under
this Agreement, not in excess of the amount of the Commitments. Advances made
pursuant to this Section 8.2(d) shall bear interest as provided in Section
2.3(d) hereof and shall be payable on demand. The making of one or more Advances
under this Section 8.2(d) shall not create any obligation on the part of the
Lenders to make any additional Advances hereunder. No exercise by the
Administrative Agent of the rights granted to it under this Section 8.2(d) shall
constitute a waiver of any other rights and remedies granted to the
Administrative Agent and the Lenders, or any of them, under this Agreement or at
law. The Borrower hereby irrevocably appoints the Administrative Agent as agent
for the Lenders, the true and lawful attorney of the Borrower, in its name and
stead and on its behalf, to execute, receipt for or otherwise act in connection
with any and all contracts, instruments or other documents in connection with
the operation of the Borrower's business in the exercise of the Administrative
Agent's and the Lenders' rights under this Section 8.2(d). Such power of
attorney is coupled with an interest and is irrevocable. The rights of the
Administrative Agent under this Section 8.2(d) shall be subject to its prior
compliance with Applicable Law to the extent applicable to the exercise of such
rights.
(e) Upon acceleration of the Notes, as provided in subsection
(a) or (b) of this Section 8.2, the Administrative Agent, upon request of the
Required Lenders, shall have the right to the appointment of a receiver for the
properties and assets of the Borrower and its Subsidiaries, and the Borrower,
for itself and on behalf of its Subsidiaries, hereby consents to such rights and
such appointment and hereby waives any objection the Borrower or any Subsidiary
may have thereto or the right to have a bond or other security posted by the
Administrative Agent on behalf of the Lenders, in connection therewith. The
rights of the Administrative Agent under this Section 8.2(e) shall be subject to
its prior compliance with Applicable Law to the extent applicable to the
exercise of such rights.
(f) The rights and remedies of the Administrative Agent and
the Lenders hereunder shall be cumulative, and not exclusive.
Section 8.3 Payments Subsequent to Declaration of Event of Default.
Subsequent to the acceleration of the Loans under Section 8.2 hereof, payments
and prepayments under this Agreement made to the Administrative Agent and the
Lenders or otherwise received by any of
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such Persons (from realization on Collateral for the Obligations or otherwise)
shall be paid over to the Administrative Agent (if necessary) and distributed by
the Administrative Agent as follows: first, to the Administrative Agent's
reasonable costs and expenses, if any, incurred in connection with the
collection of such payment or prepayment, including, without limitation, any
reasonable costs incurred by it in connection with the sale or disposition of
any Collateral for the Obligations and all amounts under Section 11.2(b) and (c)
hereof; second, to the Lenders, the Issuing Bank or the Administrative Agent for
any fees hereunder or under any of the other Loan Documents then due and
payable; third, to be deposited as set forth in Section 8.2(a) or (b) hereof;
fourth, to the Lenders pro rata (except as provided in Section 2.2(e)hereof), to
the payment of any unpaid interest which may have accrued on the Obligations;
fifth, to the Lenders pro rata based on the Loans then outstanding until all
Loans have been paid in full (and, for purposes of this clause, obligations
under Interest Rate Hedge Agreements with the Lenders or any of them shall be
paid on a pro rata basis with the Loans); sixth, to the Lenders pro rata based
on the Loans outstanding to the payment of any other unpaid Obligations;
seventh, to damages incurred by the Administrative Agent, the Issuing Bank and
the Lenders, or any of them, by reason of any breach hereof or of any other Loan
Document; and eighth, to the Borrower or as otherwise required by law.
ARTICLE 9
The Administrative Agent
Section 9.1 Appointment and Authorization. Each Lender hereby
irrevocably appoints and authorizes, and hereby agrees that it will require any
transferee of any of its interest in its portion of the Loans and in its Note
irrevocably to appoint and authorize, the Administrative Agent to take such
actions as its agent on its behalf and to exercise such powers hereunder and
under the other Loan Documents as are delegated by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto. Neither the
Administrative Agent, nor any of its respective directors, officers, employees
or agents, shall be liable for any action taken or omitted to be taken by it or
them hereunder or in connection herewith, except for its or their own gross
negligence or willful misconduct as determined by a final, non-appealable
judicial order of a court of competent jurisdiction.
Section 9.2 Interest Holders. The Administrative Agent may treat each
Lender, or the Person designated in the last notice filed with the
Administrative Agent, as the holder of all of the interests of such Lender in
its portion of the Loans and in its Note until written notice of transfer,
signed by such Lender (or the Person designated in the last notice filed with
the Administrative Agent) and by the Person designated in such written notice of
transfer, in form and substance reasonably satisfactory to the Administrative
Agent, shall have been filed with the Administrative Agent.
Section 9.3 Consultation with Counsel. The Administrative Agent may
consult with Powell, Goldstein, Xxxxxx & Xxxxxx LLP, Atlanta, Georgia, special
counsel to the Administrative Agent, or with other legal counsel selected by it
and shall not be liable for any
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action taken or suffered by it in good faith in consultation with the Required
Lenders and in reasonable reliance on such consultations.
Section 9.4 Documents. The Administrative Agent shall be under no duty
to examine, inquire into, or pass upon the validity, effectiveness or
genuineness of this Agreement, any Note, any other Loan Document, or any
instrument, document or communication furnished pursuant hereto or in connection
herewith, and the Administrative Agent shall be entitled to assume that they are
valid, effective and genuine, have been signed or sent by the proper parties and
are what they purport to be.
Section 9.5 Administrative Agent and Affiliates. With respect to the
Commitments and the Loans, the Administrative Agent shall have the same rights
and powers hereunder as any other Lender and the Administrative Agent and
Affiliates of the Administrative Agent may accept deposits from, lend money to
and generally engage in any kind of business with the Borrower, any of its
Subsidiaries or any Affiliates of, or Persons doing business with the Borrower,
as if they were not affiliated with the Administrative Agent and without any
obligation to account therefor.
Section 9.6 Responsibility of the Administrative Agent and the Issuing
Bank. The duties and obligations of the Administrative Agent and the Issuing
Bank under this Agreement are only those expressly set forth in this Agreement.
Each of the Administrative Agent and the Issuing Bank shall be entitled to
assume that no Default or Event of Default has occurred and is continuing unless
it has actual knowledge, or has been notified in writing by the Borrower, of
such fact, or has been notified by a Lender in writing that such Lender
considers that a Default or an Event of Default has occurred and is continuing,
and such Lender shall specify in detail the nature thereof in writing. Each of
the Administrative Agent and the Issuing Bank shall not be liable hereunder for
any action taken or omitted to be taken except for its own respective gross
negligence or willful misconduct as determined by a final, non-appealable
judicial order of a court of competent jurisdiction. The Administrative Agent
and the Issuing Bank shall provide each Lender with copies of such documents
received from the Borrower as such Lender may reasonably request.
Section 9.7 Action by the Administrative Agent and the Issuing Bank.
(a) Each of the Administrative Agent and the Issuing Bank
shall be entitled to use its discretion with respect to exercising or refraining
from exercising any rights which may be vested in it by, and with respect to
taking or refraining from taking any action or actions which it may be able to
take under or in respect of, this Agreement, unless the Administrative Agent or
the Issuing Bank shall have been instructed by the Required Lenders to exercise
or refrain from exercising such rights or to take or refrain from taking such
action; provided that neither the Administrative Agent nor the Issuing Bank
shall exercise any rights under Section 8.2(a) hereof without the request of the
Required Lenders (or, where expressly required, all of the Lenders) unless time
is of the essence. Each of the Administrative Agent and the Issuing Bank shall
incur no liability under or in respect of this Agreement with respect to
anything which it may do or refrain from doing in the reasonable exercise of its
judgment or which may seem to
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it to be necessary or desirable in the circumstances, except for its own
respective gross negligence or willful misconduct as determined by a final,
non-appealable judicial order of a court having jurisdiction over the subject
matter.
(b) Neither the Administrative Agent nor the Issuing Bank
shall be liable to the Lenders, or to any Lender, or the Borrower or any its
Subsidiaries in acting or refraining from acting under this Agreement or any
other Loan Document in accordance with the instructions of the Required Lenders
(or, where expressly required, all of the Lenders), and any action taken or
failure to act pursuant to such instructions shall be binding on all Lenders,
except for its own respective gross negligence or willful misconduct as
determined by a final, non-appealable judicial order of a court having
jurisdiction over the subject matter. Neither the Administrative Agent nor the
Issuing Bank shall be obligated to take any action which is contrary to law or
which would in such Person's reasonable opinion subject such Person to
liability.
Section 9.8 Notice of Default or Event of Default. In the event that
the Administrative Agent, the Issuing Bank or any Lender shall acquire actual
knowledge, or shall have been notified, of any Default or Event of Default, the
Administrative Agent, the Issuing Bank or such Lender shall promptly notify the
Lenders (provided failure to give such notice shall not result in any liability
on the part of such Lender, the Issuing Bank or Administrative Agent), and the
Administrative Agent and the Issuing Bank shall take such action and assert such
rights under this Agreement and the other Loan Documents as the Required Lenders
shall request in writing, and neither the Administrative Agent nor the Issuing
Bank shall be subject to any liability by reason of its acting pursuant to any
such request. If the Required Lenders shall fail to request the Administrative
Agent and the Issuing Bank to take action or to assert rights under this
Agreement or any other Loan Documents in respect of any Default or Event of
Default within ten (10) days after their receipt of the notice of any Default or
Event of Default from the Administrative Agent, the Issuing Bank or any Lender,
or shall request inconsistent action with respect to such Default or Event of
Default, the Administrative Agent and the Issuing Bank, or either of them, may,
but shall not be required to, take such action and assert such rights (other
than rights under Article 8 hereof) as it deems in their or its respective
discretion to be advisable for the protection of the Lenders, except that, if
the Required Lenders have instructed the Administrative Agent and the Issuing
Bank not to take such action or assert such right, in no event shall the
Administrative Agent and the Issuing Bank act contrary to such instructions
unless time is of the essence.
Section 9.9 Responsibility Disclaimed. The Administrative Agent shall
not be under any liability or responsibility whatsoever as Administrative Agent:
(a) To the Borrower or any other Person as a consequence of
any failure or delay in performance by or any breach by, any Lender or Lenders
of any of its or their obligations under this Agreement;
(b) To any Lender or Lenders, as a consequence of any failure
or delay in performance by, or any breach by, (i) the Borrower of any of its
obligations under this
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Agreement or the Notes or any other Loan Document, or (ii) any Subsidiary of the
Borrower or any other obligor under any other Loan Document;
(c) To any Lender or Lenders, for any statements,
representations or warranties in this Agreement, or any other document
contemplated by this Agreement or any information provided pursuant to this
Agreement, any other Loan Document, or any other document contemplated by this
Agreement, or for the validity, effectiveness, enforceability or sufficiency of
this Agreement, the Notes, any other Loan Document, or any other document
contemplated by this Agreement; or
(d) To any Person for any act or omission other than that
arising from gross negligence or willful misconduct of the Administrative Agent
as determined by a final, non-appealable judicial order of a court of competent
jurisdiction.
Section 9.10 Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower) pro rata
according to their respective Commitment Ratios, from and against any and all
liabilities, obligations, losses (other than the loss of principal and interest
hereunder in the event of a bankruptcy or out-of-court `work-out' of the Loans),
damages, penalties, actions, judgments, suits, costs, expenses (including fees
and expenses of experts, agents, consultants and counsel), or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement, any other Loan Document, or any other document contemplated by this
Agreement or any other Loan Document or any action taken or omitted by the
Administrative Agent under this Agreement, any other Loan Document, or any other
document contemplated by this Agreement, except that no Lender shall be liable
to the Administrative Agent for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses, or
disbursements resulting from the gross negligence or willful misconduct of the
Administrative Agent as determined by a final, non-appealable judicial order of
a court having jurisdiction over the subject matter.
Section 9.11 Credit Decision. Each Lender represents and warrants to
each other and to the Administrative Agent that:
(a) In making its decision to enter into this Agreement and to
make its portion of the Loans, it has independently taken whatever steps it
considers necessary to evaluate the financial condition and affairs of the
Borrower, that it has made an independent credit judgment, and that it has not
relied upon the Administrative Agent or information provided by the
Administrative Agent (other than information provided to the Administrative
Agent by the Borrower and forwarded by the Administrative Agent to the Lenders);
and
(b) So long as any portion of the Loans remains outstanding or
such Lender has an obligation to make its portion of Advances hereunder, it will
continue to make its own independent evaluation of the financial condition and
affairs of the Borrower.
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Section 9.12 Successor Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving written notice
thereof to the Lenders and the Borrower and may be removed at any time for cause
by the Required Lenders. Upon any such resignation or removal, the Required
Lenders shall have the right to appoint a successor Administrative Agent which
appointment shall, prior to a Default, be subject to the consent of the
Borrower, acting reasonably. If (a) no successor Administrative Agent shall have
been so appointed by the Required Lenders or (b) if appointed, no successor
Administrative Agent shall have accepted such appointment within thirty (30)
days after the retiring Administrative Agent gave notice of resignation or the
Required Lenders removed the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent which shall be any Lender or a commercial bank organized
under the laws of the United States or any political subdivision thereof which
has combined capital and reserves in excess of $250,000,000.00 and which shall
be reasonably acceptable to the Borrower. Upon the acceptance of any appointment
as 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, duties and obligations of the retiring
Administrative Agent and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder and under the other Loan Documents.
After any retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent the provisions of this Article 9 shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Administrative Agent. In the event that the
Administrative Agent or any of its respective affiliates ceases to be a Lender
hereunder, such Person shall resign its agency hereunder.
Section 9.13 Delegation of Duties. The Administrative Agent may
execute any of its duties under the Loan Documents by or through agents or
attorneys selected by it using reasonable care, and shall be entitled to advice
of counsel concerning all matters pertaining to such duties.
Section 9.14 Lead Arranger and Book Manager, Syndication Agent;
Documentation Agent. Each of the Lead Arranger and Book Manager, the Syndication
Agent and the Documentation Agent in its capacity as Lead Arranger and Book
Manager, Syndication Agent and Documentation Agent, respectively, shall have no
duties or responsibilities under this Agreement or any other Loan Document.
ARTICLE 10
Change in Circumstances Affecting LIBOR Advances
Section 10.1 LIBOR Basis Determination Inadequate or Unfair. If with
respect to any proposed LIBOR Advance for any Interest Period, the
Administrative Agent determines after consultation with the Lenders that
deposits in dollars (in the applicable amount) are not being offered to each of
the Lenders in the relevant market for such Interest Period, the Administrative
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Agent shall forthwith give notice thereof to the Borrower and the Lenders,
whereupon until the Administrative Agent notifies the Borrower that the
circumstances giving rise to such situation no longer exist, the obligations of
any affected Lender to make its portion of such LIBOR Advances shall be
suspended.
Section 10.2 Illegality. If after the date hereof, the adoption of any
Applicable Law, or any change in any Applicable Law (whether adopted before or
after the Agreement Date), or any change in interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
with any directive (whether or not having the force of law) of any such
authority, central bank or comparable agency, shall make it unlawful or
impossible for any Lender to make, maintain or fund its portion of LIBOR
Advances, such Lender shall so notify the Administrative Agent, and the
Administrative Agent shall forthwith give notice thereof to the other Lenders
and the Borrower. Before giving any notice to the Administrative Agent pursuant
to this Section 10.2, such Lender shall designate a different lending office if
such designation will avoid the need for giving such notice and will not, in the
sole reasonable judgment of such Lender, be otherwise materially disadvantageous
to such Lender. Upon receipt of such notice, notwithstanding anything contained
in Article 2 hereof, the Borrower shall repay in full the then outstanding
principal amount of such Lender's portion of each affected LIBOR Advance,
together with accrued interest thereon, on either (a) the last day of the then
current Interest Period applicable to such affected LIBOR Advances if such
Lender may lawfully continue to maintain and fund its portion of such LIBOR
Advance to such day or (b) immediately if such Lender may not lawfully continue
to fund and maintain its portion of such affected LIBOR Advances to such day.
Concurrently with repaying such portion of each affected LIBOR Advance, the
Borrower may borrow a Base Rate Advance from such Lender, whether or not it
would have been entitled to effect such borrowing and such Lender shall make
such Advance, if so requested, in an amount such that the outstanding principal
amount of the affected Note held by such Lender shall equal the outstanding
principal amount of such Note or Notes immediately prior to such repayment.
Section 10.3 Increased Costs.
(a) If after the date hereof, the adoption of any Applicable
Law, or any change in any Applicable Law (whether adopted before or after the
Agreement Date), or any interpretation or change in interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof or compliance
by any Lender with any directive (whether or not having the force of law) of any
such authority, central bank or comparable agency:
(1) shall subject any Lender to any tax, duty or
other charge with respect to its obligation to make its portion of
LIBOR Advances, or its portion of existing Advances, or shall change
the basis of taxation of payments to any Lender of the principal of or
interest on its portion of LIBOR Advances or in respect of any other
amounts due under this Agreement, in respect of its portion of LIBOR
Advances or its
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obligation to make its portion of LIBOR Advances (except for changes in
the rate or method of calculation of tax on the revenues or net income
of such Lender); or
(2) shall impose, modify or deem applicable any
reserve (including, without limitation, any imposed by the Board of
Governors of the Federal Reserve System, but excluding any included in
an applicable Eurodollar Reserve Percentage), special deposit, capital
adequacy, assessment or other requirement or condition against assets
of, deposits with or for the account of, or commitments or credit
extended by, any Lender or shall impose on any Lender or the London
interbank borrowing market any other condition affecting its obligation
to make its portion of such LIBOR Advances or its portion of existing
Advances;
and the result of any of the foregoing is to increase the cost to such Lender of
making or maintaining any of its portion of LIBOR Advances, or to reduce the
amount of any sum received or receivable by such Lender under this Agreement or
under its Note with respect thereto, then, within ten (10) days after demand by
such Lender, the Borrower agrees to pay to such Lender such additional amount or
amounts as will compensate such Lender for such increased costs. Each Lender
will promptly notify the Borrower and the Administrative Agent of any event of
which it has knowledge, occurring after the date hereof, which will entitle such
Lender to compensation pursuant to this Section 10.3 and will designate a
different lending office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the sole reasonable judgment
of such Lender made in good faith, be otherwise disadvantageous to such Lender.
(b) Any Lender claiming compensation under this Section 10.3
shall provide the Borrower with a written certificate setting forth the
additional amount or amounts to be paid to it hereunder and calculations
therefor in reasonable detail. Such certificate shall be presumptively correct
absent manifest error. In determining such amount, such Lender may use any
reasonable averaging and attribution methods. If any Lender demands compensation
under this Section 10.3, the Borrower may at any time, upon at least five (5)
Business Days' prior notice to such Lender, prepay in full such Lender's portion
of the then outstanding LIBOR Advances, together with accrued interest thereon
to the date of prepayment, along with any reimbursement required under Section
2.10 hereof. Concurrently with prepaying such portion of LIBOR Advances the
Borrower may, whether or not then entitled to make such borrowing, borrow a Base
Rate Advance, or a LIBOR Advance not so affected, from such Lender, and such
Lender shall, if so requested, make such Advance in an amount such that the
outstanding principal amount of the affected Note or Notes held by such Lender
shall equal the outstanding principal amount of such Note or Notes immediately
prior to such prepayment.
Section 10.4 Effect On Other Advances. If notice has been given
pursuant to Section 10.1, 10.2 or 10.3 hereof suspending the obligation of any
Lender to make its portion of any type of LIBOR Advance, or requiring such
Lender's portion of LIBOR Advances to be repaid or prepaid, then, unless and
until such Lender notifies the Borrower that the circumstances giving rise to
such repayment no longer apply, all amounts which would otherwise be made by
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such Lender as its portion of LIBOR Advances shall, unless otherwise notified by
the Borrower, be made instead as Base Rate Advances.
ARTICLE 11
Miscellaneous
Section 11.1 Notices.
(a) Except as otherwise expressly provided herein, all notices
and other communications under this Agreement and the other Loan Documents
(unless otherwise specifically stated therein) shall be in writing and shall be
deemed to have been given three (3) Business Days after deposit in the mail,
designated as certified mail, return receipt requested, postage-prepaid, or one
(1) Business Day after being entrusted to a reputable commercial overnight
delivery service for next day delivery, or when sent on a Business Day prior to
5:00 p.m. (Atlanta, Georgia time) by telecopy addressed to the party to which
such notice is directed at its address determined as provided in this Section
11.1. All notices and other communications under this Agreement shall be given
to the parties hereto at the following addresses:
(i) If to the Borrower, to it at:
Xxxx Communications Systems, Inc.
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxxx
2300 International Tower
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxx, Esq.
Telecopy: (000) 000-0000
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(ii) If to the Administrative Agent, to it at:
Bank of America, N.A.
Agency Services
NC1-001-15-04
Independence Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Telecopy: (000) 000-0000
with a copy to:
Bank of America, N.A.
Financial Strategies Group
000 Xxxxxxxxx Xxxxxx, X.X., 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxx and Xxxxx Xxxxxxx
Telecopy: (000) 000-0000 (Xxxx)
(000) 000-0000 (Xxxxxxx)
and with a copy to:
Powell, Goldstein, Xxxxxx & Xxxxxx LLP
Sixteenth Floor
191 Peachtree Street, N.E.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
(iii) If to the Lenders, to them at the addresses set
forth on Schedule 1 hereto.
The failure to provide copies shall not affect the validity of the notice given
to the primary recipient.
(b) Any party hereto may change the address to which notices
shall be directed under this Section 11.1 by giving ten (10) days' written
notice of such change to the other parties.
Section 11.2 Expenses. The Borrower will promptly pay, or reimburse:
(a) all reasonable out-of-pocket expenses of the
Administrative Agent in connection with the preparation, negotiation, execution
and delivery of this Agreement and the other Loan Documents, and the
transactions contemplated hereunder and thereunder and the
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making of the initial Advance hereunder (whether or not such Advance is made),
including, but not limited to, the reasonable fees and disbursements of Powell,
Goldstein, Xxxxxx & Xxxxxx LLP, special counsel for the Administrative Agent;
and
(b) all reasonable out-of-pocket costs and expenses of the
Administrative Agent and the Lenders of enforcement under this Agreement or the
other Loan Documents and all reasonable out-of-pocket costs and expenses of
collection if an Event of Default occurs in the payment of the Notes, which in
each case shall include reasonable fees and out-of-pocket expenses of counsel
for the Administrative Agent and the Lenders.
Section 11.3 Waivers. The rights and remedies of the Administrative
Agent and the Lenders under this Agreement and the other Loan Documents shall be
cumulative and not exclusive of any rights or remedies which they would
otherwise have. No failure or delay by the Administrative Agent, the Required
Lenders, or the Lenders, or any of them, in exercising any right, shall operate
as a waiver of such right. The Administrative Agent and the Lenders expressly
reserve the right to require strict compliance with the terms of this Agreement
in connection with any future funding of a Request for Advance. In the event the
Lenders decide to fund a Request for Advance at a time when the Borrower is not
in strict compliance with the terms of this Agreement, such decision by the
Lenders shall not be deemed to constitute an undertaking by the Lenders to fund
any further Request for Advance or preclude the Lenders or the Administrative
Agent from exercising any rights available under the Loan Documents or at law or
equity. Any waiver or indulgence granted by the Administrative Agent, the
Lenders, or the Required Lenders, shall not constitute a modification of this
Agreement or any other Loan Document, except to the extent expressly provided in
such waiver or indulgence, or constitute a course of dealing at variance with
the terms of this Agreement or any other Loan Document such as to require
further notice of their intent to require strict adherence to the terms of this
Agreement or any other Loan Document in the future.
Section 11.4 Set-Off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon the occurrence of an Event of Default and during the continuation thereof,
the Administrative Agent and each of the Lenders are hereby authorized by the
Borrower at any time or from time to time, without notice to the Borrower or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and to apply any and all deposits (general or special, time or
demand, including, but not limited to, Indebtedness evidenced by certificates of
deposit, in each case whether matured or unmatured) and any other Indebtedness
at any time held or owing by any Lender or Administrative Agent, to or for the
credit or the account of the Borrower or any of its Subsidiaries, against and on
account of the obligations and liabilities of the Borrower to the Lenders and
the Administrative Agent, including, without limitation, all Obligations and any
other claims of any nature or description arising out of or connected with this
Agreement, the Notes or any other Loan Document, irrespective of whether (a) any
Lender or Administrative Agent shall have made any demand hereunder or (b) any
Lender or Administrative Agent shall have declared the principal of and interest
on the Loans and other amounts due hereunder to be due and payable as permitted
by Section 8.2 hereof and although such obligations and liabilities or any of
them shall be contingent or unmatured. Upon direction by the Administrative
Agent
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with the consent of all of the Lenders each Lender holding deposits of the
Borrower or any of its Subsidiaries shall exercise its set-off rights as so
directed.
Section 11.5 Assignment.
(a) The Borrower may not assign or transfer any of its rights
or obligations hereunder, under the Notes or under any other Loan Document
without the prior written consent of each Lender.
(b) Each Lender may sell (i) assignments of any amount of its
interest hereunder to any other Lender, or (ii) assignments or participations of
up to one hundred percent (100%) of its interest hereunder to (A) one or more
wholly-owned Affiliates of such Lender (provided that, if such Affiliate is not
a financial institution, such Lender shall be obligated to repurchase such
assignment if such Affiliate is unable to honor its obligations hereunder) or to
an Approved Fund, or (B) any Federal Reserve Bank as collateral security
pursuant to Regulation A of the Board of Governors of the Federal Reserve System
and any Operating Circular issued by such Federal Reserve Bank, provided that no
such assignment shall relieve such Lender of its rights and obligations
hereunder, or (C) in the case of any Lender that is a fund that invests in bank
loans, such Lender may assign or pledge all or any portion of its Loans and
Notes to any trustee for, or any other representative of, holders of obligations
owed or securities issued, by such fund, as security for such obligations or
securities; provided that any foreclosure or similar action by such trustee or
representatives shall be subject to the provisions of this Section 11.5(b)
concerning assignments; and provided, that a copy of any such assignment or
participation is provided to the Administrative Agent prior to, or simultaneous
with, the effectiveness thereof.
(c) Each of the Lenders may at any time enter into assignment
agreements or participations with one or more other banks or other Persons
pursuant to which each Lender may assign or participate its interest under this
Agreement and the other Loan Documents, including, its interest in any
particular Advance or portion thereof, provided, that (1) all assignments (other
than assignments described in clause (b) hereof) shall be in minimum principal
amounts of the lesser of (x) the entire remaining amount of such Lender's Loans
and Commitments, (y) $1,000,000.00 and (z) such other amount as may be agreed to
in writing by the Administrative Agent and Borrower, and (2) all assignments
(other than assignments described in clause (b) hereof) and participations
hereunder shall be subject to the following additional terms and conditions:
(i) No assignment (except assignments permitted in
Section 11.5(b) hereof) shall be sold without the prior consent of the
Administrative Agent and prior to the occurrence and continuation of an
Event of Default, the consent of the Borrower, which consents shall not
be unreasonably withheld or delayed;
(ii) Any Person purchasing a participation or an
assignment of any portion of the Loans from any Lender shall be
required to represent and warrant that its purchase shall not
constitute a "prohibited transaction" (as defined in Section 4.1(m)
hereof);
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(iii) The Borrower, the Lenders, and the Administrative
Agent agree that assignments permitted hereunder (including the
assignment of any Advance or portion thereof) may be made with all
voting rights, and shall be made pursuant to an Assignment and
Assumption Agreement. An administrative fee of $3,500.00 shall be
payable to the Administrative Agent by the assigning Lender at the time
of any assignment under this Section 11.5(c);
(iv) No participation agreement shall confer any rights
under this Agreement or any other Loan Document to any purchaser
thereof, or relieve any issuing Lender from any of its obligations
under this Agreement, and all actions hereunder shall be conducted as
if no such participation had been granted; provided, however, that any
participation agreement may confer on the participant the right to
approve or disapprove decreases in the interest rate, increases in the
principal amount of the Loans participated in by such participant,
decreases in fees, extensions of the Revolving Loan Maturity Date, the
Term Loan A Maturity Date or the Term Loan B Maturity Date, as
applicable, or other principal payment date for the Loans or of the
scheduled reduction of the Revolving Loan Commitment and releases of
Collateral;
(v) Each Lender agrees to provide the Administrative
Agent and the Borrower with prompt written notice of any issuance of
participations in or assignments of its interests hereunder;
(vi) No assignment, participation or other transfer of
any rights hereunder or under the Notes shall be effected that would
result in any interest requiring registration under the Securities Act
of 1933, as amended, or qualification under any state securities law;
(vii) No such assignment may be made to (A) any bank or
other financial institution (excluding funds) unless (1) such bank or
other financial institution either (x) has a minimum capital and
surplus of $500,000,000.00, or (y) is "adequately capitalized" (as such
term is defined in 12 USCA Section 1831(b)(1)(B) as in effect on the
Agreement Date) and (2) a receiver or conservator (including, without
limitation, the Federal Deposit Insurance Corporation, the Resolution
Trust Company or the Office of Thrift Supervision) has not been
appointed with respect to such bank or other financial institution, (B)
any fund unless such fund either (1) invests in commercial loans or (2)
has total assets in excess of $125,000,000.00, or (C) any other Person
unless such Person either (1) is an "accredited investor" (as defined
in Regulation D of the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder) or (2) has total assets
in excess of $100,000,000.00;
(viii) If applicable, each Lender shall, and shall cause
each of its assignees to, provide to the Administrative Agent on or
prior to the effective date of any assignment an appropriate Internal
Revenue Service form as required by Applicable Law supporting such
Lender's or assignee's position that no withholding by the Borrower or
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the Administrative Agent for United States income tax payable by such
Bank or assignee in respect of amounts received by it hereunder is
required. For purposes of this Agreement, an appropriate Internal
Revenue Service form shall mean Form 1001 (Ownership Exemption or
Reduced Rate Certificate of the United States Department of Treasury),
or Form 4224 (Exemption from Withholding of Tax on Income Effectively
Connected with the Conduct of a Trade or Business in the United
States), or any successor or related forms adopted by the relevant
United States taxing authorities; and
(ix) Any Lender making an assignment of its rights and
obligations under the Revolving Loan Commitment shall also make an
assignment of an equal percentage of its outstanding Revolving Loans.
(d) Except as specifically set forth in Section 11.5(b) or (c)
hereof, nothing in this Agreement or the Notes, expressed or implied, is
intended to or shall confer on any Person other than the respective parties
hereto and thereto and their successors and assignees permitted hereunder and
thereunder any benefit or any legal or equitable right, remedy or other claim
under this Agreement or the Notes.
(e) In the case of any participation, all amounts payable by
the Borrower under the Loan Documents shall be calculated and made in the manner
and to the parties hereto as if no such participation had been sold.
(f) The provisions of this Section 11.5 shall not apply to any
purchase of participations among the Lenders pursuant to Section 2.11 hereof.
(g) The Administrative Agent, acting, for this purpose only,
as agent of the Borrower shall maintain, at no extra charge or cost to the
Borrower, a register (the "Register") at the address to which notices to the
Administrative Agent are to be sent under Section 11.1 hereof on which Register
the Administrative Agent shall enter the name, address and taxpayer
identification number (if provided) of the registered owner of the Loans
evidenced by a Registered Note or, upon the request of the registered owner, for
which a Registered Note has been requested. A Registered Note and the Loans
evidenced thereby may be assigned or otherwise transferred in whole or in part
only by registration of such assignment or transfer of such Registered Note and
the Loans evidenced thereby on the Register. Any assignment or transfer of all
or part of such Loans and the Registered Note evidencing the same shall be
registered on the Register only upon compliance with the other provisions of
this Section 11.5 and surrender for registration of assignment or transfer of
the Registered Note evidencing such Loans, duly endorsed by (or accompanied by a
written instrument of assignment or transfer duly executed by) the Registered
Noteholder thereof, and thereupon one or more new Registered Notes in the same
aggregate principal amount shall be issued to the designated assignee(s) or
transferee(s) and, if less than the aggregate principal amount of such
Registered Notes is thereby transferred, the assignor or transferor. Prior to
the due presentment for registration of transfer of any Registered Note, the
Borrower and the Administrative Agent shall treat the Person in whose name such
Loans and the Registered Note evidencing the same is registered as the owner
thereof
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for the purpose of receiving all payments thereon and for all other purposes,
notwithstanding any notice to the contrary.
Section 11.6 Accounting Principles. All references in this Agreement
to GAAP shall be to such principles as in effect from time to time. All
accounting terms used herein without definition shall be used as defined under
GAAP. All references to the financial statements of the Borrower and to its
Total Debt, Senior Debt and Fixed Charges, and other such terms shall be deemed
to refer to such items of the Borrower and its Subsidiaries, on a fully
consolidated basis.
Section 11.7 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
such separate counterparts shall together constitute but one and the same
instrument.
Section 11.8 Governing Law. This Agreement and the Notes shall be
construed in accordance with and governed by the internal laws of the State of
Georgia applicable to agreements made and to be performed in Georgia. If any
action or proceeding shall be brought by the Administrative Agent or any Lender
hereunder or under any other Loan Document in order to enforce any right or
remedy under this Agreement or under any Note or any other Loan Document, the
Borrower hereby consents and will, and the Borrower will cause each Subsidiary
to, submit to the jurisdiction of any state or federal court of competent
jurisdiction sitting within the area comprising the Northern District of Georgia
on the date of this Agreement. The Borrower, for itself and on behalf of its
Subsidiaries, hereby agrees that, to the extent permitted by Applicable Law,
service of the summons and complaint and all other process which may be served
in any such suit, action or proceeding may be effected by mailing by registered
mail a copy of such process to the offices of the Borrower at the address given
in Section 11.1 hereof and that personal service of process shall not be
required. Nothing herein shall be construed to prohibit service of process by
any other method permitted by law, or the bringing of any suit, action or
proceeding in any other jurisdiction. The Borrower agrees that final judgment in
such suit, action or proceeding shall be conclusive and may be enforced in any
other jurisdiction by suit on the judgment or in any other manner provided by
Applicable Law.
Section 11.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 11.10 Interest.
(a) In no event shall the amount of interest due or payable
hereunder or under the Notes exceed the maximum rate of interest allowed by
Applicable Law, and in the event any such payment is inadvertently made by the
Borrower or inadvertently received by the Administrative Agent or any Lender,
then such excess sum shall be credited as a payment of principal, unless the
Borrower shall notify the Administrative Agent or such Lender, in writing, that
it elects to have such excess sum returned forthwith. It is the express intent
hereof that the Borrower not pay and the Administrative Agent and the Lenders
not receive, directly or
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indirectly in any manner whatsoever, interest in excess of that which may
legally be paid by the Borrower under Applicable Law.
(b) Notwithstanding the use by the Lenders of the Base Rate
and the LIBOR as reference rates for the determination of interest on the Loans,
the Lenders shall be under no obligation to obtain funds from any particular
source in order to charge interest to the Borrower at interest rates related to
such reference rates.
Section 11.11 Table of Contents and Headings. The Table of Contents
and the headings of the various subdivisions used in this Agreement are for
convenience only and shall not in any way modify or amend any of the terms or
provisions hereof, nor be used in connection with the interpretation of any
provision hereof.
Section 11.12 Amendment and Waiver. Any term of this Agreement or of
the Notes may be amended and the observance of any term of this Agreement or of
the Notes may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of the Borrower
and the Required Lenders or, if there are only two (2) Lenders each of which has
a Commitment Ratio of eighty percent (80%) or less of the Loans, with the
written consent of the Borrower and both Lenders; provided, however, that no
such amendment or waiver or other action shall, without the prior written
consent of all of the Lenders or the holders of all of the Notes at the time
outstanding, (a) extend the maturity or reduce the principal amount of, or
reduce the rate or extend the time of payment of interest on, or reduce the
amount or extend the time of payment of any principal installment of, any Note,
(b) reduce the amount or extend the time of payment of the commitment fees, (c)
change the Commitments or the Commitment Ratio of any Lender (other than any
change in Commitments or Commitment Ratio resulting from the sale of a
participation in or assignment of any Lender's interest in the Commitments and
Loans in accordance with subsection 11.5 or resulting from an increase in
Commitments pursuant to Section 2.16 of the Prior Loan Agreement, which appears
in this Agreement as the Term B Loan Commitment), (d) change the percentage
referred to in the definition of "Required Lenders" or reduce the number of
Lenders required to approve any waiver, amendment or modification, (e) amend
this Section 11.12, (f) amend or waive compliance with Section 2.7(b), (g)
release any collateral or any guaranty for the Loans except in connection with a
sale permitted pursuant to Section 7.4, (h) amend or waive any of the conditions
precedent set forth in Section 3 for the making of the initial Loans on the
Closing Date, or (i) extend the expiration date of any outstanding Letter of
Credit or postpone the reimbursement obligations of the Borrower in respect of
any Letter of Credit or reduce the fees payable by the Borrower in respect of
any Letter of Credit; and provided, further, however, that notwithstanding the
foregoing provisions of this Section 11.12, this Agreement and the Notes may be
amended or modified in the manner contemplated by Section 11.5 for the purpose
of permitting any Lender to assign its interest, rights and obligations
hereunder to another Person if the appropriate assignment agreement or
counterparts thereof are executed by the Borrower (to the extent required), the
Administrative Agent and the appropriate Lender assignor and assignee. Any
amendment or waiver effected in accordance with this Section 11.12 shall be
binding upon each holder of any Note at the time outstanding, each future holder
of any Note and the Borrower.
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Section 11.13 Entire Agreement. Except as otherwise expressly provided
herein, this Agreement and the other documents described or contemplated herein
will embody the entire agreement and understanding among the parties hereto and
thereto and supersede all prior agreements and understandings relating to the
subject matter hereof and thereof.
Section 11.14 Other Relationships. No relationship created hereunder
or under any other Loan Document shall in any way affect the ability of the
Administrative Agent and each Lender to enter into or maintain business
relationships with the Borrower or any of its Affiliates beyond the
relationships specifically contemplated by this Agreement and the other Loan
Documents.
Section 11.15 Directly or Indirectly. If any provision in this
Agreement refers to any action taken or to be taken by any Person, or which such
Person is prohibited from taking, such provision shall be applicable whether
such action is taken directly or indirectly by such Person, whether or not
expressly specified in such provision.
Section 11.16 Reliance on and Survival of Various Provisions. All
covenants, agreements, statements, representations and warranties made herein or
in any certificate delivered pursuant hereto (i) shall be deemed to have been
relied upon by the Administrative Agent and each of the Lenders notwithstanding
any investigation heretofore or hereafter made by them, and (ii) shall survive
the execution and delivery of the Notes and shall continue in full force and
effect so long as any Note is outstanding and unpaid. Any right to
indemnification hereunder, including, without limitation, rights pursuant to
Sections 2.10, 2.12, 2.14, 5.11, 10.3 and 11.2 hereof, shall survive the
termination of this Agreement and the payment and performance of all
Obligations.
Section 11.17 Senior Debt. The Obligations are secured by the Security
Documents and are intended by the parties hereto to be in parity with the
Interest Rate Hedge Agreements and senior in right of payment to all other
Indebtedness of the Borrower.
Section 11.18 Obligations Several. The obligations of the
Administrative Agent and each of the Lenders hereunder are several, not joint.
ARTICLE 12
Waiver of Jury Trial
Section 12.1 Waiver of Jury Trial. THE BORROWER, FOR ITSELF AND ON
BEHALF OF EACH OF ITS SUBSIDIARIES AND THE ADMINISTRATIVE AGENT AND THE LENDERS
HEREBY AGREE, TO THE EXTENT PERMITTED BY LAW, TO WAIVE AND HEREBY WAIVE THE
RIGHT TO A TRIAL BY JURY IN ANY COURT AND IN ANY ACTION OR PROCEEDING OF ANY
TYPE IN WHICH THE BORROWER, ANY OF THE BORROWER'S SUBSIDIARIES, ANY OF THE
LENDERS, THE ADMINISTRATIVE AGENT OR ANY OF THEIR RESPECTIVE SUCCESSORS OR
ASSIGNS IS A PARTY, AS
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TO ALL MATTERS AND THINGS ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT,
ANY OF THE NOTES OR THE OTHER LOAN DOCUMENTS AND THE RELATIONS AMONG THE PARTIES
LISTED IN THIS SECTION 12.1. EXCEPT AS PROHIBITED BY LAW, EACH PARTY TO THIS
AGREEMENT WAIVES ANY RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION
REFERRED TO IN THIS SECTION, ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH PARTY
TO THIS AGREEMENT (i) CERTIFIES THAT NEITHER ANY REPRESENTATIVE, AGENT OR
ATTORNEY OF THE ADMINISTRATIVE AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR ANY LENDER WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (ii) ACKNOWLEDGES THAT
IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
THE PROVISIONS OF THIS SECTION HAVE BEEN FULLY DISCLOSED BY AND TO THE PARTIES
AND THE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY
AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS
SECTION WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed by their duly authorized officers, all as of the day
and year first above written.
BORROWER: XXXX COMMUNICATIONS SYSTEMS, INC.
By: /s/ XXXXX X. XXXX
--------------------------------
Name: XXXXX X. XXXX
---------------------
Title: V.P. - C.F.O.
--------------------
ADMINISTRATIVE AGENT, BANK OF AMERICA, N.A., as Administrative
DOCUMENTATION AGENT, Agent and as a Lender
SYNDICATION AGENT
AND LENDERS:
By: /s/ XXXXX X. XXXXXXX
--------------------------------
Name: XXXXX X. XXXXXXX
---------------------
Title: SENIOR VICE PRES.
--------------------
XXXX COMMUNICATIONS SYSTEMS, INC.
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 1
109
KEY CORPORATE CAPITAL INC., as Documentation
Agent and as a Lender
By: /s/ XXXXXXX X. XXXXXX
--------------------------------
Name: XXXXXXX X. XXXXXX
---------------------
Title: SENIOR VICE PRES.
--------------------
XXXX COMMUNICATIONS SYSTEMS, INC.
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 2
110
FIRST UNION NATIONAL BANK, as Syndication
Agent and as a Lender
By: /s/ XXXXXXX X. XXXXX
--------------------------------
Name: XXXXXXX X. XXXXX
---------------------
Title: VICE PRESIDENT
--------------------
XXXX COMMUNICATIONS SYSTEMS, INC.
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 3
111
BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC., as a Lender
By: /s/ XXXX X. XXXXX
------------------------------------
Name: XXXX X. XXXXX
-------------------------
Title: VICE PRESIDENT
------------------------
By: /s/ XXXXXXX X. XxXXXXXX, XX.
------------------------------------
Name: XXXXXXX X. XxXXXXXX, XX.
-------------------------
Title: SR. ASSOCIATE
------------------------
XXXX COMMUNICATIONS SYSTEMS, INC.
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 4
000
XXX XXXX XX XXX XXXX COMPANY, INC., as a
Lender
By: /s/ XXXXXX X. XXXX, XX.
----------------------------------
Name: XXXXXX X. XXXX, XX.
-----------------------
Title: SENIOR VICE PRES.
----------------------
XXXX COMMUNICATIONS SYSTEMS, INC.
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 5
000
XXX XXXX XX XXXX XXXXXX, as a Lender
By: /s/ XXXXXXX X. XXXXXXXXXX, XX.
--------------------------------------
Name: XXXXXXX X. XXXXXXXXXX, XX.
---------------------------
Title: AUTHORIZED SIGNATORY
--------------------------
XXXX COMMUNICATIONS SYSTEMS, INC.
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 6
114
THE BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as a Lender
By: /s/ XXXXX X. XXXXXX
--------------------------------
Name: XXXXX X. XXXXXX
---------------------
Title: VICE PRESIDENT
--------------------
XXXX COMMUNICATIONS SYSTEMS, INC.
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 7
115
CANADIAN IMPERIAL BANK OF COMMERCE, as a
Lender
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: XXXXXXX X. XXXXXX
---------------------------
Title: EXECUTIVE DIRECTOR
CIBC WORLD MARKETS CORP.
AS AGENT
--------------------------
XXXX COMMUNICATIONS SYSTEMS, INC.
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 8
116
THE CIT GROUP/EQUIPMENT FINANCING, INC., as
a Lender
By: /s/ X.X. XXXXXX
---------------------------------
Name: X.X. XXXXXX
----------------------
Title: ASSISTANT VICE PRES.
---------------------
XXXX COMMUNICATIONS SYSTEMS, INC.
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 9
117
COOPERATIEVE CENTRALE
RAIFFEINSEN-BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH, as a Lender
By: /s/ MICHIEL V.M. VAN DER VOORT
--------------------------------------
Name: MICHIEL V.M. VAN DER VOORT
---------------------------
Title: VICE PRESIDENT
--------------------------
By: /s/ XXXXXX XXXXX
--------------------------------------
Name: XXXXXX XXXXX
---------------------------
Title: SENIOR VICE PRES.
--------------------------
XXXX COMMUNICATIONS SYSTEMS, INC.
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 10
118
FREMONT INVESTMENT & LOAN, as a Lender
By: /s/ XXXXXXX XXXXXXX
--------------------------------
Name: XXXXXXX XXXXXXX
---------------------
Title: VICE PRESIDENT
--------------------
XXXX COMMUNICATIONS SYSTEMS, INC.
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 11
119
XXXXXX FINANCIAL, INC., as a Lender
By: /s/ XXXXXX X. XXXX
-------------------------------
Name: XXXXXX X. XXXX
--------------------
Title: ASST. VICE PRES.
-------------------
XXXX COMMUNICATIONS SYSTEMS, INC.
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 12
120
[THIS PAGE INTENTIONALLY LEFT BLANK]
XXXX COMMUNICATIONS SYSTEMS, INC.
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 13
121
XXXXXXX XXXXX SENIOR FLOATING RATE FUND II,
INC., as a Lender
By: /S/ XXXXXX XXXXXX
-------------------------------
Name: XXXXXX XXXXXX
--------------------
Title: AUTHORIZE SIGNATORY
--------------------
XXXX COMMUNICATIONS SYSTEMS, INC.
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 14
122
XXXXXX XXXXXXX XXXX XXXXXX PRIME INCOME
TRUST, as a Lender
By: /S/ XXXXX XXXXXXX
--------------------------------
Name: XXXXX XXXXXXX
---------------------
Title: AUTHORIZED SIGNATORY
--------------------
XXXX COMMUNICATIONS SYSTEMS, INC.
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 15
123
[THIS PAGE INTENTIONALLY LEFT BLANK]
XXXX COMMUNICATIONS SYSTEMS, INC.
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 16
124
PPM SPYGLASS FUNDING TRUST, as a Lender
By: /s/ XXXXX X. XXXXXX
--------------------------------
Name: XXXXX X. XXXXXX
---------------------
Title: AUTHORIZED AGENT
--------------------
XXXX COMMUNICATIONS SYSTEMS, INC.
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 17
125
SUNTRUST BANK, CENTRAL FLORIDA, N.A., as a
Lender
By: /s/ W. XXXXX XXXXXX
--------------------------------
Name: W. XXXXX XXXXXX
---------------------
Title: VICE PRESIDENT
--------------------
XXXX COMMUNICATIONS SYSTEMS, INC.
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 18
126
TORONTO DOMINION (TEXAS), INC., as a Lender
By: /s/ XXXX X. XXXXX
--------------------------------
Name: XXXX X. XXXXX
---------------------
Title: VICE PRESIDENT
--------------------
XXXX COMMUNICATIONS SYSTEMS, INC.
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 19
127
WACHOVIA BANK, N.A., as a Lender
By: /s/ XXXX X. XXX
---------------------------------
Name: XXXX X. XXX
----------------------
Title: ASSISTANT VICE PRES.
---------------------
XXXX COMMUNICATIONS SYSTEMS, INC.
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 20
