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CREDIT AGREEMENT
DATED AS OF AUGUST 23, 2005
by and among
XXXXXXXXXX COMMUNICATIONS COMPANY
as the Borrower
THE FINANCIAL INSTITUTIONS PARTY HERETO AS THE BANKS
and
BANK OF AMERICA, N.A.
as the Administrative Agent
and
DEUTSCHE BANK SECURITIES INC.
as the Syndication Agent
BANC OF AMERICA SECURITIES LLC,
Joint Lead Arranger and Joint Bookrunner
DEUTSCHE BANK SECURITIES INC.,
Joint Lead Arranger and Joint Bookrunner
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TABLE OF CONTENTS
Page
Section 1. DEFINITIONS AND RULES OF INTERPRETATION............................1
Section 1.1 Definitions...................................................1
Section 1.2 Rules of Interpretation......................................17
Section 1.3 Accounting Terms.............................................17
Section 2. THE REVOLVING CREDIT FACILITY.....................................18
Section 2.1 Commitment to Lend...........................................18
Section 2.2 Commitment Fee...............................................18
Section 2.3 Reduction of Commitments.....................................18
Section 2.4 The Notes....................................................19
Section 2.5 Requests for Loans...........................................19
Section 2.6 Funds for Loans..............................................19
Section 2.7 Mandatory Repayments and Prepayments of Loans................20
Section 2.8 Optional Repayments of Loans.................................21
Section 2.9 Sharing of Payments..........................................21
Section 2.10 Increase of Commitments......................................22
Section 3. INTEREST; CERTAIN GENERAL PROVISIONS..............................23
Section 3.1 Interest on Loans; Payment...................................23
Section 3.2 Interest Period Options......................................23
Section 3.3 Computation of Interest and Fees.............................24
Section 3.4 Payments Generally; Agent's Clawback.........................24
Section 3.5 Taxes........................................................25
Section 3.6 Illegality...................................................26
Section 3.7 Inability to Determine Rates.................................27
Section 3.8 Increased Costs..............................................27
Section 3.9 Compensation for Losses......................................28
Section 3.10 Mitigation Obligations.......................................29
Section 3.11 Survival.....................................................29
Section 3.12 Late Fee.....................................................29
Section 3.13 Default Rate.................................................29
Section 3.14 Application of Payments......................................29
Section 3.15 Payment Date Adjustment......................................30
Section 4. SECURITY..........................................................30
Section 5. REPRESENTATIONS AND WARRANTIES....................................30
Section 5.1 Corporate Authority..........................................30
Section 5.2 Governmental Approvals.......................................31
Section 5.3 Title to Properties; Leases..................................31
Section 5.4 Financial Statements and Projections.........................31
Section 5.5 No Material Changes, Etc.....................................32
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Section 5.6 Franchises, Patents, Copyrights, Etc.........................32
Section 5.7 No Litigation................................................32
Section 5.8 No Materially Adverse Contracts, Etc.........................33
Section 5.9 Compliance with Other Instruments, Laws, Etc.................33
Section 5.10 Tax Status...................................................33
Section 5.11 No Event of Default..........................................33
Section 5.12 Holding Company and Investment Company Acts..................33
Section 5.13 Certain Transactions.........................................34
Section 5.14 ERISA Compliance.............................................34
Section 5.15 Purpose Credit...............................................35
Section 5.16 Environmental Compliance.....................................35
Section 5.17 Labor and Employment.........................................36
Section 5.18 Capital Structure............................................36
Section 5.19 Disclosure...................................................37
Section 5.20 License and Approvals........................................37
Section 5.21 Senior Debt..................................................37
Section 6. AFFIRMATIVE COVENANTS OF THE BORROWER.............................38
Section 6.1 Punctual Payment.............................................38
Section 6.2 Maintenance of Office........................................38
Section 6.3 Records and Accounts.........................................38
Section 6.4 Financial Statements, Certificates and Information...........38
Section 6.5 Corporate Existence; Maintenance of Properties...............39
Section 6.6 Insurance....................................................40
Section 6.7 Taxes, Etc...................................................40
Section 6.8 Inspection of Properties and Books...........................41
Section 6.9 Compliance with Laws, Contracts, Licenses, and Permits.......41
Section 6.10 Pension Plans................................................42
Section 6.11 Further Assurance............................................42
Section 6.12 Notices......................................................43
Section 6.13 Labor and Employment.........................................43
Section 6.14 Environmental Events.........................................43
Section 6.15 Notification of Claims.......................................43
Section 6.16 Use of Proceeds..............................................43
Section 6.17 Notice of Litigation, Judgment and Material Events...........44
Section 6.18 Identification of Subsidiaries; Provision of Collateral......44
Section 7. CERTAIN NEGATIVE COVENANTS OF THE BORROWER........................44
Section 7.1 Restrictions on Indebtedness.................................44
Section 7.2 Restrictions on Liens........................................46
Section 7.3 Restrictions on Investments..................................47
Section 7.4 Restricted Payments..........................................48
Section 7.5 Mergers, Acquisitions, Dispositions of Assets................49
Section 7.6 Sale and Leaseback...........................................49
Section 7.7 Federal Regulations..........................................50
Section 7.8 Restrictions on Ability to Repay Loans.......................50
Section 7.9 Employee Benefit Plans.......................................50
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Section 7.10 Compliance with Environmental Laws...........................50
Section 7.11 No Amendments, Etc...........................................51
Section 7.12 Capital Stock................................................51
Section 8. FINANCIAL COVENANTS OF THE BORROWER...............................51
Section 8.1 Consolidated EBITDA to Consolidated Total Interest Expense...51
Section 8.2 Total Leverage Ratio.........................................51
Section 8.3 Senior Leverage Ratio........................................52
Section 8.4 Fixed Charge Coverage........................................52
Section 9. CLOSING CONDITIONS................................................52
Section 9.1 Corporate Action.............................................52
Section 9.2 Loan Documents...............................................52
Section 9.3 Opinion of Borrower's Legal Counsel..........................52
Section 9.4 Certified Copies of Charter Documents........................52
Section 9.5 Incumbency Certificate.......................................52
Section 9.6 Good Standing Certificates...................................53
Section 9.7 UCC Search Results and Filings...............................53
Section 9.8 Pledge Stock or Membership Interests.........................53
Section 9.9 Closing Fees.................................................53
Section 9.10 Consents.....................................................53
Section 9.11 Consent of Banks.............................................53
Section 10. CONDITIONS TO ALL BORROWINGS......................................53
Section 10.1 Representations True; No Event of Default....................53
Section 10.2 No Legal Impediment..........................................54
Section 10.3 Governmental Regulation......................................54
Section 10.4 Proceedings and Documents....................................54
Section 11. EVENTS OF DEFAULT; ACCELERATION...................................54
Section 11.1 Events of Default............................................54
Section 11.2 Remedies.....................................................57
Section 11.3 Distribution of Collateral Proceeds..........................57
Section 12. SETOFF............................................................58
Section 13. THE AGENT.........................................................58
Section 13.1 Appointment and Authorization of Agent.......................58
Section 13.2 Rights as a Bank.............................................59
Section 13.3 Exculpatory Provisions.......................................59
Section 13.4 Reliance by Agent............................................60
Section 13.5 Delegation of Duties.........................................60
Section 13.6 Resignation of Agent.........................................60
Section 13.7 Non-Reliance on Agent and Other Banks........................61
Section 13.8 No Other Duties, Etc.........................................61
Section 13.9 Agent May File Proofs of Claim...............................61
Section 13.10 Guaranty Matters.............................................61
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Section 13.11 Collateral Matters...........................................62
Section 14. EXPENSES..........................................................63
Section 15. PAYMENTS SET ASIDE................................................65
Section 16. SURVIVAL OF COVENANTS, ETC........................................65
Section 17. SUCCESSORS AND ASSIGNS; ASSIGNMENT AND PARTICIPATION..............65
Section 18. NOTICES, ETC......................................................68
Section 19. GOVERNING LAW.....................................................69
Section 20. HEADINGS..........................................................69
Section 21. COUNTERPARTS......................................................70
Section 22. ENTIRE AGREEMENT, ETC.............................................70
Section 23. WAIVER OF JURY TRIAL..............................................70
Section 24. CONSENTS, AMENDMENTS, WAIVERS, ETC................................70
Section 25. FCC APPROVAL......................................................71
Section 26. SEVERABILITY......................................................71
Section 27. CONFIDENTIALITY...................................................71
Section 28. USA PATRIOT Act Notice............................................72
Section 29. DESIGNATION AS SENIOR DEBT........................................72
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CREDIT AGREEMENT
This CREDIT AGREEMENT is made as of the 23rd day of August, 2005, by
and among XXXXXXXXXX COMMUNICATIONS COMPANY, a Delaware corporation having its
principal place of business at 000 00xx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx,
X.X. 00000 (the "Borrower"), the financial institutions listed on Schedule 1.1
hereto (the "Banks"), BANK OF AMERICA, N.A., as Administrative Agent for the
Banks (the "Agent"), and DEUTSCHE BANK SECURITIES, INC., as Syndication Agent
(the "Syndication Agent").
Section 1. DEFINITIONS AND RULES OF INTERPRETATION.
Section 1.1 Definitions. The following terms shall have the meanings
set forth in this ss.1 or elsewhere in the provisions of this Credit Agreement
referred to below:
ACC 7 3/4% Senior Subordinated Notes. The 7 3/4% Senior Subordinated
Notes due December 15, 2012 of the Borrower issued pursuant to the ACC 7 3/4%
Senior Subordinated Indenture.
ACC 7 3/4% Senior Subordinated Indenture. The Indenture, dated as of
December 20, 2002, by and among the Borrower and State Street Bank and Trust
Company, as Trustee, governing the ACC 7 3/4% Senior Subordinated Notes, as
supplemented by the Supplemental Indenture dated as of February 6, 2003, by and
among the Borrower and U.S. Bank National Association, as successor Trustee.
Administrative Questionnaire. An Administrative Questionnaire in a
form supplied to a Bank by the Agent.
Affiliate. Any Person that would be considered to be an affiliate of
the Borrower under Rule 144(a) of the Rules and Regulations of the Securities
and Exchange Commission, as in effect on the date hereof, if the Borrower were
issuing securities.
Agent. Bank of America, N.A. acting as agent for the Banks.
Agent's Special Counsel. Xxxxxxx Procter LLP of Boston, Massachusetts,
or such other counsel as may be approved by the Agent.
Alternate Base Rate. For any day a rate per annum equal to the higher
of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in
effect for such day as publicly announced from time to time by Bank of America
as its "prime rate." The "prime rate" is a rate set by Bank of America based
upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
Applicable Law. Means and includes statutes and rules and regulations
thereunder and interpretations thereof by any Governmental Authority charged
with the administration or the
interpretation thereof, and orders, requests, directives, instructions and
notices of any Governmental Authority.
Applicable Margins and Commitment Fee Rate. With respect to any fiscal
quarter of the Borrower, the Eurodollar Applicable Margin, the Alternate Base
Rate Applicable Margin and the Commitment Fee Rate shall be the applicable
percentages set forth below opposite the Total Leverage Ratio determined for the
most recently ended fiscal quarter for which the Borrower has delivered
financial statements pursuant to ss.6.4(a) or (b):
Alternate
Eurodollar Base Rate Commitment
Total Applicable Applicable Fee
Leverage Ratio Margin Margin Rate
-------------- ---------- ---------- ----------
Greater than or equal to 6.5:1.0 1.50% 0.25% 0.375%
Less than 6.5:1.00 but 1.25% 0.00% 0.300%
greater than or equal to 5.5:1.0
Less than 5.5:1.0 but 1.00% 0.00% 0.250%
greater than or equal to 4.5:1.0
Less than 4.5:1.0 0.75% 0.00% 0.250%
provided, that if the Borrower's financial statements are not furnished to the
Banks pursuant to ss.6.4(a) or (b) hereof within five (5) Business Days after
the relevant period of time specified in ss.6.4, the Eurodollar Applicable
Margin with respect to all Eurodollar Rate Loans shall be 1.50%, the Alternate
Base Rate Applicable Margin with respect to all Base Rate Loans shall be 0.25%
and the Commitment Fee Rate shall be 0.375% during the period commencing on the
date such statements are due and (provided that such financial statements are
subsequently furnished to the Banks) ending on the date two (2) days following
the delivery to the Agent of the financial statements to be furnished pursuant
to ss.6.4(a) or (b) for the appropriate period. For the period from the Closing
Date through the date the Borrower's financial statements for the quarter ended
June 30, 2005 are furnished to the Banks pursuant to ss.6.4(b), the Eurodollar
Applicable Margin shall be 1.50%, the Alternate Base Rate Applicable Margin
shall be 0.25% and the Commitment Fee Rate shall be 0.375%.
Approval. Relative to the Borrower and its Subsidiaries, each approval,
consent, filing or registration by or with any Governmental Authority or any
creditor or shareholder of the Borrower or any of its Subsidiaries necessary to
authorize or permit the execution, delivery or performance by the Borrower or
any such Subsidiary of this Credit Agreement or any Security Document to which
the Borrower or such Subsidiary is a party or the validity or enforceability of
the Credit Agreement or any such Security Document against the Borrower or any
such Subsidiary.
Assignment and Assumption. See ss.17(a).
Balance Sheet Date. September 30, 2004.
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Bank of America. Bank of America, N.A. and its successors.
Banks. The financial institutions listed on Schedule 1.1, and any of
their successors and assigns.
Base Rate Loans. All Loans interest in respect of which is determined
with reference to the Alternate Base Rate.
Borrower. Xxxxxxxxxx Communications Company, a Delaware corporation.
Borrowing. A borrowing consisting of simultaneous Loans of the same
Type and, in the case of Eurodollar Rate Loans, having the same Interest Period
made by each of the Banks pursuant to ss. 2.1
Business Day. Any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the laws of, or are in fact
closed in, the state where Agent's office is located and, if such day relates to
any Eurodollar Rate Loan, means any such day on which dealings in Dollar
deposits are conducted by and between banks in the London interbank eurodollar
market.
Capital Assets. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises, licenses and good will); provided that Capital Assets
shall not include any item customarily charged directly to expense or
depreciated over a useful life of twelve (12) months or less in accordance with
GAAP.
Capital Expenditures. Amounts paid or indebtedness incurred by the
Borrower or any of its Subsidiaries in connection with the purchase or lease by
the Borrower or any of its Subsidiaries of Capital Assets that would be required
to be capitalized and shown on the balance sheet of such Person in accordance
with GAAP.
Capitalized Leases. Leases under which the Borrower or any of its
Subsidiaries is the lessee or obligor, the discounted future rental payment
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with GAAP.
CERCLA. See ss.5.16.
Change in Law. The occurrence, after the date of this Agreement, of any
of the following: (a) the adoption or taking effect of any law, rule, regulation
or treaty, (b) any change in any law, rule, regulation or treaty or in the
administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) to any Bank by any Governmental
Authority.
Change of Control. Shall mean (a) any transaction (including a merger
or consolidation) the result of which is that any Person other than Xxx X.
Xxxxxxxxxx, all other persons to whom Xxx X. Xxxxxxxxxx is related by blood,
adoption or marriage, all trusts solely for the benefit of one or more of the
Persons described in the foregoing clauses, and all charitable trusts or
not-for-profit corporations formed by Xxx X. Xxxxxxxxxx under and described in
Section 501(c)(3) of the Internal
3
Revenue Code of 1986, as amended, (the "Principals") acquires, directly or
indirectly, more than fifty percent (50%) of the total voting power of all
classes of voting stock of Borrower, (b) any transaction (including a merger or
consolidation) the result of which is that any Person other than a Principal has
a sufficient number of its or their nominees elected to the Board of Directors
of Borrower or any entity directly or indirectly controlling Borrower such that
such nominees so elected (whether new or continuing as directors) shall
constitute a majority of the Board of Directors of Borrower or such entity, as
the case may be, or (c) the sale of more than fifty percent (50%) of the capital
stock or assets of Borrower to any Person other than a Principal, as an entirety
or substantially as an entirety in one transaction or a series of related
transactions or (d) the sale of the broadcasting property known as of the date
hereof as WJLA-TV.
Closing Date. August 23, 2005.
Closing Fee. See ss. 9.9.
Code. The Internal Revenue Code of 1986, as amended and in effect from
time to time.
Collateral. Any and all assets and rights and interests in or to
property of Borrower and each of the other Loan Parties, whether real or
personal, tangible or intangible, in which a lien is granted or purported to be
granted pursuant to the Security Documents.
Collateral Assignment of Proceeds. The Collateral Assignment of
Proceeds and Security Agreement, substantially in the form of Exhibit I hereto,
to be executed and delivered by the Borrower and certain of its Subsidiaries on
the Closing Date.
Commitment. With respect to each Bank, the amount set forth in the
column labeled Commitment opposite such Bank's name on Schedule 1.1 hereto, as
the same may be reduced from time to time.
Commitment Fee. See ss.2.2.
Commitment Percentage. With respect to each Bank, the percentage set
forth opposite such Bank's name on Schedule 1.1 thereto, as the same may be
amended.
Communications Act. The Federal Communications Act of 1934, as
amended, and the rules and regulations of the FCC thereunder as in effect from
time to time.
Communications Regulatory Authority. Any communications regulatory
commission, agency, department, board or authority (including, without
limitation, the FCC).
Compliance Certificate. See ss.6.4 (c)
Consolidated or consolidated. With reference to any term defined
herein, shall mean that term as applied to the accounts of the Borrower and its
Subsidiaries, consolidated in accordance with GAAP.
Consolidated EBITDA. For any period, an amount equal to (a) the sum of
(i) Consolidated Net Income for such period, plus (ii) depreciation,
amortization and all other non-
4
cash charges for such period, plus (iii) to the extent deducted in the
calculation of Consolidated Net Income, Consolidated Total Interest Expense and
income taxes paid or payable for such period, plus (iv) extraordinary losses
less (b) extraordinary gains for such period, determined in accordance with
GAAP, to the extent not deducted in the calculation of Consolidated Net Income.
For purposes of determining the Consolidated EBITDA of the Borrower and
its Subsidiaries for any period, there shall be excluded from Consolidated
EBITDA all EBITDA attributable to any Station or other property sold or disposed
of by the Borrower and its Subsidiaries other than in the ordinary course of
business during such period as if such Station or other property were not owned
at any time by the Borrower and its Subsidiaries during such period.
For purposes of determining "EBITDA" in connection with any Permitted
Acquisition, EBITDA for any applicable period shall be adjusted in accordance
with Regulation S-X (a) to give effect to the consummation of a Permitted
Acquisition on a pro forma basis as if such Permitted Acquisition occurred on
the first day of such period and (b) to reflect certain expense deductions in
connection with such Permitted Acquisition reasonably acceptable to the Agent.
For all purposes of this Credit Agreement, the "EBITDA" of the Borrower
or attributable to any Station or all Stations or other property for any period
shall be determined in a manner consistent in all relevant respects with the
method used to determine Consolidated EBITDA, but on a non-consolidated basis.
The determination of the "EBITDA" of any Station or all Stations shall account
for only those items included in the definition of Consolidated EBITDA that are
directly attributable to such Station or all Stations and the operation thereof
and shall not include, for any period prior to the acquisition by the Borrower
or any Subsidiary of any Station, any corporate overhead or similar charges of
the prior owner of such Station.
Consolidated Excess Cash Flow. With respect to the Borrower and its
Subsidiaries and any particular fiscal period, an amount equal to (a)
Consolidated EBITDA (without taking account of any adjustments required by the
second paragraph and the third paragraph of the definition thereof) for such
period, less (b) the sum of (i) Consolidated Total Interest Expense for such
period, plus (ii) any mandatory scheduled repayments of principal on any
Indebtedness (other than Indebtedness in respect of the Loans) of the Borrower
or any of its Subsidiaries paid or due and payable during such period, other
than (A) any repayment of principal of any Indebtedness from the proceeds of
Indebtedness permitted hereby, and (B) any repayments of principal of
Indebtedness from the proceeds of any sale of assets to the extent that the gain
from any such sale is not included in Consolidated Net Income pursuant to clause
(a) of the definition thereof, plus (iii) any repayments of principal of the
Loans during such period, but only to the extent that such repayments were (A)
required to reduce the outstanding principal of the Loans to the amount of the
Total Commitment, or (B) accompanied by corresponding permanent reductions in
the Total Commitment, plus (iv) cash payments made during such period on account
of Capital Expenditures (excluding Capital Expenditures financed from the
proceeds of permitted Indebtedness or insurance or through Capitalized Leases),
plus (v) federal and state income taxes paid during such period.
5
Consolidated Net Income. For any period, the net income of the Borrower
and its Subsidiaries for such period, after deduction of all expenses, taxes,
and other proper charges for such period, determined on a consolidated basis in
accordance with GAAP, after eliminating therefrom (a) all extraordinary
nonrecurring gains or losses, including, without limitation, any gains (or
losses) from any Sale of any Station or other assets, and (b) non-cash dividends
or non-cash distributions from Investments, but without any reduction on account
of any minority interest in a Majority-Owned Subsidiary.
Consolidated Total Interest Expense. For any period, the aggregate
amount of interest required to be paid or payable in cash by the Borrower or any
of its Subsidiaries during such period on all Funded Debt of the Borrower or any
of its Subsidiaries outstanding during all or any part of such period, whether
such interest was or is required to be reflected as an item of expense or
capitalized, including payments consisting of interest in respect of Capitalized
Leases and including Commitment Fees payable pursuant to ss.2.2.
For purposes of determining the Consolidated Total Interest Expense for
any period, any acquisition or Sale of any Station or other property of the
Borrower or any of its Subsidiaries which occurred during such period as
permitted pursuant to ss.7.5 shall be deemed to have occurred immediately prior
to such period and Consolidated Total Interest Expense shall be determined as if
(a) any Indebtedness incurred in connection with such acquisition or repaid in
connection with such Sale (other than any such repayment of Loans if such
repayment was not accompanied by a simultaneous reduction in like amount of the
Total Commitment) was incurred or repaid, as the case may be, immediately prior
to such period and (b) the interest rate payable with respect to any increase in
Indebtedness in connection with such acquisition which was outstanding during
all or any part of such period was at all times equal to the rate of interest
payable with respect to such Indebtedness on the last day of the period for
which Consolidated Total Interest Expense is to be determined or, if earlier,
the last day on which such Indebtedness was outstanding.
Continuation or Conversion Notice. A notice given by the Borrower to
the Agent in accordance with ss.3.2 pursuant to which the Borrower notifies the
Agent of its election to continue a Eurodollar Rate Loan for a particular
Interest Period, or to convert any Base Rate Loans to Eurodollar Rate Loans for
a particular Interest Period.
Credit Agreement. This Credit Agreement, including the Schedules and
Exhibits hereto.
Debtor Relief Laws. The Bankruptcy Code of the United States, and all
other liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief Laws of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors
generally.
Default. See ss.11.
Defaulting Bank. Any Bank that (a) has failed to fund any portion of
the Loans required to be funded by it hereunder within one Business Day of the
date required to be funded by it hereunder, (b) has otherwise failed to pay over
to Agent or any other Bank any other amount
6
required to be paid by it hereunder within one Business Day of the date when
due, unless the subject of a good faith dispute, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding.
Dollars. Dollars in lawful currency of the United States of America.
Drawdown Date. The date on which any Loan is made or is to be made in
accordance with ss.2.1.
Eligible Assignee. (a) A Bank; (b) an affiliate of a Bank; and (c) any
other Person (other than a natural person) approved by (i) Agent, and (ii)
unless an Event of Default has occurred and is continuing, Borrower (each such
approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, "Eligible Assignee" shall not include Borrower or
any of Borrower's Affiliates or Subsidiaries.
Environmental Laws. See ss.5.16.
Environmental Liability. Any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Substances, (c)
exposure to any Hazardous Substances, (d) the release or threatened release of
any Hazardous Substances into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
ERISA. The Employee Retirement Income Security Act of 1974, as amended.
ERISA Affiliate. Any Person which is considered a single employer with
the Borrower under ss.4001(b) of ERISA or part of the same "controlled group" as
the Borrower for purposes of ss.302(d)(8)(c) of ERISA.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of ss.4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been waived
by the regulations thereunder, or an event or condition which presents a
material risk of a plan termination or any other event that may cause the
Borrower or an ERISA Affiliate to incur liability or have a lien imposed on its
assets under Title IV of ERISA.
Escrow Proceeds. Proceeds released from escrow under the Pledge and
Escrow Agreement.
Eurodollar Base Rate. See the definition of Eurodollar Rate.
Eurodollar Rate. For any Interest Period with respect to a Eurodollar
Rate Loan, a rate per annum determined by Agent pursuant to the following
formula:
Eurodollar Rate = Eurodollar Base Rate
------------------------------------
1.00 - Eurodollar Reserve Percentage
7
Where,
Eurodollar Base Rate means, for such Interest Period (rounded upwards,
as necessary, to the nearest 1/100 of 1%) the rate per annum equal to
the British Bankers Association LIBOR Rate ("BBA LIBOR"), as published
by Reuters (or other commercially available source providing quotations
of BBA LIBOR as designated by Agent from time to time) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period, for Dollar deposits (for delivery on the first
day of such Interest Period) with a term equivalent to such Interest
Period. If such rate is not available at such time for any reason, then
the "Eurodollar Base Rate" for such Interest Period (rounded upwards,
as necessary, to the nearest 1/100 of 1%) shall be the rate per annum
determined by Agent to be the rate at which deposits in Dollars for
delivery on the first day of such Interest Period in same day funds in
the approximate amount of the Eurodollar Rate Loan being made,
continued or converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America's London
Branch to major banks in the London interbank eurodollar market at
their request at approximately 11:00 a.m. (London time) two Business
Days prior to the commencement of such Interest Period.
Eurodollar Reserve Percentage means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to
five decimal places) in effect on such day, whether or not applicable
to any Bank, under regulations issued from time to time by the Board of
Governors of the Federal Reserve System of the United States for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"). The Eurodollar Rate for each outstanding Eurodollar Rate
Loan shall be adjusted automatically as of the effective date of any
change in the Eurodollar Reserve Percentage.
Eurodollar Rate Loan means a Loan that bears interest at a rate based
on the Eurodollar Rate.
Event of Default. See ss.11.
FCC. The United States Federal Communications Commission (or any
successor agency, commission, bureau, department or other political subdivision
of the United States).
FCC License. Any radio, television or other license, permit,
certificate of compliance, franchise, approval or authorization granted or
issued by the FCC.
Federal Funds Rate. For any day, the rate per annum equal to the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the
8
next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by Agent.
Fixed Charges. With respect to any date of determination, the sum of
(i) Total Debt Service, plus (ii) Capital Expenditures (excluding Capital
Expenditures financed from the proceeds of permitted Indebtedness or insurance
or through Capitalized Leases) made by the Borrower and its Subsidiaries during
the period of four (4) consecutive fiscal quarters immediately preceding such
date of determination, plus (iii) the aggregate amount of cash taxes paid by the
Borrower and its Subsidiaries during the period of four (4) fiscal quarters
ended on such date of determination, after excluding therefrom cash taxes paid
during such period with respect to the gain from any Sale of one or more
Stations during such period or any prior period.
Funded Debt. In relation to any Person at any time, all Indebtedness
for borrowed money (including all notes payable and drafts accepted representing
extensions of credit and all obligations evidenced by bonds, debentures, notes
or other similar instruments on which interest charges are customarily paid) of
such Person, all guaranty or other contingent obligations of such Person in
respect of any such Indebtedness of any other Person, the liquidation value of
all preferred stock at such time (other than any preferred stock which is not
redeemable at the option of the holder), all obligations of such Person
constituting Capitalized Lease Obligations and all obligations of such Person
for the deferred purchase price of property or services (except, in any event,
trade payables, payment obligations in respect of film license contracts of any
Station, in each case arising in the ordinary course of business, and
obligations under leases which do not constitute Capitalized Lease Obligations).
GAAP. Generally accepted accounting principles in the United States set
forth in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
Governmental Authority. Any foreign, federal, state, regional, local,
municipal or other government, or any department, commission, board, bureau,
agency, public authority or instrumentality thereof, or any court or arbitrator.
Guaranty Agreement. The Guaranty Agreement substantially in the form of
Exhibit H attached hereto, to be executed and delivered to the Agent by the
Subsidiaries on the Closing Date and as otherwise required hereunder.
Guaranteed Pension Plan. Any pension plan maintained by the Borrower or
any ERISA Affiliate, or to which the Borrower or any ERISA Affiliate
contributes, that is subject to Title IV of ERISA or ss.412 of the Code or
ss.302 of ERISA.
Hazardous Substances. See ss.5.16.
9
Indebtedness. All obligations, contingent and otherwise, that in
accordance with GAAP would be classified upon the obligor's balance sheet as
liabilities, including in any event and whether or not so classified: (a) all
debt and similar monetary obligations, whether direct or indirect; (b) all
liabilities secured by any mortgage, pledge, security interest, lien, charge, or
other encumbrance existing on property owned or acquired subject thereto,
whether or not the liability secured thereby shall have been assumed; (c) all
redemption obligations in respect of any redeemable preferred stock (calculated
at the liquidation value thereof); and (d) all guarantees, endorsements and
other contingent obligations whether direct or indirect in respect of
indebtedness of others, including any obligation to supply funds to or in any
manner to invest in, directly or indirectly, the debtor, to purchase
indebtedness, or to assure the owner of indebtedness against loss, through an
agreement to purchase goods, supplies, or services for the purpose of enabling
the debtor to make payment of the indebtedness held by such owner or otherwise,
and the obligations to reimburse the issuer in respect of any letters of credit.
Interest Payment Date. (a) As to any Loan other than a Base Rate Loan,
the last day of each Interest Period applicable to such Loan and the Maturity
Date; provided, however, that if any Interest Period for a Eurodollar Rate Loan
exceeds three months, the respective dates that fall every three months after
the beginning of such Interest Period shall also be Interest Payment Dates; and
(b) as to any Base Rate Loan, the last day of each March, June, September and
December and the Maturity Date.
Interest Period. As to each Eurodollar Rate Loan, the period commencing
on the date such Eurodollar Rate Loan is disbursed or converted to or continued
as a Eurodollar Rate Loan and ending on the date one, two, three or six months
thereafter, as selected by Borrower in its Loan Request or Continuation or
Conversion Notice; provided that:
(i) any Interest Period that would otherwise end on a day that
is not a Business Day shall be extended to the next succeeding Business
Day unless such Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity
Date.
Investments. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock, partnership or
membership interests, or Indebtedness of, or for loans, advances, capital
contributions or transfers of property to, or in respect of any guaranties (or
other commitments as described under Indebtedness) or obligations of, any
Person. In determining the aggregate amount of Investments outstanding at any
particular time: (a) the amount of any Investment represented by a guaranty
shall be taken at not less than the principal amount of the obligations
guaranteed and still outstanding; (b) there shall be deducted in respect of each
such Investment any cash amount received as a return of capital (but only by
repurchase, redemption, retirement, repayment, liquidating dividend or
liquidating distribution);
10
(c) there shall not be deducted in respect of any Investment any amounts
received as earnings on such Investment, whether as dividends, interest or
otherwise; and (d) there shall not be deducted from the aggregate amount of
Investments any decrease in the value thereof.
Laws. Collectively, all international, foreign, federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, requests, licenses, authorizations and permits
of, and agreements with, any Governmental Authority, in each case whether or not
having the force of law.
Loans. Collectively, the loans advanced to the Borrower by the Banks
pursuant to this Credit Agreement.
Loan Documents. This Credit Agreement, the Notes, the Guaranty
Agreements and the Security Documents.
Loan Parties. Collectively, Borrower and each Person (other than the
Agent or any Bank) executing a Loan Document, including, without limitation,
each such Person executing the Guaranty and the Pledge Agreement.
Loan Request. See ss.2.5.
Majority Banks. As of any date of determination, Banks having more than
66-2/3% of the Total Commitment or, if the Commitments of each Bank to make
Loans have been terminated pursuant to ss. 11.1, Banks holding in the aggregate
more than 66-2/3% of the outstanding principal amount of the Notes; provided
that the Commitment of, and the portion of the outstanding principal amount of
the Notes held or deemed held by, any Defaulting Bank shall be excluded for
purposes of making a determination of Majority Banks.
Majority-Owned Subsidiaries. Collectively, (i) Harrisburg Television,
Inc. and (ii) TV Alabama Inc.
Maturity Date. August 23, 2011, or such earlier date on which the
outstanding Loans hereunder are declared due and payable pursuant to the terms
of this Credit Agreement or on which the Total Commitment is terminated.
Media Business. Any business involved in the provision and/or
distribution of news, information or entertainment content or services supported
by advertising and/or subscription-based revenue.
Moody's. Xxxxx'x Investors Service, Inc. or any successor rating
agency.
Multiemployer Plan. Any multiemployer plan within the meaning of
ss.3(37) of ERISA maintained or contributed to by any of the Borrowers or any
ERISA Affiliate.
Net Debt Proceeds. With respect to the issuance of any instruments or
other securities evidencing Indebtedness of the Borrower or any of its
Subsidiaries that is permitted by this
11
Agreement, the gross amount of cash proceeds received by the Borrower or any of
its Subsidiaries in respect of such issuance, less (to the extent applicable and
without duplication) reasonable sales and underwriting commissions, investment
banking, accounting and legal fees and disbursements, and printing expenses and
governmental fees incurred in connection with such issuance and payable by the
issuer of such instruments or other securities.
Net Disposition Proceeds. One hundred percent (100%) of the cash
proceeds from any Sale of assets or other property other than any Sale of assets
or other property permitted by ss.7.5(b), less to the extent applicable and
without duplication (a) customary and reasonable amounts paid or payable in
respect of brokerage fees incurred by the Borrower or any of its Subsidiaries in
connection with such Sale, (b) other reasonable transaction costs incurred by
the Borrower or any of its Subsidiaries in connection with such Sale, and (c)
sales or other gross receipts, income, or property transfer taxes, payable in
cash by the Borrower or any of its Subsidiaries relating to such Sale; provided,
that Net Disposition Proceeds shall not include the first $500,000 of such
proceeds received by the Borrower and its Subsidiaries in any calendar year. If
the Borrower or any of its Subsidiaries receives any promissory notes or other
instruments as part of the consideration for such Sale or if payment in cash of
any portion of the consideration for such Sale is otherwise deferred, Net
Disposition Proceeds shall (to the extent such cash payments would constitute
Net Disposition Proceeds hereunder) be deemed to include any cash payments in
respect of such notes or instruments or otherwise deferred portion of such
consideration when and to the extent received by such Person. If the Borrower or
any of its Subsidiaries receives any property (other than cash) as part of the
consideration for any Sale, Net Disposition Proceeds from such Sale shall (to
the extent such cash payments would constitute Net Disposition Proceeds
hereunder) be deemed to include any cash payments in respect of such property
when and to the extent received by such Person.
Net Insurance Proceeds. The aggregate amount of proceeds received by
the Borrower or any of its Subsidiaries in excess of $500,000 from any claim
under a property or casualty insurance policy in connection with any property or
casualty damage or loss, provided, that, so long as no Default or Event of
Default has occurred and is continuing, such proceeds may be used within three
hundred sixty four (364) days after receipt to repair or replace the property
damaged or otherwise to acquire assets useful in the business of the Borrower or
any of its Subsidiaries.
Net Securities Proceeds. With respect to the issuance by the Borrower
or any of its Subsidiaries of any capital stock or partnership or membership
interests, as applicable, (other than the issuance and sale by the Borrower of
capital stock of the Borrower to Xxx X. Xxxxxxxxxx or any Person of which Xxx X.
Xxxxxxxxxx owns, directly or indirectly, 100% of the outstanding capital stock
or partnership or membership interests, as applicable, and the issuance and sale
by any Subsidiary of the Borrower of capital stock or partnership or membership
interests, as applicable, of such Subsidiary to the Borrower or to any other
Subsidiary of the Borrower), the gross amount of cash consideration payable to
or receivable by the Borrower or any of its Subsidiaries in respect of such
issuance, less (to the extent applicable and without duplication) reasonable
sales and underwriting commissions, investment banking, accounting and legal
fees and disbursements, printing expenses, rating agency, stock exchange,
trustee fees and similar reasonable and customary fees, and any governmental
fees incurred in connection with such issuance and payable by the issuer of such
capital stock or partnership or membership interests,
12
as applicable. If the Borrower or any of its Subsidiaries receives any property
(other than cash) as part of the consideration for any such issuance, Net
Securities Proceeds shall be deemed to include any cash payments in respect of
such property when and to the extent received by the Borrower or any of its
Subsidiaries.
Note Record. The grid attached to a Note, or the continuation of such
grid, or any other similar record maintained by the Bank holding such Note with
respect to any Loan.
Notes. The promissory notes issued pursuant to ss.2.4 of this Credit
Agreement evidencing the Loans.
Obligations. All advances to, and debts, liabilities, obligations and
covenants of, any Loan Party arising under any Loan Document or otherwise with
respect to any Loan, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or
hereafter arising and including interest and fees that accrue after the
commencement by or against any Loan Party or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding.
Outstanding or outstanding. With respect to the Loans, the aggregate
unpaid principal thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation created by ss.4002 of
ERISA and any successor entity or entities having similar responsibilities.
Permitted Acquisition. Any acquisition of a Station or another Media
Business by the Borrower or any of its Subsidiaries so long as, in each case:
(a) on or prior to the closing date of such acquisition, the
Borrower shall have delivered to the Agent and the Banks a certificate
of the President or Chief Financial Officer stating that, (i) based on,
among other things, operating and financial projections and pro-forma
financial statements delivered to the Agent and the Banks and
certified by the President or Chief Financial Officer of the Borrower
as being consistent with historical results and results which can be
expected for the future, immediately after giving effect to the
Permitted Acquisition (including the making of any Loans and the
incurrence or assumption of any Indebtedness in connection with such
Permitted Acquisition) all covenants contained herein will be satisfied
on a pro forma basis through the period ending twelve months after the
date of the Permitted Acquisition and (ii) upon consummation of such
acquisition the ratio of (A) Consolidated EBITDA for the most recent
four (4) fiscal quarter period for which financial statements of the
Borrower have been delivered to the Agent, less EBITDA of the Borrower
and its Subsidiaries attributable to Stations (determined as provided
in the fourth paragraph of the definition of Consolidated EBITDA) for
such period to (B) Consolidated EBITDA for such period shall not exceed
0.25:1.
(b) no Default or Event of Default is continuing immediately
prior to such Permitted Acquisition, and no Default or Event of Default
would result therefrom; and
13
(c) if such Permitted Acquisition will be made through a new
Subsidiary of the Borrower, the Borrower shall (i) have pledged the
capital stock or partnership or membership interests, as applicable, of
such Subsidiary to the Agent pursuant to the Pledge Agreement and (ii)
promptly cause the Subsidiary to guaranty the Obligations of the
Borrower under the Loan Documents pursuant to a guaranty agreement
substantially in the form of the Guaranty Agreement.
Permitted Dispositions. Means the sale or transfer by the Borrower,
directly or indirectly through one or more of its Subsidiaries, from time to
time, of shares of capital stock or units of partnership or membership
interests, as applicable, of any of its Subsidiaries (other than Majority-Owned
Subsidiaries) representing in the aggregate twenty percent (20%) or less of the
outstanding capital stock or units of partnership or membership interests of any
such Subsidiary.
Permitted Liens. Liens, security interests and other encumbrances
permitted by ss.7.2.
Permitted Refinancing Indebtedness. Any renewals, extensions,
substitutions, refinancings or replacements of the Subordinated Debt Documents,
including any successive extensions, renewals, substitutions, refinancings or
replacements so long as (i) the Maturity of such Indebtedness is not earlier
than six months after the Maturity Date, (ii) the new Indebtedness shall have
terms and conditions of default which are no more restrictive than those set
forth in the Subordinated Debt Documents, (iii) the new Indebtedness shall have
the same terms and conditions of subordination as set forth in the Subordination
Documents, (iv) the rate of interest payable on such Indebtedness shall not
exceed the rate of interest currently payable under the Subordinated Debt
Documents, and (v) the aggregate amount of Indebtedness represented thereby is
not increased by such renewal, extension, substitution, refinancing or
replacement (other than to finance reasonable finance fees, pre-payment premiums
and expenses associated with such refinancing) provided, that, upon Agent's and
Majority Banks' consent, the aggregate amount of such Indebtedness may be
increased, provided, further, that concurrently with the incurrence of such
Indebtedness the aggregate amount of Indebtedness which Borrower or any of its
Subsidiaries may incur for Permitted Acquisition pursuant to Section
7.1(j)(ii)(B) shall be reduced by the amount of any such increase in
Indebtedness hereunder.
Person. Any individual, corporation, partnership, limited liability
company, trust, unincorporated association, business, or other legal entity, and
any government or any governmental agency or political subdivision thereof.
Pledge Agreement. The Pledge Agreement, substantially in the form of
Exhibit D attached hereto, to be executed and delivered to the Agent by
Xxxxxxxxxx Group, Inc., the Borrower and certain of its Subsidiaries on the
Closing Date.
Proceeds. Collectively, Net Debt Proceeds, Net Disposition Proceeds,
Net Insurance Proceeds, and Net Securities Proceeds.
Projections. See ss.5.4.2.
Proprietary Rights. See ss.5.6.
14
Real Estate. All real property at any time owned or leased by the
Borrower or any of its Subsidiaries.
Register. See ss.17(c).
Related Parties. With respect to any Person, such Person's affiliates
and the partners, directors, officers, employees, agents and advisors of such
Person and of such Person's affiliates.
Responsible Officer. The chief executive officer, president, chief
financial officer or treasurer of a Loan Party. Any document delivered hereunder
that is signed by a Responsible Officer of a Loan Party shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or
other action on the part of such Loan Party and such Responsible Officer shall
be conclusively presumed to have acted on behalf of such Loan Party.
Restricted Payments. In relation to the Borrower or any of its
Subsidiaries,
(a) the declaration or payment of any dividend on or in
respect of any shares of any class of capital stock or units of
partnership or membership interests of a limited liability company, as
applicable, of such Person, other than dividends payable solely in
shares of common stock or units of partnership or membership interests
of a limited liability company, as applicable, of such Person; the
purchase, redemption, or other retirement of any shares of any class of
capital stock or units of partnership or membership interests of a
limited liability company, as applicable, of such Person, directly or
indirectly through a Subsidiary or otherwise; the return of capital by
such Person to its shareholders or other equity holders as such; or any
other distribution on or in respect of any shares of any class of
capital stock or units of partnership or membership interests of a
limited liability company, as applicable, of such Person;
(b) any payment or prepayment by such Person (whether of
principal, premium, interest or other sum) of or on account of, any
payment or other distribution on account of the redemption, repurchase,
defeasance, retirement or other acquisition for value of, or any
sinking fund payment in respect of Indebtedness of such Person which is
subordinated to the Obligations other than the repayment, redemption,
repurchase or defeasance of Indebtedness of such Person by such Person
solely from the proceeds of Permitted Refinancing Indebtedness arising
in connection with the refinancing of such Indebtedness (provided that
the Borrower may pay any premium on any such Indebtedness out of cash
on hand or borrowings hereunder); and
(c) any loan or advance by such Person to, or any other
Investment by such Person in, any Affiliate of such Person (other than
the Borrower or any of its Subsidiaries); and
(d) any other payment or distribution (whether by cash,
obligations, securities or other property) to any Affiliate of such
Person (other than the Borrower or any of its Subsidiaries).
For purposes of this Credit Agreement and the other Loan Documents, the term
"Restricted Payments" shall not include any salaries, bonuses, advances or other
compensation to officers,
15
directors and employees made by the Borrower or any of its Subsidiaries in the
ordinary course of its business and any payments in respect of transactions
described in any of clauses (1), (2), (4) and (5) of the last sentence of
Section 4.11 of the ACC 7 3/4% Senior Subordinated Indenture as in effect on the
date hereof or any Investment permitted by Sections 7.3(e), 7.3(f) and 7.3(h).
S&P. Standard & Poor's Ratings Group, or any successor rating agency.
Sale. Any sale, transfer or other disposition of assets or other
property, including by means of simultaneous exchange of Stations.
Security Documents. The Pledge Agreement, the Collateral Assignment of
Proceeds, and all other instruments that shall from time to time be identified
by the Agent and the borrower as Security Documents.
Senior Debt. In relation to any Person at any time, the aggregate
amount of Consolidated Funded Debt less Indebtedness outstanding under the
Subordinated Debt Documents and any refinancing thereof, or any other
subordinated Indebtedness incurred pursuant to Section 7.1 herein.
Station. All licenses, franchises and permits (including all FCC
Licenses) issued under federal, state or local laws from time to time which
authorize a Person to receive or distribute, or both, over the airwaves, audio
and visual, radio or microwave signals within a geographic area for the purpose
of providing commercial broadcasting of television or radio entertainment,
together with all property owned or used in connection with the entertainment
provided pursuant to, and all interests of such Person to receive revenues from
any other Person which derives revenues from or pursuant to, said licenses,
franchises and permits.
Subordinated Debt Documents. Collectively, the ACC 7 3/4% Senior
Subordinated Notes and the ACC 7 3/4% Senior Subordinated Indenture.
Subsidiary. Any corporation, limited liability company, as applicable,
association, trust, or other business entity of which the designated parent
shall at any time own directly or indirectly through a Subsidiary or
Subsidiaries at least a majority (by number of votes) of the outstanding Voting
Stock.
Syndication Agent. Deutsche Bank Securities Inc.
Total Commitment. The sum of the Commitments of the Banks, as in
effect from time to time.
Total Debt. All Funded Debt of the Borrower (including capitalized
leases) and its Subsidiaries on a consolidated basis.
Total Debt Service. Interest payments plus scheduled principal
payments with respect to Funded Debt of the Borrower and its Subsidiaries.
Type. With respect to a Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.
16
Voting Stock. Stock, partnership or membership interests, or similar
interests of any class or classes (however designated) the holders of which are
at the time entitled, as such holders, to vote for the election of the directors
(or persons performing similar functions) of the corporation, association, trust
or other business entity involved, whether or not the right so to vote exists by
reason of the happening of a contingency.
Section 1.2 Rules of Interpretation.
(a) A reference to any document or agreement shall include
such document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural includes
the singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms not otherwise defined herein have the
meanings assigned to them by GAAP applied on a consistent basis by the
accounting entity to which they refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by GAAP,
which terms are defined in the Uniform Commercial Code as in effect in
Massachusetts, have the meanings assigned to them therein.
(h) Reference to a particular "ss." refers to that section of
the agreement in which such reference appears unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of
like import shall refer to the agreement in which they appear as a whole and not
to any particular section or subdivision of that agreement unless otherwise
specifically indicated.
(j) The Section references and defined terms set forth in
parentheticals at the end of certain definitions in ss.1.1 are intended for
convenience of reference only to cite to other sections of this Credit Agreement
where such terms are used and shall not define or limit the defined terms set
forth in ss.1.1.
Section 1.3 Accounting Terms.
(a) All accounting terms not specifically or completely
defined herein shall be construed in conformity with, and all financial data
(including financial ratios and other financial calculations) required to be
submitted pursuant to this Agreement shall be prepared in conformity with, GAAP
applied on a consistent basis, as in effect from time to time, applied in a
17
manner consistent with that used in preparing the audited financial statements
as of the Balance Sheet Date, except as otherwise specifically prescribed
herein.
(b) Notwithstanding the definition of GAAP, if at any time
any change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and either Borrower or the Majority
Banks shall so request, the Agent, the Banks and the Borrower shall negotiate in
good faith to amend such ratio or requirement to preserve the original intent
thereof in light of such change in GAAP (subject to the approval of the Majority
Banks); provided that, until so amended, (i) such ratio or requirement shall
continue to be computed in accordance with GAAP prior to such change therein and
(ii) Borrower shall provide to the Agent and the Banks financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
Section 2. THE REVOLVING CREDIT FACILITY.
Section 2.1 Commitment to Lend. Subject to the terms and conditions
set forth in this Credit Agreement, each of the Banks severally agrees to lend
to the Borrower and the Borrower may borrow, repay, and reborrow from time to
time between the date of this Credit Agreement and the Maturity Date such sums
as requested by the Borrower up to a maximum aggregate principal amount
outstanding (after giving effect to all amounts then being requested) at any one
time equal to such Bank's Commitment, provided that the sum of the outstanding
amount of the Loans (after giving effect to all amounts then being requested)
shall not at any time exceed the Total Commitment, upon notice by the Borrower
to the Agent given in accordance with ss.2.5. The Loans shall be made pro rata
in accordance with each Bank's Commitment Percentage. Each request for a Loan
shall constitute a representation by the Borrower that the conditions set forth
in ss.9 and ss.10, in the case of the initial Loans to be made on the Closing
Date, and ss.10, in the case of all other Loans, have been satisfied on the date
of such request.
Section 2.2 Commitment Fee. The Borrower agrees to pay to the Agent
for the accounts of the Banks in accordance with their respective Commitment
Percentages, a Commitment Fee equal to the product of the Commitment Fee Rate
multiplied by the average daily amount during each calendar quarter or portion
thereof from the Closing Date to the Maturity Date by which the Total Commitment
exceeds the outstanding amount of Loans during such calendar quarter. The
Commitment Fee shall be payable quarterly in arrears on March 31, June 30,
September 30 and December 31 in each calendar year, commencing on the first such
date following the date hereof, with a final payment on the Maturity Date or any
earlier date on which the Commitments shall terminate.
Section 2.3 Reduction of Commitments.
(a) Optional Reduction of Commitments. The Borrower shall
have the right at any time and from time to time upon three (3) Business Days'
written notice to the Agent to reduce by $500,000 or an integral multiple
thereof or terminate entirely the unborrowed portion of the Total Commitment,
whereupon the Commitments of the Banks shall be reduced pro rata in
18
accordance with their respective Commitment Percentages of the amount specified
in such notice or, as the case may be, terminated. Promptly after receiving any
notice of the Borrower delivered pursuant to this ss.2.3, the Agent will notify
the Banks of the substance thereof. No reduction of the Commitments of the Banks
may be reinstated.
(b) Mandatory Reduction of Commitment. Simultaneously with
any receipt by the Borrower or any of its Subsidiaries of any Proceeds, if an
Event of Default has occurred and is continuing, the Total Commitment shall be
reduced by the amount of such Proceeds.
Section 2.4 The Notes.
(a) The Loans shall be evidenced by separate promissory notes
of the Borrower in substantially the form of Exhibit A hereto (each a "Note"),
dated the Closing Date and completed with appropriate insertions. One Note shall
be payable to the order of each Bank in a face amount equal to such Bank's
Commitment. The Borrower irrevocably authorizes each Bank to make or cause to be
made, at or about the time of receipt of any payment of principal on such Bank's
Note, an appropriate notation reflecting such payment on the Note Record
attached to such Bank's Note. The outstanding amount of the Loans set forth on
such Note Record shall be prima facie evidence of the principal amount thereof
owing and unpaid to such Bank, but the failure to record, or any error in so
recording, any such amount on such Note Record shall not limit or otherwise
affect the obligations of the Borrower hereunder or under any Note to make
payments of principal of or interest on any Note when due.
(b) Upon receipt of an affidavit of an officer of any Bank as
to the loss, theft, destruction or mutilation of any Note or any other security
document which is not of public record, and, in the case of any such loss,
theft, destruction or mutilation, upon cancellation of any such Note or other
security document, Borrower will issue, in lieu thereof, a replacement note or
other security document in the same principal amount thereof and otherwise of
like tenor.
Section 2.5 Requests for Loans. The Borrower shall give to the Agent
written notice in the form of Exhibit B hereto (or telephonic notice confirmed
in a writing in the form of Exhibit B hereto) of each Loan requested hereunder
(a "Loan Request") no later than 11:00 a.m. (Boston time) (a) at least three (3)
Business Days prior to the proposed Drawdown Date of any Eurodollar Rate Loan
and (b) at least one (1) Business Day prior to the proposed Drawdown Date of any
Base Rate Loan. Each such notice shall specify (i) the principal amount of the
Loan requested, (ii) the proposed Drawdown Date of such Loan, (iii) whether such
Loan shall initially be a Base Rate Loan or a Eurodollar Rate Loan and (iv) the
Interest Period for such Loan (if such Loan shall be a Eurodollar Rate Loan).
Promptly upon receipt of any such Loan Request, the Agent shall notify each of
the Banks of the substance thereof. Each Loan Request shall be irrevocable and
binding on the Borrower and shall obligate the Borrower to accept the Loan
requested from the Banks on the proposed Drawdown Date. Each Loan Request shall
be in a minimum amount of $1,000,000 or an integral multiple of $100,000 in
excess thereof.
Section 2.6 Funds for Loans.
(a) Not later than 11:00 a.m. (Boston time) on the proposed
Drawdown Date of any Loan, each of the Banks, severally, will make available to
the Agent, at its head office, in
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immediately available funds, the amount of such Bank's Commitment Percentage of
the amount of the requested Loan. Upon receipt from each Bank of such amount,
and upon receipt of the documents required by ss.ss.9 and 10 and the
satisfaction of the other conditions set forth therein, to the extent
applicable, the Agent will make the aggregate amount of such Loan available to
the Borrower. The failure or refusal of any Bank to make available to the Agent
at the aforesaid time on any Drawdown Date the amount of its Commitment
Percentage of the requested Loans shall not relieve any other Bank from its
several obligation hereunder to make available to the Agent the amount of its
Commitment Percentage of any requested Loan.
(b) Unless Agent shall have received notice from a Bank prior
to the proposed date of any Borrowing of Eurodollar Rate Loans (or, in the case
of any Borrowing of Base Rate Loans, prior to 11:00 am on the date of such
Borrowing) that such Bank will not make available to Agent such Bank's share of
such Borrowing, Agent may assume that such Bank has made such share available on
such date and at the time required in accordance with ss.2.6(a) and may, in
reliance upon such assumption, make available to Borrower a corresponding
amount. In such event, if a Bank has not in fact made its share of the
applicable Borrowing available to Agent, then the applicable Bank and Borrower
severally agree to pay to Agent forthwith on demand such corresponding amount in
immediately available funds with interest thereon, for each day from and
including the date such amount is made available to Borrower to but excluding
the date of payment to Agent, at (i) in the case of a payment to be made by such
Bank, the greater of the Federal Funds Rate and a rate determined by Agent in
accordance with banking industry rules on interbank compensation, plus any
administrative, processing or similar fees customarily charged by Agent in
connection with the foregoing and (ii) in the case of a payment to be made by
Borrower, the interest rate applicable to the Loan made on such date. If
Borrower and such Bank shall pay such interest to Agent for the same or an
overlapping period, Agent shall promptly remit to Borrower the amount of such
interest paid by Borrower for such period. If such Bank pays its share of the
applicable Borrowing to Agent, then the amount so paid shall constitute such
Bank's Loan included in such Borrowing. Any payment by Borrower shall be without
prejudice to any claim Borrower may have against a Bank that shall have failed
to make such payment to Agent.
(c) The obligations of the Banks hereunder to make Loans and
to make payments under ss.14(c) are several and not joint. The failure of any
Bank to make any Loan or to make any payment under ss.14(c) on any date required
hereunder shall not relieve any other Bank of its corresponding obligation to do
so on such date, and no Bank shall be responsible for the failure of any other
Bank to so make its Loan or to make its payment under ss.14(c).
(d) Nothing herein shall be deemed to obligate any Bank to
obtain the funds for any Loan in any particular place or manner or to constitute
a representation by any Bank that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
Section 2.7 Mandatory Repayments and Prepayments of Loans.
Section 2.7.1 The Borrower promises to pay the outstanding
amount of all Loans on the Maturity Date.
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Section 2.7.2 If at any time the sum of the outstanding amount
of the Loans exceeds the Total Commitment, then the Borrower shall immediately
repay principal of the Loans in an amount equal to the amount of such excess.
Section 2.7.3 Concurrently with the receipt by the Borrower or
any of its Subsidiaries of any Proceeds, if a Default or Event of Default has
occurred and is continuing, the Borrower shall prepay principal of the Loans in
an amount equal to the amount of such Proceeds.
Section 2.7.4 Each prepayment of the Loans pursuant to this
ss.2.7 shall be accompanied by the payment of accrued interest on principal of
the Loans prepaid, together with any amounts required by ss.3.9 in respect of
such prepayment. Each such prepayment shall be allocated among the Banks, in
proportion, as nearly as practicable, to the respective unpaid principal amount
of each Bank's Note, with adjustments to the extent practicable to equalize any
prior repayments or prepayments not exactly in proportion.
Section 2.8 Optional Repayments of Loans. The Borrower shall have the
right, at its election, to repay the outstanding amount of any Loans, as a whole
or in part, at any time without penalty or premium; provided that in the case of
any full or partial prepayment of the outstanding amount of any Eurodollar Rate
Loans such prepayment shall occur only on the last day of an Interest Period for
such Eurodollar Rate Loan and if such prepayment is made prior to the end of the
Interest Period applicable thereto, the Borrower shall be obligated to reimburse
the Banks in respect thereof pursuant to ss.3.3. The Borrower shall give the
Agent at least three (3) Business Days' notice of any proposed repayment of
Loans, in each case specifying the proposed date of repayment and the principal
amount to be paid, which notice, if not in writing, shall be promptly confirmed
in writing. Each such partial payment of Loans shall be in a minimum amount of
$500,000 or an integral multiple of $100,000 in excess thereof. Each repayment
pursuant to this ss.2.8 shall be accompanied by the payment of accrued interest
on the principal repaid to the date of payment. Each such partial repayment
shall be allocated among the Banks, in proportion, as nearly as practicable, to
the respective unpaid principal amount of each Bank's Note, with adjustments to
the extent practicable to equalize any prior repayments or prepayments not
exactly in proportion.
Section 2.9 Sharing of Payments. If any Bank shall, by exercising any
right of setoff or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of the Loans made by it resulting in such Bank's
receiving payment of a proportion of the aggregate amount of such Loans and
accrued interest thereon greater than its pro rata share thereof as provided
herein, then the Bank receiving such greater proportion shall (a) notify Agent
of such fact, and (b) purchase (for cash at face value) participations in the
Loans of the other Banks, or make such other adjustments as shall be equitable,
so that the benefit of all such payments shall be shared by the Banks ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans; and other amounts owing them; provided that:
(i) if any such participations or subparticipations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations or subparticipations shall be rescinded
and the purchase price restored to the extent of such recovery, without
interest; and
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(ii) the provisions of this Section shall not be construed to
apply to (A) any payment made by Borrower pursuant to and in accordance
with the express terms of this Agreement or (B) any payment obtained by
a Bank as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant, other
than to Borrower or any Subsidiary thereof (as to which the provisions
of this Section shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Bank acquiring a participation
pursuant to the foregoing arrangements may exercise against such Loan Party
rights of setoff and counterclaim with respect to such participation as fully as
if such Bank were a direct creditor of such Loan Party in the amount of such
participation.
Section 2.10 Increase of Commitments.
(a) The Borrower may from to time during the term of this
Agreement, so long as no Event of Default exists, request an increase in the
aggregate amount of the Total Commitment by delivering a written request (an
"Increase Request") to the Agent and the Banks; provided that the aggregate
amount of such increase in the amount of the Total Commitment pursuant to this
ss. 2.10 shall not exceed the lesser of (i) $50,000,000 or (ii) the amount of
additional "Senior Debt" (as defined in the ACC 7 3/4% Senior Subordinated
Indenture, as amended from time to time) that may be incurred by the Borrower in
accordance with the terms of the ACC 7 3/4% Senior Subordinated Indenture, as
amended from time to time. Any Increase Request shall specify (A) the date (the
"Increase Response Date") by which any Bank or prospective Bank that is willing
to increase its Commitment must respond to such request, (B) the date (the
"Increase Effective Date") on which the requested increase is to become
effective (which shall be at least five Business Days after the related Increase
Response Date) and (C) the amount of the requested increase (which shall be
$10,000,000 or a higher integral multiple of $1,000,000). No Bank shall be
obligated to increase its Commitment pursuant to any Increase Request.
(b) Not later than the Increase Response Date for an Increase
Request, any Bank or prospective Bank that is willing to increase its Commitment
in response to such Increase Request (an "Increasing Bank") shall notify the
Borrower and the Agent of the amount by which such Bank or prospective Bank is
willing to increase its Commitment (which amount shall be an integral multiple
of $1,000,000). On the first Business Day after the Increase Response Date, the
Agent shall notify the Increasing Banks of the amounts of their respective
increases (it being understood that if the aggregate amount of increased
Commitments offered pursuant to an Increase Request exceeds the amount
requested, the Borrower, in consultation with the Agent, may (subject to the
limitation in clause (a) above) accept all or any portion of such excess offered
Commitments and/or allocate the increases in the Commitments among the
Increasing Banks). On the applicable Increase Effective Date, the Commitment of
each Increasing Bank shall be increased by the amount offered by (or, if
applicable, allocated to) such Increasing Bank and the aggregate amount of the
Total Commitment shall be increased (and the Commitment Percentages adjusted)
accordingly.
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(c) If any Increasing Bank is not a Bank prior to the related
Increase Effective Date, such Increasing Bank shall be subject to approval by
the Borrower and the Agent (such approvals not to be unreasonably withheld or
delayed) and such Increasing Bank, the Borrower and the Agent shall sign and
deliver a joinder agreement (a "Joinder Agreement"), in form and substance
satisfactory to the Borrower, the Agent and such Increasing Bank, pursuant to
which such Increasing Bank shall become a party to this Agreement.
(d) From and after any Increase Effective Date, the Borrower
and the Agent shall cooperate in making conversions of the Eurodollar Rate Loans
from one interest rate basis to another and in selecting Interest Periods to be
applicable thereto in order, during a reasonable period following the Increase
Effective Date, to make the Loans of the Banks ratable (based on their
respective Commitment Percentages after giving effect to the increased
Commitments hereunder) in the various Types
Section 3. INTEREST; CERTAIN GENERAL PROVISIONS.
Section 3.1 Interest on Loans; Payment.
(a) Eurodollar Rate Loans. Except as otherwise increased
pursuant to ss.3.12 hereof, the outstanding amount of each Eurodollar Rate Loan
shall bear interest during each Interest Period relating thereto at a rate per
annum equal to the Eurodollar Rate determined for such Interest Period plus the
Eurodollar Applicable Margin in effect for such Interest Period. The Borrower
absolutely and unconditionally promises to pay interest on each Eurodollar Rate
Loan in arrears on each Interest Payment Date with respect thereto.
(b) Base Rate Loans. Except as otherwise increased pursuant
to ss.3.12 hereof, the outstanding amount of each Base Rate Loan shall bear
interest at a rate per annum equal to the Base Rate in effect from time to time,
plus the Alternate Base Rate Applicable Margin in effect from time to time. The
Borrower absolutely and unconditionally promises to pay interest on each Base
Rate Loan in arrears on each March 31, June 30, September 30 and December 31,
and on the Maturity Date.
(c) Maximum Interest Rate. If, at any time, the rate of
interest, together with all amounts which constitute interest and which are
reserved, charged or taken by any Bank as compensation for fees, services or
expenses incidental to the making, negotiating or collection of the loan
evidenced hereby, shall be deemed by any competent court of law, governmental
agency or tribunal to exceed the maximum rate of interest permitted to be
charged by any Bank to Borrower under applicable law, then, during such time as
such rate of interest would be deemed excessive, that portion of each sum paid
attributable to that portion of such interest rate that exceeds the maximum rate
of interest so permitted shall be deemed a voluntary prepayment of principal. As
used herein, the term "applicable law" shall mean the law in effect as of the
date hereof; provided, however, that in the event there is a change in the law
which results in a higher permissible rate of interest, then this Credit
Agreement shall be governed by such new law as of its effective date.
Section 3.2 Interest Period Options. Upon notice (a "Continuation or
Conversion Notice") given to the Agent no later than 11:00 a.m. (Boston time) at
least three (3) Business
23
Days' prior to the expiration of an Interest Period applicable to any Eurodollar
Rate Loan, or the commencement of any Interest Period for any Base Rate Loan to
be converted to a Eurodollar Rate Loan, the Borrower may elect to continue such
Loan as a Eurodollar Rate Loan upon the expiration of the then applicable
Interest Period for another Interest Period of the duration specified in such
notice, or convert a Base Rate Loan to a Eurodollar Rate Loan for the Interest
Period specified in such notice; provided that no Eurodollar Rate Loan may be
continued, and no Base Rate Loan may be converted to a Eurodollar Rate Loan when
any Default or Event of Default has occurred and is continuing; provided further
that the Eurodollar Rate Loan to which any particular Interest Period applies
shall be in an aggregate principal amount of at least $500,000 or an integral
multiple of $100,000 in excess thereof. Each continuation of a Eurodollar Rate
Loan hereunder, and each conversion of a Base Rate Loan to a Eurodollar Rate
Loan, shall be allocated between the Banks in proportion, as nearly as
practicable, to each Bank's Commitment Percentage, with adjustments to the
extent practicable to equalize any prior continuations not exactly in
proportion. After giving effect to all Borrowings, all conversions of Loans from
one Type to the other, and all continuations of Loans as the same Type, there
shall not be more than six (6) Interest Periods in effect with respect to Loans.
Any portion of the Loans for which the Borrower shall not have
delivered a timely Continuation or Conversion Notice in accordance with the
terms hereof shall be a Base Rate Loan upon the expiration of the current
Interest Period for such Loan, until such time as such Base Rate Loan is
converted to a Eurodollar Rate Loan in accordance with the terms hereof.
Section 3.3 Computation of Interest and Fees. All computations of
interest for Base Rate Loans when the Base Rate is determined by Bank of
America's "prime rate" shall be made on the basis of a year of 365 or 366 days,
as the case may be, and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and actual days elapsed
(which results in more fees or interest, as applicable, being paid than if
computed on the basis of a 365-day year). Interest shall accrue on each Loan for
the day on which the Loan is made, and shall not accrue on a Loan, or any
portion thereof, for the day on which the Loan or such portion is paid, provided
that any Loan that is repaid on the same day on which it is made shall bear
interest for one day. Each determination by Agent of an interest rate or fee
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
Section 3.4 Payments Generally; Agent's Clawback.
(a) All payments to be made by Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by Borrower
hereunder shall be made to Agent, for the account of the respective Banks to
which such payment is owed, at the Agent's office in Dollars and in immediately
available funds not later than 12:00 noon on the date specified herein. Agent
will promptly distribute to each Bank its Commitment Percentage (or other
applicable share as provided herein) of such payment in like funds as received
by wire transfer. All payments received by Agent after 12:00 noon shall be
deemed received on the next succeeding Business Day and any applicable interest
or fee shall continue to accrue. If any payment to be made by Borrower shall
come due on a day other than a Business Day, payment shall be made on the next
following Business Day, and such extension of time shall be reflected in
computing interest or fees, as the case may be.
24
(b) Unless Agent shall have received notice from Borrower
prior to the date on which any payment is due to Agent for the account of the
hereunder that Borrower will not make such payment, Agent may assume that
Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Banks the amount due. In such
event, if Borrower has not in fact made such payment, then each of the Banks
severally agrees to repay to Agent forthwith on demand the amount so distributed
to such Bank, in immediately available funds with interest thereon, for each day
from and including the date such amount is distributed to it to but excluding
the date of payment to Agent, at the greater of the Federal Funds Rate and a
rate determined by Agent in accordance with banking industry rules on interbank
compensation. A notice from Agent to any Bank or Borrower with respect to any
amount owing under this subsection (b) shall be conclusive, absent manifest
error.
Section 3.5 Taxes.
(a) Any and all payments by Borrower to or on account of any
obligation of Borrower or any other Loan Party hereunder or under any other Loan
Document shall be made free and clear of and without reduction or withholding
for any Indemnified Taxes or Other Taxes, provided that if Borrower shall be
required by any applicable law to deduct any Indemnified Taxes (including any
Other Taxes) from such payments, then, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this ss.3.5), Agent or any Bank, as
the case may be, receives an amount equal to the sum it would have received had
no such deductions been made, (ii) Borrower shall make such deductions, and
(iii) Borrower shall timely pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) Without limiting the provisions of subsection (a) above,
Borrower shall timely pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.
(c) Borrower shall indemnify Agent and each Bank, within 10
days after demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) paid by Agent or such
Bank, as the case may be, and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes
or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to Borrower by a Bank (with a copy to Agent), or by Agent on
its own behalf or on behalf of a Bank, shall be conclusive absent manifest
error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by Borrower to a Governmental Authority, Borrower shall
deliver to Agent the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return reporting
such payment or other evidence of such payment reasonably satisfactory to Agent.
(e) Any Bank, if requested by Borrower or Agent, shall
deliver such documentation prescribed by applicable law or reasonably requested
by Borrower or Agent as
25
will enable the Borrower or Agent to determine whether or not such Bank is
subject to backup withholding or information reporting requirements.
(f) If Agent or any Bank determines, in its sole discretion,
that it has received a refund of any Taxes or Other Taxes as to which it has
been indemnified by Borrower or with respect to which Borrower has paid
additional amounts pursuant to this Section, it shall pay to Borrower an amount
equal to such refund (but only to the extent of indemnity payments made, or
additional amounts paid, by Borrower under this ss.3.5 with respect to the Taxes
or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of
Agent or such Bank, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund), provided that
Borrower, upon the request of Agent or such Bank, agrees to repay the amount
paid over to the Borrower (plus any penalties, interest or other charges imposed
by the relevant Governmental Authority) to Agent or such Bank in the event Agent
or such Bank is required to repay such refund to such Governmental Authority.
This subsection shall not be construed to require Agent or any Bank to make
available its tax returns (or any other information relating to its taxes that
it deems confidential) to the Borrower or any other Person.
For purposes of this ss. 3.5, the following terms shall have the
meanings ascribed thereto:
"Excluded Taxes" means, with respect to Agent, any Bank or any other
recipient of any payment to be made by or on account of any obligation of
Borrower hereunder, (a) taxes imposed on or measured by its overall net income
(however denominated), and franchise taxes imposed on it (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof) under the
laws of which such recipient is organized or in which its principal office is
located or, in the case of any Bank, in which its applicable lending office is
located, and (b) any branch profits taxes imposed by the United States or any
similar tax imposed by the United States or any similar tax imposed by any other
jurisdiction in which Borrower is located.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Other Taxes" means all present or future stamp, intangible or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or under any other Loan Document
or from the execution, delivery or enforcement of, or otherwise with respect to,
this Agreement or any other Loan Document.
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
Section 3.6 Illegality. If any Bank determines that any Law has made
it unlawful, or that any Governmental Authority has asserted that it is
unlawful, for any Bank to make, maintain or fund Eurodollar Rate Loans, or to
determine or charge interest rates based upon the Eurodollar Rate, or any
Governmental Authority has imposed material restrictions on the authority of
such Bank to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Bank to Borrower through
Agent, any obligation of such Bank to make or continue Eurodollar Rate Loans or
to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until
such Bank notifies Agent and Borrower that the circumstances giving rise to
26
such determination no longer exist. Upon receipt of such notice, Borrower shall,
upon demand from such Bank (with a copy to Agent), convert all Eurodollar Rate
Loans of such Bank to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Bank may lawfully continue to maintain such Eurodollar
Rate Loans to such day, or immediately, if such Bank may not lawfully continue
to maintain such Eurodollar Rate Loans. Upon any such conversion, Borrower shall
also pay accrued interest on the amount so converted and all amounts due under
ss. 3.9 in accordance with the terms thereof due to such conversion.
Section 3.7 Inability to Determine Rates. If Agent determines in
connection with any request for a Eurodollar Rate Loan or a conversion to or
continuation thereof that (a) Dollar deposits are not being offered to banks in
the London interbank eurodollar market for the applicable amount and Interest
Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not
exist for determining the Eurodollar Base Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan, or (c) the Eurodollar Base Rate
for any requested Interest Period with respect to a proposed Eurodollar Rate
Loan does not adequately and fairly reflect the cost to the Banks of funding
such Loan, Agent will promptly so notify Borrower and each Bank. Thereafter, the
obligation of Banks to make or maintain Eurodollar Rate Loans shall be suspended
until Agent (upon the instruction of the Majority Banks) revokes such notice.
Upon receipt of such notice, Borrower may revoke any pending request for a
Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing
that, will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.
Section 3.8 Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve,
special deposit, compulsory loan, insurance charge or similar
requirement against assets of, deposits with or for the
account of, or credit extended or participated in by, any Bank
(except any reserve requirement reflected in the Eurodollar
Rate);
(ii) subject any Bank to any tax of any kind whatsoever
with respect to this Agreement, or any Eurodollar Rate Loan
made by it hereunder, or change the basis of taxation of
payments to such Bank in respect thereof (except for
Indemnified Taxes or Other Taxes covered by ss. 3.5 and the
imposition of, or any change in the rate of, any Excluded Tax
payable by such Bank); or
(iii) impose on any Bank or the London interbank market
any other condition, cost or expense with respect to this
Agreement or Eurodollar Rate Loans made by such Bank;
and the result of any of the foregoing shall be to increase the cost to such
Bank of making or maintaining any Eurodollar Rate Loan (or of maintaining its
obligation to make any such Loan), or to reduce the amount of any sum received
or receivable by such Bank hereunder (whether of principal, interest or any
other amount) then, upon written request of such Bank, Borrower will pay to such
Bank, such additional amount or amounts as will compensate such Bank for such
27
additional costs incurred or reduction suffered (after such Bank shall have
allocated the same fairly and equitably among all customers of any class
generally affected thereby).
(b) If any Bank determines that any Change in Law affecting
such Bank or any office of such Bank or such Bank's holding company, if any,
regarding capital requirements has or would have the effect of reducing the rate
of return on such Bank's capital or on the capital of such Bank's holding
company, if any, as a consequence of this Agreement, the Commitment of such Bank
or the Loans made by such Bank, to a level below that which such Bank or such
Bank's holding company could have achieved but for such Change in Law (taking
into consideration such Bank's policies and the policies of such Bank's holding
company with respect to capital adequacy), then from time to time Borrower will
pay to such Bank such additional amount or amounts as will compensate such Bank
or such Bank's holding company for any such reduction suffered (after such Bank
shall have allocated the same fairly and equitably among all customers of any
class generally affected thereby).
(c) A certificate of a Bank setting forth the amount or
amounts necessary to compensate such Bank or its holding company, as the case
may be, as specified in subsection (a) or (b) of this ss.3.8 and delivered to
Borrower shall be conclusive absent manifest error. Borrower shall pay such
Bank, the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Bank to demand
compensation pursuant to the foregoing provisions of this ss.3.8 shall not
constitute a waiver of such Bank's right to demand such compensation, provided
that Borrower shall not be required to compensate a Bank pursuant to the
foregoing provisions of this ss.3.8 for any increased costs incurred or
reductions suffered more than three months prior to the date that such Bank
notifies Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Bank's intention to claim compensation therefor (except
that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the three-month period referred to above shall be extended to
include the period of retroactive effect thereof).
(e) If the Agent or any Bank determines, in its sole
discretion, that it has received a refund of any such additional costs incurred
or reduction suffered with respect to which Borrower has paid additional amounts
pursuant to this Section, it shall pay to Borrower an amount equal to such
refund (but only to the extent of additional amounts paid by Borrower under this
ss.3.8), net of all out-of-pocket expenses of the Agent or such Bank, and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided that Borrower, upon the request
of the Agent or such Bank, agrees to repay the amount paid over to Borrower
(plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Agent or such Bank in the event the Agent or such
Bank is required to repay such refund to such Governmental Authority. This
subsection shall not be construed to require the Agent or any Bank to make
available any information relating to its business that it deems confidential to
Borrower or any other Person.
Section 3.9 Compensation for Losses. Upon demand of any Bank (with a
copy to Agent) from time to time, Borrower shall promptly compensate such Bank
for and hold such Bank harmless from any loss, cost or expense incurred by it as
a result of:
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(a) any continuation, conversion, payment or prepayment of
any Loan other than a Base Rate Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise); or
(b) any failure by Borrower (for a reason other than the
failure of such Bank to make a Loan) to prepay, borrow, continue or convert any
Loan other than a Base Rate Loan on the date or in the amount notified by
Borrower;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
Borrower shall also pay any customary administrative fees charged by such Bank
in connection with the foregoing. For purposes of calculating amounts payable by
Borrower to the Banks under this ss. 3.9, each Bank shall be deemed to have
funded each Eurodollar Rate Loan made by it at the Eurodollar Base Rate used in
determining the Eurodollar Rate for such Loan by a matching deposit or other
borrowing in the London interbank eurodollar market for a comparable amount and
for a comparable period, whether or not such Eurodollar Rate Loan was in fact so
funded.
Section 3.10 Mitigation Obligations. If any Bank requests compensation
under ss. 3.8, or Borrower is required to pay any additional amount to any Bank
or any Governmental Authority for the account of any Bank pursuant to ss. 3.5,
or if any Bank gives a notice pursuant to ss. 3.6, then such Bank shall use
reasonable efforts to designate a different office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder to another of
its offices, branches or affiliates, if, in the judgment of such Bank, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 3.5(a) or 3.8, as the case may be, in the future, or eliminate the
need for the notice pursuant to Section 3.6, as applicable, and (ii) in each
case, would not subject such Bank to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Bank. Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Bank in connection with any such
designation or assignment.
Section 3.11 Survival. All of Borrower's obligations under this
Article III shall survive termination of the Commitments and repayment of all
other Obligations hereunder.
Section 3.12 Late Fee. If any portion of any required principal and/or
interest payment is not paid in full within ten (10) days after the same is due,
Borrower shall pay to Agent a late fee equal to five percent (5%) of the portion
of the required payment not paid.
Section 3.13 Default Rate. Upon any Default or Event of Default
(whether or not the Banks have accelerated payment of the Loans), or after
maturity or after judgment has been rendered on the Loans, upon notification by
the Agent to the Borrower, Borrower's right to select pricing options shall
cease and the Applicable Margin shall be increased by two (2%) percentage points
per annum.
Section 3.14 Application of Payments. All payments shall be applied
first to the payment of all fees, expenses and other amounts due to the Banks
(excluding principal and interest), then to accrued interest, and the balance on
account of outstanding principal; provided,
29
however, that after default, payments will be applied to the obligations of
Borrower to the Banks as Agent determines in its sole discretion.
Section 3.15 Payment Date Adjustment. If any payment hereunder becomes
due on a day which is not a Business Day, the due date of such payment shall be
extended to the next succeeding Business Day, and such extension of time shall
be included in computing interest and fees in connection with such payment.
Section 4. SECURITY.
Pursuant to the terms of the Pledge Agreement, the Obligations shall be
secured by a perfected first priority security interest in all of the
outstanding capital stock or partnership or membership interests, as applicable,
whether now owned or hereafter acquired of (a) the Borrower owned by AGI and (b)
all Subsidiaries owned by the Borrower directly or indirectly through any of its
Subsidiaries. Pursuant to the terms of the Collateral Assignment of Proceeds,
the Obligations will be secured by a perfected first priority security interest
in the proceeds from the sale, transfer or other disposition of the FCC Licenses
held by the Loan Parties.
Section 5. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Banks as follows:
Section 5.1 Corporate Authority.
(a) Formation or Incorporation; Good Standing. Each of the
Borrower, and its Subsidiaries (i) is a corporation, or in the case of KTUL LLC,
KATV LLC and WCIV LLC, a limited liability company, duly organized, validly
existing and in good standing under the laws of the its state of formation or
incorporation, (ii) has all requisite corporate power or limited liability
company power, authority and legal right to own and operate its property, to
lease the property it operates as lessee and to conduct its business as now
conducted and as presently contemplated, and (iii) is in good standing as a
foreign corporation or foreign limited liability company, as applicable, and is
duly authorized to do business in each jurisdiction where such qualification is
necessary except where (x) a failure to be so qualified would not have a
materially adverse effect on the business assets or financial condition of the
Borrower or the Borrower and its Subsidiaries, taken as a whole or the
Borrower's ability to perform the Obligations or (y) the Borrower or such
Subsidiary has applied for qualification to do business in such jurisdiction and
such application is pending.
(b) Authorization. The execution, delivery and performance of
this Credit Agreement and the other Loan Documents to which the Borrower or any
of its Subsidiaries is or is to become a party and the transactions contemplated
hereby and thereby (i) are within the authority and legal right of the Borrower
and its Subsidiaries, (ii) have been duly authorized by all necessary
proceedings, (iii) do not conflict with or result in any breach or contravention
of any provision of law, statute, rule or regulation to which the Borrower or
any of its Subsidiaries is subject or any judgment, order, writ, injunction,
license or permit applicable to the Borrower or any of its Subsidiaries which
would have a materially adverse effect on the business, assets or financial
condition of the Borrower or the Borrower and its Subsidiaries, taken as a whole
and
30
(iv) do not conflict with any provision of the charter or the By-Laws or limited
liability company agreement, as applicable, or any agreement or any instrument
binding upon, the Borrower or any of its Subsidiaries.
(c) Enforceability. The execution and delivery of this Credit
Agreement and the other Loan Documents to which the Borrower or any of its
Subsidiaries is or is to become a party will result in valid and legally binding
obligations of the Borrower and each such Subsidiary enforceable in accordance
with the respective terms and provisions hereof and thereof, except as
enforceability is limited by bankruptcy, insolvency, reorganization, moratorium
or other laws relating to or affecting generally the enforcement of creditors'
rights and except to the extent that availability of the remedy of specific
performance or injunctive relief is subject to the discretion of the court
before which any proceeding therefor may be brought.
Section 5.2 Governmental Approvals . The execution, delivery and
performance by the Borrower and its Subsidiaries of this Credit Agreement and
the other Loan Documents to which the Borrower or any such Subsidiary is or is
to become a party and the transactions contemplated hereby and thereby do not
require the Borrower or any of its Subsidiaries to obtain the approval or
consent of, to make a filing with, or to perform or obtain the performance of
any other act by or in respect of any governmental agency or authority other
than those already obtained or performed, and except that the exercise of
certain rights under the Loan Documents may require the consent of the FCC.
Section 5.3 Title to Properties; Leases. Other than as noted on the
audited consolidated financial statements of the Borrower and its Subsidiaries
as at the Balance Sheet Date, the Borrower and its Subsidiaries own all of the
assets reflected in the consolidated balance sheet of the Borrower and its
Subsidiaries as at the Balance Sheet Date or acquired since that date (except
property and assets sold or otherwise disposed of in the ordinary course of
business since that date and except for defects of title to certain real
property which do not materially impair the value or usefulness thereof),
subject to no rights of others, including any mortgages, leases, conditional
sales agreements, title retention agreements, liens or other encumbrances,
except for liens which do not in the aggregate have a material adverse effect on
the assets, financial condition or business of the Borrower and its
Subsidiaries, taken as a whole. The Borrower and its Subsidiaries enjoy peaceful
and undisturbed possession under all leases under which they are operating, and
all said leases are valid and subsisting and in full force and effect except to
the extent that the failure to enjoy peaceful and undisturbed possession of such
lease or the failure of such lease to be valid, subsisting and in full force and
effect does not have a material adverse effect on the assets, financial
condition or business of the Borrower and its Subsidiaries, taken as a whole.
Section 5.4 Financial Statements and Projections.
Section 5.4.1 Financial Statements. There has been furnished
to each of the Banks a consolidated balance sheet of the Borrower and its
Subsidiaries as at the Balance Sheet Date, and related consolidated statements
of income, retained earnings and cash flow for the fiscal year then ended,
certified by PricewaterhouseCoopers LLP, the Borrower's independent certified
public accountants. Such balance sheet and statements of income, retained
earnings and
31
cash flow have been prepared in accordance with GAAP consistently applied and
are correct and complete and fairly present the financial condition of the
Borrower and its Subsidiaries (to the extent owned on the date thereof) as at
the close of business on the date thereof and the consolidated results of
operations for the fiscal year then ended. There are no contingent liabilities
of the Borrower or any of its Subsidiaries as of such date involving material
amounts, known to the officers of the Borrower and not disclosed in said balance
sheet and the related notes thereto.
Section 5.4.2 Projections. The projections of the annual
operating budgets and operating cash flow through fiscal year 2010 of the
Borrower and its Subsidiaries on a consolidated and consolidating basis,
previously delivered to the Banks (the "Projections"), disclose all material
assumptions made with respect to general economic, financial and market
conditions used in formulating the Projections. To the knowledge of the Borrower
or any of its Subsidiaries, no facts exist that (individually or in the
aggregate) would result in any material change in any of the Projections. The
Projections are based upon reasonable estimates and assumptions, have been
prepared on the basis of the assumptions stated therein and reflect the
reasonable estimates of the Borrower and its Subsidiaries of the results of
operations and other information projected therein.
Section 5.5 No Material Changes, Etc. Since the Balance Sheet Date
there has occurred no materially adverse change in the financial condition or
business of the Borrower and its Subsidiaries as shown on or reflected in the
consolidated balance sheet of the Borrower and its Subsidiaries as at the
Balance Sheet Date, or the related consolidated statements of income, retained
earnings or cash flow for the fiscal year then ended, other than changes in the
ordinary course of business that have not had any materially adverse effect
either individually or in the aggregate on the business or financial condition
of the Borrower and its Subsidiaries, taken as a whole.
Section 5.6 Franchises, Patents, Copyrights, Etc. Each of the
Borrower and its Subsidiaries, respectively, possesses or has a valid right to
use all material franchises, patents, copyrights, inventions, technology,
trademark registrations, trademarks, trade names, trade secrets, service marks,
FCC Licenses, other licenses and permits, and rights in respect of the foregoing
and, to the best of its knowledge, patent and trademark applications and rights
in respect thereto (collectively, the "Proprietary Rights"), adequate for the
conduct of its business substantially as now conducted without known conflict
with any rights of others which could affect or impair in a material manner the
business or assets of the Borrower and its Subsidiaries, taken as a whole.
Except as disclosed in the financial statements referred to in ss.5.4.1 hereof,
the Borrower is not aware of any existing or threatened infringement or
misappropriation of (a) any Proprietary Rights of others by the Borrower or any
of its Subsidiaries or (b) any Proprietary Rights of the Borrower or any of its
Subsidiaries by others, in any way which might materially adversely affect the
business, assets or condition, financial or otherwise, of the Borrower and its
Subsidiaries, taken as a whole.
Section 5.7 No Litigation. Except as set forth on Schedule 5.7, as of
the date hereof, there are no actions, suits, proceedings or investigations of
any kind pending or, to the Borrower's knowledge, threatened against the
Borrower or any of its Subsidiaries before any court, tribunal or administrative
agency or board that, if adversely determined are reasonably
32
likely to in the aggregate, materially adversely affect the properties, assets,
financial condition or business of the Borrower and its Subsidiaries, taken as a
whole or materially impair the right of the Borrower and its Subsidiaries, taken
as a whole, to carry on business substantially as now conducted by them, or
result in any substantial liability not adequately covered by insurance, or for
which adequate reserves are not maintained on the consolidated balance sheet of
the Borrower, or which question the validity of this Credit Agreement or any of
the other Loan Documents, or any action taken or to be taken pursuant hereto or
thereto. As of the date hereof, there are no final judgments against the
Borrower or any of its Subsidiaries that, with other outstanding final
judgments, undischarged and not covered by insurance, exceeds in the aggregate
$500,000.
Section 5.8 No Materially Adverse Contracts, Etc. Neither the
Borrower nor any of its Subsidiaries is subject to any charter, corporate or
other legal restriction, or any judgment, decree, order, rule or regulation that
has or, to the Borrower's knowledge, is expected in the future to have a
materially adverse effect on the business, assets or financial condition of the
Borrower and its Subsidiaries, taken as a whole. Neither the Borrower nor any of
its Subsidiaries is a party to any contract or agreement that has or, to the
best of the Borrower's knowledge, is expected, in the judgment of the Borrower's
officers, to have any materially adverse effect on the business of the Borrower
and its Subsidiaries, taken as a whole.
Section 5.9 Compliance with Other Instruments, Laws, Etc. Neither the
Borrower nor any of its Subsidiaries is in violation of any provision of its
charter documents, bylaws, limited liability company agreement, or instrument to
which it is subject or by which it or any of its properties are bound or any
Applicable Law, decree, order, judgment, statute, permit, license, rule or
regulation, in any of the foregoing cases in a manner that are reasonably likely
to result in the imposition of substantial penalties or materially and adversely
affect the financial condition, properties or business of the Borrower and its
Subsidiaries, taken as a whole or the Borrower's ability to perform the
Obligations.
Section 5.10 Tax Status. The Borrower and, to the best of the
Borrower's knowledge, its Subsidiaries have (a) made or filed all federal and
state income and all other material tax returns, reports and declarations
required by any jurisdiction to which any of them is subject or properly filed
for and received extensions with respect thereto which are still in full force
and effect and which have been fully complied with in all material respects, (b)
paid all taxes and other governmental assessments and charges shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith by appropriate proceedings and for which adequate
reserves, to the extent required by GAAP, have been established and (c) set
aside on their books provisions reasonably adequate for the payment of all
estimated taxes for periods subsequent to the periods to which such returns,
reports or declarations apply. There are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any jurisdiction, and the officers
of the Borrower know of no basis for any such claim.
Section 5.11 No Event of Default. No Default or Event of Default has
occurred and is continuing.
Section 5.12 Holding Company and Investment Company Acts. Neither the
Borrower nor any of its Subsidiaries is a "holding company", or a "subsidiary
company" of a
33
"holding company", or an affiliate" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935; nor is it a
"registered investment company", or an "affiliated company" or a "principal
underwriter" of a "registered investment company", as such terms are defined in
the Investment Company Act of 1940.
Section 5.13 Certain Transactions. Except for arm's length
transactions pursuant to which the Borrower makes payments in the ordinary
course of business upon terms no less favorable than the Borrower could obtain
from third parties and transactions described in any of clauses (1) through (6)
of the last sentence of Section 4.11 of the ACC 7 3/4% Senior Subordinated
Indenture as in effect on the date hereof, none of the officers, directors or
other key employees of the Borrower or any of its Subsidiaries is presently a
party to any transaction with the Borrower or any of its Subsidiaries (other
than for services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, director or such key employee or, to
the knowledge of the Borrower, any corporation, partnership, trust or other
entity in which any officer, director, or any such key employee has a
substantial interest or is an officer, director, trustee or partner.
Section 5.14 ERISA Compliance.
(a) In General. To the best of the Borrower's knowledge, the
Borrower and all ERISA Affiliates have complied in all material respects with
provisions of the Code, to the extent applicable, and of ERISA relevant to the
Borrower's and each ERISA Affiliate's Pension Plans (as defined in ss.3(2) of
ERISA), including the provisions thereof respecting funding requirements for,
and the termination of, such plans and respecting prohibited transactions
thereunder, and the funding of any Guaranteed Pension Plan complies with the
minimum funding standards of ss.412 of the Code.
(b) Guaranteed Pension Plans. Each contribution required to
be made to a Guaranteed Pension Plan, whether required to be made to avoid the
incurrence of an accumulated funding deficiency, the notice or lien provisions
of ss.302(f) of ERISA, or otherwise, has been timely made. No waiver of an
accumulated funding deficiency or extension of amortization periods has been
received with respect to any Guaranteed Pension Plan. No liability to the PBGC
(other than required insurance premiums, all of which have been paid) has been
incurred by the Borrowers or any ERISA Affiliate with respect to any Guaranteed
Pension Plan and there has not been any ERISA Reportable Event, or any other
event or condition which presents a material risk of termination of any
Guaranteed Pension Plan by the PBGC. Based on the latest valuation of each
Guaranteed Pension Plan (which in each case occurred within twelve months of the
date of this representation), and except as disclosed on Schedule 5.14 attached
hereto, the current value of all accrued benefits under each of such plans did
not, as of the latest valuation date, exceed the then current value of the
assets of such plans allocable to such accrued benefits based upon the actuarial
methods and assumptions used for such plans.
(c) Multiemployer Plans. Neither the Borrower nor any ERISA
Affiliate has incurred any material liability (including secondary liability) to
any Multiemployer Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan under ss.4201 of ERISA or as a result of a sale of assets
described in ss.4204 of ERISA. Neither the Borrower nor any
34
ERISA Affiliate has been notified that any Multiemployer Plan is in
reorganization or insolvent under and within the meaning of ss.4241 or ss.4245
of ERISA or that any Multiemployer Plan intends to terminate or has been
terminated under ss.4041A of ERISA.
Section 5.15 Purpose Credit.
(a) The Borrower has not engaged principally or as one of its
important activities in the business of extending credit for the purpose of
"purchasing" or "carrying" any "margin stock" within the respective meanings of
each of the quoted terms under Regulation U of the Board of Governors of the
Federal Reserve System.
(b) The Borrower shall not, directly or indirectly, apply any
part of the proceeds of the Notes for the purpose of or in connection with the
Borrower's broker-dealer activities, if any, within the meaning of Regulation T
of the Federal Reserve Board (Title 12, Part 220, Code of Federal Regulations,
as amended) or any published regulations, interpretations or rulings thereunder.
(c) The issuance of the Notes and the application of the
proceeds thereof by the Borrower will not contravene Regulation U of the Federal
Reserve Board (Title 12, Part 221, Code of Federal Regulations, as amended) or
any published regulations, interpretations or rulings thereunder.
Section 5.16 Environmental Compliance. Except as set forth on
Schedule 5.16,
(a) The Borrower has no knowledge that any operator of owned
Real Estate, and no actual knowledge that any operator of leased Real Estate has
violated, or is alleged to have violated, any judgment, decree, order, law,
permit, governmental approval, ordinance law, license, rule or regulation
pertaining to environmental matters (hereinafter "Environmental Laws"), which
violation would have a material adverse effect on the environment or the
business, assets or financial condition of the Borrower or any of its
Subsidiaries, taken as a whole.
(b) Neither the Borrower nor any of its Subsidiaries has
received notice from any third party including, without limitation, any federal,
state or local governmental authority, (i) that any one of them has been
identified by the United States Environmental Protection Agency ("EPA") or any
state agency as a potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA") with
respect to a site listed on the National Priorities List, 40 C.F.R. Part 300
Appendix B, or any site listed on an analogous state list, (ii) that any
hazardous waste, hazardous substance, pollutant, contaminant, toxic substances,
oil, petroleum, petroleum derivatives, or hazardous materials or other chemicals
or substances regulated by any Environmental Laws including but not limited to
CERCLA, the Resource Conservation and Recovery Act, the Federal Clean Water Act,
the Toxic Substances Control Act, and all analogous state laws, (hereinafter
"Hazardous Substances") which any one of them has generated, transported or
disposed of is alleged to have been found at any site at which a federal, state
or local agency or other third party has conducted or has ordered that the
Borrower or any of its Subsidiaries conduct a remedial investigation, removal or
other response action pursuant to any Environmental Law, or at any site listed
for such investigation or
35
response action; or (iii) that it is or shall be a named party to any claim,
action, cause of action, complaint, or legal or administrative proceeding (in
each case, contingent or otherwise) arising out of any third party's incurrence
of costs, expenses, losses or damages of any kind whatsoever in connection with
the release, handling, generation, storage, treatment, processing or disposal of
Hazardous Substances.
(c) Neither the Borrower nor any of its Subsidiaries are
required by any applicable Environmental Law to perform a Hazardous Substances
site assessment, or to remove or remediate Hazardous Substances, or to give
notice to any governmental agency, or record, or deliver to other Persons an
environmental disclosure document or statement by virtue of the transactions set
forth herein and contemplated hereby or to the effectiveness of any other
transactions contemplated hereby.
(d) Borrower and or its Subsidiaries have all environmental
permits, licenses, approvals, and authorizations required by any Environmental
Law for all facilities, operations and activities at the Real Estate, and are in
compliance therewith, except where noncompliance or failure to hold a permit,
etc. would not have a material adverse effect.
Section 5.17 Labor and Employment.
(a) To Borrower's knowledge, Borrower and each of its
Subsidiaries have at all times operated its business in compliance with
applicable laws and regulations respecting labor, employment, fair employment
practices, work place safety and health, terms and conditions of employment, and
wages and hours except to the extent that the failure to comply therewith would
not have a material adverse affect on the business, assets or condition,
financial or otherwise, of the Borrower.
(b) All independent contractors, temporary employees, leased
employees or any other servants or agents compensated other than through
reportable wages employed or retained in connection with the operation of
Borrower's business have been properly classified and treated in accordance with
applicable laws and for purposes of all benefit plans and perquisites by
Borrower except where such improper classification or treatment would not
individually or in the aggregate have a materially adverse effect on the
business, assets or financial condition of the Borrower.
Section 5.18 Capital Structure. Attached hereto as Schedule 5.18 is a
schedule showing with respect to the Borrower and each Subsidiary of the
Borrower (i) the jurisdiction in which such entity is organized; (ii) the
classes and number of authorized and outstanding shares of capital stock or
units of partnership or membership interests, as applicable, of the Borrower and
each of the Subsidiaries, and the record and beneficial owners of the
partnership or membership interests or capital stock, as applicable, of the
Borrower and each Subsidiary. All of the outstanding capital stock or
partnership or membership interests, as applicable, of the Borrower and each
Subsidiary of the Borrower has been duly authorized and issued and is fully-paid
and non-assessable, and, except as indicated in Schedule 5.18, free and clear of
any pledge, charge, lien, security interest or other encumbrance or restriction
on transfer (other than liens granted to the Banks pursuant to the Pledge
Agreement).
36
Section 5.19 Disclosure. No representation or warranty made by the
Borrower in any of the Loan Documents or in any other document furnished from
time to time in connection herewith or therewith, contains any misrepresentation
of a material fact or omits to state any material fact necessary to make the
statements herein or therein not misleading. There is no fact known to the
Borrower that materially adversely affects, or that might reasonably be expected
to materially adversely affect, the business, property or financial condition of
the Borrower and its Subsidiaries on a consolidated basis.
Section 5.20 License and Approvals.
(a) Except as set forth on Schedule 5.20, each of the
Borrower and its Subsidiaries has all requisite power and authority and
necessary licenses, permits and approvals, including all FCC Licenses, to hold
the FCC Licenses and to own and operate its Stations and to carry on its
businesses as now conducted.
(b) Set forth in Schedule 5.20 is a complete list and brief
description of all FCC Licenses of the Borrower and its Subsidiaries and the
dates on which such FCC Licenses expire. Each such FCC License which is
necessary to the operation of the business of the Borrower or any of its
Subsidiaries is validly issued and in full force and effect. The Borrower and
each of its Subsidiaries has fulfilled and performed all of its obligations with
respect to each such FCC License. Except as set forth on Schedule 5.20, no event
has occurred which: (i) has resulted in, or after notice or lapse of time or
both would result in, revocation or termination of any FCC License, or (ii)
materially and adversely affects or in the future may materially adversely
affect any of the rights of the Borrower or any of its Subsidiaries thereunder.
No license or franchise, other than the FCC Licenses described in Schedule 5.20,
is necessary, as of the date hereof, for the operation of the business
(including the Stations) of the Borrower or any of its Subsidiaries as now
conducted.
(c) Except as set forth on Schedule 5.20, as of the date
hereof, none of the Borrower or any of its Subsidiaries is a party to or has
knowledge of any investigation, notice of violation, order or complaint issued
by or before any governmental authority, including the FCC, or of any other
proceedings (other than proceedings relating to the radio broadcasting industry
generally) which could in any manner threaten or adversely affect the validity
or continued effectiveness of the FCC Licenses of the Borrower or any of its
Subsidiaries or the business of the Borrower or any of its Subsidiaries. Except
as set forth on Schedule 5.20, none of the Borrower or any of its Subsidiaries
has reason to believe that any of the FCC Licenses described in Schedule 5.20
will not be renewed in the ordinary course. As of the date hereof, each of the
Borrower and its Subsidiaries has filed all material reports, applications,
documents, instruments and information required to be filed by it pursuant to
applicable rules and regulations or requests of every regulatory body having
jurisdiction over any of its FCC Licenses or the activities of such Person with
respect thereto.
Section 5.21 Senior Debt. The Obligations constitute "Senior Debt" and
"Designated Senior Debt", as such term is defined under the ACC 7 3/4% Senior
Subordinated Indenture.
37
Section 6 AFFIRMATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan or Note is
outstanding or any Bank has any obligation to make any Loans hereunder:
Section 6.1 Punctual Payment. The Borrower will duly and punctually
pay or cause to be paid the principal and interest on the Loans and the
Commitment Fee, all in accordance with the terms of this Credit Agreement and
the Notes.
Section 6.2 Maintenance of Office. The Borrower will maintain its
chief executive office in Washington, D.C. or at such other place in the United
States of America as the Borrower shall designate upon written notice to the
Agent, where notices, presentations and demands to or upon the Borrower in
respect of the Loan Documents may be given or made.
Section 6.3 Records and Accounts. The Borrower will (a) keep, and
cause each of its Subsidiaries to keep, true and accurate records and books of
account in which full, true and correct entries will be made in accordance with
GAAP and (b) maintain adequate accounts and reserves for all taxes (including
income taxes), depreciation, depletion, obsolescence and amortization of its
properties and the properties of its Subsidiaries, contingencies, and other
reserves, in accordance with GAAP.
Section 6.4 Financial Statements, Certificates and Information. The
Borrower will deliver to the Agent and each of the Banks:
(a) as soon as practicable, but in any event not later than
ninety-five (95) days after the end of each fiscal year of the Borrower, the
consolidated balance sheet of the Borrower and its Subsidiaries as at the end of
such year, and the related consolidated statements of income, retained earnings
and cash flows for such year, each setting forth in comparative form the figures
for the previous fiscal year and all such consolidated statements to be in
reasonable detail, prepared in accordance with GAAP, and certified without
material qualification as to any circumstance which could reasonably be expected
to have a material adverse effect on the Borrower and its Subsidiaries, taken as
a whole, by independent public accountants of nationally recognized standing
selected by the Borrower, together with a written statement from such
accountants to the effect that they have read a copy of this Credit Agreement,
and that, in making the examination necessary to said certification, they have
obtained no knowledge of any Default or Event of Default, or, if such
accountants shall have obtained knowledge of any then existing Default or Event
of Default they shall disclose in such statement any such Default or Event of
Default; provided that such accountants shall not be liable to the Banks for
failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than
fifty (50) days after the end of each of the first three fiscal quarters in each
of the Borrower's fiscal years, copies of the unaudited consolidated balance
sheet of the Borrower and its Subsidiaries as at the end of such quarter, and
the related consolidated statements of income and cash flows for such quarter
and the portion of the Borrower's fiscal year then elapsed, together with
comparative consolidated figures for the same periods of the preceding year, all
in reasonable detail and prepared in accordance with GAAP and accompanied by a
certificate of the principal financial
38
officer of the Borrower stating that the information contained in such financial
statements is correct and complete and fairly presents the financial position of
the Borrower and its Subsidiaries on the date thereof and the results of their
operations for the periods covered thereby (subject to the absence of footnotes
and any year-end adjustments);
(c) within one hundred twenty (120) days after the end of
each fiscal year of the Borrower, and within 60 days after the end of each of
the first three fiscal quarters in each fiscal year of the Borrower, a statement
certified by the principal financial officer of the Borrower in substantially
the form of Exhibit C hereto and setting forth in reasonable detail computations
evidencing compliance with the covenants contained in ss.ss.8.1, 8.2 and 8.3 as
at the end of the period covered by the financial statements referred to in
subsections (a) and (b) above, for such fiscal year or fiscal quarter, as
applicable, or during such period as may be required, and (if applicable)
reconciliations to reflect changes in GAAP since the Balance Sheet Date (each a
"Compliance Certificate");
(d) contemporaneously with the filing or mailing thereof,
copies of all material of a financial nature filed with the Securities and
Exchange Commission or sent to the stockholders of the Borrower or any holder of
the Borrower's Funded Debt;
(e) no later than thirty (30) days after the beginning of
each fiscal year of the Borrower, the Borrower's consolidated financial
projections for each such fiscal year prepared on a quarterly basis, including
projections of revenues, expenses and operating cash flow, together with a
statement of reasonable assumptions made by the Borrower in preparing such
projections and explanations attached thereto;
(f) from time to time upon request of the Agent, projections
of the Borrower and its Subsidiaries updating the Projections or, if applicable,
updating any later such projections delivered in response to a request pursuant
to this ss.6.4(f);
(g) promptly upon the request of the Agent, all Xxxxxxx
audience surveys and other ratings reports prepared by Xxxxxxx Media Research
with respect to the Stations owned or operated by the Borrower or any of its
Subsidiaries that relate to the most recent Xxxxxxx ratings for each such
Station and the most recent ratings for each such Station's target demographics;
(h) promptly upon request by the Agent or any Bank, all
detailed audits or reports submitted to the Borrower or any of its Subsidiaries
by independent public accountants in connection with any annual or interim
audits of the books of the Borrower or any Subsidiary; and
(i) from time to time upon request by the Agent or any Bank,
such other financial data, information or other documents (including, without
limitation, accountants management letters and such other information regarding
the business and affairs and condition, financial and other, of the Borrower,
its Subsidiaries and their respective properties) as the Agent or any Bank may
reasonably request, subject to the confidentiality provisions set forth in ss.27
hereof.
Section 6.5 Corporate Existence; Maintenance of Properties. Except as
otherwise permitted under this Agreement, the Borrower will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence or limited liability company
39
agreement, as applicable, material rights, franchises and Proprietary Rights and
those of its Subsidiaries except to the extent that the Borrower's failure to do
so will not have a materially adverse effect on the assets, financial condition
or business of the Borrower and its Subsidiaries, taken as a whole. It (a) will
cause all of its material properties and those of its Subsidiaries used or
useful in the conduct of its business or the business of its Subsidiaries to be
maintained and kept in good condition, repair and working order and supplied
with all reasonably necessary equipment, (b) will cause to be made all
reasonably necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Borrower may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times, and (c) will, and will cause each of its
Subsidiaries to, continue to engage primarily in the businesses now conducted by
them and in related businesses; provided that nothing in this ss.6.5 shall
prevent the Borrower from discontinuing the operation and maintenance of any of
its properties or those of its Subsidiaries if such discontinuance is, in the
sole judgment of the Borrower, desirable in the conduct of its or their business
and that do not in the aggregate materially adversely affect the business of the
Borrower and its Subsidiaries on a consolidated basis.
Section 6.6 Insurance. The Borrower will, and will cause each of its
Subsidiaries to, maintain with financially sound and reputable insurers
insurance with respect to its insurable properties and business against such
casualties and contingencies as shall be in accordance with the general
practices of businesses engaged in similar activities in similar geographic
areas and in amounts, containing such terms, in such forms and for such periods
as may be reasonably satisfactory to the Agent; provided, however, that the
Borrower and any Subsidiary may self-insure for physical damage to automobiles,
welfare benefits and against liability to workers in any state or jurisdiction,
or may effect worker's compensation insurance therein through an insurance fund
operated by such state or jurisdiction; and provided, further, that
notwithstanding anything to the contrary contained herein, the Borrower or such
Subsidiary will keep its assets which are of an insurable character insured by
financially sound and reputable insurers against loss or damage by fire or
explosion in amounts sufficient to prevent the Borrower or such Subsidiary from
becoming a co-insurer and not in any event less than eighty percent (80%) of the
full insurable value of the property insured.
Section 6.7 Taxes, Etc. The Borrower will, and will cause each of its
Subsidiaries to, (a) duly pay and discharge, or cause to be paid and discharged,
before the same shall become overdue or (b) properly file for and receive
extensions for such payment and duly pay and discharge, or cause to be paid and
discharged, within such extension period, all taxes, assessments and other
governmental charges (other than taxes, assessments and other governmental
charges that in the aggregate are not material to the business or assets of the
Borrower on an individual basis or of the Borrower and its Subsidiaries on a
consolidated basis) imposed upon it and its real properties, sales and
activities, or any part thereof, or upon the income or profits therefrom, as
well as all claims for labor, materials, or supplies that if unpaid might by law
become a lien or charge upon any of its property; provided that any such tax,
assessment, charge, levy or claim need not be paid if the validity or amount
thereof shall currently be contested in good faith by appropriate proceedings
and if the Borrower or such Subsidiary shall have set aside on its books
adequate reserves with respect thereto; and provided further that the Borrower
and each Subsidiary of the Borrower will pay all such taxes,
40
assessments, charges, levies or claims forthwith upon the commencement of
proceedings to foreclose any lien that may have attached as security therefor.
Section 6.8 Inspection of Properties and Books. The Borrower shall
permit the Agent to visit and inspect any of the properties of the Borrower or
any of its Subsidiaries, to examine the books of account of the Borrower and its
Subsidiaries (and to make copies thereof and extracts therefrom), and to discuss
the affairs, finances and accounts of the Borrower and its Subsidiaries with,
and to be advised as to the same by, its and their officers, employees and
independent public accountants (such accountants being hereby authorized by the
Borrower to so discuss and advise) all at such reasonable times and intervals as
the Agent may reasonably request; provided, that (i) the Agent shall give the
Borrower reasonable notice prior to any such visit, inspection, examination or
discussion, and (ii) if the Borrower requests, all such discussions with the
Borrower's independent public accountants shall be in the presence of one or
more officers of the Borrower. In connection with any such inspections or
discussions, the Agent and each Bank will treat all non-public information as
confidential information, and take all reasonable precautions to prevent such
confidential information from being exposed to third parties and to those of its
employees and representatives who do not need to know such confidential
information; provided that this ss.6.8 shall not affect the disclosure by the
Agent or any Bank of information required to be disclosed (i) to its auditors
and regulatory agencies or (ii) pursuant to subpoena or other legal process or
by virtue of any other law, regulation, order or interpretation provided further
that in the event of any such required disclosure by the Agent or any Bank
pursuant to clause (ii) above, Agent or such Bank will notify the Borrower of
such request or requirement so that the Borrower may seek an appropriate
protective order or waive compliance with the provisions of this Agreement.
Section 6.9 Compliance with Laws, Contracts, Licenses, and Permits.
The Borrower will, and will cause each of its Subsidiaries to,
(a) Comply with (i) all Applicable Laws, including all
Environmental Laws, which may be in effect from time to time, (ii) the
provisions of its charter documents and by-laws or limited liability company
agreement, as applicable, (iii) all agreements and instruments by which it or
any of its properties or business may be bound and (iv) all applicable decrees,
orders, and judgments; if in each such case failure to comply would have a
materially adverse effect on the Borrower and its Subsidiaries, taken as a
whole. If at any time any authorization, consent, approval, permit or license
from any Governmental Authority shall become necessary or required in order that
the Borrower may fulfill any of the Obligations, the Borrower will promptly take
or cause to be taken all reasonable steps within the power of the Borrower to
obtain such authorization, consent, approval, permit or license and furnish the
Agent with evidence thereof;
(b) Obtain all such Approvals and take all such other action
with respect to any Governmental Authority as may be required for the execution,
delivery or performance of this Credit Agreement and the other Loan Documents,
and duly perform and comply with all of the terms and conditions of all
Approvals so obtained;
(c) Operate its Stations in accordance and in compliance in
all material respects with the Communications Act, file in a timely manner all
necessary applications for
41
renewal of all FCC Licenses that are material to the operation of its Stations,
and use its best efforts to defend any proceedings which could result in the
termination, forfeiture or non-renewal of any such FCC License; and
(d) Promptly furnish or cause to be furnished to the Agent:
(i) a copy of any order or notice of any Communications
Regulatory Authority which designates any of its FCC Licenses
for a hearing or which refuses renewal or extension thereof,
or revokes or suspends its authority to operate a Station;
(ii) a copy of any competing application filed with
respect to any of its franchises, licenses (including FCC
Licenses), rights, permits, consents or other authorizations
pursuant to which it operates any Station;
(iii) a copy of any citation, notice of violation or
order to show cause issued by any Communications Regulatory
Authority in relation to any of its Stations; and
(iv) a copy of any notice or application by it
requesting authority to cease broadcasting on any Station or
to cease operating any Station for any period in excess of
five (5) days.
Section 6.10 Pension Plans. The Borrower and any ERISA Affiliate
shall:
(a) promptly after the Borrower or any ERISA Affiliate knows
or has reason to know that any ERISA Reportable Event has occurred, notify the
Agent that such ERISA Reportable Event has occurred.
(b) promptly upon request make available to each Bank at the
Borrower's principal place of business a copy of (i) any actuarial statement
related to any pension plan required to be submitted under ss.103(d) of ERISA or
(ii) any notice, report or demand sent or received by a pension plan under
ss.4065 of ERISA;
(c) furnish to each Bank forthwith, a copy of (i) any notice
of a pension plan termination sent to the PBGC under ss.4041(a) of ERISA and
(ii) any notice, report or demand sent or received by a pension plan under
ss.ss.4041, 4042, 4043, 4063, 4066 or 4068 of ERISA; and
(d) furnish to each Bank a copy of any request for waiver
from the funding standards or extension of the amortization periods required by
ss.412 of the Code no later than the date on which the request is submitted to
the Department of Labor or the Internal Revenue Service, as the case may be.
Section 6.11 Further Assurance. The Borrower will cooperate with the
Banks and the Agent and execute such further instruments and documents as the
Banks or the Agent shall reasonably request to carry out to their satisfaction
the transactions contemplated by this Credit Agreement and the other Loan
Documents.
42
Section 6.12 Notices.
(a) The Borrower will promptly notify the Agent and each of
the Banks in writing of the occurrence of any Default or Event of Default. If
any Person shall give any notice or take any other action in respect of a
claimed default (whether or not constituting an Event of Default) under this
Credit Agreement or any other note, evidence of indebtedness, indenture or other
obligation to which or with respect to which the Borrower or any of its
Subsidiaries is a party or obligor, whether as principal or surety, the Borrower
shall forthwith give written notice thereof to each of the Banks, describing the
notice or action and the nature of the claimed default.
(b) The Borrower will deliver to the Agent copies of all
notices, elections, offers, requests or other information delivered by or on
behalf of the Borrower to any holder or any representative, trustee or agent for
any holder of any Indebtedness under the Subordinated Debt Documents, and copies
of all notices, elections, demands and other information received by the
Borrower or any of its Subsidiaries, agents or representatives from any holder
or any representative, trustee or agent for any holder of Indebtedness under the
Subordinated Debt Documents.
Section 6.13 Labor and Employment. The Borrower will, and will cause
each of it's Subsidiaries to, at all times operate its business in compliance
with applicable laws and regulations respecting labor, employment, fair
employment practices, work place safety and health, terms and conditions of
employment, and wages and hours, except where such failure to comply would not
individually or in the aggregate have a material adverse effect on the business
assets or condition, financial or otherwise, of the Borrower.
Section 6.14 Environmental Events. The Borrower will promptly give
notice to the Agent (a) of any violation of any Environmental Law or release of
a Hazardous Substance that the Borrower or any of its Subsidiaries reports in
writing or which is reportable by such Person in writing (or for which any
written report supplemental to any oral report is made) to any federal, state or
local environmental agency and (b) upon becoming aware thereof, of any inquiry,
proceeding, investigation, or other action, including a notice from any agency
of potential environmental liability, or any federal, state or local
environmental agency or board, that might reasonably be expected to materially
adversely affect the assets, liabilities, financial conditions or operations of
the Borrower and its Subsidiaries on a consolidated basis.
Section 6.15 Notification of Claims. The Borrower will, immediately
upon becoming aware thereof, notify the Agent in writing of any uninsured
set-off, claims (including, with respect to the Real Estate, environmental
claims), withholdings or other defenses which might reasonably be expected to
have a materially adverse affect on the assets, liabilities, financial
conditions or operations of the Borrower and its Subsidiaries on a consolidated
basis.
Section 6.16 Use of Proceeds. The Borrower will use the proceeds of
the Loans to refinance Borrower's existing credit facility and for general
corporate purposes not prohibited by this Credit Agreement, including without
limitation the financing of capital expenditures and for working capital
purposes.
43
Section 6.17 Notice of Litigation, Judgment and Material Events. The
Borrower will give notice to the Agent in writing within fifteen (15) days of
becoming aware of any litigation or proceedings threatened in writing or any
pending litigation and proceedings affecting the Borrower or any of its
Subsidiaries or to which the Borrower or any of its Subsidiaries is or becomes a
party involving an uninsured claim against the Borrower individually or the
Borrower and its Subsidiaries on a consolidated basis that could reasonably be
expected to have a materially adverse effect on the Borrower and its
Subsidiaries on a consolidated basis and stating the nature and status of such
litigation or proceedings. The Borrower will, and will cause each of its
Subsidiaries to, give notice to the Agent, in writing, in form and detail
satisfactory to the Agent, (a) within ten (10) days of any judgment not covered
by insurance or reserves, final or otherwise, against the Borrower or any of its
Subsidiaries in an amount which in aggregate with other such judgments against
the Borrower or any of its Subsidiaries exceeds $5,000,000 and (b) promptly
after becoming aware thereof, of the occurrence of any event that it is
reasonable to expect will be required to be reported to the Securities and
Exchange Commission.
Section 6.18 Identification of Subsidiaries; Provision of Collateral.
If and whenever any Subsidiary of the Borrower shall be created or acquired by
the Borrower or any of its Subsidiaries at any time after the date hereof, the
Borrower will:
(a) furnish promptly to the Agent a written notice
identifying such Subsidiary and setting forth with respect to such Subsidiary
information of the kind required by ss.5.18 with respect to Subsidiaries as of
the date hereof; and
(b) promptly pledge or cause to be pledged to the Agent, upon
the terms contained in the Pledge Agreement or a pledge agreement in or
substantially in the form of the Pledge Agreement, all of the issued and
outstanding shares of the capital stock or partnership or membership interests,
as applicable, of such Subsidiary.
(c) promptly cause the Subsidiary to guaranty the Obligations
of the Borrower under the Loan Documents pursuant to a guaranty agreement
substantially in the form of the Guaranty Agreement.
Section 7. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Obligations
(other than contingent Obligations) are outstanding or any Bank has any
Commitment hereunder:
Section 7.1 Restrictions on Indebtedness. The Borrower will not, and
will not permit any of its Subsidiaries to, create, incur, assume, guarantee or
be or remain liable, contingently or otherwise, with respect to any Indebtedness
other than:
(a) Indebtedness in respect of the Loans and the other
Obligations;
(b) Indebtedness of the Borrower under the ACC 7 3/4 % Senior
Subordinated Notes in the maximum aggregate principal amount of $455,000,000,
less any repayments, prepayments, redemptions, repurchases, defeasances or
cancellations of such Indebtedness, plus
44
all accrued unpaid interest on such Indebtedness at a rate not to exceed seven
and three-quarters percent (7 3/4%) per annum;
(c) liabilities of the Borrower or any of its Subsidiaries
(including under any operating leases and studio and tower leases) incurred in
the ordinary course of business not incurred through (i) the borrowing of money,
or (ii) the obtaining of credit except for credit on an open account basis
customarily extended and in fact extended in connection with normal purchases of
goods and services;
(d) Indebtedness in respect of taxes, assessments,
governmental charges or levies and claims for labor, materials and supplies to
the extent that payment therefor shall not at the time be required to be made in
accordance with the provisions of ss.6.7;
(e) Indebtedness in respect of (i) judgments or awards that
have been in force for less than the applicable period for taking an appeal so
long as execution is not levied thereunder or in respect of which the Borrower
or any of its Subsidiaries shall at the time in good faith be prosecuting an
appeal or proceedings for review and in respect of which a stay of execution
shall have been obtained pending such appeal or review, (ii) final judgments
against the Borrower or any of its Subsidiaries that in the aggregate do not
exceed $5,000,000 and (iii) claims which are currently being contested in good
faith by appropriate proceedings and if adequate reserves shall have been set
aside with respect thereto;
(f) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the ordinary course
of business;
(g) obligations under Capitalized Leases not exceeding
$20,000,000 in aggregate amount at any time outstanding;
(h) Indebtedness incurred in connection with the acquisition
after the date hereof of any real or personal property by the Borrower or any
Subsidiary of the Borrower, provided that (i) the aggregate principal amount of
such Indebtedness of the Borrower and its Subsidiaries shall not exceed
$50,000,000 at any one time and (ii) any such Indebtedness incurred shall not
exceed the lesser of the purchase price for the property being acquired with the
proceeds of such Indebtedness or the fair market value of such property at the
time of acquisition;
(i) Indebtedness existing on the date of this Credit
Agreement and listed and described on Schedule 7.1 hereto;
(j) Indebtedness of the Borrower or any of its Subsidiaries
incurred at any time after the Closing Date that is not otherwise permitted by
any of the other paragraphs of this ss.7.1, provided that the Agent and Majority
Banks are satisfied on the date of incurrence of such Indebtedness and at all
times thereafter that (i) all such Indebtedness is expressly subordinated, upon
written terms and conditions completely satisfactory in form and substance to
the Agent and the Majority Banks, in right of payment and exercise of remedies
to the prior payment in full of all the Obligations (and any obligations
refinancing or refunding the Obligations), (ii) the aggregate amount of all such
Indebtedness does not at any time exceed (A) $20,000,000 for purposes other than
Permitted Acquisitions and (B) $200,000,000 for Permitted Acquisitions,
45
(iii) none of such Indebtedness is secured by any lien on any property
(including any capital stock or partnership or membership interests, as
applicable) of the Borrower or any of its Subsidiaries, and no Subsidiary of the
Borrower has any contingent Obligation in respect of such Indebtedness, (iv) no
Default or Event of Default is continuing on the date of incurrence of such
Indebtedness or would result therefrom, (v) all mandatory payment, prepayment,
redemption, repurchase, defeasance, sinking fund and similar obligations, all
interest rates and payment dates, and all covenants, conditions, events of
default and other provisions in respect of such Indebtedness are satisfactory in
form and substance to the Agent and the Majority Banks, and (vi) the proceeds of
all such Indebtedness are used by the Borrower for general working capital
purposes or Permitted Acquisitions as applicable;
(k) intercompany Indebtedness of any Subsidiary of the
Borrower to the Borrower in respect of Investments permitted by ss.7.3; and
(l) Permitted Refinancing Indebtedness.
Section 7.2 Restrictions on Liens. The Borrower will not, and will
not permit any of its Subsidiaries to (a) create or incur or suffer to be
created or incurred or to exist any lien, encumbrance, mortgage, pledge, charge,
restriction or other security interest of any kind upon any of its property or
assets of any character whether now owned or hereafter acquired, or upon the
income or profits therefrom; (b) transfer any of such property or assets or the
income or profits therefrom for the purpose of subjecting the same to the
payment of Indebtedness or performance of any other obligation in priority to
payment of its general creditors; (c) acquire, or agree or have an option to
acquire, any property or assets upon conditional sale or other title retention
or purchase money security agreement, device or arrangement; (d) suffer to exist
for a period of more than thirty (30) days after the same shall have been
incurred any Indebtedness or claim or demand against it that if unpaid might by
law or upon bankruptcy or insolvency, or otherwise, be given any priority
whatsoever over its general creditors; or (e) sell, assign, pledge or otherwise
transfer any accounts, contract rights, general intangibles, chattel paper or
instruments, with or without recourse; provided that the Borrower and any
Subsidiary of the Borrower may create or incur or suffer to be created or
incurred or to exist:
(i) liens to secure taxes, assessments and other
government charges in respect of obligations or liens on
properties to secure claims for labor, material or supplies in
respect of obligations, in either case which are not overdue
or are being contested in good faith;
(ii) deposits or pledges made in connection with, or to
secure payment of, workmen's compensation, unemployment
insurance, old age pensions or other social security
obligations;
(iii) liens on properties in respect of judgments or
awards, the Indebtedness with respect to which is permitted by
ss.7.1(e);
(iv) liens of carriers, warehousemen, mechanics and
materialmen, and other like liens on properties (A) in
existence less than one hundred and twenty (120) days from the
date of creation thereof in respect of obligations not overdue
46
or (B) if such liens are being contested in good faith and by
appropriate proceedings;
(v) encumbrances consisting of easements, rights of
way, zoning restrictions, restrictions on the use of real
property and defects and irregularities in the title thereto,
landlord's or lessor's liens under leases to which the
Borrower or a Subsidiary of the Borrower is a party, and other
minor liens or encumbrances none of which in the opinion of
the Borrower interferes materially with the use of the
property affected in the ordinary conduct of the business of
the Borrower and its Subsidiaries, which defects do not
individually or in the aggregate have a materially adverse
effect on the business of the Borrower individually or of the
Borrower and its Subsidiaries on a consolidated basis;
(vi) purchase money liens securing Indebtedness
permitted by ss.7.1(h), and liens under Capitalized Leases
permitted by ss.7.1(g);
(vii) liens under the Pledge Agreement securing the
Obligations; and
(viii)presently outstanding liens listed on Schedule 7.2
hereto.
Section 7.3 Restrictions on Investments. The Borrower will not, and
will not permit any of its Subsidiaries to, make or permit to exist or to remain
outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United
States of America that mature within one (1) year from the date of purchase by
the Borrower;
(b) demand deposits, certificates of deposit, bankers
acceptances and time deposits of United States banks having total assets in
excess of $1,000,000,000, provided that such investments are maintained in a
manner consistent with the historical cash management practices of the Borrower;
(c) securities commonly known as "commercial paper" issued by
a corporation organized and existing under the laws of the United States of
America or any state thereof that at the time of purchase have been rated and
the ratings for which are not less than "P 1" if rated by Xxxxx'x Investors
Services, Inc., and not less than "A 1" if rated by Standard and Poor's;
(d) Investments existing on the date hereof and listed on
Schedule 7.3 hereto;
(e) Investments consisting of intercompany loans and advances
by (i) any Subsidiary of the Borrower in any other Subsidiary of the Borrower or
(ii) the Borrower in any Subsidiary of the Borrower;
(f) Investments by the Borrower in the common stock or
partnership or membership interests, as applicable, of any Subsidiary of the
Borrower, and by any Subsidiary of the Borrower in the common stock or
partnership or membership interests, as applicable, of any other Subsidiary of
the Borrower;
47
(g) Investments consisting of seller notes received as
proceeds of asset dispositions permitted by ss.7.5;
(h) Investments consisting of loans and advances to officers
and employees for moving, entertainment, travel and other similar expenses in
the ordinary course of business not to exceed $1,500,000 in the aggregate at any
time outstanding;
(i) Permitted Acquisitions;
(j) Investments constituting Restricted Payments permitted by
ss.7.4; and
(k) other Investments in an amount not to exceed $15,000,000
in the aggregate after the Closing Date.
Section 7.4 Restricted Payments. The Borrower will not, and will not
permit any Subsidiary to, make any Restricted Payments other than the following:
(a) the declaration and payment by any Subsidiary of the
Borrower of cash dividends to the Borrower;
(b) payments by the Borrower of accrued unpaid interest on ACC
7 3/4% Senior Subordinated Debentures at the annual rate of seven and
three-quarters percent (7 3/4%) per annum, provided that such payments are
required by the interest payment provisions, and are not prohibited by the
applicable subordination provisions, contained in the ACC 7 3/4% Senior
Subordinated Indenture as in effect on the date hereof or as amended from time
to time in compliance with this Credit Agreement;
(c) mandatory redemptions by the Borrower of ACC 7 3/4%
Senior Subordinated Debentures in amounts required by the ACC 7 3/4% Senior
Subordinated Indenture as in effect on the date hereof or as amended from time
to time in compliance with this Credit Agreement, provided that such mandatory
redemptions are not prohibited by the applicable subordination provisions of the
ACC 7 3/4% Senior Subordinated Indenture as in effect on the date hereof or as
amended from time to time in compliance with this Credit Agreement;
(d) payments by the Borrower of cash dividends on outstanding
shares of its capital stock or loans or advances to Affiliates (other than
Subsidiaries of the Borrower), and payments by any Majority-Owned Subsidiary of
cash dividends on outstanding shares of its capital stock to any Person other
than the Borrower or a wholly-owned Subsidiary of the Borrower, provided that no
Default or Event of Default is continuing on the date of any such payment or
would result therefrom after giving pro forma effect to (i) such payment and any
related transactions as if they had occurred as of the end of the last day of
the most recent fiscal quarter for which the Borrower has delivered a Compliance
Certificate (the "Pro Forma Test Date") and (ii) any Loans or repayment of Loans
that have been made since the Pro Forma Test Date; and
(e) payments made by the Borrower or any Subsidiary to
Affiliates in connection with transactions entered into in the ordinary course
of business, consistent with past practice and on terms substantially as
favorable to the Borrower or such Subsidiary as would be
48
obtainable by the Borrower or such Subsidiary at the time in a comparable arm's
length transaction with a Person other than an Affiliate.
Section 7.5 Mergers, Acquisitions, Dispositions of Assets. The
Borrower will not, and will not permit any of its Subsidiaries to, become a
party to any merger or consolidation, or agree to or effect any acquisition or
Sale of any assets or other property except:
(a) the merger or consolidation of two or more Subsidiaries
of the Borrower;
(b) the acquisition of assets (other than Stations), the
disposition of assets (other than Stations or Subsidiaries), the disposition of
items of obsolete equipment which are not material to the operation of the
business of the Borrower or its Subsidiaries, and the sale of programming time,
in each case in the ordinary course of business consistent with past practices
and acquisition of assets using Net Insurance Proceeds;
(c) the disposition of any Station (other than through a
simultaneous exchange) , provided that (i) at least 75% of the consideration for
such disposition is in the form of cash, (ii) the Net Disposition Proceeds from
such disposition shall be applied to prepay the Loans pursuant to ss.2.7.3,
(iii) the total value of all consideration received by the Borrower or any of
its Subsidiaries in connection with all such dispositions (including the fair
market value of any property other than cash received by the Borrower or any of
its Subsidiaries in connection with any such disposition) after the Closing Date
shall not exceed $75,000,000, and (iii) no Default or Event of Default is
continuing on the date of such disposition or would result therefrom;
(d) the disposition of (i) any one Station through a
simultaneous exchange of Stations, provided that if the EBITDA of any such
disposed of Station exceeds 15% of the Borrower's Consolidated EBITDA as of the
date of determination for such disposition set forth below in the last sentence
hereof, then no further dispositions of Stations shall be permitted pursuant to
this paragraph (d) or (ii) subject to the provisions of clause (i) above, one or
more Stations through a simultaneous exchange, or a series of exchanges,
provided that the aggregate EBITDA of all such disposed of Stations shall at no
time exceed 15% of the Borrower's Consolidated EBITDA as of the date of
determination for each such disposition set forth below in the last sentence
hereof; provided, further, that (1) no such disposition permitted pursuant to
this paragraph (d) shall involve WJLA-TV, (2) the Net Disposition Proceeds from
any such disposition shall be applied to prepay the Loans to the extent required
in Section 2.7.3, (3) such disposition shall be made pursuant to an arm's-length
transaction with a person who is not an Affiliate of the Borrower and (4) such
disposition must meet the requirements for a Permitted Acquisition. For purposes
of this Section 7.5(d), EBITDA and Consolidated EBITDA shall be measured for the
preceding twelve month period as of the end of the most recently completed month
prior to such exchange;
(e) Permitted Acquisitions; and
(f) Permitted Dispositions.
Section 7.6 Sale and Leaseback. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any arrangement, directly or
indirectly, whereby the Borrower or
49
any Subsidiary of the Borrower shall sell or transfer any property owned by it
in order then or thereafter to lease such property or lease other property that
the Borrower or any Subsidiary of the Borrower intends to use for substantially
the same purpose as the property being sold or transferred.
Section 7.7 Federal Regulations. The Borrower will not, and will not
permit any of its Subsidiaries to, engage, principally or as one of its
important activities, in the business of extending credit for the purpose of
"purchasing" or "carrying" any "margin stock" within the respective meanings of
each of the quoted terms under Regulation U of the Board of Governors of the
Federal Reserve System. The Borrower will not, directly or indirectly, use any
part of the proceeds of any Loans for "purchasing" or "carrying" any "margin
stock" within the respective meanings of each of the quoted terms under
Regulation U of the Board of Governors of the Federal Reserve System or for any
purpose that violates, or that would be inconsistent with, the provisions of the
Regulations of such Board of Governors.
Section 7.8 Restrictions on Ability to Repay Loans. The Borrower will
not, and will not permit any of its Subsidiaries to, become or remain subject to
any restriction which could reasonably be expected to impair the Borrower's
ability to repay in full its Obligations hereunder, including, without
limitation, any restriction which would prohibit the distribution by any
Subsidiary to the Borrower of proceeds from asset sales.
Section 7.9 Employee Benefit Plans. Neither the Borrowers nor any
ERISA Affiliate will:
(a) engage in any "prohibited transaction" within the meaning
of ss.406 of ERISA or ss.4975 of the Code which could result in a material
liability for the Borrower or any of its Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an
"accumulated funding deficiency", as such term is defined in ss.302 of ERISA, in
excess of $500,000, whether or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an
extent which, or terminate any Guaranteed Pension Plan in a manner which, could
result in the imposition of a lien or encumbrance on the assets of the Borrower
or any of its Subsidiaries pursuant to ss.302(f) or ss.4068 of ERISA; or
(d) permit or take any action which would result in the
aggregate benefit liabilities (within the meaning of ss.4001 of ERISA) of all
Guaranteed Pension Plans exceeding the value of the aggregate assets of such
Plans by more than $500,000, disregarding for this purpose the benefit
liabilities and assets of any such Plan with assets in excess of benefit
liabilities.
Section 7.10 Compliance with Environmental Laws. Except as permitted
by any applicable Environmental Laws, the Borrower will not, and will not permit
any of its Subsidiaries to, (a) use any of the Real Estate or any portion
thereof for the handling, treatment, processing, storage or disposal of
Hazardous Substances, (b) cause or permit to be located on any of the Real
Estate any underground tank or other underground storage receptacle for
Hazardous
50
Substances, (c) generate any Hazardous Substances on any of the Real Estate, (d)
conduct any activity at any Real Estate or use any Real Estate in any manner
which is likely to cause a release (i.e. releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
disposing or dumping) of Hazardous Substances on, upon or into the Real Estate
or (e) otherwise conduct any activity at any Real Estate or use any Real Estate
in any manner that might reasonably be expected to violate any Environmental Law
or bring such Real Estate in violation of any Environmental Law, if any of the
foregoing would be reasonably likely to have a material adverse effect on the
Borrower and its Subsidiaries, taken as a whole.
Section 7.11 No Amendments, Etc. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into or permit any amendment,
supplement or other modification of any charter document or by-laws of the
Borrower or any of its Subsidiaries or any Subordinated Debt Document that, in
any such case, would adversely affect the Banks.
Section 7.12 Capital Stock. The Borrower will not and will not permit
any of its Subsidiaries to, sell or transfer any treasury stock, or issue any
additional capital stock, options or warrants or any other instruments in the
nature thereof or convertible thereto; provided, however, that (a) the Borrower
may issue additional common stock, options, warrants and other instruments in
the nature thereof or convertible thereto to any Person, so long as Xxxxxxxxxx
Group, Inc. ("AGI") shall at all times own no less than 80% of total issued and
outstanding capital stock of the Borrower, (b) the Subsidiaries may issue
additional (i) capital stock, options, warrants and other instruments in the
nature thereof or convertible thereto to the Borrower or any Subsidiary of the
Borrower, as applicable, and (ii) common stock, options, warrants and other
instruments in the nature thereof or convertible thereto to any Person, provided
that the Borrower shall at all times own, directly or indirectly through one or
more Subsidiaries, no less than 80% of the total issued and outstanding capital
stock of any such issuer Subsidiary; provided, further, that, all such capital
stock, options, warrants or other instruments issued to the Borrower, any
Subsidiary or AGI pursuant to clauses (a) and (b)(i) of this Section 7.12 shall
be pledged to the Agent pursuant to the Pledge Agreement and AGI, the Borrower
and its Subsidiaries shall take all other actions from time to time as requested
by the Agent to assure that the Agent at all times has a perfected pledge of and
security interest in all of the issued and outstanding capital stock of the
Borrower owned by AGI and all of the issued and outstanding capital stock of the
Subsidiaries directly or indirectly owned by the Borrower, subject, in each
case, to no other lien or encumbrance.
Section 8. FINANCIAL COVENANTS OF THE BORROWER.
Section 8.1 Consolidated EBITDA to Consolidated Total Interest
Expense. The Borrower will not permit, as at the end of any fiscal quarter, the
ratio of (a) Consolidated EBITDA for the period of four consecutive fiscal
quarters ending at such date, to (b) Consolidated Total Interest Expense for
such period of four fiscal quarters, to be less than 1.50:1.00.
Section 8.2 Total Leverage Ratio. The Borrower will not permit as of
any date of determination, the ratio of (a) Total Debt as at such date to (b)
Consolidated EBITDA for the period of four (4) consecutive fiscal quarters most
recently ended for which Borrower has
51
supplied or is required to supply financial statements pursuant to ss.6.4(a),
and following the Closing, a Compliance Certificate, to exceed 7.25 : 1.0.
Section 8.3 Senior Leverage Ratio. The Borrower will not permit the
ratio of (a) Senior Debt as of any date to (b) Consolidated EBITDA for the four
(4) consecutive fiscal quarters most recently ended for which the Borrower has
supplied or is required to supply financial statements pursuant to ss.6.4(a)
and, following the Closing, a Compliance Certificate to exceed 2.50:1.0.
Section 8.4 Fixed Charge Coverage. The Borrower will not permit, as
at the end of any fiscal quarter, the ratio of (a) Consolidated EBITDA for the
period of four consecutive fiscal quarters then ended, to (b) Fixed Charges for
the period of four (4) consecutive fiscal quarters after such date, to be less
than 1.10:1.0.
Section 9. CLOSING CONDITIONS.
The effectiveness of this Credit Agreement and the obligation of any
Bank to make Loans on the Closing Date shall be subject to the satisfaction of
the following conditions precedent.
Section 9.1 Corporate Action. All corporate action necessary for the
valid execution, delivery and performance by the Borrower of this Credit
Agreement and the other Loan Documents to which it is or is to become a party
shall have been duly and effectively taken, and evidence thereof satisfactory to
the Banks shall have been provided to each of the Banks.
Section 9.2 Loan Documents. Each of the Loan Documents shall have
been duly executed and delivered by the respective parties thereto, shall be in
full force and effect and shall be in form and substance satisfactory to each of
the Banks. Each Bank shall have received a fully executed copy of each such
document.
Section 9.3 Opinion of Borrower's Legal Counsel. Each of the Banks
and the Agent shall have received (a) from Fulbright & Xxxxxxxx, L.L.P., legal
counsel to the Borrower, a favorable opinion addressed to the Banks and the
Agent dated the Closing Date, in substantially the form of Exhibit E hereto, and
(b) from Xxxxxx Xxxxx, FCC counsel to the Borrower, a favorable opinion
addressed to the Banks and the Agent, dated the Closing Date, in substantially
the form of Exhibit F hereto.
Section 9.4 Certified Copies of Charter Documents. Each of the Banks
shall have received from the Borrower a copy of the Borrower's and each of its
Subsidiaries' charter or other incorporation documents and by-laws certified by
the Secretaries of the Borrower and each of its Subsidiaries to be true and
complete as of the Closing Date.
Section 9.5 Incumbency Certificate. Each of the Banks shall have
received from the Borrower an incumbency certificate, dated the Closing Date,
signed by a duly authorized officer of the Borrower, and giving the name and
bearing a specimen signature of each individual who shall be authorized: (a) to
sign, in the name and on behalf of the Borrower, each of the Loan Documents to
which it is or is to become a party; (b) to make application for the Loans; and
(c) to give notices and to take other action on its behalf under the Loan
Documents.
52
Section 9.6 Good Standing Certificates. The Agent shall have
received, with a copy for each Bank, a certificate from the Secretary of State,
or other appropriate authority of such jurisdiction, evidencing the good
standing of the Borrower and its Subsidiaries in the jurisdiction of its
incorporation and each jurisdiction in which a failure to so qualify could have
a materially adverse effect on the business, operations, property or financial
or other condition of the Borrower.
Section 9.7 UCC Search Results and Filings. The Agent shall have
received from the Borrower the results of UCC searches authorized by the
Borrower, indicating no outstanding liens, other than Permitted Liens, against
the Borrower, any of its Subsidiaries, or Xxxxxxxxxx Group, Inc., and otherwise
in form and substance satisfactory to the Agent. UCC filings shall have been
made and any other actions taken all to the Agent's satisfaction to perfect the
Agent's security interest under the Collateral Assignment of Proceeds.
Section 9.8 Pledge Stock or Membership Interests. The Agent shall
have received in pledge original certificates evidencing all the outstanding
capital stock or partnership or membership interests, as applicable, of the
Borrower and each of its Subsidiaries (or, in the case of the Majority-Owned
Subsidiaries, 80% of the outstanding capital stock thereof), together with
appropriate instruments of assignment for each such certificate duly endorsed in
blank.
Section 9.9 Closing Fees. The Borrower shall pay to the Agent all
other fees and expenses then due and payable.
Section 9.10 Consents. The Agent shall have received from the
Borrower copies of all Approvals necessary as a result of the transactions
contemplated hereby.
Section 9.11 Consent of Banks. Without limiting the generality of the
provisions of Section 13.4, for purposes of determining compliance with the
conditions specified in this Section 9.11, each Bank that has signed this
Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Bank unless the
Agent shall have received notice from such Bank prior to the proposed Closing
Date specifying its objection thereto.
Section 10. CONDITIONS TO ALL BORROWINGS.
The obligation of any Bank to make any Loan, including the initial Loan
to be made on the Closing Date shall be subject to the satisfaction of the
following conditions precedent:
Section 10.1 Representations True; No Event of Default. Each of the
representations and warranties of the Borrower contained in this Credit
Agreement or in any document or instrument delivered pursuant to or in
connection with this Credit Agreement or the other Loan Documents shall be true
as of the date as of which they were made and shall also be true at and as of
the time of the making of the Loan, with the same effect as if made at and as of
that time (except to the extent of changes resulting from transactions
contemplated or permitted by this Credit Agreement and changes occurring in the
ordinary course of business that singly or in the aggregate are not materially
adverse, and to the extent that such representations and warranties
53
relate expressly to an earlier date) and no Default or Event of Default shall
have occurred and be continuing. The Agent shall have received a certificate of
the Borrower signed by an authorized officer of the Borrower to such effect.
Section 10.2 No Legal Impediment. No change shall have occurred in any
law or regulations thereunder or interpretations thereof that in the reasonable
opinion of any Bank would make it illegal for such Bank to make the Loans.
Section 10.3 Governmental Regulation. Each Bank shall have received
such statements in substance and form reasonably satisfactory to such Bank as
such Bank shall require for the purpose of compliance with any applicable
regulations of the Comptroller of the Currency or the Board of Governors of the
Federal Reserve System.
Section 10.4 Proceedings and Documents. All proceedings in connection
with the transactions contemplated by this Credit Agreement and all documents
incident thereto shall be satisfactory in substance and in form to the Banks and
to the Agent's Special Counsel, and the Banks and such counsel shall have
received all information and such counterpart originals or certified or other
copies of such documents as the Banks may reasonably request.
Section 11. EVENTS OF DEFAULT; ACCELERATION.
If any of the following events ("Events of Default" or, if the giving
of notice or the lapse of time or both is required, then, prior to such notice
or lapse of time, "Defaults") shall occur:
Section 11.1 Events of Default.
(a) the Borrower shall fail to pay any principal of the Loans
when the same shall become due and payable, whether at the stated date of
maturity or any accelerated date of maturity or at any other date fixed for
payment;
(b) the Borrower shall fail to pay any interest, fees, or
other sums due hereunder or under any of the other Loan Documents, on or prior
to the fifth day immediately succeeding the day on which the same shall become
due and payable, whether at the stated date of maturity or any accelerated date
of maturity or at any other date fixed for payment;
(c) the Borrower or any Subsidiary of the Borrower shall fail
to (i) comply with any covenants contained in this Credit Agreement or any of
the other Loan Documents other than payment covenants described in paragraphs
(a) and (b) above for twenty (20) days after written notice of such failure has
been given to the Borrower by the Agent or any Bank or (ii) comply with any
covenant or agreement set forth in any Subordinated Debt Document after the
period of grace applicable thereto;
(d) any representation or warranty of the Borrower or any of
its Subsidiaries in this Credit Agreement or any of the other Loan Documents or
in any other document or instrument delivered pursuant to or in connection with
this Credit Agreement shall prove to have been false in any material respect
upon the date when made;
54
(e) the Borrower or any of its Subsidiaries shall fail to pay
at maturity, or within any applicable period of grace, any obligation in respect
of borrowed money outstanding in an amount equal to $5,000,000;
(f) the Borrower or any of its Subsidiaries shall make an
assignment for the benefit of creditors, or admit in writing its inability to
pay or generally fail to pay its debts as they mature or become due, or shall
petition or apply for the appointment of a trustee or other custodian,
liquidator or receiver of the Borrower or any of its Subsidiaries or of any
substantial part of the assets of the Borrower or any of its Subsidiaries or
shall commence any case or other proceeding relating to the Borrower or any of
its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar law of any
jurisdiction, now or hereafter in effect, or shall take any action to authorize
or in furtherance of any of the foregoing, or if any such petition or
application shall be filed or any such case or other proceeding shall be
commenced against the Borrower or any of its Subsidiaries and the Borrower or
any of its Subsidiaries shall indicate its approval thereof, consent thereto or
acquiescence therein;
(g) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating the Borrower or any of its
Subsidiaries bankrupt or insolvent, or approving a petition in any such case or
other proceeding, or a decree or order for relief is entered in respect of the
Borrower or any Subsidiary of the Borrower in an involuntary case under federal
bankruptcy laws as now or hereafter constituted;
(h) there shall remain in force, undischarged, unsatisfied
and unstayed, for more than thirty (30) days, whether or not consecutive, any
final judgment against the Borrower or any of its Subsidiaries that, with other
outstanding final judgments, undischarged and not covered by insurance, against
such Person(s) exceeds $5,000,000;
(i) any of the Loan Documents shall be canceled, terminated,
revoked or rescinded otherwise than in accordance with the terms thereof or with
the express prior written agreement, consent or approval of the Banks, or the
Borrower or any of its Subsidiaries party to any Loan Document should disaffirm
or deny any of its obligations thereunder, or any action at law, suit or in
equity or other legal proceeding to cancel, revoke or rescind any of the Loan
Documents shall be commenced by or on behalf of the Borrower or any of its
Subsidiaries party thereto or any of their respective stockholders or holders of
partnership or membership interests, as applicable, or any court or any other
governmental or regulatory authority or agency of competent jurisdiction shall
make a determination that, or issue a judgment, order, decree or ruling to the
effect that, any one or more of the Loan Documents is illegal, invalid or
unenforceable in accordance with the terms thereof;
(j) with respect to any Guaranteed Pension Plan, an ERISA
Reportable Event shall have occurred and the Majority Banks shall have
determined in their reasonable discretion that such event reasonably could be
expected to result in liability of the Borrower or any of its Subsidiaries to
the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding
$5,000,000 and such event in the circumstances occurring reasonably could
constitute grounds for the termination of such Guaranteed Pension Plan by the
PBGC or for the appointment by the appropriate United States District Court of a
trustee to administer such Guaranteed Pension Plan;
55
or a trustee shall have been appointed by the United States District Court to
administer such Guaranteed Pension Plan; or the PBGC shall have instituted
proceedings to terminate such Guaranteed Pension Plan;
(k) the Borrower or any of its Subsidiaries shall be
enjoined, restrained or in any way prevented by the order of any court or any
administrative or regulatory agency from conducting any material part of its
business and such order shall continue in effect for more than thirty (30) days;
(l) there shall occur the loss, suspension or revocation of,
or failure to renew, any license or permit (including any FCC License) now held
or hereafter acquired by the Borrower or any of its Subsidiaries if such loss,
suspension, revocation or failure to renew would have a material adverse effect
on the business or financial condition of the Borrower or such Subsidiary;
(m) the Borrower or any of its Subsidiaries shall be indicted
for a federal crime, a punishment for which could include the forfeiture of any
assets of the Borrower or such Subsidiary having a fair market value in excess
of $9,000,000;
(n) a Change of Control shall have occurred;
(o) the Borrower shall, at any time, legally or beneficially
own, directly or indirectly through one or more other Subsidiaries, less than
eighty percent (80%) of the outstanding shares of capital stock or units of
partnership or membership interests, as applicable, of each of its Subsidiaries;
(p) the on-the-air broadcasting operations of any Station or
Stations owned by the Borrower or any of its Subsidiaries accounting for, in the
aggregate, ten percent (10%) or more of the consolidated net operating revenues
of the Borrower and its Subsidiaries are interrupted at any time for more than
one hundred and twenty (120) hours during any period of twenty (20) consecutive
days;
(q) the commencement of proceedings to suspend, revoke,
terminate or substantially and adversely modify any material FCC License if such
proceeding shall continue uncontested for forty-five (45) days, or the
designation of an application for renewal of any such material FCC License for
an evidentiary hearing if it is reasonably likely that the result thereof shall
be the termination, revocation or suspension of such FCC License;
then, and in any such event, so long as the same may be continuing, the
Agent may, and upon the request of the Majority Banks shall, by notice
in writing to the Borrower declare all amounts owing with respect to
this Credit Agreement and the Notes to be, and they shall thereupon
forthwith become, immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby
expressly waived by the Borrower; provided that in the event of any
Event of Default specified in ss.11(f) or ss.11(g), all such amounts
shall become immediately due and payable automatically and without any
requirement of notice from the Agent or any Bank.
56
If any one or more of the Events of Default specified in ss.11(f) or
ss.11(g) shall occur, any unused portion of the credit hereunder shall forthwith
terminate and each of the Banks shall be relieved of all obligations to make
Loans hereunder. If any other Event of Default shall have occurred and be
continuing, the Agent, upon the request of the Majority Banks, shall, by notice
to the Borrower, terminate the unused portion of the credit hereunder, and upon
such notice being given such unused portion of the credit hereunder shall
terminate immediately and each of the Banks shall be relieved of all further
obligations to make Loans. If any such notice is given to the Borrower the Agent
will forthwith furnish a copy thereof to each of the Banks. No termination of
the credit hereunder shall relieve the Borrower of any of the Obligations or any
of its existing obligations to the Banks arising under other agreements or
instruments.
Section 11.2 Remedies. In case any one or more of the Events of
Default shall have occurred and be continuing, and whether or not the Banks
shall have accelerated the maturity of the Loans pursuant to ss.11.1, each Bank,
if owed any amount with respect to the Loans, may, with the consent of the
Majority Banks, the Syndication Agent or the Agent, but not otherwise, proceed
to protect and enforce its rights by suit in equity, action at law or other
appropriate proceeding, whether for the specific performance of any covenant or
agreement contained in this Credit Agreement and the other Loan Documents or any
instrument pursuant to which the Obligations to such Bank are evidenced,
including as permitted by applicable law the obtaining of the ex parte
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of such Bank. No remedy herein conferred upon any Bank
or any Agent or the holder of any Note is intended to be exclusive of any other
remedy and each and every remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or any other provision of law.
Section 11.3 Distribution of Collateral Proceeds. In the event that
following the occurrence or during the continuance of any Default or Event of
Default, any Agent or any Bank, as the case may be, receives any monies in
connection with the enforcement of any of the Security Documents, or otherwise
with respect to the realization upon any of the Collateral, such monies shall be
distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Agents for or in respect of all reasonable costs, expenses,
disbursements and losses which shall have been incurred or sustained by the
Agents in connection with the collection of such monies by the Agents, for the
exercise, protection or enforcement by the Agents of all or any of the rights,
remedies, powers and privileges of the Agents under this Credit Agreement or any
of the other Loan Documents or in respect of the Collateral and to support the
provision of adequate indemnity to the Agents against all taxes or liens which
by law shall have, or may have, priority over the rights of the Agents to such
monies;
(b) Second, to all other Obligations in such order or
preference as the Majority Banks may determine; provided, however, that
distributions in respect of such Obligations owing to the Banks with respect to
each type of Obligation such as interest, principal, fees and expenses, and
Obligations under any interest rate protection agreement, shall be made among
the Banks pro rata in relation to their share of such type of Obligation; and
provided, further, that the Agents may in their discretion make proper allowance
to take into
57
account any Obligations not then due and payable (for purposes of this
ss.11.3(b), Obligations arising under any interest rate protection agreement and
principal with respect to the Loans shall be treated as the same type of
Obligation);
(c) Third, upon payment and satisfaction in full or other
provisions for payment in full satisfactory to the Banks and the Agents of all
of the Obligations, to the payment of any obligations required to be paid
pursuant to ss.9-504(1)(c) of the Uniform Commercial Code of the Commonwealth of
Massachusetts; and
(d) Fourth, the excess, if any, shall be returned to the
Borrower or to such other Persons as are entitled thereto.
Section 12. SETOFF.
If an Event of Default shall have occurred and be continuing, each Bank
and each of its affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by applicable law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final,
in whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by such Bank or any such affiliate to or for the
credit or the account of Borrower or any other Loan Party against any and all of
the obligations of Borrower or such Loan Party now or hereafter existing under
this Agreement or any other Loan Document to such Bank or any such affiliate,
irrespective of whether or not such Bank shall have made any demand under this
Agreement or any other Loan Document and although such obligations of Borrower
or such Loan Party may be contingent or unmatured or are owed to a branch or
office of such Bank different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of each Bank and their respective
affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Bank or its respective affiliates
may have. Each Bank agrees to notify Borrower and Agent promptly after any such
setoff and application, provided that the failure to give such notice shall not
affect the validity of such setoff and application. ANY AND ALL RIGHTS TO
REQUIRE THE AGENT OR ANY BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO
ANY OTHER COLLATERAL WHICH SECURES THE LOAN, PRIOR TO EXERCISING ITS RIGHT OF
SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF BORROWER OR
ANY GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
Section 13. THE AGENT.
Section 13.1 Appointment and Authorization of Agent. Each of the Banks
hereby irrevocably appoints Bank of America to act on its behalf as Agent
hereunder and under the other Loan Documents and authorizes Agent to take such
actions on its behalf and to exercise such powers as are delegated to Agent by
the terms hereof and thereof, together with such actions and powers as are
reasonably incidental thereto. The provisions of this ss.13 are solely for the
benefit of Agent and the Banks, and neither the Borrower nor any other Loan
Party shall have rights as a third party beneficiary of any of such provisions.
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Section 13.2 Rights as a Bank. The Person serving as Agent hereunder
shall have the same rights and powers in its capacity as a Bank as any other
Bank and may exercise the same as though it were not the Agent, and the term
"Bank" or "Banks" shall, unless otherwise expressly indicated or unless the
context otherwise requires, include the Person serving as Agent hereunder in its
individual capacity. Such Person and its affiliates may accept deposits from,
lend money to, act as the financial advisor or in any other advisory capacity
for and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate as if such Person were not the Agent hereunder and
without any duty to account therefor to Banks.
Section 13.3 Exculpatory Provisions. The Agent shall not have any
duties or obligations except those expressly set forth herein and in the other
Loan Documents. Without limiting the generality of the foregoing, the Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the Agent is
required to exercise as directed in writing by the Majority Banks (or such other
number or percentage of the Banks as shall be expressly provided for herein or
in the other Loan Documents), provided that the Agent shall not be required to
take any action that, in its opinion or the opinion of its counsel, may expose
the Agent to liability or that is contrary to any Loan Document or applicable
Law; and
(c) shall not, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to Borrower or any of its
Affiliates that is communicated to or obtained by the Person serving as the
Agent or any of its affiliates in any capacity.
(d) The Agent shall not be liable to any Bank for any action taken or
not taken by it (i) with the consent or at the request of the Majority Banks (or
such other number or percentage of the Banks as shall be necessary, or as Agent
shall believe in good faith shall be necessary, under the circumstances as
provided in xx.xx. 11.1, 11.2 and 24) or (ii) in the absence of its own gross
negligence or willful misconduct. The Agent shall be deemed not to have
knowledge of any Default unless and until written notice describing such Default
is given to the Agent by the Borrower or a Bank. The Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this Agreement or any
other Loan Document, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement, any other Loan Document or any other agreement,
instrument or document or (v) the satisfaction of any condition set forth in ss.
10 or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Agent.
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Section 13.4 Reliance by Agent. The Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or
otherwise authenticated by the proper Person. The Agent also may rely upon any
statement made to it orally or by telephone and believed by it to have been made
by the proper Person, and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making of a Loan,
that by its terms must be fulfilled to the satisfaction of a Bank, the Agent may
presume that such condition is satisfactory to such Bank unless the Agent shall
have received notice to the contrary from such Bank prior to the making of such
Loan. The Agent may consult with legal counsel (who may be counsel for
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
Section 13.5 Delegation of Duties. The Agent may perform any and all
of its duties and exercise its rights and powers hereunder or under any other
Loan Document by or through any one or more sub-agents appointed by the Agent.
The Agent and any such sub-agent may perform any and all of its duties and
exercise its rights and powers by or through their respective Related Parties.
The exculpatory provisions of this Article shall apply to any such sub-agent and
to the Related Parties of the Agent and any such sub-agent.
Section 13.6 Resignation of Agent. Agent may at any time give notice
of its resignation to the Banks and Borrower. Upon receipt of any such notice of
resignation, the Majority Banks shall have the right, in consultation with
Borrower, to appoint a successor, which shall be a bank with an office in the
United States, or an affiliate of any such bank with an office in the United
States. If no such successor shall have been so appointed by the Majority Banks
and shall have accepted such appointment within 30 days after the retiring Agent
gives notice of its resignation, then the retiring Agent may on behalf of the
Banks, appoint a successor Agent meeting the qualifications set forth above;
provided that if the Agent shall notify the Borrower and the Banks that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the retiring
Agent shall be discharged from its duties and obligations hereunder and under
the other Loan Documents (except that in the case of any collateral security
held by the Agent on behalf of the Banks under any of the Loan Documents, the
retiring Agent shall continue to hold such collateral security until such time
as a successor Agent is appointed) and (2) all payments, communications and
determinations provided to be made by, to or through the Agent shall instead be
made by or to each Bank directly, until such time as the Majority Banks appoint
a successor Agent as provided for above in this Section. Upon the acceptance of
a successor's appointment as Agent hereunder, such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Agent, and the retiring Agent shall be discharged from all
of its duties and obligations hereunder or under the other Loan Documents (if
not already discharged therefrom as provided above in this ss.13.6). The fees
payable by Borrower to a successor Agent shall be the same as those payable to
its predecessor unless otherwise agreed between Borrower and such successor.
After the retiring Agent's resignation hereunder and under the other Loan
Documents, the provisions of this ss.13.6 shall continue in effect for the
benefit of such retiring Agent, its sub-agents and their respective Related
Parties in respect of
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any actions taken or omitted to be taken by any of them while the retiring Agent
was acting as Agent.
Section 13.7 Non-Reliance on Agent and Other Banks. Each Bank
acknowledges that it has, independently and without reliance upon Agent or any
other Bank or any of their Related Parties and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon Agent or any other Bank or any of their
Related Parties and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement, any other Loan Document or
any related agreement or any document furnished hereunder or thereunder.
Section 13.8 No Other Duties, Etc. Anything herein to the contrary
notwithstanding, no Bank holding a title listed on the cover page hereof shall
have any powers, duties or responsibilities under this Agreement or any of the
other Loan Documents, except in its capacity, as applicable, as Agent or a Bank
hereunder.
Section 13.9 Agent May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
any Loan Party, Agent (irrespective of whether the principal of any Loan shall
then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether Agent shall have made any demand on Borrower) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans and all other Obligations
that are owing and unpaid and to file such other documents as may be necessary
or advisable in order to have the claims of the Banks and Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Banks and Agent and their respective agents and counsel and all other
amounts due the Banks and Agent under xx.xx. 2.2 and 14) allowed in such
judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Bank to make such payments to Agent and, in the event that Agent shall
consent to the making of such payments directly to Banks, to pay to Agent any
amount due for the reasonable compensation, expenses, disbursements and advances
of Agent and its agents and counsel, and any other amounts due Agent under
xx.xx. 2.2 and 14. Nothing contained herein shall be deemed to authorize Agent
to authorize or consent to or accept or adopt on behalf of any Bank any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Bank or to authorize Agent to vote in respect of the claim
of any Bank in any such proceeding.
Section 13.10 Guaranty Matters. Each Bank hereby irrevocably authorizes
Agent, at its option and in its discretion, to release any Guarantor from its
obligations under the Guaranty
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if such Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder. Upon request by Agent at any time, each Bank will confirm in writing
Agent's authority to release any Guarantor from its obligations under the
Guaranty pursuant to this ss. 13.10.
Section 13.11 Collateral Matters.
(a) Each Bank hereby irrevocably authorizes and directs Agent
to enter into the Security Documents for the benefit of such Bank. Each Bank
hereby agrees, and each holder of any Note by the acceptance thereof will be
deemed to agree, that, except as otherwise set forth in ss.24, any action taken
by the Majority Banks, in accordance with the provisions of this Agreement or
the Security Documents, and the exercise by the Majority Banks of the powers set
forth herein or therein, together with such other powers as are reasonably
incidental thereto, shall be authorized and binding upon all of the Banks. The
Agent is hereby authorized (but not obligated) on behalf of all of the Banks,
without the necessity of any notice to or further consent from any Bank from
time to time prior to, an Event of Default, to take any action with respect to
any Collateral or Security Documents which may be necessary to perfect and
maintain perfected the liens upon the Collateral granted pursuant to the
Security Documents.
(b) Each Bank hereby irrevocably authorizes the Agent, at its
option and in its discretion,
(i) to release any lien on any property granted to or
held by the Agent under any Loan Document (A) upon termination
of the Total Commitment and payment in full of all Obligations
(other than contingent indemnification obligations), (B) that
is sold or to be sold as part of or in connection with any
sale permitted hereunder or under any other Loan Document, (C)
subject to ss.24, if approved, authorized or ratified in
writing by the Majority Banks, or (D) in connection with any
foreclosure sale or other disposition of Collateral after the
occurrence of an Event of Default; and
(ii) to subordinate any Lien on any property granted to
or held by Agent under any Loan Document to the holder of any
Lien on such property that is permitted by this Agreement or
any other Loan Document.
Upon request by the Agent at any time, each Bank will confirm in writing Agent's
authority to release or subordinate its interest in particular types or items of
Collateral pursuant to this ss. 13.11(b).
(c) Subject to (b) above, Agent shall (and is hereby
irrevocably authorized by each Bank to) execute such documents as may be
reasonably necessary to evidence the release or subordination of the liens
granted to Agent for the benefit of Agent and the Banks herein or pursuant
hereto upon the applicable Collateral; provided that (i) Agent shall not be
required to execute any such document on terms which, in Agent's opinion, would
expose Agent to or create any liability or entail any consequence other than the
release or subordination of such Liens without recourse or warranty and (ii)
such release or subordination shall not in any manner discharge, affect or
impair the Obligations or any liens upon (or obligations of Borrower or any
other Loan Party in respect of) all interests retained by Borrower or any other
Loan Party,
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including the proceeds of the sale, all of which shall continue to constitute
part of the Collateral. In the event of any sale or transfer of Collateral, or
any foreclosure with respect to any of the Collateral, Agent shall be authorized
to deduct all expenses reasonably incurred by Agent from the proceeds of any
such sale, transfer or foreclosure.
(d) The Agent shall have no obligation whatsoever to any Bank
or any other Person to assure that the Collateral exists or is owned by Borrower
or any other Loan Party or is cared for, protected or insured or that the liens
granted to Agent herein or in any of the Security Documents or pursuant hereto
or thereto have been properly or sufficiently or lawfully created, perfected,
protected or enforced or are entitled to any particular priority, or to exercise
or to continue exercising at all or in any manner or under any duty of care,
disclosure or fidelity any of the rights, authorities and powers granted or
available to Agent in this ss. 13.11 or in any of the Security Documents, it
being understood and agreed that in respect of the Collateral, or any act,
omission or event related thereto, Agent may act in any manner it may deem
appropriate, in its sole discretion, given Agent's own interest in the
Collateral as one of Banks and that Agent shall have no duty or liability
whatsoever to the Banks.
(e) Each Bank hereby appoints each other Bank as agent for
the purpose of perfecting the Bank's security interest in assets which, in
accordance with Article 9 of the UCC can be perfected only by possession. Should
any Bank (other than the Agent) obtain possession of any such Collateral, such
Bank shall notify the Agent thereof, and, promptly upon Agent's request therefor
shall deliver such Collateral to the Agent or in accordance with the Agent's
instructions.
Section 14. EXPENSES.
(a) Costs and Expenses. Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Agent and its affiliates (including the
reasonable fees, charges and disbursements of counsel for Agent), in connection
with the preparation, negotiation, execution, delivery and administration of
this Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by Agent or any Bank (including the fees,
charges and disbursements of any counsel for Agent or any Bank), and shall pay
all fees and time charges for attorneys who may be employees of Agent or any
Bank, in connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its
rights under this Section, or (B) in connection with the Loans made hereunder,
including all such reasonable out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans.
(b) Indemnification by the Borrower. Borrower shall indemnify
Agent (and any sub-agent thereof), each Bank, and each Related Party of any of
the foregoing Persons (each such Person being called an "Indemnitee") against,
and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses (including the reasonable fees, charges and
disbursements of any counsel for any Indemnitee), and shall indemnify and hold
harmless each Indemnitee from all fees and time charges and disbursements for
attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or
asserted against any
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Indemnitee by any third party or by Borrower or any other Loan Party arising out
of or in connection with (i) the execution or delivery of this Agreement, any
other Loan Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective obligations
hereunder or thereunder, or the consummation of the transactions contemplated
hereby or thereby, or, in the case of Agent (and any sub-agent thereof) and its
Related Parties only, the administration of this Agreement and the other Loan
Documents, (ii) any Loan or the use or proposed use of the proceeds therefrom,
(iii) any actual or alleged presence or release of Hazardous Substances on or
from any property owned or operated by the Borrower or any of its Subsidiaries,
or any Environmental Liability attributable to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory, whether brought by a third party or by the Borrower or any
other Loan Party, and regardless of whether any Indemnitee is a party thereto,
in all cases, whether or not caused by or arising, in whole or in part, out of
the comparative, contributory or sole negligence of the Indemnitee; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or (y) result from a claim brought by Borrower or any other Loan
Party against an Indemnitee for breach in bad faith of such Indemnitee's
obligations hereunder or under any other Loan Document, if Borrower or such Loan
Party has obtained a final and nonappealable judgment in its favor on such claim
as determined by a court of competent jurisdiction.
(c) Reimbursement by Banks. To the extent that Borrower for
any reason fails to indefeasibly pay any amount required under subsection (a) or
(b) of this Section to be paid by it to Agent (or any sub-agent thereof) or any
Related Party of any of the foregoing, each Bank severally agrees to pay to
Agent (or any such sub-agent) or such Related Party, as the case may be, such
Bank's Commitment Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against Agent (or any such sub-agent) in its capacity as such, or against any
Related Party of any of the foregoing acting for Agent (or any such sub-agent)
in connection with such capacity. The obligations of the Banks under this
subsection (c) are subject to the provisions of ss. 2.6(c).
(d) Waiver of Consequential Damages, Etc. To the fullest
extent permitted by applicable law, Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of or in connection with this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or the use of the proceeds
thereof. No Indemnitee referred to in subsection (b) above shall be liable for
any damages arising from the use by unintended recipients of any information or
other materials distributed by it through telecommunications, electronic or
other information transmission systems in connection with this Agreement or the
other Loan Documents or the transactions contemplated hereby or thereby except
in the case of gross negligence or willful misconduct by such Indemnitee.
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(e) Payments. All amounts due under this Section shall be
payable not later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive
the resignation of Agent, the replacement of any Bank, the termination of the
Total Commitment and the repayment, satisfaction or discharge of all the other
Obligations.
Section 15. PAYMENTS SET ASIDE.
To the extent that any payment by or on behalf of Borrower is made to
Agent or any Bank, or Agent or any Bank exercises its right of setoff, and such
payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by Agent or such Bank in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such setoff had not occurred, and (b)
each Bank severally agrees to pay to Agent upon demand its applicable share
(without duplication) of any amount so recovered from or repaid by the Agent,
plus interest thereon from the date of such demand to the date such payment is
made at a rate per annum equal to the Federal Funds Rate from time to time in
effect. The obligations of the Banks under clause (b) of the preceding sentence
shall survive the payment in full of the Obligations and the termination of this
Agreement.
Section 16. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein,
in any of the other Loan Documents or in any documents or other papers delivered
by or on behalf of the Borrower pursuant hereto shall be deemed to have been
relied upon by the Banks and the Agent, notwithstanding any investigation
heretofore or hereafter made by any of them, and shall survive the making by the
Banks of the Loans, as herein contemplated, and shall continue in full force and
effect so long as any Obligation remains outstanding or any Bank has any
obligation to make any Loans. All statements contained in any certificate or
other paper delivered to any Bank or the Agent at any time by or on behalf of
the Borrower pursuant hereto or in connection with the transactions contemplated
hereby shall constitute representations and warranties by the Borrower
hereunder.
Section 17. SUCCESSORS AND ASSIGNS; ASSIGNMENT AND PARTICIPATION.
(a) Successors and Assigns Generally. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that
neither Borrower nor any other Loan Party may assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of
Agent and each Bank and no Bank may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an Eligible Assignee in accordance
with the provisions of subsection (b) of this ss.17, (ii) by way of
participation in accordance with the provisions of
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subsection (d) of this ss.17, or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of subsection (f) of this ss.17
(and any other attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this ss.17 and, to the extent expressly
contemplated hereby, the Related Parties of each of Agent and the Banks) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Banks. Any Bank may at any time assign to
one or more Eligible Assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
at the time owing to it); provided that (i) except in the case of an assignment
of the entire remaining amount of the assigning Bank's Commitment and the Loans
at the time owing to it or in the case of an assignment to a Bank or an
affiliate of a Bank, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) or, if the Commitment is not then
in effect, the principal outstanding balance of the Loans of the assigning Bank
subject to each such assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to Agent or, if "Trade
Date" is specified in the Assignment and Assumption, as of the Trade Date, shall
not be less than $5,000,000 unless each of Agent and, so long as no Event of
Default has occurred and is continuing, Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed); (ii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Bank's rights and obligations under this Agreement with respect to the
Loans or the Commitment assigned; (iii) any assignment of a Commitment must be
approved by Agent unless the Person that is the proposed assignee is itself a
Bank (whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee); and (iv) the parties to each assignment shall execute and
deliver to Agent an Assignment and Assumption, substantially in the form of
Exhibit G hereto (an "Assignment and Assumption") together with a processing and
recordation fee of $3,500 and the Eligible Assignee, if it shall not be a Bank,
shall deliver to Agent an Administrative Questionnaire. Subject to acceptance
and recording thereof by Agent pursuant to subsection (c) of this Section, from
and after the effective date specified in each Assignment and Assumption, the
Eligible Assignee thereunder shall be a party to this Agreement and, to the
extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Bank under this Agreement, and the assigning Bank
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Bank's rights
and obligations under this Agreement, such Bank shall cease to be a party
hereto) but shall continue to be entitled to the benefits of xx.xx. 3.5, 3.8,
3.9 and 14 with respect to facts and circumstances occurring prior to the
effective date of such assignment. Upon request, and upon return of any Note
issued to the assignor Bank, Borrower (at its expense) shall execute and deliver
a revised Note to the assignor Bank and a new Note to the assignee Bank. Any
assignment or transfer by a Bank of rights or obligations under this Agreement
that does not comply with this subsection shall be treated for purposes of this
Agreement as a sale by such Bank of a participation in such rights and
obligations in accordance with subsection (d) of this Section.
(c) Register. Agent, acting solely for this purpose as an
agent of Borrower, shall maintain at Agent's office a copy of each Assignment
and Assumption delivered to it and a
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register for the recordation of the names and addresses of the Banks, and the
Commitments of, and principal amounts of the Loans owing to, each Bank pursuant
to the terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive, and Borrower, Agent and the Banks may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a
Bank hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by each of Borrower, at
any reasonable time and from time to time upon reasonable prior notice. In
addition, at any time that a request for a consent for a material or substantive
change to the Loan Documents is pending, any Bank may request and receive from
Agent a copy of the Register.
(d) Participations. Any Bank may at any time, without the
consent of Borrower or Agent, but with notice to Borrower and Agent promptly
following such sale, sell participations to any Person (other than a natural
person or Borrower or any of Borrower's Affiliates or Subsidiaries) (each, a
"Participant") in all or a portion of such Bank's rights and/or obligations
under this Agreement (including all or a portion of its Commitment and/or the
Loans owing to it); provided that (i) such Bank's obligations under this
Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible
to the other parties hereto for the performance of such obligations and (iii)
Borrower, Agent and the Banks shall continue to deal solely and directly with
such Bank in connection with such Bank's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Bank sells such a
participation shall provide that such Bank shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Bank will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the second sentence
of ss. 24 that affects such Participant. Subject to subsection (e) of this
Section, Borrower agrees that each Participant shall be entitled to the benefits
of xx.xx. 3.5, 3.8 and 3.9 to the same extent as if it were a Bank and had
acquired its interest by assignment pursuant to subsection (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of ss. 12 as though it were a Bank.
(e) Limitations upon Participant Rights. A Participant shall
not be entitled to receive any greater payment under xx.xx. 3.5 or 3.9 than the
applicable Bank would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with Borrower's prior written consent.
(f) Certain Pledges. Any Bank may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement (including under its Note, if any) to secure obligations of such Bank
to a Federal Reserve Bank; provided that no such pledge or assignment shall
release such Bank from any of its obligations hereunder or substitute any such
pledgee or assignee for such Bank as a party hereto.
(g) Electronic Execution of Assignments. The words
"execution," "signed," "signature," and words of like import in any Assignment
and Assumption shall be deemed to include electronic signatures or the keeping
of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as
provided for in any applicable law, including the Federal Electronic Signatures
in Global and National Commerce
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Act, the New York State Electronic Signatures and Records Act, or any other
similar state laws based on the Uniform Electronic Transactions Act.
(h) Deemed Consent of Borrower. If the consent of Borrower to
an assignment to an Eligible Assignee is required hereunder (including a consent
to an assignment which does not meet the minimum assignment threshold specified
in clause (i) of the proviso to the first sentence of subsection (b)), Borrower
shall be deemed to have given its consent ten (10) Business Days after the date
notice thereof has been delivered to Borrower by the assigning Bank (through
Agent) unless such consent is expressly refused by Borrower prior to such tenth
Business Day.
Section 18. NOTICES, ETC.
(a) Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in
subsection (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopier as follows, and all
notices and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:
(i) if to the Borrower, at 000 00xx Xxxxxx, X.X., Xxxxx
000, Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxxx X. Xxxxxx
(with a copy to Fulbright & Xxxxxxxx, 000 Xxxxxxxxxxxx Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000-0000, Attention: Xxxxxxx Xxxxxx,
Esq. ) or at such other address for notice as the Borrower
shall last have furnished in writing to the Person giving the
notice;
(ii) if to the Agent or Bank of America, at the address
set forth for Bank of America on Schedule 1.1(a) hereto or
such other address for notice as Bank of America shall last
have furnished in writing to the Person giving the notice;
(iii) if to any other Bank, at the address set forth for
such Bank in Schedule 1.1(a) hereto or such other address for
notice as such Bank shall have last furnished in writing to
the Person giving the notice.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when received. Notices
delivered through electronic communications to the extent provided in subsection
(b) below, shall be effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other
communications to the Banks hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites)
pursuant to procedures approved by Agent, provided that the foregoing shall not
apply to notices to any Bank pursuant to ss. 2 if such Bank has notified the
Agent that it is incapable of receiving notices under such ss. 2 by electronic
communication. Agent or Borrower may, in its discretion, agree to accept notices
and other communications to it hereunder by electronic communications pursuant
to procedures approved by it, provided that
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approval of such procedures may be limited to particular notices or
communications. Unless Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) Change of Address, Etc. Each of the Borrower, Agent and
each Bank may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the other parties hereto. In
addition, each Bank agrees to notify Agent from time to time to ensure that
Agent has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Bank.
(d) Reliance by Agent and Banks. Agent and the Banks shall be
entitled to rely and act upon any notices (including telephonic Loan Requests)
purportedly given by or on behalf of Borrower even if (i) such notices were not
made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof.
Borrower shall indemnify Agent each Bank and the Related Parties of each of them
from all losses, costs, expenses and liabilities resulting from the reliance by
such Person on each notice purportedly given by or on behalf of Borrower. All
telephonic notices to and other telephonic communications with Agent may be
recorded by Agent, and each of the parties hereto hereby consents to such
recording.
Section 19. GOVERNING LAW.
THIS CREDIT AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS ARE
CONTRACTS UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL
PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID
COMMONWEALTH (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE
BORROWER, THE AGENT AND THE BANKS CONSENT TO THE JURISDICTION IN ANY OF THE
FEDERAL OR STATE COURTS LOCATED IN THE COMMONWEALTH OF MASSACHUSETTS IN
CONNECTION WITH ANY MATTER RELATING TO THIS CREDIT AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS.
Section 20. HEADINGS.
The captions in this Credit Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
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Section 21. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be executed in
several counterparts and by each party on a separate counterpart, each of which
when so executed and delivered shall be an original, and all of which together
shall constitute one instrument. In proving this Credit Agreement it shall not
be necessary to produce or account for more than one such counterpart signed by
the party against whom enforcement is sought.
Section 22. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection
herewith or therewith express the entire understanding of the parties with
respect to the transactions contemplated hereby. Neither this Credit Agreement
nor any term hereof may be changed, waived, discharged or terminated, except as
provided in ss.24.
Section 23. WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 24. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Except as otherwise expressly provided in this Credit Agreement, any
consent or approval required or permitted by this Credit Agreement to be given
by the Banks may be given, and any term of this Credit Agreement or of any other
instrument related hereto or mentioned herein may be amended, and the
performance or observance by the Borrower of any terms of this Credit Agreement
or such other instrument or the continuance of any Default or Event of Default
may be waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written consent of the
Borrower and the written consent of the Majority Banks. Notwithstanding the
foregoing, (i) the Maturity Date and the amount of the Commitments of the Banks
and any postponement or reduction in scheduled commitment reductions may not be
changed, (ii) the rate of interest on the Loans and the amount of the Commitment
Fee hereunder may not be decreased, (iii) all or substantially all of the
collateral security for the loans may not be released, and (iv) the terms of
this ss.24 may not be changed without the written consent of the Borrower and
the written consent of each of the Banks; the
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definition of Majority Banks may not be amended without the written consent of
each of the Banks; and ss.13 may not be amended without the written consent of
the Agent. No waiver shall extend to or affect any obligation not expressly
waived or impair any right consequent thereon. No course of dealing or delay or
omission on the part of any Bank or the Agent in exercising any right shall
operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or
demand upon the Borrower shall entitle the Borrower to other or further notice
or demand in similar or other circumstances.
Section 25. FCC APPROVAL.
Notwithstanding anything to the contrary contained in this Credit
Agreement or in the other Loan Documents, neither the Agent nor any Bank will
take any action pursuant to this Agreement or any of the other Loan Documents,
which would constitute or result in a change in control of the Borrower or any
of its Subsidiaries requiring the prior approval of the FCC without first
obtaining such prior approval of the FCC. After the occurrence of an Event of
Default, the Borrower shall take or cause to be taken any action which the Agent
may reasonably request in order to obtain from the FCC such approval as may be
necessary to enable the Agent to exercise and enjoy the full rights and benefits
granted to the Agent, for the benefit of the Banks by this Credit Agreement or
any of the other Loan Documents, including, at the Borrower's cost and expense,
the use of the Borrower's best efforts to assist in obtaining such approval for
any action or transaction contemplated by this Credit Agreement or any of the
other Loan Documents for which such approval is required by law.
Section 26. SEVERABILITY.
The provisions of this Credit Agreement are severable and if any one
clause or provision hereof shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision, or part thereof, in such jurisdiction, and shall
not in any manner affect such clause or provision in any other jurisdiction, or
any other clause or provision of this Credit Agreement in any jurisdiction.
Section 27. CONFIDENTIALITY.
Each of the Banks and the Agent, and each Participant, agrees to keep
any non-public information delivered or made available to it pursuant to this
Credit Agreement or any other Loan Document confidential from any Person other
than officers, employees, agents, designees or representatives of such Bank or
the Agent or such Participant who are or are expected to become engaged in
evaluating, approving, structuring or administering this Credit Agreement or any
of the other Loan Documents; provided, that, nothing herein shall prevent the
Agent, any Bank or any Participant from disclosing such information (i) to any
assignee or participant that has agreed in writing to comply with the
confidentiality provision of this ss.27 in connection with the contemplated
assignment or participation, (ii) to any of its Affiliates to the extent any
such Affiliates require such information in the ordinary course of the Agent's,
such Bank's or such Participant's credit committee or asset management
procedures, (iii) as required or requested by any governmental authority or
representative thereof, (iv) pursuant to legal process, or (v) as required in
connection with the exercise of any remedy under this Credit Agreement or any of
71
the other Loan Documents; provided further that in the event of any such
required or requested disclosure by the Agent, any Bank or any Participant
pursuant to clause (iii) or (iv) hereof, Agent, such Bank or such Participant
will notify the Borrower of such request or requirement so that the Borrower may
seek an appropriate protective order or waive compliance with the provisions of
this Agreement.
Section 28. USA PATRIOT Act Notice.
Each Bank that is subject to the Act (as hereinafter defined) and Agent
(for itself and not on behalf of any Bank) hereby notifies Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Act"), it is required to obtain,
verify and record information that identifies Borrower, which information
includes the name and address of Borrower and other information that will allow
such Bank or Agent, as applicable, to identify Borrower in accordance with the
Act.
Section 29. DESIGNATION AS SENIOR DEBT.
All Obligations shall be "Designated Senior Debt" for purposes of and
as defined in the ACC 7 3/4% Senior Subordinated Indenture, and all supplemental
indentures thereto.
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IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement under seal as of the date first set forth above.
XXXXXXXXXX COMMUNICATIONS COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
BANK OF AMERICA, N.A.
as Administrative Agent and as a Bank
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Managing Director
DEUTSCHE BANK SECURITIES INC.,
as Syndication Agent
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as a Bank
By: /s/ Xxxxxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxxxxx Xxxxxx
Title: Director
By: /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title: Director
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