================================================================================
SALEM COMMUNICATIONS HOLDING CORPORATION
----------------------------------------
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF NOVEMBER 7 , 2000
BY AND AMONG
SALEM COMMUNICATIONS HOLDING CORPORATION,
THE BANK OF NEW YORK,
AS ADMINISTRATIVE AGENT,
BANK OF AMERICA, N.A.
AS SYNDICATION AGENT,
FLEET NATIONAL BANK
AS DOCUMENTATION AGENT,
UNION BANK OF CALIFORNIA, N.A.
AND
THE BANK OF NOVA SCOTIA,
AS CO-AGENTS
AND
THE LENDERS PARTY HERETO
----------------------------------------
WITH
BNY CAPITAL MARKETS, INC.,
AS LEAD ARRANGER AND BOOK MANAGER
================================================================================
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 7,
2000, by and among SALEM COMMUNICATIONS HOLDING CORPORATION, a Delaware
corporation (the "BORROWER"), THE BANK OF NEW YORK, as administrative agent for
the Lenders hereunder (in such capacity, the "ADMINISTRATIVE AGENT"), BANK OF
AMERICA, N.A. as Syndication Agent (in such capacity, the "SYNDICATION AGENT"),
FLEET NATIONAL BANK, as Documentation Agent (in such capacity, the
"DOCUMENTATION AGENT"), UNION BANK OF CALIFORNIA and THE BANK OF NOVA SCOTIA, as
Co-Agents (in such capacity, the "CO-AGENTS") and each Lender party hereto or
which becomes a "Lender" pursuant to the provisions of Section 11.7 (each a
"LENDER" and, collectively, the "LENDERS").
RECITALS
A. Reference is made to the Credit Agreement, dated as of September 25,
1997, by and among Salem Communications Corporation, a California corporation
("SALEM CALIFORNIA"), the lenders party thereto, Bank of America NT&SA, as
Documentation Agent, and The Bank of New York, as Administrative Agent (as
amended prior to the First Restatement Date (as defined below), the "ORIGINAL
CREDIT AGREEMENT").
B. On March 31, 1999, Salem California merged into Salem Communications
Corporation, a Delaware corporation (the "PARENT") with the Parent as the
survivor. In connection therewith, the Parent assumed all of the obligations of
Salem California under the Loan Documents (as defined in the Original Credit
Agreement).
C. The Original Credit Agreement was amended and restated in its
entirety by the First Amended and Restated Credit Agreement, dated as of June
30, 1999 (the "FIRST RESTATEMENT DATE"), by and among the Parent, as borrower,
The Bank of New York, as Administrative Agent, Bank of America NT&SA, as
Documentation Agent, BankBoston, N.A., Fleet Bank, N.A. and Union Bank of
California, N.A., as Co-Agents and each Lender party thereto (as amended prior
to the Second Restatement Date (as defined below), the "FIRST RESTATED
AGREEMENT").
D. The First Restated Agreement was amended and restated in its
entirety by the Second Amended and Restated Credit Agreement, dated as of August
24, 2000 (the "SECOND RESTATEMENT DATE"), by and among the Borrower, as
borrower, The Bank of New York, as Administrative Agent, Bank of America, N.A.,
as Syndication Agent, Fleet National Bank, as Documentation Agent, Union Bank of
California and The Bank of Nova Scotia, as Co-Agents and each Lender party
thereto (as amended prior to the Third Restatement Date (as defined below), the
"SECOND RESTATED AGREEMENT").
E. Pursuant to the Agreement to Amend (as hereinafter defined) and the
Contribution Documents (as hereinafter defined), immediately prior to the
effectiveness
of the Second Restated Agreement, the Parent contributed all of its assets
(other than its Stock in the Borrower and Acquisition Corp. (as hereinafter
defined) and the proceeds of the Bridge Loans (as hereinafter defined)) to the
Borrower (the "BORROWER CONTRIBUTION") and the Borrower assumed all of the
Parent's liabilities, including, without limitation, its liabilities under the
First Restated Agreement;
F. Prior to the effectiveness of the Second Restated Agreement, Salem
Media of California, Inc., a former wholly-owned Subsidiary of the Parent
("SALEM MEDIA"), entered into the Asset Purchase Agreement, dated July 14, 2000,
between Salem Media and Hi-Favor Broadcasting, LLC, as amended by Amendment No.
1, dated as of August 15, 2000 (the "KLTX SALE AGREEMENT") for the sale of
KLTX-AM serving Long Beach, California (the "KLTX SALE"). In connection with the
KLTX Sale Agreement, Salem Media entered into the Exchange Agreement, dated
August 17, 2000 (the "EXCHANGE AGREEMENT"), between Salem Media and Chicago
Deferred Exchange Corporation pursuant to which proceeds from the KLTX Sale (the
"KLTX PROCEEDS") were deposited into the Exchange Trust Account (as defined in
the Exchange Agreement). The KLTX Proceeds were used to partially fund the
Borrower Acquisitions (as hereinafter defined).
G. Prior to, or contemporaneously with, the effectiveness of the Second
Restated Agreement, the following events occured:
(1) The Parent entered into the Bridge Credit Agreement and
borrowed $58,000,000 thereunder;
(2) The Parent made an equity contribution of the net proceeds
of the Bridge Loans (other than an amount to fund an interest reserve of
approximately $7,200,000 and an amount to pay transaction expenses related to
the Bridge Loans and the Acquisition Corp. Acquisition (as hereinafter defined))
to Salem Communications Acquisition Corporation ("ACQUISITION CORP."), a newly
created Delaware corporation and a wholly-owned Subsidiary of the Parent (the
"ACQUISITION CORP. CONTRIBUTION" and, together with the Borrower Contribution,
the "CONTRIBUTIONS");
(3) Acquisition Corp. used all or substantially all of the
Acquisition Corp. Contribution to acquire (the "ACQUISITION CORP. ACQUISITION")
Broadcasting Station KALC-FM serving Denver, Colorado from one or more
Subsidiaries or Affiliates of Clear Channel Communications, Inc. (collectively,
"CLEAR CHANNEL") for an aggregate consideration of $47,000,000; and
(4) the Borrower or a wholly-owned Subsidiary thereof acquired
(the "BORROWER ACQUISITION" and, together with the Acquisition Corp.
Acquisition, the "INITIAL ACQUISITIONS") Broadcasting Stations (i) KDGE-FM
serving Dallas, Texas, (ii) WRMR-AM and WKNR-AM serving Cleveland, Ohio, (iii)
WBOB-AM and
-2-
WYGY-FM serving Cincinnati, Ohio, and (iv) KEZY-AM and KXMX-FM serving Anaheim,
California from Clear Channel.
H. On the Third Restatement Date, the parties hereto desire to make
certain changes to the Second Restated Agreement by amending and restating the
Second Restated Agreement in its entirety as hereinafter set forth.
I. This Agreement amends and restates in its entirety the Second
Restated Agreement.
J. For convenience, this Agreement is dated as of November 7, 2000 (the
"THIRD RESTATEMENT DATE", and references to certain matters relating to the
period prior thereto have been deleted.
1. DEFINITIONS
1.1 DEFINED TERMS.
As used in this Agreement, terms defined in the preamble have
the meanings therein indicated, and the following terms have the following
meanings:
"ABR LOANS": the Loans (or any portions thereof) at such time
as they (or such portions) are made or are being maintained at a rate of
interest based upon the Alternate Base Rate.
"ACCOUNTANTS": Ernst & Young LLP, or such other firm of
certified public accountants of recognized national standing selected by the
Borrower and reasonably satisfactory to the Administrative Agent.
"ACQUISITION CORP.": as defined in paragraph 2 of Recital G.
"ACQUISITION CORP. ACQUISITION": as defined in paragraph 2 of
Recital G.
"ACQUISITION CORP. CONTRIBUTION": as defined in paragraph 2 of
Recital G.
"ACQUISITION DOCUMENTS": collectively, (i) the Asset Purchase
Agreement, dated as of March 5, 2000, between the Parent and Clear Channel, (ii)
the Exchange Documents and (iii) each other agreement, instrument or other
document executed or delivered in connection therewith, including all approvals
and consents obtained, and all legal opinions delivered, in connection with the
Initial Acquisitions (and, in the case of each such legal opinion, evidence
satisfactory to the Administrative Agent that the Credit Parties shall be
permitted to rely thereon).
-3-
"ADJUSTED OPERATING CASH FLOW": Operating Cash Flow LESS Other
Media Cash Flow.
"AFFECTED LOAN": as defined in Section 2.15.
"AFFILIATE": as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, control of a Person
shall mean the power, direct or indirect, (i) to vote 5% or more of the
securities having ordinary voting power for the election of directors of such
Person or (ii) to direct or cause direction of the management and policies of
such Person whether by contract or otherwise.
"AGREEMENT": this Third Amended and Restated Credit Agreement.
"AGREEMENT TO AMEND": the Agreement to Amend and Restate
and Assumption Agreement, dated as of August 24, 2000, among the Parent, the
Borrower and the Credit Parties.
"ALTERNATE BASE RATE": on any date, a rate of interest per
annum equal to the higher of (i) the BNY Rate in effect on such date or (ii) 1/2
of 1% plus the Federal Funds Rate in effect on such date.
"APPLICABLE MARGIN": (a) subject to paragraph (b) of this
definition, at all times during the applicable periods set forth below, (i) with
respect to the unpaid principal amount of the ABR Loans, the percentage set
forth below under the heading "ABR Margin" next to the applicable period, and
(ii) with respect to the unpaid principal amount of the Eurodollar Loans and
fees payable under Section 3.1(c), the percentage set forth below under the
heading "Eurodollar and LC Margin" next to the applicable period:
WHEN THE TOTAL LEVERAGE RATIO IS EURODOLLAR AND LC
GREATER THAN OR EQUAL TO MARGIN
AND LESS THAN ABR MARGIN
----------------------------------- ------------------ ------------------- -------------------
6.50:1.00 1.500% 2.750%
----------------------------------- ------------------ ------------------- -------------------
6.00:1.00 6.50:1.00 1.250% 2.500%
----------------------------------- ------------------ ------------------- -------------------
5.50:1.00 6.00:1.00 1.000% 2.250%
----------------------------------- ------------------ ------------------- -------------------
5.00:1.00 5.50:1.00 0.625% 1.875%
----------------------------------- ------------------ ------------------- -------------------
4.50:1.00 5.00:1.00 0.250% 1.500%
----------------------------------- ------------------ ------------------- -------------------
4.00:1.00 4.50:1.00 0% 1.250%
----------------------------------- ------------------ ------------------- -------------------
3.50:1.00 4.00:1.00 0% 1.000%
----------------------------------- ------------------ ------------------- -------------------
3.50:1.00 0% 0.875%
=================================== ================== =================== ===================
(b) Changes in the Applicable Margin resulting from a change
in the Total Leverage Ratio, as evidenced by a Compliance Certificate delivered
to the
-4-
Administrative Agent pursuant to Section 7.1(d), a Borrowing Request or Letter
of Credit Request delivered to the Administrative Agent pursuant to Section
5.2(c) or a notice of prepayment pursuant to Section 2.5(a) (in the case of a
Borrowing Request, Letter of Credit Request and notice of prepayment resulting
in a net increase or decrease, as applicable, in the aggregate outstanding RC
Loans and Letter of Credit Exposure of all Lenders on any Business Day of
$10,000,000 or more) in each case evidencing such a change, shall become
effective upon (i) in the case of the delivery of a Compliance Certificate, the
first Business Day following the delivery of (x) such Compliance Certificate and
(y) the applicable financial statements required to be delivered pursuant to
Section 7.1(a) or (c), as the case may be, and (ii) in the case of the delivery
of a Borrowing Request, Letter of Credit Request or notice of prepayment, the
Borrowing Date or the prepayment date, as the case may be, applicable thereto.
If the Borrower shall fail to deliver a Compliance Certificate within 60 days
after the end of any of the first three fiscal quarters, or within 105 days
after the end of the last fiscal quarter, of each fiscal year (each a
"CERTIFICATE DELIVERY DATE"), for purposes of calculating the Applicable Margin,
the Total Leverage Ratio from and including such certificate delivery date to
the date of delivery by the Borrower to the Administrative Agent of such
Compliance Certificate shall be conclusively presumed to be greater than
6.50:1.00. Notwithstanding anything to the contrary contained in this
definition, during the period commencing on the Second Restatement Date and
ending on the date that is nine months thereafter, the Total Leverage Ratio
(solely for purposes of this definition) shall be deemed to be not less than
6.00:1.00.
"ASSIGNMENT": as defined in Section 11.7(b).
"ASSIGNMENT AND ASSUMPTION AGREEMENT": an agreement
substantially in the form of Exhibit J.
"ASSIGNMENT FEE": as defined in Section 11.7(b).
"AUTHORIZED SIGNATORY": the chief executive officer, the
chief financial officer, the chief operating officer, the president, a general
partner or any other duly authorized officer (acceptable to the Administrative
Agent) of a Loan Party.
"BNY": The Bank of New York.
"BNY RATE": a rate of interest per annum equal to the rate of
interest publicly announced in New York City by BNY from time to time as its
prime commercial lending rate, such rate to be adjusted automatically (without
notice) on the effective date of any change in such publicly announced rate.
"BORROWER ACQUISITION": as defined in paragraph 4 of Recital
G.
-5-
"BORROWER CONTRIBUTION": as defined in Recital E.
"BORROWER SECURITY AGREEMENT": the Second Amended and
Restated Borrower Security Agreement, dated as of August 24, 2000, between the
Borrower and the Administrative Agent, substantially in the form attached hereto
as Exhibit H.
"BORROWING DATE": (i) any Business Day specified in a
Borrowing Request as a date on which the Borrower requests the Lenders to make
Loans or (ii) any Business Day specified in a Letter of Credit Request as a date
on which the Borrower requests the Issuing Bank to issue a Letter of Credit.
"BORROWING REQUEST": a Borrowing Request substantially in the
form of Exhibit C.
"BRIDGE AGENT": ING Barings LLC in its capacity as agent under
the Bridge Credit Agreement.
"BRIDGE CREDIT AGREEMENT": the Bridge Credit Agreement,
dated as of August 24, 2000, among the Parent, the lenders party thereto and the
Bridge Agent.
"BRIDGE GUARANTEE": the Guarantee and Security Agreement,
dated as of August 24, 2000, among Acquisition Corp. and its Subsidiaries from
time to time party thereto and the Bridge Agent.
"BRIDGE LOAN DOCUMENTS": collectively, (i) the Bridge Credit
Agreement, (ii) the promissory notes issued pursuant thereto, (iii) the Bridge
Security Agreement, (iv) the Bridge Guarantee, (vi) the Bridge Warrants and (vi)
all other documents executed and delivered pursuant to the Bridge Credit
Agreement.
"BRIDGE LOANS": the loans made pursuant to the Bridge Credit
Agreement.
"BRIDGE SECURITY AGREEMENT": the Security Agreement, dated
as of August 24, 2000, between the Parent and the Bridge Agent.
"BRIDGE WARRANTS": the Warrants to be issued to the Bridge
Lenders as provided in the Bridge Credit Agreement.
"BRIDGE TERMINATION DATE": the date on which all obligations
of the Parent, Acquisition Corp. and each of its Subsidiaries under the Bridge
Loan Documents have been paid in full, all commitments thereunder have been
terminated and each of the Bridge Loan Documents has been terminated and each of
the Parent, Acquisition Corp. and its Subsidiaries have been released
thereunder.
-6-
"BROADCASTING STATION": all related licenses, franchises and
permits 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 broadcasting radio programming, together with all Property owned or used in
connection with the programming provided pursuant to, and all interest of such
Person to receive revenues from any other Person which derives revenues from or
pursuant to, said licenses, franchises and permits. The term "Broadcasting
Station" shall also include a corporation incorporated in the United States
which shall own one or more Broadcasting Stations.
"BUSINESS DAY": (i) for all purposes other than as set forth
in clause (ii) below, any day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law or
other governmental action to close and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
Eurodollar Loans, any day which is a Business Day described in clause (i) above
and which is also a day on which dealings in foreign currency and exchange
between banks in the interbank eurodollar market may be carried on as determined
by the Administrative Agent.
"CCM": CCM Communications, Inc., prior to the Borrower
Contribution, a wholly-owned Subsidiary of the Parent and on and after the
Borrower Contribution, a wholly-owned Subsidiary of the Borrower.
"CERCLA": the Comprehensive Environmental Response,
Compensation and Liability Act, as set forth at 42 U.S.C. Section 9601, ET SEQ.
"CHANGE OF CONTROL": any of the following: (i) the Permitted
Holders fail to own (A) at least 51% of the total outstanding Voting Stock of
the Parent or (B) at least 35% of the economic interest of the Parent, (ii) the
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Parent by Persons who were neither (a) nominated by the board
of directors of the Parent nor (b) appointed by directors so nominated, (iii)
the failure of the Parent to own directly, beneficially and of record, 100% of
the aggregate ordinary voting power represented by the issued and outstanding
equity securities of the Borrower on a fully diluted basis, or (iv) the
occurrence of a "Change of Control" (under and as defined in the Subordinated
Indenture).
"CLEAR CHANNEL": as defined in paragraph 3 of Recital G.
"CODE": the Internal Revenue Code of 1986.
"COLLATERAL": collectively, the Collateral under and as
defined in the Collateral Documents.
-7-
"COLLATERAL DOCUMENTS": collectively, the Borrower Security
Agreement, the Parent Guaranty, the Parent Security Agreement, the Subsidiary
Guaranty and the Mortgages.
"COMMITMENT FEE" and "COMMITMENT FEES": as defined in Section
3.1(a).
"COMMON GROUND COLLATERAL RELEASE": as defined in Section
11.1.
"COMMON GROUND REORGANIZATION": collectively, (i) the transfer
of certain of the assets of Common Ground Broadcasting, Inc. and Xxxxx
Broadcasting, Inc. to the Borrower or one or more wholly-owned Subsidiaries, and
(ii) the merger of Xxxxx Broadcasting, Inc. with and into the Borrower, with the
Borrower as the survivor.
"COMMONLY CONTROLLED ENTITY": any Subsidiary or any entity,
whether or not incorporated, which is under common control with the Borrower
within the meaning of Section 414(b) or 414(c) of the Code.
"COMMUNICATIONS ACT": the Communications Act of 1934.
"COMPLIANCE CERTIFICATE": a certificate substantially in the
form of Exhibit G.
"CONSOLIDATED": as to any Person, such Person and its
Subsidiaries which are consolidated for financial reporting purposes.
"CONSOLIDATED ADJUSTED OPERATING CASH FLOW": Adjusted
Operating Cash Flow of the Parent and its Subsidiaries on a Consolidated basis.
"CONSOLIDATED ANNUAL ADJUSTED OPERATING CASH FLOW": at any
date of determination, Consolidated Adjusted Operating Cash Flow for the period
of four consecutive fiscal quarters ending on, or most recently before, such
date.
"CONSOLIDATED ANNUAL OPERATING CASH FLOW": at any date of
determination, Consolidated Operating Cash Flow for the period of four
consecutive fiscal quarters ending on, or most recently before, such date.
"CONSOLIDATED OPERATING CASH FLOW": Operating Cash Flow of the
Parent and its Subsidiaries on a Consolidated basis.
"CONSOLIDATING": as to any Person, such Person and its
Subsidiaries taken separately.
"CONTINGENT OBLIGATION": as to any Person, any obligation of
such Person guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other
-8-
obligations ("primary obligations") of any other Person (the "primary obligor")
in any manner, whether directly or indirectly, including, without limitation,
any obligation of such Person, whether or not contingent, (i) to purchase any
such primary obligation or any Property constituting direct or indirect security
therefor, (ii) to advance or supply funds for the purchase or payment of any
such primary obligation or to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase Property, securities or services primarily
for the purpose of assuring the beneficiary of any such primary obligation of
the ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the beneficiary of such primary
obligation against loss in respect thereof; PROVIDED, however, that the term
Contingent Obligation shall not include the indorsement of instruments for
deposit or collection in the ordinary course of business. The term Contingent
Obligation shall also include the liability of a general partner in respect of
the Indebtedness of a partnership in which it is a general partner, excluding
Indebtedness which is non-recourse to such general partner. The amount of any
Contingent Obligation of a Person shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by such Person
in good faith.
"CONTRIBUTIONS": as defined in paragraph 2 of Recital G.
"CONTRIBUTION DOCUMENTS": collectively, (i) Assignment and
Assumption Agreement, dated as of August 24, 2000, between the Borrower and the
Parent, and (ii) each other agreement, instrument or other document executed or
delivered in connection the Contributions, including all approvals and consents
obtained and all legal opinions delivered.
"CONTROL PERSON": as defined in Section 2.14.
"COPYRIGHT ACT": Title 17 of the United States Code.
"CREDIT EXPOSURE" with respect to any Lender at any time, its
RC Commitment or, if no RC Commitment is in effect, the sum of its outstanding
RC Loans and Letter of Credit Exposure, at such time.
"CREDIT PARTIES": the Administrative Agent, the Issuing Bank
and the Lenders.
"DEBT SERVICE": at any date of determination, the sum of
Interest Expense and scheduled principal amortization (including scheduled
mandatory reductions of revolving credit and similar commitments) of Total
Funded Debt, whether or not actually
-9-
paid, for the period of four consecutive fiscal quarters ending on, or most
recently before, such date.
"DEFAULT": any of the events specified in Section 9, whether
or not any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"DESIGNATED TRANSACTIONS": as defined in Section 8.3(c).
"DOLLARS" and "$": lawful currency of the United States of
America.
"EMMIS": Emmis Communications Corporation, an Indiana
corporation.
"ENVIRONMENTAL LAWS": any and all federal, state and local
laws relating to the environment, the use, storage, transporting, manufacturing,
handling, discharge, disposal or recycling of hazardous substances, materials or
pollutants or industrial hygiene and including, without limitation, (i) CERCLA;
(ii) the Resource Conservation and Recovery Act of 1976, 42 USCA Section 6901 ET
SEQ.; (iii) the Toxic Substance Control Act, 15 USCA Section 2601 ET. SEQ.; (iv)
the Water Pollution Control Act, 33 USCA Section 1251 et. SEQ.; (v) the Clean
Air Act, 42 USCA Section 7401 et seq.; (vi) the Hazardous Material
Transportation Authorization Act of 1994, 49 USCA Section 5101 ET SEQ. and
(viii) all rules, regulations judgments, decrees, injunctions and restrictions
thereunder and any analogous state law, in each case as from time to time in
effect.
"EQUITY ISSUANCE": (a) the issuance or sale by the Parent or
any of its Subsidiaries after the Second Restatement Date of (i) any capital
stock (other than capital stock issued on the exercise of the Bridge Warrants or
any other warrants or options described in clause (ii) below), (ii) any warrants
or options exercisable in respect of capital stock (other than any warrants or
options issued to directors, officers or employees of the Parent or of any of
its Subsidiaries), (iii) any other security or instrument representing an equity
interest (or the right to obtain any equity interest) in the issuing or selling
Person or (b) the receipt by the Parent or any of its Subsidiaries after the
Second Restatement Date of any capital contribution (whether or not evidenced by
any equity security issued by the recipient of that contribution) other than (x)
the Dropdown (as defined in the Parent Guaranty) and (y) any capital
contribution by (1) any Subsidiary of the Parent to the Parent or to any
wholly-owned Subsidiary of the Parent or (2) the Parent or by any wholly-owned
Subsidiary of the Parent to any Subsidiary of the Parent (other than a capital
contribution made with the Net Equity Proceeds of an Equity Issuance described
in clause (a) of this definition). For purposes of this definition, prior to the
Bridge Termination Date, Subsidiaries of the Parent shall not include
Acquisition Corp. or any of its Subsidiaries.
"ERISA": the Employee Retirement Income Security Act of 1974.
-10-
"EURODOLLAR LOAN": a portion of the Loans selected by the
Borrower to bear interest during an Interest Period selected by the Borrower at
a rate per annum based upon a Eurodollar Rate determined with reference to such
Interest Period, all pursuant to and in accordance with Sections 2.3 and 2.8.
"EURODOLLAR RATE": with respect to any Interest Period, the
rate per annum, as determined by the Administrative Agent, obtained by dividing
(and then rounding to the nearest 1/16 of 1%, or, if there is no nearest 1/16 of
1%, the next higher 1/16 of 1%):
(a) the rate quoted by the Administrative Agent to
major banks in the interbank eurodollar market as the rate at which the
Administrative Agent is offering Dollar deposits in an amount approximately
equal to BNY's pro rata share of the given portion of the Loans selected by the
Borrower to bear interest during such Interest Period based upon a rate of
interest determined under this definition, and having a term to maturity
corresponding to such Interest Period, as quoted at approximately 10:00 A.M. two
Business Days prior to the date upon which such Interest Period is to commence,
by
(b) a number equal to 1.00 minus the aggregate of the
then stated maximum rates during such Interest Period of all reserve
requirements (including, without limitation, marginal, emergency, supplemental
and special reserves), expressed as a decimal, established by the Board of
Governors of the Federal Reserve System and any other banking authority to which
BNY and other major United States banks or money center banks are subject, in
respect of eurocurrency funding (currently referred to as "Eurocurrency
liabilities" in Regulation D of the Board of Governors of the Federal Reserve
System). Such reserve requirements shall include, without limitation, those
imposed under such Regulation D. Eurodollar Loans shall be deemed to constitute
Eurocurrency liabilities and as such shall be deemed to be subject to such
reserve requirements without benefit of credits for proration, exceptions or
offsets which may be available from time to time to any Lender under such
Regulation D. The Eurodollar Rate shall be adjusted automatically on and as of
the effective date of any change in any such reserve requirement.
"EVENT OF DEFAULT": any of the events specified in Section 9,
PROVIDED that any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"EXCESS CASH FLOW": at any time, in respect of any period,
Consolidated Operating Cash Flow for such period (before any adjustments to
reflect acquisitions, sales and exchanges of Property during such period) LESS
the sum of, without duplication, (i) Fixed Charges, (ii) voluntary principal
prepayments made pursuant to Section 2.5(a), PROVIDED that the RC Commitments
are permanently reduced in an aggregate amount equal to such prepayments made
under Section 2.5(a) and (iii) loans made to, and
-11-
investments made in, any Other Media Subsidiary by the Borrower or any other
Subsidiary to the extent permitted by Section 8.5(h).
"EXCHANGE ACT": the Securities Exchange Act of 1934.
"EXCHANGE AGREEMENT": as defined in Recital F.
"EXCHANGE DOCUMENTS": (i) the KLTX Sale Agreement, (ii) the
Exchange Agreement, (iii) the Qualified Exchange Trust Agreement, dated as of
August 17, 2000, among The Chicago Trust Company of California, Chicago Deferred
Exchange Corporation and Salem Media of California, Inc., and (iv) each other
agreement, instrument or other document executed or delivered in connection
therewith.
"EXCLUDED CASH FLOW": at any time, for any period, Operating
Cash Flow for such period allocable to all Excluded Properties at such time.
"EXCLUDED PROPERTY": at any time, any Broadcasting Station,
designated in writing by the Borrower to the Administrative Agent and the
Lenders as an Excluded Property, that was acquired by the Borrower or any
Subsidiary within the immediately preceding 18 month period and in respect of
which the Borrower changed the non-religious format from that in effect at the
time such Broadcasting Station was acquired by the Borrower or such Subsidiary
to a religious talk, conservative talk or religious music format.
"EXCLUDED TAXES": with respect to any Credit Party or any
other recipient of any payment to be made by or on account of any obligation of
any Loan Party under any Loan Document, (a) income or franchise taxes imposed on
(or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Credit Party, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which such Loan Party is located and (c) in the case of a
Foreign Lender, any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
(or designates a new lending office) or is attributable to such Foreign Lender's
failure to comply with Section 2.13(e), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a
new lending office (or assignment), to receive additional amounts from such Loan
Party with respect to such withholding tax pursuant to Section 2.13(a).
"FCC": the Federal Communications Commission, or any
Governmental Authority succeeding to the functions thereof.
-12-
"FEDERAL FUNDS RATE": for any day, the rate per annum (rounded
to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, then to the
next higher 1/16 of 1%) equal to the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers on such day, as published by the Federal Reserve Bank
of New York on the Business Day next succeeding such day, PROVIDED that (i) if
the day for which such rate is to be determined is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (ii) if such rate is not so published for any day, the Federal Funds Rate
for such day shall be the average rate charged to the Administrative Agent on
such day on such transactions as determined by the Administrative Agent.
"FIRST RESTATED AGREEMENT": as defined in Recital C.
"FIRST RESTATEMENT DATE": as defined in Recital C.
"FIXED CHARGES": at any date of determination, the sum,
without duplication, of (a) Debt Service, (b) cash income taxes paid (other than
cash taxes paid in connection with a sale of Property but only to the extent
such cash taxes are paid from the proceeds of such sale), (c) capital
expenditures (excluding (i) capital expenditures made with insurance proceeds
and capital expenditures associated with an acquisition made within the 12 month
period immediately following such acquisition and (ii) capital expenditures made
in the network operations center located in Dallas, Texas (not in excess of
$4,000,000) in the aggregate), and (d) intercompany loans made to, or
investments made in, the Other Media Subsidiaries, in each case of the Parent
and its Subsidiaries on a Consolidated basis, determined in accordance with
GAAP, for the period of four consecutive fiscal quarters ending on, or most
recently before, such date.
"FOREIGN LENDER": any Lender that is organized under the laws
of a jurisdiction other than that in which the applicable Loan Party is located.
For purposes of this definition, the United States of America, each State
thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"GAAP": generally accepted accounting principles 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 in such other
statement by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination, consistently applied. If at any time any change in GAAP
would affect the computation of any financial ratio or requirement set forth in
this Agreement, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to reflect such
change in GAAP (subject to the approval of the Required Lenders), PROVIDED that,
until so
-13-
amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent, and the Lenders 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.
"GOVERNMENTAL AUTHORITY": the government of the United States
of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"GUARANTORS": collectively, (i) the Parent, (ii) the
Subsidiary Guarantors and (iii) on and after the Bridge Termination Date,
Acquisition Corp. and each of its Subsidiaries.
"HAZARDOUS DISCHARGE": as defined in Section 11.11(b).
"HIGHEST LAWFUL RATE": as to any Lender, the maximum rate of
interest, if any, that at any time or from time to time may be contracted for,
taken, charged or received by such Lender on the Notes held thereby, or which
may be owing to such Lender pursuant to this Agreement and the other Loan
Documents under the laws applicable to such Lender and this transaction.
"HOUSTON TRANSACTION": the exchange by the Borrower or a
Subsidiary of (i) Broadcasting Station KKHT-FM serving Houston, Texas for (ii)
Broadcasting Station WALR-FM serving Atlanta, Georgia and Broadcasting Stations
KLUP-AM serving San Antonio, Texas and WSUN-AM serving Tampa, Florida, all of
which are currently owned by Xxx Radio, Inc.
"INDEBTEDNESS": as to any Person, at a particular time, all
items which constitute, without duplication, (i) indebtedness for borrowed money
or the deferred purchase price of Property (other than trade payables incurred
in the ordinary course of business), (ii) indebtedness evidenced by notes,
bonds, debentures or similar instruments, (iii) obligations with respect to any
conditional sale agreement or title retention agreement, (iv) indebtedness
arising under acceptance facilities and the amount available to be drawn under
all letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder to the extent such Person shall not
have reimbursed the issuer in respect of the issuer's payment of such drafts,
(v) all liabilities secured by any Lien on any Property owned by such Person
even though such Person has not assumed or otherwise become liable for the
payment thereof (other than Liens permitted under Sections 8.2(i) through (iv)
and carriers', warehousemen's, mechanics',
-14-
repairmen's or other like non-consensual Liens arising in the ordinary course of
business), (vi) obligations for principal payments under leases which have been,
or under GAAP are required to be, capitalized and (vii) all Contingent
Obligations.
"INDEMNIFIED PARTY": shall have the meaning set forth in
Section 11.11(a).
"INDEMNIFIED TAXES": Taxes other than Excluded Taxes.
"INITIAL ACQUISITIONS": as defined in paragraph 4 of Recital
G.
"INITIAL TRANSACTION DOCUMENTS": collectively, (i) the
Contribution Documents, (ii) the Acquisition Documents, (iii) the Bridge Loan
Documents, (iv) the Agreement to Amend, (v) the Master Assignment, (vi) the
Supplemental Indenture, and (vii) each other agreement, instrument or other
document executed or delivered in connection therewith, including all approvals
and consents obtained, and all legal opinions delivered, in connection with the
Initial Transactions (and, in the case of each such legal opinion, evidence
satisfactory to the Administrative Agent that the Credit Parties shall be
permitted to rely thereon).
"INITIAL TRANSACTIONS": collectively, (i) the Contributions,
(ii) the Bridge Loans, (iii) the Initial Acquisitions, and (iv) each other
transaction contemplated by the Initial Transaction Documents.
"INTEREST EXPENSE": at any date of determination, the sum of
all (i) interest (adjusted to give effect to all Interest Rate Protection
Arrangements and fees and expenses paid in connection with same, all as
determined in accordance with GAAP) on Total Funded Debt and (ii) commitment,
letter of credit and similar fees, in each case of the Parent and its
Subsidiaries on a Consolidated basis, determined in accordance with GAAP, for
the period of four consecutive fiscal quarters ending on, or most recently
before, such date.
"INTEREST PAYMENT DATE": (i) as to any ABR Loan, the last day
of each March, June, September and December commencing on the first of such days
to occur after such ABR Loan is made, (ii) as to any Eurodollar Loan in respect
of which the Borrower has selected an Interest Period of one, two or three
months, the last day of such Interest Period and (iii) as to any Eurodollar Loan
in respect of which the Borrower has selected an Interest Period of six months,
the last day of such Interest Period and the corresponding day of the month
which is three months after the date of the commencement of such Interest
Period, or, if such day is not a Business Day or does not exist, on the
immediately preceding Business Day.
"INTEREST PERIOD": the period commencing on any Business Day
selected by the Borrower in accordance with Section 2.3 or 2.8 and ending one,
two, three or six
-15-
months thereafter, as selected by the Borrower in accordance with such Section,
subject to the following:
(a)if any Interest Period would otherwise end on a
day which is not a Business Day, such Interest Period shall be extended to the
immediately succeeding Business Day unless the result of such extension would be
to carry the end of such Interest Period into another calendar month, in which
event such Interest Period shall end on the Business Day immediately preceding
such day; and
(b)if any Interest Period shall begin 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),
such Interest Period shall end on the last Business Day of a calendar month.
"INTEREST RATE PROTECTION ARRANGEMENT": any interest rate
swap, cap or collar arrangement or any other derivative product customarily
offered by banks to their customers in order to manage the exposure of such
customers to interest rate fluctuations.
"INVESTMENTS": as defined in Section 8.5.
"ISSUING BANK": BNY.
"KALC BORROWER DIVIDEND": the dividend by the Borrower to the
Parent in an amount not exceeding $52,000,000, the proceeds of which are used to
prepay in full the Bridge Loans.
"KALC HSR CLEARANCE": the receipt of all approvals and
authorizations of, and the expiration of all waiting periods with respect to,
the transactions contemplated by the KALC Purchase Agreement which may be
required pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended.
"KALC INTERCOMPANY LOAN": the intercompany demand loan from
the Borrower to the Parent in an amount not exceeding $52,000,000, the proceeds
of which are used to prepay in full the Bridge Loans.
"KALC LMA": the Local Programming and Marketing Agreement,
dated as of September 13, 2000, by and between Acquisition Corp. and Emmis
executed in connection with the KALC Purchase Agreement.
"KALC PURCHASE AGREEMENT": the Asset Purchase Agreement, dated
as of September 13, 2000, by and between Acquisition Corp. and Emmis.
-16-
"KALC RC LOANS": the RC Loans in an aggregate amount not
exceeding $52,000,000, the proceeds of which are used to make either (but not
both of) the KALC Borrower Dividend or the KALC Intercompany Loan.
"KALC SALE": the sale of radio station KALC-FM, licensed to
Denver Colorado, by Acquisition Corp. to Emmis.
"KLTX PROCEEDS": as defined in Recital F.
"KLTX SALE": as defined in Recital F.
"KLTX SALE AGREEMENT": as defined in Recital F.
"LEAD ARRANGER": BNY Capital Markets, Inc., as Lead Arranger
and Book Manager.
"LENDING OFFICE": in respect of any Lender, initially, the
office or offices of such Lender designated as such in Schedule 1.1(L) hereto;
thereafter, such other office or offices of such Lender, if any, which shall be
making or maintaining Loans.
"LETTER OF CREDIT": as defined in Section 2.18.
"LETTER OF CREDIT COMMITMENT": the commitment of the Issuing
Bank to issue Letters of Credit in accordance with the terms hereof in an
aggregate outstanding face amount not exceeding $30,000,000 (or, if less, the RC
Commitments) at any time, as the same may be reduced pursuant to Section 2.4.
"LETTER OF CREDIT EXPOSURE": at any time, (a) in respect of
all Lenders, the sum, without duplication, of (i) the maximum aggregate amount
which may be drawn under all unexpired Letters of Credit at such time (whether
the conditions for drawing thereunder have or may be satisfied), (ii) the
aggregate amount, at such time, of all unpaid drafts (which have not been
dishonored) drawn under all Letters of Credit, and (iii) the aggregate unpaid
principal amount of the Reimbursement Obligations at such time, and (b) in
respect of any Lender, an amount equal to such Lender's RC Commitment Percentage
at such time multiplied by the amount determined under clause (a) of this
definition.
"LETTER OF CREDIT FEE": as defined in Section 3.1(c).
"LETTER OF CREDIT PARTICIPATION": with respect to each Lender,
its obligations to the Issuing Bank under Section 2.19.
"LETTER OF CREDIT REQUEST": a request in the form of Exhibit
D.
-17-
"LIEN": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or other security
agreement or security interest of any kind or nature whatsoever, including,
without limitation, any conditional sale or other title retention agreement and
any financing lease having substantially the same economic effect as any of the
foregoing.
"LEVERAGED ACQUISITION": as defined in Section 8.3(d).
"LOANS": the RC Loans.
"LOAN DOCUMENTS": collectively, this Agreement, the Notes, the
Reimbursement Agreements, the Agreement to Amend, the Master Assignment and the
Collateral Documents.
"LOAN PARTY": the Borrower, each Guarantor and each other
party (other than the Administrative Agent, the Issuing Bank and the Lenders)
that is a signatory to a Loan Document.
"MANAGEMENT AGREEMENT": the Management Services Agreement,
dated as of the Second Restatement Date, by and among the Parent and its
Subsidiaries.
"MANAGEMENT FEES": all fees and expenses paid to Parent by any
of its Subsidiaries, or to any of their respective Affiliates, or to any
employees thereof, for general corporate, administrative or management services
received.
"MARGIN STOCK": any "margin stock", as said term is defined in
Regulation U of the Board of Governors of the Federal Reserve System.
"MASTER ASSIGNMENT": the Master Assignment and Assumption
Agreement, dated as of August 24, 2000, among the Parent, the Lenders (including
lenders party to the First Restated Agreement which on the Second Restatement
Date ceased to be Lenders) and the Administrative Agent.
"MATERIAL ADVERSE CHANGE": a material adverse change in (i)
the operations, business, prospects, Property or condition (financial or
otherwise) of (a) the Borrower and its Subsidiaries on a Consolidated basis, or
(b) the Parent and its Subsidiaries on a Consolidated basis, (ii) the ability of
the Borrower or any other Loan Party to perform its obligations under the Loan
Documents to which it is a party or (iii) the ability of the Credit Parties to
enforce any of the Loan Documents.
"MATERIAL ADVERSE EFFECT": a material adverse effect on (i)
the operations, business, prospects, Property or condition (financial or
otherwise) of (a) the Borrower and its Subsidiaries on a Consolidated basis, or
(b) the Parent and its Subsidiaries on a Consolidated basis, (ii) the ability of
the Borrower or any other Loan Party to perform its
-18-
obligations under the Loan Documents to which it is a party or (iii) the ability
of the Credit Parties to enforce any of the Loan Documents.
"MATURITY DATE": June 30, 2007.
"MOODY'S": Xxxxx'x Investors Service, Inc.
"MORTGAGE" means a mortgage, deed of trust, assignment of
leases and rents, leasehold mortgage or other security document granting a Lien
on any Mortgaged Property to secure the obligations under the Loan Documents.
Each Mortgage shall be satisfactory in form and substance to the Administrative
Agent.
"MORTGAGED PROPERTY" means, initially, each parcel of real
property and the improvements thereto owned by the Borrower or any Subsidiary
Guarantor and identified on Schedule 4.11(c) as having a value in excess of
$2,000,000 and includes each other parcel of real property and improvements
thereto with respect to which a Mortgage is granted pursuant to Section 7.12.
"MULTIEMPLOYER PLAN": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NET EQUITY PROCEEDS": as defined in Section 2.4(b)(v).
"NET SALE PROCEEDS": as defined in Section 2.4(b)(iv).
"NOTES": the RC Notes.
"ONEPLACE": OnePlace, Ltd., prior to the Borrower
Contribution, a wholly-owned Subsidiary of the Parent and on and after the
Borrower Contribution, a wholly-owned Subsidiary of the Borrower.
"OPERATING CASH FLOW": at any time, with respect to any
Person, for any period: (i) revenues (exclusive of reciprocal and barter
revenues) of such Person, determined in accordance with GAAP, for such period,
LESS (ii) expenses (exclusive of depreciation, amortization, interest, income
tax, employee compensation payable solely in stock of the Borrower, and
reciprocal and barter expenses, in each case to the extent included therein),
PLUS (iii) non-recurring expense items and other non-cash expense items of such
Person for such period, in each case mutually agreed upon between the Borrower
and the Administrative Agent, to the extent deducted in accordance with clause
(ii) above, LESS (iv) non-recurring or non-cash revenues or operating or
non-operating gains, LESS (v) the amount of any cash payments related to
non-cash expense items added pursuant to clause (iii) above, LESS (vi) Excluded
Cash Flow. Operating Cash Flow shall be adjusted on a consistent basis to
reflect the acquisition, sale, exchange and disposition of Property during such
period as if such acquisition, sale, exchange or disposition of
-19-
Property had occurred at the beginning of such period, PROVIDED that pro-forma
adjustments related to certain station operations of such stations being
acquired (mutually agreed upon by the Borrower and the Administrative Agent)
shall be included in the calculation of Operating Cash Flow. Operating Cash Flow
shall exclude all gains and losses from the sale or disposition of Property and
all extraordinary gains and losses.
"OTHER MEDIA CASH FLOW": at any time, for any period,
Operating Cash Flow for such period allocable to the Other Media Subsidiaries at
such time.
"OTHER MEDIA SUBSIDIARIES": CCM and OnePlace.
"ORIGINAL CREDIT AGREEMENT": as defined in Recital A.
"ORIGINAL EFFECTIVE DATE": September 25, 1997.
"OTHER TAXES": any and all current or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, the Loan Documents.
"PARENT": as defined in Recital B.
"PARENT GUARANTY": the First Amended and Restated Parent
Guaranty, dated as of the date hereof, made by the Parent to the Administrative
Agent, substantially in the form attached hereto as Exhibit M.
"PARENT SECURITY AGREEMENT": the Parent Security Agreement,
dated as of August 24, 2000, made by the Parent to the Administrative Agent,
substantially in the form attached hereto as Exhibit N.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental Authority
succeeding to the functions thereof.
"PERMITTED HOLDERS": as of any date of determination (i) any
of Xxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxxx III; (ii) family
members or the relatives of the Persons described in clause (i); (iii) any
trusts, family limited partnerships or other similar entities created for the
benefit of the Persons described in clauses (i), (ii) or (iv) or any such entity
for the benefit of such entity; or (iv) in the event of the incompetence or
death of any of the Persons described in clauses (i) and (ii), such Person's
estate, executor, administrator, committee or other personal representative or
beneficiaries, in each case who at any particular date shall beneficially own or
have the right to acquire, directly or indirectly, Voting Stock of the Parent.
-20-
"PERMITTED LIENS": Liens permitted to exist pursuant to
Section 8.2.
"PERSON": an individual, a partnership, a corporation, a
business trust, a joint stock company, a trust, an unincorporated association, a
joint venture, a limited liability company, a Governmental Authority or any
other entity of whatever nature.
"PLAN": any pension plan which is covered by Title IV of ERISA
and which is maintained by or to which contributions are made by the Borrower or
a Commonly Controlled Entity or in respect of which the Borrower or a Commonly
Controlled Entity has or may have any liability.
"PRO-FORMA DEBT SERVICE": the sum of Pro-Forma Interest
Expense and the scheduled payments of principal (including scheduled mandatory
reductions of revolving credit and similar commitments) in respect of Total
Funded Debt required to be made during the four fiscal quarters of the Parent
immediately succeeding any determination thereof. For purposes of calculating
Pro-Forma Debt Service, the principal amount outstanding under any revolving or
line of credit facility on the date of any calculation of Pro-Forma Debt Service
shall be assumed to be outstanding during the entire applicable four fiscal
quarter period, subject to any mandatory scheduled payments of principal
required to be made during such period.
"PRO-FORMA INTEREST EXPENSE": the sum of (i) all interest
(adjusted to give effect to all Interest Rate Protection Arrangements and fees
and expenses paid in connection with the same, all as determined in accordance
with GAAP) in respect of Total Funded Debt and (ii) commitment, letter of credit
and similar fees, in each case of the Parent and its Subsidiaries on a
Consolidated basis, determined in accordance with GAAP, for the four fiscal
quarters of the Parent immediately succeeding any determination thereof. Where
any item of interest varies or depends upon a variable rate of interest (or
other rate of interest which is not fixed for such entire four fiscal quarters),
such rate, for purposes of calculating Pro-Forma Interest Expense, shall be
assumed to equal the interest rate in effect on the date of such calculation.
Also, for purposes of calculating Pro-Forma Interest Expense, the principal
amount outstanding under any revolving or line of credit facility on the date of
any calculation of Pro-Forma Debt Service shall be assumed to be outstanding
during the entire applicable four fiscal quarter period, subject to any
mandatory scheduled payments of principal required to be made during such
period.
"PROPERTY": all types of real, personal, tangible, intangible
or mixed property.
"RC COMMITMENT": as to any Lender, the amount set forth next
to the name of such Lender on Exhibit A under the heading "RC Commitment", as
such RC Commitment may be reduced from time to time pursuant to Section 2.4.
-21-
"RC COMMITMENTS": the RC Commitments of all Lenders.
"RC COMMITMENT PERCENTAGE": as to any Lender, the percentage
set forth opposite the name of such Lender on Exhibit A under the heading "RC
Commitment Percentage".
"RC COMMITMENT PERIOD": the period from the Second Restatement
Date until the RC Commitment Termination Date.
"RC COMMITMENT TERMINATION DATE": the earlier of the Business
Day immediately preceding the Maturity Date or such other date upon which the RC
Commitments shall have been terminated in accordance with Section 2.4 or 9.1.
"RC LOAN" and "RC LOANS": as defined in Section 2.1.
"RC NOTE" and "RC NOTES": as defined in Section 2.2.
"RC SUPPLEMENT": a supplement substantially in the form of
Exhibit K.
"REIMBURSEMENT AGREEMENT": as defined in Section 2.18(b).
"REIMBURSEMENT OBLIGATIONS": all obligations and liabilities
of the Borrower due and to become due (a) under the Reimbursement Agreements and
(b) hereunder in respect of Letters of Credit.
"REINVESTED PROCEEDS": net cash proceeds from the sale,
exchange or other disposition of Property, after giving effect to the payment of
cash taxes payable in connection with the same, which cash proceeds are used to
acquire one or more radio Broadcasting Stations through a merger or acquisition
in accordance with Section 8.3 during the Reinvestment Period.
"REINVESTMENT PERIOD": the period which is one year from the
date that proceeds from the sale, exchange or other disposition of Property are
received by the Parent or any Subsidiary.
"REMAINING INTEREST PERIOD": (i) in the event that the
Borrower shall fail for any reason to borrow or convert Loans after it shall
have notified the Administrative Agent of its intent to do so in which it shall
have requested a Eurodollar Loan pursuant to Section 2.3 or 2.8, a period equal
to the Interest Period that the Borrower elected in respect of such Eurodollar
Loan; (ii) in the event that a Eurodollar Loan shall terminate for any reason
prior to the last day of the Interest Period applicable thereto, a period equal
to the period from and including the date of such termination to but excluding
the last day of such Interest Period; and (iii) in the event that the Borrower
shall prepay or repay all or any part of the principal amount of a Eurodollar
Loan prior to the last day of the Interest
-22-
Period applicable thereto, a period equal to the period from and including the
date of such prepayment or repayment to but excluding the last day of such
Interest Period.
"REPORTABLE EVENT": any event described in Section 4043(b) of
ERISA, other than an event (excluding an event described in Section 4043(b)(1)
relating to tax disqualification) with respect to which the 30-day notice
requirement has been waived.
"REQUIRED LENDERS": at any date of determination, Lenders
having Credit Exposures equal to or greater than 51% of the Total Credit
Exposure.
"RESTRICTED PAYMENT": as to any Person, (i) the payment or
declaration by such Person of any dividend on any class of Stock or other equity
interest (other than dividends payable solely in common Stock of the such
Person), or warrants, rights or options to acquire common Stock of such Person
or the making of any other distribution on account of any class of its Stock or
other equity interest, (ii) the retirement, redemption, purchase or acquisition,
directly or indirectly, of (a) any shares of the Stock of such Person and (b)
any security convertible into, or any option, warrant or other right to acquire,
shares of the Stock of such Person, or (iii) the payment of any Management Fees
under the Management Agreement or any payment under the Tax Sharing Agreement.
"SALEM CALIFORNIA": as defined in Recital A.
"SALEM MEDIA": as defined in Recital F.
"SECOND RESTATED AGREEMENT": as defined in Recital D.
"SECOND RESTATEMENT DATE": as defined in Recital D.
"S & P": Standard and Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc.
"SINGLE EMPLOYER PLAN": any Plan which is not a Multiemployer
Plan.
"SPECIAL COUNSEL": Xxxxx Xxxx LLP, special counsel to the
Administrative Agent.
"STOCK": any and all shares, interests, participations,
options, warrants or other equivalents (however designated) of corporate stock,
including, without limitation, phantom stock.
"SUBORDINATED INDENTURE": the Indenture, dated as of September
25, 1997, between the Parent, as issuer, and assumed by the Borrower pursuant to
the Supplemental Indenture, and The Bank of New York, as trustee.
-23-
"SUBORDINATED INDENTURE DEBT TO OPERATING CASH FLOW RATIO":
the Debt to Operating Cash Flow Ratio under and as defined in the Subordinated
Indenture (as in effect on the Second Restatement Date and without giving effect
to any amendment, supplement, waiver or other modification thereof which has not
been approved in writing by the Administrative Agent with the consent of
Required Lenders), which definition (together with any related definitions) is
hereby incorporated herein by this reference as if fully set forth herein.
"SUBORDINATED INDENTURE NOTES": the 9.5% Senior Subordinated
Notes, due 2007, issued in the original aggregate principal amount of
$150,000,000 pursuant to the Subordinated Indenture.
"SUBORDINATED INDENTURE SUBSIDIARY GUARANTY": the subordinated
guaranty or guaranties executed and delivered by one or more of the Subsidiaries
of the Parent in connection with the Subordinated Indenture.
"SUBSIDIARY": with respect to any Person (the "PARENT") at any
date, any corporation, association, partnership, joint venture or other business
entity of which the parent, directly or indirectly, either (i) in respect of a
corporation, owns or controls more than 50% of the outstanding Stock having
ordinary voting power to elect a majority of the board of directors or similar
managing body, irrespective of whether or not a class or classes shall or might
have voting power by reason of the happening of any contingency, or (ii) in
respect of an association, partnership, joint venture or other business entity,
is entitled to share in more than 50% of the profits and losses, however
determined. Unless the context otherwise requires, references in this Agreement
to a "Subsidiary" or to "Subsidiaries" shall be deemed to refer to a Subsidiary
or Subsidiaries of the Borrower.
"SUBSIDIARY GUARANTOR": each Subsidiary of the Parent,
provided that the Borrower shall not be a Subsidiary Guarantor.
"SUBSIDIARY GUARANTY": the Third Amended and Restated
Subsidiary Guaranty and Security Agreement, dated as of August 24, 2000, made by
the Subsidiaries of the Borrower to the Administrative Agent, substantially in
the form attached hereto as Exhibit I.
"SUPPLEMENTAL INDENTURE": the Supplemental Indenture No. 2,
dated as of August 24, 2000, among the Parent, the Borrower, the guarantors
party thereto and The Bank of New York, as Trustee.
"TAX SHARING AGREEMENT": the Tax Sharing Agreement, dated as
of the Second Restatement Date, by and among the Parent and its Subsidiaries.
-24-
"TAXES": any and all current or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"THIRD RESTATEMENT DATE": as defined in Recital J.
"THIRD RESTATEMENT TRANSACTION DOCUMENTS": this Agreement, the
Parent Guaranty and each other document executed and delivered in connection
therewith.
"TOTAL ADJUSTED FUNDED DEBT": Total Funded Debt LESS the
lesser of (i) 50% of the lesser of, with respect to each Excluded Property (x)
the purchase price of such Excluded Property and (y) the independent appraisal
value (if required under clause (i) of the second paragraph of Section 8.3(d))
of such Excluded Property and (ii) $30,000,000.
"TOTAL CREDIT EXPOSURE": at any time, the sum of the Credit
Exposures of all Lenders at such time.
"TOTAL FUNDED DEBT": the aggregate Indebtedness of the Parent
and its Subsidiaries on a Consolidated basis, determined in accordance with
GAAP.
"TOTAL FACILITY USAGE": as of any date, a fraction (expressed
by a decimal) the numerator of which is the aggregate outstanding principal
amount of RC Loans plus the Letter of Credit Exposure of all Lenders, and the
denominator of which is the aggregate amount of RC Commitments.
"TOTAL LEVERAGE RATIO": the ratio of (i) Total Adjusted Funded
Debt LESS cash and cash equivalents of the Parent and its Subsidiaries on a
Consolidated basis in excess of $5,000,000 to (ii) Consolidated Annual Adjusted
Operating Cash Flow.
"TRANSACTION DOCUMENTS": collectively, the Loan Documents and
the Initial Transaction Documents.
"TRANSACTIONS": collectively, the transactions contemplated by
the Transaction Documents.
"UPSTREAM TRANSFERS": as defined in Section 8.13.
"VOTING STOCK": Stock of the class or classes pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of a corporation (irrespective of whether or not at the time Stock
of any other class or classes shall have or might have voting power by reason or
the happening of any contingency).
-25-
1.2 PRINCIPLES OF CONSTRUCTION.
(a) All terms defined in this Agreement shall have the
meanings given such terms herein when used in the Loan Documents or any
certificate or other document made or delivered pursuant hereto or thereto,
unless otherwise defined therein.
(a) Unless otherwise specified herein, as used in the Loan
Documents and in any certificate, opinion or other document made or delivered
pursuant hereto or thereto, all accounting terms used herein shall be
interpreted, and all accounting determinations hereunder shall be made, in
accordance with GAAP.
(b) The words "hereof", "herein", "hereto" and "hereunder" and
similar words when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
paragraph, schedule and exhibit references contained herein shall refer to
Sections or paragraphs hereof or schedules or exhibits hereto unless otherwise
expressly provided herein.
(c) Unless the context requires otherwise, (i) any definition
of or reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
and (ii) any definition of or reference to any law shall be construed as
referring to such law as from time to time amended and any successor thereto and
the rules and regulations promulgated from time to time thereunder.
(d) The word "or" shall not be exclusive; "may not" is
prohibitive and not permissive; and the singular includes the plural.
(e) Unless otherwise specifically set forth herein, all
references to time shall refer to New York City time.
2. AMOUNT AND TERMS OF LOANS.
2.1 LOANS.
Subject to the terms and conditions hereof, each Lender having
an RC Commitment agrees to make loans (each an "RC LOAN" and, collectively with
the other RC Loans of such Lender and/or with the RC Loans of each other Lender,
the "RC LOANS") to the Borrower from time to time during the RC Commitment
Period. At all times during the RC Commitment Period, the Borrower may borrow,
prepay and reborrow RC Loans in accordance with the provisions hereof, PROVIDED
that the aggregate unpaid principal amount of all RC Loans and the Letter of
Credit Exposure of all Lenders at any one time shall not exceed the RC
Commitments then in effect, and PROVIDED
-26-
further that the aggregate unpaid principal amount of each Lender's RC Loans and
its Letter of Credit Exposure at any one time shall not exceed such Lender's RC
Commitment. The principal amount of each Lender's RC Loan made on a Borrowing
Date shall be an amount equal to its RC Commitment Percentage of all RC Loans
made on such date. Subject to the provisions of Sections 2.3, 2.8 and 2.15, RC
Loans may be (i) ABR Loans, (ii) Eurodollar Loans or (iii) any combination
thereof.
2.2 NOTES.
The RC Loans of each Lender shall be evidenced by a promissory
note in the form of Exhibit B (each as indorsed or modified from time to time,
including all replacements thereof and substitutions therefor, an "RC NOTE" and,
collectively with the RC Note of each other Lender, the "RC NOTES"), payable to
the order of such Lender, in the maximum stated principal amount equal to such
Lender's RC Commitment. Each RC Note shall (i) be dated the Second Restatement
Date, (ii) be stated to mature on the Maturity Date and be payable in the
amounts and at the times required by Section 2.5 and (iii) bear interest on the
unpaid principal amount thereof at the applicable interest rate or rates per
annum determined as provided in Section 2.6, payable as specified in Section
2.6. Each Lender is hereby irrevocably authorized by the Borrower to enter on
the schedule attached to its RC Note and/or in its internal books and records
the amount of each RC Loan made by it thereunder, each payment thereon, and the
other information provided for on such schedule, and such schedule and books and
records shall be presumptively correct absent manifest error as to the amount of
such Lender's RC Loans and as to the amount of principal and interest paid by
the Borrower in respect of such RC Loans and as to the other information set
forth on such schedule or books and records relating to the RC Loans, PROVIDED,
however, that the failure to make any such entry (or any error therein) with
respect to any RC Loan shall not limit or otherwise affect the obligations of
the Borrower hereunder or under such RC Note. Each Lender may attach one or more
continuations to such schedule as and when required. In all events, the
principal amount owing by the Borrower to each Lender in respect of such
Lender's RC Note shall be the aggregate amount of all RC Loans made by such
Lender thereunder less all payments of principal thereon made by the Borrower.
2.3 PROCEDURE FOR BORROWING LOANS.
(a) The Borrower may borrow RC Loans on any Business Day
occurring during the RC Commitment Period, PROVIDED that, with respect to any
requested borrowing, the Borrower shall notify the Administrative Agent (by
telephone or telecopy) no later than 1:00 P.M., three Business Days prior to the
requested Borrowing Date, in the case of Eurodollar Loans, and no later than
1:00 P.M., one Business Day prior to the requested Borrowing Date, in the case
of ABR Loans, specifying (i) the aggregate amounts to be borrowed under the RC
Commitments, (ii) the requested Borrowing Date, (iii) whether the borrowing is
to be a Eurodollar Loan, an ABR Loan, or
-27-
a combination thereof, and (iv) if the borrowing is to be a Eurodollar Loan, the
length of the initial Interest Period for such Eurodollar Loan. Each such notice
shall be irrevocable and confirmed immediately by delivery to the Administrative
Agent of a Borrowing Request. Each borrowing of RC Loans, consisting of ABR
Loans shall be in an aggregate principal amount equal to $1,000,000 or such
amount plus an integral multiple of $100,000 in excess thereof or, if less, the
unused amount of the RC Commitments. Each borrowing of RC Loans, as the case may
be, consisting of Eurodollar Loans shall be in a minimum aggregate principal
amount equal to $2,000,000 or an integral multiple of $250,000 in excess
thereof. Upon receipt of each notice of borrowing from the Borrower, the
Administrative Agent shall promptly notify each Lender (by telephone or
otherwise, such notice to be confirmed by telecopy or other writing) of the
requested borrowing. Subject to its receipt of the notice referred to in the
preceding sentence and to the other terms and conditions of this Agreement, each
Lender will make the amount of its applicable RC Commitment Percentage, of each
borrowing available to the Administrative Agent for the account of the Borrower
at the office of the Administrative Agent set forth in Section 11.2 not later
than 12:00 Noon, on the Borrowing Date requested by the Borrower, in funds
immediately available to the Administrative Agent at such office. The amounts so
made available to the Administrative Agent on a Borrowing Date will then,
subject to the satisfaction of the terms and conditions of this Agreement as
determined by the Administrative Agent, be made available on such date to the
Borrower by the Administrative Agent, in immediately available funds, at the
office of the Administrative Agent specified in Section 11.2 by crediting the
account of the Borrower on the books of such office with the aggregate of said
amounts received by the Administrative Agent.
(b) Unless the Administrative Agent shall have received prior
notice from a Lender (by telephone or otherwise, such notice to be confirmed by
telecopy or other writing) that such Lender will not make available to the
Administrative Agent such Lender's pro rata share of the Loans requested by the
Borrower, the Administrative Agent may assume that such Lender has made such
share available to the Administrative Agent on such Borrowing Date in accordance
with this Section 2.3 PROVIDED that such Lender received notice of the proposed
borrowing from the Administrative Agent, and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such Borrowing
Date a corresponding amount. If and to the extent such Lender shall not have so
made such pro rata share available to the Administrative Agent, such Lender and
the Borrower severally agree to pay to the Administrative Agent forthwith on
demand such corresponding amount (to the extent not previously paid by the
other), together with interest thereon for each day from the date such amount is
made available to the Borrower until the date such amount is paid to the
Administrative Agent, at a rate per annum equal to, in the case of the Borrower,
the applicable interest rate set forth in Section 2.6, and, in the case of such
Lender, the Federal Funds Rate in effect on such date (as determined by the
Administrative Agent). Such payment by the Borrower,
-28-
however, shall be without prejudice to its rights against such Lender. If such
Lender shall pay to the Administrative Agent such corresponding amount, such
amount so paid shall constitute such Lender's Loan as part of such Loans for
purposes of this Agreement, which Loan shall be deemed to have been made by such
Lender on the Borrowing Date applicable to such Loans.
2.4 REDUCTION AND INCREASE OF RC COMMITMENTS.
(a) VOLUNTARY REDUCTIONS. The Borrower shall have the right,
upon at least three Business Days' prior irrevocable written notice to the
Administrative Agent, to reduce permanently the RC Commitments or the Letter of
Credit Commitment, in whole at any time, or in part from time to time, without
premium or penalty, to an amount not less than (i) in the case of the RC
Commitments, the sum of the aggregate outstanding principal balance of the RC
Loans, after giving effect to any contemporaneous prepayment thereof, and the
Letter of Credit Exposure of all Lenders, PROVIDED that each partial reduction
of such RC Commitments shall be in a minimum amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof or, if less, the amount of the RC
Commitments then in effect, and (ii) in the case of the Letter of Credit
Commitment, the Letter of Credit Exposure of all Lenders, PROVIDED that each
partial reduction of the Letter of Credit Commitment shall be in a minimum
amount of $1,000,000 or an integral multiple of $1,000,000 in excess thereof or,
if less, the Letter of Credit Commitment then in effect. Unless previously
terminated, the RC Commitments shall terminate on the RC Commitment Termination
Date.
(b) MANDATORY REDUCTIONS OF RC COMMITMENTS.
(i) MANDATORY SCHEDULED REDUCTIONS OF RC COMMITMENTS.
On each date set forth below, the RC Commitments shall be reduced by the amount
equal to the percentage set forth below next to such date multiplied by the
aggregate RC Commitments existing on March 31, 2002 (prior to giving effect to
such initial reduction):
-29-
DATES PERCENTAGE DATES PERCENTAGE
---------------------------- ------------------------- -------------------------- -------------------------
March 31, 2002 2.50% December 31, 2004 3.75%
---------------------------- ------------------------- -------------------------- -------------------------
June 30, 2002 2.50% March 31, 2005 3.75%
---------------------------- ------------------------- -------------------------- -------------------------
September 30, 2002 2.50% June 30, 2005 3.75%
---------------------------- ------------------------- -------------------------- -------------------------
December 31, 2002 2.50% September 30, 2005 3.75%
---------------------------- ------------------------- -------------------------- -------------------------
March 31, 2003 2.50% December 31, 2005 3.75%
---------------------------- ------------------------- -------------------------- -------------------------
June 30, 2003 2.50% March 31, 2006 5.00%
---------------------------- ------------------------- -------------------------- -------------------------
September 30, 2003 2.50% June 30, 2006 5.00%
---------------------------- ------------------------- -------------------------- -------------------------
December 31, 2003 2.50% September 30, 2006 5.00%
---------------------------- ------------------------- -------------------------- -------------------------
March 31, 2004 3.75% December 31, 2006 5.00%
---------------------------- ------------------------- -------------------------- -------------------------
June 30, 2004 3.75% March 31, 2007 15.00%
---------------------------- ------------------------- -------------------------- -------------------------
September 30, 2004 3.75% June 30, 2007 15.00%
============================ ========================= ========================== =========================
(ii) MANDATORY REDUCTIONS OF RC COMMITMENTS RELATING
TO EXCESS CASH FLOW. Commencing with the fiscal year ending December 31, 2001,
the RC Commitments shall be reduced by an amount equal to 50% of Excess Cash
Flow with respect to such fiscal year, PROVIDED that no such reduction in
respect of such fiscal year shall be required if (x) the Total Leverage Ratio as
at the end of such fiscal year is less than 5.00:1.00 and (y) no Default or
Event of Default shall exist at the end of such fiscal year or on the date the
RC Commitments would be required to be reduced. Such reduction (and any
prepayments required as a result thereof) shall be made with respect to a fiscal
year on March 31st of the succeeding fiscal year.
(iii) MANDATORY REDUCTIONS OF RC COMMITMENTS RELATING
TO INSURANCE AND CONDEMNATION. The RC Commitments shall be reduced in the
amounts and at the times required by Sections 7.5(b) and 7.5(c).
(iv) MANDATORY REDUCTIONS OF RC COMMITMENTS RELATING
TO PROCEEDS OF PROPERTY SALES. The RC Commitments shall be reduced by an amount
equal to the difference between (a) 100% of the proceeds of the sale, exchange
or other disposition of Property by the Parent or any of its Subsidiaries to the
extent not sold, exchanged or disposed of in the ordinary course of business
(net of (1) sales and other commissions and legal and other expenses incurred,
(2) cash taxes payable, (3) Indebtedness permitted under Sections 8.1(ii) and
(iv) which is secured by the Property sold, exchanged or disposed of and
required to be repaid and is repaid, in each case in connection therewith, and
(4) solely in connection with the KALC Sale, the aggregate principal amount of
the KALC RC Loans on the date such Loans were made) (the amount referred to in
this clause (a) being referred to as the "NET SALE PROCEEDS"), and (b), the
amount of Reinvested Proceeds in connection with such sale, exchange or other
disposition of Property which has been used prior to the date such reduction is
required to be made to acquire one or more additional radio Broadcasting
Stations through a merger or acquisition in accordance with Section 8.3. Such
reduction shall be made on the
-30-
earlier of (x) the last day of the Reinvestment Period with respect to such
sale, exchange or other disposition, or (y) the occurrence of a Default or Event
of Default.
(v) MANDATORY REDUCTIONS OF RC COMMITMENTS RELATING
TO EQUITY ISSUANCES. The RC Commitments shall be reduced immediately upon
receipt by the Borrower of the aggregate proceeds of any Equity Issuance (net of
sales and other commissions and legal and other related expenses incurred in
connection with such Equity Issuance) (the "NET EQUITY PROCEEDS") by an amount
equal to:
(a) if no Default or Event of Default shall
then exist and the Total Leverage Ratio (calculated without giving effect to the
phrase "less cash and cash equivalents of the Parent and its Subsidiaries on a
Consolidated basis in excess of $5,000,000" contained in clause (i) of the
definition "Total Leverage Ratio") is greater than 5.00:1.00, the lesser of (x)
50% of the Net Equity Proceeds and (y) the amount of the Net Equity Proceeds
which, when applied to the prepayment of the Loans, will result in the Total
Leverage Ratio (calculated without giving effect to the phrase "less cash and
cash equivalents of the Parent and its Subsidiaries on a Consolidated basis in
excess of $5,000,000" contained in clause (i) of the definition "Total Leverage
Ratio") not exceeding 5.00:1.00; and
(b) if a Default or Event of Default shall
then exist, 100% of the Net Equity Proceeds.
(c) APPLICATION OF REDUCTIONS.
(i) Each reduction of the RC Commitments made
pursuant to this Section 2.4 shall effect a corresponding reduction of each
Lender's applicable RC Commitment by an amount equal to such Lender's applicable
RC Commitment Percentage of such reduction.
(ii) Reductions of the RC Commitments made pursuant
to Section 2.4(a) or 2.4(b)(ii), (iii), (iv) and (v) shall be applied in inverse
order among the remaining RC Commitment reductions set forth in Section
2.4(b)(i).
(iii) Simultaneously with each reduction of the RC
Commitments under this Section 2.4, the Borrower shall pay the applicable
Commitment Fee accrued on the amount by which such RC Commitments have been
reduced.
(iv) If for any reason the Letter of Credit Exposure
of all Lenders shall exceed the RC Commitments, the Borrower shall immediately
deposit in a cash collateral account maintained with and under the sole dominion
and control of the Administrative Agent an amount equal to such excess.
-31-
(d) INCREASE OF RC COMMITMENTS. The Borrower may at any time
after the first Borrowing Date to occur after the Second Restatement Date but
prior to January 31, 2002, at its sole cost and expense, request any one or more
of the Lenders to increase (such decision to increase the RC Commitment of a
Lender to be within the sole and absolute discretion of such Lender) its RC
Commitment, or any other Person reasonably satisfactory to the Administrative
Agent and the Issuing Bank to provide a new RC Commitment, by submitting an RC
Supplement duly executed by the Borrower and each such Lender or other Person,
as the case may be. If such RC Supplement is in all respects reasonably
satisfactory to the Administrative Agent, the Administrative Agent shall execute
such RC Supplement and deliver a copy thereof to the Borrower and each such
Lender or other Person, as the case may be. Upon execution and delivery of such
RC Supplement, (i) in the case of each such Lender, such Lender's RC Commitment
shall be increased to the amount set forth in such RC Supplement, (ii) in the
case of each such other Person, such other Person shall become a party hereto
and shall for all purposes of the Loan Documents be deemed a "Lender" having an
RC Commitment as set forth in such RC Supplement and (iii) in each case, the RC
Commitment of such Lender or such other Person, as the case may be, shall be as
set forth in the applicable RC Supplement; PROVIDED, however, that:
(i) immediately after giving effect thereto, the
aggregate RC Commitments shall not exceed $275,000,000;
(ii) such increase shall be in an amount not less
than $5,000,000 or such amount plus an integral multiple of $1,000,000;
(iii) the Borrower shall have delivered to the
Administrative Agent projections, reasonably satisfactory to the Administrative
Agent, demonstrating pro-forma compliance (after giving effect to such increase)
with the terms of the Loan Documents, including but not limited to Sections 6.1,
6.2, 6.3, 6.4 and 6.5, through the Maturity Date;
(iv) if RC Loans would be outstanding immediately
after giving effect to such increase, then simultaneously with such increase (A)
each such Lender, each such other Person and each other Lender shall be deemed
to have entered into an assignment and acceptance agreement, in form and
substance substantially similar to Exhibit J, pursuant to which each such other
Lender shall have assigned to each such Lender and each such other Person a
portion of its RC Loans necessary to reflect proportionately the aggregate RC
Commitments as adjusted in accordance with this Section 2.4(d), and (B) in
connection with such assignment, each such Lender and each such other Person
shall pay to the Administrative Agent, for the account of the other Lenders,
such amount as shall be necessary to appropriately reflect the assignment to it
of RC Loans, and in connection with such assignment each such other Lender may
treat the
-32-
assignment of Eurodollar Loans as a prepayment of such Eurodollar Loans for
purposes of Section 2.9;
(v) each such other Person shall have delivered to
the Administrative Agent and the Borrower all forms, if any, that are required
to be delivered by such other Person pursuant to Section 2.13; and
(vi) the Administrative Agent shall have received
such certificates, legal opinions and other items as it shall reasonably request
in connection with such increase.
2.5 PREPAYMENTS OF THE LOANS.
(a) VOLUNTARY PREPAYMENTS. The Borrower may, at its option,
prepay the RC Loans, in whole or in part, without premium or penalty, at any
time and from time to time, by notifying the Administrative Agent at least three
Business Days' prior to the proposed prepayment date with respect to Eurodollar
Loans, and at least one Business Day prior to the proposed prepayment date with
respect to ABR Loans. Each such notice shall be in writing, shall specify the
Loans to be prepaid (whether Eurodollar Loans or ABR Loans), the amount to be
prepaid, and the date of prepayment and, if the prepayment is of $10,000,000 or
more, the Total Leverage Ratio after giving effect to such prepayment. Upon
receipt by the Administrative Agent of any such notice, the Administrative Agent
shall promptly notify each Lender thereof. If any such notice of the Borrower is
given pursuant to this Section 2.5, such notice shall be irrevocable and the
payment amount specified in such notice shall be due and payable on the date
specified, together with accrued interest to the date of such payment on the
amount prepaid. Partial prepayments of ABR Loans shall be in an aggregate
principal amount of $1,000,000 or an integral multiple of $100,000 in excess
thereof and partial prepayments of Eurodollar Loans shall be in an aggregate
principal amount of $2,000,000 or an integral multiple of $250,000 in excess
thereof, or, if less, the outstanding principal balance of such Loans.
(b) MANDATORY PREPAYMENTS OF LOANS. The Borrower shall
immediately prepay the RC Loans (i) at any time at which the sum of the
aggregate outstanding principal amount of the outstanding RC Loans and the
Letter of Credit Exposure of all Lenders exceeds the aggregate RC Commitments of
all Lenders in an amount equal to the amount of such excess and (ii) in the
amounts and at the times required by Section 7.5. Upon receipt of any Net Sale
Proceeds (to the extent received in cash), including the receipt by the Parent
or any of its Subsidiaries of Net Sale Proceeds resulting from the KALC Sale,
the Borrower shall immediately prepay the KALC RC Loans in an equal amount until
the KALC RC Loans are repaid in full. Upon receipt of the Liquidated Damages
Amount (as defined in the KALC Purchase Agreement) by the
-33-
Parent or any of its Subsidiaries, the Borrower shall immediately prepay the
KALC RC Loans in an equal amount.
(c) IN GENERAL. If any prepayment is made under this Section
2.5 with respect to any Eurodollar Loans, in whole or in part, prior to the last
day of the applicable Interest Period, the Borrower agrees to indemnify the
Lenders in accordance with Section 2.9. After giving effect to any partial
prepayment with respect to Eurodollar Loans which were made (whether as the
result of a borrowing or a conversion) on the same date and which had the same
Interest Period, the outstanding principal amount of such Eurodollar Loans shall
not be less than $2,000,000 or an integral multiple of $250,000 in excess
thereof. The Borrower may designate which Loans (ABR Loans or Eurodollar Loans)
are to be prepaid in connection with any prepayment made under this Section 2.5.
2.6 INTEREST RATE AND PAYMENT DATES; HIGHEST LAWFUL RATE.
(a) PRIOR TO MATURITY. Prior to maturity, the outstanding
principal amount of the Loans shall bear interest on the unpaid principal amount
thereof at the Alternate Base Rate or the Eurodollar Rate, as applicable, plus
the Applicable Margin.
(b) DEFAULT RATE. After maturity and at all times during the
continuance of any Event of Default under Section 9.1(a), (b), (h) or (i) or
during the continuance for more than 30 days of any other Event of Default, the
outstanding principal amount of all Loans hereunder shall bear interest,
notwithstanding the rate which would otherwise be applicable pursuant to Section
2.6(a) above, at a rate of interest per annum equal to 2% above such otherwise
applicable rate.
(c) LATE PAYMENT RATE. Any payment of interest on any Note or
any Reimbursement Obligation and any payment of any Commitment Fee, Letter of
Credit Fee or other fee or payment payable by the Borrower under any Loan
Document and not paid on the date when due and payable shall bear interest, to
the extent permitted by law, at the Alternate Base Rate plus the Applicable
Margin for ABR Loans plus 2% per annum from the due date thereof until the date
such payment is made.
(d) GENERAL. Interest on ABR Loans, to the extent based on the
BNY Rate, shall be calculated on the basis of a 365 or 366 day year (as the case
may be), and interest on all Eurodollar Loans and ABR Loans, to the extent based
on the Federal Funds Rate, shall be calculated on the basis of a 360 day year,
in each case for the actual number of days elapsed. Interest shall be payable in
arrears on each Interest Payment Date and upon payment (or prepayment (or
required payment or prepayment) of the Loans, except that interest payable
pursuant to Sections 2.6(b) and 2.6(c) shall be payable on demand. Any change in
the interest rate on a Loan resulting from a change in the Alternate Base Rate
shall become effective as of the opening of business on the day on which such
change in the Alternate Base Rate shall become effective. The Administrative
Agent
-34-
shall, as soon as practicable, notify the Borrower and the Lenders of the
effective date and the amount of each such change in the Alternate Base Rate,
but failure to so notify shall not in any manner affect the obligation of the
Borrower to pay interest on the Loans in the amounts and on the dates required.
Each determination of the Alternate Base Rate or Eurodollar Rate by the
Administrative Agent pursuant to this Agreement shall be conclusive and binding
on the Borrower and the Lenders absent manifest error.
(e) HIGHEST LAWFUL RATE. At no time shall the interest rate
payable on the Loans of any Lender, together with the Commitment Fees, the
Letter of Credit Fee and all other fees and other amounts payable hereunder, to
the extent the same are construed to constitute interest, exceed the Highest
Lawful Rate applicable to such Lender. If interest payable to a Lender on any
date would exceed the maximum amount permitted by the Highest Lawful Rate, such
interest payment shall automatically be reduced to such maximum permitted
amount, and interest for any subsequent period, to the extent less than the
maximum amount permitted for such period by the Highest Lawful Rate, shall be
increased by the unpaid amount of such reduction. Any interest actually received
for any period in excess of such maximum allowable amount for such period shall
be deemed to have been applied as a prepayment of such Lender's Loans. The
Borrower acknowledges that to the extent interest payable on ABR Loans is based
on the BNY Rate, such BNY Rate is only one of the bases for computing interest
on loans made by the Lenders, and by basing interest payable on ABR Loans on the
BNY Rate, the Lenders have not committed to charge, and the Borrower has not in
any way bargained for, interest based on a lower or the lowest rate at which the
Lenders may now or in the future make loans to other borrowers.
2.7 USE OF PROCEEDS.
(a) The proceeds of all Loans shall be used (i) to finance
acquisitions permitted hereunder, including transaction expenses in connection
therewith, (ii) to make capital expenditures permitted hereunder, (iii) for
working capital purposes and (iv) for general corporate purposes.
(b) Letters of Credit shall be used to support ordinary course
working capital purposes and to fulfill deposit requirements associated with
proposed acquisitions permitted by Section 8.3.
(c) Notwithstanding anything to the contrary contained in any
Loan Document, the Borrower agrees that no part of the proceeds of any Loan or
Letter of Credit have been or will be used, directly or indirectly, for a
purpose which violates any law, rule or regulation of any Governmental
Authority, including without limitation the provisions of Regulations T, U or X
of the Board of Governors of the Federal Reserve System, as amended.
-35-
2.8 CONVERSIONS; OTHER MATTERS.
(a) The Borrower may elect from time to time to convert
Eurodollar Loans to ABR Loans by giving the Administrative Agent at least two
Business Days' prior irrevocable notice of such election, specifying the amount
to be so converted, PROVIDED, that any such conversion shall only be made on the
last day of the Interest Period applicable thereto. In addition, the Borrower
may elect from time to time to convert ABR Loans to Eurodollar Loans or to
convert Eurodollar Loans to new Eurodollar Loans by giving the Administrative
Agent at least three Business Days' prior irrevocable notice of such election,
specifying the amount to be so converted and the initial Interest Period
relating thereto, PROVIDED that any such conversion of ABR Loans to Eurodollar
Loans shall only be made on a Business Day and any such conversion of Eurodollar
Loans to new Eurodollar Loans shall only be made on the last day of the Interest
Period applicable to the Eurodollar Loans which are to be converted to such new
Eurodollar Loans. The Administrative Agent shall promptly provide the Lenders
with notice of any such election. Loans may be converted pursuant to this
Section 2.8(a) in whole or in part, PROVIDED that conversions of ABR Loans to
Eurodollar Loans, or Eurodollar Loans to new Eurodollar Loans having the same
Interest Period, shall be in an aggregate principal amount of $2,000,000 or such
amount plus a whole multiple of $250,000.
(b) Notwithstanding anything in this Agreement to the
contrary, upon the occurrence and during the continuance of a Default or Event
of Default, the Borrower shall have no right to elect to convert any ABR Loan to
a Eurodollar Loan or to convert any Eurodollar Loan to a new Eurodollar Loan. In
such event, such ABR Loan shall be automatically continued as an ABR Loan or
such Eurodollar Loan shall be automatically converted to an ABR Loan on the last
day of the Interest Period applicable to such Eurodollar Loan. If a Default or
an Event of Default shall have occurred and be continuing, the Administrative
Agent shall, at the request of the Required Lenders, notify the Borrower (by
telephone or otherwise) that all, or such lesser amount as the Administrative
Agent and the Required Lenders shall designate, of the outstanding Eurodollar
Loans, if any, shall be automatically converted to ABR Loans, in which event
such Eurodollar Loans of each Lender, at the option of such Lender, shall be
automatically converted to ABR Loans on the date such notice is given.
(c) Each such conversion shall be effected by each Lender by
applying the proceeds of the new ABR Loan or Eurodollar Loan, as the case may
be, to the Loan (or portion thereof) being converted (it being understood that
such conversion shall not constitute a borrowing for purposes of Sections 4 or
5).
(d) Notwithstanding any other provision of this Agreement:
-36-
(i) If the Borrower shall have failed to elect a
Eurodollar Loan under Sections 2.3 or 2.8, as the case may be, in connection
with any borrowing of new Loans or expiration of an Interest Period with respect
to any existing Eurodollar Loan, the amount of the Loans subject to such
borrowing or such existing Eurodollar Loan shall thereafter be an ABR Loan until
such time, if any, as the Borrower shall elect a new Eurodollar Loan pursuant to
Section 2.8,
(ii) The Borrower shall not be permitted to select
any Eurodollar Loan the Interest Period in respect of which ends later than the
Maturity Date,
(iii) When electing a Eurodollar Loan, the Borrower
shall select an Interest Period such that, on each date that a mandatory
principal payment is required to be made pursuant to Section 2.5(b) in
connection with a RC Commitment reduction pursuant to Section 2.4(b), the
outstanding principal amount of all Loans which are ABR Loans, when added to the
aggregate principal amount of all Loans which are Eurodollar Loans the Interest
Period in respect of which shall end on such date, shall equal or exceed the
aggregate principal amount of the Loans required to be paid on such date, and
(iv) The Borrower shall not be permitted to have more
than eight Interest Periods with respect to outstanding Eurodollar Loans at any
one time.
2.9 INDEMNIFICATION FOR LOSS.
In the event of (a) the payment or prepayment (voluntary or
otherwise) of any principal of any Eurodollar Loan other than on the last day of
an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto or (c) the failure to borrow, convert,
continue or prepay any Eurodollar Loan on the date specified in any notice
delivered pursuant hereto, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, such loss, cost or expense to any
Lender shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest that would have accrued on the
principal amount of such Loan had such event not occurred, at the Eurodollar
Rate that would have been applicable to such Loan, for the period from the date
of such event to the last day of the then current Interest Period therefor (or,
in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of
interest that would accrue on such principal amount for such period at the
interest rate that such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be
-37-
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
2.10 REIMBURSEMENT FOR COSTS.
The Borrower hereby agrees to reimburse each Lender and the
Issuing Bank on demand for its reasonable costs (excluding general
administrative and overhead costs) directly attributable to its compliance with
this Agreement during the term hereof with all applicable future laws, executive
orders, and regulations of the governments of the United States and the United
Kingdom, and of any other applicable government, and of any regulatory or
administrative agency thereof (including, without limitation, the reserve
requirements established by the Board of Governors of the Federal Reserve System
under Regulation D), or any change in existing or future applicable laws,
executive orders and regulations and in the interpretations thereof which
impose, modify or deem applicable any reserve, asset, special deposit or special
assessment requirements on deposits obtained in the interbank eurodollar market,
or which subject any Lender or the Issuing Bank to any tax (documentary, stamp
or otherwise) with respect to any Loan Document or Letter of Credit, or change
the basis of taxation of payments to any Lender or the Issuing Bank, of
principal, interest, fees or other amounts payable under any Loan Document or
Letter of Credit (except for any tax, or changes in the rate of tax, on its
income or receipts (including franchise taxes on or based upon such income or
receipts) imposed by the United States or any other jurisdiction). Each such
Lender and the Issuing Bank agrees to provide the Borrower with notice of any
law, executive order or regulation, or change in the interpretation thereof,
which would require the Borrower to indemnify such Lender or the Issuing Bank
under this Section 2.10 promptly upon it obtaining actual knowledge thereof and
determining that it intends to require the Borrower to reimburse it pursuant to
this Section 2.10 for any costs resulting therefrom. The cost to each Lender in
complying with laws, executive orders or regulations which impose, modify or
deem applicable any reserve, asset, special deposit or special assessment
requirements on deposits obtained in the market for eurocurrency loans shall be
computed by determining the amount by which such requirements effectively
increase such Lender's cost of making and maintaining its Eurodollar Loans and
by computing the additional amount which would have been owing to such Lender
hereunder if such effective increase had been added to the Eurodollar Rate for
purposes of determining the applicable Eurodollar Rate during the period or
applicable portion thereof in question. Each Lender and the Issuing Bank may
make multiple requests for compensation under this Section 2.10.
2.11 ILLEGALITY OF FUNDING.
Notwithstanding anything contained herein to the contrary, if
any law, regulation, treaty or directive, or any change therein or in the
interpretation or application thereof, shall make it unlawful for any Lender to
make or maintain any Eurodollar Loan
-38-
as contemplated by this Agreement, (i) the commitment of such Lender to make
Eurodollar Loans or convert ABR Loans to Eurodollar Loans, as the case may be,
shall forthwith be suspended and (ii) such Lender's then outstanding Eurodollar
Loans affected thereby, if any, shall be converted automatically to ABR Loans on
the last day of the then current Interest Period applicable thereto or at such
earlier time as may be required. If the commitment of any Lender with respect to
Eurodollar Loans is suspended pursuant to this Section 2.11 and such Lender
shall notify the Administrative Agent and the Borrower that it is once again
legal for such Lender to make or maintain Eurodollar Loans, such Lender's
commitment to make or maintain Eurodollar Loans shall be reinstated.
2.12 OPTION TO FUND.
Each Lender has indicated that, if the Borrower requests a
Eurodollar Loan, such Lender may wish to purchase one or more deposits in order
to fund or maintain its funding of its pro rata share of such Loan during the
Interest Period with respect thereto; it being understood that the provisions of
this Agreement relating to such funding are included only for the purpose of
determining the rate of interest to be paid on such Loan and any amounts owing
under Sections 2.9, 2.10, 2.11 and 2.15. Each Lender shall be entitled to fund
and maintain its funding of all or any part of its Eurodollar Loans in any
manner it sees fit, but all such determinations hereunder shall be made as if
each Lender had actually funded and maintained its Eurodollar Loans during the
applicable Interest Period through the purchase of deposits in an amount equal
to its pro rata share of the Eurodollar Loans having a maturity corresponding to
such Interest Period. Any Lender may fund its pro rata share of the Eurodollar
Loans from any branch or office of such Lender as such Lender may choose from
time to time, subject to Section 2.17.
2.13 TAXES; NET PAYMENTS.
(a) Any and all payments by or on account of any obligation of
any Loan Party hereunder and under any other Loan Document shall be made free
and clear of and without deduction for any Indemnified Taxes or Other Taxes,
PROVIDED that, if such Loan Party shall be required to deduct any Indemnified
Taxes or 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 Section), the
applicable Credit Party receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Loan Party shall make such
deductions and (iii) such Loan Party shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Loan Parties shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
-39-
(c) Each Loan Party shall indemnify each Credit Party, within
ten days after written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes paid by such Credit Party on or with respect to any payment
by or on account of any obligation of such Loan Party under the Loan Documents
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) 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 the Borrower by a Credit Party, or by
the Administrative Agent on its own behalf or on behalf of a Credit Party, shall
be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative 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 the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which the
relevant Loan Party is located, or any treaty to which such jurisdiction is a
party, with respect to payments under the Loan Documents shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will
permit such payments to be made without withholding or at a reduced rate.
2.14 CAPITAL ADEQUACY.
If the amount of capital required or expected to be maintained
by any Lender, the Issuing Bank or any Person directly or indirectly owning or
controlling such Lender or the Issuing Bank (each a "CONTROL PERSON"), shall be
affected by
(a) the introduction or phasing in of any law, rule or
regulation after the Original Effective Date,
(b) any change after the Original Effective Date in the
interpretation of any existing law, rule or regulation by any central
bank or United States or foreign Governmental Authority charged with
the administration thereof, or
(c) compliance by such Lender, the Issuing Bank or such
Control Person with any directive, guideline or request from any
central bank or United
-40-
States or foreign Governmental Authority (whether or not having the
force of law) promulgated or made Original Effective Date,
and such Person shall have determined that such introduction, phasing in, change
or compliance shall have had or will thereafter have the effect of reducing (i)
the rate of return on its capital, or (ii) the asset value to such Lender, the
Issuing Bank or such Control Person of the Loans made or maintained by such
Lender, the Letters of Credit issued or maintained by the Issuing Bank or the
Reimbursement Obligations or any participation therein owed to the Issuing Bank
or any Lender to a level below that which such Lender, the Issuing Bank or such
Control Person could have achieved or would thereafter be able to achieve but
for such introduction, phasing in, change or compliance (after taking into
account such Lender's, the Issuing Bank's or such Control Person's policies
regarding capital), in either case by an amount which it deems material, then,
within ten days after demand by such Lender or the Issuing Bank, the Borrower
shall pay to such Lender, the Issuing Bank or such Control Person, as the case
may be, such additional amount or amounts as shall be sufficient to compensate
such Lender, the Issuing Bank or such Control Person, as the case may be, for
such reduction on an after-tax basis.
2.15 SUBSTITUTED INTEREST RATE.
In the event that (i) the Administrative Agent shall have
determined (which determination shall be conclusive and binding upon the
Borrower) that by reason of circumstances affecting the interbank eurodollar
market either adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate applicable pursuant to Section 2.6 or (ii) in the event that any
Lender shall have notified the Administrative Agent that it has determined
(which determination shall be conclusive and binding on the Borrower) that the
applicable Eurodollar Rate will not adequately and fairly reflect the cost to
such Lender of maintaining or funding loans bearing interest based on such
Eurodollar Rate, with respect to a proposed Loan that the Borrower has requested
be made as a Eurodollar Loan, or a Eurodollar Loan that will result from the
requested conversion of any Loan into a Eurodollar Loan (any such Loan being
herein called an "AFFECTED LOAN"), the Administrative Agent shall promptly
notify the Borrower and the Lenders (by telephone or otherwise) of such
determination, confirmed in writing, on or prior to the requested Borrowing Date
for such Affected Loan or the requested conversion date of such Loan. If the
Administrative Agent shall give such notice, (a) any requested Affected Loan
shall be made as an ABR Loan, (b) any Loan that was to have been converted to an
Affected Loan shall be converted to or continued as an ABR Loan and (c) any
outstanding Affected Loan shall be converted, on the last day of the then
current Interest Period with respect thereto, to an ABR Loan. Until any such
notice under clause (i) of this Section 2.15 has been withdrawn by the
Administrative Agent (by notice to the Borrower promptly upon the Administrative
Agent's having determined that such circumstances affecting the interbank
eurodollar market no longer exist and that adequate and
-41-
reasonable means do exist for determining the Eurodollar Rate pursuant to
Section 2.6) no further Eurodollar Loans shall be made by the Lenders nor shall
the Borrower have the right to convert any Loans to Eurodollar Loans. Until any
such notice under clause (ii) of this Section 2.15 has been withdrawn by the
Administrative Agent (by notice to the Borrower promptly upon the Administrative
Agent's having been notified by such Lender that circumstances no longer render
any Loan an Affected Loan), no further Eurodollar Loans shall be required to be
made by such Lender nor shall the Borrower have the right to convert any Loan of
such Lender to a Eurodollar Loan of such Lender.
2.16 TRANSACTION RECORD.
The Administrative Agent's records regarding the amount of
each Loan, each payment by the Borrower of principal and interest on the Loans,
each Letter of Credit and other information relating to the Loans and Letters of
Credit shall be presumed correct absent manifest error.
2.17 CERTIFICATES OF PAYMENT AND REIMBURSEMENT; OTHER PROVISIONS
REGARDING YIELD PROTECTION.
(a) In connection with any request by a Lender or the Issuing
Bank for payment or reimbursement pursuant to Section 2.9, 2.10, 2.11, 2.14 or
2.15, such Lender or the Issuing Bank, as the case may be, shall provide the
Borrower with a certificate, signed by an officer, setting forth a description,
in reasonable detail, of any such payment or reimbursement. Each determination
by a Lender or the Issuing Bank of such amount or amounts owed by the Borrower
to it under any such Section shall be presumed correct absent manifest error,
and shall be made without duplication as to any other amounts owing by the
Borrower to it under Section 2.9, 2.10, 2.11, 2.14 or 2.15.
(b) In the event that any amount is owed by the Borrower to
any Lender pursuant to Section 2.9, 2.10, 2.11, 2.14 or 2.15 and an assignment
by such Lender of its rights and a delegation and transfer of its obligations
hereunder to another office or branch of such Lender would cause such amount to
cease to be owed by the Borrower, then such Lender shall make reasonable efforts
(which shall not in any event require such Lender to incur a loss or otherwise
suffer any disadvantage) to make an assignment of its rights and a delegation
and transfer of its obligations hereunder to such other office or branch, so
long as such assignment and delegation will not cause other amounts to be owed
by the Borrower under Section 2.9, 2.10, 2.11, 2.14 or 2.15 and so long as the
Lender shall be permitted under applicable law to make and maintain Eurodollar
Loans after giving effect to such assignment and delegation.
(c) The obligations of the Borrower under Sections 2.9, 2.10,
2.11, 2.14 and 2.15 shall survive any termination of this Agreement, the
expiration of the RC
-42-
Commitments and the payment of all indebtedness of the Borrower hereunder and
under the Loan Documents.
2.18 LETTER OF CREDIT SUB-FACILITY.
(a) Subject to the terms and conditions hereof and the payment
by the Borrower to the Issuing Bank of such fees as the Borrower and the Issuing
Bank shall have agreed in writing, the Issuing Bank agrees, in reliance on the
agreement of the other Lenders set forth in Section 2.19, to issue standby
letters of credit (each a "LETTER OF CREDIT" and, collectively, the "LETTERS OF
CREDIT") during the RC Commitment Period for the account of the Borrower,
PROVIDED that immediately after the issuance of each Letter of Credit (i) the
Letter of Credit Exposure of all Lenders shall not exceed the Letter of Credit
Commitment, and (ii) the sum of the aggregate outstanding RC Loans and the
Letter of Credit Exposure of all Lenders shall not exceed the RC Commitments.
Each Letter of Credit shall have an expiration date which shall be not later
than the earlier to occur of one year from the date of issuance or last
extension thereof or one Business Day prior to the RC Commitment Termination
Date. No Letter of Credit shall be issued if the Administrative Agent, or any
Lender by notice to the Administrative Agent and the Issuing Bank no later than
3:00 P.M. one Business Day prior to the requested date of issuance of such
Letter of Credit, shall have determined that the applicable conditions set forth
in Section 5 have not been satisfied.
(b) Each Letter of Credit shall be issued for the account of
the Borrower. The Borrower shall give the Administrative Agent and the Issuing
Bank a Letter of Credit Request for the issuance of each Letter of Credit no
later than 1:00 P.M at least three Business Days prior to the requested date of
issuance. Such Letter of Credit Request shall be accompanied by the Issuing
Bank's standard Application and Agreement for Standby Letter of Credit (each a
"REIMBURSEMENT AGREEMENT") executed by the Borrower, and shall specify (i) the
beneficiary of such Letter of Credit and the obligations of the Borrower in
respect of which such Letter of Credit is to be issued, (ii) the Borrower's
proposal as to the conditions under which a drawing may be made under such
Letter of Credit and the documentation to be required in respect thereof, (iii)
the maximum amount to be available under such Letter of Credit and (iv) the
requested date of issuance. Upon receipt of such Letter of Credit Request from
the Borrower, the Administrative Agent shall promptly notify each Lender
thereof. The Issuing Bank shall, on the proposed date of issuance and subject to
the other terms and conditions of this Agreement, issue the requested Letter of
Credit. Each Letter of Credit shall be in a minimum amount of $1,000,000 (or
such lesser amount as is acceptable to the Issuing Bank) and be in form and
substance reasonably satisfactory to the Issuing Bank, with such provisions with
respect to the conditions under which a drawing may be made thereunder and the
documentation required in respect of such drawing as the Issuing Bank shall
reasonably require. Each Letter of Credit shall be used solely for the purposes
described therein.
-43-
(c) Each payment by the Issuing Bank of a draft drawn under a
Letter of Credit shall give rise to the obligation of the Borrower to
immediately reimburse the Issuing Bank for the amount thereof. The Issuing Bank
shall promptly notify the Borrower of such payment by the Issuing Bank of a
draft drawn under a Letter of Credit, but any failure to so notify shall not in
any manner affect the obligation of the Borrower to make reimbursement when due.
In lieu of such notice, if the Borrower has not made reimbursement prior to the
end of the Business Day when due, the Borrower hereby irrevocably authorizes the
Issuing Bank to deduct the amount of any such reimbursement from any account(s)
of the Borrower maintained with the Issuing Bank, upon which the Issuing Bank
shall apply the amount of such deduction to such reimbursement. If all or any
portion of any reimbursement obligation in respect of a Letter of Credit shall
not be paid when due (whether at the stated maturity thereof, by acceleration or
otherwise), such overdue amount shall bear interest, payable upon demand, at a
rate per annum equal to the Alternate Base Rate plus the Applicable Margin
applicable to ABR Loans plus 2% (calculated in the same manner as ABR Loans),
from the date of such nonpayment until paid in full (whether before or after the
entry of a judgment thereon).
2.19 LETTER OF CREDIT PARTICIPATION.
(a) Each Lender hereby unconditionally and irrevocably,
severally (and not jointly) takes an undivided participating interest in the
obligations of the Issuing Bank under and in connection with each Letter of
Credit in an amount equal to such Lender's RC Commitment Percentage of the
amount of such Letter of Credit. Each Lender shall be liable to the Issuing Bank
for its RC Commitment Percentage of the unreimbursed amount of any draft drawn
and honored under each Letter of Credit. Each Lender shall also be liable for an
amount equal to the product of its RC Commitment Percentage and any amounts paid
by the Borrower pursuant to Sections 2.18 and 2.20 that are subsequently
rescinded or avoided, or must otherwise be restored or returned. Such
liabilities shall be unconditional and without regard to the occurrence of any
Default or Event of Default or the compliance by the Borrower with any of its
obligations under the Loan Documents.
(b) The Issuing Bank shall promptly notify the Administrative
Agent, and the Administrative Agent shall promptly notify each Lender (which
notice shall be promptly confirmed in writing), of the date and the amount of
each draft paid under each Letter of Credit with respect to which full
reimbursement payment shall not have been made by the Borrower as provided in
Section 2.18(c), and forthwith upon receipt of such notice, such Lender shall
promptly make available to the Administrative Agent for the account of the
Issuing Bank its RC Commitment Percentage of the amount of such unreimbursed
draft at the office of the Administrative Agent specified in Section 11.2 in
lawful money of the United States and in immediately available funds. The
Administrative Agent shall distribute the payments made by each Lender pursuant
to the immediately preceding sentence to the Issuing Bank promptly upon receipt
thereof in like
-44-
funds as received. Each Lender shall indemnify and hold harmless the
Administrative Agent and the Issuing Bank from and against any and all losses,
liabilities (including liabilities for penalties), actions, suits, judgments,
demands, costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses) resulting from any failure on the part of such
Lender to provide, or from any delay in providing, the Administrative Agent with
such Lender's RC Commitment Percentage of the amount of any payment made by the
Issuing Bank under a Letter of Credit in accordance with this subsection (b)
above (except in respect of losses, liabilities or other obligations suffered by
the Administrative Agent or the Issuing Bank, as the case may be, resulting from
the gross negligence or willful misconduct of the Administrative Agent or the
Issuing Bank, as the case may be). If a Lender does not make available to the
Administrative Agent when due such Lender's RC Commitment Percentage of any
unreimbursed payment made by the Issuing Bank under a Letter of Credit, such
Lender shall be required to pay interest to the Administrative Agent for the
account of the Issuing Bank on such Lender's RC Commitment Percentage of such
payment at a rate of interest per annum equal to (i) from the date such Lender
should have made such amount available until the third day therefrom, the
Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective
Rate plus 2%, in each case payable upon demand by the Issuing Bank. The
Administrative Agent shall distribute such interest payments to the Issuing Bank
upon receipt thereof in like funds as received.
(c) Whenever the Administrative Agent is reimbursed by the
Borrower, for the account of the Issuing Bank, for any payment under a Letter of
Credit and such payment relates to an amount previously paid by a Lender in
respect of its RC Commitment Percentage of the amount of such payment under such
Letter of Credit, the Administrative Agent (or the Issuing Bank, if such payment
by a Lender was paid by the Administrative Agent to the Issuing Bank) will
promptly pay over such payment to such Lender.
2.20 ABSOLUTE OBLIGATION WITH RESPECT TO LETTER OF CREDIT PAYMENTS.
(a) The Borrower's obligation to reimburse the Issuing Bank
for each payment under or in respect of each Letter of Credit shall be absolute
and unconditional under any and all circumstances and irrespective of any
setoff, counterclaim or defense to payment which the Borrower may have or have
had against the beneficiary of such Letter of Credit, the Administrative Agent,
the Issuing Bank, any Lender or any other Person, including, without limitation,
any defense based on the failure of any drawing to conform to the terms of such
Letter of Credit, any drawing document proving to be forged, fraudulent or
invalid, or the legality, validity, regularity or enforceability of such Letter
of Credit, PROVIDED, however, that, with respect to any Letter of Credit, the
foregoing shall not relieve the Issuing Bank of any liability it may have to the
Borrower for any actual damages sustained by the Borrower arising from a
wrongful payment (or failure to pay)
-45-
under such Letter of Credit made as a result of the Issuing Bank's gross
negligence or willful misconduct.
3. FEES; PAYMENTS
3.1 FEES.
(a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a fee (the "COMMITMENT FEE") during the RC Commitment
Period, payable quarterly in arrears on the last day of each March, June,
September and December of each year, commencing on the first such date following
the Original Effective Date, and on the RC Commitment Termination Date, on the
average daily excess of (i) the RC Commitment of such Lender, over (ii) the
aggregate outstanding principal balance of the RC Loans of such Lender plus its
Letter of Credit Exposure, at a rate per annum equal to (a) at all times when
the Total Leverage Ratio is greater than or equal to 4.50:1.00, 0.500% (or
0.625% if Total Facility Usage is less than 0.50) and (b) at all times when the
Total Leverage Ratio is less than 4.50:1.00, 0.375% (or 0.500% if Total Facility
Usage is less than 0.50). The Commitment Fee shall be computed on the basis of a
360-day year for the actual number of days elapsed.
(b) Solely for purposes of calculating the Commitment Fee,
changes in the Total Leverage Ratio, as evidenced by a Compliance Certificate
delivered to the Administrative Agent pursuant to Section 7.1(d), a Borrowing
Request or Letter of Credit Request delivered to the Administrative Agent
pursuant to Section 5.2(c) or a notice of prepayment pursuant to Section 2.5(a)
(in the case of a Borrowing Request, Letter of Credit Request and notice of
prepayment resulting in a net increase or decrease, as applicable, in the
aggregate outstanding RC Loans and Letter of Credit Exposure of all Lenders on
any Business Day of $10,000,000 or more) in each case evidencing such a change,
shall become effective upon (i) in the case of the delivery of a Compliance
Certificate, the first Business Day following the delivery of (x) such
Compliance Certificate and (y) the applicable financial statements required to
be delivered pursuant to Section 7.1(a) or (c), as the case may be, and (ii) in
the case of the delivery of a Borrowing Request, Letter of Credit Request or
notice of prepayment, the Borrowing Date or the prepayment date, as the case may
be, applicable thereto. Solely for purposes of calculating the Commitment Fee,
if the Borrower shall fail to deliver a Compliance Certificate within 60 days
after the end of each of the first three fiscal quarters, or within 105 days
after the end of the last fiscal quarter, of each fiscal year (each a
"CERTIFICATE DELIVERY DATE"), the Total Leverage Ratio from and including such
certificate delivery date to the date of delivery by the Borrower to the
Administrative Agent of such Compliance Certificate shall be conclusively
presumed to be greater than 4.50:1.00.
-46-
(c) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a fee (the "LETTER OF CREDIT FEE") with respect to
the Letters of Credit during the period commencing on the Original Effective
Date and ending on the RC Commitment Termination Date or, if later, the date
when the Letter of Credit Exposure of all Lenders is $0, payable quarterly in
arrears on the last day of each March, June, September and December of each
year, commencing on the first such date following the Original Effective Date,
on the RC Commitment Termination Date and on the last date of such period, on
such Lender's RC Commitment Percentage of the average daily aggregate amount
which may be drawn under the Letters of Credit during such period (whether or
not the conditions for drawing thereunder have or may be satisfied) multiplied
by a rate per annum equal to the Applicable Margin for Eurodollar Loans during
such period. The Letter of Credit Fee shall be computed on the basis of a
360-day year for the actual number of days elapsed.
3.2 PRO RATA TREATMENT AND APPLICATION OF PAYMENTS.
All payments (including prepayments) made by the Borrower to
the Administrative Agent on account of principal of or interest on the RC Loans
shall be made pro rata according to the outstanding principal amount of each
Lender's RC Loans. All payments by the Borrower shall be made without set-off or
counterclaim and shall be made prior to 1:00 P.M. on the date such payment is
due, to the Administrative Agent for the account of the Lenders, at the
Administrative Agent's office specified in Section 11.2, in each case in lawful
money of the United States of America and in immediately available funds, and,
as between the Borrower and the Lenders, any payment by the Borrower to the
Administrative Agent for the account of the Lenders shall be deemed to be
payment by the Borrower to the Lenders. The failure of the Borrower to make any
such payment by 1:00 P.M. on such due date shall not constitute a Default or
Event of Default hereunder, PROVIDED that such payment is made on such due date,
but any such payment received by the Administrative Agent on any Business Day
after 1:00 P.M. shall be deemed to have been received on the immediately
succeeding Business Day for the purpose of calculating any interest payable in
respect thereof. The Administrative Agent agrees promptly to notify the Borrower
if it shall receive any such payment after 1:00 P.M. on the due date hereof,
PROVIDED that the failure of the Administrative Agent to give such prompt notice
shall in no way affect the Borrower's obligation to make any payment hereunder
on the date such payment is due. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. Unless
otherwise set forth in the definition of "Interest Period", if any payment
hereunder or on any Note becomes due and payable on a day other than a Business
Day, the maturity thereof shall be extended to the next succeeding Business Day
and, with respect to payments of principal, interest thereon shall be payable at
the then applicable rate or rates during such extension.
-47-
4. REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent, the Issuing Bank and the
Lenders to enter into this Agreement and to make Loans, and in order to induce
the Issuing Bank to issue Letters of Credit and the Lenders to participate
therein, the Borrower hereby makes the following representations and warranties
to the Administrative Agent, the Issuing Bank and to each Lender:
4.1 SUBSIDIARIES.
As of the Second Restatement Date, the Borrower has only the
Subsidiaries set forth in Schedule 4.1, which Schedule sets forth the name,
jurisdiction of incorporation or organization and capitalization of each
Subsidiary. Except as set forth in Schedule 4.1, the shares of each corporate
Subsidiary owned by the Borrower are duly authorized, validly issued, fully paid
and nonassessable. The shares of each Subsidiary are owned free and clear of any
Liens, except (i) Liens in favor of the Administrative Agent and the Lenders
pursuant to the Collateral Documents and (ii) Permitted Liens.
4.2 CORPORATE EXISTENCE AND POWER.
Each of the Borrower and each Subsidiary is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, has all requisite corporate power and authority
to own its Property and to carry on its business as now conducted, and, except
as provided in Schedule 4.2 (none of which exceptions individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect), is in
good standing and authorized to do business in each jurisdiction in which the
failure to be so authorized could reasonably be expected to have a Material
Adverse Effect. Schedule 4.2 sets forth, with respect to each Loan Party not in
good standing, the jurisdiction in which such Loan Party is not in good standing
and the reason therefor.
4.3 AUTHORITY.
The Borrower and each other Loan Party has full power and
authority to enter into, execute, deliver and carry out the terms of the
Transaction Documents to which it is a party, to make the borrowings
contemplated hereby, to execute, deliver and carry out the terms of the Notes
and to incur the obligations provided for herein and therein, all of which have
been duly authorized by all proper and necessary action and are in full
compliance with its certificate of incorporation and by-laws.
4.4 GOVERNMENTAL AUTHORITY APPROVALS.
No consent, authorizations or approval of, filing with, notice
to, or exemption by, stockholders, any Governmental Authority or any other
Person (except for
-48-
those which have been obtained, made or given and those which will be obtained,
made or given prior to the Second Restatement Date) is required to authorize, or
is required in connection with the execution, delivery and performance of the
Transaction Documents, or is required as a condition to the validity or, except
as expressly set forth in the Collateral Documents with respect to the FCC, the
enforceability of the Transaction Documents. Except as set forth in the
preceding sentence, no provision of any applicable statute, law (including,
without limitation, any applicable usury or similar law), rule or regulation of
any Governmental Authority will prevent the execution, delivery or performance
of, or affect the validity of, the Transaction Documents.
4.5 BINDING AGREEMENT.
The Transaction Documents constitute the valid and legally
binding obligations of the Borrower and each other Loan Party to which it is a
party, enforceable in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally.
4.6 LITIGATION.
(a) Except as set forth in Schedule 4.6, there are no actions,
suits, arbitration proceedings or claims (whether or not purportedly on behalf
of the Borrower or any Subsidiary) pending or, to the knowledge of the Borrower,
threatened against the Borrower or any Subsidiary, or maintained by the Borrower
or any Subsidiary, at law or in equity, before any Governmental Authority which
could reasonably be expected to have a Material Adverse Effect. There are no
proceedings pending or, to the knowledge of the Borrower, threatened against the
Borrower or any Subsidiary which call into question the validity or
enforceability of any of the Transaction Documents.
(b) Since the Second Restatement Date, there has been no
change in the status of the matters disclosed on Schedule 4.6 that, individually
or in the aggregate, has resulted in, or materially increased the likelihood of,
a Material Adverse Effect.
4.7 NO CONFLICTING AGREEMENTS.
Except as set forth in Schedule 4.7, neither the Borrower nor
any Subsidiary is in default under any mortgage, indenture, contract, agreement,
judgment, decree or order to which it is a party or by which it or any of its
Property is bound, which defaults, taken as a whole, could reasonably be
expected to have a Material Adverse Effect. Except for any Lien created by any
Loan Document, the execution, delivery or carrying out of the terms of the
Transaction Documents will not constitute a default under, conflict with,
require any consent under (other than consents which have been obtained) or
result in the creation or imposition of, or obligation to create, any Lien upon
-49-
the Property of the Borrower or any Subsidiary pursuant to the terms of any such
mortgage, indenture, contract, agreement, judgment, decree or order, which
defaults, conflicts and consents, if not obtained, taken as a whole, could
reasonably be expected to have a Material Adverse Effect.
4.8 TAXES.
Except as set forth in Schedule 4.8, the Borrower and each
Subsidiary has filed or caused to be filed all tax returns required to be filed
and has paid, or has made adequate provision for the payment of, all Taxes shown
to be due and payable on said returns or in any assessments made against it
which would be material to the Borrower or any Subsidiary, and no tax Liens
(other than Permitted Liens) have been filed. Except as set forth in Schedule
4.8, the charges, accruals and reserves on the books of the Borrower and each
Subsidiary with respect to all federal, state, local and other Taxes are, to the
best knowledge of the Borrower, adequate, and the Borrower knows of no unpaid
assessment which is due and payable against it or any Subsidiary or any claims
being asserted which could reasonably be expected to have a Material Adverse
Effect, except such thereof as are being contested in good faith and by
appropriate proceedings diligently conducted, and for which adequate reserves
have been set aside in accordance with GAAP.
4.9 COMPLIANCE WITH APPLICABLE LAWS.
Neither the Borrower nor any Subsidiary is in default with
respect to any judgment, order, writ, injunction, decree or decision of any
Governmental Authority which default could reasonably be expected to have a
Material Adverse Effect. The Borrower and each Subsidiary is complying in all
material respects with all applicable statutes and regulations, including ERISA,
of all Governmental Authorities, a violation of which could reasonably be
expected to have a Material Adverse Effect.
4.10 GOVERNMENTAL REGULATIONS.
Neither the Borrower nor any Subsidiary is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act or the Investment Company Act of 1940, and neither the Borrower nor
any Subsidiary is subject to any statute or regulation which prohibits or
restricts the incurrence of Indebtedness under the Loan Documents, including,
without limitation, statutes or regulations relative to common or contract
carriers or to the sale of electricity, gas, steam, water, telephone, telegraph
or other public utility services.
4.11 PROPERTY; BROADCASTING BUSINESS.
(a) The Borrower and each Subsidiary has good and, except with
respect to FCC licenses which cannot be transferred without the consent of the
applicable
-50-
Governmental Authority, marketable title to all of its Property, title to which
is material to the Borrower and the Subsidiaries taken as a whole, subject to no
Liens, except Liens in favor of the Administrative Agent and the Lenders
pursuant to the Collateral Documents and Permitted Liens.
(b) The Borrower and the Subsidiaries are the registered
holders of all licenses duly issued by the FCC in respect of all Broadcasting
Stations owned and operated by the Borrower and each Subsidiary. Such licenses
constitute all of the authorizations by the FCC or any other Governmental
Authority necessary for the operation of the business of the Borrower and each
Subsidiary substantially in the manner presently being conducted by it, and such
licenses are validly issued and in full force and effect, unimpaired by any act
or omission by the Borrower or such Subsidiary. To the best of the Borrower's
knowledge, except as set forth in Schedule 4.11(b), neither the Borrower nor any
Subsidiary is a party to any investigation, notice of violation, order or
complaint issued by or before the FCC which could reasonably be expected to have
a Material Adverse Effect. Except for such proceedings that affect the radio
broadcasting industry generally and as set forth in Schedule 4.11(b), there are
no proceedings by or before the FCC, which could in any manner materially
threaten or adversely affect the validity of any of such licenses. Neither the
Borrower nor any Subsidiary has knowledge of a threat of any investigation,
notice of violation, order, complaint or proceeding before the FCC which could
reasonably be expected to have a Material Adverse Effect or has any reason to
believe that any of such licenses will not be renewed in the ordinary course.
(c) Schedule 4.11(c) sets forth the address of each real
property that is owned or leased by the Borrower or any Subsidiary as of the
Second Restatement Date after giving effect to the Transactions and specifies
each thereof, the fair market value of which is greater than or equal to
$2,000,000.
4.12 FEDERAL RESERVE REGULATIONS; USE OF PROCEEDS.
Neither the Borrower nor any Subsidiary is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. No part of
the proceeds of the Loans or Letters of Credit will be used, directly or
indirectly, to purchase or carry any Margin Stock or for a purpose which
violates any law, rule or regulation of any Governmental Authority, including
without limitation the provisions of Regulations T, U or X of the Board of
Governors of the Federal Reserve System, as amended.
4.13 NO MISREPRESENTATION.
No representation or warranty contained herein and no
certificate or report furnished or to be furnished by the Borrower or any
Subsidiary in connection with the transactions contemplated hereby, contains or
will contain a misstatement of material
-51-
fact, or, to the best knowledge of the Borrower or any Subsidiary omits or will
omit to state a material fact required to be stated in order to make the
statements herein or therein contained not misleading in the light of the
circumstances under which made.
4.14 PLANS.
The Borrower and each Subsidiary have only the Plans listed in
Schedule 4.14. Each Single Employer Plan and, to the best knowledge of the
Borrower, each Multiemployer Plan is in compliance in all material respects with
the applicable provisions of ERISA and the Code, and the Borrower and each
Subsidiary have filed all reports required to be filed by them under ERISA and
the Code with respect to each such Plan. The Borrower and each Subsidiary have
met all material requirements imposed by ERISA and the Code with respect to the
funding of all Plans, including Multiemployer Plans. Since the effective date of
ERISA, there have not been, nor are there now existing, any events or conditions
which would permit any Single Employer Plan or, to the best knowledge of the
Borrower, Multiemployer Plan to be terminated under circumstances which would
cause the Lien provided under Section 4068 of ERISA to attach to the Property of
the Borrower or any Subsidiary. Since the effective date of ERISA, no Reportable
Event which may constitute grounds for the termination of any Single Employer
Plan or, to the best knowledge of the Borrower, Multiemployer Plan under Title
IV of ERISA has occurred and no Single Employer Plan or Multiemployer Plan has
been terminated in whole or in part.
4.15 FCC MATTERS.
The Borrower and each Subsidiary (i) have duly and timely
filed all filings which are required to be filed by the Borrower and each
Subsidiary under the Communications Act and the rules and regulations of the
FCC, the failure to file of which could reasonably be expected to have a
Material Adverse Effect, and (ii) are in all respects in compliance with the
Communications Act, including, without limitation, the rules and regulations of
the FCC relating to the transmission of radio signals, the failure to comply of
which could reasonably be expected to have a Material Adverse Effect.
4.16 BURDENSOME OBLIGATIONS.
Neither the Borrower nor any Subsidiary is a party to or bound
by any franchise, agreement, deed, lease or other instrument, or subject to any
corporate restriction which, in the opinion of the management of the Borrower,
is so unusual or burdensome, in the context of the Borrower's or such
Subsidiary's business, as in the foreseeable future could reasonably be expected
to have a Material Adverse Effect. The Borrower does not presently anticipate
that future expenditures needed to meet the provisions of federal or state
statutes, orders, rules or regulations will be so burdensome as to have a
Material Adverse Effect.
-52-
4.17 FINANCIAL STATEMENTS.
(a) The Parent has heretofore furnished to the Credit Parties
the Parent's (i) Form 10-K for the fiscal year ended December 31, 1999
containing (x) the annual audited Consolidated Balance Sheets of the Parent and
its Subsidiaries as of December 31, 1999, together with the related Consolidated
Statements of Operations, Shareholders' Equity and Cash Flows for the period
then ended, reported on by the Accountants, and (y) the unaudited Consolidating
Balance Sheets of the Parent and its Subsidiaries as of December 31, 1999,
together with the related Consolidating Statements of Operations, and (ii) Form
10-Q for the fiscal quarter ended March 31, 2000 containing (x) the unaudited
Consolidated Balance Sheets of the Parent and its Subsidiaries as of March 31,
2000, together with the related Consolidated Statements of Operations for the
periods then ended and (y) the unaudited Consolidating Balance Sheets of the
Parent and its Subsidiaries as of March 31, 2000, together with the related
Consolidating Statements of Operations, each certified by its chief financial
officer. The foregoing financial statements fairly present, in all material
respects, the Consolidated and Consolidating financial condition and results in
the operations of the Parent and its Subsidiaries as of the dates and for the
periods indicated therein and have been prepared in conformity with GAAP and are
consistent with the books and records of the Parent (which books and records are
correct and complete), subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) above.
(b) Except as reflected in such financial statements or in the
footnotes thereto, neither the Parent nor any of its Subsidiaries has any
obligation or liability of any kind (whether fixed, accrued, contingent,
unmatured or otherwise) which, in accordance with GAAP, should have been shown
on such financial statements and was not. Since December 31, 1999, there has
been no Material Adverse Change.
4.18 ENVIRONMENTAL MATTERS.
(a) Except as set forth in Schedule 4.18, neither the Borrower
nor any Subsidiary (i) has received written notice or otherwise learned of any
claim, demand, action, event, condition, report or investigation indicating or
concerning any potential or actual liability which individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect arising
in connection with (x) any noncompliance with or violation of the requirements
of any Environmental Law, or (y) the release or threatened release of any toxic
or hazardous waste, substance or constituent, or other substance into the
environment, (ii) to the best knowledge of the Borrower, has any threatened or
actual liability in connection with the release or threatened release of any
toxic or hazardous waste, substance or constituent, or other substance into the
environment which individually or in the aggregate could reasonably be expected
to have a Material Adverse Effect, (iii) has received notice of any federal or
state investigation evaluating whether any remedial action is needed to respond
to a release or threatened release of any toxic or
-53-
hazardous waste, substance or constituent or other substance into the
environment for which the Borrower or any Subsidiary is or may be liable which
individually or in the aggregate could reasonably be expected to have a Material
Adverse Effect, or (iv) has received notice that the Borrower or any Subsidiary
is or may be liable to any Person under any Environmental Law which individually
or in the aggregate could reasonably be expected to have a Material Adverse
Effect. The Borrower and each of its Subsidiaries is in compliance in all
material respects with the financial responsibility requirements of all
Environmental Laws to the extent applicable, including, without limitation,
those contained in 40 C.F.R., parts 264 and 265, subpart H, and any analogous
state law.
(b) Since the Second Restatement Date, there has been no
change in the status of the matters disclosed on Schedule 4.18 that,
individually or in the aggregate, has resulted in, or materially increased the
likelihood of, a Material Adverse Effect.
5. CONDITIONS OF EFFECTIVENESS AND LENDING
5.1 EFFECTIVENESS.
The effectiveness of this Agreement is subject to the prior or
simultaneous fulfillment of the following conditions precedent:
(a) EVIDENCE OF CORPORATE OR OTHER ACTION. The Administrative
Agent shall have received a certificate, dated the Third Restatement Date, of
the Secretary or an Assistant Secretary of each of the Parent, the Borrower and
each other Loan Party (i) attaching a true and complete copy of the resolutions
of its Board of Directors or other authorizing documents and of all documents
evidencing all necessary corporate or other action (in form and substance
reasonably satisfactory to the Administrative Agent) taken by it to authorize
the Third Restatement Transaction Documents to which it is a party and the
transactions contemplated thereby, (ii) attaching a true and complete copy of
its certificate of incorporation and by-laws or other organizational documents,
and (iii) setting forth the incumbency of its officer or officers who may sign
such Third Restatement Transaction Documents, including therein a signature
specimen of such officer or officers.
(b) THIRD RESTATEMENT TRANSACTION DOCUMENTS. The
Administrative Agent shall have received each of the following:
(i) counterparts of this Agreement duly executed by
the Borrower and the Required Lenders;
(ii) the Parent Guaranty, duly executed on behalf of
the Parent and the Borrower by an Authorized Signatory thereof;
-54-
(iii) the Supplement, dated as of the Third
Restatement Date, to the Subsidiary Guaranty, duly executed on behalf of
Acquisition Corp. and each of its Subsidiaries by an Authorized Signatory
thereof, together with:
(1) one or more share certificates, representing all
of the issued and outstanding Stock of each of the
Subsidiaries of Acquisition Corp., together with undated stock
powers, duly executed in blank on behalf of the record and
beneficial owner thereof by an Authorized Signatory thereof;
(2) all documents evidencing intercompany
Indebtedness owing to Acquisition Corp. or any of its
Subsidiaries; and
(3) such financing statements or amendments thereto,
recordations and other documents with respect thereto as the
Administrative Agent or Special Counsel may request for the
purpose of perfecting the Liens granted thereunder, and all
filing fees and Taxes in connection therewith shall have been
paid or otherwise provided for and the Administrative Agent
and Special Counsel shall have received satisfactory evidence
thereof.
(c) BRIDGE LOAN TERMINATION. The Bridge Loans shall have been
paid in full and all obligations of the Parent, Acquisition Corp. and each of
its Subsidiaries under the Bridge Loan Documents shall have been paid in full,
and in connection therewith: (i) all commitments thereunder shall have been
terminated, (ii) all Liens thereunder shall have been terminated, (iii) each of
the Bridge Loan Documents shall have been terminated, (iv) each of the Parent,
Acquisition Corp. and its Subsidiaries shall have been released thereunder and
(v) the Administrative Agent shall have received one or more share certificates,
representing all of the issued and outstanding Stock of each of the Borrower and
Acquisition Corp., together with undated stock powers, duly executed in blank on
behalf of the record and beneficial owner thereof by an Authorized Signatory
thereof, in each case in a manner satisfactory to the Administrative Agent, and
the Administrative Agent shall have received a certificate of the Parent, dated
the Third Restatement Date, signed by an Authorized Signatory thereof, to such
effect.
(d) OPINION OF COUNSEL TO THE PARENT AND ITS SUBSIDIARIES. The
Administrative Agent shall have received an opinion of the General Counsel of
the Parent and its Subsidiaries, addressed to the Administrative Agent and the
other Credit Parties and dated the Third Restatement Date, in form and substance
satisfactory to the Administrative Agent. It is understood that such opinion is
being delivered to the Administrative Agent and the other Credit Parties upon
the direction of the Parent and the other Loan Parties and that the
Administrative Agent and the other Credit Parties may and will rely upon such
opinion.
-55-
(e) NO DEFAULT OR EVENT OF DEFAULT. The Administrative Agent
shall have received a certificate of the Parent and the Borrower, signed by an
Authorized Signatory thereof, certifying that on the Third Restatement Date,
both immediately before and after giving effect to this Agreement, (i) no
Default or Event of Default shall exist and (ii) all representations and
warranties contained in the Loan Documents, as amended by the Third Restatement
Transaction Documents, shall be true and correct in all respects with the same
effect as though such representations and warranties had been made on the Third
Restatement Date.
(f) OTHER DOCUMENTS. The Administrative Agent shall have
received such other documents as the Administrative Agent shall reasonably
require in connection with the effectiveness of this Agreement.
5.2 ALL LOANS AND LETTERS OF CREDIT.
The obligation of the Lenders to make any Loan on a Borrowing
Date, and the obligation of the Issuing Bank to issue a Letter of Credit on a
Borrowing Date, is subject to the satisfaction of the following conditions
precedent as of the date of such Loan or Letter of Credit:
(a) COMPLIANCE. On each Borrowing Date and after giving effect
to the Loans or Letter of Credit to be made or issued thereon, (i) the Loan
Parties shall be in compliance with all of the terms, covenants and conditions
of the Loan Documents, (ii) there shall exist no Default or Event of Default,
(iii) the representations and warranties contained in the Loan Documents shall
be true and correct with the same effect as though such representations and
warranties had been made on such Borrowing Date, except as the context otherwise
requires, except as otherwise permitted or contemplated by this Agreement, and
except such matters relating thereto as are indicated in each Borrowing Request
which shall be reasonably satisfactory to the Administrative Agent and the
Required Lenders, and (iv) there shall have occurred no Material Adverse Change
since December 31, 1999. Each borrowing by the Borrower and each issuance of a
Letter of Credit shall constitute a certification by the Borrower as of the date
of such borrowing or issuance that each of the foregoing matters is true and
correct in all respects.
(b) LOAN CLOSINGS. All documents required by the provisions of
this Agreement to be executed or delivered to the Administrative Agent on or
before the applicable Borrowing Date shall have been executed and shall have
been delivered at the office of the Administrative Agent set forth in Section
11.2 on or before such Borrowing Date.
(c) BORROWING REQUEST OR LETTER OF CREDIT REQUEST. The
Administrative Agent shall have received a Borrowing Request or a Letter of
Credit Request, as applicable, duly executed by an Authorized Signatory of the
Borrower.
-56-
(d) REIMBURSEMENT AGREEMENT. In connection with any Letter of
Credit Request, the Issuing Bank shall have received a Reimbursement Agreement
duly executed by an Authorized Signatory of the Borrower.
(e) APPROVAL OF COUNSEL. All legal matters in connection with
the making of each Loan or issuance of such Letter of Credit shall be reasonably
satisfactory to Special Counsel.
(f) OTHER DOCUMENTS. The Administrative Agent shall have
received such other documents as the Administrative Agent shall reasonably
request.
6. FINANCIAL COVENANTS
The Borrower covenants and agrees that on and after the Original
Effective Date and until all obligations of the Borrower under the Notes and the
other Loan Documents have been paid in full and all RC Commitments of the
Lenders have been terminated and no obligations of the Administrative Agent, the
Issuing Bank or any of the Lenders exist under any of the Loan Documents:
6.1 TOTAL LEVERAGE RATIO.
The Parent shall maintain at all times a Total Leverage Ratio
not greater than the applicable ratio set forth below opposite the applicable
period set forth below:
PERIODS Ratio
---------------------------------------------------------------------- --------------------
Second Restatement Date through December 30, 2000 6.75:1.00
---------------------------------------------------------------------- --------------------
December 31, 2000 through December 30, 2001 6.50:1.00
---------------------------------------------------------------------- --------------------
December 31, 2001 through December 30, 2002 6.00:1.00
---------------------------------------------------------------------- --------------------
December 31, 2002 through December 30, 2003 5.50:1.00
---------------------------------------------------------------------- --------------------
December 31, 2003 through December 30, 2004 5.00:1.00
---------------------------------------------------------------------- --------------------
December 31, 2004 through December 30, 2005 4.50:1.00
---------------------------------------------------------------------- --------------------
December 31, 2005 and thereafter 4.00:1.00
====================================================================== ====================
6.2 CONSOLIDATED ANNUAL OPERATING CASH FLOW TO PRO-FORMA DEBT SERVICE.
The Parent shall maintain as at the end of each fiscal quarter
a ratio of Consolidated Annual Operating Cash Flow to Pro-Forma Debt Service not
less than 1.10:1.00.
-57-
6.3 CONSOLIDATED ANNUAL OPERATING CASH FLOW TO INTEREST EXPENSE.
The Parent shall maintain as at the end of each fiscal quarter
during the applicable periods set forth below a ratio of Consolidated Annual
Operating Cash Flow to Interest Expense not less than the ratio set forth below
opposite the applicable period set forth below:
PERIODS Ratio
---------------------------------------------------------------------- --------------------
Second Restatement Date through March 30, 2002 1.75:1.00
---------------------------------------------------------------------- --------------------
March 31, 2002 through March 30, 2003 2.00:1.00
---------------------------------------------------------------------- --------------------
March 31, 2003 through March 30, 2004 2.25:1.00
---------------------------------------------------------------------- --------------------
March 31, 2004 and thereafter 2.50:1.00
====================================================================== ====================
6.4 CONSOLIDATED ANNUAL OPERATING CASH FLOW TO FIXED CHARGES.
Commencing with the fiscal quarter ending December 31, 2000,
the Parent shall maintain as at the end of each fiscal quarter a ratio of
Consolidated Annual Operating Cash Flow to Fixed Charges not less than
1.10:1.00.
6.5 SUBORDINATED INDENTURE DEBT TO OPERATING CASH FLOW RATIO.
The Borrower shall maintain at all times a Subordinated
Indenture Debt to Operating Cash Flow Ratio not greater than 7.00:1.00.
7. AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that on and after the Original
Effective Date and until all obligations of the Borrower under the Notes and the
other Loan Documents have been paid in full and all RC Commitments have been
terminated and no obligations of the Administrative Agent, the Issuing Bank or
any of the Lenders exist under any of the Loan Documents or any Letter of
Credit, the Borrower shall:
7.1 FINANCIAL STATEMENTS.
Maintain, and cause each Subsidiary to maintain, a standard
system of accounting in accordance with GAAP, and furnish or cause to be
furnished to the Administrative Agent and each Lender:
(a) As soon as available, but in any event within 105 days
after the end of each fiscal year of the Borrower or the Parent, as applicable:
-58-
(i) a copy of the Parent's Annual Report on Form 10-K
in respect of such fiscal year, together with the financial statements required
to be attached thereto,
(ii) to the extent required to be delivered pursuant
to the Subordinated Indenture, a copy of the Consolidated balance sheets of the
Borrower and its Subsidiaries as at the end of such fiscal year, together with
the related Consolidated statements of operations, stockholders' equity and cash
flows of the Borrower and its Subsidiaries as of and through the end of such
fiscal year, and
(iii) the Consolidating balance sheets of the Parent
and its Subsidiaries as at the end of such fiscal year, together with the
related Consolidating statements of operations and shareholders' equity as of
and through the end of such fiscal year, setting forth in each case, in
comparative form, the Consolidating figures for the preceding fiscal year.
The Consolidated financial statements referred to in clause
(i) and (ii) above shall be audited and certified without qualification by the
Accountants, which certification shall (i) state that the examination by such
Accountants in connection with such Consolidated financial statements has been
made in accordance with generally accepted auditing standards and, accordingly,
included such tests of the accounting records and such other auditing procedures
as were considered necessary in the circumstances, (ii) include the opinion of
such Accountants that such Consolidated financial statements have been prepared
in accordance with GAAP in a manner consistent with prior fiscal periods, except
as otherwise specified in such opinion. The Consolidating statements referred to
in clause (iii) above shall be certified by the chief financial officer of the
Parent or the Borrower, as applicable (or such other officer as shall be
acceptable to the Administrative Agent), as being complete and correct in all
material respects and as presenting fairly the Consolidating financial condition
and the Consolidating results of operations of the Parent and its Subsidiaries
or the Borrower and its Subsidiaries, as applicable.
(b) Simultaneously with the delivery of the certified
Consolidated financial statements required by clause (a) above, copies of a
certificate of such Accountants stating that, in making the examination
necessary for their audit of such financial statements for such fiscal year,
nothing came to their attention of an accounting nature that caused them to
believe that the Borrower or the Parent, as applicable, was not in compliance
with the terms, covenants, provisions, or conditions of this Agreement,
including, without limitation, Sections 6.1, 6.2, 6.3, 6.4 and 6.5, or, if so,
specifying in such certificate all such instances of noncompliance and the
nature and status thereof.
-59-
(c) As soon as available, but in any event not later than 60
days after the end of each of the first three quarterly accounting periods in
each fiscal year of the Borrower or the Parent, as applicable:
(i) a copy of the Parent's Quarterly Report on Form
10-Q in respect of such fiscal quarter, together with the financial statements
required to be attached thereto,
(ii) to the extent required to be delivered pursuant
to the Subordinated Indenture, a copy of the Consolidated balance sheets of the
Borrower and its Subsidiaries as at the end of each such quarterly period,
together with the related Consolidated statements of operations and cash flows
of the Borrower and its Subsidiaries as of and through the end of such fiscal
quarter and for the elapsed portion of the fiscal year through such date; and
(iii) a copy of the Consolidating balance sheets of
the Parent and its Subsidiaries as at the end of each such quarterly period,
together with the related Consolidating statements of operations of the Parent
and its Subsidiaries as of and through the end of such fiscal quarter and for
the elapsed portion of the fiscal year through such date.
The statements referred to in clauses (i), (ii) and (iii)
above shall be certified by the chief financial officer of the Parent or the
Borrower, as applicable (or such other officer as shall be acceptable to the
Administrative Agent), as being complete and correct in all material respects
and as presenting fairly the Consolidated and Consolidating financial condition
and the Consolidated and Consolidating results of operations of the Parent and
its Subsidiaries or the Borrower and its Subsidiaries, as applicable.
(d) Within 60 days after the end of each of the first three
fiscal quarters (105 days after the end of the fourth fiscal quarter) of the
Borrower, a Compliance Certificate as at the end of such fiscal quarter,
certified by the chief financial officer of the Borrower (or such other officer
as shall be acceptable to the Administrative Agent).
(e) Concurrently with the delivery of the financial statements
referred to in Sections 7.1(a) and (c), a profile of each Broadcasting Station
or other media asset, which shall include, but not be limited to, the call
letters and location of each Broadcasting Station and management's estimate of
the fair market value of each Broadcasting Station or other media asset and a
management's discussion and analysis of such financial statements, including a
summary of all acquisitions and dispositions of Broadcasting Stations or other
media assets and acquisitions of real property that occurred during the period
covered by such financial statements, which shall include a
-60-
schedule of the consideration paid in each acquisition and the cash received in
each disposition.
(f) Within 30 days after the beginning of each fiscal year, an
annual Consolidated and Consolidating forecast for the Borrower and its
Subsidiaries for such fiscal year and the following two fiscal years, including
projected Consolidated and Consolidating statements of income of the Borrower
and its Subsidiaries, all in reasonable detail acceptable to the Administrative
Agent; (ii) promptly upon preparation thereof, such other forecasts that the
Borrower or any of its Subsidiaries may prepare and any revisions that may be
made to any forecast previously delivered to the Lenders; and (iii) no later
than 30 days after the end of each fiscal quarter in which there has been a
material deviation from a forecast provided to the Lenders, a certificate of an
Authorized Signatory explaining the deviation and the action, if any, that has
been taken or is proposed to be taken with respect thereto; in each case the
foregoing forecasts shall state all underlying assumptions.
7.2 CERTIFICATES; OTHER INFORMATION.
Furnish to the Administrative Agent and each Lender:
(a) Prompt written notice if: (i) any Indebtedness
of the Borrower or any Subsidiary is declared or shall become due and payable
prior to its stated maturity, or called and not paid when due, (ii) a default
shall have occurred under any note (other than the Notes) or the holder of any
such note, or other evidence of Indebtedness, certificate or security evidencing
any such Indebtedness or any obligee with respect to any other Indebtedness of
the Borrower or any Subsidiary has the right to declare any such Indebtedness
due and payable prior to its stated maturity as a result of such default, or
(iii) there shall occur and be continuing a Default or an Event of Default;
(b) Prompt written notice of: (i) any citation,
summons, subpoena, order to show cause or other order naming the Borrower or any
Subsidiary a party to any proceeding before any Governmental Authority which
might have a Material Adverse Effect or which call into question the validity or
enforceability of any of the Loan Documents and include with such notice a copy
of such citation, summons, subpoena, order to show cause or other order, (ii)
the commencement or threat of any action, suit, arbitration proceeding or claim
by, on behalf of or against the Borrower or any Subsidiary, at law or in equity,
before any Governmental Authority, which could reasonably be expected to have a
Material Adverse Effect, (iii) any lapse or other termination of any material
license, permit, franchise or other authorization issued to the Borrower or any
Subsidiary by any Governmental Authority which could reasonably be expected to
have a Material Adverse Effect, (iv) any refusal by any Governmental Authority
to renew or extend any such material license, permit, franchise or other
authorization which could reasonably be expected to have a Material Adverse
Effect, and
-61-
(v) any dispute between the Borrower or any Subsidiary and any
Governmental Authority, which dispute might have a material adverse effect on
any Broadcasting Station or a Material Adverse Effect;
(c) Promptly upon becoming available, copies of all regular,
periodic or special reports, schedules and other material that the Borrower or
any Subsidiary may now or hereafter be required to file with or deliver to any
securities exchange or the Securities and Exchange Commission, or any other
Governmental Authority succeeding to the functions thereof;
(d) Prompt written notice in the event that (i) the Borrower
or any Commonly Controlled Entity shall receive notice from the Internal Revenue
Service or the Department of Labor that the Borrower or such Commonly Controlled
Entity shall have failed to meet the minimum funding requirements of Section 412
of the Code with respect to a Plan, if applicable, and include therewith a copy
of such notice, or (ii) the Borrower or any Commonly Controlled Entity gives or
is required to give notice to the PBGC of any Reportable Event with respect to a
Plan, or knows that the plan administrator of a Plan has given or is required to
give notice of any such Reportable Event;
(e) With respect to a Single Employer Plan of the Borrower or
any Commonly Controlled Entity, copies of any request for a waiver of the
funding standards or any extension of the amortization periods required by
Sections 303 and 304 of ERISA or Section 412 of the Code promptly after any such
request is submitted to the Department of Labor or the Internal Revenue Service,
as the case may be;
(f) Promptly after the filing thereof, a copy of the annual
report required to be filed pursuant to Section 103 of ERISA in connection with
each Single Employer Plan of the Borrower and each Commonly Controlled Entity
for each plan year, including (i) a statement of the assets and liabilities of
such Plan as of the end of such plan year and statements of changes in fund
balance and in financial position, or a statement of changes in net assets
available for plan benefits, for such plan year, certified by the Accountants
and (ii) an actuarial statement of such Plan applicable to such plan year,
certified by an enrolled actuary of recognized standing reasonably acceptable to
the Administrative Agent and the Required Lenders;
(g) Promptly upon request therefor, such other information and
reports relating to the past, present or future financial condition, operations,
plans and projections of the Borrower or its Subsidiaries as the Administrative
Agent or any other Lender (through the Administrative Agent) may at any time and
from time to time reasonably request;
-62-
(h) Promptly after the same are received by the Borrower,
copies of all management letters and similar reports provided to the Borrower or
any Subsidiary by its independent certified public accountants;
(i) Prompt written notice of any material change in the
accounting policies or financial reporting practices of the Borrower or any of
its Subsidiaries;
(j) the occurrence of any Equity Issuance resulting in Net
Equity Proceeds;
(k) Prompt written notice of the occurrence of a Material
Adverse Change or Change of Control or the occurrence of any event or facts or
circumstances which are reasonably likely to result in a Material Adverse Change
or Change of Control; and
(l) Prompt written notice of the termination of, or the
occurrence of any default under, the KALC Purchase Agreement or the KALC LMA or
the occurrence of any other event or circumstance which could reasonably be
expected to have a materially adverse effect on the consummation of the KALC
Sale in accordance with the KALC Purchase Agreement or the effectiveness or
enforceability of the KALC Purchase Agreement or the KALC LMA.
7.3 LEGAL EXISTENCE.
Except as otherwise permitted by Sections 8.3 and 8.7,
maintain, and cause each Subsidiary to maintain, its corporate existence, and
maintain its good standing in the jurisdiction of its incorporation or
organization and in each other jurisdiction in which the failure so to do could
reasonably be expected to have a Material Adverse Effect.
7.4 TAXES.
Pay and discharge when due, and cause each Subsidiary so to
do, all Taxes, assessments and governmental charges, license fees and levies
upon or with respect to the Borrower or such Subsidiary and upon the income,
profits and Property of the Borrower and the Subsidiaries taken as a whole,
which if unpaid, could reasonably be expected to have a Material Adverse Effect
or become a Lien on the Property of the Borrower or any Subsidiary not permitted
under Section 8.2, unless and to the extent only that such Taxes, assessments,
charges, license fees and levies shall be contested in good faith and by
appropriate proceedings diligently conducted by the Borrower or such Subsidiary
and PROVIDED that the Borrower shall give the Administrative Agent prompt
-63-
notice of such contest and that such reserve or other appropriate provision as
shall be required by the Accountants in accordance with GAAP shall have been
made therefor.
7.5 INSURANCE AND CONDEMNATION.
(a) LIABILITY INSURANCE. Maintain, and cause each Subsidiary
to maintain, insurance with financially sound insurance carriers on such of its
Property, against at least such risks, and in at least such amounts, as are
customarily insured against by similar businesses and which, in the case of
property insurance, shall be in amounts sufficient to prevent the Borrower or
any Subsidiary from becoming a co-insurer, including, without limitation, public
liability (bodily injury and property damage), fidelity, bonding and workers'
compensation with deductibles not exceeding $25,000 per occurrence, in each case
naming the Administrative Agent as an additional insured under such policies,
and file with the Administrative Agent within five days after request therefor a
detailed list of such insurance then in effect, stating the names of the
carriers thereof, the policy numbers, the insureds thereunder, the amounts of
insurance, dates of expiration thereof, and the Property and risks covered
thereby, together with a certificate of an Authorized Signatory certifying that
in the opinion of such officer such insurance is adequate in nature and amount,
complies with the obligations of the Borrower under this Section 7.5, and is in
full force and effect.
(b) PROPERTY INSURANCE. Maintain such property and other
insurance as is customarily maintained by companies engaged in similar
businesses with deductibles not exceeding $25,000 per occurrence. Promptly upon
request therefor, the Borrower shall deliver or cause to be delivered to the
Administrative Agent originals or duplicate originals of all such policies of
insurance. All such property insurance shall name the Administrative Agent,
under a standard loss payable clause, as sole loss payee in respect of each
claim resulting in a payment under any such insurance policy exceeding $500,000
and shall contain such endorsements as the Administrative Agent shall require.
Provided that no Default or Event of Default shall exist, the Administrative
Agent agrees, promptly upon its receipt thereof, to pay over to the Borrower the
proceeds of any such payment received by the Administrative Agent in its
capacity as Administrative Agent hereunder. The RC Commitments shall be reduced
by an amount equal to any such insurance proceeds not used by the Borrower or
any of its Subsidiaries within one year to repair or replace any Property in
respect of which it received property insurance proceeds. If a Default or Event
of Default shall exist, the Borrower, at the request of the Administrative
Agent, shall prepay the Loans with the unused portion of such proceeds in an
amount equal to the total amount of such insurance payment and the RC
Commitments shall simultaneously be reduced by an amount equal to such
prepayment.
(c) CONDEMNATION AWARDS. If a Default or Event of Default
shall exist and the Borrower or any of its Subsidiaries shall receive the
proceeds of any condemnation or similar awards, the Borrower shall pay over the
proceeds thereof to the
-64-
Administrative Agent and, at the election of the Administrative Agent, such
proceeds shall be applied to the prepayment of the Loans in an amount equal to
the total amount of such proceeds. The RC Commitments shall be reduced by an
amount equal to any such proceeds not used by the Borrower or any of its
Subsidiaries within one year to repair or replace any Property in respect of
which it received a condemnation or similar award.
7.6 PAYMENT OF INDEBTEDNESS AND PERFORMANCE OF OBLIGATIONS.
Pay and discharge, and cause each Subsidiary to pay and
discharge, when due all lawful Indebtedness, obligations and claims for labor,
materials and supplies or otherwise which, if unpaid, might (i) have a Material
Adverse Effect, or (ii) become a Lien upon Property of the Borrower or any
Subsidiary not permitted under Section 8.2, unless and to the extent only that
the validity of such Indebtedness (other than Indebtedness under the Loan
Documents), obligation or claim shall be contested in good faith and by
appropriate proceedings diligently conducted by the Borrower or such Subsidiary,
and that any such contested Indebtedness, obligations or claims shall not
constitute, or create, a Lien on any Property of the Borrower or any Subsidiary
not permitted under Section 8.2 senior to the Lien granted to the Administrative
Agent by the Collateral Documents on such Property, and further PROVIDED that
the Borrower shall give the Administrative Agent and the Lenders prompt notice
of any such material contest and that such reserve or other appropriate
provision as shall be required by the Accountants in accordance with GAAP shall
have been made therefor.
7.7 CONDITION OF PROPERTY.
At all times, maintain, protect and keep in good repair,
working order and condition (ordinary wear and tear excepted), and cause each
Subsidiary so to do, all Property necessary to the operation of the Borrower's
or such Subsidiary's business.
7.8 OBSERVANCE OF LEGAL REQUIREMENTS; ERISA; ENVIRONMENTAL LAWS.
Observe and comply in all respects, and cause each Subsidiary
so to do, with all laws (including ERISA and Environmental Laws), ordinances,
orders, judgments, rules, regulations, certifications, franchises, permits,
licenses, directions and requirements of all Governmental Authorities, which now
or at any time hereafter may be applicable to the Borrower or such Subsidiary, a
violation of which could reasonably be expected to have a Material Adverse
Effect, except such thereof as shall be contested in good faith and by
appropriate proceedings diligently conducted by the Borrower or such Subsidiary,
and PROVIDED that the Borrower shall give the Administrative Agent and the
Lenders prompt notice of such contest and that such reserve or other appropriate
provision as shall be required by the Accountants in accordance with GAAP shall
have been made therefor.
-65-
7.9 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
Keep proper books of record and account in which full, true
and correct entries in conformity with GAAP and all requirements of law shall be
made of all dealings and transactions in relation to its business and
activities; and permit representatives of the Administrative Agent and each
Lender, or potential assignees and/or participants of the Administrative Agent
or any Lender, to visit the offices of the Borrower and the Subsidiaries on
reasonable advance notice, to inspect any of its Property and examine and make
copies or abstracts from any of its books and records at any reasonable time and
as often as may reasonably be desired, and to discuss the business, operations,
prospects, licenses, Property and financial condition of the Borrower and the
Subsidiaries with the officers thereof and with the Accountants.
7.10 FCC LICENSES, ETC.
Maintain and cause each Subsidiary to maintain, in full force
and effect, each main station license issued by the FCC to it for each
Broadcasting Station. The Borrower shall also maintain and cause each Subsidiary
to maintain, in full force and effect, all other material licenses (including,
without limitation, all material auxiliary licenses issued by the FCC),
copyrights, patents, including all licenses, permits, applications, reports,
authorizations and other rights as are necessary for the conduct of its
business, except to the extent that such ownership or right to use shall
terminate as a matter of law or expire as a matter of contractual right through
no action or default by the Borrower or any Subsidiary.
7.11 SUBSIDIARY GUARANTY.
Promptly upon the creation or acquisition of any Subsidiary,
cause such Subsidiary to execute and deliver to the Administrative Agent a
supplement to the Subsidiary Guaranty in the form attached thereto, together
with such other documents and opinions of counsel as the Administrative Agent
shall reasonably required in connection therewith.
7.12 MORTGAGES.
(a) No later than 180 days after the Second Restatement Date,
execute and deliver to the Administrative Agent, or cause to be executed and
delivered to the Administrative Agent, a Mortgage in form and substance
satisfactory to the Administrative Agent with respect to the network operations
center located in Dallas, Texas, together with such UCC financing statements,
surveys, title insurance policies, environmental reports, opinions and other
documents as the Administrative Agent shall reasonably request in connection
therewith.
-66-
(b) Promptly upon the acquisition by the Borrower or any
Subsidiary of any real property on or after the Second Restatement Date having a
fair market value at the time of acquisition of (i) $2,000,000 or more or (ii)
$1,000,000 or more (but less than $2,000,000) if in the case of this clause (ii)
the aggregate fair market value at the time of acquisition of all such real
property acquired by the Borrower and its Subsidiaries on or after the Second
Restatement Date in respect of which no Mortgage has been executed and delivered
to the Administrative Agent pursuant to this Section 7.12 shall exceed
$5,000,000, execute and deliver, and cause each Subsidiary so to do, a Mortgage
with respect to such real property in form and substance satisfactory to the
Administrative Agent, together with such UCC financing statements, surveys,
title insurance policies, environmental reports, opinions and other documents as
the Administrative Agent shall reasonably request in connection therewith.
7.13 GOOD STANDING.
No later than 30 days after the Second Restatement Date,
deliver or cause to be delivered to the Administrative Agent with respect to
each Loan Party set forth on Schedule 4.2 as not being in good standing in a
specified jurisdiction on the Second Restatement Date, a certificate of good
standing of the Secretary of State of each such jurisdiction.
8. NEGATIVE COVENANTS
The Borrower covenants and agrees that on and after the Original
Effective Date and until all obligations of the Borrower under Notes and the
other Loan Documents have been paid in full and all RC Commitments have been
terminated and no obligations of the Administrative Agent, the Issuing Bank or
any of the Lenders exist under any of the Loan Documents, the Borrower shall
not:
8.1 BORROWING.
Create, incur, assume or suffer to exist any liability for
Indebtedness, or permit any Subsidiary so to do, except: (i) Indebtedness under
the Loan Documents; (ii) Indebtedness (including Contingent Obligations) of the
Borrower and its Subsidiaries existing on the date hereof as set forth in
Schedule 8.1 and other Indebtedness of the Borrower in an aggregate outstanding
principal amount for all such Indebtedness under this clause (ii) not in excess
of $25,000,000; (iii) Indebtedness of the Borrower and its Subsidiaries
evidenced by the Subordinated Indenture Notes and Subordinated Indenture
Subsidiary Guaranty; (iv) intercompany Indebtedness between the Borrower and its
Subsidiaries, PROVIDED, however, in the case of intercompany Indebtedness of the
Other Media Subsidiaries, such intercompany Indebtedness is permitted by Section
8.5(h); (v) intercompany Indebtedness of the Borrower to the Parent, PROVIDED
that such
-67-
intercompany Indebtedness is permitted under the Parent Guaranty; and (vi)
refinancings of any Indebtedness permitted under clause (ii) above with other
Indebtedness permitted under clause (i) or (ii) above.
8.2 LIENS.
Create, incur, assume or suffer to exist, or enter into any
agreement with any third Person agreeing not to create, incur, assume or suffer
to exist, any Lien upon any of its Property, whether now owned or hereafter
acquired, or permit any Subsidiary so to do, except: (i) Liens for Taxes,
assessments or similar charges incurred in the ordinary course of business which
are not delinquent or which are being contested in accordance with Section 7.4,
PROVIDED that such Liens are not senior (except to the extent provided by law)
to the Liens granted to the Administrative Agent and the Lenders by the
Collateral Documents, (ii) Liens in connection with workers' compensation,
unemployment insurance or other social security obligations (but not ERISA),
(iii) deposits or pledges to secure bids, tenders, contracts (other than
contracts for the payment of money), leases, statutory obligations, surety and
appeal bonds and other obligations of like nature arising in the ordinary course
of business, (iv) zoning ordinances, easements and other similar restrictions
affecting real property which could not reasonably be expected to have a
Material Adverse Effect, (v) the Liens created under the Collateral Documents,
(vi) statutory Liens arising by operation of law such as mechanics' liens
incurred in the ordinary course of business which are not delinquent or which
are being contested in accordance with Section 7.4, (vii) Liens arising out of
judgments or decrees which are being contested in accordance with Section 7.4,
PROVIDED that such Liens are subordinate to the Liens granted to the
Administrative Agent and the Lenders by the Collateral Documents and PROVIDED
further that enforcement of such Liens is stayed during such contest, (viii)
Liens on Property of the Borrower and the Subsidiaries existing on the date
hereof as set forth in Schedule 8.2, (ix) Liens in connection with the making of
deposits in accordance with Section 8.5(e) and (x) Liens in connection with
Indebtedness permitted under Section 8.1(ii), PROVIDED that such Liens extend
only to the Property acquired with such Indebtedness.
8.3 MERGER OR ACQUISITION OF PROPERTY.
Consolidate with, be acquired by, or merge into or with any
Person, or acquire all or substantially all of the Stock or Property of any
Person, or permit any Subsidiary so to do, except:
(a) any wholly-owned Subsidiary may merge with the Borrower
(with the Borrower as survivor) or with another wholly-owned Subsidiary;
(b) [Intentionally Omitted];
-68-
(c) PROVIDED that immediately before and after giving effect
thereto, all representations and warranties contained in the Loan Documents
shall be true and correct and no Default or Event of Default shall exist:
(i) [Intentionally Omitted],
(ii) the Borrower or any wholly-owned Subsidiary may
consummate those transactions which are listed on Schedule 8.3(c) (collectively,
the "DESIGNATED TRANSACTIONS"), and
(iii) the Borrower may acquire all of the issued and
outstanding Stock of Acquisition Corp. and any intercompany Indebtedness of
Acquisition Corp. held by the Parent pursuant to the Dropdown (as defined in the
Parent Guaranty);
(d) on and after the date on which the KALC RC Loans shall
have been paid in full, upon 30 days' notice to the Administrative Agent, the
Borrower or any wholly-owned Subsidiary may make other acquisitions, including
through a merger (with the Borrower or such wholly-owned Subsidiary (or a Person
that becomes a wholly-owned Subsidiary) as the survivor thereof), PROVIDED that
(i) if immediately before or after giving effect to any such acquisition or
merger the Total Leverage Ratio exceeds 5.50:1.00 (in such case, a "LEVERAGED
ACQUISITION"), the aggregate gross consideration (including capital expenditures
relating to such Leveraged Acquisition that are reasonably anticipated for the
12 month period following such Leveraged Acquisition) paid or payable for all
Leveraged Acquisitions (including the Leveraged Acquisition then being
contemplated) made during the period commencing on the Second Restatement Date
and ending through and including the date of the Leveraged Acquisition then
being contemplated shall not exceed $50,000,000, (ii) immediately before and
after giving effect to any such proposed acquisition or merger, all
representations and warranties contained in the Loan Documents shall be true and
correct and no Default or Event of Default shall exist, and (iii) the Borrower
shall have received with respect to each such acquisition or merger an order
from the FCC in respect of the acquisition or merger of a Broadcasting Station
(which FCC order need not have become a final order) and all other similar
material orders from all other applicable Governmental Authorities, with regard
to the acquisition or merger, authorizing the applicable transactions, if
required by applicable law, and the Administrative Agent shall have received
true, complete and correct copies, certified by an Authorized Signatory of the
Borrower, of all such orders;
(e) as permitted under Section 8.5; and
(f) the Common Ground Reorganization, PROVIDED that (i)
immediately before and after giving effect to the Common Ground Reorganization,
all representations and warranties contained in the Loan Documents shall be true
and correct and no Default or Event of Default shall exist, (ii) the Borrower
shall have received with
-69-
respect to the Common Ground Reorganization an order (subject to no pending
contest or administrative review) from the FCC (in respect of each affected
Broadcasting Station) and all other similar material orders from all other
applicable Governmental Authorities, with regard to the Common Ground
Reorganization, authorizing the applicable transactions, if required by
applicable law, and the Administrative Agent shall have received true, complete
and correct copies, certified by an Authorized Signatory of the Borrower, of all
such orders, (iii) the Common Ground Collateral Release shall not have occurred
more than five Business Days prior to the consummation of the Common Ground
Reorganization, (iv) within five Business Days after the consummation of the
Common Ground Reorganization, (A) Common Ground Broadcasting, Inc. and each
Subsidiary that receives transferred assets and that is not then a party to the
Subsidiary Guaranty shall become a party to the Subsidiary Guaranty, and (B) the
Borrower and each Subsidiary that receives transferred assets shall grant a
security interest pursuant to the Borrower Security Agreement or the Subsidiary
Guaranty in and to all of the assets transferred to it, all in the manner
required by this Section 8.3, and (v) the Common Ground Reorganization shall be
consummated no later than 90 days following the Second Restatement Date.
If the aggregate gross consideration for any such acquisition
or merger permitted by Section 8.3(d) (including capital expenditures relating
to such acquisition or merger that are reasonably anticipated for the 12 month
period following such acquisition or merger) exceeds $10,000,000, (i) the
Borrower shall have delivered to the Administrative Agent and each Lender such
details of such transaction as the Administrative Agent or any Lender (through
the Administrative Agent) shall reasonably request, and (ii) the Borrower shall
have delivered to the Administrative Agent a certificate of an Authorized
Signatory of the Borrower certifying that (A) the Borrower is in pro-forma
compliance with the terms, covenants, provisions, and conditions of this
Agreement, including, without limitation, Sections 6.1, 6.2, 6.3, 6.4 and 6.5
(and attaching calculations with respect to Sections 6.1, 6.2, 6.3, 6.4 and
6.5), and (B) immediately before and after giving effect to any such acquisition
or merger, all representations and warranties contained in the Loan Documents
are true and correct and no Default or Event of Default exists.
If the aggregate gross consideration for any such acquisition
or merger permitted by Section 8.3(d) (including capital expenditures relating
to such acquisition or merger that are reasonably anticipated for the 12 month
period following such acquisition or merger) exceeds $20,000,000, the Borrower
shall have delivered to the Administrative Agent and each Lender an independent
appraisal of each Property to be acquired, such appraisal to be in all respects
satisfactory to the Administrative Agent.
Immediately upon the consummation of any acquisition or merger
permitted under Sections 8.3(c) or 8.3(d), (i) the Borrower shall have delivered
to the Administrative Agent such UCC financing statements and other documents as
the
-70-
Administrative Agent shall reasonably require in order to grant to the
Administrative Agent a first priority perfected security interest in the
Property acquired under and pursuant to the Collateral Documents, subject to no
Liens other than Permitted Liens, (ii) if the Borrower shall have created or
acquired a Subsidiary in connection with such acquisition, such Subsidiary shall
have become a party to the Subsidiary Guaranty and (iii) the Borrower shall have
delivered to the Administrative Agent such opinions and other documents as the
Administrative Agent shall reasonably require in connection therewith.
8.4 RESTRICTED PAYMENTS.
Declare or make any Restricted Payment, or permit any of the
Subsidiaries so to do, except as follows:
(a) any wholly-owned Subsidiary may declare and make
Restricted Payments to its parent from time to time;
(b) the Borrower and its Subsidiaries may make Restricted
Payments to the Parent for the purpose of enabling the Parent, as a consolidated
taxpayer, to pay Taxes pursuant to the terms set forth in the Tax Sharing
Agreement to the extent required thereby;
(c) the Borrower and its Subsidiaries may pay Management Fees
to the Parent in any fiscal year (in an aggregate amount not exceeding 1% of the
net revenue of Borrower and its Subsidiaries for the immediately preceding
fiscal year), in accordance with the terms set forth in the Management
Agreement, for services rendered to the Borrower or any of its Subsidiaries,
PROVIDED that (i) no Default or Event of Default has occurred or is continuing
(PROVIDED that during the continuance of a Default or an Event of Default, the
Management Fee may be accrued, but not paid) and (ii) any such Management Fee
accrued or paid shall be treated as an operating expense and deducted from the
calculation of Operating Cash Flow of the Borrower;
(d) PROVIDED that immediately before and after giving effect
to such declaration or payment no Default or Event of Default shall exist, the
Borrower may declare and pay Restricted Payments to the Parent in an aggregate
amount equal to the excess (if any) of (i) if the Total Leverage Ratio based on
the most recently delivered financial statements pursuant to Section 7.1(a)(ii)
or 7.1(c)(ii), as applicable, is (x) greater than 5.00:1.00, $5,000,000, and (y)
less than 5.00:1.00, $10,000,000 MINUS (ii) the sum of (x) Restricted Payments
made on or after the Second Restatement Date under this subsection (d) PLUS (y)
the amount of the purchase price paid by the Borrower or any of its Subsidiaries
in connection with the transactions described in Section 8.3(c)(iii) over the
amount permitted to be paid therefor pursuant to clause (B) thereof (without
regard to the second proviso of such subsection); and
-71-
(e) in addition to any Restricted Payments permitted in
subsection (d) above, the Borrower may declare and pay the KALC Borrower
Dividend, provided that (i) KALC HSR Clearance has been obtained, (ii) the
parties to the KALC Purchase Agreement have filed appropriate requests for all
approvals from all applicable Governmental Authorities, including the FCC, that
are required as a condition to the consummation of the KALC Sale and the
effectiveness of the KALC LMA, and (iii) the KALC Purchase Agreement and the
KALC LMA shall be in full force and effect.
8.5 INVESTMENTS, LOANS, ETC.
At any time, purchase or otherwise acquire, hold or invest in
the Stock of, or any other interest in, any Person, or make any loan or advance
(excluding deposits or pledges permitted under Section 8.2(iii)) to, or enter
into any arrangement for the purpose of providing funds or credit to, or make
any other investment, whether by way of capital contribution or otherwise, in or
with any Person (all of which are sometimes referred to herein as
"INVESTMENTS"), or permit any Subsidiary so to do, except:
(a) Investments in short-term domestic and eurodollar
certificates of deposit issued by any Lender, or any other commercial bank,
trust company or national banking association incorporated under the laws of the
United States or any State thereof and having undivided capital surplus and
retained earnings exceeding $500,000,000;
(b) Investments in short-term direct obligations of
the United States of America or agencies thereof which obligations are
guaranteed by the United States of America;
(c) Investments existing on the date hereof as set
forth in Schedule 8.5(c);
(d) Investments to the extent the same are
acquisitions permitted pursuant to Section 8.3;
(e) Investments by the Borrower in the form of
deposits or options made in the ordinary course of business in connection with
any proposed acquisition or acquisitions of Property permitted pursuant to the
terms of this Agreement;
(f) loans and advances to employees for travel and
relocation purposes; and
(g) loans and advances to employees for other valid
business purposes that do not exceed $100,000 in the aggregate at any one time
outstanding;
-72-
(h) intercompany Indebtedness permitted pursuant to
Section 8.1(iv) and capital contributions made by the Borrower or any Subsidiary
in any wholly-owned Subsidiary, PROVIDED that (i) the aggregate amount of the
intercompany loans made to, and capital contributions made in, the Other Media
Subsidiaries shall not exceed in the aggregate $10,000,000 in any fiscal year
and $25,000,000 from the Second Restatement Date through the Maturity Date and
(ii) all representations and warranties contained in the Loan Documents shall be
true and correct and no Default or Event of Default shall exist immediately
before and after giving effect to any such intercompany loan or capital
contribution;
(i) commercial paper or other short term obligations
of any corporation organized under the laws of the United States or any State
thereof whose ratings, at the time of the investment or contractual commitment
to invest therein, from each of Xxxxx'x and S & P are the highest investment
category granted thereby;
(j) investments in money market funds having a rating
from each of Xxxxx'x and S & P in the highest investment category granted
thereby;
(k) bankers acceptances issued by any commercial
bank, trust company or national banking association referred to in subsection
(a) above;
(l) repurchase obligations with respect to any
security that is a direct obligation of, or fully guaranteed by, the United
States or any agency or instrumentality thereof the obligations of which are
backed by the full faith and credit of the United States, in either case entered
into with a commercial bank, trust company or national banking association
(acting as principal) referred to in subsection (a) above;
(m) repurchase obligations with respect to any
security or whole loan entered into with (i) a commercial bank, trust company or
national banking association (acting as principal) described in subsection (a)
above, (ii) a broker/dealer (acting as principal) registered as a broker or
dealer under Section 15 of the Exchange Act the unsecured short-term debt
obligations of which are rated P-1 by Xxxxx'x and at least A-1 by S & P at the
time of entering into such repurchase obligation, (iii) an unrated
broker/dealer, acting as principal, that is a wholly-owned Subsidiary of a
non-bank or bank holding company the unsecured short-term debt obligations of
which are rated P-1 by Xxxxx'x and at least A-1 by S & P at the time of
purchase;
(n) promissory notes received in connection with a
sale, exchange or other disposition of Property permitted by Section 8.7 to the
extent that the receipt of such promissory notes is permitted by Section 8.7(d);
(o) other Investments (including partnerships, joint
ventures and joint operating arrangements), PROVIDED that (i) the aggregate
amount of all such
-73-
other Investments shall not exceed in the aggregate $5,000,000 at any time, and
(ii) immediately before and after giving effect to each such Investment no
Default or Event of Default shall or would exist; and
(p) the KALC Intercompany Loan, provided that (i)
KALC HSR Clearance has been obtained, (ii) the parties to the KALC Purchase
Agreement have filed appropriate requests for all approvals from all applicable
Governmental Authorities, including the FCC, that are required as a condition to
the consummation of the KALC Sale and the effectiveness of the KALC LMA, and
(iii) the KALC Purchase Agreement and the KALC LMA shall be in full force and
effect.
8.6 BUSINESS CHANGES.
Engage in any material line of business substantially
different from those lines of business carried on as of the Second Restatement
Date, or permit any Subsidiary so to do.
8.7 SALE OF PROPERTY.
Sell, exchange, lease, transfer or otherwise dispose of any
Property to any Person, or permit any Subsidiary so to do, except as permitted
in connection with the Common Ground Reorganization pursuant to the terms and
conditions of Section 8.3 and except for:
(a) sales, exchanges, leases, transfers or other dispositions
made in the ordinary course of business (which shall not include the sale or
other disposition of all or substantially all of the Stock or assets of any
Broadcasting Station or any other existing business of the Borrower or any
Subsidiary as of the Second Restatement Date (including, without limitation,
magazine, Internet and software businesses) or involve an FCC license of the
Borrower or any of its Subsidiaries);
(b) [Intentionally Omitted];
(c) PROVIDED that immediately before and after giving effect
thereto, all representations and warranties contained in the Loan Documents
shall be true and correct and no Default or Event of Default shall exist, the
Borrower or any wholly-owned Subsidiary may consummate the Houston Transaction
and the Designated Transactions;
(d) subject to the second to the last paragraph of this
Section 8.7, the Borrower or any Subsidiary may sell or exchange any Property
for its fair market value, PROVIDED that (i) the aggregate gross consideration
to be received for all Property that has been sold or exchanged pursuant to the
provisions of this Section 8.7(d) during the one year period ending on the date
of the proposed sale or exchange (including the Property then being contemplated
to be sold or exchanged) shall not exceed $30,000,000, (ii) the
-74-
aggregate gross consideration to be received for all Property that has been sold
or exchanged pursuant to the provisions of this Section 8.7(d) during the period
commencing on the Second Restatement Date and ending through and including the
date of the proposed sale or exchange (including the Property then being
contemplated to be sold or exchanged) shall not exceed $60,000,000, (iii) at
least 75% of the consideration to be in respect of each sale or exchange shall
be paid in cash, cash equivalents or like-kind assets, PROVIDED that
notwithstanding such 75% limitation, the Borrower and its Subsidiaries may
receive consideration in respect of sales or exchanges permitted hereunder in
the form of promissory notes of the purchaser not in excess of $5,000,000 in the
aggregate at any time outstanding for all such sales and exchanges, and (iv)
immediately before and after giving effect to the proposed sale or exchange
(including any related change in Indebtedness), all representations and
warranties contained in the Loan Documents shall be true and correct and no
Default or Event of Default shall exist; and
(e) Acquisition Corp. may consummate the KALC Sale in
accordance with the terms of the KALC Purchase Agreement, provided that the
Borrower shall immediately prepay the then outstanding balance of the KALC RC
Loans upon receipt of the proceeds of the KALC Sale in accordance with Section
2.5.
If the aggregate gross consideration for any such sale or
exchange permitted under Section 8.7(d) exceeds $10,000,000, (i) the Borrower
shall have delivered to the Administrative Agent and each Lender such details of
such transaction as the Administrative Agent or any Lender (through the
Administrative Agent) shall reasonably request, and (ii) the Borrower shall have
delivered to the Administrative Agent a certificate of an Authorized Signatory
of the Borrower certifying that (A) the Borrower is in pro-forma compliance with
the terms, covenants, provisions, and conditions of this Agreement, including,
without limitation, Sections 6.1, 6.2, 6.3, 6.4 and 6.5 (and attaching
calculations with respect to Sections 6.1, 6.2, 6.3, 6.4 and 6.5), and (B)
immediately before and after giving effect to any such sale or exchange
(including any related change in Indebtedness), all representations and
warranties contained in the Loan Documents are true and correct and no Default
or Event of Default exists. In connection with any such sale or exchange
permitted under Section 8.7(d), (i) the Borrower shall have received fair value
for the Property sold or exchanged and (ii) at least 75% of the consideration to
be received in connection with any such sale shall be in any combination of
like-kind property, cash or cash equivalents.
Upon the sale or disposal of the entire assets of any
Subsidiary as provided in this Section 8.7, the Borrower may liquidate such
Subsidiary upon reasonable prior notice to the Administrative Agent.
-75-
8.8 CREATION OF SUBSIDIARIES.
Create any other Subsidiary, or permit any Subsidiary so to
do, except the Borrower or any Subsidiary may create a wholly-owned Subsidiary,
PROVIDED that (i) immediately before and after giving effect to any such
proposed creation, all representations and warranties contained in the Loan
Documents shall be true and correct and no Default or Event of Default shall
exist; (ii) the Borrower shall have delivered to the Administrative Agent such
UCC financing statements and other documents as the Administrative Agent shall
reasonably require in order to grant to the Administrative Agent a first
priority perfected security interest in the Stock and/or Property, as
applicable, of such Subsidiary under and pursuant to the Collateral Documents,
subject to no Liens other than Permitted Liens; (iii) the Subsidiary shall
become a party to the Subsidiary Guaranty and (iv) the Borrower shall have
delivered to the Administrative Agent such opinions and other documents as the
Administrative Agent shall reasonably require in connection therewith.
8.9 COMPLIANCE WITH ERISA.
Adopt any Plan other than those listed in Schedule 4.14 or
permit any Subsidiary so to do, or engage in any "prohibited transaction", as
such term is defined in Section 4975 of the Code or Section 406 of ERISA, with
respect to any Plan, or incur any "accumulated funding deficiency", as such term
is defined in Section 412 of the Code or Section 302 of ERISA, or terminate, or
permit any Commonly Controlled Entity to terminate, any Plan that would result
in any liability of the Borrower or any Commonly Controlled Entity to the PBGC,
or permit the occurrence of any Reportable Event or any other event or condition
that presents a risk of such a termination by the PBGC of any Plan, or withdraw
or effect a partial withdrawal from a Multiemployer Plan, or permit any Commonly
Controlled Entity which is an employer under such a Multiemployer Plan so to do,
if any such withdrawal would result in such withdrawing employer incurring any
withdrawal liability in excess of $250,000.
8.10 CERTIFICATE OF INCORPORATION AND BY-LAWS; CERTAIN AGREEMENTS.
Amend or otherwise modify (i) its certificate of
incorporation, bylaws or other organizational documents, or permit any
Subsidiary so to do, in any way that would adversely affect the interests of the
Lenders or the Issuing Bank or the obligations of any Loan Party under any of
the Loan Documents, (ii) the Tax Sharing Agreement, (iii) the Management
Agreement or (iv) the Initial Transaction Documents.
8.11 PREPAYMENTS OF INDEBTEDNESS.
Prepay or obligate itself to prepay, in whole or in part, any
Indebtedness (other than the Loans) prior to the due date thereof, or permit any
Subsidiary so to do,
-76-
other than (i) the prepayment by any Subsidiary of Indebtedness owing by such
Subsidiary to the Borrower, (ii) the prepayment of Indebtedness permitted under
Section 8.1(ii) with the proceeds of other Indebtedness permitted under Section
8.1(i) or (ii) or with the proceeds of Stock issued by the Borrower pursuant to
Section 8.16, (iii) PROVIDED that no Default or Event of Default shall then
exist, the prepayment by the Borrower of Indebtedness incurred by the Borrower
in the ordinary course of its business to any Subsidiary, and (iv) as permitted
by Section 8.17.
8.12 ACCOUNTING PRACTICE; FISCAL YEAR.
Make any significant change in accounting treatment or
reporting practices, except as required by GAAP, or change its fiscal year from
a fiscal year commencing January 1st and ending December 31st, or permit any of
its Subsidiaries so to do; PROVIDED that any Subsidiary may change to a fiscal
year commencing January 1st and ending December 31st.
8.13 LIMITATION ON UPSTREAM TRANSFERS.
Permit or cause any of its Subsidiaries to enter into or
agree, or otherwise be or become subject, to any agreement, contract or other
arrangement (other than this Agreement) with any Person pursuant to the terms of
which (a) such Subsidiary is or would be prohibited from making any advances to
the Borrower or declaring or paying any cash dividends on any class of its Stock
owned directly or indirectly by the Borrower or any of the other Subsidiaries or
from making any other distribution on account of any class of any such Stock
(herein referred to as "UPSTREAM TRANSFERS"), or (b) the declaration or payment
of Upstream Transfers on an annual or cumulative basis is or would be otherwise
limited or restricted, PROVIDED that the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, PROVIDED that such restrictions and conditions
apply only to the Subsidiary that is to be sold and such sale is permitted
hereunder.
8.14 TRANSACTIONS WITH AFFILIATES.
Except for the Management Agreement and the Tax Sharing
Agreement, become, or permit any Subsidiary to become, a party to any
transaction with any Affiliate of the Borrower or any Subsidiary (other than a
transaction solely between any wholly-owned Subsidiary and either the Borrower
or any other wholly-owned Subsidiary) on a basis less favorable to the Borrower
or such Subsidiary in any material respect than if such transaction were not
with an Affiliate of the Borrower or such Subsidiary.
-77-
8.15 SALE AND LEASEBACK.
Enter into any arrangement with any Person, or permit any
Subsidiary so to do, providing for the leasing by the Borrower or such
Subsidiary of Property which has been or is to be sold or transferred by the
Borrower or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such Property
or rental obligations of the Borrower or such Subsidiary.
8.16 STOCK ISSUANCE.
Issue any additional shares of Stock, or permit any of its
Subsidiaries so to do, except (i) the Borrower may issue shares of its Class A
common Stock and (ii) any Subsidiary may issue shares of its Stock to the
Borrower or any wholly-owned Subsidiary.
8.17 SUBORDINATED INDENTURE.
Enter into or agree to any amendment, modification or waiver
of any term or condition of the Subordinated Indenture, the Subordinated
Indenture Notes or the Subordinated Indenture Subsidiary Guaranty, or purchase,
redeem or make any payment with respect to Indebtedness under the Subordinated
Indenture Notes or the Subordinated Indenture Subsidiary Guaranty, or permit any
of its Subsidiaries so to do, except the Borrower may make required payments to
the extent expressly permitted pursuant to the subordination terms set forth
therein.
8.18 FEDERAL RESERVE REGULATIONS.
Own, or permit any of its Subsidiaries to own, Margin Stock in
excess of 25% (or such greater or lesser percentage as is provided in the
exclusions from the definition of "Indirectly Secured" contained in Regulation U
in effect at the time of the making of each Loan or the issuance of each Letter
of Credit) of the value of the assets of (i) the Borrower, or (ii) the Borrower
and its Subsidiaries on a Consolidated basis.
8.19 CHANGE IN NAME, JURISDICTION OF ORGANIZATION; NATURE OF BUSINESS.
Change its legal name or the jurisdiction of its organization
or make any material change in the nature of its business, taken as a whole, as
conducted on the Second Restatement Date, or permit any of its Subsidiaries so
to do, except that any Subsidiary may change its name or the jurisdiction of its
organization PROVIDED that the Subsidiary (i) shall provide to the
Administrative Agent 30 days prior written notice of such name change, (ii) no
fewer than 10 days prior to the applicable change, shall have taken all steps
necessary or reasonably required by the Administrative Agent to maintain the
perfection of the Security Interest under the Subsidiary Guaranty and (iii)
shall deliver
-78-
to the Administrative Agent such certificates and other documents as the
Administrative Agent shall reasonably require.
8.20 LEASE OBLIGATIONS.
Create or suffer to exist any obligations for the payment of
rent by the Borrower or any Subsidiary for any Property under lease or agreement
to lease, or permit any of its Subsidiaries so to do, except for:
(a) leases in existence on the Second Restatement
Date and any renewal, extension or refinancing thereof;
(b) operating leases in the ordinary course of
business entered into or assumed after the Second Restatement Date; and
(c) capital leases other than those permitted under
clauses (a) and (b) of this Section, entered into after the Second Restatement
Date to finance the acquisition of equipment to the extent the Indebtedness
evidenced by such capital leases is permitted under Section 8.1.
8.21 KALC PURCHASE AGREEMENT AND KALC LMA
Enter into or agree to any amendment, modification or waiver
of any material term or condition of the KALC Purchase Agreement or the KALC LMA
(including, without limitation, any term or condition that would adversely
affect the amount or terms of payment of the Purchase Price or Liquidated
Damages Amount (as each such term is defined in the KALC Purchase Agreement) or
the amount or terms of payment of the Consideration (as defined in the KALC
LMA)), or permit any of its Subsidiaries so to do, without the consent of the
Administrative Agent. The Borrower shall provide the Administrative Agent with a
copy of each amendment, modification or waiver of any term or condition of the
KALC Purchase Agreement or the KALC LMA entered into by Acquisition Corp., the
Borrower or any of its Subsidiaries.
9. DEFAULT
9.1 EVENTS OF DEFAULT.
The following shall each constitute an "EVENT OF DEFAULT"
hereunder:
(a) The failure of the Borrower to pay any
installment of principal on any Note or any reimbursement payment in respect of
a Letter of Credit on the date when due and payable; or
-79-
(b) The failure of the Borrower to pay any
installment of interest or any other fees or expenses payable hereunder or under
or in connection with any other Loan Documents within three Business Days of the
date when due and payable; or
(c) The use by the Borrower of the proceeds of any
Loan or Letter of Credit in a manner inconsistent with or in violation of
Section 2.7; or
(d) The failure of the Borrower to observe or perform
any covenant or agreement contained in Section 6, Section 7.3, 7.5, 7.10, 7.11,
7.12(a), 7.13 or Section 8; or
(e) The failure of the Borrower to observe or perform
any other term, covenant, or agreement contained in this Agreement and such
failure shall have continued unremedied for a period of 30 days after the
Borrower shall have obtained knowledge thereof; or
(f) Any representation or warranty of any Loan Party
(or of any officer on its behalf) made in any Loan Document or in any
certificate, report, opinion (other than an opinion of counsel) or other
document delivered or to be delivered pursuant to any Loan Document, shall prove
to have been incorrect or misleading (whether because of misstatement or
omission) in any material respect when made; or
(g) Any obligation of the Parent or any of its
Subsidiaries (other than its obligations under the Loan Documents), whether as
principal, guarantor, surety or other obligor, for the payment or purchase of
any Indebtedness or operating lease(s) in excess of $500,000 in the aggregate,
(i) shall become or shall be declared to be due and payable prior to the
expressed maturity thereof, or (ii) shall not be paid or purchased when due or
within any grace period for the payment or purchase thereof, or (iii) the holder
of any such Indebtedness or obligation(s) in excess of $500,000 in the aggregate
shall have the right to declare such Indebtedness or obligation(s) due and
payable or require the purchase thereof prior to the expressed maturity thereof;
or
(h) The Parent or any of its Subsidiaries shall (i)
except as permitted by Sections 8.3 and 8.7, suspend or discontinue its
business, or (ii) make an assignment for the benefit of creditors, or (iii)
generally not be paying its debts as such debts become due, or (iv) admit in
writing its inability to pay its debts as they become due, or (v) file a
voluntary petition in bankruptcy, or (vi) become insolvent (however such
insolvency shall be evidenced), or (vii) file any petition or answer seeking for
itself any reorganization, arrangement, composition, readjustment of debt,
liquidation or dissolution or similar relief under any present or future
statute, law or regulation of any jurisdiction, or (viii) petition or apply to
any tribunal for any receiver, custodian or any trustee for any substantial part
of its Property, or (ix) be the subject of any such proceeding filed against
-80-
it which remains undismissed for a period of 60 days, or (x) file any answer
admitting or not contesting the material allegations of any such petition filed
against it or of any order, judgment or decree approving such petition in any
such proceeding, or (xi) seek, approve, consent to, or acquiesce in any such
proceeding, or in the appointment of any trustee, receiver, custodian,
liquidator, or fiscal agent for it, or any substantial part of its Property, or
an order is entered appointing any such trustee, receiver, custodian, liquidator
or fiscal agent and such order remains in effect for 60 days, or (xii) except as
permitted by Sections 8.3 and 8.7, take any formal action for the purpose of
effecting any of the foregoing or looking to the liquidation or dissolution of
the Parent or such Subsidiary; or
(i) An order for relief is entered under the United
States bankruptcy laws or any other decree or order is entered by a court having
jurisdiction (i) adjudging the Parent or any of its Subsidiaries a bankrupt or
insolvent, or (ii) approving as properly filed a petition seeking
reorganization, liquidation, arrangement, adjustment or composition of or in
respect of the Parent or any of its Subsidiaries under the United States
bankruptcy laws or any other applicable Federal or state law, or (iii)
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
(or other similar official) of the Parent or any of its Subsidiaries or of any
substantial part of the Property thereof, or (iv) ordering the winding up or
liquidation of the affairs of the Parent or any of its Subsidiaries, and any
such decree or order continues unstayed and in effect for a period of 60 days;
or
(j) Any judgments or decrees against the Parent or
any of its Subsidiaries (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage) aggregating in
excess of $500,000 for all such parties shall remain unpaid, unstayed on appeal,
undischarged, unbonded or undismissed for a period of 30 days; or
(k) The occurrence of an Event of Default under and
as defined in any Collateral Document or any Reimbursement Agreement; or
(l) Any of the Loan Documents shall cease, for any
reason, to be in full force and effect other than in accordance with its terms,
or any Loan Party shall so assert in writing or shall disavow its obligations
thereunder; or
(m) The FCC or any other Governmental Authority
revokes or fails to renew any license, permit or franchise of the Parent or any
of its Subsidiaries, or the Parent or any of its Subsidiaries for any reason
loses any license, permit or franchise, or the Parent or any of its Subsidiaries
suffers the imposition of any restraining order, escrow, suspension or impound
of funds in connection with any proceeding (judicial or administrative) with
respect to any license, permit or franchise, to the extent such revocation,
failure to renew, loss or imposition (i) pertains to the main broadcasting
-81-
license of any Broadcasting Station operated by the Borrower or any of its
Subsidiaries or (ii) is reasonably likely to have a Material Adverse Effect; or
(n) The occurrence of a Material Adverse Change; or
(o) A Change of Control shall occur.
Upon the occurrence of an Event of Default or at any time thereafter
during the continuance thereof, (a) if such event is an Event of Default
specified in clauses (h) or (i) above, the RC Commitments and the Letter of
Credit Commitment shall immediately and automatically terminate and the Loans,
all accrued and unpaid interest thereon and all other amounts owing under the
Loan Documents shall immediately become due and payable, and the Administrative
Agent may, and upon the direction of the Required Lenders shall, exercise any
and all remedies and other rights provided pursuant to the Loan Documents and
(b) if such event is any other Event of Default, any or all of the following
actions may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, and upon the direction of the Required Lenders shall,
by notice to the Borrower, declare the RC Commitments and the Letter of Credit
Commitment to be terminated whereupon the RC Commitments and the Letter of
Credit Commitment shall immediately terminate, and (ii) with the consent of the
Required Lenders, the Administrative Agent may, and upon the direction of the
Required Lenders shall, by notice of default to the Borrower, declare the Loans,
all accrued and unpaid interest thereon and all other amounts owing under the
Loan Documents to be due and payable forthwith, whereupon the same shall
immediately become due and payable, and the Administrative Agent may, and upon
the direction of the Required Lenders shall, exercise any and all remedies and
other rights provided pursuant to the Loan Documents. Except as otherwise
provided in this Section 9.1, presentment, demand, protest and all other notices
of any kind are hereby expressly waived to the extent permitted by applicable
law. The Borrower hereby further expressly waives and covenants not to assert
any appraisement, valuation, stay, extension, redemption or similar laws, to the
extent permitted by applicable law, now or at any time hereafter in force, which
might delay, prevent or otherwise impede the performance or enforcement of any
of the Loan Documents. In the event that the Administrative Agent shall fail or
refuse so to proceed, the Issuing Bank and each Lender shall be entitled to take
such action as the Required Lenders shall deem appropriate to enforce its rights
under the Loan Documents.
In the event that the RC Commitments or the Letter of Credit Commitment
shall have been terminated or all of the Notes shall have been declared due and
payable pursuant to the provisions of this Section 9.1, (i) the Borrower shall
forthwith deposit an amount equal to the Letter of Credit Exposure in a cash
collateral account with and under the sole dominion and control of the
Administrative Agent and (ii) the Lenders and the Issuing Bank agree, among
themselves, that any funds received in respect of the Loan Documents from or on
behalf of the Borrower by any of the Lenders or the Issuing Bank
-82-
(except funds received by any Lender or the Issuing Bank as a result of a
purchase pursuant to the provisions of Section 11.9) shall be remitted to the
Administrative Agent, and shall be applied by the Administrative Agent in
payment of the Loans, the Reimbursement Obligations and the obligations of the
Borrower under the Loan Documents in the following manner and order: (1) first,
to reimburse the Administrative Agent, the Issuing Bank and the Lenders for any
expenses due from the Borrower pursuant to the provisions of Section 11.5; (2)
second, to the payment of the Commitment Fee, and Letter of Credit Fee, pro rata
according to the RC Commitment Percentage of each Lender; (3) third, to the
payment of any other fees, expenses or amounts (other than the principal of and
interest on the Notes, the Reimbursement Obligations and any obligations to any
Lender (and any Affiliate of any Lender) arising out of any Interest Rate
Protection Arrangement) payable by the Borrower to the Administrative Agent, the
Issuing Bank or any of the Lenders under the Loan Documents; (4) fourth, to the
payment, pro rata according to the outstanding Loans of each Lender and
outstanding Reimbursement Obligations including any interest by a Lender
therein), of interest due thereon; (5) fifth, on a pro rata basis, to the
payment of (A) the principal outstanding on the Notes, pro rata according to
each Lender's outstanding Loans, (B) the principal outstandings on the
Reimbursement Obligations, pro rata according to the Issuing Bank's and each
other Lender's interest therein, and (C) the obligations of the Borrower to the
Lenders (and any Affiliate of any Lender) arising out of any Interest Rate
Protection Arrangements; and (6) sixth, any remaining funds shall be paid to
whomsoever shall be entitled thereto or as a court of competent jurisdiction
shall direct.
10. THE ADMINISTRATIVE AGENT
10.1 APPOINTMENT.
Each Lender hereby irrevocably designates and appoints BNY as
the Administrative Agent of such Lender under and in connection with the Loan
Documents. Each such Lender hereby irrevocably authorizes BNY as the
Administrative Agent for such Lender to take such action on its behalf under the
provisions of the Loan Documents and to exercise such powers and perform such
duties as are expressly delegated to the Administrative Agent by the terms of
the Loan Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement or any of the other Loan Documents, the Administrative Agent shall
have no duties or responsibilities, except those expressly set forth herein or
therein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into the Loan Documents or otherwise exist against the Administrative
Agent.
-83-
10.2 DELEGATION OF DUTIES.
The Administrative Agent may execute any of its duties under
the Loan Documents by or through agents or attorneys-in-fact and shall be
entitled to rely upon the advice of counsel concerning all matters pertaining to
such duties.
10.3 EXCULPATORY PROVISIONS.
Neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection with the Loan Documents (except for its own gross
negligence or willful misconduct), or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
the Borrower or any officer thereof contained in the Loan Documents or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, the Loan
Documents or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of any of the Loan Documents or for any failure of the Borrower
or any other Person to perform its obligations hereunder or thereunder. The
Administrative Agent shall be under no obligation to any Lender to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, the Loan Documents, or to inspect the
properties, books or records of the Borrower or any Subsidiary. The
Administrative Agent shall have no liability or responsibility whatsoever to the
Borrower or any other Person as a consequence of any failure or delay in
performance, or any breach, by the Issuing Bank or any Lender of any of its
obligations under any of the Loan Documents.
10.4 RELIANCE BY ADMINISTRATIVE AGENT.
The Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, opinion, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Borrower), independent accountants and other
experts selected by it. Subject to Section 11.7, the Administrative Agent may
treat each Lender as the holder of all of the interests of such Lender in its RC
Commitment and in its Loans and Notes. The Administrative Agent shall have no
duty to examine or pass upon the validity, effectiveness or genuineness of the
Loan Documents or any instrument, document or communication furnished pursuant
thereto or in connection therewith, and the Administrative Agent shall be
entitled to assume that the same are valid, effective and genuine, have been
signed or sent by the proper parties and are what they purport to be. The
Administrative Agent shall be fully
-84-
justified in failing or refusing to take any action under the Loan Documents
unless it shall first receive such advice or concurrence of the Required Lenders
as it deems appropriate. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under the Loan Documents in
accordance with a request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Notes.
10.5 NOTICE OF DEFAULT.
The Administrative Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default hereunder unless
it has received written notice thereof from the Issuing Bank, a Lender or the
Borrower. In the event that the Administrative Agent receives such a notice, it
shall promptly give notice thereof to the Issuer and the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders;
PROVIDED, HOWEVER, that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem to be in the best interests
of the Lenders.
10.6 NON-RELIANCE.
Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations or warranties to it
and that no act by the Administrative Agent hereinafter, including any review of
the affairs of the Borrower or its Subsidiaries, shall be deemed to constitute
any representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
evaluation of and investigation into the business, operations, Property,
financial and other condition and creditworthiness of the Borrower and its
Subsidiaries and made its own decision to enter into this Agreement. Each Lender
also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, evaluations and decisions in taking or not taking action under
this Agreement or any of the Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, Property,
financial and other condition and creditworthiness of the Borrower and its
Subsidiaries. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall have no duty or responsibility to provide any Lender
with any credit or other information concerning the business, operations,
Property, financial and other condition
-85-
or creditworthiness of the Borrower or its Subsidiaries which may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
10.7 INDEMNIFICATION.
Each Lender agrees to indemnify the Administrative Agent in
its capacity as such (to the extent not promptly reimbursed by or on behalf of
the Borrower and without limiting the obligation of the Borrower or any other
Loan Party to do so), ratably according to its Credit Exposure at such time,
from and against any and all liabilities, obligations, claims, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever including, without limitation, any amounts paid to the Lenders
(through the Administrative Agent) by the Borrower pursuant to the terms hereof,
that are subsequently rescinded or avoided, or must otherwise be restored or
returned) which may at any time (including, without limitation, at any time
following the payment of the Notes) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement, the other Loan Documents or any other documents contemplated by or
referred to herein or the transactions contemplated hereby or any action taken
or omitted to be taken by the Administrative Agent under or in connection with
any of the foregoing; PROVIDED, HOWEVER, that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements to the
extent resulting directly and primarily from the gross negligence or willful
misconduct of the Administrative Agent. The agreements in this Section 10.7
shall survive the payment of the Notes and all other amounts payable under the
Loan Documents.
10.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
BNY and its Affiliates, may make loans to, accept deposits
from, issue letters of credit for the account of and generally engage in any
kind of business with, the Borrower and its Subsidiaries as though BNY were not
the Administrative Agent. With respect to the RC Commitment made by BNY and each
Note issued to BNY, the Administrative Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it was not the Administrative Agent or the Issuing
Bank, and the terms "Lender" and "Lenders" shall in each case include BNY.
10.9 SUCCESSOR.
If at any time the Administrative Agent deems it advisable, in
its sole discretion, it may submit to each of the Lenders a written notification
of its resignation as Administrative Agent under the Loan Documents, such
resignation to be effective on the
-86-
later to occur of (i) the thirtieth day after the date of such notice and (ii)
the date upon which any successor Administrative Agent, in accordance with the
provisions of this Section 10.9, shall have accepted in writing its appointment
as such successor Administrative Agent. Upon any such resignation of the
Administrative Agent, the Required Lenders shall have the right to appoint from
among the Lenders a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders and
accepted such appointment within 30 days after the retiring Administrative
Agent's giving of notice of resignation, then the retiring Administrative Agent
may, on behalf of the Lenders, appoint a successor Administrative Agent, which
successor Administrative Agent shall be a commercial bank organized under the
laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $100,000,000. Upon the acceptance of
any appointment as Administrative Agent by a successor Administrative Agent,
such successor Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent's rights, powers,
privileges and duties as Administrative Agent under the Loan Documents shall be
terminated. The Borrower and the Lenders shall execute such documents as shall
be necessary to effect such appointment. After any retiring Administrative
Agent's resignation as Administrative Agent, the provisions of Section 10 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under the Loan Documents. If at any time hereunder
there shall not be a duly appointed and acting Administrative Agent, the
Borrower agrees to make each payment due under the Loan Documents directly to
the Persons entitled thereto during such time.
10.10 UPDATING EXHIBITS AND SCHEDULES.
The Administrative Agent is hereby authorized and directed
from time to time to (i) amend Exhibit A to reflect the RC Commitments of each
Lender as of the date of each assignment pursuant to Section 11.7 and, in
connection therewith, the Lending Offices and address for notices of each
assignee "Lender", (ii) amend Schedule 1.1(L) to reflect any change of address
of which the Administrative Agent has received written notice pursuant to
Section 11.2, and (iii) in each such case, to send a copy thereof to each party
hereto.
10.11 THE LEAD ARRANGER AND AGENTS.
The Lead Arranger, the Documentation Agent, the Syndication
Agent and the Co-Agents shall have no duties or obligations under the Loan
Documents in their respective capacities as Lead Arranger, Documentation Agent,
the Syndication Agent and Co-Agents. The Lead Arranger, the Documentation Agent,
the Syndication Agent and the Co-Agents shall be entitled to the same
protections, indemnities and rights, and
-87-
subject to the same standards with respect to their actions, inactions and
duties, as the Administrative Agent.
11. MISCELLANEOUS
11.1 AMENDMENTS AND WAIVERS.
With the written consent of the Required Lenders, which
consent may be transmitted by telecopier, the Administrative Agent and the
appropriate Loan Parties may, from time to time, enter into written amendments,
supplements or modifications of the Loan Documents and, with the consent of the
Required Lenders, the Administrative Agent on behalf of the Lenders may execute
and deliver to any such parties a written instrument waiving or consenting to
the departure from, on such terms and conditions as the Administrative Agent may
specify in such instrument, any of the requirements of the Loan Documents or any
Default or Event of Default and its consequences; PROVIDED, however, that:
(a) no such amendment, supplement, modification, waiver or
consent shall, without the written consent of all of the Lenders, (i) increase
the RC Commitments (other than pursuant to Section 2.4(d)) or the Letter of
Credit Commitment, (ii) extend the Maturity Date or the RC Commitment
Termination Date, (iii) extend the date or decrease the amount of any mandatory
reduction of the RC Commitments pursuant to Section 2.4(b)(i), (iv) decrease the
interest rate, extend the time, forgive or change the pro rata method of payment
of interest or principal on or applicable to any Note or Reimbursement
Obligation, (v) decrease the amount, extend the time, forgive or change the pro
rata method of payment of the Commitment Fee, or the Letter of Credit Fee, (vi)
release all or any part of the Collateral, the Parent Guaranty or the Subsidiary
Guaranty except in connection with a permitted sale or other permitted
disposition of the Collateral or the applicable Subsidiary Guarantor, as the
case may be, or to the extent that the Administrative Agent shall be required or
permitted to do so under the terms and provisions of the Loan Documents, (vii)
change the definition of Required Lenders, (viii) change the sharing provisions
among the Lenders, (ix) change the several nature of the obligations of the
Lenders to make Loans and participate in Letters of Credit, or (x) change the
provisions of Sections 2.9, 2.10, 2.11, 2.13, 2.14, 11.1, 11.7(a) or 11.11;
(b) without the written consent of the Administrative Agent,
no such amendment, supplement, modification or waiver shall amend, modify or
waive any provision of Section 10 or otherwise change any of the rights or
obligations of the Administrative Agent under the Loan Documents; and
(c) without the written consent of the Issuing Bank, no such
amendment, supplement, modification or waiver shall amend, modify or waive any
-88-
provision relating to the Issuing Bank, the Letter of Credit Commitment or the
Letters of Credit or otherwise change any of the rights or obligations of the
Issuing Bank hereunder or under the other Loan Documents.
Any such amendment, supplement, modification or waiver shall
apply equally to each of the Lenders and shall be binding upon the parties to
the applicable agreement, the Lenders, the Administrative Agent, the Issuing
Bank and all future holders of the Notes and the Reimbursement Obligations. In
the case of any waiver, the parties to the applicable agreement, the Lenders,
the Administrative Agent, and the Issuing Bank shall be restored to their former
position and rights under the Loan Documents to the extent provided for in such
waiver, and any Default or Event of Default waived shall not extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.
Notwithstanding the foregoing and in connection with the
consummation of the Common Ground Reorganization, the Administrative Agent may
release Common Ground Broadcasting, Inc. and Xxxxx Broadcasting, Inc. and
certain of their respective assets from the Subsidiary Guaranty (the "COMMON
GROUND COLLATERAL RELEASE") upon the receipt by the Administrative Agent of a
written notice from the Borrower stating that the Common Ground Reorganization
will be consummated within the following five Business Days.
11.2 NOTICES.
Except as otherwise expressly provided herein, all notices,
requests and demands to or upon the respective parties hereto to be effective
shall be in writing and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made (i) when delivered by hand, (ii) one
Business Day after having been sent by overnight courier service, (iii) five
Business Days after having been deposited in the mail, first-class postage
prepaid, or (iv) in the case of telecopier notice, when sent and transmission
confirmed (which may include electronic confirmation), addressed as follows in
the case of the Borrower, the Administrative Agent and the Issuing Bank, and as
set forth in Schedule 1.1(L) hereto in the case of each of the Lenders, or to
such other addresses as to which the Administrative Agent may be hereafter
notified by the respective parties hereto or any future holders of the Notes:
-89-
The Borrower:
Salem Communications Holding Corporation
0000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx,
Senior Vice President and
Chief Financial Officer
Telephone: (000) 000-0000 (ext. 131)
Telecopy: (000) 000-0000
with a copy to:
Salem Communications Corporation
0000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx X. Block, Esq.,
Secretary
Telephone: (000) 000-0000 (ext. 106)
Telecopy: (000) 000-0000
The Administrative Agent, the Issuing Bank and/or BNY:
The Bank of New York
Media and Telecommunications Division
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx,
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to, in the case of all Borrowing Requests and Letter of Credit
Requests, prepayment notices under Section 2.5(a) and conversion notices under
Section 2.8, and to the attention of, in the case of all fundings by the
Lenders:
The Bank of New York, as Administrative Agent
Agency Function Administration
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000 (or 6366/6367)
-90-
except that any notice, request or demand by the Borrower to or upon the
Administrative Agent, the Issuing Bank or the Lenders pursuant to Section 2.3,
2.4, 2.5, 2.8 or 2.18 shall not be effective until received.
11.3 NO WAIVER; CUMULATIVE REMEDIES.
No failure to exercise and no delay in exercising, on the part
of the Administrative Agent, the Issuing Bank or any Lender, any right, remedy,
power or privilege under any Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege under any Loan Document preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges under the Loan Documents are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
11.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made hereunder and in any
document, certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Agreement, the Notes
and the other Loan Documents.
11.5 PAYMENT OF EXPENSES AND TAXES.
The Borrower agrees, promptly upon presentation of a statement
or invoice therefor, and whether or not any Loan is made or Letter of Credit is
issued, (i) to pay or reimburse the Administrative Agent and the Arranger for
all their out-of-pocket reasonable costs and expenses incurred in connection
with the development, preparation, execution and syndication of, and any
amendment, waiver, consent, supplement or modification to, the Loan Documents,
any documents prepared in connection therewith and the consummation of the
transactions contemplated hereby and thereby, whether such Loan Documents or any
such other documents are executed and whether the transactions contemplated
thereby are consummated, including, without limitation, the reasonable fees and
disbursements of Special Counsel, (ii) to pay or reimburse the Administrative
Agent, the Issuing Bank, the Arranger and the Lenders for all of their
respective reasonable costs and expenses incurred in connection with the
workout, enforcement or preservation of any rights under the Loan Documents and
any such documents, including, without limitation, reasonable fees and
disbursements of counsel (including the allocated cost of internal counsel) to
the Administrative Agent, the Issuing Bank, the Arranger and the Lenders
including, without limitation, reasonable expenses of the Administrative Agent,
the Issuing Bank, the Arranger and the Lenders in connection with or
attributable to commercial finance examiners, accountants, investment banks and
environmental consultants, (iii) to pay, indemnify, and hold each Lender, the
Administrative Agent, the Issuing Bank and the Arranger harmless from, any and
all recording and filing fees and
-91-
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other Taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation of any
of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, any of the
Loan Documents and any such other documents, and (iv) to pay, indemnify and hold
each Lender, the Administrative Agent, the Issuing Bank and the Arranger and
each of their respective officers, directors, employees and agents harmless from
and against any and all other liabilities, obligations, claims, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever (including, without limitation, reasonable counsel
fees and disbursements (including the allocated cost of internal counsel)) with
respect to the execution, delivery, enforcement and performance of the Loan
Documents or the use of the proceeds of the Loans and Letters of Credit
hereunder (all the foregoing, collectively, the "INDEMNIFIED LIABILITIES") and,
if and to the extent that the foregoing indemnity may be unenforceable for any
reason, the Borrower agrees to make the maximum payment permitted under
applicable law; PROVIDED, however, that the Borrower shall have no obligation
hereunder to pay Indemnified Liabilities to the Administrative Agent, the
Issuing Bank, the Arranger or any Lender to the extent arising directly and
primarily from the gross negligence or willful misconduct of the Administrative
Agent, the Issuing Bank, the Arranger or such Lender, as the case may be. The
agreements in this Section 11.5 shall survive the termination of the RC
Commitments and the payment of the Notes and all other amounts payable
hereunder.
11.6 LENDING OFFICES.
Subject to Section 2.17(b), each Lender shall have the right
at any time and from time to time to transfer any Loan to a different office of
such Lender, PROVIDED that such Lender shall promptly notify the Administrative
Agent and the Borrower of any such change of office. Such office shall thereupon
become such Lender's Lending Office.
11.7 SUCCESSORS AND ASSIGNS.
(a) This Agreement, the Notes and the other Loan Documents to
which the Borrower is a party shall be binding upon and inure to the benefit of
the Borrower, the Lenders, the Administrative Agent, the Issuing Bank, all
future holders of the Notes and their respective successors and assigns, except
that the Borrower may not assign, delegate or transfer any of its rights or
obligations under this Agreement, the Notes and the Loan Documents to which the
Borrower is a party without the prior written consent of each Lender.
(b) Each Lender shall have the right at any time, upon written
notice to the Administrative Agent of its intent to do so, to sell or assign
(each an "ASSIGNMENT")
-92-
all or any part of its Loans, its RC Commitment and its Notes, on a pro rata
basis to one or more of the other Lenders (or, with the written consent of the
Issuing Bank, such consent not to be unreasonably withheld or delayed, to
affiliates of such Lender or such other Lenders) or, with the written consent of
Administrative Agent, the Issuing Bank and the Borrower (such consents not to be
unreasonably withheld or delayed and, such consent of the Borrower not to be
required during the continuance of a Default or Event of Default), to any other
bank, insurance company, pension fund, mutual fund or other financial
institution, PROVIDED that (i) each such partial Assignment shall be in a
minimum aggregate amount of $5,000,000 (unless otherwise consented to by the
Borrower) or, in the case of any assignment pursuant to Section 2.4(d),
$1,000,000, (ii) the parties to each such Assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption Agreement along with a
fee (the "ASSIGNMENT FEE") of $3,500 with respect to the Assignment made under
this Agreement and (iii) no such assignment may be made to the Borrower or to
any Affiliate of the Borrower. Upon receipt of each such duly executed
Assignment and Assumption Agreement together with the Assignment Fee therefor in
compliance with the provisions hereof, the Administrative Agent shall (x) record
the same and signify its acceptance thereof by executing two copies of such
Assignment and Assumption Agreement in the appropriate place and delivering one
copy to the assignor and one copy to the assignee and (y) request the Borrower
to execute and deliver (1) to such assignee one or more Notes, in an aggregate
principal amount equal to the Loans assigned to, and RC Commitments assumed by,
such assignee and (2) to such assignor one or more Notes, in an aggregate
principal amount equal to the balance of such assignor Lender's Loans and RC
Commitment, if any, in each case against receipt of such assignor Lender's
existing Notes. The Borrower agrees that it shall, upon each such request of the
Administrative Agent, execute and deliver such new Notes at its own cost and
expense. Upon such delivery, acceptance and recording by the Administrative
Agent, from and after the effective date specified in such Assignment and
Assumption Agreement, the assignee thereunder shall be a party hereto and shall
for all purposes of this Agreement and the other Loan Documents be deemed a
"Lender" and, to the extent provided in such Assignment and Assumption
Agreement, the assignor Lender thereunder shall be released from its obligations
under this Agreement and the other Loan Documents.
(c) Each Lender may grant participations in all or any part of
its Loans, its Notes or its RC Commitment to any other bank, insurance company,
pension fund, mutual fund, financial institution or other entity, PROVIDED that
no such participant shall have any right to require such Lender to take or omit
to take any action under any Loan Document except any action which would require
the consent of all Lenders pursuant to Section 11.1. The Borrower hereby
acknowledges and agrees that any such participant shall for purposes of Sections
2.9, 11.5, 11.9 and 11.11 be deemed to be a "Lender".
-93-
(d) No Lender shall, as between and among the Borrower, the
Administrative Agent, the Issuing Bank, and such Lender, be relieved of any of
its obligations under the Loan Documents as a result of any Assignment or
granting of a participation in, all or any part of its Loans, its RC Commitment
or its Notes, except that a Lender shall be relieved of its obligations to the
extent of any Assignment of all or any part of its Loans, its RC Commitment or
its Notes pursuant to subsection (b) above.
(e) Notwithstanding anything to the contrary contained in this
Section 11.7, any Lender may at any time assign all or any portion of its rights
under the Loan Documents to a Federal Reserve Bank. No such assignment shall
release such Lender from its obligations thereunder.
11.8 COUNTERPARTS.
This Agreement and each of the other Loan Documents (other
than the Notes) may be executed by one or more of the parties to this Agreement
or to such other Loan Document, as the case may be, on any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same agreement. It shall not be necessary in making proof
of any Loan Document to produce or account for more than one counterpart signed
by the party to be charged. Any of the parties to this Agreement and the other
Loan Documents may rely on signatures of such parties hereto and thereto which
are transmitted by telecopier or other electronic means as fully as if
originally signed. A set of the copies of this Agreement and each of the other
Loan Documents signed by all the parties shall be lodged with each of the
Borrower and the Administrative Agent.
11.9 ADJUSTMENTS; SET-OFF.
(a) If any Lender (a "BENEFITED LENDER") shall at any time
receive any payment of all or any part of its Loans, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set-off, pursuant to events or proceedings of the nature referred to in
Section 9.1 (h) or (i), or otherwise) in a greater proportion than any such
payment to and collateral received by any other Lender, if any, in respect of
such other Lender's Loans, or interest thereon, such benefited Lender shall
notify the Administrative Agent and shall purchase for cash from the other
Lenders such portion of each such other Lender's Loans, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefited Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Lenders;
PROVIDED, however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest, unless the benefitted Lender is required to pay
interest on the amount of the excess payment to be returned, in which case the
other
-94-
Lenders shall pay their pro rata share of such interest. The Borrower agrees
that each Lender so purchasing a portion of another Lender's Loans may exercise
all rights of payment (including, without limitation, rights of set-off) with
respect to such portion as fully as if such Lender were the direct holder of
such portion.
(b) In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and at any time during the continuance of
an Event of Default, each Lender shall have the right, without prior notice to
any Loan Party, any such notice being expressly waived by each such Loan Party
to the extent permitted by applicable law, to set off and apply against any
indebtedness, whether matured or unmatured, of such Loan Party to such Lender,
any amount owing from such Lender to such Loan Party, at, or at any time after,
the happening of any of the above-mentioned events. To the extent permitted by
applicable law, the aforesaid right of set-off may be exercised by such Lender
against each Loan Party or against any trustee in bankruptcy, custodian, debtor
in possession, assignee for the benefit of creditors, receiver, or execution,
judgment or attachment creditor of such Loan Party, or against anyone else
claiming through or against such Loan Party or such trustee in bankruptcy,
custodian, debtor in possession, assignee for the benefit of creditors,
receiver, or execution, judgment or attachment creditor, notwithstanding the
fact that such right of set-off shall not have been exercised by such Lender
prior to the making, filing or issuance, or service upon such Lender of, or of
notice of, any such petition, assignment for the benefit of creditors,
appointment or application for the appointment of a receiver, or issuance of
execution, subpoena, order or warrant. Promptly after any such set-off and
application made by a Lender against a Loan Party, such Lender shall notify such
Loan Party and the Administrative Agent, PROVIDED that the failure to give such
notice shall not affect the validity of such set-off and application.
11.10 NO THIRD PARTY BENEFICIARY.
This Agreement is among the Borrower, the Lenders, the
Administrative Agent, the Issuing Bank and the Arranger and no other Person is
intended to or shall have any rights hereunder or shall be permitted to rely
hereon.
11.11 INDEMNITY.
(a) The Borrower agrees to indemnify and hold harmless each of the
Administrative Agent, the Issuing Bank, the Arranger, each Lender and each of
their respective officers, directors, employees and agents (each an "INDEMNIFIED
PARTY") from and against any loss, cost, liability, damage or expense (including
the reasonable fees and out-of-pocket expenses of counsel to each such
Indemnified Party, including all local counsel hired by any such counsel)
incurred by each such Indemnified Party in investigating, preparing for,
defending against, or providing evidence, producing documents or taking any
other action in respect of, any claim, commenced or threatened
-95-
litigation, administrative proceeding or investigation under any federal
securities law or any other statute of any jurisdiction, or any regulation, or
at common law or otherwise, which is alleged to arise out of or is based upon
(i) any untrue statement or alleged untrue statement of any material fact of the
Borrower or any Subsidiary in any document or schedule executed or filed with
the Securities and Exchange Commission or any other Governmental Authority by or
on behalf of the Borrower or any Subsidiary, (ii) any omission or alleged
omission to state any material fact required to be stated in such document or
schedule, or necessary to make the statements made therein, in light of the
circumstances under which made, not misleading, (iii) any of the Loan Documents,
the transactions contemplated hereby or thereby or any acts, practices or
omissions or alleged acts, practices or omissions of the Borrower or any of its
agents relating to the use of the proceeds of any or all Letters of Credit or
Loans which are alleged to be in violation of Section 2.7, or in violation of
any federal securities law or of any other statute, regulation or other law of
any jurisdiction applicable thereto, or (iv) any acquisition or proposed
acquisition by the Borrower or any Subsidiary of all or a portion of the Stock,
or all or a portion of the assets, of any Person, in each case whether or not
any Indemnified Party is a party thereto.
(b) In addition to the indemnity provided under Section
11.11(a), the Borrower agrees to defend, indemnify and hold harmless each
Indemnified Party from and against any loss, cost, liability, fine, penalties,
damage or expense (including the reasonable fees and out-of-pocket expenses of
counsel to each such Indemnified Party, including all local counsel hired by any
such counsel) suffered or incurred by each such Indemnified Party, pertaining to
any release or threatened release of a reportable quantity of any hazardous
substance or hazardous waste at any Property of the Borrower or any of its
Subsidiaries (a "HAZARDOUS DISCHARGE"), including, but not limited to, claims of
any Governmental Authority or any third Person, whether arising under or on
account of any Environmental Law or tort, contract or common law, including,
without limitation, the assertion of any Lien thereunder, with respect to any
Hazardous Discharge, the presence of any hazardous substances or hazardous
wastes affecting any Property of the Borrower or any of its Subsidiaries,
whether or not the same originates or engages from such Property or any
contiguous real estate, including any loss of value of such Property as a result
of the foregoing. The Borrower's obligations under this Section 11.11(b) shall
arise upon the discovery of any Hazardous Discharge at such Property, whether or
not any Governmental Authority or any other Person has taken or threatened any
action in connection with the presence of any hazardous substances or hazardous
wastes.
(c) The indemnities set forth herein shall be in addition to
any other obligations or liabilities of the Borrower to the Indemnified Parties
hereunder or at common law or otherwise, and shall survive any termination of
this Agreement, the expiration of the RC Commitments and the payment of all
indebtedness of the Borrower hereunder and under the other Loan Documents,
PROVIDED that the Borrower shall have no
-96-
obligation under this Section 11.11 to an Indemnified Party with respect to any
of the foregoing to the extent arising directly and primarily out of the gross
negligence or willful misconduct of such Indemnified Party.
11.12 GOVERNING LAW.
This Agreement, the Notes and the other Loan Documents and the
rights and obligations of the parties under this Agreement, the Notes and the
other Loan Documents shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York, without regard to principles
of conflict of laws.
11.13 HEADINGS.
Section headings have been inserted herein and in the other
Loan Documents for convenience only and shall not be construed to be a part
hereof or thereof.
11.14 SEVERABILITY.
Every provision of this Agreement and the other Loan Documents
is intended to be severable, and if any term or provision hereof or thereof
shall be invalid, illegal or unenforceable for any reason, the validity,
legality and enforceability of the remaining provisions hereof or thereof shall
not be affected or impaired thereby, and any invalidity, illegality or
unenforceability in any jurisdiction shall not affect the validity, legality or
enforceability of any such term or provision in any other jurisdiction.
11.15 INTEGRATION.
All exhibits and schedules to this Agreement shall be deemed
to be a part of this Agreement or the applicable Loan Document, as the case may
be. Except for agreements between the Borrower and the Administrative Agent, the
Issuing Bank and the Arranger with respect to certain fees, this Agreement and
the other Loan Documents embody the entire agreement and understanding among the
Borrower, the Administrative Agent, the Issuing Bank, the Arranger and the
Lenders with respect to the subject matter hereof and thereof and supersede all
prior agreements and understandings among the Borrower, the Administrative
Agent, the Issuing Bank, the Arranger and the Lenders with respect to the
subject matter hereof and thereof.
11.16 LIMITATION OF LIABILITY.
No claim may be made by the Borrower, any of its Subsidiaries,
any other Loan Party, any Lender or other Person against the Administrative
Agent, the Issuing Bank, any Lender, the Arranger, or any directors, officers,
employees, or agents of any of them, for any special, indirect, consequential or
punitive damages in respect of any claim for breach of contract or any other
theory of liability arising out of or related to the
-97-
transactions contemplated by any Loan Document, or any act, omission or event
occurring in connection therewith, and each of the Borrower, its Subsidiaries,
such other Loan Party, any such Lender or other Person hereby waives, releases
and agrees not to xxx upon any claim for any such damages, whether or not
accrued and whether or not known or suspected to exist in its favor.
11.17 CONSENT TO JURISDICTION.
The Borrower hereby irrevocably submits to the jurisdiction of
any New York State or Federal Court sitting in the City of New York over any
suit, action or proceeding arising out of or relating to the Loan Documents. The
Borrower hereby irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding brought in such a court and any claim that any
such suit, action or proceeding brought in such a court has been brought in an
inconvenient forum. The Borrower hereby agrees that a final judgment in any such
suit, action or proceeding brought in such a court, after all appropriate
appeals, shall be conclusive and binding upon it.
11.18 SERVICE OF PROCESS.
The Borrower hereby agrees that process may be served in any
suit, action, counterclaim or proceeding of the nature referred to in Section
11.17 by mailing copies thereof by registered or certified mail, postage
prepaid, return receipt requested, to the address of the Borrower set forth in
Section 11.2 or to any other address of which the Borrower shall have given
written notice to the Administrative Agent. The Borrower hereby agrees that such
service, to the extent permitted by applicable law (i) shall be deemed in every
respect effective service of process upon it in any such suit, action,
counterclaim or proceeding, and (ii) shall to the fullest extent enforceable by
law, be taken and held to be valid personal service upon and personal delivery
to it.
11.19 NO LIMITATION ON SERVICE OR SUIT.
Nothing in the Loan Documents or any modification, waiver, or
amendment thereto shall affect the right of the Administrative Agent, the
Issuing Bank or any Lender to serve process in any manner permitted by law or
limit the right of the Administrative Agent, the Issuing Bank or any Lender to
bring proceedings against the Borrower in the courts of any jurisdiction or
jurisdictions.
11.20 WAIVER OF TRIAL BY JURY.
THE ADMINISTRATIVE AGENT, THE ISSUING BANK, THE LENDERS AND
THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT
THEY MAY HAVE TO A TRIAL BY JURY
-98-
IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THE
LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREIN. FURTHER, THE BORROWER
HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE ADMINISTRATIVE AGENT,
THE ISSUING BANK OR THE LENDERS, OR COUNSEL TO THE ADMINISTRATIVE AGENT, THE
ISSUING BANK OR THE LENDERS, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE
ADMINISTRATIVE AGENT, THE ISSUING BANK OR THE LENDERS WOULD NOT, IN THE EVENT OF
SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.
THE BORROWER ACKNOWLEDGES THAT THE ADMINISTRATIVE AGENT, THE ISSUING BANK AND
THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THE LOAN DOCUMENTS BY, INTER ALIA,
THE PROVISIONS OF THIS SECTION.
11.21 CONFIDENTIALITY.
The Administrative Agent, the Issuing Bank and the Lenders
each agree that, without the prior written consent of the Borrower, it will not
disclose the terms of this Agreement or any material confidential information
with respect to the Borrower, or any of its Subsidiaries which is furnished
pursuant to this Agreement to any Person except (i) its accountants, attorneys
and other advisors who have a need to know such information or its Affiliates,
and in each case who agree to be bound by the provisions of this Section 11.21,
(ii) to the extent such information is requested to be disclosed to any
regulatory or administrative body or commission to whose jurisdiction the
Administrative Agent, the Issuing Bank or such Lender is subject, (iii) to the
extent such information is requested or required to be disclosed by subpoena or
similar process of applicable law or regulation, (iv) to the extent the Borrower
has previously disclosed such information publicly or such information is
otherwise in the public domain (except by virtue of a breach by the
Administrative Agent, the Issuing Bank or such Lender of its obligations under
this Section 11.21) at the time of disclosure, (v) such information which is
disclosed in connection with any litigation or dispute between the
Administrative Agent, the Issuing Bank or such Lender and any Loan Party
concerning this Agreement, any other Loan Document, or any instrument or
document executed or delivered in connection herewith or therewith, (vi) such
information which was in the possession of such Person or such Person's
Affiliates without the obligation of confidentiality prior to the Administrative
Agent, the Issuing Bank or such Lender furnishing it to such Person, and (vii)
in connection with a prospective assignment, grant of a participation interest
or other transfer by a Lender of any of its interest in this Agreement or the
Notes, PROVIDED that the Person to whom such information is disclosed shall
agree to be bound by the provisions of this Section 11.21.
-99-
11.22 SAVINGS CLAUSE.
(a) This Agreement is intended solely as an amendment of, and
contemporaneous restatement of, the terms and conditions of the Second Restated
Agreement and this Agreement is not intended and should not be construed as in
any way extinguishing or terminating the Second Restated Agreement. The
Collateral Documents, each to the extent amended as provided herein, shall
remain in full force and effect and continue to secure the obligations described
therein.
(b) Nothing in this Agreement shall affect the rights of the
Credit Parties to payments under Sections 2, 3 and 11 for the period prior to
the Third Restatement Date and such rights shall continue to be governed by the
provisions of the Second Restated Agreement.
-100-
SALEM COMMUNICATIONS HOLDING CORPORATION
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Third Amended
and Restated Credit Agreement to be duly executed and delivered by their proper
and duly authorized officers as of the day and year first above written.
SALEM COMMUNICATIONS HOLDING CORPORATION
By:____________________________________
Name:__________________________________
Title:_________________________________
THE BANK OF NEW YORK,
in its individual capacity, as Issuing Bank
and as Administrative Agent
By:____________________________________
Name:__________________________________
Title:_________________________________
BANK OF AMERICA, N.A.,
in its individual capacity and as
Syndication Agent
By:____________________________________
Name:__________________________________
Title:_________________________________
FLEET NATIONAL BANK,
in its individual capacity and as
Documentation Agent
By:____________________________________
Name:__________________________________
Title:_________________________________
UNION BANK OF CALIFORNIA, N.A., in its
individual capacity and as Co-Agent
By:____________________________________
Name:__________________________________
Title:_________________________________
THE BANK OF NOVA SCOTIA, in its individual
capacity and as Co-Agent
By:____________________________________
Name:__________________________________
Title:_________________________________
FIRST HAWAIIAN BANK
By:____________________________________
Name:__________________________________
Title:_________________________________
SUMMIT BANK
By:____________________________________
Name:__________________________________
Title:_________________________________
CITY NATIONAL BANK
By:____________________________________
Name:__________________________________
Title:_________________________________
CONSENTED TO:
ATEP RADIO, INC.
BISON MEDIA, INC.
XXXXX BROADCASTING, INC.
CCM COMMUNICATIONS, INC.
COMMON GROUND BROADCASTING, INC.
GOLDEN GATE BROADCASTING COMPANY, INC.
INLAND RADIO, INC.
INSPIRATION MEDIA OF TEXAS, INC.
INSPIRATION MEDIA, INC.
KINGDOM DIRECT, INC.
NEW ENGLAND CONTINENTAL MEDIA, INC.
NEW INSPIRATION BROADCASTING COMPANY, INC.
OASIS RADIO, INC.
ONEPLACE, LTD.
PENNSYLVANIA MEDIA ASSOCIATES, INC.
RADIO 1210, INC
REACH SATELLITE NETWORK, INC.
SALEM MEDIA CORPORATION
SALEM MEDIA OF COLORADO, INC.
SALEM MEDIA OF KENTUCKY, INC.
SALEM MEDIA OF GEORGIA, INC.
SALEM MEDIA OF HAWAII, INC.
SALEM MEDIA OF OHIO, INC.
SALEM MEDIA OF OREGON, INC.
SALEM MEDIA OF PENNSYLVANIA, INC.
SALEM MEDIA OF TEXAS, INC.
SALEM MEDIA OF VIRGINIA, INC.
SALEM MUSIC NETWORK, INC.
SALEM RADIO NETWORK INCORPORATED
SALEM RADIO PROPERTIES, INC.
SALEM RADIO REPRESENTATIVES, INC.
SOUTH TEXAS BROADCASTING, INC.
SRN NEWS NETWORK, INC.
VISTA BROADCASTING, INC.
AS TO EACH OF THE FOREGOING:
By:____________________________________
Name:__________________________________
Title:_________________________________
TABLE OF CONTENTS
-----------------
1. DEFINITIONS...........................................................................................3
1.1 DEFINED TERMS...............................................................................3
1.2 PRINCIPLES OF CONSTRUCTION.................................................................26
2. AMOUNT AND TERMS OF LOANS............................................................................26
2.1 LOANS......................................................................................26
2.2 NOTES......................................................................................27
2.3 PROCEDURE FOR BORROWING LOANS..............................................................27
2.4 REDUCTION AND INCREASE OF RC COMMITMENTS...................................................29
2.5 PREPAYMENTS OF THE LOANS...................................................................33
2.6 INTEREST RATE AND PAYMENT DATES; HIGHEST LAWFUL RATE.......................................34
2.7 USE OF PROCEEDS............................................................................35
2.8 CONVERSIONS; OTHER MATTERS.................................................................36
2.9 INDEMNIFICATION FOR LOSS...................................................................37
2.10 REIMBURSEMENT FOR COSTS...................................................................38
2.11 ILLEGALITY OF FUNDING.....................................................................38
2.12 OPTION TO FUND............................................................................39
2.13 TAXES; NET PAYMENTS.......................................................................39
2.14 CAPITAL ADEQUACY..........................................................................40
2.15 SUBSTITUTED INTEREST RATE.................................................................41
2.16 TRANSACTION RECORD........................................................................42
2.17 CERTIFICATES OF PAYMENT AND REIMBURSEMENT; OTHER PROVISIONS REGARDING YIELD PROTECTION....42
2.18 LETTER OF CREDIT SUB-FACILITY.............................................................43
2.19 LETTER OF CREDIT PARTICIPATION............................................................44
2.20 ABSOLUTE OBLIGATION WITH RESPECT TO LETTER OF CREDIT PAYMENTS.............................45
3. FEES; PAYMENTS.......................................................................................46
3.1 FEES.......................................................................................46
3.2 PRO RATA TREATMENT AND APPLICATION OF PAYMENTS.............................................47
4. REPRESENTATIONS AND WARRANTIES.......................................................................48
4.1 SUBSIDIARIES...............................................................................48
4.2 CORPORATE EXISTENCE AND POWER..............................................................48
4.3 AUTHORITY..................................................................................48
4.4 GOVERNMENTAL AUTHORITY APPROVALS...........................................................48
4.5 BINDING AGREEMENT..........................................................................49
4.6 LITIGATION.................................................................................49
4.7 NO CONFLICTING AGREEMENTS..................................................................49
4.8 TAXES......................................................................................50
4.9 COMPLIANCE WITH APPLICABLE LAWS............................................................50
4.10 GOVERNMENTAL REGULATIONS..................................................................50
4.11 PROPERTY; BROADCASTING BUSINESS...........................................................50
4.12 FEDERAL RESERVE REGULATIONS; USE OF PROCEEDS..............................................51
4.13 NO MISREPRESENTATION......................................................................51
4.14 PLANS.....................................................................................52
4.15 FCC MATTERS...............................................................................52
4.16 BURDENSOME OBLIGATIONS....................................................................52
4.17 FINANCIAL STATEMENTS......................................................................53
4.18 ENVIRONMENTAL MATTERS.....................................................................53
5. CONDITIONS OF EFFECTIVENESS AND LENDING..............................................................54
5.1 EFFECTIVENESS..............................................................................54
5.2 ALL LOANS AND LETTERS OF CREDIT............................................................56
6. FINANCIAL COVENANTS..................................................................................57
6.1 TOTAL LEVERAGE RATIO.......................................................................57
6.2 CONSOLIDATED ANNUAL OPERATING CASH FLOW TO PRO-FORMA DEBT SERVICE..........................57
6.3 CONSOLIDATED ANNUAL OPERATING CASH FLOW TO INTEREST EXPENSE................................58
6.4 CONSOLIDATED ANNUAL OPERATING CASH FLOW TO FIXED CHARGES...................................58
6.5 SUBORDINATED INDENTURE DEBT TO OPERATING CASH FLOW RATIO...................................58
7. AFFIRMATIVE COVENANTS................................................................................58
7.1 FINANCIAL STATEMENTS.......................................................................58
7.2 CERTIFICATES; OTHER INFORMATION............................................................61
7.3 LEGAL EXISTENCE............................................................................63
7.4 TAXES......................................................................................63
7.5 INSURANCE AND CONDEMNATION.................................................................64
7.6 PAYMENT OF INDEBTEDNESS AND PERFORMANCE OF OBLIGATIONS.....................................65
7.7 CONDITION OF PROPERTY......................................................................65
7.8 OBSERVANCE OF LEGAL REQUIREMENTS; ERISA; ENVIRONMENTAL LAWS................................65
7.9 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.....................................66
7.10 FCC LICENSES, ETC.........................................................................66
7.11 SUBSIDIARY GUARANTY.......................................................................66
7.12 MORTGAGES.................................................................................66
7.13 GOOD STANDING.............................................................................67
8. NEGATIVE COVENANTS...................................................................................67
-ii-
8.1 BORROWING..................................................................................67
8.2 LIENS......................................................................................68
8.3 MERGER OR ACQUISITION OF PROPERTY..........................................................68
8.4 RESTRICTED PAYMENTS........................................................................71
8.5 INVESTMENTS, LOANS, ETC....................................................................72
8.6 BUSINESS CHANGES...........................................................................74
8.7 SALE OF PROPERTY...........................................................................74
8.8 CREATION OF SUBSIDIARIES...................................................................76
8.9 COMPLIANCE WITH ERISA......................................................................76
8.10 CERTIFICATE OF INCORPORATION AND BY-LAWS; CERTAIN AGREEMENTS..............................76
8.11 PREPAYMENTS OF INDEBTEDNESS...............................................................76
8.12 ACCOUNTING PRACTICE; FISCAL YEAR..........................................................77
8.13 LIMITATION ON UPSTREAM TRANSFERS..........................................................77
8.14 TRANSACTIONS WITH AFFILIATES..............................................................77
8.15 SALE AND LEASEBACK........................................................................78
8.16 STOCK ISSUANCE............................................................................78
8.17 SUBORDINATED INDENTURE....................................................................78
8.18 FEDERAL RESERVE REGULATIONS...............................................................78
8.19 CHANGE IN NAME, JURISDICTION OF ORGANIZATION; NATURE OF BUSINESS..........................78
8.20 LEASE OBLIGATIONS.........................................................................79
9. DEFAULT..............................................................................................79
9.1 EVENTS OF DEFAULT..........................................................................79
10. THE ADMINISTRATIVE AGENT............................................................................83
10.1 APPOINTMENT...............................................................................83
10.2 DELEGATION OF DUTIES......................................................................84
10.3 EXCULPATORY PROVISIONS....................................................................84
10.4 RELIANCE BY ADMINISTRATIVE AGENT..........................................................84
10.5 NOTICE OF DEFAULT.........................................................................85
10.6 NON-RELIANCE..............................................................................85
10.7 INDEMNIFICATION...........................................................................86
10.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY...........................................86
10.9 SUCCESSOR.................................................................................86
10.10 UPDATING EXHIBITS AND SCHEDULES..........................................................87
10.11 THE LEAD ARRANGER AND AGENTS.............................................................87
11. MISCELLANEOUS.......................................................................................88
11.1 AMENDMENTS AND WAIVERS....................................................................88
11.2 NOTICES...................................................................................89
11.3 NO WAIVER; CUMULATIVE REMEDIES............................................................91
-iii-
11.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES................................................91
11.5 PAYMENT OF EXPENSES AND TAXES.............................................................91
11.6 LENDING OFFICES...........................................................................92
11.7 SUCCESSORS AND ASSIGNS....................................................................92
11.8 COUNTERPARTS..............................................................................94
11.9 ADJUSTMENTS; SET-OFF......................................................................94
11.10 NO THIRD PARTY BENEFICIARY...............................................................95
11.11 INDEMNITY................................................................................95
11.12 GOVERNING LAW............................................................................97
11.13 HEADINGS.................................................................................97
11.14 SEVERABILITY.............................................................................97
11.15 INTEGRATION..............................................................................97
11.16 LIMITATION OF LIABILITY..................................................................97
11.17 CONSENT TO JURISDICTION..................................................................98
11.18 SERVICE OF PROCESS.......................................................................98
11.19 NO LIMITATION ON SERVICE OR SUIT.........................................................98
11.20 WAIVER OF TRIAL BY JURY..................................................................98
11.21 CONFIDENTIALITY..........................................................................99
11.22 SAVINGS CLAUSE..........................................................................100
-iv-
EXHIBITS
======================== ================================================================================
Exhibit A List of Commitments
------------------------ --------------------------------------------------------------------------------
Exhibit B Form of Revolving Credit Note
------------------------ --------------------------------------------------------------------------------
Exhibit C Form of Borrowing Request
------------------------ --------------------------------------------------------------------------------
Exhibit D Form of Letter of Credit Request
------------------------ --------------------------------------------------------------------------------
Exhibit E Form of Opinion of Counsel to the Borrower and Subsidiaries
------------------------ --------------------------------------------------------------------------------
Exhibit F Form of Opinion of FCC Counsel to the Borrower and Subsidiaries
------------------------ --------------------------------------------------------------------------------
Exhibit G Form of Compliance Certificate
------------------------ --------------------------------------------------------------------------------
Exhibit H Form of Borrower Security Agreement
------------------------ --------------------------------------------------------------------------------
Exhibit I Form of Subsidiary Guaranty
------------------------ --------------------------------------------------------------------------------
Exhibit J Form of Assignment and Assumption Agreement
------------------------ --------------------------------------------------------------------------------
Exhibit K Form of RC Supplement
------------------------ --------------------------------------------------------------------------------
Exhibit L [Intentionally Omitted]
------------------------ --------------------------------------------------------------------------------
Exhibit M Form of Parent Guaranty
------------------------ --------------------------------------------------------------------------------
Exhibit N Form of Parent Security Agreement
======================== ================================================================================
SCHEDULES
============================ ================================================================================
Schedule 1.1(L) List of Lending Offices
---------------------------- --------------------------------------------------------------------------------
Schedule 4.1 List of Subsidiaries
---------------------------- --------------------------------------------------------------------------------
Schedule 4.2 Exceptions to Section 4.2 (Good Standing)
---------------------------- --------------------------------------------------------------------------------
Schedule 4.6 List of Litigation
---------------------------- --------------------------------------------------------------------------------
Schedule 4.7 List of Conflicting Agreements
---------------------------- --------------------------------------------------------------------------------
Schedule 4.8 Exceptions to Section 4.8 (Taxes)
---------------------------- --------------------------------------------------------------------------------
Schedule 4.11(b) List of FCC Proceedings
---------------------------- --------------------------------------------------------------------------------
Schedule 4.11(c) List of Real Property
---------------------------- --------------------------------------------------------------------------------
Schedule 4.14 List of Plans
---------------------------- --------------------------------------------------------------------------------
Schedule 4.18 Exceptions to Section 4.18 (Environmental Matters)
---------------------------- --------------------------------------------------------------------------------
Schedule 8.1 List of Existing Indebtedness
---------------------------- --------------------------------------------------------------------------------
Schedule 8.2 List of Existing Liens
---------------------------- --------------------------------------------------------------------------------
Schedule 8.3(c) List of Designated Transactions
---------------------------- --------------------------------------------------------------------------------
Schedule 8.5(c) List of Existing Investments
============================ ================================================================================
-v-
