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CREDIT AGREEMENT
DATED AS OF FEBRUARY ___, 1996
AMONG
JACOR COMMUNICATIONS, INC.,
THE BANKS PARTY HERETO,
BANQUE PARIBAS, AS AGENT
AND
THE FIRST NATIONAL BANK OF BOSTON
AND
BANK OF AMERICA ILLINOIS,
AS CO-AGENTS
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
ARTICLE II
THE CREDITS
Section 2.1 Revolving A Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.2 Revolving B Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.3 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.4 Applicable Margin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.5 Borrowing Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.6 Disbursement of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.7 Interest Periods, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 2.8 Mandatory Principal Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 2.9 Optional Principal Payments and Reductions
of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.10 Method and Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.11 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.12 Notes; Recordkeeping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.13 Minimum Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.14 Eurodollar Rate Conversion and Continuation . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.15 Lending Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.16 Non-Receipt of Funds by the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.17 Collateral Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.18 Further Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE III
CHANGE IN CIRCUMSTANCES
Section 3.1 Yield Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.2 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.3 Availability of Rate Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 3.4 Funding Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 3.5 Bank Certificates; Survival of Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.1 Conditions Precedent to Initial Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 4.2 Conditions Precedent to All Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.1 Corporate Existence and Standing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 5.2 Authorization and Validity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 5.3 No Conflict; Government Consent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 5.4 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 5.5 Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 5.6 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 5.7 Litigation and Contingent Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
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Section 5.8 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 5.9 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 5.10 Accuracy of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 5.11 Margin Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 5.12 Materially Burdensome Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 5.13 Compliance with Laws; Franchises and Licenses . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 5.14 Ownership of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 5.15 Location of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 5.16 Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 5.17 Public Utility Holding Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 5.18 Capital Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 5.19 Deposit Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 5.20 Excluded Subsidiaries, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 5.21 Labor Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 5.22 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 5.23 Security Interests and Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 5.24 Closing Date Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 5.25 Call Letters; Patents, Trademarks, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 5.26 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 5.27 Brokers' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 5.28 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 5.29 Representations and Warranties in Noble Documents . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE VI
COVENANTS
Section 6.1 Financial Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.2 Notice of Default, Litigation etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.3 Financial Ratios . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.4 Conduct of Business; Maintenance of Licenses . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.5 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 6.6 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 6.7 Compliance with Laws and FCC Filings in connection
with Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 6.8 Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 6.9 Inspection, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 6.10 Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 6.11 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 6.12 Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 6.13 Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 6.14 Sale and Leaseback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 6.15 Investments and Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 6.16 Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 6.17 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 6.18 Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 6.19 Rentals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 6.20 Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 6.21 Management Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 6.22 Interest Rate Protection, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 6.23 Certain Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 6.24 Fiscal Year; Fiscal Quarter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
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Section 6.25 Amendment to Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.26 Subsidiary Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.27 FCC Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.28 Deposit Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.29 Cash Management System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.30 Amendments and Waivers to Noble Documents,
Mexican Documents and Employment Agreements . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 6.31 Intercreditor Agreement and the Citicasters
L/C Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE VII
DEFAULTS
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
Section 8.1 Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 8.2 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 8.3 Preservation of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE IX
GENERAL PROVISIONS
Section 9.1 Survival of Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 9.2 Governmental Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 9.3 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 9.4 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 9.5 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 9.6 Several Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 9.7 Expenses; Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 9.8 Numbers of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 9.9 Accounting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 9.10 Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 9.11 Non-liability of Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 9.12 CHOICE OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 9.13 CONSENT TO JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 9.14 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 9.15 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 9.16 Limitation of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 9.17 Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE X
THE AGENT
Section 10.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 10.2 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 10.3 General Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 10.4 No Responsibility for Loans, Recitals, etc. . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 10.5 Action on Instructions of Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 10.6 Employment of Agents and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 10.7 Reliance on Documents; Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 10.8 Agent's Reimbursement and Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . 64
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Section 10.9 Rights as a Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 10.10 Bank Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 10.11 Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 10.12 Collateral Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 10.13 Duties and Rights of Co-Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE XI
SETOFF; RATABLE PAYMENTS
Section 11.1 Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 11.2 Ratable Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
Section 12.1 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 12.2 Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 12.3 Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE XIII
NOTICES
Section 13.1 Giving Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 13.2 Change of Address . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE XIV
WAIVER OF JURY TRIAL
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This Credit Agreement, dated as of February __, 1996, is among
Jacor Communications, Inc., an Ohio corporation, the Banks (as defined below),
Banque Paribas, as Agent and each of The First National Bank of Boston and Bank
of America Illinois, as Co-Agents. The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated after the date of this Agreement, by which the Company
or any of the Subsidiaries (i) acquires any going business or assets of any
Person (other than assets acquired by the Company or any Subsidiary in the
ordinary course of its business), whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires at least fifty percent (50%)
in number of votes (in one transaction or as the most recent transaction in a
series of transactions), of the securities or other ownership interest in any
Person, other than, with respect to the Company, a Subsidiary of the Company
existing on the date hereof.
"Acquisition Certificate" means, with respect to any proposed
Acquisition, a certificate signed by an Authorized Officer of the Company in the
form of a compliance certificate showing the calculations necessary to
determine, after giving effect to such Acquisition, compliance with this
Agreement on a combined pro forma basis, both at the time of such proposed
Acquisition and for the twelve month period immediately following the date of
such Acquisition based upon pro forma projections for such twelve month period
immediately following the date of such Acquisition, and which shall also
certify, (i) the accuracy and completeness of the attached Acquisition Pro
Formas, and (ii) the accuracy of the matters set forth in clauses (c), (e), (f)
and (g) of the definition of "Permitted Acquisition", and with respect to the
matters set forth in clauses (f) and (g) of such definition, the calculations in
support thereof.
"Acquisition Pro Formas" shall mean, in connection with any
proposed Acquisition by the Company or any Subsidiary of a business engaged
primarily in radio broadcasting, a consolidated balance sheet, profit and loss
statement and cash flow statement of the Company and its Subsidiaries each in
reasonable detail and prepared in accordance with Generally Accepted Accounting
Principles consistently applied on a combined pro forma basis after giving
effect to the proposed Acquisition for the twelve-month period immediately
preceding such Acquisition.
"Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Loans made by the Banks to the Company on the
same Borrowing Date, at the same Rate Option and, in the case of Eurodollar Rate
borrowings hereunder, for the same Interest Period.
"Affiliate" means any Person directly or indirectly
controlling, controlled by or under direct or indirect common control with the
Person specified, whether by contract, understanding or otherwise. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or
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policies of the controlled Person, whether through ownership of stock, by
contract or otherwise.
"Agent" means Banque Paribas in its capacity as agent for the
Banks and the Co-Agents pursuant to Article X, and not in its individual
capacity as a Bank, and any successor Agent appointed pursuant to Article X.
"Aggregate Commitment" means, at any time of determination, the
aggregate of the Aggregate Revolving A Loan Commitment and the Aggregate
Revolving B Loan Commitment at such time.
"Aggregate Revolving A Loan Commitment" means, at any time of
determination, the aggregate of the Revolving A Loan Commitments of each of the
Banks at such time.
"Aggregate Revolving B Loan Commitment" means, at any time of
determination, the aggregate of the Revolving B Loan Commitments of each of the
Banks at such time.
"Agreement" means this Credit Agreement, as it may be amended,
modified, supplemented or restated and in effect from time to time.
"Agreement Accounting Principles" means United States generally
accepted principles of accounting as in effect on, and applied in a manner
consistent with, those used in preparing the audited December 31, 1994
consolidated financial statements of the Company and the Subsidiaries.
"Applicable Margin" means the respective percentages for each
Rate Option determined in accordance with the terms of Section 2.4.
"Applicable Rate" shall mean, at any time of determination, a
rate per annum equal to (i) if the Leverage Ratio is greater than or equal to
5.0 to 1.0 at such time, 0.50% and (i) if the Leverage Ratio is less than 5.0 to
1.0 at such time, 0.375%. The Applicable Rate shall be subject to adjustment
(upwards or downwards, as appropriate) based on the Leverage Ratio at the end of
each of the first three fiscal quarters and the fiscal year of the Company. For
purposes of determining the Applicable Rate, the Leverage Ratio shall be
determined (i) for the period from the Closing Date until the Company delivers
its monthly financial statements for the period ending as at March 31, 1996, by
determining Total Debt on the Closing Date after giving effect to the making of
the Loans and the consummation of the other Transactions which are consummated
on such date and by determining Operating Cash Flow for the twelve-month period
ending December 31, 1995, (ii) in the case of determinations made with respect
to the first three fiscal quarters of the Company's fiscal year, by reference to
the monthly financial statements for the month ending on the last day of such
fiscal quarter and the Compliance Certificate for such fiscal quarter delivered
pursuant to Sections 6.1(b) and (d) and (iii) in the case of determinations made
with respect to the last fiscal quarter of the Company's fiscal year, by
reference to the financial statements and Compliance Certificate delivered by
the Company pursuant to Sections 6.1(a) and (d), provided that for the purposes
of clauses (i), (ii) and (iii) above, for all periods prior to the purchase of
the Noble Stock pursuant to the Noble Stock Purchase and Warrant Redemption
Agreement, all calculations shall be made on a combined pro forma basis
(excluding the Noble Denver Stations unless they are subject to a Joint Sales
Agreement or a Local Marketing
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Agreement) as if such Noble Stock had been purchased on or prior to the first
day of such period, all as certified to by an Authorized Officer of the Company,
and attaching to such certificate, combined pro forma financial statements in
support of such calculations. The adjustment, if any, to the Applicable Rate
shall be effective commencing on the Business Day of the delivery of such
quarterly or annual financial statements and Compliance Certificate and shall be
effective only for the period subsequent to such date. In the event that the
Company shall at any time fail to furnish to the Banks the financial statements
and Compliance Certificate required to be delivered pursuant to Section 6.1(a),
(b) or (d), the maximum Applicable Rate shall apply until such time as such
financial statements and Compliance Certificate are so delivered to the Agent.
"Article" means an article of this Agreement unless another
document is specifically referenced.
"Authorized Officer" means any of the Chairman of the Board,
the President, the Treasurer or the Chief Financial Officer of the Company,
acting singly.
"Bank of Boston" means The First National Bank of Boston.
"Banks" means the banks and other Persons, other than the
Company, the Agent (in its capacity as Agent) and the Co-Agents (in their
capacities as Co-Agents), listed on the signature pages of this Agreement and
their respective successors and assigns as may be parties to any Notice of
Assignment executed pursuant to Section 12.3.
"Banque Paribas" shall mean Banque Paribas in its individual
capacity, and its successors and assigns.
"Base Rate" means a rate per annum at any time equal to the
greater of (i) base rate or prime rate of interest announced by the Agent from
time to time, changing when and as said corporate base rate or prime rate
changes and (ii) the Federal Funds Rate plus 1/2 of 1% per annum.
"Borrowing Date" means a date on which an Advance is made
hereunder.
"Borrowing Notice" is defined in Section 2.5.
"Broadcast Finance" means Broadcast Finance, Inc., an Ohio
corporation.
"Business Day" means (i) with respect to any borrowing, payment
or selection in respect of any Eurodollar Loan, a day other than Saturday or
Sunday on which banks are open for business in Chicago and New York and on which
dealings in U.S. Dollars are carried on in the interbank eurodollar market and
(ii) for all other purposes, a day other than Saturday or Sunday on which banks
are open for business in Chicago and New York.
"Capital Expenditures" shall mean, for any period, the sum of
expenditures, other than barter expenditures, (whether paid in cash or accrued
as a liability, including the portion of Capitalized Leases that is capitalized
on the consolidated balance sheet of the Company and the Subsidiaries
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during such period), by the Company and the Subsidiaries during such period
that, in conformity with Agreement Accounting Principles, are included in
"capital expenditures", "additions to property, plant or equipment" or
comparable items in the consolidated financial statements of the Company and the
Subsidiaries.
"Capitalized Lease" of a Person means any lease of property by
such Person as lessee which should be capitalized on a balance sheet of such
Person prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of
the obligations of such Person under Capitalized Leases which should be shown as
a liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Interest Expense" means, for any fiscal period of the
Company, the interest expense (including, without limitation, interest expense
attributable to Capitalized Leases in accordance with Agreement Accounting
Principles) of the Company and its Subsidiaries for such period, plus all
expenses incurred in connection with the payment of fees under any agreement
relating to indebtedness during such period (other than fees paid or payable
during such period pursuant to Section 2.11(a) or (b)), minus, to the extent
included in the foregoing, any such interest or fee expense not paid or payable
in cash during such period, minus interest income, plus any such interest or fee
expense accrued but not paid during any previous period and paid during such
period, in each case determined on a consolidated basis in accordance with
Agreement Accounting Principles.
"Citicasters L/C Documents" means the collective reference to
(i) a letter of credit, in an original principal amount not to exceed
$75,000,000, to be issued by the L/C Provider in favor of Citicasters, Inc. in
connection with the proposed acquisition by the Company of the assets and stock
of Citicasters, Inc., and (ii) a letter of credit reimbursement agreement
between the Company and the L/C Provider relating to the letter of credit
referred to in clause (i) above.
"Citicasters L/C Funding Date" means the date any amount is
paid to Citicasters, Inc. (or any of its Affiliates) under any of the
Citicasters L/C Documents.
"Closing Date" means, that date upon which all conditions
precedent to the effectiveness of this Agreement have occurred and the initial
Loans are made.
"Co-Agents" means the collective reference to the Bank of
Boston and the Bank of America Illinois, in their respective capacities as
co-agents for the Banks pursuant to Article X, and not in their respective
individual capacities as a Bank, and any successor Co-Agents appointed pursuant
to Article X.
"Collateral" means the collective reference to the "Collateral"
under and as defined in each of the Collateral Documents (other than the
Mortgages) and the "Property" under and as defined in each of the Mortgages.
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"Collateral Documents" means, collectively, the Subsidiary
Guaranty, the Company Pledge Agreement, the Company Security Agreement, the
Mortgages, the Subsidiary Security Agreement, the Subsidiary Pledge Agreements,
the Company Trademark Agreement, the Subsidiary Trademark Agreements, the Noble
Document Assignment, the Joint Sales Agreement Assignment, the Local Marketing
Agreement Assignment, the Mexican Assignment Agreements, and the Intercompany
Security Agreement and all ancillary documentation and agreements required
thereunder or executed and/or delivered by the Company or any Subsidiary to the
Agent or any Bank in connection therewith.
"Commitments" means, for each Bank, its Revolving A Loan
Commitment and its Revolving B Loan Commitment.
"Company" means Jacor Communications, Inc., an Ohio
corporation, and its successors and assigns.
"Company Mortgages" means collectively any mortgage or deed of
trust, each in substantially the form of Exhibit C-1 hereto, and duly completed,
executed and delivered by the Company pursuant to Section 2.17, as each such
mortgage or deed of trust may be amended, modified, supplemented or restated and
in effect from time to time.
"Company Plan" means a Plan that is sponsored,
maintained, or contributed to, by the Company or any Subsidiary, or to
which the Company or any Subsidiary has an obligation to contribute, for
employees of the Company or any Subsidiary.
"Company Pledge Agreement" means a pledge agreement in
substantially the form of Exhibit D-1 hereto, duly completed, executed and
delivered to the Agent by the Company, as the same may be amended, modified,
supplemented or restated and in effect from time to time.
"Company Security Agreement" means the security agreement in
substantially the form of Exhibit E-1 hereto, duly completed, executed and
delivered to the Agent by the Company, as the same may be amended, modified,
supplemented or restated and in effect from time to time.
"Company Trademark Agreement" means a trademark security
agreement in substantially the form of Exhibit N-1 hereto, duly completed,
executed and delivered to the Agent by the Company, as the same may be amended,
modified, supplemented or restated and in effect from time to time.
"Compliance Certificate" means a compliance certificate in
substantially the form of Exhibit F hereto, with appropriate insertions, signed
by an Authorized Officer of the Company, showing the calculations necessary to
determine compliance with this Agreement and stating that no Default or
Unmatured Default exists, or if any Default or Unmatured Default exists,
describing the nature thereof and any action the Company is taking or proposes
to take with respect thereto.
"Conversion/Continuation Notice" is defined in Section 2.14.
"Current Assets" shall mean, at any time, the current assets
(other than barter, deferred tax, cash and cash equivalents of the Company and
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its Subsidiaries at such time, determined on a consolidated basis in accordance
with Agreement Accounting Principles.
"Current Liabilities" shall mean, at any time, the current
liabilities (other than the current portion of all long-term Indebtedness of the
Company and its Subsidiaries at such time and other than barter and deferred tax
items), determined on a consolidated basis in accordance with Agreement
Accounting Principles.
"Debt Cash Proceeds" means all cash proceeds received by the
Company or any Subsidiary from the incurrence of any Indebtedness or the
issuance of any instruments relating to such Indebtedness, in each case net of
underwriting discounts, commissions and other reasonable fees, costs and
expenses associated therewith.
"Default" means an event described in Article VII.
"Default Rate" is defined in Section 2.3(c).
"Denver Proceeds" means, with respect any transfer, sale or
other disposition of (i) any assets of the Company or any of its Subsidiaries in
(or around) Denver, Colorado or with respect to any of its operations in (or
around) Denver, Colorado, or (ii) any rights to acquire, or any interest in, any
of the Noble Denver Stations, but only if such transfer, sale or disposition was
undertaken in connection with obtaining the Noble Approval, an amount of Net
Cash Proceeds which, after giving effect to any prepayment pursuant to Section
2.8(b) hereof, causes the Leverage Ratio to be below 5.00 to 1.00, provided
however, for the purposes of calculating such Leverage Ratio, and
notwithstanding clause (ii) of the second sentence of the definition of
Operating Cash Flow, Operating Cash Flow shall be calculated on a pro forma
consolidated basis as if such transfer, sale or other disposition occurred on
the first day of the applicable period of calculation and which calculation
shall give effect to any reconfiguration of any of the Noble Denver Stations or
the Radio Stations located in (or around) Denver, Colorado, which
reconfiguration was undertaken in connection with obtaining the Noble Approval.
"Disbursement Account" is defined in Section 6.29(a).
"Dispositions" is defined in Section 6.13.
"Environmental Claim" means any claim, action, cause of action,
investigation or notice (written or oral) by any person or entity alleging
potential liability (including, without limitation, potential liability for
investigatory costs, cleanup costs, governmental response costs, natural
resources damages, property damages, personal injuries, or penalties) arising
out of, based on or resulting from (a) the presence, or release into the
environment, of any Material of Environmental Concern at any location, whether
or not owned or operated by the Company or any Subsidiary or (b) circumstances
forming the basis of any violation, or alleged violation, of any Environmental
Law.
"Environmental Laws" means all federal, state, local and
foreign laws and regulations relating to pollution or protection of human health
or the environment (including, without limitation, ambient air, surface water,
ground water, land surface or subsurface strata), including, without limita-
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12
tion, laws and regulations relating to emissions, discharges, releases or
threatened releases of Materials of Environmental Concern, or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Materials of Environmental Concern.
"Employment Agreements" means the collective reference to (i)
that certain Employment Agreement dated as of February __, 1996 between the
Company and Xxxx Xxxxx, and (ii) that certain Employment Agreement dated as of
February __, 1996 between the Company and Xxxxx XxXxxxxxxxx, as each such
agreement may be amended, supplemented or otherwise modified from time to time
in accordance with Section 6.30 hereof.
"Equity Cash Proceeds" means all cash proceeds received by the
Company or any Subsidiary from the issuance of capital stock of the Company or
such Subsidiary or any issuance or exercise of rights, options or warrants to
acquire such capital stock, in each case net of underwriting discounts,
commissions and other reasonable fees, costs and expenses associated therewith
but excluding any exercise of stock options by any existing or previous
employees of the Company or any Subsidiary.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means, with respect to the Company or any
Subsidiary, any Person (or any trade or business, whether or not incorporated)
that is under common control with the Company or such Subsidiary within the
meaning of Section 414 of the Internal Revenue Code.
"Eurodollar Advance" means an Advance which bears interest at
the Eurodollar Rate for a particular Interest Period.
"Eurodollar Base Rate" means, with respect to a Eurodollar
Advance for the relevant Interest Period, the rate determined by the Agent to be
the rate at which deposits in U.S. dollars are offered by the Agent to
first-class banks in the interbank eurodollar market at approximately 11 a.m.
(Chicago time) two Business Days prior to the first day of such Interest Period,
in the approximate amount of the relevant Eurodollar Loan requested hereunder
and having a maturity approximately equal to such Interest Period.
"Eurodollar Loan" means a Loan which bears interest at the
Eurodollar Rate for a particular Interest Period.
"Eurodollar Rate" means, with respect to a Eurodollar Advance
for the relevant Interest Period, the sum of (i) the quotient of (a) the
Eurodollar Base Rate applicable to that Interest Period, divided by (b) one
minus the Reserve Requirement (expressed as a decimal) applicable to that
Interest Period, plus (ii) the Applicable Margin. The Eurodollar Rate shall be
rounded, if necessary, to the next higher 1/100 of 1%.
"Excess Cash Flow" means, for the period commencing January 1,
1997 and ending December 31, 1997 and thereafter for any fiscal year of the
Company, a positive amount, if any, equal to (i) Operating Cash Flow, plus (or
minus) (ii) decreases (or increases) in Working Capital from the first day of
such period to the last day of such period minus (iii) the sum of (without
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13
duplication) (A) scheduled principal payments made pursuant to scheduled
commitment reductions during such period on the Loans and other Indebtedness of
the Company and the Subsidiaries, (B) Cash Interest Expense and any other fees
and expenses paid in cash under the Loan Documents, (C) income and franchise
taxes paid or payable in cash during such period (other than taxes on amounts
recognized in connection with the sale or other Disposition made by the Company
or any Subsidiaries), (D) Capital Expenditures (to the extent permitted by
Section 6.18(b) through (f)) to the extent paid in cash or (E) Restricted
Payments paid in cash (to the extent made in reliance on Sections 6.10(iii) and
(iv)), all calculated for such fiscal year for the Company and the Subsidiaries
on a consolidated basis in accordance with Agreement Accounting Principles
consistently applied.
"Existing Debt" is defined in Section 5.18(b).
"Excluded Subsidiary" shall mean each of Jacor National Corp.,
a Delaware corporation, WIBX Incorporated, a New York corporation, Marathon
Communications, Inc., a New York corporation, Michigan Radio Inc., a Delaware
corporation and Jacor Cable, Inc. a Kentucky corporation.
"Existing Radio Expenditure Maximum" is defined in Section
6.18(b).
"FCC" means the Federal Communications Commission or any other
regulatory body which succeeds to the functions of the Federal Communications
Commission.
"FCC Broadcast Station License" means a broadcast station
license or series of licenses issued by the FCC for the dissemination of radio
communications intended to be received by the public and operated on a channel
in the AM or FM broadcast band.
"Federal Bankruptcy Code" means Title 11 of the United States
Code entitled "Bankruptcy", as amended from time to time, and any successor
statute or statutes.
"Federal Funds Rate" shall mean, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 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 Bank of Boston and the Bank of America Illinois on such day
on such transactions as determined by the Agent in its discretion.
"Fee Letter" is defined in Section 4.1(a)(xiii).
"Fixed Charges" means, for any fiscal period of the Company, an
amount equal to the sum of, without duplication, (i) Cash Interest Expense for
such period, plus (ii) principal payments due pursuant to scheduled commitment
reductions during such period on the Loans and other Indebtedness of the
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Company and the Subsidiaries, plus (iii) the principal component of all rents
accrued during such period in connection with Capitalized Leases under which the
Company or a Subsidiary is the lessee, plus (iv) income and franchise taxes paid
or payable in cash during such period (other than taxes on amounts recognized in
connection with Dispositions made by the Company or any Subsidiary) plus (v) all
cash Capital Expenditures (other than those permitted under Section 6.18(a))
made or required to be made during such period.
"Floating Rate" means a rate per annum equal to (i) the Base
Rate plus (ii) the Applicable Margin, in each case changing when and as the Base
Rate and/or the Applicable Margin changes.
"Floating Rate Advance" means an Advance which bears interest
at the Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the
Floating Rate.
"Generally Accepted Accounting Principles" means United States
generally accepted principles of accounting as in effect from time to time and
applied in a manner consistent with those used in preparing the audited December
31, 1994 consolidated financial statements of the Company and the Subsidiaries.
"Governmental Authority" shall mean any nation, state,
sovereign, or government, any federal, regional, state, local or political
subdivision and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
"Guaranty" of a Person means any agreement by which such Person
assumes, guarantees, endorses, contingently agrees to purchase or provide funds
for the payment of, or otherwise becomes liable upon, any Indebtedness, lease,
dividend or other obligation of any other Person in any manner, whether directly
or indirectly and whether such obligation is contingent or absolute, or agrees
to maintain the net worth or working capital or other financial condition of any
other Person or otherwise assures any creditor of such other Person against
loss, including, without limitation, any comfort letter, operating agreement or
take-or-pay contract to such effect, all obligations of such Person for the
liabilities or obligations of another under any Joint Sales Agreement, any Local
Marketing Agreement and the Mexican Sales Agency Agreement and the actual or
contingent liability of such Person in connection with any application for or
the issuance of any Letter of Credit, but shall exclude the endorsement of
instruments for deposit or collection in the ordinary course of business.
"Indebtedness" of a Person means, without duplication, such
Person's (i) obligations for borrowed money, (ii) obligations representing the
deferred purchase price of property or services other than accounts payable
arising in the ordinary course of such Person's business payable on terms
customary in the trade, (iii) payment obligations (contingent or otherwise),
whether or not assumed, which are secured by Liens or payable out of the
proceeds or production from property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, acceptances, or other
instruments evidencing indebtedness, (v) Capitalized Lease Obligations, (vi)
payment obligations (contingent or otherwise) arising under Non-Compete
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Agreements, (vii) payment obligations arising under agreements to repurchase
securities (but only when such obligations become due or during any period
during which the security holder has the right to cause such payment to become
due), (viii) obligations in connection with unreimbursed draws under Letters of
Credit, (ix) any payment obligations under any terminated swap agreements or
terminated interest rate hedging agreements and (x) any Guaranty of any of the
foregoing obligations provided, however, with respect to the Company or any of
its Subsidiaries, Indebtedness shall not include any obligations of the Company
or any of its Subsidiaries under the Citicasters L/C Documents until the
occurrence of the Citicasters L/C Funding Date.
"In-Market Acquisition" means any acquisition of any radio
stations, broadcast licenses, broadcast properties or other similar assets
located in, or providing service to, any location which, at the time of any such
acquisition, the Company or any of its Subsidiaries currently owns or operates
(pursuant to a Local Marketing Agreement or a Joint Sales Agreement) a radio
station.
"Intercompany Acquisition Loan" means a loan made by the
Company to any Subsidiary, which loan is made by the Company for the purpose of
funding (and the proceeds thereof have been applied to fund) a Permitted
Acquisition by such Subsidiary.
"Intercompany Acquisition Note" means an intercompany
acquisition demand note each in substantially the form of Exhibit G hereto and
duly completed, executed and delivered by any Subsidiary to evidence
Intercompany Acquisition Loans made to such Subsidiary, as the same may be
amended and in effect from time to time.
"Intercompany Demand Note" means the intercompany demand note
and the second consolidated amended and restated intercompany demand note, each
in substantially the form of Exhibit H-1 and Exhibit H-2 hereto, respectively,
and duly completed, executed and delivered by each of the Subsidiaries (other
than the Excluded Subsidiaries), respectively, as the same may be amended,
modified, supplemented, restated or replaced and in effect from time to time.
"Intercompany Security Agreement" means the second amended and
restated intercompany security agreement and financing statement in
substantially the form of Exhibit I hereto and duly completed, executed and
delivered by the Company and each of the Subsidiaries, other than the Excluded
Subsidiaries, as the same may be amended, modified, supplemented or restated
from time to time in conformity with the terms of this Agreement and in effect
from time to time.
"Interest Period" is defined in Section 2.7.
"Interest Rate Provider" shall mean any Bank (or any Affiliate
thereof) that provides an interest rate protection agreement to the Company
pursuant to Section 6.22 and that executes and delivers an agency agreement, in
form and substance satisfactory to the Agent.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and any successor statute.
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"Investment" of a Person means any loan, advance, extension of
credit (excluding accounts receivable arising in the ordinary course of business
on terms customary in the trade), deposit account or contribution of capital by
such Person to any other Person or any investment in, or purchase or other
acquisition of, the stock, notes, debentures or other securities of any other
Person made by such Person.
"Joint Sales Agreement" means an agreement between the Company
or one of its Subsidiaries and the holder of an FCC Broadcast Station License
(which holder is not the Company, any of its Subsidiaries or an Affiliate of
either of them) pursuant to which the Company or such Subsidiary (i) arranges to
purchase advertising time for a fee from the radio station owned by such holder
of such FCC Broadcast Station License, with such advertising time to be resold
by the Company or any such Subsidiary, (ii) provides or furnishes such resold
advertising time to be broadcast by such radio station and (iii) does not supply
programming material to such radio station.
"Joint Sales Agreement Assignment" means, with respect to each
Joint Sales Agreement with Noble (or any Affiliate of Noble), an assignment
agreement, substantially in the form of Exhibit B hereto, providing for the
assignment by the Company or a Subsidiary, as the case may be, of all of its
right, title and interest in such Joint Sales Agreement, in favor of the Agent
for the ratable benefit of the Banks, duly completed, executed and delivered to
the Agent by the Company and duly acknowledged by the other party (or parties)
to such Joint Sales Agreement, as the same may be amended, modified,
supplemented or restated and in effect from time to time.
"L/C Provider" means any financial institution (including,
without limitation, any Bank) which provides a letter of credit in connection
with the acquisition by the Company (or any of its Affiliates) of the stock
and/or assets of Citicasters, Inc.
"Lending Office" means any office, branch, subsidiary or
affiliate of any Bank or the Agent.
"Letter of Credit" of a Person means a letter of credit or
similar instrument which is issued upon the application of such Person or upon
which such Person is an account party or for which such Person is in any way
liable.
"Leverage Ratio" means, at any time of determination, the ratio
of (i) Total Debt as at the date of such determination to (ii) Operating Cash
Flow for the twelve consecutive fiscal months then most recently ended (unless
otherwise specified herein), all calculated for the Company and the Subsidiaries
on a consolidated basis in accordance with Agreement Accounting Principles
consistently applied.
"Lien" means any security interest, mortgage, pledge, lien
(statutory or other), claim, charge, encumbrance, conditional sale or title
retention agreement, lessor's interest under a Capitalized Lease or analogous
instrument, or preference or priority (other than a priority of payment) in, of
or on any Person's assets or properties in favor of any other Person or the
filing of any financing statement or similar instrument under the Uniform
Commercial Code or comparable law of any jurisdiction, domestic or foreign,
other than financing statements which have lapsed or for which duly executed
termination statements have been delivered to the Agent.
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"Loans" means, collectively, the Revolving A Loans and the
Revolving B Loans.
"Loan Documents" means this Agreement, the Notes, the
Collateral Documents, each Rate Hedging Agreement, each Intercompany Demand
Note, each Intercompany Acquisition Note, the Fee Letter, the Noble Documents,
the Employment Agreements, the Mexican Documents and any other ancillary
documentation and agreement required hereunder or thereunder or executed and/or
delivered by the Company or any Subsidiary to the Agent or any Bank in
connection herewith or therewith.
"Local Marketing Agreement" means, with respect to any radio
station, an agreement between the Company or one of its Subsidiaries and the
holder or sublicensee of the FCC Broadcast Station License relating to such
radio station (which holder is not the Company, any of its Subsidiaries or an
Affiliate of either of them), pursuant to which the Company or such Subsidiary,
subject to the control of such holder of such FCC Broadcast Station License, and
for the payment of a fee to such holder of such FCC Broadcast Station License,
(i) arranges to sell air time for such radio station, and (ii) supplies
personnel and programming material to such radio station.
"Local Marketing Agreement Assignment" means, with respect to
each Local Marketing Agreement with Noble (or any Affiliate of Noble), an
assignment agreement, substantially the form of Exhibit B hereto, providing for
the assignment by the Company or a Subsidiary, as the case may be, of all of its
right, title and interest in such Local Marketing Agreement, in favor of the
Agent for the ratable benefit of the Banks, duly completed, executed and
delivered to the Agent by the Company and duly acknowledged by the other party
(or parties) to such Local Marketing Agreement, as the same may be amended,
modified, supplemented or restated and in effect from time to time.
"Margin Regulations" means the collective reference to
Regulation G, Regulation T, Regulation U and Regulation X of the Board of
Governors of the Federal Reserve System from time to time in effect and shall
include any successor or other regulations or official interpretation of said
Board of Governors relating to the extension of credit or incurrence of
indebtedness for the purpose of purchasing or carrying margin stocks.
"Materials of Environmental Concern" means chemicals,
pollutants, contaminants, wastes, toxic substances, petroleum and petroleum
products.
"Mexican Assets Purchase Agreement" means that certain Asset
Purchase Agreement between _______________ and R.D.P with respect to the
purchase of the operating assets of XETRA-AM and XETRA-FM and the Mexican
Concession.
"Mexican Assignment Agreements" means the collective reference
to each of the Mexican Guaranty Assignment and the Mexican Sales Agency
Agreement Assignment.
"Mexican Concession" means concession titles granted by the
Ministry of Communications and Transportation and permits from the Ministry of
the Interior.
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"Mexican Documents" means the collective reference to the
Mexican Guaranty, the Mexican Assets Purchase Agreement and the Mexican Sales
Agency Agreement.
"Mexican Guaranty" means that certain joint and several Mexican
Guaranty by Conseco, a Indiana corporation, and Xxxx Xxxxx in favor of the
Company, pursuant to which each of the "Guarantors" (as defined therein) agree,
subject to the terms thereof, to pay the Company certain amounts upon the
occurrence of certain events.
"Mexican Guaranty Assignment" means, in respect of the Mexican
Guaranty, an assignment agreement, substantially the form of Exhibit B hereto,
providing for the assignment by the Company of all of its right, title and
interest in the Mexican Guaranty, in favor of the Agent for the ratable benefit
of the Banks, duly completed, executed and delivered to the Agent by the Company
and duly acknowledged by each "Guarantor" party to (and as defined in) such
Mexican Guaranty, as the same may be amended, modified, supplemented or restated
and in effect from time to time.
"Mexican Guaranty Grace Period" means the number of days
remaining during the period from the Closing Date, to but excluding the date
which is sixty (60) days following the Closing Date.
"Mexican Guaranty Proceeds" shall have the meaning set forth in
Section 2.8(c) hereof.
"Mexican Sales Agency Agreement" means the Exclusive Sales
Agency Agreement dated as of _______________ between R.D.P. and Noble (which
agreement has been assigned to Noble Broadcast of San Diego), including any
amendment thereto or replacement thereof (such amendment or replacement, as the
case may be, to be in form and substance satisfactory to the Agent).
"Mexican Sales Agency Agreement Assignment" means, in respect
of the Mexican Sales Agency Agreement, an assignment agreement, substantially
the form of Exhibit B hereto, providing for the assignment by Noble Broadcast of
San Diego of all of its right, title and interest in the Mexican Sales Agency
Agreement, duly completed, executed and delivered to the Agent by Noble
Broadcast of San Diego and duly acknowledged by the other party (or parties) to
such Mexican Sales Agency Agreement, as the same may be amended, modified,
supplemented or restated and in effect from time to time.
"Mortgages" means, collectively, the Company Mortgages and the
Subsidiary Mortgages.
"Multiemployer Plan" means a Plan maintained pursuant to a
collective bargaining agreement or any other arrangement to which the Company,
any Subsidiary or any ERISA Affiliate is a party and to which more than one
employer is obligated to make contributions.
"Net Cash Proceeds" is defined in Section 2.8(b).
"New Radio Expenditure Maximum" is defined in Section 6.18(c).
"New Station" is defined in Section 6.18(c).
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"New Station Capex Increase" means, with respect to any fiscal
year after the fiscal year in which a New Station is acquired, the product of
(i) $200,000 multiplied by (ii) the number of New Stations acquired prior to
such fiscal year (it being understood that multiple New Stations using a single
facility shall be deemed a single New Station for the purposes hereof).
"Noble" means Noble Broadcasting Group, Inc., a Delaware
Corporation.
"Noble Approval" means the approval by all governmental and
regulatory authorities (including, without limitation, the FCC) of (i) the
acquisition by the Company of the equity interests of Noble (as holder, through
its direct subsidiary, Noble Broadcast License, Inc. of the FCC Broadcast
Station Licenses for the Noble Stations) pursuant to the Noble Stock Purchase
and Warrant Redemption Agreement and (ii) the conversion of the Noble Warrants,
at Jacor's option, into voting Noble Stock pursuant to the Noble Stock Purchase
and Warrant Redemption Agreement.
"Noble Broadcast" means Noble Broadcast Center, Inc., a
California corporation.
"Noble Broadcast of San Diego" means Noble Broadcast of San
Diego, Inc., a California corporation.
"Noble-Company Credit Agreement" means that certain Credit
Agreement dated as of February ___ , 1996 between Broadcast Finance (as
"Lender") and Noble Holdings (as "Borrower") pursuant to which Broadcast Finance
(i) will make a term loan to Noble Holdings, on the Closing Date, of up to
$40,000,000, and (ii) will make, from time to time, revolving loans to Noble
Holdings in an amount not to exceed $1,000,000.
"Noble-Company Credit Agreement Guaranty" means that certain
subsidiary guaranty dated as of February ___ , 1996 by Noble Broadcast, Noble
Broadcast of Colorado, Inc., Noble Broadcast of St. Louis, Inc., Noble Broadcast
of Toledo, Inc., Nova Marketing Group, Inc., Noble Broadcast Licenses, Inc.,
Noble Broadcast of San Diego, Sports Radio, Inc. and Sports Radio Broadcasting,
Inc. in favor of Broadcast Finance.
"Noble-Company Security Documents" means the collective
reference to the Noble-Company Credit Agreement Guaranty and the Noble Pledge
Agreement.
"Noble Denver Stations" means the following stations located in
Denver, Colorado: KBCO-FM, KHIH-FM, KHOW-AM, AND KBCO-AM.
"Noble Documents" means the collective reference to the Noble
Warrants, the Noble Stock Purchase and Warrant Redemption Agreement, the Noble
Indemnification and Escrow Agreement, the Noble Stock Escrow and Security
Agreement, the Noble Registration Rights Agreement, the Noble Investment
Agreement, all Local Marketing Agreements and Joint Sales Agreements with
respect to the Noble Stations, the Noble-Company Credit Agreement, the
Noble-Company Security Documents and the San Diego Asset Purchase Agreement.
"Noble Document Assignment" means an assignment agreement
providing for the assignment by the Company of all of its right, title and
interest in the Noble Documents, in favor of the Agent for the ratable benefit
of the
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Banks, substantially in the form of Exhibit B hereto, duly completed, executed
and delivered to the Agent by the Company and duly acknowledged by Noble, as the
same may be amended, modified, supplemented or restated and in effect from time
to time.
"Noble Existing Indebtedness" means all of the Indebtedness of
Noble existing on the Closing Date before giving effect to the Transactions, as
more fully described on Schedule 1.1 hereto.
"Noble Holdings" means Noble Broadcast Holdings, Inc., a
Delaware corporation.
"Noble Indemnification and Escrow Agreement" means that certain
Indemnification and Escrow Agreement dated as of February ___ , 1996 by and
among the Company, Prudential Venture Partners II, L.P., Northeast Ventures, II,
Xxxx X. Xxxxx, Xxxxx X. XxXxxxxxxxx, CIHC, Inc., Bankers Life Holding
Corporation, Noble, Noble Broadcast of San Diego and the Fifth Third Bank.
"Noble Investment Agreement" means that certain Investment
agreement dated as of February ___ , 1996 by and between the Company, Noble,
Xxxx X. Xxxxx, Xxxxx X. XxXxxxxxxxx, Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxx
relating to the purchase by the Company of the Noble Warrants.
"Noble Pledge Agreement" means that certain Pledge Agreement
dated as of February ___ , 1996 by Noble Broadcast, Noble Broadcast Holdings,
Inc., Noble Broadcast of Colorado, Inc., Noble Broadcast of St. Louis, Inc.,
Noble Broadcast of Toledo, Inc., Nova Marketing Group, Inc., Noble Broadcast
Licenses, Inc., Noble Broadcast of San Diego, Sports Radio, Inc. and Sports
Radio Broadcasting, Inc. in favor of Broadcast Finance.
"Noble Registration Rights Agreement" means that certain
registration Rights Agreement dated as of February ___ , 1996 by and between the
Company and Noble.
"Noble Stations" means XETRA-FM, San Diego, California;
XETRA-AM, San Diego, California; KMJM-FM, St. Louis, Missouri; XXXX-FM, St.
Louis, Missouri; KNJZ-FM, St. Louis, Missouri; WVKS-FM, Toledo, Ohio; WRVF-FM,
Toledo, Ohio; WSPD-AM, Toledo, Ohio; and the Noble Denver Stations.
"Noble Stock" means all of the outstanding common stock
(including, without limitation, all Class A common stock and all Class B common
stock) of Noble.
"Noble Stock Escrow and Security Agreement" means that certain
Stock Escrow and Security Agreement dated as of February ___ , 1996 by and among
the Company, Prudential Venture Partners II, L.P., Northeast Ventures, II, Xxxx
X. Xxxxx, Xxxxx X. XxXxxxxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxx and the
Fifth Third Bank.
"Noble Stock Purchase and Warrant Redemption Agreement" means
that certain Stock Purchase and Stock and Warrant Redemption Agreement dated as
of February ___, 1996 by and among the Company, Prudential, Venture Partners II,
L.P., Northeast Ventures, II, Xxxx X. Xxxxx, Xxxxx X. XxXxxxxxxxx, Xxxxxx X.
Xxxxxxx, Xxxxxxx X. Xxxxxx, CIHC, Inc., Bankers Life Holding Corporation, and
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21
Noble, as the same may be amended in accordance with the provisions of Section
6.30 hereof.
"Noble Warrants" means warrants with respect to 75% of the
non-voting stock of Noble.
"Nobro" means Nobro, S.A. de C.V., a Mexican corporation.
"Non-Compete Agreements" means any agreement under which the
Company or any Subsidiary agrees to pay money to Persons in exchange for
agreements from such Persons to refrain from competing with the Company or any
Subsidiary in a certain line of business in a specific geographical area for a
certain time period, but shall not include any employment agreement which
contains a non-compete clause with respect to which no payment or other
consideration from the Company or any of the Subsidiaries is or will at any time
be due and owing, payable or otherwise contemplated or required.
"Notes" means, collectively, the Revolving A Notes and the
Revolving B Notes.
"Obligations" means (i) all unpaid principal of and accrued and
unpaid interest on the Loans, all accrued and unpaid fees and all other
obligations of the Company and/or its Subsidiaries to the Banks or to any Bank,
the Agent, any Interest Rate Provider, any Co-Agent or any other Person arising
under the Loan Documents (other than the Noble Documents), and (ii) all
obligations of the Company (or any of its Affiliates) to the L/C Provider
arising under the Citicasters L/C Documents.
"Operating Cash Flow" means, with respect to the Company and
its consolidated Subsidiaries, for any period of calculation, the remainder of
(A) the remainder of (x) the revenue for such period which is classified as net
revenue (other than barter revenue) in the profit and loss statements delivered
pursuant to Sections 6.1(a) and 6.1(b) minus (y) those expenses which are
classified as operating expenses (other than barter expense, interest expense,
depreciation, amortization, and non-cash extraordinary items) for such period in
the profit and loss statements delivered pursuant to Sections 6.1(a) and 6.1(b)
minus (B) those expenses (excluding barter expense) classified as corporate
expenses for such period in the profit and loss statements delivered pursuant to
Sections 6.1(a) and 6.1(b), all calculated for the Company and the Subsidiaries
on a consolidated basis in accordance with Agreement Accounting Principles
consistently applied. For purposes of determining the Leverage Ratio hereunder,
unless otherwise agreed to by the Required Banks, (i) in the case of any
Subsidiary or Radio Station acquired by the Company or any Subsidiary during any
period of calculation, Operating Cash Flow shall be adjusted to give effect to
such acquisition, as if such acquisition occurred on the first day of such
period, by increasing, if positive, or decreasing, if negative, Operating Cash
Flow by the Operating Cash Flow of such newly acquired Subsidiary or derived
from such Radio Station during such period prior to the date of such acquisition
on a combined pro forma basis (as adjusted to eliminate costs which would be
non-recurring expense items after giving effect to such acquisition, provided,
such adjustments shall be specified in reasonable detail in a certificate
executed by an Authorized Officer of the Company), and (ii) in the case of any
Subsidiary or Radio Station sold, transferred or otherwise disposed of by the
Company or any Subsidiary during any period of calculation, Operating Cash Flow
shall be adjusted to give effect to such
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22
sale, transfer or other disposition, as if such disposition occurred on the
first day of such period, by decreasing, if positive, or increasing, if
negative, Operating Cash Flow by the Operating Cash Flow of such Subsidiary or
derived from such Radio Station during such period prior to the date of such
disposition.
"PBGC" means the Pension Benefit Guaranty Corporation and its
successors and assigns.
"Permitted Acquisition" means, collectively, (i) the
Acquisition contemplated by the Noble Documents, (ii) the Acquisitions set forth
on Schedule 1.2 hereto, and (ii) at any time of determination, any other
Acquisition of a business engaged primarily in radio broadcasting by the Company
or any Subsidiary with respect to which each of the following requirements is
then met:
(a) Such Acquisition has been approved by the board of directors of
the entity to be acquired or, if such entity is in bankruptcy,
by the bankruptcy court having jurisdiction over the estate.
(b) As soon as available prior to consummation of such Acquisition,
the Company shall have furnished to the Agent for distribution
to each Bank (i) written notice describing such Acquisition,
(ii) all term sheets and other material draft and definitive
documentation relating to such Acquisition together with all
subsequent material revisions thereto and (iii) Acquisition
Pro-Formas relating to such Acquisition.
(c) Such Acquisition shall have been funded in its entirety with
the proceeds of a cash equity investment by holder(s) of the
capital stock of the Company (which equity investment shall
have been specifically earmarked for such Acquisition) or, if
such Acquisition is not so funded and if the Leverage Ratio of
the Company and its Subsidiaries would be greater than 5.0 to
1.00 after giving effect to such Acquisition (with, for the
purposes thereof, Operating Cash Flow calculated on a combined
pro forma basis for the twelve month period most recently ended
for which financial statements have been delivered pursuant to
Section 6.1 hereof), the Required Banks shall have given an
initial written consent to such Acquisition after their receipt
of initial draft documentation and Acquisition Pro Formas
relating to such Acquisition and, if such draft documentation
or Acquisition Pro Formas shall change in any material respect
prior to the consummation of such Acquisition, the Required
Banks shall have given their written consent to such changes,
provided however, without regard to the Leverage Ratio set
forth above in this clause (c), the consent of the Required
Banks shall not be required for In-Market Acquisitions, the
aggregate value of which do not exceed $40,000,000 during the
term of this Agreement. Each Bank agrees to use its reasonable
best efforts to respond to a Permitted Acquisition for which
its consent is required under this clause (c) within seven
Business Days of its receipt of initial documentation
conforming to the requirements hereof and Acquisition Pro
Formas pursuant to clause (b) above and to respond to any
subsequent revisions thereto within three Business Days of its
receipt thereof.
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23
(d) The Company, such Subsidiary and/or the entity to be acquired,
as appropriate, shall have executed and delivered and furnished
to the Agent and the Banks, concurrently with the consummation
of such Acquisition, such documents as shall be required
pursuant to Section 2.17 and, if such Acquisition is to be
consummated by a Subsidiary, such Subsidiary shall have
executed and delivered to the Company an Intercompany
Acquisition Note in a principal amount equal to the amount, if
any, of any Intercompany Acquisition Loan made by the Company
to such Subsidiary to fund such Acquisition, and such
Intercompany Acquisition Note shall have been duly pledged by
the Company to the Agent pursuant to the Company Pledge
Agreement.
(e) Prior to and after giving effect to such Acquisition, no
Default or Unmatured Default will exist.
(f) Without the prior written consent of the Required Banks, such
Acquisition would not cause Operating Cash Flow, on a combined
pro forma basis for the most recent twelve-month period after
giving effect to such Acquisition, attributable to the radio
broadcast market in which the to-be-acquired radio broadcast
station is located to exceed 40% of such pro forma Operating
Cash Flow of the Company and the Subsidiaries on a consolidated
basis.
(g) After giving effect to such Acquisition, the Company would not
be in violation of any financial covenant contained in Section
6.3 of this Agreement, in each case measured as at the
effective date of such Acquisition, and on a projected pro
forma basis for the remaining term of the Agreement, and in the
case of calculations of the Leverage Ratio, with Operating Cash
Flow measured on a combined pro forma basis for the twelve
month period most recently ended for which financial statements
have been delivered pursuant to Section 6.1 hereof.
(h) The Agent and the Banks shall have received (i) an executed
Acquisition Certificate, and (ii) evidence satisfactory to the
Agent and the Banks and their respective counsel that the
Company and the Subsidiaries shall have made all applications,
filings and registrations with the FCC and other federal, state
and local regulatory or governmental bodies or authorities that
are or may be required to obtain all approvals, orders,
authorizations, licenses, certificates and permits necessary
for the consummation of such Acquisition.
"Permitted Stock Repurchases" means repurchases by the 0
Company of the Company's stock which do not exceed, on an aggregate basis during
the term of this Agreement, an amount equal to, (a) $25,000,000 to the extent
the Leverage Ratio is below 5.00 to 1.00 (after giving effect to any such
proposed repurchase) on a pro forma consolidated basis for a period of two
consecutive quarters preceding such repurchase, or (b) $40,000,000 to the extent
the Leverage Ratio is below 4.00 to 1.00 (after giving effect to any such
proposed repurchase) on a pro forma consolidated basis for a period of two
consecutive quarters preceding such repurchase, provided that (i) no Permitted
Stock Repurchase shall occur at any time when the Leverage Ratio is at or above
5.00 to 1.00, and (ii) the amounts set forth in clauses (a) and (b) above shall
be
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reduced by an amount equal to the aggregate amount of voluntary redemptions by
the Company of its outstanding warrants pursuant to subclause (iv) of Section
6.10 hereof.
"Person" means any corporation, natural person, firm, joint
venture, partnership, trust, unincorporated organization, enterprise, government
or any department or agency of any government.
"Plan" means an employee pension benefit plan which is covered
by Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Internal Revenue Code and which is sponsored or maintained by the
Company, any Subsidiary or any ERISA Affiliate for employees of the Company, any
Subsidiary or any ERISA Affiliate.
"Proceeds Application Period" means, with respect to any
Permitted Acquisition, a period of up to 275 days from the date of receipt of
any Net Cash Proceeds, which 275 day period may be extended up to an additional
184 days (the "Extended Period") if the consummation of such Permitted
Acquisition is subject only to the approval of the FCC and, prior to the 275th
day after receipt of such Net Cash Proceeds, the Company or its applicable
Subsidiary, (a) has received a duly executed letter of intent with respect to
such Permitted Acquisition, and (b) is diligently proceeding with the
preparation of all applications and other documents necessary to obtain (and at
all times during the Extended Period continues to actively pursue) FCC approval
for such Permitted Acquisition.
"Pro Rata Share" means, at any time, with respect to any Bank,
the ratio (expressed as a percentage) that such Bank's Commitment at such time
bears to the Aggregate Commitment at such time.
"Radio Stations" means, collectively, the following radio
stations and radio network and any other broadcast radio stations or information
services now or hereafter owned, acquired or operated pursuant to a Joint Sales
Agreement, a Local Marketing Agreement or the Mexican Sales Agency Agreement, as
the case may be, by the Company and one or more Subsidiaries or by the Company
or one or more Subsidiaries: WGST-AM, Atlanta, Georgia; WGST-FM, Atlanta,
Georgia; WPCH-FM, Atlanta, Georgia; WLW-AM, Cincinnati, Ohio; WEBN-FM,
Cincinnati, Ohio; WCKY-AM, Cincinnati, Ohio; WSAI-AM, Cincinnati, Ohio; WOFX-FM,
Cincinnati, Ohio; WAQZ-FM, Cincinnati, Ohio; WAOZ-AM, Cincinnati, Ohio; KOA-AM,
Denver, Colorado; KRFX-FM, Denver, Colorado; KBPI-FM, Denver, Colorado; KTLK-AM,
Denver, Colorado; KTCL-FM, Denver, Colorado; WQIK-FM, Jacksonville, Florida;
WSOL-FM, Jacksonville, Florida; WJBT-FM, Jacksonville, Florida; WZAZ-AM,
Jacksonville, Florida; WJGR-AM, Jacksonville, Florida; KHTS-FM, San Diego,
California WMYU-FM, Knoxville, Tennessee; WWST-FM, Knoxville, Tennessee;
WFLA-AM, Tampa, Florida; WFLZ-FM, Tampa, Florida; WDUV-FM, Tampa, Florida;
WBRD-AM, Tampa, Florida; the Georgia News Network; Xxxxxxxx Xxxx Media, and the
Noble Stations (other than the Noble Denver Stations except to the extent set
forth in the immediately succeeding sentence). The term "Radio Stations" shall
also include the Noble Denver Stations to the extent (but only to the extent)
that the Company and its Subsidiaries, or the Company or any of its
Subsidiaries, currently owns or is operating (whether pursuant to a Joint Sales
Agreement, a Local Marketing Agreement or otherwise) the Noble Denver Stations.
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25
"Rate Hedging Agreements" means the collective reference to
those interest rate protection agreements entered into by the Company pursuant
to Section 6.22(a) of this Agreement as the same may be amended, modified,
supplemented or restated from time to time.
"Rate Option" means the Eurodollar Rate or the Floating Rate,
as the case may be.
"R.D.P." means Radiodifursora del Xxxxxxxx, X.X., a Mexican
Corporation.
"Receivables" means and shall include all of the Company's and
the Subsidiaries' present and future rights to payment for services rendered or
products sold.
"Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System from time to time in effect and shall include any
successor or other regulation or official interpretation of said Board of
Governors relating to reserve requirements applicable to member banks of the
Federal Reserve System.
"Rentals" of a Person means the aggregate fixed amounts (other
than taxes, insurance, maintenance, utility and other operating expenses)
payable by such Person under any lease of real or personal property having an
original term (including any required renewals or any renewals at the option of
the lessor or lessee, provided, however, that in those cases in which the lessee
has the option to renew the lease, the amount payable pursuant to such lease is
counted only when the lessee exercises its option to renew) of one year or more
but does not include any amounts payable under Capitalized Leases of such
Person.
"Reportable Event" means a reportable event as defined in
Section 4043 of ERISA and the regulations issued under such Section, with
respect to a Plan, excluding, however, such events as to which the PBGC by
regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event, provided that a failure
to meet the minimum funding standards of Section 412 of the Internal Revenue
Code and of Section 302 of ERISA shall be a reportable event regardless of the
issuance of any such waivers in accordance with Section 412(d) of the Internal
Revenue Code.
"Required Banks" means Banks having in the aggregate at least
66-2/3% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Banks holding in the aggregate at least 66-2/3% of the aggregate
unpaid principal amount of the outstanding Loans.
"Reserved Proceeds Amount" shall have the meaning set forth in
Section 2.8(b) hereto.
"Reserve Requirement" means, with respect to an Interest
Period, the maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves) which is imposed under Regulation D
on eurocurrency liabilities.
"Restricted Payments" is defined in Section 6.10.
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26
"Revolving A Loans" is defined in Section 2.1.
"Revolving A Loan Commitment" means, for each Bank, the
obligation of such Bank to make Revolving A Loans in an aggregate principal
amount at any time not exceeding the amount set forth opposite its name on
Schedule I hereto under the column titled "Revolving A Loan Commitment," as such
amount shall be reduced from time to time pursuant to the terms of this
Agreement.
"Revolving A Loan Commitment Reduction Amount" means, for each
Revolving A Loan Commitment Reduction Date and subject to Section 2.8(h), the
amount set forth opposite such Revolving A Loan Commitment Reduction Date:
On each Revolving A Loan Revolving A Loan
Commitment Reduction Date Occurring: Commitment Reduction Amount
------------------------------------ ---------------------------
After January 1, 1997 $2,500,000
but on or prior to December 31, 1997
After January 1, 1998 $3,750,000
but on or prior to December 31, 1998
After January 1, 1999 $5,312,500
but on or prior to December 31, 1999
After January 1, 2000 $6,375,000
but on or prior to December 31, 2000
After January 1, 2001 $7,225,000
but on or prior to December 31, 2001
After January 1, 2002 $8,200,000
but on or prior to December 31, 2002
After January 1, 2003, $14,137,500
but prior to December 31, 2003
"Revolving A Loan Commitment Reduction Date" means each March
31, June 30, September 30 and December 31 of each year, commencing with March
31, 1997, provided that the last Revolving A Loan Commitment Reduction Date
shall occur on December 31, 2003.
"Revolving A Loan Termination Date" shall mean December 31,
2003 or such earlier date as the Revolving A Loan Commitments of the Banks shall
be terminated pursuant to the terms of this Agreement.
"Revolving A Notes" means the collective reference to the
several promissory notes, each in substantially the form of Exhibit A-1 hereto,
duly completed, executed and delivered to the Agent by the Company and payable
to the order of each Bank in the amount of its original Revolving A Loan
Commitment, as each such note may be amended, modified, supplemented, restated
or replaced from time to time.
"Revolving B Loans" is defined in Section 2.2.
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27
"Revolving B Loan Commitment" means, for each Bank, the
obligation of such Bank to make Revolving B Loans in an aggregate principal
amount at any time not exceeding the amount set forth opposite its name on
Schedule I hereto under the column titled "Revolving B Loan Commitment," as such
amount shall be reduced from time to time pursuant to the terms of this
Agreement.
"Revolving B Loan Commitment Reduction Amount" means, for each
Revolving B Loan Commitment Reduction Date and subject to Section 2.8(h), the
amount set forth opposite such Revolving B Loan Commitment Reduction Date:
On each Revolving B Loan Revolving B Loan
Commitment Reduction Date Occurring: Commitment Reduction Amount
------------------------------------ ---------------------------
After January 1, 1998 $5,000,000
but on or prior to December 31, 1998
After January 1, 1999 $5,000,000
but on or prior to December 31, 1999
After January 1, 2000 $5,000,000
but on or prior to December 31, 2000
After January 1, 2001 $5,000,000
but on or prior to December 31, 2001
After January 1, 2002 $5,000,000
but on or prior to December 31, 2002
After January 1, 2003 $2,500,000
but on and prior to December 31, 2003
"Revolving B Loan Commitment Reduction Date" means each March
31, June 30, September 30 and December 31 of each year, commencing with March,
31 1998, provided that the last Revolving B Loan Commitment Reduction Date shall
occur on December 31, 2003.
"Revolving B Loan Termination Date" shall mean December 31,
2003 or such earlier date as the Revolving B Loan Commitments of the Banks shall
be terminated pursuant to the terms of this Agreement.
"Revolving B Notes" means the collective reference to the
several promissory notes, each in substantially the form of Exhibit A-2 hereto,
duly completed, executed and delivered to the Agent by the Company and payable
to the order of each Bank in the amount of its original Revolving B Loan
Commitment, as each such note may be amended, modified, supplemented, restated
or replaced from time to time.
"San Diego Asset Purchase Agreement" means that certain Asset
Purchase Agreement dated as of February __, 1996 by and among Chesapeake
Securities, Inc., Noble Broadcast of San Diego, Sports Radio, Inc., Noble
Broadcast Center, Inc. and Nobro, relating to the purchase by Chesapeake
Securities, Inc. of the San Diego Property as such agreement may be amended in
accordance with the provisions of Section 6.30 hereof.
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"San Diego Proceeds" means all Net Cash Proceeds realized from
any transfer, sale or other disposition of (i) any assets of the Company or any
of its Subsidiaries in (or around) San Diego, California, or with respect to is
operations in (or around) San Diego, California which were purchased pursuant to
the San Diego Asset Purchase Agreement, or (ii) the Company's or any of its
Subsidiaries interest in the San Diego Asset Purchase Agreement.
"San Diego Property" means the office and studio building,
land, towers, equipment, furniture and fixtures, contracts (including, without
limitation, the Mexican Sales Agency Agreement) and employment agreements of
Noble Broadcast of San Diego Sports Radio, Inc., Noble Broadcast Center, Inc.
and Nobro.
"Section" means a numbered section of this Agreement, unless
another document is specifically referenced.
"Solvent" as to any Person shall mean that (i) the sum of the
assets of such Person, both at a fair valuation and at present fair salable
value, will exceed its liabilities, including contingent liabilities, (ii) such
Person will have sufficient capital with which to conduct its business as
presently conducted and as proposed to be conducted and (iii) such Person has
not incurred debts, and does not intend to incur debts, beyond its ability to
pay such debts as they mature. For purposes of this definition, "debt" means any
liability on a claim, and "claim" means (x) a right to payment, whether or not
such right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured, or
unsecured, or (y) a right to an equitable remedy for breach of performance if
such breach gives rise to a payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured, or unsecured. With respect to any such contingent
liabilities, such liabilities shall be computed at the amount which, in light of
all the facts and circumstances existing at the time, represents the amount
which can reasonably be expected to become an actual or matured liability.
"Subsidiary" means (i) any corporation more than 50% of the
voting securities of which shall at the time be owned or controlled, directly or
indirectly, by the Company and/or by one or more of the Subsidiaries and (ii)
any partnership, association, joint venture or other entity in which the Company
and/or one or more of its Subsidiaries is either a general partner or has a 50%
or more equity interest at the time.
"Subsidiary Guaranty" means a guaranty in substantially the
form of Exhibit J hereto, duly completed, executed and delivered to the Agent by
each Subsidiary (other than the Excluded Subsidiaries), as the same may be
amended or modified and in effect from time to time.
"Subsidiary Mortgages" means, collectively, (i) the mortgages
in substantially the form of Exhibits C-2, C-3, C-4 and C-5 hereto, duly
completed, executed and delivered to the Agent by Jacor Broadcasting of Florida,
Inc., Jacor Broadcasting of Tampa Bay, Inc., Jacor Broadcasting of Atlanta,
Inc., Jacor Broadcasting of Colorado, Inc., and Jacor Broadcasting Corporation,
covering the real property located in Xxxxx County, Florida, Hillsborough
County, Florida, St. Xxxxx County, Florida, Manatee County, Florida, Xxxxxx
County, Georgia, Xxxxxxx County, Colorado, Weld County
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Colorado and Xxxxxx County, Ohio, Xxxxxxxx Counnty, Ohio, respectively, and (ii)
any other mortgage or deed of trust hereinafter delivered by a Subsidiary
pursuant to Section 2.17, as each such mortgage or deed of trust may be amended,
modified, supplemented or restated and in effect from time to time.
"Subsidiary Pledge Agreements" means, collectively, (i) a
subsidiary primary pledge agreement in the form of Exhibit D-2 and Exhibit D-3,
duly completed, executed and delivered to the Agent by Jacor Broadcasting of
Atlanta, Inc. and Chesapeake Securities, Inc. respectively, (ii) a subsidiary
secondary pledge agreement in the form of Exhibit D-4 and Exhibit D-5, duly
completed, executed and delivered to the Agent by Jacor Broadcasting of Atlanta,
Inc. and Chesapeake Securities, Inc., respectively, and (iii) any other
subsidiary pledge agreement substantially in the form of Exhibit D-2 or D-4
hereto, as the case may be, duly completed, executed and delivered by a
Subsidiary pursuant to Section 2.17, as the same may be amended, modified,
supplemented or restated from time to time.
"Subsidiary Security Agreement" means a security agreement in
substantially the form of Exhibit E-2 hereto, duly completed, executed and
delivered to the Agent by each Subsidiary other than the Excluded Subsidiaries,
as the same may be amended, modified, supplemented or restated and in effect
from time to time.
"Subsidiary Trademark Agreements" means, collectively, (i) the
subsidiary trademark security agreement in the form of Exhibit N-2, duly
completed, executed and delivered to the Agent by Jacor Broadcasting of Tampa
Bay, Inc. and (ii) any other subsidiary trademark security agreement
substantially in the form of Exhibit N-2 hereto, duly completed, executed and
delivered by a Subsidiary pursuant to Section 2.17, as the same may be amended,
modified, supplemented or restated from time to time.
"Surviving Debt" is defined in Section 5.18(b).
"Total Debt" means, at any time of determination and without
duplication, the sum of (i) the aggregate principal amount of the Loans and any
due and unpaid interest thereon at such time and (ii) the principal component of
Indebtedness of the Company and the Subsidiaries of the type set forth in the
definition of "Indebtedness" contained herein.
"Transactions" is defined in Section 4.1(l).
"Transferee" is defined in Section 12.3.3.
"Unfunded Liabilities" means (i) in the case of Plans that are
not Multiemployer Plans, the amount (if any) by which the present value of all
benefit liabilities (as defined in Section 4001(a) of ERISA) under such Plan
exceeds the fair market value of all Plan assets allocable to such benefit
liabilities, all determined as of the then most recent valuation date for such
Plan, and (ii) in the case of Multiemployer Plans, the withdrawal liability of
the Company and the Subsidiaries.
"Unmatured Default" means an event which but for the lapse of
time or the giving of notice, or both, would constitute a Default.
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"Wholly-Owned Subsidiary" means any Subsidiary all of the
outstanding voting securities of which shall at the time be owned or controlled,
directly or indirectly, by the Company or one or more Wholly-Owned Subsidiaries.
"Working Capital" shall mean at any time an amount equal to
Current Assets minus Current Liabilities at such time.
"Z/C" means Xxxx/Chilmark Fund, L.P., a Delaware limited
partnership and its successors and assigns.
The foregoing definitions shall be equally applicable to both
the singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
Section 1 Revolving A Loans.
(a) From and including the Closing Date to but excluding
the Revolving A Loan Termination Date, each Bank severally agrees, on the terms
and subject to the conditions set forth in this Agreement, to make Loans to the
Company from time to time (the "Revolving A Loans") in an aggregate amount
outstanding at any time not to exceed its Revolving A Loan Commitment. The
Revolving A Loan Commitment of each Bank shall be automatically and permanently
reduced (i) on each Revolving A Loan Commitment Reduction Date in an amount
equal to such Bank's Pro-Rata Share of the applicable Revolving A Loan
Commitment Reduction Amount for such Revolving A Loan Commitment Reduction Date,
and (ii) in accordance with the terms and provisions of Section 2.8(h).
(b) The Revolving A Loans shall be evidenced by the
Revolving A Notes.
(c) The Revolving A Loans shall be Floating Rate Loans
or, at the Company's option and subject to the terms hereof, Eurodollar Loans.
(d) Subject to the mandatory repayment obligations of the
Company provided for in this Agreement, the Revolving A Loans shall be repaid to
the Banks in full on the Revolving A Loan Termination Date. Within the limits
and subject to the terms and conditions herein set forth, Revolving A Loans may
be borrowed, repaid and reborrowed from time to time.
(e) The Company shall use the proceeds of the Revolving A
Loans for the following purposes: (i) to repay its obligations with respect to
the Existing Debt, (ii) for the purchase of the San Diego Property pursuant to
the San Diego Asset Purchase Agreement, (iii) to purchase the Noble Warrants
pursuant to the Noble Stock Purchase and Warrant Redemption Agreement, and (iv)
to repay Noble's existing indebtedness (A) under a credit agreement with Chase
Manhattan, N.A. as agent, and (B) to Barclays Business Credit, Inc. (or its
successor). In addition, the Revolving A Loans may be used for working capital
and other general corporate purposes, and to the extent applicable pursuant to
Section 2.8(b), for Permitted Acquisitions during the Proceeds Application
Period.
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Section 2 Revolving B Loans.
(a) From and including the Closing Date to but excluding
the Revolving B Loan Termination Date, each Bank severally agrees, on the terms
and subject to the conditions set forth in this Agreement, to make Loans to the
Company from time to time (the "Revolving B Loans") in an aggregate amount
outstanding at any time not to exceed its Revolving B Loan Commitment. The
Revolving B Loan Commitment of each Bank shall be automatically and permanently
reduced on each Revolving B Loan Commitment Reduction Date in an amount equal to
such Bank's Pro-Rata Share of the applicable Revolving B Loan Commitment
Reduction Amount for such Revolving B Loan Commitment Reduction Date.
(b) The Revolving B Loans shall be evidenced by the
Revolving B Notes.
(c) The Revolving B Loans shall be Floating Rate Loans
or, at the Company's option and subject to the terms hereof, Eurodollar Loans.
(d) Subject to the mandatory repayment obligations of the
Company provided for in this Agreement, the Revolving B Loans shall be repaid to
the Banks in full on the Revolving B Loan Termination Date. Within the limits
and subject to the terms and conditions herein set forth, Revolving B Loans may
be borrowed, repaid and reborrowed from time to time.
(e) The Company may use the proceeds of the Revolving B
Loans to fund Permitted Acquisitions, Permitted Stock Repurchases, for working
capital and other general corporate purposes, and to the extent applicable
pursuant to Section 2.8(b), for Permitted Acquisitions during the Proceeds
Application Period. Notwithstanding the foregoing, the Company shall only use up
to $14,000,000 of the proceeds from the Revolving B Loans to purchase the Noble
Stock pursuant to the Noble Stock Purchase and Warrant Redemption Agreement.
Section 3 Interest.
(a) The Company agrees to pay interest in respect of the
unpaid principal amount of each Floating Rate Loan from the date of the making
or conversion of such Loan until such Loan shall be paid in full at a rate per
annum equal to the Floating Rate, such interest to be computed on the basis of a
365- or 366-day year, as appropriate.
(b) The Company agrees to pay interest in respect of the
unpaid principal amount of each Eurodollar Loan from the date of the making,
continuation or conversion of such Loan until such Loan shall be paid in full at
a rate per annum which shall be equal to the Eurodollar Rate, such interest to
be computed on the basis of a 360-day year.
(c) In the event that, and for so long as, any Default
shall have occurred and be continuing, the outstanding principal amount of all
Loans and, to the extent permitted by law, overdue interest in respect of all
Loans, shall bear interest at a rate per annum (the "Default Rate") equal to the
sum of two percent (2%) plus the interest rate otherwise applicable hereunder to
such principal amount in effect from time to time.
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(d) Interest on each Loan shall accrue from and including
the date of the borrowing thereof to but excluding the date of any repayment
thereof (provided that any Loan borrowed and repaid on the same day shall accrue
one day's interest) and shall be payable (i) in respect of each Floating Rate
Loan, quarterly in arrears on the last day of each March, June, September and
December of each year, commencing on Xxxxx 00, 0000, (xx) in respect of each
Eurodollar Loan, on the last day of each Interest Period applicable to such Loan
and, in the case of an Interest Period of six months, on the date occurring
three months from the first day of such Interest Period and on the last day of
such Interest Period, and (iii) in the case of all Loans, on any prepayment or
conversion (on the amount prepaid or converted), at maturity (whether by
acceleration or otherwise) and, after such maturity, on demand.
Section 4 Applicable Margin. The Applicable Margin shall be
subject to adjustment (upwards or downwards, as appropriate) based on the
Leverage Ratio at the end of each of the first three fiscal quarters and the
fiscal year of the Company. The Leverage Ratio shall be determined (i) for the
period from the Closing Date until the Company delivers its monthly financial
statements for the period ending as at March 31, 1996, by determining Total Debt
on the Closing Date after giving effect to the making of the Loans and the
consummation of the other Transactions which are consummated on such date and by
determining Operating Cash Flow for the twelve-month period ending December 31,
1995, (ii) in the case of determinations made with respect to the first three
fiscal quarters of the Company's fiscal year thereafter, by reference to the
monthly financial statements for the month ending on the last day of such fiscal
quarter and the Compliance Certificate for such fiscal quarter delivered
pursuant to Sections 6.1(b) and (d) and (iii) in the case of determinations made
with respect to the last fiscal quarter of the Company's fiscal year, by
reference to the financial statements and Compliance Certificate delivered by
the Company pursuant to Sections 6.1(a) and (d), provided that for the purposes
of clauses (i), (ii) and (iii) above, for all periods prior to the purchase of
the Noble Stock pursuant to the Noble Stock Purchase and Warrant Redemption
Agreement, all calculations shall be made on a combined pro forma basis
(excluding the Noble Denver Stations other than, to the extent applicable, the
Noble Denver Stations which are subject to a Local Marketing Agreement) as if
such Noble Stock had been purchased on or prior to the first day of such period,
all as certified to by an Authorized Officer of the Company, and attaching to
such certificate, combined pro forma financial statements in support of such
calculations. The adjustment, if any, to the Applicable Margin shall be
effective commencing on the fifth Business Day after the delivery of such
quarterly or annual financial statements and Compliance Certificate and shall be
effective only for the period subsequent to such date. In the event that the
Company shall at any time fail to furnish to the Banks the financial statements
and Compliance Certificate required to be delivered pursuant to Section 6.1(a),
(b) or (d), the maximum Applicable Margin shall apply until such time as such
financial statements and Compliance Certificate are so delivered to the Agent.
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Applicable Margin
-----------------
Floating Eurodollar
Leverage Ratio Rate Rate
-------------- -------- ----------
Greater than or equal to 6.5:1.0 1.750% 3.000%
Less than 6.5:1.0 but greater than or equal to 1.500% 2.750%
6.25:1.00
Less than 6.25:1.0 but greater than or equal to 1.375% 2.625%
6.0:1.0
Less than 6.0:1.0 but greater than or equal to 1.125% 2.375%
5.5:1.0
Less than 5.5:1.0 but greater than or equal to 0.875% 2.125%
5.0:1.0
Less than 5.0:1 but greater than or equal to 0.625% 1.875%
4.5:1.0
Less than 4.5:1 but greater than or equal to 0.375% 1.625%
4.0:1.0
Less than 4.0:1 but greater than or equal to 0.000% 1.250%
3.5:1.0
Less than 3.5:1.0 0.000% 1.000%
Section 5 Borrowing Notice. Whenever the Company desires to
borrow Revolving A Loans or Revolving B Loans hereunder, it shall give the Agent
at or prior to 10:00 A.M., Chicago time, at least one Business Day's prior
facsimile or telephonic notice (promptly confirmed in writing) of each Floating
Rate Loan, and at least three Business Days' prior facsimile or telephonic
notice (promptly confirmed in writing) of each Eurodollar Loan to be made
hereunder. Each such notice (a "Borrowing Notice") shall be irrevocable and
shall specify (i) the aggregate principal amount of the requested Loans, (ii)
whether such Loans shall be Revolving A Loans or Revolving B Loans, (iii) the
date of borrowing (which shall be a Business Day), and (iv) whether such Loans
shall consist of Floating Rate Loans or Eurodollar Loans and, if Eurodollar
Loans, the initial Interest Period to be applicable thereto. Promptly after its
receipt of a Borrowing Notice, the Agent shall provide each Bank with a copy
thereof and inform each Bank as to its Pro Rata Share of the Advance requested
thereunder.
Section 6 Disbursement of Funds.
(a) No later than noon, Chicago time, on the date
specified in each Borrowing Notice, each Bank will make available its Pro Rata
Share of the Advance requested to be made on such date, in U.S. dollars and
immediately available funds, to the Agent. After the Agent's receipt of the
proceeds of such Loans, the Agent will make available to the Company the
aggregate of the amounts so made available in the type of funds actually
received.
(b) Unless the Agent shall have been notified by any Bank
prior to the date of a borrowing that such Bank does not intend to make avail-
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able to the Agent its portion of the Loans to be made on such date, the Agent
may assume that such Bank has made such amount available to the Agent on such
date and the Agent in its sole discretion may, in reliance upon such assumption,
make available to the Company a corresponding amount. If such corresponding
amount is not in fact made available to the Agent by such Bank and the Agent has
made such amount available to the Company, the Agent shall be entitled to
recover such corresponding amount on demand from such Bank. If such Bank does
not pay such corresponding amount forthwith upon the Agent's demand therefor,
the Agent shall promptly notify the Company and the Company shall immediately
repay such corresponding amount to the Agent. The Agent shall also be entitled
to recover from such Bank or the Company, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Agent to the Company to the date such
corresponding amount is recovered by the Agent, at a rate per annum equal to,
with respect to the Company, the then applicable rate of interest, calculated in
accordance with Section 2.3, for the respective Loans and with respect to the
Banks, the Federal Funds Rate. Nothing herein shall be deemed to relieve any
Bank from its obligation to fulfill its commitments hereunder or to prejudice
any rights which the Company may have against any Bank as a result of any
default by such Bank hereunder. Notwithstanding anything contained herein or in
any other Loan Document to the contrary, the Agent may apply all funds received
from the Company and proceeds of Collateral available for the payment of any
Obligations first to repay any amount owing by any Bank to the Agent as a result
of such Bank's failure to fund its Loans hereunder.
Section 7 Interest Periods, etc.
(a) The Company shall, in each Borrowing Notice or
Conversion/Continuation Notice in respect of the making of, conversion into or
continuation of a Eurodollar Loan, select the interest period (each an "Interest
Period") applicable to such Eurodollar Loan, which Interest Period shall, at the
option of the Company, be either a one-month, two- month, three-month or
six-month period, provided that:
(i) the initial Interest Period for any Eurodollar Loan
shall commence on the date of the making of such Loan (including the date
of any conversion from a Floating Rate Loan) and each Interest Period
occurring thereafter in respect of such Loan shall commence on the date on
which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on a
day which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day, provided, however, that if any Interest
Period would otherwise expire on a day which is not a Business Day but is a
day of the month after which no further Business Day occurs in such month,
such Interest Period shall expire on the next preceding Business Day;
(iii) if any Interest Period begins 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
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shall end on the last Business Day of such calendar month;
(iv) no Interest Period in respect of any Revolving A
Loan or Revolving B Loan shall extend beyond the Revolving A Loan Termi-
nation Date or the Revolving B Loan Termination Date, as the case may be;
and
(v) no Interest Period applicable to any Revolving A Loan
or Revolving B Loan shall extend beyond any Revolving A Loan Commitment
Reduction Date or Revolving B Loan Commitment Reduction Date, respec-
tively, unless the aggregate principal amount of Revolving A Loans or
Revolving B Loans, respectively, represented by Floating Rate Loans or by
Fixed Rate Loans having Interest Periods which will not expire on or before
such date equals or is less than the amount of the Revolving A Loan
Commitment or Revolving B Loan Commitment, respectively, in effect
immediately after the Revolving A Loan Commitment Reduction Date or
Revolving B Loan Commitment Reduction Date, respectively.
(b) If upon the expiration of any Interest Period, the
Company has failed to repay the Eurodollar Loans expiring on such day or has
failed to elect a new Interest Period to be applicable to the respective
Eurodollar Loan as provided above, the Company shall be deemed to have elected
to convert such Eurodollar Loans into Floating Rate Loans effective as of the
expiration date of such current Interest Period.
(c) Notwithstanding anything contained herein to the
contrary, the Company may not borrow any Eurodollar Loan if, at the time of such
borrowing, a Default or Unmatured Default shall have occurred and be continuing
on such date either before or after giving effect to the borrowing.
Section 8 Mandatory Principal Payments.
(a) If on any day the aggregate principal amount of the
Revolving A Loans or the Revolving B Loans then outstanding exceeds the
Aggregate Revolving A Loan Commitment or the Aggregate Revolving B Loan
Commitment, respectively, the Company shall immediately repay the Revolving A
Loans or the Revolving B Loans, as the case may be, in an amount equal to such
excess.
(b) Promptly, but in any event within two Business Days
after the sale, transfer or other disposition after the Closing Date (including,
without limitation, any disposition accomplished by way of a merger or a series
of transactions) of any property, asset or business (including, without
limitation, any Radio Station) to any Person other than the Company or any
Subsidiary (excluding any sale, transfer or other disposition of (A) inventory
in the ordinary course of business, and (B) used, worn-out or obsolete equipment
no longer useful to the business in the ordinary course of business to the
extent that an amount equal to the net cash proceeds realized therefrom is used
to purchase replacement or substitute equipment within 180 days), the Company
shall make a mandatory payment in respect of the Obligations in an amount equal
to 100% of the net cash proceeds (after taxes, reasonable fees and reasonable
expenses incurred directly in connection therewith) realized from such sales,
transfers or other dispositions occurring after the Closing
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Date, all as certified to by an Authorized Officer of the Company (collectively,
"Net Cash Proceeds"). Notwithstanding the foregoing mandatory prepayment, in
connection with a Permitted Acquisition during the Proceeds Application Period,
the Company may deliver a Borrowing Notice pursuant to which the Company may
request a Revolving A Loan in an amount up to the amount of Net Cash Proceeds
(less any Denver Proceeds and any San Diego Proceeds included in such Net Cash
Proceeds) realized from any transfer, sale or other disposition, which amount
shall be applied solely to fund a Permitted Acquisition (the "Reserved Proceeds
Amount"). To the extent that the requested Reserved Proceeds Amount is in excess
of the then remaining Aggregate Revolving A Loan Commitment (the amount by which
such request exceeds the remaining Aggregate Revolving A Loan Commitment, the
"Shortfall Amount"), the Company may include in the Borrowing Notice a request
for a Revolving B Loan in the amount of such Shortfall Amount. Any such request
pursuant to this Section 2.8(b) for a Revolving A Loan, and to the extent
applicable, a Revolving B Loan, in an aggregate principal amount up to the
Reserved Proceeds Amount, shall be subject to all other terms and provisions of
this Agreement, including, without limitation, the other provisions of this
Article II and the satisfaction of the conditions to all Loans set forth in
Section 4.2 hereof. All mandatory payments of the Obligations made pursuant to
this subsection (b) shall be applied as set forth in subsection (h) below.
(c) Within two Business days of the receipt by the
Company or any Subsidiary of any proceeds from the Mexican Guaranty, the Company
shall make a mandatory prepayment in an amount equal to 100% of the net cash
proceeds (after taxes, reasonable fees and reasonable expenses incurred directly
in connection therewith) realized from such Mexican Guaranty, all as certified
to by an Authorized Officer of the Company (the "Mexican Guaranty Proceeds").
Any prepayment of the Obligations pursuant to this subsection (c) shall be
applied as set forth in subsection (h) below.
(d) Within seven Business Days of (i) the receipt by the
Company or any of its Subsidiaries of any Equity Cash Proceeds in excess of
$2,000,000 during any fiscal year, the Company shall make a mandatory prepayment
with respect to the Obligations in an amount equal to up to 50% of such Equity
Cash Proceeds until such time as the amount of such mandatory prepayment, after
giving effect to such mandatory prepayment, shall cause the Leverage Ratio of
the Company to be equal to (or less than) 5.0 to 1.0., or (ii) the receipt by
the Company or any of its Subsidiaries of any Debt Cash Proceeds, the Company
shall make a mandatory prepayment with respect to the Obligations in an amount
equal to 100% of such Debt Cash Proceeds. Any prepayment of the Obligations
pursuant to this subsection (d) shall be applied as set forth in subsection (h)
below.
(e) Within 90 days of the end of any fiscal year of the
Company, commencing with the fiscal year ending December 31, 1997, the Company
shall make a mandatory prepayment with respect to the Obligations in an amount
equal to 50% of the Excess Cash Flow of the Company, provided, however, with
respect to Excess Cash Flow, no such mandatory prepayment shall be required if,
for the previous two consecutive quarters, the Leverage Ratio of the Company
shall have been less than 4.0 to 1.00. Any prepayment of the Obligations
pursuant to this subsection (e) shall be applied as set forth in subsection (h)
below.
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(f) For the purposes of determining Net Cash Proceeds,
Mexican Guaranty Proceeds, Equity Cash Proceeds and Debt Cash Proceeds, the
Company or a Subsidiary shall be deemed to have received in cash the aggregate
amount of all payments received by the Company or any Subsidiary on any
contract, promissory note or other instrument taken or effected in connection
with any sale, transfer or other disposition of any property asset or business
or equity securities, as the case may be, at the time such cash payment is
received.
(g) The Company shall make a mandatory payment with
respect to the Obligations in an amount equal to any proceeds received by the
Company or any Subsidiary from damage, boiler, machinery and business
interruption insurance or from any condemnation claim or award if and to the
extent that such proceeds, claims or awards are not promptly applied to the
restoration, repair or replacement of the properties so affected, and in any
event to the extent that such proceeds, claims or awards have not been so
applied in full within 180 days. Within two Business Days of receipt of any tax
refund by the Company or any Subsidiary, the Company shall make a mandatory
payment with respect to the Obligations in an amount equal to any proceeds from
such tax refund. Any prepayment of the Obligations pursuant to this subsection
(g) shall be applied as set forth in subsection (h) below.
(h) Mandatory payments made pursuant to subsections (b),
(c), (d), (e) and (g) of this Section 2.8 shall be applied first to repay the
Revolving A Loans until the Revolving A Loans are paid in full, second to repay
the Revolving B Loans until the Revolving B Loans are repaid in full and third
to all other outstanding Obligations. Simultaneously with any mandatory
repayment of the Revolving A Loans, each Bank's Revolving A Loan Commitment
shall, (i) with respect to any such mandatory prepayment (other than pursuant
Section 2.8(b)), be permanently reduced, or (ii) in the case of a mandatory
repayment pursuant to Section 2.8(b), be temporarily suspended, in each case, in
an amount equal to such Bank's Pro Rata Share of such prepayment, and the
Revolving A Loan Commitment Reduction Amount for each Revolving A Loan
Commitment Reduction Date occurring after the date of such mandatory payment
shall be reduced in an amount equal to the product of the amount of such
mandatory payment times the ratio (expressed as a percentage) that such
Revolving A Loan Commitment Reduction Amount bears to the sum of all of the
Revolving A Loan Commitment Reduction Amounts remaining prior to the Revolving A
Loan Termination Date. If during the Proceeds Application Period the Company
delivers a Borrowing Notice pursuant to Section 2.8(b) in connection with a
Permitted Acquisition, the temporary suspension of each Bank's Revolving A Loan
Commitment shall be released in an amount equal to such Bank's Pro Rata Share of
the Reserved Proceeds Amount, provided that such release of such temporary
suspension shall not cause any Bank's Revolving A Loan Commitment to exceed the
amount of such Bank's Revolving A Loan Commitment at such time after giving
effect to any scheduled reductions of such Bank's Revolving A Loan Commitment
pursuant to the terms of this Agreement. In connection with the release of the
suspension of each Bank's Revolving A Loan Commitment pursuant to the
immediately preceding sentence, the Revolving A Loan Commitment Reduction Amount
for each Revolving A Loan Commitment Reduction Date occurring after the date of
such release shall be proportionally readjusted based upon the Reserved Proceeds
Amount which will be borrowed as a Revolving A Loan. Upon the expiration of any
Proceeds Application Period, the temporary suspension of each Bank's Revolving A
Loan Commitment referred to in the second sentence of this Section 2.8(h) shall
become permanent with respect to
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each Bank's Pro Rata Share of the unused portion (if any) of the Reserved
Proceeds Amount relating to such Proceeds Application Period. Simultaneously
with any mandatory repayment of the Revolving B Loans, each Bank's Revolving B
Loan Commitment shall be permanently reduced in an amount equal to such Bank's
Pro Rata Share of such prepayment, and the Revolving B Loan Commitment Reduction
Amount for each Revolving B Loan Commitment Reduction Date occurring after the
date of such mandatory payment shall be reduced in an amount equal to the
product of (i) the amount of such mandatory payment times the ratio (expressed
as a percentage) that such Revolving B Loan Commitment Reduction Amount bears to
the sum of all of the Revolving B Loan Commitment Reduction Amounts remaining
prior to the Revolving B Loan Termination Date.
(i) Mandatory payments made pursuant to this Section 2.8
of the Revolving A Loans or of the Revolving B Loans shall be accomplished by
the payment first of such Loans or portion thereof constituting Floating Rate
Loans and second by the payment of such Loans or portion thereof constituting
Eurodollar Rate Loans.
Section 9 Optional Principal Payments and Reductions of
Commitments.
(a) The Company may from time to time pay all outstanding
Floating Rate Advances, or, in a minimum aggregate amount of $1,000,000, or any
integral multiple of $500,000 in excess thereof, any portion of the outstanding
Floating Rate Advances, upon one Business Day's prior notice to the Agent,
without penalty or premium. The Company may from time to time pay all
outstanding Eurodollar Advances, or, in a minimum aggregate amount of
$1,000,000, or any integral multiple thereof, any portion of the outstanding
Eurodollar Advances, upon one Business Day's prior written notice to the Agent,
provided, however, (i) such optional prepayment shall only be made on the last
day of the Interest Period relevant to such Eurodollar Advances, and (ii) after
giving effect to such optional prepayment, each outstanding Eurodollar Advance
shall be in a minimum amount of $1,500,000.
(b) Upon at least one Business Day's prior irrevocable
written notice to the Agent (which notice the Agent shall promptly transmit to
each of the Banks), the Company shall have the right, without premium or
penalty, to permanently reduce each Bank's Pro Rata Share of the Aggregate
Revolving A Loan Commitment or the Aggregate Revolving B Loan Commitment,
provided that any such partial reduction shall be in a minimum aggregate amount
of $5,000,000 or an integral multiple of $1,000,000 in excess thereof.
Section 10 Method and Place of Payment.
(a) Except as otherwise specifically provided herein, all
payments and prepayments under this Agreement and the Notes shall be made to the
Agent for the account of the Banks entitled thereto not later than 12:00 noon,
Chicago time, on the date when due and shall be made in lawful money of the
United States of America in immediately available funds at the Agent's office
specified pursuant to Article XIII, and any funds received by the Agent after
such time shall, for all purposes hereof (including the following sentence), be
deemed to have been paid on the next succeeding Business Day. Except as
otherwise specifically provided herein, the Agent shall thereafter cause to be
distributed on the date of receipt thereof to each Bank in like funds its Pro
Rata Share of payments so received.
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(b) Whenever any payment to be made hereunder or under
any Note shall be stated to be due on a day which is not a Business Day, the due
date thereof shall be extended to the next succeeding Business Day and, with
respect to payments of principal, interest shall be payable at the applicable
rate during such extension.
(c) All payments made by the Company hereunder and under
the other Loan Documents shall be made irrespective of, and without any
reduction for, any setoff or counterclaims.
Section 11 Fees. (a) The Company agrees to pay to the Agent for
the account of the Persons entitled thereto, fees in the amounts and at the
times set forth in the Fee Letter.
(b) The Company agrees to pay to the Agent for the
pro-rata account of the Banks in accordance with their respective Commitments a
commitment fee, computed at the Applicable Rate on the average daily unused
portion of the Aggregate Commitment until the Aggregate Commitments have been
terminated, payable quarterly in arrears and on the Revolving A Loan Termination
Date and the Revolving B Loan Termination Date, as the case may be, or such
earlier date, if any, on which the Aggregate Commitments shall terminate in
accordance with the terms hereof and calculated on the basis of a 365- or
366-day year, as appropriate, for the number of actual days elapsed. For the
purposes of calculating the average daily unused portion of the Aggregate
Commitments, the Revolving A Loan Commitment shall not be deemed to be reduced
by any Net Cash Proceeds applied to any mandatory prepayment pursuant to Section
2.8(b) hereof until such time as the Proceeds Application Period relating to
such Net Cash Proceeds has expired.
Section 12 Notes; Recordkeeping. Each Bank is hereby authorized
to record the principal amount of its Revolving A Loans and its Revolving B
Loans and each repayment thereof on the schedule attached to its applicable Note
or to record the same on its book and records and the Company agrees that such
schedules or books and records shall constitute binding and conclusive evidence
of the accuracy of the information contained therein absent manifest error,
provided, however, that the failure of any Bank to so record such information
shall not affect the Company's obligations hereunder or under such Notes.
Section 13 Minimum Advances. Each Floating Rate Advance shall
be in a minimum amount of $1,000,000 or in an integral multiple of $500,000 in
excess thereof, provided, that any Floating Rate Advance may be in the amount of
the unused Aggregate Revolving A Loan Commitment or the Aggregate Revolving B
Loan Commitment, as the case may be. Each Eurodollar Rate Advance and all
conversions to and continuations of Eurodollar Loans shall be in a minimum
amount of $2,000,000 or in an integral multiple of $1,000,000 in excess thereof,
provided that at no time may there be more than twelve (12) Eurodollar Rate
Advances outstanding at any time.
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Section 14 Eurodollar Rate Conversion and Continuation.
(a) Subject to the other provisions hereof, the Company
shall have the option (i) to convert at any time all or any part of outstanding
Floating Rate Loans which comprise part of the same Advance to Eurodollar Loans,
(ii) to convert all or any part of outstanding Eurodollar Loans which comprise
part of the same Advance to Floating Rate Loans, on the expiration date of the
Interest Period applicable thereto, or (iii) to continue all or any part of
outstanding Eurodollar Loans which comprise part of the same Advance as
Eurodollar Loans for an additional Interest Period, on the expiration of the
Interest Period applicable thereto; provided that no Loan may be continued as,
or converted into, a Eurodollar Loan when any Default or Unmatured Default has
occurred and is continuing.
(b) In order to elect to convert or continue a Loan under
this Section 2.14, the Company shall deliver an irrevocable notice thereof (a
"Conversion/Continuation Notice") to the Agent no later than 10:00 A.M., Chicago
time, (i) at least one Business Day in advance of the proposed conversion date
in the case of a conversion to a Floating Rate Loan and (ii) at least three
Business Days in advance of the proposed conversion or continuation date in the
case of a conversion to, or a continuation of, a Eurodollar Loan. A
Conversion/Continuation Notice shall specify (w) the requested conversion or
continuation date (which shall be a Business Day), (x) the amount and the type
of Loan to be converted or continued, (y) whether a conversion or continuation
is requested, and (z) in the case of a conversion to, or a continuation of, a
Eurodollar Loan, the requested Interest Period. Promptly after receipt of a
Conversion/Continuation Notice under this Section 2.14(b), the Agent shall
provide each Bank with a copy thereof.
Section 15 Lending Offices. Each Bank may book all or any
portion of any Loan at any Lending Office selected by such Bank and may change
its Lending Office from time to time. All terms of this Agreement shall apply to
any such Lending Office and the Notes shall be deemed held by each Bank for the
benefit of such Lending Office. Each Bank may, by written or telex notice to the
Agent and the Company, designate a Lending Office through which and for whose
account payments in respect of the Obligations are to be made.
Section 16 Non-Receipt of Funds by the Agent. Unless the
Company notifies the Agent prior to the date on which it is scheduled to make
payment to the Agent of a payment of principal, interest or fees to the Agent
for the account of the Banks, that it does not intend to make such payment, the
Agent may assume that such payment has been made. The Agent may, but shall not
be obligated to, make the amount of such payment available to the intended
recipient in reliance upon such assumption. If the Company has not in fact made
such payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to the Federal Funds Rate.
Section 17 Collateral Security.
(a) As security for the payment of the Obligations, the
Company shall cause to be granted to the Agent, for the ratable benefit of the
Banks, a Lien on and security interest in all of the following, whether now or
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hereafter existing or acquired: (i) all of the shares of capital stock of the
Subsidiaries now or hereafter directly owned by the Company and all proceeds
thereof, all as more specifically described in the Company Pledge Agreement;
(ii) certain of the assets of the Company and all proceeds thereof, all as more
specifically described in the Company Security Agreement, the Company Trademark
Agreement, the Company Mortgages, the Noble Document Assignment, the Mexican
Assignment Agreements, and each Joint Sales Agreement Assignment and Local
Marketing Agreement Assignment to which the Company is a party; and (iii)
certain of the assets of the Subsidiaries now or hereafter directly or
indirectly owned by the Company and all proceeds thereof, all as more
specifically described in the Subsidiary Security Agreement, the Subsidiary
Trademark Agreement, the Subsidiary Pledge Agreements, the Subsidiary Mortgages,
each Joint Sales Agreement Assignment and each Local Marketing Agreement
Assignment to which each Subsidiary is a party.
(b) Concurrently with the consummation of any Permitted
Acquisition or the formation of any new Subsidiary of the Company which is
permitted hereunder, the Company shall
(vi) in the case of a Permitted Acquisition of stock
by the Company or any Subsidiary or the formation of a new Subsidiary: (A)
deliver or cause to be delivered to the Agent all of the certificates
representing the capital stock (or other instruments or securities
evidencing ownership) of such new Subsidiary which is being acquired or
formed, beneficially owned by the Company or such Subsidiary, as additional
collateral for the Obligations, to be held by the Agent in accordance with
the terms of the Company Pledge Agreement or a Subsidiary Pledge Agreement,
as the case may be; and (B) cause such new Subsidiary which is being
acquired or formed to deliver to the Agent (1) duly executed counterpart
signature pages to each of the Subsidiary Guaranty, the Subsidiary Security
Agreement and the Intercompany Security Agreement, in the forms attached
respectively thereto as Annex I, together with the authorization to the
Agent and the Banks to attach such signature pages to the Subsidiary
Guaranty, the Subsidiary Security Agreement and the Intercompany Security
Agreement, respectively, the effect of which shall be that as of the date
set forth on such signature pages such new Subsidiary shall become a party
to each such agreement and be bound by the terms thereof, (2) if such
Subsidiary owns any capital stock of any other Subsidiary, a Subsidiary
Pledge Agreement, (3) if such Subsidiary owns any U.S. registered
trademarks, a Subsidiary Trademark Agreement, (4) an Intercompany Demand
Note, duly endorsed, pledged and delivered to the Agent under the Company
Pledge Agreement, (5) such Uniform Commercial Code financing statements as
shall be required to perfect the security interest of the Agent and the
Banks in the Collateral being pledged by such new Subsidiary pursuant to
the Subsidiary Security Agreement and (6) unless otherwise agreed to in
writing by the Required Banks, a Subsidiary Mortgage, together with such
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title insurance policies, surveys and 5 appraisals as the Required Banks
may have reasonably requested;
(vii) in the case of a Permitted Acquisition of
assets by the Company or any Subsidiary, deliver or cause to be delivered
by the Company or such Subsidiary acquiring such assets, (A) such Uniform
Commercial Code financing statements as shall be required to perfect the
security interest of the Agent and the Banks in the assets being so
acquired and (B) unless otherwise agreed to in writing by the Required
Banks, a Company Mortgage or Subsidiary Mortgage, as the case may be,
together with such title insurance policies, surveys and appraisals as the
Required Banks may have reasonably requested; and
(viii) in any case, provide such other documentation,
including, without limitation, one or more opinions of counsel reasonably
satisfactory to the Required Banks, articles of incorporation, by-laws and
resolutions, which in the reasonable opinion of the Required Banks is
necessary or advisable in connection with such Permitted Acquisition or
formation of such new Subsidiary.
Section 18 Further Assistance. In connection with any exercise
by the Agent or any Bank of its rights and remedies under the Collateral
Documents, it may be necessary to obtain the prior consent or approval of
certain Persons, including but not limited to the FCC and other public utility
regulatory agencies and governmental authorities. Upon the exercise by the Agent
or any Bank of any power, right, privilege or remedy pursuant to any Collateral
Document, applicable law or otherwise which requires any consent, approval,
registration, qualification or authorization of any Person, the Company will,
upon request by the Agent, execute and deliver, or will cause the execution and
delivery of, all applications, certificates, instruments, and other documents
and papers that the Agent or such Bank determine may be required to obtain for
such consent, approval, registration, qualification or authorization. Without
limiting the generality of the foregoing, the Company will use its best efforts
to obtain from the appropriate Persons the necessary consents and approvals, if
any: (1) for the transfer of control, if required for the effectuation of clause
(2) below, to the Agent, the Banks or their respective nominees or transferees
upon the occurrence of a Default, of any permit, license or authorization in
respect of the operation of any Radio Station; (2) for the effectuation of any
sale or sales of Pledged Stock (as defined in the Company Pledge Agreement
and/or the Subsidiary Pledge Agreements) upon the occurrence of a Default; and
(3) for the exercise of any other right or remedy of the Agent or any Bank under
any Collateral Document, applicable law or otherwise. The Agent and the Banks
will cooperate with the Company in preparing the filing with the FCC and any
other Persons of all requisite applications required to be obtained by the
Company under this Section 2.18.
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ARTICLE III
CHANGE IN CIRCUMSTANCES
Section 1 Yield Protection. If any law or any governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law), or any regulatory interpretation thereof, or compliance of any
Bank with such (which has been adopted or changed after the date hereof),
(i) imposes or increases or deems applicable any
reserve, assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the account of, or
credit extended by, any Bank or any applicable Lending Office (other than
reserves and assessments taken into account in determining the interest
rate applicable to any Eurodollar Loan), or
(ii) imposes any other condition the result of which
is to increase the cost to any Bank or any applicable Lending Office of
making, funding or maintaining any Eurodollar Loan or reduces any amount
receivable by any Bank or any applicable Lending Office in connection with
any such Eurodollar Loan, or requires any Bank or any applicable Lending
Office to make any payment calculated by reference to the amount of any
Eurodollar Loan made or interest received by it, by an amount deemed
material by such Bank, or
(iii) affects the amount of capital required or
expected to be maintained by any Bank or Lending Office or any corporation
controlling any Bank and such Bank determines the amount of capital
required is increased by or based upon the existence of this Agreement, the
Loans or of commitments of this type,
then, within 15 days of demand by such Bank made together with the presentation
to the Company of a certificate of such Bank complying with Section 3.5 hereof,
the Company shall pay such Bank that portion of such increased expense incurred
(including, in the case of Section 3.1(iii), any reduction in the rate of return
on capital to an amount below that which it could have achieved but for such
change in regulation after taking into account such Bank's policies as to
capital adequacy) or reduction in an amount received which such Bank reasonably
determines is attributable to making, funding and maintaining its Obligations.
3.2. Taxes.
(a) Except as required by law, all payments made by the
Company under this Agreement shall be made free and clear of, and without
reduction for or on account of, any present or future taxes, levies, imposts,
duties, charges, fees, deductions, or withholdings, imposed, levied, collected,
withheld or assessed by any Governmental Authority after the Closing Date as a
result of the adoption of or any change in any law, treaty, rule, regulation,
guideline or determination of such Governmental Authority, but excluding (i) net
income, franchise and branch profits taxes, imposed on the Agent or a Bank by
(x) the United States of America or any taxing authority
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thereof or therein, (y) the jurisdiction under the laws of which the Agent or
such Bank is organized or in which it has its principal office or is managed and
controlled or any political subdivision or taxing authority thereof or therein,
or (z) any jurisdiction in which the Lending Office of any Bank making and
maintaining Loans to the Company, is located or any political subdivision or
taxing authority thereof or therein, and (ii) any taxes, levies, imposts,
duties, charges, fees, deductions or withholdings arising after the date of this
Agreement, solely as the immediate result of such Bank (x) changing its
designated Lending Office as of the Closing Date to a Lending Office located in
any other jurisdiction or (y) designating an additional Lending Office located
in any other jurisdiction (such non-excluded taxes, levies, imposts, duties,
charges, fees, deduction and withholdings being called "Taxes"). If any Taxes
are required to be withheld from any amounts payable to the Agent or any Bank
hereunder or under the Notes, the amounts so payable to the Agent or such Bank
shall be increased to the extent necessary to yield to the Agent or such Bank
(after payment of all Taxes, including Taxes attributable to such increase, and
free and clear of all liability, including, without limitation, interest and
penalties, in respect of such Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement and the
Notes. Whenever any Taxes are payable by the Company, as promptly as possible
thereafter, the Company shall pay such Taxes. If the Company fails to pay Taxes
when due to the appropriate taxing authority the Company shall indemnify the
Agent and the Bank for any incremental Taxes, interest or penalties that may
become payable by the Agent or any Bank as a result of any such failure together
with any expenses payable by the Agent or Bank in connection therewith. If the
Company is required to make any additional payment to the Agent or any Bank
pursuant to this Section 3.2, and any such Bank receives, or is entitled to
receive, a credit against or relief or remission for, or repayment of, any tax
paid or payable by it in respect of, or calculated with reference to the Taxes
giving rise to such payment, such Bank shall, within a reasonable time of the
earlier of the date that it receives or is entitled to receive such credit,
relief, remission or repayment, use its reasonable efforts to reimburse the
Company the amount of any such credit, relief, remission or repayment to the
extent not inconsistent with such Bank's internal policies. If any Taxes
constituting a withholding tax of the United States of America or any other
Governmental Authority shall be or become applicable, after the Closing Date, to
such payments by the Company to a Bank, such Bank shall to the extent not
inconsistent with such Bank's internal policies use its reasonable efforts to
make, fund and maintain its Loans through a Lending Office of such Bank located
in another jurisdiction so as to reduce the Company's liability hereunder, and
if, as determined by such Bank, in its sole discretion, the making, funding or
maintenance of such Loans through such other Lending Office does not otherwise
materially adversely affect such Loans or such Bank.
(b) Prior to or at the Closing Date, (i) each Bank that
is not incorporated under the laws of the United States of America or a state
thereof shall deliver to the Agent (and the Agent agrees that it will deliver to
the Company) two duly completed copies of the United States Internal Revenue
Service Form 1001 or 4224 or successor applicable form, as the case may be,
certifying in each case that such Bank is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal
income taxes, and (ii) each Bank will deliver to the Agent (and the Agent will
deliver to the Company) an Internal Revenue Service Form W-8 or W-9 or successor
applicable form, as the case may be, to establish an exemption
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from United States backup withholding tax. Each Bank which delivers to the
Company and the Agent a Form 1001 or 4224 and Form W-8 or W-9 pursuant to the
preceding sentence further undertakes, if requested by the Company, to deliver
to the Company and the Agent two further copies of said statement or Form 1001
or 4224 and Form W-8 or W-9, or successor applicable forms, or other manner of
certification, as the case may be, on or before the date that any such statement
or form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent statement or form previously delivered by
it to the Company, and such extension or renewals thereof as may reasonably be
requested by the Company, certifying in the case of a Form 1001 or 4224 that
such Bank is entitled to receive payments under this Agreement without deduction
or withholding of any United States federal income taxes, unless in any such
case any change in treaty, law or regulation has occurred prior to the date on
which any such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent a Bank or the Agent from duly completing and
delivering any such statement or form with respect to it and such Bank or Agent
advises the Company that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax and, in the case of
a Form W-8 or W-9, establishing an exemption from United States backup
withholding tax. The Company shall not be required to pay any increased amount
on account of Taxes pursuant to this Section 3.2 to any Bank, Transferee or
Agent that fails to furnish any form or statement that it was required to
furnish in accordance with this Section 3.2 or Section 12.3.4, and, to the
extent required by law, the Company shall be entitled to deduct Taxes from the
payments owed to such Bank, Transferee or Agent.
3.3. Availability of Rate Options. If any Bank determines that
maintenance of its Eurodollar Loans at a suitable Lending Office would violate
any applicable law, rule, regulation, or directive, whether or not having the
force of law, or determines that (i) deposits of a type and maturity appropriate
to match fund any Eurodollar Loan are not available or (ii) the Eurodollar Rate
does not accurately reflect the cost of making or maintaining any Eurodollar
Loan, then (unless such unavailability or inaccuracy results solely from a
deterioration in the creditworthiness of such Bank subsequent to the date
hereof) the Agent shall suspend the availability of Eurodollar Loans from such
Bank and require the interest rate applicable to any Eurodollar Loan by such
Bank then outstanding to be changed to the Floating Rate.
3.4. Funding Indemnification. If any payment in respect of any
Eurodollar Loan occurs on a date which is not the last day of the applicable
Eurodollar Interest Period, whether because of acceleration, prepayment or
otherwise, if an Advance related to, or conversion from or into or in
continuation of, Eurodollar Loans does not occur on a date specified therefor in
a Borrowing Notice or a Conversion/Continuation Notice the Company will
indemnify each Bank for any loss or cost incurred by it resulting therefrom upon
request by such Bank accompanied by a certificate complying with Section 3.5
below.
3.5. Bank Certificates; Survival of Indemnity. To the extent
reasonably possible, so long as the Company has any liquidated liability to any
Bank under Section 3.1, such Bank shall designate an alternate Lending Office
with respect to its Eurodollar Loans to reduce any such liability, so long as
such designation is not disadvantageous to such Bank. A certificate of a Bank as
to the amount due under Section 3.1 or 3.4 (which certificate
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shall, if so requested by the Company, include an explanation of the basis used
by such Bank in calculating such amount) shall be delivered within 120 days
after a responsible account officer of the Bank obtains actual knowledge of the
event giving rise thereto and shall be final, conclusive and binding on the
Company in the absence of manifest error. Determination of amounts payable under
such Sections in connection with any Bank's Eurodollar Loans shall be calculated
as though each Bank funded its Pro Rata Share of any Eurodollar Advance through
the purchase of a deposit of the type and maturity corresponding to the deposit
used as a reference in determining the Eurodollar Rate applicable to such
Eurodollar Loan, whether in fact that is the case or not. Unless otherwise
provided herein, the amount specified in the certificate shall be payable on
demand after receipt by the Company of the certificate. The obligations of the
Company under Sections 3.1 and 3.4 shall survive payment of the Obligations and
termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
Section 1 Conditions Precedent to Initial Loans. The
obligations of the Banks to make their initial Loans hereunder are subject to
the satisfaction on the Closing Date of the following conditions precedent:
(a) Loan Documents.
(i) Credit Agreement. The Company shall have duly
executed and delivered this Agreement to the Agent.
(ii) Notes. The Company shall have duly executed and
delivered to each of the Banks the appropriate Revolving A Note and
Revolving B Note in the amount, maturity and as otherwise provided herein.
(iii) Company Security Agreement. The Company shall
have duly executed and delivered to the Agent the Company Security
Agreement.
(iv) Company Pledge Agreement. The Company shall have
duly executed and delivered to the Agent the Company Pledge Agreement.
(v) Company Trademark Agreement. The Company shall
have duly executed and delivered to the Agent the Company Trademark
Agreement.
(vi) Subsidiary Guaranty. Each Subsidiary (other than
the Excluded Subsidiaries) shall have duly executed and delivered to the
Agent the Subsidiary Guaranty.
(vii) Subsidiary Security Agreement. Each
Subsidiary (other than the Excluded Subsidiaries) shall have duly executed
and delivered to the Agent the Subsidiary Security Agreement.
(viii) Subsidiary Pledge Agreements. Each of Jacor
Broadcasting of Atlanta, Inc. and Chesapeake Securities, Inc. shall have
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duly executed and delivered to the Agent a Subsidiary Pledge Agreement.
(ix) Subsidiary Trademark Agreement. Jacor
Broadcasting of Tampa Bay, Inc. shall have duly executed and delivered to
the Agent the Subsidiary Trademark Agreement.
(x) Subsidiary Mortgages. Each appropriate Subsidiary
shall have duly executed and delivered to the Agent each Subsidiary
Mortgage.
(xi) Intercompany Demand Notes. Each of the Sub-
sidiaries (other than the Excluded Subsidiaries) shall have duly executed
and delivered to the Company the Intercompany Demand Note to which it is a
party, and the Company shall have delivered each such Intercompany Demand
Note, duly endorsed in blank, to the Agent pursuant to the terms of the
Company Pledge Agreement.
(xii) Intercompany Security Agreement. Each of the
Subsidiaries (other than the Excluded Subsidiaries) shall have duly
executed and delivered to the Company the Intercompany Security Agreement.
(xiii) Fee Letter. The Company shall have duly
executed and delivered to the Agent a fee letter in form and substance
satisfactory to the Agent and the Banks (the "Fee Letter").
(xiv) Noble Document Assignment. The Company shall
have duly executed and delivered to the Agent, and Noble shall have duly
acknowledged, the Noble Document Assignment.
(xv) Joint Sale Agreement Assignment. The Company
shall have duly executed and delivered to the Agent a Joint Sales Agreement
Assignment with respect to each Joint Sales Agreement.
(xvi) Local Marketing Agreement Assignment. The
Company shall have duly executed and delivered to the Agent, a Local
Marketing Agreement Assignment with respect to each Local Marketing
Assignment Agreement.
(xvii) Mexican Assignment Agreements. Each of the
Mexican Assignment Agreements shall have been duly executed by the
applicable parties thereto and delivered to the Agent.
(b) Opinions of Counsel.
(xviii) The Agent and each Bank shall have received a
legal opinion, each dated the Closing Date, from Xxxxxxx, Head and Xxxxxxx
and Xxxxxxxxx & Xxxxxxxxxxx, each counsel to the Company and the
Subsidiaries, substantially in the forms set forth as Exhibits K-1 and K-2
hereto, respectively.
(xix) The Agent and each Bank shall have received a
legal opinion, dated the Closing Date, from FCC counsel to the Company and
the
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Subsidiaries, substantially in the form set forth as Exhibit K-3 hereto.
(xx) The Agent and each Bank shall have received
legal opinions, each dated the Closing Date, from counsel to the Company
and/or the Subsidiaries in the States of Georgia, Florida, Tennessee,
Colorado and California, each substantially in the form set forth as
Exhibits K-4 through K-9 hereto, respectively.
(xxi) The Agent and each Bank shall have received a
legal opinion, dated the Closing Date, from Xxxx Xxxxxxxx, Mexican counsel
to the Company substantially in the form set forth as Exhibit K-10.
(c) Noble Documents and Mexican Documents. The Agent and
each Bank shall have received a certificate from an Authorized Officer of the
Company, dated the Closing Date, certifying the accuracy and completeness of the
attached duly executed copies of each of the Noble Documents, each of the
Mexican Documents and each of the Employment Agreements, which agreements shall
be in form and substance satisfactory to the Agent and each Bank. Except as set
forth on Schedule 4.1(c)(I) hereof, all of the conditions precedent set forth
in, and all of the transactions to be effectuated on the Closing Date pursuant
to the terms and provisions of, each of the Noble Documents, the Mexican
Documents and the Employment Agreements shall have occurred. The Agent shall
have received evidence satisfactory to the Agent and the Banks and their
respective counsel that (i) all of the Noble Existing Indebtedness shall have
been paid, or concurrently with the making of the initial Loans hereunder will
have been paid, (ii) all agreements, instruments or other documents governing or
evidencing the Noble Existing Indebtedness shall have been, or concurrently with
the making of the initial Loans hereunder will be, terminated and (iii) all
Liens granted to secure the existing Indebtedness of Noble (other than the Liens
permitted by the Noble-Company Credit Agreement which Liens are set forth on
Schedule 4(c)(II) hereto) shall have been, or concurrently with the making of
the initial Loans hereunder will be, released.
(d) Corporate Documents and Corporate Structure. The
Agent and each Bank shall have received copies of the certificate of
incorporation of the Company and each Subsidiary (other than the Excluded
Subsidiaries), each as amended, modified or supplemented to the Closing Date,
certified to be true, correct and complete by the appropriate Secretary of State
as of a date not more than 90 days prior to the Closing Date (or, in the case of
the Company, 15 days), together with a copy of a good standing certificate from
each such Secretary of State and a good standing certificate from the Secretary
of State (or the equivalent thereof) of each other State in which each of them
is required to be qualified to transact business, each to be dated a date not
more than 90 days prior to the Closing Date (or, in the case of the Company, 15
days). The Agent shall have received a corporate structure chart with respect to
the Company and all of its Subsidiaries (such corporate structure chart to be
certified by a duly Authorized Officer of the Company) and such corporate
structure of the Company and its Subsidiaries shall be satisfactory to the
Banks.
(e) Certified Resolutions, etc. The Agent and each Bank
shall have received a certificate of the Secretary or Assistant Secretary of
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each of the Company and each Subsidiary (other than the Excluded Subsidiaries)
dated the Closing Date certifying (i) the names and true signatures of the
incumbent officers of such Person authorized to sign the applicable Loan
Documents, (ii) the bylaws of such Person as in effect on the Closing Date,
(iii) the resolutions of such Person's Board of Directors approving and
authorizing the execution, delivery and performance of all Loan Documents
executed by such Person and (iv) that there have been no changes in the
certificate of incorporation of such Person since the date of the most recent
certification thereof by the appropriate Secretary of State.
(f) Governmental Consents, Approvals, etc. Except as set
forth in Schedule 4.1(x) hereto, the Agent shall have received evidence
satisfactory to the Agent and the Banks and their respective counsel that the
Company and the Subsidiaries shall have made all applications, filings and
registrations with, or obtained all necessary approvals, orders, authorizations,
consents, licenses, certificates and permits from, the FCC and other federal,
state and local regulatory or governmental bodies and authorities that are or
may be required prerequisites to the validity, enforceability or nonvoidability
of the Loan Documents or the pledge of the capital stock of the Subsidiaries
required to be delivered pursuant to the Company Pledge Agreement and the
Subsidiary Pledge Agreements (except to the extent that the exercise by the
Agent of its rights under the Collateral Documents after a Default may require
the consent of the FCC pursuant to Section 310 of the Communications Act of
1934, as amended), and the Agent and the Banks shall have received copies of
each such filing, registration, approval, order, authorization, consent,
license, certificate and permit.
(g) Existing Debt. The Agent shall have received evidence
satisfactory to the Agent and the Banks and their respective counsel that (i)
the Company and the Subsidiaries shall have paid, or concurrently with the
making of the initial Loans hereunder will pay, in full the Existing Debt (other
than Surviving Debt), (ii) all agreements, instruments or other documents
governing or evidencing the Existing Debt shall have been, or concurrently with
the making of the initial Loans hereunder will be, terminated and (iii) all
Liens granted to secure the Existing Debt (other than Surviving Debt) shall have
been, or concurrently with the making of the initial Loans hereunder will be,
released or transferred to the Agent for the benefit of the Banks.
(h) Insurance. The Agent shall have received a
certificate of insurance and binders demonstrating insurance coverage in respect
of each of the Company and each Subsidiary of types, in amounts, with insurers
and with other terms required under the Loan Documents, which certificate shall
indicate that the Agent and the Banks are named additional insureds as their
interests may appear and shall contain a lender's loss payee endorsement in form
and substance satisfactory to the Agent in favor of the Agent on behalf of
itself and the Banks.
(i) Lien Search Reports. The Agent shall have received
satisfactory reports of UCC, tax lien, judgment and litigation searches
conducted by a search firm acceptable to the Agent and the Banks with respect to
the Company and each Subsidiary in each of the locations required by the Agent.
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(j) UCC-1 Financing Statements, etc. The Agent shall have
received originals, duly executed and delivered by the Company and each
Subsidiary party to the Subsidiary Security Agreement, of each UCC-1 financing
statement required by the Agent to be delivered by the Company and each such
Subsidiary, in each case listing the Company or the relevant Subsidiary as
debtor and naming the Agent as secured party for filing in the proper
jurisdictions for the locations set forth in Exhibits A and B to the Company
Security Agreement or the Subsidiary Security Agreement, as the case may be.
(k) UCC-3 Termination Statements. The Agent shall have
received originals of each UCC-3 termination statement required by the Agent to
be filed in connection with the termination of all Liens securing Existing Debt,
in each case duly executed and delivered by the appropriate Person in favor of
which such Liens were granted by the Company or any Subsidiary.
(l) Pro Forma Balance Sheet, etc. The Agent and each Bank
shall have received pro forma consolidated and consolidating balance sheets of
the Company and its Subsidiaries as of the Closing Date, giving effect to the
transactions to be effected on the Closing Date (including, without limitation,
the funding of the initial Loans, the repayment of the Existing Debt, the
effectiveness of the Noble Documents, the payment for the Noble Warrants
pursuant to the Noble Stock Purchase and Warrant Redemption Agreement, the
making of the loans by the Company to Noble on the Closing Date pursuant to the
terms of the Noble-Company Credit Agreement, the payment of the purchase price
for the San Diego Property pursuant to the San Diego Asset Purchase Agreement
and the purchase of the operating assets of XETRA-AM and XETRA-FM (the
"Transactions") and the payment or accrual of all costs and expenses incurred in
connection therewith, certified, to the best of such officer's knowledge and
belief, by an Authorized Officer and a pro-forma calculation, certified by an
Authorized Officer, showing compliance with each of the financial ratios set
forth in Section 6.3 hereof after giving effect to such Transactions).
(m) Solvency. The Agent and each Bank shall have received
a certificate signed by an Authorized Officer containing conclusions as to the
Solvency of the Company and each Subsidiary (other than the Excluded
Subsidiaries) after giving effect to the initial Loans and the Transactions.
(n) Pledged Stock. The Agent shall have received the
original stock certificates evidencing the stock pledged pursuant to the Company
Pledge Agreement and each Subsidiary Pledge Agreement, together with undated
stock powers duly executed in blank in connection therewith.
(o) Title Insurance; Survey. The Agent shall have
received (i) a commitment for mortgagee title insurance with respect to the real
property encumbered by the respective Mortgages, in an amount satisfactory to
the Banks, and issued by a title insurance company satisfactory to the Banks,
and (ii) the most recent survey (if any) with respect to each such property in
the possession of the Company or any Subsidiary.
(p) [Intentionally Omitted]
(q) Financial Statements. The Agent and each Bank shall
have received the audited financial statements of the Company and Noble for the
fiscal years ending December 31, 1992, December 31, 1993, and December 31,
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1994, and the unaudited financial statements of the Company and Noble for the
fiscal periods ending on September 30, 1995 and December 31, 1995.
(r) Environmental Matters. The Agent and the Banks shall
(i) be satisfied that each of the Company and its Subsidiaries is in compliance
with all applicable environmental, health and safety statutes and regulations,
(ii) be satisfied that neither the Company nor any of its Subsidiaries is
subject to any present or contingent environmental liability or be the subject
of any state or federal environmental investigation that could, in either case,
have a material adverse effect on the business, properties, prospects, financial
condition, profits or results of operations of the Company and its Subsidiaries
and (ii) have received copies of all environmental audit reports (if any)
prepared by independent environmental consultants with respect to the properties
and business of the Company and each Subsidiary.
(s) Funds Flow Instructions. The Agent and the Banks
shall have received detailed instructions satisfactory to them describing the
funds flow in connection with the funding of the initial Loans and the
consummation of the other Transactions.
(t) Fees and Expenses. The Agent shall have received, for
its account and for the account of each Bank, as applicable, all fees payable on
the Closing Date pursuant to the terms of the Fee Letter and all expenses due
and payable hereunder on or before the Closing Date, including, without
limitation, the reasonable fees and expenses accrued through the Closing Date of
Skadden, Arps, Slate, Xxxxxxx & Xxxx and any other counsel retained by the
Agent.
(u) Z/C Equity Investment. The Agent and the Banks shall
receive evidence satisfactory to them that Z/C owns at least 50% of the common
stock of the Company on the Closing Date.
(v) Projections. The Agent and the Banks shall have
received projections prepared by the Company demonstrating the projected
consolidated financial condition and results of operations of the Company and
the Subsidiaries after giving effect to the Transactions, for the period
commencing on the Closing Date and ending on the Revolving A Loan Termination
Date and the Revolving B Loan Termination Date, which projections shall be in
form and substance satisfactory to the Agent and the Banks, shall not give
effect to the proposed acquisitions by the Company of Citicasters, Inc., shall
indicate that the financial condition and assets of the Company shall be
sufficient (in the opinion of the Agent and the Banks) to provide the Company
with adequate working capital to profitably operate its consolidated businesses
and shall be accompanied by a written statement of the assumptions underlying
the projections.
(w) Process Agent. Each of the Company and each
Subsidiary (other than the Excluded Subsidiaries) shall have appointed in
writing an agent satisfactory to the Agent and the Banks for service of process
in connection with any action or proceeding arising under or relating to the
Loan Documents, and such agent shall have accepted such appointment in writing.
(x) Noble FCC Prepared Filings and Mexican Filings. The
Agent shall have received evidence satisfactory to the Agent and the Banks and
their respective counsel that the Company has completed and is prepared to
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file (i) all applications, filings, consent requests and registrations with the
FCC necessary for its acquisition of the capital stock and assets of Noble under
the Noble Documents and (ii) all applications, filings, consent requests and
registrations with the Mexican Secretaria de Comuniciones y Transportes
necessary for its acquisition of the capital stock and assets of XETRA-AM and
XETRA-FM, and the Mexican Concession relating thereto, all as contemplated by
the Mexican Documents.
(y) Litigation. The Banks shall have determined that
there exists no material pending or threatened litigation or other proceedings
involving the Company or any Subsidiary except for such material litigation or
proceedings disclosed on Schedule 5.7 and with respect to which the Company has
established full reserves in its financial statements and projections delivered
to the Agent and the Banks pursuant to Sections 4.1(q) and (v).
(z) ERISA Matters. The Company shall have provided to the
Agent and the Banks evidence satisfactory to the Agent and the Banks that the
Company and each of its Subsidiaries are in compliance with ERISA and all of the
regulations promulgated thereunder.
(aa) Officer's Certificate. The Agent and each Bank shall
have received a certificate executed by an Authorized Officer of the Company
dated the Closing Date stating that (i) all of the representations and
warranties of the Company and the Subsidiaries contained in the Loan Documents
are true and correct and (ii) after giving effect to the execution and delivery
of the Loan Documents by the Company and the Subsidiaries, the funding of the
initial Loans and the consummation of the other Transactions, no Default or
Unmatured Default shall have occurred and be continuing.
(bb) FCC Licenses. The Agent shall have received copies
of all of the principal FCC licenses for the operation of the Radio Stations
owned or operated by the Company or any of its Subsidiaries (whether pursuant to
a Joint Sales Agreement, a Local Marketing Agreement, or otherwise) certified by
the Secretary or Assistant Secretary of the Company.
(cc) Certain Financial Ratios as of the Closing Date. For
the 12 month period ended December 31, 1995, the Leverage Ratio of the Company
(on a pro forma consolidated basis after giving effect to the Transactions) is
less than or equal to 5.2 to 1.00. The Agent shall have received evidence
satisfactory to it that the trailing twelve month Operating Cash Flow as of
December 31, 1995, was at least $36,000,000 for the Company and Noble on a pro
forma consolidated basis (excluding Noble's assets, properties and licenses with
respect the Noble Denver Stations).
(dd) Additional Matters. The Agent and each Bank shall
have received such other certificates, opinions, documents and instruments
relating to the Transactions as may have been reasonably requested by the Agent
or any Bank, and all corporate and other proceedings and all other documents
(including, without limitation, all documents referred to herein and not
appearing as exhibits hereto) and all legal matters in connection with the
Transactions shall be satisfactory in form and substance to the Agent and the
Banks.
Section 2 Conditions Precedent to All Loans. The obligation of
each Bank to make any Loan (including the initial Loans made on the Closing
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Date) is subject to the satisfaction on the date such Loan is made of the
following conditions precedent:
(a) Representations and Warranties. The representations
and warranties contained herein and in the other Loan Documents (other than
representations and warranties that expressly speak only as of a different date)
shall be true and correct in all material respects on such date both before and
after giving effect to the making of such Loans.
(b) No Default or Unmatured Default. No Default or
Unmatured Default shall have occurred and be continuing on such date either
before or after giving effect to the making of such Loans.
(c) No Injunction. No law or regulation shall have been
adopted, no order, judgment or decree of any governmental authority shall have
been issued, and no litigation shall be pending or threatened, that would
enjoin, prohibit or restrain the making or repayment of the Loans or the
consummation of the Transactions.
(d) No Material Adverse Change. No event, act or
condition shall have occurred after December 31, 1995 that has had a material
adverse effect on the business, properties, financial condition or results of
operations of the Company and its Subsidiaries or on Noble, as the case may be,
and if any such material adverse effect shall have occurred, the Required Banks
shall have waived the same in writing.
(e) Borrowing Notice. The Agent shall have received a
duly executed Borrowing Notice in respect of the Loans to be made on such date.
(f) Acquisition. To the extent the proceeds of the Loan
will be used for any Acquisition (other than the Permitted Acquisitions
contemplated by the Noble Documents), the Company shall deliver to the Agent and
the Banks copies of all final federal, state and local regulatory or
governmental approvals, orders, authorizations, licenses, certificates and
permits necessary for the consummation of such Acquisition, including, without
limitation, any consents and approvals required by the FCC and any filings with
the Federal Trade Commission and the Antitrust Division of the Department of
Justice pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended. Notwithstanding the foregoing, the Company shall be permitted to
deliver to the Agent and the Banks copies of FCC orders which are not final and
are subject to reconsideration by the FCC or appeal to a court with respect to
any aforementioned Acquisition if and only if, (i) the Company or its
Subsidiaries (if applicable) shall have negotiated an unwind agreement with
respect to the business and assets (or related voting securities) subject to
such Acquisition which provides for the reconveyance for full value to the
seller of all such business and assets (or related voting securities) in the
event a final FCC order is not reasonably attainable with respect to such
business and assets (or related voting securities) and (ii) such business and
assets (or related voting securities) subject to such Acquisition shall be
subject to an escrow agreement whereby such business and assets (or related
voting securities) are maintained in escrow arrangements until the receipt of an
FCC final order with respect thereto, provided solely with respect to the
creation or maintenance of such escrow arrangements, the Required Banks may
expressly agree that such escrow arrangements are not required. The requirements
set forth in this Section 4.2(f) are in addition to any other require-
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54
ments and restrictions set forth in this Agreement which are applicable to such
an Acquisition.
The acceptance of the proceeds of each Loan shall constitute a
representation and warranty by the Company to each of the Banks that all of the
conditions required to be satisfied under this Article IV in connection with the
making of such Loan have been satisfied.
All of the Notes, certificates, agreements, legal opinions and
other documents and papers referred to in this Article IV, unless otherwise
specified, shall be delivered to the Agent for the account of each of the Banks
and, except for the Notes, in sufficient counterparts for each of the Banks, and
shall be satisfactory in form and substance to each Bank in its sole discretion.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Banks that:
Section 1 Corporate Existence and Standing. The Company and
each Subsidiary is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation and has all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted.
Section 2 Authorization and Validity. The Company and each
Subsidiary has the corporate power and authority and legal right to execute and
deliver the Loan Documents to which each is a party and to perform their
obligations thereunder. The execution and delivery by the Company and each
Subsidiary of the Loan Documents to which each is a party, and the performance
of their obligations thereunder, have been duly authorized by necessary
corporate proceedings, and the Loan Documents to which each is a party
constitute legal, valid and binding obligations of the Company and each
Subsidiary enforceable against the Company and each Subsidiary in accordance
with their terms, except as enforceability may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity. To the best knowledge of the
Company, each of the Noble Documents and the Mexican Documents (i) constitute
legal, valid and binding obligations of each party thereto (other than the
Company) enforceable against each such Person in accordance with its respective
terms, except as enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity and (ii) are in full force and effect. To the best
knowledge of the Company there are no material defaults, breaches or violations
under the Noble Documents or defaults, breaches or violations which effect the
enforceability of such agreements, the Noble Document Assignment or the Mexican
Document Assignment.
Section 3 No Conflict; Government Consent. Except as set forth
on Schedule 5.3 hereto, neither the execution and delivery by the Company or any
Subsidiary of the Loan Documents nor the consummation of the transactions
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herein or therein contemplated, nor compliance with the provisions hereof or
thereof will violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Company or any Subsidiary or the
Company's or any Subsidiary's articles of incorporation or by-laws or the
provisions of any indenture, instrument or agreement to which the Company or any
Subsidiary is a party or is subject, or by which it, or its property, is bound,
or conflict with or constitute a default thereunder, or result in the creation
or imposition of any Lien in, of or on the property of the Company or any
Subsidiary pursuant to the terms of any such indenture, instrument or agreement.
Except as set forth on Schedule 5.3 hereto, no order, consent, approval,
license, authorization, or validation of, or application, filing, recording or
registration with, or exemption by, any governmental or public body or
authority, or any subdivision thereof, is required to authorize, or is required
in connection with the execution, delivery and performance of, or the legality,
validity, binding effect or enforceability of, any of the Loan Documents, other
than the filing, within the period established by applicable law, of the Loan
Documents with the FCC and other than the filing and/or recording of financing
statements (and/or financing statement amendments), the Company Mortgages and
the Subsidiary Mortgages.
Section 4 Financial Statements.
(a) The audited December 31, 1992, December 31, 1993, and
December 31, 1994, and unaudited September 30, 1995 and December 31, 1995
consolidated financial statements of the Company and the Subsidiaries heretofore
delivered to the Banks were each prepared in accordance with Generally Accepted
Accounting Principles in effect on the date such statements were prepared and
fairly present the consolidated financial condition and operations of the
Company and the Subsidiaries, at such date and the consolidated results of
operations of the Company and the Subsidiaries for the period then ended.
(b) To the best knowledge of the Company after due
inquiry, the audited December 31, 1992, December 31, 1993, and December 31,
1994, and the unaudited September 30, 1995 and December 31, 1995 consolidated
financial statements of Noble and its Subsidiaries heretofore delivered to the
Banks were each prepared in accordance with Generally Accepted Accounting
Principles in effect on the date such statements were prepared and fairly
present the consolidated financial condition and operations of Noble and its
Subsidiaries at such date.
Section 5 Material Adverse Change. As of the Closing Date, no
material adverse change in the business, properties, financial condition or
results of operations of the Company and the Subsidiaries or Noble has occurred
since December 31, 1995.
Section 6 Taxes. The Company and the Subsidiaries have filed
(or have obtained extensions for filing) all United States federal, state and
local tax returns and all other tax returns which are required to be filed and
have paid all taxes which have become due or pursuant to any assessment received
by the Company or any Subsidiary, except such taxes, if any, as are being
contested in good faith by appropriate proceedings and as to which adequate
reserves have been provided. No United States or state income tax returns of the
Company or any Subsidiary has been audited by the Internal Revenue Service or
any State agency. No tax liens have been filed and no claims are being asserted
with respect to any such taxes. The charges,
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accruals and reserves on the books of the Company and the Subsidiaries in
respect of any taxes or other governmental charges are adequate.
Section 7 Litigation and Contingent Obligations. Except as set
forth on Schedule 5.7 hereto, as of the Closing Date there is no litigation,
arbitration, governmental investigation, proceeding, inquiry or Environmental
Claim pending or, to the knowledge of any of their officers, threatened against
or affecting the Company or any Subsidiary which could reasonably be expected to
materially adversely affect the business, properties, financial condition or
results of operations of the Company and the Subsidiaries taken as a whole or
the ability of the Company or any Subsidiary to perform its obligations under
the Loan Documents or to consummate the Transactions. Other than any liability
incident to such litigation, arbitration, proceedings or Environmental Claim, as
of the Closing Date the Company has no material contingent obligations not
provided for or disclosed in the financial statements referred to in Section
5.4.
Section 8 Environmental Matters.
(a) As of the Closing Date, and except as set forth in
Schedule 5.8(a), there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without limitation,
the release, emission, discharge, presence or disposal of any Material of
Environmental Concern, that could form the basis of any Environmental Claim
against (i) the Company or any of the Subsidiaries or, (ii) to the Company's and
the Subsidiaries' knowledge against any Person whose liability for any
Environmental Claim that the Company or any Subsidiary has or may have retained
or assumed either contractually or by operation of law, which could reasonably
be expected to materially adversely affect the business, properties, financial
condition or results of operations of the Company and the Subsidiaries taken as
a whole or the ability of the Company or any Subsidiary to perform its
obligations under the Loan Documents.
(b) As of the Closing Date, and except as set forth in
Schedule 5.8(b), to the Company's knowledge (i) there are no on-site or off-site
locations where the Company or any Subsidiary has stored, disposed or arranged
for the disposal of Materials of Environmental Concern, (ii) there are no
underground storage tanks located on property owned or leased by the Company or
any Subsidiary, (iii) there is no asbestos contained in or forming part of any
building, building component, structure or office space owned or leased by the
Company or any Subsidiary, and (iv) no polychlorinated biphenyls (PCB's) are
used or stored at any property owned or leased by the Company or any Subsidiary,
which could reasonably be expected to materially adversely affect the business,
properties, financial condition or results of operations of the Company and the
Subsidiaries taken as a whole or the ability of the Company or any Subsidiary to
perform its obligations under the Loan Documents.
Section 9 ERISA.
(a) Except as set forth on Schedule 5.9 hereto, as of the
Closing Date (i) there are no Unfunded Liabilities in any Plan which liabilities
in the aggregate would have a material adverse effect on the business, property,
financial condition or results of operations of the Company and the
Subsidiaries, taken as a whole; (ii) each Company Plan complies in all material
respects with all applicable requirements of law and regulations and
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no Reportable Event has occurred with respect to any Company Plan and, to the
Company's actual knowledge, with respect to any Plan that is not a Company Plan;
(iii) neither the Company nor any Subsidiary nor any ERISA Affiliate has
withdrawn from any Plan or initiated steps to do so, and no steps have been
taken to terminate any Plan, in each case under circumstances which would have a
material adverse effect on the business, property, financial condition or
results of operations of the Company and the Subsidiaries, taken as a whole; and
(iv) neither the Company nor any Subsidiary nor any ERISA Affiliate has engaged
in any prohibited transaction (as defined in Section 4975 of the Internal
Revenue Code) that would subject the Company or any Subsidiary to any penalty
which would have a material adverse effect on the business, property, financial
condition or results of operations of the Company and the Subsidiaries, taken as
a whole.
(b) Except as set forth on Schedule 5.9 hereto, as of the
Closing Date neither the Company nor any Subsidiaries nor any of their ERISA
Affiliates has any contingent liability with respect to any post-retirement
benefit under any "welfare plan" (as defined in Section 3(1) of ERISA) that is
reasonably likely to have a material adverse effect on the business, property,
financial condition or results of operations of the Company and the Subsidiaries
taken as a whole, other than liability for continuation coverage under Part 6 of
Subtitle B of Title I of ERISA.
(c) Except as set forth on Schedule 5.9 hereto, as of the
Closing Date, no lien under Section 412(n) of the Internal Revenue Code or
302(f) of ERISA or requirement to provide security under Section 401(a)(29) of
the Internal Revenue Code or Section 307 of ERISA has been or is reasonably
expected by the Company, any Subsidiary or any of their ERISA Affiliates to be
imposed on the assets of the Company, any Subsidiary or any of their ERISA
Affiliates that is reasonably likely to have a material adverse effect on the
business, property, financial condition or results of operations of the Company
and the Subsidiaries taken as a whole.
(d) Except as set forth on Schedule 5.9 hereto, as of the
Closing Date, no material liability to the PBGC (other than required premium
payments), the Internal Revenue Service, any Plan, Multiemployer Plan or any
trust related thereto has been, or is expected by the Company, any Subsidiary
or, to the actual knowledge of the Company, any of their ERISA Affiliates, to be
incurred by the Company, any Subsidiary or any of their ERISA Affiliates that is
reasonably likely to have a material adverse effect on the business, property,
financial condition or results of operations of the Company and the Subsidiaries
taken as a whole.
Section 10 Accuracy of Information. No information, exhibit,
certificate, schedule or report furnished by the Company or any Subsidiary to
the Agent or to any Bank in connection with the negotiation of the Loan
Documents contains, and no information, certificate or report which shall in the
future be furnished by the Company or any Subsidiary in connection with any of
the Loan Documents will contain, any material misstatement of fact or omit to
state any material fact necessary to make the statements contained therein not
misleading.
Section 11 Margin Regulations. No part of the proceeds of any
Loan will be used by the Company or any Subsidiary to purchase or carry any
margin stock (as defined in any Margin Regulation) or to extend credit to
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others for the purpose of purchasing or carrying any such margin stock, if the
making of any Loan or the use of the proceeds thereof would violate or be
inconsistent with the provisions of any Margin Regulation.
Section 12 Materially Burdensome Agreements. Except as
disclosed on Schedule 5.12 hereto or as identified in the notes to the Company's
financial statements delivered to the Agent and the Banks pursuant to Section
4.1(q), neither the Company nor any Subsidiary is a party to any agreement or
instrument or subject to any charter or other corporate restriction materially
and adversely affecting its business, properties or assets, operations or
condition (financial or otherwise) as currently conducted or used in connection
with its business. Neither the Company nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement or instrument evidencing or governing
Indebtedness or any other agreement to which it is a party, which default might
have a material adverse effect on the business, properties, financial condition
or results of operations of the Company and the Subsidiaries taken as a whole.
Section 13 Compliance with Laws; Franchises and Licenses.
(a) The Company and the Subsidiaries have complied with
all applicable statutes, rules, regulations, orders and restrictions (including,
without limitation, all Environmental Laws) of any domestic or foreign
government or any instrumentality or agency thereof having jurisdiction over the
conduct of their respective businesses or the ownership of their respective
properties, except where the failure to so comply would not have a material
adverse effect on the business, properties, financial condition or results of
operations of the Company and the Subsidiaries taken as a whole. The Company and
the Subsidiaries have obtained all franchises, licenses, certificates, consents,
approvals and authorizations granted or issued by any public or governmental
body, agency or authority necessary and appropriate to own and/or operate the
Radio Stations and all such franchises, licenses, certificates, consents,
approvals and authorizations are in full force and effect with respect to the
Radio Stations.
(b) Schedule 5.13(b)(i) includes, as of the Closing Date,
all FCC Broadcast Station Licenses of the Company and each of the Subsidiaries.
Each FCC Broadcast Station License which is materially necessary to the
operation of the business of the Company or any Subsidiary is validly issued and
in full force and effect. Such FCC Broadcast Station Licenses constitute all of
the FCC authorization necessary for the operation of the Company's and
Subsidiaries' businesses in the same manner as it is presently conducted. Each
of the Company and the Subsidiaries has fulfilled and performed all of its
material obligations with respect thereto, and complete and correct copies of
the FCC Broadcast Station Licenses of the Company and each of the Subsidiaries
have been delivered to the Agent. No event has occurred which (a) results in, or
after notice or lapse of time or both would result in, revocation or termination
of any FCC Broadcast Station License or (b) materially and adversely affects or
in the future will be reasonably likely (so far as the Company can now
reasonably foresee) to materially adversely affect any of the rights of the
Company or any of the Subsidiaries thereunder (other than proceedings related to
the radio broadcast industry generally). No other FCC license is necessary for
the operation of the business of the Company or any of the Subsidiaries as now
conducted. Except as set forth on
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Schedule 5.13(b)(ii) and as may be required under Section 310 of the
Communications Act of 1934, as amended, none of the FCC Broadcast Station
Licenses or other franchises or licenses require that any present stockholder,
director, officer or employee of the Company or any of the Subsidiaries remain a
stockholder or employee of the Company or any Subsidiary, or that any transfer
of control of the Company or any of the Subsidiaries must be approved by any
public or governmental body other than the FCC.
(c) Except as described on Schedule 5.13(c), to the best
of the Company's knowledge, on the Closing Date, neither the Company nor any of
the Subsidiaries is a party to any investigation, notice of violation, order or
complaint issued by or before any court or regulatory body, including the FCC,
or of any other proceedings (other than proceedings relating to the radio or
television industries generally) which could in any manner threaten or adversely
affect the validity or continued effectiveness of the FCC Broadcast Station
Licenses of the Company or any of the Subsidiaries. Except as described on
Schedule 5.13(c), as of the Closing Date, the Company has no reason to believe
(other than in connection with there being no legal assurance thereof) that the
FCC Broadcast Station Licenses listed and described on Schedule 5.13(b)(i) will
not be renewed in the ordinary course. Each of the Company and each Subsidiary
has filed all reports, applications, documents, instruments and information
required to be filed by it pursuant to applicable rules and regulations or
requests of the FCC to the extent that the failure to file the same could
threaten or adversely effect the validity or continued effectiveness of their
respective FCC Broadcast Station Licenses.
Section 14 Ownership of Properties. Except as set forth on
Schedule 5.14 hereto, the Company and each Subsidiary has good and marketable
title, free of all Liens, other than those permitted by Section 6.17, to all of
the properties and assets reflected in the financial statements as owned by it.
Section 15 Location of Properties.
(a) Except as set forth on Schedule 5.15(a) hereto, or as
otherwise disclosed by written notice from the Company to the Agent from time to
time, neither the Company nor any Subsidiary owns or possesses any fee or
leasehold interest in real property (other than interests in property which in
the aggregate are of no material value to the Company and its Subsidiaries).
(b) Except as set forth on Schedule 5.15(b) hereto, or as
otherwise disclosed by written notice from the Company to the Agent from time to
time, neither the Company nor any Subsidiary owns or possesses any interest in
any tangible personal property (including, without limitation, equipment,
fixtures and inventory) of any type whatsoever, which is not located at one of
the properties listed on Schedule 5.15(a) hereto, or as otherwise has been
disclosed by written notice from the Company to the Agent from time to time
(other than property which may be located at other properties from time to time
which in the aggregate is of no material value to the Company and its
Subsidiaries).
Section 16 Investment Company Act. Neither the Company nor any
Subsidiary nor any corporation controlling the Company or under common control
with the Company is an "investment company" or a company "controlled" by an
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"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
Section 17 Public Utility Holding Company Act. Neither the
Company nor any Subsidiary nor any corporation controlling the Company or under
common control with the Company is a "holding company" or a "subsidiary company"
of a "holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
Section 18 Capital Structure.
(a) Schedule 5.18(a) sets forth as of the Closing Date,
both before and after giving effect to the Transactions to be consummated on the
Closing Date, the number of authorized and issued shares of each class of
capital stock of the Company and each of its Subsidiaries, the par value thereof
and the registered owner(s) of the capital stock of each Subsidiary. All of such
stock has been duly and validly issued and is fully paid and non-assessable.
Except as set forth in schedule 5.18(a), as of the Closing Date, neither the
Company nor any Subsidiary has outstanding any securities convertible into or
exchangeable for its capital stock nor does the Company or any Subsidiary have
outstanding any rights to subscribe for or to purchase, or any options for the
purchase of, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to,
its capital stock. On the Closing Date, Z/C owns not less than 50% of the issued
and outstanding shares of common stock of the Company.
(b) Schedule 5.18(b)(i) identifies, as of the Closing
Date, all of the Indebtedness of the Company and its Subsidiaries immediately
prior to the making of the Loans and the application of the proceeds thereof
(the "Existing Debt"). As of the Closing Date and after the making of the Loans
and the application of the proceeds thereof and after the consummation of the
other Transactions which are to occur on the Closing Date, the Company and the
Subsidiaries shall have no Indebtedness to any Person other than Indebtedness
arising under the Loan Documents and the Indebtedness identified on Schedule
5.18(b)(ii) (the "Surviving Debt").
(c) Except as set forth on Schedule 5.18(b)(ii) hereto or
as permitted under Section 6.11 hereto, upon the making of the initial Loans and
the application of the proceeds thereof on the Closing Date (i) all claims in
connection with the Existing Debt (other than with respect to the Surviving
Debt) shall have been satisfied and released and (ii) the Obligations shall
constitute the only outstanding secured indebtedness of the Company and its
Subsidiaries.
Section 19 Deposit Accounts. Schedule 5.19 sets forth each
deposit account maintained by the Company and the Subsidiaries with any bank or
other financial institution on the Closing Date and accurately identifies each
such deposit account as a lock-box, concentration, disbursement or xxxxx cash
account.
Section 20 Excluded Subsidiaries, etc. None of the Excluded
Subsidiaries has any material assets. As of the Closing Date Georgia Network
Equipment, Inc. has no material assets other than satellite dishes and related
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equipment located in various locations in the State of Georgia and several other
states with a value on the Closing Date not in excess of $75,000.
Section 21 Labor Matters. Except as set forth on Schedule 5.21,
there is no collective bargaining agreement covering any of the employees of the
Company or any Subsidiary on the Closing Date. As of the Closing Date, no single
employment contract is necessary for the profitable operation of the Company's
or any Subsidiary's business. As of the Closing Date, no attempt to organize the
employees of the Company or any Subsidiary, and no labor disputes, strikes or
walkouts affecting the operations of the Company or any Subsidiary, is pending
or, to the knowledge of the Company and its officers, threatened.
Section 22 Solvency. On the Closing Date and after giving
effect to the Transactions, the Company and each Subsidiary (other than Excluded
Subsidiaries) will be Solvent.
Section 23 Security Interests and Liens.
(a) The Collateral Documents (other than the Intercompany
Security Agreement) create, as security for the Obligations, valid and
enforceable security interests in and Liens on all of the Collateral, in favor
of the Agent for the benefit of the Agent and the Banks. Upon the filing of the
financing statements identified in Section 4.1(j) in the filing offices
contemplated therein, the filing of the Company Trademark Agreement and the
Subsidiary Trademark Agreement in the United States Patent and Trademark Office
and the filing and recordation of the Mortgages, such security interests in and
Liens on the Collateral (other than Collateral consisting of goods of Georgia
Network Equipment, Inc., fixtures on real property owned or leased by the
Company or any Subsidiary which is not subject to a Mortgage and motor vehicles)
shall be superior to and prior to the rights of all third parties (except as
disclosed on Schedule 5.23), and no further recordings or filings are or will be
required in connection with the creation, perfection or enforcement of such
security interests and Liens, other than the filing of continuation statements
in accordance with applicable law.
(b) The Intercompany Security Agreement creates, as
security for the "Secured Obligations" (as defined therein), valid and
enforceable security interests in and Liens on all of the "Collateral", in favor
of the Company. Upon the filing of the financing statements identified in
Section 4.1(j) in the filing offices contemplated therein, such security
interests in and Liens on such "Collateral" (other than Collateral consisting of
goods of Georgia Network Equipment, Inc., United States registered trademarks
(to the extent that perfection of a security interest therein requires a filing
with respect thereto with the United States Patent and Trademark Office),
fixtures on real property owned or leased by the Company or any Subsidiary which
is not subject to a Mortgage and motor vehicles) shall be superior to and prior
to the rights of all third parties other than the Agent (except as disclosed on
Schedule 5.23), and no further recordings or filings are or will be required in
connection with the creation, perfection or enforcement of such security
interests and Liens, other than the filing of continuation statements in
accordance with applicable law.
Section 24 Closing Date Transactions. On the Closing Date and
immediately prior to or contemporaneously with the making of the initial Loans
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hereunder, the Transactions intended to be consummated on the Closing Date will
have been consummated in accordance with all applicable laws. All consents and
approvals of, and filings and registrations with, and all other actions by, any
Person required in order to make or consummate such Transactions have been
obtained, given, filed or taken and are or will be in full force and effect.
Section 25 Call Letters; Patents, Trademarks, etc. As of the
Closing Date, the Company and the Subsidiaries in the aggregate have all rights
pursuant to the rules and regulations of the FCC to use as call letters of AM
broadcast radio stations the call letters "WGST", "WLW", "WCKY", "KOA", "KTLK",
"WFLA", "WBRD", "WJGR", "WZAZ", of FM radio broadcasting station call letters
"WPCH", "KHTS", "WEBN", "WOFX", "KRFX", "KBPI", "WFLZ", "WDUV", "WQIK", "WSOL",
"WWST", "WJBT" and "WMYU", and all trademarks, servicemarks, logos and
tradenames material to the operations thereof, of the Georgia News Network,
Xxxxxxxx Xxxx Media and of the Radio Stations. As of the Closing Date, the
Company and the Subsidiaries in the aggregate have certain rights pursuant to
the Joint Sales Agreement, the Local Marketing Agreement and the Mexican Sales
Agency Agreement to use AM broadcast radio station call letters "WSAI", "WAOZ"
and XETRA, and FM broadcast radio station call letters "WGST", "WAQZ", "KTCL"
and "XETRA". To the knowledge of the Company and its officers, as of the Closing
Date, and except (i) with respect to call letters used by the Company and its
Subsidiaries pursuant to Joint Sales Agreements, Local Marketing Agreements and
the Mexican Sales Agency Agreement, or (ii) as set forth in Schedule 5.25, no
Person other than the Company and the Subsidiaries has, owns, possesses, holds
or claims any interest with respect to the use of (or has challenged the right
of the Company or any Subsidiary to use) any of such call letters, trademarks,
servicemarks, logos or tradenames, except for claims which do not, either
individually or in the aggregate, materially effect the Company or any of its
Subsidiaries. Neither the Company nor any Subsidiary owns any United States
registered patent, trademark, servicemark and copyright material to the Company
or its Subsidiaries, except for those listed on Schedule 5.25.
Section 26 No Default. No Default or Unmatured Default has
occurred and is continuing.
Section 27 Brokers' Fees. Except as set forth on Schedule 5.27,
and except as payable to any person party to this Agreement or the Fee Letter,
neither the Company nor any Subsidiary has any obligation to any Person in
respect of any finder's, brokers, investment banking or other similar fee in
connection with any of the Transactions.
Section 28 Insurance. Schedule 5.28 accurately sets forth as of
the Closing Date all insurance policies and programs currently in effect with
respect to the respective property and assets and business of the Company and
the Subsidiaries, specifying for each such policy and program, (i) the amount
thereof, (ii) the risks insured against thereby, (iii) the name of the insurer
and each insured party thereunder, (iv) the policy or other identification
number thereof, (v) the expiration date thereof and (vi) the annual premium with
respect thereto. The insurance policies, programs and amounts maintained by the
Company and the Subsidiaries are adequate for the type of risks reasonably
anticipated for the lines of businesses in which the Company and its
Subsidiaries engage.
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Section 29 Representations and Warranties in Noble Documents.
All of the representations made by the Company and each of its Subsidiaries in
each Noble Document and, to the best of the Company's knowledge, all
representations made by each other Person in each of the Noble Documents and the
Mexican Documents are true and correct in all material respects. None of such
representations and warranties of the Company or any Subsidiary are inconsistent
in any material respect with the representations and warranties made herein or
in any other Loan Document.
ARTICLE VI
COVENANTS
The Company covenants and agrees that until the Aggregate
Commitment has been terminated and the Obligations have been paid in full,
unless the Required Banks shall otherwise consent in writing:
Section 1 Financial Reporting. The Company will maintain, for
itself and each Subsidiary, a system of accounting established and administered
in accordance with Generally Accepted Accounting Principles, and furnish to the
Agent and the Banks:
(a) Within 90 days after the close of each of its fiscal
years, an unqualified audit report certified by independent certified public
accountants of nationally recognized standing, acceptable to the Agent, prepared
in accordance with Generally Accepted Accounting Principles on a consolidated
basis for itself and the Subsidiaries, including balance sheets as of the end of
such period, related profit and loss and reconciliation of surplus statements
(consolidated only), setting forth in comparative form the figures for the
previous fiscal year, and a statement of cash flows (consolidated only),
accompanied by (i) a letter from said accountants substantially in the form of
Exhibit L hereto and (ii) a certificate of said accountants that, in the course
of their examination necessary for their certification of the foregoing, they
have obtained no knowledge of any Default or Unmatured Default, or if, in the
opinion of such accountants, any Default or Unmatured Default shall exist,
stating the nature and status thereof.
(b) Within 30 days after the end of each calendar month,
for itself and the Subsidiaries, consolidated and consolidating unaudited
balance sheets and Capital Expenditure statements as at the close of each such
month and consolidated profit and loss statements for such month and for the
period from the beginning of the Company's fiscal year to the end of such month,
in each case prepared in accordance with Generally Accepted Accounting
Principles and setting forth in comparative form the corresponding figures for
the comparable periods in the preceding fiscal year, for the period from the
beginning of such fiscal year to the end of such month, and, in each case, in
comparative form the corresponding figures for the corresponding items in the
budget for such periods delivered by the Company to the Agent and the Banks
pursuant to Section 6.1(c), all certified by its Treasurer or Chief Financial
Officer and prepared in accordance with Generally Accepted Accounting
Principles, except with respect to the unaudited balance sheets which are not
adjusted to reflect (1) the carrying value of barter receivables and barter
payables in accordance with FASB No. 63 and (2) the classification of out-
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standing debt between short term and long term. In addition, such statements
will not include footnotes.
(c) As soon as available, (i) but in any event within 45
days after the beginning of each fiscal year of the Company, a copy of the
annual budget prepared on a monthly basis for the Company and each of the Radio
Stations for such fiscal year reflecting cash flow requirements and results of
operations and (ii) any revisions to the budgets previously delivered.
(d) Together with the financial statements required to be
delivered under Section 6.1(a) and the financial statement required to be
delivered under Section 6.1(b) for the last month of each fiscal quarter of the
Company and, at the Required Banks' option, the financial statements required to
be delivered under Section 6.1(b) for any other month, a duly completed
Compliance Certificate.
(e) Within 180 days after the close of each fiscal year,
a statement of the Unfunded Liabilities of each Company Plan, certified as
correct by an Authorized Officer of the Company.
(f) As soon as possible and in any event within five
Business Days after an Authorized Officer of the Company learns (i) that any
Reportable Event has occurred with respect to any Company Plan or (ii) that any
Reportable Event has occurred with respect to any Plan other than a Company Plan
and, in the exercise of such officer's good faith judgment, such officer
determines that such Reportable Event is reasonably likely to result in payment
by the Company and the Subsidiaries in excess of $2,000,000, in each such case,
a statement, signed by the Chief Financial Officer of the Company, describing
said Reportable Event and the action which the Company or the ERISA Affiliate
(if applicable) proposes to take with respect thereto.
(g) Promptly upon the furnishing thereof to the
shareholders of the Company, copies of all financial statements, reports and
proxy statements so furnished.
(h) Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or other regular reports
which the Company or any Subsidiary files with the Securities and Exchange
Commission or the FCC.
(i) Such other information (including non-financial
information) as the Agent or any Bank may from time to time reasonably request.
Section 2 Notice of Default, Litigation etc. The Company will,
(a) within two (2) Business Days after an Authorized Officer of the Company
learns of the occurrence or existence thereof, give notice in writing to the
Agent of the occurrence of any Default or Unmatured Default and (b) within five
(5) Business Days after an Authorized Officer of the Company learns of the
occurrence or existence thereof, give notice to the Agent in writing of (i) any
litigation or other development (other than the issuance or adoption of any new
federal, state or local statute, regulation or ordinance or any other
development affecting the broadcasting industry generally), financial or
otherwise, which is reasonably likely to materially adversely affect the
business, properties, financial condition or results of operations of the
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Company and the Subsidiaries taken as a whole or which is reasonably likely to
adversely affect the ability of the Company or the Subsidiaries to repay the
Obligations as and when due or perform other obligations under the Loan
Documents, (ii) the receipt by the Company or any Subsidiary of any notice from
any federal, state or local governmental or regulatory body or authority of the
expiration without renewal, termination, material modification or suspension of,
or institution of any proceedings to terminate, materially modify, or suspend,
any license granted by the FCC or any other license now or hereafter held by the
Company or any Subsidiary which is required to operate any of the Radio Stations
in compliance with all applicable laws and regulations, (iii) any federal, state
or local statute, regulation or ordinance or judicial or administrative order
limiting or controlling the broadcast operations of the Company or any
Subsidiary which has been issued or adopted hereafter and which is of material
adverse importance or effect in relation to the operation of any of the Radio
Stations (other than matters affecting the radio broadcast industry generally)
or (iv) the timely filing by any party of an application to the FCC for an
authorization for a new or modified broadcasting station that is in conflict
with any of the applications of the Company or any Subsidiary for renewal of any
licenses of the Radio Stations.
Section 3 Financial Ratios.
6.3.1. Leverage Ratio. The Company will maintain, at all
times during the periods set forth below, a Leverage Ratio not greater than the
ratio set forth below opposite each such period:
Period Ratio
------ -----
Closing Date - 12/30/96 6.50:1
12/31/96 - 06/29/97 6.00:1
06/30/97 - 12/31/97 5.75:1
01/01/98 - 12/31/98 5.25:1
01/01/99 - 12/31/99 4.75:1
01/01/00 - 12/31/00 4.25:1
For each fiscal quarter
ending after 01/01/01 3.50:1
provided, however, notwithstanding the foregoing, for the period of 90
consecutive days commencing upon the Citicasters L/C Funding Date, the Company
will maintain, at all times during such 90-day period, a Leverage Ratio of not
greater than 7.00 to 1, provided, immediately after such 90-day period, the
Company shall maintain the Leverage Ratio otherwise applicable hereunder.
6.3.2. Interest Coverage. The Company will maintain, as
at the last day of each fiscal quarter ending during the periods set forth
below, a ratio of (A) Operating Cash Flow to (B) Cash Interest Expense, in each
case calculated for the four consecutive fiscal quarters then most recently
ended (for which financial statements have been delivered pursuant to Section
6.1 hereof) for the Company and the Subsidiaries on a consolidated basis, not
less than the ratio set forth below opposite each such period; provided however,
(i) for the period ending March 31, 1996, Cash Interest Expense shall be
annualized based upon the number of days in such period from closing to 3/31/96,
(ii) for the period ending June 30, 1996 Cash Interest Expense will be the
product of (A) the sum of (x) Cash Interest Expense from clause (i)
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above divided by 4 plus (y) actual Cash Interest Expense for the period from
April 1, 1996 to June 30, 1996, multiplied by (B) 2, (iii) for the period ending
September 30, 1996, Cash Interest Expense will be the product of (A) the sum of
(x) Cash Interest Expense set forth in clause (i) above divided by 4 plus actual
Cash Interest Expense for the period from April 1, 1996 to September 30, 1996,
multiplied by (B) 1.33, and (iv) for the period ending December 31, 1996, Cash
Interest Expense will be the sum of (A) an amount equal to the amount of Cash
Interest Expense set forth in clause (i) above divided by four, and (B) actual
Cash Interest Expense for the period from April 1, 1996 to December 31, 1996:
Period Ratio
------ -----
Closing Date - 12/31/96 2.00:1
01/01/97 - 12/31/97 2.50:1
For each fiscal quarter
ending after 01/01/98 3.00:1
6.3.3. Fixed Charge Coverage. The Company will maintain,
as at the last day of any fiscal quarter a ratio of (i) Operating Cash Flow to
(ii) Fixed Charges, in each case calculated for the four consecutive fiscal
quarters then most recently ended for the Company and the Subsidiaries on a
consolidated basis, of not less than 1.05 to 1.; provided, however, that for
each quarterly period ending on March 31, 1996, June 30, 1996, September 30,
1996 and December 31, 1996, (A) the Cash Interest Expense component of Fixed
Charges shall be determined as provided in Section 6.3.2 and (B) the components
of Fixed Charges contained in clauses (iii), (iv) and (v) of the definition of
Fixed Charges shall be determined on a consolidated historical pro forma 12
month trailing basis.
Section 4 Conduct of Business; Maintenance of Licenses. The
Company will, and will cause each Subsidiary to, (a) carry on and conduct the
business of owning and operating the Radio Stations in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted, provided that broadcast format and personnel changes shall not be
deemed a breach of this clause (a); (b) do all things necessary to remain duly
incorporated, validly existing and in good standing as a domestic corporation in
its jurisdiction of incorporation and maintain all requisite authority to
conduct its business in each jurisdiction in which its business is conducted;
and (c) do all things necessary to renew, extend and continue in effect all
permits, licenses and authorizations which may at any time and from time to time
be necessary to operate the Radio Stations in compliance with all applicable
laws and regulations.
Section 5 Taxes. The Company will, and will cause each
Subsidiary to, pay, before they become delinquent, all taxes, assessments and
governmental charges and levies upon it or its income, profits or property,
except those which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves have been set aside in accordance
with Generally Accepted Accounting Principles.
Section 6 Insurance. The Company will, and will cause each
Subsidiary to, maintain with financially sound and reputable insurance companies
insurance on all their property in such amounts and covering such risks as is
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consistent with sound business practice and is acceptable to the Required Banks,
and the Company will furnish to any Bank upon request full information as to the
insurance carried and shall maintain the Agent and the Banks as named additional
insureds as their interest may appear on each such policy and each such policy,
as appropriate, shall contain a lender's loss payee endorsement in form and
substance satisfactory to the Agent in favor of the Agent on behalf of itself
and the Banks.
Section 7 Compliance with Laws and FCC Filings in connection
with Loan Documents. The Company will, and will cause each Subsidiary to, comply
with all laws (including, without limitation, the Communications Act of 1934, as
amended.), rules, regulations, orders, writs, judgments, injunctions, decrees or
awards to which it may be subject, including, without limitation, all
Environmental Laws and all rules and regulations promulgated by the FCC and all
FCC authorizations, except where the failure to so comply would not have a
material adverse effect on the business, properties, financial condition or
results of operations of the Company and its Subsidiaries taken as a whole and
would not result in the loss, cancellation, rescission, termination or
revocation of any broadcast license granted to the Company or any Subsidiary by
the FCC. Within five days after the Closing Date, the Company shall have made
all necessary filings with the FCC in connection with the execution, delivery
and performance of the Loan Documents and the transactions contemplated thereby,
including, without limitation, the applicable FCC filings set forth in Section
4.1(x) and on Schedule 5.3 hereto.
Section 8 Maintenance of Properties. The Company will, and will
cause each Subsidiary to, do all things necessary to maintain, preserve, protect
and keep its properties in good repair, working order and condition, and make
all necessary and proper repairs, renewals and replacements so that its business
carried on in connection therewith may be properly conducted at all times.
Section 9 Inspection, etc. The Company will, and will cause
each Subsidiary to, permit the Agent and any Bank, by their respective
representatives and agents, to inspect any of the properties, corporate books
and financial records of the Company and each Subsidiary, to examine and (except
in the case of confidential information relating to the Company's relationship
with third parties) make copies of the books of accounts and other financial
records of the Company and each Subsidiary, and to discuss the affairs, finances
and accounts of the Company and each Subsidiary with, and to be advised as to
the same by, their respective officers at such reasonable times and intervals as
any Bank may designate by reasonable prior notice to the Company. The Company
shall provide to the Agent such appraisals of the Company's and Subsidiaries'
properties as the Agent or any Bank is required to obtain by any law or
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law), or any interpretation thereof, including, without
limitation, the provisions of Title XI of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, and any rules promulgated to implement
such provisions.
Section 10 Restricted Payments. The Company will not, nor will
it permit any Subsidiary to, (a) declare or pay any dividends on its capital
stock, or return any capital to its stockholders or authorize or make any other
distribution, payment or delivery of property or cash to its stockholders in
respect of its capital stock or (b) redeem, repurchase or otherwise ac-
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quire or retire, directly or indirectly, any of its capital stock at any time
outstanding (or any options, warrants or rights issued with respect to its
capital stock other than the options and warrants described in Schedule 6.10)
(collectively, the "Restricted Payments"), except (i) so long as no Default or
Unmatured Default shall have occurred and be continuing, Permitted Stock
Repurchases, (ii) any Wholly-Owned Subsidiary may declare and pay dividends to
the Company, (iii) solely to the extent required by applicable law, for payments
in connection with applicable dissenter's rights of shareholders of the Company,
and (iv) voluntary redemptions by the Company of outstanding warrants issued in
1993 to purchase shares of the common stock of the Company, which warrants are
exercisable on or before January 14, 2000 at $8.30 per share.
Section 11 Indebtedness. The Company will not, nor will it
permit any Subsidiary to create, incur or suffer to exist any Indebtedness,
except:
(a) Indebtedness under this Agreement and the other Loan
Documents.
(b) Guaranties (excluding Guaranties of obligations of
Subsidiaries to the extent that the obligations guaranteed thereby do not
constitute Indebtedness and the obligations so guaranteed are permitted to be
incurred by such Subsidiary hereunder) in an amount not to exceed, without
duplication when aggregated with the Indebtedness permitted under clauses (d)
and (f) of this Section 6.11, $10,000,000 at any one time outstanding.
(c) Indebtedness of (i) the Company to any Wholly-Owned
Subsidiary (other than an Excluded Subsidiary), (ii) any Wholly-Owned Subsidiary
to any other Wholly-Owned Subsidiary (other than an Excluded Subsidiary) to the
extent, but only to the extent, that such Indebtedness arises under the cash
management system of the Company and its Subsid- iaries in existence on the
Closing Date or (iii) any Wholly-Owned Subsidiary to the Company (A) pursuant to
the cash management system of the Company as in effect on the Closing Date or
(B) with respect to Intercompany Acquisition Loans, which Indebtedness is
evidenced by Intercompany Acquisition Notes which have been pledged and
delivered to the Agent, duly indorsed in blank by the Company, pursuant to the
Company Pledge Agreement.
(d) Indebtedness incurred to fund Capital Expenditures to
the extent permitted pursuant to Section 6.18 in an amount not to exceed, when
aggregated with the Indebtedness permitted under clauses (b) and (f) of this
Section 6.11, $10,000,000 at any one time outstanding.
(e) Existing Indebtedness identified on Schedule 6.11(e)
hereto.
(f) Additional Indebtedness in an amount not to exceed,
when aggregated with the Indebtedness permitted under clauses (b) and (d) of
this Section 6.11, $10,000,000 at any one time outstanding.
(g) On and after the Citicasters L/C Funding Date,
Indebtedness under the Citicasters L/C Documents.
Section 12 Merger. The Company will not, nor will it permit any
Subsidiary to, merge or consolidate with or into any other Person, except that
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(i) any Wholly-Owned Subsidiary not holding an FCC Broadcast Station License may
merge into the Company or another Wholly-Owned Subsidiary, (ii) OIA Broadcasting
L.L.C. may merge into Chesapeake Securities, Inc. and (iii) a Subsidiary may
merge with or into a Subsidiary or another Person (other than the Company) in
connection with, and for the purpose of consummating, a Permitted Acquisition.
Notwithstanding the foregoing, either a Subsidiary which has issued a Subsidiary
Guaranty shall either be the surviving corporation or the surviving corporation
shall enter into a new Subsidiary Guaranty.
Section 13 Sale of Assets. The Company will not, nor will it
permit any Subsidiary to, without the prior written approval of the Required
Banks, lease, sell or otherwise dispose of any of its property, assets or
business to any other Person (including, without limitation, any of its rights
under the Noble Documents and the Mexican Documents) (a "Disposition") except
for (i) Dispositions of inventory or of equipment which is no longer useful or
is obsolete, in each case in the ordinary course of business, (ii) Dispositions
of those assets described in Schedule 6.13, and (iii) Dispositions of any other
property, assets, or business (A) for consideration consisting of not less than
80% cash, (B) at fair market value, (C) in an arm's-length transaction and (D)
having an aggregate fair market value when added to other Dispositions made by
the Company and the Subsidiaries in reliance on this clause (iii) from and after
the Closing Date of not greater than $30,000,000; provided that no Disposition
shall be permitted under clauses (ii) or (iii) hereof if a Default shall have
occurred and be continuing or a Default or Unmatured Default shall result
therefrom. All of the Net Cash Proceeds of any Disposition shall be applied as
specified in Section 2.8 hereof, and all other proceeds shall be pledged to the
Agent to secure the Obligations, and when and as such proceeds are reduced to
cash, such cash shall be applied as specified in Section 2.8 hereof.
The Company will not, nor will it permit any Subsidiary to,
sell, discount (except to the obligor thereof in the ordinary course of
business) or otherwise dispose of any Receivables or any interest therein, with
or without recourse, other than receivables generated by a Radio Station which
are sold to a purchaser of such Radio Station.
Section 14 Sale and Leaseback. The Company will not, nor will
it permit any Subsidiary to, sell or transfer any property in order to
concurrently or subsequently lease as lessee such or similar property.
Section 15 Investments and Acquisitions. The Company will not,
nor will it permit any Subsidiary to, make or suffer to exist any Investments
(including, without limitation, loans and advances to, and other Investments in,
the Company or the Subsidiaries), or commitments therefor, or to create any
Subsidiary or to become or remain a partner in any partnership or joint venture,
or to make any Acquisition of any Person, except for (i) Permitted Acquisitions
which may be consummated without violating any of the other terms hereof,
provided, that the Agent has received a perfected first priority security
interest in the assets so acquired or the assets and stock of the Subsidiary so
acquired which shall be used to accomplish any such Acquisition as required
pursuant to Section 2.17, provided further, however, that the Banks agree that
the Agent will not receive a security interest in either such assets or stock if
and to the extent that such security interest in favor of the Agent would
violate applicable law and (ii) such of the following Investments as the Agent
has received a perfected first priority security interest
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(other than the Investments described in Section 6.15(c)(iv), (g) (to the extent
that such investments are not evidenced by stock certificates or other
instruments) or (h) or to the extent not required for those Investments
described on Schedule 6.15(f)):
(a) Short-term obligations of, or fully guaranteed by,
the United States of America.
(b) Commercial paper rated A-1 or better by Standard and
Poor's Corporation or P-1 or better by Xxxxx'x Investors Service, Inc. or the
Dreyfus Cash Management Fund or the American AAdvantage Money Market Fund.
(c) Demand deposit accounts maintained in the ordinary
course of business at one or more of the Banks or pursuant to an account
agreement which shall be satisfactory to the Agent, except for (i) xxxxx cash in
an amount not to exceed, in the aggregate for all Radio Stations, $150,000 plus
an additional $6,000 following any Acquisition at any time, (ii) accounts
established by the Company or any Subsidiary in connection with promotions with
funds and other amounts credited thereto not to exceed $25,000 in the aggregate
at any time, (iii) payroll accounts, provided that the amount credited thereto
shall not on any day exceed the sum of all payroll checks then outstanding plus
the aggregate amount of all payroll checks to be issued on the next Business
Day, (iv) an account maintained by the Company to fund withdrawals from its
401(k) plan, provided that amounts credited thereto shall not exceed the sum of
all 401(k) withdrawals then pending plus $500, (v) the Disbursement Account,
provided that amounts credited thereto shall not on any day exceed the amount of
checks presented for payment on such account and which remain unpaid, and (vi)
funds held pursuant to customary lock-box arrangements, provided that such funds
shall be deposited in an account maintained at one or more of the Banks or
pursuant to an account agreement satisfactory to the Agent not later than one
Business Day after the day on which funds are first deposited in any such lock-
box.
(d) Certificates of deposit issued by and time deposits
with commercial banks (whether domestic or foreign) having capital and surplus
in excess of $100,000,000.
(e) Loans and advances constituting Indebtedness of the
Company or a Wholly-Owned Subsidiary permitted by the terms of Section 6.11(c),
provided that, with respect to any such Indebtedness of a Wholly-Owned
Subsidiary to the Company, such Indebtedness shall be evidenced by an
Intercompany Demand Note or an Intercompany Acquisition Note which has been
pledged and delivered to the Agent (duly indorsed in blank) pursuant to the
Company Pledge Agreement and shall be secured by substantially all of the assets
of such Subsidiary pursuant to the Intercompany Security Agreement.
(f) The Investments set forth on Schedule 6.15(f) hereto.
(g) Additional Investments not exceeding, in the
aggregate for the Company and the Subsidiaries, $30,000,000 at any one time
outstanding, provided that no such additional Investments shall be made in any
Excluded Subsidiary.
(h) Funds, in an amount not in excess of $30,000
maintained in a segregated account at Society National Bank of Cleveland, in
which
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the Agent and the Banks shall not have a Lien, which funds shall be used for the
purpose of making payments in respect of cash option elections and fractional
shares and fractional warrants.
(i) Notwithstanding anything else set forth in this
Section 6.15 or elsewhere in this Agreement or the other Loan Documents, the
Company is permitted to enter into a contract committing the Company to acquire
Citicasters Inc.; but the Company shall not consummate such acquisition without
the prior written consent of Agent and the Required Banks.
Section 16 Guaranties. The Company will not, nor will it permit
any Subsidiary to, make or suffer to exist any Guaranty (including, without
limitation, any Guaranty of the obligations of a Subsidiary), except (a)
Guaranties arising under the Collateral Documents, (b) those Guaranties
identified on Schedule 6.11(e), (c) Guaranties of obligations of Subsidiaries to
the extent that the obligations guaranteed thereby do not constitute
Indebtedness and the obligations so guaranteed are permitted to be incurred by
such Subsidiary hereunder and (d) Guaranties permitted under Section 6.11(b).
Section 17 Liens. The Company will not, nor will it permit any
Subsidiary to, create, incur, or suffer to exist any Lien in, of or on any of
the property or assets of the Company or any Subsidiary, except:
(a) Liens for taxes, assessments or governmental charges
or levies on its property and assets if the same shall not, at the time, be
delinquent or thereafter can be paid without penalty, or are being contested in
good faith and by appropriate proceedings diligently conducted and with respect
to which the Company or such Subsidiary is maintaining adequate reserves in
accordance with Generally Accepted Accounting Principles.
(b) Liens imposed by law, such as carriers',
warehousemen's and mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of obligations not more than 60
days past due or are being contested in good faith and by appropriate
proceedings diligently conducted and with respect to which the Company or such
Subsidiary as maintaining adequate reserves in accordance with Generally
Accepted Accounting Principles.
(c) Liens arising out of pledges or deposits under
worker's compensation laws, unemployment insurance, old age pensions, or other
social security or retirement benefits, or similar legislation and deposits made
in the ordinary course of business to secure obligations to public utilities and
under leases and contracts (other than contracts for Indebtedness).
(d) Utility easements, building restrictions,
reservations, encroachments, easements, exceptions, rights-of-way, covenants,
conditions and such other title exceptions, encumbrances or charges against real
property as are of a nature generally existing with respect to properties of a
similar character and which do not in any material way affect the marketability
of the same or interfere with the use thereof in the business of the Company or
the Subsidiaries.
(e) Attachments, judgments and other similar Liens
arising in connection with court proceedings, provided, that the execution or
other enforcement of such Liens is effectively stayed and the claims secured
thereby
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are being contested in good faith by appropriate proceedings diligently
conducted.
(f) Liens on property of a Subsidiary, provided that such
Liens secure only obligations owing by such Subsidiary to the Company or another
Subsidiary and are assigned to the Agent for the ratable benefit of the Banks.
(g) Liens in favor of the Agent and the Banks created
pursuant to the Collateral Documents.
(h) Liens granted to secure the Indebtedness permitted by
Section 6.11(d) or (f), provided that no such Lien shall extend to any property
other than the property purchased concurrently with the incurrence of such
Indebtedness.
(i) Existing Liens identified on Schedule 6.17 (i)
hereto.
Section 18 Capital Expenditures. The Company will not, nor will
it permit any Subsidiary to, make, or commit to make, without double-counting,
Capital Expenditures (other than Capital Expenditures made with insurance
proceeds to repair or replace damaged, destroyed, lost or stolen fixed assets
not in excess of $250,000 per fiscal year and Capital Expenditures financed with
Net Cash Proceeds from the asset sales made by the Company and the Subsidiaries
in the ordinary course of their respective businesses which are permitted to be
retained by the Company and the Subsidiaries pursuant to Section 2.8) other than
the following:
(a) Permitted Acquisitions.
(b) Capital Expenditures incurred by the Company and the
Subsidiaries in connection with broadcast radio operations owned or managed by
the Company and the Subsidiaries on the Closing Date in an amount not to exceed
the sum of $3,500,000 plus the applicable New Station Capex Increase (if any) in
the aggregate during any fiscal year of the Company (collectively "Existing
Radio Expenditure Maximum").
(c) Capital Expenditures incurred by the Company and the
Subsidiaries in connection with broadcast radio stations (other than those
referred to in clause (b) of this Section 6.18) which are acquired by the
Company and the Subsidiaries after the Closing Date (each, a "New Station") in
an amount not to exceed $300,000 for each such New Station or multiple New
Stations using a single facility during the fiscal year in which such radio
operations are first acquired ("New Radio Expenditure Maximum").
(d) Capital Expenditures incurred by the Company and the
Subsidiaries after the Closing Date in connection with the relocation of the
broadcast radio operations of the Company and the Subsidiaries in Atlanta,
Georgia in an aggregate amount not to exceed $500,000.
(e) Capital Expenditures incurred by the Company and its
Subsidiaries in connection with the acquisition of a studio facility in Tampa,
Florida in an amount not to exceed $3,000,000.
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(f) Capital Expenditures incurred by the Company and its
Subsidiaries in connection with the acquisition of a building in Cincinnati,
Ohio for use as a corporate facility, in an amount not to exceed $800,000.
Notwithstanding the foregoing, if in any fiscal year the
Company expends or commits to expend, without double- counting, less than the
Existing Radio Expenditure Maximum or the New Radio Expenditure Maximum for any
broadcast radio station, an amount equal to the difference between the Existing
Radio Expenditure Maximum or the New Radio Expenditure Maximum for any broadcast
radio station, as the case may be, and the amount actually expended or committed
to be expended, without double-counting, in such fiscal year may be expended in
the immediately subsequent fiscal year in addition to the Existing Radio
Expenditure Maximum or the New Radio Expenditure Maximum for such broadcast
radio station, respectively, otherwise permitted to be expended in such
subsequent year.
Section 19 Rentals. The Company will not, nor will it permit
any Subsidiary to, create, incur or suffer to exist obligations for Rentals in
excess of $10,000,000 during any one fiscal year in the aggregate for the
Company and the Subsidiaries.
Section 20 Affiliates. Except for transactions described in
Schedule 6.20 hereto, the Company will not, and will not permit any Subsidiary
to, enter into any transaction (including, without limitation, the purchase or
sale of any property or service), with, or make any payment or transfer to, any
Affiliate except in the ordinary course of business and pursuant to the
reasonable requirements of the Company's or such Subsidiary's business and upon
fair and reasonable terms no less favorable to the Company or such Subsidiary
than the Company or such Subsidiary would obtain in a comparable arm's-length
transaction.
Section 21 Management Fees. The Company will not, nor will it
permit any Subsidiary to, pay or become obligated to pay, any management or
other similar fee to Z/C or any of its Affiliates (other than reasonable and
customary fees for services actually rendered by professionals).
Section 22 Interest Rate Protection, etc.
(a) At any time when the one-month Eurodollar Base Rate
equals or exceeds 8.00% per annum, the Company shall enter into (to the extent
it has not already done so) interest rate protection agreements (each, a "Rate
Hedging Agreement") with one or more financial institutions (provided that such
financial institution or financial institutions are offering terms and
conditions generally available within the applicable market at such time), which
Rate Hedging Agreements, when taken together, shall have an aggregate notional
principal amount at least equal to 50% of the aggregate principal amount of the
Loans outstanding on the date of such agreement (the "Hedged Amount") pursuant
to which the effective interest rate (inclusive of all fees and costs related to
the Rate Hedging Agreements) payable by the Company with respect to such Hedged
Amount will be fixed or capped at a rate no greater than 8.00% per annum plus
the Applicable Margin for a period ending not earlier than the third anniversary
of the first date subsequent to such date on which such interest rate equals or
exceeds 8.00% per annum. All obligations by the Company to any Bank (or an
Affiliate thereof) under any Rate Hedging
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Agreement shall be secured by the Collateral, pari passu, with the Obligations
under the Loan Documents.
(b) Neither the Company nor any Subsidiary shall enter
into or become liable (directly or indirectly, absolutely or contingently) in
any way under or with respect to any interest rate protection agreement
(including, without limitation, any interest rate swaps, caps, floors, collars
or similar agreements) or any currency swaps or similar agreements except as
required under Section 6.22(a) and except for such other interest rate
protection agreements entered into by the Company with an aggregate notional
principal amount, when combined with the notional principal amount of any Rate
Hedging Agreements then maintained pursuant to Section 6.22(a), not in excess of
the outstanding principal amount of the Loans at such time.
Section 23 Certain Agreements. The Company shall not, and shall
not permit any of the Subsidiaries to, enter into any agreement (other than the
Loan Documents) which restricts the ability of the Company or any of its
Subsidiaries to (a) enter into amendments, modifications or waivers of the Loan
Documents, (b) sell, transfer or otherwise dispose of its assets, (c) create,
incur, assume or suffer to exist any Lien upon any of its property, (d) create,
incur, assume, suffer to exist or otherwise become liable with respect to any
Indebtedness, or (e) make any Restricted Payment, provided that Capital Leases
or agreements governing purchase money Indebtedness which contain restrictions
of the types referred to in clauses (b) or (c) with respect to the property
covered thereby and contracts entered into in the ordinary course of business
which contain standard non-assignment clauses shall be permitted.
Section 24 Fiscal Year; Fiscal Quarter. The Company shall not,
and shall not permit any of the Subsidiaries to, change its fiscal year or any
of its fiscal quarters.
Section 25 Amendment to Other Agreements. The Company shall
not, and shall cause the Subsidiaries not to, amend, modify or waive any
provision of the Intercompany Security Agreement, any Intercompany Demand Notes
or any Intercompany Acquisition Notes without the prior written consent of the
Agent on behalf of the Required Banks.
Section 26 Subsidiary Operations. The Company will not, nor
will it permit any Subsidiary to, activate, make any further Investment in or
contribute any assets to an Excluded Subsidiary and the Company will not permit
any Excluded Subsidiary to incur any Indebtedness or other obligations other
than Indebtedness to the Company existing on the Closing Date. The Company will
not, nor will it permit any Subsidiary to, make any further Investment in or
contribute any assets to Georgia Network Equipment, Inc. or permit Georgia
Network Equipment, Inc. to change its business as operated on the Closing Date
or to incur any Indebtedness or other obligations or to purchase any other
assets except for purchases of satellite dishes and related equipment in an
aggregate amount not to exceed $100,000.
Section 27 FCC Licenses. The Company shall not obtain, hold or
be licensee under any FCC Broadcast Station License.
Section 28 Deposit Accounts. The Company shall not, and shall
not permit any Subsidiary to, open any new deposit accounts with any bank or
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other financial institution (other than xxxxx cash and promotional accounts to
the extent the same are permitted under Section 6.15) and as required by Section
6.29 without the prior written consent of the Agent.
Section 29 Cash Management System.
(a) The Company shall cause (i) each of the Subsidiaries
(other than Excluded Subsidiaries) to maintain a single, common, demand deposit
disbursement account (the "Disbursement Account") through which all of their
respective accounts payable and other disbursements shall be made, (ii) each
such Subsidiary shall maintain one or more officers who are common to all such
Subsidiaries to be the authorized signatories to the Disbursement Account, (iii)
all disbursements made from the Disbursement Account on behalf of any Subsidiary
to be made by such Subsidiary and (iv) all disbursements made on behalf of two
or more Subsidiaries to be made by each such Subsidiary, respectively, in an
amount equal to the amount of such disbursement attributable to such Subsidiary
provided, that disbursements on behalf of two or more Subsidiaries may be
combined into a single disbursement if the Company and Subsidiaries comply with
subsection (b) hereof with respect thereto.
(b) The Company shall maintain, on behalf of itself and
the Subsidiaries, accurate, complete and objectively verifiable accounting
systems, books and records with respect to the Disbursement Account, which books
and records shall indicate, on an as-drawn basis, each disbursement from the
Disbursement Account and identify, with respect to each disbursement, the
Subsidiary or Subsidiaries making such disbursement and, in the case of two or
more Subsidiaries making a single disbursement, the respective amounts of such
disbursement attributable to each respective Subsidiary.
(c) In maintaining the cash management system outlined in
this Section 6.29, the Company agrees to consult with, and at all times maintain
a cash management system reasonably satisfactory to, the Agent and the Required
Banks. The Company further agrees to deliver to the Agent and each Bank all such
information, documents and agreements relating to such cash management system as
any of them shall request.
Section 30 Amendments and Waivers to Noble Documents, the
Mexican Documents and the Employment Agreements. Without the prior written
consent of the Agent and the Required Banks, the Company shall not, and shall
not permit any Subsidiary to, enter into any material amendment to, or grant any
material waiver, release or consent with respect to, any of the terms and
conditions of any of the Noble Documents, the Mexican Documents or the
Employment Agreements, provided that in any event, no such amendment, waiver or
consent shall have any effect on the enforceability of any of the Noble
Documents, the Mexican Documents or the Employment Agreements, or on the ability
of the Company or any Subsidiary party thereto or the Agent, on behalf the
Banks, to enforce such agreements pursuant to any of the terms and conditions
thereof or pursuant to the Collateral Documents or otherwise.
Section 31 Intercreditor Agreement and the Citicasters L/C
Documents. Neither the Company nor any of its Subsidiaries shall enter into any
of the Citicasters L/C Documents until the Agent, the Banks and the L/C
Providers shall have entered into an intercreditor agreement, the subordination
provisions of which shall be in form and substance satisfactory to Banks having
in the aggregate at least 80% of the Aggregate Commitment or, if the
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Aggregate Commitment has been terminated, Banks holding in the aggregate at
least 80% of the aggregate unpaid principal amount of the outstanding Loans. The
Company hereby agrees that (i) it will not effect any Citicasters L/C Documents
unless such documents are effected by one or more Banks and/or by any other
Person, provided each such other Person shall be approved by all of the Banks,
and (ii) neither the Company nor any of its Subsidiaries shall apply the
proceeds of any Loan to pay principal of, or interest on, any Indebtedness
evidenced by any of the Citicasters L/C Documents.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
Section 1 Any representation or warranty made or deemed made by
or on behalf of the Company or any Subsidiary to the Banks or the Agent under or
in connection with this Agreement, any other Loan Document, or any certificate
or information delivered in connection with this Agreement or any other Loan
Document shall be materially false or misleading on the date as of which made or
deemed made.
Section 2 Nonpayment of principal of any Loan when due.
(a) Nonpayment of interest upon any Loan or of any fees
or other obligations under any of the Loan Documents within three (3) Business
Days after the same becomes due.
(b) Failure of any "Guarantor" (as defined in the Mexican
Guaranty) to make any payment when due or perform any obligation pursuant to the
terms and provisions of the Mexican Guaranty, which failure continues unremedied
for a period commencing from the occurrence of any such failure until the later
of (i) thirty (30) days and (ii) the Mexican Guaranty Grace Period.
Section 3 The Company shall default in the due performance or
observance of any term, covenant or agreement contained in (a) Section 6.2
(other than Section 6.2(a)) and such default shall continue unremedied for a
period of fifteen (15) days or (b) Section 6.1, 6.4, 6.5, 6.6, 6.7, 6.8 or the
last sentence of Section 6.9 and such default shall continue unremedied for a
period of thirty (30) days.
Section 4 The breach by the Company (other than a breach which
constitutes a Default under Section 7.1, 7.2 or 7.3) of any of the terms or
provisions of this Agreement.
Section 5 Failure of the Company or any Subsidiary to pay any
Indebtedness (other than the Obligations) in excess of $1,000,000 in the
aggregate when due; or the default by the Company or any Subsidiary in the
performance of any term, provision or condition contained in any agreement under
which any such Indebtedness (other than the Obligations) was created or is
governed, the effect of which is to cause, or to permit the holder or holders of
such Indebtedness to cause, such Indebtedness to become due prior to
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its stated maturity; or any such Indebtedness shall be declared to be due and
payable or required to be prepaid (other than by a regularly scheduled or
contractually provided for payment (other than pursuant to an acceleration or
similar clause)) prior to the stated maturity thereof.
Section 6 The Company or any Subsidiary shall (a) have an order
for relief entered with respect to it under the Federal Bankruptcy Code, (b) not
pay, or admit in writing its inability to pay, its debts generally as they come
due, (c) make an assignment for the benefit of creditors, (d) apply for, seek,
consent to, or acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any substantial part of its
property, (e) institute any proceeding seeking an order for relief under the
Federal Bankruptcy Code or seeking to adjudicate it a bankrupt or insolvent, or
seeking dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail to file an
answer or other pleading denying the material allegations of any such proceeding
filed against it, (f) take any corporate action to authorize or effect any of
the foregoing actions set forth in this Section 7.6 or (g) fail to contest in
good faith any appointment or proceeding described in Section 7.7.
Section 7 Without the application, approval or consent of the
Company or any Subsidiary, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Company or any Subsidiary or any substantial
part of its property, or a proceeding described in Section 7.6(e) shall be
instituted against the Company or any Subsidiary and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period
of 60 consecutive days.
Section 8 Any court, government or governmental agency shall
condemn, seize or otherwise appropriate, or take custody or control of all or
any substantial portion of the assets of the Company or any Subsidiary. For
purposes of this Section 7.8, "substantial portion" means assets (valued at the
higher of book or fair market value) having a value in excess of 10% of the
consolidated assets of the Company and the Subsidiaries.
Section 9 The Company or any Subsidiary shall fail within 30
days to pay, bond or otherwise discharge any judgment or order for the payment
of money in excess of $1,000,000, which is not stayed on appeal or otherwise
being appropriately and diligently contested in good faith by appropriate
proceedings, unless the payment of all such amounts in excess of $1,000,000 is
fully insured by a financially responsible insurance company.
Section 10 With respect to any Company Plan, a Reportable Event
shall have occurred which is reasonably likely to result in the Company or any
Subsidiary incurring a liability or obligation to such Plan in excess of
$2,000,000; or
(a) With respect to any Plan (other than a Company Plan),
a Reportable Event shall have occurred which is reasonably likely to result in
the Company and/or the Subsidiaries being obligated to make a payment in excess
of $2,000,000; or
(b) The PBGC, the Company, any Subsidiary, any ERISA
Affiliate of the Company or any Subsidiary or any other Person shall have
initiated
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steps to terminate a Plan, or to have a trustee appointed for a Plan under
Section 4042 of ERISA, if as the result of such appointment or termination, the
Company or any Subsidiary is reasonably likely to be required to make a
contribution to such Plan, or to incur liability or obligation to such Plan, or
the PBGC, in excess of $2,000,000; or
(c) The Company, any Subsidiary or any of their ERISA
Affiliates shall have terminated, reorganized or withdrawn from a Multiemployer
Plan, if as the result of such withdrawal, termination or reorganization the
Company or any Subsidiary incurs a liability to such Multiemployer Plan in
excess of $2,000,000, which liability is not paid when required by applicable
law (unless it is being appropriately and diligently contested in good faith by
appropriate proceedings); or
(d) The Company or any Subsidiary shall have received any
notice from the PBGC (and such notice shall either demand payment from the
Company or any Subsidiary or shall suggest or indicate that the PBGC may
initiate an administrative or judicial action against the Company or any
Subsidiary) with respect to Unfunded Liabilities in excess of $2,000,000 of any
Plan, or the PBGC shall have initiated an administrative or judicial action with
respect to Unfunded Liabilities in excess of $2,000,000 of any Plan.
Section 11 The occurrence of any "default", as defined in any
Loan Document (other than the Agreement or the Notes), or the breach of any of
the terms or provisions of any Loan Document (other than the Agreement or the
Notes), which default or breach continues beyond any period of grace therein
provided.
Section 12 Any obligation of any Subsidiary under the
Subsidiary Guaranty shall fail to remain in full force or effect or any action
shall be taken to discontinue or to assert the invalidity or unenforceability of
any obligation of any Subsidiary under the Subsidiary Guaranty, or any
Subsidiary denies that it has any further liability under any Subsidiary
Guaranty to which it is a party, or gives notice to such effect.
Section 13 Any Collateral Document shall for any reason fail to
create a valid and perfected first priority security interest in any Collateral
purported to be covered thereby, except as permitted by the terms hereof or of
such Collateral Document, or shall fail to remain in full force or effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Collateral Document.
Section 14 Any license, authorization, consent or permit
necessary for the ownership or essential for the operation of any of the Radio
Stations by the Company or any Subsidiary (a "License") shall expire, and on or
prior to such expiration, the same shall not have been or be in the process of
being renewed or replaced by another license, authorization, consent or permit
authorizing substantially the same operations of the Radio Stations by the
Company or any Subsidiary; or
(a) (i) any License (A) shall be cancelled, revoked,
terminated, rescinded, annulled, suspended or modified in a materially adverse
respect, or (B) shall no longer be in full force and effect and shall not be in
the process of renewal or replacement or (ii) the grant or the effec-
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tiveness of any such License shall have been stayed, vacated, reversed or set
aside, and, in each case, such action shall be no longer subject to further
administrative or judicial review; or
(b) in any renewal or revocation proceeding involving any
license necessary for the ownership or essential for the operation of any of the
Radio Stations, any administrative law judge of the FCC (or successor to the
functions of an administrative law judge of the FCC) shall have issued an
initial decision to the effect that the Company or any Subsidiary lacks the
qualifications to hold any FCC broadcast license, and such initial decision
shall not have been timely appealed or shall otherwise have become an order that
is final and no longer subject to further administrative or judicial review or
such administrative law judge shall issue a favorable determination on such
matters, which determination shall subsequently be reversed on appeal
provided, however, that none of the foregoing events described in this Section
7.14 shall constitute a Default if, assuming the final non-appealable loss by
the Company or any Subsidiary of any such license, authorization, consent or
permit at the conclusion of all legal proceedings incident thereto, such loss
would in the reasonable judgment of the Required Banks not materially adversely
affect the value of any material item or amount of Collateral or the Company's
or any Subsidiary's ability to perform its obligations under the Loan Document);
Section 15 Any Person shall take any action to enforce,
foreclose upon or take similar action with respect to any Lien (whether or not
permitted by the terms of this Agreement) on any material item or amount of
Collateral.
Section 16 Any Person or group (as defined for purposes of
Regulation 13D promulgated pursuant to The Securities Exchange Act of 1934, as
amended), other than Z/C or its Affiliates, shall acquire or become the
beneficial owner of more than 50% of the outstanding voting securities of the
Company or if the Company enters into a transaction such as (i) a sale of all or
substantially all of the assets of the Company, or (ii) a merger, acquisition or
consolidation (or other similar business combination transaction) pursuant to
which (x) the Company is not the surviving corporation or (y) after giving
effect to such transaction, there is a new majority shareholder of the Company.
Section 17 Z/C, shall at any time fail to have its designees
constitute at least 30% in number of the members of the Company's board of
directors.
Section 18 Any of the following events shall occur with respect
to any of the following Noble Documents or Mexican Documents:
(a) The Class B Shares of Noble shall not have been
transferred into the Stock Trust (as each such term is defined in the Noble
Stock Purchase and Warrant Redemption Agreement) by the 20th Business Day after
the required short-form FCC approval to such transfer has been obtained.
(b) The Stock Closing shall not occur on the Stock
Closing Date (as each such term is defined in the Noble Stock Purchase and
Warrant Redemption Agreement) in accordance with the provisions of the Noble
Stock Pur-
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chase and Warrant Redemption Agreement, in each case, as in effect on the
Closing Date or as amended in accordance with Section 6.30 hereof.
(c) Within 20 Business Days of the receipt of the Mexican
Approval, the Mexican Concession of RDP shall not have been transferred to XETRA
Communicaciones, S.A. de C.V. in accordance with the Mexican Documents.
(d) An Event of Default under (and as defined in) the
Noble-Company Credit Agreement (as in effect on the Closing Date) (i) arising
pursuant to either Section 7.1 or, 7.2 shall have occurred and be continuing
(after giving effect to any applicable grace periods set forth in such
Noble-Company Credit Agreement) and such Event of Default shall remain
unremedied for a period of 90 days after the occurrence thereof, or (ii) arising
pursuant to any other Section of such Noble- Company Credit Agreement if, with
respect to clause (ii) of this Section 7.18(e), such breach would be reasonably
expected to have a material adverse effect on the business, operations,
condition (financial or otherwise) of the Company and its Subsidiaries, taken as
a whole.
(e) Jacor or any of its Affiliates shall take any action
to discontinue or to assert the invalidity or unenforceability of any obligation
of any such Person (including, without limitation, Jacor or any such Affiliates)
under any of the Noble Documents or any of the Mexican Documents, or Jacor or
any of its Affiliates denies that it is obligated to perform any of its
obligations under the terms of any Noble Document or any Mexican Document, or
gives notice to such effect.
(f) (i) Any Person party to any of the Noble Documents or
any of the Mexican Documents shall fail to perform any term or condition of the
Noble Documents or the Mexican Documents, as the case may be, in accordance with
the respective terms thereof, or (ii) any obligation of any Person under any of
the Noble Documents or any of the Mexican Documents shall fail to remain in full
force or effect, and in the case of subclauses (i) or (ii) of this Section
7.18(f), such failure would be reasonably expected to have a material adverse
effect on the business, operations, condition (financial or otherwise) of the
Company and its Subsidiaries, taken as a whole.
(g) The Company or any of its Subsidiaries shall fail to
actively pursue, on a best efforts basis, any of its material rights or remedies
under any of the Noble Documents or any the Mexican Documents.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
Section 1 Acceleration. If any Default described in Section 7.6
or 7.7 shall occur with respect to the Company, the Aggregate Commitments and
the obligation of the Banks to make Loans hereunder shall automatically and
immediately terminate and the unpaid principal amount of the Loans and all of
the other Obligations shall automatically and immediately become due and payable
without any election or action on the part of the Agent or any Bank and without
presentment, demand, protest or notice or any other requirement of any kind, all
of which the Company hereby expressly waives. If any other Default shall occur
and be continuing, upon the direction of the Required Banks
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the Agent shall, (i) declare that the Aggregate Commitments are terminated,
whereupon the Aggregate Commitments and the obligation of the Banks to make
Loans hereunder shall be immediately terminated and (ii) declare the unpaid
principal amount of the Loans and the other Obligations to be due and payable,
whereupon the same shall immediately be and become due and payable, without
presentment, demand, protest or notice or any other requirement of any kind, all
of which the Company hereby expressly waives.
Section 2 Amendments. Subject to the provisions of this Article
VIII and except as otherwise provided in any Loan Document, amendments or
agreements supplemental hereto (and thereto, with respect to the relevant
Subsidiary in the case of the Subsidiary Guaranty, the Subsidiary Security
Agreement, a Subsidiary Pledge Agreement, a Subsidiary Trademark Agreement or a
Subsidiary Mortgage) may be entered into for the purpose of adding or modifying
any provisions of this Agreement or any of the other Loan Documents or changing
in any manner the rights of the Banks or the Company or any Subsidiary hereunder
or thereunder or waiving any Default hereunder or thereunder ("Amendments"),
under the terms and in the manner set forth below:
(a) With respect to Amendments that forgive or reduce
principal or interest or reduce the interest rate payable with respect to any
Loan or Obligation or postpone any date fixed for any regularly-scheduled
payment (including prepayments under Sections 2.8) of principal of, or interest
on, any such Loan or Obligation, postpone any Revolving A Loan Commitment
Reduction Date or any Revolving B Loan Commitment Reduction Date, change the
definitions of Amendment, Aggregate Commitment, Aggregate Revolving A Loan
Commitment, Aggregate Revolving B Loan Commitment, Revolving A Loan Commitment,
Revolving B Loan Commitment, Revolving A Loan Termination Date, Revolving B Loan
Termination Date, Revolving A Loan Commitment Reduction Amount, Revolving B Loan
Commitment Reduction Amount, Leverage Ratio (to the extent that the same would
affect the Applicable Margin) or Required Banks, amend or waive Section 2.4 (or
amend the definition of any of the terms used in such Section to the extent that
the same would affect the Applicable Margin), amend or waive this Section 8.2 or
Section 12.1 hereof, waive the payment of or reduce or defer any fees payable to
the Banks hereunder, consent or permit the assignment or transfer by the Company
or any Subsidiary of any of its obligations under any of the Loan Documents or
release any guarantor or release all or any substantial portion of the
Collateral from the Liens created by the Collateral Documents (except as may be
expressly contemplated in the Loan Documents), all of the Banks must approve
such Amendments in writing; provided, that nothing contained in this Section
8.2(a) shall restrict the ability of the Required Banks to make determinations
provided in the definition of Operating Cash Flow;
(b) With respect to Amendments that delay or reduce the
amount of any mandatory prepayment hereunder (other than as set forth in Section
8.2(a) hereof), Banks with 85% of the Aggregate Commitments (or, if the
Aggregate Commitments have been terminated, Banks holding 85% of the outstanding
principal amount of the Loans) must approve such Amendment in writing; and
(c) With respect to any other Amendment, the Banks then
constituting the Required Banks must approve such Amendments in writing.
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No amendment of any provision of this Agreement or any other
Loan Document relating to the Agent shall be effective without the written
consent of the Agent.
Section 3 Preservation of Rights. No delay or omission of the
Banks or the Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Loan notwithstanding the existence of a Default or
the inability of the Company to satisfy the conditions precedent to such Loan
shall not constitute any waiver or acquiescence. Any single or partial exercise
of any such right shall not preclude other or further exercise thereof or the
exercise of any other right, and no waiver, amendment or other variation of the
terms, conditions or provisions of the Loan Documents whatsoever shall be valid
unless in writing signed by the Company, the Subsidiary(ies) party thereto and
the Agent and by the Banks required pursuant to Section 8.2, and then only to
the extent in such writing specifically set forth. All remedies contained in the
Loan Documents or by law afforded shall be cumulative and all shall be available
to the Agent and the Banks until the Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
Section 1 Survival of Representations. All representations and
warranties of the Company contained in this Agreement shall survive delivery of
this Agreement and the Notes and shall continue in full force and effect until
the Obligations have been paid in full.
Section 2 Governmental Regulation. Anything contained in this
Agreement to the contrary notwithstanding, no Bank shall be obligated to extend
credit to the Company in violation of any limitation or prohibition provided by
any applicable statute or regulation.
Section 3 Taxes. Any stamp, documentary and similar taxes and
taxes in connection with the execution, delivery, filing or recordation of any
of the Loan Documents shall be paid by the Company.
Section 4 Headings. Section headings in the Loan Documents are
for convenience of reference only, and shall not govern the interpretation of
any of the provisions of the Loan Documents.
Section 5 Entire Agreement. The Loan Documents embody the
entire agreement and understanding among the Company, the Subsidiaries, the
Agent and the Banks and supersede all prior agreements and understandings among
the Company, the Subsidiaries, the Agent and the Banks relating to the subject
matter thereof.
Section 6 Several Obligations. The respective obligations of
the Banks hereunder are several and not joint and no Bank shall be the partner
or agent of any other (except to the extent to which the Agent is authorized to
act as such). The failure of any Bank to perform any of its obligations
hereunder shall not relieve any other Bank from any of its obligations
hereunder. This Agreement shall not be construed so as to confer any right or
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benefit upon any Person other than the parties to this Agreement and their
respective successors and assigns.
Section 7 Expenses; Indemnification. The Company shall
reimburse (i) the Agent for any reasonable costs, internal charges and
out-of-pocket expenses (including attorneys' fees and time charges of attorneys
for the Agent, which attorneys may be employees of the Agent) paid or incurred
by the Agent in connection with the negotiation, documentation, preparation,
review, execution, delivery, amendment, modification and administration of this
Agreement and the other Loan Documents (including without limitation, reasonable
costs and out-of-pocket expenses incurred in connection with post-closing UCC
searches and the analysis thereof) or any other documents reasonably required to
be reviewed or prepared in connection herewith or therewith and all
out-of-pocket expenses incurred by the Agent in connection with the taking and
perfection of Liens on the Collateral (including, without limitation, title and
lien searches, surveys, title commitment and insurance costs, filing fees and
documentary, stamp, filing and similar taxes and corporate search fees), (ii)
the Agent, each Co-Agent and each of the Banks for any reasonable costs,
internal charges and out-of-pocket expenses (including attorneys' fees and time
charges of attorneys for the Agent and the Banks, which attorneys may be
employees of the Agent or any Bank) paid or incurred by the Agent, any Co-Agent
or any Bank in connection with the collection and enforcement or amendment or
modification of the Loan Documents or any restructuring in respect of the
Obligations and (iii) the Agent, any Co-Agent or any Bank for any cost and
expense of obtaining any appraisals in respect of the assets of the Company or
any Subsidiary, to the extent any Bank determines that such appraisals are
required by any law or any governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law), or any interpretation
thereof, including, without limitation, the provisions of Title XI of the
Financial Institutions Reform, Recovery and Enforcement Act of 1989, and any
rules promulgated to implement such provisions. The Company further agrees to
indemnify the Agent, each Co-Agent and each Bank, and their respective
directors, officers, attorneys, agents, and employees, for, and hold each of
them harmless against, all losses, claims (including, without limitation, all
Environmental Claims), damages, penalties, judgments, liabilities, actions,
proceedings, costs and expenses (including, without limitation, all attorney's
fees and legal expenses incurred by any of them and other expenses of litigation
or preparation therefor whether or not any suit or proceeding is brought or, if
so, whether or not the Agent, any Co-Agent or any Bank is a party thereto) which
any of them may pay or incur arising out of or relating to this Agreement, the
other Loan Documents, the transactions contemplated hereby or thereby or any
act, event or omission related hereto or thereto or the direct or indirect
application or proposed application of the proceeds of any Loan hereunder,
provided, however, that no such Agent, Co-Agent, Bank, director, officer,
attorney, agent or employee shall have a right to be indemnified or held
harmless hereunder for its own gross negligence or willful misconduct as finally
determined in a judgment of a court of competent jurisdiction. The obligations
of the Company under this Section shall survive the repayment of the Obligations
and the termination of this Agreement.
Section 8 Numbers of Documents. All statements, notices,
closing documents, and requests hereunder shall be furnished to the Agent with
sufficient counterparts so that the Agent may furnish one to each of the Banks.
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Section 9 Accounting. Except as provided to the contrary
herein, all accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles, except that any calculation or determination which is to be made on
a consolidated basis shall be made for the Company and all of the Subsidiaries,
including those Subsidiaries, if any, which are unconsolidated on the Company's
audited financial statements. In the event that Generally Accepted Accounting
Principles change after the Closing Date in any manner that would cause the
result of the calculation of any financial ratio under Agreement Accounting
Principles pursuant to Section 6.3 to be materially different than the result
that would have been obtained had Generally Accepted Accounting Principles been
applied in such calculation, the Company, the Agent and the Banks hereby agree
to negotiate in good faith to amend this Agreement to accommodate the Company's
desire not to maintain two sets of financial records.
Section 10 Severability of Provisions. Any provision in any
Loan Document that is held to be inoperative, unenforceable or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable or
invalid without affecting the remaining provisions in that jurisdiction or the
operation, enforceability or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
Section 11 Non-liability of Bank. The relationship between the
Company and the Banks and the Agent shall be solely that of borrower and lender.
Neither the Agent nor any Bank shall have any fiduciary responsibilities to the
Company. Neither the Agent nor any Bank undertakes any responsibility to the
Company to review or inform the Company of any matter in connection with any
phase of the Company's business or operations.
Section 12 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
ILLINOIS.
Section 13 CONSENT TO JURISDICTION. THE COMPANY HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE COMPANY HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT OR ANY BANK TO BRING
PROCEEDINGS AGAINST THE COMPANY IN THE COURTS OF ANY OTHER JURISDICTION.
Section 14 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one
agreement, and any of the parties hereto may execute this Agreement by signing
any such counterpart. This Agreement shall be effective when it has been
executed by the Company, the Agent and the Banks and the Company and each Bank
have delivered to the Agent executed counterpart signature pages hereto or a
facsimile of such executed counterpart signature page.
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Section 15 Confidentiality. Each Bank agrees to hold any
information designated as confidential which it may receive from the Company
pursuant to this Agreement in confidence, except for disclosure: (i) to other
Banks, (ii) to legal counsel, accountants, and other professional advisors to
such Bank, (iii) to regulatory officials, (iv) as required by law, regulation,
legal process, or in connection with any legal proceeding, (v) information which
has previously been made public and (vi) with the consent of the Company, which
consent shall not be unreasonably withheld, in connection with an actual or
proposed sale, assignment, participation or other disposition or proposed
disposition of such Bank's interests hereunder provided that the assignee,
proposed assignee, participant or proposed participant agreed in writing to be
bound by this Section 9.15.
Section 16 Limitation of Rights. Notwithstanding any other
provision of this Agreement, any foreclosure on, sale, transfer or other
disposition of, or the exercise of any right to vote or consent with respect to,
any of the collateral purported to be covered by any Collateral Document as
provided herein or in any Collateral Document or any other action taken or
proposed to be taken by the Agent or any Bank hereunder or thereunder which
would affect the operational, voting, or other control of the Company or any
Subsidiary, shall be pursuant to Section 310 of the Communications Act of 1934,
as amended, and to the applicable rules and regulations thereunder and, if and
to the extent required thereby, subject to the prior consent of the FCC.
Section 17 Limitation of Liability. No claim may be made by the
Company, any of its Subsidiaries or any other Person against the Agent, the
Co-Agents or any Bank or the Affiliates, directors, officers, employees,
attorneys or agent 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 transactions contemplated
by this Agreement or any other Transactions, or any act, omission or event
occurring in connection therewith; and the Company (for itself and each of its
Subsidiaries) 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 and Company (for itself and each of its Subsidiaries)
agrees to notify the Agent, each Co-Agent and each Bank, as applicable, of any
such claim promptly upon learning of any such claim.
ARTICLE X
THE AGENT
Section 1 Appointment. Banque Paribas is hereby appointed as
Agent hereunder and under the other Loan Documents, and each of the Banks and
each of the Co-Agents authorizes the Agent to act as the agent of such Bank and
such Co- Agents, and each of Bank of Boston and Bank of America Illinois are
hereby appointed as Co-Agent hereunder. Upon the execution and delivery by any
L/C Provider of any of the Citicasters L/C Documents, such L/C Provider shall be
deemed to appoint the Agent as its agent and such L/C Provider shall be deemed
to agree to, and accept, the provisions of this Article 10. Each of the
Co-Agents and the Banks hereby expressly consents to, and acknowledges the
appointment of, the Agent to act as the agent for any such L/C Provider. The
Agent agrees to act as such upon the express conditions contained in this
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Article X and the other Loan Documents. Each of the Banks authorizes the Agent
to execute each of the Collateral Documents and the financing statements and
other documents and instruments related thereto on behalf of such Bank (the
terms of which shall be binding on such Bank). Neither the Agent nor any
Co-Agent shall have a fiduciary relationship in respect of any Bank by reason of
this Agreement or any other Loan Document.
Section 2 Powers. The Agent shall have and may exercise such
powers hereunder and under the other Loan Documents as are specifically
delegated to the Agent by the terms hereof or thereof, together with such powers
as are reasonably incidental thereto. The Agent shall not have any implied
duties to the Banks, or any obligation to the Banks to take any action hereunder
or under any other Loan Document except any action specifically provided by this
Agreement or such other Loan Document to be taken by the Agent.
Section 3 General Immunity. Neither the Agent nor any Co-Agent
nor any of their respective directors, officers, agents, attorneys or employees
shall be liable to the Banks or any Bank for any action taken or omitted to be
taken by it or them hereunder or under any other Loan Document or in connection
herewith or therewith except for its or their own gross negligence or willful
misconduct as finally determined in a judgment of a court of competent
jurisdiction.
Section 4 No Responsibility for Loans, Recitals, etc. Neither
the Agent nor any Co-Agent shall be responsible to the Banks for any recitals,
reports, statements, warranties or representations herein or in any other Loan
Document or be bound to ascertain or inquire as to the performance or observance
of any of the terms of this Agreement or any other Loan Document.
Section 5 Action on Instructions of Banks. The Agent shall in
all cases be fully protected in acting, or in refraining from acting, hereunder
and under the other Loan Documents in accordance with written instructions
signed by the Required Banks, or, if applicable, the Banks required pursuant to
Article VIII hereof, and such instructions and any action taken or failure to
act pursuant thereto shall be binding on all of the Banks and on all holders of
the Notes.
Section 6 Employment of Agents and Counsel. The Agent may
execute any of its duties as Agent hereunder or under the other Loan Documents
by or through employees, agents, and attorneys-in-fact and shall not be
answerable to the Banks, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Agent shall be
entitled to advice of counsel concerning all matters pertaining to the agency
created hereby and by the other Loan Documents and its duties hereunder and
thereunder.
Section 7 Reliance on Documents; Counsel. The Agent and each
Co-Agent shall be entitled to rely upon any notice, consent, certificate,
affidavit, letter, telegram, statement, paper or document believed by it to be
genuine and correct and to have been signed or sent by the proper Person or
Persons, and, in respect of legal matters, upon the advice or opinion of counsel
selected by the Agent or such Co-Agent which counsel may be employees of the
Agent or such Co-Agent.
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Section 8 Agent's Reimbursement and Indemnification. Each Bank
agrees to reimburse and indemnify the Agent for its Pro Rata Share (i) of any
amounts not reimbursed by the Company or a Subsidiary for which the Agent or
such Co-Agent is entitled to reimbursement by the Company or a Subsidiary under
the Loan Documents, (ii) of any other expenses incurred by the Agent on behalf
of the Banks, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents and (iii) of any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in any way relating to or
arising out of this Agreement, any other Loan Document or any other document
delivered in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby or thereby by the enforcement of any of the
terms hereof or of any other Loan Document or of any such other documents,
provided that no Bank shall be liable for any of the foregoing to the extent
they arise from the gross negligence or willful misconduct of the Agent as
finally determined in a final judgment of a court of competent jurisdiction.
Section 9 Rights as a Lender. With respect to the Loans made by
it and the other Obligations owing to it, the Agent and each Co-Agent shall have
the same rights and powers hereunder as any Bank and may exercise the same as
though it were not the Agent or a Co-Agent and the term "Bank" or "Banks" shall,
unless the context otherwise indicates, include the Agent and each Co-Agent in
its individual capacity. The Agent and each Co-Agent may accept deposits from,
lend money to, and generally engage in any kind of banking or trust business
with the Company or any Subsidiary as if it were not the Agent or a Co-Agent.
Section 10 Bank Decisions. Each Bank acknowledges that it has,
independently and without reliance upon the Agent, either Co-Agent or any other
Bank and based on the financial statements prepared by the Company and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Bank also acknowledges that it will, independently and without
reliance upon the Agent, either Co- Agent or any other Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
Section 11 Successor Agent. The Agent may resign at any time,
effective upon the appointment and acceptance of a successor agent as described
below, by giving written notice thereof to the Banks and the Company, and the
Agent may be removed at any time with or without cause by written notice
received by the Agent from the Required Banks. Upon any such resignation or
removal, the Required Banks shall have the right to appoint on behalf of the
Banks a successor Agent which successor Agent shall, absent the occurrence and
continuance of a Default or Unmatured Default, be acceptable to the Company. If
no successor Agent shall have been so appointed by the Required Banks and shall
have accepted such appointment within thirty days after the retiring Agent's
giving notice of resignation, then the retiring Agent may appoint on behalf of
the Banks a successor Agent which successor Agent shall, absent the occurrence
and continuance of a Default or Unmatured Default, be acceptable to the Company.
Such successor Agent shall be a commercial bank having capital and retained
earnings of at least $500,000,000.
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Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent and the retiring
Agent shall be discharged from any further duties and obligations hereunder and
under the other Loan Documents. After any retiring Agent's resignation hereunder
as Agent, the provisions of this Article X shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as the Agent hereunder and under the other Loan Documents.
Section 12 Collateral Releases. Provided that no Default or
Unmatured Default shall exist, the Company and the Subsidiaries may from time to
time sell or otherwise dispose of certain of the Collateral as permitted by the
terms of Section 6.13 and, upon the written request of the Company, the Agent
shall release the security interest of the Agent in the Collateral which is to
be sold or otherwise disposed of by the Company or any such Subsidiary in
accordance with the terms of Section 6.13. The Banks hereby empower and
authorize the Agent to execute and deliver to the Company or any Subsidiary any
such agreements, documents or instruments as shall be necessary or appropriate
to effect any such release and any other releases of Collateral which shall have
been approved by the Banks in writing, in accordance with Section 8.2.
Section 13 Duties and Rights of Co-Agents. The Co-Agents shall
have no duties under this Agreement or the other Loan Documents, and shall have
no rights, in their capacities as Co-Agents, hereunder except as expressly set
forth herein or therein.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
Section 1 Setoff. In addition to, and without limitation of,
any rights of the Banks under applicable law, if the Company becomes insolvent,
however evidenced, or any Default shall occur and be continuing, any
indebtedness from any Bank to the Company (including all account balances,
whether provisional or final and whether or not collected or available) may be
offset and applied toward the payment of the Obligations owing to such Bank,
whether or not the Obligations, or any part thereof, shall then be due.
Section 2 Ratable Payments. If any Bank, whether by setoff or
otherwise, has payment made to it upon its Loans in a greater proportion than
that received by any other Bank, such Bank agrees, promptly upon demand, to
purchase a participation in the Loans held by the other Banks so that after such
purchase each Bank will hold its ratable proportion of Loans. If any Bank,
whether in connection with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for its Obligations or such
amounts which may be subject to setoff, such Bank agrees, promptly upon demand,
to take such action as shall be necessary such that all Banks share in the
benefits of such collateral ratably in proportion to their Loans. In case any
such payment is disturbed by legal process, or otherwise, appropriate further
adjustments shall be made.
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ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
Section 1 Successors and Assigns. The terms and provisions of
the Loan Documents shall be binding upon and inure to the benefit of the Company
and the Banks and their respective successors and assigns, except that the
Company and its Subsidiaries shall not have the right to assign its rights or
delegate its duties or obligations under the Loan Documents, and any assignment
by any Bank must be made in compliance with Section 12.3. The Agent may treat
the payee of any Note as the owner thereof for all purposes hereof unless and
until a written notice of the assignment or transfer thereof shall have been
filed with the Agent, and any assignee or transferee of a Note agrees by
acceptance thereof to be bound by all the terms and provisions of the Loan
Documents. Any request, authority or consent of any Person, who at the time of
making such request or giving such authority or consent is the holder of any
Note, shall be conclusive and binding on any subsequent holder, transferee or
assignee of such Note or of any Note or Notes issued in exchange therefor.
Section 2 Participations.
12.2.1. Permitted Participants; Effect. Any Bank may, in
the ordinary course of its business and in accordance with applicable law, at
any time sell to one or more banks or other entities ("Participants")
participating interests in any Loan made by such Bank or any other interest of
such Bank under the Loan Documents, provided that any such Participant shall
agree in writing to be bound by Section 9.15 hereof. In the event of any such
sale by a Bank of participating interests to a Participant, such Bank's
obligations under the Loan Documents shall remain unchanged, such Bank shall
remain solely responsible to the other parties hereto for the performance of
such obligations, such Bank shall remain the holder of any such Note for all
purposes under the Loan Documents, and the Company and the Agent shall continue
to deal solely and directly with such Bank in connection with such Bank's rights
and obligations under the Loan Documents.
12.2.2. Voting Rights. Each Bank shall retain the sole
right to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other than any
amendment, modification or waiver with respect to any Loan or Obligation in
which such Participant has an interest which postpones the date on which the
outstanding principal amount of the Loans are to be paid by the Company in full
beyond December 31, 2003, forgives principal or interest or reduces the interest
rate payable with respect to any such Loan or Obligation, releases any guarantor
of any such Loan or Obligation or releases all or substantially all of the
Collateral securing any such Loan or Obligation.
12.2.3. Benefit of Setoff and Indemnities. The Company
agrees that each Participant shall be deemed to have the right of setoff
provided in Section 11.1 in respect of its participating interest in amounts
owing under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Bank under the Loan
Documents, provided that each Bank shall retain the right of setoff provided in
Section 11.1 with respect to the amount of participating interests sold to each
Participant, except to the extent such Participant has exercised its
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right of setoff. The Banks agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in Section 11.1, agrees
to share with each Bank, any amount received pursuant to the exercise of its
right of setoff, in accordance with Section 11.2 as if each Participant was a
Bank. The Company also agrees that each Participant shall be entitled to the
benefits of Sections 3.1 and 3.2 with respect to its participation; provided,
that no Participant shall be entitled to receive any greater amount pursuant to
such Sections that the transferor Bank would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Bank
to such Participant had no such transfer occurred.
Section 3 Assignments.
12.3.1. Permitted Assignments. Any Bank may, in the
ordinary course of its business and in accordance with applicable law, at any
time, assign to one or more banks or other entities ("Purchasers") all or any
part of its rights and obligations under the Loan Documents; provided that any
partial assignment of any Bank's rights and obligation hereunder shall be in a
minimum principal amount of $5,000,000 of such Bank's Loans and/or Commitments.
Such assignment (other than an assignment to the Federal Reserve Bank) shall be
substantially in the form of Exhibit M hereto. The consent of the Agent and,
unless a Default has occurred and is continuing, the consent of the Company
(such consent of the Agent and the Company not to be unreasonably withheld),
shall be required prior to an assignment becoming effective with respect to a
Purchaser which is not a Bank, an Affiliate thereof or a Federal Reserve Bank.
Such consents shall be substantially in the form attached as Schedule I to
Exhibit M (a "Notice of Assignment") hereto and shall not be unreasonably
withheld or delayed.
12.3.2. Effect; Effective Date. Upon delivery to the
Agent of a Notice of Assignment with a copy to the Company, together with any
consents required by Section 12.3.1, and payment of a $2,500 fee to the Agent
for processing such assignment, such assignment shall become effective on the
effective date specified in such Notice of Assignment. On and after the
effective date of such assignment, such Purchaser shall for all purposes be a
Bank party to this Agreement and the other Loan Documents and shall have all the
rights and obligations of a Bank under the Loan Documents, to the same extent as
if it were an original party hereto, and no further consent or action by the
Company, the Banks or the Agent shall be required to release the transferor Bank
with respect to the percentage of the Obligations assigned to such Purchaser.
Upon the consummation of any assignment to a Purchaser pursuant to this Section
12.3.2, the transferor Bank, the Agent and the Company shall make appropriate
arrangements so that replacement Notes are issued to such transferor Bank and
new Notes or, as appropriate, replacement Notes, are issued to such Purchaser,
in each case in principal amounts reflecting their Loans, as adjusted pursuant
to such assignment.
12.3.3. Dissemination of Information. The Company
authorizes each Bank to disclose to any Participant, Purchaser or any other
Person acquiring an interest in the Obligations, any portion thereof or the Loan
Documents by operation of law (each "Transferee") and, with the consent of the
Company (which consent shall not be unreasonably withheld), any prospective
Transferee, any and all information in such Bank's possession concerning the
creditworthiness of the Company, provided that each Transferee and prospective
Transferee agrees to be bound by Section 9.15 of this Agreement.
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12.3.4. Tax Treatment. If any interest in any Loan
Document is transferred to any Transferee (other than a then-existing Bank)
which is organized under the laws of any jurisdiction other than the United
States or any State thereof, the transferor Bank shall cause such Transferee,
concurrently with the effectiveness of such transfer, (i) to represent to the
transferor Bank (for the benefit of the transferor Bank, the Agent and the
Company) that under applicable law and treaties no taxes will be required to be
withheld by the Agent, the Company or the transferor Bank with respect to any
payments to be made to such Transferee in respect of the Loans, (ii) to furnish
to the transferor Bank, the Agent and the Company either U.S. Internal Revenue
Service Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein such
Transferee claims entitlement to complete exemption from U.S. federal
withholding tax on all interest payments hereunder) and an Internal Revenue
Service Form W-8 or W-9 or successor appropriate forms (wherein such Transferee
claims exemption from United States back-up withholding tax) and (iii) to agree
(for the benefit of the transferor Bank, the Agent and the Company) to provide
the transferor Bank, the Agent and the Company a new Form 4224 or Form 1001 or
Form W-8 or W-9 upon the obsolescence of any previously delivered form and
comparable statements in accordance with applicable U.S. laws and regulations
and amendments duly executed and completed by such Transferee, and to comply
from time to time with all applicable U.S. laws and regulations with regard to
such withholding and back-up withholding tax exemptions.
ARTICLE XIII
NOTICES
Section 1 Giving Notice. Any notice required or permitted to be
given under this Agreement may be, and shall be deemed, given, if mailed, three
days after the date when deposited in the United States mail, postage prepaid,
or if by telegraph, when delivered to the appropriate office for transmission,
charges prepaid, or if by personal delivery or by facsimile, when received,
addressed to the Company (with copies to Xxxxx X. Xxxxxxxxx, Xxxxxxxxx &
Xxxxxxxxxxx, 0 Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000,
provided, however, that the failure to provide any such copies shall not affect
the validity or sufficiency of any such notice), the Banks or the Agent at the
addresses indicated below their signatures to this Agreement (with, in the case
of any notice to the Agent, a copy thereof to Banque Paribas, Media Group,
Equitable Tower, 000 0xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx (fax:
000-000-0000)).
Section 2 Change of Address. The Company, the Agent and any
Bank may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
ARTICLE XIV
WAIVER OF JURY TRIAL
THE COMPANY, THE AGENT AND EACH BANK HEREBY WAIVE TRIAL BY JURY
IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED
THEREUNDER.
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IN WITNESS WHEREOF, the Company, the Banks and the Agent have
executed this Agreement as of the date first above written.
JACOR COMMUNICATIONS, INC.
By:__________________________________
Title:_______________________________
By:__________________________________
Title:_______________________________
1300 PNC Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Attention: R. Xxxxxxxxxxx Xxxxx
BANQUE PARIBAS,
Individually and as Agent
By:__________________________________
Title:_______________________________
By:__________________________________
Title:_______________________________
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
Xxxx Xxxxxx
Banque Paribas, Media Group
Equitable Tower
000 0xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxx
Xxxx Xxxxxxxxx
THE FIRST NATIONAL BANK OF BOSTON,
Individually and as Co-Agent
By:__________________________________
Title:_______________________________
000 Xxxxxxx Xxxxxx
Mail Stop 01-08-08
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxx Xxxxxxx
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BANK OF AMERICA ILLINOIS,
Individually and as Co-Agent
By:__________________________________
Title:_______________________________
000 Xxxxx XxXxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxx Xxxx
BANK OF MONTREAL
By:__________________________________
Title:_______________________________
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxx
THE BANK OF NEW YORK
By:__________________________________
Title:_______________________________
0 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxx
THE BANK OF NOVA SCOTIA
By:__________________________________
Title:_______________________________
0 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
CIBC, INC.
By:__________________________________
Title:_______________________________
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxx
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FIRST BANK
By:__________________________________
Title:_______________________________
000 Xxxxxx Xxxxxx Xxxxx
Mail Code: MPFP2805
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxx
SOCIETY NATIONAL BANK
By:__________________________________
Title:_______________________________
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxx
UNION BANK
By:__________________________________
Title:_______________________________
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx
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