Exhibit 4.1
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CREDIT FACILITY AGREEMENT
BY AND AMONG
NBG RADIO NETWORK, INC.
AND
EACH OF ITS DIRECT AND INDIRECT SUBSIDIARIES
AND
MCG FINANCE CORPORATION
(AS AGENT FOR ITSELF AND ANY OTHER LENDER)
Executed and Effective as of June 29, 2001
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TABLE OF CONTENTS
Page
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ARTICLE 1: THE CREDIT FACILITIES........................................................1
1.1. Term Loan Facility............................................................1
1.1.1. Establishment of Credit Facility.....................................1
1.1.2. Facility Maturity....................................................1
1.1.3. Use of Proceeds......................................................1
1.1.4. Term Loan Notes......................................................2
1.1.5. Interest.............................................................2
1.1.6. Repayment and Prepayment.............................................6
1.2. Intentionally Blank...........................................................8
1.3. Determination of Commitment Amounts...........................................8
1.3.1. Initial Commitments..................................................8
1.3.2. Available Credit Portion.............................................8
1.3.3. Voluntary Reduction of Commitment....................................9
1.4. Advances......................................................................9
1.4.1. Requesting Advances..................................................9
1.4.2. Funding Advances.....................................................9
1.4.3. Indemnification for Revocation or Failure to Satisfy Conditions......9
1.4.4. Obligation to Advance...............................................10
1.5. Payments in General..........................................................10
1.5.1. Manner and Place of Payments........................................10
1.5.2. Special Payment Timing Issues.......................................10
1.5.3. Application of Payments.............................................10
1.5.4. LIBO Rate Payments Not at End of Interest Period....................10
1.5.5. Capital Adequacy, Taxes and Other Adjustments.......................11
1.5.6. Payment of Expenses, Indemnities and Protective Advances............11
1.5.7. Payments upon Termination...........................................11
1.5.8. Late Payments.......................................................11
1.5.9. Default Interest....................................................12
1.5.10. Usury Savings Provision............................................12
1.6. Release of Security..........................................................12
1.7. Fees and Other Compensation..................................................12
1.7.1. Origination Fee.....................................................12
1.7.2. Increased Term Loan Facility Origination Fee........................12
1.7.3. Issuance of Option and Warrants.....................................13
1.7.4. Other Fees..........................................................13
ARTICLE 2: CONDITIONS PRECEDENT........................................................13
2.1. Closing Conditions...........................................................13
2.1.1. Compliance..........................................................13
2.1.2. Documents...........................................................14
2.1.3. Acquisition of Xxxxxx Entertainment Corporation by Borrowers........17
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2.2. Additional Conditions Precedent in Connection with Increased Term Loan
Commitments................................................................17
2.2.1. Commitment to Lend..................................................17
2.2.2. Advance Request.....................................................17
2.2.3. Cash Flow Leverage..................................................17
2.2.4. Other Documents.....................................................17
2.2.5. Subsequent Acquisitions.............................................17
2.2.6. Compliance..........................................................18
2.2.7. Lien Searches.......................................................18
2.2.8. Amended Documents...................................................18
ARTICLE 3: REPRESENTATIONS AND WARRANTIES..............................................18
3.1. Organization and Good Standing...............................................18
3.2. Power and Authority..........................................................19
3.3. Validity and Legal Effect....................................................19
3.4. No Violation of Laws or Agreements...........................................19
3.5. Title to Assets; Existing Encumbrances; Identification of Intellectual and
Real Property..............................................................19
3.5.2. Intellectual Property...............................................19
3.5.3. Real Property.......................................................19
3.6. Capital Structure and Equity Ownership.......................................20
3.7. Subsidiaries, Affiliates and Investments.....................................20
3.8. Material Contracts...........................................................20
3.9. Licenses and Authorizations..................................................21
3.10. Taxes and Assessments.......................................................21
3.11. Litigation and Legal Proceedings............................................21
3.12. Accuracy of Financial Information...........................................21
3.13. Accuracy of Other Information...............................................21
3.14. Compliance with Laws Generally..............................................22
3.15. ERISA Compliance............................................................22
3.16. Environmental Compliance....................................................22
3.17. Margin Rule Compliance......................................................22
3.18. Fees and Commissions........................................................22
3.19. Solvency....................................................................22
ARTICLE 4: AFFIRMATIVE COVENANTS.......................................................22
4.1. Financial and Operating Covenants and Ratios.................................22
4.1.1. Interest Coverage Ratio.............................................23
4.1.2. Total Charge Coverage Ratio.........................................23
4.1.3. Cash Flow Leverage Ratio............................................23
4.1.4. Maximum Programming Obligations and Affiliate Station Expenses......23
4.1.5. Minimum Adjusted OCF................................................23
4.2. Periodic Financial Statements and Compliance Certificates....................24
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4.2.1. Monthly Financial Statements......................................24
4.2.2. Quarterly Financial Statements......................................24
4.2.3. Annual Financial Statements.........................................24
4.3. Other Financial and Specialized Reports......................................25
4.3.1. Financial Forecasts; Operating Budgets..............................25
4.3.2. Additional Material Contracts, Licenses and Authorizations..........25
4.3.3. Tax Returns.........................................................25
4.3.4. SEC Filings and Press Releases......................................25
4.4. Fiscal Year..................................................................25
4.5. Books and Records; Maintenance of Properties.................................25
4.6. Existence and Good Standing..................................................26
4.7. Deposit Accounts.............................................................26
4.8. Insurance; Disaster Contingency..............................................26
4.8.1. General Insurance Provisions........................................26
4.8.2. Disaster Recovery and Contingency Program...........................26
4.8.3. Key-Person Life Insurance...........................................27
4.9. Loan Purpose.................................................................27
4.10. Taxes.......................................................................27
4.11. Management Changes..........................................................27
4.12. Litigation and Administrative Proceedings...................................27
4.13. Monitoring Compliance; Occurrence of Certain Events.........................27
4.14. Compliance with Laws........................................................28
4.15. Further Actions.............................................................28
4.15.1. Additional Collateral..............................................28
4.15.2. Further Assurances.................................................28
4.15.3. Estoppel Certificates..............................................28
4.15.4. Waivers and Consents...............................................29
4.15.5. Access and Audits..................................................29
4.15.6. Attendance at Board of Directors Meetings..........................29
4.16. Costs and Expenses..........................................................29
4.17. Other Information...........................................................30
4.18. Sale of Subsidiaries........................................................30
4.19. Limitation on Activities, Assets and Liabilities of NBG.....................30
4.20.1. Holding Company Structure.........................................30
4.20.2. Fiscal Year of Xxxxx Xxxxxx Entertainment Corporation.............31
4.20.3. Insurance - Xxxxx Xxxxxx Entertainment Corporation................31
4.20.4. Formation of Compensation Committee...............................35
4.20.5 Substitution of Assignment of Life Insurance Policies..............35
4.20.6 Opinions of California and Nevada Counsel..........................36
4.20.7 Stock Certificates.................................................36.
ARTICLE 5: NEGATIVE COVENANTS..........................................................32
5.1. Capital Expenditures/Affiliate Station Expenses..............................32
5.2. Additional Indebtedness......................................................32
5.3. Guaranties...................................................................33
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5.4. Loans........................................................................33
5.5. Liens and Encumbrances; Negative Pledge......................................33
5.6. Transfer of Assets...........................................................35
5.7. Acquisitions and Investments.................................................35
5.8. New Ventures; Mergers........................................................36
5.9. Transactions with Affiliates.................................................36
5.10. Distributions or Dividends..................................................37
5.11. Payment of Subordinated Indebtedness........................................37
5.12. Payment of Management Fees and Other Compensation...........................37
5.13. Issuance of Additional Equity...............................................37
5.14. Removal of Assets...........................................................37
5.15. Modifications to Organic Documents..........................................38
5.16. Terms of and Modifications to Material Relationships........................38
5.17. Margin Stock Restrictions; Other Federal Statutes...........................38
5.18. Radio Station Obligations...................................................38
ARTICLE 6: ADDITIONAL COLLATERAL AND RIGHT OF SET OFF..................................39
6.1. Additional Collateral........................................................39
6.2. Right of Set-Off.............................................................39
6.3. Additional Rights............................................................39
ARTICLE 7: DEFAULT AND REMEDIES........................................................39
7.1. Events of Default............................................................39
7.1.1. Payment Obligations.................................................39
7.1.2. Representations and Warranties......................................39
7.1.3. Financial Covenants.................................................40
7.1.4. Other Covenants in Loan Documents...................................40
7.1.5. Default Under Other Agreements with Administrative Agent or Lenders.40
7.1.6. Default Under Material Agreements with Other Parties................40
7.1.7. Security Interest...................................................40
7.1.8. Change of Control...................................................40
7.1.9. Government Action...................................................41
7.1.10. Insolvency.........................................................41
7.1.11. Additional Liabilities.............................................41
7.1.12. Material Adverse Change............................................41
7.2. Remedies.....................................................................41
7.2.1. Acceleration, Termination and Pursuit of Collateral.................41
7.2.2. Other Remedies......................................................42
ARTICLE 8: ADMINISTRATIVE AGENT AND RELATIONSHIP AMONG LENDERS.........................42
8.1. Appointment, Authorization and Grant of Authority............................42
8.2. Acceptance of Appointment....................................................43
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8.3. Administrative Agent's Relationship with Borrowers...........................43
8.4. Non-Reliance on Administrative Agent and Other Lenders.......................43
8.5. Reliance by Administrative Agent.............................................43
8.6. Delegation of Duties; Additional Reliance by Administrative Agent............44
8.7. Acting on Instructions of Lenders............................................44
8.8. Actions Upon Occurrence of Default or Event of Default.......................44
8.9. Administrative Agent's Rights as Lender in Individual Capacity...............45
8.10. Advances By Administrative Agent............................................45
8.11. Payments to Lenders.........................................................46
8.12. Pro-Rata Sharing of Setoff Proceeds.........................................46
8.13. Limitation on Liability of Administrative Agent.............................46
8.14. Indemnification.............................................................46
8.15. Resignation; Successor Administrative Agent.................................47
ARTICLE 9: DEFINITIONS AND RULES OF CONSTRUCTION.......................................47
9.1. Definitions..................................................................47
9.1.1. "Account"...........................................................47
9.1.2. "Acquisition".......................................................47
9.1.3. "Adjusted LIBO Rate"................................................48
9.1.4. "Administrative Agent"..............................................48
9.1.5. "Advance"...........................................................48
9.1.6. "Advance Request"...................................................48
9.1.7. "Affiliate".........................................................48
9.1.8. "Affiliate Station Expenses"........................................48
9.1.9. "Agreement".........................................................49
9.1.10. "Annual Meeting"...................................................49
9.1.11. "Authorization"....................................................49
9.1.12. "Authorized Officer"...............................................49
9.1.13. "Available Credit Portion".........................................49
9.1.14. "Borrower".........................................................49
9.1.15. "Business Day".....................................................49
9.1.16. "Capital Expenditures".............................................50
9.1.17. "Capital Leases"...................................................50
9.1.18. "Cash Flow Leverage Ratio".........................................50
9.1.19. "Closing Date".....................................................50
9.1.20. "Code".............................................................50
9.1.21. "Collateral".......................................................50
9.1.22. "Collateral Security Documents"....................................50
9.1.23. "Commitment".......................................................50
9.1.24. "Commitment Percentage"............................................50
9.1.25. "Cumulative Affiliate Station Expenses"............................50
9.1.26. "Cumulative Programming Obligations"...............................50
9.1.27. "Current Interest".................................................50
9.1.28. "Current Interest Rate"............................................51
9.1.29. "Current Interest Rate Margin".....................................51
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9.1.30. "Default"..........................................................51
9.1.31. "Deferred Interest"................................................51
9.1.32. "Deferred Interest Rate Margin"....................................51
9.1.33. "Dollar" or "$"....................................................51
9.1.34. "EBITDA"...........................................................51
9.1.35. "Environmental Control Statutes"...................................51
9.1.36. "EPA"..............................................................52
9.1.37. "ERISA"............................................................52
9.1.38. "Event of Default".................................................52
9.1.39. "Excess Cash Flow".................................................52
9.1.40. "Facility".........................................................52
9.1.41. "Fixed Charges"....................................................52
9.1.42. "FRB"..............................................................53
9.1.43. "Funded Debt"......................................................53
9.1.44. "GAAP".............................................................53
9.1.45. "Hazardous Materials"..............................................54
9.1.46. "Interest Coverage Ratio"..........................................54
9.1.47. "Interest Expense"................................................54
9.1.48. "Interest Period"..................................................54
9.1.49. "Lender"...........................................................54
9.1.50. "Leverage Ratio"...................................................54
9.1.51. "LIBO Rate"........................................................54
9.1.52. "License"..........................................................55
9.1.53. "Lien".............................................................55
9.1.54. "Loan".............................................................55
9.1.55. "Loan Documents"...................................................55
9.1.56. "Local Authorities"................................................55
9.1.57. "Margin Regulation"................................................55
9.1.58. "Margin Stock".....................................................55
9.1.59. "Material Adverse Change"..........................................55
9.1.60. "Material Adverse Effect"..........................................55
9.1.61. "Material Contract"................................................55
9.1.62. "MCG"..............................................................56
9.1.63. "Notes"............................................................56
9.1.64. "Obligations"......................................................56
9.1.65. "Obligor"..........................................................56
9.1.66. "OCF"..............................................................56
9.1.67. "Official Body"....................................................57
9.1.68. "Operating Agreement"..............................................57
9.1.69. "Option" has the meaning set forth in Section 1.7..................57
9.1.70. "Option And Warrant Agreement"....................................57
9.1.71. "Organic Document".................................................57
9.1.72. "Permitted Guaranties".............................................57
9.1.73. "Permitted Indebtedness"...........................................57
9.1.74. "Permitted Investments"............................................57
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9.1.75. "Permitted Liens"..................................................57
9.1.76. "Permitted Loans"..................................................57
9.1.77. "Permitted Transfers"..............................................57
9.1.78. "Person"...........................................................57
9.1.79. "Plan".............................................................57
9.1.80. "Pledge and Security Agreements"...................................57
9.1.81. "Portion"..........................................................58
9.1.82. "Prime Rate".......................................................58
9.1.83. "Programming Obligation"...........................................58
9.1.84. "Programming Contract".............................................58
9.1.85. "Pro Rata".........................................................58
9.1.86. "Rate Index".......................................................58
9.1.87. "Rate Margin"......................................................58
9.1.88. "Reorganization Proposal"..........................................58
9.1.89. "Reserve Percentage"...............................................58
9.1.90. "Revenue"..........................................................58
9.1.91. "Required Lender"..................................................59
9.1.92. "Reserve Percentage"...............................................59
9.1.93. "SEC"..............................................................59
9.1.94. "Securities Acts"..................................................59
9.1.95 "Security Agreements"...............................................59
9.1.96 "Settlement Date"...................................................59
9.1.97 "Subordinated Indebtedness".........................................59
9.1.98. "Subsidiary".......................................................59
9.1.99. "Term Loan Commitment".............................................59
9.1.100. "Term Loan Commitment Percentage".................................59
9.1.101 "Term Loan Facility"...............................................59
9.1.102. "Term Loan Maturity Date".........................................60
9.1.103. "Term Loan Note"..................................................60
9.1.104. "Total Charges"...................................................60
9.1.105. "Total Charge Coverage Ratio".....................................60
9.1.106. "UCC".............................................................60
9.1.107. "Upfront Revenues"................................................60
9.1.108. "Warrants"........................................................60
9.1.109. "Working Capital"................................................60
9.2. Rus of Interpretation and Construction.......................................61
9.2.1. Plural; Gender......................................................61
9.2.2. Section and Schedule References.....................................61
9.2.3. Titles and Headings.................................................61
9.2.4. "Including" and "Among Other" References............................61
9.2.5. Time of Day References..............................................61
9.2.6. "Knowledge" of a Person.............................................61
9.2.7. Successors and Assigns..............................................61
9.2.8. Modifications to Documents..........................................62
9.2.9. References to Laws and Regulations..................................62
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9.2.10. Financial and Accounting Terms.....................................62
9.2.11. Conflicts Among Loan Documents.....................................62
9.2.12. Independence of Covenants and Defaults.............................62
9.2.13. Administrative Agent...............................................62
ARTICLE 10: MISCELLANEOUS..............................................................62
10.1. Indemnification, Reliance and Assumption of Risk............................62
10.2. Assignments and Participations..............................................63
10.3. No Waiver; Delay............................................................64
10.4. Modifications and Amendments................................................64
10.5. Disclosure of Information to Third Parties..................................65
10.5.1. By Borrowers......................................................65
10.5.2. By Administrative Agent and each Lender...........................65
10.6. Binding Effect and Governing Law............................................66
10.7. Notices.....................................................................66
10.8. Relationship with Prior Agreements..........................................68
10.9. Severability................................................................68
10.10. Termination and Survival...................................................68
10.11. Reinstatement..............................................................69
10.12. Counterparts...............................................................69
10.13. Waiver of Suretyship Defenses..............................................69
10.14. Waiver of Liability........................................................69
10.15. Forum Selection; Consent to Jurisdiction...................................70
10.16. Waiver of Jury Trial.......................................................70
SCHEDULES:
Schedule A List of Borrowers
Schedule 1.1.3 Indebtedness Being Satisfied with Proceeds
Schedule 3.1 Good Standing / Foreign Qualification Jurisdictions
Schedule 3.2 Missing Consents
Schedule 3.5A Intellectual Property
Schedule 3.5B Real Property Interests
Schedule 3.5C Operating Names / Trade Names
Schedule 3.6 Capital Structure / Equity Ownership
Schedule 3.7 Subsidiaries, Affiliates & Investments
Schedule 3.8 Material Contracts
Schedule 3.9 Licenses and Authorizations
Schedule 3.10 Taxes and Assessments
Schedule 3.11 Material Litigation
Schedule 3.18 Fees and Commissions
Schedule 4.7 Existing Deposit Accounts
Schedule 5.2 Permitted Additional Indebtedness
Schedule 5.3 Permitted Additional Guaranties
Schedule 5.4 Permitted Additional Loans
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Schedule 5.5 Permitted Additional Liens
Schedule 5.7 Permitted Additional Investments
EXHIBITS:
Exhibit 1.4.1 Form of Advance Request
Exhibit 4.2 Form of Periodic Compliance Certificate
Exhibit 10.2 Form of Assignment and Assumption Agreement
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CREDIT FACILITY AGREEMENT
THIS CREDIT FACILITY AGREEMENT (as defined in Article 9, along with all
other defined terms, this "Agreement") is made and effective as of June 29,
2001, by and among NBG RADIO NETWORK, INC. ("NBG") and each direct and indirect
Subsidiary of NBG (which either are listed on Schedule A with the consent of
Lenders or are hereafter added as borrowing Subsidiaries pursuant to the terms
hereof) (as more fully defined in Article 9, NBG and each such Subsidiary are
referred to individually as a "Borrower" and collectively as the "Borrowers"),
and each financial institution that from time to time is a "Lender" hereunder
(as more fully defined in Article 9, each, a "Lender"; collectively, the
"Lenders"), and MCG FINANCE CORPORATION (as more fully defined in Article 9,
"MCG" or "Administrative Agent").
R E C I T A L S
- - - - - - - -
WHEREAS, Borrowers desire and have applied to Lenders and
Administrative Agent for a credit facility consisting of a term loan pursuant to
which $6,200,000 can be borrowed from time to time on a senior secured basis
(but which amount may be increased by up to $10 million upon request of
Borrowers, at the sole and absolute discretion of Lenders); and
WHEREAS, Lenders and Administrative Agent are each willing to
accommodate the request for credit upon and subject to the terms, conditions and
provisions of the Loan Documents;
NOW, THEREFORE, for good and valuable consideration (receipt and
sufficiency of which are hereby acknowledged), and intending to be legally bound
hereby, Borrowers (jointly and severally) and each Lender and Administrative
Agent hereby agree as follows:
ARTICLE 1: THE CREDIT FACILITIES
1.1. Term Loan Facility.
1.1.1. Establishment of Credit Facility. Subject to the terms
and conditions of and in reliance upon the representations and warranties in the
Loan Documents, each Lender (severally and on a pro rata basis with the other
Lenders) will lend funds to Borrowers on the Closing Date in an aggregate
principal amount advanced not to exceed the Term Loan Commitment (as determined
in accordance with Section 1.3).
1.1.2. Facility Maturity. The Term Loan Facility will mature
on May 31, 2006 (as may be extended from time to time in the sole and absolute
discretion of Lenders, "Term Loan Maturity Date").
1.1.3. Use of Proceeds. The funds advanced under this Term
Loan Facility may be used exclusively as follows:
a. Up to $5,400,000, to acquire the outstanding
shares of capital stock of Xxxxx Xxxxxx Entertainment Corporation (the
"Acquisition"), and
b. Up to $500,000 to satisfy and refinance the
indebtedness owed Borrowers to the various Persons set forth on Schedule 1.1.3
(which Schedule shall identify each payee, the corresponding amounts being
satisfied and the purpose for which such indebtedness being satisfied was
initially incurred); and
c. Up to $100,000 to fund the Xxxx X. Xxxxxx, III
loan; and
d. Up to $15,000 to fund the Xxxxxx X. Xxxxxx loan;
and
e. Up to $45,000.00 to fund the Xxxx X. Xxxxxxxxx
loan; and
f. Up to $90,000 to fund the Xxxx X. Xxxxxx loan; and
g. The balance of the Term Loan Commitment (if any)
to (i) pay for fees and expenses associated with consummating and documenting
the transactions contemplated by this Agreement, and (ii) to fund the purchase
of services (including, as applicable, salaries, promotional expenses,
advertising expenses and professional fees, and (iii) to fund the acquisition of
property, plant, equipment and permissible Capital Expenditures, and (iv) for
such other items as specifically authorized hereunder or in writing by Required
Lenders (in their sole and absolute discretion).
1.1.4. Term Loan Notes. The indebtedness under the Term Loan
Facility and the corresponding (joint and several) obligation of Borrowers to
repay each Lender with interest in accordance with the terms hereof will be
evidenced by one or more Term Loan Notes (as amended, restated, replaced,
supplemented, extended or renewed from time to time, each, a "Term Loan Note";
collectively, the "Term Loan Notes") payable to the order of each Lender. The
Term Loan Notes will be due and payable in full on the Term Loan Maturity Date.
The aggregate stated principal amount of the Term Loan Notes will be the Term
Loan Commitment established as of the Closing Date pursuant to Section 1.3;
provided, however, that the maximum liability under such Term Loan Notes will be
limited at all times to the actual amount of indebtedness (including principal,
interest, fees, expenses and indemnities) then outstanding under the Term Loan
Facility. Each Lender is authorized to note or endorse the date and amount of
each Advance and each payment under the Term Loan Facility on a schedule annexed
to and constituting a part of the Term Loan Notes. Such notations or
endorsements, if made, will constitute prima facie evidence of the information
noted or endorsed on such schedule absent manifest error, but the absence of any
such notation or endorsement will not limit or otherwise affect the obligations
or liabilities of Borrowers thereunder and hereunder.
1.1.5. Interest. Interest under the Term Loan Facility (and
with any respect to any other amounts advanced to or on behalf of Borrowers or
otherwise outstanding under the Loan Documents) will be determined and imposed
in accordance with the following provisions (and, as applicable, Sections 1.5
and 1.7):
2
1.1.5.1. Establishment of Portions. For purposes of
determining interest, Borrowers may designate and subdivide the outstanding
balance under the Term Loan Facility (including any other amounts advanced to or
on behalf of Borrowers under the Loan Documents) into a maximum of two (2)
Portions at an Adjusted LIBO Rate and one (1) Portion at the Prime Rate. No
Portion accruing interest based upon an Adjusted LIBO Rate may be less than
$100,000, and all Portions under the Term Loan Facility collectively must total
the outstanding balance under the Term Loan Facility.
1.1.5.2. Interest Rate Determination. The outstanding balance
hereunder (including the accrued Deferred Interest) will bear interest (computed
daily until paid in immediately available funds, whether prior to or after the
Term Loan Maturity Date) at the applicable Rate Index (as determined in
accordance with Section 1.1.5.3) plus the applicable Rate Margin (as determined
in accordance with Section 1.1.5.4). If the Prime Rate is the applicable Rate
Index for a Portion, then the interest rate on such Portion will change when and
as the Prime Rate or Rate Margin changes; and if an Adjusted LIBO Rate is the
applicable Rate Index for a Portion, then the interest rate on such Portion will
be established on the first day of each Interest Period for such Portion and
will not change during such Interest Period (except as otherwise permitted under
Section 1.1.4). Notwithstanding the foregoing, the applicable interest rate for
the outstanding balance under the Term Loan Facility from the Closing Date until
the first date on which the Rate Index or Rate Margin may be changed will be
14.71% per annum (i.e., the Adjusted LIBO Rate applicable for a 3-month period
as of the Closing Date plus a Current Interest Rate Margin of 8% per annum plus
a Deferred Interest Rate Margin of 3% per annum).
1.1.5.3. Selection of Rate Index. The applicable Rate Index
for each Portion will be either the Prime Rate or an Adjusted LIBO Rate. The
applicable Rate Index for each Portion may be changed by Borrowers as of the
first calendar day after the end of the applicable Interest Period for such
Portion. At least 3 Business Days (but not more than 10 Business Days) before
any day on which the Rate Index may be changed, Borrowers must notify
Administrative Agent in writing of (a) the dollar amount of each Portion (if
more than one exists) and (b) the selected Rate Index for each Portion during
the subsequent rate period. If Administrative Agent does not timely receive such
written notification as to any Portion, then the then-current Rate Index will be
the applicable Rate Index for the outstanding balance of such unspecified
Portion during the subsequent Interest Period. With respect to the proceeds of
each Advance under the Term Loan Facility, unless Borrowers request a particular
Rate Index at the time of such Advance, then Administrative Agent may select the
applicable Rate Index from the corresponding Settlement Date for such Advance
until the next date on which the Rate Index may be changed hereunder.
1.1.5.4. Applicable Rate Margins. The Current Interest Rate
Margin and the Deferred Interest Rate Margin applicable to the Term Loan
Facility will be established as of the Closing Date and as of the first calendar
day of each Interest Period after the date that Administrative Agent receives or
should have received the most recent periodic financial statements of Borrowers
delivered in accordance with Section 4.2. The Current Interest Rate Margin and
the Deferred Interest Rate Margin will be based upon the Leverage Ratio of (a)
Funded Debt as of the date of establishment of such Rate Margins to (b) OCF as
of the last day of the fiscal quarter reflected on the most recent quarterly
financial statements delivered to
3
Administrative Agent in accordance with Section 4.2, and will be determined
according to the following chart:
Prime Rate Adjusted LIBO
Current Interest Current Interest Deferred Interest
Leverage Ratio Rate Margin Rate Margin Rate Margin
-------------- ----------------- ---------------- --------------
<2.0 4.00% 6.00% 3.00%
>2.0 but <3.0 5.00% 7.00% 3.00%
-
>3.0 6.00% 8.00% 3.00%
-
If Administrative Agent does not timely receive quarterly financial statements
prepared and delivered in accordance with Section 4.2, then Administrative Agent
(in the sole and absolute discretion of Required Lenders) may deem the
applicable Rate Margins for each Portion to be the highest Rate Margins for the
applicable Rate Index reflected in the chart above, either prospectively or
retroactive to the first calendar day of the then-current fiscal quarter. Upon
the funding of any Advance after the Closing Date in excess of $100,000, then
Administrative Agent (in the sole and absolute discretion of Required Lenders)
may elect to prospectively adjust the Rate Margin applicable to each portion to
reflect the additional amount of Funded Debt thereby outstanding. Even though
the pricing schedule above may contemplate Rate Margins for Leverage Ratios in
excess of the Leverage Ratios from time to time permitted under Section 4.1: (1)
the existence of such pricing in the above schedule (or the effectiveness
thereof) does not amend any of the requirements under Section 4.1 or waive any
Default or Event of Default caused by any non-compliance therewith from time to
time and (2) Lenders may nevertheless exercise from time to time during the
occurrence of an Event of Default any and all rights and remedies that are
permitted by any Loan Document or applicable law.
1.1.5.5. Calculation of Interest. Interest (including Deferred
Interest) under the Term Loan Facility will be calculated, accrued, imposed and
payable on the basis of a 360-day year for the actual number of days elapsed.
Interest (including Deferred Interest) will begin to accrue on any amounts
advanced to or on behalf of Borrowers under the Loan Documents on and as of the
date such funds are advanced. Unless prohibited by applicable law, interest
(other than Deferred Interest) will be compounded on a monthly basis and added
to the outstanding principal balance under the Loan Documents, payable in
accordance with Section 1.1.6.1.a. Unless prohibited by applicable law, Deferred
Interest will be compounded on a monthly basis (separately from Current
Interest). Interest on the Deferred Interest will be payable in accordance with
Section 1.1.6.1.b.
1.1.5.6. Special LIBO Rate Provisions. The following
provisions apply with respect to Adjusted LIBO rates (notwithstanding any other
provision hereof):
a. Change in Adjusted LIBO Rate. Any Adjusted LIBO
Rate may be prospectively adjusted by a particular Lender from time to time to
account for any additional or increased cost of maintaining any necessary
reserves for Eurodollar deposits (including any increase in the Reserve
Percentage) or any increased costs due to changes in the applicable law
occurring subsequent to the commencement of the then-applicable Interest Period.
4
Such Lender will give Administrative Agent notice of any such determination and
adjustment within a reasonable period of time thereafter. Upon receipt of such
notice, Administrative Agent will provide a copy thereof to Borrowers, and (upon
written request) such Lender will furnish a statement to Administrative Agent
and Borrowers setting forth the basis and the method for determining the amount
of such adjustment. A determination by any Lender hereunder will be conclusive
absent manifest error. If any Lender provides any such notice of adjustment,
then Borrowers may elect to change the then-applicable Rate Index (using the
same Rate Margin category) to the Prime Rate for any Portion then subject to an
Adjusted LIBO Rate. Such election to change the Rate Index must be made by
providing Administrative Agent written notice thereof at any time within 10
Business Days after receipt of such notice of adjustment (notwithstanding any
restriction hereunder limiting Rate Index changes to certain dates, but subject
to the requirement to pay all associated costs therewith). Upon Administrative
Agent's receipt of any such written election, the identified Portion will
thereupon begin to accrue interest at the Prime Rate plus the Rate Margin (as
applicable for the same Leverage Ratio as previously was applicable for the
Adjusted LIBO Rate) for the remainder of the then-current Interest Period for
such Portion.
b. Unavailability of Eurodollar Funds. An Adjusted
LIBO Rate will not be available for the Term Loan Facility if a particular
Lender at any time determines or reasonably believes that (1) Eurodollar
deposits equal to the amount of principal under the Term Loan Facility for the
applicable Interest Period are unavailable, or (2) an Adjusted LIBO Rate will
not adequately and fairly reflect the cost of maintaining balances under the
Term Loan Facility, or (3) by reason of circumstances affecting Eurodollar
markets, adequate and reasonable means do not then exist for ascertaining an
Adjusted LIBO Rate. Such Lender will give Administrative Agent notice of any
such determination and adjustment within a reasonable period of time thereafter.
Upon receipt of such notice, Administrative Agent will provide a copy thereof to
Borrowers, and (upon written request) such Lender will furnish to Administrative
Agent and Borrowers a statement setting forth the basis for such determination
or reasonable belief. A determination or belief by any Lender hereunder will be
conclusive absent manifest error.
c. Illegality. An Adjusted LIBO Rate also will not be
available under the Term Loan Facility if a particular Lender at any time
determines or reasonably believes that it is unlawful or impossible to fund or
maintain sufficient Eurodollar liabilities for the Term Loan Facility under an
Adjusted LIBO Rate. Such Lender will give Administrative Agent notice of any
such determination and adjustment within a reasonable period of time thereafter.
Upon receipt of such notice, Administrative Agent will provide a copy thereof to
Borrowers, and (upon written request) such Lender will furnish to Administrative
Agent and Borrowers a statement setting forth the basis for such determination
or reasonable belief. A determination or belief by any Lender hereunder will be
conclusive absent manifest error.
d. Continuance of a Default. An Adjusted LIBO Rate,
unless Required Lenders otherwise consent, also will not be available under the
Term Loan Facility during the existence of any Default or Event of Default under
the Loan Documents.
e. Alternative Rate. During the occurrence of any
event described in either Clauses "b", "c" or "d" of this Subsection, each
Lender's obligation hereunder
5
to fund or maintain balances under an Adjusted LIBO Rate will be suspended, and
during such period, the outstanding balance under the Term Loan Facility will
bear interest at the Prime Rate plus the appropriate Rate Margin (determined in
accordance with Section 1.1.5.4).
1.1.6. Repayment and Prepayment. Each Borrower (jointly and
severally) hereby promises to pay Administrative Agent the aggregate
indebtedness under the Term Loan Facility (and other Loan Documents) in
accordance with the following provisions (and, as applicable, Sections 1.3, 1.5
and 1.7):
1.1.6.1. Interest Payments.
a. Payment of Current Interest. Current
Interest accrued under the Term Loan Facility is due and payable quarterly in
arrears on the last calendar day of each quarter and also, at the option of
Administrative Agent, on the last calendar day of each Interest Period for any
Portion accruing interest at an Adjusted LIBO Rate. Such payments shall commence
on the first such date after the Closing Date. Upon prior written notice of at
least 30 calendar days from Administrative Agent to Borrowers, Administrative
Agent may change the date during a quarter on which such payments are due and
payable.
b. Payment of Deferred Interest. The accrued
Deferred Interest (including all interest thereon) shall be due and payable in
full in one lump sum upon the earliest occurrence of any of the following
events: (a) the Term Loan Maturity Date, or (b) the date that all the
Obligations hereunder are paid in full and the Loan Documents are terminated, or
(c) the acceleration of the Obligations. Upon the occurrence of the events
described in (a) or (c), Administrative Agent, on behalf of Lenders entitled
thereto, either (i) may accept actual payment of all Deferred Interest
(including all interest thereon) accrued prior to such date or (ii) may accept
payment of 50% of such Deferred Interest and retain the right to obtain either
the Warrants pursuant to the terms set forth in the Option and Warrant Agreement
or the remainder of the Deferred Interest. Upon the payment in full of the
Obligations hereunder and the termination of the Loan Documents, Administrative
Agent, on behalf of such Lenders, must choose to either (i) accept payment of
50% of such Deferred Interest and the Warrants, or (ii) accept actual payment of
all Deferred Interest (including all interest thereon) accrued prior to such
date. If such Lenders have exercised the Option in accordance with the terms of
the Option and Warrant Agreement, then Administrative Agent, on behalf of such
Lenders, shall be entitled to receive payment of only 50% of such accrued
Deferred Interest, but may (at their election) treat any accrued but foregone
Deferred Interest (including all interest thereon) as additional exercise price
paid for the Warrant Shares if and when such Warrants are exercised. Deferred
Interest shall not be prepaid without the prior written consent of
Administrative Agent.
1.1.6.2. Principal Payments -- Amortization. On the
last calendar day of each May, August, November and February, beginning with May
31, 2002, a payment of the principal balance under the Term Loan Facility (after
accounting for all Advances and prior to any prepayments) is due and payable
according to the following schedule:
6
Required
Quarterly Payment Payment Date
----------------- ------------
$0 Closing Date through 5/31/02
$150,000 8/31/02 through 5/31/03
$375,000 8/31/03 through 5/31/04
$375,000 8/31/04 through 5/31/05
$600,000 8/31/05 through 5/31/06
1.1.6.3. Principal Payments - Excess Cash Flow. An
annual principal payment equal to 35% of Excess Cash Flow for the immediately
preceding calendar year is due and payable in its entirety on the last calendar
day of February, commencing with February 28, 2002.
1.1.6.4. Payments at Maturity. The outstanding
indebtedness under the Term Loan Facility (including all principal, interest,
fees, expenses and indemnities) is due and payable in its entirety on the Term
Loan Maturity Date.
1.1.6.5. Prepayments. a. Voluntary Prepayments. At
any time, upon prior written notice to Administrative Agent of at least five (5)
Business Days, the outstanding principal balance under the Term Loan Facility
may be prepaid in whole or in part without premium or penalty, except as
provided in Section 1.5. Any voluntary partial prepayment must be in an amount
of not less than $100,000 or in multiples of $100,000 in excess thereof, unless
the outstanding principal balance under the Term Loan Facility is less than
$100,000 in which case the entire amount may be prepaid.
b. Mandatory Prepayments -- Excessive
Balance. If the outstanding principal balance under the Term Loan Facility at
any time exceeds the Term Loan Commitment as determined in accordance with
Section 1.3, then such excess amount outstanding must be re-paid to
Administrative Agent in its entirety immediately upon the earlier of (1)
awareness by Borrowers of the advance or incurrence thereof or (2) demand by
Administrative Agent for payment thereof.
c. Mandatory Prepayments -- Equity Issuances
and Asset Sales. If any Borrower issues any equity securities (other than (a)
equity securities to another Borrower, or (b) pursuant to the Employee Option
Plan (as defined in the Option and Warrant Agreement) or (c) as a result of the
exercise of options or warrants that are outstanding on the Closing Date and
have been disclosed to Administrative Agent in the Option and Warrant Agreement)
or if Borrowers collectively sell, lease, license, transfer or otherwise dispose
of any assets (other than inventory or other assets either sold in the ordinary
course of business with the proceeds thereof promptly reinvested in similar
assets at similar locations or sold to another Borrower, and other than a sale
of NBG Solutions, Inc., NBG Travel Exclusive, Inc. and NBG Interactive, Inc.
each a Subsidiary of NBG, with the proceeds thereof promptly reinvested in
Borrowers' business) then a prepayment must be immediately made on the
outstanding indebtedness under the Term Loan Facility, unless Required Lenders
otherwise consent. The amount of any such mandatory prepayment will be the
higher of the cash proceeds or the cash
7
equivalent of the fair market value of any such equity issuance or asset
dispositions net of (1) reasonable commissions and expenses actually paid to
unrelated third parties in connection with such transactions and (2) taxes
actually due as a direct result of such transactions (as such taxes are
estimated and certified to Administrative Agent by an acceptable certified
public accountant or the chief financial officer). Notwithstanding the
foregoing, so long as no Default or Event of Default has occurred and is
continuing, no prepayment will be required as a result of the issuance of equity
securities if the issuance of equity securities is for the purpose of effecting
acquisitions, or financing growth in Borrowers' business, and the proceeds
generated from such issuance are in fact, so used.
d. In General. Any prepayment under the Term
Loan Facility must include all accrued but unpaid Current Interest under the
Term Loan Facility allocable to the amount prepaid through the date of such
prepayment.
1.1.6.6. Availability for Reborrowing. Principal
amounts repaid or prepaid under the Term Loan Facility prior to the Term Loan
Maturity Date will not be available for re-borrowing hereunder.
1.2. Intentionally Blank.
1.3. Determination of Commitment Amounts.
1.3.1. Initial Commitments. Upon the execution of this
Agreement and satisfaction of the conditions precedent set forth in Section 2.1,
the Term Loan Commitment established hereunder will be $6.2 million ("Term Loan
Commitment"). Notwithstanding the foregoing, upon Borrowers' request and
satisfaction of the conditions precedent set forth in Section 2.2, Lenders (in
their sole and absolute discretion) may establish one or more additional
Facilities (which will become part of the Term Loan Facility) pursuant to which
the Term Loan Commitment may be increased from time to time by up to $10 million
for a total Term Loan Commitment of up to $16.2 million.
1.3.2. Available Credit Portion. The maximum amount of credit
available at any time under the Term Loan Facility may not exceed the amount
resulting from the following formula:
a. The then existing Term Loan Commitment,
b. Minus the then-aggregate amount of all payments of
Excess Cash Flow required to have been paid since the Closing Date under Section
1.1.6.3,
c. Minus the then-aggregate amount of all prepayments
relating to equity issuances and asset sales required to have been paid since
the Closing Date under Section 1.1.6.5.c, and
d. Minus the aggregate amount of all voluntary
commitment reductions requested under Section 1.3.3.
8
(Collectively, the amount resulting from the equation under categories "a"
through "d" above is referred to as the "Available Credit Portion".) On the
effective date of any such reduction in the Available Credit Portion, a
prepayment must be made to the extent required under Section 1.1.6.5.b.
1.3.3. Voluntary Reduction of Commitment. Upon giving
Administrative Agent prior written notice of at least ten (10) Business Days,
Borrowers at any time and from time to time may reduce the Term Loan Commitment
in multiples of $100,000. On the effective date of any such reduction, a
prepayment must be made to the extent required under Section 1.1.6.5.b. Any such
reduction in the Term Loan Commitment will be permanent, and such Commitment
cannot thereafter be increased without the written consent of Lenders.
1.4. Advances.
1.4.1. Requesting Advances. To request an Advance (other than
the initial Advance on the Closing Date) under the Term Loan Facility, Borrowers
must give Administrative Agent written notice (or verbal notice by telephone
with immediate written confirmation to follow) at least three (3) Business Days
(but not more than ten (10) Business Days) prior to the requested Settlement
Date for such Advance (such notice, an "Advance Request"). Such Advance Request,
together with certain certifications, must be substantially in the form of
Exhibit 1.4.1 or such other form as Administrative Agent may reasonably request.
Borrowers shall request an Advance of $6,200,000 on the Closing Date.
1.4.2. Funding Advances. Subject to the satisfaction of and compliance
with the terms and conditions hereof (including, as applicable, the conditions
precedent specified in Article 2), Administrative Agent will make each Lender's
Pro Rata portion of each requested Advance (to the extent such funds are
received by Administrative Agent) available by crediting such amount to the
Account with Administrative Agent (or by such other means as Administrative
Agent may consider reasonable). At the written request and expense of Borrowers,
Administrative Agent will wire transfer all or any portion of an Advance in
accordance with such written instructions therefor. By executing this Agreement,
each Borrower (jointly and severally) hereby requests Administrative Agent and
each Lender to make and fund the initial Advance in the amount of $6,200,000 (to
the extent that Administrative Agent receives each Lender's Pro Rata portion of
the initial Advance) in accordance with the Advance Request delivered on the
date hereof, using the form attached as Exhibit 1.4.1.
1.4.3. Indemnification for Revocation or Failure to Satisfy Conditions.
Each Borrower (jointly and severally) will indemnify each Lender and
Administrative Agent against all losses and costs incurred by such Lender and
Administrative Agent as a result of any revocation of any requested Advance or
any failure to fulfill the applicable conditions precedent to such Advance on or
before the requested Settlement Date specified in an Advance Request. Such
indemnification will include (among other things) all losses and costs incurred
by reason of the liquidation or reemployment of funds required by such Lender or
Administrative Agent to fund the Advance when such Advance, as a result of such
failure, is not made on the requested Settlement Date. Such Lender's or
Administrative Agent's (as applicable) calculation of such losses and costs will
be conclusive absent manifest error.
9
1.4.4. Obligation to Advance. No Lender will be obligated to
make any Advance under the following circumstances: (a) if the principal amount
of such Advance plus the aggregate amount outstanding under the Term Loan
Facility would exceed the Available Credit Portion, or (b) during the existence
of a Default or an Event of Default hereunder, or (c) if such Advance would
cause a Default or Event of Default hereunder.
1.5. Payments in General.
1.5.1. Manner and Place of Payments. All payments of
principal, interest, fees, expenses, indemnities and other amounts due under the
Loan Documents must be received by Administrative Agent by wire transfer (unless
Administrative Agent otherwise consents) in immediately available funds in U.S.
dollars (and without any deduction, offset, netting, reservation of rights or
counterclaim) on or before Two O'clock (2:00) p.m. Eastern Time ("ET") on the
due date therefor at the principal office of Administrative Agent set forth in
Notice Section hereof or at such other place as Administrative Agent may
designate from time to time.
1.5.2. Special Payment Timing Issues. Whenever any payment to
be made under any Loan Document is due on a day that is not a Business Day, then
such payment may be made on the next succeeding Business Day, and such extension
of time will be included in the computation of interest under such Loan
Document. Any funds received by Administrative Agent after 2:00 p.m. ET on any
day will be deemed to be received on the next succeeding Business Day.
1.5.3. Application of Payments. All payments and other funds
received by Administrative Agent under the Loan Documents will be applied in the
following order: (a) first to the payment of any fees and charges due under the
Loan Documents, and (b) then to any obligations for the payment of expenses,
costs and indemnities due under the Loan Documents, and (c) then to the payment
of interest due and owing under the Loan Documents, and (d) then to the
principal indebtedness due under the Term Loan Facility, and (e) then to
principal outstanding (but not yet due) under the Term Loan Facility, and (f)
then to any other interest accrued under the Loan Documents, and (g) then to any
other indebtedness of any Borrower or other Obligor to any Lender.
Notwithstanding the foregoing, payments allocable to principal (other than
scheduled periodic payments) will be applied to reduce future scheduled payments
in the inverse order of maturity.
1.5.4. LIBO Rate Payments Not at End of Interest Period. Upon
payment of any amount accruing interest based upon an Adjusted LIBO Rate on any
day other than the last day of the corresponding Interest Period (whether such
payment is voluntary, mandatory, by demand, acceleration or otherwise), then
Borrowers must pay Administrative Agent the greater of (a) $500 or (b) all costs
and losses (including funding costs and any losses associated with the
re-deployment of such funds for the balance of such Interest Period) that may
arise or be incurred as a result of or in connection with such payment (as such
costs and losses may be calculated by Lenders). Upon written request, Lenders
(through Administrative Agent) will furnish a statement setting forth the basis
for such calculation. A determination or calculation by any Lender hereunder
will be conclusive absent manifest error.
10
1.5.5. Capital Adequacy, Taxes and Other Adjustments. If any
Lender determines that (a) the adoption, implementation or interpretation after
the Closing Date of any law, treaty, governmental (or quasi-governmental) rule,
regulation, guideline, directive, policy or order regarding capital adequacy,
reserve requirements, taxes or similar requirements, or (b) compliance by such
Lender or any entity controlling or funding the operations of such Lender with
any request or directive regarding capital adequacy, reserve requirements, taxes
or similar requirements (whether or not having the force of law and whether or
not failure to comply therewith would be unlawful) from any central bank,
governmental agency, controlling entity, funding source or body having
jurisdiction would, in either instance, have the effect of increasing the amount
of capital, reserves, taxes (other than income taxes of Administrative Agent or
any Lender), funding costs or other funds required to be maintained or paid by
such Lender and thereby reducing the rate of return on such Lender's capital as
a consequence of its obligations under the Loan Documents, then Borrowers must
pay to such Lender additional amounts sufficient to compensate such Lender for
such reduction. Such Lender will give Administrative Agent notice of any such
determination and payment amount within a reasonable period of time thereafter.
Upon receipt of such notice, Administrative Agent will provide a copy thereof to
Borrowers, and (upon written request) such Lender will furnish a statement to
Administrative Agent and Borrowers setting forth the basis and the method for
determining the amount of such payment. A determination by any Lender hereunder
will be conclusive absent manifest error.
1.5.6. Payment of Expenses, Indemnities and Protective
Advances. If any funds are advanced or costs are incurred by Administrative
Agent or any Lender to or on behalf of Borrowers or otherwise as permitted under
the Loan Documents (including as protective advances), other than Advances
pursuant to Section 1.4, then such advances or costs must be re-paid to
Administrative Agent in their entirety immediately upon the earlier of (a)
awareness by Borrowers of the advance or incurrence thereof or (b) demand by
Administrative Agent for payment thereof.
1.5.7. Payments upon Termination. Notwithstanding any other
provision hereof, the entire outstanding indebtedness under each Facility
(including all principal, interest, fees, expenses and indemnities) is due and
payable in its entirety upon any termination of such Facility, the corresponding
Commitment therefor, or this Agreement.
1.5.8. Late Payments. If any payment (of principal, interest,
fees, expenses, indemnities or other amounts) due under any Loan Document is not
received by Administrative Agent in immediately available funds on or before the
7th calendar day after the due date therefor, then each Borrower (jointly and
severally) hereby agrees (to the maximum extent not prohibited by applicable
law) to pay to Lenders (through Administrative Agent and upon Administrative
Agent's request) a late payment charge equal to 5% of the amount of such late
payment. Additional and separate 5% late payment charges (to the maximum extent
not prohibited by applicable law) may be subsequently imposed hereunder by
Administrative Agent from time to time (a) if any late payment or late payment
charge is not received by Administrative Agent in immediately available funds on
or before the 30th calendar day after any demand therefor, and (b) if any other
payment due under any Loan Document is not received by Administrative Agent in
immediately available funds on or before the 7th calendar day after the due date
therefor. The late
11
payment charges due under this Section are in addition to any other interest,
fees, charges, expenses or indemnities due under the Loan Documents.
1.5.9. Default Interest. During the existence of a Default or
an Event of Default hereunder, each Borrower (jointly and severally) hereby
agrees (to the maximum extent not prohibited by applicable law) to pay to
Lenders (through Administrative Agent and upon Administrative Agent's request
but commencing on the date of occurrence of such Default or Event of Default)
interest on any indebtedness outstanding hereunder at the rate of Three Percent
(3%) per annum in excess of the rate then otherwise applicable to such
indebtedness. Notwithstanding the foregoing, if the relevant Default is under
Section 7.1.10, then such rate increase (to the maximum extent not prohibited by
applicable law) will occur automatically without any request by Administrative
Agent.
1.5.10. Usury Savings Provision. Notwithstanding any provision
of any Loan Document, Borrowers (individually and collectively) are not and will
not be required to pay interest at a rate or any fee or charge in an amount
prohibited by applicable law. If interest or any fee or charge payable on any
date would be in a prohibited amount, then such interest, fee or charge will be
automatically reduced to the maximum amount that is not prohibited, and any
interest, fee or charge for subsequent periods (to the extent not prohibited by
applicable law) will be increased accordingly until Administrative Agent and
each Lender receives payment of the full amount of each such reduction. To the
extent that any prohibited amount is actually received by Administrative Agent
or any Lender, then such amount will be automatically deemed to constitute a
repayment of principal indebtedness hereunder.
1.6. Release of Security. Upon termination of the Loan Documents in
accordance with Section 10.10, then Administrative Agent (at the written request
and expense of Borrowers) (i) will release the Obligors and the property serving
as Collateral under the Loan Documents (without representation, warranty,
recourse, liability or indemnification of any kind by or to Administrative Agent
or any Lender), and (ii) will execute and deliver such UCC termination
statements, mortgage releases, deed of trust releases, and other documentation
and instruments (all in form and substance reasonably acceptable to
Administrative Agent) as may be reasonably requested and provided to
Administrative Agent to effect such releases and terminations, and (iii) will
terminate and cancel all Commitments and all Facilities under the Loan
Documents.
1.7. Fees and Other Compensation.
1.7.1. Origination Fee. On the Closing Date, Borrowers will
pay Administrative Agent an Origination Fee in the amount of $150,000, which
amount shall be treated as prepaid non-refundable interest.
1.7.2. Increased Term Loan Facility Origination Fee. On the
date of any increase in the Term Loan Commitment, Borrowers will pay
Administrative Agent an additional Origination Fee in the amount equal to 2.5%
of the increase in the Term Loan Commitment, which amount will be treated as
prepaid non-refundable interest.
12
1.7.3. Issuance of Option and Xxxxxxxx.Xx additional compensation for
the cost and risk incurred associated with underwriting and establishing the
Facilities (but in no way affecting or relieving any Borrower of any of its
obligations to fully and timely perform and to repay the entire indebtedness due
under the Loan Documents), NBG will issue and grant to Lenders entitled thereto
(or their designated Affiliates) an option ("Option") to acquire warrants
exercisable into shares of capital stock of NBG sufficient to represent 19% of
the issued and outstanding shares of capital stock, on a fully diluted basis
("Warrants"). The Option will be fully earned by such Lenders (or their
Affiliates) as of the Closing Date. Upon the exercise of the Option, all
Warrants will be fully earned by such Lenders (or their Affiliates) in
accordance with the terms of the Option and Warrant Agreement. The Warrants (and
all of Lenders' rights in connection therewith) are freely assignable and
transferable at any time and from time to time by any Lender entitled thereto
(or any of its Affiliates or assignees) to any other Person, provided that such
Lender complies with any applicable restrictions thereon (and obtains any
necessary approvals in connection therewith) required by the SEC or the Option
and Warrant Agreement itself.
1.7.4. Other Fees. Other fees and charges may be imposed by
Administrative Agent or any Lender for services rendered under and in accordance
with other agreements with Administrative Agent or such Lender.
ARTICLE 2: CONDITIONS PRECEDENT
2.1. Closing Conditions. The obligation of Administrative Agent or any
Lender to execute and perform the Loan Documents, and to establish the Term Loan
Facility, and to fund the Advances listed on the initial Advance Request
provided by the Borrowers on the Closing Date are subject to the following
conditions precedent (unless and except to the extent expressly waived by
Administrative Agent and each Lender in their sole and absolute discretion):
2.1.1. Compliance.
2.1.1.1. Fees and Expenses. Borrowers must have paid
(or made acceptable arrangements with Administrative Agent to pay) all fees and
expenses due and payable hereunder, including all fees due and payable under
Section 1.7 and the reasonable fees and expenses of Administrative Agent's and
each Lender's attorneys and in-house documentation personnel with respect to the
preparation, negotiation and execution of the Loan Documents.
2.1.1.2. Representations. Each, and all,
representations and warranties contained in this Agreement (including those in
Article 3) and in each other Loan Document, certificate or other writing
delivered to Administrative Agent or any Lender pursuant hereto or thereto on or
prior to the Closing Date must be true, correct and complete in all material
respects on and as of the Closing Date, except for such deviations disclosed in
writing and acceptable to Administrative Agent and each Lender.
2.1.1.3. No Default. There must not be any Default or
Event of Default hereunder or any default under any other Loan Document on the
Closing Date, and there
13
must not be any such Default or Event of Default occurring as a result of
executing or advancing funds under the Loan Documents, except for such defaults
disclosed in writing and acceptable to Administrative Agent and each Lender.
2.1.1.4. No Material Change. There must not have been
(in Administrative Agent's or Lenders' reasonable opinion) any Material Adverse
Change between the date for the most recent financial statements delivered to
Administrative Agent and the Closing Date.
2.1.2. Documents. Administrative Agent must have received the
following documents, agreements and certificates (together with all exhibits and
schedules thereto), each duly executed, in form, substance and amount
satisfactory to Administrative Agent and, when applicable, recorded or filed in
the appropriate public office:
2.1.2.1. Credit Agreement. This Agreement.
2.1.2.2. Promissory Notes. The Term Loan Notes as
described in Section 1.1.4.
2.1.2.3. Security Agreement, Collateral Assignment
and Pledge. A master security agreement, collateral assignment and pledge by
each Borrower in favor of Administrative Agent granting Administrative Agent a
security interest in and collaterally assigning to Administrative Agent all of
such grantor's tangible and intangible personal property assets (including
fixtures), whether now owned or hereafter acquired, and the proceeds and
products thereof, as collateral security for the indebtedness and obligations
hereunder, together with all necessary financing statements and termination
statements (each as filed), stock certificates and powers executed in blank,
waivers and consents, and evidence of any other recordations required by
applicable law or by Administrative Agent to perfect such security interests in
a manner that will be subject only to Permitted Liens.
2.1.2.4. Intellectual Property Security Agreements.
One or more separate intellectual property security agreements by each Borrower
in favor of Administrative Agent encumbering all of such grantor's copyrights,
patents, trade names, trademarks, service names, service marks and other
intellectual property (including any and all applications and licenses
therefor), all as now owned or hereafter acquired, and the proceeds and goodwill
thereof, together with all appropriate financing statements and termination
statements (each as filed), waivers and consents, and any other documents or
recordations required by applicable law or by Administrative Agent to perfect
such interests.
2.1.2.5. Assignment of Life Insurance Policies. One
or more separate assignments to Administrative Agent of the key-person life
insurance policy (or policies) insuring the life of each of (1) Xxxx X. Xxxxxx,
III, for at least $3,000,000; (2) Xxxx X. Xxxxxx, for at least $1,000,000; (3)
Xxxx X. Xxxxxxxxx, for at least $1,000,000; and (4) Xxxxxx X. Xxxxxx, for at
least $1,000,000; which assignments (a) must be in form and substance acceptable
to Administrative Agent, and (b) must be executed or consented to by each
beneficiary, each insured
14
and the relevant insurance company, and (c) must indicate that each life
insurance policy is fully paid for a period of at least 12 months beyond the
Closing Date.
2.1.2.6. Estoppel and Consent Agreements. One or more
estoppel and consent agreements in favor of Administrative Agent by each party
to any Material Contract (other than the Lease for its headquarters) with any
Borrower consenting to the encumbrance of such property and/or the collateral
assignment of the rights with respect thereto in favor of Administrative Agent
and granting to Administrative Agent certain other rights pursuant thereto.
2.1.2.7. Real Estate Documents. One or more deeds of
trust, mortgages and/or fixture filings by each Borrower in favor of
Administrative Agent encumbering all of such grantor's real property and
leasehold interests (including fixtures) as collateral security for the
indebtedness and obligations hereunder, together with all necessary financing
statements and termination statements, deeds of release, estoppel certificates,
waivers and consents, Lender title insurance, surveys, environmental reports,
appraisals, flood status certifications, and any other documents or recordations
required by applicable law or by Administrative Agent to perfect such liens in a
manner that will be subject only to Permitted Liens.
2.1.2.8. Warrants. One or more separate Option and
Warrant Agreements by NBG issuing and granting to each Lender entitled thereto
(or its designated Affiliate) an option to acquire the Warrants, together with
all underlying warrant certificates and evidence of necessary actions by NBG to
authorize and issue such warrants and related warrant shares.
2.1.2.9. Promissory Note. A promissory note by Xxxx
X. Xxxxxx, III in favor of NBG in the principal amount of $100,000 that is
properly endorsed to Administrative Agent by NBG and is otherwise in form and
substance acceptable to Administrative Agent.
2.1.2.10. Promissory Note. A promissory note by
Xxxxxx X. Xxxxxx in favor of NBG in the principal amount of $15,000 that is
properly endorsed to Administrative Agent by NBG and is otherwise in form and
substance acceptable to Administrative Agent.
2.1.2.11. Promissory Note. A promissory note by Xxxx
X. Xxxxxxxxx in favor of NBG in the principal amount of $45,000 that is properly
endorsed to Administrative Agent by NBG and is otherwise in form and substance
acceptable to Administrative Agent.
2.1.2.12. Promissory Note. A promissory note by Xxxx
X. Xxxxxx in favor of NBG in the principal amount of $90,000 that is properly
endorsed to Administrative Agent by NBG and is otherwise in form and substance
acceptable to Administrative Agent.
2.1.2.13. Insurance. Current proof of insurance with
an indication of loss payee and additional insured endorsements in favor of
Administrative Agent and each Lender with respect to all of the coverages
required under Section 4.8. Such proof of insurance must be indicated pursuant
to one or more certificates on (a) an XXXXX 27 form (3/93) for property-
15
related insurance coverages and (b) a modified version of an XXXXX 25-S form
(3/93), in each instance permitting reliance by Administrative Agent and
requiring cancellation notification.
2.1.2.14. Compliance Certificates. A certificate from
an Authorized Officer of each Borrower dated as of the Closing Date certifying
as to compliance with the matters described under Section 2.1.1.
2.1.2.15. Opinions of Counsel. One or more written
opinions from legal counsel to Borrowers addressed to Administrative Agent and
each Lender and Administrative Agent's counsel and dated as of the Closing Date
opining as to such matters as Administrative Agent may request.
2.1.2.16. Payoff Instructions for Prior Indebtedness.
A letter from Borrowers to Administrative Agent, consistent with the
requirements of Section 1.1.3, Section 1.4 and Section 2.1.1, instructing
Administrative Agent how to disburse the proceeds of the initial Advance,
together with payoff and release letters from each Person receiving any such
proceeds.
2.1.2.17. Authorization Documents. A certificate of
an Authorized Officer of each Borrower and each other non-natural person
executing any Loan Document delivering true, accurate and complete versions of
(a) its Articles of Incorporation, Articles of Organization or Certificate of
Partnership (as applicable) and all amendments thereto, and (b) its Bylaws,
Operating Agreements or Partnership Agreements (as applicable) and all
amendments thereto, and (c) the resolutions authorizing its execution, delivery
and full performance of the Loan Documents and all other documents, certificates
and actions required hereunder or in connection herewith, and (d) an incumbency
certificate setting forth its officers (together with the corresponding
signatures), and (e) a long-form good standing and qualification certificate
(issued within 15 calendar days before the Closing Date) with respect to each
jurisdiction listed on Schedule 3.1.
2.1.2.18. Lien Searches. Searches (conducted within
15 calendar days before the Closing Date) satisfactory to Administrative Agent
with respect to consensual liens, tax liens, judgments and bankruptcy, listing
respectively (1) all effective UCC financing statements that name any Borrower
(including any predecessor thereto and any operating or tradenames thereof) as
"debtor" that are filed in the States of Oregon, California, Illinois, New York
and Texas or any other U.S. jurisdiction in which such debtor currently operates
or has had assets at any time within the immediately preceding 12 calendar
months (together with copies of such financing statements), and (2) all tax
liens against any Obligor (or the assets thereof), and (3) all outstanding
judgments against any Obligor (or the assets thereof).
2.1.2.19 Cooperation and Performance Agreements. One
or more separate agreements executed by each of Xxxx X. Xxxxxx, III, Xxxx X.
Xxxxxx and Xxxx X. Xxxxxxxxx (each, a "Manager") in favor of Administrative
Agent agreeing (among other things) to cooperate and to continue providing
certain management services in the event of default by or an insolvency or
bankruptcy by any Borrower.
16
2.1.2.20 Employment Agreements. Copies of each
employment agreement between any Borrower and each of Xxxx X. Xxxxxx, III, Xxxx
X. Xxxxxx, Xxxx X. Xxxxxxxxx and Xxxxxx X. Xxxxxx, and, with respect to Xxxx X.
Xxxxxx, III and Xxxx X. Xxxxxx, amendments to such employment agreements with
respect to compensation to be paid.
2.1.2.21 Other Agreements. A copy of the executed
Stock Purchase Agreement, together with all schedules and exhibits thereto.
2.1.2.22 Other Documents. Administrative Agent must
have received any additional agreements, documents and certificates as
Administrative Agent or its counsel may reasonably request.
2.1.3. Acquisition of Xxxxxx Entertainment Corporation by
Borrowers. Borrowers simultaneously must consummate and complete the Acquisition
under terms and conditions reasonably acceptable to Required Lenders. In
addition, the due diligence program conducted by Borrowers in connection with
such Acquisition separately must be reasonably acceptable to Required Lenders in
form, content and results.
2.2. Additional Conditions Precedent in Connection with Increased Term
Loan Commitments. The obligation of Administrative Agent and each Lender to fund
any request in connection with an increase in the Term Loan Commitment is
subject to the following conditions precedent (unless and except to the extent
expressly waived by Administrative Agent and each Lender in their sole and
absolute discretion, but with the concurrence of the Required Lenders):
2.2.1. Commitment to Lend. Borrowers must have received from
Lenders a written commitment to advance funds in respect of such increase in the
Term Loan Commitment (to be issued at the sole and absolute discretion of
Lenders).
2.2.2. Advance Request. Administrative Agent must have
received an Advance Request under and in accordance with Section 1.4.1.
2.2.3. Cash Flow Leverage. As of the Settlement Date for such
Advance (and in addition to any other requirements and covenants hereunder),
Borrowers must be in compliance with the Leverage Ratio requirement under
Section 4.1 using an amount for Funded Debt that is as of such Settlement Date
and inclusive of the proposed Advance.
2.2.4. Other Documents. Administrative Agent must have
received any additional documents, certificates and opinions as Administrative
Agent or its counsel may reasonably request, including UCC-1 financing
statements, fixture filings and leasehold mortgages regarding new locations for
other assets of any Borrower.
2.2.5. Subsequent Acquisitions. Borrowers simultaneously must
consummate and complete the acquisition being funded with the proceeds of the
Advance under terms and conditions reasonably acceptable to Required Lenders. In
addition, the due diligence program conducted by Borrowers in connection with
such acquisition separately must be reasonably acceptable to Required Lenders in
form, content and results.
17
2.2.6. Compliance. Borrowers must have paid (or made
acceptable arrangements with Administrative Agent to pay) all fees and expenses
due and payable hereunder, including all reasonable expenses incurred in
connection with or as a result of reviewing and funding such Advance Request.
2.2.6.1. Representations. Each, and all,
representations and warranties contained in the Loan Documents (including those
in Article 3) and in each other certificate or other writing delivered to
Administrative Agent pursuant hereto or thereto on or prior to the Settlement
Date must be true, correct and complete in all material respects on and as of
the Settlement Date, except for such deviations disclosed in writing and
acceptable to Administrative Agent and each Lender (which disclosure will not
constitute Lenders' waiver or acceptance thereof).
2.2.6.2. No Default. There must not be any Default or
Event of Default hereunder or any default under any other Loan Document on the
Settlement Date, and there must not be any such Default or Event of Default
occurring as a result of funding such Advance, except for such defaults
disclosed in writing and acceptable to Administrative Agent and each Lender
(which disclosure will not constitute Lenders' waiver or acceptance thereof).
2.2.6.3. No Material Change. There must not have been
(in Administrative Agent's or Lenders' reasonable opinion) any Material Adverse
Change between the Closing Date and the Settlement Date.
2.2.7. Lien Searches. Administrative Agent must have received
satisfactory lien searches (dated no more than 15 calendar days before the
Settlement Date for the first Advance in connection with any increase in the
Term Loan Commitment) in all jurisdictions in which any Borrower is operating or
has business operations as of the Settlement Date that identify no liens that
are not acceptable to Administrative Agent (in its sole and absolute
discretion).
2.2.8. Amended Documents. Administrative Agent must have
received such amended and/or amended and restated Loan Documents from Borrowers
as Administrative Agent has determined (in its reasonable judgment) are
necessary or appropriate to reflect the increased amount of the Term Loan
Commitment.
ARTICLE 3: REPRESENTATIONS AND WARRANTIES
Each Borrower, as of the Closing Date and the Settlement Date for each
Advance hereunder, hereby (jointly and severally) represents and warrants as
follows:
3.1. Organization and Good Standing. Each Borrower (a) is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, and (b) has all requisite power and authority
(corporate, partnership, LLC and otherwise) to own its properties and to conduct
its business as now conducted and as currently proposed to be conducted, and (c)
is duly qualified to conduct business as a foreign organization and is currently
in good standing in each state and jurisdiction in which it conducts business,
except where failure to be duly qualified and in good standing could not have a
Material Adverse Effect. Each state and jurisdiction in
18
which any Borrower is organized or is (or should be) qualified to conduct
business under applicable law is listed on Schedule 3.1.
3.2. Power and Authority. Each Borrower has all requisite power and
authority under applicable law and under its Organic Documents, Authorizations
and Licenses to execute, deliver and perform the obligations under the Loan
Documents to which it is a party. Except as disclosed on Schedule 3.2, all
actions, waivers and consents (corporate, regulatory and otherwise) necessary or
appropriate for any Borrower to execute, deliver and perform the Loan Documents
to which it is a party have been taken and/or received.
3.3. Validity and Legal Effect. This Agreement constitutes, and the
other Loan Documents to which any Borrower is a party constitute (or will
constitute when executed and delivered), the legal, valid and binding
obligations of each Borrower (jointly and severally) enforceable against it in
accordance with the terms thereof.
3.4. No Violation of Laws or Agreements. The execution, delivery and
performance of the Loan Documents (a) will not violate or contravene any
material provision of any material law, rule, regulation, administrative order
or judicial decree (federal, state or local), and (b) will not violate or
contravene any provision of the Organic Documents of any Borrower, and (c) will
not result in any material breach or violation of (or constitute a material
default under) any material agreement or instrument by which any Borrower or any
of its property may be bound, and (d) will not result in or require the creation
of any Lien (other than pursuant to the Loan Documents) upon or with respect to
any properties of any Borrower, whether such properties are now owned or
hereafter acquired.
3.5. Title to Assets; Existing Encumbrances; Identification of
Intellectual and Real Property.
3.5.1. Each Borrower has good and marketable title to all of
its owned real and personal property assets and the right to possess and use all
of its leased or licensed real and personal property assets. All such property
interests are free and clear of any Liens, except for Permitted Liens (as
defined in Section 5.5). Each such property and asset owned, leased or licensed
by any Borrower is titled, leased or licensed in the current legal name of such
Borrower.
3.5.2. Intellectual Property. Schedule 3.5A lists each
trademark, service xxxx, copyright, patent, database, customized application
software and systems integration software, trade secret and other intellectual
property owned, licensed, leased, controlled or applied for by any Borrower,
whether or not such intellectual property is recorded with the Copyright Office
or the Patent and Trademark Office, together with relevant identifying
information with respect to such intellectual property describing (among other
things) the date of creation, the method of protection against adverse claims
and the registration number.
3.5.3. Real Property. Schedule 3.5B lists each real property
interest owned, leased or otherwise used by any Borrower, together with relevant
identifying information describing (among other things) the use of each such
real property interest, the location and mailing address for each such real
property, a legal description for each such real property, an
19
indication of whether such interest is owned or leased (and, if leased, the
lessor and record owner thereof), and the estimated appraised value thereof.
Each such property and asset is in good order and repair (ordinary wear and tear
excepted) and is fully covered by the insurance required under Section 4.8.
Notwithstanding the foregoing, the legal description for Borrowers' leasehold
interest in that certain real property known and numbered as The Cascade
Building, 000 XX Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxx 00000 shall not be required
under the terms of this Section 3.5.3 unless and until Borrowers have fixtures
at such location.
3.5.4. Schedule 3.5C identifies each legal, operating and
trade name that any Borrower has used (or permitted the filing of a UCC
financing statement under) at any time during the twelve (12) consecutive
calendar years immediately preceding the Closing Date.
3.6. Capital Structure and Equity Ownership. Schedule 3.6 accurately
and completely discloses (a) the number of shares and classes of equity
ownership rights and interests of each Borrower authorized and/or outstanding
(whether existing as common or preferred stock, general or limited partnership
interests, or LLC membership interests, or warrants, options or other
instruments convertible into such equity), and (b) the ownership thereof and the
price per share or interest paid therefor (except NBG which is publicly traded),
and (c) the existence of preferential returns or liquidation rights with respect
to any such class of equity, and (d) the existence of any enhanced voting
rights, veto rights or director designation rights with respect to any such
class of equity, and with respect to options, warrants and convertible
instruments, the price, duration and conversion factor thereof. All such shares
and interests are validly existing, fully paid and non-assessable.
3.7. Subsidiaries, Affiliates and Investments. Schedule 3.7 accurately
and completely discloses (a) each Subsidiary and Affiliate of each Borrower
(other than its officers and directors) and (b) each investment in or loan to
any other Person by any Borrower in excess of $25,000.
3.8. Material Contracts. Schedule 3.8 (a) accurately and completely
discloses each Material Contract (as defined below) of each Borrower, and (b)
also indicates the following information with respect to each such contract: (1)
the contract parties thereunder, and (2) the contract term and any options or
renewals thereto, and (3) the monthly payment required thereunder, and (4) any
restrictions on assignments, and (5) any restrictions on disclosure of the terms
thereof, and (6) the existence of any breaches or defaults thereunder. No
Borrower has committed any unwaived breach or default under any Material
Contract (whether or not listed on Schedule 3.8), and after due inquiry and
investigation, no Borrower has any knowledge or reason to believe that any other
party to any such Material Contract (whether or not listed on Schedule 3.8) has
or might have committed any unwaived breach or default thereof. For purposes of
this Section 3.8, a "Material Contract" of a Borrower includes the following
types of agreements to which a Borrower is a party: (1) any contract with annual
compensation, consideration or payments in excess of $100,000, and (2) any
consulting agreement between any Borrower and Xxxx Xxxxx Xxxxxx, and (3) any
agreement between NBG and Xxxxx Xxxxxx Entertainment Corporation ("Xxxxxx
Entertainment") in which NBG purchases or otherwise acquires all or
substantially all the equity or assets of Xxxxxx Entertainment, and (4) any
Programming Contract executed by Borrower and any third party in which Borrower
is or becomes obligated for monetary obligations to Persons other than the host
of such program; and (5) any other agreement
20
or contract the loss or breach of which could reasonably be expected to have or
cause a Material Adverse Effect.
3.9. Licenses and Authorizations. Each Borrower possesses all Licenses
and other Authorizations necessary or required in the conduct of its businesses
and/or the operation of its properties. Each material Authorization is valid,
binding and enforceable on, against and by such Borrower. Each material
Authorization is subsisting without any defaults thereunder or enforceable
adverse limitations thereon, and no Authorization is subject to any proceedings
or claims opposing the issuance, continuance, renewal, development or use
thereof or contesting the validity or seeking the revocation thereof. Schedule
3.9 accurately and completely lists each material Authorization of each
Borrower, together with relevant identifying information describing such
Authorizations.
3.10. Taxes and Assessments. Except as disclosed on Schedule 3.10, each
Borrower has timely filed all required tax returns and reports (federal, state
and local) or has properly and timely filed for extensions of the time for the
filing thereof. No Borrower has knowledge of any deficiency, penalty or
additional assessment due or appropriate in connection with any such taxes. All
taxes (federal, state and local) imposed upon any Borrower or any of its
properties, operations or income have been paid and discharged prior to the date
when any interest or penalty would accrue for the nonpayment thereof, except for
those taxes being contested in good faith by appropriate proceedings diligently
prosecuted and with adequate reserves reflected on the financial statements in
accordance with GAAP (all as also disclosed on Schedule 3.10).
3.11. Litigation and Legal Proceedings. Except as disclosed on Schedule
3.11, there is no litigation, claim, investigation, administrative proceeding,
labor controversy or similar action that is pending or (to the best of each
Borrower's knowledge and information after due inquiry) threatened against any
Borrower or its properties that, if adversely resolved, could reasonably be
expected to have or cause a Material Adverse Effect.
3.12. Accuracy of Financial Information. All financial statements
previously furnished to Administrative Agent or any Lender concerning the
financial condition and operations of any one or more Borrowers (a) have been
prepared in accordance with GAAP consistently applied, and (b) fairly present
the financial condition of the organization covered thereby as of the dates and
for the periods covered thereby (but, with respect to interim periodic financial
statements, subject to normal and customary year end audit adjustments), and (c)
disclose all material liabilities (contingent and otherwise) of each Borrower.
In addition, all written information previously furnished to Administrative
Agent or any Lender concerning the financial condition and operations of any
Borrower are true, accurate and complete in all material respects.
3.13. Accuracy of Other Information. All written information contained
in any application, schedule, report, certificate, or any other document
furnished to Administrative Agent or any Lender by any Borrower or any other
Person (on behalf of any Borrower) in connection with the Loan Documents is in
all material respects true, accurate and complete, and no such Person (including
Borrowers) has omitted to state therein (or failed to include in any such
document) any material fact or any fact necessary to make such information not
misleading. All written projections furnished to Administrative Agent or any
Lender by any Borrower or any
21
other Person on behalf of any Borrower have been prepared with a reasonable
basis and in good faith, making use of such information as was available at the
date such projection was made.
3.14. Compliance with Laws Generally. Each Borrower is in compliance in
all material respects with all material laws, rules, regulations, administrative
orders and judicial decrees (federal, state, local and otherwise) applicable to
it, its operations and its properties.
3.15. ERISA Compliance. Each Borrower is in compliance in all material
respects with all applicable provisions of ERISA.
3.16. Environmental Compliance. Each Borrower has received all permits
and filed all notifications necessary under and is otherwise in compliance in
all material respects with all applicable Environmental Control Statutes.
3.17. Margin Rule Compliance. No Borrower owns or has any present
intention of acquiring any "Margin Stock" within the meaning of the following
Margin Regulations of the FRB: Regulation T at 12 C.F.R. Pt. 220, and Regulation
U at 12 C.F.R. Pt. 221, and Regulation X at 12 C.F.R. Pt. 224. The credit
extended under this Agreement does not constitute "Purpose Credit" within the
meaning of the FRB's Margin Regulations.
3.18. Fees and Commissions. Except as disclosed on Schedule 3.18 or as
required by Section 1.7, no Borrower owes any fees or commissions of any kind in
connection with this Agreement or the transactions contemplated hereby, and no
Borrower knows of any claim (or any basis for any claim) for any fees or
commissions in connection with this Agreement or the transactions contemplated
hereby.
3.19. Solvency. No Borrower is "insolvent," as such term is defined in
Section 101(32) of the Bankruptcy Code (11 U.S.C. ss. 101(32)). No Borrower, by
virtue of its obligations and actions in connection with the Loan Documents, has
engaged or is engaging in any transaction that constitutes a fraudulent transfer
or fraudulent conveyance under applicable federal or state law (including under
Section 548 of the Bankruptcy Code or under the Uniform Fraudulent Transfer Act
or the Uniform Fraudulent Conveyance Act).
ARTICLE 4: AFFIRMATIVE COVENANTS
Each Borrower (jointly and severally) hereby covenants and agrees that,
so long as any indebtedness remains outstanding hereunder, each Borrower will
comply with the following affirmative covenants:
4.1. Financial and Operating Covenants and Ratios. As of the end of
each fiscal quarter beginning with the respective fiscal quarters ending on the
dates set forth below - Borrowers (on a consolidated basis) will satisfy each of
the following financial ratios and characteristics, each of which will be
determined using GAAP consistently applied, except as otherwise expressly
provided:
22
4.1.1. Interest Coverage Ratio. A ratio of OCF to Interest
Expense of not less than 2.5-to-1.0 from and after May 31, 2002.
4.1.2. Total Charge Coverage Ratio. A ratio of OCF to Total
Charges of not less than 1.0-to-1.0 from and after May 31, 2002.
4.1.3. Cash Flow Leverage Ratio. A ratio of Funded Debt to OCF
of not more than the following:
a. 2.5-to-1.0, from May 31, 2002 through August 30,
2002; and
b. 2.25-to-1.0, from August 31, 2002 through November
29, 2002; and
c. 2.0-to-1.0, from November 30, 2002 through
November 29, 2003; and
d. 1.0-to-1.0, from and after November 30, 2003.
4.1.4. Maximum Programming Obligations and Affiliate Station
Expenses. The amount of Cumulative Programming Obligations of Borrowers and
Cumulative Affiliate Station Expenses of Borrowers (on a consolidated basis)
will not exceed the amounts set forth below, compliance with such covenant to be
measured on a cumulative basis as of the end of each fiscal quarter:
Percentage of Upfront Revenues
------------------------------
Fiscal Year Cumulative Programming Cumulative Affiliate
Ending Obligations Station Expenses
----------- ---------------------- --------------------
11/30/2001 22% 23%
11/30/2002 21.2% 16%
11/30/2003 28.9% 6.7%
Thereafter 28.9% 4.6%
Notwithstanding the foregoing, in the event Borrowers have entered into the
agreements disclosed on Schedule 4.1.4., that are in form and substance
acceptable to Administrative Agent in its sole discretion, on or prior to
December 1, 2001, the maximum aggregate amount of Cumulative Programming
Obligations and Cumulative Affiliate Station Expenses shall not exceed $8.3
million for fiscal year ending November 30, 2002.
4.1.5. Minimum Adjusted OCF. OCF of $750,000 measured at
November 30, 2001, and OCF of $1,400,000 measured at February 28, 2002.
23
4.2. Periodic Financial Statements and Compliance Certificates.
4.2.1. Monthly Financial Statements. Within 30 calendar days
after the end of each calendar month (including the last calendar month of each
year), Borrowers must prepare and deliver to Lender a complete set of unaudited
internal monthly financial statements, in form and substance as required by and
reasonably acceptable to Administrative Agent. Such financial statements must
include a balance sheet and an income statement (with appropriate notes and
schedules for individual divisions and subsidiaries and programs). Such
financial statements must be prepared in accordance with GAAP consistently
applied (except as approved by Administrative Agent is its sole and absolute
discretion). Together with the monthly financial statements, Administrative
Agent must also receive a certificate executed by Xxxx X. Xxxxxxxxx or such
other senior executive officer of Borrowers that is acceptable to Administrative
Agent stating that the financial statements fairly present the financial
condition of Borrowers as of the date thereof and for the periods covered
thereby.
4.2.2. Quarterly Financial Statements. Within 45 calendar days after
the end of each fiscal quarter (including the fourth fiscal quarter of each
year), Borrowers must prepare and deliver to Administrative Agent and each
Lender unaudited quarterly consolidated financial statements, in form and
substance as required by and reasonably acceptable to Administrative Agent. Such
financial statements must include a balance sheet and an income statement (with
appropriate notes and schedules including schedules for individual divisions and
subsidiaries and programs). Such financial statements must be prepared in
accordance with GAAP consistently applied (except as approved by Administrative
Agent in its sole and absolute discretion). Together with the quarterly
financial statements, Administrative Agent and each Lender must also receive a
certificate executed by Xxxx X. Xxxxxxxxx or such other senior executive officer
of Borrowers that is acceptable to Administrative Agent (a) stating that the
financial statements fairly present the financial condition of Borrowers as of
the date thereof and for the periods covered thereby, and (b) calculating as of
the end of such quarterly period, the Available Credit Portion, the Excess Cash
Flow, the Cumulative Affiliate Station Expenses, the Cumulative Programming
Obligations and Upfront Revenues, and (c) providing a reconciled calculation
demonstrating compliance with each financial covenant and ratio under Section
4.1 (using the form attached as Exhibit 4.2), and (d) certifying that as of the
date of such certificate there is not any existing Default or Event of Default.
4.2.3. Annual Financial Statements. Within 90 calendar days after the
close of each fiscal year, Borrowers must prepare and deliver to Administrative
Agent and each Lender a complete set of audited annual consolidated financial
statements (with accompanying notes and consolidating schedules). Such financial
statements (a) must include the types of financial statements and information
required on a quarterly basis under this Section 4.2 as well as a cash flow
statement and a reconciliation of consolidated net worth, and (b) must be
prepared in accordance with GAAP consistently applied, and (c) must be certified
without qualification by an independent certified public accounting firm
satisfactory to Administrative Agent. Together with the annual financial
statements, Administrative Agent and each Lender must also receive all related
management letters prepared by such accountants and a certificate signed by such
accountants, (a) stating that the financial statements fairly present the
consolidated financial condition of each Borrower as of the date thereof and for
the periods covered thereby, and (b)
24
providing a reconciled calculation demonstrating compliance with each financial
covenant and ratio under Section 4.1, and (c) calculating as of the end of such
fiscal year, the then current amount for the Available Credit Portion, the
Excess Cash Flow , the Cumulative Affiliate Station Expenses, the Cumulative
Programming Obligations and Upfront Revenues, and (d) certifying that as of the
date of such certificate, to the best of such accountant's knowledge, after due
inquiry, there is not any existing Default or Event of Default.
4.3. Other Financial and Specialized Reports.
4.3.1. Financial Forecasts; Operating Budgets. Within 10
Business Days after receiving, preparing, materially revising or otherwise
assembling any periodic budgets or financial forecasts, Borrowers must deliver a
complete copy thereof to Administrative Agent and each Lender. In addition,
Borrowers must prepare and deliver to Administrative Agent and each Lender a
final annual operating budget (in form and substance satisfactory to
Administrative Agent) at least 30 calendar days prior to the beginning of each
fiscal year.
4.3.2. Additional Material Contracts, Licenses and
Authorizations. Each Borrower (a) will notify Administrative Agent within 90
calendar days after executing or becoming bound by any contract, agreement,
License or other Authorization that should have been listed on Schedule 3.5A,
Schedule 3.8 or Schedule 3.9 if it had existed as of the Closing Date, and (b)
will concurrently update Schedule 3.5A, Schedule 3.8 or Schedule 3.9 (as
appropriate).
4.3.3. Tax Returns. Within 10 Business Days after the date
that any Borrower makes any filing with the Internal Revenue Service relating to
its liability for income taxes (or otherwise delivers to any equity owner of
such Borrower annual tax and capital information on Form K-1), such Borrowers
must deliver a complete copy thereof to Administrative Agent and each Lender.
4.3.4. SEC Filings and Press Releases. Within 10 Business Days
after the date that any Borrower or any organization that owns or controls at
least 50% of any class of equity interests of any Borrower makes any filing with
the Securities Exchange Commission (whether as a registration statement or a
filing on Form 8-K, Form 10-K, Form 10-Q, or otherwise) or issues any press
release, Borrowers must deliver a complete copy thereof to Administrative Agent
and each Lender.
4.4. Fiscal Year. Without the prior written consent of Administrative
Agent, which consent will not be unreasonably withheld while no Default is
occurring, each Borrower will maintain a fiscal year that has a November 30 year
end provided that Borrowers shall have given Administrative Agent not less than
30 calendar days prior written notice of such proposed change and shall have
entered into amendments to the Loan Documents to reflect such change in form and
substance acceptable to Administrative Agent.
4.5. Books and Records; Maintenance of Properties. Each Borrower will
keep and maintain satisfactory and adequate books and records of account in
accordance with GAAP.
25
Each Borrower will also keep, maintain and preserve all of its property and
assets in good order and repair (ordinary wear and tear excepted).
4.6. Existence and Good Standing. Each Borrower will preserve and
maintain (a) its existence as a corporation under the laws of its jurisdiction
of organization, and (b) its good standing in all jurisdictions where it
conducts business, and (c) the validity of all its Authorizations and Licenses
required or otherwise appropriate in the conduct of its businesses.
4.7. Deposit Accounts. Borrowers (a) will maintain commercial deposit
accounts only at federally insured depository institutions rated as "well
capitalized" by their primary federal regulator and (b) will provide
Administrative Agent with written notice of the institution's name and location
and the account name and number with respect to each such account within twenty
(20) calendar days after opening or acquiring any such account. The
institution's name and location and the account name and number for each such
account currently in existence, as well as an approximate current balance (i.e.,
a current balance at any time within the preceding thirty (30) calendar days),
are listed on Schedule 4.7.
4.8. Insurance; Disaster Contingency.
4.8.1. General Insurance Provisions. Each Borrower will keep
all of its property and assets fully covered by insurance with reputable and
financially sound insurance companies (reasonably acceptable to Administrative
Agent). Each Borrower must also maintain such protection against such hazards
and liability (including casualty, liability, fire, flood, business
interruption, earthquake, workmen's compensation, and other material risks to
its property and business), in such amounts and with such deductibles as is
customary in the relevant industry and appropriate under the relevant
circumstances (and, in each instance, as is reasonably acceptable to
Administrative Agent). If any Borrower fails or refuses to obtain or maintain
any such insurance coverage, then Administrative Agent (at its election) may
(but is not obligated to) obtain and maintain such insurance coverage on behalf
of such Borrower, and the premiums and other costs thereof (a) will be included
in the indebtedness hereunder secured by the Collateral and (b) will be due and
payable by such Borrower to Administrative Agent immediately upon demand. Each
such policy for liability insurance must name Administrative Agent as loss
payee, and each such other policy for insurance must name Administrative Agent
as loss payee and as additional insured. Each such policy must also require the
insurer to furnish Administrative Agent with written notice at least 25 calendar
days prior to any termination, cancellation or lapse of coverage and must
provide Administrative Agent with the right (but not the obligation) to cure any
non-payment of premium. Upon Administrative Agent's request, each Borrower (from
time to time) will furnish Administrative Agent with proof of such insurance (in
form and substance acceptable to Administrative Agent) and a copy of the related
policy.
4.8.2. Disaster Recovery and Contingency Program.
Upon the request of Administrative Agent, each Borrower will maintain (and
thereafter at least annually review the sufficiency of) a disaster recovery and
contingency plan that addresses each Borrower's plans for continuing operations
upon the occurrence of a natural disaster or other event that destroys or
prevents the use of or access to such Borrower's primary computer systems,
information databases, software applications, business records and operations
facility. Such contingency plan
26
at all times must be in form and substance reasonably acceptable to
Administrative Agent. After formation, upon request, each Borrower will provide
Administrative Agent with a current copy of such plan.
4.8.3. Key-Person Life Insurance. Borrowers must also maintain
key-person life insurance coverage (acceptable to Administrative Agent) that (a)
insures the life of each of (i) Xxxx X. Xxxxxx, III, for at least $3,000,000;
and (ii) Xxxx X. Xxxxxx, for at least $1,000,000; and (iii) Xxxx X. Xxxxxxxxx,
for at least $1,000,000; and (iv) Xxxxxx X. Xxxxxx, for at least $1,000,000; and
(b) is assigned to Administrative Agent as additional collateral security for
the indebtedness hereunder. At Closing and on an annual basis thereafter for so
long as such insurance is required to be maintained hereunder, Borrowers must
provide Administrative Agent (prior to the expiration of any such coverage) with
written evidence that such coverage is continued and fully paid for a period of
at least 12 months.
4.9. Loan Purpose. Borrowers will use the proceeds of each Advance
hereunder exclusively as set forth in Section 1.1.3.
4.10. Taxes. Each Borrower will pay and discharge all taxes,
assessments or other governmental charges or levies imposed on it or any of its
property or assets prior to the date upon which any penalty for non-payment or
late payment is incurred, unless (a) the same are then being contested in good
faith by appropriate proceedings diligently prosecuted, and (b) adequate
reserves therefor acceptable to Administrative Agent have been established, and
(c) Administrative Agent has been notified thereof in writing, and (d) the
consequences of such non-payment (in Administrative Agent's reasonable judgment)
will not have a Material Adverse Effect.
4.11. Management Changes. Borrowers will notify Administrative Agent in
writing within thirty (30) calendar days after any change (including any
dismissal or change in title or status) in the senior management personnel of
any Borrower.
4.12. Litigation and Administrative Proceedings. Each Borrower will
notify Administrative Agent in writing immediately upon the institution or
commencement of any litigation, legal or administrative proceeding, or labor
controversy (a) with a purported amount in controversy in excess of $50,000, or
(b) that could otherwise reasonably be expected to have or cause a Material
Adverse Effect.
4.13. Monitoring Compliance; Occurrence of Certain Events. Each
Borrower at all times will maintain (and comply with) commercially reasonable
procedures and systems designed to monitor compliance and to detect instances of
non-compliance with the Loan Documents. Each Borrower will notify Administrative
Agent in writing immediately upon (a) the occurrence of any Default or Event of
Default hereunder, or (b) the occurrence of any Default or Event of Default
under any other Loan Document, or (c) the happening of any event or the
assertion or threat of any claim that could reasonably be expected to have or
cause a Material Adverse Effect.
4.14. Compliance with Laws. Each Borrower will comply in all material
respects (a) with all material laws, rules, regulations and orders (federal,
state, local and otherwise) applicable to its business, and (b) with the
provisions and requirements of all Authorizations. Each
27
Borrower will notify Administrative Agent immediately in detail of any actual or
alleged material failure to comply with or violation of any such laws, rules,
regulations or orders, or under the terms of any of such Authorizations, or of
the occurrence or existence of any facts or circumstances that with the passage
of time, the giving of notice or otherwise could create such a failure to comply
or violation or could reasonably be expected to occasion the termination of any
of such Authorization. Such "material" laws, rules, regulations and orders shall
include, as applicable, (i) the Environmental Control Statutes and (ii) ERISA.
4.15. Further Actions.
4.15.1. Additional Collateral. Each Borrower will execute,
deliver and record (or, as appropriate, cause the execution, delivery and
recordation) at any time upon Administrative Agent's request and in form and
substance reasonably satisfactory to Administrative Agent, any of the following
instruments in favor of Administrative Agent as additional Collateral hereunder:
(a) mortgages, deeds of trust and/or assignments on or of any real or personal
property owned, leased or licensed by it, and (b) certificates of title
encumbrances against any of its titled vehicles, and (c) any other like
assignments or agreements specifically covering any of its properties or assets
(including assignments of any patents, trademarks, copyrights, databases, trade
secrets and other forms of intellectual property and deposit account control
agreements), and (d) any financing or continuation statements requested by
Administrative Agent.
4.15.2. Further Assurances. From time to time, each Borrower
will execute and deliver (or will cause to be executed and delivered) such
supplements, amendments, modifications to and/or replacements of the Loan
Documents and such further instruments as may be reasonably required to
effectuate the intention of the parties to (or to otherwise facilitate the
performance of) the Loan Documents.
4.15.3. Estoppel Certificates. Upon Administrative Agent's
request, each Borrower will execute, acknowledge and deliver (or, as
appropriate, cause the execution, acknowledgment and delivery) to such Persons
as Administrative Agent may request a statement in writing certifying as follows
(to the best of its knowledge, after diligent inquiry): (a) that the Loan
Documents (as amended, if applicable) are unmodified and in full force and
effect, and (b) that the payments under the Loan Documents required to be paid
by Borrowers have been paid, and (c) the then unpaid principal balance of
Facilities hereunder, and (d) whether or not any Default is then occurring under
any of the Loan Documents and, if so, specifying each such Default of which the
signer may have knowledge, and (e) whether or not any Borrower is then entitled
to assert any claims, defenses or causes of action that would impose any
liability upon Administrative Agent or any Lender or that would otherwise
challenge the enforceability any Loan Document or any provision thereof
(including, the existence of any so-called "Lender Liability" claims or
defenses). Unless such Borrower otherwise consents (which consent will not be
unreasonably withheld, delayed or conditioned), Administrative Agent must give
such Borrower at least ten (10) Business Days to complete and deliver any such
certificate. Each Borrower understands and agrees that any such certificate
delivered pursuant to this Section may be relied upon by Administrative Agent,
each Lender, and, if different, by the recipient thereof.
28
4.15.4. Waivers and Consents. At any time upon Administrative
Agent's request, each Borrower will use its best efforts to obtain and deliver
(in form and substance reasonably satisfactory to Administrative Agent) a waiver
or consent to the assignment to Administrative Agent of any contract, lease,
Authorization or other agreement to which it is a party.
4.15.5. Access and Audits. Administrative Agent and each
Lender (from time to time at its discretion) may conduct up to two audits of the
Collateral in any fiscal year, and of the performance and operations of any
Borrower, provided that no such limitation on the number or frequency of audits
shall apply at any time when there exists a Default or an Event of Default. Each
Borrower (upon Administrative Agent's request from time to time) will use its
best efforts to provide Administrative Agent and each Lender (and their
representatives and agents) with reasonable access to such Borrower's management
personnel, books and records, property and operations (including its financial
records), whether such property, books and records are in the possession of such
Borrower or are in the possession of a third party (including the possession of
such Borrower's Affiliates, accountants and legal counsel). In connection with
any such audit, Administrative Agent and each Lender may also make notes and
copies of (and extracts from) relevant records.
4.15.6. Attendance at Board of Directors Meetings. Any Lender
(from time to time at its discretion and at its sole cost and expense) may
attend any or all meetings of the board of directors of any Borrower (including
the meetings of any committees or sub-committees thereof). Borrowers will
provide each Lender with written notice thereof at least ten (10) Business Days
prior to each such meeting and also will provide each Lender with a copy of all
written communications, minutes and materials distributed in connection
therewith. Notwithstanding the foregoing, at the request of Borrowers,
representatives of such Lenders will temporarily leave a meeting of the board of
directors (a) if such action is necessary to preserve the Borrowers'
attorney-client privilege with respect to such meetings or the information
disseminated therein.
4.16. Costs and Expenses. Borrowers will pay or reimburse
Administrative Agent and each Lender for all fees and costs (including all
reasonable attorneys' fees and disbursements and the reasonable fees and
disbursements of in-house counsel and documentation personnel) that
Administrative Agent or any Lender may pay or incur in connection with (a) the
preparation, negotiation and review of the Loan Documents, any waivers, consents
and amendments in connection herewith or therewith and all other documentation
related hereto or thereto, and (b) the funding of the indebtedness or any
Advance hereunder, and (c) the initial and continuing perfection or protection
of Administrative Agent's or any Lender's interest in any of the Collateral, and
(d) the collection or enforcement of any of the Loan Documents, and (e) the
periodic examination and auditing of the Collateral and the books, records and
operations of Borrowers, and (f) Administrative Agent's release of its interests
in the Collateral in accordance with the terms of the Loan Documents.
Notwithstanding the foregoing, so long as an Event of Default has not occurred
and is not continuing, then Borrowers' reimbursement obligations for the fees
and costs incurred by Administrative Agent and each Lender for periodic
examination and auditing of the Collateral and the books, records and operations
of the Borrowers shall be limited to the aggregate amount of $5,000 per year.
Borrowers will pay any and all recordation taxes or other fees due upon the
filing of the financing statements or documents of similar effect required
29
to be filed under the Loan Documents, and will provide Administrative Agent with
a copy of any receipt or other evidence reflecting such payments. All
obligations provided for in this Section shall survive the termination of this
Agreement and/or the repayment of indebtedness hereunder.
4.17. Other Information. Each Borrower will provide Administrative
Agent with any other documents and information (financial or otherwise)
reasonably requested by Administrative Agent or its counsel from time to time.
4.18. Sale of Subsidiaries. NBG shall sell or otherwise dispose of (i)
NBG Solutions, Inc., no later than August 30, 2001, and (ii) NBG Travel
Exclusive, Inc. and NBG Interactive, Inc. no later than November 30, 2001.
4.19. Limitation on Activities, Assets and Liabilities of NBG. In the
event the Reorganization Proposal is approved by NBG's shareholders, then
commencing 60 calendar days after the date of the Annual Meeting and thereafter,
NBG shall not (i) engage in any activity other than owning and/or managing
Borrowers and/or the other activities authorized by this Agreement, or (ii) own,
lease or license any assets other than cash, and publicly traded investments of
investment-grade quality, and equity interests in and/or unsecured, subordinated
loans to a Borrower, or (iii) create, establish or acquire any subsidiaries
(unless such subsidiaries become (at Administrative Agent's election) secured
guarantors hereunder or Borrowers under the Credit Agreement) or (iv) have any
liabilities other than liabilities in favor of Administrative Agent or any
Lender, and subordinated liabilities pursuant to its organic documents, and
liabilities for taxes and governmental charges that are not delinquent.
4.20 Post-Closing Items. Notwithstanding anything to the contrary
contained in this Agreement or the other Loan Documents, the Borrowers shall (a)
perform the following actions, and (b) deliver the following documents,
agreements and certificates, each duly executed, in form and substance
satisfactory to Administrative Agent and, when applicable, recorded or filed in
the appropriate public office, within the time periods set forth below:
4.20.1. Holding Company Structure. (a) At NBG's July, 2002
annual meeting of shareholders (the "Annual Meeting"), NBG will cause a vote to
be held regarding a proposed reorganization to establish a holding company
structure for the purpose of holding all the property, both personal and real,
tangible and intangible of NBG (the "Reorganization Proposal") and (b) NBG shall
represent to the shareholders of NBG that the Reorganization Proposal is
supported by both NBG management and NBG's Board of Directors; and (c) NBG shall
use commercially reasonable efforts to obtain shareholder approval of the
Reorganization Proposal. Upon approval of the Reorganization Proposal, NBG shall
have sixty (60) calendar days after the Annual Meeting to fully implement the
Reorganization Proposal in form and substance acceptable to Administrative Agent
in its sole discretion.
4.20.2. Fiscal Year of Xxxxx Xxxxxx Entertainment Corporation.
No later than January 31, 2002, NBG will cause the fiscal year of Xxxxx Xxxxxx
Entertainment Corporation to end simultaneously with the fiscal year-end of NBG.
30
4.20.3. Insurance - Xxxxx Xxxxxx Entertainment Corporation.
Within 10 calendar days after the Closing Date, NBG will provide proof of
insurance of Xxxxx Xxxxxx Entertainment Corporation, with an indication of loss
payee and additional insured endorsements in favor of Administrative Agent and
each Lender with respect to all of the coverages required under Section 4.8.
Such proof of insurance must be indicated pursuant to one or more certificates
on (a) an XXXXX 27 form (3/93) for property-related insurance coverages and (b)
a modified version of an XXXXX 25-S form (3/93), in each instance permitting
reliance by Administrative Agent and requiring cancellation notification.
4.20.4. Formation of Compensation Committee.
Within 45 calendar days after the Closing Date, NBG shall form a standing
compensation committee comprised of independent third party members of NBG's
Board of Directors, which shall perform such duties that are designated by NBG,
provided that, such duties shall include, without limitation, the annual
verification of the accuracy of EBITDA as said term is defined in the employment
agreements of each of Xxxx X. Xxxxxx, III, and Xxxx X. Xxxxxx existing as of the
Closing Date, such verification to occur at the end of each fiscal year.
4.20.5. Substitution of Assignment of Life Insurance Policies.
Within 10 calendar days after the Closing Date, NBG will provide a substitute
Assignment of Life Insurance Policy as Collateral to Administrative Agent of the
key-person life insurance policy insuring the life of each of (1) Xxxx X.
Xxxxxx, III, for at least $3,000,000; (2) Xxxx X. Xxxxxx, for at least
$1,000,000; (3) Xxxx X. Xxxxxxxxx, for at least $1,000,000; and (4) Xxxxxx X.
Xxxxxx, for at least $1,000,000; which assignments (a) must identify
Administrative Agent as "MCG Finance Corporation as Administrative Agent for
itself and other Lenders", and (b) must be in form and substance acceptable to
Administrative Agent, and (c) must be executed or consented to by each
beneficiary, each insured and the relevant insurance company, and (d) must
indicate that each life insurance policy is fully paid for a period of a least
12 months beyond the Closing Date.
4.20.6. Opinions of California and Nevada Counsel. Within 15
calendar days after the Closing Date, written opinions as to such matters as
Administrative Agent may request from California and Nevada legal counsel to
Borrowers addressed to Administrative Agent and each Lender and Administrative
Agent's counsel, dated as of the Closing Date and delivered as provided herein,
an opinion as to such matters as Administrative Agent may request.
4.20.7. Stock Certificates. Within 5 Business Days after the
Closing Date, original stock certificate(s) evidencing NBG's ownership of each
of (a) NBG Solutions, Inc., (b) NBG Travel Exclusive, Inc. and (c) NBG
Interactive, Inc.
ARTICLE 5: NEGATIVE COVENANTS
Each Borrower (jointly and severally) hereby covenants and agrees that,
so long as any indebtedness remains outstanding hereunder, each Borrower will
comply with the following negative covenants (unless Required Lenders through
Administrative Agent otherwise consent in writing, which consent will not be
unreasonably withheld while no Default is occurring):
31
5.1. Capital Expenditures/Affiliate Station Expenses. Borrowers (on a
consolidated basis) will not incur Capital Expenditures in any fiscal year in
excess of $150,000. Notwithstanding the foregoing, to the extent that the
permitted Capital Expenditures exceed the actual Capital Expenditures for any
fiscal year, then the excess may be carried over and used during the immediately
succeeding fiscal year. Further notwithstanding the foregoing, no Borrower may
make any such Capital Expenditure to acquire all or any substantial portion of
the assets or equity of another business enterprise.
5.2. Additional Indebtedness. No Borrower will borrow any monies or
create, incur, assume or permit to exist any additional indebtedness,
obligations or liabilities (including monetary obligations evidenced by a
promissory note and monetary obligations under non-compete and consulting
arrangements) except as follows (collectively, the "Permitted Indebtedness"):
a. Borrowings from Lenders hereunder; and
b. Trade indebtedness, if and to the extent (i) such
indebtedness is incurred in the normal and ordinary course of business for value
received and (ii) such indebtedness (to the extent it exceeds $10,000 to any
single vendor) is paid on a current basis or is less than 60 calendar days past
due; and
c. Indebtedness and obligations incurred to purchase fixed or
capital assets, consistent with the restrictions in Section 5.1 and Section 5.5,
provided, however, that (1) the aggregate amount of such asset acquisition
indebtedness outstanding at any time (together with the aggregate amount of
Capital Lease indebtedness outstanding under Subsection 5.2.d) may not exceed
$150,000, and (2) such indebtedness must be immediately included in the
calculation of Funded Debt, and (3) such fixed or capital assets being purchased
may not constitute (a) customized application software or systems integration
software unless Borrowers have furnished Administrative Agent with an estoppel
and consent from the holder of such indebtedness in form and substance
satisfactory to the Lenders, or (b) equity interests in or substantially all of
the assets of another enterprise other than Permitted Investments, or (c) any
other asset the loss of which could reasonably be expected to have or cause a
Material Adverse Effect unless Borrowers have furnished Administrative Agent
with an estoppel and consent from the holder of such indebtedness in form and
substance satisfactory to the Lenders; and
d. Indebtedness and obligations incurred under Capital Leases,
consistent with the restrictions in Section 5.1 and Section 5.5, provided,
however, that (1) the aggregate amount of such Capital Lease indebtedness
outstanding at any time (together with the aggregate amount of asset acquisition
indebtedness outstanding under Subsection 5.2.c) may not exceed $150,000, and
(2) such indebtedness must be immediately included in the calculation of Funded
Debt, and (3) such fixed or capital assets being leased may not constitute (a)
customized application software or systems integration software unless Borrowers
have furnished Administrative Agent with an estoppel and consent from such
Lessor in form and substance satisfactory to the Lenders, or (b) any asset the
loss of which could reasonably be expected to have or cause a Material Adverse
Effect unless Borrowers have furnished Administrative Agent
32
with an estoppel and consent from such Lessor in form and substance satisfactory
to the Lenders; and
e. Indebtedness in favor of another Borrower if and to the
extent permitted under Section 5.4(b); and
f. Subordinated Indebtedness if and to the extent permitted
under Section 5.11; and
g. Such indebtedness listed on Schedule 5.2 with the prior
written consent of Lenders through Administrative Agent (which consent will not
be unreasonably withheld while no Default is occurring). Unless Lenders through
Administrative Agent otherwise expressly consent in writing (or unless otherwise
specified on Schedule 5.2), all indebtedness listed on Schedule 5.2 must be
included in the calculation of Funded Debt.
5.3. Guaranties. No Borrower will guarantee, assume or otherwise be or
agree to become liable in any way, either directly or indirectly, for any
additional indebtedness or liability of any other Person, except as follows
(collectively, the "Permitted Guaranties"): (a) in favor of Lenders or
Administrative Agent, or (b) to endorse checks, drafts and negotiable
instruments for collection in the ordinary course of business, or (c) as listed
on Schedule 5.3 with the consent of Lenders, or (d) to the extent that Lenders
through Administrative Agent otherwise consent in writing.
5.4. Loans. No Borrower will make any loans or advances to any other
Person, except as follows (collectively, the "Permitted Loans"): (a) loans to
employees that do not exceed $5,000 to any individual employee and do not at any
time in the aggregate outstanding exceed $25,000 among all such loans to all
such employees, and (b) as listed on Schedule 5.4 with the consent of Lenders
through Administrative Agent, and (c) demand loans to other Borrowers that are
appropriately reflected on each Borrower's financial records and evidenced by a
written promissory note assigned to Administrative Agent as additional
Collateral.
5.5. Liens and Encumbrances; Negative Pledge. No Borrower will create,
permit or suffer the creation or existence of any Liens on any of its property
or assets (real or personal, tangible or intangible), except as follows
(collectively, the "Permitted Liens"):
a. Liens in favor of Administrative Agent as security for the
Obligations under the Loan Documents; and
b. Liens arising in favor of sellers or lessors for
indebtedness and obligations incurred to purchase or lease fixed or capital
assets as permitted under Section 5.2.c or Section 5.2.d, provided, that (1)
such Liens secure only the indebtedness and obligations created thereunder (but
not any related monetary obligations under non-compete and consulting
arrangements) and are limited to the assets purchased or leased pursuant
thereto, and (2) such fixed or capital assets do not constitute (a) customized
application software or systems integration software, unless Borrowers have
furnished Administrative Agent with an estoppel and consent from the Seller or
Lessor in form and substance satisfactory to the Lenders; or (b) equity
interests
33
in or substantially all of the assets of another enterprise, or (c) any other
asset the loss of which could reasonably be expected to have or cause a Material
Adverse Effect unless Borrowers have furnished Administrative Agent with an
estoppel and consent from the Seller or Lessor in form and substance
satisfactory to the Lenders; and
c. Liens for taxes, assessments or other governmental charges
(federal, state or local) that are not yet delinquent or that are then being
currently contested in good faith by appropriate proceedings diligently
prosecuted, provided, however, that (1) the existence of such Liens and
challenge of such charges must have been fully disclosed to Administrative
Agent, and (2) adequate reserves therefor in accordance with GAAP must have been
established, and (3) such Liens (in Administrative Agent's reasonable opinion)
could not reasonably be expected to have or cause a Material Adverse Effect; and
d. Deposits in the ordinary course of business to secure
obligations under workmen's compensation, unemployment insurance or social
security laws or similar legislation; and
e. Deposits to secure performance or payment bonds, bids,
tenders, contracts, leases, franchises or public and statutory obligations
required in the ordinary course of business; and
f. Deposits to secure surety, appeal or custom bonds required
in the ordinary course of business; and
g. Liens of carriers, warehousemen, mechanics, materialmen and
landlords incurred in the ordinary course of business for sums not past due or
for sums being currently contested in good faith by appropriate proceedings
diligently prosecuted, provided, however, that (1) the existence of such Liens
and challenge of such sums allegedly due must have been fully disclosed to
Administrative Agent, and (2) adequate reserves therefor in accordance with GAAP
must have been established, and (3) such Liens (in Administrative Agent's
reasonable opinion) could not reasonably be expected to have or cause a Material
Adverse Effect; and
h. Easements, rights-of-way, restrictions and other similar
encumbrances on real property of a Borrower that, independently and in the
aggregate, do not (1) materially interfere with the occupation, use or enjoyment
by such Borrower of the property or assets encumbered thereby in the normal
course of business or (2) materially impair the value of the property subject
thereto; and
i. Liens listed on Schedule 5.5 with the consent of Required
Lenders through Administrative Agent (which consent will not be unreasonably
withheld while no Default is occurring).
No Borrower will similarly covenant to or in favor of any other Person that it
will not create, permit or suffer the creation or existence of any Liens on any
of its property or assets. In addition, no Borrower will purchase or otherwise
acquire any additional assets (including any leasehold interest therefor) unless
Administrative Agent's interest in such property either (a) is
34
already covered and perfected pursuant to an existing and effective UCC-1
financing statement, fixture filing, mortgage and/or leasehold mortgage (as
appropriate) in favor of Administrative Agent or (b) otherwise becomes properly
perfected within 5 calendar days after any such acquisition by such Borrower's
filing (at its expense) all necessary UCC-1 financing statements, fixture
filings, mortgages and/or leasehold mortgages (as appropriate, and in form and
substance reasonably acceptable to Administrative Agent). Moreover, no Borrower
will establish or maintain any "securities account" with any "securities
intermediary" (as such terms are defined in Article 8 of the UCC) except as
permitted under Section 5.7.
5.6. Transfer of Assets. No Borrower will sell, lease, transfer or
otherwise dispose of all or substantially all of its assets or any asset the
loss of which could reasonably be expected to have or cause a Material Adverse
Effect. In addition, no Borrower will sell, lease, transfer or otherwise dispose
of any of its assets other than as follows (collectively, the "Permitted
Transfers"): (a) pursuant to a transaction with an unrelated third party in the
normal and ordinary course of business for value received and otherwise in
accordance with the terms hereof (including Section 1.1.6.5.c and Section
4.1.7), but in an amount not to exceed $50,000 in any 12 month period, or (b)
with respect to obsolete or replaced equipment no longer useful in the operation
of any Borrower's business, pursuant to a reasonable and customary transaction
with an unrelated third party and otherwise in accordance with the terms hereof,
and (c) pursuant to a reasonable and customary transaction with another Borrower
that is appropriately reflected on each Borrower's financial records.
5.7. Acquisitions and Investments. No Borrower will purchase or
otherwise acquire (including by way of share exchange) any part or amount of the
equity ownership or assets of, or make or permit to exist any investments in,
any other corporation, partnership, limited liability company or other venture
or enterprise. Notwithstanding the foregoing, Borrowers may acquire or invest in
the following (collectively, the "Permitted Investments"):
a. Government and agency securities backed by the full faith
and credit of the U.S. federal government; and
b. Commercial paper of a U.S. domestic issuer rated A-1+ or
A-1 by Standard & Poor's Ratings Group or P-1 by Xxxxx'x Investor Services, Inc.
and maturing not more than 90 calendar days from the date of acquisition
thereof; and
c. Certificates of deposit (maturing within 12 calendar months
after the date of issuance), time deposits, other deposits and bankers'
acceptances issued by or established with U.S. federally insured commercial
banks rated as "well capitalized" by their primary federal regulators, and
having unimpaired capital and unimpaired surplus (collectively) of at least $250
million, and whose commercial paper (or commercial paper that is supported by
such bank's letter of credit or commitment to lend) is rated as A-1+ or A-1 by
Standard & Poor's Ratings Group or P-1 by Xxxxx'x Investor Services, Inc.; and
d. Assets acquired pursuant to transactions permitted under
Section 5.1 or Section 5.2; and
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e. Inventory sold in the ordinary course of business for value
received; and
f. Equity interests in other Borrowers; and
g. Investments listed on Schedule 5.7 with the consent of
Required Lenders through Administrative Agent (which consent will not be
unreasonably withheld while no Default is occurring).
No Borrower will establish or maintain any "securities account" with any
"securities intermediary" (as such terms are defined in Article 8 of the UCC),
unless a control agreement acceptable in form and substance to Administrative
Agent is first executed by such "securities intermediary" securing
Administrative Agent's first priority interest and rights in and to all
"financial assets" and "security entitlements" associated with such "securities
account."
5.8. New Ventures; Mergers. No Borrower will (a) enter into any new
business activities or ventures not directly related to its current business, or
(b) merge or consolidate with or into any other corporation, partnership,
limited liability company or other organization, or (c) create or acquire (or
cause or permit the creation or acquisition of) any Subsidiary or Affiliate
(except the hiring of officers and directors). Notwithstanding the foregoing,
Borrowers may create or acquire (or cause or permit the creation or acquisition
of) one or more wholly-owned Subsidiaries provided that (1) each such Subsidiary
(at Required Lenders' sole discretion) becomes a "Borrower," "Guarantor" and/or
"Obligor" under the Loan Documents, and (2) a first priority security interest
in and pledge of 100% of the assets and equity of each such Subsidiary is
perfected in favor of Administrative Agent as additional Collateral under the
Loan Documents (except as otherwise permitted under Section 5.5).
5.9. Transactions with Affiliates. No Borrower will enter into any
transaction or agreement with any Subsidiary, Affiliate or other related
enterprise except as follows: (a) reasonable and customary compensation
arrangements in the ordinary course of business with its officers and directors
(but, with respect to Xxxx X. Xxxxxx, III and Xxxx X. Xxxxxx, to the extent
permitted under Section 5.12), and (b) guaranties (if any) to the extent
permitted by Section 5.3, and (c) employee loans (if any) to the extent
permitted under Section 5.4, and (d) reasonable and customary asset transfers
among Borrowers (if any) to the extent permitted under Section 5.6, and (e)
reasonable dividends and distributions (if any) to the extent permitted by
Section 5.10, and (f) reasonable and customary management fees (if any) to the
extent permitted under Section 5.12, and (g) transactions in the ordinary course
of business between Borrowers.
5.10. Distributions or Dividends. No Borrower will declare or make
(directly or indirectly) any payment or distribution with respect to, or incur
any liability for the purchase, acquisition, redemption or retirement of, any of
its equity interests (including warrants therefor) or as a dividend, return of
capital or other payment or distribution of any kind to any holder of any such
equity interest. Notwithstanding the foregoing, so long as no Default then
exists under the Loan Documents or would otherwise be caused by the payment of
such dividend, then any Borrower may declare and distribute reasonable and
lawful dividends to any of its owners that are also a Borrower. Notwithstanding
the foregoing, NBG will make all payments and distributions
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to the Lenders entitled thereto required under or in connection with the Option
and Warrant Agreement, the Warrants and/or any related warrant shares.
5.11. Payment of Subordinated Indebtedness. No Borrower will incur or
make any payments on Subordinated Indebtedness except as permitted by this
Section or by a separate inter-creditor or subordination agreement executed
between such other creditor and Administrative Agent. Notwithstanding the
foregoing, if any Subordinated Indebtedness is authorized by Lenders and if any
Default occurs under the Loan Documents, then no Borrower will make any further
payments in connection with its Subordinated Indebtedness unless and until such
Default has been waived or cured to Administrative Agent's and Lenders'
satisfaction.
5.12. Payment of Management Fees and Other Compensation. No Borrower
will pay any funds or otherwise incur or accrue any liabilities for any
management or related services except (a) reasonable and customary compensation
to bona fide resident employees of such Borrower, and (b) with respect to Xxxx
X. Xxxxxx, III and Xxxx X. Xxxxxx, subject to the limits and otherwise in
accordance with the terms and provisions of the employment agreements for such
individuals as in effect on the Closing Date, and (c) as otherwise permitted by
this Section.
5.13. Issuance of Additional Equity. No Borrower other than NBG will
permit the issuance, reissuance, conversion or exercise of any equity interests
(common stock, preferred stock, partnership interests, member interests or
otherwise) or any options, warrants, convertible securities or other rights to
purchase such beneficial or equity interest. Notwithstanding the foregoing, a
Borrower may issue additional equity interests provided that: (a) such Borrower
has provided written notice thereof to Administrative Agent at least 15 Business
Days prior to such issuance (which notice must at least describe the type and
amount of equity interests being purchased, the consideration to be received by
such Borrower in exchange for such issuance, and the identity of the purchaser),
and (b) such equity interests are pledged to Administrative Agent (with a first
lien priority) as additional Collateral hereunder at the time of issuance
thereof using documentation that is in form and substance reasonably acceptable
to Administrative Agent, and (c) the proceeds thereof are utilized in a manner
in compliance with Section 1.1.6.5.c, and (d) no Default or Event of Default
then exists under the Loan Documents or would otherwise result from the issuance
of such equity interest (including a Default under the change in control
restrictions set forth in Section 7.1.8). Further notwithstanding the foregoing,
subparts (a) and (b) of this Section 5.13 shall not apply to NBG.
5.14. Removal of Assets. No Borrower will remove or permit the removal
of any asset or group of assets (with a collective fair market value exceeding
$10,000) to a jurisdiction or a county in which no financing statement on Form
UCC-1 has been filed naming Administrative Agent as "secured party" with respect
to such assets. Notwithstanding the foregoing, a Borrower may remove the
following types of assets under the following conditions: (a) temporary removal
of equipment for repair or replacement provided that Administrative Agent has
received prior written notice thereof indicating the type of equipment, its
approximate fair market value, the destination location and an estimate of the
length of time that such equipment will be removed from the relevant
jurisdiction, and (b) booths, displays, marketing materials and related
accompanying equipment of a Borrower being used temporarily in connection with
marketing such Borrower's business at trade shows or otherwise (provided that
the aggregate fair market
37
value thereof does not exceed $25,000), and (c) portable computers and related
accompanying equipment being used by the officers, employees and independent
representatives of a Borrower in connection with accomplishing such Borrower's
business activities at home offices or otherwise (provided that the aggregate
fair market value thereof does not exceed $25,000). Moreover, no Borrower will
move the location of its chief executive office (or change its official mailing
address) without providing Administrative Agent with prior written notice
thereof.
5.15. Modifications to Organic Documents. No Borrower will (a) amend or
otherwise modify any of its Organic Documents, or (b) change its official name,
its operating names or the names under which it executes contracts and conducts
business.
5.16. Terms of and Modifications to Material Relationships. No Borrower
will (and will not permit any other party to) cancel, terminate, amend, modify
or otherwise alter (a) any Subordinated Indebtedness, or (b) any agreement
regarding the provision of management services to any Borrower, or (c) any
Material Contract listed (or contract that should be listed) on Schedule 3.8. In
addition, each Borrower will use commercially reasonable efforts to ensure that
no Material Contract entered into by any Borrower after the Closing Date
(including the renewal or extension of any Material Contract existing as of the
Closing Date) will restrict any Borrower's ability to collaterally assign or
encumber such Material Contract in favor of Administrative Agent.
5.17. Margin Stock Restrictions; Other Federal Statutes. No Borrower
will use any of the proceeds hereunder, directly or indirectly, to purchase or
carry, or to reduce or retire any indebtedness that was originally incurred to
purchase or carry, any Margin Stock or for any other purpose that might
constitute the transactions contemplated hereby as a "Purpose Credit" within the
meaning of the FRB's Margin Regulations. In addition, no Borrower will engage as
its principal business in the extension of credit for purchasing or carrying
Margin Stock. No Borrower will cause or permit any Loan Document to violate any
other regulation of the FRB or the SEC or any provision of the Securities Act of
1933, the Securities Exchange Act of 1934, the Investment Company Act of 1940 or
the Small Business Investment Act of 1958, each as amended, or any rules or
regulations promulgated under any of such statutes.
5.18. Radio Station Obligations. Borrowers shall not enter into or
otherwise be a party to any contract or agreement for the purchase or exchange
of commercial advertising inventory for a term greater than 52 broadcast weeks.
ARTICLE 6: ADDITIONAL COLLATERAL AND RIGHT OF SET OFF
6.1. Additional Collateral. As additional collateral for the payment of
any and all indebtedness and obligations of each Borrower to Administrative
Agent or any Lender (whether matured or unmatured, and whether now existing or
hereafter incurred or created hereunder or otherwise), each Borrower hereby
grants Administrative Agent and each Lender a security interest in and a lien
upon all funds, balances and other property of any kind of such Borrower, or in
which such Borrower has any interest (limited to the interest of such Borrower
therein), now or hereafter in the possession, custody or control of
Administrative Agent or such Lender or any Affiliate of Administrative Agent or
such Lender.
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6.2. Right of Set-Off. Administrative Agent and each Lender are hereby
authorized at any time and from time to time during the existence of an Event of
Default hereunder (unless expressly prohibited by applicable law) to set-off and
apply any and all deposits (general or special, time or demand, provisional or
final) and other indebtedness at any time held or owing by Administrative Agent
or any Lender (or any of their Affiliates) to or for the credit or the account
of any Borrower against any and all of the indebtedness and monetary obligations
of any Borrower now or hereafter existing under the Loan Documents or any other
evidence of indebtedness originated, acquired or otherwise held by
Administrative Agent or any Lender, irrespective of whether Administrative Agent
or such Lender shall have made any demand under the Loan Documents or other
indebtedness and although such obligations may be unmatured. Administrative
Agent or such Lender agrees to notify Borrowers within a commercially reasonable
time after any such set-off and application made by Administrative Agent or such
Lender; provided, however, that the failure to give such notice shall not in any
way affect the validity of such set-off and application.
6.3. Additional Rights. The rights of Administrative Agent and each
Lender under this Article 6 are in addition to the other rights and remedies
(including other rights of set-off) that Administrative Agent and Lenders may
have by contract, at law, or otherwise.
ARTICLE 7: DEFAULT AND REMEDIES
7.1. Events of Default. Each of the following events separately
constitutes an independent Event of Default hereunder:
7.1.1. Payment Obligations. If any payment of principal,
interest, fees, expenses, indemnities or other sums payable to Administrative
Agent or any Lender under any Loan Document (including under any Note) is not
received by Administrative Agent in immediately available funds on the date such
payment is due and payable and such failure to receive payment in immediately
available funds continues for a period of five (5) Business Days after the due
date therefor.
7.1.2. Representations and Warranties. If any representation,
warranty or other statement made in any Loan Document, or in any written report,
schedule, exhibit, certificate, agreement, or other document given by or on
behalf of any Borrower or any other Obligor (or otherwise furnished in
connection herewith) when made was misleading or incorrect in any material
respect.
7.1.3. Financial Covenants. If Borrowers default in or fail to
observe at any time any of the covenants set forth in Section 4.1.
7.1.4. Other Covenants in Loan Documents. If any Borrower or
any other Obligor defaults in the full and timely performance when due of any
other covenant or agreement contained in any Loan Document (or in any other
document or agreement now or hereafter executed or delivered in connection
herewith), and such default remains uncured for a period of ten (10) Business
Days after the earlier of the date that Administrative Agent or any Lender
39
notifies any Borrower thereof or the date that any Borrower otherwise acquires
knowledge or should have acquired knowledge thereof.
7.1.5. Default Under Other Agreements with Administrative
Agent or Lenders. If any event of default (as described or defined therein,
which term shall include any notice and cure periods provided therein) occurs or
exists under the provisions of any other credit agreement, security agreement,
mortgage, deed of trust, indenture, debenture, cash management or account
agreement, contract, lease or other agreement between any Borrower, any
Affiliate of any Borrower or any other Obligor and Administrative Agent or any
Lender (or any Affiliate of Administrative Agent or any Lender), unless such
default is waived by Administrative Agent or such Lender or cured to
Administrative Agent's or such Lender's satisfaction.
7.1.6. Default Under Material Agreements with Other Parties.
(a) If any Borrower fails or refuses to make any required payment (whether
principal, interest or otherwise) with respect to any Funded Debt (or with
respect to any guaranty or reimbursement obligation of any such indebtedness)
prior to the expiration of any applicable grace period with respect to such
payment, or (b) if any such indebtedness for borrowed money is accelerated prior
to its express maturity as a result of any default thereunder, or (c) if any
event of default (as described or defined therein, which term shall include any
notice and cure periods provided therein) occurs or exists under the provisions
of any Material Contract listed on Schedule 3.8 (or a contract that should be
listed on Schedule 3.8 under the terms hereof).
7.1.7. Security Interest. If the security interest or lien in
any of the Collateral (with a fair market value exceeding collectively $25,000),
other than Collateral consisting of equity ownership interest in Borrowers or in
subsidiaries or other securities of Borrowers (for which there is no permissible
threshold for non-compliance), at any time does not constitute a legal, valid
and enforceable security interest or lien in favor of Administrative Agent.
7.1.8. Change of Control. a. If there otherwise occurs any
direct or indirect change in the ownership (i.e., any change exceeding 50% of
the voting or beneficial interest for such structure as of the Closing Date) or
in the control of NBG.
b. If NBG ceases to own and control at least 100% of
each class of voting securities of each other Borrower.
c. If any of Xxxx X. Xxxxxx, III, Xxxx X. Xxxxxx or
Xxxx X. Xxxxxxxxx ceases to hold a senior management position with active
involvement in the management and operations of each Borrower, unless (1) such
event is by reason of his or her death or disability and (2) replacement
management arrangements satisfactory to Required Lenders (in their sole and
absolute discretion) are made within 60 calendar days after such death or within
120 calendar days after the commencement of such period of disability.
7.1.9. Government Action. a. If custody or control of any
substantial part of the property of any Borrower is assumed by any governmental
agency or any court of competent jurisdiction at the instance of any
governmental agency and the loss of such property could reasonably be expected
to cause a Material Adverse Effect..
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b. If any governmental regulatory authority or
judicial body makes any other final non-appealable determination that (in
Required Lenders' reasonable judgment) could reasonably be expected to have or
cause a Material Adverse Effect.
7.1.10. Insolvency.If any Borrower (a) becomes insolvent,
bankrupt or generally fails to pay its, his or her debts as such debts become
due; or (b) is adjudicated insolvent or bankrupt in any proceeding; or (c)
admits in writing an inability to pay its, his or her debts; or (d) comes under
the authority of a custodian, receiver or trustee (or one is appointed for
substantially all of its, his or her property); or (e) makes an assignment for
the benefit of creditors; or (f) has commenced against it, him or her any
proceedings under any law related to bankruptcy, insolvency, liquidation,
dissolution or the reorganization, readjustment or release of debtors that is
either not contested or if contested is not dismissed or stayed within thirty
(30) calendar days after the commencement thereof; or (g) commences or
institutes any proceedings under any law related to bankruptcy, insolvency,
liquidation, dissolution or the reorganization, readjustment or release of
debtors; or (h) calls a meeting of creditors with a view to arranging a
composition or adjustment of debt; or (i) by any act or failure to act that
indicates consent to, approval of or acquiescence in any of the foregoing.
7.1.11. Additional Liabilities. If any judgment, writ,
warrant, attachment or execution or similar process that calls for payment or
presents liability in excess of $100,000 is rendered, issued or levied against
any Borrower or any of its properties or assets and such liability is not paid,
waived, stayed, vacated, discharged, settled, satisfied or fully bonded within
thirty (30) calendar days after it is rendered, issued or levied.
7.1.12. Material Adverse Change. If Required Lenders determine
in good faith that a Material Adverse Change has occurred with respect to any
Borrower from the condition set forth in the financial statements furnished to
Administrative Agent and each Lender for the fiscal year ended immediately prior
to the Closing Date, or from the condition of any Borrower most recently
disclosed to Administrative Agent or any Lender in any other manner.
7.2. Remedies.
7.2.1. Acceleration, Termination and Pursuit of Collateral. At
any time during the existence of any Event of Default, at the election of
Required Lenders but with notice thereof to a Borrower (unless an Event of
Default described in Section 7.1.10 has occurred, in which case acceleration
will occur automatically with respect to the entire indebtedness and without any
notice), then Lenders (a) may terminate any or all Commitments and/or
Facilities, and/or (b) may accelerate the Term Loan Maturity Date, and/or (c)
may declare all or any portion of the indebtedness of any or all Borrowers to
Lenders (hereunder or otherwise, and including all principal, interest, fees,
expenses and indemnities hereunder) to be immediately due and payable. At any
time during the existence of any Event of Default, Lenders and Administrative
Agent will also have the immediate right to enforce and realize upon any
collateral security granted under any Loan Document in any manner or order that
Required Lenders or Administrative Agent (at the direction of Required Lenders)
deems expedient without regard to any equitable principles of marshaling or
otherwise.
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7.2.2. Other Remedies. In addition to the rights and remedies
expressly granted in the Loan Documents, each Lender and Administrative Agent
also will have all other legal and equitable rights and remedies granted by or
available under all applicable law (including the "self help" and other rights
of a secured party under the UCC), and all rights and remedies will be
cumulative in nature.
ARTICLE 8: ADMINISTRATIVE AGENT AND RELATIONSHIP AMONG LENDERS
8.1. Appointment, Authorization and Grant of Authority. Each Lender
hereby irrevocably designates and appoints MCG as the Administrative Agent of
such Lender to act as specified in this Agreement and the other Loan Documents,
and each such Lender hereby irrevocably authorizes MCG (in its capacity as
Administrative Agent) to take actions on behalf of such Lender, to exercise such
powers and to perform such other duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with all such other powers and authority as are reasonably
incidental thereto. Without limiting the generality of the foregoing, the
Administrative Agent (on behalf of each Lender) is authorized (a) to execute
each Loan Document (other than this Agreement, but including, without
limitation, all financing statements, continuation statements and other
collateral agreements and documents) for and on behalf of each Lender, and (b)
to accept each Loan Document and all other agreements, documents, instruments,
certificates and opinions reasonably required to implement the intent of the
parties to this Agreement, and (c) to file and record all financing statements,
continuation statements and other collateral agreements and documents, and (d)
to receive and deliver communications and notifications to Lenders and to
Borrowers, and (e) to receive and distribute payments and Advances between
Lenders and Borrowers. The duties and responsibilities of the Administrative
Agent shall be ministerial and administrative in nature. Notwithstanding any
provision to the contrary in any Loan Document, the Administrative Agent (a)
shall not have any duties or responsibilities other than those expressly set
forth in the Loan Documents (which duties and responsibilities shall be subject
to the limitations and qualifications set forth in this Article), and (b) shall
not have any fiduciary relationship with any Lender; and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into the Loan Documents or otherwise exist against the Administrative Agent.
8.2. Acceptance of Appointment. MCG hereby accepts such appointment and
agrees to act as such Administrative Agent upon the express terms and conditions
(but subject to the limitations and qualifications) set forth in this Article.
8.3. Administrative Agent's Relationship with Borrowers. The provisions
of this Article are solely for the benefit of the Administrative Agent and
Lenders, and no Borrower shall have any rights as a third party beneficiary (or
otherwise) under this Article. In performing its functions and duties under the
Loan Documents, the Administrative Agent shall act solely as an agent of the
Lenders, and the Administrative Agent does not assume (and shall not be deemed
to have assumed) any obligation or relationship of agency or trust with or for
any Borrower.
8.4. Non-Reliance on Administrative Agent and Other Lenders. Each
Lender expressly acknowledges and agrees (a) that the Administrative Agent (and
its directors, officers, employees,
42
agents, attorneys-in-fact and Affiliates) have not made any representations or
warranties to such Lender and (b) that no act by the Administrative Agent
hereinafter taken (including, without limitation, any review of the affairs of
any Borrower or other Obligor) shall be deemed to constitute any representation
or warranty by the Administrative Agent to any Lender. Each Lender represents to
the Administrative Agent that it (independently and without any reliance upon
the Administrative Agent or any other Lender, and based upon such documents and
information as it has deemed necessary or appropriate) has made its own
appraisal, investigation and credit analysis of the business, assets,
operations, properties, financial and other condition, prospects and
creditworthiness of each Borrower and each other Obligor and has made its own
decision to make its Loans hereunder and to enter into this Agreement. Each
Lender also covenants and represents that it (independently and without any
reliance upon the Administrative Agent or any other Lender, and based upon such
documents and information as it shall deem necessary or appropriate) will
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement, and will continue to make such
investigations as it deems necessary or appropriate to inform itself as to the
business, assets, operations, properties, financial and other condition,
prospects and creditworthiness of each Borrower and each other Obligor. Except
as otherwise expressly provided in the Loan Documents, the Administrative Agent
shall not have any duty or responsibility (a) to keep any Lender informed as to
the performance or observance by any Borrower or any other Obligor of its
obligations under the Loan Documents, or (b) to inspect the books or properties
of any Borrower or any other Obligor, or (c) to provide any Lender with any
credit or other information concerning the business, operations, assets,
properties, financial and other condition, prospects or creditworthiness of any
Borrower or any other Obligor which may come into the possession of the
Administrative Agent (or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates). The Administrative Agent will make reasonable
efforts to furnish to the Lenders material information concerning Borrowers of
which the Administrative Agent has actual knowledge; however, in the absence of
gross negligence, willful misconduct or fraud, the Administrative Agent shall
not be liable to any Lender for any failure to relay or furnish to such Lender
any such information.
8.5. Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely and act (and shall be fully protected in relying and acting)
upon any note, writing, resolution, instrument, report, notice, consent,
certificate, affidavit, letter, request, electronic transmission or any other
message, statement, instruction, notice, order or other writing, conversation or
communication believed by Administrative Agent in good faith to be genuine and
correct and to have been signed, sent or made by the proper Person. The
Administrative Agent shall not be bound to ascertain or inquire as to the
satisfaction, performance or observance of any of the terms, provisions,
covenants or conditions of or the accuracy of any statements or representations
in any Loan Document by any Borrower or any other Obligor. The Administrative
Agent may deem and treat the stated payee of any Note as the holder thereof for
all purposes under the Loan Documents unless and until Administrative Agent has
received and accepted an assignment and assumption agreement relating thereto in
form and substance acceptable to the Administrative Agent.
8.6. Delegation of Duties; Additional Reliance by Administrative Agent.
The Administrative Agent may consult with, employ and perform any of its duties
under the Loan Document by or through agents, attorneys-in-fact, legal counsel,
independent public accountants
43
and other experts. The Administrative Agent shall not be responsible for the
negligence or misconduct of any such Persons selected by Administrative Agent
with reasonable care, and the Administrative Agent shall be fully protected in
any action or inaction taken by it in good faith in reliance upon or in
accordance with the advice or statements of legal counsel (including, without
limitation, counsel to Borrowers), independent accountants and other experts
selected by Administrative Agent.
8.7. Acting on Instructions of Lenders. The Administrative Agent shall
be entitled to act or refrain from acting (and shall be fully protected in
acting or refraining from acting) under the Loan Documents in accordance with a
written request of or written instructions from the Required Lenders. The
Administrative Agent shall also be entitled to refrain from acting (and shall be
fully protected in refraining from acting) under the Loan Documents unless
Administrative Agent first (a) receives such advice or concurrence of the
Required Lenders as Administrative Agent deems appropriate or (b) is indemnified
to its satisfaction by the Lenders against any and all liability and expense
which it may incur by reason of taking or continuing to take any such action.
Except as otherwise expressly stated in the Loan Documents, any requests or
instructions by the Required Lenders (and any action or inaction by
Administrative Agent pursuant thereto) shall be binding upon all the Lenders.
8.8. Actions Upon Occurrence of Default or Event of Default. Each
Lender will use its best efforts to notify the Administrative Agent immediately
in writing upon becoming aware of the occurrence of any Default or Event of
Default. The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or a Borrower referring
to this Agreement, describing such Default or Event of Default, and stating that
such notice is a "notice of default". If the Administrative Agent receives any
such notice of default, then the Administrative Agent shall use its best efforts
to give notice thereof to each Lender as soon as reasonably practical. Upon the
occurrence of any Default or Event of Default, the Lenders shall promptly
consult with one another in an attempt to agree upon a mutually acceptable
course of conduct. In the absence of unanimous agreement among the Lenders as to
the appropriate course of conduct, the Administrative Agent shall exercise
rights and take such other action on behalf of all Lenders with respect to such
Default or Event of Default as directed by the Required Lenders. Unless and
until the Administrative Agent shall have received such directions from the
Lenders (or, as applicable, the Required Lenders), the Administrative Agent may
take (but shall not be obligated to take) such action (or may refrain from
taking such action) with respect to such Default or Event of Default as
Administrative Agent shall deem advisable in the best interest of the Lenders.
8.9. Administrative Agent's Rights as Lender in Individual Capacity.
The Administrative Agent (and its Affiliates) may make loans to, may have cash
management agreements with, may accept deposits from, may issue letter of credit
on behalf of, and may otherwise generally engage (and continue to engage) in any
kind of business with any Borrower or other Obligor as though the Administrative
Agent were not the Administrative Agent under the Loan Documents. With respect
to any Loans made by Administrative Agent as a Lender hereunder and all
obligations owing to it as a Lender under the Loan Documents, the Administrative
Agent shall have the same rights, powers duties and obligations under the Loan
44
Documents as any other Lender and may exercise such rights, powers, duties and
obligations as though it were not the Administrative Agent hereunder. To the
extent that the Administrative Agent is a Lender hereunder, the terms "Lender",
"Lenders" and "Required Lenders" shall include the Administrative Agent in its
individual capacity.
8.10. Advances By Administrative Agent. Unless the Administrative Agent
has been notified in writing by a Lender prior to the Settlement Date for any
Advance or Loan that such Lender will not make the amount constituting its Pro
Rata share of such Advance or Loan available to the Administrative Agent on or
prior to such applicable Settlement Date, then the Administrative Agent may
assume (but shall not be required to assume) that such Lender will make such
amount available to the Administrative Agent in immediately available funds on
or before such Settlement Date, and in reliance upon such assumption, the
Administrative Agent may make available to Borrowers a corresponding amount on
behalf of such Lender. If the amount of such Pro Rata share is not made
available to the Administrative Agent in immediately available funds by a Lender
until after the applicable Settlement Date, then such Lender shall pay to the
Administrative Agent on demand and in immediately available funds an amount
equal to the result of the following equation (which shall be in addition to the
amount of such Lender's Pro Rata share of such Advance or Loan): the product of
(a) the average (computed for the period determined under clause (c) below) of
the weighted average interest rate for Federal Funds as determined by the
Administrative Agent during each day included in such period, multiplied by (b)
the amount of such Lender's Pro Rata share of such Advance or Loan, multiplied
by (c) a fraction (i) the numerator of which is the number of days that elapsed
from and including such Settlement Date to and including the date on which such
Lender's Pro Rata share of such Advance or Loan is actually received by the
Administrative Agent in immediately available funds and (ii) the denominator of
which is 360. A statement from the Administrative Agent submitted to any Lender
with respect to any amounts owing under this Section shall be conclusive (absent
manifest error) as to the amount owed to the Administrative Agent by such
Lender. If such Lender's Pro Rata share is not actually received by the
Administrative Agent in immediately available funds within three (3) Business
Days after the applicable Settlement Date for such Advance or Loan, then the
Administrative Agent shall be entitled to recover from such Lender, on demand,
the amount of such Pro Rata share with interest thereon for the entire such
period since such Settlement Date at the highest interest rate per annum then
applicable under the Facilities.
8.11. Payments to Lenders. Promptly after receipt in immediately
available funds from Borrowers of any payment of principal, interest or any fees
or other amounts due to any Lender under the Loan Documents, the Administrative
Agent shall distribute to each Lender that Lender's Pro Rata share of such funds
so received.
8.12. Pro-Rata Sharing of Setoff Proceeds. Any sums obtained by the
Administrative Agent or any Lender from any Borrower or other Obligor by reason
of any exercise of a right of setoff or banker's lien shall be shared Pro Rata
among Lenders. Notwithstanding the foregoing, neither the Administrative Agent
nor any Lender shall be required to so share with any other Lender collections
from any Borrower or other Obligor specifically relating to (or the proceeds of
any item of collateral that is not subject to the Loan Documents) any other
indebtedness (i.e. other than indebtedness under the Loan Documents) of such
Borrower or other Obligor to the Administrative Agent or such Lender.
45
8.13. Limitation on Liability of Administrative Agent. The
Administrative Agent (and its directors, officers, employees, agents,
attorneys-in-fact and Affiliates) shall not be liable to any Lender for any
action taken or inaction by Administrative Agent or such Person under or in
connection with any Loan Document, except to the extent of foreseeable actual
loses resulting directly and exclusively from Administrative Agent's own gross
negligence, willful misconduct or fraud. Without limiting the generality of the
foregoing, the Administrative Agent (and its directors, officers, employees,
agents, attorneys-in-fact and Affiliates) shall not be liable, responsible or
have any duty with respect to any of the following: (a) the genuineness,
execution, authorization, validity, effectiveness, enforceability,
collectability, value or sufficiency of any Loan Document, or (b) the
collectability of any amount owed by any Obligor to any Lender, or (c) the
accuracy, completeness or truthfulness of any recital, statement, representation
or warranty made to the Administrative Agent or to any Lender in connection with
any Loan Document or other certificate, affidavit, report, opinion, financial
statement, document or instrument executed or furnished pursuant to or in
connection with any Loan Document, or (d) any failure of any Person to receive
any notice or communication due such Person under any Loan Document or
applicable law, or (e) the assets, liabilities, financial condition, results of
operations, business, prospects or creditworthiness of any Borrower or any other
Obligor, or (f) ascertaining or inquiring into the satisfaction, observance or
performance of any condition, covenant or agreement in any Loan Document
(including, without limitation, the use of proceeds by any Borrower), or (g) the
inspection of any books, records or properties of any Obligor, or (h) the
existence or possible existence of any Default or Event of Default.
8.14. Indemnification. To the extent that Borrowers do not actually
reimburse, indemnify or hold harmless Administrative Agent (in accordance with
Section 10.1 hereof), then each Lender hereby agrees on a Pro Rata basis to
indemnify and hold harmless the Administrative Agent (and its directors,
officers, employees, agents, attorneys-in-fact and Affiliates) from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, reasonable expenses or disbursements of any kind
whatsoever that at any time (including, without limitation, at any time
following the payment of the Obligations of Borrowers hereunder) may be imposed
upon, incurred by or asserted against the Administrative Agent (or its
directors, officers, employees, agents, attorneys-in-fact or Affiliates) in its
capacity as such in any way relating to or arising out of any Loan Document, or
the transactions contemplated hereby or any action or inaction taken by the
Administrative Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable to the Administrative Agent (or its directors,
officers, employees, agents, attorneys-in-fact or Affiliates) for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting directly
and exclusively from the gross negligence, willful misconduct or fraud of the
Administrative Agent. If any indemnity furnished to the Administrative Agent (or
its directors, officers, employees, agents, attorneys-in-fact or Affiliates) for
any purpose (in the opinion of the Administrative Agent) shall be insufficient
or become impaired, then the Administrative Agent may require additional
indemnity and cease (or not commence) to do the acts indemnified against until
such additional indemnity is furnished to the satisfaction of the Administrative
Agent. The agreement in this Section shall survive the payment of all Advances,
Loans, fees and other Obligations of each Borrower arising hereunder.
46
8.15. Resignation; Successor Administrative Agent. The Administrative
Agent at any time may resign as the Administrative Agent under the Loan
Documents by giving the Lenders and Borrowers written notice thereof at least 10
Business Days prior to the effective date of such resignation. During such
notice period, the Required Lenders shall appoint (from among the Lenders) a
successor Administrative Agent for the Lenders, subject to the consent of each
Lender (such approval or consent, as the case may be, not to be unreasonably
withheld, delayed or conditioned) and concurrent notice to the Borrowers. Upon
acceptance of such appointment by such successor agent, (a) such successor agent
shall succeed to the rights, powers and duties of the Administrative Agent, and
(b) the term "Administrative Agent" shall include such successor agent effective
upon its appointment, and (c) the resigning Administrative Agent's rights,
powers and duties as the Administrative Agent shall be terminated, all without
any other or further act or deed on the part of such former Administrative Agent
or any of the parties to the Loan Documents. Notwithstanding the foregoing,
after the effectiveness of the resigning Administrative Agent's resignation
hereunder as the Administrative Agent, the provisions of this Article shall
continue to inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under the Loan Documents.
ARTICLE 9: DEFINITIONS AND RULES OF CONSTRUCTION
9.1. Definitions. When used in this Agreement, the following terms
shall have the respective meanings set forth below:
9.1.1. "Account" means, at any relevant time, the designated
or principal account of Borrowers at Administrative Agent for purposes of
effecting transactions hereunder.
9.1.2. "Acquisition" has the meaning set forth in Section
1.1.3.
9.1.3. "Adjusted LIBO Rate" means the rate per annum (rounded
upwards, if necessary, to the next 1/100th of 1%) determined by Administrative
Agent pursuant to the following formula:
Adjusted LIBO Rate = LIBO Rate
----------------------
1 - Reserve Percentage
For purposes of this calculation, "LIBO Rate" means the London InterBank Offered
Rate per annum (determined by Administrative Agent) two (2) Business Days prior
to the first day of any Interest Period for which the Adjusted LIBO Rate is
applicable as published by Reuters Monitor Money Rate Service and displayed on
the LIBO page as the "Libo Rate" (or, if Reuters is not available, then as
published by Bloomberg or Dow Xxxxx-Telerate and displayed on page 3750 as the
BBA LIBOR) (or, in any such instance, as published by such other service or
displayed on such other page as may replace such service or page for the purpose
of displaying rates or prices comparable to the designated rate) for the
offering of dollar deposits by leading banks in the London interbank market for
a period of approximately 3 months and in an amount approximately equal to the
amount outstanding hereunder to which such LIBO Rate will be applicable. If more
than one such rate is displayed on such page or its replacement, then the LIBO
Rate will be the
47
arithmetic mean of such displayed rates. If the first day of
the applicable Interest Period is not a Business Day, then the applicable LIBO
Rate will be the rate in effect on the immediately preceding Business Day. For
purposes of this calculation, "Reserve Percentage" means that percentage
(expressed as a decimal) prescribed by the FRB (or any other governmental or
administrative agency or funding source to which Administrative Agent is
subject) for determining the reserve requirements (including any basic,
supplemental, marginal or emergency reserves) for deposits of U.S. Dollars with
maturities of comparable duration in a non-U.S. or an international banking
office.
9.1.4. "Administrative Agent" means MCG Finance Corporation or
any successor, assignee, pledgee or other transferee thereof.
9.1.5. "Advance" means any advance of funds under any
Facility.
9.1.6. "Advance Request" has the meaning set forth in Section
1.4.1.
9.1.7. "Affiliate" of any Person or entity means (a) any
Person directly or indirectly owning, controlling or holding 5% or more of the
outstanding beneficial interest in such person or entity, or (b) any Person as
to which such other Person or entity directly or indirectly owns, controls or
holds 5% or more of the outstanding beneficial interest, or (c) any Person
directly or indirectly controlling, controlled by, or under common control with
such other person or entity, or (d) any officer, director, partner or member of
such Person, but such term with respect to Borrowers does not include
Administrative Agent or any Lender. Notwithstanding the foregoing, neither
Administrative Agent nor any Lender shall be deemed to be an Affiliate of any
Obligor.
9.1.8. "Affiliate Station Expenses" means the sum of the
following items for Borrowers: --------------------------
(a) expenditures for the direct or indirect purchase of
advertising inventory, (including, by way of example and not
limitation, expenditures arising from the purchase of Captive Audience,
Fusion, Mix Net, Captive II, Diversity, United, Variety II, 2001 Net,
NMB, Net 90); and
(b) Plus the cost of products or services (including, by way
of example and not limitation, payments to the creator(s) of daily
entertainment or news briefs such as the Complete Sheet or Dr. Don
Prep) that are purchased by Borrowers and then exchanged for
advertising inventory,
in each case in manner consistent with Borrowers' historical accounting
practices.
9.1.9. "Agreement" means this Credit Facility Agreement and
all the exhibits and schedules hereto, all as may be amended and otherwise
modified from time to time hereafter.
9.1.10. "Annual Meeting" has the meaning set forth in Section
4.20.1.
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9.1.11. "Authorization" means any License or other
governmental permit, certificate and/or approval issued by any Official Body.
9.1.12. "Authorized Officer" means any officer, employee or
representative of such organization who is expressly designated as such or is
otherwise authorized to borrow funds hereunder or, as appropriate, to sign loan
documents and/or deliver certificates on behalf of such organization pursuant to
the provisions of such organization's most recent resolution on file with
Administrative Agent.
9.1.13. "Available Credit Portion" means that portion of the
Term Loan Commitment that is generally available in the ordinary course for
borrowing at any time under the Term Loan Facility, as such amount is determined
in accordance with Section 1.3.
9.1.14. "Borrower" means, individually and collectively, the
following:
a. NBG Radio Network, Inc., a Nevada corporation,
having its principal and chief executive office at the address specified in the
Notice Section hereof, or any successor or authorized assignee thereof, and
b. Xxxxx Xxxxxx Entertainment Corporation, a
California corporation having its principal and chief executive office located
within the State of California, and
c. Any other entity subsequently added hereto as a
Borrower hereunder, or any successor or authorized assignee thereof.
9.1.15. "Business Day" means any day that is not a Saturday, a
Sunday or a day on which banks under the laws of the Commonwealth of Virginia
(or, with respect to certain LIBO Rate matters, banks in London, England) are
authorized or required to be closed.
9.1.16. "Capital Expenditures" means expenditures (a) for any
fixed assets or improvements, replacements, substitutions or additions thereto
that have a useful life of more than one (1) year, including direct or indirect
acquisition of such assets or (b) for any Capital Leases.
9.1.17. "Capital Leases" means capital leases and subleases as
defined in the Financial Accounting Standards Board Statement of Financial
Accounting Standards No. 13 dated November 1976 (as amended and updated from
time to time).
9.1.18. "Cash Flow Leverage Ratio" means, at any time such
ratio is being computed, the ratio of "Funded Debt" to "OCF" (for the
immediately preceding four fiscal quarters).
9.1.19. "Closing Date" means the date on which all conditions
precedent to the effectiveness of this Agreement under Section 2.1 have been
satisfied or waived by Lenders.
9.1.20. "Code" means the Internal Revenue Code of 1986, as
amended.
49
9.1.21. "Collateral" means the collateral security committed
to Administrative Agent under the Collateral Security Documents executed by any
Borrower or any other Obligor in favor of Administrative Agent pursuant to this
Agreement from time to time and/or pursuant to all similar or related documents
and agreements from time to time, all as amended from time to time.
9.1.22. "Collateral Security Documents" means, individually
and collectively, (a) the Security Agreements and the financing statements filed
pursuant thereto, and (b) the Pledge and Security Agreements, and (c) any
additional documents guaranteeing indebtedness, assuring performance of
obligations, subordinating indebtedness, or granting security or Collateral to
Administrative Agent hereunder, all as amended from time to time.
9.1.23. "Commitment" means any commitment for credit pursuant
to a Facility established hereunder.
9.1.24. "Commitment Percentage" means, with respect to each
Lender, that portion of the total Commitments as to which such Lender is
obligated.
9.1.25. "Cumulative Affiliate Station Expenses" means, at the
time of any determination, Affiliate Station Expenses from December 1 of any
given fiscal year to the relevant fiscal quarter ending during such fiscal year.
9.1.26. "Cumulative Programming Obligations" means, at the
time of any determination, Programming Obligations from December 1 of any given
fiscal year to the relevant fiscal quarter ending during such fiscal year.
9.1.27. "Current Interest" means accrued interest resulting
from the application of the Current Interest Rate to the outstanding balance
hereof.
9.1.28. "Current Interest Rate" means the applicable Rate
Index plus the Current Interest Rate Margin.
9.1.29. "Current Interest Rate Margin" has the meaning set
forth in Section 1.1.5.5.
9.1.30. "Default" means any Event of Default or any event or
circumstance that with the giving of notice or the passage of time would
constitute an Event of Default.
9.1.31. "Deferred Interest" means accrued interest resulting
from the application of the Deferred Interest Rate Margin to the outstanding
balance hereof and all interest thereon.
9.1.32. "Deferred Interest Rate Margin" has the meaning set
forth in Section 1.1.5.4.
9.1.33. "Dollar" or "$" means U.S. dollars.
50
9.1.34. "EBITDA" means, at the time of any determination, the
sum of the following items for Borrowers during the relevant four consecutive
fiscal quarter period:
a. Net income from continuing operations (on a
consolidated basis) during such period -- i.e., subtracting extraordinary gains
and income items and the cumulative effect of accounting changes (and after
accounting for Tax Distributions) and income associated with transactions with
Affiliates and transactions for which payment is received in a form other than
cash or cash equivalents -- determined in accordance with GAAP, and
b. Plus Interest Expense during such period, but
subtract interest income accrued during such period, and
c. Plus federal and state income taxes paid or
required to be paid in accordance with GAAP during such period, and ---
d. Plus depreciation permitted under GAAP during such
period, and
e. Plus amortization expense permitted under GAAP
during such period.
For purposes of this calculation, interest shall include interest accrued under
Capital Leases, determined in accordance with GAAP.
9.1.35. "Environmental Control Statutes" means all federal,
state and local laws, rules, ordinances and regulations (as implemented and as
interpreted) governing the control, removal, storage, transportation, spill,
release or discharge of hazardous or toxic wastes, substances and petroleum
products, including as provided in the provisions of (a) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by
the Superfund Amendment and Reauthorization Act of 1986, and (b) the Solid Waste
Disposal Act, and (c) the Clean Water Act, and (d) the Clean Air Act, and (e)
the Hazardous Materials Transportation Act, and (f) the Resource Conservation
and Recovery Act of 1976, and (g) the Federal Water Pollution Control Act
Amendments of 1972, and (h) the rules, regulations and ordinances of the EPA,
and any departments of health services, regional water quality control boards,
state water resources control boards, and/or cities in which any of such
Borrower's assets are located.
9.1.36. "EPA" means the United States Environmental Protection
Agency or any other entity that succeeds to its responsibilities and powers.
9.1.37. "ERISA" means the Employee Retirement Income Security
Act of 1974, as amended, and as implemented and interpreted.
9.1.38. "Event of Default" means each of the events described
in Section 7.1.
9.1.39. "Excess Cash Flow" means, at the time of any
determination, the sum of the following items (without duplication) for
Borrowers during the immediately preceding four (4) quarter period:
51
a. OCF for such period, and
b. Minus Total Charges for such Period, and
c. Minus the difference determined by the following
calculation: (1) Working Capital for such period
minus (2) Working Capital for the four (4) quarter
period ending one year earlier.
9.1.40. "Facility" means any credit facility established under
Article 1.
9.1.41. "Fixed Charges" means, at the time of any
determination, the sum of the following items (without duplication) for
Borrowers during the relevant four consecutive fiscal quarter period:
a. The amount of mandatory scheduled reductions in
the Term Loan Commitment during such period and the
amount of principal otherwise required to be paid
under this Agreement during such period, and
b. Plus the amount of principal paid or required to
be paid and mandatory commitment reductions on other
Funded Debt (i.e., Funded Debt other than under this
Agreement) during such period, and
c. Plus Interest Expense during such period, and
d. Plus the amount of cash Capital Expenditures
during such period.
For purposes of this calculation, interest includes interest accrued under
Capital Leases, and principal includes principal obligations under Capital
Leases.
9.1.42. "FRB" means the Board of Governors of the Federal
Reserve System or any other entity or agency that succeeds to its
responsibilities and powers.
9.1.43. "Funded Debt" means, at the time of any determination,
the aggregate principal amount of indebtedness of all Borrowers (on a
consolidated basis) for the following (without duplication):
a. Borrowed money (including the indebtedness under
the Loan Documents, but not including trade
indebtedness permitted under Section 5.2.b); and
b. accrued Deferred Interest; and
c. Capital Leases; and
d. Subordinated Indebtedness; and
e. Deferred purchase price or installment purchases
of real property, personal property, and/or services
(including any deferred purchase
52
price and/or non-compete obligations in connection
with acquisitions); and
f. Reimbursement obligations under letters of credit
(whether standby or documentary); and
g. Obligations under interest rate protection or swap
arrangements, repurchase arrangements and other
derivative transactions; and
h. Any indebtedness or contractual payment obligation
that is not paid within 60 calendar days of the due
date therefor; and
i. Any indebtedness evidenced by a promissory note;
and
j. Any obligation secured by a Lien on any asset of
any Borrower; and
k. Guaranties of indebtedness and obligations that
would constitute Funded Debt hereunder if the primary
obligor thereof were a Borrower; and
l. Indebtedness otherwise required to be included as
part of "Funded Debt" under Section 5.2.
9.1.44. "GAAP" means generally accepted accounting principles
applied on a consistent basis set forth in the Opinions of the Accounting
Principles Board of the American Institute of Certified Public Accountants
and/or in statements of the Financial Accounting Standards Board and/or in such
other statements by such other entity as Administrative Agent may reasonably
approve, which are applicable in the circumstances as of the date in question,
and the requirement that such principles be applied on a consistent basis shall
mean that the accounting principles observed in a current period are comparable
in all material respects to those applied in preceding periods.
9.1.45. "Hazardous Materials" includes (a) any "hazardous
waste" as defined by the Resource Conservation and Recovery Act of 1976 (42
U.S.C. ss. 6901 et seq.), as amended from time to time, and regulations
promulgated thereunder; or (b) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42
U.S.C. ss. 9601 et seq.), as amended from time to time, and regulations
promulgated thereunder; or (c) any other substance the use or presence of which
on, in, under or above any real property ever owned, controlled or used by
Borrower is similarly regulated or prohibited by any federal, state or local
law, rule, ordinance, regulation or decree of any court or governmental
authority as a hazardous material.
9.1.46. "Interest Coverage Ratio"means, at any time such ratio
is being computed, the ratio of "OCF" (for the immediately preceding four fiscal
quarters) to "Interest Expense".
53
9.1.47. "Interest Expense" means, at the time of any
determination, the amount of interest and other finance charges of Borrowers (on
a consolidated basis) required to be charged as an expense under GAAP during the
immediately preceding four consecutive fiscal quarter period (including the fees
under Section 1.7 and any other such charges with respect to any Funded Debt,
but excluding accrued Deferred Interest). For purposes of this calculation,
interest includes interest accrued under Capital Leases. Notwithstanding the
foregoing, the amount of Interest Expense for purposes of retrospective
calculations during the first three quarterly reporting periods after the
Closing Date will be determined by annualizing the aggregate amount of such
re-occurring charges for the period beginning on the Closing Date and ending on
the last day of the fiscal quarter for which the calculation is being performed.
9.1.48. "Interest Period" means (a) with respect to the Prime
Rate, a period of one (1) Business Day, and (b) with respect to the Adjusted
LIBO Rate, a period of 3 months duration commencing initially on the date of the
relevant Advance and ending 3 months thereafter and (after such initial Interest
Period) commencing on the day immediately following the last day of the
preceding Interest Period and ending on the corresponding day 3 months
thereafter.
9.1.49. "Lender" means, individually and collectively, the
following:
a. MCG Finance Corporation or any successor,
assignee, participant, pledgee or other transferee of
such Lender hereunder, and
b. Any other entity subsequently added hereto as a
Lender hereunder, or any successor, assignee,
participant or other transferee thereof.
9.1.50. "Leverage Ratio" has the same meaning as "Cash Flow
Leverage Ratio".
9.1.51. "LIBO Rate" has the same meaning as "Adjusted LIBO
Rate".
9.1.52. "License" means any authorization, construction or
other permit, consent, franchise, ordinance, registration, certificate, license,
call sign, frequency designation, agreement or other right filed with, granted
by, issued by or entered into with any Official Body.
9.1.53. "Lien" means any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
otherwise), reversionary or reclamation interest, charge against or interest in
property to secure payment of a debt or performance of an obligation or other
priority or preferential arrangement of any kind or nature whatsoever.
9.1.54. "Loan" means any loan or Advance of funds under any
Facility as well as any other credit extended by Administrative Agent or any
Lender to any Borrower under this Agreement.
9.1.55. "Loan Documents" means this Agreement, any Notes, the
Collateral Security Documents and any other documents, agreements and
certificates entered into or delivered in connection herewith or therewith or
pursuant hereto or thereto, all as may be amended, modified and supplemented
from time to time.
54
9.1.56. "Local Authorities" means, individually and
collectively, the state and local governmental authorities that govern the
activities of any Borrower.
9.1.57. "Margin Regulation" has the meaning set forth in
Section 3.17.
9.1.58. "Margin Stock" has the meaning set forth in Section
3.17.
9.1.59. "Material Adverse Change" means any change that has or
causes or could reasonably be expected to have or cause a Material Adverse
Effect.
9.1.60. "Material Adverse Effect" means, relative to any
occurrence of whatever nature (including any adverse determination in any
litigation, arbitration, or governmental investigation or proceeding), a
material adverse change to, or, as the case may be, a materially adverse effect
on:
a. The business, assets, revenues, financial
condition, operations, Collateral or prospects of NBG individually or the
Borrowers taken as a whole; or
b. The ability of NBG individually or the Borrowers
taken as a whole, to perform any of its payment obligations when due or to
perform any other material obligations under any Loan Document; or
c. Any right, remedy or benefit of Administrative
Agent or any Lender under any Loan Document.
9.1.61. "Material Contract" has the meaning set forth in
Section 3.8.
9.1.62. "MCG" means MCG Finance Corporation, a Delaware
corporation, or any successor or assignee thereof, having an office at the
address specified in the Notice Section hereof, and which is Administrative
Agent and a Lender hereunder at the time of execution hereof.
9.1.63. "Notes" means, individually and collectively, each
promissory note delivered to each Lender pursuant to any Loan Document and
evidencing any indebtedness to such Lender under the Loan Documents (each as may
be amended, modified, supplemented, restated, extended, renewed or replaced from
time to time).
9.1.64. "Obligations" means all of the indebtedness and
obligations (monetary or otherwise) of any Borrower and any other Obligor
arising under or in connection with any Loan Document as well as all
indebtedness and obligations (monetary or otherwise) of any Borrowers or Obligor
or any Affiliate of any Borrower or other Obligor arising under or in connection
with any agreement between any such Affiliate and Administrative Agent or any
Lender (or any Affiliate of Administrative Agent or any Lender).
9.1.65. "Obligor" means each Borrower or any other Person
(other than Administrative Agent and Lenders) obligated under any Loan Document.
55
9.1.66. "OCF" (or "Operating Cash Flow") means, at the time of any
determination, the sum of the following items (without duplication) for
Borrowers during the relevant four consecutive fiscal quarter period:
a. EBITDA during such period, and
b. Plus reasonable non-recurring acquisition expenses
approved by Administrative Agent during such period
(to the extent not already accounted for in EBITDA),
and
c. With respect to Programming Obligations, plus
non-cash programming expenses included in the cost of
good sold during such period (to the extent not
already accounted for in EBITDA), but subtract cash
payments actually made on such Programming
Obligations during such period (to the extent not
already accounted for in EBITDA), and
d. With respect to barter transactions, plus the
amount of barter-related expenses recognized during
such period (to the extent not already accounted for
in EBITDA), but subtract the amount of barter-related
revenue recognized during such period (to the extent
not already accounted for in EBITDA),
all determined in accordance with GAAP. Notwithstanding the foregoing, with
respect to time periods on and prior to the Closing Date, OCF of Borrowers shall
be deemed to include the sum of (1) OCF of Xxxxxx Entertainment Corporation for
such periods minus (2) the pro rata portion of the $200,000 annual compensation
paid by NBG to Xxxxxx Entertainment Corporation during such periods.
9.1.67. "Official Body" means any federal, state, local, or
other government (or any political subdivision, agency, authority, bureau,
commission, department or instrumentality thereof) and any court, tribunal,
grand jury or arbitrator, in each instance whether foreign or domestic.
9.1.68. "Operating Agreement" means any consulting agreement,
management agreement, employment agreement, cost allocation agreement, or other
similar agreement relating to the operations of any Borrower.
9.1.69. "Option" has the meaning set forth in Section 1.7.
9.1.70. "Option And Warrant Agreement" means that certain
Option And Warrant Agreement between NBG and MCG dated as of the date hereof, as
amended from time to time.
9.1.71. "Organic Document" means, relative to any entity, its
certificate and articles of incorporation or organization, its by-laws or
operating agreements, and all equityholder agreements, voting agreements and
similar arrangements applicable to any of its authorized shares of capital
stock, its partnership interests or its member interests, and any other
arrangements
56
relating to the control or management of any such entity (whether existing as a
corporation, a partnership, an LLC or otherwise).
9.1.72. "Permitted Guaranties" has the meaning set forth in
Section 5.3.
9.1.73. "Permitted Indebtedness" has the meaning set forth in
Section 5.2.
9.1.74. "Permitted Investments" has the meaning set forth in
Section 5.7.
9.1.75. "Permitted Liens" has the meaning set forth in Section
5.5.
9.1.76. "Permitted Loans" has the meaning set forth in Section
5.4.
9.1.77. "Permitted Transfers" has the meaning set forth in
Section 5.6.
9.1.78. "Person" means any natural person, corporation, LLC,
partnership, firm, association, trust, government, governmental agency or any
other entity, whether acting in an individual, fiduciary or other capacity.
9.1.79. "Plan" means any pension benefit or welfare benefit
plan as defined in Sections 3(1), (2) or (3) of ERISA covering employees of any
Borrower or any ERISA Affiliate of any Borrower.
9.1.80. "Pledge and Security Agreements" means, individually
and collectively, each pledge and security agreement relating to a pledge of an
equity interest in an enterprise (all as may be amended, modified and
supplemented from time to time) required to be executed and delivered in favor
of Administrative Agent pursuant to the Loan Documents.
9.1.81. "Portion" means a designated portion of the
indebtedness hereunder as to which a specified Rate Index (and a corresponding
Rate Margin) has been selected or deemed to be applicable.
9.1.82. "Prime Rate" means a variable rate of interest per
annum equal to the rate of interest from time to time published by the Board of
Governors of the Federal Reserve System in Federal Reserve statistical release
H.15 (519) entitled "Selected Interest Rates" as the Bank prime loan rate. The
Prime Rate also includes rates published in any successor publications of the
Federal Reserve System reporting the Bank prime loan rate or its equivalent. In
the event that the Board of Governors of the Federal Reserve System ceases to
publish a Bank prime loan rate or equivalent, the term "Prime Rate" shall mean a
variable rate of interest per annum equal to the highest of the "prime rate,"
"reference rate," "base rate" or other similar rate as determined by
Administrative Agent announced from time to time by any of First Union National
Bank, NationsBank, the Chase Manhattan Bank or Citibank, N.A. Such term,
however, does not necessarily mean Administrative Agent's best or lowest rate
available.
9.1.83. "Programming Obligation" means, at the time of any
determination, the sum of
57
a. Guaranteed payment obligations of Borrowers under
each Programming Contract that is subject to a license agreement between one or
more Borrowers, on the one hand, and a third party licensor, on the other hand;
and
b. Plus guaranteed payment obligations of one or more
Borrowers under each Programming Contract that is developed by such Borrower or
Borrowers.
9.1.84. "Programming Contract" means all contracts for the
creation, production, license and/or distribution of radio programs.
9.1.85. "Pro Rata" means from or to each Lender in proportion
to its Commitment Percentage.
9.1.86. "Rate Index" has the meaning set forth in Section
1.1.5.
9.1.87. "Rate Margin" means the applicable Current Interest
Rate Margin and the applicable Deferred Interest Rate Margin.
9.1.88. "Reorganization Proposal" has the meaning set forth in
Section 4.19.
9.1.89. "Reserve Percentage" has the meaning set forth in the
definition of "Adjusted LIBO Rate".
9.1.90. "Revenue" means revenue of Borrowers (on a
consolidated basis) as determined in accordance with GAAP.
9.1.91. "Required Lender" means Lenders holding at least 66%
of the aggregate outstanding principal amount of the Loans (or, if no Loans at
the time of such determination are outstanding, then Lenders obligated with
respect to at least 66% of the Commitments).
9.1.92. "Reserve Percentage" has the meaning set forth in the
definition of "Adjusted LIBO Rate".
9.1.93. "SEC" means the Securities and Exchange Commission or
any other entity that succeeds to its responsibilities and powers.
9.1.94. "Securities Acts" means, collectively, the Securities
Act of 1933 and the Securities Exchange Act of 1934, each as amended, and as
implemented by the SEC and interpreted by the SEC or any court of competent
jurisdiction.
9.1.95 "Security Agreements" means, collectively, each
security agreement (as may be amended, modified and supplemented from time to
time) required to be executed and delivered in favor of Lender pursuant to
Article 2, and any other security agreement required or delivered in connection
with the Loan Documents, including any intellectual property assignments or
security agreements required to be delivered pursuant to Article 2.
58
9.1.96 "Settlement Date" means, with respect to any Advance
hereunder, the date on which funds are advanced by Lender.
9.1.97 "Subordinated Indebtedness" means all indebtedness and
monetary obligations of any Borrower (other than indebtedness in favor of Lender
or indebtedness and obligations expressly excluded therefrom by Lender),
including all indebtedness treated or defined as "Subordinated Indebtedness"
under any separate Subordination Agreement by and among a Borrower,
Administrative Agent and another Person. Notwithstanding the foregoing, the term
"Subordinated Indebtedness" (unless Lender otherwise requires) does not include
indebtedness permitted under Section 5.2.a or 5.2.b or (to the extent consistent
with Section 5.5.b) under Section 5.2.c or 5.2.d.
9.1.98. "Subsidiary" of any Person or entity means any Person
as to which such other Person or entity (a) directly or indirectly owns,
controls or holds 25% or more of the outstanding beneficial interest or (b) is
otherwise required in accordance with GAAP to be considered as part of a
consolidated organization.
9.1.99. "Term Loan Commitment" means, the Commitment
established pursuant to Section 1.1 and Section 1.3.
9.1.100. "Term Loan Commitment Percentage" means, with respect
to each Lender, that portion of the total Term Loan Commitment as to which such
Lender is obligated.
9.1.101 "Term Loan Facility" means the term loan Facility as
described in Article 1.
9.1.102. "Term Loan Maturity Date" has the meaning set forth
in Section 1.1.2, as may be extended from time to time in Lender's sole and
absolute discretion.
9.1.103. "Term Loan Note" means any Note payable to the order of Lender
prepared in accordance with Section 1.1.4, as may be amended, modified,
restated, replaced, supplemented, extended or renewed from time to time
hereafter.
9.1.104. "Total Charges" means, at the time of any determination, the
sum of the following items (without duplication) for Borrowers during the
immediately preceding four consecutive fiscal quarter period:
a. The amount of Fixed Charges during such period,
and
b. Plus the amount of all federal, state and other
taxes based upon income of Borrowers paid during such
period (but only to the extent not already included
under one of the other categories of Total Charges).
For purposes of this calculation, interest includes interest accrued under
Capital Leases, and principal includes principal obligations under Capital
Leases.
59
9.1.105. "Total Charge Coverage Ratio" means, at any time such
ratio is being computed, the ratio of "OCF" (for the immediately preceding four
fiscal quarters) to "Total Charges" (for the immediately preceding four fiscal
quarters).
9.1.106. "UCC" means the Uniform Commercial Code as in effect
in the applicable jurisdiction.
9.1.107. "Upfront Revenues" means, for any fiscal year, the
amount of negotiated and booked advertising and held revenues for such fiscal
year documented in a manner acceptable to Administrative Agent in its sole
discretion (which documentation shall include at a minimum, (1) name of
advertiser, (2) amount of revenue, (3) advertising agency, if applicable, and
(3) buy sheets), and reported to Administrative Agent on or before 30 days after
the commencement of such fiscal year.
9.1.108. "Warrants" has the meaning set forth in Section 1.7.
9.1.109. "Working Capital" means, for any period, the sum of
the following items for Borrowers (without duplication) (each as determined in
accordance with GAAP):
a. Current accounts receivable during such period;
b. Minus the sum of (i) current accounts payable during such
period, plus (ii) accrued liabilities during such period.
9.2. Rules of Interpretation and Construction.
9.2.1. Plural; Gender. Unless otherwise expressly stated or
the context clearly indicates a different intention, then (as may be appropriate
in the particular context) (a) a singular number or noun used in any Loan
Document includes the plural, and a plural number or noun includes the singular,
and (b) the use of the masculine, feminine or neuter gender pronouns in any Loan
Document includes each and all genders.
9.2.2. Section and Schedule References. Unless otherwise
expressly stated or the context clearly indicates a different intention, then
all references to sections, paragraphs, clauses, schedules and exhibits in any
Loan Document are to be interpreted as references to sections, paragraphs,
clauses, schedules and exhibits of such Loan Document (rather than of some other
Loan Document). In addition, the words "herein", "hereof", "hereunder", "hereto"
and other words of similar import in any Loan Document refer to such Loan
Document as a whole, and not to any particular section, paragraph or clause in
such Loan Document.
9.2.3. Titles and Headings. Unless otherwise expressly stated
or the context clearly indicates a different intention, then the various titles
and headings in the Loan Documents are inserted for convenience only and do not
affect the meaning or interpretation of such Loan Document or any provision
thereof.
9.2.4. "Including" and "Among Other" References. Unless
otherwise expressly stated or the context clearly indicates a different
intention, then all references in the Loan
60
Documents to phrases containing or list preceded by the words "include",
"includes", "including", "among other", "among other things" or other words or
phrases of similar import are to be interpreted to mean such "without
limitation" (whether or not such additional phrase is actually added). In other
words, such words and phrases connote an illustrative example or list rather
than an exclusive example or list.
9.2.5. Time of Day References. Unless otherwise expressly
stated or the context clearly indicates a different intention, then all time of
day references in and restrictions imposed under the Loan Documents are to be
calculated using Eastern Time.
9.2.6. "Knowledge" of a Person. Unless otherwise expressly
stated or the context clearly indicates a different intention, then (a) all
references to the "knowledge," "awareness" or "belief" of any Person that is not
a natural person are to be interpreted to mean the knowledge, awareness or
belief of senior and executive management of such Person (and including the
knowledge or awareness of managers of limited liability companies and general
partners of partnerships), and (b) all representations qualified by the
"knowledge," "awareness" or "belief" of a Person are to be interpreted to mean
(unless a different standard is specified) that such Person has conducted a
commercially reasonable inquiry and investigation prior to making such
representation.
9.2.7. Successors and Assigns. Unless otherwise expressly
stated or the context clearly indicates a different intention, then all
references to any Person (including any Official Body) in any Loan Document are
to be interpreted as including (as applicable) such Person's successors,
assigns, estate, heirs, executors, administrators and personal representatives.
Notwithstanding the foregoing, no Borrower or other Obligor may assign or
delegate any Loan Document (or any right or obligation thereunder) except to the
extent expressly permitted hereunder or under such other Loan Document.
9.2.8. Modifications to Documents. Unless otherwise expressly
stated or the context clearly indicates a different intention, then all
references to any Loan Document or other agreement or instrument in any Loan
Document are to be interpreted as including all extensions, renewals,
amendments, supplements, substitutions, replacements and waivers thereto and
thereof from time to time.
9.2.9. References to Laws and Regulations. Unless otherwise
expressly stated or the context clearly indicates a different intention, then
all references to any law, regulation, rule, order or policy in any Loan
Document are to be interpreted references to such law, regulation, rule or
policy (a) as implemented and interpreted from time to time by Official Bodies
with appropriate jurisdiction therefor, and (b) as amended, modified,
supplemented, replaced and repealed from time to time.
9.2.10. Financial and Accounting Terms. Unless otherwise
expressly stated or the context clearly indicates a different intention,
financial and accounting terms used in the foregoing definitions or elsewhere in
the Loan Documents shall be defined and determined in accordance with GAAP.
61
9.2.11. Conflicts Among Loan Documents. Unless otherwise
expressly stated or the context clearly indicates a different intention, then
any irreconcilable conflict between the terms and conditions of this Agreement
and the terms and conditions of any other Loan Document (other than a Note or
any warrant issued to any Lender) are to be resolved by having the terms and
conditions of this Agreement govern.
9.2.12. Independence of Covenants and Defaults. All covenants
and defaults contained in the Loan Documents shall be given independent effect.
If a particular action or condition is not permitted by any covenant in the Loan
Documents, then the fact that such action or condition would be permitted by an
exception to (or would otherwise be within the limitations of) another covenant
in the Loan Documents shall not avoid the occurrence or existence of a Default
if such action is taken or if such condition exists.
9.2.13. Administrative Agent. References in this Agreement and
the other Loan Documents to Administrative Agent shall mean either to
Administrative Agent in such capacity or (where appropriate) to Administrative
Agent for the benefit of Lenders. Unless otherwise indicated in this Agreement
or another Loan Document, all Collateral held and all payments received by
Administrative Agent are deemed to be held and received, respectively, for the
benefit of Lenders.
ARTICLE 10: MISCELLANEOUS
10.1. Indemnification, Reliance and Assumption of Risk. Without
limiting any other indemnification in any Loan Document, each Borrower (jointly
and severally) hereby agrees to defend Administrative Agent and each Lender (and
their directors, officers, employees, agents, counsels and Affiliates) from, and
hold each of them harmless against, any and all losses, liabilities, claims,
damages, interests, judgments, or costs (including fees and disbursements of
counsel) incurred by any of them arising out of or in any way connected with any
Loan Document, except for losses resulting directly from such Person's own gross
negligence, willful misconduct or fraud. In addition, each Borrower will
reimburse and (jointly and severally) indemnify Administrative Agent and each
Lender for all costs and losses resulting from the following: (1) any failure or
refusal by any Borrower or by any Affiliate of any Borrower to provide any
requested assistance or cooperation in connection with any attempt by
Administrative Agent or any Lender to liquidate any Collateral in the event of
any Event of Default and/or any attempt by Administrative Agent or any Lender to
otherwise exercise its rights hereunder, and (2) any misrepresentation, gross
negligence, fraud or willful misconduct by any Borrower (or any of its employees
or officers), or any other person or entity pledging Collateral hereunder.
Moreover, with respect to any Advance Request or other communication between any
Borrower and Administrative Agent and/or Lenders hereunder and all other matters
and transactions in connection therewith, each Borrower hereby irrevocably
authorizes Administrative Agent and each Lender to accept, rely upon, act upon
and comply with any verbal or written instructions, requests, confirmations and
orders of any Authorized Officer of any Borrower. Each Borrower acknowledges
that the transmissions of any such instruction, request, confirmation, order or
other communication involves the possibility of errors, omissions, mistakes and
discrepancies, and each Borrower agrees to adopt such internal measures and
operational procedures to protect its
62
interest. By reason thereof, each Borrower hereby assumes all risk of loss and
responsibility for -- and hereby releases and discharges Administrative Agent
and each Lender from any and all risk of loss and responsibility for, and agrees
to indemnify, reimburse on demand and hold Administrative Agent and each Lender
harmless from -- any and all claims, actions, damages, losses, liability and
costs by reason of or in any way related to (a) Administrative Agent's or any
Lender's accepting, relying and acting upon, complying with or observing any
such instructions, requests, confirmations or orders from or on behalf of any
such Authorized Officer, and (b) any such errors, omissions, mistakes and
discrepancies by (or otherwise resulting from or attributable to the actions or
inactions of) any Authorized Officer or any Borrower; provided, however, no
Borrower assumes hereby the risk of any foreseeable actual loss resulting
directly from Administrative Agent's or any Lender's own gross negligence, fraud
or willful misconduct. Each Borrower's obligations provided for in this Section
will survive any termination of this Agreement, and the repayment of the
outstanding balances hereunder.
10.2. Assignments and Participations. No Loan Document may be assigned
(in whole or in part) by any Borrower without the prior written consent of each
Lender. Notwithstanding any other provision of any Loan Document, without
receiving any consent of any Borrower, each Lender at any time and from time to
time may syndicate, participate or otherwise transfer, pledge or assign all (or
any proportionate part of) its rights and obligations under any of the Loan
Documents (or any indebtedness evidenced thereby) to any Person. Lenders
(through Administrative Agent) will make reasonable efforts to notify Borrowers
of any such absolute transfer or assignment within twenty (20) Business Days
thereafter; however, a failure to so notify will in no way impair any rights of
Administrative Agent or Lenders or any participant, transferee or assignee. Upon
execution and delivery of an appropriate instrument between any such
participant, transferee or assignee and an assigning Lender, then (at
Administrative Agent's request) such participant, transferee or assignee will
become a Lender party to this Agreement and will have all the rights and
obligations of a Lender as set forth in such instrument. At Administrative
Agent's request, each Borrower will execute (or re-execute) and deliver (or
otherwise obtain) any documents necessary to reflect or implement any such
participation, transfer or assignment (including replacement promissory notes
and any requested letters authorizing such participant, transferee or assignee
to rely on existing certificates and opinions) and will otherwise fully
cooperate in any such syndication process. Attached as Exhibit 10.2 is a form of
Assignment and Assumption Agreement, a substantially similar version of which is
to be used in connection with assignment of Lenders hereunder.
10.3. No Waiver; Delay. To be effective, any waiver by Lenders must be
expressed in a writing executed by Administrative Agent (with the approval of
Required Lenders). Once a Default occurs under the Loan Documents, then such
Default will continue to exist until it either is cured (to the extent
specifically permitted) in accordance with the Loan Documents or is otherwise
expressly waived by Lenders (in their sole and absolute discretion) in writing;
and once an Event of Default occurs under the Loan Documents, then such Event of
Default will continue to exist until it is expressly waived by Lenders (in their
sole and absolute discretion) in writing. If Administrative Agent or any Lender
waives any power, right or remedy arising hereunder or under any applicable law,
then such waiver will not be deemed to be a waiver (a) upon the later occurrence
or recurrence of any events giving rise to the earlier waiver or (b) as to any
other Obligor. No failure or delay by Administrative Agent or any Lender to
insist upon the strict
63
performance of any term, condition, covenant or agreement of any of the Loan
Documents, or to exercise any right, power or remedy hereunder, will constitute
a waiver of compliance with any such term, condition, covenant or agreement, or
preclude Administrative Agent or any Lender from exercising any such right,
power, or remedy at any later time or times. By accepting payment after the due
date of any amount payable under this Agreement or any other Loan Document,
neither Administrative Agent nor any Lender will be deemed to waive the right
either to require prompt payment when due of all other amounts payable under
this Agreement or any other Loan Document or to declare an Event of Default for
failure to effect such prompt payment of any such other amount. The remedies
provided herein are cumulative and not exclusive of each other, the remedies
provided by law, and the remedies provided by the other Loan Documents.
10.4. Modifications and Amendments. Except as otherwise expressly
provided in this Agreement, no modification or amendment to any Loan Document
will be effective unless made in a writing signed by appropriate officers of
Administrative Agent (with the consent of the Required Lenders) and each
Borrower. Notwithstanding the foregoing, to the extent that any such
modification or amendment attempts to implement any of the following, then such
amendment or modification must approved by all Lenders:
a. Increase the Commitment Percentage of any Lender, or
b. Alter any provision that effectively reduces that interest
rate applicable to the Loans, or
c. Reduce the amount of any fees due to Lenders under any Loan
Document (other than fees payable to the Administrative Agent for its own
account), or
d. Reduce the amount of any payment (whether for principal,
interest or any fee, other than a fee payable to the Administrative Agent for
its own account), or
e. Postpone or extend the Maturity Date for any Facility or
any scheduled payment date (whether for principal, interest or any fee, other
than a fee payable to the Administrative Agent for its own account), or
f. Change the definition of "Pro Rata" or "Required Lenders"
or otherwise change the number or percentage of Lenders that are required to
take or approve (or direct the Administrative Agent to take) any action under
the Loan Documents, or
g. Release or discharge any Borrower as a "Borrower" under the
Loan Documents or permit any Borrower to assign to another Person any of its
rights or obligations under the Loan Documents, or
h. Release all or any part of any guaranty of any part of the
Indebtedness under the Loan Documents or any security interest in or pledge of
any Collateral (except as otherwise already expressly authorized under the Loan
Documents), or
i. Amend this Section.
64
In addition, no provision of any Loan Document relating to the rights or
obligations of the Administrative Agent may be modified or amended without the
consent of the Administrative Agent.
10.5. Disclosure of Information to Third Parties. 10.5.1. By Borrowers.
Borrowers shall not (and shall not permit any employee, investor, agent or
representative to) issue any press releases describing the financing under the
Loan Documents or provide copies of any Loan Document (including any associated
term sheet) to any other Person or otherwise disclose to any other Person any
aspect of the pricing, compensation, covenant structure, covenant thresholds or
collateral security that are included in any Loan Document other than (a) to
employees, investors, agents and representatives of Borrowers (including legal
counsel, appraisers, and accountants), and (b) to any Person pursuant to
compulsory judicial process, and (c) to any judicial or arbitration forum in
connection with enforcing the Loan Documents or defending any action based upon
the Loan Documents or the relationship between Borrowers and Lender, and (d) to
any Person as and to the extent that Borrowers believe such disclosure is
required by applicable law, rule, regulation or order, and (e) to any Person as
and to the extent that Lender otherwise consents.
10.5.2. By Administrative Agent and each Lender.Administrative Agent
and each Lender will employ reasonable procedures to treat as confidential all
written, non-public information delivered to Administrative Agent or such Lender
pursuant to this Agreement concerning the performance, operations, assets,
structure and business plans of Borrowers that is conspicuously designated by
Borrowers as confidential information. While other or different confidentiality
procedures may be employed by Administrative Agent or any Lender, the actual
procedures employed by Administrative Agent and each Lender for this purpose
will be conclusively deemed to be reasonable if they are at least as protective
of such information as the procedures generally employed by Administrative Agent
and such Lender to safeguard the confidentiality of Administrative Agent's and
Lender's own information that Administrative Agent and Lender generally consider
to be confidential. Notwithstanding the foregoing, Administrative Agent and each
Lender may disclose any information concerning any Borrower in Administrative
Agent's or such Lender's possession from time to time (a) to permitted
participants, transferees, assignees, pledgees, funding sources and investors
(including prospective participants, transferees, assignees, pledgees, funding
sources and investors), but subject to a reasonable confidentiality agreement
regarding any non-public confidential information thereby disclosed, and (b) in
response to credit inquiries consistent with general banking practices, and (c)
to any federal or state regulator of Administrative Agent or such Lender, and
(d) to Administrative Agent's or such Lender's Affiliates, employees, legal
counsel, appraisers, accountants, rating agencies, and agents, and (e) to any
Person pursuant to compulsory judicial process, and (f) to any judicial or
arbitration forum in connection with enforcing the Loan Documents or defending
any action based upon the Loan Documents or the relationship between
Administrative Agent and each Lender and any Borrower, and (g) to any Person as
and to the extent that Administrative Agent or such Lender believes such
disclosure is required by applicable law, rule, regulation or order, and (h) to
any other Person with respect to the public or non-confidential portions of any
such information, and (i) to any other Person as and to the extent that
Borrowers otherwise consent. In addition, from time to time, Administrative
Agent and each Lender (and their Affiliates) may disclose, publish and use
corporate logos in marketing presentations, marketing materials and press
releases
65
indicating that Administrative Agent or such Lender has extended credit to
Borrowers and the general nature and structure of the Facilities (exclusive of
the pricing terms). Moreover, Administrative Agent and each Lender (without any
compensation, remuneration or notice to Borrowers also may include operational,
performance and structural information and data relating to Borrowers in
compilations, reports and data bases assembled by Administrative Agent or such
Lender (or their Affiliates) and used to conduct, support, assist in and
validate portfolio, industry and credit research and analysis for itself and/or
other Persons; provided, however, that neither Administrative Agent nor any
Lender may thereby disclose to other Persons any information relating to
Borrowers in a manner that is attributable to Borrowers unless (1) such
disclosure is permitted under the standards outlined above in this Section or
(2) Borrowers otherwise separately consent thereto (which consent may not be
unreasonably withheld).
10.6. Binding Effect and Governing Law. This Agreement and the other
Loan Documents have been delivered by Borrowers and the other Obligors and have
been received by Administrative Agent in the Commonwealth of Virginia. This
Agreement and all documents executed hereunder are binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns. This
Agreement and all documents executed hereunder are governed as to their
validity, interpretation, construction and effect by the laws of the
Commonwealth of Virginia (without giving effect to the conflicts of law rules of
Virginia).
10.7. Notices. Any notice, request, consent, waiver or other
communication required or permitted under or in connection with the Loan
Documents will be deemed satisfactorily given if it is in writing and is
delivered either personally to the addressee thereof, or by prepaid registered
or certified U.S. mail (return receipt requested), or by a nationally recognized
commercial courier service with next-day delivery charges prepaid, or by
telegraph, or by facsimile (voice confirmed), or by any other reasonable means
of personal delivery to the party entitled thereto at its respective address set
forth below:
If to any Borrower NBG Radio Network, Inc.
or its Affiliates: c/o
NBG Radio Network, Inc.
The Cascade Building
000 XX Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Xxxx X. Xxxxxx, III, President
Facsimile: (000) 000-0000.
With a copy to the following listed counsel or such
other counsel as may be designated by Borrowers from
time to time (and which notice shall not constitute
notice to Borrowers and failure to give such notice
shall not affect the effectiveness of notice to
Borrowers):
00
Xxxxxx Xxxxxxxxxx, Xxxxxxx
Xxxxxxx Xxxxxxxxxx & Xxxxx, P.C.
PacWest Center, Suites 1600-1900
0000 XX Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Facsimile (000)000-0000.
If to Administrative: MCG Finance Corporation
Agent or Lenders: 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Loan Administration
Facsimile: (000) 000-0000
With a copy to the following listed counsel or such
other counsel as may be designated by Administrative
Agent from time to time (and which notice shall not
constitute notice to Administrative Agent or any
Lender and failure to give such notice shall not
affect the effectiveness of notice to Administrative
Agent or Lenders):
Xxxxx X. Xxxxx, Esquire
Xxxxx Xxxx LLP
000 Xxxxx Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Any party to a Loan Document may change its address or facsimile
number for notice purposes by giving notice thereof to the other parties to such
Loan Document in accordance with this Section, provided that such change shall
not be effective until 2 calendar days after notice of such change. All such
notices and other communications will be deemed given and effective (a) if by
mail, then upon actual receipt or 5 calendar days after mailing as provided
above (whichever is earlier), or (b) if by facsimile, then upon successful
transmittal to such party's designated number, or (c) if by telegraph, then upon
actual receipt or 2 Business Days after delivery to the telegraph company
(whichever is earlier), or (d) if by nationally recognized commercial courier
service, then upon actual receipt or 2 Business Days after delivery to the
courier service (whichever is earlier), or (e) if otherwise delivered, then upon
actual receipt. For any and all purposes related to giving and receiving notices
and communications between any Borrower and Administrative Agent and Lenders
under any Loan Document, each Borrower hereby irrevocably appoints Xxxx X.
Xxxxxx, III (and each other Authorized Officer) as its agent to whom
Administrative Agent and each Lender may give and from whom Administrative Agent
and each Lender may receive all such notices and communications, and
Administrative Agent and each Lender is entitled to rely upon (and treat as
being properly authorized by Borrowers) any verbal or written notices or
communications purportedly received from (or that Administrative Agent or such
Lender believes in good faith to be received from) such Authorized Officer.
10.8. Relationship with Prior Agreements. This Agreement completely and
fully supersedes all oral agreements and all other and prior written agreements
by and among
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Borrowers and Administrative Agent and any Lender concerning the terms and
conditions of this credit arrangement.
10.9. Severability. If fulfillment of any provision of or any
transaction related to any Loan Document at the time performance is due involves
transcending the limit of validity prescribed by applicable law, then ipso
facto, the obligation to be fulfilled shall be reduced to the limit of such
validity. If any clause or provision of this Agreement operates or would
prospectively operate to invalidate this Agreement or any other Loan Document in
whole or in part, then such clause or provision only shall be void (as though
not contained herein or therein), and the remainder of this Agreement or such
other Loan Document shall remain operative and in full force and effect;
provided, however, if any such clause or provision pertains to the repayment of
any indebtedness hereunder, then the occurrence of any such invalidity shall
constitute an immediate Event of Default hereunder.
10.10. Termination and Survival. All representations, warranties,
covenants and other agreements of any Obligor contained in any Loan Document or
any other documentation required thereunder will survive the execution and
delivery of the Loan Documents and the funding of the Advances hereunder and
will continue in full force and effect until terminated in accordance with this
Agreement. Upon (a) indefeasible receipt by Administrative Agent of the entire
indebtedness and all other amounts then due or owing to Administrative Agent or
any Lender under the Loan Documents (without any condition, deduction, offset,
netting, counterclaim or reservation of rights), and (b) receipt by
Administrative Agent of an instruction from Borrowers to terminate and cancel
the Loan Documents, all Commitments and all Facilities thereunder (together with
an acknowledgment that neither Administrative Agent nor any Lender will have any
further obligations or liabilities under or in connection with any Loan
Document), then Administrative Agent (at the written request and expense of
Borrowers) will terminate and cancel all Loan Documents (other than the waivers,
reinstatement rights, and reimbursement and indemnification protections in favor
of Administrative Agent and each Lender under the Loan Documents, which
provisions shall survive any such termination of the Loan Documents).
10.11. Reinstatement. To the maximum extent not prohibited by
applicable law, this Agreement and the other Loan Documents (and the
indebtedness hereunder and Collateral therefor) will be reinstated and the
indebtedness correspondingly increased (as though such payment(s) had not been
made) if at any time any amount received by Administrative Agent or any Lender
in respect of any Loan Document is rescinded or must otherwise be restored,
refunded or returned by Administrative Agent or such Lender to Borrower or any
other Person (a) upon or as a result of the insolvency, bankruptcy, dissolution,
liquidation or reorganization of any Borrower or any other Person, or (b) upon
or as a result of the appointment of any receiver, intervenor, conservator,
trustee or similar official for any Borrower or any other Person or for any
substantial part of the assets of any Borrower or any other Person, or (c) for
any other reason.
10.12. Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if all the signatures on such counterparts
appeared on one document. Each such counterpart will be deemed to be an original
but all counterparts together will constitute one and the same instrument.
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10.13. Waiver of Suretyship Defenses. Each Borrower hereby waives any
and all defenses and rights of discharge based upon suretyship or impairment of
collateral (including lack of attachment or perfection with respect thereto)
that it may now have or may hereafter acquire with respect to Administrative
Agent or any Lender or any of its obligations hereunder, under any Loan Document
or under any other agreement that it may have or may hereafter enter into with
Administrative Agent or any Lender.
10.14. Waiver of Liability. Each Borrower (a) agrees that neither
Administrative Agent nor any Lender (nor any of their directors, officers,
employees or agents) shall have any liability to any Borrower (whether sounding
in tort, contract or otherwise) for losses or costs suffered or incurred by any
Borrower in connection with or in any way related to the transactions
contemplated or the relationship established by any Loan Document, or any act,
omission or event occurring in connection herewith or therewith, except for
foreseeable actual losses resulting directly from Administrative Agent's or such
Lender's own gross negligence, willful misconduct or fraud and (b) waives,
releases and agrees not to xxx upon any claim against Administrative Agent or
any Lender (or their directors, officers, employees or agents) whether sounding
in tort, contract or otherwise, except for claims for foreseeable actual losses
resulting directly and exclusively from Administrative Agent's or such Lender's
own gross negligence, willful misconduct or fraud. Moreover, whether or not such
damages are related to a claim that is subject to the waiver effected above and
whether or not such waiver is effective, neither Administrative Agent nor any
Lender (nor their directors, officers, employees or agents) shall have any
liability with respect to (and each Borrower hereby waives, releases and agrees
not to xxx upon any claim for) any special, indirect, consequential, punitive or
non-foreseeable damages suffered by any Borrower in connection with or in any
way related to the transactions contemplated or the relationship established by
any Loan Document, or any act, omission or event occurring in connection
herewith or therewith.
10.15. Forum Selection; Consent to Jurisdiction. Any litigation in
connection with or in any way related to any Loan Document, or any course of
conduct, course of dealing, statements (whether verbal or written), actions or
inactions of Administrative Agent, any Lender or any Borrower will be brought
and maintained exclusively in the courts of the Commonwealth of Virginia or in
the United States District Court for the Eastern District of Virginia; provided,
however, that any suit seeking enforcement against any Borrower, any Collateral
or any other property may also be brought (at Administrative Agent's and
Lenders' option) in the courts of any other jurisdiction where such Collateral
or other property may be found or where Administrative Agent or any Lender may
otherwise obtain personal jurisdiction over such Borrower. Each Borrower hereby
expressly and irrevocably submits to the jurisdiction of the courts of the
Commonwealth of Virginia and of the United States District Court for the Eastern
District of Virginia for the purpose of any such litigation as set forth above
and irrevocably agrees to be bound by any final and non-appealable judgment
rendered thereby in connection with such litigation. Each Borrower further
irrevocably consents to the service of process by registered or certified mail,
postage prepaid, or by personal service within or outside the Commonwealth of
Virginia. Each Borrower hereby expressly and irrevocably waives, to the fullest
extent permitted by law, any objection which it may have or hereafter may have
69
to the laying of venue of any such litigation brought in any such court referred
to above and any claim that any such litigation has been brought in an
inconvenient forum. To the extent that any Borrower has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution or otherwise) with respect to itself or its property, then such
Borrower hereby irrevocably waives such immunity in respect of its obligations
under this Agreement.
10.16. Waiver of Jury Trial. Administrative Agent, each Lender and each
Borrower each hereby knowingly, voluntarily and intentionally waives any rights
it may have to a trial by jury in respect of any litigation (whether as claim,
counter-claim, affirmative defense or otherwise) in connection with or in any
way related to any of the Loan Documents, or any course of conduct, course of
dealing, statements (whether verbal or written), actions or inactions of
Administrative Agent, any Lender or any Borrower. Each Borrower acknowledges and
agrees (a) that it has received full and sufficient consideration for this
provision (and each other provision of each other Loan Document to which it is a
party), and (b) that it has been advised by legal counsel in connection
herewith, and (c) that this provision is a material inducement for
Administrative Agent and each Lender entering into the Loan Documents and
funding Advances thereunder.
[BALANCE OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the undersigned, by their duly authorized officers, have
executed this Credit Facility Agreement, as an instrument under seal (whether or
not any such seals are physically attached hereto), as of the day and year first
above written.
ATTEST: NBG RADIO NETWORK, INC.
By:/s/ Xxxx X. Xxxxxxxxx By:/s/ Xxxx X. Xxxxxx III
-------------------------- --------------------------
Name: Xxxx X. Xxxxxxxxx Name: Xxxx X. Xxxxxx III
Title: Secretary Title: President
[CORPORATE SEAL]
ATTEST: XXXXX XXXXXX ENTERTAINMENT CORPORATION
By:/s/ Xxxx X. Xxxxxxxxx By:/s/ Xxxx X. Xxxxxx III
-------------------------- --------------------------
Name: Xxxx X. Xxxxxxxxx Name: Xxxx X. Xxxxxx III
Title: Secretary Title: President
WITNESS: MCG FINANCE CORPORATION
By:/s/ Xxxx Xxxxxx By:/s/ X. Xxxxx Xxxxxxx
-------------------------- --------------------------
Name: X. Xxxxx Xxxxxxx
Title: Executive Vice President
