1
EXHIBIT 10
$100,000,000
364-DAY CREDIT AGREEMENT
DATED AS OF
MARCH ___, 2001
AMONG
THE LIBERTY CORPORATION
THE BANKS LISTED HEREIN
AND
WACHOVIA BANK, N.A.,
AS AGENT
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TABLE OF CONTENTS
PAGE
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Article I. DEFINITIONS..................................................................1
Section 1.01 Definitions.......................................................1
Section 1.02 Accounting Terms and Determinations..............................14
Section 1.03 References.......................................................14
Article II. THE CREDITS................................................................14
Section 2.01 Commitments to Lend..............................................14
Section 2.02 Method of Borrowing Loans........................................15
Section 2.03 Continuation and Conversion Elections............................16
Section 2.04 Notes............................................................17
Section 2.05 Maturity of Loans................................................17
Section 2.06 Interest Rates...................................................18
Section 2.07 Fees.............................................................20
Section 2.08 Optional Termination or Reduction of Commitments.................21
Section 2.09 Mandatory Reduction and Termination of Commitments...............21
Section 2.10 Optional Prepayments of Advances.................................22
Section 2.11 Mandatory Prepayments............................................22
Section 2.12 General Provisions as to Payments................................22
Section 2.13 Computation of Interest and Fees.................................24
Article III. CONDITIONS TO BORROWINGS..................................................24
Section 3.01 Conditions to First Borrowing....................................24
Section 3.02 Conditions to All Borrowings.....................................25
Section 3.03 Determinations Under Section 3.01................................26
Article IV. REPRESENTATIONS AND WARRANTIES.............................................26
Section 4.01 Corporate Existence and Power....................................26
Section 4.02 Corporate and Governmental Authorization; No Contravention.......26
Section 4.03 Binding Effect...................................................26
Section 4.04 Financial Information............................................27
Section 4.05 Litigation.......................................................27
Section 4.06 Compliance with ERISA............................................27
Section 4.07 Compliance with Laws; Payment of Taxes...........................27
Section 4.08 Subsidiaries.....................................................28
Section 4.09 Not an Investment Company........................................28
Section 4.10 Ownership of Property; Liens.....................................28
Section 4.11 No Default.......................................................28
Section 4.12 Full Disclosure..................................................28
Section 4.13 Environmental Matters............................................28
Section 4.14 Insolvency.......................................................29
Section 4.15 Public Utility Holding Company Act...............................29
Section 4.16 Capital Stock....................................................29
Section 4.17 Margin Stock.....................................................29
Section 4.18 No Forfeiture....................................................29
Section 4.19 Broadcast Licenses and Operating Agreements......................29
Article V. COVENANTS...................................................................31
Section 5.01 Information......................................................31
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Section 5.02 Inspection of Property, Books and Records........................33
Section 5.03 Leverage Ratio...................................................33
Section 5.04 [Reserved].......................................................33
Section 5.05 Restricted Payments..............................................33
Section 5.06 Coverage Ratio...................................................34
Section 5.07 Loans or Advances................................................34
Section 5.08 Investments......................................................34
Section 5.09 Negative Pledge..................................................34
Section 5.10 Conduct of Business and Maintenance of Existence.................35
Section 5.11 Dissolution......................................................35
Section 5.12 Consolidations, Mergers and Sales of Assets......................35
Section 5.13 Use of Proceeds..................................................36
Section 5.14 Compliance with Laws; Payment of Taxes...........................36
Section 5.15 Insurance........................................................36
Section 5.16 Change in Fiscal Year............................................36
Section 5.17 Maintenance of Property..........................................37
Section 5.18 Environmental Notices............................................37
Section 5.19 Environmental Matters............................................37
Section 5.20 Environmental Release............................................37
Section 5.21 Transactions with Affiliates.....................................37
Section 5.22 Restrictions on Ability of Subsidiaries to Pay Dividends.........37
Section 5.23 No Activities Leading to Forfeiture..............................37
Section 5.24 Additional Guarantors............................................37
Section 5.25 Maintenance of FCC Licenses, Affiliation Agreements, Etc.........38
Section 5.26 Cease Broadcasting...............................................38
Article VI. DEFAULTS...................................................................38
Section 6.01 Events of Default................................................38
Section 6.02 Notice of Default................................................41
Article VII. THE AGENT.................................................................41
Section 7.01 Appointment; Powers and Immunities...............................41
Section 7.02 Reliance by Agent................................................42
Section 7.03 Defaults.........................................................42
Section 7.04 Rights of Agent and its Affiliates as a Bank.....................42
Section 7.05 Indemnification..................................................42
Section 7.06 CONSEQUENTIAL DAMAGES............................................43
Section 7.07 Registered Holder of Loan Treated as Owner.......................43
Section 7.08 Nonreliance on Agent and Other Banks.............................43
Section 7.09 Failure to Act...................................................44
Section 7.10 Successor Agent..................................................44
Section 7.11 Other Agents.....................................................44
Article VIII. CHANGE IN CIRCUMSTANCES; COMPENSATION....................................44
Section 8.01 Basis for Determining Interest Rate Inadequate or Unfair.........44
Section 8.02 Illegality.......................................................45
Section 8.03 Increased Cost and Reduced Return................................45
Section 8.04 Base Rate Loans Substituted for Affected Euro-Dollar Loans.......46
Section 8.05 Compensation.....................................................47
Article IX. MISCELLANEOUS..............................................................47
Section 9.01 Notices..........................................................47
Section 9.02 No Waivers.......................................................48
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Section 9.03 Expenses; Indemnification........................................48
Section 9.04 Sharing of Set-Offs..............................................48
Section 9.05 Amendments and Waivers...........................................49
Section 9.06 Margin Stock Collateral..........................................50
Section 9.07 Successors and Assigns...........................................50
Section 9.08 Confidentiality..................................................53
Section 9.09 Representation by Banks..........................................53
Section 9.10 Obligations Several..............................................53
Section 9.11 Survival of Certain Obligations..................................53
Section 9.12 Georgia Law......................................................53
Section 9.13 Consent to Jurisdiction..........................................53
Section 9.14 Counterparts.....................................................54
Section 9.15 Miscellaneous....................................................54
Section 9.16 Independence of Covenants........................................54
SCHEDULE 1.01A Material Subsidiaries
SCHEDULE 1.01B Stations
SCHEDULE 1.01C Excluded Assets
SCHEDULE 1.01D Excluded Subsidiaries
SCHEDULE 4.19 Broadcast Licenses
SCHEDULE 5.01(c) Form of Compliance Certificate
EXHIBIT A-Form of Note
EXHIBIT B-Form of Opinion of Counsel for the Borrower
EXHIBIT C-Form of Opinion of Counsel for the Agent
EXHIBIT D-Form of Closing Certificate
EXHIBIT E-Form of Secretary's Certificate of the Borrower
EXHIBIT F-Form of Guaranty
EXHIBIT G-Form of Notice of Borrowing
EXHIBIT H-Form of Notice of Continuation or Conversion
EXHIBIT I-Form of Secretary's Certificate of Cosmos
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364-DAY CREDIT AGREEMENT
AGREEMENT dated as of March ___, 2001, among THE LIBERTY CORPORATION,
the BANKS listed on the signature pages hereof (and their successors and
assigns) and WACHOVIA BANK, N.A., as Agent.
The parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01 Definitions. The terms as defined in this Section 1.01
shall, for all purposes of this Agreement and any amendment hereto (except as
herein otherwise expressly provided or unless the context otherwise requires),
have the meanings set forth herein (with the singular form to include the plural
form and vice-versa):
"Acquisition" means any transaction or series of related transactions
for the purpose of, or resulting in, directly or indirectly, (a) the acquisition
by the Borrower or any Subsidiary of all or substantially all of the assets of a
Person (other than a Subsidiary) or of any business or division of a Person
(other than a Subsidiary), (b) the acquisition by the Borrower or any Subsidiary
of more than 50% of any class of Voting Stock (or similar ownership interests)
of any Person, or (c) a merger, consolidation, amalgamation or other combination
by the Borrower or any Subsidiary with another Person (other than a Subsidiary)
if the Borrower or such Subsidiary is the surviving entity; provided that in any
merger involving the Borrower, the Borrower must be the surviving entity.
"Additional Guarantor" shall mean each Person that becomes a Guarantor
in accordance with Section 5.24.
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.06(c).
"Advance" means any advance by the Banks under the Commitment.
"Affiliate" means (i) any Person that directly, or indirectly through
one or more intermediaries, controls the Borrower (a "Controlling Person"), (ii)
any Person (other than the Borrower or a Subsidiary) which is controlled by or
is under common control with a Controlling Person, or (iii) any Person (other
than a Subsidiary) of which the Borrower owns, directly or indirectly, 20% or
more of the common stock or equivalent equity interests. As used herein, the
term "control" means possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
"Agent" means Wachovia Bank, N.A., a national banking association
organized under the laws of the United States of America, in its capacity as
agent for the Banks hereunder, and its successors and permitted assigns in such
capacity.
"Applicable Margin" has the meaning set forth in Section 2.06(a).
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"Assignee" has the meaning set forth in Section 9.07(c).
"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages hereof as having a
Commitment, and its successors and assigns.
"Base Rate" means, for any Base Rate Loan for any day, the rate per
annum equal to the higher as of such day of (i) the Prime Rate, and (ii)
one-half of one percent plus the Federal Funds Rate for such day. For purposes
of determining the Base Rate for any day, changes in the Prime Rate and Federal
Funds Rate shall be effective on the date of each such change.
"Base Rate Borrowing" means a Borrowing in which the advances under
such borrowing bear or are to bear interest calculated by reference to the Base
Rate.
"Base Rate Loan" means an Advance which bears or is to bear interest
calculated by reference to the Base Rate, and is to be made as a Base Rate Loan
pursuant to the applicable Notice of Borrowing, Notice of Continuation or
Conversion, Section 2.02(f), or Article VIII, as applicable.
"Book Value" means, with respect to any asset, the cost of such asset,
minus accumulated depreciation or amortization, if any, with respect to such
asset.
"Borrower" means The Liberty Corporation, a South Carolina corporation,
and its successors.
"Borrowing" means a borrowing hereunder consisting of Loans made to the
Borrower at the same time by all of the Banks pursuant to Article II.
"Broadcast Licenses" means licenses, permits, authorizations or
certifications now or hereafter held by the Borrower or any Subsidiary of the
Borrower (including, without limitation, the Broadcast Licenses listed on
Schedule 4.19 hereto) to construct, own, operate or promote the Stations granted
by the FCC, the administrative law courts or by any state, county, city, town,
village or other local government authority, and all extensions, additions and
renewals thereto or thereof.
"Capital Expenditures" means for any period the sum of all capital
expenditures incurred during such period by the Borrower and its Consolidated
Subsidiaries, as determined in accordance with generally accepted accounting
principles consistently applied.
"Capital Stock" of any Person means any redeemable or nonredeemable
shares of capital stock of such Person (to the extent issued to a Person other
than the Borrower), whether common or preferred.
"CERCLA" means the Comprehensive Environmental Response Compensation
and Liability Act.
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"CERCLIS" means the Comprehensive Environmental Response Compensation
and Liability Information System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section 8.02.
"Closing Date" means March ___, 2001.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code. Any reference to any provision of the Code shall
also be deemed to be a reference to any successor provision or provisions
thereof.
"Commitment" means, with respect to each Bank, (i) the amount set forth
opposite the name of such Bank on the signature pages hereof, and (ii) as to any
Bank which enters into any LSTA Assignment (whether as transferor Bank or as
Assignee thereunder), the amount of such Bank's Commitment after giving effect
to such LSTA Assignment, in each case as such amount may be reduced from time to
time pursuant to Sections 2.08 and 2.09.
"Communications Act" means the Communications Act of 1934, as amended
(including, without limitation, the Telecommunications Act of 1996), or any
successor statute or statutes thereto, and all rules, regulations, written
policies, orders and decisions of the FCC thereunder, in each case as from time
to time in effect.
"Consolidated Debt" means at any date the Debt of the Borrower and its
Consolidated Subsidiaries, determined on a consolidated basis as of such date.
"Consolidated EBIT" for any period means the sum of (i) Consolidated
Net Income for such period; (ii) Consolidated Interest Expense for such period;
(iii) taxes on income of the Borrower and its Consolidated Subsidiaries for such
period to the extent deducted in determining Consolidated Net Income for such
period; and (iv) non-cash non-recurring charges or losses, if any of the
Borrower and its Consolidated Subsidiaries for such period, minus the sum of (a)
non-cash non-recurring gains, if any of the Borrower and its Consolidated
Subsidiaries for such period, and (b) interest income of the Borrower and its
Consolidated Subsidiaries for such period. In determining Consolidated EBIT for
any period, any Consolidated Subsidiary acquired during such period by the
Borrower or any other Consolidated Subsidiary shall be included on a pro forma,
historical basis as if it had been a Consolidated Subsidiary for the entire
period.
"Consolidated EBITDA" for any period means the sum of (i) Consolidated
Net Income for such period; (ii) Consolidated Interest Expense for such period,
(iii) taxes on income of the Borrower and its Consolidated Subsidiaries for such
period to the extent deducted in determining Consolidated Net Income for such
period, (iv) Depreciation for such period, (v) amortization of intangible assets
of the Borrower and its Consolidated Subsidiaries for such period, and (vi)
non-cash non-recurring charges or losses, if any of the Borrower and its
Consolidated Subsidiaries for such period, minus the sum of (a) non-cash
non-recurring gains, if any of the Borrower and its Consolidated Subsidiaries
for such period, and (b) interest income of the Borrower and its Consolidated
Subsidiaries for such period. In determining Consolidated EBITDA for any period,
any Consolidated Subsidiary acquired during such period by the Borrower or any
other Consolidated Subsidiary shall be included on a pro forma, historical basis
as if it had been a Consolidated Subsidiary for the entire period.
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"Consolidated Interest Expense" for any period means interest, whether
expensed or capitalized, in respect of Debt of the Borrower or any of its
Consolidated Subsidiaries outstanding during such period.
"Consolidated Net Income" means, for any period, the Net Income of the
Borrower and its Consolidated Subsidiaries determined on a consolidated basis,
but excluding (i) extraordinary items and (ii) any equity interests of the
Borrower or any Subsidiary of the Borrower in the unremitted earnings of any
Person that is not a Subsidiary of the Borrower.
"Consolidated Operating Profits" means, for any period, the Operating
Profits of the Borrower and its Consolidated Subsidiaries.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which, in accordance with generally accepted accounting
principles consistently applied, would be consolidated with those of the
Borrower in its consolidated financial statements as of such date.
"Consolidated Total Assets" means, at any time, the total assets of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated basis,
as set forth or reflected on the most recent consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries, prepared in accordance with GAAP.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Code.
"Cosmos" means Cosmos Broadcasting Corporation, a South Carolina
corporation.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee under capital leases,
(v) all obligations of such Person to reimburse any bank or other Person in
respect of amounts payable under a banker's acceptance, (vi) all Non-Convertible
Redeemable Preferred Stock of such Person (in the event such Person is a
corporation), (vii) all obligations (absolute or contingent) of such Person to
reimburse any bank or other Person in respect of amounts paid or to be paid
under a letter of credit or similar instrument, (viii) all Debt of others
secured by a Lien on any asset of such Person, whether or not such Debt is
assumed by such Person, and (ix) all obligations of such Person with respect to
interest rate protection agreements, foreign currency exchange agreements or
other hedging arrangements (valued as the termination value thereof computed in
accordance with a method approved by the International Swap Dealers Association
and agreed to by such Person in the applicable hedging agreement, if any), (x)
all obligations of such Person in respect of securitizations or similar
arrangements, (xi) all Debt of others Guaranteed by such Person and (xii) the
principal portion of all obligations of such Person under any synthetic lease,
tax retention operating lease, off-balance sheet loan or similar off-balance
sheet financing
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product where such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease under GAAP.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived in writing, become an Event of Default.
"Default Rate" means, with respect to any Loan, for any day, the sum of
2% plus the then highest interest rate (including the Applicable Margin) which
may be applicable to any Loans hereunder (irrespective of whether any such type
of Loans are actually outstanding hereunder).
"Depreciation" means for any period the sum of all depreciation
expenses of the Borrower and its Consolidated Subsidiaries for such period, as
determined in accordance with generally accepted accounting principles
consistently applied.
"Dollars" or "$" means dollars in lawful currency of the United States
of America.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in Georgia or New York are authorized or
required by law to close.
"Environmental Authorizations" means all licenses, permits, orders,
approvals, notices, registrations or other legal prerequisites for conducting
the business of the Borrower and its Subsidiaries required by any Environmental
Requirement.
"Environmental Authority" means any foreign, federal, state, local or
regional government that exercises any form of jurisdiction or authority under
any Environmental Requirement.
"Environmental Judgments and Orders" means all judgments, decrees or
orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated in a judgment,
decree or order.
"Environmental Liabilities" means any liabilities, whether accrued,
contingent or otherwise, arising from and in any way associated with any
Environmental Requirements.
"Environmental Notice" means notice from any Environmental Authority or
by any other person or entity, of possible or alleged noncompliance with any
Environmental Requirement, including without limitation any complaints,
citations, demands or requests from any Environmental Authority or from any
other person or entity for correction of any violation of any Environmental
Requirement or any investigations concerning any violation of any Environmental
Requirement.
"Environmental Proceedings" means any judicial or administrative
proceedings arising from or in any way associated with any Environmental
Requirement.
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"Environmental Releases" means releases as defined in CERCLA or under
any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement relating to
health, safety or the environment and applicable to the Borrower, any Subsidiary
or the Properties, including but not limited to any such requirement under
CERCLA or similar state legislation.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor law. Any reference to any provision
of ERISA shall also be deemed to be a reference to any successor provision or
provisions thereof.
"Euro-Dollar Borrowing" means a Borrowing in which the advances under
such borrowing bear or are to bear interest calculated by reference to the
Adjusted London Interbank Offered Rate.
"Euro-Dollar Business Day" means any Domestic Business Day on which
dealings in Dollar deposits are carried out in the London interbank market.
"Euro-Dollar Loan" means an Advance which bears or is to bear interest
calculated by reference to the Adjusted London Interbank Offered Rate, and is to
be made as a Euro-Dollar Loan pursuant to a Notice of Borrowing or continued as
or converted to a Euro-Dollar Loan pursuant to a Notice of Continuation or
Conversion.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.06(c).
"Event of Default" has the meaning set forth in Section 6.01.
"Excluded Assets" means those assets described on Schedule 1.01C
hereto.
"Excluded Subsidiary" means any Subsidiary identified on Schedule 1.01D
hereto.
"Fair Market Value" means, with respect to any asset, the greater of:
(i) the Gross Proceeds received by the Borrower or any Subsidiary in connection
with the sale, transfer or other disposition by the Borrower or such Subsidiary
(as the case may be) of such asset; or (ii) the Book Value of such asset.
"FCC" means the Federal Communication Commission.
"FCC Broadcast License" means any Broadcast License granted or issued
by the FCC.
"Federal Funds Rate" means, for any day, the rate per annum (rounded,
if necessary, to the nearest 1/100th of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Domestic Business Day next
succeeding such day, provided that (i) if the day for which such rate is to be
determined is not a Domestic Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Domestic Business
Day as so published on the next succeeding Domestic Business Day, and (ii) if
such rate is not so published for any day, the
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Federal Funds Rate for such day shall be the average rate charged to Wachovia on
such day on such transactions as determined by the Agent.
"Film Payments" means cash payments for syndicated film products, such
as first-run and off-network programs.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"Forfeiture Proceeding" means any action, proceeding or investigation
affecting the Borrower or any of its Subsidiaries before any court, governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, if such action, proceeding or investigation could result in (i) the
seizure or forfeiture of any of their assets, revenues or share capital, which
when the Fair Market Value of such assets, revenues or share capital subject to
such seizure or forfeiture when aggregated with the Fair Market Value of all
other assets, revenues and share capital of the Borrower and its Subsidiaries
seized or forfeited since the Closing Date exceeds $2,500,000, or (ii) a
material adverse change in the business, financial position, results of
operations or prospects of the Borrower or any of its Subsidiaries.
"Gross Proceeds" means any and all cash, plus the face amount of any
and all notes, bonds, debentures, instruments and evidences of indebtedness, and
the value of any other property, of whatever kind or nature, received by the
Borrower or any Subsidiary in connection with the sale, transfer or other
disposition by the Borrower or such Subsidiary (as the case may be) of any of
its assets.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising by virtue
of partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to provide collateral security, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Debt or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantor" means each of Cosmos and any Additional Guarantor which
shall become a party to the Guaranty after the date hereof.
"Guaranty" means the Guaranty Agreement dated as of even date herewith
executed by each Guarantor in favor of the Agent, substantially in the same form
attached hereto as Exhibit F, as modified, amended, supplemented or restated
from time to time.
"Hazardous Materials" includes, without limitation, (a) solid or
hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, or in any applicable state or
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local law or regulation, (b) hazardous substances, as defined in CERCLA, or in
any applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, (d) toxic substances, as defined in the Toxic
Substances Control Act of 1976, or in any applicable state or local law or
regulation and (e) insecticides, fungicides, or rodenticides, as defined in the
Federal Insecticide, Fungicide, and Rodenticide Act of 1975, or in any
applicable state or local law or regulation, as each such Act, statute or
regulation may be amended from time to time.
"Immaterial Subsidiary" means any Subsidiary other than a Material
Subsidiary.
"Income" means, as applied to any Person for any period, the aggregate
amount of income of such Person, before taxes, for such period, as determined in
accordance with generally accepted accounting principles consistently applied.
"Intercompany Loan" means any loan, advance or other extension of
credit made in the ordinary course of business (i) by the Borrower to any
Subsidiary; (ii) by any Subsidiary to the Borrower; or (iii) by any Consolidated
Subsidiary to any other Consolidated Subsidiary; provided that the aggregate
outstanding principal amount of Intercompany Loans made by Consolidated
Subsidiaries to other Consolidated Subsidiaries shall at no time exceed 20% of
Stockholders' Equity.
"Interest Expense" for any period means interest, whether expensed or
capitalized, in respect of Debt of the Borrower, Cosmos or any of the Minor
Subsidiaries outstanding during such period.
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such borrowing, and ending on
the numerically corresponding day in the first, second, third or sixth calendar
month thereafter, as the Borrower may elect in the applicable Notice of
Borrowing; provided that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (c) below) which would otherwise end on a
day which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar Business
Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the appropriate subsequent calendar
month) shall, subject to clause (c) below, end on the last Euro-Dollar
Business Day of the appropriate subsequent calendar month; and
(c) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
(2) with respect to each Base Rate Borrowing, the period commencing on
the date of such borrowing and ending 30 days thereafter; provided that:
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(a) any Interest Period (other than an Interest Period
determined pursuant to clause (b) below) which would otherwise end on a
day which is not a Domestic Business Day shall be extended to the next
succeeding Domestic Business Day;
(b) any Interest Period applicable to an Advance which begins
before the Termination Date and would otherwise end after the
Termination Date shall end on the Termination Date.
"Lending Office" means, as to each Bank, its office located at its
address set forth on the signature pages hereof (or identified on the signature
pages hereof as its Lending Office) or such other office as such Bank may
hereafter designate as its Lending Office by notice to the Borrower and the
Agent.
"Leverage Ratio" means, for any date of determination, the ratio of (i)
Consolidated Debt as of such date of determination to (ii) Consolidated EBITDA
for the period of four consecutive Fiscal Quarters ending on such date of
determination.
"Liberty Corporation Preferred Stock" means any redeemable or
nonredeemable, preferred capital stock of the Borrower.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, the Borrower or any Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"Loan" means a Base Rate Loan or Euro-Dollar Loan and "Loans" means
Base Rate Loans, Euro-Dollar Loans, or any or all of them, as the context shall
require.
"Loan Documents" means this Agreement, the Notes, the Guaranty and any
other document evidencing or securing the Loans, and any other document or
instrument delivered from time to time in connection with this Agreement, the
Notes, the Guaranty or the Loans, as such documents and instruments may be
amended or supplemented from time to time.
"London Interbank Offered Rate" has the meaning set forth in Section
2.06(c).
"LSTA Assignment " means any form of Assignment Agreement approved from
time to time by the Loan Syndications and Trading Association.
"LSTA Confidentiality Agreement" means any form of Confidentiality
Agreement approved from time to time by the Loan Syndications and Trading
Association.
"Margin Stock" means "margin stock" as defined in Regulation T, U or X
of the Board of Governors of the Federal Reserve System, as in effect from time
to time, together with all official rulings and interpretations issued
thereunder.
"Material Adverse Effect" means, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or
- 9 -
14
governmental investigation or proceeding), whether singly or in conjunction with
any other event or events, act or acts, condition or conditions, occurrence or
occurrences, whether or not related, a material adverse change in, or a material
adverse effect upon, any of (a) the financial condition, operations, business,
properties or prospects of the Borrower and its Consolidated Subsidiaries taken
as a whole, (b) the rights and remedies of the Agent or the Banks under the Loan
Documents, or the ability of the Borrower or any Guarantor to perform its
obligations under the Loan Documents to which it is a party, as applicable, or
(c) the legality, validity or enforceability of any Loan Document.
"Material Subsidiary" means (a) on the Closing Date, each of the
Subsidiaries listed on Schedule 1.01A hereto, and (b) on any date after the
Closing Date, any Subsidiary of the Borrower which has either (i) Total Assets
(other than Excluded Assets) on the last day of the Fiscal Quarter most recently
ended equal to or greater than 5% of Consolidated Total Assets (other than
Excluded Assets) on the last day of the Fiscal Quarter most recently ended, or
(ii) Operating Profits for the period of 4 consecutive Fiscal Quarters most
recently ended prior to such date equal to or greater than 5% of Consolidated
Operating Profits for such period of 4 consecutive Fiscal Quarters; provided
that, notwithstanding the foregoing, a Subsidiary that is an Excluded Subsidiary
shall be deemed to be a Material Subsidiary by reason of clause (ii) of this
definition only if such Excluded Subsidiary has Operating Profits for the period
of 4 consecutive Fiscal Quarters most recently ended prior to the date of
determination equal to or greater than 10% of Consolidating Operating Profits
for such period of 4 consecutive Fiscal Quarters.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Net Disposition Proceeds" means the aggregate proceeds received by the
Borrower or any of its Subsidiaries upon the disposition of any assets or
property (whether real, personal, mixed, tangible or intangible), including,
without limitation, any sale or disposition in connection with a securitization,
a sale-leaseback transaction or any similar arrangement, but only to the extent
that the aggregate amount of such proceeds received in any Fiscal Year
(excluding (i) proceeds received upon the disposition of Excluded Assets and
(ii) proceeds received upon the disposition of any asset or property that when
acquired was treated as a Permitted Investment to the extent the aggregate
amount of such proceeds does not exceed $25,000,000) exceeds $5,000,000 and
after deducting from the amount of such proceeds the sum of: (a) all reasonable
and customary costs and expenses incurred by the Borrower or any Subsidiary
directly in connection with such disposition; (b) all amounts actually set aside
as a reserve, in accordance with GAAP, against any liabilities under any
indemnification obligations associated with such disposition; (c) all taxes
actually paid or payable by the Borrower or such Subsidiary as a result of gain
recognized in connection with such disposition; and (d) any amount actually paid
by the Borrower or such Subsidiary to discharge, or cause the discharge of, any
Lien on such assets or property (to the extent such Lien was permitted by this
Agreement).
"Net Income" means, as applied to any Person for any period, the
aggregate amount of net income of such Person, after taxes, for such period, as
determined in accordance with generally accepted accounting principles
consistently applied.
"Net Proceeds of Debt" means any proceeds received by the Borrower or
any of its Subsidiaries in respect of the incurrence or the private or public
issuance of Debt of the Borrower
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15
or any of its Subsidiaries, but only to the extent that the aggregate amount of
such proceeds received in any Fiscal Year exceeds $5,000,000 and after deducting
therefrom all reasonable and customary costs and expenses incurred by the
Borrower or any such Subsidiary directly in connection with the incurrence or
issuance of such Debt.
"Net Proceeds of Stock" means any proceeds received by the Borrower or
any of its Subsidiaries in respect of the private or public issuance of Stock of
the Borrower or any of its Subsidiaries, but only to the extent that the
aggregate amount of such proceeds received in any Fiscal Year exceeds $5,000,000
and after deducting therefrom all reasonable and customary costs and expenses
incurred by the Borrower or any such Subsidiary directly in connection with the
issuance of such Stock.
"Non-Convertible Redeemable Preferred Stock" of any Person means
Redeemable Preferred Stock that is redeemable, either in whole or in part, into
any property (including, without limitation, cash) other than the capital stock
of the Person.
"Nonredeemable Capital Stock" means any nonredeemable capital stock of
the Borrower or any Subsidiary (to the extent issued to a Person other than the
Borrower), whether common or preferred.
"Notes" shall mean the Notes of the Borrower payable to the order of
the respective Banks, evidencing the maximum principal indebtedness of the
Borrower under the Commitments, in substantially the form of Exhibit A, either
as originally executed or as they may be from time to time supplemented,
modified, amended, renewed or extended, or any or all of them, as the context
shall require.
"Notice of Borrowing" has the meaning set forth in Section 2.02(a).
"Notice of Continuation or Conversion" has the meaning set forth in
Section 2.03.
"Operating Profits" means, as applied to any Person for any period, the
pre-tax operating income of such Person for such period, as determined in
accordance with generally accepted accounting principles consistently applied.
"Participant" has the meaning set forth in Section 9.07(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Performance Pricing Determination Date" has the meaning set forth in
Section 2.06(a).
"Permitted Acquisition" means any Acquisition by the Borrower or a
Subsidiary of any business which is engaged in the same or related line of
business as the Borrower and its Subsidiaries, with respect to which each of the
following requirements shall have been satisfied:
(a) as of the closing of any Acquisition, the Acquisition has
been approved and recommended by the board of directors of the Person to be
acquired or from which such business is to be acquired;
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16
(b) as of the closing of any Acquisition, after giving effect
to such Acquisition, the acquiring party must not be "insolvent" and the
Borrower and its Consolidated Subsidiaries, on a consolidated basis, must not be
"insolvent" (as "insolvent" is defined in Section 4.14); and
(c) as of the closing of any Acquisition, no Default shall
exist or occur as a result of, and after giving effect to, such Acquisition.
"Permitted Investment" means any investment by the Borrower or any
Subsidiary made after the Closing Date to the extent the aggregate cost of
investments so made after the Closing Date does not exceed $50,000,000.
"Person" means an individual, a corporation, a partnership, an
unincorporated association, a trust or any other entity or organization,
including, but not limited to, a government or political subdivision or an
agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code and is either (i) maintained by a member of the
Controlled Group for employees of any member of the Controlled Group or (ii)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding five plan years made
contributions.
"Prime Rate" refers to that interest rate so denominated and set by
Wachovia from time to time as an interest rate basis for borrowings. The Prime
Rate is but one of several interest rate bases used by Wachovia. Wachovia lends
at interest rates above and below the Prime Rate.
"Properties" means all real property owned, leased or otherwise used or
occupied by the Borrower or any Subsidiary, wherever located.
"Quarterly Payment Date" means each March 31, June 30, September 30 and
December 31.
"Redeemable Preferred Stock" of any Person means as of any date any
preferred stock issued by such Person which is at any time within one (1) year
of such date either (i) mandatorily redeemable (by sinking fund or similar
payments or otherwise) or (ii) redeemable at the option of the holder thereof.
"Related Fund" means, with respect to any Bank that is a fund that
invests in lender loans, any other fund that invests in lender loans and is
advised or managed by the same investment advisor as such Bank.
"Required Banks" means at any time Banks having at least 51% of the
aggregate amount of the Commitments or, if the Commitments are no longer in
effect, Banks holding at least 51% of the aggregate outstanding principal amount
of the Loans.
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17
"Restricted Payment" means (a) any dividend or other distribution on
any shares of the Borrower's Capital Stock (except dividends payable solely in
shares of its Capital Stock), and (b) any payment (whether in the form of money
or property) made by the Borrower or any Subsidiary on account of the purchase,
redemption, retirement or acquisition by the Borrower or such Subsidiary of any
shares of its Capital Stock (and, as to any payment made in the form of
property, the amount of such payment shall be deemed to be equal to the fair
market value of such property).
"Security" has the meaning assigned to such term in Section 2(l) of the
Securities Act of 1933, as amended.
"Stations" means those television broadcasting stations identified on
Schedule 1.01B hereto.
"Stock" of any Person means any Capital Stock, other equity Security,
membership interest or other equity interest, of any classification, of such
Person or any Subsidiary of such Person (to the extent issued to a Person other
than such Person or a Wholly Owned Subsidiary of such Person).
"Stock Payment" means any payment made by the Borrower on account of
the purchase, redemption, retirement or acquisition by such Borrower of any
shares of its Capital Stock
"Stockholders' Equity" means, at any time, the shareholders' equity of
the Borrower and its Consolidated Subsidiaries, as set forth or reflected on the
most recent consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries prepared in accordance with generally accepted accounting
principles consistently applied, but excluding any Non-Convertible Redeemable
Preferred Stock of the Borrower or any of its Consolidated Subsidiaries.
Shareholders' equity would generally include, but not be limited to (i) the par
or stated value of all outstanding Nonredeemable Capital Stock plus paid in
capital, (ii) capital surplus, (iii) retained earnings, (iv) unearned stock
compensation, (v) cumulative foreign currency translation adjustments and (vi)
subtracting items such as (A) purchases of treasury stock, (B) unrealized
investment losses, (C) receivables due from an employee stock ownership plan and
(D) employee stock ownership plan debt guarantees, provided, however, that
Stockholders' Equity shall exclude unrealized gains and losses resulting from
adjusting the book value of securities from a cost basis to a market basis in
accordance with Financial Accounting Standards Board Statement No. 115.
"Subsidiary" means any corporation or other entity (including, without
limitation, Cosmos) of which securities or other ownership interests having
ordinary voting power to elect a majority of the board of directors or other
persons performing similar functions are at the time directly or indirectly
owned by the Borrower.
"Termination Date" shall mean March ___, 2002, as such date may be
extended from time to time in accordance with Section 2.05(b).
"Third Parties" means all lessees, sublessees, licensees and other
users of the Properties, excluding those users of the Properties in the ordinary
course of the Borrower's business and on a temporary basis.
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18
"Total Assets" of any Person means, at any time, the total assets of
such Person, as set forth or reflected or as should be set forth or reflected on
the most recent balance sheet of such Person, prepared in accordance with GAAP.
"Transferee" has the meaning set forth in Section 9.07(d).
"Unused Commitment" means at any date, with respect to any Bank, an
amount equal to its Commitment less the aggregate outstanding principal amount
of its Advances on such day.
"Voting Stock" means Securities of any class or classes, the holders of
which are ordinarily , in the absence of contingencies, entitled to elect a
majority of the corporate directors (or Persons performing similar functions).
"Wachovia" means Wachovia Bank, N.A., a national banking association
and its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the shares of
capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the Borrower.
Section 1.02 Accounting Terms and Determinations. Unless otherwise
specified herein, all terms of an accounting character used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles, applied on a basis
consistent (except for changes concurred in by the Borrower's independent public
accountants or otherwise required by a change in generally accepted accounting
principles) with the most recent audited consolidated financial statements of
the Borrower and its Consolidated Subsidiaries delivered to the Banks, unless
with respect to any such change concurred in by the Borrower's independent
public accountants or required by generally accepted accounting principles, in
determining compliance with any of the provisions of this Agreement or any of
the other Loan Documents: (i) the Borrower shall have objected to determining
such compliance on such basis at the time of delivery of such financial
statements, or (ii) the Required Banks shall so object in writing within 30 days
after the delivery of such financial statements, in either of which events such
calculations shall be made on a basis consistent with those used in the
preparation of the latest financial statements as to which such objection shall
not have been made (which, if objection is made in respect of the first
financial statements delivered under Section 5.01 hereof, shall mean the
financial statements referred to in Section 4.04).
Section 1.03 References. Unless otherwise indicated, references in this
Agreement to "Sections" are references to sections hereof and references in this
Agreement to "Articles" are references to articles hereof.
ARTICLE II.
THE CREDITS
Section 2.01 Commitments to Lend. Each Bank severally agrees, on the
terms and conditions set forth herein, to make Advances to the Borrower from
time to time before the Termination Date; provided that, immediately after each
such Advance is made, the aggregate
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19
outstanding principal amount of Advances by such Bank shall not exceed the
amount of its Commitment, and provided further that the aggregate principal
amount of all Advances at any one time outstanding shall not exceed the
aggregate amount of the Commitments of all of the Banks at such time. Each
Borrowing under this Section shall be in an aggregate principal amount of: (i)
$1,000,000 or any larger multiple of $1,000,000, if such Borrowing consists of
Advances made as Euro-Dollar Loans; and (ii) $1,000,000 or any larger multiple
of $1,000,000, if such Borrowing consists of Advances made as Base Rate Loans
(except that any such Borrowing may be in the aggregate amount of the Unused
Commitments) and shall be made from the several Banks ratably in proportion to
their respective Commitments. Within the foregoing limits, the Borrower may
borrow under this Section 2.01, repay or, to the extent permitted by Section
2.10, prepay Advances and reborrow under this Section 2.01 at any time before
the Termination Date.
Section 2.02 Method of Borrowing Loans.
(a) The Borrower shall give the Agent notice in the form
attached hereto as Exhibit G (a "Notice of Borrowing") prior to 11:00
A.M. (Atlanta, Georgia time) on the Domestic Business Day of each Base
Rate Borrowing and at least 3 Euro-Dollar Business Days before each
Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a
Domestic Business Day in the case of a Base Rate Borrowing or
a Euro-Dollar Business Day in the case of a Euro-Dollar
Borrowing,
(ii) the aggregate amount of such Borrowing, and
(iii) whether the Advances comprising a Borrowing are
to be Base Rate Loans or Euro-Dollar Loans, and the duration
of the Interest Period applicable thereto, subject to the
provisions of the definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the Agent shall
promptly notify each Bank of the contents thereof and of such Bank's
ratable share of such Borrowing, and such Notice of Borrowing shall not
thereafter be revocable by the Borrower.
(c) Not later than 1:00 p.m. (Atlanta, Georgia time) on the
date of each Borrowing, referenced in the Notice of Borrowing, each
Bank shall (except as provided in subsection (d) of this Section) make
available its ratable share of such Borrowing in Federal or other funds
immediately available in Atlanta, Georgia, to the Agent at its address
referred to in or specified pursuant to Section 9.01. Unless the Agent
determines that any applicable condition specified in Article III has
not been satisfied, the Agent will make the funds so received from the
Banks available to the Borrower at the Agent's aforesaid address.
Unless the Agent receives notice from a Bank, at the Agent's address
referred to in Section 9.01, no later than 4:00 P.M. (local time at
such address) on the Domestic Business Day before the date of the
applicable Borrowing stating that such Bank will not make the
applicable Advance in connection with such Borrowing, the Agent shall
be entitled to assume that such Bank will make the Advance in
connection with such Borrowing, and, in reliance on such assumption,
the Agent may (but shall not
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20
be obligated to) make available such Bank's ratable share of such
Borrowing to the Borrower for the account of such Bank. If the Agent
makes such Bank's ratable share available to the Borrower and such Bank
does not in fact make its ratable share of such Borrowing available on
such date the Agent shall be entitled to recover such Bank's ratable
share from such Bank or the Borrower (and for such purpose shall be
entitled to charge such amount to any account of the Borrower
maintained with the Agent), together with interest thereon for each day
during the period from the date of such Borrowing until such sum shall
be paid in full at a rate per annum equal to the rate at which the
Agent determines that it obtained (or could have obtained) overnight
Federal funds to cover such amount for each such day during such
period, provided that any such payment by the Borrower of such Bank's
ratable share and interest thereon shall be without prejudice to any
rights that the Borrower may have against such Bank. If such Bank shall
repay to the Agent such corresponding amount, such amount so repaid
shall constitute such Bank's Advance included in such borrowing for
purposes of this Agreement.
(d) If any Bank makes a new Advance hereunder on a day on
which the Borrower is to repay all or any part of an outstanding
Advance from such Bank, such Bank shall apply the proceeds of its new
Advance to make such repayment and only an amount equal to the
difference (if any) between the amount being borrowed and the amount
being repaid shall be made available by such Bank to the Agent as
provided in subsection (c) of this Section, or remitted by the Borrower
to the Agent as provided in Section 2.12, as the case may be.
(e) Notwithstanding anything to the contrary contained in this
Agreement, (i) no Euro-Dollar Borrowing may be made if there shall have
occurred a Default or an Event of Default, which Default or Event of
Default shall not have been cured or waived in writing and (ii) there
may be no more than 8 different Interest Periods for Loans outstanding
at the same time (for which purpose Interest Periods described in
different numbered clauses of the definition of the term "Interest
Period" shall be deemed to be different Interest Periods even if they
are coterminous).
(f) In the event that a Notice of Borrowing fails to specify
whether the Advances comprising such Borrowing are to be Base Rate
Loans or Euro-Dollar Loans, such Advances shall be made as Base Rate
Loans. If the Borrower is otherwise entitled under this Agreement to
repay any Advances maturing at the end of an Interest Period applicable
thereto with the proceeds of a new Borrowing and the Borrower fails to
repay such Advances using its own moneys and fails to give a Notice of
Borrowing in connection with a new corresponding Borrowing, a new
Borrowing shall be deemed to be made on the date such Advances mature
in an amount equal to the principal amount of the Advances so maturing,
and the Advances comprising such new Borrowing shall be Base Rate
Loans.
Section 2.03 Continuation and Conversion Elections. By delivering a
notice (a "Notice of Continuation or Conversion"), which shall be substantially
in the form of Exhibit H, to the Agent on or before 11:00 A.M., Atlanta, Georgia
time, on a Domestic Business Day (or Euro-Dollar Business Day, in the case of
Euro-Dollar Loans outstanding), the Borrower may from time to time irrevocably
elect, by notice on the same Domestic Business Day, in the case of
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21
Base Rate Loans or 3 Euro-Dollar Business Days, in the case of Euro-Dollar
Loans, that all, or any portion in an aggregate principal amount of $1,000,000
or any larger integral multiple of $1,000,000 be, (i) in the case of Base Rate
Loans, converted into Euro-Dollar Loans or (ii) in the case of Euro-Dollar
Loans, converted into Base Rate Loans or continued as Euro-Dollar Loans (in the
absence of delivery of a Notice of Continuation or Conversion with respect to
any Euro-Dollar Loan at least 3 Euro-Dollar Business Days before the last day of
the then current Interest Period with respect thereto, such Euro-Dollar Loan
shall, on such last day, automatically convert to a Base Rate Loan); provided,
however, that (x) each such conversion or continuation shall be pro rated among
the applicable outstanding Loans of all Banks that have made such Loans, and (y)
no portion of the outstanding principal amount of any Loans may be continued as,
or be converted into, any Euro-Dollar Loan when any Default has occurred and is
continuing.
Section 2.04 Notes.
(a) Upon request of any Bank, made through the Agent, the
Loans of each Bank may be evidenced by a single Note payable to the
order of such Bank for the account of its Lending Office in an amount
equal to the original principal amount of such Bank's Commitment.
(b) Upon receipt of any Bank's Notes pursuant to Section 3.01,
the Agent shall deliver such Notes to such Bank. Each Bank shall
record, and prior to any transfer of its Notes shall endorse on the
schedules forming a part thereof appropriate notations to evidence, the
date, amount and maturity of, and effective interest rate for, each
Loan made by it, the date and amount of each payment of principal made
by the Borrower with respect thereto, and such schedules of each such
Bank's Notes shall constitute rebuttable presumptive evidence of the
respective principal amounts owing and unpaid on such Bank's Notes;
provided that the failure of any Bank to make, or any error in making,
any such recordation or endorsement shall not affect the obligation of
the Borrower hereunder or under the Notes or the ability of any Bank to
assign its Notes. Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Notes and to attach to and make a part of
any Note a continuation of any such schedule as and when required.
Section 2.05 Maturity of Loans.
(a) Each Loan shall mature, and the principal amount thereof
shall be due and payable on, the Termination Date.
(b) Upon the written request of the Borrower, which request
shall be delivered to the Agent at least 30 days prior to the then
effective Termination Date, the Banks shall have the option (without
any obligation whatsoever so to do) of extending the Termination Date
for additional periods of 364 days each. Each Bank shall notify the
Borrower and the Agent at least 10 days prior to the then effective
Termination Date whether or not it chooses to extend the Termination
Date for such an additional 364 day period (but any Bank which fails to
give such notice within such period shall be deemed not to have
extended); provided, that the Termination Date shall not be extended
with respect to any of the Banks unless:
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(i) the Required Banks are willing to extend the
Termination Date; and
(ii) on or before the then effective Termination Date
(determined prior to giving effect to such extension), as to
the Commitment of any Bank which gave notice that it chooses
not to extend, or which is deemed pursuant to the foregoing
not to have extended (any such Bank being a "Terminating
Bank"), one of the following shall occur:
(x) the remaining Banks shall purchase
ratable assignments (without any obligation so to do) from
such Terminating Bank (in the form of an LSTA Assignment) in
accordance with their respective percentage of the remaining
aggregate Commitments; provided, that, such Banks shall be
provided such opportunity (which opportunity shall allow such
Banks at least 3 Domestic Business Days in which to make a
decision) prior to the Borrower finding another Bank pursuant
to the immediately succeeding clause (y); and, provided,
further, that, should any of the remaining Banks elect not to
purchase such an assignment, then, such other remaining Banks
shall be entitled to purchase an assignment from any
Terminating Bank which includes the ratable interest that was
otherwise available to such non-purchasing remaining Bank or
Banks, as the case may be, or
(y) the Borrower shall find another Bank,
acceptable to the Agent, willing to accept an assignment from
such Terminating Bank (in the form of an LSTA Assignment) on
or before the then effective Termination Date (determined
prior to giving effect to such extension), or
(z) the Borrower shall reduce the aggregate
Commitments in an amount equal to the Commitment of any such
Terminating Bank.
Section 2.06 Interest Rates.
(a) "Applicable Margin" means:
(i) for the period commencing on the Closing Date to
and including the first Performance Pricing Determination
Date, (x) for any Base Rate Loan, 0%, and (y) for any
Euro-Dollar Loan, 0.625%; and
(ii) from and after the first Performance Pricing
Determination Date, (x) for any Base Rate Loan, 0% and (y) for
each Euro-Dollar Loan, the percentage determined on each
Performance Pricing Determination Date by reference to the
table set forth below as to such type of Loan and the Leverage
Ratio for the quarterly period ending immediately prior to
such Performance Pricing Determination Date (determined on the
basis of the period of 4 consecutive Fiscal Quarters then
ended).
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LEVERAGE RATIO APPLICABLE MARGIN
-------------- -----------------
Less than or equal to 0.625%
1.0 to 1.0
Less than or equal to 0.750%
1.5 to 1.0 but greater
than 1.0 to 1.0
Less than or equal to 0.875%
2.0 to 1.0 but greater
than 1.5 to 1.0
Greater than 2.0 to 1.0 1.125%
In determining interest for purposes of this Section 2.06 and fees for
purposes of Section 2.07, the Borrower and the Banks shall refer to the
Borrower's most recent consolidated quarterly and annual (as the case may be)
financial statements delivered pursuant to Section 5.01(a) or (b), as the case
may be. If such financial statements require a change in interest pursuant to
this Section 2.06 or fees pursuant to Section 2.07, the Borrower shall deliver
to the Agent, along with such financial statements, a notice to that effect,
which notice shall set forth in reasonable detail the calculations supporting
the required change. The "Performance Pricing Determination Date" is the date
which is 60 days after the end of each Fiscal Quarter. Any such required change
in interest and fees shall become effective on such Performance Pricing
Determination Date, and shall be in effect until the next Performance Pricing
Determination Date, provided that: (i) for Euro-Dollar Loans, changes in
interest shall only be effective for Interest Periods commencing on or after the
Performance Pricing Determination Date; and (ii) no fees or interest shall be
decreased pursuant to this Section 2.06 or Section 2.07 if a Default is in
existence on the Performance Pricing Determination Date.
(b) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made
until it becomes due, at a rate per annum equal to the Base Rate for
such day plus the Applicable Margin. Such interest shall be payable on
each Quarterly Payment Date while such Base Rate Loan is outstanding
and on the date such Base Rate Loan is converted to a Euro-Dollar Loan.
Any overdue principal of and, to the extent permitted by applicable
law, overdue interest on any Base Rate Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to
the Default Rate.
(c) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the sum of the
Applicable Margin plus the applicable Adjusted London Interbank Offered
Rate for such Interest Period. Such interest shall be payable for each
Interest Period on the last day thereof and, if such Interest Period is
longer than 3 months, at intervals of 3 months after the first day
thereof. Any overdue principal of and, to the extent permitted by law,
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overdue interest on any Euro-Dollar Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to the
Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upwards,
if necessary, to the next higher 1/100th of 1%) by dividing (i) the applicable
London Interbank Offered Rate for such Interest Period by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Euro-Dollar Loan
means for the Interest Period of such Euro-Dollar Loan, the rate per annum
determined on the basis of the offered rate for deposits in Dollars of amounts
equal or comparable to the principal amount of such Euro-Dollar Loan offered for
a term comparable to such Interest Period, which rates appear on Telerate Page
3750 effective as of 11:00 A.M., London time, 2 Euro-Dollar Business Days prior
to the first day of such Interest Period, provided that if no such offered rates
appear on such page, the "London Interbank Offered Rate" for such Interest
Period will be the arithmetic average (rounded upward, if necessary, to the next
higher 1/100th of 1%) of rates quoted by not less than 2 major Banks in New York
City, selected by the Agent, at approximately 10:00 A.M., New York City time, 2
Euro-Dollar Business Days prior to the first day of such Interest Period, for
deposits in Dollars offered by leading European banks for a period comparable to
such Interest Period in an amount comparable to the principal amount of such
Euro-Dollar Loan.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member Bank of the Federal
Reserve System in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents). The Adjusted London Interbank Offered Rate
shall be adjusted automatically on and as of the effective date of any change in
the Euro-Dollar Reserve Percentage.
(d) The Agent shall determine each interest rate applicable to
the Loans hereunder. The Agent shall give prompt notice to the Borrower
and the Banks by telecopier of each rate of interest so determined, and
its determination thereof shall be conclusive in the absence of
manifest error.
(e) After the occurrence and during the continuance of an
Event of Default, the principal amount of the Loans (and, to the extent
permitted by applicable law, all accrued interest thereon) shall bear
interest at the Default Rate.
Section 2.07 Fees.
(a) The Borrower shall pay to the Agent, for the ratable
account of each Bank, a commitment fee, calculated in the manner
provided in the last paragraph of Section 2.06(a)(ii), on the average
daily amount of such Bank's Unused Commitment at a rate per annum equal
to: (i) for the period commencing on the Closing Date to and including
the first Performance Pricing Determination Date, 0.125%; and (ii) from
and after the first
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25
Performance Pricing Determination Date, the percentage determined on
each Performance Pricing Determination Date by reference to the table
set forth below and the Leverage Ratio for the quarterly or annual
period ending immediately prior to such Performance Pricing
Determination Date:
LEVERAGE RATIO COMMITMENT FEE
-------------- --------------
Less than or equal to
1.0 to 1.0 0.125%
Less than or equal to
1.5 to 1.0 but greater
than 1.0 to 1.0 0.175%
Less than or equal to
2.0 to 1.0 but greater
than 1.50 to 1.0 0.225%
Greater than 2.0 to 1.0 0.275%
Such commitment fees shall accrue from and including the Closing Date
to but excluding the Termination Date and shall be payable on each Quarterly
Payment Date and on the Termination Date.
(b) The Borrower shall pay to the Agent on the Closing Date,
for the account and sole benefit of the Agent, a structuring fee equal
to 0.25% of the aggregate amount of the Commitments.
Section 2.08 Optional Termination or Reduction of Commitments. The
Borrower may, upon at least 3 Domestic Business Days' notice to the Agent,
terminate at any time, or proportionately reduce from time to time by an
aggregate amount of at least $1,000,000 or any larger multiple of $1,000,000 the
Unused Commitments. If the Commitments are terminated in their entirety, all
accrued fees shall be payable on the effective date of such termination. A
notice of reduction or termination of the Commitments hereunder, once given,
shall not thereafter be revocable by the Borrower.
Section 2.09 Mandatory Reduction and Termination of Commitments.
(a) The Commitments shall terminate on the Termination Date
and any Loans then outstanding (together with accrued interest thereon)
shall be due and payable on such date.
(b) In the event and on each occasion that the Borrower or any
of its Subsidiaries shall issue any Stock or issue or incur any Debt,
the Borrower shall, concurrently with such issuance or incurrence,
immediately give notice to the Agent of such issuance or incurrence,
and the Commitments shall be reduced immediately in an amount equal to
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26
100% of the Net Proceeds of Stock (in the case of issuance of Stock) or
100% of the Net Proceeds of Debt (in the case of issuance or incurrence
of Debt).
(c) In the event and on each occasion that the Borrower or any
of its Subsidiaries shall sell or otherwise dispose of any assets or
property (whether real, personal, mixed, tangible or intangible),
including, without limitation, any sale or disposition in connection
with a securitization, a sale-leaseback transaction or any similar
arrangement, the Borrower shall, concurrently with such sale or
disposition, immediately give notice to the Administrative Agent of
such sale or disposition, and the Commitments shall be reduced
immediately in an amount equal to 100% of the Net Disposition Proceeds.
Section 2.10 Optional Prepayments of Advances.
(a) The Borrower may, upon at least 1 Domestic Business Day's
notice to the Agent, prepay any Base Rate Loan in whole at any time, or
from time to time in part in amounts aggregating at least $1,000,000 or
any larger multiple of $1,000,000, by paying the principal amount to be
prepaid together with accrued interest thereon to the date of
prepayment. Each such optional prepayment shall be applied to prepay
ratably the Base Rate Loans of the several Banks.
(b) Except as provided in Section 8.02, the Borrower may not
prepay all or any portion of the principal amount of any Euro-Dollar
Loan, except on the last day of the applicable Interest Period.
(c) Upon receipt of a notice of prepayment pursuant to this
Section, the Agent shall promptly notify each Bank of the contents
thereof and of such Bank's ratable share of such prepayment and such
notice shall not thereafter be revocable by the Borrower.
Section 2.11 Mandatory Prepayments.
(a) On each date on which the Commitments are reduced pursuant
to Section 2.08 or Section 2.09, the Borrower shall repay or prepay
such principal amount of the outstanding Loans, if any (together with
interest accrued thereon and any amounts due under Section 8.05(a)), as
may be necessary so that after such payment the aggregate unpaid
principal amount of the Loans does not exceed the aggregate amount of
the Commitments as then reduced. Each such payment or prepayment shall
be applied to repay or prepay ratably the Loans of the several Banks;
provided, that such prepayment shall be applied, first to Base Rate
Loans and second to Euro-Dollar Loans outstanding on the date of such
prepayment (in direct order of maturity).
(b) In the event that the aggregate principal amount of all
Loans at any one time outstanding shall at any time exceed the
aggregate amount of the Commitments of all of the Banks at such time,
the Borrower shall immediately repay (in the inverse order of maturity)
so much of the Loans as is necessary in order that the aggregate
principal amount of the Loans thereafter outstanding shall not exceed
the aggregate amount of the Commitments of all of the Banks at such
time.
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Section 2.12 General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of, and
interest on, the Loans and of fees hereunder, not later than 11:00 A.M.
(Atlanta, Georgia time) on the date when due, in Federal or other funds
immediately available in Atlanta, Georgia, to the Agent at its address
referred to in Section 9.01. The Agent will promptly distribute to each
Bank its ratable share of each such payment received by the Agent for
the account of the Banks.
(b) Whenever any payment of principal of, or interest on, the
Base Rate Loans or of fees hereunder shall be due on a day which is not
a Domestic Business Day, the date for payment thereof shall be extended
to the next succeeding Domestic Business Day. Whenever any payment of
principal of, or interest on, the Euro-Dollar Loans shall be due on a
day which is not a Euro-Dollar Business Day, the date for payment
thereof shall be extended to the next succeeding Euro-Dollar Business
Day unless such Euro-Dollar Business Day falls in another calendar
month, in which case the date for payment thereof shall be the next
preceding Euro-Dollar Business Day. If the date for any payment of
principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(c) All payments of principal, interest and fees and all other
amounts to be made by the Borrower pursuant to this Agreement with
respect to any Loan or fee relating thereto shall be paid without
deduction for, and free from, any tax, imposts, levies, duties,
deductions, or withholdings of any nature now or at anytime hereafter
imposed by any governmental authority or by any taxing authority
thereof or therein excluding in the case of each Bank, taxes imposed on
or measured by its net income, and franchise taxes imposed on it, by
the jurisdiction under the laws of which such Bank is organized or any
political subdivision thereof and, in the case of each Bank, taxes
imposed on its income, and franchise taxes imposed on it, by the
jurisdiction of such Bank's applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, imposts, levies,
duties, deductions or withholdings of any nature being "Taxes"). In the
event that the Borrower is required by applicable law to make any such
withholding or deduction of Taxes with respect to any Loan or fee or
other amount, the Borrower shall pay such deduction or withholding to
the applicable taxing authority, shall promptly furnish to any Bank in
respect of which such deduction or withholding is made all receipts and
other documents evidencing such payment and shall pay to such Bank
additional amounts as may be necessary in order that the amount
received by such Bank after the required withholding or other payment
shall equal the amount such Bank would have received had no such
withholding or other payment been made. If no withholding or deduction
of Taxes are payable in respect of any Loan or fee relating thereto,
the Borrower shall furnish any Bank, at such Bank's request, a
certificate from each applicable taxing authority or an opinion of
counsel acceptable to such Bank, in either case stating that such
payments are exempt from or not subject to withholding or deduction of
Taxes. If the Borrower fails to provide such original or certified copy
of a receipt evidencing payment of Taxes or certificate(s) or opinion
of counsel of exemption, the Borrower hereby agrees to compensate such
Bank for, and indemnify them with respect to, the tax consequences of
the Borrower's failure to provide evidence of tax payments or tax
exemption.
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In the event any Bank receives a refund of any Taxes paid by the
Borrower pursuant to this Section 2.12, it will pay to the Borrower the amount
of such refund promptly upon receipt thereof; provided, however, if at any time
thereafter it is required to return such refund, the Borrower shall promptly
repay to it the amount of such refund.
Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.12 shall (i) be applicable with respect to any Participant,
Assignee or other Transferee, and any calculations required by such provisions
shall be made based upon the circumstances of such Participant, Assignee or
other Transferee, and (ii) constitute a continuing agreement and shall survive
the termination of this Agreement and the payment in full or cancellation of the
Notes.
Section 2.13 Computation of Interest and Fees. Interest on Base Rate
Loans shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day). Interest on Euro-Dollar Loans shall be computed on the basis of a year of
360 days and paid for the actual number of days elapsed, calculated as to each
Interest Period from and including the first day thereof to but excluding the
last day thereof. Facility fees and any other fees payable hereunder shall be
computed on the basis of a year of 360 days and paid for the actual number of
days elapsed (including the first day but excluding the last day).
ARTICLE III.
CONDITIONS TO BORROWINGS
Section 3.01 Conditions to First Borrowing. The obligation of each Bank
to make any Loan on the occasion of the first Borrowing is subject to the
satisfaction of the conditions set forth in Section 3.02 and the following
additional conditions:
(a) receipt by the Agent from each of the parties hereto of
either (i) a duly executed counterpart of this Agreement signed by such
party or (ii) a facsimile transmission stating that such party has duly
executed a counterpart of this Agreement and sent such counterpart to
the Agent;
(b) receipt by the Agent of the duly executed Notes for the
account of each Bank complying with the provisions of Section 2.04;
(c) receipt by the Agent of an opinion (together with any
opinions of local counsel relied on therein) of Xxxxxx X. Xxxxxxxx,
General Counsel of the Borrower, substantially in the form of Exhibit B
hereto and covering such additional matters relating to the
transactions contemplated hereby as any Bank may reasonably request;
(d) receipt by the Agent of an opinion of Xxxxxx Xxxxxxx
Xxxxxxxxx & Xxxx, PLLC, special counsel for the Agent, substantially in
the form of Exhibit C hereto and covering such additional matters
relating to the transactions contemplated hereby as the Agent may
reasonably request;
(e) receipt by the Agent of a certificate, dated the date of
the first Borrowing, substantially in the form of Exhibit D hereto,
signed by a principal financial officer of the
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Borrower, to the effect that (i) no Default has occurred and is
continuing on the date of the first Borrowing; and (ii) the
representations and warranties of the Borrower contained in Article IV
hereof are true on and as of the date of the first Borrowing hereunder;
(f) receipt by the Agent of all documents which the Agent may
reasonably request relating to the existence of the Borrower, the
corporate authority for and the validity of this Agreement and the
Notes, and any other matters relevant hereto, all in form and substance
satisfactory to the Agent, including without limitation a certificate
of incumbency of the Borrower, signed by the Secretary or an Assistant
Secretary of the Borrower, substantially in the form of Exhibit E
hereto, certifying as to the names, true signatures and incumbency of
the officer or officers of the Borrower authorized to execute and
deliver the Loan Documents, and certified copies of the following
items: (i) the Borrower's Articles of Incorporation, (ii) the
Borrower's Bylaws, (iii) a certificate of the Secretary of State of the
State of South Carolina as to the existence of the Borrower as a South
Carolina corporation, and (iv) the action taken by the Board of
Directors of the Borrower authorizing the Borrower's execution,
delivery and performance of this Agreement, the Notes and the other
Loan Documents to which the Borrower is a party; and
(g) receipt by the Agent of all documents which the Agent may
reasonably request relating to the existence of Cosmos, the corporate
authority for and the validity of the Guaranty, and any other matters
relevant hereto, all in form and substance satisfactory to the Agent,
including without limitation a certificate of incumbency of Cosmos,
signed by the Secretary or an Assistant Secretary of Cosmos,
substantially in the form of Exhibit I hereto, certifying as to the
names, true signatures and incumbency of the officer or officers of
Cosmos authorized to execute and deliver the Guaranty, and certified
copies of the following items: (i) Cosmos' Articles of Incorporation,
(ii) Cosmos' Bylaws, (iii) a certificate of the Secretary of State of
the State of South Carolina as to the existence of Cosmos as a South
Carolina corporation, and (iv) the action taken by the Board of
Directors of Cosmos authorizing Cosmos' execution, delivery and
performance of the Guaranty and the other Loan Documents to which
Cosmos is a party.
Section 3.02 Conditions to All Borrowings. The obligation of each Bank
to make an Advance on the occasion of each Borrowing is subject to the
satisfaction of the following conditions:
(a) receipt by the Agent of a Notice of Borrowing;
(b) the fact that, immediately before and after such
Borrowing, no Default shall have occurred and be continuing;
(c) the fact that, immediately after such Borrowing, the
aggregate outstanding principal amount of the Advances of all the Banks
will not exceed the aggregate amount of the Commitments of all the
Banks as of such date; and
(d) the fact that, the representations and warranties of the
Borrower contained in Article IV of this Agreement shall be true on and
as of the date of each Borrowing
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(except to the extend any such representation or warranty is expressly
made as of a prior date).
Each Borrowing hereunder shall be deemed to be a representation and
warranty by the Borrower on the date of such Borrowing as the case may be, as to
the facts specified in clauses (b), (c) and (d) of this Section; provided, that
(i) if such Notice of Continuation or Conversion is to a Euro-Dollar Loan, such
Notice of Continuation or Conversion shall be deemed to be such a representation
and warranty by the Borrower only as to the matters set forth in paragraphs (b)
and (d) above, and (ii) if such Borrowing is a Base Rate Borrowing or if such
Notice of Continuation or Conversion is to a Base Rate Loan, such Borrowing or
Notice of Continuation or Conversion shall be deemed to be a representation and
warranty by the Borrower only as to the matters set forth in paragraph (d)
above.
Section 3.03 Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each Bank
shall be deemed to have consented to, approved or accepted or to be satisfied
with each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to the Banks unless an officer of the
Agent responsible for the transactions contemplated by this Agreement shall have
received notice from such Bank prior to the Closing Date, specifying its
objection thereto.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
Section 4.01 Corporate Existence and Power. The Borrower is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, is duly qualified to transact business
in every jurisdiction where, by the nature of its business, such qualification
is necessary, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
Section 4.02 Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of this
Agreement, the Notes and the other Loan Documents (i) are within the Borrower's
corporate powers, (ii) have been duly authorized by all necessary corporate
action, (iii) require no action by or in respect of, or filing with, any
governmental body, agency or official, (iv) do not contravene, or constitute a
default under, any provision of applicable law or regulation or of the
certificate of incorporation or by-laws of the Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Borrower or any of its Subsidiaries, and (v) do not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.
Section 4.03 Binding Effect. This Agreement constitutes a valid and
binding agreement of the Borrower enforceable in accordance with its terms, and
the Notes and the other Loan Documents, when executed and delivered in
accordance with this Agreement, will constitute valid and binding obligations of
the Borrower enforceable in accordance with their
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31
respective terms, provided that the enforceability hereof and thereof is subject
in each case to general principles of equity and to bankruptcy, insolvency and
similar laws affecting the enforcement of creditors' rights generally.
Section 4.04 Financial Information.
(a) The consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of December 31, 1999 and the related
consolidated statements of income, shareholders' equity and cash flows
for the Fiscal Year then ended, reported on by Ernst & Young LLP, and
the unaudited consolidated financial statements of the Borrower for the
Fiscal Year ended December 31, 2000, copies of which have been
delivered to each of the Banks, fairly present, in conformity with
generally accepted accounting principles, the consolidated financial
position of the Borrower and its Consolidated Subsidiaries as of such
dates and their consolidated results of operations and cash flows for
such periods.
(b) Since December 31, 1999, there has been no event, act,
condition or occurrence (other than those disclosed in any registration
statements or public reports filed by the Borrower with the Securities
and Exchange Commission prior to January 1, 2001) having, or which
could reasonably be expected to have, alone or in the aggregate, a
Material Adverse Effect.
Section 4.05 Litigation. There is no action, suit or proceeding
pending, or to the knowledge of the Borrower threatened, against or affecting
the Borrower or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official which, alone or in the aggregate, could
reasonably be expected to have a Material Adverse Effect or which in any manner
draws into question the validity or enforceability of, or could impair the
ability of the Borrower or any Guarantor to perform its obligations under, this
Agreement, the Notes or any of the other Loan Documents.
Section 4.06 Compliance with ERISA.
(a) The Borrower and each member of the Controlled Group have
fulfilled their obligations, if any, under the minimum funding
standards of ERISA and the Code with respect to each Plan and are in
compliance in all material respects with the presently applicable
provisions of ERISA and the Code, and have not incurred any liability
to the PBGC or a Plan under Title IV of ERISA.
(b) Neither the Borrower nor any member of the Controlled
Group is or ever has been obligated to contribute to any Multiemployer
Plan.
Section 4.07 Compliance with Laws; Payment of Taxes.
The Borrower and its Subsidiaries are in compliance with all applicable
laws, regulations and similar requirements of governmental authorities, except
where such compliance is being contested in good faith through appropriate
proceedings or where non-compliance is being contested in good faith through
appropriate proceedings or where non-compliance, alone or in the aggregate could
not reasonably be expected to have a Material Adverse Effect. There have been
filed on behalf of the Borrower and its Subsidiaries all Federal, state, local
and foreign
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32
income, excise, property and other tax returns which are required to be filed by
them and all taxes due pursuant to such returns or pursuant to any assessment
received by or on behalf of the Borrower or any Subsidiary have been paid. The
charges, accruals and reserves on the books of the Borrower and its Subsidiaries
in respect of taxes or other governmental charges are, in the opinion of the
Borrower, adequate. The Borrower has not given or been requested to give a
waiver of the statute of limitation relating to the payment of Federal, state,
local or foreign taxes.
Section 4.08 Subsidiaries. Each of the Borrower's Subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation, is duly qualified to transact business in
every jurisdiction where, by the nature of its business, such qualification is
necessary, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
Section 4.09 Not an Investment Company. Neither the Borrower nor any
Subsidiary is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
Section 4.10 Ownership of Property; Liens. Each of the Borrower and its
Subsidiaries has title to its Properties sufficient for the conduct of its
business, and none of such Property is subject to any Lien except as permitted
in Section 5.09.
Section 4.11 No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any agreement, instrument or
undertaking to which it is a party or by which it or any of its property is
bound which, alone or in the aggregate. No Default or Event of Default has
occurred and is continuing.
Section 4.12 Full Disclosure. All information heretofore furnished by
the Borrower to the Agent or any Bank for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all such information
hereafter furnished by the Borrower to the Agent or any Bank will be, true,
accurate and complete in every material respect or based on reasonable estimates
on the date as of which such information is stated or certified. The Borrower
has disclosed to the Banks in writing any and all facts which, alone or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
Section 4.13 Environmental Matters.
(a) Neither the Borrower nor any Subsidiary is subject to any
Environmental Liability which is likely to have a Material Adverse
Effect and neither the Borrower nor any Subsidiary has been designated
as a potentially responsible party under CERCLA or under any state
statute similar to CERCLA. None of the Properties has been identified
on any current or proposed (i) National Priorities List under 40 C.F.R.
ss. 300, (ii) CERCLIS list or (iii) any list arising from a state
statute similar to CERCLA.
(b) No Hazardous Materials have been or are being used,
produced, manufactured, processed, generated, stored, disposed of,
managed at, or shipped or transported to or from the Properties or are
otherwise present at, on, in or under the
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33
Properties, or, to the best of the knowledge of the Borrower, at or
from any adjacent site or facility, except for Hazardous Materials,
such as cleaning solvents, pesticides and other materials used,
produced, manufactured, processed, generated, stored, disposed of, and
managed in the ordinary course of business in compliance with all
applicable Environmental Requirements.
Section 4.14 Insolvency. After giving effect to the execution and
delivery of the Loan Documents and the making of the Loans under this Agreement,
the Borrower will not be "insolvent," within the meaning of such term as used in
O.C.G.A ss. 18-2-22, as amended from time to time, or as defined in ss. 101 of
Title 11 of the United States Code, as amended from time to time, or be unable
to pay its debts generally as such debts become due, or have an unreasonably
small amount of capital to engage in any business or transaction, whether
current or contemplated.
Section 4.15 Public Utility Holding Company Act. Neither the Borrower
nor any of its Subsidiaries is a "holding company", or a "subsidiary company" of
a "holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
Section 4.16 Capital Stock. All Capital Stock, debentures, bonds, notes
and all other securities of the Borrower and its Subsidiaries presently issued
and outstanding are validly and properly issued in accordance with all
applicable laws, including, but not limited to, the "Blue Sky" laws of all
applicable states and the federal securities laws. The issued shares of Capital
Stock of the Borrower's Wholly Owned Subsidiaries are owned by the Borrower free
and clear of any Lien or adverse claim. At least a majority of the issued shares
of capital stock of each of the Borrower's other Subsidiaries (other than Wholly
Owned Subsidiaries) is owned by the Borrower free and clear of any Lien or
adverse claim.
Section 4.17 Margin Stock. Neither the Borrower nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of purchasing or carrying any Margin Stock, and no part of the
proceeds of any Advance will be used to purchase or carry any Margin Stock or to
extend credit to others for the purpose of purchasing or carrying any Margin
Stock, or be used for any purpose which violates, or which is inconsistent with,
the provisions of Regulation T, U or X.
Section 4.18 No Forfeiture. Neither the Borrower nor any of its
Subsidiaries is engaged in or proposes to be engaged in the conduct of any
business or activity which could result in a Forfeiture Proceeding and no
Forfeiture Proceeding against any of them is pending or threatened.
Section 4.19 Broadcast Licenses and Operating Agreements.
(a) Each of the Borrower and the Subsidiaries owns, possesses
or has the right to use all of the patents, trademarks, service marks,
trade names, copyrights, licenses (including, without limitation,
Broadcast Licenses) and rights with respect thereto, necessary for the
present and currently planned future conduct of its business, without
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34
any known conflict with the rights of others (other than conflicts
which would not impair the use thereof by the Borrower and its
Subsidiaries).
(b) (i) Schedule 4.19 to this Agreement accurately and
completely lists and describes each main station Broadcast License of
the Borrower and each of the Subsidiaries related to the operation of
the Stations and each other material Broadcast License which is in
existence on the date of this Agreement and the expiration date and any
pending application with respect to each such Broadcast License;
(ii) each such Broadcast License is in full force and
effect without condition (other than customary conditions) and
has been duly and validly issued;
(iii) the Borrower, and each of the Subsidiaries, has
fulfilled and performed all of its obligations, if any, with
respect to such Broadcast Licenses; and
(iv) no event has occurred which (A) permits, or
after notice or lapse of time or both would permit, revocation
or termination of any such Broadcast License or (B) causes a
Material Adverse Effect or in the future may (so far as any
one or more of the Borrower and the Subsidiaries can now
reasonably foresee) cause a Material Adverse Effect in any of
the rights of the Borrower and the Subsidiaries thereunder.
Except to the extent required by the Communications Act of
1934, as amended, and the rules and regulations of the FCC, no
Broadcast License or other franchise or license held by any
one of the Borrower or the Subsidiaries requires that any
present stockholder, director, officer or employee of the
Borrower or any Subsidiary remain as such or that any transfer
of control of the Borrower must be approved by any public or
governmental body.
(c) The Broadcast Licenses described on Schedule 4.19 to this
Agreement constitute all of the material authorizations issued by the
FCC or any other governmental authority, necessary for the operation of
the business of the Borrower and each Subsidiary in the same manner as
it is currently conducted and as proposed to be conducted and such
Broadcast Licenses are validly issued and in full force and effect,
unimpaired by any act or omission by the Borrower or any Subsidiary.
Except as noted in Section 4.19(b)(iv), and except for rulemakings or
similar proceedings of general applicability to entities such as the
Borrower or to facilities such as the Stations, neither the Borrower
nor any Subsidiary is a party to any investigation (to the best of its
knowledge), notice of violation, order, or complaint issued by or
before the FCC or any other governmental authority, nor are there any
other proceedings involving any one or more of the Borrower and the
Subsidiaries by or before the FCC or any other governmental authority,
which investigation, notice, order, complaint or proceeding could in
any manner materially threaten or adversely affect such Broadcast
Licenses. Neither the Borrower nor any Subsidiary has knowledge of a
threat of any such investigation, notice of violation, order, complaint
or proceeding with respect thereto. The Borrower has no reason to
believe that the Broadcast Licenses listed and described on Schedule
4.19 to this Agreement will not be renewed for a full license term in
the ordinary course. Each of the Borrower and the Subsidiaries has
filed with the FCC and
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all other applicable governmental authorities all material reports,
applications, documents, instruments and information required to be
filed by it pursuant to applicable rules and regulations or requests of
the FCC or such applicable governmental authorities.
ARTICLE V.
COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment
hereunder or any amount payable hereunder or under any Note or any other Loan
Document remains unpaid:
Section 5.01 Information. The Borrower will deliver to each of the
Banks:
(a) as soon as available and in any event within 90 days after
the end of each Fiscal Year, a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of such Fiscal
Year and the related consolidated statements of income, shareholders'
equity and cash flows for such Fiscal Year, setting forth in each case
in comparative form the figures for the previous fiscal year, all
certified by Ernst & Young LLP or other independent public accountants
of nationally recognized standing, with such certification to be free
of exceptions and qualifications not acceptable to the Required Banks;
(b) as soon as available and in any event within 60 days after
the end of each Fiscal Quarter, a consolidated balance sheet and the
consolidating balance sheets of the Borrower and its Consolidated
Subsidiaries as of the end of such quarter and the related consolidated
and consolidating statements of income and consolidated and
consolidating statements of cash flows for such quarter and for the
portion of the Fiscal Year ended at the end of such quarter, setting
forth in each case in comparative form the figures for the
corresponding quarter and the corresponding portion of the previous
Fiscal Year, all certified (subject to normal year-end adjustments) as
to fairness of presentation, generally accepted accounting principles
and consistency by the chief financial officer or the chief accounting
officer of the Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of
the chief financial officer or the chief accounting officer of the
Borrower (i) setting forth in reasonable detail the calculations
required to establish whether the Borrower was in compliance with the
requirements of Sections 5.03 through 5.06, inclusive, on the date of
such financial statements (which calculations shall be presented
substantially in the form attached hereto as Schedule 5.01(c)), (ii)
listing (in reasonable detail) the Permitted Investments and Permitted
Acquisitions made by the Borrower and its Subsidiaries during the
Fiscal Quarter with respect to which such certificate is being
delivered, and (iii) stating whether any Default exists on the date of
such certificate and, if any Default then exists, setting forth the
details thereof and the action which the Borrower is taking or proposes
to take with respect thereto;
(d) simultaneously with the delivery of each set of annual
financial statements referred to in clause (a)(i) above, a statement of
the firm of independent public
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accountants which reported on such statements to the effect that
nothing has come to their attention to cause them to believe that the
Borrower had failed to comply with the terms, covenants, provisions or
conditions of Section 5.03 and Sections 5.05 to 5.08, inclusive,
insofar as they relate to accounting matters, nor were they aware that
any other Default existed on the date of such financial statements;
(e) within five Domestic Business Days after the Borrower
becomes aware of the occurrence of any Default, a certificate of the
chief financial officer or the chief accounting officer of the Borrower
setting forth the details thereof and the action which the Borrower is
taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of
the Borrower, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and annual,
quarterly or monthly reports which the Borrower shall have filed with
the Securities and Exchange Commission;
(h) if and when any member of the Controlled Group (i) gives
or is required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy of the
notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA, a copy of such notice; or (iii) receives
notice from the PBGC under Title IV of ERISA of an intent to terminate
or appoint a trustee to administer any Plan, a copy of such notice;
(i) promptly after the Borrower knows of the commencement or
threat thereof, notice of any Forfeiture Proceeding;
(j) promptly after the Borrower knows of the commencement
thereof, notice of any litigation, dispute or proceeding involving a
claim against the Borrower and/or any Subsidiary for $2,000,000 or more
in excess of amounts covered in full by applicable insurance;
(k) as soon as practicable after the receipt thereof, and in
any event within ten (10) Domestic Business Days after the issuance
thereof:
(i) copies of any order or notice of the FCC, a court
of competent jurisdiction or any other Governmental Authority
which designated any Broadcast License of the Borrower or any
Subsidiary or application therefor for a hearing, or which
refuses renewal or extension of any such Broadcast License, or
revokes or suspends the authority of the Borrower or any
Subsidiary to operate as a broadcast station;
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(ii) a copy of any competing application filed
against any Broadcast License of the Borrower or any
Subsidiary or application therefor;
(iii) copies of any citation, notice of violation or
order to show cause from the FCC, or any material complaint
filed by or with the FCC, in each case, in connection with the
Borrower or any Subsidiary;
(iv) a copy of any notice or application by the
Borrower or any Subsidiary requesting authority to cease
broadcasting on any broadcast station for any period in excess
of forty-eight (48) hours;
(v) promptly after the occurrence thereof, a written
summary of any material discussions between the Borrower and
the FCC;
(l) as soon as practicable, and in any event within thirty
(30) days after its due date for filing with the FCC, duplicate copies
of each FCC Form 323 (or any comparable form which may be substituted
therefor by the FCC) filed with the FCC with respect to each Station
and each other radio or television station owned by the Borrower or any
Subsidiary; and
(m) from time to time such additional information regarding
the financial position or business of the Borrower and its Subsidiaries
as the Agent, at the request of any Bank, may reasonably request.
Section 5.02 Inspection of Property, Books and Records. The Borrower
will keep, and will cause each Subsidiary to keep, proper books of record and
account in which full, true and correct entries in conformity with generally
accepted accounting principles shall be made of all dealings and transactions in
relation to its business and activities; and will permit, and will cause each
Subsidiary to permit, representatives of any Bank at such Bank's expense for
such Bank's direct costs incurred prior to the occurrence of an Event of Default
and at the Borrower's expense for all direct costs incurred after the occurrence
of an Event of Default to visit and inspect any of their respective Properties,
to examine and make abstracts from any of their respective books and records and
to discuss their respective affairs, finances and accounts with their respective
officers, employees and independent public accountants. The Borrower agrees to
cooperate and assist in such visits and inspections, in each case at such
reasonable times and as often as may reasonably be desired.
Section 5.03 Leverage Ratio. At all times, the ratio of Consolidated
Debt to Consolidated EBITDA (determined, as for Consolidated EBITDA, for the
period of 4 consecutive Fiscal Quarters most recently ended for which financial
statements have been prepared) shall be less than 2.5 to 1.0.
Section 5.04 [Reserved]
Section 5.05 Restricted Payments. The Borrower will not declare or make
any Restricted Payment if the amount of such Restricted Payment, when aggregated
with all other Restricted Payments made after December 31, 2000, would exceed
the sum of (a) $100,000,000
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plus (b) fifty percent (50%) of cumulative Net Income of the Borrower for all
fiscal periods beginning January 1, 2001; provided that: (i) in no event shall
the Borrower declare or make any Restricted Payment if after giving effect to
the payment of any such Restricted Payment, a Default shall have occurred and be
continuing; and (ii) for purposes of this Section 5.05 only, Net Income shall be
determined without regard to any effect on Net Income resulting solely from any
treatment of post-retirement benefits of the Borrower and its Consolidated
Subsidiaries required by Financial Accounting Standards Board Statement No. 106.
Section 5.06 Coverage Ratio. At all times, the ratio of Consolidated
EBIT (determined for the period of 4 consecutive Fiscal Quarters most recently
ended for which financial statements have been prepared) to Consolidated
Interest Expense (determined for the period of 4 consecutive Fiscal Quarters
most recently ended for which financial statements have been prepared) shall be
greater than 3.5 to 1.0.
Section 5.07 Loans or Advances. Neither the Borrower nor any of its
Subsidiaries shall make loans or advances to any Person except (i) loans or
advances to employees not exceeding $500,000 in the aggregate outstanding made
in the ordinary course of business and consistent with practices existing on
December 31, 2000; (ii) Permitted Investments; and (iii) Intercompany Loans;
provided that after giving effect to any such loans or advances described in
clause (i) of this Section, Permitted Investments and Intercompany Loans, no
Default shall have occurred and be continuing.
Section 5.08 Investments. The Borrower and its Subsidiaries shall not
make investments in any Person except as permitted by Section 5.07 and except
investments (i) in direct obligations of the United States Government maturing
within one year, (ii) in certificates of deposit issued by a commercial bank
whose credit is satisfactory to the Agent, (iii) in commercial paper rated A-1
or the equivalent thereof by Standard & Poor's Corporation or P-1 or the
equivalent thereof by Xxxxx'x Investors Service, Inc. and in either case
maturing within 6 months after the date of acquisition, (iv) in tender bonds the
payment of the principal of and interest on which is fully supported by a letter
of credit issued by a United States bank whose long-term certificates of deposit
are rated at least AA or the equivalent thereof by Standard & Poor's Corporation
and Aa or the equivalent thereof by Xxxxx'x Investors Service, Inc., (v)
constituting Permitted Investments, and (vi) constituting Permitted
Acquisitions.
Section 5.09 Negative Pledge. Neither the Borrower nor any Subsidiary
will create, assume or suffer to exist any Lien on any asset now owned or
hereafter acquired by it, and the Borrower shall not permit any Subsidiary to
incur any Debt, except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal
amount not exceeding $5,000,000;
(b) any Lien existing on any asset of any corporation at the
time such corporation becomes a Consolidated Subsidiary and not created
in contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed
for the purpose of financing all or any part of the cost of acquiring
or constructing such asset, provided that
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such Lien attaches to such asset concurrently with or within 18 months
after the acquisition or completion of construction thereof;
(d) any Lien on any asset of any corporation existing at the
time such corporation is merged or consolidated with or into the
Borrower or a Consolidated Subsidiary and not created in contemplation
of such event;
(e) any Lien existing on any asset prior to the acquisition
thereof by the Borrower or a Consolidated Subsidiary and not created in
contemplation of such acquisition;
(f) any Lien securing an Intercompany Loan;
(g) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any
of the foregoing clauses of this Section, provided that (i) such Debt
is not secured by any additional assets, and (ii) the amount of such
Debt secured by any such Lien is not increased; and
(h) Debt evidenced by Intercompany Loans.
Section 5.10 Conduct of Business and Maintenance of Existence. The
Borrower shall, and shall cause each Subsidiary to, (a) maintain its corporate
existence and carry on its business in substantially the same manner and in
substantially the same fields as such business is now carried on and maintained,
and (b) preserve, renew and keep in full force and effect their respective
rights, privileges, licenses (including, without limitation, all Broadcast
Licenses and broadcast network affiliations) and franchises necessary or
desirable in the normal conduct of business. The business of any Subsidiary of
the Borrower that is created or acquired by the Borrower after the date of this
Agreement shall be in substantially the same field as the business of the
Borrower and its Subsidiaries on the date of this Agreement.
Section 5.11 Dissolution. Neither the Borrower nor any of its
Subsidiaries (other than an Immaterial Subsidiary) shall suffer or permit
dissolution or liquidation either in whole or in part or redeem or retire any
shares of its own stock or that of any Subsidiary (other than an Immaterial
Subsidiary), except (a) through corporate reorganization to the extent permitted
by Section 5.12, and (b) the Borrower and any Subsidiary may make Stock Payments
to the extent permitted by Section 5.05.
Section 5.12 Consolidations, Mergers and Sales of Assets. The Borrower
will not, nor will it permit any Subsidiary to, consolidate or merge with or
into, or sell, lease or otherwise transfer all or any substantial part of its
assets to, any other Person, or discontinue or eliminate any business line or
segment, provided that (1) the Borrower or any Subsidiary (other than Cosmos)
may merge with another Person if (A) such other Person was organized under the
laws of the United States of America or one of its states, (B) the Borrower or
such Subsidiary (other than Cosmos) (as the case may be) is the corporation
surviving such merger; and (C) immediately after giving effect to such merger,
no Default shall have occurred and be continuing; (2) Subsidiaries of the
Borrower may merge with one another; (3) Cosmos may consolidate or merge with
another Person with the prior written consent of the Required Banks; and (4) the
foregoing limitation on the sale, lease or other transfer of assets and on the
discontinuation or elimination of a business line or segment shall not prohibit
during any Fiscal
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Quarter, a transfer of assets or the discontinuance or elimination of a business
line or segment (in a single transaction or in a series of related transactions)
unless the aggregate assets to be so transferred or utilized in a business line
or segment to be so discontinued, when combined with all other assets
transferred, and all other assets utilized in all other business lines or
segments discontinued, during such Fiscal Quarter and the immediately preceding
seven Fiscal Quarters, either (x) constituted more than 10% of Consolidated
Total Assets at the end of the eighth Fiscal Quarter immediately preceding such
Fiscal Quarter, or (y) contributed more than 10% of Consolidated Operating
Profits during the 8 consecutive Fiscal Quarters immediately preceding such
Fiscal Quarter.
Section 5.13 Use of Proceeds.
(a) No portion of the proceeds of the Loans will be used by
the Borrower (i) in connection with any tender offer for, or other
acquisition of (except for Permitted Acquisitions), stock of any
corporation with a view towards obtaining control of such other
corporation, (ii) directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of purchasing or carrying any Margin
Stock, (iii) to finance, directly or indirectly, any Stock Payment if
such Stock Payment is not permitted to be made under Section 5.05, or
(iv) for any purpose in violation of any applicable law or regulation.
(b) The proceeds of Loans shall be used exclusively by the
Borrower (i) for working capital and other general corporate purposes,
(ii) to repurchase Capital Stock of the Borrower, and (iii) for Capital
Expenditures.
Section 5.14 Compliance with Laws; Payment of Taxes. The Borrower will,
and will cause each of its Subsidiaries and each member of the Controlled Group
to, comply with applicable laws (including but not limited to ERISA),
regulations and similar requirements of governmental authorities (including but
not limited to the PBGC), except where the necessity of such compliance is being
contested in good faith through appropriate proceedings diligently pursued. The
Borrower will, and will cause each of its Subsidiaries to, pay promptly when due
all taxes, assessments, governmental charges, claims for labor, supplies, rent
and other obligations which, if unpaid, might become a lien against the Property
of the Borrower or any Subsidiary, except liabilities being contested in good
faith by appropriate proceedings diligently pursued and against which, if
requested by the Agent, the Borrower shall have set up reserves satisfactory to
the Agent.
Section 5.15 Insurance. The Borrower will maintain, and will cause each
of its Subsidiaries to maintain (either in the name of the Borrower or in such
Subsidiary's own name), with financially sound and reputable insurance companies
acceptable to the Agent, insurance on all its Property in at least such amounts
and against at least such risks as are usually insured against in the same
general area by companies of established repute engaged in the same or similar
business.
Section 5.16 Change in Fiscal Year. The Borrower will not change its
Fiscal Year without the consent of the Required Banks.
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Section 5.17 Maintenance of Property. The Borrower shall, and shall
cause each Subsidiary to, maintain all of its Properties and assets in good
condition, repair and working order, ordinary wear and tear excepted.
Section 5.18 Environmental Notices. The Borrower shall furnish to the
Banks and the Agent prompt written notice of all Environmental Liabilities,
pending, threatened or anticipated Environmental Proceedings, Environmental
Notices, Environmental Judgments and Orders, and Environmental Releases at, on,
in, under or in any way affecting the Properties or any adjacent property, and
all facts, events, or conditions that could lead to any of the foregoing.
Section 5.19 Environmental Matters. The Borrower will not, and will not
permit any Third Party to, use, produce, manufacture, process, generate, store,
dispose of, manage at, or ship or transport to or from the Properties any
Hazardous Materials except for Hazardous Materials such as cleaning solvents,
pesticides and other similar materials used, produced, manufactured, processed,
generated, stored, disposed or managed in the ordinary course of business in
compliance with all applicable Environmental Requirements.
Section 5.20 Environmental Release. The Borrower agrees that upon the
occurrence of an Environmental Release it will act immediately to investigate
the extent of, and to take appropriate remedial action to eliminate, such
Environmental Release, whether or not ordered or otherwise directed to do so by
any Environmental Authority.
Section 5.21 Transactions with Affiliates. Neither the Borrower nor any
of its Subsidiaries shall enter into, or be a party to, any transaction with any
Affiliate of the Borrower or such Subsidiary (which Affiliate is not the
Borrower or a Guarantor), except for Permitted Investments or as permitted by
law and in the ordinary course of business and pursuant to terms which are no
less favorable to the Borrower or such Subsidiary than would be obtained in a
comparable arm's length transaction with a Person which is not an Affiliate.
Section 5.22 Restrictions on Ability of Subsidiaries to Pay Dividends.
The Borrower shall not permit any Subsidiary to, directly or indirectly, create
or otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such Subsidiary to (i) pay any dividends or
make any other distributions on its Capital Stock or any other interest or (ii)
make or repay any loans or advances made by the Borrower or any other Subsidiary
to such Subsidiary.
Section 5.23 No Activities Leading to Forfeiture. Neither the Borrower
nor any of its Subsidiaries or Affiliates shall engage in the conduct of any
business or activity which could result in a Forfeiture Proceeding.
Section 5.24 Additional Guarantors.
(a) The Borrower will cause each of its Material Subsidiaries,
whether newly formed, after acquired or otherwise existing, to promptly
become a Guarantor hereunder and under the Guaranty by way of execution
of an instrument in form and substance satisfactory to the Agent,
together with such authorizing resolutions, constitutive documents and
legal opinions for such Additional Guarantor as may be reasonably
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required by the Agent, executed and delivered to the Agent within 20
Domestic Business Days after the day on which such Person becomes a
Material Subsidiary.
(b) Once any Subsidiary becomes a Material Subsidiary and
therefore becomes a party to the Guaranty in accordance with Section
5.24(a), such Subsidiary thereafter shall remain a party to the
Guaranty without regard to the amount of its Total Assets on any day or
Operating Profits for any period.
Section 5.25 Maintenance of FCC Licenses, Affiliation Agreements, Etc.
The Borrower shall maintain and preserve, and cause each of its Subsidiaries to
maintain and preserve, each license, franchise, permit and other authorization
necessary or desirable under the Communications Act of 1934 or otherwise with
respect to which the failure to so maintain and preserve could reasonably be
expected to have or cause a Material Adverse Effect.
Section 5.26 Cease Broadcasting. The Borrower shall not permit any
Station operated by the Borrower or any of its Subsidiaries to cease
broadcasting for a period in excess of 10 consecutive days.
ARTICLE VI.
DEFAULTS
Section 6.01 Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of
any Loan or shall fail to pay any interest on any Loan within three
Domestic Business Days after such interest shall become due, or shall
fail to pay any fee or other amount payable hereunder within three
Domestic Business Days after such fee or other amount becomes due; or
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.02 to 5.13, inclusive or Sections 5.21 or 5.22;
or
(c) the Borrower shall fail to observe or perform any covenant
or agreement contained in this Agreement (other than those covered by
clause (a) or (b) above) for thirty days after written notice thereof
has been given to the Borrower by the Agent at the request of any Bank;
or
(d) any representation, warranty, certification or statement
made or deemed made by the Borrower in Article IV of this Agreement or
by any Guarantor in the Guaranty or by the Borrower or any Guarantor in
any certificate, financial statement or other document delivered
pursuant to this Agreement shall prove to have been incorrect in any
material respect when made (or deemed made); or
(e) the Borrower or any Subsidiary shall fail to make any
payment in respect of Debt outstanding in an aggregate principal amount
equal to or greater than $5,000,000 (other than the Notes) when due or
within any applicable grace period; or
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43
(f) any event or condition shall occur which results in the
acceleration of the maturity of Debt outstanding in an aggregate
principal amount equal to or greater than $5,000,000 of the Borrower or
any Subsidiary (including, without limitation, any required mandatory
prepayment or "put" of such Debt to the Borrower or any Subsidiary) or
enables (or, with the giving of notice or lapse of time or both, would
enable) the holders of such Debt or commitment or any Person acting on
such holders' behalf to accelerate the maturity thereof or terminate
any such commitment (including, without limitation, any required
mandatory prepayment or "put" of such Debt to the Borrower or any
Subsidiary); or
(g) the Borrower or any Subsidiary shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its Property, or
shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally, or shall admit in
writing its inability, to pay its debts as they become due, or shall
take any corporate action to authorize any of the foregoing; or
(h) an involuntary case or other proceeding shall be commenced
against the Borrower or any Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its Property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days; or an order
for relief shall be entered against the Borrower or any Subsidiary
under the federal bankruptcy laws as now or hereafter in effect; or
(i) the Borrower or any member of the Controlled Group shall
fail to pay when due any material amount which it shall have become
liable to pay to the PBGC or to a Plan under Title IV of ERISA; or the
PBGC shall institute proceedings under Title IV of ERISA to terminate
or to cause a trustee to be appointed to administer any such Plan or
Plans or a proceeding shall be instituted by a fiduciary of any such
Plan or Plans to enforce Section 515 or 4219(c)(5) of ERISA and such
proceeding shall not have been dismissed within 30 days thereafter; or
a condition shall exist by reason of which the PBGC would be entitled
to obtain a decree adjudicating that any such Plan or Plans must be
terminated; or the Borrower or any other member of the Controlled Group
shall enter into, contribute or be obligated to contribute to,
terminate or incur any withdrawal liability with respect to, a
Multiemployer Plan; or
(j) one or more judgments or orders for the payment of money
in an aggregate amount in excess of $2,500,000 shall be rendered
against the Borrower or any Subsidiary and such judgment or order shall
continue unsatisfied and unstayed for a period of 30 days; or
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(k) a federal tax lien shall be filed against the Borrower
under Section 6323 of the Code or a lien of the PBGC shall be filed
against the Borrower under Section 4068 of ERISA and in either case
such lien shall remain undischarged for a period of 25 days after the
date of filing; or
(l) (i) any Person or two or more Persons acting in concert
(other than Person(s) who are lineal descendants (including without
limitation adopted children) of W. Xxxxx Xxxx, spouses of such lineal
descendants, or fiduciaries with respect to voting stock held by, under
the control of or for the benefit of such lineal descendants or spouses
of such lineal descendants and other than Person(s) whose ownership of
25% or more of the outstanding shares of the voting stock of the
Borrower is approved in advance by the Board of Directors of the
Borrower) shall have acquired beneficial ownership (within the meaning
of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of 25% or more of the outstanding
shares of the voting stock of the Borrower; or (ii) as of any date a
majority of the Board of Directors of the Borrower consists of
individuals who were not either (A) directors of the Borrower as of the
corresponding date of the previous year, (B) selected or nominated to
become directors by the Board of Directors of the Borrower of which a
majority consisted of individuals described in clause (A), or (C)
selected or nominated to become directors by the Board of Directors of
the Borrower of which a majority consisted of individuals described in
clause (A) and individuals described in clause (B); or
(m) either (i) any Forfeiture Proceeding shall have been
commenced or the Borrower shall have given the Banks written notice of
the commencement or threatened commencement of any Forfeiture
Proceeding as provided in Section 5.01(i); or (ii) the Agent has a good
faith basis to believe that a Forfeiture Proceeding has been threatened
or commenced; or
(n) if any material Broadcast License necessary for the
operation of the Stations shall be terminated, forfeited or revoked or
shall fail to be renewed for any reason whatsoever, or, for any other
reason, the Borrower or a Wholly-Owned Subsidiary of the Borrower shall
at any time fail to be a licensee under any material Broadcast License
or shall otherwise fail to have all material authorizations, licenses
and permits to construct, own, operate or promote the Stations pursuant
to the Broadcast Licenses; or
(o) if, at any time, any action of the FCC shall become a
final order or judgment or any court of competent jurisdiction shall
have entered any final order or judgment (which, in either case, shall
have been outstanding for any period of more than thirty (30) days
during which enforcement of such order or judgment has not been stayed,
by reason of a pending appeal or otherwise) requiring the Borrower or
any Subsidiary to sell, transfer or divest itself of any Station, or
the Stock of any Subsidiary all of the assets of which comprise any
Station, by virtue of any failure on the part of the Borrower or such
Subsidiary to comply with the Federal Communications Act of 1934, as
amended, the rules and regulations of the FCC promulgated thereunder or
any FCC order or any judgment, and the Borrower or such Subsidiary
shall fail to consummate such sale, transfer or divestiture within the
time allotted therefor; or
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(p) the Guaranty shall cease to be in full force and effect
(other than pursuant to its terms) or a Guarantor shall disaffirm or
deny its obligations under the Guaranty;
then, and in every such event, the Agent shall (i) if requested by the Required
Banks, by notice to the Borrower terminate the Commitments and they shall
thereupon terminate, and (ii) if requested by the Required Banks, by notice to
the Borrower declare the Advances (together with accrued interest thereon) and
all other amounts payable hereunder and under the other Loan Documents to be,
and the Advances (together with all accrued interest thereon) and all other
amounts payable hereunder and under the other Loan Documents shall thereupon
become, immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower;
provided that if any Event of Default specified in clause (g) or (h) above
occurs with respect to the Borrower, without any notice to the Borrower or any
other act by the Agent or the Banks, the Commitments shall thereupon
automatically terminate and the Advances (together with accrued interest
thereon) and all other amounts payable hereunder and under the other Loan
Documents shall automatically become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
Section 6.02 Notice of Default. The Agent shall give notice to the
Borrower of any Event of Default under Section 6.01(c) promptly upon being
requested to do so by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII.
THE AGENT
Section 7.01 Appointment; Powers and Immunities. Each Bank hereby
irrevocably appoints and authorizes the Agent to act as its Agent hereunder and
under the other Loan Documents with such powers as are specifically delegated to
the Agent by the terms hereof and thereof, together with such other powers as
are reasonably incidental thereto. The Agent: (a) shall have no duties or
responsibilities except as expressly set forth in this Agreement and the other
Loan Documents, and shall not by reason of this Agreement or any other Loan
Document be a trustee for any Bank; (b) makes no warranty or representation to
any Bank and shall not be responsible to the Banks for any recitals, statements,
representations or warranties contained in this Agreement or any other Loan
Document, or in any certificate or other document referred to or provided for
in, or received by any Bank under, this Agreement or any other Loan Document, or
for the validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document or any other document referred to or
provided for herein or therein or for any failure by the Borrower to perform any
of its obligations hereunder or thereunder; (c) shall not be required to
initiate or conduct any litigation or collection proceedings hereunder or under
any other Loan Document except to the extent requested by the Required Banks,
and then only on terms and conditions satisfactory to the Agent, and (d) shall
not be responsible for any action taken or omitted to be taken by it hereunder
or under any other Loan Document or any other document or instrument referred to
or provided for herein or therein or in connection herewith or therewith, except
for its own gross negligence or willful misconduct. The Agent may employ Agents
and attorneys-in-fact and shall not be responsible for the negligence or
misconduct of any such Agents or attorneys-in-fact selected by it with
reasonable care. The provisions of this Article VII are solely for the benefit
of the Agent and the Banks, and the
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Borrower shall not have any rights as a third party beneficiary of any of the
provisions hereof. In performing its functions and duties under this Agreement
and under the other Loan Documents, the Agent shall act solely as Agent of the
Banks and does not assume and shall not be deemed to have assumed any obligation
towards or relationship of agency or trust with or for the Borrower. The duties
of the Agent shall be ministerial and administrative in nature, and the Agent
shall not have by reason of this Agreement or any other Loan Document a
fiduciary relationship in respect of any Bank.
Section 7.02 Reliance by Agent. The Agent shall be entitled to rely
upon any certification, notice or other communication (including any thereof by
telephone, telecopier, telegram or cable) believed by it to be genuine and
correct and to have been signed or sent by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel, independent
accountants or other experts selected by the Agent. As to any matters not
expressly provided for by this Agreement or any other Loan Document, the Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder and thereunder in accordance with instructions signed by the Required
Banks, and such instructions of the Required Banks in any action taken or
failure to act pursuant thereto shall be binding on all of the Banks.
Section 7.03 Defaults. The Agent shall not be deemed to have knowledge
of the occurrence of a Default or an Event of Default (other than the nonpayment
of principal of or interest on the Loans) unless the Agent has received notice
from a Bank or the Borrower specifying such Default or Event of Default and
stating that such notice is a "Notice of Default". In the event that the Agent
receives such a notice of the occurrence of a Default or an Event of Default,
the Agent shall give prompt notice thereof to the Banks. The Agent shall
(subject to Section 9.05) take such action hereunder with respect to such
Default or Event of Default as shall be directed by the Required Banks, provided
that, unless and until the Agent shall have received such directions, the Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Banks.
Section 7.04 Rights of Agent and its Affiliates as a Bank. With respect
to its Commitment and the Loans made by it and any of its Affiliates, Wachovia
(and any successor acting as Agent hereunder) in its capacity as a Bank
hereunder and any Affiliate of Wachovia in its capacity as a Bank hereunder
shall have the same rights and powers hereunder as any other Bank and may
exercise the same as though it were not acting as the Agent, and the term "Bank"
or "Banks" shall, unless the context otherwise indicates, include Wachovia in
its individual capacity and any Affiliate of the Agent in its individual
capacity. Wachovia (and any successor acting as Agent hereunder) and any
Affiliate thereof may (without having to account therefor to any Bank) accept
deposits from, lend money to and generally engage in any kind of banking, trust
or other business with the Borrower (and any of the Borrower's Affiliates) as if
it were not acting as the Agent, and Wachovia and any Affiliate thereof may
accept fees and other consideration from the Borrower or any Subsidiary or
Affiliate thereof for services in connection with this Agreement or any other
Loan Document or otherwise without having to account for the same to the Banks.
Section 7.05 Indemnification. Each Bank severally agrees to indemnify
the Agent, to the extent the Agent shall not have been reimbursed by the
Borrower, ratably in accordance
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with its Commitment, for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including, without
limitation, counsel fees and disbursements) or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted against the
Agent in any way relating to or arising out of this Agreement or any other Loan
Document or any other documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby (including, without
limitation, the costs and expenses that the Borrower is obligated to pay under
Section 9.03 or any amount the Borrower is obligated to pay under Section 9.04,
but excluding, unless a Default has occurred and is continuing, the normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or thereof or
any such other documents; provided that no Bank shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of the Agent. If any indemnity furnished to the Agent for any purpose
shall, in the opinion of the Agent, be insufficient or become impaired, the
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished.
Section 7.06 CONSEQUENTIAL DAMAGES. NEITHER THE AGENT NOR ANY BANK
SHALL BE RESPONSIBLE OR LIABLE TO ANY BANK, THE BORROWER OR ANY OTHER PERSON OR
ENTITY FOR ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED
AS A RESULT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 7.07 Registered Holder of Loan Treated as Owner. The Agent may
deem and treat each Person in whose name a Loan is registered as the owner
thereof for all purposes hereof unless and until a written notice of the
assignment or transfer thereof shall have been filed with the Agent and the
provisions of Section 9.07(c) have been satisfied. Any requests, authority or
consent of any Person who at the time of making such request or giving such
authority or consent is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee or assignee of that Note or of any Note or
Notes issued in exchange therefor or replacement thereof.
Section 7.08 Nonreliance on Agent and Other Banks. Each Bank agrees
that it has, independently and without reliance on the Agent or any other Bank,
and based on such documents and information as it has deemed appropriate, made
its own credit analysis of the Borrower and decision to enter into this
Agreement and that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any of the other Loan
Documents. The Agent shall not be required to keep itself (or any Bank) informed
as to the performance or observance by the Borrower of this Agreement or any of
the other Loan Documents or any other document referred to or provided for
herein or therein or to inspect the properties or books of the Borrower or any
other Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Agent hereunder or under
the other Loan Documents, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the affairs,
financial condition or business of the Borrower
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or any other Person (or any of their Affiliates) which may come into the
possession of the Agent or any of its Affiliates.
Section 7.09 Failure to Act. Except for action expressly required of
the Agent hereunder or under the other Loan Documents, the Agent shall in all
cases be fully justified in failing or refusing to act hereunder and thereunder
unless it shall receive further assurances to its satisfaction by the Banks of
their indemnification obligations under Section 7.05 against any and all
liability and expense which may be incurred by the Agent by reason of taking,
continuing to take, or failing to take any such action.
Section 7.10 Successor Agent. The Agent may resign at any time by
giving notice thereof to the Banks and the Borrower. Upon any such resignation,
the Required Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Banks and shall
have accepted such appointment within 30 days after the retiring Agent's notice
of resignation, then the retiring Agent may, on behalf of the Banks, appoint a
successor Agent. Any successor Agent shall be a bank or other financial
institution which has a combined capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation hereunder as Agent, the provisions of this Article
VII shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Agent hereunder.
Section 7.11 Other Agents. The Borrower and each Bank hereby
acknowledges that any Bank designated as an "Agent" on the signature pages
hereof (other than the Agent) shall not have any obligations, duties or
liabilities hereunder other than in its capacity as a Bank.
ARTICLE VIII.
CHANGE IN CIRCUMSTANCES; COMPENSATION
Section 8.01 Basis for Determining Interest Rate Inadequate or Unfair.
If on or prior to the first day of any Interest Period:
(a) the Agent determines that deposits in Dollars (in the
applicable amounts) are not being offered in the relevant market for
such Interest Period, or
(b) the Required Banks advise the Agent that the London
Interbank Offered Rate as determined by the Agent will not adequately
and fairly reflect the cost to such Banks of funding the Euro-Dollar
Loans for such Interest Period, the Agent shall forthwith give notice
thereof to the Borrower and the Banks, whereupon until the Agent
notifies the Borrower that the circumstances giving rise to such
suspension no longer exist, the obligations of the Banks to make
Euro-Dollar Loans shall be suspended. Unless the Borrower notifies the
Agent at least two Domestic Business Days before the date of any
Borrowing of Euro-Dollar Loans for which a Notice of Borrowing or
Notice of Continuation or Conversion has previously been given that it
elects not to borrow on such date, such Borrowing shall instead be made
as a Base Rate Borrowing.
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Section 8.02 Illegality. If, after the date hereof, the adoption of any
applicable law, rule or regulation, or any change in any existing or future law,
rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof (any such authority, bank or
agency being referred to as an "Authority" and any such event being referred to
as a "Change of Law"), or compliance by any Bank (or its Lending Office) with
any request or directive (whether or not having the force of law) of any
Authority shall make it unlawful or impossible for any Bank (or its Lending
Office) to make, maintain or fund its Euro-Dollar Loans and such Bank shall so
notify the Agent, the Agent shall forthwith give notice thereof to the other
Banks and the Borrower, whereupon until such Bank notifies the Borrower and the
Agent that the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans shall be suspended. Before
giving any notice to the Agent pursuant to this Section, such Bank shall
designate a different Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such Bank shall determine that it may not
lawfully continue to maintain and fund any of its outstanding Euro-Dollar Loans
to maturity and shall so specify in such notice, the Borrower shall immediately
prepay in full the then outstanding principal amount of each Euro-Dollar Loan of
such Bank, together with accrued interest thereon and any amount due such Bank
pursuant to Section 8.05(a). Concurrently with prepaying each such Euro-Dollar
Loan, the Borrower shall borrow a Base Rate Loan in an equal principal amount
from such Bank (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks), and
such Bank shall make such a Base Rate Loan.
Section 8.03 Increased Cost and Reduced Return.
(a) If after the date hereof, a Change of Law or compliance by
any Bank (or its Lending Office) with any request or directive (whether
or not having the force of law) of any Authority:
(i) shall subject any Bank (or its Lending Office) to
any tax, duty or other charge with respect to its Euro-Dollar
Loans, its Notes or its obligation to make Euro-Dollar Loans,
or shall change the basis of taxation of payments to any Bank
(or its Lending Office) of the principal of or interest on its
Euro-Dollar Loans or any other amounts due under this
Agreement in respect of its Euro-Dollar Loans or its
obligation to make Euro-Dollar Loans (except for changes in
the rate of tax on the overall net income of such Bank or its
Lending Office imposed by the jurisdiction in which such
Bank's principal executive office or Lending Office is
located); or
(ii) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement (including,
without limitation, any such requirement imposed by the Board
of Governors of the Federal Reserve System, but excluding any
such requirement included in an applicable Euro-Dollar Reserve
Percentage) against assets of, deposits with or for the
account of, or credit extended by, any Bank (or its Lending
Office); or
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(iii) shall impose on any Bank (or its Lending
Office) or the London interbank market any other condition
affecting its Euro-Dollar Loans, its Notes or its obligation
to make Euro-Dollar Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Euro-Dollar Loan, or to reduce
the amount of any sum received or receivable by such Bank (or its Lending
Office) under this Agreement or under its Note with respect thereto, by an
amount deemed by such Bank to be material, then, within 15 days after demand by
such Bank (with a copy to the Agent), the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such increased
cost or reduction.
(b) If any Bank shall have determined that after the date
hereof the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change in any existing or future law, rule or
regulation, or any change in the interpretation or administration
thereof, or compliance by any Bank (or its Lending Office) with any
request or directive regarding capital adequacy (whether or not having
the force of law) of any Authority, has or would have the effect of
reducing the rate of return on such Bank's capital as a consequence of
its obligations hereunder to a level below that which such Bank could
have achieved but for such adoption, change or compliance (taking into
consideration such Bank's policies with respect to capital adequacy) by
an amount deemed by such Bank to be material, then from time to time,
within 15 days after demand by such Bank, the Borrower shall pay to
such Bank such additional amount or amounts as will compensate such
Bank for such reduction.
(c) Each Bank will promptly notify the Borrower and the Agent
of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Bank to compensation pursuant to this
Section and will designate a different Lending Office if such
designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. A certificate of any Bank claiming
compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the
absence of manifest error. In determining such amount, such Bank may
use any reasonable averaging and attribution methods.
(d) The provisions of this Section 8.03 shall be applicable
with respect to any Participant, Assignee or other Transferee, and any
calculations required by such provisions shall be made based upon the
circumstances of such Participant, Assignee or other Transferee.
Section 8.04 Base Rate Loans Substituted for Affected Euro-Dollar
Loans. If (i) the obligation of any Bank to make or maintain Euro-Dollar Loans
has been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03, and the Borrower shall, by at least five
Euro-Dollar Business Days' prior notice to such Bank through the Agent, have
elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer apply:
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(a) all Loans which would otherwise be made by such Bank as
Euro-Dollar Loans shall be made instead as Base Rate Loans (interest
and principal on such Loans shall be payable contemporaneously with the
related Euro-Dollar Loans of the other Banks), and
(b) after its Euro-Dollar Loans have been repaid, all payments
of principal which would otherwise be applied to repay such Euro-Dollar
Loans shall be applied to repay its Base Rate Loans instead.
In the event that the Borrower shall elect that the provisions of this Section
shall apply to any Bank, the Borrower shall remain liable for, and shall pay to
such Bank as provided herein, all amounts due such Bank under Section 8.03 in
respect of the period preceding the date of conversion of such Bank's Loans
resulting from the Borrower's election.
Section 8.05 Compensation. Upon the request of any Bank, delivered to
the Borrower and the Agent, the Borrower shall pay to such Bank such amount or
amounts as shall compensate such Bank for any loss, cost or expense incurred by
such Bank as a result of:
(a) any payment or prepayment (pursuant to Section 2.09,
Section 2.10, Section 8.02 or otherwise) of a Euro-Dollar Loan on a
date other than the last day of an Interest Period for such Euro-Dollar
Loan;
(b) any failure by the Borrower to prepay a Euro-Dollar Loan
on the date for such prepayment specified in the relevant notice of
prepayment hereunder; or
(c) any failure by the Borrower to borrow a Euro-Dollar Loan
on the date for the Euro-Dollar Borrowing of which such Euro-Dollar
Loan is a part specified in the applicable Notice of Borrowing
delivered pursuant to Section 2.02;
such compensation to include, without limitation, an amount equal to the excess,
if any, of (x) the amount of interest which would have accrued on the amount so
paid or prepaid or not prepaid or borrowed for the period from the date of such
payment, prepayment or failure to prepay or borrow to the last day of the then
current Interest Period for such Euro-Dollar Loan (or, in the case of a failure
to prepay or borrow, the Interest Period for such Euro-Dollar Loan which would
have commenced on the date of such failure to prepay or borrow) at the
applicable rate of interest for such Euro-Dollar Loan provided for herein over
(y) the amount of interest (as reasonably determined by such Bank) such Bank
would have paid on deposits in Dollars of comparable amounts having terms
comparable to such period placed with it by leading banks in the London
interbank market.
ARTICLE IX.
MISCELLANEOUS
Section 9.01 Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission or
similar writing) and shall be given to such party at its address or telecopy
number set forth on the signature pages hereof or such other address or telecopy
number as such party may hereafter specify for the purpose by notice to the
Agent and the Borrower. Each such notice, request or other communication shall
be effective (i) if given by mail, 72 hours after such communication is
deposited in the mails with
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first class postage prepaid, addressed as aforesaid, (ii) if given by telecopy,
when receipt is confirmed by telephone, or (iii) if given by any other means,
when delivered at the address specified in this Section; provided that all
notices, requests and other communications given by telecopy to the Borrower
shall be given at the telecopy number set forth under the signature of the
Borrower on the signature pages hereof; provided further that notices to the
Agent under Article II or Article VIII shall not be effective until received.
Section 9.02 No Waivers. No failure or delay by the Agent or any Bank
in exercising any right, power or privilege hereunder or under any Note shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
Section 9.03 Expenses; Indemnification.
(a) The Borrower shall pay (i) all out-of-pocket expenses of
the Agent, including fees and disbursements of special counsel for the
Agent, in connection with the preparation, review and negotiation of
this Agreement and the other Loan Documents (subject to the cap
separately agreed to), any waiver or consent hereunder or thereunder or
any amendment hereof or thereof or any Default or alleged Default
hereunder or thereunder and (ii) if an Event of Default occurs, all
out-of-pocket expenses incurred by the Agent or any Bank, including
fees and disbursements of counsel, in connection with such Event of
Default and collection and other enforcement proceedings resulting
therefrom, including out-of-pocket expenses incurred in enforcing this
Agreement and the other Loan Documents. The Borrower shall indemnify
each Bank against any transfer taxes, documentary taxes, assessments or
charges made by any Authority by reason of the execution and delivery
of this Agreement or the other Loan Documents.
(b) The Borrower agrees to indemnify and hold harmless the
Agent and each Bank (an "Indemnified Person") from and against any and
all claims, damages, liabilities and expenses (including, without
limitation, reasonable counsel fees and expenses) which may be incurred
by or asserted against the Agent or such Bank in connection with or
arising out of any investigation, litigation or proceeding related to
the transactions contemplated by this Agreement or any other Loan
Document, whether or not the Agent or such Bank is a party thereto;
provided, however, the Borrower shall not be obligated to indemnify an
Indemnified Person to the extent any claim, damage, liability or
expense shall arise from such Indemnified Person's gross negligence or
willful misconduct.
Section 9.04 Sharing of Set-Offs.
(a) The Borrower hereby grants to each Bank, as security for
the full and punctual payment and performance of the obligations of the
Borrower under this Agreement, a continuing lien on and security
interest in all deposits and other sums credited by or due from such
Bank to the Borrower or subject to withdrawal by the Borrower; and
regardless of the adequacy of any collateral or other means of
obtaining repayment of such obligations, each Bank may at any time upon
or after the occurrence of any Event of Default, and without notice to
the Borrower, set off the whole or any portion or portions
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53
of any or all such deposits and other sums against such obligations,
whether or not any other Person or Persons could also withdraw money
therefrom.
(b) Each Bank agrees that if it shall, by exercising any right
of set-off or counterclaim or otherwise, receive payment of a
proportion of the aggregate amount of principal and interest due with
respect to the Notes held by it which is greater than the proportion
received by any other Bank in respect of the aggregate amount of all
principal and interest due with respect to the Notes held by such other
Bank, the Bank receiving such proportionately greater payment shall
purchase such participations in the Notes held by the other Banks owing
to such other Banks, and/or such other adjustments shall be made, as
may be required so that all such payments of principal and interest
with respect to the Notes held by the Banks owing to such other Banks
shall be shared by the Banks pro rata; provided that (i) nothing in
this Section shall impair the right of any Bank to exercise any right
of set-off or counterclaim it may have and to apply the amount subject
to such exercise to the payment of indebtedness of the Borrower other
than its indebtedness under the Notes, and (ii) if all or any portion
of such payment received by the purchasing Bank is thereafter recovered
from such purchasing Bank, such purchase from each other Bank shall be
rescinded and such other Bank shall repay to the purchasing Bank the
purchase price of such participation to the extent of such recovery
together with an amount equal to such other Bank's ratable share
(according to the proportion of (x) the amount of such other Bank's
required repayment to (y) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The
Borrower agrees, to the fullest extent it may effectively do so under
applicable law, that any holder of a participation in a Notes, whether
or not acquired pursuant to the foregoing arrangements, may exercise
rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a
direct creditor of the Borrower in the amount of such participation.
Section 9.05 Amendments and Waivers.
(a) Any provision of this Agreement, the Notes or any other
Loan Documents may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Borrower and the Required
Banks (and, if the rights or duties of the Agent are affected thereby,
by the Agent); provided that, except as provided below in this
subsection, no such amendment or waiver shall, unless signed by each
Bank affected thereby, (i) change the Commitment of any Bank or subject
any Bank to any additional obligation, (ii) change the principal of or
rate of interest on any Loan or any fees hereunder, (iii) change the
date fixed for any payment of principal of or interest on any Loan or
any fees hereunder (including, without limitation, the Termination
Date), (iv) change the amount of principal, interest or fees due on any
date fixed for the payment thereof, (v) change the percentage of the
Commitment or of the aggregate unpaid principal amount of the Notes, or
the number of Banks, which shall be required for the Banks or any of
them to take any action under this Section or any other provision of
this Agreement, (vi) change the manner of application of any payments
made under this Agreement or the Notes, (vii) release or substitute all
or any substantial part of the collateral (if any) held as security for
the Loans, (viii) release any Guarantor from the
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Guaranty, or (ix) modify Section 2.09, 2.11, Article III, Section 8.03,
Section 8.05, Section 9.03, Section 9.04 or Section 9.07(a).
(b) The Borrower will not solicit, request or negotiate for or
with respect to any proposed waiver or amendment of any of the
provisions of this Agreement unless each Bank shall be informed thereof
by the Borrower and shall be afforded an opportunity of considering the
same and shall be supplied by the Borrower with sufficient information
to enable it to make an informed decision with respect thereto.
Executed or true and correct copies of any waiver or consent effected
pursuant to the provisions of this Agreement shall be delivered by the
Borrower to each Bank forthwith following the date on which the same
shall have been executed and delivered by the requisite percentage of
Banks. The Borrower will not, directly or indirectly, pay or cause to
be paid any remuneration, whether by way of supplemental or additional
interest, fee or otherwise, to any Bank as consideration for or as an
inducement to the entering into by such Bank of any waiver or amendment
of any of the terms and provisions of this Agreement unless such
remuneration is concurrently paid, on the same terms, ratably to all
such Banks.
Section 9.06 Margin Stock Collateral. Each of the Banks represents to
the Agent and each of the other Banks that it in good faith is not, directly or
indirectly, (by negative pledge or otherwise) relying upon any Margin Stock as
collateral in the extension or maintenance of the credit provided for in this
Agreement.
Section 9.07 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns; provided that the Borrower may not assign or
otherwise transfer any of its rights under this Agreement.
(b) Any Bank may at any time sell to one or more Persons (each
a "Participant") participating interests in any Loan owing to such
Bank, any Note held by such Bank, any Commitment hereunder or any other
interest of such Bank hereunder. In the event of any such sale by a
Bank of a participating interest to a Participant, such Bank's
obligations under this Agreement shall remain unchanged, such Bank
shall remain solely responsible for the performance thereof, such Bank
shall remain the holder of any such Note for all purposes under this
Agreement, and the Borrower and the Agent shall continue to deal solely
and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. In no event shall a Bank that sells a
participation be obligated to the Participant to take or refrain from
taking any action hereunder except that such Bank may agree that it
will not (except as provided below), without the consent of the
Participant, agree to (i) the change of any date fixed for the payment
of principal of or interest on the related Loan or Loans, (ii) the
change of the amount of any principal, interest or fees due on any date
fixed for the payment thereof with respect to the related Loan or
Loans, (iii) the change of the principal of the related Loan or Loans,
or (iv) any change in the rate at which either interest is payable
thereon or conversion rights fee or facility fee is payable hereunder
from the rate at which the Participant is entitled to receive interest,
facility fees or conversion rights fees (as the case may be) in respect
of such participation. The Borrower agrees that each Participant shall
be entitled to the
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benefits of Article VIII with respect to its participation in Loans
outstanding from time to time.
(c) Any Bank may at any time assign to one or more commercial
banks, finance companies, insurance companies or other financial
institution or fund which, in each case, in the ordinary course of
business extends credit of the type contemplated herein and whose
becoming an assignee would not constitute a prohibited transaction
under Section 4975 of ERISA (each an "Assignee") all or a proportionate
part of its rights and obligations under this Agreement, the Notes and
the other Loan Documents, and such Assignee shall assume all such
rights and obligations, pursuant to an Assignment and Acceptance,
executed by such Assignee, such transferor Bank and the Agent (and, in
the case of an Assignee that is not then a Bank or an affiliate or
Related Fund of a Bank), subject to clause (iii) below, by the
Borrower); provided that (i) no interest may be sold by a Bank pursuant
to this paragraph (c) unless the Assignee shall agree to assume ratably
equivalent portions of the transferor Bank's Commitment, (ii) if a Bank
is assigning only a portion of its Commitment, then, the amount of the
Commitment being assigned (determined as of the effective date of the
assignment) shall be in an amount not less than $5,000,000 (except that
there shall be no such minimum if the assignment is to any Bank or any
affiliate or Related Fund of any Bank), and (iii) no interest may be
sold by a Bank pursuant to this paragraph (c) to any Assignee that is
not then a Bank or an affiliate or Related Fund of a Bank without the
consent of the Agent and (unless a Default has occurred and is
continuing) the Borrower, which consent shall not be unreasonably
withheld. Upon (A) execution of the LSTA Assignment by such transferor
Bank, such Assignee, the Agent and (if applicable) the Borrower, (B)
delivery of an executed copy of the LSTA Assignment to the Borrower and
the Agent, (C) payment by such Assignee to such transferor Bank of an
amount equal to the purchase price agreed between such transferor Bank
and such Assignee, (D) payment of a processing and recordation fee to
the Agent of (1) if such Assignee is a Bank or an affiliate or Related
Fund of a Bank, $1,000), and (ii) for any other Assignee, $3,500, and
(E) recordation of such assignment on the Register, as defined and
provided below, such Assignee shall for all purposes be a Bank party to
this Agreement and shall have all the rights and obligations of a Bank
under this Agreement to the same extent as if it were an original party
hereto with a Commitment as set forth in such instrument of assumption,
and the transferor Bank shall be released from its obligations
hereunder to a corresponding extent, and no further consent or action
by the Borrower, the Banks or the Agent shall be required. The Borrower
hereby designates the Agent to serve as the Borrower's Agent, solely
for purposes of this Section 10.08(c), to maintain a register (the
"Register") on which it will record the Commitments from time to time
of each of the Banks, the Loans made by each of the Banks and each
repayment in respect of the principal amount of the Loans of each Bank.
Failure to make any such recordation, or any error in such recordation
shall not affect the Borrower's obligations in respect of such Loans.
With respect to any Banks, the transfer of any Commitment of such Banks
and the rights to the principal of, and interest on, any Loan shall not
be effective until such transfer is recorded on the Register maintained
by the Agent with respect to ownership of such Commitment and Loans and
prior to such recordation all amounts owing to the transferor with
respect to such Commitment and Loans shall remain owing to the
transferor. The registration of assignment or transfer of all or part
of any Commitment and Loans shall be recorded by
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the Agent on the Register only upon the acceptance by the Agent of a
properly executed and delivered LSTA Assignment pursuant to this
Section 9.07(c). Coincident with the delivery of such an LSTA
Assignment to the Agent for acceptance and registration of assignment
or transfer of all or part of a Commitment and/or Loan, or as soon
thereafter as practicable, the assigning or transferor Bank shall
surrender any Note evidencing such Commitment and/or Loan, and
thereupon one or more new Notes in the aggregate principal amount so
assigned shall be issued to the new Bank and, if applicable, a new Note
shall be issued to the assigning or transferor Bank in the remaining
aggregate principal amount of its Commitment and/or Loan not so
assigned. The Borrower agrees to indemnify the Agent from and against
any and all losses, claims, damages and liabilities of whatsoever
nature which may be imposed on, asserted against or incurred by the
Agent in performing its duties under this Section 9.07(c); but
excluding any such losses, claims, damages and liabilities which are
determined by a final, non-appealable judgment of a court to have been
incurred by reason of the gross negligence or willful misconduct of the
Agent. Each Bank agrees to indemnify the Borrower and the Agent from
and against any and all losses, claims, damages and liabilities of
whatsoever nature which may be imposed on, asserted against or incurred
by the Borrower or the Agent by reason of the inaccuracy of any
information which is furnished by such Bank concerning such Bank or its
Lending Office or the amount assigned pursuant to the LSTA Assignment.
(d) The Borrower authorizes each Bank to disclose to any
Participant, Assignee or other transferee (each a "Transferee") and any
prospective Transferee which has executed on LSTA Confidentiality
Agreement any and all financial information in such Bank's possession
concerning the Borrower which has been delivered to such Bank by the
Borrower pursuant to this Agreement or which has been delivered to such
Bank by the Borrower in connection with such Bank's credit evaluation
prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater
payment under Section 8.03 than the transferor Bank would have been
entitled to receive with respect to the rights transferred, unless such
transfer is made with the Borrower's prior written consent or by reason
of the provisions of Section 8.02 or 8.03 requiring such Bank to
designate a different Lending Office under certain circumstances or at
a time when the circumstances giving rise to such greater payment did
not exist.
(f) Anything in this Section 9.07 to the contrary
notwithstanding, any Bank may assign and pledge all or any portion of
the Loans and/or obligations owing to it to any Federal Reserve Bank or
the United States Treasury as collateral security pursuant to
Regulation A of the Board of Governors of the Federal Reserve System
and any Operating Circular issued by such Federal Reserve Bank,
provided that any payment in respect of such assigned Loans and/or
obligations made by the Borrower to the assigning and/or pledging Bank
in accordance with the terms of this Agreement shall satisfy the
Borrower's obligations hereunder in respect of such assigned Loans
and/or obligations to the extent of such payment. No such assignment
shall release the assigning and/or pledging Bank from its obligations
hereunder.
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Section 9.08 Confidentiality. Each Bank agrees to exercise its best
efforts to keep any information delivered or made available by the Borrower to
it which is clearly indicated to be confidential information, confidential from
anyone other than persons employed or retained by such Bank who are or are
expected to become engaged in evaluating, approving, structuring or
administering the Loans; provided, however, that nothing herein shall prevent
any Bank from disclosing such information (i) to any other Bank or any affiliate
of any Bank, (ii) upon the order of any court or administrative agency, (iii)
upon the request or demand of any regulatory agency or authority having
jurisdiction over such Bank, (iv) which has been publicly disclosed, (v) to the
extent reasonably required in connection with any litigation to which the Agent,
any Bank or their respective affiliates may be a party, (vi) to the extent
reasonably required in connection with the exercise of any remedy hereunder,
(vii) to such Bank's legal counsel and independent auditors and (viii) to any
actual or proposed Participant, Assignee or other Transferee as permitted by
Section 9.07(d).
Section 9.09 Representation by Banks. Each Bank hereby represents that
it is a commercial lender or financial institution which makes loans in the
ordinary course of its business and that it will make its Loans hereunder for
its own account in the ordinary course of such business; provided, however,
that, subject to Section 9.07 of this Agreement, the disposition of the Note
held by that Bank shall at all times be within its exclusive control.
Section 9.10 Obligations Several. The obligations of each Bank
hereunder are several, and no Bank shall be responsible for the obligations or
commitment of any other Bank hereunder. Nothing contained in this Agreement and
no action taken by Banks pursuant hereto shall be deemed to constitute the Banks
to be a partnership, an association, a joint venture or any other kind of
entity. The amounts payable at any time hereunder to each Bank shall be a
separate and independent debt, and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement or any other Loan Document and
it shall not be necessary for any other Bank to be joined as an additional party
in any proceeding for such purpose.
Section 9.11 Survival of Certain Obligations. Sections 8.03(a),
8.03(b), 8.05 and 9.03, and the obligations of the Borrower thereunder, shall
survive, and shall continue to be enforceable notwithstanding the termination of
this Agreement and the Commitments and the payment in full of the principal of
and interest on all Loans.
Section 9.12 Georgia Law. This Agreement and each Note shall be
construed in accordance with and governed by the law of the State of Georgia.
Section 9.13 Consent to Jurisdiction. The Borrower (a) submits to
personal jurisdiction in the State of Georgia, the courts thereof and the United
States District Courts sitting therein, for the enforcement of this Agreement,
the Notes and the other Loan Documents, (b) waives any and all personal rights
under the law of any jurisdiction to object on any basis (including, without
limitation, inconvenience of forum) to jurisdiction or venue within the State of
Georgia for the purpose of litigation to enforce this Agreement, the Notes or
the other Loan Documents, and (c) agrees that service of process may be made
upon it in the manner prescribed in Section 9.01 for the giving of notice to the
Borrower. Nothing herein contained, however, shall prevent the Agent from
bringing any action or exercising any rights against any security
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and against the Borrower personally, and against any assets of the Borrower,
within any other state or jurisdiction.
Section 9.14 Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
Section 9.15 Miscellaneous. If any term or provision of this Agreement
or the application thereof to any Person or circumstances shall, to any extent,
be invalid or unenforceable, the remainder of such term or provision or the
application thereof to Persons or circumstances other than those as to which it
is held invalid or unenforceable shall not be affected thereby and shall be
valid and enforceable to the fullest extent permitted by law. The Loan Documents
contain the entire agreement of the parties with respect to the matters covered
and the transactions contemplated hereby and thereby, and no other agreement,
statement or promise made by any such party, or by any employee, officer, agent
or attorney of such party, which is not contained herein or therein shall be
valid or binding. The section and subsection headings of this Agreement are for
convenience only and shall not limit or otherwise affect any of the terms
thereof.
Section 9.16 Independence of Covenants. All covenants under this
Agreement and the other Loan Documents shall be given independent effect so that
if a particular action or condition is not permitted by any such covenant, the
fact that it would be permitted by an exception to, or would be otherwise
allowed by, another covenant shall not avoid the occurrence of a Default if such
action is taken or such condition exists.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
THE LIBERTY CORPORATION
By:
------------------------------
Name:
-------------------------
Title:
------------------------
Address:
X.X. Xxx 000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
ATTEST:
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
[CORPORATE SEAL]
(Remainder of this page intentionally left blank)
Signature Page of
364-DAY CREDIT AGREEMENT
Page 1 of 2
60
WACHOVIA BANK, N.A., as Agent and a Bank
Commitment: By:
------------------------------------
$100,000,000 Name:
-------------------------------
Title:
------------------------------
Notice Address:
Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx, X. X.
Xxxxxxx, Xxxxxxx 00000
Attention: Mr. J. Xxxxxxx Xxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
Lending Office:
Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx, X. X.
Xxxxxxx, Xxxxxxx 00000
Attention: Mr. J. Xxxxxxx Xxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
Signature Page of
364-DAY CREDIT AGREEMENT
Page 2 of 2
