1
EXHIBIT 10.31
$13,475,000
CREDIT AGREEMENT
AMONG
EMERALD CITY RADIO PARTNERS, L.P.,
AS BORROWER,
AND
COMMODORE MEDIA, INC.,
AS LENDER
DATED AS OF MARCH 14, 1997
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.1 Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.2 Procedure for Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.3 Repayment of the Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.4 Termination of the Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.5 Optional Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.6 Extension of Stated Maturity Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.7 Interest Rates and Payment Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.8 Computation of Interest and Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.9 Requirements of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.11 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.12 Interest Accrual for Income Tax Purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.1 Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.2 No Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.3 Corporate Existence; Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.4 Corporate Power; Authorization; Enforceable Obligations . . . . . . . . . . . . . . . . . . . . . . . . 14
3.5 No Legal Bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.6 No Material Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.7 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.8 Ownership of Property; Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.9 Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.11 Federal Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.12 Labor Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.13 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.14 Investment Company Act; Other Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.15 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.16 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.17 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.18 Accuracy of Information, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.19 Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.20 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.21 Regulation H . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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3.22 Compliance with Applicable Laws; FCC Matters; Station Licenses . . . . . . . . . . . . . . . . . . . . 19
SECTION 4. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.1 Conditions to the Extension of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 5. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.1 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.2 Certificates; Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.3 Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.4 Conduct of Business and Maintenance of Existence, etc. . . . . . . . . . . . . . . . . . . . . . . . . 25
5.5 Maintenance of Property; Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.6 Inspection of Property; Books and Records; Discussions . . . . . . . . . . . . . . . . . . . . . . . . 25
5.7 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.8 Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5.9 Additional Collateral, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 6. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
6.1 Limitation on Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
6.2 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
6.3 Limitation on Fundamental Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.4 Limitation on Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.5 Limitation on Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.6 Limitation on Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.7 Limitation on Investments, Loans and Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.8 Limitation on Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.9 Limitation on Sales and Leasebacks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.10 Limitation on Changes in Fiscal Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.11 Limitation on Negative Pledge Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.12 Limitation on Lines of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.13 Limitation on Amendments to Acquisition Documents . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 7. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 8. THE LENDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
8.1 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
8.2 Reliance by Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 9. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.1 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.3 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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9.4 Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
9.5 Payment of Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
9.6 Successors and Assigns; Participations and Assignments . . . . . . . . . . . . . . . . . . . . . . . . 36
9.7 Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
9.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
9.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
9.10 Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
9.11 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.12 Submission To Jurisdiction; Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.13 Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.14 WAIVERS OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
9.15 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
9.16 FCC Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
9.17 INDEMNIFICATION AND WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
9.18 ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
9.19 Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
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SCHEDULES:
1.1A Mortgaged Property
3.4 Consents, Authorizations, Filings and Notices
3.6 Litigation
3.19(a) UCC Filing Jurisdictions
3.19(b) Mortgage Filing Jurisdictions
3.22 FCC Licenses and Matters
6.1(c) Existing Indebtedness
6.2(f) Existing Liens
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D Form of Mortgage
E Form of Legal Opinion of Xxxx and Xxxx LLP
F Form of Note
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CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of March 14, 1997, by and between EMERALD
CITY RADIO PARTNERS, L.P., a Delaware limited partnership ("Borrower") and
COMMODORE MEDIA, INC., a Delaware corporation (the "Lender").
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"Asset Purchase Agreement" means that certain Asset Purchase Agreement
dated March 10, 1997, by and among the Borrower, as seller and WNOK Acquisition
Company, Inc., as purchaser, relating to the sale of all the assets and
licenses of the Stations.
"Affiliate": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person
means the power, directly or indirectly, either to (a) vote 51% or more of the
securities having ordinary voting power for the election of directors of such
Person or (b) direct or cause the direction of the management and policies of
such Person, whether by contract or otherwise.
"Agreement": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Assignee": as defined in Section 9.6(c).
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Business": as defined in Section 3.17.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
close.
"Capital Expenditures": for any period, with respect to any Person,
the aggregate of all expenditures by such Person and its Subsidiaries for the
acquisition or leasing (pursuant to a capital lease) of fixed or capital assets
or additions to equipment (including replacements, capitalized repairs and
improvements during such period) which should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries.
"Capital Lease Obligations": as to any Person, the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
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accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of six months or less from the date of
acquisition issued by any commercial bank organized under the laws of the
United States of America or any state thereof having combined capital and
surplus of not less than $500,000,000; and (c) commercial paper of an issuer
rated at least A-2 by Standard & Poor's Ratings Services or P-2 by Xxxxx'x
Investors Service, Inc., or carrying an equivalent rating by a nationally
recognized rating agency, if both of the two named rating agencies cease
publishing ratings of commercial paper issuers generally, and maturing within
six months from the date of acquisition.
"Closing Date": March 14, 1997.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all Property of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any
Security Document.
"Commitment": the obligation of the Lender to make the Loan to the
Borrower hereunder in a principal amount not to exceed $13,475,000.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the Borrower within the meaning of Section
4001 of ERISA or is part of a group which includes the Borrower and which is
treated as a single employer under Section 414 of the Code.
"Communications Act" means the Communications Act of 1934, as amended,
and all material rules, regulations and written policies of the FCC thereunder.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit B.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Default": any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
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"Discount Rate" means (i) on and before October 31, 1997, an interest
rate per annum equal to 6.00% and (ii) on and after November 1, 1997, an
interest rate per annum equal to 8.00%.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Domestic Subsidiary": any Subsidiary of the Borrower organized under
the laws of any jurisdiction within the United States of America.
"Environmental Laws": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of
Law (including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"Environmental Reports" means, collectively, the Preliminary
Environmental Evaluation WOIC-AM and WNOK-FM Radio Transmitter Sites, Columbia,
South Carolina dated December 18, 1989, prepared by Westinghouse Environmental
and Geotechnical Services, Inc and the Phase I (Modified) Environmental Site
Assessment Emerald City Radio Partners WOIC, WNOK and WMFX Radio Stations,
Columbia, South Carolina dated March 1997, prepared by International Technology
Corporation.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Event of Default": any of the events specified in Section 7,
provided that any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"Excluded Foreign Subsidiaries": any Foreign Subsidiary the pledge of
all of whose Capital Stock as Collateral would, in the good faith judgment of
the Borrower, result in adverse tax consequences to the Borrower.
"FCC" means the Federal Communications Commission of the United States
of America.
"Foreign Subsidiary": any Subsidiary of the Borrower that is not a
Domestic Subsidiary.
"GAAP": generally accepted accounting principles in the United States
of America as in effect from time to time set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and the statements and pronouncements of the
Financial Accounting Standards Board and the rules and regulations of the
Securities and Exchange Commission, or in such other statements by such other
entity as may be in general use by significant segments of the accounting
profession, which are applicable to the circumstances of the Borrower as of the
date of determination, except that for purposes of Section 6.1, GAAP shall be
determined on the basis of such principles in effect on the date hereof and
consistent with those used in the preparation of the audited financial
statements of the Borrower in respect of the fiscal year ended December 31,
1995, delivered pursuant to
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Section 3.1(b). In the event that any "Accounting Change" (as defined below)
shall occur and such change results in a change in the method of calculation of
financial covenants, standards or terms in this Agreement, then the Borrower
and the Lender agree to enter into negotiations in order to amend such
provisions of this Agreement so as to equitably reflect such Accounting Changes
with the desired result that the criteria for evaluating the Borrower's
financial condition shall be the same after such Accounting Changes as if such
Accounting Changes had not been made. Until such time as such an amendment
shall have been executed and delivered by the Borrower and the Lender, all
financial covenants, standards and terms in this Agreement shall continue to be
calculated or construed as if such Accounting Changes had not occurred.
"Accounting Changes" refers to changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of Certified Public
Accountants or, if applicable, the Securities and Exchange Commission (or
successors thereto or agencies with similar functions).
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantee and Collateral Agreement": the Guarantee and Collateral
Agreement to be executed and delivered by the Borrower and each Guarantor,
substantially in the form of Exhibit A, as the same may be amended,
supplemented or otherwise modified from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to induce the creation
of which the guaranteeing person has issued a reimbursement, counterindemnity
or similar obligation, in either case guaranteeing or in effect guaranteeing
any Indebtedness, leases, dividends or other obligations (the "primary
obligations") of any other third Person (the "primary obligor") in any manner,
whether directly or indirectly, including, without limitation, any obligation
of the guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (1) for the purchase or payment of
any such primary obligation or (2) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the owner of
any such primary obligation against loss in respect thereof; provided, however,
that the term Guarantee Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be deemed
to be the lower of (a) an amount equal to the stated or determinable amount of
the primary obligation in respect of which such Guarantee Obligation is made
and (b) the maximum amount for which such guaranteeing person may be liable
pursuant to the terms of the instrument embodying such Guarantee Obligation,
unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined by
the Borrower in good faith.
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"Guarantors": the collective reference to Cyclone Communications
Corporation, a Delaware corporation, Cyclone Radio LLC, a Delaware limited
liability company, and Xxxx X.Xxxxxxxx, Xx., in his individual capacity, Xxxx
X. Xxxxxxxx, in her individual capacity, and each Subsidiary Guarantor.
"Incur": as defined in Section 6.1.
"Indebtedness": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (other than
current trade payables incurred in the ordinary course of such Person's
business), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), (e) all Capital Lease
Obligations of such Person, (f) all obligations of such Person, contingent or
otherwise, as an account party under acceptance, letter of credit or similar
facilities, (g) all obligations of such Person, contingent or otherwise, to
purchase, redeem, retire or otherwise acquire for value any Capital Stock of
such Person, (h) all Guarantee Obligations of such Person in respect of
obligations of the kind referred to in clauses (a) through (g) above and (i)
all obligations of the kind referred to in clauses (a) through (h) above
secured by (or for which the holder of such obligation has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including,
without limitation, accounts and contract rights) owned by such Person, whether
or not such Person has assumed or become liable for the payment of such
obligation.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": means (i) the first day of each calendar
month to occur while the Loan is outstanding and (ii) the Maturity Date.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and any
capital lease having substantially the same economic effect as any of the
foregoing).
"Loan": means the loan made by the Lender pursuant to Section 2.1 of
this Agreement.
"Loan Documents": this Agreement, the Security Documents and the
Note.
"Loan Parties": the Borrower and each Guarantor which is a party to a
Loan Document.
"Material Adverse Effect": a material adverse effect on (a) the
business, assets, property, condition (financial or otherwise) or prospects of
the Borrower and its Subsidiaries taken as a
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whole or (b) the validity or enforceability of this Agreement or any of the
other Loan Documents or the rights or remedies of the Lender hereunder or
thereunder.
"Material Environmental Amount": an amount payable by the Borrower
and/or its Subsidiaries in excess of $50,000 for remedial costs, compliance
costs, compensatory damages, punitive damages, fines, penalties or any
combination thereof.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Maturity Date" means the earliest to occur of (i) the Stated Maturity
Date, (ii) the closing of the acquisition of the Stations pursuant to the Asset
Purchase Agreement, and (iii) the 75th day following the termination of the
Asset Purchase Agreement.
"Mortgaged Properties": the real properties listed on Schedule 1.1A,
as to which the Lender shall be granted a Lien pursuant to the Mortgages.
"Mortgages": each of the mortgages and deeds of trust made by any
Loan Party in favor of, or for the benefit of the Lender, substantially in the
form of Exhibit D (with such changes thereto as shall be advisable under the
law of the jurisdiction in which such mortgage or deed of trust is to be
recorded), as the same may be amended, supplemented or otherwise modified from
time to time.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Non-Excluded Taxes": as defined in Section 2.10(a).
"Note": means any promissory note of the Borrower evidencing the
Loan.
"Obligations": the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loan and
interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) the Loan and all other obligations and
liabilities of the Borrower to the Lender, whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, this Agreement, any other
Loan Document, or any other document made, delivered or given in connection
herewith or therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including, without limitation,
all fees, charges and disbursements of counsel to the Lender that are required
to be paid by the Borrower pursuant hereto) or otherwise.
"Participant": as defined in Section 9.6(b).
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"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA (or any successor).
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pro Forma Balance Sheet": as defined in Section 3.1(a).
"Properties": as defined in Section 3.17.
"Property": any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible,
including, without limitation, Capital Stock.
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsection .13, .14, .16, .18, .19 or .20 of PBGC Reg. Section
2615.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person
or any of its property is subject.
"Responsible Officer": the chief executive officer, president or
chief financial officer of the general partner of the Borrower, but in any
event, with respect to financial matters, the chief financial officer of the
Borrower.
"Security Documents": the collective reference to the Guarantee and
Collateral Agreement, the Mortgages and all other security documents hereafter
delivered to the Lender granting a Lien on any Property of any Person to secure
the obligations and liabilities of any Loan Party under any Loan Document.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
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"Solvent": when used with respect to any Person, means that, as of
any date of determination, (a) the amount of the "present fair saleable value"
of the assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise", as of such date, as such
quoted terms are determined in accordance with applicable federal and state
laws governing determinations of the insolvency of debtors, (b) the present
fair saleable value of the assets of such Person will, as of such date, be
greater than the amount that will be required to pay the liability of such
Person on its debts as such debts become absolute and matured, (c) such Person
will not have, as of such date, an unreasonably small amount of capital with
which to conduct its business, and (d) such Person will be able to pay its
debts as they mature. For purposes of this definition, (i) "debt" means
liability on a "claim", and (ii) "claim" means any (x) right to payment,
whether or not such a right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured or (y) right to an equitable remedy for breach of
performance if such breach gives rise to a right to payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed, contingent,
matured or unmatured, disputed, undisputed, secured or unsecured.
"Stated Maturity Date" means, initially, October 31, 1997, and
thereafter as extended pursuant to Section 2.6.
"Station Licenses" has the meaning defined in Section 3.22 of this
Agreement.
"Stations" means, collectively, radio station WNOK-FM, radio station
WOIC-AM, both serving the Columbia, South Carolina market and radio station
WMFX-FM serving the St. Xxxxxxx, South Carolina market.
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified,
all references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall
refer to a Subsidiary or Subsidiaries of the Borrower.
"Subsidiary Guarantor": each Subsidiary of the Borrower other than
any Excluded Foreign Subsidiary.
"Transferee": as defined in Section 9.6(g).
"U.S. Taxes": as defined in Section 9.6(d).
"Wholly Owned Subsidiary": as to any Person, any other Person all of
the Capital Stock of which (other than directors' qualifying shares required by
law) is owned by such Person directly and/or through other Wholly Owned
Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor that is
a Wholly Owned Subsidiary of the Borrower.
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1.2. Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined
in this Agreement shall have the defined meanings when used in the
other Loan Documents or any certificate or other document made or
delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or
thereto, accounting terms relating to the Borrower and its
Subsidiaries not defined in Section 1.1 and accounting terms partly
defined in Section 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP; provided that, if the
Borrower notifies the Lender that the Borrower requests an amendment
to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof
on the operation of such provision (or if the Lender notifies the
Borrower that it requests an amendment to any provision hereof for
such purpose), regardless of whether any such notice is given before
or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended
in accordance herewith.
(c) The words "hereof", "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such
terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitment. Subject to the terms and conditions hereof, the
Lender agrees to make a term loan (the "Loan") to the Borrower on the Closing
Date in an amount not to exceed the amount of the Commitment.
2.2 Procedure for Borrowing. The Borrower shall give the Lender
irrevocable notice (which notice must be received by the Lender prior to 10:00
A.M., New York City time, one Business Day prior to the anticipated Closing
Date) requesting that the Lender make the Loan on the Closing Date and
specifying the amount to be borrowed. The Loan made on the Closing Date shall
bear interest as set forth in Section 2.7. The Lender shall credit the account
of the Borrower on the books of the office of the Lender with the aggregate of
the amount requested in immediately available funds.
2.3 Repayment of the Loan. The Loan shall mature in two
installments, the first such installment to be a payment of principal of the
Loan equal to the purchase price under the Asset Purchase Agreement for the
radio station WNOK-FM, together with any accrued and unpaid interest thereon,
with the second installment to consist of the remaining principal balance of
the
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Loan, together with any accrued and unpaid interest thereon, due and payable on
the Maturity Date.
2.4 Termination of the Commitment. The Commitment shall terminate
upon the making of the Loan under Section 2.1.
2.5 Optional Prepayments. The Borrower may at any time and from time
to time prepay the Loan, in whole or in part, without premium or penalty, upon
irrevocable notice delivered to the Lender at least two Business Days prior
thereto, which notice shall specify the date and amount of prepayment. If any
such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with accrued interest to such
date on the amount prepaid. Amounts prepaid on the Loan may not be reborrowed.
Partial prepayments of the Loan shall be in an aggregate principal amount of
$1,000,000 or a whole multiple thereof.
2.6 Extension of Stated Maturity Date. The Stated Maturity Date may
be extended by the Borrower upon written notice to the Lender and provided that
(i) the conditions precedent under the Asset Purchase Agreement that are the
obligation of the Borrower shall have all been fulfilled, (ii) there shall not
exist any event which with the giving of notice or the passage of time, or
both, would constitute a default or an Event of Default under the Asset
Purchase Agreement or under any Loan Document, and (iii) the new requested date
shall not be more than 30 days after the date of the latest scheduled closing
date provided in the Asset Purchase Agreement.
2.7 Interest Rates and Payment Dates.
(a) Subject to Section 2.7(b), the Loan shall bear interest
in respect of the unpaid and outstanding principal amount thereof from
the date thereof until payment in full thereof at a per annum rate
equal to 30%.
(b) (i) If the Asset Purchase Agreement is terminated as a
result of a default by WNOK Acquisition, Inc. ("WNOK Acquisition") of
any of its material obligations under the Asset Purchase Agreement and
the Borrower is entitled pursuant to the terms of the Asset Purchase
Agreement to receive all of the xxxxxxx money or draw upon any deposit
letters of credit (and any deposit escrow agreement relating thereto,
if any) relating to the Asset Purchase Agreement, and to the extent
that the Obligations are paid or repaid on or before the Maturity
Date, then the rate of interest described in Section 2.7(a) shall
automatically adjust retroactively to the Discount Rate for the period
beginning on the date the Loan was made and ending on the Maturity
Date;
(ii)If the Asset Purchase Agreement is terminated by WNOK
Acquisition and the Borrower, pursuant to the terms of such
agreements, is entitled to receive all xxxxxxx money or deposit
letters of credit (and any deposit escrow agreement relating thereto,
if any), and to the extent that the Obligations are paid on or before
the Maturity Date, then the rate of interest described in Section
2.7(a) shall automatically adjust retroactively to the Discount Rate
for the period beginning on the date the Loan was made and ending on
the Maturity Date;
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(iii)If the Asset Purchase Agreement is terminated as a
result of a default by the Borrower and WNOK Acquisition has fully
performed its obligations thereunder to the date thereof, then no
adjustment shall be made and interest shall be payable as provided in
Section 2.7 (a);
(iv) If the Asset Purchase Agreement is terminated by WNOK
Acquisition due to an unsatisfied condition precedent contained
therein relating to any matter that is beyond the control of the
Borrower, then so long as the Borrower has, in good faith, diligently
pursued all commercially reasonable efforts to fulfill all of its
obligations under the Asset Purchase Agreement, and to the extent that
the Obligations are paid on or before the Maturity Date, then the rate
of interest described in Section 2.7(a) shall automatically adjust
retroactively to the Discount Rate for the period beginning on the
date the Loan was made and ending on the Maturity Date;
(v) If the Asset Purchase Agreement is terminated by the
Borrower due to an unsatisfied condition precedent contained therein
relating to any matter that is beyond the control of WNOK Acquisition,
so long as the Borrower has, in good faith, diligently pursued all
commercially reasonable efforts to fulfill all of its obligations
under the Asset Purchase Agreement, and to the extent that the
Obligations are paid on or before the Maturity Date, then the rate of
interest described in Section 2.7 (a) shall automatically adjust
retroactively to the Discount Rate for the period beginning on the
date the Loan was made and ending on the Maturity Date.
(c) In computing interest on the Loan, the date of funding
of the Loan shall be included and the date of payment shall be
excluded so long as such payment is received at or before 12:00 p.m.
(New York time) on the date when due. Subject to Section 2.7(f),
interest on the outstanding principal amount of the Loan shall be
payable each Interest Payment Date, provided that interest accruing
pursuant to Section 2.7(e) shall be payable from time to time on
demand.
(d) Subject to Section 2.7(f), interest paid on the Loan on
any Interest Payment Date other than the Maturity Date shall be paid
as if calculated at the Discount Rate for the applicable time period,
without regard to any permitted adjustments to the interest rate as
set forth in this Section 2.7; provided, however, that if it is
determined that the Discount Rate does not apply and the interest rate
is not thereafter subject to adjustment, then it shall be deemed that
the amount of interest in excess of what was actually paid shall be
added to the then outstanding principal amount of the Loan and such
amount shall be paid at the Maturity Date.
(e) (i) If all or a portion of the principal amount of the
Loan shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), all outstanding portions of the Loan
(whether or not overdue) shall bear interest at a rate per annum which
is equal to the rate set forth in Section 2.7(a) and (ii) if all or a
portion of any interest payable on the Loan or any commitment fee or
other amount payable hereunder shall not be paid when due (whether at
on an Interest Payment Date, by acceleration or otherwise), such
overdue amount shall bear interest at a rate per annum equal to the
rate set forth in Section 2.7(a), in each case, with respect to
clauses (i) and (ii) above, from the date of such non-payment until
such amount is paid in full (as well after as before
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judgment). Any amounts subject to the provisions of this Section
2.7(e) shall not have the benefit of any of the retroactive
adjustments otherwise provided for in this Section 2.7 even though any
such amounts may have otherwise been subject to such retroactive
adjustments.
(f) An amount equal to $300,000 of the interest to first
accrue on the Loan shall be added to the then outstanding principal
balance of the Loan as such interest accrues and would be payable and
shall bear interest at the rate set forth in Section 2.7(a) subject to
such adjustment as permitted by other provisions of this Section 2.7
and shall be paid on the Maturity Date. While interest on the Loan in
such an amount is accruing, interest payments on the Loan shall be
deferred until the first Interest Payment Date immediately following
the date on which the first such $300,000 in interest accrues.
2.8 Computation of Interest and Fees. Interest, fees and commissions
payable pursuant hereto shall be calculated on the basis of a 360-day year for
the actual days elapsed.
2.9 Requirements of Law.
(a) If the adoption of or any change in any Requirement of
Law or in the interpretation or application thereof or compliance by
the Lender with any request or directive (whether or not having the
force of law) from any Governmental Authority made subsequent to the
date hereof:
(i) shall subject the Lender to any tax of any kind
whatsoever with respect to this Agreement, or change the
basis of taxation of payments to the Lender in respect
thereof (except for Non-Excluded Taxes covered by Section
2.19 and changes in the rate of tax on the overall net
income of the Lender); or
(ii) shall impose on the Lender any other condition;
and the result of any of the foregoing is to increase the cost to the
Lender, by an amount which the Lender deems to be material, or to
reduce any amount receivable hereunder in respect thereof, then, in
any such case, the Borrower shall promptly pay the Lender, upon its
demand, any additional amounts necessary to compensate the Lender for
such increased cost or reduced amount receivable. If the Lender
becomes entitled to claim any additional amounts pursuant to this
Section 2.9, it shall promptly notify the Borrower of the event by
reason of which it has become so entitled.
(b) A certificate as to any additional amounts payable
pursuant to this Section 2.9 submitted by the Lender to the Borrower
shall be conclusive in the absence of manifest error. The obligations
of the Borrower pursuant to this Section 2.9 shall survive the
termination of this Agreement and the payment of the Loan and all
other amounts payable hereunder.
2.10 Taxes. All payments made by the Borrower under this Agreement
shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any
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Governmental Authority, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Lender as a result of a present or
former connection between the Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from the
Lender having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement or any other Loan Document). If any
such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any
amounts payable to the Lender hereunder, the amounts so payable to the Lender
shall be increased to the extent necessary to yield to the Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement. Whenever
any Non-Excluded Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Lender for its own account, a
certified copy of an original official receipt received by the Borrower showing
payment thereof. If the Borrower fails to pay any Non-Excluded Taxes when due
to the appropriate taxing authority or fails to remit to the Lender the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Lender for any incremental taxes, interest or penalties that may
become payable by the Lender as a result of any such failure. The agreements
in this Section 2.10 shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
2.11 Indemnity. The Borrower agrees to indemnify the Lender and to
hold the Lender harmless from any loss or expense which the Lender may sustain
or incur as a consequence of default by the Borrower in making any prepayment
after the Borrower has given a notice thereof in accordance with the provisions
of this Agreement. A certificate as to any amounts payable pursuant to this
Section 2.11 submitted to the Borrower by the Lender shall be conclusive in the
absence of manifest error. This covenant shall survive the termination of this
Agreement and the payment of the Loan and all other amounts payable hereunder.
2.12 Interest Accrual for Income Tax Purposes. For federal income
tax purposes only, the accrual of interest shall be taken into account by the
Borrower and the Lender in accordance with section 1.1275-4(b) of the Treasury
regulations. The Borrower and the Lender agree that (i) the "comparable yield"
for the Loan (within the meaning of section 1.1275-4(b)(4)(i) of the Treasury
regulations) shall equal the Discount Rate, and (ii) the "projected payment
schedule" for the Loan (within the meaning of section 1.1275-4(b)(4)(ii) of the
Treasury regulations) shall include a projected payment from the Borrower to
the Lender on each Interest Payment Date during the term of the Loan in an
amount that is equal to the amount of interest that would accrue on the Loan on
each such Interest Payment Date at the Discount Rate. The provisions of this
Section 2.12 are not intended to, and do not, modify any other provision of
this Agreement or the other Loan Documents.
2.13 Loan Amount Reduction. If the Asset Purchase Agreement is
terminated as a result of a default by WNOK Acquisition of any of its material
obligations under the Asset Purchase Agreement and the Borrower is entitled
pursuant to the terms of the Asset Purchase Agreement to receive all of the
xxxxxxx money or draw upon any deposit letters of credit (and any deposit
escrow agreement relating thereto, if any) relating to the Asset Purchase
Agreement then the Lender shall reduce the outstanding principal amount of the
Loan by an amount equal to $425,000 and the Borrower shall no further
obligation to repay such $425,000.
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SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Lender to enter into this Agreement and to make the
Loans and issue or participate in the Letters of Credit, the Borrower hereby
represents and warrants to the Lender that:
3.1 Financial Condition.
(a) The unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at December 31, 1996
(including the notes thereto) (the "Pro Forma Balance Sheet"), has
heretofore been furnished to the Lender, has been prepared based on
the best information available to the Borrower as of the date of
delivery thereof, and presents fairly on a the consolidated financial
position of Borrower and its consolidated Subsidiaries as at December
31, 1996, and the consolidated results of its operations and its
consolidated cash flows for such fiscal year then ended
(b) The audited consolidated balance sheets of the Borrower
and its consolidated Subsidiaries as at December 31, 1994, and
December 31, 1995, and the related consolidated statements of income
and of cash flows for the fiscal years ended on such dates, reported
on by and accompanied by an unqualified report from BDO Xxxxxxx,
L.L.P., independent public accountants, present fairly the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of its
operations and its consolidated cash flows for the respective fiscal
years then ended.
3.2 No Change. Since December 31, 1996 there has been no development
or event which has had or could reasonably be expected to have a Material
Adverse Effect.
3.3 Corporate Existence; Compliance with Law. The Borrower (a) is
duly formed, validly existing and in good standing under the laws of the
jurisdiction of its formation, (b) has the partnership power and authority, and
legal right, to own and operate its property, to lease the property it operates
as lessee and to conduct the business in which it is currently engaged, (c) is
duly qualified as a foreign limited partnership and in good standing under the
laws of each jurisdiction where its ownership, lease or operation of property
or the conduct of its business requires such qualification, and (d) is in
compliance with all Requirements of Law except to the extent that the failure
to comply therewith could not, in the aggregate, reasonably be expected to have
a Material Adverse Effect, and each of its Subsidiaries (w) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (x) has the corporate power and authority, and the legal right,
to own and operate its property, to lease the property it operates as lessee
and to conduct the business in which it is currently engaged, (y) is duly
qualified as a foreign corporation and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification and (z) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
3.4 Corporate Power; Authorization; Enforceable Obligations. Each
Loan Party has the corporate or partnership power and authority, and the legal
right, to make, deliver and perform
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the Loan Documents to which it is a party and, in the case of the Borrower, to
borrow hereunder. Each Loan Party has taken all necessary corporate or
partnership action to authorize the execution, delivery and performance of the
Loan Documents to which it is a party and, in the case of the Borrower, to
authorize the borrowings on the terms and conditions of this Agreement. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of this Agreement or any of the Loan
Documents, except (i) consents, authorizations, filings and notices described
in Schedule 3.4, which consents, authorizations, filings and notices have been
obtained or made and are in full force and effect, (ii) the filings referred to
in Section 3.19(b) and (iii) the consents of the FCC to the transfers of
control of the Station Licenses described in Section 9.16. Each Loan Document
has been duly executed and delivered on behalf of each Loan Party which is a
party thereto. This Agreement constitutes, and each other Loan Document upon
execution will constitute, a legal, valid and binding obligation of each Loan
Party which is a party thereto, enforceable against each such Loan Party in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
3.5 No Legal Bar. The execution, delivery and performance of this
Agreement and the other Loan Documents, the borrowings hereunder and the use of
the proceeds thereof will not violate any Requirement of Law or any Contractual
Obligation of the Borrower or any of its Subsidiaries and will not result in,
or require, the creation or imposition of any Lien on any of their respective
properties or revenues pursuant to any Requirement of Law or any such
Contractual Obligation (other than the Liens created by the Security
Documents). No Requirement of Law or Contractual Obligation applicable to the
Borrower or any of its Subsidiaries could reasonably be expected to have a
Material Adverse Effect.
3.6 No Material Litigation. Except as set forth on Schedule 3.6
attached hereto, no litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of the
Borrower, threatened by or against the Borrower or any of its Subsidiaries or
against any of their respective properties or revenues (a) with respect to any
of the Loan Documents or any of the transactions contemplated hereby or
thereby, or (b) which could reasonably be expected to have a Material Adverse
Effect.
3.7 No Default. Neither the Borrower nor any of its Subsidiaries is
in default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect.
No Default or Event of Default has occurred and is continuing.
3.8 Ownership of Property; Liens. Each of the Borrower and its
Subsidiaries has title in fee simple to, or a valid leasehold interest in, all
its real property, and good title to, or a valid leasehold interest in, all its
other property, and none of such property is subject to any Lien except as
permitted by Section 6.3.
3.9 Intellectual Property. The Borrower and each of its Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, copyrights,
technology, know-how and processes ("Intellectual Property") necessary for the
conduct of its business as currently conducted. No
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material claim has been asserted and is pending by any Person challenging or
questioning the use of any Intellectual Property or the validity or
effectiveness of any Intellectual Property, nor does the Borrower know of any
valid basis for any such claim. The use of Intellectual Property by the
Borrower and its Subsidiaries does not infringe on the rights of any Person in
any material respect.
3.10 Taxes. Each of the Borrower and its Subsidiaries has filed or
caused to be filed all Federal, state and other material tax returns which are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be); no tax Lien has
been filed, and, to the knowledge of the Borrower, no claim is being asserted,
with respect to any such tax, fee or other charge.
3.11 Federal Regulations. No part of the proceeds of the Loan will
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation G or Regulation U of the
Board as now and from time to time hereafter in effect or for any purpose which
violates the provisions of the Regulations of the Board. If requested by the
Lender, the Borrower will furnish to the Lender a statement to the foregoing
effect in conformity with the requirements of FR Form G-3 or FR Form U-1
referred to in said Regulation G or Regulation U, as the case may be.
3.12 Labor Matters. There are no strikes or other labor disputes
against the Borrower or any of its Subsidiaries pending or, to the knowledge of
the Borrower, threatened that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect. Hours worked by and
payment made to employees of the Borrower and its Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Requirement
of Law dealing with such matters that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect. All payments due
from the Borrower or any of its Subsidiaries on account of employee health and
welfare insurance that (individually or in the aggregate) could reasonably be
expected to have a Material Adverse Effect if not paid have been paid or
accrued as a liability on the books of the Borrower or the relevant Subsidiary.
3.13 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code. No termination of a Single Employer Plan has occurred, and no
Lien in favor of the PBGC or a Plan has arisen, during such five-year period.
The present value of all accrued benefits under each Single Employer Plan
(based on those assumptions used to fund such Plans) did not, as of the last
annual valuation date prior to the date on which this representation is made or
deemed made, exceed the value of the assets of such Plan allocable to such
accrued benefits by a material amount. Neither the Borrower nor any Commonly
Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan which has resulted or could reasonably be expected to result
in a material liability under ERISA, and neither the Borrower nor any Commonly
Controlled Entity would become subject to any material
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liability under ERISA if the Borrower or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which this representation is made or
deemed made. No such Multiemployer Plan is in Reorganization or Insolvent.
3.14 Investment Company Act; Other Regulations. No Loan Party is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) which limits its ability to incur Indebtedness.
3.15 Subsidiaries. The Borrower has no Subsidiaries.
3.16 Use of Proceeds. The proceeds of the Loan shall be used (i) to
refinance the loan between the Borrower and Clear Channel Radio, Inc. in an
amount to include outstanding principal amount thereof together with accrued
and unpaid interest thereon as of the Closing Date (but excluding any
prepayment penalty, additional interest, and additional fees) and in any event
not to exceed $12,870,800 (ii) to provide working capital for the Borrower in
an amount not to exceed $177,200 to be used for other general lawful purposes
of the Borrower and (iii) to provide funds for a settlement payment by the
Borrower to Clear Channel Radio, Inc. in an amount not to exceed $425,000.
3.17 Environmental Matters. Except as set forth in the Environment
Reports:
(a) The facilities and properties owned, leased or operated
by the Borrower or any of its Subsidiaries (the "Properties") do not
contain, and have not previously contained, any Materials of
Environmental Concern in amounts or concentrations or under
circumstances which (i) constitute or constituted a violation of, or
(ii) could give rise to liability under, any Environmental Law, except
in either case insofar as such violation or liability, or any
aggregation thereof, could not reasonably be expected to result in the
payment of a Material Environmental Amount.
(b) The Properties and all operations at the Properties are
in material compliance, and have in the last five years been in
material compliance, with all applicable Environmental Laws, and there
is no contamination at, under or about the Properties or violation of
any Environmental Law with respect to the Properties or the business
operated by the Borrower or any of its Subsidiaries (the "Business")
which could materially interfere with the continued operation of the
Properties or materially impair the fair saleable value thereof.
Neither the Borrower nor any of its Subsidiaries has assumed any
liability of any other Person under Environmental Laws.
(c) Neither the Borrower nor any of its Subsidiaries has
received or is aware of any notice of violation, alleged violation,
non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with
regard to any of the Properties or the Business, nor does the Borrower
have knowledge or reason to believe that any such notice will be
received or is being threatened, except insofar as such notice or
threatened notice, or any aggregation thereof, does not involve a
matter or matters that could reasonably be expected to result in the
payment of a Material Environmental Amount.
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(d) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of, or in
a manner or to a location which could give rise to liability under,
any Environmental Law, nor have any Materials of Environmental Concern
been generated, treated, stored or disposed of at, on or under any of
the Properties in violation of, or in a manner that could give rise to
liability under, any applicable Environmental Law, except insofar as
any such violation or liability referred to in thisparagraph, or any
aggregation thereof, could not reasonably be expected to result in the
payment of a Material Environmental Amount.
(e) No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of the Borrower,
threatened, under any Environmental Law to which the Borrower or any
Subsidiary is or will be named as a party with respect to the
Properties or the Business, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or
other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties or the Business,
except insofar as such proceeding, action, decree, order or other
requirement, or any aggregation thereof, could not reasonably be
expected to result in the payment of a Material Adverse Amount.
(f) There has been no release or threat of release of
Materials of Environmental Concern at or from the Properties, or
arising from or related to the operations of, the Borrower or any
Subsidiary in connection with the Properties or otherwise in
connection with the Business, in violation of or in amounts or in a
manner that could give rise to liability under Environmental Laws,
except insofar as any such violation or liability referred to in this
paragraph, or any aggregation thereof, could not reasonably be
expected to result in the payment of a Material Environmental Amount.
3.18 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document, or any other document,
certificate or statement furnished to the Lender, by or on behalf of any Loan
Party for use in connection with the transactions contemplated by this
Agreement or the other Loan Documents, contained as of the date such statement,
information, document or certificate was so furnished, any untrue statement of
a material fact or omitted to state a material fact necessary in order to make
the statements contained herein or therein not misleading. The projections and
pro forma financial information contained in the materials referenced above are
based upon good faith estimates and assumptions believed by management of the
Borrower to be reasonable at the time made, it being recognized by the Lender
that such financial information as it relates to future events is not to be
viewed as fact and that actual results during the period or periods covered by
such financial information may differ from the projected results set forth
therein by a material amount. As of the date hereof, the representations and
warranties of the Borrower in the Asset Purchase Agreement are true and correct
in all material respects. There is no fact known to any Loan Party that could
reasonably be expected to have a Material Adverse Effect that has not been
expressly disclosed herein, in the other Loan Documents, or in any other
documents, certificates and statements furnished to the Lender for use in
connection with the transactions contemplated hereby and by the other Loan
Documents.
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3.19 Security Documents.
(a) The Guarantee and Collateral Agreement is effective to
create in favor of the Lender, a legal, valid and enforceable security
interest in the Collateral described therein and proceeds thereof. In
the case of the Pledged Stock described in the Guarantee and
Collateral Agreement, when stock certificates representing such
Pledged Stock are delivered to the Lender, and in the case of the
other Collateral described in the Guarantee and Collateral Agreement,
when financing statements in appropriate form are filed in theoffices
specified on Schedule 3.19(a), the Guarantee and Collateral Agreement
shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the Loan Parties in such Collateral
and the proceeds thereof, as security for the Obligations (as defined
in the Guarantee and Collateral Agreement), in each case prior and
superior in right to any other Person.
(b) Each of the Mortgages is effective to create in favor
of the Lender, a legal, valid and enforceable Lien on the Mortgaged
Properties described therein and proceeds thereof, and when the
Mortgages are filed in the offices specified on Schedule 3.19(b), each
such Mortgage shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in the
Mortgaged Properties and the proceeds thereof, as security for the
Obligations (as defined in the relevant Mortgage), in each case prior
and superior in right to any other Person.
3.20 Solvency. Each Loan Party is, and after giving effect to the
incurrence of all Indebtedness and obligations being incurred in connection
herewith and therewith will be and will continue to be, Solvent.
3.21 Regulation H. No Mortgage encumbers improved real property
which is located in an area that has been identified by the Secretary of
Housing and Urban Development as an area having special flood hazards and in
which flood insurance has been made available under the National Flood
Insurance Act of 1968.
3.22 Compliance with Applicable Laws; FCC Matters; Station Licenses.
(a) Except as permitted or contemplated hereby, the
businesses of the Borrower and its Subsidiaries have been conducted in
compliance with each applicable law, ordinance, regulation, judgment,
decree, injunction, rule or order of the FCC or any other Governmental
Authority binding on the Borrower or any of its Subsidiaries or their
respective properties or assets, except for such instances of
noncompliance that do not and would not reasonably be expected to have
a Material Adverse Effect. Except as set forth on Schedule 3.22 as
attached hereto, no investigation or review by any Governmental
Authority with respect to the Borrower or any of its Subsidiaries is
pending or, to the Borrower's knowledge, threatened, except for such
investigations or reviews as do not and would not reasonably be
expected to have a Material Adverse Effect. Without limiting the
generality of the foregoing, the Borrower and its Subsidiaries have
complied with the Communications Act, all rules, regulations and
written policies of the FCC thereunder, all obligations with respect
to equal opportunity under applicable law, and all rules and
regulations of the Federal Aviation Administration applicable to the
towers used by the Stations, except, in each case, where the failure
to so
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comply does not and would not reasonably be expected to result in a
Material Adverse Effect. In addition, the Borrower and its
Subsidiaries have duly and timely filed, or caused to be so filed,
with the FCC all material reports, statements, documents,
registrations, filings or submissions with respect to the operation of
the Stations and the ownership thereof, including, without limitation,
applications for renewal of authority required by applicable law to be
filed (except where the failure to make such filings on a timely basis
does not have or would not reasonably be expected to have a Material
Adverse Effect). All such FCC filings complied with all material
applicable laws when made and no material deficiencies have been
asserted with respect to any such filings. The material required by
47 C.F.R. Section 73.3526 to be kept in the public inspection files
of the Stations is materially complete.
(b) Schedule 3.22 attached hereto lists (i) all licenses,
permits and other authorizations, including the expiration dates
thereof, issued to the Borrower or any of its Subsidiaries by the FCC
relating to the Stations and held by them as of the date of this
Agreement and (ii) all licenses, permits or authorizations issued to
the Borrower or any of its Subsidiaries by any other Governmental
Authority which are material to the operations of the Stations and
held by it as of the date of this Agreement, the loss of which have or
would reasonably be expected to have a Material Adverse Effect. Such
licenses, permits and authorizations, and all pending applications for
modification, extension or renewal thereof or for new licenses,
permits, permissions or authorizations, are collectively referred to
herein as the "Station Licenses". The Stations have been operated in
all material respects in accordance with the terms of the Station
Licenses held by the Borrower or its Subsidiaries. There are no
material proceedings pending or, to the Borrower's knowledge,
threatened with respect to the Borrower's or any of its Subsidiaries'
ownership or operation of the Stations which reasonably may be
expected to result in the revocation, material adverse modification,
non-renewal or suspension of any of the Station Licenses, the issuance
against the Borrower or any of its Subsidiaries of any cease and
desist order, or the imposition of any administrative actions by the
FCC or any other Governmental Authority with respect to the Station
Licenses, or which reasonably may be expected to adversely affect the
Stations' ability to operate as currently operated. Except as set
forth on Schedule 3.22 attached hereto, to the Borrower's knowledge,
no other broadcast station or radio communications facility is causing
interference to the Stations' transmissions beyond that which is
allowed by FCC rules and regulations. The Borrower has no reason to
believe that the FCC will not renew the Station Licenses issued by the
FCC in the ordinary course of business.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to the Extension of Credit. The agreement of the
Lender to make the extension of credit requested to be made by it is subject to
the satisfaction, prior to or concurrently with the making of such extension of
credit on the Closing Date, of the following conditions precedent, provided
that the Lender may waive any of the following conditions precedent as it may
determine in its sole discretion:
(a) Loan Documents. The Lender shall have received (i)
this Agreement, executed and delivered by a duly authorized officer of
the Borrower, (ii) the Guarantee and Collateral Agreement, executed
and delivered by a duly authorized officer of the
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Borrower and each Guarantor, (iii) each of the Mortgages, executed and
delivered by a duly authorized officer of each party thereto, and (iv)
the Note conforming to the requirements hereof and executed and
delivered by a duly authorized officer of the Borrower.
(b) Approvals. All governmental and third party approvals
(including, subject to Section 5.10, landlords' consents) necessary in
connection with this Agreement, the continuing operations of the
Borrower and its Subsidiaries and the transactions contemplated hereby
shall have been obtained and be in full force and effect, and all
applicable waiting periods shall have expired without any action being
taken or threatened by any competent authority which would restrain,
prevent or otherwise impose adverse conditions on the financing
contemplated hereby.
(c) Asset Purchase Agreement. The Lender shall have
received the Asset Purchase Agreement, executed and delivered by an
authorized officer of each party thereto.
(d) Certificates of Partnership and Incorporation. Copies
of the Certificate of Limited Partnership of the Borrower and
appropriate corporate document for each of its Subsidiaries and the
other Loan Parties, together with all amendments thereto, certified by
the appropriate governmental officer in its jurisdiction of
organization or formation and copies of the Agreement of Limited
Partnership of the Borrower, together with all amendments thereto,
certified by a Responsible Officer as being in full force and effect.
(e) Good Standing Certificates. Certificates of good
standing for each of the Borrower, its Subsidiaries, its general
partner, and its limited partner certified by the appropriate
governmental officer in its respective jurisdiction of formation or
organization.
(f) Existing Indebtedness; Release of Liens. All existing
Indebtedness for borrowed money of the Borrower and its Subsidiaries
shall have been repaid (or shall be repaid promptly from the proceeds
of the Loan) and all terminations and releases of Liens securing such
Indebtedness shall have been executed and delivered to the Lender
together with a written release by the lender thereof of all claims
and causes of action against the Borrower or any of its property.
(g) Lien Searches. The Lender shall have received the
results of a recent lien search in each of the jurisdictions where
assets of the Loan Parties are located, and such search shall reveal
no liens on any of the assets of the Borrower or its Subsidiaries
except for liens permitted by Section 6.2.
(h) Environmental Audit. The Lender shall have received an
environmental audit with respect to the real properties of the
Borrower and its Subsidiaries specified by the Lender.
(i) Closing Certificate. The Lender shall have received, a
certificate of each Loan Party, dated the Closing Date, substantially
in the form of Exhibit C, with appropriate insertions and attachments.
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(j) Legal Opinions. The Lender shall have received the
following executed legal opinions:
(i) the legal opinion of Xxxx and Xxxx LLP, counsel to
the Borrower and its Subsidiaries, substantially in the form
of Exhibit E; and
(ii) the legal opinion of local counsel in South Carolina
and of such other special and local counsel as may be
required by the Lender.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Lender may
reasonably require.
(k) Pledged Stock; Stock Powers. The Lender shall have
received the certificates representing the shares of Capital Stock
pledged pursuant to the Guarantee and Collateral Agreement, together
with an undated stock power for each such certificate executed in
blank by a duly authorized officer of the pledgor thereof.
(l) Filings, Registrations and Recordings. Each document
(including, without limitation, any Uniform Commercial Code financing
statement) required by the Security Documents or under law or
reasonably requested by the Lender to be filed, registered or recorded
in order to create in favor of the Lender, a perfected Lien on the
Collateral described therein, prior and superior in right to any other
Person (other than with respect to Liens expressly permitted by
Section 6.2), shall be in proper form for filing, registration or
recordation.
(m) Mortgages, etc.
(i) The Lender shall have received a Mortgage with
respect to each Mortgaged Property, executed and delivered
by a duly authorized officer of each party thereto.
(ii) If requested by the Lender, the Lender shall have
received, and the title insurance company issuing the policy
referred to in Section 5.1(m)(iii) (the "Title Insurance
Company") shall have received, maps or plats of an as-built
survey of the sites of the Mortgaged Properties certified to
the Lender and the Title Insurance Company in a manner
satisfactory to them, dated a date satisfactory to the
Lender and the Title Insurance Company by an independent
professional licensed land surveyor satisfactory to the
Lender and the Title Insurance Company, which maps or plats
and the surveys on which they are based shall be made in
accordance with the Minimum Standard Detail Requirements for
Land Title Surveys jointly established and adopted by the
American Land Title Association and the American Congress on
Surveying and Mapping in 1992, and, without limiting the
generality of the foregoing, there shall be surveyed and
shown on such maps, plats or surveys the following: (A) the
locations on such sites of all the buildings, structures and
other improvements and the established building setback
lines; (B) the lines of streets abutting the sites and width
thereof; (C) all access and other easements appurtenant to
the sites; (D) all roadways, paths, driveways, easements,
encroachments and overhanging projections and
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similar encumbrances affecting the site, whether recorded,
apparent from a physical inspection of the sites or
otherwise known to the surveyor; (E) any encroachments on
any adjoining property by the building structures and
improvements on the sites; (F) if the site is described as
being on a filed map, a legend relating the survey to said
map; and (G) the flood zone designations, if any, in which
the Mortgaged Properties are located.
(iii) The Lender shall have received in respect of
each Mortgaged Property a mortgagee's title insurance policy
(or policies) or marked up unconditional binder for such
insurance. Each such policy shall (A) be in an amount
satisfactory to the Lender; (B) be issued at ordinary rates;
(C) insure that the Mortgage insured thereby creates a valid
first Lien on such Mortgaged Property free and clear of all
defects and encumbrances, except as disclosed therein; (D)
name the Lender as the insured thereunder; (E) be in the
form of ALTA Loan Policy - 1970 (Amended 10/17/70 and
10/17/84) (or equivalent policies); (F) contain such
endorsements and affirmative coverage as the Lender may
reasonably request and (G) be issued by title companies
satisfactory to the Lender (including any such title
companies acting as co-insurers or reinsurers, at the option
of the Lender). The Lender shall have received evidence
satisfactory to it that all premiums in respect of each such
policy, all charges for mortgage recording tax, and all
related expenses, if any, have been paid.
(iv) If requested by the Lender, the Lender shall have
received (A) a policy of flood insurance which (1) covers
any parcel of improved real property which is encumbered by
any Mortgage (2) is written in an amount not less than the
outstanding principal amount of the indebtedness secured by
such Mortgage which is reasonably allocable to such real
property or the maximum limit of coverage made available
with respect to the particular type of property under the
National Flood Insurance Act of 1968, whichever is less, and
(3) has a term ending not later than the maturity of the
Indebtedness secured by such Mortgage and (B) confirmation
that the Borrower has received the notice required pursuant
to Section 208.8(e)(3) of Regulation H of the Board.
(v) The Lender shall have received a copy of all
recorded documents referred to, or listed as exceptions to
title in, the title policy or policies referred to in
Section 5.1(m)(iii) and a copy of all other material
documents affecting the Mortgaged Properties.
(n) Insurance. The Lender shall have received insurance
certificates satisfying the requirements of Section 5.3 of the
Guarantee and Collateral Agreement.
(o) Representations and Warranties. Each of the
representations and warranties made by any Loan Party in or pursuant
to the Loan Documents shall be true and correct in all material
respects on and as of such date as if made on and as of such date.
(p) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
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(q) Documentation. The Lender shall have received such
other documents as the Lender may reasonably request, all in form and
substance reasonably satisfactory to the Lender.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Loan or other amount
is owing to the Lender hereunder, the Borrower shall and shall cause each of
its Subsidiaries to:
5.1 Financial Statements. Furnish to the Lender:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower, a copy of the
audited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such year and the related
audited consolidated statements of income and of cash flows for such
year, setting forth in each case in comparative form the figures for
the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope
of the audit, by BDO Xxxxxxx, L.L.P. or other independent certified
public accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than
30 days after the end of each of the first three quarterly periods of
each fiscal year of the Borrower, the unaudited consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at the end
of such quarter and the related unaudited consolidated statements of
income and of cash flows for such quarter and the portion of the
fiscal year through the end of such quarter, setting forth in each
case in comparative form the figures for the previous year, certified
by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments); and
(c) as soon as available, but in any event not later than
20 days after the end of each month occurring during each fiscal year
of the Borrower (other than the third, sixth, ninth and twelfth such
month), the unaudited consolidated balance sheets of the Borrower and
its Subsidiaries as at the end of such month and the related unaudited
consolidated statements of income and of cash flows for such month and
the portion of the fiscal year through the end of such month, setting
forth in each case in comparative form the figures for the previous
year, certified by a Responsible Officer as being fairly stated in all
material respects (subject to normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
5.2 Certificates; Other Information. Furnish to the Lender:
(a) concurrently with the delivery of the financial
statements referred to in Section 5.1(a), a certificate of the
independent certified public accountants reporting on such financial
statements stating that in making the examination necessary therefor
no
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knowledge was obtained of any Default or Event of Default, except as
specified in such certificate;
(b) concurrently with the delivery of any financial
statements pursuant to Section 5.1, (i) a certificate of a Responsible
Officer stating that, to the best of each such Responsible Officer's
knowledge, each Loan Party during such period has observed or
performed all of its covenants and other agreements, and satisfied
every condition, contained in this Agreement and the other Loan
Documents to which it is a party to be observed, performed or
satisfied by it, and that such Responsible Officer has obtained
noknowledge of any Default or Event of Default except as specified in
such certificate and (ii) in the case of quarterly or annual financial
statements, a Compliance Certificate containing all information
necessary for determining compliance by the Borrower and its
Subsidiaries with the provisions of this Agreement referred to therein
as of the last day of the fiscal quarter or fiscal year of the
Borrower, as the case may be;
(c) within 45 days after the end of each fiscal quarter of
the Borrower, a narrative discussion and analysis of the financial
condition and results of operations of the Borrower and its
Subsidiaries for such fiscal quarter and for the period from the
beginning of the then current fiscal year to the end of such fiscal
quarter, covering such periods and to the comparable periods of the
previous year;
(d) promptly, such additional financial and other
information as the Lender may from time to time reasonably request.
5.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all
its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Borrower or its Subsidiaries, as the case may be.
5.4 Conduct of Business and Maintenance of Existence, etc. (a) (i)
Continue to engage in business of the same general type as now conducted by it,
(ii) preserve, renew and keep in full force and effect its corporate existence
and (iii) take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business,
except, in each case, as otherwise permitted by Section 6.4 and except, in the
case of clause (iii) above, to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (b) comply with
all Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect.
5.5 Maintenance of Property; Insurance. (a) Keep all property
useful and necessary in its business in good working order and condition,
ordinary wear and tear excepted, and in compliance with all material FCC rules
and regulations and (b) maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and against at
least such risks (but including in any event public liability, product
liability and business interruption) as are usually insured against in the same
general area by companies engaged in the same or a similar business.
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5.6 Inspection of Property; Books and Records; Discussions. (a)
Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of
all dealings and transactions in relation to its business and activities and
(b) subject only to applicable rules and regulations of the FCC, permit
representatives of the Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of the Borrower and
its Subsidiaries with officers and employees of the Borrower and its
Subsidiaries and with its independent certified public accountants.
5.7 Notices. Promptly give notice to the Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any
Contractual Obligation of the Borrower or any of its Subsidiaries or
(ii) litigation, investigation or proceeding which may exist at any
time between the Borrower or any of its Subsidiaries and any
Governmental Authority and which has a reasonable likelihood of being
adversely determined, which in either case, if not cured or if
adversely determined, as the case may be, could reasonably be expected
to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or
any of its Subsidiaries in which the amount involved is $50,000 or
more and not covered by insurance or in which injunctive or similar
relief is sought;
(d) the following events, as soon as possible and in any
event within 30 days after the Borrower knows or has reason to know
thereof: (i) the occurrence of any Reportable Event with respect to
any Plan, a failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Plan or any withdrawal
from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the
taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of,
any Plan; and
(e) any development or event which has had or could
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this Section 5.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower or the relevant Subsidiary
proposes to take with respect thereto.
5.8 Environmental Laws.
(a) Comply in all material respects with, and ensure
compliance in all material respects by all tenants and subtenants, if
any, with, all applicable Environmental Laws, and obtain and comply in
all material respects with and maintain, and ensure that all tenants
and subtenants obtain and comply in all material respects with and
maintain, any
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and all licenses, approvals, notifications, registrations or permits
required by applicable Environmental Laws.
(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions
required under Environmental Laws and promptly comply in all material
respects with all lawful orders and directives of all Governmental
Authorities regarding Environmental Laws.
5.9 Additional Collateral, etc.
(a) With respect to any Property acquired after the Closing
Date by the Borrower or any of its Subsidiaries (other than any
Property described in paragraph (b), (c) or (d) below) as to which the
Lender does not have a perfected Lien, promptly (i) execute and
deliver to the Lender such amendments to the Guarantee and Collateral
Agreement or such other documents as the Lender deems necessary or
advisable in order to grant to the Lender, a security interest in such
Property and (ii) take all actions necessary or advisable to grant to
the Lender a perfected first priority security interest in such
Property, including without limitation, the filing of Uniform
Commercial Code financing statements in such jurisdictions as may be
required by the Guarantee and Collateral Agreement or by law or as may
be requested by the Lender.
(b) With respect to any fee interest in any real estate
acquired after the Closing Date by the Borrower or any of its
Subsidiaries, promptly (i) execute and deliver a first priority
mortgage or deed of trust, as the case may be, in favor of the Lender
covering such real estate, in form and substance reasonably
satisfactory to the Lender, (ii) if requested by the Lender, provide
the Lender with (x) title and extended coverage insurance covering
such real estate in an amount at least equal to the purchase price of
such real estate (or such other amount as shall be reasonably
specified by the Lender) as well as a current ALTA survey thereof,
together with a surveyor's certificate and (y) any consents or
estoppels reasonably deemed necessary or advisable by the Lender in
connection with such mortgage or deed of trust, each of the foregoing
in form and substance reasonably satisfactory to the Lender and (iii)
if requested by the Lender, deliver to the Lender legal opinions
relating to the matters described above, which opinions shall be in
form and substance, and from counsel, reasonably satisfactory to the
Lender.
(c) With respect to any new Subsidiary (other than an
Excluded Foreign Subsidiary) created or acquired after the Closing
Date by the Borrower or any of its Subsidiaries, promptly (i) execute
and deliver to the Lender such amendments to the Guarantee and
Collateral Agreement as the Lender deems necessary or advisable in
order to grant to the Lender, a perfected first priority security
interest in the Capital Stock of such new Subsidiary which is owned by
the Borrower or any of its Subsidiaries, (ii) deliver to the Lender
the certificates representing such Capital Stock, together with
undated stock powers, in blank, executed and delivered by a duly
authorized officer of the Borrower or such Subsidiary, as the case may
be, (iii) cause such new Subsidiary (A) to become a party to the
Guarantee and Collateral Agreement and (B) to take such actions
necessary or advisable to grant to the Lender a perfected first
priority security interest in the Collateral described in the
Guarantee and Collateral Agreement with respect to such
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new Subsidiary, including, without limitation, the filing of Uniform
Commercial Code financing statements in such jurisdictions as may be
required by the Guarantee and Collateral Agreement or by law or as may
be requested by the Lender, and (iv) if requested by the Lender,
deliver to the Lender legal opinions relating to the matters described
above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Lender.
(d) With respect to any new Excluded Foreign Subsidiary
created or acquired after the Closing Date by the Borrower or any of
its Subsidiaries, promptly (i) execute and deliver to the Lender such
amendments to the Guarantee and Collateral Agreement as the Lender
deems necessary or advisable in order to grant to the Lender, a
perfected first priority security interest in the Capital Stock of
such new Subsidiary which is owned by the Borrower or any of its
Subsidiaries (provided that in no event shall more than 65% of the
total outstanding Capital Stock of any such new Subsidiary be required
to be so pledged), (ii) deliver to the Lender the certificates
representing such Capital Stock, together with undated stock powers,
in blank, executed and delivered by a duly authorized officer of the
Borrower or such Subsidiary, as the case may be and (iii) if requested
by the, deliver to the Lender legal opinions relating to the matters
described above, which opinions shall be in form and substance, and
from counsel, reasonably satisfactory to the Lender.
5.10 Landlord's Consents. The Borrower shall use commercial best
efforts to provide to the Lender a landlord's consent for each leased property
occupied, operated or otherwise leased by the Borrower in form and substance
satisfactory to the Lender on or before the 45th day following the Closing
Date.
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Loan or other amount
is owing to the Lender hereunder, the Borrower shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly:
6.1 Limitation on Indebtedness. Create, incur, assume or suffer to
exist (in each case, to "Incur") any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan
Document;
(b) Capital Lease Obligations in an aggregate principal
amount not to exceed $100,000 at any one time outstanding;
(c) Indebtedness outstanding on the date hereof and listed
on Schedule 6.1(c); and
(d) guarantees made in the ordinary course of business by
the Borrower or any of its Subsidiaries of obligations of any
Wholly Owned Subsidiary Guarantor.
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6.2 Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its Property or revenues, whether now owned or hereafter
acquired, except for:
(a) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings, provided that
adequate reserves with respect thereto are maintained on the books of
the Borrower or its Subsidiaries, as the case may be, in conformity
with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 30 days or
which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business
which, in the aggregate, are not substantial in amount and which do
not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of
the business of the Borrower or any of its Subsidiaries;
(f) Liens in existence on the date hereof listed on
Schedule 6.2(f);
(g) Liens created pursuant to the Security Documents; and
(h) any interest or title of a lessor under any lease
entered into by the Borrower or any other Subsidiary in the ordinary
course of its business and covering only the assets so leased.
6.3 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or substantially all of its property,
business or assets, or make any material change in its present method of
conducting business.
6.4 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the sale or other disposition of obsolete or worn out
property in the ordinary course of business;
(b) the sale of inventory in the ordinary course of
business; and
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(c) the sale or issuance of any Subsidiary's Capital Stock to the
Borrower or any Wholly Owned Subsidiary Guarantor.
6.5 Limitation on Dividends. Declare or pay any dividend (other than
dividends payable solely in common stock of the Person making such dividend)
on, or make any payment on account of, or set apart assets for a sinking or
other analogous fund for, the purchase, redemption, defeasance, retirement or
other acquisition of, any shares of any class of Capital Stock of the Borrower
or any Subsidiary or any warrants or options to purchase any such Capital
Stock, whether now or hereafter outstanding, or make any other distribution in
respect thereof, either directly or indirectly, whether in cash or property or
in obligations of the Borrower or any Subsidiary (collectively, "Restricted
Payments"), except that any Subsidiary may make Restricted Payments to the
Borrower or any Wholly Owned Subsidiary Guarantor. Notwithstanding any other
provision of this Agreement, upon the complete and final payment of the
Obligations hereunder and the consummation of the acquisition under the Asset
Purchase Agreement, then the Borrower may declare or pay a dividend solely from
cash that constitutes "Excluded Assets" as defined in the Asset Purchase
Agreement.
6.6 Limitation on Capital Expenditures. Make or commit to make (by
way of the acquisition of securities of a Person or otherwise) any Capital
Expenditure, except (a) Capital Expenditures of the Borrower and its
Subsidiaries in the ordinary course of business not exceeding $300,000.
6.7 Limitation on Investments, Loans and Advances. Make any advance,
loan, extension of credit (by way of guaranty or otherwise) or capital
contribution to, or purchase any stock, bonds, notes, debentures or other
securities of or any assets constituting a business unit of, or make any other
investment in, any Person, except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 6.1; and
(d) investments by the Borrower or any of its Subsidiaries
in the Borrower or any Wholly Owned Subsidiary Guarantor.
6.8 Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of Property or the rendering of any service, with any Affiliate (other
than the Borrower or any Wholly Owned Subsidiary Guarantor) unless such
transaction is (a) otherwise permitted under this Agreement, (b) in the
ordinary course of business of the Borrower or such Subsidiary, as the case may
be, and (c) upon fair and reasonable terms no less favorable to the Borrower or
such Subsidiary, as the case may be, than it would obtain in a comparable arm's
length transaction with a Person which is not an Affiliate.
6.9 Limitation on Sales and Leasebacks. Enter into any arrangement
with any Person providing for the leasing by the Borrower or any Subsidiary of
real or personal property which has been or is to be sold or transferred by the
Borrower or such Subsidiary to such Person or to
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any other Person to whom funds have been or are to be advanced by such Person
on the security of such property or rental obligations of the Borrower or such
Subsidiary.
6.10 Limitation on Changes in Fiscal Periods. Permit the fiscal year
of the Borrower to end on a day other than December 31 or change the Borrower's
method of determining fiscal quarters.
6.11 Limitation on Negative Pledge Clauses. Enter into with any
Person, or suffer to exist, any agreement, other than (a) this Agreement and
the other Loan Documents and (b) in the case of clause (i) below only, any
agreements governing any purchase money Liens or Capital Lease Obligations
otherwise permitted hereby (in which case, any prohibition or limitation shall
only be effective against the assets financed thereby), which prohibits or
limits the ability of the Borrower or any of its Subsidiaries to (i) create,
incur, assume or suffer to exist any Lien upon any of its Property or revenues,
whether now owned or hereafter acquired, or (ii) pay dividends or make other
distributions, or pay any Indebtedness owed, to the Borrower or any of its
Subsidiaries.
6.12 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary, except for those businesses in which
the Borrower and its Subsidiaries are engaged on the date of this Agreement.
6.13 Limitation on Amendments to Acquisition Documents. (a) Amend,
supplement or otherwise modify (pursuant to a waiver or otherwise) the terms
and conditions of the Asset Purchase Agreement.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of the
Loan when due in accordance with the terms hereof; or
(b) The Borrower shall fail to pay any interest on the
Loan, or any other amount payable hereunder or under any other Loan
Document, when due in accordance with the terms hereof, and such
failure to pay shall continue unremedied for a period of five days; or
(c) Any representation or warranty made or deemed made by
any Loan Party herein or in any other Loan Document or which is
contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement
or any such other Loan Document shall prove to have been inaccurate in
any material respect on or as of the date made or deemed made; or
(d) Any Loan Party shall default in the observance or
performance of any agreement contained in clause (i) or (ii) of
Section 5.4(a) (with respect to the Borrower only), Section 5.7(a),
Section 6, Section 5 of the Guarantee and Collateral Agreement or
Section 3 of any Mortgage; or
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(e) Any Loan Party shall default in the observance or
performance of any other agreement contained in this Agreement or any
other Loan Document (other than as provided in paragraphs (a) through
(c) of this Section), and such default shall continue unremedied for a
period of 30 days after notice from the Lender; or
(f) The Borrower or any of its Subsidiaries shall (i)
default in making any payment of any principal of any Indebtedness
(including, without limitation, any Guarantee Obligation, but
excluding the Loans) on the scheduled or original due date with
respect thereto; or (ii) default in making any payment of any interest
on any such Indebtedness beyond the period of grace, if any, provided
in the instrument or agreement under which such Indebtedness was
created; or (iii) default in the observance or performance of any
other agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause,
or to permit the holder or beneficiary of such Indebtedness (or a
trustee or agent on behalf of such holder or beneficiary) to cause,
with the giving of notice if required, such Indebtedness to become due
prior to its stated maturity or (in the case of any such Indebtedness
constituting a Guarantee Obligation) to become payable; provided, that
a default, event or condition described in clause (i), (ii) or (iii)
of this paragraph (e) shall not at any time constitute an Event of
Default under this Agreement unless, at such time, one or more
defaults, events or conditions of the type described in clauses (i),
(ii) and (iii) of this paragraph (e) shall have occurred and be
continuing with respect to Indebtedness the outstanding principal
amount of which exceeds in the aggregate $50,000; or
(g) (i) The Borrower or any of its Subsidiaries shall
commence any case, proceeding or other action (A) under any existing
or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking
to have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian, conservator or
other similar official for it or for all or any substantial part of
its assets, or the Borrower or any of its Subsidiaries shall make a
general assignment for the benefit of its creditors; or (ii) there
shall be commenced against the Borrower or any of its Subsidiaries any
case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any
such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall
be commenced against the Borrower or any of its Subsidiaries any case,
proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order
for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof;
or (iv) the Borrower or any of its Subsidiaries shall take any action
in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or (v) the Borrower or any of its Subsidiaries shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
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(h) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan, (ii) any "accumulated funding
deficiency" (as defined in Section 302 of ERISA), whether or not
waived, shall exist with respect to any Plan or any Lien in favor of
the PBGC or a Plan shall arise on the assets of the Borrower or any
Commonly Controlled Entity, (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee appointed,
or a trustee shall be appointed, to administer or to terminate, any
Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion
of the Lender, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the Borrower or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Lender is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could, in the sole judgment of the
Lender, reasonably be expected to have a Material Adverse Effect; or
(i) One or more judgments or decrees shall be entered
against the Borrower or any of its Subsidiaries involving in the
aggregate a liability (not paid or fully covered by insurance as to
which the relevant insurance company has acknowledged coverage) of
$50,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 30 days
from the entry thereof; or
(j) Any of the Security Documents shall cease, for any
reason, to be in full force and effect, or any Loan Party or any
Affiliate of any Loan Party shall so assert, or any Lien created by
any of the Security Documents shall cease to be enforceable and of the
same effect and priority purported to be created thereby; or
(k) The guarantee contained in Section 2 of the Guarantee
and Collateral Agreement shall cease, for any reason, to be in full
force and effect or any Loan Party or any Affiliate of any Loan Party
shall so assert; or
(l) The loss, suspension, revocation or material adverse
modification of any FCC main station license of any of the Stations;
or
(m) Xxxx X. Xxxxxxxx, Xx. shall cease to have the power,
directly or indirectly, to vote or direct the voting of securities
having a majority of the ordinary voting power for the election of
directors of the general partner of the Borrower; or
(n) An "Event of Default" as defined under the Asset
Purchase Agreement shall occur and be continuing;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitment shall immediately terminate and the Loan (with
accrued interest thereon) and all other amounts owing under this Agreement and
the other Loan Documents shall immediately become due and payable,
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and (B) if such event is any other Event of Default, the Lender may, by notice
to the Borrower, declare the Loan (with accrued interest thereon) and all other
amounts owing under this Agreement and the other Loan Documents to be due and
payable forthwith, whereupon the same shall immediately become due and payable.
SECTION 8. THE LENDER
8.1 Delegation of Duties. The Lender may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Lender shall not be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
8.2 Reliance by Lender. The Lender shall be entitled to rely, and
shall be fully protected in relying, upon any instrument, writing, resolution,
notice, consent, certificate, affidavit, letter,telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to
be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Borrower), independent accountants and other
experts selected by the Lender.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement, any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 9.1. The
Lender and each Loan Party to the relevant Loan Documents may, from time to
time, (a) enter into written amendments, supplements or modifications hereto
and to the other Loan Documents for the purpose of adding any provisions to
this Agreement or the other Loan Documents or changing in any manner the rights
of the Lender or of the Loan Parties hereunder or thereunder or (b) waive, on
such terms and conditions as the Lender may specify in such instrument, any of
the requirements of this Agreement or the other Loan Documents or any Default
or Event of Default and its consequences. Any such waiver and any such
amendment, supplement or modification shall be binding upon the Loan Parties,
the Lender and all future holders of the Loan. In the case of any waiver, the
Loan Parties and the Lender shall be restored to their former position and
rights hereunder and under the other Loan Documents, and any Default or Event
of Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
9.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice,
when received, addressed as follows in the case of the Borrower and the Lender,
and as set forth in an administrative questionnaire delivered to the Lender, or
to such other address as may be hereafter notified by the respective parties
hereto:
The Borrower: EMERALD CITY RADIO PARTNERS, L.P.
0000 Xxxxxxx Xxxxxx X.X.
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Suite 800
Washington, D.C. 20005
Attention: Xx. Xxxx X. Xxxxxxxx, Xx.
Telecopy: (000) 000-0000
The Lender: COMMODORE MEDIA, INC.
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxx, Xx.
Telecopy:
with a copy to:
Capstar Broadcasting Partners, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxx X. Xxxxx
Telecopy: (000) 000-0000
provided that any notice, request or demand to or upon the Lender shall not be
effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Lender, any right, remedy, power or
privilege hereunder or under the other Loan Documents shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of
the Loans hereunder.
9.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Lender for all its costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement, the other
Loan Documents and any such other documents, including, without limitation, the
fees and disbursements of counsel (including the allocated fees and expenses of
in-house counsel) to the Lender, (b) to pay, indemnify, and hold the Lender
harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and (c)
to pay, indemnify, and hold the Lender's respective officers, directors,
employees, affiliates, agents and controlling persons (each, an "indemnitee")
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect
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to the execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, any of the foregoing relating to the use of proceeds of the
Loans or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower any of its
Subsidiaries or any of the Properties (all the foregoing in this clause (c),
collectively, the "indemnified liabilities"), provided, that the Borrower shall
have no obligation hereunder to any indemnitee with respect to indemnified
liabilities to the extent such indemnified liabilities are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of such indemnitee. The
agreements in this Section 9.5 shall survive repayment of the Loans and all
other amounts payable hereunder.
9.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the
benefit of the Borrower, the Lender, all future holders of the Loan
and their respective successors and assigns, except that the Borrower
may not assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of the Lender.
(b) The Lender may, without the consent of the Borrower, in
accordance with applicable law, at any time sell to one or more banks,
financial institutions or other entities (each, a "Participant")
participating interests in the Loan or any other interest of the
Lender hereunder and under the other Loan Documents. In the event of
any such sale by the Lender of a participating interest to a
Participant, the Lender's obligations under this Agreement to the
other parties to this Agreement shall remain unchanged, the Lender
shall remain solely responsible for the performance thereof, the
Lender shall remain the holder of the Loan for all purposes under this
Agreement and the other Loan Documents, and the Borrower shall
continue to deal solely and directly with the Lender in connection
with the Lender's rights and obligations under this Agreement and the
other Loan Documents. In no event shall any Participant under any
such participation have any right to approve any amendment or waiver
of any provision of any Loan Document, or any consent to any departure
by any Loan Party therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the
Loan or any fees payable hereunder, or postpone the date of the final
maturity of the Loan, in each case to the extent subject to such
participation. The Borrower agrees that if amounts outstanding under
this Agreement and the Loan are due or unpaid, or shall have been
declared or shall have become due and payable upon the occurrence of
an Event of Default, each Participant shall, to the maximum extent
permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its participating
interest were owing directly to it as the Lender under this Agreement,
provided that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Lender
the proceeds thereof as provided in Section 9.7(a) as fully as if it
were the Lender hereunder. The Borrower also agrees that each
Participant shall be entitled to the benefits of Sections 2.9, 2.10
and 2.11 with respect to its participation in the Loan outstanding
from time to time as if it was the Lender; provided that, in the case
of Section 2.10, such Participant shall have complied with the
requirements of said Section and provided,
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further, that no Participant shall be entitled to receive any greater
amount pursuant to any such Section than the transferor Lender would
have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such
Participant had no such transfer occurred.
(c) The Lender may, in accordance with applicable law, at
any time and from time to time assign to any affiliate of the Lender
or, with the consent of the Borrower (which, in each case, shall not
be unreasonably withheld or delayed), to an additional bank, financial
institution or other entity (an "Assignee") all or any part of its
rights and obligations under this Agreement. Notwithstanding any
provision of this Section 9.6, the consent of the Borrower shall not
be required, and, unless requested by the Assignee or the Lender, a
new Note(s) shall not be required to be executed and delivered by the
Borrower, for any assignment which occurs at any time when any of the
events described in Section 7(f) shall have occurred and be
continuing.
(d) (i) The Loan shall be evidenced by a Note issued by
the Borrower, substantially in the form of Exhibit F, payable to the
order of the Lender and its registered assigns. The Lender is hereby
authorized to record, on the schedule annexed to and constituting a
part of the Note, information regarding the Loan, and any such
recordation shall constitute prima facie evidence of the accuracy of
the information so recorded, provided that the failure to make any
such recordation or any error in such recordation shall not affect the
Borrower's obligations hereunder or under the Note. On or prior to
the effective date of any assignment by the Lender hereunder, the
Borrower, at its own expense, shall execute and deliver to the Lender,
in exchange for the relevant Note, new Notes to the order of the
Assignee and, if applicable, the Lender. Such new Notes shall be
dated the Closing Date and shall otherwise be in the form of the Note
replaced thereby.
(e) The Borrower authorizes the Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective
Transferee any and all financial information concerning the Loan
Parties and their respective affiliates which has been delivered to
the Lender by or on behalf of any Loan Party pursuant to this
Agreement or any other Loan Document or which has been delivered to
the Lender by or on behalf any Loan Party in connection with the
Lender's credit evaluation of the Loan Parties and their respective
affiliates.
9.7 Setoff. In addition to any rights and remedies of the Lender
provided by law, the Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Lender or any affiliate thereof to
or for the credit or the account of the Borrower. The Lender agrees promptly
to notify the Borrower after any such setoff and application made, provided
that the failure to give such notice shall not affect the validity of such
setoff and application.
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9.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
9.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Lender with respect to the subject
matter hereof, and there are no promises, undertakings, representations or
warranties by the Lender relative to subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.12 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action
or proceeding relating to this Agreement and the other Loan Documents
to which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction
of the Courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and appellate
courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower, as the case may be at its address set forth
in Section 11.2 or at such other address of which the Lender shall
have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law,
any right it may have to claim or recover in any legal action or
proceeding referred to in this Section 9.12 any special, exemplary,
punitive or consequential damages.
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9.13 Acknowledgments. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) the Lender has no fiduciary relationship with or duty
to the Borrower arising out of or in connection with this Agreement or
any of the other Loan Documents, and the relationship between the
Lender and the Borrower, in connection herewith or therewith is solely
that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Borrower and the Lender.
9.14 WAIVERS OF JURY TRIAL. THE BORROWER AND THE LENDER HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
9.15 Confidentiality. The Lender agrees to keep confidential all
non-public information provided to it by any Loan Party pursuant to this
Agreement that is designated by such Loan Party as confidential; provided that
nothing herein shall prevent the Lender from disclosing any such information
(a) to any Transferee or prospective Transferee which agrees to comply with the
provisions of this Section 9.15, (b) to the employees, directors, agents,
attorneys, accountants and other professional advisors of the Lender or its
affiliates, (c) upon the request or demand of any Governmental Authority having
jurisdiction over the Lender, (d) in response to any order of any court or
other Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (e) if requested or required to do so in connection with
any litigation or similar proceeding, (f) which has been publicly disclosed
other than in breach of this Section 9.15, or (g) in connection with the
exercise of any remedy hereunder or under any other Loan Document.
9.16 FCC Approvals.
(a) The Borrower agrees to take any action which the Lender
may reasonably request in order to obtain and enjoy the full rights
and benefits granted to the Lender hereby, including specifically, at
the Borrower's own cost and expense, the use of reasonable efforts to
assist in obtaining approval of the FCC which is then required by law
for any action or transaction contemplated hereby. Specifically, and
without limiting the generality of the foregoing, the Borrower agrees,
upon written request of the Lender following and during the
continuance of an Event of Default and termination of the Asset
Purchase Agreement, to prepare, sign and file with the FCC the
assignor's or transferor's portion of any application or applications
for consent to the assignment of license necessary or appropriate
under the Communications Act, for approval of any sale, assignment or
transfer to the Lender or any other Person of any or all Collateral
(including without limitation any Station Licenses of the Borrower, to
the extent such licenses may constitute Collateral under applicable
law). The Borrower agrees that if it fails or refuses promptly to
prepare, sign or file any such documents following such
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request rightfully made, such documents may be prepared, signed and
filed on behalf of the Borrower pursuant to one or more court orders.
The Borrower agrees and acknowledges that, following and during the
continuance of an Event of Default and termination of the Asset
Purchase Agreement, any such assignment of the Station Licenses may be
made, among other things, to a receiver, trustee, or similar official
or to any purchaser of all or part of the other Collateral pursuant to
any court order, public or private sale, judicial sale, foreclosure or
the exercise of any other remedies available to the Lender hereunder
or under applicable law.
(b) The Borrower acknowledges that FCC authorization of the
actions contemplated by this Section 9.16 is integral to the Lender's
realization of the value of the Collateral, that is Station Licenses
are unique assets, that there is no adequate remedy at law for failure
by the Borrower to comply with the provisions of this Section 9.16 and
that such failure would not be adequately compensable in monetary
damages; therefore, the Borrower agrees that, in addition to all other
remedies available at law or in equity, the Lender shall be entitled
to obtain decree(s) of the specific performance entitling it to
temporary restraining order(s), preliminary injunction(s), or
permanent injunction(s) to specifically enforce and require specific
performance of the provisions of this Section 9.16. The Borrower
agrees that notice shall be adequate for the entry of a decree of
specific performance in respect of any such matter (i) in the case of
a temporary restraining order, upon twenty-four (24) hours' prior
notice of the hearing thereof and (ii) in the case of any other
proceeding, upon five (5) days' prior notice of the hearing thereof,
and hereby waives all requirements and demands that the Lender give
any greater notice of such hearings and further waives all
requirements and demands that the Lender post a bond or other surety
arrangement in connection with the issuance of such decree.
(c) The parties acknowledge their intent that, upon
acceleration or maturity of the obligations secured hereby, the Lender
shall receive, to the fullest extent permitted by applicable law and
governmental policy (including, without limitation, the Communications
Act), all rights necessary or desirable to obtain, use, sell or assign
the Station Licenses of the Borrower, the Stations and the other
Collateral, and to exercise all remedies available to them hereunder
and under applicable law. The parties further acknowledge and agree
that if changes in law or governmental policy occur subsequent to the
date hereof that affect in any manner the Lender's rights to access,
use, assign or sell such Station License, Stations or other
Collateral, or the procedures necessary to enable such access, use,
assignment or sale, the Lender and the Borrower shall amend this
Agreement in such manner as the Lender shall reasonably request based
upon advice of the Lender's counsel (such request to be accompanied by
reasonable evidence of such change in law or governmental policy which
need not be in writing), in order to provide the Lender such rights to
the greatest extent possible consistent with then applicable law and
governmental policy.
9.17 ENTIRE AGREEMENT. THE NOTE, THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE LENDER AND
THE OTHER RESPECTIVE PARTIES HERETO AND THERETO AND SUPERSEDE ALL PRIOR
AGREEMENTS AND UNDERSTANDINGS BETWEEN SUCH PARTIES RELATING TO THE SUBJECT
MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
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CONTEMPORANEOUS AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
9.18 Effectiveness. This Agreement shall not be effective until
delivered to the Lender in the State of New York and accepted by the Lender in
such State, and executed by the Lender in such State.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
EMERALD CITY RADIO PARTNERS, L.P.
By: Cyclone Communications Corporation, its
General Partner
By: /s/ XXXX X. XXXXXXXX, XX.
----------------------------------------------
Name: Xxxx X. Xxxxxxxx, Xx.
Title: President
COMMODORE MEDIA, INC.,
as Lender
By: /s/ XXXXX X. XXXX, XX.
----------------------------------------------
Name: Xxxxx X. Xxxx, Xx.
Title: President
