1
EXHIBIT 10.1
================================================================================
CREDIT AGREEMENT
among
AMFM HOLDINGS INC. (f/k/a CHANCELLOR MEZZANINE HOLDINGS CORPORATION),
CAPSTAR BROADCASTING PARTNERS, INC.,
AMFM OPERATING INC. (f/k/a CAPSTAR COMMUNICATIONS, INC.),
VARIOUS LENDERS,
DEUTSCHE BANK SECURITIES INC.
and
CHASE SECURITIES INC.,
AS CO-LEAD ARRANGERS,
BANK OF AMERICA, N.A.
and
TORONTO DOMINION (TEXAS), INC.,
AS DOCUMENTATION AGENTS,
THE CHASE MANHATTAN BANK,
AS SYNDICATION AGENT
and
BANKERS TRUST COMPANY,
AS ADMINISTRATIVE AGENT
----------------------------------
Dated as of November 19, 1999
----------------------------------
================================================================================
2
TABLE OF CONTENTS
Page
----
SECTION 1. Amount and Terms of Credit.............................................................................1
1.01 Commitment.........................................................................................1
1.02 Minimum Amount of Each Borrowing...................................................................2
1.03 Notice of Borrowing................................................................................2
1.04 Disbursement of Funds..............................................................................3
1.05 Notes..............................................................................................3
1.06 Conversions........................................................................................4
1.07 Pro Rata Borrowings................................................................................5
1.08 Interest...........................................................................................5
1.09 Interest Periods...................................................................................6
1.10 Increased Costs, Illegality, etc...................................................................7
1.11 Compensation.......................................................................................9
1.12 Change of Lending Office...........................................................................9
1.13 Replacement of Lenders.............................................................................9
1.14 Additional Term Loan Commitments..................................................................11
SECTION 2. Letters of Credit....................................................................................12
2.01 Letters of Credit.................................................................................12
2.02 Letter of Credit Requests; Notices of Issuance....................................................13
2.03 Letter of Credit Participations...................................................................14
2.04 Agreement to Repay Letter of Credit Drawings......................................................16
2.05 Increased Costs...................................................................................17
SECTION 3. Commitment Commission; Fees; Reductions of Commitment................................................17
3.01 Fees..............................................................................................17
3.02 Voluntary Termination or Reduction of Total Unutilized Loan Commitments...........................19
3.03 Mandatory Reduction of Commitments................................................................20
SECTION 4. Prepayments; Payments; Taxes.........................................................................21
4.01 Voluntary Prepayments.............................................................................21
4.02 Mandatory Repayments and Commitment Reductions....................................................22
4.03 Method and Place of Payment.......................................................................25
4.04 Net Payments......................................................................................25
SECTION 5A. Conditions Precedent to Initial Credit Events.......................................................27
5A.01 Execution of Agreement; Notes....................................................................27
5A.02 Opinion of Counsel...............................................................................27
5A.03 Corporate Documents; Proceedings; etc............................................................27
(ii)
3
5A.04 Shareholders' Agreements; Management Agreements; Employment Agreements; Tax
Sharing Agreements.............................................................................28
5A.05 Senior Notes Tender Offer/Consent Solicitation...................................................28
5A.06 Consummation of the Mergers......................................................................29
5A.07 Refinancings.....................................................................................29
5A.08 Subsidiary Guaranty..............................................................................30
5A.09 Pledge Agreement.................................................................................30
5A.10 Adverse Change, etc..............................................................................30
5A.11 Projections......................................................................................31
5A.12 Payment of Fees..................................................................................31
SECTION 5B. Conditions Precedent to the Additional Term Loans...................................................31
SECTION 6. Conditions Precedent to All Credit Events............................................................32
6.01 No Default; Representations and Warranties........................................................32
6.02 Notice of Borrowing; Letter of Credit Request.....................................................32
SECTION 7. Representations, Warranties and Agreements...........................................................32
7.01 Corporate or Partnership Status...................................................................33
7.02 Corporate or Partnership Power and Authority......................................................33
7.03 No Violation......................................................................................33
7.04 Governmental Approvals............................................................................34
7.05 Financial Statements; Financial Condition; Undisclosed Liabilities;
Projections; etc...............................................................................34
7.06 Litigation........................................................................................35
7.07 True and Complete Disclosure......................................................................35
7.08 Use of Proceeds; Margin Regulations...............................................................36
7.09 Tax Returns and Payments..........................................................................36
7.10 Compliance with ERISA.............................................................................37
7.11 The Pledge Agreement..............................................................................37
7.12 Properties........................................................................................37
7.13 Capitalization....................................................................................38
7.14 Subsidiaries......................................................................................38
7.15 Compliance with Statutes, etc.....................................................................38
7.16 Environmental Matters.............................................................................39
7.17 Investment Company Act............................................................................39
7.18 Public Utility Holding Company Act................................................................39
7.19 Labor Relations...................................................................................40
7.20 Patents, Licenses, Franchises and Formulas........................................................40
7.21 Special Purpose Corporation.......................................................................40
7.22 Business of Holdings..............................................................................40
7.23 FCC Authorizations................................................................................40
7.24 Subordinated Indebtedness.........................................................................41
7.25 Transaction.......................................................................................41
(iii)
4
7.26 Indebtedness......................................................................................42
7.27 Year 2000 Representation..........................................................................42
SECTION 8. Affirmative Covenants................................................................................42
8.01 Information Covenants.............................................................................42
(a) Quarterly Financial Statements............................................................42
(b) Annual Financial Statements...............................................................43
(c) Management Letters........................................................................43
(d) Budgets...................................................................................43
(e) Officer's Certificates....................................................................43
(f) Notice of Default or Litigation...........................................................44
(g) Other Reports and Filings.................................................................44
(h) Annual Meetings with Lenders..............................................................44
(i) Environmental Matters.....................................................................44
(j) FCC Authorizations........................................................................45
(k) Other Information.........................................................................45
8.02 Books, Records and Inspections....................................................................45
8.03 Maintenance of Property; Insurance................................................................46
8.04 Corporate Franchises..............................................................................46
8.05 Compliance with Statutes, etc.....................................................................46
8.06 Compliance with Environmental Laws................................................................46
8.07 ERISA.............................................................................................47
8.08 End of Fiscal Years; Fiscal Quarters..............................................................47
8.09 Performance of Obligations........................................................................48
8.10 Payment of Taxes..................................................................................48
8.11 Maintenance of Separateness.......................................................................48
8.12 Additional Pledged Security; Further Assurances...................................................48
8.13 Excluded Subsidiaries.............................................................................49
SECTION 9. Negative Covenants...................................................................................49
9.01 Liens.............................................................................................49
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc............................................52
9.03 Dividends.........................................................................................55
9.04 Indebtedness......................................................................................57
9.05 Advances, Investments and Loans...................................................................58
9.06 Transactions with Affiliates......................................................................60
9.07 Capital Expenditures..............................................................................61
9.08 Maximum Leverage Ratio............................................................................62
9.09 Interest Coverage Ratio...........................................................................63
9.10 Fixed Charge Coverage Ratio.......................................................................63
9.11 Limitation on Certain Restrictions on Subsidiaries................................................64
9.12 Limitation on Issuance of Capital Stock...........................................................64
9.13 Business..........................................................................................64
9.14 Limitation on Creation of Subsidiaries............................................................65
(iv)
5
SECTION 10. Events of Default...................................................................................65
10.01 Payments.........................................................................................65
10.02 Representations, etc.............................................................................65
10.03 Covenants........................................................................................65
10.04 Default Under Other Agreements...................................................................65
10.05 Bankruptcy, etc..................................................................................66
10.06 ERISA............................................................................................66
10.07 Pledge Agreement.................................................................................66
10.08 Guaranty.........................................................................................67
10.09 Judgments........................................................................................67
10.10 Change of Ownership..............................................................................67
10.11 Non-Controlled Entity Credit Facility............................................................67
SECTION 11. Definitions and Accounting Terms....................................................................68
11.01 Defined Terms....................................................................................68
SECTION 12. The Administrative Agent............................................................................97
12.01 Appointment......................................................................................97
12.02 Nature of Duties.................................................................................97
12.03 Lack of Reliance on the Agent....................................................................97
12.04 Certain Rights of the Administrative Agent.......................................................98
12.05 Reliance.........................................................................................98
12.06 Indemnification..................................................................................98
12.07 The Administrative Agent in Its Individual Capacity..............................................98
12.08 Holders..........................................................................................99
12.09 Resignation by the Administrative Agent..........................................................99
SECTION 13. Miscellaneous.......................................................................................99
13.01 Payment of Expenses, etc.........................................................................99
13.02 Right of Setoff; Collateral Matters.............................................................100
13.03 Notices.........................................................................................101
13.04 Benefit of Agreement............................................................................101
13.05 No Waiver; Remedies Cumulative..................................................................103
13.06 Payments Pro Rata...............................................................................103
13.07 Calculations; Computations......................................................................104
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL..........................104
13.09 Counterparts....................................................................................105
13.10 Effectiveness...................................................................................105
13.11 Headings Descriptive............................................................................106
13.12 Amendment or Waiver; etc........................................................................106
13.13 Survival........................................................................................107
13.14 Domicile of Loans...............................................................................107
(v)
6
13.15 Limitation on Additional Amounts, etc...........................................................108
13.16 Confidentiality.................................................................................108
13.17 Register........................................................................................109
13.18 Designated Senior Indebtedness..................................................................109
SECTION 14. Parents Guaranty...................................................................................109
14.01 The Guaranty....................................................................................109
14.02 Bankruptcy......................................................................................110
14.03 Nature of Liability.............................................................................110
14.04 Independent Obligation..........................................................................110
14.05 Authorization...................................................................................111
14.06 Reliance........................................................................................112
14.07 Subordination...................................................................................112
14.08 Waiver..........................................................................................112
14.09 Nature of Liability.............................................................................113
(vi)
7
SCHEDULE I Commitments
SCHEDULE II Lender Addresses
SCHEDULE III Existing Letters of Credit
SCHEDULE IV Existing Indebtedness
SCHEDULE V Indebtedness to be Refinanced
SCHEDULE VI Subsidiaries
SCHEDULE VII FCC Authorizations
SCHEDULE VIII Existing Liens
SCHEDULE IX Existing Investments
EXHIBIT A Form of Notice of Borrowing
EXHIBIT B-1 Form of Term Note
EXHIBIT B-2 Form of Revolving Note
EXHIBIT C Form of Additional Term Loan Assumption Agreement
EXHIBIT D Form of Letter of Credit Request
EXHIBIT E Form of Section 4.04(b)(ii) Certificate
EXHIBIT F Form of Opinion of Xxxxxx & Xxxxxx, LLP, Special
Counsel to the Credit Parties
EXHIBIT G Form of Officers' Certificate
EXHIBIT H Form of Subsidiary Guaranty
EXHIBIT I Form of Pledge Agreement
EXHIBIT J Form of Assignment and Assumption Agreement
EXHIBIT K Form of Parent Note
(vii)
8
CREDIT AGREEMENT, dated as of November 19, 1999, among AMFM
HOLDINGS INC. (f/k/a CHANCELLOR MEZZANINE HOLDINGS CORPORATION), a Delaware
corporation ("Parent"), CAPSTAR BROADCASTING PARTNERS, INC., a Delaware
corporation ("Holdings"), AMFM OPERATING INC. (f/k/a CAPSTAR COMMUNICATIONS,
INC.), a Delaware corporation (the "Borrower"), the Lenders party hereto from
time to time, DEUTSCHE BANK SECURITIES INC. and CHASE SECURITIES INC., as
Co-Lead Arrangers, BANK OF AMERICA, N.A. and TORONTO DOMINION (TEXAS), INC., as
Documentation Agents, THE CHASE MANHATTAN BANK, as Syndication Agent, and
BANKERS TRUST COMPANY, as Administrative Agent (all capitalized terms used
herein and defined in Section 11 are used herein as therein defined).
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions herein
set forth, the Lenders are willing to make available to the Borrower the
respective credit facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 Commitment. (a) (i) Subject to and upon the terms and
conditions set forth herein, each Lender with an Initial Term Loan Commitment
severally agrees to make a term loan or term loans (each an "Initial Term Loan"
and, collectively, the "Initial Term Loans") to the Borrower, which Initial Term
Loans shall (i) be incurred by the Borrower pursuant to a single drawing on the
Initial Borrowing Date and (ii) not exceed in aggregate principal amount for any
Lender at the time of incurrence thereof the Initial Term Loan Commitment of
such Lender as in effect on such date (before giving effect to any reductions
thereto on such date pursuant to Section 3.03(c)).
(ii) Subject to Section 1.14 and the other terms and
conditions set forth herein, each Lender which may have an Additional Term Loan
Commitment severally agrees to make a term loan or term loans (each an
"Additional Term Loan" and, collectively, the "Additional Term Loans" and,
together with the Initial Term Loans, the "Term Loans") to the Borrower, which
Additional Term Loans shall (i) at the option of such Lenders and the Borrower,
be provided to the Borrower pursuant to the existing Tranche of Term Loans or
one or more Tranches of Additional Term Loans, (ii) be incurred by the Borrower
pursuant to one or more drawings after the Initial Borrowing Date and prior to
the Additional Loans Availability Termination Date and (iii) not exceed in
initial aggregate principal amount for any Lender at the time of incurrence
thereof the Additional Term Loan Commitment, if any, of such Lender as in effect
on such date (before giving effect to any reductions thereto on such date
pursuant to Section 3.03(d)(i)).
(iii) All Term Loans shall, at the option of the Borrower, be
incurred and maintained as, and/or converted into, Base Rate Loans or Eurodollar
Loans; provided that all Term
-1-
9
Loans made as part of the same Borrowing shall, unless otherwise specifically
provided in Section 1.10(b), consist of Term Loans of the same Type. Once
repaid, Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth
herein, each Lender with a Revolving Loan Commitment severally agrees, at any
time and from time to time on and after the Initial Borrowing Date and prior to
the Maturity Date, to make a revolving loan or revolving loans (each a
"Revolving Loan" and, collectively, the "Revolving Loans") to the Borrower,
which Revolving Loans (i) shall, at the option of the Borrower, be incurred and
maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans;
provided that except as otherwise specifically provided in Section 1.10(b), all
Revolving Loans comprising the same Borrowing shall at all times be of the same
Type, (ii) may be repaid and reborrowed in accordance with the provisions
hereof, (iii) shall not exceed for any Lender at any time outstanding that
aggregate principal amount which, when added to (I) the aggregate principal
amount of all other then outstanding Revolving Loans made by such Lender and
(II) the product of (x) such Lender's Adjusted RL Percentage and (y) the
aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid
Drawings which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) at such time,
equals the Revolving Loan Commitment of such Lender at such time and (iv) shall
not exceed for all Lenders at any time outstanding that aggregate principal
amount which, when added to the amount of all Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of Revolving
Loans) at such time, equals the Total Revolving Loan Commitment at such time.
1.02 Minimum Amount of Each Borrowing. The aggregate principal
amount of each Borrowing of Loans under a respective Tranche shall not be less
than the Minimum Borrowing Amount for such Tranche. More than one Borrowing may
occur on the same date, but at no time shall there be outstanding more than 15
Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to
incur Loans hereunder, it shall give the Administrative Agent at its Notice
Office at least one Business Day's prior written notice (or telephonic notice
promptly confirmed in writing) of each Base Rate Loan and at least three
Business Days' prior written notice (or telephonic notice promptly confirmed in
writing) of each Eurodollar Loan to be made hereunder, provided that any such
notice shall be deemed to have been given on a certain day only if given before
12:00 Noon (New York time) on such day. Each such written notice or written
confirmation of telephonic notice (each a "Notice of Borrowing"), except as
otherwise expressly provided in Section 1.10, shall be irrevocable and shall be
given by the Borrower in the form of Exhibit A, appropriately completed to
specify the aggregate principal amount of the Loans to be incurred pursuant to
such Borrowing, the date of such Borrowing (which shall be a Business Day),
whether the Loans being incurred pursuant to such Borrowing shall constitute
Term Loans or Revolving Loans, and whether the Loans being incurred pursuant to
such Borrowing are to be initially maintained as Base Rate Loans or Eurodollar
Loans and, if Eurodollar Loans, the initial Interest Period to be applicable
thereto. The Administrative Agent shall promptly give each Lender which is
required to make Loans of the Tranche specified in the respective Notice of
Borrowing, notice of such proposed Borrowing,
-2-
10
of such Lender's proportionate share thereof and of the other matters required
by the immediately preceding sentence to be specified in the Notice of
Borrowing.
(b) Without in any way limiting the obligation of the Borrower
to confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent or the Issuing Lender (in the case of the issuance of
Letters of Credit), as the case may be, may act without liability upon the basis
of such telephonic notice, believed by the Administrative Agent or the Issuing
Lender, as the case may be, in good faith to be from an Authorized Officer of
the Borrower prior to receipt of written confirmation. In each such case, the
Borrower hereby waives the right to dispute the Administrative Agent's or the
Issuing Lender's record of the terms of such telephonic notice.
1.04 Disbursement of Funds. Except as otherwise specifically
provided in the second succeeding sentence, no later than 12:00 Noon (New York
time) on the date specified in each Notice of Borrowing, each Lender with a
Commitment of the respective Tranche will make available its pro rata portion of
each such Borrowing requested to be made on such date. All such amounts shall be
made available in Dollars and in immediately available funds at the Payment
Office of the Administrative Agent, and the Administrative Agent will make
available to the Borrower at the Payment Office the aggregate of the amounts so
made available by the Lenders (prior to 1:00 P.M. on such day, to the extent of
funds actually received by the Administrative Agent prior to 12:00 Noon on such
day). Unless the Administrative Agent shall have been notified by any Lender
prior to the date of Borrowing that such Lender does not intend to make
available to the Administrative Agent such Lender's portion of any Borrowing to
be made on such date, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent on such date of Borrowing
and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. If such corresponding amount
is not in fact made available to the Administrative Agent by such Lender, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent shall promptly notify the Borrower and the Borrower shall immediately pay
such corresponding amount to the Administrative Agent. The Administrative Agent
shall also be entitled to recover on demand from such Lender or the Borrower, as
the case may be, interest on such corresponding amount in respect of each day
from the date such corresponding amount was made available by the Administrative
Agent to the Borrower until the date such corresponding amount is recovered by
the Administrative Agent, at a rate per annum equal to (i) if recovered from
such Lender, at the Federal Funds Rate and (ii) if recovered from the Borrower,
the rate of interest applicable to the respective Borrowing, as determined
pursuant to Section 1.08. Nothing in this Section 1.04 shall be deemed to
relieve any Lender from its obligation to make Loans hereunder or to prejudice
any rights which the Borrower may have against any Lender as a result of any
failure by such Lender to make Loans hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the principal
of, and interest on, the Loans made by each Lender, if requested by such Lender,
shall be evidenced (i) if Term Loans, by a promissory note duly executed and
delivered by the Borrower substantially in the
-3-
11
form of Exhibit B-1, with blanks appropriately completed in conformity herewith
(each a "Term Note" and, collectively, the "Term Notes") and (ii) if Revolving
Loans, by a promissory note duly executed and delivered by the Borrower
substantially in the form of Exhibit B-2, with blanks appropriately completed in
conformity herewith (each a "Revolving Note" and collectively, the "Revolving
Notes").
(b) The Term Note issued to each Lender that has a Term Loan
Commitment shall (i) be executed by the Borrower, (ii) be payable to the order
of such Lender or its registered assigns and be dated the Initial Borrowing Date
(or, if issued thereafter, the date of the issuance thereof), (iii) be in a
stated principal amount equal to the Term Loan Commitment of such Lender and be
payable in the outstanding principal amount of Term Loans evidenced thereby,
(iv) mature on the Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayment as provided in Section 4.01, and mandatory repayment as
provided in Section 4.02 and (vii) be entitled to the benefits of this Agreement
and the other Credit Documents.
(c) The Revolving Note issued to each Lender that has a
Revolving Loan Commitment shall (i) be executed by the Borrower, (ii) be payable
to the order of such Lender or its registered assigns and be dated the Initial
Borrowing Date (or, if issued thereafter, the date of the issuance thereof),
(iii) be in a stated principal amount equal to the Revolving Loan Commitment of
such Lender and be payable in the outstanding principal amount of the Revolving
Loans evidenced thereby, (iv) mature on the Maturity Date, (v) bear interest as
provided in the appropriate clause of Section 1.08 in respect of the Base Rate
Loans and Eurodollar Loans, as the case may be, evidenced thereby, (vi) be
subject to voluntary prepayment as provided in Section 4.01, and mandatory
repayment as provided in Section 4.02 and (vii) be entitled to the benefits of
this Agreement and the other Credit Documents.
(d) Each Lender will note on its internal records the amount
of each Loan made by it and each payment in respect thereof and will prior to
any transfer of any of its Notes endorse on the reverse side thereof or a
schedule attached thereto the outstanding principal amount of Loans evidenced
thereby. Failure to make any such notation or any error in any such notation or
endorsement shall not affect the Borrower's obligations in respect of such
Loans.
1.06 Conversions. The Borrower shall have the option to
convert, on any Business Day occurring after the Initial Borrowing Date, all or
a portion equal to at least the applicable Minimum Borrowing Amount of the
outstanding principal amount of the Loans owing pursuant to a single Tranche
into a Borrowing or Borrowings pursuant to such Tranche of another Type of Loan;
provided that (i) except as otherwise provided in Section 1.10(b), Eurodollar
Loans may be converted into Base Rate Loans only on the last day of an Interest
Period applicable to the Loans being converted and no partial conversion of
Eurodollar Loans shall reduce the outstanding principal amount of the Eurodollar
Loans made pursuant to such Borrowing to less than the Minimum Borrowing Amount
applicable thereto, (ii) Base Rate Loans may not be converted into Eurodollar
Loans if an Event of Default is in existence on the date of the conversion and
the Administrative Agent or the Required Lenders have determined that such
-4-
12
conversion at such time would be disadvantageous to the Lenders and (iii) no
conversion pursuant to this Section 1.06 shall result in a greater number of
Eurodollar Loans than is permitted under Section 1.02. Each such conversion
shall be effected by the Borrower by giving the Administrative Agent at its
Notice Office prior to 12:00 Noon (New York time) at least three Business Days'
prior notice (each a "Notice of Conversion") specifying the Loans to be so
converted, the Borrowing or Borrowings pursuant to which such Loans were made
and, if to be converted into Eurodollar Loans, the Interest Period to be
initially applicable thereto. The Administrative Agent shall give each Lender
prompt notice of any such proposed conversion affecting any of its Loans. Upon
any such conversion, the proceeds thereof will be deemed to be applied directly
on the day of such conversion to repay the outstanding principal amount of the
Loans being converted.
1.07 Pro Rata Borrowings. All Loans under this Agreement shall
be incurred from the Lenders pro rata on the basis of their Initial Term Loan
Commitments or Additional Term Loan Commitments (in the case of Additional Term
Loans), or Adjusted RL Percentages of the Total Loan Commitment, as the case may
be. It is understood that no Lender shall be responsible for any default by any
other Lender of its obligation to make Loans hereunder and that each Lender
shall be obligated to make the Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to make its Loans hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in
respect of the unpaid principal amount of each Base Rate Loan from the date the
proceeds thereof are made available to the Borrower until the earlier of (i) the
maturity (whether by acceleration, optional or mandatory, or otherwise) of such
Base Rate Loan and (ii) the conversion of such Base Rate Loan to a Eurodollar
Loan pursuant to Section 1.06, at a rate per annum which shall be equal to the
sum of the Applicable Margin plus the Base Rate in effect from time to time.
(b) The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Eurodollar Loan from the date the proceeds
thereof are made available to the Borrower until the earlier of (i) the maturity
(whether by acceleration, optional or mandatory, or otherwise) of such
Eurodollar Loan and (ii) the conversion of such Eurodollar Loan to a Base Rate
Loan pursuant to Section 1.06, 1.09 or 1.10, as applicable, at a rate per annum
which shall, during each Interest Period applicable thereto, be equal to the sum
of the Applicable Margin plus the Eurodollar Rate for such Interest Period.
(c) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount payable
hereunder shall, in each case, bear interest at a rate per annum equal to the
rate which is 2% per annum in excess of the rate then borne by such Loans, in
each case with such interest to be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable
(i) in respect of each Base Rate Loan, quarterly in arrears on each Quarterly
Payment Date, (ii) in respect of each Eurodollar Loan, on the last day of each
Interest Period applicable thereto and, in the case of an Interest Period in
excess of three months, on each date occurring at three month intervals after
the first day of such Interest Period and on any repayment or prepayment (on the
amount repaid
-5-
13
or prepaid) and (iii) in respect of each Loan, at maturity (whether by
acceleration or otherwise) and, after such maturity, on demand.
(e) Upon each Interest Determination Date, the Administrative
Agent shall determine the Eurodollar Rate for each Interest Period applicable to
Eurodollar Loans and shall promptly notify the Borrower and the Lenders thereof.
Each such determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto.
1.09 Interest Periods. At the time it gives any Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, any Eurodollar Loan (in the case of the initial Interest Period applicable
thereto) or on the third Business Day prior to the expiration of an Interest
Period applicable to such Eurodollar Loan (in the case of any subsequent
Interest Period), the Borrower shall have the right to elect, by giving the
Administrative Agent notice thereof, the interest period (each an "Interest
Period") applicable to such Eurodollar Loan, which Interest Period shall, at the
option of the Borrower, be a one, two, three, six or, if available to each of
the Lenders, nine or twelve month period, provided that:
(i) all Eurodollar Loans comprising a Borrowing shall at all
times have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan shall
commence on the date of Borrowing of such Eurodollar Loan (including
the date of any conversion thereto from a Loan of a different Type) and
each Interest Period occurring thereafter in respect of such Eurodollar
Loan shall commence on the day on which the next preceding Interest
Period applicable thereto expires;
(iii) if any Interest Period relating to a Eurodollar Loan begins
on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such Interest Period
shall end on the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided, however, that if any Interest
Period for a Eurodollar Loan would otherwise expire on a day which is
not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day;
(v) no Interest Period may be selected at any time when a
default under Sections 10.01 or 10.05 or an Event of Default is then in
existence and the Administrative Agent or the Required Lenders have
determined that such an election at such time would be disadvantageous
to the Lenders; and
(vi) no Interest Period in respect of any Borrowing of any
Tranche of Loans shall be selected which extends beyond the Maturity
Date.
-6-
14
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to such Eurodollar
Loans as provided above, the Borrower shall be deemed to have elected to convert
such Eurodollar Loans into Base Rate Loans effective as of the expiration date
of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that
any Lender shall have determined (which determination with respect to clause (i)
below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the Effective Date affecting the interbank
Eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in
the definition of Eurodollar Rate; or
(ii) at any time that such Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect
to any Eurodollar Loan because of (x) any change since the Effective
Date in any applicable law or governmental rule, regulation, order,
guideline or request (whether or not having the force of law) or in the
interpretation or administration thereof and including the introduction
of any new law or governmental rule, regulation, order, guideline or
request, such as, for example, but not limited to: (A) a change in the
basis of taxation of payment to any Lender of the principal of or
interest on such Eurodollar Loan or any other amounts payable hereunder
(except for changes in the rate of tax on, or determined by reference
to, the net income or profits of such Lender, or any franchise tax
based on the net income or profits of such Lender, in either case
pursuant to the laws of the United States of America or the
jurisdiction in which it is organized or in which its principal office
or applicable lending office is located or any subdivision thereof or
therein), but without duplication of any amounts payable in respect of
Taxes pursuant to Section 4.04(a), or (B) a change in official reserve
requirements, but, in all events, excluding reserves required under
Regulation D to the extent included in the computation of the
Eurodollar Rate and/or (y) other circumstances since the Effective Date
affecting such Lender or the interbank Eurodollar market or the
position of such Lender in such market; or
(iii) at any time that the making or continuance of any
Eurodollar Loan has been made (x) unlawful by any law or governmental
rule, regulation or order, (y) impossible by compliance by any Lender
in good faith with any governmental request (whether or not having
force of law) or (z) impracticable as a result of a contingency
occurring after the Effective Date which materially and adversely
affects the interbank Eurodollar market;
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrower and, except in the case of clause (i) above, to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Lenders).
-7-
15
Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer
be available until such time as the Administrative Agent notifies the Borrower
and the Lenders that the circumstances giving rise to such notice by the
Administrative Agent no longer exist, and any Notice of Borrowing or Notice of
Conversion given by the Borrower with respect to Eurodollar Loans which have not
yet been incurred (including by way of conversion) shall be deemed rescinded by
the Borrower, (y) in the case of clause (ii) above, the Borrower shall, subject
to the provisions of Section 13.15 (to the extent applicable) pay to such
Lender, upon written demand therefor, such additional amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise
as such Lender in its discretion shall determine) as shall be required to
compensate such Lender for such increased costs or reductions in amounts
received or receivable hereunder (a written notice as to the additional amounts
owed to such Lender, showing the basis for the calculation thereof and
certifying that it is generally charging such costs to other similarly situated
borrowers under similar credit facilities, submitted to the Borrower by such
Lender in good faith shall, absent manifest error, be final and conclusive and
binding on all the parties hereto) and (z) in the case of clause (iii) above,
the Borrower shall take one of the actions specified in Section 1.10(b) as
promptly as possible and, in any event, within the time period required by law.
Each of the Administrative Agent and each Lender agrees that if it gives notice
to the Borrower of any of the events described in clause (i) or (iii) above, it
shall promptly notify the Borrower and, in the case of any such Lender, the
Administrative Agent, if such event ceases to exist. If any such event described
in clause (iii) above ceases to exist as to a Lender, the obligations of such
Lender to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar
Loans on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected by the circumstances described in
Section 1.10(a)(iii) shall) either (x) if the affected Eurodollar Loan is then
being made initially or pursuant to a conversion, cancel the respective
Borrowing by giving the Administrative Agent telephonic notice (confirmed in
writing) on the same date that the Borrower was notified by the affected Lender
or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if
the affected Eurodollar Loan is then outstanding, upon at least three Business
Days' written notice to the Administrative Agent given immediately, or if
permitted by applicable law given at such later date permitted thereby, require
the affected Lender to convert such Eurodollar Loan into a Base Rate Loan,
provided that, if more than one Lender is affected at any time, then all
affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the Effective Date any Lender
determines that the introduction of or any change in any applicable law or
governmental rule, regulation, order, guideline, directive or request (whether
or not having the force of law) concerning capital adequacy, or any change in
interpretation or administration thereof by any governmental authority, central
bank or comparable agency, will have the effect of increasing the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender based on the existence of such Lender's Commitments
hereunder or its obligations hereunder, then the Borrower shall, subject to the
provisions of Section 13.15 (to the extent applicable), pay to such Lender, upon
its written demand therefor, such additional amounts as shall be required to
-8-
16
compensate such Lender or such other corporation for the increased cost to such
Lender or such other corporation or the reduction in the rate of return to such
Lender or such other corporation as a result of such increase of capital. In
determining such additional amounts, each Lender will act reasonably and in good
faith and will use averaging and attribution methods which are reasonable,
provided that such Lender's reasonable good faith determination (made in a
manner generally consistent with such Lender's standard practices) of
compensation owing under this Section 1.10(c) shall, absent manifest error, be
final and conclusive and binding on all the parties hereto. Each Lender, upon
determining that any additional amounts will be payable pursuant to this Section
1.10(c), will give prompt written notice thereof to the Borrower, which notice
shall show the basis for calculation of such additional amounts and certify that
it is generally charging such costs to other similarly situated borrowers under
similar credit facilities.
1.11 Compensation. The Borrower shall, subject to the
provisions of Section 13.15 (to the extent applicable), compensate each Lender,
upon its written request (which request shall set forth the basis for requesting
such compensation), for all reasonable losses, expenses and liabilities
(including, without limitation, any loss, expense or liability incurred by
reason of the liquidation or reemployment of deposits or other funds required by
such Lender to fund its Eurodollar Loans but excluding any loss of anticipated
profit) which such Lender may sustain: (i) if for any reason (other than a
default by such Lender or the Administrative Agent) a Borrowing of, or
conversion from or into, Eurodollar Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion (whether or not
withdrawn by the Borrower or deemed withdrawn pursuant to Section 1.10(a) or
(b)); (ii) if any repayment (including any repayment made pursuant to Section
4.01 or 4.02 or as a result of an acceleration of the Loans pursuant to Section
10) or conversion of any of its Eurodollar Loans occurs on a date which is not
the last day of an Interest Period with respect thereto; (iii) if any prepayment
of any of its Eurodollar Loans is not made on any date specified in a notice of
prepayment given by the Borrower; or (iv) as a consequence of (x) any other
default by the Borrower to repay its Loans when required by the terms of this
Agreement or any Note held by such Lender or (y) any election made pursuant to
Section 1.10(b).
1.12 Change of Lending Office. Each Lender agrees that upon
the occurrence of any event giving rise to the operation of Section 1.10(a)(ii)
or (iii), Section 1.10(c), Section 2.05 or Section 4.04 with respect to such
Lender, it will, if requested by the Borrower, use reasonable efforts (subject
to overall policy considerations of such Lender) to designate another lending
office for any Loans affected by such event, provided that such designation is
made on such terms that such Lender and its lending office suffer no economic,
legal or regulatory disadvantage, with the object of avoiding the consequence of
the event giving rise to the operation of such Section. Nothing in this Section
1.12 shall affect or postpone any of the obligations of the Borrower or the
right of any Lender provided in Sections 1.10, 2.05 and 4.04.
1.13 Replacement of Lenders. (x) If any Lender becomes a
Defaulting Lender or otherwise defaults in its obligations to make Loans or fund
Unpaid Drawings, (y) upon the occurrence of any event giving rise to the
operation of Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 2.05 or
Section 4.04 with respect to any Lender which results in such Lender charging to
the Borrower increased costs in excess of those being generally charged by the
other Lenders or (z)
-9-
17
in the case of certain refusals by a Lender (other than a Lender whose
commitments are terminated in accordance with Section 3.02(b) and/or whose Loans
are repaid in accordance with Section 4.01(b)) to consent to certain proposed
changes, waivers, discharges or terminations with respect to this Agreement
which have been approved by the Required Lenders as (and to the extent) provided
in Section 13.12(b), the Borrower shall have the right, if no Default or Event
of Default will exist immediately after giving effect to the respective
replacement, to either replace (1) such Lender (the "Replaced Lender") with one
or more other Eligible Transferee or Transferees reasonably acceptable to the
Administrative Agent, none of whom shall constitute a Defaulting Lender at the
time of such replacement (collectively, the "Replacement Lender") or (2) at the
option of the Borrower, to replace only (a) the Revolving Loan Commitment (and
outstandings pursuant thereto) of the Replaced Lender with an identical
Revolving Loan Commitment provided by the Replacement Lender or (b) the Term
Loan Commitment and/or outstanding Term Loans of the Replaced Lender in respect
of each Tranche with an identical Term Loan Commitment or Term Loans provided by
the Replacement Lender; provided that (i) at the time of any replacement
pursuant to this Section 1.13, the Replacement Lender shall enter into one or
more Assignment and Assumption Agreements pursuant to Section 13.04(b) (and with
all fees payable pursuant to said Section 13.04(b) to be paid by the Replacement
Lender) pursuant to which the Replacement Lender shall acquire the Commitment
and outstanding Loans (or, in the case of the replacement of only (a) the
Revolving Loan Commitment, the Revolving Loan Commitment and outstanding
Revolving Loans or (b) the Term Loan Commitment or outstanding Term Loans of one
or more Tranches, the Term Loan Commitment or the outstanding Term Loans of the
respective Tranche) of, and in each case (except for the replacement of only the
outstanding Term Loan Commitment or the outstanding Term Loans of one or more
Tranches of the respective Lender) participations in Letters of Credit by, the
Replaced Lender and, in connection therewith, shall pay to (x) the Replaced
Lender in respect thereof an amount equal to the sum of (without duplication)
(A) the principal of, and all accrued interest on, all outstanding Loans (or of
the Loans of the respective Tranche being replaced) of the Replaced Lender, (B)
except in the case of the replacement of only the Term Loan Commitment or the
outstanding Term Loans of one or more Tranches of a Replaced Lender, all Unpaid
Drawings that have been funded by (and not reimbursed to) such Replaced Lender,
together with all then unpaid interest with respect thereto at such time and (C)
an amount equal to all accrued, but theretofore unpaid, Fees owing to the
Replaced Lender (but only with respect to the relevant Tranche, in the case of
the replacement of less than all Tranches of Loans then held by the respective
Replaced Lender) pursuant to Section 3.01 and (y) except in the case of the
replacement of only the Term Loan Commitment or the outstanding Term Loans of
one or more Tranches of a Replaced Lender, the Issuing Lender an amount equal to
such Replaced Lender's Adjusted RL Percentage (for this purpose, determined as
if the adjustment described in clause (y) of the immediately succeeding sentence
had been made with respect to such Replaced Lender) of any Unpaid Drawing (which
at such time remains an Unpaid Drawing) to the extent such amount was not
theretofore funded by such Replaced Lender, and (ii) all obligations of the
Borrower owing to the Replaced Lender (other than those (a) specifically
described in clause (i) above in respect of which the assignment purchase price
has been, or is concurrently being, paid or (b) relating to any Tranche of Loans
and/or Commitments of the respective Replaced Lender which will remain
outstanding after giving effect to the respective replacement) shall be paid in
full to such Replaced Lender concurrently with such replacement. Upon the
execution of the
-10-
18
respective Assignment and Assumption Agreements, the payment of amounts referred
to in clauses (i) and (ii) above, the recordation of the assignment in the
Register by the Administrative Agent pursuant to Section 13.17 and, if so
requested by the Replacement Lender, delivery to the Replacement Lender of the
appropriate Note or Notes executed by the Borrower, (x) the Replacement Lender
shall become a Lender hereunder and, unless the respective Replaced Lender
continues to have outstanding Term Loans or a Revolving Commitment hereunder,
the Replaced Lender shall cease to constitute a Lender hereunder, except with
respect to indemnification provisions under this Agreement (including, without
limitation, Sections 1.10, 1.11, 2.05, 4.04, 12.06 and 13.01, as the same may be
limited by Section 13.15 (to the extent applicable)), which shall survive as to
such Replaced Lender and (y) in the case of a replacement of a Defaulting Lender
with a Non-Defaulting Lender, the Adjusted RL Percentages of the Lenders shall
be automatically adjusted at such time to give effect to such replacement (and
to give effect to the replacement of a Defaulting Lender with one or more
Non-Defaulting Lenders). Any replacement of a Lender pursuant to this Section
1.13 shall not be deemed to be a waiver of any rights which the Borrower, the
Administrative Agent or any other Lender shall have against the Replaced Lender.
1.14 Additional Term Loan Commitments. (a) At any time on and
after the Effective Date and prior to the Additional Loans Availability
Termination Date, with the prior written consent of the Administrative Agent,
the Borrower may request one or more Lenders or other financial institutions to
acquire or assume an Additional Term Loan Commitment and to make Additional Term
Loans to the Borrower as provided in Section 1.01(a)(ii) and in the sole
discretion of each such Lender or other financial institution, any such Lender
or other financial institution may agree to so commit; provided that (i) no
Default or Event of Default then exists or would result therefrom, (ii) the
increase in the Total Additional Term Loan Commitment pursuant to any such
request shall be in an aggregate amount of at least $100,000,000 and (iii) after
giving effect to each such increase, the Total Additional Term Loan Commitment
(determined without giving effect to any prior reductions thereto pursuant to
Section 3.03(d)) shall not exceed $500,000,000. The Borrower and each such
Lender or other financial institution (each an "Assuming Lender") which agrees
to commit to make Additional Term Loans shall execute and deliver to the
Administrative Agent an Additional Term Loan Assumption Agreement substantially
in the form of Exhibit C (with the increase in or, in the case of a new Assuming
Lender, assumption of, such Lender's Additional Term Loan Commitment to be
effective upon delivery of such Additional Term Loan Assumption Agreement to the
Administrative Agent). The Administrative Agent shall promptly notify each
Lender as to the occurrence of each Additional Term Loan Assumption Date. On
each Additional Term Loan Assumption Date (x) Schedule I shall be deemed
modified to reflect the Additional Term Loan Commitments of such Lenders and (y)
the Borrower shall pay to each such Assuming Lender such upfront fee (if any) as
may have been agreed between the Borrower, the Administrative Agent and such
Assuming Lender.
(b) In connection with each incurrence of Additional Term
Loans pursuant to Section 1.01(a)(ii), the Lenders and the Borrower hereby agree
that, notwithstanding anything to the contrary contained in this Agreement, the
Borrower and the Administrative Agent may take all such actions as may be
necessary to ensure that all Lenders with outstanding Term Loans continue to
participate in each Borrowing of outstanding Term Loans (after giving effect to
the
-11-
19
incurrence of Additional Term Loans pursuant to Section 1.01(a)(ii)) on a pro
rata basis, including by adding the Additional Term Loans to be so incurred to
the then outstanding Borrowings of Term Loans on a pro rata basis (even though
as a result thereof such new Additional Term Loan (to the extent required to be
maintained as Eurodollar Loans), may effectively have a shorter Interest Period
than the existing Term Loans), and it is hereby agreed that (x) to the extent
any existing Borrowings of Term Loans that are maintained as Eurodollar Loans
are affected as a result thereof, any costs of the type described in Section
1.11 incurred by such Lenders in connection therewith shall be for the account
of the Borrower or (y) to the extent the Additional Term Loans to be so incurred
are added to the then outstanding Borrowings of Term Loans which are maintained
as Eurodollar Loans, the Lenders that have made such Additional Term Loans shall
be entitled to receive an effective interest rate on such Additional Term Loans
as is equal to the Eurodollar Rate as in effect two Business Days prior to the
incurrence of such Additional Term Loans plus the then Applicable Margin for
Term Loans.
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions set forth herein, the Borrower may request that any Issuing Lender
issue, at any time and from time to time on and after the Initial Borrowing Date
and prior to the 5th Business Day preceding the Maturity Date (or the 30th
Business Day prior to Maturity Date in the case of Trade Letters of Credit),
(x) for the account of the Borrower and for the benefit of any holder (or any
trustee, agent or other similar representative for any such holders) of L/C
Supportable Obligations of Parent or any of its Subsidiaries, an irrevocable
sight standby letter of credit, in a form customarily used by such Issuing
Lender or in such other form as has been approved by such Issuing Lender (each
such standby letter of credit, a "Standby Letter of Credit") in support of such
L/C Supportable Obligations and (y) for the account of the Borrower, an
irrevocable sight commercial letter of credit in a form customarily used by such
Issuing Lender (each such commercial letter of credit, a "Trade Letter of
Credit" and each such Trade Letter of Credit and each Standby Letter of Credit,
a "Letter of Credit") in support of customary commercial transactions of the
Borrower and its Subsidiaries.
(b) Each Issuing Lender may agree in its sole discretion, and
BTCo hereby agrees that, in the event a requested Letter of Credit is not issued
by one of the other Issuing Lenders, it will (subject to the terms and
conditions contained herein), at any time and from time to time on or after the
Initial Borrowing Date and prior to the 5th Business Day preceding the Maturity
Date, following its receipt of the respective Letter of Credit Request, issue
for the account of the Borrower one or more Letters of Credit (x) in the case of
Standby Letters of Credit, in support of such L/C Supportable Obligations of
Parent or any of its Subsidiaries and (y) in the case of Trade Letters of
Credit, in support of sellers of goods as referenced in Section 2.01(a),
provided that the respective Issuing Lender shall be under no obligation to
issue any Letter of Credit of the types described above if at the time of such
issuance:
(i) any order, judgment or decree of any governmental authority
or arbitrator shall purport by its terms to enjoin or restrain such
Issuing Lender from issuing such Letter of Credit or any requirement of
law applicable to such Issuing Lender or any
-12-
20
request or directive (whether or not having the force of law) from any
governmental authority with jurisdiction over such Issuing Lender shall
prohibit, or request that such Issuing Lender refrain from, the
issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon such Issuing Lender with respect to
such Letter of Credit any restriction or reserve or capital requirement
(for which such Issuing Lender is not otherwise compensated, including,
without limitation, by reimbursement from the Borrower) not in effect
on the date hereof, or any unreimbursed loss, cost or expense which was
not applicable, in effect or known to such Issuing Lender as of the
date hereof and which such Issuing Lender in good xxxxx xxxxx material
to it; or
(ii) such Issuing Lender shall have received notice from any
Lender prior to the issuance of such Letter of Credit of the type
described in the second sentence of Section 2.02(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit
shall be issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time would
exceed either (x) $150,000,000 or (y) when added to the aggregate outstanding
principal amount of all Revolving Loans, the Adjusted Total Revolving Loan
Commitment; (ii) each Letter of Credit shall be denominated in Dollars; (iii)
the Stated Amount of each Letter of Credit shall be no less than $50,000 or such
lesser amount as is acceptable to the Issuing Lender; and (iv) each Letter of
Credit shall by its terms terminate (A) in the case of Standby Letters of
Credit, on or before the earlier of (x) the date which occurs 12 months after
the date of the issuance thereof (although any such Letter of Credit may be
extendable, if such Letter of Credit could otherwise be issued pursuant to the
terms and conditions hereof, for successive periods of up to 12 months, but not
beyond the 5th Business Day preceding the Maturity Date), and (y) the 5th
Business Day preceding the Maturity Date and (B) in the case of Trade Letters of
Credit, on or before the earlier of (x) the date which occurs 180 days after the
date of issuance thereof and (y) the date which is 30 days prior to the Maturity
Date.
(d) Schedule III attached hereto contains a description of all
letters of credit issued by BTCo pursuant to the Existing Capstar Credit
Agreement or issued by Toronto Dominion (Texas), Inc. pursuant to the Existing
Chancellor Credit Agreement and which are to remain outstanding on the Initial
Borrowing Date. Each such letter of credit, including any extension thereof
(each an "Existing Letter of Credit") shall constitute a "Letter of Credit" for
all purposes of this Agreement. Each Existing Letter of Credit shall be deemed
issued for purposes of Sections 2.03(a), 3.01(b) and 3.01(c) on the Initial
Borrowing Date.
2.02 Letter of Credit Requests; Notices of Issuance. (a)
Whenever the Borrower desires that a Letter of Credit be issued for its account,
the Borrower shall give the Administrative Agent and the respective Issuing
Lender at least two Business Days' (or such shorter period as is acceptable to
the respective Issuing Lender) prior written notice thereof. In the case of
Letters of Credit to be issued pursuant to Section 2.01, each notice shall be in
the form of Exhibit D (each a "Letter of Credit Request").
-13-
21
(b) The making of each Letter of Credit Request shall be
deemed to be a representation and warranty by the Borrower that such Letter of
Credit may be issued in accordance with, and will not violate the requirements
of, Section 2.01(c). Unless the respective Issuing Lender has received notice
from any Lender before it issues a Letter of Credit that one or more of the
conditions specified in Sections 5A, 5B or 6 are not then satisfied, or that the
issuance of such Letter of Credit would violate Section 2.01(c), then such
Issuing Lender may issue the requested Letter of Credit for the account of the
Borrower in accordance with such Issuing Lender's usual and customary practices.
Upon its issuance of or amendment to any Standby Letter of Credit, the Issuing
Lender shall promptly notify the Borrower and the Administrative Agent, in
writing, of such amendment or issuance and such notice shall be accompanied by a
copy of such amendment or issuance. Upon receipt of such notice, the
Administrative Agent shall promptly notify each Participant accordingly and, at
the request of any Participant, the Administrative Agent shall forward a copy of
each amendment or issuance to such Participant. For Trade Letters of Credit on
which the Issuing Lender is other than the Administrative Agent, the Issuing
Lender will send to the Administrative Agent by facsimile transmission, promptly
on the first Business Day of each week, the daily aggregate Stated Amount of
Trade Letters of Credit issued by such Issuing Lender and outstanding during the
preceding week. The Administrative Agent will send to each Lender after each
calendar month end and upon each payment of the Letter of Credit Fee, a report
setting forth for the relevant period the daily aggregate Stated Amount of all
outstanding Trade Letters of Credit of all Issuing Lenders during such period.
2.03 Letter of Credit Participations. (a) Immediately upon the
issuance (or deemed issuance pursuant to Section 2.01(d)) by any Issuing Lender
of any Letter of Credit, such Issuing Lender shall be deemed to have sold and
transferred to each Lender with a Revolving Loan Commitment, other than such
Issuing Lender (each such Lender, in its capacity under this Section 2.03, a
"Participant"), and each such Participant shall be deemed irrevocably and
unconditionally to have purchased and received from such Issuing Lender, without
recourse or warranty, an undivided interest and participation, to the extent of
such Participant's Adjusted RL Percentage, in such Letter of Credit, each
drawing made thereunder and the obligations of the Borrower under this Agreement
with respect thereto, and any security therefor or guaranty pertaining thereto
(although the Letter of Credit Fee shall be payable directly to the
Administrative Agent for the account of the Participants as provided in Section
3.01(b) and the Participants shall have no right to receive any portion of any
Facing Fees). Upon any change in the respective Revolving Loan Commitments of
the Lenders pursuant to Section 1.13 or 13.04(b) or any changes to the Adjusted
RL Percentage as a result of a Lender Default, it is hereby agreed that, with
respect to all such outstanding Letters of Credit and Unpaid Drawings, there
shall be an automatic adjustment to the participations pursuant to this Section
2.03 to reflect the new Adjusted RL Percentages of the assignor and assignee
Lender or the Non-Defaulting Lender.
(b) In determining whether to pay under any Letter of Credit,
such Issuing Lender shall have no obligation relative to the other Lenders other
than to confirm that any documents required to be delivered under such Letter of
Credit appear to have been delivered and that they appear to substantially
comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by any Issuing Lender under or in connection with
any Letter
-14-
22
of Credit if taken or omitted in the absence of gross negligence or willful
misconduct as determined by a court of competent jurisdiction, shall not create
for such Issuing Lender any resulting liability to the Borrower or any Lender.
(c) In the event that any Issuing Lender makes any payment
under any Letter of Credit and the Borrower shall not have reimbursed such
amount in full to such Issuing Lender pursuant to Section 2.04(a), such Issuing
Lender shall promptly notify the Administrative Agent, which shall promptly
notify each Participant of such failure, and each Participant shall promptly and
unconditionally pay to such Issuing Lender the amount of such Participant's
Adjusted RL Percentage of such unreimbursed payment in Dollars and in same day
funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York
time) on any Business Day, any Participant required to fund a payment under a
Letter of Credit, such Participant shall make available to such Issuing Lender
in Dollars such Participant's Adjusted RL Percentage of the amount of such
payment on such Business Day in same day funds. If and to the extent such
Participant shall not have so made its Adjusted RL Percentage of the amount of
such payment available to such Issuing Lender, such Participant agrees to pay to
such Issuing Lender, forthwith on demand such amount, together with interest
thereon, for each day from such date until the date such amount is paid to such
Issuing Lender at the Federal Funds Rate. The failure of any Participant to make
available to such Issuing Lender its Adjusted RL Percentage of any payment under
any Letter of Credit shall not relieve any other Participant of its obligation
hereunder to make available to such Issuing Lender its Adjusted RL Percentage of
any Letter of Credit on the date required, as specified above, but no
Participant shall be responsible for the failure of any other Participant to
make available to such Issuing Lender such other Participant's Adjusted RL
Percentage of any such payment.
(d) Whenever any Issuing Lender receives a payment of a
reimbursement obligation as to which it has received any payments from the
Participants pursuant to clause (c) above, such Issuing Lender shall pay to each
Participant which has paid its Adjusted RL Percentage thereof, in Dollars and in
same day funds, an amount equal to such Participant's share (based upon the
proportionate aggregate amount originally funded by such Participant to the
aggregate amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of the
respective participations.
(e) The obligations of the Participants to make payments to
each Issuing Lender with respect to Letters of Credit issued by it shall be
irrevocable and not subject to any qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right
which the Parent or any of its Subsidiaries may have at any time
against a beneficiary named in a Letter of Credit, any transferee of
any Letter of Credit (or any Person for whom any such
-15-
23
transferee may be acting), the Administrative Agent, any Issuing
Lender, any Participant, or any other Person, whether in connection
with this Agreement, any Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any
underlying transaction between Parent or any Subsidiary of Parent and
the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
2.04 Agreement to Repay Letter of Credit Drawings. (a) The
Borrower hereby agrees to reimburse the respective Issuing Lender, by making
payment directly to such Issuing Lender in immediately available funds, for any
payment or disbursement made by it under any Letter of Credit (each such amount,
so paid until reimbursed, an "Unpaid Drawing"), no later than three Business
Days after the date of such payment or disbursement, with interest on the amount
so paid or disbursed by such Issuing Lender, to the extent not reimbursed prior
to 12:00 Noon (New York time) on the date of such payment or disbursement, from
and including the date paid or disbursed to but excluding the date such Issuing
Lender was reimbursed by the Borrower therefor at a rate per annum which shall
be the Base Rate in effect from time to time plus the Applicable Margin for
Revolving Loans maintained as Base Rate Loans; provided, however, to the extent
such amounts are not reimbursed prior to 12:00 Noon (New York time) on the fifth
Business Day following such payment or disbursement, interest shall thereafter
accrue on the amounts so paid or disbursed by such Issuing Lender (and until
reimbursed by the Borrower) at a rate per annum which shall be the Base Rate in
effect from time to time plus the Applicable Margin for Revolving Loans
maintained as Base Rate Loans plus 2%, in each such case, with interest to be
payable on demand. The respective Issuing Lender shall give the Borrower prompt
notice of each Drawing under any Letter of Credit, provided that the failure to
give any such notice shall in no way affect, impair or diminish the Borrower's
obligations hereunder.
(b) The obligations of the Borrower under this Section 2.04 to
reimburse the respective Issuing Lender with respect to drawings on Letters of
Credit (each, a "Drawing") (including, in each case, interest thereon) shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower may have or
have had against any Lender (including in its capacity as the issuer of the
Letter of Credit or as Participant), or any nonapplication or misapplication by
the beneficiary of the proceeds of such Drawing, the respective Issuing Lender's
only obligation to the Borrower being to confirm that any documents required to
be delivered under such Letter of Credit appear to have been delivered and that
they appear to substantially comply on their face with the requirements of such
Letter of Credit. Any action taken or omitted to be taken by any Issuing
-16-
24
Lender under or in connection with any Letter of Credit if taken or omitted in
the absence of gross negligence or willful misconduct as determined by a court
of competent jurisdiction and in accordance with the standards of care specified
in the Uniform Commercial Code of the State of New York, shall not create for
such Issuing Lender any resulting liability to the Borrower.
2.05 Increased Costs. If at any time after the Effective Date,
the introduction of or any change in any applicable law, rule, regulation,
order, guideline or request or in the interpretation or administration thereof
by any governmental authority charged with the interpretation or administration
thereof, or compliance by any Issuing Lender or any Participant, or any
corporation controlling such Person, with any request or directive by any such
authority (whether or not having the force of law), shall either (i) impose,
modify or make applicable any reserve, deposit, capital adequacy or similar
requirement against letters of credit issued by any Issuing Lender or
participated in by any Participant, or (ii) impose on any Issuing Lender or any
Participant, or any corporation controlling such Person, any other conditions
relating, directly or indirectly, to this Agreement or any Letter of Credit; and
the result of any of the foregoing is to increase the cost to any Issuing Lender
or any Participant of issuing, maintaining or participating in any Letter of
Credit, or reduce the amount of any sum received or receivable by any Issuing
Lender or any Participant hereunder or reduce the rate of return on its capital
with respect to Letters of Credit (except for changes in the rate of tax on, or
determined by reference to, the net income or profits of such Issuing Lender or
such Participant, or any corporation controlling such Person, or any franchise
tax based on the net income or profits of such Lender or Participant, or any
corporation controlling such Person, in either case pursuant to the laws of the
United States of America, the jurisdiction in which it is organized or in which
its principal office or applicable lending office is located or any subdivision
thereof or therein), but without duplication of any amounts payable in respect
of taxes pursuant to Section 4.04(a), then, upon demand to the Borrower by such
Issuing Lender or any Participant (a copy of which demand shall be sent by such
Issuing Lender or such Participant to the Administrative Agent) and subject to
the provisions of Section 13.15 (to the extent applicable), the Borrower shall
pay to such Issuing Lender or such Participant such additional amount or amounts
as will compensate such Lender for such increased cost or reduction in the
amount receivable or reduction on the rate of return on its capital. Any Issuing
Lender or any Participant, upon determining that any additional amounts will be
payable pursuant to this Section 2.05, will give prompt written notice thereof
to the Borrower, which notice shall include a certificate submitted to the
Borrower by such Issuing Lender or such Participant (a copy of which certificate
shall be sent by such Issuing Lender or such Participant to the Administrative
Agent), (a) setting forth in reasonable detail the basis for the calculation of
such additional amount or amounts necessary to compensate such Issuing Lender or
such Participant and (b) certifying that such Lender is generally charging such
costs to other similarly situated account parties. The certificate required to
be delivered pursuant to this Section 2.05 shall, if delivered in good faith and
absent manifest error, be final and conclusive and binding on the Borrower.
SECTION 3. Commitment Commission; Fees; Reductions of
Commitment.
3.01 Fees. (a) (i) The Borrower agrees to pay the
Administrative Agent for distribution to each Non-Defaulting Lender with a
Revolving Loan Commitment a commitment
-17-
25
commission (the "Revolving Loan Commitment Commission") for the period from the
Effective Date to and including the Maturity Date (or such earlier date as the
Total Revolving Loan Commitment shall have been terminated), computed at a rate
for each day equal to the Applicable Commitment Commission Percentage on the
daily average Unutilized Revolving Loan Commitment of such Non-Defaulting
Lender. Accrued Revolving Loan Commitment Commission shall be due and payable
quarterly in arrears on each Quarterly Payment Date and on the Maturity Date or
such earlier date upon which the Total Revolving Loan Commitment is terminated.
(ii) The Borrower agrees to pay the Administrative Agent for
distribution to each Non-Defaulting Lender with an Additional Term Loan
Commitment a commitment commission (the "Additional Term Loan Commitment
Commission" and, together with the Revolving Loan Commitment Commission, the
"Commitment Commission") for the period from the applicable Additional Term Loan
Assumption Date to and including the Additional Loans Availability Termination
Date (or such earlier date as the Additional Term Loan Commitment of such
Non-Defaulting Lender shall have been terminated), computed at a rate for each
day equal to the Applicable Commitment Commission Percentage on the daily
average Unutilized Additional Term Loan Commitment of such Non-Defaulting
Lender. Accrued Additional Term Loan Commitment Commission shall be due and
payable quarterly in arrears on each Quarterly Payment Date and on the
Additional Loans Availability Termination Date or such earlier date upon which
the Total Additional Term Loan Commitment is terminated.
(b) The Borrower agrees to pay to the Administrative Agent for
distribution to each Non-Defaulting Lender with a Revolving Loan Commitment
(based on their respective Adjusted RL Percentages), a fee in respect of each
Letter of Credit issued hereunder (the "Letter of Credit Fee"), for the period
from and including the date of issuance of such Letter of Credit, to and
including the termination of such Letter of Credit computed at a rate per annum
equal to the difference between (i) the Applicable Margin for Revolving Loans
maintained as Eurodollar Loans as in effect from time to time and (ii) 1/4 of 1%
on the daily Stated Amount of such Letter of Credit. Accrued Letter of Credit
Fees shall be due and payable quarterly in arrears on each Quarterly Payment
Date and upon the first day on or after the termination of the Total Revolving
Loan Commitment upon which no Letters of Credit remain outstanding.
(c) The Borrower agrees to pay to the respective Issuing
Lender, for its own account, a facing fee in respect of each Letter of Credit
issued for its account hereunder (the "Facing Fee") for the period from and
including the date of issuance of such Letter of Credit to and including the
termination of such Letter of Credit, computed at a rate equal to 1/4 of 1% per
annum of the daily Stated Amount of such Letter of Credit; provided that, in no
event shall the annual Facing Fee with respect to each Letter of Credit be less
than $500. Accrued Facing Fees shall be due and payable quarterly in arrears on
each Quarterly Payment Date and on the date upon which the Total Revolving Loan
Commitment has been terminated and no Letters of Credit remain outstanding.
(d) The Borrower shall pay, upon each payment under, issuance
of, or amendment to, any Letter of Credit, such amount as shall at the time of
such event be the
-18-
26
administrative charge and reasonable out-of-pocket expenses which the respective
Issuing Lender is generally imposing in connection with such occurrence with
respect to letters of credit.
(e) The Borrower shall pay to the Administrative Agent, for
its own account, such other fees as have been agreed to in writing by the
Borrower and the Administrative Agent.
(f) On the date which is one year following the Initial
Borrowing Date and so long as any Loans are outstanding or Commitments remain in
effect on such date, the Borrower shall pay to each of the Lenders, for its own
account, a fee equal to 0.30% of the total amount of the outstanding Term Loans
and Commitments of such Lender.
3.02 Voluntary Termination or Reduction of Total Unutilized
Loan Commitments. (a)(I) Upon at least two Business Days' prior written notice
(or telephonic notice promptly confirmed in writing) to the Administrative Agent
at its Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Lenders), the Borrower shall have the right, at any time
or from time to time, without premium or penalty, to terminate or partially
reduce the Total Unutilized Revolving Loan Commitment in whole or in part,
provided that (x) each such reduction shall apply proportionately to permanently
reduce the Revolving Loan Commitment of each Lender with such a Commitment, (y)
any partial reduction pursuant to this Section 3.02 shall be in integral
multiples of $1,000,000 and (z) the reduction to the Total Unutilized Revolving
Loan Commitment shall in no case be in an amount which would cause the Revolving
Loan Commitment of any Lender to be reduced (as required by the preceding clause
(x)) by an amount which exceeds the Unutilized Revolving Loan Commitment of such
Lender after giving effect to any prepayments made contemporaneously with such
reduction.
(II) At any time after any Additional Term Loan Commitments
have been provided by any Lender or any other financial institution pursuant to
Section 1.14 and prior to the termination of the Total Additional Term Loan
Commitment, upon at least two Business Days' prior written notice (or telephonic
notice promptly confirmed in writing) to the Administrative Agent at its Notice
Office (which notice the Administrative Agent shall promptly transmit to each of
the Lenders), the Borrower shall have the right, at any time or from time to
time, without premium or penalty, to terminate or partially reduce the Total
Unutilized Additional Term Loan Commitment in whole or in part, provided that
(x) each such reduction shall apply proportionately to permanently reduce the
Additional Term Loan Commitment of each Lender with such a Commitment, (y) any
partial reduction pursuant to this Section 3.02(a)(II) shall be in integral
multiples of $1,000,000 and (z) the reduction to the Total Unutilized Additional
Term Loan Commitment shall in no case be in an amount which would cause the
Additional Term Loan Commitment of any Lender to be reduced (as required by the
preceding clause (x)) by an amount which exceeds the Unutilized Additional Term
Loan Commitment of such Lender after giving effect to any prepayments made
contemporaneously with such reduction.
(b) In the event of certain refusals by a Lender to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Lenders as provided in
Section 13.12(b), the Borrower shall have the
-19-
27
right, upon five Business Days' written notice to the Administrative Agent at
its Notice Office (which notice the Administrative Agent shall promptly transmit
to each of the Lenders) to terminate the entire Commitment of such Lender with
respect to each Tranche which gave rise to the need to obtain such Lender's
individual consent, so long as (i) all Loans, together with accrued and unpaid
interest, Fees and other amounts, owing to such Lender with respect to such
Tranche are repaid concurrently with the effectiveness of such termination
pursuant to Section 4.01(b) (at which time Schedule I shall be deemed modified
to reflect such changed amounts) and (ii) the consents required by Section
13.12(b) in connection with such termination pursuant to this clause (b) have
been obtained. At such time such Lender shall no longer constitute a "Lender"
with respect to such terminated Tranche for purposes of this Agreement, except
with respect to indemnifications under this Agreement (including, without
limitation, Sections 1.10, 1.11, 2.05, 4.04, 12.06 and 13.01, as the same may be
limited by Section 13.15 (to the extent applicable)), which shall survive as to
such repaid Lender.
3.03 Mandatory Reduction of Commitments. (a) The Total
Commitment (and each Commitment of each Lender) shall terminate in its entirety
on November 30, 1999 unless the Initial Borrowing Date has occurred on or prior
to such date.
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Revolving Loan Commitment (and the Revolving
Loan Commitment of each Lender) shall terminate in its entirety on the earlier
of (i) the Maturity Date, and (ii) the date on which a Change of Ownership
occurs.
(c) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Initial Term Loan Commitment (and the
Initial Term Loan Commitment of each Lender) shall terminate in its entirety on
the Initial Borrowing Date (after giving effect to the making of Initial Term
Loans on such date).
(d) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Additional Term Loan Commitment (and
the Additional Term Loan Commitment of each Lender) shall (i) be reduced on each
date on which Additional Term Loans are incurred (before giving effect to the
making of Additional Term Loans incurred on such date), in an amount equal to
the aggregate principal amount of Additional Term Loans incurred on such date
and (ii) terminate in its entirety on the Additional Loans Availability
Termination Date (after giving effect to the making of Additional Term Loans on
or prior to such date).
(e) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date after the Effective Date upon which
a mandatory repayment of Term Loans (or a mandatory reduction to the Total Term
Loan Commitment, as the case may be), pursuant to any of Sections 4.02(b)
through 4.02(h), inclusive, is required (and exceeds in amount the aggregate
principal amount of Term Loans then outstanding (or the Total Term Loan
Commitment as then in effect, as the case may be)) or would be required if Term
Loans were then outstanding (or the Total Term Loan Commitment as then in
effect, as the case may be), the Total Revolving Loan Commitment shall be
permanently reduced by the amount, if any, by which the amount required to be
applied pursuant to said Sections (determined as if an unlimited
-20-
28
amount of Term Loans were actually outstanding) (or the Total Term Loan
Commitment as then in effect, as the case may be)) exceeds the aggregate
principal amount of Term Loans then outstanding (or the Total Term Loan
Commitment as then in effect, as the case may be). Each reduction to the Total
Revolving Loan Commitment pursuant to this Section 3.03(e) shall be applied
proportionally to permanently reduce the Revolving Loan Commitment of each
Lender with such a Commitment.
(f) Each reduction to the Total Initial Term Loan Commitment,
the Total Additional Term Loan Commitment and the Total Revolving Loan
Commitment pursuant to this Section 3.03 (or pursuant to Section 4.02) shall be
applied pro rata to reduce the Initial Term Loan Commitment, Additional Term
Loan Commitment or Revolving Loan Commitment, as the case may be, of each Lender
with such a Commitment.
SECTION 4. Prepayments; Payments; Taxes.
4.01 Voluntary Prepayments. (a) The Borrower shall have the
right to prepay the Loans, without premium or penalty, in whole or in part at
any time and from time to time on the following terms and conditions: (i) the
Borrower shall give the Administrative Agent prior to 12:00 Noon (New York time)
at its Notice Office (x) at least one Business Day's prior written notice (or
telephonic notice promptly confirmed in writing) of its intent to prepay Base
Rate Loans and (y) at least three Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) of its intent to prepay
Eurodollar Loans, whether such Loans are Initial Term Loans, Additional Term
Loans or Revolving Loans, the amount of such prepayment and the Types of Loans
to be prepaid and, in the case of Eurodollar Loans, the specific Borrowing or
Borrowings pursuant to which made, which notice the Administrative Agent shall
promptly transmit to each of the Lenders; (ii) each prepayment shall be in an
aggregate principal amount of at least $25,000; provided that, if any partial
prepayment of Eurodollar Loans made pursuant to any Borrowing shall reduce the
outstanding Eurodollar Loans made pursuant to such Borrowing to an amount less
than the Minimum Borrowing Amount applicable thereto, then such Borrowing shall
be converted at the end of the then current Interest Period into a Borrowing of
Base Rate Loans and any election of an Interest Period with respect thereto
given by the Borrower shall have no force or effect; (iii) each prepayment in
respect of any Loans made pursuant to a Borrowing shall, except as provided in
clause (iv) below, be applied pro rata among the Lenders which made such Loans;
and (iv) at the Borrower's election in connection with any prepayment of Loans,
such prepayment shall not be applied to the Revolving Loans of a Defaulting
Lender.
(b) In the event of certain refusals by a Lender to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Lenders as provided in
Section 13.12(b), the Borrower shall have the right, upon five Business Days'
prior written notice to the Administrative Agent at its Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the Lenders)
to repay all Loans, together with accrued and unpaid interest, Fees, and other
amounts owing to such Lender (or owing to such Lender with respect to each
Tranche which gave rise to the need to obtain such Lender's individual consent),
in accordance with said Section 13.12(b) so long as
-21-
29
(A) in the case of the repayment of Revolving Loans of any Lender pursuant to
this clause (b), the Revolving Loan Commitment of such Lender is terminated
concurrently with such repayment (at which time Schedule I shall be deemed
modified to reflect the changed Revolving Loan Commitments), (B) in the case of
the repayment of Additional Term Loans of any Lender pursuant to this clause
(b), the Additional Term Loan Commitment of such Lender (to the extent not
theretofore terminated) is terminated concurrently with such repayment (at which
time Schedule I shall be deemed modified to reflect the changed Additional Term
Loan Commitment) and (C) the consents required by Section 13.12(b) in connection
with the repayment pursuant to this clause (b) have been obtained. At such time
such Lender shall no longer constitute a "Lender" for purposes of this
Agreement, except with respect to indemnifications under this Agreement
(including, without limitation, Sections 1.10, 1.11, 2.05, 4.04, 12.06 and
13.01, as the same may be limited by Section 13.15 (to the extent applicable)),
which shall survive as to such repaid Lender.
4.02 Mandatory Repayments and Commitment Reductions. (a) (i)
On any day on which the sum of the aggregate outstanding principal amount of
Revolving Loans made by Non-Defaulting Lenders plus the Letter of Credit
Outstandings on such day exceeds the Adjusted Total Revolving Loan Commitment as
then in effect, the Borrower shall repay on such date the principal of Revolving
Loans of Non-Defaulting Lenders in an amount equal to such excess. If, after
giving effect to the repayment of all outstanding Revolving Loans of
Non-Defaulting Lenders, the aggregate amount of the Letter of Credit
Outstandings exceeds the Adjusted Total Revolving Loan Commitment as then in
effect, the Borrower shall pay to the Administrative Agent at the Payment Office
on such date an amount of cash or Cash Equivalents equal to the amount of such
excess (up to a maximum amount equal to the Letter of Credit Outstandings at
such time), such cash or Cash Equivalents to be held as security for all
obligations of the Borrower to the Lenders hereunder in a cash collateral
account to be established by the Administrative Agent.
(ii) On any day on which the aggregate outstanding principal
amount of the Revolving Loans made by any Defaulting Lender exceeds the
Revolving Loan Commitment of such Defaulting Lender, the Borrower shall prepay
principal of Revolving Loans of such Defaulting Lender in an amount equal to
such excess.
(b) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on any date after the
Effective Date that a break-up fee (the "AMFM/Clear Channel Break-Up Fee") is
paid to AMFM pursuant to, and as set forth in, the AMFM/Clear Channel Merger
Agreement, an amount equal to 100% of such AMFM/Clear Channel Break-Up Fee shall
be applied as a mandatory repayment and/or commitment reduction in accordance
with the requirements of Sections 4.02(i) and (j).
(c) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Effective Date on which the Leverage Ratio is 4.5:1.0 or greater (before giving
effect to the transactions described herein) and upon which Parent or any of its
Subsidiaries receives any proceeds from any sale or issuance of its equity, an
amount equal to 100% of the cash proceeds from the respective sale or issuance
(net of all
-22-
30
reasonable costs associated therewith, including, without limitation, all due
diligence costs and expenses paid for, or reimbursed by, Parent and/or any of
its Subsidiaries, all underwriting or similar fees, discounts and commissions,
attorneys' fees paid for or reimbursed by, Parent and/or any of its Subsidiaries
and other direct costs associated therewith) shall be applied as a mandatory
repayment and/or commitment reduction in accordance with the requirements of
Sections 4.02(i) and (j) (it being understood that for the purposes of this
Section 4.02(c), no capital contribution to Parent or any of its Subsidiaries
from its direct or indirect parent shall be construed as a sale or issuance of
equity).
(d) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Effective Date on which the Leverage Ratio is 4.5:1.0 or greater (after giving
effect to the transactions described herein) and upon which Parent or any of its
Subsidiaries receives any proceeds from any incurrence by Parent or any of its
Subsidiaries of Indebtedness for borrowed money (other than Indebtedness for
borrowed money permitted to be incurred pursuant to Section 9.04), an amount
equal to 100% of the cash proceeds of the respective incurrence of Indebtedness
(net of all reasonable costs associated therewith, including, without
limitation, all due diligence costs and expenses paid for, or reimbursed by,
Parent and/or any of its Subsidiaries, any underwriting or similar fees,
discounts and commissions, attorneys' fees and expenses paid for, or reimbursed
by, Parent and/or any of its Subsidiaries, all financing and/or commitment fees
and other direct costs associated therewith) shall be applied as a mandatory
repayment and/or commitment reduction in accordance with the requirements of
Sections 4.02(i) and (j).
(e) (A) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Effective Date upon which Parent or any of its Subsidiaries receives cash
proceeds from any sale of assets (including capital stock (other than a Xxxxx
Stock Disposition) and securities held thereby, but excluding sales of assets to
the extent permitted by Sections 9.02(ii), (v), (vi), (vii), (x) and (xii)), an
amount equal to 100% of the Net Sale Proceeds therefrom shall be applied as a
mandatory repayment and/or commitment reduction in accordance with the
requirement of Sections 4.02(i) and (j).
(B) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Effective Date on which the Leverage Ratio is 5.5:1.0 or greater and upon which
Parent or any of its Subsidiaries receives any proceeds from any Xxxxx Stock
Disposition, an amount equal to 100% of the net proceeds therefrom shall be
applied as a mandatory repayment and/or commitment reduction in accordance with
the requirements of Section 4.02(i) and (j); provided that, so long as no
Default or Event of Default then exists, the net proceeds from such Xxxxx Stock
Disposition shall not be required to be so applied on the date of receipt
thereof to the extent the Borrower has delivered a certificate to the
Administrative Agent on or prior to such date stating that such net proceeds
shall be utilized to repurchase or redeem AMFM Stock in accordance with Section
9.03(viii).
(f) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each Excess Cash Payment
Date an amount equal to 50% of the Excess Cash Flow for the relevant Excess Cash
Payment Period shall be applied as a mandatory
-23-
31
repayment and/or mandatory commitment reduction in accordance with the
requirements of Sections 4.02(i) and (j).
(g) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, within 10 days following
each date after the Effective Date on which Parent or any of its Subsidiaries
receives any proceeds from any Recovery Event, an amount equal to 100% of the
proceeds of such Recovery Event (net of reasonable costs including, without
limitation, legal costs and expenses and taxes incurred in connection with such
Recovery Event) shall be applied as a mandatory repayment and/or commitment
reduction in accordance with the requirements of Sections 4.02(i) and (j).
(h) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Effective Date upon which Parent or any of its Subsidiaries receives any
proceeds from any Dividend paid by a Non-Controlled Entity, an amount equal to
100% of the net proceeds therefrom shall be applied as a mandatory repayment
and/or commitment reduction in accordance with the requirements of Sections
4.02(i) and (j).
(i) Any amount required to be applied to any Tranche of Term
Loans pursuant to Sections 4.02(b) through (h), inclusive, shall be applied (i)
first, to repay the outstanding principal amount of Term Loans of the respective
Tranche and (ii) second, to the extent in excess thereof, to reduce the Total
Term Loan Commitment.
(j) (A) With respect to each repayment of Loans required by
this Section 4.02, the Borrower may designate the Types of Loans of the
respective Tranche which are to be repaid and, in the case of Eurodollar Loans,
the specific Borrowing or Borrowings of the respective Tranche pursuant to which
made; provided that: (i) repayments of Eurodollar Loans pursuant to this Section
4.02 may only be made on the last day of an Interest Period applicable thereto
unless all Eurodollar Loans of the respective Tranche with Interest Periods
ending on such date of required repayment and all Base Rate Loans of the
respective Tranche have been paid in full; (ii) if any repayment of Eurodollar
Loans made pursuant to a single Borrowing shall reduce the outstanding
Eurodollar Loans made pursuant to such Borrowing to an amount less than the
Minimum Borrowing Amount applicable thereto, such Borrowing shall be converted
at the end of the then current Interest Period into a Borrowing of Base Rate
Loans; and (iii) each repayment of any Loans made pursuant to a Borrowing shall
be applied pro rata among the Lenders which made such Loans. In the absence of a
designation by the Borrower as described in the preceding sentence, the
Administrative Agent shall, subject to the above, make such designation in its
sole discretion with a view, but no obligation, to minimize breakage costs owing
under Section 1.11.
(B) Notwithstanding the foregoing, so long as no Default or
Event of Default then exists, the net cash proceeds from the transaction
required to be applied in accordance with this clause (j) (other than Sections
4.02(b) and (f)) shall not be required to repay Loans and/or reduce commitments
on the date of receipt thereof to the extent the Borrower has delivered a
certificate to the Administrative Agent on or prior to such date stating that
such net cash proceeds shall be reinvested in Reinvestment Assets within 360
days following such date and, provided further, that if all or any portion of
such net cash proceeds not applied as a mandatory repayment
-24-
32
and/or commitment reduction pursuant to the preceding proviso are not so used
within 360 days after the date of receipt of such net cash proceeds, then such
remaining portion not used shall be applied on the date which is 360 days
following the date of receipt of such net cash proceeds as a mandatory repayment
and/or commitment reduction in accordance with the requirements of clause (A)
above. At the time of the acquisition of any Reinvestment Assets, Parent shall
comply and shall cause its Subsidiaries to comply with Section 8.12.
(k) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, (i) all the then outstanding Loans of any Tranche
shall be repaid in full on the Maturity Date and (ii) all outstanding Loans
shall be required to be repaid upon the occurrence of a Change of Ownership.
4.03 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement or any Note
shall be made to the Administrative Agent for the account of the Lender or
Lenders entitled thereto not later than 12:00 Noon (New York time) on the date
when due and shall be made in Dollars in immediately available funds at the
Payment Office of the Administrative Agent. Whenever any payment to be made
hereunder or under any Note shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest shall be
payable at the applicable rate during such extension.
4.04 Net Payments. (a) All payments made by the Borrower
hereunder or under any Note will be made without set-off, counterclaim or other
defense. Except as provided in Section 4.04(b), all such payments will be made
free and clear of, and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to such payments
(but excluding, except as provided in the second succeeding sentence, any tax
imposed on or measured by the net income or net profits of a Lender, or any
franchise tax based on the net income or net profits of a Lender, in either case
pursuant to the laws of the United States of America or the jurisdiction in
which it is organized or in which the principal office or applicable lending
office of such Lender is located or any subdivision thereof or therein) and all
interest, penalties or similar liabilities with respect thereto (all such
non-excluded taxes, levies, imposts, duties, fees, assessments or other charges
being referred to collectively as "Taxes"). If any Taxes are so levied or
imposed, the Borrower agrees to pay the full amount of such Taxes, and such
additional amounts as may be necessary so that every payment of all amounts due
under this Agreement or under any Note, after withholding or deduction for or on
account of any Taxes, will not be less than the amount provided for herein or in
such Note. If any amounts are payable in respect of Taxes pursuant to the
preceding sentence of this Section 4.04(a), then the Borrower agrees to
reimburse each Lender, upon the written request of such Lender, for taxes
imposed on or measured by the net income or net profits of such Lender, or any
franchise tax based on the net income or net profits of such Lender, in either
case pursuant to the laws of the jurisdiction in which such Lender is organized
or in which the principal office or applicable lending office of such Lender is
located or under the laws of any political subdivision or taxing authority of
any such jurisdiction in which such Lender is organized or in which the
principal office or applicable lending office of
-25-
33
such Lender is located and for any withholding of taxes as such Lender shall
determine in good faith are payable by, or withheld from, such Lender in respect
of such amounts so paid to or on behalf of such Lender pursuant to the preceding
sentence and in respect of any amounts paid to or on behalf of such Lender
pursuant to this sentence. The Borrower will furnish to the Administrative Agent
within 45 days after the date the payment of any Taxes is due pursuant to
applicable law certified copies of tax receipts evidencing such payment by the
Borrower. The Borrower agrees to indemnify and hold harmless each Lender, and
reimburse such Lender upon its written request, for the amount of any Taxes so
levied or imposed and paid by such Lender.
(b) Each Lender that is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) agrees to deliver to the
Borrower and the Administrative Agent on or prior to the Effective Date, or in
the case of a Lender that is an assignee or transferee of an interest under this
Agreement pursuant to Sections 1.13 or 13.04 (unless the respective Lender was
already a Lender hereunder immediately prior to such assignment or transfer), on
the date of such assignment or transfer to such Lender, (i) two accurate and
complete original signed copies of Internal Revenue Service Form 4224 or Form
1001 (or successor forms) certifying to such Lender's entitlement to a complete
exemption from United States withholding tax with respect to payments to be made
under this Agreement and under any Note, or (ii) if the Lender is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either
Internal Revenue Service Form 1001 or 4224 pursuant to clause (i) above, (x) a
certificate substantially in the form of Exhibit E (any such certificate, a
"Section 4.04(b)(ii) Certificate") and (y) two accurate and complete original
signed copies of Internal Revenue Service Form W-8 (or successor form)
certifying to such Lender's entitlement to a complete exemption from United
States withholding tax with respect to payments of interest to be made under
this Agreement and under any Note. In addition, each Lender agrees that from
time to time after the Effective Date, when a lapse in time or change in
circumstances renders the previous certification obsolete or inaccurate in any
material respect, it will deliver to the Borrower and the Administrative Agent
two new accurate and complete original signed copies of Internal Revenue Service
Form 4224 or 1001, or Form W-8 and a Section 4.04(b)(ii) Certificate, as the
case may be, and such other forms as may be required in order to confirm or
establish the entitlement of such Lender to a continued exemption from or
reduction in United States withholding tax with respect to payments under this
Agreement and any Note, or it shall immediately notify the Borrower and the
Administrative Agent of its inability to deliver any such form or Certificate,
in which case such Lender shall not be required to deliver any such form or
Certificate pursuant to this Section 4.04(b). Notwithstanding anything to the
contrary contained in Section 4.04(a), but subject to Section 13.04(b) and the
immediately succeeding sentence, (x) the Borrower shall be entitled, to the
extent it is required to do so by law, to deduct or withhold income or similar
taxes imposed by the United States (or any political subdivision or taxing
authority thereof or therein) from interest, fees or other amounts payable
hereunder for the account of any Lender which is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income
tax purposes to the extent that such Lender has not provided to the Borrower
U.S. Internal Revenue Service Forms that establish a complete exemption from
such deduction or withholding and (y) the Borrower shall not be obligated
pursuant to Section 4.04(a) hereof to gross-up payments to be made to a Lender
in respect of income or similar taxes imposed by the United States if (I) such
Lender has not provided to the Borrower the Internal Revenue Service
-26-
34
Forms required to be provided to the Borrower pursuant to this Section 4.04(b)
or (II) in the case of a payment, other than interest, to a Lender described in
clause (ii) above, to the extent that such Forms do not establish a complete
exemption from withholding of such taxes. Notwithstanding anything to the
contrary contained in the preceding sentence or elsewhere in this Section 4.04
and except as set forth in Section 13.04(b), the Borrower agrees to pay
additional amounts and to indemnify each Lender in the manner set forth in
Section 4.04(a) (without regard to the identity of the jurisdiction requiring
the deduction or withholding) in respect of any amounts deducted or withheld by
it as described in the immediately preceding sentence as a result of any changes
after the Effective Date in any applicable law, treaty, governmental rule,
regulation, guideline or order, or in the interpretation thereof, relating to
the deducting or withholding of income or similar Taxes.
(c) The provisions of this Section 4.04 are subject to the
provisions of Section 13.15 (to the extent applicable).
SECTION 5A. Conditions Precedent to Initial Credit Events. The
obligation of each Lender to make Loans and to participate in Letters of Credit
under this Agreement, and the obligations of each Issuing Lender to issue
Letters of Credit, in each case on the Initial Borrowing Date is subject, at the
time of such Credit Event, to the satisfaction of the following conditions:
5A.01 Execution of Agreement; Notes. On or prior to the
Initial Borrowing Date (i) this Agreement shall have been executed and delivered
as provided in Section 13.10 and (ii) there shall have been delivered to the
Administrative Agent for the account of each Lender which has requested the
same, the appropriate Term Note and/or Revolving Note executed by the Borrower,
in the amount, maturity and as otherwise provided herein.
5A.02 Opinion of Counsel. On the Initial Borrowing Date, the
Administrative Agent shall have received from Xxxxxx & Xxxxxx, L.L.P., special
counsel to Parent and its Subsidiaries, an opinion addressed to the Agents and
each of the Lenders and dated the Initial Borrowing Date covering the matters
set forth in Exhibit F.
5A.03 Corporate Documents; Proceedings; etc. (a) On the
Initial Borrowing Date, the Administrative Agent shall have received a
certificate, dated the Initial Borrowing Date, signed by an Authorized Officer
of each Credit Party, and attested to by the Secretary or any Assistant
Secretary of such Credit Party, all in the form of Exhibit G with appropriate
insertions, together with copies of the certificate or articles of
incorporation, limited liability company formation certificates, operating
agreement, member agreement, partnership agreement, limited liability company
agreement and by-laws (or other equivalent organization documents) of such
Credit Party and the resolutions, or such other administrative approval, of such
Credit Party, as the case may be, referred to in such certificate, and all of
the foregoing shall be reasonably acceptable to the Agents.
(b) On the Initial Borrowing Date, all corporate and legal
proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Transaction Documents
shall be reasonably satisfactory in form and substance to
-27-
35
the Agents and the Required Lenders, and the Administrative Agent shall have
received all information and copies of all documents and papers, including
records of corporate proceedings, governmental approvals and good standing
certificates which the Agents reasonably may have requested in connection
therewith, such documents and papers where appropriate to be certified by proper
corporate or governmental authorities.
5A.04 Shareholders' Agreements; Management Agreements;
Employment Agreements; Tax Sharing Agreements. On or prior to the Initial
Borrowing Date, there shall have been delivered to the Administrative Agent true
and correct copies, certified as true and complete by an Authorized Officer of
Parent or its respective Subsidiaries of (i) all agreements entered into by
AMFM, Parent or any of Parent's Subsidiaries governing the terms and relative
rights of its capital stock, limited liability company interests and, to the
extent known to AMFM, Parent or any of Parent's Subsidiaries, any agreements
entered into by shareholders, relating to any such entity with respect to its
capital stock or limited liability company interests (collectively, the
"Shareholders' Agreements"), (ii) all agreements with senior members of, or with
respect to, the management of AMFM, Parent or any of Parent's Subsidiaries
(collectively, the "Management Agreements"), (iii) any material employment
contracts entered into by AMFM, Parent or any of Parent's Subsidiaries
(collectively, the "Employment Agreements") and (iv) all agreements relating to
the sharing of tax liabilities and benefits among AMFM, Parent and/or Parent's
Subsidiaries (each a "Tax Sharing Agreement" and, collectively, the "Tax Sharing
Agreements"); all of which Shareholders' Agreements, Management Agreements,
Employment Agreements and Tax Sharing Agreements, shall be in form and substance
reasonably satisfactory to the Agents and the Required Lenders and shall be in
full force and effect on the Initial Borrowing Date.
5A.05 Senior Notes Tender Offer/Consent Solicitation. On or
prior to the Initial Borrowing Date, (i) the Borrower shall have consummated a
tender offer/consent solicitation with respect to the outstanding Borrower's
10 3/4% Senior Subordinated Notes (the "Borrower's 10 3/4% Senior Subordinated
Notes Tender Offer/Consent Solicitation"), pursuant to which (x) the Borrower
shall have offered, subject to the terms and conditions contained in the
Borrower's 10 3/4% Senior Subordinated Notes Tender Offer/Consent Solicitation,
to purchase all of the outstanding Borrower's 10 3/4% Senior Subordinated Notes
at the cash price set forth in the Borrower's 10 3/4% Senior Subordinated Notes
Tender Offer/Consent Solicitation and (y) consents shall have been solicited to
a proposed amendment to the Borrower's 10 3/4% Senior Subordinated Notes
Indenture, on terms and conditions set forth in the Borrower's 10 3/4% Senior
Subordinated Notes Tender Offer/Consent Solicitation, which amendment shall
provide for the substantial elimination of the operating covenants contained in
the Borrower's 10 3/4% Senior Subordinated Notes Indenture (including, without
limitation, restrictions on the incurrence of liens, restricted payments,
transactions with affiliates and indebtedness, and, in the event at least 75% of
the outstanding Borrower's 10 3/4% Senior Subordinated Notes have been tendered
and not theretofore withdrawn, the asset sale and change of control covenants)
and the amendment or elimination of certain other provisions in the Borrower's
10 3/4% Senior Subordinated Notes Indenture, (ii) the period for tendering
Borrower's 10 3/4% Senior Subordinated Notes pursuant thereto shall have
terminated, (iii) the Borrower shall have received sufficient consents to
authorize the execution and delivery of the Borrower's 10 3/4% Senior
Subordinated Notes
-28-
36
Indenture Supplement, (iv) the Borrower and the trustee under the Borrower's
10 3/4% Senior Subordinated Notes Indenture shall have duly executed and
delivered the Borrower's 10 3/4% Senior Subordinated Notes Indenture Supplement,
(v) the Borrower shall have purchased all of the Borrower's 10 3/4% Senior
Subordinated Notes tendered (which shall in no event be less than a majority in
aggregate principal amount of all outstanding Borrower's 10 3/4% Senior
Subordinated Notes), and not theretofore withdrawn, pursuant to the Borrower's
10 3/4% Senior Subordinated Notes Tender Offer/Consent Solicitation, (vi) the
Administrative Agent shall have received true and correct copies of the Offer to
Purchase and Consent Solicitation Statement and Borrower's 10 3/4% Senior
Subordinated Notes Indenture Supplement delivered and/or entered into in
connection with the Borrower's 10 3/4% Senior Subordinated Notes Tender
Offer/Consent Solicitation and (vii) the Administrative Agent shall be
reasonably satisfied that, and the Borrower hereby confirms that, the Borrower's
10 3/4% Senior Subordinated Notes Tender Offer/Consent Solicitation shall have
been consummated in accordance with the Borrower's 10 3/4% Senior Subordinated
Notes Tender Offer/Consent Solicitation Documents, the Borrower's 10 3/4% Senior
Subordinated Notes Indenture and all applicable laws.
5A.06 Consummation of the Mergers. (a) On the Initial
Borrowing Date, the Mergers shall have been consummated in all material respects
in accordance with the Merger Documents and all applicable laws, and each of the
conditions precedent to the consummation of the Mergers shall have been
satisfied and not waived in any material respect except with the consent of the
Agents and the Required Lenders (which consent shall not be unreasonably
withheld or delayed).
(b) On or prior to the Initial Borrowing Date, there shall
have been delivered to the Administrative Agent true and correct copies of the
Merger Documents, and all of the terms and conditions of the Merger Documents
shall be reasonably satisfactory in form and substance to the Agents and the
Required Lenders.
5A.07 Refinancings. (a) On or prior to the Initial Borrowing
Date, the total commitment in respect of the Indebtedness to be Refinanced shall
have been terminated, and all loans and notes with respect thereto shall have
been repaid in full, together with interest thereon, all letters of credit
issued thereunder (including the Existing Letters of Credit) shall have been
terminated, incorporated hereunder as Letters of Credit as contemplated by
Section 2.01(d) or supported by a back-stop Letter of Credit issued hereunder
and all other amounts (including premiums) owing pursuant to the Indebtedness to
be Refinanced shall have been repaid in full and all documents in respect of the
Indebtedness to be Refinanced and all guarantees with respect thereto shall have
been terminated (except as to indemnification provisions which may survive to
the extent provided therein) and be of no further force and effect.
(b) On or prior to the Initial Borrowing Date, the creditors
in respect of the Indebtedness to be Refinanced shall have terminated and
released any and all security interests and Liens on the assets owned by Parent
and its Subsidiaries. The Administrative Agent shall have received such releases
of security interests in and Liens on the assets owned by Parent and its
Subsidiaries as may have been reasonably requested by the Agents and the
Required Lenders, which releases shall be in form and substance reasonably
satisfactory to the Agents and the
-29-
37
Required Lenders. Without limiting the foregoing, there shall have been
delivered (i) proper termination statements (Form UCC-3 or the appropriate
equivalent) for filing under the UCC of each jurisdiction where a financing
statement (Form UCC-1 or the appropriate equivalent) was filed with respect to
the Indebtedness to be Refinanced and the documentation related thereto, (ii)
termination or reassignment of any security interest in, or Lien on, any
patents, trademarks, copyrights or similar interests of Parent or any of its
Subsidiaries on which filings have been made, (iii) terminations of all
mortgages, leasehold mortgages, deeds of trust and leasehold deeds of trust
created with respect to property of Parent or any of its Subsidiaries, in each
case, to secure the obligations in respect of the Indebtedness to be Refinanced,
all of which shall be in form and substance reasonably satisfactory to the
Agents and the Required Lenders, and (iv) all collateral owned by Parent and its
Subsidiaries in the possession of any of the creditors in respect of the
Indebtedness to be Refinanced or any collateral agent or trustee under any
related security document shall have been returned to Parent or its respective
Subsidiary, as the case may be.
(c) On the Initial Borrowing Date and after giving effect to
the Transaction, Parent and its Subsidiaries shall have no Indebtedness or
preferred stock outstanding other than (i) the Loans and (ii) the Indebtedness
listed on Schedule IV hereto (with the Indebtedness described in this sub-clause
(ii) being herein called the "Existing Indebtedness"). On and as of the Initial
Borrowing Date, all of the Existing Indebtedness shall remain outstanding after
giving effect to the Transaction and the other transactions contemplated hereby
without any default or event of default existing thereunder or arising as a
result of the Transaction and the other transactions contemplated hereby (except
to the extent amended or waived by the parties thereto on terms and conditions
reasonably satisfactory to the Administrative Agent and the Required Lenders).
5A.08 Subsidiary Guaranty. On the Initial Borrowing Date, each
Subsidiary Guarantor shall have duly authorized, executed and delivered a
Subsidiary Guaranty in the form of Exhibit H hereto (as amended, modified,
extended, renewed, replaced, restated or supplemented from time to time, the
"Subsidiary Guaranty") and the Subsidiary Guaranty shall be in full force and
effect.
5A.09 Pledge Agreement. On the Initial Borrowing Date, AMFM
and each Credit Party shall have duly authorized, executed and delivered a
Pledge Agreement in the form of Exhibit I (as amended, modified, extended,
renewed, replaced, restated or supplemented from time to time, the "Pledge
Agreement") and shall have delivered to the Collateral Agent, as pledgee, all
the Pledged Securities referred to therein (which, in any event, shall include
all of the capital stock of Xxxxx Advertising Company (the "Xxxxx Stock") then
owned by the Borrower) then owned by such Credit Party, endorsed in blank in the
case of promissory notes or accompanied by executed and undated stock powers in
the case of capital stock, and the Pledge Agreement shall be in full force and
effect; provided that the pledge of the capital stock of Parent by AMFM pursuant
to the Pledge Agreement shall be on a non-recourse basis to AMFM.
5A.10 Adverse Change, etc. (a) On the Initial Borrowing Date,
nothing shall have occurred since December 31, 1998 (and neither the Agents nor
the Lenders shall have become aware of any facts or conditions not previously
disclosed to them in writing) which
-30-
38
could reasonably be likely to have a material adverse effect on the rights or
remedies of the Agents or the Lenders, or on the ability of the Credit Parties
to perform their respective obligations to the Agents and the Lenders or which
could reasonably be likely to have a material adverse effect on the business,
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole or Parent and
its Subsidiaries taken as a whole.
(b) On or prior to the Initial Borrowing Date, all necessary
governmental (domestic and foreign) and third party approvals and/or consents in
connection with the Transaction and the other transactions contemplated by the
Transaction Documents and otherwise referred to herein or therein shall have
been obtained and remain in effect, and all applicable waiting periods with
respect thereto shall have expired without any action being taken by any
competent authority which restrains, prevents or imposes materially adverse
conditions upon, the consummation of the Transaction or the other transactions
contemplated by the Transaction Documents or otherwise referred to herein or
therein. Additionally, there shall not exist any judgment, order, injunction or
other restraint issued or filed or a hearing seeking injunction or other
restraint pending or notified prohibiting or imposing materially adverse
conditions upon, or materially delaying or making economically unfeasible the
consummation of the Transaction or the other transactions contemplated by the
Transaction Documents or otherwise required to be consummated herein or therein.
5A.11 Projections. On or prior the Initial Borrowing Date, the
Lenders shall have received the Projections described in Section 7.05(d), which
Projections shall be in form and substance reasonably satisfactory to the Agents
and the Required Lenders.
5A.12 Payment of Fees. On the Initial Borrowing Date, the
Borrower shall have paid to the Agents and the Lenders all costs, fees and
expenses (including, without limitation, legal fees and expenses) payable to the
Agents and the Lenders to the extent then due.
SECTION 5B. Conditions Precedent to the Additional Term Loans.
The obligation of each Lender with an Additional Term Loan Commitment to make
Additional Term Loans to the Borrower hereunder is subject, at the time of the
making of such Additional Term Loans to the satisfaction of the following
conditions:
(a) On the date of any Borrowing of Additional Term Loans, the
Borrower shall be in compliance with the financial covenants contained
in Sections 9.08, 9.09 and 9.10, with such financial covenants to be
calculated on a Pro Forma Basis.
(b) To the extent the proceeds of any Borrowing of Additional
Term Loans are to be used to finance, in whole or in part, any Year
2000 Transactions, on or prior to the date of such Borrowing of
Additional Term Loans, all necessary governmental (domestic and
foreign) and third-party approvals and/or consents in connection with
the relevant Year 2000 Transactions and the other transactions
contemplated by the relevant Year 2000 Transaction Documents and
otherwise referred to herein or therein shall have been obtained and
remain in effect, and all applicable waiting periods with respect
thereto shall have expired without any action being taken by any
competent authority which restrains,
-31-
39
prevents or imposes materially adverse conditions upon, the
consummation of the relevant Year 2000 Transactions or the other
transactions contemplated by the relevant Year 2000 Transaction
Documents or otherwise referred to herein or therein. Additionally,
there shall not exist any judgment, order, injunction or other
restraint issued or filed or a hearing seeking injunction or other
restraint pending or notified prohibiting or imposing materially
adverse conditions upon, or materially delaying or making economically
unfeasible the consummation of the relevant Year 2000 Transactions or
the other transactions contemplated by the relevant Year 2000
Transaction Documents or otherwise required to be consummated herein or
therein.
SECTION 6. Conditions Precedent to All Credit Events. The
obligation of (i) each Lender to make Loans, (ii) any Issuing Lender to issue
any Letter of Credit or (iii) any Lender to participate in any Letter of Credit
issued or to be issued, is subject, at the time of each such Credit Event, to
the satisfaction of the following conditions:
6.01 No Default; Representations and Warranties. At the time
of each such Credit Event and also after giving effect thereto (i) there shall
exist no Default or Event of Default and (ii) all representations and warranties
contained herein and in the other Credit Documents shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of such Credit Event, unless stated to
relate to a specific earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of such earlier
date.
6.02 Notice of Borrowing; Letter of Credit Request. (a) Prior
to the making of each Loan, the Administrative Agent shall have received a
Notice of Borrowing meeting the requirements of Section 1.03(a).
(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the respective Issuing Lender shall have received a
Letter of Credit Request meeting the requirements of Section 2.03.
The acceptance of the proceeds of each Loan by the Borrower or
the issuance of each Letter of Credit by an Issuing Lender at the request of the
Borrower (occurring on the Initial Borrowing Date and thereafter) shall
constitute a representation and warranty by each of Parent, Holdings and the
Borrower to the Agents and each of the Lenders that all the conditions specified
in Section 5A (with respect to Credit Events on the Initial Borrowing Date), in
Section 5B (with respect to the making of Additional Term Loans) and in this
Section 6 (with respect to Credit Events on and after the Initial Borrowing
Date) and applicable to such Credit Events have been satisfied as of that time.
All of the Notes, certificates, legal opinions and other documents and papers
referred to in Sections 5A and 5B and in this Section 6, unless otherwise
specified, shall be delivered to the Administrative Agent at the Notice Office
for the account of each of the Lenders and except for the Notes, in sufficient
counterparts or copies for each of the Lenders and shall be in form and
substance reasonably satisfactory to the Agents and the Required Lenders.
SECTION 7. Representations, Warranties and Agreements. In
order to induce the Lenders to enter into this Agreement and to make the Loans,
and issue (or participate in) the
-32-
40
Letters of Credit as provided herein, each of Parent, Holdings and the Borrower
makes the following representations, warranties and agreements, all of which
shall survive the execution and delivery of this Agreement and the Notes and the
making of the Loans and the issuance of the Letters of Credit, and with the
occurrence of each Credit Event on or after the Initial Borrowing Date being
deemed to constitute a representation and warranty that the matters specified in
this Section 7 are true and correct in all material respects on and as of the
date of each such Credit Event (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date).
7.01 Corporate or Partnership Status. Each of Parent and its
Subsidiaries (i) is a duly organized or formed and validly existing Company in
good standing under the laws of the jurisdiction of its organization or
formation, (ii) has the Company power and authority to own its property and
assets and to transact the business in which it is engaged and presently
proposes to engage and (iii) is duly qualified to do business and is in good
standing in each jurisdiction where the conduct of its business requires such
qualifications except for failures to be so qualified which, individually or in
the aggregate, could not reasonably be expected to have a material adverse
effect on the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Borrower or of Parent and its
Subsidiaries taken as a whole.
7.02 Corporate or Partnership Power and Authority. Each Credit
Party has the Company power and authority to execute, deliver and perform the
terms and provisions of each of the Transaction Documents to which it is a party
and has taken all necessary Company action to authorize the execution, delivery
and performance by it of each of such Transaction Documents. Each Credit Party
has duly executed and delivered each of the Transaction Documents to which it is
a party, and each of such Transaction Documents constitutes such Credit Party's
legal, valid and binding obligation enforceable in accordance with its terms,
except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
7.03 No Violation. Neither the execution, delivery or
performance by any Credit Party of the Transaction Documents to which it is a
party, nor compliance by it with the terms and provisions thereof, (i) will
contravene any provision of any applicable law, statute, rule or regulation or
any applicable order, writ, injunction or decree of any court or governmental
instrumentality, (ii) will conflict with or result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of (or the obligation to create or impose)
any Lien (except pursuant to the Pledge Agreement) upon any of the material
properties or assets of Parent or any of its Subsidiaries pursuant to the terms
of any indenture, mortgage, deed of trust, credit agreement or loan agreement,
or any other material agreement, contract or instrument, to which Parent or any
of its Subsidiaries is a party or by which it or any of its property or assets
is bound or to which it may be subject or (iii) will violate any provision of
the certificate or articles of incorporation, partnership agreement or by-laws
(or other equivalent organization documents) of Parent or any of its
Subsidiaries.
-33-
41
7.04 Governmental Approvals. No order, consent, approval,
license, authorization or validation of, or filing, recording or registration
with (except filings necessary to perfect the Liens granted pursuant to the
Pledge Agreement and except as have been obtained or made on or prior to the
Initial Borrowing Date), or exemption by, any governmental or public body or
authority, or any subdivision thereof, is required to authorize, or is required
in connection with, (i) the execution, delivery and performance of any
Transaction Document or (ii) the legality, validity, binding effect or
enforceability of any such Transaction Document, except where the failure to so
obtain or make would not have a material adverse effect on (x) the business,
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of the Borrower or of Parent and its Subsidiaries taken as a whole or
(y) the ability of the Credit Parties to perform their obligations under the
Transaction Documents or the rights and remedies of the Agents and the Lenders
thereunder; provided, however, that: (a) subsequent to the date of execution of
the Transaction Documents, copies of certain of the Transaction Documents are
required to be filed with the FCC; (b) Parent and its Subsidiaries will be
required from time to time to obtain certain authorizations of, or to make
certain filings with, the FCC that are required in connection with the ordinary
course of business of Parent and its Subsidiaries; (c) under the Communications
Act and the FCC rules, FCC approval is required prior to the transfer of control
of Parent, Holdings or the Borrower or any of their respective Subsidiaries or
the assignment of any of the FCC Authorizations or prior to the exercise of any
voting rights or management authority over Parent, Holdings or the Borrower or
any of their respective Subsidiaries; and (d) prior to the exercise of certain
rights or remedies under the Pledge Agreement by the Agents or the Lenders, or
their respective successors and assigns, FCC consents and notifications with
respect to such exercise may be required to be timely obtained or made.
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc. (a) The consolidated balance sheets of (i)
Chancellor Media Corporation of Los Angeles and its Subsidiaries and Capstar
Broadcasting Corporation for the fiscal year ended December 31, 1998 and (ii)
AMFM, Chancellor Media Corporation of Los Angeles, CRBP, CCI and their
respective Subsidiaries for the three-month period ended on September 30, 1999,
and the related statements of income, cash flows and shareholders' equity of
each such Person and its Subsidiaries for such fiscal year or three month period
ended as of said dates, as the case may be, copies of which have been furnished
to the Lenders on or prior to the Initial Borrowing Date, fairly present the
financial condition of each such Person and its Subsidiaries at the date of such
statements and the results of operations of each such Person and its
Subsidiaries for such fiscal year and three-month period, as the case may be.
All of the foregoing financial statements are true and correct in all material
respects and have been prepared in accordance with GAAP consistently applied
except to the extent provided in the notes to said financial statements and
subject, in the case of the September 30, 1999 statements, to normal year-end
adjustments. After giving effect to the Transaction, since December 31, 1998,
there has been no material adverse change in the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects of the
Borrower or of Parent and its Subsidiaries taken as a whole.
(b) On and as of the Initial Borrowing Date, on a pro forma
basis after giving effect to the Transaction and all Indebtedness incurred, and
to be incurred, and Liens created, and to be created, by Parent and its
Subsidiaries in connection with the transactions contemplated
-34-
42
herein (a) the sum of the assets, at a fair valuation, of each of Parent and its
Subsidiaries taken as a whole, Holdings and its Subsidiaries taken as a whole,
and the Borrower and its Subsidiaries taken as a whole, will exceed their debts;
(b) each of Parent and its Subsidiaries taken as a whole, Holdings and its
Subsidiaries taken as a whole, and the Borrower and its Subsidiaries taken as a
whole, has not incurred and does not intend to incur, and does not believe that
they will incur, debts beyond their ability to pay such debts as such debts
mature; and (c) each of Parent and its Subsidiaries taken as a whole, Holdings
and its Subsidiaries taken as a whole, and the Borrower and its Subsidiaries
taken as a whole, will have sufficient capital with which to conduct their
businesses.
(c) Except as fully disclosed in the financial statements
delivered pursuant to Section 7.05(a), there were as of the Initial Borrowing
Date no liabilities with respect to Parent or any of its Subsidiaries of any
nature whatsoever (whether absolute, accrued, contingent or otherwise and
whether or not due) which, either individually or in aggregate, would be
material to the Borrower or to Parent and its Subsidiaries taken as a whole. As
of the Initial Borrowing Date, neither Parent, Holdings nor the Borrower knows
of any basis for the assertion against it of any liability that is not fully
disclosed in the financial statements delivered pursuant to Section 7.05(a)
which, either individually or in the aggregate, could reasonably be expected to
be material to the Borrower or Parent and its Subsidiaries taken as a whole.
(d) On and as of the Initial Borrowing Date, the financial
projections (the "Projections") previously delivered to the Agents and the
Lenders have been prepared on a basis consistent with the financial statements
referred to in Section 7.05(a) (other than as set forth or presented in such
Projections), and there are no statements or conclusions in any of the
Projections which are based upon or include information known to Parent,
Holdings or the Borrower to be misleading in any material respect or which fail
to take into account material information regarding the matters reported
therein. The Projections contain estimates and projections based upon
information that was available at such time and believed to be correct and upon
assumptions believed to be reasonable; provided that Parent, Holdings and the
Borrower do not warrant that such estimates and projections will ultimately
prove to have been correct.
7.06 Litigation. There are no actions, suits or proceedings
pending or, to the best knowledge of Parent, Holdings, and the Borrower,
threatened (i) with respect to any Transaction Document or (ii) that could
reasonably be expected to materially and adversely affect (x) the business,
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of the Borrower or of Parent and its Subsidiaries taken as a whole or
(y) the rights or remedies of the Administrative Agent, the Collateral Agent,
the Other Agents or the Lenders or on the ability of any Credit Party to perform
its obligations to them hereunder and under the other Transaction Documents to
which it is, or will be, a party.
7.07 True and Complete Disclosure. All factual information
(taken as a whole) furnished by or on behalf of Parent, Holdings or the Borrower
in writing to the Administrative Agent or any Lender (including, without
limitation, all information contained in the Transaction Documents, but
excluding the Projections) for purposes of or in connection with this Agreement,
the other Transaction Documents or any transaction contemplated herein or
therein is, and all
-35-
43
other such factual information (taken as a whole) hereafter furnished by or on
behalf of Parent, Holdings or the Borrower in writing to the Administrative
Agent or any Lender will be, true and accurate in all material respects on the
date as of which such information is dated or certified and not incomplete by
omitting to state any fact necessary to make such information (taken as a whole)
not misleading in any material respect at such time in light of the
circumstances under which such information was provided.
7.08 Use of Proceeds; Margin Regulations. (a) The proceeds of
Additional Term Loans and Revolving Loans shall be used by the Borrower to (i)
finance, in part, the Transaction and the payment of fees and expenses relating
thereto, (ii) finance, in part, the Year 2000 Transactions and the payment of
fees and expenses relating thereto and (iii) provide for the Borrower's and its
Subsidiaries' working capital and general corporate purposes (including to
effect Permitted Section 9.02(xiii) Acquisitions to the extent permitted in this
Agreement).
(b) The proceeds of all Initial Term Loans shall be used by
the Borrower to finance, in part, the Transaction and the payment of fees and
expenses relating thereto.
(c) No part of the proceeds of any Loan will be used to
purchase or carry any Margin Stock or to extend credit for the purpose of
purchasing or carrying any Margin Stock. Neither the making of any Loan nor the
use of the proceeds thereof will violate or be inconsistent with the provisions
of Regulations T, U or X.
7.09 Tax Returns and Payments. Each of Parent, Holdings, the
Borrower and each of their Subsidiaries have timely filed or caused to be timely
filed, on the due dates thereof or within applicable grace periods, with the
appropriate taxing authority, all Federal and all material state returns,
statements, forms and reports for taxes (the "Returns") required to be filed by
or with respect to the income, properties or operations of Parent and/or any of
its Subsidiaries. The Returns accurately reflect in all material respects all
liability for taxes of Parent, Holdings, the Borrower and their respective
Subsidiaries, as the case may be, for the periods covered thereby. Each of
Parent, Holdings, the Borrower and their respective Subsidiaries have paid all
material taxes payable by them other than taxes which are not delinquent, and
other than those contested in good faith and for which adequate reserves have
been established in accordance with GAAP. Except as disclosed in the financial
statements referred to in Section 7.05(a), there is no material action, suit,
proceeding, investigation, audit, or claim now pending or, to the best knowledge
of Parent, Holdings or the Borrower, threatened by any authority regarding any
taxes relating to Parent, Holdings, the Borrower or any of their respective
Subsidiaries. As of the Initial Borrowing Date, none of Parent, Holdings, the
Borrower nor any of their respective Subsidiaries has entered into an agreement
or waiver or been requested to enter into an agreement or waiver extending any
statute of limitations relating to the payment or collection of taxes of Parent,
Holdings, the Borrower or any of their respective Subsidiaries, or is aware of
any circumstances that would cause the taxable years or other taxable periods of
Parent, Holdings, the Borrower or any of their respective Subsidiaries not to be
subject to the normally applicable statute of limitations. None of Parent,
Holdings, the Borrower or any of their respective Subsidiaries has incurred, or
will incur, any material tax liability in connection with the Transaction or the
other transactions contemplated hereby.
-36-
44
7.10 Compliance with ERISA. Each Plan is in substantial
compliance with ERISA and the Code; no Reportable Event has occurred with
respect to a Plan; no Plan or Multiemployer Plan is insolvent or in
reorganization; no Plan has an Unfunded Current Liability; no Plan has an
accumulated or waived funding deficiency, has permitted decreases in its funding
standard account or has applied for an extension of any amortization period
within the meaning of Section 412 of the Code; all contributions required to be
made by Parent, Holdings, the Borrower or any of their respective Subsidiaries
or any ERISA Affiliate with respect to a Plan or Multiemployer Plan have been
timely made; none of Parent, Holdings, the Borrower nor any of their respective
Subsidiaries nor any ERISA Affiliate has incurred any material liability to or
on account of a Plan or Multiemployer Plan pursuant to Section 409, 502(i),
502(1), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section
401(a)(29), 4971, 4975 or 4980 of the Code or reasonably expects to incur any
material liability under any of the foregoing Sections with respect to any Plan
or Multiemployer Plan; no proceedings have been instituted to terminate or
appoint a trustee to administer any Plan; no condition exists which presents a
material risk to Parent, Holdings, the Borrower or any of their respective
Subsidiaries or any ERISA Affiliate of incurring a material liability to or on
account of a Plan or Multiemployer Plan pursuant to the foregoing provisions of
ERISA and the Code; using actuarial assumptions and computation methods
consistent with Part 1 of subtitle E of Title IV of ERISA, the aggregate
liabilities of Parent, Holdings, the Borrower, their respective Subsidiaries and
their ERISA Affiliates to all Multiemployer Plans in the event of a complete
withdrawal therefrom, as of the close of the most recent fiscal year of each
such Plan ended prior to the date of the most recent Credit Event, would not
result or reasonably be expected to result in a material liability; no lien
imposed under the Code or ERISA on the assets of Parent, Holdings, the Borrower
or any of their respective Subsidiaries or any ERISA Affiliate exists or is
reasonably likely to arise on account of any Plan or Multiemployer Plan; and
Parent, Holdings, the Borrower and their respective Subsidiaries do not maintain
or contribute to any employee welfare benefit plan (as defined in Section 3(1)
of ERISA) which provides benefits to retired employees or other former employees
(other than as required by Section 601 of ERISA) or any employee pension benefit
plan (as defined in Section 3(2) of ERISA) the obligations with respect to which
could reasonably be expected to have a material adverse effect on the ability of
Parent, Holdings, the Borrower or any of its Subsidiaries to perform their
respective obligations under the Credit Documents to which they are a party.
7.11 The Pledge Agreement. The security interests created in
favor of the Collateral Agent, as pledgee, for the benefit of the Secured
Creditors under the Pledge Agreement constitute first priority perfected
security interests in the Pledged Securities described in the Pledge Agreement,
subject to no security interest of any other person. No filings or recordings
are required in order to perfect (or maintain the perfection or priority of) the
security interests created in the Pledged Securities and the proceeds thereof
under the Pledge Agreement.
7.12 Properties. Parent, Holdings, the Borrower and each of
their respective Subsidiaries have good and indefeasible title to all properties
(or a valid leasehold estate with respect to leased properties) owned by them,
including all property reflected in the balance sheet of CCI referred to in
Section 7.05(a), free and clear of all Liens, other than (i) as referred to in
such balance sheet or in the notes thereto or (ii) Permitted Liens.
-37-
45
7.13 Capitalization. (a) On the Initial Borrowing Date the
authorized capital stock of Parent (the "Parent Common Stock") shall consist of
1,000 shares of common stock, $.01 par value per share, of which 1,000 shares
shall be issued and outstanding. All such outstanding shares have been duly and
validly issued, are fully paid and non-assessable, are free of preemptive rights
and have been pledged pursuant to the Pledge Agreement. As of the Initial
Borrowing Date, Parent does not have outstanding any securities convertible into
or exchangeable for its capital stock or outstanding any rights to subscribe for
or to purchase, or any options for the purchase of, or any agreement providing
for the issuance (contingent or otherwise) of, or any calls, commitments or
claims of any character relating to, its capital stock.
(b) On the Initial Borrowing Date, the authorized capital
stock of Holdings shall consist of (x) 3,000 shares of common stock, $.01 par
value per share, of which 1,000 shares shall be issued and outstanding and (y)
10,000,000 shares of preferred stock, $.01 par value per share, of which
1,254,618 shares of 12% Senior Exchangeable Preferred Stock shall be issued and
outstanding. All such outstanding shares have been duly and validly issued, are
fully paid and nonassessable, are free of preemptive rights and, in the case of
all such outstanding shares of common stock, have been pledged pursuant to the
Pledge Agreement. As of the Initial Borrowing Date, Holdings does not have
outstanding any rights to subscribe for or to purchase, or any options for the
purchase of, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to,
its capital stock.
(c) On the Initial Borrowing Date, the authorized capital
stock of the Borrower shall consist of (x) 200,000 shares of Class A common
stock, $.01 par value per share, of which 1,040 shares shall be issued and
outstanding and (y) 10,010,000 shares of preferred stock, $.01 par value per
share, of which 1,430,989 shares of 12-5/8% Series E Cumulative Exchangeable
Preferred Stock due October 31, 2006 shall be issued and outstanding. All such
outstanding shares have been duly and validly issued, are fully paid and
nonassessable, are free of preemptive rights and (other than publicly traded
preferred stock) have been pledged pursuant to the Pledge Agreement. As of the
Initial Borrowing Date, the Borrower does not have outstanding any securities
convertible into or exchangeable for its capital stock or outstanding any rights
to subscribe for or to purchase, or any options for the purchase of, or any
agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, its capital stock.
7.14 Subsidiaries. As of the Initial Borrowing Date, Parent
has no direct or indirect Subsidiaries other than Holdings and its Subsidiaries,
Holdings has no direct or indirect Subsidiaries other than the Borrower and its
Subsidiaries and the Borrower has no Subsidiaries other than those Subsidiaries
listed on Schedule VI hereto. Schedule VI correctly sets forth, as of the
Initial Borrowing Date, the percentage ownership (direct and indirect) of Parent
in each class of capital stock of each of its Subsidiaries and also identifies
the direct owner thereof.
7.15 Compliance with Statutes, etc. Each of Parent and its
Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property (including applicable statutes, regulations, orders and
-38-
46
restrictions relating to environmental standards and controls), except such
noncompliances as could not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of the Borrower or of Parent and its Subsidiaries taken as a whole.
7.16 Environmental Matters. (a) Parent, Holdings, the Borrower
and each of their respective Subsidiaries have complied with, and on the date of
such Credit Event are in compliance with, all applicable Environmental Laws and
the requirements of any permits issued under such Environmental Laws. There are
no pending or, to the best knowledge of Parent, Holdings and the Borrower after
due inquiry, past or threatened Environmental Claims against Parent, Holdings,
the Borrower or any of their respective Subsidiaries or any Real Property owned
or operated by Parent, Holdings, the Borrower or any of their respective
Subsidiaries. There are no facts, circumstances, conditions or occurrences on
any Real Property owned or operated by Parent, Holdings, the Borrower or any of
their respective Subsidiaries or, to the best knowledge of Parent, Holdings and
the Borrower after due inquiry, on any property adjoining or in the vicinity of
any such Real Property that, to the best knowledge of Parent, Holdings and the
Borrower after due inquiry, could reasonably be expected (i) to form the basis
of an Environmental Claim against Parent, Holdings, the Borrower or any of their
respective Subsidiaries or any such Real Property or (ii) to cause any such Real
Property to be subject to any restrictions on the ownership, occupancy, use or
transferability of such Real Property by Parent, Holdings, the Borrower or any
of their respective Subsidiaries under any applicable Environmental Law.
(b) Hazardous Materials have not at any time been generated,
used, treated or stored on, or transported to or from, any Real Property owned
or operated by Parent or any of its Subsidiaries except in compliance with
applicable Environmental Laws. Hazardous Materials have not at any time been
Released on or from any Real Property owned or operated by Parent or any of its
Subsidiaries except in compliance with applicable Environmental Laws. There are
not now any underground storage tanks located on any Real Property owned or
operated by Parent or any of its Subsidiaries.
(c) Notwithstanding anything to the contrary in this Section
7.16, the representations made in this Section 7.16 shall only be untrue if the
aggregate effect of all failures and noncompliances of the types described above
could reasonably be expected to have a material adverse effect on the business,
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of the Borrower or of Parent and its Subsidiaries taken as a whole.
7.17 Investment Company Act. None of Parent, Holdings, the
Borrower nor any of their respective Subsidiaries is an "investment company" or
a company "controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended.
7.18 Public Utility Holding Company Act. None of Parent,
Holdings, the Borrower nor any of their respective Subsidiaries is a "holding
company," or a "subsidiary company" of a "holding company," or an "affiliate" of
a "holding company" or of a "subsidiary
-39-
47
company" of a "holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
7.19 Labor Relations. None of Parent, Holdings, the Borrower
nor any of their respective Subsidiaries is engaged in any unfair labor practice
that could reasonably be expected to have a material adverse effect on the
business, operations, property, assets, condition (financial or otherwise) or
prospects of the Borrower or on Parent and its Subsidiaries taken as a whole.
There is (i) no unfair labor practice complaint pending against Parent or any of
its Subsidiaries or, to the best knowledge of Parent, Holdings and the Borrower,
threatened against any of them, before the National Labor Relations Board, and
no significant grievance or significant arbitration proceeding arising out of or
under any collective bargaining agreement is so pending against Parent or any of
its Subsidiaries or, to the best knowledge of Parent, Holdings and the Borrower,
threatened against any of them, (ii) no strike, material labor dispute, material
slowdown or material stoppage pending against Parent or any of its Subsidiaries
or, to the best knowledge of Parent, Holdings and the Borrower, threatened
against Parent or any of its Subsidiaries and (iii) to the best knowledge of
Parent, Holdings and the Borrower, no union representation question existing
with respect to the employees of Parent or any of its Subsidiaries, except (with
respect to any matter specified in clause (i), (ii) or (iii) above, either
individually or in the aggregate) such as could not reasonably be expected to
have a material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of Borrower or of
Parent and its Subsidiaries taken as a whole.
7.20 Patents, Licenses, Franchises and Formulas. Each of
Parent and its Subsidiaries owns all material patents, trademarks, permits,
service marks, trade names, copyrights, licenses, franchises and formulas, or
rights with respect to the foregoing, and has obtained assignments of all leases
and other rights of whatever nature, necessary for the present conduct of its
business, without any known conflict with the rights of others, the failure to
obtain which could reasonably be likely to result in a material adverse effect
on the business, operations, property, assets, liabilities, condition (financial
or otherwise) or prospects of the Borrower or of Parent and its Subsidiaries
taken as a whole.
7.21 Special Purpose Corporation. Parent engages in no
business activities and has no significant assets (other than the capital stock
of Holdings) or liabilities (other than its guaranty provided in Section 14 and
such liabilities as otherwise permitted by this Agreement).
7.22 Business of Holdings. Holdings engages in no business
activities and has no significant assets (other than the capital stock of the
Borrower and Xxxx Media Group, Inc. and interests in Westchester Radio LLC and
Non-Controlled Entities) or liabilities (other than its guaranty provided in
Section 14, its obligations in respect of certain of the Existing Indebtedness
and such liabilities as otherwise permitted by this Agreement).
7.23 FCC Authorizations. Parent and its Subsidiaries hold such
validly issued FCC main station and associated auxiliary, translator and booster
radio licenses and authorizations as are necessary to operate the Radio Stations
as they are currently operated (collectively, the "FCC Authorizations"), each of
which is in full force and effect. The FCC
-40-
48
main station licenses for Radio Stations to be held by Parent and its
Subsidiaries, after giving effect to all elements of the Transaction that are
closing or being consummated as of or on the Initial Borrowing Date
(collectively, the "Main Station Licenses") are listed on Schedule VII, each of
which FCC Authorizations has the expiration date indicated on Schedule VII.
Neither Parent, Holdings nor the Borrower has knowledge of any material adverse
condition imposed by the FCC as part of any FCC Authorizations which is neither
set forth on the face thereof as issued by the FCC nor contained in the rules
and regulations of the FCC applicable generally to radio stations of the type,
nature, class or location of each Radio Station. Each Radio Station is operated
by Parent and its Subsidiaries in all material respects (i) in accordance with
the terms and conditions of the FCC Authorizations applicable to it and (ii) in
accordance with the rules and regulations of the FCC and the Communications Act
of 1934, as amended (the "Communications Act"). No proceedings are pending or,
to the knowledge of Parent, Holdings or the Borrower, are threatened which may
reasonably be expected to result in the revocation, modification, non-renewal or
suspension of any of the FCC Authorizations, the denial of any pending
applications, the issuance of any cease and desist order or the imposition of
any material fines, forfeitures or other administrative actions by the FCC with
respect to the Radio Stations or their operation, other than proceedings
affecting the radio broadcasting industry in general. Reports, applications and
other documents required to be filed by any Credit Party or any Subsidiary of
the Borrower with the FCC with respect to the Radio Stations have in all
material respects been timely filed and all such reports, applications and
documents are true, correct and complete in all material respects, and neither
Parent, Holdings nor the Borrower has knowledge of any matters (i) which could
reasonably be expected to result in the suspension or revocation of or the
refusal to renew any of the FCC Authorizations or the imposition of any material
fines or forfeitures by the FCC upon any Credit Party or any Subsidiary of the
Borrower or (ii) which could reasonably be expected to result in the
modification or revocation of any Radio Stations' authorization to operate as
currently authorized under the rules and regulations of the FCC. There are no
unsatisfied or otherwise outstanding notices of apparent liability or violations
issued by the FCC with respect to any Radio Station or its operations.
7.24 Subordinated Indebtedness. The subordination provisions
contained in any subordinated Existing Indebtedness and the documentation
relating thereto are enforceable by the Lenders against the Borrower, the
Subsidiary Guarantors and the holders of such subordinated Existing
Indebtedness, as the case may be, and all Obligations hereunder and under the
other Credit Documents are or will be within the definitions of "Senior
Indebtedness," "Designated Senior Indebtedness" and "Guarantor Senior
Indebtedness," as the case may be, included in such provisions of the
documentation governing such subordinated Existing Indebtedness.
7.25 Transaction. At the time of the applicable consummation
thereof, the Transaction shall have been consummated in all material respects in
accordance with the terms of the respective Transaction Documents and all
applicable laws. At the time of the applicable consummation thereof, all
material consents and approvals of, and filings and registrations with, and all
other actions in respect of, all governmental agencies, authorities or
instrumentalities required in order to make or consummate the Transaction to the
extent then required have been obtained, given, filed or taken and are or will
be in full force and effect (or effective judicial relief with respect thereto
has been obtained). All applicable waiting periods with respect thereto have or,
-41-
49
prior to the time when required, will have, expired without, in all such cases,
any action being taken by any competent authority which restrains, prevents or
imposes material adverse conditions upon the Transaction. Additionally, there
does not exist any judgment, order or injunction prohibiting or imposing
material adverse conditions upon the Transaction, or the occurrence of any
Credit Event or the performance by any Credit Party of its obligations under the
Transaction Documents to which it is a party.
7.26 Indebtedness. (a) Schedule IV sets forth a true and
complete list of all Existing Indebtedness as of the Initial Borrowing Date, in
each case showing the aggregate principal amount thereof and the name of the
respective borrower and any other entity which directly or indirectly guaranteed
such debt.
(b) Schedule V sets forth a true and complete list of all
Indebtedness of Parent and its Subsidiaries which is to be repaid in full on the
Initial Borrowing Date (excluding Interest Rate Protection Agreements, earn-outs
and similar obligations arising out of acquisitions) (including, in any event,
the Existing Credit Facilities) (the "Indebtedness to be Refinanced"), in each
case showing the aggregate principal amount thereof, the name of the respective
borrower and any other entity which directly or indirectly guaranteed such
Indebtedness.
7.27 Year 2000 Representation. Any reprogramming required to
permit the proper functioning, in and following the year 2000, of (i) Parent's
and its Subsidiaries' computer systems and (ii) equipment containing embedded
microchips (including systems and equipment supplied by others) and the testing
of all such systems and equipment, as so reprogrammed, will be completed by
November 30, 1999. The cost to Parent and its Subsidiaries of such reprogramming
and testing which has not been incurred and of the reasonably foreseeable
consequences of year 2000 to Parent and its Subsidiaries (including, without
limitation, reprogramming errors and the failure of others' systems or
equipment) could not reasonably be expected to have a material adverse effect on
the ability of the Credit Parties to perform their respective obligations to the
Agents and the Lenders or could not reasonably be expected to have a material
adverse effect on the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower or of Parent and
its Subsidiaries taken as a whole.
SECTION 8. Affirmative Covenants. Parent, Holdings and the
Borrower hereby covenant and agree that on and after the Effective Date and
until the Total Commitment and all Letters of Credit have terminated and the
Loans, Notes and Unpaid Drawings, together with interest, Fees and all other
Obligations incurred hereunder and thereunder, are paid in full:
8.01 Information Covenants. Parent, Holdings and/or the
Borrower will furnish to each Lender:
(a) Quarterly Financial Statements. As soon as available and
in any event within 50 days after the close of each of the first three
quarterly accounting periods in each fiscal year of AMFM, the combined
balance sheets of AMFM, Holdings and the Borrower and their
Consolidated Subsidiaries for each fiscal quarter, each as of the end
of such quarter and the related combined statements of income and
statements of cash flows for such quarter and for the elapsed portion
of the fiscal year ended with the last day of such
-42-
50
quarter and setting forth in the statements of income only, the
comparative figures for the corresponding quarter in the prior fiscal
year and the budgeted figures for such quarter as set forth in the
respective budget delivered pursuant to Section 8.01(d).
(b) Annual Financial Statements. Within 95 days after the
close of each fiscal year of AMFM, (i) the consolidated balance sheets
of AMFM, Holdings and the Borrower and their Consolidated Subsidiaries
for each fiscal year, each as at the end of such fiscal year and the
related statements of income and retained earnings and of cash flows
for such fiscal year, and setting forth comparative figures for the
preceding fiscal year commencing fiscal year 1997 and certified, in the
case of such consolidated statements, by PricewaterhouseCoopers or such
other independent certified public accountants of recognized national
standing reasonably acceptable to the Agents, together with a report of
such accounting firm (which report shall be unqualified as to scope)
stating that in the course of its regular audit of the financial
statements of Parent and its Subsidiaries, which audit was conducted in
accordance with generally accepted auditing standards, such accounting
firm obtained no knowledge of any Default or Event of Default under
Sections 9.03, 9.04, 9.05 and 9.07 through 9.10, inclusive, which has
occurred and is continuing or, if in the opinion of such accounting
firm such a Default or Event of Default has occurred and is continuing,
a statement as to the nature thereof and (ii) management's discussions
and analysis of the important operational and financial developments
during such fiscal year in respect of Parent and its Subsidiaries.
(c) Management Letters. Promptly after the receipt thereof by
Parent or any of its Subsidiaries, a copy of any final "management
letter" received by Parent or such Subsidiary from its certified public
accountants and management's responses thereto.
(d) Budgets. No later than 60 days following the commencement
of the first day of each fiscal year of Parent, a budget in form
satisfactory to the Agents prepared by Parent for (x) in the case of
budgeted statements of income, each of the four fiscal quarters of such
fiscal year prepared in detail, and (y) in the case of budgeted
statements of sources and uses of cash and balance sheets, for such
fiscal year on an annual basis and prepared in detail and for the
fiscal year immediately following such fiscal year prepared in summary
form, in each case, of each of AMFM, Holdings, the Borrower and its
Subsidiaries accompanied by the statement of an Authorized Officer of
Parent to the effect that, to the best of his knowledge, the budget is
a reasonable estimate for the period covered thereby.
(e) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Section 8.01(a) and (b), a
certificate of an Authorized Officer of the Borrower to the effect
that, to the best of such officer's knowledge, no Default or Event of
Default has occurred and is continuing or, if any Default or Event of
Default has occurred and is continuing, specifying the nature and
extent thereof, which certificate shall, in the case of any such
financial statements delivered in respect of a period ending on the
last day of a fiscal quarter or year of AMFM, (x) set forth the
calculations required to establish whether the Borrower was in
compliance with the provisions of Sections
-43-
51
9.03, 9.04, 9.05, and 9.07 through 9.10, inclusive, at the end of such
fiscal quarter or year, as the case may be, (y) set forth the
calculations required to establish the Applicable Margin and Applicable
Commitment Commission Percentage at such time and (z) only in the case
of financial statements delivered pursuant to Section 8.01(b), set
forth the calculations required to establish whether the Borrower was
in compliance with Section 4.02(f) and set forth the amount of Excess
Cash Flow for the respective Excess Cash Payment Period.
(f) Notice of Default or Litigation. Promptly, and in any
event within three Business Days after an Authorized Officer of Parent
or any of its Subsidiaries obtains knowledge thereof, notice of (i) the
occurrence of any event which constitutes a Default or Event of Default
and (ii) any litigation or governmental investigation or proceeding
pending (x) against Parent or any of its Subsidiaries which could
reasonably be expected to materially and adversely affect the business,
operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or Parent and its Subsidiaries
taken as a whole, (y) with respect to any material Indebtedness of the
Borrower and its Subsidiaries taken as a whole or (z) with respect to
any Transaction Document which could reasonably be expected to
materially and adversely affect the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects of
the Borrower or Parent and its Subsidiaries taken as a whole.
(g) Other Reports and Filings. Promptly, copies of all (x)
financial information, proxy materials and other information and
reports, if any, which Parent or any of its Subsidiaries shall file
with the Securities and Exchange Commission or any successor thereto
(the "SEC") including, without limitation, in connection with the
issuance of any applicable Existing Indebtedness, or deliver to holders
of its Indebtedness pursuant to the terms of the documentation
governing such Indebtedness (or any trustee, agent or other
representative therefor) and (y) material filings or communications
with the FCC or pursuant to and/or as required by the Communications
Act.
(h) Annual Meetings with Lenders. At the request of the
Administrative Agent or the Required Lenders, Parent shall within 120
days after the close of each fiscal year of Parent hold a meeting at a
time and place selected by Parent and acceptable to the Administrative
Agent with all of the Lenders at which meeting shall be reviewed the
financial results of the previous fiscal year and the financial
condition of Parent and its Subsidiaries and the budgets presented for
the current fiscal year of Holdings and its Subsidiaries.
(i) Environmental Matters. Promptly upon, and in any event
within ten (10) Business Days after, an officer of Parent or any of its
Subsidiaries obtains knowledge thereof, notice of one or more of the
following environmental matters, unless such environmental matters
could not, individually or when aggregated with all other such
environmental matters, be reasonably expected to materially and
adversely affect the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the
Borrower or of Parent and its Subsidiaries taken as a whole: (i) any
-44-
52
pending or threatened Environmental Claim against Parent or any of its
Subsidiaries or any Real Property owned or operated by Parent or any of
its Subsidiaries; (ii) any condition or occurrence on or arising from
any Real Property owned or operated by Parent or any of its
Subsidiaries that (x) results in noncompliance by, Parent or any of its
Subsidiaries with any applicable Environmental Law or (y) could
reasonably be expected to form the basis of an Environmental Claim
against Parent or any of its Subsidiaries or any such Real Property;
(iii) any condition or occurrence on any Real Property owned or
operated by Parent or any of its Subsidiaries that could reasonably be
expected to cause such Real Property to be subject to any restrictions
on the ownership, occupancy, use or transferability by Parent or any of
its Subsidiaries of such Real Property under any Environmental Law; and
(iv) the taking of any removal or remedial action in response to the
actual or alleged presence of any Hazardous Material on any Real
Property owned or operated by Parent or any of its Subsidiaries as
required by any Environmental Law or any governmental or other
administrative agency; provided, that in any event Parent shall deliver
to each Lender all notices received by Parent or any of its
Subsidiaries from any government or governmental agency under, or
pursuant to, CERCLA. All such notices shall describe in reasonable
detail the nature of the claim, investigation, condition, occurrence or
removal or remedial action and Parent's or such Subsidiary's response
thereto. In addition, Parent will provide the Lenders with copies of
all communications with any government or governmental agency relating
to Environmental Laws, all communications with any person relating to
Environmental Claims, and such detailed reports of any Environmental
Claim as may reasonably be requested by the Lenders.
(j) FCC Authorizations. Promptly, copies of all material
notices from the FCC regarding any FCC Authorization received by Parent
or any of its Subsidiaries which could reasonably be expected to
materially and adversely affect the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects of
the Borrower or Parent and its Subsidiaries taken as a whole.
(k) Other Information. From time to time, (i) such other
information or documents (financial or otherwise) with respect to
Parent or its Subsidiaries as the Administrative Agent, any Other Agent
or any Lender may reasonably request in writing and (ii) such monthly
reports with respect to Parent and/or its Subsidiaries or combined
statements of income for each Region as the Administrative Agent may
reasonably request in writing, which monthly reports or statements of
income shall be in form and substance reasonably satisfactory to the
Administrative Agent.
8.02 Books, Records and Inspections. Parent will, and will
cause each of its Subsidiaries to, keep proper books of record and account in
which full, true and correct entries in conformity with GAAP and all
requirements of law shall be made of all dealings and transactions in relation
to its business and activities. Parent will, and will cause each of its
Subsidiaries to, permit officers and designated representatives of the
Administrative Agent, any Other Agent or any Lender to visit and inspect, during
regular business hours and under guidance of officers of Parent or such
Subsidiary, any of the properties of Parent, or such Subsidiary, and to examine
the books of account of Parent or such Subsidiary and discuss the affairs,
finances and accounts of
-45-
53
Parent or such Subsidiary with, and be advised as to the same by, its and their
officers and independent accountants, all at such reasonable times and intervals
and to such reasonable extent as the Administrative Agent, such Other Agent or
such Lender may request.
8.03 Maintenance of Property; Insurance. Parent will, and will
cause each of its Subsidiaries to, (i) keep all property necessary in its
business in good working order and condition (ordinary wear and tear excepted),
(ii) maintain insurance on all its property in at least such amounts and against
at least such risks as is consistent and in accordance with industry practice
and (iii) furnish to each Lender, upon written request, full information as to
the insurance carried.
8.04 Corporate Franchises. Parent will, and will cause each of
its Subsidiaries to, do or cause to be done, all things necessary to preserve
and keep in full force and effect its existence and its material rights,
franchises, licenses and patents; provided, however, that nothing in this
Section 8.04 shall prevent (i) sales of assets by Parent or any of its
Subsidiaries in accordance with Section 9.02, (ii) the withdrawal by Parent or
any of its Subsidiaries of its qualification as a foreign corporation in any
jurisdiction where such withdrawal could not reasonably be expected to have a
material adverse effect on the business, operations, property, assets,
liabilities or condition (financial or otherwise) of the Borrower or of Parent
and its Subsidiaries taken as a whole, or (iii) any merger, consolidation,
liquidation or dissolution permitted by Section 9.02.
8.05 Compliance with Statutes, etc. Parent will, and will
cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
control), except such noncompliances as could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or of Parent and its Subsidiaries taken
as a whole.
8.06 Compliance with Environmental Laws. Parent will comply,
and will cause each of its Subsidiaries to comply, in all material respects with
all Environmental Laws applicable to the ownership or use of its Real Property
now or hereafter owned or operated by Parent or any of its Subsidiaries except
such noncompliances as could not, individually or in the aggregate, reasonably
be expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of the Borrower or of Parent and its Subsidiaries taken as a whole, will
promptly pay or cause to be paid all costs and expenses incurred in connection
with such compliance, and will keep or cause to be kept all such Real Property
free and clear of any Liens imposed pursuant to such Environmental Laws. Neither
Parent nor any of its Subsidiaries will generate, use, treat, store, release or
dispose of, or permit the generation, use, treatment, storage, release or
disposal of Hazardous Materials on any Real Property now or hereafter owned or
operated by Parent or any of its Subsidiaries, or transport or permit the
transportation of Hazardous Materials to or from any such Real Property except
for Hazardous Materials used or stored at any such Real Properties in material
compliance
-46-
54
with all applicable Environmental Laws and reasonably required in connection
with the operation, use and maintenance of any such Real Property.
8.07 ERISA. As soon as possible and, in any event, within 20
days after Parent or any of its Subsidiaries or any ERISA Affiliate knows or has
reason to know of the occurrence of any of the following, Parent will deliver to
each of the Lenders a certificate of an Authorized Officer of Parent setting
forth details as to such occurrence and the action, if any, that Parent, such
Subsidiary or such ERISA Affiliate is required or proposes to take, together
with any notices required or proposed to be given to or filed with or by Parent,
such Subsidiary, the ERISA Affiliate, the PBGC, or a Plan or Multiemployer Plan
participant or the Plan administrator with respect thereto: that a Reportable
Event has occurred; that an accumulated funding deficiency has been incurred or
an application is likely to be or has been made to the Secretary of the Treasury
for a waiver or modification of the minimum funding standard (including any
required installment payments) or an extension of any amortization period under
Section 412 of the Code with respect to a Plan; that a contribution required to
be made by Parent, its Subsidiaries or any ERISA Affiliate to a Plan or
Multiemployer Plan has not been timely made; that a Plan or Multiemployer Plan
has been or is reasonably expected to be terminated, reorganized, partitioned or
declared insolvent under Title IV of ERISA; that a Plan has an Unfunded Current
Liability giving rise to a lien under ERISA or the Code; that proceedings are
likely to be or have been instituted or notice has been given to terminate or
appoint a trustee to administer a Plan or Multiemployer Plan, that a proceeding
has been instituted pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Plan or a Multiemployer Plan that is reasonably expected to
result in any material liability; that Parent, any of its Subsidiaries or any
ERISA Affiliate will or is reasonably expected to incur any material liability
(including any contingent or secondary liability) to or on account of the
termination of or withdrawal from a Plan or Multiemployer Plan under Section
4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan
under Section 401(a)(29), 4971 or 4975 of the Code or Section 409 or 502(i) or
502(l) of ERISA; or that Parent, or any Subsidiary may incur any material
liability pursuant to any employee welfare benefit plan (as defined in Section
3(1) of ERISA) that provides benefits to retired employees or other former
employees (other than as required by Section 601 of ERISA) or any employee
pension benefit plan (as defined in Section 3(2) of ERISA) in addition to the
liability that existed on the Effective Date pursuant to any such plan or plans.
Upon request the Borrower will deliver to each of the Lenders a complete copy of
the annual report (Form 5500) of each Plan or Multiemployer Plan required to be
filed with the Internal Revenue Service. In addition to any certificates or
notices delivered to the Lenders pursuant to the first sentence hereof, copies
of any adverse material notices received by Parent, or any of its Subsidiaries
or any ERISA Affiliate from a governmental agency with respect to any Plan or
Multiemployer Plan shall be delivered to the Lenders no later than 20 days after
the date such notice has been received by Parent, the Subsidiary or the ERISA
Affiliate, as applicable.
8.08 End of Fiscal Years; Fiscal Quarters. Parent shall cause
(i) each of its Subsidiaries' fiscal years to end on December 31, and (ii) each
of its Subsidiaries' fiscal quarters to end on March 31, June 30, September 30
and December 31.
-47-
55
8.09 Performance of Obligations. Parent will, and will cause
each of its Subsidiaries to, perform all of its obligations under the terms of
each mortgage, indenture, security agreement and other debt instrument by which
it is bound, except such non-performances as could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole or
of Parent and its Subsidiaries taken as a whole.
8.10 Payment of Taxes. Parent will pay and discharge or cause
to be paid and discharged, and will cause each of its Subsidiaries to pay and
discharge, all material taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits, or upon any material properties
belonging to it, in each case on a timely basis, and all lawful claims which, if
unpaid, might become a lien or charge upon any properties of Parent or any of
its Subsidiaries; provided that neither Parent nor any of its Subsidiaries shall
be required to pay any such tax, assessment, charge, levy or claim which is
being contested in good faith and by proper proceedings if it has maintained
adequate reserves with respect thereto in accordance with GAAP.
8.11 Maintenance of Separateness. Parent will, and will cause
each of its Subsidiaries to, satisfy customary corporate formalities including
the holding of regular board of directors' and shareholders' meetings and the
maintenance of corporate records. Neither Parent nor any of its Subsidiaries
shall take any action, or conduct its affairs in a manner, which is likely to
result in the corporate existence of AMFM, Parent, Holdings or any
Non-Controlled Entity being ignored, or in the assets and liabilities of the
Borrower or any of its Subsidiaries being substantively consolidated with those
of AMFM, Parent, Holdings or any Non-Controlled Entity in a bankruptcy,
reorganization or other insolvency proceeding.
8.12 Additional Pledged Security; Further Assurances. (a)
Parent will, and will cause each of its respective Subsidiaries to, grant to the
Collateral Agent security interests in capital stock or other equity interests
at the time of the acquisition thereof to the extent such capital stock or other
equity interests would be required to be pledged under the terms of the Pledge
Agreement.
(b) Parent will, and will cause each of its Subsidiaries to,
at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or
deliver to the Collateral Agent from time to time such vouchers, invoices,
schedules, confirmatory assignments, conveyances, financing statements, transfer
endorsements, powers of attorney, certificates, reports and other assurances or
instruments and take such further steps relating to the Collateral covered by
the Pledge Agreement as the Collateral Agent may reasonably require pursuant to
this Section 8.12.
(c) Parent will cause each Subsidiary established or created
in accordance with Section 9.14 or acquired in accordance with Section 9.02 to
execute and deliver a guaranty of all Obligations and all obligations under
Interest Rate Protection Agreements in substantially the form of the Subsidiary
Guaranty; provided that absent a change in the relevant sections of the
-48-
56
Code or the rules, regulations, rulings, notices or other official
pronouncements issued or promulgated thereunder, no foreign Subsidiary shall be
required to enter into such guaranty.
(d) Each of Parent, Holdings and the Borrower agrees that each
action required above by Section 8.12 shall be completed as soon as possible,
but in no event later than 60 days after such action is requested to be taken by
the Administrative Agent or the Required Lenders.
8.13 Excluded Subsidiaries. By no later than December 31, 1999
or, in the case of Westchester Radio LLC, the Wichita Stations trust and Capstar
Trust, March 31, 2000, Parent will cause each of the Excluded Subsidiaries to
either be (i) merged or consolidated with or into, or be liquidated or dissolved
into, a Subsidiary Guarantor, with such Subsidiary Guarantor as the surviving
corporation, or (ii) otherwise liquidated or dissolved.
SECTION 9. Negative Covenants. Parent, Holdings and the
Borrower covenant and agree that on and after the Effective Date and until the
Total Commitment and all Letters of Credit have terminated and the Loans, Notes
and Unpaid Drawings, together with interest, Fees and all other Obligations
incurred hereunder and thereunder, are paid in full:
9.01 Liens. Parent will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
Parent or any of its Subsidiaries, whether now owned or hereafter acquired, or
sell any such property or assets subject to an understanding or agreement,
contingent or otherwise, to repurchase such property or assets (including sales
of accounts receivable with recourse to Parent or any of its Subsidiaries), or
assign any right to receive income or permit the filing of any financing
statement under the UCC or any other similar notice of Lien under any similar
recording or notice statute; provided that the provisions of this Section 9.01
shall not prevent the creation, incurrence, assumption or existence of the
following (Liens described below are herein referred to as "Permitted Liens"):
(i) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due and payable or Liens for taxes,
assessments or governmental charges or levies being contested in good
faith and by appropriate proceedings for which adequate reserves have
been established in accordance with GAAP;
(ii) Liens in respect of property or assets of the Borrower or
any of its Subsidiaries imposed by law, which were incurred in the
ordinary course of business and do not secure Indebtedness for borrowed
money, such as carriers', warehousemen's, materialmen's and mechanics'
liens and other similar Liens arising in the ordinary course of
business, and (x) which do not in the aggregate materially detract from
the value of the Borrower's or such Subsidiary's property or assets or
materially impair the use thereof in the operation of the business of
the Borrower or such Subsidiary or (y) which are being contested in
good faith by appropriate proceedings, which proceedings have the
effect of preventing the forfeiture or sale of the property or assets
subject to any such Lien;
(iii) Liens in existence on the Initial Borrowing Date which are
listed, and the property subject thereto described, in Schedule VIII,
if any, plus renewals, replacements
-49-
57
and extensions of such Liens; provided that (x) the aggregate principal
amount of the Indebtedness, if any, secured by such Liens does not
increase from that amount outstanding at the time of any such renewal,
replacement or extension and (y) any such renewal, replacement or
extension does not encumber any additional assets or properties of
Parent or any of its Subsidiaries;
(iv) Liens created pursuant to the Pledge Agreement;
(v) licenses, leases or subleases granted to other Persons in a
manner consistent with past practice or the radio industry or other
media industries generally not materially interfering with the conduct
of the business of Parent and its Subsidiaries taken as a whole;
(vi) Liens upon assets subject to Capitalized Lease Obligations
to the extent permitted by Section 9.04, provided that (x) such Liens
only serve to secure the payment of Indebtedness arising under such
Capitalized Lease Obligation and (y) the Lien encumbering the asset
giving rise to the Capitalized Lease Obligation does not encumber any
other asset of either the Borrower or any Subsidiary of the Borrower;
(vii) Liens on equipment or machinery used by the Borrower or any
of its Subsidiaries in the ordinary course of business and incurred at
the time of acquisition thereof by the Borrower or any such Subsidiary
or within 120 days thereafter to secure Indebtedness incurred to pay
all or a portion of the purchase price thereof and all renewals,
replacements or extensions thereof, provided that (x) the aggregate
outstanding principal amount of all Indebtedness secured by Liens
permitted by this clause (vii) shall not at any time exceed $50,000,000
and (y) in all events, the Lien encumbering the equipment or machinery
so acquired does not encumber any other asset of either the Borrower or
any of its Subsidiaries;
(viii) easements, rights-of-way, restrictions (including zoning
restrictions), encroachments, protrusions and other similar charges or
encumbrances, and minor title deficiencies, in each case whether now or
hereafter in existence, not securing Indebtedness and not materially
interfering with the conduct of the business of the Borrower or any of
its Subsidiaries;
(ix) Liens arising from precautionary UCC financing statement
filings regarding operating leases entered into by Parent or any of its
Subsidiaries in the ordinary course of business, provided that such
Lien is limited to the respective lessor's interest in such leased
property;
(x) Liens arising out of the existence of judgments or awards
not constituting an Event of Default under Section 10.09, provided that
no cash or property is deposited or delivered to secure the respective
judgment or award (or any appeal bond in respect thereof, except as
permitted by following clause (xii));
-50-
58
(xi) statutory, contractual and common law landlords' liens
under leases to which the Borrower or any of its Subsidiaries is a
party;
(xii) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory
obligations, surety, stay, customs and appeal bonds, statutory bonds,
bids, leases, government contracts, trade contracts, performance and
return of money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money), provided that the
aggregate amount of deposits at any time pursuant to this clause (xii)
shall not exceed $5,000,000;
(xiii) any interest or title of a lessor, sublessor, licensee or
licensor under any lease or license agreement permitted by this
Agreement;
(xiv) Liens in favor of a banking institution arising as a matter
of law encumbering deposits (including the right of set-off) held by
such banking institutions incurred in the ordinary course of business
and which are within the general parameters customary in the banking
industry;
(xv) deposits made in the ordinary course of business to secure
liabilities for premiums to insurance carriers, provided that such
deposits do not exceed $5,000,000 in the aggregate at any time;
(xvi) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for sale of goods entered into by
the Borrower or any of its Subsidiaries in the ordinary course of
business, in accordance with past practices of the Borrower and its
Subsidiaries;
(xvii) xxxx xxxxxxx money deposits in connection with acquisitions
otherwise permitted by Section 9.02; provided that Parent and its
Subsidiaries shall not make any xxxx xxxxxxx money deposits when there
exists a Default or an Event of Default;
(xviii) Liens on property or assets in existence at the time such
property or assets are acquired (or at the time the outstanding equity
interests of the entity owning such property or assets are acquired)
pursuant to Section 9.02(ix) or (xiii) and renewals, extensions and
replacements thereof; provided that (x) any Indebtedness that is
secured by such Liens is permitted to exist under Section 9.04(viii)(y)
and (y) such Liens are not incurred in connection with, or in
contemplation or anticipation of, such acquisition and do not attach to
any other asset of Parent or any of its Subsidiaries; and
(xix) Liens not otherwise permitted under this Section 9.01 to
the extent attaching to properties and assets with an aggregate fair
market value not in excess of, and securing liabilities not in excess
of, $50,000,000 in the aggregate at any time outstanding.
-51-
59
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc.
Parent will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or merge, consolidate, convey, sell, lease or
otherwise dispose of all or a material part of its property or assets, or enter
into any sale-leaseback transactions, or purchase or otherwise acquire (in one
or a series of related transactions) any part of the property or assets (other
than purchases or other acquisitions of inventory, materials, equipment and
intangible assets, including property acquired by way of trade or barter
agreements, in the ordinary course of business) of any Person, except that:
(i) Capital Expenditures made by the Borrower and its
Subsidiaries shall be permitted to the extent not in violation of
Section 9.07;
(ii) each of the Borrower and its Subsidiaries may in the
ordinary course of business, sell, lease or otherwise dispose of any
assets; provided that the aggregate Net Sale Proceeds of all assets
subject to sales or other dispositions pursuant to this clause (ii)
shall not exceed $30,000,000 in any fiscal year of the Borrower;
(iii) investments may be made to the extent permitted by Section
9.05;
(iv) each of the Borrower and its Subsidiaries may lease (as
lessee) real or personal property in the ordinary course of business
(so long as such lease does not create a Capitalized Lease Obligation
not otherwise permitted by Section 9.04(iv));
(v) each of the Borrower and its Subsidiaries may make sales or
other transfers of airtime, advertising, broadcast time or other medium
of communication in the ordinary course of business and consistent with
past practices;
(vi) each of the Borrower and its Subsidiaries may enter into
licenses or sublicenses of software, trademarks and other intellectual
property and general intangibles and licenses, leases or subleases of
other property which do not materially interfere with the business of
the Borrower or any Subsidiary;
(vii) (x) the Borrower or any Wholly-Owned Subsidiary (other than
an Excluded Subsidiary) of the Borrower may transfer assets to or lease
assets to or acquire or lease assets from the Borrower or any
Wholly-Owned Subsidiary (other than an Excluded Subsidiary) (so long as
the security interests created in favor of the Collateral Agent, as
pledgee, for the benefit of the Secured Creditors under the Pledge
Agreement continue to constitute first priority perfected security
interests in the Pledged Securities described in the Pledge Agreement)
or any Subsidiary (other than an Excluded Subsidiary) of the Borrower
may be merged or consolidated with or into, or be liquidated or
dissolved into, the Borrower or any Wholly-Owned Subsidiary (other than
an Excluded Subsidiary) of the Borrower (so long as the Borrower or
such Wholly-Owned Subsidiary is the surviving corporation) and (y)
Parent or any Subsidiary of Parent may be merged or consolidated with
or into, or be liquidated or dissolved into, Parent or any Wholly-Owned
Subsidiary (other than an Excluded Subsidiary) of Parent (so long as
Parent or such Wholly-Owned Subsidiary of Parent, as the case may be,
is the surviving corporation);
-52-
60
(viii) the sale or other disposition of Media Assets or the equity
interests of entities that own Media Assets of the Borrower shall be
permitted for cash at fair market value (as determined in good faith by
the Borrower) so long as the proceeds thereof are applied in accordance
with Section 4.02(e), provided that (x) no Default or Event of Default
then exists or would arise therefrom and (y) after giving effect
thereto, the Borrower shall be in compliance with the financial
covenants contained in Sections 9.08, 9.09 and 9.10, with such
financial covenants to be calculated on a Pro Forma Basis;
(ix) so long as (x) no Default or Event of Default then exists
or would arise therefrom and (y) the Borrower shall be in compliance
with the financial covenants contained in Sections 9.08, 9.09 and 9.10,
with such financial covenants to be calculated on a Pro Forma Basis,
the Borrower may, and may permit its Subsidiaries to, exchange (for
reasonably equivalent value, a portion thereof which may include cash)
(A) 100% of the capital stock of any Subsidiary of such Person (the
"Stock Swapped Media Asset") for 100% of the capital stock of any
Person (the "Stock Target Media Asset") owning Media Assets (each such
occurrence a "Stock Swap") or (B) all or substantially all of the
assets of a Media Asset or group of Media Assets (the "Asset Swapped
Media Asset," with each Stock Swapped Media Asset and Asset Swapped
Media Asset, a "Swapped Media Asset") for all or substantially all of
the assets of another Media Asset or group of Media Assets (the "Asset
Target Media Asset," with each Stock Target Media Asset and each Asset
Target Media Asset, a "Target Media Asset") (each such occurrence a
"Media Asset Swap"), provided that (i) at the time of such Stock Swap
or Media Asset Swap, the Borrower and/or such Subsidiary, and the newly
acquired entity, shall comply with Section 8.12, (ii) any cash proceeds
received by Borrower or any of its Subsidiaries in connection with any
such Stock Swap or Media Asset Swap shall be applied in accordance with
the requirements of Section 4.02(e) and (iii) the receipt of the Target
Media Asset by the Borrower or such Subsidiary and the transfer from
the Borrower or such Subsidiary to such Person of the Swapped Media
Asset must be completed within 360 calendar days of each other;
(x) the Borrower and its Subsidiaries may sell or discount
accounts receivable arising in the ordinary course of business (x)
which are overdue or (y) which the Borrower may reasonably determine
are difficult to collect, but only in connection with the compromise or
collection thereof consistent with customary industry practice (and not
as part of any bulk sale or financing of receivables);
(xi) transfers of condemned property by the Borrower or any of
its Subsidiaries to the respective governmental authority or agency
that have condemned same (whether by deed in lieu of condemnation or
otherwise), and transfers of properties by the Borrower or any of its
Subsidiaries that have been subject to a casualty to the respective
insurer of such property or its designee as part of an insurance
settlement, so long as the proceeds thereof are applied as required by
Section 4.02(g);
(xii) each of the Borrower and its Subsidiaries may in the
ordinary course of business sell or otherwise dispose of equipment
which, in the reasonable judgment of such
-53-
61
Person, is obsolete, worn out or otherwise no longer useful, in the
conduct of such Person's business;
(xiii) so long as (x) no Default or Event of Default then exists
or would result therefrom and (y) the Borrower shall demonstrate
compliance with the financial covenants contained in Sections 9.08,
9.09 and 9.10, with such financial covenants to be calculated on a Pro
Forma Basis, the Borrower or any of its Wholly-Owned Subsidiaries may
acquire (including by way of merger) additional Media Assets or 100% of
the capital stock of any Person that owns Media Assets (any such
acquisition permitted pursuant to this clause (xiii), a "Permitted
Section 9.02(xiii) Acquisition"), provided that (i) if such acquisition
is structured as a stock acquisition, then either (A) the Person so
acquired becomes a Wholly-Owned Subsidiary (direct or indirect) of the
Borrower or (B) such Person is merged with and into the Borrower or a
Wholly-Owned Subsidiary of the Borrower (with the Borrower or such
Wholly-Owned Subsidiary being the surviving corporation of such
merger), and, in any case, all of the provisions of Section 8.12 have
been complied with in respect of such Person and (ii) any Liens or
Indebtedness assumed or incurred in connection with such acquisition
are otherwise permitted under Section 9.01 or 9.04, as the case may be;
(xiv) the Borrower or any Wholly-Owned Subsidiary of the Borrower
may (i) sell assets or (ii) make a capital contribution by transferring
assets, in each case to any Non-Controlled Entity so long as (x) the
fair market value of all assets so sold or transferred (as determined
in good faith by the Borrower) to all such Non-Controlled Entities does
not exceed $50,000,000, (y) no Default or Event of Default then exists
or would result therefrom and (z) the Borrower or such Wholly-Owned
Subsidiary applies the full amount of the Net Sale Proceeds therefrom
as a mandatory repayment and/or commitment reduction in accordance with
the requirements of Section 4.02(e);
(xv) Xxxxx Stock Dispositions shall be permitted so long as the
Borrower applies the full amount of the net proceeds therefrom in
accordance with the requirements of Section 4.02(e);
(xvi) Parent and its Subsidiaries may make sales or other
transfers or dispositions of assets as required under, and in
accordance with, the express terms of the AMFM/Clear Channel Merger
Agreement; and
(xvii) Parent and its Subsidiaries may declare and pay Dividends
permitted under Section 9.03.
To the extent the Required Lenders waive the provisions of this Section 9.02
with respect to the sale of any Collateral, or any Collateral is sold as
permitted by this Section 9.02 (other than clause (vii) hereof), such Collateral
shall be sold free and clear of the Liens created by the Pledge Agreement, and
the Administrative Agent and Collateral Agent shall be authorized to take any
actions deemed appropriate in order to effect the foregoing.
-54-
62
9.03 Dividends. Parent shall not, and shall not permit any of
its Subsidiaries to, authorize, declare or pay any Dividends with respect to
Parent or any of its Subsidiaries except that:
(i) any Subsidiary of the Borrower may pay Dividends to the
Borrower or any Wholly-Owned Subsidiary of the Borrower so long as any
such Dividends paid by a non-Wholly-Owned Subsidiary of the Borrower
are paid on a pro rata basis to such Subsidiary's shareholders
generally (based on the relative holdings of the equity interest or
interests in the Subsidiary paying such Dividends and taking into
account the relative preferences, if any, of the various classes of
equity interests in such Subsidiary);
(ii) the Borrower may pay cash Dividends to Holdings, Holdings
may pay cash Dividends to Parent and Parent may pay cash Dividends to
AMFM, so long as all proceeds thereof are promptly used by Holdings,
Parent or AMFM, as the case may be, to pay, its operating expenses
incurred in the ordinary course of business and other corporate
overhead costs and expenses (including, without limitation, legal and
accounting expenses and similar expenses);
(iii) the Borrower may pay cash Dividends to Holdings, Holdings
may pay cash Dividends to Parent and Parent may pay cash Dividends to
AMFM, so long as all proceeds thereof are promptly used by Parent,
Holdings or AMFM, as the case may be, to (A) pay management fees or
executive compensation to the extent such management fees or executive
compensation are permitted by Sections 9.06(iv) and (v) and (B)
repurchase AMFM Stock and/or options to purchase AMFM Stock held by (x)
directors, executives, officers, members of management, or employees of
AMFM, Parent, Holdings, the Borrower or any of their respective
Subsidiaries, or (y) other stockholders of AMFM so long as the purpose
of such purchase is to acquire AMFM Stock for reissuance to new
employees of AMFM and its Subsidiaries to the extent so reissued within
12 months of any such purchase;
(iv) the Borrower may pay cash Dividends to Holdings, Holdings
may pay cash Dividends to Parent and Parent may pay cash Dividends to
AMFM, so long as all proceeds thereof are promptly used by AMFM, Parent
or Holdings, as the case may be, to pay, franchise taxes and federal,
state and local income taxes and interest, and penalties with respect
thereto, if any, payable by AMFM, Parent or Holdings, as the case may
be, provided that any refund shall be promptly returned by AMFM, Parent
or Holdings to the Borrower;
(v) the Borrower may pay cash Dividends to Holdings so long as
Holdings promptly uses such proceeds to pay cash Dividends to Parent
and Parent may pay cash Dividends to AMFM to enable AMFM to pay cash
Dividends to redeem fractional shares of AMFM Stock;
(vi) so long as (x) no Default or Event of Default then exists
or would result therefrom and (y) such payment of cash Dividends is
permitted under each indenture relating to subordinated Existing
Indebtedness and any other indenture, certificate of designation
-55-
63
or other agreement which may restrict such payments, the Borrower may
pay cash Dividends to Holdings so long as Holdings promptly uses such
proceeds to pay cash Dividends to Parent to enable Parent to cure
defaults or make principal or interest payments under any
Non-Controlled Entity Credit Facility or to satisfy its obligations
under the Limited Guaranty; provided that the aggregate amount of such
cash Dividends shall not exceed $25,000,000;
(vii) so long as (x) no Default or Event of Default then exists
or would result therefrom, (y) the Borrower establishes compliance with
the financial covenants contained in Sections 9.08, 9.09 and 9.10, with
such financial covenants to be calculated on a Pro Forma Basis and (z)
such payment of cash Dividends is permitted under each indenture
relating to Existing Indebtedness and any other indenture, certificate
of designation or other agreement which may restrict such payments, (A)
the Borrower may complete any or all of the Year 2000 Transactions and
(B) the Borrower may pay cash Dividends to Holdings, Holdings may pay
cash Dividends to Parent and Parent may pay cash Dividends to AMFM, so
long as all proceeds thereof are promptly used by Parent, Holdings or
AMFM, as the case may be, (i) to pay regularly scheduled dividends on
AMFM's 7% Preferred Stock, (ii) to pay regularly scheduled dividends on
Holdings' 12% Senior Exchangeable Preferred Stock or to pay regularly
scheduled payments of interest on Holdings 12% Exchangeable Debentures
(whichever the case may be), and (c) to complete any or all of the Year
2000 Transactions;
(viii) so long as (x) no Default or Event of Default then exists
or would result therefrom and (y) such payment of cash Dividends is
permitted under each indenture relating to Existing Indebtedness and
any other indenture, certificate of designation or other agreement
which may restrict such payments, the Borrower may pay the proceeds of
any Xxxxx Stock Disposition as cash Dividends to Holdings, Holdings may
pay such cash Dividends to Parent and Parent may pay such cash
Dividends to AMFM to enable AMFM to pay cash Dividends to redeem AMFM
Stock;
(ix) so long as (x) no Default or Event of Default then exists
or would result therefrom and such payment of cash Dividends is
permitted under each indenture relating to Existing Indebtedness and
any other indenture, certificate of designation or other agreement
which may restrict such payments, in addition to any other Dividends
permitted under this Section 9.03, the Borrower may pay cash Dividends
(including, without limitation, to Holdings), Holdings may pay cash
Dividends (including, without limitation, to Parent) and Parent may pay
cash Dividends (including, without limitation, to AMFM), in an
aggregate amount during the term of this Agreement not to exceed at any
time during the term of this Agreement the sum of (i) Broadcast Cash
Flow for the period of four fiscal quarters immediately preceding the
proposed payment or measurement date, plus (ii) $200,000,000, plus
(iii) to the extent that such sums have been contributed as equity to
Parent, up to $100,000,000, plus (iv) fifty percent of any amounts
contributed as cash to the capital of Parent and/or any of its
Subsidiaries; provided that any cash Dividend made under and in
compliance with this clause (ix) in any twelve-month period shall not
-56-
64
cause a Default solely as a result of a decrease in Broadcast Cash Flow
during any subsequent twelve-month period; and
(x) (a) Holdings shall be permitted to exchange its 12% Senior
Exchangeable Preferred Stock for Exchange Debentures and (b) the
Borrower shall be permitted to exchange its 12-5/8% Series E
Exchangeable Preferred Stock for a like principal amount of
Indebtedness.
9.04 Indebtedness. Parent will not, and will not permit any of
its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the
other Credit Documents;
(ii) Existing Indebtedness shall be permitted to the extent the
same is listed on Schedule IV, and extensions, replacements,
refinancings or renewals thereof, provided that no such extension,
replacement, refinancing or renewal shall increase the principal amount
thereof;
(iii) Indebtedness under Interest Rate Protection Agreements to
the extent entered into pursuant to Section 9.05;
(iv) Indebtedness evidenced by Capitalized Lease Obligations to
the extent permitted pursuant to Section 9.07;
(v) Indebtedness subject to Liens permitted under Section
9.01(vii);
(vi) Contingent Obligations of the Borrower or any Subsidiary of
the Borrower as a guarantor of the obligations of the lessee under any
lease pursuant to which the Borrower or such Subsidiary is the lessee
so long as such lease is otherwise permitted hereunder;
(vii) intercompany Indebtedness of any Wholly-Owned Subsidiary of
the Borrower owing to the Borrower or any other Wholly-Owned Subsidiary
of the Borrower, or of the Borrower owing to any Wholly-Owned
Subsidiary of the Borrower, to the extent permitted by Section 9.05(x);
(viii) (x) unsecured Indebtedness of the Borrower and its
Subsidiaries owing to the seller in any acquisition permitted pursuant
to Section 9.02(ix) in an aggregate principal amount not to exceed
$50,000,000 at any time outstanding or (y) Indebtedness of the Borrower
and its Subsidiaries assumed in connection with any acquisition of an
asset permitted pursuant to Section 9.02(ix) securing such Indebtedness
in an aggregate principal amount not to exceed $50,000,000 at any time
outstanding, provided that such Indebtedness was not incurred in
connection with, or in anticipation or contemplation of, such
acquisition;
-57-
65
(ix) Contingent Obligations of Parent or any of its Subsidiaries
pursuant to its guaranty of Existing Indebtedness and extensions,
replacements, refinancings and renewals thereof, provided that no such
extension, replacement, refinancing or renewal shall (x) amend, modify
or supplement the subordination provisions, if any, contained in such
guaranty in a manner adverse to interests of the Lenders or (y)
increase the principal amount of such Existing Indebtedness guaranteed
by the original guaranty;
(x) Indebtedness of Parent, Holdings or the Borrower, as the
case may be, arising under the Limited Guaranties in an aggregate
amount not to exceed $50,000,000 (less any payments made in respect of
its obligations under any Limited Guaranty);
(xi) additional Indebtedness of the Borrower and its
Subsidiaries not otherwise permitted under this Section 9.04 not to
exceed $50,000,000 in aggregate principal amount outstanding at any
time;
(xii) Indebtedness of (a) Holdings incurred in connection with
the exchange of its 12% Senior Exchange Preferred Stock for 12%
Exchange Debentures and (b) the Borrower incurred in connection with
the exchange of its 12-5/8% Series E Exchangeable Preferred Stock;
(xiii) renewals, extensions, refinancings or replacements of any
of the Indebtedness described in any of the other clauses of this
Section 9.04 provided that no such renewal, extension, refinancing or
replacement shall increase the principal amount thereof; and
(xiv) Indebtedness of the Borrower and its Subsidiaries which is
subordinate to the Indebtedness of the Credit Parties hereunder
pursuant to subordination provisions approved by the Administrative
Agent (such approval not to be unreasonably withheld).
9.05 Advances, Investments and Loans. Parent will not, and
will not permit any of its Subsidiaries to, directly or indirectly, lend money
or credit or make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, any other Person, or purchase or own a futures contract or
otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract, or hold any
cash or Cash Equivalents, except that the following shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and hold
accounts receivables owing to any of them, if created or acquired in
the ordinary course of business and payable or dischargeable in
accordance with customary terms;
(ii) the Borrower and its Subsidiaries may acquire and hold cash
and Cash Equivalents, provided that during any time that Revolving
Loans of Non-Defaulting Lenders are outstanding, the aggregate amount
of cash and Cash Equivalents permitted to be held by the Borrower and
its Subsidiaries shall not exceed $30,000,000 for any period of fifteen
consecutive days (exclusive of any cash held by the Borrower as
permitted by Section 9.01(xvii));
-58-
66
(iii) the Borrower and its Subsidiaries may make loans and
advances in the ordinary course of business to officers, directors and
employees of Parent and its Subsidiaries so long as the aggregate
principal amount thereof at any time outstanding (determined without
regard to any write-downs or write-offs of such loans and advances)
shall not exceed $30,000,000 (subject to any restrictions contained in
any indenture relating to Existing Indebtedness);
(iv) the Borrower may enter into Interest Rate Protection
Agreements on terms reasonably satisfactory to the Administrative
Agent;
(v) Parent may repurchase Parent Common Stock to the extent
permitted by Section 9.03;
(vi) Parent and any of its Subsidiaries may make investments in
accordance with Section 4.02(j)(B) (including investments necessary to
form Subsidiaries under Section 9.14);
(vii) promissory notes and other similar non-cash consideration
received by the Borrower and its Subsidiaries in connection with
dispositions permitted by Section 9.02 so long as the aggregate
principal amount thereof does not exceed $30,000,000 at any one time
outstanding;
(viii) the Borrower and its Subsidiaries may acquire and own
investments (including debt obligations) received in connection with
the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business;
(ix) investments by the Borrower in any Wholly-Owned Subsidiary
(other than an Excluded Subsidiary);
(x) any Wholly-Owned Subsidiary of the Borrower may make
intercompany loans and advances to the Borrower or any other
Wholly-Owned Subsidiary (other than an Excluded Subsidiary) and the
Borrower may make intercompany loans and advances to any of its
Wholly-Owned Subsidiaries (other than an Excluded Subsidiary), provided
that if such intercompany loans are evidenced by an intercompany
promissory note, such note is pledged by the Borrower or such
Wholly-Owned Subsidiary as Collateral pursuant to the Pledge Agreement;
(xi) investments by the Borrower or any of its Subsidiaries to
the extent permitted by Section 9.07;
(xii) advances, loans and investments made by the Borrower and
its Subsidiaries in existence on the Initial Borrowing Date and set
forth on Schedule IX shall be permitted, without giving effect to any
additions thereto or replacements thereof;
-59-
67
(xiii) guarantees of Indebtedness made by Parent or any of its
Subsidiaries to the extent otherwise permitted by Section 9.04;
(xiv) investments permitted pursuant to Section 9.02;
(xv) in addition to investments permitted by clauses (i) through
(xiv) above and clauses (xvi) through (xix) below of this Section 9.05,
the Borrower and its Subsidiaries may make additional loans, advances
and investments in an aggregate principal amount not to exceed
$30,000,000 at any time outstanding;
(xvi) the Borrower or any Wholly-Owned Subsidiary of the Borrower
may make cash capital contributions to any Non-Controlled Entity so
long as (x) the aggregate amount of all such cash capital contributions
does not exceed $15,000,000 and (y) no Default or Event of Default then
exists or would result therefrom;
(xvii) Parent may make loans and advances to any Non-Controlled
Entity to enable such Non-Controlled Entity to purchase assets from the
Borrower or any Wholly-Owned Subsidiary of the Borrower so long as (v)
no Default or Event of Default then exists or would result therefrom,
(w) the aggregate outstanding principal amount of all loans and
advances made pursuant to this clause (xvii) shall not exceed
$50,000,000 (determined without regard to any write-downs or write-offs
of such loans or advances) at any time, (x) each such loan or advance
shall be evidenced by a Parent Note, (y) each such Parent Note shall be
pledged to the Collateral Agent pursuant to the Pledge Agreement and
(z) any interest payments or any prepayments or repayments of principal
received in respect of any Parent Note shall be immediately contributed
(directly or indirectly) to the capital of the Borrower and the
Borrower shall promptly use such proceeds to repay outstanding
Revolving Loans (without a corresponding reduction to the Total
Revolving Loan Commitment);
(xviii) Parent may make investments in Holdings and Holdings may
make investments in the Borrower; and
(xix) Parent or any of its Subsidiaries may make a loan or loans
to any trustee under a trust agreement relating to an assignment of
Radio Stations and their related assets to a trust in order to comply
with the Communications Act of 1934, as amended, and the rules and
regulations promulgated thereunder, in an aggregate principal amount
not to exceed $10,000,000.
9.06 Transactions with Affiliates. Parent will not, and will
not permit any of its Subsidiaries to enter into any transaction or series of
related transactions with any Affiliate of Parent or any of its Subsidiaries,
other than in the ordinary course of business and on terms and conditions
substantially as favorable to Parent or such Subsidiary as would reasonably be
obtained by Parent or such Subsidiary at that time in a comparable arm's-length
transaction with a Person other than an Affiliate, except that:
(i) Dividends may be paid to the extent provided in Section
9.03;
-60-
68
(ii) loans may be made and other transactions may be entered
into by the Borrower and its Subsidiaries to the extent permitted by
Sections 9.02, 9.04 and 9.05;
(iii) customary fees, indemnification and reimbursement of
expenses may be paid to directors of Parent;
(iv) Parent and its Subsidiaries may enter into and make
payments pursuant to employment arrangements with executive officers
and senior management employees in the ordinary course of business;
(v) Parent and its Subsidiaries may make payments pursuant to
Employment Agreements existing on the Initial Borrowing Date or
thereafter pursuant to Employment Agreements with executive officers
and senior management employees entered into in the ordinary course of
business;
(vi) Parent and its Subsidiaries may make payments pursuant to
the Tax Sharing Agreements;
(vii) Parent may make capital contributions to Holdings and
Holdings may make capital contributions to the Borrower;
(viii) Parent or, to the extent not paid by Parent, Holdings or
the Borrower may pay to Xxxxx, Muse & Co. Partners, L.P., its
Affiliates or any successor thereto controlled by Xxxx X. Xxxxx,
Xxxxxxx X. Xxxx, Xxxxxx X. Xxxxx and/or Xxxx X. Xxxx, expenses incurred
by such Persons pursuant to any Monitoring and Oversight Agreement
between any of Parent, Holdings or the Borrower and any such Person or
Persons in the form delivered to the Lenders on or prior to the Initial
Borrowing Date (each a "Monitoring and Oversight Agreement"), as same
may be modified thereafter but without giving effect to any
modifications thereto which in any way adversely affects the interests
of the Lenders (including, without limitation, by increasing in any
respect the costs or liabilities of Parent or any of its Subsidiaries)
without the consent of the Administrative Agent and the Required
Lenders; and
(ix) the Borrower or any Wholly-Owned Subsidiary of the Borrower
may make capital contributions to (A) a Non-Controlled Entity as
provided in Sections 9.02(xiv) and 9.05(xvi) or (B) any of its
Wholly-Owned Subsidiaries.
9.07 Capital Expenditures. (a) Parent will not, and will not
permit any of its Subsidiaries to, make Capital Expenditures, except that the
Borrower and its Subsidiaries may make Capital Expenditures in any fiscal year
(taken as one accounting period) so long as the amount of such Capital
Expenditures made during such fiscal year does not exceed 4.5% of Parent's gross
revenue for the immediately preceding fiscal year determined on a Pro Forma
Basis after giving effect to any acquisitions and dispositions permitted by this
Agreement.
(b) Notwithstanding anything to the contrary contained in
clause (a) above, to the extent that the Capital Expenditures made by the
Borrower and its Subsidiaries in any period set
-61-
69
forth in clause (a) above are less than the amount permitted to be made in such
period (without giving effect to any additional amount available as a result of
this clause (b) or clause (c) below), the amount of such difference may be
carried forward and used to make Capital Expenditures in the immediately
succeeding fiscal year of the Borrower.
(c) In addition to the Capital Expenditures permitted pursuant
to preceding clauses (a) and (b), the Borrower and its Subsidiaries may make
additional Capital Expenditures consisting of (i) the reinvestment of Net Sale
Proceeds from asset sales not required to be applied to repay Loans pursuant to
Section 4.02(j) and (ii) the reinvestment of insurance proceeds from Recovery
Events not required to be applied to repay Loans pursuant to Section 4.02(j),
provided that in each case any proceeds that are so used to make Capital
Expenditures pursuant to this clause (c) are, to the extent required by Section
4.02(j), used within the period of time as is set forth in such Section 4.02
(j).
9.08 Maximum Leverage Ratio. The Borrower will not permit the
Leverage Ratio at any time during a period set forth below to be greater than
the ratio set forth opposite such period below:
Period Ratio
------ -----
Initial Borrowing Date to 7.00:1.00
June 30, 2000
July 1, 2000 to 7.00:1.00
September 30, 2000
October 1, 2000 to 6.75:1.00
December 31, 2000
January 1, 2001 to 6.50:1.00
March 31, 2001
April 1, 2001 to 6.25:1.00
June 30, 2001
July 1, 2001 to 6.00:1.00
September 30, 2001
October 1, 2001 to 5.50:1.00
Maturity Date
-62-
70
9.09 Interest Coverage Ratio. The Borrower will not permit the
Interest Coverage Ratio for any Test Period ending during a period set forth
below to be less than the ratio set forth opposite such period below:
Period Ratio
------ -----
Initial Borrowing Date to 1.50:1.00
June 30, 2000
July 1, 2000 to 1.75:1.00
September 30, 2000
October 1, 2000 to 1.75:1.00
December 31, 2000
January 1, 2001 to 2.00:1.00
March 31, 2001
April 1, 2001 to 2.00:1.00
June 30, 2001
July 1, 2001 to 2.00:1.00
September 30, 2001
October 1, 2001 to 2.00:1.00
Maturity Date
9.10 Fixed Charge Coverage Ratio. The Borrower will not permit
the Fixed Charge Coverage Ratio for any Test Period ending during a period set
forth below to be less than the ratio set forth opposite such period below:
Period Ratio
------ -----
Initial Borrowing Date to 1.20:1.00
June 30, 2000
July 1, 2000 to 1.20:1.00
September 30, 2000
October 1, 2000 to 1.20:1.00
December 31, 2000
January 1, 2001 to 1.20:1.00
March 31, 2001
April 1, 2001 to 1.20:1.00
June 30, 2001
-63-
71
Period Ratio
------ -----
July 1, 2001 to 1.30:1.00
September 30, 2001
October 1, 2001 to 1.30:1.00
Maturity Date
9.11 Limitation on Certain Restrictions on Subsidiaries.
Parent will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by the Borrower or any Subsidiary
of the Borrower, or pay any Indebtedness owed to the Borrower or any Subsidiary
of the Borrower, (b) make loans or advances to the Borrower or any Subsidiary of
the Borrower or (c) transfer any of its properties or assets to the Borrower or
any Subsidiary of the Borrower, except for such encumbrances or restrictions
existing under or by reason of (i) applicable law, (ii) this Agreement and the
other Credit Documents, (iii) documentation relating to Existing Indebtedness,
(iv) customary provisions restricting subletting or assignment of any lease
governing a leasehold interest of the Borrower or any Subsidiary of the
Borrower, (v) customary provisions restricting assignment of any licensing
agreement entered into by the Borrower or any Subsidiary of the Borrower in the
ordinary course of business, (vi) customary restrictions in any industrial
revenue bond, purchase money financing, capital lease or any other agreement
permitted by this Agreement and (vii) restrictions that exist with respect to
any Subsidiary at the time of the acquisition of such Subsidiary.
9.12 Limitation on Issuance of Capital Stock. (a) Parent will
not issue (i) any preferred stock or (ii) any class of redeemable common stock,
other than (x) Qualified Capital Stock and (y) Permitted Issuances.
(b) Parent will not permit Holdings or any other Subsidiary to
issue any capital stock (including by way of sales of treasury stock) or any
options or warrants to purchase, or securities convertible into, capital stock,
except (i) for transfers and replacements of then outstanding shares of capital
stock, (ii) for stock splits, stock dividends and similar issuances which do not
decrease the percentage ownership of Parent or any of its Subsidiaries in any
class of the capital stock of Holdings or such Subsidiary, (iii) to qualify
directors to the extent required by applicable law, (iv) the Borrower may issue
additional shares of common stock to Holdings, so long as all such shares are
immediately delivered to the Collateral Agent and pledged pursuant to the Pledge
Agreement and (v) in connection with the creation of Subsidiaries of the
Borrower in compliance with Section 9.14.
9.13 Business. Parent will not, and will not permit any of its
Subsidiaries to, engage (directly or indirectly) in any business other than any
business that creates, communicates, licenses, markets, leases or disseminates
ideas, information or entertainment,
-64-
72
together with all businesses related thereto, and any business that generates a
significant portion of its business from advertising.
9.14 Limitation on Creation of Subsidiaries. Parent shall not
and will not permit any Subsidiary to establish, create or acquire any
additional Subsidiaries after the Initial Borrowing Date without the prior
written consent of the Required Lenders, except that the Borrower or any
Wholly-Owned Subsidiary of the Borrower may create or otherwise acquire new
Subsidiaries so long as any such newly created or acquired Subsidiary shall
comply with the requirements of Section 8.12.
SECTION 10. Events of Default. Upon the occurrence of any of
the following specified events (each an "Event of Default"):
10.01 Payments. The Borrower shall (i) default in the payment
when due of any principal of any Loan or any Note or (ii) default, and such
default shall continue unremedied for three or more Business Days, in the
payment when due of any Unpaid Drawings or interest on any Loan or Note, or any
Fees or any other amounts owing hereunder, thereunder or under any other Credit
Document; or
10.02 Representations, etc. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document or in
any certificate delivered pursuant hereto or thereto shall prove to be untrue in
any material respect on the date as of which made or deemed made; or
10.03 Covenants. Parent, Holdings or the Borrower shall (i)
default in the due performance or observance by it of any term, covenant or
agreement contained in Section 8.01(f)(i), 8.08, 8.12, or Section 9 or (ii)
default in the due performance or observance by it of any other term, covenant
or agreement contained in this Agreement (other than as described in Section
10.01, 10.02 or 10.03(i)), and such default shall continue unremedied for a
period of 30 days after written notice to the Borrower by the Administrative
Agent, any Other Agent or any Lender; or
10.04 Default Under Other Agreements. Parent or any of its
Subsidiaries shall (i) default in any payment of any Indebtedness (other than
the Obligations) beyond the period of grace, if any, provided in the instrument
or agreement under which such Indebtedness was created or (ii) default in the
observance or performance of any agreement or condition relating to any
Indebtedness (other than the Obligations) 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 holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause (determined
without regard to whether any notice is required), any such Indebtedness to
become due prior to its stated maturity, or (iii) any Indebtedness (other than
the Obligations) of Parent or any of its Subsidiaries shall be declared to be
due and payable, or required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof, provided that it
shall not be a Default or Event of Default under this Section 10.04 unless the
aggregate
-65-
73
principal amount of all Indebtedness as described in preceding clauses (i)
through (iii), inclusive, is at least $30,000,000; or
10.05 Bankruptcy, etc. Parent or any of its Subsidiaries shall
commence a voluntary case concerning itself under Title 11 of the United States
Code entitled "Bankruptcy," as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is commenced against
Parent or any of its Subsidiaries and the petition is not controverted within 10
days, or is not dismissed within 60 days, after commencement of the case; or a
custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge
of, all or substantially all of the property of Parent or any of its
Subsidiaries, or Parent or any of its Subsidiaries commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to Parent or any of its
Subsidiaries, or there is commenced against Parent or any of its Subsidiaries
any such proceeding which remains undismissed for a period of 60 days, or Parent
or any of its Subsidiaries is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is entered; or
Parent or any of its Subsidiaries suffers any appointment of any custodian or
the like for it or any substantial part of its property to continue undischarged
or unstayed for a period of 60 days; or Parent or any of its Subsidiaries makes
a general assignment for the benefit of creditors; or any corporate action is
taken by Parent or any of its Subsidiaries for the purpose of effecting any of
the foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof or a waiver of such
standard or extension of any amortization period is sought or granted under
Section 412 of the Code, any Plan shall have had or, in the reasonable opinion
of the Required Lenders, is likely to have a trustee appointed to administer
such Plan, any Plan or Multiemployer Plan is, shall have been or is likely to be
terminated or to be the subject of termination proceedings under ERISA, any Plan
shall have an Unfunded Current Liability, a contribution required to be made to
a Plan or Multiemployer Plan has not been made, Parent or any of its
Subsidiaries or any ERISA Affiliate has incurred or is likely to incur a
liability to or on account of a Plan or Multiemployer Plan under Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
Section 401(a)(29), 4971 or 4975 of the Code, or Parent or any of its
Subsidiaries has incurred or is likely to incur liabilities pursuant to one or
more employee welfare benefit plans (as defined in Section 3(1) of ERISA) which
provide benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or employee pension benefit plans (as defined
in Section 3(2) of ERISA); (b) there shall result from any such event or events
the imposition of a lien, the granting of a security interest, or a liability or
a material risk of incurring a liability; and (c) in each case in clauses (a)
and (b) above, such lien, security interest or liability will have a material
adverse effect upon the business, operations, property, assets, liabilities or
condition (financial or otherwise) of Parent and its Subsidiaries taken as a
whole or of Holdings and its Subsidiaries taken as a whole or of the Borrower
and its Subsidiaries taken as a whole; or
10.07 Pledge Agreement. The Pledge Agreement shall cease to be
in full force and effect, or shall cease in any material respect to give the
Collateral Agent for the benefit of the
-66-
74
Secured Creditors the Liens, rights, powers and privileges purported to be
created thereby (including, without limitation, a perfected security interest
in, and Lien on, all of the Collateral), in favor of the Collateral Agent,
superior to and prior to the rights of all third Persons (except as permitted by
Section 9.01), and subject to no other Liens (except as permitted by Section
9.01), or any Credit Party shall default in the due performance or observance of
any term, covenant or agreement on its part to be performed or observed pursuant
to the Pledge Agreement and such default shall continue beyond any grace period
specifically applicable thereto pursuant to the terms of such Pledge Agreement;
or
10.08 Guaranty. Any Guaranty or any provision thereof shall
cease to be in full force or effect as to the relevant Guarantor or other party
thereunder (other than in accordance with the express terms thereof) or any
Guarantor or other party thereunder or Person acting by or on behalf of such
Guarantor or such party shall deny or disaffirm such Guarantor's or such party's
obligations under the relevant Guaranty, or any Guarantor or such party shall
default in the due performance or observance of any term, covenant or agreement
on its part to be performed or observed pursuant to any Guaranty; or
10.09 Judgments. One or more judgments or decrees shall be
entered against Parent or any of its Subsidiaries involving in the aggregate for
Parent and its Subsidiaries a liability (not paid or fully covered by a
reputable and solvent insurance company) and such judgments and decrees either
shall be final and non-appealable or shall not be vacated, discharged or stayed
or bonded pending appeal for any period of 60 consecutive days, and the
aggregate amount of all such judgments exceeds $30,000,000; or
10.10 Change of Ownership. A Change of Ownership shall occur;
or
10.11 Non-Controlled Entity Credit Facility. There shall exist
(i) a default in any payment of principal, interest, fees or other amounts owing
under any Non-Controlled Entity Credit Facility beyond the period of grace, if
any, provided in such Non-Controlled Entity Credit Facility, or (ii) a default
in the observance or performance of any agreement or condition contained in any
Non-Controlled Entity Credit Facility or any other agreement 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 the Indebtedness under
such Non-Controlled Entity Credit Facility to become due prior to its stated
maturity, or (iii) Indebtedness (in excess of $2,500,000) under any
Non-Controlled Entity Credit Facility shall be declared to be due and payable,
or required to be prepaid other than by a regularly scheduled required
prepayment, prior to the stated maturity thereof;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent, upon the written request of
the Required Lenders, shall by written notice to the Borrower, take any or all
of the following actions, without prejudice to the rights of the Administrative
Agent, any Other Agent, any Lender or the holder of any Note to enforce its
claims against any Credit Party (provided that, if an Event of Default specified
in Section 10.05 shall occur with respect to the Borrower, the result which
would occur upon the giving of written notice by the Administrative Agent to the
Borrower as specified in clauses (i)
-67-
75
and (ii) below shall occur automatically without the giving of any such notice):
(i) declare the Total Commitment terminated, whereupon all Commitments of each
Lender shall forthwith terminate immediately and any Commitment Commission shall
forthwith become due and payable without any other notice of any kind; (ii)
declare the principal of and any accrued interest in respect of all Loans and
the Notes and all Obligations owing hereunder (including Unpaid Drawings) and
thereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by each Credit Party; (iii) terminate any Letter of Credit
which may be terminated in accordance with its terms; (iv) direct the Borrower
to pay (and the Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default specified in Section 10.05 with respect to the
Borrower, it will pay) to the Collateral Agent at the Payment Office such
additional amount of cash, to be held as security by the Collateral Agent, as is
equal to the aggregate Stated Amount of all Letters of Credit issued for the
account of the Borrower and then outstanding; (v) enforce, as Collateral Agent,
all of the Liens and security interests created pursuant to the Pledge
Agreement; and (vi) apply any cash or Cash Equivalents held as collateral
pursuant to Section 4.02 in satisfaction of the Obligations.
SECTION 11. Definitions and Accounting Terms.
11.01 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Additional Loans Availability Termination Date" shall mean
December 31, 2000.
"Additional Term Loan" shall have the meaning provided in
Section 1.01(a)(ii).
"Additional Term Loan Assumption Agreement" shall mean and
include each Additional Term Loan Assumption Agreement in the form of Exhibit C
hereto executed in accordance with Section 1.14 hereof.
"Additional Term Loan Assumption Date" shall mean each date
(which in no event shall occur after the Additional Loans Availability
Termination Date) on which one or more Additional Term Loan Assumption
Agreements are delivered to the Administrative Agent pursuant to Section 1.14 of
this Agreement.
"Additional Term Loan Commitment" shall mean, for each Lender,
the amount such Lender may in its sole discretion elect to provide pursuant to
Section 1.14.
"Additional Term Loan Commitment Commission" shall have the
meaning provided in Section 3.01(a)(ii).
"Adjusted Consolidated Indebtedness" shall mean Consolidated
Indebtedness less an amount equal to (x) 50% of the Xxxxx Stock Market Value at
any time when the Xxxxx Stock
-68-
76
shall not be freely transferable by the Borrower and (y) 66-2/3% of the Xxxxx
Stock Market Value at any time when the Xxxxx Stock shall be freely transferable
by the Borrower.
"Adjusted Consolidated Net Income" for any period shall mean
Consolidated Net Income for such period plus, without duplication, the sum of
the amount of all net non-cash charges (including, without limitation,
depreciation, amortization, deferred tax expense and non-cash interest expense,
but excluding any net non-cash charges reflected in Adjusted Consolidated
Working Capital) and net non-cash losses which were included in arriving at
Consolidated Net Income for such period less the sum of the amount of all net
non-cash gains (exclusive of such non-cash items reflected in Adjusted
Consolidated Working Capital) included in arriving at Consolidated Net Income
for such period.
"Adjusted Consolidated Working Capital" at any time shall mean
Consolidated Current Assets (but excluding therefrom all cash and Cash
Equivalents) less Consolidated Current Liabilities.
"Adjusted Leverage Ratio" shall mean, on the date of
determination thereof, the ratio of (x) Adjusted Consolidated Indebtedness on
such date to (y) Consolidated EBITDA for the Test Period then most recently
ended (taken as one accounting period).
"Adjusted RL Percentage" shall mean (x) at a time when no
Lender Default exists, for each Lender, such Lender's RL Percentage and (y) at a
time when a Lender Default exists (i) for each Lender that is a Defaulting
Lender, zero and (ii) for each Lender that is a Non-Defaulting Lender, the
percentage determined by dividing such Lender's Revolving Loan Commitment at
such time by the Adjusted Total Revolving Loan Commitment at such time, it being
understood that all references herein to Revolving Loan Commitments and the
Adjusted Total Revolving Loan Commitment at a time when the Total Revolving Loan
Commitment or Adjusted Total Revolving Loan Commitment, as the case may be, has
been terminated shall be references to the Revolving Loan Commitments or
Adjusted Total Revolving Loan Commitment, as the case may be, in effect
immediately prior to such termination, provided that (A) no Non-Defaulting
Lender's Adjusted RL Percentage shall change upon the occurrence of a Lender
Default from that in effect immediately prior to such Lender Default if after
giving effect to such Lender Default, and any repayment of Revolving Loans at
such time pursuant to Section 4.02(a) or otherwise, the sum of the aggregate
outstanding principal amount of Loans of all Non-Defaulting Lenders plus the
Letter of Credit Outstandings, exceed the Adjusted Total Revolving Loan
Commitment; (B) the changes to the Adjusted RL Percentage that would have become
effective upon the occurrence of a Lender Default but that did not become
effective as a result of the preceding clause (A) shall become effective on the
first date after the occurrence of the relevant Lender Default on which the sum
of the aggregate outstanding principal amount of the Revolving Loans of all
Non-Defaulting Lenders plus the Letter of Credit Outstandings is equal to or
less than the Adjusted Total Revolving Loan Commitment; and (C) if (i) a
Non-Defaulting Lender's Adjusted RL Percentage is changed pursuant to the
preceding clause (B) and (ii) any repayment of such Lender's Loans, or of Unpaid
Drawings with respect to Letters of Credit, that was made during the period
commencing after the date of the relevant Lender Default and ending on the date
of such change to its Adjusted RL Percentage must be returned to the Borrower as
a
-69-
77
preferential or similar payment in any bankruptcy or similar proceeding of the
Borrower, then the change to such Non-Defaulting Lender's Adjusted RL Percentage
effected pursuant to said clause (B) shall be reduced to that positive change,
if any, as would have been made to its Adjusted RL Percentage if (x) such
repayments which had to be returned had not been made and (y) the maximum change
to its Adjusted RL Percentage would have resulted in the sum of the outstanding
principal of Loans made by such Lender plus such Lender's new Adjusted RL
Percentage of the outstanding principal amount of Letter of Credit Outstandings
equaling such Lender's Revolving Loan Commitment at such time.
"Adjusted Total Revolving Loan Commitment" shall mean at any
time the Total Revolving Loan Commitment less the aggregate Revolving Loan
Commitments of all Defaulting Lenders at such time.
"Administrative Agent" shall mean BTCo, in its capacity as
Administrative Agent for the Lenders hereunder, and shall include any successor
to the Administrative Agent appointed pursuant to Section 12.09.
"Affiliate" shall mean, with respect to any Person, any other
Person (including for purposes of Section 9.06 only, all directors, officers and
partners of such Person) directly or indirectly controlling, controlled by, or
under direct or indirect common control with, such Person; provided, however,
that for purposes of Section 9.06, an Affiliate of Parent shall include any
Person that directly or indirectly owns more than 10% of any class of the
capital stock of Parent. A Person shall be deemed to control another Person if
such Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such other Person, whether through
the ownership of voting securities, by contract or otherwise.
"Agents" shall mean the Administrative Agent and the Other
Agents.
"Agreement" shall mean this Credit Agreement, as amended,
modified, extended, renewed, replaced, restated or supplemented from time to
time.
"AMFM" shall mean AMFM, Inc., a Delaware corporation which
holds all of the outstanding shares of Parent on the Effective Date.
"AMFM/Clear Channel Break-Up Fee" shall have the meaning
provided in Section 4.02(b).
"AMFM/Clear Channel Merger" shall mean the merger of AMFM with
and into Clear Channel Communications, Inc. pursuant to the AMFM/Clear Channel
Merger Agreement.
"AMFM/Clear Channel Merger Agreement" shall mean the Agreement
and Plan of Merger dated as of October 2, 1999, by and among Clear Channel
Communications, Inc., a Texas corporation, CCU Merger Sub, Inc., a Delaware
corporation, and AMFM.
-70-
78
"AMFM/Clear Channel Merger Agreement Termination Date" shall
mean the date on which the AMFM/Clear Channel Merger Agreement is terminated
pursuant to the terms thereof.
"AMFM Stock" shall mean the outstanding capital stock of AMFM.
"Applicable Commitment Commission Percentage" shall mean (i)
for the period from the Initial Borrowing Date through but not including the
first Start Date after March 31, 2000, 0.375%, and (ii) from and after any Start
Date to and including the corresponding End Date, a percentage per annum to be
determined according to the Borrower's Adjusted Leverage Ratio for such Test
Period as set forth in the grid contained in the definition of "Applicable
Margin" below.
"Applicable Margin" shall mean a percentage per annum equal to
in the case of Loans maintained as (x) Base Rate Loans, 0.50% and (y) Eurodollar
Loans, 1.50%; provided, that from and after each day of delivery of any
certificate delivered in accordance with the first sentence of the following
paragraph indicating an entitlement to a different margin than that described in
this sentence (each, a "Start Date") to and including the applicable End Date
described below, the Applicable Margin shall be that set forth below opposite
the Adjusted Leverage Ratio indicated to have been achieved in any certificate
delivered in accordance with the following sentence:
Loans Loans
maintained as maintained as Applicable Commitment
Adjusted Leverage Ratio Base Rate Loans Eurodollar Loans Commission Percentage
----------------------- --------------- ---------------- ---------------------
Greater than 6.5:1 1.25% 2.25% 0.50%
Greater than 6.0:1 but
less than or equal to 6.5:1 1.00% 2.00% 0.50%
Greater than 5.5:l but less
than or equal to 6.0:1 0.75% 1.75% 0.375%
Greater than 5.0:1 but less
than or equal to 5.5:1 0.50% 1.50% 0.375%
Greater than 4.5:1 but less
than or equal to 5.0:1 0.25% 1.25% 0.25%
Greater than 4.0:1 but less
than or equal to 4.5:1 0% 1.00% 0.25%
Lesser than 4.0:1 0% 0.875% 0.25%
The Adjusted Leverage Ratio shall be determined based on the delivery of a
certificate of the Borrower by an Authorized Officer of the Borrower to the
Administrative Agent (with a copy to be sent by the Administrative Agent to each
Lender), within 50 days (or, in the case of the last quarter of any fiscal year,
90 days) days of the last day of any fiscal quarter of Borrower, which
certificate shall set forth the calculation of the Adjusted Leverage Ratio as at
the last day of the
-71-
79
Test Period ended immediately prior to the relevant Start Date and the
Applicable Margin which shall be thereafter applicable (until same are changed
or cease to apply in accordance with the following sentences). The Applicable
Margin so determined shall apply, except as set forth in the succeeding
sentence, from the Start Date to the earliest of (x) the date on which the next
certificate is delivered to the Administrative Agent or (y) the date which is 50
days (or, in the case of the last quarter of any fiscal year, 90 days) days
following the last day of the Test Period in which the previous Start Date
occurred (such earliest date, the "End Date"), at which time, if no certificate
has been delivered to the Administrative Agent indicating an entitlement to new
Applicable Margin (and thus commencing a new Start Date), the Applicable Margin
shall be as described in the first sentence of this definition above (without
giving effect to the proviso contained in such sentence) until such certificate
shall have been delivered. Notwithstanding anything to the contrary contained
above in this definition, (w) the Applicable Margin shall be as described in the
first sentence of this definition above (without giving effect to the proviso
contained in such sentence) at all times during which there shall exist any
Default or Event of Default, (x) prior to the first Start Date to occur after
March 31, 2000, the Applicable Margin shall be as described in the first
sentence of this definition (without giving effect to the proviso contained in
such sentence), (y) if the AMFM/Clear Channel Merger Agreement Termination Date
has not occurred prior to the first Start Date to occur after March 31, 2000,
for the period commencing on such Start Date to the AMFM/Clear Channel Merger
Termination Date, the Applicable Margin shall be the lesser of (i) the
Applicable Margin as described in the first sentence of this definition (without
giving effect to the proviso contained in such sentence) and (ii) the Applicable
Margin as set forth in the grid above and (z) following the AMFM/Clear Channel
Merger Agreement Termination Date, the Applicable Margin shall be the greater of
(i) the Applicable Margin as described in the first sentence of this definition
(without giving effect to the proviso contained in such sentence and (ii) the
Applicable Margin as set forth in the grid above.
"Asset Swapped Media Asset" shall have the meaning provided in
Section 9.02(ix).
"Asset Target Media Asset" shall have the meaning provided in
Section 9.02(ix).
"Assignment and Assumption Agreement" shall mean an Assignment
and Assumption Agreement substantially in the form of Exhibit J (appropriately
completed).
"Assuming Lender" shall have the meaning provided in Section
1.14.
"Authorized Officer" of any Credit Party shall mean and
include the Chairman of the Board, the President, the Chief Executive Officer,
any Vice President, the Treasurer, the Secretary, any Assistant Secretary, any
Assistant Treasurer, the Chief Financial Officer or the Controller of such
Credit Party or any other officer of such Credit Party which is designated in
writing to the Administrative Agent and the Issuing Lender by any of the
foregoing officers of such Credit Party as being authorized to give such notices
under this Agreement.
"Bankruptcy Code" shall have the meaning provided in Section
10.05.
-72-
80
"Base Rate" at any time shall mean the higher of (i) 1/2 of 1%
in excess of the Federal Funds Rate and (ii) the Prime Lending Rate.
"Base Rate Loan" shall mean each Loan designated or deemed
designated as such by the Borrower at the time of the incurrence thereof or
conversion thereto.
"Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Borrower's 10 3/4% Senior Subordinated Note Indenture" means
that certain indenture dated as of May 31, 1996, by and between the Borrower and
Chemical Bank, as Trustee.
"Borrower's 10 3/4% Senior Subordinated Notes" shall mean the
Borrower's 10 3/4% Senior Subordinated Notes due 2006, issued pursuant to the
Borrower's 10 3/4% Senior Subordinated Note Indenture.
"Borrower's 10 3/4% Senior Subordinated Notes Indenture
Supplement" shall mean the Fifth Supplemental Indenture, dated as of November
12, 1999, to the Borrower's 10 3/4% Senior Subordinated Note Indenture entered
into by the Borrower and The Chase Manhattan Bank, as trustee, in connection
with the Borrower's 10 3/4% Senior Subordinated Notes Tender Offer/Consent
Solicitation.
"Borrower's 10 3/4% Senior Subordinated Notes Tender
Offer/Consent Solicitation" shall have the meaning provided in Section 5A.05.
"Borrower's 10 3/4% Senior Subordinated Notes Tender
Offer/Consent Solicitation Documents" shall mean the Offer to Purchase and
Consent Solicitation Statement dated September 27, 1999, the Borrower's 10 3/4%
Senior Subordinated Notes Indenture Supplement and the other documents entered
into in connection with the Borrower's 10 3/4% Senior Subordinated Notes Tender
Offer/Consent Solicitation.
"Borrowing" shall mean the borrowing of one Type of Loan from
all the Lenders on a pro rata basis on a given date (or resulting from a
conversion or conversions on such date) having in the case of Eurodollar Loans
the same Interest Period, provided that Base Rate Loans incurred pursuant to
Section 1.10(b) shall be considered part of the related Borrowing of Eurodollar
Loans.
"Broadcast Cash Flow" shall mean, for the Borrower and its
Consolidated Subsidiaries in respect of any period (whether or not a fiscal or
calendar period), Consolidated Net Income (other than gains or losses from the
sale of assets) less the sum of each of the following for such period: (a)
operating expenses (but not including extraordinary losses, fees incurred in
connection with the closing of this Agreement or the consummation of the Mergers
and the Borrower's 10 3/4% Senior Subordinated Notes Tender Offer/Consent
Solicitation), depreciation, amortization, and all other non-cash expenses, and
(b) extraordinary income (to the extent included in Consolidated Net Income).
-73-
81
"BTCo" shall mean Bankers Trust Company in its individual
capacity.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day except Saturday, Sunday and any day which
shall be in New York City a legal holiday or a day on which banking institutions
are authorized or required by law or other government action to close and (ii)
with respect to all notices and determinations in connection with, and payments
of principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (i) above and which is also a day for trading by and between
banks in the New York interbank Eurodollar market.
"Calculation Period" shall mean the Test Period most recently
ended on or prior to the date that any determination is required to be made
hereunder on a Pro Forma Basis.
"Capital Expenditures" shall mean, with respect to any Person,
all expenditures (excluding barter transactions effected in the ordinary course
of business consistent with past practices) by such Person which should be
capitalized in accordance with GAAP, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance and repairs which should be capitalized in accordance with GAAP)
and the amount of Capitalized Lease Obligations incurred by such Person.
"Capitalized Lease Obligations" of any Person shall mean all
rental obligations which, under GAAP, are or will be required to be capitalized
on the books of such Person, in each case taken at the amount thereof accounted
for as indebtedness in accordance with GAAP.
"Cash Equivalents" shall mean, as to any Person, (i)
securities issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (provided that the full faith
and credit of the United States is pledged in support thereof) having maturities
of not more than one year from the date of acquisition, (ii) time deposits and
certificates of deposit of any commercial bank having, or which is the principal
banking subsidiary of a bank holding company organized under the laws of the
United States, any State thereof, the District of Columbia or any foreign
jurisdiction having capital, surplus and undivided profits aggregating in excess
of $200,000,000, with maturities of not more than one year from the date of
acquisition by such Person, (iii) repurchase obligations with a term of not more
than 90 days for underlying securities of the types described in clause (i)
above entered into with any bank meeting the qualifications specified in clause
(ii) above, (iv) commercial paper issued by any Person incorporated in the
United States rated at least A-1 or the equivalent thereof by Standard & Poor's
Ratings Group, a Division of the McGraw Hill Companies, or at least P-1 or the
equivalent thereof by Xxxxx'x Investors Service, Inc. and in each case maturing
not more than one year after the date of acquisition by such Person, (v)
investments in money market funds substantially all of whose assets are
comprised of securities of the types described in clauses (i) through (iv) above
and (vi) demand deposit accounts maintained in the ordinary course of business.
"CBC Merger" shall mean the merger of Capstar Broadcasting
Corporation with and into Chancellor Mezzanine Holdings Corporation, pursuant to
the CBC Merger Agreement.
-74-
82
"CBC Merger Agreement" shall mean the Agreement and Plan of
Merger dated as of November 19, 1999, by and between Capstar Broadcasting
Corporation and Chancellor Mezzanine Holdings Corporation.
"CCI" shall mean Capstar Communications, Inc. (f/k/a SFX
Broadcasting, Inc.), a Delaware corporation.
"CCI Merger" shall mean the merger of each of Chancellor Media
Corporation of Los Angeles, Capstar Radio Broadcasting Partners, Inc. and SBI
Holding Corporation with and into Capstar Communications, Inc., pursuant to the
CCI Merger Agreement.
"CCI Merger Agreement" shall mean the Agreement and Plan of
Merger dated as of November 19, 1999, by and between CCI, CRBP, Chancellor Media
Corporation of Los Angeles and SBI Holding Corporation.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. Section 9601 et seq.
"Change of Ownership" shall mean (i) Parent shall cease to own
beneficially 100% of the Voting Stock (other than Holdings' 12% Senior
Exchangeable Preferred Stock) of Holdings; (ii) Holdings shall cease to own
beneficially 100% of the Voting Stock of Xxxx Media Group, Inc., (iii) Holdings
and Xxxx Media Group, Inc., collectively, shall cease to own beneficially 100%
of the voting Stock of the Borrower (other than the Borrower's 12-5/8% Series E
Exchangeable Preferred Stock); (iv) if the HM Group 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 AMFM,
provided that the occurrence of the foregoing event shall not be deemed a
"Change of Ownership" if (1) no "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), excluding the HM Group, shall
become the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the
Exchange Act), directly or indirectly, of more than the greater of (x) 15% of
the then outstanding Voting Stock of Parent and (y) the percentage of the then
outstanding Voting Stock of AMFM owned by the HM Group and (2) the board of
directors of AMFM shall consist of a majority of Continuing Directors; (v) the
AMFM/Clear Channel Merger shall have been consummated or (vi) a "Change of
Control" under and as defined in any of the agreements governing Indebtedness
with an outstanding principal amount in excess of $100,000,000 of AMFM or Parent
and its Subsidiaries.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder. Section references to the Code are to the Code, as in effect
at the Effective Date, and to any subsequent provision of the Code, amendatory
thereof, supplemental thereto or substituted therefor.
"Co-Lead Arrangers" shall mean each of Deutsche Bank
Securities Inc. and Chase Securities Inc.
-75-
83
"Collateral" shall mean all property (whether real or
personal) with respect to which any security interests have been granted (or
purported to be granted) pursuant to the Pledge Agreement.
"Collateral Agent" shall mean the Administrative Agent acting
as collateral agent for the Secured Creditors pursuant to the Pledge Agreement.
"Commitment" shall mean any of the commitments of any Lender,
i.e., whether an Initial Term Loan Commitment, Additional Term Loan Commitment
or Revolving Loan Commitment.
"Commitment Commission" shall have the meaning provided in
Section 3.01(a)(ii).
"Communications Act" shall have the meaning provided in
Section 7.23.
"Company" shall mean any corporation, limited liability
company, partnership or other business entity (or the adjectival form thereof,
where appropriate).
"Consolidated Capital Expenditures" shall mean, for any
period, the aggregate amount of Capital Expenditures made by the Borrower and
its Consolidated Subsidiaries during such period.
"Consolidated Current Assets" shall mean, at any time, the
consolidated current assets of the Borrower and its Consolidated Subsidiaries
determined on a consolidated basis in accordance with GAAP plus the Total
Unutilized Revolving Loan Commitment at such time.
"Consolidated Current Liabilities" shall mean, at any time,
the consolidated current liabilities of the Borrower and its Consolidated
Subsidiaries determined on a consolidated basis in accordance with GAAP at such
time, but excluding (i) the current portion of any Indebtedness under this
Agreement and any other long-term Indebtedness which would otherwise be included
therein, (ii) accrued but unpaid interest with respect to the Indebtedness
described in clause (i), and (iii) the current portion of Capitalized Lease
Obligations.
"Consolidated EBIT" shall mean, for any period, the
Consolidated Net Income of the Borrower and its Consolidated Subsidiaries
determined on a consolidated basis in accordance with GAAP, before Consolidated
Net Interest Expense and provision for taxes and without giving effect to any
extraordinary or non-recurring gains or losses or gains or losses from sales of
assets other than inventory sold in the ordinary course of business.
"Consolidated EBITDA" shall mean, for any period, Consolidated
EBIT for such period, (I) plus, without duplication and to the extent deducted
from Consolidated EBIT for such period, the sum of (a) depreciation and
amortization expense, (b) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, (c) non-cash charges in respect of
pension and retiree benefits, (d) the amount resulting from Cost Savings
Measures and (e) any other non-cash charges, and (II) minus the total
consolidated cash interest income for such
-76-
84
period; provided that when determining the Leverage Ratio and the Interest
Coverage Ratio, Consolidated EBITDA for any Test Period during which an
acquisition or disposition permitted by this Agreement is consummated shall be
determined on a Pro Forma Basis as if such acquisition or disposition was
consummated on the first day of such Test Period.
"Consolidated Fixed Charges" shall mean, for any period, the
sum of, without duplication, (i) Consolidated Net Cash Interest Expense for such
period, (ii) the amount of all cash Consolidated Capital Expenditures for such
period (other than (x) Consolidated Capital Expenditures constituting
Capitalized Lease Obligations and (y) Excluded Capital Expenditures) and (iii)
the scheduled principal amount of all amortization payments on all Indebtedness
(excluding payments pursuant to a revolving credit facility or an over-draft
facility as a result of the occurrence of the scheduled termination date
thereunder) of the Borrower and its Subsidiaries for such period (as determined
on the first day of the respective period).
"Consolidated Indebtedness" shall mean, at any time, the sum
of the aggregate outstanding principal amount of all Indebtedness for borrowed
money, and the principal component of Capitalized Lease Obligations of the
Borrower and its Consolidated Subsidiaries determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Cash Interest Expense" shall mean, for any
period, the total consolidated cash interest expense of the Borrower and its
Consolidated Subsidiaries determined on a consolidated basis in accordance with
GAAP for such period plus, without duplication, that portion of Capitalized
Lease Obligations of the Borrower and its Consolidated Subsidiaries representing
the interest factor for such period, net of the total consolidated cash interest
income of the Borrower and its Consolidated Subsidiaries for such period.
"Consolidated Net Income" shall mean, for any period, net
after tax income of the Borrower and its Consolidated Subsidiaries determined on
a consolidated basis in accordance with GAAP, minus the amount of Dividends paid
by the Borrower in accordance with Section 9.03(ii); provided that any non-cash
expenses attributable to grants or exercises of employee stock options shall not
be included in the determination of Consolidated Net Income.
"Consolidated Net Interest Expense" shall mean, for any
period, the total consolidated interest expense of the Borrower and its
Consolidated Subsidiaries determined on a consolidated basis in accordance with
GAAP for such period (calculated without regard to any limitations on the
payment thereof) plus, without duplication, that portion of Capitalized Lease
Obligations of the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis in accordance with GAAP representing the interest factor for
such period in each case net of the total consolidated cash interest income of
the Borrower and its Consolidated Subsidiaries for such period, but excluding
the amortization of any deferred financing costs incurred in connection with
this Agreement.
"Consolidated Subsidiaries" shall mean, as to any Person, all
Subsidiaries of such Person which are consolidated with such Person for
financial reporting purposes in accordance with GAAP.
-77-
85
"Contingent Obligation" shall mean, as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (x) for the purchase or payment of any such primary obligation or
(y) 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 holder of such primary obligation against loss in respect thereof;
provided, however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made (or, if less, the maximum
amount of such primary obligation for which such Person may be liable pursuant
to the terms of the instrument evidencing such Contingent Obligation) or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as determined
by such Person in good faith.
"Continuing Directors" shall mean the directors of Parent on
the Initial Borrowing Date and each other director, if such director's
nomination for election to the Board of Directors of Parent is recommended by a
majority of the then Continuing Directors or any other nominee of the HM Group.
"Cost Savings Measures" shall mean, in connection with the
acquisition of any asset (including the capital stock of any Subsidiary), cost
savings resulting from employee terminations, facilities consolidations and
closings, standardization of employee benefits and compensation practices,
consolidation of property, casualty and other insurance coverage and policies,
standardization of sales representation commissions and other contract rates,
and reductions in taxes other than income taxes, which cost savings the Borrower
reasonably believes in good faith would have been achieved during the Test
Period as a result of such asset acquisitions (regardless of whether such cost
savings could then be reflected in pro forma financial statements under GAAP),
provided that both (A) such cost savings and cost savings measures were
identified and such cost savings were quantified in an officers' certificate
delivered to the Administrative Agent at the time of the consummation of the
asset acquisition and (B) with respect to each asset acquisition completed prior
to the 90th day preceding such date of determination, actions were commenced or
initiated by the Borrower or its Subsidiaries within 90 days of such asset
acquisition to effect the cost savings measures identified in such officers'
certificate (regardless, however, of whether the corresponding cost savings were
ultimately achieved).
"CRBP" shall mean Capstar Radio Broadcasting Partners, Inc.
"Credit Documents" shall mean this Agreement and, after the
execution and delivery thereof pursuant to the terms of this Agreement, each
Note, each Additional Term Loan
-78-
86
Assumption Agreement, the Pledge Agreement and the Subsidiary Guaranty, each as
amended from time to time.
"Credit Event" shall mean the making of any Loan (but shall
not include conversions or continuations of existing Loans) or the issuance of
any Letter of Credit.
"Credit Party" shall mean each Parent Guarantor, the Borrower
and each Subsidiary Guarantor.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to
which a Lender Default is in effect.
"Disqualified Capital Stock" shall mean any capital stock
that, by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable), or upon the happening of any event (i) matures
(excluding any maturity as the result of an optional redemption by the issuer
thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof, in whole or in
part, on or prior to the first anniversary of the Maturity Date, or (ii) is
convertible into or exchangeable (unless at the sole option of the issuer
thereof) for (a) debt securities or (b) any capital stock referred to in (i)
above, in each case at any time prior to the first anniversary of the Maturity
Date.
"Dividend" with respect to any Person shall mean that such
Person has declared or paid a dividend or returned any equity capital to its
stockholders or authorized or made any other distribution, payment or delivery
of property (other than common stock of such Person) or cash to its stockholders
as such, or redeemed, retired, purchased or otherwise acquired, directly or
indirectly, for consideration any shares of any class of its capital stock
outstanding on or after the Initial Borrowing Date (or any options or warrants
issued by such Person with respect to its capital stock), or set aside any funds
for any of the foregoing purposes, or shall have permitted any of its
Subsidiaries to purchase or otherwise acquire for consideration any shares of
any class of the capital stock of such Person outstanding on or after the
Initial Borrowing Date (or any options or warrants issued by such Person with
respect to its capital stock).
"Documentation Agents" shall mean each of Bank of America,
N.A. and Toronto Dominion (Texas), Inc., in their capacity as Documentation
Agents hereunder.
"Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States.
"Drawing" shall have the meaning provided in Section 2.04(b).
"EBIT" shall mean, for any period, net after tax income of any
Person before Net Interest Expense and provision for taxes and without giving
effect to any extraordinary gains or
-79-
87
losses or gains or losses from sales of assets other than inventory sold in the
ordinary course of business.
"EBITDA" shall mean, for any period, EBIT, adjusted by adding
thereto the amount of all amortization of intangibles and depreciation that were
deducted in arriving at EBIT for such period.
"Effective Date" shall have the meaning provided in Section
13.10.
"Eligible Transferee" shall mean and include a commercial
bank, financial institution, any fund that invests in bank loans or any
institutional "accredited investor" (as defined in Regulation D of the
Securities Act).
"Employment Agreements" shall have the meaning provided in
Section 5A.04.
"End Date" shall have the meaning provided in the definition
of "Applicable Margin."
"Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereafter, "Claims"),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the environment due
to the presence of Hazardous Materials.
"Environmental Law" means any Federal, state, foreign or local
statute, law, rule, regulation, ordinance, code, guideline, written policy and
rule of common law now or hereafter in effect and in each case as amended, and
any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the environment,
employee health and safety or Hazardous Materials, including, without
limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33 U.S.C.
Section 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601
et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Safe Drinking
Water Act, 42 U.S.C. Section 3803 et seq.; the Oil Pollution Act of 1990, 33
U.S.C. Section 2701 et seq.; the Emergency Planning and the Community
Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the Hazardous
Material Transportation Act, 49 U.S.C. Section 1801 et seq.; the Occupational
Safety and Health Act, 29 U.S.C. Section 651 et seq.; and any state and local or
foreign counterparts or equivalents, in each case as amended from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect at the Effective Date and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
-80-
88
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which together with Parent or any Subsidiary of Parent
would be deemed to be a "single employer" within the meaning of Section 414(b),
(c), (m) or (o) of the Code.
"Eurodollar Loan" shall mean each Loan designated as such by
the Borrower at the time of the incurrence thereof or conversion thereto.
"Eurodollar Rate" shall mean the offered quotation to
first-class banks in the New York interbank Eurodollar market by BTCo for Dollar
deposits of amounts in immediately available funds comparable to the outstanding
principal amount of the Eurodollar Loan of BTCo with maturities comparable to
the Interest Period applicable to such Eurodollar Loan commencing two Business
Days thereafter as of 10:00 A.M. (New York time) on the date which is two
Business Days prior to the commencement of such Interest Period, divided (and
rounded upward to the nearest 1/16 of 1%) by a percentage equal to 100% minus
the then stated maximum rate of all reserve requirements (including, without
limitation, any marginal, emergency, supplemental, special or other reserves
required by applicable law) applicable to any member bank of the Federal Reserve
System in respect of Eurocurrency funding or liabilities as defined in
Regulation D (or any successor category of liabilities under Regulation D).
"Event of Default" shall have the meaning provided in Section
10.
"Excess Cash Flow" shall mean, for any period, the remainder
of (a) the sum of (i) Adjusted Consolidated Net Income for such period and (ii)
the decrease, if any, in Adjusted Consolidated Working Capital from the first
day to the last day of such period, minus (b) the sum of (i) the amount of
Capital Expenditures made by the Borrower and its Subsidiaries on a consolidated
basis during such period in accordance with Sections 9.07(a) and (b), except to
the extent financed with the proceeds of Indebtedness or pursuant to Capitalized
Lease Obligations, (ii) the aggregate amount of permanent principal payments of
Indebtedness for borrowed money of the Borrower and the permanent repayment of
the principal component of Capitalized Lease Obligations of the Borrower and its
Subsidiaries (excluding (1) payments with proceeds of issuances of Indebtedness
or equity or with proceeds of asset sales or insurance recovery and condemnation
events and (2) payments of Loans or other Obligations, provided that repayments
of Loans shall be deducted in determining Excess Cash Flow if such repayments
were made as a voluntary prepayment pursuant to Section 4.01 with internally
generated funds (but in the case of a voluntary prepayment of Revolving Loans,
only to the extent accompanied by a voluntary reduction to the Total Revolving
Loan Commitment)) during such period, (iii) the increase, if any, in Adjusted
Consolidated Working Capital from the first day to the last day of such period
and (iv) the amount of all expenses (including expenses incurred in connection
with acquisitions) that have been paid during such period to the extent that
such expenses have been capitalized in accordance with GAAP but only to the
extent that the payment thereof does not otherwise reduce Adjusted Consolidated
Net Income.
"Excess Cash Payment Date" shall mean the date occurring 90
days after the last day of each fiscal year of the Borrower (beginning with its
fiscal year ending December 31, 2000).
-81-
89
"Excess Cash Payment Period" shall mean with respect to the
repayment required on each Excess Cash Payment Date, the immediately preceding
fiscal year of the Borrower.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Excluded Capital Expenditures" shall mean Capital
Expenditures made under Section 9.07(c).
"Excluded Subsidiary" shall mean each Subsidiary of Parent
which is not a Subsidiary Guarantor.
"Existing Capstar Credit Agreement" shall mean the Credit
Agreement, dated as of May 29, 1998 (as amended through the date hereof), among
Holdings, CRBP, Capstar Broadcasting Corporation, various banks, NationsBanc
Xxxxxxxxxx Securities LLC, as Syndication Agent, Salomon Brothers Holding
Company, Inc. and Xxxxxxx Xxxxx Credit Partners L.P., as Documentation Agents,
and Bankers Trust Company, as Administrative Agent.
"Existing Chancellor Credit Agreement" shall mean the Second
Amended and Restated Loan Agreement, dated as of April 25, 1997 (as amended
through the date hereof), among Chancellor Media Corporation of Los Angeles,
various lenders from time to time party thereto, Toronto Dominion (Texas), Inc.,
Bankers Trust Company, The Bank of New York, NationsBank of Texas, N.A. and
Union Bank of California, as Managing Agents, TD Securities (USA) Inc., as
Arranging Agent and Toronto Dominion (Texas), Inc., as Administrative Agent.
"Existing Credit Facilities" shall mean the Existing Capstar
Credit Agreement and the Existing Chancellor Credit Agreement.
"Existing Indebtedness" shall have the meaning provided in
Section 5A.07(c).
"Existing Letter of Credit" shall have the meaning provided in
Section 2.01(d).
"Facing Fee" shall have the meaning provided in Section
3.01(c).
"FCC" shall mean the Federal Communications Commission, or any
successor thereto.
"FCC Authorizations" shall have the meaning provided in
Section 7.23.
"Federal Funds Rate" shall mean for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
-82-
90
"Fees" shall mean all amounts payable pursuant to or referred
to in Section 3.01.
"Fixed Charge Coverage Ratio" shall mean, for any Test Period,
the ratio of Consolidated EBITDA to Consolidated Fixed Charges for such Test
Period. All calculations of the Fixed Charge Coverage Ratio shall be made on a
Pro Forma Basis, with determinations of the Fixed Charge Coverage Ratio to give
effect to all adjustments contained in the definition of "Pro Forma Basis"
contained herein.
"GAAP" shall have the meaning provided in Section 13.07(a).
"Guaranteed Obligations" shall mean all obligations of the
Borrower (i) to each Lender for the full and prompt payment when due (whether at
the stated maturity, by acceleration or otherwise) of the principal and interest
on each Note issued by the Borrower to such Lender, and Loans made, under the
Credit Agreement and all reimbursement obligations and Unpaid Drawings with
respect to Letters of Credit, together with all the other obligations and
liabilities (including, without limitation, indemnities, fees and interest
thereon) of the Borrower to such Lender now existing or hereafter incurred
under, arising out of or in connection with the Credit Agreement or any other
Credit Document and the due performance and compliance with all the terms,
conditions and agreements contained in the Credit Documents by the Borrower and
(ii) to each Lender and each Affiliate of a Lender which enters into an Interest
Rate Protection Agreement with the Borrower, which by its express terms provides
that such parties are entitled to the benefit of the Parents Guaranty pursuant
to Section 14 with the written consent of the Borrower, the full and prompt
payment when due (whether by acceleration or otherwise) of all obligations of
the Borrower owing under any such Interest Rate Protection Agreement, whether
now in existence or hereafter arising, and the due performance and compliance
with all terms, conditions and agreements contained therein.
"Guarantor" shall mean and include each Parent Guarantor and
each Subsidiary Guarantor.
"Guaranty" shall mean and include each of the Parents
Guaranty, the Subsidiary Guaranty, and any guaranty executed pursuant to Section
8.12.
"Hazardous Materials" means (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; (b) any chemicals, materials or substances defined as or included in
the definition of "hazardous substances," "hazardous waste," "hazardous
materials," "extremely hazardous substances," "restricted hazardous waste,"
"toxic substances," "toxic pollutants," "contaminants," or "pollutants," or
words of similar import, under any applicable Environmental Law; and (c) any
other chemical, material or substance, exposure to which is prohibited, limited
or regulated by any governmental authority.
"HM Group" shall mean, collectively, (i) Hicks, Muse, Xxxx &
Xxxxx Incorporated and its Affiliates taken as a whole, (ii) so long as Hicks,
Muse, Xxxx & Xxxxx Incorporated and its Affiliates taken as a whole possess sole
voting right with respect to the Voting Stock held by
-83-
91
each such Person, such individuals who are or were employees, officers,
directors or partners of Hicks, Muse, Xxxx & Xxxxx Incorporated or such
Affiliate and the family members of such individuals or trusts created for the
sole benefit of such family members and (iii) so long as Hicks, Muse, Xxxx &
Xxxxx Incorporated and its Affiliates taken as a whole possess sole voting right
with respect to the Voting Stock of Parent held by each such Person, any Person
not otherwise described by clause (i) and (ii) above, provided that the
aggregate number of shares held by all such Persons in accordance with this
clause (iii) at any time shall not exceed 3% of the aggregate number of shares
held by the Persons described in clause (i) and (ii) above at such time.
"Holdings" shall have the meaning provided in the first
paragraph of this Agreement.
"Indebtedness" shall mean, as to any Person, without
duplication, (i) all indebtedness (including principal, interest, fees and
charges) of such Person for borrowed money or for the deferred purchase price of
property or services due more than 90 days after acquisition of the property or
receipt of services or which is otherwise represented by a note, (ii) the
maximum amount available to be drawn under all letters of credit issued for the
account of such Person and all unpaid drawings in respect of such letters of
credit, (iii) all Indebtedness of the types described in clause (i), (ii), (iv),
(v) or (vi) of this definition secured by any Lien on any property owned by such
Person, whether or not such Indebtedness has been assumed by such Person (to the
extent of the lesser of the amount of such Indebtedness and the value of the
respective property), (iv) Capitalized Lease Obligations, (v) all Contingent
Obligations of such Person and (vi) all obligations under any Interest Rate
Protection Agreement or under any similar type of agreement; provided that
Indebtedness shall not include trade payables and accrued expenses, in each case
arising in the ordinary course of business.
"Indebtedness to be Refinanced" shall have the meaning
provided in Section 7.26(b).
"Initial Borrowing Date" shall mean the date occurring on or
after the Effective Date on which the initial Borrowing of Loans occurs.
"Initial Term Loan" shall have the meaning provided in Section
1.01(a)(i).
"Initial Term Loan Commitment" shall mean, for each Lender,
the amount set forth opposite such Lender's name in Schedule I hereto directly
below the column entitled "Initial Term Loan Commitment," as the same may be (x)
reduced from time to time pursuant to Sections 3.03, 4.02 and/or 10 or (y)
adjusted from time to time as a result of assignments to or from such Lender
pursuant to Section 1.13 or 13.04(b).
"Interest Coverage Ratio" shall mean, on the date of
determination thereof, the ratio of (x) Consolidated EBITDA for the Test Period
then most recently ended (taken as one accounting period) to (y) Consolidated
Net Cash Interest Expense for the Test Period then most recently ended (taken as
one accounting period).
-84-
92
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section
1.09.
"Interest Rate Protection Agreement" shall mean any interest
rate swap agreement, interest rate cap agreement, interest collar agreement,
interest rate hedging agreement or other similar agreement or arrangement.
"Issuing Lender" shall mean, BTCo and/or any of its affiliates
(including in any event Deutsche Bank AG, New York Branch), Toronto Dominion
(Texas), Inc. and any other Lender which at the request of the Borrower and with
the consent of the Administrative Agent agrees, in such Lender's sole
discretion, to become an Issuing Lender for the purpose of issuing Letters of
Credit pursuant to Section 2. The sole Issuing Lender on the Effective Date
shall be BTCo.
"Xxxxx Stock" shall have the meaning provided in Section
5A.09.
"Xxxxx Stock Dispositions" shall mean any sale by the Borrower
of the Xxxxx Stock in accordance with Section 9.02(xv).
"Xxxxx Stock Market Value" shall mean the value of the
aggregate amount of Xxxxx Stock owned by the Borrower at the time of
determination based on the lesser of (x) the closing market price of the Xxxxx
Stock as quoted on NASDAQ on the date immediately preceding the date of
determination and (y) $ 46.0625 per share.
"L/C Supportable Obligations" shall mean obligations of Parent
or any of its Subsidiaries as are consistent with the policies of the respective
Issuing Lender and otherwise permitted to exist pursuant to the terms of this
Agreement, which shall include the posting of Letters of Credit to provide
assurance of performance in connection with acquisitions otherwise permitted by
Section 9.02.
"Leaseholds" of any Person means all the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Lender" shall mean each financial institution listed on
Schedule I, as well as any Person which becomes a "Lender" hereunder pursuant to
Sections 1.13 and 13.04(b).
"Lender Default" shall mean (i) the refusal (which has not
been retracted) of a Lender to make available its portion of any Borrowing or to
fund its portion of any unreimbursed payment under Section 2.03(c) or (ii) a
Lender having notified in writing the Borrower and/or the Administrative Agent
that it does not intend to comply with its obligations under Sections 1.01, 1.04
or 2.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
-85-
93
"Letter of Credit Fee" shall have the meaning provided in
Section 3.01(b).
"Letter of Credit Outstandings" shall mean, at any time, the
sum of, without duplication, (i) the aggregate Stated Amount of all outstanding
Letters of Credit and (ii) the amount of, without duplication, all Unpaid
Drawings in respect of all Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in
Section 2.02(a).
"Leverage Ratio" shall mean, on the date of determination
thereof, the ratio of (x) Consolidated Indebtedness on such date to (y)
Consolidated EBITDA for the Test Period then most recently ended (taken as one
accounting period).
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Limited Guaranty" shall mean a limited, unsecured and
unconditional guaranty provided by Parent, Holdings or the Borrower, as the case
may be, of the obligations and liabilities of any Non-Controlled Entity under
its Non-Controlled Entity Credit Facility, which guaranty shall be in form and
substance satisfactory to the Administrative Agent.
"Loan" shall mean each Initial Term Loan, Additional Term Loan
and each Revolving Loan.
"Main Station Licenses" shall have the meaning provided in
Section 7.23.
"Management Agreements" shall have the meaning provided in
Section 5A.04.
"Margin Stock" shall have the meaning provided in Regulation
U.
"Market" shall mean (i) an unranked Metropolitan Statistical
Area or (ii) a Metropolitan Statistical Area ranked 30th or higher by an
industry ranking service such as BIA.
"Maturity Date" shall mean November 19, 2001.
"Media Asset" shall mean any radio station, television
station, billboard and other related assets that broadcasts or communicates
ideas, information or entertainment and is located in a Market (it being
understood and agreed, however, that notwithstanding anything to the contrary
contained in this definition, all assets owned by the Borrower and its
Subsidiaries on the Initial Borrowing Date shall constitute "Media Assets").
"Media Asset Swap" shall have the meaning provided in Section
9.02(ix).
-86-
94
"Merger Documents" shall mean the CBC Merger Agreement, the
CCI Merger Agreement and all other documents executed in connection with the
Mergers.
"Mergers" shall mean the CBC Merger and the CCI Merger.
"Minimum Borrowing Amount" shall mean for each Tranche of
Loans $1,000,000.
"Monitoring and Oversight Agreement" shall have the meaning
provided in Section 9.06(viii).
"Multiemployer Plan" shall mean any multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, which is maintained or contributed to by
(or to which there is an obligation to contribute of) Parent, Holdings, the
Borrower or their respective Subsidiaries or an ERISA Affiliate, and each such
plan for the five year period immediately following the latest date on which
Parent, Holdings, the Borrower or their respective Subsidiaries or an ERISA
Affiliate maintained, contributed to or had an obligation to contribute to such
plan.
"Net Interest Expense" shall mean, for any period, the total
interest expense of any Person for such period (calculated without regard to any
limitations on the payment thereof) plus, without duplication, that portion of
Capitalized Lease Obligations of such Person representing the interest factor
for such period in each case net of the total consolidated cash interest income
of such Person for such period, but excluding the amortization of any deferred
financing costs incurred in connection with this Agreement.
"Net Sale Proceeds" shall mean for any sale, lease, transfer
or other disposition of assets, the gross cash proceeds (including any cash
received by way of deferred payment pursuant to a promissory note, receivable or
otherwise, but only as and when received) received by Parent and/or any of its
Subsidiaries from such sale, lease, transfer or other disposition, net of
reasonable transaction costs (including, without limitation, any underwriting,
brokerage or other customary selling commissions and reasonable legal, advisory
and other fees and expenses, including title and recording expenses and
reasonable expenses incurred for preparing such assets for sale, associated
therewith) and payments of unassumed liabilities relating to the assets sold at
the time of, or within 30 days after, the date of such sale, the amount of such
gross cash proceeds required to be used to repay any Indebtedness (other than
Indebtedness of the Lenders pursuant to this Agreement) which is secured by the
respective assets which were sold, and the estimated marginal increase in income
taxes which will be payable by Parent's consolidated group with respect to the
fiscal year in which the sale occurs as a result of such sale; but excluding any
portion of any such gross cash proceeds which Parent determines in good faith
should be reserved for post-closing adjustments (to the extent Parent delivers
to the Lenders a certificate signed by an Authorized Officer as to such
determination), it being understood and agreed that on the day that all such
post-closing adjustments have been determined (which shall not be later than six
months following the date of the respective asset sale), the amount (if any) by
which the reserved amount in respect of such sale or disposition exceeds the
actual post-closing adjustments payable by Parent or any of its Subsidiaries
shall constitute Net Sale Proceeds on such date.
-87-
95
"Non-Controlled Entity" shall mean any Person in which the
Borrower or any Wholly-Owned Subsidiary of the Borrower shall own up to 33 1/3%
of the economic interest and 0% of the voting interest and which shall be
designated as a "Non-Controlled Entity" at time of the investment therein by the
Borrower or such Wholly-Owned Subsidiary. Each such designation shall be
evidenced by delivering to the Administrative Agent an officers' certificate of
an Authorized Officer of the Borrower certifying that the foregoing conditions
have been complied with.
"Non-Controlled Entity Credit Facility" shall mean the credit
agreement entered into by any Non-Controlled Entity for the purpose of raising
proceeds to purchase assets from the Borrower or any Wholly-Owned Subsidiary of
the Borrower, which shall be in form and substance satisfactory to the
Administrative Agent.
"Non-Defaulting Lender" shall, at any time, mean and include
each Lender which is not a Defaulting Lender at such time.
"Note" shall mean each Term Note and each Revolving Note.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03(a).
"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the Administrative
Agent located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx
XxXxxxx, or such other office as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto.
"Obligations" shall mean all amounts owing to the
Administrative Agent, the Collateral Agent or any Lender pursuant to the terms
of this Agreement or any other Credit Document.
"Other Agents" shall mean the Syndication Agent and the
Documentation Agents.
"Parent" shall have the meaning provided in the first
paragraph of this Agreement.
"Parent Common Stock" shall have the meaning provided in
Section 7.13(a).
"Parent Guarantors" shall mean and include each of Parent and
Holdings.
"Parent Note" shall mean each promissory note, in the form of
Exhibit K, evidencing the intercompany loans, other loans and advances made by
Parent in accordance with Section 9.05(xvii).
"Parents Guaranty" shall mean the guaranty of the Parent
Guarantors pursuant to Section 14.
"Payment Office" shall mean the office of the Administrative
Agent located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx
XxXxxxx, or such other office
-88-
96
as the Administrative Agent may hereafter designate in writing as such to the
other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Issuance" shall mean (a) the issuance by Parent of
options or other equity securities (including as a result of the exercise of any
options with regard thereto) of Parent to outside directors, members of
management or employees of Parent or any Subsidiary of Parent, (b) the issuance
of securities as interest or dividends on pay-in-kind debt or preferred equity
securities permitted hereunder and under the other Credit Documents and (c) the
issuance to Parent or any Subsidiary of Parent (or any director, with respect to
directors' qualifying shares) by any of its Subsidiaries of any of their
respective capital stock (other than in the case of capital contributions made
by Parent to Holdings with the proceeds received by Parent in respect of
payments made on any Parent Note as required by Section 9.05(xvii)), in each
case with respect to this clause (c) to the extent such capital stock is pledged
to the Collateral Agent pursuant to the applicable Pledge Agreement (provided
that only 65% of the voting capital stock of a foreign Subsidiary of Parent is
required to be so pledged).
"Permitted Liens" shall have the meaning provided in Section
9.01.
"Permitted Section 9.02(xiii) Acquisition" shall have the
meaning provided in Section 9.02(xiii).
"Person" shall mean any individual, partnership, joint
venture, limited liability company, firm, corporation, association, trust or
other enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" shall mean any single-employer plan, as defined in
Section 4001 of ERISA, which is maintained or contributed to by (or to which
there is an obligation to contribute of), Parent or a Subsidiary of Parent or an
ERISA Affiliate, and each such plan for the five year period immediately
following the latest date on which Parent, a Subsidiary of Parent or an ERISA
Affiliate maintained, contributed or had an obligation to contribute to such
plan.
"Pledge Agreement" shall mean have the meaning provided in
Section 5A.09.
"Pledged Securities" shall mean "Pledged Securities" as
defined in the Pledge Agreement.
"Prime Lending Rate" shall mean the rate which BTCo announces
from time to time as its prime lending rate, the Prime Lending Rate to change
when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. BTCo may make commercial loans or other loans
at rates of interest at, above or below the Prime Lending Rate.
-89-
97
"Prior Acquisition or Sale" shall mean the acquisition of any
radio station or 100% of the capital stock of any Person that owns radio
stations or other assets or the sale of any radio station or other assets or
Subsidiary, in each case, which was consummated prior to the Effective Date.
"Pro Forma Basis" shall mean, in connection with any
calculation of compliance with any financial covenant or financial term required
to be determined on a Pro Forma Basis, the calculation thereof after giving
effect on a pro forma basis to (w) any Prior Acquisition or Sale that occurred
after the first day of the relevant Calculation Period as if same had occurred
on the first day of such period, (x) the assumption, incurrence or issuance of
any Indebtedness or capital stock (other than revolving Indebtedness, except to
the extent same is incurred to refinance other outstanding Indebtedness or to
finance Stock Swaps, Media Asset Swaps or Permitted Section 9.02(xiii)
Acquisitions) after the first day of the relevant Calculation Period as if such
Indebtedness had been incurred or capital stock issued (and the proceeds thereof
applied) on the first day of the relevant Calculation Period, (y) the permanent
repayment of any Indebtedness (other than revolving Indebtedness (except to the
extent accompanied by a permanent commitment reduction)) and Scheduled Repayment
after the first day of the relevant Calculation Period as if such Indebtedness
had been retired or redeemed on the first day of the relevant Calculation Period
and (z) the Stock Swap, Media Asset Swap, Permitted Section 9.02(xiii)
Acquisition or sale of any radio station or Subsidiary, if any, then being
consummated as well as any other Stock Swap, Media Asset Swap, Permitted Section
9.02(xiii) Acquisition or sale of any radio station or other assets or
Subsidiary consummated after the first day of the relevant Calculation Period
and on or prior to the date of the respective Stock Swap, Media Asset Swap,
Permitted Section 9.02(xiii) Acquisition or sale of any radio station or other
assets or Subsidiary then being effected as if such Stock Swaps, Media Asset
Swaps, Permitted Section 9.02(xiii) Acquisitions or sale of any radio station or
other assets or Subsidiary had occurred on the first day of the relevant
Calculation Period, with the following rules to apply in connection therewith:
(i) all Indebtedness and capital stock (x) (other than
revolving Indebtedness, except to the extent same is incurred to
refinance other outstanding Indebtedness, or to finance Permitted
Section 9.02(xiii) Acquisitions, Stock Swaps or Media Asset Swaps)
assumed, incurred or issued after the first day of the relevant
Calculation Period (whether incurred to finance a Stock Swap, Media
Asset Swap or Permitted Section 9.02(xiii) Acquisition, to refinance
Indebtedness or otherwise) shall be deemed to have been incurred or
issued (and the proceeds thereof applied) on the first day of the
respective Calculation Period and remain outstanding through the date
of determination and (y) (other than revolving Indebtedness (except to
the extent accompanied by a permanent commitment reduction))
permanently retired or redeemed after the first day of the relevant
Calculation Period shall be deemed to have been retired or redeemed on
the first day of the respective Calculation Period and remain retired
through the date of determination;
(ii) all Indebtedness assumed to be outstanding pursuant to
preceding clause (i) shall be deemed to have borne interest at (x) the
rate applicable thereto, in the case of
-90-
98
fixed rate indebtedness or (y) the rates which would have been
applicable thereto during the respective period when same was deemed
outstanding, in the case of floating rate Indebtedness (although
interest expense with respect to any Indebtedness for periods while
same was actually outstanding during the respective period shall be
calculated using the actual rates applicable thereto while same was
actually outstanding); and
(iii) in making any determination of Consolidated EBITDA or
Broadcast Cash Flow, pro forma effect shall be given to any Prior
Acquisition or Sale, any Stock Swap, any Media Asset Swap, any
Permitted Section 9.02(xiii) Acquisition or sale of any radio station
or other assets or Subsidiary for the periods described above, taking
into account, in the case of any Permitted Section 9.02(xiii)
Acquisition, Prior Acquisition or Sale (only with respect to such
acquisition, if any), Media Asset Swap or Stock Swap, any Cost Savings
Measures which are directly attributable to such Permitted Section
9.02(xiii) Acquisition, Prior Acquisition or Sale (only with respect to
such acquisition, if any) Media Asset Swap or Stock Swap, as if such
Cost Savings Measures were realized on the first day of the respective
period.
"Projections" shall have the meaning provided in Section
7.05(d).
"Qualified Capital Stock" shall mean any capital stock that is
not Disqualified Capital Stock.
"Quarterly Payment Date" shall mean the last Business Day of
each March, June, September and December occurring after the Initial Borrowing
Date.
"Radio Stations" shall mean and include (i) all of the AM and
FM radio stations owned and operated by Parent and its Subsidiaries as of the
Initial Borrowing Date, after giving effect to all elements of the Transaction
that are closing or being consummated as of or on the Initial Borrowing Date and
(ii) any radio stations acquired after the Initial Borrowing Date.
"RCRA" shall mean the Resource Conservation and Recovery Act,
as the same may be amended from time to time, 42 U.S.C. Section 6901 et seq.
"Real Property" of any Person shall mean all the right, title
and interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recovery Event" shall mean the receipt by Parent or any of
its Subsidiaries of any (i) cash insurance proceeds payable (x) by reason of
theft, loss, physical destruction or damage or any other similar event with
respect to any property or assets of Parent or any of its Subsidiaries and (y)
under any policy of insurance required to be maintained under Section 8.03 or
(ii) condemnation award payable by reason of eminent domain or deed in lieu
thereof.
"Refinancing" shall mean the repayment in full of the
Indebtedness to be Refinanced.
-91-
99
"Refinancing Documents" shall mean all agreements and
documents related to the Refinancing.
"Region" shall mean each of the geographic areas mutually
designated as a "Region" by the Borrower and the Administrative Agent and
containing the Markets served by the Media Assets located therein.
"Register" shall have the meaning set forth in Section 13.17.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
"Regulation T" shall mean Regulation T of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Reinvestment Assets" shall mean Media Assets (and related
assets) or the capital stock of any Person that owns Media Assets or equipment
to be used at Media Assets (whether by merger of the Borrower or any of its
Subsidiaries (including Subsidiaries created in accordance with Section 9.14),
or a Stock Swap or a Media Asset Swap effected in accordance with Section 9.02
(ix)).
"Release" means disposing, discharging, injecting, spilling,
pumping, leaking, leaching, dumping, emitting, escaping, emptying, seeping,
placing, pouring and the like, into or upon any land or water or air, or
otherwise entering into the environment.
"Replaced Lender" shall have the meaning provided in Section
1.13.
"Replacement Lender" shall have the meaning provided in
Section 1.13.
"Reportable Event" shall mean an event described in Section
4043(c) of ERISA with respect to a Plan as to which the 30-day notice
requirement has not been waived by the PBGC.
"Required Lenders" shall mean, at any time, Non-Defaulting
Lenders, the sum of whose outstanding Term Loans (or, if prior to the
termination thereof, Term Loan Commitments and then outstanding Term Loans of
such Non-Defaulting Lenders) and Revolving Loan Commitments (or after the
termination thereof, outstanding Revolving Loans and Adjusted RL Percentages of
Letter of Credit Outstandings) represent an amount greater than 50% of the sum
of all outstanding Term Loans (or, if prior to the termination thereof, Term
Loan Commitments and all then outstanding Term Loans of all Non-Defaulting
Lenders) of Non-Defaulting Lenders
-92-
100
and the Adjusted Total Revolving Loan Commitment (or after the termination
thereof, the sum of the then total outstanding Revolving Loans of Non-Defaulting
Lenders and the aggregate Adjusted RL Percentages of all Non-Defaulting Lenders
of Letter of Credit Outstandings at such time).
"Returns" shall have the meaning provided in Section 7.09.
"Revolving Loan" shall have the meaning provided in Section
1.01(b).
"Revolving Loan Commitment" shall mean for each Lender, the
amount set forth opposite such Lender's name in Schedule I hereto directly below
the column entitled "Revolving Loan Commitment," as same may be (x) reduced from
time to time pursuant to Sections 3.02, 3.03, 4.02 and/or 10 or (y) adjusted
from time to time as a result of assignments to or from such Lender pursuant to
Section 1.13 or 13.04(b).
"Revolving Loan Commitment Commission" shall have the meaning
provided in Section 3.01(a)(i).
"Revolving Note" shall have the meaning provided in Section
1.05(a)(ii).
"RL Percentage" of any Lender at any time shall mean a
fraction (expressed as a percentage) the numerator of which is the Revolving
Loan Commitment of such Lender at such time and the denominator of which is the
Total Revolving Loan Commitment at such time, provided that if the RL Percentage
of any Lender is to be determined after the Total Revolving Loan Commitment has
been terminated, then the RL Percentages of the Lenders shall be determined
immediately prior (and without giving effect) to such termination.
"SEC" shall have the meaning provided in Section 8.01(g).
"Section 4.04(b)(ii) Certificate" shall have the meaning
provided in Section 4.04(b).
"Secured Creditors" shall have the meaning assigned that term
in the Pledge Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Shareholders' Agreements" shall have the meaning provided in
Section 5A.04.
"Standby Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Start Date" shall have the meaning provided in the definition
of "Applicable Margin."
-93-
101
"Stated Amount" of each Letter of Credit shall, at any time,
mean the maximum amount available to be drawn thereunder (in each case
determined without regard to whether any conditions to drawing could then be
met).
"Stock Swapped Media Asset" shall have the meaning provided in
Section 9.02(ix).
"Stock Swaps" shall have the meaning provided in Section
9.02(ix).
"Stock Target Media Asset" shall have the meaning provided in
Section 9.02(ix).
"Subsidiary" shall mean, as to any Person, (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or more Subsidiaries of
such Person has more than a 50% equity interest at the time.
"Subsidiary Guarantor" shall mean any Subsidiary of Parent
that is or becomes a party to the Subsidiary Guaranty for the purpose of
guaranteeing the Obligations hereunder and any obligations under Interest Rate
Protection Agreements.
"Subsidiary Guaranty" shall have the meaning provided in
Section 5A.08.
"Swapped Media Asset" shall have the meaning provided in
Section 9.02(ix).
"Syndication Agent" shall mean The Chase Manhattan Bank, in
its capacity as Syndication Agent for the Lenders hereunder.
"Target Media Asset" shall have the meaning provided in
Section 9.02(ix).
"Tax Sharing Agreement" shall have the meaning provided in
Section 5A.04.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Term Loan" shall mean each Initial Term Loan and each
Additional Term Loan.
"Term Loan Commitment" shall mean the Initial Term Loan
Commitment and Additional Term Loan Commitment of any Lender.
"Term Note" shall have the meaning provided in Section
1.05(a)(i).
"Test Period" shall mean the four consecutive fiscal quarters
then most recently ended (taken as one accounting period).
-94-
102
"Total Additional Term Loan Commitment" shall mean, at any
time, the sum of the Additional Term Loan Commitments of each of the Lenders.
"Total Commitment" shall mean, at any time, the sum of the
Commitments of each of the Lenders.
"Total Initial Term Loan Commitment" shall mean, at any time,
the sum of the Initial Term Loan Commitments of each of the Lenders.
"Total Revolving Loan Commitment" shall mean, at any time, the
sum of the Revolving Loan Commitments of each of the Lenders.
"Total Term Loan Commitment" shall mean, at any time, the sum
of the Initial Term Loan Commitments and Additional Term Loan Commitment of each
of the Lenders.
"Total Unutilized Additional Term Loan Commitment" shall mean,
at any time, the amount equal to the remainder of (x) the Total Additional Term
Loan Commitment then in effect less (y) the aggregate principal amount of
Additional Term Loans then outstanding.
"Total Unutilized Revolving Loan Commitment" shall mean, at
any time, the amount equal to the remainder of (x) the Total Revolving Loan
Commitment then in effect less (y) the sum of the aggregate principal amount of
Revolving Loans then outstanding plus the aggregate amount of Letter of Credit
Outstandings at such time.
"Trade Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Tranche" shall mean the respective facility and commitments
utilized in making Loans hereunder, i.e., Term Loans, Revolving Loans and, to
the extent any new tranches of Term Loans are created pursuant to Section 1.14,
such new tranches.
"Transaction" shall mean, collectively, (i) the consummation
of the Mergers, (ii) the consummation of the Borrower's 10 3/4% Senior
Subordinated Notes Tender Offer/Consent Solicitation, (iii) the entering into of
the Credit Documents and the incurrence of Loans on the Initial Borrowing Date,
(iv) the consummation of the Refinancing and (v) the payment of fees and
expenses in connection with the foregoing.
"Transaction Documents" shall mean and include (i) the Credit
Documents, (ii) Merger Documents, (iii) the Borrower's 10 3/4% Senior
Subordinated Notes Tender Offer/Consent Solicitation Documents and (iv) the
Refinancing Documents.
"Type" shall mean the type of Loan determined with regard to
the interest option applicable thereto, i.e., whether a Base Rate Loan or a
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
-95-
103
"Unfunded Current Liability" of any Plan means the amount, if
any, by which the actuarial present value of the accumulated benefits under the
Plan as of the close of its most recent plan year, determined in accordance with
Statement of Financial Accounting Standards No. 35, based upon the actuarial
assumptions used by the Plan's actuary in the most recent annual valuation of
the Plan, exceeds the fair market value of the assets allocable thereto,
determined in accordance with Section 412 of the Code.
"United States" and "U.S." shall each mean the United States
of America.
"Unpaid Drawing" shall have the meaning provided in Section
2.04(a).
"Unutilized Additional Term Loan Commitment" with respect to
any Lender, at any time, shall mean such Lender's Additional Term Loan
Commitment at such time less the aggregate outstanding principal amount of
Additional Term Loans made by such Lender.
"Unutilized Revolving Loan Commitment" with respect to any
Lender, at any time, shall mean such Lender's Revolving Loan Commitment at such
time less the sum of (i) the aggregate outstanding principal amount of Revolving
Loans made by such Lender plus (ii) such Lender's Adjusted RL Percentage of all
Letter of Credit Outstandings at such time.
"Voting Stock" shall mean, as to any Person, any class or
classes of capital stock of such Person pursuant to which the holders thereof
have the general voting power under ordinary circumstances to elect at least a
majority of the Board of Directors of such Person, or any class or classes of
capital stock convertible into such stock at the option of the holders thereof.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i)
any corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, association, joint venture
or other entity in which such Person and/or one or more Wholly-Owned
Subsidiaries of such Person has a 100% equity interest at such time. Any
reference to a Wholly-Owned Subsidiary, unless expressly to a Wholly-Owned
Subsidiary of another Person, shall mean a Wholly-Owned Subsidiary of the
Borrower.
"Year 2000 Transaction Documents" shall mean all documents
executed in connection with the Year 2000 Transactions.
"Year 2000 Transactions" shall mean (i) the purchase,
defeasance, redemption, prepayment, decrease or other acquisition or retirement
for value of any indebtedness (including Existing Indebtedness) or preferred
stock of AMFM, Parent, Holdings, the Borrower or any of its Subsidiaries, as the
Borrower may decide to purchase in its sole and absolute discretion and (ii) the
payment of premiums, dividends, accrued interest, fees and expenses in
connection with the transactions described in preceding clause (i).
-96-
104
SECTION 12. The Administrative Agent.
12.01 Appointment. The Lenders hereby designate BTCo as
Administrative Agent (for purposes of this Section 12, the term "Administrative
Agent" shall include BTCo in its capacity as Collateral Agent pursuant to the
Pledge Agreement) to act as specified herein and in the other Credit Documents.
Each Lender hereby irrevocably authorizes, and each holder of any Note by the
acceptance of such Note shall be deemed irrevocably to authorize, the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement, the other Credit Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to or
required of the Administrative Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto. The Administrative Agent may
perform any of its duties hereunder by or through its respective officers,
directors, agents, employees or affiliates. The Co-Lead Arrangers, Syndication
Agent and Documentation Agent shall have no duties or liabilities in such
capacities hereunder.
12.02 Nature of Duties. The Administrative Agent shall not
have any duties or responsibilities except those expressly set forth in this
Agreement and the other Credit Documents. Neither the Administrative Agent nor
any of its respective officers, directors, agents, employees or affiliates shall
be liable for any action taken or omitted by it or them hereunder or under any
other Credit Document or in connection herewith or therewith, unless caused by
its or their gross negligence or willful misconduct. The duties of the
Administrative Agent shall be mechanical and administrative in nature; the
Administrative Agent shall not have by reason of this Agreement or any other
Credit Document a fiduciary relationship in respect of any Lender or the holder
of any Note; and nothing in this Agreement or any other Credit Document,
expressed or implied, is intended to or shall be so construed as to impose upon
the Administrative Agent any obligations in respect of this Agreement or any
other Credit Document except as expressly set forth herein or therein.
12.03 Lack of Reliance on the Agent. Independently and without
reliance upon the Administrative Agent, each Lender and the holder of each Note,
to the extent it deems appropriate, has made and shall continue to make (i) its
own independent investigation of the financial condition and affairs of Parent
and its Subsidiaries in connection with the making and the continuance of the
Loans and the taking or not taking of any action in connection herewith and (ii)
its own appraisal of the creditworthiness of Parent and its Subsidiaries and,
except as expressly provided in this Agreement, the Administrative Agent shall
not have any duty or responsibility, either initially or on a continuing basis,
to provide any Lender or the holder of any Note with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Loans or at any time or times thereafter. The Administrative Agent
shall not be responsible to any Lender or the holder of any Note for any
recitals, statements, information, representations or warranties herein or in
any document, certificate or other writing delivered in connection herewith or
for the execution, effectiveness, genuineness, validity, enforceability,
perfection, collectibility, priority or sufficiency of this Agreement or any
other Credit Document or the financial condition of Parent and its Subsidiaries
or be required to make any inquiry concerning either the performance or
observance of any of the terms,
-97-
105
provisions or conditions of this Agreement or any other Credit Document, or the
financial condition of Parent and its Subsidiaries or the existence or possible
existence of any Default or Event of Default.
12.04 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Credit Document, the Administrative Agent shall be
entitled to refrain from such act or taking such action unless and until the
Administrative Agent shall have received instructions from the Required Lenders;
and the Administrative Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, neither any Lender nor the
holder of any Note shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder or under any other Credit Document in
accordance with the instructions of the Required Lenders.
12.05 Reliance. The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cablegram, order or other document or telephone message signed, sent or
made by any Person that the Administrative Agent believed to be the proper
Person, and, with respect to all legal matters pertaining to this Agreement and
any other Credit Document and its duties hereunder and thereunder, upon advice
of counsel selected by the Administrative Agent.
12.06 Indemnification. To the extent the Administrative Agent
is not reimbursed and indemnified by the Borrower (and without limiting the
obligation of the Borrower to do so), the Lenders will reimburse and indemnify
the Agent, in proportion to their respective "percentages" as used in
determining the Required Lenders, for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs,
expenses or disbursements of whatsoever kind or nature which may be imposed on,
asserted against or incurred by the Administrative Agent in performing its
respective duties hereunder or under any other Credit Document, in any way
relating to or arising out of this Agreement or any other Credit Document;
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct.
12.07 The Administrative Agent in Its Individual Capacity.
With respect to its obligation to make Loans under this Agreement, the
Administrative Agent shall have the rights and powers specified herein for a
"Lender" and may exercise the same rights and powers as though it were not
performing the duties specified herein; and the term "Lenders," "Required
Lenders," "holders of Notes" or any similar terms shall, unless the context
clearly otherwise indicates, include the Administrative Agent in its individual
capacity. The Administrative Agent may accept deposits from, lend money to, and
generally engage in any kind of banking, trust or other business with any Credit
Party or any Affiliate of any Credit Party as if it were not performing the
duties specified herein, and may accept fees and other consideration from the
-98-
106
Borrower or any other Credit Party for services in connection with this
Agreement and otherwise without having to account for the same to the Lenders.
12.08 Holders. The Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes hereof unless and until
a written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or endorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
12.09 Resignation by the Administrative Agent. (a) The
Administrative Agent may resign from the performance of all its functions and
duties hereunder and/or under the other Credit Documents at any time by giving
15 Business Days' prior written notice to the Borrower and the Lenders. Such
resignation shall take effect upon the appointment of a successor Administrative
Agent pursuant to clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Lenders shall
appoint a successor Administrative Agent hereunder or thereunder who shall be a
commercial bank or trust company reasonably acceptable to the Borrower.
(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent, with the
consent of the Borrower, shall then appoint a successor Administrative Agent who
shall serve as Administrative Agent hereunder or thereunder until such time, if
any, as the Lenders appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) above by the 20th Business Day after the date such
notice of resignation was given by the Administrative Agent, the Administrative
Agent's resignation shall become effective and the Required Lenders shall
thereafter perform all the duties of the Administrative Agent hereunder and/or
under any other Credit Document until such time, if any, as the Lenders appoint
a successor Administrative Agent as provided above.
SECTION 13. Miscellaneous.
13.01 Payment of Expenses, etc. The Borrower shall: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of- pocket costs and expenses of the Administrative Agent
(including, without limitation, the reasonable fees and disbursements of White &
Case LLP and local counsel) in connection with the preparation, execution and
delivery of this Agreement and the other Credit Documents and the documents and
instruments referred to herein and therein and any amendment, waiver or consent
relating hereto or thereto, of the Administrative Agent in connection with its
syndication efforts with respect to this Agreement and of the Administrative
Agent and each of the Lenders in connection with the enforcement of this
Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein (including, without limitation, the reasonable
fees and
-99-
107
disbursements of counsel for the Administrative Agent and for each of the
Lenders); (ii) pay and hold each of the Lenders harmless from and against any
and all present and future stamp, excise and other similar taxes with respect to
the foregoing matters and save each of the Lenders harmless from and against any
and all liabilities with respect to or resulting from any delay or omission
(other than to the extent attributable to such Lender) to pay such taxes; and
(iii) indemnify the Administrative Agent, the Collateral Agent and each Lender,
and each of their respective officers, trustees, directors, employees,
representatives, agents, trustees and affiliates from and hold each of them
harmless against any and all liabilities, obligations (including removal or
remedial actions), losses, damages, penalties, claims, actions, judgments,
suits, costs, expenses and disbursements (including reasonable attorneys' and
consultants' fees and disbursements) incurred by, imposed on or assessed against
any of them as a result of, or arising out of, or in any way related to, or by
reason of, (a) any investigation, litigation or other proceeding (whether or not
the Administrative Agent or any Lender or any of their affiliates is a party
thereto) related to the entering into and/or performance of this Agreement or
any other Credit Document or the use of any Letter of Credit or the proceeds of
any Loans hereunder or the consummation of any transactions contemplated herein
or in any other Credit Document or the exercise of any of their rights or
remedies provided herein or in the other Credit Documents, or (b) the actual or
alleged presence of Hazardous Materials in the air, surface water or groundwater
or on the surface or subsurface of any Real Property owned or at any time
operated by Parent or any of its Subsidiaries, the generation, storage,
transportation, handling or disposal of Hazardous Materials at any location,
whether or not owned or operated by Parent or any of its Subsidiaries, the
non-compliance of any Real Property with foreign, federal, state and local laws,
regulations, and ordinances (including applicable permits thereunder) applicable
to any Real Property, or any Environmental Claim asserted against Parent, any of
its Subsidiaries or any Real Property owned or at any time operated by Parent or
any of its Subsidiaries, including, in each case, without limitation, the
reasonable fees and disbursements of counsel and other consultants incurred in
connection with any such investigation, litigation or other proceeding (but
excluding any losses, liabilities, claims, damages or expenses to the extent
incurred by reason of the gross negligence or willful misconduct of the Person
to be indemnified). To the extent that the undertaking to indemnify, pay or hold
harmless the Administrative Agent or any Lender set forth in the preceding
sentence may be unenforceable because it is violative of any law or public
policy, the Borrower shall make the maximum contribution to the payment and
satisfaction of each of the indemnified liabilities which is permissible under
applicable law.
13.02 Right of Setoff; Collateral Matters. In addition to any
rights now or hereafter granted under applicable law or otherwise, and not by
way of limitation of any such rights, upon the occurrence of an Event of
Default, each Lender is hereby authorized at any time or from time to time,
without presentment, demand, protest or other notice of any kind to Parent or
any of its Subsidiaries or to any other Person, any such notice being hereby
expressly waived, to set off and to appropriate and apply any and all deposits
(general or special) and any other Indebtedness at any time held or owing by
such Lender (including, without limitation, by branches and agencies of such
Lender wherever located) to or for the credit or the account of Parent or any of
its Subsidiaries against and on account of the Obligations and liabilities of
Parent or any of its Subsidiaries to such Lender under this Agreement or under
any of the other Credit Documents, including, without limitation, all interests
in Obligations purchased by such
-100-
108
Lender pursuant to Section 13.06(b), and all other claims of any nature or
description arising out of or connected with this Agreement or any other Credit
Document, irrespective of whether or not such Lender shall have made any demand
hereunder and although said Obligations, liabilities or claims, or any of them,
shall be contingent or unmatured.
13.03 Notices. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: if to any Credit Party,
at the address specified opposite its signature below or in the other relevant
Credit Documents; if to any Lender, at its address specified opposite its name
set forth on Schedule II hereto; and if to the Administrative Agent, at its
Notice Office; or, as to any Credit Party or the Administrative Agent, at such
other address as shall be designated by such party in a written notice to the
other parties hereto and, as to each Lender, at such other address as shall be
designated by such Lender in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when mailed,
telegraphed, telexed, telecopied, or cabled or sent by overnight courier, be
effective when deposited in the mails, delivered to the telegraph company, cable
company or overnight courier, as the case may be, or sent by telex or
telecopier, except that notices and communications to the Administrative Agent
and the Borrower shall not be effective until received by the Administrative
Agent or the Borrower, as the case may be.
13.04 Benefit of Agreement. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided, however, no Credit Party
may assign or transfer any of its rights, obligations or interest hereunder or
under any other Credit Document without the prior written consent of the Lenders
and, provided further, that, although any Lender may transfer assign or grant
participations in its rights hereunder, such Lender shall remain a "Lender" for
all purposes hereunder (and may not transfer or assign all or any portion of its
Commitment hereunder except as provided in Section 13.04(b)) and the transferee,
assignee or participant, as the case may be, shall not constitute a "Lender"
hereunder and, provided further, that no Lender shall transfer or grant any
participation under which the participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Credit Document except to
the extent such amendment or waiver would (i) extend the final scheduled
maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is
not extended beyond the Maturity Date) in which such participant is
participating, or reduce the rate or extend the time of payment of interest or
Fees thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates) or reduce the principal amount thereof,
or increase the amount of the participant's participation over the amount
thereof then in effect (it being understood that a waiver of any Default or
Event of Default or of a mandatory reduction in the Total Commitment shall not
constitute a change in the terms of such participation, and that an increase in
any Commitment or Loan and an increase in the available portion of any
Commitment of any Lender shall be permitted without the consent of any
participant if the participant's participation is not increased as a result
thereof), (ii) consent to the assignment or transfer by the Borrower of any of
its rights and obligations under this Agreement or (iii) release all or
substantially all of the Collateral under the Pledge Agreement (except as
expressly provided in the Credit Documents) supporting
-101-
109
the Loans hereunder in which such participant is participating. In the case of
any such participation, the participant shall not have any rights under this
Agreement or any of the other Credit Documents (the participant's rights against
such Lender in respect of such participation to be those set forth in the
agreement executed by such Lender in favor of the participant relating thereto)
and all amounts payable by the Borrower hereunder shall be determined as if such
Lender had not sold such participation.
(b) Notwithstanding the foregoing, any Lender (or any Lender
together with one or more other Lenders) may (x) assign all or a portion of its
Revolving Loan Commitment (and related outstanding Obligations hereunder),
and/or its outstanding Term Loans of one more Tranches (or, if prior to the
termination of the Commitment with respect to the relevant Tranche, the relevant
Term Loan Commitment and/or outstanding Term Loan with respect to such Tranche)
to (i) its parent company and/or any affiliate of such Lender which is at least
50% owned by such Lender or its parent company or to one or more Lenders or (ii)
in the case of any Lender that is a fund that invests in bank loans, any other
fund that invests in bank loans and is managed by the same investment advisor of
such Lender or by an Affiliate of such investment advisor or (y) assign all, or
if less than all, a portion equal to at least $5,000,000 in the aggregate for
the assigning Lender or assigning Lenders, of such Revolving Loan Commitments
(and related outstanding Obligations hereunder) and outstanding principal amount
Term Loans (or, if prior to termination of the Commitment with respect to the
relevant Tranche, the relevant Term Loan Commitment and/or outstanding Term
Loans with respect to such Tranche) hereunder to one or more Eligible
Transferees (treating any fund that invests in bank loans and any other fund
that invests in bank loans and is managed by the same investment advisor of such
fund or by an Affiliate of such investment advisor as a single Eligible
Transferee), each of which assignees shall become a party to this Agreement as a
Lender by execution of an Assignment and Assumption Agreement, provided that,
(i) at such time Schedule I shall be deemed modified to reflect the Commitment
(and/or outstanding Term Loans) of such new Lender and of the existing Lenders,
(ii) upon surrender of the old Notes, new Notes will be issued, at the
Borrower's expense, to such new Lender and to the assigning Lender, such new
Notes to be in conformity with the requirements of Section 1.05 (with
appropriate modifications) to the extent needed to reflect the revised
Commitments (and/or outstanding Term Loans), (iii) the consent of the
Administrative Agent and, so long as no Default or Event of Default then exists,
of the Borrower shall be required in connection with any such assignment
pursuant to clause (y) of this Section 13.04(b) (which consents shall not be
unreasonably withheld) and (iv) the Administrative Agent shall receive at the
time of each such assignment, from the assigning or assignee Lender, the payment
of a non-refundable assignment fee of $3,500 and, provided further, that such
transfer or assignment will not be effective until recorded by the
Administrative Agent on the Register pursuant to Section 13.17 hereof. To the
extent of any assignment pursuant to this Section 13.04(b), the assigning Lender
shall be relieved of its obligations hereunder with respect to its assigned
Commitments. At the time of each assignment pursuant to this Section 13.04(b) to
a Person which is not already a Lender hereunder and which is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code) for
Federal income tax purposes, the respective assignee Lender shall provide to the
Borrower and the Administrative Agent the appropriate Internal Revenue Service
Forms (and, if applicable a Section 4.04(b)(ii) Certificate) described in
Section 4.04(b). To the extent that an assignment of all or any portion of a
Lender's
-102-
110
Commitment and related outstanding Obligations pursuant to Section 1.13 or this
Section 13.04(b) would, at the time of such assignment, result in increased
costs under Section 1.10, 1.11, 2.05 or 4.04 from those being charged by the
respective assigning Lender prior to such assignment, then the Borrower shall
not be obligated to pay such increased costs (although the Borrower shall be
obligated to pay any other increased costs of the type described above resulting
from changes after the date of the respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit any
Lender from pledging its Loans and Notes hereunder to a Federal Reserve Bank in
support of borrowings made by such Lender from such Federal Reserve Bank and,
with the consent of the Administrative Agent, any Lender which is a fund may
pledge all or any portion of its Loans and Notes hereunder to its trustee in
support of its obligations to its trustee. No pledge pursuant to this clause (c)
shall release the transferor Lender from any of its obligations hereunder.
13.05 No Waiver; Remedies Cumulative. No failure or delay on
the part of the Administrative Agent or any Lender or any holder of any Note in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower or any other Credit Party
and the Administrative Agent or any Lender or the holder of any Note shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder or under any other Credit Document preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege hereunder or thereunder. The rights, powers and remedies herein or
in any other Credit Document expressly provided are cumulative and not exclusive
of any rights, powers or remedies which the Administrative Agent or any Lender
or the holder of any Note would otherwise have. No notice to or demand on any
Credit Party in any case shall entitle any Credit Party to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the
rights of the Administrative Agent or any Lender or the holder of any Note to
any other or further action in any circumstances without notice or demand.
13.06 Payments Pro Rata. (a) Except as otherwise provided in
this Agreement, the Administrative Agent agrees that promptly after its receipt
of each payment from or on behalf of the Borrower in respect of any Obligations
hereunder, it shall distribute such payment to the Lenders (other than any
Lender that has consented in writing to waive its pro rata share of any such
payment) pro rata based upon their respective shares, if any, of the Obligations
with respect to which such payment was received.
(b) Each of the Lenders agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security, by
the exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings, Commitment Commission or Letter of Credit Fees,
of a sum which with respect to the related sum or sums received by other Lenders
is in a greater proportion than the total of such Obligation then owed and due
to such Lender bears to the total of such Obligation then owed and due to all of
the Lenders immediately prior to such receipt, then such Lender receiving such
excess payment shall purchase for cash without recourse or
-103-
111
warranty from the other Lenders an interest in the Obligations of the respective
Credit Party to such Lenders in such amount as shall result in a proportional
participation by all the Lenders in such amount; provided that if all or any
portion of such excess amount is thereafter recovered from such Lender, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein,
the provisions of the preceding Sections 13.06(a) and (b) shall be subject to
the express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.
13.07 Calculations; Computations. (a) The financial statements
to be furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with generally accepted accounting principles in the United States
consistently applied throughout the periods involved (except as set forth in the
notes thereto or as otherwise disclosed in writing by the Borrower to the
Lenders); provided that, notwithstanding anything to the contrary contained in
this Agreement, all computations determining compliance with Sections 9.08, 9.09
and 9.10 and the definitions of Applicable Commitment Commission Percentage and
Applicable Margin shall include the consolidated Indebtedness (other than
Indebtedness for borrowed money evidenced by a Parent Note), consolidated net
cash interest expense and consolidated EBITDA, as the case may be, of each
Non-Controlled Entity; provided further, that, except as otherwise specifically
provided herein, (i) all computations of Excess Cash Flow and all computations
determining compliance with Sections 9.07 through 9.10, inclusive, and the
definitions of Applicable Commitment Commission Percentage and Applicable Margin
shall utilize accounting principles and policies in conformity with those used
to prepare the historical financial statements delivered to the Lenders pursuant
to Section 7.05(a) and (ii) all computations determining compliance with
Sections 9.08, 9.09 and 9.10 and the definitions of Applicable Commitment
Commission Percentage and Applicable Margin shall be determined on a Pro Forma
Basis (with the foregoing generally accepted accounting principles, subject to
the preceding proviso, herein called "GAAP").
(b) All computations of interest on Eurodollar Loans,
Commitment Commission and Fees hereunder shall be made on the basis of a year of
360 days for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest, Commitment
Commission or Fees are payable and all computations of interest on Base Rate
Loans shall be made on the basis of a year of 365 days or 366 days, as the case
may be, for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest is payable.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
-104-
112
OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR
OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH OF PARENT, HOLDINGS AND THE BORROWER HEREBY
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH OF PARENT,
HOLDINGS AND THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
ANY CREDIT PARTY AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH
SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT UNDER THIS AGREEMENT, ANY LENDER OR
THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST PARENT, HOLDINGS OR
THE BORROWER IN ANY OTHER JURISDICTION.
(b) EACH OF PARENT, HOLDINGS AND THE BORROWER HEREBY
IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE
COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.09 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Administrative Agent.
13.10 Effectiveness. This Agreement shall become effective on
the date (the "Effective Date") on which (i) each of the Borrower, each Agent
and each Lender shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered (including by way of facsimile
device) the same to the Administrative Agent at its Notice Office
-105-
113
and (ii) the conditions precedent contained in Section 5A are met to the
satisfaction of the Administrative Agent and the Required Lenders (determined
immediately after the occurrence of the Effective Date). Unless the
Administrative Agent has received actual notice from any Lender that the
conditions contained in Section 5A have not been met to its satisfaction, upon
the satisfaction of the condition described in clause (i) of the immediately
preceding sentence and upon the Administrative Agent's good faith determination
that the conditions described in clause (ii) of the immediately preceding
sentence have been met, then the Effective Date shall have been deemed to have
occurred, regardless of any subsequent determination that one or more of the
conditions thereto had not been met (although the occurrence of the Effective
Date shall not release the Borrower from any liability for failure to satisfy
one or more of the applicable conditions contained in Section 5A). The
Administrative Agent will give the Borrower and each Lender prompt written
notice of the occurrence of the Effective Date.
13.11 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
13.12 Amendment or Waiver; etc. (a) Neither this Agreement nor
any other Credit Document nor any terms hereof or thereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or
termination is in writing signed by the respective Credit Parties party thereto
and the Required Lenders, provided that no such change, waiver, discharge or
termination shall, without the consent of each Lender (other than a Defaulting
Lender) (with Obligations being directly affected), (i) extend the final
scheduled maturity of any Loan or Note or extend the stated maturity of any
Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time
of payment of interest or Fees thereon (except in connection with a waiver of
applicability of any post-default increase in interest rates), or reduce the
principal amount thereof (except to the extent repaid in cash), or, in
connection with the consummation of the AMFM/Clear Channel Merger, amend this
Agreement such that the Total Commitment is not automatically terminated and all
then outstanding Loans are not required to be repaid upon the occurrence of such
event, (ii) release all or substantially all of the Collateral (except as
expressly provided in the Credit Documents) under the Pledge Agreement other
than in connection with a sale of such Collateral otherwise permitted under the
Credit Documents, (iii) release any Guaranty of all or any portion of the
Obligations, except in connection with a merger, sale or other disposition
otherwise permitted hereunder (in which case, such release shall require no
further approval by the Lenders), (iv) amend, modify or waive any provision of
this Section 13.12 (it being understood that, with the consent of the Required
Lenders, the holders of additional extensions of credit pursuant to this
Agreement may be granted similar voting rights as included for the holders of
the Term Loans or Revolving Loans), (v) reduce the percentage specified in the
definition of Required Lenders (it being understood that, with the consent of
the Required Lenders, additional extensions of credit pursuant to this Agreement
may be included in the determination of the Required Lenders on substantially
the same basis as the extensions of Term Loans and Revolving Loan Commitments
are included on the Effective Date) or (vi) consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement; provided further, that no such change, waiver, discharge or
termination shall (w) increase the Commitment of any Lender over the amount
thereof then in
-106-
114
effect without the consent of such Lender (it being understood that waivers or
modifications of conditions precedent, covenants, Defaults or Events of Default
or of a mandatory reduction in the Total Commitment shall not constitute an
increase of the Commitment of any Lender, and that an increase in the available
portion of any Commitment of any Lender shall not constitute an increase in the
Commitment of such Lender), (x) without the consent of each Issuing Lender,
amend, modify or waive any provision of Section 2 or alter its rights or
obligations with respect to Letters of Credit, (y) without the consent of the
Administrative Agent, amend, modify or waive any provision of Section 12 as same
applies to such Administrative Agent or any other provision as same relates to
the rights or obligations of such Agent, and (z) without the consent of the
Collateral Agent, amend, modify or waive any provision relating to the rights or
obligations of the Collateral Agent.
(b) If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by clauses (i) through (vi), inclusive, of the first proviso to
Section 13.12(a), the consent of the Required Lenders is obtained but the
consent of one or more of such other Lenders whose consent is required is not
obtained, then the Borrower shall have the right, so long as all non-consenting
Lenders are treated as described in clauses (A) or (B) below, to either (A)
replace each such non-consenting Lender or Lenders (or, at the option of the
Borrower, if the respective Lender's consent is required with respect to less
than all Tranches of Loans (or related Commitments), to replace only the
respective Tranche or Tranches of Commitments and/or Loans of the respective
non-consenting Lender which gave rise to the need to obtain such Lender's
individual consent) with one or more Replacement Lenders pursuant to Section
1.13 so long as at the time of such replacement, each such Replacement Lender
consents to the proposed change, waiver, discharge or termination or (B)
terminate such non-consenting Lender's Commitment and repay its Loans, in
accordance with Sections 3.02(b) and/or 4.01(b), provided that unless the
Commitments terminated, and Loans repaid, pursuant to preceding clause (B) are
immediately replaced in full at such time through the addition of new Lenders or
the increase of the Commitments and/or Loans of existing Lenders (who in each
case must specifically consent thereto), then, in the case of any action
pursuant to preceding clause (B), all of the Lenders (determined before giving
effect to the proposed action) shall specifically consent thereto, provided
further, that in any event the Borrower shall not have the right to replace a
Lender, terminate its Commitment or repay its Loans solely as a result of the
exercise of such Lender's rights (and the withholding of any required consent by
such Lender) pursuant to the second proviso to Section 13.12(a).
13.13 Survival. All indemnities set forth herein including,
without limitation, in Sections 1.10, 1.11, 2.05, 4.04, 12.06 and 13.01 shall,
subject to Section 13.15 (to the extent applicable), survive the execution,
delivery and termination of this Agreement and the Notes and the making and
repayment of the Loans.
13.14 Domicile of Loans. Each Lender may transfer and carry
its Loans at, to or for the account of any office, Subsidiary or Affiliate of
such Lender. Notwithstanding anything to the contrary contained herein, to the
extent that a transfer of Loans pursuant to this Section 13.14 would, at the
time of such transfer, result in increased costs under Section 1.10, 1.11, 2.05
or 4.04 from those being charged by the respective Lender prior to such
transfer, then the
-107-
115
Borrower shall not be obligated to pay such increased costs (although the
Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes giving rise to such increased costs after
the date of the respective transfer).
13.15 Limitation on Additional Amounts, etc. Notwithstanding
anything to the contrary contained in Section 1.10, 1.11, 2.05 or 4.04 of this
Agreement, unless a Lender gives notice to the Borrower that it is obligated to
pay an amount under the respective Section within six months after the date the
Lender incurs the respective increased costs, Taxes, loss, expense or liability,
reduction in amounts received or receivable or reduction in return on capital,
then such Lender shall only be entitled to be compensated for such amount by the
Borrower pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the case may be,
to the extent the costs, Taxes, loss, expense or liability, reduction in amounts
received or receivable or reduction in return on capital are incurred or
suffered on or after the date which occurs six months prior to such Lender
giving notice to the Borrower that it is obligated to pay the respective amounts
pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the case may be; provided
that if the circumstances giving rise to such claims have a retroactive effect,
then such six month period shall be extended to include the period of such
retroactive effect. This Section 13.15 shall have no applicability to any
Section of this Agreement other than said Sections 1.10, 1.11, 2.05 and 4.04.
13.16 Confidentiality. (a) Subject to the provisions of clause
(b) of this Section 13.16, each Lender agrees that it will use its best efforts
not to disclose without the prior consent of Parent, Holdings or the Borrower
(other than to its employees, officers, directors, auditors, advisors or counsel
or to another Lender if the Lender or such Lender's holding or parent company in
its sole discretion determines that any such party should have access to such
information, provided such Persons shall be subject to the provisions of this
Section 13.16 to the same extent as such Lender) any information with respect to
Parent or any of its Subsidiaries which is now or in the future furnished
pursuant to this Agreement or any other Credit Document and which is designated
by either Parent, Holdings or the Borrower to the Lenders in writing as
confidential, provided that any Lender may disclose any such information (a) as
has become generally available to the public, (b) as may be required or
appropriate in any report, statement or testimony submitted to any municipal,
state or Federal regulatory body having or claiming to have jurisdiction over
such Lender or to the Federal Reserve Board or the Federal Deposit Insurance
Corporation or similar organizations (whether in the United States or elsewhere)
or their successors or to the National Association of Insurance Commissioners,
(c) as may be required or appropriate in respect to any summons or subpoena or
in connection with any litigation, (d) in order to comply with any law, order,
regulation or ruling applicable to such Lender, (e) to the Administrative Agent
or the Collateral Agent and (f) to any prospective or actual transferee or
participant in connection with any contemplated transfer or participation of any
of the Notes or Commitments or any interest therein by such Lender, provided
that such prospective transferee agrees to abide by the provisions of this
Section 13.16.
(b) Each of Parent, Holdings and the Borrower hereby
acknowledges and agrees that each Lender may share with any of its affiliates
any information related to Parent or any of its Subsidiaries (including, without
limitation, any nonpublic customer information regarding the
-108-
116
creditworthiness of Parent and its Subsidiaries, provided such Persons shall be
subject to the provisions of this Section 13.16 to the same extent as such
Lender).
13.17 Register. The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent, solely for purposes of
this Section 13.17, to maintain a register (the "Register") on which it will
record the Commitments from time to time of each of the Lenders, the Loans made
by each of the Lenders and each repayment in respect of the principal amount of
the Loans of each Lender. Failure to make any such recordation, or any error in
such recordation shall not affect the Borrower's obligations in respect of such
Loans. With respect to any Lender, the transfer of the Commitments of such
Lender and the rights to the principal of, and interest on, any Loan made
pursuant to such Commitments shall not be effective until such transfer is
recorded on the Register maintained by the Administrative Agent with respect to
ownership of such Commitments and Loans and prior to such recordation all
amounts owing to the transferor with respect to such Commitments and Loans shall
remain owing to the transferor. The registration of assignment or transfer of
all or part of any Commitments and Loans shall be recorded by the Administrative
Agent on the Register only upon the acceptance by the Administrative Agent of a
properly executed and delivered Assignment and Assumption Agreement pursuant to
Section 13.04(b). Coincident with the delivery of such an Assignment and
Assumption Agreement to the Administrative Agent for acceptance and registration
of assignment or transfer of all or part of a Loan, or as soon thereafter as
practicable, the assigning or transferor Lender shall surrender the Note
evidencing such Loan, and thereupon one or more new Notes in the same aggregate
principal amount shall be issued to the assigning or transferor Lender and/or
the new Lender. The Borrower agrees to indemnify the Administrative Agent from
and against any and all losses, claims, damages and liabilities of whatsoever
nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its duties under this Section 13.17.
13.18 Designated Senior Indebtedness. Each Credit Party hereby
designates its obligations under this Agreement and the other Credit Documents
as "Designated Senior Indebtedness" for purposes of, and as defined in any
indenture relating to subordinated Indebtedness (including Existing
Indebtedness) which provides for the designation of senior indebtedness.
SECTION 14. Parents Guaranty.
14.01 The Guaranty. In order to induce the Lenders to enter
into this Agreement and to extend credit hereunder and in recognition of the
direct benefits to be received by each Parent Guarantor from the proceeds of the
Loans and the issuance of the Letters of Credit and to induce the Lenders or any
of their respective Affiliates to enter into Interest Rate Protection
Agreements, each Parent Guarantor hereby agrees with the Lenders as follows:
each Parent Guarantor hereby, jointly and severally, unconditionally and
irrevocably guarantees as primary obligor and not merely as surety the full and
prompt payment when due, whether upon maturity, by acceleration or otherwise, of
any and all of the Guaranteed Obligations of the Borrower to the Secured
Creditors. If any or all of the Guaranteed Obligations of the Borrower to the
Secured Creditors becomes due and payable hereunder, each Parent Guarantor
unconditionally, jointly
-109-
117
and severally, promises to pay such indebtedness to the Secured Creditors, or
order, on demand, together with any and all reasonable expenses which may be
incurred by the Administrative Agent or the Secured Creditors in collecting any
of the Guaranteed Obligations. All payments made by each Parent Guarantor under
this Guaranty shall be made on the same basis as payments by the Borrower under
Sections 4.03 and 4.04.
14.02 Bankruptcy. Additionally, each Parent Guarantor, jointly
and severally, unconditionally and irrevocably guarantees the payment of any and
all of the Guaranteed Obligations of the Borrower to the Secured Creditors
whether or not then due or payable by the Borrower upon the occurrence in
respect of the Borrower of any of the events specified in Section 10.05, and
unconditionally and irrevocably, jointly and severally, promises to pay such
Guaranteed Obligations to the Secured Creditors, or order, on demand, in lawful
money of the United States.
14.03 Nature of Liability. (a) The liability of each Parent
Guarantor hereunder is exclusive and independent of any security for or other
guaranty of the Guaranteed Obligations of the Borrower whether executed by such
Parent Guarantor, any other guarantor or by any other party, and the liability
of each Parent Guarantor hereunder shall not be affected or impaired by (i) any
direction as to application of payment by the Borrower or by any other party, or
(ii) any other continuing or other guaranty, undertaking or maximum liability of
a guarantor or of any other party as to the Guaranteed Obligations of the
Borrower, or (iii) any payment on or in reduction of any such other guaranty or
undertaking, or (iv) any dissolution, termination or increase, decrease or
change in personnel by the Borrower, or (v) any payment made to the
Administrative Agent or the Secured Creditors on the Guaranteed Obligations
which the Administrative Agent or such Secured Creditors repay to the Borrower
pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and each Parent Guarantor waives
any right to the deferral or modification of its obligations hereunder by reason
of any such proceeding.
(b) If claim is ever made upon the Administrative Agent or any
Secured Creditor for repayment or recovery of any amount or amounts received in
payment or on account of any of the Guaranteed Obligations and any of the
aforesaid payees repays all or part of said amount by reason of (i) any
judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property or (ii) any settlement or
compromise of any such claim effected by such payee with any such claimant
(including the Borrower), then and in such event each Parent Guarantor agrees
that any such judgment, decree, order, settlement or compromise shall be binding
upon such Parent Guarantor, notwithstanding any revocation hereof or other
instrument evidencing any liability of the Borrower, and each Parent Guarantor
shall be and remain jointly and severally liable to the aforesaid payees
hereunder for the amount so repaid or recovered to the same extent as if such
amount had never originally been received by any such payee.
14.04 Independent Obligation. The obligations of each Parent
Guarantor hereunder are independent of the obligations of any other guarantor or
the Borrower, and a separate action or actions may be brought and prosecuted
against each Parent Guarantor whether
-110-
118
or not action is brought against any other guarantor or the Borrower and whether
or not any other guarantor or the Borrower be joined in any such action or
actions. Each Parent Guarantor waives, to the fullest extent permitted by law,
the benefit of any statute of limitations affecting its liability hereunder or
the enforcement thereof. Any payment by the Borrower or other circumstance which
operates to toll any statute of limitations as to the Borrower shall operate to
toll the statute of limitations as to such Parent Guarantor. This Guaranty is a
continuing one and all liabilities to which it applies or may apply under the
terms hereof shall be conclusively presumed to have been created in reliance
hereon.
14.05 Authorization. Each Parent Guarantor authorizes the
Administrative Agent and the Secured Creditors without notice or demand (except
as shall be required by applicable statute and cannot be waived), and without
affecting or impairing its liability hereunder, from time to time to:
(a) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew, increase, accelerate or
alter, any of the Guaranteed Obligations (including any increase or
decrease in the rate of interest thereon), any security therefor, or
any liability incurred directly or indirectly in respect thereof, and
the Guaranty herein made shall apply to the Guaranteed Obligations as
so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any
of those hereunder) incurred directly or indirectly in respect thereof
or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against the
Borrower or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers,
guarantors, the Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or
hereof, and may subordinate the payment of all or any part thereof to
the payment of any liability (whether due or not) of the Borrower to
its creditors other than the Lenders;
(f) apply any sums by whomsoever paid or howsoever realized to
any liability or liabilities of the Borrower to the Secured Creditors
regardless of what liability or liabilities of the Borrower remain
unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, this Agreement or any of the instruments or agreements
referred to herein, or otherwise
-111-
119
amend, modify or supplement this Agreement or any of such other
instruments or agreements; and/or
(h) take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or equitable
discharge of any Parent Guarantor from its liabilities under this
Guaranty.
14.06 Reliance. It is not necessary for the Administrative
Agent or the Secured Creditors to inquire into the capacity or powers of Parent
or its Subsidiaries or the officers, directors, partners or agents acting or
purporting to act on its behalf, and any Guaranteed Obligations made or created
in reliance upon the professed exercise of such powers shall be guaranteed
hereunder.
14.07 Subordination. Any of the indebtedness of the Borrower
now or hereafter owing to any Parent Guarantor is hereby subordinated to the
Guaranteed Obligations of the Borrower owing to the Administrative Agent and the
Secured Creditors; and if the Administrative Agent so requests at a time when an
Event of Default exists, all such indebtedness of the Borrower to such Parent
Guarantor shall be collected, enforced and received by such Parent Guarantor for
the benefit of the Secured Creditors and be paid over to the Administrative
Agent on behalf of the Secured Creditors on account of the Guaranteed
Obligations of the Borrower to the Secured Creditors, but without affecting or
impairing in any manner the liability of such Parent Guarantor under the other
provisions of this Guaranty. Prior to the transfer by any Parent Guarantor of
any note or negotiable instrument evidencing any of the indebtedness of the
Borrower to such Parent Guarantor, such Parent Guarantor shall xxxx such note or
negotiable instrument with a legend that the same is subject to this
subordination. The provisions of this Section 14.07 (and any claims of each
Parent Guarantor as described above) are subject to the provisions of Section
14.08(c) and (d).
14.08 Waiver. (a) Each Parent Guarantor waives any right
(except as shall be required by applicable statute and cannot be waived) to
require the Administrative Agent or the Secured Creditors to (i) proceed against
the Borrower, any other guarantor or any other party, (ii) proceed against or
exhaust any security held from the Borrower, any other guarantor or any other
party or (iii) pursue any other remedy in the Administrative Agent's or the
Secured Creditors' power whatsoever. Each Parent Guarantor waives any defense
based on or arising out of any defense of the Borrower, any other guarantor or
any other party, other than payment in full of the Guaranteed Obligations, based
on or arising out of the disability of the Borrower, any other guarantor or any
other party, or the unenforceability of the Guaranteed Obligations or any part
thereof from any cause, or the cessation from any cause of the liability of the
Borrower other than payment in full of the Guaranteed Obligations. The
Administrative Agent and the Secured Creditors may, at their election, foreclose
on any security held by the Administrative Agent, the Collateral Agent or the
Secured Creditors by one or more judicial or nonjudicial sales, whether or not
every aspect of any such sale is commercially reasonable (to the extent such
sale is permitted by applicable law, including, but not limited to, the
Communications Act), or exercise any other right or remedy the Administrative
Agent and the Secured Creditors may have against the Borrower or any other
party, or any security, without affecting or impairing in any way the
-112-
120
liability of any Parent Guarantor hereunder except to the extent the Guaranteed
Obligations have been paid. Each Parent Guarantor waives any defense arising out
of any such election by the Administrative Agent and the Secured Creditors, even
though such election operates to impair or extinguish any right of reimbursement
or subrogation or other right or remedy of such Parent Guarantor against any
Borrower or any other party or any security.
(b) Each Parent Guarantor waives all presentments, demands for
performance, protests and notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Guaranty, and notices of the existence, creation or incurring of new or
additional Guaranteed Obligations. Each Parent Guarantor assumes all
responsibility for being and keeping itself informed of the Borrower's financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations and the nature, scope and extent of the
risks which such Parent Guarantor assumes and incurs hereunder, and agrees that
the Administrative Agent and the Secured Creditors shall have no duty to advise
any Parent Guarantor of information known to them regarding such circumstances
or risks.
(c) Each Parent Guarantor understands that to the extent the
Guaranteed Obligations are secured by Real Property, each Parent Guarantor shall
be liable for the full amount of the liability hereunder notwithstanding
foreclosure on any such Real Property by trustee sale or any other reason
impairing such Parent Guarantor's or any secured creditors' right to proceed
against the Borrower. Each Parent Guarantor hereby waives, to the fullest extent
permitted by applicable laws, all rights and benefits under Sections 580a, 580b,
580d and 726 of the California Code of Civil Procedure. In addition, each Parent
Guarantor hereby waives, to the fullest extent permitted by applicable laws,
without limiting the generality of the foregoing or any other provision hereof,
all rights and benefits which might otherwise be available to such Parent
Guarantor under California Civil Code Sections 2787 through 2855 inclusive, 2899
and 3433.
14.09 Nature of Liability. It is the desire and intent of each
Parent Guarantor and the Secured Creditors that this Guaranty shall be enforced
against such Parent Guarantor to the fullest extent permissible under the laws
and public policies applied in each jurisdiction in which enforcement is sought.
If, however, and to the extent that, the obligations of any Parent Guarantor
under this Guaranty shall be adjudicated to be invalid or unenforceable for any
reason (including, without limitation, because of any applicable state or
federal law relating to fraudulent conveyances or transfers), then the amount of
the Guaranteed Obligations of such Parent Guarantor shall be deemed to be
reduced and such Parent Guarantor shall pay the maximum amount of the Guaranteed
Obligations which would be permissible under applicable law.
-113-
121
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
000 Xxxxxxxx Xxxxxx AMFM HOLDINGS INC.
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn.: Chief Financial Officer
Telephone: (000) 000-0000 By: /s/ Xxxxx Xxxxxxxxx
Telecopy: (000) 000-0000 --------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
with a copy to:
Hicks, Muse, Xxxx & Xxxxx
Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn.: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
000 Xxxxxxxx Xxxxxx CAPSTAR BROADCASTING PARTNERS, INC.
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn.: Chief Financial Officer
Telephone: (000) 000-0000 By: /s/ Xxxxx Xxxxxxxxx
Telecopy: (000) 000-0000 --------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
with a copy to:
Hicks, Muse, Xxxx & Xxxxx
Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn.: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
122
000 Xxxxxxxx Xxxxxx AMFM OPERATING INC.
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn.: Chief Financial Officer
Telephone: (000) 000-0000 By: /s/ Xxxxx Xxxxxxxxx
Telecopy: (000) 000-0000 --------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
with a copy to: CAPSTAR BROADCASTING PARTNERS, INC.
Hicks, Muse, Xxxx & Xxxxx
Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000 By: /s/ Xxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000 --------------------------------
Attn.: Xxxxx Xxxxxxx Name: Xxxxx Xxxxxxxxx
Telephone: (000) 000-0000 Title: Vice President
Telecopy: (000) 000-0000
123
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By: /s/ Xxxxx XxXxxxx
-------------------------------------
Name: Xxxxx XxXxxxx
Title: Director
124
BANK OF AMERICA, N.A.,
Individually and as Documentation Agent
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
125
TORONTO DOMINION (TEXAS), INC.,
Individually and as Documentation Agent
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
126
THE CHASE MANHATTAN BANK,
Individually and as Syndication Agent
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
000
XXXX XX XXXXXXXX, XXXXXXX BRANCH
By: /s/ X. X. Xxxxxx
-------------------------------------
Name: X. X. Xxxxxx
Title: Managing Director
000
XXX XXXX XX XXXX XXXXXX
By: /s/ P. A. Xxxxxxxxxxxxx
-------------------------------------
Name: P. A. Xxxxxxxxxxxxx
Title: Authorized Signatory
129
FLEET NATIONAL BANK
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Director
130
BARCLAYS BANK PLC
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Associate Director
131
THE DAI-ICHI KANGYO BANK, LIMITED
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
000
XXXXX XXXX XX XXXXXXXXXX, N.A.
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
133
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By: /s/ Kheil X. XxXxxxxx
-------------------------------------
Name: Kheil X. XxXxxxxx
Title: Vice President
By: /s/ Pascal Kobemba
-------------------------------------
Name: Pascal Kobemba
Title: Vice President
134
ABN AMRO BANK, N.V.
By: /s/ Xxx Xxxxxxxxxxxxx
-------------------------------------
Name: Xxx Xxxxxxxxxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
135
BANCO ESPIRITO SANTO, S.A.,
NASSAU BRANCH
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
136
COMPAGNIE FINANCIERE DE CIC
ET DE L'UNION EUROPEENNE
By: /s/ Xxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
137
LLOYDS TSB BANK PLC
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Director-Project Finance (USA)
By: /s/ Xxx Xxxxxxx
-----------------------------------------
Name: Xxx Xxxxxxx
Title: Vice President Acquisition Finance
138
THE MITSUBISHI TRUST AND BANKING CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Vice President
139
NATIONAL CITY BANK CORPORATION CLEVELAND
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
140
THE SANWA BANK, LIMITED
By: /s/ Xxxxx Xxxx
-------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
141
XXXXX FARGO BANK (TEXAS), N.A.
By: /s/ Connor Duffey
-------------------------------------
Name: Connor Duffey
Title: Vice President
142
MELLON BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice President
143
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Principal
144
THE FUJI BANK, LTD.
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President & Manager
000
XXXXX XXXX XX XXXXXX
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Manager
146
XXXXXX BANK PLC
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
By: /s/ Xxxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Vice President
147
FIRST HAWAIIAN BANK
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Assistant Vice President
