Exhibit 10.3
$135,000,000
CREDIT AGREEMENT
AMONG
SPANISH BROADCASTING SYSTEM, INC.,
AS BORROWER,
THE LENDERS
FROM TIME TO TIME PARTY HERETO,
XXXXXXX XXXXX, XXXXXX XXXXXX & XXXXX, INCORPORATED
AND
DEUTSCHE BANK SECURITIES INC.
AS CO-DOCUMENTATION AGENTS,
AND
XXXXXX COMMERCIAL PAPER INC.,
AS SYNDICATION AGENT AND AS ADMINISTRATIVE AGENT
DATED AS OF OCTOBER 30, 2003
===============================================================================
XXXXXX BROTHERS INC.
SOLE ADVISOR, SOLE LEAD ARRANGER AND SOLE BOOK RUNNER
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS....................................................................................1
1.1 Defined Terms..................................................................................1
1.2 Other Definitional Provisions.................................................................26
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS...............................................................26
2.1 Term Loan Commitments.........................................................................26
2.2 Procedure for Term Loan Borrowing.............................................................26
2.3 Repayment of Term Loans.......................................................................27
2.4 Revolving Credit Commitments..................................................................27
2.5 Procedure for Revolving Credit Borrowing......................................................27
2.6 Swing Line Commitment.........................................................................28
2.7 Procedure for Swing Line Borrowing; Refunding of Swing Line Loans.............................28
2.8 Repayment of Loans; Evidence of Indebtedness..................................................29
2.9 Commitment Fees, etc..........................................................................30
2.10 Termination or Reduction of Revolving Credit Commitments......................................30
2.11 Optional Prepayments..........................................................................30
2.12 Mandatory Prepayments and Commitment Reductions...............................................31
2.13 Conversion and Continuation Options...........................................................33
2.14 Minimum Amounts and Maximum Number of Eurodollar Tranches.....................................33
2.15 Interest Rates and Payment Dates..............................................................33
2.16 Computation of Interest and Fees..............................................................34
2.17 Inability to Determine Interest Rate..........................................................34
2.18 Pro Rata Treatment and Payments...............................................................35
2.19 Requirements of Law...........................................................................36
2.20 Taxes.........................................................................................37
2.21 Indemnity.....................................................................................39
2.22 Illegality....................................................................................39
2.23 Change of Lending Office......................................................................39
2.24 Replacement of Lenders under Certain Circumstances............................................39
SECTION 3. LETTERS OF CREDIT.............................................................................40
3.1 L/C Commitment................................................................................40
3.2 Procedure for Issuance of Letter of Credit....................................................40
3.3 Fees and Other Charges........................................................................40
3.4 L/C Participations............................................................................41
3.5 Reimbursement Obligation of the Borrower......................................................42
3.6 Obligations Absolute..........................................................................42
-i-
TABLE OF CONTENTS
(continued)
Page
----
3.7 Letter of Credit Payments.....................................................................42
3.8 Applications..................................................................................43
SECTION 4. REPRESENTATIONS AND WARRANTIES................................................................43
4.1 Financial Condition...........................................................................43
4.2 No Change.....................................................................................43
4.3 Existence; Compliance with Law................................................................43
4.4 Power; Authorization; Enforceable Obligations.................................................44
4.5 No Legal Bar..................................................................................44
4.6 No Material Litigation........................................................................44
4.7 No Default....................................................................................44
4.8 Ownership of Property; Liens..................................................................44
4.9 Intellectual Property.........................................................................45
4.10 Taxes.........................................................................................45
4.11 Federal Regulations...........................................................................45
4.12 Labor Matters.................................................................................45
4.13 ERISA.........................................................................................45
4.14 Investment Company Act; Other Regulations.....................................................46
4.15 Subsidiaries..................................................................................46
4.16 Use of Proceeds...............................................................................46
4.17 Environmental Matters.........................................................................47
4.18 Accuracy of Information, etc..................................................................47
4.19 Security Documents............................................................................48
4.20 Solvency......................................................................................48
4.21 Senior Indebtedness...........................................................................48
4.22 Insurance.....................................................................................49
4.23 Permits and Licenses..........................................................................49
SECTION 5. CONDITIONS PRECEDENT..........................................................................50
5.1 Conditions to Initial Extension of Credit.....................................................50
5.2 Conditions to Each Extension of Credit........................................................52
SECTION 6. AFFIRMATIVE COVENANTS.........................................................................53
6.1 Financial Statements..........................................................................53
6.2 Certificates; Other Information...............................................................53
-ii-
TABLE OF CONTENTS
(continued)
Page
----
6.3 Payment of Obligations........................................................................55
6.4 Conduct of Business and Maintenance of Existence, FCC Licenses, etc...........................55
6.5 Maintenance of Property; Insurance............................................................55
6.6 Inspection of Property; Books and Records; Discussions........................................56
6.7 Notices.......................................................................................56
6.8 Environmental Laws............................................................................57
6.9 Broadcast License Subsidiaries................................................................57
6.10 Additional Collateral, etc....................................................................58
6.11 Use of Proceeds...............................................................................60
6.12 Further Assurances............................................................................60
6.13 Corporate Structure...........................................................................60
SECTION 7. NEGATIVE COVENANTS............................................................................60
7.1 Financial Condition Covenants.................................................................60
7.2 Limitation on Indebtedness....................................................................63
7.3 Limitation on Liens...........................................................................64
7.4 Limitation on Fundamental Changes.............................................................65
7.5 Limitation on Disposition of Property.........................................................65
7.6 Limitation on Restricted Payments.............................................................66
7.7 Limitation on Capital Expenditures............................................................67
7.8 Limitation on Investments.....................................................................67
7.9 Limitation on Subordinated Indebtedness.......................................................68
7.10 Limitation on Transactions with Affiliates....................................................69
7.11 Limitation on Sales and Leasebacks............................................................69
7.12 Limitation on Changes in Fiscal Periods.......................................................69
7.13 Limitation on Negative Pledge Clauses.........................................................69
7.14 Limitation on Restrictions on Subsidiary Distributions, etc...................................70
7.15 Limitation on Lines of Business...............................................................70
7.16 Broadcast License Subsidiaries................................................................70
7.17 Amendment of Certain Documents................................................................70
SECTION 8. EVENTS OF DEFAULT.............................................................................71
SECTION 9. THE AGENTS and ARRANGER.......................................................................74
9.1 Appointment...................................................................................74
-iii-
TABLE OF CONTENTS
(continued)
Page
----
9.2 Delegation of Duties..........................................................................74
9.3 Exculpatory Provisions........................................................................74
9.4 Reliance by Agents............................................................................75
9.5 Notice of Default.............................................................................75
9.6 Non-Reliance on Agents and Other Lenders......................................................75
9.7 Indemnification...............................................................................76
9.8 Arranger and Agents in Their Individual Capacities............................................76
9.9 Successor Administrative Agent................................................................76
9.10 Authorization to Release Liens................................................................77
9.11 The Arranger, Syndication Agent and Co-Documentation Agents...................................77
SECTION 10. MISCELLANEOUS.................................................................................77
10.1 Amendments and Waivers........................................................................77
10.2 Notices.......................................................................................78
10.3 No Waiver; Cumulative Remedies................................................................79
10.4 Survival of Representations and Warranties....................................................79
10.5 Payment of Expenses...........................................................................79
10.6 Successors and Assigns; Participations and Assignments........................................80
10.7 Adjustments; Set-off..........................................................................82
10.8 Counterparts..................................................................................83
10.9 Severability..................................................................................83
10.10 Integration...................................................................................83
10.11 GOVERNING LAW.................................................................................83
10.12 Submission To Jurisdiction; Waivers...........................................................83
10.13 Acknowledgments...............................................................................84
10.14 Confidentiality...............................................................................84
10.15 Release of Collateral and Guarantee Obligations...............................................85
10.16 Accounting Changes............................................................................85
10.17 Delivery of Lender Addenda....................................................................85
10.18 Construction..................................................................................86
10.19 WAIVERS OF JURY TRIAL.........................................................................86
10.20 Designated Senior Debt........................................................................86
-iv-
TABLE OF CONTENTS
(CONTINUED)
SCHEDULES:
4.3 Compliance With Law
4.6 Litigation
4.9 Intellectual Property
4.10 Certain Existing Liens
4.15 Subsidiaries
4.16(a) Sources and Uses Table
4.19 UCC Filing Jurisdictions
5.1(m) Real Property Mortgages at Closing
7.2(d) Existing Indebtedness
7.3(f) Existing Liens
7.8(g) Existing Investments
7.10 Existing Affiliate Transactions
7.13 Existing Agreements with Negative Pledge Clauses
ANNEXES
Annex A - Pricing Grid
EXHIBITS
A Form of Compliance and Pricing Certificate
B Form of Guarantee and Collateral Agreement
C Form of Lender Addendum
D Form of Notice of Borrowing
E Form of Solvency Certificate
F-1 Form of Term Note
F-2 Form of Revolving Credit Note
F-3 Form of Swing Line Note
G Form of Exemption Certificate
H Form of Closing Certificate
J Form of Assignment and Acceptance
-v-
CREDIT AGREEMENT, dated as of October 30, 2003, among SPANISH
BROADCASTING SYSTEM, INC., a Delaware corporation (the "BORROWER"), the several
banks and other financial institutions or entities from time to time party to
this Agreement (the "LENDERS"), XXXXXXX XXXXX, XXXXXX XXXXXX & XXXXX,
INCORPORATED and DEUTSCHE BANK SECURITIES INC., as co-documentation agents (in
such capacity, the "CO-DOCUMENTATION AGENTS"), XXXXXX COMMERCIAL PAPER INC., as
syndication agent (in such capacity, the "SYNDICATION Agent") and XXXXXX
COMMERCIAL PAPER INC., as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders make (a)
a term loan credit facility available to the Borrower in order to (i) finance
the KXOL Acquisition (as hereinafter defined), (ii) pay costs and expenses
incurred in connection with the Facilities and the Borrower's issuance of the
Preferred Stock (as hereinafter defined), (iii) provide excess cash to the
Borrower and (iv) fund working capital needs and general corporate purposes of
the Borrower and its Subsidiaries and (b) a revolving credit facility available
to the Borrower for the working capital needs and general corporate purposes of
the Borrower and its Subsidiaries; and
WHEREAS, the Lenders are willing to make such credit
facilities available upon and subject to the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the premises and the
agreements hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed
in this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"ACQUIRED BUSINESS": as defined in the definition of
"ACQUISITION" set forth in this Section 1.1.
"ACQUISITION": any acquisition, consisting of a single
transaction or a series of related transactions, by the Borrower or any
one or more of its Wholly Owned Subsidiaries of any Capital Stock of,
or all or a substantial part of the assets of, or of a business unit or
division of, any Person engaged in a Permitted Business that is
organized under the laws of the United States or any state or territory
thereof (such Person, assets, business unit or division, the "ACQUIRED
BUSINESS").
"ACQUISITION CONSIDERATION": as defined in the definition of
"PERMITTED ACQUISITIONS" set forth in this Section 1.1.
"ACQUISITION DOCUMENTATION": the agreements governing or
relating to any Permitted Acquisition and all schedules, exhibits,
annexes and amendments thereto and all side letters and agreements
affecting the terms thereof or entered into in connection therewith, in
each case, as amended supplemented, replaced or otherwise modified from
time to time.
"ADMINISTRATIVE AGENT": as defined in the preamble hereto.
"AFFILIATE": as to any Person, any other Person that, directly
or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, "control"
of a Person means the power, directly or indirectly, either to (a) vote
10% or more of the securities having ordinary voting power for the
election of directors (or persons performing similar functions) of such
Person or (b) direct or cause the direction of the management and
policies of such Person, whether by contract or otherwise.
"AGENTS": the collective reference to the Administrative
Agent, the Syndication Agent and the Co-Documentation Agents.
"AGGREGATE EXPOSURE": with respect to any Lender at any time,
an amount equal to (a) prior to termination of the Term Loan
Commitments, the aggregate amount of such Lender's Commitments then in
effect and (b) thereafter, the sum of (i) the principal amount of such
Lender's Term Loans then outstanding and (ii) the amount of such
Lender's Revolving Credit Commitment then in effect or, if the
Revolving Credit Commitments have terminated, the principal amount of
such Lender's Revolving Extensions of Credit then outstanding.
"AGGREGATE EXPOSURE PERCENTAGE": with respect to any Lender at
any time, the ratio (expressed as a percentage) of such Lender's
Aggregate Exposure at such time to the Aggregate Exposure of all
Lenders at such time.
"AGREEMENT": this Credit Agreement, as amended, supplemented,
replaced or otherwise modified from time to time.
"APPLICABLE MARGIN": for each Type of Loan, the rate per annum
set forth under the relevant column heading below:
Base Rate Loans Eurodollar Loans
--------------- ----------------
Term Loans 2.25% 3.25%
Revolving Credit Loans 2.00% 3.00%
and Swing Line Loans
PROVIDED that on and after the Grid Effective Date, the Applicable
Margin with respect to Revolving Credit Loans and Swing Line Loans will
be determined pursuant to the Pricing Grid.
"APPLICATION": an application, in such form as the Issuing
Lender may specify from time to time, requesting the Issuing Lender to
open a Letter of Credit.
"ARRANGER": as defined in Section 9.11.
"ASSET SALE": any Disposition of Property or series of related
Dispositions of Property (excluding any such Disposition permitted by
clause (a), (b), (c) or (d) of Section 7.5) that yields gross proceeds
to the Borrower or any of its Subsidiaries (valued at the initial
principal amount thereof in the case of non-cash proceeds consisting of
notes or other debt securities and valued at fair market value in the
case of other non-cash proceeds) in excess of $250,000.
"ASSIGNEE": as defined in Section 10.6(c).
"ASSIGNOR": as defined in Section 10.6(c).
-2-
"AVAILABLE REVOLVING CREDIT COMMITMENT": as to any Revolving
Credit Lender at any time, an amount equal to the excess, if any, of
(a) such Lender's Revolving Credit Commitment then in effect over (b)
such Lender's Revolving Extensions of Credit then outstanding; PROVIDED
that in calculating any Lender's Revolving Extensions of Credit for the
purpose of determining such Lender's Available Revolving Credit
Commitment pursuant to Section 2.9(a), the aggregate principal amount
of Swing Line Loans then outstanding shall be deemed to be zero.
"BASE RATE": for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/100 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. For purposes hereof: "PRIME
RATE": the rate publicly quoted from time to time by THE WALL STREET
JOURNAL as the "base rate on corporate loans posted by at least 75% of
the nation's 30 largest banks" (or, if THE WALL STREET JOURNAL ceases
quoting a base rate of the type described, the highest per annum rate
of interest published by the Federal Reserve Board in Federal Reserve
statistical release H.15 (519) entitled "Selected Interest Rates" as
the Bank prime loan rate or its equivalent).
"BASE RATE LOANS": Loans for which the applicable rate of
interest is based upon the Base Rate.
"BENEFITED LENDER": as defined in Section 10.7.
"BOARD": the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"BORROWER": as defined in the preamble hereto.
"BORROWING DATE": any Business Day specified by the Borrower
as a date on which the Borrower requests the relevant Lender(s) to make
Loans hereunder.
"BROADCAST LICENSE SUBSIDIARY": a Wholly Owned Subsidiary of
the Borrower that owns no material assets other than FCC Licenses and
related rights and has no liabilities other than (i) liabilities
arising under the Guarantee and Collateral Agreement and (ii) trade
payables incurred in the ordinary course of business and tax
liabilities incidental to ownership of such rights.
"BUSINESS DAY": (i) for all purposes other than as covered by
clause (ii) below, a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by
law to close 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) and
which is also a day for trading by and between banks in Dollar deposits
in the interbank eurodollar market.
"CAPITAL EXPENDITURES": for any period, with respect to any
Person, the aggregate of all expenditures (other than those made in
payment of purchase consideration for Permitted Acquisitions) by such
Person and its Subsidiaries for the acquisition or leasing (pursuant to
a capital lease) of fixed or capital assets or additions to equipment
(including replacements, capitalized repairs and improvements during
such period) that should be capitalized in conformity with GAAP on a
consolidated balance sheet of such Person and its Subsidiaries.
"CAPITAL LEASE OBLIGATIONS": as to any Person, the obligations
of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or
-3-
personal property, or a combination thereof, which obligations are
required to be classified and accounted for as capital leases on a
balance sheet of such Person in conformity with GAAP, and, for the
purposes of this Agreement, the amount of such obligations at any time
shall be the capitalized amount thereof at such time determined in
conformity with GAAP.
"CAPITAL STOCK": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership or profit interests in a
Person (other than a corporation) and any and all warrants, rights or
options to purchase any of the foregoing.
"CASH EQUIVALENTS": (a) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or
issued by any agency thereof and backed by the full faith and credit of
the United States, in each case maturing within one year from the date
of acquisition; (b) certificates of deposit, time deposits, eurodollar
time deposits or overnight bank deposits having maturities of six
months or less from the date of acquisition issued by any Lender or by
any commercial bank organized under the laws of the United States of
America or any state thereof having combined capital and surplus of not
less than $500,000,000; (c) commercial paper of an issuer rated at
least A-1 by Standard & Poor's Ratings Services ("S&P") or P-1 by
Xxxxx'x Investors Service, Inc. ("MOODY'S"), or carrying an equivalent
rating by a nationally recognized rating agency, if both of the two
named rating agencies cease publishing ratings of commercial paper
issuers generally, and maturing within six months from the date of
acquisition; (d) repurchase obligations of any Lender or of any
commercial bank satisfying the requirements of clause (b) of this
definition, having a term of not more than 30 days with respect to
securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the
date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or
foreign government (as the case may be) are rated at least A by S&P or
A by Xxxxx'x; (f) securities with maturities of six months or less from
the date of acquisition backed by standby letters of credit issued by
any Lender or any commercial bank satisfying the requirements of clause
(b) of this definition; or (g) shares of money market mutual or similar
funds which invest exclusively in assets satisfying the requirements of
clauses (a) through (f) of this definition.
"CERTIFICATES OF DESIGNATION": the Borrower's Certificate of
Designations setting forth the Voting Power, Preferences and Relative,
Participating, Optional and Other Special Rights and Qualifications,
Limitations and Restrictions of the Borrower's 10 3/4% Series A
Cumulative Exchangeable Redeemable Preferred Stock and the Certificate
of Designations setting forth the Voting Power, Preferences and
Relative, Participating, Optional and Other Special Rights and
Qualifications, Limitations and Restrictions of the Borrower's 10 3/4%
Series B Cumulative Exchangeable Redeemable Preferred Stock, as the
case may be, each as filed with the Secretary of State of Delaware on
October 29, 2003, as in effect on the Closing Date or as amended,
modified or supplemented in accordance with the terms of Borrower's
certificate of incorporation, its terms, the terms of applicable
Delaware law and the terms of this Agreement.
"CLOSING DATE": October 30 2003.
"CODE": the Internal Revenue Code of 1986, as amended from
time to time.
"CO-DOCUMENTATION AGENTS": as defined in the preamble hereto.
-4-
"COLLATERAL": all Property of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any
Security Document, including the Intellectual Property Collateral.
"COMMITMENT": as to any Lender, the sum of the Term Loan
Commitment and the Revolving Credit Commitment of such Lender.
"COMMITMENT FEE RATE": 0.5% per annum.
"COMMITMENT LETTER": the commitment letter, dated October 8,
2003, by and among the Administrative Agent, the Arranger, the
Co-Documentation Agents, Xxxxxxx Xxxxx Capital Corporation, Deutsche
Bank Trust Company Americas and the Borrower, as amended, modified or
supplemented from time to time.
"COMMONLY CONTROLLED ENTITY": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group that
includes the Borrower and that is treated as a single employer under
Section 414 of the Code.
"COMPLIANCE AND PRICING CERTIFICATE": a certificate duly
executed by a Responsible Officer substantially in the form of Exhibit
A.
"CONFIDENTIAL INFORMATION MEMORANDUM": the information
memorandum furnished to the Persons invited in the syndication of the
Facilities to become Lenders.
"CONSOLIDATED EBITDA": of any Person for any period,
Consolidated Net Income of such Person and its Subsidiaries for such
period plus, without duplication and to the extent reflected as a
charge in the statement of such Consolidated Net Income for such
period, the sum of (a) income tax expense, (b) Consolidated Interest
Expense of such Person and its Subsidiaries, amortization or write-off
of debt discount and debt issuance costs and commissions, discounts and
other fees and charges associated with Indebtedness (including, in the
case of the Borrower, the Loans and Letters of Credit), (c)
depreciation and amortization expense, (d) amortization of intangibles
(including goodwill) and organization costs, (e) any extraordinary,
unusual or non-recurring expenses or losses (including, whether or not
otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, losses on sales of assets
outside of the ordinary course of business) and (f) any other non-cash
charges, and minus, to the extent included in the statement of such
Consolidated Net Income for such period, the sum of (i) interest income
(except to the extent deducted in determining Consolidated Interest
Expense), (ii) any extraordinary, unusual or non-recurring income or
gains (including, whether or not otherwise includable as a separate
item in the statement of such Consolidated Net Income for such period,
gains on the sales of assets outside of the ordinary course of
business) and (iii) any other non-cash income, all as determined on a
consolidated basis; PROVIDED, HOWEVER, that in calculating Consolidated
EBITDA solely for the use of such term in the definitions of
Consolidated Senior Debt Ratio and Consolidated Senior Secured Debt
Ratio for any period (i) the Consolidated EBITDA of any Person acquired
by the Borrower or any of its Subsidiaries during such period shall be
included on a pro forma basis for such period (assuming the
consummation of such acquisition and the incurrence or assumption of
any Indebtedness in connection therewith occurred on the first day of
such period) if the consolidated balance sheet of such acquired Person
and its consolidated Subsidiaries as at the end of the period preceding
the acquisition of such Person and the related consolidated statements
of income and stockholders' equity and of cash flows for the period in
respect of which Consolidated EBITDA is to be calculated (x) have been
-5-
previously provided to the Administrative Agent and the Lenders and (y)
either (1) have been reported on without a qualification arising out of
the scope of the audit by independent certified public accountants of
nationally recognized standing or (2) have been found acceptable by the
Administrative Agent and (ii) the Consolidated EBITDA of any Person
Disposed of by the Borrower or its Subsidiaries during such period
shall be excluded for such period (assuming the consummation of such
Disposition and the repayment of any Indebtedness in connection
therewith occurred on the first day of such period).
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO": for any period,
the ratio of (a) Consolidated EBITDA of the Borrower and its
Subsidiaries for such period minus (i) the aggregate amount actually
paid by the Borrower and its Subsidiaries in cash during such period on
account of Capital Expenditures (but not including any Capital
Expenditures made with the proceeds of any Reinvestment Deferred Amount
or from 50% of the Net Cash Proceeds of an issuance and sale of Capital
Stock as set forth in clause (iii)(x) of Section 7.7) and (ii)
provision for cash income taxes made by the Borrower and its
Subsidiaries on a consolidated basis in respect of such period, to (b)
Consolidated Fixed Charges for such period.
"CONSOLIDATED FIXED CHARGES": for any period, the sum (without
duplication) of (a) Consolidated Interest Expense of the Borrower and
its Subsidiaries for such period, and scheduled payments made during
such period on account of principal of Indebtedness of the Borrower or
any of its Subsidiaries (including scheduled principal payments in
respect of the Term Loans).
"CONSOLIDATED INTEREST COVERAGE RATIO": for any period, the
ratio of (a) Consolidated EBITDA of the Borrower and its Subsidiaries
for such period to (b) Consolidated Interest Expense of the Borrower
and its Subsidiaries for such period.
"CONSOLIDATED INTEREST EXPENSE": of any Person for any period,
(i) total cash interest expense (including that attributable to Capital
Lease Obligations) of such Person and its Subsidiaries for such period
on a consolidated basis with respect to all outstanding Indebtedness of
such Person and its Subsidiaries (including all commissions, discounts
and other fees and charges owed by such Person with respect to letters
of credit and bankers' acceptance financing and net costs of such
Person under Hedge Agreements in respect of interest rates to the
extent such net costs are allocable to such period in accordance with
GAAP), net of the interest income of such Person and its Subsidiaries
for such period on a consolidated basis plus (ii) cash dividends paid
on the Preferred Stock during such period; PROVIDED, HOWEVER, that for
the purposes of calculating Consolidated Interest Coverage Ratio and
Consolidated Fixed Charge Coverage Ratio for the periods ending on
March 31, 2004, June 30, 2004 and September 30, 2004, respectively,
Consolidated Interest Expense for the periods of one, two and three
fiscal quarters ending on such dates, respectively, shall be deemed to
be the amount of actual Consolidated Interest Expense for such periods
multiplied by 4.000, 2.000 and 1.334, respectively.
"CONSOLIDATED LEVERAGE RATIO": as at the last day of any
period of four consecutive fiscal quarters, the ratio of (a)
Consolidated Total Debt on such day to (b) Consolidated EBITDA for such
period.
"CONSOLIDATED NET INCOME": of any Person for any period, the
consolidated net income (or loss) of such Person and its Subsidiaries
for such period, determined on a consolidated basis in accordance with
GAAP; PROVIDED that in calculating Consolidated Net Income of the
Borrower and its Subsidiaries for any Period, there shall be excluded
(a) the income (or deficit) of any Person accrued prior to the date it
becomes a Subsidiary of the Borrower or is merged into or
-6-
consolidated with the Borrower or any of its Subsidiaries, (b) the
income (or deficit) of any Person (other than a Subsidiary of the
Borrower) in which the Borrower or any of its Subsidiaries has an
ownership interest, except to the extent that any such income is
actually received by the Borrower or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings
of any Subsidiary of the Borrower to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary is not
at the time permitted by the terms of any Contractual Obligation (other
than under any Loan Document) or Requirement of Law applicable to such
Subsidiary.
"CONSOLIDATED SENIOR DEBT": all Consolidated Total Debt, other
than Subordinated Debt.
"CONSOLIDATED SENIOR DEBT RATIO": as of the last day of any
period of four consecutive fiscal quarters, the ratio of (a)
Consolidated Senior Debt on such day to (b) Consolidated EBITDA for
such period.
"CONSOLIDATED SENIOR SECURED DEBT": all Consolidated Total
Debt that by its terms is secured by a Lien upon any Property of the
Borrower or any of its Subsidiaries, regardless of whether the value of
such collateral security is at least equal to the amount of such
Indebtedness.
"CONSOLIDATED SENIOR SECURED DEBT RATIO": as of the last day
of any period of four consecutive fiscal quarters, the ratio of (a)
Consolidated Senior Secured Debt on such day to (b) Consolidated EBITDA
for such period.
"CONSOLIDATED TOTAL DEBT": at any date, the aggregate
principal amount of all Funded Debt of the Borrower and its
Subsidiaries at such date, required to be reported on a consolidated
balance sheet prepared in accordance with GAAP.
"CONTINUING DIRECTORS": as to any Person, the directors of
such Person on the Closing Date and each other director of such Person
whose nomination for election to the board of directors of such Person
is recommended by, or whose election was approved by, at least a
majority of the then Continuing Directors or who received the vote of
each of the shareholders of such Person on the Closing Date in his or
her election by the shareholders of such Person.
"CONTRACTUAL OBLIGATION": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any
of its Property is bound.
"CONTROL AGREEMENT": each Control Agreement to be executed and
delivered by each Loan Party party thereto, substantially in the form
of Exhibit E, Exhibit F, Exhibit G, Exhibit H or Exhibit I, as the case
may be, to the Guarantee and Collateral Agreement, as the same may be
amended, supplemented, replaced or otherwise modified from time to time
in accordance with this Agreement.
"CONTROL INVESTMENT AFFILIATE": as to any Person, any other
Person that (a) directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person and (b) is organized
by such Person primarily for the purpose of making equity or debt
investments in one or more companies. For purposes of this definition,
"control" of a Person means the power, directly or indirectly, to
direct or cause the direction of the management and policies of such
Person whether by contract or otherwise.
-7-
"COPYRIGHT SECURITY AGREEMENT SUPPLEMENT": as defined in the
Guarantee and Collateral Agreement.
"DEFAULT": any of the events specified in Section 8, whether
or not any requirement set forth therein for the giving of notice, the
lapse of time, or both, has been satisfied.
"DERIVATIVES COUNTERPARTY": as defined in Section 7.6.
"DISPOSITION": with respect to any Property, and except as
otherwise provided in Sections 7.13(a)(x) and 7.15 of the Guarantee and
Collateral Agreement, any sale, lease, license, sale and leaseback,
assignment, conveyance, transfer or other disposition thereof, but not
including the issuance of Capital Stock by the Borrower; and the terms
"DISPOSE" and "DISPOSED OF" shall have correlative meanings.
"DISQUALIFIED EQUITY ISSUANCE": an issuance by the Borrower or
any of its Subsidiaries of any Disqualified Stock.
"DISQUALIFIED STOCK": any Capital Stock (or any security into
which such Capital Stock is convertible or for which it is exchangeable
at the option of the holder thereof) of the Borrower or any of its
Subsidiaries that any of them is or, upon the passage of time or the
occurrence of any event (other than an asset sale or change of
control), may become obligated to redeem, purchase, retire, defease or
otherwise make any payment in respect of (except payments consisting of
Capital Stock that does not constitute Disqualified Stock) at any time
prior to the date six months following the Term Loan Maturity Date.
"DOLLARS" and "$": dollars in lawful currency of the United
States of America.
"DOMESTIC SUBSIDIARY": any Subsidiary of the Borrower
organized under the laws of the District of Columbia or any state
within the United States of America.
"ELIGIBLE ASSIGNEE": commercial banks, finance companies,
insurance companies or other financial institutions or any Person
(other than a natural Person) that is engaged in making, purchasing,
holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.
"ENVIRONMENTAL LAWS": any and all laws, rules, orders,
regulations, statutes, ordinances, codes, decrees or other legally
enforceable requirements (including common law) of any international
authority, foreign government, the United States, or any state, local,
municipal or other Governmental Authority, regulating, relating to or
imposing liability or standards of conduct concerning protection of the
environment or of human health, as has been, is now, or may at any time
hereafter be, in effect.
"ENVIRONMENTAL PERMITS": any and all permits, licenses,
approvals, registrations, notifications, exemptions and any other
authorization required under any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"EUROCURRENCY RESERVE REQUIREMENTS": for any day as applied to
a Eurodollar Loan, the aggregate (without duplication) of the maximum
rates (expressed as a decimal fraction) of reserve requirements in
effect on such day (including basic, supplemental, marginal and
emergency
-8-
reserves under any regulations of the Board or other Governmental
Authority having jurisdiction with respect thereto) dealing with
reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D) maintained
by a member bank of the Federal Reserve System. Eurodollar Loans shall
be deemed to constitute Eurocurrency Liabilities and to be subject to
such reserve requirements without benefit or credit for proration,
exceptions or offsets that may be available from time to time to any
Lender under Regulation D.
"EURODOLLAR BASE RATE": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
determined on the basis of the rate for deposits in Dollars for a
period equal to such Interest Period commencing on the first day of
such Interest Period appearing on Page 3750 of the Telerate screen as
of 11:00 A.M., London time, two Business Days prior to the beginning of
such Interest Period. In the event that such rate does not appear on
Page 3750 of the Telerate screen (or otherwise on such screen), the
"Eurodollar Base Rate" for purposes of this definition shall be
determined by reference to such other comparable publicly available
service for displaying eurodollar rates as may be selected by the
Administrative Agent.
"EURODOLLAR LOANS": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"EURODOLLAR RATE": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"EURODOLLAR TRANCHE": the collective reference to Eurodollar
Loans the then current Interest Periods with respect to all of which
begin on the same date and end on the same later date (whether or not
such Loans shall originally have been made on the same day).
"EVENT OF DEFAULT": any of the events specified in Section 8,
PROVIDED that any requirement set forth therein for the giving of
notice, the lapse of time, or both, has been satisfied.
"EXCHANGE SUBORDINATED DEBT": Subordinated Debt issued
pursuant to Section 8 of the Certificates of Designation and pursuant
to an indenture substantially in the form of Exhibit A thereto, which
indenture includes, among other things, an express provision
designating the Exchange Subordinated Debt as "Subordinated Debt" for
purposes of this Agreement and designating this Agreement as a "Senior
Credit Facility" and as "Designated Senior Debt" referred to therein.
"EXCLUDED ASSETS": as defined in the Guarantee and Collateral
Agreement.
"EXCLUDED FOREIGN SUBSIDIARY": any Foreign Subsidiary other
than (a) any Foreign Subsidiary that has elected to be taxed as a
partnership or a disregarded entity pursuant to Section 301.7701-3 of
the United States Treasury Regulations, (b) Spanish Broadcasting System
of Puerto Rico, Inc. and its Subsidiaries and (c) any Foreign
Subsidiary that has guaranteed or is required to guarantee the Senior
Subordinated Notes or any other Subordinated Debt.
-9-
"FACILITY": each of (a) the Term Loan Commitments and the Term
Loans made thereunder (the "TERM LOAN FACILITY") and (b) the Revolving
Credit Commitments and the extensions of credit made thereunder (the
"REVOLVING CREDIT FACILITY").
"FAIR MARKET VALUE": (a) with respect to any asset or group of
assets (other than a marketable security) at any date, the value of the
consideration obtainable in a sale of such asset at such date assuming
a sale by a willing seller to a willing purchaser dealing at arm's
length and arranged in an orderly manner over a reasonable period of
time having regard to the nature and characteristics of such asset, as
reasonably determined by the Board of Directors of the Borrower or, if
such asset shall have been the subject of a relatively contemporaneous
appraisal by an independent third party appraiser, the basic
assumptions underlying which have not materially changed since its
date, the value set forth in such appraisal and (b) with respect to any
marketable security at any date, the closing sale price of such
security on the Business Day next preceding such date, as appearing in
any published list of any national securities exchange or the NASDAQ
Stock Market or, if there is no such closing sale price of such
Security, the final price for the purchase of such Security at face
value quoted on such business day by a financial institution of
recognized standing regularly dealing in securities of such type and
selected by the Administrative Agent.
"FCC": the Federal Communications Commission (or any
successor).
"FCC LICENSES": any licenses, permits and authorizations
issued by the FCC for the operation of stations.
"FEDERAL FUNDS EFFECTIVE RATE": for any day, 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 on the next succeeding 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
the day of such transactions received by the Administrative Agent from
three federal funds brokers of recognized standing selected by it.
"FEE LETTER": the Senior Secured Credit Facilities Fee Letter,
dated as of October 8, 2003, among the Borrower, the Administrative
Agent, the Arranger, the Co-Documentation Agents, Xxxxxxx Xxxxx Capital
Corporation and Deutsche Bank Trust Company Americas as the same may be
amended, supplemented, replaced or otherwise modified from time to time
in accordance with this Agreement.
"FOREIGN SUBSIDIARY": any Subsidiary of the Borrower that is
not a Domestic Subsidiary.
"FQ1", "FQ2", "FQ3", and "FQ4": when used with a numerical
year designation, mean the first, second, third or fourth fiscal
quarters, respectively, of such fiscal year of the Borrower (e.g., "FQ1
in 2004" means the first fiscal quarter, ending on March 31, 2004, of
the Borrower's fiscal year 2004, which ends on December 31, 2004).
"FUNDED DEBT": as to any Person, all Indebtedness of such
Person required under GAAP to be shown as or reflected in the
liabilities on its balance sheet, to the extent required under GAAP to
be shown as or reflected in such liabilities, that matures more than
one year from the date of its creation or matures within one year from
such date but is renewable or extendible, at the option of such Person,
to a date more than one year from such date or arises under a revolving
credit or similar agreement that obligates the lender or lenders to
extend credit during a period of more than one year from such date,
including all current maturities and current sinking fund
-10-
payments in respect of such Indebtedness whether or not required to be
paid within one year from the date of its creation and, in the case of
the Borrower, Indebtedness in respect of the Loans.
"FUNDING OFFICE": the office specified from time to time by
the Administrative Agent as its funding office by notice to the
Borrower and the Lenders.
"GAAP": generally accepted accounting principles in the United
States of America as in effect from time to time, except that for
purposes of Section 7.1, GAAP shall be determined on the basis of such
principles in effect on the date hereof and consistent with those used
in the preparation of the most recent audited financial statements
delivered pursuant to Section 4.1(b).
"GOVERNING DOCUMENTS": collectively, as to any Person, the
articles or certificate of incorporation and bylaws, any shareholders
agreement, certificate of formation, limited liability company
agreement, partnership agreement or other formation or constituent
documents of such Person.
"GOVERNMENTAL AUTHORITY": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"GRANTOR": each signatory to the Guarantee and Collateral
Agreement (together with any other entity that may become a party to
the Guarantee and Collateral Agreement as provided therein).
"GRID EFFECTIVE DATE": the date of delivery to the
Administrative Agent of the Borrower's financial statements for the
second fiscal quarter that ends following the Closing Date.
"GUARANTEE AND COLLATERAL AGREEMENT": the Guarantee and
Collateral Agreement to be executed and delivered by the Borrower and
each Subsidiary Guarantor, substantially in the form of Exhibit B, as
the same may be amended, supplemented, replaced or otherwise modified
from time to time in accordance with this Agreement.
"GUARANTEE OBLIGATION": as to any Person (the "GUARANTEEING
PERSON"), any obligation of (a) the guaranteeing person or (b) another
Person (including any bank under any letter of credit) to induce the
creation of which the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or
in effect guaranteeing any Indebtedness, leases, dividends or other
obligations (the "PRIMARY OBLIGATIONS") of any other third Person (the
"PRIMARY OBLIGOR") in any manner, whether directly or indirectly,
including any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any Property
constituting direct or indirect security therefor, (ii) to advance or
supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of
the primary obligor, (iii) to purchase Property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless
the owner of any such primary obligation against loss in respect
thereof; PROVIDED, HOWEVER, that the term "Guarantee Obligation" shall
not include endorsements of instruments for deposit or collection in
the ordinary course of business. The amount of any Guarantee Obligation
of any guaranteeing person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and
(b) the maximum amount for which such guaranteeing person may be liable
pursuant to
-11-
the terms of the instrument embodying such Guarantee Obligation, unless
such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in
which case the amount of such Guarantee Obligation shall be such
guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.
"HEDGE AGREEMENTS": all interest rate swaps, caps or collar
agreements or similar arrangements entered into by the Borrower or any
of its Subsidiaries providing for protection against fluctuations in
interest rates or currency exchange rates or the exchange of nominal
interest obligations, either generally or under specific contingencies,
as each may be amended, supplemented, replaced or otherwise modified
from time to time in accordance with this Agreement.
"INDEBTEDNESS": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person, whether or not contingent, for the
deferred purchase price of Property or services (other than trade
payables incurred in the ordinary course of such Person's business),
(c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all indebtedness created
or arising under any conditional sale or other title retention
agreement with respect to Property acquired by such Person (even though
the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such
Property), (e) all Capital Lease Obligations of such Person, (f) all
obligations of such Person, contingent or otherwise, as an account
party under acceptance, letter of credit or similar facilities, (g) all
obligations of such Person, contingent or otherwise, to purchase,
redeem, retire or otherwise acquire for value any Disqualified Stock of
such Person, (h) all Guarantee Obligations of such Person in respect of
obligations of the kind referred to in clauses (a) through (g) above;
(i) all obligations of the kind referred to in clauses (a) through (h)
above secured by (or for which the holder of such obligation has an
existing right, contingent or otherwise, to be secured by) any Lien on
Property (including accounts and contract rights) owned by such Person,
whether or not such Person has assumed or become liable for the payment
of such obligation, but if any such obligation is non-recourse to such
Person, then the amount of such obligation shall be deemed to be the
lesser of the fair market value of such Property and the amount of the
obligation so secured, and (j) for the purposes of Section 8(e) only,
all obligations of such Person in respect of Hedge Agreements. For the
avoidance of doubt, "Indebtedness" shall not include any Capital Stock
(other than Disqualified Stock) or any liabilities or obligations in
respect of Capital Stock (other than Disqualified Stock).
"INDEMNIFIED LIABILITIES": as defined in Section 10.5.
"INDEMNITEE": as defined in Section 10.5.
"INSOLVENCY": with respect to any Multiemployer Plan, the
condition that such Multiemployer Plan is insolvent within the meaning
of Section 4245 of ERISA.
"INSOLVENT": pertaining to a condition of Insolvency.
"INSURANCE REQUIREMENTS": all material terms of any insurance
policy required pursuant to this Agreement or any Security Document.
"INTELLECTUAL PROPERTY": the collective reference to all
rights, priorities and privileges relating to intellectual property,
whether arising under United States, state, multinational or
-12-
foreign laws or otherwise, including copyrights, patents, trademarks,
service-marks, technology, know-how and processes, recipes, formulas,
trade secrets, or licenses (under which the applicable Person is
licensor or licensee) relating to any of the foregoing and all rights
to xxx at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages
therefrom.
"INTELLECTUAL PROPERTY COLLATERAL": all Intellectual Property
of the Loan Parties, now owned or hereafter acquired, upon which a Lien
is purported to be created by the Intellectual Property Security
Agreements or the Guarantee and Collateral Agreement.
"INTELLECTUAL PROPERTY SECURITY AGREEMENTS": as defined in the
Guarantee and Collateral Agreement.
"INTEREST PAYMENT DATE" (a) as to any Base Rate Loan, the last
day of each March, June, September and December to occur while such
Loan is outstanding and the final maturity date of such Loan, (b) as to
any Eurodollar Loan having an Interest Period of three months or less,
the last day of such Interest Period, (c) as to any Eurodollar Loan
having an Interest Period longer than three months, each day that is
three months, or a whole multiple thereof, after the first day of such
Interest Period and the last day of such Interest Period and (d) as to
any Loan (other than any Revolving Credit Loan that is a Base Rate Loan
(unless all Revolving Credit Loans are being repaid in full in
immediately available funds and the Revolving Credit Commitments
terminated) and any Swing Line Loan), the date of any repayment or
prepayment made in respect thereof.
"INTEREST PERIOD": as to any Eurodollar Loan, (a) initially,
the period commencing on the borrowing or conversion date, as the case
may be, with respect to such Eurodollar Loan and ending one, two, three
or six months thereafter, as selected by the Borrower in its Notice of
Borrowing or notice of conversion, as the case may be, given with
respect thereto; and (b) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such Eurodollar
Loan and ending one, two, three or six months thereafter, as selected
by the Borrower by irrevocable notice to the Administrative Agent not
less than three Business Days prior to the last day of the then current
Interest Period with respect thereto; PROVIDED that all of the
foregoing provisions relating to Interest Periods are subject to the
following:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;
(ii) any Interest Period that would otherwise extend
beyond the Revolving Credit Termination Date or beyond Term
Loan Maturity Date shall end on the Revolving Credit
Termination Date or the Term Loan Maturity Date, as
applicable;
(iii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month; and
(iv) the Borrower shall select Interest Periods so as
not to require a payment or prepayment of any Eurodollar Loan
during an Interest Period for such Loan.
-13-
"INVESTMENTS": as defined in Section 7.8.
"ISSUING LENDER": any Revolving Credit Lender that is
appointed by the Borrower, with the consent of the Administrative
Agent, to act as Issuing Lender under this Agreement, if such Revolving
Credit Lender is willing to act as such and has confirmed in writing
its acceptance of such appointment.
"KXOL ACQUISITION": the acquisition of radio station KXOL-FM
on the terms and subject to the conditions set forth in the KXOL
Acquisition Agreement.
"KXOL ACQUISITION AGREEMENT": the Asset Purchase Agreement,
dated November 2, 2000, between the International Church of the
FourSquare Gospel and the Borrower, as amended through the Second
Amendment thereto, dated February 8, 2002.
"L/C COMMITMENT": at any time, the lesser of (a) $2,500,000
and (b) the Total Revolving Credit Commitments at such time.
"L/C FEE PAYMENT DATE": the last day of each March, June,
September and December and the last day of the Revolving Credit
Commitment Period.
"L/C OBLIGATIONS": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit and (b) the aggregate amount of drawings
under Letters of Credit that have not then been reimbursed pursuant to
Section 3.5.
"L/C PARTICIPANTS": the collective reference to all the
Revolving Credit Lenders other than the Issuing Lender.
"LEASE": any lease of real or personal property under which
any Grantor is the lessee.
"XXXXXX ENTITY": any of Xxxxxx Commercial Paper Inc. or any of
its affiliates.
"LENDER ADDENDUM": with respect to any initial Lender, a
Lender Addendum, substantially in the form of Exhibit C, to be executed
and delivered by such Lender on the Closing Date as provided in Section
10.17.
"LENDERS": as defined in the preamble hereto and includes the
Issuing Lender.
"LETTERS OF CREDIT": as defined in Section 3.1(a).
"LIEN": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement and
any capital lease having substantially the same economic effect as any
of the foregoing).
"LOAN": any loan made by any Lender pursuant to this
Agreement.
"LOAN DOCUMENTS": this Agreement, the Security Documents, the
Fee Letter, the Applications and the Notes.
-14-
"LOAN PARTIES": the Borrower and each Subsidiary of the
Borrower that is a party to a Loan Document (including pursuant to
Section 6.10).
"MAJORITY FACILITY LENDERS": with respect to any Facility, the
holders of more than 50% of the sum of (a) the aggregate unfunded
Commitments in respect of such Facility PLUS (b) the aggregate unpaid
principal amount of the Loans or, in the case of the Revolving Credit
Facility, Total Revolving Extensions of Credit outstanding under such
Facility.
"MANAGEMENT EQUITY": common stock, or options or warrants to
acquire common stock, of the Borrower, granted to any present or former
director, officer or employee of the Borrower pursuant to an employee
stock incentive program approved by the Board of Directors of the
Borrower.
"MATERIAL ACTION": as to any Broadcast License Subsidiary, (i)
to consolidate or merge such Broadcast License Subsidiary with or into
any Person, or sell all or substantially all of the assets of such
Broadcast License Subsidiary, or to institute proceedings to have such
Broadcast License Subsidiary be adjudicated bankrupt or insolvent, or
consent to the institution of bankruptcy or insolvency proceedings
against such Broadcast License Subsidiary or file a petition seeking,
or consent to, reorganization or relief with respect to such Broadcast
License Subsidiary under any applicable federal or state law relating
to bankruptcy, or consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of such
Broadcast License Subsidiary or a substantial part of its property, or
make any assignment for the benefit of creditors of such Broadcast
License Subsidiary, or admit in writing such Broadcast License
Subsidiary's inability to pay its debts generally as they become due,
or, to the fullest extent permitted by law, take action in furtherance
of any such action, or dissolve or liquidate such Broadcast License
Subsidiary, or (ii) to take any other action that would cause or permit
the dissolution of such Broadcast License Subsidiary whether pursuant
to the Governing Documents of such Broadcast License Subsidiary,
judicial dissolution, applicable law or otherwise.
"MATERIAL ADVERSE EFFECT": a material adverse effect on or
affecting (a) the business, assets, property, condition (financial or
otherwise) or prospects of the Loan Parties taken as a whole, (b) the
validity or enforceability of this Agreement or any of the other Loan
Documents, (c) the validity, enforceability or priority of the Liens
purported to be created by the Security Documents, or (d) the rights or
remedies of any Secured Party hereunder or under any of the other Loan
Documents.
"MATERIAL ENVIRONMENTAL AMOUNT": an amount or amounts payable
by the Borrower and/or any of its Subsidiaries, in the aggregate in
excess of $5,000,000, for: costs to comply with any Environmental Law;
costs of any investigation, and any remediation, of any Material of
Environmental Concern; and compensatory damages (including, without
limitation damages to natural resources), punitive damages, fines, and
penalties pursuant to any Environmental Law.
"MATERIALS OF ENVIRONMENTAL CONCERN": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products, polychlorinated biphenyls, urea-formaldehyde insulation,
asbestos, pollutants, contaminants, radioactivity, and any other
substances or forces of any kind, whether or not any such substance or
force is defined as hazardous or toxic under any Environmental Law,
that is regulated pursuant to or could give rise to liability under any
Environmental Law.
"MORTGAGE": means each of the mortgages, deeds of trust,
leasehold mortgages, leasehold deeds of trust, collateral assignments
of leases or other real estate security documents delivered
-15-
by any Loan Party to the Administrative Agent on behalf of itself and
the Lenders with respect to any real property, in each case, as
amended, modified or supplemented from time to time.
"MULTIEMPLOYER PLAN": a Plan that is a multiemployer plan as
defined in Section 3(37) or 4001(a)(3) of ERISA.
"NET CASH PROCEEDS": (a) in connection with any Asset Sale or
any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such Asset Sale or Recovery Event, net of reasonable and
customary attorneys' fees, accountants' fees, investment banking fees,
amounts required to be applied to the repayment of Indebtedness secured
by a Lien expressly permitted hereunder on any asset that is the
subject of such Asset Sale or Recovery Event (other than any Lien
pursuant to a Security Document) and other reasonable and customary
fees, commissions and expenses (including severance costs), in each
case, to the extent actually incurred in connection therewith and net
of taxes paid or reasonably estimated to be payable as a result thereof
(after taking into account any available tax credits or deductions and
any tax sharing arrangements) and (b) in connection with any issuance
or sale of equity securities or debt securities or instruments or the
incurrence of loans or any other indebtedness, the cash proceeds
received from such issuance or incurrence, net of reasonable and
customary attorneys' fees, investment banking fees, accountants' fees,
underwriting discounts and commissions and other reasonable and
customary fees and expenses, in each case, to the extent actually
incurred in connection therewith.
"NON-EXCLUDED TAXES": as defined in Section 2.20(a).
"NON-U.S. LENDER": as defined in Section 2.20(f).
"NOTES": the collective reference to the Revolving Credit
Notes, the Term Notes and the Swing Line Notes, if any, evidencing
Loans.
"NOTICE OF BORROWING": a notice duly executed by a Responsible
Officer of the Borrower substantially in the form of Exhibit D.
"OBLIGATIONS": the unpaid principal of and interest on
(including interest accruing after the maturity of the Loans and
Reimbursement Obligations and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Loan Party, whether
or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans and all other obligations and liabilities of
the Loan Parties to the Arranger, to any Agent, to any Lender (or, in
the case of Specified Hedge Agreements, any affiliate of any Lender) or
to any Indemnitee, whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which may
arise under, out of, or in connection with, this Agreement, any other
Loan Document, the Letters of Credit, any Specified Hedge Agreement or
any other document made, delivered or given in connection herewith or
therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including all fees,
charges and disbursements of counsel to the Arranger, to any Agent or
to any Lender that are required to be paid by any Loan Party pursuant
hereto or to any other Loan Document) or otherwise; PROVIDED that (a)
Obligations of the Borrower or any other Loan Party under any Specified
Hedge Agreement shall be secured and guaranteed pursuant to the
Security Documents only to the extent that, and for so long as, the
other Obligations are so secured and guaranteed and (b) any release of
Collateral or Subsidiary
-16-
Guarantors effected in the manner permitted by this Agreement shall
require the consent only of the Lenders as set forth in Section 10.1.
"OTHER TAXES": any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar levies arising from any payment made hereunder or from the
execution, delivery or enforcement of, or otherwise with respect to,
this Agreement or any other Loan Document.
"PARTICIPANT": as defined in Section 10.6(b).
"PATENT SECURITY AGREEMENT SUPPLEMENT": as defined in the
Guarantee and Collateral Agreement.
"PAYMENT AMOUNT": as defined in Section 3.5.
"PAYMENT OFFICE": the office of the Administrative Agent
specified in Section 10.2 or as otherwise specified from time to time
by the Administrative Agent as its payment office by notice to the
Borrower and the Lenders.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"PERMITS": the collective reference to (a) Environmental
Permits and (b) any and all other franchises, licenses, leases,
permits, approvals, notifications, certifications, registrations,
authorizations, exemptions, qualifications, easements, rights of way,
Liens and other rights, privileges and approvals required under any
Requirement of Law.
"PERMITTED ACQUISITIONS": Any Acquisition of a Permitted
Business that meets the following requirements at the time such
Acquisition is consummated:
(i) no Default exists or would exist after giving effect to
such Acquisition and each representation and warranty made by any Loan
Party in or pursuant to the Loan Documents shall be true and correct on
and as of such date as if made on and as of such date and immediately
after giving effect to such Acquisition;
(ii) the Borrower has delivered to the Administrative Agent a
certificate of a Responsible Officer stating that, on a pro forma
basis, after giving effect to such Acquisition and any incurrence or
assumption of Indebtedness in connection therewith and the application
of the proceeds thereof as if they had occurred on the first day of the
12-month period ending on the last day of the fiscal quarter of the
Borrower then most recently ended, the Borrower would have been in
compliance, as of the last day of such fiscal quarter, with each of the
financial condition covenants set forth in Section 7.1, accompanied by
(A) historic financial statements for the Acquired Business in such
Acquisition that either are audited by an accounting firm of recognized
standing or reasonably satisfactory to the Administrative Agent
covering such 12-month period and, if available, the preceding two
years and (B) an analysis showing the calculations of such pro forma
financial covenant compliance in reasonable detail;
(iii) the Borrower delivers to the Administrative Agent,
promptly after consummation of such Acquisition, a signed counterpart
of each legal opinion, if any, delivered in connection with such
Acquisition, accompanied by a reliance letter in favor of the
Administrative Agent and the Lenders;
-17-
(iv) if the Acquired Business in such Acquisition consists of
or includes any business other than the Spanish language radio
broadcast business in the United States or Puerto Rico, (x) the
Administrative Agent and Lenders have been provided, at least 10
Business Days prior to the consummation of such Acquisition, (A)
written notice of such Acquisition, (B) copies of all Acquisition
Documentation for such Acquisition and (C) such financial statements,
information, documents and materials as the Administrative Agent or
Required Lenders may request in order to conduct and complete a
business, financial and legal due diligence review satisfactory to the
Administrative Agent and Required Lenders of such Acquisition, of the
Acquired Business in such Acquisition and of the terms and conditions
of the Acquisition Documentation for such Acquisition and (y) the
Borrower has not been notified, within 10 Business Days after all
financial statements, information, documents and materials so requested
were provided, that the Administrative Agent or Required Lenders are
not satisfied with the results of their diligence review; and
(v) (x) the consideration for such acquisition consists
entirely of Capital Stock or is paid with the proceeds of Capital Stock
(in each case, other than Disqualified Stock) or (y) (1) after giving
effect to the consummation of such Acquisition, and the funding of any
Loans or the incurrence of any other Indebtedness in connection
therewith the sum of (A) the amount of Total Revolving Commitments that
on a pro forma basis (assuming that the Acquisition and the financing
thereof occurred on the last day of the fiscal quarter of the Borrower
then most recently ended) would be available to the Borrower in
accordance with the conditions to borrowing hereunder, including
Section 5.2(c), plus (B) the Borrower's and the Guarantors' cash and
Cash Equivalents, shall be at least $30,000,000 and (2) either (A) the
consideration for such Acquisition (including assumption of
Indebtedness but excluding consideration paid with the proceeds of
Capital Stock or constituting Capital Stock (in each case, other than
Disqualified Stock) and excluding consideration paid with Net Cash
Proceeds constituting a Reinvestment Deferred Amount in accordance with
the terms of this Agreement) (the non-excluded portion of such
consideration, "ACQUISITION CONSIDERATION") does not exceed, when added
to all Acquisition Consideration previously paid in such fiscal year,
$50,000,000, or when added to all other Acquisition Consideration
previously paid since the Closing Date, $100,000,000, or (B) on a pro
forma basis after giving effect to the Acquisition (as though the
Acquisition and any Loans or other Indebtedness incurred in connection
therewith occurred on the first day of the most recently reported
period of twelve consecutive months), Consolidated Interest Coverage
Ratio for such period is not less than 1.25 to 1.00.
"PERMITTED BUSINESS": the media business and any business
reasonably similar, complementary, ancillary or related thereto,
including the operation of Latin music websites and internet portals,
and any activity reasonably incidental thereto.
"PERMITTED GUARANTOR": any Subsidiary Guarantor that as of the
Closing Date has guaranteed the Senior Subordinated Notes or that after
the Closing Date has become required to guarantee the Senior
Subordinated Notes pursuant to the Senior Subordinated Note Indenture
as in effect on the Closing Date or as subsequently amended with the
prior written consent of the Required Lenders.
"PERMITTED INVESTORS": in any combination, Xxxx Xxxxxxx, Xx.
and Pablo Xxxx Xxxxxxx, Xx. and any corporation, trust, partnership,
company or other entity more than 50% of the beneficial interests in
which are owned, in any combination, by Xxxx Xxxxxxx, Xx. and Pablo
Xxxx Xxxxxxx, Xx.
-18-
"PERMITTED REFINANCING": the incurrence by Borrower or any of
its Subsidiaries of Indebtedness, the proceeds of which are used to
redeem or repurchase the Senior Subordinated Notes so long as (1) in
the event such Indebtedness constitutes Subordinated Debt, (a) except
as provided in clause (1)(b) below, the terms of such indebtedness
(including terms of subordination) are substantially similar to those
of the Senior Subordinated Notes (or more favorable to the Lenders) and
(b) such Indebtedness matures after, and there is no scheduled
mandatory redemption or prepayment of principal of such Indebtedness
prior to, the date six (6) months following the Term Loan Maturity Date
or (2) in the event that such Indebtedness does not constitute
Subordinated Debt, (a) such Indebtedness is unsecured and is upon terms
and conditions and documentation acceptable in all respects to the
Administrative Agent, (b) after giving effect to the incurrence of such
Indebtedness on a pro forma basis (assuming that such Indebtedness was
incurred on the first day of the most recently completed period of
twelve consecutive months) the Consolidated Senior Debt Ratio is not
more than 5.0:1.0 and (c) such Indebtedness matures after, and there is
no scheduled mandatory redemption or prepayment of principal of such
Indebtedness prior to, the date six (6) months following the Term Loan
Maturity Date.
"PERSON": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
"PLAN": at a particular time, any employee benefit plan that
is covered by ERISA and that the Borrower or any Commonly Controlled
Entity maintains, administers, contributes to or is required to
contribute to or under which the Borrower or any Commonly Controlled
Entity could incur any liability.
"PRICING GRID": the pricing grid attached hereto as Annex A.
"PREFERRED STOCK": $75,000,000 in aggregate original
liquidation preference of the Borrower's 10 3/4% Series A Cumulative
Exchangeable Redeemable Preferred Stock, and any shares of Borrower's
10 3/4% Series B Cumulative Exchangeable Preferred Stock issued in
exchange for such Series A Preferred Stock.
"PROCEEDS": as defined in the Guarantee and Collateral
Agreement.
"PRO FORMA BALANCE SHEET": as defined in Section 4.1(a).
"PROJECTIONS": as defined in Section 6.2(c).
"PROPERTY": any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible
or intangible, including Capital Stock.
"PUERTO RICO INTERCOMPANY DEBT": Indebtedness that (a) was
incurred or assumed by Spanish Broadcasting System of Puerto Rico,
Inc., a Delaware corporation, or any of its Subsidiaries and (b) is
outstanding to the Borrower or a Wholly Owned Subsidiary Guarantor.
"QUALIFIED SUPPORTING LETTER OF CREDIT" means, with respect to
any Letter of Credit, a back-to-back letter of credit, issued by a bank
acceptable to the Issuing Lender of such Letter of Credit and to the
Administrative Agent and in form and substance acceptable to such
Issuing Lender and the Administrative Agent, and as to which such
Issuing Lender is the beneficiary and
-19-
in an amount equal to not less than 105% of the undrawn and available
amount of such Letter of Credit at the time of issuance of such letter
of credit.
"RECOVERY EVENT": any settlement of or payment in respect of
any property or casualty insurance claim or any condemnation proceeding
relating to any asset of the Borrower or any of its Subsidiaries.
"REFUNDED SWING LINE LOANS": as defined in Section 2.7(b).
"REFUNDING DATE": as defined in Section 2.7(c).
"REGISTER": as defined in Section 10.6(d).
"REGULATION D": Regulation D of the Board as in effect from
time to time (and any successor to all or a portion thereof).
"REGULATION T": Regulation T of the Board as in effect from
time to time (and any successor to all or a portion thereof).
"REGULATION U": Regulation U of the Board as in effect from
time to time (and any successor to all or a portion thereof).
"REGULATION X": Regulation X of the Board as in effect from
time to time (and any successor to all or a portion thereof).
"REIMBURSEMENT OBLIGATION": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn
under Letters of Credit.
"REINVESTMENT DEFERRED AMOUNT": with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by the
Borrower or any of its Subsidiaries in connection therewith that are
not applied to prepay the Term Loans or reduce the Revolving Credit
Commitments pursuant to Section 2.12(b) as a result of the delivery of
a Reinvestment Notice.
"REINVESTMENT EVENT": any Asset Sale or Recovery Event in
respect of which the Borrower has delivered a Reinvestment Notice.
"REINVESTMENT NOTICE": a written notice executed by a
Responsible Officer stating that no Default has occurred and is
continuing and that the Borrower (directly or indirectly through a
Wholly Owned Subsidiary) intends and expects to use all or a specified
portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to
acquire assets (including the acquisition of Capital Stock or assets
pursuant to a Permitted Acquisition) useful in its business or, in the
case of a Recovery Event, repair assets to which such Recovery Event
relates.
"REINVESTMENT PREPAYMENT AMOUNT": with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto
less any amount expended prior to the relevant Reinvestment Prepayment
Date to acquire assets (including the acquisition of Capital Stock or
assets pursuant to a Permitted Acquisition) useful in the Borrower's
business or, in the case of a Recovery Event, repair assets to which
such Recovery Event relates.
"REINVESTMENT PREPAYMENT DATE": with respect to any
Reinvestment Event, the earlier of (a) the date occurring 365 days
after such Reinvestment Event and (b) the date on which the
-20-
Borrower shall have determined not to, or shall have otherwise ceased
to, acquire assets (including the acquisition of Capital Stock or
assets pursuant to a Permitted Acquisition) useful in the Borrower's
business or, in the case of a Recovery Event, repair assets to which
such Recovery Event relates, in any such case with all or any portion
of the relevant Reinvestment Deferred Amount.
"RELATED FUND": with respect to any Lender that is a fund that
invests in loans, any other fund that is managed by the same investment
advisor as such Lender or by an Affiliate of such Lender or investment
advisor.
"RELATED PERSON": as to each of the Arranger, the Agents and
the Lenders, each of its officers, directors, stockholders, members,
partners, employees, agents, attorneys and other advisors, controlling
persons and Affiliates.
"REORGANIZATION": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"REPORTABLE EVENT": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .27, .28, .29, .30, .31, .32,
.34 or .35 of PBGC Reg. Section 4043.
"REQUIRED LENDERS": at any time, the holders of more than 50%
of (a) until the Closing Date, the Commitments and (b) thereafter, the
sum of (i) the aggregate unpaid principal amount of the Term Loans then
outstanding and (ii) the Total Revolving Credit Commitments then in
effect or, if the Revolving Credit Commitments have terminated, the
Total Revolving Extensions of Credit then outstanding.
"REQUIRED PREPAYMENT LENDERS": the Majority Facility Lenders
in respect of each Facility.
"REQUIREMENT OF LAW": as to any Person, the Governing
Documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its Property or to which such Person or any of its Property is
subject.
"RESPONSIBLE OFFICER": as to any Person, the chief executive
officer, president, chief financial officer or treasurer of such
Person, but in any event, with respect to financial matters, the chief
financial officer or treasurer of such Person. Unless otherwise
qualified, all references to a "Responsible Officer" shall refer to a
Responsible Officer of the Borrower.
"RESTRICTED PAYMENTS": as defined in Section 7.6.
"REVOLVING CREDIT COMMITMENT": as to any Lender, the
obligation of such Lender, if any, to make Revolving Credit Loans
and/or participate in Swing Line Loans and Letters of Credit, in an
aggregate principal and/or face amount not to exceed the amount set
forth under the heading "Revolving Credit Commitment" opposite such
Lender's name on Schedule 1 to the Lender Addendum delivered by such
Lender, or, as the case may be, in the Assignment and Acceptance
pursuant to which such Lender became a party hereto, as the same may be
changed from time to time pursuant to the terms hereof. The original
aggregate principal amount of the Revolving Credit Commitments is
$10,000,000.
-21-
"REVOLVING CREDIT COMMITMENT PERIOD": the period from and
including the Closing Date to the Revolving Credit Termination Date.
"REVOLVING CREDIT LENDER": each Lender that has a Revolving
Credit Commitment or that is the holder of Revolving Credit Loans.
"REVOLVING CREDIT LOANS": as defined in Section 2.4(a).
"REVOLVING CREDIT NOTES": as defined in Section 2.8(e).
"REVOLVING CREDIT PERCENTAGE": as to any Revolving Credit
Lender at any time, the percentage that such Lender's Revolving Credit
Commitment then constitutes of the Total Revolving Credit Commitments
(or, at any time after the Revolving Credit Commitments have
terminated, the percentage which the aggregate principal amount of such
Lender's Revolving Extensions of Credit then outstanding constitutes of
the aggregate principal amount of the Total Revolving Extensions of
Credit then outstanding).
"REVOLVING CREDIT TERMINATION DATE": the earlier of (a) the
date that is five (5) years following the Closing Date, (b) the date of
termination of the Revolving Credit Lenders' obligations to make
Revolving Credit Loans pursuant to the last paragraph of Section 8 and
(c) the date of (i) the payment in full in cash by the Borrower of any
outstanding Revolving Credit Loans, (ii) the cancellation and return
(or stand-by guarantee) of all Letters of Credit and (iii) the
permanent reduction of all Revolving Credit Commitments to zero Dollars
($0) pursuant to Section 2.10.
"REVOLVING EXTENSIONS OF CREDIT": as to any Revolving Credit
Lender at any time, an amount equal to the sum of (a) the aggregate
principal amount of all Revolving Credit Loans then outstanding to such
Lender, (b) such Lender's Revolving Credit Percentage of the L/C
Obligations then outstanding and (c) such Lender's Revolving Credit
Percentage of the aggregate principal amount of Swing Line Loans then
outstanding.
"SA STATIONS": collectively, radio stations KLEY-FM (San
Antonio, Texas) and KSAH-AM (Universal City, Texas).
"SEC": the United States Securities and Exchange Commission
(or successors thereto or an analogous Governmental Authority).
"SECURED PARTIES": collectively, the Arranger, the Agents, the
Lenders, each Indemnitee and, with respect to any Specified Hedge
Agreement, any affiliate of any Lender party thereto that has agreed to
be bound by the provisions of Section 14.02 of the Guarantee and
Collateral Agreement as if it were a party thereto and by the
provisions of Section 9 hereof as if it were a Lender party hereto.
"SECURITY DOCUMENTS": the collective reference to the
Guarantee and Collateral Agreement, the Mortgages, the Intellectual
Property Security Agreements, the Control Agreements and all other
pledge and security documents hereafter delivered to the Administrative
Agent granting a Lien on any Property of any Person to secure the
obligations and liabilities of any Loan Party under any Loan Document.
"SELLER INDEBTEDNESS": (a) Indebtedness incurred by the
Borrower issued as purchase consideration to the seller in a Permitted
Acquisition, PROVIDED that such Indebtedness shall (i) be
-22-
in an aggregate principal amount which, when taken together with the
aggregate principal amount of all other outstanding Seller Indebtedness
incurred after the Closing Date, does not exceed $25,000,000 at any one
time outstanding, (ii) be issued and payable and subordinated to the
Obligations on terms acceptable to the Administrative Agent, (iii) in
respect of which no payments of principal are due (including sinking
fund payments, redemption or defeasance deposits or any required
purchase) earlier than the date six months following the Term Loan
Maturity Date and (iv) not bear interest payable in cash during the
continuance of an Event of Default, and (b) any other Indebtedness
incurred by the Borrower or any Subsidiary in connection with a
Permitted Acquisition, if the amount and terms of such Indebtedness
have been approved in writing by the Required Lenders.
"SENIOR SUBORDINATED NOTES": the unsecured 9% Senior
Subordinated Notes due 2009 issued and outstanding under the Senior
Subordinated Note Indenture.
"SENIOR SUBORDINATED NOTE INDENTURE": the Indenture dated as
of June 8, 2001 between the Borrower and The Bank of New York, as
Trustee, in connection with the Senior Subordinated Notes, as the same
may be amended, supplemented, replaced or otherwise modified from time
to time in accordance with this Agreement.
"SF STATION": radio station KPTI-FM (San Francisco,
California).
"SINGLE EMPLOYER PLAN": any Plan that is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"SOLVENCY CERTIFICATE": the Solvency Certificate to be
executed and delivered by the chief financial officer of the Borrower,
substantially in the form of Exhibit E, which certificate shall address
the Solvency of the Borrower and its Subsidiaries after giving effect
to the consummation of the Facilities, the Preferred Stock issuance,
the KXOL Acquisition and any other transactions contemplated by the
Loan Documents.
"SOLVENT": when used with respect to any Person, as of any
date of determination, (a) the amount of the "present fair saleable
value" of the assets of such Person will, as of such date, exceed the
amount of all "liabilities of such Person, contingent or otherwise", as
of such date, as such quoted terms are determined in accordance with
applicable federal and state laws governing determinations of the
insolvency of debtors, (b) the present fair saleable value of the
assets of such Person will, as of such date, be greater than the amount
that will be required to pay the liability of such Person on its debts
as such debts become absolute and matured, (c) such Person will not
have, as of such date, an unreasonably small amount of capital with
which to conduct its business and (d) such Person will be able to pay
its debts as they mature; and the term "Solvency" shall have a
correlative meaning. For purposes of this definition, (i) "debt" means
liability on a "claim", and (ii) "claim" means any (x) right to
payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y)
right to an equitable remedy for breach of performance if such breach
gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured or
unmatured, disputed, undisputed, secured or unsecured.
"SPECIFIED CHANGE OF CONTROL": a "change of control" or
similar event (howsoever defined) as defined in the Senior Subordinated
Note Indenture or following issuance of any Exchange Subordinated Debt
or any Indebtedness incurred in a Permitted Refinancing, in the
indenture governing the Exchange Subordinated Debt or such
Indebtedness, as applicable.
-23-
"SPECIFIED HEDGE AGREEMENT": any Hedge Agreement (a) entered
into by (i) the Borrower or any of its Subsidiaries for the purpose of
hedging the interest rate exposure in connection with indebtedness
permitted under this Agreement and (ii) any Person who at the time of
entering into such Hedge Agreement as a counter-party is a Lender or
any affiliate thereof and (b) which has been designated by such Lender
and the Borrower, by notice to the Administrative Agent not later than
90 days after the execution and delivery thereof by the Borrower or
such Subsidiary, as a Specified Hedge Agreement; PROVIDED that the
designation of any Hedge Agreement as a Specified Hedge Agreement shall
not create in favor of any Lender or affiliate thereof that is a party
thereto any rights in connection with the management or release of any
Collateral or of the obligations of any Guarantor under the Guarantee
and Collateral Agreement.
"SUBORDINATED DEBT": any Indebtedness of the Borrower (a) that
is not secured by any Lien upon any Property of the Borrower or any of
its Subsidiaries, (b) that is issued and payable and subordinated to
the Obligations on terms acceptable to the Administrative Agent and (c)
in respect of which no payments of principal are due (including sinking
fund payments, redemption or defeasance deposits or any required
purchase) prior to the date six months following the Term Loan Maturity
Date and in any event shall include the Senior Subordinated Notes and
the Exchange Subordinated Debt.
"SUBSIDIARY": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or
other ownership interests having ordinary voting power (other than
stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation, partnership
or other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise qualified,
all references to a "Subsidiary" or to "Subsidiaries" in this Agreement
shall refer to a Subsidiary or Subsidiaries of the Borrower.
"SUBSIDIARY GUARANTOR": each Subsidiary of the Borrower other
than (i) any Excluded Foreign Subsidiary and (ii) JuJu Media, Inc.
"SWING LINE COMMITMENT": at any time, the lesser of (a)
$3,000,000 and (b) the aggregate amount of the Revolving Credit
Commitments at such time.
"SWING LINE LENDER": Xxxxxx Commercial Paper Inc., in its
capacity as the lender of Swing Line Loans.
"SWING LINE LOANS": as defined in Section 2.6(a).
"SWING LINE NOTES": as defined in Section 2.8(e).
"SWING LINE PARTICIPATION AMOUNT": as defined in Section
2.7(c).
"SYNDICATION AGENT": as defined in the preamble hereto.
"TERM LOAN": as defined in Section 2.1(a).
"TERM LOAN COMMITMENT": as to any Term Loan Lender, the
obligation of such Lender to make a Term Loan to the Borrower hereunder
on the Closing Date in a principal amount not to exceed the amount set
forth under the heading "Term Loan Commitment" opposite such Lender's
name on Schedule 1 to the Lender Addendum delivered by such Lender, or,
as the case may be,
-24-
in the Assignment and Acceptance pursuant to which such Lender became a
party hereto, as the same may be changed from time to time pursuant to
the terms hereof. The original aggregate amount of the Term Loan
Commitments is $125,000,000.
"TERM LOAN LENDER": each Lender that has a Term Loan
Commitment or is the holder a Term Loan.
"TERM LOAN MATURITY DATE": the date that is six (6) years
following the Closing Date; PROVIDED, HOWEVER, that in the event the
Borrower has not redeemed or repurchased and retired (with the proceeds
of an equity issuance (other than a Disqualified Equity Issuance) or
with the proceeds of a Permitted Refinancing) all Senior Subordinated
Notes on or prior to December 31, 2008, the "Term Loan Maturity Date"
shall be the date that is five and one-half (5-1/2) years following the
Closing Date.
"TERM LOAN PERCENTAGE": as to any Term Loan Lender at any
time, the percentage which such Lender's Term Loan Commitment bears to
the aggregate Term Loan Commitments at such time.
"TERM NOTES": as defined in Section 2.8(e).
"TERMINATION DATE": the date and time, if any, that all
Obligations have been paid in full in cash, no Commitment shall be in
effect and no Letter of Credit shall be in effect, other than any
Letter of Credit (i) for which there shall have been deposited in a
cash collateral account in which the Administrative Agent has a first
priority perfected security interest pursuant to a Control Agreement
and on terms acceptable to the Administrative Agent, cash in an amount
at least equal to the undrawn amount of such Letter of Credit or (y)
for which the Issuing Lender with respect to such Letter of Credit
shall have received a Qualified Supporting Letter of Credit.
"TOTAL REVOLVING CREDIT COMMITMENTS": at any time, the
aggregate amount of the Revolving Credit Commitments then in effect;
PROVIDED that the amount of the Total Revolving Credit Commitments on
the Closing Date shall be $10,000,000.
"TOTAL REVOLVING EXTENSIONS OF CREDIT": at any time, the
aggregate amount of the Revolving Extensions of Credit of the Revolving
Credit Lenders outstanding at such time.
"TRADEMARK SECURITY AGREEMENT SUPPLEMENT": as defined in the
Guarantee and Collateral Agreement.
"TRANSFEREE": as defined in Section 10.14.
"TYPE": as to any Loan, its nature as a Base Rate Loan or a
Eurodollar Loan.
"UNFUNDED PENSION LIABILITY" means the excess of a Single
Employer Plan's benefit liabilities under Section 4001(a)(16) of ERISA,
over the current value of that plan's assets, determined in accordance
with the assumptions used for funding such Plan pursuant to Section 412
of the Code for the applicable plan year.
"WHOLLY OWNED SUBSIDIARY": as to any Person, any other Person
all of the Capital Stock of which (other than directors' qualifying
shares required by law) is owned by such Person directly and/or through
other Wholly Owned Subsidiaries.
-25-
"WHOLLY OWNED SUBSIDIARY GUARANTOR": any Subsidiary Guarantor
that is a Wholly Owned Subsidiary of the Borrower.
1.2 OTHER DEFINITIONAL PROVISIONS.
(a) Unless otherwise specified therein, all terms defined in
this Agreement shall have such defined meanings when used in the other Loan
Documents or any certificate or other document made or delivered pursuant hereto
or thereto.
(b) As used herein and in the other Loan Documents and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Borrower and its Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(e) The expressions "payment in full," "paid in full" and any
other similar terms or phrases when used herein with respect to the Obligations
shall mean the payment in full, in immediately available funds, of all of the
Obligations.
(f) The term "including" is not limiting and means "including
without limitation."
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 TERM LOAN COMMITMENTS.
(a) Subject to the terms and conditions hereof, each Term Loan
Lender severally agrees to make term loans (each a "TERM LOAN") to the Borrower
in a single funding on the Closing Date in an aggregate amount not to exceed the
amount of the Term Loan Commitment of such Lender.
(b) The Term Loan Commitments shall terminate as to each Term
Loan Lender upon funding of its Term Loan. Term Loans that are repaid may not be
reborrowed.
2.2 PROCEDURE FOR TERM LOAN BORROWING. The Borrower shall give
the Administrative Agent irrevocable notice (which notice must be received by
the Administrative Agent prior to 10:00 A.M., New York City time, one Business
Day prior to the anticipated Closing Date if the Term Loans are funded as Base
Rate Loans or three Business Days prior to the anticipated Closing Date if the
Term Loans are funded as Eurodollar Loans) requesting that the Term Loan Lenders
make the Term Loans on such anticipated Closing Date and specifying the amount
to be borrowed, which shall be equal to the aggregate amount of the Term Loan
Commitments of all Term Loan Lenders. Upon receipt of such notice, the
Administrative Agent shall promptly notify each Term Loan Lender thereof. Not
later than 12:00 noon, New York City time, on such anticipated Closing Date,
each Term Loan Lender shall make available to the Administrative Agent at the
Funding Office an amount in immediately available funds equal to the Term Loan
or Term Loans to be made by such Lender.
-26-
2.3 REPAYMENT OF TERM LOANS. The Borrower shall pay the
principal amount of the Term Loans in twenty (20) consecutive quarterly
installments commencing on March 31, 2004 and continuing on the last day of each
December, March, June and September of each year thereafter through and
including December 31, 2008, and the amount of the quarterly installment due on
each such payment date shall be equal to 0.25% of the original principal balance
of all Term Loans funded on the Closing Date. Thereafter, the Borrower shall pay
the remaining principal amount of the Term Loans on the last day of each March,
June, September and December, and the amount of the quarterly installment due on
each such payment date shall be equal to 25% of the remaining principal balance
of all Term Loans as of December 31, 2008. Notwithstanding the foregoing, the
aggregate outstanding principal balance of the Term Loans shall be due and
payable in immediately available funds on the Term Loan Maturity Date, if not
sooner paid in full.
2.4 REVOLVING CREDIT COMMITMENTS.
(a) Subject to the terms and conditions hereof, each Revolving
Credit Lender severally agrees to make revolving credit loans (each a "REVOLVING
CREDIT LOAN") to the Borrower in one or more fundings during the Revolving
Credit Commitment Period in an aggregate principal amount at any one time
outstanding which, when added to such Lender's Revolving Credit Percentage of
the sum of (i) the L/C Obligations then outstanding and (ii) the aggregate
principal amount of the Swing Line Loans then outstanding, does not exceed the
amount of such Lender's Revolving Credit Commitment. During the Revolving Credit
Commitment Period the Borrower may use the Revolving Credit Commitments by
borrowing, prepaying the Revolving Credit Loans in whole or in part and
reborrowing, all in accordance with the terms and conditions hereof. The
Revolving Credit Commitments shall terminate on the Revolving Credit Termination
Date. The Revolving Credit Loans may from time to time be Eurodollar Loans or
Base Rate Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.5 and 2.13, provided that no
Revolving Credit Loan shall be made as a Eurodollar Loan after the day that is
one month prior to the Revolving Credit Termination Date.
(b) The Borrower shall repay all outstanding Revolving Credit
Loans on the Revolving Credit Termination Date.
2.5 PROCEDURE FOR REVOLVING CREDIT BORROWING. The Borrower may
borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day; PROVIDED that the Borrower shall give the
Administrative Agent irrevocable notice in a Notice of Borrowing (which Notice
of Borrowing must be received by the Administrative Agent prior to 12:00 noon,
New York City time, (a) three Business Days prior to the requested Borrowing
Date, in the case of Eurodollar Loans or (b) one Business Day prior to the
requested Borrowing Date, in the case of Base Rate Loans, specifying (i) the
amount and Type of Revolving Credit Loans to be borrowed, (ii) the requested
Borrowing Date and (iii) in the case of Eurodollar Loans, the length of the
initial Interest Period therefor. Any Revolving Credit Loans made on the Closing
Date shall initially be Base Rate Loans, and no Revolving Credit Loan may be
made as, converted into or continued as a Eurodollar Loan having an Interest
Period in excess of one month prior to the date which is 60 days after the
Closing Date. Each borrowing under the Revolving Credit Commitments shall be in
an amount equal to (x) in the case of Base Rate Loans, $1,000,000 or a whole
multiple thereof (or, if the then aggregate Available Revolving Credit
Commitments are less than $1,000,000, such lesser amount) and (y) in the case of
Eurodollar Loans, $1,000,000 or a whole multiple of $1,000,000 in excess
thereof; PROVIDED that the Swing Line Lender may request, on behalf of the
Borrower, borrowings under the Revolving Credit Commitments that are Base Rate
Loans in other amounts pursuant to Section 2.7. Upon receipt of any such Notice
of Borrowing from the Borrower, the Administrative Agent shall promptly notify
each Revolving Credit Lender thereof. Each Revolving Credit Lender will make the
amount of its pro rata share of each borrowing available to the Administrative
Agent for the account of the Borrower at the Funding Office
-27-
prior to 12:00 noon, New York City time, on the Borrowing Date requested by the
Borrower in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the Administrative
Agent in like funds as received by the Administrative Agent.
2.6 SWING LINE COMMITMENT.
(a) Subject to the terms and conditions hereof, the Swing Line
Lender agrees to make a portion of the credit otherwise available to the
Borrower under the Revolving Credit Commitments from time to time during the
Revolving Credit Commitment Period by making swing line loans ("SWING LINE
LOANS") to the Borrower; PROVIDED that (i) the aggregate principal amount of
Swing Line Loans outstanding at any time shall not exceed the Swing Line
Commitment then in effect (notwithstanding that the Swing Line Loans outstanding
at any time, when aggregated with the Swing Line Lender's other outstanding
Revolving Credit Loans hereunder, may exceed the Swing Line Commitment then in
effect) and (ii) the Borrower shall not request, and the Swing Line Lender shall
not make, any Swing Line Loan if, after giving effect to the making of such
Swing Line Loan, the aggregate amount of the Available Revolving Credit
Commitments would be less than zero. During the Revolving Credit Commitment
Period, the Borrower may use the Swing Line Commitment by borrowing, repaying
and reborrowing, all in accordance with the terms and conditions hereof. Swing
Line Loans shall be Base Rate Loans only.
(b) The Borrower shall repay all outstanding Swing Line Loans
on the Revolving Credit Termination Date.
2.7 PROCEDURE FOR SWING LINE BORROWING; REFUNDING OF SWING
LINE LOANS.
(a) Whenever the Borrower desires that the Swing Line Lender
make Swing Line Loans it shall give the Swing Line Lender irrevocable telephonic
notice confirmed promptly in writing (which telephonic notice must be received
by the Swing Line Lender not later than 1:00 P.M., New York City time, on the
proposed Borrowing Date) specifying (i) the amount to be borrowed and (ii) the
requested Borrowing Date (which shall be a Business Day during the Revolving
Credit Commitment Period). Each borrowing under the Swing Line Commitment shall
be in an amount equal to $500,000 or a whole multiple of $100,000 in excess
thereof. Not later than 3:00 P.M., New York City time, on the Borrowing Date
specified in a notice in respect of Swing Line Loans, the Swing Line Lender
shall make available to the Administrative Agent at the Funding Office an amount
in immediately available funds equal to the amount of the Swing Line Loan to be
made by the Swing Line Lender. The Administrative Agent shall make the proceeds
of such Swing Line Loan available to the Borrower on such Borrowing Date in
immediately available funds.
(b) The Swing Line Lender, at any time and from time to time
in its sole and absolute discretion may, on behalf of the Borrower (which hereby
irrevocably directs the Swing Line Lender to act on its behalf), on one Business
Day's notice given by the Swing Line Lender no later than 12:00 noon, New York
City time, request each Revolving Credit Lender to make, and each Revolving
Credit Lender hereby agrees to make, a Revolving Credit Loan, in an amount equal
to such Revolving Credit Lender's Revolving Credit Percentage of the aggregate
amount of the Swing Line Loans (the "REFUNDED SWING LINE LOANS") outstanding on
the date of such notice, to repay the Swing Line Lender. Each Revolving Credit
Lender shall make the amount of such Revolving Credit Loan available to the
Administrative Agent at the Funding Office in immediately available funds, not
later than 12:00 noon, New York City time, one Business Day after the date of
such notice. The proceeds of such Revolving Credit Loans shall be immediately
made available by the Administrative Agent to the Swing Line Lender for
application by the Swing Line Lender to the repayment of the Refunded Swing Line
Loans. The Borrower irrevocably authorizes the Swing Line Lender to charge the
Borrower's accounts with the
-28-
Administrative Agent (up to the amount available in each such account) in order
to immediately pay the amount of such Refunded Swing Line Loans to the extent
amounts received from the Revolving Credit Lenders are not sufficient to repay
in full such Refunded Swing Line Loans.
(c) If prior to the time a Revolving Credit Loan would have
otherwise been made pursuant to Section 2.7(b), one of the events described in
Section 8(f) shall have occurred and be continuing with respect to the Borrower
or if for any other reason, as determined by the Swing Line Lender in its sole
discretion, Revolving Credit Loans may not be made as contemplated by Section
2.7(b), each Revolving Credit Lender shall, on the first Business Day following
demand by the Swing Line Lender therefor (the "REFUNDING DATE"), purchase for
cash an undivided participating interest in the then outstanding Swing Line
Loans by paying to the Swing Line Lender an amount (the "SWING LINE
PARTICIPATION AMOUNT") equal to (i) such Revolving Credit Lender's Revolving
Credit Percentage times (ii) the sum of the aggregate principal amount of Swing
Line Loans then outstanding.
(d) Whenever, at any time after the Swing Line Lender has
received from any Revolving Credit Lender such Lender's Swing Line Participation
Amount, the Swing Line Lender receives any payment on account of the Swing Line
Loans, the Swing Line Lender will distribute to such Revolving Credit Lender its
Swing Line Participation Amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Revolving Credit
Lender's participating interest was outstanding and funded and, in the case of
principal and interest payments, to reflect such Revolving Credit Lender's pro
rata portion of such payment if such payment is not sufficient to pay the
principal of and interest on all Swing Line Loans then due); PROVIDED, HOWEVER,
that in the event that such payment received by the Swing Line Lender is
required to be returned, such Revolving Credit Lender will return to the Swing
Line Lender any portion thereof previously distributed to it by the Swing Line
Lender.
(e) Each Revolving Credit Lender's obligation to make the
Loans referred to in Section 2.7(b) and to purchase participating interests
pursuant to Section 2.7(c) shall be absolute and unconditional and shall not be
affected by any circumstance, including (i) any setoff, counterclaim,
recoupment, defense or other right which such Revolving Credit Lender or the
Borrower may have against the Swing Line Lender, the Borrower or any other
Person for any reason whatsoever; (ii) the occurrence or continuation of any
Default or the failure to satisfy any of the other conditions precedent
specified in Section 5; (iii) any adverse change in the condition (financial or
otherwise) of the Borrower; (iv) any breach of this Agreement or any other Loan
Document by the Borrower, any other Loan Party or any other Revolving Credit
Lender; or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing.
2.8 REPAYMENT OF LOANS; EVIDENCE OF INDEBTEDNESS.
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of the appropriate Lender (i) the then
unpaid principal amount of each Revolving Credit Loan on the Revolving Credit
Termination Date (or such earlier date on which the Loans become due and payable
pursuant to Section 8), (ii) the then unpaid principal amount of each Swing Line
Loan on the Revolving Credit Termination Date (or such earlier date on which the
Loans become due and payable pursuant to Section 8) and (iii) the principal
amount of each Term Loan in installments or at maturity as set forth in Section
2.3 (or on such earlier date on which the Loans become due and payable pursuant
to Section 8). The Borrower hereby further agrees to pay interest on the unpaid
principal amount of the Loans from time to time outstanding from the date hereof
until payment in full thereof at the rates per annum, and on the dates, set
forth in Section 2.15.
-29-
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing Indebtedness of the Borrower to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent, on behalf of the Borrower, shall
maintain the Register pursuant to Section 10.6(e), and a subaccount therein for
each Lender, and shall record therein (i) the amount of each Loan made hereunder
and any Note evidencing such Loan, the Type thereof and each Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender hereunder and
(iii) both the amount of any sum received by the Administrative Agent hereunder
from the Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to Section 2.8(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; PROVIDED, HOWEVER, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
the Borrower by such Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent of any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing any Term Loans,
Revolving Credit Loans or Swing Line Loans, as the case may be, of such Lender,
substantially in the forms of Exhibits F-1, F-2 or F-3, respectively, with
appropriate insertions as to date and principal amount (such notes,
respectively, "TERM NOTES", "REVOLVING CREDIT NOTES" and "SWING LINE NOTES").
2.9 COMMITMENT FEES, ETC.
(a) The Borrower agrees to pay to the Administrative Agent,
for the account of each Revolving Credit Lender, a commitment fee for the period
from and including the Closing Date to the last day of the Revolving Credit
Commitment Period, computed at the Commitment Fee Rate determined from day to
day on the average daily amount of the Available Revolving Credit Commitment of
such Lender during the period for which payment is made, payable quarterly in
arrears on the last day of each March, June, September and December and on the
Revolving Credit Termination Date, commencing on the first of such dates to
occur after the date hereof.
(b) The Borrower agrees to pay to each Agent the fees in the
amounts and on the dates from time to time agreed to in writing by the Borrower
pursuant to the Fee Letter.
2.10 TERMINATION OR REDUCTION OF REVOLVING CREDIT COMMITMENTS.
The Borrower shall have the right, upon not less than three Business Days'
notice to the Administrative Agent, to terminate the Revolving Credit
Commitments or, from time to time, to reduce the amount of the Revolving Credit
Commitments; PROVIDED that no such termination or reduction of Revolving Credit
Commitments shall be permitted if, after giving effect thereto and to any
prepayments of the Revolving Credit Loans and Swing Line Loans made on the
effective date thereof, the Total Revolving Extensions of Credit would exceed
the Total Revolving Credit Commitments. Any such reduction shall be in an amount
equal to $1,000,000, or a whole multiple thereof, and shall reduce permanently
the Revolving Credit Commitments then in effect.
2.11 OPTIONAL PREPAYMENTS. The Borrower may at any time and
from time to time prepay the Loans, in whole or in part, without premium or
penalty, upon irrevocable notice delivered to
-30-
the Administrative Agent at least three Business Days prior thereto in the case
of Eurodollar Loans and at least one Business Day prior thereto in the case of
Base Rate Loans, which notice shall (i) designate whether the Borrower is
prepaying Revolving Credit Loans, Term Loans or both and (ii) specify the date
and amount of prepayment and whether the prepayment is of Eurodollar Loans or
Base Rate Loans; PROVIDED that if a Eurodollar Loan is prepaid on any day other
than the last day of the Interest Period applicable thereto, the Borrower shall
also pay any amounts owing pursuant to Section 2.21. Upon receipt of any such
notice the Administrative Agent shall promptly notify each relevant Lender
thereof. If any such notice is given, the amount specified in such notice shall
be due and payable on the date specified therein, together with (except in the
case of Revolving Credit Loans (unless all Revolving Credit Loans are being
repaid and the Revolving Credit Commitments terminated) that are Base Rate Loans
and Swing Line Loans) accrued interest to such date on the amount prepaid.
Optional prepayments of Term Loans shall be applied pro rata against the
remaining installments thereof. Optional partial prepayments of Term Loans and
Revolving Credit Loans shall be in an aggregate principal amount of $1,000,000
or any integral multiple of $500,000 in excess thereof. Optional partial
prepayments of Swing Line Loans shall be in an aggregate principal amount of
$100,000 or a whole multiple thereof.
2.12 MANDATORY PREPAYMENTS AND COMMITMENT REDUCTIONS.
(a) Unless the Required Prepayment Lenders shall otherwise
agree:
(i) if the Borrower or any of its Subsidiaries incurs
any Indebtedness or issues any Disqualified Stock after the Closing
Date (except any incurrence of Indebtedness permitted under Section
7.2), an amount equal to 100% of all Net Cash Proceeds of such
incurrence or issuance shall be applied within one Business Day of such
incurrence or issuance toward the prepayment of the Term Loans and the
reduction of the Revolving Credit Commitments as set forth in Section
2.12(c), PROVIDED, that notwithstanding the foregoing the proceeds of
any Permitted Refinancing may be applied by the Borrower to the
redemption or purchase of the Senior Subordinated Notes;
(ii) if the Borrower or any of its Subsidiaries
issues any Capital Stock (other than any Disqualified Stock) after the
Closing Date (other than (1) Capital Stock, the proceeds of which are
used solely to fund Permitted Acquisitions or constitute or to redeem
or repurchase Senior Subordinated Notes and premiums, costs and
expenses associated therewith and Capital Stock constituting
consideration payable in a Permitted Acquisition, (2) the Preferred
Stock and (3) Capital Stock the proceeds of which are used to redeem
the Preferred Stock in accordance with and subject to the limits set
forth in the Certificates of Designation and premiums, costs and
expenses associated therewith), an amount equal to 50% of the Net Cash
Proceeds of such issuance shall be applied within one Business Day of
such issuance toward the prepayment of the Term Loans and the reduction
of the Revolving Credit Commitments as set forth in Section 2.12(c);
(iii) if the Borrower or any of its Subsidiaries
sells the SA Station and/or the SF Station, an amount equal to 100% of
the Net Cash Proceeds of any such sale in excess of $25,000,000 (until
$25,000,000 of such Net Cash Proceeds has been applied toward the
prepayments described in this subsection (iii)) and thereafter 50% of
such Net Cash Proceeds, shall be applied within one Business Day of
receipt thereof toward the prepayment of the Term Loans and the
reduction of the Revolving Credit Commitments as set forth in Section
2.12(c); and
(iv) if the Borrower or any of its Subsidiaries
receives any purchase price refund or other adjustment in respect of
the KXOL Acquisition, an amount equal to 100% of the such refund or
other adjustment (other than such portion, if any, of such refund
or other
-31-
adjustment that is paid in respect of liabilities of radio station
KXOL-FM) shall be applied within one Business Day of receipt thereof
toward the prepayment of the Term Loans and the reduction of the
Revolving Credit Commitments as set forth in Section 2.12(c).
(b) Unless the Required Prepayment Lenders shall otherwise
agree, if on any date the Borrower or any of its Subsidiaries shall receive Net
Cash Proceeds from any Asset Sale (other than an Asset Sale described above in
Section 2.12(a)(iii)) or Recovery Event then, unless a Reinvestment Notice shall
be delivered in respect thereof, an amount equal to 100% of such Net Cash
Proceeds shall be applied on such date toward the prepayment of the Term Loans
and the reduction of the Revolving Credit Commitments as set forth in Section
2.12(c); PROVIDED that, notwithstanding the foregoing, (i) the aggregate Net
Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement
pursuant to a Reinvestment Notice shall not, when added to all amounts
previously excluded pursuant to a Reinvestment Notice and not yet reinvested in
assets useful in the Borrower's business, exceed $60,000,000 in respect of any
single Asset Sale or $100,000,000 in any fiscal year of the Borrower and (ii) on
each Reinvestment Prepayment Date, an amount equal to the Reinvestment
Prepayment Amount with respect to the relevant Reinvestment Event shall be
applied toward the prepayment of the Term Loans and the reduction of the
Revolving Credit Commitments as set forth in Section 2.12(c).
(c) Amounts to be applied in connection with prepayments and
Commitment reductions made pursuant to this Section 2.12 shall be applied,
FIRST, to the prepayment of the Term Loans pro rata against the remaining
installments thereof (PROVIDED that each Term Loan Lender may decline such
prepayment, and if any Term Loan Lender elects to so decline (i) each Term Loan
Lender that has not so declined shall be offered the option to receive its pro
rata share of any such declined prepayments and (ii) such process shall continue
until either (x) all such prepayments are applied to the Term Loans then
outstanding or (y) none of the Term Loan Lenders will accept any remaining
declined prepayments), SECOND, following payment in full of the Term Loans, to
reduce permanently the Revolving Credit Commitments and, THIRD, to the Borrower
or such other Person as shall be lawfully entitled thereto. Any such reduction
of the Revolving Credit Commitments shall be accompanied by prepayment of the
Revolving Credit Loans and/or Swing Line Loans to the extent, if any, that the
Total Revolving Extensions of Credit exceed the amount of the Total Revolving
Credit Commitments as so reduced, PROVIDED that if the aggregate principal
amount of Revolving Credit Loans and Swing Line Loans then outstanding is less
than the amount of the Total Revolving Credit Commitments as so reduced (because
L/C Obligations constitute a portion thereof), the Borrower shall, to the extent
of the balance of such excess, replace outstanding Letters of Credit and/or
deposit an amount in immediately available funds in a cash collateral account
established with the Administrative Agent for the benefit of the Secured Parties
on terms and conditions satisfactory to the Administrative Agent (and the
Borrower hereby grants to the Administrative Agent, for the ratable benefit of
the Secured Parties, a continuing security interest in all amounts at any time
on deposit in such cash collateral account to secure all L/C Obligations from
time to time outstanding and all other Obligations). If at any time the
Administrative Agent determines that any funds held in such cash collateral
account are subject to any right or claim of any Person other than the
Administrative Agent and the Secured Parties or that the total amount of such
funds is less than the amount of such excess, the Borrower shall, forthwith upon
demand by the Administrative Agent, pay to the Administrative Agent, as
additional funds to be deposited and held in such cash collateral account, an
amount equal to the excess of (A) the amount of such excess over (B) the total
amount of funds, if any, then held in such cash collateral account that the
Administrative Agent determines to be free and clear of any such right and
claim. The application of any prepayment pursuant to Section 2.11 and this
Section 2.12 shall be made, FIRST, to Base Rate Loans and, SECOND, to Eurodollar
Loans. Each prepayment of the Loans under Section 2.11 and this Section 2.12
(except in the case of Revolving Credit Loans (unless the Revolving Credit Loans
are being repaid in full and the Revolving Credit Commitments terminated) that
are Base Rate Loans and Swing Line Loans) shall be accompanied by accrued
interest to the date of such prepayment on the amount prepaid. All prepayments
and Commitment reductions made
-32-
pursuant to this Section 2.12 shall be made without penalty or premium, PROVIDED
that if a Eurodollar Loan is prepaid on any day other than the last day of the
Interest Period applicable thereto, the Borrower shall also pay any amounts
owing pursuant to Section 2.21.
2.13 CONVERSION AND CONTINUATION OPTIONS.
(a) The Borrower may elect from time to time to convert
Eurodollar Loans to Base Rate Loans by giving the Administrative Agent at least
two Business Days' prior irrevocable notice of such election, PROVIDED that any
such conversion of Eurodollar Loans may only be made on the last day of an
Interest Period with respect thereto. The Borrower may elect from time to time
to convert Base Rate Loans to Eurodollar Loans by giving the Administrative
Agent at least three Business Days' prior irrevocable notice of such election
(which notice shall specify the length of the initial Interest Period therefor),
PROVIDED that no Base Rate Loan under a particular Facility may be converted
into a Eurodollar Loan (i) when any Event of Default has occurred and is
continuing if the Administrative Agent or the Majority Facility Lenders in
respect of such Facility have determined in its or their sole discretion not to
permit such conversions or (ii) after the date that is one month prior to the
final scheduled termination or maturity date of such Facility. Upon receipt of
any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving irrevocable notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be applicable to such
Loans, PROVIDED that no Eurodollar Loan under a particular Facility may be
continued as such (i) when any Event of Default has occurred and is continuing
if the Administrative Agent or the Majority Facility Lenders in respect of such
Facility have determined in its or their sole discretion not to permit such
continuations or (ii) after the date that is one month prior to the final
scheduled termination or maturity date of such Facility, and PROVIDED, FURTHER,
that if the Borrower shall fail to give any required notice as described above
in this paragraph or if such continuation is not permitted pursuant to the
preceding proviso, such Loans shall be automatically converted to Base Rate
Loans on the last day of such then expiring Interest Period. Upon receipt of any
such notice the Administrative Agent shall promptly notify each relevant Lender
thereof.
2.14 MINIMUM AMOUNTS AND MAXIMUM NUMBER OF EURODOLLAR
TRANCHES. Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions, continuations and optional prepayments of Eurodollar
Loans hereunder and all selections of Interest Periods hereunder shall be in
such amounts and be made pursuant to such elections so that (a) after giving
effect thereto, the aggregate principal amount of the Eurodollar Loans
comprising each Eurodollar Tranche shall be equal to $1,000,000 or a whole
multiple of $1,000,000 in excess thereof and (b) no more than six Eurodollar
Tranches shall be outstanding at any one time.
2.15 INTEREST RATES AND PAYMENT DATES.
(a) Each Eurodollar Loan shall bear interest for each day
during each Interest Period with respect thereto at a rate per annum equal to
the Eurodollar Rate determined for such day plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per
annum equal to the Base Rate plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of any
Loan or Reimbursement Obligation shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), all
-33-
outstanding Loans and Reimbursement Obligations (whether or not overdue) shall
bear interest at a rate per annum that is equal to (x) in the case of the Loans,
the rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this Section plus 2.0% per annum or (y) in the case of
Reimbursement Obligations, the rate applicable to Base Rate Loans under the
Revolving Credit Facility plus 2.0% per annum and (ii) if all or a portion of
any interest payable on any Loan or Reimbursement Obligation or any commitment
fee or other amount payable hereunder shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the rate then applicable to Base Rate
Loans under the relevant Facility plus 2.0% per annum (or, in the case of any
such other amounts that do not relate to a particular Facility, the rate then
applicable to Base Rate Loans under the Revolving Credit Facility plus 2.0% per
annum), in each case, with respect to clauses (i) and (ii) above, from the date
of such non-payment until such amount is paid in full (after as well as before
judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
Section shall be payable from time to time on demand.
2.16 COMPUTATION OF INTEREST AND FEES.
(a) Interest, fees and commissions payable pursuant hereto
shall be calculated on the basis of a 360-day year for the actual days elapsed,
except that, with respect to Base Rate Loans the rate of interest on which is
calculated on the basis of the Prime Rate, the interest thereon shall be
calculated on the basis of a 365-day (or 366-day, as the case may be) year for
the actual days elapsed. The Administrative Agent shall as soon as practicable
notify the Borrower and the relevant Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the Base Rate or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
Borrower and the relevant Lenders of the effective date and the amount of each
such change in interest rate. Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower
or any Lender, deliver to the Borrower or such Lender a statement showing the
quotations used by the Administrative Agent in determining any interest rate
pursuant to Section 2.15(a).
2.17 INABILITY TO DETERMINE INTEREST RATE. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by reason
of circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Majority Facility Lenders in respect of the relevant Facility that the
Eurodollar Rate determined or to be determined for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (as conclusively
certified by such Lenders) of making or maintaining their affected Loans during
such Interest Period,
(c) the Administrative Agent shall give telecopy or telephonic
notice thereof to the Borrower and the relevant Lenders as soon as practicable
thereafter. If such notice is given (i) any Eurodollar Loans under the relevant
Facility requested to be made on the first day of such Interest Period shall be
made as Base Rate Loans, (ii) any Loans under the relevant Facility that were to
have been converted on the first day of such Interest Period to Eurodollar Loans
shall be continued as Base Rate
-34-
Loans and (iii) any outstanding Eurodollar Loans under the relevant Facility
shall be converted, on the last day of the then current Interest Period with
respect thereto, to Base Rate Loans. If adequate and reasonable means do exist
for ascertaining the Eurodollar Rate for a future Interest Period and the
Eurodollar Rate determined or to be determined for such Interest Period will
adequately and fairly reflect the cost to such Lenders (as conclusively
determined by such Lenders) then such Lenders shall promptly direct the
Administrative Agent to withdraw such notice. Until such notice has been
withdrawn by the Administrative Agent, no further Eurodollar Loans under the
relevant Facility shall be made or continued as such, nor shall the Borrower
have the right to convert Loans under the relevant Facility to Eurodollar Loans.
2.18 PRO RATA TREATMENT AND PAYMENTS.
(a) Each borrowing by the Borrower from the Lenders hereunder,
each payment by the Borrower on account of any commitment fee and any reduction
of the Commitments of the Lenders shall be made pro rata according to the
respective Term Loan Percentages or Revolving Credit Percentages, as the case
may be, of the relevant Lenders. Subject to Section 2.18(c), each payment (other
than prepayments) in respect of principal or interest in respect of the Loans,
and each payment in respect of fees or expenses payable hereunder shall be
applied to the amounts of such obligations owing to the Lenders pro rata
according to the respective amounts then due and owing to the Lenders. The
application of any prepayment pursuant to this Section 2.18 shall be made,
FIRST, to Base Rate Loans and, SECOND, to Eurodollar Loans.
(b) Each prepayment to be applied to Term Loans shall be
allocated among the Term Loan Lenders holding such Term Loans pro rata based on
the principal amount of the Term Loans held by each Term Loan Lender and shall
be applied to the remaining scheduled quarterly installments due on the Term
Loans pursuant to Section 2.3 PRO RATA.
(c) Each payment (including each prepayment) by the Borrower
on account of principal of and interest on the Revolving Credit Loans shall be
made pro rata according to the respective outstanding principal amounts of the
Revolving Credit Loans then held by the Revolving Credit Lenders.
(d) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Payment Office, in Dollars and in
immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. If any
payment hereunder (other than payments on the Eurodollar Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day. If any payment on a Eurodollar Loan becomes
due and payable on a day other than a Business Day, the maturity thereof shall
be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day. In
the case of any extension of any payment of principal pursuant to the preceding
two sentences, interest thereon shall be payable at the then applicable rate
during such extension.
(e) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date
-35-
therefor, such Lender shall pay to the Administrative Agent, on demand, such
amount with interest thereon at a rate equal to the daily average Federal Funds
Effective Rate for the period until such Lender makes such amount immediately
available to the Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this paragraph
shall be conclusive in the absence of manifest error. If such Lender's share of
such borrowing is not made available to the Administrative Agent by such Lender
within three Business Days of such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at the rate
per annum applicable to Base Rate Loans under the relevant Facility, on demand,
from the Borrower.
(f) Unless the Administrative Agent shall have been notified
in writing by the Borrower prior to the date of any payment being made hereunder
that the Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that the Borrower is making such payment, and
the Administrative Agent may, but shall not be required to, in reliance upon
such assumption, make available to the Lenders their respective pro rata shares
of a corresponding amount. If such payment is not made to the Administrative
Agent by the Borrower within three Business Days of such required date, the
Administrative Agent shall be entitled to recover, on demand, from each Lender
to which any amount which was made available pursuant to the preceding sentence,
such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to limit
the rights of the Administrative Agent or any Lender against the Borrower.
2.19 REQUIREMENTS OF LAW.
(a) If the adoption of or any change in any Requirement of Law
or in the interpretation or application thereof or compliance by any Lender with
any request or directive (whether or not having the force of law) from any
central bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
Application or any Eurodollar Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by Section 2.20 and changes in the rate of
tax on, or the imposition of a tax on, the overall net income of such
Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender that is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender on
an after-tax basis for such increased cost or reduced amount receivable. If any
Lender becomes entitled to claim any additional amounts pursuant to this
Section, such Lender shall promptly notify the Borrower (with a copy to the
Administrative Agent) of the event by reason of which it has become so entitled.
-36-
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the Borrower (with a copy to the Administrative
Agent) of a written request therefor, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender on an after-tax
basis for such reduction.
(c) A certificate as to any additional amounts payable
pursuant to this Section submitted by any Lender to the Borrower (with a copy to
the Administrative Agent) shall be conclusive in the absence of manifest error.
The obligations of the Borrower pursuant to this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.20 TAXES.
(a) All payments made by the Borrower under this Agreement or
any other Loan Document shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental Authority,
excluding net income taxes, branch profits taxes and franchise taxes (imposed in
lieu of net income taxes) imposed on the Arranger, any Agent or any Lender as a
result of a present or former connection between the Arranger, such Agent or
such Lender and the jurisdiction of the Governmental Authority imposing such tax
or any political subdivision or taxing authority thereof or therein (other than
any such connection arising solely from the Arranger's, such Agent's or such
Lender's having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement or any other Loan Document). Subject
to the provisions of Section 2.20(f), if any such non-excluded taxes, levies,
imposts, duties, charges, fees, deductions or withholdings ("NON-EXCLUDED
TAXES"), including Other Taxes, are required to be withheld from any amounts
payable to the Arranger, any Agent or any Lender hereunder, the amounts so
payable to the Arranger, such Agent or such Lender shall be increased to the
extent necessary to yield to the Arranger, such Agent or such Lender (after
payment of all Non-Excluded Taxes, including Other Taxes) interest or any such
other amounts that would have been received hereunder had such withholding not
been required. The Borrower or the applicable Subsidiary Guarantor shall make
any required withholding and pay the full amount withheld to the relevant tax
authority or other Governmental Authority in accordance with applicable
Requirements of Law.
(b) The Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable Requirements of Law.
(c) Subject to Section 2.20(f), the Borrower shall indemnify
the Arranger, each Agent and each Lender for the full amount of Non-Excluded
Taxes or Other Taxes arising in connection with payments made under this
Agreement (including any Non-Excluded Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 2.20) paid by the Arranger,
such Agent or Lender or any of their respective Affiliates and any liability
(including penalties, additions to tax interest and expenses) arising therefrom
or with respect thereto. Payment under this indemnification shall be made within
ten days from the date the Arranger, any Agent or any Lender or any of their
respective Affiliates makes written demand therefor.
-37-
(d) Whenever any Non-Excluded Taxes or Other Taxes are payable
by the Borrower, as promptly as possible thereafter the Borrower shall send to
the Administrative Agent for the account of the Arranger or the relevant Agent
or Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof.
(e) The agreements in this Section 2.20 shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
(f) Each Lender (or Transferee) that is not a citizen or
resident of the United States of America, or a corporation, partnership or other
entity created or organized in or under the laws of the United States of America
(or any jurisdiction thereof) (a "NON-U.S. LENDER") shall deliver to the
Borrower and the Administrative Agent (and, in the case of a Participant, to the
Lender from which the related participation shall have been purchased) (i) two
copies of either U.S. Internal Revenue Service Form W-8BEN, Form W-8ECI or Form
W-8IMY (or any successor forms), or, in the case of a Non-U.S. Lender claiming
exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of "portfolio interest", a statement
substantially in the form of Exhibit G to the effect that such Lender is
eligible for a complete exemption from withholding of U.S. taxes under Section
871(h) or 881(c) of the Code and a Form W-8BEN, or any subsequent versions
thereof or successors thereto, and (ii) any other form or certificate required
by a taxing authority (including a certificate required under the Code) that is
requested by the Borrower or the Administrative Agent in writing, properly
completed and duly executed by such Non-U.S. Lender claiming complete exemption
from U.S. federal withholding tax on all payments by the Borrower under this
Agreement and the other Loan Documents. Such forms shall be delivered by each
Non-U.S. Lender on or before the date it becomes a party to this Agreement (or,
in the case of any Participant, on or before the date such Participant purchases
the related participation). In addition, each Non-U.S. Lender shall deliver such
forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify
the Borrower at any time it determines that it is no longer in a position to
provide any previously delivered certificate to the Borrower (or any other form
of certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this paragraph, a Non-U.S. Lender shall
not be required to deliver any form pursuant to this paragraph that such
Non-U.S. Lender is not legally able to deliver. For any period with respect to
which a Lender (or Transferee) has failed to provide the Borrower with the
appropriate forms described in this Section 2.20(f) (other than if such failure
is due to a change in law occurring subsequent to the date on which a form
originally was required to be provided), such Lender (or Transferee) shall not
be entitled to indemnification under Section 2.20 with respect to Non-Excluded
Taxes that would have been avoided but for such failure.
(g) If and to the extent that any Lender is able, in its sole
opinion, to obtain a tax refund or to apply or otherwise take advantage of any
offsetting tax credit or other similar tax benefit arising out of or in
conjunction with any deduction or withholding which gives rise to an obligation
on the Borrower to pay any Non-Excluded Taxes or Other Taxes pursuant to Section
2.20 then such Lender shall, to the extent that in its sole opinion it can do so
without prejudice to the retention of such tax refund or the amount of such
credit or benefit and without any other adverse tax consequences for such
Lender, reimburse to the Borrower at such time as such tax refund or such tax
credit or benefit shall have actually been received by such Lender such amount
as such Lender shall, in its sole opinion, have determined to be attributable to
such tax refund or the relevant deduction or withholding and as will leave such
Lender in no better or worse position than it would have been in if the payment
of such Non-Excluded Taxes or Other Taxes had not been required. Nothing in this
Section 2.20(g) shall oblige any Lender to disclose to the Borrower or any other
person any information regarding its tax affairs or tax computations or
interfere with the right of any Lender to arrange its tax affairs in whatever
manner it thinks fit and, in particular, no Lender shall be under any obligation
to claim relief from its corporate profits or similar tax liability in
-38-
credits or deductions available to it and, if it does claim, the extent, order
and manner in which it does so shall be at its absolute discretion.
2.21 INDEMNITY. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense that such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment or conversion of
Eurodollar Loans on a day that is not the last day of an Interest Period with
respect thereto. Such indemnification may include an amount equal to the excess,
if any, of (i) the amount of interest that would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to borrow, convert or continue to the
last day of such Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have commenced on the date
of such failure) in each case at the applicable rate of interest for such Loans
provided for herein (excluding, however, the Applicable Margin included therein,
if any) over (ii) the amount of interest (as reasonably determined by such
Lender) that would have accrued to such Lender on such amount by placing such
amount on deposit for a comparable period with leading banks in the interbank
eurodollar market. A certificate as to any amounts payable pursuant to this
Section submitted to the Borrower by any Lender shall be conclusive in the
absence of manifest error. This covenant shall survive the termination of this
Agreement and the payment of the Loans and Letters of Credit and all other
amounts payable hereunder.
2.22 ILLEGALITY. Notwithstanding any other provision herein,
if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert Base Rate Loans to Eurodollar Loans shall
forthwith be canceled and (b) such Lender's Loans then outstanding as Eurodollar
Loans, if any, shall be converted automatically to Base Rate Loans on the
respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law. If any such conversion
of a Eurodollar Loan occurs on a day that is not the last day of the then
current Interest Period with respect thereto, the Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to Section 2.21.
2.23 CHANGE OF LENDING OFFICE. Each Lender agrees that, upon
the occurrence of any event giving rise to the operation of Section 2.19,
2.20(a), 2.20(c) or 2.22 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 with the object of avoiding the consequences of such event; PROVIDED
that such designation is made on terms that, in the sole judgment of such
Lender, cause such Lender and its lending office(s) to suffer no economic, legal
or regulatory disadvantage, and PROVIDED, FURTHER, that nothing in this Section
shall affect or postpone any of the obligations of any Borrower or the rights of
any Lender pursuant to Section 2.19, 2.20(a) or 2.22.
2.24 REPLACEMENT OF LENDERS UNDER CERTAIN CIRCUMSTANCES. The
Borrower shall be permitted to replace any Lender that (a) requests
reimbursement for amounts owing pursuant to Section 2.19, 2.20(a) or 2.20(c) or
(b) defaults in its obligation to make Loans hereunder, with a replacement
financial institution; PROVIDED that (i) such replacement does not conflict with
any Requirement of Law, (ii) no Event of Default shall have occurred and be
continuing at the time of such replacement, (iii) prior to any such replacement,
such Lender shall have taken no action under Section 2.23 so as to eliminate the
continued need for payment of amounts owing pursuant to Section 2.19, 2.20(a) or
2.20(c), (iv) the replacement financial institution shall purchase, at par, all
Loans
-39-
and other amounts owing to such replaced Lender on or prior to the date of
replacement, (v) the Borrower shall be liable to such replaced Lender under
Section 2.21 (as though Section 2.21 were applicable) if any Eurodollar Loan
owing to such replaced Lender shall be purchased other than on the last day of
the Interest Period relating thereto, (vi) the replacement financial
institution, if not already a Lender or an Agent, shall be reasonably
satisfactory to the Administrative Agent, (vii) the replaced Lender shall be
obligated to make such replacement in accordance with the provisions of Section
10.6 (PROVIDED that the Borrower shall be obligated to pay the registration and
processing fee referred to therein), (vii) until such time as such replacement
shall be consummated, the Borrower shall pay all additional amounts (if any)
required pursuant to Section 2.19, 2.20(a) or 2.20(c), as the case may be, and
(ix) any such replacement shall not be deemed to be a waiver of any rights that
the Borrower, the Administrative Agent or any other Lender shall have against
the replaced Lender.
SECTION 3. LETTERS OF CREDIT
3.1 L/C COMMITMENT.
(a) Subject to the terms and conditions hereof, the Issuing
Lender, in reliance on the agreements of the other Revolving Credit Lenders set
forth in Section 3.4(a), agrees to issue standby letters of credit ("LETTERS OF
CREDIT") for the account of the Borrower on any Business Day during the
Revolving Credit Commitment Period in such form as may be approved from time to
time by the Issuing Lender; PROVIDED that the Issuing Lender shall not issue any
Letter of Credit if, after giving effect to such issuance, (i) the L/C
Obligations would exceed the L/C Commitment or (ii) the aggregate amount of the
Available Revolving Credit Commitments would be less than zero. Each Letter of
Credit shall (i) be denominated in Dollars and (ii) expire no later than the
earlier of (x) the first anniversary of its date of issuance and (y) the date
which is five Business Days prior to the date specified in clause (a) of the
definition of Revolving Credit Termination Date, PROVIDED that any Letter of
Credit with a one-year term may provide for the renewal thereof for additional
one-year periods (which shall in no event extend beyond the date referred to in
clause (y) above).
(b) The Issuing Lender shall not at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Lender or any L/C Participant to exceed any limits imposed by,
any applicable Requirement of Law.
3.2 PROCEDURE FOR ISSUANCE OF LETTER OF CREDIT. The Borrower
may from time to time request that the Issuing Lender issue a Letter of Credit
by delivering to the Issuing Lender at its address for notices specified herein
an Application therefor, completed to the satisfaction of the Issuing Lender,
and such other certificates, documents and other papers and information as the
Issuing Lender may request. Upon receipt of any Application, the Issuing Lender
will process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall the Issuing Lender be required to issue any
Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other papers
and information relating thereto) by issuing the original of such Letter of
Credit to the beneficiary thereof or as otherwise may be agreed to by the
Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such
Letter of Credit to the Borrower promptly following the issuance thereof. The
Issuing Lender shall promptly furnish to the Administrative Agent, which shall
in turn promptly furnish to the Lenders, notice of the issuance of each Letter
of Credit (including the amount thereof).
3.3 FEES AND OTHER CHARGES.
-40-
(a) The Borrower will pay a fee on the aggregate drawable
amount of each outstanding Letter of Credit at a per annum rate equal to the
Applicable Margin then in effect with respect to Eurodollar Loans under the
Revolving Credit Facility, shared ratably among the Revolving Credit Lenders and
payable quarterly in arrears on each L/C Fee Payment Date after the issuance
date of such Letter of Credit. In addition, the Borrower shall pay to the
Issuing Lender for its own account a fronting fee as agreed between the Issuing
Lender and the Borrower.
(b) In addition to the foregoing fees, the Borrower shall pay
or reimburse the Issuing Lender for such normal and customary costs and expenses
as are incurred or charged by the Issuing Lender in issuing, negotiating,
effecting payment under, amending or otherwise administering any Letter of
Credit.
3.4 L/C PARTICIPATIONS.
(a) The Issuing Lender irrevocably agrees to grant and hereby
grants to each L/C Participant, and, to induce the Issuing Lender to issue
Letters of Credit hereunder, each L/C Participant irrevocably agrees to accept
and purchase and hereby accepts and purchases from the Issuing Lender, on the
terms and conditions hereinafter stated, for such L/C Participant's own account
and risk an undivided interest equal to such L/C Participant's Revolving Credit
Percentage in the Issuing Lender's obligations and rights under each Letter of
Credit issued hereunder and the amount of each draft paid by the Issuing Lender
thereunder. Each L/C Participant unconditionally and irrevocably agrees with the
Issuing Lender that, if a draft is paid under any Letter of Credit for which the
Issuing Lender is not reimbursed in full by the Borrower in accordance with the
terms of this Agreement, such L/C Participant shall pay to the Issuing Lender,
regardless of the occurrence or continuance of a Default or the failure to
satisfy any of the other conditions specified in Section 5, on the first
Business Day after demand, at the Issuing Lender's address for notices specified
herein an amount equal to such L/C Participant's Revolving Credit Percentage of
the amount of such draft, or any part thereof, that is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant
to the Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Lender under any Letter of Credit is
paid to the Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to the Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii) the daily average
Federal Funds Effective Rate during the period from and including the date such
payment is required to the date on which such payment is immediately available
to the Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant to
Section 3.4(a) is not made available to the Issuing Lender by such L/C
Participant within three Business Days after the date such payment is due, the
Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the
rate per annum applicable to Base Rate Loans under the Revolving Credit
Facility. A certificate of the Issuing Lender submitted to any L/C Participant
with respect to any amounts owing under this Section shall be conclusive in the
absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with Section 3.4(a), the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied thereto
by the Issuing Lender), or any payment of interest on account thereof, the
Issuing Lender will distribute to such L/C Participant its pro rata share
thereof; PROVIDED, HOWEVER, that in the event that any such payment received by
the Issuing Lender shall be required to be returned by the Issuing Lender, such
L/C
-41-
Participant shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender to it.
3.5 REIMBURSEMENT OBLIGATION OF THE BORROWER. The Borrower
agrees to reimburse the Issuing Lender on each date on which the Issuing Lender
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit and paid by the Issuing Lender for the amount of (a) such draft
so paid and (b) any taxes, fees, charges or other costs or expenses incurred by
the Issuing Lender in connection with such payment (the amounts described in the
foregoing clauses (a) and (b) in respect of any drawing, collectively, the
"PAYMENT AMOUNT"). Each such payment shall be made to the Issuing Lender at its
address for notices specified herein in lawful money of the United States of
America and in immediately available funds. Interest shall be payable on each
Payment Amount from the date of the applicable drawing until payment in full at
the rate set forth in (i) until the second Business Day following the date of
the applicable drawing, Section 2.15(b) and (ii) thereafter, Section 2.15(c).
Each drawing under any Letter of Credit shall (unless an event of the type
described in clause (i) or (ii) of Section 8(f) shall have occurred and be
continuing with respect to the Borrower, in which case the procedures specified
in Section 3.4 for funding by L/C Participants shall apply) constitute a request
by the Borrower to the Administrative Agent for a borrowing pursuant to Section
2.5 of Base Rate Loans (or, at the option of the Administrative Agent and the
Swing Line Lender in their sole discretion, a borrowing pursuant to Section 2.7
of Swing Line Loans) in the amount of such drawing. The Borrowing Date with
respect to such borrowing shall be the first date on which a borrowing of
Revolving Credit Loans (or, if applicable, Swing Line Loans) could be made,
pursuant to Section 2.5 (or, if applicable, Section 2.7), if the Administrative
Agent had received a notice of such borrowing at the time of such drawing under
such Letter of Credit.
3.6 OBLIGATIONS ABSOLUTE. The Borrower's obligations under
this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
that the Borrower may have or have had against the Issuing Lender, any
beneficiary of a Letter of Credit or any other Person. The Borrower also agrees
with the Issuing Lender that the Issuing Lender shall not be responsible for,
and the Borrower's Reimbursement Obligations under Section 3.5 shall not be
affected by, among other things, the validity or genuineness of documents or of
any endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the Borrower and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of the Borrower against
any beneficiary of such Letter of Credit or any such transferee. The Issuing
Lender shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit. The Borrower agrees that
any action taken or omitted by the Issuing Lender under or in connection with
any Letter of Credit or the related drafts or documents, if done in accordance
with the standards or care specified in the Uniform Commercial Code of the State
of New York, shall be binding on the Borrower and shall not result in any
liability of the Issuing Lender to the Borrower.
3.7 LETTER OF CREDIT PAYMENTS. If any draft shall be presented
for payment under any Letter of Credit, the Issuing Lender shall promptly notify
the Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with such
Letter of Credit.
-42-
3.8 APPLICATIONS. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter
into this Agreement and to induce the Lenders to make the Loans and issue or
participate in the Letters of Credit, the Borrower hereby represents and
warrants to the Agents and Lenders that:
4.1 FINANCIAL CONDITION.
(a) The unaudited pro forma consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at June 30, 2003 (including the
notes thereto), copies of which have heretofore been furnished to each Lender,
has been prepared giving effect (as if such events had occurred on such date) to
(i) the consummation of the Facilities and the Preferred Stock issuance and (ii)
the payment of fees and expenses in connection with the foregoing (including
such adjustments, the "PRO FORMA BALANCE SHEET"). The Pro Forma Balance Sheet
has been prepared based on the best information available to the Borrower as of
the date of delivery thereof, and presents fairly on a pro forma basis the
estimated financial position of Borrower and its consolidated Subsidiaries as at
June 30, 2003, assuming that the events specified in the preceding sentence had
actually occurred at such date.
(b) The audited consolidated balance sheets of the Borrower
and its Subsidiaries as at December 29, 2002, December 30, 2001 and September
30, 2001, and the related consolidated statements of income and of cash flows
for the fiscal years, or in the case of the December 30, 2001 balance sheets,
the three-month transitional period, ended on such dates, reported on by and
accompanied by an unqualified report from KPMG LLP, present fairly in all
material respects the consolidated financial condition of the Borrower and its
Subsidiaries as at each such date, and the consolidated results of its
operations and its consolidated cash flows for the respective fiscal years, or
in the case of the December 30, 2001 balance sheets, the three-month
transitional period, then ended. The unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as at June 30, 2003, and the related unaudited
consolidated statements of income and cash flows for the six-month period ended
on such date, present fairly in all material respects the consolidated financial
condition of the Borrower and its Subsidiaries as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
six-month period then ended (subject to normal year-end audit adjustments). All
such financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by the aforementioned firm of accountants
and disclosed therein). The Borrower and its Subsidiaries have no material
Guarantee Obligations, contingent liabilities or liabilities for taxes, or any
long-term leases or unusual forward or long-term commitments, including any
interest rate or foreign currency swap or exchange transaction or other
obligation in respect of derivatives, that are not reflected in the most recent
financial statements referred to in this paragraph, to the extent same are
required to be so reflected. During the period from December 29, 2002 to and
including the Closing Date there has been no Disposition by any of the Borrower
or its Subsidiaries of any material part of its business or Property.
4.2 NO CHANGE. Since December 29, 2002, there has been no
development or event that has had or could reasonably be expected to have a
Material Adverse Effect.
4.3 EXISTENCE; COMPLIANCE WITH LAW. Except as set forth in
Schedule 4.3, each of the Borrower and its Subsidiaries (a) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the corporate or other applicable organizational power
-43-
and authority, and the legal right, to own and operate its Property, to lease
the Property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of Property or the conduct of its business requires such qualification
and (d) is in compliance with all Requirements of Law except to the extent that
the failure to comply therewith could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
4.4 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. Each Loan
Party has the corporate or other applicable organizational power and authority,
and the legal right, to make, deliver and perform the Loan Documents to which it
is a party and, in the case of the Borrower, to borrow hereunder. Each Loan
Party has taken all necessary corporate action to authorize the execution,
delivery and performance of the Loan Documents to which it is a party and, in
the case of the Borrower, to authorize the borrowings on the terms and
conditions of this Agreement. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement
or any of the Loan Documents, except (i) consents, authorizations, filings and
notices that have been obtained or made and are in full force and effect and
(ii) the filings referred to in Section 4.19. The Loan Documents and the Senior
Subordinated Note Indenture have been duly executed and delivered on behalf of
each Loan Party party thereto. This Agreement constitutes, and each other Loan
Document and the Senior Subordinated Note Indenture constitutes or upon
execution will constitute, a legal, valid and binding obligation of each Loan
Party party thereto, enforceable against each such Loan Party in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 NO LEGAL BAR. The execution, delivery and performance of
this Agreement and the other Loan Documents, the issuance of Letters of Credit,
the borrowings hereunder and the use of the proceeds thereof will not violate
any Requirement of Law or any Contractual Obligation of the Borrower or any of
its Subsidiaries and will not result in, or require, the creation or imposition
of any Lien on any of their respective properties or revenues pursuant to any
Requirement of Law or any such Contractual Obligation (other than the Liens
created by the Security Documents). No Requirement of Law or Contractual
Obligation applicable to the Borrower or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
4.6 NO MATERIAL LITIGATION. Except as set forth on Schedule
4.6, no litigation, investigation or proceeding of or before any arbitrator
or Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against the Borrower or any of its Subsidiaries or against any
of their respective properties or revenues (a) with respect to any of the
Loan Documents or any of the transactions contemplated hereby or thereby or (b)
that could reasonably be expected to have a Material Adverse Effect.
4.7 NO DEFAULT. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect that could reasonably be expected to have a Material
Adverse Effect. No Default has occurred and is continuing.
4.8 OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and its
Subsidiaries has good, marketable and insurable title in fee simple to, or a
valid leasehold interest in, all its material real property, and good title to,
or a valid leasehold interest in or adequate rights to use, all its other
material Property, and none of such material Property is subject to any Lien
except as permitted by Section 7.3.
-44-
4.9 INTELLECTUAL PROPERTY. The Borrower and each of its
Subsidiaries owns, or is licensed to use, all Intellectual Property necessary
for the conduct of its business as currently conducted. Except as set forth on
Schedule 4.9, no material claim has been asserted or is pending by any Person
challenging or questioning the use of any Intellectual Property or the validity
or effectiveness of any Intellectual Property, nor does the Borrower know of any
valid basis for any such claim. To the best knowledge of the Borrower, the use
of Intellectual Property by the Borrower and its Subsidiaries does not infringe
on the rights of any Person in any material respect.
4.10 TAXES. Each of the Borrower and its Subsidiaries has
filed or caused to be filed all Federal, state and other material tax returns
that are required to be filed and has paid all taxes shown to be due and payable
on said returns or on any assessments made against it or any of its Property and
all other material taxes, fees or other charges imposed on it or any of its
Property by any Governmental Authority (other than any the amount or validity of
which are currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be). The contents of
all such material tax returns are correct and complete in all material respects.
Except as set forth in Schedule 4.10, no tax Lien has been filed, and, to the
knowledge of the Borrower, no claim is being asserted, with respect to any such
tax, fee or other charge.
4.11 FEDERAL REGULATIONS. No part of the proceeds of the Loans
or Letters of Credit will be used for purchasing or carrying any "margin stock"
(within the meaning of Regulation U) or for the purpose of purchasing, carrying
or trading in any securities under such circumstances as to involve the Borrower
in a violation of Regulation X or to involve any broker or dealer in a violation
of Regulation T. No indebtedness being reduced or retired out of the proceeds of
the Loans or Letters of Credit was or will be incurred for the purpose of
purchasing or carrying any "margin stock" (within the meaning of Regulation U).
Following application of the proceeds of the Loans and Letters of Credit,
"margin stock" (within the meaning of Regulation U) does not constitute more
than 25% of the value of the assets of the Borrower and its Subsidiaries. None
of the transactions contemplated by this Agreement (including the direct and
indirect use of proceeds of the Loans and Letters of Credit) will violate or
result in a violation of Regulation T, Regulation U or Regulation X. If
requested by any Lender or the Administrative Agent, the Borrower will furnish
to the Administrative Agent and each Lender a statement to the foregoing effect
in conformity with the requirements of FR Form G-3 or FR Form U-1 referred to in
Regulation U.
4.12 LABOR MATTERS. There are no strikes, stoppages, slowdowns
or other labor disputes against the Borrower or any of its Subsidiaries pending
or, to the knowledge the Borrower, threatened that (individually or in the
aggregate) could reasonably be expected to have a Material Adverse Effect. Hours
worked by and payment made to employees of the Borrower and its Subsidiaries
have not been in violation of the Fair Labor Standards Act or any other
applicable Requirement of Law dealing with such matters that (individually or in
the aggregate) could reasonably be expected to have a Material Adverse Effect.
All payments due from the Borrower or any of its Subsidiaries on account of
employee health and welfare insurance that (individually or in the aggregate)
could reasonably be expected to have a Material Adverse Effect if not paid have
been paid or accrued as a liability on the books of the Borrower or the relevant
Subsidiary.
4.13 ERISA. Neither a Reportable Event nor an "ACCUMULATED
FUNDING DEFICIENCY" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period ending on the date on
which this representation is made or deemed made with respect to any Plan, and
each Plan has complied and has been administered in all material respects with
all applicable provisions of ERISA and the Code. During such five-year period,
(i) no termination of a Single Employer Plan has occurred, (ii) no filing of any
notice of intent to terminate a Single Employer Plan has been made, (iii) the
PBGC has not instituted any proceedings under Section 4042 of ERISA for the
-45-
termination of, or the appointment of a trustee to administer, any Single
Employer Plan and (iv) no Lien in favor of the PBGC or a Plan has arisen with
respect to any Plan. There exists no Unfunded Pension Liability (determined as
of the last applicable annual valuation date prior to the date on which this
representation is made or deemed made) with respect to Single Employer Plans in
the aggregate, taking into account only Single Employer Plans with positive
Unfunded Pension Liability, could reasonably be expected to be material. Each
Plan which is intended to be qualified under Section 401(a) of the Code has been
determined by the IRS to be so qualified, and, nothing has occurred since the
date of such determination that would adversely affect such determination. There
has been no failure to make a required contribution to any Plan that would
result in the imposition of an encumbrance under Section 412 of the Code or
Section 302 of ERISA and there has been no filing of any request for a minimum
funding waiver under Section 412 of the Code with respect to any Plan. No
non-exempt prohibited transaction within the meaning of Section 4975 of the Code
or Section 406 of ERISA has occurred with respect to any Plan that has resulted
or could reasonably be expected to result in a material liability to the
Borrower or any Subsidiary. Neither the Borrower nor any Commonly Controlled
Entity has incurred any liability under Title IV of ERISA with respect to any
Plan (other than premiums due and not delinquent under Section 4007 of ERISA).
Neither the Borrower nor any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan that has resulted or could
reasonably be expected to result in a material liability under ERISA, and
neither the Borrower nor any Commonly Controlled Entity would become subject to
any material liability under ERISA if the Borrower or any such Commonly
Controlled Entity were to withdraw completely from all Multiemployer Plans as of
the valuation date most closely preceding the date on which this representation
is made or deemed made. To the best knowledge of the Borrower, no such
Multiemployer Plan is in Reorganization or Insolvent.
4.14 INVESTMENT COMPANY ACT; OTHER REGULATIONS. No Loan Party
is an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
No Loan Party is subject to regulation under any Requirement of Law (other than
Regulation X) which limits or conditions its ability to incur Indebtedness.
4.15 SUBSIDIARIES.
(a) The Subsidiaries listed on Schedule 4.15 constitute all
the Subsidiaries of the Borrower as of the Closing Date. Schedule 4.15 sets
forth as of the Closing Date the name and jurisdiction of formation of each
Subsidiary and, as to each such Subsidiary, the percentage and number of each
class of Capital Stock thereof owned by the Borrower and its Subsidiaries.
(b) As of the Closing Date, none of the Borrower or any of its
Subsidiaries has issued, or authorized the issuance of, any Disqualified Stock.
4.16 USE OF PROCEEDS.
(a) The proceeds of the Term Loans shall be used solely to (i)
finance the KXOL Acquisition, (ii) pay costs and expenses incurred in connection
with the Facilities and with the Borrower's issuance of the Preferred Stock (to
be set forth on the Closing Date on a sources and uses table attached hereto as
Schedule 4.16(a)), (iii) provide excess cash to the Borrower and (iv) fund
working capital purposes, capital needs and general corporate purposes of the
Borrower and its Subsidiaries.
(b) The proceeds of the Revolving Credit Loans, the Swing Line
Loans and the Letters of Credit shall be used for working capital purposes,
capital needs and general corporate purposes of the Borrower and its
Subsidiaries.
-46-
4.17 ENVIRONMENTAL MATTERS. Other than exceptions to any of
the following that could not, individually or in the aggregate, reasonably be
expected to result in the payment of a Material Environmental Amount:
(a) The Borrower and its Subsidiaries (i) are, and within the
period of all applicable statutes of limitation have been, in compliance with
all applicable Environmental Laws; and (ii) reasonably believe that compliance
with any Environmental Law that is or is expected to become applicable to any of
them will be timely attained and maintained, without material expense.
(b) Materials of Environmental Concern are not present at, on,
under, in, or about any real property now or formerly owned, leased or operated
by the Borrower or any of its Subsidiaries, or at any other location (including
any location to which Materials of Environmental Concern have been sent for
re-use or recycling or for treatment, storage, or disposal) which could
reasonably be expected to (i) give rise to liability of the Borrower or any of
its Subsidiaries under any applicable Environmental Law, or (ii) interfere with
the Borrower's or any of its Subsidiaries' continued operations, or (iii) impair
the fair saleable value of any real property owned or leased by the Borrower or
any of its Subsidiaries.
(c) There is no judicial, administrative or arbitral
proceeding (including any notice of violation or alleged violation) under or
relating to any Environmental Law to which the Borrower or any of its
Subsidiaries is, or to the knowledge of the Borrower will be, named as a party
that is pending or, to the knowledge of the Borrower, threatened.
(d) Neither the Borrower nor any of its Subsidiaries has
received any written request for information, or been notified that it is a
potentially responsible party under or relating to the federal Comprehensive
Environmental Response, Compensation, and Liability Act or any similar
Environmental Law, or with respect to any Materials of Environmental Concern.
(e) Neither the Borrower nor any of its Subsidiaries has
entered into or agreed to any consent decree, order, or settlement or other
agreement, or is subject to any judgment, decree, or order or other agreement,
in any judicial, administrative, arbitral, or other forum for dispute
resolution, relating to compliance with or liability under any Environmental
Law.
(f) Neither the Borrower nor any of its Subsidiaries has
assumed or retained, by contract or operation of law, any liabilities of any
kind, fixed or contingent, known or unknown, under any Environmental Law or with
respect to any Material of Environmental Concern.
4.18 ACCURACY OF INFORMATION, ETC. No statement or information
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other document, certificate or statement furnished
to the Arranger, any Agent or any Lender by or on behalf of the Borrower or any
of its Subsidiaries for use in connection with the transactions contemplated by
this Agreement or the other Loan Documents, contained as of the date such
statement, information, document or certificate was so furnished (or, in the
case of the Confidential Information Memorandum, as of the date of this
Agreement), any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained herein or
therein not misleading. The projections and pro forma financial information
contained in the materials referenced above are based upon good faith estimates
and assumptions believed by management of the Borrower to be reasonable at the
time made, it being recognized by the Lenders that such financial information as
it relates to future events is not to be viewed as fact and that actual results
during the period or periods covered by such financial information may differ
from the projected results set forth therein by a material amount. There is no
fact known to the Borrower or any of its Subsidiaries that could reasonably be
expected to have a Material Adverse Effect that has not been expressly disclosed
herein, in the other Loan Documents, in the Confidential
-47-
Information Memorandum or in any other documents, certificates and written
statements furnished to the Arranger, the Agents and the Lenders for use in
connection with the transactions contemplated hereby and by the other Loan
Documents.
4.19 SECURITY DOCUMENTS.
(a) The Guarantee and Collateral Agreement is effective to
create in favor of the Administrative Agent, for the benefit of the Secured
Parties, a legal, valid and enforceable security interest in the Collateral
described therein and proceeds thereof. In the case of the Pledged Securities
(described, and as defined, in the Guarantee and Collateral Agreement), when any
certificates, notes or other instruments representing such Pledged Securities
are delivered to the Administrative Agent, and in the case of the other
Collateral described in the Guarantee and Collateral Agreement (other than
Intellectual Property, which is addressed in paragraph (b) of this Section
4.19), when financing statements in appropriate form are filed in the offices
specified on Schedule 4.19 (which financing statements have been duly authorized
and completed by the Administrative Agent), the Guarantee and Collateral
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the Loan Parties in such Collateral and the
proceeds thereof as security for the Obligations, in each case prior and
superior in right to any other Person, except, in the case of Collateral other
than Pledged Securities, Liens permitted by Section 7.3.
(b) The Intellectual Property Security Agreements are
effective to create in favor of the Administrative Agent, for the benefit of the
Secured Parties, a legal, valid and enforceable security interest in the
Intellectual Property Collateral described therein and proceeds thereof. Upon
the filing of (i) the Patent Security Agreement Supplement and the Trademark
Security Agreement Supplement in the appropriate indexes of the United States
Patent and Trademark Office relative to patents and trademarks, respectively
(within three (3) months after the Closing Date), and the Copyright Security
Agreement Supplement in the appropriate indexes of the United States Copyright
Office relative to copyrights (within thirty (30) days after the Closing Date),
together with provision for payment of all requisite fees, and (ii) financing
statements in appropriate form for filing in the offices specified on Schedule
4.19 (which financing statements have been duly completed and executed by the
Administrative Agent), the Intellectual Property Security Agreements shall
constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the Loan Parties in the Intellectual Property Collateral and the
proceeds and products thereof, as security for the Obligations, in each case
prior and superior in right to any other Person (it being understood that
subsequent recordings in the United States Patent and Trademark Office and the
United States Copyright Office may be necessary to perfect a Lien on any
After-Acquired Intellectual Property (as defined in the Guarantee and Collateral
Agreement)), except Liens permitted by Section 7.3.
4.20 SOLVENCY. Each Loan Party is, and after giving effect to
the incurrence of all Indebtedness and obligations being incurred in connection
with the Loan Documents, the Preferred Stock issuance and the KXOL Acquisition
will be and will continue to be, Solvent.
4.21 SENIOR INDEBTEDNESS. The Obligations (including the
Guarantee Obligations of each Subsidiary Guarantor under the Guarantee and
Collateral Agreement) constitute "SENIOR DEBT" and "DESIGNATED SENIOR DEBT"
under and as defined in the Senior Subordinated Note Indenture and, as and when
issued in accordance with this Agreement, Exchange Subordinated Debt or, if
applicable, Indebtedness incurred in a Permitted Refinancing (under clause (1)
of the definition of such term) and constitute Indebtedness permitted to exist
under the Senior Subordinated Note Indenture and, as and when issued in
accordance with this Agreement, the Exchange Subordinated Debt or Indebtedness
incurred in a Permitted Refinancing. The provisions of Article Ten of the Senior
Subordinated Note Indenture and as and when issued in accordance with this
Agreement, Article Ten of the indenture that will govern the
-48-
Exchange Subordinated Debt or (if such Indebtedness is Subordinated Debt) the
subordination provisions of such Indebtedness, are enforceable by each Lender
and each other holder of Obligations in accordance with their terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.22 INSURANCE. Each of the Borrower and its Subsidiaries is
insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the businesses in
which it is engaged; and none of the Borrower or any of its Subsidiaries (a) has
received notice from any insurer or agent of such insurer that substantial
capital improvements or other material expenditures will have to be made in
order to continue such insurance or (b) has any reason to believe that it will
not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers at a cost that could
not reasonably be expected to have a Material Adverse Effect. The Administrative
Agent, as agent for the Lenders, has been named as loss payee on all property
and casualty insurance policies for the benefit of any Loan Party and as
additional insured on all liability insurance policies for the benefit of any
Loan Party.
4.23 PERMITS AND LICENSES.
(a) The FCC Licenses held by the Borrower and its Subsidiaries
constitute all of the licenses, permits and other authorizations issued by the
FCC that are necessary for the Borrower and its Subsidiaries to conduct their
business in the manner in which it is currently being conducted.
(b) All FCC Licenses relating to the business of the Borrower
and its Subsidiaries are in full force and effect, valid for the balance of the
license terms normally applicable to radio stations licensed to the states in
which the stations are licensed, and are not subject to any conditions outside
the ordinary course. The stations subject to such FCC Licenses are operating,
and have been operated since their construction or acquisition by the Borrower
or any of its Subsidiaries, in material compliance with the Communications Act,
the FCC's rules, regulations and written policies promulgated thereunder and
with the terms of the FCC Licenses. As of the Closing Date, (i) neither the
Borrower nor any Subsidiary has received any notice of apparent liability,
notice of violation, order to show cause or other writing from the FCC that may
lead to any liability or sanction by the FCC and (ii) there is no proceeding
pending by or before the FCC relating to the Borrower or any Subsidiary or any
station, nor, to the best knowledge of the Borrower or any Subsidiary, is any
such proceeding threatened and no complaint or investigation is pending or
threatened by or before the FCC (other than rulemaking proceedings of general
applicability to which the Borrower and its Subsidiaries and the stations are
not parties). The Borrower and its Subsidiaries have timely filed all required
reports and notices with the FCC and have paid all amounts due in timely fashion
on account of fees and charges to the FCC.
(c) All FCC Licenses relating to the business of the Borrower
and its Subsidiaries (except, to the extent elected by the Borrower, FCC
Licenses that are owned solely by one or more of the Excluded Foreign
Subsidiaries and relate solely to the business conducted by any of the Excluded
Foreign Subsidiaries) are held by one or more Broadcast License Subsidiaries.
(d) Other than exceptions to any of the following that could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect (or, in the case of Environmental Permits, result in the payment
of a Material Environmental Amount) (i) each of the Borrower and its
Subsidiaries has obtained and holds all Permits required for any property owned,
leased or otherwise operated by or on behalf of, or for the benefit of, such
Person and for the operation of each of its businesses as presently conducted
and as proposed to be conducted, (ii) all such Permits are in full force and
effect, and each of the Borrower and its Subsidiaries has performed and observed
all requirements of
-49-
such Permits, (iii) no event has occurred which allows or results in, or after
notice or lapse of time would allow or result in, revocation or termination by
the issuer thereof or in any other impairment of the rights of the holder of any
such Permit, (iv) none of such Permits contain any restrictions, either
individually or in the aggregate, that are materially burdensome to the Borrower
or any of its Subsidiaries, or to the operation of any of their respective
businesses or any property owned, leased or otherwise operated by such Person,
(v) each of the Borrower and its Subsidiaries reasonably believes that each of
its Permits will be timely renewed and complied with, without material expense,
and that any additional Permits that may be required of such Person will be
timely obtained and complied with, without material expense, and (vi) the
Borrower has no knowledge or reason to believe that any Governmental Authority
is considering limiting, suspending, revoking or renewing on materially
burdensome terms any such Permit.
(e) No consent or authorization of, filing with or Permit
from, or other act by or in respect of, any Governmental Authority is required
in connection with the execution, delivery, performance, validity or
enforceability of this Agreement and the other Loan Documents other than FCC
approval of the transfer of FCC Licenses to Broadcast License Subsidiaries,
which (except in the case of FCC Licenses owned solely by one or more of the
Excluded Foreign Subsidiaries and relating solely to the business conducted by
any of the Excluded Foreign Subsidiaries that the Borrower has not transferred
to a Broadcast License Subsidiary) has been obtained.
SECTION 5. CONDITIONS PRECEDENT
5.1 CONDITIONS TO INITIAL EXTENSION OF CREDIT. The agreement
of each Lender to make the initial extension of credit requested to be made by
it is subject to the satisfaction, prior to or concurrently with the making of
such extension of credit on the Closing Date and in any event on or before
November 15, 2003, of the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly authorized officer
of the Borrower, (ii) the Guarantee and Collateral Agreement, executed and
delivered by a duly authorized officer of the Borrower and each Subsidiary
Guarantor, (iii) each Intellectual Property Security Agreement, executed and
delivered by a duly authorized officer of the Borrower and each Subsidiary
Guarantor, and (iv) if requested by any Lender, for the account of such Lender,
Notes conforming to the requirements hereof and executed and delivered by a duly
authorized officer of the Borrower.
(b) Pro Forma Balance Sheet; Financial Statements. The Lenders
shall have received (i) the Pro Forma Balance Sheet, (ii) audited consolidated
financial statements of the Borrower and its Subsidiaries for the 2002 and 2001
fiscal years and the three-month transitional period ended December 30, 2001 and
(iii) unaudited interim consolidated financial statements of the Borrower and
its Subsidiaries for the fiscal quarters ended March 31, 2003 and June 30, 2003,
and such financial statements shall not, in the reasonable judgment of the
Lenders, reflect any material adverse change in the consolidated financial
condition of the Borrower and its Subsidiaries, as reflected in the financial
statements or projections contained in the Confidential Information Memorandum.
(c) Approvals. All governmental and third-party approvals
necessary or, in the discretion of the Administrative Agent, reasonably
appropriate in connection with the continuing operations of the Borrower and its
Subsidiaries and the transactions contemplated hereby shall have been obtained
and be in full force and effect, and all applicable waiting periods shall have
expired without any action being taken or threatened by any competent authority
that would restrain, prevent or otherwise impose adverse conditions on the
financing contemplated hereby.
-50-
(d) Related Agreements. The Administrative Agent shall have
received (in a form and substance reasonably satisfactory to the Administrative
Agent), with a copy for each Lender, true and correct copies, certified as to
authenticity by the Borrower, of the KXOL Acquisition Agreement, and all
material Acquisition Documentation related thereto.
(e) Fees. The Arranger, the Agents and the Lenders shall have
received all amounts payable under the Fee Letter on or before the Closing Date,
and the Administrative Agent shall have received, to the extent payable under
this Agreement or the Commitment Letter, reimbursement of all reasonable
out-of-pocket expenses of the Arranger and the Administrative Agent invoiced to
and payable by the Borrower on or prior to the Closing Date in connection with
the transactions contemplated by the Facilities.
(f) Business Plan. The Lenders shall have received a business
plan of the Borrower and its Subsidiaries for the fiscal years 2004 through and
including 2009.
(g) Solvency. The Lenders shall have received a Solvency
Certificate executed by the chief financial officer of the Borrower.
(h) Lien Searches. The Administrative Agent shall have
received the results of recent lien, tax lien and other searches in each of the
jurisdictions or offices (including in the United States Patent and Trademark
Office and the United States Copyright Office) in which Uniform Commercial Code
financing statements or other filings or recordations should be made to evidence
or perfect security interests in the Collateral, which results reveal no Liens
on any of the Property of the Borrower or any of its Subsidiaries other than
Liens permitted by Section 7.3 or Liens to be discharged on or prior to the
Closing Date pursuant to documentation satisfactory to the Administrative Agent.
(i) Closing Certificate. The Administrative Agent shall have
received a certificate of each Loan Party, dated as of the Closing Date,
substantially in the form of Exhibit H, with appropriate insertions and
attachments.
(j) Other Certifications. The Administrative Agent shall have
received the following:
(i) a copy of the Governing Documents of each Loan
Party, certified (as of a date reasonably near the Closing Date) as
being a true and correct copy thereof by the Secretary of State or
other applicable Governmental Authority of the jurisdiction in which
such Loan Party is organized;
(ii) a copy of a good standing certificate of the
Secretary of State or other applicable Governmental Authority of the
jurisdiction in which each Loan Party is organized, dated reasonably
near the Closing Date, and
(iii) as requested by the Administrative Agent, a
copy of a good standing certificate of the Secretary of State or other
applicable Governmental Authority of any jurisdiction in which the
Borrower or any of its Subsidiaries is qualified as a foreign
corporation or entity, dated reasonably near the Closing Date.
(k) Legal Opinions. The Lenders shall have received the legal
opinion of Xxxx Xxxxxxx LLP, counsel to the Borrower and its Subsidiaries, and
of local counsel for the Borrower, in each case, covering such matters incident
to the transactions contemplated by this Agreement as the
-51-
Administrative Agent may reasonably require and in form and substance reasonably
satisfactory to the Administrative Agent.
(l) Pledged Collateral. The Administrative Agent shall have
received the certificates, notes and other instruments representing the Pledged
Securities pledged pursuant to the Guarantee and Collateral Agreement, all
endorsed in blank (or accompanied by an executed transfer form in blank
satisfactory to the Administrative Agent) by the pledgor thereof.
(m) Filings, Registrations and Recordings. The Administrative
Agent shall have received, in proper form for filing, registration or
recordation, each Mortgage and each other document (including Uniform Commercial
Code financing statements) required by the Security Documents or under law or
reasonably requested by the Administrative Agent to be filed, registered or
recorded in order to evidence or perfect the Liens granted to the Administrative
Agent in the Security Documents, and all documents described in Section 6.10(b)
as to the parcels of real estate listed on Schedule 5.1(m), and the Borrower
shall have paid all recording costs, title insurance premiums and other amounts
in connection therewith.
(n) Insurance. The Administrative Agent shall have received
insurance certificates satisfying the requirements of Section 6.5(b).
(o) Consolidated EBITDA. The Administrative Agent shall have
received a certificate of a Responsible Officer of the Borrower stating that
Consolidated EBITDA for the 12-month period ended June 30, 2003 was at least
$41,500,000.
(p) KXOL Acquisition. Concurrently with the funding of the
Term Loans, the closing of the KXOL Acquisition shall occur (with no waivers,
amendments or other modifications to the KXOL Acquisition Agreement except those
as may be acceptable to the Administrative Agent).
(q) Preferred Stock Issuance. The Borrower shall have issued
the Preferred Stock having an aggregate liquidation value and for cash
consideration of at least $75,000,000, on terms reasonably acceptable to the
Arranger.
(r) Ratings. The Term Loan Facility shall have been rated at
least (i) B+ by S&P and (ii) B1 by Xxxxx'x.
(s) Environmental Matters. The Lenders shall be satisfied with
the environmental affairs of the Borrower and its Subsidiaries of the parcels of
real estate listed on Schedule 5.1(m).
(t) Miscellaneous. The Administrative Agent shall have
received such other documents, agreements, certificates and information as it
may reasonably request.
5.2 CONDITIONS TO EACH EXTENSION OF CREDIT. The agreement of
each Lender to make any extension of credit requested to be made by it on any
date (including its initial extension of credit) is subject to the satisfaction
of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by any Loan Party in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as of such
date as if made on and as of such date.
(b) No Default. No Default shall have occurred and be
continuing on such date or after giving effect to the extensions of credit
requested to be made on such date.
-52-
(c) Pro Forma Financial Covenant Compliance. After giving
effect to such extension of credit and the application of the proceeds thereof
as if they had occurred on the last day of the fiscal quarter of the Borrower
then most recently ended, the Consolidated Leverage Ratio and the Consolidated
Senior Secured Debt Ratio shall not exceed the maximum ratios that would have
been permitted under Sections 7.1(c) and (e), respectively, as of such day.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as any of the
Commitments remain in effect, any Letter of Credit remains outstanding or any of
the principal of or interest on any Loan or Reimbursement Obligation is
outstanding, the Borrower shall and shall cause each of its Subsidiaries to:
6.1 FINANCIAL STATEMENTS. Furnish to the Administrative Agent
and each Lender:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower, a copy of the audited
consolidated balance sheet of the Borrower and its consolidated Subsidiaries as
at the end of such year and the related audited consolidated statements of
income and of cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, reported on without a "going
concern" or like qualification or exception, or qualification arising out of the
scope of the audit, by KPMG LLP or other independent certified public
accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 45
days after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the Borrower
and its consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and of cash flows for such quarter
and the portion of the fiscal year through the end of such quarter, setting
forth in each case in comparative form the figures for the previous year,
certified by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments and the absence of
footnotes).
6.2 CERTIFICATES; OTHER INFORMATION. Furnish to the
Administrative Agent and each Lender, or, in the case of Section 6.2(j), to the
relevant Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a), a certificate of the independent certified public
accountants reporting on such financial statements stating that in making the
examination necessary therefor no knowledge was obtained of any Default arising
under Section 7.1 or Section 7.7, except as specified in such certificate;
(b) concurrently with the delivery of any financial statements
pursuant to Section 6.1, (i) a certificate of a Responsible Officer stating
that, to the best of such Responsible Officer's knowledge, each Loan Party
during such period has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement and the
other Loan Documents to which it is a party to be observed, performed or
satisfied by it, and that such Responsible Officer has obtained no knowledge of
any continuing Default except as specified in such certificate, (ii) in the case
of quarterly or annual financial statements, a Compliance and Pricing
Certificate containing all information and calculations necessary for
determining compliance by the Borrower and its Subsidiaries with the provisions
of this Agreement referred to therein as of the last day of the fiscal quarter
or fiscal year of the Borrower, as the case may be, and (iii) in the case of
annual financial statements, to the extent not previously disclosed to the
Administrative Agent in writing, a listing of any Intellectual Property acquired
by any Loan Party since the date of the most recent list delivered pursuant to
this clause (iii) (or, in the case of the first such list so delivered, since
the Closing Date);
-53-
(c) as soon as available, and in any event no later than 45
days after the end of each fiscal year of the Borrower, for the following fiscal
year, a detailed projected income statement, a projected condensed statement of
cash flows, and a projected condensed consolidated balance sheet, and, as soon
as available, significant revisions, if any, of such projections with respect to
such following fiscal year (collectively, the "PROJECTIONS"), which Projections
shall in each case be accompanied by a certificate of a Responsible Officer
stating that such Projections have been approved by the board of directors of
the Borrower, it being recognized that such Projections are not to be viewed as
fact and that actual results during the subject fiscal year may differ from the
projected results set forth therein by a material amount;
(d) within 45 days after the end of each fiscal quarter of the
Borrower, the information required to be set forth in a quarterly report on Form
10-Q filed pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended;
(e) within five Business Days after the same are sent, copies
of all financial statements and reports that the Borrower or any of its
Subsidiaries sends to the holders of any class of its debt securities or public
equity securities and, within five days after the same are filed, copies of all
financial statements and reports that the Borrower or any of its Subsidiaries
may make to, or file with, the SEC;
(f) as soon as possible and in any event within five Business
Days of obtaining knowledge thereof, (i) notice of any development, event, or
condition that, individually or in the aggregate with other developments, events
or conditions, could reasonably be expected to result in the payment by the
Borrower or any of its Subsidiaries, in the aggregate, of a Material
Environmental Amount; and (ii) any notice that any Governmental Authority may
deny any application for an Environmental Permit or any other material Permit
held by the Borrower or any of its Subsidiaries on terms and conditions that are
materially burdensome to the Borrower or any of its Subsidiaries, or to the
operation of any of its businesses or any Property owned, leased or otherwise
operated by such Person;
(g) on the date of the occurrence thereof, notice that (i) any
or all of the obligations under the Senior Subordinated Note Indenture have been
accelerated or (ii) the trustee or the required holders of Senior Subordinated
Notes has given notice that any or all such obligations are to be accelerated;
(h) to the extent not included in clauses (a) through (h)
above, no later than the date the same are delivered thereunder, copies of all
agreements, documents or other instruments (including (i) audited and unaudited,
pro forma and other financial statements, reports, forecasts, and projections,
together with any required certifications thereon by independent public auditors
or officers of the Borrower or any of its Subsidiaries or otherwise, (ii) press
releases, (iii) statements or reports furnished to any other holder of the
securities of the Borrower or any of its Subsidiaries and (iv) regular, periodic
and special securities reports), in each case, that the Borrower or any of its
Subsidiaries is required to provide pursuant to the terms of the Senior
Subordinated Note Indenture;
(i) (i) promptly and in any event within fifteen days after
the Borrower, any Subsidiary or any Commonly Controlled Entity files a Schedule
B (or such other schedule as contains actuarial information) to IRS Form 5500 in
respect of any Plan with Unfunded Pension Liabilities, a copy of such IRS Form
5500 (including the Schedule B);
(ii) promptly and in any event within thirty days
after the Borrower, any Subsidiary or any Commonly Controlled Entity
knows or has reason to know that any event described in Section 8(g)
(an "ERISA EVENT") that, individually or when aggregated with any other
ERISA Event, could reasonably be expected to have a Material Adverse
Effect has
-54-
occurred, the written statement of a Responsible Officer of such
Person, as applicable, describing such ERISA Event and the action, if
any, that it proposes to take with respect thereto and a copy of any
notice filed with the PBGC or the IRS pertaining thereto; and
(iii) promptly and in any event within thirty days
after the Borrower, any Subsidiary or any Commonly Controlled Entity
becoming aware of any of the following a detailed written description
thereof from a Responsible Officer of such Person: (w) a material
increase in Unfunded Pension Liabilities, taking into account only
Single Employer Plans with positive Unfunded Pension Liabilities, (x)
the existence of potential withdrawal liability under Section 4201 of
ERISA, if the Company and the Commonly Controlled Entities were to
completely or partially withdraw from all Multiemployer Plans, (y) the
adoption of, or the commencement of contributions to, any Plan subject
to Section 412 of the Code by Borrower, any Subsidiary or any Commonly
Controlled Entity or (z) the adoption of any amendment to a Plan
subject to Section 412 of the Code that could result in a material
increase in contribution obligations of Borrower, any Subsidiary or
Commonly Controlled Entity; and
(j) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
6.3 PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature, if the failure to do so
could reasonably be expected to have a Material Adverse Effect.
6.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE, FCC
LICENSES, ETC.
(a) Preserve, renew and keep in full force and effect its
corporate existence and take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of its
business, except as otherwise permitted by Section 7.4 and except to the extent
that failure to take any such action could not reasonably be expected to have a
Material Adverse Effect;
(b) Duly perform and observe its obligations under the KXOL
Acquisition Agreement, and comply with all other Contractual Obligations and all
Requirements of Law except to the extent that failure to comply with such other
Contractual Obligations and Requirements of Law could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect; and
(c) Operate all of the Stations in material compliance with
the Communications Act and the FCC's rules, regulations and written policies
promulgated thereunder and with the terms of the FCC Licenses, timely file all
required reports and notices with the FCC and pay all amounts due in timely
fashion on account of fees and charges to the FCC, timely file and prosecute all
applications for renewal or for extension of time with respect to all of the FCC
Licenses and advise the Administrative Agent of any deviation from the foregoing
and of any written communication from the FCC outside the ordinary course.
6.5 MAINTENANCE OF PROPERTY; INSURANCE.
(a) Keep all material Property and systems useful and
necessary in its business in good working order and condition, ordinary wear and
tear and damage by casualty excepted.
(b) Maintain with financially sound and reputable insurance
companies insurance on all its Property (including all inventory, equipment and
vehicles) in at least such amounts and against at
-55-
least such risks as are usually insured against in the same general area by
companies engaged in the same or a similar business; and furnish to the
Administrative Agent with copies for each Lender, upon written request, full
information as to the insurance carried. All insurance shall provide that no
cancellation, material reduction in amount or material change in coverage
thereof shall be effective until at least 30 days (10 days in the case of
non-payment) after receipt by the Administrative Agent of written notice
thereof. The Administrative Agent for its own benefit and for the benefit of the
Lenders shall be named as additional insured on all such liability insurance
policies, and the Administrative Agent shall be named as loss payee on all
property and casualty insurance policies.
(c) Deliver to the Administrative Agent (i) on the Closing
Date, a certificate dated such date showing the amount and types of insurance
coverage as of such date, (ii) upon request of the Administrative Agent from
time to time, full information as to the insurance carried, (iii) forthwith,
notice of any cancellation or nonrenewal of coverage, (iv) promptly after such
information is available to any of the Borrower or any of its Subsidiaries, full
information as to any claim for an amount in excess of $5,000,000 with respect
to any property and casualty insurance policy maintained by any of the Borrower
or its Subsidiaries and (v) concurrently with the delivery of its audited
financial statements for each fiscal year, a report of a reputable insurance
broker with respect to such insurance and such supplemental reports with respect
thereto as the Administrative Agent may from time to time reasonably request.
6.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
(a) Keep proper books of records and account in which full,
true and correct entries in conformity with GAAP and all Requirements of Law
shall be made of all dealings and transactions in relation to its business and
activities; and
(b) permit representatives of the Administrative Agent or any
Lender (with respect to visits by any Lender more frequent than once in any
calendar year, if no Default is continuing, at such Lender's expense) to visit
and inspect any of its properties and examine and, at the Borrower's expense,
make abstracts from any of its books and records at any reasonable time, upon
reasonable notice and as often as may reasonably be desired and to discuss the
business, operations, Properties and financial and other condition of the
Borrower and its Subsidiaries with officers and employees of the Borrower and
its Subsidiaries and with their respective independent certified public
accountants.
6.7 NOTICES. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) the occurrence of any "Event of Default" or term of
similar meaning under the Senior Subordinated Note Indenture or the KXOL
Acquisition Agreement;
(c) any termination, amendment or modification of, or other
change in, the Senior Subordinated Note Indenture, the Certificates of
Designation, the Exchange Subordinated Debt, any Indebtedness incurred in a
Permitted Refinancing, the KXOL Acquisition Agreement or any other Acquisition
Documentation, or any material default thereunder by any party thereto;
(d) any (i) default or event of default under any other
Contractual Obligation of the Borrower or any of its Subsidiaries or (ii)
litigation, investigation or proceeding that may exist at any time between the
Borrower or any of its Subsidiaries and any Governmental Authority, that in
either case, if not cured or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;
-56-
(e) any litigation or proceeding affecting the Borrower or any
of its Subsidiaries in which the amount involved is $5,000,000 or more and not
covered by insurance or in which injunctive or similar relief is sought;
(f) the following events, as soon as possible and in any event
within 30 days after the Borrower or any of its Subsidiaries knows or has reason
to know thereof: (i) the occurrence of any Reportable Event with respect to any
Plan, a failure to make any required contribution to a Plan, the creation of any
Lien in favor of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan, in each case in
connection with or involving an amount that could reasonably be expected to have
a Material Adverse Effect, or (ii) the institution of proceedings or the taking
of any other action by the PBGC or the Borrower or any Commonly Controlled
Entity or any Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan; and
(g) any other development or event that has had or could
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower or the relevant Subsidiary proposes to take
with respect thereto.
6.8 ENVIRONMENTAL LAWS. In each of the following cases, except
as could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect:
(a) Comply in all material respects with, and ensure
compliance in all material respects by all tenants and subtenants, if any, with,
all applicable Environmental Laws and Environmental Permits, and obtain,
maintain and comply in all material respects with and maintain, and ensure that
all tenants and subtenants obtain, maintain and comply in all material respects
with and maintain, any and all Environmental Permits.
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws.
6.9 BROADCAST LICENSE SUBSIDIARIES.
(a) Cause all FCC Licenses (except, at the option of the
Borrower, FCC Licenses that are owned solely by one or more of the Excluded
Foreign Subsidiaries and relate solely to the business conducted by any of the
Excluded Foreign Subsidiaries) to be owned and held at all times by one or more
Broadcast License Subsidiaries.
(b) Ensure that each Broadcast License Subsidiary engages only
in the business of holding FCC Licenses and rights related thereto and that such
restriction is set forth in the Governing Documents of such Broadcast License
Subsidiary.
(c) Cause its financial statements, through appropriate
footnote disclosure, to indicate that the FCC Licenses (except, if applicable,
any FCC Licenses that are owned solely by one or more of the Excluded Foreign
Subsidiaries and relate solely to the business conducted by any of the Excluded
Foreign Subsidiaries) are held by one or more Broadcast License Subsidiaries.
-57-
(d) Conduct its affairs strictly in accordance with its
Governing Documents and observe all necessary, appropriate, and customary
corporate, limited liability company and other organizational formalities,
including keeping separate and accurate minutes of meetings of its board of
directors, shareholders, managers, members or partners, as the case may be,
passing all resolutions or consents necessary to authorize actions to be taken,
and maintaining accurate and separate books, records and accounts and in a
manner permitting the assets and liabilities of the Borrower and each of its
Subsidiaries (including the Broadcast License Subsidiaries) to be easily
separated and readily ascertained.
(e) Ensure that the Property of the Borrower or any of its
Subsidiaries (including each Broadcast License Subsidiary) is not commingled
with the Property of any of the others of them or any other Person and otherwise
remains clearly identifiable.
(f) Conduct the business of the Borrower or any of its
Subsidiaries (including each Broadcast License Subsidiary) solely in its own
name and through its respective duly authorized managers, members, officers or
agents so as not to mislead others as to the identity of the Person with which
those others are concerned.
(g) Ensure that no Broadcast License Subsidiary has any
Indebtedness or other liabilities except under the Guarantee and Collateral
Agreement and liabilities permitted to be incurred under Section 7.16.
(h) Not hold itself out to the public or to any of its
individual creditors as being a unified Person with common assets and
liabilities with the Borrower or any of its Subsidiaries or act in a manner that
would otherwise cause its creditors to believe that the Borrower or any of its
Subsidiaries (including each Broadcast License Subsidiary) is not a separate
entity distinct from each of the others and all other Persons.
(i) Not take any action, or conduct its affairs in any manner,
that could reasonably be expected to result in the separate existence of any
Broadcast License Subsidiary being ignored or the assets and liabilities of any
Broadcast License Subsidiary being substantively consolidated with those of the
Borrower or any of its other Subsidiaries (including any other Broadcast License
Subsidiary) in a bankruptcy, reorganization or other insolvency proceeding.
6.10 ADDITIONAL COLLATERAL, ETC.
(a) With respect to any Property acquired after the Closing
Date by the Borrower or any of its Subsidiaries (other than (x) any Property
described in paragraphs (b), (c) or (d) of this Section, (y) any Excluded Assets
and (z) Property acquired by a Subsidiary that is not a Subsidiary Guarantor) as
to which the Administrative Agent, for the benefit of the Secured Parties, does
not have a perfected Lien, promptly (and, in any event, within 90 days following
the date of such acquisition) (i) execute and deliver to the Administrative
Agent such amendments to the Guarantee and Collateral Agreement or such other
documents as the Administrative Agent deems reasonably necessary or advisable to
grant to the Administrative Agent, for the benefit of the Secured Parties, a
security interest in such Property and (ii) take all actions reasonably
necessary or advisable to grant to the Administrative Agent, for the benefit of
the Secured Parties, a perfected first priority security interest in such
Property (subject only to Liens permitted by Section 7.3 that are not
consensually granted), including, but not limited to, the filing of Uniform
Commercial Code financing statements in such jurisdictions as may be required by
the Guarantee and Collateral Agreement or by law or as may be requested by the
Administrative Agent.
(b) If at any time so requested by the Administrative Agent or
by the Required Lenders with respect to any fee interest in any real property
having a value (net of Liens thereon
-58-
permitted under Section 7.3) of at least $3,000,000 now owned or hereafter
acquired by the Borrower or any Subsidiary Guarantor, promptly (and, in any
event, within 90 days following the date of such request) (i) execute, deliver
(in recordable form) and record a mortgage in favor of the Administrative Agent,
for the benefit of the Secured Parties, covering such real property, (ii) if
requested by the Administrative Agent, provide the Secured Parties with (x)
title and extended coverage insurance covering such real property in an amount
at least equal to the value of such real property (or such other amount as shall
be reasonably specified by the Administrative Agent) as well as a current ALTA
survey thereof, together with a surveyor's certificate, and (y) any consents or
estoppels reasonably deemed necessary or advisable by the Administrative Agent
in connection with such mortgage, each of the foregoing in form and substance
reasonably satisfactory to the Administrative Agent, and (iii) if reasonably
requested by the Administrative Agent, deliver to the Administrative Agent legal
opinions relating to the matters described above, which opinions shall be in
form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
(c) With respect to each Person that now is or hereafter
becomes a Subsidiary of the Borrower (except JuJu Media, Inc. and any Excluded
Foreign Subsidiary) and with respect to each Subsidiary that ceases to be an
Excluded Foreign Subsidiary (but continues to be a Subsidiary), promptly (and,
in any event, within 90 days following such creation or the date of such
acquisition) (i) execute and deliver to the Administrative Agent such amendments
to the Guarantee and Collateral Agreement as the Administrative Agent deems
reasonably necessary or advisable to grant to the Administrative Agent, for the
benefit of the Secured Parties, a perfected first priority security interest in
the Capital Stock of such new Subsidiary that is owned by the Borrower or any of
its Subsidiaries, (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of the Borrower or such
Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a
party to the Guarantee and Collateral Agreement and the Intellectual Property
Security Agreement and (B) to take such actions reasonably necessary or
advisable to grant to the Administrative Agent for the benefit of the Secured
Parties a perfected first priority security interest (subject only to Liens
permitted by Section 7.3 that are not consensually granted) in the Collateral
described in the Guarantee and Collateral Agreement and the Intellectual
Property Security Agreements with respect to such new Subsidiary, including the
recording of instruments in the United States Patent and Trademark Office and
the United States Copyright Office, the execution and delivery by all necessary
Persons of Control Agreements and the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Guarantee
and Collateral Agreement, the Intellectual Property Security Agreements or by
law or as may be requested by the Administrative Agent, and (iv) if requested by
the Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
(d) With respect to any new Excluded Foreign Subsidiary
created or acquired after the Closing Date by the Borrower or any of its
Subsidiaries, promptly (and, in any event, within 90 days following such
creation or the date of such acquisition) (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement
as the Administrative Agent deems reasonably necessary or advisable in order to
grant to the Administrative Agent, for the benefit of the Secured Parties, a
perfected first priority security interest in the Capital Stock of such new
Subsidiary that is owned by the Borrower or any of its Subsidiaries (provided
that in no event shall more than 65% of the total outstanding Capital Stock of
any such new Subsidiary be required to be so pledged), (ii) deliver to the
Administrative Agent the certificates representing such Capital Stock, together
with undated stock powers, in blank, executed and delivered by a duly authorized
officer of the Borrower or such Subsidiary, as the case may be, and take such
other action as may be necessary or, in the reasonable opinion of the
Administrative Agent, desirable to perfect the Lien of the Administrative Agent
thereon and (iii) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the
-59-
matters described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.
(e) Notwithstanding anything to the contrary in this Section
6.10, paragraphs (a), (b), (c) and (d) of this Section 6.10 shall not apply to
any Property, new Subsidiary or new Excluded Foreign Subsidiary created or
acquired after the Closing Date, as applicable, as to which the Administrative
Agent has determined in its sole discretion that the collateral value thereof is
insufficient to justify the difficulty, time and/or expense of obtaining a
perfected Lien thereon.
6.11 USE OF PROCEEDS. Use the proceeds of the Loans lawfully,
in accordance with this Agreement and only for the purposes specified in Section
4.16.
6.12 FURTHER ASSURANCES. From time to time execute and
deliver, or cause to be executed and delivered, such additional instruments,
certificates or documents, and take all such actions, as the Administrative
Agent may reasonably request, for the purposes of implementing or effectuating
the provisions of this Agreement and the other Loan Documents, or of more fully
perfecting or renewing the rights of the Administrative Agent and the Secured
Parties with respect to the Collateral in accordance with the Guarantee and
Collateral Agreement (or with respect to any additions thereto or replacements
or proceeds or products thereof or with respect to any other Property or assets
hereafter acquired that may be deemed to be part of the Collateral) pursuant
hereto or thereto. Upon the exercise by the Administrative Agent or any Lender
of any power, right, privilege or remedy pursuant to this Agreement or the other
Loan Documents that requires any consent, approval, recording, qualification or
authorization of any Governmental Authority, the Borrower will execute and
deliver, or will cause the execution and delivery of, all applications,
certifications, instruments and other documents and papers that the
Administrative Agent or such Lender may be required to obtain from the Borrower
or any of its Subsidiaries for such governmental consent, approval, recording,
qualification or authorization.
6.13 CORPORATE STRUCTURE. Except for JuJu Media, Inc. and
except as otherwise permitted under Section 7.8(h), cause each Subsidiary of
Borrower to be and remain a Wholly Owned Subsidiary of the Borrower.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as any of the
Commitments remain in effect, any Letter of Credit remains outstanding or any of
the principal of or interest on any Loan or Reimbursement Obligation is
outstanding, the Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly:
7.1 FINANCIAL CONDITION COVENANTS.
(a) Consolidated EBITDA. Permit Consolidated EBITDA for the
period of twelve consecutive months ending as of the last day of any fiscal
quarter set forth below to be less than the amount set forth opposite such date
(it being understood that there will be no test under this Section 7.1(a) for
any period ending after June 30, 2005):
Fiscal Quarter Consolidated EBITDA
-------------- -------------------
December 31, 2003 $36,900,000
March 31, 2004 $36,900,000
June 30, 2004 $38,500,000
September 30, 2004 $40,400,000
December 31, 2004 $41,900,000
-60-
March 31, 2005 $43,900,000
June 30, 2005 $45,000,000
(b) Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio for any period of four consecutive
fiscal quarters of the Borrower ending on the last day of any fiscal quarter set
forth below to be less than the ratio set forth below opposite such fiscal
quarter (it being understood that there will be no test under this Section
7.1(b) prior to the fiscal quarter ending on September 30, 2005):
Consolidated Fixed
Charged Coverage
Fiscal Quarter Ratio (x:1)
-------------- ------------------
September 30, 2005 1.00:1
December 31, 2005 1.00:1
March 31, 2006 through and including
December 31, 2006 1.00:1
March 31, 2007 through and including
December 31, 2007 1.05:1
March 31, 2008 through and including
December 31, 2008 1.10:1
March 31, 2009 and each fiscal
quarter thereafter 1.15:1
(c) Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio determined as of the last day of any fiscal quarter set forth
below to exceed the ratio set forth below opposite such fiscal quarter:
Consolidated Leverage
Fiscal Quarter Ratio (x:1)
-------------- ---------------------
December 31, 2003 11.25:1
March 31, 2004 11.25:1
June 30, 2004 11.00:1
September 30, 2004 10.75:1
December 31, 2004 10.50:1
March 31, 2005 10.25:1
June 30, 2005 10.00:1
September 30, 2005 9.75:1
December 31, 2005 9.50:1
March 31, 2006 through and including
December 31, 2006 9.00:1
March 31, 2007 through and including
December 31, 2007 8.50:1
March 31, 2008 through and including
December 31, 2008 8.00:1
March 31, 2009 and each fiscal
quarter thereafter 7.50:1
-61-
(d) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio for any period of four consecutive fiscal
quarters of the Borrower ending on the last day of any fiscal quarter set forth
below to be less than the ratio set forth below opposite such fiscal quarter:
Consolidated Interest
Coverage
Fiscal Quarter Ratio (x:1)
December 31, 2003 not applicable
----------------- ---------------------
March 31, 2004 1.00:1
June 30, 2004 1.00:1
September 30, 2004 1.00:1
December 31, 2004 1.00:1
March 31, 2005 1.05:1
June 30, 2005 1.05:1
September 30, 2005 1.10:1
December 31, 2005 1.10:1
March 31, 2006 through and including
December 31, 2006 1.15:1
March 31, 2007 through and including
December 31, 2007 1.20:1
March 31, 2008 through and including
December 31, 2008 1.25:1
March 31, 2009 and each fiscal
quarter thereafter 1.30:1
(e) Consolidated Senior Secured Debt Ratio. Permit the
Consolidated Senior Secured Debt Ratio determined as of the last day of any
fiscal quarter set forth below to exceed the ratio set forth below opposite such
fiscal quarter:
Consolidated Senior
Secured
Debt
Fiscal Quarter Ratio (x:1)
-------------- -------------------
December 31, 2003 3.25:1
March 31, 2004 3.25:1
June 30, 2004 3.00:1
September 30, 2004 3.00:1
December 31, 2004 2.75:1
March 31, 2005 2.75:1
June 30, 2005 2.75:1
September 30, 2005 2.50:1
December 31, 2005 2.50:1
March 31, 2006 through and including
December 31, 2006 2.50:1
March 31, 2007 through and including
December 31, 2007 2.25:1
March 31, 2008 through and including
December 31, 2008 2.00:1
March 31, 2009 and each fiscal
quarter thereafter 2.00:1
-62-
7.2 LIMITATION ON INDEBTEDNESS. Create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan
Document;
(b) Unsecured Indebtedness (i) constituting Puerto Rico
Intercompany Debt, (ii) of the Borrower outstanding to any Solvent Subsidiary,
(iii) of any Subsidiary Guarantor outstanding to the Borrower or any other
Subsidiary Guarantor or (iv) of any Subsidiary of the Borrower that is not a
Subsidiary Guarantor outstanding to the Borrower or any Subsidiary Guarantor, so
long as the aggregate Investments of the Borrower and the Subsidiary Guarantors
(whether in the form of debt or equity and counted at cost (or if made in assets
at the fair market value thereof when made, as determined in good faith by the
Borrower's board of directors), net of returns of the principal thereof received
in cash thereon) made at any time after the Closing Date in any and all
Subsidiaries of the Borrower that are not Subsidiary Guarantors and in any and
all Persons that are not Subsidiaries of the Borrower does not at any time
exceed $35,000,000; PROVIDED that all such Indebtedness outstanding to the
Borrower or any Subsidiary Guarantor shall be evidenced by promissory notes duly
endorsed and delivered to the Administrative Agent in pledge as security for the
Obligations and, if the Borrower or any Subsidiary Guarantor is the obligor
thereon, subordinated in right of payment to the Obligations on terms and
conditions satisfactory to the Administrative Agent;
(c) Indebtedness of the Borrower or any of its Subsidiaries
(including Capital Lease Obligations) secured by Liens permitted by Section
7.3(g) in an aggregate principal amount, for the Borrower and all of its
Subsidiaries, not exceeding $8,500,000 at any one time outstanding;
(d) Indebtedness (other than the Indebtedness referred to in
Section 7.2(f)) outstanding on the date hereof and listed on Schedule 7.2(d) and
any refinancings, refundings, renewals or extensions thereof (without any
increase in the principal amount thereof or any shortening of the maturity of
any principal amount thereof);
(e) Unsecured Guarantee Obligations made in the ordinary
course of business by the Borrower or any of its Subsidiaries of obligations of
the Borrower or any Subsidiary Guarantor;
(f) Unsecured Indebtedness of the Borrower in respect of
Senior Subordinated Notes outstanding under the Senior Subordinated Note
Indenture in an aggregate principal amount not exceeding $335,000,000 less any
amounts thereof redeemed, repurchased or repaid by Borrower, and the guaranty of
such Indebtedness, on the terms set forth in the Senior Subordinated Note
Indenture, by any Permitted Guarantor;
(g) Seller Indebtedness constituting purchase consideration
for Permitted Acquisitions;
(h) Exchange Subordinated Debt issued in exchange for the
Preferred Stock and the guaranty thereof by any Permitted Guarantor, so long as
at the time of such exchange, and after giving effect thereto, on a pro forma
basis (assuming that such exchange occurred on the first day of the most
recently reported period of twelve consecutive months) the Consolidated Leverage
Ratio shall be not more than 7.00:1.00 and the Consolidated Senior Secured Debt
Ratio shall be not more than 1.75:1.00;
(i) Indebtedness incurred as a result of a Permitted
Refinancing in an aggregate principal amount not in excess of the aggregate
principal amount of Senior Subordinated Notes (plus any call premium payable
upon redemption or repurchase of the Senior Subordinated Notes) outstanding
-63-
immediately prior to the application of proceeds of such Indebtedness, together
with reasonable fees, costs and expenses related thereto; and
(j) additional Indebtedness of the Borrower or any of its
Subsidiaries in an aggregate principal amount (for the Borrower and all
Subsidiaries) not to exceed $5,000,000 at any one time outstanding.
7.3 LIMITATION ON LIENS. Create, incur, assume or suffer to
exist any Lien upon any of its Property, whether now owned or hereafter
acquired, except for:
(a) Liens for taxes, assessments or governmental charges or
levies not yet due and payable or being contested in good faith by appropriate
proceedings, provided that adequate reserves with respect thereto are maintained
on its books in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
landlords', repairmen's or other like Liens arising in the ordinary course of
business that are not overdue for a period of more than 60 days or are being
contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security legislation;
(d) pledges or deposits by or on behalf of the Borrower or any
of its Subsidiaries to secure the performance of tenders, bids, trade contracts
(other than for borrowed money), leases, utilities, statutory obligations,
surety and appeal bonds, performance and return of money bonds and other
obligations of a like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
charges or encumbrances incurred in the ordinary course of business that, in the
aggregate, are not substantial in amount and do not in any case materially
detract from the value of the Property subject thereto or materially interfere
with the ordinary conduct of the business of the Borrower or any of its
Subsidiaries;
(f) Liens in existence on the date hereof listed on Schedule
7.3(f), securing Indebtedness permitted by Section 7.2(d) and refinancings,
renewals and extensions thereof, provided that no such Lien is extended to cover
any additional Property after the Closing Date and that the amount of
Indebtedness secured thereby is not increased; and Liens in existence on the
date hereof listed on Schedule 4.10;
(g) Liens securing Indebtedness of the Borrower or any of its
Subsidiaries incurred pursuant to Section 7.2(c) to finance the acquisition of
fixed or capital assets, provided that (i) such Liens shall be created
substantially simultaneously with the acquisition of such fixed or capital
assets, (ii) such Liens do not at any time encumber any Property other than the
Property financed by such Indebtedness and (iii) the amount of Indebtedness
secured thereby is not increased;
(h) Liens created pursuant to any of the Loan Documents;
(i) any interest or title of a lessor under any lease entered
into by the Borrower or any of its Subsidiaries in the ordinary course of its
business and covering only the assets so leased;
(j) Liens in favor of the Borrower or any of its Subsidiaries,
if and to the extent that the liability secured by such Liens is pledged to the
Administrative Agent for the benefit of the Secured Parties;
-64-
(k) the Lien in favor of the trustee under the Senior
Subordinated Note Indenture or, after issuance of the Exchange Subordinated Debt
or Indebtedness incurred in a Permitted Refinancing in accordance with the terms
of this Agreement, the trustee under the indenture governing the Exchange
Subordinated Debt or such Indebtedness, attaching to money and property held or
collected by such trustee and securing amounts due to it in its individual
capacity, set forth in Section 7.07 of the Senior Subordinated Note Indenture or
the equivalent provision of the indenture set forth in the indenture governing
the Exchange Subordinated Debt or such Indebtedness;
(l) Liens securing judgments that individually and in the
aggregate do not exceed $5,000,000 and that do not constitute a Default; and
(m) Liens not otherwise permitted by this Section 7.3 so long
as neither (i) the aggregate outstanding principal amount of the obligations
secured thereby nor (ii) the aggregate fair market value (determined, in the
case of each such Lien, as of the date such Lien is incurred) of the assets
subject thereto exceeds (as to the Borrower and all Subsidiaries) $2,500,000 at
any one time.
7.4 LIMITATION ON FUNDAMENTAL CHANGES. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or Dispose of all or substantially all
of its Property or business, except that:
(a) any Solvent Subsidiary of the Borrower or, in connection
with a Permitted Acquisition, any Acquired Business, may be merged or
consolidated with or into the Borrower (PROVIDED that the Borrower shall be the
continuing or surviving corporation) or with or into any Subsidiary Guarantor
(PROVIDED that the Subsidiary Guarantor shall be the continuing or surviving
corporation);
(b) any Subsidiary of the Borrower that is not a Subsidiary
Guarantor may Dispose of any or all of its assets (upon voluntary liquidation,
dissolution or otherwise) to its shareholders in accordance with their
respective pro rata interests;
(c) any Subsidiary Guarantor may Dispose of any or all of its
assets (upon voluntary liquidation, dissolution or otherwise) to the Borrower or
any other Subsidiary Guarantor; and
(d) any Wholly Owned Subsidiary of the Borrower that is not a
Subsidiary Guarantor may be merged with or into any other Wholly Owned
Subsidiary of the Borrower that is not a Subsidiary Guarantor.
7.5 LIMITATION ON DISPOSITION OF PROPERTY. Dispose of any of
its Property (including receivables and leasehold interests), whether now owned
or hereafter acquired, or, in the case of any Subsidiary, issue or sell any
shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out Property or other
Property no longer used or useful in the ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions of Cash Equivalents and Dispositions
permitted by Section 7.4;
(d) the sale or issuance of any Subsidiary's Capital Stock
(other than Disqualified Stock) to the Borrower or any Subsidiary Guarantor;
-65-
(e) Asset Sales, each on an arms' length basis, for which the
consideration received is not less than the Fair Market Value of the assets
being disposed of, not to exceed in aggregate (i) $60,000,000 in the case of any
single Asset Sale or (ii) $100,000,000 in any fiscal year of the Borrower,
PROVIDED, HOWEVER, that no Asset Sale involving assets with a Fair Market Value
of more than $20,000,000 may be consummated unless after giving effect to such
Asset Sale and the application of the proceeds thereof, in each case, as if they
had occurred on the first day of the 12-month period ending on the last day of
the fiscal quarter of the Borrower then most recently ended, the Borrower would
have been in compliance, as of the last day of such fiscal quarter, with each of
the financial condition covenants set forth in Section 7.1, PROVIDED, FURTHER,
that in the event that any Permitted Acquisition is consummated concurrently
with such Asset Sale, the pro forma effect of such Permitted Acquisition (as
contemplated by clause (ii) of the definition of "Permitted Acquisition") shall
be taken into account in determining whether such Asset Sale meets the pro forma
compliance test of the immediately preceding proviso;
(f) the Asset Sales referred to in Section 2.12(a)(iii); and
(g) any Recovery Event, if the requirements of Section 2.12(b)
are complied with in connection therewith.
7.6 LIMITATION ON RESTRICTED PAYMENTS. Declare or pay any
dividend (other than dividends payable solely in common stock (excluding
Disqualified Stock) of the Person making such dividend) on, or make any payment
on account of, or set apart assets for a sinking or other analogous fund for,
the purchase, redemption, defeasance, retirement or other acquisition of, any
Capital Stock of the Borrower or any of its Subsidiaries, whether now or
hereafter outstanding, or make any other distribution in respect thereof, either
directly or indirectly, whether in cash or property or in obligations of the
Borrower or any of its Subsidiaries, or enter into any derivatives or other
transaction with any financial institution, commodities or stock exchange or
clearinghouse (a "DERIVATIVES COUNTERPARTY") obligating the Borrower or any of
its Subsidiaries to make payments to such Derivatives Counterparty as a result
of any change in market value of any such Capital Stock or make any payment of
interest in cash on the Exchange Subordinated Debt (collectively, "RESTRICTED
PAYMENTS"), except that:
(a) any Subsidiary of the Borrower may make Restricted
Payments to its shareholders in accordance with their respective pro rata
interests;
(b) the Borrower may pay dividends solely in kind, by
distributing additional shares of the same Capital Stock;
(c) the Borrower may redeem or repurchase the Senior
Subordinated Notes through a Permitted Refinancing;
(d) the Borrower may redeem for cash up to a maximum of 40% of
the outstanding accreted value of the Preferred Stock (at the time of the first
redemption thereof after the Closing Date) with the proceeds of an issuance of
Capital Stock (other than Disqualified Stock) in accordance with and subject to
the limits of the Certificates of Designation;
(e) so long as no Default shall have occurred and be
continuing, the Borrower may purchase Capital Stock of the Borrower from present
or former officers or employees of the Borrower or any of its Subsidiaries upon
the death, disability or termination of employment of such officer or employee,
PROVIDED that the aggregate consideration paid for all such purchases in any
fiscal year of the Borrower (net of amounts repaid in respect of loans
contemplated in Section 7.8(d)(i) and any cash proceeds received subsequent to
the date hereof from the issuance and sale of Management Equity in
-66-
connection with the exercise of common stock options for Management Equity)
shall not exceed $3,000,000;
(f) the exchange of Borrower's 10.75% Series A Cumulative
Exchangeable Redeemable Preferred Stock for Borrower's 10.75% Series B
Cumulative Exchangeable Redeemable Preferred Stock; and
(g) the Borrower may pay cash dividends on the Preferred Stock
so long as at the time of such payment and after giving effect thereto, on a pro
forma basis (assuming that such payment occurred on the first day of the most
recently reported period of twelve consecutive months) the Consolidated Leverage
Ratio shall be not more than 8.50:1.00 and the Consolidated Senior Secured Debt
Ratio shall be not more than 2.00:1.00.
7.7 LIMITATION ON CAPITAL EXPENDITURES. Make or commit to make
any Capital Expenditure, except Capital Expenditures of the Borrower and its
Subsidiaries in the ordinary course of business not exceeding $10,000,000 per
fiscal year; PROVIDED that (i) up to 100% of any such amount referred to above,
if not so expended in the fiscal year for which it is permitted, may be carried
over for expenditure in the next succeeding fiscal year; (ii) Capital
Expenditures made during any fiscal year shall be deemed made, FIRST, in respect
of amounts permitted for such fiscal year as provided above and; SECOND, in
respect of amounts carried over from the prior fiscal year pursuant to clause
(i) above; and (iii) in addition, the Borrower and its Subsidiaries shall be
permitted to make Capital Expenditures during the term of this Agreement in an
amount not exceeding (x) 50% of the Net Cash Proceeds of any issuance and sale
of Capital Stock (other than Disqualified Stock) by the Borrower after the
Closing Date, if such Net Cash Proceeds are used within 365 days from receipt
thereof to pay for such Capital Expenditures, and (y) the proceeds of any
Reinvestment Deferred Amount.
7.8 LIMITATION ON INVESTMENTS. Make any advance, loan,
extension of credit (by way of guaranty or otherwise) or capital contribution
to, or purchase any Capital Stock, bonds, notes, debentures or other debt
securities of, or any assets constituting an ongoing business from, or make any
other investment in, any other Person (all of the foregoing, "INVESTMENTS"),
except:
(a) Investments consisting of extensions of credit in the
nature of accounts receivable or notes receivable arising from the grant of
trade credit in the ordinary course of business, and Investments received in
satisfaction or partial satisfaction thereof from financially troubled account
debtors;
(b) Investments in cash and Cash Equivalents;
(c) Investments arising in connection with the incurrence of
Indebtedness permitted by Sections 7.2(b), 7.2(e) and 7.2(j);
(d) (i) loans made by the Borrower to officers and employees
of the Borrower or any Subsidiary of the Borrower the proceeds of which are
utilized contemporaneously to purchase Management Equity from the Borrower and
(ii) other loans and advances to employees of the Borrower or any Subsidiaries
of the Borrower in the ordinary course of business (including for travel,
entertainment and relocation expenses) in an aggregate amount for the Borrower
and Subsidiaries of the Borrower not to exceed $250,000 at any one time
outstanding;
(e) any Permitted Acquisition made by Borrower directly or
through Wholly Owned Subsidiaries, including the acquisition, formation and
capitalization of any new Wholly
-67-
Owned Subsidiary of the Borrower to consummate a Permitted Acquisition, so long
as the Borrower complies with Section 6.10(c) in respect thereof;
(f) Investments in Capital Stock of a Subsidiary Guarantor, so
long as the Borrower complies with Section 6.10(c) in respect thereof;
(g) Investments existing on the Closing Date and listed on
Schedule 7.8(g);
(h) any Investments in Capital Stock of any Subsidiary of the
Borrower that is not a Subsidiary Guarantor or of any Person that is not a
Subsidiary of the Borrower, so long as the aggregate Investments of the Borrower
and the Subsidiary Guarantors (whether in the form of debt or equity and counted
at cost (or if made in assets at the fair market value thereof when made, as
determined in good faith by the Borrower's board of directors), net of returns
of the principal thereof received in cash thereon) made at any time after the
Closing Date in any and all Subsidiaries of the Borrower that are not Subsidiary
Guarantors and in any and all Persons that are not Subsidiaries of the Borrower
does not at any time exceed $30,000,000; and
(i) in addition to Investments otherwise expressly permitted
by this Section, Investments by the Borrower or any of its Subsidiaries in an
aggregate amount (valued at cost, net of returns of the principal thereof
received in cash thereon) not exceeding $5,000,000; and
(j) Investments in Preferred Stock redeemed in accordance with
Section 7.6(d) or exchanged in accordance with Section 7.2(h) so long as such
Preferred Stock is retired upon acquisition or exchange thereof and Investments
in Senior Subordinated Notes with the proceeds of Indebtedness incurred in a
Permitted Refinancing or with the proceeds of Capital Stock (other than
Disqualified Stock) so long as such Senior Subordinated Notes are retired upon
repurchase or redemption thereof.
7.9 LIMITATION ON SUBORDINATED INDEBTEDNESS.
(a) Make or offer to make any optional or voluntary payment,
prepayment, repurchase or redemption of, or otherwise voluntarily or optionally
defease, any Indebtedness that is subordinated in right of payment to the
Obligations or that constitutes Indebtedness contemplated by clause (2) of the
definition of Permitted Refinancing (other than the redemption or repurchase of
the Senior Subordinated Notes through a Permitted Refinancing) or segregate
funds for any such payment, prepayment, repurchase, redemption or defeasance, or
enter into any derivative or other transaction with any Derivatives Counterparty
obligating the Borrower or any of its Subsidiaries to make payments to such
Derivatives Counterparty as a result of any change in market value of any such
Indebtedness (it being understood that except as provided in paragraph (b)
below, this Agreement does not prohibit Borrower from (x) making an "Asset Sale
Offer" to the extent required by (and as such term is defined in) the indenture
governing the Senior Subordinated Notes (or Exchange Subordinated Debt or any or
Indebtedness incurred in a Permitted Refinancing) in respect of the portion of
the proceeds of such Asset Sale that the Borrower is not required to apply to
the Obligations hereunder or (y) making any payment in respect of any such
"Asset Sale Offer" that is accepted by any holder of Senior Subordinated Notes
(or Exchange Subordinated Debt or any Indebtedness incurred in a Permitted
Refinancing) to the extent so required);
(b) make any payment or distribution in respect of any
Indebtedness that is subordinated in right of payment to the Obligations at any
time when such payment or distribution, or the acceptance thereof, is prohibited
or restricted under the subordination provisions governing such Subordinated
Indebtedness;
-68-
(c) amend, modify or otherwise change, or consent or agree to
any amendment, modification, waiver or other change to, any of the terms
(including the subordination terms) of any of the Senior Subordinated Note
Indenture or any other agreement governing or relating to any Indebtedness that
is subordinated in right of payment to the Obligations, except any such
amendment, modification, waiver or other change which (i) would extend the
maturity or reduce the amount of any payment of principal thereof, reduce the
rate or extend the date for payment of interest thereon or relax any covenant or
other restriction applicable to the Borrower or any of its Subsidiaries and (ii)
does not involve the payment of a consent fee; or
(d) designate any Indebtedness (other than the Obligations) as
"Designated Senior Debt" for the purposes of the Senior Subordinated Note
Indenture or any indenture governing Indebtedness incurred in a Permitted
Refinancing or Exchange Subordinated Debt.
7.10 LIMITATION ON TRANSACTIONS WITH AFFILIATES. Enter into
any transaction, including any purchase, sale, lease or exchange of Property,
the rendering of any service or the payment of any management, advisory or
similar fees, with any Affiliate (other than the Borrower, any Wholly Owned
Subsidiary of the Borrower or any other Subsidiary of the Borrower so long as no
Capital Stock of such other Subsidiary is owned by any Person that controls the
Borrower) unless such transaction is (a) otherwise permitted under this
Agreement, (b) in the ordinary course of business of the Borrower or such
Subsidiary, as the case may be, and (c) upon fair and reasonable terms no less
favorable to the Borrower or such Subsidiary, as the case may be, than it could
reasonably be expected to obtain in a comparable arm's length transaction with a
Person that is not an Affiliate. Notwithstanding the foregoing, the following
transactions shall not be prohibited: (i) fees and compensation paid to, and
indemnity provided on behalf of, officers, directors or employees of the
Borrower or any of its Subsidiaries, to the extent the same are reasonable and
customary, and (ii) transactions pursuant to agreements or arrangements in
effect on the Closing Date and listed on Schedule 7.10.
7.11 LIMITATION ON SALES AND LEASEBACKS. Enter into any
arrangement with any Person providing for the leasing by the Borrower or any of
its Subsidiaries of Property that has been or is to be sold or transferred by
the Borrower or such Subsidiary to such Person or to any other Person to whom
funds have been or are to be advanced by such Person on the security of such
Property or rental obligations of the Borrower or such Subsidiary.
7.12 LIMITATION ON CHANGES IN FISCAL PERIODS. Permit the
fiscal year of the Borrower or any of its Subsidiaries to end on a day other
than December 31 or change the Borrower's or any of its Subsidiaries' method of
determining fiscal quarters.
7.13 LIMITATION ON NEGATIVE PLEDGE CLAUSES. Enter into or
suffer to exist or become effective any agreement that prohibits or limits the
ability of the Borrower or any of its Subsidiaries to create, incur, assume or
suffer to exist any Lien upon any of its Property or revenues, whether now owned
or hereafter acquired, to secure the Obligations or, in the case of any
Guarantor (as defined in the Guarantee and Collateral Agreement), its
obligations under the Guarantee and Collateral Agreement, other than (a) this
Agreement and the other Loan Documents, (b) applicable law and agreements in
effect on the date hereof and listed on Schedule 7.13, (c) any Lease, any
Intellectual Property license agreement under which the Borrower or a Subsidiary
of the Borrower is the licensee, and any other agreement under which the
Borrower or a Subsidiary of the Borrower is entitled to the performance of any
obligation other than the payment of money, if any such prohibition or
limitation is limited to the interest of the Borrower or such Subsidiary
thereunder and in the reasonable judgment of the Borrower, the acceptance of
such prohibition or limitation was necessary to achieve a business purpose of
the Borrower or such Subsidiary, (d) any restriction under any agreement
governing Indebtedness permitted under Section 7.2(c), if such restriction is
enforceable only by the holder of such Indebtedness and applies only to the
assets securing
-69-
such Indebtedness and (e) in any indenture governing Indebtedness incurred in a
Permitted Refinancing or Exchange Subordinated Debt so long as any such
agreement is not more restrictive that the corresponding provision in the Senior
Subordinated Note Indenture as in effect on the Closing Date.
7.14 LIMITATION ON RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS,
ETC.. Enter into or suffer to exist or become effective any consensual
encumbrance or restriction on the ability of the Borrower or any of its
Subsidiaries (or, in the case of clause (a) only, any Subsidiary of the
Borrower) to (a) make Restricted Payments in respect of any Capital Stock of
such Subsidiary held by, or pay or subordinate any Indebtedness owed to, the
Borrower or any other Subsidiary, (b) make Investments in the Borrower or any
other Subsidiary or (c) transfer any of its assets to the Borrower or any other
Subsidiary, except for such encumbrances or restrictions existing under or by
reason of (i) any restrictions existing under the Loan Documents, (ii) any
restrictions with respect to a Subsidiary imposed pursuant to an agreement that
has been entered into in connection with the Disposition of all or substantially
all of the Capital Stock or assets of such Subsidiary, (iii) customary
provisions restricting subletting or assignment of any lease, license or other
contract entered into in the ordinary course of business, (iv) restrictions on
the transfer or disposition of any asset subject to a Lien otherwise permitted
under this Agreement, if such restriction is enforceable only by the holder of
such Lien and only against such assets, (v) restrictions imposed by any joint
venture or similar agreement entered into with respect to Investments otherwise
permitted under this Agreement, (vi) restrictions existing on the Closing Date
and (vii) restrictions contained in any indenture governing Indebtedness
incurred in a Permitted Refinancing or Exchange Subordinated Debt so long as any
such restriction is not more restrictive that the corresponding provision in the
Senior Subordinated Note Indenture as in effect on the Closing Date.
7.15 LIMITATION ON LINES OF BUSINESS. Enter into any business,
either directly or through any Subsidiary, except for Permitted Businesses.
7.16 BROADCAST LICENSE SUBSIDIARIES. In the case of each
Broadcast License Subsidiary, (a) engage in any business or activity other than
holding FCC Licenses and rights related thereto, (b) incur, assume or otherwise
become or remain obligated in respect of any liability except trade payables
incurred in the ordinary course of business and tax liabilities incidental to
ownership of such rights, (c) grant or become subject to any Lien except Liens
securing Obligations or (d) take any Material Action.
7.17 AMENDMENT OF CERTAIN DOCUMENTS.
(a) Amend or permit the amendment of its Governing Documents
in any manner materially adverse to the Lenders.
(b) Amend, modify, supplement or otherwise change the KXOL
Acquisition Agreement or (after they have been provided to the Administrative
Agent and Lenders pursuant to clause (iv)(x) in the definition of "Permitted
Acquisition" and the 10 Business Day period described in clause (iv)(y) of such
definition has expired) any other Acquisition Documentation, except upon written
notice to and the consent of the Administrative Agent (which consent shall not
unreasonably be withheld).
(c) Amend, modify or otherwise change the Senior Subordinated
Note Indenture or any other documents establishing the terms and conditions of
any other Subordinated Debt or the Preferred Stock, in any case, in any manner
that is or could reasonably be expected to be adverse to the Lenders or any
Agent.
-70-
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan
or Reimbursement Obligation when due in accordance with the terms hereof; or the
Borrower shall fail to pay any interest on any Loan or Reimbursement Obligation,
or any other amount payable hereunder or under any other Loan Document, within
five days after any such interest or other amount becomes due in accordance with
the terms hereof; or
(b) Any representation or warranty made or deemed made by any
Loan Party herein or in any other Loan Document or that is contained in any
certificate, document or financial or other statement furnished by it at any
time under or in connection with this Agreement or any such other Loan Document
shall prove to have been inaccurate in any material respect on or as of the date
made or deemed made; or
(c) Any Loan Party shall default in the observance or
performance of any agreement contained in Section 7 or (ii) Section 6.4(a) (with
respect to the Borrower only); or
(d) Any Loan Party shall default in the observance or
performance of any other covenant or agreement contained in this Agreement or
any other Loan Document (other than as provided in paragraphs (a) through (c) of
this Section), and such default shall continue unremedied for a period of thirty
(30) days; or
(e) The Borrower or any of its Subsidiaries shall (i) default
in making any payment of any principal of any Indebtedness (including any
Guarantee Obligation, but excluding the Loans) on the due date with respect
thereto; or (ii) default in making any payment of any interest on any such
Indebtedness beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created; or (iii) default in the
observance or performance of any other agreement or condition relating to any
such Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or to
permit the holder or beneficiary of such Indebtedness (or a trustee or agent on
behalf of such holder or beneficiary) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity or (in
the case of any such Indebtedness constituting a Guarantee Obligation) to become
payable; PROVIDED that a default, event or condition described in clause (i),
(ii) or (iii) of this paragraph (e) shall not at any time constitute an Event of
Default unless, at such time, one or more defaults, events or conditions of the
type described in clauses (i), (ii) and (iii) of this paragraph (e) shall have
occurred and be continuing with respect to Indebtedness the outstanding
principal amount of which exceeds in the aggregate $5,000,000; or
(f) (i) The Borrower or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets, or the
Borrower or any of its Subsidiaries shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against the Borrower
or any of its Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above that (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
-71-
commenced against the Borrower or any of its Subsidiaries any case, proceeding
or other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its assets
that results in the entry of an order for any such relief that shall not have
been vacated, discharged, or stayed or bonded pending appeal within 60 days from
the entry thereof; or (iv) the Borrower or any of its Subsidiaries shall take
any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above;
or (v) the Borrower or any of its Subsidiaries shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as they
become due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to any
Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower, any of its Subsidiaries or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall commence to
have a trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the Borrower or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required Lenders is
likely to, incur any liability in connection with a withdrawal from, or the
Insolvency or Reorganization of, a Multiemployer Plan, (vi) the Borrower, any of
its Subsidiaries or any Commonly Controlled Entity shall be required to make
during any fiscal year of the Borrower payments pursuant to any employee welfare
benefit plans (as defined in Section 3(1) of ERISA) that provides benefits to
retired employees (or their dependents) that, in the aggregate, exceed
$1,000,000, (vii) the Borrower, any of its Subsidiaries or any Commonly
Controlled Entity shall be required to make during any fiscal year of the
Borrower contributions to any defined benefit pension plans subject to Title IV
of ERISA (including any Multiemployer Plan) that, in the aggregate, exceed
$1,600,000 (viii) an aggregate Unfunded Pension Liability (taking into account
only Single Employer Plans with positive Unfunded Pension Liabilities) shall
exist, (ix) any potential withdrawal liability under Section 4201 of ERISA, if
the Borrower, its Subsidiaries and each Commonly Controlled Entity were to
completely or partially withdraw from all Multiemployer Plans shall exist or (x)
any other similar event or condition shall occur or exist with respect to a
Plan; and in each case in clauses (i) through (viii) above, such event or
condition, either in and of itself or together with all other such events or
conditions, if any, could, in the sole judgment of the Required Lenders,
reasonably be expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving for the Borrower and its
Subsidiaries taken as a whole a liability (not paid or covered by insurance in
the reasonable opinion of the Borrower if the Borrower provides evidence of such
coverage to the Administrative Agent) of $5,000,000 or more, and all such
judgments or decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within 30 days from the entry thereof; or
(i) Any of the Security Documents shall cease, for any reason
(other than pursuant to the terms thereof), to be in full force and effect, or
any Loan Party or any Affiliate of any Loan Party shall so assert, or any Lien
created by any of the Security Documents shall cease to be enforceable and of
the same effect and priority purported to be created thereby; or
(j) The guarantee contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason (other than pursuant to the
terms thereof), to be in full force and effect or any Loan Party or any
Affiliate of any Loan Party shall so assert; or
(k) Such provisions of the Senior Subordinated Notes and of
any other Subordinated Debt that provide that the Obligations are senior thereto
shall cease, for any reason, to be in full force and effect or any Loan Party or
any Affiliate of any Loan Party shall so assert; or
-72-
(l) Any Loan Party or any Affiliate of any Loan Party shall
assert in writing that any provision of any Loan Document is not enforceable; or
(m) (i) The Permitted Investors shall cease to have the power
to vote or direct the voting of securities having a majority of the ordinary
voting power for the election of directors of the Borrower (determined on a
fully diluted basis); (ii) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT")), excluding the Permitted Investors, shall become, or obtain
rights (whether by means or warrants, options or otherwise) to 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 35% of the outstanding common stock
of the Borrower; (iii) the board of directors of the Borrower shall cease to
consist of a majority of Continuing Directors; or (iv) a Specified Change of
Control shall occur; or
(n) Any FCC License necessary for the conduct of any business
or activity at any time conducted by the Borrower or any of its Subsidiaries
shall be revoked, annulled, cancelled or the FCC takes any action with respect
to any FCC License, the effect of which could reasonably be expected to result
in, individually or in the aggregate, a Material Adverse Effect;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to any Loan Party,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) shall immediately
become due and payable, and (B) if such event is any other Event of Default,
either or both of the following actions may be taken: (i) upon the request of
the Required Lenders, the Administrative Agent shall, by notice to the Borrower
declare the Commitments to be terminated forthwith, whereupon the Commitments
shall immediately terminate; and (ii) with the consent of the Required Lenders,
the Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) to be due and
payable forthwith, whereupon the same shall immediately become due and payable.
Upon the occurrence and during the continuation of an Event of Default, the
Administrative Agent and the Lenders shall be entitled to exercise any and all
remedies available under the Security Documents, including the Guarantee and
Collateral Agreement, or otherwise available under applicable law or otherwise.
With respect to each Letters of Credit with respect to which presentment for
honor shall not have occurred at the time of an acceleration pursuant to this
paragraph, the Borrower shall at such time either (i) deposit in a cash
collateral account opened by the Administrative Agent an amount in immediately
available funds equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit (and the Borrower hereby grants to the Administrative Agent,
for the ratable benefit of the Secured Parties, a continuing security interest
in all amounts at any time on deposit in such cash collateral account to secure
the undrawn and unexpired amount of such Letters of Credit and all other
Obligations) or (ii) provide to the Issuing Lender with respect to such Letter
of Credit a Qualified Supporting Letter of Credit. If at any time the
Administrative Agent determines that any funds held in such cash collateral
account are subject to any right or claim of any Person other than the
Administrative Agent and the Secured Parties or that the total amount of such
funds is less than the aggregate undrawn and unexpired amount of outstanding
Letters of Credit, the Borrower shall, forthwith upon demand by the
Administrative Agent, pay to the Administrative Agent, as additional funds to be
deposited and held in such cash collateral account, an amount equal to the
excess of (a) such aggregate undrawn and unexpired amount over (b) the total
amount of funds, if any, then held in such cash collateral account that the
Administrative Agent determines to be free and clear of any such right and
claim.
-73-
Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Loan Parties hereunder and under the other Loan Documents.
After all such Letters of Credit shall have expired or been fully drawn upon,
all Reimbursement Obligations shall have been satisfied and all other
obligations of the Loan Parties hereunder and under the other Loan Documents
shall have been paid in full, the balance, if any, in such cash collateral
account shall be returned to the Loan Parties (or such other Person as may be
lawfully entitled thereto).
SECTION 9. THE AGENTS and ARRANGER
9.1 APPOINTMENT. Each Lender hereby irrevocably designates and
appoints Xxxxxx Commercial Paper Inc. as the Administrative Agent under this
Agreement and the other Loan Documents, and each Lender irrevocably authorizes
the Administrative Agent, in such capacity, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, no
Agent shall have any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Loan Document or otherwise exist
against any Agent.
9.2 DELEGATION OF DUTIES. The Administrative Agent may execute
any of its duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
9.3 EXCULPATORY PROVISIONS. Neither the Arranger, nor any
Agent nor any of their respective Related Persons shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Loan Document (except for any
liability imposed by law, but then only if and to the extent found by a final
and nonappealable decision of a court of competent jurisdiction to have resulted
solely from its or any of its Related Persons' personal gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by any Loan Party
or any officer thereof contained in this Agreement or any other Loan Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Arranger or the Agents under or in connection with,
this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or for any failure of any Loan Party party thereto to
perform its obligations hereunder or thereunder or for the creation, validity,
legality, enforceability, perfection, priority, maintenance or enforcement of
any guaranty or Lien required or purporting to be created under any of the Loan
Documents or any other collateral security for the Obligations. As against any
Secured Party, any matter required herein to be satisfactory to, found
acceptable by or otherwise approved by the Administrative Agent may be approved
or disapproved by it in its sole discretion, acting as it may see fit given any
interest that it or its Affiliates may have and without any duty whatsoever to
any other Lender. The Agents shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
-74-
9.4 RELIANCE BY AGENTS. Each Agent shall be entitled to rely,
and shall be fully protected in relying, upon any instrument, writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex,
teletype or e-mail message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including counsel to the Loan Parties), independent accountants and other
experts selected by such Agent. The Agents may deem and treat the payee of any
Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. Each Agent shall be fully justified in failing or refusing
to take any action under this Agreement or any other Loan Document unless it
shall first receive such advice or concurrence of the Required Lenders or the
requisite Lenders required under Section 10.1 to authorize or require such
action (or, if so specified by this Agreement, all Lenders) as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense that may be incurred by it by reason
of taking or continuing to take any such action. Each Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
and the other Loan Documents in accordance with a request of the Required
Lenders or the requisite Lenders under Section 10.1 to authorize or require such
action (or, if so specified by this Agreement, all Lenders), and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Obligations.
9.5 NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default hereunder
unless it has received written notice from a Lender or the Borrower referring to
this Agreement, describing such Default and stating that such notice is a
"notice of default". In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default as
shall be reasonably directed by the Required Lenders (or, if so specified by
this Agreement, all Lenders), except that (a) the Administrative Agent shall not
be required to take any such action that it in good faith determines may be
unlawful or that it in good faith believes may be imprudent or may expose it to
liability, (b) the Administrative Agent shall not be required to take any such
action unless it receives indemnity satisfactory to it from the Persons
directing such action, and (c) unless and until the Administrative Agent shall
have received such direction, the Administrative Agent may decline to act or may
(but shall not be obligated to) take any action that it deems advisable.
9.6 NON-RELIANCE ON AGENTS AND OTHER LENDERS. Each Lender
expressly acknowledges that neither the Arranger nor any of the Agents nor any
of their respective officers, directors, employees, agents, attorneys and other
advisors, partners, attorneys-in-fact or Affiliates have made any
representations or warranties to it and that no act by the Arranger or any Agent
hereinafter taken, including any review of the affairs of a Loan Party or any
Affiliate of a Loan Party, shall be deemed to constitute any representation or
warranty by the Arranger or any Agent to any Lender. Each Lender represents to
the Arranger and the Agents that it has, independently and without reliance upon
the Arranger or any Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition, prospects and creditworthiness of the Loan Parties and their
Affiliates and made its own decision to make its Loans (and in the case of the
Issuing Lender, its Letters of Credit) hereunder and enter into this Agreement.
Each Lender also represents that it will, independently and without reliance
upon the Arranger or any Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition, prospects and
creditworthiness of the Loan Parties and their affiliates. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent hereunder, neither the Arranger nor any Agent shall
have any duty or responsibility
-75-
to provide any Lender with any credit or other information concerning the
business, operations, property, condition (financial or otherwise), prospects or
creditworthiness of any Loan Party or any Affiliate of a Loan Party that may
come into the possession of the Arranger or such Agent or any of its officers,
directors, employees, agents, attorneys and other advisors, partners,
attorneys-in-fact or Affiliates.
9.7 INDEMNIFICATION. The Lenders agree to indemnify the
Arranger and each Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Aggregate Exposure Percentages in effect
on the date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Aggregate Exposure Percentages immediately prior to such date), from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time (including at any time following the payment of
the Loans) be imposed on, incurred by or asserted against the Arranger or such
Agent in any way relating to or arising out of, the Commitments, this Agreement,
any of the other Loan Documents, any Acquisition Documentation or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Arranger or
such Agent under or in connection with any of the foregoing; PROVIDED that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted solely from the Arranger's
or such Agent's gross negligence or willful misconduct. The agreements in this
Section 9.7 shall survive the payment of the Loans and Letters of Credit and all
other amounts payable hereunder.
9.8 ARRANGER AND AGENTS IN THEIR INDIVIDUAL CAPACITIES. The
Arranger and each Agent and their respective Affiliates may make loans to,
accept deposits from and generally engage in any kind of business with any Loan
Party as though the Arranger was not the Arranger and such Agent was not an
Agent. With respect to its Loans made or renewed by it and with respect to any
Letter of Credit issued or participated in by it, the Arranger and each Agent
shall have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not the
Arranger or an Agent, as the case may be, and the terms "Lender" and "Lenders"
shall include the Arranger and each Agent in their respective individual
capacities.
9.9 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent
may resign as Administrative Agent upon 30 days' notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 8(a) or Section
8(f) with respect to the Borrower shall have occurred and be continuing) be
subject to approval by the Borrower (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans or Letters of Credit.
If no successor agent has accepted appointment as Administrative Agent by the
date that is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective, and the Lenders collectively shall assume and
perform all of the duties of the Administrative Agent hereunder until such time,
if any, as the Required Lenders appoint a successor agent as provided for above.
After any retiring Administrative Agent's resignation as such, the provisions
-76-
of this Section 9 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Agreement and the
other Loan Documents.
9.10 AUTHORIZATION TO RELEASE LIENS. The Administrative Agent
is hereby irrevocably authorized by each of the Lenders to release any Lien
covering any Property of the Borrower or any of its Subsidiaries that is the
subject of a Disposition that the Administrative Agent in good faith believes to
be permitted by this Agreement or to have been consented to in accordance with
Section 10.1 or to be owned by any Subsidiary of the Borrower the Capital Stock
of which was transferred, in any such Disposition, to a Person who is not an
Affiliate of the Borrower.
9.11 THE ARRANGER, SYNDICATION AGENT AND CO-DOCUMENTATION
AGENTS. The parties acknowledge and agree that (a) Xxxxxx Brothers Inc. (in such
capacity, the "Arranger") shall be credited as and may publicize that it is the
sole advisor, sole lead arranger and sole book runner of the financing
contemplated hereby, (b) Xxxxxx Commercial Paper Inc. shall be credited as and
may publicize that it is the Syndication Agent of such financing and (c) each of
Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx, Incorporated and Deutsche Bank Securities
Inc. shall be credited as and may publicize that it is one of the
Co-Documentation Agents of such financing. The Arranger, Syndication Agent and
Co-Documentation Agents (i) shall not, by reason of their designation as such or
the provisions of this Section 9 or any action taken or omitted in such
capacity, have any power, duty, responsibility or liability whatsoever under
this Agreement or any other Loan Document or in respect of the financing
contemplated hereby and (ii) shall nevertheless be entitled to all of the
rights, immunities, indemnities and benefits granted to them herein.
SECTION 10. MISCELLANEOUS
10.1 AMENDMENTS AND WAIVERS. Neither this Agreement nor any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
Section 10.1. The Required Lenders and each Loan Party party to the relevant
Loan Document may, or (with the written consent of the Required Lenders) the
Administrative Agent and each Loan Party party to the relevant Loan Document
may, from time to time, (a) enter into written amendments, supplements or
modifications hereto and to the other Loan Documents (including amendments and
restatements hereof or thereof) for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such
terms and conditions as may be specified in the instrument of waiver, any of the
requirements of this Agreement or the other Loan Documents or any Default and
its consequences; PROVIDED, HOWEVER, that no such waiver and no such amendment,
supplement or modification shall (i) forgive the principal amount or extend the
final scheduled date of maturity of any Loan or Reimbursement Obligation, extend
the scheduled date of any amortization payment in respect of any Term Loan,
reduce the stated rate of any interest or fee payable hereunder or extend the
scheduled date of any payment thereof, increase the amount or extend the
expiration date of any Commitment of any Lender or require any consent to be
obtained with respect to any participation or assignment by a Lender other than
as required under Sections 10.6(b) and (c) respectively, in each case without
the consent of each Lender directly affected thereby; (ii) amend, modify or
waive any provision of this Section or reduce any percentage specified in the
definition of "REQUIRED LENDERS", consent to the assignment or transfer by any
Loan Party of any of its rights and obligations under this Agreement and the
other Loan Documents, release all or substantially all of the Collateral or
release all or substantially all of the Subsidiary Guarantors from their
guarantee obligations under the Guarantee and Collateral Agreement, in each case
without the consent of all Lenders; (iii) reduce the percentage specified in the
definition of "MAJORITY FACILITY LENDERS" with respect to any Facility without
the written consent of all Lenders under such Facility; (iv) amend, modify or
waive any provision of Section 9 without the consent of the Arranger or any
Agent directly affected thereby; (v) amend, modify or waive any provision of
Section 2.6 or 2.7 without the written consent of the Swing Line Lender; (vi)
amend, modify or waive any
-77-
provision of Section 2.18 without the consent of each Lender directly affected
thereby; (vii) amend, modify or waive any provision of Section 3 without the
consent of the Issuing Lender; or (viii) amend, modify or waive any condition
precedent to any extension of credit under the Revolving Credit Facility set
forth in Section 5.2 (including the waiver of an existing Default or Event of
Default required to be waived in order for such extension of credit to be made)
without the consent of the Majority Facility Lenders with respect to the
Revolving Credit Facility. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Loan Parties, the Lenders, the Agents, the Arranger and all existing
and future holders of the Obligations. In the case of any waiver, the Loan
Parties, the Lenders, the Arranger and the Agents shall be restored to their
former position and rights hereunder and under the other Loan Documents, and any
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default, or impair any right
consequent thereon. Any such waiver, amendment, supplement or modification shall
be effected by a written instrument signed by the parties required to sign
pursuant to the foregoing provisions of this Section; PROVIDED that delivery of
an executed signature page of any such instrument by facsimile transmission
shall be effective as delivery of a manually executed counterpart thereof. For
the avoidance of doubt, this Agreement may be amended (or amended and restated)
with the written consent of the Required Lenders, the Arranger, the Agents and
the Borrower (x) to add one or more additional credit facilities to this
Agreement and to permit the extensions of credit from time to time outstanding
thereunder and the accrued interest and fees in respect thereof (collectively,
the "ADDITIONAL EXTENSIONS OF Credit") to share ratably in the benefits of this
Agreement and the other Loan Documents with the Term Loans and Revolving
Extensions of Credit and the accrued interest and fees in respect thereof and
(y) to include appropriately the Lenders holding such credit facilities in any
determination of the Required Lenders, Required Prepayment Lenders and Majority
Revolving Facility Lenders; provided, HOWEVER, that no such amendment shall
permit the Additional Extensions of Credit to share ratably with or with
preference to the Term Loans in the application of mandatory prepayments without
the consent of the Required Prepayment Lenders or otherwise to share ratably
with or with preference to the Revolving Extensions of Credit without the
consent of the Majority Revolving Facility Lenders.
10.2 NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed (a) in the case of the Borrower, the Arranger and the
Agents, as follows and (b) in the case of the Lenders, as set forth on Schedule
1 to the Lender Addendum to which such Lender is a party or, in the case of a
Lender which becomes a party to this Agreement pursuant to an Assignment and
Acceptance, in such Assignment and Acceptance or (c) in the case of any party,
to such other address as such party may hereafter notify to the other parties
hereto:
The Borrower: Spanish Broadcasting System, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, XX XX
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
-78-
with a copy to: Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Xxxxxx Commercial Paper Inc.: Xxxxxx Commercial Paper Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy to: Xxxxxxxx Chance US LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Arranger: Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
With a copy to: Xxxxxxxx Chance US LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Issuing Lender: As notified by the Issuing Lender
to the Administrative Agent and
the Borrower provided that any
notice, request or demand to or
upon any Agent or any Lender shall
not be effective until received.
10.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of the Arranger, any Agent or any
Lender, any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
-79-
10.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder.
10.5 PAYMENT OF EXPENSES. The Borrower agrees (a) to pay or
reimburse the Arranger and the Administrative Agent on demand for all reasonable
out-of-pocket expenses, including the reasonable fees, disbursements and other
charges of counsel, incurred in connection with the Facilities and the
development, preparation and execution of, and any amendment, supplement or
modification to, this Agreement and the other Loan Documents and any other
documents prepared in connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and thereby PROVIDED,
HOWEVER, that notwithstanding the foregoing, the obligations of Borrower under
this clause (a) in respect of such out-of-pocket expenses incurred by the
Arranger and Administrative Agent through the Closing Date shall be limited as
provided in the Commitment Letter, (b) to pay or reimburse each Lender, the
Arranger and each Agent for all its costs and expenses incurred in connection
with the enforcement or preservation of any rights under this Agreement, the
other Loan Documents and any such other documents, including the fees and
disbursements of counsel (including the allocated fees and disbursements and
other charges of in-house counsel) to each Lender and of counsel to the Arranger
and each Agent, (c) to pay, indemnify, and hold each Lender, the Arranger and
the Agents harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other similar taxes, if any, that may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and (d)
to pay, indemnify, and hold each Lender, the Arranger and each Agent, and each
of their respective Related Persons (each of the Lenders, Arranger and Agents
and their Related Persons, an "INDEMNITEE") harmless from and against any and
all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other
documents, including any of the foregoing relating to the use of proceeds of the
Loans or Letters of Credit or the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of any Loan Party or
any of the Properties and the fees and disbursements and other charges of legal
counsel in connection with claims, actions or proceedings by any Indemnitee
against the Borrower hereunder (all the foregoing in this clause (d),
collectively, the "INDEMNIFIED LIABILITIES"), PROVIDED that the Borrower shall
have no obligation hereunder to any Indemnitee with respect to Indemnified
Liabilities to the extent such Indemnified Liabilities are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of such Indemnitee. Without
limiting the foregoing, and to the extent permitted by applicable law, the
Borrower agrees not to assert and to cause its Subsidiaries not to assert, and
hereby waives and agrees to cause its Subsidiaries so to waive, all rights for
contribution or any other rights of recovery with respect to all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and expenses
of whatever kind or nature, under or related to Environmental Laws, that any of
them might have by statute or otherwise against any Indemnitee. All amounts due
under this Section shall be payable not later than five days after written
demand therefor. Statements payable by the Borrower pursuant to this Section
shall be submitted to the Borrower in accordance with Section 10.2, or to such
other Person or address as may be hereafter designated by the Borrower in a
written notice to the Administrative Agent. The agreements in this Section shall
survive repayment of the Loans and Letters of Credit and all other amounts
payable hereunder.
10.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.
-80-
(a) This Agreement shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Arranger, the Agents, all other
holders of the Obligations and their respective successors and assigns, except
that the Borrower may not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of the Arranger, the
Agents and each Lender.
(b) Any Lender may, without the consent of the Borrower or any
other Person, in accordance with applicable law, at any time sell to one or more
Eligible Assignees (each, a "PARTICIPANT") participating interests in any Loan
owing to such Lender, any Commitment of such Lender or any other interest of
such Lender hereunder and under the other Loan Documents. In the event of any
such sale by a Lender of a participating interest to a Participant, such
Lender's obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Loan Documents, and the Borrower
and the Administrative Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. In no event shall any Participant under
any such participation have any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any departure by any Loan
Party therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Loans or any fees payable
hereunder, or postpone the date of the final maturity of the Loans, in each case
to the extent subject to such participation. The Borrower agrees that if amounts
outstanding under this Agreement and the Loans are due or unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall, to the maximum extent permitted by
applicable law, be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement, provided that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in Section 10.7(a) as fully as if it
were a Lender hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of Sections 2.19, 2.20 and 2.21 with respect to its
participation in the Commitments and the Loans outstanding from time to time as
if it was a Lender; PROVIDED that, in the case of Section 2.20, such Participant
shall have complied with the requirements of said Section; and PROVIDED,
FURTHER, that no Participant shall be entitled to receive any greater amount
pursuant to any such Section than the transferor Lender would have been entitled
to receive in respect of the amount of the participation transferred by such
transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "ASSIGNOR") may, in accordance with
applicable law, upon written notice to the Administrative Agent, at any time and
from time to time assign to any Lender or any Affiliate or Control Investment
Affiliate thereof or, with the consent of the Borrower and the Administrative
Agent and, in the case of any assignment of Revolving Credit Commitments, the
written consent of the Issuing Lender and the Swing Line Lender (which, in each
case, shall not be unreasonably withheld or delayed) (PROVIDED that (x) no such
consent need be obtained if (i) the assignment is to an Eligible Assignee and
the Assignor is the Administrative Agent or any Affiliate thereof, (ii) the
Assignee is another Lender or an Affiliate of a Lender, (iii) the assignment is
by a Lender to a Related Fund of such Lender, or (iv) Term Loans are being
assigned to an Eligible Assignee, and (y) in any event the consent of the
Borrower need not be obtained with respect to any assignment to an Eligible
Assignee at any time when a Default is continuing), to an additional Eligible
Assignee (an "ASSIGNEE") all or any part of its rights and obligations under
this Agreement pursuant to an Assignment and Acceptance, substantially in the
form of Exhibit J, executed by such Assignee and such Assignor (and, where the
consent of the Borrower, the Administrative Agent or the Issuing Lender or the
Swing Line Lender is required pursuant to the foregoing provisions, by the
Borrower and such other Persons) and delivered to the Administrative Agent for
its acceptance and recording in the Register; PROVIDED that no such assignment
to an Assignee (other than any Lender or any affiliate thereof) shall be in an
aggregate principal amount of less than
-81-
$1,000,000 and, after giving effect thereto, the Assignor shall retain an
Aggregate Exposure of no less than $1,000,000 (other than in the case of an
assignment of all of a Lender's interests under such Agreement), unless
otherwise agreed by the Borrower and the Administrative Agent. Any such
assignment need not be ratable as among the Facilities. Upon such execution,
delivery, acceptance and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder with a Commitment and/or
Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of an Assignor's rights and obligations under this Agreement, such Assignor
shall cease to be party hereto as a Lender).
(d) The Administrative Agent shall, on behalf of the Borrower,
maintain at its address referred to in Section 10.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "REGISTER") for the
recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Loans owing to, each Lender from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Administrative Agent and the Lenders shall treat each
Person whose name is recorded in the Register as the owner of the Loans and any
Notes evidencing such Loans recorded therein for all purposes of this Agreement.
Any assignment of any Loan, whether or not evidenced by a Note, shall be
effective only upon appropriate entries with respect thereto being made in the
Register (and each Note shall expressly so provide). Any assignment or transfer
of all or part of a Loan evidenced by a Note shall be registered on the Register
only upon surrender for registration of assignment or transfer of the Note
evidencing such Loan, accompanied by a duly executed Assignment and Acceptance;
thereupon one or more new Notes in the same aggregate principal amount shall be
issued to the designated Assignee, and the old Notes shall be returned by the
Administrative Agent to the Borrower marked "canceled". The Register shall be
available for inspection by the Borrower or any Lender (with respect to any
entry relating to such Lender's Commitment and Loans) at any reasonable time and
from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an Assignor and an Assignee (and, in any case where the consent of any other
Person is required by Section 10.6(c), by each such other Person) together with
payment to the Administrative Agent of a registration and processing fee of
$3,500 (except that no such registration and processing fee shall be payable (x)
in connection with an assignment by a Lender to a Related Fund of such Lender,
(y) in connection with an assignment by or to a Xxxxxx Entity or (z) in the case
of an Assignee that is already a Lender or is an Affiliate of a Lender or a
Person under common management with a Lender), the Administrative Agent shall
promptly accept such Assignment and Acceptance and record the information
contained therein in the Register and give notice of such acceptance and
recordation to the Borrower. On or prior to such effective date, the Borrower,
at its own expense, upon request, shall execute and deliver to the
Administrative Agent (in exchange for any Revolving Credit Note and/or Term
Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note
and/or Term Notes, as the case may be, to such Assignee or its registered
assigns in an amount equal to the Revolving Credit Commitment and/or Term Loans,
as the case may be, assumed or acquired by it pursuant to such Assignment and
Acceptance and, if the Assignor has retained a Revolving Credit Commitment
and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note
and/or Term Notes, as the case may be, to the Assignor or its registered assigns
in an amount equal to the Revolving Credit Commitment and/or applicable Term
Loans, as the case may be, retained by it hereunder. Such new Note or Notes
shall be dated the Closing Date and shall otherwise be in the form of the Note
or Notes replaced thereby.
(f) For the avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section concerning assignments of Loans
and Notes relate only to absolute assignments
-82-
and that such provisions do not prohibit assignments creating security
interests, including any pledge or assignment by a Lender of any Loan or Note to
any Federal Reserve Bank in accordance with applicable law.
10.7 ADJUSTMENTS; SET-OFF.
(a) Except to the extent that this Agreement provides for
payments to be allocated to a particular Lender or to the Lenders under a
particular Facility, if any Lender (a "BENEFITED LENDER") shall at any time
receive any payment of all or part of the Obligations owing to it, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in Section
8(f), or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Obligations, such Benefited Lender shall purchase for cash from the
other Lenders a participating interest in such portion of each such other
Lender's Obligations, or shall provide such other Lenders with the benefits of
any such collateral, as shall be necessary to cause such Benefited Lender to
share the excess payment or benefits of such collateral ratably with each of the
Lenders; PROVIDED, HOWEVER, that if all or any portion of such excess payment or
benefits is thereafter recovered from such Benefited Lender, such purchase shall
be rescinded, and the purchase price and benefits returned, to the extent of
such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower (any such notice being expressly waived by the Borrower to the extent
permitted by applicable law), upon any amount becoming due and payable by the
Borrower hereunder (whether at stated maturity, by acceleration or otherwise),
to set off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower. Each Lender agrees to notify promptly the
Borrower and the Administrative Agent after any such setoff and application made
by such Lender, PROVIDED that the failure to give such notice shall not affect
the validity of such setoff and application.
10.8 COUNTERPARTS. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. Delivery of an executed signature page of this
Agreement by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof. A set of the copies of this Agreement signed by all
the parties shall be lodged with the Borrower and the Administrative Agent.
10.9 SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 INTEGRATION. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Agents, the Arranger and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Arranger, any Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
-83-
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 SUBMISSION TO JURISDICTION; WAIVERS. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the State of
New York situated in the County of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from any
thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in Section 10.2 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding referred
to in this Section any special, exemplary, punitive or consequential damages.
10.13 ACKNOWLEDGMENTS. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Arranger, nor any Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between the Arranger, the Agents and the Lenders, on one hand, and
the Borrower, on the other hand, in connection herewith or therewith is solely
that of participants in a debtor and creditor transaction; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Arranger, the Agents and the Lenders or between the Borrower and any
of them.
10.14 CONFIDENTIALITY. Each of the Arranger, the Agents and
the Lenders agrees to keep confidential all non-public information provided to
it by any Loan Party pursuant to this Agreement; PROVIDED that nothing herein
shall prevent the Arranger, any Agent or any Lender from disclosing any such
information (a) to the Arranger, any Agent, any other Lender or any affiliate of
any thereof, (b) to any Participant or Assignee (each, a "TRANSFEREE") or
prospective Transferee that agrees to comply with
-84-
the provisions of this Section or substantially equivalent provisions, (c) to
any of its employees, directors, agents, attorneys, accountants and other
professional advisors involved in the evaluation or administration of the credit
facilities contemplated hereby to the extent that such advisor shall agree to
comply with the provisions of this section, (d) upon the request or demand of
any Governmental Authority having jurisdiction over it, (e) in response to any
order of any court or other Governmental Authority or as may otherwise be
required pursuant to any Requirement of Law, (f) if required to do so in
connection with any litigation or similar proceeding, (g) that has been publicly
disclosed other than in breach of this Section, (h) to the National Association
of Insurance Commissioners or any similar organization or any nationally
recognized rating agency that requires access to information about a Lender's
investment portfolio in connection with ratings issued with respect to such
Lender, (i) to the extent necessary in connection with the exercise of any
remedy hereunder or under any other Loan Document or (j) if such information
constitutes the "tax treatment" and "tax structure" (in each case, within the
meaning of United States Treasury Regulation Section 1.6011-4) of any
transaction contemplated by this Agreement or any other Loan Agreement and any
materials of any kind (including opinions or other tax analyses) that are
provided to the Arranger, any Agent or any Lender relating to such tax treatment
and tax structure.
10.15 RELEASE OF COLLATERAL AND GUARANTEE OBLIGATIONS.
(a) Notwithstanding anything to the contrary contained herein
or in any other Loan Document, upon request of the Borrower in connection with
any Disposition of Property permitted by the Loan Documents, the Administrative
Agent shall (without notice to or vote or consent of any Lender, or any
affiliate of any Lender that is a party to any Specified Hedge Agreement) take
such actions as shall be required to release its security interest in any
Collateral being Disposed of in such Disposition, and to release any Guarantee
Obligations of any Person being Disposed of in such Disposition, to the extent
necessary to permit consummation of such Disposition in accordance with the Loan
Documents; PROVIDED that the Borrower shall have delivered to the Administrative
Agent, at least five Business Days prior to the date of the proposed release, a
written request for release identifying the relevant Collateral being Disposed
of in such Disposition and the terms of such Disposition in reasonable detail,
including the date thereof, the price thereof and any estimated expenses in
connection therewith, together with a certification by a Responsible Officer of
the Borrower stating that such transaction is in compliance with this Agreement
and the other Loan Documents and that the proceeds of such Disposition will be
applied in accordance with this Agreement and the other Loan Documents.
(b) The Administrative Agent shall be, and hereby is,
irrevocably authorized and empowered to release any and all of the Collateral
and take any and all actions necessary therefor or reasonably incidental
thereto, upon request of the Borrower and without notice to or consent of any
Lender or any other holder of Obligations, when all Commitments have terminated,
all Letters of Credit have been discharged, the principal of and interest on all
Loans and Reimbursement Obligations have been paid in full and the
Administrative Agent has received payment in full, or payment security
satisfactory to it, as to all other Obligations that are claimed by the
Administrative Agent or in respect of which the Administrative Agent has
received, reasonably in advance of such release, written notice that any payment
is due or any claim is pending.
10.16 ACCOUNTING CHANGES. In the event that any "Accounting
Change" (as defined below) shall occur and such change results in a change in
the method of calculation of financial covenants, standards or terms in this
Agreement, then the Borrower and the Administrative Agent agree to enter into
negotiations in order to amend such provisions of this Agreement so as to
equitably reflect such Accounting Changes with the desired result that the
criteria for evaluating the Borrower's financial condition shall be the same
after such Accounting Changes as if such Accounting Changes had not been made.
Until such time as such an amendment shall have been executed and delivered by
the Borrower, the Administrative Agent and the Required Lenders, all financial
covenants, standards and terms in this
-85-
Agreement shall continue to be calculated or construed as if such Accounting
Changes had not occurred. "ACCOUNTING CHANGES" refers to changes in accounting
principles required or permitted by the promulgation of any rule, regulation,
pronouncement or opinion by the Financial Accounting Standards Board of the
American Institute of Certified Public Accountants or, if applicable, the SEC.
10.17 DELIVERY OF LENDER ADDENDA. Each initial Lender shall
become a party to this Agreement by delivering to the Administrative Agent a
Lender Addendum duly executed by such Lender, the Borrower and the
Administrative Agent.
10.18 CONSTRUCTION. Each covenant contained herein shall be
construed (absent express provision to the contrary) as being independent of
each other covenant contained herein, so that compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to excuse
compliance with any other covenant. Where any provision herein refers to action
to be taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person.
10.19 WAIVERS OF JURY TRIAL. EACH PARTY HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
10.20 DESIGNATED SENIOR DEBT. The Obligations (including the
Guarantee Obligations of each Subsidiary Guarantor under the Guarantee and
Collateral Agreement) are hereby designated as "Designated Senior Debt" for the
purposes of and as defined in the Senior Subordinated Note Indenture and any
indenture governing Exchange Subordinated Debt or Indebtedness incurred in any
Permitted Refinancing under clause (1) of the definition of such term.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY; SIGNATURES FOLLOW.]
-86-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
SPANISH BROADCASTING SYSTEM, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice-President, Chief
Financial Officer and Secretary
XXXXXX COMMERCIAL PAPER INC.,
as Administrative Agent
By: /s/ G. Xxxxxx Xxxxxxx
-----------------------------------------
Name: G. Xxxxxx Xxxxxxx
Title: Vice President
SPANISH BROADCASTING SYSTEM, INC.
CREDIT AGREEMENT
SIGNATURE PAGE
Annex A
PRICING GRID FOR REVOLVING CREDIT LOANS AND
SWING LINE LOANS
Consolidated Senior Secured Applicable Margin for Applicable Margin for Base
Debt Ratio Eurodollar Loans Rate Loans
--------------------------- --------------------- --------------------------
equal to or more than 3.00% 2.00%
2.0:1.0
less than 2.0:1.0 and equal 2.75% 1.75%
to or more than 1.5:10
less than 1.5:1.0 2.50% 1.50%
The Applicable Margin shall be determined on a quarterly basis based on the
Consolidated Senior Leverage Ratio as of the last day of the most recent fiscal
quarter and for the period of four consecutive fiscal quarters then ended,
except that the Applicable Margin will be the highest rate set forth above
(3.00% for Eurodollar Rate Loans and 2.00% for Base Rate Loans) (a) for the
period from the Closing Date until the Grid Effective Date and (b) whenever any
Event of Default is continuing. Changes in the Applicable Margin resulting from
changes in the Consolidated Senior Secured Debt Ratio shall become effective on
the date on which the Compliance and Pricing Certificate for each fiscal quarter
is delivered to the Lenders pursuant to Section 6.1 (but in any event not later
than the 45th day after the end of each of the first three quarterly periods of
each fiscal year or the 90th day after the end of each fiscal year, as the case
may be) and shall remain in effect until the next change to be effected pursuant
to this paragraph. If any Compliance and Pricing Certificate referred to above
is not delivered within the time periods specified above, then, until such
financial statements are delivered, the Consolidated Senior Secured Debt Ratio
as at the end of the fiscal period that would have been covered thereby shall
for the purposes of this definition be deemed to be greater than 2.0 to 1.0.
Annex-1
EXHIBIT A
FORM OF COMPLIANCE AND PRICING CERTIFICATE
This Compliance and Pricing Certificate is delivered to you pursuant to
Section 6.2(b) of the Credit Agreement, dated as of October 30, 2003, as
amended, supplemented or modified from time to time (the "CREDIT AGREEMENT"),
among SPANISH BROADCASTING SYSTEM, INC., a Delaware corporation (the
"BORROWER"), the several banks and other financial institutions or entities from
time to time party thereto (the "LENDERS"), XXXXXXX XXXXX, XXXXXX XXXXXX &
XXXXX, INCORPORATED and DEUTSCHE BANK SECURITIES INC., as co-documentation
agents (in such capacity, the "CO-DOCUMENTATION AGENTS"), XXXXXX COMMERCIAL
PAPER INC., as syndication agent (in such capacity, the "SYNDICATION AGENT") and
XXXXXX COMMERCIAL PAPER INC., as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT"). Terms defined in the Credit Agreement and not otherwise
defined herein are used herein with the meanings so defined.
1. I am the duly elected, qualified and acting Chief Financial Officer
of the Borrower.
2. I have reviewed and am familiar with the contents of this
Certificate.
3. I have reviewed the terms of the Credit Agreement and the Loan
Documents and have made or caused to be made under my supervision, a review in
reasonable detail of the transactions and condition of the Borrower during the
accounting period covered by the financial statements attached hereto as
ATTACHMENT 1 (the "FINANCIAL STATEMENTS"). Such review did not disclose the
existence during or at the end of the accounting period covered by the Financial
Statements, and I have no knowledge of the existence, as of the date of this
Certificate, of any condition or event which constitutes a Default or an Event
of Default [, except as set forth below].
[DESCRIBE ANY DEFAULT OR EVENT OF DEFAULT, IF APPLICABLE.]
4. Attached hereto as ATTACHMENT 2 are the computations showing
compliance with the covenants set forth in Sections 7.1, 7.7 and 7.8 of the
Credit Agreement.
5. Based on the computation of Consolidated Senior Secured Debt Ratio
set forth in ATTACHMENT 2, the Applicable Margins for Revolving Loans and Swing
Line Loans are __% in the case of Eurodollar Loans and ___% in the case of Base
Rate Loans.
IN WITNESS WHEREOF, I execute this Certificate this _____ day of
______________, ______.
SPANISH BROADCASTING SYSTEM, INC.
By:
-------------------------------------
Name:
Title:
A-1
Attachment 1 to
Exhibit A
Financial Statements
A-2
Attachment 2 to
Exhibit A
The information described herein is as of ________________, 200_, and
pertains to the period from ______________, 200_ to ______________, 200_
[Set forth covenant calculations.]
A-3
EXHIBIT B
B-1
EXHIBIT C
FORM OF LENDER ADDENDUM
Reference is made to the Credit Agreement, dated as of October 30, 2003
(as amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among SPANISH BROADCASTING SYSTEM, INC., a Delaware corporation
(the "BORROWER"), the several banks and other financial institutions or entities
from time to time party thereto (the "LENDERS"), XXXXXXX XXXXX, XXXXXX XXXXXX &
XXXXX, INCORPORATED and DEUTSCHE BANK SECURITIES INC., as co-documentation
agents (in such capacity, the "CO-DOCUMENTATION AGENTS"), XXXXXX COMMERCIAL
PAPER INC., as syndication agent (in such capacity, the "SYNDICATION AGENT") and
XXXXXX COMMERCIAL PAPER INC., as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT"). Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
Upon execution and delivery of this Lender Addendum by the parties
hereto as provided in Section 10.17 of the Credit Agreement, the undersigned
hereby becomes a Lender thereunder having the Commitment set forth in Schedule 1
hereto, effective as of the Closing Date.
THIS LENDER ADDENDUM SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
This Lender Addendum may be executed by one or more of the parties
hereto on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
Delivery of an executed signature page hereof by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Lender Addendum
to be duly executed and delivered by their proper and duly authorized officers
as of this ___ day of ______________, 2003.
[NAME OF LENDER]
By:
------------------------------------
Name:
Title:
Accepted and agreed:
SPANISH BROADCASTING SYSTEM, INC.
By:
----------------------------------
Name:
Title:
C-1
XXXXXX COMMERCIAL PAPER INC.,
as Administrative Agent
By:
----------------------------------
Name:
Title:
C-2
Schedule 1
Commitment
% of total amount of
such Commitment from
Amount All Lenders
------ --------------------
Term Loan Commitment
Revolving Credit Commitment
C-3
EXHIBIT D
FORM OF NOTICE OF BORROWING
___________, 2003
Xxxxxx Commercial Paper Inc.,
as Administrative Agent
3 World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Attention: _____________
SPANISH BROADCASTING SYSTEM, INC.
Ladies and Gentlemen:
Pursuant to Section 2.5 of that certain Credit Agreement,
dated as of October 30, 2003 (as amended, supplemented, replaced or otherwise
modified from time to time, the "CREDIT AGREEMENT"; capitalized terms used but
not defined herein having the meanings given such terms in the Credit
Agreement), among Spanish Broadcasting System, Inc., a Delaware corporation (the
"BORROWER"), each lender from time to time party thereto, the co-documentation
agents named therein, the syndication agent named therein and Xxxxxx Commercial
Paper Inc., as administrative agent (the "ADMINISTRATIVE AGENT"), the Borrower
hereby gives the Administrative Agent irrevocable notice that the Borrower
hereby requests a Loan under the Credit Agreement, and in that connection sets
forth below the information relating to such Loan:
(i) The Business Day of the proposed Loan is __________,
200__.
(ii) The Type of the proposed Loan is a Base Rate
Loan/Eurodollar Loan.
(iii) The aggregate amount of the proposed Loan is
$__,000,000.
[(iv) The Interest Period shall be one /two/three/six months.]
The Borrower hereby certifies that the following statements
are true and correct on the date hereof, and will be true and correct on the
date of the proposed Loan:
(b) Each of the representations and warranties made by any
Loan Party in or pursuant to the Loan Documents is true and correct in all
material respects on and as of the date hereof as if made on and as of the date
hereof (except to the extent that they relate expressly to an earlier date).
(c) No Default or Event of Default has occurred and is
continuing on the date hereof, or would result from the proposed Loan or the
application of the proceeds thereof.
(d) The proceeds of the $__,000,000 borrowing will be used
solely in accordance with Section 4.16 of the Credit Agreement.
(e) The Administrative Agent is authorized and directed to
disburse the proceeds of the $__,000,000 borrowing as set forth in Section 2.5
of the Credit Agreement.
D-1
The Borrower agrees that, if prior to the time of the proposed
Loan any of the foregoing certifications shall cease to be true and correct, the
Borrower shall forthwith notify the Administrative Agent thereof in writing (any
such notice, a "NON-COMPLIANCE NOTICE"). Except to the extent, if any, that
prior to the time of the proposed Loan, the Borrower shall deliver a
Non-Compliance Notice to the Administrative Agent, each of the foregoing
certifications shall be deemed to be made additionally on the date of the
proposed Loan as if made on such date.
Very truly yours,
SPANISH BROADCASTING SYSTEM, INC.
By:
-------------------------------------
Name:
Title:
D-2
EXHIBIT E
FORM OF SOLVENCY CERTIFICATE
This Solvency Certificate (this "CERTIFICATE") is delivered in
connection with that certain Credit Agreement, dated as of October 30, 2003 (as
amended, supplemented, replaced or otherwise modified from time to time, the
"CREDIT AGREEMENT"), among SPANISH BROADCASTING SYSTEM, INC., a Delaware
corporation (the "BORROWER"), the several banks and other financial institutions
or entities from time to time party thereto (the "LENDERS"), XXXXXXX XXXXX,
XXXXXX XXXXXX & XXXXX, INCORPORATED and DEUTSCHE BANK SECURITIES INC., as
co-documentation agents (in such capacity, the "CO-DOCUMENTATION AGENTS"),
XXXXXX COMMERCIAL PAPER INC., as syndication agent (in such capacity, the
"SYNDICATION AGENT") and XXXXXX COMMERCIAL PAPER INC., as administrative agent
(in such capacity, the "ADMINISTRATIVE AGENT"). Capitalized terms used but not
defined herein have the meanings given such terms in the Credit Agreement.
For purposes of this Certificate, "TRANSACTIONS" means (i) the
fulfillment of all conditions to the making of Loans and the issuance of Letters
of Credit under the Credit Agreement and the funding of such Loans and Letters
of Credit, if any, on the Closing Date, (ii) the execution and delivery of the
Loan Documents, (iii) the repayment, if any, of outstanding Indebtedness on the
Closing Date, (iv) the Preferred Stock issuance, (v) the KXOL Acquisition, and
(vi) the payment of all fees, costs and expenses associated with the foregoing.
I hereby certify as of the date hereof on behalf of the Loan
Parties as follows:
1. I am the duly qualified and acting Vice President and/or
Chief Financial Officer of each Loan Party and in such capacity am a senior
financial officer with responsibility for the management of the financial
affairs of such Loan Party and the preparation of financial statements of such
Loan Party. I, together with other officers of the Loan Parties, acted on behalf
of each Loan Party in connection with the negotiation and execution of the
Credit Agreement and the other Loan Documents to which any Loan Party is a
party. In connection with the following certifications, I have reviewed the
financial statements of the Loan Parties.
2. I have carefully reviewed the contents of this Certificate,
and I have conferred with counsel for the Loan Parties for the purpose of
discussing the meaning of its contents and the purpose for which it is to be
used. I have made such investigations and inquiries as I have deemed to be
necessary and prudent and have reviewed the Credit Agreement and the other Loan
Documents to which any Loan Party is a party. I am providing this certificate
solely in my capacity as an officer of each Loan Party.
3. For purposes of delivering this Certificate, I have:
(a) made inquiries within the Borrower concerning, among other
matters, pending and threatened litigation, uninsured risks, guaranties of
obligations of other Persons and other contingent obligations and have included
as a liability in my conclusions my best judgment as to the maximum realistic
exposure of each Loan Party to liabilities that would not be included in
reserves otherwise reflected on the consolidated balance sheet of the Borrower
and its Subsidiaries as of June 30, 2003;
(b) reviewed the financial statements of each Loan Party; and
(c) made such other investigations and inquiries as I have
deemed appropriate and have taken into account the nature of the particular
business anticipated to be conducted by the Loan Parties after consummation of
the Transactions.
E-1
Based upon the foregoing, I have reached the following
conclusions:
(i) No Loan Party is now, and the consummation of the
Transactions will not render any Loan Party, "insolvent" as defined below. I
understand that in this context, "insolvent" means that the present fair salable
value of assets of each Loan Party is less than the amount that will be required
to pay its probable liability on its existing debts as they become absolute and
matured. I have assumed that in this context "fair salable value" means the
price available upon the sale of such assets by a willing seller to a willing
buyer, where material information as to the asset and the market for such asset
is known to both, and where the sale is executed with commercially reasonable
promptness. I also understand that (i) the term "debts" includes any liability
on a "claim", and (ii) "claim" means any (x) right to payment, whether or not
such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured
or unsecured or (y) right to an equitable remedy for breach of performance if
such breach gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured or
unmatured, disputed, undisputed, secured or unsecured.
(ii) No Loan Party will incur, and no Loan Party intended to
incur or believed that it would incur, debts beyond its ability to pay as they
mature as a result of the consummation of the Transactions. I have concluded
that the cash flow and cash resources (including earnings plus non-cash charges
to earnings and, to the extent permitted under the Credit Agreement, the
disposition of assets held for sale) of such Loan Party will be sufficient to
provide cash necessary to repay indebtedness and liabilities of such Loan Party
(including, in the case of the Borrower, the indebtedness and liabilities of the
Borrower under the Credit Agreement, any Notes and any outstanding Letters of
Credit) as such debts and liabilities mature.
(iii) The consummation of the Transactions will not leave any
Loan Party with property remaining in its hands constituting "unreasonably small
capital." I have assumed for purposes of reaching this conclusion that
"unreasonably small capital" depends upon the nature of the particular business
or businesses conducted or to be conducted, and I have reached my conclusion
based on the needs and anticipated needs for capital of the businesses conducted
or anticipated to be conducted by each Loan Party in light of the Projections
and available credit capacity.
(iv) No Loan Party has executed the Credit Agreement, any
Notes, any Letters of Credit or any other Loan Documents, in each case, to which
such Loan Party is a party or made any transfer or incurred any obligations in
connection with the Transactions, with actual intent to hinder, delay or defraud
either present or future creditors.
I understand that the Secured Parties are relying on the truth
and accuracy of the foregoing in connection with each extension of credit to the
Borrower pursuant to the Credit Agreement and the other Loan Documents.
I represent the foregoing information to be, to the best of my
knowledge and belief, after diligent inquiry, true and correct and execute this
Solvency Certificate as the Vice President and/or Chief Financial Officer of
each Loan Party as of the ___ day of __________, 2003.
[SIGNATURE PAGE FOLLOWS]
E-2
IN WITNESS WHEREOF, the undersigned has duly executed this
Solvency Certificate as of the date first written above.
SPANISH BROADCASTING SYSTEM, INC., a Delaware corporation
SPANISH BROADCASTING SYSTEM FINANCE CORPORATION, a Delaware corporation
SPANISH BROADCASTING SYSTEM OF GREATER MIAMI, INC.
SPANISH BROADCASTING SYSTEM OF ILLINOIS, INC.
SPANISH BROADCASTING SYSTEM, INC., a New Jersey corporation
SPANISH BROADCASTING SYSTEM OF SAN ANTONIO, INC.
XXXXXXX HOLDINGS, INC.
SPANISH BROADCASTING SYSTEM OF CALIFORNIA, INC.
SPANISH BROADCASTING SYSTEM OF PUERTO RICO, INC., a Delaware corporation
SPANISH BROADCASTING SYSTEM OF FLORIDA, INC.
SBS OF GREATER NEW YORK, INC.
SBS FUNDING, INC.
SPANISH BROADCASTING SYSTEM OF PUERTO RICO, INC., a Puerto Rico corporation
SPANISH BROADCASTING SYSTEM NETWORK, INC.
SBS PROMOTIONS, INC.
SPANISH BROADCASTING SYSTEM SOUTHWEST, INC.
SPANISH BROADCASTING SYSTEM-SAN FRANCISCO, INC.
WRMA LICENSING, INC.
WXDJ LICENSING, INC.
WDEK LICENSING, INC.
WKIE LICENSING, INC.
WKIF LICENSING, INC.
WLEY LICENSING, INC.
WSKQ LICENSING, INC.
KLEY LICENSING, INC.
KSAH LICENSING, INC.
KZAB LICENSING, INC.
KZBA LICENSING, INC.
KPTI LICENSING, INC.
WCMQ LICENSING, INC.
KLAX LICENSING, INC.
WPAT LICENSING, INC.
WCMA LICENSING, INC.
WZET LICENSING, INC.
WMEG LICENSING, INC.
KXOL LICENSING, INC.
By:
------------------------------------------------------
Name:
Title: Vice President and/or Chief Financial Officer
of each Loan Party
E-3
EXHIBIT F-1
FORM OF TERM NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT
IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO
BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MUST BE
RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE
TERMS OF SUCH CREDIT AGREEMENT.
$___________ New York, New York
--------- ---, ---
FOR VALUE RECEIVED, the undersigned, SPANISH BROADCASTING
SYSTEM, INC., a Delaware corporation (the "BORROWER"), hereby unconditionally
promises to pay to _____________ (the "LENDER") or its registered assigns at the
Payment Office specified in the Credit Agreement (as hereinafter defined) in
lawful money of the United States and in immediately available funds, the
principal amount of (a) _______________ DOLLARS ($______), or, if less, (b) the
unpaid principal amount of the Term Loan outstanding to the Lender made pursuant
to Section 2.1 of the Credit Agreement. The principal amount shall be paid in
the amounts and on the dates specified in Section 2.3 of the Credit Agreement.
The Borrower further agrees to pay interest in like money at such office on the
unpaid principal amount hereof from time to time outstanding at the rates and on
the dates specified in Section 2.15 of the Credit Agreement.
The holder of this Note is authorized to endorse on the
schedules annexed hereto and made a part hereof, or on a continuation thereof
that shall be attached hereto and made a part hereof, the date, Type and amount
of the Term Loan and the date and amount of each payment or prepayment of
principal with respect thereto, each conversion of all or a portion thereof to
another Type, each continuation of all or a portion thereof as the same Type
and, in the case of Eurodollar Loans, the length of each Interest Period with
respect thereto. Each such endorsement shall constitute prima facie evidence of
the accuracy of the information endorsed. The failure to make any such
endorsement or any error in any such endorsement shall not affect the
obligations of the Borrower in respect of the Term Loan.
This Note (a) is one of the Term Notes referred to in the
Credit Agreement dated as of October 30, 2003 (as amended, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"), among the
Borrower, the Lender, the several other banks and financial institutions or
entities from time to time party thereto, as lenders, Xxxxxxx Xxxxx, Xxxxxx
Xxxxxx & Xxxxx, Incorporated and Deutsche Bank Securities Inc., as
Co-Documentation Agents, Xxxxxx Commercial Paper Inc., as Syndication Agent, and
Xxxxxx Commercial Paper Inc., as Administrative Agent, (b) is subject to the
provisions of the Credit Agreement and (c) is subject to optional and mandatory
prepayment in whole or in part as provided in the Credit Agreement. This Note is
secured and guaranteed as provided in the Loan Documents. Reference is hereby
made to the Loan Documents for a description of the properties and assets in
which a security interest has been granted, the nature and extent of the
security and the guarantees, the terms and conditions upon which the security
interests and each guarantee were granted and the rights of the holder of this
Note in respect thereof.
Upon the occurrence of any one or more of the Events of
Default, all principal and all accrued interest then remaining unpaid on this
Note shall become, or may be declared to be, immediately due and payable, all as
provided in the Credit Agreement.
F1-1
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR
IN THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND
IN ACCORDANCE WITH THE REGISTRATION AND OTHER PROVISIONS OF SECTION 10.6 OF THE
CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SPANISH BROADCASTING SYSTEM, INC.
By:
-------------------------------------
Name:
Title:
F1-2
SCHEDULE A
to Term Note
LOANS AND REPAYMENTS OF LOANS
IF
EURODOLLAR
AMOUNT OF UNPAID AMOUNT OF AMOUNT OF LOAN,
PRINCIPAL OF PRINCIPAL CONVERSION OF CONTINUATION OF LENGHT OF
AMOUNT OF TERM LOANS BALANCE OF TERM LOAN TO TERM LOAN AS INTEREST NOTATION
DATE TYPE TERM LOAN REPAID TERM LOANS ANOTHER TYPE SAME TYPE PERIOD MADE BY
---- ---- --------- ------------ ---------- ------------- ---------------- ----------- --------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
F1-3
EXHIBIT F-2
FORM OF REVOLVING CREDIT NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT
IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO
BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MUST BE
RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE
TERMS OF SUCH CREDIT AGREEMENT.
$_____________ New York, New York
---------- ----, ----
FOR VALUE RECEIVED, the undersigned, SPANISH BROADCASTING
SYSTEM, INC., a Delaware corporation (the "BORROWER"), hereby unconditionally
promises to pay to __________________ (the "LENDER") or its registered assigns
at the Payment Office specified in the Credit Agreement (as hereinafter defined)
in lawful money of the United States and in immediately available funds, on the
Revolving Credit Termination Date the principal amount of (a) ___________
DOLLARS ($_______), or, if less, (b) the aggregate unpaid principal amount of
all Revolving Credit Loans outstanding to the Lender made pursuant to Section
2.4 of the Credit Agreement. The Borrower further agrees to pay interest in like
money at such Payment Office on the unpaid principal amount hereof from time to
time outstanding at the rates and on the dates specified in Section 2.15 of the
Credit Agreement.
The holder of this Note is authorized to endorse on the
schedules annexed hereto and made a part hereof, or on a continuation thereof
that shall be attached hereto and made a part hereof, the date, Type and amount
of each Revolving Credit Loan made pursuant to the Credit Agreement and the date
and amount of each payment or prepayment of principal thereof, each continuation
thereof, each conversion of all or a portion thereof to another Type and, in the
case of Eurodollar Loans, the length of each Interest Period with respect
thereto. Each such endorsement shall constitute PRIMA FACIE evidence of the
accuracy of the information endorsed. The failure to make any such endorsement
or any error in any such endorsement shall not affect the obligations of the
Borrower in respect of any Revolving Credit Loan.
This Note (a) is one of the Revolving Credit Notes referred to
in the Credit Agreement dated as of October 30, 2003 (as amended, supplemented
or otherwise modified from time to time, the "CREDIT AGREEMENT"), among the
Borrower, the Lender, the several other banks and financial institutions or
entities from time to time party thereto, as lenders, Xxxxxxx Xxxxx, Xxxxxx
Xxxxxx & Xxxxx, Incorporated and Deutsche Bank Securities Inc., as
Co-Documentation Agents, Xxxxxx Commercial Paper Inc., as Syndication Agent, and
Xxxxxx Commercial Paper Inc., as Administrative Agent, (b) is subject to the
provisions of the Credit Agreement and (c) is subject to optional and mandatory
prepayment in whole or in part as provided in the Credit Agreement. This Note is
secured and guaranteed as provided in the Loan Documents. Reference is hereby
made to the Loan Documents for a description of the properties and assets in
which a security interest has been granted, the nature and extent of the
security and the guarantees, the terms and conditions upon which the security
interests and each guarantee were granted and the rights of the holder of this
Note in respect thereof.
Upon the occurrence of any one or more of the Events of
Default, all principal and all accrued interest then remaining unpaid on this
Note shall become, or may be declared to be, immediately due and payable, all as
provided in the Credit Agreement.
F2-1
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR
IN THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND
IN ACCORDANCE WITH THE REGISTRATION AND OTHER PROVISIONS OF SECTION 10.6 OF THE
CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SPANISH BROADCASTING SYSTEM, INC.
By:
-------------------------------------
Name:
Title:
F2-2
SCHEDULE A
TO REVOLVING CREDIT NOTE
LOANS AND REPAYMENTS OF LOANS
AMOUNT OF
AMOUNT OF UNPAID CONVERSION OF AMOUNT OF
PRINCIPAL OF PRINCIPAL REVOLVING CONTINUATION IF EURODOLLAR
AMOUNT OF REVOLVING BALANCE OF CREDIT LOAN OF REVOLVING LOAN, LENGTH
REVOLVING CREDIT LOANS REVOLVING TO ANOTHER CREDIT LOAN OF INTEREST NOTATION
DATE TYPE CREDIT LOAN REPAID CREDIT LOANS TYPE AS SAME TYPE PERIOD MADE BY
---- ---- ----------- ------------ ------------ ------------- -------------- ------------- --------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
F2-3
EXHIBIT F-3
FORM OF SWING LINE NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE
TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT
AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS
REPRESENTED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE
ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.
$______________________ New York, New York
--------------, ------
FOR VALUE RECEIVED, the undersigned, SPANISH BROADCASTING
SYSTEM, INC., a Delaware corporation (the "BORROWER"), hereby unconditionally
promises to pay to XXXXXX COMMERCIAL PAPER INC. (the "SWING LINE LENDER") or its
registered assigns at the Payment Office specified in the Credit Agreement (as
hereinafter defined) in lawful money of the United States and in immediately
available funds, on the Revolving Credit Termination Date the principal amount
of (a) _______________ DOLLARS ($__________________), or, if less, (b) the
aggregate unpaid principal amount of all Swing Line Loans outstanding to the
Swing Line Lender made pursuant to Section 2.6 of the Credit Agreement, as
hereinafter defined. The Borrower further agrees to pay interest in like money
at such office on the unpaid principal amount hereof from time to time
outstanding at the rates and on the dates specified in Section 2.15 of such
Credit Agreement.
The holder of this Note is authorized to endorse on the
schedules annexed hereto and made a part hereof, or on a continuation thereof
that shall be attached hereto and made a part hereof, the date and amount of
each Swing Line Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof. Each such endorsement
shall constitute prima facie evidence of the accuracy of the information
endorsed. The failure to make any such endorsement or any error in any such
endorsement shall not affect the obligations of the Borrower in respect of any
Swing Line Loan.
This Note (a) is the Swing Line Note referred to in the Credit
Agreement dated as of October 30, 2003 (as amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among the Borrower, the
Swing Line Lender, the several other banks and financial institutions or
entities from time to time party thereto, as lenders, Xxxxxxx Xxxxx, Xxxxxx
Xxxxxx & Xxxxx, Incorporated and Deutsche Bank Securities Inc., as
Co-Documentation Agents, Xxxxxx Commercial Paper Inc., as Syndication Agent, and
Xxxxxx Commercial Paper Inc., as Administrative Agent, (b) is subject to the
provisions of the Credit Agreement and (c) is subject to optional and mandatory
prepayment in whole or in part as provided in the Credit Agreement. This Note is
secured and guaranteed as provided in the Loan Documents. Reference is hereby
made to the Loan Documents for a description of the properties and assets in
which a security interest has been granted, the nature and extent of the
security and the guarantees, the terms and conditions upon which the security
interests and each guarantee were granted and the rights of the holder of this
Note in respect thereof.
Upon the occurrence of any one or more of the Events of
Default, all principal and all accrued interest then remaining unpaid on this
Note shall become, or may be declared to be, immediately due and payable, all as
provided in the Credit Agreement.
F3-1
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR
IN THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND
IN ACCORDANCE WITH THE REGISTRATION AND OTHER PROVISIONS OF SECTION 10.6 OF THE
CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SPANISH BROADCASTING SYSTEM, INC.
By:
-------------------------------------
Name:
Title:
F3-2
SCHEDULE A
TO SWING LINE NOTE
LOANS AND REPAYMENTS OF LOANS
AMOUNT OF UNPAID
AMOUNT OF PRINCIPAL OF SWING PRINCIPAL BALANCE OF
DATE SWING LINE LOANS LINE LOANS REPAID SWING LINE LOANS NOTATION MADE BY
---- ---------------- ------------------ -------------------- ----------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
F3-3
EXHIBIT G
FORM OF EXEMPTION CERTIFICATE
Reference is made to the Credit Agreement, dated as of October
30, 2003 (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT") among SPANISH BROADCASTING SYSTEM, INC., a Delaware
corporation (the "BORROWER"), the several banks and other financial institutions
or entities from time to time party thereto (the "LENDERS"), XXXXXXX XXXXX,
XXXXXX XXXXXX & XXXXX, INCORPORATED and DEUTSCHE BANK SECURITIES INC., as
co-documentation agents (in such capacity, the "CO-DOCUMENTATION AGENTS"),
XXXXXX COMMERCIAL PAPER INC., as syndication agent (in such capacity, the
"SYNDICATION AGENT") and XXXXXX COMMERCIAL PAPER INC., as administrative agent
(in such capacity, the "ADMINISTRATIVE AGENT"). Capitalized terms used herein
that are not defined herein shall have the meanings ascribed to them in the
Credit Agreement. _________ (the "NON-U.S. LENDER") is providing this
certificate pursuant to Section 2.20(f) of the Credit Agreement. The Non-U.S.
Lender hereby represents and warrants that:
1. The Non-U.S. Lender is the sole record and beneficial owner
of the Loans or the obligations evidenced by the Note(s) in respect of which it
is providing this Certificate.
2. The Non-U.S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the "CODE"). In
this regard, the Non-U.S. Lender further represents and warrants that:
(a) the Non-U.S. Lender is not subject to regulatory or other
legal requirements as a bank in any jurisdiction; and
(b) the Non-U.S. Lender has not been treated as a bank for
purposes of any tax, securities law or other filing or submission made to any
Governmental Authority, any application made to a rating agency or qualification
for any exemption from tax, securities law or other legal requirements;
3. The Non-U.S. Lender is not a 10-percent shareholder of the
Borrower within the meaning of Section 881(c)(3)(B) of the Code; and
4. The Non-U.S. Lender is not a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(C) of the Code.
IN WITNESS WHEREOF, the undersigned has duly executed this
Certificate.
[NAME OF NON-U.S. LENDER]
By:
-------------------------------------
Name:
Title:
Date:
------------------------------
G-1
EXHIBIT H
FORM OF CLOSING CERTIFICATE
Pursuant to Section 5.1(i) of the Credit Agreement dated as of
October 30, 2003 (the "CREDIT AGREEMENT"; terms defined therein being used
herein as therein defined), among SPANISH BROADCASTING SYSTEM, INC., a Delaware
corporation (the "BORROWER"), the several banks and other financial institutions
or entities from time to time party thereto (the "LENDERS"), XXXXXXX XXXXX,
XXXXXX XXXXXX & XXXXX, INCORPORATED and DEUTSCHE BANK SECURITIES INC., as
co-documentation agents (in such capacity, the "CO-DOCUMENTATION AGENTS"),
XXXXXX COMMERCIAL PAPER INC., as syndication agent (in such capacity, the
"SYNDICATION AGENT") and XXXXXX COMMERCIAL PAPER INC., as administrative agent
(in such capacity, the "ADMINISTRATIVE AGENT"), the undersigned [INSERT TITLE OF
OFFICER] of [INSERT NAME OF COMPANY] (the "COMPANY") hereby certifies as
follows:
1. The representations and warranties of the Company set forth
in each of the Loan Documents to which it is a party or which are contained in
any certificate furnished by or on behalf of the Company pursuant to any of the
Loan Documents to which it is a party are true and correct in all material
respects on and as of the date hereof with the same effect as if made on the
date hereof, except for representations and warranties expressly stated to
relate to a specific earlier date, in which case such representations and
warranties were true and correct in all material respects as of such earlier
date.
2. ____________ is the duly elected and qualified Corporate
Secretary of the Company and the signature set forth for such officer below is
such officer's true and genuine signature.
3. No Default or Event of Default has occurred and is
continuing as of the date hereof or after giving effect to the Loans to be made
on the date hereof and the other transactions to be completed on the Closing
Date, all as contemplated by the Loan Documents. [BORROWER ONLY.]
4. The conditions precedent set forth in Section 5.1 of the
Credit Agreement were satisfied as of the Closing Date except as set forth on
Schedule I hereto. [BORROWER ONLY.]
5. Attached hereto as Attachment 1 is a calculation
demonstrating that Adjusted EBITDA for the 12 month period ended June 30, 2003
was at least $41,500,000.
The undersigned Corporate Secretary of the Company certifies
as follows:
1. There are no liquidation or dissolution proceedings pending
or to my knowledge threatened against the Company, nor has any other event
occurred adversely affecting or threatening the continued corporate existence of
the Company.
2. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction of its
organization.
3. Attached hereto as ANNEX 1 is a true and complete copy of
resolutions duly adopted by the Board of Directors of the Company on
________________; such resolutions have not in any way been amended, modified,
revoked or rescinded, have been in full force and effect since their adoption to
and including the date hereof and are now in full force and effect [and are the
only corporate proceedings of the Company now in force relating to or affecting
the matters referred to therein.]
H-1
4. Attached hereto as ANNEX 2 is a true and complete copy of
the By-Laws of the Company as in effect on the date hereof.
5. Attached hereto as ANNEX 3 is a true and complete copy of
the Certificate of Incorporation of the Company as in effect on the date hereof,
and such certificate has not been amended, repealed, modified or restated.
6. The following persons are now duly elected and qualified
officers of the Company holding the offices indicated next to their respective
names below, and such officers have held such offices with the Company at all
times since the date indicated next to their respective titles to and including
the date hereof, and the signatures appearing opposite their respective names
below are the true and genuine signatures of such officers, and each of such
officers is duly authorized to execute and deliver on behalf of the Company each
of the Loan Documents to which it is a party and any certificate or other
document to be delivered by the Company pursuant to the Loan Documents to which
it is a party:
NAME OFFICE DATE SIGNATURE
IN WITNESS WHEREOF, the undersigned have hereunto set our
names as of the date set forth below.
----------------------------------- ---------------------------------------
Name: Name:
Title: Title:
Date: ____________________, ________
H-2
EXHIBIT I
I-1
EXHIBIT J
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of October
30, 2003 (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"), among SPANISH BROADCASTING SYSTEM, INC., a Delaware
corporation (the "BORROWER"), the several banks and other financial institutions
or entities from time to time party thereto (the "LENDERS"), XXXXXXX XXXXX,
XXXXXX XXXXXX & XXXXX, INCORPORATED and DEUTSCHE BANK SECURITIES INC., as
co-documentation agents (in such capacity, the "CO-DOCUMENTATION AGENTS"),
XXXXXX COMMERCIAL PAPER INC., as syndication agent (in such capacity, the
"SYNDICATION AGENT") and XXXXXX COMMERCIAL PAPER INC., as administrative agent
(in such capacity, the "ADMINISTRATIVE AGENT"). Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
The Assignor identified on Schedule I hereto (the "ASSIGNOR")
and the Assignee identified on Schedule I hereto (the "ASSIGNEE") agree as
follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date (as defined below), the interest described in Schedule I
hereto (the "ASSIGNED INTEREST") in and to the Assignor's rights and obligations
under the Credit Agreement with respect to those credit facilities contained in
the Credit Agreement as are set forth on Schedule I hereto (individually, an
"ASSIGNED FACILITY" collectively, the "ASSIGNED FACILITIES"), in a principal
amount for each Assigned Facility as set forth on Schedule I hereto.
2. The Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or with
respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Loan Document or any
other instrument or document furnished pursuant thereto, other than that the
Assignor has not created any adverse claim upon the interest being assigned by
it hereunder and that such interest is free and clear of any such adverse claim;
(b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower, any of its Subsidiaries or
any other obligor or the performance or observance by the Borrower, any of its
Subsidiaries or any other obligor of any of their respective obligations under
the Credit Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; and (c) attaches any Notes held
by it evidencing the Assigned Facilities and (i) requests that the
Administrative Agent, upon request by the Assignee, exchange the attached Notes
for a new Note or Notes payable to the Assignee and (ii) if the Assignor has
retained any interest in the Assigned Facility, requests that the Administrative
Agent exchange the attached Notes for a new Note or Notes payable to the
Assignor, in each case in amounts which reflect the assignment being made hereby
(and after giving effect to any other assignments which have become effective on
the Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to Section 4.1 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (c) agrees
that it will, independently and without reliance upon the Assignor, the
Arranger, the Agents or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking
J-1
action under the Credit Agreement, the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto; (d) appoints and
authorizes the Agents to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or thereto as are
delegated to the Agents by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the provisions of
the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States, its obligations pursuant to Section
2.20(f) of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall
be the Effective Date of Assignment described in Schedule I hereto (the
"EFFECTIVE DATE"). Following the execution of this Assignment and Acceptance, it
will be delivered to the Administrative Agent for acceptance by it and recording
by the Administrative Agent pursuant to the Credit Agreement, effective as of
the Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such
acceptance and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and other
amounts) [to the Assignor for amounts that have accrued to the Effective Date
and to the Assignee for amounts that have accrued subsequent to the Effective
Date] [to the Assignee whether such amounts have accrued prior to the Effective
Date or accrue subsequent to the Effective Date. The Assignor and the Assignee
shall make all appropriate adjustments in payments by the Agent for periods
prior to the Effective Date or with respect to the making of this assignment
directly between themselves.]
6. From and after the Effective Date, (a) the Assignee shall
be a party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the other Loan Documents and shall be bound by the
provisions thereof and (b) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
7. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first above written by
their respective duly authorized officers on Schedule 1 hereto.
J-2
Schedule I
to Assignment and Acceptance
Name of Assignor: ______________________________________________________________
Name of Assignee: ______________________________________________________________
Effective Date of Assignment: __________________________________________________
Credit Facility Principal Amount Commitment Percentage
Assigned Assigned Assigned
--------------- ---------------- ---------------------
$-------------- ----.-----------%
[Name of Assignee] [Name of Assignor]
By: By:
------------------------------- ----------------------------------
Title: Title:
J-3
Accepted Consented
XXXXXX COMMERCIAL PAPER INC. SPANISH BROADCASTING SYSTEM, INC.
By: By:
------------------------------- ----------------------------------
Title: Title:
J-4
