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AMENDED AND RESTATED CREDIT AGREEMENT
dated as of September 30, 1996
among
XXXXXXXX COMMUNICATIONS, INC.,
THE BANKS,
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as Documentation Agent,
and
FLEET BANK, N.A.,
as Administrative Agent
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
1.1. Defined Terms........................................................1
1.2. General Interpretation..............................................14
ARTICLE II
THE CREDITS
2.1. Facility A Loans....................................................14
2.2. Facility B Loans....................................................14
2.3. Facility Letters of Credit..........................................15
2.3.1. Obligation to Issue.......................................15
2.3.2. Types and Amounts.........................................15
2.3.3. Conditions................................................15
2.3.4. Procedure for Issuance of Facility Letters of Credit......16
2.3.5. Reimbursement Obligations.................................16
2.3.6. Payment of Reimbursement Obligations......................17
2.3.7. Letter of Credit Participations...........................18
2.3.8. Compensation for Facility Letters of Credit...............18
2.4. Payment of Loans....................................................18
2.5. Mandatory Reductions of Aggregate Commitment........................18
2.6. Additional Mandatory Principal Payments; Additional
Mandatory Reductions of Aggregate
Commitment..........................................................19
2.7. Optional Principal Payments.........................................20
2.8. Fees; Commitment Reductions.........................................20
2.8.1. Agent Fees................................................20
2.8.2. Commitment Fee; Voluntary Reduction of Aggregate
Commitment................................................20
2.9. Method of Borrowing.................................................21
2.10. Borrowing Notices: Method of Selecting Types and Eurodollar Interest
Periods for Loans...................................................21
2.11. Method of Selecting Types and Eurodollar Interest Periods
for Conversion and Continuation of Loans............................22
2.12. Applicable Margin...................................................22
2.13. Method of Payment...................................................23
2.14. Notes; Telephonic Notices...........................................23
2.15. Interest Payment Dates; Interest Basis..............................24
2.16. Notification of Loans, Interest Rates, Prepayments and
Commitment Reductions...............................................24
2.17. Lending Installations...............................................24
2.18. Post Default Rate...................................................24
2.19. Prepayment of Loans and Cash Collateralization of Facility
Letters of Credit upon Change in Control............................25
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2.20. Non-Receipt of Funds by the Administrative Agent....................25
2.21. Withholding Tax Exemption...........................................25
2.22. Collateral Security; Further Assistance.............................26
ARTICLE III
CHANGE IN CIRCUMSTANCES; INDEMNIFICATION
3.1. Yield Protection....................................................27
3.2. Availability of Interest Rate.......................................27
3.3. Failure to Pay or Borrow on Certain Dates...........................27
3.4. Changes in Capital Adequacy Regulations.............................28
3.5. Bank Certificates; Survival of Indemnity............................28
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Credit Extension............................................28
4.2. Each Credit Extension...............................................30
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1. Corporate Existence and Standing; Capital Structure.................30
5.2. Authorization and Validity..........................................31
5.3. No Conflict; Authorizations.........................................31
5.4. Financial Statements................................................31
5.5. Material Adverse Change.............................................31
5.6. Taxes...............................................................31
5.7. Litigation..........................................................31
5.8. Subsidiaries........................................................32
5.9. ERISA...............................................................32
5.10. Defaults............................................................32
5.11. Accuracy of Information.............................................32
5.12. Regulation U........................................................32
5.13. Material Agreements.................................................32
5.14. Senior and Subordinated Indebtedness................................32
5.15. Compliance with Laws................................................32
ARTICLE VI
COVENANTS
6.1. Financial Reporting.................................................33
6.2. Use of Proceeds.....................................................34
6.3. Notice of Default...................................................35
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6.4. Conduct of Business; Maintenance of Authorizations..................35
6.5. Taxes...............................................................35
6.6. Insurance...........................................................35
6.7. Compliance with Laws................................................35
6.8. Maintenance of Properties...........................................35
6.9. Inspection..........................................................35
6.10. Dividends...........................................................36
6.11. Indebtedness........................................................36
6.12. Merger; Sale of Assets..............................................36
6.13. Sale of Accounts....................................................37
6.14. Sale and Leaseback..................................................37
6.15. Acquisitions........................................................37
6.16. Investments.........................................................38
6.17. Guaranties..........................................................39
6.18. Liens...............................................................39
6.19. Affiliates..........................................................40
6.20. Subordinated Indebtedness...........................................40
6.21. Operation of Business...............................................40
6.22. Total Leverage Ratio................................................41
6.23. Senior Leverage Ratio...............................................41
6.24. Interest Coverage Ratio.............................................41
6.25. Fixed Charge Coverage Ratio.........................................41
6.26. Certain Amendments..................................................41
ARTICLE VII
DEFAULTS
7.1. Representations and Warranties......................................42
7.2. Nonpayment of Notes.................................................42
7.3. Breach of Covenants.................................................42
7.4. Other Provisions....................................................42
7.5. Nonpayment of Other Indebtedness....................................42
7.6. Voluntary Bankruptcy................................................42
7.7. Involuntary Bankruptcy..............................................43
7.8. Government Seizure..................................................43
7.9. Judgments and Orders................................................43
7.10. ERISA...............................................................43
7.11. Authorization.......................................................43
7.12. Other Loan Documents................................................44
7.13. Rate Hedging Obligations............................................44
7.14. Invalidity of Pledge Agreement......................................44
7.15. Hazardous Substances................................................44
7.16. Xxxxxx Default......................................................44
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
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8.1. Acceleration........................................................45
8.2. Amendments..........................................................46
8.3. Preservation of Rights..............................................47
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations.........................................47
9.2. Governmental Regulation.............................................47
9.3. Taxes...............................................................48
9.4. Readings............................................................48
9.5. Entire Agreement....................................................48
9.6. Accounting..........................................................48
9.7. Several Obligations; Benefits of this Agreement.....................48
9.8. Expenses............................................................48
9.9. Numbers of Documents................................................48
9.10. Severability of Provisions..........................................48
9.11. Nonliability of Banks...............................................49
9.12. CHOICE OF LAW.......................................................49
9.13. CONSENT TO JURISDICTION.............................................49
9.14. Arbitration; Remedies...............................................49
9.15. Confidentiality.....................................................50
9.16. Limitation of Rights................................................50
ARTICLE X
THE ADMINISTRATIVE AGENT AND THE DOCUMENTATION AGENT
10.1. Appointment and Powers..............................................50
10.2. Powers..............................................................51
10.3. General Immunity....................................................51
10.4. No Responsibility for Loans, Recitals, etc..........................51
10.5. Right to Indemnity..................................................52
10.6. Action on Instructions of Banks.....................................52
10.7. Employment of Managing Agents' and Counsel..........................52
10.8. Reliance on Documents; Counsel......................................52
10.9. Managing Agents' Reimbursement and Indemnification..................52
10.10. Rights as a Lender..................................................52
10.11. Bank Credit Decision................................................52
10.12. Successor Managing Agents...........................................53
10.13. Distribution of Information.........................................53
10.14. Collateral Releases.................................................53
10.15. Managing Agents' Fees...............................................53
ARTICLE XI
SETOFF; RATABLE PAYMENTS
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11.1. Setoff..............................................................54
11.2. Ratable Payments....................................................54
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns..............................................54
12.2. Participations......................................................54
12.2.1. Permitted Participants; Effect............................54
12.2.2. Voting Rights.............................................55
12.2.3. Benefit of Setoff...................................................55
12.3. Assignments...............................................55
12.3.1. Permitted Assignments.....................................55
12.3.2. Effect; Effective Date....................................55
12.4. Dissemination of Information..............................56
12.5. Tax Treatment.......................................................56
ARTICLE XIII
NOTICES
13.1. Giving Notice.......................................................56
13.2. Change of Address...................................................56
ARTICLE XIV
COUNTERPARTS
14.1. Counterparts........................................................57
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EXHIBITS
Exhibit A-1 - Facility A Promissory Note
Exhibit A-2 - Facility B Promissory Note
Exhibit B-1 - Opinion of Counsel
Exhibit B-2 - Opinion of FCC Counsel
Exhibit C - Compliance Certificate
Exhibit D - Assignment Agreement
SCHEDULES
Schedule 1 - Subsidiaries and Other Investments
Schedule 2 - Other Indebtedness
Schedule 3 - Existing Liens
Schedule 4 - Outstanding Shares
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XXXXXXXX COMMUNICATIONS, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement" or this
"Credit Agreement"), dated as of September 30, 1996, is by and among XXXXXXXX
COMMUNICATIONS, INC., the Banks, FIRST UNION NATIONAL BANK OF NORTH CAROLINA, as
Documentation Agent, and FLEET BANK, N.A., as Administrative Agent. Capitalized
terms used in this introductory paragraph and the recitals below not otherwise
defined, shall have the meanings given such terms in Section 1.1 of this
Agreement.
RECITALS:
A. The Company entered into a credit agreement dated as of February
17, 1995, as amended on March 20, 1996 and on April 22, 1996 (the "1995 Credit
Agreement") with the Managing Agents (and in the case of the Administrative
Agent, the predecessor thereof) and certain of the Banks, pursuant to which such
Banks made certain loans and advances to the Company. The obligations under the
1995 Credit Agreement were secured by certain shares of stock pledged by the
Company and certain Subsidiaries of the Company pursuant to the Pledge
Agreement.
B. The Company has requested that the Managing Agents and the Banks
enter into this Credit Agreement to extend and refinance the loans made under
the 1995 Credit Agreement, to provide for a new facility to enable the Company
to make certain acquisitions from time to time, to provide for a letter of
credit facility and for the other purposes set forth herein. The Company
intends for the Pledge Agreement to remain in full force and effect and for the
Pledged Stock to secure the obligations arising hereunder. For purposes of the
Pledge Agreement, this Agreement and the Loans made and Facility Letters of
Credit issued hereunder shall be deemed to be a refinancing of the 1995 Credit
Agreement and the obligations arising thereunder.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
1.1. DEFINED TERMS. For purposes of this Credit Agreement, in addition
to the terms defined elsewhere in this Credit Agreement, the following terms
shall have the meanings set forth below:
"Acquisition" means any transaction, or series of related transactions,
consummated on or after the date of this Agreement by which the Company or any
Subsidiary (i) acquires any going business or all or substantially all of the
assets of any firm, corporation or division thereof, other than a Subsidiary,
whether through purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent transaction in a
series of transactions) (a) any of the securities of a corporation (other than a
Subsidiary) which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency) or (b) any of the partnership interests of a partnership (other
than a Subsidiary).
"Administrative Agent" means Fleet Bank, N.A. in its capacity as
administrative agent for the Banks pursuant to Section 10.1, and not in its
individual capacity as a Bank, and any successor Administrative Agent appointed
pursuant to Section 10.12.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under direct or indirect common control with such
Person. A Person shall be deemed to control another Person if the controlling
Person owns 10% or more of any class of voting securities (or other ownership
interests) of the controlled Person or possesses, directly or indirectly, the
power to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means the aggregate of the Commitments of all the
Banks, as reduced from time to time pursuant to the terms hereof.
"Aggregate Facility A Commitment" means the aggregate of the Facility A
Commitments of all of the Banks, as reduced from time to time pursuant to the
terms hereof.
"Aggregate Facility B Commitment" means the aggregate of the Facility B
Commitments of all of the Banks, as reduced from time to time pursuant to the
terms hereof.
"Agreement" means this Amended and Restated Credit Agreement, as it may
be amended or modified and in effect from time to time.
"Allowed Acquisition" is defined in Section 6.15.
"Allowed Acquisition Certificate" has the meaning assigned to such term
in Section 6.15.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the sum of
Federal Funds Effective Rate for such day plus 1/2% per annum.
"Amended Partnership Agreement" has the meaning assigned to such term in
the Contribution Agreement.
"Applicable Margin" is defined in Section 2.12.
"Authorizations" means all filings, recordings and registrations with,
and all validations or exemptions, approvals, orders, authorizations, consents,
franchises, licenses, certificates and permits from, the FCC, other Governmental
Authorities, professional sports associations and any other Persons.
"Authorized Officer" means any of the Chairman of the Board of Directors
and Chief Executive Officer, the President and Chief Operating Officer or the
Executive Vice President, Chief Financial Officer and Treasurer of the Company,
acting singly.
"Banks" means the banks listed on the signature pages of this Agreement
and their respective successors and assigns.
"Base Eurodollar Rate" means, with respect to a Eurodollar Advance for
the relevant Eurodollar Interest Period, the rate determined by the
Administrative Agent to be the rate at which deposits in U.S. Dollars are
offered by the Administrative Agent to first-class banks in the London interbank
market at or before 11:00 a.m. (London time) two Business Days prior to the
first day of such Eurodollar Interest Period, in the approximate amount of such
Eurodollar Advance and having a maturity approximately equal to such Eurodollar
Interest Period.
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"Borrowing Date" means the date on which a Loan is made hereunder.
"Borrowing Notice" is defined in Section 2.10.
"Business Day" means (i) with respect to borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks are open for business in Charlotte and New York and on which
dealings in U.S. Dollars are carried on in the London interbank market and (ii)
for all other purposes, a day (other than a Saturday or Sunday) on which banks
are open for business in Charlotte and New York.
"Capital Expenditures" of a Person means the aggregate amount of all
purchases or acquisitions of items considered to be capital items in accordance
with Generally Accepted Accounting Principles, including, without limitation,
all expenditures capitalized in accordance with Generally Accepted Accounting
Principles relating to property, plant, or equipment on the balance sheet of
such Person, and excluding Acquisitions permitted pursuant to Section 6.15 of
this Agreement.
"Capitalized Lease" means any lease of property which would be
capitalized on a balance sheet of the Company or a Subsidiary, prepared in
accordance with Generally Accepted Accounting Principles.
"Capitalized Lease Obligations" means the amount of the obligations of
the Company and the Subsidiaries under Capitalized Leases which would be shown
as a liability on a balance sheet of the Company or a Subsidiary, prepared in
accordance with Generally Accepted Accounting Principles.
"Change in Control" means the failure of the Xxxxxxxx Family to own, of
record and beneficially, with full power to vote, at least 51% of the voting
stock of the Company. As used herein "Xxxxxxxx Family" means (i) Xxxxx X.
Xxxxxxxx and the spouse and lineal descendants of Xxxxx X. Xxxxxxxx, whether by
blood or adoption, (ii) any trusts for the exclusive benefit of the individuals
referred to in clause (i) above or the executor or administrator of the estate
of or other legal representative of the individuals referred to in clause (i)
above, and (iii) any other Person, at least a majority of the outstanding voting
stock of which is owned, of record and beneficially, by any of the Persons
referred to in clause (i) or (ii) above.
"Closing Date" means the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral Agent" means First Trust of California, National Association,
in its capacity as Pledgee under and as defined in the Pledge Agreement, and any
successor thereto.
"Commitment" means, with respect to any Bank, the obligation of such Bank
to make Facility A Loans (and to issue Facility Letters of Credit incident
thereto) and Facility B Loans, not exceeding in the aggregate the amount set
forth underneath such Bank's signature below under the column entitled "Total
Commitments," as such amount may be amended, supplemented or reduced from time
to time pursuant to the terms hereof.
"Company" means Xxxxxxxx Communications, Inc., a Delaware corporation,
and its successors and assigns.
"Compliance Certificate" means a compliance certificate in substantially
the form of Exhibit "C" hereto, with appropriate insertions, signed by the Chief
Financial Officer of the Company, showing the calculations
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necessary to determine compliance with this Agreement and stating that no
Default or Unmatured Default exists, or if any Default or Unmatured Default
exists, describing the nature thereof and any action the Company is taking or
proposes to take with respect thereto.
"Contribution Agreement" means that certain Contribution Agreement dated
as of February 4, 1994 among New Century, Century Management, Inc., KJR Radio,
Inc. and the Company, as in effect on the Closing Date.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Company or any Subsidiary, are treated
as a single employer under Section 414(b) or 414(c) of the Code.
"Conversion/Continuation Notice" is defined in Section 2.11.
"Default" means an event described in Section 7.
"Documentation Agent" means First Union National Bank of North Carolina
in its capacity as documentation agent hereunder pursuant to Section 10.1, and
not in its individual capacity as a Bank, and any successor Documentation Agent
appointed pursuant to Section 10.12.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurodollar Advance" means a Loan which bears interest at a Eurodollar
Rate.
"Eurodollar Interest Period" means, with respect to a Eurodollar Advance,
a period of one, two, three or six months commencing on a Business Day and
selected by the Company pursuant to Section 2.10 or 2.11. A month means a
period starting on one day in a calendar month and ending on the numerically
corresponding day in the next calendar month. If there is no such numerically
corresponding day in the month in which a Eurodollar Interest Period ends, such
Eurodollar Interest Period shall end on the last Business Day of such month. If
a Eurodollar Interest Period would otherwise end on a day which is not a
Business Day, such Eurodollar Interest Period shall end on the next succeeding
Business Day, PROVIDED, HOWEVER, that if said next succeeding Business Day falls
in a new calendar month, such Eurodollar Interest Period shall end on the
immediately preceding Business Day.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Eurodollar Interest Period, the sum of (i) the quotient of (a) the Base
Eurodollar Rate applicable to such Eurodollar Interest Period, divided by (b)
one minus the Reserve Requirement (expressed as a decimal) applicable to such
Eurodollar Interest Period plus (ii) the Applicable Margin. The Eurodollar Rate
shall be rounded, if necessary, to the next higher 1/16 of 1%.
"Excess Cash Flow" means, for any fiscal year, (i) Operating Cash Flow
minus (ii) the sum of (a) Capital Expenditures, (b) mandatory scheduled
principal reductions or payments made on Indebtedness (exclusive of mandatory
prepayments made pursuant to Section 2.6 (i) during such period), (c) Interest
Expense, (d) taxes actually paid and (e) $2,250,000, all calculated for such
fiscal year for the Company and the Subsidiaries on a consolidated basis in
accordance with Generally Accepted Accounting Principles consistently applied.
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"Facility A Commitment" means, with respect to any Bank, the obligation
of such Bank to make Facility A Loans and to issue Facility Letters of Credit
not exceeding the amount set forth underneath such Bank's signature below under
the column entitled "Facility A Commitment," as such amount may be amended,
supplemented or reduced from time to time pursuant to the terms hereof.
"Facility A Commitment Termination Date" means March 31, 2002 or any
earlier date on which the Aggregate Facility A Commitment is cancelled by the
Company or otherwise terminated pursuant to this Agreement.
"Facility A Loans" shall have the meaning assigned to such term in
Section 2.1.
"Facility A Note" means a promissory note in substantially the form of
Exhibit "A-1" hereto, duly executed and delivered to the Administrative Agent by
the Company and payable to the order of a Bank in the amount of its Facility A
Commitment, including any amendment, modification, renewal or replacement of
such promissory note.
"Facility B Commitment" means, with respect to any Bank, the obligation
of such Bank to make Facility B Loans not exceeding the amount set forth
underneath such Bank's signature below under the column entitled "Facility B
Commitment," as such amount may be amended, supplemented or reduced from time to
time pursuant to the terms hereof.
"Facility B Commitment Termination Date" means September 30, 1997
(PROVIDED, HOWEVER, that the Company may elect to extend such date for an
additional period of 6 months to March 31, 1998, so long as written notice of
such election is delivered to the Managing Agents no later than August 31,
1997), or any earlier date on which the Aggregate Commitment is cancelled by the
Company or otherwise terminated pursuant to this Agreement.
"Facility B Loans" shall have the meaning assigned to such term in
Section 2.2.
"Facility B Note" means a promissory note in substantially the form of
Exhibit "A-2" hereto, duly executed and delivered to the Administrative Agent by
the Company and payable to the order of a Bank in the amount of its Facility B
Commitment, including any amendment, modification, renewal or replacement of
such promissory note.
"Facility Letter of Credit" means any Letter of Credit issued by the
Issuer for the account of the Company pursuant to the terms of Section 2.3.
"Facility Letter of Credit Obligations" means, at any date of
determination thereof, all liabilities whether actual or contingent, of the
Company to the Issuer and the Banks in respect of the Facility Letters of
Credit, including, without limitation, the sum of (a) Reimbursement Obligations
and (b) the aggregate undrawn face amount of the outstanding Facility Letters of
Credit.
"FCC" means the Federal Communications Commission or any other regulatory
body which succeeds to the functions of the Federal Communications Commission.
"Federal Funds Effective Rate" means, for any day, a fluctuating interest
rate per annum equal to the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by
federal funds brokers on such day, as published for such day (or, if such day is
not a
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Business Day, for the preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations at approximately 11:00 a.m. (New York time) on
such day on such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by the Administrative
Agent in its sole discretion.
"Fee Letter" means the fee letter, dated as of September 30, 1996,
executed by the Company in favor of the Managing Agents and the Administrative
Agent.
"First Union" means First Union National Bank of North Carolina in its
individual capacity, and its successors and assigns.
"Fixed Charge Coverage Ratio" means, as at the end of any fiscal quarter,
the ratio of (a) the sum of Operating Cash Flow for the four fiscal quarters
then ended minus the sum of (i) cash taxes paid during such fiscal quarters then
ended; (ii) Capital Expenditures for the fiscal quarters then ended (other than
Capital Expenditures financed with insurance proceeds to replace damaged,
destroyed, lost or stolen fixed assets); (iii) cash dividends paid for the
fiscal quarters then ended; and (iv) cash capital contributions from the Company
or any Subsidiary to New Century made during such fiscal quarters then ended, to
(b) the sum of (i) mandatory principal payments required to be made on
Indebtedness during the fiscal quarters then ended (exclusive of mandatory
prepayments made in respect of (1) Excess Cash Flow during such period and (2)
net cash proceeds from any Sale); and (ii) Interest Expense for the fiscal
quarters then ended.
"Fleet" means Fleet Bank, N.A. in its individual capacity, and its
successors and assigns.
"Floating Rate" means a rate per annum equal to the sum of (i) the
Alternate Base Rate plus (ii) the Applicable Margin, changing when and as the
Alternate Base Rate changes.
"Floating Rate Advance" means a Loan which bears interest at the Floating
Rate.
"Generally Accepted Accounting Principles" shall mean generally accepted
accounting principles, as recognized by the American Institute of Certified
Public Accountants, consistently applied and maintained on a consistent basis
for the Company, as applicable, throughout the period indicated and consistent
with the prior financial practices of the Company as reflected on the financial
statements of the Company so as to properly reflect the financial condition, and
the results of operations and cash flow of the Company, as applicable; PROVIDED,
HOWEVER, that, in the event that changes in Generally Accepted Accounting
Principles shall be mandated by the Financial Accounting Standards Board, or any
similar accounting body of comparable standing, or shall be recommended by the
Company's certified public accountants, to the extent that such changes would
modify or could modify such accounting principles or the interpretation or
application thereof, such changes shall be followed with respect to the
interpretation of this Agreement only from and after the date the Company and
the Agent and the Required Banks shall have amended this Agreement to the extent
necessary to reflect any such changes in the financial covenants and other terms
and conditions of this Agreement.
"Governmental Authority" means any federal, state or local regulatory,
governmental or public body or authority or any subdivision thereof.
"Guaranty" means any agreement by which the Company or any Subsidiary
assumes, guarantees, endorses, contingently agrees to purchase or provide funds
for the payment of, or otherwise becomes liable for the obligation of any other
Person, or agrees to maintain the net worth or working capital or other
financial condition of any other Person or otherwise assure any creditor of such
other Person against loss, including,
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without limitation, the contingent liability of the Company or any Subsidiary
under any Letter of Credit or surety bond, but excluding endorsements of
instruments for deposit or collection in the ordinary course of business.
"Xxxxxx" means Xxxxxx Television of Monterey, a California limited
partnership.
"Xxxxxx Credit Agreement" means the Credit Agreement, dated as of
April 24, 1996 by and between Xxxxxx, First Union National Bank of North
Carolina, as documentation agent, NatWest Bank N.A. (the predecessor to Fleet),
as administrative agent, and the banks from time to time parties thereto, as
amended, modified, restated or supplemented from time to time."
"Xxxxxx Guaranty Agreement" means the Guaranty Agreement, dated April 24,
1996, from the Company in favor of the banks under the Xxxxxx Credit Agreement,
as amended, modified, restated or supplemented from time to time or any
successor guaranty agreement to be entered into by the Company in connection
with any assignment of the Monterey Option Agreement by the Company.
"Indebtedness" means the Company's and each Subsidiary's (i) obligations
for borrowed money, (ii) obligations representing the deferred purchase price of
property (other than accounts payable arising in connection with the purchase of
inventory on terms customary in the trade and Program Obligations), (iii)
obligations, whether or not assumed, secured by Liens or payable out of the
proceeds or production from property now or hereafter owned or acquired by the
Company or any Subsidiary, (iv) obligations which are evidenced by notes,
acceptances or other instruments, (v) Capitalized Lease Obligations and
(vi) obligations arising under or in connection with Guaranties, and (vii)
obligations for the payment of damages awarded (of an amount not to exceed
$6,000,000) to the plaintiffs in a certain lawsuit against the Company on
February 29, 1996, as reduced by court order on August 16, 1996.
"Interest Coverage Ratio" means, as at any date of calculation, the ratio
of (i) Operating Cash Flow for the four consecutive fiscal quarters ending on or
most recently ended prior to such date of calculation to (ii) Interest Expense
for the four consecutive fiscal quarters ending on or most recently ended prior
to such date of calculation.
"Interest Expense" means, for any period of calculation, the aggregate
amount of interest, whether paid in cash or accrued as a liability, on
Indebtedness (including Rate Hedging Obligations and excluding the amortization
of any facility fees paid in connection with this or any earlier financing, and
interest paid or accrued on behalf of New Century), all calculated for such
period for the Company and the Subsidiaries on a consolidated basis in
accordance with Generally Accepted Accounting Principles consistently applied.
"Investment" means any loan, advance, extension of credit (other than
accounts receivable arising in the ordinary course of business), or contribution
of capital by the Company or any Subsidiary to any other Person other than a
Subsidiary, or any investment in, or purchase or other acquisition of, the
stock, notes, partnership interests, debentures or other securities of any other
Person other than a Subsidiary, made by the Company or any Subsidiary.
"Issuance Date" means, with respect to any Facility Letter of Credit, the
date on which such Facility Letter of Credit is issued hereunder.
"Issuer" means Fleet, in its capacity as the issuer of the Facility
Letters of Credit.
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"Lending Installation" means any office, branch, subsidiary or affiliate
of any Bank or either of the Managing Agents.
"Letter of Credit" means a letter of credit or similar instrument which
is issued upon the application of the Company or any Subsidiary or upon which
the Company or any Subsidiary is account party or for which the Company or any
Subsidiary is in any way liable.
"Letter of Credit Request" is defined in Section 2.3.4.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, claim, charge, encumbrance, preference, priority or
other security interest or preferential arrangement of any kind or nature
whatsoever (including, without limitation, the interest of a vendor or lessor
under any conditional sale, Capitalized Lease or other title retention
agreement) in, of or on any of the Company's or any Subsidiary's property.
"Loan" means any loan made under this Agreement (whether a Facility A
Loan or a Facility B Loan).
"Loan Documents" means this Agreement, the Notes, the Pledge Agreement,
all outstanding Facility Letters of Credit and any other documents or
instruments which may be executed and delivered by the Company in connection
herewith (including without limitation any Rate Hedging Agreements entered into
between the Company and any Bank), as the same may be amended or modified and in
effect from time to time.
"Loan Repayment Date" means March 31, 2002, or any earlier Date on which
the Aggregate Commitment is cancelled by the Company or otherwise terminated
pursuant to this Agreement.
"Managing Agents" means the Administrative Agent and the Documentation
Agent and their respective successors and assigns.
"Material Adverse Effect" means a material adverse effect on (i) the
business, properties, condition (financial or otherwise), results of operations,
or prospects of the Company and the Subsidiaries taken as a whole, (ii) the
ability of the Company to perform its obligations under the Loan Documents, or
(iii) the validity or enforceability of any of the Loan Documents or the rights
or remedies of the Managing Agents or the Banks thereunder.
"Monterey Acquisition" means the Acquisition by the Company or one of its
wholly owned Subsidiaries from Xxxxxx, pursuant to the provisions of the
Monterey Acquisition Agreement, of the assets relating to television station
KCCN-TV in Monterey, California.
"Monterey Acquisition Agreement' means an agreement between the Company
or one of its wholly owned Subsidiaries and Xxxxxx in the form of Exhibit A to
the Monterey Option Agreement, or any successor agreement entered into by the
Company in connection with the Permitted Monterey Assignment.
"Monterey Documents" means, collectively, the Monterey Acquisition
Agreement, the Monterey Time Brokerage Agreement and the Monterey Option
Agreement.
"Monterey Time Brokerage Agreement" means the Time Brokerage Agreement
between Xxxxxxxx Communications Group, Inc. and Xxxxxx dated as of April 24,
1996, as amended, modified, restated or
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supplemented from time to time, or any successor agreement entered into by the
Company in connection with the Permitted Monterey Assignment.
"Monterey Option Agreement" means the Option Agreement between Xxxxxxxx
Communications Group, Inc. and Xxxxxx dated as of April 24, 1996, pursuant to
which Xxxxxx has granted to the Company or one of its wholly owned Subsidiaries
an option to acquire the assets relating to television station KCCN-TV in
Monterey, California, as amended, modified, restated or supplemented from time
to time, or any successor agreement entered into by the Company in connection
with the Permitted Monterey Assignment.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Company or any member
of the Controlled Group is a party to which more than one employer is obligated
to make contributions.
"New Century" means New Century Seattle Partners, L.P., a limited
partnership organized under the laws of the State of Delaware, and its
successors and assigns.
"Note Agreements" means, collectively, (i) that certain Note Agreement
(the "Series A and B Note Agreement"), dated as of December 1, 1988, as amended
by that certain Agreement of Waiver and Amendment dated as of September 30, 1990
and that certain Amendment Agreement dated as of October 1, 1991, between the
Company and Phoenix Home Life Insurance Company (as assignee of a Note Agreement
from Home Life Insurance Company), and (ii) those certain separate Note
Agreements (the "1989 Note Agreements"), each dated as of December 1, 1989, as
amended by that certain Agreement of Waiver and Amendment dated as of September
30, 1990 and that certain Amendment Agreement dated as of October 1, 1991, among
the Company, CIG & Co. (as assignee of certain Note Agreements from Connecticut
General Life Insurance Company), Southern Farm Bureau Annuity Insurance Company,
The Travelers Insurance Company, The Travelers Indemnity Company, and Phoenix
Home Life Insurance Company (as assignee of a Note Agreement from Home Life
Insurance Company).
"Notes" means the Facility A Notes and the Facility B Notes,
collectively.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Notes, all Facility Letter of Credit Obligations, all accrued
and unpaid fees and all other obligations of the Company and the Subsidiaries to
the Banks or to any Bank, the Issuer, the Managing Agents or any indemnified
party hereunder arising under the Loan Documents.
"Operating Cash Flow" means, for any period of calculation, (i) pre-tax
income or deficit, as the case may be (excluding damages awarded to the
plaintiffs in a lawsuit against the Company on February 29, 1996, in an
aggregate amount not to exceed $14,200,000, to the extent recognized as an
expense by the Company in any such period; and excluding extraordinary gains or
losses and any gain (or loss) from any sale, lease, transfer or other
disposition of any property, asset or business and excluding any income from
equity investments) plus, to the extent deducted in calculating pre-tax income
or deficit, (a) all depreciation and amortization expense (including the
amortization of Program Obligations), and (b) interest expense (net of interest
income), minus (ii) Program Obligation Payments, all calculated for such period
for the Company and the Subsidiaries on a consolidated basis in accordance with
Generally Accepted Accounting Principles consistently applied. In the case of
any Sale or Acquisition by the Company or any Subsidiary during any period of
calculation, the definition of Operating Cash Flow shall, for purposes of
determining Total Leverage Ratio, Senior Leverage Ratio and
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Applicable Margin, be adjusted to give effect to such Sale or Acquisition, as if
such Sale or Acquisition occurred on the first day of such period, (x) in the
case of a Sale, by decreasing, if positive, or increasing, if negative,
Operating Cash Flow by the Operating Cash Flow in respect of such Sale during
such period or (y) in the case of an Acquisition, by increasing, if positive, or
decreasing, if negative, Operating Cash Flow by the Operating Cash Flow in
respect of such Acquisition during such period.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last Business Day of each March, June, September
and December.
"PBGC" means the Pension Benefit Guaranty Corporation, and its successors
and assigns.
"Permitted Acquisition" is defined in Section 6.15.
"Permitted Monterey Assignment" means the proposed assignment of the
Monterey Option by the Company to New Century Television, L.L.C. substantially
on the terms set forth in the term sheet previously delivered to the Managing
Agents and pursuant to documentation substantially in the form of the draft
documents previously delivered to the Managing Agents.
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, enterprise, trust, unincorporated organization,
government or any department or agency of any government.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or which is subject to the minimum funding standards under Section
412 of the Code as to which the Company or any member of the Controlled Group
may have any liability.
"Pledge Agreement" means the Pledge Agreement dated October 1, 1993
between the Company, as Pledgor, and First Trust of California, National
Association, as pledgee, as such agreement may be amended, restated, modified or
supplemented and in effect from time to time.
"Pledged Stock" shall have the meaning given such term in the Pledge
Agreement.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced by the Administrative Agent from time to time, changing when and as
said prime rate changes.
"Pro Rata Share" means, with respect to each Bank, the percentage amount
set forth opposite such Bank's name below:
Bank Percentage
---- ----------
Fleet 26%
First Union 26%
Key Bank 16%
The Long Term Credit Bank 16%
Union Bank 16%
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"Program Obligations" means the obligations of the Company and the
Subsidiaries with respect to the acquisition of the right to broadcast films and
other programming material, payable in a form other than barter.
"Program Obligation Payments" means, for any period of calculation, an
amount equal to the aggregate amount paid in cash by or on behalf of the Company
and the Subsidiaries during such period with respect to, or on account of,
Program Obligations.
"Purchasers" is defined in Section 12.3.1.
"Put and Call Agreement" means the Put and Call Agreement, in the form
attached as Exhibit B to the Contribution Agreement, dated as of February 4,
1994 between the shareholders named therein and KJR Radio, Inc.
"Rate Hedging Agreements" means (i) any and all agreements, devices or
arrangements designed to protect at least one of the parties thereto from the
fluctuations of interest rates, exchange rates or forward rates applicable to
such party's assets, liabilities or exchange transactions, including, but not
limited to, dollar-denominated or cross-currency interest rate exchange
agreements, forward currency exchange agreements, interest rate cap or collar
protection agreements, forward rate currency or interest rate options, puts and
warrants, and (ii) any and all cancellations, buybacks, reversals, terminations
or assignments of any of the foregoing.
"Rate Hedging Obligations" means any and all obligations of the Company,
whether absolute or contingent and howsoever and whensoever created, arising,
evidenced or acquired (including all renewals, extensions and modifications
thereof and substitutions therefor), under any and all Rate Hedging Agreements.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to the extension of credit by banks for the purpose of purchasing or
carrying margin stocks applicable to member banks of the Federal Reserve System.
"Reimbursement Obligations" means, at any time, the aggregate of the
obligations of the Company to the Issuer in respect of all unreimbursed payments
or disbursements made by the Issuer under or in respect of the Facility Letters
of Credit.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, PROVIDED, HOWEVER, that a failure to meet the
minimum funding standards of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043 (a) of ERISA or
Section 412 (d) of the Code.
"Required Banks" means at least two Banks in the aggregate holding at
least 66-2/3% of the aggregate unpaid principal amount of the outstanding Loans
and Facility Letter of Credit Obligations, or, if no Loans or
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Facility Letters of Credit are outstanding at least two Banks in the aggregate
holding at least 66-2/3% of the Aggregate Commitment.
"Reserve Requirement" means, with respect to any Eurodollar Interest
Period, the daily average during such Eurodollar Interest Period of the maximum
aggregate reserve requirement (including all basic, supplemental, marginal and
other reserves and taking into account any transitional adjustments or other
scheduled changes in reserve requirements during such Interest Period) which is
imposed on member banks of the Federal Reserve System under Regulation D on
Eurocurrency liabilities.
"Sale" means the sale, lease, transfer or other disposition (including,
without limitation, any disposition accomplished by way of a merger) of any
property, asset or business of the Company or any Subsidiary to any other
Person, other than a Subsidiary, other than any sale, lease, transfer or other
disposition contemplated by Section 6.12(ii)(a) or (b) with respect to which the
aggregate net proceeds realized by the Company or such Subsidiary shall equal
$250,000 or more on an annual basis.
"Secured Obligations" means, collectively, (i) the Obligations, (ii) all
Rate Hedging Obligations of the Company owing to one or more Banks and (iii) all
indebtedness, obligations and liabilities of the Company, direct or contingent,
owing to one or more Banks in connection with Facility Letters of Credit (or
applications therefor) which have been issued by one or more Banks.
"Senior Indebtedness" means all Indebtedness other than Subordinated
Indebtedness.
"Senior Leverage Ratio" means, as at any date of calculation, the ratio
of (i) Senior Indebtedness outstanding on such date of calculation (including
contingent obligations in respect of the Xxxxxx Guaranty Agreement but excluding
any other contingent obligations under Guaranties) to (ii) Operating Cash Flow
for the period consisting of the four consecutive fiscal quarters ending on or
most recently ended prior to such date of calculation.
"Senior Note Indenture" means that certain Indenture dated October 1,
1993 between the Company and First Bank National Association, in its capacity as
Indenture Trustee, governing the Senior Notes, as it may be amended or modified
and in effect from time to time.
"Senior Notes" means, collectively, the 10-3/4% Senior Notes in the
aggregate principal amount of $120,000,000 issued pursuant to the Senior Note
Indenture.
"Senior Subordinated Notes" means, collectively, (i) the 11.16% Senior
Subordinated Notes in the aggregate principal amount of $12,500,000 due
December 15, 1997 issued pursuant to the Series A and B Note Agreement, of which
$2,500,000 remains outstanding, (ii) the 11.20% Senior Subordinated Notes in the
aggregate principal amount of $12,500,000 due December 15, 1998 issued pursuant
to the Series A and B Note Agreement, of which $2,500,000 remains outstanding,
and (iii) the 10.48% Senior Subordinated Notes in the aggregate principal amount
of $30,000,000 due December 15, 2000, issued pursuant to the 1989 Note
Agreements, of which $30,000,000 remains outstanding, as such amounts may be
reduced from time to time.
"Single Employer Plan" means a Plan maintained by the Company or any
member of the Controlled Group for employees of the Company or any member of the
Controlled Group.
"Station" means any radio or television station owned and operated by the
Company or any Subsidiary, including, without limitation, the following: KGET-TV
(Bakersfield, California); KCBA-TV (Salinas,
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California); KKTV (Colorado Springs, Colorado); WIXT-TV (Syracuse, New York);
KVOS-TV (Bellingham, Washington); KFTY-TV (Santa Rosa, California); and upon any
consummation of the transactions contemplated by the Monterey Acquisition
Agreement, KCCN-TV (Monterey, California).
"Subordinated Indebtedness" means the Indebtedness evidenced by the
Senior Subordinated Notes and any and all other Indebtedness the payment of
which is subordinated to payment of the Secured Obligations to the written
satisfaction of the Required Banks.
"Subsidiary" means any corporation, or any similar entity, more than 50%
of the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by the Company or by one or more
Subsidiaries or by the Company and one or more Subsidiaries, or any similar
foreign business organization which is so owned or controlled. For purposes of
this Agreement and the other Loan Documents, New Century shall not be deemed to
be a Subsidiary.
"Total Leverage Ratio" means, as at any date of calculation, the ratio of
(a) the sum of (i) Indebtedness outstanding on such date of calculation
(including contingent obligations in respect of the Xxxxxx Guaranty Agreement
but excluding any other contingent obligations under Guaranties) plus (ii) the
amount of earned deferred compensation for which the Company or any Subsidiary
is liable on such date of calculation to (b) Operating Cash Flow for the period
consisting of the four consecutive fiscal quarters ending on or most recently
ended prior to such date of calculation.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Loan, its nature as a Floating Rate
Advance or Eurodollar Advance.
"Unfunded Liabilities" means, (i) in the case of Single Employer Plans,
the amount (if any) by which the present value of all vested nonforfeitable
benefits under such Plan exceeds the fair market value of all Plan assets
allocable to such benefits, all determined as of the then most recent valuation
date for such Plans, and (ii) in the case of Multiemployer Plans, the withdrawal
liability that would be incurred by the Controlled Group if all members of the
Controlled Group completely withdrew from all Multiemployer Plans.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"Utilization Date" means the initial date on which any proceeds of any
Facility B Loans are advanced to the Company.
"Wholly-Owned Subsidiary" of the Company means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by the Company or one or more wholly-owned
Subsidiaries of the Company, or by the Company and one or more wholly-owned
Subsidiaries of the Company, or (ii) any partnership, association, joint venture
or similar business organization 100% of the ownership interests having ordinary
voting power of which shall at the time be so owned or controlled.
1.2. GENERAL INTERPRETATION. For purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires, the terms
defined in this Article include the plural as well as the singular, the words
"hereof," "herein," "hereto," "in this Agreement" and other words of similar
import refer to this Agreement as a whole and not to any particular Article,
Section or other subdivision, and references in this Agreement to Articles,
Sections, and Exhibits refer to Articles and Sections of and Exhibits to this
Agreement.
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ARTICLE II
THE CREDITS
2.1. FACILITY A LOANS. Each Bank severally agrees, on the terms and
conditions set forth in this Agreement, to make Loans to the Company from time
to time prior to the Facility A Commitment Termination Date in amounts not to
exceed in the aggregate at any one time outstanding the amount of its Facility A
Commitment (the "Facility A Loans"). The Facility A Loans shall be made from
the several Banks ratably in proportion to the ratio that their respective
Facility A Commitments bear to the Aggregate Facility A Commitment. Subject to
the terms of this Agreement, the Company may borrow, repay and reborrow Facility
A Loans at any time prior to the Facility A Commitment Termination Date. The
Facility A Loans may be Floating Rate Advances or Eurodollar Advances, or a
combination thereof, determined in accordance with Sections 2.10 and 2.11.
2.2. FACILITY B LOANS. Each Bank severally agrees, on the terms and
conditions set forth in this Agreement (and provided that such Bank has received
a duly executed Allowed Acquisition Certificate as provided in Section 6.15
hereof), to make Loans to the Company from time to time prior to the Facility B
Commitment Termination Date in amounts not to exceed in the aggregate at any one
time outstanding the amount of its Facility B Commitment (the "Facility B
Loans"). Facility B Loans shall be made from the several Banks ratably in
proportion to the ratio that their respective Facility B Commitments bear to the
Aggregate Facility B Commitment. Subject to the terms of this Agreement, the
Company may borrow, repay and reborrow Facility B Loans at any time prior to the
Facility B Commitment Termination Date. The Facility B Loans may be Floating
Rate Advances or Eurodollar Advances, or a combination thereof, determined in
accordance with Sections 2.10 and 2.11.
2.3. FACILITY LETTERS OF CREDIT.
2.3.1. OBLIGATION TO ISSUE. The Issuer agrees, on the terms and
conditions set forth in this Agreement, to issue for the account of the Company
Facility Letters of Credit in accordance with this Section 2.3, from time to
time during the period commencing on the date hereof and ending on the Business
Day prior to the Facility A Commitment Termination Date.
2.3.2. TYPES AND AMOUNTS. The Issuer shall have no obligation
to:
(i) issue any Facility Letter of Credit if the aggregate
maximum amount then available for drawing under Facility
Letters of Credit issued by the Issuer, after giving
effect to the Facility Letter of Credit requested
hereunder, shall exceed any limit imposed by law or
regulation upon the Issuer;
(ii) issue any Facility Letter of Credit if, after giving
effect thereto, the aggregate amount of the Loans and the
Facility Letter of Credit Obligations would exceed the
Aggregate Facility A Commitment;
(iii) issue any Facility Letter of Credit which has an
expiration date (a) later than twelve (12) months after
the Issuance Date thereof or (b) after the Facility A
Commitment Termination Date; or
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(iv) issue any Facility Letter of Credit if, after giving
effect thereto, (a) the aggregate amount of Facility
Letters of Credit outstanding would exceed $7,500,000, or
(b) the number of Facility Letters of Credit outstanding
would exceed 8.
2.3.3. CONDITIONS. In addition to being subject to the
satisfaction of the conditions contained in Section 4.2, the obligation of the
Issuer to issue any Facility Letter of Credit is subject to the satisfaction in
full of the following conditions:
(i) the Company shall have delivered to the Issuer at such
times and in such manner as the Issuer may reasonably
prescribe such documents and materials as may be required
pursuant to the terms of the proposed Facility Letter of
Credit and the proposed Facility Letter of Credit shall
be reasonably satisfactory to the Issuer as to form and
content; and
(ii) as of the Issuance Date, no order, judgment or decree of
any court, arbitrator or governmental authority shall
purport by its terms to enjoin or restrain the Issuer
from issuing the proposed Facility Letter of Credit and
no law, rule or regulation applicable to any Bank and no
request or directive (whether or not having the force of
law) from any governmental authority with jurisdiction
over the Issuer shall prohibit or request that the Issuer
refrain from the issuance of Letters of Credit generally
or the issuance of such proposed Facility Letter of
Credit in particular.
2.3.4 PROCEDURE FOR ISSUANCE OF FACILITY LETTERS OF CREDIT.
(i) The Company shall give the Issuer twenty (20) days' prior
written notice of any requested issuance of a Facility
Letter of Credit (except that, in lieu of such written
notice, the Company may give the Issuer (x) notice of
such request by tested facsimile or other tested
arrangement satisfactory to the Issuer or (y) telephonic
notice of such request if confirmed in writing by
delivery to the Issuer (1) immediately of a telecopy of
the written notice required hereunder which has been
signed by an Authorized Officer or (2) promptly (but in
no event later than the requested time of issuance) of a
copy of the written notice required hereunder containing
the original signature of an Authorized Officer). Each
such notice (each a "Letter of Credit Request") shall be
irrevocable once the relevant Facility Letter of Credit
is issued and shall specify the stated amount of the
Facility Letter of Credit requested, the Issuance Date
(which day shall be a Business Day) of such requested
Facility Letter of Credit, the date on which such
requested Facility Letter of Credit is to expire (which
date shall be a Business Day and shall in no event be
later than the Facility A Commitment Termination Date),
the purpose for which such Facility Letter of Credit is
to be issued, and the Person for whose benefit the
requested Facility Letter of Credit is to be issued. At
the time such Letter of Credit Request is made, the
Company shall also provide the Issuer with a copy of the
form of the Facility Letter of Credit it is requesting be
issued. Such Letter of Credit Request, to be effective,
must be received by the Issuer not later than 3:00 p.m.
(New York time) on the last Business Day on which notice
can be given under this Section 2.3.4(i).
(ii) Subject to the terms and conditions of this Section 2.3.4
and provided that the applicable conditions set forth in
Sections 4.2 and 2.3.3 have been satisfied, the Issuer
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shall, on the requested Issuance Date, issue the
requested Facility Letter of Credit for the account of
the Company in accordance with the Issuer's usual and
customary business practices.
(iii) The Issuer shall not be obligated to extend or amend any
Facility Letter of Credit unless the requirements of this
Section 2.3.4 are met as if a new Facility Letter of
Credit were being requested and issued.
2.3.5. REIMBURSEMENT OBLIGATIONS.
(i) The Issuer shall promptly notify the Company of any draw
under a Facility Letter of Credit. The Company shall
reimburse the Issuer at the Issuer's address specified
pursuant to Section 13.1, or at any other Lending
Installation specified in writing by the Issuer to the
Company, for the ratable account of the Issuer and the
Banks, in immediately available funds, for draws under a
Facility Letter of Credit no later than the Business Day
next succeeding the date of payment by the Issuer by
10:00 a.m. (Seattle time) on the date when due, PROVIDED,
HOWEVER, that if the Issuer notifies the Company of such
a draw on or after the Business Day next succeeding the
date of payment by the Issuer, the Company shall be
required to reimburse the Issuer no later than 10:00 a.m.
(Seattle time) on the Business Day next succeeding the
date of such notification. Each payment delivered to the
Issuer for the account of any Bank shall be delivered
promptly by the Issuer to such Bank in the same type of
funds which the Issuer received at its address specified
pursuant to Section 13.1 or at any Lending Installation
specified in a notice received by the Issuer from such
Bank.
(ii) Any Reimbursement Obligation with respect to any Facility
Letter of Credit shall bear interest from the date of the
relevant draws under the relevant Facility Letter of
Credit at the interest rate for Floating Rate Advances
not paid at maturity as calculated in accordance with
Section 2.18.
(iii) Any action taken or omitted to be taken by the Issuer
under or in connection with any Facility Letter of
Credit, if taken or omitted in the absence of willful
misconduct or gross negligence, shall not put the Issuer
under any resulting liability to the Company. In
determining whether to pay under any Facility Letter of
Credit, the Issuer shall have no obligation relative to
the Company other than to confirm that any documents
required to be delivered under such Letter of Credit
appear to comply on their face with the requirements of
such Letter of Credit.
2.3.6 PAYMENT OF REIMBURSEMENT OBLIGATIONS. The Company agrees
to pay to the Issuer the amount of all Reimbursement Obligations, interest and
other amounts payable to the Issuer under or in connection with any Facility
Letter of Credit immediately when due, irrespective of any claim, set-off,
defense or other right which the Company or any Subsidiary may have at any time
against the Issuer or any other Person, under all circumstances, including
without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Loan Documents;
-16-
(ii) the existence of any claim, setoff, defense or other
right which the Company or any Subsidiary may have at any
time against a beneficiary named in a Facility Letter of
Credit or any transferee of any Facility Letter of Credit
(or any Person for whom any such transferee may be
acting), the Issuer, any Bank, or any other Person,
whether in connection with this Agreement, any Facility
Letter of Credit, the transactions contemplated herein or
any unrelated transactions (including any underlying
transactions between the Company or any Subsidiary and
the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented
under the Facility Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of
the Loan Documents; or
(v) the occurrence of any Default or Unmatured Default.
2.3.7. LETTER OF CREDIT PARTICIPATIONS. Each Bank severally
agrees to purchase from the Issuer a participation in each Facility Letter of
Credit issued by the Issuer in an amount equal to such Bank's Pro Rata Share
thereof and in the event of a drawing under any Facility Letter of Credit, to
make payment to the Issuer in the manner provided in Section 2.9.
2.3.8. COMPENSATION FOR FACILITY LETTERS OF CREDIT. The Company
shall pay to the Issuer, (i) upon the date of issuance and upon the date of a
renewal, $250 for each Facility Letter of Credit issued by the Issuer, and (ii)
on each Payment Date and upon the expiration date of any Facility Letter of
Credit, for distribution to the Banks based on their Pro Rata Share of the
Facility Letter of Credit Obligations, a fee equal to (A) the amount obtained by
dividing (x) the dollar amount obtained by multiplying the then-existing
Applicable Margin for Eurodollar Advances, determined in accordance with
Section 2.12 of this Agreement (expressed as a decimal), by the average daily
aggregate maximum amount available to be drawn under all outstanding Facility
Letters of Credit during such period, by (y) 365, MULTIPLIED by (B) the number
of actual days elapsed during such period.
2.4 PAYMENT OF LOANS. The Company shall repay the Loans: (i) in full,
on the Loan Repayment Date; (ii) in full, upon the occurrence of any Default and
acceleration of the Obligations by the Managing Agents pursuant to this
Agreement, or upon the occurrence of a Default under Sections 7.6 or 7.7 and the
automatic acceleration of the Obligations pursuant to Article VIII; (iii) in
part, immediately in the event that the total Facility A Loans plus Facility
Letters of Credit outstanding at any time under all of the Facility A Notes
exceeds the Aggregate Facility A Commitment at such time, in the amount of such
excess; and (iv) in part, immediately in the event that the total Facility B
Loans under all of the Facility B Notes exceeds the Aggregate Facility B
Commitment at such time, in the amount of such excess; and (v) in part,
immediately upon demand by any Bank, in the event that the aggregate amount of
Loans from any Bank exceeds such Bank's Commitment, in the amount of such
excess.
2.5. MANDATORY REDUCTIONS OF AGGREGATE COMMITMENT. On each of the
dates set forth below, the Aggregate Commitment shall be permanently reduced by
the percentage set forth below opposite such date set forth below (such
percentages applying pro rata between the Facility A Loans and the Facility B
Loans).
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Reduction Date Reduction Percentage
-------------- --------------------
March 31, 1998 3.75%
June 30, 1998 3.75%
September 30, 1998 3.75%
December 31, 1998 3.75%
March 31, 1999 6.25%
June 30, 1999 6.25%
September 30, 1999 6.25%
December 31, 1999 6.25%
March 31, 2000 6.25%
June 30, 2000 6.25%
September 30, 2000 6.25%
December 31, 2000 6.25%
March 31, 2001 5.00%
June 30, 2001 5.00%
September 30, 2001 5.00%
December 31, 2001 5.00%
March 31, 2002 15.00%
2.6. ADDITIONAL MANDATORY PRINCIPAL PAYMENTS; ADDITIONAL MANDATORY
REDUCTIONS OF AGGREGATE COMMITMENT.
(i) In addition to the mandatory payments required under
Section 2.4, the Company shall make the following mandatory
payments:
(a) Concurrently with the consummation of any Sale by
the Company or any Subsidiary, the Company shall
make a mandatory payment on the Loans outstanding in
an amount equal to the sum of (1) 100% of the net
cash proceeds realized in connection with such Sale,
and (2) a dollar amount equal to 25% of the
agreed-upon value of any equity securities received
by the Company as consideration in connection with
any such Sale.
(b) On or before April 30, 1997 and April 30, 1998, the
Company shall make a mandatory payment on the Loans
in an amount equal to 25% of the Excess Cash Flow,
if positive, for the fiscal years ending December 31,
1996 and December 31, 1997, respectively. Thereafter,
on or before April 30 of each year during the term
hereof, the Company shall make a mandatory payment on
the Loans outstanding in an amount equal to 50% of
Excess Cash Flow, if positive, for the most recently
ended fiscal year.
(ii) The mandatory payments made pursuant to clause (i) of this
Section 2.6 shall be applied to principal of the
outstanding Loans, pro rata between the Facility A Loans
and the Facility B Loans.
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(iii) Concurrently with each mandatory payment on the Loans made
pursuant to this Section 2.6, the Aggregate Commitment (and
accordingly the Facility A Commitment and the Facility B
Commitment, pro rata) shall be permanently reduced by a
like amount. Any and all reductions of the Aggregate
Commitment or mandatory prepayments required to be made
pursuant to clause (i)(a)(2) or clause (i)(b) of this
Section 2.6 shall be applied to the pro rata reduction of
the then remaining scheduled reductions of the Aggregate
Commitment, and any and all reductions of the Aggregate
Commitment or mandatory prepayments required to be made
pursuant to clause (i)(a)(1) of this Section 2.6 shall be
applied to the reduction of the then remaining scheduled
reductions of the Aggregate Commitment in the inverse order
of maturity.
2.7. OPTIONAL PRINCIPAL PAYMENTS. The Company may from time to time
pay all outstanding Floating Rate Advances or, in a minimum aggregate amount of
$500,000 or in integral multiples of $500,000 if in excess thereof, any portion
of the outstanding Floating Rate Advances, upon two Business Days' notice to the
Administrative Agent. Subject to Section 3.3, the Company may from time to time
pay all outstanding Eurodollar Advances or, in a minimum aggregate amount of
$500,000 (or any integral multiple of $500,000 if in excess thereof), any
portion of the outstanding Eurodollar Advances, upon three Business Days' prior
written notice to the Administrative Agent, PROVIDED, HOWEVER, that after giving
effect to such payment, each outstanding Eurodollar Advance shall be in a
minimum amount of $500,000.
2.8. FEES; COMMITMENT REDUCTIONS.
2.8.1 AGENT FEES. The Company agrees to pay to the Managing
Agents (for the benefit of such agents) and to the Administrative Agent (for the
benefit of such agent) the fees in such amounts as set forth in the Fee Letter,
which fees shall be due and payable to the Managing Agents and to the
Administrative Agent on the date of execution of this Agreement. Such fees
shall be fully earned when due and non-refundable when paid.
2.8.2 COMMITMENT FEE; VOLUNTARY REDUCTION OF AGGREGATE
COMMITMENT. The Company agrees to pay to the Administrative Agent for the
account of each Bank (a) a commitment fee of .50% per annum calculated on a year
consisting of 360 days based upon the actual number of days elapsed, on the
average daily unborrowed portion of such Bank's Facility A Commitment from the
date of this Agreement to and including the Facility A Commitment Termination
Date, payable on each Payment Date after the date of this Agreement and on the
Facility A Commitment Termination Date and (b) a commitment fee of .25% per
annum calculated on a year consisting of 360 days based upon the actual number
of days elapsed, on the aggregate amount of such Bank's Facility B Commitment
from the date of this Agreement to and including the Facility B Commitment
Termination Date, payable on each Payment Date after the date of this Agreement
and on the Facility B Commitment Termination Date; PROVIDED, HOWEVER, that in
the event any proceeds of any Facility B Loans are advanced to the Company, such
fee will be increased to .50% per annum, and in addition the Company will pay to
the Administrative Agent, for the benefit of the Banks, an additional one-time
fee of .25% of the Aggregate Facility B Commitment (calculated on a year
consisting of 360 days based on the actual number of days elapsed since the
Closing Date), which amount shall be due and payable on the Utilization Date.
The Company may permanently reduce the Aggregate Commitment in whole, or in part
ratably among the Banks in integral multiples of $500,000, upon at least ten
Business Days' written notice to the Administrative Agent, which notice shall
specify the amount of any such reduction; PROVIDED, HOWEVER, that the Aggregate
Commitment may not be reduced below the principal amount of the outstanding
Loans (and, specifically, the Aggregate Facility A Commitment may not be reduced
below the principal amount of the outstanding Facility A Loans and Facility
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Letters of Credit). If the Aggregate Commitment is terminated in its entirety,
all accrued commitment fees in respect of the Aggregate Commitment shall be
payable on the effective date of such termination.
2.9. METHOD OF BORROWING. Not later than 11:00 a.m. (New York time) on
each Borrowing Date, each Bank shall make available its Loan or Loans in funds
immediately available in New York to the Administrative Agent at its address
specified pursuant to Section 13. The Administrative Agent will make the funds
so received from the Banks available to the Company at the Administrative
Agent's aforesaid address.
2.10. BORROWING NOTICES: METHOD OF SELECTING TYPES AND EURODOLLAR
INTEREST PERIODS FOR LOANS. The Company may select the Type and, in the case of
Eurodollar Advances, the Eurodollar Interest Periods applicable to each Loan
from time to time. With respect to each Loan, the Company shall give the
Administrative Agent irrevocable notice (a "Borrowing Notice") not later than
11:00 a.m. (New York time) at least one Business Day before the Borrowing Date
of each Floating Rate Advance and three Business Days before the Borrowing Date
of each Eurodollar Advance, specifying:
(i) whether such Loan is a Facility A Loan or a Facility B Loan
(and if such Loan is a Facility B Loan, such Borrowing
Notice shall be accomplished by a Allowed Acquisition
Certificate, if applicable);
(ii) the Borrowing Date, which shall be a Business Day, of such
Loan;
(iii) the aggregate amount of such Loan;
(iv) the Type of Loan selected; and
(v) in the case of each Eurodollar Advance, the Eurodollar
Interest Period applicable thereto, subject to the
provisions of the definition of Eurodollar Interest Period.
The unpaid principal amount of each Eurodollar Advance shall bear interest from
and including the first day of the Eurodollar Interest Period applicable thereto
to (but not including) the last day of such Eurodollar Interest Period at the
Eurodollar Rate applicable to such Eurodollar Advance. Floating Rate Advances
shall bear interest at the Floating Rate and the interest rate on any Floating
Rate Advances shall change when and as the Alternate Base Rate changes. Each
Floating Rate Advance shall be in the minimum amount of $500,000 (and in
integral multiples of $500,000 if in excess thereof) and each Eurodollar Advance
shall be in the minimum amount of $500,000 (and in integral multiples of
$500,000 if in excess thereof); PROVIDED, HOWEVER, that any Floating Rate
Advance may be in the aggregate amount of the unused Aggregate Commitment, and
PROVIDED FURTHER that no more than six different Eurodollar Interest Periods may
exist at any one time. The Company may not select the Eurodollar Rate for a
Loan if there exists a Default or Unmatured Default hereunder. The Company
shall select Eurodollar Interest Periods with respect to Eurodollar Advances
which end on or prior to the Facility A Commitment Termination Date (in respect
of Facility A Loans bearing interest a the Eurodollar Rate) or after the
Facility B Commitment Termination Date (in respect of Facility B Loans bearing
interest at the Eurodollar Rate).
2.11. METHOD OF SELECTING TYPES AND EURODOLLAR INTEREST PERIODS FOR
CONVERSION AND CONTINUATION OF LOANS.
(i) The Company may elect from time to time, subject to the
provisions of Section 2.12, to convert all or any part of a
Floating Rate Advance into a Eurodollar Advance or a
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Eurodollar Advance into a Floating Rate Advance; PROVIDED,
HOWEVER, that any conversion of any Eurodollar Advance
shall be made on, and only on, the last day of the
Eurodollar Interest Period applicable thereto.
(ii) Floating Rate Advances shall continue as Floating Rate
Advances unless and until such Floating Rate Advances are
converted into Eurodollar Advances, Eurodollar Advances
shall continue as Eurodollar Advances until the end of the
then applicable Eurodollar Interest Period therefor, at
which time such Eurodollar Advance shall be automatically
converted into a Floating Rate Advance unless the Company
shall have given the Administrative Agent notice in
accordance with Section 2.11(iv) requesting that, at the
end of such Eurodollar Interest Period, such Eurodollar
Advance continue as a Eurodollar Advance for the same or
another Eurodollar Interest Period.
(iii) Notwithstanding anything to the contrary contained in
Section 2.11(i) or 2.11(ii), no Loan may be converted into
or continued as a Eurodollar Advance (except with the
consent of the Required Banks) when any Default or
Unmatured Default has occurred and is continuing.
(iv) The Company shall give the Administrative Agent irrevocable
notice (a "Conversion/Continuation Notice") of each
conversion of a Loan or continuation of a Eurodollar
Advance not later than 11:00 a.m. (New York time) at least
two Business Days, in the case of a conversion into a
Floating Rate Advance, or three Business Days, in the case
of a conversion into or continuation of a Eurodollar
Advance, prior to the date of the requested conversion or
continuation, specifying:
(a) the requested date (which shall be a Business Day)
of such conversion or continuation;
(b) the amount and Type of the Loan to be converted or
continued; and
(c) the amount and Type(s) of Loan(s) into which such
Loan is to be converted or continued and, in the
case of a conversion into or continuation of a
Eurodollar Advance, the duration of the Eurodollar
Interest Period applicable thereto.
2.12. APPLICABLE MARGIN. The Applicable Margin for Floating Rate
Advances and Eurodollar Advances shall be determined based on the Total Leverage
Ratio, as more specifically set forth below:
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Total Leverage Ratio Floating Rate Eurodollar Rate
-------------------- ------------- ---------------
Greater than or equal to 5.00 to 1.00 1.250% 2.500%
Less than 5.00 to 1.00 but greater
than or equal to 4.50 to 1.00 1.000% 2.250%
Less than 4.50 to 1.00 but greater
than or equal to 4.00 to 1.00 0.750% 2.000%
Less than 4.00 to 1.00 but greater
than or equal to 3.50 to 1.00 0.375% 1.625%
Less than 3.50 to 1.00 0.250% 1.500%
PROVIDED, HOWEVER, that until reset as provided below, the Applicable Margin
shall be 0.750% for Floating Rate Advances and 2.000% for Eurodollar Advances.
The Total Leverage Ratio shall be determined from the then most recent quarterly
or annual consolidated financial statements and Compliance Certificate delivered
by the Company pursuant to Sections 6.1(i), 6.1(ii) or 6.1(iii). The
adjustment, if any, to the Applicable Margin shall be effective on the fifth
Business Day after the delivery of such financial statements and Compliance
Certificate. In the event that the Company shall at any time fail to furnish to
the Banks the financial statements and Compliance Certificate required to be
delivered pursuant to Sections 6.1(i), 6.1(ii) or 6.1(iii), the maximum
Applicable Margin shall apply until such time as such financial statements and
Compliance Certificate are so delivered.
2.13. METHOD OF PAYMENT. All payments of principal, interest and fees
hereunder shall be made in immediately available funds to the Administrative
Agent at the Administrative Agent's address specified pursuant to Article XIII,
or at any other Lending Installation specified in writing by the Administrative
Agent to the Company, by 10:00 a.m. (Seattle time) on the date when due and
shall be made ratably among the Banks (except for payments of fees pursuant to
Section 10.15, which shall be made solely to the Administrative Agent) on or
before the time a principal payment is made on any of the Loans, the Company
shall inform the Administrative Agent as to the proportionate application of
such payment to the Floating Rate Advances and Eurodollar Advances. Each
payment delivered to the Administrative Agent for the account of any Bank shall
be delivered promptly by the Administrative Agent to such Bank in the same type
of funds which the Administrative Agent received at its address specified
pursuant to Section 13 or at any Lending Installation specified in a notice
received by the Administrative Agent from such Bank. The Administrative Agent
is hereby authorized to charge the account of the Company for each payment of
principal, interest and fees as it becomes due.
2.14. NOTES; TELEPHONIC NOTICES. The Loans shall be evidenced by the
Notes. Each Facility A Note is an amendment, restatement and renewal of a
series of notes executed and delivered in connection with the 1995 Credit
Agreement. Upon execution of and delivery of the Facility A Notes contemplated
by this Agreement, the notes amended, restated and renewed thereby will be
marked "Renewed and Reevidenced by a series of promissory notes dated September
30, 1996, which are substituted herefor in entirety." Each Bank is hereby
authorized to record the principal amount of each Loan and each repayment on the
schedule attached to the appropriate Note, PROVIDED, HOWEVER, that the failure
to so record shall not affect the Company's obligations under the Notes. The
Company hereby authorizes the Banks and the Managing Agents to extend, convert
and
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continue Loans based on telephonic notices made by any person or persons the
Managing Agents or any Bank in good faith believes to be acting on behalf of the
Company. The Company agrees to confirm to the Managing Agents promptly any
telephonic notice in writing signed by an Authorized Officer. If the written
confirmation differs in any material respect from the action taken by the
Managing Agents and the Banks, the records of the Managing Agents and the Banks
shall govern absent manifest error.
2.15. INTEREST PAYMENT DATES; INTEREST BASIS. Interest accrued on each
Floating Rate Advance shall be payable on each Payment Date hereafter, on any
date on which such Floating Rate Advance is prepaid, whether due to acceleration
or otherwise, and at maturity. Interest on Floating Rate Advances shall be
calculated for actual days elapsed on the basis of a 365-day year. Interest
accrued on each Eurodollar Advance shall be payable on the last day of its
applicable Eurodollar Interest Period and, in the case of a Eurodollar Interest
Period longer than three months, on the last day of each three-month interval
during such Eurodollar Interest Period, on any date on which such Eurodollar
Advance is prepaid, whether by acceleration or otherwise, and at maturity.
Interest on Eurodollar Advances and all commitment fees shall be calculated for
actual days elapsed on the basis of a 360-day year. Interest shall be payable
for the day a Loan is made but not for the day of any payment on the amount paid
if payment is received prior to 10:00 a.m. (Seattle time) at the place of
payment. If any payment of principal of or interest on a Loan shall become due
on a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and, in the case of a principal payment, such extension
of time shall be included in computing interest in connection with such payment.
2.16. NOTIFICATION OF LOANS, INTEREST RATES, PREPAYMENTS AND COMMITMENT
REDUCTIONS. Promptly after receipt thereof, the Administrative Agent will
notify each Bank of the contents of each commitment reduction notice, Borrowing
Notice, Conversion/Continuation Notice and repayment notice. The Administrative
Agent will notify each Bank of the interest rate applicable to each Eurodollar
Advance promptly upon determination of such interest rate and will give each
Bank prompt notice of each change in the Alternate Base Rate.
2.17. LENDING INSTALLATIONS. Each Bank may book its Loans at any
Lending Installation selected by such Bank and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Bank for
the benefit of such Lending Installation. Each Bank may, by written or telex
notice to the Administrative Agent and the Company, designate a Lending
Installation through which Loans are made and for whose account Loan payments
are to be made.
2.18. POST DEFAULT RATE. Notwithstanding any other provision of this
Agreement, after the occurrence and during the continuance of a Default, the
Loans and any Reimbursement Obligations shall bear interest until paid in full
at the following rates per annum:
(i) Floating Rate Advances shall bear interest at a rate equal
to the Floating Rate plus 2% per annum;
(ii) Eurodollar Advances shall bear interest, (a) for the
remainder of the Eurodollar Interest Period at the higher
of (1) the rate otherwise in effect for the existing
Eurodollar Interest Period plus 2% per annum and (2) the
Floating Rate plus 2% per annum, and (b) thereafter, at a
rate equal to the Floating Rate plus 2% per annum; and
(iii) Reimbursement Obligations shall bear interest at a rate
equal to the Floating Rate plus 2% per annum.
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2.19. PREPAYMENT OF LOANS AND CASH COLLATERALIZATION OF FACILITY LETTERS
OF CREDIT UPON CHANGE IN CONTROL. If a Change in Control shall occur, the
Required Banks shall have the right, by written notice given to the Company, to
terminate the obligations of the Banks to make Loans and to demand that the
Company prepay the Notes in full in which case the Notes will become due and
payable, and the Issuer shall have the right, by written notice given to the
Company, to terminate its obligations to issue Facility Letters of Credit
hereunder and to demand that the Company deposit cash collateral with the
Administrative Agent in an amount equal to 100% of the then outstanding Facility
Letters of Credit. Such cash collateral shall be deposited and held by the
Administrative Agent for the benefit of the Issuer in a non-interest bearing
collateral account to secure payment of the Facility Letter of Credit
Obligations. Such notice may be given not earlier than 20 days after and not
later than 90 days after the first to occur of (i) receipt by the Administrative
Agent of written notice from the Company of a Change in Control or (ii) the date
on which the Administrative Agent or any Bank, having otherwise obtained actual
knowledge of a Change in Control, notifies the Company thereof.
The Company shall prepay the Notes and deposit such cash collateral on
the date specified by the Company (the "Specified Payment Date") in a written
notice given to the Administrative Agent not less than 20 days prior to the
Specified Payment Date. The Specified Payment Date shall not be later than 90
days after the earlier of (i) the date on which the Required Banks sent the
notice to the Company demanding prepayment or (ii) the date on which the Issuer
sent the notice to the Company demanding cash collateral. Notwithstanding the
foregoing provisions and whether or not the notice provisions above are
satisfied, if as a result of a Change in Control the Company is required to
prepay other Indebtedness, the Company will prepay the Notes and deposit such
cash collateral prior to or simultaneously with the prepayment of such other
Senior Indebtedness and prior to the prepayment of such other Subordinated
Indebtedness.
2.20. NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. Unless the
Company or a Bank, as the case may be, notifies the Administrative Agent prior
to the date on which it is scheduled to make payment to the Administrative Agent
of (i) in the case of a Bank, the proceeds of a Loan or (ii) in the case of the
Company, a payment of principal, interest or fees to the Administrative Agent
for the account of the Banks, that it does not intend to make such payment, the
Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption.
If such Bank or the Company, as the case may be, has not in fact made such
payment to the Administrative Agent, the recipient of such payment shall, on
demand by the Administrative Agent, repay to the Administrative Agent the amount
so made available together with interest thereon in respect of each day during
the period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Bank, the
Federal Funds Effective Rate for such day or (ii) in the case of payment by the
Company, the interest rate applicable to the relevant Loan.
2.21. WITHHOLDING TAX EXEMPTION. At least five Business Days prior to
the first date on which interest or fees are payable hereunder for the account
of any Bank, each Bank that is not incorporated under the laws of the United
States of America, or a state thereof, agrees that it will deliver to each of
the Company and the Administrative Agent two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224, certifying in either case
that such Bank is entitled to receive payments under this Agreement and the
Notes without deduction or withholding of any United States federal income
taxes. Each Bank which so delivers a Form 1001 or 4224 further undertakes to
deliver to each of the Company and the Administrative Agent two additional
copies of such form (or a successor form) on or before the date that such form
expires (currently, three successive calendar years for Form 1001 and one
calendar year for Form 4224) or becomes obsolete or after the occurrence of any
event requiring a change in the most recent forms so delivered by it, and such
amendments
-24-
thereto or extensions or renewals thereof as may be reasonably requested by the
Company or the Administrative Agent, in each case certifying that such Bank is
entitled to receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes, unless an
event (including, without limitation, any change in treaty, law or regulation)
has occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Bank from duly completing and delivering any such form with respect to it and
such Bank advises the Company and the Administrative Agent that it is not
capable of receiving payments without any deduction or withholding of United
States federal income tax.
2.22. COLLATERAL SECURITY; FURTHER ASSISTANCE.
(i) The Secured Obligations shall be secured by a Lien on and
security interest in the Pledged Stock under the terms and
provisions contained in the Pledge Agreement.
(ii) In connection with any exercise by the Managing Agents or
any Bank of its right and remedies under the Loan
Documents, it may be necessary to obtain the prior consent
or approval of certain Persons, including, without
limitation, professional sports associations, the FCC and
other Governmental Authorities. Upon the exercise by the
Managing Agents, any Bank or the Collateral Agent of any
power, right, privilege or remedy pursuant to any Loan
Document which requires any Authorization, the Company will
execute and deliver, or will cause the execution and
delivery of all applications, certificates, instruments and
other documents and papers that the Managing Agents, such
Bank or the Collateral Agent may be required to obtain for
such Authorization. Without limiting the generality of the
foregoing, the Company will use its best efforts to obtain
from the appropriate Persons the necessary consents and
approvals, if any: (a) for the transfer, if required for
the effectuation of clause (b) below, to the Managing
Agents, the Banks or the Collateral Agent upon the
occurrence of a Default, of any Authorization in respect of
any Subsidiary's operations; (b) for the effectuation of
any sale or sales of Pledged Stock upon the occurrence of a
Default; and (c) for the exercise of any other right or
remedy of the Managing Agents, any Bank or the Collateral
Agent under any Loan Document. The Managing Agents and the
Banks will cooperate with the Company in preparing the
filing with the FCC and any other Persons of all requisite
applications required to be obtained by the Company under
this Section 2.22(ii).
ARTICLE III
CHANGE IN CIRCUMSTANCES; INDEMNIFICATION
3.1. YIELD PROTECTION. If at any time on or after the Closing Date,
the adoption of any law or the application of any governmental or
quasi-governmental rule, regulation, policy, guideline or directive, whether or
not having the force of law, or any change therein, or any change in the
interpretation or administration thereof, or compliance of any Bank with any
such law, rule, regulation, policy, guideline or directive,
(i) subjects any Bank or any applicable Lending Installation to
any tax, duty, charge or withholding on or from payments
due from the Company (excluding federal taxation of the
overall net income of any Bank), or changes the basis of
taxation of payments
-25-
to any Bank in respect of its Loans or participations in or
issuance of any Facility Letters of Credit or other amounts
due it hereunder, or
(ii) imposes or increases or deems applicable any reserve (other
than reserves included in the Reserve Requirement with
respect to Eurodollar Advances), special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Bank or any
applicable Lending Installation, or
(iii) imposes any other condition the result of which is to
increase the cost to any Bank or any applicable Lending
Installation of making, funding or maintaining U.S. Dollar
loans or letters of credit or reduces any amount receivable
by any Bank or any applicable Lending Installation in
connection with U.S. Dollar loans or letters of credit, or
requires any Bank or any applicable Lending Installation to
make any payment calculated by reference to the amount of
loans held or interest received by it or letters of credit
issued by it or participated in by it, by an amount deemed
material by such Bank,
then, within 15 days of demand by such Bank, the Company shall pay such Bank
that portion of such increased expense incurred or the amount of reduction in an
amount received which such Bank determines in good faith is attributable to
making, funding and maintaining its Loans, its participations in or issuance of
Facility Letters of Credit and its Commitment (or any portion thereof).
3.2. AVAILABILITY OF INTEREST RATE. If any Bank determines in good
faith that maintenance of its Eurodollar Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation, or directive,
whether or not having the force of law, or if the Required Banks determine in
good faith that (i) deposits of a type and maturity appropriate to match fund
Eurodollar Advances are not available or (ii) the Base Eurodollar Rate does not
accurately reflect the cost of making or maintaining a Eurodollar Advance, then
the Administrative Agent shall suspend the availability of the Eurodollar Rate
and require any Eurodollar Advances to be converted to Floating Rate Advances.
3.3. FAILURE TO PAY OR BORROW ON CERTAIN DATES. If any payment of a
Eurodollar Advance occurs on a date which is not the last day of the applicable
Eurodollar Interest Period (whether due to a mandatory payment, an optional
payment, or otherwise), or a Eurodollar Advance is not made on the date
specified by the Company for any reason other than default by the Banks, the
Company will indemnify each Bank for any loss or cost incurred by it resulting
therefrom, including, without limitation, any loss or cost in liquidating or
employing deposits or contractual undertakings acquired to fund or maintain such
Eurodollar Advance.
3.4. CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Bank determines in
good faith the amount of capital required or expected to be maintained by such
Bank, any Lending Installation of such Bank or any corporation controlling such
Bank is increased as a result of a Change, then, within 15 days of demand by
such Bank, the Company shall pay such Bank the amount necessary to compensate
for any shortfall in the rate of return on the portion of such increased capital
which such Bank determines in good faith is attributable to this Agreement, its
Loans or its obligation to make Loans hereunder (after taking into account such
Bank's policies as to capital adequacy). "Change" means (i) any change after
the date of this Agreement in the Risk-Based Capital Guidelines or (ii) any
adoption of or change in any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive (whether or not
having the force of law) after the date of this Agreement which affects the
amount of capital required or expected to be maintained by any Bank or any
Lending Installation or any corporation controlling any Bank. "Risk-Based
Capital Guidelines" means (i) the
-26-
risk-based capital guidelines in effect in the United States on the date of
this Agreement, including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled "International Convergence of Capital
Measurements and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
3.5. BANK CERTIFICATES; SURVIVAL OF INDEMNITY. To the extent
reasonably possible, each Bank shall designate an alternate Lending Installation
with respect to its Eurodollar Advances to reduce any liability of the Company
to such Bank under Section 3.1 or to avoid the unavailability of the Eurodollar
Rate under Section 3.2, so long as such designation is not, in the sole opinion
of such Bank, disadvantageous to such Bank. A certificate of a Bank as to the
amount due under Section 3.1, 3.3 or 3.4 shall be final, conclusive and binding
on the Company in the absence of manifest error. Determination of amounts
payable under such Sections in connection with a Eurodollar Advance shall be
calculated as though each Bank funded its portion of the Eurodollar Advance
through the purchase of a deposit of the type and maturity corresponding to the
deposit used as a reference in determining the Eurodollar Rate applicable to
such Eurodollar Advance. Unless otherwise provided herein, the amount specified
in the certificate shall be payable on demand after receipt by the Company of
the certificate. The obligations under Sections 3.1, 3.3 and 3.4 shall survive
payment of the Obligations and termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. INITIAL CREDIT EXTENSION. The Banks shall not be required to make
the initial Loans hereunder or issue the initial Facility Letter of Credit,
unless:
(i) The Company has furnished to the Documentation Agent, with
sufficient copies for the Banks, the following, each dated
or dated as of the Closing Date (or such earlier date as
shall be acceptable to the Banks):
(a) Copies of the articles of incorporation, together
with all amendments thereto, and certificates of
good standing in respect of the Company certified by
the appropriate governmental officer in the
jurisdiction of incorporation of the Company.
(b) Copies, certified on the Closing Date by the
Secretary or an Assistant Secretary of the Company,
of its Bylaws, Board of Directors' resolutions (and
resolutions of other bodies, if any are deemed
necessary by counsel for the Documentation Agent)
authorizing the execution, delivery and performance
of this Agreement and the other Loan Documents.
(c) An incumbency certificate, dated the Closing Date,
executed by the Secretary or an Assistant Secretary
of the Company, which shall identify by name and
title and bear the signature of the officers of the
Company authorized to sign this Agreement and the
other Loan Documents and to make borrowings
hereunder. The Banks shall be entitled to rely on
such incumbency certificates for all purposes
hereunder until informed of any change in writing by
the Company.
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(d) A copy of the Pledge Agreement, together with copies
of (1) stock certificates representing the Pledged
Stock and (2) stock powers duly executed in blank.
(e) A written opinion of Xxxxxx & Xxxx, corporate
counsel to the Company, dated the Closing Date,
addressed to the Banks in substantially the form of
Exhibit "B-1" hereto.
(f) A written opinion of Xxxxx, Xxxxxxx, Xxxxxxx, Xxxxxx
& Xxxxx, general and FCC counsel to the Company,
dated the Closing Date, addressed to the Banks in
substantially the form of Exhibit "B-2" hereto.
(g) A certificate, dated the Closing Date, signed by the
Chief Financial Officer of the Company stating that
on said date, the Company is not engaged in any
litigation that could have a Material Adverse Effect
on the Company, no Default or Unmatured Default has
occurred and is continuing and, since the date of
the most recent financial statements delivered to
the Banks, no material adverse change shall have
occurred in the condition of the Company's
operations, properties, business or prospects of the
Company and its Subsidiaries, taken as a whole.
(h) A Facility A Note and a Facility B Note payable to
the order of each Bank.
(i) Copies of the Senior Note Indenture, as in effect on
the Closing Date, certified as true and correct by
an Authorized Officer.
(j) A Compliance Certificate, dated the Closing Date,
indicating that the Company is in compliance with
the covenants set forth in this Agreement after
giving effect to the initial Loans.
(k) Evidence satisfactory to the Banks and their
respective counsel that the Company shall have made
all filings and registrations or obtained all
Authorizations which are or may be prerequisites to
the validity, enforceability or non-voidability of
the Loan Documents or the pledge of the capital
stock of the Subsidiaries delivered pursuant to the
Pledge Agreement.
(l) Such other documents as any Bank may reasonably
request.
(ii) The Company shall have paid the fees required pursuant to
Section 2.8.1.
(iii) The Company shall have reimbursed the Managing Agents for
all expenses due and payable hereunder.
4.2. EACH CREDIT EXTENSION. The Banks shall not be required to make
any Loan and the Issuer shall not be required to issue any Facility Letter of
Credit unless on the applicable Borrowing Date or Issuance Date (including,
without limitation, the initial Borrowing Date or Issuance Date):
(i) After giving effect to the Loan or Facility Letter of
Credit, there exists no Default or Unmatured Default.
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(ii) After giving effect to the Loan or Facility Letter of
Credit, the representations and warranties contained in
Section 5 are true and correct as if made on and as of the
Borrowing Date or Issuance Date, as applicable, except for
changes in the Exhibits or Schedules hereto reflecting
transactions permitted by this Agreement.
(iii) All legal matters incident to the borrowing or issuance, as
applicable, shall be satisfactory to the Banks and their
counsel.
Each Borrowing Notice and each Letter of Credit Request shall constitute
a representation and warranty that the conditions set forth in Sections 4.2 (i)
and (ii) have been satisfied. Any Bank may require a duly completed Compliance
Certificate as a condition to the making of a Loan or the issuance of a Facility
Letter of Credit, which Compliance Certificate shall contain calculations based
upon the financial information most recently furnished pursuant to Section
6.1(i) or 6.1(ii).
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Banks, as of the Closing Date
and each Borrowing Date, that:
5.1. CORPORATE EXISTENCE AND STANDING; CAPITAL STRUCTURE. Each of the
Company and the Subsidiaries is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted, except for any jurisdictions
where the failure to be in good standing or to have such authority will not
result in any material liabilities or have a Material Adverse Effect. There are
no authorized, issued or outstanding shares of capital stock of the Company or
any Subsidiary, or rights or options to acquire any shares of such capital
stock, except as set forth in Schedule "4" hereto.
5.2. AUTHORIZATION AND VALIDITY. The Company has the corporate power
and authority and legal right to execute and deliver the Loan Documents to which
it is a party and perform its obligations thereunder. The execution and
delivery of the Loan Documents by the Company and the performance of its
respective obligations thereunder have been duly authorized by proper corporate
proceedings and each Loan Document constitutes the valid and binding obligation
of the Company and is enforceable against the Company in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally.
5.3. NO CONFLICT; AUTHORIZATIONS. Neither the execution and delivery
by the Company of the Loan Documents, the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on the Company or the Company's articles of incorporation or by-laws or
the provisions of any indenture, instrument or agreement to which the Company is
a party or is subject, or by which it, or its property, is bound, or conflict
with or constitute a default thereunder, or result in the creation or imposition
of any Lien pursuant to the terms of any such indenture, instrument or
agreement. No Authorization is required to authorize, or is required in
connection with the execution, delivery and performance of, or the legality,
validity, binding effect or enforceability of, any of the Loan Documents.
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5.4. FINANCIAL STATEMENTS. The December 31, 1995 audited and the June
30, 1996, unaudited consolidated financial statements of the Company and the
Subsidiaries heretofore delivered to the Banks were prepared in accordance with
Generally Accepted Accounting Principles in effect on the respective dates such
statements were prepared and fairly present the consolidated financial condition
and operations of the Company and the Subsidiaries at such dates and the
consolidated results of their operations for the respective periods then ended.
5.5. MATERIAL ADVERSE CHANGE. There has been no material adverse
change in the business, properties, prospects, condition (financial or
otherwise) or results of operations of the Company and the Subsidiaries, taken
as a whole, since the date of the most recent consolidated financial statements
of the Company delivered to the Banks.
5.6. TAXES. The Company and the Subsidiaries have filed all United
States federal tax returns and all other tax returns which are required to be
filed and have paid all taxes due pursuant to said returns or pursuant to any
assessment received by the Company or any Subsidiary, except such taxes, if any,
as are being contested in good faith and as to which adequate reserves have been
provided. The United States income tax returns of the Company and the
Subsidiaries have been audited by the Internal Revenue Service through the
fiscal year ended December 31, 1985. No tax liens have been filed and no claims
are being asserted with respect to any such taxes. The charges, accruals and
reserves on the books of the Company and the Subsidiaries in respect of any
taxes or other governmental charges are adequate.
5.7. LITIGATION. Except as previously disclosed to the Banks, there is
no litigation or proceeding pending or, to the knowledge of any of their
officers, threatened against the Company or any Subsidiary which might have a
Material Adverse Effect.
5.8. SUBSIDIARIES. Schedule "1" hereto contains an accurate list of
all of the presently existing Subsidiaries, setting forth their respective
jurisdictions of incorporation and the percentage of their respective capital
stock owned by the Company or other Subsidiaries. All of the issued and
outstanding shares of capital stock of the Subsidiaries have been duly
authorized and issued and are fully paid and non-assessable.
5.9. ERISA. The Unfunded Liabilities of all Plans do not in the
aggregate exceed $700,000. Each Plan complies in all material respects with all
applicable requirements of law and regulations, no Reportable Event has occurred
with respect to any Plan, neither the Company nor any other members of the
Controlled Group has withdrawn from any Plan or initiated steps to do so, and no
steps have been taken to terminate any Plan.
5.10. DEFAULTS. No Default or Unmatured Default has occurred and is
continuing.
5.11. ACCURACY OF INFORMATION. No information, exhibit or report
furnished by the Company or any Subsidiary to the Managing Agents or to any Bank
in connection with the negotiation of the Loan Documents contained any material
misstatement of fact or omitted to state a material fact or any fact necessary
to make the statements contained therein not misleading.
5.12. REGULATION U. Margin stock (as defined in Regulation U)
constitutes less than 25% of those assets of the Company and the Subsidiaries
which are subject to any limitation on sale, pledge or other restriction
hereunder.
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5.13. MATERIAL AGREEMENTS. Neither the Company nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction materially and adversely affecting its business,
properties or assets, operations or condition (financial or otherwise). Neither
the Company nor any Subsidiary is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in (i)
any agreement to which it is a party, which default might have a Material
Adverse Effect or (ii) any agreement or instrument evidencing or governing
Indebtedness of the Company or any Subsidiary, which default might have a
Material Adverse Effect.
5.14. SENIOR AND SUBORDINATED INDEBTEDNESS. The Senior Notes are pari
pasu with the Secured Obligations and there is no Indebtedness that is senior in
priority or pari pasu to the Senior Notes and the Secured Obligations, other
than certain permitted indebtedness secured by liens permitted pursuant to
Section 6.18. The Secured Obligations constitute Senior Indebtedness which is
entitled to the benefits of the subordination provisions of all outstanding
Subordinated Indebtedness.
5.15. COMPLIANCE WITH LAWS. The Company and the Subsidiaries have
complied in all material respects with all applicable statutes, rules,
regulations, orders and restrictions of any domestic or foreign government or
any instrumentality or agency thereof, having jurisdiction over the conduct of
their respective businesses or the ownership of their respective properties.
Neither the Company nor any Subsidiary has received any notice to the effect
that its operations are not in material compliance with any of the requirements
of applicable federal, state and local environmental, health and safety statutes
and regulations or the subject of any federal or state investigation evaluating
whether any remedial action is needed to respond to a release of any toxic or
hazardous waste or substance into the environment, which non-compliance or
remedial action might have a Material Adverse Effect.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Banks shall
otherwise consent in writing:
6.1. FINANCIAL REPORTING. The Company will maintain, for itself and
each Subsidiary, a system of accounting established and administered in
accordance with Generally Accepted Accounting Principles, and furnish to the
Banks:
(i) Within 90 days after the close of each of its fiscal years,
an unqualified audit report certified by independent
certified public accountants, acceptable to the Banks,
prepared in accordance with Generally Accepted Accounting
Principles on a consolidated basis for itself and the
Subsidiaries, including balance sheets as of the end of
such period, related profit and loss and reconciliation of
surplus statements, and a statement of changes in financial
position, accompanied by any management letter prepared by
said accountants and by a certificate of said accountants
that, in the course of their examination necessary for
their certification of the foregoing, they have obtained no
knowledge of any Default or Unmatured Default, or if, in
the opinion of such accountants, any Default or Unmatured
Default shall exist, stating the nature and status thereof.
(ii) Within 45 days after the close of each of the first three
fiscal quarters of each of its fiscal years, for itself and
the Subsidiaries, (a) consolidated unaudited balance sheets
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as at the close of each such period and consolidated
statements of profit and loss and reconciliation of surplus
statements and a consolidated statement of changes in
financial position from the beginning of such fiscal year
to the end of such period and for the corresponding period
in the preceding fiscal year and (b) for itself and its
operating divisions, the following statements set forth in
comparative form: (1) consolidating statements of profit
and loss for such quarter and for the period from the
beginning of such fiscal year to the end of such quarter,
and (2) consolidating statements of profit and loss for the
corresponding periods in the preceding fiscal year.
(iii) Together with the financial statements required hereunder,
a Compliance Certificate.
(iv) As soon as possible and in any event within 60 days after
the beginning of each of its fiscal years, a copy of the
annual budget for the Company and its operating divisions
for such fiscal year.
(v) Within 180 days after the close of each fiscal year, a
statement of the Unfunded Liabilities of each Plan, if any,
certified as correct by an actuary enrolled under ERISA.
(vi) As soon as possible and in any event within 10 days after
the Company knows that any Reportable Event has occurred
with respect to any Plan, a statement, signed by the Chief
Financial Officer of the Company, describing said
Reportable Event and the action which the Company proposes
to take with respect thereto.
(vii) As soon as possible and in any event within 10 days after
receipt by the Company, a copy of (a) any notice or claim
to the effect that the Company or any Subsidiary is or may
be liable to any Person as a result of the release by the
Company, any of the Subsidiaries, or any other Person of
any toxic or hazardous waste or substance into the
environment, and (b) any notice alleging any violation of
any federal, state or local environmental, health or safety
law or regulation by the Company or any Subsidiary, which
might, in either case, have a Material Adverse Effect.
(viii) Promptly upon the furnishing thereof to the shareholders of
the Company, copies of all financial statements, reports
and proxy statements so furnished.
(ix) Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or
other regular reports which the Company or any Subsidiary
files with the Securities and Exchange Commission.
(x) As soon as possible and in any event within five days after
the receipt by the Company or any Subsidiary from the FCC
or any other Governmental Authority or filing or receipt
thereof by the Company or any Subsidiary, (a) a copy of any
order or notice of the FCC or any other Governmental
Authority or any court of competent jurisdiction which
designates any material Authorization of the Company or any
Subsidiary, or any application therefor, for a hearing, or
which refuses renewal or extension of, or revokes,
materially modifies, terminates or suspends any
Authorization now or hereafter held by the Company or any
Subsidiary which is required to construct or operate any
Station or its other businesses in compliance with all
applicable laws and regulations, (b) a copy of any
competing application filed with respect to any
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Authorization of the Company or any Subsidiary, or any
citation, notice of violation or order to show cause issued
by the FCC or any Governmental Authority with respect to
the Company or any Subsidiary which is available to the
Company or any Subsidiary and (c) a copy of any notice or
application by the Company or any Subsidiary requesting
authority to or notifying the FCC of its intent to cease
broadcasting on any broadcast station for any period in
excess of 10 days.
(xi) Promptly upon the distribution thereof copies of any
reports, certificates, notices and other information
furnished to the holders of Subordinated Indebtedness.
(xii) Contemporaneously with each Sale, a Compliance Certificate.
(xiii) Such other information (including non-financial
information) as the Managing Agents or any Bank may from
time to time reasonably request.
6.2. USE OF PROCEEDS. The Company will use the proceeds of the Loans
to finance acquisitions (including Permitted Acquisitions), finance the
transactions contemplated by the Monterey Documents, refinance existing
indebtedness, finance capital expenditures, provide working capital and for
general corporate purposes. The Company will not, nor will it permit any
Subsidiary to, use any of the proceeds of the Loan (i) to purchase or carry any
"margin stock" (as defined in Regulation U) or (ii) to acquire any security in
any transaction which is subject to Sections 13 and 14 of the Securities
Exchange Act of 1934.
6.3. NOTICE OF DEFAULT. The Company will, and will cause each
Subsidiary to, give prompt notice in writing to the Banks of (i) the occurrence
of any Default or Unmatured Default and of any other development, financial or
otherwise, which might have a Material Adverse Effect, or (ii) any federal,
state or local statute, regulation or ordinance or judicial or administrative
order limiting or controlling the operations of the Company or any Subsidiary
which has been issued or adopted hereafter and which is of material adverse
importance or effect in relation to the operation of the Company or any
Subsidiary.
6.4. CONDUCT OF BUSINESS; MAINTENANCE OF AUTHORIZATIONS. The Company
will, and will cause each Subsidiary to, (i) carry on and conduct its business
in substantially the same manner and in substantially the same fields of
enterprise as it is presently conducted; (ii) do all things necessary to remain
duly incorporated, validly existing and in good standing as a domestic
corporation in its jurisdiction of incorporation and maintain all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted; and (iii) do all things necessary to renew, extend and continue in
effect all Authorizations which may at any time and from time to time be
necessary to operate any Station or any of its other businesses in compliance
with all applicable laws and regulations where the failure to so renew, extend
or continue in effect or to so comply could have a Material Adverse Effect.
6.5. TAXES. The Company will, and will cause each Subsidiary to, pay
when due all taxes, assessments and governmental charges and levies upon it or
its income, profits or property, except those which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves
have been set aside.
6.6. INSURANCE. The Company will, and will cause each Subsidiary to,
maintain insurance in such amounts and covering such risks as is consistent with
sound business practice.
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6.7. COMPLIANCE WITH LAWS. The Company will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject, including,
without limitation, all rules and regulations promulgated by the FCC or any
other Governmental Authority and those relating to environmental, health and
safety protection, where the failure to so comply might, singly or in the
aggregate, have a Material Adverse Effect.
6.8. MAINTENANCE OF PROPERTIES. The Company will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its properties in good repair, working order and condition, and make all
necessary and proper repairs, renewals and replacements so that its business
carried on in connection therewith may be properly conducted at all times.
6.9. INSPECTION. The Company will, and will cause each Subsidiary to,
permit the Banks, by their representatives and agents, to inspect any of the
properties, corporate books and financial records of the Company and each
Subsidiary, to examine and make copies of the books of accounts and other
financial records of the Company and each Subsidiary, and to discuss the
affairs, finances and accounts of the Company and each Subsidiary with, and to
be advised as to the same by, their respective officers at such reasonable times
and intervals as the Banks may designate.
6.10. DIVIDENDS. The Company will not, nor will it permit any
Subsidiary to, declare or pay any dividends on its capital stock (other than
dividends payable in its own common stock) or redeem, repurchase or otherwise
acquire or retire any of its capital stock at any time outstanding or enter into
an agreement obligating it to do any of the foregoing, except (i) any
Wholly-Owned Subsidiary may declare and pay dividends to the Company or any
Wholly-Owned Subsidiary and (ii) provided that the Total Leverage Ratio is less
than 5.00 to 1.0, the Company may pay dividends or make distributions in an
amount not to exceed 20% of Excess Cash Flow for such fiscal year.
Notwithstanding any provision contained in this Section 6.10, the Company may
pay dividends in an aggregate amount of up to $1,000,000 in each fiscal year
provided no Default or Unmatured Default has occurred or is continuing or is
projected to occur after giving effect to such payment.
6.11. INDEBTEDNESS. The Company will not, nor will it permit any
Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(i) The Loans and the Facility Letters of Credit.
(ii) Capitalized Lease Obligations not to exceed $10,000,000 in
the aggregate at any one time outstanding.
(iii) Intercompany advances which may be created from time to
time in connection with the customary usages of the demand
deposit accounts maintained by the Company and the
Subsidiaries in the ordinary course of business; PROVIDED,
HOWEVER, that no intercompany advances may be made or
incurred between the Company and New Century or any
Subsidiary and New Century except to fund transactions
contemplated by the Put and Call Agreement or Sections
3(g)(i) or (ii) of the Amended Partnership Agreement.
(iv) The Senior Subordinated Notes.
(v) Guaranties permitted under Section 6.17.
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(vi) The Senior Notes.
(vii) Indebtedness of T.C. Aviation, Inc. to Fleet Capital
Leasing pursuant to a certain aircraft lease dated as of
July 11, 1996.
(viii) Other Indebtedness existing on the date hereof and
described in Schedule "2" hereto.
6.12. MERGER; SALE OF ASSETS.
(i) The Company will not, nor will it permit any Subsidiary to,
merge or consolidate with or into any other Person, except
any Subsidiary may merge into any other Subsidiary.
(ii) The Company will not, nor will it permit any Subsidiary to,
sell, lease, transfer or otherwise dispose of any of its
property, assets or business to any other Person, except to
any Subsidiary and except:
(a) Sales of equipment and inventory in the ordinary
course of business in bona fide arms-length
transactions provided such sales do not exceed
$250,000 in the aggregate on an annual basis and no
Default or Unmatured Default exists at the time of
or after giving effect to any such sale.
(b) The Sale of property or assets which are no longer
used or useful in the business of the Company or any
Subsidiary, provided that, within 90 days of any
such Sale, the Company or such Subsidiary, as the
case may be, shall replace such property or assets
with property or assets having substantially
equivalent or greater value.
(c) The Permitted Monterey Assignment.
6.13. SALE OF ACCOUNTS. The Company will not, nor will it permit any
Subsidiary to, sell or otherwise dispose of any notes receivable or accounts
receivable, with or without recourse except for any such transaction with a
Subsidiary.
6.14. SALE AND LEASEBACK. The Company will not, nor will it permit any
Subsidiary to, sell or transfer any property in order to concurrently or
subsequently lease as lessee such or similar property except for any such
transaction with a Subsidiary.
6.15. ACQUISITIONS. (a)The Company will not, nor will it permit
any Subsidiary to, consummate any Acquisition except for an Acquisition
satisfying the conditions set forth in this Section 6.15(a) (a
"Permitted Acquisition"):
(i) Any Acquisition satisfying the following conditions (an
"Allowed Acquisition"): (A) no Default or Unmatured
Default shall have occurred and be continuing at the time
of the consummation of such Allowed Acquisition or would
exist immediately after giving effect thereto; (B) each
business acquired, if conducted by the Company or a
Subsidiary, would comply with Section 6.21; (C) any capital
stock or other equity securities given as consideration in
connection therewith shall be stock or securities of the
Company; (D) in the case of an Acquisition involving the
acquisition of control of capital stock or
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other ownership interests of any Person, immediately after
giving effect to such Acquisition such Person (or the
surviving Person, if the Acquisition is effected through a
merger or consolidation) shall be the Company or a Wholly
Owned Subsidiary of the Company; (E) the consideration
being paid in connection with such Acquisition, together
with the aggregate consideration paid in connection with
all other Allowed Acquisitions consummated during such
fiscal year shall not exceed $20,000,000 (PROVIDED,
HOWEVER, that as to any Allowed Acquisition, such amount
shall be increased to $40,000,000 if, after giving effect
to such Acquisition, the Company's Total Leverage Ratio (as
reflected in the relevant Allowed Acquisition Certificate)
would be less than 4.5 to 1.0, and PROVIDED, FURTHER, that
the consideration to be paid in connection with an Allowed
Acquisition of a professional sports team or franchise
shall not exceed $5,000,000); and (F) the Company shall
have provided the Banks with the information required in
subsections (b) and (d) below.
(ii) The investment by KJR Radio, Inc. in Century Management,
Inc. upon the exercise by the Shareholders (as defined in
the Put and Call Agreement) of the put contemplated by
Section 1.1(a) of the Put and Call Agreement.
(iii) The Acquisition of KCCN-TV pursuant to the Monterey
Documents, so long as after giving effect thereto, no
Default or Event of Default shall have occurred and be
continuing.
(iv) Any Acquisition as to which the Required Banks have given
their prior written consent.
(b) Not less than five (5) Business Days prior to the consummation of
any Allowed Acquisition, the Company shall have delivered to the Managing Agent
and each Bank a summary description of the material terms of such Allowed
Acquisition (including, without limitation, the purchase price and method and
structure of payment) and of each Person or business that is the subject to such
Allowed Acquisition, together with summary financial information (including
statements of revenues and cash flows) with respect to each such acquired Person
or business. Such description shall be accompanied by a certificate of an
Authorized Officer of the Company (an "Allowed Acquisition Certificate")
certifying (and including appropriate calculations in support of such
certification based on the method used by the Company in determining compliance
with the financial covenants contained herein) (i) that after giving effect to
such Acquisition, the Company is in compliance with the financial covenants set
forth in Sections 6.22 through 6.25 hereof, and (ii) the Company's Total
Leverage Ratio after giving effect to such Acquisition.
(c) The consummation of each Allowed Acquisition shall be deemed to be
a representation and warranty by the Company that (except as shall have been
approved in writing by the Required Banks) all conditions thereto set forth in
Section 6.15(a) and (b) and in the description furnished under subsection (b)
above have been satisfied and that the same is permitted in accordance with the
terms of this Agreement, which representation and warranty shall be deemed to be
a representation and warranty as of the date thereof for all purposes hereunder.
(d) The Company will furnish to the Managing Agents and the Banks such
other information regarding any Permitted Acquisition and the assets, business
or Persons that are the subject thereof as the Managing Agents or any Bank may
from time to time reasonably request.
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6.16. INVESTMENTS. The Company will not, nor will it permit any
Subsidiary to, make or suffer to exist any Investments (including without
limitation, loans and advances to, and other Investments in, Subsidiaries), or
commitments therefor, or to create any Subsidiary other than a Wholly-Owned
Subsidiary or to become or remain a partner in any partnership or joint venture,
except:
(i) Short-term obligations of, or fully guaranteed by, the
United States of America.
(ii) Commercial paper rated A1 or better by Standard and Poor's
Corporation or P1 or better by Xxxxx'x Investors Service,
Inc.
(iii) Demand deposit accounts maintained in the ordinary course
of business.
(iv) Certificates of deposit issued by commercial banks having
capital, supplies and undivided profits aggregating in
excess of $200,000,000 and whose long-term certificates of
deposit or debt obligations are rated at least A (or
equivalent) by Standard & Poor's Corporation or A2 (or
equivalent) by Xxxxx'x Investors Services, Inc.
(v) Intercompany advances permitted under Section 6.11(iii),
PROVIDED, HOWEVER, that any capital contributions from the
Company or any Subsidiary to New Century shall be permitted
so long as no Event of Default has occurred or is
continuing. All such capital contributions to New Century
shall be limited to an aggregate amount of $1,200,000 per
annum in addition to the capital contribution required
pursuant to Section 3(g)(i) of the Amended Partnership
Agreement, which required capital contribution shall not
exceed $600,000.
(vi) Investments resulting from transactions entered into
pursuant to the Put and Call Agreement or the Amended
Partnership Agreement.
(vii) Investments in existence on the date hereof and described
in Schedule "1" hereto.
(viii) Investments required by the terms of the Monterey Documents
so long as after giving effect to any such Investment no
Default or Unmatured Default exists and so long as such
Investments do not exceed $6,325,000 in the aggregate.
6.17. GUARANTIES. The Company will not, nor will it permit any
Subsidiary to, make or suffer to exist any Guaranties (including, without
limitation, any Guaranty of the obligations of a Subsidiary or New Century),
except:
(i) Guaranties incurred in connection with airport advertising
contracts up to an aggregate amount (without duplication)
of $7,000,000 payable in any calendar year for all such
Guaranties.
(ii) Guaranties of obligations of Subsidiaries incurred in the
ordinary course of business up to an aggregate amount for
all such Guaranties of $500,000.
(iii) The Guaranty by the Company of the obligations of KJR
Radio, Inc. under Section 3.1(g)(i) of the Amended
Partnership Agreement.
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(iv) Guaranties of obligations of other Persons in respect of
the Monterey Acquisition up to an aggregate amount for all
such Guaranties of $14,000,000.
(v) The Guaranty by Xxxxxxxx Communications Group, Inc. in
favor of Fleet Capital Leasing in respect of the
Indebtedness described in Section 6.11(vii).
6.18. LIENS. The Company will not, nor will it permit any Subsidiary
to, create, incur, or suffer to exist any Lien, except:
(i) Liens for taxes, assessments or governmental charges or
levies on its property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or
are being contested in good faith and by appropriate
proceedings.
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of
obligations not more than 60 days past due.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age
pensions, or other social security or retirement benefits,
or similar legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a
nature generally existing with respect to properties of a
similar character and which do not in any material way
affect the marketability of the same or interfere with the
use thereof in the business of the Company or the
Subsidiaries.
(v) Lessors' interests under Capitalized Leases.
(vi) Liens created by the Pledge Agreement or any other Loan
Document.
(vii) Liens created by the pledge of the aircraft sublease
between Xxxxxxxx Communications Group, Inc. and TC
Aviation, Inc. to Fleet Capital Leasing.
(viii) Liens existing on the date hereof and described in Schedule
"3" hereto.
6.19. AFFILIATES. The Company will not, and will not permit any
Subsidiary to, enter into any transaction (including, without limitation, (i)
the purchase or sale of any property or service and (ii) any arrangement or
agreement providing for the payment by the Company or any Subsidiary of any
management fees or service charges for management, advisory or similar services)
with, or make any payment or transfer to, any Affiliate except in the ordinary
course of business and pursuant to the reasonable requirements of the Company's
or such Subsidiary's business and upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than the Company or such Subsidiary
would obtain in a comparable arms-length transaction (and, in the case of any
such management fees or service charges, only if and to the extent that such
management fees and service charges are subordinated to payment of the Secured
Obligations to the written satisfaction of the Banks).
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6.20. SUBORDINATED INDEBTEDNESS. The Company will not, nor will it
permit any Subsidiary to, make any amendment or modification to the indenture,
note or other agreement evidencing or governing any Subordinated Indebtedness,
or directly or indirectly prepay, purchase, redeem, retire or otherwise acquire
any Subordinated Indebtedness in excess of 105% of the par value of such
Subordinated Indebtedness, provided that this Section 6.19 shall not prevent the
Company from paying any Subordinated Indebtedness at maturity if permitted to do
so pursuant to the subordination provisions related to such Subordinated
Indebtedness.
6.21. OPERATION OF BUSINESS. The Company will not, nor will it permit
any Subsidiary to, engage in the operation of any business, other than that in
which it is presently engaged and businesses reasonably related thereto.
6.22. TOTAL LEVERAGE RATIO. The Company will maintain, as at the last
day of each fiscal quarter ending during the periods set forth below, a Total
Leverage Ratio not greater than the ratio set forth below opposite each such
period:
PERIOD RATIO
-------------- -----
The Closing Date through December 31, 1996 5.25 to 1.00
January 1, 1997 through June 30, 1997 5.00 to 1.00
July 1, 1997 through December 31, 1997 4.75 to 1.00
January 1, 1998 through June 30, 1998 4.50 to 1.00
July 1, 1998 through December 31, 1998 4.25 to 1.00
At all times thereafter 4.00 to 1.00
6.23. SENIOR LEVERAGE RATIO. The Company will maintain, as at the last
day of each fiscal quarter ending during the periods set forth below, a Senior
Leverage Ratio not greater than the ratio set forth below opposite each such
period:
PERIOD RATIO
---------- -----
The Closing through December 31, 1996 4.50 to 1.00
January 1, 1997 through June 30, 1997 4.25 to 1.00
July 1, 1997 through December 31, 1997 4.00 to 1.00
January 1, 1998 through June 30, 1998 3.75 to 1.00
July 1, 1998 through December 31, 1998 3.50 to 1.00
At all times thereafter 3.25 to 1.00
6.24. INTEREST COVERAGE RATIO. The Company will maintain, as at the
last day of each fiscal quarter ending during the periods set forth below, an
Interest Coverage Ratio not less than the ratio set forth below opposite each
such period:
PERIOD RATIO
------------ -----
The Closing Date through December 31, 1997 2.00 to 1.00
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At all times thereafter
2.50 to 1.00
6.25. FIXED CHARGE COVERAGE RATIO. The Company will maintain, as at the
last day of each fiscal quarter, a Fixed Charge Coverage Ratio of not less than
the ratio set forth below opposite each such period:
PERIOD RATIO
---------- -----
The Closing through September 30, 1996 1.00 to 1.00
October 1, 1996 through December 31, 1997 1.15 to 1.00
At all times thereafter 1.20 to 1.00
6.26. CERTAIN AMENDMENTS. The Company will not, nor will it permit any
Subsidiary to, amend, modify or waive any provision of, or assign, pledge or
otherwise transfer any of its rights or interests under, any of the Monterey
Documents (except for any grants of Liens as contemplated by the Xxxxxx Credit
Agreement and except for any sale, assignment or transfer by the Company or its
Subsidiary to a third party of the option granted to it pursuant to the Monterey
Option Agreement, provided that such transfer is effected in connection with a
time brokerage agreement in form and substance reasonably satisfactory to the
Required Banks).
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1. REPRESENTATIONS AND WARRANTIES. Any representation or warranty
made by or on behalf of the Company or any Subsidiary to the Banks or the
Managing Agents under or in connection with this Agreement, any Loan, any
Facility Letter of Credit, or any certificate or information delivered in
connection with this Agreement or any other Loan Document shall be materially
false on the date as of which made.
7.2. NONPAYMENT OF NOTES. Nonpayment of principal of any Note within
five days after the same becomes due, or of any Reimbursement Obligation within
five days after the same becomes due, or nonpayment of interest on any Note or
of any commitment fee or other obligations within five days after the same
becomes due.
7.3. BREACH OF COVENANTS. The breach by the Company of any of the
terms or provisions of Article VI of this Agreement.
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7.4. OTHER PROVISIONS. The breach by the Company (other than a breach
which constitutes a Default under Section 7.1, 7.2 or 7.3) of any of the terms
or provisions of this Agreement which is not remedied within 30 days after
written notice from the Administrative Agent or any Bank.
7.5. NONPAYMENT OF OTHER INDEBTEDNESS. Failure of the Company or any
Subsidiary to pay within five days after the same becomes due or when payment is
demanded any Indebtedness in excess of $100,000; or the default by the Company
or any Subsidiary in the performance of any term, provision or condition
contained in any agreement under which any such Indebtedness was created or is
governed, the effect of which is to cause, or to permit the holder or holders of
such Indebtedness to cause, such Indebtedness to become due prior to its stated
maturity; or any such Indebtedness shall be declared to be due and payable or
required to be prepaid (other than by a regularly scheduled payment) prior to
the stated maturity thereof.
7.6. VOLUNTARY BANKRUPTCY. The Company or any Subsidiary shall (i)
have an order for relief entered with respect to it under the federal bankruptcy
laws as now or hereafter in effect, (ii) not pay, or admit in writing its
inability to pay, its debts generally as they become due, (iii) make an
assignment for the benefit of creditors, (iv) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any substantial part of its property,
(v) institute any proceeding seeking an order for relief under the federal
bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a
bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (vi) take any corporate
action to authorize or effect any of the foregoing actions set forth in this
Section 7.6 or (vii) fail to contest in good faith any appointment or proceeding
described in Section 7.7.
7.7. INVOLUNTARY BANKRUPTCY. Without the application, approval or
consent of the Company or any Subsidiary, a receiver, trustee, examiner,
liquidate or similar official shall be appointed for the Company or any
Subsidiary or any substantial part of its property, or a proceeding described in
Section 7.6(v) shall be instituted against the Company or any Subsidiary and
such appointment continues undischarged or such proceeding continues undismissed
or unstayed for a period of 30 consecutive days.
7.8. GOVERNMENT SEIZURE. Any court, government or governmental agency
shall condemn, seize or otherwise appropriate, or take custody or control of all
or any substantial portion of the property of the Company or any Subsidiary.
7.9. JUDGMENTS AND ORDERS. The Company or any Subsidiary shall fail
within 30 days to pay, bond or otherwise discharge any judgment or order for the
payment of money in excess of $100,000, which is not stayed on appeal or
otherwise being appropriately contested in good faith.
7.10. ERISA. The Unfunded Liabilities of all Plans of the Company and
the Subsidiaries shall exceed $50,000 in the aggregate or the Company's or any
Subsidiary's pro rata share of the Unfunded Liabilities of the Plan or Plans
maintained by the National Basketball Association shall exceed $650,000 or any
Reportable Event shall occur in connection with any Plan.
7.11. AUTHORIZATION.
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(i) Any Authorization (including, without limitation, any FCC
license) necessary for the ownership or essential for the
operation by the Company or any Subsidiary of any Station
shall expire, and on or prior to such expiration, the same
shall not have been renewed or replaced by another
Authorization authorizing substantially the same operations
of such Station; or
(ii) any Authorization (including, without limitation, any FCC
license) necessary for the ownership or essential for the
operation of any Station shall be cancelled, revoked,
terminated, rescinded, annulled, suspended or modified in a
materially adverse respect, or shall no longer be in full
force and effect, or the grant or the effectiveness thereof
shall have been stayed, vacated, reversed or set aside, and
such action shall be no longer subject to further
administrative or judicial review; or
(iii) the FCC shall have issued, on its own initiative and not
upon the complaint of or at the request of a third party,
any hearing designation order in any non-comparative
license renewal proceeding or license revocation proceeding
involving any license necessary for the ownership or
essential for the operation of any Station by the Company
or any Subsidiary; or
(iv) in any non-comparative license renewal proceeding or
license revocation proceeding initiated by the FCC upon the
complaint of or at the request of a third party or any
comparative (i.e., multiple applicant) license renewal
proceeding, in each case involving any license necessary
for the ownership or essential for the operation of any of
the Stations by the Company or any Subsidiary, any
administrative law judge of the FCC (or successor to the
functions of an administrative law judge of the FCC) shall
have issued an initial decision to the effect that the
Company or any Subsidiary lacks the basic qualifications to
own or operate any of the Stations or is not deserving of a
renewal expectancy, and such initial decision shall not
have been timely appealed or shall otherwise have become an
order that is final and no longer subject to further
administrative or judicial review; or
(v) any franchise issued by any professional sports association
which is required or essential to the ownership or
operation of the Seattle Supersonics shall be modified in
any materially adverse respect, cancelled, revoked,
terminated, rescinded, annulled or suspended or shall no
longer be in full force and effect (PROVIDED, HOWEVER, that
none of the foregoing events described in clauses (i),
(ii), (iii), (iv) or (v) of this Section 7.11 shall
constitute a Default if such expiration, cancellation,
revocation or other loss would not materially adversely
affect the value of the Pledged Stock or have a Material
Adverse Effect) or (vi) any Station shall fail for any
period of five consecutive calendar days to operate or
maintain any broadcast signal, and such failure is not
covered by business interruption insurance.
7.12. OTHER LOAN DOCUMENTS. The occurrence of any "default", as defined
in any Loan Document (other than this Agreement or the Notes) or the breach of
any of the terms or provisions of any Loan Document (other than this Agreement
or the Notes), which default or breach continues beyond any period of grace
therein provided.
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7.13. RATE HEDGING OBLIGATIONS. Nonpayment by the Company of any Rate
Hedging Obligation, or the breach by the Company of any material term, provision
or condition contained in any agreement, device or arrangement giving rise to
any Rate Hedging Obligation, which breach continues beyond any period of grace
therein provided.
7.14. INVALIDITY OF PLEDGE AGREEMENT. The Pledge Agreement shall for
any reason have failed to create a valid and perfected first priority security
interest in any collateral purported to be covered thereby, except as permitted
by the terms thereof, or the Pledge Agreement shall fail to remain in full force
or effect or any action shall be taken to discontinue or to assert the
invalidity or, unenforceability of the Pledge Agreement.
7.15. HAZARDOUS SUBSTANCES. The Company or any Subsidiary shall be the
subject of any proceeding or investigation pertaining to the release by the
Company or any of its Subsidiaries, or any other Person of any toxic or
hazardous waste or substance into the environment, or any violation of any
federal, state or local environmental, health or safety law or regulation, which
would, in either case, have a Material Adverse Effect.
7.16. XXXXXX DEFAULT. There shall occur a "Default" under the Xxxxxx
Credit Agreement.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. ACCELERATION.
(i) If any Default described in Section 7.6 or 7.7 occurs and
is continuing with respect to the Company, (a) the
obligations of the Issuer to issue Facility Letters of
Credit and the Banks to make Loans hereunder shall
automatically terminate and the Obligations shall
immediately become due and payable without presentment,
demand, protest or notice of any kind, all of which the
Company hereby expressly waives and without any election or
action on the part of the Managing Agents or any Bank and
(b) the Company will be and become thereby unconditionally
obligated, without the need for demand or the necessity of
any act or evidence, to deliver to the Administrative
Agent, at its address specified pursuant to Article XIII,
for deposit into a non-interest bearing collateral account
with the Administrative Agent, over which the Company shall
have no access or control (the "Letter of Credit Collateral
Account") to be held in such account and applied by the
Banks as provided in Section 5(f) of the Pledge Agreement,
an amount (the "Collateral Shortfall Amount") equal to the
excess, if any, of
(1) 100% of the sum of the aggregate maximum amount
remaining available to be drawn under Facility
Letters of Credit (assuming compliance with all
conditions for drawing thereunder), and other
Facility Letter of Credit Obligations due and
payable in respect of, the Facility Letters of
Credit issued and outstanding as of such time, OVER
(2) the amount on deposit in the Letter of Credit
Collateral Account at such time that is free and
clear of all rights and claims of third parties and
that has not been applied by the Banks against the
Obligations.
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(ii) If any Default occurs and is continuing (other than
a Default described in Section 7.6 or 7.7 with
respect to the Company), (a) the Required Banks may
terminate or suspend the obligations of the Banks to
make Loans hereunder, or declare the Obligations to
be due and payable, or both, whereupon the
Obligations shall become immediately due and
payable, without presentment, demand, protest or
notice of any kind, all of which the Company hereby
expressly waives and (b) the Required Banks may
cause the Issuer to, upon notice delivered to the
Company, terminate or suspend the obligations of the
Issuer to issue Facility Letters of Credit and if
the Required Banks have exercised their right to
accelerate the Loans under clause (ii)(a) of this
Section 8.1 or if no Loans are outstanding, make
demand on the Company to deliver (and the Company
will, forthwith upon demand by the Issuer and
without necessity of further act or evidence, be and
become thereby unconditionally obligated to
deliver), to the Administrative Agent, at its
address specified pursuant to Article XIII, for
deposit into the Letter of Credit Collateral Account
an amount equal to the Collateral Shortfall Amount
to be held in such account and applied by the
Administrative Agent as provided herein.
(iii) If at any time while any Default is continuing, the
Administrative Agent determines that the Collateral
Shortfall Amount at such time is greater than zero,
the Administrative Agent may make demand on the
Company to deliver (and the Company will, forthwith
upon demand by the Administrative Agent and without
necessity of further act or evidence, be and become
thereby unconditionally obligated to deliver), to
the Administrative Agent as additional funds to be
deposited and held in the Letter of Credit
Collateral Account an amount equal to such
Collateral Shortfall Amount at such time (or such
lesser amount as may be so requested).
(iv) At any time while any Default is continuing, the
Administrative Agent may at any time and from time
to time after funds are deposited in the Letter of
Credit Collateral Account, apply such funds to the
payment of the Facility Letter of Credit
Obligations.
(v) Neither the Company nor any Person claiming on
behalf of or through the Company shall have any
right to withdraw any of the funds held in the
Letter of Credit Collateral Account. After all of
the Secured Obligations have been paid in full, and
provided no litigation, proceeding or claim for
rescission or restoration of any such payment of the
Secured Obligations is pending or threatened against
the Administrative Agent or any Bank, any funds
remaining in the Letter of Credit Collateral Account
shall be returned by the Administrative Agent to the
Company or paid to whoever may be legally entitled
thereto at such time.
(vi) The Administrative Agent shall exercise reasonable
care in the custody and preservation of any funds
held in the Letter of Credit Collateral Account and
shall be deemed to have exercised such care if such
funds are accorded treatment substantially
equivalent to that which the Administrative Agent
accords its own property, it being understood that
the Administrative Agent shall not have any
responsibility for taking any necessary steps to
preserve rights against any Persons with respect to
any such funds.
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(vii) If, within 14 days after acceleration of the
maturity of the Obligations or termination of the
obligations of the Banks to make Loans hereunder as
a result of any Default (other than any Default as
described in Section 7.6 or 7.7 with respect to the
Company) and before any judgment or decree for the
payment of the Obligations due shall have been
obtained or entered, the Required Banks (in their
sole discretion) shall so direct, the Administrative
Agent shall, by notice to the Company, rescind and
annul such acceleration and/or termination.
8.2. AMENDMENTS. Subject to the provisions of this Section 8.2, the
Required Banks (or the Managing Agents with the consent in writing of the
Required Banks) and the Company may enter into agreements supplemental hereto or
to any other Loan Document for the purpose of adding any provisions to this
Agreement or such other Loan Document or changing in any manner the rights of
the Banks or the Company hereunder or thereunder or waiving or consenting to any
Default hereunder or thereunder; PROVIDED, HOWEVER, that no such supplemental
agreement, waiver or consent shall, without the consent of each Bank affected
thereby:
(i) Change the maturity of any Loan or Note or reduce the
principal amount thereof, or reduce the rate or extend the
time of payment of interest or fees thereon.
(ii) Change the percentage or number specified in the definition
of Required Banks.
(iii) Extend the Commitment Termination Date or reduce the amount
or extend the payment date for, the mandatory payments
required under Section 2.4, 2.5 or 2.6 or increase the
amount of the Commitment of any Bank hereunder, or permit
the Company to assign its rights or obligations under this
Agreement.
(iv) Release or substitute any collateral pledged under the
Pledge Agreement or any other Loan Document.
(v) Amend this Section 8.2.
(vi) Modify the terms applicable to the Facility Letters of
Credit without the consent of the Managing Agents.
No amendment of any provision of this Agreement or any other Loan Document
relating to the Managing Agents shall be effective without the written consent
of the Managing Agents. Each of the Managing Agents may waive payment of any
fees payable to it hereunder without obtaining the consent of any of the Banks.
8.3. PRESERVATION OF RIGHTS. No delay or omission of the Banks or the
Managing Agents to exercise any right under the Loan Documents shall impair such
right or be construed to be a waiver of any Default or an acquiescence therein,
and any single or partial exercise of any such right shall not preclude other or
further exercise thereof or the exercise of any other right, and no waiver,
amendment or other variation of the terms, conditions or provisions of the Loan
Documents whatsoever shall be valid unless in writing signed by the Banks
required pursuant to Section 8.2. and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Managing Agents
and the Banks until the Obligations have been paid in full.
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ARTICLE IX
GENERAL PROVISIONS
9.1. SURVIVAL OF REPRESENTATIONS. All representations and warranties
of the Company contained in this Agreement shall survive delivery of the Notes,
the making of the Loans and the issuance of Facility Letters Of Credit herein
contemplated.
9.2. GOVERNMENTAL REGULATION. Anything contained in this Agreement to
the contrary notwithstanding, no Bank shall be obligated to extend credit to the
Company in violation of any limitation or prohibition provided by any applicable
statute or regulation.
9.3. TAXES. Any taxes (excluding federal income taxes on the overall
net income of any Bank) payable or ruled payable by any Governmental Authority
in respect of the Loan Documents shall be paid by the Company, together with
interest and penalties, if any.
9.4. READINGS. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.5. ENTIRE AGREEMENT. The Loan Documents embody the entire agreement
and understanding among the Company, the Managing Agents and the Banks and
supersede all prior agreements and understandings among the Company, the
Managing Agents and the Banks relating to the subject matter thereof.
9.6. ACCOUNTING. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Generally Accepted
Accounting Principles.
9.7. SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective
obligations of the Banks hereunder are several and not joint and no Bank shall
be the partner or agent of any other (except to the extent to which the Managing
Agents are authorized to act as such). The failure of any Bank to perform any
of its obligations hereunder shall not relieve any other Bank from any of its
obligations hereunder. This Agreement shall not be construed so as to confer
any right or benefit upon any Person other than the parties to this Agreement
and their respective successors and assigns.
9.8. EXPENSES. The Company shall reimburse the Managing Agents for any
and all costs, internal charges and out-of-pocket expenses (including reasonable
attorneys' fees and time charges of attorneys for the Managing Agents, which
attorneys may be employees of the Managing Agents) paid or incurred by the
Managing Agents in connection with the preparation, review, execution, delivery,
amendment, modification, administration, collection and enforcement of the Loan
Documents; PROVIDED, HOWEVER, that the costs and expenses incurred by the
Managing Agents in connection with the preparation, review, execution and
delivery of the Loan Documents shall be subject to the dollar limitation set
forth in the Fee Letter. The Company shall reimburse the Banks for any and all
costs, internal charges and out-of-pocket expenses (including reasonable
attorneys' fees and time charges of attorneys for the Banks, which attorneys may
be employees of the Banks) paid or incurred by any Bank in connection with the
collection and enforcement of the Loan Documents. The Company further agrees to
indemnify the Managing Agents and each Bank, their respective directors,
officers and employees, against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without limitation, all expenses
of litigation or preparation therefor, whether or not either of the Managing
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Agents or any Bank is a party thereto) which any of them may pay or incur in
connection with or arising out of the direct or indirect application of the
proceeds of any Loan hereunder or the use or intended use of any Facility Letter
of Credit. The obligations of the Company under this Section shall survive the
termination of this Agreement.
9.9. NUMBERS OF DOCUMENTS. All statements, notices and requests
hereunder shall be furnished to the Administrative Agent with sufficient
counterparts so that the Managing Agents may furnish one to each of the Banks.
9.10. SEVERABILITY OF PROVISIONS. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.11. NONLIABILITY OF BANKS. The relationship between the Company and
the Banks and the Managing Agents shall be solely that of borrower and lender.
Neither the Managing Agents nor any Bank shall have any fiduciary
responsibilities to the Company. Neither the Managing Agents nor any Bank
undertakes any responsibility to the Company to review or inform the Company of
any matter in connection with any phase of the Company's business or operations.
9.12. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF
NORTH CAROLINA, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
9.13. CONSENT TO JURISDICTION. THE COMPANY HEREBY CONSENTS TO THE
JURISDICTION OF ANY STATE COURT WITHIN MECKLENBURG COUNTY, NORTH CAROLINA OR ANY
FEDERAL COURT LOCATED WITHIN THE WESTERN DISTRICT OF THE STATE OF NORTH
CAROLINA, FOR ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY OF THE
LOAN DOCUMENTS AND CONSENTS THAT ALL SERVICE OF PROCESS BE MADE BY REGISTERED OR
CERTIFIED MAIL DIRECTED TO THE COMPANY AT THE ADDRESS INDICATED IN THIS CREDIT
AGREEMENT OR AT SUCH OTHER ADDRESS AS THE COMPANY MAY HAVE DESIGNATED IN WRITING
TO THE ADMINISTRATIVE AGENT, AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED
UPON THE ACTUAL RECEIPT THEREOF, PROPER POSTAGE PREPAID AND PROPERLY ADDRESSED.
NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF THE MANAGING AGENTS OR ANY
BANK TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE
RIGHT OF THE MANAGING AGENTS OR ANY BANK TO BRING ANY ACTION AND PROCEEDING
AGAINST THE COMPANY OR THE PLEDGED STOCK IN THE COURTS OF ANY JURISDICTION THAT
HAS JURISDICTION OVER THE COMPANY OR THE PLEDGED STOCK.
9.14. ARBITRATION; REMEDIES. (a)Upon demand of any party hereto,
whether made before or after institution of any judicial proceeding, any
dispute, claim or controversy arising out of, connected with or relating to this
Agreement or any of the Loan Documents ("Disputes") between or among parties
hereto or thereto shall
-47-
be resolved by binding arbitration as provided herein. Institution of a
judicial proceeding by a party does not waive the right of that party to demand
arbitration hereunder. Disputes may include, without limitation, tort claims,
counterclaims, claims brought as class actions, claims arising from documents
executed in the future, or claims arising out of or connected with the
transaction contemplated by this Agreement or any of the Loan Documents.
Arbitration shall be conducted under and governed by the Commercial Financial
Disputes Arbitration Rules (the "Arbitration Rules") of the American Arbitration
Association (the "AAA") and Title 9 of the U.S. Code. All arbitration hearings
shall be conducted in Charlotte, North Carolina. The expedited procedures set
forth in Rule 51 ET SEQ. of the Arbitration Rules shall be applicable to claims
of less than $1,000,000. All applicable statutes of limitation shall apply to
any Dispute. A judgment upon the award may be entered in any court having
jurisdiction. The panel from which all arbitrators are selected shall be
comprised of licensed attorneys. The single arbitrator selected for expedited
procedure shall be a retired judge from the highest court of general
jurisdiction, state or federal, of the state where the hearing will be
conducted. Notwithstanding the foregoing, this arbitration provision does not
apply to disputes under or related to any Rate Hedging Agreements.
(b) Notwithstanding the foregoing, the Company and each of the Banks
agree to preserve, without diminution, certain remedies that any party hereto
may employ or exercise freely, either alone, in conjunction with or during a
Dispute. The Company and each of the Banks shall have the absolute right to
proceed in any court of proper jurisdiction or by self-help to exercise or
prosecute the following remedies, as applicable (and the parties agree not to
interfere with any such preserved remedies by a demand for arbitration under
this Section 9.14): (i) all rights to foreclose against any real or personal
property or other security by exercising a power of sale granted under any Loan
Documents or under applicable law or by judicial foreclosure and sale, including
a proceeding to confirm the sale; (ii) all rights of self-help including
peaceful occupation of real property and collection of rents, set-off, and
peaceful possession of personal property; (iii) obtaining provisional or
ancillary remedies including injunctive relief, sequestration, garnishment,
attachment, appointment of receiver and filing an involuntary bankruptcy
proceeding; and (iv) when applicable, a judgment by confession of judgment.
Preservation of these remedies does not limit the power of any arbitrator to
grant similar remedies that may be requested by a party in a Dispute.
The Company and each of the Banks agree that they shall not have a remedy
of punitive or exemplary damages against the other in any Dispute and hereby
waive any right or claim to punitive or exemplary damages they have now or
which may arise in the future in connection with any Dispute whether the Dispute
is resolved by arbitration or judicially.
9.15. CONFIDENTIALITY. The Managing Agents and each Bank agrees to hold
any confidential information which it may receive from the Company pursuant to
this Agreement in confidence, except for disclosure (i) to other Banks and their
respective Affiliates, (ii) to legal counsel, accountants and other professional
advisors to such Bank, (iii) to regulatory officials, (iv) requested pursuant to
or required by law, regulation, or legal process, (v) in connection with any
legal proceeding to which such Bank is a party, (vi) permitted by Section 10.13
and (vii) permitted by Section 12.4.
9.16. LIMITATION OF RIGHTS. Notwithstanding any other provision of this
Agreement or any other Loan Document, any foreclosure on, sale, transfer, or
other disposition of, or the exercise of any right to vote or consent with
respect to, any of the collateral purported to be covered by the Pledge
Agreement or any other Loan Document as provided herein or in any other Loan
Document or any other action taken or proposed to be taken by the Managing
Agents or any Bank hereunder or thereunder which would affect the operational,
voting, or other control of the Company or any Subsidiary, shall be pursuant to
Section 310 (d) of the Communications
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Act of 1934, as amended, and to the applicable rules and regulations thereunder
and, if and to the extent required thereby, subject to the prior consent of the
FCC.
ARTICLE X
THE ADMINISTRATIVE AGENT AND THE DOCUMENTATION AGENT
10.1. APPOINTMENT AND POWERS.
(i) Fleet Bank, N.A. is hereby appointed Administrative Agent
hereunder and under the other Loan Documents, and each of
the Banks irrevocably authorizes the Administrative Agent
to act as the agent of such Bank. The Administrative Agent
agrees to act as such upon the express conditions contained
in this Section 10 and in the other Loan Documents. The
duties of the Administrative Agent shall be administrative
in nature and the Administrative Agent shall not have a
fiduciary relationship in respect of any Bank by reason of
this Agreement or any other Loan Document. In performing
its functions and duties under this Agreement and the other
Loan Documents, the Administrative Agent shall act solely
as the agent of the Banks and does not assume and shall not
be deemed to have assumed any obligation towards or
relationship of agency or trust with or for the Company,
except that the Administrative Agent shall hold in trust
for the benefit of the Banks as their interests may appear
all payments received by the Administrative Agent for the
account of the Banks hereunder.
(ii) First Union National Bank of North Carolina is hereby
appointed Documentation Agent hereunder and under the other
Loan Documents, and each of the Banks irrevocably
authorizes the Documentation Agent to act as the agent of
such Bank. The Documentation Agent agrees to act as such
upon the express conditions contained in this Section 10
and in the other Loan Documents. The duties of the
Documentation Agent shall be administrative in nature and
the Documentation Agent shall not have a fiduciary
relationship in respect of any Bank by reason of this
Agreement or any other Loan Document. In performing its
functions and duties under this Agreement and the other
Loan Documents, the Documentation Agent shall act solely as
the agent of the Banks and does not assume and shall not be
deemed to have assumed any obligation towards or
relationship of agency or trust with or for the Company,
except that the Documentation Agent shall hold in trust for
the benefit of the Banks as their interests may appear all
payments received by the Documentation Agent for the
account of the Banks hereunder.
10.2. POWERS. The Managing Agents shall have and may exercise such
powers as are specifically delegated to the Managing Agents by the terms of the
Loan Documents, together with such powers as are reasonably incidental thereto.
The Managing Agents shall have no implied duties to the Banks, or any obligation
to the Banks to take any action under the Loan Documents except any action
specifically provided by the Loan Documents to be taken by the Managing Agents.
10.3. GENERAL IMMUNITY. Neither the Managing Agents nor any of their
directors, officers, agents or employees shall be liable to the Banks or any
Bank for any action taken or omitted to be taken by them under or in connection
with any Loan Document except their own gross negligence or wilful misconduct.
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10.4. NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. Neither the Managing
Agents nor any of their directors officers, agents or employees shall be
responsible for or be bound to ascertain, inquire into, or verify (i) any
statement, warranty or representation made in connection with any Loan Document
or any borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of any obligor under any Loan Document; (iii) the
satisfaction of any condition specified in Section 4 except receipt of items
required to be delivered to the Managing Agents; (iv) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith or (v) the perfection, priority,
condition, value or sufficiency of any of the collateral purported to be covered
by any Loan Document.
10.5. RIGHT TO INDEMNITY. The Managing Agents shall be fully justified
in failing or refusing to take any action under the Loan Documents unless they
shall first be indemnified to their satisfaction by the Banks pro rata against
any and all liability, cost and expense which may be incurred by them by reason
of taking or continuing to take any such action.
10.6. ACTION ON INSTRUCTIONS OF BANKS. The Managing Agents shall in
all cases be fully protected in acting, or in refraining from acting, under the
Loan Documents in accordance with written instructions signed by the Banks
required for such action pursuant to Section 8.2, and such instructions and any
action taken or failure to act pursuant thereto shall be binding on all of the
Banks and on all holders of the Notes.
10.7. EMPLOYMENT OF MANAGING AGENTS' AND COUNSEL. The Managing Agents
may execute any of their respective duties as Managing Agents by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Banks, except as to money or securities received by it or its authorized agents,
for the default or misconduct of any such agents or attorneys-in-fact selected
by it with reasonable care. The Managing Agents shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and their
respective duties hereunder.
10.8. RELIANCE ON DOCUMENTS; COUNSEL. The Managing Agents shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Managing Agents,
which counsel may be employees of either Managing Agent.
10.9. MANAGING AGENTS' REIMBURSEMENT AND INDEMNIFICATION. The Banks
agree to reimburse and indemnify the Managing Agents ratably in proportion to
their respective Commitments (i) for any amounts not reimbursed by the Company
for which the Managing Agents are entitled to reimbursement by the Company under
the Loan Documents (other than the fee referred to in Section 10.15), (ii) for
any other expenses incurred by the Managing Agents on behalf of the Banks, in
connection with the preparation, execution, delivery, administration, workout,
restructure, collection and enforcement of the Loan Documents and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Managing Agents in any way
relating to or arising out of the Loan Documents or any other document delivered
in connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents, provided
that no Bank shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the Managing Agents.
10.10. RIGHTS AS A LENDER. With respect to their respective
Commitments, Loans made by them and each Note issued to them, Fleet and First
Union shall have the same rights and powers hereunder and under any
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other Loan Document as any Bank and may exercise the same as though they were
not the Managing Agents, and the term "Bank" or "Banks" shall, unless the
context otherwise indicates, include Fleet and First Union in their individual
capacities, as the case may be. Fleet and First Union, as the case may be may
accept deposits from, lend money to, and generally engage in any kind of banking
or trust business with the Company or any Subsidiary as if they were not the
Managing Agents.
10.11. BANK CREDIT DECISION. Each Bank acknowledges that it has,
independently and without reliance upon the Managing Agents or any other Bank
and based on the financial statements referred to in Section 5.4 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Bank also acknowledges
that it will, independently and without reliance upon the Managing Agents or any
other Bank 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 action under this Agreement.
10.12. SUCCESSOR MANAGING AGENTS. Either Managing Agent may resign at
any time by giving written notice thereof to the Banks and the Company, and may
be removed at any time with or without cause by written notice received by such
Managing Agent from the Required Banks. Upon any such resignation or removal,
the Required Banks shall have the right to appoint, on behalf of the Banks, a
successor Managing Agent. If no successor Managing Agent shall have been so
appointed by the Required Banks and shall have accepted such appointment within
thirty days after the retiring Managing Agent's giving notice of resignation or
receiving notice of removal, then the retiring Managing Agent may appoint, on
behalf of the Banks, a successor Managing Agent. Such successor Managing Agent
shall be a Bank or a commercial bank having capital and retained earnings of at
least $200,000,000. Upon the acceptance of any appointment as a Managing Agent
hereunder by a successor Managing Agent, such successor Managing Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Managing Agent, and the retiring Managing Agent shall
be discharged from its duties and obligations under the Loan Documents. After
any retiring Manager Agent's resignation or removal hereunder as Managing Agent,
the provisions of this Section 10 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
a Managing Agent under the Loan Documents.
10.13. DISTRIBUTION OF INFORMATION. The Company authorizes the Managing
Agents, as the Managing Agents may elect in their sole discretion, and each Bank
to discuss with and furnish to the Banks or to any other Person having an
interest in the Secured Obligations (whether as a guarantor, pledgor of
collateral, participant, purchaser or otherwise) all financial statements, audit
reports and other information pertaining to the Company and the Subsidiaries,
whether such information was provided by the Company or prepared or obtained by
the Managing Agents. Neither the Managing Agents nor any of their employees,
officers, directors or agents makes any representation or warranty regarding any
audit reports or other analyses of the Company's and the Subsidiaries' condition
which the Managing Agents may elect to distribute, whether such information was
provided by the Company or prepared or obtained by the Managing Agents, nor
shall the Managing Agents or any of their respective employees, officers,
directors or agents be liable to any Person receiving a copy of such reports or
analyses for any inaccuracy or omission contained in or relating thereto.
10.14. COLLATERAL RELEASES. The Banks hereby empower and authorize the
Managing Agents to execute and deliver to the Company or any, Subsidiary any
such agreements, documents or instruments as shall be necessary or appropriate
to effect any releases of collateral which shall be permitted by the terms
hereof or of any other Loan Document or which shall otherwise have been approved
by the Required Banks (or, if required by the terms of Section 8.2, all of the
Banks) in writing.
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10.15. MANAGING AGENTS' FEES. The Company agrees to pay the
Administrative Agent for the account of the Managing Agents such fees as
heretofore agreed in the Fee Letter.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. SETOFF. In addition to, and without limitation of, any rights of
the Banks under applicable law, if the Company becomes insolvent, however
evidenced, or any Default or Unmatured Default occurs, any indebtedness from any
Bank to the Company (including all account balances, whether provisional or
final and whether or not collected or available) may be offset and applied
toward the payment of the Obligations owing to such Bank, whether or not the
Obligations, or any part hereof, shall then be due.
11.2. RATABLE PAYMENTS. In case at any time any Bank, whether by
setoff or otherwise, has payment made to it upon its Loans (other than payments
received pursuant to Section 3.1, 3.3 or 3.4) in a greater proportion than
received by any other Bank, such Bank so receiving such greater proportionate
payment agrees to purchase a portion of the Loans held by the other Banks so
that after such purchase each Bank will hold its ratable proportion of Loans.
Any such purchase shall be made first, of Floating Rate Advances and second, of
Eurodollar Advances. If any Bank, whether in connection with setoff or amounts
which might be subject to setoff or otherwise, receives collateral or other
protection for its Obligations or such amounts which may be subject to set off,
such Bank agrees, promptly upon demand, to take such action necessary such that
all Banks share in the benefits of such collateral ratably in proportion to
their Loans. In case any such payment is disturbed by legal process, or
otherwise, appropriate further adjustments shall be made. If an amount to be
setoff is to be applied to Indebtedness of the Company to a Bank, other than
Indebtedness evidenced by any of the Notes held by such Bank, such amount shall
be applied ratably to such other Indebtedness and to the Indebtedness evidenced
by such Notes.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Company and the
Banks and their respective successors and assigns, except that the Company shall
not have the right to assign its rights or obligations under the Loan Documents
and any assignment by any Bank must be made in compliance with Section 12.3.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes hereof unless and until such payee complies with
Section 12.3, in the case of an assignment thereof, or, in the case of any other
transfer, a written notice of such transfer is filed with the Administrative
Agent. Any assignee or transferee of a Note agrees by acceptance thereof to be
bound by all the terms and provisions of the Loan Documents. Any request,
authority or consent of any Person, who at the time of making such request or
giving such authority or consent is the holder of any Note, shall be conclusive
and binding on any subsequent holder, transferee or assignee of such Note or of
any Note or Notes issued in exchange therefor.
12.2. PARTICIPATIONS.
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12.2.1. PERMITTED PARTICIPANTS; EFFECT. Any Bank may, in the
ordinary course of its commercial banking business and in accordance with
applicable law, at any time sell to one or more banks or other entities
("Participants") participating interests in any Loan owing to such Bank, any
Note held by such Bank, any Bank's Pro Rata Share of or participation in any
Facility Letter of Credit, all or any portion of the Commitment of such Bank or
any other interest of such Bank under the Loan Documents. Each such
participation sold by a Bank shall be in a minimum amount equal to the lesser of
(a) $5,000,000 and (b) such Bank's Commitment. In the event of any such sale by
a Bank of participating interests to a Participant, such Bank's obligations
under the Loan Documents shall remain unchanged, such Bank shall remain solely
responsible to the other parties hereto for the performance of such obligations,
such Bank shall remain the holder of any such Note for all purposes under the
Loan Documents, all amounts payable by the Company under this Agreement shall be
determined as if such Bank had not sold such participating interests, and the
Company and the Managing Agents shall continue to deal solely and directly with
such Bank in connection with such Bank's rights and obligations under the Loan
Documents.
12.2.2. VOTING RIGHTS. Each Bank shall retain the sole right
to approve, without the consent of any Participant, any amendment, modification
or waiver of any provision of the Loan Documents other than any amendment.
modification or waiver with respect to any Loan or Commitment in which such
Participant has an interest which forgives principal, interest or fees or
reduces the interest rate or fees payable with respect to any such Loan or
Commitment, postpones any date fixed for any regularly-scheduled payment of
principal of, or interest or fees on, any such Loan or Commitment, releases any
guarantor of any such Loan or releases any substantial portion of collateral, if
any, securing any such Loan.
12.2.3. BENEFIT OF SETOFF. The Company agrees that each
Participant shall be deemed to have the right of setoff provided in Section 11.1
in respect of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating interest were
owing directly to it as a Bank under the Loan Documents, provided that each Bank
shall retain the right of setoff provided in Section 11.1 with respect to the
amount of participating interests sold to each Participant. The Banks agree to
share with each Participant, and each Participant, by exercising the right of
setoff provided in Section 11.1, agrees to share with each Bank, any amount
received pursuant to the exercise of its right of setoff, such amounts to be
shared in accordance with Section 11.2 as if each Participant were a Bank.
12.3. ASSIGNMENTS.
12.3.1. PERMITTED ASSIGNMENTS. Any Bank may, in the ordinary
course of its commercial banking business and in accordance with applicable law,
at any time assign to one or more banks or other entities ("Purchasers") all or
any part of its rights and obligations under the Loan Documents. Each such
assignment made by a Bank shall be in a minimum amount equal to the lesser of
(a) $5,000,000, and (b) such Bank's Commitment. Each such assignment shall be
substantially in the form of Exhibit "D" hereto. Unless a Default has occurred
and is continuing, the consent of the Company and the Managing Agents shall be
required prior to an assignment becoming effective with respect to a Purchaser
which is not a Bank or an Affiliate thereof. Such consent shall be
substantially in the form attached as Exhibit "II" to Exhibit "D" hereto and
shall not be unreasonably withheld.
12.3.2. EFFECT; EFFECTIVE DATE. Upon (i) delivery to the
Managing Agents of a notice of assignment, substantially in the form attached as
Exhibit "I" to Exhibit "D" hereto (a "Notice of Assignment"), together with any
consents required by Section 12.3.1, and (ii) except in the case of a Bank
making an assignment to an Affiliate of such Bank, payment of a $2,500 fee by
the assigning Bank to the Administrative Agent for processing such assignment,
such assignment shall become effective on the effective date specified
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in such Notice of Assignment. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Bank party to this
Agreement and any other Loan Document executed by the Banks and shall have all
the rights and obligations of a Bank under the Loan Documents, to the same
extent as if it were an original party hereto, and no further consent or action
by the Company, the Banks or the Managing Agents shall be required to release
the transferor Bank with respect to the percentage of the Aggregate Commitment
(or portion thereof) and Loans assigned to such Purchaser. Upon the
consummation of any assignment to a Purchaser pursuant to this Section 12.3.2.
the transferor Bank, the Managing Agents and the Company shall make appropriate
arrangements so that a replacement Note or replacement Notes are issued to such
transferor Bank and a new Note or new Notes or, as appropriate, a replacement
Note or replacement Notes, are issued to such Purchaser, in each case in
principal amounts reflecting their respective Commitments, as adjusted pursuant
to such assignment.
12.4. DISSEMINATION OF INFORMATION. The Company authorizes each Bank
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Bank's possession
concerning the creditworthiness of the Company and the Subsidiaries; provided
that each Transferee agrees to be bound by Section 9.15 of this Agreement.
12.5. TAX TREATMENT. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Bank shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 2.21.
ARTICLE XIII
NOTICES
13.1. GIVING NOTICE. Except as otherwise permitted by Section 2.14 with
respect to borrowing, conversions and continuation notices, all notices and
other communications provided to any party hereto under this Agreement or any
other Loan Document shall be in writing or by telex or by facsimile and
addressed or delivered to such party at its address set forth below its
signature hereto or at such other address as may be designated by such party in
a notice to the other parties. Any notice, if mailed and properly addressed
with postage prepaid, shall be deemed given when received; any notice, if
transmitted by telex or facsimile, shall be deemed given when transmitted
(answerback confirmed in the case of telexes and telephone confirmation (by an
Authorized Officer in the case of the Company) of receipt in the case of
facsimile).
13.2. CHANGE OF ADDRESS. The Company, each Managing Agent and any Bank
may each change the address for service of notice upon it by a notice in writing
to the other parties hereto.
ARTICLE IV
COUNTERPARTS
14.1. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart. This Agreement shall be effective when it has been executed by the
Company,
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each Managing Agent and the Banks and each party has notified the Managing
Agents by telex or telephone that it has taken such action.
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IN WITNESS WHEREOF, the Company, the Banks and each Managing Agent have
executed this Agreement as of the date first above written.
XXXXXXXX COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx,
Executive Vice President and Chief
Financial officer
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xx. Xxxxx X. Xxxxxx
Executive Vice President and
Chief Financial Officer
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FLEET BANK, N.A.,
Individually and as Administrative
Agent
By: /s/ Xxxxxxx Xxxx
------------------------------
Title: Vice President
----------------------------
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xx. Xxxxxxx Xxxx
Media Division
Facility A Commitment: $16,900,000
Facility B Commitment: $ 3,250,000
Total Commitment: $20,150,000
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, Individually and as
Documentation Agent
By: /s/ Xxx Xxxxxx
------------------------------
Title: SVP
-----------------------------
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xx. Xxxxx X. Xxxx
Capital Markets Group
Facility A Commitment: $16,900,000
Facility B Commitment: $ 3,250,000
Total Commitment: $20,150,000
-00-
XXX XXXX
By: /s/ Xxxxxxxx Xxxxxxxx
------------------------------
Title: Vice President
----------------------------
000 Xxxxx Xxxxxx, 00xx Xxxxx
X.X. Xxx 00
Xxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxxx Xxxxxxxx
Facility A Commitment: $10,400,000
Facility B Commitment: $ 2,000,000
Total Commitment: $12,400,000
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
Los Angeles Agency
By: Xxxx Xxxxxxxx
------------------------------
Title: Deputy General Manager
----------------------------
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xx. Xxxxxx Xxxxxxxx
Facility A Commitment: $10,400,000
Facility B Commitment: $ 2,000,000
Total Commitment: $12,400,000
-00-
XXXXX XXXX
By: /s/ B. Xxxx Xxxxx
------------------------------
Title: Asst. Vice President
-----------------------------
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Mr. B. Xxxx Xxxxx
Communications/Media Group
Facility A Commitment: $10,400,000
Facility B Commitment: $ 2,000,000
Total Commitment: $12,400,000
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