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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
SFX BROADCASTING, INC.,
BORROWER
THE SUBSIDIARIES OF BORROWER
FROM TIME TO TIME PARTIES HERETO
THE BANK OF NEW YORK,
AS AGENT FOR THE LENDERS AND INDIVIDUALLY AS A LENDER
AND
THE LENDERS FROM TIME TO TIME PARTIES HERETO
DATED AS OF NOVEMBER 22, 1996
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TABLE OF CONTENTS
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ARTICLE I
CERTAIN DEFINITIONS AND TERMS....................... 1
Section 1.1 Defined Terms...................................... 1
Section 1.2 Other Definitional Provisions...................... 26
ARTICLE II
COMMITMENTS AND LOANS............................ 27
Section 2.1 Loans.............................................. 27
Section 2.2 Manner of
Borrowing/Converting/Continuing and
Disbursement...................................... 28
Section 2.3 Interest........................................... 30
Section 2.4 Commitment Fee..................................... 31
Section 2.5 Prepayments........................................ 31
Section 2.6 Amortization of Term Loans after the
Revolving Credit Conversion Date.................. 34
Section 2.7 Non-Receipt of Funds by the Agent.................. 34
Section 2.8 Reimbursement...................................... 35
Section 2.9 Payments........................................... 35
Section 2.10 Booking Loans...................................... 36
Section 2.11 Taxes.............................................. 36
Section 2.12 LIBOR Rate Determination Inadequate................ 39
Section 2.13 Illegality......................................... 39
Section 2.14 Increased Costs.................................... 40
Section 2.15 Effect on Alternate Base Rate Loans................ 41
Section 2.16 Capital Adequacy................................... 41
Section 2.17 Letters of Credit.................................. 41
ARTICLE III
CONDITIONS PRECEDENT............................. 49
Section 3.1 Conditions Precedent to the
Effectiveness of Second Amended and
Restated Credit Agreement......................... 49
Section 3.2 Conditions Precedent to All Loans and
Letters of Credit................................. 53
Section 3.3 Supplemental Indenture............................. 54
Section 3.4 Permitted Acquisitions............................. 54
Section 3.5 Loans.............................................. 54
Section 3.6 Continuations/Conversions.......................... 55
Section 3.7 Materiality of Conditions.......................... 55
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES...................... 55
Section 4.1 Corporate Existence and Authority.................. 55
Section 4.2 Authorization; Binding Obligations................. 55
Section 4.3 Compliance with Laws and Documents;
No Default............................... 56
Section 4.4 Ownership.......................................... 56
Section 4.5 Other Corporate or Trade Names..................... 57
Section 4.6 Fiscal Year........................................ 57
Section 4.7 Business........................................... 57
Section 4.8 Relationship with Lenders.......................... 57
Section 4.9 Financial Statements............................... 57
Section 4.10 Litigation......................................... 58
Section 4.11 Taxes.............................................. 58
Section 4.12 Government Regulation.............................. 58
Section 4.13 Employee Benefit Plans............................. 59
Section 4.14 Purpose of Loan.................................... 60
Section 4.15 Certain Material Agreements........................ 61
Section 4.16 No Consents........................................ 61
Section 4.17 Environmental Laws; Hazardous Materials............ 61
Section 4.18 Chief Executive Office; Location of
Collateral; Assumed and Trade Names;
Priority of Liens................................. 62
Section 4.19 Insurance.......................................... 62
Section 4.20 Real Property; Leases.............................. 62
Section 4.21 Ownership of Stations.............................. 62
Section 4.22 Possession of Franchises, Licenses,
Etc............................................... 62
Section 4.23 FCC, Copyright, Patent and Trademark
Matters........................................... 63
Section 4.24 No Adverse Effect.................................. 63
Section 4.25 No Contribution Obligations........................ 63
Section 4.26 Solvency........................................... 63
Section 4.27 Management Fees.................................... 63
Section 4.28 Disclosure......................................... 63
Section 4.29 License Subsidiaries............................... 64
Section 4.30 Existing Debt...................................... 64
Section 4.31 Existing Subordinated Note Indenture............... 64
Section 4.32 1996 Indenture..................................... 65
ARTICLE V
AFFIRMATIVE COVENANTS............................ 65
Section 5.1 Use of Proceeds.................................... 65
Section 5.2 Books and Records.................................. 65
Section 5.3 Items to be Furnished.............................. 65
Section 5.4 Inspection......................................... 70
Section 5.5 Taxes.............................................. 70
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Section 5.6 Maintenance of Corporate Existence,
Assets, and Business.............................. 70
Section 5.7 Insurance; Condemnation............................ 71
Section 5.8 Compliance with Applicable Laws.................... 72
Section 5.9 Environmental Laws................................. 72
Section 5.10 Further Assurances................................. 72
Section 5.11 Contractual Obligations............................ 73
Section 5.12 New Subsidiaries/Collateral........................ 73
Section 5.13 Further Documentation.............................. 74
ARTICLE VI
NEGATIVE COVENANTS............ 74
Section 6.1 Debt............................................... 75
Section 6.2 Liens.............................................. 75
Section 6.3 Investments........................................ 75
Section 6.4 Deposits........................................... 75
Section 6.5 Limitation on Fundamental Changes.................. 76
Section 6.6 Transactions with Affiliates....................... 76
Section 6.7 Employee Benefit Plans............................. 76
Section 6.8 Capital Expenditures............................... 79
Section 6.9 Operating Lease Obligations........................ 80
Section 6.10 Sale and Leaseback Transactions.................... 80
Section 6.11 Management Agreements.............................. 80
Section 6.12 Restricted Payments................................ 80
Section 6.13 Issuance of Securities............................. 80
Section 6.14 Sale of Assets, Exchange of Assets and
Permitted Acquisitions..000000000................. 81
Section 6.15 Redemption of Notes................................ 83
Section 6.16 Hazardous Substances............................... 83
Section 6.17 New Businesses..................................... 83
Section 6.18 Fiscal Year and Accounting Methods................. 83
Section 6.19 Fixed Charge Coverage Ratio........................ 83
Section 6.20 Pro Forma Interest Expense Ratio................... 83
Section 6.21 Total Leverage Ratio............................... 83
Section 6.22 Senior Leverage Ratio.............................. 84
Section 6.23 Pro Forma Debt Service Ratio....................... 84
Section 6.24 Market Concentration............................... 84
Section 6.25 Material Agreements................................ 85
ARTICLE VII
DEFAULT................. 85
Section 7.1 Payment of Obligations............................. 86
Section 7.2 Certain Covenants.................................. 86
Section 7.3 Other Covenants.................................... 86
Section 7.4 Necessary Authorization and the
Communications Act................................ 86
Section 7.5 Interruption of Operations......................... 86
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Section 7.6 Voluntary Debtor Relief............................ 87
Section 7.7 Involuntary Proceedings............................ 87
Section 7.8 Final Orders....................................... 87
Section 7.9 Default Under Other Debt........................... 87
Section 7.10 Misrepresentation.................................. 87
Section 7.11 Change in Control.................................. 88
Section 7.12 Security Documents................................. 88
ARTICLE VIII
RIGHTS AND REMEDIES.............................. 88
Section 8.1 Remedies On Default................................ 88
Section 8.2 Obligor Liability Absolute......................... 89
Section 8.3 Performance by Lenders............................. 89
Section 8.4 Delegation of Duties and Rights.................... 89
Section 8.5 Lenders Not in Control............................. 89
Section 8.6 Waivers by Lenders................................. 90
Section 8.7 Cumulative Rights.................................. 90
Section 8.8 Application of Proceeds............................ 90
Section 8.9 Diminution in Value of Collateral.................. 91
Section 8.10 Certain Proceedings................................ 91
Section 8.11 Right of Set-off................................... 91
Section 8.12 Sharing of Payments................................ 92
ARTICLE IX
THE AGENT........................................ 92
Section 9.1 Appointment........................................ 92
Section 9.2 Delegation of Duties............................... 92
Section 9.3 Exculpatory Provisions............................. 92
Section 9.4 Reliance by Agent.................................. 93
Section 9.5 Notice of Default.................................. 93
Section 9.6 Non-Reliance on Agent and Other Lenders............ 94
Section 9.7 Indemnification.................................... 94
Section 9.8 Agent in Its Individual Capacity................... 95
Section 9.9 Successor Agent.................................... 95
Section 9.10 Benefits of Article................................ 96
ARTICLE X
MISCELLANEOUS.................................... 96
Section 10.1 Changes in GAAP.................................... 96
Section 10.2 Expenses of Agent and Lenders...................... 96
Section 10.3 Communications..................................... 97
Section 10.4 Form and Number of Documents....................... 98
Section 10.5 Survival........................................... 98
Section 10.6 Confidentiality.................................... 98
Section 10.7 VENUE; SERVICE OF PROCESS.......................... 99
Section 10.8 WAIVER OF JURY TRIAL............................... 99
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Section 10.9 Severability....................................... 100
Section 10.10 Conditions to Effectiveness; Assignment;
and Waiver of Rights.............................. 100
Section 10.11 General Indemnification of Lenders................. 101
Section 10.12 Environmental Indemnification of
Lenders........................................... 102
Section 10.13 Multiple Counterparts.............................. 102
Section 10.14 Parties Bound; Participations;
Assignments....................................... 102
Section 10.15 Entire Agreement................................... 104
Section 10.16 Governing Law...................................... 104
Section 10.17 Subordination of Intercompany
Obligations....................................... 104
Exhibit A - Form of Promissory Note
Exhibit B - Form of Borrower Pledge Agreement
Exhibit C - Form of Borrower Security Agreement
Exhibit D - Form of Compliance Certificate
Exhibit E - Form of Guaranty
Exhibit F - Form of Intercompany Note
Exhibit G - Form of Operating Agreement
Exhibit H - Form of Subsidiary Pledge Agreement
Exhibit I - Form of Subsidiary Security Agreement
Exhibit J - Form of Letter of Credit Reimbursement
Agreement
Exhibit K - Form of Officers' Certificate
Exhibit L - Form of Borrower's Counsel Opinion
Exhibit M - Form of Borrower's FCC Counsel Opinion
Exhibit N - Form of Perfection Certificate
Exhibit O - [Intentionally Left Blank]
Exhibit P - Form of Solvency Certificate
Exhibit Q - Form of Funding Certificate
Exhibit R - Form of Assignment and Acceptance Agreement
Exhibit S - Form of Letter of Credit Request
Exhibit T - Form of Assumption Agreement
Schedule A - Schedule of Commitments
Schedule 1.1(A) - Domestic Lending Offices of Lenders
Schedule 1.1(B) - LIBOR Lending Offices of Lenders
Schedule 1.1(C) - Non-Recurring Expense Adjustments
Schedule 1.1(D) - Permitted Debt
Schedule 1.1(E) - Permitted Liens
Schedule 3.1(c)-1 - Mortgaged Properties
Schedule 3.1(c)-2 - Fixture Filing Locations
Schedule 4.1 - Qualified Jurisdictions
Schedule 4.4(A) - Shareholder Agreements
Schedule 4.4(B) - Capital Stock Rights
Schedule 4.4(C) - Restrictions on Transfer
Schedule 4.4(D) - Subsidiaries
Schedule 4.10 - Litigation
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Schedule 4.11 - Taxes
Schedule 4.15 - Certain Material Agreements
Schedule 4.21 - Stations Owned
Schedule 4.23 - FCC Matters
Schedule 4.29 - Stations Without License Subsidiaries
Schedule 4.30 - Intercompany Debt
Schedule 5.3(n) - Mortgagee Policies of Title Insurance Amounts
Schedule 6.3 - Existing Investments
Schedule 6.6 - Transactions with Affiliates
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT is entered into as
of November 22, 1996 among SFX Broadcasting, Inc., a Delaware corporation
("Borrower"), the Subsidiaries from time to time parties hereto, the Lenders
from time to time parties hereto and The Bank of New York, as Agent for the
Lenders and amends and restates the Amended and Restated Credit Agreement,
dated March 22, 1995, among the Borrower, the subsidiaries from time to time
parties thereto, the Lenders from time to time parties thereto and the Agent,
as amended.
PRELIMINARY STATEMENT
Borrower has requested that the Lenders make loans to it from time to
time in an amount not to exceed (a) $225,000,000 at any time outstanding for
the purpose of (i) making certain radio station acquisitions, (ii) providing
availability for working capital and other general corporate purposes and (iii)
the issuance of standby Letters of Credit pursuant to this Agreement. The
Lenders are prepared to make such loans subject to the terms and conditions set
forth below.
In consideration of the promises, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS AND TERMS
Section 1.1 Defined Terms. For purposes of this Agreement, the
following terms shall have the following meanings:
"ABS" means ABS Communications, L.L.C., a Virginia limited liability
company.
"Acquisition Agreement" means any purchase agreement entered into by
Borrower in connection with a proposed Permitted Acquisition and any LMA
Agreement entered into by Borrower in connection with a proposed Permitted
Acquisition, or either thereof.
"Acquisition Deposit Cap" shall have the meaning ascribed to such a
term in Section 6.4.
"Affiliate" of any Person means (a) any other Person which directly or
indirectly controls, or is under common control with, or is controlled by, such
Person and (b) any officer or director of such Person. As used in this
definition, "control" (including, with its correlative meanings, "controlled
by" and "under common control with") means the possession, directly or
indirectly, of power either to (a) vote 10% or more of the securities or
partnership or other ownership interests of a Person having ordinary voting
power for the election of directors or Persons of equivalent position or (b)
direct or cause the direction of the management or policies of a Person, in
each case, whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise. Notwithstanding the foregoing,
the Obligors shall not be deemed to be Affiliates of each other.
"Agent" means, as the context requires, The Bank of New York in its
capacity as agent for the Lenders under this Agreement and the other Loan
Documents and The Bank of New York in its capacity as the issuer of Letters of
Credit pursuant to this Agreement and the Letter of Credit Reimbursement
Agreement, and its successors and assigns in such capacities as appointed
pursuant to Section 9.9.
"Aggregate Commitment" means the collective obligations of the Lenders
to make the Loans to Borrower pursuant to Article II in an aggregate principal
amount at any one time outstanding not to exceed $225,000,000, as such amount
may be reduced from time to time in accordance with the terms of this
Agreement.
"Agreement" means this Second Amended and Restated Credit Agreement,
including the Schedules and Exhibits, as the same may be amended, modified,
restated, supplemented, renewed, extended, rearranged or substituted from time
to time.
"Alternate Base Rate" or "ABR" means the fluctuating rate of interest
per annum as shall be in effect from time to time equal to the sum of (a) the
higher of (i) the rate of interest announced publicly by the Agent from time to
time as its U.S. dollar prime commercial lending rate (which rate may or may
not be the lowest rate of interest charged by the Agent) and (ii) the sum of
0.5% plus the Federal Funds Rate, plus (b) the Applicable Margin. The Alternate
Base Rate shall be adjusted automatically as of the opening of business on the
effective date of each change in the prime rate or Federal Funds Rate to
account for such change.
"Alternate Base Rate Loan" means any Loan that bears interest at the
Alternate Base Rate.
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"Applicable Lending Office" means, with respect to a Lender, such
Lender's Domestic Lending Office in the case of Alternate Base Rate Loans and
such Lender's LIBOR Lending Office in the case of LIBOR Loans.
"Applicable Letter of Credit Fee Percentage" means, at any time, the
per annum percentage equal to the Applicable Margin with respect to LIBOR Loans
at such time.
"Applicable Margin" will be based on the Total Leverage Ratio and
means the following per annum percentages applicable in the following
situations:
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TOTAL LEVERAGE RATIO
GREATER THAN OR
EQUAL TO LESS THAN ABR + LIBOR +
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6.50x 1.500% 2.750%
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6.00x 6.50% 1.375% 2.625%
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5.50x 6.00x 1.250% 2.500%
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5.00x 5.50x 1.125% 2.375%
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4.50x 5.00x 0.750% 2.000%
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3.50x 4.50x 0.500% 1.750%
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3.50x 0.250% 1.500%
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The Total Leverage Ratio for purposes of determining the Applicable
Margin on Loans made on the Closing Date through the first Calculation Date
occurring after the Closing Date shall be as set forth on the Compliance
Certificate to be delivered to the Lenders pursuant to Section 3.1 (x).
Thereafter, the Applicable Margin payable by Borrower on the Loans outstanding
hereunder from time to time shall be subject to reduction or increase, as
applicable, in accordance with the table above, on a quarterly basis according
to the performance of Borrower for the preceding quarterly period as tested by
the Total Leverage Ratio. Any reduction or increase in the Applicable Margin
provided for herein shall be effective as of the applicable Calculation Date
and, subject to the last two sentences of this definition, continue in effect
to the next succeeding Calculation Date. The Applicable Margin shall be
calculated by Borrower and set forth on the Compliance Certificate to be
delivered pursuant to Section 5.3(b). Promptly after receipt by the Agent of
each quarterly Compliance Certificate that includes Borrower's calculation of
the Total Leverage Ratio and Applicable Margin, the Agent shall notify the
Lenders of the Applicable Margin to be used for the relevant period. If the
Financial Statements of Borrower and the Compliance
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Certificate setting forth the Total Leverage Ratio and the Applicable Margin
are not received by the Agent on or prior to four Business Days after the date
specified in Section 5.3(b), after such fourth Business Day the Applicable
Margin for the relevant period shall be determined as if the Total Leverage
Ratio equals or exceeds 6.50 to 1.00 until the third Business Day after such
Financial Statements and Compliance Certificate are received by the Agent.
Notwithstanding anything above to the contrary, if the Compliance Certificate
required to be delivered pursuant to Section 6.3 prior to any Permitted
Acquisition indicates that the Total Leverage Ratio, after giving effect to
such Permitted Acquisition, would result in an increase or decrease in the
Applicable Margin for the then relevant period, the Applicable Margin shall be
increased or decreased, as applicable, to the applicable percentage amount
determined from such Compliance Certificate as of the date of such acquisition.
"Applicable Proceeds" means any and all proceeds of casualty insurance
or condemnation held by the Agent pursuant to Section 5.7 in connection with a
casualty or condemnation event for which the conditions for use thereof by any
Obligor, as set forth in Section 5.7, shall not have been satisfied.
"Assignee" means any Eligible Assignee of a Lender pursuant to an
Assignment Agreement.
"Assignment Agreement" has the meaning set forth in Section 10.14(c).
"Assignor" has the meaning set forth in Section 10.14(c).
"Authorized Signatory" means one or more officers of Borrower as may
be duly authorized and designated by Borrower in writing to the Agent to
execute documents, agreements and instruments on behalf of Borrower and to
request Loans.
"Available Amount" means, an amount equal to the excess, if any, of
(a) the amount of the Aggregate Commitment minus (b) (x) the aggregate
principal amount of all Loans then outstanding under such commitment, plus (y)
the outstanding amount of Letter of Credit Obligations.
"Borrower" has the meaning set forth in the introductory paragraph of
this Agreement.
"Borrower Pledge Agreement" means the Amended and Restated Pledge
Agreement dated the date hereof, executed and delivered by Borrower and the
Agent, substantially in the form of Exhibit B, as such agreement may be
amended, modified, restated, supplemented, renewed, extended, rearranged or
substituted from time to time.
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"Borrower Security Agreement" means the Second Amended and Restated
Security Agreement, dated the date hereof, executed and delivered by Borrower,
substantially in the form of Exhibit C, as such agreement may be amended,
modified, restated, supplemented, renewed, extended, rearranged or substituted
from time to time.
"Borrowing Date" means any Business Day prior to the Revolving Credit
Conversion Date on which the Borrower desires to borrow any Loans. Such
"Borrowing Date" shall be specified in each notice of borrowing pursuant to
Section 2.2(a) and 2.2(b).
"Broadcast Cash Flow ("BCF")" means Operating Cash Flow plus all
corporate expenses.
"Budget" has the meaning set forth in Section 5.3(d).
"Business Day" means (a) for all purposes other than as provided in
clause (b) below, any day except Saturday, Sunday and any day that is a legal
holiday or a day on which Lenders are authorized or required to be closed in
New York City and (b) with respect to all notices and determinations in
connection with any borrowings consisting of or payments of principal and
interest in respect of LIBOR loans, any day that is a Business Day described in
clause (a) above and that is also a day for trading between prime banks in the
London interbank market.
"CAA" means the Clean Air Act, 42 U.S.C.ss.ss.7401 et seq., as
amended.
"CERCLA" means the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, 42 U.S.C. xx.xx. 9601 et seq., as amended.
"CWA" means the Clean Water Act, 33 U.S.C. xx.xx. 1251 et seq., as
amended.
"Calculation Date" means for any fiscal quarter the fifth Business Day
after the date that the quarterly Financial Statements are required to be
delivered to the Lenders pursuant to Section 5.3(b).
"Capital Expenditure" means any expenditure (net of any casualty
insurance proceeds or condemnation awards used to replace fixed assets
following a casualty event or condemnation with respect thereto) by any Person
that, in conformity with GAAP, is required to be accounted for as a capital
expenditure on the consolidated balance sheet of Borrower.
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"Capital Lease" means any obligations in respect of any lease of any
property (whether real, personal or mixed) that, in conformity with GAAP, are
required to be capitalized on the consolidated balance sheet of Borrower.
"Change of Control" means (a) a "change of control", as such term is
defined in the Existing Subordinated Note Indenture, (b) a "change of control",
as such term is defined in the 1996 Indenture, (c) the failure of Xxxxxx F.X.
Sillerman ("Sillerman"), any Affiliate of Sillerman, or together with any
executor, heir or successor appointed to take control of Sillerman's affairs in
the event of his death, disability or incapacity, to own directly or
indirectly, in the aggregate, of record and beneficially, more than 35% of the
voting power of all issued and outstanding capital stock of the Borrower, or
(d) if within 90 days after the date Sillerman ceases to be employed by
Borrower in his present capacity, a replacement for Sillerman reasonably
satisfactory to the Required Lenders has not been appointed.
"Charter Documents" means with respect to any Person (a) the
articles/certificate of incorporation (or the equivalent organizational
documents) of such Person, (b) the bylaws (or the equivalent governing
documents) of such Person and (c) any document setting forth the designation,
amount and relative rights, limitations and preferences of any class or series
of such Person's capital stock or of any rights in respect of such Person's
capital stock (or the equivalent ownership interest).
"Class A Common Stock" means the Class A Common Stock of the Borrower.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended, and all
regulations promulgated and rulings issued thereunder.
"Collateral" has the meaning set forth in Section 5.12(b).
"Commitment" means, as to any Lender, such Lender's Loan Commitment in
the amount set forth opposite such Lender's name under the heading "Commitment"
on Schedule A attached hereto, as such amount may be reduced from time to time.
"Commitment Fee" has the meaning set forth in Section 2.4.
"Communications Act" means the Communications Act of 1934, as amended,
and the rules and regulations and published policies thereunder, as from time
to time in effect.
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"Compliance Certificate" means a certificate executed by the Chief
Executive Officer, Chief Financial Officer, President, Treasurer, Controller or
any Executive Vice President of Borrower substantially in the form of Exhibit D
and containing such other certifications, statements, calculations,
explanations and conclusions as the Agent or the Required Lenders may
reasonably request with respect to compliance with any or all of the covenants
and conditions contained in this Agreement or any other Loan Document.
"Contractual Obligations" of any Person means any provision of any
security issued by such Person or indenture, mortgage, deed of trust, security
agreement, lease agreement, guaranty, contract, undertaking, instrument or
other agreement to which such Person is a party or by which it or any of its
property, assets or revenues is bound or to which any of its property, assets
or revenues is subject, including, without limitation, with respect to the
Obligors, obligations in respect of Material Leases and LMA Agreements.
"Conversion", "Convert", "Converted" and "Converting" each refers to a
conversion of Alternate Base Rate Loans into LIBOR Loans or LIBOR Loans into
Alternate Base Rate Loans.
"Conversion Amount" means the aggregate principal amount outstanding
under the Revolving Credit Loans on the Revolving Credit Conversion Date.
"Current Date" means any date not more than thirty days prior to the
date of this Agreement.
"Current Financials" means the audited consolidated Financial
Statements of Borrower and its Subsidiaries for the fiscal year ended December
31, 1995 and the unaudited consolidated Financial Statements of Borrower and
its Subsidiaries as at June 30, 1996.
"Customary Permitted Liens" means Liens on the property or assets of
any Person (other than Liens arising pursuant to any Environmental Law and
Liens in favor of the PBGC):
(a) with respect to the payment of Taxes, assessments or
governmental charges or levies which are not yet due or which are
being contested in good faith by appropriate proceedings and with
respect to which adequate reserves are being maintained in accordance
with GAAP;
(b) of landlords arising by statute and Liens of suppliers,
mechanics, carriers, materialmen, warehousemen or workmen, banker's
liens and other Liens imposed by Law created in the ordinary course of
business of such Person for amounts
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not yet due or which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with GAAP;
(c) incurred on pledges and deposits made in the ordinary
course of business of such Person in connection with worker's
compensation, unemployment insurance, pensions or other types of
social security benefits or to secure the performance of statutory
obligations or to secure the performance of bids, tenders, sales,
contracts (other than for the repayment of borrowed money), surety,
warranty, advance payment, appeal, customs, performance bonds and
similar obligations;
(d) to secure the payment of all or a part of the purchase
price of property or assets used in the ordinary course of business,
provided that (a) such property or assets are used in the same or
similar line of business as the Borrower or any Obligor is engaged in
on the date hereof and (b) at the time of incurrence of any such Lien,
the aggregate principal amount of the obligations secured by such Lien
does not exceed the cost of the assets or property (or portions
thereof) so acquired and attaches to such assets or property within
120 days of the purchase thereof;
(e) arising with respect to zoning restrictions, licenses,
covenants, building restrictions and other similar charges or
encumbrances on the use of real property of such Person which do not
materially interfere with the ordinary conduct of such Person's
business;
(f) any interest or title of a lessor under any lease
permitted hereunder;
(g) constituting the filing of notice financing statements of
a lessor's rights in and to personal property leased to such Person in
the ordinary course of such Person's business; and
(h) defects and irregularities in titles, survey exceptions,
encumbrances, easements or reservations of others for rights-of-way,
roads, pipelines, railroad crossings, services, utilities or other
similar purposes, outstanding mineral rights or reservations
(including rights with respect to the removal of material resource)
which do not materially diminish the value of the surface estate,
assuming usage of such surface estate similar to that being carried on
by any Obligor as of the date of this Agreement.
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"Dallas Acquisition" means the Asset Purchase Agreement between
Cardinal Communications Partners, L.P., ("Cardinal"), SFX Broadcasting of Texas
(KTCK), Inc. and the Borrower, dated as of April 24, 1995 for the purchase by
Borrower from Cardinal of certain real and personal tangible and intangible
assets used by Cardinal in the operation of radio broadcast station KTCK-AM in
Dallas, Texas, together with the Necessary Authorizations issued by the FCC for
the operation of such station.
"Debt" of any Person means, without duplication (a) (i) any liability
of such Person for borrowed money (including, without limitation, reimbursement
obligations with respect to surety bonds, letters of credit, bankers
acceptances and similar instruments), for the deferred purchase price of
property or services, under conditional sale or other title retention
agreements relating to property purchased by such Person or in respect of which
interest charges are customarily paid (other than trade payables that are not
more than 90 days past due or accrued account liabilities other than for
borrowed money arising in the ordinary course of business of such Person in
connection with the purchase of property or services), (ii) any liability of
such Person evidenced by notes, bonds, debentures or similar instruments, (iii)
any liability secured by any Lien on any property of such Person, whether or
not such Person has assumed such liability or otherwise become liable for the
payment thereof and (iv) any liability of such Person in respect of Capital
Leases, (b) any liability of such Person (other than trade payables that are
not more than 90 days past due, reserves for deferred income taxes and accrued
account liabilities other than for borrowed money arising in the ordinary
course of business of such Person) that would be included as a liability on a
balance sheet of such Person prepared in accordance with GAAP and (c) the full
amount of any liability of others described in the preceding clause (a) or (b)
in respect of which such Person has incurred, assumed or acquired a liability
by means of a Guaranty Obligation.
"Debt Service" means, for the most recently completed four fiscal
quarters, the sum of (a) Interest Expense, (b) the scheduled principal
amortization of Total Funded Debt, (c) the scheduled redemption of Series B
Preferred Stock, and (d) obligations due during such period as a result of the
exercise of any put or call rights with respect to the Series C Preferred
Stock.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, suspension
of payments or similar debtor relief Laws from time to time in effect affecting
the Rights of creditors generally.
-9-
"Default" means the occurrence of any event which, with notice or
lapse of time or both, could become an Event of Default.
"Default Rate" means a per annum rate of interest equal to the sum of
the Alternate Base Rate or the LIBOR Rate, as applicable, plus 2.0% per annum.
"Dollars" and "$" means lawful currency of the United States of
America.
"Domestic Lending Office" means, with respect to a Lender or the
Letter of Credit Issuing Bank, the office designated as its Domestic Lending
Office on Schedule 1.1(A) and such other office of such Lender or any of its
Affiliates or the Letter of Credit Issuing Bank hereafter designated by notice
to Borrower and the Agent.
"Eligible Assignee" means (a) a Lender or any Affiliate of a Lender,
(b) a commercial bank reasonably acceptable to the Agent organized under the
Laws of the United States of America or any state thereof and having a combined
capital, surplus and undivided profits of not less than $100,000,000 or (c) a
finance company, savings and loan association, savings bank, mutual fund,
pension fund, insurance company or other financial institution acceptable to
the Agent.
"Environmental Law" means any Law (a) pertaining to air emissions,
water discharge, noise emissions, solid or liquid waste disposal, hazardous
wastes or materials, industrial hygiene, (b) pertaining to other environmental
matters or conditions on, under, or about real property or any portion thereof
or otherwise regulating, relating to or imposing liability or standards of
conduct concerning protection of human health or the environment, including,
without limitation, the CAA, CWA, CERCLA, OSHA, RCRA and similar Laws of any
Tribunal, as such Laws may be amended or supplemented from time to time or (c)
arising under such common law doctrines as trespass or nuisance that involves
environmental, health or safety matters.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the regulations promulgated and rulings issued thereunder.
"ERISA Affiliate" means any Subsidiary of Borrower or trade or
business (whether or not incorporated) which is a member or has been a member
of a group of which Borrower or any Subsidiary is or was a member and which is
or was under common control with Borrower or any Subsidiary within the meaning
of section 414 of the Code.
-10-
"Event of Default" has the meaning set forth in Article VII.
"Excess Cash Flow" means Operating Cash Flow (before any adjustments
to reflect acquisitions, sales and exchanges during such period) for each
fiscal year of the Borrower less the sum of the following during such fiscal
year: (a) Fixed Charges and (b) voluntary prepayments of the Term Loan as
described in Section 2.5.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statutes.
"Existing Subordinated Note Indenture" means that certain Indenture
dated as of October 7, 1993 between Borrower and Chemical Bank, as trustee, as
the same may be amended, modified, restated, supplemented, renewed, extended,
rearranged or substituted from time to time.
"Existing Subordinated Notes" means the 11.375% Senior Subordinated
Notes, due October 1, 2000 issued by Borrower pursuant to the Existing
Subordinated Note Indenture.
"FCC" means the Federal Communications Commission or any Tribunal
succeeding to the functions thereof.
"Federal Funds Rate" means for any day the rate per annum (rounded
upwards if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate quoted to the
Agent on such day on such transactions as determined by the Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System.
"Final Order" means an action by the FCC or other Tribunal that has
not been vacated, reversed, stayed, enjoined, set aside, annulled or suspended
and with respect to which no requests by any Person are pending for
administrative or judicial review, reconsideration, appeal or stay and the time
for filing any such requests and the time to review or comment with respect to
any such action and for the FCC or other Tribunal to set aside such action on
its own order have expired.
-11-
"Financial Statements" means balance sheets, profit and loss
statements, statements of cash flow, schedules of sources and applications of
funds and such other statements and schedules of financial data of any kind
and, when applicable, prepared in accordance with GAAP.
"Fixed Charge Coverage Ratio" means as of any date of determination
the ratio of (a) Operating Cash Flow for the most recently ended four fiscal
quarters to (b) Fixed Charges.
"Fixed Charges" means for the most recently completed four fiscal
quarters for the Borrower and its subsidiaries on a consolidated basis, the sum
of the following paid during such fiscal period: (a) Debt Service, (b) cash
income taxes, (c) capital expenditures, (d) all dividends with respect to the
Series C Preferred Stock and (e) all dividends with respect to the Series D
Preferred Stock.
"Funding Certificate" means a Funding Certificate substantially in the
form of Exhibit Q.
"GAAP" means generally accepted accounting principles, applied on a
consistent basis (a) as set forth in opinions of the accounting principles
board of the American Institute of Certified Public Accountants ("AICPA") and
in the Financial Accounting Standards Board statements that are applicable in
the circumstances as of the date in question and (b) where not inconsistent
with such opinions and statements, as set forth in other AICPA publications and
guidelines. The requisite that such principles be applied on a consistent basis
means, subject to Section 10.1, that the accounting principles in a current
period are comparable in all material respects to those applied in preparation
of the audited Financial Statements of Borrower for the fiscal year ended
December 31, 1995 or, as the case may be, comparable in all material respects
to those applied in the preceding period.
"Guaranty" means the Amended, Restated and Consolidated Guaranty,
dated the date hereof, substantially in the form of Exhibit E, executed and
delivered by each Subsidiary of Borrower, guaranteeing payment and performance
of the Obligations, as the same may be amended, modified, restated,
supplemented, renewed, extended, rearranged or substituted from time to time.
"Guaranty Obligation" means for any Person, without duplication, any
obligation, contingent or otherwise, of such Person guaranteeing or otherwise
becoming liable for any Debt of any other Person ("primary obligor") in any
manner, whether directly or indirectly, and including, without limitation, any
obligation of such Person, direct or indirect (a) to purchase or pay, or to
advance or supply funds for the purchase or payment of such Debt or to purchase
(or to advance or supply funds for the
-12-
purchase of) any security for the payment of such Debt, (b) to purchase
property, securities or services for the purpose of assuring the owner of such
Debt of the payment of such Debt or (c) to maintain working capital, equity
capital or other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Debt; provided that the
term Guaranty Obligation shall not include endorsements for collection or
deposit, in the ordinary course of the endorser's business.
"Hazardous Substance" means any substance, product, waste or other
material that is or becomes listed, regulated or addressed under any
Environmental Law, including, without limitation (a) any substance included
within the definition of "hazardous waste" pursuant to section 1004 of RCRA and
implementing regulations, (b) any substance included within the definition of
"hazardous substance" pursuant to section 101 of CERCLA and implementing
regulations and (c) any pollutant listed under the CAA, the CWA or implementing
regulations pursuant to the CAA or the CWA.
"Indemnified Party" has the meaning set forth in Section 10.11.
"Intercompany Debt" means any and all Debt evidenced by Intercompany
Notes.
"Intercompany Note" means a promissory note in the form of Exhibit F
executed by an Obligor and payable to the order of any other Obligor,
evidencing loans, advances or other extensions of credit heretofore or
hereafter made by any Obligor to any other Obligor, together with any
amendments, modifications, supplements, renewals, extensions, increases,
restatements, rearrangements or substitutions thereto or thereof from time to
time.
"Interest Expense" means the sum of all interest expense and
Commitment Fees incurred with respect to Total Funded Debt.
"Interest Period" means for any LIBOR Loan the period beginning on the
date the Loan is made or on the date of the Conversion of any Alternate Base
Rate Loan into a LIBOR Loan and ending one, two, three or six months after such
date as Borrower shall elect pursuant to Section 2.2(b) and, thereafter, with
respect to the continuation of such LIBOR Loan as a LIBOR Loan at the end of
the applicable Interest Period, each subsequent Interest Period for such Loan
shall begin on the last day of such immediately preceding Interest Period and
end on the last day of the one, two, three or six-month period selected by
Borrower therefor pursuant to Section 2.2(c). Notwithstanding the foregoing, no
Interest Period on a Revolving Credit Loan may extend past the Revolving Credit
Conversion Date and no Interest Period on a Term Loan may extend past the
Maturity Date. Whenever the last day of any Interest Period would otherwise
occur on a day other
-13-
than a Business Day, the last day of such Interest Period shall be extended to
the next succeeding Business Day, provided that if such extension would cause
the last day of such Interest Period to occur in the next following calendar
month, the last day of such Interest Period shall occur on the next preceding
Business Day. LIBOR Loans made by the Lenders on the same date and having the
same Interest Period shall, for purposes of Section 2.1(a), be treated as
having a single Interest Period.
"Law" means all applicable statutes, laws, ordinances, regulations,
rules, guidelines, orders, writs, injunctions, or decrees of any state,
commonwealth, nation, territory, province, possession, township, county,
parish, municipality or Tribunal.
"Lender" means each financial institution shown on the signature pages
hereof as long as such financial institution retains its Commitment or is owed
any part of the Obligations (including the Agent in its individual capacity as
a Lender) and each Eligible Assignee that hereafter becomes a party to this
Agreement pursuant to Section 10.14 as long as it retains its Commitment or is
owed any part of the Obligations.
"Letter of Credit or Letters of Credit" has the meaning set forth in
Section 2.17(a).
"Letter of Credit Issuing Bank" means the Agent.
"Letter of Credit Obligations" means, at the time of any
determination, the sum of (a) the Reimbursement Obligations, plus (b) the
Letter of Credit Undrawn Amount.
"Letter of Credit Reimbursement Agreement" means a Letter of Credit
Reimbursement Agreement in the form of Exhibit J.
"Letter of Credit Request" has the meaning set forth in Section
2.17(e).
"Letter of Credit Undrawn Amount" means, at the time of any
determination, the aggregate amount issued and available for drawing under all
outstanding Letters of Credit.
"LIBOR Lending Office" means, with respect to a Lender, the office
designated as its LIBOR Lending Office on Schedule 1.1(B) and such other office
of such Lender or any of its Affiliates hereafter designated by notice to
Borrower and the Agent.
"LIBOR Loan" means any Loan that bears interest at the LIBOR Rate.
-14-
"LIBOR Rate" means a per annum rate (rounded upwards, if necessary, to
the nearest 1/100 of 1%) equal to the rate determined pursuant to the following
formula:
London Interbank Rate
LIBOR Rate = ---------------------------------- + Applicable Margin
100%-LIBOR Reserve Percentage
Once determined, the LIBOR Rate shall be subject to Article II and
market availability and shall remain unchanged during the applicable Interest
Period, except for changes to reflect adjustments in the LIBOR Reserve
Percentage.
"LIBOR Reserve Percentage" means, with respect to any Interest Period,
the percentage determined by the Agent to be the reserve requirement in effect
for the Agent from time to time during such Interest Period, including any
basic, supplemental and emergency reserves (expressed as a percentage)
applicable to a member bank of the Federal Reserve System in respect of
"eurocurrency liabilities" under Regulation D of the Federal Reserve Board.
"License Subsidiaries" means any Subsidiary of Borrower in existence
on the Closing Date or hereafter organized by Borrower for the sole purpose of
holding FCC licenses and other authorizations.
"Lien" means any lien, security interest, pledge, collateral
assignment or other charge or encumbrance of any kind, or any other type of
preferential arrangement, upon or with respect to any property, including,
without limitation, the Rights of a vendor, lessor or similar party under any
conditional sales agreement (or other title retention agreement or lease
substantially equivalent thereto) and any other Rights or other arrangement
with any creditor to have its claim satisfied out of any property or assets, or
the proceeds therefrom, prior to the general creditors of the owner thereof.
"Litigation" means any proceeding, claim, lawsuit or investigation
conducted or threatened by or pending before any Tribunal or pending before any
public or private arbitration board or panel.
"LMA Agreements" means any time brokerage agreement, local marketing
agreement, local market affiliation agreement, joint sales agreement, joint
operating agreement or joint operating venture for the operation of a radio
station or related or similar agreements entered into, directly or indirectly,
between any Obligor and any other Person which are (i) in existence at closing
or (ii) entered into in connection with acquisitions, asset sales
-15-
or asset exchanges not otherwise prohibited by the terms of this Agreement.
"Loan Documents" means this Agreement, the Notes, the Security
Documents, the Letter of Credit Reimbursement Agreement, UCC financing
statements, any agreements between any Obligor and the Agent or any Lender in
respect of fees or the reimbursement of costs and expenses or relating to any
interest rate swap agreements, interest rate cap agreements, interest rate
collar agreements or any similar agreements or arrangements designed to hedge
the risk of variable interest rate volatility and any and all other documents,
instruments, certificates and agreements now or hereafter executed or delivered
by any Obligor pursuant to or in connection with any of the foregoing, and any
and all present or future amendments, modifications, supplements, renewals,
extensions, increases, restatements, rearrangements or substitutions from time
to time of all or any part of any of the foregoing.
"Loans" means collectively, Alternate Base Rate Loans and LIBOR Loans.
"London Interbank Rate" means with respect to LIBOR Loans for the
relevant Interest Period the per annum rate of interest determined by the Agent
as the per annum rate of interest quoted by the Agent at which Dollar deposits
are offered by the Agent to prime banks in the London interbank market at
approximately 11:00 a.m., London time, two Business days prior to the first day
of such Interest Period, which deposits are for a period equal to such Interest
Period and in an amount substantially equal to the Agent's (in its capacity as
a Lender) Specified Percentage of such LIBOR Loans.
"Material Adverse Effect" means a material adverse change in or effect
on (a) the business, condition (financial or otherwise), operations,
performance, property or assets, or prospects of Borrower and its Subsidiaries
taken as a whole since December 31, 1995 or (b) the ability of any Obligor to
perform its obligations under any Loan Document or the 1996 Indenture.
"Material Lease" means each lease of real property by any Obligor, as
lessee, sublessee or lessor, which is a radio studio location or antenna, tower
or transmitter site.
"Maturity Date" means the earlier of September 30, 2003 or any date on
which the Obligations become due and payable in full, whether by acceleration
or otherwise.
"MMR Merger" means the acquisition of all the shares of capital stock
of Multi-Market Radio, Inc. ("MMR"), including the payoff of certain
outstanding Debt of MMR in connection therewith.
-16-
"MMR Warrants" means (i) MMR's outstanding Class A and Class B
Warrants issued pursuant to the Warrant Agreement dated as of March 23, 1994 by
and among MMR, American Stock Transfer & Trust Company, X.X. Xxxxx Investment
Banking Corp. and Americorp Securities, Inc. or (ii) warrants issued pursuant
to the Unit Purchase Option provided for in such agreement.
"Mortgages" means each deed of trust, leasehold deed of trust,
mortgage, deed to secure debt, leasehold mortgage, collateral assignment of
leases or other real estate security document securing the Obligations or any
portion thereof and all modifications and supplements to any of the foregoing
that are executed or delivered pursuant to or in connection with any of the
Loan Documents, and any and all amendments, modifications, restatements,
supplements, renewals, extensions, rearrangements or substitutions from time to
time of any of the foregoing.
"Multiemployer Plan" means a multiemployer plan as defined in sections
3(37) or 4001(a)(3) of ERISA or section 414 of the Code to which Borrower or
any ERISA Affiliate is making, or has made, or is accruing, or has accrued, an
obligation to make contributions.
"Multiple Employer Plan" means any employee benefit plan within the
meaning of section 3(3) of ERISA, other than a Multiemployer Plan, that is
subject to Title IV of ERISA and to which Borrower or any ERISA Affiliate and
an employer other than an ERISA Affiliate or Borrower contribute or have an
obligation to contribute.
"Necessary Authorization" means any license, permit, consent,
franchise, order approval or authorization from, or any filing or registration
with, any Tribunal (including, without limitation, the FCC) necessary or
appropriate to the conduct of any Obligor's business or for the ownership,
maintenance and operation by any Obligor of its stations and other properties
or to the performance by any Obligor of its obligations under any LMA Agreement
to which it is a party.
"Net Cash Proceeds" means cash proceeds received from a disposition or
an exchange after deduction of taxes payable in cash in connection therewith
and net of reasonable transaction expenses.
"New Notes" means the $450,000,000 Senior Subordinated Notes, due May
15, 2006 issued by the Borrower pursuant to the 1996 Indenture.
"1995 Agreement" means the Amended and Restated Credit Agreement,
dated March 22, 1995, that this Agreement amends and restates.
-17-
"1996 Indenture" means that certain Indenture dated as of May 31, 1996
between Borrower and Chemical Bank, as trustee, as the same may be amended,
modified, restated, supplemented, renewed, extended, rearranged or substituted
from time to time.
"Notes" means Borrower's promissory notes substantially in the form of
Exhibit A, payable to the order of the respective Lenders, evidencing the
Loans, together with any and all amendments, modifications, restatements,
supplements, renewals, extensions, rearrangements or substitutions thereof from
time to time.
"Obligations" means (a) all obligations or liabilities of any form or
nature (whether matured or unmatured, fixed or contingent, liquidated or
unliquidated, joint, several or joint and several) of any Obligor to the Agent,
the Letter of Credit Issuing Bank or any Lender arising under or related to the
Loan Documents, as they may be amended, modified, renewed, extended, restated,
supplemented, increased, rearranged or substituted from time to time and (b)
all obligations or liabilities of any Obligor for losses, damages, expenses or
any other liabilities of any kind that any Lender may suffer by reason of a
breach by any Obligor of any obligation, covenant or undertaking with respect
to any Loan Document, whether any such obligations or liabilities are direct,
indirect, fixed, contingent, liquidated, unliquidated, joint, several or joint
and several or was, prior to acquisition thereof by the Lenders, owed to some
other Person.
"Obligor" means any of Borrower or its Subsidiaries and "Obligors"
means, collectively, Borrower and its Subsidiaries.
"Operating Agreement" means an agreement substantially in the form of
Exhibit G.
"Operating Cash Flow" or "OCF" means for the most recently completed
twelve months, the sum of: (a) broadcast revenues (exclusive of reciprocal
revenues) including revenues of any company or assets acquired pursuant to a
Permitted Acquisition minus (b) expenses (excluding depreciation, amortization,
reciprocal expenses, interest expense and income tax expense), plus (c)
non-recurring expense items or non-cash expense items mutually agreed upon by
the Borrower and the Required Lenders; less (d) the amount of any cash payments
related to non-cash charges that were added back in determining Operating Cash
Flow pursuant to (c) above in any prior period. The results of operations,
including any non-recurring provision or cash payments, made in connection with
the Texas Rangers Contract shall not be considered in the calculation of
Operating Cash Flow.
Except in the calculation of the Fixed Charge Coverage Ratio,
Operating Cash Flow will be adjusted to reflect acquisitions
-18-
and dispositions as if they had occurred at the beginning of such period.
BCF from radio broadcasting stations subject to LMA Agreements which
are to be included in the calculation of BCF shall not exceed 10% of BCF from
stations owned by the Borrower which are not subject to LMA Agreements.
Operating Cash Flow will be adjusted on a pro forma basis for certain
non-recurring expenses as set forth on Schedule 1.1(c).
"Operating Lease" means any lease that is an operating lease in
accordance with GAAP and that has an initial or remaining noncancellable lease
term in excess of one year.
"Operating Subsidiary" means any Obligor that manages and operates a
Station or any other station acquired pursuant to a Permitted Acquisition.
"OSHA" means the Occupational Safety and Health Act, 29 U.S.C.
ss.ss.651 et seq., as amended.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereof, established pursuant to ERISA.
"Perfection Certificate" has the meaning set forth in Section 3.1(y).
"Permitted Acquisition" means any of the following (a) the MMR Merger,
(b) the acquisitions of WSTZ-FM and WZRX-AM in Jackson, Mississippi, (c) the
acquisition of stations WVEZ-FM, WWKY-AM and WTFX-FM in Louisville, Kentucky,
(d) the acquisition of WHSL-FM in Greensboro, NC, (e) the acquisition of
stations WVGO-FM, WLEE-FM, WKHK-FM and WBZU-FM in Richmond, VA, (f)
acquisitions in Principal Markets, (g) acquisitions in top 75 Arbitron markets
made when the Total Leverage Ratio is less than 5.50 to 1.00 before and after
giving effect thereto, and (h) all other acquisitions approved by the Required
Lenders.
"Permitted Debt" means (a) the Obligations, (b) Intercompany Debt, (c)
Debt of any Obligor listed on Schedule 1.1(D) (together with any refinancings,
substitutions or replacements thereof, provided that any such refinancings,
substitutions or replacements shall not increase the principal amount of such
Debt unless such increase would otherwise be permitted pursuant to clause (d)
below, the stated maturity date of any such Debt shall not be shortened to a
date that is less than one year after September 30, 2003 and the economic terms
of any such refinancings, substitutions or replacements shall not otherwise be
more onerous than the terms of such Debt being refinanced, substituted or
replaced) and (d) other Debt of Borrower
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in an aggregate amount which does not exceed $10,000,000 at any time
outstanding.
Permitted Debt also means the obligations referred to in clause (d) of
Customary Permitted Liens above, so long as the amount of Debt so incurred does
not exceed the cost of such assets or property.
"Permitted Investments" means (a) investments in obligations of the
United States of America maturing within one year from the date of acquisition,
(b) certificates of deposit issued by commercial banks organized under the Laws
of the United States of America or any state thereof and having a combined
capital, surplus and undivided profits of not less than $100,000,000, (c)
investments in commercial paper, maturing not more than 90 days after the date
of issue, issued by a Person (other than an Affiliate) with a rating of "P-1"
(or its then equivalent) according to Xxxxx'x Investors Service, Inc., "A-1"
(or its then equivalent) according to Standard & Poor's Corporation, or a
better rating, (d) investments in Wholly-Owned Subsidiaries identified on
Schedule 4.4(D) and in Wholly-Owned Subsidiaries organized in connection with
Permitted Acquisitions, and (e) the investment in ABS equal to at least a 96%
interest therein.
"Permitted Liens" means (a) the Liens in favor of the Agent for the
benefit of the Lenders, (b) the Liens described on Schedule 1.1(E), (c)
Customary Permitted Liens and (d) Liens shown on the mortgage policies of title
insurance issued in accordance with Section 5.3(n) hereof.
"Person" means any individual, sole proprietorship, unincorporated
organization, corporation, association, partnership, joint venture, trust,
institution, Tribunal, or other entity.
"Plan" means an employee pension benefit plan defined in Section 3(2)
of ERISA in respect of which Borrower or any ERISA Affiliate is, or within the
immediately preceding five years was, an "employer" as defined in Section 3(5)
of ERISA.
"Pledge Agreements" means the Borrower Pledge Agreement and the
Subsidiary Pledge Agreements.
"Preferred Stock" means Series B Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock.
"Principal Market" means a market in which the Borrower owns two or
more FM radio stations.
"Pro Forma Debt Service" means the sum of (a) Pro Forma Interest
Expense, (b) the scheduled current maturities of Total Funded Debt, (c) the
scheduled redemption of Series B Preferred
-20-
Stock, and (d) obligations due as a result of the exercise of any put or call
rights with respect to the Series C Preferred Stock (but in no event more than
$2,000,000), each measured for the four fiscal quarters immediately succeeding
the date of determination.
"Pro Forma Debt Service Ratio" means as of any date of determination
the ratio of (a) Operating Cash Flow for the most recently ended four fiscal
quarters to (b) Pro Forma Debt Service.
"Pro Forma Interest Expense" means Interest Expense calculated for the
four fiscal quarters following the calculation quarter, giving effect to (a)
the Total Funded Debt outstanding and the rates in effect as of the date of
determination and (b) the amortization scheduled during such period.
"Pro Forma Interest Expense Ratio" means as of any date of
determination the ratio of (a) Operating Cash Flow for the most recently ended
four fiscal quarters to (b) Pro Forma Interest Expense.
"Quarterly Date" means the last Business Day of each March, June,
September and December, commencing December 31, 1996.
"Quarterly Percentage Reduction" has the meaning set forth in Section
2.6.
"RCRA" means the Resource Conservation and Recovery Act, 42 U.S.C.
ss.ss.6901 et seq., as amended.
"Reimbursement Obligations" means, at the time of any determination,
all matured and unpaid reimbursement or repayment obligations of Borrower to
the Agent with respect to Letters of Credit.
"Reinvested Proceeds" means the Net Cash Proceeds from station sales
or exchanges which are used to acquire additional radio stations through a
merger, acquisition or exchange in accordance with the covenants during the
Reinvestment Period.
"Reinvestment Period" means 360 days from the date that proceeds from
a station sale or exchange are received by the Borrower.
"Required Lenders" means, on any date of determination, any
combination of the Lenders that hold in the aggregate 51.00% or more of the sum
of the aggregate principal amount of Loans then outstanding; provided, however,
that if there are no Loans outstanding hereunder, "Required Lenders" shall mean
any combination of the Lenders whose Specified Percentages aggregate at least
51.00%.
-21-
"Restricted Payment" means as to any Person (a) any declaration or any
payment of any dividend or other distribution, direct or indirect, on account
of any shares of any class of capital stock or other equity interest of such
Person now or hereafter outstanding, except a dividend payable solely in shares
of that class of stock or in any junior class of stock to the holders of that
class, (b) any (i) direct or indirect redemption, retirement, purchase or other
acquisition for value of or (ii) direct or indirect purchase, payment or
sinking fund or similar deposit for the redemption, retirement, purchase or
other acquisition for value of or to obtain the surrender of any shares of any
class of capital stock of such Person now or hereafter outstanding or any
warrants, options or other rights to acquire or subscribe for purchase of
shares of any class of capital stock of such person or any of its Subsidiaries
now or hereafter outstanding.
"Revolving Credit Conversion Date" means September 30, 1998.
"Revolving Credit Loans" shall have the meaning ascribed to such term
in Section 2.1(a).
"Rights" means rights, remedies, powers and privileges.
"Sale and Leaseback Transaction" means a transaction whereby any
Obligor becomes liable with respect to any lease, whether an Operating Lease or
a Capital Lease, or any property (whether real, personal or mixed), whether now
owned or hereafter acquired, which (a) any Obligor has sold or transferred or
is to sell or transfer to any other Person or (b) any Obligor intends to use
for substantially the same purposes as any other property which has been or is
to be sold or transferred by any Obligor to any other Person in connection with
such lease.
"Scheduled Asset Sales" means the sale of any of the following: (a)
stations WVEZ-FM, WWKY-AM and WTFX-FM in Louisville, Kentucky, and (b) station
KTCK-AM in Dallas, Texas.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and any successor statute.
"Security Agreements" means the Borrower Security Agreement and the
Subsidiary Security Agreement.
"Security Documents" means the Security Agreements, the Pledge
Agreements, the Mortgages, the Guaranty and any and all other agreements, deeds
of trust, mortgages, chattel mortgages, security agreements, pledges,
guaranties, assignments of proceeds,
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assignments of income, assignments of contract rights, assignments of
partnership interest, assignments of royalty interests, assignments of
performance or other collateral assignments, completion or surety bonds,
standby agreements, subordination agreements, undertakings and other documents,
agreements, instruments and financing statements now or hereafter executed or
delivered by any Person in connection with, or as security for the payment or
performance of, the Obligations or any part thereof.
"Senior Funded Debt" means the Total Funded Debt less the sum of (a)
the amount outstanding under the Existing Subordinated Notes and (b) the amount
outstanding under the New Notes.
"Senior Leverage Ratio" means the ratio of (a) Senior Funded Debt less
cash and cash equivalents in excess of $5 million to (b) Operating Cash Flow.
"Series B Preferred Stock" means the Borrower's Series B Redeemable
Preferred Stock, par value $.01 per share.
"Series C Preferred Stock" means the Borrower's 6% Series C Redeemable
Convertible Preferred Stock, par value $.01 per share.
"Series D Preferred Stock" means the Borrower's 6 1/2% Series D
Cumulative Convertible Exchangeable Preferred Stock, due May 31, 2007.
"Solvent" means, with respect to any Person as of the date of any
determination, that on such date (a) the fair value of the property of such
Person (both at fair valuation and at present fair saleable value) is greater
than the total amount of liabilities, including, without limitation, contingent
liabilities, of such Person, (b) the present fair saleable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person is able to realize upon its assets and pay its debts
and other liabilities, contingent obligations and other commitments as they
mature in the normal course of business, (d) such Person does not intend to,
and does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature and (e) such
Person is not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such Person's property would constitute
unreasonably small capital after giving due consideration to current and
anticipated future capital requirements and current and anticipated future
business conduct and the prevailing practice in the industry in which such
Person is engaged. In computing the amount of contingent liabilities at any
time, such liabilities shall be computed at the amount which, in light of the
facts and circumstances existing at such time,
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represents the amount that can reasonably be expected to become an actual or
matured liability.
"Specified Percentage" means as to any Lender the percentage of the
Aggregate Commitment indicated beside such Lender's name on the signature pages
hereof or, if applicable, specified in its most recent Assignment Agreement.
"Station" or "Stations" has the meaning set forth in Section 4.21.
"Subordinated Indebtedness" means (a) the New Notes, (b) the Existing
Subordinated Notes and (c) any other unsecured Debt of any Obligor no part of
the principal of which is required to be paid (whether by way of mandatory
sinking fund, mandatory redemption, mandatory prepayment or otherwise) prior to
the Maturity Date and the payment of the principal of and interest on which and
any other obligations of any Obligor in respect of which is effectively
subordinated to the prior payment in full of the principal of and interest
(including post-petition interest, whether or not any such post-petition
interest is an allowable claim in any bankruptcy proceeding) on the Loans and
all other Obligations of the Obligors to the Lenders under the Loan Documents
and otherwise on terms and conditions approved by the Required Lenders.
"Subsidiary" of any Person means (a) any corporation, securities of
which having ordinary voting power to elect a majority of the board of
directors (irrespective of whether or not at the time stock of any other class
or classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) are at the time, directly or indirectly,
owned or controlled by such Person or by one or more of its Subsidiaries or (b)
any partnership, association, limited liability company, joint venture or other
entity, ownership interests of which ordinarily constitute a majority voting
interest, including any partnership in which such Person and/or one or more
Subsidiaries of such Person shall have an interest (whether in the form of
voting or participation in profits or capital contribution) of more than 50%,
are at the time, directly or indirectly, owned or controlled by such Person.
"Wholly-Owned Subsidiary" shall mean (a) any such corporation of which all of
such shares, other than directors' qualifying shares, are so owned or
controlled, directly or indirectly, and (b) any such partnership, association,
limited liability company, joint venture or other entity in which such Person
owns or controls, directly or indirectly, 100% of such interests.
"Subsidiary Guarantors" means Subsidiaries of the Borrower that have
entered into a Guaranty.
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"Subsidiary Pledge Agreement" means the Amended, Restated and
Consolidated Pledge Agreement, dated the date hereof, substantially in the form
of Exhibit H, executed and delivered by Borrower's Subsidiaries as such
agreement may be amended, modified, restated, supplemented, renewed, extended,
rearranged or substituted from time to time.
"Subsidiary Security Agreement" means the Amended, Restated and
Consolidated Security Agreement, dated the date hereof, substantially in the
form of Exhibit I, executed and delivered by Borrower's Subsidiaries as such
agreement may be amended, modified, restated, supplemented, renewed, extended,
rearranged or substituted from time to time.
"Taxes" means all taxes, assessments, fees, levies, imposts, duties,
deductions, withholdings or other charges of any nature whatsoever from time to
time or at any time imposed by any Law or Tribunal, excluding, in the case of
each Lender and the Agent, taxes based on or measured by its net income, and
franchise taxes and any doing business taxes imposed on it, by any jurisdiction
(or political subdivisions thereof) in which the Agent or such Lender or any
Applicable Lending Office is organized, located or doing business.
"Term Loan" shall have the meaning ascribed to such term in Section
2.1(b).
"Termination Event" means (a) a "reportable event" as defined in
section 4043 of ERISA, (b) the withdrawal of Borrower or any ERISA Affiliate
from a Multiple Employer Plan during a plan year in which it was a "substantial
employer" as defined in section 4001(a)(2) of ERISA, (c) the filing of a notice
of intent to terminate a Plan or a Multiple Employer Plan or the treatment of a
plan amendment as a termination under section 4041(c) of ERISA, (d) the
institution of proceedings to terminate a Plan or a Multiple Employer Plan by
the PBGC, (e) any other event or condition which might constitute grounds under
section 4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any Plan or a Multiple Employer Plan, (f) the occurrence of an
event described in section 4068(f) of ERISA with respect to a Plan or (g) any
occurrence similar to any of those referred to in clauses (a) through (f) above
under the applicable Laws of a foreign country.
"Texas Rangers Contract" means the Radio Broadcast Rights Agreement
Between B/R Rangers Associates, LTD. and SFX Broadcasting of Texas, Inc., dated
August 30, 1994 and amended April 11, 1996.
"Total Funded Debt" of Borrower and its Subsidiaries on a consolidated
basis means as of the date of any determination (a) all outstanding
Obligations, (b) all other Debt of any Obligor
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of the type described in clause (a) of the definition of Debt, and (c) all
liabilities of others described in clause (a) or (b) in respect of which any
Obligor has incurred, assumed or acquired a liability by means of a Guaranty
Obligation.
"Total Leverage Ratio" means the ratio of (a) Total Funded Debt less
cash and cash equivalents in excess of $5 million to (b) Operating Cash Flow.
"Tribunal" means any court or governmental department, commission,
board, bureau, agency or instrumentality of the United States of America or any
state, commonwealth, nation, territory, province, possession, township, county,
parish or municipality, whether now or hereafter constituted or existing.
"UCC" means the Uniform Commercial Code as enacted in the State of New
York or other applicable jurisdiction, as amended from time to time.
"Welfare Plan" means an employee welfare benefit plan as defined in
section 3(1) of ERISA in which any personnel of Borrower or of an ERISA
Affiliate participate, excluding any Multiemployer Plan, but including any such
plan established or maintained by Borrower or an ERISA Affiliate, or to which
Borrower or any ERISA Affiliate contributes, under the Laws of any foreign
country.
"Wholly-Owned Subsidiary" has the meaning set forth in the definition
of Subsidiary.
Section 1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the same defined meanings when used in the Note or other
Loan Documents.
(b) As used in any Loan Document, accounting terms relating to
Borrower and its Subsidiaries not defined in Section 1.1 and accounting terms
partly defined in Section 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein", "hereto" and "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement and Article,
Section, subsection, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
(d) The meanings given to terms defined in any Loan Document shall be
equally applicable to both the singular and plural forms of such terms.
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(e) Unless stipulated otherwise (i) all references in any of the Loan
Documents to "dollars", "money", "payments" or other similar financial or
monetary terms, are references to currency of the United States of America and
(ii) all references to interest are to simple not compound interest.
(f) The headings and captions used in any of the Loan Documents are
for convenience only and shall not be deemed to limit, amplify or modify the
terms of the Loan Documents nor affect the meaning thereof.
ARTICLE II
COMMITMENTS AND LOANS
Section 2.1 Loans.
(a) The Revolving Credit Loans. Subject to the terms and conditions of
this Agreement and relying on the representations and warranties set forth
herein, each Lender severally, and not jointly, agrees to make Revolving Credit
Loans (the "Revolving Credit Loans") to the Borrower from time to time on any
Borrowing Date that occurs prior to the Revolving Credit Conversion Date up to
an aggregate principal amount of Revolving Credit Loans at any one time
outstanding not to exceed an amount equal to its Specified Percentage of such
Revolving Credit Loans on such Borrowing Date. Within such limits and during
such period and subject to the other provisions of this Article II, the
Revolving Credit Loans may be repaid and reborrowed. The aggregate amount of
all Letter of Credit Obligations and the outstanding principal amount of the
Revolving Credit Loans shall not exceed $150,000,000 unless the condition
specified in Section 3.3 hereof has been satisfied. In no event, however, shall
the aggregate amount of all Letter of Credit Obligations and the outstanding
principal amount of the Revolving Credit Loans exceed the Aggregate Commitment.
(b) The Term Loans. Subject to the terms and conditions of this
Agreement and relying on the representations and warranties set forth herein,
on the Revolving Credit Conversion Date, each Lender severally, and not
jointly, agrees to make a Term Loan (the "Term Loans") to the Borrower in an
aggregate amount equal to its Specified Percentage of the Revolving Credit
Loans outstanding on the Revolving Credit Conversion Date subject to there
being no default or Event of Default.
(c) Applicable Interest Rate. Revolving Credit Loans and Term Loans
may, at the option of Borrower as provided in Section 2.2, be made as Alternate
Base Rate Loans or as LIBOR Loans; provided that with respect to LIBOR Loans
there shall be no more than four separate Interest Periods in effect at any one
time.
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Section 2.2 Manner of Borrowing/Converting/Continuing and
Disbursement. Subject to the satisfaction of the applicable conditions set
forth in Article III and the provisions of this Section 2.2, Borrower may
borrow Alternate Base Rate Loans and LIBOR Loans, may continue and Convert
LIBOR Loans and may Convert Alternate Base Rate Loans, as follows:
(a) Alternate Base Rate Loans. In the case of Alternate Base Rate
Loans, an Authorized Signatory of Borrower shall give the Agent at least one
Business Day's prior written notice of its intention to borrow Alternate Base
Rate Loans hereunder. Such notice shall be irrevocable, shall be given to the
Agent prior to 11:00 a.m., New York City time, and shall be accompanied by a
duly executed Funding Certificate. Such notice of borrowing shall specify (i)
the requested Borrowing Date and (ii) the amount of the proposed aggregate
Alternate Base Rate Loans to be made by the Lenders.
(b) LIBOR Loans. In the case of LIBOR Loans, an Authorized Signatory
of Borrower shall give the Agent at least three Business Days' prior written
notice of its intention to borrow LIBOR Loans hereunder. Such notice of
borrowing shall be irrevocable, shall be given to the Agent prior to 11:00
a.m., New York City time, and shall be accompanied by a duly executed Funding
Certificate. Such notice of borrowing shall specify (i) the requested Borrowing
Date, (ii) the amount of the proposed aggregate LIBOR Loans to be made by the
Lenders and (iii) the duration of the Interest Period selected by Borrower for
such LIBOR Loans.
(c) Continuations and Conversions. In the case of continuing LIBOR
Loans as LIBOR Loans at the end of the applicable Interest Period for such
Loans, Converting LIBOR Loans to Alternate Base Rate Loans at the end of the
applicable Interest Period for such Loans or Converting Alternate Base Rate
Loans into LIBOR Loans:
(i) In the case of continuations or Conversions of LIBOR Loans,
at least three Business Days' prior to the expiration of an Interest
Period relating to any outstanding LIBOR Loans, an Authorized
Signatory of Borrower shall give the Agent notice, which notice shall
be irrevocable, specifying the applicable Interest Period and advising
whether on the last day of such Interest Period all or a portion of
such LIBOR Loans are to be continued as LIBOR Loans or are to be
Converted to Alternate Base Rate Loans. If Borrower elects to continue
all or a portion of such LIBOR Loans as LIBOR Loans, such notice shall
also select the duration of the new Interest Period applicable to such
Loans. If Borrower has elected to have such LIBOR Loans Convert to
Alternate Base Rate Loans or if the conditions for continuing LIBOR
Loans as such Loans set forth in Section 3.6 are not satisfied, on the
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date of the expiration of the applicable Interest Period such
outstanding LIBOR Loans shall Convert to Alternate Base Rate Loans. In
the event Borrower fails to provide the Agent with the notice required
by this subsection (c)(i), on the last day of the applicable Interest
Period all LIBOR Loans relating to such Interest Period shall Convert
to Alternate Base Rate Loans.
(ii) In the case of Conversions of Alternate Base Rate Loans, at
least three Business Days prior to the date of Conversion of any
outstanding Alternate Base Rate Loans into LIBOR Loans, an Authorized
Signatory of Borrower shall give the Agent notice, which notice shall
be irrevocable, specifying the principal amount of Alternate Base Rate
Loans to be Converted and the duration of the Interest Period selected
by Borrower for such Loans. On the date specified in such notice, such
Alternate Base Rate Loans shall convert to LIBOR Loans.
(d) Minimum Amounts. The aggregate amount of Alternate Base Rate Loans
to be made by the Lenders on any Borrowing Date (other than Alternate Base Rate
Loans made by the Lenders pursuant to Section 2.17(h)) shall be in a principal
amount that is not less than $1,000,000 and is an integral multiple of $100,000
for drawings in excess thereof. The aggregate amount of LIBOR Loans having the
same Interest Period and to be made by the Lenders on any Borrowing Date shall
be in a principal amount that is not less than $5,000,000 and is an integral
multiple of $1,000,000 for drawings in excess thereof.
(e) Funding. The Agent shall promptly notify the Lenders of each
notice received from Borrower pursuant to this Section 2.2. In the case of a
notice of borrowing pursuant to Section 2.2(a) or 2.2(b) each Lender shall no
later than 12:00 p.m., New York City time, on the Borrowing Date for such
requested borrowing, deliver to the Agent, at its address set forth herein, an
amount equal to such Lender's Specified Percentage thereof in Dollars and in
immediately available funds in accordance with the Agent's instructions. Prior
to 2:00 p.m., New York City time, on the Borrowing Date, the Agent shall,
subject to satisfaction of the applicable conditions set forth in Article III,
disburse the amounts made available to the Agent by the Lenders by (i)
transferring such amounts by wire transfer pursuant to Borrower's instructions
or (ii) in the absence of such instructions, crediting such amounts to the
account of Borrower maintained with the Agent.
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(f) Funding and Maintaining LIBOR Loans. The borrowing or continuation
of any LIBOR Loans and the conversion of Alternate Base Rate Loans into LIBOR
Loans shall in all cases be subject to Sections 2.12, 2.13, 2.14 and 2.16. The
provisions of this Agreement relating to calculation of the LIBOR Rate are
included only for the purpose of determining the rate of interest or other
amounts to be paid hereunder that are based upon such rate, it being understood
that each Lender shall be entitled to fund and maintain its funding of all or
any part of its LIBOR Loans as it deems appropriate.
(g) Promissory Note. In order to further evidence the Borrower's
obligation to repay the Loans, the Borrower shall execute and deliver to each
Lender (or to the Agent for re-delivery to such Lender) a Note payable to the
order of such Lender. The Note of the Borrower issued to a Lender shall (i) be
in the principal amount of such Lender's Commitment, (ii) be dated not later
than the Closing Date, (iii) be stated to mature on the Maturity Date and bear
interest from its date until Maturity on the principal balance from time to
time outstanding thereunder, payable at the rates, at the times, and in the
manner provided herein, and (iv) shall be in the form attached hereto as
Exhibit A. Each Lender is authorized to indicate upon the grid attached to its
Note all Loans made by it pursuant to this Agreement, interest elections and
payments of principal and interest thereon. In the absence of manifest error,
such notations shall be presumptively correct as to the aggregate unpaid
principal amount of all Loans made by such Lender to the Borrower, and interest
due thereon, but the failure by any Lender to make such notations or the
inaccuracy or incompleteness of any such notations shall not affect the
obligations of the Borrower hereunder or under the Notes.
Section 2.3 Interest.
(a) Alternate Base Rate Loans. Borrower shall pay interest on the
unpaid principal amount of the Alternate Base Rate Loans from the date such
Loans are made until the same become due (whether at maturity, by reason of
acceleration or otherwise) or are earlier repaid at a rate per annum equal to
the Alternate Base Rate. Interest on the Alternate Base Rate Loans shall be
computed on the basis of a 360-day year for the actual number of days elapsed
and shall be due and payable in arrears on each Quarterly Date and on the
Maturity Date.
(b) LIBOR Loans. Borrower shall pay interest on the unpaid principal
amount of the LIBOR Loans from the date such Loans are made until the same
become due (whether at maturity, by reason of acceleration or otherwise) or are
earlier repaid at a rate per annum equal to the LIBOR Rate applicable to such
Loans. The Agent, whose determination shall be conclusive, shall determine the
LIBOR Rate on the second Business Day prior to the Borrowing Date and
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shall notify Borrower and the Lenders of such LIBOR Rate. Interest on the LIBOR
Loans shall be computed on the basis of a 360-day year for the actual number of
days elapsed and shall be due and payable in arrears on the last day of the
applicable Interest Period and on the Maturity Date; provided, however, that if
the Interest Period for any LIBOR Loans exceeds three months, interest on such
Loans shall also be due and payable in arrears on the date that is three months
from the first day of such Interest Period.
(c) Interest After an Event of Default. After Maturity (by
acceleration or otherwise) and during the continuance (i) of any payment Event
of Default or (ii) for more than 30 days following any other Event of Default,
automatically and without any action by the Agent or any Lender, to the extent
permitted by applicable law, the outstanding Obligations shall bear interest at
a rate per annum equal to the Default Rate instead of the Alternate Base Rate
or the LIBOR Rate, as applicable. Such interest shall be payable on demand and
shall accrue until the earlier of (i) waiver or cure (to the satisfaction of
the requisite number of Lenders) of the applicable Event of Default, (ii)
agreement by the Lenders to rescind the charging of interest at the Default
Rate or (iii) payment in full of the Obligations and termination of the
Commitments.
Section 2.4 Commitment Fee. Borrower agrees to pay to the Agent for
distribution to the Lenders (based on their respective Specified Percentages) a
commitment fee with respect to the Aggregate Commitment, from the date of this
Agreement to, but not including, the Revolving Credit Conversion Date or the
date of any termination of the Aggregate Commitment, as the case may be, at the
rate of 0.50% per annum on the daily average amount of the Available Amount
(collectively, the "Commitment Fee"). Such Commitment Fee shall be payable in
arrears on each Quarterly Date and the Revolving Credit Conversion Date and on
the date of any termination of the Aggregate Commitment. The Commitment Fee
shall be computed on the basis of a 360-day year for the actual number of days
elapsed.
Section 2.5 Prepayments.
(a) Mandatory Prepayments and Reduction of Commitment. Upon receipt by
the Borrower of proceeds as contemplated pursuant to Section 2.5(d), 2.5(e),
2.5(f), or 2.5(g) hereof, the amount of the Aggregate Commitment shall be
reduced by the amount of such proceeds. If, after such reduction of the
Aggregate Commitment, the principal amount outstanding under the Loans plus the
Letter of Credit Obligations exceeds the Aggregate Commitment, then the
Borrower shall prepay the Loans in the amount that is in excess of the
Aggregate Commitment. All mandatory prepayments after the Revolving Credit
Conversion Date shall be applied to the prepayment of the installments of
principal payable pursuant to Section 2.6 in
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inverse order of their maturity and shall not otherwise affect the Quarterly
Percentage Reductions required under Section 2.6.
(b) Voluntary Prepayments. The principal amount of Alternate Base Rate
Loans may be prepaid in whole or in part at any time, without penalty, on one
Business Day's prior written notice by an Authorized Signatory to the Agent,
specifying the amount of such Loans to be repaid. Prepayments of Alternate Base
Rate Loans shall be in a principal amount that is not less than $1,000,000 and
is an integral multiple of $100,000 for amounts in excess thereof. LIBOR Loans
may be voluntarily prepaid in whole or in part only on the last day of the
Interest Period for such Loans on three Business Days' prior written notice by
an Authorized Signatory to the Agent, specifying the amount of such Loans to be
repaid . Prepayments of LIBOR Loans shall be in a principal amount that is not
less than $5,000,000 and is an integral multiple of $1,000,000 for amounts in
excess thereof. Each notice of prepayment shall be irrevocable and the amount
of such prepayment shall be due and payable on the date set forth in Borrower's
notice thereof. Voluntary prepayments of the Loans on and after the Revolving
Credit Conversion Date shall be applied to the installments of principal
payable pursuant to Section 2.6 in the inverse order of their maturity and
shall not otherwise affect the principal amount of the Quarterly Percentage
Reductions required under Section 2.6.
(c) Voluntary Reductions of Commitments. Borrower shall have the
right, on not less than three Business Days' prior written notice by an
Authorized Signatory to the Agent, which shall promptly notify the Lenders, to
terminate or permanently reduce the Aggregate Commitment. Each such reduction
or termination of the Aggregate Commitment shall be allocated among the
Lenders' respective Commitments, as the case may be, in accordance with the
Lenders' respective Specified Percentages. Each reduction shall be in an
aggregate amount not less than $5,000,000; provided that if the Aggregate
Commitment aggregates less than $5,000,000, Borrower may terminate the
Aggregate Commitment in an amount less than $5,000,000. Notwithstanding the
foregoing, Borrower shall have no right to terminate or reduce Aggregate
Commitments if as a result thereof (i) the aggregate amount of all Letter of
Credit Obligations and the outstanding principal amount of all Loans would
exceed the Aggregate Commitment or (ii) any LIBOR Loans would be required to be
prepaid prior to the last day of the relevant Interest Period for such Loans.
(d) Station Sales, Exchanges or other Dispositions. All Net Cash
Proceeds received from (i) station sales or exchanges (reduced by Reinvested
Proceeds within the Reinvestment Period) other than the Scheduled Asset Sales
or (ii) other dispositions (other than in the ordinary course of business)
shall be applied as a prepayment pursuant to Section 2.5(a).
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(e) Excess Cash Flow Prepayments. Commencing with the year ended
December 31, 1998, and payable on March 31st of each succeeding fiscal year
thereafter, when the Total Leverage Ratio is greater than 4.50 to 1.00,
Borrower shall pay to the Agent as a prepayment pursuant to Section 2.5(a) an
amount not less than 50% of Excess Cash Flow calculated for each fiscal year.
(f) Insurance/Condemnation Prepayments. All Applicable Proceeds (i) in
excess of amounts used to replace or repair any properties or (ii) which are
not used or designated to replace or repair properties within one year after
receipt thereof shall be applied by the Agent as a prepayment pursuant to
Section 2.5(a) provided that the Borrower shall have commenced the restoration
or replacement process (including the making of appropriate filings and
requests for approval) within 45 days after such casualty or after the receipt
of any such condemnation proceeds, as the case may be, and diligently pursues
the same through completion.
(g) Equity Issuances. Cash proceeds from the issuance of common equity
(excluding cash proceeds received from the exercise of the MMR Warrants) in an
amount in excess of $175,000,000, measured on a cumulative basis from the
Closing Date forward, shall be applied as follows: (i) 100% of all such
proceeds shall be applied as a prepayment pursuant to Section 2.5(a) until the
Total Leverage Ratio is below 6.00 to 1.00, and (ii) 50% of such proceeds shall
be applied as a prepayment pursuant to Section 2.5(a) until the Total Leverage
Ratio is below 5.00 to 1.00. No additional equity issuance proceeds must be
applied as a prepayment if the Total Leverage Ratio is below 5.00 to 1.00.
(h) Prepayments and Reductions, Generally. Each prepayment of any
Loans shall be accompanied by (i) the payment of interest accrued and unpaid on
the Loans being prepaid to the date of prepayment and (ii) in the case of LIBOR
Loans, reimbursement payments to the Lenders of losses or expenses, if
applicable, pursuant to Section 2.8. All payments made pursuant to subsections
(c), (d), (e), (f) and (g) above shall be applied first to the prepayment of
the Alternate Base Rate Loans under the applicable Commitments until repaid in
full and then to LIBOR Loans under the applicable Commitments.
(i) If at the time of any prepayment required by Section 2.5(d),
2.5(e), 2.5(f) or 2.5(g) or as a result of the application of some but not all
of the funds available for such prepayment, the Loans have been paid in full
but there remain outstanding Letters of Credit, such Letters of Credit shall be
cash collateralized by the amount of such excess funds, which shall be held and
applied by the Agent in the same manner as cash collateral is held and applied
by the Agent pursuant to Section 2.17(q); provided, however, (i) such excess
funds shall not be held as cash collateral to the
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extent that they exceed the aggregate amount of outstanding Letters of Credit
and (ii) the holding of such cash collateral shall not effect any permanent
reduction of the Commitments as provided in Section 2.5(c), 2.5(d), 2.5(e),
2.5(f) and 2.5(g) until such time as such cash collateral is applied by the
Agent toward payment of Reimbursement Obligations becoming due with respect to
Letters of Credit or such Letters of Credit expire or are earlier cancelled.
Section 2.6 Amortization of Term Loans after the Revolving Credit
Conversion Date. On each Quarterly Date, commencing December 31, 1998, through
the Maturity Date, Borrower shall pay to Agent principal payments on the Term
Loan in an amount equal to the percentage of the Conversion Amount calculated
as set forth below (the "Quarterly Percentage Reduction").
Calendar Year Quarterly Total Percentage
Percentage Reduction for the
Reduction Calendar Year
1998 5.00% of the
Conversion Amount
1999 3.75% of the 15.00% of the
Conversion Amount Conversion Amount
2000 5.00% of the 20.00% of the
Conversion Amount Conversion Amount
2001 5.00% of the 20.00% of the
Conversion Amount Conversion Amount
2002 5.50% of the 22.00% of the
Conversion Amount Conversion Amount
2003 4.50% of the 18.00% of the
Conversion Amount Conversion Amount
Section 2.7 Non-Receipt of Funds by the Agent. Unless the Agent shall
have been notified by a Lender prior to the date of any proposed Loans
requested by Borrower (which notice shall be effective upon receipt) that such
Lender does not intend to make available to the Agent such Lender's Specified
Percentage amount of such Loans, the Agent may assume that such Lender has made
its Specified Percentage amount available to the Agent on the applicable
Borrowing Date in accordance with Section 2.2(e) and the Agent may (but shall
not be required to), in reliance on such assumption, make available to Borrower
on such date a corresponding amount. If and to the extent that such Lender
shall not have so made its Specified Percentage amount available to the Agent,
such Lender and Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to Borrower until the date such
amount is repaid to the Agent (a) in
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the case of Borrower, at the interest rate applicable to such Loans and (b) in
the case of such Lender, at the Federal Funds Rate if such amount is paid in
full within three calendar days after demand therefor by the Agent and,
thereafter, at the Alternate Base Rate. If such Lender shall repay to the Agent
such corresponding amount, such amount so repaid shall constitute such Lender's
Specified Percentage amount of such Loans for purposes of this Agreement. The
failure of any Lender to provide its Specified Percentage amount of any
requested Loans shall not relieve any other Lender of its obligation hereunder
to make its Specified Percentage amount of such Loans.
Section 2.8 Reimbursement. Borrower shall compensate each Lender for
any loss or expense which such Lender may sustain or incur as a consequence of
(a) the failure of Borrower to pay when due the principal amount of or interest
on any LIBOR Loans, (b) the failure of Borrower to make a borrowing of,
Conversion into or continuation of any LIBOR Loans after Borrower has given a
notice requesting the same in accordance with the provisions of this Agreement,
(c) the failure of Borrower to make any prepayment after Borrower has given a
notice thereof in accordance with the provisions of this Agreement or (d) a
payment or prepayment of any LIBOR Loans is made on a day that is not the last
day of the applicable Interest Period, including, without limitation, in each
case, any such loss (excluding loss of the Applicable Margin) or expense
arising from the reemployment of funds obtained by such Lender or from amounts
payable by such Lender to lenders of funds obtained by such Lender in order to
make or maintain such LIBOR Loans. Such compensation may include an amount
equal to the excess, if any, of (i) the amount of interest which would have
accrued on the amount so paid or prepaid, or not so borrowed, Converted or
continued, for the period from the date of such payment or prepayment, or of
such failure to borrow, Convert or continue, to the last day of the applicable
Interest Period in the case of a payment or prepayment or, in the case of a
failure to borrow, Convert or continue, to the last day of the Interest Period
that would have commenced on the date of such failure, in each case at the
applicable LIBOR Rate (minus the Applicable Margin) for such Loans over (ii)
the amount of interest (as reasonably determined by such Lender) which would
have accrued to such Lender on such amount by placing such amount on deposit
for a comparable period with prime banks in the London interbank market.
Nothing in this Section 2.8 shall be construed to permit Borrower to make
payments or prepayments in respect of the Obligations on a day other than as
provided in the respective Loan Documents.
Section 2.9 Payments.
(a) Manner/Timing Payments. Except as otherwise set forth in Section
2.17(h), each payment (including prepayment) by Borrower of principal of or
interest on the Loans, fees and any
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other Obligation owing by any Obligor under this Agreement or any other Loan
Document shall be made not later than 11:00 a.m., New York City time, on the
date specified for such payment under this Agreement or such other Loan
Document to the Agent for the accounts of the respective Lenders entitled
thereto at the Agent's office in Dollars and in immediately available funds. If
any payment under this Agreement or any other Loan Document shall be specified
to be made on a day that is not a Business Day, it shall be made on the next
succeeding day that is a Business Day, unless such payment is in respect of
principal of or interest on LIBOR Loans and such Business Day falls in another
calendar month, in which case payment shall be made on the next preceding
Business Day. Borrower shall pay principal, interest, fees and all other
amounts due under the Loan Documents without notice and without set-off,
counterclaim or any other deduction whatsoever. Payments made in respect of the
Loans received by Agent shall be promptly distributed to the Lenders in
accordance with Section 2.9(b).
(b) Allocation of Payments. Subject to Section 8.8, all payments of
principal and interest in respect of the Loans, all payments in respect of the
Commitment Fee and all payments in respect of other Obligations shall be
allocated among and paid to the Lenders as are entitled thereto in proportion
to their respective Specified Percentages. All payments in respect of LIBOR
Loans shall be paid by the Agent to the Lenders for the account of their
respective LIBOR Lending Offices and all other payments in respect of the
Obligations shall be paid by the Agent to the Lender for the account of their
respective Domestic Lending Offices.
Section 2.10 Booking Loans. Any Lender may make, carry or transfer
Loans at, to or for the account of any Applicable Lending Office designated by
such Lender.
Section 2.11 Taxes.
(a) Any and all payments by any Obligor of the Obligations shall be
made, in accordance with Section 2.9, free and clear of and without deduction
for any and all present or future Taxes. If Borrower shall be required by any
Law to deduct any Taxes from or in respect of any sum payable hereunder to any
Lender or the Agent, (i) the sum payable by Borrower shall be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.11) such Lender or
the Agent (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) Borrower shall make such
deductions and (iii) Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
Law.
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(b) In addition, Borrower shall pay any and all present and future
stamp and documentary Taxes and any and all other excise and property Taxes,
charges and similar levies that arise from any payment made hereunder or from
the execution, delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "Other
Taxes").
(c) Borrower shall indemnify each Lender and the Agent for the full
amount of Taxes and Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this Section
2.11) paid by such Lender or the Agent (as the case may be) and all liabilities
(including penalties, additions to tax, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally asserted, other than penalties, additions to tax,
interest and expenses arising as a result of gross negligence on the part of
such Lender or the Agent. Payments in respect of the foregoing indemnification
shall be made within five days after the date such Lender or the Agent (as the
case may be) makes demand therefor.
(d) Within 30 days after the date of any payment of Taxes by Borrower
pursuant to this Section 2.11, Borrower shall furnish to the Lenders the
original or a certified copy of a receipt evidencing payment thereof. If
Borrower makes any payment in respect of any Obligation from any account
located outside the United States or any such payment is made by a payor that
is not a United States Person and if no Taxes are payable in respect of such
payment, Borrower shall furnish to each of the Lenders a certificate from each
appropriate taxing authority, or an opinion of counsel acceptable to the Agent,
in either case stating that such payment is exempt from or not subject to
Taxes. For purposes of this Section 2.11, the terms "United States" and "United
States Person" shall have the meanings set forth in Section 7701 of the Code.
(e) Each Lender which is not a United States Person hereby agrees
that:
(i) it shall, no later than the date of this Agreement (or, in
the case of a Lender which becomes a party hereto pursuant to Section
10.14 after the date of this Agreement, the date upon which such
Lender becomes a party hereto) deliver to Borrower through the Agent,
with a copy to the Agent (A) if any lending office is located in the
United States of America, two (2) accurate and complete signed
originals of Internal Revenue Service Form 4224 or any successor
thereto ("Form 4224") (B) if any lending office is located outside the
United States of America, two (2) accurate and complete signed
originals of Internal Revenue Service Form 1001 or any
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successor thereto ("Form 1001"), in each case indicating that such
Lender is on the date of delivery thereof entitled to receive payments
of principal, interest and fees for the account of such lending office
or lending offices under this Agreement free from withholding of
United States federal income tax;
(ii) if at any time such Lender changes its lending office or
lending offices or selects an additional lending office it shall, at
the same time or reasonably promptly thereafter but only to the extent
the forms previously delivered by it hereunder are no longer
effective, deliver to Borrower through the Agent, with a copy to the
Agent, in replacement for the forms previously delivered by it
hereunder (A) if such changed or additional lending office is located
in the United States of America, two (2) accurate and complete signed
originals of Form 4224 or (B) otherwise, two (2) accurate and complete
signed originals of Form 1001, in each case indicating that such
Lender is on the date of delivery thereof entitled to receive payments
of principal, interest and fees for the account of such changed or
additional lending office under this Agreement free from withholding
of United States federal income tax;
(iii) it shall, before or promptly after the occurrence of any
event (including the passing of time but excluding any event mentioned
in clause (ii) above) requiring a change in the most recent Form 4224
or Form 1001 previously delivered by such Lender and if the delivery
of the same be lawful, deliver to Borrower through the Agent, with a
copy to the Agent, two (2) accurate and complete original signed
copies of Form 4224 or Form 1001 in replacement for the forms
previously delivered by such Lender; and
(iv) it shall, promptly upon the request of Borrower to that
effect, deliver to Borrower through the Agent such other forms or
similar documentation as may be required from time to time by any
applicable Law, treaty, rule or regulation in order to establish such
Lender's tax status for withholding purposes.
(f) The obligations of Borrower contained in this Section 2.11 shall
survive the termination of this Agreement and the payment in full of the
Obligations.
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Section 2.12 LIBOR Rate Determination Inadequate.
(a) If with respect to any LIBOR Loans for any Interest Period, the
Agent determines that for any reason appropriate information is not available
to it for purposes of determining the LIBOR Rate for such Interest Period, (i)
the Agent shall notify Borrower and the Lenders that the interest rate cannot
be determined for such LIBOR Loans, (ii) the obligation of the Lenders to make
or to continue LIBOR Loans or to Convert Loans into LIBOR Loans shall be
suspended and (iii) all outstanding LIBOR Loans shall automatically, on the
last day of the then existing respective Interest Periods therefor, Convert
into Alternate Base Rate Loans, until such time as the LIBOR Rate can be
determined.
(b) If, with respect to any LIBOR Loans, any Lender notifies the Agent
that the LIBOR Rate determined by the Agent for any Interest Period for such
Loans will not adequately reflect the cost to such Lender of making or
continuing its LIBOR Loans or Converting its Loans into LIBOR Loans for such
Interest Period, the Agent shall so notify Borrower, whereupon (i) the
obligation of such Lender to make or continue LIBOR Loans or to Convert Loans
into LIBOR Loans shall be suspended and (ii) each LIBOR Loan maintained by such
Lender shall automatically, on the last day of the then existing Interest
Period therefor, Convert into an Alternate Base Rate Loan, until the Lender
shall notify Borrower and the Agent that the circumstances causing such
suspension no longer exist.
Section 2.13 Illegality. If any applicable Law or any change therein,
adoption thereof or interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof or if compliance by any Lender (or its
LIBOR Lending Office) with any request or directive (whether or not having the
force of Law) of any such authority, central bank or comparable agency, shall
make it unlawful or impossible for such Lender (or its LIBOR Lending Office) to
make, continue or Convert into its Specified Percentage amount of LIBOR Loans,
such Lender shall so notify Borrower and the Agent and such Lender's obligation
to make LIBOR Loans, to continue LIBOR Loans or to Convert any Alternate Base
Rate Loans into LIBOR Loans shall be suspended until such Lender shall notify
Borrower and the Agent that the circumstances causing such suspension no longer
exist. On receipt of such notice, notwithstanding anything to the contrary
contained in Article II, Borrower shall immediately (a) repay in full the then
outstanding principal amount of the LIBOR Loans owing to the notifying Lender,
together with accrued and unpaid interest thereon or (b) Convert such LIBOR
Loans into Alternate Base Rate Loans, and, in either such case, reimburse such
Lender for its losses and expenses as required under Section 2.8.
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Section 2.14 Increased Costs.
(a) If any applicable Law or any change in or adoption of any Law or
any interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof or compliance by any Lender (or its LIBOR Lending
Office) with any request or directive (whether or not having the force of Law)
of any such authority, central bank or comparable agency:
(i) shall subject a Lender (or its LIBOR Lending Office) to any
Taxes (net of any tax benefit engendered thereby) with respect to its
LIBOR Loans or its obligation to make such Loans or shall change the
basis of taxation of payments to a Lender (or to its LIBOR Lending
Office) of the principal of or interest on its LIBOR Loans or in
respect of any other amounts due under this Agreement, as the case may
be; or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any reserve requirement imposed by the
Federal Reserve Board), special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by,
a Lender or its LIBOR Lending Office or shall impose on a Lender (or
its LIBOR Lending Office) or on the United States market for
certificates of deposit or the London interbank market any other
condition affecting its LIBOR Loans or its obligation to make such
Loans;
and the result of any of the foregoing is to increase the cost to a Lender (or
its LIBOR Lending Office) of making or continuing any LIBOR Loans or Converting
Loans into LIBOR Loans, or to reduce the amount of any sum received or
receivable by a Lender (or its LIBOR Lending Office) with respect thereto,
then, within 15 days after demand by a Lender, Borrower shall pay to such
Lender such additional amount as will compensate such Lender for such increased
costs or reduced amounts.
(b) A written statement of any Lender claiming compensation under this
Section 2.14 and setting forth in good faith the additional amounts to be paid
to it hereunder and calculations therefor shall be binding and conclusive,
absent manifest error. In determining such amount, a Lender may use any
reasonable averaging and attribution methods. If a Lender demands compensation
under this Section 2.14, Borrower may at any time, upon at least five Business
Days' prior notice to Lender, after reimbursing such Lender in accordance with
this Section 2.14 for all costs incurred or losses suffered, Convert in full
the then outstanding LIBOR Loans of such Lender into Alternate Base Rate Loans
and reimburse such Lender for all its losses and expenses as
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required pursuant to Section 2.8, whereupon the obligation of such Lender to
make or continue LIBOR Loans or to Convert Loans into LIBOR Loans shall be
suspended.
Section 2.15 Effect on Alternate Base Rate Loans. If notice has been
given pursuant to Section 2.12(b), 2.13 or 2.14 suspending the obligation of a
Lender to make LIBOR Loans, then, unless and until the Agent notifies Borrower
that the circumstances giving rise to such suspension no longer apply, all
Loans which would otherwise be made by such Lender as LIBOR Loans shall be made
instead as Alternate Base Rate Loans. All Loans of a Lender that but for any
such suspension pursuant to Section 2.12(b), 2.13 or 2.14 would be made or
continued as LIBOR Loans or Converted into LIBOR Loans of such Lender shall be
deemed to be such Lender's LIBOR Loans for purposes of calculating such
Lender's ratable portion of payments made in respect of all LIBOR Loans.
Section 2.16 Capital Adequacy. If either (a) the introduction of or
any change in or adoption of any Law or any change in the interpretation
thereof by any Tribunal or (b) compliance by a Lender (or its LIBOR Lending
Office) with any Law or request from any tribunal (whether or not having the
force of Law) affects or would affect the amount of capital required or
expected to be maintained by a Lender, its LIBOR Lending Office or any
corporation controlling such Lender, and such Lender determines that the amount
of such capital is increased by or based upon the existence of such Lender's
Specified Percentage of the Aggregate Commitment or its Loans hereunder and
other commitments or advances of such Lender of this type, then, upon demand by
such Lender, Borrower shall immediately pay to such Lender, from time to time
as specified by such Lender, additional amounts sufficient to compensate such
Lender with respect to such circumstances, to the extent that such Lender
determines such increase in capital to be allocable to the existence of such
Lender's Specified Percentage of the Aggregate Commitment or its Loans
hereunder. A statement as to such amounts submitted to Borrower by a Lender
hereunder shall be binding and conclusive, absent manifest error.
Section 2.17 Letters of Credit.
(a) The Letter of Credit Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue, extend and renew standby letters of
credit (the "Letters of Credit" or if the singular, "Letter of Credit") from
time to time on any Business Day during the period from the date of this
Agreement to the Revolving Credit Conversion Date, in such form as may be
requested by Borrower and agreed to by the Letter of Credit Issuing Bank for
the purpose of supporting the Borrower's obligations with respect to deposit
requirements associated with proposed acquisitions and to support ordinary
course working capital needs. The Letter of Credit Issuing Bank shall have no
obligation to issue any Letter of
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Credit in excess of the Available Amount. In no event shall the Letter of
Credit Obligations at any time exceed $20,000,000.
(b) No Lender other than the Letter of Credit Issuing Bank has any
obligation to issue any Letter of Credit.
(c) Terms of Letters of Credit. Each Letter of Credit shall be
denominated in Dollars and in no event shall the expiry date of any Letter of
Credit extend beyond one Business Day prior to the Revolving Credit Conversion
Date. Any extension of any expiry date or renewal of a Letter of Credit shall
constitute an "issuance" of such Letter of Credit for all purposes of this
Agreement.
(d) Letter of Credit Reimbursement Agreement. In addition to the terms
and conditions of this Agreement, each Letter of Credit shall be issued
pursuant to and the Letter of Credit Issuing Bank shall be entitled to the
benefits of a Letter of Credit Reimbursement Agreement. In the event of any
conflict or inconsistency between the terms of any Letter of Credit
Reimbursement Agreement and this Agreement, the terms of this Agreement shall
control to the extent of any such conflict or inconsistency.
(e) Requests for Issuance of Letters of Credit. Each issuance of a
Letter of Credit shall be made on notice given by Borrower to the Letter of
Credit Issuing Bank not later than 11:00 a.m. New York City time four Business
Days prior to the date of the proposed issuance of the Letter of Credit. Each
such notice (a "Letter of Credit Request") shall be in the form of Exhibit S,
which shall include a completed application for a standby Letter of Credit.
Such Letter of Credit Request shall be irrevocable and shall specify (i) the
stated amount of the Letter of Credit, (ii) the proposed date of issuance of
such Letter of Credit, (iii) the expiry date of such Letter of Credit, (iv) the
beneficiary of such Letter of Credit, (v) the purpose for which such Letter of
Credit is being requested and (vi) such other information reasonably
satisfactory to the Letter of Credit Issuing Bank as to enable the Letter of
Credit Issuing Bank to issue such Letter of Credit consistent with the
reasonable requirements of the beneficiary thereof. The Letter of Credit
Issuing Bank shall promptly deliver a copy of each Letter of Credit Request to
each Lender.
(f) Issuance of Letters of Credit: Participations. Subject to the
terms and conditions of this Section 2.17, the Letter of Credit Issuing Bank
shall on the date requested in the Letter of Credit Request issue a Letter of
Credit for the account of Borrower in accordance with the Letter of Credit
Issuing Bank's usual and customary business practices and confirm to the
Lenders that such Letter of Credit has been issued. Immediately upon the
issuance of a Letter of Credit, the Letter of Credit Issuing Bank
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shall be deemed to have sold and transferred to each Lender, and each Lender
shall be deemed to have irrevocably and unconditionally purchased and received
from the Letter of Credit Issuing Bank, without recourse or warranty, an
undivided interest and participation, to the extent of such Lender's Specified
Percentage thereof, in such Letter of Credit and the obligations of Borrower
with respect thereto and any security therefor and any guaranty pertaining
thereto at any time existing.
(g) Drawings on Letters of Credit. The Letter of Credit Issuing Bank
shall promptly notify (i) each Lender of the Letter of Credit Issuing Bank's
receipt of a draw request under any Letter of Credit, stating the amount of
such Lender's Specified Percentage of such draw request and the date on which
such request will be honored and (ii) Borrower of the amount of such draw
request and the date on which such request will be honored. Any failure of the
Letter of Credit Issuing Bank to give or any delay in the Letter of Credit
Issuing Bank's giving any such notice shall not release or diminish the
obligations of Borrower or any Lender in respect thereof. In determining
whether to pay under any Letter of Credit, the Letter of Credit Issuing Bank
shall have no obligation to any Lender other than to confirm that any documents
required to be delivered under such Letter of Credit have been delivered and
that they appear to comply on their face with the requirements of such Letter
of Credit. In the absence of gross negligence or willful misconduct on the part
of the Letter of Credit Issuing Bank, the Letter of Credit Issuing Bank shall
have no liability to any Lender for any action taken or omitted to be taken by
it under or in connection with any Letter of Credit, including any such action
negligently taken or negligently omitted to be taken by it.
(h) Borrower's Reimbursement Obligation. Borrower shall pay (either
from the proceeds of the Loans or otherwise) to the Letter of Credit Issuing
Bank on demand at the Letter of Credit Issuing Bank's Domestic Lending Office
in Dollars in immediately available funds the amount of all Reimbursement
Obligations owing to the Letter of Credit Issuing Bank under any Letter of
Credit, together with interest thereon at a rate of interest equal to the
Alternate Base Rate in effect from time to time for each day from, and
including, the date of payment by the Letter of Credit Issuing Bank of the
applicable draw request under such Letter of Credit to, but excluding, the
payment in full to the Letter of Credit Issuing Bank of such Reimbursement
Obligations, irrespective of any claim, setoff, defense or other right which
Borrower may have at any time against the Letter of Credit Issuing Bank or any
other Person. In the event that the Letter of Credit Issuing Bank makes any
payment under any Letter of Credit and Borrower shall not have repaid such
amount to the Letter of Credit Issuing Bank when due, the Letter of Credit
Issuing Bank shall promptly notify each Lender of such failure, and each Lender
shall promptly and unconditionally pay to the Letter of Credit Issuing Bank the
amount of such Lender's
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Specified Percentage of such payment in Dollars in immediately available funds
on the Business Day the Letter of Credit Issuing Bank so notifies such Lender
if such notice is given prior to 12:00 Noon, New York City time, or, if such
notice is given after 12:00 Noon, New York City time, such Lender shall make
its Specified Percentage of such payment available to the Letter of Credit
Issuing Bank prior to 12:00 Noon, New York City time, on the next succeeding
Business Day. All such payments by the Lenders shall constitute Alternate Base
Rate Loans made by such Lenders to Borrower pursuant to Section 2.2
(irrespective of the satisfaction of the conditions in Article III, which are
irrevocably waived) and the Reimbursement Obligations with respect to which
such Loans were made shall thereupon be satisfied to the extent of such
payments; provided, however, if pursuant to any Law, such payment made by any
Lender is not permitted to be made as a Loan, such Reimbursement Obligations
shall be reinstated and not so reduced by the amount of such payment and such
Lender's participations therein pursuant to Section 2.17(f) similarly shall be
reinstated to such amount.
(i) Lender's Obligations. If and to the extent any Lender shall not
make such Lender's Specified Percentage of any Reimbursement Obligations
available to the Letter of Credit Issuing Bank when due in accordance with
Section 2.17(h), such Lender agrees to pay interest to the Letter of Credit
Issuing Bank on such unpaid amount for each day from the date such payment is
due until the date such amount is paid in full to the Letter of Credit Issuing
Bank at the Federal Funds Rate until (and including) the third Business Day
after the date due and thereafter at the Alternate Base Rate. The obligations
of the Lenders under this Section 2.17(i) are several and not joint or joint
and several, and the failure of any Lender to make available to the Letter of
Credit Issuing Bank its Specified Percentage of any Reimbursement Obligations
when due in accordance with Section 2.17(h) shall not relieve any other Lender
of its obligation hereunder to make its Specified Percentage of such
Reimbursement Obligations so available when so due, but no Lender shall be
responsible for the failure of any other Lender to make such other Lender's
Specified Percentage of such Reimbursement Obligations so available when so
due.
(j) Reimbursement Obligation Payments. Whenever the Letter of Credit
Issuing Bank receives a payment of a Reimbursement Obligation from or on behalf
of Borrower as to which the Letter of Credit Issuing Bank has received any
payment from a Lender pursuant to Section 2.17(h), the Letter of Credit Issuing
Bank shall promptly pay to such Lender an amount equal to such Lender's
Specified Percentage of such payment from or on behalf of Borrower. If any
payment by or on behalf of Borrower and received by the Letter of Credit
Issuing Bank with respect to any Letter of Credit is rescinded or must
otherwise be returned by the Letter of Credit Issuing Bank for any reason and
the Letter of Credit Issuing Bank has paid to any Lender any portion thereof,
each such Lender shall
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forthwith pay over to the Letter of Credit Issuing Bank an amount equal to such
Lender's Specified Percentage of the amount which must be so returned by the
Letter of Credit Issuing Bank.
(k) Issuer's Costs and Expenses. Each Lender, upon the demand of the
Letter of Credit Issuing Bank, shall reimburse the Letter of Credit Issuing
Bank, to the extent the Letter of Credit Issuing Bank has not been reimbursed
by Borrower after demand therefor, for the reasonable costs and expenses
(including reasonable attorneys' fees) incurred by the Letter of Credit Issuing
Bank in connection with the collection of amounts due under, and the
preservation and enforcement of any rights conferred by, any Letter of Credit
or the performance of the Letter of Credit Issuing Bank's obligations as issuer
of the Letters of Credit under this Agreement in respect thereof, to the extent
of such Lender's Specified Percentage of the amount of such costs and expenses.
The Letter of Credit Issuing Bank shall refund any costs and expenses
reimbursed by such Lender that are subsequently recovered from Borrower in an
amount equal to such Lender's Specified Percentage thereof.
(l) Borrower's and Lenders' Obligations Absolute. The obligation of
the Borrower to reimburse the Letter of Credit Issuing Bank pursuant to this
Section 2.17, and the obligation of each Lender to make available to the Letter
of Credit Issuing Bank the amounts set forth in this Section 2.17 shall be
absolute, unconditional and irrevocable under any and all circumstances, shall
be made without reduction for any set-off, counterclaim or other deduction of
any nature whatsoever, may not be terminated, suspended or delayed for any
reason whatsoever, shall not be subject to any qualification or exception and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or
any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right
which Borrower may have at any time against a beneficiary named in a Letter of
Credit, any transferee of any Letter of Credit (or any Person for whom any such
transferee may be acting), the Letter of Credit Issuing Bank, any Lender or any
other Person, whether in connection with this Agreement, any other Loan
Document, any Letter of Credit, the transactions contemplated in the Loan
Documents or any unrelated transactions (including any underlying transaction
between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented
under any Letter of Credit proving to be forged,
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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 Collateral for the
performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
Nothing contained in this Section 2.17(l), however, shall require the Borrower
or any Lender to reimburse the Letter of Credit Issuing Bank for any amounts
that become due by reason of the Letter of Credit Issuing Bank's gross
negligence or wilful misconduct.
(m) Letter of Credit Fees. Borrower shall pay to the Letter of Credit
Issuing Bank, for the ratable account of the Lenders, a letter of credit fee on
the Letter of Credit Undrawn Amount for each day at the rate per annum equal to
the Applicable Letter of Credit Fee Percentage, calculated on the basis of a
360-day year, payable in arrears on each Quarterly Date prior to the Revolving
Credit Conversion Date and on the date any Letter of Credit is canceled or
expires to the extent accrued and unpaid on the amount subject to such
cancellation or expiration.
(n) Increased Costs. Without duplication of any amounts owing pursuant
to Section 2.14, if after the date of this Agreement any change in any
applicable Law or in the interpretation or administration thereof by any
central bank or comparable agency or any other Tribunal charged with the
interpretation or administration thereof (whether or not having the force of
law) shall impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of or
credit extended by any Lender or the Letter of Credit Issuing Bank, or shall
impose on such Lender or the Letter of Credit Issuing Bank any other condition
affecting this Agreement or any Letter of Credit or participation therein, and
the result of any of the foregoing shall be to increase the cost to such Lender
or the Letter of Credit Issuing Bank of issuing or maintaining any Letter of
Credit, paying or funding any draw request thereunder or purchasing or
maintaining a participation therein, or to reduce the amount of any sum
received or receivable by such Lender hereunder or the Letter of Credit Issuing
Bank hereunder or under any Letter of Credit Reimbursement Agreement (whether
of principal, interest, fees or otherwise) by an amount reasonably determined
by such Lender or the Letter of Credit Issuing Bank to be material, then
Borrower shall pay to such Lender or the Letter of Credit Issuing Bank, as the
case may be, following receipt of a notice from such Lender or the Letter of
Credit Issuing Bank, as the case may be, to such effect, such additional
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amount or amounts as will compensate such Lender or the Letter of Credit
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered. The Letter of Credit Issuing Bank or any Lender requiring
payment under this Section 2.17(n) shall deliver to Borrower a statement
reasonably setting forth the amount and manner of determination thereof, which
statement shall be conclusive, absent manifest error.
(o) Capital Adequacy. Without duplication of any amount owing pursuant
to Section 2.16, if any Lender or the Letter of Credit Issuing Bank shall have
determined that (i) the adoption after the date of this Agreement of any Law,
guideline or directive regarding capital adequacy, (ii) any change after the
date of this Agreement in any such Law, guideline or directive or in the
interpretation or administration thereof after the date hereof by any central
bank or comparable agency or any other Tribunal charged with the interpretation
or administration thereof or (iii) compliance by any Lender (or any lending
office of such Lender) or the Letter of Credit Issuing Bank or any Lender's or
the Letter of Credit Issuing Bank's holding company with any request or
directive regarding capital adequacy issued after the date hereof under any Law
or guideline (whether or not having the force of law) of any Tribunal has or
would have the effect of reducing the rate of return on such Lender's or the
Letter of Credit Issuing Bank's capital or on the capital of such Lender's or
the Letter of Credit Issuing Bank's holding company, if any, as a consequence
of this Agreement, the Letter of Credit Reimbursement Agreement or the
participations in Letters of Credit purchased by such Lender pursuant hereto or
the Letters of Credit issued by the Letter of Credit Issuing Bank pursuant
hereto to a level below that which such Lender or the Letter of Credit Issuing
Bank or such Lender's or the Letter of Credit Issuing Bank's holding company
could have achieved but for such applicability, adoption, change or compliance
(taking into consideration such Lender's or the Letter of Credit Issuing Bank's
policies and the policies of such Lender's or the Letter of Credit Issuing
Bank's holding company with respect to capital adequacy) by an amount
reasonably determined by such Lender or the Letter of Credit Issuing Bank to be
material, then from time to time Borrower shall pay to such Lender or the
Letter of Credit Issuing Bank, as the case may be, following receipt of a
notice from such Lender to such effect, such additional amount or amounts as
shall compensate such Lender or the Letter of Credit Issuing Bank or such
Lender's or the Letter of Credit Issuing Bank's holding company for any such
reduction suffered. The Letter of Credit Issuing Bank or any Lender requiring
payment under this Section 2.17(o) shall deliver to Borrower a statement
reasonably setting forth the amount and manner of determination thereof, which
statement shall be conclusive, absent manifest error.
(p) Cash Collateral. During the continuance of any Event of Default,
the Letter of Credit Issuing Bank, on notice to
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Borrower, may (but shall not be obligated to), and, if so directed by the
Required Lenders, shall, demand that Borrower deliver cash collateral to the
Letter of Credit Issuing Bank in an amount equal to the aggregate amount of
Letter of Credit Obligations then outstanding, whereupon Borrower shall be
obligated to deliver such cash collateral immediately; provided, however, that
if an Event of Default as described in Section 7.6 or 7.7 occurs, then, without
any demand or notice from the Letter of Credit Issuing Bank or any Lender,
Borrower shall deliver such cash collateral to the Letter of Credit Issuing
Bank immediately upon the occurrence of such Event of Default. Such cash
collateralization shall be made by deposit by Borrower of Dollars in
immediately available funds, in the amount of such required cash
collateralization into a non-interest bearing cash collateral account at the
Letter of Credit Issuing Bank, which account shall be under the sole dominion
and control of the Letter of Credit Issuing Bank and is hereby pledged to the
Letter of Credit Issuing Bank for the benefit of itself and the Lenders as
security for the payment of any Letter of Credit Obligations and any other
Obligations that may become payable under any Loan Documents. Funds deposited
in such account (i) shall automatically be applied by the Letter of Credit
Issuing Bank to reimburse the Letter of Credit Issuing Bank for all
Reimbursement Obligations that Borrower has not paid, and thereafter (ii) may
be applied by the Letter of Credit Issuing Bank against the Letter of Credit
Obligations as they become due or, if the maturity of the Loans has been
accelerated, against payment of any other Obligations under the Loan Documents
as such amounts become due. Any funds remaining in such account when all Letter
of Credit Obligations and all other Obligations payable under the Loan
Documents have been paid shall be promptly remitted to Borrower. The rights
granted under this Section 2.17(p) shall be in addition to any other rights
available to the Letter of Credit Issuing Bank and the Lenders under Article
VIII.
(q) Conditions to the Issuance of Letters of Credit. The obligation of
the Letter of Credit Issuing Bank to issue any Letter of Credit is subject to
the satisfaction of the following conditions precedent on the date of the
issuance of such Letter of Credit:
(i) Each condition specified in Section 3.1 shall have been and
shall continue to be satisfied;
(ii) the Letter of Credit Issuing Bank has received a Letter of
Credit Reimbursement Agreement, duly executed and delivered by Borrower, and
such other documents and items relating to such Letter of Credit as the Letter
of Credit Issuing Bank reasonably may request;
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(iii) the Letter of Credit Issuing Bank has received a Letter of
Credit Request with respect to such Letter of Credit in accordance with Section
2.17(e);
(iv) the representations and warranties set forth herein and each
of the other Loan Documents shall be deemed made by each Obligor to the Lenders
and the Letter of Credit Issuing Bank as of such date (unless made only as of a
specific date) and the same shall be true and correct;
(v) no Default or Event of Default exists or would exist as a
result of the issuance of such Letter of Credit;
(vi) the issuance of such Letter of Credit will not contravene
any Law applicable to the Letter of Credit Issuing Bank or any Lender;
(vii) the Letter of Credit Issuing Bank has received all amounts
due to the Letter of Credit Issuing Bank in connection with such Letter of
Credit;
(viii) the Letter of Credit Issuing Bank has received a Funding
Certificate signed by the Chief Financial Officer of the Obligors; and
(ix) no event or condition shall have occurred which could
reasonably be expected to have a Material Adverse Effect.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions Precedent to the Effectiveness of Second
Amended and Restated Credit Agreement. The effectiveness of this Second Amended
and Restated Credit Agreement on the Closing Date is subject to receipt by the
Agent on or before the Closing Date of the Notes as described in clause (a)
below for each Lender, and of each of the other documents described below (with
a copy for each Lender) in form and substance satisfactory to the Lenders
(except as otherwise set forth in this Section 3.1):
(a) Execution and Notes. This Agreement, duly executed and delivered
by each of the Obligors, each of the Subsidiaries guaranteeing payment and
performance of the Obligations, the Lenders, the Agent and the Letter of Credit
Issuing Bank, and the Notes, duly executed by Borrower and payable to the order
of each Lender, as described in Section 2.2(g), dated as of the date of this
Agreement.
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(b) Guaranty. The Guaranty, duly executed by each Subsidiary of
Borrower, dated as of the date of this Agreement.
(c) Mortgages and Fixture Filings. (i) Mortgages, or, to the extent
mortgages were previously delivered, mortgage modification agreements covering
the fee properties set forth on Schedule 3.1(c)-1 with the exception of items
(m), (n), and (o) on such Schedule, duly executed by the appropriate Obligor,
dated as of the date of this Agreement and (ii) UCC fixture filings in the
locations set forth on Schedule 3.1(c)-2, duly executed by such parties.
(d) Borrower Security Agreement. The Borrower Security Agreement, duly
executed and completed by Borrower, dated as of the date of this Agreement,
together with all promissory notes owned by Borrower not previously endorsed to
the Agent, duly endorsed to the Agent.
(e) Subsidiary Security Agreement. The Subsidiary Security Agreement,
duly executed and completed by each applicable Subsidiary of Borrower, dated as
of the date of this Agreement, together with all promissory notes owned by such
Subsidiaries not previously endorsed to the Agent, duly endorsed to the Agent.
(f) Borrower Pledge Agreement. The Borrower Pledge Agreement, duly
executed and completed by Borrower, dated as of the date of this Agreement,
granting to the Lenders a lien on and security interest in all capital stock
owned by Borrower, together with the stock certificates representing all such
capital stock owned by Borrower and related stock powers duly executed in blank
not previously pledged to Agent.
(g) Subsidiary Pledge Agreement. The Subsidiary Pledge Agreement, duly
executed and completed by each Subsidiary of the Borrower (including special
purpose license subsidiaries holding FCC radio licenses) granting to the
Lenders a lien on and security interest in (i) all capital stock owned by such
Subsidiaries, together with the stock certificates representing all such
capital stock and related stock powers duly executed in blank.
(h) Intercompany Notes. The Intercompany Notes that have not yet been
endorsed by the payee thereunder to the Agent, duly executed by each applicable
Subsidiary, dated as of the date of this Agreement and duly endorsed by the
payee thereunder to the Agent.
(i) UCC Financing Statements. New UCC financing statements,
assignments and/or amendments to existing UCC financing statements and all
other requisite filing documents deemed necessary by the Agent to perfect the
Liens in favor of the Agent,
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as secured party, for the ratable benefit of the Lenders, duly executed by the
appropriate Obligor, to be recorded with the appropriate filing offices.
(j) Lien Searches. Results of a recent search, by a Person
satisfactory to the Agent, of the Uniform Commercial Code and tax lien filings
which may have been filed with respect to personal property of any Obligor, in
each of the jurisdictions where assets of such Obligor are located, and the
results of such search shall reveal no Liens on any of the assets of such
Obligor, except for Permitted Liens, and shall otherwise be satisfactory to the
Agent.
(k) Cancellation of Liens. Evidence that all Liens other than
Permitted Liens have been cancelled and released, including duly executed
releases and UCC-3 financing statements in recordable form and otherwise in
form and substance satisfactory to the Agent, as may be necessary to reflect
that the Liens assigned and granted to the Agent, as secured party for the
ratable benefit of the Lenders, and the Security Documents are first and prior
Liens.
(l) Copies of Exception Documents. To the extent required by the
Agent, copies of all recorded documents referred to, or listed as exceptions to
title in, the title policy or policies and a copy, certified by such parties as
the Agent may deem appropriate, of all other documents affecting the property
covered by each Mortgage.
(m) Flood Insurance. The Agent shall have determined that no flood
insurance is required in connection with the properties covered by the
Mortgages or, if necessary, Borrower shall have provided evidence, satisfactory
to the Agent, that Borrower has purchased such required flood insurance.
(n) Environmental Audit. To the extent requested by the Agent, the
Agent shall have received an environmental audit (which shall be a Phase I,
unless the initial findings indicate a need for additional review) in form and
substance satisfactory to it from an environmental consulting firm acceptable
to the Agent with respect to any environmental hazards, conditions or
liabilities (contingent or otherwise) to which any Obligor may be subject.
(o) Landlord Waivers and Consents. To the extent the Agent so
requires, the Agent shall have received Landlord Waivers and Consents signed by
each lessor of a Material Lease waiving such lessor's liens in and to the
equipment or fixtures of the applicable Obligor located on the leased premises
and consenting to an assignment of the applicable lease to the Lenders or
purchasers of the Lenders after an Event of Default, in form and substance
satisfactory to the Agent.
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(p) Existence, Good Standing and Authority. Original certificates
dated a Current Date of existence and good standing, as applicable from
appropriate officials of each Obligor's respective state of incorporation and
certificates dated a Current Date of good standing and authority to do business
from appropriate officials of any and all jurisdictions where each Obligor's
property or business makes qualification to transact business therein necessary
and where the failure to be so qualified could reasonably be expected to have a
Material Adverse Effect.
(q) Resolutions. Copies of resolutions of each Obligor approving this
Agreement and the other Loan Documents to which such Obligor is a party and
authorizing the transactions contemplated herein and therein, duly adopted at a
meeting of, or by the unanimous written consent of, the Board of Directors of
such Obligor.
(r) Charter Documents. A copy of all Charter Documents of each
Obligor. The articles/certificate of incorporation of each Obligor shall be
accompanied by an original certificate issued by the Secretary of the State of
incorporation of such Obligor dated a Current Date certifying that such copy is
correct and complete.
(s) Officers' Certificate. A duly executed Officers' Certificate,
dated the date of this Agreement, in the form of Exhibit K, from an executive
officer and the Secretary or Assistant Secretary of each Obligor.
(t) Opinions of Counsel. An original executed opinion dated the date
of this Agreement from Xxxxx & XxXxxxxx, counsel to Borrower, substantially in
the form of Exhibit L and such opinions of local counsel to Borrower as the
Agent may require in respect of the Mortgages, other Security Documents, and
such other legal opinions, letter and other documentation as the Agent may
reasonably request, in form and substance satisfactory to the Agent.
(u) Opinion of FCC Counsel. An original executed opinion dated the
date of this Agreement from Xxxxxx Xxxxxxx Xxxxxx Leader & Zarogoza LLP, FCC
counsel to Borrower, substantially in the form of Exhibit M.
(v) Insurance. Certificates of insurance naming the Agent as loss
payee for the benefit of the Lenders and the Agent and the Lenders as
additional insureds, as required by Section 5.7.
(w) Fees and Expenses. Borrower shall have paid to the Agent (i) all
fees and expenses to be received by the Agent and the Lenders that are due and
payable on the date of this Agreement pursuant to this Agreement or any other
Loan Document and (ii) an amount equal to the estimated costs and out-of-pocket
expenses of
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the Agent's counsel incurred in connection with the preparation, examination,
negotiation, execution and delivery of this Agreement, the other Loan Documents
and the consummation of the transactions contemplated by the foregoing.
(x) Financial Information. Certified copies of a Compliance
Certificate of Borrower reflecting the Obligations to be incurred hereunder, if
applicable, but using the results of operations for the four fiscal quarters
ended September 30, 1996, satisfactory to the Lenders.
(y) Perfection Certificate. A Perfection Certificate, dated the date
of this Agreement, duly executed by each Obligor, in the form of Exhibit N (the
"Perfection Certificate").
(z) No Material Litigation. No litigation, inquiry, injunction or
restraining order shall be pending, entered or threatened (including any
proposed statute, rule or regulation) that could reasonably be expected to have
a Material Adverse Effect.
(aa) Solvency Certificate. A duly executed Solvency Certificate as to
the Borrower and each subsidiary dated the date of this Agreement in the form
of Exhibit P.
Section 3.2 Conditions Precedent to All Loans and Letters of Credit.
The obligation of each Lender to make any Loans, including its initial Loans,
and in the case of the Letter of Credit Issuing Bank, to issue Letters of
Credit, is subject to the following conditions:
(a) Compliance with Section 3.1. Each condition specified in Section
3.1 shall have been and shall continue to be satisfied.
(b) Notice of Borrowing. Borrower shall have submitted a notice of
borrowing in accordance with Section 2.2(a) or 2.2(b).
(c) Representations and Warranties. On each Borrowing Date the
representations and warranties made in this Agreement and the other Loan
Documents shall be deemed made by each Obligor to the Agent and the Lenders as
of such date (unless made only as of a specific date) and the same shall be
true and correct.
(d) No Material Adverse Effect. No event or condition shall have
occurred which could reasonably be expected to have a Material Adverse Effect.
(e) No Default. No Default or Event of Default shall exist or would
exist after giving effect to such borrowing.
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(f) Legality. The making of the Loans is permitted by Law.
(g) Funding Certificate. The Agent shall have received a Funding
Certificate signed by the Chief Financial Officer of the Obligors.
(h) Other Documents. The Lenders shall have received such other
agreements, documents, instruments, legal memoranda, certificates, information,
approvals or opinions as the Agent may reasonably request.
Section 3.3 Supplemental Indenture. The aggregate amount of all Letter
of Credit Obligations and the outstanding principal amount of the Revolving
Credit Loans shall not exceed $150,000,000 unless the Agent shall have received
a fully executed copy of a Supplemental Indenture to the 1996 Indenture in form
and substance satisfactory to the Agent, which Supplemental Indenture by its
terms would have the effect of permitting the Subsidiaries to provide
guarantees in respect of Letter of Credit Obligations and Revolving Credit
Loans in an aggregate amount no less than $225,000,000.
Section 3.4 Permitted Acquisitions. The closing of all Permitted
Acquisitions is subject to the following conditions:
(a) Permitted Acquisition Agreements. All material agreements relating
to a Permitted Acquisition shall be in form and substance reasonably
satisfactory to the Agent.
(b) FCC and SEC Issues. The Agent shall be satisfied that each
Permitted Acquisition complies with applicable laws or regulations, including
applicable regulations of the FCC and SEC.
(c) Security Documents. Additional documents as may be necessary to
effect the pledge of all assets acquired in a Permitted Acquisition shall be
delivered promptly after the closing of the Permitted Acquisition in accordance
with Section 5.12 hereof.
Section 3.5 Loans. If a borrowing is a Loan in connection with the
closing of a Permitted Acquisition, (i) the Agent or the Required Lenders, as
the case may be, shall have given the requisite approval therefor to the extent
necessary hereunder, (ii) Borrower and its Wholly-Owned Subsidiaries shall have
obtained Final Orders with respect to all Necessary Authorizations required to
be obtained by Borrower or such Subsidiaries in connection therewith and (iii)
the Agent and the Lenders shall have received a Compliance Certificate
evidencing that no Default or Event of Default would exist as a result of such
Permitted Acquisition. If a borrowing or Letter of Credit is requested for the
purpose of
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funding a cash deposit, or providing security in lieu thereof, or for an option
fee payment, in connection with a proposed Permitted Acquisition, Borrower
shall certify to the Agent and the Lenders in the Funding Certificate that,
after making such borrowing or after the issuance of such Letter of Credit that
Borrower is in compliance with Section 6.3.
Section 3.6 Continuations/Conversions. LIBOR Loans may be continued as
LIBOR Loans at the end of the applicable Interest Period and Alternate Base
Rate Loans may be Converted to LIBOR Loans, subject to the following
conditions: on the last day of the applicable Interest Period or, as the case
may be, the date of Conversion (i) no event or condition shall have occurred
which could reasonably be expected to have a Material Adverse Effect; (ii) no
Default or Event of Default shall exist; (iii) the representations and
warranties made in this Agreement and the other Loan Documents shall be deemed
made by each Obligor to the Agent and the Lenders as of such date (unless made
only as of a specific date) and the same shall be true and correct; and (iv)
Borrower shall have submitted the applicable notice required by Section 2.2(c).
Section 3.7 Materiality of Conditions. Each condition precedent herein
is material to the transactions contemplated by the Loan Documents.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each Obligor represents and warrants to the Agent and the Lenders as
follows:
Section 4.1 Corporate Existence and Authority. Each Obligor (a) is a
corporation duly organized, validly existing and in good standing under the Law
of its jurisdiction of incorporation, (b) has all requisite corporate power to
conduct its business and to execute and deliver and perform its obligations
under this Agreement and the other Loan Documents to which it is a party and
(c) is duly qualified to transact business and in good standing as a foreign
corporation in each jurisdiction where the nature and extent of its assets,
business, properties or operations require the same (such jurisdictions being
identified on Schedule 4.1), except where failure to be so duly qualified and
in good standing could not reasonably be expected to have a Material Adverse
Effect.
Section 4.2 Authorization; Binding Obligations. The execution,
delivery and performance by each Obligor of this Agreement and each other Loan
Document to which such Obligor is or
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will be a party, and the incurrence of the Debt and other Obligations
contemplated hereby and thereby, have been duly authorized and approved by all
necessary corporate action on the part of such Obligor. Except insofar as the
enforceability of a Loan Document may be limited by applicable Debtor Relief
Laws or subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law), (a) this
Agreement constitutes the legal, valid and binding obligation of each Obligor,
(b) each other Loan Document to which any Obligor is or will be a party will
be, when executed and delivered by such Obligor, the legal, valid and binding
obligation of such Obligor and (c) each Loan Document to which an Obligor has
or will become a party will be enforceable against such Obligor in accordance
with its terms.
Section 4.3 Compliance with Laws and Documents; No Default. No Obligor
is in breach or violation of or in default under (a) other than such violations
which individually or in the aggregate could not be reasonably expected to have
a Material Adverse Effect, any applicable Law (b) the Existing Subordinated
Note Indenture or the 1996 Indenture, (c) any Material Lease or LMA Agreement,
(d) other than such breaches, violations or defaults that individually or in
the aggregate could not be reasonably expected to have a Material Adverse
Effect, any other Contractual Obligation or (e) its Charter Documents. No
Obligor's execution, delivery, performance, or compliance with the terms of a
Loan Document does or will, and consummation of the transactions contemplated
by the Loan Documents does not and will not: (a) conflict with, breach, violate
or constitute a default under (i) any applicable Law, (ii) the 1996 Indenture
(provided that no borrowing in excess of $150,000,000 is made prior to the
satisfaction of the condition set forth in Section 3.3 hereof), (iii) the
Charter Documents of any Obligor, or (iv) any other Contractual Obligation of
any Obligor; (b) result in the mandatory acceleration or prepayment of any Debt
owed by any Obligor or afford any holder of any such Debt the right to require
any Obligor to purchase, redeem or otherwise acquire, reacquire or repay any
such Debt; or (c) result in the imposition of any Lien upon the assets,
properties, revenues or Rights of any Obligor (other than Liens imposed or
created or to be imposed or created under or pursuant to the Loan Documents).
Section 4.4 Ownership. All the outstanding shares of capital stock of
each Obligor are duly authorized, validly issued, fully paid and nonassessable,
and none of such shares has been issued in violation of any preemptive or
preferential Rights of any Person. As of the date hereof, no voting trusts,
shareholder agreements or other voting arrangements or any other agreements
exist with respect to the capital stock of any Obligor to which any Obligor, or
any Affiliate of any Obligor, is a party, or of which any Obligor, or any
Affiliate of any Obligor, has knowledge, other
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than those listed on Schedule 4.4(A). As of the date hereof, no outstanding
subscription, contract, convertible or exchangeable security, option, warrant,
call or other Right (whether absolute or contingent, statutory or otherwise)
obligating or permitting any Obligor to issue, sell, exchange or otherwise
dispose of or to purchase, redeem or otherwise acquire shares of, or securities
convertible into or exchangeable for, capital stock of any Obligor exists
except as set forth on Schedule 4.4(B). As of the date hereof, no capital stock
of any Obligor is subject to any restriction on transfer thereof except as set
forth on Schedule 4.4(C) and except for restrictions imposed by federal or
state securities Laws or which may arise as a result of any Obligor being
subject to the Communications Act. Pursuant to the Pledge Agreements, the
Lenders at all times will hold a valid and perfected first priority Lien on all
the issued and outstanding capital stock of each Subsidiary of Borrower, on a
fully diluted basis. With the exception of ABS, in which Borrower holds at
least a 96% interest, each Subsidiary of Borrower is, directly or indirectly, a
Wholly-Owned Subsidiary and, except for Subsidiaries created by Borrower with
the prior consent of the Agent or the Required Lenders, as the case may be, in
connection with a Permitted Acquisition, Borrower has no Subsidiaries as of the
date hereof other than those listed on Schedule 4.4(D).
Section 4.5 Other Corporate or Trade Names. During the period of five
years ending on the date of this Agreement, no Obligor has transacted business
under any corporate or trade name, been a party to any merger, combination or
consolidation or acquired all or substantially all of the assets of any Person
other than as set forth in the Perfection Certificate.
Section 4.6 Fiscal Year. The fiscal year of Borrower ends on
December 31.
Section 4.7 Business. No Obligor is directly or indirectly engaged in
any business other than the radio broadcast business and activities incidental
or related thereto.
Section 4.8 Relationship with Lenders. No Person who may be deemed to
have "control" of any Obligor is an "executive officer", "director" or
"principal shareholder" of any Lender or any correspondent of any Lender, as
such terms are defined in section 215.2 of Regulation O of the Federal Reserve
Board.
Section 4.9 Financial Statements. The Current Financials and all other
Financial Statements of the Obligors have been or will be prepared in
accordance with GAAP and present fairly the consolidated and consolidating
financial conditions and results of operations of the Obligors as of, and for
the portion of the fiscal year ending on, the date or dates thereof. All
material liabilities (direct or indirect, fixed or contingent) of the
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Obligors as of the date or dates of the Current Financials and all other
Financial Statements of the Obligors are reflected thereon or in the notes
thereto. Since December 31, 1995, no other material liabilities (direct or
indirect, fixed or contingent) have been incurred by any Obligor.
Section 4.10 Litigation. Other than as set forth in Schedule 4.10, no
Obligor is involved in, the subject of or aware of any threat against any
Obligor of any Litigation that could reasonably be expected to have a Material
Adverse Effect, and no outstanding or unpaid judgments against any Obligor
exist.
Section 4.11 Taxes. Except as disclosed in Schedule 4.11 hereto, all
United States federal income tax returns of Borrower and its Subsidiaries
required by law to be filed have been filed and all taxes shown by such returns
or otherwise assessed, which are due and payable, have been paid, except
assessments which are being contested in good faith by appropriate proceedings,
for which the criteria for Permitted Liens have been satisfied, including,
without limitation, for which adequate reserves are maintained in accordance
with GAAP. Except as disclosed in Schedule 4.11 hereto, each Obligor has filed
all other tax returns that are required to have been filed by it pursuant to
applicable foreign, state, local or other law except insofar as the failure to
file such returns would not have a Material Adverse Effect and has paid all
taxes and other assessments due pursuant to such returns or pursuant to any
assessment received by any Obligor, except for such taxes and other
assessments, if any, as are being contested in good faith, for which the
criteria for Permitted Liens have been satisfied, including, without
limitation, for which adequate reserves are maintained in accordance with GAAP.
The charges, accruals and reserves on the books of the Obligors in respect of
any income and corporation tax liability for any years not finally determined
are adequate in accordance with GAAP to meet any assessments or reassessments
for additional tax for all years not finally determined.
Section 4.12 Government Regulation. No Obligor is (a) an "investment
company" or a company "controlled by" an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended, and the rules
and regulations thereunder, (b) a "holding company" or a "subsidiary" or
"affiliate" of a "holding company" or a "public utility," as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended, and the
rules and regulations thereunder or (c) subject to any Law that regulates or
otherwise limits its ability to issue promissory notes or securities (other
than, with respect to the issuance of securities, the Communications Act, the
Securities Act, the Trust Indenture Act of 1939, as amended, and the rules and
regulations thereunder, and state "blue sky" laws) or to consummate the
transactions contemplated by the Loan Documents.
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None of the transactions contemplated by this Agreement will violate or result
in a violation of Section 7 of the Exchange Act or any regulations thereunder,
including, without limitation, Regulations G, T, U and X of the Federal Reserve
Board. None of the proceeds from the Loans will be used to purchase or carry
(or refinance any borrowing the proceeds of which were used to purchase or
carry) any "margin stock" in violation of the Exchange Act. No Loans will be
secured directly or indirectly in whole or in part by collateral that includes
any "margin stock." The making of the Loans and the issue and acquisition of
the Notes do not constitute "purpose credit" within the meaning of Regulation G
or U of the Federal Reserve Board, and the Lenders are not required to obtain a
statement from Borrower on any Federal Reserve Board form with respect to the
extension of credit hereunder. Borrower does not intend to apply, nor will it
apply, any part of the proceeds of the Loans in any manner that is unlawful or
would involve a violation of the Foreign Assets Control Regulations or the
Cuban Assets Control Regulations of the United States Treasury Department or
any other Law applicable to Borrower or the transactions contemplated by this
Agreement.
Section 4.13 Employee Benefit Plans. Neither Borrower nor any ERISA
Affiliate has incurred nor is reasonably expected to incur any withdrawal
liability under ERISA to, or with respect to, any Multiemployer Plan. Neither
Borrower nor any ERISA Affiliate or any fiduciary of any Plan or Welfare Plan
has engaged in any conduct which it knew or should have known to constitute a
prohibited transaction within the meaning of section 4975 of the Code or
sections 406 or 407 of ERISA or breached any fiduciary duty under Part 4 of
Title I of ERISA owed with respect to any Plan or any Welfare Plan. The
execution and delivery of this Agreement, the consummation of the transactions
contemplated by this Agreement and the lending of funds pursuant to the
provisions of this Agreement will not involve any prohibited transaction within
the meaning of sections 406 or 407 of ERISA or section 4975 of the Code. No
Plan established or maintained by Borrower or any ERISA Affiliate, or to which
Borrower or any ERISA Affiliate has made contributions, had an accumulated
funding deficiency (as such term is defined in section 302 of ERISA or section
412 of the Code), whether or not waived, as of the last day of the most
recently ended plan year of such Plan. No liability, individually or in the
aggregate, to the PBGC (other than required insurance premiums, all of which
that are due and have been paid) has been incurred by Borrower or any ERISA
Affiliate with respect to any Plan or Multiple Employer Plan. No event or
conditions, other than a Termination Event, has occurred, or is reasonably
expected to occur, which presents a material risk of the termination of any
Plan under circumstances which could result in a material liability to
Borrower, directly or as a result of an ERISA Affiliate's liability. All
material obligations of Borrower or of any ERISA Affiliate (but only if such
ERISA Affiliate's obligations could
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result in a material liability to Borrower) for payments by any of them to any
trust or other fund or to any governmental or administrative authority with
respect to pension benefits, unemployment compensation benefits, social
security or other benefits for employees or former employees of Borrower or of
any ERISA Affiliate, whether arising by operation of Law, by contract or by
legally binding past custom or practice, have been paid, or adequate accruals
therefor have been made in the books and records of Borrower or the appropriate
ERISA Affiliate. None of the obligations described in the preceding sentence
has been rendered not due by reason of any extension, whether at the request of
Borrower, any ERISA Affiliate, or otherwise. All material obligations of
Borrower or of any ERISA Affiliate (but only if such ERISA Affiliate's
obligations could result in a material liability to Borrower) for salaries,
vacation and holiday pay, bonuses and other forms of compensation, current or
deferred, payable to employees or former employees of Borrower or of any ERISA
Affiliate, whether arising by operation of Law, by contract, by legally binding
past custom or practice or otherwise, have been paid, or adequate accruals
therefor have been made in books and records of Borrower or the appropriate
ERISA Affiliate for such obligations have been made. For purposes of this
Section, an obligation or liability shall be considered material if it could
reasonably be expected to result, individually or in the aggregate, in a
Material Adverse Effect. No Lien in favor of a Plan, a Welfare Plan, the PBGC
or any Multiemployer Plan exists nor has there been any occurrence that, with
the passage of time, could reasonably be expected to result in the imposition
of such a Lien which could be superior to the Liens in favor of Lenders or
which could reasonably be expected to result in a material liability to
Borrower. Neither Borrower nor any ERISA Affiliate is aware of any failure to
comply with the continuing health care coverage requirements of sections 162(k)
or Part 6 of Title I of ERISA. All Plans and related trust agreements, annuity
contracts or other funding instruments comply currently, or have complied in
the past, with ERISA and the Code, where required to meet the requirements of
sections 401(a) and 403(a) of the Code, and all other applicable Laws. All
necessary government approvals for the Plans and each amendment thereto have
been obtained or will be timely obtained. There are no excise Taxes, additions
to tax or penalties due to any entity or agency as a result of the maintenance
or operation of any Plan or Welfare Plan. No Welfare Plan currently provides or
is obligated to provide benefits to former employees of Borrower or of any
ERISA Affiliate.
Section 4.14 Purpose of Loan. The proceeds of the Loans have been or
will be used only to fund Permitted Acquisitions (including transactions costs
associated therewith), to fund cash deposits made in connection with proposed
acquisitions of radio broadcast stations prior to approval thereof as a
Permitted Acquisition by the Agent or the Required Lenders, as the case may
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be, for issuance of standby Letters of Credit and for working capital or
general corporate purposes of the Obligors. No proceeds of the Loans have been
loaned, contributed or otherwise advanced by any Obligor to any other Person
except as permitted by Section 6.3. The Letters of Credit shall be used by
Borrower only as security, in lieu of cash deposits, in connection with
proposed Permitted Acquisitions and for general corporate purposes other than
in connection with a proposed Permitted Acquisition.
Section 4.15 Certain Material Agreements. Except for LMA Agreements
and except as described in Schedule 4.15, no Obligor is a party to any
management or sales agreement. Except for Material Leases entered into in
connection with the consummation of a Permitted Acquisition and except as
described in Schedule 4.15, no Obligor is a party to any Material Lease.
Section 4.16 No Consents. No order, consent, approval, license,
permit, franchise, waiver, exemption, authorization of or validation of, or
filing, recording or registration with (except those that have been heretofore
obtained or made) or exemption by, any Person or Tribunal (including the FCC)
is required to authorize, or is required in connection with, the execution,
delivery, performance, legality, validity, binding effect or enforceability of
this Agreement and the other Loan Documents except for (a) to the extent
required by Law, the filing with the FCC of this Agreement and certain of the
other Loan Documents pursuant to FCC rules, which shall be accomplished within
the required time period after the date this Agreement is executed and
delivered by the parties hereto, (b) the filing of UCC financing statements,
the Mortgages and other actions expressly required to be taken pursuant to the
Loan Documents and (c) the consent of the FCC (and FCC filings in connection
with such consent) to the extent required in connection with the exercise by
the Agent or the Lenders of their rights and remedies hereunder or under the
Security Documents.
Section 4.17 Environmental Laws; Hazardous Materials. Other than as
set forth in Schedule 4.17, each Obligor is in compliance with all
Environmental Laws applicable to it, including, without limitation, the
operations currently being conducted, or to be conducted, on the real property
owned or leased by such Obligor, other than violations of such Laws which could
not reasonably be expected to have a Material Adverse Effect. Other than as set
forth in Schedule 4.17, no Obligor has received any summons, complaint, order
or similar notice that it or its owned or leased real property is not in
compliance with, or that any Tribunal is investigating its compliance with,
Environmental Laws and is otherwise unaware of any contingent liability with
respect to its owned or leased real property or such real property's
noncompliance with Environmental Laws or its generation, handling, use, storage
or disposal of Hazardous Materials.
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Section 4.18 Chief Executive Office; Location of Collateral; Assumed
and Trade Names; Priority of Liens. Except for information not reflected
therein as a result of the consummation of any Permitted Acquisition, the
Perfection Certificate correctly sets forth (a) the address of the present
chief executive office of each Obligor, (b) the present and foreseeable
location of all the books and records relating to accounts and accounts
receivable of each Obligor (all of which are in the possession or control of
such Obligor), (c) the location of all assets of each Obligor, including all
real property owned or leased by such Obligor (as lessee, sublessee or lessor);
(d) all assumed or trade names and all prior corporate names of each Obligor
and (e) all registered trademarks and copyrights owned or licensed by each
Obligor. Each Obligor is entitled to receive notices under the Loan Documents
at its chief executive office, notwithstanding that such Obligor may maintain
other places of business. Pursuant to the Security Documents, the Agent, as
secured party or beneficiary thereunder, holds, for the pro rata benefit of the
Lenders, valid and perfected, first priority Liens in and to or on the
Collateral covered thereby, subject only to Permitted Liens.
Section 4.19 Insurance. All insurance maintained by the Obligors is in
compliance with the requirements of Section 5.7, including, without limitation,
the requirement that the Agent be named as a loss payee for the benefit of the
Lenders under casualty policies of insurance and that the Agent and the Lenders
be named as additional insureds under liability policies of insurance.
Section 4.20 Real Property; Leases. Each Obligor has good and
marketable title to, or a valid and subsisting leasehold interest in, all its
assets, property and revenues, subject to no Liens except for Permitted Liens.
Each Obligor enjoys peaceful and undisturbed possession of its owned and leased
real property and the improvements thereon and no Material Lease or other lease
material to the operation of any Obligor's business contains any unusual
provisions that might adversely affect or impair such Obligor's use and
enjoyment of the property covered thereby or the operation of such Obligor's
business. All Material Leases and such other material leases are in full force
and effect and no default or potential default exists thereunder.
Section 4.21 Ownership of Stations. Schedule 4.21 completely and
correctly lists each radio station owned directly or indirectly by any Obligor
(individually, a "Station" and collectively, the "Stations") as of the date of
this Agreement. No Obligor owns any radio stations other than the Stations or
those acquired in connection with a Permitted Acquisition.
Section 4.22 Possession of Franchises, Licenses, Etc. Each Obligor
possesses all Necessary Authorizations for its respective business, free from
any unusual or materially adverse
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restrictions. No Obligor is in violation of any Necessary Authorization except
for such violations that individually or in the aggregate could not reasonably
be expected to have a Material Adverse Effect.
Section 4.23 FCC, Copyright, Patent and Trademark Matters. Except as
disclosed on Schedule 4.23, each Obligor has duly and timely made all filings
and placements in its respective public inspection files (other than immaterial
filings and placements) and taken other steps as are required by the
Communications Act and is in all material respects in compliance with the
Communications Act, including, without limitation, the rules, regulations and
policies of the FCC relating to the acquisition and operation of radio
stations, including, without limitation, the Stations. No Obligor is liable to
any Person for copyright infringement under the Federal Copyright Act or any
state copyright Laws. No Obligor owns any patents or trademarks that have been
registered with any Tribunal and no applications for registration are pending
with respect to any patents or trademarks owned by any Obligor.
Section 4.24 No Adverse Effect. Since December 31, 1995, no event or
circumstance has occurred or arisen that could reasonably be expected to have a
Material Adverse Effect.
Section 4.25 No Contribution Obligations. Except for Borrower's
contractual contribution obligation with respect to ABS, no Obligor has any
contractual contribution obligation with respect to any partnership, joint
venture or other similar arrangement. Except for (i) the Borrower's interest in
ABS and (ii) partnerships, joint ventures or other similar arrangements entered
into after the date of this Agreement with the prior consent of the Required
Lenders, no Obligor has any partnership interest, joint venture interest or
similar interest in any partnership, joint venture or similar arrangement.
Section 4.26 Solvency. Each Obligor is Solvent, both before and after
giving effect to (a) the transactions contemplated by this Agreement, (b) each
borrowing requested by Borrower hereunder and (c) each Permitted Acquisition.
Section 4.27 Management Fees. No Obligor is obligated to pay
management, consulting, servicing fees or similar fees to any of such Obligor's
Affiliates, except as set forth on Schedule 6.6.
Section 4.28 Disclosure. All information that has been or is hereafter
made available to the Agent or any Lender by or on behalf of any Obligor in
connection with or pursuant to this Agreement, any other Loan Document or the
transactions contemplated hereby or thereby was and will be complete and
correct in all
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material respects and did not and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements contained therein not materially misleading in light of the
circumstances under which such statements were or will be made. All financial
projections that have been or are hereafter from time to time prepared by any
Obligor and made available to the Agent or any Lender pursuant to or in
connection with this Agreement, any other Loan Document or the transactions
contemplated hereby have been and will be prepared in good faith and were and
will be based on facts and assumptions that are reasonable in light of the then
current and foreseeable business conditions of the Obligors and represented and
will represent Borrower's management's reasonable best estimate of the
projected financial performance of the Obligors based on the information
available to the Obligors at the time so furnished. All pro forma financial
statements prepared by Borrower and furnished to the Agent or any Lender
pursuant to or in connection with this Agreement, the other Loan Documents or
the transactions contemplated hereby were and will be prepared in good faith
and fairly presented or present on a pro forma basis for the period covered
thereby Borrower's consolidated financial condition, based on the information
available to the Obligors at the time so furnished.
Section 4.29 License Subsidiaries. Except as set forth in Schedule
4.29, all FCC licenses and other authorizations relating to the Stations and
all FCC licenses and other authorizations relating to any other stations
acquired in connection with a Permitted Acquisition or asset exchange are held
by their respective License Subsidiaries. In the case of those stations set
forth on Schedule 4.29 and those stations acquired in connection with a
Permitted Acquisition or asset exchange, Borrower shall cause within 90 days of
the date of this Agreement or within 60 days of such acquisition, as the case
may be, all FCC licenses and other authorizations relating to such stations to
be held by their respective License Subsidiaries. No License Subsidiary (a)
owns or holds any assets (including the ownership of stock or any other
interest in any Person) other than Operating Agreements and FCC licenses and
other authorizations relating to the Stations and Operating Agreements and FCC
licenses and other authorizations relating to any other stations acquired in
connection with Permitted Acquisitions, (b) is engaged in any business other
than the holding, acquisition and maintenance of FCC licenses and other
authorizations, (c) has any investments in any other Person or (d) owes any
Debt to any Person other than Intercompany Debt.
Section 4.30 Existing Debt. No Subsidiary of Borrower owes any Debt to
any Person other than Intercompany Debt, including the Intercompany Debt listed
on Schedule 4.30, and Debt listed on Schedule 1.1(D). Borrower owes no Debt to
any Person other than
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Intercompany Debt listed on Schedule 4.30, Debt listed on Schedule 1.1(D) and
Debt permitted by Section 6.1.
Section 4.31 Existing Subordinated Note Indenture. The Obligations of
Borrower under the Loan Documents constitute "Senior Debt" of the "Company",
this Agreement is a "Credit Agreement" and the Agent and the Lenders are the
"Lender" within the respective meanings ascribed to the quoted terms by the
Existing Subordinated Note Indenture, and the Agent and the Lenders will be
entitled to all the benefits afforded to the "Lender" under the "Credit
Agreement" by the Existing Subordinated Note Indenture, including, without
limitation, the second sentence of Section 10.02(b) thereof.
Section 4.32 1996 Indenture. The Obligations of Borrower under the
Loan Documents constitute "Senior Debt" of the "Company", this Agreement is the
"New Credit Agreement" and the Agent and the Lenders are the "holders of Senior
Debt" within the respective meanings ascribed to the quoted terms by the 1996
Indenture and the Agent and the Lenders will be entitled to all the benefits
afforded to the "holders of Senior Debt" by the 1996 Indenture.
ARTICLE V
AFFIRMATIVE COVENANTS
As long as the Lenders are committed to make Loans under this
Agreement and thereafter until the Obligations are paid and performed in full,
the Obligors jointly and severally covenant and agree with the Agent and the
Lenders as follows:
Section 5.1 Use of Proceeds. The Obligors shall use the proceeds of
Loans only as represented in Section 4.14. Borrower shall use the Letters of
Credit only as represented in Section 4.14 and in any Letter of Credit Request.
Section 5.2 Books and Records. Each Obligor shall maintain a system of
accounting established and administered in accordance with sound business
practices to permit preparation of consolidated and consolidating financial
statements and proper books of records and account and each of the financial
statements described in Section 5.3 shall be prepared from such system and
records.
Section 5.3 Items to be Furnished. Borrower shall cause the following
to be furnished to the Agent and each of the Lenders:
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(a) Annual Financial Statements. As soon as available, but in any
event no later than 90 days after the end of each fiscal year of Borrower (i)
audited consolidated Financial Statements of Borrower and its Subsidiaries,
including comparative figures from the prior fiscal year, certified by Ernst &
Young or other independent certified public accountants of recognized national
standing acceptable to the Agent, which report shall be certified without
qualification or modification and shall state that such financial statements
fairly present in all material respects the consolidated financial position of
Borrower and results of operations and cash flow for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years and that
the examination by such accountants in connection with such consolidated
financial statements has been made in accordance with generally accepted
auditing standards, and (ii) a Compliance Certificate with respect to such
Financial Statements.
(b) Quarterly Financial Statements. As soon as available but in any
event no later than 45 days after the end of each fiscal quarter of each fiscal
year (i) unaudited consolidated Financial Statements of Borrower and its
Subsidiaries as of the end of such fiscal quarter, and for the period from the
beginning of the then current fiscal year to the end of such fiscal quarter,
all prepared by Borrower and certified by its Chief Financial Officer as fairly
presenting in all material respects the consolidated financial position of
Borrower and its Subsidiaries and results of operations and cash flow for the
periods indicated (subject to normal year-end adjustments), which Financial
Statements shall include comparative figures from comparable periods in the
prior year and a comparison of actual results to those set forth in the Budget
for such period and (ii) a Compliance Certificate.
(c) Monthly Financial Statements. As soon as available but in any
event no later than 30 days after the end of each calendar month, unaudited
broadcast revenue and expense statements for each market as of the end of such
calendar month and for the period from the beginning of the then current fiscal
year to the end of such calendar month, including comparative figures from
comparable periods in the prior year and a comparison of actual results to
those set forth in the Budget for such period, all prepared by Borrower and
otherwise in form and detail satisfactory to the Agent.
(d) Budget. No later than thirty days prior to the end of each fiscal
year, the budget on a market-by-market basis for Borrower, its Subsidiaries and
each market to be entered into by any Obligor pursuant to a pending Permitted
Acquisition, prepared on a monthly basis (the "Budget"), for the next
succeeding fiscal year, setting forth in satisfactory detail the projected
revenues and expenses, including, without limitation, Capital Expenditures,
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broadcast revenues and expenses and Operating Cash Flow and the underlying
assumptions therefor.
(e) Accountant's Statement. Together with each delivery of the
Financial Statements referred to in Section 5.3(a), a written statement of
Ernst & Young or another firm of independent certified public accountants of
recognized national standing acceptable to the Agent giving the report stating
(i) that their audit examination has included a review of the terms hereof as
it relates to accounting matters, including a review of Borrower's calculations
relating to its compliance with Sections 6.8, 6.9, 6.14, and 6.19 through 6.24,
and (ii) whether, in connection with their audit examination, any condition or
event which constitutes an Event of Default or Default has come to their
attention, and if such condition or event has come to their attention,
specifying the nature and period of existence thereof. The statement referred
to above shall be accompanied by a copy of the management letter or any similar
report delivered to Borrower or to any officer or employee thereof by such
accountants in connection with such Financial Statements (or, if such
management letter or similar report is not delivered to Borrower or any such
officer or employee simultaneously with the issuance of such Financial
Statements, then Borrower shall cause such letter or report to be delivered to
the Agent and the Lenders promptly after the receipt thereof by Borrower or
such officer or employee). On prior notice to Borrower, Borrower shall
authorize the Agent and each Lender to communicate directly with such
accountants.
(f) Litigation; Defaults; ERISA; Material Adverse Effect; Collateral
Value. Promptly after any officer of any Obligor knows or has reason to know,
and in any event within five days after the discovery thereof, notice of (i)
the existence and status of any Litigation with respect to such Obligor which,
if adversely determined, could reasonably be expected to have a Material
Adverse Effect or, in any event, could reasonably be expected to require the
payment of an amount in excess of $250,000, (ii) any change in any material
fact or circumstance represented or warranted in this Agreement or any other
Loan Document, (iii) a Default or an Event of Default, specifying the nature
thereof and what action any Obligor has taken, is taking or proposes to take
with respect thereto, (iv) the occurrence of a reportable event (as defined in
ERISA) with respect to any Plan of any Obligor subject to ERISA, or the
complete or partial withdrawal from participation in a Multiemployer Plan by
any Obligor (or the intention of any Obligor to do so), or the initiation (or
intent to initiate) by the PBGC or any Obligor of proceedings under ERISA to
terminate any Plan, Multiple Employer Plan or Multiemployer Plan, or the
occurrence of any event or condition which might constitute grounds for
termination of any Plan, Multiple Employer Plan or Multiemployer Plan under
ERISA, (v) the occurrence of any event or circumstance which has caused or
could reasonably be expected to
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cause a material loss or decline in the value of any Collateral and the actual
or estimated amount of any such loss or decline or (vi) any other development
or event which has had or could reasonably be expected to have a Material
Adverse Effect.
(g) Regulatory Filings. Promptly after the filing or mailing thereof,
and in any event within five days thereafter, a copy of each material
application, statement, report, registration statement, notice or other filing
which is (i) filed with the FCC by or on behalf of any Obligor or any Affiliate
of any Obligor, or of which any Obligor or any Affiliate of any Obligor has
knowledge, with respect to or affecting a Station owned directly or indirectly
by any Obligor or any other station acquired by an Obligor pursuant to a
Permitted Acquisition, (ii) made with the Securities and Exchange Commission or
(iii) distributed to the public shareholders or debtholders of Borrower
generally, and, promptly on the request of any Lender, a copy of any other
statement, report, notice or other filing filed or made with (x) the FCC by or
on behalf of any Obligor or any Affiliate of any Obligor, or of which any
Obligor or any Affiliate of any Obligor has knowledge, (y) the Securities and
Exchange Commission or (z) any other Tribunal.
(h) Interruption of Broadcasting. Promptly after such occurrence, and
in any event within five days thereafter, notice of any situation in which
on-air broadcasting operations of any Station or any other station acquired by
any Obligor pursuant to a Permitted Acquisition are interrupted for more than
24 consecutive hours.
(i) Necessary Authorizations. Promptly after any officer of any
Obligor becomes aware thereof, and in any event within five days thereafter,
information and a copy of any notice received by any Obligor from the FCC or
other Tribunal or any Person that concerns (i) any event or circumstance that
could reasonably be expected to materially and adversely affect any Necessary
Authorization and (ii) any notice of abandonment, expiration, revocation,
material impairment, nonrenewal or suspension of any Necessary Authorization,
together with a written explanation of any such event or circumstance or the
circumstances surrounding such abandonment, expiration, revocation, material
impairment, nonrenewal or suspension.
(j) LMA Agreements; Material Leases. Promptly after any officer of any
Obligor becomes aware thereof, and in any event within five days thereafter,
notice of any default or breach of any term or provision by any Person in
connection with any LMA Agreement, any Material Lease or any other Contractual
Obligation of such Obligor, together with a written explanation of the
circumstances surrounding such default or breach and what action any Obligor
plans to take with respect thereto.
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(k) Information Regarding an acquisition, asset sale or asset
exchange. Prior to the closing of any acquisition, asset sale or asset exchange
not otherwise prohibited by the terms of this Agreement, where the value equals
or exceeds $15 million, provide the Lenders with: (i) pro forma projections for
the period from the end of the fiscal year of Borrower preceding the date on
which such information is provided through December 31, 2003; (ii) a Compliance
Certificate stating that the Borrower is in compliance with all covenants on a
pro forma basis after inclusion of the proposed transaction; and (iii) a
certificate stating that immediately before and after giving effect to the
proposed transaction all representations and warranties shall be true and
correct and no default or Event of Default shall exist.
(l) Environmental Notices. Promptly after receipt by any Obligor
thereof, and in any event within five days thereafter, notice of (i) any notice
or claim by any Tribunal or any other Person to the effect that any Obligor is
or may be liable to any Person, or is subject to an investigation by a
Tribunal, relating to a "release" or "threatened release", as such terms are
defined in CERCLA, of any Hazardous Substance into the environment, (ii) any
notice that any property of any Obligor is subject to an environmental Lien,
(iii) any commencement or written threat of any proceeding by any Tribunal
alleging a violation by any Obligor of any Environmental Law or a condition
that may create liability under an Environmental Law or (iv) any changes to an
existing Environmental Law that could reasonably be expected to have a Material
Adverse Effect.
(m) Insurance. Within ninety (90) days after the end of each fiscal
year of Borrower, Borrower shall deliver to the Agent (i) a report in form and
substance satisfactory to the Agent and the Lenders outlining all material
insurance coverage (including any self-insurance provided by Borrower)
maintained as of the date of such report by any Obligor and the duration of
such coverage and (ii) to the extent such insurance coverage is not provided by
Borrower, an insurance broker's statement that all premiums then due and
payable with respect to such coverage have been paid.
(n) Mortgagee Policies of Title Insurance. As requested at any time by
the Agent, mortgagee policies of title insurance in the amounts set forth on
Schedule 5.3(n), insuring that the Mortgages create in favor of the Agent for
the ratable benefit of the Lenders a first priority Lien on the real property
covered by such Mortgages and showing a state of title and exceptions thereto,
if any, acceptable to the Agent and containing such endorsements as the Agent
may require.
(o) Surveys. To the extent required by the Agent and reasonably
available to Borrower, an as-built survey of the site of each tract of real
property covered by each Mortgage certified to
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the Lenders, their successors and assigns, and the title insurance company
issuing mortgagee policies of title insurance in a manner satisfactory to them,
dated a date satisfactory to the Agent and such title insurance company by an
independent professional licensed land surveyor satisfactory to the Agent and
such title insurance company, which surveys shall be made in accordance with
the Minimum Standard Detail Requirements for Land Title Surveys jointly
established and adopted by the American Land Title Association and the American
Congress on Surveying and Mapping in 1992, and, without limiting the generality
of the foregoing, there shall be surveyed and shown on such surveys the
following: (i) the locations on such sites of all the buildings, structures and
other improvements and the established building setback lines; (ii) the lines
of streets abutting the sites and width thereof; (iii) all access and other
easements appurtenant to the sites or necessary or desirable to use the sites;
(iv) all roadways, paths, driveways, easements, encroachments and overhanging
projections and similar encumbrances affecting the site, whether recorded,
apparent from a physical inspection of the sites or otherwise known to the
surveyor; (v) any encroachments on any adjoining property by the building
structures and improvements on the sites; and (vi) if the site is described as
being on a filed map, a legend relating the survey to said map.
(p) Other Information. Promptly after receipt of a request therefor by
the Agent, and in any event within five days thereafter or such longer period
of time as the Agent shall agree, such information respecting the business,
affairs, books, assets, Collateral or liabilities of any Obligor, the reported
ratings for any radio broadcast station owned by any Obligor and such other
information, as the Agent or any Lender may reasonably request from time to
time.
Section 5.4 Inspection. Each Obligor shall permit any Lender or any
agent, officer, employee, expert or consultant thereof to (a) visit and inspect
any of such Obligor's properties, prior to a Default, on reasonable notice and
during reasonable business hours and, after a Default, at any time and (b)
discuss any of its affairs, conditions and finances with its directors,
officers, agents, accountants or employees from time to time. Subject to the
foregoing, each Obligor shall on reasonable notice and during reasonable
business hours permit any officer or employee of, or any agent or consultant
designated by any Lender to have access to, examine and inspect the books,
assets and Collateral of such Obligor and to audit and make extracts from such
Obligor's records, files and books of account, all at the expense of such
Obligor after and during the continuance of an Event of Default, including the
cost of experts or consultants hired by such Lender in connection with such
inspection. Each Obligor hereby authorizes all duly constituted federal, state
and municipal authorities to furnish to any Lender or any agent, officer,
employee, expert or
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consultant thereof, copies of any reports of examination of such Obligor which
have been made by such authorities.
Section 5.5 Taxes. The Obligors shall pay when due any and all Taxes,
except Taxes for which the criteria for Permitted Liens have been satisfied.
Section 5.6 Maintenance of Corporate Existence, Assets, and Business.
Each Obligor shall: (a) maintain its corporate existence and authority to
transact business and good standing in its jurisdiction of incorporation and
all other jurisdictions where the failure to maintain such existence, authority
or good standing could reasonably be expected to have a Material Adverse
Effect, (b) keep all of its property and assets that are useful in and
necessary to its business in good working order and condition and make all
necessary repairs thereto and replacements thereof so that the value and
operating efficiency thereof shall at all times be maintained and preserved and
(c) prevent any of its equipment from becoming a fixture to real property or an
accession to personal property not owned by any Obligor.
Section 5.7 Insurance; Condemnation.
(a) Each Obligor shall, at its sole cost and expense, keep and
maintain (i) insurance coverage on all improvements to real property and
tangible personal property owned or leased by it in amounts not less than the
full replacement cost of such improvements and the net book value of such
tangible personal property and (ii) other insurance against loss or damage by
fire, theft, explosion, liability, business interruption and all other hazards,
risks and contingencies ordinarily insured against by other owners or users of
such properties in similar businesses of comparable size. Notwithstanding the
foregoing, all policies of insurance shall be in a form and in an amount, with
such deductibles and with insurers recognized as financially sound and
reputable by prudent business Persons in the same businesses as the Obligors,
acceptable to the Agent. Such policies of insurance and the certificates
evidencing the same shall contain an endorsement, in form and substance
acceptable to the Agent, showing losses payable to the Agent for the ratable
benefit of the Lenders and listing the Agent and each Lender as additional
insureds, in each case, as their respective interests may appear. Such
endorsement or an independent instrument furnished to the Agent shall provide
that the insurance companies will give the Agent at least thirty days prior
written notice before any such policy or policies of insurance expire or before
a payment is made in the case of loss or damage. Upon the payment by the
insurer to the Agent of the proceeds of any policy of insurance, as long as no
Default or Event of Default exists, the Obligors shall have the use of such
insurance proceeds if such proceeds are used to repair or replace
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the property the damage or destruction of which gave rise to the payment of
such insurance proceeds; provided that (i) any insurance proceeds that are not
used or designated for such repair or replacement within one year after receipt
thereof or (ii) if no Obligor has commenced the process of restoration or
replacement of the damaged property (including the making of appropriate
governmental filings and/or requests for governmental approval) within 45 days
after the related casualty or (iii) if such Obligor has failed to diligently
pursue to completion the repair or replacement of the damaged property, then
such proceeds shall be retained by the Agent and applied as a prepayment on the
Loans in the manner and with the effect provided for in Section 2.5.
(b) All proceeds derived from any condemnation or taking of any
property of any Obligor, or any private sale made in lieu thereof, shall be
paid to the Agent and, as long as no Default or Event of Default exists, the
Obligor shall have use of such proceeds if such proceeds are used to repair or
replace the property so condemned or taken or sold; provided that (i) any
condemnation proceeds that are not used or designated for such repair or
replacement within one year after receipt thereof by the Agent or (ii) if no
Obligor has commenced the process of such restoration or replacement (including
the making of appropriate governmental filings and/or requests for governmental
approval) within 45 days after the receipt of such proceeds by the Agent or
(iii) if such Obligor has failed to diligently pursue to completion such repair
or replacement, then such proceeds shall be retained by the Agent and applied
as a prepayment of the Loans in the manner and with the effect provided for in
Section 2.5.
Section 5.8 Compliance with Applicable Laws. Each Obligor shall comply
with all applicable Laws and maintain all material licenses (including FCC
licenses), authorizations and permits, except where any such failure or the
aggregate of all such failures could not reasonably be expected to have a
Material Adverse Effect and obtain, maintain in full force and effect and
comply with all Necessary Authorizations for its respective business.
Section 5.9 Environmental Laws. Each Obligor shall comply in all
material respects with all Environmental Laws applicable to its business and
shall promptly take corrective action to remedy any non-compliance with any
Environmental Law. Each Obligor shall establish and maintain at its expense a
system which, in the reasonable business judgment of Borrower, will assure and
monitor continued compliance with Environmental Laws by any and all owners or
operators of its real property, which system shall include annual review of
such compliance by employees or agents of the Obligors who are familiar with
the requirements of the Environmental Laws.
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Section 5.10 Further Assurances. Each Obligor shall make, execute or
endorse, and acknowledge and deliver or file, or cause the same to be done, all
such notices, certifications, documents, instruments and agreements, and shall
take or cause to be taken such other actions as the Agent may, from time to
time, deem reasonably necessary or appropriate in connection with this
Agreement or any of the other Loan Documents and the obligation of such Obligor
to carry out the terms and conditions of this Agreement and the other Loan
Documents to which it is a party, including, without limitation, each Obligor
shall perform such acts and duly authorize, execute, acknowledge, deliver, file
and record such additional assignments, security agreements, deeds of trust,
mortgages, financing statements, and other agreements, documents, instruments
and certificates as the Agent may deem reasonably necessary or appropriate in
order to create, perfect and maintain the Liens in favor of the Agent for the
benefit of the Lenders in and to the Collateral and preserve and protect the
Rights of the Lenders hereunder, under the other Loan Documents and in and to
the Collateral. Each Obligor acknowledges that certain transactions
contemplated by this Agreement and the other Loan Documents, and certain
actions which may be taken by the Agent or the Lenders in the exercise of their
Rights under this Agreement or any other Loan Document, may require the consent
of the FCC. If the Agent reasonably determines that the consent of the FCC is
required in connection with the execution, delivery or performance of any of
the aforesaid documents or any documents delivered to the Agent or the Lenders
in connection therewith or as a result of any action which may be taken or be
proposed to be taken pursuant thereto, then each Obligor, at its sole cost and
expense, shall use its best efforts to secure such consent and to cooperate
with the Agent and the Lenders in any such action taken or proposed to be taken
by the Agent or any Lender.
Section 5.11 Contractual Obligations. Each Obligor shall (a) pay on or
before the respective due dates thereof all rents and other amounts payable
under any Material Lease or other Contractual Obligation material to the
business and operations of any Obligor and (b) timely and fully observe and
perform all of the terms, covenants, agreements and conditions of each Material
Lease and such other Contractual Obligations required to be observed and
performed by any Obligor except where any such failure or the aggregate of all
such failures could not reasonably be expected to result in the loss of a
Necessary Authorization or otherwise could not be reasonably expected to have a
Material Adverse Effect; provided, however, that nothing in this Section 5.12
is intended or shall be construed to affect in any way the Rights of the Agent
and the Lenders to enforce the provisions of Article 10 of the Existing
Subordinated Note Indenture against the parties thereto and the holders of the
Existing Subordinated Notes and Articles 10 and 11 of the 1996 Indenture
against the parties thereto and the holders of the New Notes.
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Section 5.12 New Subsidiaries/Collateral.
(a) Subject to Section 6.3, at the time of the formation of, or at the
time of the acquisition or acquisition through an exchange of any Subsidiary
not identified on Schedule 4.4(D), Borrower shall notify the Agent in writing
thereof and shall cause such Subsidiary to promptly thereafter execute and
deliver to the Agent, for the benefit of the Lenders, to secure, guarantee and
otherwise ensure the payment and performance of the Obligations, an assumption
agreement, in the form of Exhibit T, and shall execute and deliver any
financing statements and such other agreements, mortgages, documents,
instruments and certificates as the Agent may from time to time, in its
discretion, request, all in form and substance satisfactory to the Agent.
(b) To secure full and complete payment and performance of the
Obligations, on or prior to the Closing Date and at such other times as the
Agent shall request, each Obligor shall grant and convey to, and create in
favor of, the Agent for the ratable benefit of the Lenders, a continuing first
priority perfected Lien in, to and on the following items and types of
property, including all proceeds thereof, all as more particularly described in
the Loan Documents:
(i) all of such Obligor's present and future assets, including,
without limitation, its equipment, inventory, goods, accounts,
accounts receivable, instruments, documents, chattel paper,
securities, general intangibles, intellectual property, fixtures and
real estate, other than FCC licenses or authorizations to the extent
prohibited by Law; and
(ii) all of the capital stock of each Subsidiary of such Obligor,
now owned or hereafter acquired by such Obligor, and all cash and
noncash distributions or other proceeds thereof or with respect
thereto.
The foregoing items and types of property generally described above subject to
such Liens securing the Obligations are collectively referred to herein as the
"Collateral".
Section 5.13 Further Documentation. In the event that stations
WBAB-FM, WHFM-FM, WBLI-FM and WGBB-AM in Long Island shall not be exchanged as
permitted by and in accordance with Section 6.14(b)(ii) within 150 days from
the date hereof, Borrower shall cause to be promptly delivered to the Agent,
the documents described in Section 3.1(c), and such other documentation as the
Agent may from time to time, in its discretion request, all in form and
substance satisfactory to the Agent.
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ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments are terminated and the Obligations are paid and
performed in full, the Obligors jointly and severally covenant and agree with
the Agent and the Lenders as follows:
Section 6.1 Debt. No Obligor will, directly or indirectly, create,
incur or assume or otherwise become liable with respect to or suffer to exist
any Debt other than Permitted Debt.
Section 6.2 Liens. No Obligor will, directly or indirectly (a) create
or suffer to exist or permit to be created any Lien on any of its assets other
than Permitted Liens or (b) enter into or permit to exist any arrangement or
agreement that, directly or indirectly, prohibits any Obligor from creating or
incurring any Lien on any of its assets other than the Loan Documents, the
Existing Subordinated Note Indenture and the 1996 Indenture.
Section 6.3 Investments. Except as set forth on Schedule 6.3, as of
the date of this Agreement, no Obligor has outstanding any loans, advances or
other extensions of credit (other than trade credit on customary terms) to any
Person or any other investments in any Person other than the Subsidiaries of
the Borrower listed on Schedule 4.4(D). No Obligor will, directly or indirectly
(a) loan, advance or otherwise extend credit (other than trade credit on
customary terms) to or contribute capital to, any Person, including, without
limitation, purchase any Debt or accounts receivable from such Person or (b)
purchase or commit to purchase any stock, bonds, notes, debentures or other
securities of, evidences of Contractual Obligations of, or partnership or joint
venture or any other interests in, or all or substantially all of the assets or
any assets constituting a business unit of, or make any other investment in,
any Person, other than (v) Permitted Investments, (w) loans, advances or other
extensions of credit constituting Intercompany Debt, (x) transactions permitted
by Section 6.5, subject to the limitation imposed by the Acquisition Deposit
Cap; (y) securities received as partial consideration in a sale or exchange
transaction permitted by Section 6.14; (z) repurchases or redemptions of
capital stock or other securities provided for under Section 6.12; (aa)
redemptions of the Borrower's Existing Subordinated Notes and (ab) Permitted
Acquisitions as long as no Default or Event of Default exists at the time of
any such acquisition or would exist after giving effect thereto.
Section 6.4 Deposits. No Obligor shall make cash deposits or option
fee payments with, or have issued a Letter of Credit for the benefit of, any
Person other than in connection with a proposed Permitted Acquisition provided
however, that if a
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borrowing or Letter of Credit is requested for the purpose of funding a cash
deposit, or providing security in lieu thereof, or for an option fee payment,
in connection with a proposed Permitted Acquisition, Borrower shall certify to
the Agent and the Lenders in the Funding Certificate that, after making such
borrowing or after the issuance of such Letter of Credit, the aggregate amount
of the face amount of all issued and undrawn Letters of Credit (other than any
Letter of Credit that has expired or has been cancelled) and all outstanding
cash deposits or option fee payments, in each case, issued for the account of
Borrower or made by the Obligors, as the case may be, in connection with
proposed Permitted Acquisitions which have not been consummated does not exceed
$30,000,000 (the "Acquisition Deposit Cap").
Section 6.5 Limitation on Fundamental Changes. No Obligor will,
directly or indirectly, enter into any merger, consolidation or amalgamation,
or liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease, assign, transfer or otherwise dispose of,
all or substantially all of its property, business or assets, or make any
material change in its present method of conducting business, except (a) any
Subsidiary of Borrower may be merged or consolidated with or into Borrower
(provided that Borrower shall be the continuing or surviving corporation) or
another Subsidiary of Borrower, (b) any Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to Borrower or another Subsidiary of Borrower, (c) any Subsidiary
may reorganize or convert into a different form of business entity provided
that such new entity remains a Subsidiary hereunder, (d) any Subsidiary which
has no material assets or liabilities as of the date of this Agreement and as
of the date of liquidation or dissolution may liquidate or dissolve itself, and
(e) as provided for in Section 6.14. Notwithstanding the foregoing, no License
Subsidiary shall own or hold any assets other than Operating Agreements and FCC
licenses and other authorizations relating to the Stations and Operating
Agreements and FCC licenses and other authorizations relating to any other
stations acquired pursuant to Permitted Acquisitions or engage in any business
other than the ownership (or holding), acquisition and maintenance of Operating
Agreements and FCC licenses and other authorizations.
Section 6.6 Transactions with Affiliates. No Obligor will, directly or
indirectly, enter into or suffer to exist any transaction (including, without
limitation, the lease, purchase, sale or exchange of property or the rendering
of service) with any of its Affiliates, except (i) executive compensation
arrangements in the form of salary, bonuses or stock options approved by
Borrower's Board of Directors in accordance with the by-laws of Borrower and
(ii) as set forth on Schedule 6.6.
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Section 6.7 Employee Benefit Plans. Borrower shall not and shall not
permit any ERISA Affiliate to:
(a) Do any of the following, which, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect:
(i) Engage in any transaction or other action or failure to act
which it knows or has reason to know could result in a civil penalty
being assessed pursuant to section 502(i) of ERISA, a Tax being
imposed under Subtitle D, Chapter 43 of the Code, or an addition to
Tax or penalty being imposed under Subtitle F, Chapter 68 of the Code;
(ii) Fail to make any payments when due to any Multiemployer Plan
that Borrower or an ERISA Affiliate is required to make under any
agreement relating to such Multiemployer Plan or any Law pertaining
thereto;
(iii) Incur withdrawal liability under ERISA to a Multiemployer
Plan;
(iv) Voluntarily terminate or, in the case of a "substantial
employer" as defined in section 4001(a)(2) of ERISA, withdraw from any
Plan or Multiple Employer Plan if such termination or withdrawal could
reasonably result in the imposition of a Lien on Borrower or an ERISA
Affiliate under section 4068 of ERISA;
(v) Fail to make any required contribution when due to any Plan
subject to section 412(n) of the Code that, with the passage of time,
could result in a Lien upon the properties or assets of Borrower or an
ERISA Affiliate;
(vi) Adopt any amendment to a Plan the effect of which is to
materially increase the "current liability" under the Plan as defined
in section 302(d)(7) of ERISA;
(vii) Incur any liability to the PBGC or to a trustee appointed
under section 4042(b) of ERISA (other than required insurance
premiums); or
(viii) Act or fail to act, and, as a result thereof, an event
similar to any of those referred to in clauses (i) through (vii) could
occur under the applicable Law of a foreign country;
(b) Permit the present value of all benefits (irrespective of whether
vested) under all Plans that have assets
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less than benefits (irrespective of whether vested) to exceed the "current
value", as defined in section 3(26) of ERISA, of the assets of such Plans by an
aggregate amount which could reasonably be expected to have a Material Adverse
Effect;
(c) Permit an adoption, implementation or amendment of any unfunded
deferred compensation agreement or other arrangement of a similar nature,
irrespective of whether subject to the funding requirements of ERISA, which
could reasonably be expected to have a Material Adverse Effect;
(d) Permit any failure to comply with the requirements of sections
162(k) or 4980B of the Code or Part 6 of Title I of ERISA (and their
successors) which could reasonably be expected to have a Material Adverse
Effect;
(e) Permit the liability under any Welfare Plan to any former employee
of Borrower or of any ERISA Affiliate to increase beyond that existing on the
date of this Agreement under circumstances which could reasonably be expected
to have a Material Adverse Effect; or
(f) (i) Engage in any conduct which constitutes a "prohibited
transaction" (as defined in section 406 of ERISA or section 4975 of the
Code) which could reasonably be expected to result in a material liability
to Borrower or any ERISA Affiliate;
(ii) Permit to exist any material "accumulated funding deficiency"
(as defined in section 302 of ERISA or section 412 of the Code), whether or
not waived, with respect to any Plan or Multiple Employer Plan, if such
accumulated funding deficiency would give rise to a material liability of
Borrower or any ERISA Affiliate;
(iii) Apply for or be granted a funding waiver under section 302
of ERISA or section 412 of the Code, which waiver or request for waiver is
for a material amount;
(iv) Occur a reportable event as defined in section 4043 of ERISA
with respect to any Plan or Multiple Employer Plan, which reportable event
is likely to result in the termination of such Plan or Multiple Employer
Plan for purposes of Title IV of ERISA and to give rise to a material
liability of Borrower or any ERISA Affiliate;
(v) Permit to be filed a notice of intent to terminate a Plan or
Multiple Employer Plan under section 4041(c) with the PBGC if such
termination would give rise to material liability of Borrower or any ERISA
Affiliate;
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(vi) Permit any Multiemployer Plan to reorganize or become
insolvent in connection with which the circumstances are such that there
could reasonably be a material liability incurred by or imposed upon
Borrower or any ERISA Affiliate;
(vii) Permit a complete or partial withdrawal from a Multiemployer
Plan under circumstances that could reasonably subject Borrower or any
ERISA Affiliate to material liability;
(viii) Permit any Lien arising under section 4068 of ERISA or
section 412(n) of the Code to attach to the assets or property of Borrower
or any ERISA Affiliate which could reasonably be expected to result in a
Material Adverse Effect;
(ix) Permit, through action or failure to act, any Plan to fail to
meet the requirements of section 401(a) or 403(a) of the Code and such
failure could reasonably be expected to give rise to a material liability
of Borrower or any ERISA Affiliate; or
(x) Permit any event or condition described in (i) through (ix)
above (determined without regard to whether the event or condition taken
alone would or could result in a material liability) to occur or exist with
respect to a Plan, Multiple Employer Plan or Multiemployer Plan which
individually or in combination with one or more of any events described in
(i) through (ix) above (determined without regard to whether the event or
condition taken alone would or could result in a material liability), if
any, could subject Borrower or any ERISA Affiliate to any material excise
Tax, penalty, addition to tax or other liability.
Section 6.8 Capital Expenditures. No Obligor will, directly or
indirectly, make or incur any Capital Expenditures (a) during its fiscal year
ending December 31, 1996, except for Capital Expenditures made or incurred
which, when aggregated with all Capital Expenditures of all other Obligors made
or incurred during such fiscal year, would not exceed $10,000,000, (b) during
its fiscal year ending December 31, 1997, except for Capital Expenditures made
or incurred which, when aggregated with all Capital Expenditures of all other
Obligors made or incurred during such fiscal year, would not exceed
$10,000,000, (c) during its fiscal year ending December 31, 1998, except for
Capital Expenditures made or incurred which, when aggregated with all Capital
Expenditures of all other Obligors made or incurred during such fiscal year,
would not exceed $7,000,000 and, thereafter (d) during any fiscal year, except
for Capital Expenditures made or incurred which, when aggregated with all
Capital Expenditures of all other Obligors made or incurred during such fiscal
year, would not exceed $5,500,000 for such fiscal year (in each case, the
"Capital Expenditure Cap"); provided, however, if the Capital
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Expenditure Cap exceeds the amount of Capital Expenditures made or incurred by
the Obligors for such fiscal year, then such excess amount shall be carried
forward to each succeeding fiscal year on a cumulative basis and Capital
Expenditures made or incurred by the Obligors for each succeeding fiscal year
may exceed the Capital Expenditure Cap for such succeeding fiscal year by the
amount of such excess carried forward on a cumulative basis from each preceding
fiscal year.
Section 6.9 Operating Lease Obligations. No Obligor will create, incur
or assume or otherwise become liable with respect to or suffer to exist during
any fiscal year obligations in respect of Operating Leases which, when
aggregated with all such Operating Lease obligations of all other Obligors for
such fiscal year, would exceed $8,000,000.
Section 6.10 Sale and Leaseback Transactions. No Obligor will,
directly or indirectly, enter into any Sale and Leaseback Transaction.
Section 6.11 Management Agreements. No Obligor will, directly or
indirectly, enter into any transaction whereby such Obligor is obligated to pay
any management, consulting or similar fee to any Person, except as set forth on
Schedule 6.6.
Section 6.12 Restricted Payments. No Obligor shall make a Restricted
Payment, except (i) any Obligor may make a Restricted Payment to Borrower and
(ii) so long as no Default or Event of Default would exist before or after
giving effect thereto, Restricted Payments shall be permitted with respect to:
(i) cash dividends equal to 6% per annum of the liquidated preference for the
Series C Preferred Stock in accordance with the terms thereof on the date
hereof, (ii) any cash dividends payable on the Borrower's Series D Preferred
Stock in accordance with the terms thereof as in effect on the date hereof,
(iii) redemptions of the Series C Preferred Stock pursuant to the exercise of
the put rights maintained by the holder of such shares in accordance with the
terms of the Dallas Acquisition, (iv) scheduled redemptions of the Borrower's
Series B Preferred Stock in accordance with the terms thereof as in effect on
the date hereof, (v) the redemption of the MMR Warrants in an amount not to
exceed $250,000, (vi) any redemption of up to a 4% minority interest held in
ABS, (vii) the repurchase of up to $150,000 of MMR stock options held by Xxxxx
Xxxxxx and (viii) up to $25,000,000 in repurchases of the Borrower's stock or
warrants, other than any stock specified in clauses (iii) and (iv) above
provided that the Total Leverage Ratio is less than or equal to 4.5 to 1.0
before and after giving effect thereto.
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Section 6.13 Issuance of Securities. No Obligor will, directly or
indirectly, issue, sell or otherwise dispose of (a) any of its shares of
capital stock or any other investment securities of any class, (b) any
securities convertible into or exchangeable for any such shares or (c) any
warrants, options, rights to subscribe for or purchase any such shares or other
rights with respect to such shares, except that, (i) Borrower may issue from
time to time securities to employees, officers, or directors of Borrower, or to
consultants providing bona fide services to Borrower or a Subsidiary of
Borrower on commercially reasonable terms, in either case pursuant to any stock
option, stock bonus or other employee benefit plan approved by the board of
directors of Borrower, unless, at the time when such plan is approved, or at
the time when rights under any such plan are exercised, in either case on a
fully diluted basis, a Default or Event of Default would exist after giving
effect thereto and by reason thereof or after giving effect to and by reason of
the exercise by such employees, officers or directors of their respective
rights thereunder (including, an Event of Default of the nature described in
Section 7.11) and (ii) Borrower may issue common equity provided no Default or
Event of Default would exist after giving effect thereto and by reason thereof
(including an Event of Default of the nature described in Section 7.11).
Section 6.14 Sale of Assets, Exchange of Assets and Permitted
Acquisitions.
(a) Sale of Assets. No Obligor shall, directly or indirectly, sell,
lease, transfer or otherwise dispose of any of its assets except as permitted
by Section 6.5, and so long as no Default or Event of Default would exist
before or after giving effect thereto, other than:
(i) dispositions of equipment from time to time if such equipment
is obsolete or no longer useful in the ordinary course of business of any
Obligor; provided, however, the aggregate amount of all such dispositions for
all Obligors shall not exceed $500,000 in any fiscal year;
(ii) the Scheduled Asset Sales;
(iii) the sale at not less than fair market value of MMR station
XXXX-FM in Little Rock, Arkansas;
(iv) other assets provided that:
(A) the BCF attributable to all radio broadcast stations
sold and/or exchanged during the preceding one-year
period ending on the date of the proposed sale
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shall not exceed 15% of the BCF of the Borrower;
(B) the BCF attributable to all radio broadcast stations
sold and/or exchanged since the date of this Agreement,
after giving effect to the proposed sale shall not
exceed 25% of the BCF of the Borrower;
(C) fair value is received by any of the Obligors; and
(D) at least 75% of the consideration to be received by any
of the Obligors is in the form of cash or cash
equivalents.
(b) Exchange of Assets. No Obligor shall, directly or indirectly,
exchange any of its assets except as permitted by Section 6.5, and so long as
no Default or Event of Default would exist before or after giving effect
thereto, other than:
(i) KRLD-AM and the Texas State Networks in Dallas, Texas for
KKRW-FM in Houston, Texas;
(ii) WBAB-FM, WHFM-FM, WBLI-FM and WGBB-AM in Long Island for
stations WFYW-FM and WAPE-FM in Jacksonville, Florida;
(iii) KTXQ-FM and KRRW-FM in Dallas, Texas for station WHFS-FM
serving Washington DC/Baltimore, Maryland; and
(iv) other assets provided that:
(A)(1) the BCF attributable to all radio broadcast stations
sold and/or exchanged during the one-year period ending on
the date of the proposed exchange shall not exceed 15% of
the BCF of the Borrower;
(2) the BCF attributable to all radio broadcast
stations sold and/or exchanged since the date of this
Agreement, after giving effect to the proposed exchange,
shall not exceed 25% of the BCF of the Borrower; and
(3) fair value is received by any of the Obligors; and
(4) at least 75% of the consideration to be received by
any of the Obligors is in the
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form of a radio broadcast station or other assets used in
the broadcast of radio programming and/or cash or cash
equivalents.
(B) the assets received by any of the Obligors pursuant to
such exchanges qualify as a Permitted Acquisition.
(c) Permitted Acquisitions. So long as no Default or Event of Default
would exist before and after giving effect thereto, the Permitted Acquisitions
will each be allowed.
Section 6.15 Redemption of Notes. The Borrower shall not redeem any
portion of the New Notes prior to the scheduled maturity of the New Notes.
Section 6.16 Hazardous Substances. No Obligor will permit the
manufacture, storage, transmission, presence, release, discharge or disposal of
any Hazardous Substance over, upon or under any of the real property owned or
leased by it or otherwise used by it in its business except as permitted by
Law. No Obligor will cause or suffer any Liens to be recorded against any of
its real property owned or leased by it or otherwise used by it in its business
as a consequence of, or in any way related to, the presence, remediation or
disposal of Hazardous Substances in, on, under or about any of such real
property, including any so-called "superfund" Lien relating to such matters.
Section 6.17 New Businesses. No Obligor will, directly or indirectly,
engage in any business other than the radio broadcast business and activities
incidental or related thereto.
Section 6.18 Fiscal Year and Accounting Methods. Borrower will not
change its fiscal year or method of accounting (other than immaterial changes
in methods).
Section 6.19 Fixed Charge Coverage Ratio. Borrower will not permit the
Fixed Charge Coverage Ratio at any fiscal quarter end to be less than 1.05 to
1.00.
Section 6.20 Pro Forma Interest Expense Ratio. Borrower will not
permit the Pro Forma Interest Expense Ratio at any fiscal quarter end to be
less than:
PERIOD RATIO
On the date of this Agreement
through and including December 1.25 to 1.00
31, 1997:
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January 1, 1998 through and
including December 31, 1998: 1.50 to 1.00
January 1, 1999 through and
including December 31, 2000: 1.75 to 1.00
January 1, 2001 and 2.00 to 1.00
thereafter:
Section 6.21 Total Leverage Ratio. Borrower will not permit the Total
Leverage Ratio at any time to exceed:
PERIOD RATIO
The date of this Agreement
through and including March 7.00 to 1.00
30, 1997:
March 31, 1997 through and
including September 29, 1997: 6.75 to 1.00
September 30, 1997 through and
including June 29, 1998: 6.50 to 1.00
June 30, 1998 through and
including June 29, 1999: 6.00 to 1.00
June 30, 1999 through and
including June 29, 2000: 5.50 to 1.00
June 30, 2000 through and
including December 30, 2000: 5.00 to 1.00
December 31, 2000 and 4.75 to 1.00
thereafter:
Notwithstanding the foregoing, as a condition precedent to the funding
of a Permitted Acquisition, the Total Leverage Ratio of the Borrower shall not
exceed the lesser of: (a) 6.75 to 1.0 and (b) the applicable Total Leverage
Ratio covenant.
Section 6.22 Senior Leverage Ratio. Borrower will not permit the
Senior Leverage Ratio at any time to exceed:
PERIOD RATIO
The date of this Agreement
through and including March 2.50 to 1.00
30, 1997:
March 31, 1997 through and
including June 29, 1998: 2.25 to 1.00
June 30, 1998 and thereafter: 2.00 to 1.00
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Section 6.23 Pro Forma Debt Service Ratio. Borrower will not permit
the Pro Forma Debt Service Ratio at any fiscal quarter end to be less than 1.10
to 1.00.
Section 6.24 Market Concentration. The BCF associated with the
stations Borrower owns and/or operates in a single market shall not exceed 25%
of Borrower's BCF.
Section 6.25 Material Agreements.
(a) No Obligor will enter into any amendment, modification or waiver
of any term or provision of the 1996 Indenture without the prior consent of the
Required Lenders other than those amendments, modifications or waivers which
are not adverse to the interests of the Lenders.
(b) No Obligor will, directly or indirectly (i) enter into or suffer
to exist a participation in any partnerships, joint ventures or management
agreements, other than LMA Agreements or (ii) except as required by the FCC,
agree to any extension or termination of or amendment, modification or waiver
of any material terms of any LMA Agreement without the prior consent of the
Required Lenders.
(c) No Obligor will amend or modify any Intercompany Note without the
prior consent of the Required Lenders. No Obligor will incur or permit to exist
any Debt owing to any other Obligor that is not evidenced by any Intercompany
Note.
(d) No Obligor will repeal, amend or modify its Charter Documents
without the prior consent of the Required Lenders if the effect of any thereof
could reasonably be expected to materially and adversely affect the Rights of
the Lenders and the Agent in or to any Collateral or under or pursuant to any
Loan Document or affect or impede the performance by any Obligor of any of its
obligations under any Loan Documents to which it is a party or otherwise could
reasonably be expected to have a Material Adverse Effect. Each Obligor shall
promptly notify the Agent of any such action with respect to its Charter
Documents and deliver copies to the Agent of any and all agreements or
documents effecting the same whether or not there is any expectation of an
adverse consequence therefrom.
(e) From and after the date which is 90 days after the date of this
Agreement (or if an Operating Subsidiary is formed or acquired by the Borrower
after the date hereof, from and after the date which is 60 days after such
formation or acquisition), no Operating Subsidiary shall operate, manage or
direct the day-to-day operations of any Station or any station acquired
pursuant to a Permitted Acquisition or a permitted asset exchange unless it has
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entered into an Operating Agreement with a License Subsidiary and such
Operating Agreement is in full force and effect.
ARTICLE VII
DEFAULT
The term "Event of Default" means the occurrence of any one or more of
the following events:
Section 7.1 Payment of Obligations. The failure of any Obligor to pay
the Reimbursement Obligations or the principal amount of any Loans as the same
become due and payable pursuant to the terms hereof or any other Loan Document;
or the failure of any Obligor to pay any other Obligation as the same becomes
due and payable and such failure continues for a period of three days.
Section 7.2 Certain Covenants. The failure or refusal of any Obligor
to punctually and properly perform, observe and comply with any covenant,
agreement or condition of Section 5.1, 5.3(f), 5.3(h) through 5.3(l), 5.4, 5.5,
5.6(a), 5.6(c), 5.8, 5.9, 5.12 or Article VI or an Event of Default occurs
under and as such term is defined in any Mortgage.
Section 7.3 Other Covenants. The failure or refusal of any Obligor to
punctually and properly perform, observe and comply with any covenant,
agreement or condition contained herein or in any of the other Loan Documents
(other than covenants to pay the Obligations and the covenants described in
Section 7.2) and such failure or refusal continues for a period of 30 days.
Section 7.4 Necessary Authorization and the Communications Act. The
occurrence of any of the following: (a) any proceeding shall be brought by any
Person challenging the validity or enforceability of any Necessary
Authorization except when such proceeding could not reasonably be expected to
have a Material Adverse Effect; (b) appropriate proceedings for the renewal of
any Necessary Authorization shall not be commenced at least 90 days prior to
the expiration thereof or any Necessary Authorization shall not be renewed 30
days prior to its expiration and in either case such nonrenewal could
reasonably be expected to have a Material Adverse Effect; (c) any Obligor shall
fail to comply with the Communications Act or any rule or regulation
promulgated by the FCC and such failure to comply results or could reasonably
be expected to result in a fine in excess of $100,000; (d) the FCC or other
Tribunal shall materially and adversely modify any Necessary Authorization or
shall suspend, revoke or terminate or shall commence proceedings to materially
and adversely modify, suspend, revoke or terminate any Necessary Authorization
and such proceedings shall not be dismissed or discharged within 60 days; or
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(e) any Contractual Obligation which is necessary to the operation of the
broadcasting operations of any Obligor shall be revoked or terminated and not
replaced by a substitute reasonably acceptable to the Required Lenders within
30 days after such revocation or termination.
Section 7.5 Interruption of Operations. Any Obligor's on-the-air
broadcasting operations are interrupted at any time for more than 48 hours
during any period of ten consecutive days, unless the broadcasting operations
of all or substantially all the radio stations in the relevant market are also
interrupted for a like period of time.
Section 7.6 Voluntary Debtor Relief. Any Obligor shall (a) execute an
assignment for the benefit of creditors, (b) admit in writing its inability to
pay its debts generally as they become due, (c) voluntarily seek the benefits
of any Debtor Relief Law or (d) take any corporate or partnership action to
authorize any of the foregoing.
Section 7.7 Involuntary Proceedings. An order for relief or other
order, judgment or decree shall be entered against any Obligor by any Tribunal
pursuant to any Debtor Relief Law in a case or proceeding in which such Obligor
is the subject of such case or proceeding as a "debtor" under the United States
Bankruptcy Code or similar status under any other Debtor Relief Law or a case
or other proceeding shall be commenced against any Obligor seeking relief or
any other benefit provided for by any Debtor Relief Law and such case or
proceeding shall continue undismissed or unstayed for a period of 60 days after
the commencement thereof.
Section 7.8 Final Orders. Any Final Order for the payment of money in
excess of $500,000 shall be rendered against any Obligor or any of its property
or assets and such Final Order shall not be satisfied in accordance with its
terms and (a) shall continue in effect for 60 days or (b) enforcement
proceedings shall have been commenced thereon.
Section 7.9 Default Under Other Debt. Any Obligor shall default (a) in
any payment of principal of or interest on any of its Debt beyond any period of
grace provided with respect thereto or (b) in the performance of any other
agreement, condition or term in any agreement or instrument under or by which
any such Debt is created, evidenced or secured if the effect of such default is
to cause, or to permit the holder(s) of such Debt or the trustee(s) or other
representative(s) under any such agreement or instrument to cause, such Debt or
any installment thereof to become due prior to its stated or otherwise
scheduled maturity or to require an Obligor to purchase, repurchase or
otherwise acquire or retire, or to make an offer to purchase, repurchase or
otherwise acquire or retire, such Debt or any installment thereof, whether or
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not such default in payment or performance shall be waived by the holder(s) of
such Debt or such trustee(s) or other representative(s); provided, however,
that no Event of Default shall occur under this Section 7.9 if the amount of
all Debt of the Obligors as to which a default of the type referred to in this
Section 7.9 has occurred and is continuing does not exceed $500,000.
Section 7.10 Misrepresentation. Any statement, representation or
warranty herein or in any other Loan Documents or in any writing delivered to
the Agent or any Lender pursuant hereto or any other Loan Document is false,
misleading or erroneous in any material respect when made or deemed made.
Section 7.11 Change in Control. A Change of Control shall occur.
Section 7.12 Security Documents. Any Security Document shall at any
time after the execution and delivery thereof cease for any reason to be in
full force and effect or any Security Document shall cease to create, or the
Agent, as secured party or beneficiary thereunder, shall cease to hold for the
benefit of the Lenders, a valid and perfected, first priority Lien in and to or
on any of the Collateral covered thereby, subject only to Permitted Liens, or
any action or proceeding is commenced by any Person challenging the legal,
valid or binding nature of any Security Document or any Obligor shall seek to
repudiate its obligations under any thereof to which it is a party.
ARTICLE VIII
RIGHTS AND REMEDIES
Section 8.1 Remedies On Default. Should an Event of Default occur and
be continuing, the Agent shall, upon the direction of the Required Lenders, do
any one or more of the following: (a) declare the entire unpaid amount of the
Obligations or any part thereof immediately due and payable, whereupon such
Obligations shall be due and payable, without demand, presentment, protest,
notice of default, notice of protest, notice of intent to accelerate or any
other notice or action of any kind, all of which are hereby expressly waived by
each Obligor (provided that, upon the occurrence of an Event of Default under
Section 7.6 or 7.7, the entire unpaid amount of the Obligations shall
automatically become due and payable without demand, presentment, protest,
notice of default, notice of protest, notice of intent to accelerate or any
other notice or action of any kind, all of which are hereby expressly waived by
each Obligor); (b) except for the Aggregate Commitments to make Loans pursuant
to Section 2.17(h), terminate the Aggregate Commitments (provided that, except
for the Aggregate
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Commitments to make Loans pursuant to Section 2.17(h), upon the occurrence of
an Event of Default under Section 7.6 or 7.7, the Aggregate Commitments shall
automatically terminate); (c) reduce any claim to judgment; (d) foreclose any
or all Liens or otherwise realize upon any and all Rights the Agent or the
Lenders may have in and to the Collateral, or any part thereof; and (e) to the
extent not prohibited by the Communications Act, exercise any and all other
legal or equitable Rights afforded by the Loan Documents, the Laws of the State
of New York or any other applicable jurisdiction, including, but not limited to
(i) the Right to bring suit or other proceedings before any Tribunal either for
specific performance of any covenant or condition contained in any of the Loan
Documents or in aid of the exercise of any Right granted to the Lenders or the
Agent in any of the Loan Documents and (ii) all of the Rights of a secured
party under the UCC. Notwithstanding the foregoing, whether or not the Agent
shall have been directed by the Required Lenders, to the fullest extent
permitted by any applicable Law, the Agent may (but shall not be obligated to)
take such action as it deems in its sole discretion necessary or appropriate to
preserve and protect the Collateral and the Rights of the Agent and the Lenders
therein.
Section 8.2 Obligor Liability Absolute. Each Obligor agrees that its
liability with respect to the Obligations or any part thereof shall not be
affected by any renewal or extension in the time of payment of the Obligations,
by any indulgence or by any release or change in any security for the payment
of the Obligations and hereby consents to any and all renewals, extensions,
indulgences, releases or changes, regardless of the number thereof.
Section 8.3 Performance by Lenders. If any covenant, duty or agreement
of any Obligor is not performed in accordance with the terms of any Loan
Document, after the occurrence and during the continuance of an Event of
Default, the Agent or any Lender may, as provided in the Loan Documents, to the
extent not prohibited by the Communications Act, at its option, perform or
attempt to perform, such covenant, duty or agreement on behalf of such Obligor.
In such event, any amount expended by the Agent or any Lender in such
performance or attempted performance shall be jointly and severally payable by
the Obligors to the Agent or such Lender on demand, shall become part of the
Obligations and shall bear interest at the Default Rate from the date of such
expenditure until paid. Notwithstanding the foregoing, it is expressly
understood that the Agent does not assume and shall never have any liability,
obligation or responsibility for the performance of any covenants, duty or
agreement of any Obligor.
Section 8.4 Delegation of Duties and Rights. The Agent may perform any
of its duties or exercise any of its Rights
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under the Loan Documents by or through its officers, directors, employees,
attorneys, agents or other representatives.
Section 8.5 Lenders Not in Control. None of the covenants or other
provisions contained in this Agreement shall, or shall be deemed to, give any
Lender or the Agent the Right to exercise control over the affairs or
management of any Obligor, the Rights of the Lenders and the Agent being
limited to the Right (subject to the Communications Act) to exercise the
remedies provided in this Article VIII and the other Loan Documents or
otherwise available at Law or in equity.
Section 8.6 Waivers by Lenders. The acceptance by any Lender at any
time and from time to time of partial payment on the Obligations shall not be
deemed to be a waiver of any Default or Event of Default then existing. No
course of dealing nor any failure or delay by the Agent or any Lender with
respect to exercise of any Right under any Loan Document shall impair such
Right or be construed as a waiver thereof nor shall any single or partial
exercise of any such Right preclude other or further exercise thereof or the
exercise of any other Right under the Loan Documents or otherwise.
Section 8.7 Cumulative Rights. All Rights available to the Lenders or
the Agent under the Loan Documents are cumulative of and in addition to all
other Rights granted to the Lenders or the Agent at Law or in equity, whether
or not the Obligations are due and payable and whether or not any Lender has
instituted any suit for collection, foreclosure or other action in connection
with the Loan Documents.
Section 8.8 Application of Proceeds. After the occurrence of an Event
of Default and during the continuance thereof, all payments in respect of the
Obligations and all proceeds of Collateral received by the Agent may, and shall
on the acceleration of the Obligations pursuant to Section 8.1, be applied by
the Agent to the Obligations, as follows: (a) first, to pay (i) interest on and
the principal of any portion of any Loan which the Agent has advanced on behalf
of any Lender for which the Agent has not then been reimbursed by any Obligor
or such Lender and (ii) any amount in respect of a drawing under a Letter of
Credit which the Agent has paid for which the Agent has not then been
reimbursed by any Obligor or any Lender, together with any accrued and unpaid
interest thereon; (b) second, to pay Obligations in respect of any fees,
expense reimbursements or indemnities then due to the Agent (in its capacity as
Agent); (c) third, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Lenders; (d) fourth, to pay
interest due in respect of the Loans; (e) fifth, to pay or prepay principal
outstanding on the Loans; (f) sixth, to pay all Obligations in respect of any
interest rate contracts or similar agreements or arrangements providing
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interest rate protection with any Lender; and (g) seventh, to pay all other
Obligations, or in such other order and manner as the Required Lenders shall
determine, and the Obligors shall remain jointly and severally liable to the
Agent and the Lenders for any deficiency. With respect to the foregoing, if
sufficient funds are not available to fund the payments to be made in respect
of the Obligations described in the foregoing clauses (a) through (g), the
available funds shall be applied to Obligations referred to in any one clause
to the ratable payment of such Obligations, based on the proportion of the
respective interests of the Lenders sharing in such payment in the aggregate
outstanding Obligations described in such clause.
Section 8.9 Diminution in Value of Collateral. The Lenders and the
Agent shall have no liability or responsibility whatsoever for any diminution
in or loss of value of any Collateral.
Section 8.10 Certain Proceedings. Each Obligor shall promptly execute
and deliver or cause the execution and delivery of, all applications,
certificates, instruments, registration statements and all other documents and
papers the Agent may reasonably request in connection with the obtaining of any
consent, approval, registration, qualification, permit, license or
authorization of any Tribunal or other Person necessary or appropriate for the
effective exercise of any Rights under the Loan Documents. Without limiting the
generality of the foregoing, each Obligor agrees that upon the occurrence and
continuation of a Default, each Obligor shall provide the Lenders with such
environmental audits as the Agent shall reasonably request at Borrower's
expense. Borrower shall execute and deliver all applications, certificates,
assignments and other documents the Agent may request and shall otherwise
promptly, fully and diligently cooperate with the Agent and any other necessary
Persons in making any application for the prior consent or approval of any
Tribunal or any other Person to the exercise by the Agent of any of such Rights
relating to all or any of the Collateral. Furthermore, because each Obligor
agrees that the Agent's remedies at Law for failure of any Obligor to comply
with the provisions of this Section 8.10 would be inadequate and that such
failure would not be adequately compensable in damages, each Obligor agrees
that the covenants of this Section 8.10 may be specifically enforced.
Section 8.11 Right of Set-off. Upon the occurrence and during the
continuance of any Default, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by Law, to set-off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of any Obligor against any and all of the
Obligations of any Obligor now or hereafter existing
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under this Agreement and the other Loan Documents, whether or not such Lender
shall have made any demand under this Agreement or the other Loan Documents and
even if such Obligations are unmatured. Each Lender shall promptly notify such
Obligor after any such set-off and application, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The Rights of each Lender under this Section 8.11 are in addition to other
Rights (including, without limitation, other rights of set-off) which each
Lender may have.
Section 8.12 Sharing of Payments. Any Lender obtaining a payment
(whether voluntary or involuntary, due to the exercise of any right of set-off
or otherwise) on account of any Loans in excess of its Specified Percentage
amount of such Loans shall purchase from each other Lender such participation
in such Loans made by such other Lenders as shall be necessary to cause such
purchasing Lender to share the excess payment pro rata according to Specified
Percentages with each other Lender; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such purchasing
Lender, the purchase shall be rescinded and the purchase price restored to the
extent of such recovery, but without interest. Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section
8.12, to the fullest extent permitted by Law, shall have and may exercise all
Rights with respect to such participation (including the Right of set-off) as
fully as if such Lender were the direct creditor of Borrower in the amount of
such participation.
ARTICLE IX
THE AGENT
Section 9.1 Appointment. Each Lender hereby irrevocably designates and
appoints The Bank of New York as the Agent of such Lender under the Loan
Documents and each such Lender hereby irrevocably authorizes The Bank of New
York, as the Agent for such Lender, to take such action on its behalf under the
provisions of the Loan Documents and to exercise such powers and to perform
such duties as are expressly delegated to the Agent by the terms of the Loan
Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary contained in any Loan
Document, except for those duties and responsibilities expressly set forth in
the Loan Documents, the Agent shall owe no other duties or responsibilities to
any Lender under any Loan Document, and no Loan Document shall be construed or
interpreted as creating for the benefit of any Lender any implied covenants or
other functions, responsibilities, duties, obligations or liabilities of the
Agent. By entering into this Agreement, each Lender expressly acknowledges and
agrees that
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no fiduciary relationship exists between such Lender and the Agent by virtue of
any provision of any Loan Document or otherwise.
Section 9.2 Delegation of Duties. The Agent may execute any of its
duties under the Loan Documents by or through agents or attorneys-in-fact and
shall be entitled to rely upon the advice of counsel concerning all matters
pertaining to such duties.
Section 9.3 Exculpatory Provisions. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall
be (a) liable for any action lawfully taken or omitted to be taken by it or
such Person under or in connection with the Loan Documents (except for its own
gross negligence or willful misconduct) or (b) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties made
by any Obligor or any officer or other representative thereof contained in the
Loan Documents or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agent under or in connection
with, the Loan Documents or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of any of the Loan Documents or the
Collateral or for any failure of any Obligor or any other Person to perform its
obligations thereunder. The Agent shall have no obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, the Loan Documents, or to inspect
the properties, books or records of any Obligor. The Agent shall have no
responsibility or any liability whatsoever, as Agent, to any Obligor or any
other Person as a consequence of any failure or delay in performance, or any
breach, by any Lender of any of its obligations under any of the Loan
Documents.
Section 9.4 Reliance by Agent. The Agent may rely, and shall be fully
protected in relying, on any writing, resolution, notice, consent, certificate,
affidavit, opinion, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to
be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and on the advice and statements of legal counsel (including,
without limitation, counsel to any Obligor), independent accountants and other
experts selected by the Agent. The Agent shall have no duty to examine or pass
upon the validity, effectiveness or genuineness of the Loan Documents or any
instrument, document or communication furnished pursuant thereto or in
connection therewith, and the Agent shall be entitled to assume that the same
are valid, effective and genuine, have been signed or sent by the proper Person
or Persons and are what they purport to be. The Agent shall be fully justified
in failing or refusing to take any action under the Loan Documents unless it
shall first receive such advice or concurrence of the Required Lenders as it
deems appropriate. The Agent shall under all circumstances be
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fully protected in acting, or in refraining from acting, under the Loan
Documents pursuant to a request or direction of the Required Lenders, and such
request or direction and the Agent's compliance therewith shall be binding on
all the Lenders and all future holders of the Notes.
Section 9.5 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default unless
the Agent has received written notice thereof from a Lender or an Obligor. In
the event that the Agent receives such a notice, the Agent shall promptly give
notice thereof to the Lenders. The Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the
Required Lenders; provided, however, that unless and until the Agent shall have
received such directions, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default
or Event of Default as it shall deem to be in the best interests of the Lenders
and shall be fully protected in so doing to the extent the Agent acts within
the authority vested in it pursuant to this Article IX and such action shall be
binding on all the Lenders and all future holders of the Notes.
Section 9.6 Non-Reliance on Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Agent nor any of its respective
officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the Agent
hereafter, including, without limitation, any review of the affairs of any
Obligor, shall be deemed to constitute any representation or warranty by the
Agent to any Lender. Each Lender hereby represents to the Agent that it has,
independently and without reliance upon the Agent or any other Lender, based on
such documents and information as it has deemed appropriate, made its own
evaluation of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Obligors and made its
own decision to enter into this Agreement and the other Loan Documents to which
it is a party. Each Lender also represents to the Agent that it will,
independently and without reliance upon the Agent or any other Lender, based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, evaluations and decisions to take or
not to take action under any Loan Document, and continue to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Obligors. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Agent pursuant to any Loan Document, the
Agent shall have no duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property,
financial and other condition or creditworthiness of the Obligors
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which may come into the possession of the Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
Section 9.7 Indemnification. Each Lender agrees to indemnify and
reimburse the Agent in its capacity as such (to the extent not promptly
reimbursed by Borrower and without limiting the obligation of any other Obligor
to do so), pro rata according to its Specified Percentage, from and against any
and all liabilities, obligations, claims, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever,
including, without limitation, any amounts paid to the Lenders (through the
Agent) by Borrower or any other Obligor pursuant to the terms of any Loan
Document, that are subsequently rescinded or avoided, or must otherwise be
restored or returned, which may at any time (including, without limitation, at
any time following the payment of the Obligations) be imposed on, incurred by
or asserted against the Agent in any way relating to or arising out of the Loan
Documents or any other documents contemplated by or referred to therein or the
transactions contemplated thereby or any action taken or omitted to be taken by
the Agent under or in connection with any of the foregoing; provided, however,
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements to the extent the same result solely
from the gross negligence or willful misconduct of the Agent. The obligations
of the Lenders under this Section 9.7 shall survive the termination of this
Agreement and the payment in full of the Obligations.
Section 9.8 Agent in Its Individual Capacity. The Bank of New York and
its respective Affiliates may make loans to, accept deposits from, issue
letters of credit for the account of any Obligor and generally engage in any
kind of business with any Obligor as though the Bank of New York were not the
Agent hereunder. With respect to The Bank of New York's Commitments and the
Notes issued to it, The Bank of New York shall have the same rights and powers
under the Loan Documents as any other Lender and may exercise the same as
though it were not the Agent, and the terms "Lender" and "Lenders" shall in
each case include The Bank of New York.
Section 9.9 Successor Agent. If at any time the Agent deems it
advisable, in its sole discretion, it may submit to each of the Lenders a
written notice of its resignation as Agent under this Agreement, such
resignation to be effective upon the earlier of (a) the written acceptance of
the duties of the Agent under the Loan Documents by a successor Agent and (b)
on the 30th day after the date of such notice. Upon any such resignation, the
Required Lenders shall have the right to appoint from among the Lenders a
successor Agent. If no successor Agent shall have been so
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appointed by the Required Lenders and accepted such appointment in writing
within 30 days after the retiring Agent's giving of notice of resignation, then
the retiring Agent may, on behalf of the Lenders, appoint a successor Agent,
which successor Agent shall be a commercial bank organized under the laws of
the United States of America or any State thereof, having a combined capital
and surplus of at least $100,000,000. Upon the acceptance of any appointment as
the Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent's rights, powers, privileges and
duties as the Agent under the Loan Documents shall be terminated. The Obligors
and the Lenders shall execute such documents as shall be necessary to effect
such appointment. After any retiring Agent's resignation or removal hereunder
as the Agent, the provisions of the Loan Documents shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was the Agent
under the Loan Documents. If at any time there shall not be a duly appointed
and acting Agent, during such time each Obligor agrees to make each payment due
under the Loan Documents directly to the Lenders entitled thereto.
Section 9.10 Benefits of Article. None of the provisions of this
Article IX shall inure to the benefit of any Person other than the Lenders;
consequently, no Person shall be entitled to rely upon, or to raise as a
defense, in any manner whatsoever, the failure of the Agent or the Lender to
comply with the provisions of this Article IX.
ARTICLE X
MISCELLANEOUS
Section 10.1 Changes in GAAP. All accounting and financial terms used
in any of the Loan Documents and the compliance with each covenant contained in
the Loan Documents that relates to financial matters shall be determined in
accordance with GAAP, except to the extent that a deviation therefrom is
expressly stated in such Loan Documents. Should a change in GAAP require a
change in any method of accounting or should any voluntary change in the
accounting methods be permitted hereunder, the Financial Statements required to
be delivered to the Lenders pursuant to the terms hereof shall be prepared in
compliance with such new method or methods of accounting (it being agreed that
the preparation of such Financial Statements in accordance with such new method
of accounting shall not constitute a Default or Event of Default), but shall be
accompanied by (a) adjusted Financial Statements prepared based on the methods
of accounting used by Borrower in the preparation of the Current Financials,
(b) the Compliance Certificate based on such adjusted Financial Statements and
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(c) such other information, in form and detail satisfactory to the Lenders,
that will allow the Lenders to readily determine the effect of such changes in
accounting methods. For the purpose of determining whether a Default or an
Event of Default has occurred, the Lenders shall look solely to such adjusted
Financial Statements.
Section 10.2 Expenses of Agent and Lenders. Whether or not the
transactions contemplated by this Agreement shall be consummated, Borrower
shall reimburse or pay (a) all reasonable and documented costs, fees and
expenses of or paid or incurred by the Agent or its legal counsel (including
FCC counsel) in connection with, or otherwise due under, this Agreement or any
of the other Loan Documents, including, without limitation, reasonable and
documented costs, fees and expenses relating to due diligence reviews,
syndication efforts, lien searches and filing or recording fees in connection
with the examination, negotiation, preparation, execution, interpretation,
administration or modification of this Agreement or any other Loan Document,
any agreement pertaining to a Permitted Acquisition, permitted asset sale or
permitted asset exchange or any amendment, agreement, document, assignment,
waiver or consent with respect to any of the foregoing, (b) all reasonable and
documented costs (including, without limitation, court costs), fees and
expenses of or paid or incurred by the Agent, any Lender or any counsel to the
Agent or any Lender (which may include allocated in-house legal expenses of any
Lender) in connection with the enforcement of the Obligations, any work-out or
restructuring of the Obligations or the exercise of any Rights under this or
any other Loan Document and (c) all reasonable and documented costs, fees and
expenses of or paid or incurred by the Agent in connection with appraisals,
audits, insurance, experts or consultants, all of which costs, fees and
expenses set forth in clauses (a), (b) and (c) above shall be part of the
Obligations and shall bear interest at the Default Rate from and after the date
such payment becomes overdue until paid in full. Borrower shall pay any and all
stamp and other Taxes which may be payable or determined to be payable in
connection with the execution and delivery of this Agreement, any Note or any
other Loan Document, and Borrower shall indemnify and save each holder of a
Note harmless from and against any and all liabilities with respect to or
resulting from any delay or omission to pay any such Taxes. The obligations of
Borrower under this Section 10.2 shall survive the termination of this
Agreement and the payment in full of the Obligations. Borrower shall make the
reimbursements and payments required by this Section 10.2 within 10 days after
the Agent's demand therefor, except that any costs, fees and expenses of the
nature described in clauses (a), (b) and (c) of this Section 10.2 which are
reimbursable or payable by Borrower as of the date hereof shall be so
reimbursed or paid simultaneously with the execution and delivery hereof.
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Section 10.3 Communications. Unless specifically otherwise provided,
whenever any Loan Document requires or permits any consent, acceptance,
permission, approval, notice, request or demand from one party to another, such
communication must be in writing, must be personally served, telecopied or sent
by courier service and shall be deemed to have been given when delivered in
person or by courier service or upon receipt of a telecopy. Until changed by
notice pursuant hereto, the address and telecopy number for each party for
purposes hereof is as follows:
Any Obligor: SFX Broadcasting, Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx F.X. Sillerman
The Agent: The Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000/8593
Attention: Xxxxxx X. Xxxxxx
Vice President
Article II
notices, with
a copy to: The Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Agency Function Administration
Except for
Article II
notices, with
a copy to: Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx
Until changed by notice to Borrower pursuant hereto, all items to be delivered
to any Lender shall be sent to such Lender (other than The Bank of New York
which shall be sent as aforesaid) to the address of such Lender set forth in
Schedule 1.1(A).
Section 10.4 Form and Number of Documents. Each agreement, document,
instrument or other writing to be furnished to the Lenders under any provision
of this Agreement or any other Loan Document must be in form and substance and
in such number of counterparts satisfactory to the Agent.
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Section 10.5 Survival. All covenants, agreements, undertakings,
representations and warranties made in any of the Loan Documents shall survive
all closings under the Loan Documents and shall not be affected by any
investigation made by any Person.
Section 10.6 Confidentiality. The Agent and each Lender shall hold all
nonpublic information obtained pursuant to the requirements of this Agreement
in accordance with such Person's customary procedures for handling confidential
information of such nature and in accordance with safe and sound lending
practices; provided, however, the Agent and each Lender may in any event make
disclosure of such nonpublic information (a) to any participants in the Loans
of any Lender, to any bona fide offerees or assignees in connection with a
contemplated transfer or participation, or to its accountants, lawyers and
other advisers, provided that such participants, offerees, assignees,
accountants, lawyers and advisers also agree to maintain the confidentiality of
such information in accordance herewith, (b) as required by any Tribunal or (c)
pursuant to legal process.
Section 10.7 VENUE; SERVICE OF PROCESS. EACH OBLIGOR, FOR ITSELF, ITS
SUCCESSORS AND ASSIGNS, HEREBY KNOWINGLY AND INTENTIONALLY AND IRREVOCABLY AND
UNCONDITIONALLY (A) SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE STATE COURTS OF THE STATE OF NEW YORK AND THE FEDERAL
COURTS SITTING IN THE STATE OF NEW YORK AND AGREES AND CONSENTS THAT SERVICE OF
PROCESS MAY BE MADE UPON IT IN ANY LEGAL PROCEEDING ARISING OUT OF OR IN
CONNECTION WITH THE LOAN DOCUMENTS, OR THE OBLIGATIONS BY SERVICE OF PROCESS AS
PROVIDED BY NEW YORK LAW, (B) WAIVES TO THE EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
LITIGATION ARISING OUT OF OR IN CONNECTION WITH THE LOAN DOCUMENTS, OR THE
OBLIGATIONS BROUGHT IN ANY NEW YORK STATE COURT OR FEDERAL COURT SITTING IN THE
CITY OF NEW YORK, STATE OF NEW YORK, (C) WAIVES ANY CLAIMS THAT ANY LITIGATION
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, (D)
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH LITIGATION BY THE MAILING OF COPIES THEREOF BY CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, POSTAGE PREPAID, TO BORROWER AT THE ADDRESS SET FORTH HEREIN
AND (E) AGREES THAT ANY LEGAL PROCEEDING AGAINST SUCH OBLIGOR ARISING OUT OF,
RELATED TO OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE OBLIGATIONS MAY BE
BROUGHT IN ANY COURT OF COMPETENT JURISDICTION IN XXX XXXX XX XXX XXXX, XXXXXX
XX XXX XXXX. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE LENDERS TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY OBLIGOR IN ANY OTHER
JURISDICTION OR TO SERVE PROCESS IN ANY MANNER PERMITTED BY APPLICABLE LAW.
Section 10.8 WAIVER OF JURY TRIAL. EACH OBLIGOR, THE AGENT AND EACH
LENDER, FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS, HEREBY KNOWINGLY AND
INTENTIONALLY AND IRREVOCABLY AND
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UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ITS RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS WITH THE LENDERS
RELATING TO THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED HEREBY AND
THEREBY AND THE RELATIONSHIP THAT IS BEING ESTABLISHED. THE FOREGOING WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, MODIFICATIONS, RENEWALS, EXTENSIONS,
RESTATEMENTS, REARRANGEMENTS, SUPPLEMENTS OR SUBSTITUTIONS TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENTS WHETHER OR NOT EXPRESSLY SET FORTH THEREIN.
Section 10.9 Severability. Whenever possible, each provision of each
Loan Document shall be interpreted in such manner as to be effective and valid
under applicable Law. If, however, any provision in any Loan Document should be
held to be illegal, invalid or unenforceable, such provision shall be fully
severable; the appropriate Loan Document shall be construed and enforced as if
such provision had never comprised a part thereof; and the remaining provisions
thereof shall remain in full force and effect and shall not be affected by such
provision or by its severance therefrom.
Section 10.10 Conditions to Effectiveness; Assignment; and Waiver of
Rights.
(a) This Agreement shall become effective as of the date hereof, at
which time the 1995 Agreement shall be deemed amended and restated in its
entirety by this Agreement. Prior to the effectiveness of this Agreement, the
1995 Agreement shall remain in full force and effect.
(b) Upon the effectiveness of this Agreement, The Bank of New York
shall be deemed to have assigned, without representation or warranty, all of
its rights under the 1995 Agreement to the Lenders pro rata in accordance with
their respective Specified Percentages with respect to the Loans, the Aggregate
Commitment and the Letters of Credit.
(c) No amendment or waiver of any provision of this Agreement or any
other Loan Document nor consent to any departure by any Obligor therefrom,
shall be effective unless the same shall be in writing and signed by the
Obligors and the Required Lenders and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by each of the Lenders (i) change the Commitment of any
Lender (except to the extent otherwise contemplated by Section 2.5 or Section
10.14(c)), (ii) reduce the amount of any principal, interest or fees or other
amounts payable to the Lenders hereunder, reduce the interest rate applicable
to any Loan or the rate at which the Commitment Fee accrues or waive
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any Default under Section 7.1, (iii) postpone any date fixed for any payment of
principal, interest, fees or other amounts payable to the Lenders hereunder
(including without limitation, the dates when mandatory prepayments become due
under Section 2.5), (iv) release any collateral or guaranties securing any
Obligor's obligations hereunder except as specifically provided for in the Loan
Documents, (v) change the definition of the Required Lenders, the meaning of
Specified Percentage, the number of the Lenders required to take any action
hereunder or the conditions precedent to each Lender's obligation to make Loans
as set forth in Article III or (vi) amend Section 2.9(b) or this Section 10.10.
No amendment, waiver or consent shall affect the Rights or duties of the Agent
under any Loan Documents unless it is in writing and signed by the Agent in
addition to the requisite number of the Lenders.
Section 10.11 General Indemnification of Lenders. Each Obligor shall,
jointly and severally (a) indemnify and hold harmless the Agent, each Lender,
the respective Affiliates of the Agent and each Lender, and the respective
officers, directors, employees, agents, attorneys, consultants and advisors of
the Agent, each Lender and each such Affiliate (each, an "Indemnified Party")
from and against any and all losses, claims, damages, liabilities, obligations,
penalties, actions, judgments, suits, disbursements, costs and expenses of any
kind or nature (including, without limitation, the reasonable fees and
disbursements of counsel) which may be incurred by or awarded against such
Indemnified Party or to which such Indemnified Party may become subject arising
out of or in connection with or in any way relating to or resulting from any
actual or threatened claim, litigation, investigation or proceeding relating to
this Agreement (including the use of the proceeds thereof), the other Loan
Documents or any transaction contemplated by any of the foregoing, whether or
not such Indemnified Party is a party thereto, whether direct or indirect,
whether based on any federal, state or local law or other statutory regulation,
securities or commercial law or regulation or under common law or in equity, or
on contract, tort or otherwise, and whether or not the transactions
contemplated hereby are ever consummated, and (b) reimburse each Indemnified
Party, on demand, for all out-of-pocket costs and expenses (including, without
limitation, the reasonable fees and disbursements of counsel) incurred in
connection with any of the foregoing, including, without limitation, costs and
expenses incurred in connection with investigating, defending or participating
in any legal proceeding relating to any of the foregoing, provided, however,
that no Obligor shall have any obligation to indemnify any Person against such
Person's gross negligence or willful misconduct. No Obligor shall make any
claim against any Indemnified Party for any special, indirect or consequential
damages in respect of any breach or wrongful conduct (whether the claim
therefor is based in contract, tort or duty imposed by law) in connection with,
arising out of or
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in any way related to the transactions contemplated by, and the relationship
established by, the Loan Documents, or any act, omission or event occurring in
connection therewith, and each Obligor hereby waives, releases and agrees not
to xxx upon any such claim for any such damages, whether or not accrued and
whether or not known or suspected to exist in its favor. The obligation of each
Obligor under this Section 10.11 shall survive the termination of this
Agreement and the payment in full of the Obligations.
Section 10.12 Environmental Indemnification of Lenders. Each Obligor
shall jointly and severally, indemnify, protect and hold each Indemnified Party
harmless from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, claims, proceedings, costs,
expenses (including, without limitation, reasonable attorneys' fees and legal
expenses whether or not suit is brought) and disbursements of any kind or
nature whatsoever which may at any time be imposed on, incurred by or asserted
against such Indemnified Party, with respect to or as a direct or indirect
result of the violation by any Obligor of any Environmental Law or with respect
to or as a direct or indirect result of the use, generation, manufacture,
production, storage, release, threatened release, discharge, disposal of a
Hazardous Substance, or presence of a Hazardous Substance, on, under, from or
about its real property. The obligation of each Obligor under this Section
10.12 shall survive the termination of this Agreement and the payment in full
of the Obligations.
Section 10.13 Multiple Counterparts. This Agreement has been executed
in a number of identical counterparts, each of which shall be deemed an
original for all purposes and all of which constitute, collectively, one
Agreement; but, in making proof of this Agreement, it shall not be necessary to
produce or account for more than one such counterpart.
Section 10.14 Parties Bound; Participations; Assignments.
(a) This Agreement is binding upon, and inures to the benefit of, the
Agent, the Lenders, the Obligors and permitted assigns; provided that, no
Obligor may, without prior consent of all the Lenders, assign any Rights,
duties or obligations hereunder and any purported assignments in violation of
the foregoing shall be void.
(b) Subject to compliance with all applicable Law, each Lender may (i)
sell participations in all or a portion of its interest in Loans and
Commitments under this Agreement or (ii) assign all or a portion of its Loans
and Commitments under this Agreement to a Federal Reserve Bank without the
consent of the Agent. Each Obligor agrees that each participant shall be
entitled to the benefits of Sections 2.8, 2.11, 2.13, 2.14, and 2.16. Any
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Lender may in connection with a participation or proposed participation
disclose to the participant or proposed participant any information relating to
any Obligor furnished to such Lender by or on behalf of any Obligor.
(c) Subject to compliance with all applicable Law and compliance with
the terms of this subsection (c) and each Eligible Assignee's compliance with
Section 2.11(e)(i), each Lender may assign all or a portion of its Rights and
obligations as a Lender under the Loan Documents to one or more Eligible
Assignees provided, however, that (i) in the case of a partial assignment, each
such assignment shall be in a minimum amount equal to $5,000,000 and (ii) any
assignment shall require the written consent of the Agent (which will not be
unreasonably withheld). On or prior to the effective date of such assignment,
the assigning Lender (the "Assignor") and such Eligible Assignee shall execute
and deliver to the Agent an Assignment and Acceptance Agreement (an "Assignment
Agreement") in the form of Exhibit R, together with the Notes subject to such
Assignment Agreement and a processing fee in the amount of $3,000 payable by
the Assignor. Provided such assignment has been consented to as required
hereinabove, Borrower shall execute and deliver to the Assignor, in exchange
for the Notes issued to the Assignor, new Notes payable to the order of the
Assignor, if applicable, and such Assignee in the principal face amounts equal
to their respective Specified Percentages of the Aggregate Commitments, dated
as of the effective date of the Assignment Agreement, within five Business Days
after the effective date of the Assignment Agreement. On and after the
effective date of each Assignment Agreement, the Assignee shall be a party
hereto, included in the definition of "Lender" and shall have the Rights and
obligations of a Lender under the Loan Documents. In the event any Lender
assigns all of its rights and obligations as a Lender under the Loan Documents
to one or more Assignees, on and after the effective date of such assignment,
the Rights and obligations of the Assignor under the Loan Documents shall
terminate except for those provisions that specifically recite that they
survive the termination of this Agreement and the other Loan Documents.
(d) The Agent shall maintain at its address set forth herein a copy of
each Assignment Agreement received by it from each Assignor and a register (the
"Register") for the recordation of the names and addresses of the Lenders and
the Commitments of, and principal amount of Loans owing to, each Lender from
time to time. The entries in the Register shall be binding and conclusive
absent manifest error, and Borrower, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as the owner of the Loans
recorded therein for all purposes of this Agreement and the other Loan
Documents.
(e) Any Lender may in connection with any proposed assignment disclose
to the proposed Assignee any information
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relating to any Obligor furnished to such Lender by or on behalf of any
Obligor.
(f) Nothing in this Section 10.14 shall prohibit or prevent any Lender
from creating at any time a security interest in all or any portion of its
Rights under this Agreement (including, without limitation, the Loans owing to
it and the Notes held by it) in favor of any Federal Reserve Bank in accordance
with Regulation A of the Federal Reserve Board.
Section 10.15 Entire Agreement. This Agreement, taken together with
all of the other Loan Documents heretofore, now or hereafter executed, embodies
the entire agreement and understanding among the parties hereto and supersedes
the commitment letter dated May 16, 1996, as amended, between The Bank of New
York and Borrower and any and all prior agreements and understandings between
any Obligor and the Agent or any Lender, written or oral, relating to the
subject matter hereof.
Section 10.16 Governing Law. The Loan Documents shall be governed by
and construed in accordance with the laws of the State of New York, except to
the extent otherwise specified in any Loan Document.
Section 10.17 Subordination of Intercompany Obligations. Each Obligor
hereby acknowledges that (i) the principal amount of any Debt now or hereafter
due from Borrower to any other Obligor (including, without limitation, the Debt
shown on Schedule 4.30 as Debt owed by Borrower to a Subsidiary of Borrower)
shall not be required to be paid (whether by way of mandatory sinking fund,
mandatory redemption, mandatory prepayment or otherwise) prior to the Maturity
Date, and (ii) the payment of principal of or any interest on any such Debt,
and any other obligations of Borrower relating thereto, are hereby subordinated
to the prior payment in full of the principal of and interest (including,
without limitation, post-petition interest, whether or not any such
post-petition interest is an allowable claim in any bankruptcy proceeding) on
the Loans and all other Obligations of the Obligors to the Lenders under the
Loan Documents.
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EXECUTED as of the day and year first mentioned.
SFX BROADCASTING, INC., Borrower
By: \s\ XXXXXX F.X. SILLERMAN
--------------------------------
Name: Xxxxxx F.X. Sillerman
Title: Executive Chairman
SFX BROADCASTING OF THE SOUTHWEST, INC.
SFX BROADCASTING OF TEXAS, INC.
SFX BROADCASTING OF TEXAS (KRLD), INC.
SFX BROADCASTING OF TEXAS (KRLD) LICENSEE,
INC.
SFX BROADCASTING OF TEXAS (TSN), INC.
SFX BROADCASTING OF TEXAS (TSN) LICENSEE, INC.
KODA-FM LICENSEE, INC.
KJQY-FM LICENSEE, INC.
SFX BROADCASTING OF TEXAS (KTCK), INC.
SFX BROADCASTING OF TEXAS (KTCK) LICENSEE,
INC.
SFX BROADCASTING OF THE SOUTHEAST, INC.
SFX BROADCASTING OF CENTRAL NORTH CAROLINA,
INC.
SFX BROADCASTING OF SOUTH CAROLINA (WMYI),
INC.
SFX BROADCASTING OF SOUTH CAROLINA (WMYI)
LICENSEE, INC.
SFX BROADCASTING OF MISSISSIPPI, INC.
SFX BROADCASTING OF MISSISSIPPI LICENSEE, INC.
SFX BROADCASTING OF SOUTH CAROLINA (WSSL),
INC.
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SFX BROADCASTING OF SOUTH CAROLINA (WSSL)
LICENSEE, INC.
SFX BROADCASTING OF TENNESSEE, INC.
SFX BROADCASTING OF TENNESSEE LICENSEE, INC.
SFX BROADCASTING OF XXXXXXX, INC.
SFX BROADCASTING OF XXXXXXX LICENSEE, INC.
SFX BROADCASTING OF NORTH CAROLINA, INC.
SFX BROADCASTING OF NORTH CAROLINA LICENSEE,
INC.
SFX BROADCASTING OF SAN DIEGO, INC.
XXXXXX BROADCASTING COMPANY
SFX BROADCASTING OF SAN DIEGO LICENSEE, INC.
SFX ACQUISITION CORPORATION.
LIBERTY ACQUISITION SUBSIDIARY CORPORATION
LIBERTY BROADCASTING, INC.
LIBERTY BROADCASTING GROUP INCORPORATED
XXXX-XXXX COMMUNICATIONS, INC.
W.B.L.I., INC.
WBLI-FM, INC.
WHCN, INC.
WHCN-FM, INC.
WSNE, INC.
WSNE-FM, INC.
WPYX, INC.
WTRY, INC.
WYSR, INC.
WPOP, INC.
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WHJY, INC.
WHJJ, INC.
LIBERTY BROADCASTING OF NEW YORK INCORPORATED
WHFM, INC.
WBAB, INC.
WGBB, INC.
LIBERTY BROADCASTING OF ALBANY INCORPORATED
WGNA, INC.
WGNA-FM, INC.
LIBERTY BROADCASTING OF MARYLAND INCORPORATED
WHFS, INC.
LIBERTY BROADCASTING OF MARYLAND II
INCORPORATED
WMXB, INC.
WXTR, INC.
MUSICAL HEIGHTS, INC.
SFX BROADCASTING OF HARTFORD, INC.
WQSI, INC.
WZYQ, INC.
SFX MERGER COMPANY
By: \s\ XXXXXX F.X. SILLERMAN
-----------------------------------------
Name: Xxxxxx F.X. Sillerman
Title: Executive Chairman of Borrower
and Chief Executive Officer of
each of the Subsidiaries of
Borrower
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Specified Percentage: 11.00000000% THE BANK OF NEW YORK,
as the Agent, the Letter of Credit
Issuing Bank and as a Lender
By: \s\ XXXXXX XXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Specified Percentage: 8.00000000% BANK OF TOKYO - MITSUBISHI TRUST
COMPANY
By: \s\ XXXXXXXXX XXXX XX.
-----------------------------------
Name: Xxxxxxxxx Xxxx Xx.
Title: Vice President
Specified Percentage: 6.00000000% BANKERS TRUST COMPANY
By: \s\ XXXX X. XXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
Specified Percentage: 6.00000000% BANK OF MONTREAL
By: \s\ XXXX XXXXXXXXXXX
-----------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Director
Specified Percentage: 6.66666667% BANQUE NATIONALE DE PARIS
By: \s\ XXXX XXXXXXX
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
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Specified Percentage: 6.66666667% CIBC, INC.
By: \s\ XXXX X. XXXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Director
Specified Percentage: 6.66666667% CORESTATES BANK N.A.
By: \s\ XXXXX XXXXXXXX
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
Specified Percentage: 6.00000000% THE FUJI BANK, LIMITED, NEW YORK
BRANCH
By: \s\ XXXXX XXXXXXXX
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President & Manager
Specified Percentage: 6.66666667% XXXXXXX SACHS CREDIT PARTNERS L.P.
By: \s\ XXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
Specified Percentage: 6.66666667% XXXXXX COMMERCIAL PAPER INC.
By: \s\ XXXXXX X. XXX
-----------------------------------
Name: Xxxxxx X. Xxx
Title: Authorized Signatory
-109-
Specified Percentage: 6.00000000% NATIONAL BANK OF CANADA
By: \s\ XXXXXXX XXXXX
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: Assistant Vice President
Specified Percentage: 6.66666667% NATIONAL CITY BANK
By: \s\ XXXXXX X. XXXXXXXX, XX.
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Senior Vice President
Specified Percentage: 6.66666667% SOCIETE GENERALE
By: \s\ XXXX XXXXX
-----------------------------------
Name: Xxxx Xxxxx
Title: Vice President
Specified Percentage: 6.66666667% THE SUMITOMO BANK, LIMITED
By: \s\ X. X. XXXXXXXX
-----------------------------------
Name: X. X. Xxxxxxxx
Title: Vice President - N.Y. Office
-110-
