EXHIBIT 10.11
LOAN AGREEMENT
BY AND BETWEEN
CHILDREN'S BROADCASTING CORPORATION,
AS LENDER
AND
CRN BROADCASTING, LLC,
AS BORROWER
DATED AS OF OCTOBER 30, 1998
TABLE OF CONTENTS
Page(s)
1. DEFINITIONS AND CONSTRUCTION..........................................1
1.1 Definitions..................................................1
1.2 Accounting Terms............................................11
1.3 Construction................................................11
1.4 Schedules and Exhibits......................................11
2. TERM LOAN AND TERMS OF PAYMENT.......................................11
2.1 Term Loan...................................................11
2.2 Interest: Rates, Payments, and Calculations................12
3. CONDITIONS; TERM OF AGREEMENT........................................13
3.1 Conditions Precedent to the Term Loan.......................13
3.2 Additional Conditions Precedent to the Term Loan............16
3.3 Condition Subsequent........................................16
3.4 Term........................................................17
4. REPRESENTATIONS AND WARRANTIES.......................................17
4.1 Corporate Existence.........................................17
4.2 Subsidiaries................................................17
4.3 Corporate Power and Authority...............................17
4.4 Ownership...................................................18
4.5 Validity of Obligations.....................................18
4.6 Financial Statements........................................18
4.7 Liens.......................................................18
4.8 Litigation..................................................19
4.9 Accuracy of Information.....................................19
4.10 Tax Returns; Audits.........................................19
4.11 Corporate Takeovers.........................................19
4.12 Investment Company Act......................................19
4.13 Consents, etc...............................................19
4.14 ERISA.......................................................19
4.15 No Events of Default........................................20
4.16 Solvency....................................................20
4.17. Licenses and Permits........................................20
5. REPRESENTATIONS AND WARRANTIES OF LENDER.............................20
5.1 Corporate Existence.........................................21
5.2 Corporate Power and Authority...............................21
5.3 Validity of Obligations.....................................21
6. AFFIRMATIVE COVENANTS................................................21
6.1 Maintain Assets.............................................22
6.2. Accounting System...........................................22
6.3. Insurance...................................................22
6.4. Financial Statements........................................22
6.5. Access to Records...........................................23
6.6. Taxes, Assessments and Charges..............................23
6.8. Notification of Changes.....................................24
6.9. Existence...................................................24
6.10. Conduct of Business.........................................24
6.11. Books and Records...........................................24
6.12 Vander Eyk Agreement........................................24
6.13. Survival of Representations, Etc............................25
6.14. Costs and Expenses..........................................25
7. NEGATIVE COVENANTS...................................................25
7.1. Liens and Encumbrances......................................25
7.2. Indebtedness................................................26
7.3. Default on Other Obligations................................27
7.4. Change in Control, Merge, Consolidate or Sell...............27
7.6. Sale and Leaseback..........................................27
7.7. Loans.......................................................27
7.8. Guaranties, Etc.............................................27
7.9. Dividends...................................................28
7.10. Capital Expenditures........................................28
7.11. Investments.................................................28
7.12. Payment on Subordinated Indebtedness........................29
7.13. Transactions with Affiliates................................29
7.14. Financial Covenants.........................................29
8. EVENTS OF DEFAULT....................................................30
9. LENDER'S RIGHTS AND REMEDIES.........................................31
9.1 Rights and Remedies.........................................31
9.2 Remedies Cumulative.........................................31
10. WAIVERS; INDEMNIFICATION.............................................32
10.1 Demand; Protest; etc........................................32
10.2 Indemnification.............................................32
11. NOTICES..............................................................32
12. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER...........................33
13. GENERAL PROVISIONS...................................................34
13.1 Effectiveness...............................................34
13.2 Successors and Assigns......................................34
13.3 Section Headings............................................34
13.4 Interpretation..............................................34
13.5 Severability of Provisions..................................35
13.6 Amendments in Writing.......................................35
13.7 Counterparts; Telefacsimile Execution.......................35
13.8 Revival and Reinstatement of Obligations....................35
13.9 Integration.................................................35
13.10 Purchase Agreement..........................................35
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement"), is entered into and shall be
effective as of October 30, 1998, between CRN BROADCASTING, LLC, a Delaware
limited liability company ("Borrower"), with its chief executive office located
at 0000 Xxxxxxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000 and CHILDREN'S
BROADCASTING CORPORATION, a Minnesota corporation ("Lender"), with its chief
executive office located at 000 Xxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000.
RECITALS:
FIRST: Catholic Radio Network, LLC, Lender and certain wholly-owned
subsidiaries of the Lender are parties to that certain Purchase Agreement, dated
April 17, 1998, as amended by that certain First Amendment to Purchase
Agreement, dated September 29, 1998, and by that certain Second Amendment to
Purchase Agreement, dated October 30, 1998 (collectively, the "Purchase
Agreement"), pursuant to which Catholic Radio Network, LLC agreed to purchase
substantially all of the assets of seven (7) radio stations currently owned by
the Lender or by certain wholly-owned subsidiaries of the Lender;
SECOND: Pursuant to the Purchase Agreement, Catholic Radio Network, LLC
has requested the Lender to make an eighteen month term loan to the Borrower in
the original principal amount of $15,000,000 ("Term Loan"), the proceeds of
which will be used to finance, in part, the purchase of such radio stations;
THIRD: Lender has agreed to such request, in accordance with and
subject to the terms contained herein.
AGREEMENT
NOW THEREFORE, in consideration of the premises and the terms and
conditions contained herein, and to induce the Lender to make the Term Loan to
the Borrower, the parties hereto agree as follows:
1. DEFINITIONS AND CONSTRUCTION.
1.1 DEFINITIONS. As used in this Agreement, the following
terms shall have the following definitions:
"Accounts" means all currently existing and hereafter arising accounts,
contract rights, and all other forms of obligations owing to an Obligor arising
out of the sale or lease of goods or the
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rendition of services by an Obligor, irrespective of whether earned by
performance, and any and all credit insurance, guaranties, or security therefor.
"Acquisition" means any purchase or other acquisition by the Borrower
of the assets or stock of any other Person, other than the purchase of inventory
or equipment in the ordinary course of business.
"Additional Subordinated Indebtedness" means any Indebtedness of
Borrower (other than Initial Subordinated Indebtedness) which is subordinated to
the Note, in a manner and to an extent which the Lender has determined to be
satisfactory, as evidenced either (a) by a writing sent to the Borrower prior to
the creation of such Indebtedness, which consent will not be unreasonably denied
or delayed or (b) by the lapse of ten (10) Business Days without objection of
the Lender following the delivery to the Lender in writing of a request for such
consent together with the form of agreement setting forth the manner and extent
of the proposed subordination.
"Affiliate" means, as applied to any Person, any other Person who
directly or indirectly controls, is controlled by, is under common control with
or is a director or governor or an officer or manager of such Person. For
purposes of this definition, "control" means the possession, directly or
indirectly, of the power to vote 5% or more of the securities having ordinary
voting power for the election of directors or governors or the direct or
indirect power to direct the management and policies of a Person, whether
through ownership of securities, membership interests, by contract or otherwise.
"Agreement" means this Loan Agreement, as the same may be amended,
modified, supplemented or restated from time to time.
"Asset Disposition" means the disposition of the following, whether by
sale, lease, transfer, loss, damage, destruction, condemnation or otherwise: any
or all of the assets of the Borrower provided that "Asset Disposition" shall not
include (a) the sale of inventory in the ordinary course of business, (b) the
disposition of obsolete equipment sold or disposed of in the ordinary course of
business, (c) disposition of instruments and other rights to the payment of
money in the ordinary course of business in the course of collection or deposit
thereof, or (d) the transfer of casualty property to an insurance company upon
prepayment of policy proceeds with respect to such property.
"Assets" shall have the meaning usually given that term in accordance
with GAAP, except that investments in or monies due from any Affiliate shall be
excluded therefrom.
"Bankruptcy Code" means the United States Bankruptcy Code (11 U.S.C.
ss. 101 et seq.), as amended, and any successor statute.
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"Benefit Plan" means a "defined benefit plan" (as defined in Section
3(35) of ERISA) for which Borrower, any Subsidiary of Borrower, or any ERISA
Affiliate has been an "employer" (as defined in Section 3(5) of ERISA) within
the past six years.
"Borrower" has the meaning set forth in the preamble to this Agreement.
"Borrower Pledge Agreements" has the meaning assigned to it in
Section 3.1(b)(4).
"Borrower Security Agreement" has the meaning assigned to it in
Section 3.1(b)(2).
"Broadcast System" means all of the properties and operating rights
constituting a complete, fully integrated system for transmitting radio signals
from a transmitter licensed by the FCC, together with any sub-system which is
ancillary to any system referred to above.
"Business Day" means any day that is not a Saturday, Sunday, or other
day on which national banks are authorized or required to close in Minneapolis,
Minnesota.
"Capital Expenditures" shall mean all expenditures for any fixed assets
or improvements, or for replacements, substitutions or additions thereto, which
have a useful life of more than one year, including, but not limited to, the
direct or indirect acquisition of such assets by way of increased product or
service charges, offset items or otherwise, and shall include capitalized lease
payments.
"Capitalized Lease" means, at the time any determination thereof is to
be made, any lease of property, real or personal, in respect of which the
present value of the minimum rental commitment is capitalized on the balance
sheet of the lessee in accordance with GAAP.
"Capitalized Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a Capitalized
Lease which would at such time be required to be capitalized on the balance
sheet of the lessee in accordance with GAAP.
"Change of Control" shall be deemed to have occurred at such time as
(a) Borrower shall cease to own and control, beneficially, directly, and of
record, all of the issued and outstanding capital stock of CRNO or CRNL, or (b)
a "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934) other than CRNH becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934), directly
or indirectly, of more than 10% of the membership interest of the Borrower.
"Closing Date" means October 30, 1998.
"Code" means the Minnesota Uniform Commercial Code.
3
"Collateral" shall mean all real and personal property and all
interests in real and personal property now owned or hereafter acquired by any
of the Obligors in or upon which a security interest, Lien or Mortgage is
granted to the Lender, whether under this Agreement or the other Loan Documents
or under any other documents, instruments or writings executed by any of the
Obligors and delivered to the Lender, including, without limitation, Accounts,
General Intangibles, Inventory, Intellectual Property, Fixtures, Equipment and
Real Property (each as defined herein).
"Collateral Access Agreement" means a landlord waiver, mortgagee
waiver, bailee letter, or acknowledgement agreement of any warehouseman,
processor, lessor, consignee, or other Person in possession of, having a Lien
upon, or having rights or interests in equipment or inventory, in each case, in
form and substance reasonably satisfactory to Lender.
"Collateral Assignments of Key Leases" means one or more collateral
assignments, mortgages, or deeds of trust, in form and substance reasonably
satisfactory to Lender, between one or more of the Obligors (including Borrower)
and Lender respecting the hypothecation of such Obligor's rights under the Key
Leases.
"Collateral Assignments of Tower Leases" means one or more collateral
assignments, mortgages, or deeds of trust, in form and substance reasonably
satisfactory to Lender, between one of the Obligors and Lender respecting the
hypothecation of such Obligor's rights under the Tower Leases.
"Collections" means all cash, checks, notes, instruments, and other
items of payment (including, insurance proceeds, proceeds of cash sales, rental
proceeds, and tax refunds).
"CRN" means Catholic Radio Network, LLC, a California limited liability
company.
"CRN Guaranty" has the meaning assigned to it in Section 3.1(b)(7).
"CRNH" means Catholic Radio Network Holdings, a Delaware limited
liability company.
"CRNH Guaranty" has the meaning assigned to it in Section 3.1(b)(8).
"CRNL" means CRN Licenses, LLC, a Delaware limited liability company.
"CRNL Security Agreement" has the meaning assigned to it in
Section 3.1(b)(15).
"CRNO" means CRN Operations, LLC, a Delaware limited liability company.
"CRNO Guaranty" has the meaning assigned to it in Section 3.1(b)(9).
"CRNO Security Agreement" has the meaning assigned to it in
Section 3.1(b)(13).
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"Cumulative Operating Income" has the meaning assigned to such term
on Schedule D-1.
"Default" means an event, condition, or default that, with the giving
of notice, the passage of time, or both, would be an Event of Default.
"Dollars or $" means United States dollars.
"Equipment" means all of the Obligors' present and hereafter acquired
machinery, machine tools, motors, equipment, furniture, furnishings, fixtures,
vehicles (including motor vehicles and trailers), tools, parts, goods (other
than consumer goods, farm products, or Inventory), wherever located, including,
(a) any assets acquired by the Borrower pursuant to the Purchase Agreement, and
(b) all attachments, accessories, accessions, replacements, substitutions,
additions, and improvements to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, 29
U.S.C. xx.xx. 1000 et seq., amendments thereto, successor statutes, and
regulations or guidance promulgated thereunder.
"ERISA Affiliate" means (a) any corporation subject to ERISA whose
employees are treated as employed by the same employer as the employees of
Borrower under IRC Section 414(b), (b) any trade or business subject to ERISA
whose employees are treated as employed by the same employer as the employees of
Borrower under IRC Section 414(c), (c) solely for purposes of Section 302 of
ERISA and Section 412 of the IRC, any organization subject to ERISA that is a
member of an affiliated service group of which Borrower is a member under IRC
Section 414(m), or (d) solely for purposes of Section 302 of ERISA and Section
412 of the IRC, any party subject to ERISA that is a party to an arrangement
with Borrower and whose employees are aggregated with the employees of Borrower
under IRC Section 414(o).
"ERISA Event" means (a) a Reportable Event with respect to any Benefit
Plan or Multiemployer Plan, (b) the withdrawal of Borrower, any of its
Subsidiaries or ERISA Affiliates from a Benefit Plan during a plan year in which
it was a "substantial employer" (as defined in Section 4001(a)(2) of ERISA), (c)
the providing of notice of intent to terminate a Benefit Plan in a distress
termination (as described in Section 4041(c) of ERISA), (d) the institution by
the PBGC of proceedings to terminate a Benefit Plan or Multiemployer Plan, (e)
any event or condition (i) that provides a basis under Section 4042(a)(1), (2),
or (3) of ERISA for the termination of, or the appointment of a trustee to
administer, any Benefit Plan or Multiemployer Plan, or (ii) that may result in
termination of a Multiemployer Plan pursuant to Section 4041A of ERISA, (f) the
partial or complete withdrawal within the meaning of Sections 4203 and 4205 of
ERISA, of Borrower, any of its Subsidiaries or ERISA Affiliates from a
Multiemployer Plan, or (g) providing any security to any Plan under Section
401(a)(29) of the IRC by Borrower or its Subsidiaries or any of their ERISA
Affiliates.
"Event of Default" has the meaning set forth in Section 8.
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"FCC" means the United States Federal Communications Commission (or any
successor agency, commission, bureau, department, or other political subdivision
of the United States).
"FCC License" means any license, permit, certificate of compliance,
franchise, approval, or authorization, rented or issued by the FCC for the
operation of a Broadcast System, including the stations.
"FEIN" means Federal Employer Identification Number.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States, consistently applied.
"General Intangibles" means all of the Obligors' present and future
general intangibles and other personal property (including contract rights,
rights arising under common law, statutes, or regulations, choses or things in
action, goodwill, patents, trade names, trademarks, servicemarks, copyrights,
blueprints, drawings, purchase orders, customer lists, monies due or recoverable
from pension funds, route lists, rights to payment and other rights under any
royalty or licensing agreements (including all FCC Licenses)), infringement
claims, computer programs, information contained on computer disks or tapes,
literature, reports, catalogs, deposit accounts, insurance premium rebates, tax
refunds, and tax refund claims).
"Guarantors" means Catholic Radio Network, LLC, a California limited
liability company, Catholic Radio Network Holdings, LLC, a Delaware limited
liability company, and CRNO.
"Hazardous Materials" means the substances defined as "hazardous
substances," "hazardous substances," "hazardous materials," or "toxic
substances" int eh Comprehensive Environmental Response Compensation and
Liability Act of 1980, as amended, 42 USC ss. 9601, et seq., or in the Hazardous
Materials Transportation Act, 49 USC ss.1801, et seq., or in the Resources
Conservation and Recovery Act, 42 USC ss. 6901, et seq., and all substances
defined as "hazardous waste" under the Statutes of the States of California,
Colorado, Illinois, Kansas, Minnesota, Pennsylvania and Wisconsin (with respect
to Real Property located in such states) or any regulations adopted pursuant to
those statues, including, but not limited to, asbestos and asbestos containing
materials.
"Indebtedness" shall mean at a particular time, (i) indebtedness for
borrowed money or for the deferred purchase price of property or services in
respect of which any Borrower is liable, contingently or otherwise, as obligor
or otherwise or any commitment by which any Borrower assures a creditor against
loss, including contingent reimbursement obligations with respect to letters of
credit, (ii) indebtedness guaranteed in any manner by any Borrower, including
guarantees in the form of an agreement to repurchase or reimburse; provided,
however, that the amount of indebtedness represented by any guarantee of limited
recourse shall be the lesser of the amount of indebtedness so guaranteed or the
value of the asset to which the recourse of such indebtedness is limited to,
(iii) Capitalized Lease Obligations, (iv) any unfunded obligation of any
Borrower to a "multiemployer plan" as such term is defined under the Employee
Retirement Income Security Act
6
of 1974, as amended ("ERISA"), and (v) all accounts payable of any Borrower,
which are not being contested in good faith by appropriate proceedings and which
are more than 90 days past due.
"Initial Subordinated Indebtedness" means the Indebtedness not
exceeding $15,000,000 described in Schedule 7.13, including all renewals and
refinancings thereof.
"Insolvency Proceeding" means any proceeding commenced by or against
any Person under any provision of the Bankruptcy Code or under any other
bankruptcy or insolvency law, assignments for the benefit of creditors, formal
or informal moratoria, compositions, extensions generally with creditors, or
proceedings seeking reorganization, arrangement, or other similar relief.
"Intellectual Property" shall mean each Obligor's present and future
designs, patents, patent rights and applications therefor, trademarks and
registrations or applications therefor, trade names, inventions, copyrights and
all applications and registrations therefor, software or computer programs,
license rights, trade secrets, methods, processes, know-how, drawings,
specifications, descriptions, and all memoranda, notes, and records with respect
to any research and development, and any interest of any Obligor in the
foregoing, whether now owned or hereafter acquired by such Obligor and proceed s
of all the foregoing, including, without limitation, proceeds of insurance
policies thereon.
"Interest Reserve Escrow Agreement" means that certain Interest Reserve
Escrow Agreement of even date herewith between Borrower and Lender.
"Inventory" shall mean all of the inventory of each Obligor of every
kind and description, now or at any time hereafter owned by or in the custody or
possession, actual or constructive, of such Borrower, wherever located,
including, but not limited to, all merchandise, raw materials, parts, supplies,
work-in-process and finished goods intended for sale, together with all the
containers, packing, packaging, shipping and similar materials related thereto,
and including such inventory as is temporarily out of such Obligor's custody or
possession, including inventory on the premises of others and items in transit,
and including any returns and repossessions upon any accounts, documents,
instruments or chattel paper relating to or arising from the sale of inventory,
and all substitutions and replacements therefor, and all additions and
accessions thereto, and all ledgers, books of account, records, computer
printouts, computer runs, and other computer-prepared information relating to
any of the foregoing, and any and all proceeds of any of the foregoing,
including, without limitation, proceeds of insurance policies thereon.
"IRC" means the Internal Revenue Code of 1986, as amended, and the
regulations thereunder.
"Key Leases" has the meaning assigned to such term in the Purchase
Agreement.
"Lender Expenses" means all: reasonable actual costs or expenses
(including taxes and insurance premiums) required to be paid by any Obligor
under any of the Loan Documents that are
7
paid or incurred by Lender; reasonable fees or charges paid or incurred by
Lender in connection with the Term Loan, all reasonable fees or charges for
photocopying, notarization, couriers and messengers, tax lien, litigation, and
UCC searches, filing, recording, publication, and real estate title policies and
endorsements; actual costs and expenses incurred by Lender in the disbursement
of funds to Borrower (by wire transfer or otherwise); actual charges paid or
incurred by Lender resulting from the dishonor of checks; reasonable costs and
expenses paid or incurred by Lender to correct any default or enforce any
provision of the Loan Documents, including any extension fees advanced by the
Lender pursuant to Section 9.1(c); or in gaining possession of, maintaining,
handling, preserving, storing, shipping, selling, preparing for sale, or
advertising to sell the Collateral, or any portion thereof, irrespective of
whether a sale is consummated; and Lender's reasonable attorneys fees and
expenses incurred in advising, structuring, drafting, reviewing, administering,
amending, terminating, enforcing (including attorneys fees and expenses incurred
in connection with a "workout," a "restructuring," or an Insolvency Proceeding
concerning any Obligor), defending, or concerning the Loan Documents,
irrespective of whether suit is brought, provided however, that if any party
commences a proceeding for the interpretation, reformation, enforcement or
rescission of this Agreement, the prevailing party shall be entitled to recover
from the other parties reasonable attorneys' fees and court and other litigation
costs incurred, including but not limited to service of process, filing fees,
court and court reporter costs, investigative costs, expert witness fees, and
the cost of any bonds, whether taxable or not, and that such reimbursement shall
be included in any judgment or final order issued in that proceeding. The
"prevailing party" means the party determined by the court to most nearly
prevail and not necessarily the one in whose favor a judgment is rendered.
"Lien" means any interest in property securing an obligation owed to,
or a claim by, any Person other than the owner of the property, whether such
interest shall be based on the common law, statute, or contract, whether such
interest shall be recorded or perfected, and whether such interest shall be
contingent upon the occurrence of some future event or events or the existence
of some future circumstance or circumstances, including the lien or security
interest arising from a mortgage, deed of trust, encumbrance, pledge,
hypothecation, assignment, deposit arrangement, security agreement, adverse
claim or charge, conditional sale or trust receipt, or from a lease,
consignment, or bailment for security purposes and also including reservations,
exceptions, encroachments, easements, rights-of-way, covenants, conditions,
restrictions, leases, and other title exceptions and encumbrances affecting Real
Property.
"Loan Documents" means this Agreement, the Note, the Mortgages, the
Collateral Assignments of Key Leases, the Collateral Assignments of Tower
Leases, the CRN Guaranty, the CRNH Guaranty, the Interest Reserve Escrow
Agreement, the Borrower Security Agreement, the Borrower Pledge Agreements, the
CRNO Security Agreement, the CRNO Limited Guaranty, the CRNL Security Agreement,
and any other agreement entered into now or in the future, in connection with
this Agreement.
"Material Adverse Occurrence" means, with respect to any Obligor, (a) a
material adverse change in the business, prospects, operations, results of
operations, assets, liabilities or condition
8
(financial or otherwise) of such Obligor, (b) the material impairment of such
Obligor's ability to perform its obligations under the Loan Documents to which
it is a party or of Lender to enforce the Obligations or realize upon that
Obligor's Collateral, or (c) a material impairment of the priority of Lender's
Liens with respect to that Obligor's Collateral.
"Maturity Date" has the meaning set forth in Section 3.4.
"Mortgages" means one or more mortgages, deeds of trust, or deeds to
secure debt, executed by an Obligor in favor of Lender, the form and substance
of which shall be satisfactory to Lender.
"Multiemployer Plan" means a "multiemployer plan" (as defined in
Section 4001(a)(3) of ERISA) to which Borrower, any of its Subsidiaries, or any
ERISA Affiliate has contributed, or was obligated to contribute, within the past
six years.
"Obligations" means all obligations of Borrower to Lender under the
Note (including any interest that, but for the provisions of the Bankruptcy
Code, would have accrued), and the other Loan Documents, and all Lender Expenses
(including any fees or expenses that, but for the provisions of the Bankruptcy
Code, would have accrued).
"Obligors" means Borrower, CRNO and CRNL, or any of them.
"PBGC" means the Pension Benefit Guaranty Corporation as defined in
Title IV of ERISA, or any successor thereto.
"Permitted Liens" means Liens set forth on Schedule P-1.
"Permitted Protest" means the right of an Obligor to protest any Lien
other than any such Lien that secures the Obligations, tax (other than payroll
taxes or taxes that are the subject of a United States federal tax lien), or
rental payment, provided that (a) a reserve with respect to such obligation is
established on the books of the applicable Obligor in an amount that is
reasonably satisfactory to Lender, (b) any such protest is instituted and
diligently prosecuted by such Obligor in good faith, and (c) Lender is
reasonably satisfied that, while any such protest is pending, there will be no
impairment of the enforceability, validity, or priority of any of the Liens of
Lender in and to the Collateral.
"Person" means and includes natural persons, corporations, limited
liability companies, limited partnerships, general partnerships, limited
liability partnerships, joint ventures, trusts, land trusts, business trusts, or
other organizations, irrespective of whether they are legal entities, and
governments and agencies and political subdivisions thereof.
"Plan" means any employee benefit plan, program, or arrangement
maintained or contributed to by Borrower or with respect to which it may incur
liability.
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"Purchase Agreement" has the meaning assigned to it in the Recitals.
"Real Property" means any estates or interests in real property now
owned or hereafter acquired by any of the Obligors.
"Reportable Event" means any of the events described in Section 4043(c)
of ERISA or the regulations thereunder other than a Reportable Event as to which
the provision of 30 days notice to the PBGC is waived under applicable
regulations.
"Solvent" means, with respect to any Person on a particular date, that
on such date (a) at fair valuations, all of the properties and assets of such
Person are greater than the sum of the debts,including contingent liabilities,
of such Person, (b) the present fair salable value of the properties and 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 properties and 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 beyond such
Person's ability to pay as such debts 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 properties and assets would constitute
unreasonably small capital after giving due consideration to the prevailing
practices in the industry in which such Person is engaged. In computing the
amount of contingent liabilities at any time, it is intended that such
liabilities will be computed at the amount that, in light of all the facts and
circumstances existing at such time, represents the amount that reasonably can
be expected to become an actual or matured liability.
"Stations" means the radio stations listed on Schedule S-1.
"Subordinated Indebtedness" means Initial Subordinated Indebtedness
together with Additional Subordinated Indebtedness, if any.
"Subsidiary" of a Person means a corporation, partnership, limited
liability company, or other entity in which that Person directly or indirectly
owns or controls the shares of stock or other ownership interests having
ordinary voting power to elect a majority of the board of directors (or appoint
other comparable managers) of such corporation, partnership, limited liability
company, or other entity.
"Term Loan" has the meaning set forth in the Recitals.
"Term Loan Commitment" means $15,000,000.
"Tower Leases" has the meaning assigned to such term in the Purchase
Agreement.
"Unrestricted Cash Balances" has the meaning set forth in Schedule
D-1 hereto.
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"Vander Eyk Agreement" means certain Agreement for Purchase and Sale of
Real Property and Escrow Instructions, made and entered into as of August 20,
1997, by and between Xxxxxxxxx Xxxxxx Eyk, Sr. and Xxxxxx Xxxxxx Eyk, husband
and wife ("Seller") and Lender with respect to approximately sixty-seven (67)
acres in San Bernardino County, State of California, as amended, which Agreement
for Purchase and Sale of Real Property and Escrow Instructions has been assigned
to the Borrower pursuant to the terms of the Purchase Agreement.
"Voidable Transfer" has the meaning set forth in Section 15.8.
1.2 ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP. When used herein, the
term "financial statements" shall include the notes and schedules thereto.
Whenever the term "Borrower" is used in respect of a financial covenant or a
related definition, it shall be understood to mean Borrower on a consolidated
basis unless the context clearly requires otherwise.
1.3 CONSTRUCTION. Unless the context of this Agreement clearly
requires otherwise, references to the plural include the singular, references to
the singular include the plural, the term "including" is not limiting, and the
term "or" has, except where otherwise indicated, the inclusive meaning
represented by the phrase "and/or." The words "hereof," "herein," "hereby,"
"hereunder," and similar terms in this Agreement refer to this Agreement as a
whole and not to any particular provision of this Agreement. An Event of Default
shall "continue" or be "continuing" until such Event of Default has been waived
in writing by Lender. Section, subsection, clause, schedule, and exhibit
references are to this Agreement unless otherwise specified. Any reference in
this Agreement or in the Loan Documents to this Agreement or any of the Loan
Documents shall include all alterations, amendments, changes, extensions,
modifications, joinders, renewals, replacements, substitutions, and supplements,
thereto and thereof, as applicable.
1.4 SCHEDULES AND EXHIBITS. All of the schedules and exhibits
attached to this Agreement shall be deemed incorporated herein by reference.
2. TERM LOAN AND TERMS OF PAYMENT.
2.1 TERM LOAN.
(a) As of the date hereof, Lender agrees to make
the Term Loan to Borrower.
(b) The Term Loan shall be repaid in monthly
installments of accrued interest only. Each such installment shall be due and
payable on the last day of each month commencing on November 30, 1998 and
continuing on the last day of each succeeding month until and including April
30, 2000, when the remaining unpaid principal balance plus accrued interest of
the Term Loan shall be due and payable in full. The outstanding principal
balance and all accrued and unpaid interest under the Term Loan shall be due and
payable upon the termination of
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this Agreement, whether by its terms, by prepayment, by acceleration, or
otherwise. All amounts outstanding under the Term Loan shall constitute
Obligations.
(c) The Lender is hereby authorized and directed
to advance the entire proceeds of the Term Loan directly to the Lender and its
wholly-owned subsidiaries for application against the Purchase Price, as that
term is defined in the Purchase Agreement. Borrower acknowledges receipt of the
loan proceeds of the Term Loan.
2.2 INTEREST: RATES, PAYMENTS, AND CALCULATIONS.
(a) Interest Rate. So long as no Event of
Default has occurred and is continuing, the outstanding principal balance of the
Note as well as all other outstanding and unpaid Obligations shall bear interest
at a fixed rate per annum equal to ten percent (10.0%).
(b) Default Rate. Upon the occurrence and
during the continuation of an Event of Default, the outstanding principal
balance of the Note as well as all other outstanding and unpaid Obligations
shall bear interest at a per annum rate equal to four and one-half percent
(4.5%) above the rate of interest otherwise applicable thereto.
(c) Payments. Interest payable hereunder
shall be due and payable, in arrears, on the last day of each month during the
term hereof. All payments and prepayments by the Borrower on the Term Note shall
be made in immediately available funds to the Bank at its main office in
Minneapolis, Minnesota, not later than 2:00 p.m. (Minneapolis time) on the day
such payment is due. Funds received after such hour shall be deemed to have been
received by the Bank on the next Business Day. Borrower hereby authorizes
Lender, at its option, without prior notice to Borrower, to charge such interest
due under the Term Note to the Interest Reserve Escrow Agreement, in the manner
provided for therein. The Term Note may be prepaid from time to time in whole or
in part without penalty or premium.
(d) Computation. All interest and fees
chargeable under the Loan Documents shall be computed on the basis of a 365/366
day year.
(e) Excess Interest. It is the intention
of the Lender and the Borrower to comply with the laws of the State of
Minnesota, and notwithstanding any provision to the contrary contained herein or
in the other Loan Documents, the Borrower shall not be required to pay, and the
Lender shall not be permitted to collect any amount in excess of, the maximum
amount of interest permitted by law ("Excess Interest"). If any Excess Interest
is provided for or determined to have been provided for by a court of competent
jurisdiction in this Agreement or in any of the other Loan Documents, then in
such event (A) the provisions of this subparagraph shall govern and control; (B)
neither the Borrower nor any guarantor or endorser shall be obligated to pay any
Excess Interest; (C) any Excess Interest that the Lender may have received
hereunder shall be, at the Lender's option, (1) applied as a credit against the
outstanding principal balance of the Obligations or accrued and unpaid interest
(not to exceed the maximum amount permitted by law), (2) refunded
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to the payor thereof, or (3) any combination of the foregoing; (D) the interest
rate(s) provided for herein shall be automatically reduced to the maximum lawful
rate allowed under applicable law, and this Agreement and the other Loan
Documents shall be deemed to have been, and shall be, reformed and modified to
reflect such reduction; and (E) neither the Borrower nor any Guarantor shall
have any action against the Lender for any damages arising out of the payment or
collection of any Excess Interest.
3. CONDITIONS; TERM OF AGREEMENT.
3.1 CONDITIONS PRECEDENT TO THE TERM LOAN. The obligation of
Lender to make the Term Loan is subject to the fulfillment, to the satisfaction
of Lender and its counsel, of each of the following conditions on or before the
Closing Date:
(a) the Closing Date of the Purchase Agreement
shall have occurred;
(b) Lender shall have received each of the
following documents, duly executed, and each such document shall be in full
force and effect:
(1) a Term Promissory Note, of even date
herewith executed by the Borrower and
payable to the order of the Lender in the
original principal amount of $15,000,000
("Note");
(2) a Borrower Security Agreement of even
date herewith, whereby the Borrower grants
to the Lender a Lien in and to all of
Borrower's now owned or hereafter acquired
Accounts, Chattel Paper, Contracts,
Documents, Equipment, General Intangibles,
Inventory, and other personal property
together with proceeds of the foregoing
("Borrower Security Agreement");
(3) UCC-1 Financing Statements, listing
Borrower, as debtor, and Lender, as secured
party, and containing a description of the
collateral set forth in the Borrower
Security Agreement for filing with the
Secretaries of State of California,
Colorado, Illinois, Kansas, Minnesota,
Pennsylvania and Wisconsin and such other
offices as the Lender deems necessary to
protect its Lien in such collateral;
(4) a Membership Interest Pledge Agreement,
of even date herewith, executed by the
Borrower in favor of Lender, with respect to
the Borrower's membership interest in CRNO
and a duly executed Membership Interest
Pledge Agreement, of even date herewith,
executed by the Borrower in favor of the
Lender, with respect to the Borrower's
membership interest in CRNL (collectively,
the "Borrower Pledge Agreements");
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(5) UCC-1 Financing Statements, listing
Borrower, as debtor and Lender, as secured
party and containing a description of the
collateral set forth in the Borrower Pledge
Agreements, for filing with the Secretaries
of State of Delaware and California and such
other offices as the Lender deems necessary
to protect its Lien in such collateral;
(6) an Assignment Instruction, of even date
herewith, executed by the Borrower and
acknowledged by CRNO with respect to the
Borrower's membership interest in CRNO and
an Assignment Instruction, of even date
herewith, executed by the Borrower and
acknowledged by CRNL with respect to
Borrower's membership interest in CRNL;
(7) a Guaranty of the Note, executed by
CRN ("CRN Guaranty");
(8) a Guaranty of the Note, executed
by CRNH ("CRNH Guaranty");
(9) a Guaranty of the Note, executed by
CRNO ("CRNO Guaranty");
(10) each of the Mortgages;
(11) each of the Collateral Assignments of
Key Leases, together with an appropriate
consent to hypothecation from the lessor
under the relevant Key Lease, except to the
extent Lender permits one or more of such
consents to be delivered after the Closing
Date pursuant to Section 3.3 hereof;
(12) the Collateral Assignments of Tower
Leases, together with an appropriate consent
to hypothecation from the lessor under the
relevant Tower Lease, except to the extent
Lender permits one or more of such consents
to be delivered after the Closing Date
pursuant to Section 3.3;
(13) a Security Agreement, of even date
herewith, executed by CRNO in favor of the
Lender ("CRNO Security Agreement");
(14) duly executed UCC-1 Financing
Statements listing CRNO, as debtor, and
Lender, as secured party, and containing a
description of the collateral set forth in
the CRNO Security Agreement, for filing with
the Secretaries of State of California,
Colorado, Illinois, Kansas,
14
Minnesota, Pennsylvania and Wisconsin and
such other offices as the Lender deems
necessary to protect its Lien in such
collateral;
(15) a Security Agreement, of even date
herewith, executed by CRNL in favor of the
Lender ("CRNL Security Agreement");
(16) duly executed UCC-1 Financing
Statements listing CRNL, as debtor, and
Lender, as secured party, and containing a
description of the collateral set forth in
the CRNL Security Agreement, for filing with
the Secretaries of State of Delaware and
California and such other offices as the
Lender deems necessary to protect its Lien
in such collateral;
(17) duly executed Interest Reserve Escrow
Agreement, executed by the Borrower and CRN;
(18) secured transaction and tax lien
searches against each of the Obligors on
such dates as the Lender shall request.
(c) Lender shall have received a certificate
from the Secretary of each Obligor attesting to the resolutions of such
Obligor's Board of Governors authorizing its execution, delivery, and
performance of the Loan Documents to which such Obligor is a party and
authorizing specific officers of such Obligor to execute the same;
(d) Lender shall have received copies of each
Obligor's Governing Documents, as amended, modified, or supplemented to the
Closing Date, certified by the Secretary of the applicable Obligor;
(e) Lender shall have received a certificate of
status with respect to each Obligor, dated within 10 days of the Closing Date,
such certificate to be issued by the appropriate officer of the jurisdiction of
organization of such Obligor, which certificate shall indicate that such Obligor
is in good standing in such jurisdiction;
(f) Lender shall have received a certificate of
insurance, together with the endorsements thereto, as are required by Section
6.3, the form and substance of which shall be satisfactory to Lender and its
counsel, except to the extent Lender permits one or more of the same to be
delivered after the Closing Date pursuant to Section 3.3 hereof;
(g) Lender shall have received balance sheet
information in form reasonably acceptable to Lender, as of September 30, 1998,
for each Obligor;
(h) Lender shall have received an opinion of
Borrower's counsel in form and substance satisfactory to Lender in its sole
discretion;
15
(i) Lender shall have received mortgagee title
insurance policies (or marked commitments to issue the same) for the Real
Property Collateral issued by a title insurance company satisfactory to Lender
(each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts
satisfactory to Lender assuring Lender that the Mortgages are valid and
enforceable first priority mortgage Liens, free and clear of all defects and
encumbrances except Permitted Liens, and the Mortgage Policies shall otherwise
be in form and substance reasonably satisfactory to Lender; in each case, except
to the extent Lender permits one or more of the same to be delivered after the
Closing Date pursuant to Section 3.3 hereof;
(j) Lender shall have received payment of the
Lender Expenses as provided for in Section 6.14;
(k) all other documents and legal matters in
connection with the transactions contemplated by this Agreement shall have been
delivered, executed, or recorded and shall be in form and substance reasonably
satisfactory to Lender and its counsel.
3.2 ADDITIONAL CONDITIONS PRECEDENT TO THE TERM LOAN. The
following shall be conditions precedent to the obligation of the Lender to make
the Term Loan hereunder:
(a) the representations and warranties contained
in this Agreement and the other Loan Documents shall be true and correct in all
material respects on and as of the date of such extension of credit, as though
made on and as of such date (except to the extent that such representations and
warranties relate solely to an earlier date);
(b) no Default or Event of Default shall have
occurred and be continuing on the date of such extension of credit, nor shall
either result from the making thereof; and
(c) no injunction, writ, restraining order, or
other order of any nature prohibiting, directly or indirectly, the extending of
such credit shall have been issued and remain in force by any governmental
authority against Borrower, Lender, or any of their Affiliates.
3.3 CONDITION SUBSEQUENT. As conditions subsequent to
closing hereunder, Borrower shall:
3.3.1 (a) within thirty (30) days of the Closing Date,
deliver to Lender the certified copies of the
policies of insurance, together with the endorsements
thereto, as are required by Section 6.3, the form and
substance of which shall be satisfactory to Lender
and its counsel.
(b) within 30 days following the Closing Date,
deliver to Lender each of the Mortgage Policies to
the extent the same were not required by Lender to be
delivered on or before the Closing Date under Section
3.1.
16
3.3.2 use its good faith efforts to perform or cause to be
performed each of the following, provided Borrower shall not
be required to incur any additional monetary or other
obligations to lessors in connection therewith:
(a) within days following the Closing Date, deliver
to Lender an appropriate consent to hypothecation
from the lessor under each of the Key Leases
described in the Collateral Assignments of Key
Leases.
(b) within 30 days following the Closing Date,
deliver to Lender an appropriate consent to
hypothecation from the lessor under each of the Tower
Leases described in the Collateral Assignments of
Tower Leases.
(c) within 30 days following the Closing Date,
deliver to Lender the Collateral Access Agreements.
3.4 TERM. This Agreement shall become effective upon the
execution and delivery hereof by Borrower and Lender and shall continue in full
force and effect for a term ending on the date that is 18 months from the
Closing Date (the "Maturity Date"), unless sooner terminated pursuant to the
terms hereof.
4. REPRESENTATIONS AND WARRANTIES.
In order to induce Lender to enter into this Agreement,
Borrower makes the following representations and warranties which shall be true,
correct, and complete in all respects as of the date hereof, and shall be true,
correct, and complete in all respects as of the Closing Date (except to the
extent that such representations and warranties relate solely to an earlier
date) and such representations and warranties shall survive the execution and
delivery of this Agreement:
4.1 CORPORATE EXISTENCE. The Borrower and each of the other
Obligors is a limited liability company duly organized, validly existing and in
good standing under the laws of the State of Delaware, has the requisite power
and authority to own its property and to transact the business in which it is
now engaged, and both Borrower and CRNO are duly qualified and authorized to do
business in California and in each other jurisdiction in which the nature of its
business or properties makes such qualification necessary, except where the
failure to so qualify would not result in Material Adverse Occurrence. The XXXXx
for each of the Obligors are as set forth on Schedule 4.1.
4.2 SUBSIDIARIES. Except as listed on Schedule 4.2, the
Borrower has no Subsidiaries and has no other interest in any other corporation,
limited liability company partnership, joint venture, trust, unincorporated
organization or other entity.
4.3 CORPORATE POWER AND AUTHORITY. The Borrower has full
power, right and authority to execute and deliver the Loan Documents, to borrow
the funds herein provided for, and
17
to perform and observe each and all of the matters and things provided for in
said Loan Documents. The execution, delivery and performance by the Borrower of
the Loan Documents to which it is a party and the borrowings from time to time
hereunder have been duly authorized by all necessary corporate action and do and
will not (i) require any consent or approval of the members of the Borrower, or
any authorization, consent or approval by any governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
except as disclosed in writing to the Lender on Schedule 4.3, (ii) violate any
provision of any law, rule or regulation or of any order, writ, injunction or
decree presently in effect having applicability to the Borrower or of the
Governing Documents of the Borrower, (iii) result in a breach of or constitute a
default under any indenture or loan or credit agreement or any other agreement
(other than the Purchase Agreement), lease (other than the Key Leases or the
Tower Leases) or instrument to which the Borrower is a party or by which it or
its properties may be bound or affected, or (iv) result in or require the
creation or imposition of any mortgage, deed of trust, pledge, lien, security
interest or other charge or encumbrance of any nature (other than the Borrower
Security Agreement and the Borrower Pledge Agreements) upon or with respect to
any of the properties now owned or hereafter acquired by the Borrower.
4.4 OWNERSHIP. CRNH is the sole member of the Borrower and no
other Person has any rights, options, warrants, conversion or exchange rights,
with respect thereto. Borrower is the sole member of CRNO and CRNL and no other
Person has any rights, options, warrants, conversion or exchange rights, with
respect thereto.
4.5 VALIDITY OF OBLIGATIONS. This Agreement and each of the
other Loan Documents to which the Borrower is a party are the legal, valid and
binding obligation of the Borrower, enforceable against the Borrower, in
accordance with their respective terms, subject only to bankruptcy, insolvency,
reorganization, moratorium or similar laws at the time in effect affecting the
enforceability of rights of creditors generally and to general principles of
equity.
4.6 FINANCIAL STATEMENTS. The Borrower's unaudited, interim
financial statements as of September 30, 1998, copies of which have been
furnished to the Lender, present fairly the financial condition of the Borrower
as at such date and the result of its operations for the period then ended, but
subject to other year-end audit adjustments, and there has been no material
adverse change in said financial condition. The Borrower has no contingent
obligations, liabilities for taxes or other outstanding financial obligations
which are material in the aggregate, which are not otherwise disclosed in the
financial statements referred to above.
4.7 LIENS. Except as listed on Schedule P-1 and Liens existing
on the Closing Date on assets acquired by the Borrower from the Lender pursuant
to the Purchase Agreement, the Borrower has good and marketable title to all of
its properties and assets, which properties and assets are not subject to any
mortgage, pledge, title retention lien, or other lien, encumbrance or security
interest.
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4.8 LITIGATION. Except as listed on Schedule 4.8, as of the
date of this Agreement, there is no action, suit or proceeding at law or equity,
or before or by any federal, state, local or other governmental departments,
commission, board, bureau, agency or instrumentality, domestic or foreign,
pending, or to the knowledge of any officer of Borrower threatened, against the
Borrower and its respective businesses, operations, properties, assets, or
financial conditions which, if determined adversely would constitute a Material
Adverse Occurrence; and the Borrower is not in default with respect to any final
judgment, writ, injunction, decree, rule or regulation of any court or federal,
state, local or other governmental department, commission, board, bureau, agency
or instrumentality, domestic or foreign, which, if determined adversely, would
be a Material Adverse Occurrence.
4.9 ACCURACY OF INFORMATION. All factual information
heretofore or contemporaneously furnished by or on behalf of the Borrower, any
Subsidiary or the Guarantors to the Lender for purposes of or in connection with
this Agreement or any transaction contemplated hereby (other than the transfer
of assets pursuant to the Purchase Agreement), is and all other such factual
information hereafter furnished by or on behalf of the Borrower to the Lender
will be, true and accurate in every material respect on the date as of which
such information is dated or certified and not incomplete by omitting to state
any material fact necessary to make such information not misleading on such
date.
4.10 TAX RETURNS; AUDITS. The Borrower has filed all federal
and state income tax returns which, to the knowledge of Borrower, are required
to be filed, and has paid all taxes as shown on said returns and on all
assessments received by them to the extent that such taxes have become due. The
Borrower has no knowledge of any objections to or claims for additional taxes by
federal, state or local taxing authorities for subsequent years.
4.11 CORPORATE TAKEOVERS. No proceeds of the Note will be used
to acquire any security in any transaction which is subject to Section 13 or 14
to the Securities and Exchange Act of 1934, including without limitation
Sections 13(d) and 14(d) thereof.
4.12 INVESTMENT COMPANY ACT. The Borrower is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
4.13 CONSENTS, ETC. No consent, approval, authorization of, or
registration, declaration or filing with any governmental authority is required
on the part of the Borrower in connection with the execution and delivery of
this Agreement or the other Loan Documents or the performance of or compliance
with the terms, provisions and conditions hereof, except as described on
Schedule 4.3.
4.14 ERISA. None of Borrower, any of its Subsidiaries, or any
of their ERISA Affiliates maintains or contributes to any Benefit Plan, other
than those listed on Schedule 4.14. Neither a Reportable Event nor a Prohibited
Transaction has occurred and is continuing with respect to any Plan; no notice
of intent to terminate a Plan has been filed, nor has any Plan been terminated;
19
no circumstances exist which constitute grounds entitling the PBGC to institute
proceedings to terminate, or appoint a trustee to administer, a Plan, nor has
the PBGC instituted any such proceedings; neither the Borrower nor any commonly
controlled Entity has completely or partially withdrawn from a Multiemployer
Plan; the Borrower and each Commonly Controlled Entity have met their minimum
funding requirements under ERISA with respect to all of their Plans, and the
present value of all vested benefits under each Plan does not exceed the fair
market value of all Plan assets allocable to such benefits, as determined on the
most recent valuation date of the Plan and in accordance with the provisions of
ERISA; and neither the Borrower nor any commonly Controlled Entity has incurred
any liability to the PBGC under ERISA.
4.15 NO EVENTS OF DEFAULT. No Default and no Event of
Default has occurred and is continuing as of the date hereof.
4.16 SOLVENCY. (a) Borrower is Solvent. No transfer of
property is being made by Borrower and no obligation is being incurred by
Borrower in connection with the transactions contemplated by this Agreement or
the other Loan Documents with the intent to hinder, delay, or defraud either
present or future creditors of Borrower.
(b) Each of the other Obligors is Solvent. No
transfer of property is being made by such Obligor and no obligation is being
incurred by such Obligor in connection with the transactions contemplated by
this Agreement or the other Loan Documents with the intent to hinder, delay, or
defraud either present or future creditors of such Obligor.
4.17. LICENSES AND PERMITS. All material licenses, permits,
and consents and similar rights (other than licenses, permits and consents
acquired from the Lender pursuant to the Purchase Agreement) required from any
Federal, state, or local governmental body for the ownership, construction, use,
and operation of the Stations and other properties now owned and operated by any
of the Obligors, have been validly issued and are in full force and effect and
each Obligor is in compliance, in all material respects, with all of the
provisions thereof and none of such licenses, permits, or consents is the
subject of any pending or, to the best of Borrower's knowledge and belief,
threatened proceeding for the revocation, cancellation, suspension, or
non-renewal thereof. As of the Closing Date, Schedule 4.17 is a complete and
accurate list of all such licenses, permits, and consents, and such schedule
identifies the date by which an application for the renewal of such license,
permit, or consent must be filed and describes the status of each such pending
application. Each of the Obligors owns or possesses all material patents,
trademarks, trade names, copyrights, and other similar rights necessary for the
conduct of its business as now carried on, without any known conflict of the
rights of others.
5. REPRESENTATIONS AND WARRANTIES OF LENDER
In order to induce Borrower to enter into this Agreement, Lender makes
the following representations and warranties which shall be true, correct, and
complete in all respects as of the date hereof, and shall be true, correct, and
complete in all respects as of the Closing Date (except
20
to the extent that such representations and warranties relate solely to an
earlier date) and such representations and warranties shall survive the
execution and delivery of this Agreement.
5.1 CORPORATE EXISTENCE. Lender is a corporation organized,
validly existing and in good standing under the laws of the State of Minnesota,
and has the requisite power and authority to enter into this Agreement and to
enter into and complete the transactions contemplated herein. Lender is duly
qualified and authorized to do business in each other jurisdiction in which the
nature of its business or properties makes such qualification necessary.
5.2 CORPORATE POWER AND AUTHORITY. Lender has full power,
right and authority to execute and deliver the Loan Documents to be executed by
Lender, to lend the funds herein and therein provided for, and to perform and
observe each and all of the matters and things provided for in said Loan
Documents to be performed and observed by Lender. The execution, delivery and
performance by Lender of the Loan Documents to which it is a party and the
transactions contemplated thereunder have been duly authorized by all necessary
corporate action and do and will not (i) require any consent or approval of the
shareholders of Lender, or any authorization, consent or approval by any
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign except as has already been obtained, (ii) violate any
provision of any law, rule or regulation or of any order, writ, injunction or
decree presently in effect having applicability to Borrower, (iii) violate or
result in a breach of or constitute a default under the Articles of
Incorporation, Bylaws or other governing documents of Lender, (iv) result in a
breach of or constitute a default under any indenture, loan agreement, or other
instrument or document to which Lender is a party or by which it or its
properties may be bound or affected, or (v) result in or require the creation or
imposition of any mortgage, deed or trust, pledge, lien, security interest or
other charge or encumbrance of any nature upon and with respect to any of the
properties now owned or hereafter acquired by Lender.
5.3 VALIDITY OF OBLIGATIONS. This Agreement and each of the
other loan documents to which Lender is a party are the legal, valid and binding
obligation of Lender, enforceable against Lender in accordance with their
respective terms, subject only to bankruptcy, insolvency, reorganization,
moratorium or similar laws at the time in effect affecting the enforceability of
rights of creditors generally and to general principles of equity.
6. AFFIRMATIVE COVENANTS.
Borrower hereby covenants and agrees with the Lender that for so long
as any amount remains unpaid on the Term Note or on any other amount payable by
the Borrower to the Lender hereunder or under any Loan Document, Borrower will,
unless the Lender shall otherwise consent in writing:
6.1 MAINTAIN ASSETS. Other than certain post-closing
obligations of the Lender described in the Purchase Agreement, maintain, keep
and preserve, and cause each subsidiary to maintain, keep and preserve all of
its assets, properties and equipment necessary or useful in the
21
proper conduct of its business in good repair, working order and condition,
ordinary wear and tear excepted, and from time to time make or cause to be made
all needed renewals, replacements and repairs so that at all times such
businesses can be operated efficiently.
6.2. ACCOUNTING SYSTEM. Maintain, and cause each
Subsidiary to maintain, a standard and modern system of accounting that enables
Borrower and each of the other Obligors to produce financial statements in
accordance with GAAP, and maintain records pertaining to the Collateral that
contain information as from time to time may be requested by Lender.
6.3. INSURANCE. Maintain, and cause each Subsidiary to
maintain, in addition to the insurance required by the Mortgages, the Borrower
Security Agreement, the CRNO Security Agreement and the CRNC Security Agreement,
workers' compensation, liability insurance and property insurance on all of its
properties, assets and businesses with financially sound and reputable insurance
companies or associations in such amounts and covering such risks as are usually
carried by companies engaged in the same or a similar business and similarly
situated, which insurance may provide for reasonable deductibility from coverage
thereof, and furnish to the Lender upon request appropriate evidence of the
carrying of such insurance. Borrower and each Subsidiary will obtain loss
payable endorsements on applicable insurance policies in favor of the Borrower
or Subsidiary and the Lender as their interests appear. Borrower shall cause
each insurer to provide the Lender with thirty (30) days prior written notice of
cancellation or nonrenewable.
6.4. FINANCIAL STATEMENTS. Furnish to the Lender:
6.4.1. ANNUAL. As soon as available and in any event within
120 days after the close of each of Borrower's fiscal years, the
audited balance sheet of the Borrower and its Subsidiaries as at the
end of such year and the audited statement of income and retained
earnings for Borrower and its Subsidiaries for such year, prepared by
an independent certified public accountants of recognized standing
selected by Borrower and acceptable to the Lender. Such statement shall
be accompanied by the written statement of such accountants that in
making the examination necessary for their certification of such
financial statements that they have obtained no knowledge of any
default by Borrower (or the continuance thereof) in the performance of
any of the financial covenants contained in this Agreement, or if such
accountants shall have obtained knowledge of any such default or the
continuance thereof, they shall disclose in such statement such default
or defaults or the continuance thereof, it being understood that such
accountants shall not be liable for failure to obtain knowledge of any
such default or the continuance thereof.
6.4.2. MONTHLY. As soon as available and in any event within
thirty (30) days after the end of each month, Borrower's internally
prepared balance sheet as of the end of such month and statement of
income and retained earnings for the portion of the fiscal year then
ended (such financial statement to be in a format substantially similar
to that of internally prepared financial statements previously
delivered to the Lender), all in reasonable detail
22
but subject to year-end audit adjustments and certified as accurate by the
Borrower's Chief Financial Officer or Controller.
6.4.3. TAX RETURNS. As soon as available and in any event
within thirty (30) days after their filing, the federal and state tax
returns (together with all schedules and attachments) of the Borrower,
CRNO and CRNL for each fiscal year.
6.4.4 GOVERNMENT AUTHORIZATIONS. As soon as practicable, and
in any event within ten (10) days after the receipt by any Obligor from
the FCC or any other governmental agency having jurisdiction over the
operations of any Obligor or filing or receipt thereof by any Obligor,
(i) copies of any order or notice of the FCC or such other agency or
court of competent jurisdiction which designates any material FCC
License or other material franchise, permit, or other governmental
operating authorization of any Obligor, or any application therefor,
for a hearing or which refuses renewal or extension of, or revokes or
suspends the authority of any Obligor to construct or operate a
Communications System (or portion thereof), (ii) a copy of any
competing application filed with respect to any such FCC License or
other authorization, or application therefor, of any Obligor, or any
citation, notice of violation, or order to show cause issued by the FCC
or other agency or any complaint filed by the FCC or other agency which
is available to any Obligor, and (iii) a copy of any notice or
application by any Obligor requesting authority to or notifying the FCC
of its intent to cease broadcasting on any broadcast station for any
period in excess of ten (10) days.
6.4.5. OFF-THE-AIR REPORTS. Promptly deliver notice of each
occurrence of a period of twenty-four (24) consecutive hours or more
during which any Station owned or operated by any Obligor was not
broadcasting.
6.4.6. OTHER. From time to time such other material
information pertaining to Borrower, any Subsidiary and the Guarantors
and their respective financial condition as the Lender may reasonably
request.
6.5. ACCESS TO RECORDS. At any reasonable time and from time
to time, upon seven days prior notice, permit the Lender or any agent or
representative thereof, to examine and make copies of and abstracts from the
records and books of account of Borrower, and to discuss the affairs, finances,
and accounts of Borrower with the Borrower's Chief Executive Officer or Chief
Financial Officer during normal business hours.
6.6. TAXES, ASSESSMENTS AND CHARGES. Promptly pay over to the
appropriate authorities all sums for taxes deducted and withheld from wages as
well as the employer's contributions relating thereto and promptly pay all
taxes, assessments and other governmental charges imposed upon or asserted
against Borrower's income, profits, properties and activities and all claims for
labor, materials, supplies, rental charges or otherwise which are or might
become a lien charged upon Borrower's properties, unless the same are being
contested in good faith by
23
appropriate proceedings and adequate reserves shall have been established on
Borrower's books with respect hereto.
6.7 COMPLIANCE WITH LAW. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, including all applicable provisions of ERISA and
the regulations and published interpretations thereunder, except to the extent
that Lender has undertaken the obligation to so comply pursuant to the Purchase
Agreement.
6.8. NOTIFICATION OF CHANGES. Promptly notify the
Lender in writing of:
(i) Any litigation which might materially and adversely
affect Borrower and any of the properties of Borrower;
(ii) The occurrence of any disposal or release of any
Hazardous Materials on, from or under any property owned, operated or
controlled by the Borrower, except as may have occurred in compliance
with applicable environmental laws.
6.9. EXISTENCE. Preserve and maintain, and cause each of its
Subsidiaries to preserve and maintain, its corporate existence and good standing
in the jurisdiction of its incor poration and continue in compliance in all
material respects with all applicable statutes, laws, rules and regulations.
6.10. CONDUCT OF BUSINESS. Continue to engage in a business of
the same general type as that now being conducted by Borrower on the date of
this Agreement, provided, however, that nothing contained in this Section shall
prevent Borrower from discontinuing any part of the business of Borrower, if the
discontinuance is, in the opinion of the Board of Governors of Borrower, in the
best interests of Borrower, and such discontinuance shall not be disadvantageous
to the Lender.
6.11. BOOKS AND RECORDS. Keep true and accurate records
and books of accounts, in accordance with GAAP.
6.12 VANDER EYK AGREEMENT. Pursuant to the terms of the Vander
Eyk Agreement, take all steps necessary and pay all sums required to purchase
the Property, as defined in the Vander Eyk Agreement, by not later than January
12, 1999, including, without limitation, the payment of such extension fees as
may be required under the terms of the Vander Eyk Agreement to extend the
scheduled Close of Escrow, as defined in the Vander Eyk Agreement, through such
date at least five (5) Business Days prior to the date such extension fee
payment would otherwise be due under the terms of the Vander Eyk Agreement, and
to provide the Lender within two (2) Business Days thereafter with written
evidence of the payment of such extension fees.
24
6.13. SURVIVAL OF REPRESENTATIONS, ETC. All representations
and warranties by Borrower herein shall survive delivery of the Term Note and
any investigation at any time made by or on behalf of Lender shall not diminish
Lender's right to rely upon such representations and warranties.
6.14. COSTS AND EXPENSES. The Borrower agrees to pay on demand
all Lender Expenses, provided however, that Borrower and Lender have agreed to
share equally the costs related to the Mortgage Policies and the fees in
connection with the Interest Reserve Escrow Agreement and provided further
however, that Lender's actual attorneys' fees and disbursements for the
preparation and negotiation of the Loan Documents shall not exceed $25,000.
7. NEGATIVE COVENANTS.
Borrower hereby covenants and agrees with the Lender that so long as
any amount shall remain unpaid on the Term Note or any amount payable by the
Borrower to the Lender hereunder or under any other Loan Document, Borrower will
not, without the written consent of the Lender:
7.1. LIENS AND ENCUMBRANCES. Create, assume, incur or suffer
to exist any pledge, mortgage, assignment or other Lien or encumbrance of any
kind, of or upon any of its prop erty of any kind, whether now owned or
hereafter acquired, or of or upon the income or profits therefrom except for:
7.1.1. Liens for taxes, assessments and other governmental
charges which are not delinquent or which are being contested in good
faith by appropriate proceedings diligently conducted, against which
required reserves have been set up;
7.1.2. Liens incurred or deposits made in the ordinary course
of business in connection with worker's compensation, unemployment
insurance or other similar laws or to secure the performance of
statutory obligations of a like nature (exclusive of obligations for
the payment of money borrowed);
7.1.3. Liens imposed by law in connection with transactions in
the ordinary course of business, such as liens of carriers,
warehousemen, mechanics and materialmen for sums not yet due or being
contested in good faith and by appropriate proceedings diligently
conducted, against which adequate reserves have been set up;
7.1.4. Landlords' liens under real estate leases to which
Borrower is a party;
7.1.5. First priority purchase money mortgages, liens, or
security interests (which term for purposes of this subsection shall
include conditional sale agreements or other title retention agreements
and leases in the nature of title retention agreements) upon or in real
property or Equipment acquired after the date hereof incurred solely to
secure the financing, and any refinancings from time to time thereof,
of any such real property or Equipment, or
25
mortgages, liens or security interests existing in such property at the
time of acquisition thereof, provided that no such mortgage, lien or
security interest extends or shall extend to or cover any property of
the Borrower, other than the real property or Equipment then being
acquired and Lender hereby agrees to release or subordinate its Lien in
any such real property or Equipment as requested by the purchase money
lienholder thereof;
7.1.6. Easements, rights-of-way, restrictions and other
similar encumbrances which, in the aggregate, do not materially
interfere with the occupation, use, and enjoyment by Borrower of the
property or assets encumbered thereby in the normal course of its
business or materially impair the value of the property subject
thereto;
7.1.7. Liens that may arise in connection with Capitalized
Leases permitted by Section 7.2, provided no such Lien shall extend to
or cover any assets other than the assets subject to such Capitalized
Lease;
7.1.8. Liens described on Schedule P-1 hereto;
7.1.9. Liens existing on the date hereof in the assets
obtained by the Borrower from the Lender pursuant to the Purchase
Agreement; and
7.1.10. Liens to secure Acquisition Related Indebtedness
permitted under Section 7.4(3).
7.2. INDEBTEDNESS. Create, incur, assume, contract, waive,
having outstanding, suffer to exist, or otherwise become, directly or
indirectly, liable in respect to any Debt, except:
7.2.1. Indebtedness arising out of this Agreement, the Note
and the other Loan Documents;
7.2.2. Trade payables arising in the ordinary course of
Borrower's business;
7.2.3. Indebtedness incurred in connection with Liens
permitted under Schedule P-1 or Sections 7.1.1, 7.1.2 or 7.1.5;
7.2.4. Acquisition Related Indebtedness permitted under
Section 7.4(3);
7.2.5. Indebtedness (other than Subordinated Indebtedness)
existing on the date hereof as described on Schedule 7.2, but no
extension or renewal thereof;
7.2.6. Capital Lease Obligations incurred in connection with
Capital Expenditures permitted by Section 7.10.
7.2.7. Subordinated Indebtedness.
26
7.3. DEFAULT ON OTHER OBLIGATIONS. Default upon or fail to pay
any of its other material debts or obligations as the same mature unless
adequate reserves for the payment thereof have been established on Borrower's
books with respect hereto.
7.4. CHANGE IN CONTROL, MERGE, CONSOLIDATE OR SELL. Cause,
permit or suffer directly or indirectly, any change in control, wind up,
liquidate or dissolve itself, reorganization, merge or consolidate with or into,
or convey, sell, assign, transfer, lease, or otherwise dispose of (whether in
one transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to any Person, or acquire all
or substantially all of the assets or the business of any Person, or permit any
Subsidiary to do so, except that (1) any Subsidiary may merge into or transfer
assets to the Borrower, (2) any Subsidiary may merge into or consolidate with or
transfer assets to any other Subsidiary, or (3) the Borrower may merge into or
acquire all or substantially all of the assets or securities of any other Person
provided, however, that notwithstanding any other language in this Agreement to
the contrary, to the extent that the payment of any Indebtedness incurred by the
Borrower in connection with such merger or acquisition ("Acquisition Related
Indebtedness") is to be secured with assets of the Borrower or its Subsidiaries,
the Borrower has, prior to the creating of such Acquisition Related
Indebtedness, either (a) obtained the Lender's written consent to such merger or
acquisition, or (b) funded the Interest Reserve Escrow Agreement with such
additional monies so that at the date of the creation of such Acquisition
Related Indebtedness, the aggregate balance of the Interest Reserve Escrow is at
least equal to the aggregate total remaining interest payments due on the Note
until the Maturity Date. In the event the Borrower funds the Interest Reserve
Escrow Agreement as provided above, the Borrower's obligation to maintain
Unrestricted Cash Balances under Section 7.14(b) shall cease.
7.5. INCONSISTENT AGREEMENTS. Enter into any agreement
containing any provision which would be violated or breached by any borrowing by
Borrower hereunder or by the performance by Borrower of its obligations
hereunder or under any Instrument executed pursuant hereto.
7.6. SALE AND LEASEBACK. Sell, transfer, or otherwise dispose
of any personal property to any entity and thereafter directly or indirectly
lease back the same or similar property.
7.7. LOANS. Make or permit to exist any loans advances or
intercompany transfers to or investments in any Person, entity, firm or
corporation, other than:
7.7.1. The purchase and sale of negotiable instruments;
7.7.2. Loans by CRNO to Borrower to enable Borrower to repay
the Term Loan; and
7.7.3. Loans by Borrower to CRNH to enable CRNH to repay the
Initial Subordinated Indebtedness.
27
7.8. GUARANTIES, ETC. Except for guaranties by endorsement of
negotiable instruments for deposit or collection or similar transactions in the
ordinary course of business, assume, guarantee, endorse, or otherwise be or
become directly or contingently responsible or liable (including, but not
limited to, an agreement to purchase any obligation, stock, assets, goods, or
services, or to supply or advance any funds assets, goods, or services, or to
maintain or cause such person to maintain a minimum working capital or net
worth, or otherwise to assure the creditors of any entity or individual against
loss) for obligations of any entity or individual except for (a) guaranties in
favor of the Lender and (b) guaranties issued by the Borrower in connection with
the acquisition as assets by its Subsidiaries.
7.9. DIVIDENDS. Other than for the purposes described in
Sections 7.7.2 and 7.7.3, declare or pay any distributions or dividends; or
purchase, redeem, retire, or otherwise acquire for value any of its membership
interest now or hereafter outstanding; or make any distribution of assets to its
members as such whether in cash, assets, or obligations of the Borrower; or
allocate or otherwise set apart any sum for the payment of any dividend or
distribution on, or for the purchase, redemption, or retirement of any
membership interest; or make any other distribution by reduction of capital or
otherwise in respect of any membership interest; or permit any of its
Subsidiaries to purchase or otherwise acquire for value any stock of the
Borrower or another Subsidiary.
7.10. CAPITAL EXPENDITURES. Other than Capital Expenditures
not exceeding $1,000,000 expended in connection with Borrower's compliance with
Section 6.12 and the build-out of the property so acquired, create, incur,
assume or make any Capital Expenditure for capital improvements or capital
assets, including Capital Lease Obligations, in any fiscal year in excess of
$400,000, provided however, that upon the occurrence of an Event of Default,
Borrower shall immediately cease making capital expenditures of any type until
such Event of Default is cured to the reasonable satisfaction of the Lender.
7.11. INVESTMENTS. The Borrower will not, nor will it permit
any Subsidiary to, purchase or hold beneficially any stock or other securities
or evidences of indebtedness of, make or permit to exist any loans or advances
to, or make any investment or acquire any interest whatsoever in, any other
Person, except with the prior written consent of the Lender in their sole
discretion and except:
(a) investments in direct obligations or money market funds
holding the obligations of the United States of America or any agency
or instrumentality thereof whose obligations constitute full faith and
credit obligations of the United States of America having a maturity of
one year or less, commercial paper issued by U.S. corporations rated
"A1" or "A2" by Standard & Poor's Corporation or "P1" or "P2" by
Xxxxx'x Investors Service, or certificates of deposit or Lenders'
acceptances having a maturity of one year or less issued by members of
the Federal Reserve System having deposits in excess of $200,000,000;
(b) travel advances to officers and employees of the
Borrower;
28
(c) advances in the form of progress payments, prepaid
rent or security deposits;
(d) existing investments in Borrower's Subsidiaries
described in Schedule 7.4, as the value attributed to such investments
under GAAP may be increased as a result of earnings of such
Subsidiaries;
(e) loans and distributions permitted by Sections 7.7.2
and 7.7.3.; and
(f) acquisitions permitted under Section 7.4(3).
7.12. PAYMENT ON SUBORDINATED INDEBTEDNESS. Make any payment
of principal or interest on any Subordinated Indebtedness, amend or cancel the
subordination provisions relating to such Subordinated Indebtedness, take or
omit to take any action whereby the subordination of such Subordinated
Indebtedness or any part thereof to the Note might be terminated, impaired or
adversely affected or omit to give the Lender prompt notice of any notice
received from any holder of Subordinated Indebtedness of any default under any
agreement or instrument relating to any Subordinated Indebtedness by reason
whereof such Indebtedness might become or be declared to be due and payable;
provided however, that the Borrower may make regularly scheduled payments on
Subordinated Indebtedness so long as no Default exists either prior to or
immediately following such payment.
7.13. TRANSACTIONS WITH AFFILIATES. The Borrower will not, nor
will it permit any Subsidiary, to enter into any transaction with any Affiliate
upon terms and conditions less favorable to the Borrower or such Subsidiary than
the terms and conditions which would apply in a similar transaction with a
person other than such Affiliate.
7.14. FINANCIAL COVENANTS. Fail to maintain:
(a) Cumulative Operating Income Requirement.
Cumulative Operating Income, as measured on a fiscal quarter-end basis, of at
least the amount set forth below:
================================================================================
Qtr/Yr Minimum Cumulative
Operating Income
--------------------------------------------------------------------------------
Q4/1998 ($1,161,000)
--------------------------------------------------------------------------------
Q1/1999 ($1,432,000)
--------------------------------------------------------------------------------
Q2/1999 ($1,073,000)
--------------------------------------------------------------------------------
Q3/1999 ($ 804,000)
--------------------------------------------------------------------------------
Q4/1999 ($ 204,000)
--------------------------------------------------------------------------------
Q1/2000 ($ 37,000)
================================================================================
29
(b) Unrestricted Cash Balances. Unrestricted
Cash Balances measured on a fiscal quarter-end basis, of at least $500,000.
8. EVENTS OF DEFAULT.
Any one or more of the following events shall constitute an
event of default (each, an "Event of Default") under this Agreement:
8.1 (a) The Borrower shall fail to make any payment (a) of
principal of, or interest on, the Note or (b) of the Lender Expenses, within
three (3) Business Days after the same become due and payable; or
8.2 The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 6.12; or
8.3 Any Obligor shall fail to perform or observe any other
term, covenant or agreement contained in any Loan Document on its part to be
performed or observed and such failure remains unremedied for thirty (30)
consecutive calendar days after the Lender has given such Obligor written notice
of the occurrence thereof, or if such failure cannot be cured within said thirty
(30) day period, then such greater period of time as is reasonably required to
effect such cure provided the Borrower diligently commences and pursues the
same;
8.4 The Borrower shall fail to pay any principal of, premium
or interest on or any other amount payable in respect to any Indebtedness that
is outstanding in a principal amount of at least $1,000,000 (but excluding
Indebtedness outstanding under the Note), when the same shall become due and
payable, whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), unless the same is being contested by the Borrower in good
faith with adequate reserves established;
8.5 Any order for the payment of money in excess of $250,000
(other than such a judgment or order which is fully covered by insurance for
which the appropriate insures has acknowledged responsibility in writing) shall
be issued against any Obligor and either (a) enforcement proceedings shall have
been commenced by any creditor upon such judgment or order or (b) there shall be
a period of forty-five (45) consecutive calendar days during which a stay of
enforcement of such judgment or order, by reason or a pending appeal or
otherwise, shall not be in effect; or
8.6 Any material provision of any Loan Document after delivery
thereof shall for any reason cease to be valid and binding on or enforceable
against any Obligor which is party to it, or any Obligor shall so state in
writing; or
8.7 An Insolvency Proceeding is commenced by any Obligor;
30
8.8 An Insolvency Proceeding is commenced against any Obligor
and any of the following events occur: (a) such Obligor consents to the
institution of the Insolvency Proceeding against it; (b) the petition commencing
the Insolvency Proceeding is not timely controverted; (c) the petition
commencing the Insolvency Proceeding is not dismissed within 45 calendar days of
the date of the filing thereof; (d) an interim trustee is appointed to take
possession of all or a substantial portion of the properties or assets of, or to
operate all or any substantial portion of the business of, any Obligor; or (e)
an order for relief shall have been issued or entered therein;
8.9 An Obligor makes any payment on account of Subordinated
Indebtedness, except to the extent such payment is permitted by the terms of the
subordination provisions applicable to such Subordinated Indebtedness;
8.10 The obligation of any Guarantor is limited or terminated
by operation of law or by such Guarantor thereunder, or any Guarantor becomes
the subject of an Insolvency Proceeding; or
8.11 A Change of Control occurs.
9. LENDER'S RIGHTS AND REMEDIES.
9.1 RIGHTS AND REMEDIES. Upon the occurrence, and during the
continuation, of an Event of Default, Lender may, at its election, without
notice of its election and without demand, do any one or more of the following,
all of which are authorized by Borrower (and hereby caused by Borrower to be
authorized by each of the other Obligors):
(a) Declare all Obligations, whether evidenced
by this Agreement, the Note, any of the other Loan Documents, or otherwise,
immediately due and payable in each case without presentment, demand, protest or
other notice of any kind;
(b) Terminate this Agreement and any of the
other Loan Documents as to any future liability or obligation of Lender, but
without affecting Lender's rights under the Loan Documents and without affecting
the Obligations;
(c) Cure any failure of Borrower to comply with
the requirements contained in Section 6.12, including the payment of any
extension fees required under the Vander Eyk Agreement or purchase price or the
receipt of delivery of a deed in Lender's name for the Property;
(d) Pursue any remedies provided herein or in
any other Loan Document, or law or in equity.
9.2 REMEDIES CUMULATIVE. Lender's rights and remedies under
this Agreement, the Loan Documents, and all other agreements shall be
cumulative. Lender shall have all other
31
rights and remedies not inconsistent herewith as provided under the Code, by
law, or in equity. No exercise by Lender of one right or remedy shall be deemed
an election, and no waiver by Lender of any Event of Default shall be deemed a
continuing waiver. No delay by Lender shall constitute a waiver, election, or
acquiescence by it.
10. WAIVERS; INDEMNIFICATION.
10.1 DEMAND; PROTEST; ETC. Borrower waives demand, protest,
notice of protest, notice of default or dishonor, notice of payment and
nonpayment, nonpayment at maturity, release, compromise, settlement, extension,
or renewal of accounts, documents, instruments, chattel paper, and guarantees at
any time held by Lender on which Borrower or any other Obligor may in any way be
liable.
10.2 INDEMNIFICATION. (a) The Borrower agrees to indemnify and
hold harmless the Lender, and its respective officers, directors, employees,
agents and advisors (each, an "Indemnified Party") from and against any and all
claims, damages, losses, liabilities and expense (including, without limitation,
reasonable fees and expenses of counsel) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of, in connection with the preparation for a
defense of, any investigation, litigation or proceeding arising out of, related
to or in connection with (i) a breach by Borrower of its obligations under the
Loan Documents, or, (ii) any acquisition or proposed acquisition or similar
business combination or proposed business combination by the Borrower or any of
its Subsidiaries of all or any portion of the shares of capital stock or
substantially all of the property and assets of any other Person, except to the
extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from any Indemnified Party's gross negligence or willful misconduct.
11. NOTICES.
Unless otherwise provided in this Agreement, all notices or
demands by any party relating to this Agreement or any other Loan Document shall
be in writing and (except for financial statements and other informational
documents which may be sent by first-class mail, postage prepaid) shall be
personally delivered or sent by registered or certified mail (postage prepaid,
return receipt requested), overnight courier, or telefacsimile to Borrower or to
Lender, as the case may be, at its address set forth below:
IF TO BORROWER: CRN Broadcasting, LLC
0000 Xxxxxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxx
Fax: 000.000.0000
32
WITH COPIES TO: Xxxx, Xxxx, Xxxx & Freidenrich
0000 Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Fax: 000.000.0000
IF TO LENDER: CHILDREN'S BROADCASTING CORPORATION
000 Xxxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxxxxx
Fax No. 000.000.0000
WITH COPIES TO: CHILDREN'S BROADCASTING CORPORATION
000 Xxxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
Fax No. 000.000.0000
The parties hereto may change the address at which they are to
receive notices hereunder, by notice in writing in the foregoing manner given to
the other.
12. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.
THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN AN ANOTHER LOAN DOCUMENT), THE
CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, AND THE RIGHTS
OF THE PARTIES HERETO AND THERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER
OR THEREUNDER OR RELATED HERETO OR THERETO SHALL BE DETERMINED UNDER, GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MINNESOTA. THE
PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE
STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF HENNEPIN, STATE OF MINNESOTA
OR, AT THE SOLE OPTION OF LENDER, IN ANY OTHER COURT IN WHICH LENDER SHALL
INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER
JURISDICTION OVER THE MATTER IN CONTROVERSY. EACH OF BORROWER (FOR ITSELF AND ON
BEHALF OF EACH OF THE OTHER OBLIGORS) AND LENDER WAIVES, TO THE EXTENT PERMITTED
UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE
33
DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY
PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 11. BORROWER (FOR ITSELF
AND ON BEHALF OF EACH OF THE OTHER OBLIGORS) AND LENDER HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED
THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW OR STATUTORY CLAIMS. EACH OF BORROWER (FOR ITSELF AND ON BEHALF
OF EACH OF THE OTHER OBLIGORS) AND LENDER REPRESENTS THAT IT HAS REVIEWED THIS
WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
13. GENERAL PROVISIONS.
13.1 EFFECTIVENESS. This Agreement shall be binding and deemed
effective when executed by Borrower and Lender.
13.2 SUCCESSORS AND ASSIGNS. This Agreement shall bind and
inure to the benefit of the respective successors and assigns of each of the
parties; provided, however, that Borrower may not assign this Agreement or any
rights or duties hereunder without Lender's prior written consent and any
prohibited assignment shall be absolutely void. No consent to an assignment by
Lender shall release Borrower from its Obligations. Lender may assign this
Agreement and the other Loan Documents and its rights and duties hereunder and
thereunder and no consent or approval by Borrower or any other Obligor is
required in connection with any such assignment. Lender reserves the right to
sell, assign, transfer, negotiate, or grant participations in all or any part
of, or any interest in Lender's rights and benefits hereunder and under the
other Loan Documents. In connection with any such assignment or participation,
Lender may disclose all documents and information which Lender now or hereafter
may have relating to any Obligor or any Obligor's business. To the extent that
Lender assigns its rights and obligations hereunder or under any other Loan
Document to a third Person, Lender thereafter shall be released from such
assigned obligations to the relevant Obligor and such assignment shall effect a
novation between the relevant Obligor and such third Person.
13.3 SECTION HEADINGS. Headings and numbers have been set
forth herein for convenience only. Unless the contrary is compelled by the
context, everything contained in each section applies equally to this entire
Agreement.
13.4 INTERPRETATION. Neither this Agreement nor any
uncertainty or ambiguity herein shall be construed or resolved against Lender or
Borrower or any other Obligor, whether under any rule of construction or
otherwise. On the contrary, this Agreement has been reviewed by
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all parties (including Borrower for itself and on behalf of each of the other
Obligors) and shall be construed and interpreted according to the ordinary
meaning of the words used so as to fairly accomplish the purposes and intentions
of all parties hereto.
13.5 SEVERABILITY OF PROVISIONS. Each provision of this
Agreement shall be severable from every other provision of this Agreement for
the purpose of determining the legal enforceability of any specific provision.
13.6 AMENDMENTS IN WRITING. This Agreement can only be amended
by a writing signed by both Lender and Borrower.
13.7 COUNTERPARTS; TELEFACSIMILE EXECUTION. This Agreement may
be executed in any number of counterparts and by different parties on separate
counterparts, each of which, when executed and delivered, shall be deemed to be
an original, and all of which, when taken together, shall constitute but one and
the same Agreement. Delivery of an executed counterpart of this Agreement by
telefacsimile shall be equally as effective as delivery of an original executed
counterpart of this Agreement. Any party delivering an executed counterpart of
this Agreement by telefacsimile also shall deliver an original executed
counterpart of this Agreement but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Agreement. The foregoing shall apply to each other Loan Document MUTATIS
MUTANDIS.
13.8 REVIVAL AND REINSTATEMENT OF OBLIGATIONS. If the
incurrence or payment of the Obligations by Borrower or any Guarantor of the
Obligations or the transfer by either or both of such parties to Lender of any
property of either or both of such parties should for any reason subsequently be
declared to be void or voidable under any state or federal law relating to
creditors' rights, including provisions of the Bankruptcy Code relating to
fraudulent conveyances, preferences, and other voidable or recoverable payments
of money or transfers of property (collectively, a "Voidable Transfer"), and if
Lender is required to repay or restore, in whole or in part, any such Voidable
Transfer, or elects to do so upon the reasonable advice of its counsel, then, as
to any such Voidable Transfer, or the amount thereof that Lender is required or
elects to repay or restore, and as to all reasonable costs, expenses, and
attorneys fees of Lender related thereto, the liability of Borrower or such
Guarantor automatically shall be revived, reinstated, and restored and shall
exist as though such Voidable Transfer had never been made.
13.9 INTEGRATION. This Agreement, together with the other Loan
Documents, reflects the entire understanding of the parties with respect to the
transactions contemplated hereby
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and shall not be contradicted or qualified by any other agreement, oral or
written, before the date hereof.
13.10 PURCHASE AGREEMENT. Nothing in this Agreement is
intended to modify, change or abridge the respective representations,
warranties, rights, duties and remedies under the Purchase Agreement parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Loan
Agreement to be executed in Minneapolis, Minnesota, the day and year first above
written.
CHILDREN'S BROADCASTING CORPORATION, a
Minnesota corporation
By___________________________________________________
Xxxxxxxxxxx X. Xxxx
Title: Chief Executive Officer
CRN BROADCASTING, LLC,
a Delaware limited liability company
By___________________________________________________
Xxxx X. Xxxxx
Title: President and Chief Financial Officer
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SCHEDULES AND EXHIBITS
Schedule D-1 Definitions for Financial Covenants
Schedule P-1 Permitted Liens
Schedule S-1 Stations
Schedule 4.20 Licenses and Permits and Renewals thereof
Schedule 4.1 XXXXx
Schedule 4.2 Subsidiaries
Schedule 4.3 Required Consents
Schedule 4.8 Litigation
Schedule 4.14 ERISA Benefit Plans
Schedule 4.17 Licenses Other than Acquired
Schedule 7.2 Existing Indebtedness
Schedule 7.13 Initial Subordinated Indebtedness
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SCHEDULE D-1
FINANCIAL COVENANT DEFINITIONS
"CUMULATIVE OPERATING INCOME" means the net income of the Borrower and
its Subsidiaries plus provisions for income taxes, interest expense,
depreciation, amortization and extraordinary charges or credits.
"UNRESTRICTED CASH BALANCES" means all cash and cash equivalents (i.e.,
certificates of deposit, money market accounts) of the Borrower and its
Subsidiaries which are not subject to any Lien.
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