EXHIBIT A
CREDIT AGREEMENT
DATED AS OF JUNE 12, 1996
AS AMENDED AND RESTATED
AS OF FEBRUARY 14, 1997
AND AS FURTHER AMENDED AND RESTATED
AS OF SEPTEMBER 16, 1997
AMONG
JACOR COMMUNICATIONS COMPANY,
THE LENDERS PARTY HERETO,
THE CO-AGENTS PARTY HERETO,
THE LEAD MANAGERS PARTY HERETO,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
(as successor by merger to Bank of America Illinois),
AS SYNDICATION AGENT,
BANQUE PARIBAS,
AS DOCUMENTATION AGENT,
AND
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT
--------------------------------
CHASE SECURITIES INC.
AS ARRANGER
TABLE OF CONTENTS
PAGE
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Article I
DEFINITIONS . . . . . . . . . . . 1
Article II
THE CREDITS
Section 2.1 Revolving Loans . . . . . . . . . . . . . . . . . . . 28
Section 2.2 Term Loans. . . . . . . . . . . . . . . . . . . . . . 28
Section 2.3 Interest. . . . . . . . . . . . . . . . . . . . . . . 29
Section 2.4 Applicable Margin . . . . . . . . . . . . . . . . . . 30
Section 2.5 Borrowing Notice. . . . . . . . . . . . . . . . . . . 31
Section 2.6 Disbursement of Funds . . . . . . . . . . . . . . . . 31
Section 2.7 Interest Periods, etc.. . . . . . . . . . . . . . . . 32
Section 2.8 Mandatory Principal Payments. . . . . . . . . . . . . 33
Section 2.9 Optional Principal Payments and Reductions
of Commitments . . . . . . . . . . . . . . . . . 37
Section 2.10 Method and Place of Payment . . . . . . . . . . . . . 38
Section 2.11 Fees. . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 2.12 Evidence of Debt. . . . . . . . . . . . . . . . . . . 38
Section 2.13 Minimum Advances. . . . . . . . . . . . . . . . . . . 39
Section 2.14 Eurodollar Rate Conversion and Continuation . . . . . 39
Section 2.15 Lending Offices . . . . . . . . . . . . . . . . . . . 39
Section 2.16 Non-Receipt of Funds by the Agent . . . . . . . . . . 40
Section 2.17 Collateral Security . . . . . . . . . . . . . . . . . 40
Section 2.18 Further Assistance. . . . . . . . . . . . . . . . . . 41
Section 2.19 Use of Proceeds . . . . . . . . . . . . . . . . . . . 42
Section 2.20 Issuance of Letters of Credit, etc. . . . . . . . . . 42
Section 2.21 Letter of Credit Fees . . . . . . . . . . . . . . . . 43
Section 2.22 Obligation of the Company Absolute, etc.. . . . . . . 43
Section 2.23 Cash Collateral . . . . . . . . . . . . . . . . . . . 44
Article III
CHANGE IN CIRCUMSTANCES
Section 3.1 Yield Protection. . . . . . . . . . . . . . . . . . . 45
Section 3.2 Taxes . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 3.3 Availability of Rate Options. . . . . . . . . . . . . 47
Section 3.4 Funding Indemnification . . . . . . . . . . . . . . . 48
Section 3.5 Lender Certificates; Survival of Indemnity. . . . . . 48
Article IV
CONDITIONS PRECEDENT
Section 4.1 Conditions Precedent to All Loans . . . . . . . . . . 48
Article V
REPRESENTATIONS AND WARRANTIES
Section 5.1 Corporate Existence and Standing. . . . . . . . . . . 50
Section 5.2 Authorization and Validity. . . . . . . . . . . . . . 50
Section 5.3 No Conflict; Government Consent, etc. . . . . . . . . 50
Section 5.4 Financial Statements. . . . . . . . . . . . . . . . . 51
Section 5.5 Material Adverse Change . . . . . . . . . . . . . . . 51
Section 5.6 Taxes . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 5.7 Litigation and Contingent Obligations . . . . . . . . 51
Section 5.8 Environmental Matters . . . . . . . . . . . . . . . . 52
Section 5.9 ERISA . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 5.10 Accuracy of Information . . . . . . . . . . . . . . . 53
Section 5.11 Margin Regulations. . . . . . . . . . . . . . . . . . 53
Section 5.12 Materially Burdensome Agreements. . . . . . . . . . . 53
Section 5.13 Compliance with Laws; Franchises and Licenses . . . . 54
Section 5.14 Ownership of Properties . . . . . . . . . . . . . . . 55
Section 5.15 Location of Properties. . . . . . . . . . . . . . . . 55
Section 5.16 Investment Company Act. . . . . . . . . . . . . . . . 55
Section 5.17 Public Utility Holding Company Act. . . . . . . . . . 55
Section 5.18 Capital Structure . . . . . . . . . . . . . . . . . . 55
Section 5.19 Collateral Assignments. . . . . . . . . . . . . . . . 56
Section 5.20 Excluded Subsidiaries, etc. . . . . . . . . . . . . . 56
Section 5.21 Labor Matters . . . . . . . . . . . . . . . . . . . . 56
Section 5.22 Solvency. . . . . . . . . . . . . . . . . . . . . . . 57
Section 5.23 Security Interests and Liens. . . . . . . . . . . . . 57
Section 5.24 Effectiveness Date Transactions . . . . . . . . . . . 57
Section 5.25 Call Letters; Patents, Trademarks, etc. . . . . . . . 57
Section 5.26 No Default. . . . . . . . . . . . . . . . . . . . . . 58
Section 5.27 Brokers' Fees . . . . . . . . . . . . . . . . . . . . 58
Section 5.28 Insurance . . . . . . . . . . . . . . . . . . . . . . 58
Section 5.29 Subsidiary Agreements . . . . . . . . . . . . . . . . 58
Section 5.30 Termination of Certain Arrangements . . . . . . . . . 58
ii
Article VI
COVENANTS
Section 6.1 Financial Reporting . . . . . . . . . . . . . . . . . 59
Section 6.2 Notice of Default, Litigation etc.. . . . . . . . . . 61
Section 6.3 Financial Ratios. . . . . . . . . . . . . . . . . . . 62
Section 6.4 Conduct of Business; Maintenance of Licenses. . . . . 63
Section 6.5 Taxes . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 6.6 Insurance . . . . . . . . . . . . . . . . . . . . . . 63
Section 6.7 Compliance with Laws and FCC Filings in
Connection with Loan Documents . . . . . . . . . 64
Section 6.8 Maintenance of Properties . . . . . . . . . . . . . . 64
Section 6.9 Inspection, etc.. . . . . . . . . . . . . . . . . . . 64
Section 6.10 Restricted Payments . . . . . . . . . . . . . . . . . 64
Section 6.11 Indebtedness. . . . . . . . . . . . . . . . . . . . . 65
Section 6.12 Merger. . . . . . . . . . . . . . . . . . . . . . . . 66
Section 6.13 Sale of Assets. . . . . . . . . . . . . . . . . . . . 67
Section 6.14 Sale and Leaseback. . . . . . . . . . . . . . . . . . 69
Section 6.15 Investments and Acquisitions. . . . . . . . . . . . . 69
Section 6.16 Guaranties. . . . . . . . . . . . . . . . . . . . . . 71
Section 6.17 Liens . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 6.18 Capital Expenditures. . . . . . . . . . . . . . . . . 72
Section 6.19 Rentals . . . . . . . . . . . . . . . . . . . . . . . 73
Section 6.20 Affiliates. . . . . . . . . . . . . . . . . . . . . . 73
Section 6.21 Management Fees . . . . . . . . . . . . . . . . . . . 73
Section 6.22 Interest Rate Protection, etc.. . . . . . . . . . . . 74
Section 6.23 Certain Agreements. . . . . . . . . . . . . . . . . . 74
Section 6.24 Fiscal Year; Fiscal Quarter . . . . . . . . . . . . . 75
Section 6.25 Amendment to Other Agreements . . . . . . . . . . . . 75
Section 6.26 Subsidiary Operations . . . . . . . . . . . . . . . . 75
Section 6.27 FCC Licenses. . . . . . . . . . . . . . . . . . . . . 75
Section 6.28 Deposit Accounts. . . . . . . . . . . . . . . . . . . 75
Section 6.29 Collateral Assignment . . . . . . . . . . . . . . . . 75
Section 6.30 Acquisitions and Guarantees by Parent . . . . . . . . 75
Article VII
DEFAULTS
Section 7.1 Breach of Representation or Warranty. . . . . . . . . 76
Section 7.2 Failure to Make Payments. . . . . . . . . . . . . . . 76
Section 7.3 Breach of Certain Covenants . . . . . . . . . . . . . 76
Section 7.4 Other Defaults. . . . . . . . . . . . . . . . . . . . 76
Section 7.5 Default Under Other Agreements. . . . . . . . . . . . 76
Section 7.6 Bankruptcy, etc.. . . . . . . . . . . . . . . . . . . 76
Section 7.7 Appointment of Receiver . . . . . . . . . . . . . . . 77
Section 7.8 Condemnation, etc.. . . . . . . . . . . . . . . . . . 77
Section 7.9 Judgments . . . . . . . . . . . . . . . . . . . . . . 77
Section 7.10 ERISA . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 7.11 Default Under Loan Documents. . . . . . . . . . . . . 78
Section 7.12 Guarantees. . . . . . . . . . . . . . . . . . . . . . 78
Section 7.13 Collateral Documents. . . . . . . . . . . . . . . . . 78
Section 7.14 Licenses. . . . . . . . . . . . . . . . . . . . . . . 78
Section 7.15 Liens . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 7.16 Change of Control . . . . . . . . . . . . . . . . . . 79
Section 7.17 Prepayment or Redemption with respect to Certain
Indebtedness . . . . . . . . . . . . . . . . . . 79
Section 7.18 Intentionally Deleted . . . . . . . . . . . . . . . . 79
iii
Article VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
Section 8.1 Acceleration. . . . . . . . . . . . . . . . . . . . . 80
Section 8.2 Amendments. . . . . . . . . . . . . . . . . . . . . . 80
Section 8.3 Preservation of Rights. . . . . . . . . . . . . . . . 82
Article IX
GENERAL PROVISIONS
Section 9.1 Survival of Representations . . . . . . . . . . . . . 82
Section 9.2 Governmental Regulation . . . . . . . . . . . . . . . 82
Section 9.3 Taxes . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 9.4 Headings. . . . . . . . . . . . . . . . . . . . . . . 83
Section 9.5 Entire Agreement. . . . . . . . . . . . . . . . . . . 83
Section 9.6 Several Obligations . . . . . . . . . . . . . . . . . 83
Section 9.7 Expenses; Indemnification . . . . . . . . . . . . . . 83
Section 9.8 Numbers of Documents. . . . . . . . . . . . . . . . . 84
Section 9.9 Accounting. . . . . . . . . . . . . . . . . . . . . . 84
Section 9.10 Severability of Provisions. . . . . . . . . . . . . . 84
Section 9.11 Non-liability of Lender . . . . . . . . . . . . . . . 84
Section 9.12 CHOICE OF LAW . . . . . . . . . . . . . . . . . . . . 84
Section 9.13 CONSENT TO JURISDICTION . . . . . . . . . . . . . . . 84
Section 9.14 Counterparts. . . . . . . . . . . . . . . . . . . . . 85
Section 9.15 Limitation of Rights. . . . . . . . . . . . . . . . . 85
Section 9.16 Limitation of Liability . . . . . . . . . . . . . . . 85
Section 9.17 Designation of Obligations as Senior Debt . . . . . . 85
Article X
THE AGENTS
Section 10.1 Appointment . . . . . . . . . . . . . . . . . . . . . 86
Section 10.2 Powers. . . . . . . . . . . . . . . . . . . . . . . . 86
Section 10.3 General Immunity. . . . . . . . . . . . . . . . . . . 86
Section 10.4 No Responsibility for Loans, Recitals, etc. . . . . . 86
Section 10.5 Action on Instructions of Lenders . . . . . . . . . . 86
Section 10.6 Employment of Agents and Counsel. . . . . . . . . . . 86
Section 10.7 Reliance on Documents; Counsel. . . . . . . . . . . . 87
Section 10.8 Agent's Reimbursement and Indemnification . . . . . . 87
Section 10.9 Rights as a Lender. . . . . . . . . . . . . . . . . . 87
Section 10.10 Lender Decisions. . . . . . . . . . . . . . . . . . . 87
Section 10.11 Successor Agent . . . . . . . . . . . . . . . . . . . 87
Section 10.12 Collateral Releases . . . . . . . . . . . . . . . . . 88
Article XI
SETOFF; RATABLE PAYMENTS
Section 11.1 Setoff. . . . . . . . . . . . . . . . . . . . . . . . 88
Section 11.2 Ratable Payments. . . . . . . . . . . . . . . . . . . 88
Article XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
Section 12.1 Successors and Assigns. . . . . . . . . . . . . . . . 89
Section 12.2 Participations. . . . . . . . . . . . . . . . . . . . 89
iv
Section 12.3 Assignments . . . . . . . . . . . . . . . . . . . . . 90
Section 12.4 Dissemination of Information. . . . . . . . . . . . . 91
Section 12.5 Confidentiality . . . . . . . . . . . . . . . . . . . 91
Article XIII
NOTICES
Section 13.1 Giving Notice . . . . . . . . . . . . . . . . . . . . 91
Section 13.2 Change of Address . . . . . . . . . . . . . . . . . . 92
v
Article XIV
WAIVER OF JURY TRIAL . . . . . . . . . 92
EXHIBITS AND SCHEDULES TO CREDIT AGREEMENT
EXHIBITS
Exhibit A - Intentionally Deleted
Exhibit B-1 - Form of Collateral Assignment of the Mexican Sales
Agency Agreement
Exhibit B-2 - Form of Collateral Assignment of the Joint Sales
Agreements/ Local Marketing Agreements
Exhibit C - Intentionally Deleted
Exhibit D-1 - Form of Company Pledge Agreement
Exhibit D-2 - Form of Subsidiary Primary Pledge Agreement
Exhibit D-3 - Form of Subsidiary Secondary Pledge Agreement
Exhibit D-4 - Form of Subsidiary First Amended and Restated
Secondary Pledge Agreement
Exhibit D-5 - Form of Parent Pledge Agreement
Exhibit E-1 - Intentionally Deleted
Exhibit E-2 - Intentionally Deleted
Exhibit F - Form of Compliance Certificate
Exhibit G-1 - Form of Intercompany Acquisition Demand Note
Exhibit G-2 - Form of First Amended and Restated Intercompany
Acquisition Demand Note
Exhibit H-1 - Form of Intercompany Demand Note
Exhibit H-2 - Form of First Amended and Restated Intercompany Demand
Note
Exhibit H-3 - Form of Third Consolidated Amended and Restated
Intercompany Demand Note
Exhibit I - Intentionally Deleted
Exhibit J-1 - Form of Subsidiary Guaranty
Exhibit J-2 - Form of Parent Guaranty
Exhibit K - Intentionally Deleted
Exhibit L - Accountant's Letter
Exhibit M - Form of Assignment and Acceptance Agreement
Exhibit N-1 - Intentionally Deleted
Exhibit N-2 - Intentionally Deleted
SCHEDULES
Schedule I - Commitments
Schedule 1.2 Intentionally Deleted
Schedule 5.3 - No Conflict, Government Consent
Schedule 5.7 - Litigation and Contingent
Obligations
Schedule 5.8(a) - Environmental Claims
Schedule 5.8(b) - Presence of Material of
Environmental Concern
Schedule 5.9 - ERISA Matters
Schedule 5.12 - Materially Burdensome Agreements
Schedule 5.13(b)(i) Intentionally Deleted
Schedule 5.13(b)(ii) Intentionally Deleted
Schedule 5.13(c) Intentionally Deleted
Schedule 5.14 Intentionally Deleted
Schedule 5.15(a) Intentionally Deleted
Schedule 5.15(b) Intentionally Deleted
Schedule 5.18(a) - Capital Stock
Schedule 5-18(b)(i) Intentionally Deleted
Schedule 5.18(b) Debt
Schedule 5-18(b)(iii) Intentionally Deleted
Schedule 5.21 - Labor Matters
Schedule 5.23 - Interests of Third Parties
Schedule 5.25(i) Intentionally Deleted
Schedule 5.25(ii) Intentionally Deleted
Schedule 5.27 Intentionally Deleted
Schedule 5.28 Intentionally Deleted
Schedule 6.11(e) - Existing Indebtedness
Schedule 6.13 - Permitted Sale of Assets
vi
Schedule 6.15(f) - Permitted Investments
Schedule 6.17(h) Intentionally Deleted
Schedule 6.20 - Permitted Affiliate Transactions
vii
This Credit Agreement, dated as of June 12, 1996, as amended and restated
as of February 14, 1997, as further amended and restated as of September 16,
1997, is among Jacor Communications Company, a Florida corporation, the Lenders
(as defined below), The Chase Manhattan Bank, as Administrative Agent, Banque
Paribas, as Documentation Agent, Bank of America National Trust and Savings
Association (as successor by merger to Bank of America Illinois), as
Syndication Agent, the co-agents party hereto (each a "Co-Agent" and
collectively, the "Co-Agents) and the lead managers party hereto (each a "Lead
Manager" and collectively, the "Lead Managers"). The parties hereto agree as
follows:
Article I
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of transactions
involving related or affiliated sellers, consummated after the date of this
Agreement, by which the Company or any of its Subsidiaries (or the Parent, on
behalf of the Company or any of its Subsidiaries, as contemplated by
Section 6.30) (i) acquires any going business or assets of any Person (other
than assets not constituting a business or business unit or a Radio Station or
Television Station acquired by the Company or any of its Subsidiaries in the
ordinary course of its business), whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires at least 50% in number of
votes (in one transaction or as the most recent transaction in a series of
transactions), of the securities or other ownership interest in any Person,
other than, with respect to the Company, a Subsidiary of the Company existing on
the date hereof.
"Acquisition Certificate" means a certificate delivered pursuant to clause
(b) of the definition of "Permitted Acquisition" or clause (l) of Section 6.1,
signed by an Authorized Officer of the Company in the form of a compliance
certificate containing Acquisition Pro Formas with respect to one or more
Acquisitions, as the case may be, and certifying (i) as to the maximum aggregate
Amount of Acquisitions permitted to have been made after the Effectiveness Date
under clause (c) of the definition of "Permitted Acquisition" and the aggregate
Amount of all such Permitted Acquisitions (determined as provided in clause
(iii) of the first paragraph of the definition of "Permitted Acquisition")
consummated after the Effectiveness Date, including, if applicable, the Amount
of any such Acquisition or Acquisitions, as the case may be, (ii) as to the
accuracy and completeness of the Acquisition Pro Formas attached to such
certificate, (iii) as to the accuracy after giving effect to the transactions
contemplated by such Acquisition Pro Formas of the matters set forth in clause
(g) and, in the event of an Acquisition of a business engaged primarily in
television broadcasting (other than a Television Swap Acquisition), clause (f),
of the definition of "Permitted Acquisition", and the calculations in support of
such clause (g) and, if applicable, such clause (f) and (iv) that on the date of
each such Acquisition contemplated by the Acquisition Certificate, both before
and after giving effect to each such Acquisition, all the representations and
warranties set forth in the Loan Documents shall be true and correct in all
material respects (except those representations and warranties that speak only
as of a different date), and no Default or Unmatured Default shall exist.
"Acquisition Pro Formas" means, in connection with any Acquisition for
which a definitive agreement has been executed or all such Acquisitions
occurring during a fiscal quarter, as the case may be, by the Company or any of
its Subsidiaries of a business engaged primarily in radio or television
broadcasting or any materially related business, a consolidated balance sheet,
profit and loss statement and cash flow statement of the Company and its
Subsidiaries as of the last day of and for the most recent twelve-month period
for which financial statements have been delivered pursuant to Section 6.1, each
in reasonable detail and prepared in accordance with Agreement Accounting
Principles consistently applied on a combined PRO FORMA basis after giving
effect to, as applicable, (i) each proposed Acquisition for which a definitive
agreement has been executed at the time of delivery of the applicable
Acquisition Pro Formas and any related increase in Total Debt or (ii) in the
case of an Acquisition or a series of related Acquisitions in an Amount in
excess of $100,000,000, solely the proposed Acquisition(s) and any related
increase in Total Debt, in the case of either (i) or (ii) above as if each
applicable Acquisition had been consummated, and all applicable Indebtedness
issued or incurred, as of the first day of such period.
"Administrative Agent" means The Chase Manhattan Bank in its capacity as
administrative agent for the Lenders pursuant to Article X, and not in its
individual capacity as a Lender, and any successor Administrative Agent
appointed pursuant to Article X.
1
"Advance" means a borrowing hereunder consisting of the aggregate amount of
the several Loans made by the Lenders to the Company on the same Borrowing Date,
at the same Rate Option and, in the case of Eurodollar Rate borrowings
hereunder, for the same Interest Period.
"Affiliate" means any Person directly or indirectly controlling, controlled
by or under direct or indirect common control with the Person specified, whether
by contract, understanding or otherwise. A Person shall be deemed to control
another Person if the controlling Person owns 10% or more of any class of voting
securities of the controlled Person or possesses, directly or indirectly, the
power to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of stock, by contract or otherwise.
"Agents" means the collective reference to the Administrative Agent, the
Documentation Agent and the Syndication Agent.
"Aggregate Revolving Loan Commitment" means, at any time of determination,
the aggregate of the Revolving Loan Commitments of each of the Lenders at such
time.
"Agreement" means this Credit Agreement, as it may be amended, modified,
supplemented or restated and in effect from time to time.
"Agreement Accounting Principles" means United States generally accepted
principles of accounting as in effect on, and applied in a manner consistent
with, those used in preparing the audited December 31, 1996 consolidated
financial statements of the Parent and its Subsidiaries.
"Amendments" is defined in Section 8.2.
"Amount" means, with respect to any Acquisition, all consideration paid in
respect thereof, including consideration in the form of cash, property (as
valued at the time of such Acquisition) or the assumption of Indebtedness or
other obligations.
"Annual Management Fee" is defined in Section 6.21(c).
"Applicable Margin" means the respective percentages for each Rate Option
determined in accordance with the terms of Section 2.4.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Officer" means, with respect to any Person, any of the Chairman
of the Board, the President, the Treasurer, the Chief Financial Officer or the
Vice-President of Finance of such Person, acting singly.
"Bank of America" means Bank of America National Trust and Savings
Association (as successor by merger to Bank of America Illinois) in its
individual capacity, and its successors and assigns.
"Banque Paribas" means Banque Paribas in its individual capacity, and its
successors and assigns.
"Base Rate" means a rate per annum at any time equal to the greater of (i)
the base rate or prime rate of interest announced by the Administrative Agent
from time to time, changing when and as said base rate or prime rate changes and
(ii) the Federal Funds Rate plus 1/2 of 1% per annum.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.5.
"Broadcast Cash Flow" means, with respect to the Company and its
consolidated Subsidiaries, for any period of calculation the remainder of (x)
the revenue for such period which is classified as net revenue in the profit and
loss statements delivered pursuant to Sections 6.1(a) and 6.1(b) minus (y) those
expenses which are classified as operating expenses (other than interest
expense, depreciation, amortization, corporate general and administrative
expense and noncash extraordinary items) for such period in the profit and loss
statements delivered pursuant to Sections 6.1(a) and 6.1(b).
2
"Business Day" means (i) with respect to any borrowing, payment or
selection in respect of any Eurodollar Loan, a day other than Saturday or Sunday
on which banks are open for business in Chicago and New York and on which
dealings in U.S. Dollars are carried on in the interbank eurodollar market and
(ii) for all other purposes, a day other than Saturday or Sunday on which banks
are open for business in Chicago and New York.
"Capital Expenditures" means, for any period, the sum of expenditures
(whether paid in cash or accrued as a liability, including the portion of
Capitalized Leases that is capitalized on the consolidated balance sheet of the
Company and its Subsidiaries during such period) by the Company and its
Subsidiaries during such period that, in conformity with Agreement Accounting
Principles, are included in "capital expenditures", "additions to property,
plant or equipment" or comparable items in the consolidated financial statements
of the Company and its Subsidiaries.
"Capital Stock" means, with respect to any corporation, any and all shares,
interests, rights to purchase (other than convertible or exchangeable
Indebtedness), warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that corporation.
"Capitalized Lease" of a Person means any lease of property by such Person
as lessee which should be capitalized on a balance sheet of such Person prepared
in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which should be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Collateralize" means the pledge and deposit with or delivery to the
Administrative Agent, for the benefit of the Agents, the Issuing Banks and the
Lenders, cash or deposit account balances pursuant to documentation in form and
substance reasonably satisfactory to the Administrative Agent and the Issuing
Banks; such documentation shall irrevocably authorize the Administrative Agent
to apply such cash collateral to reimbursement of the Issuing Banks for draws
under Letters of Credit as and when occurring, and in all cases to payment of
other Obligations as and when due. Cash collateral shall be maintained in
blocked deposit accounts at the Administrative Agent or a Lender.
"Cash Equivalents" means (i) securities issued directly or fully guaranteed
or insured by the United States of America or any agency or instrumentality
thereof (provided that the full faith and credit of the United States of America
is pledged in support thereof) or (ii) time deposits and certificates of deposit
with, and commercial paper issued by the parent corporation of, any domestic
commercial bank of recognized standing having capital and surplus in excess of
$500.0 million and commercial paper issued by others rated at least A-2 or the
equivalent thereof by Standard & Poor's Ratings Group or at least P-2 or the
equivalent thereof by Xxxxx'x Investors Service, Inc. and in each case maturing
within one year after the date of acquisition.
"Cash Interest Expense" means, for any fiscal period of the Company, the
interest expense (including, without limitation, interest expense attributable
to Capitalized Leases in accordance with Agreement Accounting Principles) of the
Company and its Subsidiaries for such period, PLUS all expenses incurred by the
Company or its Subsidiaries in connection with the payment of fees under any
agreement relating to indebtedness during such period (other than fees paid or
payable during such period pursuant to Section 2.11(a) or (b)), MINUS, to the
extent included in the foregoing, any such interest or fee expense not paid or
payable in cash during such period, MINUS interest income earned and received by
the Company or its Subsidiaries during such period, PLUS any such interest or
fee expense accrued but not paid by the Company or its Subsidiaries during any
previous period and paid during such period, in each case determined on a
consolidated basis in accordance with Agreement Accounting Principles.
"Collateral" means the collective reference to the "Collateral" under and
as defined in each of the Collateral Documents.
"Collateral Assignment" means, with respect to each Joint Sales Agreement
and Local Marketing Agreement, subject to Section 6.29, an assignment agreement,
substantially in the form of Exhibit B-2 hereto, with such changes thereto as
the Administrative Agent may agree to, providing for the assignment by the
Company or a Subsidiary of the Company, as the case may be, of all of its right,
title and interest in such Joint Sales Agreement or Local Marketing Agreement,
in favor of the Administrative Agent for the ratable benefit of the Lenders,
duly completed, executed and delivered to the Administrative Agent by the
Company and, duly acknowledged by the other party (or parties) to such
3
Joint Sales Agreement or Local Marketing Agreement, as the same may be amended,
modified, supplemented or restated and in effect from time to time.
"Collateral Documents" means, collectively, the Parent Guaranty, the Parent
Pledge Agreement, the Subsidiary Guaranty, the Company Pledge Agreement, the
Subsidiary Pledge Agreements, the Mexican Assignment Agreement, the Collateral
Assignments, each other document or agreement executed and delivered pursuant to
Section 2.17 and all ancillary documentation and agreements required thereunder
or executed and/or delivered by the Parent, the Company or any of its
Subsidiaries to the Administrative Agent or any Lender in connection therewith.
"Commitment Fee Rate" means, at any time of determination, a rate per annum
equal to (i) if the Leverage Ratio is greater than or equal to 5.5 to 1.0 at
such time, 0.375% and (ii) if the Leverage Ratio is less than 5.5 to 1.0 at such
time, 0.250%. The Commitment Fee Rate shall be subject to adjustment (upwards or
downwards, as appropriate) based on the Leverage Ratio at the end of each of the
first three fiscal quarters and the fiscal year of the Company. For purposes of
determining the Commitment Fee Rate, the Leverage Ratio shall be determined
(i) in the case of determinations made with respect to the first three fiscal
quarters of the Company's fiscal year, by reference to the quarterly financial
statements of such fiscal quarter and the Compliance Certificate for such
fiscal quarter delivered pursuant to Sections 6.1(b) and (d) and (ii) in the
case of determinations made with respect to the last fiscal quarter of the
Company's fiscal year, by reference to the financial statements and Compliance
Certificate delivered by the Company pursuant to Sections 6.1(a) and (d). The
adjustment, if any, to the Commitment Fee Rate shall be effective commencing on
the Business Day of the delivery of such quarterly or annual financial
statements and Compliance Certificate and shall be effective only for the period
subsequent to such date. In the event that the Company shall at any time fail to
furnish to the Lenders the financial statements and Compliance Certificate
required to be delivered pursuant to Section 6.1(a), (b) or (d), the maximum
Commitment Fee Rate shall apply until such time as such financial statements and
Compliance Certificate are so delivered to the Administrative Agent.
"Commitments" means, for each Lender, its Revolving Loan Commitment and its
Term Loan Commitment.
"Communications Act" means the Communications Act of 1934, as amended.
"Company" means Jacor Communications Company and its successors and
assigns.
"Company Pledge Agreement" means the pledge agreement in substantially the
form of Exhibit D-1 hereto, as duly completed, executed and delivered to the
Administrative Agent by the Company, as the same may be amended, modified,
supplemented or restated and in effect from time to time.
"Compliance Certificate" means a compliance certificate in substantially
the form of Exhibit F hereto, with appropriate insertions, signed by an
Authorized Officer of the Company, showing the calculations necessary to
determine compliance with this Agreement and stating that no Default or
Unmatured Default exists, or if any Default or Unmatured Default exists,
describing the nature thereof and any action the Company is taking or proposes
to take with respect thereto.
"Conversion/Continuation Notice" is defined in Section 2.14(b).
"Current Assets" means, at any time, the current assets (other than
deferred tax, cash and cash equivalents of the Company and its Subsidiaries at
such time), determined on a consolidated basis in accordance with Agreement
Accounting Principles.
"Current Fiscal Year" is defined in Section 6.10.
"Current Liabilities" means, at any time, the current liabilities (other
than the current portion of all long-term Indebtedness of the Company and its
Subsidiaries at such time and other than deferred tax items), determined on a
consolidated basis in accordance with Agreement Accounting Principles.
"Debt Cash Proceeds" means all cash proceeds received by the Company or any
of its Subsidiaries from the incurrence of, or the issuance of any instruments
relating to, any Indebtedness (other than (i) the Senior Subordinated Debt and
(ii) Indebtedness borrowed by the Company under this Agreement), in each case
net of underwriting discounts, commissions and other reasonable fees, costs and
expenses associated therewith.
4
"Default" means the occurrence of an event described in Article VII.
"Default Rate" is defined in Section 2.3(c).
"Disposition(s)" is defined in Section 6.13.
"Disqualified Capital Stock" means (a) except as set forth in (b), with
respect to any Person, any Equity Interest of such Person that, by its terms or
by the terms of any security into which it is convertible, exercisable or
exchangeable, is, or upon the happening of any event or the passage of time
would be, required to be redeemed or repurchased (including at the option of the
holder thereof) by such Person or any of its Subsidiaries, in whole or in part,
on or prior to the final maturity of the Revolving Loans and the Term Loans, and
(b) with respect to any Subsidiary of any Person (including with respect to any
Subsidiary of the Company), any Equity Interest other than any common equity
with no preference, privileges, or redemption or repayment provisions.
"Documentation Agent" means Banque Paribas in its capacity as documentation
agent for the Lenders pursuant to Article X, and not in its individual capacity
as a Lender, and any successor Documentation Agent appointed pursuant to
Article X.
"Effectiveness Agreement" means the Effectiveness Agreement dated as of
September 16, 1997, among the Company, the Lenders, the Co-Agents, the Lead
Managers and the Agents.
"Effectiveness Date" is defined in the Effectiveness Agreement.
"Environmental Claim" means any claim, action, cause of action,
investigation or notice (written or oral) by any Person alleging potential
liability (including, without limitation, potential liability for investigatory
costs, cleanup costs, governmental response costs, natural resources damages,
property damages, personal injuries, or penalties) arising out of, based on or
resulting from (a) the presence, threatened release or release into the
environment, of any Material of Environmental Concern at any location, whether
or not owned, leased or operated by the Company or any of its Subsidiaries or
(b) circumstances forming the basis of any violation, or alleged violation, of
any Environmental Law.
"Environmental Laws" means all federal, state, local and foreign laws and
regulations relating to pollution or protection of human health or the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata), including, without limitation,
laws and regulations relating to emissions, discharges, releases or threatened
releases of Materials of Environmental Concern, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Materials of Environmental Concern.
"Equity Interest" of any Person means any share, interest, participation or
other equivalent (however designated) in such Person's equity, and shall in any
event include any Capital Stock issued by, or partnership interest in, such
Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means, with respect to the Company or any of its
Subsidiaries, any Person (or any trade or business, whether or not incorporated)
that is under common control with the Company or such Subsidiary within the
meaning of Section 414 of the Internal Revenue Code.
"Eurodollar Advance" means an Advance which bears interest at the
Eurodollar Rate for a particular Interest Period.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the rate determined by the Administrative Agent to be
the rate at which deposits in U.S. dollars are offered by the Administrative
Agent to first-class banks in the interbank Eurodollar market at approximately
11 a.m. (New York time) two (2) Business Days prior to the first day of such
Interest Period, in the approximate amount of the relevant Eurodollar Loan
requested hereunder and having a maturity approximately equal to such Interest
Period.
"Eurodollar Loan" means a Loan, or portion thereof, which bears Interest at
the Eurodollar Rate for a particular Interest Period.
5
"Eurodollar Rate" means, with respect to a Eurodollar Loan or Eurodollar
Advance for the relevant Interest Period, the sum of (i) the quotient of (a) the
Eurodollar Base Rate applicable to that Interest Period, divided by (b) one
minus the Reserve Requirement (expressed as a decimal) applicable to that
Interest Period, plus (ii) the Applicable Margin. The Eurodollar Rate shall be
rounded, if necessary, to the next higher 1/100 of 1%.
"Excess Cash Flow" means, for the period commencing January 1, 1997 and
ending December 31, 1997 and thereafter for any fiscal year of the Company, a
positive amount, if any, equal to (i) Operating Cash Flow, PLUS (or minus) (ii)
decreases (or increases) in Working Capital from the first day of such period to
the last day of such period MINUS (iii) the sum of (without duplication)
(A) scheduled principal payments made pursuant to scheduled commitment
reductions of the Revolving Loan Commitments with respect to the Revolving Loans
during such period, scheduled amortization during such period of the principal
portion of the Term Loans and other Indebtedness of the Company and its
Subsidiaries, (B) Cash Interest Expense and any other fees and expenses paid in
cash under the Loan Documents, (C) income and franchise taxes paid or payable in
cash during such period (other than taxes on amounts recognized in connection
with a sale or other Disposition made by the Company or any of its
Subsidiaries), (D) Capital Expenditures to the extent paid in cash, (E) payments
made to the Parent which are applied by the Parent to Permitted Stock
Repurchases to the extent permitted by Section 6.10(i) and (F) Restricted
Payments paid in cash (to the extent made pursuant to the terms of
Section 6.10(iv)), all calculated for such fiscal year for the Company and its
Subsidiaries on a consolidated basis in accordance with Agreement Accounting
Principles consistently applied.
"Excluded Subsidiary" means each of Nobro, S.A. de C.V., FMI Pennsylvania,
Inc., GACC-N26LB, Inc., GACC-340, Inc., Settlement Development, Inc., Xxxx-TCI
Satellite Services, Inc., Great American Television Productions, Inc., Cine
Films Inc., Turp Co., Cine Guarantors, Inc., Cine Guarantors II, Inc., Cine
Guarantors II, Ltd., Cine Movil S.A.Del O.V., Cine Mobile Systems Int'l N.V.,
Great American Merchandising Group, Inc., Location Productions, Inc., Location
Productions II, Inc., Cine Artists Pictures Corp., Aces High Picture Corp., To
The Devil A Daughter Picture Corp., Echoes of Summer Co., Inc., Dreamer
Productions, Inc., The Xx Xxxxxxx Company Agency, Inc., River Niger Picture
Corp., VTTV Productions, Noble Broadcast Center, Inc., WHOK, Inc. and Sports
Radio Broadcasting, Inc.
"Fair Market Value" and "fair market value" means, with respect to any
assets or property, the amount at which such assets or property would change
hands between a willing buyer and a willing seller, within a commercially
reasonable time, each having reasonable knowledge of the relevant facts, neither
being under a compulsion to sell or buy, as such amount is determined by (i) the
board of directors of the Company acting in good faith or (ii) an appraisal or
valuation firm of national or regional standing selected by the Company, with
experience in the appraisal or valuation of properties or assets of the type for
which Fair Market Value is being determined.
"FCC" means the Federal Communications Commission or any other regulatory
body which succeeds to the functions of the Federal Communications Commission.
"FCC Broadcast Station License" means a broadcast station license or series
of licenses issued by the FCC for the dissemination of radio or television
communications intended to be received by the public.
"Federal Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as amended from time to time, and any successor statute or
statutes.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day, provided that (i) if the day for which such rate is to be determined is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (ii) if such rate is not so published for any day,
the Federal Funds Rate for such day shall be the average rate charged to The
Chase Manhattan Bank and Bank of America on such day on such transactions as
determined by the Administrative Agent in its discretion.
"Fee Letter" means the fee letter entered into between the Parent and the
Company on the one hand, and the Administrative Agent, on the other hand, dated
as of August 4, 1997.
6
"Fixed Charges" means, for any fiscal period of the Company, an amount
equal to the sum of, without duplication, (i) Cash Interest Expense for such
period, PLUS (ii) principal payments due pursuant to (A) scheduled commitment
reductions of the Revolving Loan Commitments during such period on the Revolving
Loans and (B) scheduled amortization during such period of the principal portion
of the Term Loans and (C) scheduled amortization during such period of the
principal portion of other Indebtedness of the Company and its Subsidiaries,
PLUS (iii) the principal component of all rents accrued during such period in
connection with Capitalized Leases under which the Company or any of its
Subsidiaries is the lessee, PLUS (iv) income and franchise taxes paid or payable
in cash during such period (other than taxes on amounts recognized in connection
with Dispositions made by the Company or any of its subsidiaries) PLUS (v) all
cash Capital Expenditures made or required to be made during such period.
"Floating Rate" means a rate per annum equal to (i) the Base Rate plus (ii)
the Applicable Margin, in each case changing when and as the Base Rate and/or
the Applicable Margin changes.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan, or portion thereof, which bears interest
at the Floating Rate.
"FTC" means the Federal Trade Commission or any other regulatory body which
succeeds to the functions of the Federal Trade Commission.
"Generally Accepted Accounting Principles" means United States generally
accepted principles of accounting as in effect as of the date of determination.
"Governmental Authority" means any nation, state, sovereign, or government,
any federal, regional, state, local or political subdivision and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guaranty" of a Person means any agreement by which such Person assumes,
guarantees, endorses, contingently agrees to purchase or provide funds for the
payment of, or otherwise becomes liable upon, any Indebtedness, lease, dividend
or other economic obligation of any other Person in any manner, whether directly
or indirectly and whether such obligation is contingent or absolute, or agrees
to maintain the net worth or working capital or other financial condition of any
other Person or otherwise assures any creditor of such other Person against
loss, including, without limitation, any comfort letter that constitutes an
economic obligation of such Person, operating agreement or take-or-pay contract
to such effect, all obligations of such Person for the liabilities or
obligations of another under any Joint Sales Agreement, any Local Marketing
Agreement and the Mexican Sales Agency Agreement and the actual or contingent
liability of such Person in connection with any application for or the issuance
of any letter of credit, but shall exclude the endorsement of instruments for
deposit or collection in the ordinary course of business.
"Hedged Amount" is defined in Section 6.22(a).
"Indebtedness" of a Person means, without duplication, such Person's
(i) liabilities and obligations for borrowed money, (ii) liabilities and
obligations representing the deferred purchase price of property or services
other than accounts payable arising in the ordinary course of such Person's
business payable on terms customary in the trade, (iii) liabilities and payment
obligations (contingent or otherwise), whether or not assumed, which are secured
by Liens or payable out of the proceeds or production from property now or
hereafter owned or acquired by such Person, (iv) liabilities and obligations
which are evidenced by bonds, notes, debentures, banker's acceptances or similar
instruments issued or accepted by banks, or other instruments evidencing
indebtedness, (v) liabilities and obligations relating to Capitalized Lease
Obligations, (vi) payment obligations (contingent or otherwise) arising under
Non-Compete Agreements, (vii) payment obligations arising under agreements to
repurchase securities (but only when such obligations become due or during any
period during which the security holder has the right to cause such payment to
become due), (viii) all liabilities and obligations of such Person in respect of
letters of credit and, without duplication, all unreimbursed amounts drawn
thereunder, (ix) all payment obligations of such Person under any terminated
agreements with respect to Interest Swap and Hedging Obligations, (x) without
duplication, any Guaranty of any of the foregoing obligations described in the
foregoing clauses (i) through (ix) and all liabilities and obligations of others
described in the foregoing clauses (i) through (ix) that are otherwise such
Person's legal liability or which are secured by any assets or property of such
Person and all obligations to purchase, redeem or acquire any Equity Interests
and (xi) all Disqualified Capital Stock of such Person (valued at the greater of
its voluntary or involuntary maximum fixed repurchase price plus accrued and
unpaid dividends). For purposes hereof,
7
the "maximum fixed repurchase price" of any Disqualified Capital Stock which
does not have a fixed repurchase price shall be calculated in accordance with
the terms of such Disqualified Capital Stock as if such Disqualified Capital
Stock were purchased on any date on which Indebtedness shall be required to be
determined pursuant to this Agreement, and if such price is based upon, or
measured by, the Fair Market Value of such Disqualified Capital Stock, such Fair
Market Value shall be determined in good faith by the board of directors of the
issuer (or managing general partner of the issuer) of such Disqualified Capital
Stock.
"Intercompany Acquisition Loan" means a loan made by the Company to any of
its Subsidiaries, which loan is made by the Company for the purpose of funding
(and the proceeds thereof have been applied to fund) a Permitted Acquisition by
such Subsidiary.
"Intercompany Acquisition Note" means one or more intercompany acquisition
demand notes, a first amended and restated intercompany acquisition demand note
and a second amended and restated intercompany demand acquisition note, each in
substantially the form of Exhibits G-1 and G-2 hereto, respectively, and duly
completed, executed and delivered by any Subsidiary of the Company to evidence
Intercompany Acquisition Loans made to such Subsidiary, as the same may be
amended, modified, supplemented, restated or replaced from time to time in
conformity with the terms of this Agreement and in effect from time to time.
"Intercompany Demand Note" means one or more intercompany demand notes, a
first amended and restated intercompany demand note, a second consolidated
amended and restated intercompany demand note and a third consolidated amended
and restated intercompany demand note, each in substantially the form of Exhibit
X-0, Xxxxxxx X-0 and Exhibit H-3 hereto, respectively, and duly completed,
executed and delivered by each of the Subsidiaries of the Company (other than
the Excluded Subsidiaries), as the same may be amended, modified, supplemented,
restated or replaced from time to time in conformity with the terms of this
Agreement and in effect from time to time.
"Interest Period" is defined in Section 2.7(a).
"Interest Rate Hedge Provider" means any Lender (or any Affiliate thereof)
that provides an interest rate protection agreement to the Company pursuant to
Section 6.22 and that executes and delivers an agency agreement, in form and
substance satisfactory to the Administrative Agent.
"Interest Swap and Hedging Obligations" means any obligation of any Person
pursuant to any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate exchange agreement, currency
exchange agreement or any other agreement or arrangement designed to protect
against fluctuations in interest rates or currency values, including, without
limitation, any arrangement whereby, directly or indirectly, such Person is
entitled to receive from time to time periodic payments calculated by applying
either a fixed or floating rate of interest on a stated notional amount in
exchange for periodic payments made by such Person calculated by applying a
fixed or floating rate of interest on the same notional amount.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
from time to time, and any successor statute.
"Investment" of a Person means any loan, advance, extension of credit
(including the purchase of property from another Person subject to an
understanding or agreement, contingent or otherwise, to resell such property to
such other Person) or any commitment to make any such advance, loan or extension
of credit (excluding accounts receivable arising in the ordinary course of
business on terms customary in the trade), deposit account or contribution of
capital by such Person to any other Person or any investment in, or purchase or
other acquisition (whether by purchase, merger, consolidation or otherwise) of,
the stock, notes, bonds, debentures or other securities, including options and
warrants, of, any partnership interest in, or any other ownership interest in,
or any agreement to make any such acquisition of, any other Person made by such
Person (whether for cash, property, services, securities or otherwise).
"Issue" means, with respect to any Letter of Credit, to issue or to extend
the expiry of, or to renew or increase the amount of, such Letter of Credit; and
the terms "Issued," "Issuing" and "Issuance" have corresponding meanings.
"Issuing Bank" means any of The Chase Manhattan Bank, Banque Paribas or
Bank of America in its capacity as issuer of one or more Letters of Credit
hereunder.
8
"Joint Sales Agreement" means an agreement between (or assigned to) the
Company or one of its Subsidiaries and the holder of an FCC Broadcast Station
License (which holder is not the Parent, the Company, any of its Subsidiaries or
an Affiliate of any of them) pursuant to which the Company or such Subsidiary
(i) arranges to purchase advertising time for a fee from the radio station owned
by such holder of such FCC Broadcast Station License, with such advertising time
to be resold by the Company or any such Subsidiary, (ii) provides or furnishes
such resold advertising time to be broadcast by such radio station and (iii)
does not supply programming material to such radio station.
"L/C Amendment Application" means an application form for amendment of
outstanding Letters of Credit as shall at any time be in use at the applicable
Issuing Bank, as such Issuing Bank shall request.
"L/C Application" means an application form for issuance of standby letters
of credit, as appropriate, as shall at any time be in use at the applicable
Issuing Bank, as such Issuing Bank shall request.
"L/C Obligations" means at any time the sum of (a) the aggregate undrawn
amount of all Letters of Credit then outstanding, PLUS (b) the aggregate amount
of all unreimbursed drawings under all Letters of Credit.
"L/C Related Documents" means the Letters of Credit, the L/C Applications,
the L/C Amendment Applications and any other document relating to any Letter of
Credit, including any of the applicable Issuing Bank's standard form documents
for standby letter of credit issuances, as appropriate.
"Lenders" means the banks and other Persons, other than the Company, the
Administrative Agent (in its capacity as Administrative Agent), the
Documentation Agent (in its capacity as Documentation Agent) and the Syndication
Agent (in its capacity as Syndication Agent), listed on the signature pages of
this Agreement and such of their respective permitted successors and assigns as
may be parties to any Notice of Assignment executed pursuant to Section 12.3.
"Lending Office" means any office, branch, subsidiary or affiliate of any
Lender or the Administrative Agent.
"Letter of Credit" means each standby letter of credit Issued by an Issuing
Bank pursuant to Section 2.20.
"Leverage Ratio" means, at any time of determination, the ratio of (i)
Total Debt as at the date of such determination to (ii) Operating Cash Flow for
the four consecutive fiscal quarters then most recently ended (unless otherwise
specified herein), all calculated for the Company and its Subsidiaries on a
consolidated basis in accordance with Agreement Accounting Principles
consistently applied.
"License" is defined in Section 7.14.
"Lien" means any security interest, mortgage, pledge, lien (statutory or
other), claim, charge, encumbrance, conditional sale or title retention
agreement, lessor's interest under a Capitalized Lease or analogous instrument,
or preference, privilege or priority (other than a priority of payment) in, of
or on any Person's assets or properties in favor of any other Person or the
filing of any financing statement or similar instrument under the Uniform
Commercial Code or comparable law of any jurisdiction, domestic or foreign,
other than financing statements which have lapsed or for which duly executed
termination statements have been delivered to the Administrative Agent.
"Liquid Yield Option Note Documents" means the Liquid Yield Option Note
Indenture, the Liquid Yield Option Notes and all other instruments, documents
and agreements executed in connection therewith, as the same may be amended,
restated, supplemented or otherwise modified in accordance with the Parent
Guaranty.
"Liquid Yield Option Note Indenture" means the indenture dated as of
June 12, 1996 between the Parent and The Bank of New York, as trustee.
"Liquid Yield Option Notes" means the Liquid Yield Option Notes due 2011
issued by the Parent pursuant to the Liquid Yield Option Note Indenture.
"Loan Documents" means this Agreement, the Effectiveness Agreement, each
document required to be delivered under Section 7(a) of the Effectiveness
Agreement, each Letter of Credit, each
9
L/C Related Document, the Collateral Documents, each Rate Hedging Agreement,
each Intercompany Demand Note, each Intercompany Acquisition Note, the Fee
Letter, and all other notes, instruments, documentation and agreements required
hereunder or thereunder or executed and/or delivered by the Parent, the Company
or any of its Subsidiaries to the Administrative Agent, any other Agent, any
Issuing Bank or any Lender in connection herewith or therewith, as the same may
be amended, restated, supplemented or otherwise modified from time to time.
"Loans" means, collectively, the Revolving Loans and the Term Loans.
"Local Marketing Agreement" means, with respect to any radio station, an
agreement (including any time brokerage agreement) between (or assigned to) the
Company or one of its Subsidiaries and the holder or sublicensee of the FCC
Broadcast Station License relating to such radio station (which holder is not
the Parent, the Company, any of its Subsidiaries or an Affiliate of any of
them), pursuant to which the Company or such Subsidiary, subject to the control
of such holder of such FCC Broadcast Station License, and for the payment of a
fee to such holder of such FCC Broadcast Station License, (i) arranges to sell
air time for such radio station, and (ii) supplies personnel and programming
material to such radio station.
"Margin Regulations" means the collective reference to Regulation G,
Regulation T, Regulation U and Regulation X of the Board of Governors of the
Federal Reserve System from time to time in effect and shall include any
successor or other regulations or official interpretations of said Board of
Governors relating to the extension of credit or incurrence of indebtedness for
the purpose of purchasing or carrying margin stocks.
"Materials of Environmental Concern" means pollutants, contaminants,
wastes, any substance regulated as hazardous, toxic or radioactive, petroleum
and petroleum products, by-products and fractions, and radon gas.
"Mexican Assignment Agreement" means, in respect of the Mexican Sales
Agency Agreement, the assignment agreement, substantially the form of Exhibit
B-1 hereto, providing for the assignment by the Company and certain of its
Subsidiaries of all of their right, title and interest in the Mexican Sales
Agency Agreement, in favor of the Administrative Agent for the ratable benefit
of the Lenders, as duly completed, executed and delivered to the Administrative
Agent by the Company and such Subsidiaries, as the same may be amended,
modified, supplemented or restated and in effect from time to time.
"Mexican Sales Agency Agreement" means the Exclusive Promotional,
Programming and Sales Agreement dated as of June 1, 1996 between Xetra
Comunicaciones, S.A. de C.V. and Jacor Broadcasting of San Diego, Inc.,
including an amendment dated September 18, 1996, and any amendment thereto or
replacement thereof (such amendment or replacement, as the case may be, to be in
form and substance satisfactory to the Administrative Agent).
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Parent, the Company,
any of its Subsidiaries or any ERISA Affiliate is a party and to which more than
one employer is obligated to make contributions.
"Net Cash Proceeds" is defined in Section 2.8(b)(i).
"Non-Compete Agreement" means any agreement under which the Company or any
of its Subsidiaries agrees to pay money to Persons in exchange for agreements
from such Persons to refrain from competing with the Company or any of its
Subsidiaries in a certain line of business in a specific geographical area for a
certain time period, but shall not include any employment agreement which
contains a noncompete clause with respect to which no payment or other
consideration from the Company or any of its Subsidiaries is or will at any time
be due and owing, payable or otherwise contemplated or required.
"Notice of Assignment" is defined in Section 12.3.1.
"Obligations" means all unpaid principal of and accrued and unpaid interest
on the Loans, all accrued and unpaid fees and all other obligations, liabilities
and indebtedness of every kind, nature and description of the Parent, the
Company and/or its Subsidiaries to the Lenders or to any Lender, the
Administrative Agent, any Interest Rate Hedge Provider, any other Agent, any
Issuing Bank or any other Person from time to time arising under the Loan
Documents whether direct or indirect, primary or secondary, joint or several,
absolute or contingent, due or to become due, now existing or hereafter
10
arising and however acquired including, without limitation, all amounts accrued
on or after the institution of any proceeding for relief under the Federal
Bankruptcy Code.
"Operating Cash Flow" means, with respect to the Company and its
consolidated Subsidiaries, for any period of calculation, the remainder of (A)
Broadcast Cash Flow MINUS (B) those expenses classified as corporate general and
administrative expenses for such period in the profit and loss statements
delivered pursuant to Sections 6.1(a) and 6.1(b) (including all issuance
discount costs associated with any Permitted Receivables Sale), all calculated
for the Company and its Subsidiaries on a consolidated basis in accordance with
Agreement Accounting Principles consistently applied. For purposes of
determining the Leverage Ratio and the Senior Leverage Ratio hereunder, unless
otherwise agreed to by the Required Lenders and the Company, (i) in the case of
any Subsidiary or Radio Station acquired by the Company or any Subsidiary during
any period of calculation, Operating Cash Flow shall be adjusted to give effect
to such acquisition, as if such acquisition occurred on the first day of such
period, by increasing, if positive, or decreasing, if negative, Operating Cash
Flow by the Operating Cash Flow of such newly acquired Subsidiary or derived
from such Radio Station during such period prior to the date of such acquisition
on a combined PRO FORMA basis (as adjusted to eliminate costs which would be
nonrecurring expense items after giving effect to such acquisition, PROVIDED
such adjustments shall be specified in reasonable detail in a certificate
executed by an Authorized Officer of the Company), and (ii) in the case of any
Subsidiary or Radio Station sold, transferred or otherwise disposed of by the
Company or any Subsidiary during any period of calculation, Operating Cash Flow
shall be adjusted to give effect to such sale, transfer or other disposition, as
if such sale, transfer or other disposition occurred on the first day of such
period, by decreasing, if positive, or increasing, if negative, Operating Cash
Flow by the Operating Cash Flow of such Subsidiary or derived from such Radio
Station during such period prior to the date of such sale, transfer or other
disposition.
"Original Closing Date" means September 18, 1996.
"Original Effective Date" means June 12, 1996.
"Parent" means Jacor Communications, Inc., a Delaware corporation, and its
successors and assigns.
"Parent Guaranty" means the parent guaranty in substantially the form of
Exhibit J-2 hereto, as duly completed, executed and delivered to the
Administrative Agent by the Parent, as the same may be amended or modified and
in effect from time to time.
"Parent Plan" means a Plan that is sponsored, maintained, or contributed
to, by the Parent or any of its Subsidiaries, or to which the Parent or any of
its Subsidiaries has an obligation to contribute, for employees of the Parent or
any of its Subsidiaries.
"Parent Pledge Agreement" means the parent pledge agreement in
substantially the form of Exhibit D-5 hereto, as duly completed, executed and
delivered to the Administrative Agent by the Parent, as the same may be amended
or modified and in effect from time to time.
"Participants" is defined in Section 12.2.1.
"PBGC" means the Pension Benefit Guaranty Corporation and its successors
and assigns.
"Permitted Acquisition" means, collectively, at any time of determination,
any Acquisition by the Company or any of its Subsidiaries (i) of a business
engaged primarily in radio networks or of a business engaged primarily in radio
or television: (1) broadcasting, (2) satellite transmission, (3) air traffic and
weather services, (4) research services, (5) computer and software services or
(6) tower and
11
transmission services, (ii) constituting a Television Swap Acquisition or a
Radio Swap Acquisition, or (iii) of any other business (including radio
syndication and radio programming), determined by the board of directors of the
Company acting in good faith, to be materially related to the radio and
television industry, in each case with respect to which each of the following
requirements is then met, as applicable:
(a) Such Acquisition shall have been approved by the board of
directors of the entity to be acquired or, if such entity is in bankruptcy, by
the bankruptcy court having jurisdiction over the estate and the Parent, the
Company and its Subsidiaries, as the case may be, shall have made all
applications, filings and registrations with, and obtained all necessary
approvals, orders, authorizations, licenses, certificates and permits from, the
FCC and other federal, state and local regulatory or governmental bodies or
authorities that are or may be required in connection with the consummation of
such Acquisition, provided that the time for appeal or reconsideration of any
such approval, order, authorization, license, certificate or permit need not
have expired or lapsed in order to satisfy this condition (a).
(b) If such Acquisition is, or is part of a series of related
Acquisitions, for an Amount in excess of $100,000,000, the Company shall have
furnished to the Administrative Agent for distribution to each Lender during the
thirty day period immediately prior to the closing date for such Acquisition, an
Acquisition Certificate containing Acquisition Pro Formas showing the proposed
Acquisition. The Company shall also have furnished to the Administrative Agent
for distribution to each Lender copies of the acquisition agreement for such
Acquisition and all material related documentation as soon as practicable prior
to the consummation of such Acquisition.
(c) In the case of any Acquisition described in clause (iii) of the
first paragraph of this definition, the Amount of such Acquisition, when
aggregated with all other Acquisitions described in such clause (iii)
consummated after the Effectiveness Date shall not exceed the sum of
$250,000,000 (such sum to exclude the Amount of the Acquisition of The Xx. Xxxxx
Xxxxxxxxxxxx Show and certain assets related thereto).
(d) The Company, such Subsidiary and/or the entity to be acquired, as
appropriate, shall have executed and delivered and furnished to the
Administrative Agent and the Lenders, concurrently with, but in any event within
four Business Days after, the consummation of such Acquisition, such documents
as shall be required pursuant to Section 2.17 and, if such Acquisition is to be
consummated by a Subsidiary, such Subsidiary shall have executed and delivered
to the Company an Intercompany Acquisition Note in a principal amount equal to
the amount, if any, of any Intercompany Acquisition Loan made by the Company to
such Subsidiary to fund such Acquisition, and such Intercompany Acquisition Note
shall have been duly pledged by the Company to the Administrative Agent for the
benefit of the Lenders, the Issuing Banks and the Interest Rate Hedge Providers
pursuant to the Company Pledge Agreement.
(e) Prior to and after giving effect to such Acquisition, no Default
or Unmatured Default exists or will exist.
(f) In the case of an Acquisition of a business engaged primarily in
television broadcasting (other than a Television Swap Acquisition), such
Acquisition, tested at the time of the closing date for such Acquisition, would
not on a PRO FORMA basis cause Broadcast Cash Flow attributable to all
television stations then owned by the Company and its Subsidiaries to exceed 35%
of all Broadcast Cash Flow of the Company and its Subsidiaries on a consolidated
basis for the most recent twelve-month period for which financial statements
have been delivered pursuant to Section 6.1, as determined based upon the
Acquisition Pro Formas contained in the Acquisition Certificate in which the
Company shall have certified as to satisfaction of the conditions set forth in
this paragraph (f) (or, if no Acquisition Certificate is required in connection
with such Acquisition, then based upon the Acquisition Certificate required to
be delivered within sixty Business Days after the end of the fiscal quarter in
which the Acquisition is consummated, as determined on the same basis as would
be required for Acquisition Pro Formas in the Acquisition Certificate that would
be delivered on the closing date for such Acquisition if Acquisition
Certificates were required as of such closing date).
(g) After giving effect to such Acquisition, the Company would not be
in violation of any financial covenant contained in Section 6.3 as of the last
day of and for the most recent twelve-month period for which financial
statements have been delivered pursuant to Section 6.1, in each case on a PRO
forma basis as determined based upon the Acquisition Pro Formas contained in the
Acquisition Certificate in which the Company shall have certified as to
satisfaction of the conditions set forth in this paragraph (g) (or, if no
Acquisition Certificate is required in connection with such Acquisition, then
12
based upon the Acquisition Certificate to be delivered within 60 Business Days
after the end of the fiscal quarter in which the Acquisition is consummated, as
determined on the same basis as would be required for Acquisition Pro Formas in
the Acquisition Certificate that would be delivered on the closing date for such
Acquisition if Acquisition Certificates were required as of such closing date).
"Permitted Receivables Sale" shall mean any sale by the Company or any of
its Subsidiaries of Receivables to a Receivables Purchaser in a true sale
transaction without any recourse based upon the collectibility of the
Receivables sold and the sale or pledge of such Receivables (or any interest
therein) by such Receivables Purchaser, in each case without any Guarantee by or
other recourse to the Company or any Subsidiary; PROVIDED that (i) the aggregate
amount of uncollected Receivables subject to all such transactions at any time
shall not exceed $150,000,000 and (ii) the Administrative Agent shall be
satisfied with the structure and documentation for such transaction and that the
terms of such transaction, including the discount at which Receivables are sold
to such Receivables Purchaser and any termination events, shall be consistent
with those prevailing in the market at the time for similar transactions rated
BBB or better by Standard and Poor's Ratings Group or having comparable ratings
from other rating agencies.
"Permitted Stock Repurchases" means repurchases by the Parent of the
Parent's stock which do not exceed, on an aggregate basis during the period
commencing on the Original Effective Date, an amount up to at any time (a) zero,
if at the time of any such repurchase, the Leverage Ratio would be 5.00 to 1.00
or greater on a PRO FORMA basis as of the last day of and for the most recent
two-quarter period for which financial statements have been delivered pursuant
to Section 6.1 after giving effect to any dividend or distribution by the
Company related to such proposed repurchase as if declared or made on the first
day of such period, (b) $75,000,000, if at the time of any of such repurchase,
the PRO FORMA Leverage Ratio as so determined for such day and period would be
below 5.00 to 1.00 but greater than or equal to 4.00 to 1.00 and
(c) $120,000,000, if at the time of any of such repurchase, the PRO FORMA
Leverage Ratio as so determined for such day and period would be below 4.00 to
1.00.
"Person" means any corporation, natural person, firm, joint venture,
limited liability company, partnership, trust, unincorporated organization,
enterprise or Governmental Authority.
"Plan" means an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the
Internal Revenue Code and which is sponsored or maintained by the Parent, the
Company, any of its Subsidiaries or any ERISA Affiliate for employees of the
Parent, the Company, any of its Subsidiaries or any ERISA Affiliate.
"Proceeds Application Period" means, with respect to any Permitted
Acquisition, a period of up to 365 days from the date of any sale, transfer or
other disposition of any property, asset or business or issuance of any Equity
Interest, in each case as described in Section 2.8(b)(i), which 365-day period
may be extended up to an additional 175 days (the "Extended Period") if the
consummation of such Permitted Acquisition is subject only to the approval of
the FCC and/or the FTC and, prior to the 365th day after any such sale, transfer
or other disposition, the Company or its applicable Subsidiary (a) has received
a duly executed letter of intent with respect to such Permitted Acquisition, and
(b) is diligently proceeding with the preparation of all applications and other
documents necessary to obtain (and at all times during the Extended Period
continues to actively pursue) FCC approval for such Permitted Acquisition.
"Pro Rata Share" means, at any time:
(i) with respect to all payments, computations and determinations
relating to the Term Loan of any Lender, the percentage obtained by
dividing (A) the outstanding principal balance of such Lender's Term Loan
by (B) the aggregate outstanding principal balance of the Term Loans;
(ii) with respect to all payments, computations and determinations
relating to the Revolving Loan Commitment or the Revolving Loans of any
Lender, or such Lender's interest in Letters of Credit (including without
limitation determinations of the commitment fee under Section 2.11(b) and
Letter of Credit fees under Section 2.21), the percentage obtained by
dividing (A) such Lender's Revolving Loan Commitment (or the outstanding
principal balance of such Lender's Revolving Loans and all L/C Obligations
in which such Lender has an interest, if the Revolving Loan Commitments
have been terminated pursuant to the terms of this Agreement) by (B) the
Aggregate Revolving Loan Commitment (or the aggregate outstanding principal
balance of the Revolving Loans and all L/C Obligations, if the Revolving
Loan Commitments have been terminated pursuant to the terms of this
Agreement); and
13
(iii) for all other purposes with respect to each Lender, the
percentage obtained by dividing (A) the sum of (1) the outstanding
principal balance of such Lender's Term Loan and (2) such Lender's
Revolving Loan Commitment (or the outstanding principal balance of such
Lender's Revolving Loans and all L/C Obligations in which such Lender has
an interest, if the Revolving Loan Commitments have been terminated
pursuant to the terms of this Agreement) by (B) the sum of (1) the
aggregate outstanding principal balance of the Term Loans and (2) the
Aggregate Revolving Loan Commitment (or the aggregate outstanding principal
balance of the Revolving Loans and all L/C Obligations, if the Revolving
Loan Commitments have been terminated pursuant to the terms of this
Agreement).
"Purchasers" is defined in Section 12.3.1.
"Radio Stations" means, collectively, the radio stations and radio network
and any other broadcast radio stations or information services now or hereafter
owned, acquired or operated pursuant to a Joint Sales Agreement, a Local
Marketing Agreement or the Mexican Sales Agency Agreement, as the case may be,
by the Company and one or more of its Subsidiaries or by the Company or one or
more of its Subsidiaries.
"Radio Swap Acquisition" means an Acquisition pursuant to which the Company
or any of its Subsidiaries acquires a business primarily engaged in radio
broadcasting in exchange in whole or in part for a business primarily engaged in
radio broadcasting.
"Rate Hedging Agreement(s)" means the collective reference to those
interest rate protection agreements entered into by the Company pursuant to
Section 6.22(a) as the same may be amended, modified, supplemented or restated
from time to time.
"Rate Option" means the Eurodollar Rate or the Floating Rate, as the case
may be.
"Receivables" means and shall include all of the Company's and its
Subsidiaries' present and future rights to payment for services rendered or
products sold.
"Receivables Purchaser" shall mean a reputable financial institution or
trust that purchases Receivables in connection with a Permitted Receivables
Sale.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System from time to time in effect and shall include any successor or
other regulation or official interpretation of said Board of Governors relating
to reserve requirements applicable to member banks of the Federal Reserve
System.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such Section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation has waived
the requirement of Section 4043(a) of ERISA that it be notified within thirty
(30) days of the occurrence of such event, provided that a failure to meet the
minimum funding standards of Section 412 of the Internal Revenue Code and of
Section 302 of ERISA shall be a reportable event regardless of the issuance of
any waivers in accordance with Section 412(d) of the Internal Revenue Code.
"Required Lenders" means Lenders whose Pro Rata Shares, in the aggregate,
are at least 51%.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on eurocurrency
liabilities.
"Restricted Payments" is defined in Section 6.10.
"Revolver Reserve" is defined in Section 2.8(b)(i).
"Revolving Loan Commitment" means, for each Lender, the obligation of such
Lender to make Revolving Loans in an aggregate principal amount at any time not
exceeding the amount set forth opposite its name on Schedule I hereto under the
column titled "Revolving Loan Commitment," as such amount may be modified from
time to time pursuant to the terms of this Agreement.
14
"Revolving Loan Commitment Reduction Amount" means, for each Revolving Loan
Commitment Reduction Date and subject to Section 2.8(f), the amount set forth
opposite such Revolving Loan Commitment Reduction Date:
Revolving Loan Revolving Loan
Commitment Reduction Date Commitment Reduction Amount
------------------------- ---------------------------
June 30, 2000 $50,000,000
December 31, 2000 $50,000,000
June 30, 2001 $50,000,000
December 31, 2001 $50,000,000
June 30, 2002 $50,000,000
December 31, 2002 $50,000,000
June 30, 2003 $50,000,000
December 31, 2003 $50,000,000
June 30, 2004 $175,000,000
December 31, 2004 $175,000,000
"Revolving Loan Commitment Reduction Date" means each of the dates set
forth in the table in the definition of "Revolving Loan Commitment Reduction
Amount".
"Revolving Loan Termination Date" means December 31, 2004 or such earlier
date as the Revolving Loan Commitments of the Lenders shall be terminated
pursuant to the terms of this Agreement.
"Revolving Loans" is defined in Section 2.1(a).
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Senior Debt" means, at any time of determination and without duplication,
the sum of all Indebtedness of the Company and its Subsidiaries, other than
Subordinated Debt subordinated on terms at least as favorable to the Lenders as
the Senior Subordinated Debt (or on terms otherwise approved by the
Administrative Agent), and the aggregate amount of any due and unpaid interest
thereon.
"Senior Leverage Ratio" means, at any time of determination, the ratio of
(i) Senior Debt as at the date of determination to the extent such indebtedness
as of such date of determination would be classified (or required to be
classified) in whole or in part as a liability in accordance with Agreement
Accounting Principles to (ii) Operating Cash Flow for the four consecutive
fiscal quarters then most recently ended, all calculated for the Company and its
Subsidiaries on a consolidated basis in accordance with Agreement Accounting
Principles consistently applied.
"Senior Subordinated Debt" means all indebtedness represented by the
10-1/8% Senior Subordinated Notes due 2006, the 9-3/4% Senior Subordinated Notes
due 2006 and the 8-3/4% Senior Subordinated Notes due 2007 issued pursuant to
the Senior Subordinated Debt Indentures.
"Senior Subordinated Debt Indentures" means each of (i) the indenture dated
as of June 12, 1996, by and among the Company, the Parent and First Trust,
National Association, as Trustee (formerly known as First Trust of Illinois,
National Association), (ii) the indenture dated as of December 17, 1996, by and
among the Company, the Parent, certain Subsidiaries of the Company and The Bank
of New York, as Trustee and (iii) the indenture dated as of June 17, 1997 by and
among the Company, the Parent, certain Subsidiaries of the Company and The Bank
of New York, as Trustee.
"Solvent" as to any Person means that (i) the sum of the assets of such
Person, both at a fair valuation and at present fair salable value, will exceed
its liabilities, including contingent liabilities, (ii) such Person will have
sufficient capital with which to conduct its business as presently conducted and
as proposed to be conducted and (iii) such Person has not incurred debts, and
does not intend to incur debts, beyond its ability to pay such debts as they
mature. For purposes of this definition, "debt" means any liability on a claim,
and "claim" means (x) a right to payment, whether or not such right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured, or (y) a right to
an equitable remedy for breach of performance if such
15
breach gives rise to a payment, whether or not such right to an equitable remedy
is reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured, or unsecured. With respect to any such contingent
liabilities, such liabilities shall be computed at the amount which, in light of
all the facts and circumstances existing at the time, represents the amount
which can reasonably be expected to become an actual or matured liability.
"Station Broadcast Cash Flow" is defined in Section 6.13(c).
"Subordinated Debt" means the collective reference to (i) Indebtedness of
the Company (a) which by its terms is expressly subject and subordinate to the
Obligations and (b) which is not secured by any assets of the Company or any of
its Subsidiaries and (ii) the Senior Subordinated Debt.
"Subsidiary" of any Person means (i) any corporation more than 50% of the
voting securities of which shall at the time be owned or controlled, directly or
indirectly, by such Person and/or by one or more of its Subsidiaries and (ii)
any partnership, limited liability company, association, joint venture or other
entity in which such Person and/or one or more of its Subsidiaries is either a
general partner or has a 50% or more Equity Interest at the time.
"Subsidiary Guaranty" means the guaranty in substantially the form of
Exhibit J-1 hereto, as duly completed, executed and delivered to the
Administrative Agent by each Subsidiary of the Company (other than the Excluded
Subsidiaries that have not guaranteed any Subordinated Debt), as the same may be
amended or modified and in effect from time to time.
"Subsidiary Pledge Agreements" means, collectively, (i) the subsidiary
primary pledge agreement in the form of Exhibit D-2 hereto, as duly completed,
executed and delivered to the Administrative Agent by Jacor Broadcasting of
Atlanta, Inc., (ii) the subsidiary secondary pledge agreement in the form of
Exhibit D-3 hereto, as duly completed, executed and delivered to the
Administrative Agent by each Subsidiary of the Company, (iii) the subsidiary
first amended and restated secondary pledge agreement in the form of Exhibit D-4
hereto, as duly completed, executed and delivered to the Administrative Agent by
Jacor Broadcasting of Atlanta, Inc. and (iv) each other subsidiary pledge
agreement substantially in the form of Exhibit D-2 or D-3 or D-4 hereto, as the
case may be, as duly completed, executed and delivered by a Subsidiary of the
Company pursuant to Section 2.17, in each case as the same may be amended,
modified, supplemented or restated from time to time.
"Syndication Agent" means Bank of America in its capacity as syndication
agent for the Lenders pursuant to Article X, and not in its individual capacity
as a Lender, and any successor Syndication Agent appointed pursuant to
Article X.
"Taxes" is defined in Section 3.2.
"Television Station" means any broadcast television station or any business
primarily engaged in television broadcasting owned by the Company or any of its
Subsidiaries as of the Original Closing Date or acquired by the Company or any
of its Subsidiaries after the Original Closing Date and shall include, without
limitation, WKRC in Cincinnati, Ohio.
"Television Swap Acquisition" means an Acquisition pursuant to which the
Company or any of its Subsidiaries acquires a business primarily engaged in
television broadcasting with the intention of immediately (and in any case not
later than 90 days after the date of such Acquisition) conveying such business
to a Person which is not an Affiliate of the Parent, the Company or any of its
Subsidiaries in exchange for a conveyance to the Company or any of its
Subsidiaries of a business primarily engaged in radio broadcasting.
"Term Loan Commitment" means, for each Lender, the obligation of such
Lender to make a Term Loan in a principal amount on the Effectiveness Date not
exceeding the amount set forth opposite its name on Schedule I hereto under the
column titled "Term Loan Commitment", as contemplated by Section 6 of the
Effectiveness Agreement.
"Term Loan Maturity Date" means December 31, 2004.
"Term Loans" is defined in Section 2.2.
"Term Loan Payment Date" means each date set forth in the table in
Section 2.2(iii).
00
"Xxx Xxxxx Xxxxxxxxx Bank" means The Chase Manhattan Bank in its individual
capacity, and its successors and assigns.
"Total Debt" means, at any time of determination and without duplication,
the sum of the aggregate amount of Indebtedness of the Company and its
Subsidiaries as of such date of determination on a consolidated basis in
accordance with Agreement Accounting Principles and the aggregate amount of any
past due and unpaid interest thereon.
"Transactions" is defined in Section 5.2.
"Transferee" is defined in Section 12.4.
"Unfunded Liabilities" means (i) in the case of Plans that are not
Multiemployer Plans, the amount (if any) of unfunded benefit liabilities (as
defined in Section 4001(a)(18) of ERISA), determined as of the then most recent
valuation date for such Plans, and (ii) in the case of Multiemployer Plans, the
withdrawal liability of the Parent, the Company and its Subsidiaries.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" means any Subsidiary all of the outstanding
voting securities and other Equity Interests of which shall at the time be owned
and controlled, directly or indirectly, by the Company and or one or more
Wholly-Owned Subsidiaries.
"Working Capital" means at any time an amount equal to Current Assets minus
Current Liabilities at such time.
"Z/C" means Xxxx/Chilmark Fund, L.P., a Delaware limited partnership, and
its successors and assigns.
"Xxxx" means Xxxxxx Xxxx.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
Article II
THE CREDITS
Section 2.1 REVOLVING LOANS. (a) From and including the Original Closing
Date to but excluding the Revolving Loan Termination Date, each Lender severally
agrees, on the terms and subject to the conditions set forth in this Agreement,
to make Loans to the Company from time to time (the "Revolving Loans") in an
aggregate amount outstanding at any time not to exceed its Revolving Loan
Commitment minus (i) such Lender's Pro Rata Share of the L/C Obligations at such
time and (ii) such Lender's Pro Rata Share of any Revolver Reserve in effect at
such time; PROVIDED that each Lender with a Revolving Loan Commitment severally
agrees, on the terms and subject to the conditions set forth in this Agreement
(including Section 2.8), to make Revolving Loans in an amount equal to its Pro
Rata Share of any Revolver Reserve in effect at such time. The Revolving Loan
Commitment of each Lender shall be automatically and permanently reduced (i) on
each Revolving Loan Commitment Reduction Date in an amount equal to such
Lender's Pro Rata Share of the applicable Revolving Loan Commitment Reduction
Amount for such Revolving Loan Commitment Reduction Date, and (ii) in accordance
with the terms and provisions of Section 2.8(f).
(b) The Revolving Loans of each Lender shall be Floating Rate Loans
or, at the Company's option and subject to the terms hereof, Eurodollar Loans.
(c) Subject to the mandatory repayment obligations of the Company
provided for in this Agreement, the Revolving Loans shall be repaid to the
Lenders in full on the Revolving Loan Termination Date. Within the limits and
subject to the terms and conditions herein set forth, Revolving Loans may be
borrowed, repaid and reborrowed from time to time.
Section 2.2 TERM LOANS. (i) After giving effect to the transactions
contemplated by Section 6 of the Effectiveness Agreement on the Effectiveness
Date, each Lender having a Term Loan Commitment severally made, on the terms and
subject to the conditions set forth in this Agreement and
17
the Effectiveness Agreement, a single loan to the Company in the amount of the
Term Loan Commitment of such Lender (all such loans of all of the Lenders
collectively, the "Term Loans"). All Term Loan Commitments expired
simultaneously with the making of the Term Loans on the Effectiveness Date.
(ii) The Term Loan of each Lender having a Term Loan Commitment shall
consist of Floating Rate Loans or, at the Company's option and subject to the
terms hereof, Eurodollar Loans.
(iii) Once repaid, Term Loans may not be reborrowed. The Term Loans
shall mature on the Term Loan Maturity Date and shall be repaid, without premium
or penalty, by the Company, in amounts equal to the installments set forth
below, on each of the Term Loan Payment Dates specified below for each such
installment.
Term Loan Payment Date Amount of Term Loan Installment
---------------------- -------------------------------
December 31, 1999 $35,000,000
December 31, 2000 $40,000,000
December 31, 2001 $55,000,000
December 31, 2002 $75,000,000
December 31, 2003 $90,000,000
December 31, 2004 $105,000,000
Section 2.3 INTEREST. (a) The Company agrees to pay interest in respect
of the unpaid principal amount of each Floating Rate Loan from the date of the
making or conversion of such Loan until such Loan shall be paid in full at a
rate per annum equal to the Floating Rate, such interest to be computed on the
basis of a 365-or 366-day year, as appropriate.
(b) The Company agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Loan from the date of the making,
continuation or conversion of such Loan until such Loan shall be paid in full at
a rate per annum which shall be equal to the Eurodollar Rate, such interest to
be computed on the basis of a 360-day year.
(c) In the event that, and for so long as, any Default shall have
occurred and be continuing, the outstanding principal amount of all Loans and,
to the extent permitted by law, overdue interest in respect of all Loans, shall
bear interest at a rate per annum (the "Default Rate") equal to the sum of
2.000% plus the interest rate otherwise applicable hereunder to such principal
amount in effect from time to time.
(d) Interest on each Loan shall accrue from and including the date of
the borrowing thereof to but excluding the date of any repayment thereof
(provided that any Loan borrowed and repaid on the same day shall accrue one
day's interest) and shall be payable (i) in respect of each Floating Rate Loan,
quarterly in arrears on the last day of each March, June, September and December
of each year, commencing on the last day of the first calendar quarter ending
after the Original Closing Date, (ii) in respect of each Eurodollar Loan, on the
last day of each Interest Period applicable to such Loan and, in the case of an
Interest Period of six months, on the date occurring three months from the first
day of such Interest Period and on the last day of such Interest Period, and
(iii) in the case of all Loans, on any prepayment or conversion (on the amount
prepaid or converted), at maturity whether by acceleration or otherwise) and,
after such maturity, on demand.
Section 2.4 APPLICABLE MARGIN. The Applicable Margin shall be determined
based upon the chart below and shall be subject to adjustment (upwards or
downwards, as appropriate) based on the Leverage Ratio at the end of each of the
first three fiscal quarters of each fiscal year of the Company and at the end of
each fiscal year of the Company. The Leverage Ratio shall be determined (i) in
the case of determinations made with respect to the first three fiscal quarters
of the Company's fiscal year, by reference to the quarterly financial statements
of such fiscal quarter and the Compliance Certificate for such fiscal quarter
delivered pursuant to Sections 6.1(b) and 6.1(d) and (ii) in the case of
determinations made with respect to the last fiscal quarter of the Company's
fiscal year, by reference to the financial statements and Compliance Certificate
delivered by the Company pursuant to Sections 6.1(a) and 6.1(d). The
adjustment, if any, to the Applicable Margin shall be effective commencing on
the fifth Business Day after the delivery of such quarterly financial statements
or annual financial statements and Compliance Certificate and shall be effective
only for the period subsequent to such date. In the event that the Company
shall at any time fail to furnish to the Lenders the financial statements and
Compliance Certificate required to be delivered pursuant to Section 6.1(a), (b)
or (d), the maximum Applicable Margin shall apply until such time as such
financial statements and Compliance Certificate are so delivered to the
Administrative Agent.
18
Applicable Margin
------------------------------------
Floating Eurodollar
Leverage Ratio Rate Rate
-------------- ------------ ------------
Greater than or equal to 6.5:1.0 0.625% 1.750%
Less than 6.5:1.0 but greater
than or equal to 6.0:1.0 0.250% 1.375%
Less than 6.0:1.0 but greater
than or equal to 5.5:1.0 0.000% 1.125%
Less than 5.5:1.0 but greater
than or equal to 5.0:1.0 0.000% 0.875%
Less than 5.0:1.0 but greater
than or equal to 4.5:1.0 0.000% 0.625%
Less than 4.5:1.0 but greater
than or equal to 4.0:1.0 0.000% 0.500%
Less than 4.0:1.0 0.000% 0.400%
Section 2.5 BORROWING NOTICE. Whenever the Company desires to borrow
Revolving Loans, it shall give the Administrative Agent at or prior to 10:00
A.M., New York time, at least one Business Day's prior facsimile or telephonic
notice (promptly confirmed in writing) of each Floating Rate Loan, and at least
three Business Days' prior facsimile or telephonic notice (promptly confirmed in
writing) of each Eurodollar Loan to be made hereunder. Each such notice (a
"Borrowing Notice") shall be irrevocable and shall specify (i) the aggregate
principal amount of the requested Loans, (ii) the date of borrowing (which shall
be a Business Day), and (iii) whether such Loans shall consist of Floating Rate
Loans or Eurodollar Loans and, if Eurodollar Loans, the initial Interest Period
to be applicable thereto. Promptly after its receipt of a Borrowing Notice, the
Administrative Agent shall provide each Lender with a copy thereof and inform
each Lender as to its Pro Rata Share of the Advance requested thereunder.
Section 2.6 DISBURSEMENT OF FUNDS. (a) No later than noon, New York
time, on the date specified in each Borrowing Notice, each Lender will make
available its Pro Rata Share of the Advance requested to be made on such date,
in U.S. dollars and immediately available funds, to the Administrative Agent.
After the Administrative Agent's receipt of the proceeds of such Loans, the
Administrative Agent will make available to the Company the aggregate of the
amounts so made available in the type of funds actually received.
(b) Unless the Agent shall have been notified by any Lender prior to
the date of a borrowing that such Lender does not intend to make available to
the Administrative Agent its portion of the Loans to be made on such date, the
Administrative Agent may assume that such Lender has made such amount available
to the Administrative Agent on such date and the Administrative Agent in its
sole discretion may, in reliance upon such assumption, make available to the
Company a corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent by such Lender and the Administrative
Agent has made such amount available to the Company, the Administrative Agent
shall be entitled to recover such corresponding amount on demand from such
Lender. If such Lender does not pay such corresponding amount forthwith upon
the Administrative Agent's demand therefor, the Administrative Agent shall
promptly notify the Company and the Company shall immediately repay such
corresponding amount to the Administrative Agent. The Administrative Agent
shall also be entitled to recover from such Lender or the Company, as the case
may be, interest on such corresponding amount in respect of each day from the
date such corresponding amount was made available by the Administrative Agent to
the Company to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to, with respect to the Company,
the then applicable rate of interest, calculated in accordance with Section 2.3,
for the respective Loans and with respect to the Lenders, the Federal Funds
Rate. Nothing herein shall be deemed to relieve any Lender from its obligation
to fulfill its commitments hereunder or to prejudice any rights which the
Company may have against any Lender as a result of any default by such Lender
hereunder. Notwithstanding anything contained herein or in any other Loan
Document to the contrary, the Administrative Agent may apply all funds received
from the Company and proceeds of Collateral
19
available for the payment of any Obligations first to repay any amount owing by
any Lender to the Administrative Agent as a result of such Lender's failure to
fund its Loans hereunder.
Section 2.7 INTEREST PERIODS, ETC. (a) The Company shall, in each
Borrowing Notice or Conversion/Continuation Notice in respect of the making of,
conversion into or continuation of a Eurodollar Loan, select the interest period
(each an "Interest Period") applicable to such Eurodollar Loan, which Interest
Period shall, at the option of the Company, be either a one-month, two-month,
three-month or six-month period, provided that:
(i) the initial Interest Period for any Eurodollar Loan shall
commence on the date of the making of such Loan (including the date of any
conversion from a Floating Rate Loan) and each Interest Period occurring
thereafter in respect of such Loan shall commence on the date on which the
next preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided, however, that if any Interest Period
would otherwise expire on a day which is not a Business Day but is a day of
the month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iii) if any Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period, such Interest Period shall end on the last Business Day of
such calendar month;
(iv) no Interest Period in respect of any Revolving Loan or Term Loan
shall extend beyond the Revolving Loan Termination Date or the Term Loan
Maturity Date, as the case may be; and
(v) no Interest Period applicable to any Revolving Loan or any Term
Loan shall extend beyond any Revolving Loan Commitment Reduction Date or
any date upon which a repayment of the Term Loans is required to be made
pursuant to Section 2.2, unless the aggregate principal amount of Revolving
Loans or Term Loans, represented by Eurodollar Loans having Interest
Periods which will not expire on or before such date equals or is less than
the amount of the Revolving Loan Commitment or the Term Loans, in effect or
outstanding, as the case may be, immediately after the Revolving Loan
Commitment Reduction Date or any such date upon which a repayment of the
Term Loans is required to be made pursuant to Section 2.2.
(b) If upon the expiration of any Interest Period, the Company has
failed to repay the Eurodollar Loans expiring on such day or has failed to elect
a new Interest Period to be applicable to the respective Eurodollar Loan as
provided above, the Company shall be deemed to have elected to convert such
Eurodollar Loans into Floating Rate Loans effective as of the expiration date of
such current Interest Period.
(c) Notwithstanding anything contained herein to the contrary, the
Company may not borrow any Eurodollar Loan if, at the time of such borrowing, a
Default or Unmatured Default shall have occurred and be continuing on such date
either before or after giving effect to such borrowing.
Section 2.8 MANDATORY PRINCIPAL PAYMENTS. (a) If on any day the
aggregate principal amount of the Revolving Loans plus the aggregate L/C
Obligations then outstanding exceeds the Aggregate Revolving Loan Commitment
minus the aggregate amount of any Revolver Reserve in effect at such time, the
Company shall immediately repay the Revolving Loans in an amount equal to such
excess. In addition, to the extent and if for any reason after giving effect to
such repayment of Revolving Loans the Aggregate Revolving Loan Commitment minus
the aggregate amount of Revolving Loans outstanding minus any Revolver Reserve
in effect at the time is less than the amount of the L/C Obligations outstanding
at such time, the Company shall Cash Collateralize Letters of Credit in an
amount equal to the amount of such shortfall.
(b) (i) Promptly, but in any event within four Business Days after
the sale, transfer or other disposition by the Parent, the Company or any of its
Subsidiaries after the Original Closing Date (including, without limitation, any
disposition accomplished by way of a merger, consolidation or a series of
transactions) of any property, asset or business (including, without limitation,
any Radio Station) to any Person other than the Company or any of its
Subsidiaries (excluding any sale, transfer or other disposition of (A) inventory
in the ordinary course of business, (B) used, worn-out or obsolete equipment
20
no longer useful to the business in the ordinary course of business to the
extent that an amount equal to the net cash proceeds realized therefrom is used
to purchase replacement or substitute equipment within 180 days or
(C) Receivables as part of any Permitted Receivables Sale), and including any
sale or other transfer or issuance of any Equity Interests of any Subsidiary of
the Company, whether by the Company or a Subsidiary thereof, the Company shall
make a mandatory payment in respect of the principal of the Loans in an amount
equal to 100% of the net cash proceeds (after taxes, reasonable fees and
commissions and reasonable and customary expenses incurred directly in
connection therewith) realized from such sales, transfers, issuances or other
dispositions occurring after the Original Closing Date, all as certified to by
an Authorized Officer of the Company (collectively, "Net Cash Proceeds") in
accordance with the terms of this Section 2.8(b)(i); PROVIDED that, if any Cash
Equivalents are received as proceeds from any such sale, transfer, issuance or
other disposition, the Parent, the Company or such Subsidiary, as the case may
be, shall cause all such Cash Equivalents to be converted into or reduced to
cash within four Business Days after the date of any such sale, transfer,
issuance or other disposition and all such cash proceeds of such Cash
Equivalents shall be deemed to be "Net Cash Proceeds" for all purposes of this
Section 2.8(b)(i). The Company shall apply such Net Cash Proceeds within such
four Business Days as set forth above to repay the principal amount of the
Revolving Loans outstanding at such time to the extent such Net Cash Proceeds
are not (i) reinvested in a Permitted Acquisition (other than notes, bonds,
obligations and securities that do not represent a controlling interest in the
Capital Stock of an entity acquired pursuant to a Permitted Acquisition) or (ii)
used to make Capital Expenditures or to pay other expenses of the Company and
its Subsidiaries that would ordinarily be paid out of Working Capital, and a
corresponding reserve against the Aggregate Revolving Loan Commitment in an
amount equal to the Net Cash Proceeds applied to the Revolving Loans (the
"Revolver Reserve") shall be created; provided that if no Revolving Loans are
outstanding on such date or if the amount of the Net Cash Proceeds so received
exceeds the amount of Revolving Loans outstanding on such date, then the Company
may, so long as no Default shall have occurred and be continuing, retain such
proceeds in an amount equal to the excess of the Net Cash Proceeds over the
Revolving Loans then outstanding until such proceeds are reinvested in
accordance with the terms of this Section 2.8(b)(i); PROVIDED that if a Default
shall have occurred and be continuing on or after the date such excess proceeds
would have been required to have been applied to repay the Revolving Loans, the
Company shall apply such excess proceeds to repay the Obligations in accordance
with Section 2.8(f). During the Proceeds Application Period, the Company may
provide one or more Borrowing Notices of Revolving Loans to the Administrative
Agent in accordance with Section 2.5 which shall specify that the proceeds of
such Revolving Loans will be invested in a Permitted Acquisition (as all or a
portion of the purchase price thereof), or used to make Capital Expenditures or
to pay other expenses of the Company and its Subsidiaries that would ordinarily
be paid out of Working Capital, and subject to and upon the terms and conditions
set forth in this Agreement (including, without limitation, Section 4.1) the
Lenders shall make such Revolving Loans in accordance with Section 2.1 in an
aggregate amount necessary to finance such Permitted Acquisition, Capital
Expenditures or other expenses of the Company and its Subsidiaries that would
ordinarily be paid out of Working Capital, in an amount not greater than the
Revolver Reserve then in effect and the Revolver Reserve shall be reduced during
the Proceeds Application Period each time a Revolving Loan is made in accordance
with this Section 2.8(b)(i) by the amount of such Revolving Loan; PROVIDED that,
should the Proceeds Application Period have expired before such a Revolving Loan
is made with respect to the applicable portion of the Revolver Reserve as set
forth above in this Section 2.8(b)(i), then an amount equal to such applicable
portion of the Revolver Reserve (as adjusted as described above) shall be
applied to prepay the Obligations in accordance with the provisions of
Section 2.8(f) and Section 2.8(b)(iii). If any Net Cash Proceeds are retained
by the Company as provided above, then to the extent such Net Cash Proceeds are
not applied within the Proceeds Application Period to a Permitted Acquisition,
Capital Expenditures or other expenses of the Company and its Subsidiaries, the
Company shall apply such Net Cash Proceeds to repay the Obligations in
accordance with the provisions of Section 2.8(f). Upon expiration of the
Proceeds Application Period with respect to any Net Cash Proceeds, any portion
of such Net Cash Proceeds that have not been applied within such Proceeds
Application Period to a Permitted Acquisition, Capital Expenditures or other
expenses of the Company and its Subsidiaries, shall be applied as a mandatory
prepayment of the Obligations in accordance with Section 2.8(f) and
Section 2.8(b)(iii).
(ii) [Intentionally Deleted]
(iii) If the Revolver Reserve is to be applied as provided in this
Section 2.8(b) as a mandatory prepayment in accordance with Section 2.8(f), the
Company shall be deemed to have requested Revolving Loans in an amount equal to
the Revolver Reserve and such Loans shall be made regardless of any failure of
the Company to meet the conditions precedent set forth in Section 4.1.
(c) [omitted]
21
(d) Within seven Business Days of the receipt by the Company or any
of its Subsidiaries of any Debt Cash Proceeds, the Company shall make a
mandatory prepayment with respect to the principal of the Loans in an amount
equal to 50% of the amount by which the sum of such Debt Cash Proceeds and all
other Debt Cash Proceeds received after the Effectiveness Date, exceeds
$250,000,000 in the aggregate; PROVIDED that if a Default shall have occurred
and be continuing on the date any Debt Cash Proceeds are received or on the date
any Indebtedness with respect thereto is issued or would result from the
issuance of any such Indebtedness, then the Company shall make a mandatory
prepayment with respect to the Obligations in an amount equal to 100% of such
Debt Cash Proceeds (irrespective of the $250,000,000 limitation). Any
prepayment of the Obligations pursuant to this subsection (d) shall be applied
as set forth in subsection (f) below.
(e) For the purposes of determining Net Cash Proceeds and Debt Cash
Proceeds, the Parent, the Company or any of its Subsidiaries shall be deemed to
have received in cash the aggregate amount of all payments received by the
Parent, the Company or any of its Subsidiaries on any contract, promissory note
or other instrument taken or effected in connection with any sale, transfer or
other disposition of any property asset or business or equity securities, as the
case may be, at the time such cash payment is received.
(f) Mandatory payments made pursuant to subsections (b) (except as
otherwise provided therein) and (d), of this Section 2.8 shall be applied FIRST
to prepay the Term Loans pro rata based on the aggregate outstanding principal
amount of Term Loans on the date such prepayment is made until such Term Loans
shall have been repaid in full, together with accrued and unpaid interest
thereon, SECOND, to prepay the Revolving Loans until such Revolving Loans shall
have been repaid in full, together with accrued and unpaid interest thereon,
THIRD, to Cash Collateralize the then outstanding Letters of Credit, FOURTH to
all other outstanding Obligations. Simultaneously with any prepayment of the
principal amount of the Revolving Loans pursuant to the preceding sentence, each
Lender's Revolving Loan Commitment shall be permanently reduced by such Lender's
Pro Rata Share of such prepayment. All prepayments of the Term Loans shall be
applied pro rata to the scheduled installments of principal thereof. With
respect to any such mandatory reduction of the Revolving Loan Commitment, the
Revolving Loan Commitment Reduction Amount for each Revolving Loan Commitment
Reduction Date occurring after the date of such mandatory payment shall be
reduced in an amount equal to the product of the amount of such mandatory
reduction TIMES the ratio (expressed as a percentage) that such Revolving Loan
Commitment Reduction Amount bears to the sum of all of the Revolving Loan
Commitment Reduction Amounts remaining prior to the Revolving Loan Termination
Date.
(g) Mandatory payments made pursuant to this Section 2.8 of the Term
Loans or the Revolving Loans shall be accomplished by the payment first of such
Loans or portion thereof constituting Floating Rate Loans and second by the
payment of such Loans or portion thereof constituting Eurodollar Loans.
Section 2.9 OPTIONAL PRINCIPAL PAYMENTS AND REDUCTIONS OF COMMITMENTS.
(a) The Company may from time to time pay all outstanding Floating Rate
Advances, or, in a minimum aggregate amount of $10,000,000, or any integral
multiple of $1,000,000 in excess thereof, any portion of the outstanding
Floating Rate Advances, upon one Business Day's prior notice to the
Administrative Agent as described below, without penalty or premium. The
Company may from time to time pay all outstanding Eurodollar Advances, or, in a
minimum aggregate amount of $10,000,000, or any integral multiple of $1,000,000
in excess thereof, any portion of the outstanding Eurodollar Advances, upon
three (3) Business Days' prior written notice to the Administrative Agent as
described below, provided, however, (i) such optional prepayment shall only be
made on the last day of the Interest Period relevant to such Eurodollar
Advances, and (ii) after giving effect to such optional prepayment, each
outstanding Eurodollar Advance shall be in a minimum amount of $5,000,000. Any
such notice given by the Company to the Administrative Agent shall be written
notice (or telephonic notice promptly confirmed in writing), which notice shall
be irrevocable, and shall specify the amount of such prepayment and whether such
Loans being prepaid are Revolving Loans or Term Loans and whether such Advances
being prepaid are Floating Rate Advances or Eurodollar Advances. All such
prepayments of the Term Loans shall be applied pro rata to the scheduled
repayments thereof. All prepayments made pursuant to this Section 2.9(a) which
are not designated by the Company in the notice required to be delivered
pursuant to this Section 2.9(a) to be applied to the Term Loans shall be applied
to the Revolving Loans.
(b) Upon at least one Business Day's prior irrevocable written notice
to the Administrative Agent (which notice the Administrative Agent shall
promptly transmit to each of the Lenders), the Company shall have the right,
without premium or penalty, to permanently reduce each Lender's Pro Rata Share
of the Aggregate Revolving Loan Commitment, provided that any such partial
reduction shall be in a minimum aggregate amount of $10,000,000 or an integral
multiple of $1,000,000
22
in excess thereof and each such reduction shall be applied pro rata to reduce
the Revolving Loan Commitment Reduction Amount for each Revolving Loan
Commitment Reduction Date.
Section 2.10 METHOD AND PLACE OF PAYMENT. (a) Except as otherwise
specifically provided herein or therein, all payments and prepayments under this
Agreement and the other Loan Documents shall be made to the Administrative Agent
for the account of the Lenders entitled thereto not later than 12:00 noon, New
York time, on the date when due and shall be made in lawful money of the United
States of America in immediately available funds at the Administrative Agent's
office specified pursuant to Article 13, and any funds received by the
Administrative Agent after such time shall, for all purposes hereof (including
the following sentence), be deemed to have been paid on the next succeeding
Business Day. Except as otherwise specifically provided herein, the
Administrative Agent shall thereafter cause to be distributed on the date of
receipt thereof to each Lender in like funds its Pro Rata Share of payments so
received.
(b) Whenever any payment to be made hereunder or under any other Loan
Document shall be stated to be due on a day which is not a Business Day, the due
date thereof shall be extended to the next succeeding Business Day and, with
respect to payments of principal, interest shall be payable at the applicable
rate during such extension.
(c) All payments made by the Company hereunder and under the other
Loan Documents shall be made irrespective of, and without any reduction for, any
setoff or counterclaims.
Section 2.11 FEES. (a) The Company agrees to pay the fees as set forth
in the Fee Letter.
(b) The Company agrees to pay to the Administrative Agent for the
pro-rata account of the Lenders in accordance with their respective Pro Rata
Shares of the Revolving Loan Commitments a commitment fee, computed at the
Commitment Fee Rate on the average daily unused portion of the Aggregate
Revolving Loan Commitment accruing from the Original Effective Date until the
Aggregate Revolving Loan Commitment has been terminated, payable quarterly in
arrears on the last day of each March, June, September and December of each
year, and on the Revolving Loan Termination Date, or such earlier date, if any,
on which the Aggregate Revolving Loan Commitment shall terminate in accordance
with the terms hereof and calculated on the basis of a 365-or 366-day year, as
appropriate, for the number of actual days elapsed.
Section 2.12 EVIDENCE OF DEBT. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Company to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such
Lender from time to time hereunder.
(b) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Company to each Lender hereunder and
(iii) the amount of any sum received by the Administrative Agent hereunder for
the account of the Lenders and each Lender's share thereof.
(c) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section 2.12 shall be PRIMA FACIE evidence of the
existence and amounts of the obligations recorded therein; PROVIDED that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Company
to repay the Loans in accordance with the terms of this Agreement.
(d) Any Lender may request through the Administrative Agent that
Loans made by it be evidenced by a promissory note. In such event, the Company
shall execute and deliver to such Lender a promissory note payable to the order
of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 12.3) be
represented by one or more promissory notes in such form payable to the order of
the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
Section 2.13 MINIMUM ADVANCES. Each Floating Rate Advance shall be in a
minimum amount of $10,000,000 or in an integral multiple of $1,000,000 in excess
thereof, provided, that any Floating Rate Advance may be in the amount of the
unused Aggregate Revolving Loan Commitment. Each Eurodollar Rate Advance and
all conversions to and continuations of Eurodollar Loans shall be in a
23
minimum amount of $10,000,000 or in an integral multiple of $1,000,000 in excess
thereof, provided that at no time may there be more than 20 Eurodollar Rate
Advances outstanding at any time.
Section 2.14 EURODOLLAR RATE CONVERSION AND CONTINUATION. (a) Subject to
the other provisions hereof, the Company shall have the option (i) to convert at
any time all or any part of outstanding Floating Rate Loans which comprise part
of the same Advance to Eurodollar Loans, (ii) to convert all or any part of
outstanding Eurodollar Loans which comprise part of the same Advance to Floating
Rate Loans, on the expiration date of the Interest Period applicable thereto, or
(iii) to continue all or any part of outstanding Eurodollar Loans which comprise
part of the same Advance as Eurodollar Loans for an additional Interest Period,
on the expiration of the Interest Period applicable thereto; provided that no
Loan may be continued as, or converted into, a Eurodollar Loan when any Default
or Unmatured Default has occurred and is continuing.
(b) In order to elect to convert or continue a Loan under this
Section 2.14, the Company shall deliver an irrevocable notice thereof (a
"Conversion/Continuation Notice") to the Administrative Agent no later than
10:00 A.M., New York time, (i) at least one Business Day in advance of the
proposed conversion date in the case of a conversion to a Floating Rate Loan and
(ii) at least three (3) Business Days in advance of the proposed conversion or
continuation date in the case of a conversion to, or a continuation of, a
Eurodollar Loan. A Conversion/Continuation Notice shall specify (w) the
requested conversion or continuation date (which shall be a Business Day), (x)
the amount and the type of Loan to be converted or continued, (y) whether a
conversion or continuation is requested, and (z) in the case of a conversion to,
or a continuation of, a Eurodollar Loan, the requested Interest Period.
Promptly after receipt of a Conversion/Continuation Notice under this
Section 2.14(b), the Administrative Agent shall provide each Lender with a copy
thereof.
Section 2.15 LENDING OFFICES. Each Lender may book all or any portion of
any Loan at any Lending Office selected by such Lender and may change its
Lending Office from time to time. All terms of this Agreement shall apply to
any such Lending Office and the Notes shall be deemed held by each Lender for
the benefit of such Lending Office. Each Lender may, by written or telex notice
to the Administrative Agent and the Company, designate a Lending Office through
which and for whose account payments in respect of the Obligations are to be
made.
Section 2.16 NON-RECEIPT OF FUNDS BY THE AGENT. Unless the Company
notifies the Administrative Agent prior to the date on which it is scheduled to
make payment to the Administrative Agent of principal, interest or fees for the
account of the Lenders that it does not intend to make such payment, the
Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption.
If the Company has not in fact made such payment to the Administrative Agent,
the recipient of such payment shall, on demand by the Administrative Agent,
repay to the Administrative Agent the amount so made available together with
interest thereon in respect of each day during the period commencing on the date
such amount was so made available by the Administrative Agent until the date the
Administrative Agent recovers such amount at a rate per annum equal to the
Federal Funds Rate.
Section 2.17 COLLATERAL SECURITY. (a) As security for the payment of
the Obligations, the Company shall cause to be granted to the Administrative
Agent, for the ratable benefit of the Lenders, a Lien on and security interest
in all of the following, whether now or hereafter existing or acquired: (i) all
of the shares of capital stock or other Equity Interests now or hereafter
directly owned by the Company of or in its Subsidiaries and all proceeds
thereof, all as more specifically described in the Company Pledge Agreement;
(ii) all of the Intercompany Demand Notes, all of the Intercompany Acquisition
Notes and the assets of the Company described in the Mexican Assignment
Agreement and each Collateral Assignment to which the Company is a party ; (iii)
all of the shares of capital stock or other Equity Interests now or hereafter
directly or indirectly owned by any Subsidiary of or in its Subsidiaries and all
proceeds thereof, all as more specifically described in the Subsidiary Pledge
Agreements and the assets described in each Collateral Assignment to which each
Subsidiary of the Company is a party; and (iv) the shares of capital stock of
the Company owned by the Parent and all the proceeds thereof, all as more
specifically described in the Parent Pledge Agreement.
(b) (1) Concurrently with the consummation of any Permitted
Acquisition or (2) if earlier, within four Business Days of the formation of any
new Subsidiary of the Company which is permitted hereunder, the Company shall
(i) in the case of a Permitted Acquisition of stock or a
Permitted Acquisition of other Equity Interests by the Company or any of its
Subsidiaries or the formation of a new
24
Subsidiary of the Company: (A) deliver or cause to be delivered to the
Administrative Agent all of the certificates representing the capital stock
or other Equity Interests (or other instruments or securities evidencing
ownership) of such new Subsidiary which is being acquired or formed,
beneficially owned by the Company or such Subsidiary, as additional
collateral for the Obligations, to be held by the Administrative Agent in
accordance with the terms of the Company Pledge Agreement, Subsidiary
Pledge Agreement or such other document in form and substance satisfactory
to the Administrative Agent executed from time to time to effect the pledge
and assignment of such Equity Interests, as the case may be; and (B) cause
such new Subsidiary which is being acquired or formed to deliver to the
Administrative Agent (1) duly executed counterpart signature pages to the
Subsidiary Guaranty, in the form attached thereto as Annex I, together with
the authorization to the Administrative Agent and the Lenders to attach
such signature page to the Subsidiary Guaranty, the effect of which shall
be that as of the date set forth on such signature pages such new
Subsidiary shall become a party to such agreement and be bound by the terms
thereof, (2) if such Subsidiary owns any capital stock or other Equity
Interests of any other Subsidiary of the Company, a Subsidiary Pledge
Agreement or such other document in form and substance satisfactory to the
Administrative Agent executed from time to time to effect the pledge and
assignment of such Equity Interests, and (3) an Intercompany Demand Note,
duly endorsed, pledged and delivered to the Administrative Agent under the
Company Pledge Agreement;
(ii) deliver or cause to be delivered such Uniform Commercial
Code financing statements as shall be requested to perfect the security
interest of the Administrative Agent and the Lenders in the assets being
acquired to the extent such assets constitute Collateral; and
(iii) in any case, provide such other related documentation,
including, without limitation, one or more opinions of counsel reasonably
satisfactory to the Administrative Agent, articles of incorporation,
by-laws and resolutions, which in the reasonable opinion of the
Administrative Agent is necessary or advisable in connection with such
Permitted Acquisition or formation of such new Subsidiary.
Notwithstanding the foregoing, nothing contained in this Section 2.17 shall
require (A) the Company or any Subsidiary to pledge more than 65% of the capital
stock of any foreign Subsidiary or (B) any foreign Subsidiary to take any action
otherwise required by this Section 2.17, if in either case the Company shall in
good faith have determined that such pledge or action will have an adverse tax
consequence.
Section 2.18 FURTHER ASSISTANCE. In connection with any exercise by the
Administrative Agent or any Lender of its rights and remedies under the
Collateral Documents, it may be necessary to obtain the prior consent or
approval of certain Persons, including but not limited to the FCC and other
public utility regulatory agencies and governmental authorities. Upon the
exercise by the Administrative Agent or any Lender of any power, right,
privilege or remedy pursuant to any Collateral Document, applicable law or
otherwise which requires any consent, approval, registration, qualification or
authorization of any Person, the Company will, upon request by the
Administrative Agent, execute and deliver, or will cause the execution and
delivery of, all applications, certificates, instruments, and other documents
and papers that the Administrative Agent or such Lender determines may be
required to obtain such consent, approval, registration, qualification or
authorization. Without limiting the generality of the foregoing, the Company
will use its best efforts to obtain from the appropriate Persons the necessary
consents and approvals, if any: (1) for the transfer of control, if required for
the effectuation of clause (2) below, to the Administrative Agent, the Lenders
or their respective nominees or transferees upon the occurrence of a Default, of
any permit, license or authorization in respect of the operation of any Radio
Station; (2) for the effectuation of any sale or sales of Pledged Stock (as
defined in the Parent Pledge Agreement, the Company Pledge Agreement and/or the
Subsidiary Pledge Agreements) or other Equity Interests constituting Collateral
upon the occurrence of a Default; and (3) for the exercise of any other right or
remedy of the Administrative Agent or any Lender under any Collateral Document,
applicable law or otherwise. The Administrative Agent and the Lenders will
cooperate with the Company in preparing the filing with the FCC and any other
Persons of all requisite applications required to be obtained by the Company
under this Section 2.18.
Section 2.19 USE OF PROCEEDS. The Company shall use the Letters of Credit
and the proceeds of the Revolving Loans for general corporate purposes,
including the financing of Permitted Acquisitions. The proceeds of the
Term Loans were used on the Effectiveness Date as contemplated by Section 6 of
the Effectiveness Agreement.
Section 2.20 ISSUANCE OF LETTERS OF CREDIT, ETC. (a) Subject to the terms
and conditions hereof, at any time and from time to time from the Effectiveness
Date through the day prior to the Revolving
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Loan Termination Date, each Issuing Bank shall issue such Letters of Credit as
the Company may request by an L/C Application; provided that, after giving
effect to such Letter of Credit, (x) the SUM of the aggregate L/C Obligations
then outstanding PLUS the then outstanding aggregate principal amount of the
Revolving Loans shall not exceed the Aggregate Revolving Loan Commitment MINUS
any Revolver Reserve in effect at such time, and (y) the aggregate L/C
Obligations then outstanding shall not exceed $175,000,000. Unless all the
Lenders with a Revolving Loan Commitment and the applicable Issuing Bank
otherwise consent in writing, the term of any Letter of Credit shall not exceed
12 months. No Letter of Credit shall expire by its terms after the Revolving
Loan Termination Date.
(b) The Company shall submit the L/C Application for the Issuance of
any Letter of Credit to the applicable Issuing Bank in accordance with such
Issuing Bank's applicable procedures then in effect. Upon Issuance of a Letter
of Credit, the applicable Issuing Bank shall promptly notify the Lenders of the
amount and terms thereof.
(c) Upon the Issuance of a Letter of Credit, each Lender that has a
Revolving Loan Commitment shall be deemed to have purchased a pro rata
participation, from the applicable Issuing Bank in an amount equal to that
Lender's Pro Rata Share, in such Letter of Credit. Without limiting the scope
and nature of each Lender's participation in any Letter of Credit, to the extent
that the applicable Issuing Bank has not been reimbursed by the Company for any
payment required to be made by such Issuing Bank under any Letter of Credit,
each Lender shall, pro rata according to its Pro Rata Share, reimburse such
Issuing Bank promptly upon demand for the amount of such payment. The
obligation of each Lender to so reimburse such Issuing Bank shall be absolute
and unconditional and shall not be affected by the occurrence of a Default, an
Unmatured Default or any other occurrence or event. Any such reimbursement
shall not relieve or otherwise impair the obligation of the Company to reimburse
the applicable Issuing Bank for the amount of any payment made by such Issuing
Bank under any Letter of Credit together with interest as hereinafter provided.
Each Lender that has reimbursed an Issuing Bank pursuant to this Section 2.20(c)
for its Pro Rata Share of any payment made by such Issuing Bank under a Letter
of Credit shall thereupon acquire a pro rata participation, to the extent of
such reimbursement, in the claim of such Issuing Bank against the Company under
this Section 2.20.
(d) Upon the making of any payment with respect to any Letter of
Credit by the applicable Issuing Bank, the Company shall be deemed to have
submitted a Borrowing Notice for a Revolving Loan consisting of a Floating Rate
Loan in the amount of such payment, and the Administrative Agent shall without
notice to or the consent of the Company request Revolving Loans to be made by
the Lenders in an aggregate amount equal to the amount paid by such Issuing Bank
on that Letter of Credit, and for this purpose, the conditions precedent set
forth in Article IV shall not apply. The proceeds of such Revolving Loans shall
be paid to the applicable Issuing Bank (and, on a pro rata basis, to Lenders
that have previously reimbursed such Issuing Bank in respect of such payment
under paragraph (c) above) to reimburse it for the payment made by it under such
Letter of Credit. Promptly following any Revolving Loans made under this
Section 2.20, the Administrative Agent shall notify the Company thereof.
(e) To the extent that any Loans made pursuant to Section 2.20(d) are
insufficient to reimburse the applicable Issuing Bank in full, the Company
agrees to pay to such Issuing Bank with respect to each Letter of Credit, within
one Business Day after demand therefor, a principal amount equal to such
unreimbursed portion of any payment made by such Issuing Bank under that Letter
of Credit, together with interest on such amount from the date of any payment
made by such Issuing Bank through the date of payment by the Company at the
Default Rate. The principal amount of any such payment made by the Company to
any Issuing Bank shall be used to reimburse such Issuing Bank for the payment
made by it under the related Letter of Credit.
(f) The Issuance of any supplement, modification, amendment, renewal
or extension to or of any Letter of Credit shall be treated in all respects the
same as the Issuance of a new Letter of Credit.
Section 2.21 LETTER OF CREDIT FEES. The Company shall pay (i) a letter
of credit fee to the Administrative Agent equal to the product of (A) the
Applicable Margin with respect to Eurodollar Loans for the Revolving Loans
minus 0.125%, multiplied by (B) the stated amount of each Letter of Credit
per annum for the term of each Letter of Credit, payable in advance, for the
account of the Lenders who have Revolving Loan Commitments, according to
their respective Pro Rata Shares and (ii) an issuance fee to the
Administrative Agent of 0.125% of the stated amount of each Letter of Credit,
payable in advance for the account of the applicable Issuing Bank. Upon (A)
the issuance of each Letter of Credit, the Company shall also pay to the
Administrative Agent for the account of the applicable Issuing Bank an amount
equal to the greater of (i) $500 or (ii) the issuance fees; (B) the amendment
of each Letter of
26
Credit, the Company shall pay to the Administrative Agent for the account of
the applicable Issuing Bank the amendment fees, in each case, as the
applicable Issuing Bank normally charges in connection with a Letter of
Credit and activity pursuant thereto, in either case which fees shall be
solely for the account of the applicable Issuing Bank; and (C) the incurrence
of any reasonable out-of-pocket costs and expenses in connection with the
maintenance of any Letter of Credit, the Company shall pay to the
Administrative Agent for the account of the applicable Issuing Bank the
amount of such out-of-pocket costs and expenses so incurred.
Section 2.22 OBLIGATION OF THE COMPANY ABSOLUTE, ETC. The obligation of
the Company to pay to the applicable Issuing Bank the amount of any payment made
by such Issuing Bank under any Letter of Credit shall be absolute, unconditional
and irrevocable. Without limiting the foregoing, such obligation of the Company
shall not be affected by any of the following circumstances:
(1) any lack of validity or enforceability of any Letter of Credit,
this Agreement or any other agreement or instrument relating thereto;
(2) any amendment or waiver of or any consent to departure from any
Letter of Credit, this Agreement or any other agreement or instrument
relating thereto;
(3) the existence of any claim, setoff, defense or other rights which
the Company may have at any time against any issuing Bank, any Lender, the
Administrative Agent, any beneficiary of any Letter of Credit (or any
Persons for whom any such beneficiary may be acting) or any other Person,
whether in connection with any Letter of Credit, this Agreement or any
other agreement or instrument relating thereto, or any unrelated
transactions;
(4) any demand, statement or any other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect whatsoever so long as any such document appeared to comply with the
terms of such Letter of Credit;
(5) payment by any Issuing Bank in good faith under any Letter of
Credit against presentation of a draft or any accompanying document which
does not strictly comply with the terms of such Letter of Credit;
(6) the solvency or financial responsibility of any party issuing any
documents in connection with a Letter of Credit;
(7) any error in the transmission of any message relating to a Letter
of Credit not caused by the applicable Issuing Bank, or any delay or
interruption in any such message;
(8) any error, neglect or default of any correspondent of any Issuing
Bank in connection with a Letter of Credit;
(9) any consequence arising from acts of God, war, insurrection,
disturbances, labor disputes, emergency conditions or other causes beyond
the control of any Issuing Bank;
(10) the form, accuracy, genuineness or legal effect of any contract
or document referred to in any document submitted to the applicable Issuing
Bank in connection with a Letter of Credit; and
(11) any other circumstances whatsoever.
(b) Each Issuing Bank shall be entitled to the protection accorded to
the Agents pursuant to Section 10, MUTATIS MUTANDIS.
Section 2.23 CASH COLLATERAL. Notwithstanding anything to the contrary
herein or in any L/C Application, after the occurrence and during the
continuance of Default, the Company shall, upon the Administrative Agent's
demand, deliver to the Administrative Agent for the benefit of the Lenders cash,
or other collateral of a type satisfactory to the Required Lenders, having a
value (if other than cash), as determined by such Lenders, equal to the
aggregate outstanding L/C Obligations.
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Article III
CHANGE IN CIRCUMSTANCES
Section 3.1 YIELD PROTECTION. If any law or any governmental rule,
regulation, policy guideline or directive (whether or not having the force of
law), or any regulatory interpretation thereof, or compliance by any Lender with
such (which has been adopted or changed after the date hereof),
(i) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Lender or
any applicable Lending Office (other than reserves and assessments taken
into account in determining the interest rate applicable to any Eurodollar
Loan) or any Issuing Bank, or
(ii) imposes any other condition which is to increase the cost to any
Lender or any applicable Lending Office or any Issuing Bank of making,
funding or maintaining any Eurodollar Loan or of participating in, issuing
or maintaining any Letter of Credit or reduces any amount receivable by any
Lender or any applicable Lending Office or any Issuing Bank in connection
with any Eurodollar Loan or Letter of Credit, or requires any Lender or any
applicable Lending Office or any Issuing Bank to make any payment
calculated by reference to the amount of any Eurodollar Loan or Letter of
Credit made, issued, maintained or participated in or interest received by
it, by an amount deemed material by such Lender or Issuing Bank, or
(iii) affects the amount of capital required or expected to be
maintained by any Lender or Lending Office or any Issuing Bank or any
corporation controlling any Lender or any Issuing Bank and such Lender or
such Issuing Bank determines the amount of capital required is increased by
or based upon the existence of this Agreement, the Loans, any Letters of
Credit or commitments of this type,
then, within fifteen (15) days of demand by such Lender or such Issuing Bank
made together with the presentation to the Company of a certificate of such
Lender or such Issuing Bank complying with Section 3.5, the Company shall pay
such Lender or such Issuing Bank that portion of such increased expense incurred
(including, in the case of Section 3.1(iii), any reduction in the rate of return
on capital to an amount below that which it or its controlling corporation could
have achieved but for such change in regulation after taking into account such
Lender's or such Issuing Bank's or such Lender's or Issuing Bank's controlling
corporation's policies as to capital adequacy) or reduction in an amount
received which such Lender or such Issuing Bank reasonably determines is
attributable to making, funding and maintaining such Lender's or Issuing Bank's
Commitments and the Obligations owing to it.
Section 3.2 TAXES. (a) Except as required by law, all payments made by
the Company under this Agreement shall be made free and clear of, and without
reduction for or on account of, any present or future taxes, levies, imposts,
duties, charges, fees, deductions, or withholdings, imposed, levied, collected,
withheld or assessed by any Governmental Authority after the Effectiveness Date
as a result of the adoption of or any change in any law, treaty, rule,
regulation, guideline or determination of such Governmental Authority, BUT
EXCLUDING (i) net income, franchise and branch profits taxes imposed on the
Administrative Agent or a Lender or any Issuing Bank by (x) the United States of
America or any taxing authority thereof or therein, (y) the jurisdiction under
the laws of which the Administrative Agent or such Lender or such Issuing Bank
is organized or in which it has its principal office or is managed and
controlled or any political subdivision or taxing authority thereof or therein,
or (z) any jurisdiction in which the Lending Office of any Lender making and
maintaining Loans to the Company, is located or any political subdivision or
taxing authority thereof or therein, and (ii) any taxes, levies, imposts,
duties, charges, fees, deductions or withholdings arising after the date of this
Agreement, solely as the immediate result of such Lender (x) changing its
designated Lending Office as of the Effectiveness Date to a Lending Office
located in any other jurisdiction (other than a change described in the last
sentence of this Section 3.2(a) or Section 3.5) or (y) designating an additional
Lending Office located in any other jurisdiction (such non-excluded taxes,
levies, imposts, duties, charges, fees, deduction and withholdings being called
"Taxes"). If any Taxes are required to be withheld from any amounts payable to
the Administrative Agent or any Lender or any Issuing Bank hereunder, the
amounts so payable to the Administrative Agent or such Lender or such Issuing
Bank shall be increased to the extent necessary to yield to the Administrative
Agent or such Lender or such Issuing Bank (after payment of all Taxes, including
Taxes attributable to such increase, and free and clear of all liability,
including, without limitation, interest and penalties, in respect of such Taxes)
interest or any such other amounts payable
28
hereunder at the rates or in the amounts specified in this Agreement. Whenever
any Taxes are payable by the Company, the Company shall pay such Taxes in a
timely manner and promptly deliver official receipts therefor (or certified
copies thereof if such receipts are not available) to the Administrative Agent.
If the Company fails to pay Taxes when due to the appropriate taxing authority,
the Company shall indemnify the Administrative Agent and any Lender and Issuing
Bank for any incremental Taxes, interest or penalties that may become payable by
the Administrative Agent or any Lender or any Issuing Bank as a result of any
such failure together with any expenses payable by the Administrative Agent or
any Lender or any Issuing Bank in connection therewith. If the Company is
required to make any additional payment to the Administrative Agent or any
Lender or any Issuing Bank pursuant to this Section 3.2, and such Lender or such
Issuing Bank receives a credit against or relief or remission for, or repayment
of, any tax paid or payable by it in respect of, or calculated with reference
to, the Taxes giving rise to such payment, such Lender or such Issuing Bank
shall, within a reasonable time of the date on which it receives such credit,
relief, remission or repayment, use its reasonable efforts to reimburse the
Company the amount of the net benefit it receives as a result of any such
credit, relief, remission or repayment (as determined by such Lender or such
Issuing Bank) to the extent not inconsistent with such Lender's or Issuing
Bank's internal policies. If any Taxes constituting a withholding tax of the
United States of America or any other Governmental Authority shall be or become
applicable, after the Original Closing Date, to such payments by the Company to
a Lender, such Lender shall, to the extent not inconsistent with such Lender's
internal policies, use its reasonable efforts to make, fund and maintain its
Loans through a Lending Office of such Lender located in another jurisdiction so
as to reduce the Company's liability hereunder, provided that such Lender
determines, in its sole discretion, that the making, funding or maintenance of
such Loans through such other Lending Office would not otherwise materially
adversely affect such Loans or such Lender.
(b) Prior to or at the Effectiveness Date, each Lender or Issuing
Bank that is not incorporated under the laws of the United States of America or
a state thereof shall, unless it has previously done so in connection herewith,
deliver to the Administrative Agent (and the Administrative Agent agrees that it
will deliver to the Company) in the case of a Lender or Issuing Bank that is a
"bank" within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code
two duly completed copies of United States Internal Revenue Service Form 1001 or
4224 or successor applicable form, as the case may be, certifying in each case
that such Lender or Issuing Bank is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes, and (ii) each Lender and Issuing Bank will deliver to the Administrative
Agent (and the Administrative Agent will deliver to the Company) an Internal
Revenue Service Form W-8 or W-9 or successor applicable form, as the case may
be, to establish an exemption from United States backup withholding tax. In the
case of any Lender that is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Internal Revenue Code, such Lender or Issuing Bank
shall deliver (i) a representation letter to the Administrative Agent (for the
benefit of the Administrative Agent and the Company) stating that such Lender or
Issuing Bank is not a "bank" within the meaning of Section 881(c)(3)(A) of the
Internal Revenue Code and (ii) two (2) accurate and complete original signed
copies of Internal Revenue Service Form W-8, certifying that such Lender or
Issuing Bank is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes. Each Lender
and Issuing Bank that is a "bank" within the meaning of Section 881(c)(3)(A) of
the Internal Revenue Code which delivers to the Company and the Administrative
Agent a Form 1001 or 4224 and Form W-8 or W-9 pursuant to the preceding sentence
further undertakes, if requested by the Company, to deliver to the Company and
the Administrative Agent two further copies of said statement or Form 1001 or
4224 and Form W-8 or W-9, or successor applicable forms, or other manner of
certification, as the case may be, on or before the date that any such statement
or form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent statement or form previously delivered by
it to the Company, and such extension or renewals thereof as may reasonably be
requested by the Company, certifying in the case of a Form 1001 or 4224 that
such Lender or Issuing Bank is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes,
unless in any such case any change in treaty, law or regulation has occurred
prior to the date on which any such delivery would otherwise be required which
renders all such forms inapplicable or which would prevent a Lender or Issuing
Bank or the Administrative Agent from duly completing and delivering any such
statement or form with respect to it and such Lender or Issuing Bank or
Administrative Agent advises the Company that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax and, in the case of a Form W-8 or W-9, establishing an exemption from United
States backup withholding tax. Each Lender or Issuing Bank that is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code will
(for the benefit of the Administrative Agent and the Company), to the extent
legally entitled to do so, and if requested by the Company, provide to the
Company two further copies of Internal Revenue Service Form W-8 and an updated
representation letter stating that such Lender or Issuing Bank is not a "bank"
under Section 881(c)(3)(A) of the Internal Revenue Code and such other forms as
may be required in order to establish the legal entitlement of such
29
Lender or Issuing Bank to an exemption from withholding tax with respect to
payments under this Agreement. The Company shall not be required to pay any
increased amount on account of Taxes pursuant to this Section 3.2 to any Lender,
Issuing Bank, Transferee or Administrative Agent that fails to furnish any form
or statement that it was required to furnish in accordance with this Section 3.2
or Section 12.3.3, and, to the extent required by law, the Company shall be
entitled to deduct Taxes from the payments owed to such Lender, Issuing Bank,
Transferee or Administrative Agent.
Section 3.3 AVAILABILITY OF RATE OPTIONS. If any Lender determines that
maintenance of its Eurodollar Loans at a suitable Lending Office would violate
any applicable law, rule, regulation, or directive, whether or not having the
force of law, or determines that (i) deposits of a type and maturity appropriate
to match fund any Eurodollar Loan are not available or (ii) the Eurodollar Rate
does not accurately reflect the cost of making or maintaining any Eurodollar
Loan, then (unless such unavailability or inaccuracy results solely from a
deterioration in the creditworthiness of such Lender subsequent to the date
hereof) the Administrative Agent shall suspend the availability of Eurodollar
Loans from such Lender and require the interest rate applicable to any
Eurodollar Loan by such Lender then outstanding to be changed to the Floating
Rate and each such Lender's Pro Rata Share shall be adjusted as applicable in
accordance therewith.
Section 3.4 FUNDING INDEMNIFICATION. If any payment or conversion in
respect of any Eurodollar Loan occurs on a date which is not the last day of the
applicable Eurodollar Interest Period, whether because of acceleration,
prepayment or otherwise, or if an Advance related to, or conversion from or into
or in continuation of, Eurodollar Loans does not occur on a date specified
therefor in a Borrowing Notice or a Conversion/Continuation Notice, the Company
will indemnify each Lender for any loss or cost incurred by it resulting
therefrom upon request by such Lender accompanied by a certificate complying
with Section 3.5 below.
Section 3.5 LENDER CERTIFICATES; SURVIVAL OF INDEMNITY. To the extent
reasonably possible, so long as the Company has any liquidated liability to any
Lender under Section 3.1, such Lender shall designate an alternate Lending
Office with respect to its Eurodollar Loans to reduce any such liability, so
long as such designation is not disadvantageous to such Lender. A certificate
of a Lender or Issuing Bank as to the amount due under Section 3.1 or 3.4 (which
certificate shall, if so requested by the Company, include an explanation of the
basis used by such Lender or Issuing Bank in calculating such amount) shall be
delivered within one hundred and twenty 120 days after a responsible account
officer of the Lender or Issuing Bank obtains actual knowledge of the event
giving rise thereto and shall be final, conclusive and binding on the Company in
the absence of manifest error. Determination of amounts payable under such
Sections in connection with any Lender's Eurodollar Loans shall be calculated as
though each Lender funded its Pro Rata Share of any Eurodollar Advance through
the purchase of a deposit of the type and maturity corresponding to the deposit
used as a reference in determining the Eurodollar Rate applicable to such
Eurodollar Loan, whether in fact that is the case or not. Unless otherwise
provided herein, the amount specified in the certificate shall be payable on
demand after receipt by the Company of the certificate. The obligations of the
Company under Sections 3.1 and 3.4 shall survive payment of the Obligations and
termination of this Agreement.
Article IV
CONDITIONS PRECEDENT
Section 4.1 CONDITIONS PRECEDENT TO ALL LOANS. The obligation of each
Lender to make any Loan (including the refinancing of Loans on the Effectiveness
Date) and of each Issuing Bank to Issue any Letter of Credit is subject to the
satisfaction on the date such Loan is made or such Letter of Credit is Issued of
the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained herein and in the other Loan Documents (other than
representations and warranties that expressly speak only as of a different date)
shall be true and correct in all material respects on such date both before and
after giving effect to the making of such Loans or the Issuance of such Letter
of Credit.
(b) NO DEFAULT OR UNMATURED DEFAULT. No Default or Unmatured Default
shall have occurred and be continuing on such date either before or after giving
effect to the making of such Loans or the Issuance of such Letter of Credit.
(c) NO INJUNCTION. No law or regulation shall have been adopted, no
order, judgment or decree of any governmental authority shall have been issued,
and no litigation shall be pending or
30
threatened, that would enjoin, prohibit or restrain the making or repayment of
the Loans or the Issuance of such Letter of Credit or the consummation of the
Transactions which have been or are to be consummated on or before such date.
(d) NO MATERIAL ADVERSE CHANGE. No event, act or condition shall
have occurred after December 31, 1996 that has had a material adverse effect on
the assets, business, properties, financial condition or results of operations
of the Parent and its Subsidiaries or of the Company and its Subsidiaries, as
the case may be, and if any such material adverse effect shall have occurred,
the Required Lenders shall have waived the same in writing.
(e) BORROWING NOTICE. The Administrative Agent shall have received a
duly executed Borrowing Notice or L/C Application, as appropriate, in respect of
the Loans to be made or Letters of Credit to be Issued on such date.
(f) ACQUISITION. If proceeds of any Loan or any Letter of Credit
will be used for any Acquisitions by the Company or any of its Subsidiaries
proposed to be consummated based upon FCC orders which are not final and are
subject to reconsideration by the FCC or appeal to a court with respect to any
such Acquisitions, to the extent the cash portion of the Amount of all such
Acquisitions exceeds $100,000,000 in the aggregate at any one time outstanding
then (A) the Company or its Subsidiaries (if applicable) shall have negotiated
an unwind agreement with respect to the business and assets (or related voting
securities) subject to such Acquisition which provides for the simultaneous
reconveyance for full value to the seller, the seller's assignee or the seller's
trustee of all such business and assets (or related voting securities), in the
event a final FCC order is not reasonably attainable with respect to such
business and assets (or related voting securities), PROVIDED that solely with
respect to Acquisitions exceeding $100,000,000, the Required Lenders may
expressly agree that such an unwind agreement is not required and (B) all the
consideration to be paid by the Company or any Subsidiary in respect of such
Acquisition (including the proceeds of any drawing on any Letter of Credit)
shall be subject to an escrow agreement whereby such consideration is maintained
in escrow arrangements until the receipt of an FCC final order with respect
thereto), PROVIDED solely with respect to the creation or maintenance of such
escrow arrangements, the Required Lenders may expressly agree that such escrow
arrangements are not required. The requirements set forth in this
Section 4.1(f) are in addition to any other requirements and restrictions set
forth in this Agreement which are applicable to such an Acquisition.
(g) The Administrative Agent shall have received a certificate of an
Authorized Officer of the Company (i) certifying that each condition required
to be met in connection with the incurrence of additional Indebtedness under
Section 4.11 of each of the Senior Subordinated Debt Indentures has been
satisfied, (ii) certifying that the Loans to be made or Letters of Credit to be
issued will constitute "Senior Debt" for purposes of the Senior Subordinated
Debt Indentures and (iii) if the"Leverage Ratio" as set forth in the certificate
most recently delivered pursuant to Section 6.1(k) is greater than 5.5 to 1,
setting forth in reasonable detail the calculations (including the calculation
of the pro forma leverage ratio under the Senior Subordinated Debt Indentures)
necessary to certify as to such compliance.
The acceptance of the proceeds of each such Loan and the Issuance of such
Letter of Credit shall constitute a representation and warranty by the Company
to each of the Lenders that all of the conditions required to be satisfied under
this Article IV in connection with the making of such Loan or the Issuance of
such Letter of Credit have been satisfied.
All the certificates and other documents and papers referred to in this
Article IV, unless otherwise specified, shall be delivered to the Administrative
Agent for the account of each of the Lenders and in sufficient counterparts for
each of the Lenders, and shall be satisfactory in form and substance to each
Lender in its sole discretion.
Article V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Lenders that:
Section 5.1 CORPORATE EXISTENCE AND STANDING. Each of the Parent, the
Company and each of its Subsidiaries (other than Excluded Subsidiaries not party
to a Subsidiary Guaranty) is a corporation duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of incorporation and has
all requisite authority to conduct its business in each jurisdiction in which
its business is conducted.
31
Section 5.2 AUTHORIZATION AND VALIDITY. Each of the Parent, the Company
and each of its Subsidiaries (other than Excluded Subsidiaries not party to a
Subsidiary Guaranty) has the corporate power and authority and legal right to
execute and deliver the Loan Documents to which each is a party and to perform
their obligations thereunder and to consummate the transactions contemplated by
the Loan Documents, including, without limitation, the extensions of credit
hereunder (collectively, the "Transactions"). The execution and delivery by
each of the Parent, the Company and each of its Subsidiaries of the Loan
Documents to which each is a party, and the performance of their obligations
thereunder and consummation of the Transactions, have been duly authorized by
necessary corporate proceedings, and the Loan Documents to which each is a party
constitute legal, valid and binding obligations of the Parent, the Company and
each of its Subsidiaries enforceable against the Parent, the Company and each of
its Subsidiaries in accordance with their terms, except as enforceability may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
Section 5.3 NO CONFLICT; GOVERNMENT CONSENT, ETC. Except as set forth on
Schedule 5.3 hereto, neither the execution and delivery by the Parent, the
Company or any of its Subsidiaries of the Loan Documents nor the consummation of
the transactions herein or therein contemplated, nor compliance with the
provisions hereof or thereof will violate any law, rule, regulation, order,
writ, judgment, injunction, decree or award binding on the Parent, the Company
or any of its Subsidiaries or the Parent's, the Company's or any of its
Subsidiaries' articles of incorporation or by-laws or the provisions of any
indenture, instrument or agreement to which the Parent, the Company or any of
its Subsidiaries is a party or is subject, or by which it, or its property, is
bound, or conflict with or constitute a default thereunder, or result in the
creation or imposition of any Lien in, of or on the property of the Parent, the
Company or any of its Subsidiaries pursuant to the terms of any such indenture,
instrument or agreement. Except as set forth on Schedule 5.3 hereto, no order,
consent, approval, license, authorization, or validation of, or application,
filing, recording or registration with, or exemption by, any governmental or
public body or authority, or any subdivision thereof, or any other Person is
required to authorize, or is required in connection with the execution, delivery
and performance of, or the legality, validity, binding effect or enforceability
of, any of the Loan Documents or in connection with consummation of the
Transactions contemplated thereby, other than orders, consents, approvals,
applications and filings which have already been made or obtained.
Section 5.4 FINANCIAL STATEMENTS. The audited December 31, 1993, December
31, 1994, December 31, 1995 and December 31, 1996 consolidated financial
statements of the Parent, the Company and its Subsidiaries and the unaudited
consolidated financial statements of the Parent, the Company and its
Subsidiaries for June 30, 1997 heretofore delivered to the Lenders were each
prepared in accordance with Generally Accepted Accounting Principles in effect
on the dates such statements were prepared (except with respect to such
unaudited financial statements which are not adjusted to reflect (1) the
carrying value of barter receivables and barter payables in accordance with FASB
No. 63 and (2) the classification of outstanding debt between short term and
long term) and fairly present the consolidated financial condition and
operations of the Parent, the Company and its Subsidiaries, at such dates and
the consolidated results of operations of the Parent, the Company and its
Subsidiaries for the periods then ended.
Section 5.5 MATERIAL ADVERSE CHANGE. As of the Effectiveness Date, no
material adverse change in the assets, business, properties, financial condition
or results of operations of the Parent and its Subsidiaries or of the Company
and its Subsidiaries has occurred since December 31, 1996.
Section 5.6 TAXES. The Parent, the Company and its Subsidiaries have
filed (or have obtained extensions for filing) all United States federal, state
and local tax returns and all other tax returns which are required to be filed
and have timely paid all taxes which have become due or are payable pursuant to
any assessment received by the Parent, the Company or any of its Subsidiaries,
except such taxes, if any, as are being contested in good faith by appropriate
proceedings and as to which adequate reserves have been provided in accordance
with Generally Accepted Accounting Principles. No United States or state income
tax returns of the Parent, the Company or any of its Subsidiaries has been
audited by the Internal Revenue Service or any State agency. No tax liens have
been filed, and no claims are being asserted, with respect to any taxes to which
the Parent, the Company or any of its Subsidiaries are subject that are material
to the Company and its Subsidiaries taken as a whole. The charges, accruals and
reserves on the books of the Parent, the Company and its Subsidiaries in respect
of any taxes or other governmental charges are adequate.
Section 5.7 LITIGATION AND CONTINGENT OBLIGATIONS. Except as set forth on
Schedule 5.7 hereto, as of the Effectiveness Date there is no litigation,
arbitration, governmental investigation, proceeding, inquiry or Environmental
Claim pending or, to the knowledge of any of their officers, threatened against
32
or affecting the Parent, the Company or any of its Subsidiaries which could
reasonably be expected to have a material adverse effect on the business,
properties, financial condition or results of operations of the Parent and its
Subsidiaries, taken as a whole, or the Company and its Subsidiaries, taken as a
whole, or the ability of the Parent, the Company or any of its Subsidiaries to
perform its obligations under the Loan Documents or to consummate the
Transactions. Other than any liability incident to such litigation, arbitration,
proceedings or Environmental Claim, as of the Effectiveness Date neither the
Parent nor the Company nor any of its Subsidiaries has any material contingent
obligations not provided for or disclosed in the financial statements referred
to in Section 5.4.
Section 5.8 ENVIRONMENTAL MATTERS. (a) Except as set forth in Schedule
5.8(a) hereto, there are no past or present actions, activities, circumstances,
conditions, events or incidents, including, without limitation, the release or
threatened release, emission, discharge, presence or disposal of any Material of
Environmental Concern, that could form the basis of any Environmental Claim
against (i) the Parent, the Company or any of its Subsidiaries or, (ii) to the
Parent's, the Company's or its Subsidiaries' knowledge against any Person whose
liability for any Environmental Claim that the Parent, the Company or any of its
Subsidiaries has or may have retained or assumed either contractually or by
operation of law, which could, in either case, reasonably be expected to
materially adversely affect the business, properties, financial condition or
results of operations of the Parent and its Subsidiaries, taken as a whole, or
of the Company and its Subsidiaries, taken as a whole, or the ability of the
Parent, the Company or any of its Subsidiaries to perform its obligations under
the Loan Documents or to consummate the Transactions.
(b) Except as set forth in Schedule 5.8(b) hereto, to the Parent's or
the Company's knowledge (i) there are no on-site or off-site locations where the
Parent, the Company or any of its Subsidiaries has stored, disposed of or
arranged for the disposal of Materials of Environmental Concern, (ii) there are
no underground storage tanks located on property owned or leased by the Parent,
the Company or any of its Subsidiaries, (iii) there is no asbestos contained in
or forming part of any building, building component, structure or office space
owned or leased by the Parent, the Company or any of its Subsidiaries, and
(iv) no polychlorinated biphenyls (PCBs) are used or stored at any property
owned or leased by the Parent, the Company or any of its Subsidiaries, which
could reasonably be expected to materially adversely affect the business,
properties, financial condition or results of operations of the Parent and its
Subsidiaries, taken as a whole, or of the Company and its Subsidiaries, taken as
a whole, or the ability of the Parent, the Company or any of its Subsidiaries to
perform its obligations under the Loan Documents or to consummate the
Transactions.
Section 5.9 ERISA. (a) Neither the Parent, the Company nor any of its
Subsidiaries nor any ERISA Affiliate has engaged in any prohibited transaction
(as defined in Section 4975 of the Internal Revenue Code or Section 406 of
ERISA) that would subject the Parent, the Company or any of its Subsidiaries to
any penalty which would have a material adverse effect on the business,
properties, financial condition or results of operations of the Parent and its
Subsidiaries, taken as a whole, or of the Company and its Subsidiaries, taken as
a whole. As of the Effectiveness Date, neither the Parent, the Company nor any
of its Subsidiaries nor any of their ERISA Affiliates has ever maintained, or
incurred any liability under, a Plan subject to Title IV of ERISA.
(b) Except as set forth on Schedule 5.9 hereto, neither the Parent,
the Company nor any of its Subsidiaries nor any of their ERISA Affiliates has
any contingent liability with respect to any post-retirement benefit under any
"welfare plan" (as defined in Section 3(1) of ERISA) that is reasonably likely
to have a material adverse effect on the business, properties, financial
condition or results of operations of the Parent and its Subsidiaries, taken as
a whole, or of the Company and its Subsidiaries, taken as a whole.
(c) Except as set forth on Schedule 5.9 hereto, no material liability
to the Internal Revenue Service, the Department of Labor, any Plan or any trust
related thereto has been, or is expected by the Parent, the Company, any of its
Subsidiaries nor any of their ERISA Affiliates, to be incurred by the Parent,
the Company, any of its Subsidiaries or any of their ERISA Affiliates that is
reasonably likely to have a material adverse effect on the business, properties,
financial condition or results of operations of the Parent and its Subsidiaries,
taken as a whole, or of the Company and its Subsidiaries, taken as a whole.
Section 5.10 ACCURACY OF INFORMATION. No information, exhibit,
certificate, schedule or report furnished by the Parent, the Company or any of
its Subsidiaries to any Agent or to any Lender in connection with the
negotiation of the Loan Documents contains, and no information, certificate or
report which shall in the future be furnished by the Parent, the Company or any
of its Subsidiaries in connection with any of the Loan Documents will contain,
any material misstatement of fact or omit to state any material fact necessary
to make the statements contained therein not misleading.
33
Section 5.11 MARGIN REGULATIONS. No part of the proceeds of any Loan will
be used by the Parent, the Company or any of its Subsidiaries to purchase or
carry any margin stock (as defined in any Margin Regulation) or to extend credit
to others for the purpose of purchasing or carrying any such margin stock, if
the making of any Loan or the use of the proceeds thereof or the Issuance of any
Letter of Credit would violate or be inconsistent with the provisions of any
Margin Regulation.
Section 5.12 MATERIALLY BURDENSOME AGREEMENTS. Except as disclosed on
Schedule 5.12 hereto or as identified in the notes to the Parent's financial
statements referred to in Section 5.4, neither the Parent, the Company nor any
of its Subsidiaries is a party to any agreement or instrument or subject to any
charter or other corporate restriction materially and adversely affecting the
business, properties or assets, operations or condition (financial or otherwise)
as currently conducted or used in connection with the business of the Parent,
the Company and its Subsidiaries, taken as a whole. Neither the Parent, the
Company nor any of its Subsidiaries is in default in the performance, observance
or fulfillment of any of the obligations, covenants or conditions contained in
any agreement or instrument evidencing or governing Indebtedness or any other
agreement to which it is a party, which default might have a material adverse
effect on the business, properties, financial condition or results of operations
of the Parent and its Subsidiaries, taken as a whole, or of the Company and its
Subsidiaries, taken as a whole.
Section 5.13 COMPLIANCE WITH LAWS; FRANCHISES AND LICENSES. (a) The
Parent, the Company and its Subsidiaries have complied with all applicable
statutes, rules, regulations, orders and restrictions (including, without
limitation, all Environmental Laws and the Communications Act) of any domestic
or foreign government or any instrumentality or agency thereof having
jurisdiction over the conduct of their respective businesses or the ownership of
their respective properties, except where the failure to so comply would not
have a material adverse effect on the business, properties, financial condition
or results of operations of the Parent and its Subsidiaries, taken as a whole,
or of the Company and its Subsidiaries, taken as a whole. The Parent, the
Company and its Subsidiaries have obtained or are in the process of obtaining
all franchises, licenses, certificates, consents, approvals and authorizations
granted or issued by any public or governmental body, agency or authority
necessary and appropriate to own and/or operate the Radio Stations and
Television Stations and all such franchises, licenses, certificates, consents,
approvals and authorizations are in full force and effect with respect to the
Radio Stations and Television Stations or it is reasonable to believe they will
be in full force and effect.
(b) On and after the Effectiveness Date, each FCC Broadcast Station
License which is materially necessary to the operation of the business of the
Parent, the Company and its Subsidiaries taken as a whole have been validly
issued and is in full force and effect. Such FCC Broadcast Station Licenses
constitute all of the FCC authorization materially necessary for the operation
of the Parent's, the Company's and its Subsidiaries' businesses in the same
manner as it is presently conducted. Each of the Company and its Subsidiaries
has fulfilled and performed all of its material obligations with respect
thereto. No event has occurred which (a) results in, or after notice or lapse
of time or both would result in, revocation or termination of any FCC Broadcast
Station License material to the operation of the Company and its Subsidiaries
taken as a whole or (b) materially and adversely affects or in the future will
be reasonably likely (so far as the Company can now reasonably foresee) to
materially adversely affect any of the rights of the Parent, the Company and its
Subsidiaries taken as a whole thereunder (other than proceedings related to the
radio broadcast industry generally). No other FCC license is materially
necessary for the operation of the business of the Parent, the Company or any of
its Subsidiaries as now conducted. Except as may be required under Section 310
of the Communications Act, none of the FCC Broadcast Station Licenses or other
franchises or licenses require that any present stockholder, director, officer
or employee of the Parent, the Company or any of its Subsidiaries remain a
stockholder or employee of the Parent, the Company or any of its Subsidiaries,
or that any transfer of control of the Parent, the Company or any of its
Subsidiaries must be approved by any public or governmental body other than the
FCC.
(c) To the best of the Parent's and the Company's knowledge, on the
Effectiveness Date, none of the Parent, the Company or any of its Subsidiaries
is a party to any investigation, notice of violation, order or complaint issued
by or before any court or regulatory body, including the FCC, or of any other
proceedings (other than proceedings relating to the radio or television
industries generally) which could in any manner threaten or adversely affect the
validity or continued effectiveness of the FCC Broadcast Station Licenses and
which would be material to the business of the Company and its Subsidiaries
taken as a whole. As of the Effectiveness Date, neither the Parent nor the
Company has any reason to believe (other than in connection with there being no
legal assurance thereof) that the FCC Broadcast Station Licenses owned by the
Company and its Subsidiaries will not be renewed in the ordinary course. Each
of the Parent, the Company and each of its Subsidiaries has filed all reports,
applications, documents, instruments and information required to be filed by it
pursuant to applicable rules and regulations or requests of the FCC to the
extent that the failure to file the same could threaten
34
or adversely effect the validity or continued effectiveness of their respective
FCC Broadcast Station Licenses.
Section 5.14 OWNERSHIP OF PROPERTIES. The Parent, the Company and each of
its Subsidiaries has good and marketable title, free of all Liens, other than
those permitted by Section 6.17, to all of the properties and assets reflected
in the financial statements as owned by it.
Section 5.15 LOCATION OF PROPERTIES. [Intentionally Deleted]
Section 5.16 INVESTMENT COMPANY ACT. Neither the Parent, the Company nor
any of its Subsidiaries nor any corporation controlling the Parent or the
Company or under common control with the Parent or the Company is an "investment
company" or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
Section 5.17 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Parent, the
Company nor any of its Subsidiaries nor any corporation controlling the Parent
or the Company or under common control with the Parent or the Company is a
"holding company" or a "subsidiary company", of a "holding company", or an
"affiliate" of a "holding company", or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
Section 5.18 CAPITAL STRUCTURE. (a) Schedule 5.18(a) hereto sets forth
as of the Effectiveness Date, both before and after giving effect to the
Transactions to be consummated on the Effectiveness Date, the number of
authorized and issued shares of each class of capital stock of the Parent, the
Company and each of its Subsidiaries, the par value thereof and the registered
owner(s) of the capital stock of the Company and each Subsidiary of the Company.
All of such stock has been duly and validly issued and is fully paid and
non-assessable. Except as set forth in Schedule 5.18(a) hereto, as of the
Effectiveness Date, neither the Parent, the Company nor any of its Subsidiaries
has outstanding any securities convertible into or exchangeable for its capital
stock nor does the Parent, the Company or any of its Subsidiaries have
outstanding any rights to subscribe for or to purchase, or any options for the
purchase of, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to,
its capital stock. On the Effectiveness Date, Z/C owns not less than 29% of the
issued and outstanding shares of common stock of the Parent. The Parent owns
100% of the issued and outstanding capital stock of the Company.
(b) As of the Effectiveness Date, the Company and its Subsidiaries
shall have no Indebtedness to any Person other than Indebtedness arising under
the Loan Documents and the Indebtedness identified on Schedule 5.18(b) hereto.
As of the Effectiveness Date, the Parent shall have no Indebtedness to any
Person other than Indebtedness arising under the Collateral Documents to which
it is a party, Liquid Yield Option Notes in an aggregate principal amount at
maturity of not more than $259,900,000 and Guaranties of the Senior Subordinated
Debt subordinated to the Obligations on terms no less favorable to the Lenders
than the Senior Subordinated Debt.
(c) Except as set forth on Schedule 5.18(b) hereto or as permitted
under Section 6.11, upon the consummation of the Transactions which are to occur
on the Effectiveness Date, the Obligations shall constitute the only outstanding
secured indebtedness of the Company and its Subsidiaries.
(d) The aggregate principal amount of Subordinated Debt of the
Company (including the Senior Subordinated Debt) outstanding on the
Effectiveness Date is not more than $420,000,000 and the subordination
provisions with respect to all Subordinated Debt are enforceable against the
holders thereof. The Obligations constitute "Senior Debt" as defined in each of
the Senior Subordinated Note Indentures.
Section 5.19 COLLATERAL ASSIGNMENTS. Each of the Company and any of its
Subsidiaries that is party to a Joint Sales Agreement or a Local Marketing
Agreement has entered into a Collateral Assignment with respect to each such
Joint Sales Agreement or Local Marketing Agreement (subject to the proviso in
Section 6.29).
Section 5.20 EXCLUDED SUBSIDIARIES, ETC. None of the Excluded
Subsidiaries has any material assets. Each Excluded Subsidiary that has
guaranteed any portion of any Subordinated Debt has become a party to the
Subsidiary Guaranty.
Section 5.21 LABOR MATTERS. Except as set forth on Schedule 5.21 hereto,
there is no collective bargaining agreement covering any of the employees of the
Company or any of its Subsidiaries on the Effectiveness Date. As of the
Effectiveness Date, no single employment contract is necessary for the
35
profitable operation of the business of the Company and its Subsidiaries taken
as a whole. As of the Effectiveness Date, no attempt to organize the employees
of the Company or any of its Subsidiaries, and no strikes, walkouts or similar
labor disputes affecting the operations of the Company or any of its
Subsidiaries, is pending or, to the knowledge of the Company and its officers,
threatened.
Section 5.22 SOLVENCY. On the Effectiveness Date and at all times after
the Effectiveness Date and after giving effect to the Transactions to occur on
the Effectiveness Date, the Parent, the Company and each of its Subsidiaries
(other than Excluded Subsidiaries) will be Solvent.
Section 5.23 SECURITY INTERESTS AND LIENS. The Collateral Documents
create, as security for the Obligations, valid and enforceable security
interests in and Liens on all of the Collateral, in favor of the Administrative
Agent for the benefit of the Agents and the Lenders. Such security interests in
and Liens on the Collateral are superior to and prior to the rights of all third
parties (except as disclosed on Schedule 5.23 hereto), and no further recordings
or filings are or will be required in connection with the creation, perfection
or enforcement of such security interests and Liens, other than filing
continuation statements in accordance with applicable law.
Section 5.24 EFFECTIVENESS DATE TRANSACTIONS. On the Effectiveness Date,
the Transactions intended to be consummated on the Effectiveness Date will have
been consummated in accordance with all applicable laws. All consents and
approvals of, and filings and registrations with, and all other actions by, any
Person required in order to make or consummate such Transactions have been
obtained, given, filed or taken and are or will be in full force and effect.
Section 5.25 CALL LETTERS; PATENTS, TRADEMARKS, ETC. As of the
Effectiveness Date, the Parent, the Company and its Subsidiaries in the
aggregate have all rights pursuant to the rules and regulations of the FCC to
use as radio and television broadcasting call letters, or pursuant to Joint
Sales Agreements, Local Marketing Agreements and the Mexican Sales Agency
Agreement have the right to use as call letters, those call letters being used
currently and all trademarks, service marks, logos and tradenames material to
the operations thereof. After the Effectiveness Date, the Company and its
Subsidiaries will have all rights pursuant to the rules and regulations of the
FCC to use all call letters of the Radio Stations necessary for the operation of
their respective businesses and all trademarks, service marks, logos and
tradenames material to the operation thereof. To the knowledge of the Company
and its officers, as of the Effectiveness Date, and except with respect to call
letters used by the Company and its Subsidiaries pursuant to Joint Sales
Agreements, Local Marketing Agreements and the Mexican Sales Agency Agreement,
no Person other than the Company and its Subsidiaries has, owns, possesses,
holds or claims any interest with respect to the use of (or has challenged the
right of the Company or any of its Subsidiaries to use) any of such call
letters, trademarks, service marks, logos or tradenames, except for claims which
do not in the aggregate, materially affect the Company and its Subsidiaries
taken as a whole.
Section 5.26 NO DEFAULT. No Default or Unmatured Default has occurred and
is continuing.
Section 5.27 BROKERS' FEES. Except for a $1,000,000 fee payable to Equity
Group Investments Inc. following the Effectiveness Date and except as payable to
any person party to this Agreement or in accordance with the Fee Letter, neither
the Parent, the Company nor any of its Subsidiaries has any obligation to any
Person in respect of any finder's, brokers, investment banking or other similar
fee in connection with any of the Transactions.
Section 5.28 INSURANCE. All insurance policies and programs are currently
in effect with respect to the respective property and assets and business of the
Parent, the Company and its Subsidiaries. The insurance policies, programs and
amounts of insurance maintained by the Parent, the Company and its Subsidiaries
are adequate for the type of risks reasonably anticipated for the lines of
businesses in which the Parent, the Company and its Subsidiaries engage.
Section 5.29 SUBSIDIARY AGREEMENTS. Each Subsidiary of the Company (other
than the Excluded Subsidiaries) has duly executed and delivered to the
(i) Company an Intercompany Demand Note and, if required pursuant to
Section 6.11, an Intercompany Acquisition Note and (ii) Administrative Agent,
(A) a counterpart signature page to the Subsidiary Guaranty and (B) a
Subsidiary Pledge Agreement if any such Subsidiary owns any stock.
36
Article VI
COVENANTS
The Company covenants and agrees that, from and after the Effectiveness
Date until all the Commitments have been terminated, each of the Letters of
Credit has expired or been terminated and the Obligations have been indefeasibly
paid in full, unless the Required Lenders shall otherwise consent in writing:
Section 6.1 FINANCIAL REPORTING. The Company will maintain, for itself
and each of its Subsidiaries, a system of accounting established and
administered in accordance with Generally Accepted Accounting Principles, and
furnish to the Administrative Agent and the Lenders:
(a) Within 100 days after the close of each of its fiscal years, an
unqualified audit report certified by independent certified public accountants
of nationally recognized standing, acceptable to the Administrative Agent,
prepared in accordance with Generally Accepted Accounting Principles on a
consolidated basis for the Parent, the Company and its Subsidiaries, including
balance sheets as of the end of such period, related profit and loss and
reconciliation of surplus statements (consolidated only), and a statement of
cash flows (consolidated only), setting forth in comparative form the figures
for the previous fiscal year, accompanied by (i) a letter from said accountants
substantially in the form of Exhibit L hereto and (ii) a certificate of said
accountants that, in the course of their examination necessary for their
certification of the foregoing, they have obtained no knowledge of any Default
or Unmatured Default, or if, in the opinion of such accountants, any Default or
Unmatured Default shall exist, stating the nature and status thereof.
(b) Within 60 days after the end of each fiscal quarter, for the
Parent, the Company and its Subsidiaries, consolidated and consolidating
unaudited balance sheets for such fiscal quarter and consolidated profit and
loss statements for such fiscal quarter and for the period from the beginning of
the Company's fiscal year to the end of such fiscal quarter, in each case
prepared in accordance with Generally Accepted Accounting Principles and setting
forth in comparative form the corresponding figures for the comparable periods
in the preceding fiscal year, for the period from the beginning of such fiscal
year to the end of such fiscal quarter, and, in each case, in comparative form
the corresponding figures for the corresponding items in the budget for such
periods delivered by the Company to the Administrative Agent and the Lenders
pursuant to Section 6.1(c), all certified by the Company's Treasurer, Chief
Financial Officer or Vice-President of Finance and prepared in accordance with
Generally Accepted Accounting Principles, except with respect to the unaudited
balance sheets which are not adjusted to reflect (1) the carrying value of
barter receivables and barter payables in accordance with FASB No. 63 and
(2) the classification of outstanding debt between short term and long term.
(c) At the request of the Administrative Agent or any Lender, as soon
as available but in any event within 45 days of the beginning of each fiscal
year, (i) a copy of the annual budget prepared on a quarterly basis for the
Company and its Subsidiaries for the then current fiscal year reflecting cash
flow requirements and results of operations or (ii) any material revisions to
the budgets previously delivered.
(d) Together with the financial statements required to be delivered
under Section 6.1(a) and Section 6.1(b), a duly completed Compliance
Certificate.
(e) In the event a Parent Plan has any Unfunded Liabilities, within
180 days after the close of each fiscal year, a statement of the Unfunded
Liabilities of such Parent Plan, certified as correct by an Authorized Officer
of the Company and the Parent.
(f) As soon as possible and in any event within five Business Days
after an Authorized Officer of the Company learns that any Reportable Event has
occurred with respect to any Plan and, in the exercise of such officer's good
faith judgment, such officer determines that such Reportable Event is reasonably
likely to result in payment by the Company and its Subsidiaries in excess of
$4,000,000, in each such case, a statement, signed by the Chief Financial
Officer of the Company, describing said Reportable Event and the action which
the Company or the ERISA Affiliate (if applicable) proposes to take with respect
thereto.
(g) Promptly upon the furnishing thereof to the shareholders of the
Parent, copies of all financial statements, reports and proxy statements so
furnished.
37
(h) Promptly upon the filing thereof, copies of all registration
statements and annual, quarterly, or other material reports which the Parent or
any of its Subsidiaries files with the Securities and Exchange Commission or the
FCC.
(i) Simultaneously with delivery to the holders of the Senior
Subordinated Debt, or the Liquid Yield Option Notes, any report, financial
statement, notice, certificate or other information required to be delivered to
any holder of Senior Subordinated Debt or Liquid Yield Option Notes,
respectively, pursuant to any of the Senior Subordinated Debt Indentures or the
Liquid Yield Option Note Documents and copies of all notices of default
delivered to the Company or the Parent by any such holder, promptly upon receipt
thereof by the Company or the Parent.
(j) Prior to or within five days of the end of each fiscal quarter in
which any License is lost as described in Section 7.14, a certificate of an
Authorized Officer of the Company setting forth calculations in reasonable
detail of the applicable Broadcast Cash Flow percentages resulting from any such
loss of a License or Licenses.
(k) As soon as possible and in any event within 60 Business Days
after the end of each fiscal quarter of the Company, a certificate of an
Authorized Officer of the Company setting forth in reasonable detail the
"Leverage Ratio" as defined in each of the Senior Subordinated Debt Indentures
and calculated as of the end of such fiscal quarter and setting forth the
maximum amount of Indebtedness which could be incurred such that the Company
would, upon such incurrence, not then be in violation of Section 4.11 of each of
the Senior Subordinated Debt Indentures.
(l) As soon as possible and in any event within 60 Business Days
after the end of each fiscal quarter, the Company shall provide to the
Administrative Agent for distribution to each Lender, an Acquisition Certificate
containing Acquisition Pro Formas for all of the Acquisitions for which a
definitive agreement had been executed at the time of delivery of such
Acquisition Certificate.
(m) Such other information (including non-financial information) as
the Administrative Agent or any Lender may from time to time reasonably request.
Section 6.2 NOTICE OF DEFAULT, LITIGATION ETC. The Company will,
(a) within two Business Days after an Authorized Officer of the Parent or the
Company learns of the occurrence or existence thereof, give notice in writing to
the Administrative Agent of the occurrence of any Default or Unmatured Default
and (b) within five Business Days after an Authorized Officer of the Parent or
the Company learns of the occurrence or existence thereof, give notice to the
Administrative Agent in writing of (i) any litigation or other development
(other than the issuance or adoption of any new federal, state or local statute,
regulation or ordinance or any other development affecting the broadcasting
industry generally), financial or otherwise, which is reasonably likely to
materially adversely affect the business, properties, financial condition or
results of operations of the Parent and its Subsidiaries, taken as a whole, or
of the Company and its Subsidiaries, taken as a whole, or which is reasonably
likely to adversely affect the ability of the Parent, the Company or any of its
Subsidiaries to repay the Obligations as and when due or perform any of their
other respective obligations under the Loan Documents, (ii) the receipt by the
Parent, the Company or any of its Subsidiaries of any notice from any federal,
state or local governmental or regulatory body or authority of the expiration
without renewal, termination, material modification or suspension of, or
institution of any proceedings to terminate, materially modify, or suspend, any
license granted by the FCC or any other license now or hereafter held by the
Parent, the Company or any of its Subsidiaries which is material to the business
of the Company and its Subsidiaries taken as a whole (iii) any federal, state or
local statute, regulation or ordinance or judicial or administrative order
limiting or controlling the broadcast operations of the Parent, the Company or
any of its Subsidiaries which has been issued or adopted hereafter and which is
of material adverse importance or effect in relation to the operation of the
Radio Stations and Television Stations taken as a whole (other than matters
affecting the radio broadcast industry generally) or (iv) the timely filing by
any party of an application to the FCC for an authorization for a new or
modified broadcasting station that is in conflict with any of the applications
of the Parent, the Company or any of its Subsidiaries for renewal of any
licenses of the Radio Stations or Television Stations.
38
Section 6.3 FINANCIAL RATIOS.
6.3.1 LEVERAGE RATIO. The Company will maintain, as at the last day of
each fiscal quarter ending during the periods set forth below, a Leverage Ratio
not greater than the ratio set forth below opposite each such period:
Period Ratio
------ -----
Original Closing Date through 6/29/98 6.75:1
06/30/98 through 06/29/99 6.50:1
06/30/99 through 06/29/00 6.00:1
06/30/00 through 06/29/01 5.50:1
For each fiscal quarter
ending after 06/29/01 5.00:1
6.3.2 SENIOR LEVERAGE RATIO. The Company will maintain, as at the last
day of each fiscal quarter ending during the periods set forth below, a Senior
Leverage Ratio not greater than the ratio set forth below opposite each such
period:
Period Ratio
------ -----
Original Closing Date through 06/29/98 5.25:1
06/30/98 through 06/29/99 5.00:1
06/30/99 through 06/29/00 4.50:1
06/30/00 through 06/29/01 4.25:1
For each fiscal quarter
ending after 06/29/01 4.00:1
6.3.3 INTEREST COVERAGE. The Company will maintain, as at the last day
of each fiscal quarter ending during the periods set forth below, a ratio of
(a) Operating Cash Flow to (b) Cash Interest Expense, in each case calculated
for the four consecutive fiscal quarters then most recently ended for the
Company and its Subsidiaries on a consolidated basis, not less than the ratio
set forth below opposite each such period:
Period Ratio
------ -----
Original Closing Date through 06/29/98 1.75:1
For each fiscal quarter
ending after 06/29/98 2.00:1
6.3.4 FIXED CHARGE COVERAGE. The Company will maintain, as at the last
day of any fiscal quarter a ratio of (i) Operating Cash Flow to (ii) Fixed
Charges, in each case calculated for the four consecutive fiscal quarters then
most recently ended for the Company and its Subsidiaries on a consolidated
basis, of not less than 1.05 to 1.0.
Section 6.4 CONDUCT OF BUSINESS; MAINTENANCE OF LICENSES. Subject to
Dispositions permitted under Section 6.13, the Company will, and will cause each
of its Subsidiaries to, (a) carry on and conduct the business conducted (or
proposed to be conducted, as contemplated by the Information Memorandum dated
August 1997 relating to the Company) by the Company and its Subsidiaries on the
39
Effectiveness Date and any and all businesses that in the good faith judgment of
the Board of Directors of the Company are materially related businesses; (b) do
all things necessary to remain duly incorporated, validly existing and in good
standing as a domestic corporation in its jurisdiction of incorporation and
maintain all requisite authority to conduct its business in each jurisdiction in
which its business is conducted; and (c) do all things necessary to renew,
extend and continue in effect all permits, licenses and authorizations which may
at any time and from time to time be necessary to operate the Radio Stations and
Television Stations in compliance with all applicable laws and regulations.
Section 6.5 TAXES. The Company will, and will cause each of its
Subsidiaries to, pay, before they become delinquent, all material taxes,
assessments and governmental charges and levies upon it or its income, profits
or property (including any interest, penalties or additions with respect
thereto), except those which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have been set aside in
accordance with Generally Accepted Accounting Principles.
Section 6.6 INSURANCE. The Company will, and will cause each of its
Subsidiaries to, maintain with financially sound and reputable insurance
companies insurance on all their property in such amounts and covering such
risks as is consistent with sound business practice and is acceptable to the
Required Lenders, and the Company will furnish to any Lender upon request full
information as to the insurance carried and shall maintain the Administrative
Agent and the Lenders as named additional insureds as their interest may appear
on each such policy and each such policy, as appropriate, shall contain a
lender's loss payee endorsement in form and substance satisfactory to the
Administrative Agent in favor of the Administrative Agent on behalf of the
Agents and the Lenders.
Section 6.7 COMPLIANCE WITH LAWS AND FCC FILINGS IN CONNECTION WITH LOAN
DOCUMENTS. The Company will, and will cause each of its Subsidiaries to, comply
with all laws (including, without limitation, the Communications Act), rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to which
it may be subject, including, without limitation, all Environmental Laws and all
rules and regulations promulgated by the FCC and all FCC authorizations, except
where the failure to so comply would not have a material adverse effect on the
business, properties, financial condition or results of operations of the Parent
and its Subsidiaries, taken as a whole, or of the Company and its Subsidiaries,
taken as a whole, and would not result in the loss, cancelation, rescission,
termination or revocation of any broadcast license granted to the Company or any
of its Subsidiaries by the FCC that is material to the operations of the Company
and its Subsidiaries taken as a whole. Within 30 days after the Effectiveness
Date, the Company shall have made all necessary filings with the FCC, if any, in
connection with the execution, delivery and performance of the Loan Documents
and the transactions contemplated thereby, including, without limitation, the
applicable FCC filings set forth on Schedule 5.3 hereto.
Section 6.8 MAINTENANCE OF PROPERTIES. The Company will, and will cause
each of its Subsidiaries to, do all things necessary to maintain, preserve,
protect and keep its properties in good repair, working order and condition,
subject to normal wear and tear and any insured casualty loss, and make all
necessary and proper repairs, renewals and replacements so that its business
carried on in connection therewith may be properly conducted.
Section 6.9 INSPECTION, ETC. The Company will, and will cause each of its
Subsidiaries to, permit the Administrative Agent and any Lender, by their
respective representatives and agents, to inspect any of the properties,
corporate books and financial records of the Company and each of its
Subsidiaries, to examine and (except in the case of confidential information
relating to the Company's relationship with third parties) make copies of the
books of accounts and other financial records of the Company and each of its
Subsidiaries, and to discuss the affairs, finances and accounts of the Company
and each of its Subsidiaries with, and to be advised as to the same by, their
respective officers at such reasonable times and intervals as any Lender may
designate by reasonable prior notice to the Company. The Company shall provide
to the Administrative Agent such appraisals of the Parent's, the Company's and
each of its Subsidiaries' properties as the Administrative Agent or any Lender
is required to obtain by any law or governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law), or any
interpretation thereof, including, without limitation, the provisions of Title
XI of the Financial Institutions Reform, Recovery and Enforcement Act of 1989,
and any rules promulgated to implement such provisions.
Section 6.10 RESTRICTED PAYMENTS. The Company will not, nor will it
permit any of its Subsidiaries to, (a) declare or pay any dividends on its
capital stock, or return any capital to its stockholders or authorize or make
any other distribution, payment or delivery of property or cash to its
stockholders in respect of its capital stock, (b) redeem, repurchase or
otherwise acquire or retire, directly or indirectly, any of its capital stock or
the capital stock of the Parent at any time outstanding (or any options,
warrants or rights issued with respect to its capital stock) or (c) make any
payment or
40
prepayment of principal of, premium, if any, or interest on, redemption,
conversion, exchange, purchase, retirement, defeasance, sinking fund or similar
payment with respect to, any Subordinated Debt or set aside any funds for any of
the foregoing purposes (collectively, the "Restricted Payments"), except:
(i) so long as no Default or Unmatured Default shall have occurred and be
continuing or would result therefrom, the Company may declare and pay dividends
to the Parent for the purposes of repurchasing the Parent's stock but only to
the extent such stock repurchases constitute Permitted Stock Repurchases by the
Parent; (ii) so long as no Default or Unmatured Default shall have occurred and
be continuing or would result therefrom, the Company may declare and pay
dividends during any fiscal year, commencing with the fiscal year ending
December 31, 1997, in an amount not to exceed 50% of Excess Cash Flow for the
immediately preceding fiscal year, PROVIDED, HOWEVER, in any fiscal year (the
"Current Fiscal Year") in which the Leverage Ratio was equal to or greater than
5.00 to 1.00 at the end of such preceding fiscal year, the Company shall only be
permitted to pay dividends to the Parent in an amount not to exceed 25% of
Excess Cash Flow during the Current Fiscal Year; (iii) any Wholly-Owned
Subsidiary may declare and pay dividends to the Company; (iv) so long as no
Default or Unmatured Event of Default shall have occurred and be continuing or
would result therefrom, the Company may declare and pay dividends to the Parent
in an amount necessary to permit the Parent to satisfy its legally required
obligations in respect of dissenter's rights for shareholders of the Parent; and
(v) the Company may make the scheduled periodic payments of interest in respect
of any Subordinated Debt permitted under Section 6.11(g) in accordance with the
terms thereof (as in effect on the Effectiveness Date or, if such Subordinated
Debt is issued after the Effectiveness Date, on the date of issuance of such
Subordinated Debt or as amended in accordance with the terms of this Agreement),
but subject to the subordination provisions contained in the Senior Subordinated
Debt Indentures or other indenture, agreement or instrument pursuant to which
such Subordinated Debt is issued, as applicable; The Parent may use dividends
and distributions permitted by clause (ii) of this Section 6.10 for any
corporate purpose, including the repurchase of Parent's stock; and stock so
repurchased shall not be considered to be Permitted Stock Repurchases in
calculating the limitation on Permitted Stock Repurchases. Neither the
assumption nor the payment of Indebtedness of any Person being acquired by the
Parent as part of a Permitted Acquisition shall be deemed to be prohibited by
this Section 6.10, whether such Indebtedness is paid directly by the Company or
any of its Subsidiaries or is paid with the proceeds of any dividend or other
distribution by the Company to the Parent, so long as the acquired Person is
immediately upon the acquisition thereof contributed to the Company as a capital
contribution.
Section 6.11 INDEBTEDNESS. The Company will not, nor will it permit any
of its Subsidiaries to, create, incur or suffer to exist any Indebtedness
except:
(a) Indebtedness under this Agreement and the other Loan Documents.
(b) Guarantees (excluding Guarantees of obligations of Subsidiaries
of the Company to the extent that the obligations guaranteed thereby do not
constitute Indebtedness and the obligations so guaranteed are permitted to be
incurred by such Subsidiary hereunder), in an amount not to exceed, without
duplication when aggregated with the Indebtedness permitted under clauses (d)
and (f) of this Section 6.11, $50,000,000 at any one time outstanding.
(c) Indebtedness of (i) the Company to any Wholly-Owned Subsidiary
(other than an Excluded Subsidiary) provided that any such Indebtedness is
subordinated to the Obligations on subordination terms satisfactory to the
Administrative Agent, (ii) any Wholly-Owned Subsidiary to any other Wholly-Owned
Subsidiary (other than an Excluded Subsidiary) to the extent, but only to the
extent, that the proceeds of such Indebtedness are used by Subsidiaries of the
Company for working capital and other general corporate purposes of such
Subsidiary or (iii) any Wholly-Owned Subsidiary (other than an Excluded
Subsidiary) to the Company (A) to the extent, but only to the extent, that the
proceeds of such Indebtedness are used by such Wholly-Owned Subsidiary for
working capital and other general corporate purposes of such Subsidiary which
Indebtedness is evidenced by Intercompany Demand Notes which have been pledged
and delivered to the Administrative Agent, duly endorsed in blank by the
Company, pursuant to the Company Pledge Agreement or (B) with respect to
Intercompany Acquisition Loans, which Indebtedness is evidenced by Intercompany
Acquisition Notes which have been pledged and delivered to the Administrative
Agent, duly endorsed in blank by the Company, pursuant to the Company Pledge
Agreement.
(d) Indebtedness incurred to fund Capital Expenditures in an amount
not to exceed, when aggregated with the Indebtedness permitted under clauses (b)
and (f) of this Section 6.11, $50,000,000 at any one time outstanding.
(e) Existing Indebtedness identified on Schedule 6.11(e) hereto.
41
(f) Additional Indebtedness in an amount not to exceed, when
aggregated with Indebtedness permitted under clauses (b) and (d) of this
Section 6.11, $50,000,000 at any one time outstanding.
(g) The Senior Subordinated Debt and additional Subordinated Debt to
be incurred by the Company after the Effectiveness Date and Guaranties by the
Parent and the Subsidiaries of the Company thereof; provided with respect to any
Subordinated Debt issued after the Effectiveness Date that (i) such additional
Subordinated Debt shall be issued at market rates and on terms (including,
without limitation, maturity, amortization, interest, premiums, fees, covenants,
events of default and remedies) substantially similar to (and in any event not
different in any manner materially adverse to the Lenders from) the Senior
Subordinated Debt, as determined by the Administrative Agent in its sole
discretion, (ii) no Default or Unmatured Default shall exist at the time such
Subordinated Debt is issued or shall result from the issuance thereof, (iii) the
proceeds from the issuance of such Subordinated Debt are applied pursuant to
Section 2.8(d), (iv) the Company shall be in compliance with the financial
ratios set forth in Section 6.3 on a PRO FORMA basis after giving effect to the
incurrence of such Subordinated Debt for the four completed fiscal quarters
immediately preceding the issuance thereof, determined as if such issuance had
occurred on the first day of such four fiscal quarter period, and (v) the
Company shall have delivered to the Administrative Agent and each Lender a
certificate of an Authorized Officer of the Company certifying compliance with
clauses (i) through (iv) above, setting forth the calculations with respect
thereto.
Section 6.12 MERGER. The Company will not, nor will it permit any of its
Subsidiaries to, merge or consolidate with or into any other person, except that
(i) upon receipt of any necessary FCC approval, any Wholly-Owned Subsidiary may
merge into the Company or another Wholly-Owned Subsidiary and (ii) a Subsidiary
of the Company may merge with or into a Subsidiary of the Company or another
Person (other than the Company) in connection with, and for the purpose of
consummating a Permitted Acquisition. Notwithstanding the foregoing, in any
such merger or consolidation either a Subsidiary of the Company which has issued
a Subsidiary Guaranty shall be the surviving corporation or the surviving
corporation shall enter into a new Subsidiary Guaranty and, if applicable, a
Subsidiary Pledge Agreement.
Section 6.13 SALE OF ASSETS. From and after the Effectiveness Date, the
Company will not, nor will it permit any of its Subsidiaries to, without the
prior written approval of the Required Lenders, lease, sell, transfer or
otherwise dispose of any of its property, assets or business to any other Person
(a "Disposition") except for:
(a) Dispositions of inventory or of equipment deemed necessary by the
Company in an aggregate amount not to exceed $10,000,000 in any fiscal year;
(b) Dispositions of those assets described in Schedule 6.13 hereto
with respect to which the Company or the Parent has entered into negotiations
prior to the date hereof;
(c) Dispositions of Radio Stations or Television Stations so long
as:
(i) during any four-quarter period, the Station Broadcast Cash
Flow of the Radio Stations or Television Stations being disposed of does
not exceed, in the aggregate, 20% of Broadcast Cash Flow during that
four-quarter period; and
(ii) the aggregate Station Broadcast Cash Flow of Radio Stations
or Television Stations disposed of since the Effectiveness Date, including
the proposed disposition would not exceed 50% of Broadcast Cash Flow for
the four-quarter period ended immediately prior to the date of the
then-proposed disposition. For the purposes of paragraph (f) of this
Section 6.13 and this paragraph (c); the "Station Broadcast Cash Flow" of
each Radio Station or Television Station disposed of shall mean the
Broadcast Cash Flow of such station for the four-quarter period ended
immediately prior to the date such station was disposed of or is currently
to be disposed of. The Station Broadcast Cash Flow so calculated for each
station shall remain the Station Broadcast Cash Flow of such station for
all future calculations of Station Broadcast Cash Flow.
The Company shall deliver a certificate of an Authorized Officer of the
Company to the Administrative Agent within 60 Business Days following the
conclusion of each fiscal quarter during which the Company or any of its
Subsidiaries makes or proposes to make a Disposition pursuant to this
Section 6.13(c) setting forth calculations in reasonable detail of the
applicable Station Broadcast Cash Flow/Broadcast Cash Flow percentages resulting
from any such Disposition and certifying compliance
42
with this Section 6.13(c). For purposes of this Section 6.13(c) any Station
Broadcast Cash Flow relating to the Disposition of any Radio Station located in
St. Louis or Kansas City and relating to the Disposition of WKRC-TV in
Cincinnati, Ohio, shall not be included in determining compliance with the 20%
and 50% limits set forth in clauses (i) and (ii) hereof above.
(d) Dispositions of Receivables permitted under Section 6.18.
(e) Dispositions in connection with (i) a swap of any Television
Station for one or more radio stations or (ii) a swap of any radio stations or
properties related thereto acquired after the Effectiveness Date for one or more
radio stations (each transaction under clause (i) or (ii), a "Permitted Swap
Disposition"). In the event all or part of the consideration for the
disposition of any radio station described in clause (ii) above is received in
cash and such cash is used within 180 days of receipt thereof to acquire any
radio property or Television Station acquired pursuant to Section 6.15 and
satisfying section (f) of the definition of Permitted Acquisition (any such
Television Station, a "Permitted Television Station"), the radio station
initially disposed of shall be deemed to have been swapped for such newly
acquired radio property or Permitted Television Station as of the date of such
acquisition in a Permitted Swap Disposition. Any assets received in connection
with a Permitted Swap Disposition shall have a Fair Market Value, determined in
good faith by the Company, at least equal to the assets transferred by the
Company and its Subsidiaries as a result of such Permitted Swap Disposition; for
purposes of calculating compliance with the 20% and 50% limits set forth in
clauses (i) and (ii) of paragraph (c) above to the extent that such
consideration is not reinvested as provided for in this clause (e), the Company
and its Subsidiaries shall be deemed to have disposed of a portion of the
Station Broadcast Cash Flow of each Television Station or radio station
transferred by them in any Permitted Swap Disposition equal to the percentage of
the aggregate Fair Market Value of all the consideration received by any of them
in such Permitted Swap Disposition that is represented by cash or consideration
other than radio properties or Television Stations at the time of such
determination;
(f) Dispositions of assets acquired after the Effectiveness Date
pursuant to clause (iii) in the first paragraph of the definition of "Permitted
Acquisitions".
Notwithstanding the foregoing, no Disposition shall be permitted under
clauses (b) through (f) above (i) if a Default shall have occurred and be
continuing or a Default or Unmatured Default shall result therefrom and
(ii) unless the board of directors of the Company determines in good faith that
the Company or such Subsidiary of the Company, as applicable, receives Fair
Market Value for such Disposition (unless such Disposition is pursuant to an
order of a Governmental Authority), it being understood that in the event a
qualified intermediary is used in connection with any Disposition (unless such
Disposition is pursuant to an order of a Governmental Authority), the
determination of Fair Market Value shall be determined based upon the
consideration initially received by the qualified intermediary from the third
party. All of the net cash proceeds of any Disposition shall be applied as
specified in Section 2.8 and when and as such proceeds are converted to cash,
such cash shall be applied as specified in Section 2.8; provided that, if any
Cash Equivalents are received as proceeds from any such Disposition, all such
Cash Equivalents must be reduced to cash within four (4) Business Days after the
date of any such Disposition and such cash proceeds must immediately be applied
as specified in Section 2.8(b).
A qualified intermediary (as defined in Treasury Regulation
1.1031(k)-1(g)(4)) shall not be used in connection with any Disposition if as
a result of such use the aggregate amount of assets held in qualified
intermediaries would be in excess of $15,000,000, unless the Company shall
have delivered to the Administrative Agent, within 60 business days after the
end of any such fiscal quarter during which any such Disposition occurs, a
certificate of an Authorized Officer of the Company stating that (A) as of
the last day of and for the most recent twelve-month period for which
financial statements have been delivered pursuant to Section 6.1, the Company
is in compliance on a PRO FORMA basis with all covenants (including, without
limitation, financial covenants) after giving effect to such Disposition as
if it had been consummated on the first day of such period but without giving
effect to the receipt of any proceeds that will be held by the qualified
intermediary, (B) immediately before and after giving effect to each such
Disposition, all the representations and warranties set forth in the Loan
Documents shall be true and correct in all material respects (except those
representations and warranties that speak only as of a different date) and no
Default or Unmatured Default shall exist and (C) to the best of such
officer's knowledge, there is no circumstance or event existing or reasonably
likely to occur that could reasonably be expected to result in a Default
existing at any time that assets will be held in a qualified intermediary in
respect of such Disposition. In the event that the Leverage Ratio would be
5.5 to 1 or greater or the Senior Leverage Ratio would be 4.0 to 1 or
greater, in each case on a PRO forma basis as so determined for such day and
period, the maximum aggregate amount of assets that may be held in qualified
intermediaries after giving effect to such Disposition shall be $100,000,000.
In each case in which a
43
qualified intermediary is used, the Company shall have determined that such
qualified intermediary is creditworthy and is capable of performing its
obligations as a qualified intermediary.
Section 6.14 SALE AND LEASEBACK. The Company will not, and will not
permit any of its Subsidiaries to, directly or indirectly, enter into any
arrangement with any Person whereby it shall sell or transfer any property used
or useful in its business, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property which it intends to use
for substantially the same purpose or purposes as the property being sold or
transferred; PROVIDED; that the Company and the Subsidiaries may enter into such
transactions with respect to property with a book value at the time or times of
transfer not in excess of $10,000,000 in the aggregate.
Section 6.15 INVESTMENTS AND ACQUISITIONS. The Company will not, nor will
it permit any of its Subsidiaries to, make or suffer to exist any Investments
(including, without limitation, loans and advances to, and other Investments in,
the Company or its Subsidiaries), or commitments therefor, or to create any
Subsidiary or to become or remain a partner in any partnership or joint venture,
or to make any Acquisition of any interest in any Person, except for:
(i) Permitted Acquisitions which may be consummated without violating
any of the other terms hereof, provided that the Administrative Agent for
the benefit of the Agents and the Lenders has received a perfected first
priority security interest in the stock of any Subsidiary so acquired or of
any Subsidiary which shall be used to accomplish any such Acquisition as
required pursuant to Section 2.17, provided further, however, that the
Lenders agree that the Administrative Agent will not receive a security
interest in such stock if and to the extent that such security interest in
favor of the Administrative Agent would violate applicable law; and
(ii) the following Investments:
(a) Short-term obligations of, or fully guaranteed by, the
United States of America.
(b) Commercial paper or money market mutual funds rated A-1 or
better by Standard and Poor's Ratings Group or P-1 or better by Xxxxx'x
Investors Service, Inc. or the Dreyfus Cash Management Fund or the American
Advantage Money Market Fund.
(c) Demand deposit accounts maintained in the ordinary course of
business at one or more of the Lenders or pursuant to an account agreement
which shall be satisfactory to the Administrative Agent.
(d) Certificates of deposit issued by and time deposits with
commercial banks (whether domestic or foreign) having capital and surplus
in excess of $500,000,000.
(e) Loans and advances constituting Indebtedness of the Company
or a Wholly-Owned Subsidiary permitted by the terms of Section 6.11(c),
provided that, with respect to any such Indebtedness of a Wholly-Owned
Subsidiary to the Company, such Indebtedness shall be evidenced by an
Intercompany Demand Note or an Intercompany Acquisition Note which has been
pledged and delivered to the Administrative Agent (duly endorsed in blank)
pursuant to the Company Pledge Agreement.
(f) The Investments set forth on Schedule 6.15(f) hereto.
(g) Additional Investments not exceeding, in the aggregate for
the Company and its Subsidiaries, $100,000,000 at any one time outstanding,
provided that no Default shall have occurred and be continuing at the time
any such Investment pursuant to this Section 6.15(g) is made or would
result therefrom, provided further that no such additional Investments
shall be made in any Excluded Subsidiary or in the Parent, Z/C or any of
their Affiliates (other than Subsidiaries of the Company which are not
Excluded Subsidiaries).
Section 6.16 GUARANTIES. The Company will not, nor will it permit any of
its Subsidiaries to, make or suffer to exist any Guaranty (including, without
limitation, any Guaranty of the obligations of a Subsidiary of the Company),
except (a) Guaranties arising under the Collateral Documents, (b) those
Guaranties identified on Schedule 6.11(e), (c) Guaranties of obligations of
Subsidiaries of the Company to the extent that the obligations guaranteed
thereby do not constitute Indebtedness and the obligations so
44
guaranteed are permitted to be incurred by such Subsidiary hereunder and
(d) Guaranties permitted under Sections 6.11(b), 6.11(f) and 6.11(g).
Section 6.17 LIENS. The Company will not, nor will it permit any of its
Subsidiaries to, create, incur, or suffer to exist any Lien in, of or on any of
the property or assets of the Company or any of its Subsidiaries, except:
(a) Liens for taxes, assessments or governmental charges or levies on
its property and assets if the same shall not, at the time, be delinquent or
thereafter can be paid without penalty, or are being contested in good faith and
by appropriate proceedings diligently conducted and with respect to which the
Company or such Subsidiary is maintaining adequate reserves in accordance with
Generally Accepted Accounting Principles.
(b) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the ordinary course of
business which secure payment of obligations not more than sixty (60) days past
due or are being contested in good faith and by appropriate proceedings
diligently conducted and with respect to which the Company or such Subsidiary is
maintaining adequate reserves in accordance with Generally Accepted Accounting
Principles.
(c) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation and deposits made in the
ordinary course of business to secure obligations to public utilities and under
leases and contracts (other than contracts for Indebtedness).
(d) Restrictions, reservations, encroachments, easements, exceptions,
rights-of-way, covenants, conditions and such other title exceptions,
encumbrances or charges against real property which do not in any material way
affect the business of the Company or its Subsidiaries taken as a whole.
(e) Attachments, judgments and other similar Liens arising in
connection with court proceedings, provided that the execution or other
enforcement of such Liens is effectively stayed and the claims secured thereby
are being contested in good faith by appropriate proceedings diligently
conducted.
(f) Liens in favor of the Administrative Agent and the Lenders
created pursuant to the Collateral Documents.
(g) Liens granted to secure the Indebtedness permitted by
Section 6.11(d) or (f), provided that no such Lien shall extend to any property
other than the property purchased concurrently with the incurrence of such
Indebtedness.
(h) Liens arising or deemed to arise in connection with sale and
lease-back transactions permitted under Section 6.14.
(i) Without duplication, other Liens securing obligations otherwise
permitted under Section 6.11 in an aggregate amount not to exceed $3,500,000.
Section 6.18 RECEIVABLES. The Company will not, nor will it permit any of
its Subsidiaries to, sell, discount (except to the obligor thereof in the
ordinary course of business) or otherwise dispose of any Receivables or any
interest therein, with or without recourse, other than (i) Receivables that are
sold as part of a Permitted Receivables Sale and (ii) Receivables generated by a
Radio Station or a Television Station which are sold to a purchaser of such
Radio Station or such Television Station, respectively.
Section 6.19 [Intentionally Deleted]
Section 6.20 AFFILIATES. Except for transactions described in Schedule
6.20 hereto, the Company will not, and will not permit any of its Subsidiaries
to, enter into any transaction (including, without limitation, the purchase or
sale of any property or service), with, or make any payment or transfer to, any
Affiliate except in the ordinary course of business and pursuant to the
reasonable requirements of the Company's or such Subsidiary's business and upon
fair and reasonable terms no less favorable to the Company or such Subsidiary
than the Company or such Subsidiary would obtain in a comparable arm's-length
transaction and except that the Company and its Subsidiaries may enter into tax
sharing arrangements with the Parent pursuant to which the Company and its
Subsidiaries may make payments to the Parent with respect to the Company's
federal, state, or local income or franchise tax liabilities where the Company
is included in a consolidated, unitary or combined return filed by the Parent
pursuant to an agreement in form and substance acceptable to the Agents;
provided that the
45
aggregate amount of payments made by the Company and its Subsidiaries pursuant
to any such agreement shall not exceed the hypothetical stand-alone liability of
the Company and its Subsidiaries for such taxes (determined as if the Company
and its Subsidiaries were a separate consolidated, unitary or combined group).
Section 6.21 MANAGEMENT FEES. The Company will not, nor will it permit
any of its Subsidiaries to, pay or become obligated to pay, any management or
other similar fee to Z/C, any of its Affiliates or the Parent other than an
annual management fee ("Annual Management Fee") payable each calendar year, in a
maximum amount equal to $2,000,000 (such amount to exclude the original issue
discount on the Liquid Yield Option Notes for such calendar year).
Section 6.22 INTEREST RATE PROTECTION, ETC. (a) At any time when the
one-month Eurodollar Base Rate or the five-year treasury rate equals or exceeds
8.00% per annum, the Company shall enter into (to the extent it has not already
done so) interest rate protection agreements (each, a "Rate Hedging Agreement")
with one or more financial institutions (provided that such financial
institution or financial institutions are offering terms and conditions
generally available within the applicable market at such time), which Rate
Hedging Agreements, when taken together and when added to the sum of the
principal amount of the Company's Senior Subordinated Debt and any of the
Company's fixed rate Subordinated Debt as allowed pursuant to Section 6.11(g),
shall have an aggregate notional principal amount at least equal to 50% of the
aggregate principal amount of the Term Loans under this Agreement, the Company's
Senior Subordinated Debt and any of the Company's fixed rate Subordinated Debt
as allowed pursuant to Section 6.11(g) on the date of such agreement (the
"Hedged Amount") pursuant to which the effective interest rate (inclusive of all
fees and costs related to the Rate Hedging Agreements) payable by the Company
with respect to such Hedged Amount will be fixed or capped at a rate no greater
than 8.00% per annum plus the Applicable Margin for a period ending not earlier
than the third anniversary of the first date on which such interest rate equals
or exceeds 8.00% per annum. All obligations by the Company to any Lender (or an
Affiliate thereof) under any Rate Hedging Agreement shall be secured by the
Collateral, PARI PASSU, with the Obligations under the Loan Documents and shall
be guaranteed pursuant to the Parent Guaranty and the Subsidiary Guaranty.
(b) Neither the Company nor any of its Subsidiaries shall enter into
or become liable (directly or indirectly, absolutely or contingently) in any way
under or with respect to any interest rate protection agreement (including,
without limitation, any interest rate swaps, caps, floors, collars or similar
agreements) or any currency swaps or similar agreements except as required under
Section 6.22(a) and except for such other interest rate protection agreements
entered into by the Company (provided that any such agreements shall not be
speculative in nature) with an aggregate notional principal amount, when
combined with the notional principal amount of any Rate Hedging Agreements then
maintained pursuant to Section 6.22(a), not in excess of the outstanding
principal amount of the Loans at such time.
Section 6.23 CERTAIN AGREEMENTS. The Company shall not, and shall not
permit any of its Subsidiaries to, enter into, assume or otherwise become liable
under any agreement (other than the Loan Documents) which restricts the ability
of the Company or any of its Subsidiaries to (a) enter into amendments,
modifications or waivers of the Loan Documents, (b) sell, transfer or otherwise
dispose of its assets, (c) create, incur, assume or suffer to exist any Lien
upon any of its property, (d) create, incur, assume, suffer to exist or
otherwise become liable with respect to any Indebtedness or (e) make any
Restricted Payment, provided that (i) Capital Leases or agreements governing
purchase money Indebtedness which contain restrictions of the types referred to
in clauses (b) or (c) with respect to the property covered thereby and contracts
entered into the ordinary course of business which contain standard
non-assignment clauses shall be permitted and (ii) restrictions of the types
referred to in clauses (b) through (e) in the Senior Subordinated Debt
Indentures and in any indenture pursuant to which additional Subordinated Debt
is issued as contemplated by Section 6.11(g) shall be permitted.
Section 6.24 FISCAL YEAR; FISCAL QUARTER. The Company shall not, and shall
not permit any of its Subsidiaries to, change its fiscal year or any of its
fiscal quarters.
Section 6.25 AMENDMENT TO OTHER AGREEMENTS. The Company shall not, and
shall cause its Subsidiaries not to, amend, modify or waive any provision of any
Intercompany Demand Notes or any Intercompany Acquisition Notes without the
prior written consent of the Administrative Agent on behalf of the Required
Lenders. The Company shall not, and shall cause its Subsidiaries not to, amend,
restate or otherwise modify or waive any provision of any of the Senior
Subordinated Debt Indentures, any other instrument, document or agreement
executed in connection with any Subordinated Debt without the prior written
consent of the Administrative Agent and the Required Lenders, except, with the
consent of the
46
Administrative Agent (such consent not to be unreasonably withheld), for
changes to cure an ambiguity or inconsistency in any such document.
Section 6.26 SUBSIDIARY OPERATIONS. The Company will not, nor will it
permit any of its Subsidiaries to, activate, make any further Investment in or
contribute any assets to an Excluded Subsidiary and the Company will not permit
any Excluded Subsidiary to incur any Indebtedness or other obligations other
than Indebtedness to the Company existing on the Original Closing Date.
Section 6.27 FCC LICENSES. Neither the Company nor any Excluded
Subsidiary shall obtain or hold, or be licensee under, any FCC Broadcast Station
License.
Section 6.28 [Intentionally Deleted]
Section 6.29 COLLATERAL ASSIGNMENT. The Company shall, and shall cause
each of its Subsidiaries to, enter into and deliver to the Administrative Agent
a Collateral Assignment for each Joint Sales Agreement and each Local Marketing
Agreement to which the Company or any of its Subsidiaries is a party as soon as
practicable, but in any event within thirty days, after such party enters into
any such Joint Sales Agreement or Local Marketing Agreement, respectively, duly
acknowledged by the other party or parties thereto, together with any Uniform
Commercial Code filings required in connection therewith; PROVIDED, HOWEVER,
such Collateral Assignment shall not be required if the Company or any of its
Subsidiaries, as applicable, has (i) taken steps to acquire the other party to
any such Joint Sales Agreement or Local Marketing Agreement through a Permitted
Acquisition and (ii) such Acquisition occurs within 365 days of the execution of
the Joint Sales Agreement or Local Marketing Agreement.
Section 6.30 ACQUISITIONS AND GUARANTEES BY PARENT. Notwithstanding
anything contained herein or in any other Loan Document, the Parent is expressly
permitted (i) to acquire assets directly or have an entity merge into it,
provided the Parent immediately transfers such assets or the assets of the
entity so merged into it to the Company or any of its Wholly-Owned Subsidiaries
and (ii) to Guaranty any obligation of the Company or any of its Wholly-Owned
Subsidiaries, provided the Company or such Subsidiary is permitted to incur such
obligation under the terms of this Agreement and, in the case of any Guaranty of
Indebtedness, that such Guaranty has the same ranking with respect to the Parent
Guaranty as such Indebtedness has with respect to the obligations of the Company
or such Subsidiary in respect of the Loans.
Article VII
DEFAULTS
The occurrence of any one or more of the following events shall constitute
a Default:
Section 7.1 BREACH OF REPRESENTATION OR WARRANTY. Any representation or
warranty made or deemed made by or on behalf of the Parent, the Company or any
of its Subsidiaries to the Lenders or the Administrative Agent under or in
connection with this Agreement, any other Loan Document, or any certificate or
information delivered in connection with this Agreement or any other Loan
Document shall be materially false or misleading on the date as of which made or
deemed made.
Section 7.2 FAILURE TO MAKE PAYMENTS. (a) Nonpayment of principal of any
Loan when due.
(b) Nonpayment of interest upon any Loan or of any fees or other
obligations under any of the Loan Documents within three Business Days after the
same becomes due.
Section 7.3 BREACH OF CERTAIN COVENANTS. The Company shall default in the
due performance or observance of any term, covenant or agreement contained in
(a) Section 6.2 (other than Section 6.2(a)) and such default shall continue
unremedied for a period of 15 days or (b) Section 6.1, 6.4, 6.5, 6.6, 6.7 or 6.8
or the last sentence of Section 6.9 and such default shall continue unremedied
for a period of 30 days.
Section 7.4 OTHER DEFAULTS. The breach by the Company (other than a
breach which constitutes a Default under Section 7.1, 7.2 or 7.3) of any of the
terms or provisions of this Agreement.
Section 7.5 DEFAULT UNDER OTHER AGREEMENTS. Failure of the Parent, the
Company or any of its Subsidiaries to pay any Indebtedness (other than the
Obligations) in excess of $5,000,000 in the aggregate when due; or the default
by the Parent, the Company or any of its Subsidiaries in the performance of any
47
term, provision or condition contained in any agreement under which any such
Indebtedness (other than the Obligations) was created or is governed, the effect
of which is to cause, or to permit the holder or holders of such Indebtedness to
cause, such Indebtedness to become due prior to its stated maturity; or any such
Indebtedness shall be declared to be due and payable or required to be prepaid
(other than by a regularly scheduled or contractually provided for payment
(other than pursuant to an acceleration or similar clause)) prior to the stated
maturity thereof; or there shall occur any default, event of default or other
analogous event entitling any person other than the Company or any Subsidiary to
accelerate any indebtedness, or terminate the purchase of Receivables, under a
Permitted Receivables Sale or under another sale of Receivables transaction
under which the aggregate amount of uncollected Receivables held by the
applicable purchaser exceeds $5,000,000.
Section 7.6 BANKRUPTCY, ETC. The Parent, the Company or any its
Subsidiaries shall (a) have an order for relief entered with respect to it under
the Federal Bankruptcy Code, (b) not pay, or admit in writing its inability to
pay, its debts generally as they come due, (c) make an assignment for the
benefit of creditors, (d) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or similar
official for it or any substantial part of its property, (e) institute any
proceeding seeking an order for relief under the Federal Bankruptcy Code or
seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it,
(f) take any corporate action to authorize or effect any of the foregoing
actions set forth in this Section 7.6 or (g) fail to contest in good faith any
appointment or proceeding described in Section 7.7.
Section 7.7 APPOINTMENT OF RECEIVER. Without the application, approval or
consent of the Company or any of its Subsidiaries, a receiver, trustee,
examiner, liquidator or similar official shall be appointed for the Parent, the
Company or any of its Subsidiaries or any substantial part of its property, or a
proceeding described in Section 7.6(e) shall be instituted against the Parent,
the Company or any of its Subsidiaries and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period
of 60 consecutive days.
Section 7.8 CONDEMNATION, ETC. Any court, government or governmental
agency shall condemn, seize or otherwise appropriate, or take custody or control
of all or any substantial portion of the assets of the Parent, the Company or
any of its Subsidiaries. For purposes of this Section 7.8, "substantial
portion" means assets (valued at the higher of book or fair market value) having
a value in excess of 10% of the consolidated assets of the Company and its
Subsidiaries.
Section 7.9 JUDGMENTS. The Parent, the Company or any of its Subsidiaries
shall fail within 30 days to pay, bond or otherwise discharge any judgment or
order for the payment of money in excess of $10,000,000, which is not stayed on
appeal or otherwise being appropriately and diligently contested in good faith
by appropriate proceedings, unless the payment of all such amounts in excess of
$10,000,000 is fully insured by a financially responsible insurance company.
Section 7.10 ERISA. (a) With respect to any Plan, a Reportable Event
shall have occurred which is reasonably likely to result in the Company or an
ERISA Affiliate being obligated to make aggregate payments in excess of
$4,000,000 (whether or not to the Plan); or
(b) The PBGC, the Company, any ERISA Affiliate or any other Person
shall have initiated steps to terminate a Plan, or to have a trustee appointed
for a Plan under Section 4042 of ERISA, if as the result of such appointment or
termination, the Company or any ERISA Affiliate is reasonably likely to be
required to make a contribution to such Plan, or to incur liability or
obligation to such Plan, or the PBGC, in excess of $4,000,000; or
(c) The Company or any ERISA Affiliate shall have incurred liability
as the result of a termination, reorganization or withdrawal from a
Multiemployer Plan, if as the result of such withdrawal, termination or
reorganization the Company or any ERISA Affiliate incurs a liability to such
Multiemployer Plan in excess of $4,000,000, which liability is not paid when
required by applicable law (unless it is being appropriately and diligently
contested in good faith by appropriate Proceedings); or
(d) The Company or any ERISA Affiliate shall have received any notice
from the PBGC and such notice shall either demand payment from the Company or
any ERISA Affiliate or shall suggest or indicate that the PBGC may initiate an
administrative or judicial action against the Company or any ERISA Affiliate
with respect to Unfunded Liabilities in excess of $4,000,000 of any Plan, or the
48
PBGC shall have initiated an administrative or judicial action with respect to
Unfunded Liabilities in excess of $4,000,000 of any Plan.
Section 7.11 DEFAULT UNDER LOAN DOCUMENTS. The occurrence of any
"default", as defined in any Loan Document (other than this Agreement), or the
breach of any of the terms or provisions of any Loan Document (other than this
Agreement), which default or breach continues beyond any period of grace therein
provided.
Section 7.12 GUARANTEES. Any obligation of any Subsidiary of the Company
under the Subsidiary Guaranty shall fail to remain in full force and effect or
any action shall be taken to discontinue or to assert the invalidity or
unenforceability of any obligation of any Subsidiary of the Company under the
Subsidiary Guaranty, or any Subsidiary of the Company denies that it has any
further liability under any Subsidiary Guaranty to which it is a party, or gives
notice to such effect unless such Subsidiary has been sold in a stock sale
transaction in accordance with the terms hereof. Any obligation of the Parent
under the Parent Guaranty shall fail to remain in full force and effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of any obligation of the Parent under the Parent Guaranty, or
the Parent denies that it has any further liability under the Parent Guaranty,
or gives notice to such effect.
Section 7.13 COLLATERAL DOCUMENTS. Any Collateral Document shall for any
reason fail to create a valid and perfected first priority security interest in
any Collateral purported to be covered thereby, except as permitted by the terms
hereof or of such Collateral Document, or shall fail to remain in full force and
effect, or any action shall be taken to discontinue or to assert the invalidity
or unenforceability of any Collateral Document.
Section 7.14 LICENSES. (a) Any license, authorization, consent or permit
necessary for the ownership or essential for the operation of any of the Radio
Stations or Television Stations by the Company or any of its Subsidiaries (a
"License") shall expire, and on or prior to such expiration, the same shall not
have been or be in the process of being renewed or replaced by another license,
authorization, consent or permit authorizing substantially the same operations
of the Radio Stations or Television Stations by the Company or any of its
Subsidiaries; or
(b) (i) any License (A) shall be canceled, revoked, terminated,
rescinded, annulled, suspended or modified in a materially adverse respect, or
(B) shall no longer be in full force and effect and shall not be in the process
of renewal or replacement or (ii) the grant or the effectiveness of any such
License shall have been stayed, vacated, reversed or set aside, and, in each
case, such action shall be no longer subject to further administrative or
judicial review; or
(c) in any renewal or revocation proceeding involving any license
necessary for the ownership or essential for the operation of any of the Radio
Stations or Television Stations, any administrative law judge of the FCC (or
successor to the functions of an administrative law judge of the FCC) shall have
issued an initial decision to the effect that the Company or any of its
Subsidiaries lacks the qualifications to hold any FCC broadcast license, and
such initial decision shall not have been timely appealed or shall otherwise
have become an order that is final and no longer subject to further
administrative or judicial review or such administrative law judge shall issue a
favorable determination on such matters, which determination shall subsequently
be reversed on appeal;
PROVIDED, HOWEVER that none of the foregoing events described in this
Section 7.14 shall constitute a Default if, assuming final non-appealable loss
by the Company or any of its Subsidiaries of any such license at the conclusion
of all legal proceedings incident thereto, such loss would, individually or in
the aggregate with any such other losses after the Original Closing Date, not
result in the loss of a License or Licenses for Radio Stations or Television
Stations which generate in the aggregate in excess of 10% of the Broadcast Cash
Flow of the Company and its Subsidiaries on a consolidated basis, provided that
such percentage shall be calculated for the four-quarter period ended
immediately prior to the date on which any such loss of a License or Licenses
occurs and each such quarterly calculation shall be aggregated with all such
other percentage calculations with respect to any other Licenses lost from and
after the Original Closing Date.
Section 7.15 LIENS. Any Person shall take any action to enforce,
foreclose upon or take similar action with respect to any Lien (whether or not
permitted by the terms of this Agreement) on any material item or amount of
Collateral or on any material asset of the Parent, the Company or its
Subsidiaries.
49
Section 7.16 CHANGE OF CONTROL. If (a) the Parent shall cease to own, free
and clear of all Liens except as contemplated by the Parent Pledge Agreement,
100% of the issued and outstanding capital stock of the Company, (b) so long as
any Subordinated Debt remains outstanding, any event or condition exists or
arises which constitutes a "Change of Control" under any such Subordinated Debt,
(c) so long as any Liquid Yield Option Notes remain outstanding, any event or
condition exists or arises which constitutes a "Change of Control" as defined in
the Liquid Yield Option Notes Indenture or (d) Xxxx or Z/C shall at any time
fail to have its designees constitute at least 30% in number of the members of
the Parent's board of directors.
Section 7.17 PREPAYMENT OR REDEMPTION WITH RESPECT TO CERTAIN
INDEBTEDNESS. If (a) the Parent shall become obligated to make an offer or
otherwise makes an offer to purchase or to redeem any Liquid Yield Option Notes
or any portion thereof in cash prior to the maturity thereof (except for
obligations in connection with any cash payments due with respect to any
fractional shares of Common Stock of the Parent) for any reason or (b) the
Company shall become obligated to make an offer to purchase or to redeem any
Senior Subordinated Debt or any other Subordinated Debt or any portion thereof
prior to the maturity thereof or the Parent or any Subsidiary of the Company
shall become obligated with respect thereto.
Section 7.18 Intentionally Deleted
Article VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
Section 8.1 ACCELERATION. If any Default described in Section 7.6 or 7.7
shall occur with respect to the Company or the Parent, all the Commitments and
the obligation of the Lenders to make Loans hereunder shall automatically and
immediately terminate and the unpaid principal amount of the Loans and all of
the other Obligations shall automatically and immediately become due and payable
without any election or action on the part of the Administrative Agent or any
Lender and without presentment, demand, protest or notice or any other
requirement of any kind, all of which the Company hereby expressly waives. If
any other Default shall occur and be continuing, upon the direction of the
Required Lenders the Administrative Agent shall, (i) declare that all the
Commitments are terminated, whereupon all the Commitments and the obligation of
the Lenders to make Loans hereunder shall be immediately terminated and
(ii) declare the unpaid principal amount of the Loans and the other Obligations
to be due and payable, whereupon the same shall immediately be and become due
and payable, without, presentment, demand, protest or notice or any other
requirement of any kind, all of which the Company hereby expressly waives. If
any Default shall occur and be continuing, upon direction of the Required
Lenders, the Administrative Agent shall require the Company to Cash
Collateralize the Letters of Credit in an amount equal to the maximum aggregate
amount that is, or at any time thereafter may become, available for drawing
under any outstanding Letters of Credit (whether or not any beneficiary shall
have presented, or shall be entitled at such time to present the drafts or other
documents required to draw under such Letters of Credit).
Section 8.2 AMENDMENTS. Subject to the provisions of this Article VIII
and except as otherwise provided in any Loan Document, amendments or agreements
supplemental hereto and thereto may be entered into for the purpose of adding or
modifying any provisions of this Agreement or any of the other Loan Documents or
changing in any manner the rights of the Lenders or the Parent, the Company or
any of its Subsidiaries hereunder or thereunder or waiving any Default hereunder
or thereunder ("Amendments"), under the terms and in the manner set forth below:
(a) With respect to Amendments that forgive or reduce principal or
interest or reduce the interest rate payable with respect to any Loan or
Obligation or postpone any date fixed for any regularly-scheduled payment (other
than with respect to prepayments under clauses (b) through (e) of Section 2.8)
of principal of, or interest on, any such Loan or Obligation, postpone any
Revolving Loan Commitment Reduction Date or any Term Loan Payment Date, increase
the amount of the Aggregate Revolving Loan Commitment, the aggregate amount of
the Term Loan Commitments, postpone the Revolving Loan Termination Date, the
Term Loan Maturity Date, reduce any Revolving Loan Commitment Reduction Amount,
change the definition of Leverage Ratio (to the extent that the same would
affect the Applicable Margin) or amend or waive Section 2.4 (or amend the
definition of any of the terms used in such Section to the extent that the same
would affect the Applicable Margin), amend or waive Section 12.1 hereof or waive
the payment of or reduce or defer any fees payable to the Lenders hereunder,
consent to or permit the assignment or transfer by the Parent, the Company or
any of its
50
Subsidiaries of any of its rights or obligations under any of the Loan
Documents, amend or waive this Section 8.2, change the definition of
"Amendment," reduce the percentage specified in the definition of Required
Lenders or any other percentage of Lenders specified to be the applicable
percentage in this Agreement or any other Loan Document to act on specified
matters or release any guarantor (except in connection with a Disposition
permitted under Section 6.13 of a Wholly-Owned Subsidiary) or release all or any
substantial portion of the Collateral from the Liens created by the Collateral
Documents (except in connection with any Disposition permitted under
Section 6.13 and as may otherwise be expressly contemplated in the Loan
Documents) or indirectly achieve any of the foregoing by means of any amendment
of the definition of "Revolving Loan Commitment Reduction Amount" or any
amendment or waiver of Section 2.2(iii), or Section 2.8(a), all of the Lenders
must approve such Amendments in writing; PROVIDED, that nothing contained in
this Section 8.2(a) shall restrict the ability of the Required Lenders to make
determinations provided in the definition of Operating Cash Flow;
(b) With respect to Amendments that delay or reduce the amount of any
mandatory prepayment or Revolving Loan Commitment Reduction Amount pursuant to
any mandatory prepayment hereunder (other than as set forth in Section 8.2(a)),
Lenders whose Pro Rata Shares in the aggregate are at least 66-2/3% must approve
such Amendment in writing;
(c) With respect to Amendments that (i)(A) modify the pro rata nature
of prepayment requirements with respect to any of the Lenders under this
Agreement, (B) modify the ratable sharing of prepayments or (C) modify the
ratable sharing of proceeds from the Collateral among any of the Lenders under
this Agreement and (ii) adversely affect Lenders holding any class of Loans,
Lenders holding such class of Loans representing not less than 51% of the
aggregate amount of such class of Loans must approve such Amendments in writing;
(d) [Intentionally Deleted]
(e) With respect to any other Amendment, the Lenders then
constituting the Required Lenders must approve such Amendment in writing.
No amendment of any provision of this Agreement or any other Loan Document
relating to any Agent shall be effective without the written consent of such
Agent including, without limitation, any provision of Article X.
Section 8.3 PRESERVATION OF RIGHTS. No delay or omission of the Lenders,
the Issuing Banks or the Agents to exercise any right under the Loan Documents
shall impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of a Loan notwithstanding the existence of
a Default or the inability of the Company to satisfy the conditions precedent to
such Loan shall not constitute any waiver or acquiescence. Any single or
partial exercise of any such right shall not preclude any other or further
exercise thereof or the exercise of any other right, and no waiver, amendment or
other variation of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by the Company, the Parent,
its Subsidiary(ies) party thereto and the Agents and by the Lenders required
pursuant to Section 8.2, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Agents, the
Issuing Banks and the Lenders until the Obligations have been paid in full.
Article IX
GENERAL PROVISIONS
Section 9.1 SURVIVAL OF REPRESENTATIONS. All representations and
warranties of the Company contained in this Agreement shall survive delivery of
this Agreement and shall continue in full force and effect until the Obligations
have been paid in full.
Section 9.2 GOVERNMENTAL REGULATION. Anything contained in this Agreement
to the contrary notwithstanding, no Lender or Issuing Bank shall be obligated to
extend credit to the Company in violation of any or provided by any applicable
statute or regulation.
Section 9.3 TAXES. Any stamp, documentary and similar taxes and taxes in
connection with the execution, delivery, filing or recordation of any of the
Loan Documents shall be paid by the Company.
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Section 9.4 HEADINGS. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
Section 9.5 ENTIRE AGREEMENT. The Loan Documents embody the entire
agreement and understanding among the Company, its Subsidiaries, the Parent, the
Agents, the Issuing Banks and the Lenders and supersede all prior agreements and
understandings among the Company, its Subsidiaries, the Parent, the Agents, the
Issuing Banks and the Lenders relating to the subject matter thereof.
Section 9.6 SEVERAL OBLIGATIONS. The respective obligations of the
Lenders and the Issuing Banks hereunder are several and not joint and no Lender
or Issuing Bank shall be the partner or agent of any other (except to the extent
to which the Agents are authorized to act as such). The failure of any Lender
or Issuing Bank to perform any of its obligations hereunder shall not relieve
any other Lender or Issuing Bank from any of its obligations hereunder. This
Agreement shall not be construed so as to confer any right or benefit upon any
Person other than the parties to this Agreement and their respective successors
and assigns.
Section 9.7 EXPENSES, INDEMNIFICATION. The Company shall reimburse
(i) each Agent for any reasonable costs, internal charges and out-of-pocket
expenses (including attorneys' fees and time charges of attorneys for such
Agent, which attorneys may be employees of such Agent) paid or incurred by such
Agent in connection with the negotiation, documentation, preparation, review,
execution, delivery, amendment, modification and administration of this
Agreement and the other Loan Documents (including without limitation, reasonable
costs and out-of-pocket expenses incurred in connection with post-closing UCC
searches and the analysis thereof) or any other documents reasonably required to
be reviewed or prepared in connection herewith or therewith and all
out-of-pocket expenses incurred by such Agent in connection with the taking and
perfection of Liens on the Collateral (including, without limitation, title and
lien searches, surveys, title commitment and insurance costs, filing fees and
documentary, stamp, filing and similar taxes and corporate search fees),
(ii) all reasonable out-of-pocket expenses incurred by any Issuing Bank in
connection with the issuance, amendment, renewal or extension of any Letter of
Credit, (iii) each Agent, each of the Lenders and each Issuing Bank for any
reasonable costs, internal charges and out-of-pocket expenses (including
attorneys' fees and time charges of attorneys for each Agent and the Lenders and
the Issuing Banks, which attorneys may be employees of any Agent or any Lender
or any Issuing Bank) paid or incurred by any Agent or any Lender or any Issuing
Bank in connection with the collection and enforcement or amendment or
modification of the Loan Documents or any restructuring in respect of the
Obligations or the Loans made or Letters of Credit issued hereunder and any
Agent or any Lender or any Issuing Bank for any cost and expense of obtaining
any appraisals in respect of the assets of the Company or any of its
Subsidiaries, to the extent any Lender or any Issuing Bank determines that such
appraisals are required by any law or any governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law), or any
interpretation thereof, including, without limitation, the provisions of Title
XI of the Financial Institutions Reform, Recovery and Enforcement Act of 1969,
and any rules promulgated to implement such provisions. The Company further
agrees to indemnify each Agent, each Lender and each Issuing Bank, and their
respective directors, trustees, officers, attorneys, agents, and employees for,
and hold each of them harmless against, all losses, claims (including, without
limitation, all Environmental Claims), damages, penalties, judgments,
liabilities, actions, proceedings, costs and expenses (including, without
limitation, all attorneys' fees and legal expenses incurred by any of them and
other expenses of litigation or preparation therefor whether or not any suit or
proceeding is brought or, if so, whether or not any Agent or any Lender or any
Issuing Bank is a party thereto) which any of them may pay or incur arising out
of or relating to this Agreement, the other Loan Documents, the transactions
contemplated hereby or thereby (including, without limitation, the transactions
occurring on or prior to the Effectiveness Date) or any act, event or omission
related hereto or thereto or the direct or indirect application or proposed
application of any Letter of Credit or the proceeds of any Loan hereunder;
PROVIDED, HOWEVER, that no such Agent, Lender, Issuing Bank, director, trustee,
officer, attorney, agent or employee shall have a right to be indemnified or
held harmless hereunder for its own gross negligence or willful misconduct as
finally determined in a judgment of a court of competent jurisdiction. The
obligations of the Company under this Section shall survive the repayment of the
Obligations and the termination of this Agreement.
Section 9.8 NUMBERS OF DOCUMENTS. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Administrative Agent
with sufficient counterparts so that the Administrative Agent may furnish one to
each of the Lenders and Issuing Banks.
Section 9.9 ACCOUNTING. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles, except that any calculation or determination which is to be made on
a consolidated basis shall be made for the Company and all of its Subsidiaries,
including those Subsidiaries,
52
if any, which are unconsolidated on the Parent's audited financial statements.
In the event that Generally Accepted Accounting Principles change after the
Original Closing Date in any manner that would cause the result of the
calculation of any financial ratio under Agreement Accounting Principles
pursuant to Section 6.3 to be materially different than the result that would
have been obtained had Generally Accepted Accounting Principles been applied in
such calculation, the Company, the Agents and the Lenders hereby agree to
negotiate in good faith to amend this Agreement to accommodate the Company's
desire not to maintain two sets of financial records.
Section 9.10 SEVERABILITY OF PROVISIONS. Any provision in any Loan
Document that is held to be inoperative, unenforceable or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable or
invalid without affecting the remaining provisions in that jurisdiction or the
operation, enforceability or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
Section 9.11 NON-LIABILITY OF LENDER. The relationship between the
Company and the Lenders and the Agents shall be solely that of borrower and
lender. None of any Agent, any Issuing Bank or any Lender shall have any
fiduciary responsibilities to the Company. None of any Agent, any Issuing Bank
or any Lender undertakes any responsibility to the Company to review or inform
the Company of any matter in connection with any phase of the Company's business
or operations.
Section 9.12 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
Section 9.13 CONSENT TO JURISDICTION. THE COMPANY HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW
YORK STATE COURT SITTING IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE COMPANY HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF ANY AGENT OR LENDER TO BRING PROCEEDINGS
AGAINST THE COMPANY IN THE COURTS OF ANY OTHER JURISDICTION. THE COMPANY WAIVES
PERSONAL SERVICE OF ANY PROCESS UPON IT AND, AS ADDITIONAL SECURITY FOR THE
OBLIGATIONS, IRREVOCABLY APPOINTS CT CORPORATION SYSTEM, WHOSE ADDRESS IS 0000
XXXXXXXX, XXX XXXX, XXX XXXX 00000, AS ITS AGENT FOR THE PURPOSE OF ACCEPTING
SERVICE OF PROCESS ISSUED BY ANY COURT.
Section 9.14 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart. This Agreement shall be effective when it has been exhibited by
the Company, the Agents, the Issuing Banks and the Lenders and the Company, each
Agent, each Issuing Bank and each Lender have delivered to the Administrative
Agent executed counterpart signature pages hereto or a facsimile of such
executed counterpart signature page.
Section 9.15 LIMITATION OF RIGHTS. Notwithstanding any other provision of
this Agreement, any foreclosure on, sale, transfer or other disposition of, or
the exercise of any right to vote or consent with respect to, any of the
collateral purported to be covered by any Collateral Document as provided herein
or in any Collateral Document or any other action taken or proposed to be taken
by any Agent, any Issuing Bank or any Lender hereunder or thereunder which would
affect the operational, voting, or other control of the Parent, the Company or
any of its Subsidiaries, shall be pursuant to Section 310 of the Communications
Act and to the applicable rules and regulations thereunder and, if and to the
extent required thereby, subject to the prior consent of the FCC.
Section 9.16 LIMITATION OF LIABILITY. No claim may be made by the Parent,
the Company, any of its Subsidiaries or any other Person against any Agent, any
Issuing Bank or any Lender or the Affiliates, directors, trustees, officers,
employees, attorneys or agent of any of them for any special, indirect,
consequential or punitive damages in respect of any claim for breach of contract
or any other theory of liability arising out of or related to the transactions
contemplated by this Agreement or any other transactions (including, without
limitation, any transactions occurring on or prior to the Effectiveness Date),
or any act, omission or event occurring in connection therewith; and the Company
53
(for itself and each of its Subsidiaries) hereby waives, releases and agrees not
to xxx upon any claim for any such damages, whether or not accrued and whether
or not known or suspected to exist in its favor and the Company (for itself, the
Parent, and each of its Subsidiaries) agrees to notify each Agent, each Issuing
Bank and each Lender, as applicable, of any such claim promptly upon learning of
any such claim.
Section 9.17 DESIGNATION OF OBLIGATIONS AS SENIOR DEBT. The Obligations
are hereby expressly designated "Senior Debt" under, pursuant to and as such
term is defined in each of the Senior Subordinated Debt Indentures, for the
purpose of making the Obligations senior in right of payment to the Senior
Subordinated Debt and any Guarantee with respect thereto.
Article X
THE AGENTS
Section 10.1 APPOINTMENT. The Chase Manhattan Bank is hereby appointed as
Administrative Agent hereunder and under the other Loan Documents, and each of
the Lenders and each of the other Agents authorizes the Administrative Agent to
act as the agent of such Lender and such Agents. Banque Paribas is hereby
appointed as Documentation Agent hereunder and under the other Loan Documents,
and each of the Lenders and each of the other Agents authorizes the
Documentation Agent to act as the documentation agent of such Lender and such
Agents. Bank of America is hereby appointed as Syndication Agent hereunder and
under the other Loan Documents, and each of the Lenders and each of the other
Agents authorizes the Syndication Agent to act as the syndication agent of such
Lender and such Agents. Each Agent agrees to act as such upon the express
conditions contained in this Article X and the other Loan Documents. Each of
the Lenders authorizes the Administrative Agent to execute each of the
Collateral Documents and the financing statements and other documents and
instruments related thereto on behalf of such Lender (the terms of which shall
be binding on such Lender). No Agent shall have a fiduciary relationship in
respect of any Lender by reason of this Agreement or any other Loan Document.
Section 10.2 POWERS. Each Agent shall have and may exercise such Powers
hereunder and under the other Loan Documents as are specifically delegated to
such Agent by the terms hereof or thereof, together with such powers as are
reasonably incidental thereto. No Agent shall have any duties to the Lenders,
or any obligation to the Lenders to take any action hereunder or under any other
Loan Documents except any action specifically provided by this Agreement or such
other Loan Document to be taken by such Agent. No Co-Agent or Lead Manager
shall have any rights or obligations under the Loan Documents except in its
capacity as a Lender.
Section 10.3 GENERAL IMMUNITY. Neither any Agent nor any of their
respective directors, officers, agents, attorneys or employees shall be liable
to the Lenders or any Lender for any action taken or omitted to be taken by it
or them hereunder or under any other Loan Document or in connection herewith or
therewith except for its or their own gross negligence or willful misconduct as
finally determined in a judgment of a court of competent jurisdiction.
Section 10.4 NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. No Agent shall
be responsible to the Lenders for any recitals, reports, statements, warranties
or representations herein or in any other Loan Document or be bound to ascertain
or inquire as to the performance or observance of any of the terms of this
Agreement or any other Loan Document.
Section 10.5 ACTION ON INSTRUCTIONS OF LENDERS. Each Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder and
under the other Loan Documents in accordance with written instructions signed by
the Required Lenders, or, if applicable, the Lenders required pursuant to
Article VIII hereof, and such instructions and any action taken or failure to
act pursuant thereto shall be binding on all of the Lenders.
Section 10.6 EMPLOYMENT OF AGENTS AND COUNSEL. Each Agent may execute any
of its duties as the applicable Agent hereunder or under the other Loan
Documents by or through employees, agents, and attorneys-in-fact and shall not
be answerable to the Lenders for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. Each Agent shall be
entitled to advice of counsel concerning all matters pertaining to the agency
created hereby and by the other Loan Documents and its duties hereunder and
thereunder.
Section 10.7 RELIANCE ON DOCUMENTS; COUNSEL. Each Agent shall be entitled
to rely upon any notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be
54
genuine and correct and to have been signed or sent by the proper Person or
Persons, and, in respect of legal matters, upon the advice or opinion of counsel
selected by such Agent which counsel may be employees of such Agent.
Section 10.8 AGENT'S REIMBURSEMENT AND INDEMNIFICATION. Each Lender
agrees to reimburse and indemnify each Agent for its Pro Rata Share (i) of any
amounts not reimbursed by the Company or any of its Subsidiaries for which such
Agent is entitled to reimbursement by the Company or any of its Subsidiaries
under the Loan Documents, (ii) of any other expenses incurred by such Agent on
behalf of the Lenders, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents and (iii) of any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against such Agent in any way relating to or
arising out of this Agreement, any other Loan Document or any other document
delivered in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby or thereby by the enforcement of any of the
terms hereof or of any other Loan Document or of any such other documents,
provided that no Lender shall be liable for any of the foregoing to the extent
they arise from the gross negligence or willful misconduct of any Agent or as
finally determined in a final judgment of a court of competent jurisdiction.
Section 10.9 RIGHTS AS A LENDER. With respect to the Loans made or
Letters of Credit issued by it and the other Obligations owing to it, each Agent
shall have the same rights and powers hereunder as any Lender or Issuing Bank
and may exercise the same as though it were not such Agent and the term
"Lender", "Lenders", "Issuing Bank" or "Issuing Banks" shall, unless the context
otherwise indicates, include each Agent in its individual capacity. Each Agent
may accept deposits from, lend money to, and generally engage in any kind of
banking or trust business with, the Parent, the Company or any of its
Subsidiaries as if it were not an Agent.
Section 10.10 LENDER DECISIONS. Each Lender and Issuing Bank acknowledges
that it has, independently and without reliance upon any Agent or any other
Lender or Issuing Bank and based on the financial statements prepared by the
Company and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and the
other Loan Documents. Each Lender or Issuing Bank also acknowledges that it
will, independently and without reliance upon any Agent or any other Lender and
Issuing Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement and the other Loan Documents.
Section 10.11 SUCCESSOR AGENT. Any Agent may resign at any time by giving
ten (10) days prior written notice thereof to the Lenders and the Company,
effective upon the expiration of such ten (10) days, and any Agent may be
removed at any time with or without cause by written notice received by such
Agent from the Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint on behalf of the Lenders a
successor Agent which successor Agent shall, absent the occurrence and
continuance of a Default or Unmatured Default, be consented to by the Company
(which consent shall not be unreasonably withheld). If no successor Agent shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within ten (10) days after the retiring Agent's giving notice of
resignation, then the retiring Agent may appoint on behalf of the Lenders a
successor Agent which successor Agent shall, absent the occurrence and
continuance of a Default or Unmatured Default, be acceptable to the Company.
Such successor Agent shall be a commercial bank having capital and retained
earnings of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent and the retiring Agent shall be discharged from any
further duties and obligations hereunder and under the other Loan Documents.
After any retiring Agent's resignation hereunder as Agent, the provisions of
this Article X shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent
hereunder and under the other Loan Documents.
Section 10.12 COLLATERAL RELEASES. Provided that no Default or Unmatured
Default shall exist, the Company and its Subsidiaries may from time to time sell
or otherwise dispose of certain of the Collateral as permitted by the terms of
Section 6.13 (subject to compliance by the Company and its Subsidiaries with
Section 2.8) and, upon the written request of the Company, the Administrative
Agent shall at the Company's expense release the security interest of the
Administrative Agent in the Collateral which is to be sold or otherwise disposed
of by the Company or any such Subsidiary in accordance with the terms of
Section 6.13. The Lenders hereby empower and authorize the Administrative Agent
to execute and deliver to the Company or any of its Subsidiaries any such
agreements, documents or
55
instruments as shall be necessary or appropriate to effect any such release and
any other releases of Collateral which shall have been approved by the Lenders
in writing, in accordance with Section 8.2.
Article XI
SETOFF; RATABLE PAYMENTS
Section 11.1 SETOFF. In addition to, and without limitation of any rights
of the Lenders under applicable law, if the Company becomes insolvent, however
evidenced, or any Default shall occur and be continuing, any indebtedness from
any Lender to the Company (including all account balances), whether provisional
or final and whether or not collected or available may be offset and applied
toward the payment of the Obligations owing to such Lender, whether or not the
Obligations, or any part thereof, shall then be due.
Section 11.2 RATABLE PAYMENTS. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Loans in a greater proportion than
that received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a participation in the Loans held by the other Lenders so that after
such purchase each Lender will hold its ratable proportion of Loans. If any
Lender, whether in connection with setoff or amounts which might be subject to
setoff or otherwise, receives collateral or other protection for its Obligations
or such amounts which may be subject to setoff, such Lender agrees, promptly
upon demand, to take such action as shall be necessary such that all Lenders
share in the benefits of such collateral ratably in proportion to their Loans.
In case any such payment is disturbed by legal process, or otherwise,
appropriate further adjustments shall be made.
Article XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
Section 12.1 SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Company, the
Agents, the Issuing Banks and the Lenders and their respective successors and
assigns, except that the Parent, the Company and its Subsidiaries shall not have
the right to assign its rights or delegate its duties or obligations under the
Loan Documents, and any assignment by any Lender must be made in compliance with
Section 12.3. Any request, authority or consent of any Person, who at the time
of making such request or giving such authority or consent is a Lender, shall be
conclusive and binding on any subsequent transferee or assignee of such Lender.
Section 12.2 PARTICIPATIONS.
12.2.1. PERMITTED PARTICIPANTS; EFFECT. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time sell
to one or more banks or other entities ("Participants") participating interests
in any Loan made by such Lender or any other interest of such Lender under the
Loan Documents, provided that any such Participant shall agree in writing to be
bound by Sections 12.4 and 12.5. In the event of any such sale by a Lender of
participating interests to a Participant, such Lender's obligations under the
Loan Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
such Lender shall remain the Lender in respect of such interests for all
purposes under the Loan Documents, and the Company and the Agents shall continue
to deal solely and directly with such Lender in connection with such Lender's
rights and obligations under the Loan Documents, provided that such Lender shall
provide notice to the Company of such sale to a Participant which is not an
Affiliate of such selling Lender, a Lender or an Affiliate thereof following any
such sale and such Lender shall comply with Sections 12.4 and 12.5 with respect
to confidential information.
12.2.2. VOTING RIGHTS. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification or
waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Loan or Obligation in which such
Participant has an interest which postpones any date fixed for any
regularly-scheduled payment of principal (including a Revolving Loan Commitment
Reduction Date) or postpones the final maturity of any of the Loans, forgives
principal or interest or reduces the interest rate payable with respect to any
such Loan or Obligation, releases any guarantor of any such Loan or Obligation
or releases all or substantially all of the Collateral securing any such Loan or
Obligation.
12.2.3. BENEFIT OF SETOFF AND INDEMNITIES. The Company agrees that each
Participant shall be deemed to have the right of setoff provided in Section 11.1
in respect of its participating interest in
56
amounts owing under the Loan Documents to the same extent as if the amount of
its participating interest were owing directly to it as a Lender under the Loan
Documents, provided that each Lender shall retain the right of setoff provided
in Section 11.1 with respect to the amount of participating interests sold to
each Participant, except to the extent such Participant has exercised its right
of setoff. The Lenders agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in Section 11.1, agrees
to share with each Lender, any amount received pursuant to the exercise of its
right of setoff, in accordance with Section 11.2 as if each Participant were a
Lender. The Company also agrees that each Participant shall be entitled to the
benefits of Sections 3.1 and 3.2 with respect to its participation; provided,
that no Participant shall be entitled to receive any greater amount pursuant to
such Sections than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such Participant had no such transfer occurred.
Section 12.3 ASSIGNMENTS.
12.3.1 PERMITTED ASSIGNMENTS. Any Lender may, in the ordinary course of
its business and in accordance with applicable law, at any time, assign to one
or more banks or other entities ("Purchasers") all or any part of its rights and
obligations under the Loan Documents; PROVIDED that any partial assignment of
any Lender's rights and obligation hereunder shall be either for all of such
Lender's rights and obligations under the Loan Documents or shall be in a
minimum principal amount of $5,000,000 of such Lender's Loans and/or Commitments
and such Lender shall comply with Sections 12.4 and 12.5 with respect to
confidential information. Such assignment (other than an assignment to the
Federal Reserve Bank) shall be substantially in the form of Exhibit M hereto.
The consent of the Administrative Agent and, unless a Default has occurred and
is continuing, the consent of the Company (such consent of the Administrative
Agent and the Company not to be unreasonably withheld), shall be required prior
to an assignment becoming effective with respect to a Purchaser which is not a
Lender, an Affiliate thereof or a Federal Reserve Bank. In addition, in the
case of any assignment of any interest in any Revolving Loan Commitment or any
Letter of Credit, the consent of each Issuing Bank (not to be unreasonably
withheld) shall be required prior to such assignment becoming effective. Such
consents shall be substantially in the form attached as Schedule I to Exhibit M
(a "Notice of Assignment") hereto and shall not be unreasonably withheld or
delayed.
12.3.2 EFFECT; EFFECTIVE DATE. After delivery to the Administrative Agent
of a Notice of Assignment with a copy to the Company, together with any consents
required by Section 12.3.1, and payment of a $3,500 fee to the Administrative
Agent for processing such assignment, such assignment shall become effective on
the effective date specified in such Notice of Assignment. On and after the
effective date of such assignment, such Purchaser shall for all purposes be a
Lender party to this Agreement and the other Loan Documents and shall have all
the rights and obligations of a Lender under the Loan Documents, to the same
extent as if it were an original party hereto, and no further consent or action
by the Company, the Lenders or the Administrative Agent shall be required to
release the transferor Lender (and such transferor Lender shall be released)
with respect to the percentage of the obligations assigned to such Purchaser.
After the effective date of any assignment, the Administrative Agent shall
provide notice thereof to the Company.
12.3.3 TAX TREATMENT. If any interest in any Loan Document is transferred
to any Transferee (other than a then-existing Lender) which is organized under
the Laws of any jurisdiction other than the United States or any State thereof,
the transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, (i) to represent to the transferor Lender for
the benefit of the transferor Lender, the Agents and the Company) that, under
applicable law and treaties in effect at such time, no taxes will be required to
be withheld by the Administrative Agent, the Company or the transferor Lender
with respect to any payments to be made to such Transferee in respect of the
Loans, (ii) to furnish to the transferor Lender, the Administrative Agent and
the Company either U.S. Internal Revenue Service Form 4224 or U.S. Internal
Revenue Service Form 1001 (wherein such Transferee claims entitlement to
complete exemption from U.S. federal withholding tax on all interest payments
hereunder) and an Internal Revenue Service Form W-8 or W-9 or successor
appropriate forms wherein such Transferee claims exemption from United States
back-up withholding tax) and (iii) to agree (for the benefit of the transferor
Lender, the Administrative Agent and the Company) to provide the transferor
Lender, the Administrative Agent and the Company a new Form 4224 or Form 1001 or
Form W-8 or W-9 upon the obsolescence of any previously delivered form and
comparable statements in accordance with applicable U.S. laws and regulations
and amendments duly executed and completed by such Transferee, and to comply
from time to time with all applicable U.S. laws and regulations with regard to
such withholding and back-up withholding tax exemptions.
Section 12.4 DISSEMINATION OF INFORMATION. The Company authorizes each
Lender to disclose to any Participant, Purchaser, Interest Rate Hedge Provider,
institution party to an agreement in respect
57
of the transfer of economic risk of any Lender's obligations to the Company
through the use of credit swaps or other such instruments or any other Person
acquiring an interest in the obligations, any portion thereof or the Loan
Documents by operation of law (each Transferee), and any prospective Transferee,
any and all information in such Lender's possession concerning the
creditworthiness of the Parent or the Company; provided that each Transferee and
prospective Transferee agrees to be bound by Section 12.5; and provided further,
that each Lender agrees to provide to the Company notice of the identity of such
Transferee or prospective Transferee (other than a Transferee which is an
Affiliate of a selling Lender, a Lender or an Affiliate of a Lender) at least
four days prior to the delivery of an agreement with respect to confidentiality
required by Section 12.5 to any Transferee or prospective Transferee.
Section 12.5 CONFIDENTIALITY. Each Lender agrees to hold any information
designated as confidential which it may receive from the Company pursuant to
this Agreement in confidence, except for disclosure: (i) to other Lenders,
(ii) to legal counsel, accountants, and other professional advisors to such
Lender, (iii) to regulatory officials, (iv) as required by law, regulation,
legal process, or in connection with any legal proceeding, (v) information which
has previously been made public and (vi) in connection with an actual or
proposed sale, assignment, participation or other disposition or proposed
disposition of such Lender's interests hereunder not prohibited by this
Agreement (including, without limitation, a transfer of economic risk of any
Lender's obligations to the Company through the use of credit swaps or other
such instruments) provided that the assignee, proposed assignee, participant,
proposed participant or other Transferee or proposed Transferee shall have
agreed in a Writing delivered by such Lender to the Company to be bound by this
Section 12.5.
Article XIII
NOTICES
Section 13.1 GIVING NOTICE. Any notice required or permitted to be given
under this Agreement may be, and shall be deemed, given, if mailed, three days
after the date when deposited in the United States mail, postage prepaid, or if
by telegraph, when delivered to the appropriate office for transmission, charges
prepaid, or if by personal delivery or by facsimile, when received, addressed to
the Company (with copies to Xxxxxx X. X'Xxxxxxx, Xx., Xxxxxxx Head & Xxxxxxx,
1900 Fifth Third Center, 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, provided,
however, that the failure to provide any such copies shall not affect the
validity or sufficiency of any such notice), the Lenders, the Agents or the
Issuing Banks at the addresses indicated below their signatures to this
Agreement with, in the case of any notice to the Administrative Agent, a copy
thereof to The Loan and Agency Services Group, 8th floor, Xxx Xxxxx Xxxxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx (fax: 000-000-0000)
and to Chase Securities Inc., 00 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000-0000, Attention: Xxxxx Xxxxxxxxxxx (fax: 000-000-0000).
Section 13.2 CHANGE OF ADDRESS. The Company, any Agent, any Issuing Bank
and any Lender may each change the address for service of notice upon it by a
notice in writing to the other parties hereto.
Article XIV
WAIVER OF JURY TRIAL
THE COMPANY, EACH AGENT, ANY ISSUING BANK AND EACH LENDER HEREBY WAIVE
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT
OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP
ESTABLISHED THEREUNDER.
IN WITNESS WHEREOF, the Company, the Lenders and the Agents have executed
this Agreement as of the date first above written.
58
JACOR COMMUNICATIONS COMPANY
By
--------------------------------
Title
------------------------------
00 X. XxxxxXxxxxx Xxxx.
00xx Xxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: R. Xxxxxxxxxxx Xxxxx
THE CHASE MANHATTAN BANK,
Individually and as Administrative
Agent and Issuing Bank
By
--------------------------------
Title
------------------------------
THE CHASE MANHATTAN BANK
Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
BANQUE PARIBAS,
Individually and as Documentation
Agent and Issuing Bank
By
--------------------------------
Title
------------------------------
By
--------------------------------
Title
------------------------------
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxx
Banque Paribas, Media Group
Equitable Tower
000 0xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxx
Xxxx Xxxxxxx
59
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION (as successor
by merger to Bank of America
Illinois),
Individually and as Syndication
Agent and Issuing Bank
By
--------------------------------
Title
------------------------------
000 Xxxxx Xx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
60
