1
Exhibit 4.(b)
CREDIT AGREEMENT
DATED AS OF March 28, 2001
AMONG
SAGA COMMUNICATIONS, INC.,
CERTAIN OF ITS SUBSIDIARIES,
THE LENDERS PARTY HERETO,
FLEET NATIONAL BANK as Agent,
FLEET SECURITIES, INC. as Arranger
AND
THE BANK OF NEW YORK, as Syndication Agent
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TABLE OF CONTENTS
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ARTICLE I. Definitions; Designation of Unrestricted Subsidiaries................. 2
Section 1.1. Definitions........................................................... 2
Section 1.2. General Provisions Pertaining to Definitions.......................... 34
Section 1.3. Designation of Unrestricted Subsidiaries;
Certain Obligations Respecting Restricted Subsidiaries............... 34
ARTICLE II. Commitments; Loans; Collateral........................................ 36
Section 2.1. Loans................................................................. 36
Section 2.2. Notices Relating to Loans;
Requests for Eurodollar Loans....................................... 38
Section 2.3. Disbursement of Loan Proceeds......................................... 39
Section 2.4. Notes................................................................. 39
Section 2.5. Mandatory Principal Payments.......................................... 40
Section 2.6. Reduction or Termination of Commitments;
Voluntary Payments.................................................. 45
Section 2.7. Interest.............................................................. 45
Section 2.8. Fees.................................................................. 46
Section 2.9. Use of Proceeds of Loans.............................................. 47
Section 2.10. Computations.......................................................... 48
Section 2.11. Minimum Amounts of Borrowings, Conversions and
Prepayments......................................................... 48
Section 2.12. Time and Method of Payments........................................... 48
Section 2.13. Lending Offices....................................................... 49
Section 2.14. Several Obligations................................................... 49
Section 2.15. Security.............................................................. 49
Section 2.16. Pro Rata Treatment Among Lenders...................................... 50
Section 2.17. Non-Receipt of Funds by Agent......................................... 51
Section 2.18. Sharing of Payments and Set-Off Among Lenders......................... 51
Section 2.19. Conversion of Loans; Continuation of Loans............................ 52
Section 2.20. Additional Costs; Capital Requirements................................ 52
Section 2.21. Limitation of Types of Loans.......................................... 55
Section 2.22. Illegality............................................................ 55
Section 2.23. Certain Conversions Pursuant to
Sections 2.20 and 2.22.............................................. 55
Section 2.24. Indemnification....................................................... 56
Section 2.25. Waiver of Claims...................................................... 57
Section 2.26. Assignment and Reassignment of Existing Loans......................... 57
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ARTICLE III. Letters of Credit..................................................... 58
Section 3.1. Letter of Credit Commitment........................................... 58
Section 3.2. Issuance of Letters of Credit......................................... 58
Section 3.3. Participation by Lenders.............................................. 59
Section 3.4. Letter of Credit Disbursements........................................ 60
Section 3.5. Obligation to Repay Letter of Credit
Disbursements, etc.................................................. 61
Section 3.6. Letter of Credit Fees................................................. 62
Section 3.7. Letter of Credit Applications......................................... 62
ARTICLE IV. Representations and Warranties........................................ 62
Section 4.1. Organization, Etc..................................................... 62
Section 4.2. Power; Authority; Consents; No Conflicts.............................. 63
Section 4.3. Due Execution, Validity and Enforceability............................ 64
Section 4.4. Priority of Liens; Condition of Assets................................ 64
Section 4.5. Judgments, Actions, Proceedings....................................... 65
Section 4.6. No Defaults; Compliance with Laws..................................... 65
Section 4.7. Burdensome Documents.................................................. 65
Section 4.8. Governing Documents................................................... 65
Section 4.9. Financial Information................................................. 65
Section 4.10. No Material Changes................................................... 66
Section 4.11. Taxes................................................................. 66
Section 4.12. Intangible Assets..................................................... 66
Section 4.13. Licenses and Approvals................................................ 66
Section 4.14. Environmental Compliance.............................................. 67
Section 4.15. Employee Benefit Plans................................................ 67
Section 4.16. Labor Disputes; Collective Bargaining Agreements;
Employee Grievances................................................. 68
Section 4.17. Insurance............................................................. 69
Section 4.18. Absence of Certain Restrictions....................................... 69
Section 4.19. Ancillary Documents................................................... 69
Section 4.20. Solvency.............................................................. 69
Section 4.21. Application of Certain Laws and Regulations........... ............... 70
Section 4.22. Year 2000 Problem..................................................... 70
Section 4.23. No Material Real Property; No Material Intellectual
Property............................................................ 70
Section 4.24. Full Disclosure....................................................... 70
ARTICLE V. Conditions to Credit Extensions....................................... 71
Section 5.1. Conditions to Initial Credit Extensions............................... 71
Section 5.2. Conditions Precedent to Each Credit Extension......................... 75
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ARTICLE VI. Guaranty.............................................................. 76
Section 6.1. Guaranty of Payment................................................... 76
Section 6.2. Waivers of Notice, Etc................................................ 77
Section 6.3. Election of Remedies.................................................. 78
Section 6.4. Expenses.............................................................. 78
Section 6.5. Unenforceability of Obligations....................................... 79
Section 6.6. Subrogation Rights; Subordination
of Subrogation Rights............................................... 79
Section 6.7. Limitation on Obligations............................................. 80
ARTICLE VII. Delivery of Financial Reports,
Documents and Other Information................................... 80
Section 7.1. Annual Financial Statements........................................... 80
Section 7.2. Quarterly Financial Statements........................................ 81
Section 7.3. Compliance Information................................................ 81
Section 7.4. Accountants' Reports.................................................. 81
Section 7.5. Copies of Documents................................................... 82
Section 7.6. Annual Budget......................................................... 82
Section 7.7. Additional Information................................................ 82
ARTICLE VIII. Affirmative Covenants................................................. 83
Section 8.1. Payment and Performance of
Obligations......................................................... 83
Section 8.2. Conduct of Business................................................... 83
Section 8.3. Books and Records..................................................... 84
Section 8.4. Inspections and Audits................................................ 84
Section 8.5. Insurance............................................................. 85
Section 8.6. Notice of Defaults, Litigation; Etc,.................................. 86
Section 8.7. ERISA Notices......................................................... 86
Section 8.8. No Termination of Loan
Documents, Etc...................................................... 86
Section 8.9. Environmental Laws.................................................... 87
Section 8.10. [Intentionally deleted]............................................... 87
Section 8.11. Governmental Approvals................................................ 87
Section 8.12. Collateral for Loans.................................................. 87
Section 8.13. Dividends............................................................. 88
Section 8.14. Appraisals............................................................ 88
Section 8.15. Permitted Acquisitions................................................ 88
Section 8.16. Further Assurances.................................................... 89
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ARTICLE IX. Negative Covenants.................................................... 89
Section 9.1. Indebtedness.......................................................... 90
Section 9.2. Liens................................................................. 90
Section 9.3. Mergers, Consolidations, Sales of Assets.............................. 91
Section 9.4. Investments........................................................... 94
Section 9.5. Restricted Payments................................................... 96
Section 9.6. Issuance of Capital Stock............................................. 97
Section 9.7. Sale and Leaseback.................................................... 97
Section 9.8. ERISA Compliance...................................................... 97
Section 9.9. Amendment or Termination of Documents................................. 97
Section 9.10. Restrictive Agreements................................................ 98
Section 9.11. Transactions with Affiliates.......................................... 98
Section 9.12. Limitation on Operation of Saga Real Estate........................... 98
ARTICLE X. Financial Covenants................................................... 99
Section 10.1. Maximum Total Funded Debt Leverage Ratio.............................. 99
Section 10.2. Pro Forma Fixed Charges Coverage Ratio................................ 99
Section 10.3. Minimum Interest Coverage Ratio....................................... 99
Section 10.4. General Provisions Relating to
Financial Terms and Covenants....................................... 100
ARTICLE XI. Events of Default; Acceleration....................................... 101
Section 11.1. Events of Default..................................................... 101
Section 11.2. Termination of Commitments;
Acceleration of Obligations......................................... 104
Section 11.3. No Implied Waivers; Rights Cumulative................................. 105
Section 11.4. Letters of Credit..................................................... 105
ARTICLE XII. The Agent............................................................. 106
Section 12.1. Appointment, Powers and Immunities.................................... 106
Section 12.2. Reliance by Agent..................................................... 106
Section 12.3. Events of Default..................................................... 107
Section 12.4. Rights as a Lender.................................................... 107
Section 12.5. Indemnification....................................................... 107
Section 12.6. Non-Reliance on Agent and Other Lenders............................... 108
Section 12.7. Failure to Act........................................................ 108
Section 12.8. Resignation or Removal of Agent....................................... 108
Section 12.9. Sharing of Collateral and Payments.................................... 109
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ARTICLE XIII. Miscellaneous Provisions.............................................. 110
Section 13.1. Fees and Expenses; Indemnity.......................................... 110
Section 13.2. Taxes................................................................. 112
Section 13.3. Survival of Agreements and Representations;
Construction........................................................ 112
Section 13.4. Modifications, Consents and Waivers;
Entire Agreement.................................................... 112
Section 13.5. Remedies Cumulative................................................... 115
Section 13.6. Further Assurances.................................................... 115
Section 13.7. Notices............................................................... 115
Section 13.8. Counterparts.......................................................... 117
Section 13.9. Severability.......................................................... 117
Section 13.10. Binding Effect; No Assignment or Delegation
by Borrower..................................................... 117
Section 13.11. Assignments and Participations by
Lenders......................................................... 117
Section 13.12. FCC Approval.......................................................... 122
Section 13.13. Usury Provision....................................................... 122
Section 13.14. Certain Lien Releases................................................. 123
Section 13.15. Confidentiality....................................................... 123
Section 13.16. Governing Law; Consent to Jurisdiction;
Waiver of Trial by Jury......................................... 123
Section 13.17. Integration of Schedules and Exhibits................................. 124
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LIST OF SCHEDULES AND EXHIBITS
SCHEDULES DESCRIPTION
--------- -----------
4.1 Organization; Capitalization
4.2 Approvals and Consents
4.4(A) Priority of Liens
4.5 Litigation
4.7 Burdensome Documents
4.11 Taxes
4.13 FCC Licenses
4.14 Environmental Compliance
4.15 Employee Benefit Plans
4.16 Labor Disputes; Collective Bargaining Agreements
4.17 Insurance
8.2 Location of the Company's Executive Offices and
Location of the Principal Places of Business of
Each Principal Company
8.2(a) Local Marketing Agreements
8.2.(b) Brokerage Agreements
9.1(i) Existing Indebtedness
9.2 Liens
9.3 Corporate Structure and Organization
9.4(h) Investments
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EXHIBITS DESCRIPTION
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A-1 Form of Revolving Credit Note
A-2 Form of Term Loan Note
A-3 Form of Acquisition Loan Note
A-4 Form of Incremental Facility Loan Note
B Form of Indemnity, Subrogation and Contribution
Agreement
C Form of Effective Date Certificate
D Form of Assignment and Acceptance Agreement
E Form of Collateral Trust Agreement
F Form of Borrower Security Agreement
G Form of Borrower Stock Pledge Agreement
H Form of Borrower Subsidiary Security Agreement
I Form of Lakefront Membership Interest Pledge
Agreement
J Form Lakefront Stock Pledge Agreement
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT is made as of March 28, 2001, by and among (1)
SAGA COMMUNICATIONS, INC., a Delaware corporation (the "Borrower"); (2) the
Subsidiaries of the Borrower party hereto; (3) the various financial
institutions which are now, or in accordance with Section 13.11 hereafter
become, parties hereto as Lenders (individually, a "Lender" and collectively,
the "Lenders"); (4) FLEET NATIONAL BANK, a national banking association, as
administrative and documentation agent for the Lenders (the "Agent"); and (5)
THE BANK OF NEW YORK, as syndication agent (the "Syndication Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested the Agent and the Lenders to
provide the Borrower with senior secured revolving credit, term loan and
acquisition loan facilities (collectively, the "Initial Facilities") in the
maximum aggregate principal amount of $200,000,000, consisting of a senior
secured term loan facility in the aggregate principal amount of $105,000,000, a
senior secured revolving credit facility in the aggregate principal amount of
$20,000,000, and a senior secured multiple-draw acquisition loan facility in the
aggregate principal amount of $75,000,000;
WHEREAS, the Borrower has further requested the Agent and the Lenders
to consider providing the Borrower with an additional credit facility (the
"Incremental Facility") in the aggregate principal amount of up to $50,000,000;
and
WHEREAS, the Agent and the Lenders are willing, subject to the terms
and conditions set forth herein to provide to the Borrower the Initial
Facilities and to consider providing to the Borrower the Incremental Facility;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS; DESIGNATION OF
UNRESTRICTED SUBSIDIARIES
Section 1.1. Definitions. As used in this Agreement, the following
terms shall have the following meanings:
"Acquisition" - shall mean any transaction, or any series of related
transactions, consummated on, prior to, or after the date of this Agreement, in
which the Borrower or any Restricted Subsidiary (in one transaction or as the
most recent transaction in a series of transactions) (i) acquires any
Communications System, any business or all or substantially all of the assets of
any Person or any division or business unit thereof, whether through
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xxxxxxxx of assets, merger or otherwise, (ii) directly or indirectly acquires
control of at least a majority (in number of votes) of the Capital Stock of a
Person which have ordinary voting power for the election of directors or other
governing body or (iii) directly or indirectly acquires control of a majority
ownership interest in any partnership, joint venture or limited liability
company.
"Acquisition Documents" - all agreements, documents and instruments
executed and/or delivered in connection with any Acquisition, including the
Scheduled Acquisitions.
"Acquisition Loan Commitment" - with respect to a Lender, the
commitment of such Lender to make Acquisition Loans to the Borrower in the
amount set forth on Schedule 1 hereto, as the same may be reduced from time to
time or terminated in accordance with the terms hereof.
"Acquisition Loan Commitment Fees" - as defined in Subsection 2.8(b).
"Acquisition Loan Commitment Period" - the period from and including
the Effective Date to the earlier to occur of (i) the day before the Conversion
Date and (ii) the termination of the Acquisition Loan Commitments.
"Acquisition Loan Payment Date" - as defined in Subsection 2.5(c).
"Acquisition Loans" - as defined in Subsection 2.1(b).
"Acquisition Loan Notes" - as defined in Subsection 2.4 (c).
"Additional Costs" - as defined in Subsection 2.20 (b).
"Affected Loans" - as defined in Section 2.23.
"Affected Type" - as defined in Section 2.23.
"Affiliate" - any Person that directly or indirectly controls, or is
under common control with, or is controlled by, the Borrower. As used in this
definition, "control" (including, with its correlative meanings, "controlled by"
and "under common control with") shall mean possession, directly or indirectly,
of power to direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership interests, by
contract or otherwise), provided that, in any event, any Person that owns
directly or indirectly securities having 5% or more of the voting power for the
election of directors or other governing body of a corporation or 5% or more of
the partnership or other ownership interests of any other Person (other than as
a limited partner of such other Person) will be deemed to control such
corporation or other Person. Notwithstanding the foregoing, (a) no wholly-owned
Restricted Subsidiary of the Borrower shall be an Affiliate and (b) neither the
Agent, nor any Lender, shall be an Affiliate.
"Agent" - as defined in the preamble hereof.
"Agent's Fee" - the Agent's fee payable from time to time by the
Borrower to the Agent, for the Agent's own account, as provided in the Fee
Letter.
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"Agent's Special Counsel" - Xxxxxxx Xxxx LLP and such other counsel as
the Agent may from time to time retain as special counsel in connection with the
financing arrangements contemplated by or arising under the Loan Documents.
"Agreement" - this Credit Agreement, including the Schedules and
Exhibits hereto.
"Ancillary Documents" - collectively, (i) the Seller Debt Documents and
(ii) the Acquisition Documents.
"Applicable Lending Office" - with respect to each Lender, with respect
to each type of Loan, the lending office as designated for such type of Loan
below its name on the signature pages hereof or such other office of such Lender
or of an affiliate of such Lender as such Lender may from time to time specify
to the Agent and the Borrower as the office at which its Loans of such type are
to be made and maintained.
"Applicable Margin" - for any calendar quarter, the applicable
percentage set forth in the table below opposite the Total Funded Debt Leverage
Ratio as of the end of the Most Recent Reference Period prior to the
commencement of such calendar quarter:
APPLICABLE MARGINS
Total Funded Debt Applicable Margin Applicable Margin
Leverage Ratio for Base Rate Loans for Eurodollar Loans
-------------- ------------------- --------------------
Greater than or equal to 5.0:1.0 1.000% 2.000%
Less than 5.0:1.0 but greater 0.750% 1.750%
than or equal to 4.0:1.0
Less than 4.0:1.0 but greater 0.625% 1.625%
than or equal to 3.5:1.0
Less than 3.5:1.0 but greater 0.500% 1.500%
than or equal to 3.0:1.0
Less than 3.0:1.0 0.250% 1.250%
Notwithstanding the foregoing, in the event that the Lenders shall not have
received the most recent financial statements and certificates required to be
delivered to them pursuant to Article VII prior to the first day of such
calendar quarter, the Applicable Margins for such calendar quarter shall (until
all of such financial statements and certificates are delivered to the Lenders)
be the highest of the Applicable Margins specified above.
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"Xxxxxxxx" - Xxxxx Securities, Inc., acting as exclusive arranger in
connection with the arranging of the Facilities.
"Asset" - any asset, property, interest (including equity interests) or
effect, real or personal, tangible or intangible, wherever situated.
"Assigning Lender" - as defined in Subsection 13.11(b).
"Assignment" - as defined in Subsection 13.11(b).
"Assignment and Acceptance Agreement" - as defined in Subsection
13.11(b).
"Available Acquisition Loan Commitments" - at any time, an amount equal
to the excess, if any, of (i) the aggregate Acquisition Loan Commitments at such
time over (ii) the aggregate outstanding Acquisition Loans at such time.
"Available Revolving Credit Commitments" - at any time, an amount equal
to the excess, if any, of (i) the aggregate Revolving Credit Commitments at such
time over (ii) the Revolving Credit Outstandings at such time.
"Balance Sheet Date" - December 31, 2000.
"Base Rate" - a fluctuating rate of interest per annum equal to the
greater of (i) the rate established by the Agent from time to time at its office
in Boston as its "base rate" and (ii) the Federal Funds Rate plus 1/2%; in each
case, including any applicable adjustments for reserves or FDIC requirements.
The Base Rate is not necessarily intended to be the lowest rate of interest
determined by the Agent in connection with extensions of credit.
"Base Rate Loans" - Loans which bear interest at a rate based upon the
Base Rate.
"Borrower" - as defined in the preamble hereof.
"Borrower Affiliated Companies" - collectively, the Borrower and each
of its Subsidiaries.
"Borrower Security Agreement" - the Borrower Security Agreement, dated
as of the Effective Date, by and between the Borrower and the Collateral
Trustee, substantially in the form attached hereto as Exhibit F.
"Borrower Stock Pledge Agreement" the Borrower Stock Pledge Agreement,
dated as of the Effective Date, by and between the Borrower and the Collateral
Trustee, substantially in the form attached hereto as Exhibit G.
"Borrower Subsidiary Security Agreement" - the Borrower Subsidiary
Security Agreement, dated as of the Effective Date, by and among the Restricted
Subsidiaries and the Collateral Trustee, substantially in the form attached
hereto as Exhibit H.
"Borrowing Notice" - as defined in Section 2.2.
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"Business Day" - any day other than Saturday, Sunday or any other day
on which commercial banks in Boston are authorized or required to close.
"Capital Expenditures" - as to any Person for any period, the sum of
all amounts which would, in accordance with GAAP consistently applied, be
included as additions to property, plant and equipment and other capital
expenditures on a consolidated statement of cash flows for such Person for such
period.
"Capital Stock" - any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all similar ownership interests in any Person which is not a corporation,
and any and all warrants, options or other rights to acquire any of the
foregoing.
"Capitalized Lease" - any lease or similar instrument the obligations
to pay rent or other amounts under which constitute Capitalized Lease
Obligations.
"Capitalized Lease Obligations" - as to any Person, the obligations of
such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) real and/or personal property which obligations are
required to be classified and accounted for as a capital lease on a balance
sheet of such Person under GAAP and, for purposes of this Agreement, the amount
of such obligations shall be the capitalized amount thereof, determined in
accordance with GAAP.
"Cash" - as to any Person, such Person's cash and cash equivalents, as
defined in accordance with GAAP.
"CERCLA" - the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Change in Control" - shall be deemed to have occurred if: (i) any
Person (other than a Permitted Holder) or any group (within the meaning of
Section 13(d)(3) of the Exchange Act) of Persons (other than any Permitted
Holders) shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Exchange Act),
directly or indirectly, in one or more transactions, of Capital Stock of the
Borrower (including other Capital Stock convertible into such Capital Stock)
representing 35% or more of the combined voting power of all Capital Stock of
the Borrower (on a fully-diluted basis) entitled to vote in the election of
directors, other than Capital Stock having such power only by reason of the
happening of a contingency, or (ii) a change in the composition of the board of
directors of the Borrower shall have occurred such that a majority of the
members of the board of directors are not Continuing Directors.
"Chief Financial Officer" - Xx. Xxxxxx X. Xxxx or such other individual
as may perform the duties of "chief financial officer" (as commonly understood)
of the Borrower.
"Christian" - Xxxxxx X. Xxxxxxxxx.
"Christian Note" - the promissory note dated December 10, 1992, in the
original principal amount of $690,700, issued by Christian to the Borrower, as
amended by the First
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Amendment to Promissory Note, dated as of December 6, 1995, between the Borrower
and Christian.
"Class A Common Stock" - the Class A Common Stock of the Borrower, par
value $.01 per share.
"Class B Common Stock" - the Class B Common Stock of the Borrower, par
value $.01 per share.
"Closing Costs" - for any period, all fees and costs (including legal,
accounting, appraisal, environmental site assessments and travel fees and costs)
incurred by the Borrower or any of its Restricted Subsidiaries in connection
with the financing contemplated by this Agreement or any Permitted Acquisition,
in each case to the extent expensed during such period.
"Code" - the Internal Revenue Code of 1986, as it may be amended from
time to time.
"Collateral" - collectively, all of the agreements, instruments,
contracts, assets, accounts, moneys and all of the income, proceeds and products
of any thereof, under or in respect of which the Agent or the Collateral
Trustee, for the benefit of the Lenders, shall have, at the time of reference to
the term "Collateral", any rights or interests as security for the payment or
performance of all or any part of the Obligations and shall, in any event,
include the Collateral (as defined in the respective Security Documents).
"Collateral Trust Agreement" - the Collateral Trust Agreement, dated as
of the Effective Date, by and among the Collateral Trustee, the Lenders, the
Issuing Bank and the Agent, and countersigned by the Principal Companies,
substantially in form attached hereto as Exhibit E.
"Collateral Trustee" - Fleet, or any other Person succeeding to the
duties of Collateral Trustee under the Collateral Trust Agreement.
"Commitment Fees" - collectively, the Acquisition Loan Commitment Fees
and the Revolving Credit Commitment Fees.
"Commitments" - as to any Lender, collectively, such Lender's (i)
Revolving Credit Commitment, (ii) Term Loan Commitment, (iii) Acquisition Loan
Commitment and (iv) Incremental Facility Commitment of each Series of
Incremental Facility Loans.
"Common Stock" - collectively, (i) the Class A Common Stock, (ii) the
Class B Common Stock and (iii) any other Permitted Capital Stock having economic
attributes substantially equivalent to the Class A Common Stock and the Class B
Common Stock.
"Communications Act" - the Federal Communications Act of 1934, as
amended, and the rules and regulations of the FCC thereunder, as now or
hereafter in effect.
"Communications System" - all of the properties and operating rights
constituting a complete, fully integrated system for transmitting radio or
television signals from a
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transmitter licensed by the FCC, together with any subsystem which is ancillary
to such system, and including any radio or television network.
"Consolidated or consolidated" - as to any term used in this Agreement,
the relevant figures for any Person and its Subsidiaries on a consolidated basis
determined in accordance with GAAP after eliminating all intercompany items and
minority interests.
"Consolidated Adjusted Net Income" - for any period, net earnings (or
loss) of the Borrower and its Restricted Subsidiaries determined on a
consolidated basis in accordance with GAAP, but excluding: (i) any net gain or
loss arising from the sale of capital assets; (ii) any gain arising from any
write-up of assets; (iii) net earnings of any Person (other than a wholly-owned
Restricted Subsidiary of the Borrower) in which the Borrower or any of its
Subsidiaries has an ownership interest (other than any such net earnings which
have actually been received by the Borrower or wholly-owned Restricted
Subsidiary in the form of cash distributions); (iv) any extraordinary earnings
or extraordinary losses, as such terms are interpreted under GAAP; (v) any
interest or other non-operating income of the Borrower or any of its
Subsidiaries; (vi) the effect of all barter transactions for such period; and
(vii) proceeds of any Interest Rate Contracts.
"Consolidated Current Assets"- as of any date, all assets (other than
Cash) of the Borrower and its Restricted Subsidiaries on a consolidated basis
that, in accordance with GAAP, are properly classified as current assets as of
such date.
"Consolidated Current Liabilities" - as of any date, all liabilities of
the Borrower and its Restricted Subsidiaries on a consolidated basis properly
classified as current liabilities in accordance with GAAP (other than the
current portion of long-term Indebtedness for Borrowed Money, and calculated
without regard to (i) any repayment of Revolving Credit Loans with Net Proceeds
and (ii) any borrowing of Revolving Credit Loans the proceeds of which are used
to finance any Permitted Acquisition).
"Consolidated EBITDA" - for any period (subject to any adjustments
required by Section 10.4 and determined on a consolidated basis in accordance
with GAAP), Consolidated Adjusted Net Income for such period plus (A) (to the
extent, but only to the extent, the following amounts have reduced Consolidated
Adjusted Net Income for such period) the sum of (without duplication) (i)
Consolidated Total Interest Expense of the Borrower and its Restricted
Subsidiaries for such period, (ii) the aggregate amount of all federal, state
and local income taxes accrued by the Borrower and its Restricted Subsidiaries
for such period, (iii) the aggregate amount of depreciation and amortization
expense (including programming amortization expense) of the Borrower and its
Restricted Subsidiaries for such period, (iv) the aggregate amount of Closing
Costs, if any, incurred by the Borrower and its Restricted Subsidiaries during
such period, to the extent that such costs are non-recurring, and (v) the
aggregate amount of any non-cash charges of the Borrower during such period
relating to the issuance or vesting of stock options granted by the Borrower to
its employees or directors minus (B) the sum of (i) the aggregate amount of all
cash television programming payments made by the Borrower and its Restricted
Subsidiaries during such period and (ii) the aggregate amount of any cash
payments made by the Borrower during such period relating to any non-cash
charges described in clause (A)(v) of this definition.
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"Consolidated Total Funded Debt" - at any time, on a consolidated
basis, all Indebtedness for Borrowed Money of the Borrower and its Restricted
Subsidiaries at such time, determined in accordance with GAAP. The aggregate
amount of Consolidated Total Funded Debt at any time shall include all accrued
interest which has become due and payable but has not been paid (whether or not
capitalized) and the accreted amount of any Subordinated Debt issued with
original issue discount.
"Consolidated Total Interest Expense" - for any period (subject to any
adjustments required by Section 10.4), without duplication, the sum of (i) the
interest expense of the Borrower and its Restricted Subsidiaries for such
period, (ii) the interest component of Capitalized Lease Obligations of the
Borrower and its Restricted Subsidiaries for such period, and (iii) all
Commitment Fees, Letter of Credit Fees and similar fees payable by the Borrower
and its Restricted Subsidiaries during such period in respect of Consolidated
Total Funded Debt; in each case determined on a consolidated basis in accordance
with GAAP.
"Consolidated Working Capital" - as of any date, the excess of
Consolidated Current Assets over Consolidated Current Liabilities as of such
date.
"Continuing Directors" - as of any date of determination, any member of
the Board of Directors of the Borrower who (i) was a member of such Board of
Directors on the Effective Date or (ii) was nominated for election or elected to
such Board of Directors either with the affirmative vote of a majority of the
directors who were either members of such Board of Directors on the Effective
Date or whose nomination or election was previously so approved.
"Contractual Obligations" - as to any Person, any provision of any
note, debenture or security issued by such Person or of any agreement,
indenture, mortgage, instrument or other undertaking to which such Person is a
party or by which it or any of its property is bound.
"Conversion Date" - March 28, 2003.
"Copyright" - collectively, all of the following, to the extent that
any Principal Company now or hereafter has any right, title or interest therein:
(i) all copyright rights in any work subject to the copyright laws of the United
States or any other country, whether as author, assignee, licensee, transferee
or otherwise, and (ii) all registrations and applications for registration of
any such copyright in the United States or any other country, as well as all
registrations, recordings, supplemental registrations and pending applications
for registration in the United States Copyright Office or the copyright office
of any other country.
"Copyright Security Agreements" - collectively, the Memoranda of Grant
of Security Interest in Copyrights from time to time entered into by and between
the Collateral Trustee and one or more of the Principal Companies with respect
to Material Federal Copyrights
"Credit Extensions" - collectively, (i) any Loan and (ii) any Letter of
Credit.
"Default" - an event which, with notice or lapse of time, or both,
would constitute an Event of Default.
17
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"Default Notice" - as defined in Subsection 8.5(a).
"Default Rate" - with respect to any amounts payable hereunder or under
any of the other Loan Documents, a rate per annum equal to 2% above the rate of
interest otherwise applicable to such amounts.
"Distribution" - as to any Person, any direct or indirect: (i)
declaration or payment of any dividend on or in respect of any Capital Stock of
such Person (except, in the case of the Borrower, a dividend payable solely in
shares of Permitted Capital Stock); (ii) redemption, purchase or other
retirement or acquisition of any Capital Stock of such Person, through a
Subsidiary of such Person or otherwise; (iii) return of capital by such Person
to its shareholders or other equityholders as such; or (iv) other distribution
on or in respect of any Capital Stock of such Person (except, in the case of the
Borrower, any distribution made by the Borrower solely in shares of Permitted
Capital Stock in connection with any stock split or reverse stock split).
"Dollars" and "$" - lawful money of the United States of America.
"Drawdown Date" - the date on which any Credit Extension is made or is
to be made.
"Effective Date" - the date on which each of the conditions precedent
set forth in Section 5.1 hereof shall have been waived or satisfied and the
initial Credit Extensions are made hereunder.
"Effective Date Certificate" - a certificate, to be dated as of the
Effective Date, executed and delivered to the Agent by the Borrower,
substantially in the form attached hereto as Exhibit C.
"Employee Benefit Plan or Plan" - any employee benefit plan within the
meaning of Section 3(3) of ERISA maintained or contributed to by any Principal
Company or any ERISA Affiliate, other than a Multiemployer Plan.
"Environmental Laws" - any judgment, decree, order, law, license, rule
or regulation pertaining to environmental matters, including without limitation
those arising under the Resource Conservation and Recovery Act ("RCRA"), CERCLA,
the Superfund Amendments and Reauthorization Act of 1986 ("XXXX"), the Federal
Clean Water Act, the Federal Clean Air Act, the Toxic Substances Control Act,
any state or local statute, regulation, ordinance, order or decree relating to
health, safety or the environment, or any law or regulation of any foreign
jurisdiction outside the United States relating to health, safety or the
environment.
"Environmental Liability" - any liability under any Environmental Laws
for any release of a Hazardous Substance, and any liability for the costs of any
clean up or other remedial action.
"Environmental Matter(s)" - a release of any Hazardous Substance into
the environment or the generation, treatment, storage or disposal of any
Hazardous Substance.
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"Environmental Proceeding" - any judgment, action, proceeding or
investigation pending before any Governmental Authority, including any
environmental regulatory body, with respect to or threatened against or
affecting any Borrower Affiliated Company or relating to the Assets or
liabilities of any of them, including in respect of any "facility" owned, leased
or operated by any of them under CERCLA or under any Requirement of Law in
respect thereof, or in connection with any release of any Hazardous Substance or
the generation, storage or disposal of any Hazardous Substance.
"ERISA" - the Employee Retirement Income Security Act of 1974, as it
may be amended from time to time, and the regulations promulgated thereunder.
"ERISA Affiliate" - any Person which is treated as a single employer
with the Borrower and its Subsidiaries under Section 414 of the Code.
"ERISA Reportable Event" - a reportable event with respect to a
Guaranteed Pension Plan within the meaning of Section 4043 of ERISA.
"Eurocurrency Reserve Requirements" - for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates (expressed as
a decimal fraction) of reserve requirements in effect on such day (including
basic, supplemental, marginal and emergency reserves under any regulations of
the Board of Governors of the Federal Reserve System or other Governmental
Authority having jurisdiction with respect thereto) prescribed for eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
such Board) maintained by a member bank of such System.
"Eurodollar Base Rate" - with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the average interest rate per annum
(rounded upward, if necessary, to the nearest 1/16th of 1%) at which the Agent
is offered Dollar deposits at or about 10:00 a.m., Boston time, two (2) Business
Days prior to the beginning of such Interest Period in the Eurodollar Interbank
Market where the eurodollar and foreign currency and exchange operations in
respect of its Eurodollar Loans are then being conducted for delivery on the
first day of such Interest Period, for the number of days comprised therein and
in an amount comparable to the amount of its Eurodollar Loan to be outstanding
during such Interest Period.
"Eurodollar Business Day" - a Business Day on which dealings in Dollar
deposits are carried out in the Eurodollar Interbank Market.
"Eurodollar Interbank Market" - any lawful offshore market in which
deposits of Dollars are offered by foreign branches of U.S. banking institutions
and by foreign banking institutions to each other.
"Eurodollar Loans" - Loans the rate of interest applicable to which is
determined on the basis of the Eurodollar Rate.
"Eurodollar Rate" - with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for such day
in accordance with the following formula (rounded upward, if necessary, to the
nearest 1/100th of 1%):
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Eurodollar Base Rate
--------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default" - as defined in Article XI hereof.
"Excess Cash Flow" - for any period, Consolidated EBITDA for such
period minus, without duplication, the sum of (i) federal, state and local
income taxes of the Borrower and its Subsidiaries for such period paid in cash
by the Borrower or any of its Restricted Subsidiaries (other than any such taxes
referred to in clause (ii) of the definition of Net Proceeds) during such
period, (ii) all Capital Expenditures of the Borrower and its Restricted
Subsidiaries made and permitted hereunder during such period (other than any
such Capital Expenditures made with proceeds of Indebtedness permitted by
Section 9.1(c) hereof and other than Capital Expenditures made in completing a
Permitted Acquisition), (iii) Consolidated Total Interest Expense for such
period required to be paid in cash by the Borrower or any of its Restricted
Subsidiaries during such period, (iv) the aggregate amount of mandatory
permanent payments or prepayments of principal of Consolidated Total Funded Debt
during such period (other than any Net Proceeds Payments or Excess Cash Flow
Payments), (v) the excess (if any) of Consolidated Working Capital as at the
last day of such period over Consolidated Working Capital as at the day before
the first day of such period and (vi) $1,000,000.
"Excess Cash Flow Payment" - as defined in Subsection 2.5(e).
"Exchange Act" - the Securities and Exchange Act of 1934, as amended.
"Existing Credit Agreement" - The Second Amended and Restated Credit
Agreement, dated as of December 30, 1998 (as heretofore amended, restated, or
otherwise modified and in effect immediately prior to the date hereof) among the
Borrower, certain Subsidiaries of the Borrower, certain lenders party thereto
and Fleet as agent for such lenders.
"Facilities" - collectively, the Initial Facilities and the Incremental
Facility.
"FASB" - the Financial Accounting Standards Board, and its predecessor
and successor organizations.
"FCC" - the Federal Communications Commission, or any successor agency,
commission, bureau, department or other Governmental Authority.
"FCC Licenses" - any radio, television or other license, permit,
certificate of compliance, franchise, approval or authorization granted or
issued by the FCC.
"FDIC" - the Federal Deposit Insurance Corporation or any successor
thereof.
"Federal Funds Rate" - for any period, a fluctuating interest rate per
annum (based on a 365 day or 366 day year, as the case may be) equal for each
day during such period to the average of the rates of interest charged on
overnight federal funds transactions, with member banks of the Federal Reserve
System only, as published for any day which is a
20
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Business Day by the Federal Reserve Bank of New York (or, in the absence of such
publication, as reasonably determined by the Agent).
"Fee Letter" - the letter agreement, dated as of February 15, 2001, by
and among the Agent, the Arranger and the Borrower regarding payment of certain
fees by the Borrower to the Agent and the Arranger.
"Fees" - collectively, (i) the Agent's Fee, (ii) the Commitment Fees,
(iii) the Letter of Credit Fees, and (iv) any fees (other than closing fees)
payable by the Borrower in connection with the Incremental Facility Loans or
Incremental Facility Loan Commitments.
"Final" - as to an action by the FCC or its staff, the date on which
the time for rehearing, reconsideration, review or appeal of such action shall
have expired without objection or claim by any Person.
"Financial Statements" - any financial statements from time to time
delivered by the Borrower to the Agent or to any Lender pursuant to the
provisions of this Agreement, including any financial statements and schedules
thereto delivered by the Borrower on the Effective Date. As used herein,
"Financial Statements" do not include any Projections.
"Fleet" - Fleet National Bank, a national banking association organized
under the laws of the United States of America.
"GAAP" - when used in Article X hereof, whether directly or indirectly
by reference to a capitalized term used therein, principles which are consistent
with (i) the principles promulgated or adopted by FASB, as in effect on the
Balance Sheet Date, and (ii) the accounting practices of Borrower and its
Subsidiaries reflected in the consolidated financial statements of the Borrower
and its Subsidiaries as at and for the quarter ended on the Balance Sheet Date.
When used in general, other than as provided above, principles which are (i)
consistent with the principles promulgated or adopted by FASB, as in effect from
time to time, and (ii) consistently applied with past consolidated financial
statements of the Borrower and its Subsidiaries adopting the same principles. In
the event of any material change in the principles promulgated or adopted by
FASB after the Balance Sheet Date, the Borrower, the Agent and the Lenders will
undertake in good faith to negotiate appropriate changes to this definition of
GAAP and Article X hereof with the objective of having the Borrower's compliance
with the provisions of Article X determined by reference to GAAP as in effect
after such change, rather than GAAP as in effect on the Balance Sheet Date.
Until such changes have been agreed to in writing by the Borrower and the
Required Lenders, the definition of GAAP and the provisions of Article X shall
remain unchanged and in full force and effect.
"Governing Documents" - as to any Person, the articles or certificate
of incorporation or certificate of formation and by-laws or limited liability
company agreement or other organizational documents of such Person.
"Governmental Authority" - any nation or government, any state or other
political subdivision thereof, and any entity exercising any executive,
legislative, judicial, regulation, or administrative functions of or pertaining
to government.
21
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"Guarantor(s)" - the Subsidiaries of the Borrower party to this
Agreement and any other Subsidiary of the Borrower which assumes the obligations
of a Guarantor under Article VI hereof.
"Guaranteed Pension Plan" - any employee pension benefit plan within
the meaning of Section 3(2) of ERISA maintained or contributed to by any
Principal Company or any ERISA Affiliate the benefits of which are guaranteed on
termination in full or in part by the PBGC pursuant to Title IV of ERISA, other
than a Multiemployer Plan.
"Guaranty" - in relation to any Person, any obligation, contingent or
otherwise, of such Person guarantying or having the economic effect of
guarantying any Indebtedness of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
Person, direct or indirect, (i) to purchase or pay (or advance or supply funds
for the purchase of payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (ii) to purchase property, securities or services for the purpose
of assuring the owner of such Indebtedness of the payment of such Indebtedness
or (iii) to maintain working capital, equity capital or other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness.
"Hazardous Substances" - any hazardous substances as defined by 42
U.S.C. Section 9601(14), any pollutant or contaminant as defined by 42 U.S.C.
Section 9601(33) and any toxic substance, oil or hazardous materials or other
chemicals or substances regulated by any Environmental Laws.
"Historical Financials" - as defined in Subsection 4.9(a).
"Immaterial Real Property" - real property owned by a Principal Company
other than Material Real Property.
"Incremental Facility" - as defined in the recitals hereto.
"Incremental Facility Commitment" - with respect to a Lender and for
each Series of Incremental Facility Loans, the commitment, if any, of such
Lender to make Incremental Facility Loans of such Series to the Borrower
hereunder (as the same may be reduced from time to time or terminated in
accordance with the terms hereof).
"Incremental Facility Commitment Period" - the period from and
including the Effective Date to the earlier to occur of (i) the day before the
Conversion Date and (ii) the termination of the Incremental Facility
Commitments.
"Incremental Facility Loan(s)" - as defined in Subsection 2.1(d).
"Incremental Facility Loan Note(s)" - as defined in Subsection 2.4(d).
"Incremental Facility Loan Payment Date" - as defined in Subsection
2.5(d).
22
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"Indebtedness" - with respect to any Person, all: (i) liabilities or
obligations, direct or contingent, which in accordance with GAAP would be
included in determining total liabilities as shown on the liability side of a
balance sheet of such Person at the date as of which Indebtedness is to be
determined, including contingent liabilities which, in accordance with GAAP,
would be set forth in a specific amount on the liability side of such balance
sheet, and Capitalized Lease Obligations of such Person; (ii) liabilities or
obligations of others for which such Person is directly or indirectly liable, by
way of Guaranty or otherwise; (iii) liabilities or obligations secured by Liens
on any assets of such Person, whether or not such liabilities or obligations
shall have been assumed by it; and (iv) liabilities or obligations of such
Person, direct or contingent, with respect to letters of credit issued for the
account of such Person and bankers acceptances created for such Person;
provided, however, that in the case of liabilities or obligations in respect of
which the holder has recourse only against certain assets of a Person,
Indebtedness in respect of such liabilities or obligations shall be limited to
the fair market value of the assets with respect to which recourse is not
prohibited.
"Indebtedness for Borrowed Money" - without duplication, all
Indebtedness with respect to any of the following: (i) money borrowed (whether
recourse or non-recourse), including principal, interest and premiums, (ii)
obligations evidenced by a bond, debenture, note or other like written
obligation to pay money, (iii) Capitalized Lease Obligations, (iv) obligations
under conditional sales or other title retention agreements or secured by any
Lien, (v) any letters of credit or similar instruments (including reimbursement
obligations with respect thereto), (vi) the deferred unpaid purchase price of
property or services, except trade payables and accrued expenses incurred in the
ordinary course of business, or (vii) any Guaranty of any or all of the
foregoing.
"Indemnity, Contribution and Subrogation Agreement" - the Indemnity,
Contribution and Subrogation Agreement, dated as of the Effective Date, by and
among the Borrower Affiliated Companies, substantially in the form attached
hereto as Exhibit B.
"Initial Facilities" - as defined in the recitals hereto.
"Insurance Policies" - as defined in Section 4.17.
"Intellectual Property Security Agreements" - collectively, (i) the
Copyright Security Agreements, (ii) the Patent Security Agreements, and (iii)
the Trademark Security Agreements.
"Interest Coverage Ratio" - as defined in Section 10.3.
"Interest Period" - with respect to any Eurodollar Loan, each period
commencing on the date such Loan is made or converted from a Base Rate Loan or
Base Rate Loans, or the last day of the next preceding Interest Period with
respect to such Eurodollar Loan, and ending on the same day in the first,
second, third or sixth calendar month as the Borrower may select as provided in
Section 2.2, except that each such Interest Period which commences on the last
Eurodollar Business Day of a calendar month shall end on the last Eurodollar
Business Day of the appropriate subsequent calendar month.
23
-15-
Notwithstanding the foregoing: (i) each Interest Period which would
otherwise end on a day which is not a Eurodollar Business Day shall end on the
next succeeding Eurodollar Business Day (or, if such next succeeding Eurodollar
Business Day falls in the next succeeding calendar month, on the next preceding
Eurodollar Business Day); (ii) no more than seven (7) Interest Periods for
Eurodollar Loans shall be in effect at the same time; and (iii) no Interest
Period shall end after the Maturity Date. In the event that the Borrower fails
to select the duration of any Interest Period for any Loan within the time
period and otherwise as provided in Section 2.2, such Loans will be
automatically converted into a Base Rate Loan on the last day of the preceding
Interest Period for such Loan.
"Interest Rate Contracts" - any interest rate swap, cap, collar or
other agreement or arrangement designed to provide protection against
fluctuation in interest rates.
"Investment" - in relation to any Person, all investments by such
Person, by stock purchase, capital contribution, loan, advance, Guaranty of any
Indebtedness of any other Person, acquisition by such Person of any
Communications System or any business or all or any substantial part of the
Assets of any other Person or any division or Subsidiary of such Person or the
transfer or sale of property by such Person (otherwise than in the ordinary
course of the business of such Person) to any other Person for less than payment
in full in cash of the transfer or sale price or the fair value thereof
(whichever of such price or value is higher).
"IRS" - Internal Revenue Service.
"Issue Date" - in relation to any Letter of Credit, the day on which
such Letter of Credit is issued or to be issued by the Issuing Bank for the
account of the Borrower pursuant to this Agreement.
"Issuing Bank" - with respect to any Letter of Credit, Fleet and any
successor issuing bank.
"Issuing Bank Fees" - as defined in Section 3.6.
"KMIT-FM and KGGK-FM Acquisition" - the acquisition by Saga Broadcast
of the capital stock of Mitchell Broadcasting, Ltd. relating to radio stations
KMIT-FM licensed to Mitchell, South Dakota and KGGK-FM licensed to Wessington
Springs, South Dakota.
"Lakefront" - Lakefront Communication, Inc., a Delaware corporation.
Lakefront Membership Interest Pledge Agreement" - the Membership
Interest Pledge Agreement, dated as of the Effective Date, by and between
Lakefront and the Collateral Trustee, substantially in the form attached hereto
as Exhibit I.
"Lakefront Stock Pledge Agreement" - the Stock Pledge Agreement, dated
as of the Effective Date, by and between Lakefront and the Collateral Trustee,
substantially in the form attached hereto as Exhibit J.
"Lakefront Pledge Agreements" - collectively, the Lakefront Stock
Pledge Agreement and the Lakefront Membership Interest Pledge Agreement.
24
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"Leases" - leases and subleases (other than Capitalized Leases),
licenses for the use of real property, easements, grants, pole attachment and
conduit or trench agreements and other attachment rights and similar instruments
under which any Principal Company has the right to use real or personal property
or rights of way.
"Lenders" - as defined in the preamble hereof.
"Letter of Credit" - any irrevocable standby letter of credit issued or
to be issued by the Issuing Bank for the account of the Borrower upon the terms
and subject to the conditions contained in this Agreement.
"Letter of Credit Application" - as defined in Section 3.2(b).
"Letter of Credit Disbursement" - a disbursement by the Issuing Bank to
the beneficiary of a Letter of Credit in connection with a drawing thereunder.
"Letter of Credit Exposure" - at any time, the sum of (i) the aggregate
undrawn face amount of all Letters of Credit outstanding at such time, and (ii)
the aggregate amount of all drawings under Letters of Credit for which the
Issuing Bank shall not have been reimbursed by the Borrower as provided in
Section 3.4. The amount of any Lender's Letter of Credit Exposure at any time
shall be the product of (i) the Letter of Credit Exposure, multiplied by (ii)
such Lender's Revolving Credit Commitment Percentage at such time.
"Letter of Credit Fees" - as defined in Section 3.6.
"Lien" - any mortgage, deed of trust, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing), any conditional sale or other title retention agreement, any
lease in the nature of any of the foregoing, and the filing of or agreement to
give any financing statement under the Uniform Commercial Code of any
jurisdiction.
"Loans" - collectively, (i) Revolving Credit Loans, (ii) Term Loans,
(iii) Acquisition Loans and (iv) Incremental Facility Loans. Loans of different
types made or converted from Loans of other types on the same day (or of the
same type but having different Interest Periods) shall be deemed to be separate
Loans for all purposes of this Agreement.
"Loan Documents" - collectively (i) this Agreement, (ii) the Notes,
(iii) the Security Documents, (iv) the Indemnity, Contribution and Subrogation
Agreement, (v) each Assignment and Acceptance Agreement, (vi) the Letter of
Credit Applications, (vii) the Fee Letter and (viii) any other documents,
instruments or agreements executed and/or delivered in connection with the
foregoing or from time to time designated by the Borrower and the Agent as a
Loan Document hereunder.
"Mandatory Payment" - as defined in Section 2.17.
"Material Adverse Effect" - any of the following: (i) any material
adverse effect on the business, Assets, operations, prospects or condition,
financial or otherwise, of the Borrower and its Restricted Subsidiaries taken as
a whole, (ii) any material impairment of
25
-17-
the ability of any Principal Company to perform any of its material obligations
under any Loan Document, or (iii) any material impairment of the validity or
enforceability of any Loan Document or any material impairment of the rights,
remedies or benefits available to, the Collateral Trustee, the Agent or any
Lender under any Loan Document.
"Material Federal Copyrights" - with respect to any Principal Company,
all copyrights of such Principal Company which (i) are registered in the United
States Copyright Office, and (ii) the Agent has determined (A) are material to
the business of the Principal Companies, taken as a whole, or (B) have an
economic value which is not insubstantial compared to all other Assets of all
the Principal Companies, taken as a whole.
"Material Federal Patents" - with respect to any Principal Company, all
patents of such Principal Company which (i) are registered in the United States
Patent and Trademark Office, and (ii) the Agent has determined (A) are material
to the business of the Principal Companies, taken as a whole, or (B) have an
economic value which is not insubstantial compared to all other Assets of all
the Principal Companies, taken as a whole.
"Material Federal Trademarks" - with respect to any Principal Company,
all trademarks of such Principal Company which (i) are registered in the United
States Patent and Trademark Office, and (ii) the Agent has determined (A) are
material to the business of the Principal Companies, taken as a whole, or (B)
have an economic value which is not insubstantial compared to all other Assets
of all the Principal Companies, taken as a whole.
"Material Intellectual Property" - with respect to any Principal
Company, any Material Federal Trademarks, any Material Federal Copyrights, and
any Material Federal Patents.
"Material Labor Dispute" - with respect to any Person, any strike, work
stoppage, material unfair labor practice claim or charge, arbitration or other
material labor dispute against or affecting such Person.
"Material Real Property" - any and all real property owned by any
Principal Company on which is located a tower, transmitter or antenna system
used in connection with the operations of any Station or Stations, if (but only
if) the aggregate Consolidated EBITDA attributable to such Station or Stations
for the Reference Period most recently ended equals or exceeds ten percent (10%)
of Consolidated EBITDA of the Principal Companies for such Reference Period.
"Maturity Date" - September 30, 2008.
"Mortgages" - collectively, the instruments of mortgage executed and
delivered by the Principal Companies in favor of the Collateral Trustee
(including any predecessors to Fleet as collateral trustee) from time to time
with respect to Material Real Properties.
"Most Recent Reference Period" means the most recent Reference Period
for which financial statements of the Borrower and its Restricted Subsidiaries
have been delivered to the Lenders in compliance with Article VII hereof.
26
-18-
"Multiemployer Plan" - any multiemployer plan within the meaning of
Section 3(37) of ERISA maintained or contributed to by any Principal Company or
any ERISA Affiliate.
"Net Proceeds" - with respect to any Prepayment Event (i) the gross
amount of cash consideration payable to or receivable by any Principal Company
in respect of such Prepayment Event, less (ii) the amount, if any, of all
estimated taxes payable as a result of gain realized with respect to such
Prepayment Event, whether or not payable during the taxable year in which such
Prepayment Event occurred, and less (iii) estimated fees, commissions, costs and
other expenses (other than those payable to any Affiliate) which are incurred in
connection with such Prepayment Event and are payable by the seller or the
transferor of the assets or property to which such Prepayment Event relates, but
only to the extent not already deducted in arriving at the amount referred to in
clause (i). To the extent that the estimate of taxes payable, or fees,
commissions, costs and other expenses incurred, proves incorrect, an adjustment
shall be made by way of an additional payment to the Agent, for the ratable
benefit of the Lenders, or a credit against amounts payable in respect of any
future Prepayment Events, as applicable.
"Net Proceeds Payment" - as defined in Subsection 2.5(f).
"Net Proceeds Payment Date" - as defined in Subsection 2.5(f).
"New Type Loan" - as defined in Section 2.23.
"Next Reference Period" - with respect to any Reference Period, the
Reference Period commencing immediately after the end of such Reference Period.
"Notes" - collectively (i) the Term Loan Notes, (ii) the Revolving
Credit Notes, (iii) the Acquisition Loan Notes, and (iv) the Incremental
Facility Loan Notes.
"Obligations" - collectively, all of the Indebtedness, liabilities and
obligations, whether direct or indirect, joint or several, absolute or
contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, of any Principal
Company (i) to any Lender, the Issuing Bank, the Agent or the Collateral
Trustee, whether now existing or hereafter arising, whether or not currently
contemplated, arising under any Loan Document, and (ii) under any Interest Rate
Contract entered into with any Person that was (a) a Lender or an Affiliate of
any Lender hereunder or (b) a Lender or an Affiliate of any Lender (as each such
term is defined under the Existing Credit Agreement) under the Existing Credit
Agreement, at the time such Person entered into such Interest Rate Contract.
"Participant" - as defined in Subsection 13.11(a).
"Patent Security Agreements" - collectively, the Patent Collateral
Assignment and Security Agreements from time to time entered into by and between
the Collateral Trustee and one or more of the Principal Companies with respect
to Material Federal Patents.
"Payor" - as defined in Section 2.17.
"PBGC" - Pension Benefit Guaranty Corporation.
27
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"Perfected Collateral" - as defined in Section 4.4(a).
"Permitted Acquisition" - any Acquisition after the Effective Date by
the Borrower or any of its Restricted Subsidiaries of any Communications System
so long as, in each case, either the Required Lenders have given their written
consent to such Acquisition or all of the following conditions have been
satisfied:
(i) after giving effect to such Acquisition, the Assets
comprising such Communications System (as used in this definition, the
"Acquired Assets") shall be owned exclusively by the Borrower or a
wholly-owned Restricted Subsidiary of the Borrower;
(ii) if the Acquired Assets are owned by a newly-formed or
newly-acquired Restricted Subsidiary of the Borrower, such Restricted
Subsidiary (and any parent of such Restricted Subsidiary that is not
already a Principal Company) shall have executed and delivered to the
Agent and the Lenders (A) an accession agreement reasonably
satisfactory to the Agent, pursuant to the terms of which such
Restricted Subsidiary (and such parent or parents, if applicable) (1)
becomes a party to this Agreement as a Principal Company and as a
Guarantor, becomes a party to the Borrower Subsidiary Security
Agreement as a Restricted Subsidiary, becomes a party to the Indemnity,
Contribution and Subrogation Agreement as a "Borrower Affiliated
Company", and becomes a party to any other Loan Document as the Agent
may reasonably request, and (2) agrees to perform and observe all of
the obligations and covenants (including all obligations and covenants
contained in Article VI hereof) of a Principal Company and a Guarantor
hereunder, of a Restricted Subsidiary under the Borrower Subsidiary
Security Agreement, of a Borrower Affiliated Company under the
Indemnity, Contribution and Subrogation Agreement, and of the
appropriate party under any other Loan Document to which it becomes a
party and (B) one or more Intellectual Property Security Agreements, if
requested by the Agent;
(iii) the Borrower shall have demonstrated to the reasonable
satisfaction of the Agent (based on, among other things, operating and
financial projections and pro forma financial statements delivered to
the Agent and certified by the Chief Financial Officer) that,
immediately after giving effect to the Acquisition (including the
making of any Loans and the incurrence of any Indebtedness required to
finance such Acquisition), all covenants (including all covenants
contained in Article X hereof) contained herein (A) would have been
satisfied on a pro forma basis as at the end of and for the Most Recent
Reference Period, and (B) will be satisfied on a pro forma basis
through the period ending two years after the date of such Acquisition.
The Agent acknowledges that, as of the date hereof, based on the
information provided to it by the Borrower through the date hereof, the
requirements of this paragraph (iii) are satisfied with respect to all
Scheduled Acquisitions. Notwithstanding such acknowledgement by the
Agent, the Borrower shall still be required to satisfy the requirements
of this paragraph (iii) for any Scheduled Acquisition prior to the
completion of such Scheduled Acquisition;
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(iv) no Default or Event of Default is continuing immediately
prior to such Acquisition, and no Default or Event of Default would
result from such Acquisition;
(v) if the Total Consideration (as defined below) payable by
the Principal Companies in connection with such Acquisition would be
greater than $20,000,000, the Required Lenders have approved such
Acquisition in writing (it being understood that the Required Lenders
have no obligation to provide such written approval);
(vi) if the Total Consideration (as defined below) payable by
the Borrower and its Restricted Subsidiaries in connection with such
Acquisition would be greater than $10,000,000, the Agent shall have
received such due diligence materials relating to the Acquisition as
the Agent shall have reasonably requested, and the Agent shall be
reasonably satisfied with the results of its review of such materials;
(vii) the Agent shall have received satisfactory evidence that
the Communication System to be acquired has complied with, is in
compliance with, and, after the Acquisition, will be in compliance
with, in all material respects all applicable Requirements of Law,
including the Communications Act and all Environmental Laws; and
(viii) prior to any such Acquisition, the Borrower shall have
delivered to the Agent the definitive acquisition agreement between the
Borrower and/or applicable Restricted Subsidiary or Subsidiaries and
the applicable seller.
As used in this definition, "Total Consideration" means all consideration
payable by any Principal Company in connection with any Acquisition, including
cash payments at closing, the principal amount of any promissory notes issued by
any Principal Company, the principal amount of any amounts payable by any
Principal Company in consideration for any non-compete covenant, and the amount
of any Indebtedness for Borrowed Money assumed by any Principal Company (but
excluding any consideration paid by the issuance of Permitted Capital Stock).
The purchase by any Principal Company of any Communication System pursuant to
any local market agreement or time brokerage agreement entered into by any
Principal Company in connection with any Permitted LMA Transaction must satisfy
all of the above requirements.
"Permitted Capital Stock" - Capital Stock of the Borrower with respect
to which the Borrower has no obligation to make any Distributions prior to the
payment in full in cash of all the Obligations.
"Permitted Holder" means (i) Christian or (ii) any of Christian's
Permitted Transferees.
"Permitted LMA Transaction" - any agreement or arrangement pursuant to
which the Borrower or any of its Restricted Subsidiaries purchases broadcast
time on any Communications System (other than a Station) for the purpose of
programming such
29
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broadcast time or any other similar arrangement, so long as in each case, either
the Required Lenders have given their written consent to such transaction or:
(i) if the Borrower or any of its Restricted Subsidiaries has
the obligation to purchase such Communications System pursuant to or in
connection with such agreement, the requirements set forth in clauses
(i) through (viii) of the definition of "Permitted Acquisition" would
be met; for purposes of determining whether such agreement or
arrangement would meet such requirements, references in such clauses to
the "Acquisition" or any similar reference shall be deemed to refer to
the Acquisition contemplated by such agreement. This clause (i) shall
not apply if the Borrower or its Restricted Subsidiaries has a mere
option to purchase such Communication System;
(ii) the Borrower shall have demonstrated to the reasonable
satisfaction of the Agent that the Pro Forma Fixed Charges Coverage
Ratio (as defined in Section 10.2), after giving pro forma effect to
the transactions contemplated by such agreement or arrangement, shall
be not less than the ratio then required by Section 10.2; and
(iii) no Default or Event of Default is continuing immediately
prior to the effectiveness of such agreement or arrangement, and no
Default or Event of Default would result from such agreement or
arrangement.
"Permitted Liens" - as to any Principal Company:
(i) Liens to secure taxes, assessments, levies or other
governmental charges imposed upon such Principal Company, to the extent
(in each case) that the payment thereof shall not at the time be
required to be made in accordance with the provisions of Section 8.1;
(ii) deposits or pledges made by such Principal Company in the
ordinary course of its business (A) to secure payment of workers'
compensation, unemployment insurance, or other forms of governmental
insurance or benefits, (B) to secure performance of bids, tenders,
statutory obligations, leases and contracts (other than contracts
relating to borrowed money), or (C) to secure surety, appeal, indemnity
or performance bonds, in each case in the ordinary course of business
of such Principal Company, and in each case only to the extent that
payment thereof shall not at the time be required to be made in
accordance with the provisions of Section 8.1;
(iii) Liens in respect of judgments or awards against such
Principal Company with respect to which such Principal Company shall
currently be processing an appeal or proceedings for review; provided,
that (A) appropriate reserves with respect thereto have been
established and maintained on the consolidated books of the Principal
Companies in accordance with GAAP and (B) no such Lien or judgment
constitutes an Event of Default described in Subsection 11.1(i) or (o);
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(iv) Liens of carriers, warehousemen, mechanics, landlords or
materialmen incurred in the ordinary course of the business of such
Principal Company, in each case for sums not at the time required to be
paid in accordance with provisions of Section 8.1; and
(v) easements, rights-of-way, zoning and similar restrictions
and other similar encumbrances or title defects which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or
interfere with the ordinary conduct of the business of such Principal
Company.
"Permitted Sale" - any Sale by any Principal Company (i) in the
ordinary course of its business of immaterial Assets or obsolete or unusable
equipment, (ii) in the ordinary course of its business of other equipment as
long as such equipment is replaced by equipment of like function and comparable
value within a period of three months after the date of such Sale or (iii) in
the ordinary course of its business of Immaterial Real Property; provided,
however, that (A) the total consideration payable to or receivable by the
Principal Companies in connection with any Permitted Sale (1) is an amount not
less than the fair market of the Assets subject to such Sale and (2) consists of
at least 90% cash which is payable at the closing of such Sale, and (B) no Sale
shall be deemed a Permitted Sale if it occurs in connection with any Sale of a
Communications System or other business by any Principal Company.
"Permitted Subordinated Seller Debt" - Seller Debt incurred in
connection with any Permitted Acquisition which:
(i) is not (A) Guaranteed in any manner by any Principal
Company unless such Guaranty is by the Borrower and is subordinated in
right of payment and exercise of remedies to the prior payment in full
in cash of all the Obligations, and any Indebtedness which refunds,
refinances or replaces the Obligations, pursuant to a subordination
agreement which is acceptable in all respects to the Agent; or (B)
secured by any Assets of any Principal Company;
(ii) requires no principal payments prior to one year after
the Maturity Date;
(iii) bears interest at a fixed annual rate not in excess of
10%;
(iv) is subordinated in right of payment and exercise of
remedies to the prior payment in full in cash of all the Obligations,
and any Indebtedness which refunds, refinances or replaces the
Obligations, pursuant to a subordination agreement which is acceptable
in all respects to the Agent; and
(v) is in a face amount at the time of incurrence thereof
which, when added to the aggregate amount of all principal payment
obligations of the Principal Companies in respect of any other Seller
Debt, does not exceed $3,000,000.
"Permitted Transferees" - with respect to any Person, (i) any Affiliate
of such Person, (ii) the heirs, executors, administrators, testamentary
trustees, legatees or beneficiaries of
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any such Person or (iii) a trust, the primary beneficiaries of which, or a
corporation, partnership or other entity, the stockholders or general or limited
partners or other owners of which, include only such Person or his or her spouse
or lineal descendants, in each case to whom such Person has transferred the
beneficial ownership of any Capital Stock of the Borrower.
"Person" - an individual, a corporation, a partnership, a joint
venture, a trust or unincorporated organization, a joint stock company or other
similar organization, a government or any political subdivision thereof, a
court, or any other legal entity, whether acting in an individual, fiduciary or
other capacity.
"Prepayment Event" - any Sale (other than a Permitted Sale), or any
series of related Sales, of any Asset or Assets of any Principal Company
(including Capital Stock of any Restricted Subsidiary) which takes place at any
time after the date hereof and pursuant to which the gross amount of
consideration payable to or receivable by the Borrower Affiliated Companies
exceeds $2,000,000.
"Principal Companies" - collectively, (i) the Borrower and (ii) the
Restricted Subsidiaries.
"Principal Office" - the principal office of the Agent in the United
States, presently located at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
"Pro Forma Fixed Charges" - for any Reference Period, without
duplication, the sum of (i) all interest in respect of Consolidated Total Funded
Debt paid by the Borrower and its Restricted Subsidiaries during such Reference
Period, (ii) all Commitment Fees paid by the Borrower and its Restricted
Subsidiaries during such Reference Period, (iii) the aggregate amount of Capital
Expenditures made by the Borrower and its Restricted Subsidiaries during such
Reference Period, (iv) the aggregate amount of all federal, state or local
income taxes paid by the Borrower and its Restricted Subsidiaries during such
Reference Period, and (v) all principal in respect of Consolidated Total Funded
Debt scheduled to be paid by the Principal Companies during the Next Reference
Period, calculated assuming:
(A)that no Acquisition Loans or Incremental Facility Loans are
made during such Next Reference Period; and
(B)that no Term Loans, Acquisition Loans or Incremental
Facility Loans are prepaid during such Next Reference Period, and that
the only payments of Term Loans, Acquisition Loans and Incremental
Facility Loans made during such Next Reference Period are scheduled
amortization payments made on the respective due dates thereof.
"Projections" - the projections of the Borrower delivered on or prior
to the Effective Date which shall be certified by the Chief Financial Officer
and identified as projections through the Maturity Date.
"Public Filings" - as defined in Section 7.5.
"Purchase Money Security Interest" - as defined in Subsection 9.2(d).
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"Purchasing Lender" - as defined in Subsection 13.11(b).
"Quarterly Dates" - the last Business Day of each March, June,
September and December, the first of which shall be March 31, 2001.
"Reference Period" - each period of four consecutive fiscal quarters of
the Borrower.
"Regulation D" - Regulation D of the Board of Governors of the Federal
Reserve System, as the same may be amended or supplemented from time to time.
"Regulatory Change" - as to any Lender, any change after the date of
this Agreement in United States federal, state or foreign laws or regulations
(including Regulation D and the laws or regulations which designate any
assessment rate relating to certificates of deposit or otherwise) or the
adoption or making after such date of any interpretations, directives or
requests applying to a class of banks, including such Lender, of or under any
United States federal, state or foreign laws or regulations (whether or not
having the force of law) by any court or governmental or monetary authority
charged with the interpretation or administration thereof.
"Reinvestment Collateral Account" - as defined in the Collateral Trust
Agreement.
"Required Acquisition Loan Lenders" - at any time, Lenders the sum of
whose (a) outstanding Acquisition Loan Commitments represent at least fifty-one
percent (51%) of the Total Acquisition Loan Commitment or (b) after the
termination of the Acquisition Loan Commitment Period, outstanding Acquisition
Loans represent at least fifty-one percent (51%) of all outstanding Acquisition
Loans made by the Lenders.
"Required Incremental Facility Lenders" - at any time, with respect to
any Series of Incremental Facility Loans, Lenders the sum of whose (a)
outstanding Incremental Facility Commitments of such Series of Incremental
Facility Loans represent at least fifty-one percent (51%) of the aggregate
Incremental Facility Commitments of such Series, or (b) after the termination of
the Incremental Facility Commitment Period, outstanding Incremental Facility
Loans of such Series represent at least fifty-one percent (51%) of all
outstanding Incremental Facility Loans of such Series made by the Lenders.
"Required Lenders" - at any time, Lenders the sum of whose (a)
outstanding (i) Term Loan Commitments or, after the termination thereof,
outstanding Term Loans, (ii) Revolving Credit Commitments or, after the
termination thereof, outstanding Revolving Credit Loans, (iii) Acquisition Loans
Commitments or, after the termination thereof, outstanding Acquisition Loans,
(iv) Incremental Facility Commitments of each Series of Incremental Facility
Loans or, after the termination thereof, outstanding Incremental Facility Loans
and (v) Letter of Credit Exposure, represent at least 51% of the sum of (b) all
outstanding (i) Term Loan Commitments or, after the termination thereof, all
outstanding Term Loans, (ii) Revolving Credit Commitments or, after the
termination thereof, all outstanding Revolving Credit Loans, (iii) Acquisition
Loan Commitments or, after the termination thereof, all outstanding Acquisition
Loans, (iv) Incremental Facility Commitments of each Series of Incremental
Facility Loans or, after the termination thereof, all outstanding Incremental
Facility Loans and (v) Letter of Credit Exposure.
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"Required Revolving Credit Lenders" - at any time, Lenders the sum of
whose (a) outstanding Revolving Credit Commitments represent at least fifty-one
percent (51%) of the Total Revolving Credit Commitment, or (b) after the
termination of the Revolving Credit Commitments, outstanding Revolving Credit
Loans represent at least fifty-one percent (51%) of all outstanding Revolving
Credit Loans made by Lenders.
"Required Term Loan Lenders" - at any time, Lenders the sum of whose
(a) outstanding Term Loan Commitments represent at least fifty-one percent (51%)
of the Total Term Loan Commitment, or (b) after the termination of the Term Loan
Commitments, outstanding Term Loans represent at least fifty-one percent (51%)
of all outstanding Term Loans made by Lenders.
"Requirement of Law" - as to the any Principal Company, (i) the
Governing Documents of such Principal Company, and (ii) any law, treaty, rule or
regulation (whether Federal, state, local or foreign) or determination of any
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Principal Company or any of its property or to which
such or any of its property is subject.
"Reserved Commitment Amount" - as defined in Subsection 2.1(a).
"Restricted Payments" - with reference to any Principal Company, (i)
any Distribution (other than any distribution by the Borrower of Class A Common
Stock to any Person in connection with such Person's conversion of any Class B
Common Stock owned by such Person into Class A Common Stock) or (ii) any
optional retirement, repurchase, defeasance or redemption of, any acquisition
for value of, or any repayment or prepayment of, any Indebtedness for Borrowed
Money (other than Obligations) of any Principal Company other than as required
by mandatory or scheduled repayment obligations.
"Restricted Subsidiary" - any Subsidiary of the Borrower other than an
Unrestricted Subsidiary.
"Revolving Credit Commitment" - with respect to a Lender, the
commitment of such Lender to make Revolving Credit Loans to the Borrower in the
amount set forth on Schedule 1 hereto, as the same may be reduced from time to
time or terminated in accordance with the terms hereof.
"Revolving Credit Commitment Percentage" - with respect to each
Revolving Credit Lender, the percentage of such Lender's Revolving Credit
Commitment to the Total Revolving Credit Commitment or, after the termination of
the Revolving Credit Commitments, the percentage of such Lender's outstanding
Revolving Credit Loans to the aggregate outstanding Revolving Credit Loans.
"Revolving Credit Commitment Fees" - as defined in Section 2.8(a).
"Revolving Credit Lender" - each Lender having a Revolving Credit
Commitment or holding any Revolving Credit Loans.
"Revolving Credit Loan(s)" - as defined in Section 2.1(a).
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"Revolving Credit Note(s)" - as defined in Section 2.4(a).
"Revolving Credit Outstandings" - at any time, the sum of (i) the
aggregate principal amount of Revolving Credit Loans outstanding at such time,
and (ii) the Letter of Credit Exposure at such time.
"Saga Air" - Saga Air, LLC, a Delaware limited liability company.
"Saga Broadcast" - Saga Broadcasting Corp., a Delaware corporation.
"Saga Broadcast Stock Pledge Agreement" - the Stock Pledge Agreement,
dated as of the Effective Date, by and between Saga Broadcast and the Collateral
Trustee, in substantially the form attached hereto as Exhibit J.
"Sale" - a sale, lease, transfer or other disposition of any Asset.
"Scheduled Acquisitions" - collectively, (i) the WHAI-AM/FM Acquisition
and (ii) the KMIT-FM and KGGK-FM Acquisition.
"Scheduled Acquisition Documents" - all agreements, documents and
instruments executed and/or delivered in connection with any Scheduled
Acquisition.
"Secondary Stations" - collectively, the Low Power Television Stations
KUNU-LP, KVTX-LP and KXTS-LP, Victoria, Texas, FM Translator Stations W270AH,
Peterborough, New Hampshire, and X000XX, Xxxxx, Xxx Xxxxxxxxx, X000XX, Sioux
City, Iowa, and such other low power television and FM translator stations
acquired by any Principal Company after the Effective Date.
"Secured Creditors" - as defined in the Collateral Trust Agreement.
"Securities Act" - the Securities Act of 1933, as amended.
"Security Documents" - (i) the Collateral Trust Agreement, (ii) the
Stock Pledge Agreements, (iii) the Borrower Security Agreement, (iv) the
Borrower Subsidiary Security Agreement, (v) the Intellectual Property Security
Agreements, (vi) the Mortgages, and (vii) any other instruments or documents
from time to time securing or guaranteeing any of the Obligations or from time
to time designated by the Borrower and the Agent as Security Documents
hereunder.
"Seller Debt" - Indebtedness (other than Loans or Letters of Credit) of
any Principal Company (whether in respect of promissory notes, non-compete
covenants or otherwise) incurred in connection with any Acquisition.
"Seller Debt Documents" - all agreements, instruments or other
documents evidencing or relating to Seller Debt.
"Series" - as defined in Section 2.1(d).
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"Specified Default" - as of any date of determination, any Event of
Default (other than an Event of Default described in Sections 11.1(d), (f) or
(j)) which shall not have been remedied within five (5) days after notice
thereof shall have been given to the Borrower by the Agent.
"Stations" - collectively, (i) radio station WAQY-FM, licensed to
Springfield, Massachusetts; (ii) radio station WHNP(AM), licensed to East
Longmeadow, Massachusetts; (iii) radio stations WZAN(AM), WPOR-FM, WGAN (AM),
WBAE(AM) and WMGX (FM) licensed to Portland, Maine; (iv) radio stations WFEA(AM)
and WZID(FM) licensed to Manchester, New Hampshire, (v) radio stations WVKO(AM)
and WSNY(FM) licensed to Columbus, Ohio, (vi) radio stations WKLH(FM), WJYI(AM)
and WLZR-FM licensed to Milwaukee, Wisconsin, (vii) radio station WJOI(AM) and
WNOR-FM licensed to Norfolk, Virginia, (viii) radio stations WLRW(FM) and
WIXY(FM) licensed to Champaign, Illinois, (ix) radio station WYMG(FM) licensed
to Jacksonville, Illinois, (x) radio stations KRNT(AM), KSTZ(FM), KXTK(AM) and
KIOA-FM licensed to Des Moines, Iowa, (xi) radio station WYNZ(FM) licensed to
Westbrook, Maine, (xii) radio stations WQQL(FM), WDBR(FM) and WTAX(AM) licensed
to Springfield, Illinois, (xiii) radio station WAFX(FM) licensed to Suffolk,
Virginia, (xiv) television station KOAM - TV licensed to Pittsburg, Kansas, (xv)
radio stations WNAX(AM) and WNAX-FM licensed to Yankton, South Dakota, (xvi)
radio stations KGMI(AM), KISM(FM), KPUG(AM), KIXT(AM), and KAFE(FM), licensed to
Bellingham, Washington, (xvii) radio station WQLL(FM), licensed to Bedford, New
Hampshire, (xviii) radio station WJMR-FM, licensed to Menomonee Falls,
Wisconsin, (xix) radio station WFMR(FM) licensed to Brookfield, Wisconsin, (xx)
radio station KAZR(FM) licensed to Pella, Iowa, (xxi) radio station KLTI-FM
licensed to Ames, Iowa, (xxii) radio stations XXXX(AM) and WMHX(FM) licensed to
Lincoln, Illinois, (xxiii) radio stations KICD(AM) and KICD-FM and KLLT(FM),
licensed to Spencer, Iowa, (xxiv) radio stations WJMR(AM) and WCVQ(FM), licensed
to Fort Xxxxxxxx, Kentucky, (xxv) radio stations WZZP(FM) and WVVR(FM), licensed
to Hopkinsville, Kentucky, (xxvi) radio station WDXN(AM), licensed to
Clarksville, Tennessee, (xxvii) television station WXVT(TV), Greenville,
Mississippi, (xxviii) television station KAVU(TV), Victoria, Texas, (xxix) radio
stations WHMP(AM) and WLZX(FM), Northampton, Massachusetts, (xxx) radio station
WKIO(FM), Urbana, Illinois and (xxxi) any other Communications Systems acquired
by any Principal Company after the Effective Date.
"Stock Pledge Agreements" - collectively, (i) the Borrower Stock Pledge
Agreement, (ii) the Saga Broadcast Stock Pledge Agreement, and (iii) the
Lakefront Pledge Agreements.
"Subordinated Debt" - collectively, (i) Permitted Subordinated Seller
Debt and (ii) any other unsecured Indebtedness for Borrowed Money of the
Borrower the principal amount of, the interest rate on and all other terms
(including covenants, events of default, remedies and subordination provisions)
of which have been approved in writing by the Required Lenders.
"Subordinated Debt Documents" - all agreements, instruments or other
documents evidencing or relating to any Subordinated Debt.
"Subrogation Rights" - as defined in Section 6.6.
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"Subsidiary" - with respect to any Principal Company, any corporation,
partnership, limited liability company, or joint venture whether now existing or
hereafter organized or acquired: (i) in the case of a corporation, of which a
majority of the securities having ordinary voting power for the election of
directors (other than securities having such power only by reason of the
happening of a contingency) are at the time owned by such Principal Company
and/or one or more Subsidiaries of such Principal Company, or (ii) in the case
of a partnership, limited liability company, or joint venture in which such
Principal Company is a general partner, member, or joint venturer, or of which a
majority of the partnership or other ownership interests are at the time owned
by such Principal Company and/or one or more of its Subsidiaries. Unless the
context otherwise requires, references in this Agreement to "Subsidiary" or
"Subsidiaries" shall be deemed to be references to a Subsidiary or Subsidiaries
of the Borrower.
"Syndication Agent" - as defined in the preamble hereof.
"Taxes" - any federal, state or local taxes or tax liabilities.
"Term Loan(s)" - as defined in Subsection 2.1(c).
"Term Loan Commitment" - with respect to a Lender, the commitment of
such Lender to make Term Loans to the Borrower in the amount set forth on
Schedule 1 hereto, as the same may be reduced from time to time or terminated in
accordance with the terms hereof.
"Term Loan Commitment Percentage" - with respect to each Lender with a
Term Loan Commitment, the percentage of such Lender's Term Loan Commitment to
the Total Term Loan Commitment or, after the termination of the Total Term Loan
Commitment, the percentage of such Lender's outstanding Term Loans to the
aggregate outstanding Term Loans.
"Term Loan Notes - as defined in Subsection 2.4(b).
"Term Loan Payment Date" - as defined in Subsection 2.5(b).
"Total Acquisition Loan Commitment" - the sum of the Acquisition Loan
Commitments of the Lenders, as in effect from time to time. The initial Total
Acquisition Loan Commitment as of the Effective Date is $75,000,000.
"Total Funded Debt Leverage Ratio" - as defined in Section 10.1.
"Total Revolving Credit Commitment" - the sum of the Revolving Credit
Commitments of the Lenders, as in effect from time to time. The initial Total
Revolving Credit Commitment as of Effective Date is $20,000,000.
"Total Term Loan Commitment" - the sum of the Term Loan Commitments of
the Lenders, as in effect from time to time. The initial Total Term Loan
Commitment as of the Effective Date in $105,000,000.
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"Trademark" - collectively, all of the following, to the extent that
any Principal Company now or hereafter has any right, title or interest herein:
(i) all trademarks, service marks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, trade dress, logos,
other source or business identifiers, designs and general intangibles or like
nature, now existing or hereafter adopted or acquired, all registrations and
recordings thereof, and all registration and recording applications filed in
connection therewith, including registrations and registration applications in
the United States Patent and Trademark Office, or any state of the United
States, or in any country, as well as all extensions or renewals thereof, and
(ii) all goodwill associated therewith or symbolized thereby, and (iii) all
other assets, rights and interests that uniquely reflect or embody such
goodwill.
"Trademark Security Agreements" - collectively, the Trademark
Collateral Assignment and Security Agreements from time to time entered into by
and between the Collateral Trustee and one or more of the Principal Companies
with respect to Material Federal Trademarks.
"Tranche" - the respective facilities and commitments utilized in
making Loans hereunder, i.e., Term Loans, Revolving Credit Loans, Acquisition
Loans, and each Series of Incremental Facility Loans, respectively, and the
Commitments corresponding to each such Tranche of Loans.
"Transaction" - the loans and other transactions contemplated by the
Loan Documents to occur on or about the Effective Date.
"Transaction Documents" - (i) this Agreement, (ii) the Notes, (iii) the
Indemnity, Contribution and Subrogation Agreement, (iv) the Fee Letter, (v) the
Collateral Trust Agreement, (vi) the Stock Pledge Agreements, (vii) the Borrower
Security Agreement, (viii) the Borrower Subsidiary Security Agreement, and (ix)
any other documents executed or delivered in connection with the Transaction.
"Transfer Effective Date" - as defined in Section 13.11(b).
"Transferee" - as defined in Section 13.11(f).
"type" - with respect to any Loan or portion thereof, such Loan's
designation as a Base Rate Loan or Eurodollar Loan.
"Unrestricted Subsidiary" - any Subsidiary that (i) shall have been
designated as an "Unrestricted Subsidiary" in accordance with the provisions of
Section 1.3 and (ii) any Subsidiary of an Unrestricted Subsidiary.
"Utilization Level" - shall mean, as at any date of determination, as
it relates to (a) the Revolving Credit Commitment, the ratio (expressed as a
percentage) of (x) the daily average amount of the Revolving Credit Outstandings
during the applicable calendar quarter or relevant portion thereof, as the case
may be, over (y) the daily average amount of the Total Revolving Credit
Commitment during the applicable calendar quarter or relevant portion thereof,
as the case may be; and (b) the Acquisition Loan Commitment, the ratio
(expressed as a percentage) of (x) the daily average amount of the aggregate
amount of all
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Acquisition Loans outstanding during the applicable calendar quarter or relevant
portion thereof, as the case may be, over (y) the daily average amount of the
Total Acquisition Loan Commitment during the applicable calendar quarter or
relevant portion thereof, as the case may be.
"Voting Stock" - Capital Stock the holders of which are at the time
entitled, as such holders, to vote for the election of a majority of the
directors (or persons performing similar functions) of the corporation,
association, trust or other business entity involved, whether or not the right
so to vote exists by reason of the happening of a contingency.
"WHAI-AM/FM Acquisition" - the acquisition by Saga Communications of
New England, Inc. of the assets of Xxxxxx Broadcasting Corporation relating to
radio stations WHAI(AM) and WHAI-FM licensed to Greenfield, Massachusetts.
Section 1.2. General Provisions Pertaining to Definitions. All terms of
an accounting character not specifically defined herein shall have the meanings
assigned thereto by GAAP. The definitions in this Article I shall apply equally
to both the singular and plural forms of the terms defined. Whenever the context
may require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". All references herein to
Sections, Subsections, paragraphs, clauses and Exhibits shall be deemed
references to Sections, Subsections, paragraphs on clauses of, and Exhibits to,
this Agreement unless the context shall otherwise require. Each reference herein
to a particular Person shall include a reference to such Person's successors and
permitted assigns. References to any agreement, instrument or document defined
in this Article I refer to such agreement, instrument or document as originally
executed, or if subsequently varied, replaced or supplemented from time to time,
as so varied, supplemented or replaced and in effect at the relevant time of
reference thereto.
Section 1.3. Designation of Unrestricted Subsidiaries; Certain
Obligations Respecting Restricted Subsidiaries.
(a) Designation of Unrestricted Subsidiaries. The Borrower may at any
time designate any of its Subsidiaries formed or acquired after the date hereof
an Unrestricted Subsidiary for purposes of this Agreement, by delivering to the
Agent a certificate of the Chief Financial Officer (and the Agent shall promptly
forward a copy of such certificate to each Lender) attaching a copy of a
resolution of the Borrower's board of directors setting forth such designation
and stating that the conditions set forth in this Section 1.3 have been
satisfied with respect to such designation, provided that no such designation
shall be effective unless at the time of such designation and after giving
effect thereto (i) no Default or Event of Default shall have occurred and be
continuing, (ii) no Subsidiary of an Unrestricted Subsidiary is a Restricted
Subsidiary, and (iii) the Borrower would be in compliance with the restrictions
on Investments in Unrestricted Subsidiaries set forth in Subsection 9.4(i).
(b) Revocation of Designation. The Borrower may revoke any designation
of a Subsidiary as an Unrestricted Subsidiary by delivering to the Agent a
certificate of the Chief Financial Officer (and the Agent shall promptly forward
a copy of such certificate to
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each Lender) attaching a copy of a resolution of the Borrower's board of
directors setting forth such revocation and stating that the conditions set
forth in this Section 1.3 have been satisfied with respect to such revocation,
provided that no such revocation shall be effective unless (i) at the time of
such revocation and after giving effect thereto, no Default or Event of Default
shall have occurred and be continuing; (ii) all Liens, Indebtedness and
Investments of such Unrestricted Subsidiary outstanding immediately following
such revocation would, if incurred at such time, have been permitted to be
incurred under this Agreement and (iii) the Borrower shall have demonstrated to
the reasonable satisfaction of the Agent that (based on, among other things
operating and financial projections and pro forma financial statements delivered
to the Agent and certified by the Chief Financial Officer), immediately after
giving effect to such revocation, all covenants (including all covenants
contained in Article X hereof) contained herein (A) would have been satisfied on
a pro forma basis as at the end of and for the Most Recent Reference Period had
such Subsidiary been a Restricted Subsidiary at all times during such period,
and (B) will be satisfied and pro forma basis through the period ending two
years after the date of such designation.
(c) Certain Restrictions Regarding Principal Companies. No Principal
Company shall at any time (i) provide credit support for, subject any of its
Assets (other than the Capital Stock of such Unrestricted Subsidiary owned by
such Principal Company) to the satisfaction of, or guarantee any Indebtedness of
any Unrestricted Subsidiary (including any undertaking, agreement or instrument
evidencing such Indebtedness), (ii) be directly or indirectly liable for any
Indebtedness or other obligations of any Unrestricted Subsidiary or (iii) be
directly or indirectly liable for any Indebtedness which provides that the
holder thereof may (upon notice, lapse of time or both) declare a default
thereon or cause the payment thereof to be accelerated or payable prior to its
final scheduled maturity upon the occurrence of a default with respect to any
Indebtedness of any Unrestricted Subsidiary.
(d) The Borrower hereby designates Saga Air as an Unrestricted
Subsidiary as of the Effective Date. The Borrower represents and warrants to the
Agent and the Lenders that the requirements of this Section 1.3 with respect to
such designation have been satisfied.
ARTICLE II
COMMITMENTS; LOANS; COLLATERAL
Section 2.1. Loans.
(a) Revolving Credit Loans. Subject to the terms and conditions set
forth in this Agreement, each Lender with a Revolving Credit Commitment
severally agrees to make revolving credit loans (individually, a "Revolving
Credit Loan" and, collectively, the "Revolving Credit Loans") to the Borrower
from time to time from and after the Effective Date until the Maturity Date in
an aggregate principal amount at any time outstanding (after giving effect to
all requests therefor) up to, but not exceeding, the Revolving Credit Commitment
of such Lender at such time, minus such Lender's Letter of Credit Exposure at
such time. Subject to the terms and conditions of this Agreement, from time to
time from
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and after the Effective Date until the Maturity Date, the Borrower may borrow,
repay (provided that repayment of Eurodollar Loans shall be subject to the
provisions of Section 2.25) and reborrow Revolving Credit Loans.
Proceeds of Revolving Credit Loans shall be available for any use
permitted by Subsection 2.9(a), provided that, in the event that the Borrower
shall prepay Revolving Credit Loans in accordance with Subsection 2.5(f)(ii)(x)
with Net Proceeds, then an amount of Revolving Credit Commitments equal to the
amount of such prepayment (a "Reserved Commitment Amount") shall be reserved and
shall not be available for any Credit Extension hereunder, except and to the
extent that the proceeds of such Credit Extension are used to (i) finance a
Permitted Acquisition in accordance with Subsection 2.5(f)(ii)(y) or (ii) prepay
Loans in accordance with Subsection 2.5(f)(ii)(y). The Borrower shall notify the
Agent in writing, at the time of any request for a Revolving Credit Loan that
would utilize any Reserved Commitment Amount, of (A) the amount of any Reserved
Commitment Amount to be so utilized, (B) the amount of the remaining Reserved
Commitment Amounts after giving effect to such Revolving Credit Loan, (C) the
Permitted Acquisition to be financed with proceeds of such Revolving Credit
Loan, or the prepayment of Loans to be made pursuant to Subsection 2.5(f)(ii)(y)
with proceeds of such Revolving Credit Loan.
(b) Acquisition Loans. Subject to the terms and conditions set forth in
this Agreement, each Lender with an Acquisition Loan Commitment severally agrees
to make acquisition loans (individually, an "Acquisition Loan" and,
collectively, the "Acquisition Loans") to the Borrower from time to time during
the Acquisition Loan Commitment Period, on the closing date of each Permitted
Acquisition, in an aggregate principal amount at any time outstanding (after
giving effect to all requests therefor) up to, but not exceeding, the
Acquisition Loan Commitment of such Lender at such time. The Borrower shall not
be entitled to reborrow all of any part of the principal of Acquisition Loans
which shall be paid or prepaid at any time.
(c) Term Loans. Subject to the terms and conditions set forth in this
Agreement, each Lender with a Term Loan Commitment severally agrees to make a
term loan to the Borrower on the Effective Date in a principal amount equal to
such Lender's Term Loan Commitment Percentage of $105,000,000 (each such term
loan being, individually, a "Term Loan" and, collectively, the "Term Loans").
The Borrower shall not be entitled to reborrow all or any part of the principal
of any Term Loans which shall be paid or prepaid at any time.
(d) Incremental Facility Loans. In addition to borrowings of Term
Loans, Revolving Credit Loans and Acquisition Loans, at any time during the
Incremental Facility Commitment Period, the Borrower may from time to time
request that the Lenders offer to enter into commitments to make additional term
loans (individually, an "Incremental Facility Loan" and collectively, the
"Incremental Facility Loans") to the Borrower hereunder, which commitments
shall, with respect to any Series (as defined below) of any Incremental Facility
Loans, not be less than $10,000,000 nor greater than $50,000,000 in the
aggregate. Subject to the terms and conditions hereof, in the event that one or
more of the Lenders offer, in their sole discretion, to enter into such
commitments, and the Agent, such Lenders and the Borrower agree as to the amount
of such commitments that shall be allocated to the respective Lenders making
such offers and the fees (if any) to be payable by the Borrower in connection
therewith and the other terms of such Incremental Facility
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Loans, then such Lenders shall become obligated to make Incremental Facility
Loans under this Agreement in an amount equal to the amount of their respective
Incremental Facility Commitments. The Incremental Facility Loans to be made
pursuant to any such agreement between the Borrower and one or more Lenders in
response to any such request by the Borrower shall be deemed to be a separate
"Series" of Incremental Facility Loans for all purposes of this Agreement. No
Lender shall be obligated to make any Incremental Facility Loans of any Series
and no Incremental Facility Loans of any Series shall be permitted to be made,
unless:
(i) the terms and conditions of such Series of Incremental
Facility Loans shall have been approved by the Required Lenders;
(ii) no Default or Event of Default is continuing immediately
prior to the making of such Incremental Facility Loan of such Series,
and no Default or Event of Default would result therefrom; and
(iii) the Borrower shall have demonstrated to the reasonable
satisfaction of the Agent (based on, among other things, operating and
financial projections and pro forma financial statements delivered to
the Agent and certified by the Chief Financial Officer) that,
immediately after giving effect to the making of such Incremental
Facility Loans of such Series, all covenants (including all covenants
contained in Article X hereof) contained herein (A) would have been
satisfied on a pro forma basis as at the end of and for the Most Recent
Reference Period, and (B) will be satisfied on a pro forma basis
through the period ending two years after the date such Incremental
Facility Loans of such Series are made.
The aggregate principal amount of all Incremental Facility Commitments and
Incremental Facility Loans shall not exceed $50,000,000.
Section 2.2. Notices Relating to Loans; Requests for Eurodollar Loans.
(a) Notices Relating to Loans. The Borrower shall give the Agent
written or telephonic notice of each termination or reduction of the Revolving
Credit Commitments, the Acquisition Loan Commitments or the Incremental Facility
Commitments, each borrowing and prepayment of a Loan, each continuation or
conversion of a Loan (other than any conversion of Eurodollar Loans to Base Rate
Loans upon the expiration of the Interest Period for such Eurodollar Loans) and
the duration of each Interest Period applicable to each Eurodollar Loan (in each
case, a "Borrowing Notice", which shall be in form and substance satisfactory to
the Agent). Each such notice shall be irrevocable and shall be effective only if
received by the Agent not later than 11 a.m., Boston time, on the date which is:
(i) in the case of each notice of termination or reduction and
each notice of borrowing or prepayment of, or conversion into, Base
Rate Loans, one (1) Business Day prior to the date of the related
termination, reduction, borrowing, prepayment or conversion; and
(ii) in the case of each notice of borrowing or prepayment of,
continuation of or conversion into, Eurodollar Loans, or the duration
of an Interest Period for
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Eurodollar Loans, three (3) Eurodollar Business Days prior to the date
of the related borrowing, prepayment, continuation or conversion.
Each such notice of termination or reduction shall specify the amount thereof.
Each such notice of borrowing, conversion, continuation or prepayment shall
specify the amount (subject to Section 2.1) and type of Loans to be borrowed,
converted, continued or prepaid (and, in the case of a conversion, the type of
Loans to result from such conversion), the date of borrowing, continuation,
conversion or prepayment (which shall be: (x) a Business Day in the case of each
borrowing or prepayment of Base Rate Loans, and (y) a Eurodollar Business Day in
the case of each borrowing or prepayment of Eurodollar Loans and each conversion
of or into a Eurodollar Loan). Each such notice of the duration of an Interest
Period shall specify the Loans to which such Interest Period is to relate. The
Agent shall notify the Lenders of the content of each such Borrowing Notice
promptly after its receipt thereof. Any telephonic notice given under this
Section 2.2 shall be promptly (and in any event, within one (1) Business Day)
confirmed in writing and delivered to the Agent, provided that the Lenders and
the Agent shall be fully entitled to rely on any telephonic notice believed by
the Agent to have been given by an authorized person on behalf of the Borrower.
(b) Requests for Eurodollar Loans. The Borrower may request a Loan in
the form of a Eurodollar Loan only if compliance with Section 2.5 (with the
payments provided for therein being applied in accordance with Subsection
2.5(h)) would not result in any portion of the principal amount of such
Eurodollar Loan being paid prior to the last day of the Interest Period
applicable thereto. No Lender shall have more than seven (7) Eurodollar Loans
outstanding at any one time.
Section 2.3. Disbursement of Loan Proceeds. Not later than 1:00 p.m.,
Boston time, on the date specified for each borrowing hereunder, each Lender
shall transfer to the Agent, by wire transfer or otherwise, but in any event in
immediately available funds, the amount of the Loan to be made by it on such
date, and the Agent, upon its receipt thereof, shall disburse such sum to the
Borrower by depositing the amount thereof in an account of the Borrower
designated by the Borrower and maintained with the Agent.
Section 2.4. Notes.
(a) Revolving Credit Notes. The Revolving Credit Loans made by any
Lender shall be evidenced by a single promissory note of the Borrower
substantially in the form of Exhibit A-1 annexed hereto (each, a "Revolving
Credit Note" and, collectively, the "Revolving Credit Notes"), with appropriate
insertions. Each Revolving Credit Note shall be payable to the order of such
Lender in a principal amount equal to such Lender's Revolving Credit Commitment,
and shall otherwise be duly completed. The Revolving Credit Loans shall be
payable as provided in Section 2.5.
(b) Term Loan Notes. The Term Loans made by any Lender shall be
evidenced by a single promissory note of the Borrower substantially in the form
of Exhibit A-2 annexed hereto (each, a "Term Loan Note" and, collectively, the
"Term Loan Notes"), with appropriate insertions. Each Term Loan Note shall be
payable to the order of such Lender in a principal amount equal to such Lender's
Term Loan Commitment as of the Effective Date (or in the case of a Term Loan
Note issued pursuant to Section 13.11(b), the respective
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Term Loan evidenced thereby at the time of issuance), and shall otherwise be
duly completed. The Term Loan Notes shall be payable as provided in Section 2.5.
(c) Acquisition Loan Notes. The Acquisition Loans made by any Lender
shall be evidenced by a single promissory note of the Borrower substantially in
the form of Exhibit A-3 annexed hereto (each, an "Acquisition Loan Note" and,
collectively, the "Acquisition Loan Notes"), with appropriate insertions. Each
Acquisition Loan Note shall be payable to the order of such Lender in a
principal amount equal to such Lender's Acquisition Loan Commitment as of the
Effective Date (or in the case of an Acquisition Loan Note issued pursuant to
Section 13.11(b), the Acquisition Loan Commitment or, after the termination of
the Acquisition Loan Commitment Period, the Acquisition Loans, evidenced thereby
at the time of issuance), and shall otherwise be duly completed. The Acquisition
Loan Notes shall be payable as provided in Section 2.5.
(d) Incremental Facility Loan Notes. The Incremental Facility Loans of
each Series made by any Lender shall be evidenced by a single promissory note of
the Borrower substantially in the form of Exhibit A-4 annexed hereto (each, an
"Incremental Facility Loan Note and, collectively, the Incremental Facility Loan
Notes"). Each Incremental Facility Loan Note of each Series shall be dated on or
prior to the date the related Incremental Facility Loan is made, shall be
payable to the order of such Lender in a principal amount equal to such Lender's
Incremental Facility Loan Commitment for such Series (or in the case of an
Incremental Facility Loan Note issued pursuant to Section 13.11(b), the
Incremental Facility Loan evidenced thereby at the time of issuance), and shall
otherwise be duly completed. The Incremental Facility Loan Notes shall be
payable as provided in Section 2.5.
(e) Notations on Notes. Each Lender may enter on a schedule attached to
each of its Notes a notation with respect to each Loan evidenced thereby of: (A)
the date and principal amount thereof, (B) each payment and prepayment of
principal thereof, (C) whether such Loan is a Base Rate Loan or a Eurodollar
Loan, and (D) the Interest Period for such Loan, if applicable. The failure of
any Lender to make a notation on the schedule to any of its Notes as aforesaid
shall not limit or otherwise affect the obligation of the Borrower to repay the
Loans in accordance with their respective terms as set forth herein.
Section 2.5. Mandatory Principal Payments.
(a) Repayment of Revolving Credit Loans at Maturity Date. All Revolving
Credit Loans shall mature on the Maturity Date. All principal of, interest on
and other amounts payable in respect of Revolving Credit Loans will, if not
sooner paid, be absolutely due and payable on the Maturity Date.
(b) Scheduled Repayments of Term Loans. The Borrower shall pay to the
Agent, for the account of the Lenders with Term Loans, principal of the Term
Loans in consecutive quarterly installments payable on the last day of each
March, June, September and December, commencing on June 30, 2003, and on the
Maturity Date (each such date a "Term Loan Payment Date"). The aggregate
principal amount of the Term Loans due each Term Loan Payment Date shall be the
amount obtained by (i) multiplying (A) $105,000,000 by (B) the percentage set
forth below opposite the period during which such Term Loan
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Payment Date falls and (ii) dividing the product of clause (i) above by the
number of Term Loan Payment Dates in such period.
AMORTIZATION
PERIOD PERCENTAGE
------ ----------
Effective Date - 12/31/02 0.00%
1/1/03 - 12/31/03 12.50%
1/1/04 - 12/31/04 12.50%
1/1/05 - 12/31/05 15.00%
1/1/06 - 12/31/06 17.50%
1/1/07 - 12/31/07 20.00%
1/1/08 - 9/30/08 22.50%
TOTAL 100.00%
The Term Loans shall in any event mature on the Maturity Date. All principal of,
interest on and other amounts payable in respect of the Term Loans will, if not
sooner paid, become and be absolutely due and payable on the Maturity Date.
(c) Scheduled Repayments of Acquisition Loans. The Borrower shall pay
to the Agent, for the account of the Lenders with Acquisition Loans, the
aggregate principal amount of the Acquisition Loans outstanding on the
Conversion Date in consecutive quarterly installments payable on the last day of
each March, June, September and December, commencing on June 30, 2003, and on
the Maturity Date (each such date an "Acquisition Loan Payment Date"). The
aggregate principal amount of the Acquisition Loans due each Acquisition Loan
Payment Date shall be the amount obtained by (i) multiplying (A) the aggregate
principal amount of the Acquisition Loans outstanding on the Conversion Date by
(B) the percentage set forth below opposite the period during which such
Acquisition Loan Payment Date falls and (ii) dividing the product of clause (i)
above by the number of Acquisition Loan Payment Dates in such period.
AMORTIZATION
PERIOD PERCENTAGE
------ ----------
Effective Date - 12/31/02 0.00%
1/1/03 - 12/31/03 12.50%
1/1/04 - 12/31/04 12.50%
1/1/05 - 12/31/05 15.00%
1/1/06 - 12/31/06 17.50%
1/1/07 - 12/31/07 20.00%
1/1/08 - 9/30/08 22.50%
TOTAL 100.00%
All Acquisition Loans shall in any event mature on the Maturity Date. All
principal of, interest on and other amounts payable in respect of the
Acquisition Loans will, if not sooner paid, become and be absolutely due and
payable on the Maturity Date.
(d) Scheduled Repayments of Incremental Facility Loans. The Borrower
shall pay to the Agent, for the account of the Lenders with Incremental Facility
Loans, the aggregate principal amount of the Incremental Facility Loans
outstanding on the
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Conversion Date in consecutive quarterly installments payable on the last day of
each March, June, September and December, commencing on June 30, 2003, and on
the Maturity Date (each such date an "Incremental Facility Loan Payment Date").
The aggregate principal amount of the Incremental Facility Loans due each
Incremental Facility Loan Payment Date shall be the amount obtained by (i)
multiplying (A) the aggregate principal amount of the Incremental Facility Loans
outstanding on the Conversion Date by (B) the percentage set forth below
opposite the period during which such Incremental Facility Loan Payment Date
falls and (ii) dividing the product of clause (i) above by the number of
Incremental Facility Loan Payment Dates in such period.
AMORTIZATION
PERIOD PERCENTAGE
------ ----------
Effective Date - 12/31/02 0.00%
1/1/03 - 12/31/03 12.50%
1/1/04 - 12/31/04 12.50%
1/1/05 - 12/31/05 15.00%
1/1/06 - 12/31/06 17.50%
1/1/07 - 12/31/07 20.00%
1/1/08 - 9/30/08 22.50%
TOTAL 100.00%
All Incremental Facility Loans shall in any event mature on the Maturity Date.
All principal of, interest on and other amounts payable in respect of the
Incremental Facility Loans will, if not sooner paid, become and be absolutely
due and payable on the Maturity Date.
(e) Mandatory Payments from Excess Cash Flow. On March 31 of each year,
commencing March 31, 2003, the Borrower shall prepay Loans in an aggregate
principal amount equal to (i) 40% of Excess Cash Flow for the fiscal year of the
Borrower most recently ended if the Total Funded Debt Leverage Ratio of the
Borrower and its Restricted Subsidiaries at the end of such fiscal year was
equal to or greater than 4.00:1.00, and (ii) 0% of Excess Cash Flow for such
fiscal year if the Total Funded Debt Leverage Ratio of the Borrower and its
Restricted Subsidiaries at the end of such fiscal year was less than 4.00:1.00
(each such payment being referred to herein as an "Excess Cash Flow Payment").
Excess Cash Flow Payments shall be applied as provided in Subsection 2.5(h).
(f) Mandatory Payments in Connection with Prepayment Events.
(i) The Borrower shall, not later than the Business Day next
following each day any Net Proceeds are received by any Borrower
Affiliated Company, pay to the Agent the amount of such Net Proceeds
(each such payment to the Agent being referred to herein as a "Net
Proceeds Payment" and the date of each such payment being referred to
herein as a "Net Proceeds Payment Date"). Each Net Proceeds Payment
shall be applied as provided in Subsection 2.5(h).
(ii) Notwithstanding the foregoing, the Borrower shall not be
required to make a Net Proceeds Payment with respect to any Net
Proceeds if (A) the Borrower notifies the Agent in writing at the time
such Net Proceeds are received that it
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intends to use such Net Proceeds to finance a Permitted Acquisition and
(B) each of the following conditions is satisfied:
(x) such Net Proceeds are either (i) held by the Collateral
Trustee in the Reinvestment Collateral Account pending
application of such Net Proceeds, in which event the
Collateral Trustee need not release such Net Proceeds to the
Borrower except upon presentation of evidence satisfactory to
it that such Net Proceeds are to be applied in accordance with
the provisions of this Agreement, or (ii) applied by the
Borrower to the prepayment of Revolving Credit Loans hereunder
(in which event the Borrower shall notify the Agent in writing
at the time of such prepayment of Revolving Credit Loans that
such prepayment is being made from such Net Proceeds and that,
as provided in Subsection 2.1(a), a portion of the Revolving
Credit Commitments equal to the amount of such prepayment
constitutes a Reserved Commitment Amount); and
(y) such Net Proceeds are in fact so used to finance a
Permitted Acquisition within nine months after the date such
Net Proceeds are received (or, if the Borrower has, prior to
the expiration of such nine month period, entered into a
binding written agreement to make a Permitted Acquisition no
later than the date which is six months after the termination
of such nine month period, within fifteen months after the
date such Net Proceeds are received), it being understood
that, in the event Net Proceeds from more than one Prepayment
Event are held by the Collateral Trustee in the Reinvestment
Collateral Account or applied to the prepayment of Revolving
Credit Loans in accordance with clause (x) above, such Net
Proceeds shall be deemed to be released (or, as the case may
be, Revolving Credit Loans utilizing the Reserved Commitment
Amount shall be deemed to be made) in the same order in which
such Prepayment Events occurred and, accordingly, (A) any such
Net Proceeds so held for more than nine months (or, as
provided above, fifteen months) shall be forthwith used to
make a Net Proceeds Payment and applied as provided in
Subsection 2.5(h)(i) and (B) any Reserved Commitment Amount
that remains so unutilized for more than nine months (or, as
provided above, fifteen months) shall be utilized through the
borrowing by the Borrower of Revolving Credit Loans, the
proceeds of which shall be applied as provided in Subsection
2.5(h)(i).
(g) Mandatory Payments if Loans Exceed Related Maximum Commitments.
(i) Upon any reduction in the Total Revolving Credit
Commitment, the Borrower agrees immediately to repay principal of
Revolving Credit Loans in such amount as may be necessary so that the
Revolving Credit Outstandings do not exceed the Total Revolving Credit
Commitment, as so reduced.
(ii) At any time during the Acquisition Loan Commitment
Period, upon any reduction in the Total Acquisition Loan Commitment,
the Borrower agrees immediately to repay principal of Acquisition Loans
in such amount as may be necessary so that the outstanding Acquisition
Loans do not exceed the Total Acquisition Loan Commitment, as so
reduced.
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(iii) At any time during the Incremental Facility Commitment
Period, upon any reduction in the aggregate amount of the Incremental
Facility Commitments of any Series, the Borrower agrees immediately to
repay principal of Incremental Facility Loans of such Series in such
amount as may be necessary so that the outstanding Incremental Facility
Loans of such Series do not exceed the aggregate amount of the
Incremental Facility Commitments of such Series, as so reduced.
(h) Application of Payments.
(i) All Excess Cash Flow Payments, all Net Proceeds Payments
and all proceeds of Revolving Credit Loans that utilize a Reserved
Commitment Amount and do not finance a Permitted Acquisition in
accordance with Subsection 2.5(f)(ii)(y) shall be applied by the Agent
to pay principal of the Term Loans, the Acquisition Loans and the
Incremental Facility Loans of each Series, on a pro rata basis,
determined based on the aggregate principal amount of each such Tranche
of Loans outstanding immediately prior to such application.
(ii) Each payment of Term Loans pursuant to clause (i) of this
Subsection 2.5(h) shall reduce the remaining scheduled installments of
principal of the Term Loans on a pro rata basis (based upon the
remaining principal amount of each such installment at the time of such
payment).
(iii) Each payment prior to the Conversion Date of any
Acquisition Loans or Incremental Facility Loans of any Series pursuant
to clause (i) of this Subsection 2.5(h) may not be reborrowed and shall
reduce the remaining scheduled installments of principal of such Loans
by operation of the applicable provisions of Section 2.16. Each payment
on or after the Conversion Date of any Acquisition Loans or Incremental
Facility Loans of any Series pursuant to clause (i) of this Subsection
2.5(h) shall reduce the remaining scheduled installments of principal
of such Loans on a pro rata basis (based upon the remaining principal
amount of each such installment at the time of such payment).
(iv) Except for payments and prepayments required to be made
pursuant to Subsections 2.5(a) through (g), and except for payments
required to be made pursuant to Sections 2.20, 2.21 and 2.23, all
payments and repayments made pursuant to the terms hereof shall be
applied (A) first to all (if any) Obligations (except principal,
interest and Fees) due and payable under this Agreement at such time,
(B) then to payment of all Fees due and payable at such time, (C) then
to interest due and payable at such time, (D) then to accrued interest
and then to principal of Base Rate Loans, and (E) finally, to principal
of Eurodollar Loans.
Section 2.6. Reduction or Termination of Commitments; Voluntary
Payments.
(a) Voluntary Reduction or Termination of Commitments. The Borrower
shall be entitled to terminate or reduce the Revolving Credit Commitments, the
Acquisition Loan Commitments and/or the Incremental Facility Commitments from
time to time subject to the terms and conditions set forth herein, provided that
(i) the Borrower must give notice of
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such termination or reduction to the Lenders as provided in Section 2.2 and (ii)
any partial reduction of any such Commitments shall be in an integral multiple
of One Million Dollars ($1,000,000). Any such termination or reduction shall be
permanent and irrevocable.
(b) Voluntary Prepayments. The Borrower shall be entitled to prepay the
Revolving Credit Loans, the Term Loans, the Acquisition Loans and the
Incremental Facility Loans from time to time (in accordance with Section 2.11),
in whole or in part, without premium or penalty, provided, that (i) the Borrower
must give notice of such payment to the Agent as provided in Section 2.2, and
(ii) Eurodollar Loans may be repaid only on the last day of an Interest Period
for such Loans. All prepayments of Term Loans pursuant to this paragraph (b),
and all prepayments of Acquisition Loans or Incremental Facility Loans after the
Conversion Date pursuant to this paragraph (b), shall reduce the then remaining
scheduled installments of such Tranche of Loans being prepaid on a pro rata
basis (based upon the principal amount of each such installment at the time of
such payment). Optional prepayments of Revolving Credit Loans may, subject to
the terms and conditions hereof, be reborrowed hereunder until the Revolving
Credit Commitments are terminated. Optional prepayments of Terms Loans,
Acquisition Loans or Incremental Facility Loans may not be reborrowed.
Section 2.7. Interest.
(a) Base Rate Loans. Each Base Rate Loan shall bear interest at the
Base Rate plus the Applicable Margin for Base Rate Loans then in effect.
(b) Eurodollar Loans. Each Eurodollar Loan shall bear interest at the
Eurodollar Rate applicable to such Loan and the Interest Period therefor, plus
the Applicable Margin for Eurodollar Loans in effect on the first day of such
Interest Period.
(c) Default Rate. Notwithstanding the foregoing, during the continuance
of a Specified Default, the Borrower shall pay interest at the applicable
Default Rate on the principal of the Loans and (to the extent permitted by law)
interest and all other amounts payable hereunder or under any of the other Loan
Documents.
(d) Payment of Interest. Except as provided in the next sentence,
accrued interest on each Loan shall be payable: (i) in the case of each Base
Rate Loan, quarterly in arrears on the Quarterly Dates, (ii) in the case of each
Eurodollar Loan, on the last day of the Interest Period for such Loan (and, if
such Interest Period exceeds three months' duration, quarterly, on any Quarterly
Date falling during such Interest Period), (iii) in the case of any Loan, (A)
upon any payment or prepayment thereof or the conversion thereof into a Loan of
another type (but only on the principal so paid, prepaid or converted) and (B)
on the Maturity Date, (iv) in the case of the Revolving Credit Loans, on the
date of termination of the Revolving Credit Commitments, (v) in the case of the
Acquisition Loans on the date of termination of the Acquisition Loan
Commitments, and (vi) in the case of the Incremental Facility Loans on the date
of termination of the Incremental Facility Loan Commitments. Interest which is
payable at the Default Rate shall be payable from time to time on demand of the
Agent or any Lender. Promptly after the establishment of any interest rate
provided for herein or any change therein, the Agent will notify the Lenders and
the Borrower thereof, provided that the failure of the Agent to so notify the
Borrower or
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the Lenders shall not affect the obligations of the Borrower hereunder or under
any of the Notes in any respect.
Section 2.8. Fees.
(a) Revolving Credit Commitment Fees. The Borrower shall pay to the
Agent, for the accounts of the Lenders with Revolving Credit Commitments, with
respect to any calendar quarter or portion thereof commencing on or after the
Effective Date, commitment fees ("Revolving Credit Commitment Fees") in an
amount equal to the product of (i) the daily average amount of the Available
Revolving Credit Commitments during the applicable calendar quarter or portion
thereof and (ii) the annual rate set forth in the table below based upon the
Utilization Level for such calendar quarter or portion thereof. The Revolving
Credit Commitment Fees shall be payable (i) quarterly in arrears on the
Quarterly Dates, and (ii) on the date the Revolving Credit Commitments
terminate.
Utilization Level Annual Rate
----------------- -----------
Greater than 50% 0.375%
Less than or equal to 50% 0.500%
but greater than 25%
Less than or equal to 25% 0.625%
(b) Acquisition Loan Commitment Fees. The Borrower shall pay to the
Agent, for the accounts of the Lenders with Acquisition Loan Commitments, with
respect to any calendar quarter or portion thereof commencing on or after the
Effective Date, commitment fees ("Acquisition Loan Commitment Fees") in an
amount equal to the product of (i) the daily average amount of the Available
Acquisition Loan Commitments during the applicable calendar quarter or portion
thereof and (ii) the annual rate set forth in the table below based upon the
Utilization Level for such calendar quarter or portion thereof. The Acquisition
Loan Commitment Fees shall be payable (i) quarterly in arrears on the Quarterly
Dates and (ii) on the date the Acquisition Loan Commitments terminate.
Utilization Level Annual Rate
----------------- -----------
Greater than 50% 0.375%
Less than or equal to 50% 0.500%
but greater than 25%
Less than or equal to 25% 0.625%
(c) Other Fees. The Borrower shall pay to the Agent certain fees as
provided in the Fee Letter.
Section 2.9. Use of Proceeds of Loans. The Borrower hereby covenants,
warrants and represents as follows:
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(a) All proceeds of Revolving Credit Loans shall be used by the
Borrower solely (i) for working capital and general corporate purposes of the
Principal Companies (including the making of Investments permitted by paragraphs
(a), (b), (c), (f) and (i) of Section 9.4), (ii) to finance Permitted
Acquisitions and (iii) to finance the repurchase of shares of Class A Common
Stock of the Borrower in accordance with the terms and conditions of paragraph
(c) of Section 9.5; provided, however, that (i) any proceeds of Revolving Credit
Loans that would utilize any Reserved Commitment Amount shall be applied solely
(x) to finance a Permitted Acquisition in accordance with Subsection
2.5(f)(ii)(y) or (y) as provided in Subsection 2.5(h)(i); and (ii) proceeds of
Revolving Loans shall not be used to finance any Permitted Acquisitions, unless
(A) the Acquisition Loan Commitments have either been fully utilized or
terminated at the time of the Loan request, and (B) after giving effect to the
making of such Revolving Credit Loans, the aggregate amount of Revolving Loans
made from and after the Effective Date and used to finance all Permitted
Acquisitions does not exceed $10,000,000. The $10,000,000 limitation in the
preceding clause (ii) shall not limit the amount of Revolving Credit Loans the
proceeds of which utilize any Reserved Commitment Amount and are used to finance
a Permitted Acquisition in accordance with Subsection 2.5(f)(ii)(y).
(b) All proceeds of Term Loans shall be used by the Borrower solely (i)
to repay the Obligations (as defined under the Existing Credit Agreement) of the
Borrower under the Existing Credit Agreement, (ii) to pay fees, costs and
expenses incurred by the Borrower and its Restricted Subsidiaries in connection
with the Transaction, (iii) to make Investments permitted by Subsection 9.4(a),
and (iv) to finance Permitted Acquisitions and to pay fees, costs and expenses
incurred in connection therewith.
(c) All proceeds of Acquisition Loans shall be used by the Principal
Companies solely to finance Permitted Acquisitions and to pay fees, costs and
expenses incurred in connection therewith.
(d) All proceeds of Incremental Facility Loans shall be used by the
Principal Companies solely to finance Permitted Acquisitions and to pay fees,
costs and expenses incurred in connection therewith.
(e) No part of the proceeds of any Loan will be used (directly or
indirectly) (i) to purchase or carry, or to extend credit to any Person or
Persons for the purpose of purchasing or carrying (A) any margin security or
margin stock (within the meaning of Regulations U and X of the Board of
Governors of the Federal Reserve System) or (B) any other stock of any class in
the capital of the Borrower, or (ii) otherwise in any manner which would be in
violation of such Regulations U or X.
Section 2.10. Computations. Interest on Eurodollar Loans and each Fee
(other than the Agent's Fee) shall be computed on the basis of a year of 360
days and actual days elapsed (including the first day but excluding the last)
during the period for which payable. Interest on Base Rate Loans shall be
computed on the basis of a year of 365 or 366 days (as the case may be), and
actual days elapsed (including the first day but excluding the last) during the
period for which payable.
Section 2.11. Minimum Amounts of Borrowings, Conversions and
Prepayments. Except for borrowings of Revolving Credit Loans, Acquisition Loans
or Incremental Facility
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Loans which exhaust the full remaining amount of the Revolving Credit
Commitments, the Acquisition Loan Commitments or the Incremental Facility
Commitments of any Series, respectively, conversions or prepayments of all Loans
of a particular type, or conversions made pursuant to Sections 2.19, 2.20(c) or
2.22, each borrowing, each conversion of Loans of one type into Loans of another
type and each prepayment of principal of Loans hereunder shall (i) in the case
of Base Rate Loans, be in an integral multiple of $100,000, and (ii) in the case
of Eurodollar Loans, be in a minimum amount of $1,000,000 and in an integral
multiple of $100,000 if in excess of $1,000,000 (prepayments of different types
of Loans at the same time to be deemed separate borrowings, conversions or
prepayments for purposes of the foregoing, one for each type).
Section 2.12. Time and Method of Payments. All payments of principal,
interest, Fees and other amounts (including indemnities) payable by any
Principal Company hereunder shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to the Agent at its Principal
Office on the date on which such payment shall become due; provided, however,
that any payment not received by the Agent by 1:00 p.m., Boston time, on the
date made shall be deemed received on the next Business Day; provided, however,
that no Default shall be deemed to have occurred under Section 11.1 if payment
is received after 1:00 p.m., Boston time, but prior to 5:00 p.m., Boston time,
on the date on which such payment shall become due. The Agent or any Lender for
whose account any such payment is to be made may, but shall not be obligated to,
debit the amount of any such payment which is not made by such time to any
ordinary deposit account of the Borrower with the Agent or such Lender, as the
case may be. Each payment received by the Agent hereunder for the account of a
Lender shall be paid promptly to such Lender, in like funds, for the account of
such Lender's Applicable Lending Office for the Loan in respect of which such
payment is made. If any payment of principal or interest becomes due on a day
other than a Business Day, such payment may be made on the next succeeding
Business Day, and such extension shall be included in computing interest in
connection with such payment. All payments hereunder and under the Notes shall
be made without set-off or counterclaim and in such amounts as may be necessary
in order that all such payments shall not be less than the amounts otherwise
specified to be paid under this Agreement and the Notes after withholding for or
on account of (i) any present or future taxes, levies, imposts, duties or other
similar charges of whatever nature imposed by any government or any political
subdivision or taxing authority thereof, other than any tax (except those
referred to in clause (ii) below) on or measured by the net income of the Lender
to which any such payment is due pursuant to applicable federal, state and local
income tax laws, and (ii) deduction of amounts equal to the taxes on or measured
by the net income of such Lender payable by such Lender with respect to the
amount by which the payments required to be made under this sentence exceed the
amounts otherwise specified to be paid in this Agreement and the Notes. Upon
payment in full of any Note, and in the case of any Lender holding any Revolving
Credit Note, the termination of the Revolving Credit Commitment of such Lender,
the Lender holding such Note shall xxxx the Note "Paid" and return it to the
Borrower.
Section 2.13. Lending Offices. The Loans of each type made by each
Lender shall be made and maintained at such Lender's Applicable Lending Office
for Loans of such type.
Section 2.14. Several Obligations. The failure of any Lender to make
any Loan to be made by it on the date specified therefor shall not relieve the
other Lenders of their
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respective obligations to make their Loans on such date, but no Lender shall be
responsible for the failure of any other Lender to make Loans to be made by such
other Lender.
Section 2.15. Security.
(a) Collateral. In order to secure the payment and performance of all
the Obligations, it is the intention and understanding of each of the parties
hereto that the following Collateral has been or will be made available to the
Collateral Trustee on or prior to the Effective Date:
(i) the Borrower shall grant to the Collateral Trustee,
pursuant to the Borrower Stock Pledge Agreement, a first-priority
perfected security interest in and to all of the Capital Stock of each
direct Restricted Subsidiary of the Borrower;
(ii) Saga Broadcast shall grant to the Collateral Trustee,
pursuant to the Saga Broadcast Stock Pledge Agreement, a first-priority
perfected security interest in and to all of the Capital Stock of each
direct Restricted Subsidiary of Saga Broadcast;
(iii) Lakefront shall grant to the Collateral Trustee,
pursuant to the Lakefront Pledge Agreements, a first-priority perfected
security interest in and to all of the Capital Stock of each direct
Restricted Subsidiary of Lakefront;
(iv) the Borrower shall grant to the Collateral Trustee,
pursuant to the Borrower Security Agreement, a first-priority security
interest (subject to Liens permitted by Section 9.2) in and to all of
its Assets of every description (other than those Assets set forth on
Schedule 4.4(a) or Assets which are expressly excluded by the express
terms of the Borrower Security Agreement);
(v) the Restricted Subsidiaries shall grant to the Collateral
Trustee, pursuant to the terms of the Borrower Subsidiary Security
Agreement (to the maximum extent permitted by applicable law), a first
priority security interest (subject to Liens permitted by Section 9.2)
in and to all of their Assets of every description (other than those
Assets set forth on Schedule 4.4(a) or Assets which are expressly
excluded by the express terms of the Borrower Subsidiary Security
Agreement); and
(vi) the due payment and performance in full of the
Obligations shall be guaranteed to the Lenders by each of the
Guarantors, upon the terms and subject to the conditions contained in
Article VI hereof.
(b) Additional Collateral. It is also the intention and understanding
of the parties hereto that the Collateral Trustee shall be granted additional
Collateral from time to time pursuant to Sections 8.12 and 8.15 to secure the
payment and performance of all the Obligations. The Principal Companies shall
execute and deliver such other agreements, instruments and documents as the
Agent or the Collateral Trustee (with the consent of the Agent) reasonably
requests in order to effect the purposes of the Security Documents and the other
Loan Documents.
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(c) Description of Collateral. Reference is hereby made to the Loan
Documents for a complete statement of the terms and provisions relating to, and
for a complete description of, the Collateral.
Section 2.16. Pro Rata Treatment Among Lenders. Except as otherwise
provided herein: (i) each borrowing of Revolving Credit Loans, Term Loans,
Acquisition Loans or Incremental Facility Loans of any Series will be made from
the Lenders pro rata according to their respective Commitments with respect to
such Tranche of Loans, as applicable; (ii) each payment of each Revolving Credit
Commitment Fee, Acquisition Loan Commitment Fee, and Letter of Credit Fee (other
than the Issuing Bank Fee) shall be made for the account of the Lenders pro rata
according to their respective applicable Commitments; (iii) each partial
reduction of the Revolving Credit Commitments, Acquisition Loan Commitments or
Incremental Facility Commitments of any Series shall be applied to the
applicable Tranche of Commitments of each Lender pro rata according to each
Lender's respective Commitment with respect to such Tranche; (iv) each
conversion of Loans of a particular type under Section 2.19 (other than
conversions provided for by Section 2.23 or 2.24) will be made pro rata among
the Lenders holding Loans of such type according to the respective principal
amounts of such Loans held by such Lenders; (v) each payment and prepayment of
principal of or interest on Loans of a particular Tranche will be made to the
Agent for the account of the Lenders holding Loans of such Tranche pro rata in
accordance with the respective unpaid principal amounts of such Loans held by
such Lenders; (vi) each purchase by Revolving Credit Lenders of a participation
in each Letter of Credit issued by the Issuing Bank under Article III hereof
will be made by such Lenders in accordance with such Lender's Revolving Credit
Commitment Percentage; and (vii) Interest Periods for Loans of a particular type
shall be allocated among the Lenders holding Loans of such type pro rata
according to the respective principal amounts of such Loans held by such
Lenders.
Section 2.17. Non-Receipt of Funds by Agent. Unless the Agent shall
have been notified by a Lender or the Borrower (the "Payor") prior to the date
on which such Lender is to make payment to the Agent of the proceeds of a Loan
to be made by it hereunder or any Principal Company is to make a payment to the
Agent for the account of one or more of the Lenders, as the case may be (each
such payment being herein called a "Mandatory Payment"), which notice shall be
effective upon receipt, that the Payor does not intend to make the Mandatory
Payment to the Agent, the Agent may assume that the Mandatory Payment has been
made and may, in reliance upon such assumption (but shall not be required to),
make the amount thereof available to the intended recipient on such date and, if
the Payor has not in fact made the Mandatory Payment to the Agent, the recipient
of such payment shall, on demand, repay to the Agent the amount made available
to it together with interest thereon in respect of each day during the period
commencing on the date such amount was so made available by the Agent until the
date the Agent recovers such amount at a rate per annum equal to the Federal
Funds Rate for such day (when the recipient is a Lender) or equal to the rate of
interest applicable to such Loan (when the recipient is the Borrower).
Section 2.18. Sharing of Payments and Set-Off Among Lenders. The
Borrower hereby agrees that, in addition to (and without limitation of) any
right of set-off, banker's lien or counterclaim a Lender may otherwise have,
each Lender shall be entitled, at its option, to offset balances held by it at
any of its offices against any principal of or interest on any of its Loans
hereunder, or any Fee payable to it, which is not paid when due
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(regardless of whether such balances held by such Lender are then due to the
Borrower), in which case it shall promptly notify the Borrower and the Agent
thereof, provided that its failure to give such notice shall not affect the
validity thereof. If a Lender shall effect payment of any principal of or
interest on any of its Loans hereunder or any Fee payable to it, through the
exercise of any right of set-off, banker's lien, counterclaim, or otherwise, it
shall promptly purchase at par from the other Lenders participations in the
corresponding Obligations held by the other Lenders in such amounts, and make
such other adjustments from time to time as shall be equitable, to the end that
all the Lenders shall share the benefit of such payment pro rata in accordance
with the unpaid principal and interest on the Obligations held by each of them.
To such end all the Lenders shall make appropriate adjustments among themselves
(by the resale of participations sold or otherwise) if such payment is rescinded
or must otherwise be restored. The Borrower agrees that any Lender so purchasing
a participation in the Loans held by the other Lenders may exercise all rights
of set-off, banker's lien, counterclaim or similar rights with respect to such
participation as fully as if such Lender were a direct holder of Obligations in
the amount of such participation. Nothing contained herein shall require any
Lender to exercise any such right or shall affect the right of any Lender to
exercise and retain the benefits of exercising any such right with respect to
any other indebtedness or obligation of the Borrower.
Section 2.19. Conversion of Loans; Continuation of Loans.
(a) The Borrower shall have the right to convert Loans of one type of a
Tranche into Loans of another type of such Tranche from time to time, provided
that: (i) the Borrower shall give the Agent notice of each such conversion as
provided in Section 2.2; (ii) Eurodollar Loans may be converted only on the last
day of an Interest Period for such Loans; and (iii) no Base Rate Loan may be
converted into a Eurodollar Loan if on the proposed date of conversion a Default
or an Event of Default exists. The Agent shall notify the Lenders of the
effectiveness of such conversion, and the new interest rate to which the
converted Loans are subject, as soon as practicable after the conversion.
(b) The Borrower shall have the right to continue any Eurodollar Loan
of a Tranche as a Eurodollar Loan of the same Tranche upon the expiration of an
Interest Period with respect thereto, provided that: (i) the Borrower shall give
the Agent notice of such continuation as provided in Section 2.2; and (ii) no
Eurodollar Loan may be continued as such when any Default or Event of Default
has occurred and is continuing, but shall be automatically converted to a Base
Rate Loan on the last day of the first Interest Period relating thereto ending
during the continuance of any Default or Event of Default. In the event that the
Borrower fails to provide any such notice with respect to the continuation of
any Eurodollar Loan as such, then such Eurodollar Loan shall be automatically
converted to a Base Rate Loan on the last day of the first Interest Period
relating thereto. The Agent shall notify the Lenders promptly (A) when any such
automatic conversion contemplated by this Section 2.19 is scheduled to occur;
and (B) of the effectiveness of the continuation of any Eurodollar Loan and the
new interest rate to which such continued Eurodollar Loan is subject.
Section 2.20. Additional Costs; Capital Requirements.
(a) In the event that any existing or future law or regulation,
guideline or interpretation thereof, by any Governmental Authority charged with
the administration
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thereof, or compliance by any Lender or any Affiliate of any Lender with any
request or directive (whether or not having the force of law) of any such
Authority shall impose, modify or deem applicable or result in the application
of, any capital maintenance, capital ratio or similar requirement against any
Lender's Loans or Commitments hereunder, and the result of any such event is to
impose upon any Lender or any Affiliate of any Lender or increase any capital
requirement applicable as a result of the making or maintenance of such Lender's
Credit Extensions or its Commitments or the obligation of the Borrower hereunder
with respect to such Commitments (which imposition of capital requirements may
be determined by such Lender's reasonable allocation of the aggregate of such
capital increases or impositions), then such Lender may make demand on the
Borrower and within 30 days after demand made by such Lender (a copy of which
demand shall be delivered to the Agent), the Borrower shall immediately pay to
such Lender from time to time as specified by such Lender additional amounts
which shall be sufficient to compensate such Lender for such imposition of or
increase in capital requirements together with interest on each such amount from
the date such payment becomes due until payment in full thereof at the Default
Rate, provided, however, that if such Lender does not make demand on the
Borrower within 90 days after becoming aware of such imposition or increase in
capital requirements, then such Lender may make demand only for such additional
amounts which shall be sufficient to compensate such Lender for such imposition
or increase in capital requirements for periods not preceding the day 90 days
prior than the date on which demand is made. A certificate setting forth in
reasonable detail the amount necessary to compensate such Lender as a result of
an imposition of or increase in capital requirements submitted by such Lender to
the Borrower shall be conclusive, absent manifest error, as to the amount
thereof.
(b) In the event that any Regulatory Change shall: (i) change the basis
of taxation of any amounts payable to any Lender under this Agreement or the
Notes in respect of any Loans including Eurodollar Loans (other than taxes
imposed on the overall net income of such Lender); or (ii) impose or modify any
reserve, FDIC premium or assessment, special deposit or similar requirements
relating to any extensions of credit or other assets of, or any deposits with or
other liabilities of, such Lender (including any of such Loans or any deposits
referred to in the definition of "Eurodollar Base Rate" in Article I hereof); or
(iii) impose any other conditions affecting this Agreement in respect of Loans,
including Eurodollar Loans (or any of such extensions of credit, assets,
deposits or liabilities); and the result of any event referred to in clause (i),
(ii) or (iii) above shall be to increase such Lender's costs of making or
maintaining any Loans, including Eurodollar Loans, or its Commitments, or to
reduce any amount receivable by such Lender hereunder in respect of any of its
Eurodollar Loans, or its Commitments (such increases in costs and reductions in
amounts receivable are hereinafter referred to as "Additional Costs") in each
case, only to the extent that such Additional Costs are not included in the
Eurodollar Base Rate applicable to such Eurodollar Loans, then such Lender may
make demand on the Borrower and within 30 days after demand made by such Lender
(a copy of which demand shall be delivered to the Agent), the Borrower shall pay
to such Lender from time to time as specified by such Lender, additional amounts
which shall be sufficient to compensate such Lender for such increased cost or
reduction in amounts receivable by such Lender from the date of such change,
together with interest on each such amount from the date such payment becomes
due until payment in full thereof at the Default Rate, provided, however, that
if such Lender does not make demand on the Borrower within 90 days after
becoming aware of such Regulatory Change, then such Lender may make demand only
for such
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additional amounts as shall be sufficient to compensate such Lender for
increased costs or reductions in amounts receivable by such Lender for periods
not preceding the day 90 days prior to such demand.
(c) Without limiting the effect of the foregoing provisions of this
Section 2.20, in the event that, by reason of any Regulatory Change, any Lender
either: (i) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities of
such Lender which includes deposits by reference to which the interest rate on
Eurodollar Loans is determined as provided in this Agreement or a category of
extensions of credit or other assets of such Lender which includes Eurodollar
Loans, or (ii) becomes subject to restrictions on the amount of such a category
of liabilities or assets which it may hold, then, if such Lender so elects by
notice to the Borrower (with a copy to the Agent), the obligation of such Lender
to make, and to convert Loans of any other type into, Loans of such type
hereunder shall be suspended until the date such Regulatory Change ceases to be
in effect (and all Loans of such type then outstanding shall be converted into
Base Rate Loans or into Eurodollar Loans of another duration, as the case may
be, in accordance with Sections 2.19 and 2.23).
(d) Determinations by any Lender for purposes of this Section 2.20 of
the effect of any Regulatory Change on its costs of making or maintaining Loans
or on amounts receivable by it in respect of Loans, and of the additional
amounts required to compensate such Lender in respect of any Additional Costs,
shall be set forth in writing in reasonable detail and shall be conclusive,
absent manifest error. Each Lender shall allocate any cost increases required by
this Section 2.20 among its customers in good faith and on an equitable basis.
(e) If any Lender makes demand pursuant to paragraphs (a) or (b) of
this Section 2.20, so long as no Event of Default shall have occurred and be
continuing and the Borrower has obtained from another Lender or another bank or
financial institution acceptable to the Agent a commitment to become a Lender
for all purposes under this Agreement and to assume all obligations of the
Lender to be replaced, the Borrower may require the Lender making such demand to
assign all of its rights and obligations under this Agreement, its Note and the
other Loan Documents to such other Lender or other bank or financial institution
pursuant to the provisions of Subsection 13.11(b); provided that, prior to or
concurrently with such replacement (i) the Borrower has paid to the Lender
making demand all principal, interest, fees and other amounts payable to such
Lender through such date of replacement, (ii) the Borrower has paid to the Agent
the registration and processing fee required to be paid by Section 13.11(d), and
(iii) all of the requirements for such assignment contained in Section 13.11(b),
including the receipt by the Agent of an executed Assignment and Acceptance
Agreement and other supporting documents, have been fulfilled.
Section 2.21. Limitation of Types of Loans. Anything herein to the
contrary notwithstanding, if, on or prior to the determination of an interest
rate for any Eurodollar Loans for any Interest Period therefor, the Agent or the
Required Lenders determine (which determination shall be conclusive absent
manifest error):
(a) by reason of any event affecting the money markets in the United
States of America or the Eurodollar interbank market, quotations of interest
rates for the relevant
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deposits are not being provided in the relevant amounts or for the relevant
maturities for purposes of determining the rate of interest for such Loans under
this Agreement; or
(b) the rates of interest referred to in the definition of "Eurodollar
Base Rate" in Article I hereof upon the basis of which the rate of interest on
any Eurodollar Loans for such period is determined do not accurately reflect the
cost to the Lenders of making or maintaining such Loans for such period;
then the Agent shall give the Borrower and each Lender prompt notice thereof
(and shall thereafter give the Borrower and each Lender prompt notice of the
cessation, if any, of such condition), and so long as such condition remains in
effect, the Lenders shall be under no obligation to make Loans of such type or
to convert Loans of any other type into Loans of such type and the Borrower
shall, on the last day(s) of the then current Interest Period(s) for the
outstanding Loans of the affected type either prepay such Loans in accordance
with Section 2.6 or convert such Loans into Loans of another type in accordance
with Section 2.19.
Section 2.22. Illegality. Notwithstanding any other provision in this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to: (i) honor its obligation to make Eurodollar Loans
hereunder, or (ii) maintain Eurodollar Loans hereunder, then such Lender shall
promptly notify the Borrower thereof (with a copy to the Agent), describing such
illegality in reasonable detail (and shall thereafter promptly notify the
Borrower and the Agent of the cessation, if any, of such illegality), and such
Lender's obligation to make Eurodollar Loans and to convert other types of Loans
into Eurodollar Loans hereunder shall, upon written notice given by such Lender
to the Borrower, be suspended until such time as such Lender may again make and
maintain Eurodollar Loans and such Lender's outstanding Eurodollar Loans shall
be converted into Base Rate Loans in accordance with Sections 2.19 and 2.23.
Section 2.23. Certain Conversions Pursuant to Sections 2.20 and 2.22.
If the Loans of any Lender of a particular type (Loans of such type are
hereinafter referred to as "Affected Loans" and such type is hereinafter
referred to as the "Affected Type") are to be converted pursuant to Section 2.20
or 2.22, such Lender's Affected Loans shall be converted into Base Rate Loans
(the "New Type Loans") on the last day(s) of the then current Interest Period(s)
for the Affected Loans (or, in the case of a conversion required by Subsection
2.20(c) or Section 2.22 on such earlier date as such Lender may specify to the
Borrower with a copy to the Agent) and, until such Lender gives notice as
provided below that the circumstances specified in Section 2.20 or 2.22 which
gave rise to such conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been so
converted, all payments and prepayments of principal which would otherwise be
applied to such Affected Loans shall be applied instead to its New Type Loans;
(b) all Loans which would otherwise be made by such Lender as Loans of
the Affected Type shall be made instead as New Type Loans and all Loans of such
Lender which would otherwise be converted into Loans of the Affected Type shall
be converted instead into (or shall remain as) New Type Loans; and
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(c) if Loans of any of the Lenders other than such Lender which are the
same type as the Affected Type are subsequently converted into Loans of another
type (which type is other than New Type Loans), then such Lender's New Type
Loans shall be automatically converted on the conversion date into Loans of such
other type to the extent necessary so that, after giving effect thereto, all
Loans held by such Lender and the Lenders whose Loans are so converted are held
pro rata (as to principal amounts, types and, to the extent applicable, Interest
Periods) in accordance with their respective Commitments.
Section 2.24. Indemnification. The Borrower shall pay to the Agent for
the account of each Lender, upon the request of such Lender through the Agent,
such amount or amounts as shall compensate such Lender for any loss (including
loss of profit), cost or expense incurred by such Lender (as reasonably
determined by such Lender) as a result of:
(a) any payment or prepayment or conversion of a Eurodollar Loan held
by such Lender on a date other than the last day of an Interest Period for such
Eurodollar Loan; or
(b) any failure by the Borrower to borrow, prepay or convert a
Eurodollar Loan on the date for such borrowing, prepayment or conversion
specified in the relevant notice under Section 2.2;
such compensation to include an amount equal to: (i) any loss or expense
suffered by such Lender during the period from the date of receipt of such early
payment or prepayment or the date of such conversion or failure to borrow,
prepay or convert to the last day of such Interest Period if the rate of
interest obtainable by such Lender upon the redeployment of an amount of funds
equal to such Lender's pro rata share of such payment, prepayment or conversion
or failure to borrow, prepay or convert is less than the rate of interest
applicable to such Eurodollar Loan for such Interest Period, or (ii) any loss or
expense suffered by such Lender in liquidating Eurodollar deposits prior to
maturity which correspond to such Lender's pro rata share of such payment,
prepayment or conversion or failure to borrow, prepay or convert. The
determination by each such Lender or the amount of any such loss or expense,
when set forth in a written notice to the Borrower, containing such Lender's
calculation thereof in reasonable detail, shall be presumed correct, in the
absence of manifest error.
ARTICLE III
LETTERS OF CREDIT
Section 3.1. Letter of Credit Commitment. On the terms and subject to
the conditions contained in this Agreement, the Issuing Bank shall from time to
time from and after the Effective Date until the Maturity Date issue Letters of
Credit for the account of the Borrower.
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Section 3.2. Issuance of Letters of Credit.
(a) The obligation of the Issuing Bank to issue any Letter of Credit
requested by the Borrower is subject to the following conditions (in addition to
conditions specified elsewhere in this Agreement):
(i) The Issuing Bank shall have no obligation to issue any
Letter of Credit if, after giving effect to such issuance, (A) the
Revolving Credit Outstandings would exceed the Total Revolving Credit
Commitment or (B) the Letter of Credit Exposure would exceed
$5,000,000.
(ii) The form and terms of each Letter of Credit and any
related documentation must be reasonably acceptable to the Issuing
Bank.
(iii) Each Letter of Credit by its terms must provide for
payment of drawings thereunder in Dollars and must expire on or prior
to the earlier to occur of (A) ten days prior to the Maturity Date and
(B) the first anniversary of the date of its issuance.
(iv) Each Letter of Credit may only be issued in connection
with a Permitted Acquisition.
(v) Each Letter of Credit shall contain a provision permitting
the Issuing Bank to terminate such Letter of Credit upon 30 days' prior
written notice to the beneficiary thereof and authorizing such
beneficiary to draw up to the full undrawn amount of such Letter of
Credit during such 30-day period. The Issuing Bank agrees that it will
not give any such termination notice except in compliance with Section
11.4.
In determining compliance with clause (i) above, the Issuing Bank shall be
entitled to rely on information received by it from the Agent or the Borrower.
(b) Whenever the Borrower desires to have a Letter of Credit issued,
the Borrower will furnish to the Agent and the Issuing Bank a written
application therefor (each, a "Letter of Credit Application") which shall (i) be
received by the Agent and the Issuing Bank not less than three (3) Business Days
and not more than ten (10) Business Days prior to the Issue Date of such Letter
of Credit and (ii) specify (A) the Issue Date of such Letter of Credit (which
must be a Business Day), (B) the expiration date of such Letter of Credit, (C)
the name and address of the beneficiary of the Letter of Credit, (D) the amount
of such Letter of Credit, and (E) the purpose and proposed form of such Letter
of Credit. The Agent shall give each Lender prompt notice of its receipt of each
such Letter of Credit Application and the Issuing Bank shall give the Agent and
each Lender prompt notice of the issuance and amount of each Letter of Credit
and the expiration date of each Letter of Credit.
Section 3.3. Participation by Lenders.
(a) By the issuance of a Letter of Credit and without any further
action on the part of the Issuing Bank or the other Lenders in respect thereof,
the Issuing Bank hereby
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grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Revolving Credit Lender's Revolving Credit Commitment Percentage of the
face amount of such Letter of Credit, effective upon the issuance of such Letter
of Credit; provided, however, that no Revolving Credit Lender shall be required
to acquire a participation in any Letter of Credit that would result in its
Revolving Credit Commitment Percentage of all Revolving Credit Outstandings to
be greater than its Revolving Credit Commitment at the time of issuance of such
Letter of Credit. In consideration and in furtherance of the foregoing, each
Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to
the Agent, for the account of the Issuing Bank, in accordance with Section 3.4
below, such Revolving Credit Lender's Revolving Credit Commitment Percentage of
each Letter of Credit Disbursement.
(b) Each Revolving Credit Lender acknowledges and agrees that its
obligation to acquire participations pursuant to paragraph (a) above in respect
of Letters of Credit is absolute and unconditional and shall not be affected by
any circumstances whatsoever, including the occurrence and continuance of an
Event of Default or Default hereunder, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.
Section 3.4. Letter of Credit Disbursements.
(a) If the Agent has not received from the Borrower the payment
permitted pursuant to paragraph (b) of this Section 3.4 by 11:00 a.m., Boston
time, on the date on which the Issuing Bank has notified the Borrower that
payment of a draft presented under any Letter of Credit will be made, as
provided in such paragraph (b), the Agent shall promptly notify the Issuing Bank
and each other Lender of the Letter of Credit Disbursement and, in the case of
each Revolving Credit Lender, its Revolving Credit Commitment Percentage of such
Letter of Credit Disbursement. Each Revolving Credit Lender shall promptly pay
to the Agent (or, if the Issuing Bank shall elect to defer reimbursement from
the Revolving Credit Lenders hereunder, at such later time as the Issuing Bank
shall specify by notice to the Agent and the Revolving Credit Lenders), such
Revolving Credit Lender's Revolving Credit Commitment Percentage of such Letter
of Credit Disbursement, which the Agent shall promptly pay to the Issuing Bank.
The Agent will promptly remit to each Revolving Credit Lender its share of any
amounts subsequently received by the Agent or the Issuing Bank from the Borrower
in respect of such Letter of Credit Disbursement; provided that amounts so
received for the account of any Revolving Credit Lender prior to payment by such
Lender of amounts required to be paid by it hereunder in respect of any
Revolving Credit Disbursement shall be remitted to the Issuing Bank.
(b) If the Issuing Bank shall receive any draft presented under any
Letter of Credit, the Issuing Bank shall give notice thereof as provided in
paragraph (c) below. If the Issuing Bank shall pay any draft presented under a
Letter of Credit, the Borrower may (but shall not be required to) pay to the
Agent, for the account of the Issuing Bank, an amount equal to the amount of
such draft before noon, Boston time, on the Business Day on which the Issuing
Bank shall have notified the Borrower that payment of such draft will be made.
The Agent will promptly pay any such amounts received by it to the Issuing Bank.
If the Borrower shall not elect to make such payment, the Borrower shall pay to
the Agent, on
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behalf of the Issuing Bank, an amount equal to the Letter of Credit Disbursement
made by the Issuing Bank, together with interest thereon at the rate then
applicable to Base Rate Loans pursuant to Section 2.7 from and including the
date of such Letter of Credit Disbursement to but excluding the date of payment,
on or prior to the date one Business Day following the date of such Letter of
Credit Disbursement.
(c) The Issuing Bank shall, promptly following its receipt thereof,
examine all documents purporting to represent a demand for payment under a
Letter of Credit to ascertain that the same appear on their face to be in
substantial conformity with the terms and conditions of such Letter of Credit.
The Issuing Bank shall as promptly as reasonably practicable give oral
notification, confirmed in writing, to the Agent and the Borrower of such demand
for payment and the determination by the Issuing Bank as to whether such demand
for payment was in accordance with the terms and conditions of such Letter of
Credit and whether the Issuing Bank has made or will make a Letter of Credit
Disbursement thereunder, provided that the failure to give such notice shall not
relieve the Borrower of its obligation to reimburse such Letter of Credit
Disbursement, and the Agent shall promptly give each Revolving Credit Lender
notice thereof.
Section 3.5. Obligation to Repay Letter of Credit Disbursements, etc.
The Borrower assumes all risks in connection with the Letters of Credit and the
Borrower's obligation to repay Letter of Credit Disbursements shall be absolute,
unconditional and irrevocable under any and all circumstances and irrespective
of:
(i) any lack of validity or enforceability of any Letter of
Credit;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower or any other person may at any time have
against the beneficiary under any Letter of Credit, the Agent or the
Issuing Bank (other than the defense of payment in accordance with the
terms of this Agreement or a defense based on the gross negligence or
willful misconduct of the Issuing Bank) or any other Person in
connection with this Agreement or any other agreement or transaction;
(iii) any draft or other document presented under a 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; and
(iv) any other circumstance or event whatsoever, whether or
not similar to any of the foregoing.
It is understood that in making any payment under a Letter of Credit
(A) the Issuing Bank's exclusive reliance as to any and all matters set forth
therein, including reliance on the amount of any draft presented under such
Letter of Credit, whether or not the amount due to the beneficiary equals the
amount of such draft and whether or not any document presented pursuant to such
Letter of Credit proves to be insufficient in any respect, if such document on
its face appears to be in order, and whether or not any such Letter of Credit
proves to be forged or invalid or any statement therein proves to be inaccurate
or untrue in any respect whatsoever and (B) any noncompliance in any immaterial
respect of the documents presented under a Letter of Credit with the terms
thereof, shall, in each case, not be deemed willful misconduct or gross
negligence of the
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Issuing Bank. It is further understood that in making any payment under a Letter
of Credit, the Issuing Bank's payment of any draft presented under such Letter
of Credit, if such document on its face is clearly not in order, shall be deemed
willful misconduct or gross negligence of the Issuing Bank.
The Borrower absolutely and unconditionally agrees to hold the Issuing
Bank harmless from, and to indemnify the Issuing Bank immediately upon demand by
the Issuing Bank at any time and as often as the occasion therefor may require
against, any and all claims, demands, suits, actions, damages, losses, costs,
expenses and other liabilities whatsoever which shall at any time or times be
incurred or sustained by the Issuing Bank on account of, or in relation to, or
in any way in connection with, the Letters of Credit except that the Borrower
shall not be liable to the Lenders for any claims, demands, suits, actions,
damages, losses, costs, expenses and other liabilities resulting from the gross
negligence or willful misconduct of the Issuing Bank.
Section 3.6 Letter of Credit Fees. The Borrower agrees to pay to the
Agent (a) for the account of the Revolving Credit Lenders, a fee in an amount
equal to the product of (i) the average undrawn face amount of each Letter of
Credit outstanding during all or any part of the applicable calendar quarter
multiplied by (ii) an annual rate equal to the Applicable Margin for Eurodollar
Loans during such calendar quarter and (b) for the account of the Issuing Bank,
a fee (the "Issuing Bank Fee") in an amount equal to the product of (i) the
average undrawn face amount of each Letter of Credit outstanding during all or
any part of the applicable calendar quarter multiplied by (ii) an annual rate
equal to 0.125% (the fees described in clause (a) of this Section 3.6 and the
Issuing Bank Fees shall be referred to herein collectively as the "Letter of
Credit Fees"). Letter of Credit Fees shall be payable (i) quarterly in arrears
on each of the Quarterly Dates and (ii) on the earlier of the Maturity Date and
the date the Revolving Credit Commitments terminate.
Section 3.7 Letter of Credit Applications. To the extent that any
provision of any Letter of Credit Application is inconsistent with the
provisions of this Article III, the provisions of this Article III shall apply.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Principal Companies hereby jointly and severally represent and
warrant to the Lenders, the Agent and the Issuing Bank as follows:
Section 4.1. Organization, Etc. Each of the Principal Companies (a) is
duly organized, validly existing and in good standing under the laws of its
state of organization or incorporation, (b) has all requisite corporate (or the
equivalent company) power and authority, and all material licenses, permits,
franchises, consents and approvals, required to own its Assets and carry on its
business as now conducted and as proposed to be conducted, (c) is duly qualified
to do business and is in good standing as a foreign corporation (or similar
business entity) in each jurisdiction where the nature of its properties or its
business requires such qualification unless the failure to so qualify could not
reasonably be expected to have a Material Adverse Effect. Schedule 4.1
accurately and
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completely lists, as to (i) the Borrower as of the date hereof: (A) its state of
incorporation and (B) the classes and number of authorized and outstanding
shares of its Capital Stock, and (ii) each of the other Principal Companies: (A)
the state of incorporation of each such corporation or the state of formation
for each such limited liability company and (B) the classes and number of
authorized and outstanding shares or interests of Capital Stock of each such
corporation or limited liability company, and the owners of such outstanding
shares of Capital Stock. All the issued and outstanding shares or interests of
Capital Stock of each Restricted Subsidiary have been duly and validly issued
and are fully paid and non-assessable. All the issued and outstanding shares or
interests of Capital Stock of each Restricted Subsidiary are owned by the
Persons identified on Schedule 4.1, free and clear of any Liens or restrictions
on transfer, except for the pledge of such Capital Stock pursuant to the Stock
Pledge Agreements. There are no outstanding warrants, options, contracts or
commitments of any kind entitling any Person to purchase or otherwise acquire
any Capital Stock of any Restricted Subsidiary nor are there outstanding any
securities which are convertible into or exchangeable for any Capital Stock of
any Restricted Subsidiary. Except for the obligations of the Borrower, Saga
Broadcast and Lakefront under the Stock Pledge Agreements, there are no
outstanding commitments, options, warrants, calls or other agreements (whether
written or oral) binding on any Principal Company to issue, sell, grant,
transfer, assign, mortgage, pledge or otherwise dispose of any Capital Stock of
any Restricted Subsidiary. No shares or interests of Capital Stock of any
Restricted Subsidiary are subject to (A) any restrictions on transfer pursuant
to any Governing Documents of such Restricted Subsidiary, or (B) any
shareholders agreements, voting trusts, voting agreements, trust agreements,
trust deeds, irrevocable proxies or any other similar agreements or instruments
(whether written or oral). The Principal Companies shall promptly notify the
Agent in writing of any changes which would make any of the representations set
forth in this Section 4.1 untrue, inaccurate or incomplete.
Section 4.2. Power; Authority; Consents; No Conflicts. Each of the
Principal Companies has the power and corporate (or the equivalent company)
authority to execute and deliver the Loan Documents and to perform the Loan
Documents and the Ancillary Documents to which it is a party. The Borrower has
the power to borrow and request Letters of Credit hereunder and has taken all
necessary action to authorize the borrowings and requests for Letters of Credit
hereunder on the terms and conditions of this Agreement. Each of the Principal
Companies has taken all necessary action, corporate (or the equivalent company)
or otherwise, to authorize the execution and delivery of the Loan Documents and
the performance of the Loan Documents and the Ancillary Documents to which it is
a party. The execution and delivery by each Principal Company of each of the
Loan Documents and the performance of each of the Loan Documents and each of the
Ancillary Documents to which it is or is to become a party do not and will not
(i) contravene or result in a breach of any Requirement of Law, (ii) conflict
with or result in a breach of or (with the giving of notice or lapse of time, or
both) a default under any Contractual Obligation of any Principal Company, or
(iii) result in or require the creation of any Lien on any Assets of any
Principal Company, except for Liens created pursuant to the Security Documents.
No consent or approval of any Person, no waiver of any Lien or right of
distraint or other similar right and no consent, license, certificate of need,
approval, authorization or declaration of any Governmental Authority, including
the FCC, is or will be required in connection with the Transaction, the
execution and delivery by the Principal Companies of the Loan Documents or the
performance of the Loan Documents and the Ancillary Documents, or the validity,
enforcement or priority of the Loan Documents or any
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Xxxx created and granted thereunder, except as set forth on Schedule 4.2, each
of which either has been duly and validly obtained on or prior to the date
hereof and is now in full force and effect.
Section 4.3. Due Execution, Validity and Enforceability. Each
Transaction Document has been duly executed and delivered by each Principal
Company which is a party thereto. Upon execution and delivery of any Loan
Document by any Principal Company after the date hereof, such Loan Document
shall have been duly executed and delivered by each Principal Company which is a
party thereto. Each of the Loan Documents and the Ancillary Documents
constitutes the legal, valid and binding obligation of such Principal Company,
enforceable in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization or other similar
laws affecting generally the enforcement of creditors' rights or by general
principles of public policy and except to the extent that the availability of
the remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding therefor may be brought.
Section 4.4. Priority of Liens; Condition of Assets.
(a) All the Assets owned by each Principal Company are owned by it free
and clear of any Lien, except Liens permitted by Section 9.2. Each of the
Principal Companies has granted to the Collateral Trustee a perfected
first-priority security interest (to the maximum extent permitted by applicable
law and subject only to Liens permitted by Section 9.2) in all of its Assets,
other than those Assets which are (i) described on Schedule 4.4(a) or (ii)
excluded by the express terms of the Security Documents (any such Assets which
are not described in clauses (i) and/or (ii) herein are sometimes referred to
herein as the "Perfected Collateral"). The Liens which have been created and
granted by the Security Documents, to the extent such Liens may be perfected by
filing a financing statement under the Uniform Commercial Code of the applicable
jurisdiction, or by recording an assignment or other appropriate documents with
the U.S. Patent and Trademark Office or the United States Copyright Office, or
by taking possession of securities or instruments, or by recording a mortgage or
deed of trust in the real estate records of the applicable jurisdiction,
constitute valid perfected first-priority Liens on the Perfected Collateral,
subject to no prior or equal Lien except as permitted by Section 9.2. All Assets
of each Principal Company which are reasonably necessary for the operation of
its business are in good working condition, ordinary wear and tear excepted, and
are able to serve the function for which they are currently being used. Each
Principal Company enjoys peaceful and undisturbed possession under all material
leases of real and personal property to which it is a party, and all such
material leases are valid and subsisting and in full force and effect.
(b) The Principal Companies are not engaged in any business or
activities other than (i) holding shares or interests of Capital Stock of other
Principal Companies, (ii) acquiring, owning, operating and disposing of Stations
and engaging in Permitted LMA Transactions, (iii) operating television and radio
networks and (iv) making other Investments permitted by Section 9.4.
(c) The only material instrument held by any Principal Company as of
the Effective Date is the Christian Note.
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Section 4.5. Judgments, Actions, Proceedings. There are no outstanding
judgments, actions or proceedings, including any Environmental Proceeding,
pending before any Governmental Authority (including the FCC) with respect to
or, to the best of the Principal Companies' knowledge, threatened against or
affecting any Principal Company or any Assets of any Principal Company
(including any Assets to be acquired and any obligations to be assumed in any
Permitted Acquisition) which, if adversely determined, could (either
individually or in the aggregate) reasonably be expected to have a Material
Adverse Effect.
Section 4.6. No Defaults; Compliance with Laws. No Default or Event of
Default is continuing. No Principal Company is in default under or has failed to
comply with any Requirement of Law or any Contractual Obligation to which it or
any of its Assets are bound, except for such defaults or failures which could
not (either individually or in the aggregate) reasonably be expected to have a
Material Adverse Effect. Each Principal Company has complied and is in
compliance in all respects with each of its Governing Documents and in all
material respects with the Communications Act. Immediately prior to the
refinancing of the obligations under the Existing Credit Agreement with proceeds
of the initial Loans made hereunder, no Default or Event of Default (as such
terms are defined under the Existing Credit Agreement) was continuing under the
Existing Credit Agreement.
Section 4.7. Burdensome Documents. Except as set forth on Schedule 4.7,
no Principal Company is a party to or bound by, and no Assets of any Principal
Company are affected by, any Requirement of Law or any Contractual Obligation
which could have a Material Adverse Effect.
Section 4.8. Governing Documents. The Agent has been furnished with
true and complete copies of all Governing Documents of each Principal Company.
Section 4.9. Financial Information.
(a) Financial Statements. All balance sheets, all statements of
operations and of cash flows, and all other financial statements which have been
furnished by or on behalf of any of the Principal Companies to the Agent or any
Lender for the purposes of or in connection with this Agreement or any
transaction contemplated hereby, including the audited consolidated and
consolidating balance sheets of the Borrower and its Subsidiaries at December
31, 2000 and the related audited consolidated and consolidating statements of
operations and cash flows for the fiscal year of the Borrower then ended,
certified, in the case of the consolidated statements, by Ernst & Young
(collectively, together with the notes thereto, the "Historical Financials"),
have been prepared in accordance with GAAP consistently applied throughout the
periods involved (except as disclosed therein) and present fairly the financial
position and the results of operations of the Borrower and its Subsidiaries and
of the Borrower and its Restricted Subsidiaries as at the date thereof and for
the periods then ended. None of the Principal Companies has any material
contingent liability or liabilities for taxes, long-term leases or unusual
forward or long-term commitments as of the date hereof which are not reflected
in the Historical Financials or in the notes thereto.
(b) Projections. The Projections have been prepared on the basis of the
assumptions accompanying them and reflect as of the date hereof the Borrower's
good faith
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projections, after reasonable analysis, of the matters set forth therein, based
on such assumptions.
Section 4.10. No Material Changes. Since the Balance Sheet Date, there
has been no change, and no development or event involving a prospective change,
in the Assets, business, operations, prospects or condition, financial or
otherwise, of any Principal Company, which has had or could reasonably be
expected to have a Material Adverse Effect. Since the Balance Sheet Date, the
Borrower has not made any Restricted Payment.
Section 4.11. Taxes. Each Principal Company has filed all returns for
Taxes required to be filed by it and has not failed to pay any Taxes, or
interest or penalties relating thereto, on or before the due dates thereof.
Except as set forth on Schedule 4.11: (i) as of the date hereof, there are no
material liabilities for Taxes of any Principal Company due or to become due and
(ii) there are no material claims pending or, to the knowledge of the Borrower,
proposed or threatened against any Principal Company for past Taxes, except
those, if any, as to which proper reserves are reflected in the Financial
Statements.
Section 4.12. Intangible Assets. Each Principal Company possesses all
patents, Trademarks, Copyrights and rights with respect to the foregoing
reasonably necessary to conduct its business as now conducted and as proposed to
be conducted, without any known conflict with the patents, Trademarks,
Copyrights and rights with respect to the foregoing of any other Person.
Section 4.13. Licenses and Approvals.
(a) Each Principal Company has all requisite power and authority and
necessary licenses and permits, including all FCC Licenses, to own and operate
the Assets (including the Stations) owned or operated by it and to carry on its
businesses as now conducted.
(b) Set forth in Schedule 4.13 is a complete list of all FCC Licenses
of the Principal Companies as of the date hereof. Each FCC License which is
necessary to the operation of the business of any Principal Company is validly
issued and in full force and effect or to the extent described in Schedule 4.13,
special temporary authority has been sought from the FCC to operate the
facilities for which such FCC authority is required. Each Principal Company has
fulfilled and performed all of its obligations in all material respects with
respect to each FCC License which is necessary to the operation of the business
of any Principal Company. No events or occurrences have occurred which
individually or in the aggregate: (i) have resulted in the revocation or
termination of any such FCC License, or (ii) materially and adversely affect or
could reasonably be expected to materially adversely affect any of the rights of
any Principal Company thereunder. Except as set forth on Schedule 4.13, as of
the date hereof, no license or franchise, other than the FCC Licenses described
in Schedule 4.13, is necessary for the operation of the business (including the
Stations) of the Principal Companies as now conducted.
(c) No Principal Company is a party to nor does any Principal Company
have knowledge of any investigation, notice of violation, order or complaint
issued by or before any Governmental Authority, including the FCC, or of any
other proceedings (other than proceedings relating to the communications
industry generally) which could (individually or in the aggregate) reasonably be
expected to have a Material Adverse Effect. No Principal
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Company has reason to believe (other than in connection with there being no
legal assurance thereof) that any of the FCC Licenses necessary to the operation
of the business of any Principal Company will not be renewed in the ordinary
course. Each Principal Company has filed all material reports, applications,
documents, instruments and information required to be filed by it pursuant to
applicable rules and regulations or requests of every regulatory body having
jurisdiction over any of its FCC Licenses or the activities of the Principal
Companies with respect thereto.
Section 4.14. Environmental Compliance. Each of the Borrower Affiliated
Companies has obtained all environmental, health and safety permits, licenses
and other authorizations required under all applicable Environmental Laws to
carry on its business as now being or as proposed to be conducted, except to the
extent failure to have any such permit, license or authorization would not
(either individually or in the aggregate) reasonably be expected to have a
Material Adverse Effect. Each of such permits, licenses and authorizations is in
full force and effect and each of the Borrower Affiliated Companies is in
compliance with the terms and conditions thereof, and is also in compliance with
all other limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in any applicable
Environmental Law or in any regulation, code, plan, order, decree, judgment,
injunction, notice or demand letter issued, entered, promulgated or approved
thereunder, except to the extent failure to comply therewith would not (either
individually or in the aggregate) reasonably be expected to have a Material
Adverse Effect. On the date hereof, except as set forth in Schedule 4.14 hereto,
there are no underground storage tanks or surface impoundments for Hazardous
Substances, active or abandoned, at any site or facility owned, operated or
leased by the Borrower.
Section 4.15. Employee Benefit Plans.
(a) In General:
(i) Each Employee Benefit Plan of each of the Principal
Companies has been maintained and operated in compliance in all
material respects with the applicable provisions of ERISA and the Code,
including the provisions thereunder respecting prohibited transactions.
Each Principal Company has heretofore delivered to the Agent the most
recently completed annual report, Form 5500, with all required
attachments, and actuarial statement required to be submitted under
Section 103(d) of ERISA, with respect to each Guaranteed Pension Plan.
(ii) Set forth on Schedule 4.15, as of the date hereof, is a
list of each material pension, retirement or similar plan or obligation
of the Principal Companies.
(b) Retiree Welfare Obligations. The Principal Companies are not
obliged to provide health or life benefits to employees beyond their termination
of employment (other than as mandated by law) under any Employee Benefit Plan
which is a welfare plan within the meaning of Section 3(1) of ERISA to an extent
that would impair their ability to make timely the payments provided for under
this Agreement.
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(c) Guaranteed Pension Plans. Each contribution required to be made to
a Guaranteed Pension Plan, whether required to be made to avoid the incurrence
of an accumulated funding deficiency, the notice or lien provisions of
Section 302(f) of ERISA, or otherwise, has been timely made. No waiver of an
accumulated funding deficiency or extension of amortization periods has been
received with respect to any Guaranteed Pension Plan. No liability to the PBGC
(other than required insurance premiums, all of which have been paid on a timely
basis) has been incurred by any of the Principal Companies or any ERISA
Affiliate with respect to any Guaranteed Pension Plan, and there has not been
any ERISA Reportable Event (other than an event as to which the requirement of
30 days notice has been waived), or any other event or condition, which presents
a material risk of termination of any Guaranteed Pension Plan by the PBGC. Based
on the latest valuation of each Guaranteed Pension Plan and on the actuarial
methods and assumptions employed for that valuation, the aggregate accrued
benefits of all such Guaranteed Pension Plans did not exceed the aggregate value
of the assets of all such Plans by more than $100,000 Dollars, disregarding for
this purpose the accrued benefits and assets of any Guaranteed Pension Plan with
assets in excess of accrued benefits.
(d) Multiemployer Plans. None of the Principal Companies or any ERISA
Affiliate has incurred any unpaid material liability (including secondary
liability) to any Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan under Section 4201 of ERISA or as a
result of a sale of assets described in Section 4204 of ERISA. None of the
Principal Companies or any ERISA Affiliate has been notified that any
Multiemployer Plan is in reorganization or insolvent under and within the
meaning of Section 4241 or Section 4245 of ERISA or that any Multiemployer Plan
intends to terminate or has been terminated under Section 4041A of ERISA.
Section 4.16. Labor Disputes; Collective Bargaining Agreements;
Employee Grievances. As of the date hereof, except as set forth on Schedule
4.16: (a) there are no collective bargaining agreements or other labor contracts
covering any Principal Company or any Station; (b) no such collective bargaining
agreement or other labor contract will expire prior to the Maturity Date; (c)
there is no pending or threatened Material Labor Dispute against or affecting
any Principal Company or any Station or its representative employees; and (d)
each Principal Company has complied with and is in compliance with the
provisions of the Fair Labor Standards Act.
Section 4.17. Insurance. Each Principal Company has obtained all
property and liability insurance with reputable insurance companies satisfactory
to the Agent insuring against such risks and in such amounts as required by
Section 8.5. Set forth on Schedule 4.17 is a true, correct and complete list, as
of the Effective Date, of all insurance of any nature maintained by each
Principal Company (including all material fire, theft, casualty, general
liability, workers' compensation, business interruption, automobile and other
insurance policies insuring the Assets or business operations of each Principal
Company), specifying the type of coverage, the amount of coverage, the premium,
the insurer and the expiration date of each such policy (collectively, the
"Insurance Policies"). True, correct and complete copies of all of the Insurance
Policies have been made available by the Borrower to the Agent. All the
Insurance Policies are in full force and effect. All premiums (if any) due on
the Insurance Policies or renewals thereof have been paid and there is no
default under any of the Insurance Policies. None of the Principal Companies
have received any notice or other communication from any issuer of the Insurance
Policies canceling or materially
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amending any of the Insurance Policies, any deductibles or retained amounts
thereunder, or the annual or other premiums payable thereunder, and no such
cancellation or material amendment is threatened.
Section 4.18. Absence of Certain Restrictions. As of the date hereof,
no Principal Company is bound by any Contractual Obligation which, directly or
indirectly, prohibits or limits, or has the effect of prohibiting or limiting,
its incurrence of Indebtedness, its granting of Liens or its payment of
Distributions.
Section 4.19. Ancillary Documents. The Borrower has furnished or caused
to be furnished to the Agent true and complete copies of each Ancillary
Document. No default by any Principal Company is continuing under any Ancillary
Document which, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect. The Principal Companies are not aware of any
default by any other Person under any Ancillary Document to which such Person
and any Principal Company are a party which, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
Section 4.20. Solvency.
(a) Fair Salable Value of Assets. The fair salable value of
the Assets of the Borrower exceeds the amount that will be required to be paid
on or in respect of the existing debts and other liabilities (including
contingent liabilities) of the Borrower as they mature.
(b) Capital Not Unreasonably Small. The Assets of the Borrower
do not constitute unreasonably small capital for the Borrower to carry out its
business as now conducted and as proposed to be conducted including the capital
needs of the Borrower, taking into account the particular capital requirements
of the business conducted by the Borrower, and the projected capital
requirements and capital availability thereof.
(c) Incurrence of Debts. The Borrower does not intend to and
will not incur debts beyond its ability to pay such debts as they mature taking
into account the timing and amounts of cash to be received by the Borrower and
of amounts to be payable on or in respect of obligations of the Borrower. The
cash flow of the Borrower, after taking into account all anticipated uses of the
cash of the Borrower, will at all times be sufficient to pay all such amounts on
or in respect of debt of the Borrower when such amounts are required to be paid.
Section 4.21. Application of Certain Laws and Regulations. No Principal
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.
No Principal 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", as such terms are defined in the Public Utility
Holding Company Act of 1935, as amended. No Principal Company is a Person
prohibited from acquiring or holding a broadcasting license by the
Communications Act. No Principal Company is subject to any Requirement of Law
which regulates the incurring of Indebtedness for Borrowed Money.
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Section 4.22. No Material Real Property; No Material Intellectual
Property. As of the date hereof, no Principal Company owns (i) Material Real
Property or (ii) has any Material Intellectual Property.
Section 4.23. Full Disclosure. To the best knowledge of the Principal
Companies, none of the Transaction Documents, the Loan Documents, the Historical
Financials, or any other agreement, instrument, document, certificate, statement
or letter furnished to the Agent or any Lender by or on behalf of any Principal
Company in connection with any of the transactions contemplated by this
Agreement, contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained therein, taken
as a whole together with all Public Filings made by the Principal Companies, not
misleading in light of the circumstances in which they are made. Other than
publicly known matters affecting the communications industry generally and
publicly known matters affecting the local economies of the markets in which the
Principal Companies operate, there is no fact known to the Principal Companies
which has caused or is reasonably likely to cause a Material Adverse Effect,
which fact is not set forth in the Transaction Documents, the Loan Documents,
the Historical Financial Statements, the Public Filings or any other
certificate, opinion or other statement furnished to each Lender.
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
Section 5.1. Conditions to Initial Credit Extensions. The fulfillment
(to the reasonable satisfaction of the Agent) of the following conditions
precedent shall be required before the Lenders have any obligation to make the
initial Credit Extensions:
(a) Transaction Documents.
(i) Each of the Transaction Documents shall have been duly and
properly authorized, executed and delivered by the respective party or
parties thereto and each of the Transaction Documents shall be in full
force and effect as of the effectiveness of this Agreement.
(ii) An executed original of each of the Revolving Credit
Notes, the Term Loan Notes and the Acquisition Loan Notes shall have
been delivered to the Agent. Executed originals or (as the case may be)
executed counterparts of each of the other Transaction Documents shall
have been delivered to the Agent. Each of the Transaction Documents
(other than this Agreement) executed and delivered to the Agent shall
be substantially in the form of the appropriate Exhibit hereto or in
form and substance satisfactory to the Agent.
(b) Organization Documents. The Agent shall have received:
(i) a copy of the certificate of incorporation or certificate
of formation (or similar Governing Documents) of each Principal
Company, certified as of a recent
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date by the Secretary of State of the state of incorporation or
formation of each Principal Company;
(ii) a certificate stating that each Principal Company is a
corporation or limited liability company duly organized or formed,
validly existing and in good standing under the laws of its state of
incorporation or formation, signed as of a recent date by the Secretary
of State of such state;
(iii) a certificate stating that (A) each Principal Company is
qualified to do business under the laws of each state wherein the
character of the properties owned or held under lease by any Principal
Company or the nature of the business conducted by it would require
that such Principal Company qualify as a foreign corporation or foreign
limited liability company and (B) such Principal Company is in good
standing under the laws of such state, signed as of a recent date by
the Secretary of State of such state; and
(iv) a certificate of a duly authorized officer of each
Principal Company dated the Effective Date and certifying (A) that
attached thereto is a true and complete copy of the by-laws or limited
liability company agreement (or similar Governing Documents) of such
Principal Company as in effect on the Effective Date, (B) that the
certificate of incorporation or certificate of formation (or similar
Governing Documents) of such Principal Company has not been amended
since the last amendment referred to in the certificates delivered
pursuant to clause (i) above, (C) that attached thereto are true and
correct copies of the records of all corporate (or the company
equivalent) action taken by such Principal Company to authorize its
execution and delivery of the Transaction Documents and its performance
of the Loan Documents (and the borrowings and other transactions
contemplated thereby), and that such corporate (or the company
equivalent) actions have not been modified, rescinded or amended and
are in full force and effect on the Effective Date, and (D) as to the
incumbency, the name and a specimen signature of each individual who
shall be authorized: (1) to sign, in the name and on behalf of such
Principal Company, the Loan Documents to which such Principal Company
is or is to be a party; (2) to give notices and to take other action on
its behalf under this Agreement; and (3) to make (in the case of the
Borrower) applications for Loans and Letters of Credit.
(c) Representations and Warranties. Each of the representations and
warranties made by or on behalf of any of the Principal Companies in any of the
Transaction Documents shall have been true and correct in all material respects
when made, and shall continue to be true and correct in all material respects as
of the Effective Date.
(d) Lien Searches. The Agent shall have received written advice, in
form and substance reasonably satisfactory to the Agent, relating to such Lien
and judgment searches as the Agent may require and the results of such searches
shall be satisfactory to the Agent.
(e) Filings, Registration and Recordings. Any documents (including
UCC-1 financing statements or UCC-3 termination statements) required by the
Agent or the
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Agent's Special Counsel to be recorded or filed in order to (i) release any
Liens on any Assets of the Principal Companies (other than Liens permitted by
Section 9.2) and (ii) create, in favor of the Collateral Trustee, a perfected
first-priority Lien on the Perfected Collateral of the Principal Companies with
respect to which a Lien may be perfected by filing a financing statement under
the Uniform Commercial Code of the applicable jurisdiction, or by recording an
assignment or other document with the United States Copyright Office or the U.S.
Patent and Trademark Office, or by recording a mortgage or deed of trust in the
real estate records of the applicable jurisdiction, shall have been properly
recorded or filed in each office in each jurisdiction required. The Agent shall
have received acknowledgment copies of all such recordings and filings (or in
lieu thereof, the Agent shall have received other evidence satisfactory to it
that all such recordings and filings have been made); and the Agent shall have
received evidence that all necessary recording and filing fees and all taxes or
other expenses related to such filings have been paid in full. Any other action,
including the taking of possession of securities or instruments by the
Collateral Trustee, required in order to create in favor of the Collateral
Trustee, for the ratable benefit of the Agent and the Lenders, a perfected
first-priority Lien on such Assets to the extent such Liens may be perfected by
filing a financing statement under the Uniform Commercial Code of the applicable
jurisdiction, or by recording an assignment or other document with the United
States Copyright Office or the U.S. Patent and Trademark Office, or by recording
a mortgage or deed of trust in the real estate records of the applicable
jurisdiction, or by taking possession of the securities or instruments, shall
have been properly taken in order to create such a perfected first-priority
Lien, subject only to Liens permitted by Section 9.2.
(f) Insurance. The Agent shall have received evidence, in form and
substance satisfactory to the Agent, that (i) each Principal Company has
obtained the policies of insurance required by the Loan Documents which
insurance shall be in form and substance satisfactory to the Agent, and (ii) the
Agent shall have been named additional insured with respect to all liability
insurance policies to the extent requested by the Agent, and the Collateral
Trustee shall have been named loss payee with respect to all casualty and
business interruption insurance policies to the extent requested by the
Collateral Trustee and (iii) all other requirements of any Loan Document with
respect to insurance shall have been fulfilled.
(g) Fees. The Borrower shall have paid to the Agent all fees required
to be paid to the Agent on the Effective Date pursuant to the Fee Letter.
(h) Legal Opinions. The Agent shall have received a written legal
opinion, with a counterpart for each Lender, addressed to the Agent and the
Lenders, dated the Effective Date, from (i) Xxxxxxx & Xxxxxx, LLP general
counsel to the Principal Companies, and such opinion shall be in form and
substance satisfactory to the Agent, and (ii) Xxxxxxxxx & Belendiuk, P.C.,
special FCC counsel to the Principal Companies, and such opinion shall be in
form and substance satisfactory to the Agent.
(i) Payment of Costs and Expenses. The Borrower shall have reimbursed
the Agent for all reasonable out-of-pocket expenses (including all reasonable
fees and disbursements of the Agent's Special Counsel) incurred by the Agent
through the Effective Date in connection with structuring and syndicating the
Facilities and preparation, review, negotiation, execution and delivery of the
Transaction Documents.
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(j) Due Diligence; Delivery of Financial Statements. The Agent shall
have completed and be satisfied with the results of all aspects of its due
diligence, including, receipt from the Borrower of the Historical Financials and
the Projections.
(k) Real Estate Appraisals not Required. The Agent shall be satisfied
that no real estate appraisals are required or necessary as to the market value
of any real property of the Principal Companies subject to a Mortgage under 12
U.S.C. Section 93a and title XI of the Financial Institutions, Reform, Recovery
and Enforcement Act of 1989 and the corresponding regulations under 12 C.F.R.
34.41 et. seq. (1990).
(l) Delivery of Consents. The Agent shall have received copies of all
consents referred to on Schedule 4.2, including consents of the FCC, if any,
required in connection with the transactions contemplated by the Transaction.
(m) Effective Date Certificate. The Agent shall have received the duly
executed and completed Effective Date Certificate substantially in the form
attached hereto as Exhibit C.
(n) Repayment under Existing Credit Agreement. The Borrower shall have
repaid all Obligations (as such term is defined in the Existing Credit
Agreement) under the Existing Credit Agreement and all such Obligations (as
defined therein) and all Commitments (as defined therein) shall have terminated.
(o) Minimum EBITDA. The Agent shall have received satisfactory evidence
that, as of the date hereof, the Borrower shall have had pro forma Consolidated
EBITDA (assuming the completion of the KMIT-FM and KGGK-FM Acquisition and the
WHAI-AM/FM Acquisition) for the 12 month period ending prior to such date of not
less than $32,000,000.
Section 5.2. Conditions Precedent to Each Credit Extension. The
obligation of each Lender and the Issuing Bank to make any Credit Extension
(including the initial Credit Extension) is subject to the satisfaction, as of
the date of such Credit Extension, of each of the following conditions
precedent:
(a) Required Notices.
(i) In the case of any requested Loan, the Agent shall have
timely received from the Borrower an application for such Loan in
accordance with Section 2.2 which notice without more shall constitute
certification by the Borrower as to the matters set forth in clause
(ii) of paragraph (b) below and paragraphs (c) and (d) below; and
(ii) In the case of any requested Letter of Credit, the Agent
and the Issuing Bank shall have timely received from the Borrower a
request for such Letter of Credit in accordance with Article III
hereof, which notice without more shall constitute certification by the
Borrower as to the matters set forth in clause (ii) of paragraph (b)
below and paragraphs (c) and (d) below.
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(b) Legality of Transactions. It shall not be unlawful (i) for the
Collateral Trustee, the Agent or the Lenders to perform any of their obligations
under any of the Loan Documents or (ii) for any Principal Company to perform any
of its obligations under any of the Loan Documents.
(c) Representations and Warranties. Each of the representations and
warranties made by the Principal Companies in this Agreement and the other Loan
Documents shall be true and correct in all material respects as of the date of
the making of such Credit Extension with the same force and effect as if made on
and as of such date (or, if any such representation or warranty is expressly
stated to relate only to a specific date, as of such specific date).
(d) Performance, Etc. Each Principal Company shall have duly and
properly performed, complied with and observed in all material respects each of
its obligations contained in this Agreement. No Default or Event of Default
shall be continuing or shall result from the requested Credit Extension.
ARTICLE VI
GUARANTY
Section 6.1. Guaranty of Payment.
(a) Guaranty. The Guarantors hereby absolutely and unconditionally, and
jointly and severally guaranty (for purposes of this Article VI, the "Guaranty")
to the Agent, the Issuing Bank and each Lender the due and punctual payment in
full of all the Obligations in accordance with their respective terms, whether
such Obligations are outstanding on the date of this Agreement or arise or are
incurred at any time or times thereafter.
(b) Guaranty of Payment. If any Principal Company shall fail to make
any payment of any of its Obligations to the Agent, the Issuing Bank or any
Lender when and as the same shall become due and payable, the Guarantors
absolutely and unconditionally promise, jointly and severally, to make such
payment to the Agent, the Issuing Bank or such Lender forthwith upon demand by
the Agent, the Issuing Bank or such Lender.
(c) Unlimited Guaranty. Subject to the provisions of Section 6.7, the
liability of each Guarantor under this Guaranty shall be unlimited.
(d) Guaranty Absolute. This Guaranty and the obligations of the
Guarantors hereunder shall be in addition to and shall not in any way be
prejudiced or affected by any other Collateral now or at any time or times
hereafter held by the Agent, the Collateral Trustee, the Issuing Bank or any
Lender, and every right, remedy, power or privilege given to the Issuing Bank,
the Lenders or the Agent under this Guaranty shall be in addition to and not in
limitation of any and every other right, remedy, power or privilege vested in
the Agent, the Collateral Trustee, the Issuing Bank or any Lender under any
other Collateral. No assurance, security or payment of any of the Obligations
which is avoided under any enactment relating to bankruptcy or liquidation or
insolvency, and no release, settlement or
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discharge given or made by the Issuing Bank, any Lender or the Agent on the
faith of any such assurance, security or payment, shall prejudice or affect the
rights of the Issuing Bank, the Lenders and the Agent to recover from the
Guarantors to the full extent of this Guaranty as if such assurance, security,
payment, release, settlement or discharge (as the case may be) had never been
given or made.
(e) Covenant by Guarantors. Without prejudice to any of the obligations
of the Guarantors to the Issuing Bank, the Lenders and the Agent under the
foregoing paragraphs of this Section 6.1, which obligations are absolute and
unconditional, but as a separate undertaking on the part of the Guarantors, the
Guarantors hereby absolutely covenant and agree to cause, to the extent it is
able, each Principal Company to perform and comply with all of the promises,
covenants, agreements and conditions to be performed and complied with by such
Principal Company which are contained in any of the Loan Documents, and the
Guarantors hereby further agree to take or to cause to be taken, promptly and
without any expense to the Agent, the Issuing Bank, or the Lenders, all such
measures as may be appropriate and can lawfully be effected by such Guarantors
to prevent the occurrence of any Default or Event of Default and to cure or make
good promptly any Default or Event of Default which may occur at any time or
times.
Section 6.2. Waivers of Notice, Etc. It is the express intention of the
Guarantors, the Issuing Bank, the Lenders and the Agent that the obligations of
the Guarantors to the Issuing Bank, the Lenders and the Agent under this
Guaranty, this Agreement and under any of the other Loan Documents shall not be
to any extent or in any way or manner whatsoever satisfied, discharged, impaired
or otherwise affected, except by the payment of the Obligations to the Agent,
the Issuing Bank and the Lenders, and then only to the extent of such payment.
Without limitation of the generality of the foregoing provisions of this Section
6.2, the obligations of the Guarantors to the Issuing Bank, the Lenders and the
Agent under this Guaranty shall not be to any extent or in any way or manner
whatsoever satisfied, discharged, impaired or otherwise affected by any of the
following, whether or not the Guarantors shall have had any notice thereof:
(a) The dissolution, termination of existence, insolvency, business
failure, appointment of a receiver for all or any part of the property of,
assignment for the benefit of creditors by, or the commencement of any
proceedings under any bankruptcy or insolvency laws by or against, any
Guarantor, any Principal Company, the Issuing Bank, the Agent or any Lender;
(b) The absorption, merger or consolidation of, or the effectuation of
any other change whatsoever in the name, membership, constitution or place of
formation of, any Guarantor, any Principal Company, the Agent, the Issuing Bank
or any Lender;
(c) Any extension or postponement of the time for the payment of any of
the Obligations, the acceptance of any partial payment thereon, any and all
other indulgences whatsoever by the Agent, the Issuing Bank or any Lender in
respect of any of the Obligations, the taking, addition, substitution or
release, in whole or in part, at any time or times, of any security for any of
the Obligations or the addition, substitution or release, in whole or in part,
of any person or persons primarily or secondarily liable in respect of any of
the Obligations;
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(d) Any action or delay in acting or failure to act on the part of the
Agent, the Issuing Bank or any Lender under any of the Loan Documents or in
respect of any of the Obligations or any of the Collateral or otherwise,
including any failure strictly or diligently to assert any right or to pursue
any remedy against any Guarantor or other persons under any of the Loan
Documents or provided by statute or at law or in equity;
(e) Any modification or amendment of, or any supplement or addition to,
the Obligations, this Agreement, any Note, or any of the other Loan Documents;
(f) Any waiver, consent or other action or acquiescence by the Agent,
the Issuing Bank or any Lender at any time or times in respect of any default by
any Guarantor or other Persons in the performance or observance of or compliance
with any term, covenant or condition contained in any of the Loan Documents;
(g) The existence or creation at any time or times on or after the date
of this Agreement of any claim, defense, right of set-off or counterclaim of any
nature whatsoever of any Guarantor against any Principal Company, the Agent, the
Issuing Bank or any Lender, or of any Principal Company against any Guarantor,
the Agent, the Issuing Bank or any Lender; or
(h) This Agreement, the Notes, any of the other Loan Documents or any
provisions of any thereof shall at any time and for any reason whatsoever cease
to be in full force and effect or shall be declared null and void or illegal,
invalid, unenforceable or inadmissible in evidence.
Each of the Guarantors hereby absolutely, unconditionally and
irrevocably assents to and waives notice of any and all events, conditions,
matters and things hereinbefore specified in clauses (a) through (h), inclusive,
of the foregoing sentence of this Section 6.2. Each of the Guarantors hereby
irrevocably waives presentment, demand, notice, protest, notice of protest,
notice of dishonor and all other demands and notices in connection with the
delivery, acceptance, performance, default or enforcement of this Agreement, any
Note, any of the other Loan Documents, any of the Obligations or any of the
Collateral.
Section 6.3. Election of Remedies. This Guaranty hereby made by the
Guarantors is the guaranty of the full and punctual payment and performance by
each Principal Company of all the Obligations and not of the collectability only
of such Obligations. This Guaranty may be enforced by the Agent, the Collateral
Trustee, the Issuing Bank or any Lender from time to time as often as the
occasion therefor may arise, regardless of the adequacy of any other Collateral,
and without any requirement on the part of the Agent, the Collateral Trustee,
the Issuing Bank or any Lender first to exercise any rights or remedies against
any other persons or to exhaust any remedies available to the Agent, the
Collateral Trustee, the Issuing Bank or any Lender against any other Guarantor
or any other persons or to resort to any Collateral in the possession of the
Agent, the Issuing Bank, any Lender or the Collateral Trustee or under the
control of the Agent, the Issuing Bank, any Lender or the Collateral Trustee or
to resort to any other source or means of obtaining payment or enforcing
performance of the Obligations or any of them.
Section 6.4. Expenses. The Guarantors hereby, jointly and severally,
unconditionally agree to pay to the Agent, on demand at any time by the Agent,
any and all
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reasonable costs and expenses which shall at any time or times be incurred or
sustained by the Agent, the Issuing Bank or any Lender in connection with the
enforcement by the Agent, the Issuing Bank or any Lender of all or any of the
rights, remedies, powers or privileges of the Agent, the Issuing Bank or such
Lender under Article VI of this Agreement (including the reasonable fees and
disbursements of counsel incurred by the Agent, the Issuing Bank or any Lender
in connection therewith).
Section 6.5. Unenforceability of Obligations. It is hereby agreed by
each Guarantor as a separate and independent stipulation that, if any other
Guarantor shall cease to have any obligation to discharge its Obligations or any
of them or if any of the moneys included in the Obligations shall become
irrecoverable from any other Guarantor or if any of the Obligations shall become
invalid or unenforceable, in whole or in part, against any other Guarantors for
any reason whatsoever (legal or otherwise), including, but not limited to, any
of the following reasons: (a) any defect in or insufficiency of the powers of
any other Guarantors or any irregular or improper exercise thereof, (b) the
operation of any statute of limitations or the operation of any other laws now
or hereafter in effect, or (c) the existence of any legal limitation, disability
or incapacity affecting or otherwise relating to any other Guarantor, then this
Guaranty and the obligations of such Guarantor to the Agent, the Issuing Bank
and the Lenders hereunder shall nevertheless be binding on and enforceable
against such Guarantors as if the Obligations were, at the time of demand by the
Agent, the Issuing Bank or any Lender upon the Guarantors for payment under this
Guaranty, fully valid and enforceable against such other Guarantors and as if
such Guarantors were, at the time of such demand, the principal debtors in
respect of all of the Obligations.
Section 6.6. Subrogation Rights; Subordination of Subrogation Rights.
The rights which any Guarantor shall acquire against any Principal Company as a
consequence of making any payment to the Agent, the Issuing Bank or any Lender
under its Guaranty are, in this Section 6.6, collectively called the
"Subrogation Rights." In the event of any proceeding for the distribution,
division or application of all or any part of the assets of any such Principal
Company, whether such proceeding be for the liquidation, dissolution or winding
up of such Principal Company, a receivership, insolvency or bankruptcy
proceeding, an assignment for the benefit of creditors, or a proceeding by or
against such Principal Company for relief under any bankruptcy, reorganization
or insolvency law, if all of the Obligations have not been paid and satisfied in
full in cash at the time, the Agent is hereby irrevocably authorized by such
Guarantor at any such proceeding:
(a) To enforce all the Subrogation Rights of such Guarantor, either in
the name of the Agent, the Issuing Bank or the Lenders or in the name of such
Guarantor, by proof of debt, proof of claim, suit or otherwise;
(b) To collect any assets of such Principal Company distributed or
applied by way of dividend or payment on account of such Subrogation Rights, and
to apply the same, or the proceeds of any realization thereof, towards the
payment of Obligations until all Obligations have been paid and satisfied in
full; and
(c) To vote claims arising under or in respect of all such Subrogation
Rights.
So long as any Obligations remain unpaid, no Guarantor shall take any
action of any kind to enforce any of its Subrogation Rights, and no Guarantor
shall receive or accept from
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any Person or Persons any payments or other distributions in respect of any of
its Subrogation Rights. Should any payment on account of any Subrogation Rights
be received by any Guarantor, such payment shall be delivered by such Guarantor
forthwith to the Agent in the form received by such Guarantor, except for the
addition of any endorsement or assignment necessary to effect transfer of all
rights therein to the Agent, the Issuing Bank and the Lenders. Until so
delivered, each such payment shall be held by such Guarantor in trust for the
ratable benefit of the Agent, the Issuing Bank and the Lenders and shall not be
commingled with any other funds of any Guarantor.
Section 6.7. Limitation on Obligations. It is the intention and
agreement of each of the Guarantors, the Agent, the Issuing Bank and the Lenders
that the obligations of each Guarantor under the provisions of this Article VI
shall be in, but not in excess of, the maximum amount permitted by applicable
law. Accordingly, notwithstanding anything to the contrary contained in this
Article VI, the obligations of each Guarantor under this Article VI shall be
reduced to that amount which, after giving effect thereto, would not render such
Guarantor insolvent or unable to pay its debts and liabilities as they mature or
leave such Guarantor with unreasonably small capital or otherwise exceed the
maximum amount permitted under any federal or state fraudulent conveyance law
applicable to this Article VI. This Section 6.7 is intended solely to preserve
the rights of the Agent, the Issuing Bank and the Lenders under this Agreement
to the maximum extent permitted by applicable law and no Guarantor nor any other
Person shall have any right under this Section 6.7 that it would not otherwise
have under applicable law.
Section 6.8. Security; Setoff. Each of the Guarantors grants to each of
the Agent, the Issuing Bank and the Lenders, as security for the full and
punctual payment and performance of all of the Guarantors' obligations
hereunder, a continuing lien on and security interest in all securities or other
property belonging to each such Guarantor now or hereafter held by such Agent,
the Issuing Bank or such Lender and in all deposits (general or special, time or
demand, provisional or final) and other sums credited by or due from such Agent,
the Issuing Bank or such Lender to such Guarantor or subject to withdrawal by
such Guarantor. Regardless of the adequacy of any collateral security or other
means of obtaining payment of any of the Obligations, each of the Agent, the
Issuing Bank and the Lenders is hereby authorized at any time and from time to
time, without notice to any of the Guarantors (any such notice being expressly
waived by each of the Guarantors) and to the fullest extent permitted by law, to
set off and apply such deposits and other sums against the obligations of such
Guarantor under this Guaranty, whether or not such Agent, the Issuing Bank or
such Lender shall have made any demand under this Guarantee and although such
obligations may be contingent or unmatured.
ARTICLE VII
DELIVERY OF FINANCIAL REPORTS, DOCUMENTS
AND OTHER INFORMATION
The undersigned Principal Companies agree with the Agent and each of
the Lenders that, until all Commitments have been terminated, all Letters of
Credit have been fully drawn or have terminated or expired and all Obligations
have been paid in cash in full, the Principal Companies shall deliver to each
Lender:
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Section 7.1. Annual Financial Statements. Annually, as soon as
available, but in any event within ninety (90) days after the last day of each
of the Borrower's fiscal years, consolidated and consolidating balance sheets of
the Borrower and its Subsidiaries (and, separately stated, of the Borrower and
its Restricted Subsidiaries) at such last day of such fiscal year, and
consolidated and consolidating statements of operations and cash flow of the
Borrower and its Subsidiaries (and, separately stated, of the Borrower and its
Restricted Subsidiaries) for such fiscal year, each prepared in accordance with
GAAP consistently applied, in reasonable detail, and, as to the consolidated
statements, certified without qualification by Ernst & Young or another firm of
independent certified public accountants satisfactory to the Agent, or
certified, as to the consolidating statements, by the Chief Financial Officer,
as fairly presenting the financial position and the results of operations of the
Borrower and its Subsidiaries (or of the Borrower and its Restricted
Subsidiaries, as the case may be) as at and for the year ending on its date and
as having been prepared in accordance with GAAP.
Section 7.2. Quarterly Financial Statements. As soon as available, but
in any event within sixty (60) days after the end of each of the Borrower's
fiscal quarters, a consolidated and consolidating balance sheet of the Borrower
and its Subsidiaries (and, separately stated, of the Borrower and its Restricted
Subsidiaries) as of the last day of such quarter and consolidated and
consolidating statements of operations and cash flow of the Borrower and its
Subsidiaries (and, separately stated, of the Borrower and its Restricted
Subsidiaries) for such quarter and for the portion of the Borrower's fiscal year
then elapsed, each such statement showing the comparison of the Borrower's
performance for such periods to the corresponding periods for the prior year,
all in reasonable detail, each such statement to be certified in a certificate
of the Chief Financial Officer as accurately representing the financial position
and the results of operations of the Borrower and its Subsidiaries (or of the
Borrower and its Restricted Subsidiaries, as the case may be) as at its date and
for such quarter and for the portion of the fiscal year then ended and as having
been prepared in accordance with GAAP consistently applied (subject to year-end
audit adjustments).
Section 7.3. Compliance Information. Concurrently with any delivery of
financial statements under Sections 7.1 or 7.2, a certificate, in form and
substance reasonably satisfactory to the Agent, of the Chief Financial Officer
of the Borrower (i) certifying that as of the effective date of the certificate,
no Default or Event of Default is continuing or, if a Default or Event of
Default is continuing, specifying the nature and the extent thereof and any
corrective action taken or proposed to be taken with respect thereto, (ii)
setting forth computations in reasonable detail (A) demonstrating compliance
with the covenants set forth in Article X and Sections 9.1, 9.3 (with respect to
Permitted Sales), 9.4(i) and 9.5 and (B) in the case of any certificate
delivered with Financial Statements under Section 7.1, calculating Excess Cash
Flow for the fiscal year then ended (iii) certifying that the representations
and warranties contained in Article IV hereof are true and correct in all
material respects as of the date of such certificate, with the same force and
effect as if made on and as of such date (or, if any representation or warranty
is expressly stated to relate only to a specific date, as of such specific
date).
Section 7.4. Accountants' Reports. Promptly upon receipt thereof,
copies of all management letters and other material reports submitted to any
Principal Company by its
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independent accountants in connection with any annual or interim audit or review
of the books of any Principal Company made by such accountants.
Section 7.5. Copies of Documents. Promptly upon their becoming
available, copies of any: (i) financial statements, projections, non-routine
reports, notices (other than routine correspondence), requests for waivers and
proxy statements, in each case, delivered by any Principal Company to any holder
of Indebtedness for Borrowed Money other than the Lenders; (ii) correspondence
or notices received by any Principal Company from any Governmental Authority
which regulates the operations of the Principal Companies, including the FCC,
relating to an actual or threatened change or development which could be
materially adverse to the Principal Companies or any Station, and all
applications for renewals of any of the FCC Licenses; (iii) registration
statements, prospectuses and any amendments and supplements thereto, and any
regular and periodic reports (including reports on Form 10K, Form 10Q or Form
8K), if any, filed by any Principal Company with any securities exchange or with
the Securities and Exchange Commission or any Governmental Authority succeeding
to any or all of the functions of the said Commission (collectively, the "Public
Filings"); (iv) letters of comment or correspondence sent to any Principal
Company by any such securities exchange or such Commission in relation to such
Principal Company and its affairs; (v) written reports submitted by any
Principal Company or by its independent accountants in connection with any
annual or interim audit of the books of such Principal Company made by such
accountants; (vi) any appraisals received by such Principal Companies with
respect to the properties or assets of such Principal Company; and (vii) any
report, document, notices or proxy statement sent by any Principal Company to
any of its stockholders or members.
Section 7.6. Annual Budget. Annually, as soon as available but in any
event within thirty (30) days after the last day of each of the Borrower's
fiscal years, a summary of business plans in the form of consolidated and
consolidating (on a station-by-station and market-by-market basis) financial
operating projections for the Borrower and its Restricted Subsidiaries for the
upcoming year, including (a) balance sheets, and (b) statements of operations
and cash flows (indicating projected revenues and expenses), each prepared for
the upcoming fiscal year on a monthly basis (together with reasonable
assumptions and explanations attached thereto), all in form and substance
satisfactory to the Required Lenders.
Section 7.7. Additional Information. Such other information regarding
the business, affairs and condition of the Borrower and its Subsidiaries as the
Agent or the Required Lenders may from time to time reasonably request,
including monthly financial statements.
ARTICLE VIII
AFFIRMATIVE COVENANTS
The undersigned Principal Companies agree with the Agent and each
Lender that, until all Commitments have been terminated, all Letters of Credit
have been fully drawn or have terminated or expired and all Obligations have
been paid in cash in full, each Principal Company shall:
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Section 8.1. Payment and Performance of Obligations. Pay its
Indebtedness and pay and perform its Contractual Obligations promptly and in
accordance with their respective terms, including all Taxes, assessments and
governmental charges upon its income or profits or in respect of its Assets and
all lawful claims for labor, material and supplies or otherwise which, if
unpaid, might give rise to a Lien upon its Assets, unless and to the extent that
such Indebtedness or Contractual Obligations are being contested in good faith
and by appropriate proceedings and that proper and adequate reserves relating
thereto are established in accordance with GAAP by the appropriate Principal
Companies and then only to the extent that a bond is filed in cases where the
filing of a bond is necessary to avoid the creation of a Lien against any of its
properties. Nothing in this Section 8.1 shall (i) relieve any Principal Company
from its absolute and unconditional obligation to pay and perform all
Obligations of such Principal Company promptly and in accordance with their
respective terms, or (ii) require any Principal Company to pay or perform any
obligations in respect of Subordinated Debt if prohibited by any subordination
provisions applicable thereto.
Section 8.2. Conduct of Business. Do, or cause to be done, all things
reasonably necessary to (i) preserve and keep in full force and effect its
corporate (or the equivalent company) existence and good standing under the laws
of its jurisdiction of incorporation or formation, (ii) obtain, maintain,
preserve, renew, extend and keep in full force and effect all material permits,
rights, licenses, franchises, authorizations, patents, Trademarks, Copyrights
and privileges reasonably necessary for the proper conduct of its business,
including FCC Licenses (except for (a) FCC licenses for Secondary Stations and
(b) Sales of Assets permitted by Section 9.3), (iii) conduct and operate its
business substantially in the manner in which it is presently conducted and
operated, (iv) comply in all material respects with all Requirements of Law,
including the Communications Act, (v) comply with all its Governing Documents,
(vi) maintain its qualification to do business in each jurisdiction in which the
failure to do so would have a Material Adverse Effect, (vii) maintain and
preserve all the remainder of its Assets and property, and all improvements
thereon, in use or useful in the conduct of its business and keep the same in
reasonable repair, working order and condition as the same is now or may
hereafter be put (taking into consideration ordinary wear and tear), damage from
casualty expressly not excepted, and from time to time make, or cause to be
made, all needful and proper repairs, renewals and replacements, betterments,
additions and improvements thereto consistent with industry practices, so that
the business carried on in connection therewith may be properly and
advantageously conducted at all times, such repairs, renewals and replacements,
betterments, additions and improvements to be conducted in accordance with the
terms of Section 8.5, (viii) transact business in such names as such Principal
Company has from time to time used in conducting its business, and (ix) maintain
its executive offices and principal place of business at the locations set forth
on Schedule 8.2 hereto, or at such other place in the United States of America
as the Borrower shall designate upon written notice to the Agent.
Notwithstanding anything in this Section 8.1 or elsewhere in this Agreement to
the contrary, the Principal Companies will not, and will not cause or permit any
Station, to:
(a) enter into any so called "local market agreements" or any other
arrangements with any other Communication System (other than another Station)
whereby the parties agree to function cooperatively in terms of programming,
advertising, sales, management, consulting or similar services, except for (i)
any such agreements or arrangements existing
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on the date hereof and described in Schedule 8.2(a) or (ii) any Permitted LMA
Transactions; or
(b) enter into any so-called "time brokerage agreements" or any other
agreements or arrangements under which any Station shall (i) sell broadcast time
to any other Communication System (other than another Station) which programs
such broadcast time and sells its own commercial advertising announcements
during such broadcast time or (ii) purchase broadcast time on any other
Communication System (other than another Station) for the purpose of programming
such broadcast time and selling its commercial advertisements during such time,
except for (i) such agreements or arrangements existing on the date hereof and
described on Schedule 8.2(b) hereto or (ii) Permitted LMA Transactions; or
(c) otherwise enter into any oral or written agreement with any other
Person (other than one of the Principal Companies) pursuant to which any
employee or any Assets owned by any Principal Company would be used by or shared
with any other Person (other than one of the Principal Companies).
Section 8.3. Books and Records. Keep proper books of record and account
in a manner reasonably satisfactory to the Agent in which full, true and correct
entries shall be made in accordance with GAAP and maintain adequate accounts and
reserves for all Taxes (including income taxes), all depreciation, depletion,
obsolescence and amortization of its properties, all other contingencies, and
all other proper reserves. Maintain a fiscal year ending December 31 of each
year.
Section 8.4. Inspections and Audits. Permit any officer or employee
designated by the Agent or any Lender to visit and inspect any of its properties
and to examine and audit its books and discuss the affairs, finances and
accounts of any Principal Company with its officers, all at such reasonable
times, upon reasonable notice, in a reasonable manner and as often as the Agent
or the Required Lenders may reasonably request. The Principal Companies shall
pay all reasonable out-of-pocket expenses incurred by any officers or employees
of the Agent or any Lender in connection with any such visitation, audits and
inspection.
Section 8.5. Insurance.
(a) Maintain insurance covering, without limitation, fire, public
liability, property damage, product liability, workers' compensation and
insurance on all Assets of each Principal Company, all in amounts customary for
the industry and under policies issued by financially sound and reputable
insurers satisfactory to the Agent and, with respect to any such insurance
policies covering all or any portion of the Collateral or any business
interruption insurance, with a lender's loss payable clause in favor of the
Collateral Trustee for the benefit of the Lenders, as their interests may
appear, and naming the Agent as additional insured. All such policies of
insurance shall be endorsed or otherwise amended to include a lender's loss
payable endorsement, in form and substance reasonably satisfactory to the
Collateral Trustee, which shall provide that, from and after the date, if any,
on which the insurance carrier receives written notice from the Collateral
Trustee that an Event of Default (a "Default Notice") has occurred, all proceeds
otherwise payable to any Principal Company under such policies shall be payable
directly to the
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Collateral Trustee. Such endorsement or an independent instrument furnished to
the Collateral Trustee shall provide that the insurance carriers will give the
Collateral Trustee at least 30 days' prior written notice before any such policy
or policies of insurance shall be altered or canceled and that no act or default
of any Principal Company or any other Person shall affect the right of the
Collateral Trustee to recover under such policy or policies of insurance in case
of loss or damage.
(b) Each of the Principal Companies irrevocably makes, constitutes, and
appoints the Collateral Trustee (and all officers, employees, or agents
designated by the Collateral Trustee) as such Principal Company's true and
lawful attorney (and agent-in-fact) effective upon the giving of a Default
Notice and the continuance of an Event of Default for the purpose of making,
settling, and adjusting claims under policies of insurance, endorsing the name
of such Principal Company on any check, draft, instrument or other item or
payment for the proceeds of such policies of insurance and for making all
determinations and decisions with respect thereto. In the event that any
Principal Company at any time or times shall fail to obtain or maintain any of
the policies of insurance required hereby or to pay any premium in whole or part
relating thereto, the Collateral Trustee may, without waiving or releasing any
obligation or liability of such Principal Company hereunder or any Event of
Default, in the Collateral Trustee's sole discretion, obtain and maintain such
policies of insurance and pay such premiums and take any other actions with
respect thereto as the Collateral Trustee deems advisable. All such sums so
disbursed by the Collateral Trustee, including reasonable attorneys' fees, court
costs, expenses and other charges relating thereto, shall be payable, upon
demand, by such Principal Company to the Collateral Trustee and shall be
additional Obligations hereunder.
Section 8.6. Notice of Defaults, Litigation; Etc. Deliver to the Agent
and the Lenders prompt written notice of the following:
(a) Any Default or Event of Default, specifying the nature and extent
thereof and the corrective action proposed to be taken in respect thereto.
(b) The filing or commencement of or written notice of intention to
file or commence any action, suit or proceeding, whether at law or at equity or
by or before any Governmental Authority, by or against or affecting any
Principal Company, that, if determined adversely to such Principal Company,
could result in a Default or an Event of Default described in Section 11.1(i)
hereof.
(c) Any development that has resulted in, or could reasonably be
anticipated to result in, a Material Adverse Effect.
(d) Any termination, amendment, modification or supplement of any
Governing Document of any Principal Company or any Ancillary Document or any
waiver under any Ancillary Document, and deliver to the Agent copies of any such
termination, amendment, modification, supplement, or waiver (to the extent the
same is reflected in any writing).
Section 8.7. ERISA Notices.
(a) Promptly notify the Agent in writing of the occurrence of any ERISA
Reportable Event, if a notice of such ERISA Reportable Event is required under
ERISA to
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be delivered to the PBGC within thirty (30) days after the occurrence thereof,
together with a description of such ERISA Reportable Event and a statement of
the action the Principal Companies intends to take with respect thereto,
together with a copy of any notice thereof given to the PBGC.
(b) Promptly upon filing the same with the Department of Labor or
Internal Revenue Service, furnish to the Agent a copy of the most recent
actuarial statement required to be submitted under Section 103(d) of ERISA and
Annual Report, Form 5500, with all required attachments, in respect of each
Guaranteed Pension Plan; and
(c) Promptly upon receipt or dispatch, furnish to the Agent any notice,
report or demand sent or received in respect of a Guaranteed Pension Plan under
Sections 302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in
respect of a Multiemployer Plan, under Sections 4041A, 4202, 4219, 4242, or
4245 of ERISA.
Section 8.8. No Termination of Loan Documents, Etc. Take or cause to be
taken, promptly and without expense to the Agent or the Lenders, all such action
as may be required to prevent, and refrain from taking any action that might
cause, the termination, cancellation, amendment, rescission or default of any
provision of any of the Loan Documents other than in accordance with the terms
thereof.
Section 8.9. Environmental Laws.
(a) Comply with, and use its best efforts to insure compliance by all
Subsidiaries, tenants and subtenants, if any, with, all Environmental Laws and
obtain and comply with and maintain, and use its best efforts to insure that all
tenants and subtenants obtain and comply with and maintain, any and all
licenses, approvals, registrations or permits required by any Environmental
Laws, except to the extent that the failure to do so could not have a Material
Adverse Effect.
(b) Conduct and complete or cause to be conducted and completed, with
respect to its Assets and those of its Subsidiaries, all investigations,
studies, sampling and testing, and all remedial, removal and other actions
required under any Environmental Laws and promptly comply with, and cause its
Subsidiaries to comply with, all lawful orders and directives of all
Governmental Authorities respecting Environmental Laws, except to the extent
that the same are being contested in good faith by appropriate proceedings and
the pendency of such proceedings could not reasonably be expected to have a
Material Adverse Effect or result in a Lien upon any real property of any of the
Principal Companies.
(c) Promptly notify the Agent in writing if any Borrower Affiliated
Company receives: (i) any notice of any violation or administrative or judicial
complaint or order having been filed or about to be filed against any Borrower
Affiliated Company alleging violations of any Environmental Law, or (ii) any
notice from any Governmental Authority or any other Person alleging that any
Borrower Affiliated Company is or may be subject to any Environmental Liability;
and promptly upon receipt thereof, provide the Agent with a copy of such notice
together with a statement of the action the Principal Companies intend to take
with respect thereto.
Section 8.10. [Intentionally Deleted].
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Section 8.11. Governmental Approvals. Obtain all such approvals or
consents from, and take all such other actions with respect to, any Governmental
Authority as may be required for the execution, delivery and performance of the
Loan Documents and the Ancillary Documents, and duly perform and comply with all
of the terms and conditions of all approvals or consents so obtained.
Section 8.12. Collateral for Loans.
(a) Cause all outstanding shares or interests of the Capital Stock of
each Restricted Subsidiary to be pledged to the Collateral Trustee in accordance
with the provisions of the Stock Pledge Agreements at all times from and after
the Effective Date.
(b) From time to time, at its own cost and expense, promptly secure or
cause to be secured the Obligations by creating or causing to be created in
favor of the Collateral Trustee for the benefit of the Secured Creditors
perfected security interests and liens (subject only to Liens permitted by
Section 9.2) with respect to all Perfected Collateral of the Principal
Companies, now owned or hereafter acquired, to the extent the Agent or the
Required Lenders shall so request. All such security interests will be created
under security agreements, mortgages and other instruments and documents in form
and substance satisfactory to the Agent, and the Borrower shall deliver to the
Collateral Trustee (with copies to the Agent) all such instruments and documents
(including legal opinions, title insurance policies and lien searches) as the
Agent or the Required Lenders shall reasonably request to evidence the
satisfaction of the obligations created by this Section 8.12. The Borrower
agrees to provide such evidence as the Agent or the Required Lenders shall
request as to the perfection and priority of such security interests (subject
only to Liens permitted by Section 9.2). So long as no Event of Default is
continuing, no Intellectual Property Security Agreement shall be required to be
recorded in the United States Patent and Trademark or the United States
Copyright Office if such Intellectual Property Security Agreement covers no
Material Intellectual Property.
Section 8.13. Dividends. In the case of the Borrower, permit its
Restricted Subsidiaries to pay cash dividends or make advances or repay
advances, and cause its Restricted Subsidiaries to pay such cash dividends or
make such advances or repay such advances, to the extent required to ensure that
the Borrower can pay its monetary Obligations as the same become due.
Section 8.14. Appraisals. If any Lender determines in good faith that
it is required, by Applicable Law or by the Comptroller of Currency or any other
Government Authority, to obtain appraisals as to the market value of any real
property constituting Collateral, obtain such appraisals, at the sole cost and
expense of the Principal Companies. Such appraisals shall conform in all
respects with the requirements contained in 12 U.S.C. Section 93a and Title XI
of the Financial Institutions, Reform, Recovery and Enforcement Act of 1989 and
the corresponding regulations under 12 C.F.R. 34.41 et seq (1990) and shall be
consistent with the Comptroller of the Currency's Guidelines for Real Estate
Appraisal Policies and Review Procedures (as such Requirements of Law or such
policies and procedures may be amended, supplemented, restated, or otherwise
modified from time to time).
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Section 8.15. Permitted Acquisitions.
(a) In the case of any personal property or fixtures (other than Assets
set forth on Schedule 4.4(a) or Assets excluded by the express terms of the
Security Documents) acquired by any Principal Company after the date hereof in
connection with a Permitted Acquisition (i) pledge such personal property or
fixtures (to the maximum extent permitted by applicable law) to the Collateral
Trustee as security for the payment in full of all the Obligations, pursuant to
documentation satisfactory to the Agent (but in any event not materially more
restrictive or burdensome than the Security Documents in effect as of the date
hereof), within ten (10) days of such Principal Company acquiring such personal
property or fixtures and (ii) perform any filings, recordings or other actions
necessary in the reasonable judgment of the Agent to create in favor of the
Collateral Trustee a perfected first-priority security interest in all such
personal property or fixtures subject only to Liens permitted by Section 9.2
within ten (10) days of such Principal Company acquiring such personal property
or fixtures. If any such personal property includes Trademarks, patents or
Copyrights, then so long as no Event of Default is continuing, no Intellectual
Property Security Agreement shall be required to be recorded in the United
States Patent and Trademark or the United States Copyright Office if such
Intellectual Property Security Agreement covers no Material Intellectual
Property.
(b) In the case of any Material Real Property acquired by any Principal
Company after the date hereof in connection with a Permitted Acquisition or
otherwise, if the Required Lenders so request (i) execute and deliver to the
Collateral Trustee, within fifteen (15) days after such Principal Company takes
or receives possession of such Material Real Property, a mortgage granting to
the Collateral Trustee a perfected Lien on such Material Real Property and (ii)
deliver to the Collateral Trustee, within thirty (30) days after such Principal
Company takes or receives possession of such Material Real Property, ALTA
mortgage policies of title insurance covering all such Material Real Property
and issued by title insurance companies satisfactory to the Agent, with proof of
payment of all fees and premiums of such policy; provided, further that the
amount, form and substance of each such mortgage title insurance policy shall be
satisfactory to the Agent and each such title insurance policy shall contain no
Schedule B standard preprinted exceptions (other than for taxes not yet due and
payable and matters which would be disclosed by a current survey of the
property) and shall contain no exceptions for coverage other than for Liens
which the Agent reasonably determines are Permitted Liens.
(c) Deliver to the Agent and the Agent's Special Counsel within ten
(10) days after the date of any Permitted Acquisition, true, complete and
correct copies of each instrument of transfer, officer's certificate, legal
opinion and other instrument or agreement executed and delivered by the
applicable seller and/or the applicable Principal Company in connection with
such Permitted Acquisition.
Section 8.16. Further Assurances. Cooperate with the Agent and the
Lenders and take such action and execute such further instruments and documents
as the Agent shall reasonably request to further and more perfectly effect the
purposes of this Agreement and the other Loan Documents.
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ARTICLE IX
NEGATIVE COVENANTS
The undersigned Principal Companies agree with the Agent and each of
the Lenders that, until all Commitments have been terminated, all Letters of
Credit have been fully drawn or have terminated or expired and all Obligations
have been paid in cash in full, the Principal Companies shall not:
Section 9.1. Indebtedness. Create, incur, assume or permit to exist any
Indebtedness to any Person, except:
(a) the Obligations,
(b) Taxes, assessments and governmental charges, non-interest bearing
accounts payable and accrued liabilities, in any case not more than 120 days
past due from the original due date thereof (except any such amounts that are
not required to be paid in accordance with Section 8.1 or that are described on
Schedule 4.11), and non-interest bearing deferred liabilities other than
Indebtedness for Borrowed Money (e.g., deferred compensation and deferred
taxes), in each case incurred and continuing in the ordinary course of business;
(c) Indebtedness consisting of purchase money debt and Capitalized
Lease Obligations in a combined aggregate principal amount not exceeding at any
time $3,000,000;
(d) Subordinated Debt;
(e) Indebtedness of any Principal Company to any other Principal
Company;
(f) Indebtedness of the Principal Companies in respect of endorsements
of negotiable instruments for collection in the ordinary course of business;
(g) Indebtedness of the Borrower in respect of Guaranties of
Indebtedness of any of the Restricted Subsidiaries;
(h) Indebtedness of Saga Broadcast in respect of Guaranties of
Indebtedness of any of the Restricted Subsidiaries;
(i) Indebtedness described on Schedule 9.1(i) annexed hereto; and
(j) Indebtedness of the Borrower under Interest Rate Contracts entered
into for bona fide hedging purposes, and not for speculative purposes.
Section 9.2. Liens. Create, incur, assume or permit to exist any Lien
on any of its Assets, now owned or hereafter acquired, except:
(a) Liens created by the Security Documents;
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(b) Permitted Liens;
(c) any Lien existing on any Asset prior to the acquisition thereof by
any Principal Company; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition; (ii) such Lien does not
apply to any other property or Assets of any Principal Company; (iii) such
acquisition is permitted by this Agreement, and (iv) all Indebtedness secured by
such Lien is permitted by this Agreement;
(d) (i) purchase money mortgages or security interests, conditional
sale arrangements and other similar security interests, in real property,
improvements thereto, equipment or motor vehicles acquired (or, in the case of
improvements, constructed) by any Principal Company (hereinafter referred to
individually as a "Purchase Money Security Interest") with proceeds of
Indebtedness permitted by Subsection 9.1(c) and (ii) interests of lessors under
Capitalized Leases entered into by any Principal Company and permitted by
Subsection 9.1(c); provided, that with respect to any Purchase Money Security
Interest:
(A)the transaction in which any Purchase Money Security
Interest is proposed to be created shall not be prohibited by this
Agreement;
(B)any Purchase Money Security Interest shall attach only to
the Asset acquired (or constructed) and shall not extend to or cover
any other Asset of any Principal Company; and
(C)the Indebtedness secured by any Purchase Money Security
Interest shall not exceed the lesser of the cost or fair market value
of the Asset acquired (or constructed) and shall not be renewed,
extended or repaid from the proceeds of any borrowing by any Principal
Company.
(e) Liens consisting of deposits made by any Principal Company to
secure performance of its obligations in connection with Permitted Acquisitions;
(f) Liens on Assets of the Principal Companies existing on the date
hereof and described in Schedule 9.2; provided, that such Liens shall secure
only those obligations which they secure on the date hereof;
(g) Liens on amounts held in a post-closing escrow account securing
indemnity obligations in connection with a Sale of Assets permitted hereunder;
and
(h) Liens on Investments permitted by Subsection 9.4(i).
Section 9.3. Mergers, Consolidations, Sales of Assets.
(a) Merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with it, or engage in any Sale of any
of its Assets; except that, so long as no Default or Event of Default is
continuing or would exist after giving effect thereto, the following shall be
permitted:
(i) (A) any merger of any wholly-owned Restricted Subsidiary
of the Borrower with and into the Borrower or any other wholly-owned
Restricted Subsidiary of the
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Borrower or (B) any sale, transfer or other disposition by any
wholly-owned Restricted Subsidiary of the Borrower of any Assets to the
Borrower or any other wholly-owned Restricted Subsidiary of the
Borrower; provided, that (1) the Agent is satisfied that none of the
Collateral Trustee's Liens on the Assets of the Borrower or any
Restricted Subsidiary would become impaired, unperfected or
unenforceable in any respect, and (2) the Agent is satisfied that all
appropriate consents and approvals of any Governmental Authorities
(including the FCC) have been obtained, and copies of all such consents
and approvals have been delivered to the Agent;
(ii) any Permitted Sale; and
(iii) any other sale of any Assets by any Principal Company;
provided, that:
(A) the total consideration (taking appropriate account of
any tax benefits associated with any sale in which such Principal
Company obtains tax certificates issued by the FCC) payable to or
receivable by the Principal Companies in connection with such sale (1)
is an amount not less than the fair value of the Assets sold and (2)
consists of at least 90% cash which is (x) payable at the closing of
such sale or (y) held in a post-closing escrow account as security for
indemnity obligations;
(B) the aggregate annual Consolidated EBITDA attributable
to all Assets sold by the Principal Companies during any Reference
Period ending after the Effective Date (determined separately for each
sale of Assets based upon Consolidated EBITDA attributable to such
Assets for the Reference Period ending most recently prior to the date
of sale) shall not exceed ten percent (10%) of the Consolidated EBITDA
of the Principal Companies for such Reference Period (determined
without regard to any sales of Assets during such Reference Period);
and
(C) the aggregate annual Consolidated EBITDA attributable
to all Assets sold by the Principal Companies during the period
commencing on the Effective Date and ending on the last day of any
Reference Period ending thereafter (determined separately for each sale
of Assets based upon Consolidated EBITDA attributable to such Assets
for the Reference Period ending most recently prior to the date of
sale) shall not exceed twenty-five percent (25%) of the Consolidated
EBITDA of the Principal Companies for such Reference Period (determined
without regard to any sales of Assets during such Reference Period).
(b) Change the corporate (or the company equivalent) structure or
organization of the Principal Companies from that set forth in Schedule 9.3,
provided, however, that any Principal Company may (x) make a Permitted
Acquisition, (y) be party to an intercompany merger permitted by Subsection
9.3(a)(i), and (z) form one or more wholly-owned Restricted Subsidiaries so long
as:
(i) the Borrower or such Restricted Subsidiary shall notify
the Agent and the Collateral Trustee at least ten (10) days prior to
the formation or acquisition of such Restricted Subsidiary;
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(ii) each such new Restricted Subsidiary executes and delivers
to the Agent and the Lenders (A) an accession agreement, in form and
substance satisfactory to the Agent, pursuant to which such Restricted
Subsidiary (1) becomes a party to this Agreement as a Principal Company
and as a Guarantor, becomes a party to the Borrower Subsidiary Security
Agreement as a "Borrower Subsidiary", becomes a party to the Indemnity,
Contribution and Subrogation Agreement as a "Borrower Affiliated
Company", and becomes a party to any other Loan Document as the Agent
may reasonably request, and (2) agrees to perform and observe all of
the obligations and covenants (including all obligations and covenants
contained in Article VI hereof) of a Principal Company and a Guarantor
hereunder, of a "Borrower Subsidiary" under the Borrower Subsidiary
Security Agreement, of a "Borrower Affiliated Company" under the
Indemnity, Contribution and Subrogation Agreement, and of the
appropriate party under any other Loan Document to which it becomes a
party and (B) any Intellectual Property Security Agreement, as
applicable;
(iii) all of the outstanding Capital Stock of such new
Restricted Subsidiary shall be pledged to the Collateral Trustee, for
the ratable benefit of the Agent and the Lenders, pursuant to (A) a
stock pledge agreement substantially in the form of the Borrower Stock
Pledge Agreement or (B) a membership interest pledge agreement
substantially in the form of the Lakefront Membership Interest Pledge
Agreement, as applicable;
(iv) such new Restricted Subsidiary shall otherwise grant a
security interest in all of its Assets of the type described in the
Borrower Subsidiary Security Agreement to the Collateral Trustee as
security for all the Obligations and shall make all filings, recordings
and take such other actions (including the filing of financing
statements and the filing of Intellectual Property Security Agreements,
in form and substance satisfactory to the Agent, in the United States
Patent and Trademark Office or the United States Copyright Office with
respect to any Material Intellectual Property) required by the Agent or
the Collateral Trustee in order to create, in favor of the Collateral
Trustee, a perfected first-priority Lien on all of such Assets of the
new Restricted Subsidiary (other than Assets of the type listed on
Schedule 4.4(a)) and all of the Capital Stock of such new Restricted
Subsidiary; and
(v) such new Restricted Subsidiary shall grant a security
interest in and mortgage on its owned Material Real Property pursuant
to a mortgage on such Assets in form and substance satisfactory to the
Agent and the Collateral Trustee, which mortgage shall be filed of
record promptly after such new Restricted Subsidiary is formed and ALTA
mortgagee policies of title insurance covering such Material Real
Property and issued by title insurance companies satisfactory to the
Agent, with proof of payment of all fees and premiums of such policy;
provided, further that the amount, form and substance of each such
mortgage title insurance policy shall be satisfactory to the Agent and
each such title insurance policy shall contain no Schedule B preprinted
exceptions (other than for taxes not yet due and payable and matters
which would be disclosed by a current survey of the property) and shall
contain no exceptions for coverage other than for Liens which the Agent
reasonably determines are permitted liens; and
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(c) form one or more Unrestricted Subsidiaries, so long as the
Principal Companies shall have complied with the provisions of Section 1.3.
Section 9.4. Investments. Make or suffer to exist or to remain
outstanding any Investment, except:
(a) Investments in:
(i) marketable direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by,
the United States (or by any agency thereof to the extent such
obligations are backed by the full faith and credit of the United
States), in each case maturing within 90 days from the date of
acquisition thereof;
(ii) securities commonly known as "commercial paper" issued by
a corporation organized and existing under the laws of the United
States or any state thereof maturing within 90 days from the date of
acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from Standard & Poor's Corporation or
from Xxxxx'x Investors Service, Inc.;
(iii) certificates of deposit, banker's acceptances and time
deposits maturing within 90 days from the date of acquisition thereof
issued or guaranteed by or placed with, and demand deposit accounts or
money market deposit accounts issued or offered by, any commercial bank
organized under the laws of the United States of America or any state
thereof, but only so long as such commercial bank is a Lender or has a
combined capital and surplus and undivided profits of not less than
$500,000,000, or has a credit rating of "A" or better from Standard &
Poor's Corporation or from Xxxxx'x Investors Service, Inc.;
(iv) marketable direct obligations of any state of the United
States or any political subdivision thereof maturing within 90 days
from the date of acquisition thereof and having a credit rating of "A"
or better from Standard & Poor's Corporation or from Xxxxx'x Investors
Service, Inc.; and
(v) Fleet's Galaxy money market fund and in other overnight
investments customarily provided by Fleet to its corporate customers;
and
(b) Investments in the form of loans to employees of the Principal
Companies (other than Christian), provided that the outstanding principal amount
of all such loans to any one employee shall at no time exceed $100,000 and that
the aggregate outstanding principal amount of all such loans shall at no time
exceed $300,000, and no such loan shall be made if, on the date of the proposed
loan, any Default or Event of Default exists or would exist after giving effect
to the making of any such loan;
(c) Investments of any Principal Company in any other Principal
Company;
(d) Permitted Acquisitions;
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(e) Investments consisting of loans evidenced by the Christian Note and
interest accrued thereon;
(f) Investments in the form of deposits securing performance of any
Principal Company's obligations in connection with a Permitted Acquisition;
(g) Investments in the form of promissory notes issued to any Principal
Company in a sale of Assets permitted by Section 9.3(a)(iii) representing the
non-cash portion of the consideration received by the Principal Companies
pursuant to such sale; provided that such notes are delivered in pledge to the
Collateral Trustee pursuant to the applicable Security Documents;
(h) Investments described in Schedule 9.4 hereto; and
(i) Investments (including Investments in Unrestricted Subsidiaries)
not otherwise permitted by any of paragraphs (a) through (h) above in the
Capital Stock of any Person that owns and operates as its principal business one
or more Communications Systems or other businesses reasonably related to the
radio or television business, provided, however, that (i) the aggregate amount
of such Investments by the Principal Companies from and after the Effective Date
shall not exceed $10,000,000 (it being understood and agreed that the
designation by the Borrower of a Subsidiary as an Unrestricted Subsidiary
pursuant to Section 1.3 shall be deemed an Investment by the Borrower (or by one
of its Restricted Subsidiaries which is the direct parent of such Unrestricted
Subsidiary) in such Unrestricted Subsidiary at the time of such designation in
an amount equal to the aggregate amount of Investments previously made by the
Borrower and its Restricted Subsidiary in such Subsidiary prior to its
designation as an Unrestricted Subsidiary); (ii) at the time of such Investment
and after giving effect thereto, no Default or Event of Default shall have
occurred and be continuing; and (iii) the Borrower shall have demonstrated to
the reasonable satisfaction of the Agent (based on, among other things,
operating and financial projections and pro forma financial statements delivered
to the Agent and certified by the Chief Operating Officer) that, immediately
after giving effect to such Investment (including any such designation), all
covenants (including all covenants contained in Article X hereof) contained
herein (A) would have been satisfied on a pro forma basis as at the end of and
for the Most Recent Reference Period had such Investment been made on the first
day of the Most Recent Reference Period (or had such Subsidiary been an
Unrestricted Subsidiary at all times during such period), and (B) will be
satisfied on a pro forma basis through the period ending two years after the
date of such Investment (including any such designation).
The aggregate amount of an Investment described in paragraph (i) above
in any Person at any time (x) shall be equal to the aggregate amount of all
cash, plus the aggregate fair market value of all Assets, loaned, advanced,
contributed or transferred to, or otherwise invested in, such Person, and (y)
shall not be reduced by reason of any write-down or write-off of such Investment
or by reason of any dividends, distributions or payments received by any
Principal Company in respect of such Investment.
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Section 9.5. Restricted Payments. Make any Restricted Payments, other
than:
(a) payments of cash dividends, making of advances, and repayment of
advances, in each case by any Restricted Subsidiary of the Borrower to the
parent of such Restricted Subsidiary which is also a Restricted Subsidiary;
(b) if no Default or Event of Default is continuing or would exist
after giving effect thereto, the Borrower may prepay Indebtedness for Borrowed
Money and Capitalized Lease Obligations permitted by Section 9.1(c) and secured
by Liens permitted by Section 9.2(d); and
(c) payments by the Borrower to stockholders of the Borrower in an
aggregate amount not to exceed $15,000,000 (from and after the Effective Date)
to repurchase shares of Class A Common Stock of the Borrower; provided that, (i)
no Default or Event of Default shall be continuing on the date of the proposed
payment or would result from such payment, and (ii) prior to such repurchase,
the Borrower shall have demonstrated to the reasonable satisfaction of the Agent
(based on, among other things, operating and financial projections and pro forma
financial statements delivered to the Agent and certified by the Chief Financial
Officer) that, immediately after giving effect to such repurchase (including the
making of any Loans and the incurrence of any Indebtedness required to finance
such repurchase), all covenants (including all covenants contained in Article X
hereof) contained herein (A) would be satisfied on a pro forma basis through the
end of and for the Most Recent Reference Period, and (B) will be satisfied on a
pro forma basis through the period ending two years after the date of such
repurchase; and provided further, that the Borrower shall immediately retire any
shares of its Class A Common Stock so repurchased.
Section 9.6.Issuance of Capital Stock. Issue any Capital Stock if (i)
such Capital Stock is not Permitted Capital Stock or (ii) the issuance of such
Capital Stock, or the exercise or conversion thereof, would result in a Change
in Control.
Section 9.7. Sale and Leaseback. Enter into any arrangement, directly
or indirectly, with any Person providing for the leasing by any Principal
Company of real or personal property which has been or is to be sold or
transferred by any Principal Company.
Section 9.8. ERISA Compliance.
(a) Engage or permit any of its Subsidiaries to engage in any
"prohibited transaction" within the meaning of Section 406 of ERISA or
Section 4975 of the Code which is not subject to an exemption under Section 408
of ERISA or Section 4975(d) of the Code and which could result in a material
liability for any Principal Company.
(b) Permit or allow any of its Subsidiaries to permit any Guaranteed
Pension Plan to incur an "accumulated funding deficiency", as such term is
defined in Section 302 of ERISA, whether or not such deficiency is or may be
waived.
(c) Fail to contribute or permit any of its Subsidiaries to fail to
contribute to any Guaranteed Pension Plan to an extent which, or terminate or
permit any of its Subsidiaries to terminate any Guaranteed Pension Plan in a
manner which, could result in the
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imposition of a lien or encumbrance on the assets of any Principal Company or
any of its Subsidiaries pursuant to Section 302(f) or Section 4068 of ERISA.
(d) Permit or take any action which would result in the aggregate
benefit liabilities (with the meaning of Section 4001 of ERISA) of all
Guaranteed Pension Plans exceeding the value of the aggregate assets of such
Plans, disregarding for this purpose the benefit liabilities and assets of
any such Plan with assets in excess of benefit liabilities, by more than
$100,000.
Section 9.9. Amendment or Termination of Documents.
(a) Amend or supplement any Governing Documents of any Principal
Company if the effect of such an amendment or supplementation could reasonably
be expected to impair the rights or interests of the Agent, the Collateral
Trustee or the Lenders under the Loan Documents.
(b) Amend or supplement in any material respect or terminate or cancel
any Ancillary Document (other than any Seller Debt Document) if the effect of
such an amendment or supplementation could reasonably be expected to impair the
rights or interests of the Agent, the Collateral Trustee and the Lenders under
the Loan Documents.
(c) Amend, supplement or otherwise modify in any respect any
Subordinated Debt Document if such amendment or supplementation would (i) add
any representation, covenant or agreement or event of default or make any
representation, covenant or agreement or event of default more restrictive as to
any Principal Company, (ii) alter any applicable subordination provisions, (iii)
require any additional payment or prepayment of any principal, interest, fee or
other amount, (iv) shorten the maturity or increase the rate or amount or the
frequency of payment of any principal, interest, fee or other amount, or (v)
grant any Lien to any holder of any obligation under or in respect of any
Subordinated Debt Documents. The Principal Companies will promptly provide to
the Agent a copy of any amendment, supplement or modification whether or not
such amendment, supplement or modification shall have required the consent of
the Required Lenders.
(d) Waive, release, discharge or compromise any material obligations of
any parties other than Principal Companies under any Ancillary Documents.
Section 9.10. Restrictive Agreements. Become or remain bound by any
Contractual Obligation (other than the Loan Documents) which, directly or
indirectly, prohibits or limits, or has the effect of prohibiting or limiting,
or imposes materially adverse conditions on, (i) the incurrence of Indebtedness,
the granting of Liens or the provision of Guaranties by any Principal Company,
or (ii) the making of Distributions by any Restricted Subsidiary of the
Borrower.
Section 9.11. Transactions with Affiliates. Except as otherwise
expressly permitted by this Agreement, directly or indirectly (i) make any
Investment in any Affiliate, (ii) sell, lease or otherwise dispose of any Assets
or services to, or purchase, lease or otherwise acquire any Assets or services
from, any Affiliate, or (iii) directly or indirectly engage in any other
transaction with or for the benefit of, or make any payment or distribution to,
any Affiliate; provided, that: (i) any employee (or former employee) of the
Borrower owning any
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Common Stock may serve as an employee or director of any Principal Company and
receive reasonable compensation for his services in such capacity, (ii) the
Principal Companies may perform all their respective obligations under the
Ancillary Documents in accordance with the terms thereof, and (iii) so long as
no Default or Event of Default is continuing, any Principal Company may enter
into any transaction with an Affiliate providing for the rendering or receipt of
services or the purchase, sale or lease of assets in the ordinary course of
business if the monetary or business consideration arising therefrom would be
substantially as advantageous to such Principal Company as the monetary or
business consideration which would obtain in a comparable arm's length
transaction with a Person not an Affiliate, and such transaction is accurately
reflected on the books of such Principal Company and specifically disclosed in
writing to the Agent.
ARTICLE X
FINANCIAL COVENANTS
The Borrower agrees with the Agent and each Lender that, until all
Commitments have been terminated, all Letters of Credit have been fully drawn or
have terminated or expired and all Obligations have been paid in cash in full,
the Borrower will not cause or permit:
Section 10.1. Maximum Total Funded Debt Leverage Ratio. The Total
Funded Debt Leverage Ratio (as defined below) for any Reference Period ending
during any period identified in the table below to be greater than the ratio
specified in such table opposite such period:
Maximum Total Funded
Period Debt Leverage Ratio
Effective Date - 9/29/01 5.25:1
9/30/01 - 12/30/01 5.00:1
12/31/01 - 12/30/02 4.50:1
12/31/02 - 12/30/03 4.00:1
12/31/03 - 12/30/04 3.75:1
12/31/04 - thereafter 3.50:1
As used in this Section 10.1, "Total Funded Debt Leverage Ratio" means, in
relation to any Reference Period, the ratio of (i) Consolidated Total Funded
Debt at the end of such Reference Period (net of the outstanding balance at such
time of any Net Proceeds deposited in the Reinvestment Collateral Account
pursuant to Subsection 2.5(f)(i)(x)(i) and then held by the Collateral Trustee
pending application to a Permitted Acquisition or as provided in Subsection
2.5(h)(i)) to (ii) Consolidated EBITDA for such Reference Period.
Section 10.2. Pro Forma Fixed Charges Coverage Ratio. The Pro Forma
Fixed Charges Coverage Ratio (as defined below) for any Reference Period to be
less than 1.10:1. As used in this Section 10.2, "Pro Forma Fixed Charges
Coverage Ratio" means, in relation to any Reference Period, the ratio of (i)
Consolidated EBITDA for such Reference Period to (ii) Pro Forma Fixed Charges
for such Reference Period.
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Section 10.3. Minimum Interest Coverage Ratio. The Interest Coverage
Ratio (as defined below), for any Reference Period ending during any period
identified in the table below to be less than the ratio specified in such table
opposite such period:
Minimum Interest
Period Coverage Ratio
Effective Date - 9/29/01 2.75:1
09/30/01 - 3/31/02 3.00:1
4/01/02 - thereafter 3.25:1
As used in this Section 10.3, "Interest Coverage Ratio" means, in relation to
any Reference Period, the ratio of (i) Consolidated EBITDA for such Reference
Period to (ii) Consolidated Total Interest Expense for such Reference Period.
Section 10.4. General Provisions Relating to Financial Terms and
Covenants. In the event the Borrower or any of its Subsidiaries acquires or
disposes of any Communications System or other business, the following
adjustments shall be made:
(a) Consolidated EBITDA. In determining Consolidated EBITDA for any
period, there shall be (i) included in such Consolidated EBITDA all EBITDA
attributable to any Communications System or other business acquired by (and
thereafter owned by) the Borrower or any Restricted Subsidiary during such
period as if such Communications System or other business had been acquired on
the day before the first day of such period and (ii) excluded from such
Consolidated EBITDA all EBITDA attributable to any Communications System or
other business disposed of by the Borrower or any Restricted Subsidiary during
such period as if such Communications System or other business were disposed of
on the day before the first day of such period. For purposes hereof, the EBITDA
attributable to any such acquired or disposed Communications System or other
business prior to the date of acquisition or disposition thereof shall be
determined in a manner consistent with the method for determining Consolidated
EBITDA, but on a non-consolidated basis (subject to any adjustments made
pursuant to paragraph (c) below).
(b) Consolidated Total Interest Expense. In determining Consolidated
Total Interest Expense for any period, there shall be (i) included all
Consolidated Total Interest Expense attributable to Indebtedness incurred or
assumed by the Borrower or any Restricted Subsidiaries during such period in
connection with any Permitted Acquisition as if such Indebtedness was incurred
or assumed on the day before the first day of such period and (ii) excluded all
Consolidated Total Interest Expense attributable to that portion of the
principal amount of the Loans prepaid during such period with Net Proceeds
pursuant to Section 2.5(f) as if such portion of the principal amount of the
Loans was prepaid on the day before the first day of such period.
(c) Additional Adjustments. For purposes of this Section 10.4, the
EBITDA attributable to any Communications System or other business acquired or
disposed of by the Borrower or any of its Restricted Subsidiaries during any
period may be adjusted to more accurately reflect the financial condition and
results of operations of the acquired Communications System or other business
after giving effect to the acquisition as mutually
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determined and agreed to by the Borrower and the Required Lenders. The Borrower
and the Required Lenders shall each use good faith efforts to mutually determine
and agree to any such adjustments. It is understood and agreed, however, that
the Required Lenders shall have no liability for failing to agree to any such
adjustments. In the case of an Acquisition by the Borrower or any of its
Restricted Subsidiaries, such adjustments may reflect any cost savings (but not
revenue enhancements) that would have been achieved if such business had been
owned by the Borrower or one of its Restricted Subsidiaries for the entire
relevant period, including adjustments for excess owner's compensation, excess
rent paid to related parties, directors' fees paid to related parties and
workmen's compensation and other insurance expense in excess of that which would
have been incurred under policies of the Borrower and its Restricted
Subsidiaries existing at the time of such Acquisition.
ARTICLE XI
EVENTS OF DEFAULT; ACCELERATION
Section 11.1. Events of Default. The occurrence of any one or more of
the following events or conditions shall constitute an "Event of Default":
(a) the Borrower shall fail to make any payment or mandatory prepayment
of principal on any Note or to reimburse the Issuing Bank for any Letter of
Credit Disbursement when and as the same becomes due and payable; or
(b) the Borrower shall fail to pay any interest on any Loan or Letter
of Credit Disbursement or any Fee or any other amount (other than an amount
referred to in paragraph (a) above) when and as the same shall become due and
payable, and such default shall continue unremedied for three (3) Business Days;
or
(c) any Principal Company shall fail to perform or observe any of its
agreements contained in Section 8.14, Articles IX or X hereof; or
(d) any Principal Company shall fail to perform or observe any of its
agreements in any of the Loan Documents (other than those specified in
paragraphs (a), (b) or (c) above) and such failure shall remain unremedied upon
the earlier to occur of thirty (30) days after any executive officer of the
Borrower shall know thereof and thirty (30) days after notice thereof shall have
been given to the Borrower by the Agent; or
(e) (i) any Principal Company shall fail to pay any principal, interest
or other amounts due in respect of any Indebtedness for Borrowed Money and the
aggregate amount not paid when due, together with other such amounts not paid
when due by any Principal Companies, exceeds $1,000,000; or (ii) Indebtedness
for Borrowed Money of any Principal Company is accelerated or otherwise becomes
due and payable prior to its stated maturity and the aggregate amount
accelerated or otherwise due and payable, together with other such amounts of
any Principal Companies accelerated or otherwise due and payable, exceeds
$1,000,000; or (iii) any holder or holders (or any agent or trustee for any such
holder or holders) of Indebtedness for Borrowed Money of any Borrower Affiliated
Company take any legal proceeding against any Principal Company to collect such
Indebtedness or to
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seek possession of any portion of the Collateral by any means or to enforce any
provision of any agreement or instrument evidencing or governing Indebtedness
for Borrowed Money of the Principal Companies and such Indebtedness, together
with other such Indebtedness of any Principal Companies with respect to which
such legal proceedings have been taken, exceeds $1,000,000; or
(f) any representation or warranty made or deemed made by or on behalf
of any Principal Company in or in connection with any Loan Document or in any
report, certificate, financial statement or other instrument furnished in
connection with or pursuant to any Loan Document shall prove to have been false
or misleading in any material respect when made or deemed made; or
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of any Principal Company or of a substantial part of the Assets of
any Principal Company under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other Federal, state or foreign
bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for
any Principal Company or for a substantial part of the property or assets of any
Principal Company or (iii) the winding-up or liquidation of any Principal
Company; and such proceeding or petition shall continue undismissed for sixty
(60) days or an order or decree approving or ordering any of the foregoing shall
be entered; or
(h) any Principal Company shall (i) voluntarily commence any proceeding
or file any petition seeking relief under Title 11 of the United States Code, as
now constituted or hereafter amended, or any other Federal, state or foreign
bankruptcy, insolvency, receivership or similar law, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in (g) above, (iii) apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for any Principal Company or for a substantial
part of the Assets of any Principal Company, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v)
make a general assignment for the benefit of creditors, (vi) become unable or
admit in writing its inability or fail generally to pay its debts as they become
due or (vii) take any action for the purpose of effecting any of the foregoing;
or
(i) one or more judgments for the payment of money shall be rendered
against any Principal Company which, together with other such judgments against
any Principal Companies, exceed $1,000,000, and the same shall remain
undischarged, unsatisfied or unstayed or a bond sufficient to cover such
judgment shall not have been provided by the Borrower for a period of thirty
(30) consecutive days, or any action shall be legally taken by a judgment
creditor to levy upon Assets or properties of any Principal Company to enforce
any such judgment; or
(j) any Principal Company or any ERISA Affiliate incurs any liability
to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an
aggregate amount which, together with other such liabilities of the Principal
Companies and their ERISA Affiliates, exceeds $1,000,000; any Principal Company
shall fail to make required contributions, in accordance with applicable
provisions of ERISA, to each of the Plans; any
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Principal Company or any ERISA Affiliate is assessed withdrawal liability
pursuant to Title IV of ERISA by a Multiemployer Plan in an aggregate amount
which, together with other such assessed withdrawal liabilities of any Principal
Companies or ERISA Affiliates, exceeds $1,000,000; or any of the following
occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event,
provided that the Required Lenders determine in their reasonable discretion that
such event reasonably could be expected to result in liability of the Principal
Companies to the PBGC or the Plan in an aggregate amount, together with other
such liabilities of the Principal Companies, exceeds $1,000,000 and such event
or events in the circumstances occurring reasonably could constitute grounds for
the termination of such Plan by the PBGC or for the appointment by the
appropriate United States District Court of a trustee to administer such Plan;
(ii) the appointment by a United States District Court of a trustee to
administer such Plan; or (iii) the institution by the PBGC of proceedings to
terminate such Plan; or
(k) any Liens granted to the Collateral Trustee for the benefit of the
Agent and the Lenders under the Security Documents on any material portion of
the Collateral shall fail to be a valid, perfected Lien, subject to no prior or
equal Lien, except as permitted by Section 9.2, or shall become otherwise
impaired or unenforceable in any material respect; or
(l) the loss, revocation or failure to file for renewal of any FCC
License; the commencement of proceedings by the FCC to suspend, revoke,
terminate or substantially and adversely modify any FCC License, which
proceedings are resolved unfavorably to the applicable Principal Company and
which resolution shall be Final; or the designation of an application for
renewal of any such FCC License for an evidentiary hearing upon issues related
to the basic qualifications of the applicable Principal Company to be an FCC
licensee which hearing is resolved unfavorably to such Principal Company and
which resolution shall be Final, which FCC License is now held or hereafter
acquired by such Principal Company and is necessary for the continued operation
of such Principal Company's business in the same manner as is being conducted at
the time of such loss, revocation, failure to renew, commencement of proceedings
or designation for hearing; or
(m) there shall have occurred a Change in Control; or
(n) any Governmental Authority shall (i) enter a judgment, order or
decree requiring any Principal Company to divest itself of all or any
substantial part of its property or Assets, or (ii) take any action of any kind
whatever for the dissolution of any Principal Company or for the suspension of
any material operations of any Principal Company; or
(o) (i) a creditor of any Borrower Affiliated Company shall obtain
possession of any substantial and material portion of the Collateral by any
means, including levy, distraint, replevin or self-help; or (ii) any material
portion of the Collateral shall be taken by eminent domain or condemnation; or
(iii) a material provision of any of the Loan Documents shall cease for any
reason to be in full force and effect other than pursuant to the terms of the
Loan Documents or as a result of a waiver or amendment by the Lenders or the
Required Lenders, as applicable, or any Principal Company party thereto shall
purport to disavow its material obligations thereunder or shall declare that it
does not have any further obligation thereunder or shall contest the validity or
enforceability thereof.
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Section 11.2. Termination of Commitments; Acceleration of Obligations.
If any one or more Events of Default shall at any time occur (other than an
Event of Default described in Sections 11.1(g) or 11.1(h)):
(a) the Agent may and, at the request of the Required Lenders, shall,
by written notice to the Borrower, take any or all of the following actions, at
the same or different times: (i) terminate forthwith all the Commitments or (ii)
declare the Loans then outstanding to be forthwith due and payable in whole or
in part, whereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Principal Companies accrued hereunder and under any other
Loan Document, shall become forthwith due and payable without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by the Principal Companies, anything contained herein or in any
other Loan Document to the contrary notwithstanding; and if any one or more
Events of Default described in Sections 11.1(g) or 11.1(h) above shall at any
time occur, the Commitments shall automatically terminate and the principal of
the Loans then outstanding, together with accrued interest thereon and any
unpaid accrued Fees and all other liabilities of the Principal Companies accrued
hereunder and under any other Loan Document, shall automatically become due and
payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by the Principal Companies, anything
contained herein or in any other Loan Document to the contrary notwithstanding.
(b) Subject to the provisions of Article XII hereof, each of the
Lenders, the Agent and the Collateral Trustee may proceed to protect and enforce
all or any of its rights, remedies, powers and privileges under this Agreement,
the Notes or the other Loan Documents by action at law, suit in equity or other
appropriate proceedings, whether for specific performance of any covenant
contained in this Agreement, the Notes or any of the other Loan Documents or in
aid of the exercise of any power granted to the Agent, the Collateral Trustee or
any Lender herein or therein. Neither the Agent, the Lenders nor the Collateral
Trustee shall be required to xxxxxxxx any present or future Collateral or any
other present or future security for or guaranties of, all or any of the
Obligations or to resort to any such Collateral, securities or guaranties in any
particular order.
Section 11.3. No Implied Waivers; Rights Cumulative. No delay on the
part of the Collateral Trustee, the Agent, the Issuing Bank or any Lender in
exercising any right, remedy, power or privilege under any of the Loan Documents
or provided by statute or at law or in equity or otherwise shall impair,
prejudice or constitute a waiver of any such right, remedy, power or privilege
or be construed as a waiver of any Default or Event of Default or as an
acquiescence therein. No right, remedy, power or privilege conferred on or
reserved to the Collateral Trustee, the Agent, the Issuing Bank or any Lender
under any of the Loan Documents or otherwise is intended to be exclusive of any
other right, remedy, power or privilege. Each and every right, remedy, power and
privilege conferred on or reserved to the Collateral Trustee, the Agent, the
Issuing Bank or any Lender under any of the Loan Documents or otherwise shall be
cumulative and in addition to each and every other right, remedy, power or
privilege so conferred on or reserved to the Collateral Trustee, the Agent, the
Issuing Bank or any Lender and may be exercised at such time or times and in
such order and manner as the Collateral Trustee, the Agent, the Issuing Bank or
any Lender shall (in its sole and complete discretion) deem expedient.
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Section 11.4. Letters of Credit. If any one or more Events of Default
shall at any time occur (other than an Event of Default described in Section
11.1(g) or 11.1(h)) the Agent may and, at the request of the Required Lenders,
shall, by written notice to the Borrower, take any or all of the following
actions, at the same or different times:
(a) declare all obligations of the Borrower under any outstanding
Letter of Credit, all the unpaid interest accrued thereon and all (if any) other
sums payable by the Borrower under Article III of this Agreement, to be
immediately due and payable;
(b) send notices to all or any of the beneficiaries of the Letters of
Credit advising such beneficiaries of the intention and desire of the Agent, to
effect the termination, cancellation and surrender of such Letters of Credit in
thirty (30) days, provided, however, that the Agent shall not send any such
notice to any beneficiary unless the Agent has requested that the Principal
Companies deliver cash collateral to the Agent pursuant to paragraph (c) below
and the Principal Companies have failed to deliver such cash collateral to the
Agent within ten (10) days of such request; and
(c) require that the Borrower deliver to the Agent, on behalf of the
Issuing Bank, cash collateral in an amount equal to the face amount of all
Letters of Credit which remain outstanding; and if any one or more Events of
Default described in Sections 11.1(g) or 11.1(h) shall occur, then (i) all of
the obligations of the Borrower under any outstanding Letter of Credit
Disbursement, together with accrued interest thereon and all (if any) other sums
payable by the Borrower under Article III of this Agreement, shall automatically
become due and payable, without presentment, demand, protest or any other notice
of any kind, all of which are hereby expressly waived by the Principal
Companies, anything contained herein or in any other Loan Document to the
contrary notwithstanding and (ii) the Agent may take any or all of the actions
set forth in clauses (b) and (c) of this Section 11.4.
ARTICLE XII
THE AGENT
Section 12.1. Appointment, Powers and Immunities. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent hereunder and
under the other Loan Documents (excluding the Security Documents) with such
powers as are specifically delegated to the Agent by the terms of this Agreement
and such other Loan Documents together with such other powers as are reasonably
incidental thereto. The Agent shall have no duties or responsibilities except
those expressly set forth in this Agreement and the other Loan Documents and
shall not be a trustee for any Lender. The Agent shall not be responsible to the
Lenders for any recitals, statements, representations or warranties contained in
this Agreement or the other Loan Documents or in any certificate or other
documents referred to or provided for in, or received by any of them under, this
Agreement or the other Loan Documents, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
the other Loan Documents or any other document referred to or provided for
herein or therein or for the collectability of the Loans or for the validity,
effectiveness or value of any interest or
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security covered by the Security Documents or for the value of any Collateral or
for the validity or effectiveness of any assignment, mortgage, pledge, security
agreement, financing statement, document or instrument, or for the filing,
recording, re-filing, continuing or re-recording of any thereof or for any
failure by the Borrower or any of the other Borrower Affiliated Companies to
perform any of its obligations hereunder or under the other Loan Documents. The
Agent may employ agents and attorneys-in-fact and shall not be answerable,
except as to money or securities received by it or its authorized agents, for
the negligence or misconduct of any such agents or attorneys-in-fact selected by
it with reasonable care. Neither the Agent nor any of its directors, officers,
employees or agents shall be liable or responsible for any action taken or
omitted to be taken by it or them hereunder, or the other Loan Documents or in
connection herewith or therewith, except for its or their own gross negligence
or willful misconduct.
Section 12.2. Reliance by Agent. The Agent shall be entitled to rely
upon any certification, notice or other communication (including any thereof by
telephone, telex, telegram or cable) believed by it to be genuine and correct
and to have been signed or sent by or on behalf of the proper person or persons,
and upon advice and statements of legal counsel, independent accountants and
other experts selected by the Agent. As to any matters not expressly provided
for by this Agreement or the other Loan Documents, the Agent shall in all cases
be fully protected in acting, or in refraining from acting hereunder or under
the other Loan Documents in accordance with instructions signed by the Required
Lenders, and such instructions of the Required Lenders and any action taken or
failure to act pursuant thereto shall be binding on all of the Lenders.
Section 12.3. Events of Default. The Agent shall not be deemed to have
knowledge of the occurrence of a Default (other than the non-payment of
principal, interest or fees on Loans) unless the Agent has received notice from
a Lender or the Borrower specifying such Default and stating that such notice is
a "Notice of Default". In the event that the Agent receives such a notice of the
occurrence of a Default, the Agent shall give prompt notice thereof to the
Lenders (and shall give each Lender notice of each such non-payment). The Agent
shall (subject to Section 12.7) take such action with respect to such Default as
shall be directed by either all of the Lenders or the Required Lenders, as
provided in Section 13.4.
Section 12.4. Rights as a Lender. The Agent and its Affiliates may
(without having to account therefor to any Lender) accept deposits from, lend
money to and generally engage in any kind of banking, trust or other business
with the Borrower Affiliated Companies or their Affiliates, as if it were not
acting as the Agent, and the Agent may accept fees and other consideration from
the Principal Companies or their Affiliates, for services in connection with
this Agreement or any of the other Loan Documents or otherwise without having to
account for the same to the Lenders.
Section 12.5. Indemnification. The Lenders shall indemnify the Agent
(to the extent not reimbursed by the Principal Companies under Sections 13.1 and
13.2), ratably in accordance with the aggregate principal amount of the
outstanding Loans made by the Lenders (or, if no Loans are at the time
outstanding, ratably in accordance with their respective Commitments), for any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements or any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the Agent in
any way
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relating to or arising out of this Agreement or any of the other Loan Documents
or any other documents contemplated by or referred to herein or therein or the
transactions contemplated by or referred to herein or therein or the
transactions contemplated hereby and thereby (including the costs and expenses
which the Principal Companies are obligated to pay under Sections 13.1 and 13.2,
but excluding, unless a Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof, 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 the party to be indemnified.
Section 12.6. Non-Reliance on Agent and Other Lenders. Each Lender
agrees that it has, independently and without reliance on the Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Principal Companies and
decision to enter into this Agreement and that it will, independently and
without reliance upon the Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own analysis and decisions in taking or not taking action under this Agreement
or the other Loan Documents. The Agent shall not be required to keep itself
informed as to the performance or observance by the Principal Companies of this
Agreement or the other Loan Documents or any other document referred to or
provided for herein or therein or to inspect the properties or books of the
Principal Companies. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the Agent
hereunder or the other Loan Documents, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of the Principal
Companies, which may come into the possession of the Agent or any of its
Affiliates.
Section 12.7. Failure to Act. Except for action expressly required of
the Agent hereunder, the Agent shall in all cases be fully justified in failing
or refusing to act hereunder or thereunder unless it shall be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
Section 12.8. Resignation or Removal of Agent. Subject to the
appointment and acceptance of a successor Agent as provided below, the Agent may
resign at any time by giving not less than thirty (30) days' prior written
notice thereof to the Lenders and the Principal Companies and the Agent may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders and shall have accepted such appointment within thirty (30)
days after the retiring Agent's giving of notice of resignation or the Required
Lenders' removal of the retiring Agent, then the retiring Agent may, on behalf
of the Lenders, after consultation with the Principal Companies, appoint a
successor Agent which shall be one of the Lenders. 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 its duties and obligations hereunder. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article XII
shall continue
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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.
Section 12.9. Sharing of Collateral and Payments.
(a) Prior to any acceleration of the Obligations:
(i) in the event that any Lender shall obtain payment in
respect of a Note or a Letter of Credit Disbursement, or interest
thereon, whether voluntarily or involuntarily, and whether through the
exercise of a right of banker's lien, set-off or counterclaim against
any Principal Company or otherwise, in a greater proportion than any
such payment obtained by any other Lender in respect of the
corresponding Note held by it or the share of any Letter of Credit
Disbursement owed to it, then the Lender so receiving such greater
proportionate payment shall (A) purchase for cash from such other
Lender or Lenders such portion of each such other Lender's or Lenders'
Loan corresponding to such Note or (B) reimburse for cash to such other
Lender or Lenders such portion of each such Lender's or Lenders' share
of the Letter of Credit Disbursement, as shall be necessary to cause
such Lender receiving the proportionate overpayment to share the excess
payment with each such other Lender holding corresponding Notes or
Letter of Credit Disbursements; and
(ii) in the event that any Lender shall obtain payment in
respect of any Interest Rate Contract to which such Lender is a party,
whether voluntarily or involuntarily, and whether through the exercise
of a right of banker's lien, set-off or counterclaim against any
Principal Company or otherwise, such Lender shall be permitted to
retain the full amount of such payment and shall not be required to
share such payment with any other Lender.
(b) Upon or following any acceleration of the Obligations, in the event
that any Lender shall obtain payment in respect of a Note or Letter of Credit
Disbursement, or interest thereon, or in respect of an Interest Rate Contract to
which such Lender is a party, or receive any Collateral or proceeds thereof with
respect to any Note, Letter of Credit Disbursement or any Interest Rate Contract
to which it is a party, whether voluntarily or involuntarily, and whether from
the Agent or the Collateral Trustee or through the exercise of a right or
banker's lien, set-off or counterclaim, or otherwise, against any of the
Principal Companies, in a greater proportion than any such payment obtained by
any other Lender in respect of the aggregate amount of the corresponding Note
held by such Lender, the share of any Letter of Credit Disbursement owed to it
or Interest Rate Contract to which such Lender is a party, then the Lender so
receiving such greater proportionate payment or such greater proportionate
amount of Collateral, shall purchase for cash from the other Lender or Lenders
such portion or each such other Lender's or Lenders' Loan, or shall reimburse
for cash to each Lender or Lenders such portion of each such Lender's or
Lenders' share of the Letter of Credit Disbursement, or shall provide the other
Lenders with the benefits of any such Collateral as shall be necessary to cause
such Lender receiving the proportionate overpayment to share the excess payment
or benefits of such Collateral ratably with each Lender. For the purposes of
this Subsection 12.9(b), payments in respect of Notes or Letter of Credit
Disbursements or in respect of an Interest Rate Contract received by each Lender
and receipt of Collateral by each Lender shall be in the same proportion as the
proportion
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of: (A) the sum of: (x) the Obligations owing to such Lender in respect of the
Notes held by such Lender, plus (y) the Obligations owing to such Lender in
respect of Interest Rate Contracts to which such Lender is party, if any, plus
(z) the Obligations owing to such Lender in respect of its share of any Letter
of Credit Disbursement, if any, to (B) the sum of: (x) the Obligations owing to
all of the Lenders in respect of all of the Notes, plus (y) the Obligations
owing to all of the Lenders in respect of all Interest Rate Contracts to which
any Lender is a party, plus (z) the Obligations owing to all of the Lenders in
respect of all Letters of Credit Disbursements outstanding; provided, however,
that, with respect to Subsections 12.9(a)(i) and (b) above, if all or any
portion of such excess payment or benefits is thereafter recovered from the
Lender which received the proportionate overpayment, such purchase of Loans,
reimbursement of Letter of Credit Disbursements or payment of benefits, as the
case may be, shall be rescinded, and the purchase price, reimbursements and
benefits returned, to the extent of such recovery, but without interest.
Section 12.10. Obligations and Duties of Syndication Agent. The Bank of
New York, in its capacity as the Syndication Agent, shall not have any duties or
responsibilities, under this Agreement or any other Loan Document.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1. Fees and Expenses; Indemnity. The Principal Companies
will promptly pay all reasonable costs of the Agent and the Arranger (including
reasonable fees and disbursements of the Agent's Special Counsel incurred by
Agent) in connection with (a) structuring and syndicating the Facilities, (b)
preparing, reviewing, negotiating, executing and delivering the Loan Documents,
(c) the issuance of any of the Notes, (d) reviewing the Ancillary Documents, (e)
the Borrower's and the other Principal Companies' performance of and compliance
with all agreements and conditions contained herein on its part to be performed
or complied with (including all costs of filing or recording any assignments,
mortgages, financing statements and other documents), (f) the administration,
interpretation and enforcement of this Agreement, the other Loan Documents and
all other agreements, instruments and documents relating to the Transaction and
the consummation of the transactions contemplated by all such documents, and the
preservation of all rights of the Lenders and the Agent hereunder and
thereunder, (g) the negotiation, preparation, execution and delivery of any
amendment, modification or supplement of or to, or any consent or waiver under,
any such document (or any such instrument which is proposed but not executed and
delivered) and (h) any claim or action threatened, made or brought against any
of the Lenders or the Agent arising out of or relating to any extent to this
Agreement, the other Loan Documents or the transactions contemplated hereby or
thereby. In addition, the Principal Companies will promptly pay all reasonable
costs and expenses (including reasonable fees and disbursements of counsel)
suffered or incurred by the Agent, each Lender and the Collateral Trustee in
connection with its enforcement of the payment of the Notes held by it or any
other sum due to it under this Agreement or any of the other Loan Documents or
any of its other rights hereunder or thereunder. In addition to the foregoing,
the Principal Companies shall indemnify each Lender, the Agent and the
Collateral Trustee and each of their respective directors, officers, employees,
attorneys and agents against, and hold each of them harmless from, any loss,
liabilities, damages, claims,
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costs and expenses (including reasonable attorneys' fees and disbursements)
suffered or incurred by any of them arising out of, resulting from or in any
manner connected with, the execution, delivery and performance of each of the
Loan Documents, the Loans, the Letters of Credit and any and all transactions
related to or consummated in connection with the Loans or the Letters of Credit.
The indemnity set forth in the immediately preceding sentence shall include any
losses, liabilities, damages, claims, costs and expenses suffered or incurred by
any Lender, the Agent or the Collateral Trustee or any of their respective
directors, officers, employees, attorneys or agents arising out of or related to
any Environmental Matter, Environmental Liability or Environmental Proceeding,
or in investigating, preparing for, defending against, or providing evidence,
producing documents or taking any other action in respect of any commenced or
threatened litigation, administrative proceeding or investigation under any
federal securities law or any other statute of any jurisdiction, or any
regulation, or at common law or otherwise, which is alleged to arise out of or
is based upon: (i) any untrue statement or alleged untrue statement of any
material fact of any Principal Company and any of its affiliates in any document
or schedule filed with the Securities and Exchange Commission or any other
governmental body; (ii) any omission or alleged omission to state any material
fact required to be stated in such document or schedule, or necessary to make
the statements made therein, in light of the circumstances under which made, not
misleading; (iii) any acts, practices or omission or alleged acts, practices or
omissions of any Principal Company or any of its agents related to the making of
any acquisition, purchase of shares or assets pursuant thereto, financing of
such purchases or the consummation of any other transactions contemplated by any
such acquisitions which are alleged to be in violation of any federal securities
law or of any other statute, regulation or other law of any jurisdiction
applicable to the making of any such acquisition, the purchase of shares or
assets pursuant thereto, the financing of such purchases or the consummation of
the other transactions contemplated by any such acquisition; or (iv) any
withdrawals, termination or cancellation of any such proposed acquisition for
any reason whatsoever. The indemnity set forth herein shall be in addition to
any other obligations or liabilities of the Principal Companies to the Agent and
the Lenders hereunder or at common law or otherwise. The provisions of this
Section 13.1 shall survive the payment of the Notes and the termination of this
Agreement.
Section 13.2. Taxes. If, under any law in effect on the date of the
closing of any Loan hereunder, or under any retroactive provision of any law
subsequently enacted, it shall be determined that any Federal, state or local
tax (other than taxes based on the net income of the Lenders or the Agent) is
payable in respect of the issuance of any Note, or in connection with the filing
or recording of any assignments, mortgages, financing statements, or other
documents (whether measured by the amount of Indebtedness secured or otherwise)
as contemplated by this Agreement, then the Principal Companies will pay any
such tax and all interest and penalties, if any, and will indemnify the Lenders
and the Agent against and save each of them harmless from any loss or damage
resulting from or arising out of the nonpayment or delay in payment of any such
tax. If any such tax or taxes shall be assessed or levied against any Lender or
any other holder of a Note, such Lender, or such other holder, as the case may
be, may notify the Principal Companies and make immediate payment thereof,
together with interest or penalties in connection therewith, and shall thereupon
be entitled to and shall receive immediate reimbursement therefor from the
Principal Companies. Notwithstanding any other provision contained in this
Agreement, the covenants and agreements of the Principal Companies in this
Section 13.2 shall survive payment of the Notes and the termination of this
Agreement.
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Section 13.3. Survival of Agreements and Representations; Construction.
All agreements, representations and warranties made herein shall survive the
delivery of this Agreement and the Notes. The headings used in this Agreement
and the table of contents are for convenience only and shall not be deemed to
constitute a part hereof. All uses herein of the masculine gender or of singular
or plural terms shall be deemed to include uses of the feminine or neuter
gender, or plural or singular terms, as the context may require.
Section 13.4. Modifications, Consents and Waivers; Entire Agreement. No
modification or amendment of any provision of this Agreement or any of the other
Loan Documents shall be effective unless it shall be in writing and signed by
the Principal Companies party to the relevant Loan Document. No modification,
amendment or waiver of or with respect to any provision of this Agreement or any
of the other Loan Documents nor consent to any departure by any Principal
Company from any of the terms or conditions thereof, shall in any event be
effective unless it shall be in writing and signed or consented to in writing by
the Required Lenders. Notwithstanding the foregoing,
(x) no such modification, amendment, waiver or consent shall, without the
consent of each Lender (with Obligations of the respective types being directly
affected thereby):
(a) reduce the principal of, or contract rate of interest on (other
than the reduction of the Default Rate to the rate that would otherwise be
applicable), any Note;
(b) postpone the date fixed for any payment of principal (other than
Excess Cash Flow Payments and Net Proceeds Payments) of or interest on any Note
or for any payment of Fees scheduled to be made hereunder for the account of any
Lender;
(c) reduce the amount of any payment of principal of (other than Excess
Cash Flow Payments and Net Proceeds Payments) or interest on any Note or any
payment of Fees scheduled to be made hereunder for the account of any Lender;
(d) increase any Commitment;
(e) change the definition of "Required Lenders";
(f) release any Collateral, unless either:
(i) such release is in connection with the Sale of such
Collateral and either such Sale is permitted by this Agreement or is
consented to by the Required Lenders, or
(ii) such release is not in connection with the Sale of such
Collateral and the fair market value of the Collateral to be released,
when added to the aggregate fair market value of all Collateral
previously released by the Collateral Trustee (other than in connection
with a Sale of such Collateral), is less than $5,000,000;
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(g) release any Guarantor (unless such release is in connection with
the Sale of all of the Capital Stock of such Guarantor and either such Sale is
permitted by this Agreement or substantially all of the Net Proceeds from such
Sale are used to pay the Obligations or pledged to the Agent as cash
collateral);
(h) constitute the assignment or delegation of the rights and
obligations of the Principal Companies under this Agreement; or
(i) amend this Section 13.4; and
(y) no such modification, amendment, waiver or consent shall:
(a) increase the Commitments of any Lender of any Tranche of Loans over
the amount thereof then in effect (it being understood that a waiver of any
conditions precedent, covenants, Defaults or Events of Default or of a mandatory
prepayment shall not constitute an increase of the Commitment of any Lender)
without the consent of such Lender;
(b) without the consent of the Issuing Bank, amend, modify or waive any
provision of Article III or alter its rights or obligations with respect to
Letters of Credit;
(c) without the consent of the Agent, amend, modify or waive any
provision of Article XII or any other provision relating to the rights or
obligations of the Agent;
(d) without the consent of the Required Term Loan Lenders (i) alter the
allocation or application of prepayments or repayments as among Term Loans,
Acquisition Loans and Incremental Facility Loans in a manner adverse to Term
Loan Lenders, (ii) amend, modify or waive any of the terms contained in Section
2.5(b) in a manner adverse to Term Loan Lenders, or (iii) amend the definition
of Required Term Loan Lenders;
(e) without the consent of the Required Acquisition Loan Lenders (i)
alter the allocation or application of prepayments or repayments as among Term
Loans, Acquisition Loans and Incremental Facility Loans in a manner adverse to
Acquisition Loan Lenders, (ii) amend, modify or waive any of the terms contained
in Section 2.5(c) in a manner adverse to Acquisition Loan Lenders, or (iii)
amend the definitions of Acquisition Loan Commitment Period or Required
Acquisition Loan Lenders;
(f) without the consent of the Required Incremental Facility Loan
Lenders of any Series (i) alter the allocation or application of prepayments or
repayments as among Term Loans, Acquisition Loans and Incremental Facility Loans
of such Series in a manner adverse to Incremental Facility Loan Lenders of such
Series, (ii) amend or waive any of the terms contained in Section 2.5(d) in a
manner adverse to Incremental Facility Loan Lenders of such Series, or (iii)
amend the definitions of Incremental Facility Commitment Period or Required
Incremental Facility Lenders; or
(g) without the consent of the Required Revolving Credit Lenders, amend
the definition of Required Revolving Credit Lenders.
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Any such modification, amendment, waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No consent to or
demand on any of the Principal Companies in any case shall, of itself, entitle
it to any other or further notice or demand in similar or other circumstances.
This Agreement and the other Loan Documents embody the entire agreement and
understanding among the Lenders, the Agent and the Principal Companies and
supersede all prior agreements and understandings relating to the subject matter
hereof. Notwithstanding the foregoing, Schedules 4.1, 4.13, 8.2 and 9.3 to the
Credit Agreement, Schedule III to the Collateral Trust Agreement, Schedules
3.01(a)(ii), 3.01(a)(iii), 3.01(b)(iii), 3.01(b)(iv), 3.01(c) and 3.04(a) to the
Borrower Security Agreement, Schedules 3.01(a)(ii), 3.01(a)(iii), 3.01(b)(iii),
3.01(b)(iv), 3.01(c) and 3.04(a) to the Borrower Subsidiary Security Agreement
and Schedule I to any Stock Pledge Agreement may be supplemented or amended and
restated by the Principal Company (or Principal Companies) party thereto, as the
case may be) in connection with any Permitted Acquisition, to the extent that
such supplement or amendment and restatement reflects changes that are permitted
by the Credit Agreement and the other Loan Documents. Such supplement or
amendment and restatement shall become effective upon the Borrower's delivery of
the same to the Agent, together with a certificate of an authorized officer of
the Borrower that such supplement or amendment and restatement reflects changes
that are permitted by the Credit Agreement and the other Loan Documents. The
Agent shall promptly distribute to each Lender a copy of any such supplement or
amendment and restatement, together with the certificate of the authorized
officer of the Borrower referred to above.
Section 13.5. Remedies Cumulative. Each and every right granted to the
Agent, the Issuing Bank and the Lenders hereunder or under any other document
delivered hereunder or in connection herewith, or allowed it by law or equity,
shall be cumulative and may be exercised from time to time. No failure on the
part of the Agent, the Issuing Bank or any Lender or the holder of any Note to
exercise, and no delay in exercising, any right shall operate as a waiver
thereof, nor shall any single or partial exercise of any right preclude any
other or future exercise thereof or the exercise of any other right. The due
payment and performance of the Obligations shall be without regard to any
counterclaim, right of offset and any other claim whatsoever which any of the
Principal Companies may have against any Lender, the Issuing Bank or the Agent
and without regard to any other obligation of any nature whatsoever which any
Lender, the Issuing Bank or the Agent may have against any Principal Company,
and no such counterclaim or offset shall be asserted by any Principal Company in
any action, suit or proceeding instituted by any Lender, the Issuing Bank or the
Agent for payment or performance of the Obligations.
Section 13.6. Further Assurances. At any time and from time to time,
upon the request of the Agent, the Principal Companies shall execute, deliver
and acknowledge or cause to be executed, delivered and acknowledged, such
further documents and instruments and do such other acts and things as the Agent
may reasonably request in order to fully effect the purposes of this Agreement,
the other Loan Documents and any other agreements, instruments and documents
delivered pursuant hereto or in connection with the Loans, including the
execution and delivery to the Agent of Mortgages in form and substance
satisfactory to the Agent covering all Material Real Property or interests
therein acquired by the Borrower, and all leases of Material Real Property
entered into by the Borrower as tenant or lessee, after the date of this
Agreement, as provided in Subsection 8.15(b).
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Section 13.7. Notices. All notices, requests, reports and other
communications pursuant to this Agreement shall be in writing, either by letter
(delivered by hand or commercial messenger service or sent by certified mail,
return receipt requested, except for routine reports delivered in compliance
with Article 5 hereof which may be sent by ordinary first-class mail) or
telegram or telecopy, addressed as follows:
(a)If to the Principal Companies:
c/o Saga Communications, Inc.
00 Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxxx
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxx at the address set
forth above; and
a copy to:
Xxxxxxx & Xxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopier No.: (000) 000-0000
(b)If to any Lender:
To its address set forth below its name on the signature
pages hereof, with a copy to the Agent; and
(c)If to the Agent:
Fleet National Bank
000 Xxxxxxx Xxxxxx
Media & Entertainment Group (MA\DE 10009D)
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxx, Managing Director
Telecopier No.: (000) 000-0000
with a copy (other than in the case of Borrowing Notices
and Reports and other documents delivered in compliance
with Article V hereof) to:
Xxxxxxx Xxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxxxxxxx, Esq.
Telecopier No.: (000) 000-0000
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Any notice, request or communication hereunder shall be deemed to have been
given on the day on which it is telecopied to such party at the telecopier
number specified above or delivered by hand or such commercial messenger service
to such party at its address specified above, or, if sent by mail, on the third
(3rd) Business Day after the day deposited in the mail, postage prepaid, or in
the case of telegraphic notice, when delivered to the telegraph company,
addressed as aforesaid. Any party may change the person, address or telecopier
number to whom or which notices are to be given hereunder, by notice duly given
hereunder; provided, however, that any such notice shall be deemed to have been
given hereunder only when actually received by the party to which it is
addressed.
Section 13.8. Counterparts. This Agreement may be signed in any number
of counterparts with the same effect as if the signatures thereto and hereto
were upon the same instrument.
Section 13.9. Severability. The provisions of this Agreement are
severable, and if any clause or provision hereof shall be held invalid or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction and shall not in any manner affect such clause or provision in
any other jurisdiction, or any other clause or provision in this Agreement in
any jurisdiction. Each of the covenants, agreements and conditions contained in
this Agreement is independent, and compliance by the Principal Companies with
any of them shall not excuse noncompliance by the Principal Companies with any
other. All covenants hereunder shall be given independent effect so that if a
particular action or condition is not permitted by any such covenants, the fact
that it would be permitted by an exception to, or be otherwise within the
limitations of, another covenant shall not avoid the occurrence of a Default or
an Event of Default if such action is taken or condition exists.
Section 13.10. Binding Effect; No Assignment or Delegation by Borrower.
This Agreement shall be binding upon and inure to the benefit of the Principal
Companies and their successors and to the benefit of the Lenders and the Agent
and their respective successors and assigns. The rights and obligations of the
Principal Companies under this Agreement shall not be assigned or delegated
without the prior written consent of the Agent and the Lenders, and any
purported assignment or delegation without such consent shall be void.
Section 13.11. Assignments and Participations by Lenders.
(a) 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 owing to such
Lender, any Note held by such Lender, any Commitment of such Lender, or any
other interest of such Lender hereunder and under the other Loan Documents;
provided, however, that the sum of the principal amount of Obligations and the
aggregate amount of available Commitments being sold shall in no event be less
than $5,000,000 and shall be an integral multiple of $1,000,000 in excess
thereof. In the event of any such sale by a Lender of participating interests to
a Participant, such Lender's obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Note for all purposes
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under this Agreement and the other Loan Documents, the Borrower and the Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and the other Loan
Documents and such Lender shall retain the sole right to enforce the Obligations
of the Principal Companies to such Lender and to approve any amendment,
modification or waiver of any provision of this Agreement. It is understood that
nothing in the prior sentence or elsewhere in this Section 13.11 shall prohibit
a Lender from agreeing with any Participant that such Lender will not take any
action which would require approval of all of the Lenders under Section 13.4
without the consent of such Participant and each Lender hereby agrees that it
will not agree with any Participant that it will not take any action without
such Participant's consent except such actions as would require approval of all
Lenders under Section 13.4. The Borrower agrees that if amounts outstanding
under this Agreement or the Notes are due or unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event of Default,
each Participant shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement or any Note to the
same extent as if the amount of its participating interest were owing directly
to it as a Lender under this Agreement or any Note, provided that such
Participant shall only be entitled to such right of setoff if it shall have
agreed in the agreement pursuant to which it shall have acquired its
participating interest to purchase at par from the other Lenders participations
in the Credit Extensions held by the other Lenders in such amounts, and make
such other adjustments from time to time as shall be equitable, to the end that
all the Lenders shall share the benefit of such payment pro rata in accordance
with the unpaid principal and interest on the Credit Extensions held by each of
them as provided in Section 2.18. The Borrower also agrees that each Participant
shall be entitled to the benefits of Sections 2.20, 2.24, and 13.2 with respect
to its participation in the Commitments and the Credit Extensions outstanding
from time to time and all amounts to which any Participant is entitled
thereunder shall be paid by the Borrower directly to the Lender; 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.
(b) Any Lender (any such Lender being referred to herein as an
"Assigning Lender") may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to any other Lender or any
Affiliate of such Assigning Lender and, with the consent of the Borrower (except
(i) to the extent any such assignment relates to the Arranger's initial
syndication of the Facilities or (ii) during the continuance of an Event of
Default) and the Agent (neither of which consents shall be unreasonably
withheld), to one or more additional banks or other financial institutions (a
"Purchasing Lender") all or any part of its rights and obligations under this
Agreement and the Notes. Any such assignment (an "Assignment") shall be made
pursuant to an Assignment and Acceptance Agreement, substantially in the form of
Exhibit E attached hereto (an "Assignment and Acceptance Agreement"), executed
by such Purchasing Lender, such Assigning Lender (and, in the case of a
Purchasing Lender that is not then a Lender or an Affiliate of the Assigning
Lender, by the Borrower and the Agent) and delivered to the Agent for its
acceptance and recording in the Register; provided, however, that (i) except in
the case of an Assignment to a Lender or an Affiliate of such Assigning Lender,
the sum of such Assigning Lender's available Credit Extensions and Commitments
being assigned pursuant to such Assignment (determined as of the date of the
Assignment with respect to such Assignment)
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shall in no event be less than $5,000,000 and shall be an integral multiple of
$1,000,000 (or, if less, the entire remaining amount of the Assigning Lender's
Commitments and Obligations), (ii) each such Assignment shall be of a constant,
and not a varying, percentage of all of the Assigning Lender's rights and
obligations under this Agreement. From and after the effective date specified in
each Assignment and Acceptance Agreement, which effective date must be at least
five (5) Business Days after the execution and delivery of such Assignment and
Acceptance Agreement to the Agent and (if required) the acceptance of such
Assignment and Acceptance Agreement by the Borrower and the Agent (the "Transfer
Effective Date"): (x) the Purchasing Lender thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance Agreement, have
the rights and obligations of a Lender hereunder with respect to the Commitments
and Credit Extensions as set forth therein, and (y) the Assigning Lender
thereunder shall, to the extent provided in such Assignment and Acceptance
Agreement, be released from its obligations under this Agreement to the extent
that such obligations have been assumed by the Purchasing Lender (and, in the
case of an Assignment and Acceptance Agreement covering all or the remaining
portion of an Assigning Lender's Commitments and Credit Extensions, such
Assigning Lender shall cease to be a party hereto). Each Assignment and
Acceptance Agreement duly executed and delivered in accordance with the
foregoing provisions of this paragraph (b) shall be deemed to amend this
Agreement to the extent, and only to the extent, necessary to reflect the
addition of such Purchasing Lender as a Lender hereunder and the resulting
adjustment of Commitment percentages and amounts of affected Commitments arising
from the purchase by such Purchasing Lender of all or a portion of the rights
and obligations of such Assigning Lender under this Agreement and the Notes.
Within five (5) Business Days after the Transfer Effective Date determined
pursuant to such Assignment and Acceptance Agreement and this paragraph (b), the
Borrower, at its own expense, shall execute and deliver to the Agent in exchange
for the surrender of the Note or Notes of the Assigning Lender to the Agent a
new Note or Notes to the order of such Purchasing Lender in an amount equal to
the applicable Commitments or Obligations assumed or acquired by the Purchasing
Lender pursuant to such Assignment and Acceptance Agreement and, if the
Assigning Lender has retained Commitments or outstanding Loans hereunder, a new
Note or Notes to the order of the Assigning Lender in an amount equal to the
applicable Commitments or Obligations retained by it hereunder. Such new Notes
shall be dated the Transfer Effective Date (or such other date as may be agreed
to by the Borrower, the Agent, the Assigning Lender and the Purchasing Lender)
and shall otherwise be in the form of the Notes replaced thereby. The Notes
surrendered by the Assigning Lender shall be returned by the Agent to the
Borrower marked "canceled."
(c) The Agent shall maintain at its address a copy of each Assignment
and Acceptance Agreement delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Commitments of,
and principal amount of the Loans owing to, each Lender from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as the owner of the Commitments and Loans recorded
therein for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed
by an Assigning Lender and Purchasing Lender (and, in the case of a Purchasing
Lender that is
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not then a Lender or an Affiliate of the Assigning Lender, by the Borrower and
the Agent) together with payment by the Purchasing Lender to the Agent for the
account of the Agent of a registration and processing fee of $2,500, the Agent
shall (i) promptly accept such Assignment and Acceptance Agreement, (ii) on the
Transfer Effective Date determined pursuant thereto and paragraph (b) of this
Section 13.11, record the information contained therein in the Register and
(iii) give notice of such acceptance and recordation to each of the Lenders and
the Borrower.
(e) By executing and delivering an Assignment and Acceptance Agreement,
the Assigning Lender thereunder and the Purchasing Lender thereunder confirm to
and agree with each other and the other parties hereto as follows: (i) other
than as provided in such Assignment and Acceptance Agreement, such Assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or any of the other Loan Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement, any of the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (ii) such Assigning Lender makes
no representation or warranty and assumes no responsibility with respect to the
financial condition of any of the Principal Companies or the performance or
observance by any of the Principal Companies of any of their obligations under
this Agreement, any of the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (iii) such Purchasing Lender
confirms that it has received a copy of this Agreement, together with copies of
such financial statements and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance Agreement; (iv) such Purchasing Lender will,
independently and without reliance upon the Agent, such Assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such Purchasing Lender appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement or any of the other Loan Documents as are
delegated to the Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; (vi) such Purchasing Lender agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of this Agreement or any of the other Loan Documents are required to be
performed by it as a Lender; and (vii) such Purchasing Lender (A) consents in
all respects to the provisions of the Collateral Trust Agreement, (B) agrees to
be bound by the terms of the Collateral Trust Agreement and (C) authorizes the
Collateral Trustee as Collateral Trustee to act on its behalf under the
Collateral Trust Agreement and to exercise such powers under the Collateral
Trust Agreement as are delegated to the Collateral Trustee by the terms thereof,
together with such powers as are reasonably incidental thereto.
(f) The Principal Companies authorize each Lender to disclose to any
Participant or Purchasing Lender (each, a "Transferee") and any prospective
Transferee any and all information in such Lender's possession concerning the
Principal Companies which has been delivered to such Lender by or on behalf of
the Principal Companies or the Agent pursuant to this Agreement or the other
Loan Documents or which has been delivered to such Lender by or on behalf of the
Principal Companies or the Agent in connection with such Lender's credit
evaluation of the Principal Companies and its Affiliates prior to becoming a
party to this Agreement; provided, that prior to any such
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disclosure, the Transferee or prospective Transferee shall agree to be bound by
the provisions of Section 13.14.
(g) If any interest in this Agreement or any Note is transferred to any
Transferee which is organized under the laws of any jurisdiction other than the
United States or any state thereof, the Assigning Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, (i) to
represent to the Assigning Lender (for the benefit of the Assigning Lender, the
Agent and the Borrower) that under applicable law and treaties no taxes will be
required to be withheld by the Agent, the Borrower or the Assigning Lender with
respect to any payments to be made to such Transferee in respect of the Credit
Extensions, (ii) to furnish to the Assigning Lender (and, in the case of any
Purchasing Lender registered in the Register, the Agent and the Borrower) either
U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form
1001 or U.S. Internal Revenue Service Form W-8 (wherein such Transferee claims
entitlement to complete exemption from U.S. federal withholding tax on all
interest payments hereunder) and (iii) to agree (for the benefit of the
Assigning Lender, the Agent and the Borrower) to provide the Assigning Lender
(and, in the case of any Purchasing Lender registered in the Register, the Agent
and the Borrower) a new Form 4224 or Form 1001 upon the expiration or
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 tax
exemption.
(h) Nothing herein shall prohibit any Lender from pledging or assigning
any Note to any Federal Reserve Bank in accordance with applicable law.
(i) Notwithstanding anything in this Section 13.11 or elsewhere in this
Agreement to the contrary, no Principal Company shall be obligated to reimburse
any Lender, any Purchasing Lender, any Participant or the Agent for any costs or
expenses incurred by any of them in connection with any Lender's sale of any
participating interest or any Assignment hereunder.
(j) Notwithstanding anything in this Section 13.11 or elsewhere in this
Agreement to the contrary, any Lender may at any time pledge all or any portion
of its interest and rights under this Agreement (including all or any portion of
its Notes) to any of the twelve (12) Federal Reserve Banks organized under
Section 4 of the Federal Reserve Act, 12 U.S.C. Section 341. No such pledge or
the enforcement thereof shall release the pledgor Lender from its obligations
hereunder or under any of the other Loan Documents.
Section 13.12. FCC Approval. Notwithstanding anything to the contrary
contained in this Agreement or in the other Loan Documents, neither the Agent
nor any of the Lenders will take any action pursuant to this Agreement or any of
the other Loan Documents, which would constitute or result in a change in
control of, or assignment of any FCC License of, any Principal Company requiring
the prior approval of the FCC without first obtaining such prior approval of the
FCC. After the occurrence of an Event of Default, each Principal Company shall
take or cause to be taken any action which the Agent or the Collateral Trustee
may reasonably request in order to obtain from the FCC such approval as may be
necessary to enable the Agent or the Collateral Trustee to exercise and enjoy
the full rights and benefits granted by this Agreement or any of the other Loan
Documents,
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including, at the Principal Companies' cost and expense, the use of the
Principal Companies' best efforts to assist in obtaining such approval for any
action or transaction contemplated by this Agreement or any of the other Loan
Documents for which such approval is required by law, including specifically,
without limitation, upon request, to prepare, sign and file with the FCC the
assignor's or transferor's portion of any application or applications for the
consent to the assignment or transfer of control necessary or appropriate under
the FCC's rules and approval of any of the transactions contemplated by this
Agreement or any of the other Loan Documents.
Section 13.13. Usury Provision. It is not the intention of any parties
to this Agreement to make an agreement in violation of the laws of any
applicable jurisdiction relating to usury. Regardless of any provision of this
Agreement, the Lenders shall never be entitled to receive, collect or apply, as
interest on the Loans, any amount in excess of the maximum amount permitted by
applicable law. If the Lenders ever receive, collect or apply, as interest, any
such excess, such amount which would be excessive interest shall be deemed a
partial repayment of principal and treated hereunder as such; and if principal
is paid in full, any remaining excess shall be paid to the Borrower. In
determining whether or not the interest paid or payable under any specific
contingency exceeds the maximum amount permitted by applicable law, the Lenders
shall, to the extent permitted under applicable laws, and solely for purposes of
making such determination, (i) characterize any non-principal payment as an
expense, fee or premium rather than as interest, (ii) exclude voluntary
prepayments and the effect thereof, and (iii) amortize, prorate, allocate and
spread in equal parts the total amount of interest throughout the entire
contemplated term of this Agreement so that the interest rate is uniform
throughout the entire term of this Agreement; provided, however, that if the
Loans are paid and performed in full prior to the end of the full contemplated
term thereof, and if the interest received for the actual period of existence
thereof exceeds the maximum amount permitted by applicable law, the Lenders
shall refund to the Borrower the amount of such excess or credit the amount of
such excess against the total principal amount of the Loans owing, and, in such
event, the Lenders shall not be subject to any penalties provided by any laws
for contracting for, charging or receiving interest in excess of the maximum
amount permitted by applicable law. This Section 13.13 shall control every other
provision of all agreements pertaining to the transactions contemplated by or
contained in this Agreement.
Section 13.14. Certain Lien Releases. Upon the occurrence of any
Permitted Sale or any other sale of Assets by the Borrower or any Restricted
Subsidiary permitted by Section 9.3(a)(iii) or consented to by the Required
Lenders, the Collateral Trustee's Liens on the Assets sold shall be
automatically released. Notwithstanding the foregoing, the Collateral Trustee's
Liens on the proceeds of any Assets sold shall continue in full force and
effect. The Lenders hereby authorize the Collateral Trustee to execute and
deliver such documents and to take such actions as may be appropriate to give
effect to the foregoing.
Section 13.15. Confidentiality. The Agent and each Lender shall hold
all (i) projections and financial statements which have not been delivered to
the public, and (ii) all other non-public information which the Agent or such
Lender has been informed is non-public or the Agent or such Lender believes is
confidential and has been obtained pursuant to this Agreement, in accordance
with the Agent's or such Lender's customary procedures for handling confidential
information of such nature and in accordance with safe and sound banking
practices, provided that in any event it is understood and agreed that the Agent
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and each Lender may make disclosure to its examiners, affiliates, outside
auditors, counsel, and other professional advisors in connection with this
Agreement or any other Loan Documents or as reasonably required by any bona fide
prospective Transferee or actual Transferee in connection with the contemplated
transfer of any Commitment, Loan, Letter of Credit or Note or any participation
therein (provided that such Transferee agrees to keep such information
confidential) or as required or requested by any Governmental Authority or
representative thereof or pursuant to legal process; provided, further, that in
no event shall any Lender be obligated or required to return any materials
furnished by the Borrower.
Section 13.16. Governing Law; Consent to Jurisdiction; Waiver of Trial
by Jury.
(a) THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND ALL OTHER DOCUMENTS
AND INSTRUMENTS EXECUTED AND DELIVERED IN CONNECTION HEREWITH AND THEREWITH,
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS
OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT REFERENCE TO CONFLICTS OR CHOICE
OF LAW).
(b) THE PRINCIPAL COMPANIES IRREVOCABLY CONSENT THAT ANY LEGAL ACTION
OR PROCEEDING AGAINST ANY OF THEM UNDER, ARISING OUT OF OR IN ANY MANNER
RELATING TO THIS AGREEMENT, AND EACH OTHER LOAN DOCUMENT MAY BE BROUGHT IN ANY
COURT OF THE COMMONWEALTH OF MASSACHUSETTS OR IN THE UNITED SATES DISTRICT COURT
FOR MASSACHUSETTS. THE PRINCIPAL COMPANIES, BY THE EXECUTION AND DELIVERY OF
THIS AGREEMENT, EXPRESSLY AND IRREVOCABLY ASSENT AND SUBMIT TO THE PERSONAL
JURISDICTION OF ANY OF SUCH COURTS IN ANY SUCH ACTION OR PROCEEDING. THE
PRINCIPAL COMPANIES FURTHER IRREVOCABLY CONSENT TO THE SERVICE OF ANY COMPLAINT,
SUMMONS, NOTICE OR OTHER PROCESS RELATING TO ANY SUCH ACTION OR PROCEEDING BY
DELIVERY THEREOF TO IT BY HAND OR BY MAIL IN THE MANNER PROVIDED FOR IN SECTION
13.7. THE PRINCIPAL COMPANIES HEREBY EXPRESSLY AND IRREVOCABLY WAIVE ANY CLAIM
OR DEFENSE IN ANY SUCH ACTION OR PROCEEDING BASED ON ANY ALLEGED LACK OF
PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS OR ANY SIMILAR
BASIS. THE PRINCIPAL COMPANIES SHALL NOT BE ENTITLED IN ANY SUCH ACTION OR
PROCEEDING TO ASSERT ANY DEFENSE GIVEN OR ALLOWED UNDER THE LAWS OF ANY STATE
OTHER THAN THE COMMONWEALTH OF MASSACHUSETTS UNLESS SUCH DEFENSE IS ALSO GIVEN
OR ALLOWED BY THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. NOTHING IN THIS
SECTION 13.15 SHALL AFFECT OR IMPAIR IN ANY MANNER OR TO ANY EXTENT THE RIGHT OF
ANY LENDER TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE
PRINCIPAL COMPANIES IN ANY JURISDICTION OR TO SERVE PROCESS IN ANY MANNER
PERMITTED BY LAW.
(c) EACH OF THE PRINCIPAL COMPANIES WAIVES TRIAL BY JURY IN ANY
LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF,
THIS AGREEMENT, ANY OF THE OTHER LOAN DOCUMENTS, OR ANY INSTRUMENT OR DOCUMENT
DELIVERED PURSUANT TO THIS
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AGREEMENT, OR THE VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR
ENFORCEMENT THEREOF.
Section 13.17. Integration of Schedules and Exhibits. Annexed to this
Agreement are the Schedules and Exhibits. Such Schedules and Exhibits are an
integral part of this Agreement and are hereby incorporated by reference.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date first above written.
BORROWER:
SAGA COMMUNICATIONS, INC.
By:
-----------------------------------------
Name:
Title:
RESTRICTED SUBSIDIARIES:
SAGA BROADCASTING CORP.
FRANKLIN COMMUNICATIONS, INC.
TIDEWATER COMMUNICATIONS, INC.
SAGA COMMUNICATIONS OF
ILLINOIS, INC.
LAKEFRONT COMMUNICATIONS, INC.
SAGA COMMUNICATIONS OF
NEW ENGLAND, INC.
SAGA QUAD STATES COMMUNICATIONS, INC.
SAGA COMMUNICATIONS OF
MICHIGAN, INC.
HARBISH CORP.
SAGA COMMUNICATIONS OF IOWA, LLC
SAGA COMMUNICATIONS OF
NEW YORK, LLC
SAGA COMMUNICATIONS OF
TUCKESSEE, LLC
By:
-----------------------------------------
Name:
Title:
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AGENT:
FLEET NATIONAL BANK
By:
-----------------------------------------
Xxxx X. Xxxxxx, Managing Director
Lending Office for all Loans:
Fleet National Bank
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Address for Notices:
Fleet National Bank
000 Xxxxxxx Xxxxxx
Media & Entertainment Group (MA\DE 10009D)
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxx
Telecopier: (000) 000-0000
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SYNDICATION AGENT:
THE BANK OF NEW YORK
By:
-----------------------------------------
Title:
Lending Office for all Loans:
Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Address for Notices:
Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
Telecopier: 000-000-0000
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LENDERS:
FLEET NATIONAL BANK
By:
-----------------------------------------
Title: Managing Director
Address for Notices:
Fleet National Bank
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xx Xxxx X. Xxxxxx
Media & Entertainment Group (MA\DE 10009D)
Telecopier: (000) 000-0000
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THE BANK OF NEW YORK
By:
-----------------------------------------
Title:
Lending Office for all Loans:
----------------------------
Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Address for Notices:
Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
Telecopier: 000-000-0000
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UNION BANK OF CALIFORNIA, N.A.
By:
-----------------------------------------
Title:
Lending Office for all Loans:
Union Bank of California, N.A.
000 Xxxxx Xxxxxxxx Xxxxxx
G 00-000
Xxx Xxxxxxx, XX 00000
Address for all Notices:
Union Bank of California, N.A.
000 Xxxxx Xxxxxxxx Xxxxxx
G 00-000
Xxx Xxxxxxx, XX 00000
Attention: Xx. Xxxx Xxxxxx
Telecopier: 000-000-0000
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ALLFIRST BANK
By:
-----------------------------------------
Title:
Lending Office for all Loans:
Allfirst Bank
00 Xxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Address for Notices:
Allfirst Bank
00 Xxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxx
Telecopier:
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BANK OF SCOTLAND
By:
-----------------------------------------
Title:
Lending Office for all Loans:
Bank of Scotland
000 Xxxxx Xxxxxx
Xxx Xxxx XX 00000
Address for Notices:
Bank of Scotland
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xx. Xxxx Xxxxxx
Telecopier: 000-000-0000
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NATIONAL CITY BANK OF
MICHIGAN/ILLINOIS
By:
-----------------------------------------
Title:
Lending Office for all Loans:
National City Bank of Michigan/Illinois
Xxx Xxxxxxxx Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Address for Notices:
National City Bank of Michigan/Illinois
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx: R-J4D-4H
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxx X. Xxxxxx
Telecopier: 000-000-0000
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BANK OF MONTREAL
By:
-----------------------------------------
Title:
Lending Office for all Loans:
Client Services
Bank of Montreal, Chicago
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Address for Notices:
Bank of Montreal
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxx Xxxxxx
Telecopier: 000-000-0000
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CITIZENS BANK OF MASSACHUSETTS,
A MASSACHUSETTS BANK
By:
-----------------------------------------
Lending Office for all Loans:
Citizens Bank of Massachusetts,
a Massachusetts Bank
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Address for Notices:
Citizens Bank of Massachusetts
A Massachusetts Bank
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxx
Telecopier: 000-000-0000
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SUNTRUST BANK
By:
-----------------------------------------
Title:
Lending Office for all Loans:
SunTrust Bank
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Address for Notices:
SunTrust Bank
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Mail Code 1109
Attention: Ms. Xxxxx Xxxxx
Telecopier: 000-000-0000
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MICHIGAN NATIONAL BANK
By:
-----------------------------------------
Title:
Lending Office for all Loans:
Michigan National Bank
Specialty Industries
0000 Xxxxxxx Xxxx
XX 0000
Xxxxxxxxxx Xxxxx, XX 00000
Address for Notices:
Michigan National Bank
Specialty Industries
00000 Xxxxxxx Xxxx
XX 0000
Xxxxxxxxxx Xxxxx, XX 00000
Attention: Xx. Xxxx Xxxxx
Telecopier: 000-000-0000
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FIRSTAR BANK, N.A.
By:
-----------------------------------------
Title:
Lending Office for all Loans:
Firstar Bank
7th & Washington; XX-XX-12MP
Xx. Xxxxx, XX 00000
Address for Notices:
Firstar Bank
7th & Washington; XX-XX-12MP
Xx. Xxxxx, XX 00000
Attention: Xx. Xxxxxxxxx Xxxxxx
Telecopier: 000-000-0000
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For purposes of Section 13.14 only:
COLLATERAL TRUSTEE:
FLEET NATIONAL BANK
By:
---------------------------------
Xxxx X. Xxxxxx, Managing Director
