Exhibit 4
---------
$360,000,000
CREDIT AGREEMENT
dated as of
July 1, 1997
among
MEREDITH CORPORATION,
The Banks Listed Herein,
WACHOVIA BANK, N.A.,
as Agent and a Bank,
THE BANK OF NEW YORK,
as Documentation Agent and a Bank,
BANKBOSTON, N.A.
as Syndication Agent and a Bank,
THE NORTHERN TRUST COMPANY,
as Co-Agent and a Bank
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CREDIT AGREEMENT
AGREEMENT dated as of July 1, 1997 among MEREDITH CORPORATION, the BANKS
listed on the signature pages hereof, THE BANK OF NEW YORK, as Documentation
Agent and a Bank, BANKBOSTON, N.A., as Syndication Agent and a Bank, THE
NORTHERN TRUST COMPANY, as Co-Agent and a Bank, and WACHOVIA BANK, N.A., as
Agent and as a Bank.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The terms as defined in this Section 1.01
shall, for all purposes of this Agreement and any amendment hereto (except as
herein otherwise expressly provided or unless the context otherwise requires),
have the meanings set forth herein:
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.06(c).
"Affiliate" of any Person means (i) any other Person which directly, or
indirectly through one or more intermediaries, controls such Person, (ii) any
other Person which directly, or indirectly through one or more intermediaries,
is controlled by or is under common control with such Person, or (iii) any
other Person of which such Person owns, directly or indirectly, 20% or more of
the common stock or equivalent equity interests. As used herein, the term
"control" means possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through
the ownership of voting securities, by contract or otherwise.
"Agent" means Wachovia Bank, N.A., a national banking association
organized under the laws of the United States of America, in its capacity as
agent for the Banks hereunder, and its successors and permitted assigns in such
capacity.
"Agent's Letter Agreement" means that certain letter agreement, dated as
of May 9, 1997, between the Borrower and the Agent relating to the structure of
the Term Loans and Revolving Credit Loans, and certain fees from time to time
payable by the Borrower to the Agent, together with all amendments and
modifications thereto.
"Agreement" means this Credit Agreement, together with all amendments and
supplements hereto.
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"Applicable Facility Fee Rate" has the meaning set forth in Section
2.07(a).
"Applicable Margin" has the meaning set forth in Section 2.06(a).
"Applicable Unused Fee Rate" has the meaning set forth in Section 2.07(b).
"Assignee" has the meaning set forth in Section 9.07(c).
"Assignment and Acceptance" means an Assignment and Acceptance executed in
accordance with Section 9.07(c) in the form attached hereto as Exhibit K.
"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages hereof as having a
Term Loan Commitment and Revolving Credit Commitment, and its successors and
assigns.
"Base Rate" means for any Base Rate Loan for any day, the rate per annum
equal to the higher as of such day of (i) the Prime Rate, and (ii) one-half of
one percent above the Federal Funds Rate for such day. For purposes of
determining the Base Rate for any day, changes in the Prime Rate and the
Federal Funds Rate shall be effective on the date of each such change.
"Base Rate Borrowing" means: (i) a Term Loan Borrowing if the advances
under such borrowing bear or are to bear interest calculated by reference to
the Base Rate; and (ii) a Revolving Credit Borrowing if the advances under such
borrowing bear or are to bear interest calculated by reference to the Base
Rate.
"Base Rate Loan" means: (i) the Term Loans during periods in which the
Term Loans bear or are to bear interest calculated by reference to the Base
Rate; and (ii) Revolving Credit Loans which bear or are to bear interest
calculated by reference to the Base Rate.
"Borrower" means Meredith Corporation, a corporation incorporated under
the laws of the State of Iowa, and its successors and permitted assigns.
"Borrower Officer's Certificate" has the meaning set forth in Section
3.01(f).
"Broadcast Licenses" means licenses, permits, authorizations or
certificates now or hereafter held by the Borrower and its Subsidiaries
(including, without limitation, the Broadcast Licenses listed on Schedule 4.19
hereto) to construct, own, operate or promote the Stations granted by the FCC,
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the administrative law courts or by any state, county, city, town, village or
other local government authority, and all extensions, additions and renewals
thereto or thereof.
"Capital Expenditures" means for any period the sum of all capital
expenditures incurred during such period by the Borrower and its Consolidated
Subsidiaries, as determined in accordance with GAAP.
"Capital Stock" means any nonredeemable capital stock of the Borrower or
any Consolidated Subsidiary (to the extent issued to a Person other than the
Borrower), whether common or preferred.
"CERCLA" means the Comprehensive Environmental Response Compensation and
Liability Act, 42 U.S.C. Section 9601 et seq. and its implementing regulations
and amendments.
"CERCLIS" means the Comprehensive Environmental Response Compensation and
Liability Information System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section 8.02.
"Closing Certificate" has the meaning set forth in Section 3.01(e).
"Closing Date" means July 1, 1997.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code. Any reference to any provision of the Code shall
also be deemed to be a reference to any successor provision or provisions
thereof.
"Compliance Certificate" has the meaning set forth in Section 5.01(c).
"Consolidated Fixed Charges" for any period means the sum of (i)
Consolidated Interest Expense for such period; (ii) all payments of principal
in respect of Debt of the Borrower or any of its Consolidated Subsidiaries for
such period; and (iii) all dividends paid by the Borrower and its Consolidated
Subsidiaries for such period.
"Consolidated Funded Debt" means, at any date, the Debt of the Borrower
and its Consolidated Subsidiaries, determined on a consolidated basis as of
such date.
"Consolidated Gross Revenues" means as applied to any Person for any
period, the aggregate gross revenues of such Person for such period, as
determined in accordance with GAAP.
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"Consolidated Interest Expense" for any period means interest expensed in
respect of Debt of the Borrower or any of its Consolidated Subsidiaries
outstanding during such period.
"Consolidated Net Income" means, for any period, the Net Income of the
Borrower and its Consolidated Subsidiaries determined on a consolidated basis,
but excluding (i) extraordinary items and (ii) any equity interests of the
Borrower or any Subsidiary in the unremitted earnings of any Person that is not
a Subsidiary.
"Consolidated Net Worth" means, at any time, the shareholders' equity of
the Borrower and its Consolidated Subsidiaries, as set forth or reflected on
the most recent consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries prepared in accordance with GAAP, but excluding any Redeemable
Preferred Stock of the Borrower or any of its Consolidated Subsidiaries.
Shareholders' equity generally would include, but not be limited to (i) the par
or stated value of all outstanding Capital Stock, (ii) capital surplus, (iii)
retained earnings, and (iv) various deductions such as (A) purchases of
treasury stock, (B) valuation allowances, (C) receivables due from an employee
stock ownership plan, (D) employee stock ownership plan debt guarantees, and
(E) translation adjustments for foreign currency transactions.
"Consolidated Operating Profits" means, for any period, the Operating
Profits of the Borrower and its Consolidated Subsidiaries.
"Consolidated Subsidiary" means at any date any Subsidiary or other entity
the accounts of which, in accordance with GAAP, would be consolidated with
those of the Borrower in its consolidated financial statements as of such date.
"Consolidated Total Assets" means, at any time, the total assets of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated basis,
as set forth or reflected on the most recent consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries, prepared in accordance with GAAP.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower, are treated as a single employer under
Section 414 of the Code.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee under capital
leases, (v) all obligations of such Person to reimburse any bank or other
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Person in respect of amounts payable under a banker's acceptance, (vi) all
Redeemable Preferred Stock of such Person (in the event such Person is a
corporation), (vii) all obligations (absolute or contingent) of such Person to
reimburse any bank or other Person in respect of amounts paid under a letter of
credit or similar instrument, with an expiration date more than one year from
such date, (viii) all Debt of others secured by a Lien on any asset of such
Person, whether or not such Debt is assumed by such Person, and (ix) all Debt
of others Guaranteed by such Person.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived in writing, become an Event of Default.
"Default Rate" means, with respect to any Revolving Credit Loan or Term
Loan, on any day, the sum of 2% plus the then highest interest rate (including
the Applicable Margin) which may be applicable to any Euro-Dollar Loan or Base
Rate Loan hereunder (irrespective of whether any such type of loans are
actually outstanding hereunder).
"Depreciation and Amortization" means for any period the sum of all
depreciation and amortization expenses of the Borrower and its Consolidated
Subsidiaries for such period, as determined in accordance with GAAP.
"Dollars" or "$" means dollars in lawful currency of the United States of
America.
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in Georgia are authorized or required by law to
close.
"EBITDA" for any period means the sum of: (i) Consolidated Net Income,
(ii) taxes on income, (iii) Consolidated Interest Expense, and (iv)
Depreciation and Amortization, all determined with respect to the Borrower and
its Consolidated Subsidiaries on a consolidated basis for such period and in
accordance with GAAP. In computing EBITDA, any of the foregoing items
realized or accrued for such period and prior to the date of a Permitted
Acquisition (solely for purposes of this definition, Permitted Acquisition
shall be deemed to include the acquisition of any asset) by the Person so
acquired or attributable to the assets so acquired shall be included in EBITDA,
but only to the extent that such items of such Person or attributable to such
assets would have been available to the Borrower or such Subsidiary had the
Borrower or such Subsidiary acquired such Person or such assets at the
beginning of such period.
"Environmental Authority" means any foreign, federal, state, local or
regional government that exercises any form of jurisdiction or authority under
any Environmental Requirement.
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"Environmental Authorizations" means all licenses, permits, orders,
approvals, notices, registrations or other legal prerequisites for conducting
the business of the Borrower or any Subsidiary required by any Environmental
Requirement.
"Environmental Judgments and Orders" means all judgments, decrees or
orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated in a judgment,
decree or order.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment, including, without limitation, ambient air, surface water,
groundwater or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"Environmental Liabilities" means any liabilities, whether accrued,
contingent or otherwise, arising from and in any way associated with any
Environmental Requirements, which when combined with all other Environmental
Liabilities of the Borrower is greater than $500,000.
"Environmental Notices" means notice from any Environmental Authority or
by any other person or entity, of possible or alleged noncompliance with or
liability under any Environmental Requirement, including without limitation any
complaints, citations, demands or requests from any Environmental Authority or
from any other person or entity for correction of any violation of any
Environmental Requirement or any investigations concerning any violation of any
Environmental Requirement.
"Environmental Proceedings" means any judicial or administrative
proceedings arising from or in any way associated with any Environmental
Requirement.
"Environmental Releases" means releases as defined in CERCLA or under any
applicable state or local environmental law or regulation.
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"Environmental Requirements" means any legal requirement relating to
health, safety or the environment and applicable to the Borrower, any
Subsidiary or the Properties, including but not limited to any such requirement
under CERCLA or similar state legislation and all federal, state and local
laws, ordinances, regulations, orders, writs, decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor law. Any reference to any
provision of ERISA shall also be deemed to be a reference to any successor
provision or provisions thereof.
"E. T. Meredith Family Stockholders" means the lineal descendants of E. T.
Meredith, the spouses of such lineal descendants and trusts, established for
estate planning purposes, in which all of the beneficiaries are either lineal
descendants of E.T. Meredith or spouses of lineal descendants of E.T. Meredith.
"Euro-Dollar Borrowing" means: (i) a Term Loan Borrowing if the advances
under such borrowing bear or are to bear interest at a rate based upon the
London Interbank Offered Rate; and (ii) a Revolving Credit Borrowing if the
advances under such borrowing bear or are to bear interest at a rate based upon
the London Interbank Offered Rate.
"Euro-Dollar Business Day" means any Domestic Business Day on which
dealings in Dollar deposits are carried out in the London interbank market.
"Euro-Dollar Loan" means: (i) the Term Loans during periods in which the
Term Loans bear interest at a rate based upon the London Interbank Offered
Rate; and (ii) Revolving Credit Loans which bear or are to bear interest at a
rate based upon the London Interbank Offered Rate.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.06(c).
"Event of Default" has the meaning set forth in Section 6.01.
"Facility Fee Determination Date" has the meaning set forth in Section
2.07(a).
"Facility Fee Payment Date" means each April 1, July 1, October 1 and
January 1.
"FCC" means the Federal Communications Commission.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the next higher 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of
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the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if the day for which such rate is
to be determined is not a Domestic Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business Day, and
(ii) if such rate is not so published for any day, the Federal Funds Rate for
such day shall be the average rate charged to Wachovia on such day on such
transactions as determined by the Agent.
"First Media Television Stations" means collectively: (i) KPDX, a UHF
broadcasting station licensed to Vancouver, Washington, and serving the
Portland, Oregon, market; (ii) KFXO-LP, a low power broadcasting station
licensed to Bend, Oregon, and serving the Bend, Oregon, market; and (iii)
WHNS-TV, a UHF broadcasting station licensed to Asheville, North Carolina, and
serving the Asheville, North Carolina-Greenville, South Carolina, market.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"Fixed Charge Coverage Ratio" means the ratio, measured as of the last day
of each Fiscal Quarter, of: (A) the amount equal to: (i) EBITDA, calculated for
the Fiscal Quarter then ended and the immediately preceding three Fiscal
Quarters, less (ii) Capital Expenditures, calculated for the Fiscal Quarter
then ended and the immediately preceding three Fiscal Quarters, to (B)
Consolidated Fixed Charges for the Fiscal Quarter then ended and the
immediately preceding three Fiscal Quarters.
"Forfeiture Proceeding" means any action, proceeding or investigation
affecting the Borrower or any Subsidiary of the Borrower before any court,
arbitrator or Governmental Authority having jurisdiction over the Borrower or
such Subsidiary or the receipt of notice by any such party that any of them is
a suspect in or a target of any governmental inquiry or investigation, which
may result in: (a) an indictment of any of them; or (b) the seizure or
forfeiture of any of their property which, when combined with all other
property of the Borrower of any Subsidiary of the Borrower seized or forfeited
during the current Fiscal Quarter and the immediately preceding three Fiscal
Quarters has an aggregate fair market value in excess of $500,000.
"GAAP" means generally accepted accounting principles applied on a basis
consistent with those which, in accordance with Section 1.02, are to be used in
making the calculations for purposes of determining compliance with the terms
of this Agreement.
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"Governmental Authority" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, or any instrumentality of any of the foregoing.
"Guarantee" by any Person means any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Debt or other obligation
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
secure, purchase or pay (or advance or supply funds for the purchase or payment
of) such Debt or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods, securities
or services, to provide collateral security, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Hazardous Materials" includes, without limitation, (a) solid or hazardous
waste, as defined in the Resource Conservation and Recovery Act of 1980, 42
U.S.C. Section 6901 et seq. and its implementing regulations and amendments, or
in any applicable state or local law or regulation, (b) any "hazardous
substance", "pollutant" or "contaminant", as defined in CERCLA, or in any
applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, including crude oil or any fraction thereof,
(d) toxic substances, as defined in the Toxic Substances Control Act of 1976,
or in any applicable state or local law or regulation and (e) insecticides,
fungicides, or rodenticides, as defined in the Federal Insecticide, Fungicide,
and Rodenticide Act of 1975, or in any applicable state or local law or
regulation, as each such Act, statute or regulation may be amended from time to
time.
"Interest Payment Date" means each April 1, July 1, October 1 and
January 1.
"Interest Period" means: (1) with respect to each Euro-Dollar Borrowing,
the period commencing on the date of such borrowing and ending on the
numerically corresponding day in the first, second, third or sixth month
thereafter, as the Borrower may elect in the applicable Notice of Borrowing;
provided that:
(a) any Interest Period (subject to clause (c) below) which would
otherwise end on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day unless such Euro-
Dollar Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar Business Day;
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(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the appropriate subsequent calendar
month) shall, subject to clause (c) below, end on the last Euro-Dollar
Business Day of the appropriate subsequent calendar month; and
(c) (i) any Interest Period applicable to the Term Loans which begins
before the Term Loan Maturity Date and would otherwise end after the Term
Loan Maturity Date shall end on the Term Loan Maturity Date; and (ii) any
Interest Period applicable to a Syndicated Revolving Credit Loan which
begins before the Revolving Credit Maturity Date and would otherwise end
after the Revolving Credit Maturity Date shall end on the Revolving Credit
Maturity Date.
(2) with respect to each Base Rate Borrowing, the period commencing on the
date of such borrowing and ending 30 days thereafter; provided that:
(a) any Interest Period (subject to clause (b) below) which would
otherwise end on a day which is not a Domestic Business Day shall be
extended to the next succeeding Domestic Business Day; and
(b) (i) any Interest Period applicable to the Term Loans which
begins before the Term Loan Maturity Date and would otherwise end after
the Term Loan Maturity Date shall end on the Term Loan Maturity Date; and
(ii) any Interest Period applicable to a Syndicated Revolving Credit Loan
which begins before the Revolving Credit Maturity Date and would otherwise
end after the Revolving Credit Maturity Date shall end on the Revolving
Credit Maturity Date.
(3) with respect to each Money Market Borrowing, the period commencing on the
date of such borrowing and ending 7 to 365 days thereafter, as the Borrower may
indicate in the applicable Money Market Quote Request; provided that:
(a) any Interest Period (subject to clause (b) below) which would
otherwise end on a day which is not a Domestic Business Day shall be
extended to the next succeeding Domestic Business Day; and
(b) no Interest Period may be selected which begins before the
Revolving Credit Maturity Date and would otherwise end after the Revolving
Credit Maturity Date.
"Investment" means any investment in any Person, whether by means of
purchase or acquisition of obligations or securities of such Person, capital
contribution to such Person, loan or advance to such Person, making of a time
deposit with such Person, Guarantee or assumption of any obligation of such
Person or otherwise.
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"Lending Office" means, as to each Bank, its office located at its address
set forth on the signature pages hereof (or identified on the signature pages
hereof as its Lending Office) or such other office as such Bank may hereafter
designate as its Lending Office by notice to the Borrower and the Agent.
"Lien" means, with respect to any asset, any mortgage, deed to secure
debt, deed of trust, lien, pledge, charge, security interest, security title,
preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, servitude or encumbrance of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing. For
the purposes of this Agreement, the Borrower or any Subsidiary shall be deemed
to own subject to a Lien any asset which it has acquired or holds subject to
the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"Loan Documents" means this Agreement, the Notes, any other document
evidencing, relating to or securing the Term Loans or the Revolving Credit
Loans, and any other document or instrument delivered from time to time in
connection with this Agreement, the Notes, or the Term Loans or the Revolving
Credit Loans, as such documents and instruments may be amended or supplemented
from time to time.
"London Interbank Offered Rate" has the meaning set forth in Section
2.06(c).
"Margin Stock" means "margin stock" as defined in Regulation G, T, U or X
of the Board of Governors of the Federal Reserve System, as in effect from time
to time, together with all official rulings and interpretations issued
thereunder.
"Material Adverse Effect" means, with respect to any event, act, condition
or occurrence of whatever nature (including any adverse determination in any
litigation, arbitration, or governmental investigation or proceeding), whether
singly or in conjunction with any other event or events, act or acts, condition
or conditions, occurrence or occurrences, whether or not related, a material
adverse change in, or a material adverse effect upon, any of (a) the financial
condition, operations, business, properties or prospects of the Borrower and
its Consolidated Subsidiaries taken as a whole, (b) the rights and remedies of
the Agent or the Banks under the Loan Documents, or the ability of the Borrower
to perform its obligations under the Loan Documents to which it is a party, as
applicable, or (c) the legality, validity or enforceability of any Loan
Document.
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"Money Market Borrowing" means a Revolving Credit Borrowing if the
advances under such borrowing bear or are to bear interest at a Money Market
Rate.
"Money Market Loan" means a Revolving Credit Loan which bears or is to
bear interest at a Money Market Rate.
"Money Market Notes" means promissory notes of the Borrower, substantially
in the form of Exhibit C hereto, evidencing the obligation of the Borrower to
repay the Money Market Loans, together with all amendments, consolidations,
modifications, renewals and supplements thereto and "Money Market Note" means
any one of such Money Market Notes.
"Money Market Quote" means an offer by a Bank to make a Money Market Loan
in accordance with Section 2.03(c).
"Money Market Quote Request" has the meaning set forth in Section 2.03(b).
"Money Market Rate" has the meaning set forth in Section 2.03(c)(ii)(C).
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Net Income" means, as applied to any Person for any period, the aggregate
amount of net income of such Person, after taxes, for such period, as
determined in accordance with GAAP.
"Net Proceeds of Capital Stock" means any and all proceeds (whether cash
or non-cash) or other consideration received by the Borrower or a Consolidated
Subsidiary in respect of the issuance of Capital Stock (including, without
limitation, the aggregate amount of any and all Debt converted into Capital
Stock), from a Person other than the Borrower or a Consolidated Subsidiary,
after deducting therefrom all reasonable and customary costs and expenses
incurred by the Borrower or such Consolidated Subsidiary directly in connection
with the issuance of such Capital Stock.
"Non-excluded Taxes" has the meaning set forth in Section 2.12(c).
"Note" means a Term Loan Note, a Syndicated Revolving Credit Note or a
Money Market Note and "Notes" means the Term Loan Notes, the Syndicated
Revolving Credit Notes or Money Market Notes, or any or all of them, as the
context shall require.
"Notice of Borrowing" has the meaning set forth in Section 2.02.
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"Operating Profits" means, as applied to any Person for any period, the
operating income of such Person for such period, as determined in accordance
with GAAP.
"Participant" has the meaning set forth in Section 9.07(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Acquisition" means the acquisition by the Borrower or any
Subsidiary of the Borrower of shares of capital stock of any Person or assets
from any Person, if: (A) in the case of the acquisition of shares of capital
stock of any Person, immediately after giving effect to such acquisition (i)
such Person is a Consolidated Subsidiary; (ii) the Borrower controls such
Person directly or indirectly through a Subsidiary; (iii) no Default shall have
occurred and be continuing; (iv) the line or lines of business engaged in by
such Person are substantially the same as the lines of business engaged in by
the Borrower and its Subsidiaries on the Closing Date; and (v) such acquisition
is made on a negotiated basis with the approval of the Board of Directors of
the Person to be acquired and, if necessary, the shareholders of the Person to
be acquired; and (B) in the case of the acquisition of assets from any Person,
immediately after giving effect to such acquisition: (i) the assets acquired
by the Borrower or such Subsidiary of the Borrower, shall be used by the
Borrower or such Subsidiary in a line of business substantially the same as the
lines of business engaged in by the Borrower and its Subsidiaries on the
Closing Date; and (ii) no Default shall have occurred and be continuing.
"Person" means an individual, a corporation, a limited liability company,
a partnership (including without limitation, a joint venture), an
unincorporated association, a trust or any other entity or organization,
including, but not limited to, a government or political subdivision or an
agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan which is covered
by Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Code and is either (i) maintained by a member of the Controlled
Group for employees of any member of the Controlled Group or (ii) maintained
pursuant to a collective bargaining agreement or any other arrangement under
which more than one employer makes contributions and to which a member of the
Controlled Group is then making or accruing an obligation to make contributions
or has within the preceding 5 plan years made contributions.
"Prime Rate" refers to that interest rate so denominated and set by
Wachovia from time to time as an interest rate basis for borrowings. The Prime
Rate is but one of several interest rate bases used by Wachovia. Wachovia
lends at interest rates above and below the Prime Rate.
- 14 -
"Properties" means all real property owned, leased or otherwise used or
occupied by the Borrower or any Subsidiary, wherever located.
"Proposed Station Exchange" means the exchange of: (i) the assets (the
"WCPX Assets") acquired by the Borrower in connection with the operation of
WCPX, a VHF broadcasting station serving the Orlando, Florida market; for (ii)
the assets used in connection with the operation of WFSB, a VHF broadcasting
station serving the Hartford-New Haven, Connecticut market and no less than
$55,000,000 in cash, which exchange shall occur simultaneously with the
Borrower's acquisition of the WCPX Assets.
"Quotation Date" has the meaning set forth in Section 2.03(b).
"Rate Determination Date" has the meaning set forth in Section 2.06(a).
"Redeemable Preferred Stock" of any Person means any preferred stock
issued by such Person which is at any time prior to the Term Loan Maturity Date
either (i) mandatorily redeemable (by sinking fund or similar payments or
otherwise) or (ii) redeemable at the option of the holder thereof.
"Reported Net Income" means, for any period, the Net Income of the
Borrower and its Consolidated Subsidiaries determined on a consolidated basis.
"Required Banks" means at any time: (1) Banks having at least 51% of the
aggregate amount of the sum of: (i) Revolving Credit Commitments; and (ii) Term
Loan Commitments; or, (2) if the Revolving Credit Commitments and Term Loan
Commitments are no longer in effect, Banks holding at least 51% of the
aggregate outstanding principal amount of the Notes.
"Revolving Credit Loan" means a Syndicated Revolving Credit Loan or a
Money Market Loan and "Revolving Credit Loans" means Syndicated Revolving
Credit Loans or Money Market Loans, or any or all of them, as the context shall
require.
"Revolving Credit Borrowing" shall mean a borrowing under the Revolving
Credit Commitment consisting of: (i) Revolving Credit Loans made to the
Borrower at the same time by, in the case of a Syndicated Revolving Credit
Borrowing, the Banks; or (ii) Revolving Credit Loans made to the Borrower at
the same time by, in the case of a Money Market Borrowing, one or more of the
Banks, in each case pursuant to Article II. A Revolving Credit Borrowing is a
"Syndicated Revolving Credit Borrowing" if such Revolving Credit Loans are
Syndicated Revolving Credit Loans or a "Money Market Borrowing" if such
Revolving Credit Loans are Money Market Loans. A Syndicated Revolving Credit
Borrowing is a "Euro-Dollar Borrowing" if such Revolving Credit Loans are made
as Euro-Dollar Loans and a "Base Rate Borrowing" if such Revolving Credit Loans
are made as Base Rate Loans.
- 15 -
"Revolving Credit Commitment" means with respect to each Bank, (i) the
amount designated as the Revolving Credit Commitment set forth opposite the
name of such Bank on the signature pages hereof, or (ii) as to any Bank which
enters into an Assignment and Acceptance (whether as transferor Bank or as
Assignee thereunder), the amount of such Bank's Revolving Credit Commitment
after giving effect to such Assignment and Acceptance, in each case as such
amount may be reduced from time to time pursuant to Sections 2.08 and 2.09.
"Revolving Credit Maturity Date" shall mean May 31, 2002.
"Stations" means collectively (i) KPHO-TV, a VHF broadcasting station
licensed to Phoenix, Arizona, and serving the Phoenix market, (ii) WOFL-TV, a
UHF broadcasting station licensed to Orlando, Florida, and serving the Orlando-
Daytona-Melbourne-Cocoa-Claremont market; (iii) KCTV, a VHF broadcasting
station licensed to Kansas City, Missouri, and serving the Kansas City market;
(iv) WSMV-TV, a VHF broadcasting station licensed to Nashville, Tennessee, and
serving the Nashville market; (v) WNEM-TV, a VHF broadcasting station licensed
to Bay City, Michigan, and serving the Saginaw-Bay City-Flint market; (vi)
KVVU-TV, a VHF broadcasting station licensed to Henderson, Nevada, and serving
the Las Vegas-Henderson market; (vii) WOGX-TV, a UHF broadcasting station
licensed to Ocala, Florida, and serving the Ocala-Gainesville market; (viii)
WHNS-TV, a UHF broadcasting station licensed to Asheville, North Carolina, and
serving the Asheville, North Carolina-Greenville, South Carolina, market; (ix)
KPDX, a UHF broadcasting station licensed to Vancouver, Washington, and serving
the Portland, Oregon, market; (x) WFSB, a VHF broadcasting station licensed to
Hartford, Connecticut, and serving the Hartford-New Haven, Connecticut market;
(xi) KFXO-LP, a low power broadcasting station licensed to Bend, Oregon, and
serving the Bend, Oregon market; and (xii) any and all television, radio or
other broadcasting stations, now or hereafter acquired or controlled, directly
or indirectly, by the Borrower.
"Subsidiary" means any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Borrower.
"Syndicated Revolving Credit Loan" means a Base Rate Loan or a Euro-Dollar
Loan made under the Revolving Credit Commitment and Syndicated Revolving
Credit Loans means Base Rate Loans or Euro-Dollar Loans made under the
Revolving Credit Commitment, or any or all of them, as the context shall
require.
"Syndicated Revolving Credit Notes" means promissory notes of the
Borrower, substantially in the form of Exhibit A hereto, evidencing the
obligation of the Borrower to repay the Syndicated Revolving Credit Loans,
together with all amendments, consolidations, modifications, renewals and
- 16 -
supplements thereto and "Syndicated Revolving Credit Note" means any one of
such Syndicated Revolving Credit Notes.
"Term Loans" means the loans made by the Banks under the Term Loan
Commitments and "Term Loan" means any one of such Term Loans. Except as may be
required pursuant to Section 2.06(g).
"Term Loan Borrowing" shall mean a borrowing under the Term Loan
Commitments consisting of Term Loans made to the Borrower at the same time by
the Banks pursuant to Article II. A Term Loan Borrowing is a "Euro-Dollar
Borrowing" if such Term Loans are made as Euro-Dollar Loans and a "Base Rate
Borrowing" if such Term Loans are made as Base Rate Loans.
"Term Loan Commitment" means, with respect to each Bank, (i) the amount
designated as the Term Loan Commitment set forth opposite the name of such Bank
on the signature pages hereof, or (ii) as to any Bank which enters into an
Assignment and Acceptance (whether as transferor Bank or as Assignee
thereunder), the amount of such Bank's Term Loan Commitment after giving effect
to such Assignment and Acceptance, in each case as such amount may be reduced
from time to time pursuant to Section 2.09.
"Term Loan Commitment Reduction Date" means each May 31, 1998, May 31,
1999, May 31, 2000, May 31, 2001, and May 31, 2002.
"Term Loan Funding Date" means the earliest of the following dates: (i)
November 30, 1997; (ii) the date on which the Borrower terminates the Term Loan
Commitments; and (iii) the date on which the first Term Loan is advanced by the
Banks.
"Term Loan Maturity Date" means May 31, 2002.
"Term Loan Notes" means promissory notes of the Borrower, substantially in
the form of Exhibit B hereto, evidencing the obligation of the Borrower to
repay the Term Loans, together with all amendments, consolidations,
modifications, renewals and supplements thereto and "Term Note" means any one
of such Term Notes.
"Third Parties" means all lessees, sublessees, licensees and other users
of the Properties, excluding those users of the Properties in the ordinary
course of the Borrower's business and on a temporary basis.
"Total Assets" of any Person means, at any time, the total assets of such
Person, as set forth or reflected or as should be set forth or reflected on the
most recent balance sheet of such Person, prepared in accordance with GAAP.
- 17 -
"Total Unused Revolving Credit Commitments" means at any date, an amount
equal to: (i) the aggregate amount of the Revolving Credit Commitments of all
of the Banks at such time, less (ii) the aggregate outstanding principal amount
of the Revolving Credit Loans of all of the Banks at such time.
"Transferee" has the meaning set forth in Section 9.07(d).
"Unencumbered Total Assets" of any Person means, at any time, Total Assets
of such Person which are subject to any arrangement specified in 12 CFR Section
221.2(g)(1).
"Unused Fee Determination Date" has the meaning set forth in Section
2.07(b).
"Unused Fee Payment Date" means each April 1, July 1, October 1 and
January 1.
"Unused Revolving Credit Commitment" means at any date, with respect to
any Bank, an amount equal to its Revolving Credit Commitment less the aggregate
outstanding principal amount of its Revolving Credit Loans.
"Wachovia" means Wachovia Bank, N.A., a national banking association and
its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the shares of
capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the
Borrower.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all terms of an accounting character used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries
delivered to the Banks, unless with respect to any such change concurred in by
the Borrower's independent public accountants or required by GAAP, in
determining compliance with any of the provisions of this Agreement or any of
the other Loan Documents: (i) the Borrower shall have objected to determining
such compliance on such basis at the time of delivery of such financial
statements, or (ii) the Required Banks shall so object in writing within 30
days after the delivery of such financial statements, in either of which events
such calculations shall be made on a basis consistent with those used in the
preparation of the latest financial statements as to which such objection shall
- 18 -
not have been made (which, if objection is made in respect of the first
financial statements delivered under Section 5.01 hereof, shall mean the
financial statements referred to in Section 4.04).
SECTION 1.03. Use of Defined Terms. All terms defined in this Agreement
shall have the same meanings when used in any of the other Loan Documents,
unless otherwise defined therein or unless the context shall otherwise require.
SECTION 1.04. Terminology. All personal pronouns used in this Agreement,
whether used in the masculine, feminine or neuter gender, shall include all
other genders; the singular shall include the plural and the plural shall
include the singular. Titles of Articles and Sections in this Agreement are
for convenience only, and neither limit nor amplify the provisions of this
Agreement.
SECTION 1.05. References. Unless otherwise indicated, references in this
Agreement to "Articles", "Exhibits", "Schedules", and "Sections" are references
to articles, exhibits, schedules and sections hereof.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend.
(a) Syndicated Revolving Credit Loans. Each Bank severally agrees, on
the terms and conditions set forth herein, to make Syndicated Revolving Credit
Loans to the Borrower from time to time before the Revolving Credit Maturity
Date; provided that, immediately after each such Syndicated Revolving Credit
Loan is made, the aggregate outstanding principal amount of Syndicated
Revolving Credit Loans by such Bank shall not exceed the amount of its
Revolving Credit Commitment, provided further that the aggregate principal
amount of all Syndicated Revolving Credit Loans together with the aggregate
principal amount of all Money Market Loans, at any one time outstanding shall
not exceed the aggregate amount of the Revolving Credit Commitments of all of
the Banks at such time. Each Syndicated Revolving Credit Borrowing that is a
Euro-Dollar Borrowing under this Section shall be in an aggregate principal
amount of $5,000,000 or any larger multiple of $1,000,000 and each Syndicated
Revolving Credit Borrowing that is a Base Rate Borrowing under this Section
shall be in an aggregate principal amount of $1,000,000 or any larger multiple
of $500,000 (except that any such Syndicated Revolving Credit Borrowing may be
in the aggregate amount of the Unused Revolving Credit Commitments) and shall
be made from the several Banks ratably in proportion to their respective
Revolving Credit Commitments. Within the foregoing limits, the Borrower may
borrow under this Section 2.01(a), repay or, to the extent permitted by Section
- 19 -
2.10, prepay Syndicated Revolving Credit Loans and reborrow under this Section
2.01(a) at any time before the Revolving Credit Maturity Date.
(b) The Term Loans. Each Bank severally agrees, on the terms and
conditions set forth herein, to make Term Loans to the Borrower from time to
time before the Term Loan Maturity Date; provided that, (i) each Bank's Term
Loan Commitment shall be advanced, if at all, in one advance made on the Term
Loan Funding Date; and (ii) immediately after each Term Loan is made, the
aggregate outstanding principal amount of the Term Loans by such Bank shall not
exceed such Bank's Term Loan Commitment, provided further that the aggregate
principal amount of all Term Loans at any one time outstanding shall not exceed
the aggregate amount of the Term Loan Commitments of all of the Banks at such
time. Each Term Loan Borrowing that is a Euro-Dollar Borrowing under this
Section shall be in an aggregate principal amount of $5,000,000 or any larger
multiple of $1,000,000 and each Term Loan Borrowing that is a Base Rate
Borrowing under this Section shall be in an aggregate principal amount of
$1,000,000 or any larger multiple of $500,000 and shall be made from the
several Banks ratably in proportion to their respective Term Loan Commitments.
Within the foregoing limits, the Borrower may borrow under this Section 2.01
(b), repay or, to the extent permitted by Section 2.10, repay Term Loans and
reborrow under this Section 2.01 (b) at any time before the Term Loan Maturity
Date; provided, however, that after the Term Loan Funding Date: (i) the
proceeds of any Term Loan Borrowing shall be used exclusively for the purpose
of repaying Term Loans maturing on the date of such Term Loan Borrowing and for
no other purpose; and (ii) the ability to reborrow may be limited by the
provisions of Section 2.09 hereof.
SECTION 2.02. Method of Borrowing Syndicated Revolving Credit Loans and
Term Loans. (a) The Borrower shall give the Agent notice in the form attached
hereto as Exhibit L (a "Notice of Borrowing") prior to 11:00 A.M. (Atlanta,
Georgia time) on the Domestic Business Day of each Base Rate Borrowing and at
least 3 Euro-Dollar Business Days before each Euro-Dollar Borrowing,
specifying:
(i) whether such borrowing constitutes a Syndicated Revolving Credit
Borrowing or Term Loan Borrowing and the date of such borrowing, which
shall be a Domestic Business Day in the case of a Base Rate Borrowing or a
Euro-Dollar Business Day in the case of a Euro-Dollar Borrowing;
(ii) the aggregate amount of the Syndicated Revolving Credit
Borrowing or Term Loan Borrowing, as the case may be; and
(iii) whether the Term Loans comprising a Term Loan Borrowing or the
Revolving Credit Loans comprising a Syndicated Revolving Credit Borrowing
are to be Base Rate Loans or Euro-Dollar Loans, and the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
- 20 -
(b) Upon receipt of a Notice of Borrowing, the Agent shall promptly
notify each Bank of the contents thereof and of such Bank's ratable share of
such Syndicated Revolving Credit Borrowing or Term Loan Borrowing, as the case
may be, and such Notice of Borrowing shall not thereafter be revocable by the
Borrower.
(c) Not later than 12:00 P.M. (Atlanta, Georgia time) on the date of each
Syndicated Revolving Credit Borrowing or Term Loan Borrowing, as the case may
be, referenced in the Notice of Borrowing, each Bank shall (except as provided
in subsection (d) of this Section) make available its ratable share of such
Syndicated Revolving Credit Borrowing or Term Loan Borrowing, as the case may
be, in Federal or other funds immediately available in Atlanta, Georgia, to the
Agent at its address referred to in or specified pursuant to Section 9.01.
Unless the Agent determines that any applicable condition specified in Article
III has not been satisfied, the Agent will make the funds so received from the
Banks available to the Borrower at the Agent's aforesaid address. Unless the
Agent receives notice from a Bank, at the Agent's address referred to in
Section 9.01, no later than 4:00 P.M. (local time at such address) on the
Domestic Business Day before the date of the applicable Syndicated Revolving
Credit Borrowing or Term Loan Borrowing stating that such Bank will not make
the applicable Syndicated Revolving Credit Loan or Term Loan in connection with
such Syndicated Revolving Credit Borrowing or Term Loan Borrowing, as the case
may be, the Agent shall be entitled to assume that such Bank will make the
Revolving Credit Loan or Term Loan in connection with such Syndicated Revolving
Credit Borrowing or Term Loan Borrowing and, in reliance on such assumption,
the Agent may (but shall not be obligated to) make available such Bank's
ratable share of such Syndicated Revolving Credit Borrowing or Term Loan
Borrowing, as the case may be, to the Borrower for the account of such Bank.
If the Agent makes such Bank's ratable share available to the Borrower and such
Bank does not in fact make its ratable share of such Syndicated Revolving
Credit Borrowing or Term Loan Borrowing, as the case may be, available on such
date, the Agent shall be entitled to recover such Bank's ratable share from
such Bank or the Borrower (and for such purpose shall be entitled to charge
such amount to any account of the Borrower with the Agent), together with
interest thereon for each day during the period from the date of such
Syndicated Revolving Credit Borrowing or Term Loan Borrowing, as the case may
be, until such sum shall be paid in full at a rate per annum equal to the rate
at which the Agent determines that it obtained (or could have obtained)
overnight Federal funds to cover such amount for each such day during such
period, provided that any such payment by the Borrower of such Bank's ratable
share and interest thereon shall be without prejudice to any rights that the
Borrower may have against such Bank. If such Bank shall repay to the Agent
such corresponding amount, such amount so repaid shall constitute such Bank's
Syndicated Revolving Credit Loan or Term Loan, as the case may be, included in
such borrowing for purposes of this Agreement.
- 21 -
(d) If any Bank makes: (i) a new Syndicated Revolving Credit Loan
hereunder on a day on which the Borrower is to repay all or any part of an
outstanding Syndicated Revolving Credit Loan from such Bank or (ii) a new Term
Loan hereunder on a day on which the Borrower is to repay all or any part of an
outstanding Term Loan from such Bank, such Bank shall apply the proceeds of its
new Syndicated Revolving Credit Loan or Term Loan, as the case may be, to make
such repayment and only an amount equal to the difference (if any) between the
amount being borrowed and the amount being repaid shall be made available by
such Bank to the Agent as provided in subsection (c) of this Section, or
remitted by the Borrower to the Agent as provided in Section 2.12, as the case
may be.
(e) Notwithstanding anything to the contrary contained in this Agreement,
no Euro-Dollar Borrowing may be made if there shall have occurred a Default or
an Event of Default, which Default or Event of Default shall not have been
cured or waived in writing.
(f) In the event that a Notice of Borrowing fails to specify whether the
Revolving Credit Loans comprising such Syndicated Revolving Credit Borrowing
are to be Base Rate Loans or Euro-Dollar Loans, such Revolving Credit Loans
shall be made as Base Rate Loans. If the Borrower is otherwise entitled under
this Agreement to repay any Revolving Credit Loans maturing at the end of an
Interest Period applicable thereto with the proceeds of a new Revolving Credit
Borrowing and the Borrower fails to repay such Revolving Credit Loans using its
own moneys and fails to give a Notice of Borrowing in connection with a new
corresponding Revolving Credit Borrowing, a new Revolving Credit Borrowing
shall be deemed to be made on the date such Revolving Credit Loans mature in an
amount equal to the principal amount of the Revolving Credit Loans so maturing,
and the Revolving Credit Loans comprising such new Revolving Credit Borrowing
shall be Base Rate Loans.
(g) Notwithstanding anything to the contrary contained herein, (i) there
shall not be more than ten (10) different Interest Periods outstanding at the
same time (for which purpose Interest Periods described in different numbered
clauses of the definition of the term "Interest Period" shall be deemed to be
different Interest Periods even if they are coterminous) applicable to the
Syndicated Revolving Credit Loans and Term Loans; (ii) there shall not be more
than eight (8) different Interest Periods outstanding at the same time (for
which purpose Interest Periods described in different numbered clauses of the
definition of the term "Interest Period" shall be deemed to be different
Interest Periods even if they are coterminous) applicable to the Syndicated
Revolving Credit Loans and Term Loans that are Euro-Dollar Loans; (iii) the
proceeds of any Term Loan Borrowing that is a Base Rate Borrowing shall be
applied first to repay the unpaid principal amount of all Term Loan Borrowings
that are Base Rate Loans (if any) outstanding immediately before such Term Loan
Borrowing; and (iv) the proceeds of any Syndicated Revolving Credit Borrowing
- 22 -
that is a Base Rate Borrowing shall be applied first to repay the unpaid
principal amount of all Syndicated Revolving Credit Borrowings that are Base
Rate Loans (if any) outstanding immediately before such Syndicated Base Rate
Borrowing.
SECTION 2.03. Money Market Loans. (a) In addition to making Syndicated
Revolving Credit Borrowings, the Borrower may, as set forth in this Section,
request the Banks to make offers to make Money Market Loans to the Borrower.
The Banks may, but shall have no obligation to, make such offers and the
Borrower may, but shall have no obligation to, accept any such offers in the
manner set forth in this Section, provided that the aggregate principal amount
of all Money Market Loans, together with the aggregate principal amount of all
Syndicated Revolving Credit Loans, at any one time outstanding shall not exceed
the aggregate amount of the Revolving Credit Commitments of all of the Banks at
such time.
(b) When the Borrower wishes to request offers to make Money Market
Loans, it shall give the Agent (which shall promptly notify the Banks) notice
substantially in the form of Exhibit F hereto (a "Money Market Quote Request")
so as to be received no later than 11:00 A.M. (Atlanta, Georgia time) one
Domestic Business Day prior to the date of the Money Market Borrowing proposed
therein (or such other time and date as the Borrower and the Agent, with the
consent of the Required Banks, may agree), specifying:
(i) the proposed date of such Money Market Borrowing, which shall be
a Domestic Business Day (the "Quotation Date");
(ii) the aggregate amount of such Money Market Borrowing, which
shall be at least $5,000,000 (and in larger multiples of $1,000,000) but
shall not cause the limits specified in Section 2.03(a) to be violated;
and
(iii) the duration of the Interest Period applicable thereto, which
shall be 7 to 365 days.
The Borrower may request offers to make Money Market Loans for up to three
different Interest Periods in a single Money Market Quote Request; provided
that the request for each separate Interest Period shall be deemed to be a
separate Money Market Quote Request for a separate Money Market Borrowing.
Except as otherwise provided in the immediately preceding sentence, the
Borrower shall not deliver a Money Market Quote Request more frequently than
once every 5 Domestic Business Days.
(c) (i) Each Bank may, but shall have no obligation to, submit a
Money Market Quote containing an offer to make a Money Market Loan in
response to any Money Market Quote Request; provided that, if the
Borrower's request under Section 2.03(b) specified more than one Interest
- 23 -
Period, such Bank may, but shall have no obligation to, make a single
submission containing a separate offer for each such Interest Period and
each such separate offer shall be deemed to be a separate Money Market
Quote. Each Money Market Quote must be submitted to the Agent not later
than 10:00 A.M. (Atlanta, Georgia time) on the Quotation Date (or such
other time and date as the Borrower and the Agent, with the consent of the
Required Banks, may agree); provided that any Money Market Quote submitted
by Wachovia may be submitted, and may only be submitted, if Wachovia
notifies the Borrower of the terms of the offer contained therein not
later than 9:45 A.M. (Atlanta, Georgia time) on the Quotation Date.
Subject to Section 6.01, any Money Market Quote so made shall be
irrevocable except with the written consent of the Agent given on the
instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially the form of
Exhibit G hereto and shall specify:
(A) the proposed date of the Money Market Borrowing and the
duration of the Interest Period therefor, which shall be 7 to 365
days;
(B) the maximum principal amount of the Money Market Loan which
the quoting Bank is willing to make for the applicable Interest
Period, which principal amount (x) may be greater than or less than
the Revolving Credit Commitment of the quoting Bank, (y) shall be at
least $5,000,000 or a larger multiple of $1,000,000, and (z) may not
exceed the principal amount of the Money Market Borrowing for which
offers were requested;
(C) the rate of interest per annum (rounded, if necessary, to
the nearest 1/100th of 1%) (the "Money Market Rate") offered for each
such Money Market Loan; and
(D) the identity of the quoting Bank.
Unless otherwise agreed by the Agent and the Borrower, no Money Market
Quote shall contain qualifying, conditional or similar language or propose
terms other than or in addition to those set forth in the applicable Money
Market Quote Request (other than setting forth the maximum principal
amount of the Money Market Loan which the quoting Bank is willing to make
for the applicable Interest Period).
(d) The Agent shall as promptly as practicable after the Money Market
Quote is submitted (but in any event not later than 10:30 A.M. (Atlanta,
Georgia time)) notify the Borrower of the terms (i) of any Money Market Quote
submitted by a Bank that is in accordance with Section 2.03(c) and (ii) of any
Money Market Quote that amends, modifies or is otherwise inconsistent with a
- 24 -
previous Money Market Quote submitted by such Bank with respect to the same
Money Market Quote Request. Any such subsequent Money Market Quote shall be
disregarded by the Agent unless such subsequent Money Market Quote is submitted
solely to correct a manifest error in such former Money Market Quote. The
Agent's notice to the Borrower shall specify (A) the maximum aggregate
principal amount of the Money Market Borrowing for which offers have been
received and (B) the maximum principal amount and Money Market Rates so offered
by each Bank (identifying the Bank that made each Money Market Quote).
(e) Not later than 11:00 A.M. (Atlanta, Georgia time) on the Quotation
Date (or such other time and date as the Borrower and the Agent, with the
consent of the Required Banks, may agree), the Borrower shall notify the Agent
of its acceptance or nonacceptance of the offers so notified to it pursuant to
Section 2.03(d) and the Agent shall promptly notify each Bank that has
submitted a Money Market Quote. In the case of acceptance, such notice shall
specify the aggregate principal amount of offers for each Interest Period that
are accepted. The Borrower may accept any Money Market Quote in whole or in
part (provided that any Money Market Quote accepted in part from any Bank shall
not be less than the amount set forth in the Money Market Quote of such Bank as
the minimum principal amount of the Money Market Loan such Bank was willing to
make for the applicable Interest Period); provided that:
(i) the aggregate principal amount of each Money Market Borrowing may
not exceed the applicable amount set forth in the related Money Market
Quote Request;
(ii) the aggregate principal amount of each Money Market Borrowing
shall be at least $5,000,000 (and in larger multiples of $1,000,000) but
shall not cause the limits specified in Section 2.03(a) to be violated;
(iii) acceptance of offers may only be made in ascending order of
Money Market Rates; and
(iv) the Borrower may not accept any offer where the Agent has
advised the Borrower that such offer fails to comply with Section
2.03(c)(ii) or otherwise fails to comply with the requirements of this
Agreement (including, without limitation, Section 2.03(a)).
If offers are made by two or more Banks with the same Money Market Rates for a
greater aggregate principal amount than the amount in respect of which offers
are accepted for the related Interest Period, the principal amount of Money
Market Loans in respect of which such offers are accepted shall be allocated by
the Borrower among such Banks as nearly as possible (in multiples of $100,000)
in proportion to the aggregate principal amount of such offers. Determinations
by the Borrower of the amounts of Money Market Loans shall be conclusive in the
absence of manifest error.
- 25 -
(f) Any Bank whose offer to make any Money Market Loan has been accepted
shall, not later than 12:00 P.M. (Atlanta, Georgia time) on the Quotation Date,
make the amount of such Money Market Loan available to the Agent at its address
referred to in Section 9.01 in immediately available funds. The amount so
received by the Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower on such date by depositing the
same, in immediately available funds, in an account of such Borrower maintained
with Wachovia.
SECTION 2.04. Notes. (a) The Syndicated Revolving Credit Loans of each
Bank shall be evidenced by a single Syndicated Revolving Credit Note payable to
the order of such Bank for the account of its Lending Office in an amount equal
to the original principal amount of such Bank's Revolving Credit Commitment.
(b) The Money Market Loans made by any Bank to the Borrower shall be
evidenced by a single Money Market Note payable to the order of such Bank for
the account of its Lending Office.
(c) The Term Loan of each Bank shall be evidenced by a single Term Loan
Note payable to the order of such Bank for the account of its Lending Office in
an amount equal to the original principal amount of such Bank's Term Loan
Commitment.
(d) Upon receipt of each Bank's Notes pursuant to Section 3.01, the Agent
shall deliver such Notes to such Bank. Each Bank shall record, and prior to
any transfer of its Notes shall endorse on the schedule forming a part thereof
appropriate notations to evidence, the date, amount and maturity of, and
effective interest rate for, each Syndicated Revolving Credit Loan, Money
Market Loan or Term Loan, as the case may be, made by it, the date and amount
of each payment of principal made by the Borrower with respect thereto and
whether, in the case of such Bank's Syndicated Revolving Credit Note or Term
Loan Note, such Syndicated Revolving Credit Loan or Term Loan, as the case may
be, is a Base Rate Loan or Euro-Dollar Loan, and such schedule shall constitute
rebuttable presumptive evidence of the principal amount owing and unpaid on
such Bank's Notes; provided that the failure of any Bank to make, or any error
in making, any such recordation or endorsement shall not affect the obligation
of the Borrower hereunder or under the Notes or the ability of any Bank to
assign its Notes. Each Bank is hereby irrevocably authorized by the Borrower
so to endorse its Notes and to attach to and make a part of any Note a
continuation of any such schedule as and when required.
SECTION 2.05. Maturity of Revolving Credit Loans and Term Loans.
(a) Revolving Credit Loans. Each Revolving Credit Loan included in any
Revolving Credit Borrowing shall mature, and the principal amount thereof shall
be due and payable, on the first to occur of: (i) the last day of the Interest
- 26 -
Period applicable to such Revolving Credit Borrowing; or (ii) the Revolving
Credit Maturity Date; provided, however, that the aggregate outstanding
principal amount of all Revolving Credit Loans at any one time outstanding
shall not exceed the aggregate amount of the Revolving Credit Commitments of
all of the Banks at such time.
(b) Term Loans. Each Term Loan included in any Term Loan Borrowing shall
mature, and the principal amount thereof shall be due and payable, on the first
to occur of: (i) the last day of the Interest Period applicable to such Term
Loan Borrowing; or (ii) the Term Loan Maturity Date; provided, however, that
the aggregate outstanding principal amount of all Term Loans at any one time
outstanding shall not exceed the aggregate amount of the Term Loan Commitments
of all of the Banks at such time.
SECTION 2.06. Interest Rates. (a) "Applicable Margin" shall be
determined quarterly based upon the ratio of Consolidated Funded Debt to EBITDA
(calculated as of the last day of each Fiscal Quarter), as follows:
If the Ratio of Syndicated
Consolidated Term Loans Revolving Credit
Funded Debt Base that are Loans that are
to EBITDA is: Rate Loans Euro-Dollar Loans Euro-Dollar Loans
- --------------- ---------- ----------------- -----------------
Greater than or
equal to 3.00 0% .50% .35%
Greater than or
equal to 2.50 but
less than 3.00 0% .375% .25%
Greater than or
equal to 2.00 but
less than 2.50 0% .30% .20%
Greater than or
equal to 1.50 but
less than 2.0 0% .25% .17%
Less than 1.5 0% .20% .13%
The Applicable Margin shall be determined effective as of the date (herein, the
"Rate Determination Date") which is 50 days after the last day of the Fiscal
Quarter as of the end of which the foregoing ratios are being determined, based
- 27 -
on the quarterly financial statements for such Fiscal Quarter, and the
Applicable Margin so determined shall remain effective from such Rate
Determination Date until the date which is 50 days after the last day of the
Fiscal Quarter in which such Rate Determination Date falls (which latter date
shall be a new Rate Determination Date); provided that (y) for the period from
and including the Closing Date to but excluding the Rate Determination Date
next following the Closing Date, the Applicable Margin shall be (A) 0% for Base
Rate Loans, and (B) (y) .20% for Term Loans that are Euro-Dollar Loans; and
(z).13% for Syndicated Revolving Credit Loans that are Euro-Dollar Loans, (ii)
in the case of any Applicable Margin determined for the fourth and final Fiscal
Quarter of a Fiscal Year, the Rate Determination Date shall be the date which
is 100 days after the last day of such final Fiscal Quarter and such Applicable
Margin shall be determined based upon the annual audited financial statements
for the Fiscal Year ended on the last day of such final Fiscal Quarter, and
(iii) if on any Rate Determination Date the Borrower shall have failed to
deliver to the Banks the financial statements required to be delivered pursuant
to Section 5.01(a) or Section 5.01(b) with respect to the Fiscal Year or
Quarter, as the case maybe, most recently ended prior to such Rate
Determination Date, then for the period beginning on such Rate Determination
Date and ending on the earlier of (A) the date on which the Borrower shall
deliver to the Banks the financial statements to be delivered pursuant to
Section 5.01(b) with respect to such Fiscal Quarter or any subsequent Fiscal
Quarter, or (B) the date on which the Borrower shall deliver to the Banks
annual financial statements required to be delivered pursuant to Section
5.01(a) with respect to the Fiscal Year which includes such Fiscal Quarter or
any subsequent Fiscal Year, the Applicable Margin shall be determined as if the
ratio of Consolidated Funded Debt to EBITDA was more than 3.00 at all times
during such period. Any change in the Applicable Margin on any Rate
Determination Date shall result in a corresponding change, effective on and as
of such Rate Determination Date, in the interest rate applicable to each
Syndicated Revolving Credit Loan and Term Loan outstanding on such Rate
Determination Date; provided that: (i) for Euro-Dollar Loans, changes in
Applicable Margin shall only be effective for Interest Periods commencing on or
after the Rate Determination Date; and (ii) no Applicable Margin shall be
decreased pursuant to this Section 2.06 if a Default is in existence on the
Rate Determination Date.
(b) Each Term Loan and Revolving Credit Loan that is a Base Rate Loan
shall bear interest on the outstanding principal amount thereof, for each day
from the date such Base Rate Loan is made until it becomes due, at a rate per
annum equal to the Base Rate for such day plus the Applicable Margin. Such
interest shall be payable on the Interest Payment Date immediately following
the last day of such Interest Period. Any overdue principal of and, to the
extent permitted by applicable law, overdue interest on any Base Rate Loan
shall bear interest, payable on demand, for each day until paid at a rate per
annum equal to the Default Rate.
- 28 -
(c) Each Term Loan and Revolving Credit Loan that is a Euro-Dollar Loan
shall bear interest on the outstanding principal amount thereof, for the
Interest Period applicable thereto, at a rate per annum equal to the sum of the
Applicable Margin plus the applicable Adjusted London Interbank Offered Rate
for such Interest Period; provided that if any Euro-Dollar Loan shall, as a
result of clause (1)(c) of the definition of Interest Period, have an Interest
Period of less than one month, such Euro-Dollar Loan shall bear interest during
such Interest Period at the rate applicable to Base Rate Loans during such
period. Such interest shall be payable for each Interest Period on the last
day thereof and, if such Interest Period is longer than 3 months, on each
Interest Payment Date during such Interest Period. Any overdue principal of
and, to the extent permitted by applicable law, overdue interest on any Euro-
Dollar Loan shall bear interest, payable on demand, for each day until paid at
a rate per annum equal to the Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upward,
if necessary, to the next higher 1/100th of 1%) by dividing (i) the applicable
London Interbank Offered Rate for such Interest Period by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Euro-Dollar Loan
means for the Interest Period of such Euro-Dollar Loan the rate per annum
determined on the basis of the rate for deposits in Dollars of amounts equal or
comparable to the principal amount of such Euro-Dollar Loan offered for a term
comparable to such Interest Period, which rate appears on the display
designated as Page "3750" of the Telerate Service (or such other page as may
replace page 3750 of that service or such other service or services as may be
nominated by the British Banker's Association for the purpose of displaying
London Interbank Offered Rates for U.S. dollar deposits) determined as of 1:00
p.m. New York City time, 2 Euro-Dollar Business Days prior to the first day of
such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents). The Adjusted London Interbank Offered
Rate shall be adjusted automatically on and as of the effective date of any
change in the Euro-Dollar Reserve Percentage.
- 29 -
(d) Each Money Market Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a rate
per annum equal to the Money Market Rate for such Money Market Loan quoted by
the Bank making such Money Market Loan in accordance with Section 2.03. Such
interest shall be payable for such Interest Period on the last day thereof and,
if such Interest Period is longer than 90 days, on each Interest Payment Date
during such Interest Period. Any overdue principal of and, to the extent
permitted by law, overdue interest on any Money Market Loan shall bear
interest, payable on demand, for each day until paid at a rate per annum equal
to the Default Rate.
(e) The Agent shall determine each interest rate applicable to the Term
Loans and Revolving Credit Loans hereunder. The Agent shall give prompt notice
to the Borrower and the Banks by telecopy of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
(f) After the occurrence and during the continuance of a Default, the
principal amount of the Term Loans and Revolving Credit Loans (and, to the
extent permitted by applicable law, all accrued interest thereon) may, at the
election of the Required Banks, bear interest at the Default Rate; provided,
however, that automatically whether or not the Required Banks elect to do so,
any overdue principal of and, to the extent permitted by law, overdue interest
on any Term Loan and on any Revolving Credit Loan shall bear interest payable
on demand, for each day until paid at a rate per annum equal to the Default
Rate.
(g) Notwithstanding anything herein to the contrary, if one or more Term
Loan Commitment Reduction Dates are scheduled to occur during an Interest
Period in which the Term Loans are Euro-Dollar Loans other than on the last day
of such Interest Period, then during such Interest Period a portion of the
outstanding balance of the Term Loans which is equal to the aggregate amount of
the principal payment due on the Term Loans on such Term Loan Commitment
Reduction Dates shall be Base Rate Loans, and only the remaining portion of the
outstanding principal of the Term Loans shall constitute Euro-Dollar Loans.
SECTION 2.07. Fees. (a) The Borrower shall pay to the Agent for the
ratable account of each Bank a facility fee equal to the product of: (i) the
aggregate of the daily average amounts of such Bank's Revolving Credit
Commitment, times (ii) a per annum percentage equal to the Applicable Facility
Fee Rate. Such facility fee shall accrue from and including the Closing Date
to and including the Revolving Credit Maturity Date. Facility fees shall be
payable quarterly in arrears on the first Facility Fee Payment Date following
each Facility Fee Determination Date and on the Revolving Credit Maturity Date;
provided that should the Revolving Credit Commitments be terminated at any time
prior to the Revolving Credit Maturity Date for any reason, the entire accrued
- 30 -
and unpaid facility fee shall be paid on the date of such termination. The
"Applicable Facility Fee Rate" shall be determined quarterly based upon the
ratio of Consolidated Funded Debt to EBITDA (calculated as of the last day of
each Fiscal Quarter) as follows:
If the Ratio of Consolidated Applicable
Funded Debt to EBITDA is Facility Fee Rate
---------------------------- -----------------
Greater than or equal to 3.00 .15%
Greater than or equal to 2.50 .125%
but less than 3.00
Greater than or equal to 2.00
but less than 2.50 .100%
Greater than or equal to 1.5
but less than 2.0 .08%
Less than 1.5 .07%
The Applicable Facility Fee Rate shall be determined effective as of the date
(herein, the "Facility Fee Determination Date") which is 50 days after the last
day of the Fiscal Quarter as of the end of which the foregoing ratio is being
determined, based on the quarterly financial statements for such Fiscal
Quarter, and the Applicable Facility Fee Rate so determined shall remain
effective from such Facility Fee Determination Date until the date which is 50
days after the last day of the Fiscal Quarter in which such Facility Fee
Determination Date falls (which latter date shall be a new Facility Fee
Determination Date); provided that (i) for the period from and including the
Closing Date to but excluding the Facility Fee Determination Date next
following the Closing Date, the Applicable Facility Fee Rate shall be .07%;
(ii) in the case of any Applicable Facility Fee Rate determined for the fourth
and final Fiscal Quarter of a Fiscal Year, the Facility Fee Determination Date
shall be the date which is 100 days after the last day of such final Fiscal
Quarter and such Applicable Facility Fee Rate shall be determined based upon
the annual audited financial statements for the Fiscal Year ended on the last
day of such final Fiscal Quarter, and (iii) if on any Facility Fee
Determination Date the Borrower shall have failed to deliver to the Banks the
financial statements required to be delivered pursuant to Section 5.01(a) or
Section 5.01(b) with respect to the Fiscal Year or Fiscal Quarter, as the case
may be, most recently ended prior to such Facility Fee Determination Date, then
for the period beginning on such Facility Fee Determination Date and ending on
- 31 -
the earlier of (A) the date on which the Borrower shall deliver to the Banks
the financial statements to be delivered pursuant to Section 5.01(b) with
respect to such Fiscal Quarter or any subsequent Fiscal Quarter, and (B) the
date on which the Borrower shall deliver to the Banks annual financial
statements required to be delivered pursuant to Section 5.01(a) with respect to
the Fiscal Year which includes such Fiscal Quarter or any subsequent Fiscal
Year, the Applicable Facility Fee Rate shall be determined as if the ratio of
Consolidated Funded Debt to EBITDA was more than 3.00 at all times during such
period.
(b) The Borrower shall pay to the Agent for the ratable account of each
Bank an unused fee equal to the product of: (i) the aggregate of the daily
average amounts of such Bank's Term Loan Commitment, times (ii) a per annum
percentage equal to the Applicable Unused Fee Rate. Such unused fee shall
accrue from and including the Closing Date to and including the Term Loan
Funding Date. Unused fees shall be payable quarterly in arrears on the first
Unused Fee Payment Date following each Unused Fee Determination Date and on the
Term Loan Funding Date, provided that should the Term Loan Commitments be
terminated at any time prior to the Term Loan Funding Date for any reason, the
entire accrued and unpaid unused fee shall be paid on the date of such
termination. The "Applicable Unused Fee Rate" shall be determined quarterly
based upon the ratio of Consolidated Funded Debt to EBITDA (calculated as of
the last day of each Fiscal Quarter) as follows:
If the Ratio of Consolidated Applicable
Funded Debt to EBITDA is Unused Fee Rate
---------------------------- ---------------
Greater than or equal to 3.00 .15%
Greater than or equal to 2.50 .125%
but less than 3.00
Greater than or equal to 2.00
but less than 2.50 .100%
Greater than or equal to 1.5
but less than 2.0 .08%
Less than 1.5 .07%
The Applicable Unused Fee Rate shall be determined effective as of the date
(herein, the "Unused Fee Determination Date") which is 50 days after the last
day of the Fiscal Quarter as of the end of which the foregoing ratio is being
- 32 -
determined, based on the quarterly financial statements for such Fiscal
Quarter, and the Applicable Unused Fee Rate so determined shall remain
effective from such Unused Fee Determination Date until the date which is 50
days after the last day of the Fiscal Quarter in which such Unused Fee
Determination Date falls (which latter date shall be a new Unused Fee
Determination Date); provided that (i) for the period from and including the
Closing Date to but excluding the Unused Fee Determination Date next following
the Closing Date, the Applicable Unused Fee Rate shall be .07%; (ii) in the
case of any Applicable Unused Fee Rate determined for the fourth and final
Fiscal Quarter of a Fiscal Year, the Unused Fee Determination Date shall be the
date which is 100 days after the last day of such final Fiscal Quarter and such
Applicable Unused Fee Rate shall be determined based upon the annual audited
financial statements of the Fiscal Year ended on the last day of such final
Fiscal Quarter, and (iii) if on any Unused Fee Determination Date the Borrower
shall have failed to deliver to the Banks the financial statements required to
be delivered pursuant to Section 5.01(a) or Section 5.01(b) with respect to the
Fiscal Year or Fiscal Quarter, as the case may be, most recently ended prior to
such Unused Fee Determination Date, then for the period beginning on such
Unused Fee Determination Date and ending on the earlier of (A) the date on
which the Borrower shall deliver to the Banks the financial statements to be
delivered pursuant to Section 5.01(b) with respect to such Fiscal Quarter or
any subsequent Fiscal Quarter, and (B) the date on which the Borrower shall
deliver to the Banks annual financial statements required to be delivered
pursuant to Section 5.01(a) with respect to the Fiscal Year which includes such
Fiscal Quarter or any subsequent Fiscal Year, the Applicable Unused Fee Rate
shall be determined as if the ratio of Consolidated Funded Debt to EBITDA was
more than 3.00 at all times during such period.
(c) The Borrower shall pay to the Agent, for the account and sole benefit
of the Agent, such fees and other amounts at such times as set forth in the
Agent's Letter Agreement.
SECTION 2.08. Optional Termination or Reduction of Revolving Credit
Commitments. The Borrower may, upon at least 3 Domestic Business Days' notice
to the Agent, terminate at any time, or proportionately reduce from time to
time by an aggregate amount of at least $5,000,000 or any larger multiple of
$1,000,000, the Revolving Credit Commitments; provided, however, no such
termination or reduction shall be in an amount greater than the Total Unused
Revolving Credit Commitments on the date of such termination or reduction. If
the Revolving Credit Commitments are terminated in their entirety, all accrued
fees (as provided under Section 2.07(a)) shall be payable on the effective date
of such termination.
- 33 -
SECTION 2.09. Mandatory Reduction and Termination of Commitments.
(a) Revolving Credit Commitments. The Revolving Credit Commitments shall
terminate on the Revolving Credit Maturity Date and any Revolving Credit Loan
then outstanding (together with accrued interest thereon) shall be due and
payable on such date.
(b) Term Loan Commitments. (1) The Term Loan Commitments shall terminate
on the Term Loan Maturity Date and any Term Loans then outstanding (together
with accrued interest thereon) shall be due and payable on such date.
(2) The aggregate amount of the Term Loan Commitments shall be reduced,
commencing on the first Term Loan Commitment Reduction Date and continuing on
each Term Loan Commitment Reduction Date thereafter until and including the
Term Loan Commitment Reduction Date on the Term Loan Maturity Date in the
amounts set forth below corresponding to the respective Term Loan Commitment
Reduction Date:
Term Loan Commitment Amount of
Reduction Date Reduction
-------------------- ---------
May 31, 1998 $25,000,000
May 31, 1999 $40,000,000
May 31, 2000 $45,000,000
May 31, 2001 $50,000,000
May 31, 2002 $50,000,000
(3) If the Borrower shall repay or prepay any Term Loans other than with
the proceeds of a new Term Loan Borrowing under the Term Loan Commitments then
there shall be a mandatory reduction of the Term Loan Commitments to an amount
equal to the aggregate principal amount of all Term Loans then outstanding
(after giving effect to such repayment or prepayment).
(4) If on the Term Loan Funding Date the Term Loan Commitments shall not
have been reduced to a lesser amount pursuant to this Section 2.09(b), then on
the Term Loan Funding Date there shall be a mandatory reduction of the Term
Loan Commitments to an amount equal to the aggregate principal amount of all
Term Loans outstanding on the Term Loan Funding Date.
(5) Each reduction of the Term Loan Commitments shall be applied to
reduce the Term Loan Commitments of the several Banks ratably. Any optional
reduction of the Term Loan Commitments shall reduce the amount of any
subsequent mandatory reductions pursuant to this Section 2.09 (b) in their
inverse chronological order of maturity; provided that any optional reduction
- 34 -
of the Term Loan Commitment occurring between March 31 and May 30 of any year,
shall first reduce the amount of the mandatory reduction pursuant to Section
2.09(b)(2) occurring on May 31 of that same year. No mandatory reduction of
the Term Loan Commitments pursuant to any paragraph of this Section 2.09 (b)
shall reduce the amount of any subsequent mandatory reduction of the Term Loan
Commitments pursuant to such paragraph or any other paragraph of this Section
2.09 (b).
SECTION 2.10. Optional Prepayments of Revolving Credit Loans and Term
Loans. (a) The Borrower may, upon at least 1 Domestic Business Day's notice
to the Agent, prepay any Revolving Credit Loan or Term Loan that is a Base Rate
Borrowing in whole at any time, or from time to time in part in amounts
aggregating at least $1,000,000 or any larger multiple of $500,000, by paying
the principal amount to be prepaid together with accrued interest thereon to
the date of prepayment. Each such optional prepayment shall be applied to
prepay ratably the Revolving Credit Loans or Term Loans, as the case may be, of
the several Banks included in such Base Rate Borrowing; provided that such
prepayment shall be applied, first, to Syndicated Revolving Credit Loans
outstanding on the date of such prepayment (in direct order of maturity), and
then, to the extent necessary, to the Term Loans outstanding on the date of
such prepayment.
(b) Except as provided in Section 8.02, the Borrower may not prepay all
or any portion of the principal amount of any Euro-Dollar Loan or any Money
Market Loan prior to the last day of an Interest Period applicable thereto.
(c) Upon receipt of a notice of prepayment pursuant to this Section, the
Agent shall promptly notify each Bank of the contents thereof and of such
Bank's ratable share of such prepayment and such notice shall not thereafter be
revocable by the Borrower.
SECTION 2.11. Mandatory Prepayments. (a) On each date on which the
Revolving Credit Commitments are reduced or terminated pursuant to Section 2.08
or Section 2.09, the Borrower shall repay or prepay such principal amount of
the outstanding Revolving Credit Loans, if any (together with interest accrued
thereon and any amounts due under Section 8.05(a)), as may be necessary so that
after such payment the aggregate unpaid principal amount of the Revolving
Credit Loans does not exceed the aggregate amount of the Revolving Credit
Commitments as then reduced. Each such payment or prepayment shall be applied
to repay or prepay ratably the Revolving Credit Loans of the several Banks;
provided that such prepayment shall be applied, first, to Syndicated Revolving
Credit Loans outstanding on the date of such prepayment (in direct order of
maturity) and then, to the extent necessary, to Money Market Loans outstanding
on the date of such prepayment (in direct order of maturity).
- 35 -
(b) On each date on which the Term Loan Commitments are reduced pursuant
to Section 2.09, the Borrower shall repay or prepay such principal amount of
the outstanding Term Loans, if any (together with interest accrued thereon and
any amounts due under Section 8.05(a)), as may be necessary so that after such
payment the aggregate unpaid principal amount of the Term Loans does not exceed
the aggregate amount of the Term Loan Commitments as then reduced. Each such
payment or prepayment shall be applied to repay or prepay ratably the Term
Loans of the several Banks.
SECTION 2.12. General Provisions as to Payments. (a) The Borrower shall
make each payment of principal of, and interest on, the Term Loans and
Revolving Credit Loans and of facility and unused fees hereunder, not later
than 11:00 A.M. (Atlanta, Georgia time) on the date when due, in Federal or
other funds immediately available in Atlanta, Georgia, to the Agent at its
address referred to in Section 9.01. The Agent will promptly distribute to
each Bank its ratable share of each such payment received by the Agent for the
account of the Banks.
(b) Whenever any payment of principal of, or interest on, the Base Rate
Loans or the Money Market Loans or of fees shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. Whenever any payment of principal of,
or interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(c) All payments of principal, interest and fees and all other amounts to
be made by the Borrower pursuant to this Agreement with respect to any Term
Loan or Revolving Credit Loan or fee relating thereto shall be paid without
deduction for, and free from, any tax, imposts, levies, duties, deductions, or
withholdings of any nature now or at anytime hereafter imposed by any
governmental authority or by any taxing authority thereof or therein excluding
in the case of each Bank, (i) taxes imposed on or measured by its net income,
(ii) franchise taxes imposed on it, by the jurisdiction under the laws of which
such Bank is organized or any political subdivision thereof, and (iii) taxes
imposed on its income, and franchise taxes imposed on it, by the jurisdiction
of such Bank's applicable Lending Office or any political subdivision thereof
(all such non-excluded taxes, imposts, levies, duties, deductions or
withholdings of any nature being "Non-excluded Taxes"). In the event that the
Borrower is required by applicable law to make any such withholding or
deduction of Non-excluded Taxes with respect to any Term Loan or Revolving
Credit Loan or fee or other amount, promptly after receiving notice thereof,
- 36 -
the Borrower shall pay such deduction or withholding to the applicable taxing
authority, shall promptly furnish to any Bank in respect of which such
deduction or withholding is made all receipts and other documents evidencing
such payment and shall pay to such Bank additional amounts as may be necessary
in order that the amount received by such Bank after the required withholding
or other payment shall equal the amount such Bank would have received had no
such withholding or other payment been made. If no withholding or deduction of
Non-excluded Taxes are payable in respect of any Term Loan or Revolving Credit
Loan or fee relating thereto, the Borrower shall furnish any Bank, at such
Bank's request, a certificate from each applicable taxing authority or an
opinion of counsel acceptable to such Bank, in either case stating that such
payments are exempt from or not subject to withholding or deduction of Non-
excluded Taxes. If the Borrower fails to provide such original or certified
copy of a receipt evidencing payment of Non-excluded Taxes or certificate(s) or
opinion of counsel of exemption, the Borrower hereby agrees to compensate such
Bank for, and indemnify them with respect to, the tax consequences of the
Borrower's failure to provide evidence of tax payments or tax exemption.
In the event any Bank receives a refund of any Non-excluded Taxes paid by
the Borrower pursuant to this Section 2.12, it will pay to the Borrower the
amount of such refund promptly upon receipt thereof; provided, however, if at
any time thereafter it is required to return such refund, the Borrower shall
promptly repay to it the amount of such refund.
Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in this
Section 2.12 shall be applicable with respect to any Participant, Assignee or
other Transferee, and any calculations required by such provisions (i) shall be
made based upon the circumstances of such Participant, Assignee or other
Transferee, and (ii) constitute a continuing agreement and shall survive the
termination of this Agreement and the payment in full or cancellation of the
Notes.
SECTION 2.13. Computation of Interest and Fees. Interest on Base Rate
Loans shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day). Interest on Euro-Dollar Loans and interest on Money Market Loans shall
be computed on the basis of a year of 360 days and paid for the actual number
of days elapsed, calculated as to each Interest Period from and including the
first day thereof to but excluding the last day thereof. Facility fees, unused
fees and any other fees payable hereunder shall be computed on the basis of a
year of 360 days and paid for the actual number of days elapsed (including the
first day but excluding the last day).
- 37 -
ARTICLE III
CONDITIONS TO BORROWINGS
SECTION 3.01. Conditions to Closing. On the Closing Date, the Borrower
shall satisfy each of the following conditions:
(a) receipt by the Agent from each of the parties hereto of either (i) a
duly executed counterpart of this Agreement signed by such party or (ii) a
facsimile transmission stating that such party has duly executed a counterpart
of this Agreement and sent such counterpart to the Agent;
(b) receipt by the Agent of a duly executed Syndicated Revolving Credit
Note, a Term Loan Note and a duly executed Money Market Note for the account of
each Bank complying with the provisions of Section 2.04;
(c) receipt by the Agent of an opinion (together with any opinions of
local counsel relied on therein) of Thomas Slaughter, General Counsel of the
Borrower, dated as of the Closing Date, substantially in the form of Exhibit D
hereto and covering such additional matters relating to the transactions
contemplated hereby as the Agent or any Bank may reasonably request;
(d) receipt by the Agent of an opinion of Womble, Carlyle, Sandridge &
Rice, PLLC, special counsel for the Agent, dated as of the Closing Date,
substantially in the form of Exhibit E hereto and covering such additional
matters relating to the transactions contemplated hereby as the Agent may
reasonably request;
(e) receipt by the Agent of a certificate (the "Closing Certificate"),
dated the Closing Date, substantially in the form of Exhibit H hereto, signed
by a principal financial officer of the Borrower, to the effect that (i) no
Default has occurred and is continuing on the Closing Date; and (ii) the
representations and warranties of the Borrower contained in Article IV are true
on and as of the Closing Date;
(f) receipt by the Agent of all documents which the Agent or any Bank may
reasonably request relating to the existence of the Borrower, the corporate
authority for and the validity of this Agreement, the Notes, and any other
matters relevant hereto, all in form and substance satisfactory to the Agent,
including without limitation a certificate of incumbency of the Borrower (the
"Borrower Officer's Certificate"), signed by the Secretary or an Assistant
Secretary of the Borrower, substantially in the form of Exhibit I hereto,
certifying as to the names, true signatures and incumbency of the officer or
officers of the Borrower authorized to execute and deliver the Loan Documents
to which it is a party, and certified copies of the following items: (i) the
Borrower's Certificate of Incorporation, (ii) the Borrower's Bylaws, (iii) a
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certificate of the Secretary of State of the State of incorporation of the
Borrower as to the existence of the Borrower as a corporation organized under
the laws of such state, and (iv) the action taken by the Board of Directors of
the Borrower authorizing the Borrower's execution, delivery and performance of
this Agreement, the Notes and the other Loan Documents to which it is a party;
(g) on or before the Closing Date, the Borrower shall have acquired the
First Media Television Stations from First Media Television, L.P. upon terms
and conditions substantially similar to the terms and conditions as previously
disclosed by the Borrower to the Agent and the Banks; and
(h) receipt by the Agent of such other documents, certificates and other
information, as the Agent or any Bank may reasonably request.
SECTION 3.02. Conditions to All Borrowings. The obligation of each Bank
to make a Revolving Credit Loan or Term Loan on the occasion of each Revolving
Credit Borrowing or Term Loan Borrowing, as the case may be, is subject to the
satisfaction of the following conditions:
(a) except as provided in Section 2.02(f), either (i) receipt by the
Agent of a Notice of Borrowing as required by Section 2.02 (if such borrowing
is a Term Loan Borrowing or a Syndicated Revolving Credit Borrowing), or (ii)
compliance with the provisions of Section 2.03 (if such borrowing is a Money
Market Borrowing);
(b) the fact that, immediately before and after such Revolving Credit
Borrowing or Term Loan Borrowing, as the case may be, no Default shall have
occurred and be continuing;
(c) the fact that the representations and warranties of the Borrower
contained in Article IV of this Agreement shall be true on and as of the date
of such Revolving Credit Borrowing or Term Loan Borrowing, as the case may be;
and
(d) the fact that, immediately after such Revolving Credit Borrowing or
Term Loan Borrowing, as the case may be, (i) the aggregate outstanding
principal amount of the Syndicated Revolving Credit Loans of each Bank will not
exceed the amount of its Revolving Credit Commitment and (ii) the aggregate
outstanding principal amount of the Term Loans will not exceed the aggregate
amount of the Term Loan Commitments of all of the Banks as of such date; and
(iii) the aggregate outstanding principal amount of the Revolving Credit Loans
will not exceed the aggregate amount of the Revolving Credit Commitments of all
of the Banks as of such date.
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Each Revolving Credit Borrowing and Term Loan Borrowing hereunder shall be
deemed to be a representation and warranty by the Borrower on the date of such
Revolving Credit Borrowing or Term Loan Borrowing, as the case may be, as to
the truth and accuracy of the facts specified in clauses (b), (c) and (d) of
this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The Borrower is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, is duly qualified to transact
business in every jurisdiction where, by the nature of its business, such
qualification is necessary, and has all corporate powers and all governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
SECTION 4.02. Corporate and Governmental Authorization; No Contravention.
The execution, delivery and performance by the Borrower of this Agreement, the
Notes and the other Loan Documents (i) are within the Borrower's corporate
powers, (ii) have been duly authorized by all necessary corporate action, (iii)
require no action by or in respect of, or filing with, any governmental body,
agency or official, (iv) do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the certificate of
incorporation or by-laws of the Borrower or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Borrower or any
of its Subsidiaries, and (v) do not result in the creation or imposition of any
Lien on any asset of the Borrower or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Borrower enforceable in accordance with its terms, and
the Notes and the other Loan Documents, when executed and delivered in
accordance with this Agreement, will constitute valid and binding obligations
of the Borrower enforceable in accordance with their respective terms, provided
that the enforceability hereof and thereof is subject in each case to general
principles of equity and to bankruptcy, insolvency and similar laws affecting
the enforcement of creditors' rights generally.
SECTION 4.04. Financial Information. (a) The consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries as of June 30, 1996 and the
related consolidated statements of income, shareholders' equity and cash flows
for the Fiscal Year then ended, reported on by KPMG Peat Marwick, copies of
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which have been delivered to each of the Banks, and the unaudited consolidated
financial statements of the Borrower for the interim period ended March 31,
1997, copies of which have been delivered to each of the Banks, fairly present,
in conformity with GAAP, the consolidated financial position of the Borrower
and its Consolidated Subsidiaries as of such dates and their consolidated
results of operations and cash flows for such periods stated.
(b) Since June 30, 1996 there has been no event, act, condition or
occurrence having a Material Adverse Effect.
SECTION 4.05. Litigation. There is no action, suit or proceeding
pending, or to the knowledge of the Borrower threatened, against or affecting
the Borrower or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official which could have a Material Adverse
Effect or which in any manner draws into question the validity or
enforceability of, or could impair the ability of the Borrower to perform its
obligations under, this Agreement, the Notes or any of the other Loan
Documents.
SECTION 4.06. Compliance with ERISA. (a) The Borrower and each member of
the Controlled Group have fulfilled their obligations under the minimum funding
standards of ERISA and the Code with respect to each Plan and are in compliance
in all material respects with the presently applicable provisions of ERISA and
the Code, and have not incurred any liability to the PBGC or a Plan under Title
IV of ERISA.
(b) Neither the Borrower nor any member of the Controlled Group has
incurred any withdrawal liability with respect to any Multiemployer Plan under
Title IV of ERISA, and no such liability is expected to be incurred.
SECTION 4.07. Taxes. There have been filed on behalf of the Borrower and
its Subsidiaries all Federal, state and local income, excise, property and
other tax returns which are required to be filed by them and all taxes due
pursuant to such returns or pursuant to any assessment received by or on behalf
of the Borrower or any Subsidiary have been paid. The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries in respect of taxes
or other governmental charges are, in the opinion of the Borrower, adequate.
United States income tax returns of the Borrower and its Subsidiaries have been
examined and closed through the Fiscal Year ended June 30, 1993.
SECTION 4.08. Subsidiaries. Each of the Borrower's Subsidiaries is a
corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation, is duly qualified to transact
business in every jurisdiction where, by the nature of its business, such
qualification is necessary (except where the failure to be qualified shall not
cause or be reasonably expected to cause a material adverse effect upon such
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Subsidiary's condition (financial, business or other)), and has all corporate
powers and all governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted. The Borrower has no
Subsidiaries except those Subsidiaries listed on Schedule 4.08, which
accurately sets forth each such Subsidiary's complete name and jurisdiction of
incorporation.
SECTION 4.09. Not an Investment Company. Neither the Borrower nor any of
its Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
SECTION 4.10 Public Utility Holding Company Act. Neither the Borrower
nor any of its Subsidiaries 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.
SECTION 4.11. Ownership of Property; Liens. Each of the Borrower and its
Consolidated Subsidiaries has title to its properties sufficient for the
conduct of its business, and none of such property is subject to any Lien
except as permitted in Section 5.07.
SECTION 4.12. No Default. Neither the Borrower nor any of its
Consolidated Subsidiaries is in default under or with respect to any agreement,
instrument or undertaking to which it is a party or by which it or any of its
property is bound which could have or cause a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
SECTION 4.13. Full Disclosure. All information heretofore furnished by
the Borrower to the Agent or any Bank for purposes of or in connection with
this Agreement or any transaction contemplated hereby is, and all such
information hereafter furnished by the Borrower to the Agent or any Bank will
be, true, accurate and complete in every material respect or based on
reasonable estimates on the date as of which such information is stated or
certified. The Borrower has disclosed to the Banks in writing any and all
facts which could have or cause a Material Adverse Effect.
SECTION 4.14. Environmental Matters. (a) Neither the Borrower nor any
Subsidiary is subject to any Environmental Liability which could have or cause
a Material Adverse Effect and neither the Borrower nor any Subsidiary has been
designated as a potentially responsible party under CERCLA or under any state
statute similar to CERCLA. None of the Properties has been identified on any
current or proposed (i) National Priorities List under 40 C.F.R. Section 300,
(ii) CERCLIS list or (iii) any list arising from a state statute similar to
CERCLA.
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(b) No Hazardous Materials have been or are being used, produced,
manufactured, processed, treated, recycled, generated, stored, disposed of,
managed or otherwise handled at, or shipped or transported to or from the
Properties or are otherwise present at, on, in or under the Properties, or, to
the best of the knowledge of the Borrower, at or from any adjacent site or
facility, except for Hazardous Materials, such as cleaning solvents, pesticides
and other materials used, produced, manufactured, processed, treated, recycled,
generated, stored, disposed of, and managed or otherwise handled in minimal
amounts in the ordinary course of business in compliance with all applicable
Environmental Requirements.
(c) The Borrower, and each of its Subsidiaries and Affiliates, has
procured all Environmental Authorizations necessary for the conduct of its
business, and is in compliance with all Environmental Requirements in
connection with the operation of the Properties and the Borrower's, and each of
its Subsidiary's and Affiliate's, respective businesses.
SECTION 4.15. Compliance with Laws. The Borrower and each Subsidiary is
in compliance with all applicable laws, including, without limitation, all
Environmental Laws, except where any failure to comply with any such laws would
not, alone or in the aggregate, have a Material Adverse Effect.
SECTION 4.16. Capital Stock. All Capital Stock, debentures, bonds, notes
and all other securities of the Borrower and its Subsidiaries presently issued
and outstanding are validly and properly issued in accordance with all
applicable laws, including, but not limited to, the "Blue Sky" laws of all
applicable states and the federal securities laws. The issued shares of
Capital Stock of the Borrower's Wholly Owned Subsidiaries are owned by the
Borrower free and clear of any Lien or adverse claim. At least a majority of
the issued shares of capital stock of each of the Borrower's other Subsidiaries
(other than Wholly Owned Subsidiaries) is owned by the Borrower free and clear
of any Lien or adverse claim.
SECTION 4.17. Margin Stock. No part of the proceeds of any Term Loan or
Revolving Credit Loan will be used for any purpose which violates, or which is
inconsistent with, the provisions of Regulations G, T, U or X.
SECTION 4.18. Insolvency. After giving effect to the execution and
delivery of the Loan Documents and the making of the Loans under this
Agreement, the Borrower will not be "insolvent," within the meaning of such
term as used in O.C.G.A. Section 18-2-22 or as defined in Section 101 of Title
11 of the United States Code or Section 2 of the Uniform Fraudulent Transfer
Act, or any other applicable state law pertaining to fraudulent transfers, as
each may be amended from time to time, or be unable to pay its debts generally
as such debts become due, or have an unreasonably small capital to engage in
any business or transaction, whether current or contemplated.
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SECTION 4.19. Broadcast Licenses. (a) Each of the Borrower and its
Subsidiaries owns, possesses or has the right to use all of the patents,
trademarks, service marks, trade names, copyrights, licenses (including,
without limitation, Broadcast Licenses) and rights with respect thereto,
necessary for the present and currently planned future conduct of its business,
without any known conflict with the rights of others.
(b) (i) Schedule 4.19 to this Agreement accurately lists and describes
each Broadcast License of the Borrower and its Subsidiaries which is in
existence on the date hereof or which will be in existence on the Closing Date
and the expiration date, if any, of each such Broadcast License;
(ii) each such Broadcast License is, or on the Closing Date will be,
in full force and effect;
(iii) the Borrower and each Subsidiary has fulfilled and performed
all of its obligations, if any, with respect to such Broadcast Licenses;
and
(iv) no event has occurred which (A) permits, or after notice or
lapse of time or both would permit, revocation or termination of any such
Broadcast License or (B) causes a Material Adverse Effect or in the future
may (so far as the Borrower can now reasonably foresee) cause a Material
Adverse Effect in any of the rights of the Borrower or any Subsidiary
thereunder. Except to the extent required by the Communications Act of
1934, as amended, and the rules and regulations of the FCC, no Broadcast
License or other franchise or license held by the Borrower or any
Subsidiary requires that any present stockholder, director, officer or
employee of the Borrower remain as such or that any transfer of control of
the Borrower or any Subsidiary must be approved by any public or
governmental body.
(c) The Broadcast Licenses described on Schedule 4.19 to this Agreement
constitute all of the main station licenses and low power television licenses
issued by the FCC or any Governmental Authority, necessary for the operation of
the business of the Borrower and each Subsidiary in the same manner as it is
currently conducted and as proposed to be conducted. The Broadcast Licenses
described on Schedule 4.19 to this Agreement are, or on the Closing Date will
be, validly issued and in full force and effect, unimpaired by any act or
omission by the Borrower or any Subsidiary. Except for rulemakings or similar
proceedings of general applicability to entities such as the Borrower and its
Subsidiaries, no Borrower or Subsidiary is a party to any investigation (to the
best of its knowledge), notice of violation, order, or complaint issued by or
before the FCC or any other Governmental Authority, nor are there any other
proceedings involving the Borrower or any one or more of the Subsidiaries by or
before the FCC or any other Governmental Authority, which investigation,
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notice, order, complaint or proceeding could in any manner materially threaten
or adversely affect such Broadcast Licenses. Neither the Borrower nor any
Subsidiary has any knowledge of a threat of any such investigation, notice of
violation, order, complaint or proceeding with respect thereto. Neither the
Borrower nor any Subsidiary has any reason to believe that the Broadcast
Licenses listed and described on Schedule 4.19 to this Agreement will not be
renewed in the ordinary course. The Borrower and each Subsidiary has filed
with the FCC and all other applicable Governmental Authorities all material
reports, applications, documents, instruments and information required to be
filed by it pursuant to applicable rules and regulations or requests of the FCC
or such applicable Governmental Authorities.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any Revolving Credit
Commitment or Term Loan Commitment hereunder or any amount payable under any
Note remains unpaid:
SECTION 5.01. Information. The Borrower will deliver to each of the
Banks:
(a) as soon as available and in any event within 90 days after the end of
each Fiscal Year, a consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such Fiscal Year and the related
consolidated statements of income, shareholders' equity and cash flows for such
Fiscal Year, setting forth in each case in comparative form the figures for the
previous fiscal year, all certified by KPMG Peat Marwick or other independent
public accountants of nationally recognized standing, with such certification
to be free of exceptions and qualifications not acceptable to the Required
Banks;
(b) as soon as available and in any event within 45 days after the end of
each of the first 3 Fiscal Quarters of each Fiscal Year, a consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as of the end of such
Fiscal Quarter and the related statement of income and statement of cash flows
for such Fiscal Quarter and for the portion of the Fiscal Year ended at the end
of such Fiscal Quarter, setting forth in each case in comparative form the
figures for the corresponding Fiscal Quarter and the corresponding portion of
the previous Fiscal Year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, GAAP and consistency by the chief
financial officer or the controller of the Borrower;
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(c) simultaneously with the delivery of each set of financial statements
referred to in clauses (a) and (b) above, a certificate, substantially in the
form of Exhibit J (a "Compliance Certificate"), of the chief financial officer
or the treasurer of the Borrower (i) setting forth in reasonable detail the
calculations required to establish whether the Borrower was in compliance with
the requirements of Sections 5.03 through 5.07, inclusive, and 5.10 and 5.21 on
the date of such financial statements and (ii) stating whether any Default
exists on the date of such certificate and, if any Default then exists, setting
forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of annual financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements to the effect
that nothing has come to their attention to cause them to believe that any
Default existed on the date of such financial statements;
(e) within 5 Domestic Business Days after the Borrower becomes aware of
the occurrence of any Default, a certificate of the chief financial officer or
the treasurer of the Borrower setting forth the details thereof and the action
which the Borrower is taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the Borrower
generally, copies of all financial statements, reports and proxy statements so
mailed;
(g) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and annual, quarterly or monthly reports which the
Borrower shall have filed with the Securities and Exchange Commission;
(h) if and when the Borrower or any member of the Controlled Group (i)
gives or is required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of ERISA, or
knows that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such reportable
event given or required to be given to the PBGC; (ii) receives notice of
complete or partial withdrawal liability under Title IV of ERISA, a copy of
such notice; or (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate or appoint a trustee to administer any Plan, a copy of
such notice;
(i) promptly after the Borrower knows of the commencement thereof, notice
of any litigation, dispute or proceeding involving a claim against the Borrower
and/or any Subsidiary for $5,000,000 or more in excess of amounts covered in
full by applicable insurance; and
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(j) promptly after the commencement thereof or promptly after the
Borrower knows of the commencement or threat thereof, notice of any Forfeiture
Proceeding; and
(k) as soon as practicable after the receipt thereof, and in any event
within ten (10) Domestic Business Days after the issuance thereof:
(i) copies of any order or notice of the FCC, a court of competent
jurisdiction or any other Governmental Authority which designated any
Broadcast License of the Borrower or any Subsidiary or application
therefor for a hearing, or which refuses renewal or extension of any such
Broadcast License, or revokes or suspends the authority of the Borrower or
any Subsidiary to operate a broadcast station;
(ii) a copy of any competing application filed against any Broadcast
License of the Borrower or any Subsidiary or application therefor;
(iii) copies of any citation, notice of violation or order to show
cause from the FCC, or any material complaint filed by or with the FCC, in
each case, in connection with the Borrower or any Subsidiary; and
(iv) a copy of any notice or application by the Borrower or any
Subsidiary requesting authority to cease broadcasting on any broadcast
station for any period in excess of forty-eight (48) hours; and
(l) from time to time such additional information regarding the financial
position or business of the Borrower or any Subsidiary as the Agent at the
request of any Bank may reasonably request.
SECTION 5.02. Inspection of Property, Books and Records. The Borrower
will (i) keep, and will cause each Subsidiary to keep, proper books of record
and account in which full, true and correct entries in conformity with GAAP
shall be made of all dealings and transactions in relation to its business and
activities; and (ii) permit, and will cause each Subsidiary to permit,
representatives of any Bank at such Bank's expense prior to the occurrence of
an Event of Default and at the Borrower's expense after the occurrence of an
Event of Default to visit and inspect any of their respective properties, to
examine and make abstracts from any of their respective books and records and
to discuss their respective affairs, finances and accounts with their
respective officers, employees and independent public accountants. The
Borrower agrees to cooperate and assist in such visits and inspections, in each
case at such reasonable times and as often as may reasonably be desired.
SECTION 5.03. Ratio of Consolidated Funded Debt to EBITDA. The ratio of
Consolidated Funded Debt to EBITDA shall at all times be less than 3.50 to
1.00.
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SECTION 5.04. Fixed Charges Coverage. At the end of each Fiscal Quarter
the Fixed Charge Coverage Ratio shall not be less than 2.00 to 1.00 for the
period commencing with the Fiscal Quarter ending June 30, 1997, and continuing
for each Fiscal Quarter thereafter.
SECTION 5.05. Loans or Advances. Neither the Borrower nor any of its
Subsidiaries shall make loans or advances to any Person except: (i) loans or
advances to employees not exceeding Five Million and No/100 Dollars
($5,000,000) in the aggregate outstanding made in the ordinary course of
business and consistently with practices existing on June 30, 1997; (ii)
deposits required by government agencies or public utilities; (iii) loans or
advances to Wholly Owned Subsidiaries; and (iv) loans or advances not otherwise
permitted by the foregoing clauses of this Section, provided that the aggregate
outstanding loans and advances made under this clause (iv) when aggregated with
the Investments made under Section 5.06(vi) shall not at any time exceed
$40,000,000; provided, further, that after giving effect to the making of any
loans, advances or deposits permitted by clause (i), (ii), (iii) or (iv) of
this Section, no Default shall have occurred and be continuing.
SECTION 5.06. Investments. Neither the Borrower nor any of its
Subsidiaries shall make Investments in any Person except as permitted by
Section 5.05 and except Investments in (i) direct obligations of the United
States Government maturing within one year, (ii) certificates of deposit issued
by or money market accounts maintained at a United States bank whose long-term
certificates of deposit are rated at least AA or the equivalent thereof by
Standard & Poor's Corporation and Aa or the equivalent thereof by Moody's
Investors Service, Inc., (iii) commercial paper rated A-1 or the equivalent
thereof by Standard & Poor's Corporation or P-1 or the equivalent thereof by
Moody's Investors Service, Inc. and in either case maturing within 9 months
after the date of acquisition, (iv) tender bonds the payment of the principal
of and interest on which is fully supported by a letter of credit issued by a
United States bank whose long-term certificates of deposit are rated at least
AA or the equivalent thereof by Standard & Poor's Corporation and Aa or the
equivalent thereof by Moody's Investors Service, Inc., (v) Permitted
Acquisitions; and/or (vi) debt and investment securities not otherwise
permitted by the foregoing clauses of this Section, provided that the aggregate
amount of Investments made under this clause (vi) when aggregated with the
loans and advances made under section 5.05(iv) shall not at any time exceed
$40,000,000.
SECTION 5.07. Negative Pledge. Neither the Borrower nor any Consolidated
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal amount not
exceeding $5,000,000;
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(b) any Lien existing on any asset of any corporation at the time such
corporation becomes a Consolidated Subsidiary and not created in contemplation
of such event;
(c) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring or constructing
such asset, provided that such Lien attaches to such asset concurrently with or
within 18 months after the acquisition or completion of construction thereof;
(d) any Lien on any asset of any corporation existing at the time such
corporation is merged or consolidated with or into the Borrower or a
Consolidated Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof by
the Borrower or a Consolidated Subsidiary and not created in contemplation of
such acquisition;
(f) Liens securing Debt owing by any Subsidiary to the Borrower;
(g) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section, provided that (i) such Debt is not secured by any
additional assets, and (ii) the amount of such Debt secured by any such Lien is
not increased;
(h) Liens incidental to the conduct of its business or the ownership of
its assets which (i) do not secure Debt and (ii) do not in the aggregate
materially detract from the value of its assets or materially impair the use
thereof in the operation of its business;
(i) any Lien on Margin Stock; and
(j) Liens not otherwise permitted by the foregoing clauses of this
Section securing Debt (other than indebtedness represented by the Notes) in an
aggregate principal amount at any time outstanding not to exceed 5% of
Consolidated Net Worth.
SECTION 5.08. Maintenance of Existence. The Borrower shall, and shall
cause each Subsidiary to, maintain its corporate existence and carry on its
business in substantially the same manner and in substantially the same fields
as such business is now carried on and maintained.
SECTION 5.09. Dissolution. Neither the Borrower nor any of its
Subsidiaries shall suffer or permit dissolution or liquidation either in whole
or in part or redeem or retire any shares of its own stock or that of any
Subsidiary, except through corporate reorganization to the extent permitted by
Section 5.10.
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SECTION 5.10. Consolidations, Mergers and Sales of Assets. The Borrower
will not, nor will it permit any Subsidiary to, consolidate or merge with or
into, or sell, lease or otherwise transfer all or any substantial part of its
assets to, any other Person, or discontinue or eliminate any business line or
segment, provided that (a) the Borrower may merge with another Person if (i)
such Person was organized under the laws of the United States of America or one
of its states, (ii) the Borrower is the corporation surviving such merger and
(iii) immediately after giving effect to such merger, no Default shall have
occurred and be continuing, (b) Subsidiaries of the Borrower may merge with one
another, and (c) the foregoing limitation on the sale, lease or other transfer
of assets and on the discontinuation or elimination of a business line or
segment shall not prohibit, during any Fiscal Quarter, a transfer of assets or
the discontinuance or elimination of a business line or segment (in a single
transaction or in a series of related transactions) unless the aggregate assets
to be so transferred or utilized in a business line or segment to be so
discontinued, when combined with all other assets transferred, and all other
assets utilized in all other business lines or segments discontinued, during
such Fiscal Quarter and the immediately preceding three Fiscal Quarters, either
(x) contributed more than 20% of Consolidated Gross Revenues during the 4
Fiscal Quarters immediately preceding such Fiscal Quarter, or (y) contributed
more than 20% of Consolidated Operating Profits during the 4 consecutive Fiscal
Quarters immediately preceding such Fiscal Quarter; provided, however, that the
assets transferred in connection with the Proposed Station Exchange shall be
excluded from any computation made pursuant to this Section 5.10(c).
SECTION 5.11. Use of Proceeds. No portion of the proceeds of the Loans
will be used by the Borrower or any Subsidiary (i) in connection with, either
directly or indirectly, any tender offer for, or other acquisition of, stock of
any corporation with a view towards obtaining control of such other
corporation, except a Permitted Acquisition or (ii)for any purpose in violation
of any applicable law or regulation.
SECTION 5.12. Compliance with Laws; Payment of Taxes. (a) The Borrower
will, and will cause each of its Subsidiaries and each member of the Controlled
Group to, comply with applicable laws (including but not limited to ERISA),
regulations and similar requirements of governmental authorities (including but
not limited to PBGC), except where the necessity of such compliance is being
contested in good faith through appropriate proceedings diligently pursued.
The Borrower will, and will cause each of its Subsidiaries to, pay promptly
when due all taxes, assessments, governmental charges, claims for labor,
supplies, rent and other obligations which: (A) if unpaid, might become a
lien against the property of the Borrower or any Subsidiary, except liabilities
being contested in good faith by appropriate proceedings diligently pursued and
against which, if requested by the Agent, the Borrower shall have set up
reserves in accordance with GAAP; or (B) when combined with all other taxes,
assessments, governmental charges, claims for labor, supplies, rent and other
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obligations not paid promptly when due during the current Fiscal Quarter and
the immediately preceding three Fiscal Quarters is greater than $500,000.
(b) The Borrower shall not permit the aggregate complete or partial
withdrawal liability under Title IV of ERISA with respect to Multiemployer
Plans incurred by the Borrower and members of the Controlled Group to exceed
$5,000,000 at any time. For purposes of this Section 5.12(b), the amount of
withdrawal liability of the Borrower and members of the Controlled Group at any
date shall be the aggregate present value of the amount claimed to have been
incurred less any portion thereof which: (1) the Borrower and members of the
Controlled Group have paid; or (2) as to which the Borrower reasonably
believes, after appropriate consideration of possible adjustments arising under
Sections 4219 and 4221 of ERISA, it and members of the Controlled Group will
have no liability, provided that the Borrower shall obtain prompt written
advice from independent actuarial consultants supporting any such adjustments
under Sections 4219 and 4221 of ERISA. The Borrower agrees, from time to time
but no more frequently than once each Fiscal Year, upon the request of the
Agent (i) to request and obtain a current statement of the withdrawal liability
of the Borrower and members of the Controlled Group from each Multiemployer
Plan, if any, and (ii) to transmit a copy of such statement to the Agent and
the Banks within fifteen (15) days after the Borrower receives the same.
(c) No portion of the proceeds of the Term Loans and Revolving Credit
Loans will be used by the Borrower or any Subsidiary in violation of (or in a
manner so as to cause the Agent or the Banks to be in violation of) any
applicable law or regulation, including without limitation Regulations G, T, U
and X. At no time will the value of Margin Stock purchased or held by the
Borrower (including, without limitation, shares of common stock of the Borrower
repurchased by and held by the Borrower but excluding shares of common stock of
the Borrower repurchased by and immediately retired by the Borrower) exceed 25%
of Unencumbered Total Assets of the Borrower.
SECTION 5.13. Insurance. The Borrower will maintain, and will cause each
of its Subsidiaries to maintain (either in the name of the Borrower or in such
Subsidiary's own name), with financially sound and reputable insurance
companies, insurance on all its Property in at least such amounts and against
at least such risks as are usually insured against in the same general area by
companies of established repute engaged in the same or similar business.
SECTION 5.14. Change in Fiscal Year. The Borrower will not change its
Fiscal Year without the consent of the Required Banks.
SECTION 5.15. Maintenance of Property. The Borrower shall, and shall
cause each Subsidiary to, maintain all of its properties and assets in good
condition, repair and working order, ordinary wear and tear excepted.
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SECTION 5.16. Environmental Notices. The Borrower shall furnish to the
Banks and the Agent prompt written notice of all Environmental Liabilities,
pending, threatened or anticipated Environmental Proceedings, Environmental
Notices, Environmental Judgments and Orders, and Environmental Releases at, on,
in, under or in any way affecting the Properties or any adjacent property, and
all facts, events, or conditions that could lead to any of the foregoing.
SECTION 5.17. Environmental Matters. The Borrower and its Subsidiaries
will not, and will not permit any Third Party to, use, produce, manufacture,
process, treat, recycle, generate, store, dispose of, manage at, or otherwise
handle or ship or transport to or from the Properties any Hazardous Materials
except for Hazardous Materials such as cleaning solvents, pesticides and other
similar materials used, produced, manufactured, processed, treated, recycled,
generated, stored, disposed, managed or otherwise handled in minimal amounts in
the ordinary course of business in compliance with all applicable Environmental
Requirements.
SECTION 5.18. Environmental Release. The Borrower agrees that upon the
occurrence of an Environmental Release at or on any of the Properties it will
act immediately to investigate the extent of, and to take appropriate remedial
action to eliminate, such Environmental Release, whether or not ordered or
otherwise directed to do so by any Environmental Authority.
SECTION 5.19. Transactions with Affiliates. Neither the Borrower nor any
of its Subsidiaries shall enter into, or be a party to, any Affiliate
Transaction, except: (1) as permitted by law; (2) in the ordinary course of
business; and (3) pursuant to reasonable terms which are no less favorable to
Borrower or such Subsidiary than would be obtained in a comparable arm's length
transaction with a Person which is not an Affiliate. As used herein,
"Affiliate Transaction" means a transaction between the Borrower or any of its
Subsidiaries with any Affiliate of the Borrower or any such Subsidiary (which
Affiliate is not the Borrower or a Subsidiary) which transaction when combined
with all other transactions between the Borrower or any of its Subsidiaries and
any Affiliate of the Borrower or a Subsidiary of the Borrower during the
current Fiscal Quarter and the immediately preceding three Fiscal Quarters is
greater than $1,000,000.
SECTION 5.20 Acquisitions. The Borrower will not, nor will it permit any
Subsidiary to purchase, lease or otherwise acquire (in a single transaction or
in a series of transactions), directly or indirectly: (i) all or any
substantial part of the assets or stock of any other Person; (ii) a business
line or segment of any other Person; or (iii) control of any other Person;
provided that the Borrower and it Subsidiaries may enter into a Permitted
Acquisition.
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SECTION 5.21. Debt. (a) The Borrower shall not at any time incur,
create, assume, or permit to exist any Debt except: (1) the Term Loans and
Revolving Credit Loans; (2) Debt owing to a Subsidiary of the Borrower; (3)
Debt outstanding on the date of this Agreement described on Schedule 5.21; and
(4) Debt, in addition to Debt permitted under clauses (1), (2) and (3) of this
Section 5.21(a), provided that the Borrower shall not incur, create, assume or
permit to exist any Debt under this Section 5.21(a) if the incurrence,
creation, assumption or existence of any such Debt shall result in a Default or
Event of Default.
(b) No Subsidiary of the Borrower shall at any time incur, create, assume,
or permit to exist any Debt except: (1) Debt owing to the Borrower or another
Subsidiary of the Borrower; and (2) Debt, in addition to Debt permitted under
clause (1) of this Section 5.21(b), provided that the aggregate outstanding
principal amount of Debt of all of the Subsidiaries of the Borrower incurred
under this clause (2) of Section 5.21(b) shall not at any time exceed
$1,000,000; provided further that no Subsidiary of the Borrower shall incur,
create, assume, or permit to exist any Debt under this Section 5.21(b) if the
incurrence, creation, assumption or existence of any such Debt shall result in
a Default or Event of Default.
SECTION 5.22. Termination or Loss of Licenses. The Borrower will not,
nor will it permit any Subsidiary to, take or fail to take any action which
permits, or after notice or lapse of time or both would permit, revocation or
termination of any Broadcast License; except revocation or termination of a
Broadcast License required in connection with the Proposed Station Exchange and
other transfers of assets of the Borrower, to the extent permitted under this
Agreement.
SECTION 5.23. No Activities Leading to Forfeiture. The Borrower will
not, nor will it permit any Subsidiary to, engage in the conduct of any
business or activity which could result in a Forfeiture Proceeding.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any
Revolving Credit Loan or any Term Loan or shall fail to pay any interest on any
Revolving Credit Loan or any Term Loan within five Domestic Business Days after
such interest shall become due, or shall fail to pay any fee or other amount
payable hereunder within five Domestic Business Days after such fee or other
amount becomes due; or
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(b) the Borrower shall fail to observe or perform any covenant contained
in Sections 5.02(ii), or 5.03 to 5.11, inclusive, or Section 5.13, or Sections
5.20 to 5.23 inclusive; or
(c) the Borrower shall fail to observe or perform any covenant or
agreement contained or incorporated by reference in this Agreement (other than
those covered by clause (a) or (b) above) for thirty days after the earlier of
(i) the first day on which the Borrower has knowledge of such failure or (ii)
written notice thereof has been given to the Borrower by the Agent at the
request of any Bank; or
(d) any representation, warranty, certification or statement made or
deemed made by the Borrower in Article IV of this Agreement or in any
certificate, financial statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect or misleading in any material
respect when made (or deemed made); or
(e) the Borrower or any Subsidiary shall fail to make any payment in
respect of Debt outstanding (other than the Notes) in an aggregate principal
amount in excess of $10,000,000 when due or within any applicable grace period;
or
(f) any event or condition shall occur which results in the acceleration
of the maturity of Debt outstanding of the Borrower or any Subsidiary in an
aggregate principal amount in excess of $10,000,000 or the mandatory prepayment
or purchase of such Debt by the Borrower (or its designee) or such Subsidiary
(or its designee) prior to the scheduled maturity thereof, or enables (or, with
the giving of notice or lapse of time or both, would enable) the holders of
such Debt or any Person acting on such holders' behalf to accelerate the
maturity thereof or require the mandatory prepayment or purchase thereof prior
to the scheduled maturity thereof, without regard to whether such holders or
other Person shall have exercised or waived their right to do so; or
(g) the Borrower or any Subsidiary shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment
for the benefit of creditors, or shall fail generally, or shall admit in
writing its inability, to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing; or
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(h) an involuntary case or other proceeding shall be commenced against
the Borrower or any Subsidiary seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Borrower or any Subsidiary under the
federal bankruptcy laws as now or hereafter in effect; or
(i) the Borrower or any member of the Controlled Group shall fail to pay
when due any material amount which it shall have become liable to pay to the
PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a
Plan or Plans shall be filed under Title IV of ERISA by the Borrower, any
member of the Controlled Group, any plan administrator or any combination of
the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA
to terminate or to cause a trustee to be appointed to administer any such Plan
or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or
Plans to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall
not have been dismissed within 30 days thereafter; or a condition shall exist
by reason of which the PBGC would be entitled to obtain a decree adjudicating
that any such Plan or Plans must be terminated; or
(j) one or more judgments or orders for the payment of money in an
aggregate amount in excess of $1,000,000 shall be rendered against the Borrower
or any Subsidiary and such judgment or order shall continue unsatisfied and
unstayed for a period of 30 days; or
(k) a federal tax lien shall be filed against the Borrower or any
Subsidiary under Section 6323 of the Code or a lien of the PBGC shall be filed
against the Borrower or any Subsidiary under Section 4068 of ERISA and in
either case such lien shall remain undischarged for a period of 25 days after
the date of filing; or
(l) (i) any Person or two or more Persons (other than the E. T. Meredith
Family Stockholders) acting in concert shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934) of 20% or more of the outstanding
shares of the voting stock of the Borrower; or (ii) as of any date a majority
of the Board of Directors of the Borrower consists of individuals who were not
either (A) directors of the Borrower as of the corresponding date of the
previous year, (B) selected or nominated to become directors by the Board of
Directors of the Borrower of which a majority consisted of individuals
described in clause (A), or (C) selected or nominated to become directors by
the Board of Directors of the Borrower of which a majority consisted of
individuals described in clause (A) and individuals described in clause (B); or
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(m) if any of the Broadcast Licenses necessary for the operation of the
Stations shall be terminated, forfeited or revoked or shall fail to be renewed
for any reason whatsoever, or, for any other reason, the Borrower or any
Subsidiary of the Borrower shall at any time fail to be a licensee under any of
the Broadcast Licenses or shall otherwise fail to have all required
authorizations, licenses and permits to construct, own, operate or promote the
Stations pursuant to the Broadcast Licenses; or
(n) if (x) any Forfeiture Proceeding shall have been commenced or the
Borrower shall have given the Bank written notice of the commencement of any
Forfeiture Proceeding as provided in Section 5.01(j) hereof; or (y) the Bank
has a good faith basis to believe that a Forfeiture Proceeding has been
threatened or commenced; or
(o) if, at any time, the FCC or any court of competent jurisdiction shall
have entered any final order or judgment (which, in either case, shall have
been outstanding for any period of more than thirty (30) days during which
enforcement of such order or judgment has not been stayed, by reason of a
pending appeal or otherwise) requiring the Borrower or any Subsidiary of the
Borrower to sell, transfer or divest itself of any Station, or the assets which
comprise any Station, by virtue of any failure on the part of the Borrower or
any Subsidiary of the Borrower to comply with the Federal Communications Act of
1934, as amended, the rules and regulations of the FCC promulgated thereunder
or any FCC order or any judgment, and the Borrower or any Subsidiary of the
Borrower shall fail to consummate such sale, transfer or divestiture within the
time allotted therefor;
then, and in every such event, the Agent shall (i) if requested by the Required
Banks, by notice to the Borrower terminate the Revolving Credit Commitments and
Term Loan Commitments and they shall thereupon terminate, and (ii) if requested
by the Required Banks, by notice to the Borrower declare the Notes (together
with accrued interest thereon) and all other amounts payable hereunder and
under the other Loan Documents to be, and the Notes (together with all accrued
interest thereon) and all other amounts payable hereunder and under the other
Loan Documents shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; provided that if any Event of Default specified
in clause (g) or (h) above occurs with respect to the Borrower, without any
notice to the Borrower, or any other act by the Agent or the Banks, the
Revolving Credit Commitments and the Term Loan Commitments shall thereupon
automatically terminate and the Notes (together with accrued interest thereon)
and all other amounts payable hereunder and under the other Loan Documents
shall automatically become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower. Notwithstanding the foregoing, the Agent shall have available to
it all other remedies at law or equity, and shall exercise any one or all of
them at the request of the Required Banks.
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SECTION 6.02. Notice of Default. The Agent shall give notice to the
Borrower of any Default under Section 6.01(c) promptly upon being requested to
do so by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment, Powers and Immunities. Each Bank hereby
irrevocably appoints and authorizes the Agent to act as its agent hereunder and
under the other Loan Documents with such powers as are specifically delegated
to the Agent by the terms hereof and thereof, together with such other powers
as are reasonably incidental thereto. The Agent: (a) shall have no duties or
responsibilities except as expressly set forth in this Agreement and the other
Loan Documents, and shall not by reason of this Agreement or any other Loan
Document be a trustee for any Bank; (b) shall not be responsible to the Banks
for any recitals, statements, representations or warranties contained in this
Agreement or any other Loan Document, or in any certificate or other document
referred to or provided for in, or received by any Bank under, this Agreement
or any other Loan Document, or for the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
any other document referred to or provided for herein or therein or for any
failure by the Borrower to perform any of its obligations hereunder or
thereunder; (c) shall not be required to initiate or conduct any litigation or
collection proceedings hereunder or under any other Loan Document except to the
extent requested by the Required Banks, and then only on terms and conditions
satisfactory to the Agent, and (d) shall not be responsible for any action
taken or omitted to be taken by it hereunder or under any other Loan Document
or any other document or instrument referred to or provided for herein or
therein or in connection herewith or therewith, except for its own gross
negligence or willful misconduct. The Agent may employ agents and attorneys-
in-fact and shall not be responsible for the negligence or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. The
provisions of this Article VII are solely for the benefit of the Agent and the
Banks, and the Borrower shall not have any rights as a third party beneficiary
of any of the provisions hereof. In performing its functions and duties under
this Agreement and under the other Loan Documents, the Agent shall act solely
as agent of the Banks and does not assume and shall not be deemed to have
assumed any obligation towards or relationship of agency or trust with or for
the Borrower. The duties of the Agent shall be ministerial and administrative
in nature, and the Agent shall not have by reason of this Agreement or any
other Loan Document a fiduciary relationship in respect of any Bank.
SECTION 7.02. Reliance by Agent. The Agent shall be entitled to rely
upon any certification, notice or other communication (including any thereof by
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telephone, telefax, 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 or other experts selected by the Agent. As to any matters not
expressly provided for by this Agreement or any other Loan Document, the Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder and thereunder in accordance with instructions signed by the Required
Banks, and such instructions of the Required Banks in any action taken or
failure to act pursuant thereto shall be binding on all of the Banks.
SECTION 7.03. Defaults. The Agent shall not be deemed to have knowledge
of the occurrence of a Default or an Event of Default (other than the non-
payment of principal of or interest on the Term Loans or the Revolving Credit
Loans) unless the Agent has received notice from a Bank or the Borrower
specifying such Default or Event of 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 or an Event of Default, the Agent shall give prompt
notice thereof to the Banks. The Agent shall give each Bank prompt notice of
each non-payment of principal of or interest on the Term Loans and the
Revolving Credit Loans, whether or not it has received any notice of the
occurrence of such non-payment. The Agent shall (subject to Section 9.05) take
such action with respect to such Default or Event of Default as shall be
directed by the Required Banks; provided that, unless and until the Agent shall
have received such directions, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of
the Banks.
SECTION 7.04. Rights of Agent and its Affiliates as a Bank. With respect
to any Term Loan or Revolving Credit Loan made by Wachovia or an Affiliate of
Wachovia, such Affiliate and Wachovia in their capacity as a Bank hereunder
shall have the same rights and powers hereunder as any other Bank and may
exercise the same as though it were not an Affiliate of Wachovia (or in
Wachovia's case, acting as the Agent), and the term "Bank" or "Banks" shall,
unless the context otherwise indicates, include such Affiliate of Wachovia or
Wachovia in its individual capacity. Such Affiliate and Wachovia may (without
having to account therefor to any Bank) accept deposits from, lend money to and
generally engage in any kind of banking, trust or other business with the
Borrower (and any of its Affiliates) as if they were not an Affiliate of the
Agent or the Agent, respectively; and such Affiliate and Wachovia may accept
fees and other consideration from the Borrower (in addition to any agency fees
and arrangement fees heretofore agreed to between the Borrower and Wachovia)
for services in connection with this Agreement or any other Loan Document or
otherwise without having to account for the same to the Banks.
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SECTION 7.05. Indemnification. Each Bank severally agrees to indemnify
the Agent, to the extent the Agent shall not have been reimbursed by the
Borrower, ratably in accordance with the aggregate amount of its Revolving
Credit Commitment and Term Loan Commitment, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including, without limitation, counsel fees and disbursements) or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of this Agreement or any other Loan Document or any other documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby (excluding, unless an Event of Default has
occurred and is continuing, the normal administrative costs and expenses
incident to the performance of its agency duties hereunder) or the enforcement
of any of the terms hereof or thereof or any such other documents; provided,
however, that no Bank shall be liable for any of the foregoing to the extent
they arise from the gross negligence or willful misconduct of the Agent. If
any indemnity furnished to the Agent for any purpose shall, in the opinion of
the Agent, be insufficient or become impaired, the Agent may call for
additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished.
SECTION 7.06. CONSEQUENTIAL DAMAGES. THE AGENT SHALL NOT BE RESPONSIBLE
OR LIABLE TO ANY BANK, THE BORROWER OR ANY OTHER PERSON OR ENTITY FOR ANY
PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT
OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
SECTION 7.07. Payee of Note Treated as Owner. The Agent may deem and
treat the payee of any Note as the owner thereof for all purposes hereof unless
and until a written notice of the assignment or transfer thereof shall have
been filed with the Agent and the provisions of Section 9.07(c) have been
satisfied. Any requests, authority or consent of any Person who at the time of
making such request or giving such authority or consent is the holder of any
Note shall be conclusive and binding on any subsequent holder, transferee or
assignee of that Note or of any Note or Notes issued in exchange therefor or
replacement thereof.
SECTION 7.08. Non-Reliance on Agent and Other Banks. Each Bank agrees
that it has, independently and without reliance on the Agent or any other Bank,
and based on such documents and information as it has deemed appropriate, made
its own credit analysis of the Borrower and decision to enter into this
Agreement and that it will, independently and without reliance upon the Agent
or any other Bank, 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 any of the other Loan
Documents. The Agent shall not be required to keep itself (or any Bank)
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informed as to the performance or observance by the Borrower of this Agreement
or any of 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
Borrower or any other Person. Except for notices, reports and other documents
and information expressly required to be furnished to the Banks by the Agent
hereunder or under the other Loan Documents, the Agent shall not have any duty
or responsibility to provide any Bank with any credit or other information
concerning the affairs, financial condition or business of the Borrower or any
other Person (or any of their Affiliates) which may come into the possession of
the Agent. Each Bank acknowledges that each Bank designated as a "Co-Agent",
"Documentation Agent", or "Syndication Agent" on the signature pages of this
Agreement shall have no right, duty or responsibility, and shall incur no
liability, under this Agreement in its capacity as a Co-Agent, Documentation
Agent or Syndication Agent, as the case may be.
SECTION 7.09. Failure to Act. Except for action expressly required of
the Agent hereunder or under the other Loan Documents, the Agent shall in all
cases be fully justified in failing or refusing to act hereunder and thereunder
unless it shall receive further assurances to its satisfaction by the Banks of
their indemnification obligations under Section 7.05 against any and all
liability and expense which may be incurred by the Agent by reason of taking,
continuing to take, or failing to take any such action.
SECTION 7.10. 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 notice thereof to the Banks and the Borrower
and the Agent may be removed at any time with or without cause by the Required
Banks. Upon any such resignation or removal, the Required Banks shall have the
right to appoint a successor Agent. If no successor Agent that has been duly
appointed by the Required Banks shall have accepted such appointment within 30
days after the retiring Agent's notice of resignation or the Required Banks'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent. Any successor Agent shall be a bank which
has a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article VII shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent
hereunder.
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ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair.
If on or prior to the first day of any Interest Period:
(a) the Agent determines that deposits in Dollars (in the applicable
amounts) are not being offered in the relevant market for such Interest Period,
or
(b) the Required Banks advise the Agent that the London Interbank Offered
Rate, as determined by the Agent will not adequately and fairly reflect the
cost to such Banks of funding the relevant type of Euro-Dollar Loans for such
Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon: (i) the obligations of the Banks to make the Euro-Dollar Loans
specified in such notice shall be suspended; and (ii) the obligations of the
Banks to make the Euro-Dollar Loans specified in such notice shall continue to
be suspended until the Agent notifies the Borrower that the circumstances
giving rise to such suspension no longer exist. Unless the Borrower notifies
the Agent at least 2 Domestic Business Days before the date of any Euro-dollar
Borrowing for which a Notice of Borrowing has previously been given that it
elects not to borrow on such date, such borrowing shall instead be made as a
Base Rate Borrowing.
SECTION 8.02. Illegality. If, after the date hereof, the adoption of any
applicable law, rule or regulation, or any change in any existing or future
law, rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof (any such authority,
bank or agency being referred to as an "Authority" and any such event being
referred to as a "Change of Law"), or compliance by any Bank (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any Authority shall make it unlawful or impossible for any Bank (or its
Lending Office) to make, maintain or fund its Euro-Dollar Loans and such Bank
shall so notify the Agent, the Agent shall forthwith give notice thereof to the
other Banks and the Borrower, whereupon until such Bank notifies the Borrower
and the Agent that the circumstances giving rise to such suspension no longer
exist, the obligation of such Bank to make Euro-Dollar Loans shall be
suspended. Before giving any notice to the Agent pursuant to this Section,
such Bank shall designate a different Lending Office if such designation will
avoid the need for giving such notice and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. If such Bank shall determine
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that it may not lawfully continue to maintain and fund any of its outstanding
Euro-Dollar Loans to maturity and shall so specify in such notice, the Borrower
shall immediately prepay in full the then outstanding principal amount of each
Euro-Dollar Loan of such Bank, together with accrued interest thereon and any
amount due such Bank pursuant to Section 8.05(a). Concurrently with prepaying
each such Euro-Dollar Loan, the Borrower shall borrow a Base Rate Loan in an
equal principal amount from such Bank (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans of the other
Banks), and such Bank shall make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return. (a) If after the date
hereof, a Change of Law or compliance by any Bank (or its Lending Office) with
any request or directive (whether or not having the force of law) of any
Authority:
(i) shall subject any Bank (or its Lending Office) to any tax, duty
or other charge with respect to its Euro-Dollar Loans, its Notes or its
obligation to make Euro-Dollar Loans, or shall change the basis of
taxation of payments to any Bank (or its Lending Office) of the principal
of or interest on its Euro-Dollar Loans or any other amounts due under
this Agreement in respect of its Euro-Dollar Loans or its obligation to
make Euro-Dollar Loans (except for changes in the rate of tax on the
overall net income of such Bank or its Lending Office imposed by the
jurisdiction in which such Bank's principal executive office or Lending
Office is located); or
(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding with respect to any Euro-Dollar Loan any such
requirement included in an applicable Euro-Dollar Reserve Percentage)
against assets of, deposits with or for the account of, or credit extended
by, any Bank (or its Lending Office); or
(iii) shall impose on any Bank (or its Lending Office) or on the
London interbank market any other condition affecting its Euro-Dollar
Loans, its Notes or its obligation to make Euro-Dollar Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Euro-Dollar Loan, or to reduce
the amount of any sum received or receivable by such Bank (or its Lending
Office) under this Agreement or under its Notes with respect thereto, by an
amount deemed by such Bank to be material, then, within 15 days after demand by
such Bank (with a copy to the Agent), the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such increased
cost or reduction.
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(b) If any Bank shall have determined that after the date hereof the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any existing or future law, rule or regulation, or any change
in the interpretation or administration thereof, or compliance by any Bank (or
its Lending Office) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any Authority, has or would have
the effect of reducing the rate of return on such Bank's capital as a
consequence of its obligations hereunder to a level below that which such Bank
could have achieved but for such adoption, change or compliance (taking into
consideration such Bank's policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time, within 15
days after demand by such Bank, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such reduction.
(c) Each Bank will promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. A certificate of any Bank claiming
compensation under this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
(d) The provisions of this Section 8.03 shall be applicable with respect
to any Participant, Assignee or other Transferee, and any calculations required
by such provisions shall be made based upon the circumstances of such
Participant, Assignee or other Transferee.
SECTION 8.04. Base Rate Loans Substituted for Euro-Dollar Loans. If (i)
the obligation of any Bank to make or maintain Euro-Dollar Loans has been
suspended pursuant to Section 8.02 or (ii) any Bank has demanded compensation
under Section 8.03, and the Borrower shall, by at least 5 Euro-Dollar Business
Days' prior notice to such Bank through the Agent, have elected that the
provisions of this Section shall apply to such Bank, then, unless and until
such Bank notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer apply:
(a) all Term Loans and Revolving Credit Loans which would otherwise be
made by such Bank as Euro-Dollar Loans shall be made instead as Base Rate Loans
(in all cases interest and principal on such Term Loans or Revolving Credit
Loans, as the case may be, shall be payable contemporaneously with the related
Euro-Dollar Loans of the other Banks), and
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(b) after each of its Euro-Dollar Loans has been repaid, all payments of
principal which would otherwise be applied to repay such Euro-Dollar Loans
shall be applied to repay its Base Rate Loans instead.
In the event that the Borrower shall elect that the provisions of this Section
shall apply to any Bank, the Borrower shall remain liable for, and shall pay to
such Bank as provided herein, all amounts due such Bank under Section 8.03 in
respect of the period preceding the date of conversion of such Bank's Term
Loans and Revolving Credit Loans resulting from the Borrower's election.
SECTION 8.05. Compensation. Upon the request of any Bank, delivered to
the Borrower and the Agent, the Borrower shall pay to such Bank such amount or
amounts as shall compensate such Bank for any loss, cost or expense incurred by
such Bank as a result of:
(a) any payment or prepayment (pursuant to Section 2.10, Section 2.11 or
otherwise) of a Euro-Dollar Loan or a Money Market Loan on a date other than
the last day of an Interest Period for such Euro-Dollar Loan or Money Market
Loan, as the case may be;
(b) any failure by the Borrower to prepay a Euro-Dollar Loan or a Money
Market Loan on the date for such prepayment specified in the relevant notice of
prepayment hereunder;
(c) any failure by the Borrower to borrow a Euro-Dollar Loan on the date
for the Euro-Dollar Borrowing of which such Euro-Dollar Loan is a part
specified in the applicable Notice of Borrowing delivered pursuant to Section
2.02; or
(d) any failure by the Borrower to borrow a Money Market Loan (with
respect to which the Borrower has accepted a Money Market Quote) on the date
for the Money Market Borrowing of which such Money Market Loan is a part
specified in the applicable Money Market Quote Request delivered pursuant to
Section 2.03;
such compensation to include, without limitation, an amount equal to the
excess, if any, of (x) the amount of interest which would have accrued on the
amount so paid or prepaid or not prepaid or borrowed for the period from the
date of such payment, prepayment or failure to prepay or borrow to the last day
of the then current Interest Period for such Euro-Dollar Loan (or, in the case
of a failure to prepay or borrow, the Interest Period for such Euro-Dollar Loan
which would have commenced on the date of such failure to prepay or borrow) at
the applicable rate of interest for such Euro-Dollar Loan provided for herein
over (y) the amount of interest (as reasonably determined by such Bank) such
Bank would have paid on deposits in Dollars of comparable amounts having terms
comparable to such period placed with it by leading banks in the London
interbank market.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission or
similar writing) and shall be given to such party at its address or telecopy
number set forth on the signature pages hereof or such other address or
telecopy number as such party may hereafter specify for the purpose by notice
to each other party. Each such notice, request or other communication shall be
effective (i) if given by telecopier, when such telecopy is transmitted to the
telecopy number specified in this Section and the telecopy machine used by the
sender provides a written confirmation that such telecopy has been so
transmitted or receipt of such telecopy transmission is otherwise confirmed,
(ii) if given by mail, 72 hours after such communication is deposited in the
mails with first class postage prepaid, addressed as aforesaid, and (iii) if
given by any other means, when delivered at the address specified in this
Section; provided that notices to the Agent under Article II or Article VIII
shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by the Agent or any Bank
in exercising any right, power or privilege hereunder or under any Note or
other Loan Document shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 9.03. Expenses; Documentary Taxes; Indemnification. (a) The
Borrower shall pay (i) all out-of-pocket expenses of the Agent, including fees
and disbursements of special counsel for the Banks and the Agent, in connection
with the preparation of this Agreement and the other Loan Documents, any waiver
or consent hereunder or thereunder or any amendment hereof or thereof or any
Default or alleged Default hereunder or thereunder and (ii) if a Default
occurs, all out-of-pocket expenses incurred by the Agent or any Bank, including
fees and disbursements of counsel, in connection with such Default and
collection and other enforcement proceedings resulting therefrom, including
out-of-pocket expenses incurred in enforcing this Agreement and the other Loan
Documents.
(b) The Borrower shall indemnify the Agent and each Bank against any
transfer taxes, documentary taxes, assessments or charges made by any Authority
by reason of the execution and delivery of this Agreement or the other Loan
Documents.
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(c) The Borrower shall indemnify the Agent, the Banks and each Affiliate
thereof and their respective directors, officers, employees and agents from,
and hold each of them harmless against, any and all losses, liabilities, claims
or damages to which any of them may become subject, insofar as such losses,
liabilities, claims or damages arise out of or result from any actual or
proposed use by the Borrower of the proceeds of any extension of credit by any
Bank hereunder or breach by the Borrower of this Agreement or any other Loan
Document or from any investigation, litigation (including, without limitation,
any actions taken by the Agent or any of the Banks to enforce this Agreement or
any of the other Loan Documents) or other proceeding (including, without
limitation, any threatened investigation or proceeding) relating to the
foregoing, and the Borrower shall reimburse the Agent and each Bank, and each
Affiliate thereof and their respective directors, officers, employees and
agents, upon demand for any expenses (including, without limitation, legal
fees) incurred in connection with any such investigation or proceeding; but
excluding any such losses, liabilities, claims, damages or expenses incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified.
SECTION 9.04. Set-Offs; Sharing of Set-Offs. (a) The Borrower hereby
grants to each Bank, as security for the full and punctual payment and
performance of the obligations of the Borrower under this Agreement, a
continuing lien on and security interest in all deposits and other sums
credited by or due from such Bank to the Borrower or subject to withdrawal by
the Borrower; and regardless of the adequacy of any collateral or other means
of obtaining repayment of such obligations, each Bank may at any time upon or
after the occurrence of any Event of Default, and without notice to the
Borrower, set off the whole or any portion or portions of any or all such
deposits and other sums against such obligations, whether or not any other
Person or Persons could also withdraw money therefrom.
(b) Each Bank agrees that if it shall, by exercising any right of set-off
or counterclaim or otherwise, receive payment of a proportion of the aggregate
amount of principal and interest owing with respect to the Syndicated Revolving
Credit Notes and Term Loan Notes held by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of all
principal and interest owing with respect to the Syndicated Revolving Credit
Note and Term Loan Notes held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the
Syndicated Revolving Credit Notes and Term Loan Notes held by the other Banks
owing to such other Banks, and/or such other adjustments shall be made, as may
be required so that all such payments of principal and interest with respect to
the Syndicated Revolving Credit Notes and Term Loan Notes held by the Banks
owing to such other Banks shall be shared by the Banks pro rata; provided that
(i) nothing in this Section shall impair the right of any Bank to exercise any
right of set-off or counterclaim it may have and to apply the amount subject to
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such exercise to the payment of indebtedness (including, without limitation,
Money Market Loans) of the Borrower other than its indebtedness under the
Syndicated Revolving Credit Notes and Term Loan Notes, and (ii) if all or any
portion of such payment received by the purchasing Bank is thereafter recovered
from such purchasing Bank, such purchase from each other Bank shall be
rescinded and such other Bank shall repay to the purchasing Bank the purchase
price of such participation to the extent of such recovery together with an
amount equal to such other Bank's ratable share (according to the proportion of
(x) the amount of such other Bank's required repayment to (y) the total amount
so recovered from the purchasing Bank) of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount so recovered.
The Borrower agrees, to the fullest extent it may effectively do so under
applicable law, that any holder of a participation in a Syndicated Revolving
Credit Note and Term Loan Note, whether or not acquired pursuant to the
foregoing arrangements, may exercise rights of set-off or counterclaim and
other rights with respect to such participation as fully as if such holder of a
participation were a direct creditor of the Borrower in the amount of such
participation.
SECTION 9.05. Amendments and Waivers. (a) Any provision of this
Agreement, the Notes or any other Loan Documents may be amended or waived if,
but only if, such amendment or waiver is in writing and is signed by the
Borrower and the Required Banks (and, if the rights or duties of the Agent are
affected thereby, by the Agent); provided that no such amendment or waiver
shall, unless signed by all of the Banks, (i) change the Revolving Credit
Commitment or Term Loan Commitment of any Bank or subject any Bank to any
additional obligation, (ii) change the principal of or rate of interest on any
Term Loan or Revolving Credit Loan or change the amount of any fees hereunder,
(iii) change the date fixed for any payment of principal of or interest on any
Term Loan or Revolving Credit Loan or any fees hereunder, (iv) change the
amount of principal, interest or fees due on any date fixed for the payment
thereof under this Agreement, the Notes or any other Loan Document, (v) change
the percentage of the Revolving Credit Commitment or Term Loan Commitment or of
the aggregate unpaid principal amount of the Notes, or the percentage of Banks,
which shall be required for the Banks or any of them to take any action under
this Section or any other provision of this Agreement, (vi) change the manner
of application of any payments made under this Agreement or the Notes, (vii)
release or substitute all or any substantial part of the collateral (if any)
held as security for the Term Loans or the Revolving Credit Loans, (viii) waive
any of the conditions precedent contained in Section 3.01 or Section 3.02, (ix)
change the date fixed for any reduction or termination of the Revolving Credit
Commitments or Term Loan Commitments of any Bank, or (x) release, discharge or
terminate any guaranty given to support payment of the Term Loans or Revolving
Credit Loans.
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(b) The Borrower will not solicit, request or negotiate for or with
respect to any proposed waiver or amendment of any of the provisions of this
Agreement unless each Bank shall be informed thereof by the Borrower and shall
be afforded an opportunity of considering the same and shall be supplied by the
Borrower with sufficient information to enable it to make an informed decision
with respect thereto. Executed or true and correct copies of any waiver or
consent effected pursuant to the provisions of this Agreement shall be
delivered by the Borrower to each Bank forthwith following the date on which
the same shall have been executed and delivered by the requisite percentage of
Banks. The Borrower will not, directly or indirectly, pay or cause to be paid
any remuneration, whether by way of supplemental or additional interest, fee or
otherwise, to any Bank (in its capacity as such) as consideration for or as an
inducement to the entering into by such Bank of any waiver or amendment of any
of the terms and provisions of this Agreement unless such remuneration is
concurrently paid, on the same terms, ratably to all such Banks.
SECTION 9.06. Margin Stock Collateral. Each of the Banks represents to
the Agent and each of the other Banks that it in good faith is not, directly or
indirectly (by negative pledge or otherwise), relying upon any Margin Stock as
collateral in the extension or maintenance of the credit provided for in this
Agreement.
SECTION 9.07. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided that the Borrower may not
assign or otherwise transfer any of its rights under this Agreement, without
the written consent of the Banks and Agent.
(b) Any Bank may at any time sell to one or more Persons (each a
"Participant") participating interests in any Term Loan or Revolving Credit
Loan owing to such Bank, any Note held by such Bank, any Term Loan Commitment
or Revolving Credit Commitment hereunder or any other interest of such Bank
hereunder. In the event of any such sale by a Bank of a participating interest
to a Participant, such Bank's obligations under this Agreement shall remain
unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Note for all purposes
under this Agreement, and the Borrower and the Agent shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. In no event shall a Bank that sells a
participation be obligated to the Participant to take or refrain from taking
any action hereunder except that such Bank may agree that it will not (except
as provided below), without the consent of the Participant, agree to (i) the
change of any date fixed for the payment of principal of or interest on the
related Term Loan or Revolving Credit Loan or Term Loans or Revolving Credit
Loans, (ii) the change of the amount of any principal, interest or fees due on
any date fixed for the payment thereof with respect to the related Term Loan or
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Revolving Credit Loan or Term Loans or Revolving Credit Loans, (iii) the change
of the principal of the related Term Loan or Revolving Credit Loan or Term
Loans or Revolving Credit Loans, (iv) any change in the rate at which either
interest is payable thereon or (if the Participant is entitled to any part
thereof) facility or unused fee is payable hereunder from the rate at which the
Participant is entitled to receive interest or facility or unused fee (as the
case may be) in respect of such participation, (v) the release or substitution
of all or any substantial part of the collateral (if any) held as security for
the Term Loans or Revolving Credit Loans, or (vi) the release of any guaranty
given to support payment of the Term Loans or Revolving Credit Loans. Each
Bank selling a participating interest in any Term Loan or Revolving Credit
Loan, Note, Term Loan Commitment, Revolving Credit Commitment or other interest
under this Agreement shall, within 10 Domestic Business Days of such sale,
provide the Borrower and the Agent with written notification stating that such
sale has occurred and identifying the Participant and the interest purchased by
such Participant. The Borrower agrees that each Participant shall be entitled
to the benefits of Article VIII with respect to its participation in Term Loans
and Revolving Credit Loans outstanding from time to time.
(c) Any Bank may at any time assign to one or more banks or financial
institutions (each an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement, the Notes and the other Loan
Documents, and such Assignee shall assume all such rights and obligations,
pursuant to an Assignment and Acceptance in the form attached hereto as Exhibit
K, executed by such Assignee, such transferor Bank and the Agent (and, in the
case of (i) an Assignee that is not then a Bank or an Affiliate of a Bank; and
(ii) an assignment not made during the existence of a Default or an Event of
Default, by the Borrower); provided that (i) no interest may be sold by a Bank
pursuant to this paragraph (c) unless the Assignee shall agree to assume
ratably equivalent portions of the transferor Bank's Term Loan Commitment and
Revolving Credit Commitment, (ii) the aggregate amount of the Term Loan
Commitment and Revolving Credit Commitment of the assigning Bank being assigned
pursuant to such assignment (determined as of the effective date of the
assignment) shall be equal to $10,000,000 (or any larger multiple of
$1,000,000), (iii) no interest may be sold by a Bank pursuant to this paragraph
(c) to any Assignee that is not then a Bank or an Affiliate of a Bank without
the consent of the Borrower, which consent shall not be unreasonably withheld,
provided that the Borrower's consent shall not be necessary with respect to any
assignment made during the existence of a Default or an Event of Default; (iv)
a Bank may not, at any one time, have more than two (2) Assignees that either:
(y) are not then Banks or an Affiliate of such a Bank; or (z) that were not
previously Banks; (v) no interest may be sold by a Bank that is the Agent or is
designated as a "Co-Agent," "Documentation Agent" or "Syndication Agent" on the
signature pages of this Agreement, without the consent of the Borrower, which
consent may be withheld in the Borrower's sole and absolute discretion, if the
aggregate amount of the Term Loan Commitment and Revolving Credit Commitment of
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the assigning Bank, after giving effect to such assignment, shall be less than
$50,000,000; provided that no consent of the Borrower will be required for
assignments: (1) to the Agent or another Bank designated as a "Co-Agent,"
"Documentation Agent" or "Syndication Agent" on the signature pages of this
Agreement; or (2) occurring during the continuance of a Default or an Event of
Default, and (vi) no interest may be sold by a Bank pursuant to this paragraph
(c) to any Assignee that is not then a Bank or an Affiliate of a Bank, without
the consent of the Agent, which consent shall not be unreasonably withheld,
provided, that, although the Agent's consent may not be necessary with respect
to an Assignee that is then a Bank or an Affiliate of a Bank, no such
assignment shall be effective until the conditions set forth in the following
sentence are satisfied. Upon (A) execution of the Assignment and Acceptance by
such transferor Bank, such Assignee, the Agent and (if applicable) the
Borrower, (B) delivery of an executed copy of the Assignment and Acceptance to
the Borrower and the Agent, (C) payment by such Assignee to such transferor
Bank of an amount equal to the purchase price agreed between such transferor
Bank and such Assignee, and (D) payment by the assigning Bank of a processing
and recordation fee of $2,500 to the Agent, such Assignee shall for all
purposes be a Bank party to this Agreement and shall have all the rights and
obligations of a Bank under this Agreement (including, without limitation, the
rights of a Bank under Section 2.03) to the same extent as if it were an
original party hereto with a Term Loan Commitment and Revolving Credit
Commitment, as the case may be, as set forth in such instrument of assumption,
and the transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by the Borrower, the
Banks or the Agent shall be required. Upon the consummation of any transfer to
an Assignee pursuant to this paragraph (c), the transferor Bank, the Agent and
the Borrower shall make appropriate arrangements so that, if required, new
Notes are issued to each of such Assignee and such transferor Bank.
(d) Subject to the provisions of Section 9.08, the Borrower authorizes
each Bank to disclose to any Participant, Assignee or other transferee (each a
"Transferee") and any prospective Transferee any and all financial and other
information in such Bank's possession concerning the Borrower which has been
delivered to such Bank by the Borrower pursuant to this Agreement or which has
been delivered to such Bank by the Borrower in connection with such Bank's
credit evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater payment under
Section 8.03 than the transferor Bank would have been entitled to receive with
respect to the rights transferred, unless such transfer is made with the
Borrower's prior written consent or by reason of the provisions of Section 8.02
or 8.03 requiring such Bank to designate a different Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
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(f) Anything in this Section 9.07 to the contrary notwithstanding, any
Bank may assign and pledge all or any portion of the Term Loans, Revolving
Credit Loans and/or obligations owing to it to any Federal Reserve Bank or the
United States Treasury as collateral security pursuant to Regulation A of the
Board of Governors of the Federal Reserve System and Operating Circular issued
by such Federal Reserve Bank, provided that any payment in respect of such
assigned Term Loans, Revolving Credit Loans and/or obligations made by the
Borrower to the assigning and/or pledging Bank in accordance with the terms of
this Agreement shall satisfy the Borrower's obligations hereunder in respect of
such assigned Term Loans, Revolving Credit Loans and/or obligations to the
extent of such payment. No such assignment shall release the assigning and/or
pledging Bank from its obligations hereunder.
SECTION 9.08. Confidentiality. Each Bank agrees to exercise its best
efforts to keep any information delivered or made available by the Borrower to
it which is clearly indicated to be confidential information, confidential from
anyone other than persons employed or retained by such Bank who are or are
expected to become engaged in evaluating, approving, structuring or
administering the Term Loans and Revolving Credit Loans; provided, however,
that nothing herein shall prevent any Bank from disclosing such information (i)
to any other Bank, (ii) upon the order of any court or administrative agency,
(iii) upon the request or demand of any regulatory agency or authority having
jurisdiction over such Bank, (iv) which has been publicly disclosed, (v) to the
extent reasonably required in connection with any litigation to which the
Agent, any Bank or their respective Affiliates may be a party, (vi) to the
extent reasonably required in connection with the exercise of any remedy
hereunder, (vii) to such Bank's legal counsel, Affiliates and independent
auditors and (viii) to any actual or proposed Participant, Assignee or other
Transferee of all or part of its rights hereunder which has agreed in writing
to be bound by the provisions of this Section 9.08.
SECTION 9.09. Representation by Banks. Each Bank hereby represents that
it is a commercial lender or financial institution which makes loans in the
ordinary course of its business and that it will make its Term Loans and
Revolving Credit Loans hereunder for its own account in the ordinary course of
such business; provided, however, that, subject to Section 9.07, the
disposition of the Note or Notes held by that Bank shall at all times be within
its exclusive control.
SECTION 9.10. Obligations Several. The obligations of each Bank
hereunder are several, and no Bank shall be responsible for the obligations or
commitment of any other Bank hereunder. Nothing contained in this Agreement
and no action taken by the Banks pursuant hereto shall be deemed to constitute
the Banks to be a partnership, an association, a joint venture or any other
kind of entity. The amounts payable at any time hereunder to each Bank shall
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be a separate and independent debt, and each Bank shall be entitled to protect
and enforce its rights arising out of this Agreement or any other Loan Document
and it shall not be necessary for any other Bank to be joined as an additional
party in any proceeding for such purpose.
SECTION 9.11. Survival of Certain Obligations. Sections 8.03(a),
8.03(b), 8.05 and 9.03, and the obligations of the Borrower thereunder, shall
survive, and shall continue to be enforceable notwithstanding, the termination
of this Agreement and the Revolving Credit Commitments and Term Loan
Commitments and the payment in full of the principal of and interest on all
Term Loans and Revolving Credit Loans.
SECTION 9.12. Georgia Law. This Agreement and each Note shall be
construed in accordance with and governed by the law of the State of Georgia.
SECTION 9.13. Severability. In case any one or more of the provisions
contained in this Agreement, the Notes or any of the other Loan Documents
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein and
therein shall not in any way be affected or impaired thereby and shall be
enforced to the greatest extent permitted by law.
SECTION 9.14. Interest. In no event shall the amount of interest due or
payable hereunder or under the Notes exceed the maximum rate of interest
allowed by applicable law, and in the event any such payment is inadvertently
made to any Bank by the Borrower or inadvertently received by any Bank, then
such excess sum shall be credited as a payment of principal, unless the
Borrower shall notify such Bank in writing that it elects to have such excess
sum returned forthwith. It is the express intent hereof that the Borrower not
pay and the Banks not receive, directly or indirectly in any manner whatsoever,
interest in excess of that which may legally be paid by the Borrower under
applicable law.
SECTION 9.15. Interpretation. No provision of this Agreement or any of
the other Loan Documents shall be construed against or interpreted to the
disadvantage of any party hereto by any court or other governmental or judicial
authority by reason of such party having or being deemed to have structured or
dictated such provision.
SECTION 9.16. Consent to Jurisdiction. The Borrower (a) submits to
personal jurisdiction in the State of Georgia, the courts thereof and the
United States District Courts sitting therein, for the enforcement of this
Agreement, the Notes and the other Loan Documents, (b) waives any and all
personal rights under the law of any jurisdiction to object on any basis
(including, without limitation, inconvenience of forum) to jurisdiction or
venue within the State of Georgia for the purpose of litigation to enforce this
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Agreement, the Notes or the other Loan Documents, and (c) agrees that service
of process may be made upon it in the manner prescribed in Section 9.01 for the
giving of notice to the Borrower. Nothing herein contained, however, shall
prevent the Agent from bringing any action or exercising any rights against any
security and against the Borrower personally, and against any assets of the
Borrower, within any other state or jurisdiction.
SECTION 9.17. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, under seal, by their respective authorized officers as of the
day and year first above written.
MEREDITH CORPORATION
By: /s/ Michael A. Sell
Title: Treasurer
1716 Locust Street
Des Moines, Iowa 50309-3023
Attention: Michael A. Sell
Telecopy number: 515-284-3828
Telephone number: 515-284-2633
With a copy to:
Meredith Corporation
1716 Locust Street
Des Moines, Iowa 50309-3023
Attention: General Counsel
Telecopy Number: (515) 284-3933
Telephone Number: (515) 284-3056
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COMMITMENTS:
WACHOVIA BANK, N.A., as Agent and as a Bank
Revolving Credit Commitment:
$33,333,333
Term Loan Commitment:
$46,666,667 By: /s/ Mark T. Thomas
Title: Vice President
Wachovia Bank, N.A.
Syndication Services
191 Peachtree Street, N.E., Mail Code GA-0423
Atlanta, Georgia 30303-1757
Attention: Elizabeth Dreiling (27th Floor)
Telecopy number: (404) 332-4005
Telephone number: (404) 332-4008
With a copy to:
Wachovia Bank, N.A.
191 Peachtree Street, N.E., Mail Code GA-0370
Atlanta, Georgia 30303-1757
Attention: Mark Thomas (28th Floor)
Telecopy number: (404) 332-6898
Telephone number: (404) 332-6450
Revolving Credit Commitment:
$25,000,000 THE BANK OF NEW YORK,
as Documentation Agent and as a Bank
Term Loan Commitment: By: /s/ Benjamin B. Todres
$35,000,000 Title: Vice President
Lending Office
The Bank of New York
One Wall Street
New York, New York 10286
Attention: Benjamin B. Todres
Telecopy number: (212)635-8593
Telephone number:(212)635-8795
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Revolving Credit Commitment:
$25,000,000 BANKBOSTON, N.A.
as Syndication Agent and as a Bank
Term Loan Commitment: By: /s/ Lenny L. Mason
$35,000,000 Title: Vice President
Lending Office
BankBoston, N.A.
100 Federal Street
Mail Stop: 01-08--08
Boston, Massachusetts 02110
Attention: Lenny L. Mason, Vice President
Telecopy number: (617)434-3401
Telephone number: (617)434-6489
Revolving Credit Commitment:
$25,000,000 THE NORTHERN TRUST COMPANY,
as Co-Agent and as a Bank
Term Loan Commitment: By: /s/Julie J. Wigdale
$35,000,000 Title: Vice President
Lending Office
The Northern Trust Company
50 South LaSalle Street
Chicago, Illinois 60675
Attention: Julie J. Wigdale, Vice President
Telecopy number: (312) 444-5055
Telephone number: (312) 444-4569
Revolving Credit Commitment: MELLON BANK, N.A.,
$15,625,000 as a Bank
Term Loan Commitment: By: /s/ Michael P. Hrycenko
$21,875,000 Title: Vice President
Lending Office
Mellon Bank, N.A.
One Mellon Bank Center
Room 4440
Pittsburgh, Pennsylvania 15258-0001
Attention: Michael P. Hrycenko, Vice President
Telecopy number: (412) 234-6375
Telephone number: (412) 234-1636
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Revolving Credit Commitment SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL
$15,625,000 ASSOCIATION
Term Loan Commitment By: /s/ Ronald K. Rueve
$21,875,000 Title: Vice President
Lending Office
SunTrust Bank, Central Florida,
National Association
Mail Code 0-1043
2000 South Trust Bank
Orlando, Florida 32801
Attention: Stephen L. Leister,
Vice President, National Banking
Telecopy number: (407) 237-6894
Telephone number: (407) 237-4705
Revolving Credit Commitment: THE SAKURA BANK, LIMITED
$10,416,667
Term Loan Commitment: By: /s/ Shunji Sakurai
$14,583,333 Title: Joint General Manager
Lending Office
The Sakura Bank, Limited
227 West Monroe Street, Suite 4700
Chicago, Illinois 60606
Attention: Jane E. Wrightman
Telecopy number: (312) 332-5345
Telephone number: (312) 580-3274
TOTAL COMMITMENTS:
Revolving Credit Commitment:
$150,000,000
Term Loan Commitment:
$210,000,000
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