1
EXHIBIT 10.5
[Execution Copy]
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CREDIT AGREEMENT
dated as of
February 14, 1997
among
HEFTEL BROADCASTING CORPORATION,
THE SUBSIDIARY GUARANTORS PARTY HERETO,
THE LENDERS PARTY HERETO,
THE CHASE MANHATTAN BANK,
as Administrative Agent,
BANK OF MONTREAL,
as Documentation Agent,
and
ABN AMRO BANK N.V.,
THE BANK OF NOVA SCOTIA,
CIBC INC.,
FLEET BANK, N.A.,
THE TORONTO-DOMINION BANK,
and
UNION BANK OF CALIFORNIA, N.A.
as Co-Agents
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TABLE OF CONTENTS
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Classification of Loans and Borrowings . . . . . . . 25
SECTION 1.03. Terms Generally . . . . . . . . . . . . . . . . . . 25
SECTION 1.04. Accounting Terms; GAAP . . . . . . . . . . . . . . . 26
ARTICLE II
The Credits
SECTION 2.01. Commitments . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.02. Loans and Borrowings . . . . . . . . . . . . . . . . 27
SECTION 2.03. Requests for Borrowings . . . . . . . . . . . . . . 28
SECTION 2.04. Funding of Borrowings . . . . . . . . . . . . . . . 29
SECTION 2.05. Interest Elections . . . . . . . . . . . . . . . . . 29
SECTION 2.06. Termination and Reduction of Commitments . . . . . . 31
SECTION 2.07. Repayment of Loans; Evidence of Debt . . . . . . . . 34
SECTION 2.08. Prepayment of Loans . . . . . . . . . . . . . . . . 35
SECTION 2.09. Fees . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 2.10. Interest . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 2.11. Alternate Rate of Interest . . . . . . . . . . . . . 41
SECTION 2.12. Increased Costs . . . . . . . . . . . . . . . . . . 41
SECTION 2.13. Break Funding Payments . . . . . . . . . . . . . . . 43
SECTION 2.14. Taxes . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing
of Set-offs . . . . . . . . . . . . . . . . . . . . . 45
SECTION 2.16. Mitigation Obligations; Replacement of Lenders . . . 47
SECTION 2.17. Letters of Credit . . . . . . . . . . . . . . . . . 48
ARTICLE III
Guarantee by Subsidiary Guarantors
SECTION 3.01. The Guarantee . . . . . . . . . . . . . . . . . . . 54
SECTION 3.02. Obligations Unconditional . . . . . . . . . . . . . 54
SECTION 3.03. Reinstatement . . . . . . . . . . . . . . . . . . . 56
SECTION 3.04. Subrogation . . . . . . . . . . . . . . . . . . . . 56
SECTION 3.05. Remedies . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 3.06. Instrument for the Payment of Money . . . . . . . . 56
SECTION 3.07. Continuing Guarantee . . . . . . . . . . . . . . . . 57
(i)
3
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SECTION 3.08. Rights of Contribution . . . . . . . . . . . . . . . 57
SECTION 3.09. General Limitation on Guarantee Obligations . . . . 58
ARTICLE IV
Representations and Warranties
SECTION 4.01. Organization; Power; Qualification . . . . . . . . . 58
SECTION 4.02. Authorization . . . . . . . . . . . . . . . . . . . 58
SECTION 4.03. Compliance with Other Loan Documents and Contemplated
Transactions . . . . . . . . . . . . . . . . . . . . 59
SECTION 4.04. Business . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 4.05. Licenses, etc . . . . . . . . . . . . . . . . . . . 59
SECTION 4.06. Compliance with Law . . . . . . . . . . . . . . . . 59
SECTION 4.07. Title to Properties . . . . . . . . . . . . . . . . 60
SECTION 4.08. Litigation . . . . . . . . . . . . . . . . . . . . . 60
SECTION 4.09. Taxes . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 4.10. Financial Statements; Material Liabilities . . . . . 60
SECTION 4.11. No Material Adverse Effect . . . . . . . . . . . . . 61
SECTION 4.12. ERISA . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 4.13. Compliance with Regulations G, T, U and X . . . . . 62
SECTION 4.14. Governmental Regulation . . . . . . . . . . . . . . 63
SECTION 4.15. Absence of Default . . . . . . . . . . . . . . . . . 63
SECTION 4.16. Investment Company Act . . . . . . . . . . . . . . . 63
SECTION 4.17. Environmental Matters . . . . . . . . . . . . . . . 63
SECTION 4.18. Certain Agreements . . . . . . . . . . . . . . . . . 64
SECTION 4.19. Valid Issuance of Securities . . . . . . . . . . . . 64
SECTION 4.20. Certain Fees . . . . . . . . . . . . . . . . . . . . 65
SECTION 4.21. Compliance . . . . . . . . . . . . . . . . . . . . . 65
SECTION 4.22. Patents, Etc . . . . . . . . . . . . . . . . . . . . 65
SECTION 4.23. Disclosure . . . . . . . . . . . . . . . . . . . . . 65
SECTION 4.24. Local Marketing Agreements . . . . . . . . . . . . . 66
SECTION 4.25. Merger Agreement . . . . . . . . . . . . . . . . . . 66
ARTICLE V
Conditions
SECTION 5.01. Effective Date . . . . . . . . . . . . . . . . . . . 66
SECTION 5.02. Each Credit Event . . . . . . . . . . . . . . . . . 69
(ii)
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ARTICLE VI
Affirmative Covenants
SECTION 6.01. Financial Statements and Other Information . . . . . 69
SECTION 6.02. ERISA Reporting Requirements . . . . . . . . . . . . 72
SECTION 6.03. Preservation of Existence and Similar Matters. . . . 74
SECTION 6.04. Business; Compliance with Law . . . . . . . . . . . . 74
SECTION 6.05. Maintenance of Properties . . . . . . . . . . . . . . 74
SECTION 6.06. Accounting Methods and Financial Records . . . . . . 75
SECTION 6.07. Insurance . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 6.08. Payment of Taxes and Claims . . . . . . . . . . . . . 75
SECTION 6.09. Visits and Inspections . . . . . . . . . . . . . . . 76
SECTION 6.10 Payment of Indebtedness . . . . . . . . . . . . . . . 76
SECTION 6.11 Use of Proceeds . . . . . . . . . . . . . . . . . . . 76
SECTION 6.12. Environmental Law Compliance . . . . . . . . . . . . 76
SECTION 6.13. Subsidiary Guarantors . . . . . . . . . . . . . . . . 77
ARTICLE VII
Negative Covenants
SECTION 7.01. Indebtedness . . . . . . . . . . . . . . . . . . . . 78
SECTION 7.02. Liens . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 7.03. Investments . . . . . . . . . . . . . . . . . . . . . 79
SECTION 7.04. Amendment and Waiver . . . . . . . . . . . . . . . . 80
SECTION 7.05. Liquidation, Disposition or Acquisition of Assets,
Merger, New Subsidiaries . . . . . . . . . . . . . . . 81
SECTION 7.06. Guarantees . . . . . . . . . . . . . . . . . . . . . 81
SECTION 7.07. Affiliate Transactions . . . . . . . . . . . . . . . 82
SECTION 7.08. Compliance with ERISA . . . . . . . . . . . . . . . . 82
SECTION 7.09. Leverage Ratio . . . . . . . . . . . . . . . . . . . 83
SECTION 7.10. Interest Coverage Ratio . . . . . . . . . . . . . . . 83
SECTION 7.11. Fixed Charges Coverage Ratio . . . . . . . . . . . . 83
SECTION 7.12. Capital Stock of the Subsidiary Guarantors . . . . . 83
SECTION 7.13. Sale and Leaseback . . . . . . . . . . . . . . . . . 84
SECTION 7.14. Sale or Discount of Receivables . . . . . . . . . . . 84
SECTION 7.15. Business of Radio License Subsidiaries . . . . . . . 84
SECTION 7.16. Other Agreements . . . . . . . . . . . . . . . . . . 84
SECTION 7.17. Restricted Payments . . . . . . . . . . . . . . . . . 84
SECTION 7.18. Local Marketing Agreements . . . . . . . . . . . . . 85
(iii)
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ARTICLE VIII
Events of Default . . . . . . . . . . . . . . . . . 85
ARTICLE IX
The Administrative Agent . . . . . . . . . . . . . 90
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. . . . . . . . . . . . . . . . . . . . . . 93
SECTION 10.02. Waivers; Amendments . . . . . . . . . . . . . . . . 94
SECTION 10.03. Expenses; Indemnity: Damage Waiver . . . . . . . . 95
SECTION 10.04. Successors and Assigns . . . . . . . . . . . . . . 97
SECTION 10.05. Survival . . . . . . . . . . . . . . . . . . . . . 99
SECTION 10.06. Counterparts; Integration; Effectiveness . . . . . 100
SECTION 10.07. Severability . . . . . . . . . . . . . . . . . . . 100
SECTION 10.08. Right of Setoff . . . . . . . . . . . . . . . . . . 100
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of
Process . . . . . . . . . . . . . . . . . . . . . . 101
SECTION 10.10. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . 102
SECTION 10.11. Headings . . . . . . . . . . . . . . . . . . . . . 102
SECTION 10.12. Confidentiality . . . . . . . . . . . . . . . . . . 102
(iv)
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SCHEDULES:
Schedule 1.01 -- Restructuring
-- Liens
Schedule 2.01 -- Facility A Commitments
Schedule 4.01(a) -- Subsidiaries
Schedule 4.01(b) -- Good Standing Exceptions
Schedule 4.03 -- Consents and Approvals
Schedule 4.08 -- Existing Litigation
Schedule 4.11 -- Material Adverse Effect
Schedule 4.17 -- Environmental Matters
Schedule 4.19 -- Rights Relating to Pledged Stock
Schedule 4.21 -- FCC Licenses, Permits and Other Authorizations
Schedule 4.22 -- Patents
Schedule 4.24 -- Local Marketing Agreements
Schedule 7.01(f) -- Existing Indebtedness
Schedule 7.03(g) -- Existing Investments
Schedule 7.06 -- Existing Guarantees
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of Counsel to the Obligors
Exhibit B-2 -- Form of Opinion of FCC Counsel to the Obligors
Exhibit C -- Form of Opinion of Special Counsel
Exhibit D -- Form of Pledge Agreement
Exhibit E -- Form of Assumption Agreement
Exhibit F -- Form of Facility B Activation Notice
(v)
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CREDIT AGREEMENT dated as of February 14, 1997, among HEFTEL
BROADCASTING CORPORATION, the SUBSIDIARY GUARANTORS party hereto, the LENDERS
party hereto, and THE CHASE MANHATTAN BANK, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Acquisition" means any transaction, or any series of related
transactions, consummated after the date hereof, by which (i) the Borrower
and/or any of its Subsidiaries acquires the business of or all or substantially
all of the assets of any firm, corporation or division thereof, whether through
purchase of assets or Capital Stock, merger or otherwise or (ii) any Person
that was not theretofore a Subsidiary becomes a Subsidiary.
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Adjusted Operating Cash Flow" means the sum, without
duplication, on a trailing twelve month basis, of (a) Operating Cash Flow, (b)
for any calculation that includes any portion of the Borrower's fiscal year
ended December 31, 1996, Corporate Overhead for such portion of such fiscal
year exceeding $375,000 per month, (c) for any calculation that includes any
period falling on or before April 30, 1997, cash and non-cash charges for the
Restructuring for such period and (d) for any calculation that includes any
period falling on or before February 14, 1997, transaction costs associated
with (i) the 1996 tender offer by Clear Channel Communications, Inc. for the
Borrower's common stock and (ii) the Tichenor Merger for such period; provided
that there shall be added to Adjusted Operating Cash Flow the amount of start-
up losses attributable to any radio station heretofore or hereafter acquired by
the Borrower (including, without limitation, radio stations KSOL/KZOL, KRTX,
KMPQ-AM, WPAT-AM,
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WLXX and KSCA) the format of which is converted into a Spanish-language format
from an English-language format, but only to the extent that (x) such losses
are incurred in the month of such acquisition or earlier commencement of a
Local Marketing Agreement for such station and the twelve months thereafter and
(y) the aggregate amount of such losses for all radio stations does not exceed
$10,000,000 for any period of twelve months of the Borrower.
"Administrative Agent" means The Chase Manhattan Bank, in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"Alternate Base Rate" means, for any day, a rate per annum equal
to the greater of (a) the Prime Rate in effect on such day, and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment.
If the Commitments have terminated or expired, the Applicable Percentages shall
be determined based upon the Commitments most recently in effect, giving effect
to any assignments.
"Applicable Rate" means for Loans of any Type and commitment fees
for each Rate Period (as defined below), the respective rate per annum
indicated below for Loans of such Type or commitment fees, as applicable,
opposite the applicable Leverage Ratio indicated below for such Rate Period:
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Applicable Rate
Range --------------------------------------------------
of ABR Eurodollar Commitment
Leverage Ratio Loans Loans Fee
-------------- ----- ----- ---
Greater than or equal to 6.50 to 1 0.625% 1.875% 0.3750%
Greater than or equal to 6.00 to 1 but less 0.250% 1.500% 0.3750%
than 6.50 to 1
Greater than or equal to 5.50 to 1 but less 0.000% 1.125% 0.3750%
than 6.00 to 1
Greater than or equal to 5.00 to 1 but less 0.000% 0.875% 0.2500%
than 5.50 to 1
Greater than or equal to 4.50 to 1 but less 0.000% 0.750% 0.2500%
than 5.00 to 1
Greater than or equal to 4.00 to 1 but less 0.000% 0.625% 0.2500%
than 4.50 to 1
Greater than or equal to 3.50 to 1 but less 0.000% 0.500% 0.2500%
than 4.00 to 1
Less than 3.50 to 1 0.000% 0.375% 0.1875%
For purposes hereof, (i) a "Rate Period" means (x) initially, the
period commencing on the date hereof (for Facility A Loans or Facility A
Commitments) or the Facility B Activation Date (with respect to Facility B
Loans or Facility B Commitments) to but not including the first Rate Reset Date
(as defined below) thereafter and (y) thereafter, the period commencing on a
Rate Reset Date to but not including the immediately following Rate Reset Date
and (ii) a "Rate Reset Date" means, with respect to any fiscal quarter or
fiscal year, the earlier of (x) the third Business Day after the date on which
the Borrower delivers the Leverage Certificate (as defined below) in respect of
such fiscal quarter or fiscal year, as the case may be, and (y) the date on
which the Borrower is required to have delivered the financial statements under
Section 6.01(a) or (b) in respect of such fiscal quarter or fiscal year, as the
case may be.
The Borrower shall deliver to the Administrative Agent, together
with the financial statements required by Section
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6.01(a) or (b), a certificate of a Financial Officer setting forth a
calculation of the Leverage Ratio as at the last day of the fiscal quarter or
fiscal year, as the case may be, in respect of which such financial statements
are delivered (a "Leverage Certificate"). The Leverage Ratio for any Rate
Period shall be the Leverage Ratio set forth in the applicable Leverage
Certificate as at the last day of the fiscal quarter or fiscal year, as the
case may be, in respect of which such Leverage Certificate is delivered (i.e.,
the Leverage Ratio for the Rate Period commencing on the date on which the
Borrower delivers its financial statements pursuant to Section 6.01(b) for the
fiscal quarter ended on September 30, 1997 shall be the Leverage Ratio as at
September 30, 1997, the Leverage Ratio for the Rate Period commencing on the
date on which the Borrower delivers its financial statements pursuant to
Section 6.01(a) for the fiscal year ended on December 31, 1997 shall be the
Leverage Ratio as at December 31, 1997, and so forth).
Anything in this Agreement to the contrary notwithstanding, the
Applicable Rate shall be the highest rates provided for above (i) during any
period when an Event of Default shall have occurred and be continuing, or (ii)
if the applicable Leverage Certificate shall not be delivered within the time
that the applicable financial statements are required to be delivered by
Section 6.01(a) or (b), as the case may be, (but only, in the case of this
clause (ii), with respect to the portion of such Rate Period prior to the
delivery of such Leverage Certificate).
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.04), and accepted by the Administrative
Agent, in the form of Exhibit A or any other form approved by the
Administrative Agent.
"Assumption Agreement" means an Assumption Agreement
substantially in the form of Exhibit E hereto.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means Heftel Broadcasting Corporation, a Delaware
corporation.
"Borrowing" means Loans of the same Class and Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans,
as to which a single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a
Borrowing in accordance with Section 2.03.
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"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capital Expenditures" means, for any period, expenditures for
the purchase of tangible assets of long-term use which are capitalized in
accordance with GAAP; provided that, Capital Expenditures shall not include
assets acquired through trade without any expenditure of cash, such trade
capital expenditures not to exceed $6,000,000 in aggregate value per year, such
valuation to be determined using the lesser of the fair market value of assets
received or the value of air-time run in exchange for the assets received.
"Capital Lease Obligations" means that portion of any obligation
of any Person as lessee under a lease which at the time would be required to be
capitalized on a balance sheet prepared in accordance with GAAP.
"Capital Stock" means, as to any Person, the equity interests in
such Person, including, without limitation, the shares of each class of capital
stock of any Person that is a corporation and each class of partnership
interests (including, without limitation, general, limited and preference
units) in any Person that is a partnership.
"Casualty Event" means, with respect to any property of any
Person, any loss of or damage to, or any condemnation or other taking of, such
property for which such Person or any of its subsidiaries receives insurance
proceeds, or proceeds of a condemnation award or other compensation.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.12(b), by any lending office of such Lender or by
such Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Class", when used in reference to any Loan, Borrowing or
Commitment, refers to whether such Loan, or the Loans comprising such
Borrowing, are Facility A Loans or Facility B
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Loans or whether such Commitment is a Facility A Commitment or a Facility B
Commitment.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Commitments" means the Facility A Commitments and the Facility B
Commitments.
"Communications Act" means, collectively, the Communications Act
of 1934, as amended and the rules and regulations promulgated thereunder, as
from time to time in effect.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Controlled Group" means, as to any Person, all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) which are under common control with such Person and which,
together with such Person, are treated as a single employer under Section
414(b), (c), (m) or (o) of the Code; provided that, the Subsidiaries shall be
deemed to be members of the Borrower's Controlled Group, and the Borrower and
any other entities (whether incorporated or not incorporated) which are under
common Control with the Borrower and which, together with the Borrower, are
treated as a single employer under Section 414(b), (c), (m) or (o) of the Code,
shall be deemed to be members of the Borrower's Controlled Group on and after
the Effective Date.
"Corporate Overhead" means, for any period, the actual corporate
overhead expense of the Borrower and its Subsidiaries for such period, and
including for any period prior to the Tichenor Merger, the actual corporate
overhead of Tichenor for such period.
"Debt Service" means, for any period, the sum, for the Borrower
and its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) the amount, if any, by which the
aggregate principal amount of Facility A or Facility B Loans outstanding
hereunder at the beginning of such period shall exceed the aggregate amount of
the Facility A or Facility B Commitments, as the case may be, scheduled to be
in effect at the end of such period after giving effect to any reductions of
such Commitments scheduled to occur during such period pursuant to Section 2.06
hereof plus (b) all
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payments of principal of other Indebtedness scheduled to be made during such
period, plus (c) all Interest Expense for such period.
"Default" means any event or condition which constitutes an Event
of Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disposition" means any sale, assignment, transfer or other
disposition of any property (whether now owned or hereafter acquired) by the
Borrower or any of its Subsidiaries to any other Person. The term
"Disposition" shall include any arrangement whereby the Borrower or a
Subsidiary enters into a Local Marketing Agreement in respect of a station for
which the FCC license is owned by it, and a Person other than the Borrower or
such Subsidiary provides programming services and procures advertising for such
station pursuant to such Local Marketing Agreement.
"dollars" or "$" refers to lawful money of the United States of
America.
"Effective Date" means the date on which the conditions specified
in Section 5.01 are satisfied (or waived in accordance with Section 10.02).
"Environmental Laws" means Laws pertaining to health or the
environment, including without limitation, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986 (as amended from time to time,
"CERCLA"), the Resource Conservation and Recovery Act of 1976, as amended by
the Used Oil Recycling Act of 1980, the Solid Waste Disposal Act amendments of
1980, and the Hazardous and Solid Waste Amendments of 1984 (as amended from
time to time, "RCRA"), the Texas Water Code, and the Texas Solid Waste Disposal
Act.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any
Subsidiary directly or indirectly resulting from or based upon (a) violation of
any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the release or threatened release of any Hazardous
Materials into the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
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"Equity Issuance" means (a) any issuance or sale by the Borrower
or any of its Subsidiaries after the Effective Date of (i) any of its Capital
Stock (other than any Capital Stock issued to directors, officers or employees
of the Borrower or any of its Subsidiaries pursuant to employee benefit plans
established in the ordinary course of business), (ii) any warrants or options
exercisable in respect of its Capital Stock (other than any warrants or options
issued to directors, officers or employees of the Borrower or any of its
Subsidiaries pursuant to employee benefit plans established in the ordinary
course of business and any Capital Stock of the Borrower issued upon the
exercise of such warrants or options) or (iii) any other security or instrument
representing an equity interest (or the right to obtain any equity interest) in
the Borrower or any of its Subsidiaries or (b) the receipt by the Borrower or
any of its Subsidiaries after the Effective Date of any capital contribution
(whether or not evidenced by any equity security issued by the recipient of
such contribution); provided that, Equity Issuance shall not include (x) any
such issuance or sale by any Subsidiary to the Borrower or any Subsidiary, or
(y) any capital contribution by the Borrower or any Subsidiary of the Borrower
to any Subsidiary of the Borrower.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any
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Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VIII.
"Excess Cash Flow" means, for any period, the excess of (a)
Operating Cash Flow for such period over (b) the sum of (i) Debt Service for
such period plus (ii) the aggregate amount of all Capital Expenditures made
during such period plus (iii) the aggregate amount paid, or required to be
paid, in cash in respect of income taxes for such period plus (iv) any decrease
in Working Investment for such period, minus (v) any increase in Working
Investment for such period.
"Excluded Disposition" means any Disposition of any property sold
or disposed of in the ordinary course of business and on ordinary business
terms (including sales of inventory and obsolete, worn-out or surplus
property).
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender or any other recipient of any payment to be made by or on account of
any obligation of the Borrower hereunder, (a) income or franchise taxes imposed
on (or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which
its principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.16(b)), any withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement or is attributable to such Foreign Lender's failure or inability to
comply with Section 2.14(e), except to the extent that such Foreign Lender's
assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.14(a).
Credit Agreement
16
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"Existing Credit Agreements" means (i) the Credit Agreement dated
August 5, 1996 among the Borrower, certain lenders party thereto, and
NationsBank of Texas, N.A., as administrative lender, (ii) the Second Amended
and Restated Credit Agreement dated August 9, 1994 among Tichenor, certain
lenders party thereto, and NationsBank of Texas, N.A., as administrative
lender, as amended to date, and (iii) the Loan Agreement dated July 9, 1996
between TMS Assets California, Inc., as borrower, and Clear Channel
Communications, Inc., as lender.
"Facility A Availability Period" means the period from and
including the Effective Date to but excluding the earlier of the Facility A
Commitment Termination Date and the date of termination of the Facility A
Commitments.
"Facility A Commitment" means, with respect to each Facility A
Lender, the commitment of such Facility A Lender to make Facility A Loans and
to acquire participations in Letters of Credit hereunder, as such commitment
may be (a) reduced from time to time pursuant to Section 2.06 or 2.08 and (b)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 10.04. The initial amount of each Lender's Facility
A Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Facility A Commitment, as
applicable. The aggregate original amount of the Facility A Commitments is
$300,000,000.
"Facility A Commitment Reduction Dates" means the 22 consecutive
Quarterly Dates beginning on the Quarterly Date falling on or nearest to
September 30, 1999 and ending on the Quarterly Date falling on or nearest to
December 31, 2004.
"Facility A Commitment Termination Date" means the Quarterly Date
falling on or nearest to December 31, 2004.
"Facility A Lenders" means (a) on the date hereof, the Lenders on
the signature pages hereof having Facility A Commitments and (b) thereafter,
the Lenders from time to time holding Facility A Commitments or Facility A
Loans after giving effect to any assignments thereof permitted by Section
10.04.
"Facility A Loans" means the loans provided for by Section
2.01(a).
"Facility B Activation Date" means the date designated as such in
the Facility B Activation Notice.
"Facility B Activation Notice" means a notice substantially in
the form of Exhibit F hereto.
Credit Agreement
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"Facility B Availability Period" means the period from and
including the Facility B Activation Date to but excluding the earlier of the
Facility B Commitment Termination Date and the date of termination of the
Facility B Commitments.
"Facility B Commitment" means, with respect to each Facility B
Lender, the commitment of such Facility B Lender to make Facility B Loans
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.06 or 2.08 and (b) reduced or increased from time to time pursuant to
assignments by or to such Facility B Lender pursuant to Section 10.04. The
initial amount of each Lender's Facility B Commitment will be set forth in the
Facility B Activation Notice, or in the Assignment and Acceptance pursuant to
which such Lender shall have assumed its Facility B Commitment, as applicable.
The aggregate amount of the Facility B Commitments on the date hereof is zero
and shall not at any time exceed $150,000,000.
"Facility B Commitment Reduction Dates" means the 21 consecutive
Quarterly Dates beginning on the Quarterly Date falling on or nearest to June
30, 2000 and ending on the Quarterly Date falling on or nearest to June 30,
2005.
"Facility B Commitment Termination Date" means the Quarterly Date
falling on or nearest to June 30, 2005.
"Facility B Lenders" means (a) on the Facility B Activation Date,
the Lenders signatory to the Facility B Activation Notice and (b) thereafter,
the Lenders from time to time holding Facility B Commitments or Facility B
Loans after giving effect to any assignments thereof permitted by Section
10.04.
"Facility B Loans" means the loans provided for by Section
2.01(b).
"FCC" means the Federal Communications Commission, or any
governmental agency succeeding to the functions thereof.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average (rounded upwards,
if necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
Credit Agreement
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"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Fixed Charges" means, for any period, the sum for the Borrower
and its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP) of the following, in each case to the extent paid or
payable in cash for such period: (a) Debt Service, (b) payments in respect of
Capitalized Lease Obligations, (c) Capital Expenditures (other than Capital
Expenditures associated with FCC-approved upgrades of transmitting facilities),
(d) Federal, state, and local tax payments, and (e) Restricted Payments;
provided that, for any calculation of Fixed Charges, Restricted Payments shall
not include (i) any redemptions by the Borrower of its Capital Stock and (ii)
Restricted Payments made by Tichenor prior to the Tichenor Merger.
"Fixed Charges Coverage Ratio" means, as at any date, the ratio
for the Borrower and its Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP) of (a) Adjusted Operating Cash
Flow for the period of four consecutive fiscal quarters ending on or most
recently ended prior to such date to (b) Fixed Charges for such period.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation
Credit Agreement
19
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or to purchase (or to advance or supply funds for the purchase of) any security
for the payment thereof, (b) to purchase or lease property, securities or
services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation or (d) as an account party in respect of any letter of credit or
letter of guaranty issued to support such Indebtedness or obligation; provided
that the term Guarantee shall not include endorsements for collection or
deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging
arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances.
The Indebtedness of any Person shall include the Indebtedness of any other
entity (including any partnership in which such Person is a general partner) to
the
Credit Agreement
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extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Coverage Ratio" means, as at any date, the ratio for
the Borrower and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP) of (a) Adjusted Operating Cash Flow for
the period of four consecutive fiscal quarters ending on or most recently ended
prior to such date to (b) Interest Expense for such period.
"Interest Election Request" means a request by the Borrower to
convert or continue a Borrowing in accordance with Section 2.05.
"Interest Expense" means, for any period, the sum, for the
Borrower and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of all interest in respect of
Indebtedness (including imputed interest expense in respect of Capital Lease
Obligations, if any) paid, accrued or capitalized during such period.
Notwithstanding the foregoing, for any period including the
Effective Date for which Interest Expense shall be calculated, Interest Expense
shall be determined on a pro forma basis as if the Tichenor Merger had been
consummated on the first day of such period.
"Interest Payment Date" means (a) with respect to any ABR Loan,
the last day of each March, June, September and December, and (b) with respect
to any Eurodollar Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period.
"Interest Period" means, with respect to any Eurodollar Loan,
each period commencing on the date such Eurodollar Loan is made or converted
from an ABR Loan or the last day of the next preceding Interest Period for such
Loan and ending on the numerically corresponding day in the first, second,
third or sixth or (with the approval of all of the Lenders) ninth or twelfth
calendar month thereafter, as the Borrower may select, except that each
Interest Period which commences on the last
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21
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Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar
month. Notwithstanding the foregoing:
(a) if any Interest Period for any Facility A Loan would
otherwise end after the Facility A Commitment Termination Date, such
Interest Period shall end on the Facility A Commitment Termination Date;
(b) no Interest Period for any Facility A Loan may commence
before and end after any Facility A Commitment Reduction Date unless,
after giving effect thereto, the sum of the aggregate principal amount
of the Facility A Loans having Interest Periods which end after such
Facility A Commitment Reduction Date shall be equal to or less than the
aggregate amount of the Facility A Commitments scheduled to be
outstanding after giving effect to the reductions thereof to occur on
such Facility A Commitment Reduction Date;
(c) if any Interest Period for any Facility B Loan would
otherwise end after the Facility B Commitment Termination Date, such
Interest Period shall end on the Facility B Commitment Termination Date;
(d) no Interest Period for any Facility B Loan may commence
before and end after any Facility B Commitment Reduction Date unless,
after giving effect thereto, the sum of the aggregate principal amount
of the Facility B Loans having Interest Periods which end after such
Facility B Commitment Reduction Date shall be equal to or less than the
aggregate amount of the Facility B Commitments scheduled to be
outstanding after giving effect to the reductions thereof to occur on
such Facility B Commitment Reduction Date;
(e) each Interest Period which would otherwise end on a day
which is not a Business Day shall end on the next succeeding Business
Day (or, if such next succeeding Business Day falls in the next
succeeding calendar month, on the next preceding Business Day); and
(f) notwithstanding the foregoing clauses (a) through (d), no
Interest Period shall have a duration of less than one month and, if the
Interest Period for any Eurodollar Loan would otherwise be a shorter
period, such Loan shall not be available hereunder.
"Investment" means, for any Person: (a) the purchase (whether
for cash, property, services or securities or otherwise)
Credit Agreement
22
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of capital stock, bonds, notes, debentures, partnership or other ownership
interests or other securities of any other Person or any agreement to make any
such purchase (including, without limitation, any "short sale" or any sale of
any securities at a time when such securities are not owned by the Person
entering into such short sale); (b) the making of any deposit with, or advance,
loan or other extension of credit to, any other Person (including the purchase
of property from another Person subject to an understanding or agreement,
contingent or otherwise, to resell such property to such Person, but excluding
any such advance, loan or extension of credit having a term not exceeding 90
days representing the purchase price of inventory or supplies sold in the
ordinary course of business); or (c) the entering into of any Guarantee of, or
other contingent obligation with respect to, Indebtedness or other liability of
any other Person and (without duplication) any amount committed to be advanced,
lent or extended to such Person.
"Issuing Bank" means The Chase Manhattan Bank, in its capacity as
the issuer of Letters of Credit hereunder, and its successors in such capacity
as provided in Section 2.17(i).
"Law" means (a) in respect of any Person, all provisions of
constitutions, statutes, rules, regulations, courts and orders of governmental
bodies or regulatory agencies applicable to such Person and its properties,
including, without limiting the foregoing, all orders and decrees of all courts
and arbitrators in proceedings or actions to which the Person in question is a
party, and (b) in respect of contracts relating to interest or finance charges
that are made or performed in the State of Texas, "Law" shall mean the laws of
the United States of America, including without limitation 12 United States
Code Sections 85 and 86, as amended from time to time, and any other statute of
the United States of America now or at any time hereafter prescribing the
maximum rates of interest on loans and extensions of credit, and the laws of
the State of Texas, including, without limitation, Article 5069-1.04, Title 79,
Revised Civil Statutes of Texas, 1925, as amended, and any other statute of the
State of Texas now or at any time hereafter prescribing maximum rates of
interest on loans and extensions of credit; provided that, the parties hereto
agree that the provisions of Chapter 15, Title 79, Revised Civil Statutes of
Texas, 1925, as amended, shall not apply to Borrowings, this Agreement or any
other Loan Documents.
"LC Disbursement" means a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at
Credit Agreement
23
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such time plus (b) the aggregate amount of all LC Disbursements that have not
yet been reimbursed by or on behalf of the Borrower at such time. The LC
Exposure of any Lender at any time shall be its Applicable Percentage of the
total LC Exposure at such time.
"Lenders" means the Facility A Lenders and the Facility B
Lenders.
"Letter of Credit" means any letter of credit issued pursuant to
this Agreement.
"Leverage Ratio" means, as at any date, the ratio for the
Borrower and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP) of (a) all Indebtedness on such date to
(b) Adjusted Operating Cash Flow.
"LIBO Rate", with respect to any Eurodollar Borrowing for any
Interest Period, means the arithmetic mean (rounded upwards, if necessary, to
the next 1/16 of 1%) at which dollar deposits of $5,000,000 and a maturity
comparable to such Interest Period are offered by the principal London office
of the Reference Banks in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, hypothecation, encumbrance, charge or security interest
in, on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loans" means the Facility A Loans and Facility B Loans.
"Loan Documents" means this Agreement, the Pledge Agreement, and
any Assumption Agreement.
"Local Marketing Agreement" means any time brokerage agreements,
local market affiliation agreements or related or similar agreements entered
into between the Borrower or any Subsidiary and any other Person, as any of the
above may be amended, substituted, replaced or modified.
"Material Adverse Effect" means a material adverse effect on (a)
the business, assets, properties, prospects or condition, financial or
otherwise, of the Borrower and the
Credit Agreement
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Subsidiaries taken as a whole, (b) the ability of the Borrower or any
Subsidiary Guarantor to perform any of its obligations under this Agreement or
any of the other Loan Documents, or (c) the rights of or benefits available to
the Lenders under this Agreement or any of the other Loan Documents.
"Merger Agreement" means the Amended and Restated Agreement and
Plan of Merger between Clear Channel Communications, Inc. and Tichenor dated as
of October 10, 1996.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Necessary Authorization" means any license, permit, consent,
authorization from, or any filing or registration with, any governmental or
other authority (including, without limitation, the FCC) necessary to enable
the Borrower or any Subsidiary to maintain and operate its business and
properties or to execute or deliver, or to perform its obligations under, any
Loan Document.
"Net Available Proceeds" means:
(i) in the case of any Casualty Event, the aggregate amount
of proceeds of insurance, condemnation awards and other compensation
received by the Borrower and its Subsidiaries in respect of such
Casualty Event net of (A) reasonable expenses incurred by the Borrower
and its Subsidiaries in connection therewith, (B) contractually required
repayments of Indebtedness to the extent secured by a Lien on such
property or contractually required payments to a lessor in respect of
such property and (C) any income and transfer taxes payable by the
Borrower or any of its Subsidiaries in respect of such Casualty Event;
(ii) in the case of any Equity Issuance, the aggregate
amount of all cash received by the Borrower and/or its Subsidiaries in
respect of such Equity Issuance net of expenses incurred by the Borrower
and/or its Subsidiaries in connection therewith; and
(iii) in the case of any Disposition, an amount (not less
than zero) equal to the amount of Net Cash Payments received in
connection with such Disposition, provided that, in the case of a
Disposition that consists of entering into a Local Marketing Agreement,
the Net Available Proceeds shall not include any Net Cash Payments
received in respect
Credit Agreement
25
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of such Disposition that are included in Operating Cash Flow.
"Net Cash Payments" shall mean, with respect to any Disposition,
the aggregate amount of all cash payments, and the fair market value of any
non-cash consideration, received by the Borrower and its Subsidiaries directly
or indirectly in connection with such Disposition; provided that (a) Net Cash
Payments shall be net of (i) the amount of any legal, title and recording tax
expenses, commissions and other fees and expenses paid by the Borrower and its
Subsidiaries in connection with such Disposition and (ii) any Federal, state
and local income or other taxes estimated to be payable by the Borrower and its
Subsidiaries as a result of such Disposition (but only to the extent that such
estimated taxes are in fact paid to the relevant Federal, state or local
governmental authority within three months of the date of such Disposition) and
(b) Net Cash Payments shall be net of any repayments by the Borrower or any of
its Subsidiaries of Indebtedness to the extent that (i) such Indebtedness is
secured by a Lien on the property that is the subject of such Disposition and
(ii) the transferee of (or holder of a Lien on) such property requires that
such Indebtedness be repaid as a condition to the purchase of such property.
"Obligations" means (a) all obligations of any nature (whether
matured or unmatured, fixed or contingent) of the Borrower or any Subsidiary
Guarantor to the Lenders under the Loan Documents, as they may be amended from
time to time, and (b) all obligations of the Borrower or any Subsidiary
Guarantor for losses, damages, expenses or any other liabilities of any kind
that any Lender may suffer by reason of a breach by the Borrower or any
Subsidiary Guarantor of any obligation, covenant or undertaking with respect to
any Loan Document.
"Obligors" means the Borrower and the Subsidiary Guarantors.
"Operating Cash Flow" means, for any period, the sum for the
Borrower and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of (a) pre-tax net income (excluding
therefrom (i) any items of extraordinary gain, including net gains on the sale
of assets other than asset sales in the ordinary course of business, and (ii)
any items of extraordinary loss, including net losses on the sale of assets
other than asset sales in the ordinary course of business), plus (b) Interest
Expense plus (c) depreciation and amortization and other non-cash expenses.
Operating Cash Flow shall be adjusted to exclude, without duplication, (i) any
extraordinary non-cash items deducted from or included in the calculation of
pre-tax net income, (ii) any accrued but not paid
Credit Agreement
26
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income from Investments and (iii) earnings and losses of non-consolidated
entities accounted for under the equity method in accordance with GAAP.
Notwithstanding the foregoing, (i) for any period including the
Effective Date for which Operating Cash Flow shall be calculated, Operating
Cash Flow shall be determined on a pro forma basis as if the Tichenor Merger
had been consummated on the first day of such period and (ii) in determining
Cash Flow for any period for purposes of the determination of the Leverage
Ratio hereunder, appropriate adjustments shall be made to take into account the
effect of any acquisition or Disposition (or discontinuance of operations)
during such period, as if such acquisition or Disposition (or discontinuance)
had occurred on the first day of such period.
"Original Aggregate Facility A Commitment" means $300,000,000.
"Original Aggregate Facility B Commitment" means the amount set
forth in the Facility B Activation Notice, which amount shall be not less than
$10,000,000 and not more than $150,000,000.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Permitted Liens" means, as applied to any Person:
(i) any Lien in favor of the Lenders to secure the
Obligations hereunder;
(ii) (a) Liens on real estate for real estate taxes not yet
delinquent, (b) Liens created by lease agreements to secure the payments
of rental amounts and other sums not yet due thereunder, (c) Liens on
leasehold interests created by the lessor in favor of any mortgagee of
the leased premises, and (d) Liens for taxes, assessments, governmental
charges, levies or claims that are being diligently contested in good
faith by appropriate proceedings and for which adequate reserves shall
have been set aside on such Person's books, but only so long as no
foreclosure, restraint, sale or
Credit Agreement
27
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similar proceedings have been commenced with respect thereto;
(iii) Liens of carriers, warehousemen, mechanics, laborers
and materialmen and other similar Liens incurred in the ordinary course
of business for sums not yet due or being contested in good faith, if
such reserve or appropriate provision, if any, as shall be required by
GAAP shall have been made therefor;
(iv) Liens incurred in the ordinary course of business in
connection with worker's compensation, unemployment insurance or similar
legislation;
(v) easements, right-of-way, restrictions and other similar
encumbrances on the use of real property which do not interfere with the
ordinary conduct of the business of such Person;
(vi) Liens created to secure the purchase price of tangible
personal property acquired by such Person or created to secure
Indebtedness permitted by Section 7.01(d) in an amount not to exceed
$5,000,000 in the aggregate, which is incurred solely for the purpose of
financing the acquisition of such assets and incurred at the time of
acquisition, so long as each such Lien shall at all times be confined
solely to the asset or assets so acquired (and proceeds thereof), and
refinancings thereof so long as any such Lien remains solely on the
asset or assets acquired and the amount of Indebtedness related thereto
is not increased;
(vii) Liens in respect of judgments or awards for which
appeals or proceedings for review are being prosecuted and in respect of
which a stay of execution upon any such judgements or awards shall have
been secured, provided that (a) such Person shall have established
adequate reserves for such judgments or awards, (b) such judgments or
awards shall be fully insured and the insurer shall not have denied
coverage, or (c) such judgments or awards shall have been bonded to the
satisfaction of the Required Lenders; and
(viii) any Liens existing on the Effective Date which are
described on Schedule 1.01 hereto, and Liens resulting from the
refinancing of the related Indebtedness, provided that the Indebtedness
secured thereby shall not be increased and the Liens shall not cover
additional assets of the Borrower.
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"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower
or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Pledge Agreement" means a Pledge Agreement among the Borrower
and Subsidiary Guarantors, as Pledgors and the Administrative Agent,
substantially in the form of Exhibit D attached hereto.
"Pledged Stock" means all Capital Stock pledged or to be pledged
pursuant to the terms of the Pledge Agreement.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by The Chase Manhattan Bank as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective from and including the date such change is publicly
announced as being effective.
"Quarterly Dates" means the last Business Day of March, June,
September and December in each year, the first of which will be the first such
date after the date of this Agreement.
"Radio License Subsidiary" means KCYT-FM License Corp., KECS-FM
License Corp., KESS-AM License Corp., KESS-TV License Corp., KHCK-FM License
Corp., KICI-AM License Corp., KICI-FM License Corp., KLSQ-AM License Corp.,
KLVE-FM License Corp., KMRT-AM License Corp., KTNQ-AM License Corp., KTNQ/KLVE,
Inc., License Corp. No. 1, License Corp. No. 2, WADO-AM License Corp., WGLI-AM
License Corp., WLXX-AM License Corp., WPAT-AM License Corp., WQBA-AM License
Corp., WQBA-FM License Corp., Tichenor License Corporation, and TMS License
California, Inc.
"Reference Banks" means The Chase Manhattan Bank and Bank of
Montreal.
"Register" has the meaning set forth in Section 10.04.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
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"Release Date" means the date on which all Obligations due and
owing have been paid and performed in full, and the Commitments have been
terminated.
"Reportable Event" shall have the meaning set forth in Title IV
of ERISA.
"Required Facility A Lenders" means, at any time, Lenders having
Facility A Loans, LC Exposure and unused Facility A Commitments representing at
least 51% of the sum of the total Facility A Loans, LC Exposure and unused
Facility A Commitments at such time.
"Required Facility B Lenders" means, at any time, Lenders having
Facility B Loans and unused Facility B Commitments representing at least 51% of
the sum of the total Facility B Loans and unused Facility B Commitments at such
time.
"Required Lenders" means, at any time, Required Facility A
Lenders and Required Facility B Lenders.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any shares of
any class of Capital Stock of the Borrower, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on account of the purchase, redemption, retirement, acquisition, cancellation
or termination of any such shares of Capital Stock of the Borrower or any
option, warrant or other right to acquire any such shares of Capital Stock of
the Borrower.
"Restructuring" means the losses, including write-off charges,
associated with the following operations that the Borrower has determined to be
discontinued or restructured: (i) TC Television, Inc., and (ii) the items
listed on Schedule 1.01 hereto.
"Senior Officer" means the Person or Persons exercising the
functions of the chief executive officer or chief financial officer of the
Borrower.
"S&P" means Standard & Poor's Ratings Services.
"Special Counsel" means Milbank, Tweed, Hadley & McCloy, in its
capacity as special counsel to The Chase Manhattan Bank, as Administrative
Agent of the credit facilities contemplated hereby.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the
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denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject with respect to the Adjusted LIBO Rate, for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those
imposed pursuant to such Regulation D of the Board. Eurodollar Loans shall be
deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D
of the Board or any comparable regulation. The Statutory Reserve Rate shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage. The Statutory Reserve Rate on the Effective Date is 0%.
"subsidiary" means, with respect to any Person (the "parent") at
any date, any corporation, limited liability company, partnership, association
or other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as
any other corporation, limited liability company, partnership, association or
other entity of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, Controlled or held.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Guarantors" means the Subsidiaries listed on the
signature pages hereto and any other party that becomes a Subsidiary Guarantor
by executing and delivering an Assumption Agreement.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Tichenor" means Tichenor Media System, Inc., a Texas
corporation.
"Tichenor Merger" means the merger of a subsidiary of the
Borrower with and into Tichenor on the Effective Date, with Tichenor as the
surviving corporation, in accordance with the terms of the Merger Agreement.
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"Transactions" means the execution, delivery and performance by
the Obligors of the respective Loan Documents to which they are parties, the
borrowing by the Borrower of Loans and the issuance of Letters of Credit
hereunder, the use of the proceeds thereof, the Tichenor Merger and the
consummation of the transactions contemplated hereby.
"Type", when used in reference to any Loan or Borrowing, refers
to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"Wholly Owned Subsidiary" means, with respect to any Person, any
corporation, partnership or other entity of which all of the equity securities
or other ownership interests (other than, in the case of a corporation,
directors' qualifying shares) are directly or indirectly owned or controlled by
such Person or one or more Wholly Owned Subsidiaries of such Person or by such
Person and one or more Wholly Owned Subsidiaries of such Person.
"Withdrawal Liability" means liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Working Investment" means, at any time, the sum for the Borrower
and its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), in each case generated in the ordinary course of
business, of the following: (a) net inventory at such time; plus (b) net
accounts and current notes receivable at such time; minus (c) net accounts and
current notes payable (excluding current notes payable to financial
institutions in respect of Indebtedness) at such time; minus (d) accrued
expenses at such time; minus (e) current accrued taxes at such time; provided
that, barter receivables and barter payables shall be excluded from all
calculations of Working Investment.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Facility A Loan") or by Type (e.g., a "Eurodollar Loan") or by Class
and Type (e.g., a "Eurodollar Facility A Loan"). Borrowings also may be
classified and referred to by Class (e.g., a "Facility A Borrowing") or by Type
(e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar
Facility A Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and
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neuter forms. The words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation". The word "will" shall be
construed to have the same meaning and effect as the word "shall". Unless the
context requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not
to any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments.
(a) Subject to the terms and conditions set forth herein, each
Facility A Lender agrees to make Facility A Loans to the Borrower from time to
time during the Facility A Availability Period in an aggregate principal amount
at any one time
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outstanding not exceeding such Facility A Lender's Facility A Commitment.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Facility A Loans.
(b) After the date hereof and on or before March 31, 2000, the
Borrower and all or certain of the Facility A Lenders may, with the consent of
the Administrative Agent, one time only, agree that such Facility A Lenders
shall become Facility B Lenders by executing and delivering to the
Administrative Agent the Facility B Activation Notice specifying the respective
Facility B Commitments of the Facility B Lenders and the Facility B Activation
Date and otherwise duly completed. Each Facility B Lender agrees to make
Facility B Loans to the Borrower from time to time during the Facility B
Availability Period in an aggregate principal amount at any one time
outstanding not exceeding such Facility B Lender's Facility B Commitment.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Facility B Loans.
SECTION 2.02. Loans and Borrowings.
(a) Each Loan of a particular Class shall be made as part of a
Borrowing consisting of Loans of such Class made by the Lenders ratably in
accordance with their respective Commitments of such Class. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Loans as required.
(b) Subject to Section 2.11, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request in
accordance herewith. Each Lender at its option may make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $3,000,000. At the time that
each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that
is an integral multiple of $100,000 and not less than $1,000,000. Borrowings
of more than one Type and Class may be outstanding at the same time; provided
that there shall not at any time be more than a total of ten Eurodollar
Borrowings outstanding.
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(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Facility A Commitment Termination Date (with respect to Facility A
Loans) or the Facility B Commitment Termination Date (with respect to Facility
B Loans).
SECTION 2.03. Requests for Borrowings. To request a Borrowing,
the Borrower shall notify the Administrative Agent of such request by telephone
(a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York
City time, three Business Days before the date of the proposed Borrowing or (b)
in the case of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) the Class and aggregate amount of the requested
Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.04.
If no election as to Class is specified, then the requested Borrowing shall be
a Facility A Borrowing until Facility A is fully drawn, and then shall be a
Facility B Borrowing (if the Facility B Activation Date shall have occurred
pursuant to the Facility B Activation Notice). If no election as to the Type
of Borrowing is specified, then the requested Borrowing shall be an ABR
Borrowing. If no Interest Period is specified with respect to any requested
Eurodollar Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month's
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duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it hereunder
on the proposed date thereof by wire transfer of immediately available funds by
1:00 p.m., New York City time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders. The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent in New York City and designated by the
Borrower in the applicable Borrowing Request.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its
share of the applicable Borrowing available to the Administrative Agent, then
the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date such amount is made
available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Lender, the Federal Funds
Effective Rate or (ii) in the case of the Borrower, the interest rate
applicable to ABR Loans. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's Loan included in such
Borrowing.
SECTION 2.05. Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in
the applicable Borrowing Request and, in the case of a Eurodollar Borrowing,
shall have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different
Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing,
may elect Interest Periods therefor, all as provided in this Section. The
Borrower may elect different options with respect to different portions of the
affected Borrowing, in which
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case each such portion shall be allocated ratably among the Lenders holding the
Loans comprising such Borrowing, and the Loans comprising each such portion
shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the Borrower
were requesting a Borrowing of the Type resulting from such election to be made
on the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery
or telecopy to the Administrative Agent of a written Interest Election Request
in a form approved by the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to each
resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to
such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing,
the Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar
Borrowing but does not specify an Interest Period, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request,
the Administrative Agent shall advise each affected
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Lender of the details thereof and of such Lender's portion of each resulting
Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event
of Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing may be converted to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.06. Termination and Reduction of Commitments.
(a) Unless previously terminated, the Facility A Commitments
shall terminate on the Facility A Commitment Termination Date. In addition,
the aggregate amount of the Facility A Commitments shall be automatically
reduced at the opening of business on each Facility A Commitment Reduction Date
by the percentage of the Original Aggregate Facility A Commitment set forth
below opposite such Facility A Commitment Reduction Date:
Facility A Commitment Percentage Reduction
Reduction Date Falling of Original Aggregate
On Or Nearest To Facility A Commitment
---------------------- ---------------------
September 30, 1999 1.00%
December 31, 1999 1.00%
March 31, 2000 2.00%
June 30, 2000 2.00%
September 30, 2000 2.00%
December 31, 2000 2.00%
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March 31, 2001 3.75%
June 30, 2001 3.75%
September 30, 2001 3.75%
December 31, 2001 3.75%
March 31, 2002 3.75%
June 30, 2002 3.75%
September 30, 2002 3.75%
December 31, 2002 3.75%
March 31, 2003 7.50%
June 30, 2003 7.50%
September 30, 2003 7.50%
December 31, 2003 7.50%
March 31, 2004 7.50%
June 30, 2004 7.50%
September 30, 2004 7.50%
December 31, 2004 7.50%
(b) Unless previously terminated, the Facility B Commitments
shall terminate on the Facility B Commitment Termination Date. In addition,
the aggregate amount of the Facility B Commitments shall be automatically
reduced at the opening of business on each Facility B Commitment Reduction Date
by the percentage of the Original Aggregate Facility B Commitment set forth
below opposite such Facility B Commitment Reduction Date:
Facility B Commitment Percentage Reduction of
Reduction Date Falling Original Aggregate
On Or Nearest To Facility B Commitment
---------------------- ---------------------
June 30, 2000 1.66%
September 30, 2000 1.67%
December 31, 2000 1.67%
March 31, 2001 2.50%
June 30, 2001 2.50%
September 30, 2001 2.50%
December 31, 2001 2.50%
March 31, 2002 5.00%
June 30, 2002 5.00%
September 30, 2002 5.00%
December 31, 2002 5.00%
March 31, 2003 6.25%
June 30, 2003 6.25%
September 30, 2003 6.25%
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December 31, 2003 6.25%
March 31, 2004 7.50%
June 30, 2004 7.50%
September 30, 2004 7.50%
December 31, 2004 7.50%
March 31, 2005 5.00%
June 30, 2005 5.00%
(c) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments of
either Class shall be in an amount that is an integral multiple of $250,000 and
not less than $500,000 and (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans
in accordance with Section 2.08, the aggregate outstanding principal amount of
the Facility A Loans would exceed the aggregate amount of the Facility A
Commitments or the aggregate outstanding principal amount of the Facility B
Loans would exceed the aggregate amount of the Facility B Commitments.
(d) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (c) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments of either Class shall be
made among the Lenders holding Commitments of such Class ratably in accordance
with their respective Commitments of such Class.
(e) Each reduction in the aggregate amount of the Commitments
pursuant to Section 2.08(b) or 2.06(c) on any date shall result in an automatic
and simultaneous reduction (but not below zero) in the amounts for the Facility
A Commitment Reduction Dates or Facility B Commitment Reduction Dates, as the
case may be, after such date in an aggregate amount equal to the aggregate
amount of such reduction of the Commitments, such reduction to be applied pro
rata to the amounts in the column for the dates following such reduction.
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SECTION 2.07. Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of (i) the Facility A Loans held by such Lender on the Facility A
Commitment Termination Date and (ii) the Facility B Loans held by such Lender
on the Facility B Commitment Termination Date.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by
a promissory note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns)
and in a form approved by the Administrative Agent. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and
its registered assigns).
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SECTION 2.08. Prepayment of Loans.
(a) Optional Prepayments. The Borrower shall have the right at
any time and from time to time to prepay any Borrowing in whole or in part,
subject to prior notice as set forth below in this paragraph (a). The Borrower
shall notify the Administrative Agent by telephone (confirmed by telecopy) of
any prepayment hereunder (i) in the case of prepayment of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, three Business Days
before the date of repayment, or (ii) in the case of prepayment of an ABR
Borrowing, not later than 11:00 a.m., New York City time, one Business Day
before the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is
given in connection with a conditional notice of termination of the Commitments
as contemplated by Section 2.06, then such notice of prepayment may be revoked
if such notice of termination is revoked in accordance with Section 2.06.
Promptly following receipt of any such notice relating to a Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a Borrowing of the same Type as provided
in Section 2.02. Each prepayment of a Borrowing shall be applied ratably to
the Loans included in the prepaid Borrowing. Prepayments shall be accompanied
by accrued interest to the extent required by Section 2.10.
(b) Mandatory Prepayments. The Borrower shall make prepayments
of the Loans and reduce the Commitments hereunder as follows:
(i) Casualty Events. Upon the date 90 days following the
receipt by the Borrower or any of its subsidiaries of the proceeds of
insurance, condemnation award or other compensation in respect of any
Casualty Event affecting any property of the Borrower or any of its
subsidiaries (or upon such earlier date as the Borrower or such
subsidiary, as the case may be, shall have determined not to repair or
replace the property affected by such Casualty Event), the Borrower
shall prepay the Loans in an aggregate amount, if any, equal to 100% of
the Net Available Proceeds of such Casualty Event not theretofore
applied to the repair or replacement of such property or to the purchase
of other property used or in the business of the Borrower and its
subsidiaries, such prepayment to be effected in each case in the manner
and to the extent specified in paragraph (v) below; provided that,
notwithstanding the foregoing, the Borrower shall not be
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required to make any prepayment under this paragraph until such time as
the aggregate amount of the required prepayments pursuant to this
paragraph, after deducting any such amounts previously applied to
prepayments pursuant to this paragraph, shall be greater than or equal
to $250,000.
(ii) Sale of Assets. Without limiting the obligation of the
Borrower to obtain the consent of the Required Lenders pursuant to
Section 7.05 to any Disposition not otherwise permitted hereunder, the
Borrower shall, on or prior to the occurrence of any Disposition (other
than an Excluded Disposition) the Net Available Proceeds of which exceed
$500,000 (herein, the "Current Disposition"), deliver to the
Administrative Agent (which shall promptly forward a copy thereof to the
Lenders) a statement, certified by a Senior Officer, in form and detail
reasonably satisfactory to the Administrative Agent, of the estimated
amount of the Net Available Proceeds of the Current Disposition that
will (on the date of the Current Disposition) be received in cash, in
which event the Borrower will prepay the Loans (in the manner specified
in paragraph (v) below) as follows:
(x) upon the date of the Current Disposition, in an
aggregate amount equal to 100% of the Net Available Proceeds
thereof to the extent received in cash on the date of the Current
Disposition; and
(y) thereafter, from time to time as the Borrower or any
of its Subsidiaries shall receive Net Available Proceeds during
such quarterly fiscal period in cash under deferred payment or
escrow arrangements or Investments entered into or received in
connection with any Disposition, in an amount equal to (x) 100%
of the aggregate amount of such Net Available Proceeds minus (y)
any transaction expenses associated with Dispositions and not
previously deducted in the determination of Net Available
Proceeds plus (or minus, as the case may be) (z) any other
adjustment received or paid by the Borrower or such subsidiary
pursuant to the respective agreements giving rise to Dispositions
and not previously taken into account in the determination of the
Net Available Proceeds of Dispositions,
provided that, notwithstanding the foregoing, the Borrower shall not be
required to make any prepayment under this paragraph until such time as
the aggregate amount of the required prepayments pursuant to the
foregoing clauses (x) and (y) (with respect to the then Current
Disposition and all prior Dispositions as to which a prepayment has not
yet
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been made under this paragraph), after deducting any such amounts
previously applied to prepayments pursuant to this paragraph, shall be
greater than or equal to $500,000; provided further, that if the
Leverage Ratio on the date of such Disposition (calculated after giving
effect to such Disposition) is less than 5.5 to 1.0, the Borrower shall
not be required to make any prepayment under this paragraph; provided
further, that no prepayment is required under this paragraph to the
extent the proceeds of any Disposition are used to acquire other
property used in the business of the Borrower or any of its Subsidiaries
within a twelve month period after which such Disposition was made,
provided that a prepayment shall be required in accordance with this
paragraph on the date upon which the Borrower shall have decided not to
use the proceeds of such Disposition to acquire such property.
(iii) Equity Issuance. Upon any Equity Issuance (other than
the Equity Issuance of 4,550,000 shares of common stock of the Borrower
on February 10, 1997, and any over-allotment options exercised in
connection therewith) (x) if, on the date of such Equity Issuance, the
Leverage Ratio is greater than 6.5 to 1.0, the Commitments shall be
subject to automatic reduction in an aggregate amount equal to 100% of
the Net Available Proceeds of such Equity Issuance, (y) if, on the date
of such Equity Issuance, the Leverage Ratio is greater than 5.5 to 1.0
but less than or equal to 6.5 to 1.0, Commitments shall be subject to
automatic reduction in an aggregate amount equal to 50% of the Net
Available Proceeds of such Equity Issuance, and (z) if, on the date of
such Equity Issuance, the Leverage Ratio is less than or equal to 5.5 to
1.0, the Commitments shall not be reduced by reason of this paragraph,
such reduction in the cases of clauses (x) and (y) above to be effected
in the manner and to the extent specified in paragraph (v) below.
(iv) Excess Cash Flow. Not later than the date 90 days
after the end of each fiscal year of the Borrower (beginning with fiscal
year ending in 1999), the Commitments shall be subject to automatic
reduction, in an aggregate amount equal to 50% of Excess Cash Flow for
such fiscal year, such reduction to be effected in each case in the
manner and to the extent specified in paragraph (v) below; provided
that, if the Leverage Ratio on the last day of such fiscal year is less
than 5.5 to 1.0, the Borrower shall not be required to make any such
reduction under this paragraph.
(v) Application. Upon each required prepayment of Loans
pursuant to clauses (i) and (ii) of this
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Section 2.08(b), the amount of the required prepayment shall be applied
pro rata to the principal of the Facility A Loans and the Facility B
Loans (with no corresponding reduction of the Facility A Commitments or
Facility B Commitments). Upon each required reduction of Commitments
pursuant to clauses (iii) and (iv) of this Section 2.08(b), the amount
of the required prepayment shall be applied pro rata to the reduction of
the Facility A Commitments and the Facility B Commitments. After giving
effect to such reduction, (i) if the aggregate principal amount of
Facility A Loans together with the aggregate amount of all LC Exposure
exceeds the amount of the Facility A Commitments, the Borrower shall
first immediately prepay the Facility A Loans in an amount equal to such
excess, and second, to the extent the aggregate amount of all LC
Exposure exceeds the amount of the Facility A Commitments, provide cover
for such LC Exposure as specified in paragraph (vi) below, and (ii) if
the aggregate principal amount of Facility B Loans exceeds the amount of
the Facility B Commitments, the Borrower shall immediately prepay the
Facility B Loans in an amount equal to such excess.
(vi) Cover for LC Exposure. In the event the Borrower
shall be required pursuant to this Section 2.08 to provide cover for LC
Exposure, the Borrower shall effect the same by paying to the
Administrative Agent immediately available funds in an amount equal to
the required amount, which funds shall be retained by the Administrative
Agent in the Collateral Account (as defined in the Pledge Agreement) as
provided therein as collateral security in the first instance for LC
Exposure, until such time as the Letters of Credit shall have been
terminated and all of the LC Exposure paid in full.
(c) Loans Exceeding Commitments. In addition to the foregoing
provisions of this Section 2.08, (i) if the aggregate principal amount of
Facility A Loans together with the aggregate amount of all LC Exposure exceeds
the amount of the Facility A Commitments, the Borrower shall first immediately
prepay the Facility A Loans in an amount equal to such excess, and second, to
the extent the aggregate amount of all LC Exposure exceeds the amount of the
Facility A Commitments, provide cover for such LC Exposure as specified in
paragraph (vi) above, and (ii) if the aggregate principal amount of Facility B
Loans exceeds the amount of the Facility B Commitments, the Borrower shall
immediately prepay the Facility B Loans in an amount equal to such excess.
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SECTION 2.09. Fees.
(a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a commitment fee, which shall accrue at the
Applicable Rate on the daily unused amount of each Commitment of such Lender
during the period from and including the Effective Date (with respect to the
Facility A Commitments) or the Facility B Activation Date (with respect to the
Facility B Commitments) to but excluding the date on which such Commitment
terminates. Accrued commitment fees in respect of each Commitment shall be
payable in arrears on the last day of March, June, September and December of
each year and on the date on which such Commitment terminates, commencing on
the first such date to occur after the date hereof. All commitment fees shall
be computed on the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day).
(b) The Borrower agrees to pay (i) to the Administrative Agent
for the account of each Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at a rate per annum
equal to the Applicable Rate applicable to interest on Eurodollar Loans on the
average daily amount of such Lender's LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during the period from
and including the Effective Date to but excluding the later of the date on
which such Lender's Facility A Commitment terminates and the date on which such
Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank a fronting
fee, which shall accrue at the rate or rates per annum separately agreed upon
between the Borrower and the Issuing Bank on the average daily amount of the LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date of termination of the Facility A Commitments
and the date on which there ceases to be any LC Exposure, as well as the
Issuing Bank's standard fees with respect to the issuance, amendment, renewal
or extension of any Letter of Credit or processing of drawings thereunder.
Participation fees and fronting fees accrued through and including the last day
of March, June, September and December of each year shall be payable on the
third Business Day following such last day, commencing on the first such date
to occur after the Effective Date; provided that all such fees shall be payable
on the date on which the Facility A Commitments terminate and any such fees
accruing after the date on which the Facility A Commitments terminate shall be
payable on demand. Any other fees payable to the Issuing Bank pursuant to this
paragraph shall be payable within 10 days after demand. All participation fees
and fronting fees shall be computed on the basis of a year of 360 days and
shall be payable
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for the actual number of days elapsed (including the first day but excluding
the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for
its own account, fees payable in the amounts and at the times separately agreed
upon between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees, to the Lenders. Fees paid shall not be refundable under any
circumstances.
SECTION 2.10. Interest.
(a) The Loans comprising each ABR Borrowing shall bear interest
at a rate per annum equal to the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at a rate per annum equal to the Adjusted LIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration
or otherwise, all Loans and any overdue amounts shall bear interest, after as
well as before judgment, at a rate per annum equal to 2% plus the rate
applicable to ABR Loans as provided above.
(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan; provided that (i) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment
of an ABR Loan prior to the end of the Facility A Availability Period or the
Facility B Availability Period), accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment or prepayment,
(iii) in the event of any conversion of any Eurodollar Loan prior to the end of
the current Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion and (iv) all accrued interest
shall be payable upon termination of the Commitments.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by
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reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days
(or 366 days in a leap year), and in each case shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.11. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO
Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Facility
A Lenders (with respect to Facility A Loans) or Required Facility B
Lenders (with respect to Facility B Loans) that the Adjusted LIBO Rate
or the LIBO Rate, as applicable, for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (or Lender) of
making or maintaining their respective Loans (or its Loan) included in
such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and
each Lender by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and each Lender that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective,
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.12. Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing
Bank; or
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(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lenders of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender, or the Issuing
Bank, as the case may be, for such additional costs incurred or reduction
suffered.
(b) If any Lender or the Issuing Bank determines that any Change
in Law regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender's or the Issuing Bank's capital or on the
capital of such Lender's or Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by the
Issuing Bank, to a level below that which such Lender or Issuing Bank or such
Lender's or Issuing Bank's holding company could have achieved but for such
Change in Law (taking into consideration such Lender's or Issuing Bank's
policies and the policies of such Lender's or Issuing Bank's holding company
with respect to capital adequacy), then from time to time the Borrower will pay
to such Lender or the Issuing Bank such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth
the amount or amounts necessary to compensate such Lender or the Issuing Bank
or its holding company, as the case may be, as specified in paragraph (a) or
(b) of this Section shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender or the Issuing Bank,
as the case may be, the amount shown as due on any such certificate within 10
days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Bank to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's or the Issuing Bank's right to demand such
compensation; provided that the Borrower shall not be required to compensate a
Lender or the
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Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than six months prior to the date that such Lender or the Issuing
Bank, as the case may be, notifies the Borrower of the Change in Law giving
rise to such increased costs or reductions and of such Lender's, or the Issuing
Bank's intention to claim compensation therefor; provided further that, if the
Change in Law giving rise to such increased costs or reductions is retroactive,
then the six-month period referred to above shall be extended to include the
period of retroactive effect thereof.
SECTION 2.13. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of
an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurodollar Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice is permitted to be
revocable under Section 2.08(a) and is revoked in accordance herewith), or (d)
the assignment of any Eurodollar Loan other than on the last day of the
Interest Period applicable thereto as a result of a request by the Borrower
pursuant to Section 2.16, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, the loss to any Lender attributable
to any such event shall be deemed to include an amount determined by such
Lender to be equal to the excess, if any, of (i) the amount of interest that
such Lender would pay for a deposit equal to the principal amount of such Loan
for the period from the date of such payment, conversion, failure or assignment
to the last day of the then current Interest Period for such Loan (or, in the
case of a failure to borrow, convert or continue, the duration of the Interest
Period that would have resulted from such borrowing, conversion or
continuation) if the interest rate payable on such deposit were equal to the
Adjusted LIBO Rate for such Interest Period, over (ii) the amount of interest
that such Lender would earn on such principal amount for such period if such
Lender were to invest such principal amount for such period at the interest
rate that would be bid by such Lender (or an affiliate of such Lender) for
dollar deposits from other banks in the eurodollar market at the commencement
of such period. A certificate of any Lender setting forth any amount or
amounts that such Lender is entitled to receive pursuant to this Section shall
be delivered to the Borrower and shall be conclusive absent manifest error.
The Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.
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SECTION 2.14. Taxes.
(a) Any and all payments by or an account of any obligation of
the Borrower hereunder shall be made free and clear of and without deduction
for any Indemnified Taxes or Other Taxes; provided that if the Borrower shall
be required to deduct any Indemnified Taxes or Other Taxes from such payments,
then (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section) the Administrative Agent, each Lender, or the
Issuing Bank (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall pay the full amount deducted to
the relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank within 10 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) paid by the Administrative Agent, such Lender or the
Issuing Bank, as the case may be, and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender, the Issuing Bank,
or the Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Bank shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments
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under this Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate.
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.
(a) The Borrower shall make each payment required to be made by
it hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or under Section 2.12, 2.13 or 2.14, or otherwise) prior to
12:00 noon, New York City time, on the date when due, in immediately available
funds, without set-off or counterclaim. Any amounts received after such time
on any date may, in the discretion of the Administrative Agent, be deemed to
have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the
Administrative Agent at its offices at 270 Park Avenue, New York, New York,
except payments to be made directly to the Issuing Bank as expressly provided
herein and except that payments pursuant to Sections 2.12, 2.13, 2.14 and 9.03
shall be made directly to the Persons entitled thereto. The Administrative
Agent shall distribute any such payments received by it for the account of any
other Person to the appropriate recipient promptly following receipt thereof.
If any payment hereunder shall be due on a day that is not a Business Day, the
date for payment shall be extended to the next succeeding Business Day, and, in
the case of any payment accruing interest, interest thereon shall be payable
for the period of such extension. All payments hereunder shall be made in
dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, to pay interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, to pay principal,
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed
LC Disbursements then due to such parties.
(c) Except to the extent otherwise provided herein: (i) each
borrowing of Loans of a particular Class from the Lenders under Section 2.01
shall be made from the relevant Lenders, each payment of facility fee under
Section 2.09 in respect of Commitments of a particular Class shall be made for
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account of the relevant Lenders, and each termination or reduction of the
amount of the Commitments of a particular Class under Section 2.03 shall be
applied to the respective Commitments of such Class of the relevant Lenders,
pro rata according to the amounts of their respective Commitments of such
Class; (ii) Eurodollar Loans of any Class having the same Interest Period shall
be allocated pro rata among the relevant Lenders according to the amounts of
their Commitments of such Class (in the case of the making of Loans) or their
respective Loans of such Class (in the case of conversions and continuations of
Loans); (iii) each payment or prepayment by the Borrower of principal of Loans
of a particular Class shall be made for account of the relevant Lenders pro
rata in accordance with the respective unpaid principal amounts of the Loans of
such Class held by them; and (iv) each payment by the Borrower of interest on
Loans of a particular Class shall be made for account of the relevant Lenders
pro rata in accordance with the amounts of interest on such Loans then due and
payable to the respective Lenders.
(d) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans or participations in LC Disbursements resulting in
such Lender receiving payment of a greater proportion of the aggregate amount
of its Loans and accrued interest thereon than the proportion received by any
other Lender in respect of Loans and participations in LC Disbursements of the
same Class, then the Lender receiving such greater proportion shall purchase
(for cash at face value) participations in the Loans or sub-participations in
LC Disbursements of such Class of other Lenders to the extent necessary so that
the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans and participations in LC Disbursements of such Class;
provided that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent of such
recovery, without interest, and (ii) the provisions of this paragraph shall not
be construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by
a Lender as consideration for the assignment of or sale of a participation in
any of its Loans or participations in LC Disbursements to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing
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arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to
the Lenders or the Issuing Bank, as the case may be, the amount due. In such
event, if the Borrower has not in fact made such payment, then each of the
Lenders or the Issuing Bank, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with such interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date
of payment to the Administrative Agent, at the Federal Funds Effective Rate.
(f) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.04(b) or 2.15(d), then the Administrative
Agent may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender's obligations under such Sections
until all such unsatisfied obligations are fully paid.
SECTION 2.16. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.12, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.14,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.12 or 2.14, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.
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(b) If any Lender requests compensation under Section 2.12, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.14,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 10.04), all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that (i) the
Borrower shall have received the prior written consent of the Administrative
Agent (and, if a Facility A Commitment is being assigned, the Issuing Bank),
which consent shall not unreasonably be withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans
and participations in LC Disbursements, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder, from the assignee (to the extent
of such outstanding principal and accrued interest and fees) or the Borrower
(in the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.12 or payments required
to be made pursuant to Section 2.14, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
SECTION 2.17. Letters of Credit.
(a) General. Subject to the terms and conditions set forth
herein, the Borrower may request the issuance of Letters of Credit for its own
account, in a form reasonably acceptable to the Administrative Agent and the
Issuing Bank, at any time and from time to time during the Facility A
Availability Period. In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any form of letter
of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the
Issuing
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Bank and the Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, the date of issuance, amendment, renewal or extension, the
date on which such Letter of Credit is to expire (which shall comply with
paragraph (c) of this Section), the amount of such Letter of Credit, the name
and address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by the Issuing Bank, the Borrower also shall submit a letter of
credit application on the Issuing Bank's standard form in connection with any
request for a Letter of Credit. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension
of each Letter of Credit the Borrower shall be deemed to represent and warrant
that), after giving effect to such issuance, amendment, renewal or extension
(i) the LC Exposure shall not exceed $30,000,000 and (ii) the sum of the
aggregate principal amount of Facility A Loans, unused Facility A Commitments
and total LC Exposure shall not exceed the total Facility A Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year after
the date of the issuance of such Letter of Credit and (ii) the date that is
thirty Business Days prior to the Facility A Commitment Termination Date.
(d) Participations. By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of the Issuing Bank or the Lenders, the Issuing
Bank hereby grants to each Lender, and each Lender hereby acquires from the
Issuing Bank, a participation in such Letter of Credit equal to such Lender's
Applicable Percentage of the aggregate amount available to be drawn under such
Letter of Credit. In consideration and in furtherance of the foregoing, each
Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, such Lender's
Applicable Percentage of each LC Disbursement made by the Issuing Bank and not
reimbursed by the Borrower on the date due as provided in paragraph (e) of this
Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.
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(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent an amount equal to
such LC Disbursement not later than 12:00 noon, New York City time, on the date
that such LC Disbursement is made, if the Borrower shall have received notice
of such LC Disbursement prior to 10:00 a.m., New York City time, on such date,
or, if such notice has not been received by the Borrower prior to such time on
such date, then not later than 12:00 noon, New York City time, on the Business
Day immediately following the day that the Borrower receives such notice;
provided that, if such LC Disbursement is not less than $3,000,000, the
Borrower may, subject to the conditions to borrowing set forth herein, request
in accordance with Section 2.03 or 2.05 that such payment be financed with a
Facility A Borrowing in an equivalent amount and, to the extent so financed,
the Borrower's obligation to make such payment shall be discharged and replaced
by the Facility A Borrowing. If the Borrower fails to make such payment when
due, the Administrative Agent shall notify each Lender of the applicable LC
Disbursement, the payment then due from the Borrower in respect thereof and
such Lender's Applicable Percentage thereof. Promptly following receipt of
such notice, each Lender shall pay to the Administrative Agent its Applicable
Percentage of the payment then due from the Borrower, in the same manner as
provided in Section 2.04 with respect to Loans made by such Lender (and Section
2.04 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
and the Administrative Agent shall promptly pay to the Issuing Bank the amounts
so received by it from the Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the
Issuing Bank or, to the extent that Lenders have made payments pursuant to this
paragraph to reimburse the Issuing Bank, then to such Lenders and the Issuing
Bank as their interests may appear. Any payment made by a Lender pursuant to
this paragraph to reimburse the Issuing Bank for any LC Disbursement (other
than the funding of Facility A Loans as contemplated above) shall not
constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section shall
be absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of:
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(i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of any Letter of Credit or this
Agreement;
(iii) the existence of any claim, setoff, defense or other
right that the Borrower, any other party guaranteeing, or otherwise
obligated with, the Borrower, any Subsidiary or other Affiliate thereof
or any other Person may at any time have against the beneficiary under
any Letter of Credit, the Issuing Bank, the Administrative Agent or any
Lender or any other Person, whether in connection with this Agreement or
any other related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect;
(v) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind
of the Issuing Bank, the Lenders, the Administrative Agent or any other
Person or any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of the
Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of
the Issuing Bank; provided that the foregoing shall not be construed to excuse
the Issuing Bank from liability to the Borrower to the extent of any direct
damages (as opposed to consequential damages, claims in respect of which are
hereby waived by the Borrower to the extent permitted by applicable law)
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suffered by the Borrower that are caused by the Issuing Bank's failure to
exercise the standard of care agreed hereunder to be applicable when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that
such standard of care shall be as follows, and that the Issuing Bank shall be
deemed to have exercised such standard of care in the absence of gross
negligence or wilful misconduct on its part (as determined by a court of
competent jurisdiction):
(i) the Issuing Bank may accept documents that appear on
their face to be in substantial compliance with the terms of a Letter of
Credit without responsibility for further investigation, regardless of
any notice or information to the contrary, and may make payment upon
presentation of documents that appear on their face to be in substantial
compliance with the terms of such Letter of Credit; and
(ii) the Issuing Bank shall have the right, in its sole
discretion, to decline to accept such documents and to make such payment
if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Loans; provided
that, if the Borrower fails to reimburse such LC Disbursement when due pursuant
to paragraph (e) of this Section, then Section 2.10(c) shall apply. Interest
accrued pursuant to this paragraph shall be for the account of the Issuing
Bank, except that interest accrued on and after the date of payment by any
Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank
shall be for the account of such Lender to the extent of such payment.
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(i) Replacement of the Issuing Bank. The Issuing Bank may be
replaced at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank.
The Administrative Agent shall notify the Lenders of any such replacement of
the Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.09(b). From and after the effective date of
any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to the
term "Issuing Bank" shall be deemed to refer to such successor or to any
previous Issuing Bank, or to such successor and all previous Issuing Banks, as
the context shall require. After the replacement of an Issuing Bank hereunder,
the replaced Issuing Bank shall remain a party hereto and shall continue to
have all the rights and obligations of an Issuing Bank under this Agreement
with respect to Letters of Credit issued by it prior to such replacement, but
shall not be required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur
and be continuing, on the Business Day that the Borrower receives notice from
the Administrative Agent or the Required Lenders (or, if the maturity of the
Loans has been accelerated, Lenders with LC Exposure representing greater than
50% of the total LC Exposure) demanding the deposit of cash collateral pursuant
to this paragraph, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Lenders, an amount in cash equal to the LC Exposure as of such
date plus any accrued and unpaid interest thereon; provided that the obligation
to deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of Default with respect to
the Borrower described in clause (f) or (g) of Article VIII. Such deposit
shall be held by the Administrative Agent as collateral for the payment and
performance of the obligations of the Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest
earned on the investment of such deposits, which investments shall be made at
the option and sole discretion of the Administrative Agent and at the
Borrower's risk and expense, such deposits shall not bear interest. Interest
or profits, if any, on such investments shall accumulate in such account.
Moneys in such account shall be applied by the Administrative Agent to
reimburse the Issuing Bank for LC Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held for the
satisfaction of
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the reimbursement obligations of the Borrower for the LC Exposure at such time
or, if the maturity of the Loans has been accelerated (but subject to the
consent of Lenders with LC Exposure representing greater than 50% of the total
LC Exposure), be applied to satisfy other obligations of the Borrower under
this Agreement. If the Borrower is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default, such
amount (to the extent not applied as aforesaid) shall be returned to the
Borrower within three Business Days after all Events of Default have been cured
or waived.
(k) Existing Letter of Credit. Chase has heretofore issued a
letter of credit in the mount of $150,000 for the account of the Borrower in
favor of 485 Madison Associates. Each of the parties hereto agrees that such
letter of credit shall constitute, on and after the Effective Date, a "Letter
of Credit" under and for all purposes of this Agreement.
ARTICLE III
Guarantee by Subsidiary Guarantors
SECTION 3.01. The Guarantee. The Subsidiary Guarantors hereby
jointly and severally guarantee to each Lender, the Issuing Bank and the
Administrative Agent and their respective successors and assigns the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the principal of and interest on the Loans made by the Lenders to
the Borrower and all other amounts from time to time owing to the Lenders or
the Administrative Agent by the Borrower hereunder or under any other Loan
Document, and all obligations of the Borrower to any Lender under any Hedging
Agreement, in each case strictly in accordance with the terms thereof (such
obligations being herein collectively called the "Guaranteed Obligations").
The Subsidiary Guarantors hereby further jointly and severally agree that if
the Borrower shall fail to pay in full when due (whether at stated maturity, by
acceleration or otherwise) any of the Guaranteed Obligations, the Subsidiary
Guarantors will promptly pay the same, without any demand or notice whatsoever,
and that in the case of any extension of time of payment or renewal of any of
the Guaranteed Obligations, the same will be promptly paid in full when due
(whether at extended maturity, by acceleration or otherwise) in accordance with
the terms of such extension or renewal.
SECTION 3.02. Obligations Unconditional. The obligations of the
Subsidiary Guarantors under Section 3.01 are absolute and unconditional, joint
and several, irrespective of the value, genuineness, validity, regularity or
enforceability of
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this Agreement, the other Loan Documents or any other agreement or instrument
referred to herein or therein, or any substitution, release or exchange of any
other guarantee of or security for any of the Guaranteed Obligations, and, to
the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 3.02 that the obligations of the Subsidiary Guarantors hereunder shall
be absolute and unconditional, joint and several, under any and all
circumstances. Without limiting the generality of the foregoing, it is agreed
that the occurrence of any one or more of the following shall not alter or
impair the liability of the Subsidiary Guarantors hereunder which shall remain
absolute and unconditional as described above:
(a) at any time or from time to time, without notice to the
Subsidiary Guarantors, the time for any performance of or compliance
with any of the Guaranteed Obligations shall be extended, or such
performance or compliance shall be waived;
(b) any of the acts mentioned in any of the provisions hereof or
of the other Loan Documents or any other agreement or instrument
referred to herein or therein shall be done or omitted;
(c) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right hereunder or under
the other Loan Documents or any other agreement or instrument referred
to herein or therein shall be waived or any other guarantee of any of
the Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with; or
(d) any lien or security interest granted to, or in favor of,
the Administrative Agent or any Lender or Lenders as security for any of
the Guaranteed Obligations shall fail to be perfected.
The Subsidiary Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent or any Lender exhaust any right, power or remedy or
proceed against the Borrower hereunder or under the other Loan Documents or any
other agreement or instrument referred to herein or therein, or against any
other Person under any other guarantee of, or security for, any of the
Guaranteed Obligations.
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SECTION 3.03. Reinstatement. The obligations of the Subsidiary
Guarantors under this Article III shall be automatically reinstated if and to
the extent that for any reason any payment by or on behalf of the Borrower in
respect of the Guaranteed Obligations is rescinded or must be otherwise
restored by any holder of any of the Guaranteed Obligations, whether as a
result of any proceedings in bankruptcy or reorganization or otherwise, and the
Subsidiary Guarantors jointly and severally agree that they will indemnify the
Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including fees of counsel) incurred by the Administrative Agent or
any Lender in connection with such rescission or restoration, including any
such costs and expenses incurred in defending against any claim alleging that
such payment constituted a preference, fraudulent transfer or similar payment
under any bankruptcy, insolvency or similar law.
SECTION 3.04. Subrogation. Each Subsidiary Guarantor hereby
waives all rights of subrogation or contribution, whether arising by contract
or operation of law (including any such right arising under the Federal
Bankruptcy Code of 1978, as amended) or otherwise by reason of any payment by
it pursuant to the provisions of this Article III and further agrees with the
Borrower for the benefit of each of its creditors (including each Lender and
the Administrative Agent) that any such payment by it shall constitute a
contribution of capital by such Subsidiary Guarantor to the Borrower (or an
investment in the equity capital of the Borrower by such Subsidiary Guarantor).
SECTION 3.05. Remedies. The Subsidiary Guarantors jointly and
severally agree that, as between the Subsidiary Guarantors on the one hand and
the Administrative Agent and the Lenders on the other hand, the obligations of
the Borrower hereunder may be declared to be forthwith due and payable as
provided in Article VIII (and shall be deemed to have become automatically due
and payable in the circumstances provided in Article VIII) for purposes of
Section 3.01 notwithstanding any stay, injunction or other prohibition
preventing such declaration (or such obligations from becoming automatically
due and payable) as against the Borrower and that, in the event of such
declaration (or such obligations being deemed to have become automatically due
and payable), such obligations (whether or not due and payable by the Borrower)
shall forthwith become due and payable by the Subsidiary Guarantors for
purposes of Section 3.01.
SECTION 3.06. Instrument for the Payment of Money. Each
Subsidiary Guarantor hereby acknowledges that the guarantee in this Article III
constitutes an instrument for the payment of money, and consents and agrees
that any Lender or the Administrative Agent, at its sole option, in the event
of a
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dispute by the Subsidiary Guarantors in the payment of any moneys due
hereunder, shall have the right to bring a motion-action under New York CPLR
Section 3213.
SECTION 3.07. Continuing Guarantee. The guarantee in this
Article III is a continuing guarantee, and shall apply to all Guaranteed
Obligations whenever arising.
SECTION 3.08. Rights of Contribution. The Subsidiary Guarantors
hereby agree, as between themselves, that if any Subsidiary Guarantor shall
become an Excess Funding Guarantor (as defined below) by reason of the payment
by such Subsidiary Guarantor of any Guaranteed Obligations, each other
Subsidiary Guarantor shall, on demand of such Excess Funding Guarantor (but
subject to the next sentence), pay to such Excess Funding Guarantor an amount
equal to such Subsidiary Guarantor's Pro Rata Share (as defined below and
determined, for this purpose, without reference to the properties, debts and
liabilities of such Excess Funding Guarantor) of the Excess Payment (as defined
below) in respect of such Guaranteed Obligations. The payment obligation of a
Subsidiary Guarantor to any Excess Funding Guarantor under this Section 3.08
shall be subordinate and subject in right of payment to the prior payment in
full of the obligations of such Subsidiary Guarantor under the other provisions
of this Article III and such Excess Funding Guarantor shall not exercise any
right or remedy with respect to such excess until payment and satisfaction in
full of all of such obligations.
For purposes of this Section 3.08, (a) "Excess Funding Guarantor"
means, in respect of any Guaranteed Obligations, a Subsidiary Guarantor that
has paid an amount in excess of its Pro Rata Share of such Guaranteed
Obligations, (b) "Excess Payment" means, in respect of any Guaranteed
Obligations, the amount paid by an Excess Funding Guarantor in excess of its
Pro Rata Share of such Guaranteed Obligations and (c) "Pro Rata Share" means,
for any Subsidiary Guarantor, the ratio (expressed as a percentage) of (i) the
amount by which the aggregate present fair saleable value of all properties of
such Subsidiary Guarantor (excluding any shares of Capital Stock of, or
ownership interest in, any other Subsidiary Guarantor) exceeds the amount of
all the debts and liabilities of such Subsidiary Guarantor (including
contingent, subordinated, unmatured and unliquidated liabilities, but excluding
the obligations of such Subsidiary Guarantor hereunder and any obligations of
any other Subsidiary Guarantor that have been Guaranteed by such Subsidiary
Guarantor) to (ii) the amount by which the aggregate fair saleable value of all
properties of all of the Obligors exceeds the amount of all the debts and
liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities, but excluding the obligations of the Borrower and the Subsidiary
Guarantors hereunder and under the other Loan Documents) of all of the
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Obligors, determined (x) with respect to any Subsidiary Guarantor that is a
party hereto on the Effective Date, as of the Effective Date, and (y) with
respect to any other Subsidiary Guarantor, as of the date such Subsidiary
Guarantor becomes a Subsidiary Guarantor hereunder.
SECTION 3.09. General Limitation on Guarantee Obligations. In
any action or proceeding involving any state corporate law, or any state or
Federal bankruptcy, insolvency, reorganization or other law affecting the
rights of creditors generally, if the obligations of any Subsidiary Guarantor
under Section 3.01 would otherwise, taking into account the provisions of
Section 3.08, be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of
its liability under Section 3.01, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further
action by such Subsidiary Guarantor, any Lender, the Administrative Agent or
any other Person, be automatically limited and reduced to the highest amount
that is valid and enforceable and not subordinated to the claims of other
creditors as determined in such action or proceeding.
ARTICLE IV
Representations and Warranties
The Borrower hereby represents and warrants to each Lender as
follows:
SECTION 4.01. Organization; Power; Qualification. As of the
Effective Date, (i) the respective jurisdictions of incorporation and
percentage ownership by the Borrower or another Subsidiary of the Subsidiaries
listed on Schedule 4.01(a) are true and correct and (ii) all Subsidiaries are
Subsidiary Guarantors. Except as set forth on Schedule 4.01(b), each Obligor
is a corporation or partnership duly organized, validly existing and in good
standing under the laws of its state of organization. Each Obligor has the
corporate or organizational power and authority to own its properties and to
carry on its business as now being and hereafter proposed to be conducted.
Each Obligor is duly qualified, in good standing and authorized to do business
in each jurisdiction in which the character of its properties or the nature of
its business requires such qualification or authorization.
SECTION 4.02. Authorization. The Borrower has corporate power
and has taken all necessary corporate action to authorize it to borrow
hereunder. Each Obligor has corporate power and has taken all necessary
corporate action to execute, deliver and perform the Loan Documents to which it
is party in
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accordance with the terms thereof, and to consummate the transactions
contemplated thereby. Each Loan Document has been duly executed and delivered
by the Obligor executing it. Each of the Loan Documents to which each Obligor
is party is a legal, valid and binding respective obligation of such Obligor,
as applicable, enforceable in accordance with its terms, subject, to
enforcement of remedies, to the following qualifications: (i) equitable
principles generally, and (ii) bankruptcy, insolvency, liquidation,
reorganization, reconstruction and other similar laws affecting enforcement of
creditors' rights generally (insofar as any such law relates to the bankruptcy,
insolvency or similar event of the Borrower or any Subsidiary Guarantor).
SECTION 4.03. Compliance with Other Loan Documents and
Contemplated Transactions. The execution, delivery and performance by each
Obligor of each Loan Document to which it is a party, and the consummation of
the transactions contemplated thereby, do not and will not (i) require any
consent or approval not already obtained other than as outlined on Schedule
4.03 hereto, (ii) violate any Law, (iii) conflict with, result in a breach of,
or constitute a default under the articles of incorporation or by-laws of any
Obligor, or under any order, decree, indenture, agreement or other instrument,
to which any Obligor is a party or by which such Obligor or its respective
properties may be bound other than as outlined on Schedule 4.03 hereto, or (iv)
result in or require the creation or imposition of any Lien upon or with
respect to any property now owned or hereafter acquired by any Obligor, except
Permitted Liens.
SECTION 4.04. Business. The Obligors are engaged solely in the
communications and media broadcasting business and activities related thereto
(including, without limitation, radio and television broadcasting, print,
productions, billboards, power transmission rentals and sales and real property
rentals and sales, but only to the extent that such real property rentals and
sales arise from the lease or sale of properties previously used by the
Obligors in the communications and media broadcasting business).
SECTION 4.05. Licenses, etc. All Necessary Authorizations have
been duly authorized and obtained, and are in full force and effect. Each
Obligor is and will continue to be in compliance in all material respects with
all provisions thereof. No Necessary Authorization is the subject of any
pending or, to the best of the Borrower's knowledge, threatened challenge or
revocation.
SECTION 4.06. Compliance with Law. Each Obligor is in
compliance with all Laws, the violation of which could reasonably be expected
to have a Material Adverse Effect. The Borrower and, since their respective
acquisition by the Borrower, each
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Subsidiary Guarantor have duly and timely filed all material reports,
statements and filings that are required to be filed by any of them under the
Communications Act, and are in all material respects in compliance therewith,
including without limitation the rules and regulations of the FCC relating to
the operation of radio stations. Each Obligor has obtained all appropriate
approvals and consents of, and has made all material filings with, the FCC in
connection with the Acquisition and ownership of each of their radio stations.
There is no pending action as a result of any document or instrument filed or
submitted by any Person with the FCC challenging or contesting the FCC order
approving any pending assignment of a FCC license to any Obligor.
SECTION 4.07. Title to Properties. Each Obligor has good and
indefeasible title to, or a valid leasehold interest in, all of its material
assets. None of such Obligor's assets are subject to any Liens, except
Permitted Liens. No financing statement or other Lien filing (except relating
to Permitted Liens) is on file in any state or jurisdiction that names any
Obligor as debtor or covers (or purports to cover) any assets of any Obligor.
No Obligor has signed any such financing statement or filing, or any security
agreement authorizing any Person to file any such financing statement or
filing.
SECTION 4.08. Litigation. Except as reflected on Schedule 4.08
hereto, there is no action, suit, investigation or proceeding pending against,
or, to the best of the Borrower's knowledge, threatened against any Obligor, or
in any other manner relating directly and materially adversely to any Obligor,
or any of their material properties, in any court or before any arbitrator of
any kind or before or by any governmental body the result of which could
reasonably be expected to require the payment of money by any Obligor in an
amount of $500,000 or more in any one such action, suit or proceeding or
$2,500,000 or more in the aggregate for all such actions, suits or proceedings.
SECTION 4.09. Taxes. All federal, state and other tax returns
of each Obligor required by law to be filed have been duly filed and all
federal, state and other taxes, assessments and other governmental charges or
levies upon such Obligor or any of its properties, income, profits and assets,
which are due and payable, have been paid, unless the same are being diligently
contested in good faith by appropriate proceedings, with adequate reserves
established therefor, and no Lien (other than a Permitted Lien) has attached
and no foreclosure, distraint, sale or similar proceedings have been commenced.
The charges, accruals and reserves on the books of each Obligor in respect of
their taxes are, in the judgment of the Borrower, adequate.
SECTION 4.10. Financial Statements; Material Liabilities. The
Borrower has furnished or caused to be
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furnished to the Lenders copies of its September 30, 1996, financial
statements, which are prepared in good faith and complete in all material
respects and present fairly in accordance with GAAP the financial position of
the Borrower and the Subsidiary Guarantors as at such dates and the results of
operations for the periods then ended. The Borrower and the Subsidiary
Guarantors have no material liabilities, contingent or otherwise, nor material
losses, except as disclosed in such financial statements.
SECTION 4.11. No Material Adverse Effect. Since September 30,
1996, no event or circumstances has occurred or arisen that could reasonably be
expected to have a Material Adverse Effect except as listed on Schedule 4.11
hereto.
SECTION 4.12. ERISA. None of the Borrower or its Controlled
Group maintains or contributes to any Plan other than those disclosed to the
Administrative Agent in writing. Each such Plan is in compliance in all
material respects with the applicable provisions of ERISA, the Code, and any
other applicable Federal or state law, rule or regulation. With respect to
each Plan of the Borrower and each member of its Controlled Group (other than a
Multiemployer Plan), all reports required under ERISA or any other Law to be
filed with any governmental authority, the failure of which to file could
reasonably result in liability of the Borrower or any member of its Controlled
Group in excess of $100,000, have been duly filed. All such reports are true
and correct in all material respects as of the date given. No such Plan of the
Borrower or any member of its Controlled Group has been terminated nor has any
accumulated funding deficiency (as defined in Section 412(a) of the Code) been
incurred (without regard to any waiver granted under Section 412 of the Code),
nor has any funding waiver from the Internal Revenue Service been received or
requested. None of the Borrower or any member of its Controlled Group has
failed to make any contribution or pay any amount due or owing as required by
Section 412 of the Code or Section 302 of ERISA or the terms of any such Plan
prior to the due date under Section 412 of the Code and Section 302 of ERISA.
There has been no ERISA Event or any event requiring disclosure under Section
4041(c)(3)(C), 4068(f), 4063(a) or 4043(b) of ERISA with respect to any Plan or
trust of the Borrower or any member of its Controlled Group since the effective
date of ERISA. The value of the assets of each Plan (other than a
Multiemployer Plan) of the Borrower and each member of its Controlled Group
equaled or exceeded the present value of the benefit liabilities, as defined in
Title IV of ERISA, of each such Plan as of the most recent valuation date using
Plan actuarial assumptions at such date. There are no pending or, to the best
of the Borrower's knowledge, threatened claims, lawsuits or actions (other than
routine claims for benefits in the ordinary course) asserted or instituted
against, and neither the
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Borrower nor any member of its Controlled Group has knowledge of any threatened
litigation or claims against, (i) the assets of any Plan or trust or against
any fiduciary of a Plan with respect to the operation of such Plan, or (ii) the
assets of any employee welfare benefit plan within the meaning, of Section 3(1)
or ERISA, or against any fiduciary thereof with respect to the operation of any
such plan. None of the Borrower or any member of its Controlled Group has
engaged in any prohibited transactions, within the meaning of Section 406 of
ERISA or Section 4975 of the Code, in connection with any Plan. None of the
Borrower or any member of its Controlled Group has withdrawn from any
Multiemployer Plan, nor has incurred or reasonably expects to incur (A) any
liability under Title IV of ERISA (other than premiums due under Section 4007
of ERISA to the PBGC), (B) any withdrawal liability (and no event has occurred
which with the giving of notice under Section 4219 of ERISA would result in
such liability) under Section 4201 of ERISA as a result of a complete or
partial withdrawal (within the meaning of Section 4203 or 4205 of ERISA) from a
Multiemployer Plan, or (C) any liability under Section 4062 of ERISA to the
PBGC or to a trustee appointed under Section 4042 of ERISA. None of the
Borrower, any member of its Controlled Group, or any organization to which the
Borrower or any member of its Controlled Group is a successor or parent
corporation within the meaning of ERISA Section 4069(b), has engaged in a
transaction within the meaning of ERISA Section 4069. None of the Borrower or
any member of its Controlled Group maintains or has established any welfare
benefit plan within the meaning of Section 3(l) of ERISA which provides for
continuing benefits or coverage for any participant or any beneficiary of any
participant after such participant's termination of employment except as may be
required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended ("COBRA") and the regulations thereunder, and at the expense of the
participant or the beneficiary of the participant, or retiree medical
liabilities. Each of Borrower and its Controlled Group which maintains a
welfare benefit plan within the meaning of Section 3(1) of ERISA has complied
in all material respects with any applicable notice and continuation
requirements of COBRA and the regulations thereunder.
SECTION 4.13. Compliance with Regulations G, T, U and X. The
Borrower is not engaged principally or as one of its important activities in
the business of extending credit for the purpose of purchasing or carrying any
margin stock within the meaning of Regulations G, T, U and X of the Board, and
no Letters of Credit and no part of the proceeds of the Loans will be used to
purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock. No assets of any Obligor
are margin stock, and none of the Pledged Stock is margin stock. No Obligor,
nor any agent acting on their behalf, have taken or will knowingly take any
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action which might cause this Agreement or any Loan Documents to violate any
regulation of the Board or to violate the Securities Exchange Act of 1934, in
each case as in effect now or as the same may hereafter be in effect.
SECTION 4.14. Governmental Regulation. The Obligors are not
required to obtain any Necessary Authorization that has not already been
obtained from, or effect any material filing or registration that has not
already been effected with, the FCC or any other federal, state or local
regulatory authority in connection with the execution and delivery of this
Agreement or any other Loan Document, or the performance thereof (other than
any enforcement of remedies by the Administrative Agent on behalf of the
Lenders), in accordance with their respective terms, including any borrowings
hereunder.
SECTION 4.15. Absence of Default. Each Obligor is in compliance
in all material respects with all of the provisions of such Obligor's articles
of incorporation, by-laws, or partnership agreement, as applicable, and no
event has occurred or failed to occur, which has not been remedied or waived,
the occurrence or non-occurrence of which constitutes, or which with the
passage of time or giving of notice or both would constitute, (i) an Event of
Default or (ii) a default which could be reasonably expected to have a Material
Adverse Effect by any Obligor under any indenture, agreement or other
instrument, or any judgment, decree or order to which any Obligor is a party or
by which they or any of their properties is bound which could be reasonably
expected to have a Material Adverse Effect on any Obligor.
SECTION 4.16. Investment Company Act. The Borrower is not
required to register under the provisions of the Investment Company Act of
1940, as amended. Neither the entering into or performance by the Borrower of
this Agreement violates any provision of such act or requires any consent,
approval, or authorization of, or registration with, the Securities and
Exchange Commission or any other governmental or public body or authority
pursuant to any provisions of such act.
SECTION 4.17. Environmental Matters. Except as set forth on
Schedule 4.17 hereto, no Obligor has any actual knowledge or reason to believe
that any substance deemed hazardous by any Environmental Law, has been
installed on any real property now owned or leased by the Borrower or any of
its Subsidiaries. The Borrower and its Subsidiaries are not in violation of or
subject to any existing, pending or, to the best of the Borrower's knowledge,
threatened investigation or inquiry by any governmental authority or to any
material remedial obligations under any Environmental Laws, and this
representation and warranty would continue to be true and correct following
disclosure to the applicable governmental authorities of all
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relevant facts, conditions and circumstances, if any, pertaining to any real
property of the Borrower and its Subsidiaries. The Borrower and its
Subsidiaries have not obtained and are not required to obtain any permits,
licenses or similar authorizations to construct, occupy, operate or use any
buildings, improvements, fixtures, and equipment forming a part of any real
property of the Borrower or any Subsidiary by reason of any Environmental Laws.
The Borrower and its Subsidiaries undertook, at the time of acquisition of any
real property, reasonable inquiry into the previous ownership and uses of such
real property consistent with good commercial or customary practice. The
Borrower and Subsidiaries, since each Subsidiaries' respective Acquisition,
have taken all reasonable steps to determine, and the Borrower and its
Subsidiaries have no actual knowledge or reason to believe, after reasonable
investigation, that any Hazardous Materials have been disposed of or otherwise
released on or to the real property of the Borrower or any of its Subsidiaries
in any manner or quantities which would be deemed a violation of any
Environmental Laws.
SECTION 4.18. Certain Agreements. All contracts, agreements,
leases and other instruments in respect of Capital Lease Obligations have been
duly authorized, executed and delivered by each of the Obligors, as applicable,
and (to the best of each Obligor's knowledge, as applicable,) the other parties
thereto. Except as disclosed to each Lender, there is no litigation, or, to
the best of the Borrower's knowledge, claim of breach or default, pending or
threatened with respect to any Capital Lease Obligation that could reasonably
be expected to adversely effect any such lease or contract. The Borrower has
no knowledge of any default by any seller of any of the Borrower's or its
Subsidiary Guarantors' radio stations under any obligations of such seller to
the Borrower or any Subsidiary Guarantor. The Borrower has no notice of or
belief that any party to any Capital Lease Obligation is contemplating a
breach, default or termination for any reason of such contract or lease, other
than as disclosed in writing and reasonably acceptable to the Lenders. The
Borrower has provided, or caused to be provided, to the Administrative Agent
complete and correct copies of or access to the Capital Lease Obligations, all
as amended, together with all exhibits and schedules thereto.
SECTION 4.19. Valid Issuance of Securities. All Pledged Stock
has been duly authorized and validly issued, and is fully paid and
nonassessable, to the extent applicable. The Capital Stock described on Annex
I to the Pledge Agreement constitutes all the issued and outstanding Capital
Stock of the Subsidiary Guarantors. No Person has conversion rights with
respect to, or any subscription rights, calls, commitments or claims of any
character for, or any repurchase or redemption options relating to, the Pledged
Stock, except for those listed
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on Schedule 4.19 hereto. The Pledged Stock, when issued or sold, was either
(i) registered or qualified under applicable federal or state securities laws,
or (ii) exempt therefrom.
SECTION 4.20. Certain Fees. No broker's, finder's or other fee
or commission will be payable by the Borrower (other than to the Lenders
hereunder) with respect to the making of the Commitments or the Loans
hereunder. The Borrower agrees to indemnify and hold harmless the
Administrative Agent and each Lender from and against any claims, demand,
liability, proceedings, costs or expenses asserted with respect to or arising
in connection with any such fees or commissions.
SECTION 4.21. Compliance. Attached as Schedule 4.21 hereto is a
complete list of all material FCC licenses, consents, authorizations, permits
and Necessary Authorizations of the Obligors as of the Effective Date. Such
FCC licenses, consents, permits and authorizations constitute all that are
necessary, appropriate or advisable for each of the Obligors to operate its
business and own its properties, and are in full force and effect. No event
has occurred which permits (or with the passage of time would permit) the
revocation or termination of any such license, consents, permits and
authorizations, or which could result in the imposition of any restriction
thereon of such a nature that could reasonably be expected to have a Material
Adverse Effect.
SECTION 4.22. Patents, Etc. The Obligors have obtained all
patents, trademarks, service-marks, trade names, copyrights, licenses and other
rights, free from burdensome restrictions, that are necessary for the operation
of their business as presently conducted and as proposed to be conducted. the
loss of which could reasonably be expected to have a Material Adverse Effect.
Except as set forth on Schedule 4.22 hereto, nothing has come to the attention
of any Obligor to the effect that (i) any process, method, part or other
material presently contemplated to be employed by any Obligor may infringe any
patent, trademark, service-mark, trade name, copyright, license or other right
owned by any other Person, or (ii) there is pending or overtly threatened any
claim or litigation against or affecting any Obligor contesting its right to
sell or use any such process, method, part or other material.
SECTION 4.23. Disclosure. Neither this Agreement nor any other
document, certificate or statement which has been furnished to any Lender by or
on behalf of the Borrower or any Subsidiary Guarantor in connection herewith
contained any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statement contained herein and
therein not misleading at the time it was furnished. There is no fact known to
the Borrower and not known to the public generally
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that could reasonably be expected to materially adversely affect the assets or
business of the Borrower and the Subsidiary Guarantors, on a consolidated
basis, or in the future could reasonably be expected (so far as the Borrower
can now foresee) to have a Material Adverse Effect, which has not been set
forth in this Agreement or in the documents, certificates and statements
furnished to the Lenders by or on behalf of the Borrower prior to the date
hereof in connection with the transaction contemplated hereby.
SECTION 4.24. Local Marketing Agreements. Attached as Schedule
4.24 hereto is a complete list of all Local Marketing Agreements of the
Obligors as of the Effective Date.
SECTION 4.25. Merger Agreement. The representations and
warranties made by Tichenor in the Merger Agreement are true and correct in all
material respects.
ARTICLE V
Conditions
SECTION 5.01. Effective Date. The obligations of the Lenders to
make Loans hereunder and of the Issuing Bank to issue Letters of Credit, shall
not become effective until the date on which each of the following conditions
is satisfied (or waived in accordance with Section 10.02):
(a) Counterparts of Agreement. The Administrative Agent (or
Special Counsel) shall have received from each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.
(b) Opinions of Counsel to the Obligors. The Administrative
Agent (or Special Counsel) shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of (i) Crouch & Hallett, L.L.P. counsel to the
Borrower and Subsidiary Guarantors, substantially in the form of Exhibit
B-1 and (ii) Cohn & Marks and Wiley, Rein & Fielding, special FCC
counsel to Tichenor and its Subsidiaries and the Borrower and its
Subsidiaries, respectively, substantially in the form of Exhibit B-2,
and, in each case, covering such other matters relating to the Obligors,
this Agreement, the other Loan Documents or the
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Transactions as the Lenders shall request (and each Obligor hereby
requests such counsel to deliver such opinion).
(c) Opinion of Special Counsel. The Administrative Agent shall
have received a favorable written legal opinion (addressed to the
Administrative Agent and the Lenders and dated the Effective Date) of
Special Counsel, substantially in the form of Exhibit C (and the
Administrative Agent requests Special Counsel to deliver such opinion).
(d) Corporate Matters. The Administrative Agent (or Special
Counsel) shall have received such documents and certificates as the
Administrative Agent or Special Counsel may reasonably request relating
to the organization, existence and good standing of each Obligor, the
authorization of the Transactions and any other legal matters relating
to the Obligors, this Agreement, the other Loan Documents or the
Transactions, all in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.
(e) Senior Officer Certificate. The Administrative Agent (or
Special Counsel) shall have received a certificate, dated the Effective
Date and signed by a Senior Officer of the Borrower, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of
Section 5.02.
(f) Notes. The Administrative Agent (or Special Counsel) shall
have received for each Lender that shall have requested a promissory
note, a duly completed and executed promissory note for such Lender.
(g) Pledge Agreement. The Administrative Agent (or Special
Counsel) shall have received from each Obligor (i) either a counterpart
of the Pledge Agreement signed on behalf of such party or written
evidence satisfactory to the Administrative Agent (which may include
telecopy transmission of a signed signature page of the Pledge
Agreement) and (ii) the stock certificates identified on Annex 1
thereto, accompanied by undated stock powers executed in blank. In
addition, each Obligor shall have taken such other action (including
delivering to the Administrative Agent, for filing, appropriately
completed and duly executed copies of Uniform Commercial Code financing
statements and/or registering the pledge of the ownership in the
respective Obligors for purposes of Article 8 of the Uniform Commercial
Code) as the Administrative Agent shall have requested in order to
perfect the security interests created pursuant to the Pledge Agreement
to give effect to the priority contemplated therefor.
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(h) Insurance. The Administrative Agent (or Special Counsel)
shall have received a certificate of a Senior Officer certifying that
(i) the insurance obtained by the Borrower and its Subsidiaries is in
accordance with the requirements of Section 6.07 and (ii) such insurance
is in full force and effect and that all premiums then due and payable
thereon have been paid.
(i) Tax Matters and Corporate Structure. The Administrative
Agent and the Lenders shall have received all requested information from
the Borrower with respect to (i) state and federal tax assumptions of
the Borrower and its Subsidiaries and (ii) the ownership, capital,
organization and legal structure of the Borrower and its Subsidiaries,
all of which information shall be satisfactory to them.
(j) Tichenor Merger. The Administrative Agent shall have
received evidence to its satisfaction that the Tichenor Merger shall
have been consummated in all material respects in the manner
contemplated by the Merger Agreement including copies of all closing
documents delivered in connection with the Tichenor Merger.
(k) Repayment of Existing Credit Agreements. Evidence that the
principal of and interest on, and all other amounts owing in respect of,
Indebtedness under the Existing Credit Agreements (including, without
limitation, any contingent or other amounts payable in respect of
letters of credit) that is to be repaid on the Effective Date shall have
been (or shall be simultaneously) paid in full, that any commitments to
extend credit under the agreements or instruments relating to such
Indebtedness shall have been canceled or terminated and that all
Guarantees in respect of, and all Liens securing, any such Indebtedness
shall have been released (or arrangements for such release satisfactory
to the Administrative Agent shall have been made).
(l) Fees and Expenses. The Administrative Agent shall have
received all fees and other amounts due and payable on or prior to the
Effective Date, including, to the extent invoiced, reimbursement or
payment of all legal fees and expenses and other out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder.
(m) Other Documents. The Administrative Agent shall have
received such other documents as the Administrative Agent or any Lender
or Special Counsel shall have reasonably requested.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be
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conclusive and binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans hereunder and of the Issuing Bank to issue Letters of
Credit shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 10.02) at or prior to 3:00 p.m., New
York City time, on February 28, 1997 (and, in the event such conditions are not
so satisfied or waived, the Commitments shall terminate at such time).
SECTION 5.02. Each Credit Event. The obligation of each Lender
to make a Loan on the occasion of any requested Borrowing, and of the Issuing
Bank to issue, amend, renew or extend any Letter of Credit, is subject to the
satisfaction of the following conditions:
(a) The representations and warranties of each Obligor set forth
in each Loan Document to which it is a party shall be true and correct
on and as of the date of such Borrowing or the date of issuance,
amendment, renewal, or extension of such Letter of Credit, as
applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, no Default shall have occurred and be
continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter
of Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
ARTICLE VI
Affirmative Covenants
Until the Release Date, the Borrower covenants and agrees with
the Lenders that:
SECTION 6.01. Financial Statements and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) Within 45 days after the end of each fiscal quarter,
consolidated balance sheets of the Borrower and its Subsidiaries as at
the end of such quarter and the related consolidated and consolidating
statements of income for such quarter and for the elapsed portion of the
year ended with the last day of such quarter, and consolidated
statements of
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cash flows for the elapsed portion of the year ended with the last day
of such quarter, all of which shall be certified by a Senior Officer, to
be, in his or her opinion, complete and correct in all material respects
and to present fairly, in accordance with GAAP, the financial position
and results of operations of the Borrower and its Subsidiaries as at the
end of and for such period, and for the elapsed portion of the year
ended with the last day of such period, subject only to normal year-end
adjustments.
(b) Within 90 days after the end of each fiscal year, a copy of
(i) the consolidated balance sheet of the Borrower and its Subsidiaries,
as of the end of the current and prior fiscal years and (ii)
consolidated statements of earnings, statements of changes in
shareholders' equity, and statements of cash flows as of and through the
end of such fiscal year, all of which are prepared in accordance with
GAAP, and certified by independent certified public accountants
acceptable to the Lenders, whose opinion shall be in scope and substance
in accordance with generally accepted auditing standards and shall be
unqualified.
(c) as soon as available, and in any event within 45 days (on
a market-by-market basis) after the end of each quarterly accounting
period in each fiscal year of the Borrower, (i) a statement of Operating
Cash Flow for such quarterly accounting period and for the beginning of
such fiscal year to the end of such quarterly accounting period, in each
case setting forth in comparative form the corresponding figures for the
corresponding quarterly accounting period and period in the preceding
fiscal year, and (ii) quarterly Arbitron ratings for each of the
stations of the Borrower and its Subsidiaries.
(d) As soon as available, but in any event within 90 days
following the end of each fiscal year, a copy of the annual consolidated
operating budget of the Borrower and its Subsidiaries for the succeeding
fiscal year.
(e) At the time financial statements are furnished pursuant to
Sections 6.01(a) and (b), but in no case later than 45 days after the
end of each fiscal quarter, a certificate of a Senior Officer in form
and detail satisfactory to the Administrative Agent setting forth
calculations demonstrating compliance with the covenants hereunder.
(f) Promptly upon their becoming available, a copy of (i) each
financial statement, report, notice or proxy statement sent by the
Borrower or any Subsidiary Guarantor to stockholders generally, (ii)
each regular or periodic
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report and any registration statement (other than statements on Form S-
8) or prospectus (or material written communication in respect of any
thereof) filed by the Borrower or any subsidiary with any securities
exchange, with the Securities and Exchange Commission or any successor
agency, and (iii) all press releases concerning material financial
aspects of the Borrower or any Subsidiary Guarantor.
(g) Promptly upon becoming aware that (i) the holder(s) of any
note(s) or other evidence of indebtedness or other security of the
Borrower or any Subsidiary Guarantor in excess of $1,500,000 in the
aggregate has given notice or taken any action with respect to a breach,
failure to perform, claimed default or event of default thereunder, (ii)
any party to any Capital Lease Obligations or any Local Marketing
Agreement has given notice or taken any action with respect to a breach,
failure to perform, claimed default or event of default thereunder,
(iii) any occurrence or non-occurrence of any event which constitutes or
which with the passage of time or giving of notice or both could
constitute a material breach by the Borrower or any Subsidiary Guarantor
under any material agreement or instrument which could reasonably be
expected to result in a liability in excess of $1,500,000, other than
this Agreement to which the Borrower or any Subsidiary Guarantor is a
party or by which any of their properties may be bound, or (iv) any
event, circumstance or condition which could reasonably be expected to
have a Material Adverse Effect, a written notice specifying the details
thereof (or the nature of any claimed default or event of default) and
what action is being taken or is proposed to be taken with respect
thereto; provided, however, no notice shall be required to be delivered
hereunder with respect to any event, circumstance or condition set forth
in clause (i), (ii) or (iii) immediately preceding if, in the opinion of
counsel to the Borrower or such Subsidiary Guarantor, there is no
reasonable possibility of an adverse determination with respect to such
event, circumstance or condition.
(h) Promptly upon receipt thereof, information with respect to
and copies of any notices received from the FCC or any other federal,
state or local regulatory agencies or any tribunal relating to any
order, ruling, law, information or policy that relates to a breach of or
noncompliance with the Communications Act, or could reasonably be
expected to result in the payment of money by the Borrower or any
Subsidiary Guarantor in an amount of $1,500,000 or more in the
aggregate, or otherwise have a Material Adverse Effect, or result in the
loss or suspension of any Necessary Authorization; provided that no
information shall be
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required to be delivered hereunder if, in the opinion of counsel to the
Borrower or such Subsidiary Guarantor, there is no reasonable
possibility of an adverse determination with respect to such notice.
(i) From time to time and promptly upon each request, such data,
certificates, reports, statements, opinions of counsel, documents or
further information regarding the assets, business, liabilities,
financial position, projections, results of operations or business
prospects of the Borrower and its Subsidiaries, as the Administrative
Agent or any Lender may reasonably request.
(j) Prompt notice of the following events after the Borrower has
knowledge or notice thereof:
(i) The commencement of all proceedings and
investigations by or before the FCC or any other governmental
body, and all actions and proceedings in any court or before any
arbitrator involving claims for damages, fines or penalties
(including punitive damages) in excess of $1,500,000 in the
aggregate (after deducting the amount with respect to the
Borrower or any Subsidiary Guarantor such Person is insured,
provided such claim has not been denied), against or in any other
way relating directly to the Borrower, any Subsidiary Guarantor,
or any of their properties or businesses; provided that no notice
shall be required to be delivered hereunder if, in the opinion of
counsel to the Borrower or such Subsidiary Guarantor, there is no
reasonable possibility of an adverse determination in such action
or proceeding;
(ii) Promptly upon the happening of any condition or
event which constitutes a Default, a written notice specifying
the nature and period of existence thereof and what action is
being taken or is proposed to be taken with respect thereto; and
(iii) Any material adverse change with respect to the
business, assets, liabilities, financial position, results of
operations or prospective business of the Borrower or any
Subsidiary, other than changes in the ordinary course of business
which have not had and are not likely to have a Material Adverse
Effect.
SECTION 6.02. ERISA Reporting Requirements. The Borrower shall
furnish to the Administrative Agent and each Lender:
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(a) Promptly and in any event (i) within 30 days after the
Borrower or any member of its Controlled Group knows or has reason to
know that any ERISA Event described in clause (a) of the definition of
ERISA Event or any event described in Section 4063(a) of ERISA with
respect to any Plan of the Borrower or any member of its Controlled
Group has occurred, and (ii) within 10 days after the Borrower or any
member of its Controlled Group knows or has reason to know that any
other ERISA Event with respect to any Plan of the Borrower or any member
of its Controlled Group has occurred or a request for a minimum funding
waiver under Section 412 of the Code with respect to any Plan of the
Borrower or any member of its Controlled Group, a written notice
describing such event and describing what action is being taken or is
proposed to be taken with respect thereto, together with a copy of any
notice of event that is given to the PBGC;
(b) Promptly and in any event within two Business Days after
receipt thereof by the Borrower or any member of its Controlled Group
from the PBGC, copies of each notice received by the Borrower or any
member of its Controlled Group of the PBGC's intention to terminate any
Plan or to have a trustee appointed to administer any Plan;
(c) Promptly and in any event within 30 days after the filing
thereof by the Borrower or any member of its Controlled Group with the
United States Department of Labor, the Internal Revenue Service or the
PBGC, copies of each annual and other report (including Schedule B
thereto) with respect to each Plan;
(d) Promptly and in any event within 30 days after receipt
thereof, a copy of any notice, determination letter, ruling or opinion
the Borrower or any member of its Controlled Group receives from the
PBGC, the United States Department of Labor or the Internal Revenue
Service with respect to any Plan;
(e) Promptly, and in any event within 10 Business Days after
receipt thereof, a copy of any correspondence the Borrower or any member
of its Controlled Group receives from the Plan Sponsor (as defined by
Section 4001(a)(10) of ERISA) of any Plan concerning potential
withdrawal liability pursuant to Section 4219 or 4202 of ERISA, and a
statement from a Financial Officer of the Borrower or such member of its
Controlled Group setting forth details as to the events giving rise to
such potential withdrawal liability and the action which the Borrower or
such member of its Controlled Group is taking or proposes to take with
respect thereto;
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(f) Notification within 30 days of any material increases in
the benefits of any existing Plan which is not a Multiemployer Plan, or
the establishment of any new Plans, or the commencement of contributions
to any Plan to which the Borrower or any member of its Controlled Group
was not previously contributing;
(g) Notification within three Business Days after the Borrower
or any member of its Controlled Group knows or has reason to know that
the Borrower or any such member of its Controlled Group has or intends
to file a notice of intent to terminate any Plan under a distress
termination within the meaning of Section 4041(c) of ERISA and a copy of
such notice; and
(h) Promptly after receipt of written notice of commencement
thereof, notice of all actions, suits and proceedings before any court
or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting the Borrower or any
member of its Controlled Group with respect to any Plan, except those
which, in the aggregate, if adversely determined could not have a
Material Adverse Effect.
SECTION 6.03. Preservation of Existence and Similar Matters.
The Borrower and each Subsidiary Guarantor shall:
(a) preserve and maintain, or timely obtain and thereafter
preserve and maintain, its existence, rights, franchises, licenses,
authorizations, consents, privileges and all other Necessary
Authorizations from federal, state and local governmental bodies and any
tribunal (regulatory or otherwise), the loss of which could have a
Material Adverse Effect; and
(b) qualify and remain qualified and authorized to do business
in each jurisdiction in which the character of its properties or the
nature of its business requires such qualification or authorization,
unless the failure to do so could not have a Material Adverse Effect.
SECTION 6.04. Business; Compliance with Law. The Borrower and
each Subsidiary Guarantor shall (i) engage exclusively in the media or
communication related business and activities related thereto, and (ii) comply
in all material respects with the requirements of all applicable Law, the
failure of which could reasonably be expected to have a Material Adverse
Effect.
SECTION 6.05. Maintenance of Properties. The Borrower and each
Subsidiary Guarantor shall maintain or cause to be
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maintained all its properties (whether owned or held under lease) in reasonably
good repair, working order and condition, taken as a whole, and from time to
time make or cause to be made all appropriate repairs, renewals, replacements,
additions, betterments and improvements thereto.
SECTION 6.06. Accounting Methods and Financial Records. The
Borrower and each Subsidiary Guarantor shall maintain a system of accounting
established and administered in accordance with GAAP, keep adequate records and
books of account in which complete entries will be made and all transactions
reflected in accordance with GAAP, and keep accurate and complete records of
its respective assets. Beginning their fiscal year ending in 1997, the
Borrower and each Subsidiary Guarantor shall maintain a fiscal year ending on
December 31.
SECTION 6.07. Insurance. The Borrower and each Subsidiary
Guarantor shall maintain insurance from responsible companies in such amounts
and against such risks as shall be customary and usual in the industry for
companies of similar size and capability, provided that such insurance shall
include (with respect to the Borrower and each of its Subsidiaries) casualty
insurance and insurance against claims for damages with respect to defamation,
libel, slander, privacy or other similar injury to person or reputation
(including misappropriation of personal likeness), in such amounts as are then
customary for Persons engaged in the same or similar business similarly
situated. Each insurance policy, the loss of which could, individually or in
the aggregate, reasonably be expected to have Material Adverse Effect, shall
provide for at least 30 days' prior notice to the Administrative Agent of any
proposed termination or cancellation of such policy, whether on account of
default or otherwise.
SECTION 6.08. Payment of Taxes and Claims. The Borrower and each
Subsidiary Guarantor shall pay and discharge all taxes, assessments and
governmental charges or levies imposed upon it or its income or properties
prior to the date on which penalties attach thereto, and all lawful material
claims for labor, materials and supplies which, if unpaid, might become a Lien
upon any of its properties; except that no such assessment, charge, levy or
claim need be paid which is being diligently contested in good faith by
appropriate proceedings and for which adequate reserves shall have been set
aside on the appropriate books, but only so long as no Lien (other than a
Permitted Lien) shall attach with respect thereto and no foreclosure,
distraint, sale or similar proceedings shall have been commenced. The Borrower
and each Subsidiary Guarantor shall timely file all information returns
required by federal, state or local tax authorities.
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SECTION 6.09. Visits and Inspections. The Borrower and each
Subsidiary Guarantor shall promptly permit representatives of the
Administrative Agent or any Lender from time to time to (i) visit and inspect
the properties of the Borrower and the Subsidiary Guarantors as often as the
Administrative Agent or any Lender shall deem advisable, (ii) inspect and make
extracts from and copies of the Borrower's and each Subsidiary Guarantor's
books and records, and (ii) discuss with the Borrower's and each Subsidiary
Guarantor's directors, officers, employees and auditors its business, assets,
liabilities, financial positions, results of operations and business prospects.
SECTION 6.10 Payment of Indebtedness. Subject to Section 6.08,
the Borrower and each Subsidiary Guarantor shall pay its Indebtedness when and
as the same becomes due, other than amounts (other than the Obligations) duly
and diligently disputed in good faith.
SECTION 6.11 Use of Proceeds. The Borrower shall use the
proceeds of Loans (i) to refinance all principal, interest and other fees and
expenses owing under the Existing Credit Agreements, (ii) to make Acquisitions
permitted by the provisions of this Agreement, including, without limitation,
Section 7.05(b), (iii) to repurchase equity, (iv) to make Capital Expenditures
permitted by this Agreement, (v) for fees and expenses associated with the
transactions contemplated by clauses (i) through (iv) of this Section 6.11, and
(vi) for general corporate purposes permitted by this Agreement, including,
without limitation, Section 7.17.
SECTION 6.12. Environmental Law Compliance. The use which the
Borrower or any Subsidiary intends to make of any real property owned by it
will not result in the disposal or other release of any Hazardous Materials on
or to such real property in any manner or quantities which would be deemed a
violation of any Environmental Laws. The Borrower further agrees to exercise
reasonable due diligence in the acquisition of real property in connection with
compliance with Environmental Laws. As used herein, the term "release" as used
in this Section shall have the meanings specified in CERCLA (as defined in the
definition of Environmental Laws), and the term "disposal" shall have the
meaning specified in RCRA (as defined in the definition of Environmental Laws);
provided that if CERCLA or RCRA is amended so as to broaden the meaning of any
term defined thereby, such broader meaning shall apply subsequent to the
effective date of such amendment; and provided further, to the extent that any
other law applicable to the Borrower, any Subsidiary or any of their properties
establishes a meaning for "release," or "disposal" which is broader than that
specified in either CERCLA or RCRA, such broader meaning shall apply. The
Borrower agrees
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to indemnify and hold the Administrative Agent and each Lender harmless from
and against, and to reimburse them with respect to, any and all claims,
demands, causes of action, loss, damage, liabilities, costs and expenses
(including attorneys' fees and courts costs) of any kind or character, known or
unknown, fixed or contingent, asserted against or incurred by any of them at
any time and from time to time by reason of or arising out of (a) the failure
of the Borrower or any Subsidiaries to perform any obligation hereunder
regarding asbestos or Environmental Laws, (b) any violation on or before the
Release Date of any Environmental Law in effect on or before the Release Date,
and (c) any act, omission, event or circumstance existing or occurring on or
prior to the Release Date (including without limitation the presence on such
real property or release from such real property of Hazardous Materials
disposed of or otherwise released on or prior to the Release Date), resulting
from or in connection with the ownership of the real property, regardless of
whether the act, omission, event or circumstance constituted a violation of any
Environmental Law at the time of its existence or occurrence, or whether the
act, omission, event or circumstance is caused by or relates to the negligence
of any indemnified Person; provided that, the Borrower shall not be under any
obligation to indemnify the Administrative Agent or any Lender to the extent
that any such liability arises as the result of the gross negligence or wilful
misconduct of such Person, as finally judicially determined by a court of
competent jurisdiction. The provisions of this paragraph shall survive the
Release Date and shall continue thereafter in full force and effect.
SECTION 6.13. Subsidiary Guarantors. The Borrower will take
such action, and will cause each of its Subsidiaries to take such action, from
time to time as shall be necessary to ensure that all Subsidiaries of the
Borrower are "Subsidiary Guarantors" hereunder and a "Pledgor" under the Pledge
Agreement. Without limiting the generality of the foregoing, in the event that
the Borrower or any of its Subsidiaries shall form or acquire any new entity
that shall constitute a Subsidiary hereunder, the Borrower and its Subsidiaries
will cause such new Subsidiary to:
(i) become a "Subsidiary Guarantor" hereunder, and a
"Pledgor" under the Pledge Agreement, pursuant to an Assumption
Agreement;
(ii) cause such Subsidiary to take such action (including,
without limitation, delivering such shares of stock, executing and
delivering such Uniform Commercial Code financing statements) as shall
be necessary to create and perfect valid and enforceable first priority
Liens on the collateral pledged pursuant to the Assumption Agreement and
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Pledge Agreement as collateral security for the obligations of such new
Subsidiary hereunder; and
(iii) deliver such proof of partnership or corporate action,
incumbency of officers, opinions of counsel (subject to usual and
customary exceptions and assumptions) and other documents as is
consistent with those delivered by each Obligor pursuant to Section 5.01
on the Effective Date or as the Administrative Agent shall have
requested.
ARTICLE VII
Negative Covenants
Until the Release Date, the Borrower covenants and agrees with
the Lenders that:
SECTION 7.01. Indebtedness. Neither the Borrower nor any
Subsidiary Guarantor shall create, assume, incur or otherwise become or remain
obligated in respect of, or permit to be outstanding, or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Accounts payable, accrued expenses, deferred revenue
items, pension liabilities and customer advance payments incurred in the
ordinary course of business;
(c) Guaranties to the extent permitted under Section 7.06;
(d) Capital Lease Obligations and Indebtedness incurred to
purchase tangible personal property, in an aggregate amount not to
exceed $5,000,000 outstanding at any time;
(e) Indebtedness of Subsidiaries of the Borrower to the Borrower
or to another Subsidiary of the Borrower;
(f) Indebtedness set forth on Schedule 7.01(f) hereto, and all
renewals and extensions (but not increases) thereof; and
(g) other unsecured Indebtedness (in addition to Indebtedness
otherwise permitted pursuant to this Section 7.01 and Guarantees
permitted pursuant to Section 7.06) of the Borrower or the Subsidiary
Guarantors not to exceed $15,000,000 in aggregate principal amount
outstanding at any time,
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provided that, the incurrence of Indebtedness otherwise permitted pursuant to
the foregoing clauses (c), (d), and (g) shall be permitted only if, after
giving effect to any such proposed Indebtedness, no Default shall exist or be
continuing.
SECTION 7.02. Liens. Neither the Borrower nor any Subsidiary
Guarantor shall create, assume, incur, permit or suffer to exist, directly or
indirectly, any Lien on any of its assets, whether now owned or hereafter
acquired, except Permitted Liens. No Obligor shall agree with any other Person
that it shall create, assume, incur, permit or suffer to exist or to be
created, assumed, incurred or permitted to exist, directly or indirectly, any
Lien on any of its assets.
SECTION 7.03. Investments. Neither the Borrower nor any
Subsidiary Guarantor shall make, own or maintain any Investment, except that
the Borrower may purchase or otherwise acquire and own and maintain:
(a) marketable, direct obligations of, or guaranteed by, the
United States of America and maturing within 365 days of the date of
purchase;
(b) commercial paper issued by U.S. corporations that have a
rating of A-1/P-1 or better by Moody's or S&P;
(c) certificates of deposit, banker's acceptances and time
deposits (including Euro-deposits) maturing within 180 days from the
date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any office of any
commercial bank organized under the laws of the United States of America
or any State thereof, or under the laws of any other member state of the
Organization for Economic Cooperation and Development, which has a
combined capital and surplus and undivided profits of not less than
$500,000,000;
(d) securities issued by U.S. corporations that have one of
the two highest ratings obtainable from Moody's or S&P;
(e) subject to Section 7.05, Investments in newly-formed or
existing Subsidiary Guarantors (i) that are subject to the provisions
hereof, (ii) that are or immediately become party to an Assumption
Agreement and (iii) all of whose Capital Stock is pledged to the Lenders
to secure the Obligations pursuant to an amendment to the Pledge
Agreement;
(f) accounts receivable that arise in the ordinary course of
business and are payable on standard terms;
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(g) Investments which are described on Schedule 7.03(g)
hereto;
(h) Investments in communication or media related businesses
made within nine months after the date hereof not to exceed, at any time
outstanding, an aggregate amount (determined using the purchase price or
cost of such Investments without any adjustment for depreciation or
amortization) equal to $40,000,000; provided that (i) prior to or after
giving effect to such proposed Investment, no Default shall exist or be
continuing, (ii) if the amount of such Investment (determined as
aforesaid) were borrowed by the Borrower as Indebtedness on the date of
such Investment, the Leverage Ratio (after giving effect to such
borrowing) would be less than 5.50 to 1 and (iii) such Investments shall
be pledged to the Lenders to secure the Obligations pursuant to an
amendment to the Pledge Agreement; and
(i) other Investments in communication or media related
businesses not to exceed, at any time outstanding, an aggregate amount
(determined using the purchase price or cost of such Investments without
any adjustment for depreciation or amortization) equal to $30,000,000;
provided that (i) prior to or after giving effect to any such proposed
Investment, no Default shall exist or be continuing, and (ii) such
Investments shall be pledged to the Lenders to secure the Obligations
pursuant to an amendment to the Pledge Agreement.
SECTION 7.04. Amendment and Waiver. Neither the Borrower nor any
Subsidiary Guarantor shall enter into any amendment of any material term or
provision of its articles of incorporation, by-laws, or partnership agreement,
as applicable. Notwithstanding the preceding sentence, the Borrower or a
Subsidiary Guarantor may enter into such an amendment in order to (i) change
its name or (ii) increase its authorized Capital Stock provided that, in the
case of a name change or the issuance of Capital Stock by a Subsidiary
Guarantor, such Subsidiary Guarantor shall issue new stock certificates
reflecting such name change or increase in Capital Stock, and such certificates
(together with undated stock powers executed in blank) shall be delivered to
the Administrative Agent, and each Obligor shall take any other actions
required by the Administrative Agent, in order to perfect the security interest
in such certificates pursuant to the terms of the Pledge Agreement.
In addition no Obligor shall enter into any amendment of, or
agree to or accept any waiver of any of the provisions of, any Necessary
Authorization unless (i) the Required Lenders consent to such amendment and
(ii) the Lenders are provided with
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10 days' written notice prior to the execution or effectiveness of the proposed
amendment or waiver.
SECTION 7.05. Liquidation, Disposition or Acquisition of Assets,
Merger, New Subsidiaries. Neither the Borrower nor any Subsidiary Guarantor
shall at any time:
(a) (i) liquidate or dissolve itself (or suffer any
liquidation or dissolution); provided that, any Wholly-Owned Subsidiary
may liquidate or dissolve if all of its assets and property are
distributed to a Wholly-Owned Subsidiary, or (ii) otherwise make any
Disposition, except for (x) Excluded Dispositions, or (y) Dispositions
to the extent that the Operating Cash Flow attributed to radio stations
sold or exchanged shall not exceed 25% of Operating Cash Flow in any
fiscal year or 50% of Operating Cash Flow for any period of five
consecutive fiscal years; provided that, prior to or after giving effect
to any such Disposition, no Default shall exist or be continuing.
(b) make Acquisitions; provided that, so long as there shall
exist no Default prior to or after giving effect to a proposed
Acquisition, the Borrower or any Subsidiary Guarantor may make
Acquisitions, so long as (i) the Lenders shall have received prior
written notice at least 20 Business Days prior to the date of such
Acquisition, (ii) the Administrative Agent shall have received at least
10 Business Days prior to the date of such Acquisition calculations in
form reasonably satisfactory to it demonstrating compliance with Section
7.09 both prior to and after giving effect to the proposed Acquisition,
(iii) the assets, property or business of such Acquisition shall be in
or relate to the communications or media related business, and (iv) the
Administrative Agent shall have received copies of all documents,
instruments, opinions and other information relating to the seller and
assets to be acquired as it may reasonably request; and
(c) enter into any merger or consolidation other than the
Tichenor Merger; provided that, so long as there shall exist no Default
prior to or after giving effect to a proposed transaction, (i) a
Subsidiary Guarantor may merge or consolidate with another Subsidiary
Guarantor; and (ii) any Subsidiary Guarantor may, subject to the
limitations set forth in Section 7.03(h) and in this Section 7.05(c),
merge or consolidate with another Person in connection with a permitted
Acquisition.
SECTION 7.06. Guarantees. Other than those guarantees by the
Borrower or a Subsidiary Guarantor of obligations of a Subsidiary Guarantor or
those guarantees referenced on Schedule
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7.06 hereto, neither the Borrower nor any Subsidiary Guarantor shall at any
time make or issue any Guaranty, or assume, be obligated with respect to, or
permit to be outstanding any Guaranty, of any obligation of any other Person
except Guarantees in an aggregate amount not to exceed $10,000,000 at any time
(in addition to Indebtedness permitted pursuant to Section 7.01(g)); provided
that such Guarantees shall be permitted only if prior to such proposed Guaranty
or after giving effect thereto there shall exist no Default.
SECTION 7.07. Affiliate Transactions. Except as otherwise
expressly provided in this Agreement, (a) neither the Borrower nor any
Subsidiary Guarantor shall at any time engage in any transaction with an
Affiliate, nor make an assignment or other transfer of any of its assets or
properties to any Affiliate, on terms materially less advantageous to the
Borrower or Subsidiary than would be the case if such transaction had been
effected with a non-Affiliate (other than advances to employees in the ordinary
course of business) or (b) incur or suffer to exist any Indebtedness or
Guaranty in favor of any Affiliate (other than the Borrower or another
Subsidiary Guarantor), unless such Affiliate shall subordinate the payment and
performance thereof on terms satisfactory to the Lenders in their sole
discretion, and otherwise upon terms, conditions and documentation, and in a
manner satisfactory to the Required Lenders.
SECTION 7.08. Compliance with ERISA. Neither the Borrower nor
any Subsidiary Guarantor shall, directly or indirectly, permit any member of
its Controlled Group to directly or indirectly, (a) terminate any Plan so as to
result in any material (in the opinion of the Required Lenders) liability to
the Borrower or any member of its Controlled Group, (b) permit to exist any
ERISA Event, or any other event or condition which presents the risk of a
material (in the opinion of the Required Lenders) liability of the Borrower or
any member of its Controlled Group, (c) make a complete or partial withdrawal
(within the meaning of Section 4201 of ERISA) from any Multiemployer Plan so as
to result in any material (in the opinion of the Required Lenders) liability to
the Borrower or any member of its Controlled Group, (d) enter into any new Plan
or modify any existing Plan so as to increase its obligations thereunder except
in the ordinary course of business consistent with past practice which could
result in any material (in the opinion of the Required Lenders) liability to
the Borrower or any member of its Controlled Group, or (e) permit the present
value of all benefit liabilities, as defined in Title IV of ERISA, under each
Plan of the Borrower or any member of its Controlled Group (using the actuarial
assumptions utilized by the PBGC upon termination of a plan) to materially (in
the opinion of the Required Lenders) exceed the fair market value of Plan
assets
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allocable to such benefits all determined as of the most recent valuation date
for each such Plan.
SECTION 7.09. Leverage Ratio. The Borrower will not permit the
Leverage Ratio at any time during any of the periods set forth below to exceed
the ratio set opposite such period below:
Period Ratio
------ -----
From and including the Effective Date
through December 30, 1997 6.75 to 1
From and including December 31, 1997
through September 29, 1998 6.50 to 1
From and including September 30, 1998
through March 30, 1999 6.00 to 1
From and including March 31, 1999
through December 30, 1999 5.50 to 1
From and including December 31, 1999
through December 30, 2000 5.00 to 1
From and including December 31, 2000
and all times thereafter 4.50 to 1
SECTION 7.10. Interest Coverage Ratio. The Borrower will not
permit the Interest Coverage Ratio at any time during any of the periods set
forth below to be less than the ratio set opposite such period below:
Period Ratio
------ -----
From and including the Effective
Date through December 30, 1998 1.75 to 1
From and including December 31, 1998
through December 30, 1999 2.00 to 1
From and including December 31, 1999
and all times thereafter 2.25 to 1
SECTION 7.11. Fixed Charges Coverage Ratio. The Borrower will
not permit the Fixed Charges Coverage Ratio to be less than 1.05 to 1 at any
time.
SECTION 7.12. Capital Stock of the Subsidiary Guarantors.
Neither the Borrower nor any Subsidiary Guarantor shall make or permit any
issuance, transfer, assignment,
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distribution, mortgage, pledge or gift of any shares of Pledged Stock, except
in connection with issuances permitted by Schedule 4.19 hereto and then only if
such shares are pledged and delivered to the Administrative Agent pursuant to
the Pledge Agreement.
SECTION 7.13. Sale and Leaseback. Neither the Borrower nor any
Subsidiary Guarantor shall enter into any arrangement whereby it sells or
transfers any of its assets, and thereafter rents or leases such assets.
SECTION 7.14. Sale or Discount of Receivables. Neither the
Borrower nor any Subsidiary Guarantor shall directly or indirectly sell, with
or without recourse, for discount or otherwise, any notes or accounts
receivable.
SECTION 7.15. Business of Radio License Subsidiaries.
Notwithstanding anything in this Agreement to the contrary, neither the
Borrower nor any Subsidiary Guarantor shall permit any Radio License Subsidiary
(or any other Subsidiary at any time holding any FCC licenses for any radio
station owned or operated by the Borrower or any of its Subsidiaries) to engage
in any business other than the ownership of FCC licenses and Necessary
Authorizations for the operation of their respective radio business, or incur
any Indebtedness other than pursuant to the Loan Documents or to the Borrower
or one or more of its Subsidiaries.
SECTION 7.16. Other Agreements. Except as otherwise provided in
this Agreement, neither the Borrower nor any Subsidiary Guarantor shall enter
into any agreement pursuant to which the ability of an Obligor to pay any
money, dividend or other type of advance to, or otherwise make any other
Investment in, any other Obligor shall be limited or in which such payment
would be a default or event of default.
SECTION 7.17. Restricted Payments. Neither the Borrower nor any
Subsidiary Guarantor shall directly or indirectly declare or pay any Restricted
Payment; provided that, if the Leverage Ratio is less than 5.50 to 1.0,
Restricted Payments shall be permitted in an aggregate amount not to exceed
(when added to all other Restricted Payments previously made after the date
hereof) the Restricted Payments Basket (as defined below).
The "Restricted Payments Basket" means, on the date hereof,
$5,000,000. On the last day of each fiscal year after fiscal year 1997 (the
"Base Year"), if the Incremental Increase (as defined below) in Operating Cash
Flow for such year is in excess of 10%, then the amount of the Restricted
Payments Basket shall increase by an amount equal to $5,000,000 multiplied by
the
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Incremental Increase. "Incremental Increase" shall mean, with respect to
Operating Cash Flow for any fiscal year, an amount (expressed as a percentage)
equal to (a) a fraction, the numerator of which is Operating Cash Flow for such
fiscal year (the "Measuring Year") and the denominator of which is the average
annual Operating Cash Flow for the fiscal years from the Base Year to the
fiscal year immediately preceding the Measuring Year minus (b) 100%.
Notwithstanding the foregoing, the Restricted Payments Basket shall not exceed
$15,000,000 in the aggregate at any time.
Nothing herein shall be deemed to restrict the payment of
dividends by any Subsidiary to the Borrower.
SECTION 7.18. Local Marketing Agreements. Neither the Borrower
nor any Subsidiary Guarantor shall enter into any Local Marketing Agreement
after the Effective Date; provided that, the Borrower or a Subsidiary Guarantor
may enter into a Local Marketing Agreement (i) in respect of stations for which
the FCC license is owned by a Person other than the Borrower or one of its
Subsidiaries if the Borrower or a Subsidiary Guarantor provides programming
services and procures advertising for such station pursuant to such Local
Marketing Agreement or (ii) in accordance with the provisions of Section
7.05(a).
ARTICLE VIII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) any representation or warranty made or deemed made under
any Loan Document shall prove to have been incorrect or misleading in
any material respect when made or deemed made;
(b) the Borrower shall default in the payment of (i) any
interest or any fees payable hereunder or any other costs, fees,
expenses or other amounts payable hereunder or under any Loan Document,
when due, which Default is not cured within three days from the date
such payment became due by payment of such late amount, or (ii) any
principal hereunder;
(c) the Borrower or any Subsidiary Guarantor shall default in
the performance or observance of any agreement or covenant contained in
Section 6.01(j)(ii), 6.03 or Article VII;
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(d) the Borrower or any Subsidiary Guarantor shall default in
the performance or observance of any other agreement or covenant
contained in this Agreement not specifically referred to elsewhere in
this Article VIII, and such default shall not be cured within a period
of 30 days after the earlier of written notice from the Administrative
Agent thereof or actual notice thereof;
(e) there shall occur any default or breach in the performance
or observance of any agreement or covenant or breach of any
representation or warranty contained in the Pledge Agreement;
(f) A proceeding or case shall be commenced, without the
application or consent of any of the Obligors in any court of competent
jurisdiction, seeking (i) its liquidation, reorganization, dissolution
or winding-up, or the composition or readjustment of its debts, (ii) the
appointment of a trustee, receiver, custodian, liquidator or the like of
such Obligor or of all or any substantial part of its assets, or (iii)
similar relief in respect of such Obligor under any law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any
of the foregoing shall be entered and continue unstayed and in effect,
for a period of 60 or more days; or an order for relief against such
Obligor shall be entered in an involuntary case under the Bankruptcy
Code;
(g) the Borrower or any Subsidiary shall file a petition,
answer or consent seeking relief under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other applicable
Federal or state bankruptcy law or other similar law, or the Borrower or
any Subsidiary shall consent to the institution of proceedings
thereunder or to the filing of any such petition or to the appointment
or taking of possession of a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Borrower or any
Subsidiary or of any substantial part of their respective properties, or
the Borrower or any Subsidiary shall fail generally to pay its debts as
they become due, or the Borrower or any Subsidiary shall take any action
in furtherance of any such action;
(h) a final judgment or judgments shall be entered by any
court against the Borrower or any Subsidiary for the payment of money
which exceeds $1,500,000 in the aggregate, or a warrant of attachment or
execution or similar process shall be issued or levied against property
of the Borrower or any Subsidiary which, together with all other such
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property of the Borrower and its Subsidiaries subject to other such
process, exceeds in value $1,500,000 in the aggregate, and if such
judgment or award is not insured or, within 30 days after the entry,
issue or levy thereof, such judgment, warrant or process shall not have
been paid or discharged or stayed pending appeal, or if, after the
expiration of any such stay, such judgment, warrant or process shall not
have been paid or discharged;
(i) with respect to any Plan of the Borrower or any member of
its Controlled Group: (i) the Borrower, any such member, or any other
party-in-interest or disqualified person shall engage in transactions
which in the aggregate would reasonably result in a direct or indirect
liability to the Borrower or any member of its Controlled Group in
excess of $750,000 under Section 409 or 502 of ERISA or Section 4975 of
the Code; (ii) the Borrower or any member of its Controlled Group shall
incur any accumulated funding deficiency, as defined in Section 412 of
the Code, in the aggregate in excess of $750,000, or request a funding
waiver from the Internal Revenue Service for contributions in the
aggregate in excess of $750,000; (iii) the Borrower or any member of its
Controlled Group shall incur any withdrawal liability in the aggregate
in excess of $250,000 as a result of a complete or partial withdrawal
within the meaning of Section 4203 or 4205 of ERISA; (iv) the Borrower
or any member of its Controlled Group shall fail to make a required
contribution by the due date under Section 412 of the Code or Section
302 of ERISA which would result in the imposition of a lien under
Section 412 of the Code or Section 302 of ERISA; (v) the Borrower, any
member of its Controlled Group or any Plan sponsor shall notify the PBGC
of an intent to terminate, or the PBGC shall institute proceedings to
terminate, any Plan; (vi) a Reportable Event shall occur with respect to
a Plan, and within 15 days after the reporting of such Reportable Event
to the Administrative Agent, the Administrative Agent shall have
notified the Borrower in writing that the Required Lenders have made a
determination that, on the basis of such Reportable Event, there are
reasonable grounds for the termination of such Plan by the PBGC or for
the appointment by the appropriate United States District Court of a
trustee to administer such Plan and as a result thereof an Event of
Default shall have occurred hereunder; (vii) a trustee shall be
appointed by a court of competent jurisdiction to administer any Plan or
the assets thereof; (viii) the benefits of any Plan shall be increased,
or the Borrower or any member of its Controlled Group shall begin to
maintain, or begin to contribute to, any Plan, without the prior written
consent of the Required Lenders; or (ix) any ERISA Event with respect to
a Plan shall have occurred, and 30 days thereafter (A) such ERISA
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Event, other than such event described in clause (vi) of the definition
of ERISA Event herein, (if correctable) shall not have been corrected
and (B) the then present value of such Plan's benefit liabilities, as
defined in Title IV of ERISA, shall exceed the then current value of
assets accumulated in such Plan; provided that the events listed in
subsections (v) through (ix) shall constitute Events of Default only if,
as of the date thereof or any subsequent date, the maximum amount of
liability that the Borrower or any member of its Controlled Group could
incur in the aggregate under Section 4062, 4063, 4064, 4219 or 4023 of
ERISA or any other provision of law with respect to all such Plans,
computed by the actuary of the Plan taking into account any applicable
rules and regulations of the PBGC at such time, and based on the
actuarial assumptions used by the Plan, resulting from or otherwise
associated with such event exceeds $750,000;
(j) Except for expiration in accordance with its terms, any of
the Loan Documents shall be terminated or shall cease to be in full
force and effect, for whatever reason, or the enforceability thereof
will be contested by any Obligor;
(k) the Borrower or any Subsidiary Guarantor shall default in
the payment of any Indebtedness in an aggregate amount of $1,500,000 or
more beyond any grace period provided with respect thereto, or shall
default in the performance of any agreement or instrument under which
such Indebtedness is created or evidenced beyond any applicable grace
period, if the effect of such default is to permit or cause the holder
of such Indebtedness (or a trustee on behalf of any such holder) to
cause such Indebtedness to become due prior to its date of maturity;
(l) less than 90% of the issued and outstanding Capital Stock
of any Subsidiary Guarantor shall be owned, directly or indirectly, by
the Borrower and by management of the Borrower.
(m) the Borrower or any Subsidiary shall fail to comply in any
material respect with the Communications Act, or any rule or regulation
promulgated by the FCC;
(n) any material Necessary Authorization shall be revoked; or
there shall occur a material default under any material Necessary
Authorization by the Borrower or any Subsidiary beyond any applicable
grace period; or any proceedings shall in any way be brought by any
Person to challenge the validity or enforceability of any material
Necessary Authorization and the FCC shall designate the Necessary
Authorization for a revocation hearing; or
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proceedings for the renewal of any material Necessary Authorization
shall not be commenced at least 90 days prior to the expiration thereof;
or any material Necessary Authorization shall expire due to termination,
nonrenewal or for any other reason, or shall be designated for a
revocation hearing;
(o) any lease of the Borrower or any Subsidiary Guarantor
shall terminate or cease to be effective, and termination or cessation
thereof could reasonably be expected to have a Material Adverse Effect;
provided that termination or cessation of a lease shall not constitute
an Event of Default if another reasonably comparable lease is
contemporaneously substituted therefor;
(p) Any Lien created by the Pledge Agreement shall at any time
not constitute a valid and perfected Lien on the collateral intended to
be covered thereby (to the extent filing by registration, recordation or
possession is required herein or therein) in favor of the Administrative
Agent, free and clear of all other Liens, or, except for expiration in
accordance with its terms, the Pledge Agreement shall for whatever
reason be terminated or cease to be in full force and effect;
(q) there shall exist any breach or default of any management
agreement or contract of the Borrower or any Subsidiary Guarantor, or
any such management agreement or contract shall terminate in accordance
with its terms and shall not be renewed among the parties upon
substantially similar terms, and such breach, default or termination
could reasonably be expected to have a Material Adverse Effect;
(r) Clear Channel Communications, Inc. shall own less than 25%
of the fully diluted outstanding shares of Capital Stock of the
Borrower; provided that, if such reduction results from an Equity
Issuance of the Borrower after the Effective Date, an Event of Default
under this clause (r) shall occur only if Clear Channel Communications,
Inc. shall own less than 20% of the fully diluted outstanding shares of
Capital Stock of the Borrower; or the rights of Clear Channel
Communications, Inc. under Section 5.10 of the Second Amended and
Restated Certificate of Incorporation of the Borrower as in effect on
the date hereof shall be modified in a manner that the Majority Lenders
have determined is materially adverse to the rights of Clear Channel
Communications, Inc. under said Section 5.10; or
(s) there shall have been asserted against the Borrower or any
of its Subsidiaries, or any predecessor in interest of the Borrower or
any of its Subsidiaries or
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Affiliates, of (or there shall have been asserted against the Borrower
or any of its Subsidiaries) any claims or liabilities, whether accrued,
absolute or contingent, based on or arising from the generation,
storage, transport, handling or disposal of Hazardous Materials by the
Borrower or any of its Subsidiaries, Affiliates or predecessors that,
are reasonably likely to be determined adversely to the Borrower or any
of its Subsidiaries, and the amount thereof (either individually or in
the aggregate) is reasonably likely to have a Material Adverse Effect
(insofar as such amount is payable by the Borrower or any of its
Subsidiaries but after deducting any portion thereof that is reasonably
expected to be paid by other creditworthy Persons jointly and severally
liable therefor);
then, and in every such event (other than an event with respect to the Borrower
described in clause (f) or (g) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either
or both of the following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower;
and in case of any event with respect to the Borrower described in clause (f)
or (g) of this Article, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE IX
The Administrative Agent
Each of the Lenders and the Issuing Bank hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof,
together with such actions and powers as are reasonably incidental thereto.
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The bank serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
bank and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of
the foregoing (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred
and is continuing, (b) the Administrative Agent shall not have any duty to take
any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Required
Lenders, and (c) except as expressly set forth herein, the Administrative Agent
shall not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower or any of its Subsidiaries
that is communicated to or obtained by the bank serving as Administrative Agent
or any of its Affiliates in any capacity. The Administrative Agent shall not
be liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders or in the absence of its own gross negligence
or wilful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to
the Administrative Agent by the Borrower, any Subsidiary Guarantor, or a
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement, (ii) the contents of any
certificate, report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (v) the satisfaction of any condition set
forth in Article IV or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the
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proper Person, and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent
may resign at any time by notifying the Lenders, the Issuing Bank and the
Borrower. Upon any such resignation, the Required Lenders shall have the
right, in consultation with the Borrower, to appoint a successor. If no
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent
may, on behalf of the Lenders and the Issuing Bank, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New
York, or an Affiliate of any such bank. Upon the acceptance of its appointment
as Administrative Agent hereunder by a successor, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 10.03 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 Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative
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Agent or any other Lender and based on such documents and information as it
shall from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Agreement, any related
agreement or any document furnished hereunder or thereunder.
None of the Lenders designated on the cover page of this
Agreement as a "Documentation Agent" or as a "Co-Agent" shall have any rights
or obligations arising out of such designation.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 100 Crescent Court, Suite 1777,
Dallas, Texas 75201-6991, Attention Jeffrey T. Hinson, Chief Financial
Officer (Telecopy No. 214-855-8881);
(b) if to the Administrative Agent, to The Chase Manhattan Bank,
Agent Bank Services Group, One Chase Manhattan Plaza, New York, New York
10081, Attention of Janet Belden (Telecopy No. (212) 552-5658), with a
copy to The Chase Manhattan Bank, 1 Chase Manhattan Plaza, New York, New
York 10081, Attention of Beth Bacon (Telecopy No. 212-552-4905); and
(c) if to any Lender or the Issuing Bank, to it at its address
(or telecopy number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt.
SECTION 10.02. Waivers; Amendments.
(a) No failure or delay by the Administrative Agent, the Issuing
Bank or any Lender in exercising any right or power hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any
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abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the
Issuing Bank and the Lenders hereunder are cumulative and are not exclusive of
any rights or remedies that they would otherwise have. No waiver of any
provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or the
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, the Issuing Bank or
any Lender may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrower and the Required Lenders or by the
Borrower and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender
without the written consent of such Lender, (ii) reduce the principal amount of
any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce
any fees payable hereunder, without the written consent of each Lender affected
thereby, (iii) postpone the scheduled date of payment of the principal amount
of any Loan or LC Disbursement, or any interest thereon, or any fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the
written consent of each Lender affected thereby, (iv) change Section 2.08(b),
2.15(b), (c) or (d) in a manner that would alter the prepayments or pro rata
sharing of payments required thereby, without the written consent of each
Lender, or (v) change any of the provisions of this Section or the definition
of "Required Facility A Lenders", "Required Facility B Lenders", "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent or the
Issuing Bank hereunder without the prior written consent of the Administrative
Agent or the Issuing Bank, as the case may be; provided further, that
(i) except as otherwise provided in clause (ii) below, any
modification or supplement of Article III shall require the consent of
each Subsidiary Guarantor; and
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(ii) no amendment, modification or waiver shall, unless by
an instrument signed by all of the Lenders or by the Administrative
Agent acting with the consent of all of the Lenders release any
collateral or otherwise terminate any Lien under any Loan Document
providing for collateral security, agree to additional obligations being
secured by such collateral security or release any Subsidiary Guarantor
from its liability hereunder, except that (x) no such consent shall be
required, and the Administrative Agent is hereby authorized, to release
any Lien covering property (or to release any Subsidiary Guarantor from
its liability hereunder) that is the subject of a disposition permitted
hereunder or to which the Required Lenders have consented and (y) no
such consent shall be required to provide for any additional obligations
being secured by any of such collateral security if the Lien for such
additional obligations shall be junior to the Lien in favor of the
Administrative Agent under the Loan Documents.
SECTION 10.03. Expenses; Indemnity: Damage Waiver.
(a) The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
out-of-pocket expenses incurred by the Issuing Bank in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any other
demand for payment thereunder and (iii) all out-of-pocket expenses incurred by
the Administrative Agent, the Issuing Bank or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, the
Issuing Bank or any Lender, in connection with the enforcement or protection of
its rights in connection with this Agreement, including its rights under this
Section, or in connection with the Loans made or Letter of Credit issued
hereunder, including in connection with any workout, restructuring or
negotiations in respect thereof.
(b) The Borrower shall indemnify the Administrative Agent, the
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of
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(i) the execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use
of the proceeds therefrom (including any refusal by the Issuing Bank to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of
its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent or the Issuing Bank under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay to
the Administrative Agent or the Issuing Bank, as the case may be, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent or the Issuing Bank in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or Letter of Credit or the use of the
proceeds thereof.
(e) All amounts due under this Section shall be promptly after
written demand therefor.
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SECTION 10.04. 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 permitted hereby, except that neither the Borrower nor any Subsidiary
Guarantor may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and LC Exposure and the Loans at the time owing to
it); provided that (i) except in the case of an assignment to a Lender or an
Affiliate of a Lender, each of the Borrower and the Administrative Agent (and,
in the case of an assignment of all or a portion of a Facility A Commitment or
any Lender's obligations in respect of its LC Exposure, the Issuing Bank) must
give their prior written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) except in the case of an assignment to a Lender or
an Affiliate of a Lender or an assignment of the entire remaining amount of the
assigning Lender's Commitment, the amount of the Commitment of the assigning
Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the
Borrower and the Administrative Agent otherwise consent, (iii) the parties to
each assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation fee of
$3,000, and (iv) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire; provided further that
any consent of the Borrower otherwise required under this paragraph shall not
be required if an Event of Default under clause (f) or (g) of Article VIII has
occurred and is continuing. Upon acceptance and recording pursuant to
paragraph (d) of this Section, from and after the effective date specified in
each Assignment and Acceptance, the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest
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assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to
the benefits of Sections 2.12, 2.13, 2.14, 3.03 and 10.03). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does
not comply with this paragraph (b) shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans and LC Disbursements owing to,
each Lender pursuant to the terms hereof from time to time (the "Register").
The entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, the Issuing Bank and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower, the
Issuing Bank and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement
unless it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent, or the Issuing Bank, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a portion of its
Commitment and LC Exposure and the Loans owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent and the other Lenders shall continue to deal solely and directly
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with such Lender in connection with such Lender's rights and obligations under
this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right
to enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such agreement or instrument
may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in the first proviso
to Section 10.02(b) that affects such Participant. Subject to paragraph (f) of
this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 2.12, 2.13 and 2.14 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.12 or 2.13 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.14
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.14(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any such pledge or assignment to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment
of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such assignee for such Lender as a party hereto.
SECTION 10.05. Survival. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement
and the making of any Loans and issuance of any Letters of Credit, regardless
of any investigation made by any such other party or on its behalf and
notwithstanding that the Administrative Agent, the Issuing Bank or any Lender
may have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended hereunder, and shall continue in
full force and effect as long as the principal of or any accrued interest on
any Loan or any fee or any other amount payable under this
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Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.12, 2.13, 2.14, 3.03, 4.20 and 10.03 and Article IX shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Letters of Credit and the Commitments or the termination of
this Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement
and any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 5.01, this Agreement shall become effective when it
shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in
any other jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
to or for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such
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obligations may be unmatured. The rights of each Lender under this Section are
in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service
of Process.
(A) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
(B) THE BORROWER AND EACH SUBSIDIARY GUARANTOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING
IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR FOR RECOGNITION
OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO
THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT
ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO
BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AGAINST THE BORROWER,
ANY SUBSIDIARY GUARANTOR OR THEIR RESPECTIVE PROPERTIES IN THE COURTS OF ANY
JURISDICTION.
(c) The Borrower and each Subsidiary Guarantor hereby
irrevocably and unconditionally waives, to the fullest extent it may legally
and effectively do so, any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Agreement in any court referred to in paragraph (b) of this Section. Each
of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 10.01. Nothing in
this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS
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AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 10.12. Confidentiality. Each of the Administrative
Agent, the Issuing Bank and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates' directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach
of this Section or (ii) becomes available to the Administrative Agent, the
Issuing Bank or any Lender on a nonconfidential basis from a source other than
the Borrower. For the purposes of this Section, "Information" means all
information received from the Borrower relating to the Borrower or its
business, other than any such information that is available to the
Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis
prior to disclosure by the Borrower; provided that, in the case of information
received from the Borrower after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and
year first above written.
HEFTEL BROADCASTING CORPORATION,
By /s/ KEN WYKER
-------------------------------
Title: Vice President for Legal
Affairs
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SUBSIDIARY GUARANTORS
HEFTEL BROADCASTING TEXAS, L.P.
By Heftel GP Texas, Inc.,
its general partner
HEFTEL GP TEXAS, INC.
HBC BROADCASTING TEXAS, INC.
HBC CHICAGO, INC.
HBC FLORIDA, INC.
HBC-LAS VEGAS, INC.
HBC NEW YORK, INC.
HBC TEXAS, INC.
KCYT-FM LICENSE CORP.
KECS-FM LICENSE CORP.
KESS-AM LICENSE CORP.
KESS-TV LICENSE CORP.
KHCK-FM LICENSE CORP.
KICI-AM LICENSE CORP.
KICI-FM LICENSE CORP.
KLSQ-AM LICENSE CORP.
KLVE-FM LICENSE CORP.
KMRT-AM LICENSE CORP.
KTNQ-AM LICENSE CORP.
KTNQ/KLVE, INC.
LA OFERTA, INC.
LICENSE CORP. NO. 1
LICENSE CORP. NO. 2
MI CASA PUBLICATIONS, INC.
SPANISH COAST-TO-COAST, LTD.
THE TOWER COMPANY, INC.
WADO-AM LICENSE CORP.
WGLI-AM LICENSE CORP.
WLXX-AM LICENSE CORP.
WPAT-AM LICENSE CORP.
WQBA-AM LICENSE CORP.
WQBA-FM LICENSE CORP.
By /s/ KEN WYKER
-------------------------------
Title: Vice President for Legal
Affairs
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WADO RADIO, INC.
TC TELEVISION, INC. TICHENOR LICENSE
CORPORATION TICHENOR MEDIA SYSTEM,
INC. TMS ASSETS CALIFORNIA, INC.
TMS LICENSE CALIFORNIA, INC.
By /s/ MCHENRY T. TICHENOR, JR.
-------------------------------
Title: McHenry T. Tichenor, Jr.,
President
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ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK, as
Administrative Agent,
By /s/ MARY E. BACON
-------------------------------
Title: Mary E. Bacon
Vice President
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ISSUING BANK
THE CHASE MANHATTAN BANK,
as Issuing Bank
By /s/ MARY E. BACON
-------------------------------
Title: Mary E. Bacon
Vice President
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LENDERS
THE CHASE MANHATTAN BANK
By /s/ MARY E. BACON
-------------------------------
Title: Mary E. Bacon
Vice President
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BANK OF MONTREAL
By /s/ RENE ENCARNACION
-------------------------------
Title: RENE ENCARNACION
DIRECTOR
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THE BANK OF NOVA SCOTIA
By /s/ VINCENT J. FITZGERALD, JR.
----------------------------------
Title: VINCENT J. FITZGERALD, JR.
AUTHORIZED SIGNATORY
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UNION BANK OF CALIFORNIA, N.A.
By /s/ GAIL FLETCHER
-------------------------------
Title: Gail L. Fletcher
Vice President
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CIBC, INC.
By /s/ SUSAN E. HANNA
---------------------------------
Susan E. Hanna
Title: Director, CIBC Wood Gundy
Securities Corp., as Agent
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FLEET BANK, N.A.
By /s/ M.A. CERULLO
-------------------------------
M.A. Cerullo
Title: Vice President
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TORONTO DOMINION (TEXAS), INC.
By /s/ WARREN FINLAY
-------------------------------
Title: Warren Finlay
Vice President
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ABN AMRO BANK N.V.
By /s/ LAURIE C TUZO
-------------------------------
Laurie C. Tuzo
Title: Group Vice President
By /s/ LILA JORDAN
-------------------------------
Lila Jordan
Title: Vice President & Director
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CAISSE NATIONALE DE CREDIT AGRICOLE
By /s/ JOHN MCCLOSKEY
-------------------------------
John McCloskey
Title: Vice President
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THE BANK OF NEW YORK
By /s/ JOSEPH P. MATTEO
-------------------------------
Joseph P. Matteo
Title: Vice President
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SUNTRUST BANK, CENTRAL
FLORIDA, N.A.
By /s/ JANET P. SAMMONS
-------------------------------
Title: Janet P. Sammons
Vice President
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MELLON BANK, N.A.
By /s/ LISA M. PELLOW
-------------------------------
Title: Lisa M. Pellow
Vice President
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BANK OF HAWAII
By ELIZABETH O. MACLEAN
-------------------------------
Title: Elizabeth O. MacLean
Vice President
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MERITA BANK LTD
NEW YORK BRANCH
By /s/ FRANK MAFFEI
-------------------------------
Title: FRANK MAFFEI
VICE PRESIDENT
By /s/ JOHN KEHNLE
-------------------------------
Title: JOHN KEHNLE
VICE PRESIDENT
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MICHIGAN NATIONAL BANK
By /s/ STEPHEN E. LUBIN
--------------------------------------
Title: STEPHEN E. LUBIN
Commercial Relationship Manager
Credit Agreement