LOAN AGREEMENT
dated as of April 4, 1997
by and
between
BAL/RIVGAM, L.L.C., as "Borrower,"
and
RIVGAM COMMUNICATORS, L.L.C.,
as "Lender"
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LOAN AGREEMENT
This Loan Agreement (this "Agreement") dated as of April 4,
1997 is entered into by and between Bal/Rivgam, L.L.C., a Delaware limited
liability company ("Borrower"), and RIVGAM COMMUNICATORS, L.L.C., a Delaware
limited liability company ("Lender").
RECITALS:
WHEREAS, Borrower desires Lender to extend a loan to Borrower
in such amount and on such terms as set forth herein to acquire WCS Licenses
pursuant to the WCS Auction; and
WHEREAS, Lender is prepared to make such Loan upon the terms
and subject to the conditions set forth herein only for the purposes of the
Partnership acquiring and operating WCS Licenses.
AGREEMENT:
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the following meanings:
"Applicable Rate": An interest rate, compounded annually,
equal to 15% per annum.
"Business Day": A day other than a Saturday, Sunday or other
day on which commercial banks in New York are authorized or required by law to
close.
"Loan Documents": This Agreement, the Note, and all other
documents executed in connection with this Agreement and/or the Loan.
"Maturity Date": The Fifth (5th) Anniversary of the date
hereof.
"Note": The promissory note substantially in the form of
Exhibit A hereto to be executed by Borrower, payable to the order of Lender.
"Limited Liability Company Agreement": The Partnership
Agreement of Borrower dated as of March 25, 1997.
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"Subsidiary": Any corporation of which fifty percent (50%) or
more of the issued and outstanding voting securities are, directly or
indirectly, owned by Borrower or any Subsidiary of Borrower or any other entity
of which fifty percent (50%) or more of the ownership interests are owned,
directly or indirectly, by Borrower or any Subsidiary of Borrower.
SECTION 1.02. Incorporation of Certain Terms By Reference.
Capitalized terms used herein but not otherwise defined shall have the meanings
specified in the Partnership Agreement as in effect on the date hereof.
ARTICLE II
THE LOAN
SECTION 2.01. The Initial Loan.
(a) The Loan. Lender agrees, on the terms and conditions
hereinafter set forth, to make a loan (the "Initial Loan") to Borrower in the
aggregate principal amount of Twelve million, one hundred and fifty thousand,
one hundred Dollars ($12,150,100). The Initial Loan shall be made immediately
prior to the date that the Borrower is required to make up-front deposits to the
FCC for the WCS Auction and shall be used by Borrower for such purpose and for
the purposes set forth in Paragraph (b) of this Section 2.01.
(b) Mandatory Prepayment.
(1) If after the termination of the WCS Auction,
Borrower has any funds, including Initial Capital Contributions as provided in
the Partnership Agreement, which are not being used, or reasonably held for use,
to fund the 20% down payment (due within 10 business days after release of the
WCS Auction closing notice) for any WCS Licenses won by Borrower in the WCS
Auction, Borrower shall, upon the written demand of Lender, immediately prepay
the Initial Loan in an amount equal to such unused proceeds.
(2) If the FCC shall not grant any WCS Licenses to
Borrower in respect of any WCS Licenses won in the WCS Auction or if any WCS
License granted to Borrower pursuant to the WCS Auction is either transferred or
revoked, Borrower shall, upon the demand of Lender, immediately prepay all
amounts owed by Borrower to Lender under the Loan Documents. If no WCS Licenses
are granted to Borrower, Borrower shall not have to pay any interest or
commitment fees, but only to pay the principal of the Loan.
(3) The net proceeds from the sale by the Partnership
of any assets shall be used to prepay promptly a portion of the Loan equal to
said net proceeds.
(4) Any prepayment under (b)(1) and (b)(3) hereof
shall be applied to the payment of any accrued and unpaid principally before any
application to principal.
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(c) Supplemental Loans. Lender agrees, on the terms and
conditions set forth, to make loans ("Supplemental Loans") to Borrower from time
to time in an aggregate principal amount up to the amount prepaid by Borrower
pursuant to Section 2.01 (b)(l); provided, however, that following the return by
the FCC of any excess up front payment, the total of the Initial Loan and
Supplemental Loans shall not exceed the cost (net of any bidding credits) of all
WCS Licenses granted to Borrower pursuant to the WCS Auction plus $200,000, in
each case reduced by any amounts deemed to be Supplemental Loans pursuant to the
second succeeding sentence. Supplemental Loans shall only be used for the
following purposes:
(i) to fund the remaining 80% payment due after WCS Licenses
are granted;
(ii) to make payments pursuant to the next to last sentence of
Section 1 and the proviso clause of Section 2 of the
Expenses Agreement (the "Expenses Agreement") dated as of
March 25, 1997 among the Borrower and certain members of
Borrower; and
(iii) any other business purposes approved in writing by
Lender;
Supplemental Loans shall also include (1) all reasonable out-of-pocket expenses
(including reasonable attorneys' fees) of Lender pursuant to Section l(b) of the
Expenses Agreement and (2) all reasonable costs and expenses (including
reasonable attorneys fees) (a) incurred by Lender in connection with the
negotiation and preparation of this Agreement and each of the other Loan
Documents and (b) incurred by Lender or the lender to Lender with respect to the
borrowing contemplated by the last sentence of Section 8.06; provided, however,
that the amounts deemed Supplemental Loans under this sentence shall not exceed
$150,000. Lender's obligation to make Supplemental Loans (1) is conditional on
Borrower being in full compliance with all the representations, warranties and
covenants of Borrower contained in the Loan Documents, no Event of Default
hereunder having occurred, and the FCC not having threatened to revoke any WCS
Licenses granted to Borrower in the WCS Auction and (2) shall terminate on the
earlier of the maturity of the Loan (whether at the Maturity Date, by
acceleration or otherwise) or the payment in full of the Loan. The term "Loan"
shall include the twelve million, one hundred and fifty thousand, one hundred
dollar Initial Loan, the Supplemental Loans, interest (including compounded
interest) and all other amounts payable to Lender under the Loan Documents.
(d) Commitment Fees. Borrower shall pay to Lender a commitment
fee of 20% per annum from the date of the Initial Loan on the total Twelve
million, one hundred and fifty thousand, one hundred Dollars ($12,150,100)
commitment to make Loans (including any used portion); provided, however, that
following the return by the FCC of any excess up front payment, the total dollar
amount of such commitment shall be reduced to the cost (net of any bidding
credits) of all WCS Licenses granted to Borrower pursuant to the WCS Auction
plus $200,000 (in each case reduced by any amounts deemed to be the Supplemental
Loans pursuant to the third sentence of Section 2.01(c)). The commitment fees
shall be due and payable, without interest, on the date when the commitment to
make Supplemental Loans shall terminate pursuant to clause (2) of the next to
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last sentence of Section 2.01(c). If the commitment fees are not paid when so
due and payable, the commitment fees shall be deemed to bear interest at twice
the Applicable Rate until the date of payment. The commitment fees shall cease
to accrue on the earlier of the Maturity Date or the payment in full of the
Loan.
(e) Special Fee. In addition to interest, commitment fees and
other payments provided for herein, Borrower shall pay to Lender a special fee
equal to 15% of the Net Profits of Bal/Rivgam from-time to time as and when
realized. With respect to any capital contributions by Lender or James Balitsos
("Balitsos"), or any Affiliate of Lender or Balitsos, to Borrower, up to an
aggregate maximum of 25% of the cost (net of any bidding credits) of WCS
Licenses won by Bal/Rivgam in the WCS Auctions (the "Equity Investment"), there
shall be deemed to be, for purposes of computing Net Profits, an interest
expense equal to 20% plus higher of the prime rate (as set forth in the Wall
Street Journal) or 7% (reset annually on each April 4), compounded annually. The
payment provided for in Section 2(b) of the Letter Agreement dated March 25,
1997, between Borrower and Lynch PCS Corporation G shall not be deemed to be a
cost for purposes of computing Net Profits; however, interest, commitment fees
and payments (other than pursuant to this Section 2.01(e)) under this Agreement
shall be deemed to be costs in computing Net Profits. Net Profits shall mean and
shall be deemed to be realized at the time of (i) any profits received by
Bal/Rivgam from the sale, directly or indirectly, of all or a substantial
portion of the assets of Bal/Rivgam (assuming the payment of the principal and
deemed interest expense on the Equity Investment), (ii) any payments or
distributions by Bal/Rivgam, including loans, to the members of Bal/Rivgam or
their Affiliates (other than payments of principal and deemed interest expense
on the Equity Investment, payments pursuant to this Agreement and payments
pursuant to the Expenses Agreement), (iii) the proceeds from any sale, directly
or indirectly, including a merger or similar transaction, by any members of
Bal/Rivgam of any of their interest in Bal/Rivgam and/or (iv) the proceeds from
any sale or in any member of Bal/Rivgam, whether by an Affiliate, to a person
that is not an Affiliate of Bal/Rivgam. The term "Affiliate" shall have the
meaning in Rule 12b-2 under the Securities Exchange Act of 1934, as amended .
Net Profits shall not include any amounts received by Borrower pursuant to this
Loan Agreement (other than pursuant to this Section 2.01(e)). Any recipient of
any distributions or proceeds from sale shall be responsible, in addition to
Bal/Rivgam, for the payment of any amounts due under this Section 2.01(e). Any
dispute under this Section 4.01(e) shall be subject to arbitration in New York
City or Rye, New York, in accordance with the rules of the American Arbitration
Association.
SECTION 2.02. The Note. The Loan made by Lender pursuant
hereto shall be evidenced by the Note, representing the obligation of Borrower
to pay the aggregate unpaid principal amount of the Loan made by Lender, with
interest thereon as prescribed in Section 2.05.
SECTION 2.03. Payment of Principal. The entire unpaid
principal amount of the Loan, together with all accrued and unpaid interest
thereon, shall be due and payable on the Maturity Date.
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SECTION 2.04. Optional Prepayment. Borrower may, at its
option, prepay the Loan, without premium except as provided in the Note, in
whole or in part at any time and from time to time; provided that Lender shall
have received from Borrower notice of any such prepayment at least five (5)
Business Days prior to the date of the proposed prepayment, in each case
specifying the date and the amount of prepayment. Partial payments hereunder
shall be in an aggregate principal amount of $50,000 or any integral multiple
thereof. Any such prepayments shall be applied to the payment of any accrued and
unpaid interest before any application to principal.
SECTION 2.05. Interest Rate and Payment Dates.
(a) Interest Rate and Payment. The Loan shall bear interest on
the unpaid principal amount thereof from the date made through maturity (whether
at the Maturity Date, by acceleration or otherwise) at the Applicable Rate. All
accrued and unpaid interest on the Loan shall be compounded annually and payable
on the Maturity Date. Interest on the Loan shall be computed on the basis of a
360-day year for the actual number of days elapsed. In computing interest on the
Loan, the date of the making of the Loan shall be included and the date of
payment of the Loan shall be excluded.
(b) Default Interest. Upon the occurrence, and during the
continuation of, any Event of Default, the principal amount of the Loan and any
interest accrued and unpaid thereon shall bear interest at the Applicable Rate
plus 3% per annum.
SECTION 2.06. Security, Other.
(a) Security. All amounts payable pursuant to the Loan
Documents shall be secured to the extent permitted by law by a security interest
in all the assets of Borrower.
(b) Not Exceed Maximum Rate. Notwithstanding the foregoing,
neither interest on the Loan nor commitment and other fees shall exceed the
highest rate permitted by applicable law.
ARTICLE III
GENERAL PROVISIONS CONCERNING THE LOAN
SECTION 3.01. Payments. Borrower shall make each payment of
principal, interest and fees hereunder and under the Note, without setoff or
counterclaim, not later than 11:00 a.m. New York City time, on the day when due,
in lawful money of the United States of America to Lender by wire transfer sent
to an account designated in writing from time to time by Lender, in immediately
available funds. Payments received after such time shall be deemed to have been
paid by Borrower on the next succeeding Business Day.
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SECTION 3.02. Payment on Non-Business Days. If any payment to
be made hereunder or under the Note shall be stated to be due on a day which is
not a Business Day, such payment may be made on the next succeeding Business
Day, and with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension.
SECTION 3.03. Conditions; Documentation. As a condition to the
making of the Loan, Borrower will execute and deliver or cause to be executed
and delivered to Lender such documents, instruments and certificates as Lender
may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants as follows:
SECTION 4.01. Organization. Borrower is a limited liability
company duly formed and validly existing and in good standing under the laws of
the State of Delaware, is duly qualified to transact business in all
jurisdictions in which the conduct of its business requires such qualification,
and has full partnership power and authority to conduct its business and to
enter into and perform its obligations under the Loan Documents.
SECTION 4.02. Authorization. The execution, delivery and
performance of the Loan Documents by Borrower has been duly authorized by all
necessary company action on the part of Borrower. Each Loan Document has been
duly executed by Borrower and delivered by Borrower to Lender and constitutes
the legal, valid and binding obligation of Borrower, enforceable in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
insolvency or other laws affecting creditors' rights generally and the exercise
of judicial discretion in accordance with general equitable principles.
SECTION 4.03. No Conflict. The execution, delivery and
performance of each Loan Document by Borrower, and the compliance with the terms
and conditions hereof and thereof by Borrower, does not, with or without the
giving of notice or the lapse of time or both, conflict with, breach the terms
or conditions of, constitute a default under, or violate the (i) Limited
Liability Company Agreement, (ii) any agreement to which Borrower is a party, or
(iii) any judgment, decree, order, law, rule or regulation applicable to
Borrower.
SECTION 4.04. Litigation. There is no unsatisfied judgment,
award, order, writ, injunction, arbitration decision or decree outstanding or
any litigation, proceeding, claim or investigation pending or, to the best
knowledge of Borrower, threatened against Borrower which may adversely affect
the ability of Borrower to enter into and perform its obligations under Loan
Documents.
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SECTION 4.05. Accuracy of Representations and Warranties;
Disclosure. The representations and warranties of the Control Group Member set
forth in the Limited Liability Company Agreement are true and correct in all
material respects. No representation or warranty of Borrower set forth in this
Agreement, or any certificate or written statement furnished by Borrower or
Lender for use in connection with the transactions contemplated hereby, and no
representation or warranty of the Control Group Member set forth in the Limited
Liability Company Agreement, contains any untrue statement of material fact or
omits to state a material fact necessary in order to make the statements
contained herein or therein not misleading.
ARTICLE V
AFFIRMATIVE COVENANTS
Borrower covenants that so long as any of the Loan or any
obligation of Borrower under the Loan Documents remains outstanding, and until
payment in full of all obligations of Borrower subject hereto, Borrower shall:
SECTION 5.01. Punctual Payments. Punctually pay the interest
and principal in respect of the Loan and all other obligations under any of the
Loan Documents at the times and place and in the manner specified in the Loan
Documents.
SECTION 5.02. Accounting Records. Maintain adequate books and
records in accordance with generally accepted accounting principles consistently
applied ("GAAP"), and permit any representative of Lender, at any reasonable
time, to inspect, audit and examine such books and records, to make copies of
the same, and to inspect the properties of Borrower.
SECTION 5.03. Financial Statements and Reports. Provide to
Lender the following, in form and detail satisfactory to Lender:
(a) not later than ninety (90) days after the end of each
fiscal year of Borrower, an audited balance sheet of Borrower as of the end of
such fiscal year, and the related audited statements of operations and cash
flows of Borrower for the twelve-month period ended on the last day of such
fiscal year, in each case, prepared in accordance with GAAP, together with an
auditor's report thereon prepared by a nationally recognized firm of certified
public accountants;
(b) not later than thirty (30) days after the end of each
fiscal quarter of Borrower, an unaudited balance sheet of Borrower as of the
last day of such fiscal quarter and the related unaudited statements of
operations and cash flows of Borrower for the three (3) month period ended on
the last day of such fiscal quarter, in each case, prepared in accordance with
GAAP (subject to normal year-end adjustments and the absence of footnotes);
(c) within five (5) days of receipt by members of the Company
Committee, any written report (including any Business Plan or any amendment
thereto) provided to the members of
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the Company Committee concerning the business, assets, condition (financial or
otherwise) or prospects of the Borrower or its business; and
(d) from time to time such other information as Lender may
reasonably request.
SECTION 5.04. Compliance. Maintain all WCS Licenses and all
other licenses, permits, governmental approvals, rights, privileges and
franchises necessary for the conduct of Borrower's business; conduct its
business in an orderly and regular manner and in a manner consistent with the
terms of the Limited Liability Company Agreement; and comply with the provisions
of the Limited Liability Company Agreement and all laws, rules, regulations and
orders of any governmental authority applicable to Borrower or its business.
SECTION 5.05. Insurance. Maintain and keep in force insurance
of the types and in amounts customarily carried in lines of business similar to
Borrower's, including but not limited to fire, extended coverage, public
liability, property damage and workers' compensation, carried with companies and
in amounts satisfactory to Lender, and deliver to Lender from time to time at
Lender's request schedules setting forth all insurance then in effect.
SECTION 5.06. Facilities. Keep all Borrower's properties
useful or necessary to Borrower's business in good repair and condition, and
from time to time make necessary repairs, renewals and replacements thereto so
that Borrower's properties shall be fully and efficiently preserved and
maintained.
SECTION 5.07. Taxes and Other Liabilities. Pay and discharge
when due any and all indebtedness, obligations, assessments and taxes, both real
or personal and including federal and state income taxes, except such as
Borrower may in good faith contest or as to which a bona fide dispute may arise,
provided provision is made to the satisfaction of Lender for eventual payment
thereof in the event that it is found that the same is an obligation of
Borrower.
SECTION 5.08. Notification. Promptly give notice in writing to
Lender of (i) the occurrence of any Event of Default or any event reasonably
likely to result in the occurrence of an Event of Default, or (ii) any material
adverse change in the business, assets, condition (financial or otherwise) or
prospects of Borrower.
SECTION 5.09. Supplemental Loans Replacement. At the request
of Lender, Borrower will use its best efforts to refinance the Loan.
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ARTICLE VI
NEGATIVE COVENANTS
Borrower further covenants that so long as the Loan or any
obligation under the Loan Documents remains outstanding, and until payment in
full of all obligations of Borrower subject hereto, Borrower will not without
the prior written consent of Lender:
SECTION 6.01. Use of Proceeds. Use any of the proceeds of the
Loan except for the purposes stated in Section 2.01 hereof.
SECTION 6.02. Conduct of Business. Conduct any business other
than the Company Business.
SECTION 6.03. Merger; Consolidation. Etc.. Merge, consolidate
or combine with any other Person or sell all or substantially all of Borrower's
assets or properties.
SECTION 6.04. Acquisition and Disposition of Assets. Acquire,
sell, lease, exchange, transfer, mortgage, pledge, license or dispose of assets
in any transaction or series of related transactions involving consideration of
a value in excess of $100,000 in any 12-month period or $300,000 in the
aggregate.
SECTION 6.05. Incurrence of Indebtedness. Incur indebtedness
for borrowed money, or refinance, modify or extend any indebtedness of Borrower
for borrowed money.
SECTION 6.06. Capital Expenditure; Investments. Make any
capital expenditure, investment or capital contribution, or any commitment to
make any capital expenditure, investment or capital contribution in an amount in
excess of $100,000 in any 12-month period or $300,000 in the aggregate.
SECTION 6.07. Loans; Guarantees. Make any loan or guarantee
any indebtedness or liability of any other Person.
SECTION 6.08. Partnership Distributions. Distribute any assets
or property of Borrower to any Member of Borrower or redeem, repurchase or
otherwise retire for value any company interest of any Member of Borrower.
SECTION 6.09. Material Agreements. Enter into (i) any
Affiliation Agreement, (ii) any joint venture, partnership or other similar
agreement or (iii) any agreement, contract or lease that is entered into other
than in the ordinary course of business or that involves the furnishing or
receipt of consideration to or by Borrower with value in excess of $100,000 in
any 12-month period or $300,000 in the aggregate.
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SECTION 6.10. Related Party Transaction. any Related Party
Transaction. Enter into any Related Party Transaction.
SECTION 6.11. Modification of WCS Licenses. Surrender, not
seek renewal, or seek the transfer, of any WCS License held by Borrower or agree
to any material modification to any WCS License held by Borrower.
SECTION 6.12. Pledge of Assets. Mortgage, pledge, grant or
permit to exist a security interest in, or lien upon, any of its assets of any
kind, now owned or hereafter acquired.
SECTION 6.13. Subsidiary. Create or acquire any interest in
any Subsidiary.
SECTION 6.14. Change in Benefits. Continue to Participate in
the WCS Auction process or acquire any WCS License awarded to Borrower pursuant
to the WCS Auction, if for any reason any of the benefits (including without
limitation bidding credits) available to a very small business as provided in
the FCC Rules as of the date hereof shall cease to be available to the Borrower.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. Events of Default. The occurrence of any of the
following events shall constitute an event of default hereunder (an "Event of
Default"):
(a) Borrower shall fail to pay any portion of the principal or
interest of the Loan or other amount payable hereunder or under the Note when
due; or
(b) Any representation or warranty made by Borrower herein or
in connection with any other Loan Document, shall prove to have been incorrect
in any material respect when made; or
(c) Borrower shall default in any material respect in the
timely performance of or compliance with any term or condition contained in any
Loan Document, and such default shall not have been remedied or waived for
twenty (20) Business Days after such failure, or any Partner (other then Lender)
shall default in any material respect in the performance of or compliance with
any term or condition of the Partnership Agreement or the Expenses Agreement,
and such default shall not have been remedied within ten (10) Business Days of
such default; or
(d) Borrower shall (i) have an order for relief entered with
respect to it under any federal or state bankruptcy law or any similar law
relating to the enforcement of creditors rights generally (a "Bankruptcy Law")
(ii) not pay, or admit in writing his inability to pay its debts generally as
they become due, (iii) make an assignment for the benefit of its creditors, (v)
apply for,
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seek, consent to, or acquiesce in, the appointment of a receiver, custodian,
conservator, trustee, examiner, liquidator or similar official for his or any
substantial part of his property, (vi) institute any proceeding seeking an order
for relief under any Bankruptcy Law or seeking to adjudicate it a bankrupt or
insolvent, or seeking dissolution, winding up, liquidation, reorganization,
arrangement, adjustment or composition of it or its debts under any law relating
to bankruptcy, insolvency or reorganization or relief of debtors or fail to file
an answer or other pleading denying the material allegations of any such
proceeding filed against it, (vii) take any action to authorize or effect any of
the foregoing actions, or (viii) fail to contest in good faith any appointment
or proceeding described in this Subsection 7.01(d); or
(e) A receiver, custodian, conservator, trustee, examiner,
liquidator or similar official shall be appointed for Borrower or any
substantial part of its property, or a proceeding described in Subsection
7.01(d)(v) shall be instituted against Borrower and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period
of 60 consecutive days;
(f) There shall have occurred an event of dissolution of the
Borrower within the meaning of Section 9.1 of the Limited Liability Company
Agreement; or
(g) The FCC shall have revoked, or has instituted proceedings
to revoke, any WCS Licenses granted to the Borrower in the WCS Auction; or
(h) The Control Group Member shall have Transferred any of its
interest in the Borrower.
SECTION 7.02. Acceleration; Remedies Upon Occurrence of Event
of Default. Upon the occurrence of any Event of Default described in clause (d),
(e), (f), (g), (h) or (i) of Section 7.01, the Loan (together with accrued
interest thereon) and all other amounts owing under this Agreement, the Note and
the other Loan Documents shall immediately become due and payable, and upon the
occurrence of any other Event of Default, Lender may, by notice to Borrower,
declare the Loan (together with accrued interest thereon) and all other amounts
owing under this Agreement and the other Loan Documents to be due and payable.
Except as expressly provided above in this Section, presentment, demand, protest
and all other notices of any kind are hereby expressly waived.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Costs, Expenses and Attorneys' Fees. Borrower
shall pay to Lender immediately upon demand the full amount of all reasonable
costs and expenses (including reasonable attorneys' fees) incurred by Lender in
connection with (a) the preparation of amendments and waivers to the Loan
Documents, (b) the enforcement of Lender's rights and/or the collection of any
amounts which become due to Lender under any of the Loan Documents, and (c) the
prosecution or
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defense of any action in any way related to any of the Loan Documents, including
without limitation any action for declaratory relief.
SECTION 8.02. Amendments, Etc. No amendment or waiver of any
provision of the Loan Documents nor consent to any departure by Borrower or
Lender therefrom, shall in any event be effective unless the same shall be in
writing and signed by the other party, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 8.03. Notices, Etc. Except as otherwise set forth in
this Agreement, all notices and other communications provided for hereunder
shall be in writing (including telegraphic, telex or facsimile communication)
and mailed or telegraphed or telexed or sent by facsimile or delivered, to
Borrower or Lender at their respective addresses set forth on the signature page
hereof; or, as to any other Person, at such other address as shall be designated
by such Person in a written notice to the other parties. All such notices and
communications shall be effective when deposited in the mails, sent by telex or
sent by facsimile, respectively, except that notices and communications to
Lender pursuant to Article II or VII shall not be effective until received by
Lender.
SECTION 8.04. Indemnification. Borrower agrees to indemnify
and hold harmless Lender and the Collateral Agent and their respective
affiliates, directors, officers, employees, agents and advisors (each, an
"Indemnified Party") from and against any and all claims, damages, losses,
liabilities and expenses (including without limitation reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of, the preparation for a defense of, any investigation, litigation or
proceeding arising out of, related to or in connection with the Loan Documents,
the proposed or actual use of the proceeds therefrom or any of the other
transactions contemplated hereby or thereby, whether or not such investigation,
litigation or proceeding is brought by Borrower, creditors of Borrower, an
Indemnified Party or any other Person or an Indemnified Party is otherwise a
party thereto, and whether or not the transactions contemplated hereby or by any
other Loan Document are consummated, except to the extent such claim, damage,
loss, liability or expenses is found in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from such Indemnified Party's
gross negligence or willful misconduct.
SECTION 8.05. No Waiver; Remedies. No failure on the part of
Lender or Borrower to exercise, and no delay in exercising, any right under any
of the Loan Documents shall operate as a waiver thereof, nor shall any single or
partial exercise of any right under any of the Loan Documents preclude any other
or further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
SECTION 8.06. Assignments and Participation. Lender may sell,
assign, transfer, negotiate or grant participation to any other party in all or
part of the obligations of Borrower outstanding under the Loan Documents without
Borrower's prior written consent. Lender may, in connection with any actual or
proposed assignment or participation, disclose to the actual or
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proposed assignee or participant, any information relating to Borrower. Lender
may borrow the funds necessary to make Loans to Borrower under this Loan
Agreement and may assign this Agreement and the Note as security for such
borrowing.
SECTION 8.07. Effectiveness Binding Effect; Governing Law.
This Agreement and each other Loan Document shall be binding upon and inure to
the benefit of Borrower, Lender and their respective successors and assigns,
except that Borrower shall not have the right to assign his rights hereunder or
any interest herein without the prior written consent of Lender. THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO ITS CHOICE OF
LAW DOCTRINE.
SECTION 8.08. Waiver of Jury Trial. BORROWER AND LENDER HEREBY
AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION AND THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS WAIVER
IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN
ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING,
WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW AND STATUTORY CLAIMS. LENDER AND BORROWER EACH ACKNOWLEDGE THAT
THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT
EACH HAS ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT
EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS.
LENDER AND BORROWER FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS
WAIVER WITH LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT NAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS AGREEMENT, THE LOAN DOCUMENTS, OR TO ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THE LOAN.
SECTION 8.09. Consent to Jurisdiction; Venue; Agent for
Service of Process. All judicial proceedings brought against Borrower with
respect to the Loan Documents may be brought in any state or Federal court of
competent jurisdiction in the State of Delaware, and by execution and delivery
of this Agreement, Borrower accepts for itself and in connection with its
properties, generally and unconditionally, the nonexclusive jurisdiction of the
aforesaid courts, and irrevocably agrees to be bound by any judgment rendered
thereby in connection with the Loan Documents.
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Borrower irrevocably waives any right it may have to assert the doctrine of
forum non convenient or to object to venue to the extent any proceeding is
brought in accordance with this Section 6.09.
SECTION 8.10. Entire Agreement. The Loan Documents embody the
entire agreement and understanding between the parties hereto with respect to
the subject matter hereof and supersede all prior agreements and understandings
between the parties hereto relating to the subject matter hereof.
SECTION 8.11. Separability of Provisions. In case any one or
more of the provisions contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
SECTION 8.12. Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
SECTION 8.13. Independence of Covenants. All covenants
hereunder shall be given independent effect so that if a particular action or
condition is not permitted by any of such covenants, the fact that it would be
permitted by an exception to, or be otherwise within the limitations of, another
covenant shall not avoid the occurrence of an Event of Default if such action is
taken or condition exists.
SECTION 8.14. Survival of Representations. All representations
and warranties of Borrower contained in any Loan Document shall survive delivery
of the Note and the making of the Loan herein contemplated.
SECTION 8.15. Non-Recourse to Members. Lender shall have no
recourse against the Company Committee members or any Member, nor any of their
respective officers, directors, employees, agents, shareholders, partners or
controlling persons, nor any of their respective assets (except to the extent
such assets are also assets of the Borrower), for the payment of any principal
of or interest on the Loan, commitment fees, or any other amount due under any
Loan Document, or for the breach of any representation, warranty, covenant or
agreement under the Loan Document, other than (i) any covenant or agreement set
forth in Sections 6.2 and 6.4 of the Limited Liability Company Agreement or (ii)
as provided in the next to last sentence of Section 2.01(e).
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Liability Company Agreement) under any Loan Document.
"Lender":
RIVGAM COMMUNICATORS, L.L.C.
By: /s/ Stephen G. Bondi
---------------------------------------
Name: Stephen G. Bondi
Title:
"Borrower":
BAL/RIVGAM, L.L.C.
By: /s/ James Balitsos
---------------------------------------
Name: James Balitsos
Title: Control Group Member
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EXHIBIT A
PROMISSORY NOTE
$12,150,100 April 4, 1997
FOR VALUE RECEIVED, Bal/Rivgam, L.L.C., a Delaware limited liability
company ("Borrower"), promises to pay to Rivgam Communicators, L.L.C. ("Lender")
or order, by wire transfer sent to an account designated in writing to Borrower
from time to time by the holder hereof (or in such other manner or at such other
place as the holder hereof shall notify Borrower in writing), the principal
amount of Twelve Million, One Hundred and Fifty Thousand, One Hundred Dollars
($12,150,100) or so much thereof as may have been loaned or deemed loaned by
Lender to Borrower pursuant to the Loan Agreement, with interest from the date
hereof on the unpaid principal balance hereunder at the rate of interest set
forth in that certain Loan Agreement of even date herewith between Borrower and
Lender (the "Loan Agreement"), including, without limitation, default interest
as set forth in Section 2.04 of the Loan Agreement. (Capitalized terms used
herein and not otherwise defined shall have the meanings given to such terms in
the Loan Agreement). The principal amount under this Note, and all accrued and
unpaid interest thereon, shall be due and payable on the Maturity Date, unless
the Maturity Date is extended or otherwise modified pursuant to the Loan
Agreement.
Each payment under this Note shall first be credited against accrued
and unpaid interest, and the remainder shall be credited against principal. This
Note may be prepaid in whole or in part at any time, after five (5) Business
Days written notice of Borrower's intention to make any such prepayment, which
notice shall specify the date and amount of such prepayment. Partial payment
hereunder shall be in an aggregate principal amount of Fifty Thousand Dollars
($50,000) or any integral multiple thereof. The written notice of Borrower to
make a prepayment hereunder shall create an obligation of Borrower to pay the
amount specified on the date specified in such notice. Any prepayment shall be
without penalty except that interest shall be paid to the date of payment on the
principal amount prepaid.
Principal and interest shall be payable in lawful money of the United
States of America.
Upon the occurrence of an Event of Default under the Loan Agreement the
holder hereof may, at its option, without notice to or demand upon Borrower or
any other party, except as otherwise provided in the Loan Agreement, declare
immediately due and payable the entire principal balance hereof together with
all accrued and unpaid interest hereon, plus any other amounts then owing
pursuant to this Note or the Loan Agreement, whereupon the same shall be
immediately due and payable. On each anniversary of the date of any default
hereunder and while such default is continuing, all interest which has become
payable and is then delinquent shall, without curing the default hereunder by
reason of such delinquency, be added to the principal amount due under this
Note, and shall thereafter bear interest at the same rate as is applicable to
principal. In no event shall
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such interest or other amounts be charged under this Note which would violate
any applicable usury law.
If any default occurs in any payment due under this Note,
Borrower promises to pay all reasonable costs and expenses, including reasonable
attorneys' fees and expenses, incurred by each holder hereof in collecting or
attempting to collect the indebtedness under this Note, whether or not any
action or proceeding is commenced, and hereby waives the right to plead any and
all statutes of limitation as a defense to a demand hereunder to the full extent
permitted by law. None of the provisions hereof and none of the holders' rights
or remedies hereunder on account of any past or future defaults shall be deemed
to have been waived by the holders' acceptance of any past due installments or
by any indulgence granted by the holder to Borrower.
Borrower waives presentment, demand, protest and notice
thereof or of dishonor, and agree that they shall remain liable for all amounts
due hereunder notwithstanding any extension of time or change in the terms of
payment of this Note granted by any holder hereof, any change, alteration or
release of any property now or hereafter securing the payment hereof or any
delay or failure by the holder hereof to exercise any rights under this Note or
the Loan Agreement.
All amounts payable by Borrower pursuant to the Loan Documents shall be
secured by a security interest in all of the assets of Borrower. Lender's
recourse against any Partner of the Lender (and certain others) for the payment
of the principal of, interest on or other sums payable under this Note shall be
limited as set forth in Section 8.15 of the Loan Agreement.
Each Loan, or other credit extension made under this Note will be
evidenced by a written record made by Lender indicating the amount and date of
such transaction. Such records of Lender shall be deemed by Borrower and Lender
to be sufficient evidence of loans made, or credit extended under this Note.
This Note shall be governed by, and construed in accordance with, the
laws of the State of Delaware without giving effect to its choice of law
doctrine.
IN WITNESS WHEREOF, Borrower has caused this Note to be duly executed
the day and year first above written.
BAL/RIVGAM, L.L.C.
By: __________________________________________
Name: James Balitsos
Title: Control Group Member
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